2 Special Suits Discuss provisions relating to suit by or against Government and a requirement of issuance of notice under section 80, CPC. What are consequences of non-issuance of notice? A: Sections 79 to 82 read with Order 27 of the Code deals withthe procedure fission of suit by oF against government and public officer in theis official of capacity section 79 and Order 27 Rule 3 provides that in every suit by or against Goverment, the authority to be named as plaintiff or defendant, a the eae may be, shall be - (@ Incase of a suit by ot against the Central Government, the Union of India (b) Incase of suit by or against State Government, the State. Theres no need to mention in detail the name and address of such plaintiff or ‘endantin the plain, Rule 5A further provides that where suits fled by or against public officer in official capacity, the government shall be made a party to such suit, Rule of notice Section 80 of the Code contains the rule of notice. It provides that no suit shall ‘einstinted by or against government or public officer in respect of any act done or Ppored tobe done in hs offical capacity unless two months prior notice is sent in ‘iting to or left at the office of: @ Incase of suitagainst Central Government except where it relates to railway, Secretary to that Government. ©) In case of suit against Central Government where it elates to railway, the General Manager of that Railway. © In case of suit against Government of State of Jammu & Kashmir, the Chief Secretary to that Government ot any other authorized officer of Government, © Incase of Suit against State Government, a Secretary to that Gove at Collector of the district, © Incase of Public officer, to him, 2 103 Samarth Agrawal BooksQ& A: Code of Civil Procedure Essentials of notice Following are the essentials of notice under Section 80(1)- @ Name, description and place of residence of the person giving notice, (©) Statement of the cause of action; (© Relief claimed by him. ‘The primary object of the notice under Section 80 isto afford an opportunity, the Government or public officer to settle the claim put forward by the prospective plaintiff and to avoid unnecessary litigation Consequence of non-issuance of notice: Provisions of Section 80 are mandatory and must be strictly complied with. Failure to serve notice complying with the terms of Section 80 will make the suit not maintainable. Section 80 uses the words ‘no suit shall be instituted’, There is bat to the institution of suit without complying with the terms of Section 80. In Prem Lal Nahata v. Chandi Prasad Sikatia, (2007) 2SCC 551 Supreme Court held that plaints liable to be rejected if the averments in the plaint indicate the absence of notice. Exception of the rule of notice es ee sue ofinotice Section 80(2), inserted vide Amendment Act of 1976, lays down the exception | to the rule of notice and the plaintiff can institute a suit against Government: ‘or public officer ift @ the suitis filed to obtain immediate and urgent relief against the Governmeat oF public officer in respect of any act done or purported to be done in his official capacity, and Gi) The leave of the court is obtained. If however, after heating the parties, the court is of the view that no urgent 8 exists is made out under Section 80(2), it may return the plaint to be filed i compliance of Section 80(1). The permission granted by the court under Seco 80(2) is with respect of institution of suit and no relief shall be granted by the court parte without hearing the government or Public officer concerned. 104 Samarth Agrawal BooksQ & A: Code of Civil Procedure Effect of error in notice Effect of error in notice Section 80(3) provides that no suitinstituted against government or public officer shall be dismissed merely on the ground of any ertot of defect in notice referred to in Section 80(1) if such notice is duly served and properly contains the description of plaintiff and the cause of action and relief claimed is substantially indicated. Q: A plaintiff gives notice under Section 80 of Civil Procedure Code and institutes a suit before two months but is allowed to withdraw the same with liberty to file a fresh suit. Is he entitled to file a fresh suit without a fresh notice? Explain. A. : Section 80 of the Code provides for a notice before institution of suit against government or against public officer in respect of any act purporting to be done by such public officer in his official capacity, until expiration of two months next after notice in writing has been served, stating the cause of action etc, A suit cannot be instituted before the expiry of two months of notice. Suit instituted before expiry of two months period is not maintainable. According to the facts, plaintiff had given notice under Section 80 of the Code but instituted the suit before expiry of the stipulated period of two months. Court allowed the plaintiff to withdraw the suit, with liberty to file a fresh suit. The previous suit instituted before expiry of two months period was not maintainable. Bur the fresh suit filed on expiry of the stipulated period of two months from the service of statutory notice, earlier served, would be maintainable. Therefore, before filing of fresh suit, no fresh notice under Section 80 would be required to be served upon the opposite party. —_—— Q: What is an ‘inter-pleader suit'? When and by whom can it be instituted? ee A.: Asa general rule in majority of cases, there is a dispute between plaintiff and the defendant, An interpleader suitis, however, an exception to this rule where the real dispute is not between the plaintiff and the defendant but between the defendants Who interplead against each other. ‘To interplead’ means to litigate and settle the point of controversy’. Section 88 read with Order 35 of the Code provides for interpleader suit. Samarth Agrawal Books ieQ & A: Code of Civil Procedure Section 88 provides that in interpleader suit, there is a certain sum of money or debt or other property in dispute between the defendants only and itis in the possession or custody of the plaintiff. The plaintiff claims no interest in it except for charges or costs and he is ready to deliver it to the rightful claimant Conditions to be followed Section 88 of the Code lays down following conditions which must be fulfilled before an interpleader suit is instituted— @ There must be some debt, sum of money or other property movable or immovable in dispute. @ Two or more persons must be claiming it adversely to one another, Gi) The person from whom such debt, money or property is claimed must not be claiming interest thereon other than the charges and costs and he must be ready and willing to pay or deliver it to the rightful claimant. (v) There must be no suit pending wherein the rights of rival claimants can be properly adjudicated. For example, A is in a possession of property claimed by B and C adversely. A does not claim any interest in the property and is ready to deliver it to the rightful claimant. A can institute an interpleader suit against B and C. Procedure to be followed Order 35 lays down the procedure for interpleader suits which:are as under: 1. The plaint of interpleader suit shall also contain following statements: © That the plaintiff claims no interest in the st subject-matter in dispute other than the charges and costs, ‘The claims have been made by the defendants severally. There is no collusion between the plaintiff and any of the defendants. on a charge on the thing claimed, 3. At the first hearing, the court may declare from all liability, award him costs and dis can also retain all the parties till the disp, that the plaintiff is discharged miss him from the suit. The court ‘osal of the suit. 106 Samarth Agrawal BooksQ.& A: Code of Civil Procedure | 4. Where adjudiention of suit is not possible at frst heating, the court may direct framing of issues between the parties and proceed with the trial of the suit accordingly. 0 cannot file interpleader suit “According to Order 35 Rule § an agent and tenant cannot compel their principal nd landlord, respectively, ro interplend with other persons other than those claiming ough such principal or landlord, ~~ For example, A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully obtained from him by A and claims them from B. B cannot institute an interpleader suit against A and C, ‘X lets out certain lands to ‘Y”. ‘A? alleges that land never belonged to & and claims rent from *¥’. °Y’ institute an interpleader suit against ‘A’ and ‘X?. Will it lie? A. : The present problem is based on Order 35 Rule 5. The relevant part of 5 of Order 35 on which this problem is based provides is based provides that a # cannot institute an interpleader suit agninst the landlord. In the given problem ' the landlord and °Y” is the tenant. Thus, in view of the Rule 5 of Order 35, °Y" ‘or bring an interpleader suit against ‘X’, Jets out certain lands to Shyam. After the death of Ram, Sone of Ram namely Mohan and Sohan separately claim rent from Shyam on the ground of ownership acquired after partition. Shyam institutes an interpleader suit against Mohan and Sohan, Is the interpleader suit filed by Shyam against Mohan and sohan maintainable at law. Give reasons in support of your answer and also refer relevant provisions, _A-? The present problem is based on Order 35 Rule 5, According to the general tmbodied in Order 35 Rule 5 a tenant cannot compel the landlord to interplead a°Y Perron. But this general rule is subject to an exception incorporated in same ion. A tenant can compel the landlord to interplead with other person if such Person is making claim through such’landlord, In the instant problem both Samarth Agrawal Books aoQ&A: Code of Giri! Procedure | Mohan and Sohan being the son of Ram (landlord) making claim of rent landlord, Ths, inthe given case interplender suit filed by Shyam aginst Noha, Sohanis maintainable, ‘W deposits a box of jewels with ‘B as his agent. He then wnt ‘€ for the purpose of making the jewels to ‘C’ a security fog, debt due from himself to ‘CA? afterwards alleges that Cs deb satisfied and ‘C alleges the contrary: Both claim the jewels fron ‘B, Can B’ institute an interpleader suit against ‘A? and °C? Gig reasons and also refer relevant provisions. ‘AL: The present problem is based on illustration (b) of Order 35 Rule § ‘According tothe general rule embodied in Order 35 Rule 5 an agent cannot compa the principals to interplead with any person. But this general rule is subject to an exception incorporated in same provision, An agent can compel the principal to interplead with other person ifsuch other person is making claim through such pind, In this problem ‘C’ is making claim of jewel through the principal ie, ‘. Thus, in view of the relevant provision made in Order 35, Rule 5 itself B? can instnate a0 interpleader suit ageinst ‘8’ and ‘C. Se Q: Explain the procedure for institution of suit by or against firms? —————___————S—i A. Order 30 of the Code provides for suits fled by or against firms. Rule! Provides that every suit filed by or against the persons as partners shal be nthe ae of the frm of which he were pares when cause of acon acrue, In suchas 4ny pry to sultmay apply tothe cour fra statement ofthe names and aes such partners Te plein in sy ogi fm shal be ned and eis any one ofthe partners ofthe frm, Disclosure of name of partners een inane oe Fares Rule 2 provides tha where the sutis instutedin the name of the firma dees is entitled to ask forthe disclosure of the names of the partners where suit Bed themin he firms name, The court may, on an application, stay the proestiags 8% the plaintiff fails to comply with the demand of defendant... « “ave | ” Samarth Agrawal BooksQ&A? Code of Qivil Procedure Summons © Rule 3 provides for service of summons upon the firm and its partners, Tecan served 0% = (®) Any of the partners of firm, or b (© Where the firm is dissolved, every person to whom the plaintiff wants to Any person having control or management of firm's business in India, or make liable, Every such summons shall via notice inform in which capacity the summons in served upon them [Rule 5}. In absence of such notice, the person shall be deemed to ‘be served a8 a partner, b Death of partner + According to Rule 4 where a partner dies pending suit, it will not be necessary to join his legal representative as a patty to the suit unless: @) Such legal representative applies to the court to be added as a party, or ©) Such legal representative secks to enforce any claim against survivor or survivors, Appearance of partners ae oe parinee Rule 6 provides that the partners shall appear before the court individually and _ Subsequent proceedings shall continue firm's name. Rule7 provides that if a person "is served summon in capacity of a person having control or management of the _ firm's business, he need not appear unless he is partner, Rule 8 provides that where a person denies that he was a partner at a material _ me, he may enter an appearance under protest, He ot the plaintiff may apply to the _ “Ourt to determine the same. If the court holds that he was a partner, he may deny the _ liability of the firm. If the court holds otherwise, the plaintiff may serve summons on : the firm and proceed with the suit. Samarth Agrawal Books 109Qo A: Code of Civil Procedure Q: What safeguards have been provided by the Code of Civil Procedag for the protection of the rights and interests of parties in g civ d mind? suit who are minor or persons of unsov Ac: Order 32 provides for special procedure to be adopted in case of sug instituted by of against minor and persons of unsound mind. The rules thereunde, eguards to protect the tights and interests of minors who ae able of safeguarding theit interests on thei provide various s considered immature in law and incap: own, These safeguards can be discussed as under : 1. Appointment of next friend or guardian : Rules 1 and 2 provide that where a suitis to be instituted by a minor, it shall be instituted in his name through his next friend otherwise plaint will be taken of the file. In cases where minor is defendant, Rule 3 and 4 provides that the court shall appoint a guardian ad ditem who shall be a major, of sound mind and whose interest is not adverse to that of the minor and he shall not be a plaintiff in such suit. The court may permit other person to act as such guardian if it is for minor's welfare. Rule § further provides that all the applications shall be made by such nest- friend or guardian on behalf of minor. Thus, the Code ensures that a caretaker is appointed for the minor to look after his interest while contesting a litigation in his behalf. If no such person is available, suit will be stayed until next appointment. 2. Setting aside of decree in case of prejudice : Rule 3A provides that 4 decree passed against a minor can be set aside by the court i @ the interest of next friend or guardian of the minor is adverse to that of minor, and @ prejudice has been caused to the interest of the minon 3. No receipt under decree or compromise : Rule 6 requires the next friend or guardian of the minor to obtain the leave of the court in order to obtain money other movable property on behalf of minor by way of compromise or decree it favour of minor. This rule safeguards the interest of minors against hostile, collusive ornegligent of guardians or next ftiends of minors [Dhirendra Kumar v. Sugandhial Bain, ATR 1989 SC 147]. i ee Samarth Agrawal BooksQ& A: Code of Civil Procedure 4, No compromise without court's leave : Rule 7 further prohibits next friend ot guardian of the minor to enter into an agreement or compromise on his behalf with reference tothe suit. Application for leave shall be accompanied by affidavit and certificate of pleader that such compromise is for minot's benefit. ‘The court can also examine whether such agreement is beneficial for minot ot not. If leave is not abained, such agreements/compromise becomes voidable agnnst all parties except minor. ‘Thus, duty is imposed on the court to ensure that guardians and next fresids act honestly and Dona fideh in the interest of minors. 5. Removal or retirement of next friend or guardian : Rules 9 and 11 provide for removal of next friend and guardian if he fails to do his duty or if his acts are adverce to the interests of minor or for other sufficient cause. Thus, a person is allowed to represent a minor only so long as he works for protection of his interests 6. Option of withdrawal or dismissal of suit upon attaining majority : Rules 12 t0 14 further empowers the minor upon attaining majority to select whether he wants to proceed with the suit or withdraw his name. If suit is fled in improper and unreasonable manner, then upon attaining majority, he may apply for dismissal of such suit. Allthese safeguards are available to a person to unsound mind as well [Order 32 Rale 15). Thus, the Code of Civil Procedure has given paramount importance to the _ interest of the infants and Persons of unsound mind who cannot look after their interest on their own. Q: What is meant by "guardian ad litem’ and which Order of Civil Procedure Code deals with it ee A. Order 32 lays down the procedure to be followed in cases by of against minors or lunatics. This provision has been enacted to protect the interest of minors tnd persons of unsound mind. Law presumes that minors and persons of unsound mind are not best judge of their own interest, therefote, legislature comes to their Protection, In this regard provisions for appointment of guardian and next friend are Made, : Samarth Agrawal Books AutQ & A: Code of Civil Procedure Rule 3 provides that in a suit against a minor, the court shall appoint pro person to be puardian for the suit. He is called guardian ad-litem, Such appointment can bbe made cither on the application of the minor or the plaintiff. Application must be supported by an affidavit and must state that proposed guardian has no interest in the controversy between the parties. Before making any order regarding appointment of ‘guardian ad-liter the court will issue notice to:- > Any guardian already appointed by competent authority; or > Father; or > Mother; or > — Other natural guardian; or > The person in whose care the minor is Qualification for appointment of guardian ad litem Rule 4 prescribes the following qualifications for appointment of next friend or guardian ad-liten- © He should be major; © He should be of sound mind; © He should not have an interest adverse to the minor; © He must have given a written consent to act as such, If the court cannot find any suitable person then the court may appoint any of its Officers to be such guardian. The court will always consider and give paramount importance to the welfare of the minor. Q: Describe the rights and options available, under the Code of Civil Procedure, to a minor plaintiff on his attaining majosity and the procedure thereof. et A. + Order 32 Rules 12-14 provides that on attaining the majority, a minor plaintiff may adopt any of the following courses- © Proceed with the suit @ Abandon the suit © Apply for dismissal of improper suit 12 Samarth Agrawal BooksQ&A: Code of Civil Procedure 4. Proceed with the suit: He may proceed with the suit by applying for an order discharging the next friend and for leave to proceed in this own name. Notice is required to be given to such next friend before order of discharge is made, 2. Abandon the suit: He may abandon the suit and apply for its dismissal on repayment of costs t0 the defendant or to his next friend if he has already paid such costs, 3. Apply for dismissal of improper suit: Rule 14 allows a minor on attaining majority to apply for dismissal of suit instituted in his name by his next friend on the ground that it was unreasonable and improper. In such case, notice will be served on all parties and if application is granted, the court may order the next friend to pay the costs of all parties in respect of suit, Rule 13 provides that where minor is a co-plaintiff, he may repudiate the suit and may apply to have his name struck off as co-plaintiff. If the court finds that he is not a necessary party to the suit, it may dismiss him from the suit or otherwise it may make him the defendant. —— $$ Q: Where the plaintiff if a minor, then on the retirement, removal or death of his next friend, will the proceedings be stayed, until the appointment of a next friend in his place? A.: Order 32 Rule 10 of the Code provides that on the retirement, removal or dead of the next friend of aminor the proceedings in a suit against minor shall be stayed until the appointment of a next friend in the plae of. If the pleader of the minor omits to appoint next friend within reasonable time, any interested person may apply to the court for the appointment of one and the court may make such appoint- ment and proceed further with the suit [Rule 10(2)}. —— Q: What is the meaning of family and what special procedures have been prescribed relating to suits concerning family in Civil Procedure Code? eee nn es A. Order 32A provided for the suits relating to matters concerning the family. Order 32A Rule 6 provides the meaning of family and states that each of the following Shall be treated as constituting a family, viz, Samarth Agrawal, Books 3Q& At Code of Colt Procedure (@) @ Aman and his wife living together (i) Any child of children, being, issues of theirs, or of such man of sus, wife i) Any child or children being maintained by such man and wife, (©) A man not having a wife or not living with his wife, any child of children being issue of his, and any child or children being maintained by him, (© Awoman not having a husband or not living with her husband, any child og children being issue of hers and any child or children being maintained by her. (@ Aman or woman andhis ot her brother, sister, ancestor or lineal descendants living with him or her, and (©) Any combination of one or more of the group specified in clause (b), (6) of @ of the rule. According to the Explanation appended to Rule 6 this definition does not cause any prejudice to the concept of ‘family’ in any personal or other law in force. Matters concerning the family Order 32A Rule 1(2) provides for certain matters concerning the family which are as under: @) A suit or proceeding for matrimonial relief, including a suit or proceeding for declaration as to validity of a marriage or as to matrimonial stams of any person. () A suit or proceeding for a declaration as to the legitimacy of any person. (© A suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family under a disability. (@). A suit or proceeding for maintenance. i (© A suit or proceeding as to the validity or effect of adoption. (9) A suit or proceeding relating to will, intestacy and succession. () A suit oF proceeding relating to any other matter concerning the family i0 respect of which the parties are subject to their personal law. > » 414 Samarth Agrawal Books gis sesQ & A: Code of Civil Procedure This list is not exhaustive but only illustrative and it will include other matters which concerns the family. cedure prescribed in relation to such suits Order 32A prescribes following measures in case of suits relating to family ‘matters: (@) Proceedings to be held in-camera Rule 2 provides that proceedings to which Order 32A applies may be held in camera if the court or either party so desires. (b) Duty of court: Rule 3 and 5 of the order lay down following duties of court: n @ Duty to inquire into facts [Rule 5]: It shall be the duty of court to inquire, as far it reasonably can, into the facts alleged by the plaintiff and the defendant. Gi) Duty to make efforts for settlement [Rule 3]: Rule 3 provides that if possible, the courein first instance shall endeavour to assist the parties in arriving at a settlement in respect of the subject matter of the suit and for this purpose, the court may adjourn the proceedings for certain E period to enable attempts to the make to effect such settlement. [Rule * 3). > ‘Assistance of welfare expert: Rule 4 allows the court to secure service of _ Such person (preferably a woman) whether related to parties or not including a person "professionally engaged in promoting welfare of family, for assisting the court in discharging his functions imposed by Rule 3 of the Order. Q by such person? a A. : Order 33 provides for filing of suits by indigent persons. Explanation I _®ppended to Order 33 Rule 1 provides that a person is an ‘indigent person’ if- @ _Heis not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or Who is an indigent person? What is the mode of instituting suits 4a @ Where no such fees is prescribed, when he is not entitled to property worth Rs. 1,000. Samarth Agrawal Books 115Q.& A: Code of Civil Procedure In both the cases, the property exempted from attachment in execution of Accree and subject matter of the suit should be excluded. [Explanation 1 t9 Ruy Explanation II further provides that if any property is acquired by such person after presentation of application co sue as indigent person, such property will als be taken into consideration for deciding such application. Procedure for instituting indigent suit Order 33 lays down following procedure to be followed where suit is to be instituted by indigent person- (@) Contents of application: Rule 2 requires the indigent to file an application to sue as indigent person containing following particulars: @ _ Particulars required in regard to plaint in suits. @_Aschedule for any movable or immovable property belonging to the applicant with estimated value thereof. @) Signature and verification as required under Order 6 Rule 14 and 15. ‘Such application shall be presented by the applicant to the court in person unless exempted by the Code or if there are two or mote plaintiffs any of them can present the application. [Rule 3]. (b) Inquiry [Rule 1-A] and examination [Rule 4]: The chief ministerial offer of the court may conduct an inquiry as to the means of the applicant [Rule 1A] and the court may examine the applicant regarding the merits of the claim and prope"y of applicant [Rule 4]. (©) Notice [Rule 6] and Hearing [Rule 7]: The court shall issue notice to O* ‘opposite party and Government pleader. The date shall be fixed for receiving evideat as the applicant may adduce in proof of his indigency. The court shall then exasitt the witnesses, if any, produced by either party, hear their arguments and either alo or reject the application (Rule 7]. (d) Rejection of application [Rule 5]: Rule 5 lays down the following grou! when the court shall reject an application to sue as indigent person : (@) Where itis not framed and presented inthe manner prescribed bY 2 and 3, (b) Where the applicant is not an indigent person. 116 Samarth Agrawal Books@ A @ © © ® Q & A: Code of Civil Procedure Where he has, within two months next before the presentation of application, disposed of any property fraudulently ot in otder to be able to apply for permission to sue as indigent person, Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, he would be entitled to sue as indigent person. Where his allegations do not show a cause of action. Where he has entered into any agreement with reference to the subject matter of the proposed suit under which any other person has obtained an interest in such subject-matter, Where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force. Where any other person has entered into agreement with him to finance the litigation, (c) Procedure when applicationis rejected: Where the court rejects application to sue as indigent, on any of the grounds mentioned in Rule 5, it will grant time to the applicant to pay court fees [Rule 15-A]. The order of rejecting of such application will be a bar on subsequent application to sue as pauper but does not debar him from Suing in an ordinary manner on payment of court fees and costs incurred by opposite Party in opposing the application [Rule 15). An order rejecting an application to sue as indigent person is appealable [Order 43 Rule 1(na)). ( Procedure where permission is granted: Rule 8 provides that where | *plication to sue as indigentis granted, it shall be deemed to bea plaintin the suit and shall proceed in the ordinary manner and the plaintiff will not have to pay court fees. The court may provide him a pleader if he is not represented by the pleader [Rule | 9A] and other free legal aid and services as may be required by him [Rule 18}. (2) Revocation of permission [Rule 9]: The court may, on application by the | Cases: defendant o Government pleader, revoke permission granted to plaintiff in following Where he is guilty of vexatious or improper conduct in course of suits, of @ Where his means are such that he ought not to continue to sue as an indigent Person. Samarth Agrawal Books uy