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Civil procedure Problems, Exercises of Law

Damodaram Sanjivayya National Law UniversityLaw

Civil Procedure problems and answers

Typology: Exercises

2018/2019

Uploaded on 02/18/2019

manju23459
manju23459 🇮🇳

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THE CODE OF CIVIL PROCEDURE, 1908 AND THE LIMITATION
ACT, 1963
Problem No. 1
A residing in Delhi beats B in Calcutta. B wants to file a suit against A. Advise.
Answer
As per Sec. 19 of CPC, B can file a suit against A either in Calcutta or in
Delhi. Sec. 19 read as follows- Where a suit is for compensation for wrong done
to the person or to movable property, if the wrong was done within the local limits
of the jurisdiction of one Court (Calcutta) and the defendant resides (Delhi), or
carries on business, or personally works for gain, within the local limits of the
jurisdiction of another court, the suit may be instituted at the option of the plaintiff
in either of the said courts.
The Illustration under Sec. 19 of CPC is as follows - A, residing in Delhi, beats B
in Calcutta, B may sue A either in Calcutta or in Delhi.
Suit against A cannot be filed, because as per section 9 C.P.C – the Courts
shall have jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.
A beating B is not a ‘suit of civil nature’ and hence be cannot file a suit
against A.
Problem No. 2
A agreed to sell his garden to B. While the contract is still in force, A sells his
garden to C. C has notice of the fact that there is a contract for sale between A
and B. What are the remedies available to B?
Answer
B can file a suit for specific performance against A u/s 10 (a) & (b) and Sec. 10
Explanation (i) of the Specific Relief Act 1963 which reads - the specific
performance of any contract may, in the discretion of the court, be enforced-
a. when there exists no standard for ascertaining actual damage caused by the
non-performance of the act agreed to be done; or
b. when the act agreed to be done is such that compensation in money for its non-
performance would not afford adequate relief.
Sec. 10 Explanation: The court shall presume.
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THE CODE OF CIVIL PROCEDURE, 1908 AND THE LIMITATION

ACT, 1963

Problem No. 1 A residing in Delhi beats B in Calcutta. B wants to file a suit against A. Advise. Answer As per Sec. 19 of CPC, B can file a suit against A either in Calcutta or in Delhi. Sec. 19 read as follows- Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court (Calcutta) and the defendant resides (Delhi), or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the said courts. The Illustration under Sec. 19 of CPC is as follows - A, residing in Delhi, beats B in Calcutta, B may sue A either in Calcutta or in Delhi. Suit against A cannot be filed, because as per section 9 C.P.C – the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. A beating B is not a ‘suit of civil nature’ and hence be cannot file a suit against A. Problem No. 2 A agreed to sell his garden to B. While the contract is still in force, A sells his garden to C. C has notice of the fact that there is a contract for sale between A and B. What are the remedies available to B? Answer B can file a suit for specific performance against A u/s 10 (a) & (b) and Sec. 10 Explanation (i) of the Specific Relief Act 1963 which reads - the specific performance of any contract may, in the discretion of the court, be enforced- a. when there exists no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done; or b. when the act agreed to be done is such that compensation in money for its non- performance would not afford adequate relief. Sec. 10 Explanation: The court shall presume.

i. that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and B can also file a suit for permanent injuction u/s 34 of the Specific Relief Act, 1963, against C on the ground that B had a valid and subsisting agreement for sale of immovable property (garden) belong into A. Problem No. 3 ‘A’ files a suit against ‘B’ for declaration that he is entitled to certain lands as heir of ‘C’. The suits is dismissed. ‘A’ files another suit claiming the same property on the ground of adverse possession. Is the suit barred by res judicata. Answer No. A cannot file another suit claiming the same property on the ground of adverse possession, because the second suit amounts to res judicata. As per Sec 11 Explanation IV Code of Civil Procedure 1908 - No court shall try any suit or issue in which the matter directly and substantially in issue in a former suit’ between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. The explanation IV of Sec 11 reads - Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Problem No. 4 “A” sues “B” on a promissory note for Rs.20,000. “B” already holds a judgment against “A” for Rs.28,000. A plea of set-off is raised by ‘B”. Can he succeed in him plea. Give reasons. Answer Order VIII, Rule 6 speaks about the particulars of set-off to be given in written statement. Sec. 6 (1) reads - In a suit for the recovery of money, if the defendant claims set- off against the plaintiff’s demand, ie., any ascertained sum of money legally recoverable by him from the plaintiff not exceeding the pecuniary limits of the jurisdiction of the Court, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, presents a written statement containing the particulars of the debt sought to be set-off.

Answer As per Sec. 152 of C.P.C, the clerical or arithmetical mistakes in judgments, decrees or orders or errors arising from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. In the above problem, as per Sec. 152 of C.P.C, the Court can amend the decree, because there is omission in not awarding interest for the decreed amount. Problem No. 7 Summons was issued by the court to David to appear before the court for the purpose of giving evidence in a case. A request was made to the court on behalf of David stating that he is occupying high position in the society. So a commissioner may be appointed to examine him. Will it be entertained by the court? Give reasons. Answer No. It will not be entertained by the Court, as under Order XXVI Rule 4(1). As per Order XXVI Rule 4(1), Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of the following persons only- a) any person resident beyond the local limits of its jurisdiction; b) any person who is about to leave such limits before the date on which he is required to be examined in court; and c) any person in the service of the Government who cannot, in the opinion of the court, attend without detriment to the public service: Provided that where, under rule 19 of Order XVI, a person cannot be ordered to attend a court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice: Just for the reason that David states that he is occupying high position in the society, Court will not issue Commission for his examination.

Problem No. 8 Raju borrowed a sum of Rs.25,000 on a promissory note from Raghavan. The promissory note was executed on 25.9.2000. Reghavan died on 25.10. leaving behind his son “Ravi’ aged 15 years. Now Ravi wants to file a case against Raju. Can Ravi recover the amount from Raju? Give reasons. Answer Ravi can file a case against Raju to recover the amount of Rs. 25,000/-. However, since he is only 15 years of age, he can file the suit through next friend only. As per ORDER XXXII, Rule 1 of C.P.C, every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. The minor Ravi, to file a suit, must become a major. He becomes a major only at 18 years of age. i.e., only as on 25.10.2003, by which time, the limitation period of 3 years for promissory note will be over (25.09.2003) Problem No. 9 ‘A’ filed a suit against ‘B’ on a promissory note as an indigent person. The suit was dismissed by the court. What is the remedy open to ‘A’ and the Government against the dismissal? Answer As per Order XXXIII Code of Civil Procedure 1908, there is no remedy to ‘A’. As per Order XXXIII Rule 12, the State Government shall have the right at any time to apply to the Court to make an order for the payment of Court fees under rule 10, rule 11 or rule 11A of Order XXXIII. Problem No. 10 Babu entrusted gold jewels to Balu as his agent. Ravi, alleging that the gold jewels were wrongfully obtained from him by Babu, claims them from Balu. Whether Balu can institute interpleader suit against Babu and Ravi? Answer As per Sec. 88 of C.P.C, when two or more persons claim adversely to one another- the same debt, a sum of money or other movable or immovable property from another person and if the other person claims no interest therein (other than