Civil Law I

Punjab Civil Service Examination
Judicial Branch
Civil Law Paper – 1 1999
Time : Three Hours
Maximum Marks : 200

Attempt TWO questions from Part 'A' and ONE question each from Parts 'B', 'C' 'D' and 'E'.

Part – A

Q.1  (a)  The respondent filed a suit for injunction, restraining the appellant from interfering with the possession of respondent over some land.  The respondent claimed to be the owner of the said land and asserted that he was in possession thereof.  The claim of the respondent was that he had purchased the suit land, through a sale deed, in the year 1970.  Thereafter, he filed a suit on 17.4.1971 for permanent injunction against the appellant.  the suit was ultimately withdrawn on 7.11.1977, with permission to file a fresh suit.  Ultimately, the present suit was filed on 23.8.1979.  the claim of the respondent was resisted by the Municipal Committee saying that the respondent was neither the owner of the land in question nor was he in possession thereof.  It was asserted that the Municipal Committee had already constructed a park in the land and there was no question of the respondent acquiring any right, title or interest in the same.  The subordinate Judge dismissed the suit on finding that the respondent had filed to prove that he was the owner and was in possession of the land.  The Court of Appeal set aside the finding of the Trial Court and decreed the suit of the respondent taking the view that the title of the predecessor-in-interest of the respondent had been established.  Court of Appeal proceeded only to consider the revenue records from the year 1975-79 like jamabandi for the year 1974-75 and Khasra girdwari for the years 1975-79.  It was also held that the appellant was in possession of the suit property.  The second appeal filed on behalf of the Municipal committee was dismissed.  The Review Petition filed to recal the order of dismissal of the second appeal was also dismissed in limine.  Was the dismissal of the second appeal filed on behalf of the appellant, municipal Committee, justified?  Decide with reference to provisions of Specific Relief Act, and case law, if any.
(b)  The plaintiff filed a suit for declaration of his title to the suit property and for recovery of possession on the ground that the property was sold to him by the owner defendant No. 2, by executing a sale deed, Ex, A-1, dated 5.6.1967, which was registered on 7.6.1967, for consideration with the direction to redeem the usufructuary mortgage of the property earlier effected in 1966, in favour of DW-3, that defendant No. 2 had also executed a sale deed in respect of the same property, in favour of defendant No. 1, by dating it as 5.5.1967 (Ex. B-2), which was registered on 8.6.1967, and the sale deed executed in his favour was anterior to Ex. B-2, and so defendant No. 1 had no tile to the property, The courts below found on the basis of oral and documentary evidence that Ex. B-2, obtained by defendant No. 1 was genuine and valid and defendant No. 1 discharged the mortgage, Ex. B-1, on 10.5.1967, took possession of the suit property and thereafter cultivated the same.  The Courts below were of the opinion that Ex. A-1 could not be accepted in view of the contradictions in the evidence of PW-1 and PW-2 regarding the payment of consideration and none of the attestors to Ex. P-1 were examined.  Laying stress on the suit notice sent by the plaintiff to the plaintiff No. 1 and other circumstances, the court also found that there was collusion between the plaintiff and the defendant No. 2 and so Ex. A-1 purported to have been executed by the defendant No. 2 in favour of the plaintiff, was not valid in law.  It was also held that Ex. B-2 having been executed on 5.5.1967 i.e. in earlier point of time to the sale deed Ex. A-1, executed on 5.6.1967, on the date of the sale deed, Ex, A-1, defendant No. 2 had no subsisting title to the suit property and the plaintiff did not acquire valid title to the suit property.  Ex.A-1 was held to be invalid in law.  In second appeal, a Single Judge of the High Court, on re-appreciating the evidence, took the view that it was not probable that the document Ex. B-2 would have been executed on 5.6.1967, in view of the delay in the registration of the document.  Holding that the judgments of the courts below were perverse, the Single Judge reversed the concurrent judgments of the courts below, allowed the appeals filed by the plaintiff, and ordered that there would be a decree of the declaration of the plaintiff's title to the suit property and for recovery of possession.  The plaintiff was directed to deposit a sum of Rs. 600/- for payment to defendant No. 1.  Was the High Court justified in reversing the concurrent judgments of the courts below?  Frame is-sues and write your judgment.
Q.2  (a)  The respondent was working as a Clerk with C, who had obtained a decree against the appellants.  In execution of the decree, the respondent purchased at Court sale, the property belonging to the appellants, on behalf of C.  Later, by a registered deed, the respondent relinguished all his rights in the property in favour of C. Meanwhile, the appellants ' Judgment Debtors, paid the total decretal amount to C.  All the same, the respondent, without disclosing his execution of the release deed in favour of C, filed a suit for partition of the property and obtained a preliminary decree.  Thereafter,  he filed an application for a final decree.  It was only at the hearing of this application that the appellants came to know about the release deed and want of locus standi of the respondent.  They, therefore, challenged the application on the ground that non-disclosure of vital documents, by the respondent, vitiated the proceedings, and as such, preliminary decree was obtained by playing fraud on the court and was a nullity.  The trial Court accepted the contention and dismissed the application for final decree.  The High Court, however, inter-alia taking the view that there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence, set aside the order of the trial Court.  Was the High Court justified in setting aside the order of the Trial Court?  Decide with reference to the provisions of C.P.C. and case-law if any?
(b)  The respondent entered into a contract on 27.2.1975 with the petitioner for sale of his land as he was in dire need of money to celebrate lus daughter's marriage on 16.5.1975.  The agreement was that the draft sale deed should be finalized within seven days and sale deed registered.  Time was, therefore, of the essence of the contract.  The defendant insisted upon payment of consideration in cash.  The respondent sent the approved draft sale deed immediately, but the petitioner did not give the final draft, as contemplated by the agreement, since he had to obtain the Income Tax Clearance Certificate, which he did not obtain.  Two letters written by the respondent indicated that the respondent was always willing to have the sale deed executed, but the petitioner delayed the execution of the sale deed, on one pretext or the other.  The petitioner filed a suit for specific performance of contract.  The High Court held that the petitioner was not ready and willing to perform his part of the contract under Clause (c) of Section 16 of the Specific Relief Act.  Was the High Court justified in negating the relief of specific performance of the Contract?  Give reasons in support of your answer?
Q.3  (a)  Appellant filed a suit for declaration of her right and title in respect of a house property and for permanent injunction, restraining respondent-defendant No. 1, from interfering with her possession and enjoyment thereof.  Property initially, was allotted on hire-purchase basis by Housing Society to V, defendant, a member of one of the three families, which comprised the joint family.  But pursuant to a partition between the three families, suit property fell to the share of the family represented by S and his younger brother, the respondent.  Thereafter, appeallant paid rent to S, who in turn, paid the hire-purchase installments to the Housing Society.  On inquiry by the appellant's husband whether S was willing to transfer the property in his name, S replied in the negative.  The respondent already obtained eviction decree against appellant, which because final and binding and only question of title remained open.  Appellant claimed that she discharged the amount due to the Housing Society, on behalf of V, pursuant to agreement with him and thereby she became owner of the property.  It was held that the plea was not acceptable.  Partition deed, by virtue of which, the property fell to the share of S and respondent, was genuine and not sham or vitiated by any fraud or misrepresentation, or based on any ulterior motive or extraneous consideration and the same having not been challenged by any party to the decree was not open to challenge by a third party i.e. the appellant.  question whether V was a benamidar of the property was only a collusive one between appellant and V, to defraud S and respondent.  Conduct of appellant and payment of amounts due to S and husband's inquiry from S about his willingness to transfer the property to him amounted to attornment of S as owner.  Frame issues and give judgment on the suit of the appellant.
Is the appellant stopped under Section 116 of the Evidence Act from denying the title of S and his brother, the respondent?
(b)   The plaintiff-appellant's suit for specific performance of the agreement for sale, was decreed by the trial Court and the first appellate Court.  The total amount of consideration was Rs. 12, 000/- and the plaintiff- appellant had paid Rs. 3, 000/- as earnest money.  In second appeal the High Court reversed the decree and dismissed the suit as from the fact that the plaintiff-appellate had taken some time to remove the deficit in the Court Fee.  The High Court had inferred that plaintiff-appellant had no capacity to pay the consideration and was not willing to perform his part of the contract.  Was the High Court justified in reversing the decree and dismissing the suit?  Decide with reference to the provisions of Specific Relief Act and case law, if any?
PART-B

Q.4  (a)  The appellant-contractor entered into a continuing contract with the Government, for three years ending on 31.12.1970, for purchase of tendu leaves.  As per terms of the contract, the contractor had to opt for renewal of the contract, within 15 days prior to December 31st every year, and the contract was to be renewed by issue of order by the Government and acceptance by the department by January 31st next year.  Accordingly, date of receipt of the acceptance would be the date of renewal of the contract.  The appellant gave his offer for renewal on 7.12.1968 and Government accepted the same on 31.1.1969.  But acceptance was communicated on 7.2.1969 and appellant withdrew his offer only thereafter on 9.2.1969.  would the contract continue to remain in force?  Decide with reference to section(s) of the Indian Contract Act, and case law, if any.
(b)  In a case while the defendant intended to sell the land in terms of Kanals, the plaintiff intended to purchase in Bighas.  Bighas and Kanals are different units of measurement.  In northern part of the country, the land is measured in some States, either in terms of bighas or in terms of Kanals.  Both convey different impression regarding area of the land.  The area of the land was as much essential to the agreement as the price, which incidentally, was to be calculated on the basis of the area.  Is the mistake with which the parties were suffering related to a matter essential to the agreement?  Answer with reference to the sections of Indian Contract Act and case law, if any.
(c)  An agent for a term refused to hand over the account books, bonds etc. of the business at the end of the term to a new agent in his place, unless the principal gave him a release from all liabilities in respect of his agency:  such a release had to be and was given, and the new agent got account books, bonds etc.  from him.  Is the release deed voidable at the instance of the principal?  Decide with reference to Section(s) of the Indian Contract Act and case law, if any.
Q.5.  (a)  In a case, the representative of one D, sued to set aside a deed executed by him, on the ground that the defendant had mattaged to get the deed executed by D, by means of fraud and undue influence; it was contended on behalf of the defendant that the suit being one to set aside a document on the ground of fraud or undue influence, the right to sue did not devolve on his personal representatives inasmuch as the relief given by Section 19 and 19-A of the Indian Contract Act must be confined to the actual party who had been defrauded or on whom the undue influence had been exercised.  Are the representatives entitled to sue?  Decide with reference to section(s) of the Indian Contract Act and case law, if any.
(b)  F was required by a Magistrate, under the Criminal procedure Code, to furnish a surety who should be responsible for his good behaviour for one year.  S agreed to become a surety on condition that F would deposit with him, the amount of the security which F made and S became a surety.  This period for which S was responsible for F's good conduct having expired without F committing any act to forfeit the security.  On a demand by F, S refused to return the deposit.  F filed a suit for recovery of the amount of surety.  What will be the fate of the suit?  Decide with reference to section(s) of the Indian Contract Act and case law, if any.
(c)  G, an advocate, entered into an agreement with his client, which was embodied in his client's letter to him, as follows :- "I hereby engage you with regard to my claim agains the Baroda Theatres Ltd. for a sum of Rs. 94,000/-.  Out of the recoveries, you may take 50% of the amount recovered."  Is the agreement enforceable?  Would it have made any difference had the agreement been made between third parites and not the advocate?  Decide with reference to section(s) of the Indian Contract Act and case law, if any.

PART-C

Q.6  (a)  A gupti was recovered pursuant to the statement made by the accused (appellant No. 2) from a dilapidated building concealed below a heap of earth, which on examination was found to be stained with human blood of Group 'B'.  On behalf of the appellant, if was urged that because the house was in dilapidated condition and could be approached by anyone, it could be said that the gupti was gound from an open place, accessible to all.  Is the plea of the appellant admissible under the law?  Decide with reference to section(s) of the Indian Evidence Act and case law, if any.
(b)  The deceased was the young wife of the accused.  The prosecution case was that the accused was not well disposed towards his wife as she was always speaking against his drinking habits.  It was not disputed by the accused that he killed his wife by inflicting blows on her head.  The accused took the plea of unsoundness of mind but he did not succeed in making out that he had such a mental state when he committed the act and further, that he did not know the nature of the act committed by him, by reason of such mental impairment.  However, the accused adopted another alternative defence, which was suggested during cross-examination of Prosecution Witnesses i.e. his wife and R, were together in bed in the early hours of the date of occurrence.  The defence counsel put a definite suggestion to R, during cross-examination that the incident was preceded by a liaison between the wife of the accused and R.  the evidence of the Prosecution Witnesses positively suggested that the accused had seen something lascivious between his wife and R, just when he entered the house from the field.  The accused was convicted by the trial Court u/s 302 IPC, but acquitted by the High Court.  Was the High Court justified in acquitting the accused?  Decide with reference to section(s) of the Indian Evidence Act, and case law, if any.
(c).  Notification dt. 22.10.1971 was issued under Section 3 of East Punjab Urban Rent Restriction Act, 1949, exe3mpting "every building constructed during 1968, 1969, 1970 from the provisions of the said Act, for a period of 5 years from the date of completion".  A house was completed anew in December, 1968.  The eviction suit had been filed in 1976.  Will the exemption from the Rent Act, be available in this case?  Decide with reference to the provisions of the East Punjab Urban Rent Restriction Act, 1949 and case law, if any.
Q.7  (a)  In a case of gunshot firing, by entering into the open terrace of the house of the victim at night, causing injuries to the victim and death of his wife, the close neighbours of the victim rushed to the spot within a few minutes and saw the injured person in bleeding condition.  The neighbours deposed that the injured victim had mentioned the names of the appellants as assailants.  Does the statement of the injured person, made to the neighbours soon after the incident, become substantive evidence as res gestae?  Will it have utility in the trial as it would fall within the ambit of Section 157 of the Indian Evidence Act?  Answer with reference to provisions of the Indian Evidence Act and case law, if any.
(b)  A, a witness in case, correctly identified the accused at Test Identification Parade (TIP) in course of the investigation of the case.  But during the court trial, he did not identify him.  The Trial Judge had, however, observed that the witness was frightened to accord recognition to the accused at trial.  The Magistrate who conducted the TIP depased that the witness had correctly identified the accused in the TIP.  Is the evidence of the witness relevant and admissible in the trial?  Can a conviction be based on it?  Answer with reference to the provisions of the Indian Evidence Act and case law, if any.
(c)  Chandigarh Administration leased a plot of land to A, who constructed a building on it for use as a showroom.  A inducted B as tenant for the purpose of running a showroom-cum-office.  B made some unauthorized constructions and put up some machines without written permission of A.  Can B be evicted?  Answer with reference to provisions of East Punjab Urban Rent Restriction Act, 1949, and case law, if any?

PART-D

Q.8  (a)  A sharebroker having sold in Bombay, shares in a company, handed to the buyer certificates for the shares described together with transfers in blank, signed by the registered holders.  The buyer gave a cheque for the price but dishonoured it and failed to pay.  The buyer in the meantime, had sold the shares to the respondents and handed over to them, the certificates and transfers.  To seller sued the buyer and the respondents:  he claimed from the respondents, the return of the certificates and transfers and damages.  Decide with reference to section(s) of the Sale of Goods Act, and case law, if any.
(b)  On the bargain for the purchase of a hourse, the horse was delivered to the buyer, upon trial for eight days, the agreed price being Rs. 5,000/-.  If found suitable for the intending buyer's purposes, the bargain was then to be absolute.  The horse died without fault in either party, within eight days.  Decide whether the intended buyer is liable to the price with reference to section(s) of the Sale of Goods Act, and case law, if any?
(c)  Three partners, C, M & N, were indebted to the plaintiff.  C retired, M and N continued in partnership together, and agreed to discharge the debts of the old firm.  M afterwards retired, and N took in a new partner.  The plaintiff's account was transferred from the books of the old firm to the books of the new partnership and interest was paid, and accounts were rendered to him, as before.  The plaintiff was informed of the dissolution and had stated to one of the retired partners that he was aware he had no further claim upon him.  Decide whether the three original partners remain liable with reference to provisions of the Indian partnership Act and case law, if any.
Q.9  (a)  Defendants who were Warehousemen, held 618 quarters of maize belonging to A, who sold 200 quarters thereof, to B and gave him a delivery order which B lodged with the defendants.  The defendants did not object to the order, nor did they make any acknowledgement to B of its title.  Shortly afterwards, before any appropriation of the 200 quarters had taken place, A, as unpaid vendor, put a stop on delivery.  Can A put a stop on delivery in the case?  Decide with reference to section 9s) of the Sale of Goods Act, and case law, if any.
(b)  The plaintiff bought a motor car from defendant and used it for several months; after some months, it appeared that the defendant had no title to it, and plaintiff was compelled to surrender it to the true owner.  On plaintiff suing the defendant to recover back the purchase money, the defendant argued that the plaintiff had the use of the car for some time, hence he was not entitled to get back his money.  Decide whether the defendant is liable to the price with reference to section (s) of the Sale of Goods Act, and case law, if any.
(c)  A, who in his lifetime, had started business of Chemists in the name of B & Bros. died, leaving B, C & D, his three sons.  B, the eldest continued the business, and C & D, after attaining majority, began actively participating in its management.  Sometime thereafter, the three brothers came to partition among themselves, by a deed of partition.  B continued the business in the old name of B & Bros. in which C worked on a salary.  Question arose whether C would be liable for any subsequent transaction to any person dealing with the firm, without notice of the separation between B, C, & D, if such third person had knowledge, that the business of B & Bros. was the business of B, C & D.  Decide with reference to section(s) of the Indian Partnership Act, and case law, if any.
Q.10  (a)  A suit was filed by the appellant for recovery of certain amount due to it on the basis of invoice price on supply of goods made by it to the respondent corporation.  The respondent also filed a suit for recovery of amount paid in excess of DGS & D contract rates.  Both the suits were connected and tried together as the nature of dispute in both the suits were the same.  Issues framed were also common.  The trial Court found that the respondent was liable to pay only at DGS & D contract rates and was entitled to refund to the extent of excess payment made by it and that the appellant was entitled to recovery to the extent its claim was found to be substantiated, even on the basis of DGS & D contract rates.  Accordingly, both the suits were partly decreed.  The appellant did not file any appeal against the dismissal of the suit for the part of its claim, but appeal was filed against the decree granted in favour of the Corporation, in the suit filed by it.  At the time of hearing, the High Court dismissed the appeal of the appellant, as barred by resjudicata, as the finding recorded in the connected suit, that the appellant was entitled to charge and collect only the DGS & D contract rates and not on the invoice price, had become final.  Was the High court justified in dismissing the appeal of the appellant?  Decide with reference to C.P.C. and case-law if any.
(b)  In a suit for permanent injunction, restraining the defendant from interfering with the suit land, the first appellate court held that sale deed of suit land was invalid, without there being any issue to that effect and without vbendee, in whose favour the sale deed was executed, being party to the suit.  The first appellate court also gave a finding that the plaintiff was in possession of the suit land, when there was no such evidence on record.  Whole approach of Court was found to be based on suspicion and bias against the defendant.  Could the defendant go in a second appeal to the High Court?  If so, under what section of the Punjab Courts Act?  Quote case law, if any.
(c)  One R was a tenant on a year-to-year basis under a company in respect of part of an estate.  By an oral agreement, the company granted to one M, the right to catch and kill rabbits on the said estate for one year on receipt of Rs. 7,000/-.  R kicked out the snares laid by M and prevented M from exercising hi right of rabbiting.  M prayed to the Court for an injunction and damages.  Decide with reference to provisions of Transfer of Property Act, 1882 and case law, if any.
Q.11  (a)  The appellant-plaintiffs laid a suit for perpetual injunction to restrain respondents from interfering with their possession of the property.  The respondent filed WS pleading that they had purchased another land, situated in a different area, and were in possession and enjoyment of the same.  They sought counter-claim of permanent injunction to restrain the appellants from interfering with their possession and enjoyment of the said land.  The appellants filed their replication, i.e. additional Written Statement, contemplated under Order 8 Rule 6-E, C.P.C. disputing the averments made by the respondents in their counter-claim.  They also pleaded that the counter-claim is not maintainable.  An application under Order 8 Rule 6-C and Section 151 CPC was filed, praying to exclude the counterclaim from the Written Statement.  The application was dismissed.  The High Court also dismissed the Revision Petition, directing the trial Court to decide, as an issue, whether property in dispute, was the same, which was the subject-,atter of the counter-claim, and to dispose of the suit after recording findings.  On behalf of the appellant, if was contended that in the suit for injunction, counter-claim was not maintainable and that the direction issued by the High Court, to identify the land to which the counter-claim related and was referable to the property in dispute, was also not consistent.  Frame issues and write Judgment, quoting provisions of CPC, and case-law, wherever necessary.
(b)  Will the delegation of certain limited appellate powers under Section 39 of the Punjab Courts Act to Senior Sub-Judge and powers given by the delegation to appoint menials or to punish under Rule (ix) of Rules framed under Section 35(3) of Punjab Courts Act, equate him to that of District Judge or Addl.  District Judge?
(c)  A house was bequeathed by Will to testator's wife for life (without any maintenance amount) and after her death, to his son.  After testator's death, validity of the Will conferring right to the widow, was disputed by the son on the basis of another Will, whereunder house was given to the son alone.  Later a settlement was arrived at, between the widow and her son, whereunder son's title to the house was acknowledged and accepted by the widow in lieu of her right of residence in the first floor of the house and a monthly cash maintenance for life.  Will the settlement tantamount to a transfer under the Transfer of property Act, 1882?  Answer with reference to provisions of Transfer of Property Act, 1882 and case law if any.