Civil Law I

Punjab Civil Service Examination 2000
Judicial Branch
Civil Law Paper- I
Time : Three Hours                                                                                                                                                                                                                                                  Maximum Marks : 200

Attempt Two Questions form Part 'A' and One Question each from Parts "B, C, D & E"

Part-A

Q. 1(a)  B entered into an agreement in 1964 for a period of two years, acquiring rights over the trees standing on certain land.  Initially, the Forest authorities refused him permission to cut and remove the trees because B had not shown the necessary material proving his acquisition of rights.  Later, permission was granted for approximately two months (which expired on 13.6.1968) and B did cut and remove some trees.  He again applied for permission more than eight years later.  Permission was refused on the ground that the land owners had given the contract to someone else.  B filed a Civil suit which was decreed and the authorities were directed to grant the necessary permission and B was declared the owner of the trees.  The State filed an appeal before the High court which was dismissed.
Was the High court justified in dismissing the Appeal?  Answer with reference to provisions of Civil Procedure Code and case law, if any-
(b)   B, the predecessor-in-interest of appellant 1, an owner of three acres of agricultural land, entered into an agreement for sale of the land with T, the predecessor-in-interest of the respondents.  The Agreement dated 24.4.1969 contained a default clause expressly stating that:  "in case the sale deed is not made to you or if you refuse to accept, in additional of earnest money, an amount of Rs. 500 shall be given or taken and no sale deed will be executed".  As it happened, no sale deed was executed and T filed a suit for specific performance on 18.7.1974.  While the suit was pending, B died and the disputed land was sold by his heirs to appellant No. 2 by sale deed executed in September, 1974 and March, 1975.
In his plaint, T specifically mentioned the default clause and stated that the earnest money totaling Rs. 1,000/- was to be returned by B alongwith an additional amount of Rs. 500/- in case the sale deed was not executed.  However, the prayer was expressed in the alternative and T sought a decree for specific performance or a decree for the return of Rs. 1,000/- plus a sum of Rs. 500/-.
The trial Court directed appellants-defendants to pay back Rs. 1,000/- with interest at 6% alongwith Rs. 500 as damages to the respondent plaintiff.  the first appellate Court, however, decreed the suit for specific performance on condition that T deposits the balance amount of sale consideration (Rs. 1,000/).  The appellants' second appeal was dismissed by the High Court.  Was the High Court justified in dismissing the Appeal?  Answer with reference to Sections of the Specific Relief Act, 1963 and case law, if any.
Q.2(a)  The plaintiff-respondent No. 1 was a registered money-lender who used to advance loans via his Current A/c at Central Bank of India.  Respondent No. 2, natural father of the plaintiff-respondent No. 1 was authorized to operate this account and used to advance money on behalf of his son.  When the plaintiff's money lending licence expired, he did not get it renewed.  Meanwhile the authority of respondent No. 2 to operate the bank account continued.  On 29.4.1964, respondent No. 2 on the request of the appellant issued a cheque for Rs. 7,000/- on the Current A/c of the plaintiff.  the appellant-defendant No. 1 encashed the cheque and then despite repeated demands, did not pay back the sum.  Plaintiff then filed the suit against both the borrower-defendant No. 1 and the authority holder, respondent No. 2 (defendant No. 2) who had issued the cheque.  The trial Court dismissed the suit against the borrower-defendant No. 1.  But decreed it against defendant No.2 primarily on the grounds that (i) defendant No. 1 had not directly approached plaintiff for the money, and (ii) defendant No. 2 could not be treated as the agent of the plaintiff.  In Appeal, the High Court modified the decree and decreed the suit against both the defendants.  Before the Supreme Court, the appellant (defendant) contended that the plaintiff-respondent No. 1 had no right to appeal once the trial Court had decreed the suit against one of the defendants.  Frame issues and write your judgment.
(b)  The Appellants were the legal representatives of a subsequent purchaser.  They were defendants to a suit by one B for specific performance of an earlier agreement to sell the property to her.  She had not pleaded in her plaint that she was ready and willing to perform her part of the Agreement but that plea was later introduced by way of an amendment.  The question now was in regard to whether she or her Legal representatives were, in fact, at all material times ready and willing to perform their part of that agreement.  The first appeallate Court declined to permit the appellants to plead and contend that B and her legal representatives were never prepared to perform their part of the agreement and for this purpose, it relied upon the judgment of Hon'ble Supreme Court in the case of Jugraj Singh, (1995)2 SCC 31.  The High Court in second appeal affirmed that view.  Was the High Court justified in confirming the view of the first Appellate Court?
Answer which reference to relevant Section/(s) of the Specific Relief Act, 1963 and case Law, if any.
Q.3  (a)  The plaintiff respondent had filed a suit for ejectment and recovery of arrears of rent in connection with a house originally owned by P.  The case of the plaintiff was that P sold the house to him by sale deed Ex. P-10, dated 8.4.1958 for a consideration of Rs. 1500/-.  P also allegedly executed a rent note in favour of the plaintiff and occupied the house as tenant thereafter.  On 5.2.1964 P died and only then the plaintiff filed his Suit against relatives of P in possession of the disputed property.  The defendants contended that P had been defrauded by the plaintiff; that there was never a sale deed; that P had only borrowed Rs. 1,500 from the plaintiff, a money lender and lawyer, for the renovation of her house; that as security for the loan she had executed a mortgage deed in favour of the plaintiff; that the house was actually worth Rs. 10,000.  They contended further that the plaintiff had taken advantage of P, an illiterate lady, guileless and trusting old woman and had obtained her signature/thumb impression on the document he then claimed was a sale deed.
The suit was twice decreed and twice remanded by the appellate Court.  The second time, however, the appellate court permitted the defendants to amend their written statement and to give more particulars regarding the fraud, so as to bring the pleading within the requirement of Order 6 Rule 4 of the Civil Procedure code.  This order because final.  After the amendment, the the plaintiff to be a sale deed had been obtained by fraud and apart from that it was only a deed of mortgage.  The trial Court also found that P had repaid the full amount with interest.  the first appeal was dismissed.  The first appellate Court also examined the case of fraud and nature of Ex. P- 10 and concurred with the findings of the trial Court.
The High court, however, allowed the second appeal and decreed the suit holding that defendants had failed to plead and prove the fraud alleged by them and also that in view of Sections 91, 92 of the Evidence Act, 1872 it was not open to the lower Court to rely upon oral evidence adduced by the defendants to prove that Ex. P-10 was a mortgage deed and not a sale deed.  Was the High Court justified in allowing the second appeal and decreeing the suit?  Answer with reference to the provisions of the Civil Procedure code and case law, if any.
(b)   A suit for Specific performance filed by the respondent was decreed with direction to him to deposit the balance amount of consideration within the specified time-limit and a further direction was given to the appellant to execute the Sale deed, pursuant to an agreement to sale of land between the appellants as owner and the respondent.  The decree was confirmed by the High Court without extending the time limit for depositing the balance amount.  However, the respondent decree-holder filed execution applications five long years after the passing of the decree and three long years of confirmation thereof the High Court.  The executing Court dismissed the execution applications on the ground of the applicants failure to deposit the balance amount within the time stipulated in the decree.  Respondent decree holder approached the High Court in revision and by an application, sought extension of time for payment.  The High Court remitted the application to the trial Court for disposal.  Comment on the propriety of the order of the High Court.  Did the equity require that the discretion of the Court under Section 28 of the Specific Relief Act, 1963 to extend the time for payment should be exercised in favour of the respondent decree holder?  Answer with reference to Sections of the Specific Relief Act and case-law if any.

Part-B

Q.4.  (a)  A, an analyst, in his examination-in-chief, stated in definite terms that the contraband was charas.  However, in his cross-examination, he could not answer whether the contraband contained cow-dung also.  Will the probative value of his evidence be destroyed because he could not answer whether the contraband contained cow- dung also?  Answer with reference to Sections of Indian Evidence Act, as also case law, if any.
(b)    Three prosecution witnesses saw a little girl crying in the company of a man on the day of the incident.  Both the accused and the victim were strangers to the PWs.  When the PWs heard about the murder of a little girl, they recollected seeing the man alongwith the little girl the previous day.  PWs later identified the accused in Test Identification parade.  It was contended by the defence that there was inherent incredibility in the evidence of the PWs as normally accused would have taken precaution, not to be seen by any other person on the way.  Comment on this plea of the defence and answer the question with reference to Section(s) if the Indian Evidence Act, 1872 and case law if any.
Q.5.  (a)  According to the prosecution, there was an enmity between N and his nephew S on account of a dispute in respect of agricultural land and the agricultural produce therefrom.  On the date of occurrence,  S fired a pistol shot at N.  N raised the alarm on account of which PWs 1 and 2 reached the spot and at that point of time, N fell down and S made good his escape.  PWs 1 and 2 brought N to police station whereupon statement of N was recorded and treating the same as an FIR, the police started investigations and sent up S for trial.  During the trial, PWs 1 and 2 stated as to what they had heard from the injured at the relevant time and according to PW-2 the injured had told him that S had fired upon him.  The trial Court convicted S under Sections 307 and the High Court dismissed his appeal.  Before the Supreme Court, the appellant-accused contended that the evidence of PW-2 was not admissible under Section 6 of the Evidence Act, inasmuch as what the injured told the witness and the factum of alleged shooting by accused at the injured could not be said to have formed part of the same transaction as according to him, by the time he reached the scene of occurrence several people had gathered there.  Answer with reference to Sections of the Indian Evidence Act and case- law, if any.
(b)   The occurrence took place on 5.10.1984 at about 2.30 p.m.  The defence examined DW-2, who testified that she and PW-3 (an alleged eye- witness) were at Salem at the time of occurrence for execution of some documents in connection with a lorry transaction.  She proved sale receipt bearing the signatures of PW -3.  Though PW-3 admitted having sold the lorry mentioned in the sale receipt to DW – 2, he denied having gone to Salem.  The High Court rejected the evidence of DW -2 mainly because of the fact that PW -3 was recorded as present at the inquest which was shown to have been held at 5.00 p.m.  Was the High court justified in rejecting the evidence of DW -2?  Answer with reference to provisiosn of Indian Evidence Act and case-law if any.

Part-C

Q.6.  (a)  S, the appellant entered into an agreement to purchase a two-storeyed building belonging to N, the respondent.  The agreement was executed by S and an individual (defendant No. 2) who had been authorized in writing by N to enter into an agreement to sell the property at his discretion.  S also made payments by cheque of Rs. 1 lakh each to N and the other individual (defendant No. 2).  Thereafter, however,  the agreement fell through and S demanded his money back.  Defendant No. 2 paid Rs. 50,000/- but N refused outright to return any money.  S filed a suit for recovery against defendant No. 2 for the balance amount and against N, defendant No. 1 for the entire Rs. 1 lakh alongwith 14% interest.  the suit was decreed as against defendant No. 2 but dismissed as against defendant No. 1 on the ground that there was no privity of contract between S and defendant No. 1.  On the same reasoning, the High Court dismissed S's appeal.
At the trial respondent N had not in clear terms, denied receiving Rs. 1 Lakh.  He had stated the cheque was given to him by defendant No. 2.  He had denied his signatures wherever it appeared : on the authorization letter; on the agreement to sell executed between S and defendant No. 2; he had even denied his signatures on his lawyer's vakalatnama and on the Written Statement submitted on his behalf.  Was the High Court justified in dismissing S's appeal?  Answer with reference to Sections of the Indian Contract Act, 1872 as also case law if any.
6  (b)  An employee is told that insurance premium will be deducted from his salary every month and remitted by employer to the insurance company under an agreement between the insurance company and the employer.  Is the employer acting as an agent of the insurance company and can he be held liable in that capacity?
Q.7.  (a)  The Coca-Cola company entered into an agreement for grant of franchise to Gujarat Bottling company to manufacturers, bottle,  sell and distribute beverages under trade marks held by the franchiser.  There was a negative stipulation in the agreement which restrained the franchise not to manufacture, bottle, sell, deal or otherwise be concerned with the products, beverages of any other brand or trade marks/trade names during the subsistence of this agreement including the period of one year's notice.  The operation of this stipulation was to be confined only during subsistence of the agreement and not after term thereof.  was the negative stipulation in restraint of trade?  Answer with reference to provisions of Contract Act and case law, if any.

(b)  'A', manufacturers of a particular brand of biscuits, sold in tins for price of biscuit plus 20% deposit refundable in case the tin was returned within the stipulated period in good condition.  No sale tax was charged on the deposit.  B, retail merchants, did not return the tins.  Does the transaction become a sale on the expiry of the stipulated period as thereafter, the seller ceases to be under an obligation to refund the deposit?  When there is not obligation to return the tins, would it be a case of bailment within the meaning of Section 148 of the Indian Contract Act or would it be a Pledge?

Part-D

Q.8  (a)  A registered partnership firm was reconstituted and an application was filed with the Registrar of Firms for recording the changes.  Thereafter, the firm entered into a contract with another party and later filed a suit against that party for breach of contract.  The suit was filed through one of its partners who prior to recnstitution, was partner in his individual capacity and thereafter, as Karta of HUF.  Later, Registrar of Firms recorded the changes as prayed for by the firm with retrospective effect from the date of actual reconstitution of the firm.  Apart from the fact that due to retrospective recording of changes by Registrar, the reconstituted firm came into existence with effect from the date of its actual reconstitution.  Is the Suit filed by the registered firm maintainable? Answer with reference to Sections of the Indian Partnership Act and case law, if any.
(b)  The respondent company placed an order for supply of Copra (drycoconut) from State of Kerala to Hyderabad (State of Andhra pradesh) by lory, with the appellant.  the dispatch was at the risk of the respondent-purchaser.  The stocks also were got insured by the respondent.  Weighment of the stock at Hyderabad was done for respondent's satisfaction.  Did the property in goods pass and sale took place in State of Kerala or Hyderabad?  Answer with reference to provisions of Sale of Goods Act and case law, if any.
Q.9  (a)  The partnership firm consisted of two persons and appellant.  Subsequently appellant, due to his old age, stepped out from the business, foregoing his right to share in the goodwill of the firm, and the other partners agreed to take over the partnership in consideration of setting off losses, if any, from the business amount, payable towards the share of the appellant, in the goodwill of the firm.  Accordingly, the other two partners and their sons constituted a new partnership firm on 15.2.1970 and contined the same partnership business in the same place and with the same registration number.  On death of one of the two partners in 1972, a Suit was filed by the other partners of the new firm for dissolution of the firm and rendition of accounts by the appellant.  in this connection, it is pointed out that the new partnership had come into existence, to which admittedly, the appellant was not a partner; nor did the plaintiffs claim that he was being paid any profits out of the business carried on thereafter.  The High Court on appeal, adjudicated that the old firm did not automatically stand dissolved unless there was a dissolution and settlement of accounts.  Was the High Court justified in its view?  Discuss with reference to Sections of the Indian partnership Act, 1932 and case law, if any.
(b)  (i)  Is the auction sale voidable at the option of the buyer if the seller makes use of pretended bidding to raise the price?
(ii)  The appellant,  Food Corporation of Indian, invited tenders for stocks of damaged foodgrains in accordance with the terms and conditions contained in the tender notice.  The respondent tenderer's bid was highest, but the appellant being not satisfied about the adequacy of the amount offered in the highest tender, instead of accepting any tenders submitted, invited all the tendereers to participate in the negotiations.  The respondent refused to revise the rate offered in its tender.  In the negotiation, the appellant was offered an excess amount of Rs. 20 lacs.  The respondent filed a Writ Petititon in the High Court challenging the appellant's refusal to accept the highest tender submitted by it, claiming that the appellant having chosen to invite tenders, it could not thereafter, dispose of the stocks of damaged foodgrains by subsequent negotiations, rejecting the highest tender on the ground that a higher bid was obtained by negotiations.  This action of the appellant was alleged to be arbitrary and unreasonable.  The High court accepted the contention of the respondent and allowed the Writ Petition.  Was the High Court justified in allowing the Writ Petition?  Answer with reference to Sections of the Indian Contract Act, 1872 and Sale of Goods Act, 1930 and case law, if any.

Part-E

Q.10  (a)   The Delhi Development Authority auctioned in 1985, as a developed plot, a plot measuring 162 sq.  metres, with two sides open.  The respondents were the highest bidders and the auction was closed in their favour.  Thereafter, they desposited Rs. 81,250/- which was 25% of the bid amount.  Meanwhile, an PIL was filed by a third party, contending that the plot was not auctionable because it was situated in a green belt.  An ad interim writ staying the auction was issued by the High Court, but was not brought to the notice of the Vice-Chairman, DDA, the competent authority for the purpose of accepting or ejecting bids, till after he had already signed his approval of the bid on the file.  After coming to know of the High Court order, the Vice Chairman did not communicate the acceptance to the respondent.  The respondents filed a Writ Petititon before the High Court of Delhi, seeking an order directing the DDA, to finalise the auction sale proceedings and hand over possession of the plot.  The High Court did not grant those prayers, holding the plot not auctionable at all.  However, the High Court directed vide order dated 1.8.91 that, since the respondents were in no way at fault, and an expectation had been built up in their favour, the DDA must provide respondents with an alternative plot of the same size and price and in the same locality.  The DDA filed a Special Leave Petition against this order, before the Supreme Court of India.  In 1994, while the appeal was pending, the Zonal Plan was modified and the plot put back in the residential zone.  Before the Supreme Court, the respondents contended that on the basis of Doctrine of 'Feeding the Grant by Estoppel' as set out in Section 43 of the Transfer of Property Act, the DDA should be directed to finalise the auction sale or provide an alternative plot as held by the High Court.  Decide with reference to case law, if any.
(b)  In 1967, the appellant-landlord had let out the premises to the respondent-tenant.  IN 1991, after retiring from service, the appellant-landlord filed an application under Section 13-A of the East Punjab Urban Rent Restriction Act, seeking eviction of the tenant on the ground of being a specified landlord under Section 13-A and also for personal need.  The Rent Controller allowed the application finding that the landlord was a specified landlord and the premises had been let for residential purpose.  It was fact that the tenanted premises were being used to run a school.  The tenant filed a revision application under Section 18-A (8) of the aforesaid Act, before the High Court which set aside the finding of the Rent Controller on the purpose of letting.  The High Court instead, held that the rent receipts showed that the letting was for non-residential purposes and set aside the order of eviction.  Was the High Court justified in setting aside the finding of the Rent Controller on the purpose of letting?  Answer with reference to provisions of E.P. Urban Rent Restriction Act, 1949 and case law, if any.
(c)    The plaintiffs filed a suit for mandatory injunction directing defendants to demolish construction and vacate illegal and forcible possession of the property.  No documentary evidence, however, was produced by the plaintiffs, showing that they were in possession of the property.  The Suit was dismissed by the trial Court.  But, the first appellate Court decreed the Suit on the basis of erroneous conclusion that the Sale Deed in favour of second defendant was invalid without there being any issue to that effect and without the vendee in whose favour, the sale deed was executed, being parties to the Suit, and that jamabandi was forged and fabricated when no such plea was raised by the plaintiffs and there was no evidence to that effect.  the whole approach of the first appellate Court was based on suspicion and bias.  In a second appeal, the High Court interfered with the judgment of the first appellate Court and restored the judgment of the trial Court.  Was the High Court justified in interfering with the judgment of the first appellate Court?  Answer with reference to the provisions of Punjab Courts Act, 1918 and case law, if any.
Q.11  (a)  The Suit property was leased in favour of 'A', by the owner by executing lease deeds.  Thereafter, usufructuary mortgage deed was executed in favour of S, wife of A.  both husband and wife were living together and continued to do so till death of husband A.  From the recitals in the Mortgage Deeds, it was apparent that the parties unequivocally and without any reservations, intended that the leasehold rights of A would be kept alive despite execution of the usufructuary mortgage.  After death of 'A', lessee, a suit was filed for redemption of mortgage property.  A preliminary decree for redemption under Order 34 Rule 7 Civil procedure code was passed by the Court of Munsif taking the view that the lessee's right would merge at the time of execution of the mortgage deed.  An appeal was allowed, holding that there was no merger of the lease and the mortgage.  However, a second appeal was allowed by Single Judge of the High court, restoring the preliminary decree for redemption of the mortgage.  Was the High Court justified in restoring the preliminary decree for redemption of the mortgage/  Answer with reference to Sections of the Transfer of property Act and case law, if any.
(b)  The appellant-landlord filed an eviction petition against the two respondents on the grounds, inter alia, of subletting that respondent No. 1, R, had sublet the tenanted premises, a shop, to respondent No. 2, K.  It was admitted that R and K were brothers, and that R being involved in certain criminal proceedings, had absconded for quite sometime.  The Rent Controller allowed the petition and ordered eviction.  The appellate Court dismissed the tenant's revision.  Was the High Court justified in allowing the tenant's revision?  Answer with reference to provisions of the East Punjab Urban Rent Restriction Act, 1949 (3 of 1949) and case law, if any.
(c)  (i).  Can the District Sessions Judge make appointment to ministerial posts in the office of the Judge, Small Cause Court?
(ii).  Does the 'appointment' refer to both initial recruitment and subsequent promotion under Section 35(1) of the Punjab Courts Act, 1918?