Civil Law I

Himachal Civil Services Judicial
Examination, 1998
Civil Law Paper I
Time : Three Hours                                                                                                                                                                                                                                      Maximum Marks : 200

Note : Question No. 1 is compulsory.  Answer any other four questions.  All questions carry equal marks.

Q.  1  (a)  State the remedies open to the plaintiff whose suit has been dismissed for deault of his appearance or for default of appearance of both the parties.
(b)  Two suites were filed by plaintiff against defendant and issues in both suits were common.  Both the suits were decided on merits after trial by a common judgment.  Two appeals were filed.  One of the appeals was dismissed as barred by limitation.  What is the effect of this order on the other appeal, which was filed within limitation ? What will be the effect of the decision given in the second appeal on the appeal earlier dismissed as time-barred  ?
(c)  What order would the Civil Judge pass in a case where the plaint does not disclose any cause of action ? Is a defendant entitled to participate in the suit even after his written statement has been struck off  ?
(d)  Distinguish between 'order', judgment' and 'decree'.
Q.  2  (a).  Discuss the law relating to suits by or against minors.
(b)  In a suit, 10.10. 1997 was fixed for final hearing.  On that date the defendants moved an application for adjournment on the ground of illness.  The prayer was allowed subject to payment of costs and 10.12.1997 was fixed for final hearing.  On this date, counsel for both the parties were present and the counsel for the defendants after paying the costs moved another application for adjournment.  The court rejected this application.  Thereupon counsel for the defendants stated that he had no further instructions and was therefore, withdrawing from the case.  The court directed that the case would proceed under Order XVII Rule 3 of C.P.C.  Thereafter the plaintiff produced his evidence and closed the case.  On 10.01.1998 the suit was decided on merits.  Under these circumstances, whether an application under IX Rule 13 C.P.C. lies  ?  Discuss and state any other remedy, if any, available to defendants  ?
(c)  State whether the following are pleadings, giving reasons  :
(i)  Replication to written statement ;
(ii)  Application for leave the defend;
(iii)  Application for amendment of pleading; and
(iv)  Annexures referred to in the plant.
Q.  3(a)  "Every partner of a firm is the co-principal and agent of his firm"  Explain this statement and state implied authorities of a dormant partner.
(b)  In a partnership firm, there are three partners – A, B and C who have invested Rs. 10,000/-, 20,000/- and Rs. 30,000/- respectively in the business of the firm.  According to the partnership agreement, the liability of every partner towards the debts of the firm has been fixed in proportion of the capital invested by him.  Business suffers losses and no capital is left with the firm.  In the meantime 'B' becomes insolvent.  In which proportion will the payment of the loan of Rs. 80,000/- payable by firm will be made by each partner ?  Stating briefly the rules regarding the settlement of accounts amongst partners, give the solution of the above stated problem.
(c)  Answer the following giving reasons :
(i)  Can there be specific performance of Partnership Agreement  ?
(ii)  Can a firm bring suit for libel or slander  ?
(iii)  Can a partner of an unregistered firm sue other partner or the firm for enforcing his rights arising out of partnership agreement  ?
Q.  4(a)  State the facts of which evidence need not be given and also facts of which evidence cannot be given.
(b)  Define the term "Res Gestae"
(c)  Write notes on following  :
(i)  "Privileged Communication"
(ii)  "Burden of Proof."
Q.  5(a)  Can A recover the amount promised to him by B in the following cases  :
(i)  A procured B a second wife on B's promise to pay him Rs. 500/-.
(ii)  b has promised to pay A Rs. 1,000/- for his horse, which has died before the contract, but A was ignorant of the death.
(iii)  B promised to pay his son A Rs. 10,000/- if he would not marry C.
(iv)  b, a minor, promised to pay A Rs. 10,000/- for his car which has been delivered by A to B.
(b)  'A', 'B', and 'C' as sureties for D enter into several bonds each in a different penalty namely 'A' in the penalty or Rs. 10,000/- 'B' in that of Rs. 20,000/- and C in that of Rs. 40,000/- conditioned for D's duly accounting to E.  D makes default to the extent of Rs. 30,000/-.  How much 'A', 'B' and 'C' are liable to pay ?
(c)  'A' employs B to beat C and agrees to indemnify him against all consequences.  B beats C and has to pay damages to C.  Is A bound to indemnify B? 
(d)  "The liability of the surety is coextensive with that of the principal debtor."  Comment.
Q.  6.  Write notes on following  :
(a)  "Nemo dat quod non habet".
(b)  Rights of unpaid seller against the goods.
(c)  Implied conditions and implied warranties.
(d)  Auction sale.
Q.  7  (a)  Discuss in brief the principles on which a court acts in granting specific performance of a contract.  Also point out the defence available against specific performance.
(b)  Dr. Konda agree to perform a certain operation and takes advance of Rs. 10,000/- but later on refuses to operate.  Dr. Konda is the only specialist available in the local area regarding the agreed operation.  Can the patient get decree of specific performance from court against Dr. Konda?
(c)  A files a suit against B for declaration that house X belongs to him.  He also prays for delivery of possession of the house to him.  The court passes a declaratory decree in favour of A and order that possession of the house be delivered to A.  Now, C files a suit against A for delivery of house X to him on the ground that the house belongs to him.  Will the court accept this defence  ?
(d)  Ram forcibly takes possession of his house from Shyam, his tenant, on 1st March 1993.  On 1st April 1993, Shyam initiates proceedings under section 6 of the Specific Relief Act, 1963 against Ram to regain possession of the house.  Ram takes the defence that he, being the owner of the house, is entitled to retain the possession of the house.  Will Shyam succeed ? Decide.
Q.  8  (a)  Discuss the salient features of the Himachal Pradesh Courts Act, 1976.
(b)  'P' executed a deed of absolute sale in favour of 'Q'.  In a suit filed on the basis of the deed, P seeks to adduce oral evidence to prove that the possession of the property remained with vendor P and that the deed was intended to operate only as a mortgage deed.  Discuss with reasons whether he can do so  ?
(c)  A dancer makes a promise to the owner of a theatre that she will give dance performance exclusively in his theatre for a period of fifteen days, and that during this span of time she will not give any dance performance in any other theatre.  After four days, the dancer stops giving dance performance in the theatre of the promise.  On the other hand, she starts giving dance performances in some other theatre.  Can the aggrieved owner obtain an injunction compelling the dancer to fulfill her promise of not giving dance performance anywhere else and also obtain specific performance against the dancer to give dance performance in his theatre ? Give reasons for your answer.
(d)  Will your answer be different in the problem given above in question if the dancer takes the plea and is able to prove that she has only charged the normal remuneration for her dance performance and as she has not charged extra amount for not giving dance performance in any other theatre, the second part of the promise is without consideration and thus being void, no injunction can be granted ? Decide.
Q.  9.  Write short note on any four of the following :-
(a)  Liquidated damages and penalty
(b)  Hearsay Evidence
(c)  Doctrine of frustration and impossibility
(d)  Presumed Agency and Agency by necessity.
(e)  Right of surety and co-surety against creditor.
(f)  Doctrine of Restitution.
(g)  Res-judicata;
(h)  Execution of a decree.