Civil Law I

Himachal Civil Services Judicial
Examination, 2000
Civil Law Paper I
Time : 3 Hrs.                                                                                                                                                                                                                                                    Max. Marks : 200

Note : Attempt Five questions only. Question No. 1 is compulsory.  All questions carry equal marks.

Q.  1(a)  "The Journey of 'the consent' as an essential element of a contract has been from reality to myth. "  Examine this statement with reference to standard form contract
(b)  "The law of partnership is but extension of law of principal and Agent."Comment.
(c)    'A' and 'B' carry on business in partnership.  The firm holds leadsehold for the purpose of business.  'A' dies before the affairs of the firm are completely would up, the lease expires and B renews it.  Is renewed lease a partnership property ? Discuss
(d)  'A' and 'B' separately sue C for a libel, which reflects upon each of them.  C in each case says that matter alleged to be libelous is true and the circumstances are such that it is probably true in each case or in neither.  A obtained a decree against C for damages on the ground that C failed to make out his justification.  Will this fact be relevant between B and C also?
Q.  2  (a)  "The improper admission or rejection of evidence shall not be a ground of itself for a new trial or reversal of any decision in any case, if it shall appear to court, before which such objection is raised, that independently to the evidence objected to and admitted, there was sufficient evidence to justify the decision or that if the rejected evidence, had been received, it ought not to have varied the decision. "Examine critically.
(b)  Discuss the provisions of the Himachal Pradesh Courts act, 1976 dealing with the Alternative Dispute Redressal Methods to expedite cheaper and quicker justice.
(c)  A, a resident of Delhi, B, a resident of Shimla and 'C' a resident of Calcutta, meet at Kumbha Mela in Allahabad.  There A and B borrowed Rs. 10,000/- from C and jointly executed pronote and handed in over to C.  All of them when back to their respective places, but money was not returned.  C wants to file a suit for recovery of his money.  Advise him about the place of suing.
(d)  In a suit between A and B it is proved that B is in possession of a document, of which a certified copy is permitted to be given in evidence.  A wants to prove the contents of the document against B.  B, notwithstanding notice to produce it, fails to produce the document.  A adduces oral evidence to prove the contents.  Is the evidence admissible.
Q.  3.  Write short note on any four of the following  :
(a)  "State's privilege to withhold the production of documents."
(b)  Novation of Contracts
(c)  Nemo Dat Quod Non Habet
(d)  Partnership by holding out
(e)  Declaratory Decree
(f)  Mis-joinder and non-joinder of parties
Q.  4  (a).  When a Temporary injunction may be granted and when it may be refused ? Is notice necessary before granting it ?
(b)  Distinguish between latent and patent ambiguity.  Under what circumstances evidence is excluded to explain or amend an ambiguous document ?
(c)  A presented an application for leave to sue in forma pauperis.  A dies pending the hearing of the application.  Can the application be continued by B who is legal representative of A?
(d)  Will the following expert evidence be admitted  :
(i)  Evidence of an architect as to depreciation of property by nuisance.
(ii)  Evidence of an expert to give him opinion upon the construction of a document.
(iii)  Evidence of Doctor as to loss of earning capacity, in a claim under the Workmen's Compensation Act.
Q.  5  (a)  A delivered to B a watch for repairs on payment of Rs. 50.  B subsequently felt that the reasonable charge for repairs should be Rs. 100/-.  He repaired the watch and claimed Rs. 100/- from A, who refused to pay the enhanced amount.  B retained the watch until payment.  Discuss respective rights of A and B.  (2000 H.P.)
(b)  K was assessed by the Sales Tax officer of Sale Tax on a certain forward contract.  K paid the assessed amount.  Thereafter the High court held that forward contracts were not subject to sale tax.  Can K ask for the refund of amount paid by him for the mistake of law ?
(c)  'A' lends money to B and C who are partners of a firm on the condition that he will be entitled to one third of the profits of the firm.  Discuss the legal position of 'A'.
(d)  'A prosecute B for stealing a cow from him.  B is convicted.  The cow has been sold by B to C.  A brings a suit against C for recovery of the cow and produces judgment against B in support of his claim.  Is the judgment relevant ?
Q.  6  (a).  A lets certain arable lands to B for the purpose of husbandry, but without any express contract as to the modes of cultivation.  Contrary to the mode of cultivation, customary in the district, B threatens to sow the lands with seeds injurious thereto and requiring many years to eradicate the same.  Has A any remedy against B to save the land from such injurious effect ?
(b)  'A' and 'B' enter agreement for the sale of a house and a plot of land for Rs. 70,000/-.  The agreement did not provide for separate valuation of the house and the plot of land.  The land belonged to A's wife.  A failed to make out title for the plot of land belonging to his wife.  Can B enforce the agreement for specific performance in respect of house alone  ?
(c)  A suit was duly instituted on March 1, 2000 and summons were issued to the defendant to appear and answer the claim.  The summonses were to be served in the prescribed manner on May 4, 2000.  Discuss the validity for service of summons in the light of proposed amendment in the Code of Civil Procedure.
(d)  A witness is asked whether he was dismissed from a situation dishonestly.  He denies it.  Can evidence be offered to show that he was dismissed for dishonesty  ?
Q.  7  Distinguish between any four of the following :-
(a)  Contingent Contract and Wagering Contract.
(b)  Judicial Confession and Extra judicial Confession
(c)  Sale by sample and sale by description
(d)  Indemnity and Guarantee
(e)  Mistake of Law and Mistake of Fact
(f)  Coercion and undue influence.
Q.  8.  Write explanatory notes on the following :
(a)  Anticipatory breach of contract
(b)  Recovery of possession of specific immovable property
(c)  Rights of minors admitted to benefits of partnership firm;
(d)  Passing of risk with property.
Q.  9  (a)  Discuss the hierarchy and pecuniary jurisdiction of the Courts in the light of the provisions of the Himachal Pradesh Courts Act, 1976.
(b)  Can the following contracts be specifically enforced:
(i)  A contract to lend Rs. 50,000;
(ii)  A contract to translate book into another language;
(iii)  A contract to construct a building;
(iv)  a contract to execute a mortgage.
(c)   A Munsif decided in a maintenance suit that the husband had abandoned his wife and therefore, the latter was entitled to maintenance.  Does the subsequent petition filed by the husband for judicial separation under Section 10 of the Hindu marriage Act, 1955 operates res judicata.
(d)  A the plaintiff, knew the whereabouts of B the defendant and in spite of that fact, A obtained by false representation, an order for substituted service, by giving to the Court to understand that B had deliberately been avoiding service.  Discuss whether B had been properly served ?