Civil Law II

CIVIL LAW - II

Q.  1  A entered into a written contract with B at Delhi, on 1.4.98, for supply of cement at the rate of Rs. 100 per bag weighing 50 kgs.  A is having its office in Delhi as well as Rohtak and Gurgaon.  B is having office only at Rohtak.  On 20.4.1998, A supplied cement worth Rs. 25,00,000 (Rupees Twenty five lakhs) to B at Rohtak.  B made payments from time to time, sometimes by cheque and sometimes in cash at Rohtak.  B made payments from time to time, sometimes by cheque and sometimes in cash at Rohtak.  Last payment by cheque was made on 25.6.1998 and last payment in case was made on 8.10.1998.  No receipt of cash payment was however obtained.  An amount of Rs. 3 lakhs remained unpaid despite notice sent by A to B.  A then filed a suit at Delhi for recovery of the principal sum of Rs. 3 lakhs (Rupees Three Lakhs), along with interest from 20.4.1998, at the rate of 18% per annum.  Interest was claimed on the basis of an oral agreement subsequent to the written contract dated 1.4.1998.  He also claimed pendent lite and future interest at the same rate, along with costs of the suit.  Suit was filed on 1.10.2001.
B filed written statement contesting the suit.  He took preliminary objections that (i) Delhi Court had no jurisdiction in the matter as it was doing business and goods were supplied at Rohtak; (ii) the suit was barred by limitation; and (iii) no evidence of an oral agreement for payment of interest was admissible in view of section 92 of the Evidence Act.  B, however did not dispute the facts.
Frame issues on the pleadings of the parties and write a reasoned judgement.
OR
A let out first floor of house No. M-25, Greater Kailash, New Delhi to B, at the rent of Rs. 3,500 per month, for a period 5 years, starting from 1.4.1998.  Since B was in arrears of rent, he filed a civil suit against him on 20.6.2002, for recovery of arrears of rent for the period from 1.7.1999 to 31.12.2000.  The suit is still pending.  As rent for subsequent period was also not paid, he filed another suit on 30.11.2004 for recovery for arrears of rent for the period from 1.1.2001 to 31.3.2004.  He pleaded that his entire claim was within limitation as B had issued a cheque of Rs. 10,000 to him towards part payment of rent for the period from 1.1.2001 to 30.11.2001, which when presented to the bank was dishonoured.  He also claimed interest at the rate of 12% per annum, without pleading any basis for claiming interest.
B filed written statement contesting that suit.  He took preliminary objections that (i) rent for the period from 1.1.2001 to 31.5.2002 was not claimed in the previous suit and cannot be claimed in the present suit; (ii) rent for the period from 1.1.2001 to 31.10.2001 was barred by limitation; (iii) there was no agreement for payment of interest and therefore no interest is payable.  He contended that a dishonoured cheque cannot extend the period of limitation.  Facts however were not disputed by him.
Frame appropriate issue arising from the pleadings of parties and write a reasoned judgment.
Q. 2  Answer any two.  Both questions carry equal marks.
(a)  (i)  An order rejecting a plaint under Order VII, Rule 11 of C.P.C. is not an adjudication of the matter in dispute.  Is it a decree?
(ii)  What is meant by 'mesne profits?
(b)  (i)  A supplied goods at Mumbai to a company having its principal office at Mumbai and branch offices throughout the country, including Delhi.  Since B failed to pay the price of the goods, A filed a suit in Delhi, for recovery of price of goods, on the ground that B was also carrying on business at Delhi and therefore, Delhi Court also had jurisdiction to try the suit.  Decide.
(ii)  A filed suit against B for recovery of arrears of rent.  B claimed that there was no relationship of landlord and tenant between the parties.  The trial court decided against A.  He filed an appeal against the judgement, but during appeal, he withdrew the suit with liberty to file fresh suit on the same cause of action.  He then filed a fresh suit on the same cause of action.  The defendant contested the suit and claimed that finding of trial court in the previous suit operates as res judicata.  Decide.
(c)  What are the conditions for applicability of doctrine of res judicata between co-defendants?
Q. 3  Answer any two.  Both carry equal marks.
(a)  (i)  A executes a gift deed, gifting a house to B.  Gift deed is duly registered.  There is a recital in the gift deed that possession of the house has been handed over to B.  In a subsequent litigation between the parties A seeks to prove from circumstances that in fact he had not given possession to B.  However, B claims that admission made by A in the gift deed is conclusive and he can't lead evidence to prove otherwise.  Decide.
(ii)  How can 'Books of Account' kept in regular course of business be proved?
(b)  (i)  How can the certified copy of a public document be proved?
(ii)  Bank of Baroda filed a civil suit against B for recovery of money.  The suit was filed through 'A' who claimed to be attorney of the bank.  The plaintiff filed a power of attorney, duly authenticated by a Notary Public.  However, neither executants of the power of attorney was produced in the witness box nor any resolution from Board of Directors of the Bank was filed to prove that he was competent to execute power of attorney on behalf of the bank.  Is the suit filed by a competent person?
(c)  Which of the following documents are compulsorily required to be registered and why ?
(i)  Document containing recital of a previous gift.
(ii)  Assignment of share of partner in assets of a firm owning immovable properties.
(iii)   Relinquishment deed.
(iv)   Rent-note.
(v)   Document appointing a person as guardian of immovable properties of a minor.
Q.  No. 4  Answer any two.  Both carry equal marks.
(a)  (i)  After recording of evidence of both the parties, defendant applies for additional evidence on the ground that one material witness, who was out of country had since returned to India.  Decide.
(ii)  Defendant in a suit failed to produce evidence on a date fixed by the court for this purpose.  Cost of Rs. 2,000 was imposed on him and the case was adjourned.  On next date of hearing, defendant did not pay the cost and the plaintiff also did not insist on cost.  The case was again adjourned.  On next date, plaintiff pressed for striking out the defence, as the cost had not been paid.  Decide.
(b)  (i)  can the executing court go behind the decree?
(ii)  defendant in a suit did not appear on the date fixed for recording of evidence.  He was proceeded ex parte and judgement was reserved.  Next day, he filed an application under Order IX, Rule 13 of C.P.C. for setting aside the decree, on the ground that he had met with an accident while coming to the court and therefore could not appear on the date of hearing.  He also produced documentary proof of his accident and medical treatment.  Decide.
(c)  What are the principles governing grant of leave to defend, in a suit filed under order XXXVII of Code of Civil Procedure.
Q.  No. 5  Answer any two.  Both carry equal marks.
(a)  (i)  The plaintiff in a suit at Delhi applies to the court to issue summons to (i) A, the defendant, residing at Jalpaiguri, and (ii)  B, witness, residing at Ahmedabad, both of which are more than 500 km.  from Delhi.  Can his request be granted?
(ii)  Can the following be attached in execution of a decree for money and why:-
1.    residential house fully occupied by the judgement Debtor
2.    salary of guarantor
3.    tenancy Rights
4.    pay of a Brigadier in Army
5.    pension
(b)  Is a trespasser entitled to injunction from civil court against rightful owner of a house?  If so, when?
(c)  (i)  A files a suit for possession and mesne profits against B.  In his witness statement, B claims that value of property subject matter of the suit exceeds the limit of pecuniary jurisdiction of the court.  He files an application to treat the issue of valuation as a preliminary issue.  Decide.
(ii)  B, defendant in a suit did not appear despite service of summons and was proceeded exparte.  He died during pendency of the suit.  Instead of seeking impleadment of his legal representatives, plaintiff files an application seeking exemption from substituting the legal representatives of B.  Decide.