43. In which of the following cases, did the Supreme Court uphold the validity of the Code of Civil Procedure Amendment Act of 1999 and 2002?
A. Delhi H.C. Bar Association Versus UOI
B. Allahabad H.C. Bar Association Vs. UOI
C. Salem Advocate Bar Association Vs. UOI
D. Punjab and Haryana High Court Bar Association Vs. UOI
Answer
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8. In which of the following cases, did the Supreme Court uphold the validity of the Code of Civil Procedure Amendment Acts of 1999 and 2002 ?
(a) Delhi H.C. Bar Association v. UOI
(b) Allahabad H.C. Bar Association v. UOI
(c) Salem Advocate Bar Association v. UOI
(d) P & H H.C. Bar Association v. UOI
Answer
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23. In which of the following cases, did the Supreme Court uphold the validity of the Code of Civil Procedure Amendment Acts of 1999 and 2002 :
(a) Delhi H.C. Bar Association v. UOI
(b) Allahabad H.C. Bar Association v. UOI
(c) Salem Advocate Bar Association v. UOl
(d) P&H H.C. Bar Association v. UOI
Answer
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76. The Code of Civil Procedure, 1908 extends to the :
(a) whole of India
(b) whole of India, except the State of Jammu and Kashmir
(c) whole of India, except the Scheduled Areas and State of Jammu and Kashmir
(d) whole of India, except the State of Jammu and Kashmir and Tribal Areas
Answer
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71. Rejection of plaint is a :
(a) decree
(b) order
(c) both (a) and (b)
(d) neither (a) nor (b)
Answer
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9. Which of the following is not an essential element of a decree :
(a) A formal expression of adjudication
(b) Conclusive determination of the rights of the parties
(c) An adjudication from which an appeal lies as an appeal from an order.
(d) The adjudication must have been given in a suit
Answer
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65. Judge is defined as the presiding officer of a civil court under __________________ of the code of civil procedure, 1908
(A) Section 2 (8)
(B) Section 2 (4)
(C) Section 2 (5)
(D) Section 2 (2)
Answer
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50. Who amongst the following is not a ‘public officer’ within the meaning of section 2(17) of CPC?
(A) A Judge
(B) A person in service under the pay of Government
(C) Sarpanch of a Gram Panchayat
(D) None of the above.
Answer
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77. A preliminary decree :
(a) Determines the rights of the parties with regard to some or one of the matters in controversy in the suit but does not completely dispose of the suit.
(b) Is a stage in working out the rights of the parties which are to be finally adjudicated by a final decree
(c) Both (a) and (b)
(d) Neither (a) nor (b)
Answer
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88. In every plaint facts shall be proved by :
(a) verification
(b) affidavit
(c) on oath
(d) all of above
Answer
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5. Petitions of the Supreme Court under Article 32 of Constitution are subject to the rule of Res Judicata except:
(a) Quo Warranto
(b) Habeas Corpus
(c) Certiorari
(d) Prohibition
Answer
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64. Which of the following is/are decree/s?
(A) Order of abatement of a suit
(B) Dismissal of appeal as time barred.
(C) Dismissal of suit for want of evidence.
(D) All of the above
Answer
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77. If two suits between same parties involve same subject matter and same question then…………………..suit/s should be stayed.
(A) Former
(B) Subsequent
(C) Both
(D) None of the above
Answer
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30. Which of the following is a leading case on the exclusion of the jurisdiction of civil courts?
(A) Dhulabhai V. State of M.P.
(B) Gundaji V. Ramchandra
(C) Noor Mohd. Khan V. Fakirappa
(D) All of the above
Answer
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3(2) Distinguish between res-judicata and res-subjudice. Whether principal of res-judicata would be applicable against co-defendants?
Answer
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6. (i) Under the provisions of Civil Procedure Code plea of adverse possession is a defence available
(a) only to plaintiff against defendant
(b) only to defendant against plaintiff
(c) both plaintiff and defendant
(d) only to movable property
(ii) The reappreciation of evidence in second appeal
(a) is subject to review
(b) is permissible
(c) is not permissible
(d) is an admitted fact.
(iii) Sweeping change introduced by Civil Procedure Code (Amendment) Act, 2002 is with the object to
(a) give more power to Civil Courts
(b) reduce the power of Civil Courts
(c) cut short delay in disposal of suit
(d) make provisions stringent.
(iv) Preliminary decree can be passed in a suit
(a) for partition
(b) of partnership
(c) for possession and mesne profits
(d) all the above.
(v) Preliminary decree is
(a) which determines the rights of the parties with regard to some or one of the matters in controversy in the suit but does not finally dispose of the suit.
(b) which determines the rights of the parties with regard to some or one of the matters in controversy in the suit, which may have the effect of final disposal of the suit.
(c) both (a) and (b)
(d) neither (a) nor (b)
(vi) A decree becomes final 1
(a) when it conclusively determines the rights of the parties
(b) when no appeal has been preferred against the decree
(c) both (a) and (b)
(d) neither (a) nor (b)
(vii) which of the following is not a decree
(a) dismissal in default (b) rejection of a plaint
(c) both (a) and (b) (d) neither (a) nor (b)
(viii) Order has been defined as a formal expression of any decision of a civil court which is not a decree, under
(a) Section 2(1) ofC.P.C. (b) Section 2 (14) of CP.C.
(c) Section 2 (9) of CP.C. (d) Section 2 (16) of CP.C.
(ix) A decree holder has been defined as a person in whose favour a decree has been passed or an order capable of execution has been made, under
(a) Section 2 (13) of CP.C. (b) Section 2 (3) of CP.C.
(c) Section 2 (4) of CP.C. (d) Section 2 (16) of CP.C.
(x) A decree holder
(a) need not be a party to the suit
(b) the term is not confined to plaintiff
(c) both (a) and (b)
(d) neither (a) nor (b).
(xi) Foreign court under Section 2 (5) of means 1
(a) a court situated outside India
(b) a court situated outside India and not established under the authority of Government of India
(c) a court situated in India applying foreign law
(d) all the above
(xii) Judgment under Section 2 (9) means 1
(a) a decree (b) dismissal of an appeal summarily
(c) statement of grounds of an order or decree
(d) all the above
(xiii) Legal representative under Section 2 (11) of C.P.C. means a person who is
(a) Relative of parties to the suit
(b) co-sharer of the benefits assuming to parties to the suit
(c) who is law represents the estate of the deceased
(d) all the above
(xiv) ‘A’ thes leaving behind a son ‘X’ and a married daughter ‘Y' a suit filed by ‘A’, after his death, can be continued by
(a) ‘X’ alone as legal representative
(b) ‘Y’ alone as legal representative
(c) ‘X’, ‘Y’ and the husband of Y as legal representatives
(d) ‘X’ and ‘ Y’ both, as legal representatives
(xv) A judgment contains
(a) concise statement of the case
(b) the points for determination
(c) the decision on the points of determinations and the reason thereof
(d) all the above.
(xvi) Who amongst the following is not a legal representative
(a) a trespasser (b) an intermeddler
(c) a creditor (d) both (a) and (c)
(xvii) ‘Mesne profits’as defined under Section 2 (12) means
(a) those profits which the person in wrongful possession of such property actually received or might have received together with interest
(b) those profits which the person in wrongful possession of property actually received including profits due to improvements made by the such person
(c) those profits which the person in wrongful possession of such property actually received or might have received but without any interest on such profits
(d) those profits which the person in wrongful possession of such property actually received.
(xviii) Foreign judgment as defined under Section 2 (6) of C.P.C. means
(a) judgment given by an Indian Court in respect of foreigners
(b) judgment given by a foreign court
(c) both (a) and (b)
(d) neither (a) nor (b)
(xix) Who amongst the following is not a ‘public officer’ within the meaning of Section 2 (17) of CP.C. 1
(a) a Judge
(b) a person in service under the pay of Government
(c) Sarpanch of a Gram Panchayat
(d) none of the above
(xx) Basis of distribution of the jurisdiction of Indian Courts is
(a) pecuniary jurisdiction (b) territorial jurisdiction
(c) subject-matter jurisdiction (d) all the above
Answer
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14. Discuss the problems regarding the exclusion of jurisdiction of civil court under Section 9 of C.P.C. with reference to the decision of the Supreme Court in the case of Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78. 10
Answer
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66. Principle of res judicata applies to……………
(A) Suits only
(B) Execution proceedings only
(C) Arbitration proceedings only
(D) Suits as well as execution proceedings
Answer
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14. Explain the law relating to stay of suit and consolidation of suit with reference to the provisions of the Code of Civil Procedure. [10]
Answer
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1. (a) Explain the law relating to stay of suit and consolidation of suits with reference to provisions of the Code of Civil Procedure. 10
Answer
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10. (b) ‘A’ files a suit against ‘B’ in respect of a house on the ground of a will in his favour by original owner, ‘M’. A previous suit against the same defendant filed by ‘A’ on the ground of ‘A’ being an heir of ‘M’ had already failed. How would you decide the present suit? Give reasons for your answer. 10
Answer
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2. “Jurisdiction of Court to decide disputes arising out of contractual relations cannot be decided by an agreement between the parties”. Discuss. 15
Answer
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34. Where two or more Courts have the jurisdiction, the jurisdiction of a Civil Court under Section 20, C.P.C.:
A. Can be excluded by a clear agreement between the parties
B. Cannot be excluded under any circumstances
C. Can be excluded by a Court’s order
D. None of the above
Answer
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42. Which of the following is correct statement insofar as Section 20 of the Code of Civil Procedure, 1908 is concerned?
A. The suit has to be instituted in the Court of the lowest grade competent to try it
B. The suit has to be instituted in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides or carries on business or personally works or gain
C. The suit has to be instituted in the Court within the local limits of whose jurisdiction, the cause of action wholly or in part arises
D. All the above are correct
Answer
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46. ‘A’ is a furniture producer at Saharanpur. ‘B’ carries on business at Varanasi. ‘B’ through his agent at Saharanpur, buys hundred chairs from ‘A’ and requires to deliver them to ‘C’ at Saharanpur. ‘B’ fails to pay the price of the chairs purchased:
A. ‘A’ may file suit only at Saharanpur
B. ‘A’ may file suit only at Varanasi
C. ‘A’ may file suit either in Saharanpur or at Varanasi
D. ‘A’ may file civil suit at Lucknow being capital of the Uttar Pradesh
Answer
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7. Which of the following is correct statement in so far as section 20 of the Code of Civil Procedure, 1908, is concerned?
(a) the suit has to be instituted in the Court of the lowest grade competent to try it
(b) The suit has to be instituted in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides or carries on business
or personally works for gain
(c) The suit has to be instituted in the Court within the local limits of whose jurisdiction, the cause of action wholly or in part arises
(d) All the above are correct
Answer
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17. A is a furniture producer at Saharanpur. B carrries on business at Varanasi. B through his agent at Saharanpur, buys hundred chairs from A and requires A to deliver them to C at Saharanpur. B fails to pay the price of the chairs purchased.
(a) A may file suit only at Saharanpur
(b) A may file suit only at Varanasi
(c) A may file suit either in Saharanpur or at Varanasi
(d) A may file a civil suit at Lucknow being capital "of the Uttar Pradesh
Answer
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97. Where two or more courts have the jurisdiction, the jurisdiction of a civil court under Section 20 CPC :
(a) Can be excluded by a clear agreement between the parties.
(b) Cannot be excluded under any circumstance.
(c) Can be excluded by a Court"s order.
(d) None of the above.
Answer
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34. Parties by their consent/ agreement-
(A) can confer jurisdiction on a court where there is none in law
(B) can oust the jurisdiction of a court when there is one in law
(C) can oust the jurisdiction of one of the courts when there are two courts having simultaneous jurisdiction in law
(D) All the above.
Answer
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54. A suit for compensation for wrong done to the person or to moveable property, where the wrong was done within the local jurisdiction of one court and the defendant resides within the local limits of another court
(A) can be instituted in the court within whose local jurisdiction the wrong has been committed
(B) can be instituted in the court within whose local jurisdiction the defendant resides
(C) Either (A) or (B) at the option of the plaintiff
(D) can be instituted anywhere in India.
Answer
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10 (c) General power of High Court and District Court for transfer and withdrawal of any suit appeal or other proceedings. [7.5]
Answer
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10 (d) Place of institution of suit where local limits of jurisdiction of courts are uncertain. [7.5]
Answer
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8. (b) ‘A’ residing in Delhi, publishes a defamatory statement about ‘B’ in Kolkata. ‘B’ is resident of Patna. Determine the forum for institution of suit in this case giving relevant provisions of CPC. 10
Answer
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8. (a) Explain the relevant provision for recording the satisfaction of a decree as mentioned in the C.P.C. 10
Answer
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13. In a suit, a plaintiff seeks a money decree for breach of contract and damages. The Court holds that the plaintiff is entitled to money decree but the claim for damages is frivolous and vexatious. The Court decides to impose cost on plaintiff for claiming frivolous and vexatious damages. Draw an order in this regard by imagining relevant fact at your own. [15]
Answer
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36. Private alienation of property by the judgement-debtor after attachment under Section 64(1) of C.P.C. is:
A. Valid
B. Voidable
C. Void
D. Irregular
Answer
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13. Private alienation of property by the judgment-debtor after attachment under Section 64(1) of CPC is :
(a) Valid
(b) Voidable
(c) Void
(d) Irregular
Answer
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51. A Garnishee order is an order-
(A) prohibiting the judgment debtor’s debtor from making any payment to the judgment debtor
(B) directing the decree holder to take the payment from the judgment debtor’s debtor
(C) Both (A) and (B)
(D) None of the above.
Answer
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8. (b) A decree for recovery of arrears of rent, ejectment etc. is passed against a tenant. When the said decree is put in execution, the judgment debtor comes out with the case that after the passing of the decree, a fresh tenancy was created by the landlord by executing a lease deed and as such he is not liable for eviction. The landlord decree holder denies the execution of any such lease deed. Discuss the tenability of the respective pleas. 10
Answer
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72. The Supreme Court of India has laid down the law relating to Alternative Dispute Resolution process and section 89 of the Code of Civil Procedure in the case of :
(a) Dinesh Kumar v: Yusuf Ali
(b) Afcon Infrastracture Ltd. v. Cherian Varkey Construction Co.
(c) Bimlesh v. New India Assurance Co.
(d) Standard Chartered Bank v. V Noble Kumar
Answer
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Q 11. Write a detailed note relating to special proceedings for settlement of dispute outside the court. Also provide the details related to rules, if any, made by the Allahabad High Court in relation to alternate redressal of dispute in the state of Uttar Pradesh. [20]
Answer
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50. The Supreme Court of India has laid down the law relating to Alternative Dispute Resolution process and Section 89 of the Code of Civil Procedure in the case of:
A. Dinesh Kumar Versus Yusuf Ali
B. Afcon Infrastructure Ltd. Versus Cherian Varkey Construction Co.
C. Bimlesh Versus New India Assurance Co.
D. Standard Chartered Band Versus V. Noble Kumar
Answer
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9. (a) Explain the ambit and scope of First Appeal and Second Appeal, as provided in the Code of Civil Procedure and the difference, if any, in between the above two, by referring the relevant statutory provisions. 10
An appellate Court while deciding an appeal can grant a decree/relief, in favour of non-appellant, and if so, when ?
Answer
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100. Second Appeal. -
Read Bare Act...100. Second Appeal. -
(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.
4(b) Reference to High Court under Part VIII of the code of civil Procedure,1908.
Answer
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10. (a) Does an application of review lie in a case where the judgment is rendered erroneous by reason of statutory amendments ? Explain by giving reasons. 10
Answer
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10. (a) Explain the doctrine of restitution as contained in Code of Civil Procedure. Is it applicable to proceedings other than suit ? 10
Answer
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7. Mis-joinder of parties and causes of action in a suit is called :
(a) Multifariousness in a suit
(b) Double mis-joinder
(c) Both (a) and (b)
(d) Only (b)
Answer
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47. ‘A’ lets a premises to ‘B’ at a yearly rent of Rs. 50,000/-. The rent for whole of the years 2014, 2015, 2016 and 2017 is due and unpaid. ‘A’ sues ‘B’ in 2018 only for the rent due for 2014 and 2015:
A. ‘A’ by separate suit afterwards may sue ‘B’ for the rent due for 2016 and 2017
B. ‘A’ by separate suit cannot afterwards sue ‘B’ for the rent due for 2016 and 2017
C. ‘A’ by having leave from the Court sue ‘B’ afterwards for the rent due for 2016 and 2017
D. ‘A’ by consent of ‘B’ may sue ‘B’ afterwards for the rent due for 2016 and 2017
Answer
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18. A lets a premises to B at a yearly rent of Rs. 50,000/-. The rent for whole of the years 2014, 2015, 2016 and 2017 is due and unpaid. A sues B in 2018 only for the rent due for 2014 and 2015.
(a) A by separate suit afterwards may sue B for the rent due for 2016 and 2017
(b) A by separate suit cannot afterwards sue B for the rent due for 2016 and 2017
(c) A by having leave from the Court sue B afterwards for the rent due for 2016 and 2017
(d) A by consent of B may sue B afterwards for the rent due for 2016 and 2017
Answer
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78. Ram was dispossessed from his house by Shyam for a year. Ram files a suit for possession against Shyam but did not included claim for damages in it. For claiming damages Ram :
(a) Could file a new suit
(b) Could not file a new suit
(c) Could file a new suit with the permission of the court
(d) None of the above.
Answer
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89. All matters in dispute between the parties relating to the same transaction should be disposed of in the same suit. This is laid down in :
(a) Order II Rule 1
(b) Order II Rule 2
(c) Order II Rule 3
(d) Order II Rule 4
Answer
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10. (b) The plaintiffs filed a suit to recover possession of land belonging to them from defendants who were annual tenants. The Court declined to give a decree for possession on the ground that proper notice to quit had not been given and ordered the defendants to pay damages for use and occupation of the land for three years prior to the suit. The plaintiffs brought a fresh suit to recover possession of the lands with mesne profits from the defendants. What are the defences open to the defendants? 10
Answer
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21. Dasti summons for service on the defendant can be given to the plaintiff under:
A. Order V Rule 9A, CPC
B. Order V Rule 9, CPC
C. Order IV Rule 7, CPC
D. Order IV Rule 6, CPC
Answer
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12. Dasti summons for service on the defendant can be given to the plaintiff under-
(A) Order V Rule 9A C.P.C.
(B) Order V Rule 9 C.P.C.
(C) Order IV Rule 7 C.P.C.
(D) Order VI Rule 6 C.P.C.
Answer
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Q.4. Write short note on following:
(a) Substituted service
Answer
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Amendment of Pleadings
Read Bare Act...Amendment of Pleadings
28. Whether the following proposition is legally correct or not?
“The principle so far as it relates to the amendment of plaint is equally applicable to the amendment of written statement. By way of amendment in plaint a time barred plea cannot be allowed to be raised so also in the case of written statement.”
(A) Correct
(B) Incorrect
(C) Partially correct
(D) None of the above is applicable
Answer
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8. (a) In a suit for prohibitory injunction the defendant filed written statement contending that he had purchased the disputed property from the father of plaintiff two years prior to institution of the suit 10
After a period of .6 years from the date of the institution of the suit and after the conclusion of the evidence of defendant, while the case was posted for hearing of argument, an amendment application was moved by the plaintiff stating that his father had not executed the sale deed in favour of the defendant and the alleged sale deed had been executed by some fake person and as such was not valid and binding. He prayed for the relief of cancellation of the sale deed.
The defendant objected on the ground that the limitation for 1 cancellation of the sale deed had already expired. The plaintiff had the knowledge of the sale deed within the prescribed period of 1 limitation, through his written statement, therefore the proposed j amendment is barred by time and the rights of the defendant have U already matured over the disputed property.
Pass an order deciding the amendment application and objection on merits.
Answer
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Plaint
Read Bare Act...Order VII PLAINT
1. Particulars to be contained in plaint. - The plaint shall contain the following particulars:-
(a) the name of the Court in which the suit is brought ;
(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and
(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits.
2. In money suits. - Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed:
But where the plaintiff sue for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, [or for movables in the possession of the defendant, or for debts of which the value he cannot, after the exercise of reasonable diligence, estimate, the plaint shall state approximately the amount or value sued for].
3. Where the subject-matter of the suit is immovable property. - Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.
4. When plaintiff sues as representative. - Where the plaintiff sues in a representative character the plaint shall show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps (if any) necessary to enable him to institute a suit concerning it.
5. Defendant's interest and liability to be shown. - The plaint shall show that the defendant is or claims to be interested in subject-matter, and that he is liable to be called upon to answer the plaintiff's demand.
6. Grounds of exemption from limitation law. - Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed :
[Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint.]
7. Relief to be specifically stated. - Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.
8. Relief founded on separate ground. - Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and district grounds, they shall be stated as far as may be separately and distinctly.
9. Procedure on admitting plaint.- Where the Court orders that the summons be served on the defendants in the manner provided in rule 9 of Order V, it will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within seven days from the date of such order alongwith requisite fee for service of summons on the defendants.
10. Return of plaint.- (1) Subject to the provisions of rule 10A, the plaint shall] at any state of the suit be returned to be presented to the Court in which the suit should have been instituted.
Explanation.\-For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.
(2) Procedure on returning plaint.-On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.
10A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return. -(1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing, so, intimate its decision to the plaintiff.
(2) Where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application to the Court-(a) specifying the Court in which he proposes to present the plaint after its return,(b) praying that the Court may fix a date for the appearance of the parties in the said Court, and(c) requesting that the notice of the date so fixed may be given to him and to the defendant.
(3) Where an application is made by the plaintiff under sub-rule (2), the Court shall, before returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit,-(a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and(b) give to the plaintiff and to the defendant notice of such date for appearance.
(4) Where the notice of the date for appearance is given under sub-rule (3),-(a) it shall not be necessary for the Court in which the plaint is presented after its return, to serve the defendant with a summons for appearance in the suit, unless that Court, for reasons to be recorded otherwise directs, and(b) the said notice shall be deemed to be a summons for the appearance of the defendant in the Court in which the plaint is presented on the date so fixed by the Court by which the plaint was returned.
(5) Where the application made by the plaintiff under sub-rule (2) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint.
10B. Power of appellate Court to transfer suit to the proper Court. - (1) Where, on an appeal against an order for the return of plaint, the Court hearing the appeal confirms such order, the Court of appeal may, if the plaintiff by an application so desires, while returning the plaint, direct plaintiff to file the plaint, subject to the provisions of the Limitation Act, 1963 (36 of 1963), in the Court in which the suit should have been instituted,(whether such Court is within or without the State in which the Court hearing the appeal is situated), and fit a date for the appearance of the parties in the Court in which the plaint is directed to be filed and when the date is so fixed it shall not be necessary for the Court in which the plaint is filed to serve the defendant with the summons for appearance in the suit, unless that Court in which the plaint is filed, for reasons to be recorded, otherwise directs.
(2) The direction made by the Court under sub-rule (1), shall be without any prejudice to the rights of the parties to question the jurisdiction of the Court, in which the plaint is filed, to try the suit.]
11. Rejection of plaint. - The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law :
[(e)where it is not filed in duplicate;]
[(f) where the plaintiff fails to comply with the provisions of rule 9:]
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper , as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
12. Procedure on rejecting plaint. - Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order.
13. Where rejection of plaint does not preclude presentation of fresh plaint. - The rejection of the plaint on any of the grounds herein before mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.
Documents Relied On In Plaint R. 14-18
14. Production of document on which plaintiff sues. - (1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is.
[(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.]
[(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.]
15. Statement in case of documents not in plaintiff's possession or power. -[Omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), section 17 (w.e.f. 1.7.2002).]
16. Suits on lost negotiable instruments. - Where the suit is founded upon a negotiable instrument, and it is proved that the instrument is lost, and an indemnity is given by the plaintiff, to the satisfaction of the Court, against the claims of any other person upon such instrument, the Court may pass such decree as it would have passed if the plaintiff had produced the instrument in Court when the plaint was presented, and had at the same time delivered a copy of the instrument to be filed with the plaint.
17. Production of shop-book. - (1) Save in so far as is otherwise provided by the Bankers' Books Evidence Act, 1891 (18 of 1891), where the document on which the plaintiff sues is an entry in shop-book or other account in his possession or power the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies.
(2) Original entry to be marked and returned.-The Court, or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification, and, after examining and comparing the copy with the original, shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed.
18. Inadmissibility of document not produced when plaint filed. - [Omitted by the Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002), section 8 (w.e.f. 1.7.2002).]
R.19-25 [Allahabad]
deals with address
29. In which of the following case, the plaint will be ordered to be returned for presentation to the proper court:
(A) The plaintiff frames his suit in a manner not warranted by the facts and goes for his relief to a court which cannot grant him
(B) The plaintiff chooses a wrong court in respect of territorial limits
(C) The plaintiff chooses a wrong court in respect of pecuniary limits
(D) Both (B) and (C)
Answer
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10. A has preferred a civil suit before the Court of Civil Judge, challenging an order dismissing him from service as a consequence to disciplinary action. An application is preferred by the employer B as per provisions of order VII Rule 11 Code of Civil Procedure, 1908 for rejection of plaint on the count that the same is barred by law. In the light of above, draw:
(a) An application as per provisions of the order VII rule 11 Code of Civil Procedure, 1908 on behalf of B. [10]
(b) An order accepting the application aforesaid. [10]
Answer
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12. A has preferred a civil suit before the Court of Civil Judge, challenging an order dismissing him from service as a consequence to disciplinary action. An application is preferred by the employer B as per provisions of order VII Rule 11 Code of Civil Procedure, 1908 for rejection of plaint on the count that the same is barred by law. In the light of above, draw:
(a) An application as per provisions of the order VII rule 11 Code of Civil Procedure, 1908 on behalf of B. [5]
(b) An order accepting the application aforesaid. [5]
Answer
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12. Frame an application under Order VII, Rule 11 of the Civil Procedure Code on possible grounds for rejection of a plaint. 10
Answer
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9. (b) A plaint is rejected by the Court on the ground that it does not disclose any cause of action. Can the plaintiff present a fresh plaint on the same cause of action ? Give reasons and also refer relevant provisions. 10
Answer
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16. In a written statement, a defendant can claim :
(a) Set-off
(b) Counter-claim
(c) Both set-off and counter-claim
(d) Either (a) or (b)
Answer
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16 . (b) Write short notes on any four of the following : 5
(iv) Setoff
Answer
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10. (a) What is counter claim? Explain the difference between “counter claim” and “set of’. Can a counter claim be filed—
(i) When the right to file written Statement has been closed? 5
(ii) after the close of evidence? 5
Answer
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9. Explain what is a counter-claim with reference to Civil Procedure Code? Whether it can be filed at any stage of suit or appeal also Can it be directed against a co-defendant? 15
Answer
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10. What is the time limit for filing a written statement by a defendant? Whether the time provided under Order VIII, Rule 1 of Civil Procedure Code can be extended by Court? Explain with reference to relevant cases law? 15
Answer
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12. In the Code of Civil Procedure, an ex parte decree can be set aside:
(a) Under Order IX Rule 5
(b) Under Order IX Rule 10
(c) Under Order IX Rule 13
(d) Under order IX Rule 11
Answer
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49. Remedies available against an ex-parte decree include-
(A) appeal
(B) review
(C) application for setting aside the decree
(D) All the above.
Answer
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15 The suit for specific performance of contract filed by ‘A’ decreed (ex-parte against ‘B’.) On getting information of the ex-parte decree, ‘B’ moved an application for setting aside the ex-parte decree. Subsequently, pending application under Order IX, Rule 13 of the Code of Civil Procedure, he also challenged the ex-parte decree by filing an appeal against the ex-parte decree, with an application for condonation of delay under Section 5 of Indian Limitation Act, claiming that the time of alleged execution of agreement for sale, he was minor and as the agreement for sale is null and void so also the decree for specific performance of contract. The application under Order IX, Rule 13 of the Code of Civil Procedure was dismissed by the trial court, in view of explanation inserted by Act No. 104 of 1976 w.e.f. 1-2-1977 on account of filing of appeal. Subsequently, the appeal filed by ‘B’ was dismissed as barred by time.
Whether the trial court was right in dismissing the application under Order IX, Rule 13 of the Code of Civil Procedure on the ground of filing of appeal? Answer with reasons. [10]
Answer
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1. (b) ‘A’ claiming that ‘B’ had agreed to sell his agricultural land in his favour for Rs. 5,00,000/- through registered agreement for sale dated 3-2-2014, filed civil suit for specific performance of contract. ‘B’ filed written statement denying the execution of agreement for sale and claimed that it has been obtained by fraud. Then ‘B’ filed civil suit for cancellation of agreement for sale in respect of his agricultural land on which annual land revenue of Rs. 130.50 was payable. The suit filed by ‘B’ was decreed ex-parte. ‘A’ on getting knowledge of the decree for cancellation of agreement for sale, moved an application under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree and also moved an application before the Civil Judge, Senior Division for staying further proceedings of civil suit for specific performance of contract filed by him till disposal of his application under Order IX, Rule 13 of the Code of Civil Procedure.
Whether the further proceedings of civil suit for specific performance of contract, which is a previously instituted suit can be stayed, till disposal of application under Order IX, Rule 13 of the Code of Civil Procedure relating to subsequently filed suit? Answer with reasons. 15
Answer
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1. (c). The suit for specific performance of contract filed by ‘A’ decreed (ex-parte against ‘B’.) On getting information of the ex-parte decree, ‘B’ moved an application for setting aside the ex-parte decree. Subsequently, pending application under Order IX, Rule 13 of the Code of Civil Procedure, he also challenged the ex-parte decree by filing an appeal against the ex-parte decree, with an application for condonation of delay under Section 5 of Indian Limitation Act, claiming that the time of alleged execution of agreement for sale, he was minor and as the agreement for sale is null and void so also the decree for specific performance of contract. The application under Order IX, Rule 13 of the Code of Civil Procedure was dismissed by the trial court, in view of explanation inserted by Act No. 104 of 1976 w.e.f. 1-2-1977 on account of filing of appeal. Subsequently, the appeal filed by ‘B’ was dismissed as barred by time.
Whether the trial court was right in dismissing the application under Order IX, Rule 13 of the Code of Civil Procedure on the ground of filing of appeal? Answer with reasons. 10
Answer
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8. (a) When a document is impounded by a Court, what are the further
steps to be taken in this matter ? 10
Answer
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Q.1. (a) Prabhat Ranjan, son of Ram Ranjan, resident of village Jhoonsi, District Prayagraj (U.P) , owner of the land in dispute, passed away in 1957, after the coming into force of the Hindu Succession Act, 1956. Before his demise, Prabhat Ranjan executed a registered will deed dated 08.06.1956 bequeathing a life a sale-deed, dated 07.06.1974 alienating the land in dispute, in favour of Shri Chandra Mohan.
Smt. Kamla filed a suit, pleading that the will dated 08.06.1956 confers a limited estate upon Smt. Deepa, she had no right to alienate the land in dispute and prayed for a decree of joint possession.
The defender Shri Chandra Mohan filed a written statement denying the will and pleaded that Smt. Deepa inherited the property in disputes, as a natural heir she is an absolute owner. In alternative, defendant Chandra Mohan also pleaded that even if the will is proved, Smt. Deepa, widow of Prabhat Ranjan has become absolute owner and is, therefore, competent to alienate the land in dispute, He also asserted his rights as a bonafide purchaser, for valuable consideration, without notice of any defect in the title of his vendor and prayed that the suit may be dismissed.
On the basis of the pleadings above, frame all necessary issues for adjudication.
Answer
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4. A suit for specific performance is filed which is slightly beyond the period of limitation as prescribed, and relates to an agricultural holding the title thereof is disputed. Frame the possible and relevant issues under the provisions of the Civil Procedure Code. 10
Answer
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9. (b) In a suit by ‘A’ against ‘B’ several issues are framed, onus of some of which is on ‘B’ the defendant. ‘A’ after examining his witnesses closes his evidence. Thereafter, ‘B’ leads evidence. After the conclusion of the evidence of ‘B’. ‘A’ applies for leading evidence in rebuttal and which is objected to by ‘B’. Whether ‘A’ should be allowed to lead rebuttal evidence ? 10
Answer
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96. The Commissioner appointed under the provisions of Order XVIII of the Code of Civil Procedure for the purposes of recording of evidence cannot :
(a) re-examine a witness
(b) decide objections raised during the recording of evidence
(c) None of the above
(d) Both (a) and (b)
Answer
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97. A decree for restitution of conjugal rights may be enforced :
(a) by attachment of property
(b) by injunction
(c) by detention in civil prison
(d) none of above
Answer
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77. A decree for restitution of conjugal rights may be enforced :
(a) by attachment of property
(b) by injunction
(c) by detention in civil prison
(d) none of above
Answer
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52. Preliminary decree can be passed in a suit-
(A) for partition
(B) of partnership
(C) for possession and mesne profits
(D) All the above.
Answer
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26. In execution of a decree a movable property is auction sold by the executing court. The auction purchaser deposits the entire auction price then and there even before expiry of 30 days and takes the delivery of the auctioned property. An objection complaining that the auction was conducted with material irregularity is filed within 30 days from the date of auction. State which one of the following is legally correct?
(A) Objection is maintainable as it has been filed within 30 days of the auction
(B) Auction sale is vitiated as the auction property has been delivered without waiting for its confirmation within 30 days of auction
(C) No confirmation of sale is required in the present case
(D) None of the above is correct
Answer
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12. Discuss the provision relating to the property liable to attachment and sale in execution of decree. [15]
Answer
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10 (b) Execution of decree before ascertainment of costs. [5]
Answer
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13. Explain with the help of the provisions of the Civil Procedure Code as to how a decree can be executed and whether a preliminary decree can be executed or not; also explain, if the execution is disobeyed, then what powers are available with the court to enforce execution? 10
Answer
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8. (b) How will the following decrees be executed ? 10
(i) A decree for specific performance of immovable property.
(ii) A decree for restitution of conjugal rights.
(iii) A decree for injunction.
(iv) A cross-decree for the payment of two sums.
Answer
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35. A pleader has a duty to inform the court about the death of parties under-
(A) Order 22 Rule 1 C.P.C.
(B) Order 22 Rule 4 C.RC.
(C) Order 22 Rule 8 C.P.C.
(D) Order 22 Rule 10A C.P.C.
Answer
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27. In a miscellaneous appeal arising out of a pending suit defendant appealant dies and an application for substitution is filed and allowed. Appeal is decided three years thereafter. Subsequently, when the suit is taken up, an objection that the suit has abated as no application to substitute the heirs of the deceased was filed therein within the prescribed period, is raised from the side of the defendant. Suggest the stand legally open to such plaintiff?
(A) Plaintiff may apply for substitution with an application for condonation of delay
(B) Information of death of defendant was not given to the trial court, therefore, shelter of Order 22 Rule 10 CPC may be invoked
(C) Record of the trial court was in appeal and thus, the plaintiff was prevented by sufficient cause in not filing the substitution application earlier
(D) The substitution allowed in miscellaneous appeal would ensure in the suit also and application for substitution is not required as the heirs are on the record
Answer
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82. After withdrawal of the suit, a plaintiff :
(a) can institute a fresh suit in respect of the same subject-matter
(b) can institute a fresh suit in respect of the same subject-matter only with the leave of the court
(c) can institute a fresh suit in respect of the same subject-matter, without
liberty of the court.
(d) cannot institute a fresh suit in respect of the same subject-matter, unless liberty is given at the time of withdrawal of the suit.
Answer
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27. Parties to the suit can compromise in a suit
(A) Under order XXIII, Rule 3A of CPC
(B) Under order XXIII, Rule 3 of CPC
(C) Under order XXIII, Rule 1 of CPC
(D) Under order XXIII, Rule 4 of CPC
Answer
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Q.3. (1). What is the scope of compromise in Civil suits? Whether such property could be included in the compromise, which is not subject matter of the suit? What extent Principal of Estoppel applies in case of compromise? Describe?
Answer
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53. Order XXVI, Rule 4A C.P.C., empowers the court to issue commission in a suit for examination of a person-
(A) resident within the local limits of its jurisdiction ‘
(B) resident beyond the local limits of its jurisdiction
(C) who is about to leave the local limits of its jurisdiction
(D) Both (A) and (B).
Answer
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10 (a) Power of Court to issue commissions [5]
Answer
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51. Under order XXXII Rule 9 of the Code of Civil Procedure, a next friend of a minor can be removed:
A. If he ceases to reside in India during the pendency of the suit
B. Where his interest becomes adverse to that of the minor
C. Where he does not do his duty
D. For any of the above reasons
Answer
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73. Under Order XXXII Rule 9 of the Code of Civil Procedure, a next friend of a minor can be removed:
(a) if he ceases to reside in India during the pendency of the suit
(b) where his interest becomes adverse to that of the minor
(c) where he does not do his duty
(d) for any of the above reasons
Answer
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37. A decree passed in a suit under Order XXXVII of C.P.C. without applying for leave defend may be set aside under:
A. Order IX, Rule 13 of C.P.C.
B. Order XXXVII, Rule 4 of C.P.C.
C. Order XXXVII, Rule 7 of C.P.C.
D. Either A or B or C
Answer
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83. A decree passed in a suit under Order 37 of CPC without applying for
leave to defend may be set aside under :
(a) Order 9 Rule 13 of CPC
(b) Older 37 Rule 4 of CPC
(c) Order 37 Rule 7 of CPC
(d) Either (a) or (b) or (c)
Answer
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11. X has given a sum of Rs 50000/- to Y as loan through a cheque after executing a sale deed dated 01.01.2018 in that regard. As per the conditions of the deed, the loan amount was to be returned by Y to X in one installment in the month of January 2019. Y fail to repay the same amount in the month of January 2019. X desires to institute a summary suit for recovery of money advanced to Y.
Draw a plaint on behalf of X to institute a suit as per provisions of the order XXVII of the Civil Procedure Code, 1908. [15]
Answer
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81. Under Order 39 Rule 4 of CPC an order for injunction may be discharged, varied or set aside by the court :
(a) On the application of the plaintiff
(b) On the application of the defendant
(c) On the application of any party
(d) Court on its own motion
Answer
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11. In a suit pertaining to dispute of a title over immovable property, the court can proceed to appoint a Receiver to take care of the property pendente lite. What are the relevant provisions under the C.P.C. and the contingencies in which such an order can be passed. Explain with the help of case law. 10
Answer
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18. When can a court of appeal deny additional evidence under Order XLI, Rule 27, C.P.C.? Explain with reference to case law on the subject. 10
Answer
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Order XLIII
1. Appeal from orders.--
Case Law
Order of remand (in appealable cases) : Jagannathan v. Raju Sigamani (2012) 5 SCC 540
In Narayanan (2004) 4 SCC 26 held that appeal under order 43 rule 1(u) can only be heard on grounds a second appeal can be heard uder section 100 CPC
1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of section 104, namely:— (a) an order under rule 10 of Order VII returning a plaint to be presented to the proper court except where the procedure specified in rule 10A of Order VII has been followed;
(b) Omitted by Act 104 of 1976, w.e.f. 1-2-1977
( c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a Suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an Order to set aside a decree passed e parte;
(e) [ *]
(f) an order under rule 21 of Order XI;
(g) [ *]
(h) [ *]
(i) an order under rule 34 of order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
(ja) an order rejecting an application made under sub-rule (1) of rule 106 of order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that order is appealable;
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(I) an order under rule 10 of Order XXII giving or refusing to give leave;
(m) [ *]
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(na) an order under rule 5 or rule 7 or Order XXXIII rejecting an application for permission to sue as an indigent person;
(o) [ *]
(p) order in interpleader suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII;
(r) an order under Rule 1, Rule 2, Rule 2A Rule 4 or Rule 10 of Order XXXIX;
(s) an order under Rule 1 or Rule 4 of Order XL;
(t) an order of refusal under Rule 19 of Order XLI to re-admit, or under Rule 21 of Order XLI to re-hear, an appeal;
(u) an order under Rule 23 or Rule 23A or Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
(v) Omitted by Act 104 of 1976, w.e.f. 1-2-1977
(w) an order under Rule 4 of Order XLVII granting an application for review.
(3 Judge Bench) Shyam Sunder Sharma v. Pannna Lal Jaiswal & ors., AIR 2005 SC 226
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did not approve of the earlier view taken in the case of Ratan Singh (supra) and it held that an order passed on an application under section 5 of the Act 1963 rejecting the same is nevertheless an order passed in appeal
Whether the remedy against an order passed under section 5 Limitation Act rejecting the condonation of delay is by way of a petition under Article 227 of the Constitution of India or by way of a second appeal under section 100 C.P.C ?
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Court vide judgment dated 18.12.2019 passed in Writ Petition No. 25879 (MS) of 2019, Ram Prasad and ors. in the following terms :
"Hon'ble Rajan Roy,J.
By means of this petition under Article 227 of the Constitution of India the petitioner has challenged an order dated 24.4.2019 passed by the Additional District Judge (Court No.4)/Special Judge (E.C. Act), Sitapur, dismissing the application of the petitioner under section 5 of the Limitation Act 1963 (hereinafter referred as 'Act 1963') which was filed alongwith the appeal filed by the petitioners against the judgment and decree passed in O.S. No. 141 of 1999 allowing the suit of the private opposite parties herein. The application under section 5 was registered as Civil Misc. Case No.91 of 2014 and the same has been dismissed by the Appellate Court.
A question arose during the course of hearing as to the maintainability of this petition and whether a second appeal under section 100 C.P.C. would not lie against the impugned judgment ? In response, the learned counsel for the petitioner submitted that the order which has been impugned herein does not fall within the definition of decree under section 2(2) of the Code of Civil Procedure Code 1908, as it does not conclusively determine the rights of the parties with regard to all or any of the matters in controversy in the appeal arising out of the suit, instead it only rejects the application under section 5 of the Limitation Act 1963 which was registered as a separate miscellaneous case. As no decree of such an order is prepared, a second appeal under section 100 C.P.C. will not lie as it lies against appellate decrees.
Learned counsel for the petitioner relied upon a decision of the Supreme Court in the case of Ratan Singh v. Vijai Singh and others, AIR 2001 SC 279 in support of his contention.
At first blush the submission of the petitioners' counsel appeared to be quite attractive, especially in view of the law laid down by the Supreme Court in the case of Ratan Singh (supra) wherein, the provision contained in section 2(2), C.P.C., defining a decree, had been considered and it was held that an order dismissing an application under section 5 of the Act 1963 would not be a decree and that the order rejecting the memorandum of appeal consequent to rejection of the application under section 5 of the Act 1963 was merely an incidental order. In the said decision the Supreme Court approved the Full Bench decision of the Calcutta High Court in Mamooda Khateen & ors. V. Benian Bibi & ors., AIR 1976 Calcutta 415. The Supreme Court approved the reasoning of the Full Bench that when an appeal is barred by limitation, it cannot be admitted at all until the application under section 5 of the Act 1963 is allowed and until then the appeal, even if filed, will remain in limbo. If the application is dismissed, the appeal becomes otiose. Approving the said view, the Supreme Court disapproved the contrary view taken by other High Courts. The Privy Council decision in Nagendra Nath Dey & anr. V. Suresh Chandra Dey & anr., AIR 1932 PC 165, was also considered in Ratan Singh (supra), but it was observed that the said decision does not help in the context of the case before it, as, it related to the scope and interpretation of Article 182 of the old Limitation Act and in this regard it noticed serious departure made by the Parliament in the existing Limitation Act.
However, this court finds that in a subsequent decision in the case of Shyam Sunder Sharma v. Pannna Lal Jaiswal & ors., AIR 2005 SC 226, a three Judge Bench of the Supreme Court did not approve of the earlier view taken in the case of Ratan Singh (supra) and it held that an order passed on an application under section 5 of the Act 1963 rejecting the same is nevertheless an order passed in appeal. It disapproved the Full Bench decision of the Calcutta High Court in Mamooda Khateen & ors. (supra) and approved another Full Bench decision of the Kerala High Court in Thambi v. Mathew, AIR 1988 Ker. 48, wherein it was held that an appeal presented out of time was nevertheless an appeal in the eyes of law for all purposes and an order dismissing the appeal was a decree and that could be the subject of a second appeal.
It is fruitful to refer to the decision of the Full Bench of the Kerala High Court in Thambi's case (supra) wherein their Lordships noticed the provision of Order XLI Rule 3-A C.P.C. and then held as under :
"It is clear from sub-rule (1) that there is a proper presentation of the appeal filed out of time if it is accompanied by an application to condone delay supported by an affidavit setting forth the grounds for the condonation of delay. Sub-rule (2) requires the application to be finally decided by the court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be. A dismissal of the application for condonation of delay results in the dismissal of the appeal which can only be under R. 11. S. 3 of the Limitation Act also requires an appeal filed after the prescribed period of time to be dismissed subject to the provisions contained in Ss. 4 - 24. Sub-rule (3) of R. 3A does not render an appeal properly presented under sub-rule (1), a proposed appeal. Sub-rule (3) in spite of its language would only mean that no stay of the execution of the decree appealed against shall be granted before the court after hearing the appeal under R. 11 decides to admit the same. An appeal presented out of time is nevertheless an appeal in the eye of law for all practical purposes (vide Musala Annaji Rao v. Boggarapu Papaiah Setty, AIR 1975 Abdg Ora 73). The question, whether an appeal properly presented with a petition to condone the delay can be admitted or not, is at the second stage and to reach that stage the application has to be disposed of finally. Sec. 3 of the Limitation Act also makes it obligatory on the part of the court to dismiss an appeal presented out of time subject, of course, to the provisions of Ss. 4 - 24. In a case, where an appeal has been admitted and then dismissed on a preliminary objection raised at the hearing disclosing the fact that the appeal was filed out of time, is it possible to say that the order dismissing the appeal, though on the ground of limitation, is not a decree? The question is whether a dismissal of the appeal after considering an application to condone the delay should be treated differently. An appeal filed out of time is required to be dealt with by the appellate court under S. 3 of the Limitation Act and an order dismissing the appeal is a decree that can be subject of a second appeal as held by the Full Bench in Haji Hassan Rowther's case (AIR 1972 Ker 56). Sub-rule (4) of R. 11 of O. 41, CPC requires an appellate court, not being the High Court, dismissing an appeal under sub-rule (1) to deliver a judgment and a decree is to be drawn up in accordance with the judgment. It is thus clear that the dismissal of an appeal under O.41, Rule 11 postulates the drawing up of a decree which can be the subject of a further appeal under Order 41, Rule 1 read with O. 42, CPC. Sub-rule(4) of R. 11 does not dispense with the need of a decree when the High Court dismisses an appeal under sub-rule (1). The only exception is that it need not deliver a judgment recording its reasons for dismissing the same. It seems to us clear that R. 3A of O. 41 introduced by the CPC. Amendment Act, 1976 does not in any way affect the principle laid down by the Full Bench in Haji Hassan Rowther's case and by Viswanatha lyer, J. in Kunhiraman's case (1979 KLT 718)."
Their Lordships also took note of a Division Bench of the Allahabad High Court rendered as early as in 1884 in Gulab Rai v. Mangli Lal, ILR (1884) Allahabad 42, wherein it was held as under :
"In the Civil Procedure Code there is no separate provision which allows the appellate court to "reject" a memorandum of appeal on the ground of its being barred by limitation. S. 543 is limited to cases in which the memorandum of appeal is not drawn up in the manner prescribed by the Code, and it is only by applying S. 54(c), mutatis mutandis, (as provided by the last part of S. 582), to appeals that the Code can be understood to make provision for rejection of appeals as barred by limitation. However, S. 4 of the Limitation Act clearly lays down that every "appeal presented after the period of limitation prescribed therefor shall be dismissed." It is, therefore, clear that the order of the District Judge in this case must be taken to be one which falls under the definition of "decree" within the meaning of S. 2 of the Code, as the order, so far as the Judge was concerned, disposed of the appeal."
The Full Bench also noticed decision of the Supreme Court in Mela Ram & sons (supra) v. the Commissioner of Income Tax, Punjab, (1956) 29 ITR 607 (SC), wherein inter alia the Supreme Court affirmed the decision of the Madras High Court in Commissioner of Income v. Shahzadi Begum AIR 1952 Madras 232, which had held that if the appeal is dismissed as incompetent or is rejected as it was filed out of time and no sufficient cause was established, it results in an affirmation of the order appealed against.
The Supreme Court in Mela Ram (supra) also affirmed another decision of the Calcutta High Court reported in AIR1954 Cal. 468, in which it had been held that an appellate order may not, directly and by itself, confirm or reduce or enhance or annul an assessment and may yet dispose of the appeal. If it does so, it is immaterial whether the ground is a finding that the appeal is barred by Limitation or a finding that the case is not fit one for extension of time or both.
Referring to the aforesaid cases the Supreme Court in Mela Ram (supra) concluded, as observed by the Full Bench, that there is, thus, abundant authority for the position that section 31 should be liberally construed so as to include not only orders passed on a consideration of the merits of the assessment, but also orders which dispose of the appeal on preliminary issues such as limitation and the like.
The Full Bench also noticed the decision of the Supreme Court in the case of Rani Chaudhari v. Lt. Col. Suraj Jit Choudhary, (1982) 2 SCC 596, which had been followed in Mela Ram's case (supra) wherein it had been held as under:
"In the present case, the appeal was dismissed as barred by limitation. That it was an appeal even though barred by time is clear from Mela Ram & Sons v. C.I.T. (AIR 1956 SC 367) where Venkatarama Ayyar J., speaking for the Court, after referring to Nagendra Nath Dey v. Suresh Chandra Dey, (AIR 1932 PC 165), Raja Kulkarni v. State of Bombay (AIR 1954 SC 73) and Promotho Nath Roy v. W. A. Lee (AIR 1921 Cal 415) held that "an appeal presented out of time is an appeal, and an order dismissing it as time-barred is one passed in appeal". There can be no dispute then that in law what the respondent did was to file an appeal and that the order dismissing it as time-barred was one disposing of the appeal."
The Full Bench of the Kerala High Court went on to observe that disposal of an appeal filed out of time can only be by way of dismissal as provided for in section 3 of the Limitation Act. An appeal registered under Rule 9 of Order LXI C.P.C. is to be disposed off according to law and a dismissal of the appeal for the reason of delay in its presentation after the dismissal of an application for condonation of delay is in substance and effect a confirmation of the decree appealed against. This Full Bench decision was affirmed by the Supreme Court in Shyam Sunder Sharma's case(supra).
With regard to its earlier decision in Ratan Singh's (supra) the Supreme Court in Shyam Sunder Sharma's case (supra) held that it was in conflict with the ratio of the decision in the case of Mela Ram (supra) and the decision in Rani Chaudhary v. Lieutenant Col. Suraj Jeet Chaudhary, 1982 (2) SCC 586, as also, the Privy Council's decision in Nagendra Nath Dey (supra), which, though referred, was not applied on the ground that it was based on Article 182 of the Old Limitation Act 1908. The Supreme Court was of the view that the decision in Sheodon Singh v. Dariao Kunwar, AIR 1966 SC 1332 wherein also it was held that dismissal of an appeal from a decree on the ground that the appeal was barred by limitation, was a decision in the appeal and that such dismissal, when it confirms the decision of the Trial Court on the merits, itself amounts to the appeal being heard and finally decided on the merits, whatever may be the ground for dismissal of the appeal, was also not noticed in Ratan Singh's case (supra) and latter was in conflict with the said decision. Thus, the earlier decision in Ratan Singh's case (supra) was impliedly overruled.
Now in view of the Three Judge Bench decision of the Supreme Court in Shyam Sunder Sharma's case (supra) two things are clear, one, that an order dismissing an application under section 5 of the Limitation Act 1963 for extending limitation for filing the appeal is also an order passed in appeal and the Full Bench of the Calcutta High Court when it held that an order rejecting a time-barred memorandum of appeal consequent upon refusal to condone the delay in filing that appeal was neither a decree nor appealable, did not lay down a correct law. In this view of the matter the irresistible conclusion is that a second appeal would lie against such an order as has been impugned in this writ petition as referred hereinabove.
Similar view has also been expressed by two coordinate Benches of this Court in the case of Smt. Premwati & anr. V. Smt. Munni Devi, (2009) 106 RD 697 and Rajendra Pal Singh v. Addl. District Judge, Ghaziabad 2016 (2) ADJ 699. In the latter case a specific plea was raised that the order impugned therein merely dismissed the section 5 application but it nowhere stated that the appeal would also stand dismissed, therefore, the argument advanced was that the petition under Article 227 of the Constitution of India would be maintainable against such an order, but, this argument was repelled in view of the authoritative pronouncements discussed in the said judgment, as have also been referred hereinabove.
There is another three Judges Bench decision of the Supreme Court in the case of S. Kalawati v. Durga Prasad & anr., AIR 1975 SC 1272, wherein, a similar issue as to whether an order passed not on merits of the appeal but otherwise such as on an application for condonation of delay in filing the appeal, non-prosecution or for any other reason, would amount to an order passed in appeal was considered, and it was held that unless the Court had applied its mind to the case and after consideration affirmed it the order cannot be said to be one of affirmance and after noticing the decision of the Privy Council in Abdul Mazid v. Jawahar Lal, ILR 1904 (36) Allahabad 350; decision of the Bombay High Court in Kursondas Dharamse v. Gangabai, ILR 1907 (32) Bombay 108 and the decision in Gulab Chand v. Kudi Lal, AIR 1952 MB the Supreme Court opined that the principle behind majority of decisions is thus to the effect that where an appeal is dismissed on the preliminary ground that it was not competent or for non-prosecution or for any other reason the appeal is not entertained, the decision cannot be said to a "decision, on appeal" nor of affirmance. It is only where the appeal is heard and the judgment delivered thereafter, the judgment can be said to be a judgment of affirmance. However, in view of the later decision by a Three Judges' Bench of the Supreme Court in Shyam Sunder Sharma (supra) the legal position at present is as discussed earlier i.e. such an order is an order passed in the appeal, hence appealable under section 100 C.P.C.
There are, however, certain practical difficulties in filing a second appeal in such circumstances notice of which needs to be taken by the Court. In the State of U.P. when a time-barred first appeal is filed under the Code of Civil Procedure alongwith an application under section 5 of the Limitation Act 1965 for extension of limitation and condonation of delay, it is the application which is registered as a miscellaneous case, as has happened in this case and is decided first. Only when the delay is condoned the appeal is registered. If the delay is not condoned, the application under section 5 is dismissed and the matter is laid to rest. More often then not no consequential orders are passed on the appeal, dismissing it. As the order rejecting the application under section 5 is not treated as one passed on the appeal, but, is treated as an order passed in the miscellaneous case, no decree is prepared in terms of section 2(2) C.P.C. This creates a practical difficulty in filing a second appeal against such an order under section 100 C.P.C. There was consensus at the Bar that against such an order dismissing the application for condonation of delay under section 5 of the Act 1963 without any consequential order for dismissal of the appeal a decree is not prepared by the Civil Courts in this State under the existing provisions of section 2(2) the Code of Civil Procedure 1908.
It is not out of place to refer to Section 3 of the Limitation Act 1963 which reads as under :
"Section 3. Bar of limitation.- (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence."
This provision also mandates dismissal of the appeal itself if it is time-barred and application under section 5 for extension of limitation/condonation of delay is rejected.
In this view of the matter, as, considering the decision of the Supreme Court in Shyam Sunder Sharma (supra), even such orders passed on application under section 5 of the Act 1963, are to be treated as not only disposing the said application but are also to be treated as an order passed in appeal, rejecting it, irrespective of the fact whether or not a consequential order of dismissal is passed in such appeal and a second appeal would lie under section 100 C.P.C. against such an order, a decree of such an order should also be prepared treating it an order passed on the appeal itself, resulting in consequential dismissal of the appeal. This is the ratio of the Full Bench of the Kerala High Court om Thambi's case (supra) wherein the provisions of the C.P.C., Limitation Act and various decisions on this issue have been considered elaborately, which has been approved by the Supreme Court in Shyam Sunder's case (supra). In fact, it would be in the fitness of things if the Civil Courts while dismissing an application under section 5 of the Act 1963 also pass consequential orders dismissing the appeal itself, as is also mandated under section 3 of the Limitation Act 1963, as, in such a scenario, a decree of such an order would necessarily be prepared in terms of the existing provisions of the C.P.C. and this would facilitate filing of a second appeal or its hearing and decision thereon. It is ordered accordingly.
In view of the above this petition under Article 227 of the Constitution of India is dismissed as not maintainable subject, however, to the observations made hereinabove.
Based on this judgment petitioner can apply for preparation of a decree of the order impugned. In the meantime he can prefer a second appeal relying upon Rule 6-A of Order XX C.P.C. He should annex the original decree of the Trial Court to facilitate valuation etc. of the second appeal.
Let a copy of this judgment be circulated amongst District Judges in the State of U.P., who in turn shall circulate the same amongst other Judges of the District so that the practical difficulty being faced in filing second appeal as pointed out by the Members of the Bar, is removed.
The Registrar General of this Court shall take necessary steps for circulation of this judgment as aforesaid.
.
(Rajan Roy, J.)"
11. Under the Code of Civil Procedure, an appeal shall lie from which of the following orders ?
(a) an order under Order XLI Rule 23
(b) an order under Order XLI Rule 25
(c) an order under Order XLI Rule 17
(d) none of the above
Answer
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80. Which of the following remedies is not available to set aside ex parte decree :
QUESTION CANCELLED
(a) Appeal under Section 96 (2)
(b) Review under Section 114 and Order 47
(c) Application under Order 9, Rule 13
(d) All of the above
PLEASE CHOOSE A
Answer
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9. Write a short note on the followings :— 20
(a) Section 89 of Civil Procedure Code.
(b)The case of Dhulabhai v. State of M.P. and others, A.I.R. 1969 SC 78.
(c) Res-subjudice.
(d) Inter pleader suit.
Answer
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11. What are the salient features of amendments made in the Civil Procedure Code by Amendment Act 46 of 1999 and Amendment Act 22 of 2002 in the following provisions:— 15
(a) Section 115,
(b) Order VI, Rule 17 and
(c) Order XII, Rule 2.
Answer
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