Drafting, Pleading and Conveyancing
Unit – Unit – I: I: Fundamental Rules of Pleadings (Lectures – 06) 06) a. Plaint Structure b. Description of Parties c. Written Statement and affidavit d. Application for setting aside ex-part decree Unit – Unit – II: II: Ordinary suit for Recovery (Lectures – 06) 06) a. Suit under Order XXXVII of CPC and the difference between the two suits b. Suit for Permanent Injunction c. Application for temporary injunction Order XXXIX of CPC d. Suit for Specific Performance e. Petition for eviction under the Delhi Rent Control Act Unit – Unit – III: III: General Principles of Criminal Pleadings (Lectures – 06 06) a. Application for bail b. Application under Section 125 Cr.P.C. c. F.I.R. – F.I.R. – under under Section 154 Cr.P.C. Unit – Unit – IV: IV: Model Draft (Lectures – (Lectures – 15) 15) Forms i. Notice to the tenant under section 106 of Transfer of Property Act ii. Notice under section 80 of CPC iii. Reply to notice iv. General Power of Attorney v. Will vi. Agreement to SELL vii. Sale – Sale – deed deed viii. Suit for Dissolution of Partnership ix. Petition for grant of probate / Letters of Administration x. Application for appointment of receiver/Local Commissioner xi. Application for Compromise of Suit xii. Application for Appointment of Guardian xiii. Application to sue as an indigent person under Order 33 CPC xiv. Appeal from original decree under Order 41 of CPC xv. Appeal from orders under order 43 of CPC xvi. Revision Petition xvii. Review Petition xviii. Application under section 5 of Limitation Act xix. Application for execution xx. Application for caveat section 148A of CPC xxi. Writ Petition xxii. Application under section 482 of CPC xxiii. Compounding of offences by way wa y of compromise under section 320(i) Cr.P.C. xxiv. Lease deed xxv. Special Power of Attorney xxvi. Relinquishment Deed
xxvii. Partnership Deed xxviii. Mortgage Deed xxix. Reference to Arbitration and Deed of Arbitration xxx. Deed of gift xxxi. Notice under section 434 of o f the Companies Act xxxii. Notice for Specific Performance of Contract
UNIT-1 Fundamental rules of pleading Plaint Structure
Drafting is an essence of any litigation ‘Legal Drafting’ can be defined as the crystallization cr ystallization and expression of a legal right, privilege, function, duty, or status in a definitive form. IMPORTANCE OF DRAFTING IN LITIGATION: It helps in meeting the client’s goal and carry out the client’s instructions. It helps in maintaining the standard of care which protects the interests of the client. It helps in accurately addressing all the relevant legal and factual issues . Precedents form an essential part of drafting and the same can be very helpful in litigation
Meaning of Pleadings Pleadings are statements in writing drawn up and filled by each party to a case stating what
his contentions will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer. a nswer.
Pleadings Generally Order VI Rule 1 , Code of Civil Procedure 1908, provides that, Pleading‟ means plaint or
written statement. Order VI Rule 14 , Code of Civil Procedure 1908, provides that “Every Pleadings shall be signed by the parties and his pleader (if any)” Order VI Rule 15 , Code of Civil Procedure 1908, provides that “Every Pleadings shall be verified at the foot by the party or by one of the parties p arties pleading”. What is pleading? Pleading is the beginning stage of a lawsuit in which parties formally submit their claims and
defenses. The plaintiff submits a complaint stating the cause of action -- the issue or issues in controversy . The defendant submits an answer stating his or her defenses and denials. The defendant may also submit a counterclaim stating a cause of action against the plaintiff.
Pleadings serve an important function of providing notice to the defendant that a lawsuit
has been instituted concerning a specific controversy or controversies . It also provides notice to the plaintiff of the defendant's intentions in regards to the suit.
Background: Old common law rules of pleading were complicated and rigourous . Meritorious complaints
were often thrown out of court for technical flaws in form rather than substance . Today, in
most if not all states, a pleading must no longer conform to archaic formats but may be a simple petition or complaint setting forth the relevant facts and asking for a remedy .
Pleading in a Suit: Pleading is defined in the code of civil procedure in O 6, RULE 1 .as given below :-
"pleading" shall mean plaint or written statement." Order 6 Rule 2 says pleading to state material facts and not evidence.
Order 6, Rule 2 (1) every pleading shall contain and contain only a statement in concise form
of the material facts on which the party p arty pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved . Basic principle of pleading is that "pleading should refer to fact alone , it should not be argumentative averment."(M/s strong construction v. state of up. AIR 2005 ),
Case Law :1. Jitu Patnaik versus Sanatan Mohakud & Others 2012 (1) U.A.D. 767 (SC). A distinction between "material facts " and "particulars ", however, must not be overlooked. "Material facts" are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. "Particulars", on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. "Particulars" thus ensure conduct of fair trial and would not take the opposite party by surprise. All "material facts" must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence . Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial." 2. Union of India versus Ibrahim Uddin & Anr 2012 (2) U.A.D. 566 (SC) The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case,such evidence has been adduced or a finding of fact has been recorded by b y the court, it is just to be ignored. Object of Pleading : It is well settled position of law that the whole object of pleading is to give fair notice to each
party of what the opponent's case is, and to ascertain, with precision, the points on which the parties agree and those on which they differ, and thus to bring the parties to a definite issue. The purpose of pleading is also to eradicate irrelevancy . In order to have a fair trial it is imperative that the party should state the essential facts so that other party may not be taken by surprise .
The parties thus themselves know what are matters left in dispute and what facts they have to
prove at the proceeding and are thus given an opportunity to bring forward such evidence as may be appropriate. The main object of pleadings is to find out and narrow down the controversy between the parties . Contention which are not based on the pleadings cannot be permitted to be raised either at the time of arguments or at the appellate stage."The New India Assurance Co. Ltd. vs. Surender singh & others. (HC) UAD 2007
Description of Parties:There are two types of pleading mainly in a suit: 1. Plaint Order 7 Rule 1 of civil procedure code says that plaint shall contain the following particulars :-
1. The name of the court in which the suit is brought. 2. The name, description and place of residence of the plaintiff . 3. The name, description and place of residence of the defendant, so far as they can be ascertained. 4. Where the plaintiff or defendant is a minor or a person of unsound mind, a statement to that effect 5. The fact constituting the cause of action and when it arose. 6. The fact showing that the court has jurisdiction ; 7. The relief which which the plaintiff claim; 8. Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or so relinquished :and 9. A statement of the value of o f the subject matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits.
2. Written Statement: A 'defence' called the written statement , in general this is a reply repl y of plaint ,in which defendant deny or admit the each and every allegation or facts given in the plaint. Denial or admission must be Para wise and clear. It is settled law that denial for want of knowledge is no denial at all . The provisions contained in Order 8 Rule 5 require pleadings to be answered specifically in written statement. Muddasani venkata narsaiah versus Muddasani sarojana. In the written statement defendant can put his case also under the heading additional plea, and can states new facts or ground which is necessary to defeat the opponent. If defendant want to put his own claim against the plaintiff he can put it by way of set- off and counter claim u/o 8 Rule 6 and 6A of C.P.C.
NOTE:-The facts which remain unanswered by the defendant, it will be p resumed that the
said fact was admitted by the defendant. In general the fact which is taken to be admitted need not be proved. Pleading must be unambiguous clear and correct .Carelessly prepared pleading can spoil the suit.
Time for Filing of Written Statement: Order, 8 Rule 1:-Time for filing written statement is fix for 30 days from the date of service
of summon on him and maximum time limit from the date of service of summons is ninety days. Provision of Order 8, Rule 1, are directory in nature even after expiry of stipulated period
court can extend time to file written statement. (Rameshwar Lal v. Daya Nand AIR 2005 .) Frame of Suit: Order 2 Rule 1 says:- "Every suit shall as far as practicable be framed framed so as to afford ground
for final decision upon the subject in dispute and to prevent further litigation concerning them. " There are two important things in order 2 rule 1 , firstly, before framing a suit pleader should be remembered that "as far as practicable, it should be so framed as to afford ground for final decision of the subject in disputes." and secondly, to prevent further litigation concerning them. Order 2 Rule 2 says :- that "every suit shall include the whole of the claims which the plaintiff is entitled to make in respect of the cause of action ; but a plaintiff may relinquish any portion bring the suit within the jurisdiction of any court. of his claim in order to bring
Actually the main object of this rule is to avoid the multiplicity of suits, so its requires that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action" If he omits or relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquishes ( Order 2 Rule2 sub rule 3 ) but if he omits or relinquished any relief with the permission of the court he shall afterward can sue for the relief so omitted or relinquished ( Sub rule 3 of Rule 2 C.P.C.)
Fundamental Rule of Pleading:-
1. No amount of evidence can be looked into, upon a plea which was never put forward in the pleading. A question which did arise from the pleadings ple adings and which was not the subject matter of an issue cannot be decided by the court. 2. It is well settled that no amount of evidence can be looked into to find a case for which there has been absolutely no foundation in the pleadings. (Siddik Mohammed Shah v. Mt. Saran and others , Elizabeth v. Saramma - 1984 , Trojan & Co., v. Nagappa - AIR 1953 SC 235 , Bhagwadi Prasad v. Chandramaul - AIR 1966 ). 3. A court cannot make out a case not pleaded , the court should confine its decision to the question raised in pleading nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint . 3. A factual issues cannot be raised as considered for the first time in a second appeal .( Bachhaj Nahar vs. Nilima Mandal and others. )
Written Statement and affidavit
Order VI Rule 15 CPC,
Verification of pleadings.- (1) Save as otherwise provided by an y law for the time being in force, every b y some other pleading shall be verified at the foot by the party or by one of the parties pleading or by person proved to the satisfaction of the court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading , what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. (4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings .” Sub rule (4) of the aforesaid provision came to be inserted by the Amendment Act 46 of 1999 w.e.f. 01.07.2002. Prior to the amendment to Rule 15 CPC, there was no provision regarding verification of the pleadings in a plaint by way of an affidavit.
Section 26 of the CPC that deals with institution of suits prescribes as below :“26. Institution of suits - (1) Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. (2) In every plaint, facts shall be proved by affidavit.” It may be noted that sub rule (2) of Section 26 was also inserted b y way of the amendments that were given effect from 01.07.2002 When the aforesaid provisions are read conjointly, what clea rly emerges is that a suit is instituted upon presentation of the plaint or in such a manner as maybe prescribed in the CPC and the facts stated in the plaint are to be proved by affidavit. In the case of Salim Haji Abdul , the provisions of Order Order VIII Rule 1 , post amendment were held to be directory in nature by applying the oft quoted maxim that rules of procedure are handmaids of justice and while the language employed by the draftsman of the processual law may be liberal or stringent , the object of the prescribing procedure is advance the cause of justice.
Application for setting aside ex-part decree Format of an application to set aside a decree passed ex parte Important points an ex parte decree is a decree that is passed by the court in absence of any response from the defendant as per Order 9 Rule 6 of CPC.
As per Order 9 Rule 13, the defendant may apply before the court that passed the decree to set it aside on the following grounds: If he satisfies the court that the summons was not duly served He was prevented by any other sufficient cause from attending the hearing. For
example, bona fide mistake as to the th e date or hearing, late arrival of train, etc. are sufficient causes for absence of the defendant. Such an application for setting aside may be made within 30 days from the date of decree as per Section 123 of Limitation Act. Article 123 of limitation Act 1963
The period of limitation for an application to set aside a decree passed ex parte pa rte or to re-hear an appeal app eal decreed or heard ex parte {Explanation: For the purpose of this article, substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due service] is thirty days, the time of limitation starts to run from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. Article 123 applies not only to set aside the decree passed ex parte but also rehear an appeal decreed or heard ex parte.
According to Order IX Rule 13 of Civil Procedure Code the Court can entertain an application by a defendant to set aside a decree passed against him ex parte . Though the Article 123 governs only
suits, it is made applicable to application by reason of Section 141 of the Civil Procedure Code . The Art. 123 is not restricted to an application to set aside the ex parte decree passed in a suit. If an order is passed ex parte and has the force of a decree, then an application to set it aside will also be governed by the Art. 123 . An application to set aside an ex parte final decree is governed by the Art.
123. The provisions of Order IX Rule 13 of the Civil Procedure Code would be applicable a pplicable to a probate proceeding to recall an ex parte order granting probate of a Will. For setting aside an ex parte decree by the High Court original side Order IX, Rule 13 of the Civil Procedure Code is attracted b y Art. 123 of the Limitation Act. The expression “knowledge of the decree ” means something more than a mere knowledge that a decree has been passed in some suit in some Court against the applicant. It means that the applicant
must have knowledge not merely that a decree has been passed against him, ex parte by some Court against him, but that a particular decree has been passed against him in a particular Court for a particular sum as relief.
In M. Narasimha Reddy v. Begari Samuel, S amuel, [AIR 2003 NOC 357 (AP)], it has been held that the substituted service under Order V, Rule 20 of the Civil Procedure Code should not be deemed to be due service for the purpose of the Article 123. It is observed that the Explanation to Art. 123 is a specific provision which is mandatory in nature, but, in exceptional circumstances or if the Court feels basing on facts and circumstances of the case including th e conduct of the party part y to draw an inference regarding service, then the presumption can be held to be rebutted, however, it is a rare phenomenon and such inference of due service cannot be drawn in normal circumstances. ADVERTISEMENTS: It is also pointed out that an inference of o f due service may be drawn d rawn in the facts and circumstances of the case where it appears that the defendant is deliberately pleading ignorance of the knowledge of the proceeding and trying to take advantage of the Explanation to Art. 123 of the Limitation Act, 1963 and that in such a case the Court can call upon the parties for adduce evidence in its discretion which shall be exercised sparingly. In regard to an application for setting aside an ex parte decree in a suit, the starting point of limitation runs from the date of decree where the summons have been duly du ly served but where the summons was not no t served then from the time the applicant had ha d the knowledge of the decree. Similarly, the limitation for filing an application of the appeal decreed ex parte, the limitation would start from the date wh en the ex parte decree is passed where there was a service of the notice of the appeal. The expression “knowledge of the decree” means something more than a mere knowledge that a decree has been passed in some suit in some Court against the applicant. It means that the applicant must have knowledge not merely that a decree has been passed against him, ex parte by some Court against him, but that a particular decree has been passed against him in a particular Court for a particular sum as relief.
FORMAT:-
In the Court of Civil Judge Class - I at Indore Suit No. 1234 / 2009 A. B. s/o B. C. 123, A B Road, Indore, MP
………………………............................................ ………………………... ......................................... Plaintiff
Vs. M. N. s/o O. P. 456, A B Road, Indore, MP
................................................. ......... Respondent/Applicant
Application under Order IX Rule 13 of CPC, 1908
The respondent/applicant respectfully states as follows: -
(1) The Plaintiff filed the above suit which was decreed ex-parte against the applicant on 10/10/2009. (2) The applicant came of know of this fact on 15/10/2009, when a demand notice was served on him by the plaintiff for the decretal amount. (3) The plaintiff obtained the decree by b y suppression of material facts. (4) The summons in the said case was not served at all on the respondent/applicant. (4) The respondent/applicant could not enter appearance in the said case by reason on non-service of the summons. (5) Relief Claimed: The applicant accordingly prays that the decree passed ex parte on 10/10/2009 against the applicant in the afore mentioned case be set aside and the aforementioned case be tried in presence of the applicant.
Place: …………………. Date: …………………..
(Signature of the applicant)
YYY Advocate for Respondent/Applicant
Verification
I, M. N. s/o O.P. do hereby hereb y verify that the contents from paras 1 to 5 are correct and true to the best of my knowledge and the rest of the contents are based on legal advice, which I believe to be true. Affirmed at Indore this 4th Day of September 2009 . (Signature) Respondent/Applicant
Unit – Unit – II: II: Ordinary suit for Recovery (Lectures – 06) 06) Suit under Order XXXVII of CPC and the difference between the two suits
ORDER (37) XXXVII: SUMMARY PROCEDURE Court and classes of suits to which the Order is to apply
(1) This Order shall apply to the following Courts, namely:(a) High Courts, City Civil Courts and Courts of Small Causes: and (b) Other Courts: Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suits as it
deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the official Gazette, further restrict , enlarge 6r vary, the categories of suits to be brought under the operation of this Order as it deems proper.
(2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits, namely (a) Suits upon bills of exchange, hundis and Promissory notes; (b) Suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising; (i) On a written contract, or (ii) On an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (iii) On a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.] [2. Institution of summary suits
(1) A suit, to which this Order applies, Ma y if the plaintiff proceed desires to desires here under, be instituted by presenting a plaint which shall contain,(a) A specific averment to the effect that the s uit is filed under this Order; (b) that no relief, which does not fall within the ambit of this rule; has been claimed in the plaint; and (c) the following inscription, immediately below the number of the suit in the title of the suit, namely :"(Under Order XXXVII of the Code of Civil Procedure, 1908 )." (2) The summons of the suit shall be in Form No. 4 in Appendix Appen dix B or in such other Form as may, from time to time, be prescribed. (3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding exceedin g the sum mentioned in the summons, together with interest at the rate specified, if any, u p to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made mad e in that behalf and such decree may be executed forthwith.] 3. Procedure for the appearance of defendant
(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court and an address for service of notices on him. (2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to b e served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him for such service.
(3) On the day of entering the the appearance, notice of such appearance shall be given by the defendant to the plaintiff's pleader, or, if tile plaintiff sues in person, to the plaintiff himself, either by. Notice delivered at or sent by a pre-paid letter directed to the address of the plaintiff's pleader or of th e plaintiff, as the case may be. (4) if the defendant enters an appearance, appearanc e, the plaintiff shall thereafter serve on the defendant a summons for judgement in Form No. 4A in Appendix B or such other Form Fo rm as may be prescribed from time to time, returnable not less than ten da ys from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his h is belief there is no defence to the suit. (5) The defendant may, at any time within ten days from the service of such summons for judgement, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just: Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous vexatious: Provided further that, where a part of the amount claimed by the plaintiff p laintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court. (6) At the hearing of such summons for judgement,(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgement forthwith; or (b) if the defendant is permitted to defend as t o the whole or any part p art of the claim, the Court or Judge may direct him to give such security and within such time as may be b e fixed by the Court or Judge and that, on failure to give such security within the time specified b y the Court or Judge or to carry out such other directions as may have hav e been given by b y the Court or Judge, the plaintiff shall be entitled to judgement forthwith. (7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit.] 4. Power to set aside decree After decree the Court may, under special circumstances set aside the decree, and if necessary n ecessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to de, and on such terms as the Court thinks fit. 5. Power to order bill, etc., to be deposited with officer of Court In any proceeding under this Order the Court may order the bill, hundi or note on which the suit is founded to be forthwith deposited with an officer of the Court, and may ma y further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof. 6 Recovery of cost of noting non-acceptance of dishonoured bill or note The holder of every dishonoured bill b ill of exchange or promissory note shall have hav e the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment, or
otherwise, by reason of such dishonour, as he has under this Order for the recovery recover y of the amount of such bill or note. 7. Procedure in suits Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner.
Difference between ordinary suit and Summary suit A cheque is certainly a bill of exchange under Order 37 but the provisions of Summary Procedure will apply only when the cheque is in favour of the plaintiff. The differences b etween a summary suit and an ordinary suit on cheques ch eques is as below:
In a summary suit, the defendant is not entitled as a right to defend the suit as he is in an ordinary suit and he must apply for leave to defend . If no leave is granted then the plaintiff is entitled to a decree. To obtain such a leave the defendant will have to state on affidavit such facts as it would make incumbent on the Plaintiff to prove consideration. In a summary suit, the defendant must prove his facts within ten days from the service of summons for judgement. However in an ordinar y suit, he has a time limit of 30 days da ys for filing a written statement. Generally speaking, summary suits are much easier to establish for the Plaintiff and much tougher for the Defendant to defend than ordinary suits. This is because of the fact that the Defendant has an added burden of proving as to why he should be allowed to put up a defense . In theory, a summary suit is supposed to be a faster remedy than an ordinary suit. Sometimes multiple summons are served on a defendant before an ex parte decree parte decree in favour of the Plaintiff is passed. In a summary suit however, if the defendant fails to establish as to why he should be allowed to defend within 10 days, an ex parte decree is immediately given.
Hence it is my humble opinion that a summary procedure should always be opted op ted for whenever the circumstances allow, as compared to an ordinary su it. Suit for Permanent Injunction
Permanent Injunction A permanent injunction can be granted by the court by passing a decree made at the hearing and upon the merits of the suit. Once such decree is passed, the defendant is permanently prohibited from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff .
When can a permanent injunction be granted? A permanent injunction may be granted:
To the plaintiff in a suit to prevent a breach of an obligation existing in his h is favour, whether implicit or explicit. However, in a case where such an obligation arises out of a contract, the court follows the rules as specified by Chapter II of the Act. Chapter II, under Section 9 provides that a person may claim relief in respect to a contract, by pleading in his defense, any of the ground available to him under any law relating to contracts.
In a case where the defendant invades or threatens to invade the plaintiff’s the plaintiff’s right to, or enjoyment enjoyment
of, property, the court may grant a permanent injunction where: 1. The defendant is trustee of the property for the plaintiff; 2. there exists no standard for ascertaining the actual dama ge caused, or likely to be caused, by the invasion; 3. the invasion is such that compensation in money would not afford adequate relief; 4. the injunction is necessary to prevent a multiplicity of judicial p roceedings.
In Municipal Corporation of Delhi v. Suresh Chand Jaipuria, , their Lordships of the Supreme Court held that permanent injunction cannot be granted when an alternative efficacious relief is obtainable in any other usual mode or proceedings. But in that case remedy for the plaintiff was available under Delhi Municipal Corporation Act. When Section 41 (h) of the Specific Relief Act lays down that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode or proceedings.
Application for temporary injunction Order (39)XXXIX of CPC p arty to do or An injunction is an equitable remedy in the form of a court order that compels a party refrain from specific acts. It is a court order which restrains one of the p arties to a suit in equity from doing or permitting
others who are under his control to do an act which is unjust to the other party. An injunction clearly forbids a certain type of conduct. equ itable remedies, it It is a remedy that originated in the English courts of equity. Like other equitable has traditionally been given when a wrong cannot be effectively remedied by an award of money damages. Injunctions are intended to make whole again someone whose rights have been violated. Nevertheless, while deciding whether to grant an injunction, courts also take into account the interests of non-parties (that is, the public interest). When deciding whether to give an injunction, and deciding what its scope should be, courts give special attention to questions of fairness and good faith . One manifestation of this is that injunctions are subject to equitable defenses, such as laches
and unclean hands . Injunctions are given in many different kinds of cases. They can prohibit future violations of the law, such as trespass to real propert y, infringement of a patent etc.
Taking in to consideration the duration and the stage, they can be classified in to Temporary injunctions and Perpetual injunctions. Otherwise, an injunction that requires conduct is called a "mandatory injunction." An injunction that prohibits conduct is called a "prohibitory injunction. Many injunctions are both — that that is, they have both mandatory and prohibitory components, because they require some conduct and forbid other conduct. When an injunction is given, it can be enforced with equitable enforcement mechanisms such as contempt. It can also be modified or dissolved (upon a proper motion to the court) if circumstances change in the future. These features of the injunction injunction allow a court granting one to manage the behaviour of the parties.
Indian law:In Indian legal system the law of injunctions is mainly governed by Order XXXIX and section 36 and 42 of the Specific relief Act. Section 94(c) of the Civil Procedure Code also gives supplemental provision for grant of temporary injunction. It is also settled that there is no bar in granting injunction or supplementary orders under Section 151 of the Civil Procedure Code for compliance of injunction in just cases. The later provision of inherent powers increases the the scope of civil courts for granting injunctions.
TEMPORARY INJUNCTION When the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in suit, the Court may grant a temporary injunction to restrain such an act or make other order o rder for the purpose of preventing the dispossession of the plaintiff or for the purpose of preventing the causing of injury to the plaintiff plaintiff in relation to any property in dispute. If the defendants are creating third party interest/rights as he is trying to dispose of part of the property, the plaintiff can claim the injunction.
Temporary injunction is a provisional remedy that is invo ked to preserve the subject matter in its
existing condition. It's purpose is to prevent dissolution of the plaintiff's rights. The main reason for use of a temporary injunction is the need for immediate relief. Section 94 (c) and (e) of Code of Civil Procedure contain provisions under which the Court
may in order to prevent the ends of justice from being defeated, grant a temporary injunction or make such other interlocutory order as may appear to the Court to be just and convenient. an y suit a temporary Section 95 of Civil Procedure Code further provides that where in any injunction is granted and it appears to the Court that there were no sufficient grounds, or the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting the same, the Court may on application of the defendant award reasonable compensation which may be to the extent of the pecuniary pecuni ary Jurisdiction of the Court trying the suit.
While granting temporary injunction the tests be applied are
(1)Whether the plaintiff has a prima facie case, (2) Whether the balance of convenience is in favour of plaintiff and (3) Whether the plaintiff would suffer irreparable injury if his prayer for temporary injunction is disallowed. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused, and compare it with that which is likely to be caused to the other othe r side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that, pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit . At the stage of deciding the application for temporary injunction, the Court is not required to go into the merits of the case in detail.
Generally, before granting the injunction, the cou rt must be satisfied about the following aspects: * “ubi jus ibi remediam” .Whenever there is right there is remedy. * One who seeks equity must come with clean hands. * One who seeks equity must do equity. * Where equities are equal, the law will prevail. * Equity follows the law. * Equity aids the vigilant, not those who slumber on their rights. * The power to grant a temporary injunction is at the discretion of the court. * This discretion, however, should be exercised reasonably, judiciously and on sound legal principles. * Injunction should not be lightly granted as it adversely affects the other side. * The grant of injunction is in the nature of equitable relief, and the court has undoubtedly power to impose such terms and conditions as it thinks fit. Such conditions, however, must be reasonable so as not to make it impossible for the party to compl y with the same and thereby virtually denying den ying the relief which he would otherwise be ordinarily entitled to. Introduction
An injunction is a prohibitive writ issued by a court of equity, at the suit of a party complainant , directed to a party defendant in the action, or to a party made a defendant for that purpose, forbidding the latter to do some act, or to permit his servants or agents to do some act, which he is threatening or attempting to commit, or restraining him in the continuance thereof, such act being unjust and inequitable, injurious to the plaintiff, and not such as can be adequately redressed by b y an action fit law. law.[1] For example, if it so happens that a person is demolishing a building you have possible claims on, you may ask the competent court to order such person to not demolish the building until the trial for the claim of the building is complete and judgement goes in his favour.
The law of injunction has been provided for by the Specific Relief Act, 1963 (hereinafter, the Act), and is also regulated by the Code of Civil Procedure, 1908 in India. Types of Injunctions in the Indian Law Generally speaking, there are two types of injunctions under the act act[2], as mentioned below: 1. Temporary Injunction 2. Perpetual/Permanent Injunction Both the types of injunctions are discussed below. Temporary Injunction
regarding the matter in concern. They can be obtained during any stage of the trial and are regulated by the Code of Civil Procedure (CPC), 1908 [3]:
Section 94: The section provides for supplemental proceedings, to enable the court to prevent prev ent the ends of justice from being defeated. Section Se ction 94(c) states that a court may grant temporar y injunction and in case of disobedience commit the person guilty thereof to the civil prison and
order that his property be attached and sold. Section 94(e) of the Code enables the court to make interlocutory orders as may appear to it to be just and convenient.
Section 95: If it is found by the court that there were no sufficient grounds to grant the injunction, or the plaintiff is defeated in the suit, the court may award reasonable compensation to the defendant on his application claiming such compensation.
Order XXXIX: Rule 1: It enlists the situations when a court may grant temporary injunction. Th ese are: o
o
o
Any property in dispute in a suit is in danger of being wasted, damaged or o r alienated by any party to the suit, or wrongfully sold in execution of a decree, or the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.
Rule 2: It provides that an interim injunction may be granted for restraining the defendant from committing a breach of contract or other injury of any kind to the plaintiff. Rule 3: It states that a court shall direct a notice of application to the opposite party, before granting the injunction to the plaintiff. However, if it seems to the court that the purpose of the injunction would be defeated by the delay, it may not provide the notice. Rule 4: It provides for vacation of already granted temporary injunction. Rule 5: It states that an injunction directed to a corporation co rporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action the injunction seeks to restrain.
In the M. Gurudas and Ors. case [4], the Hon’ble Supreme Court of India has h as opined, “while considering an application for injunction, the Court would pass an order thereupon having regard to prima facie, balance of convenience and irreparable injury. ” Prima Facie Case:
Prima Facie literally means, on the face of it. In Martin Burn Ltd. vs. R.N. Banerjee, while discussing a the meaning of the ‘prima facie’ case, the court said: “A
prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence.” Prima facie case is a must to be eligible to obtain a temporary injunction. However, H owever, it is not sufficient and temporary injunction cannot be granted if the damage that will be caused if the injunction is not given is not irreparable.
2. Irreparable Injury:
‘Irreparable injury’ means such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused. refused.[7] 3. Balance of Convenience:
In the case of Anwar Elahi , the court has clearly explained the meaning of ‘balance of convenience’. According to the court: “Balance of convenience means that comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side side if the injunction is granted.” Permanent Injunction
A permanent injunction can be granted by the court by passing a decree made at the hearing and upon the merits of the suit. Once such decree is passed, the defendant is permanently prohibited from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.. When can a permanent injunction be granted?
A permanent injunction may be granted: ex isting in his favour, whether implicit or a. To the plaintiff in a suit to prevent a breach of an obligation existing explicit. However, in a case where such an obligation arises out of a contract, the court follows the rules as specified by Chapter II of the Act. Chapter C hapter II, under Section 9 provides that th at a person may claim relief in respect to a contract, by pleading in his defence, any of the ground available to him under any law relating to contracts. b. In a case where the plaintiff pla intiff invades or threatens to invade the plaintiff’s plaintiff’s right to, or enjoyment of, property, the court may grant a permanent injunction where:
1. The defendant is trustee of the property for the plaintiff; 2. there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; 3. the invasion is such that compensation in money would not afford adequate relief; 4. the injunction is necessary to prevent a multiplicity of judicial p roceedings. Mandatory Injunction
If the court finds it necessary and within its capability, capability, to compel the performance of an act, to prevent the breach of an obligation, it may do so granting a mandatory mandator y injunction to the plaintiff, compelling the defendant to perform the requisite acts..
Damages In Lieu of, or in Addition to Injunction
If the plaintiff claims for any additional damages along with the injunction sought for, either perpetual or mandatory, or in substitution of the said injunction, the court may award him such damages, dama ges, if it thinks [14] fitt . If no damages have been claimed, the court may allow the plaintiff to make the required fi amendments to the plaint and claim damages damages[15]. However, it is highly recommended to claim damages in the plaint before submitting it, as permission for further amendments rests solely at the discretion of the court. The dismissal of a suit to prevent the breach of an obligation existing in favor favo r of the plaintiff bars his [16] right to sue for damages for such breach. breach. Injunction to Perform Negative Agreement
The court can grant an injuncmtion to not do certain acts, which are prohibited by the contract to do. The court may do so even if it is unable to compel the performance of o f the affirmative terms of the contract, i.e. the terms that requires the defendant to do (perform) certain acts. However, it is subject to th e fact, whether the plaintiff has performed the terms of the contract bind ing on him or not. Non performance by the plaintiff dis-entitles him from obtaining such an injunction. injunction.[17] Case Laws Regarding Permanent Injunction
In the case of Jujhar Singh vs. Giani Talok Singh [18] where a permanent injunction was sought for by a son to prevent his father who happened to be the Karta of the Hindu Undivided Family (HUF), from selling the HUF property was set aside. It was not maintainable because the son, also a coparcener, had got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale. On the other hand, granting the injunction sought would allow the son to use the injunction to prevent the father from selling the property even if he is compelled to do so, due d ue to legal necessities. Where in the case of Cotton Corporation Of India vs. United Industrial Bank, an injunction was sought for to restrain the defendants from presenting a winding-up petition under the Companies Act, 1956 or under the Banking Regulation Act, 1949, the court dismissed the petition as it was not competent to grant, as a relief, a temporary temporar y injunction restraining a person from instituting a proceeding in a court not subordinate to it. The court here was of the view that if a perpetual injunction cannot cann ot be granted for the subject matter of the case under Section 41(b) of the act, ipso facto temporary injunction cannot be granted. granted.[19] Grounds for Rejection of an Application for Injunction
On the following grounds, an injunction cannot be granted:
1. To restraint a person from prosecuting a pending judicial proceeding, unless it is to prevent multiplicity of the proceeding. 2. To restraint a person from instituting or prosecuting a judicial proceeding in a court, where the injunction is sought from a court subordinate to that court. 3. To restrain any person from applying to any legislative body. 4. To restrain any person from instituting or prosecuting any proceeding in a criminal matter. 5. To prevent the breach of a contract the performance of which would not be specifically enforced (Illustration: a contract between a master and servant, requiring the servant to render personal services to the master cannot be specifically enforced by the master or the servant. Hence, an injunction cannot be granted in this situation) 6. Where it is not reasonably clear that an act it nuisance, to prevent such an act on the ground of nuisance. 7. To prevent a continuing breach in which the plaintiff has acquiesced, as the general rule is that an acquiescence is an implied consent by remaining silent. 8. Where except in the case of breach of trust, equally efficacious relief can certainly be obtained by any other usual mode of proceeding. 9. When the conduct of the plaintiff or his agents has been such as to dis-entitle him to the assistance of the court. 10. When the plaintiff has no personal interest in the matter
Suit for Specific Performance LAW ON SPECIFIC PERFORMANCE OF CONTRACT
Introductory:A contract is an agreement upon sufficient consideration to do or not to do a particular act. The party on whom this contractual obligation rests must not fails to discharge such obli gation. In case of his failure, the other party will have have a right sue for performance of the contract. This is called ‘Specific Performance’. Orders of specific performance are granted when damages are not an adequate remedy, and in some specific cases such as land sale. Such orders are discretionary, as with all equitable remedies, so the availability of this remedy will depend o n whether it is appropriate in the circumstances of the case. Under current law, courts grant specific performance when they perceive that damages will be inadequate compensation. Specific performance is deemed an extraordinary remedy, awarded at the court’s discretion Sections 9-25 deal with specific performance of contracts: Basic rules.
Decree of specific performance is discretionary relief. [Sukumar vs Susheel, 76 C.W.N 116] [See section 20 of S.R.Act] There should be a valid contract.[ c ontract.[ Ambica Prasad vs Naziran Bibi, AIR 1939 All 64], [Balram v Natku, AIR 1928 PC 75] If damages are an adequate remedy, no specific performance would be ordered. For the act which requires continued supervision of the Court, no specific performance would b e ordered. (Sec.14 (1) (d)) no specific performance would be ordered for contracts for personal work or service ‘Equity’ will insist on the principle of mutuality The person against whom the relief is claimed may take plea by way of defence under law relating to contract. (Sec.9)
Question no. 1:- What are the defences available under law of contract? Answer:- The defences that are available under la w of contract are :-
Incapacity of parties Uncertainty of contract Absence of concluded contract Fraud Misrepresentation Mistake Illegality or want of authority to enter into contract
Question no.2 :- When can specific performance of a contract be enforced? enforced?
Answer:- According to section 10 of the Act, the specific performance of contract can be enforced in the following cases:If there exists no standard for ascertaining the actual dama ge caused by the non no n performance of the act which agreed to be done When pecuniary compensation for its non performance would not afford adequate relief. When it is probable that pecuniary compensation cannot be got for the non performance of the act agreed to be done
Question no.3 :- Can part of contract be enforced?
Answer:- According to section 12 of the Act, the specific specific performance of part of contract may be enforced in the following cases:Section 12 of the Act corresponds co rresponds to Sections 13 to 17 of the Act with certain modifications. Section 12 (1), (2) and (4) of o f the Act provide exceptions to the general rule of specific performance of a part of a contract. As a general rule, a contract is intended to be deal with as a whole but not piecemeal. However, section 12(1) is an exception to the general rule. Lord Romilly M.R opined that ‘the Court can not specifically perform the contract piece meal bu t it must be performed in its entirety if performed at all’. The part unperformed must be a considerable portion of the whole; or It does not admit of compensation in money; mo ney; The part to the contract who is not in default can sue for part performance
Question no.4 :- What type of contracts cannot be enforced?
Answer:- Under section 14 of the Act, the following contracts c annot be enforced: Contracts in which compensation in money is an adequate relief.[ See section 14 (1) (a) of S.R.Act) , [Devendar Singh vs Syed Khaja, AIR 1973 SC 2457] Contracts involving personal service.[Vaish Degree College,Shamli vs Lakshmi Narayan, A IR 1976 SC 888] Contracts with uncertain terms. Contracts in its nature determinable Contracts which or not valid in law Contracts involving continuous supervision of the Court Contracts to build or repair repair works ( subject to some exceptions) [Union Construction Co. vs Chief Engineer,Estern Command,Lucknow,AIR 1960 All 72] The Contract by Hindu parent or guardian to give a child in marriage cannot be specifically enforced. [Gumpat Narain Singh inre, ILR 1 Cal.74]
Question no.5:- Who can obtain Specific performance of a contract?
Answer:- Section 15 of the Act says specific performance of a contract may be obtained by Any party thereto
The representative-in-interest, or the principal, or any party thereto excepting wh ere the earning skill, solvency or any personal quality of such p arty is a material ingredient in the court. If personal skill of one party is essential element element of the contract contract of specific performance is frustrated with death of that party and legal representative of that party cannot demand specific performance of the contract
Question no.6 :- What are are the defences avialbale to the defendant defendant in suit for specific specific performance of contract?
Answer:- The Defendant may set up any one of the the follwing defences in a suit for specific performance of contract. Compensation in money would be adequate relief Plaintiff’s unperformed part is large Contract depends on personal qualifications qua lifications or volition of parties.[Motiram vs Khyli Ram, AIR 1967 All 484] Wanting title Wanting in mutuality Contract is devoid of consideration Essential part of contract has ceased to exist ex ist Performance of contract would involve hardship to defendant than the plaintiff Performance of contract involves continuous duty over three years Uncertainty in terms of contract
Question no.7 :- Personal bars to relief under specific performance of contract under section 16:
Answer:- Specific performance of contract cannot be enforced in favour of a person in the following cases:Who would not be entitled to recover compensation for its breach; or Who has become incapable of performing or violates any essential term of, the contract that in his part remains to be performed or acts in fraud of the contract, or willfully acts at variance with or in subversion of the relation intended to be established by the contract; or or Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract.
Question no.8 :- What does discretion and power of court mean?
Answer:- Section 20 of the Act says:The jurisdiction to decree specific performance is discretionary. The Court is not bound to grant such relief merely because it is lawful to d o. The discretion of the Court should be arbitrary but sound and reasonable, guarded by judicial principles and capable of correction by a Court of appeal.
Question no.9 :- What are the circumstances in which the Court can exercise its discretion properly ? Answer:If the terms of contract give the plaintiff unfair advantage ov er the defendant; or If the conduct of the parties of contract or o r other circumstances, gives the plaintiff unfair advantage over the defendant If the performance of contract would involve hardship on the defendant which he did not foresee, whereas its non performance would involve no such hardship on the plaintiff; or
Where the defendant entered into the contract under circumstances which, though not rendering the contract voidable makes it inequitable to enforce e nforce specific performance Question no.10 :- What do the terms ‘Ready and willing to perform’ mean? Whether the conduct of the plaintiff is to be considered in a suit for Specific Specific Performance Suit? Answer:- In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors. MANU/SC/0025/1996 : (1995) 5 SCC 115 at para 5, this Court held: …Section 16(c) …Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequ ent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has h as always been willing to perform his part pa rt of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract. Question no.11 :- Is specific performance of contract b y Minor enforceable? Answer:- Sri Kakulam Subrahmanyam and another Vs. Kurra Subba Rao, AIR1948PC95, Held: A minor’s agreement being now decided to be b e void, it is clear that there is no agreement to be specifically enforced; and it is unnecessary to refer to former decisions and distinctions, following English authorities which were applicable only on the view now overruled by the Privy Council. Question no.12 :- Is specific performance of contract b y Agent enforceable? Answer:- An agent cannot personally enforce con tracts entered into by him on behalf of o f his principal not is he personally bound by them in the absence of any contract to that effect. See section 230 of Indian Contract Act,1872. Question no.13 :- Can Legal representative enforce specific performance of contract? Answer:- The legal representative of a deceased party can enforce a contract of sale . see ruling 1972 (2) MLJ 281, Dorai Swany vs Kanuiappa. Question no.14 :- Whether specific performance of contract can be granted with doubtful title? title? Answer:- No. Where the doubtfulness of the title cannot b e resolved except by proving certain intruinsic facts or by agitating against the parties other than the parties to the contract; the court cannot grant the relief of specific specific performance; A doubtful title is one regarding which some doubt persists persists but a bad title one defective in its nature. See Ahmedbhoy vs Sir Dinshaw. Question no.15 :- When Time is essence of contract? contract? Answer:- In AIR2011SC3234, 2011(5)ALD100(SC), Mrs. Saradamani Kandappan’s case, it was observed that the legal position is clear from the decision of a Constitution Bench of this Court in Chand Rani v.Kamal Rani MANU/SC/0285/1993 : 1993 (1) SCC 519, wherein this Court Co urt outlined the principle thus:
It is a well-accepted principle that in the case of sale of immovable property, time is neve r regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law la w of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable reaso nable time. An intention to make time the essence of the contract must be expressed in unequivocal language. In the case of Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs, 1993 (1) SCC 519, it was held that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are: 1. from the express terms of the contract; 2. from the nature of the property; and 3. from the surrounding circumstances, for example: the object of making the contract. Question no.16 : – : – Is Is suit for specific performance of contract by on e of joint promisees maintainable? Answer:- Smt. Nirmala Nirmala Bala Dasi and Anr. Vs. Sudarsan Jana and Ors. AIR1980Cal258. Reliance in this connection may also be placed on the following passage from the judgment of Privy Council in the case of Monghibai v. Cooverji Umersey, reported in MANU/PR/0023/1939 : AIR 1939 PC 170 – : “It has long been recognized that one or more of several persons jointly interested can bring an action in respect of joint property and if their right to sue is challenged can amend by b y joining their co-contractors as plaintiffs if they will consent or as co-defendants if they will not. Such cases as (1879) 11 Chn D 121 and (1898) 2 QB 380 are examples of this principle. Nor indeed would it matter that a wrong person had originally sued though he had no cause of action : See (1902) 2 KB 485. Once all the parties are before the Court, it can make the appropriate order and should give judgment in favour of all the persons interested whether they be joined as plaintif fs fs or defendants.” Question no.17 :- Can an unregistered agreement of sale be marked in suit for specific performance? ANSWER:- (i) A document produced for inspection of the Court cannot be admitted in evidence e vidence under Section 49(c) of the Registration Act, if it is required registration under S ection 17 of the said Act. (ii) Any document by whatever name called not creating, declaring, assigning, limiting or extinguishing any right, title or interest, but merely creating right to obtain another d ocument does not require registration under Section 17(1) of the Registration Act. (iii) As a necessary corollary a document of contract for safe of immovable property creating right to obtain another document shall not require registration re gistration by reason of the payment of earnest money or whole or part of purchase money by the purchaser. (iv) In any event, the prohibition under u nder Section 49(c) of the Registration Re gistration Act does not apply to an unregistered document effecting immovable property in a suit for specific performance un der the Specific Relief Act or as evidence of part performance of contract of as evidence of any collateral transaction not required to be effected by registered document. Question no. 18:- What are the essential elements to constitute ‘Lis Pendens’? Answer:- In order to constitute a lis pendens the following elements must be present :(I) There must be a suit or proceeding pending p ending in a Court of competent compe tent jurisdiction. (II) The suit or proceeding must not be collusive.
(III) The litigation must be one in which right to immovable property is directly and specifically in question. (IV) There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. (V) Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. Question no. 19 :- Application of Order 22 Rule 10 of CPC and Order 1 Rule 10 CPC in specific performance of contract? Answer:- The object of Order 1, Rule 10, C.P.C. is to discourage contest on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under this Rule, a person may be added as a party to the suit in the following two contingencies :- (i) When he ought to have been joined as plaintiff or defendant, and is not joined so, or (ii) When, without his presence, the q uestions in the suit cannot be completely decided. Order 1 Rule 10 cpc is wider than the scope Order 22 Rule 10 Cpc. Order 22 Rule 10 Cpc is merely an enabling provision and that it has certain pa rameters. Order 22, Rule 10, C.P.C. speaks of cases of an assignment, creation or devolution of any interest during the pendency of a suit and the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (See the ruling Lingaraja Mohanty vs Binodini Mohanty & Ors. on 20 April, 2011) Question no. 20:- Alternative relief of refund of earnest mone y Answer:- Where the vendee suing for specific performance of contract of sale in the same suit asked in the alternative for the relief of refund of earnest money o r advance money, paid under the contract of sale, can, as an aggrieved person, prefer appeal against the judgment and decree of the first court which granted him only the relief of return of the earnest money or advance money mone y while denying him the relief of specific performance. (See ruling AIR 1991 Madras 163, Ramani Ammal vs Susilammal) Question no. 21. Can amendment application be permitted relating to compensation in a suit for specific performance? Answer:- Where an amendment relates to relief of compensation in lieu of or in addition to specific performance where the plaintiff has not abandoned his relief of specific performance the ourt will will allow the amendment at any stage of the proceeding. proceeding. [See AIR 1992 SC 1604, Jagdish Singh vs Nathu Singh] Question no. 22. What is the distinction between ‘ Compensation’ and ‘ Damages’? Answer:- In the case of Mahamed Mozaharal Ahad Vs. Mahamed Azimaddin Bhuinya, AIR1923Cal507, Held: As Lord Esher observed in Dixon v. Calcraft (1892) 1 Q.B. 458 (463) the expression compensation is not ordinarily used as an equivalent to damages, although as remarked by by Fry, L.J. in Skinners’ Co. v. Knight (1891)2 Knight (1891)2 Q.B. 542 compensation may often have to be measured by the same rule as damages in an action for the breach. The term compensation as pointed out in the Oxford Dictionary, signifies that which is given in recompense, an equivalent rendered. Damages, on o n the other hand; constitute the sum of money mone y claimed or ad judged to be paid in compensation for loss or injury sustained; the value estimated in money, of something lost or withheld. The term compensation etymologically suggests the image of balancing on e thing against another; its primary signification is equivalence, and the secondary and more common meaning is something given or obtained as an equivalent.
Question no. 23. Can Court make an order under section 151 1 51 CPc directing the plaintiff to file an undertaking that he will pay some amount directed by the court to the defendant as damages if he fails in the suit? Answer:- A Court in exercise of inherent power under Section 151 of the Code cannot make an interim Order directing the Plaintiff to file an undertaking that he will pay a sum directed by b y the Court to the Defendant as damages in case he fails in the suit. [2010(5)ALD124(SC), Vinod Seth Vs. Devinder Bajaj and Anr.] Question no. 24. Is escalation in the price of the land ground to deny relief of specific performance? Explain section 20 of SR Act. Answer. Escalation in the price of the the land cannot, by itself, be a ground ground for denying relief of specific performance. In K. Narendra v. Riviera Apartments (P) Ltd. (supra), this Court interpreted interpreted Section 20 of the Act and laid down the following propositions: Section 20 of the Specific Relief Act, 1963 1 963 provides that the jurisdiction to decree spe cific performance is discretionary and the court is not bound boun d to grant such relief merely because it is lawful to do so; the discretion of the court is not arbitrary but sound an d reasonable, guided by judicial principles and capable of correction by a court of appeal. Performance of the contract involving some hardship on the Defendant which he did not foresee while non-performance involving no such hardship on the Plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognized in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the Defendant or improvident in its nature, shall not c onstitute an unfair advantage to the Plaintiff over the Defendant or unforeseeable unforeseeable hardship on the Defendant.[ See AIR2012SC2035, Narinderjit Singh Vs. North Star Estate Promoters Ltd.] Ltd.] Question no. 25. Whether grant of relief for specific performance will cause hardship to Defendant within meaning of Clause (b) of Sub-section (2) of Section 20 of Specific Relief Act, 1963? Answer:- The question as to whether the grant of relief for specific performance will cause hardship to the Defendant within the meaning of Clause (b) o f sub-section (2) of Section 20 of the Specific Relief Act, 1963, being a question of fact, the first appellate court without framing such an issue ou ght not to have reversed the finding of the trial court while concurring with it on all other issues with regard to the Appellant’s entitlement entitlement to relief for specific performance of contract.[ P rakash Chandra Vs. Narayan, AIR2012SC2826] Question no. 26. When does ‘false representation’ disentitle the plaintiff to t he equitable relief under section 22 of the Act? Answer:- The question naturally arises as to whether this false representation disentitles the plaintiffs to the equitable relief under S. 22 of the Act. As stated earlier, mere false representation is not enou gh. It has to be further shown by the defendants that this false representation resulted in adversely affecting their interest, or it altered the position of the parties in such a way that it would b e inequitable to grant relief to the plaintiffs.( AIR1967AP63, Vuppalapati Butchiraju and Anr’s case) Question no. 27. The plea of ‘Bonafide purchaser’ Answer:- Section 19(b) of the Specific Relief Act, 1963 , protects the bona fide purchaser in good faith for value without notice of the original contract. This protection is in the nature of an exception tot he general rule. Hence the onus of proof of good faith is on the purchaser who takes the plea that he h e is in innocent purchaser. Good faith is a question of fact to be considered and decided on the facts of each case. Section 52 of the Penal Code emphasises due care and attention in relation to good faith. In the General Clauses Act exphasis is laid on honesty.(Narayana Reddy (deceased) (D2) and Ors. Vs. P. Chandra Reddy, MANU/TN/7408/2007)
Question no. 28:- Whether Court need to grant the order for specific relief on the ground that it is lawful to grant specific relief? Answer:- “The jurisdiction to decree specific relief is discretionary and the Court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the Court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2)of the Specific Relief Act, 1963 as to under unde r what circumstances the Court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, defend ant, the Court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. a greement. If it is inequitable to grant specific relief, then also the Co urt would desist from granting a decree to the plaintiff.” (This para was observed in Nallam in Nallam Seeta Mahalakshmi and Ors. Vs. Talari Vijayalakshmi, 2005(4)ALD130). Question no. 29.:- Would a bare averment in the plaint or a statement made in the examination-inchief suffice to to prove ready and willing to perform contract? Answer:- In Umabai and Anr. v. Nilkanth Dhondiba Chavan (Dead) by LRs and Anr. MANU/SC/0285/2005 : (2005) 6 SCC 243, it was observed as follows. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the Plaintiff-Respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section16(c) of the Sp ecific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the Plaintiff-Respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records. Question no. 30:- Can Karta Alienate of joint family property? Answer:- Even if it is to be assumed that the property in question was part of the assets of the co parcenerary or joint family, it is possible for for a karta, which, the appellant indeed is, to alienate the property for the family necessity. The right of the karta of a Hindu Joint Family, Family, in this regard, is almost unquestioned. The only rider is that the co-parceners can challenge the sale so made, at a later point of time, by pleading that there did not exist any genuine family necessity, warranting the sale of the property.( Jala Anjaiah Vs. Ramisetty Anjaiah, MANU/AP/1014/2011).
Suit for Damages
When a Contract is breached, there are specific remedies to it. Broadly speaking, there are six remedies available.
Rescission of the Contract When one party to the contract co ntract breaches the contract, the other party part y need not perform his part of the obligations. The aggrieved party may rescind the contract. In such cases, the injured / aggrieved party can either rescind the contract of file a suit for damages. In general, rescission of the contract is accompanied by a suit for damages. Suit for damages The aggrieved party of the contract is entitled for monetary compensation when the contract is breached. The objective of Suit for damages is to put the aggrieved / injured party pa rty in a position in which he h e would
have been had there been performance and not breach. The aggrieved / injured party must be able to prove the actual loss or no damages will be awarded. Damages can be of four kinds. 1. 2. 3. 4.
Ordinary or General Damages Special Damages Exemplary or Punitive Damages Nominal Damages
Suit for Quantum Merit The term "Quantum Merit" is derived from Latin which means "what one has earned". The injured party can file a suit upon quantum merit and may claim payment in proportion to work done or goods supplied. Sections 65 to 70 deal with the provisions relating to suit for Quantum Merit. Suit for Specific Performance The suit for Specific Performance is regulated b y the Specific Relief Act, 1963. 1963. Specific Performance means the actual carrying out of the contract as agreed. The Court may ma y grant for specific performance where it is just and equitable to do. Specific Performance may be granted under the following grounds. 1. Lack of standard for ascertaining the damages 2. Where compensation is not adequate relief 3. Substantial work done by the plaintiff. The Court cannot grant the remedy remed y of specific performance in the following situations. 1. 2. 3. 4.
Where monetary compensation is an adequate relief Where the Court cannot supervise the actual execution of the work Where the Contract is for personal services Where the Contract is not enforceable b y either party against the other.
Suit for Injunctions Injunction is an order of the Court restraining a person from doing a particular act. Where the defendant de fendant is doing something which he is promised not no t to do, then the injured party will get a right to file a suit for injunction. Related Statute
Section 94 of Code of Civil Procedure, 1908: 1908: Supplemental proceedings Section 95 of Code of Civil Procedure, 1908: 1908: Compensation for obtaining arrest, attachment or injunction on insufficient grounds Section 142 of Code of Criminal Procedure, 1973: 1973: Injunction pending inquiry
of Indian Indian Contract Act, 1872 deals with Compensation for loss or damage caused by Section 73 of breach of contract
When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of o f things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.
Compensation for failure to discharge obligation resembling those created by contract.-When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract. Explanation.-In estimating the loss or damage arising from a breach o f contract, the means which existed of remedying the inconvenience caused-by the non-performance of the contract must be taken into account.
The term ‘damages’ may be defined as the monetary compensation payable by the defaulting party to the aggrieved party for the loss suffered by him. The aggrieved party, may therefore bring an action for damages against the party who is guilty of the breach of the contract. And the party, guilty of the breach, id liable to pay damages to the aggrieved party. The primary aim of damages is to compensate the aggrieved party, and to place him in the same position which he would have occupied had the breach of contract not occurred. It may, therefore, be noted that the damages are given by way of compensation for the loss suffered by the aggrieved party, and not for the purpose of punishing the default party. § Kinds Of Damages
Law recognizes various kinds of damages or losses. Once the court has determined which loss may be recovered, it is then faced with the problem of quantifying the loss, i.e. determining just how just ho w much the aggrieved party should receive. The kinds of damages are as follows: 1) Compensatory Damages – Damages – There are two categories of compensatory dama ges. The first category, general damages, includes all those damages that arise naturally from breach of contract. The second category called special damages arise due to the special circumstances foreseeable by b y the parties at the time of making contract. con tract. a) General damages (ordinary damages) – damages) – there there are damages that arise naturally from the breach of contract. They are restricted to the ‘direct and proximate’ consequences and not to the remote or indirect losses or consequences of the breach of a contract. In the case of Hadley v. Baxendale[1], the crankshift of a mill broke and it was necessary for it to be sent to the manufacturers as a pattern for the new n ew one. The mill owners engaged carriers for this purpose, but the carriers delayed delivery, and the mill owners were unable to use the mill for longer than th an if there had been no delay. Consequently, the loss of profits suffered by the millers was greater than if no delay had occurred. The millers sued the carriers for such loss of profits. The cou rts held that since the only information given by the millers was that the article to be carried was the broken shaft of a mill, and it was not made known to them t hem that the delay would result in loss of profits, they were not liable for the loss of profits. b) Special damages – damages – these these are the consequential damages caused by the breach of contract due to the existence of special circumstances. Such damages are awarded by the courts only onl y when at the time of making a contract, these special circumstances were forseeable by the party committing the breach. In the case of Victoria Laundry Limited v. N ewman Industries Limited [2], V the launders and d yers required a bolier for the purpose of expanding ex panding their business. V entered into an agreement with N where
N was to supply the Bolier on June 5th. Due to the fault of N, the Bolier was not delivered till November 8th. Consequently, V could not service his new customers and had a loss of o f lucrative profits worth 278 Pounds. V claimed this loss from N. N contend ed that he did not no t know about V’s lucrative business contacts. The court held that V could recover the loss of ordinary laundry profits p rofits but not the loss resulting from some lucrative contacts with specific customers because N was not awa re of these contacts and such a loss was not in contemplation of both the parties when the contract was made. If the special circumstances was already in the knowledge of the party responsible for the breach of contract, the formality of communicating them to him may not be necessary. In the case of Simpson v. London & North Western Railway Company[3], S a manufacturer used to exhibit his samples of his equipment at agricultural exhibitions. He d elivered his samples to railway company to be exhibited at New Castle. On the occasion he wrote “must reach at New Castle on Monday certain”. On the account of negligence on the part of railway company, the samples reached only after the exhibition was over. S, claimed damages from railway company for his loss of p rofits from the exhibition. The court held that the railway company was liable to pay these damages as it had the knowledge of special circumstances, and must have contemplated that a delay in delivery might result in such loss. c) Measuring of compensatory damagesSection 73, of the Indian Contract Act, 1872, provides that, “When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken b roken the contract, compenssation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew when they made the contract, to be liekly liekl y to result from the breach of it. Such compensation is not given for any remote and indirect loss or damage sustained by the reason of the breach.” This section warrants the need to assess such damag es, general or special, according to the facts of the case. In the case of a contract for f or sale or purchase general rule as regards re gards to measuring of the damage is that – that – i. The damage would be assessed on the difference between the contract price and the market price on the date of the breach. In the case of Jamal v. Moola Dawood Sons & Co.[4], M agreed to purchase certain shares from J on a particular date and subsequently declined to purchase them on that date. The difference between contract price and market price on that date was Rs. 1, 09, 218. J later on sold those shares and the actual loss amounted Rs. 79, 862. J sued M claiming Rs. 1, 09, 218 as damages. The courts held that he was entitled to Rs, 1, 09, 218, because the damages are meausred according to the circumstances existing on the date of breach. ii. Under a contract of sale of goods, damages can be claimed for breach of condition, or warranty and such damages include all damages flowing from the breach. In the case of Jackson v. Walson & Sons[5], J’s wife died from poisoning caused b y the tinned fish supplied by W. in an action for damages for breach, the court cou rt held that J was entitled to damages incurred by – by – employing employing extra servants by reason of the loss of wife’s services during illness, medical expenses, pecuniary loss occasioned by the death of his wife. iii. If the seller is selling services rather than something tangible and the bu yer breaches the contract, the calculation of general damages is somewhat different.
d) Duty to mitigate damages sufferedThe way in which liability for contract damages is limited by the courts imposing a duty on the party who has been harmed by b y a breach of contract to mitigate m itigate the damages resulting from the breach. In other words, the party who has been harmed may not sit idly and watch the damages accumulate. Moreover the party is supposed to act prudently to minimize such damages. In the case of Neki v. Pribhu[6], A took a shop from B on rent and paid one month’s rent in advance. B could not give possession of shop to A. there were other shops available in the vicinity but A chose not n ot to do business for eight months. After eight months, A sued B for breach of contract claiming damages dama ges including advance rent and loss of profits for eight months. The court held that he was entitled to a refund of his advance and nothing more, as he failed in his duty to minimize the loss by not taking takin g another shop in the neighbourhood. In another case, Derbshire v. Warran [1963], D was the owner of ‘X’ brand of car which was damaged in an accident by negligence of W. D was informed that the pre-accident value of the car was 85 pounds and the estimated cost of repair was 192 pounds, and as such an uneconomic proposition. D, however, decided to have the car repaired and claimed the damages from W amounting to 137 pounds (192 pounds – pounds – 80 80 pounds claimed from insurance 25 pounds the cost of hiring another vehicle until his car was repaired). W argued that D could have purchased a similar vehicle in the th e open market for 85 pounds; he should have not taken this uneconomic step. The court accepted this view and awarded the replacement value of the vehicle, i.e., 30 pounds (85 pounds replacement price 25 pounds cost of hiring another vehicle – vehicle – 80 80 pounds claimed from the insurance). 2) Vindictive Damages At time breach of contract by one party not only results in monetary mo netary loss to the injured party but also subjects him to disappointment and mental agony. In such cases monetary compensation alone cannot provide an appropriate remedy to the sufferings of the injured party. Thus there is a need for vindictive damages. Vindictive damages do not form part of the law of contract. The concept concep t is borrowed from English law. There are two kinds of contracts where Indian courts consider awarding vindictive damages: i. Breach of contract to marry. In this case the amount of damages will depend depe nd upon the extent of injury to the party’s feeling. One may be ruined, other may not mind so much. ii. Where a banker refuses to honour the cheque of a customer while having his money in his hands, and the customer thereby suffers loss of reputation. 3) Nominal Damages – Damages – Sometimes, a person brings a legal action for breach of contract and proves that a breach actually occurred but fails to prove that any actual damage has been suffered. This may happen, for example, because of the rules for measuring damages and requirement that damages should be foreseeable and proved with certainity. In such a situation, injured party is is awarded nominal damages. Such damages are awarded simply to recognise reco gnise the right of the injured party to cl aim damages, and are of very small amount. For ex: a) A contracted to purchase ‘LML Scooter’ from B, a dealer, for Rs. 25, 0 00. But A failed to purchase the Scooter. However, the demand for the Scooter far exceeded the supply and B could sell the Scooter to Z for Rs. 25, 000, i.e., without any loss of profit. Here if B makes a cl aim upon A for breach of contract, he will be entitled to nominal damages only.
4) Liquidated Damages And PenaltyThe contracting party may stipulate in the contract a sum of money to be paid in case the con contract tract is broken by either party. It may be termed as ‘liquidated damages’ or ‘penalty’ depending upon the purpose to fix the sum. The purpose of fixing a sum as ‘liquidated damages’ is to compensate the injured part y for the loss loss to be incurred by the breach of the other. Thus it is a fair pre-estimation of the loss to be caused by non performance of the contract. The purpose of providing a ‘penalty’ ‘penalt y’ in a contract is to discourage a party p arty from breaching it and to provide a special punishment if the contract is breached anyway. Thus it is a sum which has no relation to the probable loss, and generally is disproportionate to the damages likely to accrue as a result of the breach. The above differentiation is required to understand the position of English Law in this respect. English Law awards ‘liquidated damages’ as compensation, irrespective of the fact whether the sum so specified is more or less than the actual damages. But does not allow the sum specified as ‘penalty’ ‘pen alty’ on the ground the ground that only the government, not private individuals can determine appropriate remedies for breach of contract. Indian Contract Law differs from English law in this matter. It does not recognise an y difference between ‘liquidated damages’ and ‘penalty’. Nor does it allow any sum fixed by the parties as damages. It says that the injured party is entitled to a reasonable compensation in case of breach subject to the maximum of the amount fixed as ‘liquidated damages’ d amages’ or ‘penalty’ by the parties to the contract. contract. Section 74 of the indian Contract Act, 1872, provides that, “when a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the other party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be the penalty stipulated for.” Thus in India, the sum named in the contract is not aawarded as damages. It is left to the court to ascertain the actual loss or reasonable compensation and award the same, which will, however, not exceed the sum named in the contract.
Petition for eviction under the Delhi Rent Control Act
14. Protection of tenant against eviction. – (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favor of the landlord against a tenat: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:(a) That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a landlord in the manner provided in section 106 of the Transfers of Property Act, 1 882 (4 of 1882);
(b) That the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise without obtaining the consent in writing of the landlord; (c) That the tenant has used the premises for purpose other than that for which they were let(i) If the premises have been let on or after the 9th day of June, 19 52, without obtaining the consent in writing of the landlord; or (ii) If the premises have been let before the said date without obtaining his consent; (d) That the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof; (e) That the premises let for residential purpose are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and the landlord or such person has no other reasonably suitable residential accommodation; Explanation.- For the purpose of this clause, "premises let for residential purpose" include any premises which which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes; (f) That the premises have become unsafe or unfit for human habitation and are required bona fide by the landlord for fo r carrying c arrying out repairs which wh ich cannot c annot be carried out without the premises being vacated (g) That the premises are required bona fide by the landlord for the purpose building or re-building or making thereto any substantial additions or alterations and that such building or re-building or addition or alteration cannot be carried out without the premises being vacated; (h) That the tenant has, whether before or after the commencement of this Act, (Note: The word "built" omitted by Act 57 of 1988, sec.8 (w.e.f. 1-12-1988)) acquired vacant possession of, or been allotted, a residence; [(hh) (Note: Ins. by Act 57 of 1988, sec.8 (w.e.f. 1-12-1988)) That the tenant has, after the commencement of the Delhi Rent Control (Amendment) Act, 1988, built a residence and ten years have elapsed there-after;] (i) That the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and that the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment; (j) That the tenant has, whether before befo re or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises; (k) That the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate; (i) That the landlord requires the premises in order to carry out any building work at the instance of the Government or the Delhi Development Authority or the Municipal Corporation of Delhi in pursuance of any improvement scheme or development scheme and that such building work cannot be carried out without the premises being vacated. (2) No order for the recovery of possession of an y premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1) if the tenant makes payment or deposit as required by section 15: Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months. (3) No order for the recovery of possession in any proceeding under sub-section (1) shall be binding on any sub-tenant referred to in section 17 who has given notice of his sub-tenancy to the landlord under the provisions of that section, unless the sub-tenant is made a party to the proceeding and the order for eviction is made binding on him.
(4) For the purpose of clause (b) of the proviso to sub-section (1), any premises which have been let for being used for the purpose of business or profession shall be deemed to have been sub-let by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th da y of August, 1958, allowed any person is a partner of the tenant in the business or profession but really for the purpose of sub-letting such premises to the person. (5) No application for the recovery of possession of any premises shall lie under sub-section (1) on the ground specified in clause (c ) of the proviso thereto, unless the landlord has given to the tenant a notice in the prescribed manner requiring him to stop the misuse of the premises and the tenant has refused or failed to comply with such requirement within one month of the date of service of the notice; and no order for eviction against the tenant shall be made in such a case, unless the Controller is satisfied that the misuse of the premises is of such a nature that it is a public nuisance or that it causes damage to the premises or is otherwise detrimental to the interest of the landlord. (6) Where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall lie under sub-section (1), on the ground specified in clause (e) of the proviso thereto, unless a period of five years have elapsed from the date d ate of the acquisition. (7) Where an order for the recovery of possession p ossession of any premises is made on the ground specified in clause(c) of the proviso to sub-section (1), the landlord shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of the order. (8) No order for the recovery or possession of an y premises shall be made on the ground specified in clause (g) of the proviso to sub-section (1), unless the Controller is satisfied that the proposed reconstruction will not radically after the purpose for which the premises were let or such ramidically alteration is in the public interest, and that the plans and estimates of such reconstruction have been properly prepared and that necessary fund for the purpose are available with the landlord. (9) No order for the recovery of possession of an y premises shall be made on the ground specified in clause (I) of the proviso to sub-section (1), if the Controller is of opinion that there is any bona fide dispute as to whether the tenant has ceased to be in the service or employment of the landlord. (10) No order for the recovery of possession of any premises shall be made on the ground specified in clause, (i) of the proviso to sub-second (1) if the tenant, within such time as may be specified in this behalf by the Controller, carries out repairs to the damage caused to the satisfaction of the Controller or pays to the landlord such amount by way of compensation as the Controller may direct (11) No order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of the proviso of sub-section (1), if the tenant, within such time as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.
Eviction of tenant on bona fide requirement
The Supreme Court in Bhupinder Singh Bawa vs. Asha Devi (2016), has upheld an order of eviction on the ground of bona fide requirement of tenanted premises for the business requirement of the son of the landlady Ashok Kumar vs Ved Parkash & Ors. on 2009
Following the decision of the Harbilas' Case (supra) and the, this Court in a recent decision reported in Mohinder Prasad Jain Vs. Manohar Lal Jain 2006 (2) SCC 724 held that a landlord is entitled
to seek eviction of a tenant under the Act from a non- residential building on the ground that the landlord bonafiderequired the tenanted premises for his own use and occupation.
FORM ‘A’ OF RULES UNDER DELHI RENT CONTROL ACT, 1958 Before The Rent Controller Delhi ………………………………………………………………
Petitioner
.Vs …………………………………………………………..….
Respondent
fixation of standard rent Application for increase of standard rent
eviction of tenant Under section …………………… (Strike out whatever is applicable) 1.
2.
3.
4.
5.
6.
7.
8.
Municipal No. of the premises and Name if any.
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Street and Municipal Ward of division in which the premises are situated.
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(a) Name and address of the landlord.
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(b) Name and address of the tenant (s)
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Whether the premises are residential or non - residential.
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In the case of residential premises, the number of person occupying the same and in the case of non residential premises the purposes for which these are used and the number of employees, if any, working therein.
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Whether any furniture is supplied by the landlord.
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Details of fittings if any provided by the landlord.
:
Details of accommodation available
together with particulars as regards ground area garden and out house, if any. (Plan to be attached) 9.
10.
11.
12.
13.
14.
15.
16.
17.
:
Whether the premises are occupied by a single (or more than one) tenant.
:
Amenities available in regard to lighting, water sanitation and the like.
:
Money rent together with details of house tax, electricity, water and other charges paid by the tenant.
:
(a) Date of completion of construction of the premises and the cost thereof.
:
(b) Whether completion report was obtained from the local authority and if obtained, the date thereof.
:
Ratable value as entered in the last property assessment book of the Delhi Municipal Corporation/ New Delhi Municipal Committee or the Delhi Cantonment Board, as the case may be.
:
Date on which the premises were let to the tenant and details of agreement if any, with the landlord. Attested copy of the agreement to be attached.
:
Where the rent of the premises has been fixed under the New Delhi House Rent Control Ordinance, 1939 or the Delhi Rent Control Ordinance, 1944, or the Delhi and Ajmer & Mewar Rent Control Act, 1947 or the Delhi Rent Control Act, 1958 & if so the amount of such rent and the date from which it took effect. Whether there are any sub-tenants and if so, the date of such sub letting accommodation sub-let whether with or without the written consent of the landlord and the rent charged from the sub-tenant. Whether any additions or alterations have been made since the rent was fixed
:
:
as stated stated under item No.15 and if so the date on which such additions or alteration were made & the cost of such additions or alteration and whether they were carried out with the approval of the tan of the controller : 18.
(a) The ground on which the eviction of the tenant is sought.
:
(b) Whether notice required has been given and if so, particulars thereof copies of such notice and tenant’s reply if any, should be furnished. 19.
Any other and relevant information.
20.
Relief claimed.
Date:
: : :
Signature of applicant/recognised agent through Advocate
Verification:
the
I/we the above named petitioner/petitioner’s recognised agent do hereby verify that contents of paragraph No.1 to 19 of my above application are true to my knowledge and last para is prayer to the Court. Verified at Delhi this …………… day of ………………. 200….
(Signature of applicant/recognised agent)
Unit – Unit – III: III: General Principles of Criminal Pleadings (Lectures – 06 06)
CONVEYANCING — CONVEYANCING — IT’S IT’S MEANING MEANING Technically speaking, conveyancing is the art of drafting of deeds and documents whereby land or interest in land i.e. immovable property, is transferred by one person to another; but the drafting of commercial and other documents is also commonly understood to be included in the expression. act ion of conveyancing, Mitra’s legal and commercial dictionary defines “conveyance” as the action a means or way of conveyancing, an instrument by which title to property is transferred, a means of transport, vehicle. In England, the word “conveyance” has been defined differently in different statutes. Section 205 of the Law of Pro perty Act, 1925 provides that the “conveyance includes mortgage, charge, lease, assent, vesting d eclaration, vesting instrument, disclaimer, release and every other assurance of property or of any interest therein by any an y instrument except a will”. “Conveyance”, as defined in clause 10 of Section 2 of the Indian Stamp Act, 1899, “includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided by Schedule Schedule I” of the Act.”
Section 5 of the Transfer of Property Act, 188 2 (Indian) makes use of the word w ord “conveyance” in the wider sense as referred to above. Thus, conveyance is an act of conveyancing or transferring any property whether movable or immovable from one person to another permitted by customs, conventions and law within the legal structure of the country . As such, deed of transfer is a conveyance deed which could be for movable or immovable property and according to the Transfer of Property Act, 1882, transfer may be by sale, by lease, by giving gift, by exchange, by will or bequeathment. But acquisition of property by inheritance does not amount to transfer under the strict sense of legal meaning.
DRAFTING AND CONVEYANCING: DISTINGUISHED Both the terms “drafting and conveyancing” provide the same meaning although these terms are not interchangeable . Conveyancing gives more stress on documentation much concerned with the gives a general meaning transfer of property from one person to another , whereas “drafting” gives synonymous to preparation of drafting of documents.
Document may include documents relating to transfer of property as well as other “documents” in a sense as per definition given in Section 3(18) 3 (18) of the General Clauses Act, 1897 w hich include any matter written, expressed or described upon any substance by means of letters, figures or mark, which is intended to be used for the purpose of recording that matter. For example, for a banker the document would mean loan agreement, deed of mortgage, charge, pledge, guarantee, etc. For a businessman, document would mean something as defined under Section 2(4) of the Indian Sale of Goods Act, 1930 so as to include a document docum ent of title to goods i.e. “Bill of lading, do ck -warrant, warehouse-kee pers’ certificate, wharfingers’ certificate, railway receipt multi-model multi -model transport document warrant or order for the delivery of goods and any an y other document used in ordinary course of business as proof of the possession or control of goods or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented.”
The Companies Act, 1956 defines d efines vide Section 2(15) the term “document” in still wider concept so as to include include “summons, notices, requisitions, order, other legal process, and registers, whether issued, sent or kept in pursuance of this or any other Act, or otherwise”. Thus, drafting d rafting may cover all types of documents in business usages. In India, the comm ercial houses, banks and financial institutions have been using the term “documentation” in substitution of the words “drafting and conveyancing”. Documentation refers to the activity which symbolises preparation of documents including finalisation and execution thereof.
DISTINCTION BETWEEN CONVEYANCE AND CONTRACT Having understood the meaning of conveyance, it becomes necessary to understand the distinction between conveyance and contract before discussing basic requirements of conveyance or deed of transfer. Apparently, conveyance is not a contract. The distinction between conveyance and contract is quite clear. Contract remains to be performed and its specific performance may be sought but conveyance passes on the title to property to another person. Conveyance does not create any right of any action but at the same time it alters the ownership of existing right .
There may be cases where the transaction may partake both contract as well as conveyance. For example, lease, whereby obligation is created while possession of the property is transferred by lessor to lessee. More so, contracts are governed by b y provisions of the Indian Contract Act, 1872 whereas the cases of transfer of immovable property are governed b y the Transfer of Property Act, 1882 in India. A mere contract to mortgage or sale would not amount to actual transfer of interest in the property but the deed of mortgage or sale would operate as conveyance of such interest. In other words, once the document transferring immovable property has been completed and registered as required by law, the transaction becomes conveyance. Any such transaction would be governed under the provisions of the Transfer of Property Act, 1882.
a. Application for bail
a. Application under Section 125 Cr.P.C. IN THE COURT OF ____METROPOLITAN MAGISTRATEIN MAGISTRATE AT: HYDERABAD
Maintenance Case No.________ of 200__
BETWEEN:
1.
Smt. _____________W/D/o _____________ Age:________ Occ: _________
2.
Master____________S/o Master____________S/ o ________________ Age:________ Occ: _________
Both are R/o _________ _______________ ____________________ _____ _______________ ____________________ _____
.... Petitioners Petitioners
AND Mr. ___________________S/o _________________ Age:________ Occ: _________ R/o ____________________ _______________ ____________________ _____
..... Respondent Respondent
PETITION UNDER SECTION 125 Cr. P C FOR THE GRANT OF MAINTENANCE
The petitioners most respectfully submit as under:-
1.
That the Petitioner No. 1 was married to Respondent on ______________according to Hindu customs and rites at Delhi and one male child (Petitioner no. 2) was born out of this wedlock on__________.
2.
That Rs.__________ was spent on the marriage of the petitioner No. 1 and sufficient dowry articles were given to the respondent and his family members according to their status but the respondent and his family members were not satisfied and thus started demands from the petitioner but the parents of the petitioner are not in a position to fulfill the demands of the respondent and his family members. The petitioner No. 1 was tortured and humiliated time and again and ultimately she was thrown out of her matrimonial home in wearing clothes along with petitioner No. 2. Since then, the petitioner No. 1 is living with her parents.
3.
That the petitioner No. 1 visited to the CAW Cell for settlement of her married life but the respondent refused to maintain the petitioners. Then a case Under section 498A/406/34 IPC under the FIR No. _________ was registered against the respondent. Contd….P.2.
:: 2 ::
4.
That the respondent is not giving any maintenance to the petitioners and the Parents of the petitioner No. 1 are very poor person. The petitioner No. 1 has neither any source of income from any side nor she has any movable or immovable properties in her own name.
5.
That the respondent is employed as a Manager with M/s _____________________ and is getting Rs.12, 000/- per month from there and he earns Rs.15, 000/- per month from rent of his property and he has no other liability except to maintain the petitioners.
6.
That the petitioner No. 1 has require Rs.4,000/Rs.4,000/ - per month for her maintenance and Rs.3,000/- for her minor child as the petitioner No. 2 is attending school and expenses have to be made regarding his tuition fee, transport and cost of books etc. apart from other necessary expenses.
7.
The Petitioner No: 1 is a household lady, not having any skilled qualification and unable to work any job, as well unable to maintain herself and her son by self.
8.
This court has the jurisdiction as the petitioners live within the jurisdiction of this court and the marriage between the petitioner No. 1 and respondent had taken place here.
PRAYEPRAYER
It is, therefore, most respectfully prayed to this Hon'ble Court that in view of the abovementioned circumstances, please grant the maintenance of Rs.5,000/- per month for the petitioner No.1 and Rs.3,000/- for the petitioner No. 2 Under section 125 Cr.PC from the date of
petition in the interest of justice. Any other and further relief (s), which this Hon'ble Court deems fit and proper may also be passed in favour of the petitioners and against the respondent.
Dated: 29 – 12 12 – 2008 2008
Petitioner No. 1
Place : Hyderabad
Petitioner No. 2 (Being Minor Represented By Pet : 1)
COUNSEL FOR THE PETITIONER
Contd….P.3.
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VERIFICATION
I the above named petitioner do hereby verify that, all the facts above mentioned are true and correct to the best of her knowledge and belief. Hence verified by this petitioner and on behalf of the other petitioner on this the ___ th day of Dec, 2008 at Hyderabad.
Dated: 29 – 12 12 – 2008 2008
Petitioner No. 1
Place : Hyderabad
Petitioner No. 2 (Being Minor Represented By Pet : 1)
COUNSEL FOR THE PETITIONER Section 125 in The Code Of Criminal Procedure, 1973
125. Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain -
(a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of an y physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pa y the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father o f a minor female child referred to in in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority; (b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. (3) If any person so ordered fails without sufficient cause to compl y with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may ex tend to one month or until payment if sooner made: Provided that no warrant shall be b e issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated b y her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woma n or keeps a mistress, it shall be considered to be just ground for his wife' s refusal refusal to live with him. (4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living (4) No living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they a re living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made mad e under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
c. F.I.R. – F.I.R. – under under Section 154 Cr.P.C.
