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INTERLOCUTORY APPLICATIONS By Y. Srinivasa Rao
Sub-Topics:1. Checking and Registration of Interlocutory Applications . !n"uiries and #rders in Interlocutory Applications$ %e&porary in'unctions( Attach&ent )efore *udg&ents( Appoint&ent of Co&&issioners and Receivers +. !,a&ination of -itnesses and Recording of evidence in Interlocutory Applications . I&pleading third parties vis/0/vis octrine of o&inus 2itus
INTRODUCTION: %he &eaning of 3Interlocutory application4s given in the Rule 5'6 of A.P.Civil Rules of Practice and Circular #rders( 1789. It reads$ 3Interlocutory application4 &eans an application to the court in any suit( appeal or proceeding already instituted in such court( other than a proceeding for e,ecution of a decree or order. %here is no specific definition in Civil Procedure Code( 1798 to this phrase 3Interlocutory application4.
Rules 53 to 60 e!l e!l "it# I$te%locuto%& P%oceei$'s:urther( the ;ord
Rule ()e* +E,ecutio$ Petitio$ &eans a petition to the court for the e,ecution of any decree or order>
Rule ().* +E,ecutio$ Applic!tio$ &eans an application to the court &ade in a pending e,ecution petition( and includes an application of transfer( of a decree.
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%hese definitions ;ould denote that the ter&
Sec/ 1 is !lso %ele2!$t i$ t#is co$te,t/ ? It says a)out 3@iscellaneous proceedings4 $ %he procedure provided in this Code in regard to suit shall )e follo;ed( as far as it can )e &ade applica)le( in all proceedings in any Court of civil 'urisdiction.
E,pl!$!tio$: In this section( the e,pression
e& u$e%l&i$' .!cto%s: 1. %he on4)le Supre&e Court( i$ R!4!c#!$%! A'!%"!l 2s/ St!te o. U/ P !$ !$ot#e% AIR 17 SC 1888( held
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/ C;ECIN8 AND RE8ISTRATION O< INTERLOCUTORY APPLICATIONS$ As to checking and registration of interlocutory applications( the follo;ing provisions are &ost relevant.
!*
b* =#!t A$ I$te%locuto%& Applic!tio$ s#!ll st!te:- If ;e go through Rule E of the Civil Rules of Practice( ;hat an Interlocutory application shall state is kno;n to us. %his rule reads as infra$
Co$te$ts o. :- !,cept ;here other;ise provided )y these rules or )y any la; for the ti&e )eing in force( an Interlocutory Application shall state the provision of la; under ;hich it is &ade and the order prayed for or relief sought in clear and an d precise ter&s. %he application shall )e signed )y the applicant or his Advocate( ;ho shall enter the date on ;hich such signature is &ade every application in contravention of this rule( shall )e returned for a&end&ent or re'ected.
c* T#e%e s#!ll be sep!%!te !pplic!tio$ i$ %espect o. e!c# isti$ct %elie.:> As seen fro& Rule EE( there shall )e separate application in respect of each distinct relief prayed for. :urther( ;hen one interlocutory application is filed co&)ining several reliefs( the court &ay direct the applicant to confine the application only to one of such relief4s unless the reliefs are conse"uential and to file a separate application in respect of each of the others. %his rule reads as follo;s$/
Co$te$ts o.:- %here shall )e separate application in respect of each distinct relief prayed for. -hen several reliefs are co&)ined in one application( the court &ay direct the applicant to confine the application only to one of such relief4s unless +|Page
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the reliefs are conse"uential and to file a separate application in respect of each of the others.
It is held Sup%i&! Col Sto%!'e? =!%!$'!l 2s/ / S!4b!si2! R!o !$ ot#e%s 5996 + A2 E7 a single petition ;ith &ultiple prayers is not &aintaina)le and there should )e separate application in respect r espect of each distinct relief prayed for. for . A petition to condone the delay in setting aside the e,parte decree )eing interconnected ;ith &ain relief( na&ely( setting aside e,parte decree( s"uarely falls under category of conse"uential reliefs( ;hich are e,e&pt fro& re"uire&ent of Rule EE of CRP( See: !2!li N!%!&!$! !$ ot#e%s 2s/ !2!li C#e$$!44! 599E6 1 A2 F . and so( it ;as held that a single petition can )e &aintained. %hese t;o 'udg&ents ;ere found not inconsistent to each other as seen fro& another ruling. See. !ss!%!t# Y!s4ee$ 2s/ o#!44e A@ee4ui$ 59116 A2% 9. As per this ruling( if the relief is separate and distinct as per Rule EE of CRP( t;o separate applications have to )e filed. -hen one relief is ancillary to the &ain relief or inter/connected to the &ain relief t;o prayers can )e asked for in one petition and those prayers can )e granted. !ven other;ise( as per Rule EE( if t;o separate applications are necessary( the court &ay direct the party &aking the application to file t;o separate applications. o;ever( ;hen once the party is entitled to the relief( the Court is not supposed to dis&iss the petition on the technical ground( as o)served in this ruling.
* Cou%t #!s po"e% to %eect o% is4iss !$ !pplic!tio$ u$e% %ule 56:Court &ay re'ect interlocutory application if su)stantive order is not asked for. Rule E reads as follo;s$/
!& %eecte i. subst!$ti2e o%e% is $ot !se .o% :- !very application ;hich does not pray for a su)stantive order )ut prays &erely( that any other application &ay )e dis&issed( and every application ;hich prays for an order ;hich ought to )e applied for on the day fi,ed for the hearing of any suit( appeal or &atter( &ay )e re'ected ;ith costs
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e* Out o. o%e% petitio$ :- If the applicant intends to &ove an urgent 5out6 of order application( copy of such application shall )e served to the advocate or the party and it shall contain an urgent application on the day specified in the endorse&ent. See Rule EF ;hich reads as follo;s$/
Out o. o%e% petitio$: - -henever it is intended to &ove the application as an urgent 5out6 of order6 application( the copy of the application served on the Advocate or the party appearing ion person shall contain an urgent application on the day specified in the endorse&ent.
.* Se%2ice o. Notice s#!ll be 'i2e$ $ot less t#!$ t#%ee !&s: As seen fro& Rule E8( unless the court other;ise orders( notice of an interlocutory application shall )e given to the other parties to the suit or &atter or their Advocate not less than three days )efore the day appointed for the hearing of the application.
Se%2ice o. Notice:> 1. Hnless the court other;ise orders( notice of an interlocutory application shall )e given to the other o ther parties to the suit or &atter or their Advocate not less than three days )efore the day appointed for the hearing of the application. . Such notice shall )e served on the Advocate ;henever the party appears )y such Advocate. +. Gotice of the application &ay )e served on a party not appearing )y Advocate )y registered post
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'* Suppl& o. Copies to opposite p!%t&:Rule E7 tells us to supply every interlocutory application shall )e supported )y an affidavit and true copies of the application. %hose copies shall )e supplied to the opposite party or his advocate. %his rule reads as follo;s$
Copies to opposite p!%t&:- !very interlocutory application shall )e supported )y an affidavit and true copies of the application( affidavit and the docu&ents( if any ;hich the applicant intends to use or on ;hich he intends to rely( shall )e furnished to the opposite party or his advocate( unless other;ise ordered( not less than three clear days )efore the hearing date.
(/ ENUIRIES APPLICATIONS:
AND
ORDERS
IN
INTERLOCUTORY
%!@P#RARY IG*HGC%I#GS( A%%AC@!G% B!:#R! APP#IG%@!G% #: C#@@ISSI#G!RS AG R!C!IK!RS
*HJ@!G%S(
An interlocutory order is an order that does not finally deter&ine the rights( duties and o)ligations of the parties to a proceeding. Interlocutory orders &ay take various shapes depending upon the re"uire&ent of the respective parties during the pendency of the suit. Applications for appoint&ent of Co&&issioner( %e&porary In'unctions( Receivers( pay&ent into court( security for cause( and etc. According to Stroud( interlocutory order &eans an order other than a final 'udg&ent Section 7 su&&arises general po;ers of a civil court in regard to different types of Interlocutory orders. %he detailed procedure has )een set out in the I Schedule of the C.P.C ;hich deals ;ith #rders and Rules.
)A* Sec/B1 CPC > Supple&entary Proceedings$ In order to prevent the ends of 'ustice fro& )eing )eing defeated the Court &ay( &ay( if it is so prescri)ed/ prescri)ed/ 5a6 Issue a ;arrant to arrest the defendant and )ring hi& )efore the Court to sho; cause ;hy he should not give security for his appearance( and if he fails to co&ply ;ith any order for security co&&it hi& to the civil prison>
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5)6 irect the defendant to furnish security to produce any property )elonging to hi& and to place the sa&e at the disposal of the court or order the attach&ent of any property> 5c6 Jrant a te&porary in'unction and in case of diso)edience( co&&it the person guilty thereof to the civil prison and order that his property )e attached and sold> 5d6 Appoint a receiver of any property and enforce the perfor&ance of his duties )y attaching and selling his property> 5e6 @ake such other interlocutory order as &ay appear to the court to )e 'ust and convenient.
)* Is t#e%e !$& i..e%e$ce bet"ee$ supple4e$t!%& p%oceei$'s !$ i$cie$t!l p%oceei$'s A supple&entary proceeding is initiated ;ith a vie; to prevent the ends of 'ustice fro& )eing defeated. %he supple&ental proceedings &ay not )e taken recourse to as a routine &atter )ut only ;hen an e,igency arises therefor. %he orders passed in the supple&ental supple&ental proceedings &ay so&eti&es cause hardship to the other side and( thus( are re"uired to )e taken recourse to( ;hen a situation arises therefor and not other;ise. %here are ;ell/defined para&eters laid do;n )y the Courts fro& ti&e to ti&e as regards the applica)ility of the supple&ental proceedings. Incidental proceedings are( ho;ever( taken recourse to in aid of the ulti&ate decision of the suit ;hich ;ould &ean that any order passed in ter&s thereof( su)'ect to the rules prescri)ed therefor( ;ould have a )earing on the &erit of the &atter. Any order passed in aid of the suit is in e,ercise of ancillary po;ers. -henever an order is passed )y the Court in e,ercise of its ancillary po;er or in the incidental proceedings( the sa&e &ay revive on revival of the suit. But so far as supple&ental proceedings are concerned( the Court &ay have to pass a fresh order for their revival.
)C*/ Te4po%!%& I$u$ctio$s: 1. %he grant of in'unction is in the nature of e"uita)le relief and the court has undou)tedly po;er to i&pose such ter&s and conditions as it thinks fit. 5
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. %he circu&stances under ;hich Interlocutory &andatory in'unction could )e granted has )een dealt ;ith in
;e!lt#c!%e Li4ite? Re'iste%e O..ice? 8u%'!o$ t#%ou'# its !$!'i$' Di%ecto% !$ Ot#e%s 2s/ All Sto%es t#%ou'# its P%op%ieto% S//Abul 8!$i? 997 586 @2* 8E.
+. = !%ti$ u%$ Lt/ 2s/ R/N/!$e%ee( AIR 17E8 SC F7=. #nce the e,istence of pri&a facie case is &ade out the court should analyse the nd condition c ondition viL.( the irrepara)le in'ury. #nly if the applicant ;ould suffer irrepara)le in'ury if interi& in'unction is not granted then the in'unction can )e granted. %he court &ust )e satisfied that the refusal of in'unction ;ould result in irrepara)le in'ury to the party seeking in'unction. See$/ < Assist!$t Collecto% o. Ce%$t%!l E,cise? C#!$!$ N!'!%? =est e$'!l 2s/ Du$lop I$i! Lt/ !$ Ot#e%s( AIR 178E SC ++9=.
. %he third condition for granting Interi& In'unction is the )alance of convenience &ust )e in favour of the applicant. %he )alance of convenience test &ust )e clearly in favour of the applicant for granting an Interi& In'unction order. See$/
E. %he principles ;hile dealing ;ith te&porary in'unctrions are enunciated in
. If in'unction is granted on insufficient ground then ulti&ately if suit fails( the plaintiff can )e directed to pay such a&ount not e,ceeding Rs.E9(999M/ as da&ages to the defendant. %his is &ade clear in Section 7E of C.P.C. Recently the Ape, Court had an occasion to deal ;ith i&position of costs in ve,atious( frivolous( &alicious or speculative litigation. %his decision is reported in <9i$o Set# 2s/ De2i$e% !! A$ot#e% ( 919 586 SCC Page 1=. %his ruling deals ;ith the nature of order that can )e passed at the Interlocutory stage and ;hat sort sor t of conditions can )e i&posed. 8|Page
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)D*/ Appoi$t4e$t o. !2oc!te co44issio$e%s:%he o)'ect of #rder Rule 7 of Civil Procedure Code is not to assist a party to collect evidence ;here the party can procure the sa&e. An Advocate Co&&issioner can )e appointed under #rder KI Rule 7 of the Code of Civil Procedure 1798 inter alia for elucidating any &atter in dispute. (To know more, see To know more visit: https://articlesonlaw.word https://articlesonlaw.wordpress.com press.com/2016/07/12/the-law/2016/07/12/the-law-on-appointmen on-appointment-oft-ofadvocate-commissioner-in-sits/.! Appoint&ent of Co&&issioner in ter&s of part III i.e. &atter
= F5/ Po"e% o. cou%t to issue co44issio$s/ > Su)'ect to such conditions and li&itations as &ay )e prescri)ed( the court &ay issue a co&&ission ? 5a6 to e,a&ine any person> 5)6 to &ake a local investigation> 5c6 to e,a&ine or ad'ust accounts> or 5d6 to &ake a partition> 5e6 to hold la scientific( technical( or e,pert investigation> 5f6 to conduct sale of property ;hich is su)'ect to speedy and natural decay and ;hich is in the custody of the Court pending the deter&ination of the suit> 5g6 to perfor& any &inisterial act.= -hen an application for appoint&ent of advocate co&&issioner is filed( such application &ust )e decided ;ithout any delay. As ;as held in P/ Pe! S!i!i!# A$ O%s/ 2s T/ P!4!2!t#i? 177F 5E6 A2% 818( it is the duty of the Court to dispose of the interlocutory applications filed )y the parties during the pendency of the 7|Page
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suit ;ithin a reasona)le ti&e. -here in a suit for possession( the purpose of appoint&ent of a Co&&issioner ;as to collect evidence the re'ection for appoint&ent of Co&&issioner is a proper one( as opined )y the on4)le @adras igh Court in R!! 2s N!%!s#i4!4u%t#& 59116( C.R.P.P.Go.+1+ of 997( dt.91.98.911. It is ;ell/settled that if the oral and docu&entary evidence are found enough to resolve the controversies in the suit( the re'ection of application for appoint&ent of a Co&&issioner is a valid one. It is provided under #rder KI Rule 7 of CPC that in any suit in ;hich the Court dee&s a local investigation to )e re"uisite or proper for the purpose of elucidating any &atter in dispute( or of ascertaining the &arket value of any property( or the a&ount of any &esne profits or da&ages or annual net profits( the Court &ay issue a co&&ission to such person as it thinks fit directing hi& to &ake such investigation and to report thereon to the Court.
)E*/ Appoi$t4e$t o. Recei2e%s:Chapter KII( Rules 8 to 7+ of A.P.Civl Rules of Practice and Circular #rders(1789 deal ;ith 3Receivers4.
I$ %is#$!s"!4& C#ett& 2/ C/ T#!$'!2elu C#ett&( AIR 17EE @A +9( it ;as held that =%he five principles ;hich can he descri)ed as the O 3Si2!'$!$!t#!44!l 2/ A%u$!c#!ll!4 Pill!iG ( 1 @ad 2* 81 5N6> ?3;!bibull!# 2/ Abti!!ll!#G( AIR 1718 Cal 88 5F6> O 3Ti%!t# Si$'# 2/ S#%o4!$i 8u%u"!%! P%!b!$#! Co44itteeG( AIR 17+1 2ah 88 586> ?38#!$!s#!4 2/ o%!b!G( 18 Bo& F 5F.76> >H7!'!t T!%i$i D!si 2/ 19 | P a g e
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N!b!'op!l C#!i4( + Cal +9E 5N196> O 3 Si2!i R!! S!#ib 2/ Ais"!%i&!$!$!iG( AIR 171E @ad 7 5N116> O 3P%!s!$$o o&i De2i 2/ e$i !b!b R!iG ( E All EE 5N16> O 3Si#es"!%i D!bi 2/ Ab#!&es"!%i ahi4( 1E Cal 818 51+6> O 3 S#%o4!$i 8u%u"!%! P%!b!$#! Co44ittee? A4%its!% 2/ D#!%!4 D!s 4( AIR 17E 2ah +7 5N16> O 3#upe$%! N!t# 2/ !$o#!% ue%eeG ( AIR 19 Cal E 5N1E6.6 $O
56 %he Court should not appoint a receiver e,cept upon proof )y the plaintiff that pri&a facie he has very e,cellent chance of succeeding in the suit .5 See$ HD#u4i 2/ N!"!b S!! All han4( AIR 17.+ Hh + 5N16> O 3 O 3 Si!%!4 D!s 2/ o#!bi% D!sG( F Cal F7 5N186> O 3 !#!44! !si4 2/ N!'!%!! oop!$!%G ( AIR 178/@ad 81+ 5N176> O 3!$"!%il!l C#o"#u%& 2/ otil!lG( AIR 17 Pat 7+ 596.6 ?
5+6 Got only &ust the plaintiff sho; a case of adverse and conflicting clai&s to property( )ut( he &ust sho; so&e e&ergency or danger or loss de&anding i&&ediate action and of his o;n right( he &ust )e reasona)ly clear and free fro& dou)t. %he ele&ent of danger is an i&portant consideration. A Court ;ill not act on possi)le danger only> the danger &ust )e great and i&&inent de&anding i&&ediate relief. It has )een truly said that a Court ;ill never appoint a receiver &erely on the ground that it ;ill do no har&. 5See$ <!$'#!$4!l T!%!c#!$ 2/ /i!$b!iG ( AIR 17++ Sind +1 516> O 3iu%%!4i 2/ es#o%!4i4( AIR 17+7 #udh +1 5N6> O 3Sheoa&)ar Ban v. v . @ohan Ban4( AIR 171 #udh +8 5+66 ?
56 An order appointing a receiver ;ill not )e. @ade ;here it has the effect of depriving a defendant of a 3de facto4 possession since that &ight cause irrepara)le ;rong. If the dispute is as to title only( the Court very reluctantly distur)s possession )y receiver( )ut if the property is e,posed to danger and loss and the person in possession has o)tained it through( fraud or force the Court ;ill interpose )y receiver for the security of the pro perty. It ;ould )e different ;here the property is sho;n to )e 3in &edio4( that is to say( in the en'oy&ent of no one( as the Court can hardly do ;rong in taking 11 | P a g e
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possession$ it ;ill then )e the co&&on interest of all the parties that the Court should prevent a scra&)le as no one see&s to )e in actual la;ful en'oy&ent of the property and no har& can )e done to anyone )y taking it and preserving it for the )enefit of the legiti&ate ;ho &ay prove successful. %herefore( even if there is no allegation of ;aste and &is&anage&ent the fact that the property is &ore or less 3in &edio4 is sufficient to vest a Court ;ith 'urisdiction to appoint a receiver .5See$ 3Nil!4b!% D!s 2/ !b!l e#!%i 4( AIR 17F Pat 9 5N6> O 3Al!4! ibi 2/ S&e Ist! ;uss!i$G( AIR 17E Cal 7F9 5NE.6> O 3@athuria e)ya v. Shi)dayal Singh4( 1 Cal -G E 5N6> O 3Bhu)anes;ar Prasad v. Ra'esh;ar Prasad4( AIR 178 Pat 17E 5NF6. #ther;ise a receiver should not )e appointed in supersession of a )one fide possessor of property in controversy and )ona fides have to )e presu&ed until the contrary is esta)lished or can )e indu)ita)ly inferred.6 O
5E6 %he Court( on the application of a receiver( looks to the conduct of the party ;ho &akes the application and ;ill usually refuse to interfere unless his conduct has )een free fro& )la&e. e &ust co&e to Court ;ith clean hands and should not have disentitled hi&self to the e"uita)le relief )y laches( delay( ac"uiescence etc.=
)<*/ Att!c#4e$t be.o%e 7u'4e$t:3An attach&ent )efore 'udg&ent is to ena)le the plaintiff to realiLe the a&ount of the decree( supposing a decree eventually &ade( fro& the defendant property4. %his is the o)'ect of the #rder +8 rule E of %he Civil Procedure Code(1798 5herein after referred as CPC6. See. Janu Singh Ks *angi 2al( C E+1. %he scope and o)'ect of #rder +8 rule E of CPC and the rules follo;ed thereon &erely to protect a plaintiff against loss arising fro& the defendant &aking a;ay ;ith his property pending suit. An attach&ent )efore 'udg&ent is in the nature of an interlocutory order. 5See$ So&e i&portant 'udg&ents of the on4)le igh Court of Andhra Pradesh as to the su)'ect &atter of 3Attach&ent )efore *udg&ent4 $/ 16 !t!%i R!t$! R!$i 2s 9el!'!pui R!4! R!o A$ O%s ( 99+ 56 A2% F7. 6 !4i!l! Su%es# !bu A$ O%s/ 2s Ti%u4!l!setti %is#$!4u%t#& ( 99 5+6 A2% E9 1 | P a g e
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+6 St!te O. A/P/ 2s P%!!s# ( 99F 516 A2 1++( 99F 516 A2% +8+ 6 S%i L!,4i Clot# Sto%es? 2s R!t$! A$ Co/? !c#ilip!t$!4( 1777 56 A2% 81 E6 R!4! u%t#& A$ O%s/ 2s S%i$i2!s Co%po%!tio$ 8e$e%!l ( AIR 1787 AP E8 6 S/P/ 9/ !bu 2/ 9!%!l!s#4i
I$ i!? 9is!!p!t$!4Gs c!se( AIR 178 AP 98 F6 U$io$ !$ O. I$i!? 86 Du22u%u Si2! u4!% Re& 2s !lli S%i$i2!sulu( 99 516 A2% EF9 76 Allu App! R!o 2s Si%ii !pu N!iu A$ O%s ( 99 5E6 A2 9 196 8osu 9e$!t! Ses#! Re& A$ A$%/ 2s 9!llu%u %is#$!i!# ( 99E 56 A2% +8 116 A$!$t#ul! uc#i%!4ulu 2s S!i$!l! 7!$!i R!4!i!#? 99 56 A2 F+9 16 P!supul!ti Ses#!$$! 2s Epp!%!l! !l!i!# )Die* Pe% L%s ( 99 5+6 A2 E116.
Settle p%i$ciples .o% '%!$ti$' !tt!c#4e$t be.o%e u'4e$t $/ In the case of P%e4%! u$%! 2s / !$ec 8!@i A$ O%s .$ AIR 17E1 Cal 1E( the follo;ing principles are given in para 19 as to attach&ent )efore 'udg&ent . 5Kisit$ . https$MMarticlesonla;.;ordpress.co& https$MMarticlesonla;.;ordpress.co&M91EM19M18Mattach&e M91EM19M18Mattach&ent/)efore/ nt/)efore/ 'udg&entM6 $
? 516 %hat an order under #rder +8( Rules E Q ( can only )e issued( if circu&stances e,ist as are stated therein.
? 56 -hether such circu&stances e,ist is a "uestion "uestion of fact that &ust )e proved to the satisfaction of the Court.
? 5+6 %hat the Court ;ould not )e 'ustified in issuing an order for attach&ent )efore 'udg&ent( or for security( &erely )ecause it thinks that no har& ;ould )e done there)y or that t hat the deft. -ould not )e pre'udiced.
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? 56 %hat the affidavits affidavits in support of the the contentions of the the applicant( &ust not )e vague( Q &ust )e properly verified. -here it is affir&ed true to kno;ledge or infor&ation or )elief( it &ust )e stated as to ;hich portion is true to kno;ledge( the source of infor&ation should )e disclosed( Q the grounds for )elief should )e stated. /5E6 %hat a &ere allegation that the deft. ;as selling off Q his properties is not sufficient. Particulars &ust )e stated.
? 56 %here is no rule that transactions )efore suit cannot )e taken into consideration( )ut the o)'ect of attach&ent )efore 'udg&ent &ust )e to prevent future transfer or alienation.
? 5F6 -here only o nly a s&all portion of the property )elonging to the deft. is )eing disposed of( no inference can )e dra;n in the a)sence of other circu&stances that the alienation is necessarily to defraud or delay the pltf4s clai&.
? 586 %hat the &ere fact of transfer is not enough( since no)ody can )e prevented fro& dealing ;ith his properties si&ply )ecause a suit has )een filed$ %here &ust )e additional circu&stances to sho; that the transfer is ;ith an intention to delay or defeat the pltf.4s clai&. It is open to the Court to look to the conduct of the parties i&&ediately )efore suit( Q to e,a&ine the surrounding circu&stances( Q to dra; an inference as to ;hether the deft. is a)out to dispose of the property( Q if so( ;ith ;hat intention. %he Court is entitled to consider the nature of the clai& Q the defence put p ut for;ard.
? 576 %he fact that the deft. is in insolvent circu&stances or in acute financial e&)arrass&ent( is a relevant circu&stance( )ut not )y itself sufficient.
? 5196 %hat in the case of running )usinesses( the strictest caution is necessary Q the &ere fact that a )usiness has )een closed( or that its turnover has di&inished( is not enough.
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? 5116 -here ho;ever the deft. starts disposing of his properties one )y one( i&&ediately upon getting a notice of the pltf.4s clai&( QMor ;here he had transferred the &a'or portion of his properties shortly prior to the institution of the suit Q ;as in an e&)arrassed financial condition( these ;ere grounds fro& ;hich an inference could )e legiti&ately dra;n that the o)'ect of the deft. -as to delay and defeat the pltfs4. Clai&.
? 516 @ere re&oval re&oval of properties properties outside 'urisdiction( is not enough( )ut ;here the deft. ;ith notice of the pltfs4. clai&( suddenly )egins re&oval of his properties outside the 'urisdiction of the appropriate Court( Q ;ithout any other satisfactory reason( an adverse inference &ay )e dra;n against the deft. -here the re&oval is to a foreign country( the inference i nference is greatly strengthened.
? 51+6 %he deft. in a suit is under no lia)ilty to take any special care in ad&inistering his affairs( si&ply )ecause there is a clai& pending against hi&. @ere negect( or suffering e,ecution )y other creditors( is not a sufficient reason for an order under #rder +8 of the Code. ? 516 %he sale of properties at a gross undervalue( or )ena&i transfers( are al;ays good indications of an intention to defeat the pltf4s. clai&. %he Court &ust ho;ever )e very cautious a)out the evidence on these points Q not rely on vague allegations.
3/ EJAINATION O< =ITNESSES AND RECORDIN8 O< E9IDENCE IN INTERLOCUTORY APPLICATIONS/ a6. Sec. 11 CPC$ In fact( confining the evidence to the for& of affidavits at the interlocutory stages is adopted &ostly as a &easure of convenience. -ith the recent a&end&ents to the Code( the evidence through affidavits also stands e"uated to that of oral evidence. %he )road principles such as reference to pleadings( evidence( appreciation of the contentions( application of the provision of la;( need to )e follo;ed even ;hile disposing of interlocutory applications. It is pertinent to note that the Code does not prescri)e any special procedure to )e o)served in regard to interlocutory or &iscellaneous proceedings. Sec. 11 &andates that the procedure provided for in the Code in 1E | P a g e
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regard to suit( shall )e follo;ed in all the proceedings in any Civil Court as far as possi)le. See$ Asi! 9isio$ E$te%t!i$4e$t li4ite 2s/ Su%es# P%ouctio$s 5996 + A2 8F.
)6. Proof of facts )y affidavit$ Chapter/K( Rule 9 of the Civil Rules of Practice &akes it clear that the facts that are necessary for ad'udication of the interlocutory applications are to )e proved )y affidavits. %his rule reads as follo;s$/
P%oo. o. .!cts b& !..i!2it:- Any fact re"uired to )e proved upon an interlocutory proceeding shall unless other;ise provided )y these( rules( or ordered )y the court( )e provided )y affidavit )ut the *udge &ay( in any case( direct evidence to )e given orally( and thereupon the 11 evidence e vidence shall )e recorded( and e,hi)its &arked( in the sa&e &anner as in a suit and lists of the ;itnesses and e,hi)its shall )e prepared and anne,ed to the 'udg&ent. 'ud g&ent.
As ;as o)served in S/ R!2i$e% 2s 8/ D!s!%!t#( 99 56 A2 8E1( 99 5E6 A2% 1F( ( the facts that are necessary for ad'udication of the applications are to )e proved )y affidavits( as provided for under Rule 9 of the Civil Rules of Practice. It is true that depending on the circu&stances of the case( the Court &ay record oral and docu&entary evidence at that stage also. c6. Recording of evidence and e,a&ination of ;itnesses in interlocutory stage ? So&e relevant provisions and case/la;$/ 1. In !$bi !2i #i4i A$ A$%/ 2s !$bi !$ib#!i Abib#!i A$ O%s/ AIR 178 Ju' 178( 51786 9 J2R 79F( See Para E( ;herein it ;as o)served that ;hen the Court has )een given special po;er to decide certain interlocutory &atters )y affidavit( that po;er is unfettered. It is not su)'ect li&itations and conditions conditions prescri)ed. . As is discuseed a)ove( under Rule 9 of the Civil Rules of Practice &akes it clear that the facts that are necessary for ad'udication of the interlocutory applications are to )e proved )y affidavits. +. %he language &entioned in #rder +7 rule 1 3 -here in any Suit it is proved )y affidavit or other;iseO3 has so&e &eaning. :ro& this( it can )e understood that 1 | P a g e
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a fact as to interlocutory application filed under # rder +7 Rule 1 CPC can )e proved )y an affidavit. . ere( it is &ost relevant to consider #rder 17( Rule 1 of CPC. It says as follo;s$/ #R!R I/ A::IAKI%S 1 . Po;er to order any point to )e proved )y affidavitO Any Court &ay at any ti&e for sufficient reason order that any particular fact or facts &ay )e proved )y affidavit( or that the affidavit of any ;itness &ay )e read at the hearing( on such conditions as the Court thinks reasona)le $ Provided that ;here it appears to the Court that either party )ona fide desires the production of a ;itness for cross/e,a&ination( and that such ;itness can )e produced( an order shall not )e &ade authoriLing the evidence of such ;itness to )e given )y affidavit. E. #rder 18 rule of CPC says that ;itnesses to )e e,a&ined in open CourtO %he evidence of the ;itnesses in attendance shall )e taken orally in open Court in the presence and under the personal direction and superintendence of the 'udge. As seen fro& this provision( it is applica)le to hearing suits. #f course( even in suits( party is per&itted to su)&it !,a&ination/In/Chief affidavits. . Section +9 5c6 of CPC says that order any fact to )e proved )y affidavit. According to Indian !vidence Act( 18F+( = !vidence= &eans and includes/ ( 516 . all stat81nents ;hich the Court per&its or re"uires to )e &ade )efore it )y ;itnesses( in relation to &atters of fact under in"uiry> such state&ents are called oral evidence$ 56 all docu&ents produced for the inspection of the Court> . Such docu&ents are called docu&entary evidence. F. In S#!4su$e% R!u4!%? ! .i%4 2/ #!%!t Oil ills? N!'pu% ( AIR 17 Bo& +8( it ;as held as follo;s$ 11. -hat evidence &eans and includes( is descri)ed in section + of the Indian !vidence Act( )ut affidavits are not included ;ithin that description. #n the contrary( affidavits have )een e,pressly e,cluded )y section 1 of the Indian !vidence Act fro& the applica)ility of that Act( %hat &eans that affidavits cannot )e used as evidence under any of the provisions of the Indian !vidence Act. Affidavits can ho;ever( )e used as evidence( only under #rder 17( of the Civil Procedure Code. In accordance ;ith #rder 17( Rule 1( of the Civil Procedure Code( the Court has( for sufficient reasons( to pass an order that any particular fact or facts &ay )e proved )y affidavit. %hat ;ould &ean that affidavit evidence$ cannot )e entertained unless the Court passes an order( for sufficient reasons( that any particular fact or facts &ay )e proved )y affidavits. af fidavits. -hile passing an order under 1F | P a g e
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#rder 17( Rule 1( to call for evidence on affidavits( it is necessary to consider co&pliance ;ith the proviso to Rule 1 and ;ith the re"uire&ents of Rule ( under #rder 17( as the circu&stances of each case &ay re"uire. 8. / N/ u$ib!s!pp! 2/ 8/ D/ S"!4i'!l ( AIR 17E7 @ys 1+7. In Para 1F of the 'udg&ent( it ;as held as follo;s$ 1F. In &y opinion( opinion( ;hile ;hile it it ;ould ;ould not )e correct to say that an affidavit cannot )e regarded as evidence even through it is properly produced under Rule 1 or of #rder 17 of the C. P. C.( it is clear that an affidavit can never take the place of evidence recorded in the ordinary ;ay unless the case is one to ;hich the provisions of those rules apply or the affidavit relates to a &atter like an application for an attach&ent or an in'unction in regard to ;hich the Code itself has &ade e,press provision.
7. Also see( AIR 17E AJ 9( !$#!i&!l!l S/ D!l!$i 2/ e'#%! R!4!%!$i and in AIR 17 #udh +E9 ? S#ib S!#!i 2/ Ti!K S/ R!2i$e% 2s 8/ D!s!%!t#( 99 56 A2 8E1( 99 5E6 A2% 1F( O;ANLAL 7U8ARA7 ;AIYA 9ERSUS ALAAI =?O AD;A9RAO? LA=S)B#@6/1781//+F and 8URS;ARAN AUR 9S ;//Si$'#? 2A-S526/1777//F 19. In interlocutory stage( ;hen the Courts are concerned a)out pri&a facie case( the Court tries interlocutory applications on affidavits. Si&ilarly( in a ;inding up petition( clai&s are ad'udicated on the )asis of the affidavits )y the Co&pany Court. But ;hen Court feels the clai&s should )e ad'udicated upon in trial in those cases( Court directs and relegates the clai&s to a suit. See$ %he o;rah @otor Co&pany 2i&ited vs !,ide Industries 2i&ited( 599E6 + CA22% EF+ C 11. S!!l!b#!tul! 9&u$t! R!o 2/ !e App!l!s"!4& ( A.I.R. 17F8 Andhra Pradesh 19+( in respect of disposal of the application under #rder +7( Rule I on the ground that the scope of in"uiries is "uite li&ited and the rights of the parties ;as not )eing decided :inally.
1/ IPLEADENT O< T;IRD PARTIES 9IS--9IS DOCTRINE O< DOINUS LITUS
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%he ter& 3o&inus 2itus4 is 2atin phrase ;hich &eans 3the &aster of the suit4. %o say aptly( the person ;ho ;as really and directly interested in the suit as a party( as distinguished fro& his attorney or advocate. 5See$ 5http$MMthela;dictionary.orgMdo&inus/li 5http$MMthela;dictionary.orgMdo&inus/litisM6. tisM6. As ;as held in o#!$$!u4!%!$ N!i% 2s 9i!&!u4!%!$ N!i% 5CAS! G#.$ Appeal 5civil6 811 of 99F( A%! #: *HJ@!G%$ 11M19M99F6 ( application of doctrine of do&inus litus is confined only to the cause of action ;hich ;ould fall ;ithin Sections 1E to 18 of the Code of Civil Procedure. It ;ill have no application in a case ;here the provision of Section 9 thereof is sought to )e invoked.
I4ple!i$' t#i% p!%ties:Basically( it is for the plaintiff in a suit( to identify the parties against ;ho& he has any grievance and to i&plead the& as defendants in the suit filed for necessary relief. e cannot )e co&pelled to face litigation ;ith the Persons against ;ho& he has no grievance. -here( ho;ever( any third party is likely to suffer any grievance( on account of the outco&e of the suit( he shall )e entitled to get hi&self i&pleaded. %he "uestion as to ;hether an individual is a proper or necessary party to a suit( ;ould depend upon the nature of relief clai&ed in the suit and the right or interest pro'ected )y the persons( ;ho propose to get the&selves i&pleaded. Go hard and fast rule can )e ;eighed( that ;ould cover a possi)le situation in this regard. 5See$ P!ll!pu o#!$!%!o )ie* b& LRs/ 2/ T#!44isett& Subb! R!o !$ Ot#e%s( 911 56 A2 +( and itt! S!$ee2! %e& !$ !$ot#e% 2/ S#!i .!%ui$ !$ !$ot#e%( 911 56 A2% 1F( !$ D!%i %is#$! u%t#& !$ ( ot#e%s 2s/ /S#!$!% Re& !$ 3 ot#e%s( CRP Go.+9M91(date of 'udg&ent$ 91/19/ 91+6. Also see$/ SURA7 LAP AND INDUSTRIES PRI9ATE LIITED )T;ROU8; DIRECTOR* 2/ STATE O< ;ARYANA AND ANOT;ER ( 5916 1 SCC E> and RAES; C;ANDRA PATTNAI 2/ PUS;PENDRA UARI AND OT;ERS ( 59986 19 SCC F98.
CONCLUSION:%he &eaning of the ;ord 3Interlocutory application4 can )e understood that an application to the court in any suit( appeal or proceeding already instituted in such court( other than a proceeding for e,ecution of a decree or order. Section 11 of CPC deals ;ith &iscellaneous proceedings. !very Interlocutory Application need not )e tried as a suit under the guise of Sec. 11 CPC. Sec.7 17 | P a g e
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CPC deals ;ith Supple&entary Proceedings. As has )een discussed a)ove( Chapter/K( Rule 9 of the Civil Rules of Practice &akes it clear th at the facts that are necessary for ad'udication of the interlocutory applications are to )e proved )y affidavits. As can seen fro& dicta o)served in S. Ravinder4s case( depending on the circu&stances of the case( the Court &ay record oral and docu&entary evidence at that stage also. It is only ;hen the Court decides to record oral evidence instead of deciding the &atter on affidavits that the procedure for &arking docu&ents( as in the case of recording of the evidence in the suit( needs to )e follo;ed. -henever an order is passed )y the Court in e,ercise of its ancillary po;er or in the incidental proceedings( the sa&e &ay revive on revival of the suit. But so far as supple&ental proceedings are concerned( the Court &ay have to pass a fresh order or der for their revival. Application of doctrine of do&inus litus is confined only to the cause of action ;hich ;ould fall ;ithin Sections 1E to 18 of the Code of Civil Procedure. %he "uestion as to ;hether an individuals a proper or necessary party to a suit( ;ould depend upon the nature of relief clai&ed in the suit and the right or interest pro'ected )y the persons( ;ho propose to get the&selves i&pleaded. Go hard and fast rule can )e ;eighed. An interlocutory order is an order that does not finally deter&ine the rights( duties and o)ligations of the parties to a proceeding. Interlocutory orders &ay take various shapes depending upon the re"uire&ent of the respective parties during the pendency of the suit.
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