e Code of Civil Procedure, 1 3 Bangladesh Judicial Service Exam. 2007 , 1. When an application for amendment of plaint and written ‘statement may be filed? On what grounds, such an application may be allowed or rejected? Discuss with reference to the relevant provisions. Amendment of pleadings: Order VI, Rule 17 of the Code of Civil Procedure deals with amendment of pleadings. Pleadings are the case of the Plaintiff or the Defendant in Plaint and Written Statement respectively. According to Rule 17 of Order 6 of CPC, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment shall not be allowed after the trial has commenced unless the court is of the opinion that in spite of due diligence the party could not have raised the matter before the commencement of trial. If such application for amendment is made after commencement of trial to delay the proceeding, the Court may make an order for compensation. In the case of the Rajesh Kumar Aggarwal & Ors v. K.K. Modi & Ors (AIR 2002 SC 1003) the court stated that Amendment of pleadings consists of two parts: 1. In the first part, the word ‘may’ gives discretionary power to the court to allow or disallow application of pleadings. 2. In the second part, the word ‘shall’ gives obligatory direction to the civil court to allow the application of pleadings if this amendment is necessary for the purpose of determining the real questions in controversy between the parties. Because of the mistake or inadvertence or subsequent developments or to meet the case made out by the opponent, the need for amendment of pleadings may arise. It was held in Abu Shafiq v. Assaduzzaman (9 BLT 359) that a prayer for amendment of pleadings should be considered liberally for bringing all possible controversies between the parties for complete and effective adjudication and avoid multiplication of litigation. Thus amendment of pleadings may be allowed at any stage of the suit. Amendment after judgment The amendment of pleadings may be granted before, or at, or after the trial, or in the appeal, or in revision, or in the Appellate Division or even in the execution proceeding provided that it does not prejudice the interest of other parties held in Radha Krishna v Dwarka Das (36 DLR (AD) 353). This is also possible in view of powers given to civil courts under sections 151,152 and 153 of the CPC held in Chand Mia v. Rajput Ghosh Bahadur (56 DLR 221). Amendment of Pleadings when granted In the case of Kishan Das Vithoba Bachelor, the court stated that there are two necessary conditions to be satisfied before granting leave for amendment of pleadings: 1. This grant of leave should not leads to the injustice to other party. 2. This Amendment of pleadings is necessary for determining the real question of controversy between parties.2. (a) What do you mean by the inherent power of the court? Explain and illustrate when such power can be invoked.) (b) When can temporary injunction be granted ina suit?) a. Inherent power of the court: Inherent power means existin quality, something intrinsic, ig and inseparable from something, Hence, a permanent attribute or vested in or attached to a person or office as a right of privilege. inherent powers are such powers which a other remedy, it is the duty of the court to ove justice. This power is preserved in Section 151 of the Code.(A\ Section 151 of CPC reads; “Nothing in this code shall be the inherent powers of the court to make such orders as justice or to prevent abuse of the process of the court.” The section confers on the judges to make such or achievable. The Power can be invoked to supp override or evade other express provisions as functioning of the courts. rride those rules for achieving the ends of bu Sama v Abu Sayed 48 DLR 141) deemed to limit or otherwise affect may be necessary for the ends of the ders that may be necessary to make justice ort the provisions of the code but not to CP.C. is the basic law which governs the be invoked When Inherent power can / Inherent power of the Court under section 151 ca: in be invoked in following two circumstances:4) ‘The Code of Civil Procedure, 1908)) fondant threatens, or intends, to remove or dispose of his property with g fen 5, : by order gr ary injunction to restrain such act, o; y by ry injunction t jurt may jer grant a temporary inj i ing, damagi ler for the purpose of staying and preventing the wasting, smaging Aroval or disposition of the property as the Cou Stiit or until further orders.(Rule 1 of Order 39) =tY injunction under Rule 2 of Order 39 when granted “J Outt grants an injunction under this rule where- he suit is for injunction and : ; here is 01 sach of contract or other injury of any kind. However, an injunction Tbalny diascdotary equitable relief cannot be granted when equally fficacious relief is obtainable m any other usual mode or proceeding. 2 Repmpicn®- Does an ex-parte decree operate as Res Judicata?) | Res Subjudice: The term ‘res subjudice ’ means stay of suit. In other words, Senet Of which is already a matter of issue in ancther suit, Section 10 specifies that no court shall proceed with the trial of any suit in which the matter in peng is also directly and substantially in issue in a previously instituted suit between the same Farties and that the court in which the previous suit ie pending is competent to grant the relief claimed. | | 3. Distinguish between Res-Subjudice and Res-Judicata with reference to the relevant a suit is to be stayed the subject Conditions of Res Subjudice This section can only be applied if the following condition are satisfied. These are. | 3, Two suits ~ Previously Instituted and Subsequently Instituted 2. Matter in issue in subsequent suit - directly and substantially in issue in previous suit, 3. Both suits between same parties or their representatives, 4. Previous suit must be pending in same or in any other court in Bangladesh . 5. The court dealing with previously instituted suit competent to grant relief claimed in subsequent suit. 6. Parties litigating under the same titles in both the suit, Res Judicata Section 11 of the CPC deals with the concept of res judicata. Res Judicata means a final judicial decision of a court of competent jurisdiction, once pronounced betweas Parties/litigant, cannot be contradicted by any one, as against any other of suich parties, in any subsequent litigation between the same parties, respecting the same subject ~ matter Conditions of Res-Judicata: ~ Section of the CPC embodies the doctrine of Res judicata and the conditions for its application are as follows: Two or more suits One suit already been decided Same Parties Same Subject-matters Same Cause of Action All suits are instituted in Bangladesh So ReneDistinction between Res-Subjudice and Res- Judicata There are some important distention between Res-Subjudice and Res- Judicata. There are Following:- 1. Incase of Res-Subjudice, there must be two suits, one previously instituted where as incase of Res- Judicata there must be an end to litigation. 2. Incase of Res-Subjudice, the matter in issue in both the suits must be substantially the same. On the other hand, the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit either actually or constructively. 3. In case of Res-Subjudice, the previously instituted suit must be pending in the same court in which the subsequent suit was brought or in a different court having jurisdiction to grant the relief claimed. On the contrary, the former suit must have been a suit between the same parties or between parties under whom they or any of them claim. 4, In case, of Res-Subjudice, such parties must be litigating in both the suits under the same title. In case of Res-Judicata, such parties must have been under the same title in the former suit. 5. In case of Res-Subjudice, both the suits must be between the same parties or their representatives. On the other hand, a final decision of a concrete issue between parties. Ex parte decree as Res Judicata Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then if it is proved that the summons was duly served, the court may proceed ex parte. (Order- 9, Rrule-6(1)(a), of the CPC, 1908). An exparte decree passed by a competent court on merits will operate as res judicata, because of the effect of the exparte decree as like as by-parte decree. But the doctrine of res judicata does not apply to a consent decree, because in ‘a consent decree a matter cannot be said to be heard and finally decided on merits, the decision in the former suit will operate as res judicata though the suit was decreed exparte held in Bangladesh Vs. Rakimuddin, (7 BLD 307). It was held in Ayezuddin v Abdul karim (1990 BLD 139) that exparte decree will operate as res judicata in the absence of fraud unless it is appealed from or set aside. 4, Distinguish between a judgement and decree. On what grounds, a plaint is returned or rejected? oe Judgment Judgment is defined in section 2(9) of the C.P.C. which says judgment is the statement given by the Judge on the grounds of a decree or order. Judgment refers to what the judge writes regarding all the issues in the matter and the decision on each of the issues. Hence every judgment consists of facts, evidence, findings etc. and the conclusion of the court. Essentials The essential element of a judgment is that there should be a statement for the grounds of the decision (Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1009). Every judgment other than that of a court of small causes should contain: 1. A concise statement of the case 2. The points for determinationmm | [BIS Written Solution 8) ‘The Code of Civil Procedure, 1909 E 4!" Bangladesh Judicial Service Exam. 2008 “4 1. Define the following terms- a) Decree b) judgment c) judgment-debtor d) decree-holder ©) legal representative f) rules 8) movable property h) mesne profits i) Government pleder j) district. | a. Decree See Solution 5, 34 BJS 2007 b. Judgment See Solution 5, 3! BJS 2007 ¢. Judgment debtor . According to Section 2(10) of CPC, “judgment-debtor” means any person agai al decree has been passed or an order capable of execution has been made. d) decree-holder According to Section 2(3) of CPC, “decree-holder” means any personvin whose favour a decree has been passed or an order capable of execution has been made: ' P e. ' representative Kodeding to “Section 2(11) of CPC, “legal representative” means a person who in law) represents the estate of a deceased person, and includes any person who intermedales with the estate of the deceased and where a party sues or is sued in a representative character the, person on whom the estate devolves on the death of the party so suing or sued; £. Rules According to Section 2(18) of CPC “rules” means rules and forms contained in the First Schedule or made under section 122 or section 125, . Mi ible proper Movable TT cane personal property which can be moved, rather than a building or Iand that stays in the same place. According to Section 2(13) “movable property” includes owing crops. According to Section 2(12) of CPC “mesne profits” of property means those profits which the son in wrongful possession of such property actually received or might with ordinary, Biligence have received therefrom, together with interest on such profits but shall not include ofits due to improve-ments made by the person in wrongful possession: i ent pleder | 1 Govern to Section 2(7) of CPC, “Government pleader” includes any officer appointed by ae eivernment to perform all or any of the functions expressly imposed by this Code on ti?) pee vernment Pleader and also any pleader acting under the directions of the Governmet! pleader; j. District “di F . J, Dishing to Section 2(4) of CPC,"district” means the local limits of the jurisdiction of # AccOfpal Civil Court of original jurisdiction (hereinafter called a “District Court”), Princes the local limits ofthe ordinary original civil jurisdiction of the High Court Division incl —BJS Written Solution [9] ‘The Code of Civil Procedure, 19081) 2. How a suit is to be instituted? What particulars should a plaint contain? In which, court a suit relating to immovable property is to be instituted? How a sui to be instituted Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. [Sec. 26, R-lof Or.7] . ‘There are various categories of Courts. All categories can be classified under Courts of First instance and appellate Courts. As per Section 15 of Civil Procedure Code every suit shall be instituted in the Court of the lowest grade competent to try it. Every Court has specific pecuniary and territorial jurisdiction. So we cannot file suits as per our convenience. Rules regarding filing of suits are guided by various provisions of Civil Procedure Code. Pasticulars to be contained in plaint Agfalihg to Rule 1 of Order 7, the plaint shall contain the following particulars:— a) the name of the Court in which the suit is brought; b) the name, description and place of residence of the plaintiff; ©) the name, description and place of residence of the defendant, so far as they can be ascertained; d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect; ©) _ the facts constituting the cause of action and when it arose; f) the facts showing that the Court has jurisdiction; 8) _ the relief which the plaintiff claims; h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits. j) Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed. (R.2,Or.7) k) Where the subject-matter of the suit is immoveable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement of survery, the plaint shall specify such boundaries or numbers. (R.3,Or.7) 1) Where the plaintiff sues in a representative character the plaint shall show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps (if any) necessary to enable him to institute a suit concerning it. (R-4,Or.7) m) The plaint shall show that the defendant is or claims to be interested in the subject- matter, and that he is liable to be called upon to answer the plaintiff's demand. (R. 5, Or7) n) Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed. (R.6,0r.7) ©) Every plaint shalll state specifically the relief which the plaintiff claims either simply or in the alternative. (R.8,Or.7) p) The plaintiff shall endorse on the plaint, or annex thereto, a list of the documents (if any) which he has produced along with it; and, if the plaint is admitted, shall present as many copies on plain paper of the plaint as there are defendants. (R.9,Or.7)of Civil Procedure, 1994 Suits Court with rel ad in the Court within q, SQ gene’ £° immovable property erty shall be file cd ere tp! tocar general rule suits relating to immovable Ey satiate, In other words, where iy al limits P 'S Of whose terri jurisdiction the roperty erritorial juris Property in dispute is situated. Section 1 3: and ction 16 of the Civil isas follows uniary and oth Suits to be inert Prpeedre Code ivan situate: Subject t0 ee Pes © i were : imitations prescribed by any law, suits- jthout rent or profits. {e) for the recovery of immovable property with or W' ° foe ihe Batition of immovable property the case of a mortgage of OF Charge upo, for the foreclosure, sale or redemption in immovable property. . 5 able property? ‘4 .@ (@) for the determination of any other right to or interest in immovable p! (©) for compensation for wrong to immovable property. distraint or attachment, Seat or the recovery of immovable propery actually under distant OF STS NT Shall be instituted in the Court within the local limits of whose j situate. of different courts:- Where a s immovable property situate within e ay be instituted in any court within the local loca limits of jurisdiction of Courts are uncertain | within the local limits of the jurisdiction of which of two or i is situate, any one of those Courts may, if satisfied that Salts for immovable property situate within jurisdiction me obtain relief respecting or compensation for wrong to, ertainty, record a statement to that effect and thereupon any suit relating to that property, and its decree in the suit the property were situate within the local limits of its fn recorded under sub-section (1), and an objection is taken before an appellate or revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the appellate or revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainlty as to the Court having jurisdiction with respect thereto and there has been a consequent failure of justice. [Section 18(2)] 3. What do you mean by set-off? When can such plea be raised? What is its legal effect in deciding the merit of plaintiffs claim in a suit? Discuss it with illustrations by citing the relevant provision of the Code of Civil Procedure, Set off meaning Set-off means a claim by the defendant against the defendant. Where in a suit for recovery of money has also a claim of some amount against the plain amount. plaintiff ora plea in defense available to the by the plaintiff the defendant finds that he tiff, then he can also file for set-off the saidBJS Written Solution (uy The Code of Civil Procedure, 1908 According to Rule 6 of Order 8 :Where in a suit for the recovery of money the defendant claims to set-off against the plaintiffs demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off. For example; A sues B ona bill of exchange for TK 1000. B holds a judgment against A for TK 3000. The two claims being both definite and ascertain, pecuniary demands may be set-off. When plea of set off may be raised According to Rule 6 of Order 8, the plea of set off may be raised at the first hearing of the suit but afterwards can be raised with the permission of the court. Essential conditions A defendant may claim a set-off if he satisfied the conditions follow as under- ‘The suit must relate to recovery of money; The sum of money must be ascertained or definite; Above said sum must be recoverable legally; The sum of money must be recoverable by the defendant or by all the defendants, in case of more than one defendants; . It must be recoverable from the plaintiff by the defendant; It must not exceed the pecuniary limits of the court in which the suit is brought; Both the parties must fill, in the defendant's claim to set-off, the same character as they fill in the plaintiff's suit; Effect of set-off The written statement shall have the same effect as a plaint as a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off: but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree [R. 6(2), Or. 8] In the claim of set-off, there are two suits, one by the plaintiff, and the other by the defendant against the plaintiff, they are tried together, no separate suit is necessary. In such a case, when the defendant claims set-off, he will stand in the position of the plaintiff in regards to the amount claimed by him. In such case, if the plaintiff doesn’t appear and his suit is dismissed for default, or he withdraws his suit, etc. it does not affect the claim of the defendant for set-off and a decree may be passed by the court in favour of the defendant if he is able to prove his claim. 4, In what kind of suit a prayer of attachment before judgment of the property of the defendant can be made? What conditions are to be fulfilled in order to obtain an order of such attachment? What kind of property is not attachable before judgment? Which court is not empowered to make an order for attachment of immovable property? Discuss, it with justrations in the light If the relevant provisions, of the code of Civil Procedure. Suit in which a prayer for attachment before judgment of the property of the defendant can be made: Rule 1, Order 38 reveals that prayer for arrest before judgment can be made in money suit. The effect is that prayer for attachment before judgment of the property of the defendant can be made in money suit only. PeNe now ~sayy st ocedure of What is pleading and what are the contents of pleading? hes ia. 068 Bre ey filling documents in support of pleading? Discuss with referen BE on b) In which cases a plaint may be rejected? What are the disrerancés, of plaint and return of plaint? Discuss with reference to relevant law. A. Pleading ing t is it in which Order 6 deals with pleadings in general. The pleading is the beginning stage of a suit in w1 parties formally submit their claims and defenses, Rule 1 defined pleading as a plaint or written. a 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. So the Plaint is the pleading of the Plaintiff and written statement in response to the plaint is the pleading for the Respondent. Contents of Pleading As per the sub-rule (1) of rule 2. And on Pleadings, the followin; analysis, \§ general principle: Of the lays down fundamental principles of s emerge:- 1 Pleadings should state facts and not law; 2. The facts stated should be material facts, 3. Pleading should not state the evidence; and 4, ‘The facts should be stated in a concise form, Further, as a general rule, every pleading must be si or by his pleader. But if th i authorized by him. Simil without setting out ecise words of the document or any part therecf ora: power ty oe aan nnexed to the plaint and state in B. Cases in which a plaint may be re jected See 3"! BJS, Ans. 5 ne) qhe differences between Tejection of plaint and return of plaint the solution to the Question Nos cf 2007The Code of Civil Procedure, 199 iscuss with reference tg 14) — Pre hat are the differences between review and s6¥i8 fn levant law, ion of title t b) °X’ instituted a suit in the Assistant Judge’s Court for declaration o ae The court dismissed the suit, because ‘X’ failed to produce proper title document, Later on °X’ can get relief? Justify your answer with reference to law. a. Differences between review and revision Differences between review and revision are as follows; Review: 1. Section 114 Order 47 deals with Review. f 2. Any court, which passed the decree or made order, can review the case. * ‘The review can be made only on an application by an aggrieved party. |. ‘The order granting the review is appealab! 5. Review takla male even when pappead lies to the High Court. - 6. ‘The grounds for review are: (a) discovery of new and important matter or evidence; (b) mistake or error apparent on the face of the record; (c) any other sufficient reason, Revision: 1, Section 115 deals with the Revision. - 2, The High Court can only do revision of any case which has been decided by any court subordinate to it. 3. Revisional powers can be exercised by the High Court on an application or even suo motu (of its own motion). 4. An order passed in the exercise of revisional jurisdiction is not appealable. 5. Revisional power can be exercised by the High Court only in a case where no appeal lies to the High Court, 6. The Conditions: (a) A case must have been decided; (b) the Court which has decided the case must be a Court subordinate to the High Court; (c) The order should not be an appeaiable one; (d) The subordinate court must have ~ (i) exercised jurisdiction not vested in it by law; or (ii) failed to exercise jurisdiction vested in it, or (iii) acted in the exercise of its jurisdiction illegally or with material Irregularity b. Fa ’X’ instituted a suit in the Assistant Judge’s Court for declaration of title to a land. The court dismissed the suit, because “X’ failed to produce proper title document. Later on “X’ can get relief? Decision: . X can get relief by way of review and appeal. He can file a review to the court of Assistant judge. According to section 114, any person considering himself agri or ae from which an appeal is allowed by this Code, but fron Wich ao peed ‘yas been preferred, or by a decree or order from which no appeal is allowed by this Code, or by 2 decision on a reference from a Court of Small Causes, may apply for a view of udiement to the Court which passed the decree or made the order, and the Court mo ial 7 uch order thereon as it thinks fit. 4 Ze Y ee X can make an appeal under section 96 to the District Judge wit ' wie fact court dismissed the suit. This type of dismissal con Teoma wa spel or according to section 96, a person can make an appeal against a decree. os appsDSSS Fie lhe s 354i (15) The Code of Civil Procedure, 1908 What relief is available to the aggrieved party in the following situation? Discuss with reference to relevant laws: a) If a suit is dismissed on the date of hearing because the defendant is present but plaintiff is absent b) If plaintiff gets an exparte decree because the defendant is absent due to illness on the date of hearing, ©) _A suit is decreed in favor of plaintiff but an erroneous decree is drawn up by court. If a suit is dismissed on the date of hearing because the defendant is present but plaintiff is absent: According to rule 9 of Order 9, where a suit is wholly or partly dismissed for absence of the plaintiff, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. But no order shall be made under this rule unless notice of the application has been served on the opposite party. B. If plaintiff gets an exparte decree because the defendant is absent due to illness on the date of hearing: According to rule 13 of Order 9, In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. Provided that where the decree is of such a nature that it cannot be set aside as against all or any of the other defendants also. C. A suit is decreed in favor of plaintiff but an erroneous decree is drawn up by court: According to section 152, clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. So, now the plaintiff may make an application for correction of decree. 4, a) Under what circumstances the appellate court can send to the trial court a case on remand? Whaat is the duty of the trial court in case for remand? Discuss with reference to relevant law. b) In an appeal the appellate court finds that the judgment of the trial court is erroneous, but the evidence on record is sufficient to determine the appeal. What are the duties and powers of the appellate court in disposing of the appeal? Discuss with reference to relevant law. EE ‘A. Circumstances the appellate court can send to the trial court a case on remand: Rules 16 to 22 of Order 41 provides about the provision relating to hearing of appeal. Rule 23 of this Order provides that Where the Court from whose decree an appeal is preferred hasDuty of the trial court in case for remand: for retrial, then the trial Count gh i 41, if any case is sent for aly ae ‘ee i ‘ate "and shall yetum the evidence to the Appellate Court together with its findings thereon and the reasons therefore. | B. Fact: i . | In an appeal the appellate court finds that the judgment of the trial beta ee ae the evidence on record is sufficient to determine the appeal. What are Powers of the appellate court in disposing of the appeal? Duties and powers of the appellate court in disposing of the appeal: According to rule 24 of Order 41, Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal ig | Preferred has proceeded wholly upon some ground than that on which the Appellate Court proceeds, Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential t the right decision of the suit upon the merits, the Appellate Court may, if Recessary, frame | issues, and refer the same for trial to the Court from whose decree the appeal is preferred, ani in such case shall direct such Court to take the additional evidence required. (Rule 25), Accordingly in this fact, Appellate court may determine the appeal though decision of the subordinate court is erroneous. 2) Discuss the provisions relating to jurisdiction of the court for the purpose of institution of a suit for immovable property. b) Discuss the provisions relating to transfer of a suit from one court to another and the powers of the transferring court. A Provisions relating to jurisdiction of the court for the purpose of institution of a suit for immovable property: Jurisdiction:[BJS Written Solution 19] The Code of Civil Procedure, 1908) : 6% Bangladesh Judicial Service Exam. 2011 T court pass a decree ex parte? When and how an What is decree? When does a e affected party may apply to the Court to set an ex parte decree aside directly? Discuss. See the solution 2008 (1) and 2010 (3). 2 Discuss in detail the different modes of service of summons upon defendants mentioning the relevant provisions of the Code of Civil Procedure. .ed in the Code. Generally, summons means the che court. Again a summons can be defined as a calling upon the person to whom it is certain purpose. The expression ‘summons’ has not been defin intimation which is sent to the defendant by # document issued from the office of a court of justice, directed to attend before a judge or officer of the court for ac Order 5 deals with summons to a defendant while Order 16 deals with summons to witnesses. Section 27 provides for: “where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed.” Rule lof Order 5, provides for-"When a suit has been duly instituted a summons shall be issued by the officer of the Court appointed in this behalf to the defendant within five working days from the date of filing the suit to appear and answer the claim on a day to be therein specified.” Different modes of service of summons: According to Rule 10 of Order 5, Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court. Service on several defendants:Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant. (Rule 11) Service to be on defendant in person when practicable or on his agent: Wherever it is ‘service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. (Rule 12) Service on agent by whom defendant carries on business:In a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service. (Rule 13) Service on agent in charge in suits for immovable property: Where in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property. (Rule 14) Where service may be on [adult member] of defendant's family: Where in any suit the defendant cannot be found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family of the defendant who is residing with him. (Rule 15) Person served to sign acknowledgement: Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons. (Rule 16) Procedure when defendant refuses to accept service, or cannot be found: Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, practicable,BIS Written Solution [21]. The Code of Civil Procedure, 1908 3. What do you mean by the issues of fact and issues of law? Briefly discuss the method of framing issues by a Court in a suit, At the first hearing of a suit, if the parties are not found at issues on any question of law or of fact what will happen? Give reply stating the relevant provisions. Issues are of two'kinds- (a) Issues fact; and (b) Issues of law. However, issues may be mixed issues of fact and law. Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. Courts power and duty as to issues: According to Rule 1 of Order 14, At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may. appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. The duty to frame proper issues rests primarily on the court. The Judge must apply his mind and understand the facts of the case before framing issues. But the pleaders for both the parties also should assist the court in framing issues. If proper issues are not framed, the parties may move the court to get the proper issues framed. Issues must be specific and clear and not vague or evasive. The court may examine witnesses or inspect documents before framing issues, to amend issues, to frame additional issues or to strike out issues that may appear to it to be wrongly framed. Where the parties to a suit agree as to the question of fact or law to be decided between them, they may be, by agreement state the same in the form of an issue. If the court is satisfied that the agreement is executed in good faith, it may pronounce the judgment on such issue according to the terms of the agreement. (Rr 6 and 7) Materials from which issues may be framed: The materials from which the court frames the issues may be all or any of the following: i) allegations made on oath by the parties, or by any person present on their behalf, or made by the pleaders of such parties; allegations made in the pleadings or in answers to interrogations delivered in the suit; the contents of documents produced by either party. Examination of witnesses or documents before framing issu Whenever necessary the court may examine a person not before the court, or inspect a document not produced in the suit, before the issues are framed. For this purpose, it may compel the attendance of such a person or the production of the documents by the person in whose possession or power it is, by issuing a summon or any other process. Power of court to amend and strike out issues: At any time before the decree is passed, the court can amend any issue or frame additional issues as may be necessary for determining the matters in controversy between the parties.Likewise, introduced, ion of law or At the first hearing of a suit, if the parties are not found at issues OF any questio of fact what will happen? ji found at i The court may at once pronounce a judgment if the parties ar question of law or of fact at the first hearing of the suit: Rule + issues On any aa ion of a decree? 4. a) What particulars are to be stated in an application for seo tetivery of an immovable b) Discuss different modes of execution of a decree for roperty & a decree for specific performance of a contract. cree: ‘A. Particulars are to be stated in an application for execution of a de According to rule 10 of i Application for Seine Ware the holder of a decree desires to een he ee orPy ie the Court which passed the decree or to the officer (if any) appointed in on Court then t decree has been sent under the provisions hereinbefore contained to 20 0 such Court or to the proper officer thereof. According to Rule 11, Oral application: 1) where a decree is for the payment of money. the Court me on be oal application of the decree-holder at the time of the passing of the decree, order immediate cexcution thereof by the arrest ofthe judgment-debtor, prior to the preparation of a warrant if he is within the precincts of the Court. 2) Written application: Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely a) the number of the suit; b) the names of the parties; ©) the date of the decree; d) whether any appeal has been preferred from the decree; e) whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree; ) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results; g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whethi date spagthas svt partion ot a EA er passed before or after the h) the amount of the costs (if any) awarded; 4) the name of the person against whom execution of }) the mode in which the assistance of the Court is» 3) bythe delivery of any property peal i atta ieanest Bane sale without attachment, of any property by the appointment of areceivery “Y Persons otherwise, as the nature of a of the relief granted may require. the decree is sought; and ‘equired, whether- lly decreed.on as to be done may be done s that the act required 0 far ee 2 persol Court, at th mn appointed by the Court, at the cost some othe Pere oxpenues incurred may be ascertain ne Mdgment debtor dy ae erase may be recovered as if they were included in the aj Pra a such manner as the Const! lectee. In which cases and how may a District Judge or an Additional District ional power? - 1) Cana party to a compromise decree challenge the same by way of appeal? ) Discuss the distinctions between appeal and revision. Judge ery Hy. Revisional power of District Judge or additional District Judge: ‘According to section 115, is ‘The Court of District Judge may, on the application or any party aggrieved, call for the of any suit or proceeding, in which an order has been passed by a Court of Join’ Dist Judge, Senior Assistant Judge or Assistant Judge from which no appeal lies; and if such ¢ appears to have committed any error of law resulting in an error in such order occasion failure of justice, the Court of District Judge may, revise such order and make such order thinks fit. A Court of Addition District Judge shall have all the powers of the District jay sub-section (2) in respect or revision case which may be transferred to it by the District Judy B. Whether a party to a compromise decree can challenge the same by way of appea) No, a party to a compromise decree cannot challenge the same by way of appeal. Becay according to section 96 (3), no appeal shall lie from a decree passed by the Court witht consent of parties. C.. Discuss the distinctions between appeal and revision: (a) An appeal lies only from the decrees and appealable orders, but a revision applicati lies from any decision of a court subordinate to the High Court Division, Court District Judge and Court of Additional District Judge from which no appeal lies tot High Court or to any subordinate court. (b) A right of appeal is a substantive right conferred by the statute, while the revisior power of the High Court Division, Court of District Judge and Court of Additia District Judge is purely discretionary. (©) An appeal abates if the legal representatives of a deceased party are not brought record within the prescribed period. A revision application, however, does not at in such cases. (d) The grounds for an appeal and revision are also different. A revision application! only on the ground of jurisdictional error. An appeal lies on a question of fact or of! or of fact and law. (¢) Filing of an application is not necessary in case of revision. An aggrieved patty invoke the jurisdiction of the High Court Division , Court of District judge and oe cee Judge by filing an application or the High Court Division? of Additional District Judge may exercise the rev jurisdiction even suo motu or the (of i i jeseckton eve te mot orth (Of its own motion). In case of appeal, on tht aggrieved party. al must be filed before the appellate court by[BJS Written Solution 7% Bangladesh Judicial | Service Exam. 2012 7a) Can more than one person join in a suit as plaintiff? If so, under what circumstance Kha is in possession of a piece of land ‘K’ impleading some persons as defendants omitting “Kha’. filed a suit for declaration of title to and recovery of khass possession in the said land. What is the remedy of “Kha”? b) Ina suit defendant by filing a written statement has taken a plea that the suit is bad for defect of parties suit naming who have been out in the, plaint. What steps the plaintiff may take? Discuss. ©) On the application of defendant, the curt directed the plaintiff to procedure a deed relating to the subject matter of a suit within a particular period for his inspection. But the plaintiff failed to comply with the said direction of the court. What would have been the consequences of such failure? Discuss stating the relevant provisions of law. ‘A. Whether more than one person can join in a suit as plaintiff? Who may be joined as plaintiffs: All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of of arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise. (Rule 1, Order 1) Who may be joined as defendants: All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged’ to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise. (Rule 3, Order 3) Fact: Kha is in possession of a piece of land ‘K’ impleading some persons as defendants omitting ‘Kha’. filed a suit for declaration of title to and recovery of khass possession in the said land. What is the remedy of “Kha”? Decision: here, kha may make an application for joinder of parties. According to rule 10(2) of Order 1, the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. B. Fact: In a suit defendant by filing a written statement has taken a plea that the suit is bad for defect of parties suit naming who have been out in the plaint. What steps the plaintiff may take? Decision: According to rule 13 of Order 1, objections can be raised on the grounds of varties According to rule 10, if the court is satisfied, then it can make an order for striking out of plaintiffs. According to rule 3 of Order 8, the defendant must deal in his written statement specifically with each allegation of fact of which he does not admit the truth. Here we can see that Defendant by filing a written statement has taken a plea that the suit is bad for the defect of parties. According to above provision, it was necessary for the defendant to specifically mention the name of the defective plaintiff but he did not do that. So, now misjoinder of p:TEBE ork Code of Ch Plaintiff may make an application denying the claims and may, ES hea Geiser oe lefendant are not clear and specific. So the suit is not bad for defect of partis ted the plaintiff to procedure a ‘na particular period for his ‘rection of the court, What . Fact: On the application of defendant, the court direc deed relating to the subject matter of a suit within af inspection. But the plaintiff failed to comply with the said di would have been the consequences of such failure? i Decision: According to rule 21 of Order 11, Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection ‘ef documents, he shall if a plaintiff, be Hable to have hie sult dlomiored for want of prosecution, and if\a defendant, (0 have bis defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made accordingly. If the suit is ‘dismissed according to this, an application for appeal may be made as per rule 1 of Order 43. 2. a) What are distinctions between the execution in case of cross decrees and cross claims under a decree? t b) What are the important matters to be considered by a court in passing 07 order for attaching a property before judgment and appointing a reciver? Discuss stating the relevant rovisions. ut Distinctions between the execution in case of cross decrees and cross claims under a decree: Execution in case of cross decrees: According to Rule 18 of Order 21,where applications are see to 2 Court for the execution of cross-decrees in seperate suits for the payment of two sums of mnoney passed between the same parties and capable of execution at the same time by such Court, then (a) if the two sums are equal, satisfaction shall be entered upon both decrees; and (b) if the two sums are unequal, execution may be taken out only by the holder of the decree for the larger sum and for so much only as remains after deducing the smaller ‘sum, and satisfaction for the smaller sum shall been tered on the decree for the larger sum as well as satisfaction of the decree for the smaller sum. Execution in case of cross-claims under same decree: According to Rule 19 of Order 21, where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then {@) if the two sums are equal, satisfaction for both shall be entired upon the decree; and, (b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only as remains after deducing the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree. B. What are the important matters to be considered by i a attaching a property before judgment and supolating asecetei passing an order for Order for attaching a property before judgment: See the solution 2008 (5). ‘Appointment of a receiver: ‘According to rule 1 of Order 40, Where it appears to the Court to be just and convenient, the Court may by order”a) appoint a receiver of any property, whether before or after decree; b) remove any person from the possession or custody of the property; ©) commit the same to the possession, custody or management of the receiver; and 4) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the Property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or __ Such of those powers as the Court thinks fit. Nothing in this rule shall authorises the Court to remove from the possession or custody of Property any person whom any part to the suit has not a present right so to remove. 3. When can the appellate court dismiss an appeal for default and hear an appeal exparte? What are the provisions for directly setting aside an order admit additional evidence? When may an appellate court pass an order for remanding a case? Discuss. Dismissal of an appeal for default: According to rule 17 of Order 41, where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. According to rule 18, Where on the day fixed, or on any other day to which the hearing maybe adjourned, it is found that the notice to the respondent had not been served in consequence of the failure to deposit, within the period fixed, the sum required to defray the cost of serving the notice, the Court may make an order that the appeal be dismissed. Hearing appeal ex parte: Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte. (Rule 17) Direct re-admission of appeal: According to Rule 19A of Order 41, Notwithstanding anything contained in rule 19 or any other law, the Court may, in order to avoid delay and expedite disposal, directly re-admit without requiring the appellant to adduce evidence to satisfy it about sufficient causes as required under rule 19: Provided that the appeal under this rule shall not be re-admitted unless :an application, supported by affidavit, praying for such re-admission is made to the Court within thirty days of the date on which the appeal is dismissed for default: Provided further that no appeal shall be re-admitted more than once under this rule. As soon as an order under sub-rule (1) is made to re-admit an appeal, the Court shall cause notice thereof to be served at the cost of the appellant upon the respondent who appeared in the appeal. Direct re-hearing of appeal: According to Rule 21A of Order 41, Notwithstanding anything contained in rule 21 or any other law, the Court may, in order to avoid delay and expedite disposal, directly re-hear an appeal which is heard ex parte; without requiring the respondent to adduce evidence to satisfy it about sufficient causes as required under rule 21, but requiring him to pay such cost not exceeding three thousand taka as it may deem appropriate and determine:in apP The Cot led that thirty su an appeal under this rule shall not be re-heard unl the rene AY affidavit, praying for suich re-hearing,is made to the Court W le nae which the ex parte decree is passed against the respondent? or thiS YT cause As soon evded further that no appeal shall be re-heard more than OnE Fe’ Coutt st Notice thant Order under sub-rule (1.) is made to re-hear an apPe ‘ereof to be served at the cost of the respondent upon the aPPS a hin al, slant. Provisions for di dence: irectly setting aside an order admit additional evi The parties to an appeal shall not be entitled to produce additional ev! ; documentary, in the Appellate Court. But if ibedto:stimlt evidence a) the Court frony whose decree the appeal is preferred has ref which ought to have been admitted, ot aor any witness fo be b) the Appellate Court requires any document to be produce’ p.crantial cause, the examined to enable it to pronounce judgment, or for any OS Cog, or witness to Appellate Court may allow such evidence or document 12 examined. Court Wherever additional evidence is allowed to be produced by an APPA shall record the reason for its admission. whether oral or the Court Order for remanding a case: Where the Court from whose decree an appeal is preferred has JiSPoC™ ay, if it thinks preliminary point and the decree is reversed in appeal, the Appellate TO oe tried in the fit, by order remand the case, and may further direct what issue oF HAN OC oon whose case s0 remanded, and shall send a copy of its judgment and order 19 te a number in decree the appeal is preferred, with directions to re-admit the suit undCt One eg the register of civil suits, and proceed to determine the suit; and the evide! ‘during the trial after during the original trial shall subject to all just exceptions, be evidence during remand. (Rule 23, Order 41) osed of the suit upon a 4. a) When can a Civil Court pass an order for holding local inspection and local investigation? Se b) Bring out the distinctions between a temporary injunction and ad interim injunction. What are the remedies the plaintiff may seek in a case when the defendant dispossesses him from the suit land violating an order of temporary injunction? Discuss with reference to the relevant provisions. Tt Local inspection: Rule 7 of Order 39 provides that the Court may, on the application of any party to a suit, and on such terms as it thinks fit, make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein. Local investigation: According to rule 9 of Order 26, In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of anyBJS Written Solution [29] The Code of Civil Procedure, 1908 property, or the amount or any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court within such time not exceeding three months as may be fixed by the Court: n Provided that the Court may, on the prayer of the Commissioner and on sufficient cause being shown, extend the time, B. Distinctions between a temporary injunction and ad interim injunctio: - Ad interim injunction is given at the very first day of filing an application for injunction without hearing the adverse party. Temporary injunction is given after hearing the both parties and taking evidences. Ad interim injunction lasts until the order of temporary injunction after hearing the both parties. Temporary injunction comes to an end after getting, permanent injunction or specified time determined by the Court. Remedies for violating an order of temporary injunction: According to Rule 2(3) of Order 39, In case of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release. No attachment under this rule shall remain in force for more than one year, at the end o which time, if the disobedience or breach continues, the property attached may be sold, anc out of the proceeds the Court may award such compensation as it thinks fit, and shall pay th: balance, if any, to the party entitled thereto. 5. a) What is meant by costs? When does a court make an order for compensatory cost and t what extent? b) Under what conditions how many adjournments can be allowed to a party by the cou in a suit at the peremptory hearing stage and before that? When a party fails to comply wit the Court’s order for payment of adjournment costs what may be the consequence? Has th affected party any remedy against such consequence? Discuss. Costs: Subject to such conditions and limitations as may be prescribed, and to the provisions of a1 law for the time being in force, the costs of an incident to all suits shall be in the discretion the Court, and the Court shalll have full power to determine by whom or out of what proper and to what extent such costs are to be paid, and to give all necessary directions for t purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar the exercise of such powers. Where the Court directs that any costs shall not follow the evi the Court shall state its reasons in writing. The Court may give interest on costs at any rate 1 exceeding six percent. per annum, and such interest shall be added to the costs and shall recoverable as such. (Section 35) Compensatory cost in respect of false or vexatious claims or defenses: If in any suit or other proceeding, including an execution proceeding, not being an apg any party objects to the claim or defense on the ground that the claim or defense, or anyBJS Written Solution B1) The Code of Civil Procedure, 1908 [ 8th Bangladesh Judicial Service Exam. 2013 a T. a) Pleading to state material facts and not evidence Explain. When and on what grounds a plaint may be amended? When may a Court refuse amendment of a plaint? b) What are the grounds of rejection of a plaint? Distinguish the effects of rejection and returning of a plaint. ‘A. Pleading to state material facts and not evidence: Amendment of pleading: See the solution 2007 and 2010 (1). Refusal of amendment of a plaint: The Indian Supreme Court has rightly observed in the case Ganga Bai v. Vijay Kumar “The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far reaching discretionary powers is governed by judicial considerations, and wider the discretion, greater ought to be the care and circumspection on the part of the court.” Generally in the following cases, leave to amend will be refused by the court: (i) Amendment introducing inconsistence case or changing the nature of the s Leave to amend will be refused if it introduces a totally different, new and inconsistent case or changes the fundamental character of the suit or defense. The test as to whether the amendment should be allowed is whether or not the party can amend his pleading without placing the other side in such a position that he cannot be recouped, as it were, by any allowance of courts, or otherwise. Whether or not the proposed amendment changes the character of the suit would depend on the facts and circumstances of each case considering the nature of the amendment sought. (ii) Amendment which is not necessary: An amendment should not be allowed where it is not necessary to determine the real question in controversy. Before allowing any amendment to the plaint, the court must come to a finding that such amendment is necessary for determining the real question in controversy between the parties. The “real controversy” test is the basic test and it is the primary duty of the court to decide whether the proposed amendment is necessary to decide the real dispute between the parties. (iii) Where by amendment plaintiff's suit would be wholly displaced: Amendment should not be allowed if the plaintiff's suit is wholly displaced (iv) Where amendment would prejudice the other side: Power of amendment should not as a rule be exercised where it would take away from a defendant a legal right which has accrued to him by lapse of time. (v) Where application for amendment is not bona fide: ‘An amendment cannot be allowed where the application for amendment is not made in good faith. As a general rule leave to amend ought not to be granted if the applicant has acted mala bide. Want of bona fide may be inferred from the circumstances of the case.