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AL AMEEN COLLEGE OF LAW PREPARATORY EXAMINATION V SEMESTER 3 YEAR LL. AND IX SEMESTER 5YEARS LL. (DECEMBER) CIVIL PROCEDURE CODE AND LIMITATION ACT DURATION: 3 HOURS MAX MARKS: 100 INSTRUCTIONS: 1. Answer all 5 Questions. 2. Figures to the right indicate marks. 3. One Essay type and one short note q...

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AL AMEEN COLLEGE OF LAW PREPARATORY EXAMINATION V SEMESTER 3 YEAR LL.B. AND IX SEMESTER 5YEARS LL.B. 2013-2014 (DECEMBER) CIVIL PROCEDURE CODE AND LIMITATION ACT DURATION: 3 HOURS

MAX MARKS: 100

INSTRUCTIONS: 1. Answer all 5 Questions. 2. Figures to the right indicate marks. 3. One Essay type and one short note question or problem from each unit has to be attempted. 4. Answer should be written either in English or Kannada completely.

UNIT-I Q.No. 1. (a) Explain the scope and object of Res-subjudice.

Marks: 15

OR What is a ‘Suit of civil nature” and state whether a suit regarding right to worship is a sit of civil nature. (b) Res judicata

Marks: 5

OR Placing of suing UNIT-II Q.No. 2. (a) State the essentials o a plaint and under what circumstances the plaint can be rejected by the court? Marks: 15

OR Explain the essential ingredients of summons. What are the different modes of service of summons to defendant? (b)distinguish between counter claim and set off.

Marks: 5

OR Distinguish between mis-joinder and non-joinder of parties.

UNIT-III Q.No. 3. (a)What are issues in suit? How are issues framed? What are the powers of the court to amend or strike out issues? Marks: 15 OR What is an exparte decree? State the remedies available against it. (b)Affidavit

Marks: 5

OR UNIT-IV Q.No. 4. (a) Define inter-pleader suit. Explain the conditions and procedure relating to an inter pleader suit. Marks: 15 OR Under what circumstances a reference can be made to the High court? (b)Commission. OR Temporary injunction.

Marks: 5

UNIT-V Q.No. 5. (a) “ Once the time has begun to run, no subsequent disability or inability stops it” Discuss. Marks: 15 OR Explain the circumstances in which the delay will be condoned under the limitation Act. (b) The court is closed on the last date of limitation period. Z seeks extension of limitation period on that ground. Will he succeed? Marks: 5 OR Legal disability.

AL AMEEN COLLEGE OF LAW PREPARATORY EXAMINATION III SEMESTER 3 YEAR LL.B. AND VII SEMESTER 5YEARS LL.B. 2013-2014 (DECEMBER) CRIMINAL PROCEDURE CODE 1973, JUVENILE JUSTICE (Care and Protection of Children) ACT AND PROBATION OF OFFENDERS ACT, 1958 DURATION: 3 HOURS

MAX MARKS: 100

INSTRUCTIONS: 1. Answer all 5 Questions. 2. Figures to the right indicate marks. 3. One Essay type and one short note question or problem from each unit has to be attempted. 4. Answer should be written either in English or Kannada completely.

UNIT-I Q.No. 1. (a)Explain the procedure to be followed in the trial of session case. Marks: 15 OR Explain the procedure of trial of warrant cases by Magistrate prescribed under Cr.P.C. (b) Write a note on rules relating to search and arrest Marks: 5

OR Distinguish between FIR and complaint

UNIT-II Q.No. 2. (a)what is bail? Explain the circumstances in which release on bail is mandatory. Marks: 15 OR Discuss the procedure to be followed by criminal courts in compelling the appearance of a person. (b)A is accused of an offence. The court has altered the charge without explaining it to him. A is convicted for the said offence. Is the conviction legal? Marks: 5 OR Proclamation and attachment of property UNIT-III Q.No.3. (a) Examine the applicability of the principle of double jeopardy under Criminal procedure code. Marks: 15 OR Explain the types of appeals in criminal cases. (b)Maintenance of wives Marks: 5

OR ‘A’ is charge before the Court of Session and convicted of the culpable homicide of ‘B’. Can ‘A’ may afterwards be tired on the same facts for the murder of ‘B’. UNIT-IV Q.No.4. (a) explain the provisions regarding suspension, remission and commutation of sentences under criminal procedure code. Marks: 15 OR Explain the provisions regarding the transfer of criminal cases as provided under the code of criminal procedure. (b)warrant of levy of fine. Marks: 5 OR Execution of death sentence. UNIT-V Q.No. 5. (a) Discuss 6the constitution and powers of Juvenile Justice Board. Marks: 15 OR State when a court may release offenders after admonition and on probation of good conduct. (b)Probation officer OR

Marks: 5

Bail to Juvenile.

AL AMEEN COLLEGE OF LAW MODEL ANSWER PAPER V SEMESTER 3 YEAR LL.B. AND IX SEMESTER 5YEARS LL.B. 2013-2014 (DECEMBER) CIVIL PROCEDURE CODE AND LIMITATION ACT DURATION: 3 HOURS

MAX MARKS: 100 UNIT-I

Q.No. 1. (a) EXPLAIN THE SCOPE AND OBJECT OF RES-SUBJUDICE. Marks: 15 SYNOPSIS: INTRODUCTION MEANING UNDER Section 10 OBJECT CONDITIONS CONCLUSION

INTRODUCTION: This section deals with stay of civil suits. It provides that no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties and that the court in which the previous suit is pending is competent to grant the relief claimed. MEANING UNDER SECTION 10: Section 10 reads as under:

“ No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or in any court beyond the limits of India established or constituted by the Central Government and having like jurisdiction, or before the Supreme Court”. OBJECT:  It is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon tow parallel litigations in respect of the same cause of action, the same subject matter and the same relief.  It obviates the possibility of two contradictory verdicts by one and the same court in respect of the same relief.  It protects a person from multiplicity of proceedings and avoids conflict of decisions.  It aims to avert inconvenience to the parties and gives effect to the rule of res-judicata. CONDITIONS: In order to attract this section, the following conditions needs to be satisfied: 1. There must be two suits, one previously instituted and other subsequently instituted. 2. The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit. 3. Both the suits must be between the same parties or their representatives. 4. The previously instituted suit must be pending in the same court in which the subsequent suit is brought or in any other court in India or in any court beyond the limits of India established or continued by the Central Government or before the Supreme Court.

5. The court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit. 6. Such parties must be litigating under the same title in both the suits. CONCLUSION: If a decree is passed in contravention of sectionn10 it is not a nullity and therefore cannot be disregarded in execution proceedings. It is only the trial and not the institution of the subsequent suit which is barred under this section. Hence, if the parties waive their right and expressly ask the court t proceed with the subsequent suit, they cannot afterwards challenge the validity of the proceedings.

WHAT IS A ‘SUIT OF CIVIL NATURE” AND STATE WHETHER A SUIT REGARDING RIGHT TO WORSHIP IS A SIT OF CIVIL NATURE. SYNOPSIS: INTRODUCTION JURISDICTION TYPES OF JURISDITION JURISDICTION OF CIVIL COURTS SUITS OF CIVIL NATURE CONCLUSION

INTRODUCTION: Whenever there is a right, there is remedy (ubi jus ibi remedium). The Indian legal system also adopts the same. In fact, right and remedy are but the two sides of the same coin and they cannot be dissociated from each other. Therefore, a litigant having grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. JURISDICTION: (SECTION-9)

Jurisdiction may be defined to be the power or authority of the court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it. Thus, jurisdiction of a court means the extent of the authority of a court to administer justice prescribed with reference to the subject matter, pecuniary value and local limits. But however the consent cannot confer nor take away jurisdiction of a court. The defect of jurisdiction goes to the root of the matter and strikes at the authority of the court to pass a decree. But if two or more courts have jurisdiction to try a suit, it is open for the parties to select a particular forum and exclude the other forums. Whenever the jurisdiction of the court is challenged, the court has inherent jurisdiction to decide the said question. KINDS OF JURISDCITION: 1. Territorial or local jurisdiction 2. Pecuniary jurisdiction 3. Jurisdiction as to subject matter 4. Original of appellate jurisdiction. JURISDCITION OF CIVIL COURTS: Under the Civil procedure code, a civil court has jurisdiction to try all suits of a civil nature unless they are bared. If a civil court has jurisdiction to try a suit two conditions have to fulfill:  The suit must be a civil nature; and  The cognizance of such a suit should not have been expressly or impliedly barred. The suit must be a civil nature:  The word civil has not been defined in the code but, according to dictionary meaning it pertains to private rights and remedies of a citizen as distinguished from criminal, political, etc.

 The word nature has been defined as the fundamental qualities of a person or thing; identity or essential character, sort, kind, character; hence it is wider in its content.  Thus the expression civil nature is wider than the expression civil proceedings.  Thus, a suit is of civil nature if the principal question therein relates to the determination of a civil right and enforcement thereof. It is not the status of the parties to the suit, but the subject matter of it determines whether or not the suit is one of a civil nature.  A suit in which the principal question relates to caste or religion is not a suit of civil nature. But if the principal question in the suit is of a civil nature and the adjudication incidentally involves the determination relating to a caste question or to religious rights and ceremonies, it does not cease to be a suit of civil nature and jurisdiction of a civil court is not barred.  The Explanation II has been added after the Amendment Act 1976. This Explanation II Specifically provides that the suit relating to religious office is maintainable whether or not it carries any fees or whether or not it is attached to a particular place.  Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of right. The cognizance of such a suit should not have been expressly or impliedly barred:  A litigant having a grievance of a civil nature has a right to institute a civil suit unless its cognizance is barred expressly or impliedly.  A suit is said to be expressly bared when it is barred by any enactment for the time being in force.  It is open to a competent legislature to bar jurisdiction of civil courts.

 But every presumption should be made in favour of the jurisdiction of a civil court and the provision of exclusion of jurisdiction of a civil court, the court will lean to an interpretation which would maintain the jurisdiction.  But if the remedy provided by a statute is not adequate and all questions cannot be decided by a special tribunal, the jurisdiction of the civil court is not barred.  A suit is said to be impliedly barred when it is barred by general principles of law.  Where specific remedy is given by a statute, it thereby, deprives the person who insists upon a remedy of any other form than that given by the statute.  Similarly, certain suits though of civil nature are barred from the cognizance of a civil court on the ground of public policy. Thus no suit shall lie for recovery of costs incurred in criminal prosecution or for enforcement of right upon a contract hit by section 23 of Indian Contract Act 1872.

(b) RES JUDICATA Marks: 5 Section 11: of the Civil procedure code embodies the doctrine of res-judicata or the rule of conclusiveness of judgment. According to this section “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. The doctrine of res-judicata is based on three maxims:-

 Nemo debet lis vexari prop una et eaden causa; no man should be vexed twice for the same cause.  Interest republicae ut sit finis litium: it is in the interest of the State that there should be an end to a litigation and  Res judicata pro veritate occupitur: a judicial decision must be accepted as correct. Thus, the doctrine of res judicata is the combined result of public policy reflected in maxims 2 and 3 and private justice expressed in maxim 1 and they apply to all civil and criminal proceedings. Otherwise there would be no end to litigation and no security for any person, the rights of persons would be involved in endless confusion and great injustice done under cover of the law. The principle is founded on justice, equity and good conscience. CONDITIONS:  The matter directly and substantially in issue in the subsequent suit or issue must be the same manner which was directly and substantially in issue either actually or constructively in the former suit.  The former suit must have been a suit between the same parties or between the parties under whom they or any of them claim.  Such parties must have been litigating under the same title in the former suit.  The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised.  The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit. SHORT NOTES: PLACING OF SUING:

Section 15 to 20 of the CPC regulates the forum for the institution of suits. The jurisdiction of the court to entertain, deal with and decide a suit may be restricted by a variety of circumstances and the first thing which is to determined is the place of suing.  Section 15- requires the plaintiff to file a suit in the court of the lowest grade competent to try it.  Section 16-18- deals with suits relating to immovable property.  Section19- applies to suits for compensation to person or to movable property.  Section 20- is a residuary section and covers all cases not dealt with by Section 15-19.  Section21- recognizes the well established principle that the defect as to territorial or pecuniary jurisdiction can be waived.  Section A- bars new suit for setting aside decree passed by a court on the ground of want of territorial jurisdiction. Every suit shall be instituted in the court of the lowest grade competent to try it. The underlying object is to see that the courts of higher grades shall not be over burdened with suits and to afford convenience to the parties and witness who may be examined by them in suits. But the rule is one of procedure only and not of jurisdiction and therefore, exercise of jurisdiction by a court of higher grade than is competent to try suit is a mere irregularity covered under this section. The code has been designed to secure that justice might be brought as near as possible to every man’s hearthstone and that the defendant should not be put to the trouble and expenses of travelling long distances in order to defend himself in cases in which he may be involved. UNIT-II Q.No. 2. (a) STATE THE ESSENTIALS OF A PLAINT AND UNDER WHAT CIRCUMSTANCES THE PLAINT CAN BE REJECTED BY THE COURT? Marks: 15

SYNOPISIS: INTRODUCTION ESSENTIALS OF A PLAINT REJECTION OF PLAINT CONCLUSION.

INTRODUCTION: According to Mogha “ Pleadings are statements in writing drawn up and filed by each party to a case stating what his contentions will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer. Further pleading is defined as plaint or written statement. The plaintiff’s pleading is his plaint, a statement of claim in which the plaintiff set out his cause of action with all necessary particulars and the defendant’s pleadings is his written statement, a defense in which the defendant deals with every material fact alleged by the plaintiff in the plaint and also states any new facts which tell in his favor. In total the whole object of pleadings is to bring the parties to definite issue and it diminish expense and delay and to prevent surprise at the hearing.     

Rules 1 to 8 of order 7 relate to particulars in a plaint. Rule 9 lays down procedure on plaint being admitted. Rule 10 provides for return of plaint. Rules 11to 13 deals with rejection of plaint. Rules 14-18 contains provisions relating to production of documents.

MEANING: a plaint is a statement of claim, a document, by presentation of which the suit is instituted. Its object is to state the grounds upon which the assistance of the court is sought by the plaintiff. ESSENTIALS OF A PLAINT: The plaint should contain the following particulars: Rules 1-8: i. ii. iii.

The name of the court in which the suit is brought. The name, description and place of residence of the plaintiff and defendant. The facts constituting the cause of action and when it arose.

iv. v. vi. vii. viii.

ix. x. xi.

xii.

xiii. xiv.

The facts showing that the court has jurisdiction. A statement of the value of the subject matter of the suit for the purpose of jurisdiction and court fee. The relief claimed by the plaintiff. Where the plaintiff or defendant is a minor or a person of unsound mind, a statement to that effect. Where the plaintiff files a suit in the representative capacity, the facts showing that the plaintiff has an actual interest in subject matter and that he has taken steps that may be necessary to enable him to file such a suit. If the suit is for recovery of money, the precise amount claimed. Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished. If the suit is for account or mesne profits or for movables in the possession of the defendant or for debts which cannot be determined, the approximate amount or value thereof. If the subject matter of the suit is immovable property a description of the property sufficient to identify it; e.g. boundaries, survey numbers, etc. The interest and liability of the defendant in the subject matter of the suit. If the suit is time barred, the ground upon which the exemption from the law of limitation is claimed.

REJECTION OF A PLAINT: The plaint shall be rejected in the following cases: a) Where plaint does not disclose cause of action: If the plaint does not disclose any cause of action, the court will reject it. To reject it on this ground the court must look at the plaint and nothing else. And even if the court comes to the conclusion that the allegations set out in the plaint are proved, the plaintiff would not be entitled to any relief. In such a case the court will reject the plaint without issuing summons to the defendants.

b) Where relief claimed is undervalued: Where the relief claimed by the plaintiff is undervalued and the valuation is not correct within the time filed or extended by the court, the plaint will be rejected. In considering the question whether the suit is properly valued or not, the court must confine its attention to the plaint only...