CRIMINAL PROCEDURE CODE, 1973:

ARREST

IMPORTANT SECTIONS:

INVESTIGATION:

What are the values of several of statements or reports prepared during the course of Investigation?

JURISDICTION:

COGNIZANCE:

What are the various kinds of Technical Bars for taking cognizance of offence?

Ans: They can be classified into two: Time limitations and other. The others can be either obtaining sanction or report by victim. The time limitation for taking cognizance is dealt under S.468 Cr.P.C

Note: on Commencement of period of limitation: 

1. On the date of offence or
2. First day of offence comes to know to the knowledge of person or police whichever is earlier.                                 3. When identity comes to the knowledge of person or police whichever is earlier
3. In section 472, the first day is excluded for continuing offences from every continuing moment.

LIMITATIONS TO TAKE COGNIZANCE:

CHARGE

What is the Procedure for Trial of Summons-cases by Magistrate?

Ans: Trial of Summons-cases: When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge. If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon.

If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent, thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall acquit the accused except some reasons. This rule applies to cases where the non-appearance of the complainant is due to his death.

In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.

S.256 Cr.P.C: If the complaint upon receipt of summons is called absent on the date fixed for the accused or any other matter for which matter is adjourned, the court can acquit the accused. This rule applies even for the non-appearance of the complaint due to his death.

S.249: Absence of complaint: If the complaint in a complaint case is called absent or didn’t turn before framing the charge, he can discharge the accused, provided offence alleged is a compoundable and non-cognizable case.  The two situations must be satisfied: compoundable and non-cognizable case.

The magistrate as S.258 Cr.P.C can stop the proceedings at any stage in the following circumstances: a) It must be a summons case b) It must be a case instituted otherwise than on complaint i.e., On a police report.

If such stoppage of proceedings is after the examination any of the witness it is called acquittal. If such stoppage is without any recording of any evidence it amounts to discharge.

Difference between acquittal and Discharge:

If the accused is set at liberty prior to recording of evidence, it is known as Discharge.

If the accused is set at liberty after recording of evidence, it is known as acquittal.

If the matter is ended in acquittal, he can’t be tried again. If accused discharged he can be tried by same court or its superior court.

Difference between 249 and 256: S.256 is applicable to both summons case and warrant cases and where as S.256 is applicable to summons cases only.

S.249 is applicable to cases whether it is either compoundable or non-cognizable and whereas S.256 is applicable in case of summons case.

It is irrelevant under S.256, whether offence is compoundable or non-compoundable.

S.257: A complaint in a complaint case can withdraw the case by showing sufficient grounds. Such withdrawal can be all or any of the accused in that case.  Upon such permission given by the court accused gets acquitted.

Difference between acquittal and Conviction: Conviction means the proof of guilt. Sentence means quantum of punishment awarded upon conviction.  It is mandatory to hear the accused on sentence in case of session’s case (235) and warrant cases (248). It is desirable in case of Summons case.

Summary Trials:  In summary trial unlike other trials there is no elaborated procedure to try the accused. It is a simple, quick and inexpensive procedure. This mode of trial can be adopted only by certain class Magistrates or Magistrates authorized by High court in following cases only: i) offences which are less than two years. ii) In following cases even if the punishment is more than two years but worth of property involved is only Rs.200/- court can conduct summary trial. They are: S.379, 380, 381, 411, 414, 454, 456, 504, 506 IPC, S20 of Cattle Trespass Act.

Summary Procedure: Basically in all summary trials the summons procedure is framed i.,e no requirement of framing charge, recording of substance of evidence. However, if the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. But in no case Magistrate can’t inflict punishment for a period more than three months upon finding the accused is guilty offence. Generally, in every summary trial record following particulars must be mentioned, namely:- (a) the serial number of the case: (b) the date of the commission of the offence; (c) the date of the report or complaint; (d) the name of the complainant (if any); (e) the name, parentage and residence of the accused; (f) the offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of sub-section (1) of section 260, the value of the property in respect of which the offence has been committed; (g) the plea of the accused and his examination (if any); (h) the finding; (i) the sentence or other final order; (j) the date on which proceedings terminated.

Another impressive feature of this trial is that accused need not come to court he can plead guilty through post or pleader or by person upon receipt of summons and pay fine as mentioned in the summons.  During the trial of case if the Magistrate is opinion that it undesirable to try the case under summary procedure he can convert it into any other manner as provided by code.

Write a note on Return of Property for Interim Custody?

Ans: Return of Property for Interim Custody: S.451 & 457 of Cr.P.C are the relevant provisions which deal with return of property for interim custody. S.451Cr.P.C deals with order for custody and disposal of property pending trial in certain cases. S.457 Cr.P.C of speaks about procedure to be followed by police upon seizure of property. Another distinction between both these sections is like this:

Under 457 1) Property has been seized by police officer. 2) Seizure is reported to the Magistrate. 3) The property so seized is not produced before the court during inquiry or trial and whereas under S.451 there is no deposit of property before court.

A plain reading of these two sections indicates that powers u/s.451, 457 Cr.P.C shall be exercised expeditiously and judiciously. If the property is not returned to its original owner the value of the property gets diminished and it’s a clog on property. Therefore, it is held that if there is a proper panchanama before handing over the property to its original owner towards interim custody, it can be used in evidence instead of its production of property during the trial. One important judgment pertaining to this issue which is delivered by Apex court in Sunder bha Ambalal Desi Vs. Gujarat 2003(1) ALD (CRL) 8 SC. Following are guide lines laid down: (a) Preparation of detailed panchanama of articles seized (b) taking photographs of such articles and a bond that such articles would be produced at the time of trial and (c) Taking proper security.

S.452 gives jurisdiction to court to order for disposal only at the conclusion of trial.

Write a note on Maintenance proceedings Under Cr.P.C?

Ans: Sections 125 to 128 of Cr.P.C.1973 operates against persons who neglect or refuse to maintain their dependent wives, children and parent. It applies person of all religions and have no relationship with the personal laws of the parties except divorced Muslim women. It is an enforcement of civil remedy by way of criminal machinery.

Conditions:   If the dependent is unable to maintain herself or himself, JMFC upon proof of such neglect or refusal pass an order for payment of maintenance. Dependent means wife, parent or child.

 Salient features of s.125 Cr.P.C:-

1. JMFC has power to pass order under this Section. JMFC order is not final for more maintenance parties can agitate before civil court.
2. Marriage must be valid one. 3. Children includes both legitimate and illegitimate.
3. Presumption of marriage can be raised in favour of wife u/s 50 of IEA.
4. Wife may be minor or major such allowance shall be payable from the date of the order or if so ordered from the date of application for maintenance.
5. If any person ordered, fails without sufficient cause to comply with the order any such Magistrate, may issue a warrant for levying the amount due in the manner provided for levying fines and may sentence such person accordingly u/s 125(3).
6. Time limitation is one year.

    8.In section 125(4) disqualifications from entitling maintenance are provided, they are as follows: (a) if she is living in adultery (b) without sufficient reason refuses to live with him or (c) living separately under mutual consent between husband and wife (d) when she is remarried.

9. Territorial jurisdiction for filing application U/S 125Cr.P.C proceedings may be taken against any person in any district: (a) where he is or (b) where he or his wife resides or (c) where he resided with his wife or as the case may be, the mother of the illegitimate child.
10. Evidence must be recorded in presence of respondent or his advocate. It must be recorded as summons case.
11. When there is wilful avoiding of summons, court can declare such person as exparty and proceed. 14. Exparty order can be seta side only on showing good ground within 90 days.
12. Court can order for costs also. 13.Court can issue warrant of imprisonment on failure to pay maintenance.
13. The person claiming maintenance must be unable to maintain him or herself.
14. Enquiry U/S 125-128 is not a trial. It can’t be considered as acquittal or conviction.
15. If marriage is void in view of S.5 and 11 of Hindu Marriage Act, 1955 is not entitle to relief U/S125.

21.Kuldeep Kour v/s Surinder singh: Sending defaulting husband to jail is only a mode or method of recovery and not a substitute for recovery of the maintenance allowance. Husband is not absolved from his liability to maintenance, the amount is still recoverable.

Inherent powers: The power of court to do anything to meet the ends of justice in the absence of express provision of law is called inherent powers. This power can be expressed only the H.Court under 482 Cr.P.C.

GENERAL PROVISIONS OF INQUIRE AND TRIALS:                        

Write a note on issues relating to Bail?

Misc:

In summons case substance of evidence can be recorded.

In Warrant cases as the examination of each witness proceeds, be taken down in writing either by the Magistrate himself or by his dictation in open Court. The same is the case with the trial before Court of Session.

S.280 Judge can record demeanour of witness (Non-Verbal Communication)

281. Record of examination of accused.
282. No formal proof of certain documents:- If the genuineness of document is not disputed it can be read in evidence without meeting S.67 IEA, provided that the Court may, in its discretion, require such signature to be proved.

In Criminal trial evidence shall be recorded in court in the presence of accused. It shall not be on affidavit except under S.138 NIAct and S.296 Cr.P.C

S.296. Evidence of formal character on affidavit.

298 talks about how to prove previous conviction or acquittal: It can be proved in the following ways: (a)            Certified copy of the court, under whose custody he had conviction or acquittal held. (b) in case of a conviction, either by a certificate signed by the officer in charge of the Jail in which the punishment is undergone.

299. Record of evidence in absence of accused:- (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial, such person for the offence complained of, may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

(2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India.

Write a note on Plea Bargaining?

Ans:Plea Bargaining- means concession given to convict with respect to sentence upon admission of guilt. Section 265-A TO 265-L have been added in the CR.P.C so as to apply the plea bargaining. Plea-bargaining is the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to the court approval. Therefore, it can be said that plea-bargaining refers to pre-trial negotiations between the defendant through his/her counsel and the prosecution during which the accused agrees to plead guilty in exchange for lesser punishment.

The salient features of plea-bargaining: 

1) It is applicable only in respect of those offences for which punishment of imprisonment is up to a period of 7 years. 

2) It does not apply where such offence affects the socio- economic condition of the country or has been committed against a woman or a child below the age of 14 years.  

3) The application should be filed by the accused voluntarily.

4) An accused must file an application for Plea-bargaining in the court in which such offence is pending for trial. 

5) The accused and prosecution both are given time to work out a mutually satisfactory disposition of the case, which may include giving compensation to the victim by the accused and other legal expenses incurred during pendency of the case.

6) Where a satisfactory disposition of the case has been worked out, the Court shall dispose of the case by sentencing the accused to one-fourth of the punishment provided or extendable, as the case may be for such offence.

7) The statement or facts stated by an accused in an application for plea-bargaining shall not be used for any other purpose other than for plea-bargaining.

8) The judgment delivered by the Court in the case of plea-bargaining shall be final and no appeal shall lie in any court against such judgment.

9) Three essentials work at the time of filing an application of plea-bargaining:

      a) Accused‘s voluntariness to plead guilty.        b) The statements or facts stated by an accused in the application for plea-bargaining should not be used for any other purpose except plea-bargaining.                                                                 c) It is a contractual agreement between the prosecution and the defendant regarding the disposition of criminal charge. However, it is not enforceable until a judge approves it.

CRIMINAL APPEALS:

1. I. At the outset, it apt to remind Certain points:

Hierarchy of courts: JMSC—JMFC—-Asst.Sessions/Sessions Court- H.C- S.Court.

Criminal Court has no inherent powers except for H.C u/S.482 Cr.P.C.

In Chapter.29 Of Cr.P.C, S.372 to 394 talks about criminal appeals.

1. The basic rule is there is no appeal unless provided. In following cases there no appeals:
2. H.C imposes imprisonment up to six months or fine Rs.1000/-.
3. Court of session imposes imprisonment up to three months or fine Rs.200/-.
4. MFC or JMSC imposes imprisonment fine of Rs.100/-.
5. Conviction is on plea of guilty except on legality of sentence (other than HC)

III.Procedure to appeal:In the event of acquittal or inadequate sentence  from any court, appeal lies to immediate Superior court. Appeal can be filed by victim also. It must be filed within ninety days(114LA) by state (is prosecuting agency) and thirty days by private complaint.  However, revision can be filed u/s.397 (90days). In the event of Conviction from any court, appeal lies to immediate superior court as matter of right. It must be filed within 30 days(A.115LA). Ex; S.498A IPC conviction from JMFC lies to Court of Session as a matter of right. If the appeal is to HC from any court of session sixty days (Art.115LA)

1. Bail issues:(S.389): It is 2 kinds i.e., Bail by sentencing court and appellate court.

Bail by sentencing court: It can grant if the convict is on appeal and he is sentenced to imprisonment for a term not exceeding three years or offence is a bailable one, and he is on bail. It is for limited period i.e., till the appeal is filed.

Appellate court: It can exercise the power to grant bail only if (i) the person asking for release on bail is convicted person ii) he is in confinement iii) his appeal against the conviction is pending. The appellate court in exercising its powers under S.389(1) can suspend the execution of sentence and conviction also. Under this section, it is irrelevant whether the offence involved is baialble or non-bailable.

1. Mode and manner of disposing appeal: Memo of appeal must be annexed with copy of judgment. It is duty on part of court to call of records and hear both parties before proceed to dispose the appeal.
2. Powers of appellate court: Grant bail, arrest the accused, receive additional evidence or direct the lower court to record the evidence, re-appreciate the evidence.

Options available to appellate court:

      a) Dismiss the appeal: If the court considers that there is no sufficient ground for interfering, dismiss the appeal.

     b) In case of Appeal from conviction: Court can reverse the finding and sentence and acquit or discharge the accused or order him to be retired by a competent court.

     i) the appellate court may alter the finding and maintain the sentence or

     ii) the appellate court may with or without altering the finding, alter the nature or extent or the extent or the nature and extent of the sentence so as to enhance or reduce the same(S.386(c))

   c) In case of appeal from acquittal: The Court may reverse such order and direct that further inquiry be made or that the accused be retried or committed for trial as the case may be, or find him guilty and pass sentence on him according to law(386(a)).

As to the exercise of power of the appellate court, the S.C in Sanwat Singh v State of Rajasthan has laid down three principles.

First, the appellate court has full powers to review the evidence upon which the order of acquittal is founded. Second, the principles laid down by the judicial committee of the privy council in Sheo Swarup V King of Emperor AIR 1934 PC 227(See below) afford a correct guide for the appellate court’s approach to case in disposing of such an appeal. Thirdly, the appellate court in coming to its conclusion should not only consider every matter on record having a bearing on the questions of fact and the reasons given by court below in support of its order of acquittal, but it should also express those reason to hold the acquittal was justified. The appellate court should deal with each one of the reason which promoted the trial court to record the acquittal and should point out how, if at all, those reasons were wrong or incorrect.

   d) In an appeal for enhancement of sentence.-    i) Court can reverse the finding and acquit or discharge the accused or order him to be retired by a competent court.

     ii) Court can alter the finding and maintain the sentence or

     iii) Court can with or without altering the finding, alter the nature or extent of the sentence so as to enhance or reduce the same(S.386(c))

      e) In an appeal from any other order.- The appellate court may in such a case alter or reverse such order (S.386(d))

      f) Consequential or incidental orders.- The appellate court may make any amendment or any consequential or incidental order that may be just or proper (S.386(e)).

      g) No dismissal of appeal for default or on the appeal becoming infructuous.- No provision in code dealing with this issue. Once, the court decides to dismiss an appeal summarily; it should dispose it of giving reasons for its conclusion except u/s. S.394.

Misc: Only reference and revision is there in Criminal law but not review. On death of accused appeal abates, however, interested party can continue it by impleading (S.394).

Revisional powers of HC(S.407) and sessions court(S.397) are concurrent.

Revision: To see that lowers working within the framework of law.  That subordinate criminal court does not exceed their jurisdiction, or abuse their powers vested in them by the code. They can be  exercised Suo- motu, or on the petition of any aggrieved party or even on the application of any other person.

Revisioanl powers are exercised only in cases where there is a glaring defect in the procedure or there is manifest error on point of law and consequently there has been a flagrant miscarriage of justice.

There is no abatement on the death of the petitioner.

S.397 to 405 deals with the powers of revision conferred on higher courts and the procedure to regulate these powers. These powers are very wide and discretionary in nature. However, there are certain limitations on these powers:

       a) IF there is appeal but no appeal is brought, ordinarily no proceedings by way of revision shall be entertained

       b) revisional powers shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry or trial.

       c) the revisional court is not authorized to convert a finding of acquittal into one of conviction

      d) A person is allowed to file only one application for revision either to the Court of Session or high court.

S.397 says the HC or Court of Session is empowered to call for and examine the record of any proceedings before any inferior court and satisfy itself as to the correctness, legality or propriety of nay order passed by the inferior court. If any defect, irregularity or illegality justifying, corrective action is found on the examination of the record, the subsequent sections namely 398 -401 empower the superior courts to pass suitable orders to remove the miscarriage of justice.   During the period of calling for records, the court can direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record.

The revisional powers shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry or trial.

S.404: When the record of any trial held by a metropolitan magistrate is called for by the high court or court of session u/s.397, the magistrate may submit with te record a statement setting forth the grounds of his decisions or order and any facts which he thinks material to the issue; and the court shall consider such statements before overulign or settinga side the said decision or order.

S.398: Power to order inquiry: On examining  any record u/s.397 or otherwise, the high court or court of session may direct the CJM or any magistrate to conduct inquiry into any complaint which has been dismissed u/s.203 or 204(4) or into the case of nay person accused of an offence who has been discharged:

Provided that no court shall make any direction under this section for inquiry into that case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made.

Thus powers exercisable under this section are limited to proceedings pending or concluded at the pre-stage charge.                                  .

 S.399: Sessions judge power of revision: It says the powers exercisable by session judge w.r.t to revision are same as that of high court u/s.401(1).  S.400 says the Additional session judge can exercise all the powers which a session judge can exercise.

S.401 sets out powers of revision and the limitations on such powers of the high court. 

The revisional powers are intended to be used by the high court to decide all questions as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed by any inferior criminal court and even as to the regularity of any proceedings of such inferior court.

The object of conferring revisional power on the high court is to clothe the highest court in a state with a jurisdiction of general supervision and superintendence in order to correct grave failure or miscarriage of justice arising from erroneous or defective orders.

The error or defect may arise from misconception of law, irregularity of procedure, misreading of evidence, misapprehension or misconception about law or facts, mere perversity or even undue hardship or leniency.

S.401(1) confers on the HC all the powers of appellate court as mentioned in Ss386, 389, 390 and 391 and it also empowers the high court to direct tender of pardon to the accused person as contemplated by S.307. apart from these powers the code has given additional powers in espect of specific cases falling u/s.106(4), 356(4), 357(4), 359(2), 360(4) etc.

Any order passed in any proceedings under the code, except when it is specifically barred such as an interlocutory order, is revisable by the high court u/s.401.

S.403 is an exception to rule audi alterm partem. The section 401(2) is imperative and can be considered as an exception to S.403.

S.401(2) says court while passing order under S.401 shall hear parties to the case.

S.401(5) says if the party under the erroneous belief that there is no appeal prefers revision court can convert it into an appeal.

Introduction:

Changes are made in IPC, Cr.P.C and Indian Evidence Act. The changes are made by the President of India by way of Ordinance in exercise of his powers under A.123 (1) of Constitution.

AMENDMENTS TO THE INDIAN PENAL CODE:

1. In S.100, the term Grievous hurt is added.
2. Another S.166A is added. As per this section if any person authorized to investigate refuses to register FIR and fails to obey any direction given by law for the purpose of investigation of any offence or any other matter especially for offences like S.354, 354A, 354B, 354C, 354D (2), 376, 376A, 376B, 376C, 376D, 376E, shall be punished with imprisonment for a term which may extend to one year or with fine or with both.
3. A new section called 326A and 326B are added.

S.326A: Voluntarily causing grievous hurt by use of acid, etc: Not less than ten years but which may extend to imprisonment for life and with fine which may extend to ten lakh rupees. The fine shall be given to victim.

S.326B: Voluntarily throwing or attempting to throw acid: with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine. The fine shall be given to victim.

4. The Punishment for S.354 is enhanced to imprisonment of either description for a term of one year which may extend to five years and shall also be liable to fine.

5. The new sections called S.354A, 354B, 354C and 354D are inserted. New offenses are introduced like Sexual Harassment, Assault or use of criminal force to woman with intent to disrobe, Voyeurism, Stalking.

6. S.354A defines Sexual Harassment (SH): The following any of the act is said to be SH:

(i) Physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) A demand or request for sexual favours; or   (iii) making sexually coloured remarks; or

(iv) Forcibly showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

(2) The Punishment for offences specified in clause (i) or clause (ii) of sub-section (1) shall be punished with RIwhich may extend to five years, or with fine, or with both.

(3) The punishment for offences specified in clause (iii) or clause (iv) or clause (v) of sub-section (1) shall be punishable with imprisonment of either description that may extend to one year, or with fine, or with both.

7. Assault or use of criminal force to woman with intent to disrobe

354B. Assaulting or using criminal force on women with an intention to disrobing or compelling her in any naked place shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years and with fine.

8. Voyeurism: 354C. Watching or capturing the image of women who is engaging in any private act where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator.

The punishment for 1^st conviction shall not be less than one year, but which may extend to three years, and shall also be liable to fine.

The Punishment for 2^nd conviction or subsequent conviction is with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.

9. Stalking: 354D. (1) Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking. However the following are exceptions:

(i) that it was pursued for the purpose of preventing or detecting crime and the person accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the state; or

(ii) that it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii) that in the particular circumstances the pursuit of the course of conduct was reasonable.

Punishment: Imprisonment of either description for a term which shall not be less than one year but which may extend to three years, and shall also be liable to fine.’.

10. S.370 IPC is replaced with S.370 and S.370A IPC.

S.370 defines Trafficking.

S.370 Says for the purpose of exploitation if any person (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by––

First.–– using threats, or

Secondly.–– using force, or any other form of coercion, or

Thirdly.–– by abduction, or

Fourthly.–– by practising fraud, or deception, or

Fifthly.–– by abuse of power, or

Sixthly.–– by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.

Explanation 1.–– The expression “exploitation” shall include, prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the forced removal of organs.

Explanation 2.–– The consent of the victim is immaterial in a determination of the offence of trafficking.

Punishment: RI for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine. IF more than one person is involved it shall be punishable with RI for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

IF the offence involves the trafficking of a minor, it shall be punishable with RI for a term which shall not be less than ten years but which may extend to imprisonment for life.

IF the offence involves the trafficking of more than one minor at the same time, it shall be punishable with RI for a term which shall not be less than fourteen years but which may extend to imprisonment for life.

IF a public servant including police officer is involved in the trafficking of a minor then such public servant shall be punished with imprisonment for life, which shall mean the remainder of that person’s natural life.

If a person is convicted of the offence of trafficking of minors, on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life.

11. Employing of a trafficked person.

370A. (1) IF any person despite knowing that a child has been trafficked, employs such child in any form of labour, shall be punished with RI for a term which shall not be less than five years but which may extend to seven years, and with fine.

(2) IF a person despite knowing that an adult has been trafficked, employs such adult for labour, shall be punished with RI for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.’.

12. S. 375, 376, 376A, 376B, 376C & 376D IPC are replaced with S.375, 376, 376A, 376B, 376C and 376D. S.375 defines Rape t:

‘375. A person is said to commit “Rape” if that person––

(a) Penetrates his penis, to any extent, into the vagina, mouth, urethra or  anus of another  person or makes the person to do so with him or any other  person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of another person or makes the person to do so with him or any other person; or

(c)  manipulates any part of the body of another person so as to cause penetration into the vagina, urethra, anus or any part of body of such  person  or makes the person to do so with him or any other person; or

(d)  applies his mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person;

(e) touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person, except where such penetration or touching is carried out for proper hygienic or medical purposes under the circumstances falling under any of the following seven descriptions:––

First:- Against the other person’s will.

Secondly:-  Without the other person’s consent.

Thirdly:- With the other person’s consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or of hurt.

Fourthly:- When the person assaulted is a female, with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes to be lawfully married.

Fifthly:- With the consent of the other person when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by that person personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that action to which such other person gives consent.

Sixthly:-With or without the other person’s consent, when such other person is under eighteen years of age.

Seventhly. –– When the person is unable to communicate consent.

Explanation 1.–– Penetration to any extent is “penetration” for the purposes of this section.

Explanation 2.–– For the purposes of this section, “vagina” shall also include labia majora.

Explanation 3.–– Consent means an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific act:

Provided that, a person who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception.–– Sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not Rape.

Punishment for Rape.

13. 376. (1) Whoever, except in the cases provided for by sub-section (2), commits Rape, shall be punished with RI of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever,––

(a) being a police officer, commits Rape –

(i) within the limits of the police station to which such police officer is appointed; or

(ii) in the premises of any station house; or

(iii) on a person in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits Rape on a person in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or

(c) being a member of the armed forces is in the area by virtue of deployment by the Central or a State Government, commits Rape; or

(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits Rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits Rape on a person in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards, the person assaulted, commits Rape on such person; or

(g) commits Rape on a woman knowing her to be pregnant; or

(h) commits Rape on a person when such person is under eighteen years of age; or

(i) commits Rape, where the person assaulted is incapable of giving consent; or

(j) being in a position of economic or social dominance, commits Rape on a person under such dominance; or

(k) commits Rape on a person suffering from mental or physical disability; or

(l) while committing Rape causes grievous bodily harm or maims or disfigures or endangers the life of a person; or

(m) commits persistent Rape,

shall be punished with RI for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

Explanation 1.–– For the purposes of this sub-section,––

(a) “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children;

(b) “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;

(c) “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861;

(d) “armed forces” means the naval, military and air forces and includes any member of the Armed Forces.

Explanation 2.–– Where a person is subjected to Rape by one or more persons in a group of persons acting in furtherance of their common intention, each of the persons in the group shall be deemed to have committed Rape within the meaning of this sub-section.

14.Punishment for causing death or resulting in persistent vegetative state of the victim.

376A. Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with RI for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life, or with death.

15. Rape by husband upon his wife during separation.

376B. IF husband commits Rape on his own wife, who is living separately under a decree of separation or under any custom or usage, without her consent, shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.

16. Sexual intercourse by a person in authority

376C. Whoever,––

(a) being in a position of authority or in a fiduciary relationship; or

(b) a public servant; or

(c) superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women’s or children’s institution; or

(d) being on the management of a hospital or being on the staff of a hospital,

and abuses such position or fiduciary relationship to induce or seduce any person either in the first mentioned person’s custody or under the first mentioned person’s charge or present in the premises and has sexual intercourse with that person, such sexual intercourse not amounting to the offence of Rape, shall be punished with RIof either description for a term which shall not be less than five years but which may extend to ten years, and shall also be liable to fine.

Explanation 1: – In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (c) of section 375.

Explanation 2: – For the purposes of this section, Explanations 1 & 2 to S.375 also applicable.

Explanation 3.–– “Superintendent”, in relation to a jail, remand home or other place of custody or a women’s or children’s institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of which such person can exercise any authority or control over its inmates.

Explanation 4.–– The expressions “hospital” and “women’s or children’s institution” shall respectively have the same meaning as in Explanation 1 to sub-section (2) of section 376.

17. Rape by gang:376D. Where a person is sexually assaulted by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of Rape, regardless of gender and shall be punished with RI for a term which shall not be less than twenty years, but which may extend to life and shall pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim.

Explanation.–– For the purposes of this section, imprisonment for life shall mean imprisonment for the remainder of that person’s natural life.

18.Punishment for repeat offenders:S.376E says for every subsequent offence: 376E. Whoever has been previously convicted of an offence punishable u/S.376 or section 376A or section 376C or section 376D and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life, which shall mean the remainder of that person’s natural life or with death.’

19. The punishment for S.509 IPC is enhanced to simple imprisonment for a term which may extend to three years and shall also be liable to fine.

AMENDMENTS TO THE CODE OF CRIMINAL PROCEDURE, 1973

1For S.54A, the following proviso is inserted. It says: ––  If the person identifying the arrested person is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate. He shall take appropriate steps to ensure that such person identifies the person arrested using methods that the person is comfortable with. This whole identification process may be videographed.

2. 1For S.154, the following provisos must be inserted. It says: ––

IF the information is by the woman against whom an offence u/s.326A, 326B, 354, 375, 376, 376A, 376B, 376C, 376D, 376E, 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded by a woman police officer. Further, such woman shall be provided legal assistance and also the assistance of a healthcare worker or women’s organisation or both:

Provided further that––  IF such above said offense are committed against mentally or physically disabled person, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of a special educator or an interpreter. This process must be videographed.  It is also the duty of the police officer to get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.

4. Changes to S.160 Cr.P.C: The Statements of persons who are under the age of eighteen years or above the age of sixty-five years or a woman or a physically or mentally disabled person shall be recorded at the place of residence.

5. Changes to S.161: The statements of victim for the following offences shall be recorded by woman police officer: u/s.326A, 326B, 354, 375, 376, 376A, 376B, 376C, 376D, 376E, 509 of the Indian Penal Code.

6. Changes to S.164: For the above offenses the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police. If such person is physically or mentally disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement. The same shall be recorded with the assistance of an interpreter or special educator, may be videographed.

The statement recorded of physically or mentally disabled shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.

7. Insertion of new section 198B: In case of offence under S.376B IPC, where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the accused husband.
8. Provisio is added to S. 273: IF the victim who is giving evidence is less than 18 years is alleged to have been subjected to Rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.
9. Amendment of section 327: In section 327 of the Code of Criminal Procedure, in sub-section (2), for the words, figures and letters “trial of rape or an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code”, the words, figures and letters “trial of Rape or an offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code” shall be substituted.

There is a change to 1^st Schedule of Cr.P.C in view of this Amendment.

AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872

1. S.53 A is inserted: It says Evidence of character or previous sexual experience not relevant in certain cases.

“53A. In a prosecution for an offence under section 354, section 354A, section 354B, section 354C, sub-section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.”.

2.S.114 A is inserted: It says Presumption as to absence of consent in certain prosecution for Rape.

S.114A: In a prosecution for Rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l) or clause (m) of sub-section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the other person alleged to have been sexually assaulted and such other person states in that person’s evidence before the court that such person did not consent, the court shall presume that such person did not consent.

Explanation.–– In this section “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (c) of section 375 of the Indian Penal Code.’.

3.S.119 A is inserted. It talks about a situation when a Witness is unable to communicate verbally.

S.119:- A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence:

Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of a special educator or interpreter in recording the statement, and such statement may be videographed.”.

4.For S.146 Proviso is added:

   “Provided that in a prosecution for an offence under sub-section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.

INDIAN CONTRACT ACT, 1872:

List out certain General rules relating to Contract?

Write a note on essential elements of Contract?

Ans:   In common usage there is no big difference between agreement and contract. However, in the eye of law the difference is striking and significant difference to note.  Any understanding between two or more can be called as an agreement but not contract. In order to call any agreement as contract, it must possess following essentials:

1) Parties to agreement must competent and not disqualified by law

2) The purpose of agreement must be lawful and entered with an intention to create legal relations. 

3) Parties must be entered into agreement with free consent

4) Such agreement must not be declared void by law

4) It must comply with legal formalities like: writing, Stamp, registration etc., Agreement required to be in writing or stamped or registered or attested only if it is demanded by law. 5) Agreement must be for consideration

6) Conditions imposed under agreement must be certain and possible to perform.

7) There must be offer by one party and acceptance by other party.

If any of the above rules not satisfied the agreement does not become a contract.

Write a note on rules relating to offer and Acceptance?

Ans: For every contract there must be at least two parties, one making an offer or proposal and another accepting it.  The legal rules relating to proposal are:

1. Proposal conveys a promise to do or to abstain from doing anything, with a view to obtaining the assent of the person to whom proposal is made to such act or abstinence. If the proposal doesn’t involve a promise in law, its acceptance cannot mature into a promise.
2. The proposal must be capable of creating legal relations. It must be such that, when it is accepted, a contract is formed. No contract can come into existence, if the terms are vague, indefinite or illusory, or unenforceable at law.

The legal rules relating to acceptance are:  

1) It must be communicated to offeree.

2) It must be absolute & unqualified,

3) It must be according to the mode prescribed or usual mode.

4) It can’t come before offer is made.

S.4 talks about Communication, acceptance and revocation of offer:

Who are competent to enter into contract?

Competence of parties to contract: Competence refers to power of parties to enter into contract. Capacity of a party is an essential element of a valid contract.

According to Sec.11, every person is competent to contract, who is of the age of majority, sound mind, not expressly disqualified.

Consequences if contract is entered with minor, lunatic, unsound mind?

Position of Minors Agreements:

1. An agreement with or by a minor is void and in operative abinitio i.e., from the beginning: All agreements with minors are void ab-initio i.e., from the beginning. The relevant case law is Mohiri bibi Vs. Dharma Das Ghosh.
2. He can be a promise or a beneficiary: a minor is incapable to enter into a contract but he can always be a beneficiary in a contract. Such contracts may be enforced at his option, but not at the option of the other party.  Ex: L Who is aged 17 years, agreed to purchase a second hand car for Rs.7,000/- from m and paid 1,000/- rupees as advance with the promise that he will pay the remaining amount the next day.  When L went with the money the next day M said that he has changed his mind and is ready to return the advance.  Held, the M cannot avoid the contract but if L chooses he may.
3. His agreement cannot be ratified by him on attaining the age of majority

Write a note on consideration?

Consideration: S.10 ICA says Consideration is one of the essential elements of a contract. According to S.25 of ICA an agreement without consideration is void.

S.2(d) ICA defines consideration. It says: When at the desire of the promisor, the promisee or any other person has done or abstained from doing, does or abstains from doing, promises to do or abstain from doing something, such act, abstinence or promise is called consideration for the promise.

(a) Consideration must pass at the desire of the promisor only, that is an act or abstinence must be done at the desire of the promisor. It is done at the instance of a third party or without the desire of promisor, it will not be a valid consideration.

Ex: A saves B’s goods from the fire without being asked for it. A cannot demand payment for it.

(b) It may move from the promisee or any other person: Consideration may move from the promisee or any other person. It means as long as there is a consideration, it is immaterial, who furnishes it. Thus in India there is no privity of consideration. Ex: Mother gifted property to defendant by deed stipulating that she would give annuity to plaintiff. Defendant held liable to pay annuity to plaintiff. 

(c) Consideration may be past, present or future

(d) Act, abstinence or promise constitutes consideration: Consideration must be of some value, not necessary in monetary from, always.

(i) Forbearance to sue is a valid consideration: Plaintiff has a right of action against the defendant but on a promise by the defendant, he refrains from bringing the action. It applies only if the claim is immediately due. An agreement to compromise a bonafide action pending in the court is a valid consideration.

Consideration need not be adequate: Section.25, Explanation (2) says an agreement to which the consent is freely given is not void merely because the consideration is inadequate, though it must have some value in the eye of law.  However, it can be considered whether contract is outcome of free consent or not.

Agreement without consideration is void and Exceptions to this rule:

S.25 of ICA says an agreement without consideration is void. However, they are some well-recognized exceptions to this rule. They are:

(a) A written registered agreement based on natural love and affection between near relatives is enforceable even without consideration.

(b) A contract of agency

(c) S.25 Explanation (1) says a completed gift. In this case there need not be nearness of relationship or natural love and affection between the donor and donee.

(d) A promise to pay for a Past voluntary service

(e) A promise by debtor to pay a time-barred debt is enforceable provided it is made in writing &signed by the debtor or his agent.

(f) Charitable Subscriptions.

Privity of contract: Stranger to a contract: Only parties to the contract can enforce contractual obligations, but no other, even if it solely for the benefit of third party. It is known as privity of contract. But it has no applicability in India. It was held by the S.C in M.C.Chacko Vs. State Bank of Travancore. Thus a person who is not a party to the contract can enforce contractual obligations. The following are the situations:

(a) The beneficiary may enforce a contract though he is a stranger to the contract creating trust.

 (b)Where a an agreement is made in connection with marriage and a provision is made for the benefit of a person, he may take advantage of the agreement although he is not a party to it. 

(c) If a provision is made in a partition or family arrangement for maintenance or marriage expenses of female members, such members though not parties to agreement can sue on the footing of the agreement. 

(d) If a charge is created in favour of a stranger in respect of a specific immovable property.

(e)Acknowledgment or estoppel 

(f) Covenants running with the land

Consent: Two or more person agreeing about same thing in same sense.

Free consent:  Consent is said to be free if the approval of the parties is not affected by: (1) Coercion (Sec.15) (2) Undue Influence (Sec.16) (3) Fraud (S.17) (4) Misrepresentation (S.18) (5) Mistake (S.20, 21, 22).

If the consent to the proposal has been through any of the above means, the contract become voidable at the option of the party whose consent has been so obtained. Contract resulted without free consent is Voidable contract except in case of Mistake of fact.

 Coercion: Committing or threatening to commit any act forbidden by the IPC or unlawful detaining or threatening to detain any property, to the prejudice of any person, with an intention to get approval of the party to a contract is called Coercion. Even the threat to commit suicide amounts to coercion.

Undue Influence- Sometimes the relationship between the parties is such that one party is in a position to influence the will of another.  In such a case undue influence is said to have been employed. Sec(16) defines undue influence as “A contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. The following relationships usually raise a presumption of undue influence viz,. Parent and child, Guardian and ward, Trustee and beneficiary, Religious adviser and disciple, Doctor and Patient, Solicitor and client, Finance and Financer.

Misrepresentation: S.16 ICA deals with it. Misrepresentation is a statement of fact which one party makes in the course of negotiations to another with an intention to induce the other party to enter into a contract.  Representations may be expressed by words spoken or written or implied from the behaviour of the parties.

Fraud: An intentional material representation of a fact with an intention to induce a party to enter into a contract and act upon it. Due to which, party acted upon it and suffered an injury.

S.17ICA deals with it. The following acts committed by a party to a contract with an intent to deceive another party or to induce him to enter into the contract are also called as frauds:

(i) A false suggestion known to be false or not believed to be true

(ii) The active concealment of a fact, with knowledge or belief of the fact

(iii)A promise not intended to be performed,

  (iv) Doing any other act fitted to be deceive

(v) Doing any such act or omission as the law specially declares to be fraudulent.              

Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud unless the circumstances of the case reveal:

(a) That it is duty of the person keeping silence to speak; or

(b) his silence is, in itself equivalent to speech. 

In either case of misrepresentation or fraud the aggrieved party can:

(a) Avoid or rescind the contract (Voidable).

(b)Accept the contact but insist that he shall be placed in the position in which he would have been if the representation made had been true (rescission).

Mistake – kinds of Mistake: Section.20,21,22 of ICA deals with Mistake. Mistake may be defined as an erroneous belief about something. It can be either of fact or law. Mistake of fact occur either due to both parties or one of the party. S.20 deals with bilateral mistake. S.22 deals unilateral mistake. S.21 deals with mistake of law.  Mistake of law is not an excuse. However, mistake of foreign law is treated as mistake of fact.

Bilateral Mistake: If either party to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void. However, an erroneous opinion as to the value of thing which forms the subject-matter of the agreement, is not to be a deemed a mistake as to a matter of fact.

Explanation: Mistake must be mutual. A unilateral error due to one’s own stupidity, ignorance, carelessness doesn’t effect. It was his duty to know or he has means of knowledge, knowledge will be imputed to him in law debarring him from avoiding the contract.

Ex: X sold the property to Y upon the belief that he is the owner of the property. The same was also got registered and developed by Y believing that X is the owner of the property. Subsequently, it was it came to light that Aneel is the actual owner of the property. Since X and Y are mistaken belief as to the title of X, the sale becomes void. However, u/s.65 of ICA, Y recover purchase price from the defendant.

Unilateral Mistake: If one of the party to the contract is mistaken regarding the subject matter or understanding the terms of the agreement, the mistake is unilateral. It is not allowed as a defence to avoid the contract. But in certain cases if the consent is given under a mistake which is so fundamental to the agreement that the agreement is declared void.

The following are the situations: (a) If there is a mistake as to the identity of the person contracted with.           (b) If there is a mistake as  to the nature of the contract. Ex: If a person signing a document of a different class. A old man having poor eye sight endorsed a Cheque thinking that it was a guarantee. It is not a contract as the mind of the signer didn’t accompany the signature.

According to S.23 ICA the consideration or object of an agreement is lawful, unless- it is forbidden by law; or is of such a nature that if permitted it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the court regards it as immoral or opposed to public policy. Such agreements are voidabintio.

List out agreements declared voidable under Contract Act and HMA.

List agreements declared void under Contract Act and Hindu marriage Act:

Void agreements are unenforceable in the court of law. Many provisions of the contract Act expressly declared which are void agreements.  They are: S.10, 20, 22, 23, 25 to 30, 34, 35, 36, 56. As per S.64 & 65: If the agreement is discover void (S.64) or voidable(S.65) contract is rescinded, the party who receives benefit shall compensate the other party or bound to restore the benefit received.

Conditional contract: Performance of contract depends upon future uncertain event. It is called Contingent Contract. It can be happening or non happening.

Ex: A Contracts to pay B Rs.1000/- if B’s house is burnt. This is a contingent contract.

S.32: Event Happening: Performance can be demanded in the event of happening uncertain future event.

If the event becomes impossible such contracts becomes void.

Ex: A promises to pay Rs.10,000/- if the ship reaches Mumbai port on or before 31/5/2014. If the ship reaches before 31/5/14 contract can be enforced.

If the ship reaches after 31/5/14 or Sunks: It is void.

S.33: Event Non-Happening: Performance can be demanded in the event of non-happening uncertain future event. If the event becomes impossible such contracts becomes valid. Ex: A promises to pay Rs.10,000/- if the ship doesn’t reach Mumbai port on or before 31/5/2014. If the ship reaches after 31/5/14 contract can be enforced – Valid.  If it reaches before  31/514 contract can’t be enforced Void.

If there occurred an event which makes it impossible to return prior to 31/5/14- Contract is enforceable. If the ship reaches before 31/5/14 or Sunks: It is valid.

S.35: Performance of contract depends upon happening or non-happening of an even within the time fixed, contract becomes void if the even doesn’t happen.

Contract performance can also be enforced if before the time fixed, occurrence event become impossible.

S.36: If condition imposed is impossible to happen, it is a void condition.

Write a note on Wagering Agreement?

Ans: 1. A wager is a promise to pay money or money’s worth on the happening or non-happening of an uncertain event.

2. A contingent contract need not necessarily be a wager. Thus we can say that all wagering agreements are contingent but all contingent contracts are not wager.
3. In case of a wagering agreement promise must be mutual.
4. Example. In wagering agreement A agrees to pay B 20 rupees if it rains on Monday and if it does not rain B will pay 20 rupees to A. In the above example there is mutuality of agree­ment but this mutuality of promises is not necessary in case of a contingent contract.
5. In a wagering agreement there is no independent interest apart from the money to be won or lost.

Example: A promises to pay Rs. 100 to B if it rains on Monday. It is a wagering agreement as A has no independent interest.

6. In a wagering agreement determination of an uncertain event is the main condition of the contract.

Who has to perform the promise?

Promisor or his legal representative can perform the contract. However, if contract only promisor shall perform the contract, he shall alone perform the contract.

If the promise accepts performance from third party, he can’t later seek its enforcement from third party. In case contract has to be performed by several promissors, promise may compel any one to perform the promise. (Joint liability)

Ex: Three taking debt from one.  One of the joint promissory who performed the contract can seek other promissors to compensate him to contribution.

 How to perform the promise?

S.46: If the time is not specified for the performance of the contract, it can be performed within reasonable time.  S.47: If time is specified at any time during usual hours.

S.48: If the promise is to be performed on a certain day and the promissor has not undertaken to perform it without application by the promise, it is the duty of the promise to apply for the performance at a proper place and time within the usual business hours.

S.49: If the promise is to be performed without the application of the promisee, and no place is fixed for the performance of it, it is the duty of the promisee to apply for the performance to appoint a reasonable place for the performance of the promise.

S.50: The performance of any promise may be made in any manner or at any time which the promise prescribed or sanctions.

Time is the essence of Contract (S.55): In a contract if time is specified for the performance of contract + Parties intention is that contract must be performed within the stipulated time= Such contract is called as time is the essence of contract.  Intention can be gathered from the terms of contact. It is a voidable contract.

When performance in case of Reciprocal promises:

Ans:  a) Willful prevention: If the performance of promise depends upon another and same is prevented by another, he is exempted from performance.

     b)  Failure to do some positive condition agreed upon by parties: If the performance of promise depends upon promise of another and same is not performed, the other party is exempted from performance. In both cases (S.53 & 54) compensation can be claimed.

Difference between S.53 & 54: In both the case other person didn’t perform his part of contract. However, reasons for such non-performance are different and person entitled for compensation are different. Under S.53 it is due to willful prevention to perform and whereas under S.54 such non-performance other is due to failure to do some positive condition agreed upon.  The other important difference is that under S.53, party who is prevented to perform will be given compensation and whereas under S.54 who is failed to perform compensation shall give compensation.

Whether performance of promise can be demanded in case contract consists of legal and illegal promises?

Ans: This is dealt under S.57, 58. They say merely because a contract consists of promise of which some are legal and remaining are illegal. The same is the case with alternative promise. The part to the extent is legal is valid. The illegal agreement is void.

Ex (S.57): A and B agree that A shall sell B a house for 10,000 rupees, but that, if B uses it as a gambling house, he shall pay A 50,000 rupees for it. The first set of reciprocal promises, namely, to sell the house and to pay 10,000 rupees for it, is a contract. The second set is for an unlawful object, namely, that B may use the house as a gambling house, and is a void agreement.

Ex (S.58): A and B agree that A shall pay B 1,000 rupees, for which B shall afterwards deliver to A either rice or smuggled opium. This is a valid contract to deliver rice, and a void agreement as to the opium.

What Contracts that need not be performed?

Ans: The following contracts need not be performed.  They are dealt under S.37, S.56, 62, 67, 63.

S.37:  If the performance is dispensed or exempted by law.

S.38: If the promise refuses to accept the performance, promisor need not perform.

S.39: Promisee may put an end to contract, if the promissory refused to perform or failed to perform.

S.56: a) An agreement to do an impossible act is void.

     b) Contract to do an act afterwards becoming impossible or unlawful (DOF)

S.62: a) Parties agree to substitute a new contract, b) Parties to contract rescind or alter it.

S.63: Promisee may dispense with or remit, wholly or in part the performance of the promise made to him. It may extend the time for such performance or may accept, instead of it any satisfaction which he thinks fit.

Write a note on Quasi Contracts?

Ans: The concept of quasi contracts is dealt under S.68 to 72.

S.68: If a person under obligation or to a person who can’t enter into contract is supplied with Necessaries suited to his condition in life, The person who has furnished such supplied must be reimbursed from the property of that person.

S.69: Person who is interested in payment of money which another is bound to pay.

S.70: Obligation of person enjoying benefit of non-gratuitous act:  New Model car.

S.71: Responsibility of finder of goods.

Appropriation of debts (Several debts):  S.58 if a person owes several distinct debts to same person money paid shall be applicable as per direction of the debtor. If not indicated, they apply as per order in time including time barred debts. If neither party indicated, court would apply in order of time It can also be applied to a debt even though it is barred by limitation. If the debts are of equal standing, the payment shall be applied in discharge of each proportionally.

Agreement to do impossible act-

The following agreements or contracts need not be performed:

1) An agreement to do an act impossible in itself is void.

2) Contract to do act afterwards becoming impossible or unlawful

3) A contract to do an act which, after the contract is made, becomes impossible by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.

If one person has promised to be something which he knew or, with reasonable diligence, might have known, and which the promisee did not know to be impossible or unlawful, such promisor must make compensation to such promise for any loss which such promisee sustains through the non-performance of the promise.

Illustrations

(a) A agrees with B to discover treasure by magic. The agreement is void.

b) A and B contract to marry each other. Before the time fixed for the marriage, A goes mad. The contract becomes void.

(c) A contracts to marry B, being already married to C, and being forbidden by the law to which he is subject to practise polygamy. A must make compensation to B for the loss caused to her by the non-performance of his promise.

Comment: Doctrine of frustration: Contract whose performance is possible, at the beginning, becomes either impossible or unlawful, due to a subsequent event, such a situation is often referred as frustration of contract or Doctrine of frustration. It has been aptly explained by Viscount Simon LC in Satyabrat Ghosh Vs. Mugneeram Bangur.

The grounds of frustration are as follows:  (a)Destruction of the subject matter                                         (b)Change of circumstances             (c) Non-occurrence of contemplated event       (d) Death or incapacity of the party (e) Government of legislative intervention (f)Intervention by war.

Breach of Contract:

S.73: The court in the event of breakage of contract can award damages. The court while awarding damages would take following issues into consideration:

1) Loss or damage that would arouse in the usual course of thing because of such breach.

2) The loss or damage that would occur, which parties had knowledge at the time of entering into contract itself.

The above rules are laid down by Court of England in Hadley v. Bexendale, 9 Ex 742. The object of this rule is that damages cannot include compensation for any remote and indirect loss or damages even if it is due breach of contract.

The same rules will apply with respect to quasi contracts upon assumption that parties having knowledge of loss or damage occur in the event of breakage of contract or violation of condition of contract.

S.74: If the contract stipulates amount as penalty for its violation in the event of breach of contract the court can award such amount as damages or reasonable compensation.  Thus court has discretion to award either of the one.

   INDEMNITY AND GUARANTEE:

There are sections twenty three sections spread over S.124 to 147 of the Act.

Contract of Indemnity:  As per Section 124 of the ICA, the contract of indemnity is defined as “a contract by which one party promises to save other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person’.

Ex: Suppose you are hired by a newspaper to write articles for them as a freelancer. Typically, your contract would have an indemnity clause so that if you write something against a very important person and that person files a suit against the newspaper for defamatory material, the newspaper can show the indemnity clause that you signed, protecting them from any form of loss caused due to your conduct. Then, the onus of fighting the defamation suit becomes your responsibility. A person who promises to bear the loss is known as indemnifier and the person whose loss is covered is known as indemnified. These types of contracts are mainly formed between insurance companies and their customers.

Contract of Guarantee: As per S.126, of the Act, a contract of guarantee is defined as, “a contract to perform the promise, or discharge the liability of a third person in case of his default.” This type of contract is formed mainly to facilitate borrowing and lending money.

The three parties involved in this type of contract are:

Surety: is the person by whom the guarantee is given.

Principal Debtor: is the person from whom the assurance is given.

Creditor: is the person to whom the guarantee is given.

Differences between Contract of Indemnity and Guarantee:

The following are few important distinctions between a contract of indemnity & contract of guarantee:

1. Number of Parties: In a contract of indemnity only two parties are involved, whereas in a contract of guarantee, three parties are involved.
2. Purpose: A contract of indemnity is formed to provide compensation of loss. There is an agreement to bear loss, in the event of loss. A contract of guarantee is formed to give assurance to the creditor in lieu for his money. It’s an assurance to perform the contract.
3. Nature of Liability: In a contract of indemnity, the indemnifier is the sole person who is held liable. In a contract of guarantee, the liability is shared by the surety and principal debtor.  A Contract to perform the promise, or discharge the liability, of a third person in case of his default is called Contract of Guarantee.
4. Surety has the right to sue the third party (Principle Debtor) directly. The Law puts him in the position of Creditor. Whereas in Contracts of Indemnity, the Indemnifier cannot sue the third party in his name. He has to sue in the name of the Indemnity-holder or after obtaining the rights from him.
5. Anything done, or any promise made, for the benefit of the principal debtor, may be a sufficient consideration to the surety for giving the guarantee. The guarantor need not personally derive any benefit from the guarantee.
6. The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract. The creditor can straightway proceed against the guarantor without first proceeding against the principal debtor. The surety however may restrict his liability to part of the Principal debtor’s liability by contract. Surety’s liability is distinct and separate

Continuing Guarantee: A Guarantee which extends to a series of transactions is called a continuing guarantee. A continuing guarantee may at any time be revoked by the surety, as to future transactions, by notice to the creditor. Any variance, made without the surety’s consent, in the terms of the contract between the principal debtor and the creditor, discharges the surety as to transactions subsequent to the variance.

Rights of a surety: The rights of sureties can be classified into two kinds. One is against is creditor and other is against the principal debtor.

As against the Creditor:

S.133: If the creditor shall not vary terms of the contract between the creditor and the principal debtor without the surety’s consent. Any such variance discharges the surety as to transactions subsequent to the variance. However, if the variance is for the benefit of the surety or does not prejudice him or is of an insignificant character, it may not have the effect of discharging the surety.

Sec. 134:- The creditor should not release the principal debtor from his liability under the contract. The effect of the discharge of the principal debtor is to discharge the surety as well. Any act or omission on the part of the creditor which in law has the effect of discharging the principal debtor puts an end to the liability of the surety.

Sec. 135: – If an agreement is made between the Creditor and Principal debtor for compounding the later’s liability or promising him extension of time for carrying out the obligations or promising not to sure, discharges the surety unless he assents to such a contract.

Sec. 139: – The surety is discharged if the creditor impairs the surety’s eventual remedy against the principal debtor.

As against the Principal Debtor:

Right of subrogation:- The surety on payment of the debt acquires a right of subrogation.

S.140:- The surety cannot claim the right of subrogation to the creditor’s securities, if he has signed up as a security for a part of the agreement and security has been held by the creditor for the whole debt.

Surety obtained under following cases is invalid:

Guarantee obtained by means of misrepresentation made by the creditor (S.142 part-I).

Guarantee though obtained with his knowledge and assent but concealing a material part of the transaction, is invalid (S.142 part-II).

Guarantee obtained by means of keeping silence as to material circumstances (S.143).

If a person gives a guarantee upon a contract that the creditor shall not act upon it until another person has joined in it as co-surety, the guarantee is not valid that other person does not join (S.144).

Miscellaneous:

S.145: There is an implied promise by the principal debtor to indemnify the surety and on its basis the latter is entitled to recover from the former whatever sum the latter had rightfully paid under the contract of guarantee; C.K. Aboobacker v. K.P. Ayishu, AIR 2000 Ker 29 (NOC).

S.146: In the absence of the contract to the contrary Co-sureties are liable to contribute equally.

S.147: Co-sureties who are bound in different sums are liable to pay equally as far as the limits of their respective obligations permit.

 BAILMENT:

Bailment: It is a kind of legal relationship where physical possession of personal property, is transferred from one person (the ‘bailor’) to another person (the ‘bailee’) who subsequently has possession of the property. It arises when a person gives property to someone else for safekeeping or for doing specific duty with respect to that property. Further, upon accomplishment the goods must be returned or otherwise disposed of according to the directions of the bailor (S.148).

Ex: Giving your coat to washer man. The person delivering the goods is called the Bailor. The person to whom they are delivered is called the Bailee.

It is different from contract of sale or gift  as it only involves the transfer of possession and not its ownership. Though in lease where possession of the property is handed over to the lessee, there is a transfer of right of enjoyment but bailee can’t do so in the case of Bailment.

S.149: The goods are deemed to have delivered to bailee, if they are put in his possession or any person authorized by bailee.

S.150: It is the duty of the Bailor to disclose the material defects of the goods bailed which materially interfere with the use of them, or expose the bailee to extraordinary risk. If bailor didn’t make such disclosure, he is responsible for damage arising to the bailee directly from such faults.

S.151. The bailee is under an obligation to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quantity and value as the goods bailed.

S.152: In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would under similar circumstances.  However, bailee is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in section 151 unless there is a special contract in this regard (S.152).

S.153: The contract of bailment is voidable at the option of the bailor, if the bailee does any act with regard to the goods bailed, inconsistent with the conditions of the bailment.

S.154: Bailee is liable to pay compensation for the damage caused if the goods bailed are not used according to the conditions of the bailment.

Ex: (a) A lends a horse to B for his own riding only. B allows C, a member of his family, to ride the horse. C rides with care, but the horse accidentally falls and is injured. B is liable to make compensation to A for the injury done to the horse.

S.155: If the bailee, with the consent of the bailor, mixes the goods of the bailor with his own goods, the bailor and the bailee shall have an interest, in proportion to their respective shares, in the mixture thus produced.

 S.156: If the bailee, without the consent of the bailor, mixes the goods of the bailor with his own goods and the goods can be separated or divided, the property in the goods remains in the parties respectively; but the bailee is bound to be bear the expense of separation or division, and any damage arising from the mixture.

S.157: If the bailee, without the consent of the bailor, mixes the goods of the bailor with his own goods in such a manner that it is impossible to separate the goods bailed from the other goods, and deliver them back, the bailor is entitled to be compensated by the bailee for the loss of the goods.

 S.158: If by the conditions of the bailment, the goods are to be kept or to be carried, or to have work done upon them by the bailee for the bailor, and the bailee is to receive no remuneration, the bailors shall repay to the bailee the necessary expenses incurred by him for the purpose of the bailment.

S.159: The lender of a thing for use may at any time require its return, if the loan was gratuitous, even though he lent it for a specified time or purpose. But if, on the faith of such loan made for a specified time or purpose, the borrower has acted in such a manner that the return of the thing lent before the time agreed upon would cause him losses exceeding the benefit actually derived by him from the loan, the lender must, if he compels the return. indemnify the borrower for the amount in which the loss so occasioned exceeds the benefits so derived.

S.160: It is the duty of the bailee to return, or deliver according to the bailor’s directions, the goods bailed, without demand, as soon as the time for which they were bailed has expired, or the purpose for which they were bailed has been accomplished.

S.161: Bailee’s responsibility when goods are not duly returned.—If by the fault of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time.

S.162: A gratuitous bailment is terminated by the death either of the bailor or of the bailee.

S.163: In the absence of any contract to the contrary, the bailee is bound to deliver to the bailer, or according to his directions, any increase or profit which may have accrued from the goods bailed.

Illustration: A leaves a cow in the custody of B to be taken care of. The cow has a calf. B is bound to deliver the calf as well as the cow to A.

S.164: The bailor is responsible to the bailee for any loss which the bailee may sustain the reason that the bailor was not entitled to make the bailment, or to receive back the goods, or to give directions, respecting them.

S.165: If several joint owners of goods bail them, the bailee may deliver them back to, or according to the directions of, one joint owner without the consent of all in the absence of any agreement to the contrary.

S.166: If the bailor has no title to the goods, and the bailee, in good faith, delivers them back to, or according to the directions of the bailor, the bailee is not responsible to the owner in respect of such delivery.¹

S.167: If a person, other than the bailor, claims goods bailed he may apply to the court to stop delivery of the goods to the bailor, and to decide the title to the goods.

S.168: The finder of goods has no right to use the owner for compensation for trouble and expense, voluntary incurred by him to preserve the goods and to find out the owner; but he may retain the goods again the owner until he receive such compensation; and where the owner has offered a specific required for the return of goods lost, the finder may sue for such reward, and may retain the goods until he received it.

S.169: If the thing which is commonly the subject of sale is lost, if the owner cannot with reasonable diligence be found, or if he refuses upon demand, to pay the lawful charges of the finder, the finder may sell it –

(1) When the thing is in danger of perishing or of losing the greater part of its value, or

(2) When the lawful charges of the finder, in respect of the thing found, amount to two-thirds of its value.

Right to Lien: S.170: If the bailee has in accordance with the purpose of the bailment, rendered any service involving the exercise of labour or skill in respect of the goods bailed he has in the absence of a contract to the contrary, a right to retain such goods until he receives due remuneration for the services he has rendered in respect of them.

Illustrations

(a) A delivers a rough diamond to B, a jeweller, to be cut and polished, which is accordingly done. B is entitled to retain the stone till he is paid for the services he has rendered.

(b) A gives cloth to B, a tailor, to make into a coat. B promises A to deliver the coat as soon as it is finished, and to give a three months credit for the price. B is not entitled to retain the coat until he is paid.

S.171: Bankers, factor, wharfingers, attorneys of a High Court and policy brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other person have a right retain, as a security for which balance, goods, bailed to them, unless is an express contract to that effect.

PLEDGE

Definition of terms Pledge, Pawnor and Pawnee (S.172):   The term pledge means bailment of goods as security for payment of a debt or performance of a promise. The bailor is in this case called Pawnor. The bailee is called Pawnee.

Pawnee’s rights:

Right to retain: (S.173): In order secure the debt or performance of promise Pawnee has right to retain the goods pledged. Further, such right can be exercised even to secure interests of the debt and all necessary expenses incurred by Pawnee in respect to the possession or for the preservation of the goods pledged.

This right to retain is can’t be exercised with respect to other goods even though pledged to same Pawnee unless there is a contract to the contrary. However, in the absence of contract to the contrary court shall presume that it extends to subsequent advances made by the Pawnee (S.174).

Further, Pawnee is entitled to receive from the pawnor extraordinary expenses incurred by him for the preservation of the goods pledged (S.175).

Pawnee’s right where pawnor makes default: If the pawnor makes default in payment of the debt, or performance, at the stipulated time, or the promise, in respect of which the goods were pledged, the pawnee may bring as suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security; or he may sell the thing pledged, on giving the pawnor reasonable notice of the sale (S.176 part-I).

If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater that the amount so due, the pawnee shall pay over the surplus to the pawnor (S.176 part-I).

Defaulting pawnor’s right to redeem (S.177): If a time is stipulated for the payment of the debt, or performance of the promise, for which the pledged is made, and the pawnor makes default in payment of the debt or performance of the promise at the stipulated time, he may redeem the goods pledged at any subsequent time before the actual sale of them; but he must, on that case, pay, in addition, any expenses which have arisen from his default.

Pledge by mercantile agent(S.178):  If a mercantile agent is in possession of goods or the documents of title to goods, any pledge made by him, when acting in the ordinary course of business of a mercantile agent, is valid.  However, the possession of the agent is with the consent of the principal and he is authorized by contract to pledge (including at the time of pledge) the goods and agent must act in good faith.

Pledge by person in possession under voidable contract (S.178A): If the pawnor has obtained possession of the other goods pledged by him under a contract voidable under section 19 of section 19A, but the contract has not been rescinded at the time of the pledge, the pawnee acquired a goods title to the goods, provided he acts in good faith and without notice of the pawnor’s defect of title.

S.179: If the right of the pawnor is limited in the goods bailed, the pledge is valid to the extent of that interest.

S.180: If a third person wrongfully deprives the bailee of the use of possession of goods bailed, or does them any injury, the bailee is entitled to use such remedies as the owner might have used in the like case if no bailment has been made; and either the bailor or the bailee may bring a suit against a third person for such deprivation or injury.

S.181: Whatever is obtained by way of relief of compensation in any such suit shall, as between the bailor and the bailee, be dealt with according to their respective interests.

LAW OF AGENCY:

                    The law of agency is an area of commercial law dealing with a set of contractual, quasi-contractual and non-contractual relationships that involve a person, called the agent, who is authorized to act on behalf of another (called the principal) to create a legal relationship with a third party. The agent is, thus, required to negotiate on behalf of the principal or bring him and third parties into contractual relationship.

The common law principle in operation is usually represented in the Latin phrase, qui facit per alium, facit per se, i.e. the one who acts through another, acts in his or her own interests and it is a parallel concept to vicarious liability in which one person is held liable in criminal law or tort for the acts or omissions of another.

There are fifty sections under law of Agency: (S.182 to 232)

 Definition of Agent and Principal:  S.182 says an agent is a person who is employed to do any act for another or to represent another in dealing with third person.  The person who is so represented as Principal.

Who may employ agent: S.183 says every person who attained majority and is sound mind can be employed as agent.  However, if a minor or unsound mind is appointed as agent, agent is not responsible between the act of such minor agent and principal (S.184).  An agent can be appointed either orally or by way of writing (S.186). In case of express it must be in writing and whereas in case of implied it can be inferred from such facts and circumstances (S.187).

S.185 says in a contract of agency consideration is not required.

Powers of agent: 

 a) Agent has authority to do every lawful thing which is necessary in order to do such act. Similarly, in case of a person who is acting as agent is conducting business, he has authority to do every lawful thing necessary for the purpose of conducting such business. Further, all the acts that can be usually done in the course of conducing such person (S.188).

  b) Second, in case of emergency he can do such act, which he would in his own case, to prevent any financial loss (S.189).

 c) An agent can’t appoint sub-agent. However if the trade permits or agency is of such nature, sub-agent can be appointed (S.190). The term sub-agent means a person employed by and acting under the control of, the original agent (S.191).

 d) Agent is responsible to the principal for acts of the sub-agent. The sub-agent is responsible to agent for his acts. However, in case of fraud or willful wrong sub-agent is responsible to principal (S.192).

 e) If sub-agent is appointed without the authority of principal, such agent is responsible for the acts of such sub-agent, to third parties and principal (S.193).

 f) If an agent is authorized to name another person to act for principal, the person so appointed by agent is not a sub-agent; he is called as agent (S.194). In selecting such agent for principal, the agent is bound to exercise same discretion as a man of ordinary prudence (S.195).

 g) If a person acts on behalf of another, but without his knowledge or authority, such another person may ratify it. If it is ratified, he is called as agent. Such ratification can be done either expressly or impliedly (S.196 & 197).

h) If the knowledge of the facts is materially defective, ratification is not valid (198).

  i) If part of the act is done by agent is not authorized but transaction is ratified, it is deemed that the unauthorized part is also ratified (S.199).

  j) If ratification of unauthorized act can’t injure third person. An act done by one person on behalf of another, without such other person’s authority, which, if done with authority would have the effect of subjecting a third person to damages, or of terminating any right or interest of a third person, cannot, by ratification, be made to have such effect (S.200).

 k) A minor in India can’t ratify, after attaining majority. That is because a void agreement cannot be ratified. Ratification may be express or implied. Ratification, when valid operates retrospectively. When time is limited for doing ac act, the ratification must be before the expiry of that time. When no time is fixed, the ratification must be within a reasonable time.

Termination of agency: An agent’s authority can be terminated at any time. If the trust between the agent and principal has broken down, it is not reasonable to allow the principal to remain at risk in any transactions that the agent might conclude during a period of notice.

S.201 says an agency is terminated in the following ways:

a) If the principal revokes agent authority,

b) The agent renouncing the business of the agency,

c) The business of agency is completed;

d) The death of principal or agent or any one of them becomes unsound mind, the principal becoming insolvent.

e) The agreement between parties.

f) The efflux of lien, the subject matter ceasing to exist, the principal losing his control over the subject matter.

When agency can’t be revoked: As per S.202 says if agent’s authority is coupled with interest it can’t be revoked. In other words, if the agent himself has interest in the property which forms the subject-matter of the agency, the agency can’t be terminated unless there is an express contract to the contrary.

S.205, if the agency is for a fixed period, the principal cannot terminate the agency before the time expired, except for sufficient cause. If he does, he is liable to compensate the agent for the loss caused to him thereby. The same rules apply where the agent, renounces an agency for a fixed period. Notice in this connection that want of skill, continuous disobedience of lawful orders, and rude or insulting behavior has been held to be sufficient cause for dismissal of an agent.

Further, reasonable notice has to be given by one party to the other; otherwise, damage resulting from want of such notice, will have to be paid (s.206). As per s. 207, the revocation or renunciation of an agency may be made expressly or impliedly by conduct. The termination does not take effect as regards the agent, till it becomes known to him and as regards third party, till the termination is known to them (s.208).

Time of revoking agent’s authority: This is dealt under S.203, 204 & 210.

S.203 says The principal may revoke the authority given to agent at any time before the authority has been exercised by agent. However, principal cannot revoke the agent’s authority after it has been partly exercised, so as to bind the principal (section 204),

If an agent’s authority is terminated, it operates as a termination of subagent also (section 210).

Agent’s duty towards principal (S.211 to 221):

S.211: Agent is bound to conduct business according to the directions given by the principal and in the absence of directions as per customs prevailing. If any loss is sustained agent must make it good to his principal and if any profit accrues, he must account for it.

S.212:  Agent has to discharge his duties with skill, care and due diligence. He shall make compensation to his principal in respect of the direct consequences of his own neglect, want of skill or misconduct.

S.213: An agent is bound to render proper accounts to his principal on demand.

S.214: Agent in case of difficulty to use all reasonable diligence in communicating with his principal and in seeking to obtain his instructions.

S.215: If an agent deals on his own account in the business of the agency, without first obtaining the consent of his of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transaction, if the case shows either that any material fact has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him.

Principal duty to agent (S.222 to 225):

The employer is under an obligation to indemnify the agent for the consequences of all lawful acts done by agent in exercise of the authority conferred upon him (S.222) and similarly for the acts done in good faith (S.223). However, employer is not liable to indemnify the agent even though is to do a criminal act (S.224). The principal must make compensation to his agent in respect of injury caused to agent by the principal’s neglect or want of skill (S.225).

Effect of agency on contracts with third person (s.226 to 238):

Contract entered by agent is treated like as if contract entered by principal himself (S.226) and same is the case with the notice issued by agent (S.229).

If the agent entered into contract beyond his authority, if such contract can be separated from exceeded part, part within the authority can be enforced (S.227). If it can’t be separated, the principal is not bound to recognize the transfer (S.228).

As per S.230, Agent cannot personally enforce contracts entered by him on behalf of his principal. He is also personally not bound by them. However, the following are exception:

1) If there is contract to the contrary

2) If the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad.

3) If the agent does not disclose the name of his principal; and

4) If the principal, though disclosed, cannot be sued.

5) The undisclosed principal can seek for the enforcement of contract. The other contracting part has same rights against the principal. However, if the agent wouldn’t have entered into contract had the principal is known, he can refuse to fulfill the contract (S.231).

Rules relating to Undisclosed Principal:

Undisclosed Principal: Meaning: The anonymous party represented by an agent, authorized to act on the behalf of the principal. The actions of the agent then are legally binding upon the principal.

Rules:

1) An undisclosed principal can enforce only such rights and obligations that subsist between agent and principal (S.232).

2) In cases where the agent is personally liable, a person dealing with him may hold either him or his principal, or both of them (S.233).

3) If contacting party induces that agent (or principal) the agent (or principal) is liable, later he can’t retract (S.234).

4) Pretended agent is liable to make compensation for the loss caused to the contracting party (S.235).  Pretended agent means a person untruly representing himself to be the authorized agent of another. A person, with whom a contract has been entered into in the character of agent, is not entitled to require the performance of it if he was in reality acting, not as agent, but on his own account (S.236).

5) If an agent without authority, done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts or obligations, if he has by his words or conduct induced such third persons to believe that such act and obligations were within the scope of the agent’s authority (S.237).

6) Misrepresentations made, or frauds committed, by agents acting in the course of their business for their principals, treated as if they are made by the principal. However, if they do not fall within their authority, do not affect their principals.

Miscellaneous:

1) If an agent, without the knowledge of his principal, deals in the business of the agency on his own account instead of on account of his principal, the principal is entitled to claim from the agent any benefit which may have resulted to him from the transaction (S.216).

2) Agent is bound to pay to his principal all sums received on his account (S.218).

3) However, an agent may retain, out of any sums received on account of the principal in the business of the agency, all moneys due to himself in respect of advances made or expenses properly incurred by him in conducting such business, and also such remuneration as may be payable to him for acting as agent(S.217).

4) Similarly, he can detain money towards remuneration, if there is no contract to the contrary (S.219).

5) In the absence of any contract to the contrary, an agent has right of lien over the goods, papers, and other property, whether movable or immovable, of the principal received by him, until the amount due to himself for commission, disbursements and services in respect of the same has been paid or accounted for to him(221).

6) An agent who is guilty of misconduct in the business of the agency is not entitled to any remuneration in respect of that part of the business which he has misconducted (220).

                TRANSFER OF PROPERTY ACT, 1882

List out certain General rules relating to transfer of immovable Property?

TRANSFER OF PROPERTY ACT (Problems and Solutions)

CIVIL PROCEDURE CODE, 1908:

CIVIL SUIT – ADJUDICATORY PROCESS

INTERLOCUTORY PETITION IN A CIVIL SUIT ADJUDICATORY PROCESS:

Civil Procedure Code, 1908: CPC, 1908 contains 158 sections, 51 Orders and One schedule

Definitions—

(1) Code includes rules.

 (2) Decree:   It’s a formal expression of an adjudication given by court which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.

Following are also called as Decrees: i) It shall include the rejection of a plaint

ii) Determination of any question within S.144.

Following are not called as Decrees:

(a) any adjudication from which an appeal lies from an order or          b) any order of dismissal for default.

Decree can be either preliminary or final. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. A decree can be partly preliminary and partly final.

Decree-holder (3): means any person in whose favour a decree has been passed. It also means any person in whose favour an order capable of execution has been made.

District (4): means the local limits of the jurisdiction of a principal civil court of original jurisdiction (hereinafter referred as District court) and includes the local limits of the ordinary civil jurisdiction of a high court.

Foreign court (5): To call any court as foreign court it must meet two conditions:  a) It must situate outside India b) It must not be established or continued by the authority of India.

Foreign judgment (6): means the judgment of a foreign court

Government pleader(7): includes any officer appointed by the state government to perform all or any of the functions expressly imposed by this code on the government pleader and also any pleader acting under the directions of the government pleader.

High court (7-A); India (7-B);

Judge (8): Presiding officer of a civil court

 Judgement S.2 (9): Judgement means the statement given by the judge on the grounds of a decree or order. Every judgment should contain: a) a concise statement of the case b) the points for determination c) the decision thereon and d) the reason s for such decision.     Items 2 and 3 need not be there in small cause’s court. The court shall record its findings on each issue the findings form part of the judgement. A judgement once signed cannot afterwards be amended or altered except (i) to correct clerical or arithmetical mistakes, or errors due to accidental slips or omissions (S.152); or (ii) On review (S.114).

 As per S.33 upon pronouncement of judgement, a decree shall follow.

 Judgement-debtor (10) : It means any person against whom a decree been passed. It also means any person in against whom an order capable of execution has been made.

Legal representative (11) : As per S.11 CPC the following are treated as Legal representatives:

      i) Any Person who in law represents the estate of a deceased person or

     ii) Any person who intermeddles with the estate of the deceased and where a party sues or sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

Mesne profits (12): IF a person is in wrongful possession of property, whatever profits he actually received together with interest on such profits are called as Mesne profits. However, it shall not include profits due to improvements made by the person in wrongful possession.

Movable property (13) including growing crops.

 Order (14) means the formal expression of any decision of a civil court which is not a decree.

 Pleader (15) means any person entitled to appear and plead for another in court, and includes an advocate, a vakil and an attorney of a High Court.

 Prescribed (16) means prescribed by rules.

Who is party? Who can file suit?  Write a note on different kind of parties?

Ans: Party to suit means it can be plaintiff or defendant. Any person who has a right to sue or cause of action can institute a suit and he is called as Plaintiff. Person against whom right is claimed and liability is sought to be enforced is called defendant. OI CPC talks about kind of parties.

Write a note on Cause of Action?

Cause of action: Bundle of facts which entitles to a relief in a suit.  Every plaint must disclose a cause of action; if it doesn’t, it is the duty of the court to reject the plaint (O.7 r.11).

O.II CPC says Plaintiff can unite all or any one of causes of action against one defendant or defendants in one suit. This is called joinder of cause of action.  In such case the jurisdiction of the Court as regards he suit shall depend on the amount or value of the aggregate subject matters at the date of instituting the suit’. However, court has discretion to direct the plaintiff to file a separate suit if opines that it would delay or embarrass the trial. Objection as to misjoinder of cause of action shall be taken before settlement of issues.

Whether court has power to permit a person or body of persons to present opinion or take part in the proceedings?

Ans: Yes, as per R.8A if court is satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest.

Whether court has power to strike out or add or substitute any person as plaintiff?

 Ans: Yes, as per Rule.10. If the suit is instituted in the name of the wrong plaintiff the court at any stage of the suit and that it is necessary for the determination of the real matter in dispute adding or substituting any person as plaintiff is necessary, it can do so. However, court must be satisfied that the suit is instituted under a bona fide mistake.

(1)The Court may at any stage of the proceedings strike out any party if party is improperly joined. Similarly, the Court may at any stage of the proceedings add any person as party to the suit if it opines that 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. The addition or striking out of parties can be either at the application of the party or on suo-moto by court.

(2) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(3) Where defendant added, plaint to be amended-

Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(4) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

Conduct of suit: The Court may give the conduct of a suit to such persons as it deems proper. If there are more than one plaintiff or defendant, one can be authorised by other to represent them, plead or act in proceeding.

What is Jurisdiction and write a note on various kinds of Jurisdiction?

Jurisdiction: Jurisdiction may be defined to be the power or authority of a court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it.

Write a note on forum for the institution of different kinds of Suit?

Ans: S:15 to 20 of the CPC1908 regulate the forum for the institution of suits.

S15: Every suit shall be instituted in the court of the lowest grade competent to try it.

Under What circumstances party is barred to file or continue Suit?

How to enforce a foreign Judgment in India?

Presumption as to foreign judgements: As per S:14 the court upon the production of any document purporting to be a certified copy of a FJ, that judgment is pronounced by a court of competent jurisdiction, unless the contrary appears on the record or is proved.

A FJwhich is conclusive u/s 13 can be enforced in india in the folllowing ways:

    1. By instituting a suit on such FJ

    2. By instituting execution proceedings

    3. By instituting a suit on such FJ it may be enforced in india. If such foreign judgment is embodied in a decree of Indian court, the Indian court cannot go into the merits of the origianl claim. Such a suit must be filed within three years from the date of judgeemnt.

    4. A foreign judgemnt can be enforced in execution u/s 44 & 44A of the CPC. U/S 44A, a certified copy of a decree of a superior court in a reciprocating territory can be enforced in the District court, as if the decree is passed by the District court in which the execution proceedings are filed. The judgement debtor may raise all such objectios which are open to him u/s 13 as if a suit had been filed.

What are the others rules that also treated as Resjudiata?

Ans: S.11 explanations list out circumstances which shall also called as resjudicata.

1. The term former suit refers to suit which is disposed of first but not suit which is instituted first
2. Once court of competent jurisdiction is disposed the matter whether matter is appealed or pending is irrelevant.
3. In the former suit one party must have either alleged and other must have admitted or denied.
4. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
5. Any relief which is prayed but not granted is deemed to have been refused.
6. This rules applies to representative suit i.e, right claimed is private or public provided it is filed with boanifide intention.
7. The above rules equally applicable to execution proceedings.
8. Even if the matter is decided by court of limited jurisdiction the above rules provided it is a competent court though earlier court which decided the suit jurisdiction is ousted subsequently.

What is the difference between Resjudicata and Res Subjudice? 

What is the difference between Explanation IV Resjudicata and OII Rule 2?  

Write a note on Transfer of suits?

How suit is instituted and with how many days summons must be served on defendant?

Ans: S.26 CPC says every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.   In every plaint, facts shall be proved by affidavit. As per S.27 if the suit has been duly instituted, a summons may be issued to the defendant to appear &answer the claim. They shall be served on the defendant within 30 days from the institution of the suit.

Whether court has power to summon any person to be a witness or produce thing or document?

Ans: Yes, court is a search engine of truth. As per S.30 the court at any time either of its own motion or on the application of any party: –

     a) Make such orders as may be necessary or reasonble in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or ther material objects produce as evidence;

    b) Issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

    c) Order any fact to be proved by affidavit.

S.30 says the rules laid down in S.s 27, 28, &29 shall apply to summons to give evidence or to produce documents or other material objects.

What powers court can exercise in the event of disobedience to summons issued to a witness or person directed to produce a thing or documents?

Ans: S.31 talks about such powers. S.31 says the court may compel the attendance of any person to whom a summons has been issued u/S.30 and for that purpose may:-  a) issue a warrant for his arrest; b) attach and sell his property c) impose a fine upon him not exceeding Rs5000-/- d) Order him to furnish security for his appearance and in default commit him to civil prison.

Write a note on rate of interests to be awarded?

Ans: S.34 talks about rate of interest to be awarded.  It is obligatory on part of court to grant interest and court shall give reasons for not awarding interest. If for any reason decree doesnot provide for interest, it will be deemed to have been refused. The rates of interest are different at different stages.

Write a note on rate of interests to be awarded?

Ans: S.35 , 20A, 35A, 35B, 95 talks about costs. Imposing costs is the discretion of court and normally court shall impose costs upon the disposal of judgment or petition. The court for imposing costs need not give any reasons but for not imposing costs it shall give reasons.

Costs a civil court imposes can be classified into following kinds:

a)General Costs (S.35);

b) Miscellaneous costs (O.20A);

C) Compensatory costs for false and vexatious claims or defences-S.35A;  

d) Costs for casuing delay-S.35 B.

List out what are Supplementary Proceedings and Incidental Proceedings?

Write a note on Settlement of disputes outside the court?

Ans: S.89 CPC talks about Settlement of disputes outside the court: The court upon receipt of pleadings on either side examine the parties and there if it appears to the court there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receving the observations of the parties, the court may reformulate the terms possible settlement and refer the same for : – (a)Arbiration; (b) Concilation; (c) Judicial settlement including settlement through Lok Adalat (d) Mediation . Thereafter the court shall affect a compromise between the parties and shall follow such procedure as may be prescribed.    

 Miscellaneous

ORDERS:

Pleadings: O: VI: The word pleading has been defined in the rule of this order: It says “pleading mean a plaint or written statement”. It includes the additional written statement, rejoinder, counterclaim, set-off. Civil law is set in motion by filing a plaint.

Plaint is a memorial tendered to a court in which the plaintiff sets forth his cause of action, so it is the exhibition of an action in writing.  A defendant’s statement is the written statement.

O.7: R: 11: Rejection of plaint: The conditions laid down under O.7 rule 11 CPC,1908 are:

a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the  plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law:

(e) where it is not filed in duplicate; 

(f) where the plaintiff fails to comply with the provisions of rule 9.

Written statement: O: VIII: It must deal specifically with each allegation. The denial must be specific. It is not sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but he must deal specifically with each allegation of fact which he does not admit, except damages (R.3). Denial should not be vague or evasive. Where a defendant wants to deny any allegation of fact in the plaint, he must do so clearly, specifically and explicitly and not evasively or generally. Details of new facts, such as suit is not maintainable by pleading, void, voidable, fraud, barred by limitation , release, payment , performance or illegality must be pleaded(R.2). Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted except as against a person under disability. The court may, however, require proof of any such fact otherwise than by such admission. When the defendant has not filed a written statement the court may either pronounce the judgment on the basis of the facts stated in the plaint(except as against a person under disability), or may require any such fact to be proved.   If a judgment is pronounced by the court, a decree shall be drawn up in accordance with it (R.5). If his denial of a fact is not specific but evasive the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.  Where the defendant relies upon several distinct grounds of defence or set-off or counter-claim founded upon on separate and distinct facts, they should be stated separately and distinctly(R.7).  Any new ground of defence which has arisen after the institution of the suit or presentation of a written statement claiming a set-off or counter claim may be raised by the defendant or plaintiff, as the case may be, in his written statement. Here the court is empowered to take notice of subsequent events.

If the defendant fails to present his written statement within the time permitted or fixed by the court, the court will pronounce the judgment against him or pass such order in relation to the suit as it thinks fit a decree will be drawn up accordingly (R.10).

Set-off: A plea of set-off is ‘a plea whereby a defendant acknowledges the justice of the plaintiff’s demand of his own, to counter balances that of the plaintiff either in whole or part”. Thus it is a reciprocal acquittal of debts between two persons. The rights of the defendant to claim set-off have been recognized u/r 6. It obviates the necessity of filing a fresh suit by defendant.

EX: A sued B on a bill of exchange for Rs500. B holds judgement against A for Rs 100-/-. The two claims being both definite, pecuniary demands may be set-off. Following conditions must be satisfied before the defendant can plead set-off against the plaintiff: O: 8: R: 6: 1) The suit of the plaintiff must be legally for recovery of money.   2) The claim of the defendant against the plaintiff must be for ascertained sum of money and such sum must be legally recoverable. Such sum must not exceed pecuniary limits of jurisdiction of the court. Both the parties must fill in the same character in set-off as well as suit claim. Set-off is nothing but shield for defendant. It is almost like a cross suit. The provision regarding set-off is not exhaustive and the courts have allowed the defendant to claim set-off in certain circumstances dehors the code. Such set-off is called equitable set-off. Even unascertained sums of money are also allowed to be claimed by way of set-off on condition that such claim arises out of the same transaction out of which the suit claim has arisen. It is a matter of discretion of the court. Ex: A Bank can transfer amount deposited in current a/c to its loan a/c for set off and Solicitor’s heir for costs.

Counter claim: O: 8: R 6A to 6G: “A claim made by the defendant in a suit against the plaintiff” It is a claim independent of, and separable from, the plaintiff’s claim which can be enforced by a cross-action. It is a cause of action in favour of the defendant against the plaintiff. It can be filed either before or after the filing of the suit but before the defendants has delivered his defence or before the time fixed for delivery of his defence has expired. Such counter-claim, however, should not exceed the pecuniary limits of the jurisdiction of the court. In other words, by laying down counter claim, pecuniary jurisdiction of the court cannot be ousted and power to try the suit already entertained cannot be taken away by accepting the counterclaim beyond its pecuniary jurisdiction. Ex: In a suit for injunction, a counter-claim for possession can be allowed.

It is an attack mounted by the defendant on plaintiff. It is a means of attack to defendant. It was added by 1976 Amendment. Before that court had discretion to accept it or not. The object of inclusion is to avoid multiplicity of proceedings. The right to make counterclaim is in addition to the right to claim set-off and both are not inconsistent or mutually exclusive. It is like a sword in the hands of defendant.

The counter-claim shall be treated as plaint and will be governed by the rule applicable to plaint. Similarly, a reply filed in answer to counter claims shall be treated as a written statement and governed by rules applicable to written statement.

Differences between counterclaim and set-off:

1. Set-off is a statutory defence to a plaintiff’s action, whereas a counter-claim is substantially a cross-action.
2. Set-off must be for an ascertained sum of money or it must arise out of the same transaction; a counter-claim need not arise out of the same transaction
3. Set-off is a ground of defence to the plaintiff’s action. Counter-claim is a weapon of offence, a sword, which enables the defendant to enforce the claim against the plaintiff effectually as an independent action.
4. In the case of a legal set-off, the amount must be recoverable at the date of the suit, while in the case of a counter-claim the amount must be recoverable at the date of the written statement.
5. When the defendant demands in a plaintiff’s suit an amount below or up to the suit claim, it is a set-off stricto sensu, but when it is for a larger amount, the claim for excess amount is really a counter claim.

Commissions: Order XXVI:

R.9 and 10: Commission to make local investigation: The court may, in any suit, issue a commission to such person as it thinks fit directing him to make local investigation and to report thereon for the purpose of

(a) elucidating any matter in dispute, or

(b) ascertaining the market value of any property or the amount of any mesne profits or damages or annual net profits. The object of local investigation is not to collect evidence which can be taken in court but to obtain evidence which form its very peculiar nature can be had only on the spot.

VARIOUS KINDS OF SUITS:

Issues: Order: XIV

Production, Impounding and Return of Documents (OXIII)

S.96 to 112 talks about appeals: Appeal is of two kinds, first and second.

It is the decree which is appealed but not judgment (even if its exparte). If preliminary decree is not appealed, it can’t be challenged when appeal is filed against a final decree.  If the decree is by way of consent there is no appeal.

If appeal is heard by two or more judges of High court, the majority opinion will prevail.

No decree shall be reversed or varied or remanded on the ground that there is misjoinder or non-joinder of parties or cause of action or any error or defect in the proceedings provided they don’t affect the merits of the case or the jurisdiction of the court. The same rule applies to execution proceeds. However, this rule has no application in case of non-joinder of necessary party.

Section 103 of the code provides that the High Court may, if the evidence on record is sufficient, determine any question of fact necessary for the disposal of the appeal, provided that the matter had not been determined by the lower appellate court or which has been wrongly determined by such court by reason of any illegality, omission, error or defect such as is referred to in sub-section (1) of section 100.  However, this section does not empower the High Court to frame questions of facts on issues that had not been raised at all in the lower Court.

Appeal from orders: (S.104): An appeal shall lie from the following orders of the court: An order u/s.35A b) an order u/s.91 or 92 refusing leave to institute a suit of the nature referred in S.91 or 92.c) an order u/s.95 d) an order which imposes fine or direction to arrest or detention in the civil prison except in case of execution of decree. e) if for any order appeal is expressly provided. D) There is no appeal against an order passed by appeal court.

Powers of Appeal court:  The 1^st appellate court has all the powers of trial court.

  (a) to determine the case finally b) to remand a case c) to frame issues and refer them for trial d) to take additional evidence or require such evidence to be taken.

 (b) Remand means send back to the trial court. Conditions for remand of the case: Suit must have been disposed on preliminary point. The decision of lower court on preliminary part is reversed in appeal.

Effect of remand : It reverses the lower court’s decision and reopens the case for re-trial, except a matter decided by the appellate court. Remand order is appealable.

Reference: S: 113: O: 46: A reference may be made by a subordinate court to the high court on a question which arises-

(a) Decree is not subject to appeal at all or decree is not subject to second appeal to high court, or in the execution of such a decree.

(b) If it be a question of law or usage having the force of law, on which the court trying the suit or appeal entertains a reasonable doubt

Such reference may be made by the court either of its own motion or on the application of any of the parties. Where a question of the validity of any law in issue, a reference must be made to the high court, the high court, then hears the parties, and decides the points referred, a copy of its judgement is than sent to the court by which the reference was made. It is the duty of the latter court, on receipt of the judgement, to dispose of the case in conformity with the decision of the high court. In certain cases, questions as to jurisdiction on small causes may be referred.

Review: Reconsideration of its own decree by court which passed the decree is called review. Review is permitted when there is no appeal or right of appeal is not exercised. If review is preferred there is no right of appeal. Grounds for review: a) discovery of new and important matter or evidence b) decree passed on account of mistake or error apparent on teh acre of the record c) or any other sufficient reason.

Revision: S:115: The high court may call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies thereto, if the subordinate court appears : a) to have exercised a jurisdiction not vested in it by law or b) to have failed to exercise a jurisdiction vested in it by law or c) to have acted in the exercise of its jurisdiction illegally or with material irregularity and the high court may make such order as in the case it thinks fit.

But by 2002 amendment following changes have been made:

But the high court shall not under this section, vary or reverse any order made or any order deciding an issue in the course of a suit or other proceeding , except where order

If had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings, but not the order if allowed would occasion a failure of justice or cause irreparable injury to the party against whom order was made.

S.125: The high court has power to make rules under order provided in the code.

Order: 41: Appeals from original decrees:

Stay by Appellate court

R:5(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from, except so far as the appellate court may order nor shall execution be stayed by reason only of an appeal having been preferred;

But the appellate court may for sufficient reason order stay of execution.

(2) The court which passed the decree may also on sufficient cause being shown stay execution of an appealable decree before the expiration of the time allowed for appealing therefore.

(3) No order of stay shall be made under sub-rules (1) (2) unless the court is satisfied

(a) That substantial loss may result unless the order is made.

(b) That application has been made without unreasonable delay.

C) That security has been given by applicant for the due performance of such decree or order as may ultimately bind upon.

(4)Subject to the provisions of sub-rule (3), the court may make an ex-parte order for stay of execution pending the hearing of the application.

(5) Where an appeal is against a decree for payment of money the appellate court may deposit or furnish security in respect thereof within the time allowed by the court and where the appellant fails to do so the court shall not make an order staying the execution of the decree not withstanding anything contained in the foregoing sub-rules.

Where a security has been furnished by the surety for the performance of the decree u/o 412 R.5 of CPC the interests of the decree-holder are safeguarded. The person who offered security would be liable for the performance of the decree, as if he was a judgement debtor u/s 145 of the CPC.

R: 22:Cross objections: If a suit party is entitled to claim several reliefs. But court on findings on record granted only few and gave judgement in its favour with regard to rest. In such a case, a party has right to prefer appeal against those relief’s not granted by trial court. Such an appeal is cross-appeal. It has to been filed within the limitation period. If the defendant files an appeal against aggrieved order, if the time is expired than plaintiff has right to file cross-objections, these may be filed at any time within one month from the date of service of the notice upon him. The cross-objections are to be in the form of memorandum and they must comply with rules relating with the memorandum of appeal. Accordingly to O.41 R22(1) even when original appeal is withdrawn, cross-objections can be heard and disposed of.

R: 23 and 23A: Remand: S: 107(1) (b):

Remand means send back, where the trial court decided on preliminary point “without recording findings on other issues and if appellant court reverses the decree so passed, it may send back the case to the trial court to decide other issues and determine the suit.”

Conditions for remand of the case:

1) Suit must have been disposed on preliminary point.

2) The decision of lower court on preliminary part is reversed in appeal

3) Effect of remand is: it reverses the lower court’s decision and reopens he case for re-trial , except a matter decided by the appellate court. 

4) Remand order is appealable.

R: 25: 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 to the right decision of the suit upon the merits, the appellate court may, if necessary, frame issues, and refer the same to trial to the court from whose decree the appeal is preferred and in such case shall direct such court to take the additional evidence require.

And such court shall proceed to try such issues and shall return the evidence to the appellate court together with its findings thereon and the reasons therefore within such time as may be fixed by the appellate court or extended by it from time to time.

R:26(1) Such evidence and findings shall form part of the record in the suit; and either party may, within a time fixed by the appellate court, present a memorandum of objections to any finding.

R:27: Production of additional evidence in Appellate court:

(1)The parties to an appeal shall not be entitled to produce evidence, whether oral or documentary, in the appellate court. But if-

(a) The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) The party seeking to produce additional evidence, establishes hat notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(c)The appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgement, or for any other substantial issue.

(d)The appellate court may allow such evidence or document to be produced or witness to be examined.

(2) Whenever additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission.

EXECUTION:

Part-I Preliminary

Part-II Preliminary:

Arrest and Detention in Civil Prison 

Attachment 

SALE OF   PROPERTY:

MISCELLANEOUS:

A.P. BUILDINGS (Lease, Rent & Eviction) CONTROL ACT:

 It’s a complete code that deals with substantive as well as procedure law relating to lease, rent & eviction of building in A.P. Another feature of this law is that prior notice for evicting tenant as mandated under S. 106 of Transfer of Property Act is not necessary so as to file a petition u/S.10 of the Act.

Scheme of this Act:  There are 35 Sections. The Act provides following nine definitions. They are:

1) Andhra Area         2) Authorized officer      3) Building        4) Controller      5) Government                                            6) Land lord         7)Prescribed       8) Telangana Area       9)Tenant

(3)’Building’ means any house or hut or part of a house or hut, let or to be let separately for residential or non- residential purposes and includes:

(a) the gardens, grounds, garages and out-houses if any, appurtenant to such house, hut or part of such house or hut and let or to be let along with such house or hut or part of such house or hut;

(b) any furniture supplied or any fittings affixed by the landlord for use in such house or hut or part of a house or hut, but does not include a room in a hotel or boarding house;

(4)’Controller’ means any person not below the rank of a Tahsildar appointed by the Government to perform the functions of a Controller under this Act;

Comment: As per S.2(6) of the Act  Judges (Jr.Civil Judge) is appointed to perform the functions of the Controllers, in their respective jurisdictions. They have powers to deal with all Sections except the following: S.3, 18, and S.4,5 and 6 of the Act in relation to the Buildings allotted by the authorized officers under S. 3 (6) of the Act.  As to the function to be performed under S. 18 of the Act, Deputy Secretary to Government (GAD) is appointed as Controller in respect of twin cities of Hyderabad and Secunderabad by way of issuing G.O.Ms.No.528 dt.26.3.1966.

The Judges who are acting as Rent Controllers got nothing to do with the cases arose in respect of the provisions of either S. 3 or 18 of the Act.

(6)’Landlord’ means the owner of a building and includes a person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another person or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.

Explanation: – A tenant who sub-lets a building shall be deemed to be a landlord within the meaning of this Act in relation to the sub-tenant;

 (ix)‘Tenant’ means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son or daughter, of a deceased tenant who had been living with the tenant in the building as a member of tenant’s family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building, by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter-house or of rents for shops has been farmed out or leased by a local authority.

S.3 talks about Notice of Vacancy: The Land lord shall within ten days after the building becomes vacant to the authorized officer in this behalf.  It is irrelevant how such vacancy arises:

a) by his ceasing to occupy it,

b) by the termination of a tenancy,

c) eviction of the tenant,

d) release from requisition.

Fair Rent: Sections 4, 5, 6 and 7 of the Act, all form part of a scheme regarding fixation of fair rent.  S. 4 deals with fixation of fair rent.  It must be noted that fair rent once fixed is final and exceptions are dealt under S. 5 and 6.

S.4 Determinaiton of fair rent: The controller shall on application by the tenant or landlord of a building fix the fair rent for such building after holding such enquiry as the controller thinks fit.  This S. gives certain guide lines for fixing the fair rent both for residential and nonresidential purposes

 As per S.5 fair rent once fixed can’t be increased except there are some improvements are carried at the request of tenant by landlord by incurring expense.  Rent can also be decrease if there is diminish of value or utility.

The dispute between landlord and tenant in regard to increase or decrease of rent shall be decided by controller.

As per S.6 if there is increase of taxes or cess of any building by any local authority land lord is entitled to claim half of such excess from the tenant in addition to the rent payable for the building.

 7 gives a mandate that landlord cannot claim or receive anything in excess of agreed rent or fair rent fixed, except for one month’s agreed rent or fair rent fixed as the case may be, as advance. It also provides that any sum paid in excess of such amount either in consideration of the grant, continued or renewal of tenancy of the building, after commencement of this Act, shall be refunded by the landlord to the person by whom it was paid or at the option of such person it shall otherwise be adjusted by the landlord. Even if the tenant fails to make any specific request, the landlord shall give automatic adjustment of such amount towards arrears of rent.

Permission to deposit rents to the credit of Rent Controller(S.8 &9):

These two Sections deal with the cases where the tenant can seek for permission to deposit rental amounts to the credit of the Rent Controller.

8 of the Act gives rise to a right to the tenant to insist for issuance of receipt for rent or advance paid by him to the landlord.

Further it gives a right to him to file an application seeking for permission to deposit rents to the credit of the Rent Controller, after following the procedure laid down in this Section in case the landlord refusing to receive rents tendered to him (tenant).

In every case where landlord refuses to receive rents, it is not mandatory for the tenant to follow the procedure laid down in the Section scrupulously. But, if he intends to invoke S.8 (5) of the Act and file a rent control case, he shall scrupulously follow the said procedure.

S.8 lays down Procedure of deposit rent in the event of refusal by land lord:

First step:  Tenant if the rent becomes due shall by notice in writing request the landlord within ten days furnish the bank account into which the rent may be deposited by the tenant to the credit of the landlord.  That bank must situate in the city where building is situated or if there is bank within three miles from the village.

If the landlord specifies a bank, tenant shall deposit rents into the said bank and shall continue to do so in respect of future rents whenever they become due.

Second step:   If landlord does not specify the bank, tenant shall remit the rent to the landlord by money order, after deducting the money order commission and shall continue to remit the rent so, for the subsequent period in respect of the building, in the same manner until the landlord signifies by written notice to the tenant, his willingness to accept the rent or specifies a bank into which the rents can be deposited.

Third step:  If the landlord refuses to receive the rent remitted by money order, the tenant may deposit rent before the Rent Controller seeking permission from the Rent Controller. The permission can be sought after deposit is made. The amount so deposited may be withdrawn by the person, who is held by the Rent Controller, as entitled to receive the same, on application made by such person to the Rent Controller.

It is the duty of the tenant in order to ensure that he would not be branded as willful defaulter shall deposit the rent in the manner prescribed by law.

S.9: If the address of the landlord or his authorized agent is not known to the tenant, he can file rent case invoking this provision of law and deposit rents to the credit of the Rent Controller with permission, until he can secure such address.    Further, in case of the tenant entertaining a bonafide doubt as to the person who is entitled to receive rents due to existence of any dispute or otherwise, he can invoke the provisions of S. 9 and file a rent case seeking for permission to deposit rents to the credit of the Rent Controller.

Until the bonafide doubt entertained by the tenant, as to, who is the person who is entitled to receive rents is removed or the dispute regarding the same is settled by the decision of a competent court or by settlement between the parties, the tenant can be permitted to deposit rents to the credit of Rent Controller.

If it is found that there are no bonafides in the doubt entertained by the tenant, the Rent Controller shall forthwith order payment of the amount deposited, to the landlord and if there is dispute as to who is to receive such amount, the person who is declared as entitled to receive the same, after removal of the doubt regarding the same either by way of a decision from competent court or a settlement between the parties, he should be permitted to withdraw the rents deposited to the credit of the Rent Controller.

Rent Case: For a rent case to be filed there shall be a building, landlord and tenant, apart from the Rent Controller and there shall be lease. Lease is not defined in this Act. So with this regard S. 105 of Transfer of Property Act is to be resorted to.  In connection with the lease of the building, rent case can be filed before Rent Controller either by landlord or by tenant.

JURISDICTION (S.1 & 32):

Territorial Rights:   S.1 of the Act deals with territorial application of this Act. It is applicable to all Municipal Corporations and Municipalities in the State of A.P. and also to certain Gram Panchayats, as well.  Tenancy rights are of suits of civil nature. As Rent control occupies the filed civil court jurisdiction is barred in view of S.9 CPC.  Otherwise, previously this jurisdiction is in the hands of civil court only.

S.32:  It says this law not applies to following building:

1) Any building belonging to either State Government or Central Government or Cantonment Board or any local authority.

2) If 15 years time is not lapsed from the date of completion of the construction of the building, Rent Controller has no jurisdiction to entertain a case relating to the said building. The same is the case with the date of substantial renovation of the said building. Rent Controller has no jurisdiction to entertain a case relating to the said building.  Cases regarding such buildings are to be dealt with only by Civil Courts.

3) Any building the rent of which exceeds Rs.3500/- per month in the areas covered by Municipal Corporations in the State and Rs.2000/- in the other areas, this Act got no application.  That means, maximum rent limit or outer limit, is fixed for entertaining Rent Control Cases.

Filing of Rent Control cases, filing of documents and disposal of rent control cases: The relevant Sections and rules which provide for the requirements for filing a rent control case, summoning the parties, filing of documents, summoning of witnesses and documents, enquiry, disposal and execution of rent control case are dealt under Rule 7 of the rules framed under this Act.  They talk about the following:

S. Summons and Notices: 25 and Rule 20 deals with issuance of summons either to the third party witnesses to give evidence before the court or to produce documents and to give evidence regarding the said document as the case may be.

Resjudicata:   provides that decisions, which have been become final, cannot be reopened.  This provision is almost akin to S. 11 CPC (Resjudicata)

As per  orders are to be pronounced by the Controller, appellate and revisional authority in open court after hearing the matter.

 21 provide authority to award costs while rendering orders. It is also an appealable order.

 Appeal: The persons aggrieved by the orders of the Rent Controllers can prefer appeal challenging the said order invoking S. 20 of the Act.

  Revision:      The parties aggrieved by the Judgments of the appellate authority can challenge the same before Hon’ble High Court of A.P. by way of filing revision.  Further, the orders passed in execution under S. 15 of the Act by the Rent Controller are also revisable orders only, but not appealable orders.

Transfer of Cases:  Rule 9 empowers the appellate authority to transfer the case from the file of one Controller to that of other Controller within his jurisdiction. The Controller himself can seek for transfer if he is personally interested in any case pending before him.

Execution: S.15 provides authority to the Rent Controller to execute the orders passed by him.

Rule 23: provides for the mode of filing of execution petitions.  It is akin to several of the provisions of order 21 CPC. It deals with the way in which the Rent Controller has to order for assistance in case of premises being found under lock and key and when there is resistance for execution of warrant etc. and also for filing claim petitions by third parties if they are in possession of the property etc.

Limitation for execution of orders passed by the Rent Controller is specifically prescribed in Rule 23. Six months from the date of order is the time stipulated for execution of the Rent Controllers order, as per Rule 23(1).  But there is a proviso to Rule 23(1) prescribing, that an application filed after the specified period also can be admitted, if the applicant satisfies the Controller that he has sufficient cause for not preferring the execution application within the prescribed period.

 Claim Petition:   Both the decree holder as well as the third party/claim petitioner can invoke Rule 23(7) for removal of obstruction and for making out third parties claim, as the case may be.

Eviction of Tenant:  S.s 10,12 and 13 of the Act deal with eviction of tenants. Unless, a case fall under any of the grounds provided under these S.s, landlord cannot seek for eviction of the tenant from the building.

1) Denial of title of landlord and plea of permanent tenancy:

2) Willful default in payment of rents

3) If tenant sub-leases the property contrary to agreement or there is a change of user without written consent of the landlord.          

4)  If tenant commits acts of waste, which are likely to impair materially, the value and utility of the building, it is a ground for eviction.

5) If tenant is guilty of such acts and conduct which is nuisance to the occupiers of other portions in the same building or buildings in the neighbourhood.

6) If tenant secured alternative building or ceased to occupy the tenanted building for a continuous period of four months without reasonable cause.

7)   Bonafide personal requirement. Ex: In case of a premises being meant for garage and the landlord requiring the same for such use.

8)  A purchaser of premises which is under lease requires the premises for his bonafide personal use, he can seek for eviction of tenant but he can do so only after expiry of three months from the date on which the sale deed registered in his favour as proviso to S. 10(3)(a) of the Act.    Once landlord obtains possession of a residential building invoking this provision he cannot seek for possession of another residential building again invoking this section. The Same is the case with a non-residential building also.

If the landlord of the building is religious, charitable educational or other public institution and the building is required for the use of the said institution, a petition can be filed by the institution subject to the provisions of S. 10(3) (b) of the Act.

9)  As per S. 10(3) (c ) of the Act, if landlord is in occupation of only a part of a building whether residential or non-residential, may notwithstanding anything contained in S. 10(3)(a) of the Act, can apply for an order directing the tenant occupying whole or any portion of remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation either for residential purpose or for the purpose of business which is carrying on as the case may be.  But he can do so only after the expiry of lease period if it is specified in the lease agreement as per S. 10(3)(d) of the Act.

10)   Whereas S. 10(3)(e) of the Act specifies that in case of the Rent Controller being satisfied that the personal requirement pleaded by the landlord is bonafide he is to order the tenant to put the landlord in possession of the building specifying the date for doing so and the time granted for the same is to be provided not exceeding three months in aggregate.   Further, it is provided that in case of the application under S. 10(3)(c), the Rent Controller is to reject the application if he is satisfied that the hardship which may cause to the tenant by granting eviction to the landlord will outweigh the advantage to the landlord.  This proviso applies only to the cases where eviction is sought for invoking S. 10(3)(c ) but not the other clauses.

Employees of essential services:  There are certain exemptions given in S. 10(4), to certain category of people from eviction, invoking S. 10(3)   of the Act. If tenant is engaged in an Employment or class of employment notified by the Government as an essential service unless, landlord himself engaged in any such service the tenant cannot be evicted under S. 10(3) of the Act.  Judges of High Court, all Central and State Government employees, employees of Indian Airlines etc. are notified as members of essential services.  Further, if the building is being used or has been left for use of an Educational Institution recognized by the Government or any authority empowered by them in his behalf, the tenant cannot be evicted from the said building, so long as such recognition continues, by invoking S. 10(3) of the Act.

 Restoration of possession of building to the tenant:  S. 10 (5) is giving a right to the tenant to seek for restoration of possession of the building from which he is evicted on the ground of personal requirement pleaded by the landlord under certain circumstances.  If landlord fails to occupy the building for the purpose specified in the order within one month after obtaining possession, or having occupied it, vacates it without reasonable cause, within six months of such date, the evicted tenant, can seek for restoration of possession of the property to him, by making an application, within one month from the date on which, the right to make such application, accrued to him.

1. 10(6) provides that if the Controller is satisfied that any application filed by the landlord or tenant is frivolous or vexatious he can direct that compensation not exceeding Rs.50/- to be paid to the adverse party.
2. 10(7) provides that in case of the Controller rejecting the application filed under sub-S. 2 or sub-S. 3 of S. 10 the tenancy shall be deemed to be continued on the same terms and conditions as before.
3. 10(8) provides that a person who is receiving or is entitled to receive rent for a building as an agent of the landlord can file eviction petition only with the previous written consent of the landlord, not otherwise.

Right to recovery of immediate possession of tenanted premises: S.s 10(a), 10(b) and 10(c) are the newly inserted provisions into this Act, by Act 17/2005, where rights are created respectively for retired person from armed force who is the landlord and the members of his family, retired employee of State or Central Government who is a landlord and the members of his family and a widow of the landlord, to seek for recovery of immediate possession of the premises under the occupation of the tenant.

Recovery of possession of the building by landlord for effecting repairs, alterations or additions or for reconstruction:    In case of the landlord bonafidely intending to effect repairs, alterations or additions to the existing building and the same are required to be carried on and cannot be carried on, without the building being vacated, he can seek for eviction of the tenant invoking S. 12(1)(a) of the Act.   If the landlord intends to demolish the existing structure consisting of not more than two floors and the said building is bonafidely required for demolition for the purpose of erecting new building on the site of the building, he can invoke S. 12(1)(b) of the Act.  But no order of recovery of possession under this Section shall be passed unless the landlord gives an undertaking, that on completion of the repairs, alterations or additions or the new building, the same will be offered to the tenant who delivered possession of the building in pursuance of the order under sub-s(1) of this Section for his occupation, before the expiry of such period, as may be specified by the Rent Controller in this regard.  This is a mandatory provision made in S. 12 (2) of the Act.

1. 13 deals with recovery of possession of a building by the landlord for effecting repairs, alterations or additions or for reconstruction of the building, in respect of which Government shall be deemed to be the tenant. In all other respects, this S. is similar to the provisions of S. 12 discussed above. Except for the provisions of S. 10, 12 and 13 of the Act, under no other provision, landlord can seek for eviction of tenant, under this Act.

S.14:  Amenities:  Landlord shall not interfere with amenities enjoyed by the tenant, without just or sufficient cause. The amenities generally be enjoyed by the tenant in a lease hold premises are water supply, electric energy supply, passage, stair cases, light, lavatories, lifts and conservancy or sanitary services. If the landlord unjustly interferes with these amenities, tenant can make an application before the Rent Controller seeking for restoration of the same.  During the pendency of such case, tenant can file interlocutory application seeking for an interim order of restoration of amenity, without even notice to the landlord.  If the amenities enjoyed by the tenant are stopped by any person other than the landlord, by reason of the landlords failure to pay taxes or other charges tenant may pay such taxes or other charges, and have the amenities restored and can deduct the said amount from the tenant payable by him to the landlord, as per S. 14(5).   S. 14(6) prescribes authority to the Controller to award compensation in his discretion not exceeding Rs.50/- to be paid to the landlord by the tenant vice-versa, if the litigation launched are frivolous or vexatious or the amenities are withheld, frivolously and vexatiously, as the case may be.

Repairs to the Building:   S. 19 deals with failure by the landlord to make necessary repairs. In case of the landlord failing to effect repairs to the leasehold premises within reasonable time after notice is given by the tenant, tenant can approach the Rent Controller seeking for direction to the landlord to effect the repairs invoking S. 19 of this Act.   In case of Rent Controller giving a finding that the repairs are to be effected by the landlord, a direction can be given to the landlord to do so.  As per this provision, if the landlord fails to effect the repairs, inspite of the direction given him to do so, tenant can be given liberty to get the said repairs effected at his expense and deduct the amount spent for the rents payable by him. But such expenses shall not exceed in any one year  1/12^th of the rent payable in respect of the building for that year from the rent payable.    Just because it is provided in S. 19 that the tenant can proceed with effecting repairs to the building and can deduct the expenses incurred by him from out of the rents payable to the landlord, he cannot resort to do so on his own without filing of application invoking S. 19 and securing permission from the Rent Controller in this regard.

 A clear distinction is to be drawn in between the right to recover arrears and the right to lay an action for eviction on the ground of wilful default.  The former is governed by the common law and the latter is obviously within the realm of Rent Legislation.

No limitation is prescribed for filing eviction petitions.  There is nothing in S. 11 to indicate or suggest that a landlord will not be entitled to ask for deposit of rent due to him beyond a period of three years.  Article 137 of Limitation Act is not applicable and it cannot be claimed that rent beyond the period of three years is not legally recoverable.

Deposit and withdrawal of Rental amounts in pursuance of orders rendered under S. 8, 9 and 11 of the Act:           The above discussed provisions of Rent Control Act provide for certain instances requiring deposit of rents to the credit of the Rent Controller by the tenant.  They are, the deposits of rents permitted under S. 8, 9 and 11 of the Act. These S.s themselves provide for the permission for the person, who is entitled to receive the said amounts, to withdraw the same also.

Penal Provisions:  Contravention of S. 14(4) and S. 21 punishable conduct. Some of the clauses which the Rent Controller frequently comes across while dealing with Rent Control Cases.

“Rent Controller’s Court is not a civil Court and application of the provisions of CPC is not automatic and is only limited.”  

A.P. BUILDINGS (Lease, Rent & Eviction) CONTROL ACT:

EASEMENTS ACT, 1882:

Easement: An easement is a right which the owner or occupier of a certain land possess as such for the benfecial enjoyment of that land, to do and continue to do something or to prevent and continue to prevent something being done, in or upon or do in respect of certain other land not of his own.  Essence of easment is that it should be a right over property belonging not to owner but to some one else.

Easement by way of Law: (a) Easement by necessity (b) easement by prescription.

Easement by necessity: In order to claim easement by necessity the following elements must be fulfilled:

1. As a result of division of land into two pieces and their connection with each other is in such a way that one cannot be enjoyed without other having privilege over another’s land . To put straight the beneficial enjoyment of one’s land is possible only, if there is a limitation or restraint on the absolute enjoyment of right of ownership in the land of another. Generally this arises for purpose of right of way.
2. It must be noted that, if there is any other way or means through which the property can be enjoyed beneficially though it may be in convenient it’s not a ground to seek easement by way of necessity, to put straight, claiming right under this category depends upon absolute necessity.
3. Easement right under this category can be claimed as long as necessity is existed, the movement it is seized the right ceases.

 
Easement by way of prescription:(a) If the enjoyment of easement would result destruction of right or property in which easement if claimed.

(b) If the right is for free passage of light or air through a open space or ground.

(c)  Water not flowing in a stream and not permanently collected in pool or tank or otherwise.

(d) Similarly one cannot claim right under this category if the water in underground not flowing in defined channel.

Kinds of Easements:

 classifies easements into: a) continuous         b) discontinuous       (c) apparent       (d) non-apparent

(a) A continuous easement is one whose enjoyment is or may be continual without the act of man. Ex: A right annexed to A’s house to receive lght by the windows without obstruction by his neighbour.

(b) A discontinuous easement is one that needs the act of man for its enjoyment.Ex: A right of way annexed to A’s house over B’s land; because, to be enjoyed A must use it.

(c) An apparent easement is one the existence of which is shown by some permanet sign, which upon careful inspection by a competent person would be visible.Ex: A right is annexed to A’s land to lead water to it by an aqueduct across B’s land and from there, draw it off by a drain.

(d) A non-apparent easement is one, which has no such sign.Ex: A right annexed to A’s land to prevent from bilding on his own land.

Rights and liabilities of dominant owner (S.20 to 31):

1. E must be used only for the enjoyment of the dominant heritage.
2. Dominant owner must exercise his right in the mode which is least onerous to the serviernt owner.
3.  Dominat owner without imposing any addittional burden on the servient heritage, may, from time to time, alter the mode and place of enjoyment of E. However, if it is right of way, it cannot be varied at pleasure, even though he does not thereby impose any addittional burden on the servient heritage.
4.  Dominat owner is entitled to do all acts necessary to secure the full enjoyment of the E without determinent to the servient owner and servient hertiage.
5.  The expensees incurred for the acts done so as to use or preservation of an easemnet, must be defrayed by he dominat owner..
6. If E is enjoyed by means of an artificial work, the dominat owner is liable to make compensation for any damage to the serviernt heritage arising from the want of repair of such work.(S.26).
7.  The servient owner is not bound to do any thing for the benefit of the dominat heritage. However, he must not do any act tending to restrict the E, or to render its exercise less convenient (S.27).
8. The dominat owner cannot by merely altering or adding to the dominant heritage, subsantially incease an E. (S.29)
9. If the dominat heritage is divided between two or more persons, the E, becomes annexed to each of the shares, but not so as to increase substantially the burden on the servient heritage: Provided that such annexation is consistent with terms of the instrument, decree or revenue proceeding under which the division was made, and, in the case of prescriptive rights, with the user during the prescriptive period.(S.30).
10. In the case of excessive user of an E the servient owner may, without prejudice to any other remedies to which he may be entitled, obstruct the user, but only on the servient heritage: Provided that such user cannot be obstructed when the obstruction would interefere with the lawful enjoyment of the E.(S.31).
11. With respect to the extent of Es and mode of their enjoyment, the following provisions shall take effect.

How the Easement rights lost?

An easement extinguishes u/s 45 revives due to following circumstances:

(a) If the destroyed heritage before the expiry of twenty years restored by the deposit of alluvion.
(b) If the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt upon the same site; and

(c) If the destroyed heritage is a building and before the expiry of twenty years, if it is rebuilt upon the same site provided it doesn’t impose greater burden on the servient heritage.

An easement extinguised u/s 46 revives when grant or bequest by which the unity of ownership was produced is setaside by the decree of a competent court. Easemnet of necessity extinguishes under the same section revives when the unity of ownership ceases from any other cause.

A suspended easement revives if the cause of suspension is removed before the right is extinguished under section 47.

Remedy: A person who has fulfilled the above elements can claim either Easement by prescription or necessity as a matter of right can enjoy them and in the event of challenge made by any person can ask the court to declare them categorically by stating that they have acquired easementary right under the above said category.

How the Easementary rights are revived?

An easement extinguishes u/s 45 revives due to following circumstances:

(a) If the destroyed heritage before the expiry of twenty years restored by the deposit of alluvion.
(b) If the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt upon the same site; and

(c) If the destroyed heritage is a building and before the expiry of twenty years, if it is rebuilt upon the same site provided it doesn’t impose greater burden on the servient heritage.

An easement extinguised u/s 46 revives when grant or bequest by which the unity of ownership was produced is setaside by the decree of a competent court. Easemnet of necessity extinguishes under the same section revives when the unity of ownership ceases from any other cause.

A suspended easement revives if the cause of suspension is removed before the right is extinguished under section 47.

Remedy: A person who has fulfilled the above elements can claim either Easement by prescription or necessity as a matter of right can enjoy them and in the event of challenge made by any person can ask the court to declare them categorically by stating that they have acquired easementary right under the above said category

SPECIFIC RELIEF ACT, 1963

Specific Relief Act is a window of reliefs. Remedies provided under this law are:  Recovery of possession, Suit for specific performance, Suit for injunction, Suit for declaration and Suit for injunction, Suit for declaration, recovery of possession and injunction and damages, suit for cancellation, Suit for rectification. These are some remedies parties can also seek apart from other remedies provided under any contract or law. This Act is a bridge between substantive civil law and procedural civil law.  Substantive civil only talks about right and duties but it didn’t specify mode of redressing the grievance and whereas procedural law tells about adjudication of civil rights with the aid of CPC and Civil rules of practice but it didn’t specify with what remedies they must be solved. But it is the Specific relief act talks about various remedies to resolve civil disputes and principles court shall apply in resolving those disputes with the aid of these remedies.  Therefore, Specific Relief Act is called window of reliefs. It must be noted that Specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.

 

S.2. Definitions: (a) “Obligation” includes every duty enforce by law.

(b) “Settlement” means an instrument (other than a will or codicil as defined by the Indian Succession Act, 1925) whereby the destination or devolution of successive interests movable or immovable property is disposed of or is agreed to be disposed of.

(d) “Trustee” includes every person holding property in trust.

(e) All other words and expressions used herein, but not defined, and defined in the Indian Contract Act, 1872, have the meanings respectively assigned to them in that Act.

S.3. Savings: Nothing in this Act shall be deemed. –

(a) To deprive any person of any right to relief, other than specific performance, which he may have under any contract.

(b) To affect the operation of the Indian Registration Act, 1908, on documents.

S.4.: It says Specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.

Recovery of Possession: It can be studied under two heads. They are: General remedy and summary remedy. Under General Remedy a person who is entitled to legal possession of property can in the event of dispossession, file a suit for recovery of its possession. The rules relating to General Remedy are governed by Code of Civil Procedure 1908 (S.5 &7). Under summary remedy (S.6 of the Act) a person who is in settled possession of immovable property is dispossessed though he is having or not having legal title to property, he can file a suit for recovery of its possession. However, such person shall file suit within six months from the date of dispossession. If such dispossession is caused by government this remedy can’t be invoked. There shall be no appeal from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. It must also be noted that invoking of this remedy is not from suing to establish his title to such property and to recover possession thereof. The philosophy behind this section is that law discourages forcible dispossession from immovable property even by owner and thereby prevent private people to take law into their hands.

Specific Performance (S.10): Conditions: There exists no standard to ascertain the actual damage caused by the non-performance of the act agreed to be done or That the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.

Explanation: If the breach is relating to transfer of immovable property court shall presume that compensation in money is not adequate relief and contra is the presumption in case of movable property. However if the movable property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market. Further, if the property is held by the defendant as the agent or trustee of the plaintiff.

S.11 says that specific performance can be enforced when the act agreed to be done is wholly or partly is in the performance of a trust. An exception is that the contract must not be in excess of the power of a trustee.

S.12 says that if, in the discretion of the court, only a small part of a contract cannot be specifically performed and if such part can be alternatively compensated, the rest of the part can be specifically enforced.

Personal Bars to relief:  Sec. 16 refers to the personal bars to relief, namely:

(i) the person who is not entitled to recover compensation for breach of its contract,

(ii) who has become incapable for performing, or violates any essential term of the contract that on his art remains to be performed or acts in fraud of the contract, or willfully acts of variance with, or in subversion of, the relation intended to be established by the contract; or

(iii)  That the party who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms, the performance of which has been prevented or waived by the defendant.  Sec. 16 (c explanation, denotes that where the contract involved payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so ordered by the court.

Readiness and Willingness:  Regarding explanation (ii) of Cl.(c) of section 16, the position is settled that the plaintiff should not only aver but also to prove his continuous readiness and willingness to perform his part of contract at all material times, right from date of contract till the date  of decree/execution of sale deed.  Some courts are of the opinion that this should be specifically pleaded in the plaint.

S.20. Discretion as to decreeing specific performance:

(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

(2) The following are cases in which the court may property exercise discretion not to decree specific performance:-

(a) Where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the -contract was entered into are such that the contract, though not void able, gives the plaintiff an unfair advantage over the defendant; or 

(b) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff, or

(c) Where the defendant entered into the contract under circumstances, which though not rendering the contract void able, makes it inequitable to enforce specific performance.

Explanation 1:-Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause

(a) or hardship within the meaning of clause (b).

Explanation 2:-The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.

Suit for Rectification (S.26):Conditions: If through fraud or a mutual mistake of the parties, a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956, applies) does not express their real intention, then- either party or his representative in interest may institute a suit to have the instrument rectified; or

Suit for Cancellation (S.31): Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument. if left outstanding may cause him serious injury, may sue to have it adjudged void or void able; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

Suit for Rescission(S.27): If any person interested in a contract may sue to have contract rescinded in any of the following cases namely:-

(a) Where the contract is voidable or terminable by the plaintiff,

(b) Where the contract is unlawful for causes not, apparent on its face and the defendant is more to blame than the plaintiff.

(2) Notwithstanding anything contained in subsection (1), the court may refuse to rescind the contract-

(a) Where the plaintiff has expressly or impliedly ratified the contract; or

(b) If owing to the change of circumstances which has taken place since the making of the contract (not being due to any act of the defendant himself), the parties cannot be substantially restored to the position in which they stood when the contract was made; or

(c) If third parties have, during the subsistence of the contract, acquired rights in good faith without notice and for value; or

(d) If only a part of the contract is sought to be rescinded and such part is not severable from the rest of the contract.

Suit for declaration(S.34):Conditions: 1) That the plaintiff is entitled to a legal character at the time of the suit or any right as to any property.

2) Defendant has denied or he is interested to denying that character or right of the plaintiff.

3) The plaintiff is not in a position to ask for relief consequential upon the declaration. IF these conditions are satisfied, the plaintiff need not ask for any further relief than mere declaration. But the court shall not make any such declaration if he, being able to seek further relief than a mere declaration of title, omits to do so. (For details see under heading further relief)

Injunction(S.38): Conditions: Injunction is granted to prevent the breach of obligation existing in favour of the plaintiff and against the defendant. The term obligation means a duty enforceable by law.

Additional conditions: 1) There  exists no standard to ascertain the actual damage caused, or likely to be caused, by the invasion;

2) If  the invasion is such that compensation in money would not be affordable relief; c) Injunction is necessary to prevent multiplicity of proceedings.S.41 says when Injunction shall not be granted.

S.41. Injunction when refused: An injunction cannot be granted. –

(a) To restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restrain is necessary to prevent a multiplicity of proceedings;

(b) To restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;

(c) To restrain any person from applying to any legislative body.

(d) To restrain any person from instituting or prosecuting any proceeding in a criminal matter;

(e) To prevent the breach of a contract the performance of which would not be specifically enforced;

(f) To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will  be a nuisance;

(g) To prevent a continuing breach in which the plaintiff has acquiesced;

(h) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

(i) When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;

(j) When the plaintiff has a no personals interest in the matter. S.42: If the contract consists of positive agreement and negative agreement, merely because court enforce positive agreement it doesn’t bar the court to enforce the specific performance of negative agreement.  However, plaintiff has to perform his part of contract so far as it is binding on him.

LIMITATION ACT, 1963:

Right is not extinguished but right to agitate it is barred. However, adverse possession and Easement by prescription are exceptions to this rule.

The following are the kind of Files we see in Courts: Suit, application or Petition, Appeal, Revision, Execution Petition. If presentation of file is after expiry of time period, such file shall be dismissed even if such defense is not taken by the defendant. This is the duty of the court. In case of pauper the date on the application to permit him to treat as pauper is the date of institution of suit.  IN case of set-off the date on which it is claimed in the written statement. In counter-claim the date on which it is claimed.

Extension Time period for various kinds of files:

Sufficient Cause: As per S.5 the court can entertain filing of an appeal or an application if sufficient cause is shown for fling them after the expiry of prescribed period of limitation. This rule of sufficient cause is not applicable to suits and execution proceedings under O21 of C.P.C. However, O.21 Rule 105 CPC, 1908 permits to file execution application on this ground.

 Closure of Court:  If the court is closed on last day on which suit, appeal or application has to be filed, the same can be filed on the next working day. If the court is closed during any part of its normal working hours it remains closed on that day.

 Legal disability: Person in whose favour right to sue arises is suffering from any of the following disabilities, he can file the proceeding upon the cessation of disability. There are three kinds of legal disabilities:

  1) minority      2) insanity     3) idiocy.

  (a) If a person suffering from one disabilty is affected again by another disability, such person can file suit after     cessaton of both disabilities.

   (b) If the legal disability continues tilll death of his legal representative can file within same period after the death of the disabled person.

   (c) If legal representantives also affected by any above said liability.The application of limitation starts after recovery from such liabilty.

   (d) Where disability is ceased then the person died, within the allowed period to him, his legal representatives can file within remaining period. No fresh period available.

This section doesnot apply to following proceediungs:

1. Applicaion for final decree in mortgages.

2. For leave of appeal

3. Application to setaside expartee decree.

4. Application for pre-emption.

5. For the purpose of this section minor includes a child in the womb.

S.7 Disability of one of several persons : If one of the several persons jointly entitled to insitute a suit or make an application for the execution of decree is under disability, time will run against them if the discharge can be given without the concurrence of such person.

Time will not run against them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.

S.8: In no case, after ceasition of disability or death, time will not run for more than three years for any suit or application. S.6&7 also donot have application to enforce rights of pre-emption.

 S.9: Once time has begun to run, no subsequent disability or inability to institute a suit or make an application stop it.

 S.10: The above rules in this Act of limitation are not applicable in a suit against a person in whom the property has become vested in trust for specific purpose.

Section 12: The starting day is excluded from counting limitation. The time taken for obtaining certified copies shall be excluded.

Section 13: The time spent for obtaining leave, so as to file suit as an indigent is excluded.

Section 14: If suit is filed in a court which has no jurisdiction is excluded, provided it is done with good faith after exercising due diligence.

Section 15: If any suit or application for the execution of a decree has been stayed by an injunction order, such time period shall be excluded. If notice or sanction is required to file proceedings before court shall be excluded. Person in whose favor or against cause of action exists is died and there is no legal representative to such the time period during which legal representative comes into existence time shall be excluded. If any person purchased the property in the execution of court decree but one of the interested party sought for seaside of sale and same is pending but was dismissed ultimately, this period is excluded from in calculating the suit for possession filed by such auction purchaser. The time during which the defendant is absent from India or from.

Person died or non-existence of legal representative: If a person in whose favor or against whom cause of action exists is died and there is no legal representative to sue or to be sued, till the arrival of  legal representative of such deceased, time shall be excluded(S.16).

 S.17:  Effect of fraud or mistake : If due to fraud or mistake on part of the defendant or respondent plaintiff could get the knowledge of his right or title, the period during such fraud or  mistake occurred is excluded from period of limitation. The application must be filed within one year from the date of knowledge of fraud or mistake.

 

Days Excluded From time period due to Technical Reasons:

1. The day on which court is closed.
2. The day from which such period is to be Counted for any suit, appeal or appliaction.
3. Time between date on which Judgment pronounced and the time requisite for obtaining a copy of the decree (Appeal or an application for leave to appeal or for revision or for review of a judgement).
4. The time during wihich the application to sue or appeal as a pauper has been prosecuting for such leave shall be exculded.
5. The time which the plaintiff has been prosecuting with due diligence another civil proceeding against the defendant provided the procedding relates to the same matter in issue: (a)It must be prosecuted in good faith  (b)Defect of jurisdiction or cause of like nature, court unable to entertain it.  Order 23 R 2 of C.P.C shall not override S.S(1).

6. If any suit or application for the execution of a decree has been stayed by injunction or order.
7. If notice or sanction is required such time shall be excluded.
8. For any suit or application for execution of a decree by any receiver appointed in proceedings for the adjudication of a person as an insolvent, the period beginning with the date institution of such proceeding and ending with the expiry of three months from the day of appointment of such receiver or liquidator, as the case may be, shall be excluded. This provision applies for an application for execution of a decree by any receiver. Similarly, this provision is applicable to any liquidator appointed for winding up of a company.
9. IF any person purchased the property in the execution of court decree but one of the interested party sought for setaside of sale and same is pending but was dismissed ultimately, this period is excluded from in calculating the suit for possession filed by such auction purchaser.
10. The time during which the defendant is absent from India or from the territories outside India are excluded for period of limitation for any suit.

Acknowledgement by person under liability:  Acknowledgement by person under liability means an admission of the truth of one‘s own liability. If before the expiry of time for any application or suit in respect of any property, the acknowledgement of liability in respect of such property or right is made in writing signed by the party against whom such property or right is claimed a fresh period of limitation is computed from the time when the acknowledgement was so signed (S.18)

Part Payment by person under liability: If there is a part payment of debt or of interest on a legacy before the expiry of limitation period fresh period of limitation shall be computed from the time when the payment was made. Further, person making part payment should indorse the same and should sign(S.19).

 Time Period for Certain Important Suits:  Period of limitation means the period of limitation prescribed for any suit, appeal, or application by the schedule and prescribed period means the  period of limitation computed in accordance with the provisions o f the Act.

There are 137 clauses, spread over three divisions.

Ist division speaks about suits (1 to 113).  IInd division speaks about suits (114 to 117)

IIIrd division speaks about suits ( 118 to 137).

In the first division there are 10 parts.

1. Suits relating to Accounts – 1 to 5 (three years limitation)
2. Suits relating to contracts – 6 to55 (three years limitation)

III. Suits relating to declarations – 56 to 58 (three years limitation)

1. Suits relating to Decres and instruments– 59 to 60 (three years limitation)
2. Suits relating to immovable property:61 to 67 (12 yrs limitation except 61 (a)(c)) A.61 (a) By a Mortagor to redeem or recover the possession of immovable property mortgaged- Thirty years A.61 (c) To recover surplus collection received by the mortgage after he mortgage has been satisfied – Three years. A.63(a) By a mortgagor for foreclousre: thirty years. VI. Suits relating to moveable property– 68 to 71 (three years limitation ) Suits for which there is no prescribed period – 113 (three years limitation ) In the second divison there is ony one part. This dividion is named as Appeals(114 to 117).                                                                                                                                                                                                                                                                                                                        Time Period for Certain Important applications:                                                                                                   1. Leave to appear and defend in a summary suit: 10 days (118).                                                                                    2. To bring L.R‘s on abatement : 90 days(120).                                                                                                                       3. To setaside an abatement : 60 days(121).                                                                                                                        4. To setaside a sale in execution of decree, including any such application by a Judgeemnt Debtor : 60 days(127).                                                                                                                                                                                           5. For leave to appeal as a pauper to High court: 60 days(130).                                                                                      6. To any court for exercise of its powers of revision u/ cpc or cr.pc: 90 days(131).                                                      7. To the High court for a certificate of fitness to appeal to supreme court u/cl(1) of 132A or 133 or 134 (c) of the constution : 60 days(132).                                                                                                                                                     8.To the supreme court for SLP —- in case of death sentence if leave to appeal is refused : 60 days —In any other case : 90 days (133).                                                                                                                                                  9.For delivery of possession by a purchaser of immovable property at a sale in execution of decree ——- one year(134).                                                                                                                                                                                          10. Execution of decree of granting Mandatory injunction : three years(135).                                                                11. Execution of decree other than Mandatory injunction : 12 years(136).                                                                   12. Any other application for which no period is prescribed elsewhere in this division: three years(137).

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005:

 Who is an aggrieved?                                                                                                                                                      Ans: As per S.2 the term aggrieved person means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.

Who is a Child?                                                                                                                                                                            Ans: As per S.2 the term Child means any person below the age of eighteen years and includes any adopted, step or foster child.

Whether Minor male is entitled for reliefs under this Act?                                                                              Ans: Yes, as the term “child”is defined under the law, minors will also be within the ambit of the definition of domestic relationship. Section 2(b) DV Act defines Child.

The mother can make an application on behalf of her minor child (whether male or female). In cases where the mother makes an application to the court for herself, the children can also be added as co-applicants for a relief under the DV Act. The Court can also, whenever appropriate, appoint a guardian or next friend to represent the child.

The female who is in “live-in relationship” or “relationships in the nature of marriage” is entitled for relief under the Said Act?                                                                                                                                               Ans: Yes, Sec 2(f)of the DV Act defines the expression “Domestic Relationship” or “Relatiosnships in the nature of marriage” includes those relationships where there is no marriage between the parties in the sense of solemnization of a marriage under any law. Yet the parties represent to the world that they are a couple and there is stability and continuity in the relationships. Such relationships also known as “live-in relationship”

Different court judgments have discussed on different disputes pertaining to live-in relationships. Live-in relationships are now considered on par with marriage under a new Indian law pertaining to domestic violence. The provisions of the Domestic Violence Act, 2005 are now extended to those who are in live-in relationships as well. The amendments intend to protect the victims of domestic abuse in live-in relationships. Section 2 (g) of the aforementioned Act provides that a relationship between two individuals who live together or have lived together in the past is considered as a domestic relationship. A woman who is in a live-in relationship can seek legal relief against her partner in case of abuse and harassment.

What are the features of the live-in relationships?                                                                                              Ans: In Velusamy v/s Patchaiammal (2010) The Supreme Court stated that a ‘relationship in the nature of marriage’ is akin to a common law marriage. For the purposes of claiming benefits under the domestic violence law, the claimant must satisfy four requirements i.e. (a) the couple must hold themselves out to society as being akin to spouses; (b) they must be of legal age to marry; (c) they must be otherwise qualified to enter into a legal marriage, including being unmarried and (d) they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

Does the use of term domestic relationship bring “relationships in the nature of marriage” on par with marriages?                                                                                                                                                          Ans: The law simply provides protection from violence to all women whether they are sisters, mothers, wives or partners living together in a shared household. The law however, does not state anywhere that an invalid marriage is valid. It provides protection from violence, the right to reside in the shared household, temporary custody of children ,etc. However, for succession to the property of a male partner or in deciding the legitimacy of children, the general law of the land or the personal laws of parties will have to be relied upon.

 

Against whom the complaint can file?                                                                                                                       Ans: A women can file a complaint against any adult male perpetrator (S.2 (q)) of an act of violence. In cases where the woman is married, or lives in a relationship that is in the nature of marriage, she can also file a complaint against the male or female relatives of the husband /male partner who have committed the violence.

Who fall within the meaning of” relatives” under Section 2(q)?                                                                    Ans: The word “relative “has not been defined in the DV Act. Hence the ordinary meaning will have to be assigned i.e., father, mother, sister, uncle, brother of the respondent who may included in the word “relative in section 2(q). It also include female relatives.

Can a complaint filed against husbands’ female relatives?                                                                                Ans: Yes, orders can be passed against the female relatives of the husband except the relief of dispossession against the female relative under sec.19 (1) of the Act.

Can mother in law file an application for reliefs against the daughter-in- law?                                        Ans: No, a mother –in –law cannot file an application against her daughter-in –law(Section 2(q))However in cases where a mother-in-law is facing violence at the hands of her son and daughter-in –law as abetting the acts of violence committed by the son.

How long does an interim order remain in force for?                                                                                           Ans: Interim orders shall remain in force till such time either of the parties applies for its alteration, modification or revocation. In order to get such an order, a change in circumstances has to be shown (section 25(2)).Interim orders are also vacated on the granting of the final order by the Court.

Will a divorced wife have a right to claim relief under this DV Act from her Ex-husband?                 Ans: The answer to this question depends on the facts of the case. In cases where, at the time of divorce, she has in express terms waived such a right, she cannot claim it in the future.

Can there be any appeals from an interim orders?                                                                                              Ans: Section 29 of the DV Act allows appeals to session courts from any orders passed by magistrate. No appeal should lie from an order which have not affected the rights of the parties or is procedural.

Only married men are in danger?                            .                                                                                                  Ans: No. Domestic Violence Bill extends to live-in relationships too.

 What is the meaning of Domestic relationship?                                                                                                    Ans: Domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

Who is a respondent?                                                                                                                                                       Ans: As per S.2(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:   Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

What is meant by Shared house hold?                                                                                                                       Ans: As per S.2(s) the term  “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person

and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;

What is the meaning of the term domestic violence?                                                                                          Ans: As per S.3(g) of the Act, the term “domestic violence” has the same meaning as assigned to it in section 3; S.3 defines it as follows:

Definition of domestic violence.-For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it –

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.-For the purposes of this section,-

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes- (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.-For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

Who has power to inform the protection officer or Magistrate about the occurrence of Domestic violence?                                                                                                                                                                                    ANs: As per S.4 any person who has a reason to believe that  an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer or magistrate. And there is no liability, civil or criminal, shall be incurred by any person for giving in good faith of information given

What is the procedure for obtaining orders under this Act from the court?                                             Ans: The relevant procedure can be known from S.12 to 17.

1)  Any aggrieved person or a protection officer or any person on behalf of the aggrieved person may present an application to the magistrate seeking one or more reliefs under this Act.

2) The relief sought in the application may include payment of compensation without prejudice to the right to institute a suit for damages and compensations for injuries caused due to domestic violence.

3) On registration of application, the Magistrate shall fix the first date of hearing, which shall not be beyond three days from the date of receipt of application.

4) Every application shall be disposed off within sixty days from the date of its first hearing as far as possible.

5) The notice of summons to the respondent or any other person will be entrusted to the protection officer who shall serve on the respondent within maximum of two days.

6) During the stage of the proceedings the magistrate may direct the respondent or aggrieved person singly or jointly to undergo counseling with any member of a service provided who is qualified in that respect.

7) When such a directions are give he shall fix the next date of hearing within a period not exceeding two months.

8) The magistrate may secure the service of such person preferably a woman, whether related to the aggrieved person or not to assist him in discharge of his functions.

9) The Magistrate may conduct the proceedings in camera if the situation so warrants

10) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household whether she has any right or beneficial interest in the same.

What are the orders that can be passed by the Magistrate?                                                                              Ans: The relevant procedure can be known from S.18 to 25.

The magistrate may after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place may pass a protection order in favour of the aggrieved person:-

Protection orders: S.18: A protection order may contain an order prohibiting the respondent:

1) from committing any act of domestic violence.

2) aiding or abetting in the commission of acts of domestic violence.

3) violence entering the place of employment of the aggrieved person or if child, its school or any other palace frequented by the aggrieve person.

4) attempting to communicate with aggrieved person with the aggrieved person without the leave of the magistrate.

5)  alienating the assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties.

6) Causing violence to the dependents other relatives or any person giving assistance to the aggrieved person.

7) Or committing any other act provided in the protection order.

Residence orders: (S.19)): 1) The magistrate while disposing of the application may also pass a residence order:-

(a) restraining the respondent from dispossessing or disturbing the possession of the aggrieved person from the shared household.

b) restraining the respondent or his relatives from entering the shared house hold

c) restraining the respondent from alienating or disposing off or encumbering the shared house hold

d) restraining the respondent from renouncing his rights in the shared household except with the leave of the court

e) irecting the respondent to secure alternate accommodation to the aggrieved person of the same level enjoyed by her in the shared house hold or to pay rent for the same:

Provided that no order directing the respondent to remove herself from the shared household shall be passed against any person who is woman.

2)  The magistrate may impose additional conditions or pass any other directions in order to protect the safety of the aggrieved person or her child

3)  he magistrate also order for execution of a bond by the respondent for prevention of domestic violence

4)  An order also may be passed directing the police to give protection to the aggrieved or to assist in the implementation of the orders.

5)  An order may also be made to pay the rents and also to return the stridhan property or valuable security to which she is entitled

What orders can be passed by Magistrate w.r.t monetary reliefs?                                                               Ans:  S.20  1) The  Magistrate while disposing an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to:-

(a) the loss of earnings;     (b) the medical expenses;          (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order  under or in addition to an order of maintenance under section 125 of the Code of Criminal  procedure, 1973 or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

4) The Magistrate may also order the employer or debtor of the respondent to make payment direct to the aggrieved person or deposit with the court a portion of the wages or salaries or debt due to or accrued to the respondent

Whether Magistrate can pass custody orders?                                                                                                      Ans: Pending the proceedings the magistrate may grant temporary custody of any child to the aggrieved peon or to any one on her behalf and specify the arrangements for the visit of such child by the respondent.

Whether Magistrate can pass Compensation orders?                                                                                        Ans: The magistrate can pass an order directing the respondent to pay compensation and damages for the injury, mental torture and emotional distress caused by the acts of domestic violence committed by the respondent.

Which court has Jurisdiction to entertain applications under this Act?                                                     Ans: S.27 of the Act talks about Jurisdiction. It says the Judicial Magistrate of First class can entertain applications under this Act in any of one of the following conditions are satisfied: a)  the person aggrieved permanently or temporarily resides or carries on business or is employed; or  (b) the respondent resides or carries on business or is employed; or

(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.

(2) Any order made under this Act shall be enforceable throughout India.

26. Whether violation of protection order is an offence under this Act?

Ans: yes as per S.31(1) ,the violation of protection order or interim protection order by the respondent is an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. As per S.32, the offence is cognizable and non-bailable. The sole testimony of the aggrieved person is adequate for the court to conclude that an offence under sub-section (1) of section 31 has been committed by the accused.

If protection officer fails discharge his duties he shall be liable to imprisonment which may extend to one year or with fine which may extend to twenty thousand rupees or with both.   This Act is in addition to existing laws. Appeal lies to Court of Session from any order passed by Magistrate. The time limitation to file appeal is thirty days on receipt of order by aggrieved person aggrieved by the order. (S.29). The Protection officers are public servants as per S.21 of the IPC. The applications under this Act shall be disposed as per Cr.P.C. The copies of orders shall be given to the parties to the application free of cost.