INTERLOCUTORY PETITIONS:
On civil side following are the important interlocutory applications that an advocate would frequently come across. They are: O.39 R.1 & 2, O.39 R.2A, O.38 R5, O.26 R.9, O.22 R4, O.6 R.17, O.9 R.7, O.9 R.13, S.148A CPC.
One Ram filed a suit for recovery of money for an amount of Rs.1,00000/-(Rupees One lakh only)in the court of Jr.Civil Judge, Medchal. The same is numbered as OS.no.01/2011. At the time of filing this suit Ram reliable learnt that krish is making hectic efforts to dispose the immovable house property lying in the village so as to avoid the execution of decree that may be passed against him. In these circumstances Ram is advised filed an IA u/O.38 R.5 of CPC seeking the court to attach the house property of Krish situated in the Shameerpet village. Draft a petition u/O.38 R5 CPC.
Upon registration of plaint, suit summons are issued to defendant. Krish received the same, but failed to appear before the court on the day fixed for appearance i.e., dt:03.02.2011. Hence, he is set exparte and matter is posted for ex parte plaintiff evidence on 10.02.2011. By this time Krish came to know about ex parte proceedings and intend to file a petition u/O.9 R7CPC seeking the court to set aside the exparte order dt:10.02.2011. Draft an IA u/O.9 R7 CPC.
Assume that Krish (defendant) didn’t file the petition u/O.9 R7 CPC as he met with an accident, court proceeded to record ex parte plaintiff evidence on 10.02.11 and heard the matter and pronounced the ex parte judgment Dt:15.02.11. One year later, plaintiff filed an execution petition and court issued order for attachment of movable property of Krish. The court Baileef, went to the house of the defendant and seized articles listed in the Execution petition and deposited in the court. At that time plaintiff’s wants to contest the matter. Hence, he is advised to file petition u/O.9 R13 CPC seeking the court to setaside the exparte Judgment and decre dt:15.02.2011. Since, krish is filing the petition after one month, his application shall be accompanied by S.5 of Limitation to condone the delay. Now draft a petition u/s.5 of the Limitation Act. Drat IA u/s.O9.R13 CPC. Also draft an Execution Petition u/O21 R.10 CPC to be filed by the decree holder seeking the attachment of movable property.
Plaintiff filed a suit for injunction restraining the defendant from not interfering with the suit property. Since, it may take long time to pass a Judgment and decree, he filed an application O.39R.1 & 2 CPC seeking the court to pass an interim order restraining the respondent/defendant not to interfere with his peaceful possession of the petition property pending disposal of the suit. Draft an IA O.39R.1 & 2 CPC. Prior to filing of the suit, defendant having sensed that plaintiff may file a suit and may also move an application u/O39 R 1& 2 CPC and court if grant order on ex party ad interim basis and which may cause hardship to him, he intends to file a caveat. Draft a CAVEAT Petition u/s.148 A of CPC.
Soon after filing written statement plaintiff died. As the cause of action survives, son of the Plaintiff wants to come on record and contest the suit. Hence, he is advised to file Legal representative petition. Hence, Draft an IA O22 R3 CPC.
The son of the plaintiff, who is brought on record, in view of denial title by the defendant by way of written statement wants to add another relief of declaration by amending the plaint. So draft a petition seeking the court to amend the plaint. Draft an IA O6 R17 CPC.
Soon after examining the plaintiff as PW1, plaintiff thought it necessary to examine neighboring landowner one Shri Raju to examine as witness. Since Raju is an old aged person and not in a movable condition and his evidence is material to determine the case, plaintiff is advised to file a petition u/O.26 R.1 CPC. Draft a petition seeking the appointment of commissioner u/O.26R1 CPC.
Hints for drafting above petitions:
O.39 R1&2 CPC: The main object of granting temporary injuction is to maintain the status quo and with a view to protect the interests of the parties pending disposal of the suit. It is the duty of the court to consider the affidavits and the relevent documents in the matter of granting or refusing to grant temporary injuction. Petitioner seeking the releif shall show i) Prima facie case ii)Balance of convenience iii) irreparable injury. Irreoparable injury is one which is substantial which cannot be remedied by damages.iv) the conduct of the parties.
O.38 R1 CPC: R:5 says: Where at any stage of a suit, the court is satisfied, by affidavit or otherwise,– (a)that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, (i) is about to dispose of the whole or any part of his property or (ii) is about to remove the whole or any part of his property from he local limits of the jurisdiction of the court, or The court may direct the defendant, within a time to be fixed by it, either to furnish security, of such sum as may be specified in that order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. If the defendant fails to furnish security, which is sufficient to satisfy decree within time fixed, it can pass an order of attachment of any specified property or such portion thereof as may be sufficient to satisfy the decree.
O.26 R1 CPC: S. 75 & O26 CPC says court may issue commission for any of the following purposes: to examine witness; to make local investigation; to adjust accounts; to make partition; to hold investigation; to conduct sale; or to perform ministerial act. In order examine a person as witness folioing conditions must be satisfied: (i)If the person to be examined as a witness within the local limits of its jurisdiction who is exempted under this code from attending the court or who is from sickness or infirmity unable to attend it; or in the interest of justice, or for expeditious disposal of the case, or for any reason, his examination on commission will be proper; or (ii) if he resides beyond the local limits of the jurisdiction of the court; or (iii) if he is about to leave the jurisdiction of the court; or (iv) if he is a government servant and cannot, in the opinion of the court, attend without determent to the public service; or(v) if he is residing out of India and the court is satisfied that his evidence is necessary. The court may issue commission either suo motu or on the application of any party to the suit or of the witness to be examined.
O.6 R17 CPC: The court may allow the parties at any stage to amend the pleadings for the purpose of determining the real questions in controversy between the parties. However, no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
O.9 R7 CPC: Where the court has adjourned the hearing of the suit ex parte, and the defendant at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. The time limitation is thirty days as per Limitation Act.
O.9 R13 CPC: In any case decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into the court or otherwise as it thinks fit and shall appoint a day for proceeding with the suit.
O.22 R2&3 CPC: If the plaintiff dies and right to sue survives, the court on application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
S.5 of Limitation Act: enables only a court to admit an appeal or an application aftrer the expiry of the prescribed period of limitation sufficient cause being shown for the delay. This section has no application to suits and execution proceedings under Order 21 of the CPC.A suficient cause should fulfill the following essentials: It must be a cause, which was beyond the control of the party invoking it.He must not be guilty of negilgence.His intention must be bonafide.
Execution Petition: According to O21 R.10 of CPC Where the holder of a decree desires to execute the decree, he shall apply to the court which passed the decree. Every application for the execution of a decree shall be in writing, signed and verified by the applicant. Such application shall contain following particulars namely: a) number of the suit b) names of the parties c)the date of decree d) whether any appeal has been preferred from the decree e) whether any payment is made with respect to decree f) the amount with interest due upon the decree or other relief granted g) the amount with interests due upon the decree h) the amount of costs i) the name and description of the person against whom decree is sought to be executed. J) the mode in which the assistance of the court is required: i) arrest of the person or ii) attachment of movable or immovable property. In case of movable property decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same. In case of immovable property is shall clearly set out the identification of property with boundaries and record pertaining to it. Further, it shall disclose the nature and kind and extent of interest of Judgment debtor.
S:148A Caveat: A caveat is a giving notice to the court not to grant or to take any step without notice given to the party lodging the caveat. Hence, no ex-parte order shall be passed against the caveator. Any person claiming a right to appear before the court on the hearing of such application may lodge a caveat in that behalf. Caveat shall remain force for 90 days.
IA’s TO BE DRAFTED: O.39 R.1 & 2, O.38 R5, O.26 R.1, O.22 R4, O.6 R.17, O.9 R.7, O.9 R.13, S.148A CPC, S.5 LIMITATION Act
Petition filed U/O.XXVI r/w151 CPC
AFFIDAVIT:
I Ram S/o Rajeev Age:30 years, Occ:Attoreny, R/O Shameerpet village and Mandal, Ranga Reddy District do hereby solemnly state on oath as follows:
1) I am the deponent and plaintiff herein in the above suit as such well acquainted with the facts of the case.
2) I submit that petitioner/plaintiff filed the above suit for Injunction seeking the court to restrain the respondent/defendant from interferes into suit property and that this matter is coming for evidence of PW2. His evidence is material to determine the case as he is the neighboring land owner and who is also witness to the sale transaction. However, he is an old aged person and not in a movable state so as to come before the court and give evidence. As such, non-examining him would put the plaintiff’s to irreparable hardship and loss.
3) I submit for the aforesaid reasons it is just and necessary to examine PW2 by appointing an Advocate commissioner to record his Evidence at his residence Shameerpet village of Shammer Pet Mandal. I am also ready to bear the necessary costs for this purpose. Hence, this affidavit.
Petition filed U/O.XXVI r/w151 CPC
For the reasons stated in the accompanying affidavit the Hon’ble court may be pleased to appoint an Advocate commissioner to record the evidence of PW2/Shivaji at his residence situated at Shameerpet Village of Shameerpet Mandal.
Date and Place: Counsel for the Petitioner.
Petition filed U/O.XXII Rule 2 r/w151 CPC
AFFIDAVIT:
1) I submit that originally my father who is the plaintiff filed the above suit for injunction seeking the court to restrain the respondent/defendant from into interfere into suit property. However, subsequent to filing of written statement, he died on 10.10.2011 and the said case is posted for today i.e.,16.11.2011 for taking steps to bring the Legal Representatives on record.
2) I submit that I am the only son of my father and I inherited the suit property as my father died intestate as such it just and necessary to bring me on record as plaintiff for proper and effective adjudication of the suit.
3) I submit for the aforesaid reasons to permit deponent herein to come on record as Legal representative of Late plaintiff and accord permission for consequential amendment in the plaint in the interests of justice. Hence, this affidavit.
Date and place: Deponent
Petition filed U/O.XXII Rule 2 r/w151 CPC
For the reasons stated in the accompanying affidavit the Hon’ble court may be pleased to permit the deponent to come on record as plaintiff as legal representative of Late XYZ and accord permission for consequential amendment in the plaint in the interests of Justice.
OIX R7 CPC
That the respondent/plaintiff filed the above suit against me seeking recovery of money for an amount of Rs.1,000000/-(Rupees One Lakh only). In the said suit court passed exaprte order against me as I was called absent on the day fixed for appearance.
I shall submit that I received notices from the Hon’ble court and aware of posting of the above case on10.10.2011 for my appearance. However, I couldn’t attend on that day as I was suffering from fever. As such, Hon’ble court is pleased to pass ex parte order against me for my non-appearance and that in my absence on 10.10.2011 is neither intentional nor wanton but accidental.
That if an opportunity is given to me I would contest the matter and therefore I pray the court to set-aside the exparte order, failing which I would be put to unbearable hardship and irreparable loss.
I pray the Hon’ble court to set aside the Exparte order dated:……..in the interest of justice. Hence, this Affidavit.
O39 1& 2 CPC
AFFIDAVIT
I Ram S/o………, Age:…….Occ:………, R/o: …………., Ranga Reddy District, do hereby solemnly affirm and sincerely state on oath as follows:
1) I am the petitioner and plaintiff of this suit as such I am well acquainted with the facts of the case. 2) I respectfully submit that I am the absolute owner and possessor of the petition schedule property. I purchased it property from one Raghav by way of registered sale deed dated 12.03.1984 for a valuable and lawful consideration. Pursuant thereto possession is delivered to me and since then I have peacefully in possession of the same.
3) I shall further submit that as the matter stood thus on 17.10.2011,while I was working on the land with my employees, respondent who is no manner connected to the suit land along with some unsocial elements and made an attempt to dispossess me. As such, I questioned their high handed actions of the respondent. Further, when they raised quarrel upon explaining the relationship between me to land upon the advise of near and dear they left the suit land. They left the land by threating me with dire consequences. Hence, I reported the matter to police. Though the same is received by the Police Shameer Pet, till date no action is taken against the culprits/respondent and his men. In these circumstances, I am afraid that unless my possession is protected I may be dispossessed from the petition property by way of high handed actions on part of the respondent.
Therefore, I pray the Hon’ble court to grant Temporary injunction restraining the respondent and his representatives and men, friends and person claiming through him from interfering with my peaceful possession and enjoyment over suit schedule property in the interest of justice.
Date & Place: Hyderabad, .08.2011 Deponent
Sworn and signed before me on this day of January at Machilipatnam, Identified by Shri Advocate Hyderabad.