Appointment of Commissioner:
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.
AMENDMENT OF PLEADINGS:
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.
SET-ASIDE EXPARTE ORDER:
O.9 R7 CPC: Where the court has adjourned the hearing of the suit on exparte, 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 for filing this petition is thirty days as per Limitation Act.
SETASIDE EXPARTE DECREE:
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.
BRINGING LEGAL REPRESENTATIVES ON RECORD:
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. Death of a party abates the suit unless right to sue survives. The right to sue survive either in favour parties who are already on record or if legal representative (LR) are brought on record within 90 days. It is the duty of the counsel to communicate the death to the court. If there is no LR court can appoint any person as LR provided he has no adverse interest to that of the decease person. If the death of the party is between the conclusion of the hearing and the pronouncing of the judgment, the court can pronounce the judgment and it shall have the same force and effect as if it had been pronounced before the death took place.
FILING PETITION AFTER EXPIRY OF TIME PERIOD:
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 if sufficient cause is 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.
AVEAT:
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.
Execution Petition:
According to O.21 R.10 of CPC If 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.
II nd part
O.7R.11: Rejection of Plaint O7R.1: Receive documents
OXVII R3: Rejection of document on ground of relevancy and admissibility
O.1.R.10: Power to add parties
O.7R.11: Rejection of Plaint: The court on its own or the defendant soon after receipt of plaint and documents file a petition under this rule seeking the court to reject the plaint if plaint fails to full fill any of the conditions laid down hereunder: The grounds for rejection of plaint are settled. They are spelled out in Order VII Rule.11 of CPC. They 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.
It must be noted that to register plaint documents need not be filed: It is held in Sai Baba Kirana and General Merchant v Manjira Chit Fund Co., Banswada: 2004(3) ALD 843. To register plaint, it is enough if the plaint discloses cause of action. At the stage of registering plaint court shall not examine whether the plaint allegations are substantiated by material allegations. It is also not the duty of the court to go into the validity of the documents annexed to the plaint. In the above case plaint is rejected at the stage of numbering on the ground that chit agreement basing on which amount is claimed is not filed. The matter went in revision to Hon’ble High court of A.P and court directed the lower court to number the plaint with above reasoning.
Receive documents: The plaintiff or defendant shall file all the documents on which he is relying at the time of plaint or written statement as the case may be. However, if any party to wishes to file documents at subsequent stage, it can be done with the permission of the court. The plaintiff can file such petition under O.7 Rule.1 CPC and defendant under O.8 Rule.1 CPC.
OXVII R3: Rejection of document on ground of relevancy and admissibility: The court has to receive only relevant and admissible documents as evidence. Hence, if any person or court receives any document in evidence court has power to reject on these grounds.
The term relevant refers to those facts which can be used to prove a case in court. As per Indian Evidence Act,1872 those facts that are listed under S.6 to S.55. These facts are called relevant facts. Admissibility: Relevant facts to read as evidence by judge in consideration of the case before him must be placed or produced with the aid of certain specified persons. This rule is called ‘Rule of Admissibility’. Non-compliance of this mandate incapacitates the court not to read such fact as evidence, even though it is a relevant fact listed under S.6 to 55 of the Act.
Joinder of Parties: O.1 Rule.10: If the proper or necessary party to the suit is not joined as party to the suit, party on either side or court on its own motion can make any person as party to the suit at any stage of the suit. The only test is whether the joining of such person as party to the suit is necessary for the determination of the real matter in dispute.