Unit-2 (2) (1).pptx NOTES VIPS COLLEGE PPT

DPC Unit 2

1. Unit-2 Drafting,Pleading & Conveyancing Ms. SAMRITI, ASSISTANT PROFESSOR, VSLLS, VIPS-TC DISCLAIMER: No copyright violation is intended. The content is purely for educational purpose.

2. Application for setting aside ex parte decree Order IX, Rule 6 of the Code provides for the procedure that is to be adopted when on the first date of hearing of the suit only the plaintiff appears and the defendant does not appear despite the summons being duly served on the defendant, or, summons being duly served on the defendant but not within sufficient time, or, when summons were not duly served. Under Order IX, Rule 6 of the Code, the defendant can be proceeded against ex parte provided summon were duly served upon him within sufficient time. Order IX, Rule 7 of the Code contemplates a situation where by the case was proceeded ex parte since the defendant did not appear before the court of law, or, where the defendant failed to appear before the court of law after filing of the written statement, but, thereafter the defendant appears before the court of law and assigns good cause for his previous non-appearance, and thereby, prays for the setting aside of the ex parte order.

3. Cont. Order IX, Rule 13  of the Code states that an  ex parte  decree passed against a defendant can be set aside if the defendant satisfies the court on either of the two counts: (a) the summons were not duly served on the defendant, or, (b) the defendant was prevented by any “sufficient cause” from appearing before the court when the suit was called out for hearing. The court has the discretion to set aside the  ex parte  decree passed against the defendant on such terms as to costs or otherwise (deposit of decretal amount in the court) as the court deems fit in the facts and circumstances of each case.

4. Cont. An ex parte decree is a decree that is passed by the court in absence of any response from the defendant as per Order 9 Rule 6 of CPC . As per Order 9 Rule 13 , the defendant may apply before the court that passed the decree to set it aside on the following grounds: If he satisfies the court that the summons was not duly served he was prevented by any other sufficient cause from attending the hearing. For example, bona fide mistake as to the date or hearing, late arrival of the train, etc. are sufficient causes for the absence of the defendant. Such an application for setting aside may be made within 30 days from the date of the decree as per Section 123 of Limitation Act.

5. Application for setting aside ex parte decree

6. Cont. Body of the application Prayer

7. Exercise-I: Application for setting aside ex parte decree Application Under Order IX Rule 13 Of The Code Of Civil Procedure Filed By The Defendant for Setting Aside Exparte Decree passed by the High Court on 8.8.2021

8. Suit under O. XXXVII of the Code of Civil Procedure ( Summary Suits) The court dealing with summary suits can pass the judgment in the favour of the plaintiff if: the defendant has not applied for leave to defend or if such application has been made but refused, or the defendant who is permitted to defend fails to comply with the conditions on which the leave to defend was granted . This order shall apply to the following Courts-The High Courts, City Civil Courts and Courts of Small Causes and Such other Courts as may be specifically empowered in this behalf by the High Court from time to time by a Notification in the Official Gazette:

9. Cont. The Order applies to the following class of suits: Suits upon bills of exchange, hundies and promissory notes Suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant , with or without interest arising on a written contract, or on an enactment wherein the amount to be recovered is a fixed sum of money, or a debt other than a penalty, or guarantee, where the claim against the principal is in respect of a debt or for liquidated demand only. suit for recovery of receivables instituted by any assignee of a receivable. In case of a summary suit it should be specifically averred that the suit has been filed under order XXXVII. No other claim has been made other than what lies within the ambit of order XXXVII.

10. Cont. Where plaintiff desires to institute a plaint under order XXXVII , it shall contain specific averment to that effect & that no relief which does not fall within the ambit of this rule has been claimed in the plaint. ( Under Order XXXVII of the Code of Civil Procedure, 1908 ) to be inscribe immediately below the suit number in the title of the suit. Leave to defend: The Defendant is obliged to enter appearance within 10 days of service of summons. After entering appearance, the Defendant shall be required to file its Leave to Defend as in a summary suit the Defendant does not have a right to contest till it proves that there is a triable dispute and that the debt is not an admitted debt/liability.

11. Exercise-I: Suit under O. XXXVII of the Code of Civil Procedure ( Summary Suits) A had to be recover Rs. 5 crores from B for cement supplied by A. In lieu of a contract signed by both the parties at New Delhi in September 2018. The price of cement bag was fixed at Rs. 500/- per kg and the entire order was to be delivered in six months by A . Draft a suit for recovery of Rs. 5 crores.

12. Suit for Permanent Injunction All the civil courts are empowered to issue injunctions. An injunction may be issued for and against individuals, public bodies or even State. Civil suit is an effective legal remedy by any person against the other seeking a Relief of restraint under the facts when the person approaching the court is aggrieved by any mischief of the other person. The Injunction may be temporary or permanent as per Specific Relief Act. In some cases Injunction will not be issued. Circumstances in which injunction will not be issued are: ( i ) where damages are the appropriate remedy, (ii) where an injunction is not the appropriate relief, (iii) where the plaintiff is not entitled to an injunction on account of his conduct, (iv) where the contract cannot be specifically enforced, (v) where the injunction would operate inequitably. Suit can be filed by any affected party. Format of Suit for Injunction is given below

13. Exercise: Suit for Permanent Injunction Suit for Permanent Prohibitory Injunction and Mandatory Injunction restraining the defendant from raising any construction over the suit land comprising in Khata Khatauni No. 08, Khasara No. 1232 measuring 100 sq ft Biswas situated at Dwarka. Restraining the defendant from causing any construction over the suit land against the Laws and Rules. Also directing the defendant to remove illegal and unauthorised construction over the suit land owned and possessed by the plaintiff.

14. Suit for Dissolution of Partnership According to Section 39 of the Partnership Act, dissolution of a firm is The dissolution of a partnership between all the partners of a firm. Dissolution of Partnership by Agreement- According to Section 40 a firm may be dissolved with the consent of all the partners or in accordance with a contract between the partners.

15. The Court may dissolve a firm on grounds specified u/s 44 of PA,1932 A partner has become of unsound mind A partner has become in any way permanently incapable of performing his duties as partner A partner is guilty of conduct which is likely to affect prejudicially the carrying on of the business regard being had to the nature of the business A partner wilfully or persistently commits breach of agreements relating to the management of the affairs of the firm of the conduct of its business; or otherwise so conducts himself in matters relating to the business that it is not reasonably practicable for the other partners to carry on the business in partnership with him, A partner has in any way transferred the whole of his interest in the firm to a third part , The business of the firm cannot be carried on save at a loss , Or on any other ground which renders it just and equitable that the firm should be dissolved.

16. Exercise: Suit for Dissolution of partnership Draft a suit for Dissolution of partnership between Neha, Rita and Sita . The partnership deed was made on 10.4.2019 and was for the purpose of supplying hand sanitizer and face mask to various companies. Sita has lost trust on both his partners Neha and Rita as she thinks that they are doing similar business outside the Partnership.

17. Appeal from Original Decree under Order 41 of CPC Rule 1 Order XLI of Code of Civil Procedure 1908 " Form of appeal, What to accompany memorandum " (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the Judgment on which it is founded: Provided that where two or more suits have been tried together and a common Judgment has been delivered therefor and two or more appeals are filed against any decree covered by that Judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the Judgment. (2) Contents of memorandum- The memorandum shall set forth, concisely and under distinct heads , the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively . (3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.

18. Cont. Rule 2 Order XLI of Code of Civil Procedure 1908 " Grounds which may be taken in appeal" The appellant shall not, except by leave of the Court , urge or be heard in support of any ground of objection set forth in the memorandum of appeal, but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule: Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

19. Cont. Rule 3 Order XLI of Code of Civil Procedure 1908 " Rejection or amendment of memorandums " (1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed , it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there. (2) Where the Court rejects any memorandum, it shall record the reasons for such rejection. (3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment.

20. Cont. Rule 5 provides Stay by Appellate Court (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 of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause Order stay of execution of such decree.

21. Cont. Rule 30 provides Judgment when and where pronounced- (1) The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders. (2) Where a written judgment is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment is pronounced. Rule 31 provides Contents, date and signature of judgment- The judgment of the Appellate Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and, (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

22. Cont. Rule 32 provides what judgment may direct The judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly. Rule 33 provides power of Court of Appeal The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees

23. Essentials of Appeal from Original Decree under Order 41 of CPC

24. SAMPLE DRAFT

25. Cont.

26. Cont. GROUNDS RELIEF SINGED BY APPELLANTS (THROUGH- THE ADVOCATE) PLACE & DATE

27. Exercise The Civil Judge granted a decree of Rs.5 lakhs with interest to Tom against Jerry. Jerry wants to challenge the decretal amount on the ground of limitation amongst other grounds as well as the grant of interest at the rate of 18% per annum. Draft an Appeal against the said decree for Jerry.