MPCJ COMPREHENSIVE TEST

PAPER III - CIVIL LAW- II

Maximum Marks: 200 Test Duration: 3 Hrs.

Questions: -

1. In 2017, kishan lal- plaintiff filed a suit for possession against Mohanlal- Defendant. The summons were duly served

Accordingly, the defendant was proceeded ex parte.

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upon the defendant. Despite service, the defendant did not appear in the court nor he contested the suit.

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The civil court vide its judgment dated 26-07-2018 decreed the suit ex parte in favour of the plaintiff.

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Therefore, plaintiff filed an application for execution of the decree in the year 2021 and notice of the same was

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issued to the defendant. It transpired that the defendant has already died in the year 2019. Accordingly, plaintiff filed
an application under order XXII, rule 4, CPC for bringing the legal heirs of defendant on record.
There were two legal heirs of the defendant who instead of filing reply to application under Order XXII, rule 4, CPC

deceased defendant.

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of the plaintiff filed an application under Order IX, rule 13, CPC for setting aside the ex parte decree against the

The plaintiff in its reply took an objection that since the defendant has been duly served in her lifetime with the

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summons and had not chosen not to appear or contest the suit, as such the application Order IX, rule 13, CPC filed
by the legal heirs of the respondent is barred by limitation to be dismissed.

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In view of the above facts, decide the application under Order IX, rule 13, CPC with the detailed reason. [20 Marks]

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Answer 1:- The two legal heirs of the defendant have come forward with an application under IX rule 13 CPC for

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setting aside of the ex parte decree passed against the defendant, which the Decree-holder intends to execute
against them. They have come forward on service of notice of application filed by the Decree-holder plaintiff filed

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under Order XXII, rule 4, CPC to bringing them on record, they being legal heirs of defendant.
They have not filed any reply to application under Order XXII, rule 4. CPC. It is significant to note that rule 4 of
Order XXII CPC does not apply to the execution proceedings.
Even otherwise, this is not a case where defendant died before passing of the decree. He died after passing of the
decree. Therefore, again, rule 4 of Order XXII does not come into application in this case. The application filed by
the Decree holder can6Rbe said to have been filed to execute the decree against legal representatives under Order
6N5T 3Q2L
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XXI rule 22 CPC. the fact remains that no reply to this application has been filed by the legal representatives.
As regards the application under Order IX rule 13 CPC, plaintiff Decree holder has raised an objection to its
maintainability on the ground that the defendant had chosen not to appear or contest the suit, despite due service of
summons, and as such the application Order IX, rule 13, CPC filed by the legal heirs of the respondent is barred by
limitation and is liable to be dismissed. As to what the prescribed period
tr-5C6G 6F5C6Bof
3Klimitation
2H for an application under Order
IX, rule 13 CPC, we have to refer to Article 123 of Limitation Act. This article provides a period of 30 days for filing of
3Q2L
5T6Rtime
such an application.
tr-5Q6S6NThe for filing of application is to run from the date of the decree or where the summons or
notice was not duly served, when the applicant had knowledge of the decree. Judgment and ex parte decree is
dated 26-7-2018. Execution application came to be filed in 2021. When notice of this application was issued to the
defendant-judgment debtor it transpired that the defendant had left this world in 2019.
It is not in dispute that application has been filed beyond 30 days of the passing of the decree. There is nothing in
the application to suggest that they were not aware of the passing of the ex parte decree. Nowhere it has been
alleged by the applicants that that they have come to know about the decree only on service of notice of the
application under Order XXII rule 4 CPC. Furthermore, no application has been filed to seek condonation of delay in
filing of the application.
In the given facts and circumstances, the application under Order IX rule 13 CPC deserves to be dismissed being
barred by limitation.

2. Murli (Plaintiff) in possession of House No. P-53, Seelampur, Delhi (suit property) has filed a civil suit on 05. 01.
2016 against Ram seeking declaration that he (Plaintiff) is the owner of the Suit property and for injunction against
any interference in his possession, use or enjoyment thereof. The suit is contested by Ram (defendant) on the basis
of registered sale deed executed by the plaintiff on 31. 12. 2010 transferring the suit property for consideration of
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 Rs. Ten laces in his favour. In the pleadings, the following facts are admitted:
1. The Plaintiff had purchased the suit property for consideration of Rupees Eight Lacs from its erstwhile owner in
the year 2009.
2. On 31.12.2010, the plaintiff, in possession of the suit property, executed the sale deed relied upon by the
defendant.
3. On 31.12.2010, simultaneous to the sale deed, the plaintiff also executed a rent-note, indicating the lease
money to be Rupees Ten Thousand per month, in respect of suit property in favour of the defendant.
4. The plaintiff issued cheque for amounts of Rupees Ten Thousand each on 01.02.2011 and 01.03.2011, both of
which when presented by the defendant returned dishonored for want of sufficient funds.
5. The defendant instituted a suit under Order 37 of Code of Civil procedure, 1908 (CPC) on
01.06.2011 against the plaintiff pleading that he is the owner and landlord, seeking recovery of rental on the basis of
two cheques. The said suit (former suit) was contested by the plaintiff, inter alia, on the pleadings that the sale deed
and the rent note were sham documents and that the true & correct facts were that he being in urgent need of
money for renovation of the newly acquired house had raised a loan of Rupees Ten Lacs from the defendant and
that the said documents were executed only as a security.

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The civil court decreed the suit, inter alia, holding that the defendant is the owner and landlord of the property qua
the plaintiff.

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.
The defendant in the suit for declaration & injunction moves an application under Order 7 Rule 11 CPC raising the

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following issues:
(a) The suit is barred by principle for res judicata in view of the decision in former suit;
(b) The plaintiff cannot lead oral evidence contrary to the written contracts in the nature of the sale deed and rent

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note, the execution whereof is admitted, in view of the bar contained in Section 92 of the Indian Evidence Act.

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The plaintiff urges that the principle of res judicata & bar of Section 92 Indian Evidence Act, 1872 do not apply in the
present case. Decide. [30 Marks]

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Answer 2:- In the present case the suit already decided was between the same parties. Whereas the suit decided
was for recovery under Order 37 CPC, the pending suit is in declaration and injunction. In the suit disposed of,
Court has held the present defendant to be owner of the suit property. But, facts do not reveal if the plaintiff herein

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has or has not challenged the decreed passed in the suit under Order 37 CPC. In case, the decree has been
challenged, it cannot be said to be a case of final adjudication of the matter in dispute i.e. on the point of ownership
of the immovable property. In case, plaintiff herein has opted not to challenge the findings or accepted the decree in

the plaint
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the suit under Order 37 CPC, those findings can safely be said to have attained finality. Even otherwise, the
objection raised for rejection of plaint on the ground of res judicata is not available to the defendant herein under
Order 7 Rule 11 CPC. The first ground available under Order 7 Rule 11 CPC is where a plant does not disclose any
cause of action. Another ground available under order 7 rule 11 clause (d) is where the suit appears from the
statement in tr- to3Q
6N5T6R be2Lbarred by the law.
From the averments put forth in the plaint, it cannot be said that the plaint does not disclose any cause of action. As
regards clause (d) available under Order 7 Rule 11 CPC, the ground of res judicata is also not available to the
defendant for rejection of plaint because this plea needs to be determined by leading evidence.
The plaintiff herein contested the suit under Order 37 CPC on the grounds 2H that sale deed and the rent note were
6G6F5C 6B3K
sham documents and that the true & correct facts were that he being
tr-5C in urgent need of money for renovation of the
newly acquired house had3Qraised
2L a loan of Rupees Ten Las from the defendant and that the said documents were
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executed only as security. This plea of the present plaintiff has been rejected by the court in be suit under Order 37
CPC. It is significant to note that the second objection raised by the defendant herein in the application under Order
7 Rule 11 CPC is that the plaintiff herein cannot lead oral evidence as against the documentary evidence, in view of
provisions of Section 92 of Evidence Act. Such an objection can be issue only while evidence is being led or is
sought to be led to prove any such fact of document. Such an objection is not one of the grounds available for
rejection of plaint under order 7 Rule 11 CPC.

3. Vivek sues Arjun for partition and possession of the suit property which was owned by their father Pramod. Arjun
disputes that Vivek was a son of Pramod since Vivek was born five months after the dissolution of marriage of
Pramod and his wife, who was the mother of both the parties. State/Decide:
[10 Marks]
1. What is the law regarding presumption of legitimacy?
2. On what grounds, the legitimacy of Vivek can be challenged?
3. Will you allow an application filed by Arjun for DNA test to prove that Vivek is not the real brother of Arjun?
4. Distinguish between 'may presume', 'shall presume' and 'conclusive proof'.

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 Answer 3:- In the present case Section 112 of Evidence Act deals with presumption of legitimacy of a child as that
the fact that any person was born during the continuance of a valid marriage between his mother and any man, or
within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the
legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at
any time when he could have been begotten.
In the case of Chilkuri Venkateshwarlu v. Venkata narayana, (1954) SCR 424, held that the intent of the legislature
was that legitimacy of newly born child does not become matter of doubt or uncertainty. The presumption would be
there in case of child conceived before marriage as also to the child after the dissolution of marriage, where mother
remained unmarried during the relevant period.
In case Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449 was held that On the point of standard of proof and rebuttal
of presumption, Hon'ble Apex Court has observed that standard of proof in suchlike cases must be of a degree in
between the two as to ensure that there was no possibility of the child being conceived through the plaintiff's
husband. Such presumption can be displaced by a strong preponderance of evidence and not by a mere balance of
probabilities.

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As regards DNA test in suchlike cases for the purpose of collecting of evidence, Hon'ble High Court of Delhi has

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held that no party to a legal proceeding can be subjected to any such test against his or her will, merely at the

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asking of the other party; that DNA test is not to be directed in routine held in Kanchan Bedi v. Gurpreet Singh, AIR

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2003 Delhi 446. Also in case Teeku Dutta v. State, AIR 2004 SC 205, wherein it has been observed that the

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conclusive presumption under section 112 cannot be undone through the process of DNA test. In such cases,
non-access is required to be proved.
Applying the law to the facts of the present case, the application filed for a DNA test deserves to be dismissed.
Distinction between "may presume', 'shall presume' and 'conclusive proof
These expressions have been defined under Section 4 of Indian Evidence Act.

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So far as "may presume" is concerned, section 4 stipulates that whenever it is provided by this Act that Court may

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presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

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Plaintiff or defendant cannot compel the Court to and that the fact stands proved. Court has the discretion to call
upon the concerned party to prove the fact.

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So far as "shall presume" is concerned, Section 4 provides that whenever it is directed by this Act that the Court

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shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. Here, the Court has no
discretion to call upon the concerned party to prove the fact. Rather, the Court shall regard such fact as proved,
unless and until the same is disproved. As regards "conclusive proof", section 4 provides that where one fact is

case
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declared by this Act to be conclusive proof of another, the Court shall, proof of the one fact, regard the other as
proved, and shall not allow Evidence to be given for the purpose of disproving it. In the above first expression, the
fact may be regarded as proved, less and until the same is disproved. In the second expression, the Court shall
regard such a fact as proved, unless and until the same is disproved.
But in the present 5T6Rpresumption,
3Q2L court cannot allow any evidence being led for the purpose of disproving said
fact, which is declared under the Act to be conclusive proof of another.

4. Plaintiff/A was inducted as a tenant in respect of half portion of suit property on a monthly rent of Rs. 300/- w.e.f.
22.12.70 by the defendant/B. On 24.12.70 the defendant/B executed an 2H Agreement to sell the suit property to
6G6F5C6B 3K
plaintiff/A for a sum of Rs. 3,75,000/-, out of which a sum of Rs. 50,000/-
tr-5C was paid by A to B as part payment on the
same day. It was6S6N stipulated
5T6R3Q2L in Agreement to Sell that defendant/B will obtain Tax Clearance Certificate from
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Income-Tax Authorities for sale af suit property and shall deliver a copy of the certificate to the plaintiff within 12
months from the date of execution of agreement dated 24.12.70. It was further agreed that within 03 months
thereafter the plaintiff/A shall pay the balance sale consideration on receipt of which defendant/ B shall execute sale
deed in favour of the plaintiff/A.
On 05.11.77 the plaintiff/A filed a suit for specific performance of agreement dated 24.12.70 alleging that he had
written a letter dated 29.12.71 to the defendant/B enquiring about the necessary Tax Clearance Certificate. On
failure of defendant/B to reply to the said letter, plaintiff/ A had issued a legal notice dated 16.11.72 reiterating his
readiness to tender the balance consideration and asking the defendant/B to fulfill bis part of obligation and execute
the sale deed. The defendant/ B vide sotice dated 18.09.77 terminated the tenancy of plaintiff/A qua half portion of
the suit property. It was specific plea of the plaintiff/A that the suit for specific performance of agreement to sell
dated 24.12.70 could not be instituted earlier, as defendant/B was all along residing in London. Denying the claims
of plaintiff/A, the defendant/B contended that the suit was liable to be dismissed being barred by limitation.
The defendant/B admitted the execution of Agreement to Sell dated 24.12.70 but claimed that the plaintiff/A was not
entitled to any relief, as he had himself breached conditions of the Agreement. As regards plea of plaintiff/A that
defendant/B was not in India from Dec. 1970 till Sept. 1977, the defendant/B claimed that he was in India during
following periods:
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 1. From 19.12.70 to 30.12.70
2. From 18.08.71 to 13.09.71
3. From 31.10.72 to 12.11.72
4. From 04.09.77 to 03.10.77
Quoting relevant provisions of Limitation Act, give your findings with detailed reasons, as to whether the suit of
plaintiff/A is barred by limitation or not. [30 Marks]

Answer 4:- In the present case it is clear that the defendant was to obtain a Tax Clearance Certificate from Income
Tax Authorities for sale of suit property and also to deliver a copy of the certificate to the plaintiff within 12 months
from 24.12.1970. In this case, it is not the case of the defendant that he obtained or took any step to obtain a Tax
Clearance Certificate from I.T. Authorities, what to say of communication of its copy to the plaintiff. According to the
defendant, he was admittedly out of India for the aforesaid period. So, the plaintiff was justified in sending letter dt.
29.12.71 to the defendant enquiring from him about the Certificate and then issuing legal notice dt. 16.11.72. Cause
of action arose to the plaintiff when the defendant did not reply even to the legal notice. It is well settled that time

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when commences to run cannot be stopped. Here, limitation to file the suit commenced initially on 22.3.72 and then

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one serving of legal notice and failure of the defendant to do the needful or to reply the same. Plaintiffs could file suit

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for specific performance within 3 years from the date of refusal. In this way, suit could be instituted initially by

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21.3.75 i.e. on expiry of 3 years period from expiry of 15 months agreed period and then by 16.11.1975. From

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31.10.72 to 12.11.72 the defendant was in India but the plaintiff did not file suit during that period. Notably on
5.11.77 when he filed suit the defendant was still out of India.
In Satya Jain v. Anis Ahmed, 195 (2012) DLT 373 (SC), in the same facts, the period during which the defendant

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was beyond India stands excluded. It was observed in para 3 of the judgment that it was evident that suit had been
filed beyond the stipulated period of 3 years, from any of the 3 causes of actions based on 3 different dates. In view
of the legal position that cause of action having arisen and time having commenced to run, suit could be held to be

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barred by limitation. But in view of Section 15(5) of Limitation Act which provides for exclusion of the time during

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which the defendant has been absent from India and decision in Satya Jain's case in the facts as given in this

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problem suit having been filed on 5.11.77 is within limitation.

5.

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Amit as guardian/father of Rohan entered into an oral agreement for sale of his house/suit property on 28.02.21 for
a sum of Rs. 1,80,000/-. Sale deed was agreed to be executed and registered on the same day. Omkar purchased
the stamp papers, paid the entire sale consideration and was handed over possession of the suit property by Amit

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and Rohan on the same day. They also executed the sale deed in favor of Omkar, which was taken to the office of
Sub Registrar on the same day i.e. 28.02.21. The sale deed, however, could not be registered. It is the plea of
omkar that Sub Registrar informed them that there was an order of attachment against the suit property and that
Amit and Rohan had promised Omkar that they will get the attachment removed and get the sale deed registered at
the earliest. tr- failure
5Q6S 6N5T6Rof3QAmit
2L and Rohan to get the sale deed registered, Omkar issued a legal notice to Amit and
Rohan on 05.02.22, where after Amit and Rohan tried to dispossess Omkar from the suit property. Omkar filed a
suit seeking direction to Amit and Rohan to execute fresh sale deed and prayed for relief of permanent injunction
restraining Amit and Rohan from disturbing possession of Omkar. In defence, Amit and Rohan claimed that they
had taken a loan of Rs. 1,75,000/ from Omkar and had executed an agreement to sell (not sale deed) in favor of
5C6B3K2H
Omkar on her insistence. Omkar had fraudulently got a prepared sale
tr-5C6G6F deed and therefore Amit and Rohan had
refused to get it registered. In evidence, Omkar tendered the unregistered sale deed in support of her case, which
3Q2L
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was refused to be admitted in evidence by trial court on the ground that it was an unregistered document.
Omkar challenged the order invoking Sec. 49 of the Registration Act, 1908. Decide whether the sale deed could
have been admitted in evidence or not. [15 Marks]

Answer 5:- The question is as to whether the unregistered sale deed dated 28.02.21 could have been admitted in
evidence or not. The unregistered sale deed came to be tendered in evidence by Omkar-plaintiff during trial of the
suit filed by him against Amit and Rohan direction that they should execute a fresh sale deed in his favour and that
they should be restrained by way of permanent injunction from disturbing his possession. Suit has been filed by
Omkar on the basis of oral agreement to sell dated 28.2.2021 executed by Amit, as guardian/father of Rohan, in
favour of Omkar in respect of house/suit property. As noticed above, a suit has been filed seeking directions for
execution of sale deed and permanent injunction. This is a case where no agreement to sell was executed and only
sale deed was executed which could not registered because there was an order of attachment against the suit
property and Amit and Rohan promised that they would get the attachment removed and get the sale deed
registered. Execution of unregistered sale deed is evidence sought to be led by Omkar by way of conduct of Amit
and Rohan as regards the agreement. The execution of the sale deed did not confer any right in favour of Amit in
respect of immovable property. When provisions of section 17 were not attracted, the document i.e. unregistered
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 sale deed was admissible in evidence, trial Court could not refuse to admit the same in evidence on the ground that
the same is an unregistered document, because Omkar wanted to lead evidence as to the conduct of Amit and
Rohan towards agreement to sell arrived at between them.

6. Write short note of the following:- [15 Marks]

1. Relevancy of admission in civil cases.
2. Time for registration and delay.
3. Relevancy of character in civil disputes.

Answer 6:-
1. Relevancy of admission in civil cases: - Section 17 of Indian Evidence Act defines “admission” as a statement,
oral or documentary or contained in electronic form, which suggest any inference as to any fact in issue or relevant
fact, and which is made by any of the person, and under the circumstances mentioned in section 18 to 23.
Under section 18, 19 and 20 of the Act, statement, suggesting any inference as to any fact in issue or relevant fact,
made by the following persons are also admissions:

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a. By the party to the proceedings, to suits, suing or sued in representative character while holding that character-
representative character;

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b. By an agent, expressly or impliedly authorized by the party to the proceedings;

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c. By the person to whom a party to the suit has expressly referred for information in reference to the matter in
dispute;
d. By the parsons who have any proprietary or pecuniary interest in the subject matter of the proceeding, and who

of the interest of the persons making them;

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make statement in their character of person so interested, where statements are made during the continuance

e. By the persons from whom he parties to the suit have derived their interest in the subject- matter of the suit,

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where statement are made during continuance of the interest of the person making them;

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Relevancy of admission: Under section 21 of the Act, admissions are relevant and may be proved as asgainst:
a. The person who makes them;

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b. Representative in interest of the person who makes them.

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a) By the person making them; or
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Section 21 postulates that admissions cannot be proved:

b) On behalf of the person who makes them; or (c) By the representative in interest of the person who makes
them.

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However, admissions made by the aforesaid persons can be proved in the following circumstances:
a) Where admission is of such a nature that if the person making it were dead, it would be relevant as between
third
b) When the
persons under Section 32;
admission
tr-5Q consists
6S6N5T6R3Q
2L of a statement of the existence of any state of mind or body, relevant or in issue,
made at or about the time when such state of mind existed, and is accompanied by conduct rendering its
falsehood improbable;
c) If it is relevant otherwise than as an admission. Section 23 pertains to irrelevancy, instead of relevancy of
admission, in civil cases. It provides that in civil cases, no admission is relevant, if it is made either upon an
5C6B3K2H
expression condition that evidence of it is not to be given, or tr- under
5C6G6Fcircumstances from which the Court can infer
that the parties agreed together
3Q 2L that evidence of it should not be given.
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Explanation appended to the aforesaid provision provides that nothing in this section shall be taken to exempt any
barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give
evidence under Section 126 of the Act.
From the provision of Section 23 it becomes obvious that under this provision in civil cases admission would not be
relevant only in the given two situations:
a) Where there was an express condition that no evidence of admission was to be given;
b) Where the court can infer that the parties agreed that no evidence of admission should be given.

2. Time for registration and delay:- Section 34 of Registration Act provides as to enquiry to be conducted before
registration by registering officer. It provides that subject to the provisions contained in this Part and in sections 41,
43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the persons executing such
document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer
within the time allowed for presentation under sections 23, 24, 25 and 26. So the Registrar can refuse to register the
document not presented by the persons executing the same, or his representative, assign or agent duly authorized
and that too within the time allowed for presentation.
However, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in
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 cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not
exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under section
25, the document may be registered. The registering officer is required to:-
(a) Enquire whether or not such document was executed by the persons by whom it purports to have been
executed;
(b) Satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the
document; and (c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the
right of such person so to appear.
Section 23 of Registration Act provides as to within which period documents are to be presented for registration. It
provides that subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be
accepted for registration unless presented for that purpose to the proper officer within four months from the date of
its execution: However, a copy a of a decree or order may be presented within four months from the day on which
the decree or order was made, or, where it is
Appealable, within four months from the day on which it becomes final Section 23A provides as to Re-registration of

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certain documents. It provides that notwithstanding anything to the contrary contained in this Act. if in any case a

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document requiring registration has been accepted for registration by a Registrar or Sub-Registrar from a person

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not duly empowered to present the same, and has been registered, any person claiming under such document may,

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within four months from his first becoming aware that the registration of such document is invalid, present such

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document or cause the same to be presented, in accordance with the provisions of Part VI for re registration in the
office of the Registrar of the district in which the document was originally registered;
And upon the Registrar being satisfied that the document was so accepted for registration from a person not duly

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empowered to present the same, he shall proceed to the re-registration of the document as if it has not been
previously registered, and as if such presentation for re-registration was a presentation for registration made within
the time allowed therefor under Part IV, and all the provisions of this Act, as to registration of documents, shall apply

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to such re-registration; and such document, if duly re-registered in accordance with the provisions of this section,

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shall be deemed to have been duly registered for all purposes from the date of its original registration. Section 24 of

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the Act provides documents executed by several persons at different times. It provides that where there are several
persons executing a document at different times, such document may be presented for registration and

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re-registration within four months from the date of each execution.
Section 25 of the Act postulates as to registration of documents where delay in presentation is unavoidable. It
provides that if, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or

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order made, in India is not presented for registration till after the expiration of the time hereinbefore prescribed in
that behalf, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that, on
payment of a fine not exceeding ten times the amount of the proper registration-fee, such document shall be
accepted for registration.
Any application 6S6Nsuch
to whom he is subordinate.
direction
5T6R3Q 2L may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar

Section 26 of the Act provides as to documents executed out of India. It postulates that when a document purporting
to have been executed by all or any of the parties out of India is not presented for registration till after the expiration
of the time hereinbefore prescribed in that behalf, the registering officer, if satisfied
3K2H
(a) that the instrument was so executed, and tr-5C6G6F5C6B
(b) that it has been presented
3Q2L for registration within four months after its arrival in India, may, on payment of the
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proper registration-fee accept such document for registration. Section 27 of the Act provides that Wills may be
presented or deposited at any time in the manner provided under the Act.
3. Relevancy of character in civil disputes.
Character and reputation having two distinct meanings. But under Evidence Act, character includes both reputation
and disposition. Character means the inherent qualities of a person or the sum of his traits and not the reputation
which a man has gained in the estimation of others. The peculiar qualities impressed by nature or by habit of the
person, which distinguish him from others constitute one's character or reputation. One's reputation may be bad, but
his character may be really good. On the other hand, his character may be bad but reputation may be good. So in
general character means the general estimate the community generally has formed of a person. See decision in
Bhagwan Swarup and others v. State, AIR 1965 SC 682.
Section 52 of Evidence Act provides that in civil cases, the fact that the character of any person concerned is such
as to render probable or improbable any conduct imputed to him, is irrelevant, except in so far as such character
appears from facts otherwise relevant.
In civil matters, character may refer to the parties litigating or their witnesses. But Section 52 does not pertain to the
character of witnesses, there being specific provisions in this regard in the form of Section 138, 140, 145, 146, 148
and 154. As regards parties litigating, their character is not relevant in the decision of civil case.
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 Explanation appended to Section 55 of the Act provides that word "character" includes both reputation and
disposition, but except as provided in section 54, evidence may be given only of general reputation and general
disposition, and not of particular acts by which reputation or disposition were shown.
Section 55 of Evidence Act provides as to relevancy of character in civil cases. It provides that in civil cases, the fact
that the character of any person is such as to affect the amount of damages which he ought to receive, is relevant.
So, where in civil cases the question is as to the amount of damages to be paid to a person, it would be relevant to
lead evidence as to character of that person. For example, in a suit for damages, even if character is not directly in
issue, evidence pertaining to character would be relevant in mitigation of damages in cases of breach of promise or
defamation. It is only where general character is put in issue that evidence as to character is relevant.
For example, where one party impeaches the Will on the allegation of fraud by the other, the other party cannot be
allowed to lead evidence as to his good character, the reason being that character is not in issue in such cases.
Ex:- Where plaintiff was charged with libel that as a surveyor he was incompetent, he cannot be allowed to lead
evidence that on other occasions when he acted as surveyor he had shown competence. In an action for breach of
promise of marriage, it is a defence that on the date of promise the plaintiff was a woman of general immoral

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character. Evidence that the plaintiff, after the promise, became unchaste may release the defendant. If the

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evidence is of those who live in the locality where the reputation prevailed and people talk of their beliefs about the

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said person, it would be admissible. But where the evidence is of a man who does not know of the reputation

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himself and he only heard it from others, it would be hearsay evidence and as such inadmissible.

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7. Two brothers Deepak and Naman are residing in one house consisting of ground floor and both are having two
rooms each. There is a common courtyard in the house. However, both the brothers Deepak and Naman are having

resisted by the Naman.

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strained relations with each other. Deepak wants to construct a partition wall in the common courtyard which is

Naman had to go out for urgent work with his family. In his absence Deepak along with his wife constructed a wall in

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the courtyard dividing the house into two portions. On return, Naman demolished the common wall which was again

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reconstructed forcibly by Deepak. Naman again tried to demolish the wall. In the meanwhile, Deepak obtained an ex

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parte injunction from the court restraining Naman from demolishing the wall.
A few days later, Deepak goes out along with his family and in his absence, Naman and his major son demolished

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the wall in violation of the ex-parte injunction granted by the court. On return, Deepak filed an application under

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Order XXXIX, rule 2A, CPC against Naman and his major son.
Whether the major son of Naman is liable under Order XXXIX, rule 2A of the CPC? [10 Marks]

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Answer 7:- Order XXXIX, rule 2A of CPC deals with the consequence or breach of injunction. If anybody acts in
breach of the order intentionally, he has to be dissuaded by taking action under this provision of law.
Rule 2A provides that the court may order the property of the person guilty of such disobedience or breach to be
attached, and also order
6S6N such
5T6R3Q 2L person to be detained in civil prison for a term not exceeding 3 months, unless in the
meantime the court directs his release.
This shows that any person who indulges in disobedience or breach of the injunction order can be so dealt with the
under rule 2A. Therefore, when the respondents, Naman including the major son, indulged in disobedience or
breach of the injunction order in demolishing the wall, court may proceed against the son as well, irrespective of the
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fact that he was not a party to the suit or to the injunction application.
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8. Jatindra, a resident of Delhi, institutes a suit on 01.03.2020 at Mumbai against Prem, also a resident of Delhi, for
compensation for defamation with respect to a poster defaming Jatindra having been published by Prem at Delhi on
15th January, 2020.
The jurisdiction of the court at Mumbai is invoked pleading that a relative of Jatindra, who was a resident of Mumbai
on his visit to Delhi on 15th January 2020 came across the said poster and after returning to Mumbai had
telephonically inquired from Jatindra on 25th January 2020 about the contents of the same and further pleading that
the cause of action accrued to Jatindra at Mumbai.
Prem In his written statement objects to the territorial jurisdiction of the court at Mumbai and pleads that the
jurisdiction of Mumbai Court has been invoked malafide to harass him specially when both Jatindra and Prem were
residents of Delhi and the allegedly defamatory publication was also made at Delhi.
Jatindra does not file any replication.
One of the issues framed in the suit is on the aspect of territorial jurisdiction. The Mumbai Court though finds Prem
to have defamed Jatindra and Jatindra entitled to compensation therefore, however, dismissed the suit vide
judgment dated 01.11.2021 holding that the court at Mumbai did not have territorial jurisdiction to entertain the suit.
A thereafter on 7th January 2022 files a suit for the same relief in the court at Delhi.
Decide whether the suit at Delhi is within limitation. [10 Marks]
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 Answer 8:- In the present case the question pertains to maintainability of the second suit filed at Delhi, under the law
of limitation, after dismissal of the previous suit filed at Mumbai for the same relief.
Cause of action in both suits is the same. Defamatory material came to be published on 15.1.2020. The first suit
was instituted at Mumbai on 1.3.2020. Second one came to be filed on 7.1.2022. First suit came to be dismissed on
the ground that the court at Mumbai had no jurisdiction to entertain and try the suit.
Plaintiff could sue the defendant within a period of one year from 15.1.2020. From the point of limitation, the second
suit having been filed beyond the prescribed period of limitation of one year and the same is barred by law. The
plaintiff opposed the objection raised by the defendant till the end. He never requested the court at any earlier date
for return of the plaintiff for its presentation before the court of competent jurisdiction. So, this is not a case where
the plaintiff can be said to have been prosecuting the remedy by way of first suit, before other court in good faith.
As a result, the decision has to pronounce against the plaintiff.

9. X sues Y for specific performance of an agreement to sell by Y to X of immovable property. It is the case of X, that:
I. a written agreement to sell was executed;

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II. though the same recorded that it was prepared in duplicate with one copy to be retained by each party but only

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a photocopy of the agreement to sell was given to X and both originals were retained by Y;

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III. That X, at the time of agreement to sell had given earnest money in cash to Y and receipt whereof was

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acknowledged by Y in one of the clauses in the written agreement to sell; and
IV. That Y was refusing to perform his part of the agreement to sell.
Y denies that any agreement to sell was entered into with X or that any amount by way of earnest money was paid

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by X to Y in cash. Y also files an application under Order VII Rule 11 of the CPC for rejection of the plaint/or
summary dismissal of the suit on the ground that since, according to X, there was a written agreement to sell and no
written agreement to sell was produced and only a photocopy was produced, the suit was not maintainable in law.

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Decide specifically with reference to maintainability of the suit. [20 Marks]

Answer 9:- According to Rule 14 of Order 7 pertains to production of document on which plaintiff sues or relies. It
provides that where a plaintiff sues upon a document or relies upon document in his possession or power in support

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of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him
and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in

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whose possession or power it is. Sub-rule (2) of Rule 14 so provides. Plaintiff has complied with requirement of law
by specifically so pleading in the plaint.
Also while referring Order 7 rule 11 of CPC it cannot be said that non production of original agreement to sell shall
led to rejection of plaint. Even otherwise, in view of the averment of the plaintiff that both the original copies of the
agreement to sell was
6S6N 5T6Rretained
3Q2L by the defendant. In such a situation, even before filing of the suit, plaintiff could
serve a notice on the defendant calling upon him to supply the original agreement to sell. Facts do not reveal that
any such notice was served by the plaintiff on the defendant. During pendency of the suit, plaintiff can still resort to
the provisions pertaining to production of document by the opposite party. Rule 12 of Order 11 CPC provides that
any party may, without filing any affidavit, apply to the Court for an order 2H directing any other party to any suit to
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make discovery on oath of the documents which are or have been in6F
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in question therein. On the 3Qhearing
2L of such application, the Court may either refuse or adjourn the same, if satisfied
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that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally
or limited to certain classes of documents, as may, in its discretion, be thought fit:
Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary
either for disposing fairly of the suit or for saving costs.
Rule 14 of Order 11 empowers Court, at any time during the pendency of any suit, to order the production by any
party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in
such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such
manner as shall appear just. It is settled law that where a document is sued upon and its terms are not set out in the
plaint but referred to in the plaint, the said document gets incorporated by reference in the plaint. This position has
been reiterated in U.S. Sasidharan v. K. Karunakaran [(1989) 4 SCC 482] and Manohar Joshi v. Nitin Bhaurao Patil
[(1996) 1 SCC 169].
Here, it cannot be said that terms of the agreement to sell have not been set out in the plaint. Accordingly, said
document stands incorporated in the plaint by reference. As a result, there is no merit in the application filed by the
defendant for rejection of plaint or summary dismissal of the suit.

10. A institutes a suit for permanent injunction to restrain B from dispossessing him from an immovable property
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 pleading:
(i) That A is in possession of the said property with the permission of C who was the owner of the property;
(ii) That C has died and none has come forward claiming any right to the property;
(iii) That B is a stranger to the property and has no right, title or interest in the property and is not entitled to disturb
the possession of A;
B contest the suit pleading that C has left an unregistered WILL bequeathing the property to B. Issues are framed in
the suit with one of the issues being with respect to the validity of the WILL of C set up by B.
B in his evidence, besides examining himself examines only one other witness, D, who deposes that C had called D
to the house of C and informed D that C had signed his WILL and also got it signed from E as a witness but was
advised that a WILL has to have at least two attesting witnesses and wanted D to sign the WILL as a witness. D
further deposed that he had accordingly signed as a witness.
Decide whether the WILL has been proved in accordance with law. [10 Marks]

Answer 10:-.Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document

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which is required by law to be attested. It provides that the execution must be proved by at least one attesting

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witness, if an attesting witness is alive and subject to the process of the court and capable of giving evidence.

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In order to assess as to whether the will has been validly executed and is a genuine document, the propounder has

.
to show that the will was signed by the testator and that he had put his signatures to the testament of his own free

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will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the
dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and
in the presence of each other. Once these elements are established, the onus which rests on the propounder is
discharged. Held in Daulat Ram v. Sodha, (2005) 1 SCC 40.

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Here, in order to prove execution of the will, B has examined himself and D. It is to be seen if D is an attesting
witness to the will or not. According to D, on having been called by C, he reached there and C informed him that he

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(C) had signed his will and also got it signed from E as a witness. D has also deposed to have signed the will as a

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witness as C wanted him to sign the will, in view of the advice that at least 2 attesting witnesses are required to

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attest the execution of the will. D has nowhere deposed that C had read over to him the contents of the will or that
he had himself gone through the contents of the will. The requirement of the law that the testator should sign the will

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in the presence of two witnesses, who attest it in his presence and in the presence of each other. But D has
nowhere stated that the testator had signed the will in his presence. As per statement of D, the other witness 'E' had
already signed. It means, E did not sign the will in presence of 'D'.

11.

Later on, Z prime

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In view of the above discussion, the will cannot be said to have been proved in accordance with law.

X purchased the suit property from dot Y on the basis of registered general power-of-attorney and agreement to
sell, after paying entire sale consideration to Y.
wanted
5T6R3Qto
2L dispossess X from the suit property on the basis of false documents executed by Y in
favour of Z. A lodged an FIR against Z.
In the meanwhile Z on the basis of forged documents filed a suit for possession against X. X raises a preliminary
objection that the suit of Z is not maintainable, as Z had not filed any documents on record regarding ownership of
the suit property.
5C6B3K2H
Z in order to meet the objection of X files an application undertr-Order
5C6G6FVIII, rule 1A of CPC seeking permission to file
the documents alleged to have
3Q 2L been executed in his favour. The application was resisted by A on the ground that Z
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has simply stated in the application that the documents which are to be filed were not in his power and possession
in the entire pleading. Z has not explained in whose possession these documents were lying and how all of a
sudden these documents came into his possession.
Decide the application giving reasons. [20 Marks]

Answer 11:- In Ansal Properties & Infrastructure Ltd. v. Col. Y.L. Sud, CM (M) No. 807 of 2008, decided on
1-12-2009, Hon'ble High Court of Delhi opined that the provisions of Order VII Rule 14 CPC are not mandatory as
the consequence of non-production/non-filing of document at the time of presentation of plaint has been provided in
the Rules. The relevant paras thereof are extracted below:
"16. In Aktie Bolaget Volve v. R. Venkatachalam held with reference to the various provisions of the CPC and the
Indian Evidence Act that there is no requirement whatsoever for the parties to file original documents in the court
and the only requirement is for production i.e. giving inspection of the originals to the opposite party, if so required
and that too at the stage of admission/denial of documents.
17. Order 7 Rule 14, sub-rule (3) is as under: "(3) A document which ought to be produced in Court by the plaintiff
when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or
entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of
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 the suit." The aforesaid provision provides the consequences of non production/non-filing of documents. The only
consequence provided is that the plaintiff is from proving the documents save with the leave of the court."
Order 7 Rule 11 CPC provides certain circumstances under which a plaint can be rejected. Non-furnishing of
document or copy thereof along with the plaint as provided for under Order 7 Rule 14(1) CPC is not one of the
reasons for rejection of plaint. A plain reading of the provisions of Order 7 Rule 14 CPC shows that consequences
of non-production of document and/or the copy thereof, which has been relied upon in the suit, has not been
provided for. In the absence thereof, the provision cannot be said to be mandatory, rather, rigours thereof has been
diluted in Order 7 Rule 14(3) CPC, which provides that in case any document ought to be produced is not produced
when the plaint is presented, the same can be produced with the leave of the court subsequently. Order 13, rule 1
provides that parties or their pleader shall produce on or before the settlement of issues, all the documentary
evidence in original where the copies thereof have been filed along with plaint or written statement.
The objection that the documents are forged would be decided by the court after evidence is led by the parties at
the time of trial.
Where the documents were in possession of the plaintiff even on the date of filing of suit but were not filed at

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appropriate stage, cannot be admitted at later stage unless cogent reasons are furnished in case Hardyal Singh v.

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Kamalinder Kaur, 2002 AIHC 2171 (Del). The object of rule 1 of Order 13 is to prevent fraud by late production of
forged or suspicious documents and not to penalize parties for non-production in time.

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.
In view of the above discussion, the plaintiff can produce on record the documents which he now intends to file, but

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the only consequence as provided under the law is that the plaintiff shall be barred from proving the documents, at
the proper stage, save with the leave of the court.

12.

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The plaintiff on 1" February, 2020 institutes a suit for recovery of money for price of goods sold to the defendant. It is
the case of the plaintiff that the goods were sold vide invoice dated 3rd January, 2017; that the defendant had given
a cheque dated 27th January, 2017 for the invoice amount; that the said cheque was returned dishonoured on 3rd

Marks]

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February, 2017. The defendant takes a plea that the suit is barred by time. Decide the said plea.

Answer 12:- Case of the plaintiff is that the goods were sold vide invoice dated 3rd January, 2017. To pay the price,
[10

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the defendant issued cheque dated 27th January, 2017. Said cheque was presented for encashment, but received
back as dis-honoured on 3rd February, 2017. The plaintiff has instituted on 1" February, 2020 institutes a suit for
recovery of money for price of goods sold to the defendant. Defendant has contested the suit on the preliminary

bill
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objections that same is not maintainable being barred by limitation.
This suit is for recovery filed on the averment of dishonour of cheque, Article 40 of Limitation Act provides a period
of three years for institution of a suit by the payee against the drawer of a bill of exchange, which has been
dishonoured by non-acceptance. In such a case, cause of action commences from the date of the refusal to accept.
A cheque is tr-
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exchange
6R3Q2L and cause of action arises on a cheque being dishonoured as on a dishonoured bill
of exchange. Such a suit is governed by Article 40. Applying the provisions of Art.40 to the facts of present case, the
suit having been filed within three years from the date of receipt of the cheque as dishonoured, can safely be said to
be within the period of limitation. Therefore, there is no merit in the objection raised on behalf of the defendant.
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