Delhi Judiciary Service Examination

 DJS Mains 2010

Civil Law-II

Time: 3 Hours Total Marks: 200

This question paper comprises of two parts i.e.Part-A and Part-B. Candidates should answer Part-A and Part-B questions in separate answer sheets. If any question of Part-A is attempted in Part-B answer sheet or vice versa, it would not be evaluated.

PART A

Even if you do not know the answer, you may attempt the questions as the test is not only of knowledge of law but of the candidate’s analytical skill also.

Q. 1. The plaintiff sued for specific performance of an agreement for sale of immovable property and for recovery of damages. After the framing of issues but before the commencement of evidence, the plaintiff filed an application under section 65 of the Indian Evidence Act stating that the original agreement to sell had been handed over to the counsel earlier engaged by the plaintiff, that the said counsel expired and a new counsel was engaged; that the new counsel upon inspection of the court record found that the original agreement to sell was not on record; that inquiries were made from the office/residence of the earlier advocate but the original agreement to sell was not found there also. The plaintiff thus seeks permission to prove the photocopy of said agreement to sell. The defendant files a reply to the said application denying each and every content thereof.
Whether secondary evidence is admissible? Also answer the stage at which such an application is to be decided?

Q. 2. The plaintiff instituted a suit for recovery of money. It is the case of the plaintiff that he had purchased certain land from the defendant; the said land was acquired by the Government and accordingly he applied for compensation; however the defendant objected to the release of compensation to the plaintiff owing whereto the release of compensation to the plaintiff was delayed by several years. The defendant however subsequently withdrew his objections and where after the compensation was released to the plaintiff. the suit is filed for recovery of compensation for delay caused by the defendant in release of land acquisition compensation. The defendant contested the suit by denying sale of land to the plaintiff and further pleaded that the objections to release of compensation was withdrawn by him on the basis of a compromise in writing arrived at between the parties but the plaintiff mischievously obtained his signatures on an unconditional application for withdrawal of objection also. The defendant however did not file the compromise in writing along with the written statement. However, during the cross-examiantion of the plaintiff, the defendant put to him the said compromise in writing. The plaintiff denied his signature on the same. The defendant thereafter in his own evidence sought to prove the said compromise in writing. The plaintiff objected to the same contending that the defendant having not filed the document at the appropriate stage could not prove the same.
Decide the said objection of the plaintiff.

Q. 3. The plaintiff sued for recovery of money as an indigbent person. The plaint was accompanied with an application under Order 33, rule 1 of the CPC. An inquiry into the indigency of the plaintiff was ordered. The said inquiry remained pending and no progress was made therein. The plaintiff thereafter withdrew the application under Order 33, rule 1 of the CPC, wanting to proceed with the suit as a non-indigenous person. The defendant contended that the claim in suit, though within time when permission to sue as an indigent person was sought, was barred by time when the application under Order 33, rule 1 was withdrawn.
Decide the said objection.

Q. 4. The plaintiff institutes the suit for recovery of Rs. 3 lacs by way of damages for breach of contract against the defendant. It is the case of the plaintiff that the defendant had vide a lease deed dated 1st January, 2008 prepared on a stamp paper of Rs. 50 let out his property in Delhi to the plaintiff at a rent of Rs. 5000 and for a period of ten years; that the defendant however without any reason and in breach of the said lease terminated the said lease on 1st January, 2010 only and also instituted a suit for ejectment of the plaintiff. the plaintiff thus claimed damages of Rs. 3 lacs for breach of contract. The defendant files an application for rejection of the plaint on the ground that the plaint does not disclose a cause of action.
Decide the said application.

Q. 5. The plaintiff on 1st February, 2010 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, 2007; that the defendant had given a cheque dated 27th January, 2007 for the invoice amount; that the said cheque was returned dishonored on 3rd February, 2007. The defendant takes a plea that the suit is barred by time. Decide the said plea.

Q. 6. A applies for execution of a decree for possession against B. During the pendency of the said execution, B dies on 10th March, 2008. A applies on 10th September, 2008 for substitution of legal representatives of B in the execution.

Q. 7. The petitioner in a probate case examined an attesting witness to the Will who was cross examined by the objector. The evidence of the objector has begun. The objector wants to examine, as his own witness, the attesting witness to the Will whom he had cross examined earlier. It is his case that the said attesting witness had on an earlier occasion deposed under pressure from the petitioner and now wants to give the correct statement. Whether the objector can be permitted to examine as his own witness, the witness whom he had cross examined earlier.

PART B

Q. 1. The plaintiff instituted a suit pleading that one A was the producer of certain films, negatives whereof had been kept by him in the custody of defendant No. 3 Laboratory for preservation; A died leaving the defendant No’s. 1 and 2 as his only legal heirs; that upon the demise of A, defendants Nos. 1 to 2 had become the owners of the films, negatives whereof were kept in the custody of the defendant No. 3; that the defendants No. 1 and 2 had sold their rights in the said films/negatives in favour of the plaintiff. the plaintiff thus sued for mandatory injunction for direction to defendant No. 3 to deliver the negatives of the films to the plaintiff. The defendants No. 1 and 2 did not contest the suit. The defendant No. 3 files a written statement pleading that A had kept the negatives with it for safe custody on payment of charges; that a sum of Rs. 6 lacs was due towards the said charges. One of the issues framed in the suit was as to whether the defendant No. 3 was entitled to the sum of Rs. 6 lacs towards charges for safe custody of the negatives. The defendant No. 3 did not lead any evidence in the suit. Resultantly, the issue as to its entitlement to Rs. 6 lacs was decided against it. The decree for mandatory injunction was passed directing the defendant No. 3 to hand over the negatives to the plaintiff subject to payment of appropriate charges. The plaintiff filed an application for execution. The defendant No. 3 again said that besides the sum of Rs. 6 lacs earlier stated to be due, further amounts had accrued towards charges for safe custody of the negatives. How would you proceed with the execution?

Q. 2. A died leaving his widow and a son as his only legal heirs. A was thw owner of a house the ground floor whereof was commercial and occupied by various tenants and one portion of the ground floor was in use of the son for his business. The widow and the son were residing on the upper floor. The widow filed a suit against her son claiming that upon the demise of A, under his Will she had become the absolute owner fo the house; that the son was merely a licensee in a portion of the ground floor and which license came to an end on the demise of A; that the son had however failed to vacate the said portion of the ground floor. The widow sought a decree for injunction restraining the son from selling transferring or parting with possession of the portion of the ground floor in his occupation. The son after some contest gave a statement stating that he will not sell, transfer or part with possession of the said portion of the ground floor and the suit was disposed off. On the demise of the widow, her brother filed a second suit against the son claiming that the widow under her Will bequeathed the house to him and claiming possession not only of the portion of the ground floor in which the son was had been running a shop but also of the upper floor.
The defendant contended that the suit was barred Order 2, rule 2 of the CPC. Decide the said objection.

Q. 3. The application of the plaintiff under Order 39, rules 1 and 2 of the CPC was dismissed by the Trial Court. The plaintiff preferred an appeal against the said order. However, after some arguments the appeal was dismissed as withdrawn. The plaintiff thereafter applied to the Trial Court for review of the order of dismissal of the application. The defendant took a preliminary objection that an appeal having been preferred and withdrawn, the plaintiff was not entitled to apply for review.
Decide the said preliminary objection to the maintainability of the review.

Q. 4. The plaintiff instituted a suit for recovery of money from the defendant. The defendant filed a written statement contesting the suit. It is, inter alias, the case the defendant that it had sent its proposal to the foreign parent company of the plaintiff and negotiations were held with and terms settled with the foreign parent company of the plaintiff; that the said foreign parent company of the plaintiff however forwarded the proposal to the plaintiff which accepted the same. The defendant thus averred that the terms and conditions of the agreement on the basis whereof monies were claimed by the plaintiff were different from as claimed by the plaintiff. The defendant after filing of the written statement filed a counter claim not only against the plaintiff but also against the foreign parent company of the plaintiff.
Discuss the maintainability of a counter-claim against a non-party to the suit.

Q. 5. The plaintiff instituted a suit for recovery of money under Order 37 of the CPC on the basis of a dishonored cheque. It is the case in the plaint that one A owed monies to the plaintiff and in payment of the said monies had issued the cheque aforesaid in favour of the plaintiff, however, the plaintiff did not present the said cheque on request of A; however A died unexpectedly and where after the plaintiff presented the cheque which was returned dishonored with the remark “Withdrawal stopped owing to death”. The plaintiff thus instituted the suit for recovery of the cheque amount against the legal representatives of A. Whether the suit is maintainable under Order 37.

Q. 6. The court makes efforts for amicable settlement in a suit. Amicable settlement is arrived at between the parties, the broad terms whereof are recorded by the court in its order. The matter is adjourned for filing of an application under Order 23, rule 3 of the CPC by the parties. However, the defendant does not join in the said application. The plaintiff applies for decreeing the suit in terms of the compromise recorded in the earlier order of the court. The defendant opposes.
Decide.

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