Delhi Civil law II exam 2007


Q.  1  ‘A’ let out his residential house in Delhi to ‘B’ vide registered lease deed dated 15-3-1992.  This lease was for a period of three years commencing from 1-3-1992 and ending on 28-2-1995.  Monthly rent fixed was Rs. 20,000.  After the expiry of lease period, no new lease was executed.  It was orally agreed between the parties that there would be extension of tenancy by a further period of three years on enhancement of rent by 15%.  ‘B’ started paying the rent at a enhanced rate w.e.f. 1-3-1995, which ‘A’ accepted till November, 1995.  Thereafter, vide legal notice dated 4-12-1995 was served upon ‘B’ under section 106 of the Transfer of Property Act, 1882.  ‘A’ terminated the tenancy w.e.f. 31-1-1996 and called upon ‘B’ to handover possession in the District Court.  Decree for possession was passed by the trial Court vide judgment and decree dated 12-12-2002 holding that after the termination of tenancy by legal notice, the tenant was in unlawful possession.  After this decree, ‘A’ filed another suit claiming mesne profits on 19-1-2003 w.e.f. 20-1-2000 and also for future period, till the possession is handed over.  ‘B’ took the plea that suit was barred under Order II, rule 2 of the Code of Civil Procedure, 1908.
Whether this plea of ‘B’ is sustainable in law?
Q.  2  ‘G’, aged about 35 years, went for pilgrimage to the holy cave of Amarnath situated in the State of Jammu and Kashmir in August 1995 and as per his prefixed itinerary, he was to return back to Delhi on 20-8-1995.  However, he did not return to Delhi on 20-8-1995.  Since then, he was not seen nor heard by any of his relations or friends.  His family, consisting of his wife ‘K’ and two minor children, made frantic inquiries to know about his whereabouts.  Proclamation was published in the newspaper and award was also announced for giving his correct whereabouts.  Missing persons report was also lodged with the Police Station, Pitampura, and Delhi on 4-9-1995.  Extensive efforts to trace out ‘G’ were made through jammu and Kashmir Police.  However, all these efforts turned futile and the J&K police closed the inquiry in May/June 1997.
‘G’ had four LIC policies for a total sum of Rs. 1,25,000 and had made his wife ‘K’ for nominee of the said policies.  ‘K’ continued to pay the insurance premium even after ‘G’ went missing.  However, some time in 1997, she stopped paying the premium when she received the information that J&K police had closed the inquiry.  Thereafter, she wrote a letter to LIC and claimed the amount under the policies stating that ‘G’ should be presumed to have died on or about 17-8-1995.  However, the LIC refused to entertain the claim mentioning that she should produce a decree from a Court of Law to the effect that ‘G’ is presumed to have died.
Decide as to whether there lies any presumption that ‘G’, died between 17-8-1995 and 20-8-1995 or in any case before June, 1997 when the closure report was given by the J&K Police.  Also decide as to whether in view of section 108 of the Evidence Act, such a presumption can be raised only after a lapse of seven years and in the meantime, policies should have been kept alive by paying the premium regularly.
Q.  3  Explain the legislative policy behind sections 123 and 162 of the Indian Evidence Act, 1872?
Q.  4  What is the distinction between an illegal decree and a void decree/  Can a void decree be challenged in collateral proceedings?
Q.  5  ‘M’ , which is a foreign bank, filed suit for recovery against ‘N’ an Indian resident.  This suit was filed in a Court of England under summary procedure.  ‘N’ filed an application for leave stating the various grounds on which he wanted to contest the suit.  However, he did not appear in the Court at the time of hearing and sent a letter to the Court stating that he was not in a position to go to England and engage a lawyer.  Suit for recovery was decreed under summary procedure and without trial.  On the basis of that decree, the bank filed execution under Order XXI of the CPC.  ‘N’ filed objections to the said decree on the ground that such decree was not binding as it was obtained without recording evidence in a suit under summary procedure and such a judgment cannot be said to be “on the merits of the case”.  The bank took the plea that the English Court had passed the decree after detailed discussion and by a reasoned judgment wherein the case of the respondent, i.e. ‘N’ was also considered, but his version was not found tenable.
What would be the fate of objections filed by ‘N’?
Q.  6  What is the difference between res judicata and constructive res judicata?  Which provision of CPC contains the principle of constructive res judicata?
Q.  7  ‘B’ and ‘S’ were defendants in a suit filed on the original side of the High Court for recovery of possession of the suit property.  The suit was dismissed by the Single Judge and the plaintiff carried an appeal to a Division Bench.  In the appeal, both ‘B’ and ‘S’ were respondents.  The Division Bench allowed the appeal.  As respondents before the Division Bench, both ‘B’ and ‘S’ were aggrieved by the decree against them.  ‘B’, the present appellant, filed an SLP and thereafter ‘S’ also filed an SLP.  Both in the matter of filing the SLP and granting of leave, ‘B’s appeal was prior.  The appeal filed by ‘S’ was dismissed for default for non-removal of office objections.  It was contended by the respondent-plaintiffs before the Supreme Court that inasmuch as the appeal filed by ‘S’ was dismissed by the Supreme Court for non-prosectuion, the judgment of the Division Bench of the High Court would operate as res judicata.  It was urged that the judgment and decree had become final against ‘B’ and all other defendants in the original suit. It was further contended that even otherwise the appeal should be dimissed as it may result in conflicting decrees.  That is, if the present appeal were allowed, resulting in setting aside the decree or making any modification thereof, if would result in the anomalous situation of there being conflicting decrees between the same parties, arsing out of the same cause of action.
Whether on the plea of the respondent-plaintiffs those principles of res judicata will apply to bar the appeal as not tenable?
Q.  8  What are the principles laid down by the Supreme Court in M/s.  Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation, AIR 1977 SC 577, while dealing with the application for leave to defend in a suit filed by the plaintiff under Order XXXVII of the Code of Civil Procedure, 1908?
Q.  9  The plaintiff was given employment by the respondent in the year 1985.  On 4-2-1986 vide memo dated 1-2-1986, he was promoted as Vice President.  Vide letter dated 12-4-1991, his services were terminated by giving one month’s notice.  The plaintiff filed a suit for declaration that the termination was invalid and also claimed damages.  The suit was filed on 6-6-1994.  The respondent took the objection that the suit was barred by limitation inasmuch as services were terminated vide letter dated 12-4-1991 and three years period expired on 11-4-1994.
Whether the respondent is correct in computing the period of three years from the date of notice and the suit would be barred by limitation?
Q.  10  In 1975, a suit was filed for partition of movable and immovable properties.  Parties were near relations, who claimed succession through common ancestor.  During trial in 1993, the parties filed application under order XXIII, Rule 3 of the Code of Civil Procedure, 1908 seeking to pass decree in terms of family settlement Ex. C-1 and compromise Ex.C-2 and Ex.C-3.  By this compromise, they had mutually settled and adjusted their rights and claims in the suit properties, had mutually relinquished rights in favour of each other and these contained mutual covenants transferring some of the properties inter se.  Court accepted it and passed a compromise decree, on 25-8-1993.  In 1995, three of the defendants filed application for setting aside that compromise-decree as it affects several immovable properties; it required compulsory registration under section 17 of the Registration Act, 1908 and the decree not having been registered is void and unenforceable.  This is disputed by the other parties.
Deal with this objection and given your decision.
Q.  11  ‘A’ entered into an agreement with ‘B’ for carrying out certain work from 4-4-1973 till 4-4-1975.  Agreement contained a clause for arbitration in case of dispute.  On 3-4-1978, ‘A’ filed civil suit against ‘B’ for recovery of some dues etc.  On 4-4-1978, ‘B’ filed application under section 20 of the Arbitraiton Act.  ‘B’ moved an application for stay in civil suit filed by ‘A’ but the application for stay was dismissed and his appeal against dismissal was also dismissed on 1-8-1985.  On 13-3-1986, ‘B’ filed an application under Order VI, Rule 17 of the Code of Civil Procedure, 1908 for amendment of his pending application under section 20 of the Arbitration and Conciliation Act, 1996 for converting it into suit for recovery of amount from ‘A’.  Application for amendment is opposed on the ground that it proposes to change the nature and character fo the suit and that claim of ‘B’ was barred by limitation.  ‘B’ contends that his pending application under section 20 of the Arbitration and Conciliation Act, 1996 contains all the particulars which should contain in a regular suit, difference is only in regard to reliefs prayed for, no prejudice will be caused to the opposite party, claim is not timebarred and prayer can be granted even by resorting to inherent powers under section 151 of the Code of Civil Procedure, 1908.
Deal with the respective contentions of the parties and pass an order on that application under order VI, Rule 17 of the Code of Civil Procedure, 1908.
Q.  12  Examine whether the following documents require compulsory registration, giving reasons in support of your answers:
(a)  An ‘adoption deed’.
(b)  A ‘will’ relating to ten shops and two flats in Defence Colony, New Delhi.
(c)  An ‘agreement to sell’ a house in Friends Colony, New Delhi for Rs. 90 lacs.
Q.  13  Vide agreement to sell, ‘A’ agreed to sell her house to ‘B’ for Rs. 20 lacs and received a sum of Rs. 10,000 as earnest money.  ‘B’ filed suit against ‘A’ for specific performance on the ground that ‘A’ had avoided to perform her part of agreement.  In trial ‘A’ contended that receipt/agreement could not have been exhibited nor relied upon because it was not a registered document, as by this document parties created right, title and interest and passed on consideration regarding an immovable property, value of which was more than Rs. 100.
Determine the contention by giving your decision.
Q.  14  Mohan filed a suit for recovery of money against Sohan.  Summons in the said suit were served upon Sohan on 6-4-2004 for appearance in the Court on 8-7-2004.  Sohan did not file the written statement within 30 days and on 8-7-2004 he appeared before the Court and moved an application for extension of time in filing the written statement on the ground that along with the suit, documents filed by the plaintiff were not served upon him.  The plaintiff contested the application raising the contention that this was an afterthough plea as along with the process fee, plaint and documents were filed by the plaintiff for service of summons upon the respondent.  He also contended that the respondent did not raise non-receipt of the documents any time between 6-4-2004 and 8-7-2004 and, therefore, no further time be given to him and decree be passed under Order VIII, Rule 10 of the Code of Civil procedure, 1908.
What would be your decision on the application filed by Sohan for extension of time?