Notes on the Specific Relief Act, 1963

SPECIFIC RELIEF ACT, 1963

The Act is based on equity and justice and is complimentary to the other substantive law. As the Preamble to the Act suggests it ‘defines and amends the law relating to certain kinds of Specific Relief’. As the Short Title to the Act states ‘Specific Relief Act’, it is called specific relief, because the suit seeks a particular relief specifically and since the defendant is ordered to do that specific act, it is called Specific Relief. The Act also gives greater discretion to the Court to weigh and measure the facts and circumstances of each case and to grant the relief to do equity and justice.

          The Section 4 of the Act makes it quite clear that the Act is to enforce civil rights against specific individuals and the Act has no application in criminal trial.

The whole Act is very important for PTs and Mains and each of the provision can be asked in theoretical as well as practical application questions. The Topics to study can be clubbed as (1) ‘Of Possession – Section 5 & 6 (immovable) and Section 7 & 8 (movable); (2) specific performance – Chapter-II, Section 9 to 24; (3) Rectification (Section 26), Rescission (Section 27-30) & Cancellation (Section31-33); (4) Declaration (Section 34-35); (5) Injunction (Section 36-42)

1.     POSSESSION – SECTION 5-8 – IMMOVABLE (5-6) & MOVABLE (7-8)

For Section 5 & 6 SRA, Art.64 and 65 of the Schedule to the Limitation Act, 1963 are to be read together. Section 27 of the Limitation Act is also attracted.

Section 5 only refers the Plaintiff to consult CPC, 1908, the phrase is important to discussion is ‘entitle to the possession of the specific immovable property’. This limits the application of the section. Section 5 only provides for relief of possession of the property. The word ‘entitle’ means that the Plaintiff need not be having an absolute ownership, but anyone having any possessory title can sue under section 5.

Section 6 is however more peculiar, it uphold the rule of law. It provides that no one is above the law and relief if any is to be sought through legal process. Any person who is in possession of the property, cannot be removed without his consent, it even includes a trespasser who has come in possession of immovable property. To make it clear from an example – A from country side, comes in Delhi and starts living on a piece of land. The land was actually owned by B. Here, B even though is the owner, cannot throw A out of the property by money or muscle power. If B forcibly dispossess A, then A can approach the Court within 6 months to put him back in the possession. Also, this Section cannot be claimed against the Government that is, you cannot be on possession of a government property/ premises and claim section 6 SRA upon eviction. Also, there is no appeal or review from decree passed under this section, only revision is possible that too very rarely on the grounds strictly for revision.

Section 5 and 6 differs in many ways. Section 5 presupposes some possessory title, where Section 6 only requires a possession and illegal dispossession. In Section 5, the title can be claimed by any party and the limitation period is 12 years be it under Article 64 or 65 of the Schedule to the Limitation Act, 1963. Whereas, Section 6 suit can be filed within 6 months and neither of the party can claim any title.

The most common doubt which arises is what if an owner lives somewhere and a stranger encroaches and comes into possession of which property. Now the owner cannot evict the trespasser via money or muscle power. If the owner forcibly evicts the trespasser, then the trespasser has remedy under section 6 SRA. However, the actual owner in not remediless. The owner can file suit under Section 5 SRA anytime and even after Section 6 is decreed against the owner, he still can file suit under Section 5 [Section 6(4) talks about this]. But yes, being vigilant and not letting any trespasser is always better – ‘prevention is better than cure’.

Now Section 27 of the Limitation Act, 1963 provides that a trespasser siting in other’s property for a continuous period of 12 years – will get the title. This is not ipso facto – the trespasser has to prove that he was in possession for continuous 12 years without a break and the possession was open and adverse to the actual owner.

For Section 7 & 8 – provisions of Order XX Rule 10 and Order XXI Rule 31 CPC are attracted.

Section 7 is on the same lines as Section 5 and is self-explanatory.

Section 8 simply states that any person entitled to immediate possession of any movable property may recover the same in given four conditions from (a) to (d). And further Explanation states that the Court shall presume in favour of clause (b) and (c).

2.   SPECIFIC PERFORMANCE – CHAPTER II – SECTION 9 TO 24 AND SECTION 38(2)

Section 9 SRA links the Act with Contract Act, 1872 and says that all the defences available in Contract Act can be availed in a suit under Chapter II of the SRA.

To simplify things – it is better to break the series and study Section 10, 14, 16, (13&17) and 20 together – they more or less tells when and when not the specific performance can be granted. Then study 15(who can be plaintiff) and 19(who can be defendant). Section 11 (Trust) & 12 (Part-Performance) and Section 18 are case specific. And then as miscellaneous we have Section 21, 22, 23 and 24.

SECTION 10

If the Plaintiff wants specific performance of any contract relating to immovable property, then he has to prove either (a) or (b), but the Explanation (i) to the Section directs the Court to presume (word used is shall) that clause (b) exists. Hence the burden of proof is on the Defendant to prove that in their particular case of specific performance of contract relating to immovable property the compensation would be adequate relief.

If the Plaintiff wants specific performance of any contract relating to movable property, then he has to prove either (a) to (b), and Explanation (ii) directs the Court to presume that the plaintiff can be so relieved (by payment of compensation). Therefore, the burden on the Plaintiff to prove (a) and (b) is even more strict.

But by way of exception (a) and (b) in explanation (ii), the Court cannot presume that compensation will be adequate relief if the movable property “is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtained in the market”. The same exception is created if the property is held by the defendant in trust. This means that if plaintiff is seeking specific performance for movable property which falls under exception (a) and (b) of Explanation (ii) – there is no presumption to be made by the Court.

SECTION 14

Section 14 at times requires a number of reading and is itself self-explanatory. The  object and policy of the Act i.e. doing equity and justice is the key while making decision under SRA. So Section 14 is not exhaustive and mandatory, the Court can in each case decide depending on the facts and circumstances. Section 14(2) saves the Arbitration Act, it only bars filing a suit for specific performance of arbitration agreement/ clause. A similar remedy was available in Arbitration Act, 1940 and now Arbitration and Conciliation Act, 1996. Subsection (3) is case specific.

Section 16 relates to personal bar created on the Plaintiff and it is easy to break down the section in parts and identify each condition stated therein.

Section 16(c) deals with a situation when the Plaintiff fails to aver and prove that he has performed or has been ready and willing to perform his part of the contract. This performance or readiness or willingness is required as and when agreed in the contract. At times upon filing of the suit for specific performance involving payment of money, the plaintiff only needs to prove that he was ready and willing to make the payment, he is not required to actually deposit the sum upon filing the suit, but only has to show (may be showing his bank statement with enough cash, etc.) that he was ready and willing to perform his part. The Court at times may even direct the plaintiff to deposit the sum (not mandatory, but the Court may in circumstances of the case), and if the plaintiff fails to deposit the sum even when so specifically directed, that is proof that the plaintiff was not ready and willing to perform his part. This can be a ground to refusal by Court for the relief sought. The explanation to Section 16 relates to the above.

Section 20 manifests what is underlining the object and policy of the Act. Specific Reliefs are very case specific and depends on facts and circumstances of each case. The conditions in Section 20 are only directory and not exhaustive, they serve more like illustration as to when can the relief be granted or refused.

Section 13 and 17 are related to defect in title. There may be a situation when the plaintiff is not the owner or unable to prove his absolute title to the property (immovable or movable), but want to seek specific performance to enforce a sale or lease. Then in that case, section 17 bars the plaintiff. To illustrate, A claims to be owner of property P, and contracts to sell it to B. Later, B defaults and A i.e. vendor files a suit to enforce the contract. However, if A in the trial fails to prove that he has absolute title, the Court may refuse and dismiss his suit. Section 13 talks about the opposite situation. In the above example, suppose A defaults and B wants to file suit for specific performance, here the suit will be granted if any of the clause (a) to (d) is fulfilled i.e. subsequently A gets a perfect title capable of transfer.

Section 15 and 19 are a list and important for the preliminary examination.

Section 11 provides for two situations – firstly, a person agrees to be a trustee – this can be specifically enforced – wholly or in part; and secondly, a trustee contracts doing an act, which is in excess of his powers or in breach of the terms of the trust – this cannot be specifically enforced. However, Section 11 itself is subject to the other provisions, like specific performance seeking a person to perform his functions as a trustee can even fall under Section 14(1)(b) i.e. personal volition. Therefore, the discretion is with the Court to do equity and justice.

Section 12 is part performance. The general rule is subsection (1). But in specific situations provided in (2), (3) and (4) part performance may be granted.

Subsection (2) is self-explanatory.

Subsection (3) in very brief provides as – the plaintiff seeking part performance leaving considerable portion unperformed, then the plaintiff has to pay the whole consideration (or only for the part which he wants to be performed), but he has to relinquish performance of the remaining part and even the right to seek compensation of that unperformed part. In the above case, the specific performance of part may be granted. Again all depends on the facts and circumstances of the case and greater discretion lies with the Court.

Finally, Section 21 to 24 are self-explanatory.

3.   RECTIFICATION, RESCISSION AND CANCELLATION – SECTION 26-33

RECTIFICATION – SECTION 26

Circumstances to prove – there was fraud or mutual mistake in contract or instrument and the contract or instrument fails to record the real intention of the parties. Any party under (a) to (c) can get the document rectified, but – it will not apply on Article of Association of a Company [subsection 1] and cannot prejudice the rights of third party acquired thereafter [subsection 2].

Subsection (3) states that first prayer can be rectification and then specific performance. Subsection (4) at last provides that prayer for rectification needs to be specifically pleaded and for that Order VI Rule 17 of the CPC can be interpreted liberally by the Court (only directory – it has to be construed in light of equity and justice of each case).

RECISSION – SECTION 27 – 30

Section 27 Subsection (1) clause (a) and (b) provides two circumstances which needs to be proved by the Plaintiff before the Court can rescind the contract. Subsection (2) clause (a) to (d) on the other hand provides circumstances under which the Court may refuse rescission. Again the word ‘may’ suggests there is more discretion with the Court to decide in light of equity and justice on the facts and circumstances of each case.

Section 29 allows the plaintiff to seek specific performance and if not granted the alternative relief for specific performance can be pleaded.

Section 30 empowers the Court to do equity in light of restoring any benefit which has already been accrued to any party.

CANCELLATION – SECTION 31-33

Section 31 provides that the Plaintiff has to prove – that the written instrument is void or voidable and the instrument is left outstanding the Plaintiff may be exposed to serious injury. Subsection (2) only instructs if any registered instrument is cancelled, the same has to be informed to the Registrar.

Section 32 talks about part cancellation and Section 33 is on restoration and doing equity, it all depends on facts and circumstances of each case.

4.   DECLARATION – SECTION 34-35

Section 35 at the very onset states that the declaration made under Chapter VI serves a ‘judgment in personam’ i.e. that only the Plaintiff and Defendant are bound by the judgment which also includes persons claiming through them and trustees of the party. Further, in Section 34 the Court is given discretion – firstly the burden of proof has to be discharged by the Plaintiff i.e. it has to be satisfied that the plaintiff seeking declaration is entitled to such a title and then the Court has discretion to grant the relief make the declaration as suggested by the phrase ‘the Court may in its discretion make therein a declaration ……’

Section 34 has the following key words – Any person entitled to any legal character or to any right to any property …… may against any person – denying or interested to deny his title to such character or right …… the plaintiff need not in such suit ask for any further relief …… Proviso – no Court shall …… further relief ……

Entitled – means the title is already existing and not any title which will be accrued in future. This entitled is in respect of date of filing of the suit. The plaintiff must be entitled to the declaratory relief as on the date of filing the suit.

legal character or to any right to any property – it includes two types of rights  - personal rights and right as to property. Section 9 of the Code of Civil Procedure is to be attracted here, which states the Civil Court can try ‘any suit of civil nature’, therefore, any personal right which is of civil nature will falls under Section 34 SRA. For example, Right to Speech, Right to Privacy, etc. but Right to be a member of a social group without any official post is not a suit of civil nature and hence no declaration can be sought. Right to property will include both movable and immovable right.

Another noteworthy point here is- can declaration be positive as well as negative. Section 34 uses the phrase ‘any person entitled…’ which is a positive declaration as to entitlement. However, there may be a case wherein a negative declaration may be sought. For illustration, take the example of Rohit v. N.D. Tiwari. R sought a positive declaration that he is son of N, which was a positive declaration and in real N finally accepted his paternity. However, there may be case where some N seeks a negative declaration that R is not his son. The Section does not speak about the same, however, a negative declaration if coupled with a positive declaration will be permissible. Like in the above example, the negative declaration that R is not the son of N also includes the positive declaration that N has no son named R.

Denying or interested to deny – denying is in present continuous tense, which connotes that the defendant is denying the title or character to the plaintiff. And interest to deny includes any circumstances which may arise in future wherein there will be hostility in the interests of the plaintiff and the defendant. The burden to prove this issue is on the plaintiff to satisfy the Court that facts and circumstances of his case calls for the grant of this discretionary remedy. If the Court is not satisfied that the defendant is not denying or there is no immediate reason that the defendant will be interested in denying the title or character to the plaintiff, the Court can refuse to grant the remedy.

Further relief – the main provision says that the plaintiff is not duty bound to claim any other relief alongwith the declaratory suit. However, the proviso cautions the Court to not grant any relief unless further relief is also prayed. One practical illustration to this is suit of declaration and possession, there is a very nominal Court fee in Declaratory suit, however for seeking possession the Court fee can go as high as 1.1% of the suit value. So at times only declaration is claimed and possession is deliberately not sought. However, a declaration without possession will bear no fruit. Therefore, proviso takes these cases into picture and it also avoids multiplicity of proceedings because even though declaration and possession are based on two different cause of action, they can be claimed together as allowed in Order II Rule 3 of the CPC, 1908.

5.    INJUNCTION – SECTION 36-42

Temporary – Section 36, 37(1) SRA & Section 94(c), 151 and Order XXXIX of CPC, 1908

Section 37 states that temporary injunction are to continue until specific time or until further order. Order 43 Rule 1 makes the Order on temporary injunction as appealable Order. So whether it is granted or refused, it is appealable. Further, while drafting lawyers always write Section 151 CPC in the caption of the suit, to invoke inherent power of the Court. For example, in an injunction suit instituted by a Sports Channel against some named website for illegally telecasting (piracy) of a live cricket matches. However, apart from some named website, the match was also telecasted by many proxy websites. The plaintiff/ sports channel instituted injunction suit against some named defendant websites and sought an injunction in rem against any site involved in this piracy. The discretionary power of the Court was sought to issue injunction against the named defendant and against other unnamed. The Court reasoned that since broadcasting rights are acquired by investing huge sum of money and any piracy will cause irreparable losses, it granted the injunction against the defendants and finding no reason to not exercise its discretionary power under section 151 granted the relief as claimed (This question was asked in DJS July 2016 Mains)

The three basic requirements of granting a temporary injunction always have to be met, namely – (a) prima facie case in favour of the plaintiff; (b) balance of convenience lies in favour of the plaintiff; and (c) irreparable losses which cannot be compensated by money will be suffered by the plaintiff if injunction is not granted.

Perpetual/ Permanent – Section 36, 37(2), 38 SRA

Section 37 states that perpetual injunction can only be granted after hearing the case on merits and rightly so, because by granting perpetual injunction, the defendant is perpetually enjoined from asserting a right. The provision of Section 38 is self-explanatory and Sub-section (3) is not exhaustive rather is provided only to illustrate.

Mandatory Injunction – Section 39 is peculiar as it talks about an injunction which casts a positive duty upon the defendant to perform. Perpetual injunction is granted to perpetually enjoin the defendant from asserting his right, however, in mandatory injunction the Court is empowered to Order the Defendant to do some positive act in the interest of justice and in the facts and circumstances of the case.

TEMPORARY MANTORY INJUNCTION – Although not specifically provided in Section 39, the Hon’ble Supreme Court in Dorab Cowasji Warden v, Coomi Sorab Warden [1990] held that in exceptional circumstances it can be given provided the plaintiff discharges the initial burden required in temporary injunction and as a fourth requirement, the Court must be cautious because temporary mandatory injunction is like granting the final relief during the trial.

The simplest example on all the above can be A erecting a wall and when half erected, B (his neighbour) objects. B should file a suit for perpetual injunction so that A is enjoined from asserting his right to erect the wall, but that will be decided on merits at the end of the suit. During trial, the plaintiff should seek temporary injunction to stop A from completing the wall. The Court may grant both temporary during trial as well as perpetual on final merits

Here, the plaintiff should also seek mandatory injunction – so that the defendant should positively act by de-constructing the wall. The same can be claimed by way of Temporary Mandatory Injunction by the Plaintiff, in which case he will have to satisfy the Court that the half erected wall is a serious prejudice to his rights.

Section 40 is self-explanatory and Section is not exhaustive, but only inclusive.

CASES

NAME	YEAR	REMARKS
Shashi Properties & Industries Ltd. v. Sunil Akash Sinha	2004 SC	Plaintiff must prove that he had possession – both animus (physical/actual) and corpus (desire) to prove his settled possession
Krishna Prasad Singh v. Vikash Singh	2007 SC	In a suit u/S.6 the question (Fact in Issue) is settled possession and dispossession and if the title is decided, it will only be an incidental and collateral and hence res judicata will not apply.
Nair Service Society Ltd. v. K.C. Alexender	1968 SC Hidayatullah J.	Issue 1 – Suit under Section 5 and 6 can be clubbed together, but the decree will be different. Issue 2 – u/S. 6 no suit after six months. But suit for possession based on  previous settled possession can be filed uptil 12 years as per Article 64 of the Schedule to the Limitation Act, but the defendant can plead his ownership title in such suit. Issue 3 – Section 6 does not bar a separate suit under Section 5 at any time.
Ram Sunder Bhagat v. Ram Bharose Bhagat	1957 Pat. H.C.	Section 34 - 2nd marriage can be restrained by declaration
Radha Rani Bhargava v. Hanuman Prasad Bhargava	1966 SC	If life estate alienated, then any person who stands the chance of succeeding may sue for declaration
Verna Reddy Ram Raghav Reddy v. Kondur Seshu Reddy	1964 SC	S.34 is not exhaustive on declaratory suit, even when sec.34 SRA not fulfilled, such relief can be sought u/S.9 of the CPC r/w OVII R7 CPC, 1908.
Dorab Cowasji Warden v. Coomi Sorab Warden	1990 SC	For temporary mandatory injunction – 1. prima facie case 2. balance of convenience 3. irreparable losses 4. very rare and extremely compelling circumstances and virtually decreeing the suit in favour of the party
Laxman Tatyaba Kankate & Anr. V. Taramati Harishchandra Dhatrak	2010 SC	Section 20 - Court is to take care that process of the Court is not used as an instrument of oppression and giving advantage to plaintiff as opposed to defendant

Answer Writing - Practical Questions

CRIMINAL LAW, DJS Mains 1996

[This exercise is in response to people asking for answer writing. I wrote these answers way back in 2014. Since then I have perfected my answer writing further, have read DLT and recent cases to acquire better legal language. But this was the pattern with which I used to approach the answer writing. This is the actual mains paper of DJS Mains 1996, which I practiced by typing directly on my computer.

But this is not the best way possible, you can always write better language and acquire legal writing by reading more and more cases]

Ans. 1(a)

JUDGMENT

1.       The present case has been brought before this Court after taking cognizance upon a police report arising from FIR No. *** of 2014

2.      That the charges were framed against the accused A & C u/S. 304/34 and 201/34 IPC, 1860 and were explained to the accused. Plea of guilt was taken, to which the two accused claimed innocence and seeked trial.

3.      That the prosecution story in brief is that accused A had a grudge against his neighbor i.e. victim B because of his illicit relation with C, A’s wife. On 31.03.1993 the victim was last seen in his house and was never heard again. 4 days later on 4.4.1993, the dead body of the victim was exhumed from a four feet deep grave inside the accused house.

4.      That the prosecution relied and have proved the following facts –

(i) a strong motive of the accused A to kill the deceased the deceased B

(ii) the last seen theory of victim entering his house and then only his dead body was exhumed after 4 days from house of accused.

(iii) the disclosure statement of the accused, based upon which the weapon was discovered.

(iv) medical evidences to prove that the recovered wood cutter had the same blood traces as that of deceased.

5.       That after the prosecution evidences, examination of victim u/S.313 was conducted, all the incriminating evidences were brought to his notice, but the accused did not admit any of the fact.

6.      That the defence did not lead any evidence and claimed being falsely implicated in the case.

7.       That in the present case since there is no direct witness to the crime, the entire case is based on circumstantial evidences. The circumstantial evidences are covered by the principle of res gestae under the law of evidence. And u/S.6-8 all the surrounding circumstances occurring in and about the place of occurrence, the motive and conduct of victim as well as accused becomes relevant. The Supreme Court in catena of judgments have settled the rules regarding conviction while relying upon circumstantial evidences. the same were reiterated in Sushil Sharma v. Govt. of NCT of Delhi [2014 SC], the rules are –

(i) the facts shall be logically and legally relevant, and for that purpose must fall under Chapter II of the IEA, 1872;

(ii) each of the fact must be individually proved and together must fall a complete chain;

(iii) the chain of events must be continues and without any major lapse.

(iv) the chain of events must establish only one conclusion, i.e. of the guilt of the accused;

(v) the circumstantial evidence shall not only establish guilt of the accused, but must also negate any innocence of the accused; and

(vi) motive although not a relevant factor when establishing culpability, but in circumstantial evidence, if proved can help in filling the gap in the prosecution story.

8.      That in the present case, relevant facts which go on to incriminate the accused A are –

(i) that the accused and victim were neighbours, and did not have cordial relations as A suspected B of having illicit relation with C, A’s wife. The motive of A is thus present.

(ii) recovery of dead body – the dead body of the victim was exhumed from 4 feet below the ground of the living floor of the Accused house. There can be no plausible explanation that such an event of digging and burring can go unnoticed. The burden to proof is on accused to rebut the adverse inference drawn against such recovery.

(iii) recovery of weapon – the discovery statement of the accused are relevant as covered u/S. 27 IEA, 1872. the weapon were in a hiding, not known to common people, and the discovery on information by the accused, atleast can be used as corroboration and also such conduct of making the statement and recovery is relevant u/S.8 as conduct of the accused during investigation in reference to such investigation.

The circumstances in which the recovery of weapon along with the recovery of dead body from the house of Accused, further establishes that the murder and disappearance of evidence were carried within the house of accused, which is not a small event.

(iv) the medical report also established that the weapon discovered on the statement of accused match the blood group of the deceased and were a plausible weapon used in committing the offence.

9. The chain of events thus is firmly established, the only missing link is the presence of deceased in the house of accused and no witness is presented to prove that the victim went to the house of A or his dead body was taken to the accused’s house. However, the fact that the victim was last seen at night and was a close neighbor of accused, it is not always possible to produce a witness who would have been present at night to witness such an event.

10. That the chain of events is thus complete, and lead to only one inference that accused committed the crime. The weapon belonged to the accused, who after murdering the deceased brought the body to his house, or called the deceased to his home or might have found deceased at home, murdered him, and buried his body within the floor of living room of his house. No evidence or rebuttal has been adduced by the accused, no explanation has also been given as to the recovery of the weapon, the dad body or other incriminating facts.

11. As against accused C, there exists no concrete evidence. No direct or indirect evidence directly incriminate accused C. Prosecution has not been able to produce any evidence which directly establishes the role of accused C in the crime.

12.     Therefore, the prosecution has proved beyond reasonable doubt that accused A, after murdering B, dispossed off the body of the deceased. Accused A is convicted for the offence of murder and disappearance of evidences u/S. 302 and 201. Whereas, no direct involvement of C has been proved and hence accused C is acquitted of all charges.

ORDER

The accused A is convicted of the charge of murder punishable under 302IPC, 1860 and also disappearance of evidence punishable under 201IPC,1860. His bail bond his cancelled and he is directed to be taken into custody. As regarding accused C no offence is made out and hence she is acquitted of all charges.

Date: 13.09.2014                                                                                                Sd/-

D. & S.J.

SENTENCE

The prosecution and the defence were heard upon the quantum of sentence and considering all the facts presented it is found sufficient to sentence to be sentenced to life imprisonment for the offence of murder as the circumstances of rarest of rare case are not found; and also for rigorous imprisonment for 3 years for causing disappearance of evidences of a capital offence.

Date: 13.09.2014                                                                                                Sd/-

D. & S.J.

This judgment is pronounced in the open court in my presence and hearing and is hereby signed by me.

Date:13.09.2014                                                                                       Sd/-

D. & S.J.

Ans. 2(a)

The core issue to be decided here is whether cognizance in the present case is barred by provision of section 195 CrPC,1973.

Section 195 bars any Court from taking cognizance of any offence, until a complainant has been forwarded by the public official to whose office such offence has been alleged. Such offence are enumerated thereunder section 471IPC, 1860 is one such offence. Where any person uses any forged document as genuine in any proceeding before any Court, the Court therein shall forward a complaint to the Magistrate of that jurisdiction u/S.195 CrPC, for taking cognizance and trial of the offence alleged.

In the present case, the complainant himself filed a complaint against the accused for using forged document. The Magistrate upon examination of the complainant and the document ordered issue of process, therefore, it can be said that the cognizance was already taken. A presumption can be taken that the Magistrate adhered to the rules of the Code that cognizance was taken after being satisfied that prima facie case was made out for issue of process.

Therefore, the application of accused is of no avail, as cognizance has already been taken and section 195 cannot turn the clock back to pre-cognizance stage in the present case, which is already under inquiry stage. Moreover, cognizance once taken cannot be called back, as it would amount to review of the order, the power of which is not vested with the Court of Magistrate, as held in Rosy & Ors. v. State of Kerala [2000 SC]

Ans. 2 (b)

The core issue to be decided here is whether paternity test would be allowed.

The relevant provision attracted here is Section 112 of IEA, 1872. The provision lays down the ‘irrevertible presumption of law’ as to paternity of the child. The provision is for the purpose of preserving the right of an innocent child from being basterdised. The court in Gautam Kundu v. State of West Bengal, categorically held that sec.112 is a specific provision which if established escapes the clutches of onus of proof. It is irrevertible presumption of law, and the opposite party cannot adduce evidence to negate its operation. The condition to invoke such presumption are –

(i) a child is born during subsistence of valid marriage or within 280 days of marriage, when mother remaining unmarried.

(ii) that father fails to prove access to the wife at the time when the child must have been begotten.

If the above two are proved, the child is presumed to be a legitimate child of the husband and any other evidence cannot be produced to rebut such presumption.

In the present case, the husband has not been able to prove the access to lady when the child was begotten, the marriage is valid and the birth of the child within the marriage, raises a conclusive proof, as the law leans in favour of the child, from being basterdized or neglected.

The application of paternity test is hereby rejected.

Ans. 3(a)

Right to live does not include right to die. Section 299 Explanation 2, Section 300 Exception 5 306 and 309. Cases P. Ratinam v. UOI [1994 SC], Gian Kaur v. State of Punjab [1996 SC], Maruti S. Dubbal v. State of Maharastha and Aruna Ramchandar Shaunbaug v. UOI[2011 SC]. Justice R.M. Lodha constituted a 5 Judge Bench to seek opinion on Euthanasia in India, in August, notice to Centre and all the State Government to reply. [These are just bullet points, I didn’t write a proper answer because my dissertation topic in LLB was Euthanasia, I knew a lot on this subject, so just wrote some bullet points.]

Ans. 3(b) (i)”Falsus in uno falsus in omnibus” is a latin maxim, which states that “a person proved false in one case, is deemed false in all cases”. The above principle has not been recognized under the IEA, 1872. The competence of witness under the IEA, 1872 has been based upon his mental faculty, i.e. he shall be sound and capable of understanding the question put to him during investigation and also capable of giving rationale answers.

The IEA, 1872 bases more relevance to the judicial mind of the Court to seek evidence and reliability on evidences produced with proper care and precaution. The general rule of presumption, gives ample power to the Court to declare any witness or evidence to be doubtful. The scale of reliability is ‘preponderance of probability’ in civil cases and ‘proof beyond reasonable doubt’ in criminal case. Any evidence which passes the test above laid as the case may can be considered by the Court and to rebut the above facts is upon other party, as the ultimate purpose of trial is to meet the ends of justice.

(ii) Section 134 is a directory provision which out-weights the number of witness. Under IEA, 1872 nowhere has been provided that a fact must be proved by a given number of witness or evidences.

(iii) Rule of res-gestae- Sections 6-8, where direct evidence are not always available, circumstances relevant are important and reliable piece of evidence if properly established.

(iv) Autrefois convict and autrefois acquit – Section 40 as distinguished by Justice Munir. 300 CrPC and 20(3) of the Constitution of India.

(v) Retracted Confession – most of the times is retracted, as confession is made at investigation stage and by the time of trial, the accused having enough legal and procedural knowledge retracts from his earlier statement. More care and caution to be applied, even of retracted not be discarded as a whole, can be used as corroborative to fill the missing links, but is other corroborated by independent witness, can be sole basis of conviction. Supreme Court time and again have state the above, as also in Sakha Ram v. State of Maharastha [2004SC].

Ans. 4(i) Minor – below 7 completely exempted Sec82.,

83 states above 7 but below 12, liable if having mental faculty to weight the gravity or capable or understanding the nature of their act.

(ii) 8 year old, is govered by section 83 and if he has the mature understanding, he is not liable. In the present case, the minor stole the property, and sold it for rs 10. The minor  A being illiterate does not know the actual cost of the pen, yet he is having sufficient understading that steling and selling can fetch easy money. The guilty mind is thereby established. The udnerstading of the nature of the act, and still persuing towards the commission is an offence. B has received a stolen property, a costly pen of 300 being sold at rs. 10/- is enough strike the mental conscience of a man with reasonable prudence that the title ought to be ascertained. Section 414IPC,1860 raises a presumption where stolen property is received, that the burden is on the accused to disprove the element of knowledge. The accused B failed to prove so, and hence is liable for receiving stolen property.

(iii) minor is above 11 but below 12, being governed by section 83, he is liable for the offence of murder. The minor had the knowledge that a knife is a dangerous weapon, it can cut a person, and thereby death would ensue. The understanding of the nature of the act is thereby imputed upon the accused. He has enough understanding of the nature of his act.

[I was asked one question on Answer Writing which involved formats of Plaint, Written Statement and Judgment, usually asked in Himachal Pradesh Judicial Service Mains which is provided below]

Answer 1 – Plaint

IN THE COURT OF HON’BLE CIVIL JUDGE, JR. DIVISION

SHIMLA,

CIVIL SUIT NO. OF 2017

IN THE MATTER OF:

A                                                                                    … Plaintiff

Versus

B                                                                                    … Defendant

SUIT UNDER ORDER VII RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908

MOST RESPECTFULLY SHOWETH:

1.      That the Plaintiff is an ordinary and permanent resident of …(address)… and wishes to furnish the same for receiving of summons of this Court.

2.    That the defendant is permanent resident of …(address)… and it was the last known residence available with the plaintiff.

3.    That on 10.03.2015, the plaintiff advanced Rs.50,000/- (Rupees Fifty Thousand only) to the defendant against which a pronote was issued. It was agreed between the parties that the defendant will pay Rs.60,000/- (Rupees Sixty Thousand only) in discharge of the debt on or before 10.03.2016. The pronote is attached herewith and marked as ANNEXURE P1.

4.    That the defendant failed to discharge his debt on 10.03.2016 and despite repeated requests and demands of the plaintiff, the defendant made no payment.

5.     That the present Court has jurisdiction to try the present case, as the pronote was drawn in Shimla and it falls within the jurisdiction of this Hon’ble Court.

6.    That the cause of action arose on 10.03.2016 and on each subsequent days when the defendant failed to make the payment. The present suit is within limitation.

7.     That the subject matter in the present suit is claim of money to the tune of Rs.60,000/- (Rupees Sixty Thousand only) and for the purposes of requisite court fee, it has been accessed at Rs. 1250. The requisite court fee has been duly paid.

8.    That the plaintiff has not filed any other suit before any other Court claiming the same relief.

PRAYER

It is therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to -

(a) decree the present suit in favour of the plaintiff and against the defendant to pay Rs.60,000 (Rupees Sixty Thousand only) alongwith interest @ 6% from the date when the debt became due;

(b)                        order cost of litigation in favour of the plaintiff and against the defendant;

(c) any other order(s) as this court may deem fit and proper in the facts and circumstances of the present case.

Shimla                                                                                              Plaintiff

Date:……….                                                                             Through,

Counsel

VERIFIFCATION:

Verified on this the (date) day of (month), (year) that the contents of the plaint from para 1 to 4 are true to the best of knowledge and those of para 5 to 8 are true as per legal advice received by me and the last para is the prayer clause.

DEPONENT

{AFFIDAVIT}

ANSWER 2 – WRITTEN STATEMENT

IN THE COURT OF HON’BLE CIVIL JUDGE, JR. DIVISION

SHIMLA,

CIVIL SUIT NO. OF 2017

IN THE MATTER OF:

A                                                                                    … Plaintiff

Versus

B                                                                                    … Defendant

WRITTEN STATEMENT UNDER ORDER VIII RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908

MOST RESPECTFULLY SHOWETH:

PRELIMINARY SUBMISSION/ OBJECTION

1.      That at the very onset the defendant denies each and every averment made in the plaint unless specifically admitted by the defendant or admitted by necessary implication.

2.    That the plaintiff has not pleaded the true facts of the case and has not come to this Hon’ble Court with clean hands. And on this ground alone the suit is liable to be dismissed

3.    That on 01.04.2016, there was an agreement between the defendant and C (who is the son of A) wherein it was agreed that upon payment of Rs.50,000/- (Rupees Fifty Thousand only) the defendant will be discharged of his liability towards A. The payment was duly made by way of cheque to C by the defendant on 01.04.2016. Copy of the bank statement depicting honouring of the cheque is annexed herewith and marked as ANNEXURE D1.

PARA WISE REPLY ON MERITS

1.      That the contents of para 1 are matter of record and needs no reply.

2.    That the contents of para 2 are matter of record and needs no reply.

3.    That the contents of para 3 are the original agreement between the plaintiff and the defendant and is admitted by the defendant.

4.    That the contents of para 4 are false and vehemently denied. That the defendant in agreement with C paid the agreed amount in discharge of his liability and as on this date there is no amount payable by the defendant towards the plaintiff.

5.     That the contents of para 5 are matter of record and needs no reply.

6.    That the contents of para 6 are false and denied. That the defendant has discharged his liability and as on this date no money is due towards the plaintiff. There arises no cause of action against the defendant and in favour of the plaintiff.

7.     That the contents of para 7 are matter of record and needs no reply.

8.    That the contents of para 8 does no pertains to the defendant and needs no reply.

REPLY TO THE PRAYER CLAUSE

That no money is due from the defendant towards the plaintiff. There arises no cause of action and hence the prayer clause of the plaintiff holds no ground.

PRAYER

It is therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to –

(a) dismiss the present suit with cost against the plaintiff and in favour of the defendant;

(b)                        any other order(s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.

Shimla                                                                                    Defendant

Date:                                                                             Through,

Counsel

VERIFICATION:

Verified on this the (date) day of (Month) (year) that the contents of Preliminary Submission/ Objection from Para 1 to 3, contents of Parawise reply on merits from Para 1 to 4, and reply to prayer clause is true to the best of my knowledge and contents of Parawise reply on merits from Para 5 to 8 is true as per the legal advice received by me and the last para is the prayer clause.

DEPONENT

{AFFIDAVIT}

ANSWER 3 – JUDGEMENT

IN THE COURT OF HON’BLE CIVIL JUDGE, JR. DIVISION

SHIMLA,

CIVIL SUIT NO. OF 2017

IN THE MATTER OF:

A                                                                                    … Plaintiff

Versus

B                                                                                    … Defendant

CORAM: …(NAME OF THE JUDGE & DESIGNATION)…

DATE OF JUDGMENT : Month Date, year

COUNSEL FOR THE PLAINTIFF: MR. X, Counsel for the Plaintiff

Mr. Y, counsel of the Defendant

JUDGMENT

1.      That the present suit under Order VII Rule 1 of the Code of Civil Procedure, 1908 was filed by the plaintiff for recovery of principal sum of money alongwith interest to the tune of Rs.60,000/- (Rupees Sixty Thousand only).

2.    The case of the plaintiff in brief is that the sum of Rs. 50,000/- (Rupees Fifty Thousand only) was advanced and a pronote was issued by the defendant on 10.03.2015. As per the agreement between the parties, the defendant in discharge of his debt, was to pay Rs.60,000/-(Rupees Sixty Thousand only) on or before 10.03.2016 which was never made despite repeated demands raised by the plaintiff.

3.    That the case of the defendant was of total denial and it was pleaded that vide agreement dt. 01.04.2016 with C (who is A’s son), the debt of B towards A was discharged on payment of Rs.50,000/-(Rupees Fifty Thousand only) by B to C and the said payment was duly made by way of cheque.

4.    That from the pleading and arguments advanced and the following issue of law were framed –

Issue No.1 – ‘Whether B is liable to pay Rs.60,000/- (Rupees Sixty Thousand only) to A in discharge of his debt? OPP

Issue No.2 – ‘Whether B has discharged his liability by making payment to Mr. C (A’s son)? OPD

AS REGARD THE ISSUE NO.1

5.     That there is no dispute that a sum of Rs.50,000/- (Rupees Fifty Thousand only) was advanced by the plaintiff to the defendant and a pronote was issued on 10.03.2015 for a period of one year. It is has also been undisputed that the defendant was to pay Rs.60,000(Rupees Sixty Thousand only) on or before 10.03.2016 to the plaintiff in discharge of his liability.

6.    That from the above facts and pleading, the issue no.1 is decided in favour of the plaintiff and against the defendant.

AS REGARD THE ISSUE NO.2

7.     That it was pleaded by the defendant that Mr. C who is undisputedly the son of the plaintiff/ Mr.A entered into an agreement with the defendant on 01.04.2016. The defendant has argued that vide the said agreement his liability towards the plaintiff was agreed to be discharged if the defendant makes a payment of Rs.50,000/- (Rupees Fifty Thousand only). The copy of the bank statement depicting the honouring of the cheque is produced before this Court for perusal.

8.    That the plaintiff has not rebutted the factum of payment by the defendant towards Mr.C. However, the plaintiff has maintained that the said payment was in discharge of a separate debt which the defendant owed to Mr. C. and the agreement dated 01.04.2016 nowhere discharges the defendant of his liability towards the plaintiff.

9.    That the alleged agreement dt.01.04.2016 has neither been presented before this Hon’ble in evidence, nor has any witness stepped into the witness box to testify the alleged agreement as claimed by the defendant. The said payment made by the defendant towards Mr. C cannot be held to be in discharge of defendant’s liability towards the plaintiff. Moreover, the pronote is in the possession of the plaintiff and has not yet been discharged as per the terms and conditions stated therein.

10.                        That from the above discussion this issue is decided against the defendant and in favour of the plaintiff.

RELIEF

11.  That the prayer of the plaintiff is simplicitor recovery of money as stated in the pronote duly executed and from the pleading put forward and evidences led by the parties, this Court is inclined in decreeing the suit in favour of the plaintiff and against the defendant. The money was due on 10.03.2016, and more than 9 months have passed since then, therefore, the defendant is liable to payment interest @ 6% per annum on the above said amount starting from the date the debt was due i.e. 10.03.2016 till the date the payment is made. In the best interest of justice, the cost is also to be awarded in favour of the plaintiff to be paid by the defendant.

ORDER

12.That the issue no.1 and issue no. 2 are decided in favour of the plaintiff and against the defendant. The defendant is liable to pay Rs.60,000 (Rupees Sixty Thousand only) alongwith simple interest @ 6% per annum starting from 10.03.2016 till the final payment is realized. The defendant is also directed to pay Rs.3000/- (Rupees Three Thousand only) as cost of litigation incurred by the plaintiff in the present suit.

13.That the degree-sheet be drawn accordingly and the file be consigned to the record room.

Sd/-

(Judge)

Date:         

Pronounced in the open Court by me under my hand and seal.

Sd/-

(Judge)

Date

NOTE:

The focus is on the format rather on the merits. Some relevant points which should not be missed are – title (addressing to the right court – see for the pecuniary and territorial jurisdiction, name of parties, you even describe the parties,); don’t write any proper name of any person (one should not give any specific – use ABC…, XYZ…. And if names are given in the question use that); caption of the suit it has to be there for sure in capital letters and the provision of law must be mentioned,  Para 5-8 of the plaint are must and you cannot skip any of the 4 (jurisdiction, limitation, court fee and non-filing clause); residuary prayer clause i.e. the last prayer (c) always has to be written; then verification cannot be missed out – and you have to verify specifically like what are from your knowledge and what is vide the legal advice.

In written statement – preliminary submission/objection should always be there; there must be specific denial; reply to prayer clause and own prayer are two separate things and should be mentioned; verification is must.

In Judgment writing – first para is always about describing the nature of the suit, next pleadings in brief, always frame issue of law and do write OPP – Onuf of Proof on Plaintiff and OPD – Onus of Proof on Defendant; solve each and every issue; write ORDER in one line and do award cost in the suit {if you award cost there in no explanation required, but if you don’t award any cost then reasons have to be recorded for not awarding any cost}. Do write Sd/- (means signature) and put the date under that. And the last line ‘pronounced in the open court by me under my hand and seal’ needs to be written.

[I don’t say this is the perfect answer. You can perfect this even further. The Para 1 and 2 of the plaint can be put in one also. And to remember, all this is for 10+10+20 marks – so don’t get into too much technicality and discussion of law. This question is basically to know about your drafting skill and format of pleadings. So be precise and keep it short, you can skip writing Affidavit if there is less time, but writing affidavit can get you even more marks overall.]