Code of Civil Procedure, 1908 Test 5 — Questions & Solutions
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Q1Jurisdiction, res judicata & res sub judice (S9–14, 21)
A defendant, having lost on the merits at trial, raises for the first time in appeal an objection that the suit was filed in the wrong district (territorial jurisdiction). Under Section 21(1) CPC, the appellate court will entertain this objection only if:
aIt was taken at the earliest possible opportunity in the trial court and there has been a consequent failure of justice
bThe defendant raises it before final arguments in appeal
cThe decretal amount exceeds the trial court's pecuniary limit
dThe objection concerns subject-matter and not territory
Answer: A
Section 21(1) bars an appellate or revisional court from allowing an objection as to place of suing unless it was taken in the first-instance court at the earliest opportunity (and before settlement of issues) AND there has been a consequent failure of justice.
Q2Jurisdiction, res judicata & res sub judice (S9–14, 21)
Section 21 CPC, in its treatment of objections as to territorial jurisdiction, pecuniary jurisdiction, and competence with respect to subject-matter (after the 1976 amendment), reflects which principle?
aAll three categories of objection can be raised at any stage, even for the first time in appeal
bObjections to territorial and pecuniary jurisdiction are treated as technical (subject to the earliest-opportunity and failure-of-justice conditions), whereas a defect of jurisdiction over the subject-matter is fundamental and can be raised at any stage
cObjections to pecuniary jurisdiction are fundamental and can never be waived
dObjection to subject-matter jurisdiction is curable like territorial objections under Section 21
Answer: B
Section 21(1) and (2) make objections to place of suing and pecuniary limits technical and curable subject to the statutory conditions, but an inherent lack of jurisdiction over the subject-matter renders a decree a nullity that can be challenged at any stage.
Q3Jurisdiction, res judicata & res sub judice (S9–14, 21)
A taxing statute creates a special tribunal and a finality clause but provides no machinery for refund of tax collected under a provision later declared ultra vires. A taxpayer files a civil suit for refund. Applying the principles in Dhulabhai v. State of Madhya Pradesh on exclusion of civil court jurisdiction under Section 9 CPC, which statement is correct?
aThe civil suit is barred because the finality clause conclusively ousts the jurisdiction of civil courts in all tax matters
bThe civil suit is barred only if the taxpayer first exhausts the tribunal remedy, regardless of the absence of a refund mechanism
cThe civil suit is maintainable, since exclusion of civil court jurisdiction is not readily inferred and the statute provides no adequate alternative remedy for refund of an ultra vires levy
dThe civil suit is barred because once a special tribunal is constituted, Section 9 ceases to apply to the subject matter
Answer: C
Dhulabhai held that exclusion of civil court jurisdiction under Section 9 is not readily inferred; where the statutory remedy is inadequate or the levy is ultra vires and no refund machinery exists, the civil suit survives. The presumption favours existence, not exclusion, of civil jurisdiction.
Q4Jurisdiction, res judicata & res sub judice (S9–14, 21)
In a suit, an issue is heard and finally decided by a Court of limited pecuniary jurisdiction which is competent to decide that issue but is not competent to try a later suit of higher valuation in which the same issue is again raised. As to the operation of res judicata under Section 11 CPC, which is correct?
aThe decision cannot operate as res judicata because the deciding court was not competent to try the subsequent suit
bRes judicata applies only if both suits could have been tried by the same court
cThe decision operates as res judicata only if the subsequent suit is of equal or lower valuation
dThe decision operates as res judicata in the subsequent suit even though the limited court could not have tried that subsequent suit, by virtue of Explanation VIII
Answer: D
Explanation VIII to Section 11 CPC provides that an issue heard and finally decided by a competent court of limited jurisdiction operates as res judicata in a subsequent suit, notwithstanding that the limited court was not competent to try that subsequent suit.
Q5Jurisdiction, res judicata & res sub judice (S9–14, 21)
A petitioner's writ petition under Article 226 challenging a land order is dismissed by the High Court on the merits after a contested hearing. He then files a fresh petition under Article 32 of the Constitution before the Supreme Court on the same grounds. Following Daryao v. State of Uttar Pradesh, what is the correct position?
aThe Article 32 petition is barred by res judicata because the earlier writ petition was dismissed on the merits by a competent court
bRes judicata never applies to constitutional writ petitions, so the Article 32 petition is fully maintainable
cRes judicata applies only between Article 226 petitions, not where Article 32 is invoked
dThe petition is barred only if the earlier dismissal was in limine without a speaking order
Answer: A
Daryao v. State of U.P. (AIR 1961 SC 1457) held that where a writ petition under Article 226 is dismissed on the merits, that decision operates as res judicata and bars a subsequent Article 32 petition on the same matter. A dismissal on laches, alternative remedy, or in limine without a speaking order would not be a bar.
Q6Jurisdiction, res judicata & res sub judice (S9–14, 21)
A defendant who knew of a particular ground of defence in an earlier suit between the same parties failed to raise it, and the suit was decided against him. In a later suit on the same subject matter, he seeks to raise that ground. Which provision bars him, and on what test?
aSection 10 CPC, on the test of pendency of a previously instituted suit
bExplanation IV to Section 11 CPC, on the test that a matter which 'might and ought' to have been raised is deemed to have been directly and substantially in issue
cSection 21 CPC, on the test of failure of justice
dSection 13 CPC, on the test of conclusiveness of a prior adjudication
Answer: B
Explanation IV to Section 11 CPC embodies constructive res judicata: a matter that 'might and ought' to have been made a ground of attack or defence in the former suit is deemed to have been directly and substantially in issue, barring it later (State of U.P. v. Nawab Hussain).
Q7Jurisdiction, res judicata & res sub judice (S9–14, 21)
A suit was tried and decreed by a court that lacked territorial jurisdiction over the place of suing. The losing party, who never objected to the place of suing in the trial court, raises the territorial objection for the first time in appeal. Under Section 21 CPC, when can the appellate court entertain this objection?
aWhenever the court that passed the decree in fact lacked territorial jurisdiction, since a decree without jurisdiction is a nullity
bOnly if the objection relates to pecuniary, and not territorial, jurisdiction
cOnly if the objection was taken in the court of first instance at the earliest opportunity AND there has been a consequent failure of justice
dAt any stage, because objections to place of suing can never be waived
Answer: C
Section 21 CPC bars an appellate or revisional court from allowing an objection as to place of suing unless it was taken in the court of first instance at the earliest opportunity and there has been a consequent failure of justice; both conditions are conjunctive.
Q8Institution of suits, parties, frame of suit, pleadings (O1–O8)
Regarding non-joinder and misjoinder of parties under Order I Rule 9 CPC, which statement is correct?
aEvery misjoinder of parties results in dismissal of the suit
bNon-joinder of a proper party is fatal to the suit
cThe objection of non-joinder can be raised at any stage including in second appeal as of right
dNo suit shall be defeated by reason of misjoinder or non-joinder of parties, but this does not apply where there is non-joinder of a necessary party
Answer: D
Order I Rule 9 provides that no suit shall be defeated by misjoinder or non-joinder, but the proviso/explanation makes clear it does not save a suit where a necessary party (without whom no effective decree can be passed) has not been joined.
Q9Institution of suits, parties, frame of suit, pleadings (O1–O8)
The principle that a plaintiff must include the whole of his claim in respect of a cause of action, failing which he relinquishes the omitted portion, is contained in:
aOrder II Rule 2
bOrder I Rule 1
cOrder VI Rule 17
dOrder VII Rule 11
Answer: A
Order II Rule 2 CPC requires every suit to include the whole of the claim arising from a cause of action; a plaintiff who omits or relinquishes part of the claim cannot afterwards sue for the portion so omitted (subject to leave for separate suit on a separate relief).
Q10Institution of suits, parties, frame of suit, pleadings (O1–O8)
Under Order VI Rule 17 CPC (as amended in 2002), an application to amend pleadings after the trial has commenced:
aCan never be allowed once the trial has begun
bShall not be allowed unless the court concludes that in spite of due diligence the party could not have raised the matter before the commencement of trial
cIs allowed only if the opposite party consents
dIs governed solely by the discretion of the court with no statutory restriction
Answer: B
The proviso to Order VI Rule 17, inserted by the 2002 amendment, bars amendment after the commencement of trial unless the court is satisfied that despite due diligence the party could not have raised the matter earlier.
Q11Institution of suits, parties, frame of suit, pleadings (O1–O8)
Which of the following is NOT a ground on which a plaint shall be rejected under Order VII Rule 11 CPC?
aWhere the plaint does not disclose a cause of action
bWhere the relief claimed is undervalued and the valuation is not corrected within the time fixed by the court
cWhere the defendant has filed a written statement denying the plaint allegations
dWhere the suit appears from the statement in the plaint to be barred by any law
Answer: C
Order VII Rule 11 lists grounds for rejection of a plaint (no cause of action, undervaluation uncorrected, insufficient stamp uncorrected, suit barred by law, etc.); the filing of a written statement denying allegations is not a ground for rejecting the plaint.
Q12Institution of suits, parties, frame of suit, pleadings (O1–O8)
In a suit, the defendant fails to specifically deny a material allegation of fact made in the plaint and does not state that he does not admit it. The legal consequence under Order VIII Rule 5 CPC is that the allegation:
aMust be proved by the plaintiff by independent evidence in every case
bIs automatically struck off the record
cCan be denied later only by amending the written statement
dShall be taken to be admitted, except as against a person under disability, though the court may still require proof
Answer: D
Order VIII Rule 5 provides that every allegation of fact not specifically denied or stated to be not admitted shall be taken as admitted (except against persons under disability); the court nonetheless retains discretion to require proof otherwise than by such admission.
Q13Institution of suits, parties, frame of suit, pleadings (O1–O8)
A defendant wishes to claim, against the plaintiff, a right in respect of a cause of action accruing to him, by way of set-off or counter-claim. Which statement correctly reflects the position under Order VIII CPC?
aA counter-claim shall have the same effect as a cross-suit so that the court may pronounce a final judgment on it
bA counter-claim can be set up only for an ascertained sum of money
cSet-off and counter-claim are identical in scope and effect
dA counter-claim cannot exceed the pecuniary jurisdiction of the court even where the original suit is within jurisdiction
Answer: A
Order VIII Rule 6A(2) provides that a counter-claim has the same effect as a cross-suit, enabling the court to pronounce a final judgment both on the original claim and the counter-claim; unlike legal set-off (Rule 6) it is not confined to an ascertained sum of money.
Q14Institution of suits, parties, frame of suit, pleadings (O1–O8)
On the question of impleadment of parties under Order I Rule 10(2) CPC, which proposition is correct as settled by the Supreme Court (e.g., Mumbai International Airport v. Regency Convention Centre)?
aA necessary party is one whose presence is desirable but not essential for an effective decree
bA necessary party is one in whose absence no effective decree can be passed, while a proper party is one whose presence enables complete adjudication though a decree can be passed without him
cAny person interested in the litigation has a right to be impleaded irrespective of necessity
dOnly the plaintiff, and never the court suo motu, may add a party
Answer: B
Under Order I Rule 10(2) and as explained in Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre (2010) 7 SCC 417, a necessary party is one without whom no effective decree can be made, whereas a proper party is one whose presence is needed for complete and effective adjudication; the court may add parties suo motu.
Q15Institution of suits, parties, frame of suit, pleadings (O1–O8)
Which of the following best states a fundamental rule of pleadings under Order VI Rule 2 CPC?
aPleadings must state the evidence by which the material facts are to be proved
bPleadings must set out propositions of law relied upon by the party
cEvery pleading shall contain a statement in concise form of the material facts on which the party relies, but not the evidence by which they are to be proved
dPleadings need not be signed or verified by the party
Answer: C
Order VI Rule 2 CPC embodies the cardinal rule that a pleading must state only the material facts in a concise form (facta probanda), and not the evidence (facta probantia) by which those facts are to be proved.
Which of the following properties is NOT exempt from attachment and sale in execution of a money decree under the proviso to Section 60(1) CPC?
aThe necessary wearing apparel and cooking vessels of the judgment-debtor and his family
bTools of artisans and, for an agriculturist, implements of husbandry and cattle needed to earn a livelihood
cStipends and gratuities allowed to pensioners of the Government
dA house belonging to a judgment-debtor who is a trader, not being an agriculturist
Answer: D
The exemptions in the proviso to Section 60(1) CPC cover wearing apparel/cooking vessels, artisans' tools and agriculturists' implements/cattle, and pension stipends; a trader's house enjoys no such exemption (the house/agricultural-land exemption is confined to agriculturists).
After immovable property is attached in execution of a money decree, the judgment-debtor privately sells it to a third party. Regarding this transfer, which statement is correct under Section 64 CPC?
aThe transfer is void as against all claims enforceable under the attachment
bThe transfer is wholly void for all purposes and against the entire world
cThe transfer is perfectly valid because attachment does not restrict alienation
dThe transfer is voidable only at the option of the transferee
Answer: A
Under Section 64(1) CPC a private transfer of attached property contrary to the attachment is void only as against claims enforceable under the attachment, not void for all purposes; it remains good between the transferor and transferee.
An immovable property is attached and sold in execution. The judgment-debtor had, before the attachment, entered into a registered contract for sale of the same property with Y. Under the proviso (sub-section 2) to Section 64 CPC, what is the position of Y's claim?
aY's claim is void because the sale was completed after attachment
bY's claim is protected as the contract was entered into and registered before the attachment
cY's claim survives only if the contract was unregistered
dY's claim is defeated regardless, since attachment overrides all prior contracts
Answer: B
Section 64(2) CPC (inserted in 2002) protects a transfer made in pursuance of a contract for transfer entered into and registered before the attachment, so Y's registered prior agreement is saved from the avoidance under Section 64(1).
An auction-purchaser's sale of immovable property is challenged. To get the sale set aside under Order 21 Rule 90 CPC on the ground of material irregularity or fraud in publishing or conducting the sale, the applicant must additionally establish:
aThat the price fetched was below the reserve price
bThat the decree-holder himself was the purchaser
cThat he has sustained substantial injury by reason of such irregularity or fraud
dNothing more; proof of irregularity alone is sufficient
Answer: C
Order 21 Rule 90(2) CPC bars setting aside a sale for irregularity or fraud in publishing/conducting it unless the court is satisfied the applicant sustained substantial injury by reason of that irregularity or fraud.
To have a sale of immovable property set aside on deposit under Order 21 Rule 89 CPC, a person claiming an interest in the property must deposit in court:
aOnly the amount specified in the proclamation for recovery of which the sale was ordered
bTen per cent of the purchase-money for the purchaser only
cThe full purchase-money paid by the auction-purchaser together with poundage fees only
dFive per cent of the purchase-money for payment to the purchaser, plus the amount specified in the proclamation for the decree-holder (less amounts already received)
Answer: D
Order 21 Rule 89 CPC requires deposit of (a) five per cent of the purchase-money for payment to the auction-purchaser and (b) the amount specified in the sale proclamation for the decree-holder, less any sum since received; the application/deposit must be made within 60 days (Article 127, Limitation Act).
Several decree-holders seek to share in the rateable distribution of assets realised from a judgment-debtor under Section 73 CPC. Which condition is NOT essential for a claim to rateable distribution?
aAll the decrees must have been passed by the very same court that holds the assets
bThe applications must be against the same judgment-debtor
cThe decrees must all be for the payment of money
dThe application to share must be made before the receipt of the assets by the court holding them
Answer: A
Section 73 CPC requires money decrees against the same judgment-debtor and applications made before receipt of the assets by the holding court; the decrees need not have been passed by the same court, so option (d) is not a requirement.
Under Section 39 CPC, the court that passed the decree may, on the decree-holder's application, transfer it for execution to another court. For this purpose, the transferee court is a 'court of competent jurisdiction' if:
aIt is a court of higher rank than the court that passed the decree
bIt would have had jurisdiction to try the suit in which the decree was passed, at the time of making the transfer application
cIt is situated in the same district as the court that passed the decree
dThe judgment-debtor consents in writing to the transfer
Answer: B
Explanation 2 to Section 39 CPC deems a court to be of competent jurisdiction if, at the time of the transfer application, it would have jurisdiction to try the suit in which the decree was passed.
Where a decree directs the delivery of immovable property in the occupancy of a tenant not bound by the decree, the proper mode of execution under Order 21 CPC is:
aSale of the property and payment of proceeds to the decree-holder
bForcible eviction of the occupant by removing him and putting the decree-holder in actual physical possession
cDelivery of symbolic possession by affixing a copy of the warrant and proclaiming the decree-holder's title by beat of drum
dDetention of the occupant in civil prison until he vacates
Answer: C
Order 21 Rule 36 CPC provides that where property is in the occupancy of a tenant or person not bound to surrender, the court delivers symbolic possession by affixing a copy of the warrant and proclaiming the decree-holder's right by beat of drum; actual (physical) delivery under Rule 35 applies where the property is in the judgment-debtor's occupancy.
A trial court, while trying a suit, forms the opinion that a State Act applicable to the case is invalid and ultra vires, but the invalidity has not yet been declared by the High Court or the Supreme Court. What course does Section 113 CPC require?
aThe trial court may itself declare the Act invalid and decide the suit accordingly
bThe trial court must stay the suit indefinitely until the legislature clarifies
cThe trial court must transfer the suit to the Supreme Court for adjudication
dThe trial court must state a case setting out its opinion and reasons and refer it for the opinion of the High Court
Answer: D
Under the proviso to Section 113, where a court is satisfied that a case pending before it involves a question as to the validity of an Act, Ordinance or Regulation, the determination of which is necessary, and is of opinion it is invalid but it has not been so declared by the High Court or Supreme Court, the court shall state a case and refer it for the High Court's opinion.
In Major S.S. Khanna v. Brig. F.J. Dillon (1964), the Supreme Court was concerned with the meaning of "any case which has been decided" in Section 115 CPC. Which proposition did the Court endorse?
aThe expression "case" is wide enough to include a part of a case, so that an interlocutory order deciding an issue may amount to a "case which has been decided"
bThe expression "case" is limited to a suit decided in its entirety by a final judgment
cRevision lies only where an appeal would otherwise also be available
dRevision is wholly unavailable against any order passed during the pendency of a suit
Answer: A
In Major S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497, the Supreme Court held that "case" in Section 115 is not restricted to the entire suit and may include a part of a case, so an interlocutory order deciding an issue can constitute a "case which has been decided".
In a suit of a nature cognisable by a Court of Small Causes, the trial court passes a decree where the value of the subject-matter of the original suit is Rs. 8,000. The aggrieved party wishes to file a first appeal. Which of the following is correct under Section 96 CPC?
aNo appeal of any kind lies because the suit is of small cause nature
bAn appeal lies only on a question of law, and not on a question of fact
cAn appeal lies on both questions of fact and law
dAn appeal lies only with leave of the appellate court
Answer: B
Under the proviso in Section 96(4) CPC, no appeal shall lie except on a question of law from a decree in a suit cognisable by Courts of Small Causes when the value of the subject-matter does not exceed Rs. 10,000. Since Rs. 8,000 is below the ceiling, only a question of law may be agitated.
Regarding a second appeal under Section 100 CPC, which statement is most accurate?
aA second appeal lies on any error of fact appearing on the record so long as it causes injustice
bOnce the High Court frames a substantial question of law, the respondent is barred from arguing that the case involves no such question
cA second appeal lies on a substantial question of law, and where the High Court is satisfied such a question is involved, it must formulate that question and the appeal is heard on the question so formulated
dThe High Court can never hear the appeal on any question of law other than the one it originally formulated
Answer: C
Section 100(1)-(4) confines second appeals to a substantial question of law, which the High Court must formulate; Section 100(5) provides the appeal is heard on the question so formulated. The respondent may still argue at the hearing that no such question arises, and the proviso to 100(5) lets the High Court hear other substantial questions for recorded reasons, so options (b), (c) and (d) are wrong.
A subordinate court, while deciding a pending suit, forms the opinion that a particular State Act necessary for disposing of the case is ultra vires, but neither the High Court to which it is subordinate nor the Supreme Court has so declared. What is the correct course under the law of reference (Section 113 CPC)?
aThe subordinate court must itself strike down the Act as invalid and decide the suit accordingly
bThe subordinate court must dismiss the suit for want of jurisdiction to test the Act's validity
cThe subordinate court may proceed only after obtaining the parties' consent to make a reference
dThe subordinate court is bound to state a case setting out its opinion and reasons, and refer it for the opinion of the High Court
Answer: D
Under the proviso to Section 113 CPC, where a court is satisfied that a case involves a question as to the validity of an Act/Ordinance/Regulation whose determination is necessary, and is of opinion it is invalid but it has not been so declared by the superior High Court or Supreme Court, the court shall state a case and refer it for the High Court's opinion. The reference is mandatory and needs no party consent.
Which of the following is NOT a recognised ground for review of a judgment under Order 47 Rule 1 read with Section 114 CPC?
aAn erroneous appreciation of evidence by the court which the applicant wishes to have reconsidered on merits
bDiscovery of new and important matter or evidence which, after due diligence, was not within the applicant's knowledge or could not be produced earlier
cA mistake or error apparent on the face of the record
dAny other sufficient reason analogous to the specified grounds
Answer: A
Order 47 Rule 1 CPC limits review to (i) discovery of new and important evidence not earlier available despite due diligence, (ii) a mistake or error apparent on the face of the record, and (iii) any other sufficient reason (read ejusdem generis). A mere re-appreciation of evidence on merits is in the nature of an appeal and is not a ground for review.
Which of the following correctly states a feature of the High Court's revisional jurisdiction under Section 115 CPC (as it stands after the 1999 amendment)?
aRevision lies even where an appeal is provided against the order, at the option of the aggrieved party
bThe High Court shall not vary or reverse an order made in the course of a suit unless the order, had it been made in favour of the applicant, would have finally disposed of the suit or proceeding
cThe High Court may revise any interlocutory order merely because it is erroneous on facts
dA revision automatically operates as a stay of the suit or proceeding before the subordinate court
Answer: B
The proviso to Section 115(1) (after the 1999 amendment) bars the High Court from varying or reversing an order made in the course of a suit unless the order, if made in favour of the applicant, would have finally disposed of the suit. Revision lies only where no appeal lies (so (a) is wrong), is confined to jurisdictional errors not mere factual errors ((b) wrong), and Section 115(3) provides revision shall not operate as a stay unless the court so orders ((d) wrong).
Both issues of law and of fact arise in a suit. The court is of opinion that the case may be disposed of on an issue of law alone. Under Order XIV Rule 2, the court may try that issue of law first only if it relates to:
aThe credibility of the plaintiff's witnesses or the genuineness of documents
bAny question of law whatsoever, at the court's unfettered discretion
cThe jurisdiction of the court, or a bar to the suit created by any law for the time being in force
dOnly the question of limitation, and no other
Answer: C
Order XIV Rule 2(2), notwithstanding the general rule to pronounce on all issues, permits trying an issue of law first only where it relates to (a) the jurisdiction of the court, or (b) a bar to the suit created by any law in force.
Which of the following correctly states the general rule under Order XIV Rule 2(1) regarding disposal of a suit on a preliminary issue?
aThe court must always dispose of a suit on a preliminary issue if one is raised
bThe court is barred from framing any preliminary issue at all
cPreliminary issues may be decided only with the consent of both parties
dNotwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to sub-rule (2), pronounce judgment on all issues
Answer: D
Order XIV Rule 2(1), as substituted by the 1976 amendment, mandates that notwithstanding a case may be disposed of on a preliminary issue, the court shall (subject to sub-rule (2)) pronounce judgment on all issues, to avoid piecemeal remands.
Under Order XVIII Rule 1, who has the right to begin at the hearing of a suit?
aThe plaintiff, unless the defendant admits the facts alleged and contends that the plaintiff is not entitled to relief in point of law or on additional facts, in which case the defendant begins
bAlways the plaintiff, in every case, without exception
cAlways the defendant, since he must rebut the plaint
dWhichever party the court selects by lot
Answer: A
Order XVIII Rule 1 gives the plaintiff the right to begin, except where the defendant admits the facts alleged and contends that on a point of law or on additional alleged facts the plaintiff is not entitled to any relief, in which case the defendant has the right to begin.
After the 2002 amendment, what is the prescribed mode of recording the examination-in-chief of a witness under Order XVIII Rule 4?
aIt must always be recorded orally by the presiding judge
bIt shall be on affidavit, with copies supplied to the opposite party
cIt may be dispensed with entirely if documents are filed
dIt must be recorded only by a Commissioner in every case
Answer: B
Order XVIII Rule 4(1), as amended, provides that in every case the examination-in-chief of a witness shall be on affidavit, copies being supplied to the opposite party; cross-examination and re-examination are then taken by the court or a commissioner.
Where there are several defendants and at the first hearing some appear but others do not, and the absent defendants were duly served, what does Order IX Rule 11 provide?
aThe entire suit must be adjourned until all defendants appear
bThe suit must be dismissed against the absent defendants
cThe suit may proceed, and at the time of pronouncing judgment the court shall make such order as it thinks fit with respect to the absent defendants
dFresh summons must be issued to all defendants jointly
Answer: C
Order IX Rule 11 provides that where one or more of several defendants appear and others do not, the suit shall proceed, and the court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who did not appear.
On the day fixed for hearing, the defendant appears but the plaintiff does not appear, and the defendant admits the whole of the plaintiff's claim. Under Order IX Rule 8, what shall the court do?
aDismiss the suit, since the plaintiff is absent
bAdjourn the suit and direct the plaintiff to appear
cStrike off the defendant's appearance and proceed ex parte
dPass a decree against the defendant on the basis of his admission, to the extent of the admission
Answer: D
Under Order IX Rule 8, where the defendant appears and the plaintiff does not, the court shall dismiss the suit unless the defendant admits the claim or part thereof; to the extent of such admission the court shall pass a decree against the defendant and dismiss the suit as to the rest.
Order 40 Rule 1(2) CPC places a limit on the court's power while appointing a receiver. That limit is that the court shall not, by appointment of a receiver:
aRemove from possession any person whom no party to the suit has a present right so to remove
bConfer on the receiver any power to institute suits
cFix any remuneration for the receiver out of the property
dAppoint a receiver before the defendant has entered appearance
Answer: A
Order 40 Rule 1(2) provides that nothing in the rule authorises the court to remove from possession or custody of property any person whom any party to the suit has not a present right so to remove.
Under Order 40 Rule 4 CPC, where a receiver fails to account for moneys received, or where loss is occasioned by his wilful default or gross negligence, the court may:
aOnly initiate proceedings for criminal breach of trust before a magistrate
bDirect his property to be attached and sold to make good the amount found due
cRefer the dispute to arbitration under the receivership deed
dRecover the amount only by a separate civil suit against the receiver
Answer: B
Order 40 Rule 4 empowers the court, on a receiver's failure to account or where loss is caused by his wilful default or gross negligence, to attach and sell his property to recover the amount found due, after directing payment within a fixed period.
Order 38 Rule 1 CPC permits the court to issue a warrant to arrest the defendant before judgment. Which of the following is a ground specified for such arrest?
aThe defendant has filed multiple frivolous applications to delay trial
bThe defendant has failed to pay court fees demanded by the plaintiff
cThe defendant, with intent to delay the plaintiff or obstruct execution of a decree, is about to abscond or leave the local limits of the court's jurisdiction
dThe defendant has refused to participate in mediation ordered by the court
Answer: C
Order 38 Rule 1 allows arrest before judgment where the defendant, with intent to delay the plaintiff or obstruct/delay execution of any decree, has absconded or is about to abscond/leave the court's jurisdiction, has disposed of property, or is about to leave India in circumstances obstructing execution.
Property belonging to Z is attached before judgment in a suit between X and Y under Order 38. A third party, P, claims that the attached property in fact belongs to him. How is P's claim to be dealt with?
aP must wait until the decree is passed and then file a separate title suit
bThe attachment is automatically vacated the moment any third-party claim is preferred
cP can only seek relief by way of a revision to the High Court
dP's claim is to be adjudicated in the manner provided for adjudication of claims to property attached in execution of a decree
Answer: D
Order 38 Rule 8 provides that where a claim is preferred to property attached before judgment, it shall be adjudicated upon in the manner provided for adjudication of claims to property attached in execution of a decree for payment of money.
In Raman Tech. & Process Engg. Co. v. Solanki Traders, (2008) 2 SCC 302, the Supreme Court held that for attachment before judgment under Order 38 Rule 5, the mere shifting of business or removal of machinery to other premises:
aBy itself is not a ground for granting attachment before judgment
bIs conclusive proof of intent to defeat the decree and justifies attachment
cShifts the burden onto the defendant to disprove fraudulent intent
dEntitles the plaintiff to attachment without proving a prima facie case
Answer: A
In Raman Tech the Court held that shifting of business or removal of machinery to other premises, by itself, is no ground for attachment; the plaintiff must show a bona fide prima facie claim and that the defendant is about to dispose of/remove property with intent to obstruct or delay execution.
Order 38 Rule 6 CPC deals with the consequence where a defendant fails to show cause why he should not furnish security, or fails to furnish the security required, in attachment-before-judgment proceedings. The court may then:
aPass a decree in favour of the plaintiff for the entire claim
bOrder that the property specified, or such portion as appears sufficient to satisfy any decree, be attached
cCommit the defendant to civil prison for a term not exceeding six months
dStrike off the defence and proceed ex parte against the defendant
Answer: B
Order 38 Rule 6 provides that where the defendant fails to show cause or to furnish the required security, the court may order that the property specified, or such portion as appears sufficient to satisfy any decree that may be passed, be attached.
Regarding interest from the date of the decree to the date of payment (future interest) under Section 34 CPC, what is the general ceiling and its exception?
aFuture interest may be awarded at any rate the court considers reasonable, with no statutory ceiling
bFuture interest is fixed at a mandatory 12% per annum in all cases
cFuture interest shall not ordinarily exceed 6% per annum, but in a commercial transaction it may exceed 6% subject to the contractual rate or the rate at which nationalised banks lend for such transactions
dFuture interest can never exceed 6% per annum even in commercial transactions
Answer: C
The proviso to Section 34(1) CPC caps future interest at 6% per annum, but permits a higher rate in commercial transactions, limited by the contractual rate or, absent contract, the rate at which nationalised banks lend in relation to commercial transactions.
As to costs under Section 35 CPC, which statement is most accurate?
aAward of costs is mandatory in favour of the successful party and the court has no discretion to deny them
bCosts can be awarded only against the defendant and never against a plaintiff
cThe court has no power to direct out of what property costs are to be paid
dCosts are entirely in the discretion of the court, which has full power to determine by whom and to what extent they are paid; where costs do not follow the event, the court shall state its reasons in writing
Answer: D
Section 35 CPC makes costs discretionary, giving the court full power over by whom, out of what property, and to what extent costs are paid; where the court directs that costs shall not follow the event, it must record its reasons in writing.
A defendant raises a defence that the trial court finds to be false and vexatious to the knowledge of the defendant. The court wishes to award compensatory costs under Section 35A CPC. Which proposition is correct?
aCompensatory costs under Section 35A may not exceed Rs. 3,000 or the limit of the court's pecuniary jurisdiction, whichever is less
bThere is no monetary ceiling on compensatory costs under Section 35A
cCompensatory costs under Section 35A may be awarded for the first time by an appellate court even if the trial court refused them
dSection 35A applies to every suit including those covered by other special cost provisions
Answer: A
Section 35A(2) CPC caps compensatory costs for false or vexatious claims/defences at Rs. 3,000 or the limit of the court's pecuniary jurisdiction, whichever is less; such an order can only be passed by the court of first instance.
Where a party obtains an adjournment or fails to take a step required for the progress of the suit, the court orders costs under Section 35B CPC. What is the distinctive consequence attached to non-payment of such costs?
aNon-payment merely converts the costs into a money decree recoverable separately, with no effect on the suit
bPayment of the costs by the day fixed is a condition precedent to that party being permitted to further prosecute the suit (if plaintiff/appellant) or defend it (if defendant/respondent)
cNon-payment automatically results in dismissal of the entire suit irrespective of which party caused the delay
dSection 35B costs can only be ordered at the final disposal of the suit, not during interlocutory delay
Answer: B
Section 35B CPC provides that costs for causing delay must be paid by the date fixed, and such payment is a condition precedent to further prosecution of the suit by a defaulting plaintiff/appellant or defence by a defaulting defendant/respondent.
Q47Suits in special cases & summary suits (O1 R8, interpleader, O37)
P, the plaintiff in a representative suit under Order 1 Rule 8 CPC brought on behalf of numerous co-owners, later wishes to abandon the suit and withdraw it. What is the legal position?
aP may freely abandon or withdraw the suit, as the other persons were never formally parties to it
bAbandonment requires the prior written consent of every represented person without exception
cThe suit cannot be abandoned, withdrawn or compromised except after notice has been given to all persons so interested, at the plaintiff's expense, in the manner the court directs
dOnly the court, suo motu, may permit withdrawal; the plaintiff has no locus to seek it
Answer: C
Order 1 Rule 8(4) CPC bars abandonment, withdrawal or compromise of a representative suit unless notice has been given, at the plaintiff's expense, to all persons interested in the manner the court directs; this protects the represented class. Individual consent of every person (c) is not the statutory requirement.
Q48Suits in special cases & summary suits (O1 R8, interpleader, O37)
A warehouse-keeper holds goods to which two rival claimants assert title adversely to each other, the keeper himself claiming no interest beyond his storage charges. Regarding an interpleader suit under Section 88 read with Order 35 CPC, which statement is correct?
aAn agent may always file an interpleader suit to compel his principal to interplead with a third person claiming through that principal
bA tenant may file an interpleader suit to compel his landlord to interplead with another person claiming the rent through the landlord
cAn interpleader suit lies even where the plaintiff himself claims a beneficial title to the disputed property
dThe plaint must state that the plaintiff claims no interest in the subject-matter other than charges or costs and that there is no collusion with any defendant
Answer: D
Order 35 Rule 1 requires the interpleader plaint to state, inter alia, that the plaintiff claims no interest in the subject-matter other than charges/costs and that there is no collusion with any defendant; a plaintiff claiming a beneficial interest (d) cannot maintain such a suit. Order 35 Rule 5 bars an agent against his principal and a tenant against his landlord, making (a) and (b) wrong.
Q49Suits in special cases & summary suits (O1 R8, interpleader, O37)
Which one of the following suits is NOT maintainable as a summary suit under Order 37 CPC?
aA suit for unliquidated damages for breach of contract and loss of reputation
bA suit to recover a liquidated demand in money payable under a written contract
cA suit upon a dishonoured promissory note for a fixed sum
dA suit upon a bill of exchange for a definite amount
Answer: A
Order 37 Rule 1(2) confines the summary procedure to suits on bills of exchange, hundis and promissory notes, and to suits seeking to recover a debt or liquidated demand in money arising on a written contract, enactment or guarantee. A claim for unliquidated damages is not a 'debt or liquidated demand' and therefore falls outside Order 37.
Q50Suits in special cases & summary suits (O1 R8, interpleader, O37)
On a defendant's application for leave to defend a summary suit under Order 37 Rule 3 CPC, the court finds that the defence raised is plainly illusory, sham and practically moonshine. As clarified by the Supreme Court in IDBI Trusteeship Services Ltd. v. Hubtown Ltd. (2017), what is the proper course?
aLeave to defend must always be granted unconditionally, since denial of leave is impermissible in law
bThe court should ordinarily refuse leave to defend, and the plaintiff is entitled to judgment forthwith
cThe court must grant conditional leave on the defendant depositing the entire suit amount in court
dThe court is bound to frame issues and proceed to a full trial regardless of the nature of the defence
Answer: B
In IDBI Trusteeship Services Ltd. v. Hubtown Ltd., (2017) 1 SCC 568, the Supreme Court held that where the defence is frivolous, vexatious or sham/moonshine, leave to defend should be refused and the plaintiff is entitled to judgment; unconditional leave is reserved for substantial defences and conditional leave for doubtful ones.
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