Himachal Pradesh Judiciary — Mains 2016

‘A’ alleges that he gave Rs. 50,000 to ‘B’ on 10-3-2015 by pronote for one year and it was agreed that after one year ‘B’ will pay to him Rs. 60,000 for the discharge of the debt. 'B’ alleges that on 1-4-2016 there was an agreement between him and A’s son, ‘C’ and it was agreed that ‘B’ would pay Rs. 50,000 to ‘C’ for the full discharge of debt of ‘A’. ‘B’ also alleges that he paid Rs. 50,000 to ‘C’ by cheque. ‘A’ denied any agreement between ‘B’ and ‘C’ regarding his debt and also alleges that payment by ‘B’ to ‘C’ of Rs. 50.000 was on account of debt of ‘C’. Now ‘A’ wants to file the suit against ‘B’ for the recovery of Rs 60,000 : - (a) Draft a plaint on behalf of ‘A’ [10 Marks] - (b) Draft a written statement on behalf of 'B’. [10 Marks] - (c) Write judgement deciding the suit. [10 Marks]

- (a) ‘Substantive law is different from procedural law.’ Explain by giving reference to the Indian Evidence Act. 1872. [20 Marks] - (b) ‘Confession must be taken as a whole or rejected as a whole,’ Explain with exceptions. What is evidentiary value of confession ? [20 Marks]

- (a) Explain the rule of res judicata. Differentiate between direct res judicata and constructive res judicata. [10 Marks] - (b) Discuss the territorial jurisdiction of the courts for the suits in respect of immovable and movable property. [10 Marks] - (c) Explain the provisions of the code of civil procedure which deal with inherent powers of the courts. What are the limitations on these powers ? [10 Marks] - (d) ‘A', ‘B’ and ‘C’ are the co-owners of a house. They jointly mortgaged the house to 'X’. ‘X’ files a suit against ‘A’,‘B’ and ‘C’ to recover the mortgage money. Summons is served to ‘C’ but not to ‘A’ and ‘B’. None of them appears and ex parte decree is passed against all. ‘A’ and ‘B’ apply to set aside the decree. Whether decree can be set aside against ‘A’ and ‘B’ only or against all ‘A’, ‘B’ and ‘C’ ? [10 Marks]

- (a) Explain the rules relating to the appeals to the Supreme Court under the Code of Civil Procedure. What is the effect of forty fourth constitutional amendment in this regard ? [10 Marks] - (b) Explain the garnishee order. What is its object ? What conditions are necessary before passing of garnishee order ? [10 Marks] - (c) Explain the summary suits. What is the test to allow these suits ? [10 Marks] - (d) ‘A' files a suit against his brother ‘B’ for the share in the house which is in possession of ‘B'. ‘A’ claimed that the house was belonged to his father and after the death of the father, he is entitled to the share in the house. ’B’ claimed in his ‘written statement' that the father during his life time gifted the house to him. During the trial ‘B’ wants to amend his ‘written statement’ that the father made the will and he only is entitle to the house. Whether ‘B' can be allow to amend his written statement by the court ? Give reasons. [10 Marks]

- (a) Explain the appellate and revisional jurisdiction in civil cases under the Himachal Pradesh Courts Act, 1976. [10 Marks] - (b) Explain the ‘reference and revision’ under the Indian Stamp Act, 1899. [10 Marks] - (c) Explain the ‘cancellation of instruments’ under the Specific Relief Act, 1963. [10 Marks] - (d) Explain when the perpetual injunction can be granted under the Specific Relief Act, 1963. [10 Marks]

- (a) What is meant by dying declaration ? Explain the principles on which dying declaration is admissible in evidence despite being hearsay evidence. [10 Marks] - (b) Discuss the circumstances in which opinions of third persons are relevant. How can the handwriting of a person be proved ? [10 Marks] - (c) Explain the ways by which credit of a witness may be impeached under the Indian Evidence Act. Differentiate between section 145 and clause (3) of section 155 of the Indian Evidence Act. [10 Marks] - (d) ‘A’, the Bank Manager and ‘B’ the accountant of the Bank are being tried to conspiracy to cheat ‘C’ by wrongfully taking Rs. 50,000 from the Bank account of 'C’. After the transaction ’B’ made an entry in his diary, showing both ’A’ and B had profited of Rs. 25,000 in the said transaction. Whether the entry can be used as evidence admissible against ‘A’ under section 10 of the Indian Evidence Act ? [10 Marks]

- (a) Explain when the court may presume existence of certain facts under section 114 of the Indian Evidence Act. Explain with illustrations. [10 Marks] - (b) What is the best evidence rule ? Discuss the circumstances when oral evidence can be given regarding a document. [10 Marks] - (c) Explain ‘introductory facts’ and "explanatory facts under the Indian Evidence Act. What is the evidentiary value of ‘identification parades’ ? [10 Marks] - (d) ‘A’ prosecutes ‘B for stealing a buffalo from him. ‘B’ is convicted. ‘A’ afterwards sues ‘C’ for the buffalo which ‘B’ had sold to him before his conviction. Whether the judgement against ‘B’ is relevant between ‘A’ and ‘C’ ? [10 Marks]

- (a) Explain direct and circumstantial evidence. What are the tests required when a case rests entirely on circumstantial evidence ? [10 Marks] - (b) X was tried for the murder of ‘Y’ and ‘Z’. ‘X’ made a statement to the police “About 15 days ago, I and the people of my party were waiting for ‘Y’, ‘Z’ and others at about sunset time at the river side. After arriving them we all beat ‘T’ and ‘Z’ to death. The remaining person ran away. ‘A’ who was in our party, received blows on his hands He had a spear in his hands. He gave it to me then I hid it and my stick, near the river side. I will show you if you come.” The spear and the stick was recovered near the river side. Whether the statement of ‘X' or what part of the statement is relevant ? [10 Marks] - (c) Explain the compromise of suit. What conditions must be satisfied before a consent decree is passed ? [10 Marks] - (d) ‘X’ purchased a computer from the shop ‘A & Co.’ for Rs.50,000. The price to be paid by ‘X’ within one month of sale. During this time the shop was purchased by ‘B & Co.’, ‘A & Co.’ and ‘B & Co.’ both claimed the price of computer from 'X’. ‘X’ wants to institute an interpleader suit against ’A &. Co’ and ‘B & Co.’ for deciding the claims. It is revealed that before institution of suit, ‘X' had a secret agreement with ‘A & Co.' that if A & Co.’ succeeded in the suit, ‘A & Co.’ would accept Rs. 40.000 in full and final satisfaction of his claim. Whether ‘X’ can institute an interpleader suit ? Give reasons. [10 Marks]

With the help of decided cases, discuss the following : - (a) Discuss the rule of ‘exogamy’ under Hindu Law. [10 Marks] - (b) Discuss the law relating to Redemption of portion of mortgaged property. [10 Marks] - (c) Discuss the consequences of “Subletting” of the tenancy. [10 Marks] - (d) Discuss in detail “Consideration of Privity” under the Indian Contract Act. [10 Marks]

- (a) Examine the basis of the restitution of conjugal rights and importance of a decree for restitution. Refer decided cases. [13 Marks] - (b) Write a comprehensive note on “Irretrievable breakdown of marriage” as a ground for matrimonial remedies. Refer to recent Supreme Court judgements. [14 Marks] - (c) Define the term “Insanity”. Do you think that insanity is not a defence in divorce proceedings? Refer to case Law. [13 Marks]

- (a) ‘A’ contracted with 4B’ to supply ‘B’ with 1000 tons of iron at Rs.100, a ton, to be delivered at a stated time, contract ‘C’ for the purchase of 1000 tons of iron at Rs, 80 a ton, telling ‘C’ that her requires so far the purpose of performing his contract in ‘B’, ‘C* fails to perform, ‘A’ will be entitled to any damages ? [13 Marks] - (b) ‘A’ offer to sell ‘B’ a painting which ‘A’ knows is a ‘Copy’ of a well-known masterpiece, ‘B’ thinking that the N’s painting is an original one and ‘A’ must be unaware of this, accept ‘A’ offer. Discuss the validity of the contract and also mention the relevant provisions of the Indian Contract Act. [13 Marks] - (c) Explain the principle of ‘Unjust enrichment’ under the provisions of section 70 of the Indian Contract Act. Refer to decided cases. [14 Marks]

- (a) With the help of' decided cases and illustrations discuss the “Rule of Survivorship” under Hindu Law. [14 Marks] - (b) ’A’ was paid Rs, 10 lacs as sale tax by a firm under the H.P. Sales Tax Law on its forward transactions and subsequently to the payment, ‘A’ firm sought to recover back the tax, under section 72 of the Indian Contract Act, if yes, give your reasons. [13 Marks] - (c) Under what circumstances the fair rent can be increased under the H.P. Urban Rent Control Act, 1987 ? Refer to decided cases and illustrations. [13 Marks]

- (a) Discuss the law relating to restraint of legal proceedings under the Contract Act. What is difference between English Law and Indian Law ? [14 Marks] - (b) Discuss the meaning and nature of woman's estate. Whether she has power of alienation of estate ? What is effect of the Hindu Succession Act, 1956 ? Refer to decided cases. [13 Marks] - (c) 'A’ filed suit for possession, against ‘B’ after expiry of the period of limitation. The defendant, did not take that defence in his written statement. Can the court take notice of the limitation and dismiss the suit ? Discuss. [13 Marks]

- (a) What are the tests for determining whether a lease of immovable property is granted for purpose of manufacturing process and on whom lies the burden to prove that the lease was for manufacturing purpose ? [13 Marks] - (b) What is the status of a lessee in occupation of property after the expiry of lease ? Is a notice under section 106 of the Transfer of Property Act, necessary before filing a suit for ejectment of that person ? Refer to recent decided cases. [14 Marks] - (c) Discuss the doctrine of election under TP Act. What is the difference between English Law and Indian Law in this regard ? [13 Marks]

- (a) “Limitation bars enforcement of a claim but does not extinguish it." Comment with illustrations. While going to the court for filing a suit Ramesh meets with an accident. As a consequence there of Ramesh remain unconscious for fifteen days. The period of limitation for filing the suit expires during this period. Can Ramesh claim extension of time ? Discuss. [14 Marks] - (b) What is the period of limitation prescribed under Criminal Procedure Code for (i) where the offence is punishable with fine only (ii) where the punishment prescribed exceeds one year but less than three years ? Do the provisions relating to limitation in Cr.P.C. apply to economic offences ? Are there any exceptions ? Discuss. [13 Marks] - (c) Whether the law relating to limitation is to be construed very strictly ? What is the latest trend of case law in this regard ? Cite the cases. [13 Marks]

- (a) Whether an agreement of lease between the landlord and the tenant for letting and occupation of a building in contravention of the provisions of the H.P. Urban Rent Control Act, 1987 is enforceable in law and can decree of eviction of the tenant be passed in favour of landlord on the basis there of? Support your answer. [13 Marks] - (b) Discuss the procedure of the “eviction tenant” under HPURC Act, 1987. Refer to decided cases. [13 Marks] - (c) With the help of decided cases, explain the following : - (i) Execution of orders. [4 Marks] (ii) Power to make rules. [4 Marks] (iii) Determination of fair rent. [6 Marks]

- (a) (i) A, an Indian (Hindu male) citizen, who has a wife and three children living in India, goes to the United States for higher studies. After acquiring the citizenship of the United States, he gets married to an American girl. On return to India, can he be prosecuted for bigamy in the Indian court as bigamy is an offence under IPC ? Give reasons, case laws and legal provisions in support of your answer. - (a)(ii) The accused lived with her aunt aged 73. The aunt was suffering from a disease and during the last ten days of her life, was supplied neither food nor medical attendance by the accused, whereby her death was accelerated. What offence, if any, has been committed by the accused ? Give reasons in support of your answer. [5 Marks] - (b)(i) A, an accountant, fraudulently paid money to B, to be kept in a deposit for payment to Y. On demand by Y, the accused made false reports to the effect that Y’s money held as a revenue deposit, was to be transferred to the Civil Court, upon which a cheque for making the transfer was drawn up, which the accused altered to conceal his previous fraud. What offence, if any, has been committed by A ? Give reasons and case law in support of your answer. [5 Marks] - (b)(ii) There was a long-standing dispute over the land between the accused and the deceased X. One morning the accused, while working in their field saw two labourers going to the field of X to work there. The accused shouted at them not to do so, but the labourers paid no heed and walked on. Thereupon the accused rushed at them and began belabouring them with the handles of their spears. Meanwhile X arrived and intervened and the accused attacked him. First B and C attacked him on his legs and he fell down. Then A stabbed X in the head with his spear. He then put his leg on X’s chest to extract the spear blade which has struck in X’s jaws. The blow had gone through the skull and injured the brain, so that X died on the spot. What is, if any, the criminal liability of A, B and C under law ? Give reasons and case law in support of your answer. [5 Marks] - (c)(i) The accused, a boy of twenty-one years of age, was charged for committing the murder of his father. The accused was living with his sister, mother and father. The relations between father and mother were strained, and his father frequently used to quarrel with his mother, whom the believed to be unfaithful. In the night, when the total incident took place, there was a quarrel between the father and the mother of the accused. The accused’s mother called out ‘murder’ and the father forced the mother’s to the top of stairs and threatened to knife her. Believing that her mother’s life was in danger, the accused shot and killed him. There was no evidence that the father had a knife. Decide. What offence, if any, has been committed by the accused under law ? Refer to case law and legal provisions. [5 Marks] - (c)(ii) The accused party were in actual possession of the disputed land after purchase and were sought to be dispossessed by the complainant party, who trespassed on the land armed with lathis. The accused party in defending their possession caused the death of one of the dispossessors, inflicting on him 72 injuries. Can the accused party claim the plea of right of self-defence ? Give reasons and point of law in support of your answer. [5 Marks] - (d)(i) A, a registered Homeopath, administered 24 drops of mother tincture stramonium and a leaf of dhatura to Smt. Deoki aged 20 years, who had been suffering from guinea worm for six weeks. She, accompanied by her mother, uncle and aunt want to the clinic of the accused A, in pursuance of the advertisement made by the accused, that he treated ‘Naru’ "Guinea worm'. After taking this medicine, she started feeling restress and fell ill and ultimately died at 5 p.m- Chemical examination of the stomach contents, and pieces of liver, spleen and kidney could detect no poison in any of these organs. What offence, if any, Has been committed by the Homeopath ? Discuss with the help of case law and legal provisions in support of your answer. [5 Marks] - (d)(ii) Sunita Kumari married of Rakesh Kumar on 9th July, 1985, was found dead on 23rd October, 1988 at the residence of her in laws at Batala in Punjab. The death was found to have occurred not under ordinary circumstances but was the result of the asphyxia. On postmortem it was found that the deceased had injuries on her person including tire ligature mark on the front, right and Left side of neck, reddish brown in colour starting from left side of neck, 2 cm below the left angle of jaw passing just above the thyroid cartilage. The parents of the deceased were allegedly not informed about her death. It was shocking occasion for. Ram Karan, brother of the deceased when he came to deliver some customary presents to his sister on the occasion of Karva Chauth, when He found the dead body of his sister lying at the entrance room and the all family members of the husband were making preparations for cremation. Noticing ligature marks on the neck of her sister, he immediately telephonically informed his parents about the death. What offence/offences if any, has/have been committed by the husband, his parents and family members under law ? Give reason, case laws and legal provisions in support of your answer. [10 Marks]

- (a)(i) Explain the terms ‘Inquiry’ and ‘Investigation’. Distinguish between the two. [5 Marks] - (a)(ii) Which are the different criminal courts under the Criminal Procedure Code ? How is a court of session established and what are its powers and jurisdiction ? [5 Marks] - (b)(i) Write a brief note on the preventive action of the police under the Cr.P.C. [5 Marks] - (b)(ii) Under what circumstances the public is bound to aid and assist the magistrate and the police including giving informations of commission of certain offences under section 39 of Cr.P.C. ? [5 Marks] - (c)(i) Discuss briefly the circumstances under which security can be taken by the court for keeping peace and maintain good behaviour from the criminals under the Cr.P.C. [5 Marks] - (c)(ii) Discuss briefly the procedure to be followed by a magistrate in complaint cases under Cr.P.C. [5 Marks] - (d)(i) What are the contents of charge ? Can the court alter or add to the charge ? When can different persons may be charged and tried jointly in the same trial ? [5 Marks] - (d)(ii) What is bail ? In what cases direction for grant of bail to any person apprehending arrest, may be given under section 438 of the Cr.P.C. ? [5 Marks]

- (a) What defences are available to the drawer of the cheque to escape punishment under section 133 of the Negotiable Instruments Act, 1881 ? Discuss. Refer to Case law, if any. [10 Marks] - (b)(i) What kind of presumption lies under section 139 of the Negotiable Instruments Act, 1881, in favour of holder of a cheque ? [5 Marks] - (b)(ii) Which provision was inserted into Section 141 of the Negotiable Instruments Act, 1881 by the Act 55 of 2002 ? [5 Marks] - (c) Discuss the objects and reasons for thepassing of Amending Act of 2002 to the Negotiable Instruments Act, 1881. What amendments were affected in chapter XVII by this amendment particularly in section 138 of the Act ? [10 Marks] - (d) Discuss the provisions of section 143 of the Negotiable instruments Act, 1881, which provides for the power of court to try cases summarily ? [10 Marks]

- (a)(i) Explain the meaning of the following terms under the Himachal Pradesh Excise Act, 2011 : [10 Marks] (1) ‘Excise revenue' (2) ‘Vehicle’. - (a)(ii) Discuss briefly the provision of section 10 of the H.P. Excise Act, 2011 which provides for the powers of Excise Officer to search, seizure etc. [5 Marks] - (b)(i) Under what circumstances and by whom the liquor vends may be ordered to remain closed under the H.P. Excise Act, 2011 ? [5 Marks] - (b)(ii) Discuss the powers of the financial commissioner to establish or order closure or licensing of distilleries, breweries, winery or warehouse etc. in the state ? [5 Marks] - (c)(i) Discuss briefly the procedure for withdrawal of licences etc. and of surrender of license under the H.P. Excise Act, 2011. [5 Marks] - (c)(ii) What is the ‘penalty for rendering’ or attempting to sender denatured spirit fit for human consumption ? [5 Marks] - (d)(i) How is the consumption of liquor in public places punishable under the H.P Excise Act, 2011 ? What is the penalty under law for such act ? [5 Marks] - (d)(ii) Discuss briefly the procedure of composition of offences commited under the H.P Excise Act, 2011. [5 Marks]

- (a) Explain and illustrate the meaning of the following terms under the Wildlife (Protection) Act, 1972 : [10 Marks] - (i) ‘Animal’ (ii) 'Meat' (iii) ‘Land’ (iv) 'Weapon’. - (b)(i) Under what circumstances the chief wildlife warden can permit the hunting of wild animals? Whether killing of wild animals in self-defence is permissible ? Discuss. [5 Marks] - (b)(ii) Which are the main authorities to be appointed or constructed under the Wildlife (Protection) Act, 1972 ? What are their powers ? [5 Marks] - (c)(i) who are the persons who may enter or reside in a sanctuary ? Which are the duties of a person who resides in a sanctuary ? Discuss. [5 Marks] - (c)(ii) For which specific purposes, the chief wildlife warden may permit any person to enter and reside in a sanctuary ? [5 Marks] - (d)(i) Under which provision of the Wildlife (Protection) Act, 1972 the central government has the power to declare any areas as sanctuaries or national parks ? What procedure is followed by the central government for such purpose ? [5 Marks] - (d)(ii) What is the composition of central Zoo Authority ? On what grounds the central government can remove the members of the Central Zoo Authority. [5 Marks]

- (a)(i) Discuss the procedure to be followed for granting a license to any person dealing in trophy and animal articles. [5 Marks] - (a)(ii) Within how much period and to whom apeal shall lies against the order of suspension or cancellation of a licence or refusing to grant or review a licence ? [5 Marks] - (b) What do you mean by power to compound of offences ? Discuss the procedure for excising this power under the Wildlife (Protection) Act, 1972. [10 Marks] - (c)(i) How and in what manner an offence committed against the Wildlife (Protection) Act, 1972 ? If committed by a company are punishable ? Discuss. [5 Marks] - (c)(ii) How far the Wildlife Act protects the actions of the officers or other employees taken in good faith ? [5 Marks] - (d) Write a short note on the “Penalities” which can be imposed on any person for contravention of any provision of the Wildlife (Protection) Act, 1972. [10 Marks]

- (a) Which of the acts are prohibited in reserved forests ? What punishment is prescribed under the Indian Forest Act 1927 for doing such Prohibited Acts ? [10 Marks] - (b)(i) Discuss the power of the state government to constitute ‘Protected Forests’. [5 Marks] - (b)(ii) which of the matters may be regulated by making rules by the state government in protected forests ? [5 Marks] - (c) Discuss the power and the procedure to be followed in imposing duty on timber and other forest-produce by the central government under the Indian Forest Act, 1927. [10 Marks] - (d)(i) Discuss the power and procedure as laid down under the Indian Forest Act, 1927 regarding seizure of property liable to confiscation and the power to release property so seized. [5 Marks] - (d)(ii) What is the penalty for counterfeiting or defacing marks on trees and timber and for altering boundary marks ? [5 Marks]

- (a)(i) Explain and illustrate the meaning of the following terms under the IPC : [5 Marks] (1) ‘Counterfeit’ (2) Public servant. - (a)(ii) What do you mean by 'solitary confinement’ ? What is the maximum limit of solitary confinement under the IPC ? [5 Marks] - (b)(i) What criminal immunities have been granted to children under seven years of age and children above seven and under twelve, under the 1PC ? [5 Marks] - (b)(ii) What do you mean by 'Right of Private Defence’ ? When the right of self-defence of property extends to causing of death ? [5 Marks] - (c)(i) Distinguish between “Rioting” and “Unlawful Assembly”. [5 Marks] - (c)(ii) Distinguish between “giving false evidence” and “Fabricating false evidence”. What is punishment for false evidence ? [5 Marks] - (d)(i) Distinguish between “Wrongful restraint and “wrongful confinement”. [5 Marks] - (d)(ii) Distinguish between “Dishonest misappropriation of property” and “criminal breach of trust”. [5 Marks]