NATIONAL UNIVERSITY OF STUDY & RESEARCH IN LAW, RANCHI
IN THE HONBLE HIGH COURT OF JHARKHAND AT RANCHI
CIVIL APPEAL NO/2013
IN THE MATTER OF:
SRI CHANDRA SEKHAR & ORS
................................Appellant
V.
MUKUL SHARMA
...........................Respondents
WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT
Most Respectfully Submitted to the Honble Chief Justice and other Companion Judges of the Honble High Court of Jharkhand
COUNSEL ON BEHALF OF RESPONDENT AKSHAY SINHA ROLL NO. 55 SEMESTER IV SECTION A
Written Submission on behalf of the Respondent
NATIONAL UNIVERSITY OF STUDY & RESEARCH IN LAW, RANCHI
NUSRL, RANCHI TABLE OF CONTENTS
INDEX OF AUTHORITIES A.] INDIAN JUDICIAL DECISIONS B.] FOREIGN JUDICIAL DECISIONS C.] STATUTES, DELEGATED LEGISLATION AND POLICIES D.] BOOKS, COMMENTARIES AND TREATISES E.] LIST OF ABBREVIATIONS
STATEMENT OF JURISDICTION ........................................................................................ STATEMENT OF FACTS ........................................................................................................ STATEMENT OF ISSUES ....................................................................................................... SUMMARY OF ARGUMENTS ............................................................................................... ARGUMENTS ADVANCED .................................................................................................... PRAYER .....................................................................................................................................
Written Submission on behalf of the Respondent
NATIONAL UNIVERSITY OF STUDY & RESEARCH IN LAW, RANCHI
INDEX OF AUTHORITIES
A.] INDIAN JUDICIAL DECISIONS
B.] BOOKS AND COMMENTARIES
PRASAD B.M, MOHAN MANISH, MULLA BUTTERWORTHS, 15TH EDN; 2012.
ON
CODE
OF
CIVIL PROCEDURE , LEXISNEXIS
SARKAR PRABHAS, SARKAR S.C., SARKAR'S THE LAW OF CIVIL PROCEDURE, 11TH EDITION 2009.
JAIN M.P., THE CODE OF CIVIL PROCEDURE, LEXISNEXIS BUTTERWORTHS , 3RD EDITION 2011.
TAKWANI C.K., THE CODE OF CIVIL PROCEDURE, EASTERN BOOK CO, 7TH EDITION 2011
D.] INTERNET SITES http://www.manupatra.com http://www.scconline.com http://www.supremecourtcaselaw.com http://www.legalserviceindia.com
Written Submission on behalf of the Respondent
NATIONAL UNIVERSITY OF STUDY & RESEARCH IN LAW, RANCHI
http://www.lexisnexis.com E.] LIST OF ABBREVIATIONS
AIR All AP Bom. CPC Del Edn. eds. HC HP IPC ILR Kar M.P. Mad p. P&H Rep. SC SCALE SCC SCR Sec. Supp Sec. Vol.
Paragraph All India Reporters Allahabad Andhra Pradesh Bombay Code of Civil Procedure Delhi Edition editors High Court Himachal Pradesh Indian Penal Code Indian Law Reports Karnataka Madhya Pradesh Madras page Punjab and Haryana Reprint Supreme Court Supreme Court Almanac Supreme Court Cases Supreme Court Reporter Section Supplementary Section Volume
Written Submission on behalf of the Respondent
NATIONAL UNIVERSITY OF STUDY & RESEARCH IN LAW, RANCHI
v.
Versus
STATEMENT OF JURISDICTION
THE PLAINTIFF SUBMITS TO THE HONBLE HIGH COURT OF JHARKHAND UNDER SECTION 100
OF CODE OF CIVIL PROCEDURE, 1908, WHICH READS AS HEREUNDER:
______________________________________________________
100. SECOND APPEAL (1) SAVE AS OTHERWISE EXPRESSLY PROVIDED IN THE BODY OF THIS CODE OR BY ANY OTHER LAW
FOR THE TIME BEING IN FORCE, AN APPEAL SHALL LIE TO THE PASSED IN APPEAL BY ANY
HIGH COURT FROM EVERY DECREE
IF THE
COURT
SUBORDINATE TO THE
HIGH COURT,
HIGH COURT
IS
SATISFIED THAT THE CASE INVOLVES A SUBSTANTIAL QUESTION OF LAW.
(2) AN APPEAL MAY LIE UNDER THIS SECTION FROM AN APPELLATE DECREE PASSED EX PARTE. (3) IN
AN APPEAL UNDER THIS SECTION, THE MEMORANDUM OF APPEAL SHALL PRECISELY STATE
THE SUBSTANTIAL QUESTION OF LAW INVOLVED IN THE APPEAL.
(4) WHERE THE HIGH COURT IS SATISFIED THAT A SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN
ANY CASE, IT SHALL FORMULATE THAT QUESTION.
(5) THE
APPEAL SHALL BE HEARD ON THE QUESTION SO FORMULATED AND THE RESPONDENT
SHALL, AT THE HEARING OF THE APPEAL, BE ALLOWED TO ARGUE THAT THE CASE DOES NOT INVOLVE SUCH QUESTION :
PROVIDED THAT NOTHING IN THIS SUB-SECTION SHALL BE DEEMED TO TAKE AWAY OR ABRIDGE THE
POWER OF THE
COURT
TO HEAR, FOR REASONS TO BE RECORDED, THE APPEAL ON ANY OTHER
Written Submission on behalf of the Respondent
NATIONAL UNIVERSITY OF STUDY & RESEARCH IN LAW, RANCHI
SUBSTANTIAL QUESTION OF LAW, NOT FORMULATED BY IT, IF IT IS SATISFIED THAT THE CASE INVOLVES SUCH QUESTION.
______________________________________________________
Written Submission on behalf of the Respondent
NATIONAL UNIVERSITY OF STUDY & RESEARCH IN LAW, RANCHI
STATEMENT OF FACTS The respondent most respectfully submits the brief facts of the case as hereunder: Suit filed by Indrapratha Gas Agency Ltd. on: 11th March 2009 Indrapratha Gas Agency Ltd. filed a suit against Reliable Money Pvt. Ltd. on 11th March 2009, contending that they required the suit premises which they have given it on the rent to Reliable Money Pvt. situate at Kanke Road Ranchi. They have also prayed for institution of an enquiry into mesne profits under Order 20, Rule 12 of CPC and for final determination of mesne profits payable to them. Tenancy has been terminated by notice dated: 3rd January 2009 The Plaintiff, i.e. Indrapratha Gas Agency Ltd. further contended that the tenancy of Reliable Money Pvt. has been terminated by notice dated 3rd January 2009 and they are entitled to vacant possession of the suit premises from that very day. Written statement filed by Reliable Money Pvt. for dismissal of suit: 12th May 2009 Application seeking amendment filed by Reliable Money Pvt.: 20th February 2012 On this, the defendants, i.e. The Reliable Money Pvt. Ltd., filed a written statement on 12th May 2009, praying for dismissal of the suit with costs as the suit is frivolous and vexatious. On 15th July, issues were framed; evidence of plaintiffs witnesses has been recorded. While the suit was at the stage of evidence of the defendants, defendants filed an application for the amendment of the written statement on 20th February 2012. The paragraph which defendants want to include in the statement contends that they have already paid the municipal taxes of the premises in respect of the suit premises till 1st March 2011 which amount to payment of rent.
Written Submission on behalf of the Respondent
NATIONAL UNIVERSITY OF STUDY & RESEARCH IN LAW, RANCHI
Application for amendment opposed by the Plaintiff
The application for amendment has been opposed by the plaintiffs on two grounds; First being the defendants have not offered satisfactory explanation to show that in spite of due diligence they could not have raised the matter before the commencement of the trial. And second, that the averments sought to be incorporated in the written statement are not bona fide and are filed with a view to delay the hearing of the suit.
Order passed by the Civil Judge rejecting the application: 4th February 2013
Application for amendment of written statement was rejected by the learned Judge of Civil Court under Order VI, Rule 17 vide order dated 4 th February 2013.
The order is now under challenge before the Jharkhand High Court filed by Reliable Money Pvt.
Written Submission on behalf of the Respondent
NATIONAL UNIVERSITY OF STUDY & RESEARCH IN LAW, RANCHI
QUESTIONS PRESENTED
THE RESPONDENT RESPECTFULLY ASKS THE HONBLE HIGH COURT OF JHARKHAND, THE FOLLOWING QUESTION:
I.
WHETHER IN VIEW OF THE ADMITTED FACT THAT THE CHANDRA SHEKHAR
WAS
THE SECRETARY OF AN UNREGISTERED CLUB , THE COURTS BELOW ERRED IN LAW BY NOT HOLDING THAT THE SUIT WAS NOT MAINTAINABLE AGAINST THE DEFENDANT OF AN UNREGISTERED CLUB WITHOUT TAKING STEP UNDER ORDER RULE
OF THE CODE OF CIVIL PROCEDURE AND WITHOUT AMENDING THE
PLAINT OR NOT ?
II.
WHETHER
THE COURTS BELOW ERRED IN LAW SUBSTANTIALLY BY NOT
HOLDING THAT THE CHANDRA SHEKHAR HAD ACQUIRED RIGHT , TITLE AND INTEREST IN THE SUIT PROPERTY BY WAY OF ADVERSE POSSESSION OR NOT .
Written Submission on behalf of the Respondent
NATIONAL UNIVERSITY OF STUDY & RESEARCH IN LAW, RANCHI
SUMMARY OF ARGUMENTS
I. WHETHER IN VIEW OF THE ADMITTED FACT THAT THE CHANDRA SHEKHAR WAS THE SECRETARY OF AN UNREGISTERED CLUB, THE COURTS BELOW ERRED IN LAW BY NOT HOLDING THAT THE SUIT WAS NOT MAINTAINABLE AGAINST THE DEFENDANT OF AN UNREGISTERED CLUB WITHOUT TAKING STEP UNDER ORDER I RULE 8 OF THE CODE OF CIVIL PROCEDURE AND WITHOUT AMENDING THE PLAINT OR NOT?
It is humbly contended before this honorable court that the application to amendment of the written statement should not be allowed as the defendant have not offered any satisfactory explanation to show that inspite of due diligence they could not have raised the matter before commencement of the trial, and whatever has be sought to added was within their knowledge .and theses avertments are not bonafide and is filled with a view to delay the hearing of the suit.
Written Submission on behalf of the Respondent
NATIONAL UNIVERSITY OF STUDY & RESEARCH IN LAW, RANCHI
PRAYER
WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND AUTHORITIES CITED, IT IS HUMBLY REQUESTED THAT THIS HONBLE COURT MAY BE PLEASED TO:
1. DIRECT THAT THE ORDER OF CIVIL COURT WAS APPRECIABLE IN REJECTING THE APPLICATION
2. DIRECT THAT THE AMENDMENT SOUGHT IN THE PRESENT CASE DOES NOT DESERVES TO BE ALLOWED
AND PASS ANY OTHER RELIEF THAT THIS HONBLE COURT MAY BE PLEASED TO GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE
ALL OF WHICH IS RESPECTFULLY SUBMITTED
COUNSEL FOR THE PLAINTIFF
Written Submission on behalf of the Respondent
