CIVIL PROCEDURE CODE

SUBMITTED BY

SUBMITTED TO

AADITYA ARORA D R. RUHI

PAUL
1LLB14

NATIONAL LAW UNIVERSITY, DELHI

2016-2017
Suresh Chand Sharma v Ishwar Chand & Ors.

[SUIT NO: 115 OF 1999]

NATURE OF CASE - SUIT FOR PARTITION AND PERMANENT INJUNCTION

Representing the side of the Defendant

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Analysis of the Case of the Defendant

The written statement was filed by the defendants Ishwar Chander Sharma and Satish
Chander Sharma on 4 November 1999 and the same is divided in two parts namely
Preliminary Objections and Reply on Merits.

BRIEF OF PRELIMINARY OBJECTIONS

 The suit suffers from the defect of Non-Joinder of necessary parties and should thus
fall on this ground. The necessary parties being elder brother and 4 sisters of the
plaintiff.
 The plaintiff has concealed the last will of his father which disinherits him of the
property which is the subject matter of the case and thus he has no right, title or
interest in the suit property. So, the right to institute the present suit is lost.
 The suit is for partition and not for possession of the share in the property.
 The plaintiff has not paid the proper court fee.

BRIEF OF REPLY ON MERITS

 The plaintiff and the defendants are not coparceners and there exists no joint hindu
family.
 The agricultural property as mentioned from A to C was bequeathed by the plaintiff’s
father in its entirety to the elder brother Subhash Chander Sharma by his last will
dated 15 June 1989.
 The other property which is a shop is exclusive property owned by both the
defendants.
 The agricultural land mentioned by the plaintiff was partitioned orally in 1989 and the
sale made by the defendant was of the share obtained thereby.
 The physical possession of the sold share was delivered as per the sale deed dated 30 th
July 1998.
 The petition filed by the defendant no. 1 was to make relevant entries of the oral
partition of the agricultural land.
 The shop was not purchased from the sale proceeds of any joint hindu family
property.
 The purchasers of the share in agricultural land were already enjoying the possession
of the said part and thus there is no question of illegally occupying the same.

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  The jurisdiction of the court is not denied.

PRAYER

Dismissal of the suit with compensatory costs apart from ordinary costs was prayed.

BRIEF OF THE APPLICATIONS

In the present suit, the defendants have only filed one reply to the application filed by the
plaintiffs under Order XXXIX Rules 1 and 2 (O39,R1 & 2) read with Section 151 of the
Civil Procedure Code. Apart from this, the defendants have not filed any application on
their own.

The date of filing of this reply is 14 October 1999 and subsequently a written statement
was filed on 4 November 1999 in which the replies to the plaint were given specifically
with preliminary objections. In the reply to the application, the defendant has denied all
the facts alleged by the plaintiff. The defendant has stated that the plaintiff has no right,
title or interest in the properties mentioned. While the agricultural land was rally
partitioned in 1989 before the death of plaintiff’s father, the sale of the share thereby
obtained as completed in 1998 with the delivery of possession of the sold share thereby
itself.

ORDERS PASSED BY THE COURT

1. DATED 18-1-1999
 Via this Order, the plaint was registered and an Order was passed to issue summons to the
defendants by both registered posts and ordinary process upon the plaintiff filing the
process fee.
 The Court further granted an ex parte order under Order 39 Rules 1&2 of the CPC
thereby restraining the defendants from creating any third party interest in the suit
property and further restraining the defendants from giving the possession of the said
property to any third person. The Court granted the injunction without notice of the
Application to the opposite party in accordance with the proviso to Rule 3 of Order 39.
Court in the present suit via same order, ordered to issue notice of the above referred
application by DASTI to the Defendants within 3 days.

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 2. DATED 10-8-1999
 The Court ordered the written statement to be filed within six weeks and the replication
and rejoinder, if any, within six weeks thereafter.
 The parties were ordered to file their original documents before the next date of hearing
which was listed to be before the Joint Registrar on 2nd Dec 1999.
 The interim Orders were to continue.
3. DATED 2-12-1999
 The written statement and reply were filed.
 The Defendants were directed to file the Will referred by them in the preliminary
objections within four weeks after supplying the copy to the opposite counsel.
 The original documents were to be filed within six weeks.
 The Replication was permitted by the Court and ordered that it could be filed within two
weeks of getting the copy of the Will.
 The matter was listed on 22-3-2000 for the admission and denial of the documents.
4. DATED 22-3-2000
 The Defendants hadn’t filed the original Will. They were again ordered to file the Will
within four weeks after supplying a copy to the opposite counsel and the original
documents were to be filed within six weeks.
 The matter was listed on 14-7-2000 for the admission and denial of documents.
5. DATED 14-7-2000
 Original documents hadn’t been filed by the Parties. The counsel for the defendants stated
that the original Will was in the possession of the plaintiff’s brother and the same would
be proved during evidence.
 The matter was now placed before the Court on 9-8-2000 for the framing of issues and
disposal of Interim Application.
6. DATED 9-8-2000
 The counsel for the Plaintiff sought an adjournment on the grounds certain documents
that were required to be filed were yet to be received from Haryana. He further submitted
that an application under Order 1 Rule 10 CPC had been filed.
 The court observed that the Application wasn’t on the Court file and that the plaintiff
ought to have moved the application with more expedition.
 However, the adjournment was allowed.

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 7. DATED 8-9-2000
 The Court renotified it to 8 Jan 2001 in the interest of justice.
8. DATED 21-11-2000
 The counsel for the defendants accepted the notice of application filed under order 1 rule
10 to implead his elder brother and sought two weeks time within which to file reply.
 The Court ordered for the Rejoinder, if any, to be filed within four weeks thereafter.
 The matter was renotified for disposal on 8th Jan 2001.
9. DATED 8-1-2001
 The Court observed that the non-applicant being the owner of the premises on the basis of
the Will, his presence is necessary to enable the Court to effectually and completely
adjudicate upon. Accordingly, the application was allowed subject to a cost of Rs.1000/-
and the amended memo was to be filed within two weeks.
 The Court ordered summons to be issued to the non-applicant both by ordinary process as
well as registered post upon filing the process fee and registered covers.
 It was again slated for 26-4-2001
10. DATED 26-4-2001
 The non-applicant wasn’t served the summons as the process fee wasn’t paid.
 Issue notice to the non-applicant were returnable on 18th September, 2001.
 The cost was to be paid within a week.
11. DATED 18-9-2001
 The Court ordered fresh summons to be given to the defendant no.3 returnable on 11 Jan,
2002.
12. DATED 11-1-2002
 The cost wasn’t paid.
 The Court adjourned the proceedings sine die due to the conduct of the plaintiff.
 As and when the cost is paid, the plaintiff would be entitled to revive the proceedings.
13. Final Order DATED 2-2-2007
 The Court held that the plaintiff hadn’t taken any steps to revive the suit and thereby the
suit was dismissed.

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APPLICATION OF CPC PROVISIONS IN THE PRESENT CASE: ANALYSIS

PLEADINGS

1. Order III Rule 4(1)

Only that person can act on behalf of any person who has been appointed by a document
signed by such person. The Vakaalatnama is filed by the defendant under this rule.

2. Order VI Rule 1

Pleadings consist of the plaint and the written statement. In the present case, the Written
Statement was filed by the defendants on 4 November 1999.

3. Order VI Rule 2(1); Rule 2(2); Rule 2(3)

The Pleadings (Written Statement for the defendant) have to contain only the material
facts and not the evidence. It is divided into paragraphs, and the dates, sums and numbers
are indicated in numbers as well as figures.

The defendant has adhered strictly to the above requirements. For instance, in Para 2 of
the W.S., the defendant has alleged that the agricultural land was partitioned and also a
will was made by plaintiff’s father. He has not attached any evidence as part of the
Written Statement. Though the rule regarding dates and numbers has not been adhered to.

4. Order VI Rule 14

Each pleading shall be signed by the party and his pleader. In the present case, the
Written Statement has been signed by both the pleader and the party.

5. Order VI Rule 14A

Every pleading shall be accompanied by a statement regarding the address of the party.
The defendant has complied with this rule.

6. Order VI Rule 15

Every pleading shall be verified at its foot by a person acquainted with the facts of the
case. The person shall also specify what he verifies of his own knowledge and what he
verifies upon information received and believed to be true. The verification shall also

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 state the date and place at which it was signed. (This rule was amended in 1999 and took
effect from 1st July 2002 to provide that such verification shall also be accompanied by
an affidavit.) Thereby, no affidavit was attached.

The Written Statement contains the verification by the defendant

7. Order VIII Rule 1

The Written Statement has to be filed by the defendant within thirty days from the date of
service of summons, but he can be allowed to file it within a period of ninety days, and
the Court shall record its reasons for doing so.

The Court, in its Order dated 10TH August 1999, has granted six weeks time to the
defendant to file their Written Statement.

8. Order VIII Rule 3

The denial needs to be specific. Each allegation of fact must be specifically denied by the
defendant. The defendant has given a paragraph-wise denial of the facts stated in the
plaint under this rule. The denial is a mirror-image of the Plaint, with each paragraph in
the Plaint being responded to by the corresponding paragraph in the Written Statement.

9. Order I Rule 13

Such adherence to the above rule has been made in the written statements at the earliest
possible.

APPLICATIONS

1. Order XXXIX Rules 1 and 2

Where the property in dispute in a suit is in danger of being wasted, damaged or alienated
by any party, or the defendant threatens to remove the property to defraud the creditors,
or dispossess it, the Court may grant a temporary injunction until the disposal of the suit.
The Court can also grant a temporary injunction to restrain the defendant from
committing a breach of contract. In the present case, the Plaintiff has filed an application
requesting the Court to grant a temporary injunction to restrain the defendant from selling
the house and shop because if he is successful in doing so, it will lead to an irreparable

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loss to him. The defendant has rejected the plaintiff's above claim as false saying that it is
the defendant's right as he is the owner.

2. Order I Rule 9
It deals with mis-joinder and non-joinder and clearly states that no suit shall be
defeated for such a mistake unless it is for a necessary party. In this case an
application under O. I Rule 10 has been granted to join a necessary party.
3. Order I Rule 10

Application under Order I Rule 10 has been granted to join a necessary party.
While sub clause 2 applies, it is to be noted that such an addition would have led
to sub clause 4’s application.

ORDERS AND DECISION

1. Section 151- Inherent power of the courts

Nothing in this code shall be deemed to limit or otherwise affect the inherent
power of the court to make such orders as may be necessary for the ends of
justice, or to prevent abuse of the process of the court. For example, the Orders
dated 8-9-2000, 11-1-2002, 2-2-2007 are based on this function.

2. Section 2(14)-Order

It is a formal expression of any decision of a civil court which is not a decree.

3. Section 27 read with Order 5 Rule 1- Summons to the Defendant

After the institution of the suit, summons was issued to the defendants for the
appearance before the court to file written statement.

4. Order XVII Rule 1- Court may grant time and adjourn hearing

The court may, if sufficient cause is shown, grant time to the parties and may from
time to time adjourn the hearing of the suit. The reason has to recorded in writing.
The provision clearly states that an adjournment may not be given to a party more
than 3 times during the hearing of a suit. This provision has been used in the

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present case. The adjournments weren’t sought for more than thrice by either
party. Adjournments were given in orders dated 22-3-2000, 9-8-2000 for each of
the parties.

5. Order IX Rule 2- Dismissal of Suits in Cases where Summons not Served

in Consequence of Plaintiff’s Failure to Pay Costs

It says that if the summons isn’t served as a consequence of the plaintiff’s failure
to pay the process fees, then the Court may dismiss the suit.

6. Order XXXIX Rule 1- Cases in which temporary injunction may be

granted

It says that injunction can be granted if any property in dispute in a suit is in

danger of being wasted, damaged or alienated by any party to the suit, or
wrongfully sold in execution of a decree, or the defendant threatens, or intends, to
remove or dispose of his property with a view to defrauding his creditors, or the
defendant threatens to dispossess, the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in the suit.

In the present case, the plaintiff was under an apprehension that the suit property
would be wrongfully sold or alienated by the defendants.

7. Order 39 Rule 3 - before granting injunction, court to direct notice to

opposite party

This rule is about ex parte injunction. If it appears that the object of granting the
injunction would be defeated by the delay, then court may pass ex parte injunction
or in other words ad interim injunction. The Court observed that there was such a
necessity in the present case and hence passed an ex parte order restraining the
defendants form creating any third party interest in the said property.

The Court must record its opinions as to why the ex parte order had to be
passed. However, in the present case no such reason was recorded.

8. Order XII Rule 2

Either party may call upon the other party to admit any document within 7 days
from the date of service of notice.

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 In the order dated 2.12.1999, the matter was listed before Joint Registrar for
admission or denial of documents under this rule.

9. Order XIV Rule 1

After the reading of the plaint and the written statement, the Court shall proceed to
frame and record the issues.

In the order dated 29.03.2001, once the documents submitted by the plaintiff were
deemed to be admitted, the matter was put up for the settlement of issues on
18.05.2001 under this rule.

10. Order XIII Rule 1

Original Will should necessary be produced before the settlement of issues
which never happened in the case. Though, the counsel argues that it is not in
possession of the defendant and is to be produced by the not added defendant
who possesses it.

RESEARCHER’S REMARKS

Order XXXIX Rule 3 provisions relating to recording of reasons are obligatory and the same
were not duly performed. In Shiv Kumar Chadha vs. Municipal Corporation of Delhi reported
in 1993 (3) SCC 161 the Supreme court mentioned that the proviso to rule 3 is mandatory.

The grant of adding and summoning a necessary defendant was wrong as it overlooks the
legislated law but as it was in the interest of justice it can be saved.

The court should have also given adherence to Order XXXIX Rule 3-A and have taken steps
for delivering speedy justice. Also the defendant should have put an application under Order
XXXIX Rule 4 for setting aside the injunction.

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