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Q. 1 - Plaint
CIVIL PLEADINGS
IN THE COURT OF DISTRICT JUDGE (DISTRICT __________) RAIPUR
SUIT NO ……………. OF 20...
(SUIT UNDER ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE,
IN THE MATTER OF:
Ganesh Yadav ………. PLAINTIFF S/o Ram Singh Yadav D.no.247, Telibandha Road Raipur VERSUS Suraj ……. DEFENDANT S/o Krishna D.no.249, Telibandha Road Raipur SUIT FOR RECOVERY OF RS. 25,000/-(Twenty-Five Thousand only) UNDER ORDER XXXVII OF CODE OF CIVIL PROCEDURE, 1908 MOST RESPECTFULLY SHOWETH:
- That the Plaintiff, Mr. Ganesh Yadav, son of Mr. Ram Singh Yadav, is a resident of D. No .247, Telibandha Road, Raipur.
- That the Defendant, Mr. Suraj, son of Krishna, is a resident of D. No 249, Telibandha Road, Raipur.
- That the Defendant approached the Plaintiff on 26.02.2018, demanding a loan of Rs. 25,000/- (Twenty-Five Thousand Only /-), agreeing to pay interest on the said amount at the rate of twenty- four percent per annum.
- That the Defendant executed a Promissory Note to the Plaintiff. The said Promissory Note was scribed in the presence of Sri Kumar, who is a document writer, residing in Raipur. The said Promissory Note was attested by Messrs. Saurabh Kumar and Ajay Kumar respectively.
- That the Plaintiff made repeated demands to the Defendant for repayment of the loan amount along with interest, any of which the Defendant did not reply.
- That the Plaintiff served a legal notice dated 04.01.2019 under Section 80 of the Civil Procedure Code, 1908 to the Defendant, calling upon the Defendant to pay the outstanding amount with interest at the rate of twenty four percent per annum which has been accumulated from 26.01.2018 up till the appointed date of payment.
- That the Defendant received said notice on 27.01.2019. However, the Defendant neither paid the said amount nor reply to the notice sent by the Plaintiff.
- That the Defendant is now liable to pay a sum of Rs. 25,000/- along with accumulated interest at the rate of twenty four percent per annum from 26.01.2018 till the appointed date of payment
- That the cause of action arose in favour of the Plaintiff when the Defendant failed to pay the loan amount with interest on the appointed date despite repeated intimations made by the Plaintiff to that effect. The cause of action further arose on 27.01.2019 when the Defendant
Place: Through Date: Advocate VERIFICATION: Verified at Delhi on this 20th^ day of February 20… that the contents of paras 1 to 8 of the plaint are true to my knowledge derived from the records of the Plaintiff maintained in the ordinary course of its business, those of paras 9 to 13 are true on information received and believed to be true and last para is the humble prayer to this Hon’ble Court. Plaintiff
AFFIDAVIT
IN THE COURT OF DISTRICT JUDGE (DISTRICT __________) RAIPUR
SUIT NO ……………. OF 20...
(SUIT UNDER ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE,
IN THE MATTER OF:
Ganesh Yadav S/o Ram Singh Yadav D.no.247, Telibandha Road Raipur ……….. PLAINTIFF VERSUS Suraj S/o Krishna D.no.249, Telibandha Road Raipur …………. DEFENDANT AFFIDAVIT OF Sh. Ganesh Yadav S/O. Ram Singh Yadav, Aged About 43 Years, R/O D. No 247, Telibandha Road, Raipur
Q. 2 - Injunction
- An injunction is a judicial process whereby a party is required to do or restrain from doing, any particular act. It is in the nature of preventive relief as the party fears possible future injury. The purpose is to preserve the subject matter of the suit for the time being. Injunctions may be temporary or perpetual.
- Temporary Injunction: A temporary injunction is granted till the disposal of the suit or till further order. It is regulated by the provisions of Order 39 of Civil Procedure Code and can be granted on interlocutory application at any stage of the suit. The court has the power to grant temporary injunction to restrain certain acts of defendant and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to the suit property.
- In brief following circumstances must be established by affidavit or otherwise to obtain temporary injunction – a. that, 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 b. that, the defendant threatens or intends to remove or dispose of his property, with a view to defraud his creditors; or
c. that, the defendant threatens to dispose the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.
- Grant of temporary injunction is a discretionary power which has to be exercised judiciously on being satisfied of following principles – a. In the facts and circumstances of each individual case there must exist a strong probability that, the petitioner has an ultimate chance of success in the suit i.e. prima facie case. b. Court is to balance and weigh the mischief or inconvenience to either side before issuance or withholding the injunction i.e. balance of convenience and, c. As the injunction is granted during the pendency of the suit the Court will interfere to protect the plaintiff from injuries which are irreparable. Irreparable injury must be the one which cannot be adequately compensated for in damages. The injury if not actual may also be apprehended.
- It means that before the Court issues temporary injunction, it must satisfy itself that party praying for relief has prima facie case and balance of convenience is in his favour and that refusal to grant would cause him irreparable injury. If a party fails to make out any of the three ingredients he would not be entitled to the injunction. The granting of temporary injunction is purely within the discretion of court and depend upon a variety of circumstance and it is not possible to lay down any set, rigid or general rule on the discretion of the Court of in all case to be regulated.
- The Hon'ble High Court in case of M/s. Kacchi Properties Vs. Ganpatrao Shankarrao Kadam and Ors. 2010(5) ALL MR 366 held that: “there could always be cases were rule of lis pendens may be in adequate to prevent the mischief and a temporary injunction to prevent such would be warranted. This would imply that a person claiming injunction in such situation would have to show that protection under section 52 of the T.P. Act is not adequate. Merely because there is a power, its exercise could not be sought as a matter of course, or simply because its exercise is unlikely to hurt defendant, for, while granting injunction the court must see that plaintiff makes out a case of irreparable loss and it is not for the defendant to prove that he would suffer if an injunction is issued. After plaintiff proves irreparable loss, comes the question of balance of convenience or rather balance of inconvenience, when the Court would require as to who would suffer greater inconvenience and decide whether injunction ought to be granted.” 10. It is further held by Hon'ble High Court in para 22 that: “a plaintiff need not at all worry about transfer pendente lite and so, occasions for invoking powers under order 39, rule 1 and 2 would arise only in rare cases were the plaintiff can demonstrate that rule of lis pendens is inadequate to protect plaintiffs’ interest.”
- Grounds for continuing injunction: Temporary injunction should be continued where it is necessary to protect the plaintiffs right especially where the action is for sole purpose of injunction. When the circumstances of the case are such that dissolution of injunction would
amount to denial of relief to which plaintiff might show himself entitle in final hearing.
- Principles for withholding temporary injunction. Section 41 of specific Relief Act laid down certain principles for withholding temporary injunction. As per Section 41 the order of temporary injunction can be with hold in following circumstances. a. When there is adequate remedy available or when injunctive relief is to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought or to restrain any person from instituting any proceeding in the court not sub ordinate to that from which injunction is sought or to restrain any person from applying to any legislative body or to restrain any person from prosecuting any criminal proceeding or to prevent breach of contract of performance of which could not be specifically enforced or to prevent on the ground of nuisance when it does not reasonably clear or to prevent a continue breach in which the plaintiff has knowledge or when conduct of the plaintiff or his agents has been such as to dis entitled him to the assistance of the court and when plaintiff has no personal interest in the matter. b. An injunction cannot be granted when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Court. This is based on the equitable principle that if a person wants equity he must come to the court with clean hands. The plaintiff has, therefore, to prove that his conduct was fair and honest, free from any fraud, irregularity or illegality, in his dealings with the defendant. c. The Court will refuse injunction to the plaintiff who has no personal interest in the matter. When the person filing a suit is a nominal plaintiff, or when the plaintiff contends that the interest
the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restrain against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the ex-parte order.”
- In the case of Morgan Stanley Mutual Fund Vs. Kartick Das (1994) 4 SCC 225 Hon'ble Apex Court held that, ex-parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex-parte injunctions are – a. whether irreparable or serious mischief will ensue to the plaintiff; b. whether the refusal of ex-parte injunction would involve greater injustice than the grant of it would involve; c. the court will also consider the time at which the plaintiff first had notice of the act complained as that the making of improper order against a party in his absence is prevented; d. the court will consider whether the plaintiff had acquiesced for some time and in such circumstances, it will not grant ex-parte injunction; e. the court would expect a party applying for ex-parte injunction to show utmost good faith in making the application; f. even if granted, the ex-parte injunction would be for a limited period of time;
g. General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court.
- Perpetual Injunction: A perpetual injunction can be granted only after the hearing of suit on merits. The party seeking perpetual injunction has to establish such right in his favour which requires protection in perpetuity. A party who seeks perpetual injunction has to establish his right by adducing substantial evidence.
- The hon'ble Supreme Court in case of Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs. & Ors on 25 March, 2008 held in para 17 of judgment as under: To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: a. Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. b. As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
suit is dismissed for default stating when interlocutory orders are vacated and on restoration of the suit, if the court intends to revive such interlocutory orders, an express order to that effect should be passed.
- Mandatory Injunction: - A mandatory injunction forbids the defendant to permit the continuance of a wrongful state of things that already exists at the time when the injunction is issued on the purpose of mandatory injunction is thus to restore a wrongful state of things to their former rightful order.
- Mandatory injunction is granted when to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel purpose of the requisite acts.
- Conclusion: The grant of injunction is a purely discretionary. The Court may grant or refuse to grant the same taking into account various factors like the balance of convenience, possibility of adequate relief by way of damages, the conduct of the parties, and the possibility of enforcing its order. The service of temporary injunction order on opponent is necessary. An injunction is therefore only valid when the opponent has been served with the court order. Injunctive relief is not a matter of right, but its denial is within the discretion of the court. Whether or not an injunction will be granted varies with the facts of each case.
Q. 3 – Set Off
A set-off is a kind of counter-claim that operates as a defence to a claim. The doctrine of Set Off allows the defendant to put his own claim against the plaintiff before the court under certain circumstances. Technically, a set off can be defined as a discharge of reciprocal obligations to the extent of the smaller obligation. For example, X files a suit against Y claiming 10,000/-. Y may take a defence that X owes 5,000/- to Y as well. Thus, Y is basically asking to set off 5,000/- of X’s claim and pay only 5,000/-. In Jayanti Lal vs Abdul Aziz AIR 1956 , SC defined Set Off as the extinction of debts of which two persons are reciprocally debtors to one another by the credits of which they are reciprocally creditors to one another. By claiming set off, the defendant is spared from filing a separate suit against the plaintiff. Thus, it reduces the number of suits before the court. Provisions of Set off are specified in CPC under Order VIII Rule 6
Q. 4 – Plaint & Written Statement
IN THE COURT OF DISTRICT JUDGE (DISTRICT __________) RAIPUR
SUIT NO ……………. OF 20...
SUIT UNDER
IN THE MATTER OF:
Saraswati PETITIONER VERSUS S Mohan Reddy RESPONDENT SUIT FOR Most Respectfully Showeth:
Q. 5 – Petition
IN THE COURT OF PRINCIPAL JUDGE,
