Oct2007civil

28th October 2007 Question Paper - Civil Law

HIGH COURT OF ANDHRA PRADESH: HYDERABAD

WRITTEN EXAMINATION FOR RECRUITMENT TO THE POSTS OF JUNIOR CIVIL JUDGE

UNDER GENERAL RECRUITMENT

CIVIL LAW

28th OCTOBER 2007

TIME: THREE (3) HOURS. MAXIMUM MARKS: 100

(09.00 AM TO 12.00 NOON) INSTRUCTIONS

1. PART 'A' IS COMPULSORY. It caries 30 (thirty) marks.

2. Candidate shall answer question No.2 of PART 'B' and any six other questions of that PART. Each question carries 10 (ten) Marks.

3. Write your Roll Number only in the space provided on the first page of the answer book.

4. Questions shall be answered in English only.

5. Do not either write your name or put your roll number/any mark anywhere in the answer book/additional sheets, if any.

6. Any attempt by the candidate to disclose his/her identity in any manner in the answer sheet will disqualify him/her.

7. No candidate will be permitted to leave the examination hall before 09.30 am.

PART - 'A'

1. Write your Judgment briefly stating reasons with reference to the material (viz., pleadings, evidence and exhibited documents) supplied hereunder.

Plaint:

IN THE COURT OF THE JUNIOR CIVIL JUDGE: MACHILIPATNAM

OS NO. 00 OF 2006

BETWEEN:

P. VENKATARAMANA ..PLAINTIFF

AND

R.SOMARAJU ...DEFENDANT

PLAINT PRESENTED UNDER ORDER VII RULES 1 AND 2 READ WITH SECTION 26 OF THE CODE OF CIVIL PROCEDURE.

1. The plaintiff is a teacher in Z P high School Machilipatnam. The

defendant is an attender in the same school since more than ten years

and both are well acquainted with each other. While so, on 08-10-2003,

-the defendant approached the plaintiff and requested to lend

Rs. 15,000/- (Rupees Fifteen Thousands Only) stating that he is in urgent

need of money to meet his wife's medical expenses and the educational

expenses of his only son who is studying intermediate course and

aspiring to pursue Engineering course. In view of the acquaintance the

plaintiff lent the said sum to the defendant on the said date. The

defendant having received the said consideration iri cash executed a

demand promissory note in favour of the plaintiff for the said sum on the

said date agreeing to repay the same with interest at 24% per annum

simple either to the plaintiff or his order on demand.

2. Despite repeated demands made by the plaintiff the defendant

• failed to repay the same. When the plaintiff got issued a legal notice

dated 08.10.2005 demanding the defendant to repay the entire debt with interest, the defendant sent a litigious reply dated 12.10.2005 with all false and untenable allegations. Hence the plaintiff is constrained to file the suit for recovery of the amount with interests and costs. The defendant is an employee and not an agriculturist and is not entitled to the benefits of agricultural debt relief acts like the act 4 Of 38 and act 7 of 77 and the plaintiff is entitled to recover the entire suit amount with subsequent interests and costs.

3. The cause of action for the suit arose on 08.10.2003 when the defendant borrowed the amount as stated and executed the suit promissory note in favour of the plaintiff and failed to repay in spite of repeated oral demands and a written notice and at Machilipatnam where the amount was lent, the document was executed and the parties reside within the jurisdiction of this court.

4. Value of the suit:

Principal Amount lent: Rs. 15,000.OOps.

Interest from the date of the promissory note

At 24 % per annum simple till the date of the

suit (08.10.2006) Rs. 10,800.OOps.

Total Value of the suit Rs.25,800.OOps.

5. The value of the suit for purpose of jurisdiction and the court fee is the same. A court fee of Rs. 1250/- is paid.

6. The plaintiff prays that the suit may be decreed for the suit amount with subsequent interest and costs recoverable from the defendant personally and his family properties and the Hon'ble court may award such other reliefs as the Hon'ble court deems fit in the facts and circumstances of the case.

Be pleased to consider,

Plaintiff

Verification: The contents of the plaint are true to the best of knowledge and I signed this verification on this the 08th day of October 2006.

Plaintiff

WRITTEN STATEMENT

1. The defendant is a colleague of the plaintiff and they are acquainted with each other is correct. The rest of the plaint allegations are absolutely false and are invented and hence specifically denied.

2. The defendant received his salary on the first of October and was never in need of money on 08.10.2003. This defendant never borrowed the pleaded amount or any other amount and never executed the suit promissory note in the circumstances stated in the plaint.

3. The facts are as follows: This defendant as a member of a local chit group bid at a chit auction and received an amount of Rs. 12,000/-(Rupees Twelve Thousands Only) from the unauthorized chit dealer and at that time the plaintiff at the request of the defendant stood as a surety for the defendant. And during that transaction the plaintiff demanded the defendant to sign a promissory note for his security and safety and at that time the defendant signed on the suit promissory note. Hence the suit promissory note is not supported by any consideration. The defendant's chit transaction was settled long time back and the defendant out of confidence did not collect back the promissory note from the plaintiff. Taking advantage of the said promissory note unsupported by consideration, which is lying with the plaintiff, the suit is filed to make a wrongful gain at the expense of the defendant. The defendant is an agriculturist having Ac 01.00 cents of land at Machilipatnam and is therefore an agriculturist. The defendant is a small farmer and is entitled to the benefits of debt relief laws and the suit is not maintainable. The interest claimed is usurious and penal. When the plaintiff issued a notice the defendant sent a reply with all the facts.

4. The Law of limitation bars the suit.

5. The suit may be dismissed with costs.

EVIDENCE:

PW1: Examination in chief: I am the plaintiff. I am a Telugu Teacher in the Z P High School Machilipatnam. I know the defendant. He is a peon -in our school. He gets a Salary of Rs.2500/- per month. On 08-10-2003, the defendant approached me and requested to lend Rs. 15,000/-(Rupees Fifteen Thousands Only) stating that he is in urgent need of money to meet his wife's medical expenses and the educational expenses of his only son who is studying intermediate course and aspiring to pursue Engineering course. In view of the acquaintance I had with him, I lent the said sum to him on the said date. The defendant having received the said consideration in cash executed a demand promissory note in my favour for the said sum on the said date agreeing to repay the same with interest at 24% per annum simple either to me or my order on demand. The said promissory note executed by the defendant is exhibit Al. He failed to repay. I used to demand him but he sued to postpone repayment on one pretext or the other. Then I got issued a legal notice dated 08.10.2005. The office copy of my notice is exhibit A2. The defendant without paying the amount due sent a reply notice dated 12.10.2005. It is exhibit A3. The reply notice allegations are false. The note is not obtained in connection with any chit transaction of the defendant. I paid the consideration under exhibit Al in cash. Entire amount is due. The defendant has no land. He is not a small farmer or an agriculturist. He is liable to pay the entire suit amount with interest and costs. My suit may be decreed with costs.

PW1 - Cross-examination for the defendant; I draw a net salary of Rs. 13,000/- per month. The defendant is an attender in our school. I do not know his exact monthly salary. I did not file his salary certificate. I do not know about any private chit fund being run by the IV class employees of the school. To my knowledge there is no such chit business in school. It is not true to say that a private chit fund is being run in the school and some of the teachers are also members in it. It is not true to say that the defendant as a member of a local chit group bid at the a school members chit auction and received an amount of Rs. 12,000/-(Rupees Twelve Thousands Only) from the unauthorized chit dealer and at that time I at the request of the defendant stood as a surety for the defendant. It is not true to suggest that during that transaction I demanded the defendant to sign a promissory note for my security and safety and at that time the defendant signed on the suit promissory note. It is not true to say that I refused to stand as a surety unless the defendant signed on the promissory note and that therefore the defendant singed on exhibit Al under compelling circumstances. It is not true to say that the suit promissory note is not supported by any consideration. I did not verify the documents filed by the plaintiff. I did not issue rejoinder reply notice. I do not know the name of the wife of the defendant. It is true that the promissory note was not attested. It is true that the contents of exhibit A1 were written by the typist in the office of the school. It is true that in the absence of the Head Master, I act as in charge Head Master and at such times the school typist works under me at such times. It is not true to say that the typist is my supporter and henchman. I do not do money-lending business. I did not withdraw any money from my bank account on the date of exhibit Al. I am having money in the house as I received my salary on 8th October after my return from casual leave. It is not true to say that I have no capacity to lend such huge amount at one time and that the suit promissory note is not supported by consideration. I do not know if the defendant is a member of a joint family consisting of his father and three brothers and his joint family owns five acres of wet land. It is not true to say that I filed the suit to make a wrongful gain and I am not entitled to any decree and my suit is liable to be dismissed with costs.

Re-examination: I also received some DA arrears and other arrears in October 2003.

Re-cross examination: I have not filed my salary slip of that month.

PW2: Examination in chief:

I am working as a typist in the office of the Z P high school of Machilipatnam. I Know the PW1 who is a teacher in our school. I know the defendant who is an attender in our school. On 08-10-2003, the plaintiff lent.to the defendant Rs. 15,000/- (Rupees Fifteen Thousands Only) as he was in urgent need of money to meet his wife's medical expenses and the educational expenses of his only son. The plaintiff gave the said sum to the defendant in my presence. The defendant having received the said consideration in cash executed a demand promissory note in favour of the plaintiff for the said sum on the said date agreeing to repay the same with interest at 24% per annum simple either to PW1 or his order on demand. The said promissory note executed by the defendant is exhibit Al. I had type written the same at the house of the plaintiff. I saw the defendant receiving the consideration and signing the promissory note. After the defendant signed exhibit Al I signed as the scribe.

PW2 (P. R. Ravi) Cross examination for the defendant: In the absence of the head master the PW1 used to act as in charge head master of our school and at such times I used to be under his control. It is not true to say that as I am under the control of the PW1 who is my superior I am deposing incorrectly at his instance. It is not true to say that I complained against the defendant to the head master that the defendant is not sincere and obedient to me and that the head master did not take action on my complaint and that since then I am having enmity with the defendant and that I colluded with the plaintiff to harass the defendant and cause loss to him. I typed the pronote on the type writer in the house of PW1. I used to scribe promissory notes since 21 years of my age till I got the job, as I used to work under my father, who is a document writer. Even now I am writing documents to help my father. I do not know that I cannot work as a document writer, while doing government job.

Re-examination: I have no document writer's licence. I do not collect any fee for writing the documents at the request of my father. Further cross examination: It is not true to say that I am deposing incorrectly to save my job. I do not know about the exchange of notices between the parties.

DW1 - Examination in chief: I am the defendant. I know the plaintiff and the PW2. I never borrowed any amount from the plaintiff and I never executed exhibit Al. I am a member of a local chit group being run by the members of the school and I bid at the chit auction and received an amount of Rs. 12,000/- (Rupees Twelve Thousands Only) from the unauthorized chit dealer in the school and at that time the PW1 at my request stood as a surety for due payment of the amount of instalments due from me to the chit dealers. During that transaction PW1 demanded me to sign on a promissory note for his security and safety and at that time I signed on the suit promissory note. In fact PW1 refused to stand as a surety unless I agreed to sign on the promissory note and therefore I singed on exhibit Al under compelling circumstances. The suit promissory note is not executed by me and is not supported by any consideration. The contents of exhibit Al were type written by the typist working in the office of the school. In the absence of the Head Master, PW1 used to act as in - charge Head Master and at such times the school typist (PW2) used to work under PW1. The typist is the supporter and henchman of PW1. I am having money in the house as I received my salary on 1st October and hence I am not in need of money. PW1 has no capacity to lend such huge amount at one time. I am a member of a joint family consisting of father and three brothers and my joint family owns five acres of wet land. The Title deed book of our land is exhibit B1. The suit is filed to make a wrongful gain and the PW1 is not entitled to any decree and the suit may be dismissed with costs.

DW1 - Cross examination: I am earning a salary of Rs.2000/- per month. The PW1 gets more than Rs. 10,000/- per month. I did not plead that the PW1 has no capacity to lend the suit amount. I did not file any record relating to the chit transaction pleaded by me. I cannot examine any person to show that a private chit was run by the employees of the school. I have no documents to show that I was a member of a chit group and bid at a chit auction and received Rs. 12,000/- and that the plaintiff stood as my surety in that regard. It is not true to say that I have no chit transactions and that the PW1 never stood as a surety for me. The exhibit B1 is in the name of my father. I will not examine him to show that I have got a share in the land. It is not true to say that land shown in exhibit B1 is that of my father and that I do not own any lands. I am not personally cultivating any lands. I have no disputes with PW2. I did not give any written complaint against PW2 and PW2 also did not give any written complaint against me. We are having talking terms. I and PW2 received DA arrears in October 2003. I do not about PW1. It is not true to say that On 08-10-2003 I approached PW1 and requested to lend Rs. 15,000/- (Rupees Fifteen Thousands Only) stating that.I am in urgent need of money to meet my wife's medical expenses and the educational expenses of my only son who is studying intermediate course. It is true that my son is now pursuing Engineering course. It is. not true to say that I having received the said consideration in cash executed the exhibit Al demand promissory note in favour of PW1 for the said sum on the said date agreeing to repay the same with interest at 24% per annum simple either to PW1 or his order on demand. The signature on exhibit Al now shown to me is not my signature. I do not know if in my written statement I have not denied my signature on exhibit Al. It is not true to say that I am deposing incorrectly to avoid my liability and that I am liable to pay the suit amount with subsequent interest and costs. Re-examination: Nil

EXHIBITS

Exhibit Al: Promisory Note: Date: 08.10.2003

On demand, I, R.SOMARAJU, promise to pay to P. Venkataramana or his order a sum of Rs.15,000/- with interest at 24% per annum. I received the consideration in cash today for my family necessities.

Type written by: P R Ravi.

Exhibit A2: (Notice)

Under instructions from my client P. Venkataramana I issue this notice to you (R. Somaraju).

You for your family necessities borrowed an amount of Rs. 15,000/-from my client on 08.10.2003 and executed a demand promissory note for the said sum on the said date agreeing to repay the same to my client or his order on demand. In spite of demands you did not repay and postponed repayment. Hence you are called upon to repay the entire debt with interest and take return of the promissory note after due discharge. On your failure to comply with this notice within one week my client will be constrained to file a suit and recover the amount due with costs. Please pay Rs.100/- to my client towards costs of the registered legal notice.

Date:08.10.2005 Advocate

Exhibit A3: (Reply Notice)

Under instructions from my client, R. Somaraju, I issue this reply notice to your notice issued on behalf of P. Venkataramana.

The allegations in your notice are false and are hence denied. My client was a member of a local chit group and he bid at a chit auction and received an amount of Rs. 12,000/- (Rupees Twelve Thousands Only) from the unauthorized chit dealer of the Z P school and at that time your client at the request of my client stood as a surety for the chit transaction of my client. And during that transaction your client demanded my client to sign a promissory note for your client's security and safety and at that time my client signed on the alleged promissory note. Hence the alleged promissory note is not supported by any consideration. The chit transaction was settled long time back and out of confidence my client did not collect back the promissory note from your client. Taking advantage of the said promissory note unsupported by consideration, which is lying with your client, the impugned notice was got issued by your client to make a wrongful gain. Please advise your client to desist from any unholy action. In case any false claim is made by filing a false suit your client will be mulcted with costs.

Exhibit Bl: (Title deed book in the name of the father of the defendant

for an extent of Ac.5.00 cents of wet land at Machilipatnam.)

S.No. Survey Number. Extent Village Remarks

1. 12/1 5.00 acres Machilipatnam WET

***

PART-'B'

2. What are the methods of alternate dispute resolution? Write an

essay on "settlement of disputes outside the Court" with reference to

Section 89 of the Code of Civil Procedure, 1908?

10 (ten) Marks.

3. (A) It is the quality of evidence that counts and not the quantity.

Which provision of law enacts this rule and what is its purpose and

significance? Explain briefly.

(B) What is meant by proved, disproved and not proved and what is the rule enacted in their definitions and what is its significance.

5 (five) Marks each.

4. Write a brief note on the following:

2 Vz (two & half) Marks each.

(a) Presumptions

(b) Pledge and Quasi Contract

(d) Equitable Mortgage/Mortgage by deposit of title deeds.

5. Explain with illustrations the concepts of set off and counter claim

and distinguish them.

10 (ten) Marks.

6. (A) What is the limitation period for executing a - (i) money

decree, (ii) decree for mandatory injunction and (iii) decree for

perpetual prohibitory injunction?

(B) Name some of the documents, which are compulsorily registrable according to the Transfer of Property Act, 1882 and the Registration Act, 1908 and state within what time a document compulsorily registrable can be presented for registration, from the date of its execution.

5 (five) Marks each.

7. What are the cardinal and other recognized principles governing

the discretionary powers of the court while granting and refusing to grant

temporary injunctions?

10 (ten) Marks.

8. Hear say evidence is not admissible. What are the six important

exceptions to the said rule? Elucidate.

10 (ten) Marks.

9. (A) What are the restrictions placed on the power of a court in

ordering attachment of salary and allowances of a judgment debtor who

is not a Government servant?

(B) What are the properties, which cannot be transferred according to the provisions of the Transfer of Property Act> 1882?

5 (five) Marks each.

10. (A) Explain the doctrine of election. Whether it is enacted in the

Indian Succession Act, 1925 also and if so in what context. Quote the

provisions.

(B) What is an ex parte decree? What are the criteria for setting aside an ex parte decree passed in a suit filed under 0.37 CPC and suits filed under the other provisions of CPC?

5 (five) Marks each.

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