THE CODE OF CIVIL PROCEDURE, 1908-12

ORDER XLII

Appeals from Appellate Decrees

1. Procedure.— The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees.

¹ [2. Power of Court to direct that the appeal be heard on the question formulated by it — At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.

3. Application of rule 14 of Order XLI .—Reference in sub-rule (4) of rule 14 of Order XLI to the Court of first instance shall, in the case of an appeal from an appellate decree or order, be construed as a reference to the Court to which the appeal was preferred from the original decree or order.]

 

ORDER XLIII Appeals from Orders

1. Appeal from orders.— An appeal shall lie from the following orders under the provisions of section 104, namely: —

(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court

² [except where the procedure specified in rule 10A of Order VII has been followed];

³ * * * * *

(c)^. an order under rule 9 of order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;

² * * * * *

(f) an order under rule 21 of Order XI;

² * * * * *

(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;

(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;

1. Ins. by Act 104 of 1976, s. 88 (w.e.f. 1-2-1977).

2. Ins. by Act 104 of 1976, s. 89 (w.e.f. 1-2-1977).

3. Cls. (b), (e), (g), (h), ( m), (o) and (v) omitted by s. 89, ibid, (w.e.f. 1-2-1977).

¹ [ja) an order rejecting an application made under sub-rule ( 1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable;]

(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;

(l) an order under rule 10 of Order XXII giving or refusing to give leave;

² * * * * *

(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

¹ [(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;]

² * * * * *

(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;

(q) an order under rule 2, rule 3 or rule 6 of order (XXVIII);

(r) an order under rule 1, rule 2 ¹[rule 2A], rule 4 or rule 10 of Order XXXIX;

(s) an order under rule 1, or rule 4 of Order XL;

(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;

(u) an order under rule 23 ¹[or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

² * * * * *

(w) an order under rule 4 of Order XLVII granting an application for review.

¹ [1A. Right to challenge non-appealable orders in appeal against decrees.— (1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.

(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.]

2. Procedure.— The rules of Order XLI shall apply, so far as may be, to appeals from orders.

ORDER XLIV

² [Appeals by Indigent Persons]

1. Who may appeal ³[as an indigent person]. — ⁴ [(1)] Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an ⁵[indigent person], subject, in all matters, including the presentation of such application, to the provisions relating to suits by ⁵[indigent persons], in so far as those provisions are applicable.

⁶ * * * * *

 

⁷ * * * * *

 

⁸ [2. Grant of time for payment of court-fee.— Where an application is rejected under rule 1, the Court may, while rejecting the application, allow the applicant to pay the requisite Court-fee, within such time as may be fixed by the Court or extended by it from time to time; and upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance.

1. Ins. by Act 104 of 1976, s. 89 (w.e.f. 1-2-1977).

2. Subs. by s. 90, ibid., for “pauper appeals” (w.e.f. 1-2-1977).

3. Subs. by s. 90, ibid., for “as pauper” (w.e.f 1-2-1977).

4. Rule 1 re-numbered as sub-rule (1) by Act 66 of 1956, s. 14.

5. Subs. by Act 104 of 1976, s. 90, for “pauper” and “paupers” respectively (w.e.f 1-2-1977),

6. Proviso omitted by Act 66 of 1956, s. 14.

7. Sub-rule (2) ins. by s. 14, ibid. and omitted by Act 104 of 1976, s. 90 (w.e.f 1 -2-1977). 8. Subs. by Act 104 of 1976, s. 90, for rule 2 (w.e.f. 1-2-1977).

3. Inquiry as to whether applicant is an indigent person.— (1) Where an applicant, referred to in rule 1, was allowed to sue or appeal as an indigent person in the Court from whose decree the appeal is preferred, no further inquiry in respect of the question whether or not he is an indigent person shall be necessary if the applicant has made an affidavit stating that he has not ceased to be an indigent person since the date of the decree appealed from; but if the Government Pleader or the respondent disputes the truth of the statement made in such affidavit, an inquiry into the question aforesaid shall be held by the Appellate Court, or, under the orders of the Appellate Court, by an officer of that Court.

(2) Where the applicant, referred to in rule 11, is alleged to have become an indigent person since the date of the decree appealed from, the inquiry into the question whether or not he is an indigent person shall be made by the Appellate Court or, under the orders of the Appellate Court, by an officer of that Court unless the Appellate Court considers it necessary in the circumstances of the case that the inquiry should be held by the Court from whose decision the appeal is preferred.]

 

ORDER XLV

Appeals to the ¹[Supreme Court]

1. “Decree” defined. —In this Order, unless there is something repugnant in the subject or context, the expression “decree” shall include a final order.

2. Application to Court whose decree complained of. —²[(1)] Whoever desires to appeal ³[the Supreme Court] shall apply by petition to the Court whose decree is complained of.

⁴ [(2) Every petition under sub-rule (1) shall be heard as expeditiously as possible and endeavour shall be made to conclude the disposal of the petition within sixty days from the date on which the petition is presented to the Court under sub-rule (1).]

3. Certificate as to value or fitness. —⁵[(1) Every petition shall state the grounds of appeal and pray for a certificate—

(i) that the case involves a substantial question of law of general importance, and

(ii) that in the opinion of the Court the said question needs to be decided by the Supreme Court.]

(2) Upon receipt of such petition, the Court shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted.

4. [Consolidation of suits.]Rep. by the Code of Civil Procedure (Amendment) Act, 1973 (49of 1973), s. 4 (w.e.f. 1-2-1977).

5. [Remission of dispute to Court of first instance.]Rep. by s. 4, ibid. (w.e.f. 1-2-1977).

6. Effect of refusal of certificate.— Where such certificate is refused, the petition shall be dismissed.

7. Security and deposit required on grant of certificate.— (1) Where the certificate is granted, the applicant shall, within ⁶[ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow;] from the date of the decree complained of, or within six weeks from the date of the grant of the certificate whichever is the later date,—

(a) furnish security ⁷[in cash or in Government securities] for the costs of the respondent, and

(b) deposit the amount required to defray the expense of translating, transcribing indexing ⁸[printing,] and transmitting to ³[the Supreme Court] a correct copy of the whole record of the suit, except—

(1) formal documents directed to be excluded by any ⁹[Rule of the Supreme Court] in force for the time being;

(2) papers which the parties agree to exclude;

1. Subs. by the A.O. 1950, for “King-in-Council”.

2. Rule 2 re-numbered as sub-rule (1) of that rule by Act 104 of 1976, s. 91 (w.e.f. 1-2-1977).

3. Subs. by the A.O. 1950, for "His Majesty in Council". 4. Ins. by Act 104 of 1976, s. 91 (w.e.f. 1-2-1977).

5. Subs. by Act 49 of 1973, s. 4, for sub-rule (1).

6. Subs. by Act 26 of 1920, s. 3, for “six months”.

7. Ins. by s. 3, ibid.

8. Ins. by the A.O. 1950.

9. Subs., ibid., for “order of His Majesty in Council”.

(3) accounts, or portions of accounts, which the officer empowered by the Court for that purpose considers unnecessary, and which the parties have not specifically asked to be included; and

(4) such other documents as the High Court may direct to be excluded:

¹ [Provided that the Court at the time of granting the certificate may, after hearing any opposite party who appears, order on the ground of special hardship that some other form of security may be furnished:

Provided further, that no adjournment shall be granted to an opposite party to contest the nature of such security.]

² * * * * *

8. Admission of appeal and procedure thereon.— Where such security has been furnished and deposit made to the satisfaction of the Court, the court shall—

(a) declare the appeal admitted,

(b) give notice thereof to the respondent,

(c) transmit to ³[the Supreme Court] under the seal of the Court a correct copy of the said record, except as aforesaid, and

(d) give to either party one or more authenticated copies of any of the papers in the suit on his applying therefore and paying the reasonable expenses incurred in preparing them.

9. Revocation of acceptance of security.— At any time before the admission of the appeal the Court may, upon cause shown, revoke the acceptance of any such security, and make further directions thereon.

⁴ [9A. Power to dispense with notices in case of deceased parties.— Nothing in these rules requiring any notice to be served on or given to an opposite party or respondent shall be deemed to require any notice to be served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree is complained of or at any proceedings subsequent to the decree of that Court:

Provided that notices under sub-rule (2) of rule 3 and under rule 8 shall be given by affixing the same in some conspicuous place in the court-house of the Judge of the district in which the suit was originally brought, and by publication in such newspapers as the Court may direct.]

10. Power to order further security or payment. —Where at any time after the admission of an appeal but before the transmission of the copy of the record, except as aforesaid, to ³[the Supreme Court], such security appears inadequate,

or further payment is required for the purpose of translating, transcribing, printing, indexing or transmitting the copy of the record, except as aforesaid,

the Court may order the appellant to furnish, within a time to be fixed by the Court, other and sufficient security, or to make, within like time, the required payment.

11. Effect of failure to comply with order.— Where the appellant fails to comply with such order, the proceedings shall be stayed,

and the appeal shall not proceed without an order in this behalf of, ³[the Supreme Court], and in the meantime execution of the decree appealed from shall not be stayed.

1. Added by Act 26 of 1920, s. 3.

2. Sub-rule (2) omitted by the A.O. 1950.

3. Subs. by the A.O. 1950, for “his Majesty in Council”.

4. Ins. by Act 26 of 1920, s. 4.

12. Refund of balance deposit. —When the copy of the record, except as aforesaid, has been transmitted to ¹[the Supreme Court], the appellant may obtain a refund of the balance (if any) of the amount which he has deposited under rule 7.

13. Powers of Court pending appeal .—(1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs.

(2) The Court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to the Court,—

(a) impound any movable property in dispute or any part thereof, or

(b) allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of any order which ¹[the Supreme Court] may make on the appeal, or

(c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the decree appealed from, or of ²[any decree or order] which ¹[the Supreme Court] may make on the appeal, or

(d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise.

14. Increase of security found inadequate .—(1) Where at any time during the pendency of the appeal the security furnished by either party appears inadequate, the Court may, on the application of the other party, require further security.

(2) In default of such further security being furnished as required by the Court,—

(a) if the original security was furnished by the appellant, the Court may, on the application of the respondent, execute the decree, appealed from as if the appellant had furnished no such security:

(b) if the original security was furnished by the respondent, the Court shall, so far as may be practicable, stay the further execution of the decree, and restore the parties to the position in which they respectively were when the security which appears inadequate was furnished, or give such direction respecting the subject-matter of the appeal as it thinks fit.

15. Procedure to enforce orders of the Supreme Court .—(1) Whoever desires to obtain execution of ²[any decree or order] of ¹[the Supreme Court] shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to ³[the Supreme Court] was preferred.

(2) Such Court shall transmit the ⁴[decree or order] of ¹[the Supreme Court] to the Court which passed the first decree appealed from, or to such other Court as ¹[the Supreme Court] by such ⁴[decree or order] may direct and shall (upon the application of either party) give such directions as may be required for the execution of the same; and the Court to which the said ⁴[decree or order] is so transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of its original decrees.

⁵ * * * * *

1. Subs., by the A.O. 1950, for “His Majesty in Council”.

2. Subs., ibid., for “any order”.

3. Subs., ibid., for “His Majesty”.

4. Subs., ibid., for “order”.

5. Sub-rule (3) omitted by the A.O. 1950.

¹ [(4) ²[Unless the Supreme Court otherwise directs, no decree or order of that Court] shall be inoperative on the ground that no notice has been served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree was complained of or at any proceedings subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before the death took place.]

16. Appeal from order relating to execution.— The orders made by the Court which executes the ³[decree or order] of ⁴[the Supreme Court], relating to such execution, shall be appealable in the same manner and subject to the same rules as the orders of such Court relating to the execution of its own decrees.

17. [Appeals to Federal Court.] Rep. by the Federal Act, 1941 (21 of 1941), s. 2.

STATE AMENDMENT

Uttar Pradesh

Amendment of Order XLV. In the First Schedule, in Order XLV, in rule 2, after sub- rule (2), the following sub-rule shall be inserted, namely :—

“(3) Notwithstanding anything contained in sub-rule (1), whoever desires to appeal to the Supreme Court, may apply orally to the Court whose decree is to be complained of, immediately before or

after the pronouncement of the judgment by the Court, for a certificate contemplated in sub-rule (1) of rule 3, and the Court may either grantor refuse the certificate, or direct the applicant to file a petition as required by sub-rule (1) ;

Provided that if an oral application is entertained and rejected, no written petition under sub-rule (1) shall lie.”

[Vide Uttar Pradesh Act 56 of 1957, s. 14]

ORDER XLVI REFERENCE

1. Reference of question to High Court.— Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court.

2. Court may pass decree contingent upon decision of High Court.— The Court may either stay the proceedings or proceed in the case notwithstanding such reference, and may pass a decree or make an order contingent upon the decision of the High Court on the point referred:

But no decree or order shall be executed in any case in which such reference is made until the receipt of a copy of the judgment of the High Court upon the reference.

3. Judgment of High Court to be transmitted and case disposed of accordingly.— The High Court, after hearing the parties if they appear and desire to be heard, shall decide the point so referred,

1. Ins. by Act 26 of 1920, s. 5.

2. Subs. by the A.O. 1950, for “Unless His Majesty in Council is pleased otherwise to direct, no order of His Majesty in Council”.

3. Subs., ibid., for “order”.

4. Subs., ibid., for “His Majesty in Council”.

and shall transmit a copy of its judgment, under the signature of the Registrar, to the Court by which the reference was made; and such Court shall, on the receipt thereof, proceed to dispose of the case in conformity with the decision of the High Court.

4. Cost of reference to High Court.— The costs (if any) consequent on a reference for the decision of the High Court shall be costs in the case.

¹ [4A. Reference to High Court under proviso to section 113.— The provisions of rules 2, 3 and 4 shall apply to any reference by the Court under the proviso to section 113 as they apply to a reference under rule 1; and]

5. Power to alter, etc., decree of Court making reference.— Where a case is referred to the High Court under rule ⁵[or under the proviso to section 113], the High Court may return the case for amendment, and may alter, cancel or set aside any decree or order which the Court making the reference has passed or made in the case out of which the reference arose, and make such order as it thinks fit.

6. Power to refer to High Court questions as to jurisdiction in small causes.— (1) Where at any time before judgment a Court in which a suit has been instituted doubts whether the suit is cognizable by a Court of Small Causes or is not so cognizable, it may submit the record to the High Court with a statement of its reasons for the doubt as to the nature of the suit.

(2) On receiving the record and statement, the High Court may order the Court either to proceed with the suit or to return the plaint for presentation to such other Court as it may in its order declare to be competent to take cognizance of the suit.

7. Power to District Court to submit for revision proceeding had under mistake as to jurisdiction in small causes.— (1) Where it appears to a District Court that a Court subordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Court of Small Causes or not to be so cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested, the District Court may, and if required by a party shall, submit the record to the High Court with a statement of its reasons for considering the opinion of the Subordinate Court with respect to the nature of the suit to be erroneous.

(2) On receiving the record and statement the High Court may make such order in the case as it thinks fit.

(3) With respect to any proceedings subsequent to decree in any case submitted to the High Court under this rule, the High Court may make such order as in the circumstance appears to it to be just and proper.

(4) A Court subordinate to a District Court shall comply with any requisition which the District Court may make for any record or information for the purposes of this rule.

ORDER XLVII REVIEW

1. Application for review of judgment.— (1) Any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

1. Ins. by Act 24 of 1951, s. 2.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review.

¹ [Explanation.—The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.]

2. [To whom applications for review may be made . ]—Rep. by the Code of Civil Procedure

(Amendment) Act, 1956 (66 of 1956) s. 14.

3. Form of applications for review.— The provisions as to the form of preferring appeals shall apply, mutatis mutandis, to applications for review.

4. Application where rejected.— (1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application.

(2) Application where granted.—Where the Court is of opinion that the application for review should be granted, it shall grant the same:

Provided that—

(a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and

(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.

5. Application for review in Court consisting of two or more Judges.— Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order a review of which is applied for, continues or continued attached to the Court at the time when the application for a review is presented, and is not or not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same.

6. Application where rejected.— (1) Where the application for a review is heard by more than one Judge and the Court is equally divided, the application shall be rejected.

(2) Where there is a majority, the decision shall be according to the opinion of the majority.

7. Order of rejection not appealable. Objections to order granting application.—² [(1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit.]

(2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing which such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.

(3) No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party.

8. Registry of application granted, and order for re-hearings.— When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.

1. Ins. by Act 104 of 1976, s. 92 (w.e.f. 1-2-1977).

2. Subs. by Act 104 of 1976, s. 92, for sub-rule (1) (w.e.f. 1-2-1977).

9. Bar of certain application.— No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained.

ORDER XLVIII MISCELLANEOUS

1. Process to be served at expense of party issuing.—( 1 ) Every process issued under this Code shall be served at the expense of the party on whose behalf it is issued, unless the Court^- otherwise directs.

(2) Costs of service.—The court-fee chargeable for such service shall be paid within a time to be fixed-before the process is issued.

2. Orders and notices how served.—All orders, notices and other documents required by this Code to be given to or served on any person shall be served in the manner provided for the service of summons.

3. Use of forms in appendices.— The Forms given in the appendices, with such variation as the circumstances or each case may require, shall be used for the purposes therein mentioned.

ORDER XLIX Chartered High Courts

1. Who may serve processes of High Court.— Notice to produce documents, summonses to witnesses, and every other judical process, issued in the exercise of the original civil jurisdiction of the High Court, and of its matrimonial, testamentary and intestate jurisdictions, except summonses to defendants, writs of execution and notices to respondents may be served by the attorneys in the suits, or by persons employed by them, or by such other persons as the High Court, by any rule or order, directs.

2. Saving in respect of Chartered High Courts.— Nothing in this Schedule shall be deemed to limit or otherwise affect any rules in force at the commencement of this Code for the taking of evidence or the recording of judgments and orders by a Chartered High Court.

3. Application of rules.— The following rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:—

(1) rule 10 and rule 11, clauses (b) and (c), of Order VII;

(2) rule 3 of Order X;

(3) rule 2 of Order XVI;

(4) rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16 (so far as relates to the manner of taking evidence) of Order XVIII;

(5) rule 1 to 8 of Order XX; and

(6) rule 7 of Order XXXIII (so far as relates to the making of a memorandum);

and rule 35 of Order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction.

ORDER L Provincial.SmallCause Courts

1. Provincial Small Cause Courts.— The provisions hereinafter specified shall not extend to Court constituted under the Provincial Small Cause Courts Act 1887 (9 of 1887) ¹[or under the Berar Small Cause Courts Law, 1905] or to Courts exercising the jurisdiction of a Court of Small Causes ²[under the

1. Ins. by Act 4 of 1941, s. 2, and the Third Sch.

2. Subs. by s. 2, and the Third Sch. ibid., for “under that Act”.

said Act or Law] ¹[or to Courts in ²[any part of India to which the said Act does not extend] exercising a corresponding jurisdiction that is to say—

(a) so much of this Schedule as relates to—

(i) suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits;

(ii) the execution of decrees against immovable property or the interest of a partner in partnership property;

(iii) the settlement of issues; and

(b) the following rules and orders:— Order II, rule 1 (frame of suit);

Order X, rule 3 (record of examination of parties);

Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment;

Order XVIII, rule 5 to 12 (evidence); Order XLI, to XLV (appeals);

Order XLVII, rules 2, 3, 5, 6, 7 (review); Order LI.

STATE AMENDMENT

Uttar Pradesh

Amendment of the First Schedule.— In the First Schedule to the said Code, in the Order L, in rule 1, in clause (b) for the words and figures “Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment”, the words as figures “Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment and rule 5” shall be substituted.

[Vide Uttar Pradesh Act 19 of 1973, s. 3]

ORDER LI

Presidency Small Cause Courts

1. Presidency Small Cause Courts .—Save as provided in rules 22 and 23 of Order V, rules 4 and 7 of Order XXI, and rule 4 of Order XXVI, and by the Presidency Small Cause Courts Act, 1882 (15 of 1882), this Schedule shall not extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay.

1. Ins. by Act 2 of 1951, s. 18.

2. Subs. by the Adaptation of Laws (No. 2) Order, 1956 , for “Part B States”.

APPENDIX A PLEADINGS

(1) Titles of Suits

 

In the Court of . ...............................................................................................

A.B. (add description and residence )....................................................................................................................... Plaintiff

against

C.D. (add description and residence).................................................................................................................... Defendant

(2) Description of parties in particular Cases

¹ [The Union of India or the State of............................... , as the case may be.]

The Advocate General of The Collector of

The State of

__________________

The A. B. Company, Limited having its registered office at

A. B., a public officer of the C. D. Company.

A. B. (add description and residence) , on behalf of himself and all other creditors of C. D. late of

(add description and residence)

A. B. (add description and residence) , on behalf of himself and all other holders of debentures issued by the Company limited.

The Official Receiver.

A. B. a minor (add description and residence),by C. D. [or by the Court of Wards], his next friend.

A. B. (add description and residence), a person of unsound mind [or of weak mind], by. C. D. his next friend.

A. B. a firm carrying on business in partnership at

A. (add description and residence) , by his constituted attorney C. D. (add description and residence).

A. B. (add description and residence ), Shebait of Thakur.

A. B. (add description and residence ), executor of C. D. deceased.

A. B. (add description and residence ), heir of C. D. deceased.

1. Subs. by the A. O. 1950, for “The Secretary of State or the Federation of India or the Province of................................................................................................................................................................... , as the case may

be”.

(3) Plaints

No. 1

Money lent

(Title)

A. B., the above named plaintiff, states as follows:—

1. On the………………………………day of………..20.................... , he lent the defendant

……..rupees repayable on the………………………day of…………………………………..

2. The defendant has not paid the same, except…………..rupees paid on the day

of…………20…………..

[ If the plaintiff claims exemption from any law of limitation, say :—]

3. The plaintiff was a minor [or insane] from the…………………..day of till

the…………….day of………………….. .

4. [ Facts showing when the cause of action arose and that the Court has jurisdiction .]

5. The Value of the subject-matter of the suit for the purpose of jurisdiction is rupees and for

the purpose of court-fees is…........... rupees.

6. The plaintiff claims…………rupees, with interest at………………per cent. from the……day of

………….20………….

No. 2

Money overpaid

(Title)

A. B., the above named plaintiff, states as follows:—

1. On the………………day of………….…20……, the plaintiff agreed to buy and the defendant agreed to sell…………..bars of silver at annas per tola of fine silver.

2. The plaintiff procured the said bars to be assayed by E.F, who was paid by the defendant for such assay, and E.F declared each of the bars to contain 1,500 tolas of fine silver, and the plaintiff accordingly the defendant rupees.

3. Each of the said bars contained only 1,200 tolas of fine silver, of which fact the plaintiff was ignorant when he made the payment.

4. The defendant has not repaid the sum so overpaid. [ As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 3

Goods sold at a fixed price and delivered

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the………………day of…………20……., E. F. sold and delivered to the defendant [one hundred barrels of flour, or the goods mentioned in the schedule hereto annexed. or sundry goods.]

2. The defendant promised to pay………….. rupees for the said goods on delivery [or on the………

day of............... some day before the plaint was filed] .

3. He has not paid the same.

4. E. F. died on the……………day of.....20………By his last will he appointed his brother, the plaintiff, his executor.

[As in paras 4 and 5 of Form No. 1,]

7. The plaintiff as executor of E.F. claims [ Relief Claimed].

No. 4

Goods sold at a reasonable price and delivered

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the…………..day of…………..……20………, plaintiff sold and delivered to the defendant [sundry articles of house-furniture], but no express agreement was made as to the price.

2. The goods were reasonably worth................ rupees.

3. The defendant has not paid the money.

[As in paras 4 and 5 of Form No. 1, and relief claimed]

No. 5

Goods made at dependant’s request, and not accepted

(Title)

A. B ., the above named plaintiff, states as follows:—

1. On the………….day of………….…20……….., E.F. agreed with the plaintiff that the plaintiff should make for him [ six tables and fifty chairs] and that E.F should pay for the goods on delivery rupees.

2. The plaintiff made the goods, and on the…………….day of……………20 , offered to

deliver them to E.F., and has ever since been ready and willing so to do.

3. E.F. has not accepted the goods or paid for them.

[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]

No. 6

Deficiency upon a re-sale [goods sold at auction]

(Title)

A. B ., the above named plaintiff, states as follows:—

1. On the………….day of………….…20……….., the plaintiff put up at auction sundry [goods], subject to the condition that all goods not paid for and removed by the purchaser within [ten days] after the sale should be re-sold by auction on his account, of which condition the defendant had notice.

2. The defendant purchased [one crate of crockery] at the auction at the price of…… rupees.

3. The plaintiff was ready and willing to deliver the goods to the defendant on the date of the sale and for [ten days] after.

4. The defenant did not take away the goods purchased by him, nor pay for them within [ten days] after the sale, nor afterwards.

5. On the……………day of…………20……, the plaintiff re-sold the [ crate of crockery], on account of the defendant, by public auction, for rupees.

6. The expenses attendant upon such re-sale amounted to… rupees.

7. The defendant has not paid the deficiency thus arising, amounting to rupees. [ As in paras 4 and 5 of Form No. I, and Relief claimed.]

No. 7

Services at a reasonable rate

(Title)

A. B., the above named plaintiff, states as follows:—

1. Between the……………. day of…………….……20………. , and the……… day of…………

……20……at................. , plaintiff [ executed sundry drawings, designs and diagrams] for the defendant,

at his request; but no express agreement was made as to the sum to be paid for such services.

2. The services were reasonably worth…...... rupees.

3. The defendant has not paid the money.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 8

Services and materials at a reasonable cost

( Title)

A. B., the above named plaintiff, states as follows:—

1. On the……………day of……………..…20………, at……………. the plaintiff built a house [known as No. ………………, in…..], and furnished the materials therefor, for the defendant, at his request, but no express agreement was made as to the amount to be paid for such work and materials.

2. The work done and materials supplied were reasonably worth…… rupees.

3. The defendant has not paid the money.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 9

Use and Occupation

(Title)

A. B., the above-named plaintiff, executor of the will of X. Y., deceased, states as follows:—

1. That the defendant occupied the [house No……....,................ Street], by permission of the said

X.Y, from the…….day of………………..…20…............., until the day of……………20.…., and no agreement was made as to payment for the use of the said premises.

2. That the use of the said premises for the said period was reasonably worth rupees.

3. The defendant has not paid the money. [ As in paras 4 and 5 of Form No. I.]

4. The plaintiff as executor of X Y, claims [relief claimed] .

No. 10

Onanaward

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the…….day of……….…20…, the plaintiff and defendant, having a difference between them concerning [a demand of the plaintiff for the price of ten barrels of oil which the defendant refused to pay]; agreed in writing to submit the difference to the arbitration of E. F and G. H. and the original document is annexed hereto.

2. On the…………. ….day of……………………20 , the arbitrators awarded that the defendant

should [pay the plaintiff rupees].

3. The defendant has not paid the money.

[As in paras 4 and 5 of Form No. 1 and relief claimed.]

No. 11

On a foreign judgment

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the…………day of…………20……., at…….in the State [or Kingdom] of….., the….. Court of that State [or Kingdom,] in a suit therein pending between the plaintiff and the defendant, duly adjudged that the defendant should pay to the plaintiff rupees, with interest from

the said date.

2. The defendant has not paid the money.

[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]

No. 12

Against surety for payment of rent

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the………..day of……………20..., E. F. hired from the plaintiff for the term of years, the

[house No……………., ………………street], at the annual rent of.......... rupees, payable [monthly].

2. The defendant agreed, in consideration of the letting of the premises to E.F, to gurantee the punctual payment of the rent.

3. The rent for the month of ……….20……….., amounting to… rupees, has not

been paid.

[ If, by the terms of the agreement, notice is required to be given to the surety, add: —]

4. On the………………….day of…………..19…..... , the plaintiff gave notice to the defendant of the

non-payment of the rent, and demanded payment thereof.

5. The defendant has not paid the same.

[As in paras. 4 and 5 of Form No. I, and relief claimed.]

No. 13

Breach of agreement to purchase land

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the…………….day of………20...... , the plaintiff and defendant entered into an agreement, and

the Original document is hereto annexed.

[Or, on the…………day of………………20 , the plaintiff and defendant mutually agreed that

the plaintiff should sell to the defendant and that the defendant should purchase from the plaintiff forty bighas of land in the village of……….for rupees.]

2. On the…………. day of………….……20..….., the plaintiff, being then the absolute owner of the property [and the same being free from all incumbrances, as was made to appear to the defendant], tendered to the defendant a sufficient instrument of transfer of the same [ or, was ready and willing, and is still ready and willing, and offered, to transfer the same to the defendant by a sufficient instrument] on the payment by the defendant of the money agreed upon.

3. The defendant has not paid the money.

[As in paras. 4 and 5 of Form No. I, and relief claimed.]

No. 14

Not delivering goods sold

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the……………day of…………20….., the plaintiff and defendant mutually agreed that the defendant should deliver [one hundred barrels of flour] to the plaintiff on the… day

of……........…20..…..., and that the plaintiff should pay there for............. rupees on delivery.

2. On the [said] day the plaintiff was ready and willing, and offered, to pay the defendant the said sum upon delivery of the goods.

3. The defendant has not delivered the goods, and the plaintiff has been deprived of the profits which would have accrued to him from such delivery.

[As in paras. 4 and 5 of Form No. 1, and relief claimed.]

No. 15

Wrongful Dismissal

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the……………day of…………20...….., the plaintiff and defendant mutually agreed that the plaintiff should serve the defendant as [an accountant,or in the capacity of foreman, or as the case may be] , and that the defendant should employ the plaintiff as such for the term of [one year] and pay him for his services rupees [monthly].

2. On the………….. day of……….……20....... , the plaintiff entered upon the service of the defendant

and has ever since been, and still is, ready and willing to continue in such service during the remainder of the said year whereof the defendant always has had notice.

3. On the…….day of………..……20...….., the defendant wrongfully discharged the plaintiff, and refused to permit him to serve as aforesaid, or to pay him for his services.

[As in paras. 4 and 5 of Form No. 1, and relief claimed.]

No. 16

Breach of contract to serve

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the………day of……….……20……, the plaintiff and defendant mutually agreed that the plaintiff should employ the defendant at as [annual] salary of…..rupees, and that the defendant should serve the plaintiff as [an artist] for the term of [one year].

2. The plaintiff has always been ready and willing to perform his part of the agreement [and on the day of…….…….20 , offered so to do].

3. The defendant (entered upon) the service of the plaintiff on the above-mentioned day, but afterwards, on the……….day of……….……20 , he refused to serve the plaintiff as aforesaid.

[As in paras. 4 and 5 of Form No. 1, and relief claimed.]

No. 17

Against a builder for defective workmanship

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the………….day of……….……20….., the plaintiff and defendant entered into an agreement, and the original document is hereto annexed. [ Or state the tenor of the contract.]

[2. The plaintiff duly performed all the conditions of the agreement on his part.]

3. The defendant [built the house referred to in the agreement in a bad and unworkman like manner]. [ As in paras. 4 and 5 of Form No. 1, and Relief claimed.]

No. 18

On a bond for the fidelity of a clerk

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the………day of……..……20............ , the plaintiff took E.F. into his employment as a clerk.

2. In consideration thereof, on the………day of…….……20.......... , the defendant agreed with plaintiff

that if E.F. should not faithfully perform his duties as a clerk to the plaintiff, or should fail to account to the plaintiff for all monies, evidences of debt or other property received by him for the use of the plaintiff, the defendant would pay to the plaintiff whatever loss he might sustain by reason thereof, not exceeding…rupees.

[Or, 2. In consideration thereof, the defendant by his bond of the same date bound himself to pay the plaintiff the penal sum of………rupees, subjects to the condition that if E.F. should faithfully perform his duties as clerk and cashier to the plaintiff and should justly account to the plaintiff for all monies, evidences of debt or other property which should be at any time held by him in trust for the plaintiff, the bond should be void.]

[Or 2. In consideration thereof, on the same date the defendant executed a bond in favour of the plaintiff, and the original document is hereto annexed.]

3. Between the………..day of………..…20...….., and the…………………..day of ………20. ,

E.F. received money and other property, amounting to the value of……….rupees, for the use of the plaintiff, for which sum he has not accounted to him, and the same still remains due and unpaid.

[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]

No. 19

By tenant against landlord, with special damage

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the……day of………20...... , the defendant, by a registered instrument, let to the plaintiff [the

house No……..Street] for the term of……..years, contracting with the plaintiff, that he, the plaintiff, and his legal representatives should quietly enjoy possession thereof for the said term.

2. All conditions were fulfilled and all things happened necessary to entitle the plaintiff to maintain this suit.

3. On the…………day of………….20....... , during the said term, E.F. who was the lawful owner of

the said house, lawfully evicted the plaintiff therefrom, and still withholds the possession thereof from him.

4. The plaintiff was thereby [prevented from continuing the business of a tailor at the said place, was compelled to expend rupees in moving, and lost the custom of G.H. and I.J by such removal].

[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]

No. 20

On an agreement of indemnity

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the..............day of.......................20. , the plaintiff and defendant, being partners in trade

under the style of A. B. and C.D., dissolved the partnership, and mutually agreed that the defendant should take and keep all the partnership property, pay all debts of the firm and indemnify the plaintiff against all claims that might be made upon him on account of any indebtedness of the firm.

2. The plaintiff duly performed all the conditions of the agreement on his part.

3. On the.............. day of.....................20....….., [a judgment was recovered against the plaintiff and defendant by E.F., in the High Court of Judicature at , upon a debt due from the firm to E.F.,

and on the day of.................20.….,] the plaintiff paid. rupees [in satisfaction of the same].

4. The defendant has not paid the same to the plaintiff. [ As in paras. 4 and 5 of Form No. 1, and Relief claimed.]

No. 21

Procuring property by fraud

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the...............day of ..................20.…., the defendant, for the purpose of inducing the plaintiff to sell him certain goods, represented to the plaintiff that [he, the defendant, was solvent, and worth. rupees over all his liabilities].

2. The plaintiff was thereby induced to sell [and deliver] to the defendant, [dry goods] of the value of rupees.

3. The said representations were false [ or state the particular falsehoods] and were then known by the defendant to be so.

4. The defendant has not paid for the goods, [ Or, if the goods were not delivered.] The plaintiff, in preparing and shipping the goods and procuring their restoration, expended rupees.

[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]

No. 22

Fraudulently procuring credit to be given to another person

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the..........day of.................20.....…., the defendant, represented to the plaintiff that E.F., was solvent and in good credit, and worth................rupees over all his liabilities [or that E.F, then held a responsible

situation and was in good circumstances, and might safely be trusted with goods on credit].

2. The plaintiff was thereby induced to sell to E.F., (rice) of the value of........ rupees [on. months

credit].

3. The said representations were false and were then known by the defendant to be so, and were made by him with intent to deceive and defraud the plaintiff [or to deceive and injure the plaintiff].

4. E.F, [did not pay for the said goods at the expiration of the credit aforesaid, or] has not paid for the said rice, and the plaintiff has wholly lost the same.

[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]

No. 23

Polluting the water under the plaintiff's land

(Title)

A. B., the above-named plaintiff, states as follows:—

1. The plaintiff is, and at all the times hereinafter mentioned was, possessed of certain lands called..........and situate in. and of a well therein, and of water in the well, and was entitled to the

use and benefit of the well and of the water therein, and to have certain springs and streams of water which flowed and ran into the well to supply the same to flow or run without being fouled or polluted.

2. On the........... day of ............20.........., the defendant wrongfully fouled and polluted the well and the water therein and the springs and streams of water which flowed into the well.

3. In consequence the water in the well became impure and unfit for domestic and other necessary purposes, and the plaintiff and his family are deprived of the use and benefit of the well and water.

[As in paras. 4 and 5 of Form No. 1, and relief claimed.]

No. 24

Carrying on a noxious manufacture

(Title)

A. B., the above-named plaintiff, states as follows:—

1. The plaintiff is, and at all the times hereinafter mentioned was, possessed of certain lands called..........situate in...................

2. Ever since the.................. day of....................20....., the defendant has wrongfully caused to issue from certain smelting works carried on by the defendant large quantities of offensive and unwholesome smoke and other vapours and noxious matter, which spread themselves over and upon the said lands, and corrupted the air, and settled on the surface of the lands.

3. Thereby the trees, hedges, herbage and crops of the plaintiff growing on the lands were damaged and deteriorated in value, and the cattle and live-stocks of the plaintiff on the lands became unhealthy, and many of them were poisoned and died.

4. The plaintiff was unable to graze the lands with cattle and sheep as he otherwise might have done, and was obliged to remove his cattle, sheep and farming stock therefrom, and has been prevented from having so beneficial and healthy a use and occupation of the lands as he otherwise would have had.

[As in paras. 4 and 5 of Form No. 1, and relief claimed.]

No. 25

Obstructing a right of way

(Title)

A. B., the above-named plaintiff, states as follows:—

1. The plaintiff is, and at the time hereinafter mentioned was, possessed of [a house in the village of ].

2. He was entitled to a right of way from the [house] over a certain field to a public highway and back again from the highway over the field to the house, for himself and his servants [with vehicles, or on foot] at all times of the year.

3. On the................day of.......................20. , defendant wrongfully obstructed the said way,

so that the plaintiff could not pass [with vehicles, or on foot, or in any manner] along the way [and has ever since wrongfully obstructed the same].

4. (State special damage, if any).

[As in paras. 4 and 5 of Form No. 1, and relief claimed.]

No. 26

Obstructing a highway

(Title)

1. The defendant wrongfully dug a trench and heaped up earth and stones in the public highway leading from.................. to. so as to obstruct it.

2. Thereby the plaintiff, while lawfully passing along the said highway, fell over the said earth and stones, [or into the said trench] and broke his arm, and suffered great pain, and was prevented from attending to his business for a long time, and incurred expense for medical attendance.

[As in paras. 4 and 5 of Form No. 1, and relief claimed.]

No. 27

Diverting a water-course

(Title)

A . B., the above-named plaintiff, states as follows:—

1. The plaintiff is, and at the time hereinafter mentioned was, possessed of a mill situated on a [stream] known as the......... , in the village of........... , district of..........

2. By reason of such possession the plaintiff was entitled to the flow of the stream for working the mill.

3. On the....................... day of................20..... , the defendant, by cutting the bank of the stream,

wrongfully diverted the water thereof, so that less water ran into the plaintiff’s mill.

4. By reason thereof the plaintiff has been unable to grind more than....... sacks per day, whereas, before the said diversion of water, he was able to grind sacks per day.

[As in paras. 4 and 5 of Form No. 1, and relief claimed.]

No. 28

Obstructing a right to use water for irrigation

(Title)

A. B., the above-named plaintiff, states as follows:—

1. The plaintiff is, and was at the times hereinafter mentioned was, possessed of certain lands situate, etc., and entitled to take and use a portion of the water of a certain stream for irrigating the said lands.

2. On the.................day of.......................20.........., the defendant prevented the plaintiff from taking and using the said portion of the said water as aforesaid, by wrongfully obstructing and diverting the said stream.

[As in paras. 4 and 5 of Form No. 1, and relief claimed.]

No. 29

Injuries caused by negligence on a railroad

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the............ day of.............20........., the defendants were common carriers of passengers by railway between....... ...... and ...................

2. On that day the plaintiff was a passenger in one of the carriages of the defendants on the said railway.

3. While he was such passenger, at............... [or near the station of................. or between the

stations of.................... and.................. ], a collision occurred on the said railway caused by the negligence and

unskilfulness of the defendants’ servants, whereby the plaintiff was much injured [having his leg broken, his head cut, etc., and state the special damage, if any, as], and incurred expense for medical attendance and is permanently disabled from carrying on his former business as [a salesman].

[As in paras. 4 and 5 of Form No. 1, and relief claimed.]

[Or thus:—2. On that day the defendants by their servants so negligently and unskillfully drove and managed an engine and a train of carriages attached thereto upon and along the defendant’s railway which the plaintiff was then lawfully crossing that the said engine and train were driven and struck against the plaintiff, whereby, etc., as in para. 3].

No. 30

Injuries caused in negligent driving

(Title)

A. B., the above-named plaintiff, states as follows:—

1. The plaintiff is a shoemaker, carrying on business at …………the defendant is a merchant of …………………….

2. On the …………. day of …………………20........... , the plaintiff was walking southward along

Chowringhee, in the City of Calcutta, at about 3 o’clock in the afternoon. He was obliged to cross Middleton Street, which is a street running into Chowringhee at right angles. While he was crossing this street, and just before he could reach the foot pavement on the further side thereof, a carriage of the defendant's, drawn by two horses under the charge and control of the defendant's servants, was negligently, suddenly and without any warning turned at a rapid and dangerous pace out of Middleton Street into Chowringhee. The pole of the carriage struck the plaintiff and knocked him down, and he was much trampled by the horses.

3. By the blow and fall and trampling the plaintiff’s left arm was broken and he was bruised and injured on the side and back, as well as internally, and in consequence thereof the plaintiff was for four months ill and in suffering, and unable to attend to his business, and incurred heavy medical and other expenses, and sustained great loss of business and profits.

[As in paras. 4 and 5 of Form No. 1, and relief claimed.]

No. 31

For Malicious Prosecution

(Title)

A . B., the above-named plaintiff, states as follows: —

1. On the ………….. day of ………………..…20............ , the defendant obtained a warrant of arrest

from …….…… [a Magistrate of the said city, or as the case may be] on a charge of.................................................................................................................................. , and the

plaintiff was arrested thereon, and imprisoned for..................... [days, or hours, and gave bail in the sum

of.................... rupees to obtain his release].

2. In so doing the defendant acted maliciously and without reasonable or probable cause.

3. On the …………….. day of ……………….20........ , the Magistrate dismissed the complaint of the

defendant and acquitted the plaintiff.

4. Many persons, whose names are unknown to the plaintiff, hearing of the arrest, and supposing the plaintiff to be a criminal, have ceased to do business with him; or in consequence of the said arrest, the plaintiff lost his situation as clerk to one E.F.; or in consequence the plaintiff suffered pain of body and mind, and was prevented transacting his business, and was injured in his credit, and incurred expense in obtaining his release from the said imprisonment and in defending himself against the said complaint.

[As in paras. 4 and 5 of Form No. 1, and relief claimed].

No. 32

Movables wrongfully detained

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the …………….. day of ……………20.......... , plaintiff owned [ or state facts showing a right

to the possession ] the goods mentioned in the schedule hereto annexed [ or describe the goods,] the estimated value of which is rupees.

2. From that day until the commencement of this suit the defendant has detained the same from the plaintiff

3. Before the commencement of the suit, to wit, on the …………….. day of……….20 , the

plaintiff demanded the same from the defendant, but he refused to deliver them.

[As in Paras 4 and 5 of Form No. 1.]

6. The plaintiff claims—

(1) delivery of the said goods, or.......... rupees, in case delivery cannot be had;

(2) rupees compensation for the detention thereof.

No. 33

Against A Fraudulent purcharer and his transferee with notice

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the …………... day of ….……..……20....... , the defendant C.D., for the purpose of including

the plaintiff to sell him certain goods, represented to the plaintiff that [he was solvent, and worth ………

rupees over all his liabilities].

2. The plaintiff was thereby induced to sell and deliver to C.D. [one hundred boxes of tea], the estimated value of which is rupees.

3. The said representations were false, and were then known by C.D. to be so [or at the time of making the said representations, C.D. was insolvent, and knew himself to be so].

4. C.D. afterwards transferred the said goods to the defendant E.F. without consideration [or who had notice of the falsity of the representation].

5. [ Facts showing when the cause of action arose and that the Court has jurisdiction. ]

6. The value of the subject-matter of the suit for the purpose of jurisdiction is rupees and

for the purpose of court-fees is.................. rupees.

7. The plaintiff claims—

(1) delivery of the said goods, or........................ rupees, in case delivery cannot be had;

(2)rupees compensation for the detention thereof.

No. 34

Rescission of a contract on the ground of mistake

(Title)

A. B., the above-named plaintiff, states as follows:—

1. On the ……………. day of ………………………20……….. , the defendant represented to the plaintiff that a certain piece of ground belonging to the defendant, situated at , contained [ten

bighas].

2. The plaintiff was thereby induced to purchase the same at the price of rupees in the

belief that the said representation was true, and signed an agreement, of which the original is hereto annexed. But the land has not been transferred to him.

3. On the …………….. day of ………………………20………, the plaintiff paid the defendant rupees as part of the purchase money.

4. That the said piece of ground contained in fact only [five bighas].

5. [ Facts showing when the cause of action arose and that the Court has jurisdiction. ]

6. The value of the subject-matter of the suit for the purpose of jurisdiction is.................................................... rupees and for the purpose of court-fees is rupees.

7. The plaintiff claims—

(1) .............. rupees, with interest from the............. day of............... 20.......... .

(2) that the said agreement be delivered up and cancelled.

No. 35

An injunction restraining waste

(Title)

A. B., the above-named plaintiff states as follows:—

1. The plaintiff is the absolute owner of [ describe the property].

2. The defendant is in possession of the same under a lease from the plaintiff.

3. The defendant has [cut down a number of valuable trees, and threatens to cut down many more for the purpose of sale] without the consent of the plaintiff.

4. [ Facts showing when the cause of action arose and that the Court has jurisdiction. ]

5. The value of the subject-matter of the suit for the purpose of jurisdiction is rupees and for the

purpose of court-fees is......... rupees.

6. The plaintiff claims that the defendant be restrained by injunction from committing or permitting any further waste on the said premises.

[Pecuniary compensation may also be claimed.]

No. 36

Injunction restraining nuisance

(Title)

A. B., the above-named plaintiff, states as follows:—

1. Plaintiff is, and at all the times hereinafter mentioned was, the absolute owner of [the house No. Street, Calcutta].

2. The defendant is, and at all the said times was, the absolute owner of [a plot of ground in the same street ].

3. On the ................ day of...............20.........., the defendant erected upon his said plot a slaughter­house, and still maintains the same; and from that day until the present time has continually caused cattle to be brought and killed there [and has caused the blood and offal to be thrown into the street opposite the said house of the plaintiff].

[4. In consequence the plaintiff has been compelled to abandon the said house, and has been unable to rent the same.]

5. [ Facts showing when the cause of action arose and that the Court has jurisdiction. ]

6. The value of the subject-matter of the suit for the purpose of jurisdiction is rupees and for the purpose of court-fees is rupees.

7. The plaintiff claims that the defendant be restrained by injunction from committing or permitting any further nuisance.

No. 37

Public nuisance

(Title)

A. B., the above-named plaintiff, states as follows:—

1. The defendant has wrongly heaped up earth and stones on a public road known as............................................................................................................... Street

at...........so as to obstruct the passage of the public along the same and threatens and intends, unless restrained from so doing, to continue and repeat the said wrongful act.

1[*2. The plaintiff has obtained the leave of the Court for the institution of this suit.]

1. Subs. by Act 104 of 1976, s. 93, for paragraph 2 (w.e.f. 1-2-1977).

*Not applicable where suit is instituted by the Advocate-General.

[As in paras. 4 and 5 of Form No. 1]

5. The plaintiff claims—

(1) a declaration that the defendant is not entitled to obstruct the passage of the public along the said road;

(2) an injunction restraining the defendant from obstructing the passage of the public along the said public road and directing the defendant to remove the earth and stones wrongfully heaped up as aforesaid.

No. 38

Injunction against the diversion of a water-course

(Title )

A. B., the above-named plaintiff, states as follows:— [ As in form No. 27.]

The plaintiff claims that the defendant be restrained by injunction from diverting the water as aforesaid.

No. 39

Restoration of movable property threatened with destruction and for an injunction

(Title )

A. B., the above-named plaintiff, states as follows:—

1. Plaintiff is, and at all times hereinafter mentioned was, the owner of [a portrait of his grandfather which was executed by an eminent painter], and of which no duplicate exists [ or state any facts showing that the property is of a kind that cannot be replaced by money ].

2. On the.............. day of...............20......, he deposited the same for the safe-keeping with the defendant.

3. On the............... day of...............20......, he demanded the same from the defendant and offered to pay all reasonable charges for the storage of the same.

4. The defendant refuses to deliver the same to the plaintiff and threatens to conceal, dispose of, cut or injure the same if required to deliver it up.

5. No pecuniary compensation would be an adequate compensation to the plaintiff for the loss of the [painting].

[As in paras. 4 and 5 of Form No. 1. ]

8. The plaintiff claims—

(1) that the defendant be restrained by injunction from disposing of, injuring or concealing the said [painting],

(2) that he be compelled to deliver the same to the plaintiff.

No. 40

Interpleader

(Title)

A. B., the above-named plaintiff, states as follows:—

1. Before the date of the claims hereinafter mentioned G.H. deposited with the plaintiff [describe the property] for [safe-keeping].

2. The defendant C.D. claims the same [under an alleged assignment thereof to him from G.H.].

3. defendant E. F. also claims the same [under an order of G.H. transferring the same to him.]

4. The plaintiff is ignorant of the respective rights of the defendants.

5. He has no claim upon the said property other than for charges and costs, and is ready and willing to deliver it to such persons as the Court shall direct.