Fri Mar 20 1908 | Procedural and Administration | Comments (0)
Year : 1908
Administration by pecuniary legatee
(Title)
[Alter Form No. 41 thus]
[Omit paragraph 1 and substitute for paragraph 2] E.F, late of............................... , died on or about
the.............. day of...............................................By his last will, dated the.............................................................................................................................. day
of...................... he appointed C.D. his executor, and bequeathed to the plaintiff a legacy of............
rupees.
In paragraph 4 substitute “legacy” for “debt”
Another form
(Title)
E. F, the above-named plaintiff, states as follows:—
1. A. B. of K. in the…………………died on the……………. Day of by his last will,
dated the........... day of............. , he appointed the defendant and M.N. [who died in the testator’s lifetime]
his executors, and bequeathed his property, whether movable or immovable, to his executors in trust, to pay the rents and income thereof to the plaintiff for his life; and after his decease, and in default of his having a son who should attain twenty-one, or a daughter who should attain that age or marry, upon trust as to his immovable property for the person who would be the testator's heir-at-law, and as to his movable property for the persons who would be the testator’s next-of-kin if he had died intestate at the time of the death of the plaintiff and such failure of his issue as aforesaid.
2. The will was proved by the defendant on the...............................day of The plaintiff
has not been married.
3. The testator was at his death entitled to movable and immovable property; the defendant entered into the receipt of the rents of the immovable property and got in the movable property; he has sold some part of the immovable property.
[As in paras. 4 and 5 of Form No. 1.]
6. The plaintiff claims—
(1) to have a movable and immovable property of A. B. administered in this Court, and for that purpose to have all proper directions given and accounts taken;
(2) such further or other relief as the nature of the case may require.
Execution of trusts
(Title)
A. B., the above-named plaintiff, states as follows:—
1. He is one of the trustees under an instrument of settlement bearing date on or about the.................day of made upon the marriage of E.E. and G.H., the father and mother
of the defendant [or an instrument of transfer of the estate and effects of E.F. for the benefit of C.D., the defendant, and the other creditors of E.F.].
2. A.B. has taken upon himself the burden of the said trust, and is in possession of [or of the proceeds of] the movable and immovable property transferred by the said instrument.
3. C.D. claims to be entitled to a beneficial interest under the instrument. [As in paras. 4 and 5 of Form No. 1.]
6. The plaintiff is desirous to account for all the rents and profits of the said immovable property [and the proceeds of the sale of the said, or of part of the said, immovable property, or movable, or the proceeds of the sale of, or of part of, the said movable property, or the profits occurring to the plaintiff as such trustee in the execution of the said trust]; and he prays that the Court will take the accounts of the said trust, and also that the whole of the said trust estate may be administered in the Court for the benefit of C.D., the defendant, and all other persons who may be interested in such administration, in the presence of C.D. and such other persons so interested as the Court may direct, or that C.D. may show good cause to the contrary.
[ N.B.—Where the suit is by a beneficiary, the plaint may be modelled mutatis mutandis on the plaint by a legatee.]
Foreclosure or sale
(Title)
A. B., the above-named plaintiff, states as follows:—
1. The plaintiff is mortgagee of lands belonging to the defendant.
2. The following are the particulars of the mortgage:—
(a) (date);
(b) (names of mortgagor and mortgagee);
(c) (sum secured);
(d) (rate of interest);
(e) (Property subject to mortgage);
(f) (amount now due);
(g) (if the plaintiff's title is derivative, state shortly the transfers or devolution under which he claims).
(If the plaintiff is mortgagee in possession add).
3. The plaintiff took possession of the mortgaged property on the .........day of and is
ready to account as mortgagee in possession from that time. [ As in paras. 4 and 5 of Form No. 11
6. The plaintiff claims—
(1) payment, or in default [sale or] foreclosure [and possession];
[Where Order 34, rule 6, applies.]
(2) in case the proceeds of the sale are found to be insufficient to pay the amount due to the plaintiff then that liberty be reserved to the plaintiff to apply for 1[an order for the balance].
Redemption
(Title)
A. B., the above-named plaintiff, states as follows:—
1. The plaintiff is mortgagor of lands of which the defendant is mortgagee.
2. The following are the particulars of the mortgage:—
(a) (date);
(b) (names of mortgagor and mortgagee);
(c) (sum secured);
(d) (rate of interest);
1. Subs. by Act 104 of 1976 s. 93, for “a decree for the balance” (w.e.f. 1-2-1977).
(e) (property subject to mortgage);
(f) ( If the plaintiff’s title is derivative, state shortly the transfers or devolution under which he claims).
(If the defendant is mortgagee in possession, add)
3. The defendant has taken possession [or has received the rents] of the mortgaged property. [As in paras. 4 and 5 of Form No. 1.]
6. The plaintiff claims to redeem the said property and to have the same reconveyed to him [and to have possession thereof]. 1 [together with mesne profits].
SPECIFIC PERFORMANCE (No. 1)
(Title)
A. B ., the above-named plaintiff, states as follows:—
1. By an agreement dated the........... day of................and signed by the defendant, he contracted to buy of [or sell to] the plaintiff certain immovable property therein described and deferred to, for the sum of rupees.
2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so.
3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice.
[As in paras. 4 and 5 of Form No. 1.]
6. The plaintiff claims that the Court will order the defendant specifically to perform the agreement and to do all acts necessary to put the plaintiff in full possession of the said property [or to accept a transfer and possession of the said property] and to pay the costs of the suit.
SPECIFIC PERFORMANCE (No. 2)
(Title)
A. B ., the above-named plaintiff, states as follows:—
1. On the..............day of..............20.......... , the plaintiff and defendant entered into an agreement, in
writing, and the original document is hereto annexed.
The defendant was absolutely entitled to the immovable property described in the agreement.
2. On the...........day of...............20............, the plaintiff tendered rupees to the defendant, and demanded a transfer of the said property by a sufficient instrument.
3. On the..........day of..................20.........., the plaintiff again demanded such transfer. [Or the defendant refused to transfer the same to the plaintiff.]
4. The defendant has not executed any instrument of transfer.
5. The plaintiff is still ready and willing to pay the purchase-money of the said property to the defendant.
[As in paras. 4 and 5 of Form No. 1.]
8. The plaintiff claims—
(1) that the defendant transfers the said property to the plaintiff by a sufficient instrument [following the terms of the agreement ];
(2)rupees compensation for withholding the same.
1. Ins. by Act 104 of 1976, s. 93 (w.e.f. 1-2-1977).
Partnership
(Title)
A.B ., the above-named plaintiff, states as follows:—
1. He and C.D., the defendant, have been for................... years [or months] past carrying on business
together under articles of partnership in writing [or under a deed, or under a verbal agreement].
2. Several disputes and differences have arisen between the plaintiff and defendant as such partners whereby it has become impossible to carry on the business in partnership with advantage to the partners, [Or the defendant has committed the following breaches of the partnership articles:—
(1)
(2)
(3) .]
[As in paras. 4and 5 of Form No. 1.]
5. The plaintiff claims—
(1) dissolution of the partnership;
(2) that accounts be taken;
(3) that a receiver be appointed.
( N.B.—In suits for the winding-up of any partnership, omit the claim for dissolution; and instead insert a paragraph stating the facts of the partnership having been dissolved ).
(4) Written statements
General Defences
Denial —The defendant denies that (set out facts). The defendant does not admit that (set out facts).
The defendant admits that………………but says that……………
The defendant denies that he is a partner in the defendant firm of……………………
Protest —The defendant denies that he made the contract alleged or any contract with the plaintiff. The defendant denies that he contracted with the plaintiff as alleged or at all.
The defendant admits assets but not the plaintiff’s claim.
The defendant denies that the plaintiff sold to him the goods mentioned in the plaintiff or any of them.
Limitation —The suit is barred by article.....................................or article...............of the Second Schedule to the Indian1 Limitation Act, 1877 (15 of 1877).
Jurisdiction —The Court has no jurisdiction to hear the suit on the ground that ( set forth the grounds).
On the ........................................................................................day of.................... a diamond ring was delivered
by the defendant to and accepted by the plaintiff in discharge of the alleged cause of action.
Insolvency —The defendant has been adjudged an insolvent.
The plaintiff before the institution of the suit was adjudged an insolvent and the right to sue vested in the receiver.
Minority —The defendant was a minor at the time of making the alleged contract.
1. See now the Limitation Act, 1963 (36 of 1963).
Payment into Court— The defendant as to the whole claim (or as to Rs........ part of the money claimed, or
as the case may be) has paid into Court Rs............................. and says that this sum is enough to satisfy
the plaintiff's claim (or the part aforesaid).
Performance remitted —The performance of the promise alleged was remitted on the date). Rescission—The contract was rescinded by agreement between the plaintiff and defendant. Res judicata—The plaintiff's claim is barred by the decree in suit (give the reference).
Estoppel —The plaintiff is estopped from denying the truth of (insert statement as to which estoppel
is claimed) because (here state the facts relied on as creating the estoppel).
Ground of defence subsequent to institution of suit —Since the institution of the suit, that is to say, on the...................... day of (set out facts).
No. 1
Defence in suits for goods sold and delivered
1. The defendant did not order the goods.
2. The goods were not delivered to the defendant.
3. The price was not Rs.
[or]
4. 1.
5. Except as to Rs. , same as 2.
6. 3.
7. the defendant [or A. B., the defendant's agent] satisfied the claim by payment before suit to the plaintiff [or to C.D., the plaintiff's agent] on the day of 20,
8. The defendant satisfied the claim by payment after suit to the plaintiff on the day of 20
Defence in suits on bonds
1. The bond is not the defendant’s bond.
2. The defendant made payment to the plaintiff on the day according to the condition of the bond.
3. The defendant made payment to the plaintiff after the day named and before suit of the principal and interest mentioned in the bond.
Defence in suits on guarantees
1. The principal satisfied the claim by payment before suit.
2. The defendant was released by the plaintiff giving time to the principal debtor in pursuance of a binding agreement.
Defence in any suits for debt
1. As to Rs. 200 of the money claimed, the defendant is entitled to set off for goods sold and delivered by the defendant to the plaintiff.
Particulars are as follows : Rs.
1907 January 25th............................................................................................................... 150
,, February 1st................................................................................................................. 50
Total 200
2. As to the whole [or as to Rs..................... , part of the money claimed] the defendant made tender
before suit of Rs....... and has paid the same into Court.
Defence in suits for injuries caused by negligent driving
1. The defendant denies that the carries mentioned in the plaint was the defendant's carriage, and that it was under the charge or control of the defendant's servants. The carriage belonged to...................... . of.....................Street, Calcutta, livery stable keepers employed by the defendant to supply him with carriages and horses and the person under whose charge and control the said carriage was, was the servant of the said.
2. The defendant does not admit that the said carriage was turned out of Middleton Street either negligently, suddenly or without warning, or at a rapid or dangerous pace.
3. The defendant says the plaintiff might and could, by the exercise of reasonable care and diligence, have seen the said carriage approaching him, and avoided any collision with it.
4. The defendant does not admit the statements contained in the third paragraph of the plaint.
Defence in all suits for wrongs
1. Denial of the several acts [or matters] complained of.
Defence in all suits for detention of goods
1. The goods were not the property of the plaintiff.
2. The good were detained for a lien to which the defendant was entitled. Particulars are as follows:—
1907, May 3rd To carriage of the goods claimed from Delhi to Calcutta:— 45 maunds at Rs. 2 per maund.................Rs. 90.
Defence in suits for infringement of copyright
1. The plaintiff is not the author [assignee, etc.]
2. The book was not registered.
3. The defendant did not infringe.
Defence in suits for infringement of trade mark
1. The trade mark is not the plaintiff’s.
2. The alleged trade mark is not a trade mark.
3. The defendant did not infringe.
Defence in suits relating to nuisances
1. The plaintiff’s lights are not ancient [or deny his other alleged prescriptive rights].
2. The plaintiff’s lights will not be materially interfered with by the defendant’s buildings.
3. The defendant denies that he or his servants pollute the water [or do what is complained of].
[ If the defendant claims the right by prescription or otherwise to do what is complained of, he must say so, and must state the grounds of the claim, i.e., whether by prescription, grant or what. ]
4. The plaintiff has been guilty of laches of which the following are particulars:— 1870. Plaintiff 's mill began to work.
1871. Plaintiff came into possession.
1883. First complaint.
5. As to the plaintiff's claim for damages the defendant will rely on the above grounds of defence, and says that the acts complain of have not produced any damage to the plaintiff [ If other grounds are relied on, they must be stated, e.g., limitation as to past damage. ]
Defence to suit for foreclosure
1. The defendant did not execute the mortgage.
2. The mortgage was not transferred to the plaintiff ( if more than one transfer is alleged, say which is denied).
3. The suit is barred by article................................................of the Second Schedule to the 1Indian Limitation Act, 1877 (15 of 1877).
4. The following payment have been made, viz, :—
(Insert date)— Rs. 1,000
(Insert date)— Rs. 500
5. The plaintiff took possession on the......................of................ and has received the rents ever since.
6. The plaintiff released the debt on the ..........................of.............................................
7. The defendant transferred all his interest to A. B. by a document dated..........
Defence to suit for redemption
1. The plaintiff’s right to redeem is barred by article of the Second Schedule to the 1Indian Limitation Act 1877 (15 of 1877).
2. The plaintiff transferred all interest in the property to A. B.
3. The defendant, by a document dated the....................day of............. transferred all his interest in
the mortgage-debt and property comprised in the mortgage to A.B.
4. The defendant never took possession of the mortgaged property, or received the rents thereof.
( if the defendant admits possession for a time only, he should state the time and deny possession beyond what he admits. )
1. See now the Limitation Act, 1963 (36 of 1963).
Defence to suit for specific performance
1. The defendant did not enter into the agreement.
2. A.B. was not the agent of the defendant (if alleged by plaintiff).
3. The plaintiff has not performed the following conditions—(Conditions).
4. The defendant did not—(alleged acts of part performance).
5. The plaintiff's title to the property agreed to be sold is not such as the defendant is bound to accept by reason of the following matter—(State why).
6. The agreement is uncertain in the following respects—(State them).
7. (or) The plaintiff has been guilty of delay.
8. (or) The plaintiff has been guilty of fraud (or misrepresentation).
9. (or) The agreement is unfair.
10. (or) The agreement was entered into by mistake.
11. The following are particulars of (7), (8), (9), (10) (or as the case may be).
12. The agreement was rescinded under Conditions of Sale, No. 11 (or by mutual agreement).
(In cases where damages are claimed and the defendant disputes his liability to damages, he must deny the agreement Or the alleged breaches, or show whatever other ground of defence he intends to rely on, e.g., the 1 Indian Limitation Act, accord and satisfaction, release, fraud, etc.)
Defence in administration suit by pecuniary legatee
1. A.B. ‘s will contained a charge of debts; he died insolvent; he was entitled at his death to some immovable property which the defendant sold and which produced the net sum of Rs , and the
testator had some movable property which the defendant got in, and which produced the net sum of Rs............
2. The defendant applied the whole of the said sums and the sum of Rs....................... ..........which the defendant received from rents of the immovable property in the payment of the funeral and testamentary expenses and some of the debts of the testator.
3. The defendant made up his accounts and sent a copy thereof to the plaintiff on the. day
of...................... 20........., and offered to plaintiff free access to the vouchers to verify such accounts, but he declined to avail himself of the defendant’s offer.
4. The defendant submits that the plaintiff ought to pay the cost of this suit.
Probate of will in solemn form
1. The said will and codicil of the deceased were not duly executed according to the provisions of the Indian Succession Act, 18652 (10 of 1865) [or of the Hindu Wills Act, 1870 2 (21 of 1870)].
2. The deceased at the time the said will and codicil respectively purport to have been executed, was not of sound mind, memory and understanding.
3. The execution of the said will and, codicil was obtained by the undue influence of the plaintiff [and others acting with him whose names are at present unknown to the defendant].
4. The execution of the said will and codicil was obtained by the fraud of the plaintiff, such fraud so far as is within the defendant’s present knowledge, being [state the nature of the fraud].
1. See now the Limitation Act, 1963 (36 of 1963).
2. See now the Indian Succession Act, 1925 (39 of 1925).
5. The deceased at the time of the execution of the said will and codicil did not know and approve the contents thereof [or of the contents of the residuary clause in the said will, as the case may be].
6. The deceased made his true last will, dated the 1st January, 1873, and thereby appointed the defendant sole executor thereof.
The defendant claims—
(1) that the Court will pronounce against the said will and codicil propounded by the plaintiff ;
(2) that the Court will decree probate of the will of the deceased, dated the 1st January, 1873, in solemn form of law.
PARTICULARS (O.6, r. 5.)
(Title of suit)
Particulars. —The following are the particulars of (here state the matters in respect of which particulars have been ordered) delivered pursuant to the order of the of
(Here set out the particulars ordered in paragraphs if necessary).
APPENDIX B PROCESS No. 1.
SUMMONSFORDISPOSALOFSUIT (O. 5, rr.1.5.)
(Title )
To
........ ...... ...... ...... ........ ...... . [ Name, description and place of residence.]
WHEREAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . has instituted a suit against you for you are hereby summoned to appear in this Court in person, or by a pleader duly instructed (and able to answer all material questions relating to the suit, or who shall be accompanied by some person; able to answer all such questions,...............on.................the........................................day.................of........................20........................................................................................................................ ,
at.........................................O’clock in the................................................ noon, to answer the claim ; and
as the day fixed for your appearance is appointed for the final disposal of the suit, you must be prepared to produce on that day all the witnesses upon whose evidence and all the documents upon which you intend to rely in support of your defence.
Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.
Given under my hand and the seal of the Court, this..............day of.......................................................................................................................... 20
Judge
NOTICE—1. Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call upon the witness to produce, on applying to the Court and on depositing the necessary expenses.
2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.
SUMMONS FOR SETTLEMENT OF ISSUES (O. 5, rr.1. 5.)
(Title)
To . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [ Name, description and place of residence.]
WHEREAS.................................................................................................... has instituted a suit against you
for……………………………..you are hereby summoned to appear in this Court in person, or by a pleader duly instructed, and able to answer all material question relating to the suit, or who shall be accompanied by some person able to answer all such questions, on the.........................................................day of……......................20....................., at............................................................................................................ O'clock
in the............................. noon, to answer the claim; 1[and further you are hereby directed to file on that
day a written statement of your defence and to produce on the said day all documents in your possession or power upon which you base your defence or claim for set-off or counterclaim, and where you rely on any other document whether in your possession or power or not, as evidence in support of your defence or claim for set-off or counterclaim, you shall enter such documents in a list to be annexed to the written statement].
Take note that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.
GIVEN under my hand and the seal of the Court, this.............. day of.................. 20 ...........
Judge.
NOTICE—1. Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call on the witness to produce, on applying to the Court and on depositing the necessary expenses.
2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.
SUMMONS TO APPEAR IN PERSON (O. 5, r. 3.)
(Title)
To.............................................................................. [Name, description and place of residence.]
WHEREAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . has instituted a suit against you
for...............you are hereby summoned to appear in this Court in person on the.............................................................................................................................. day
of ...................... 20........................................at O’clock in the....................................noon, to answer the
claim; and you are directed to produce on that day all the documents upon which you intend to rely in support of your defence.
Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.
GIVEN under my hand and the seal of the Court, this.......................... day of.......................................................................................................................... 20
Judge.
1. Subs. by Act 104 of 1976, s. 94, for certain words (w.e.f- 1-2-1977).
1[No. 4
Summons in a summary suit
(O. 37, r. 2)
(Title)
To.................................................................................. [Name description and place of residence.]
WHEREAS............................... has instituted a suit against you under Order XXXVII of the Code of Civil
Procedure, 1908, for Rs............... and interest, you are hereby summoned to cause and appearance to be
entered for you, within ten days from the service hereof, in default hereof the plaintiff will be entitled, after the expiration of the said period of ten days, to obtain a decree for any sum not exceeding the sum of Rs....................and the sum of Rs.................................................................... for costs, together with such interest, if any, as the Court may
order.
If you cause an appearance to be entered for you, the plaintiff will thereafter server upon you a summons for judgment at the hearing of which you will be entitle to move the Court for leave to defend the suit.
Leave to defend may be obtained if you satisfy the Court by affidavit or otherwise that there is defence to the suit on the merits or that it is reasonable that you should be allowed to defend.
Given under my hand and the seal of the Court, this............................day of...........................20...........
Judge. ]
2 [No. 4A
Summons for judgment in a summary suit
(O. 37, r. 3)
(Title)
In the..............................Court, at..............................Suit No........................................................................................................................... of 20
XYZ Plaintiff
Versus
ABC Defendant
Upon reading the affidavit of the plaintiff the Court makes the following order, namely:—
Let all parties concerned attend the Court or Judge, as the case may be, on the .....................day of
.................. 20 , at....................... O’clock in the forenoon on the hearing of the application of the
plaintiff that he be at liberty to obtain judgment in this suit against the defendant (or if against one or some or several, insert names) for Rs. and for interest and costs.
Date the ......................day of.................. 20 .]
Judge.
1. Subs. by Act 104 of 1976, s. 94, for Form No. 4 (w.e.f 1-2-1977).
2. Subs. by s. 94, ibid. (w.e.f. 1-2-1977).
Notice to person who, the court considers, should be added as co-plaintiff
(O. 1, r. 10)
(Title)
To............................................................................. [Name, description and place of residence.]
WHEREAS.........................has instituted a suit against.........................for........................................................................................................................ and whereas
it appears necessary that you should be added as plaintiff in the said suit in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved.
Take notice that you should on or before the .................. day of....................... 20, signify to this
Court whether you consent to be so added.
Given under my hand and the seal of the Court, this .................day of.......................................................................................................................... 20
Judge.
Summons to legal representative of a deceased defendant
(O. 22, r. 4)
(Title)
To
WHEREAS the plaintiff .................... ...........instituted a suit in this Court on the........................................................................................................................ day
of.............../20....against the defendant........ who has since deceased, and whereas the said plaintiff has made an application to this Court alleging that you are the legal representative of the said, .. deceased, and desiring that you be made the defendant in his stead;
You are hereby summoned to attend in this Court on the…………day of........... ......... ......20......., at
…………….A.M. to defend the said suit and, in default of your appearance on the day specified, the said suit will be heard and determined in your absence.
Given under my hand and the seal of the Court, this .................day of..................... 20
Judge.
ORDER FOR TRANSMISSION OF SUMMONS FOR SERVICE IN THE JURISDICTION OF ANOTHER COURT
(O. 5, r. 21)
(Title)
WHEREAS it is stated that ................................................................................................
|
defendant |
in the above suit is at present residing in.......................................................... |
|
witness |
It is ordered that a summons returnable on the ....................day of...........................20.......................................................................................................................... , be
forwarded to the ..............Court of........................ for service on the said
defendant/witness............ with a duplicate of this proceeding.
The court-fee of............ chargeable in respect to the summons has been realised on this Court in
stamps.
Dated ........................20.........
Judge .
ORDER FOR TRANSMISSION OF SUMMIONS TO BE SERVED ON A PRISONER
(o. 5, r. 25.)
(Title)
To
. . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . .
The Superintendent of the Jail at........................................................................................................
............................................. .............................................................................................................
Under the provisions of Order V, rule 24, of the Code of Civil Procedure, 1908, a summons in duplicate is here with forwarded for service on the defendant.................. who is............... a prisoner in jail, You are requested to cause a copy of the said summons to be served upon the said defendant and to return the original to this Court signed by the said defendant, with a statement of service endorsed thereon by you.
Judge.
ORDER FOR TRANSMISSION OF SUMMONS TO BE SERVED ON A PUBLIC SERVANT OR SOLDIER
(O. 5, rr. 27, 28.)
(Title)
To
UNDER the provisions of Order V, rule 27 (or 28, as the case may be), of the Code of Civil
Procedure, 1908, a summons in duplicate is herewith forwarded for service on the defendant…………….who is stated to be serving under you. You are requested to cause a copy of the said summons to be served upon the said defendant and to return the original to this Court signed by the said defendant, with a statement of service endorsed thereon by you.
Judge.
TOACCOMPANY RETURNS OF SUMMONS OF ANOTHER COURT (O. 5, r. 23.)
(Title)
Read proceeding from the ..................forwarding................ for service on.......................................................................................................................... in Suit No.
...............................Of...............20...... of that Court.
Read Serving Officer's endorsement stating that the.....................and proof of the above having been duly taken by me on the oath of............................ and.................................it is ordered that the..................................................................................................................... be
returned to the........... with a copy of this proceeding.
Judge.
NOTE .—This form will be applicable to process other than summons, the service of which may have to be effected in the same manner.
Affidavit of process-Server to accompany return of a summons or notice
(O. 5, r. 18.)
(Title)
The affidavit of......................................, son of ...................................................................................................
 |
affirm
and say as follows :—
(1)
|
issued by the Court of ...........in Suit No. .............of............. 20......... , in the said Court, dated the
day of ..........20........ , for service on
|
(3) |
The said............. was at the time personally known to me, and I served the said |
Summons |
|
notice |
||
|
him |
On the ..........day of........20........, at about....................O’clock in the ................ |
|
|
her |
................noon at......................by tendering a copy thereof to him and requiring her |
His her |
|
Signature to the original notice |
||
(a)
(b)
(a) Here state whether the person served signed or refused to sing the process, and in whose presence.
(b) Signature of process-server.
or,
(3) The said........................not being personally known to me.............accompanied me. to
and pointed out to me a person whom he stated to be the said......., and I served the said....................................................................................................... summons
notice
on Him on the ......................day of...................20......., at about...............o’clock in the..........
her
noo n
at.....by tendering a copy thereof to him and requiring him Signature to the original summon
her her notice
(a)
(b)
(a) Here state whether the person served signed or refused to sing the process, and in whose presence.
(b) Signature of process-server.
or,
(3) The said........... and the house in which he ordinarily resides being personally known to me, I
went to the said house, in ................and thereon the .................day, of..................... 19
at about.......................o’clock in the...............noon , I did not find the said....................
(a)
(b)
(a) Enter fully and exactly the manner in which the process was served, with special reference to Order 5, rules 15 and 17.
(b) Signature of process-server.
or,
(3) One...........accompanied me to....................and there pointed out to me which he said was the house in which......................ordinarily resides. I did not find the said.............................................................................................................. there.
(a)
(b)
(a) Enter fully and exactly the manner in which the process was served, with special reference to Order 5, rules 15 and 17.
(b) Signature of process-server.
or,
If substituted service has been ordered, state fully and exactly the manner in which the summons was served with special reference to the terms of the order for substituted service.
Sworn
by the said................................................................................................... before me
affirmed
this......................................................day of..................20..............
Notice to dependant
(O. 9, r. 6.)
(Title)
Empowered under section 139 of the Code of Civil Procedure, 1908, to administer the oath to deponents.
To......................................................................... [Name, description and place of residence.]
WHEREAS this day was fixed for the hearing of the above suit and a summons was issued to you and the plaintiff has appeared in this Court and you did not so appear, but from the return of the Nazir it has been proved to the satisfaction of the Court that the said summons was served on you but not in sufficient time to enable you to appear and answer on the day fixed in the said summons;
Notice is hereby given to you that the hearing of the suit is adjourned this day and that the................... day of..........................20. is now fixed for the hearing of the same;
in default of your appearance on the day last mentioned the suit will be heard and determined in your absence.
GIVEN under my hand and the seal of the Court, this .........................day of ............... 20.......
Judge.
Summons to witness
(O. 16, rr. 1, 5.)
(Title)
To.........................................................
WHEREAS your attendance is required to................................................................................................
on behalf of the................................................................................................................................. in the above
suit, you are hereby required [personally] to appear before this Court on the............................................................................................................................... day of
............ 20..........., at....................O’clock in the forenoon, and to bring with you [or to send to this Court].
A sum of Rs.............. , being your travelling and other expenses and subsistence allowance for one
day, is herewith sent. If you fail to comply with this order without lawful excuse, you will be subject to the consequences of non-attendance laid down in rule 12 of Order XVI of the Code of Civil Procedure, 1908.
GIVEN under my hand and the seal of the Court, this............................day of.....................20...............
Judge.
NOTICE.—(1) If you are summoned only to produce a document and not to give evidence, you shall be deemed to have complied with the summons if you cause such document to be produced in this Court on the day and hour aforesaid.
(2) If you are detained beyond the day aforesaid, a sum of Rs........................................will be tendered to you for each day's attendance beyond the day specified.
PROCLAMATION REQUIRING ATTENDANCE OF WITNESS (O. 16, r. 10.)
(Title)
To
WHEREAS it appears from the examination on oath of the serving officer that the summons could not
be served upon the witness in the manner prescribed by law : and whereas it appears that the evidence of the witness is material, and he absconds and keeps out of the way for the purpose of evading the service of the summons : This proclamation is, therefore, under rule 10 of Order XVI of the Code of Civil Procedure, 1908, issued requiring the attendance of the witness in this Court on the.....................day of................20.........at..........O'clock in the forenoon and from day to day until he shall have leave to depart; and if the witness fails to attend on the day and hour aforesaid he will be dealt with according to law.
GIVEN under my hand and the seal of the Court, this ............... day of .......................... 20....
Judge.
PROCLAMATION REQUIRING ATTENDANCE OF WITNESS (O. 16, r. 10.)
(Title)
To
WHEREAS it appears from the examination on oath of the serving officer that the summons has been
duly served upon the witness, and whereas it appears that the evidence of the witness is material and he has failed to attend in compliance with such summons : This proclamation is, therefore, under rule 10 of Order XVI of the Code of Civil Procedure, 1908, issued requiring the attendance of the witness in this Court on the.......day of.............. 20......... at........ O'clock in the forenoon, and from day to day until he shall have leave to depart; and if the witness fails to attend on the day and hour aforesaid he will be dealt with according to law.
GIVEN under my hand and the seal of the Court, this........................... day of........... 20
Judge.
WARRANT OF ATTACHMENT OF PROPERTY OF WITNESS (O. 16, r. 10.)
(Title)
To
The Bailiff of the Court.
WHEREAS the witness.................................................................................................................... cited by
............................................................................................................................. .......has not, after the
expiration of the period limited in the proclamation issued for his attendance, appeared in Court; You are hereby directed to hold under attachment................... property belonging to the said witness to the value. of and to submit a return, accompanied with an inventory thereof,
within............................ days.
Given under my hand and the seal of the Court, this.................................. day of................................................................................................................................ 20
........................................
To
The Bailiff of the Court.
WARRANT OF ARREST OF WITNESS (O. 16, r. 10)
(Title)
Judge.
WHEREAS.................................................................................has been duly served with a summons but has
failed to attend (absconds and keeps out of the way for the purpose of avoiding service of a summons); You are hereby ordered to arrest and bring the said...................................................................before the Court.
You are further ordered to return this warrant on or before the ................ day of...........................
20........... with an endorsement certifying the day on and the manner in which it has been executed,
or the reason why it has not been executed.
Given under my hand and the seal of the Court, this................... day of....................... 20
Judge.
WARANT OF COMMITTAL (O. 16, r. 16)
(Title)
To
The Officer in charge of the Jail at ..........................................
WHEREAS the plaintiff (or defendant) in the above-named suit has made application to this Court that security be taken for the appearance of...... give evidence (or to produce a document), on the day of
....................................................................................................... 20 and whereas the Court has
called upon the said........... to furnish such security, which he has failed to do; This is to require you to
receive the said...........into your custody in the civil prison and to produce him before this Court at
.....................................on the said day and on such other day or days as may be hereafter ordered.
GIVEN under my hand and the seal of the Court, this ................... day of ............... 20 ............
Judge.
WARRANT OF COMMITTAL (O 16, r. 18)
(Title)
To
The Officer in charge of the Jail at ..................................
WHEREAS......................... , whose attendance is required before this Court in the above-named case to
give evidence or to produce a document), has been arrested and brought before the Court in custody; and whereas owing to the absence of the plaintiff (or defendant), the said................................................................................................................ cannot give such
evidence (or produce such document); and whereas the Court has called upon the said to............................................................................................................................. to-
give security for his appearance on the.............................day of................20 ,
at....................................which he has failed to do; This is to require you to receive the said.......................................................................................................................... into
your custody in the civil prison and to produce him before this Court at......... on the. day
of................. 20
GIVEN under my hand and the seal of the Court, this day of 20
Judge.
DISCOVERY, INSPECTION AND ADMISSION
ORDER FOR DELIVERY OF INTERROGATORIES (O. 11, r 1.) In the Court of...........................................................
Civil Suit No.....................of........................ 20
A. B . ................................................................ Plaintiff,
against
C.D.E.F . and G.H ...…....…. Defendants.
Upon hearing ........................ and upon reading the affidavit of ................. filed the........................................................................................................................ day
of…………20……….; It is ordered that the………..be at liberty to deliver to the………
Interrogatories in writing, and that the said........... do answer the interrogatories as prescribed by Order
XI, rule 8, and that the costs of this application be…………..
INTERROGATORIES (O. 11, r. 4.)
(Title as in No. 1, supra)
Interrogatories on behalf of the above-named [ Plaintiff or defendant C. D.] for the examination of the above-named [defendants E.F. and G. H. or Plaintiff].
1. Did not, etc.
2. Has not, etc.
etc., etc., etc.
[ The defendant E.F. is required to answer the interrogatories numbered............................................................................................................................ ]
[ The defendant G. H. is required to answer the interrogatories numbered............................................................................................................................ ]
ANSWER TO INTERROGATORIES (O. 11, r. 9.)
(Title as in No. 1, supra)
The answer of the above-named defendant E. F., to the interrogatories for his examination by the above-named plaintiff.
In answer of the said interrogatories, I, the above-named E. F., make oath and say as follows: —
1
2 . Enter answers to interrogatories in paragraphs numbered consecutively.
3. I object to answer the interrogatories numbered on the ground that [ state grounds of objection].
No. 4
ORDERFOR AFFIDAVIT AS TODOCUMENTS (O. 11, r. 12.)
(Title as in No. 1, supra)
Upon hearing………………; It is ordered that the………..do within…............ form the date of this
order, answer on affidavit stating which documents are or have been in his possession or power relating to the matter in question in this suit, and that the costs of this application be…………………… .
AFFIDAVIT AS TO DOCUMENTS (O. 11, r. 13.)
(Title as in No. 1, supra)
I, the above-named defendant C. D., make oath and say as follows : —
1. have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second parts of the first schedule hereto.
2. object to produce the said documents set forth in the second part of the first schedule hereto [stale grounds of objection]
3. I have had but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto.
4. The last-mentioned documents were last in my possession or power on. [ State when and what has become of them and in whose possession they now are ].
5. According to the best of my knowledge, information and belief I have not now, and never had, in my possession, custody or power, or in the possession, custody or power of my pleader or agent, or in the possession custody or power of any other person on my behalf, any account, book of account, voucher, receipt, letter memorandum, paper or writing, or any copy of or extract from any such document, or any other documents whatsoever, relating to the matters in question in this suit or any of them, or wherein any entry has been made relative to such matters or any of them, other than and except the documents set forth in the said first and second schedules hereto.
ORDER TO PRODUCE DOCUMENTS FOR INSPECTION (O. 11, r. 14.)
(Title as in No. 1, supra)
Upon hearing………………and upon reading the affidavit of……………….. filed the………………
day of……………20……………; It is ordered that the………………..do, at all reasonable times, on reasonable notice, produce at…………………., situate at................................................................................. , the
following documents, namely,………………, and that the……………be at liberty to inspect and produce the documents so produced, and to make notices of their contents. In the meantime, it is ordered that all further proceedings be stayed and that the costs of this application be……………………….
NOTICE TO PRODUCE DOCUMENTS (O. 11, r. 16.)
(Title as in No. 1, supra)
Take notice that the [plaintiff or defendant] requires you to produce for his inspection the following documents referred to in your [plaint or written statement or affidavit, dated the…......................................................................................................... day of
…………….20………… ].
[Describe documents required.]
X. Y, pleader for the…………..
To Z., pleader for the………..
NOTICE TO INSPECT DOCUMENTS (O. 11, r. 17.)
(Title as in No. 1, supra)
Take notice that you can inspect the documents mentioned in your notice of the........................................................................................................................ day
Of……………..20……….. [except the documents numbered ……………….in that notice insert place of inspection] on Thursday next, the instant, between the hours of 12 and 4 O’clock.
Or, that the [plaintiff or defendant] objects to giving you inspection of documents mentioned in your notice of the day of………..20 , on the ground that [state the ground].
NOTICE TO ADMIT DOCUMENTS (O. 12, r. 3.)
(Title as in No. 1, supra)
Take notice that the plaintiff [or defendant] in this suit proposes to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the defendant [or plaintiff], his pleader or agent………... at…………on…………between the hours of…………………..; and the defendant [or plaintiff] is hereby required, within forty-eight hours from the last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed or executed, as they purport respectively to have been; that such as are specified as copies are true copies; and such documents as are stated to have been served, sent or delivered were so served, sent or delivered, respectively, saving all just exceptions to the admissibility of all such documents as evidence in this suit.
G.H. pleader [as agent] for plaintiff [or defendant]. To E.F., pleader [or agent] for defendant [or plaintiff].
[Here describe the documents and specify as to each document whether it is original or a copy].
NOTICE TO ADMIT FACTS (O. 12, r. 5.)
(Title as in No. 1, supra)
Take notice that the plaintiff [or defendant] in this suit requires the defendant [or plaintiff] to admit, for the purposes of this suit only, the several facts respectively hereunder specified; and the defendant [or plaintiff] is hereby required, within six days from the service of this notice, to admit the said several facts, saving all just exceptions to the admissibility of such facts as evidence in this suit.
G.H. pleader [or agent] for plaintiff [or defendant]. To E.F., pleader [or agent] for defendant [or plaintiff].
The facts, the admission of which is required, are—
1. That M. died on the 1st January, 1890.
2. That he died intestate.
3. That N. was his only lawful son.
4. That O. died on the 1st April, 1896.
5. That O. was never married.
ADMISSION OF FACTS PURSUANT TO NOTICE (O. 12, r. 5.)
(Title as in No. 1, supra)
The defendant [or plaintiff] in this suit, for the purposes of this suit only, hereby admits the several facts respectively hereunder specified, subject to the qualifications or limitations, if any, hereunder specified, saving all just exceptions to the admissibility of any such facts, or any of them, as evidence in this suit:
Provided that this admission is made for the purposes of this suit only, and is not an admission to be used against the defendant [ or plaintiff] on any other occasion or by any one other than the plaintiff [or defendant, or party requiring the admission].
E. F., pleader [or agent] for defendant [ or plaintiff].
To G. H., pleader [or agent] for plaintiff [ or defendant].
|
Facts admitted |
Qualifications or limitations, if any, subject to which they are admitted |
|
1. That M. died on the 1st January, 1890….. |
1. |
|
2. That he died intestate……………………... |
2. |
|
3. That N. was his lawful son ………………. |
3. But not that he was his only lawful son. |
|
4. That O. died………………………………. |
4. But not that he died on the 1st April, 1896. |
|
5. That O. was never married………………. |
5. ................................................................... |
NOTICETOPRODUCE(GENERALFORM)(O. 12, r. 8.)
(Title as in No. 1, supra)
Take notice that you are hereby required to produce and show to the Court at the first hearing of this suit, all books, papers, letters, copies of letters and other writings and documents in your custody, possession or power, containing any entry, memorandum or minute relating to the matters in question in this suit, and particularly.
G. H. pleader [or agent] for plaintiff [or defendant].
To E. F. pleader or agent] for defendant [ or plaintiff].
APPENDIX D DECREES No. 1
DECREE IN ORIGINAL SUIT (O. 20, rr. 6,7.)
(Title)
Claim for ........................................................................................................................................
THIS suit coming on this day for final disposal before................................. in the presence of
....................................... for the plaintiff and of......................... for the defendant, it is ordered and
decreed that .......................................... and that the sum of Rs................................................................................................................................ be paid by
the....................................... to the.......................... on account of the costs of this suit, with interest
thereon at the rate of................................ per cent. per annum from this date to date of realization.
Given under my hand and the seal of the Court, this..................... day of ...................................
20...
Judge.
Costs of Suit
|
Plaintiff |
Defendant |
||||||
|
Rs. |
A. |
P. |
Rs. |
A. |
P. |
||
|
1. Stamp for plaint……….. |
Stamp for power……………... |
||||||
|
2. Do. for power…………… |
Do. for petition……… |
||||||
|
3. Do. for exhibits…………. |
Pleader’s fee…………. |
||||||
|
4. Pleader’s fee on Rs. ...... |
Subsistence for witnesses… |
||||||
|
5. Subsistence for witnesses.. |
Service of process………. |
||||||
|
6. Commissioner’s fee…… |
Commissioner’s fee……….. |
||||||
|
7. Service of process…….. |
|||||||
|
Total |
Total |
Simple money decree
(Section 34) (Title)
Claim for......................................................................................................................................................
THIS suit coming on this........................day for final disposal before..........in the presence of
..............................for the plaintiff and of.................for the defendant; It is ordered that the................................................................................................................................. do
pay to the.................. the sum of Rs................ with interest thereon at the rate of per cent.
per annum from......................................to the date of realization of the said sum and do also pay Rs..................... , the costs of this suit, with interest thereon at the rate of................................................................................................................... per cent. per annum from
this date to the date of realization.
Given under my hand and the seal of the Court, this........................... day of.......................................................................................................................... 20
Judge.
Costs of Suit
|
Plaintiff |
Defendant |
||||||
|
Rs. |
A. |
P. |
Rs. |
A. |
P. |
||
|
1. Stamp for plaint.............. |
Stamp for power...... |
||||||
|
2. Do. for power............. |
Do. for petition ....... |
||||||
|
3. Do. for exhibit........... |
Pleader’s fee ......... |
||||||
|
4. Pleader's fee on Rs............ |
Subsistence for witnesses |
||||||
|
5. Subsistence for |
Service of process ... |
||||||
|
6. Commissioner’s fee.......... |
Commissioner’s ..... |
||||||
|
7. Service of process.............. |
|||||||
|
Total |
Total |
||||||
1 [No. 3
Preliminary decree for foreclosure
(Order XXXIV, rule 2.—Where accounts are directed to be taken.) ( Title)
This suit coming on this.................................day, etc.; It is hereby ordered and decreed that it be referred to. as the Commissioner to take the accounts following:—
(i) an account of what is due on this date to the plaintiff for principal and interest on his mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent. per annum or at such rate as the Court deems reasonable);
(ii) an account of the income of the mortgaged property received up to this date by the plaintiff or by any other person by the order or for the use of the plaintiff or which without the wilful default of the plaintiff or such person might have been so received;
(iii) an account of all sums of money properly incurred by the plaintiff up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security, together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent. per annum);
(iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the plaintiff which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgage-deed.
2. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause ( iv) above, together with interest thereon, shall first be adjusted against any sums paid by the plaintiff under clause ( iii) together with interest thereon, and the balance, if any, shall be added to the mortgage-money or, as the case may be, debited in reduction of the amount due to the plaintiff on
1. Subs. by Act 21 of 1929, s. 8 and Sch., for the original forms 3 to 11.
account of interest on the principal sum adjudged due, and thereafter in reduction or discharge of the principal.
3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all just allowances on or before the..............................................................day of........... and that upon such report of the Commissioner being received, it shall be confirmed and countersigned, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.
4. And it is hereby further ordered and decreed—
(i) that the defendant do pay into Court on or before the................................. day of ,
or any later date up to which time for payment may be extended by the Court, such sum as the Court shall fined due, and the sum of Rs. for the costs of the suit awarded to the plaintiff.
(ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by the plaintiff-or any person claiming under him or any person under whom he claims and free from all liability whatsoever or arising from the mortgage or this suit and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.
5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff shall be at liberty to apply to the Court for a final decree that the defendant shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
Schedule
Description of the mortgaged property ]
Preliminary decree for foreclosure
(Order XXXIV, rule 2.—Where the Court declares the amount due.) ( Title)
This suit coming on this............................. day, etc.; It is hereby declared that the amount due to the
plaintiff on his mortgage mentioned in the plaint calculated up to this.............................................................................................................................. day
of...................... is the sum of Rs......................... for principal, the sum of Rs.................... for interest on the said principal, the sum of Rs. for costs, charges and expenses (other than the costs of
the suit) properly incurred by the plaintiff in respect of the mortgage-security, together with interest thereon, and the sum of Rs........ for the costs of this suit awarded to the plaintiff, making in all sum of Rs............
2. And it is hereby ordered and decreed as follows:—
(i) that the defendant do pay into Court on or before the....................................day of or
any later date up to which time for payment may be extended by the Court of the said sum of Rs. ,
1. Subs. by Act 21 of 1929, s. 8 and the Sch., for Forms 3 to 11.
(ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.
3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff may apply to the Court for a final decree that the defendant shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
