(a) What is the preliminary decree and in what cases such a decree is passed? Enumerate the types of suits in which the Code of Civil Procedure provides for passing of a preliminary decree.
(b) Can two preliminary decrees be passed in a suit? Explain with illustration.
(c) Can two final decrees be passed in one civil suit? Elucidate.
Ans. (a) Preliminary Decree
Decree as per section 2(2), CPC means formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the rights of parties with regard to all or any of the matter in controversy in suit and may be either preliminary or "final.
Where adjudication decides the rights of the parties with regard to all or any of the matter in controversy in suit but does not completely dispose of the suit. It is preliminary decree. Explanation added to section 2(2) also says "Decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. Thus, preliminary decree is passed in those cases where proceeding in a suit are to be carried out in two stages, first when rights of parties are to be adjudicated thereafter the stage when those rights are implemented or given effect to. CPC provide for passing preliminary decree in following cases:
1) Suit for possession and mesne profit (Order XX, rule!2)
2) Administration Suit (Order XX, rule 13)
3) Suit for Pre-emption (Order XX, rule 14)
4) Suit for Dissolution of Partnership Firm (Order XX, rule 15)
5) Suit for Accounts between Principal and Agent (Order XX, rule 16)
6) Suit for Partition and Separate Possession (Order XX, rulelS)
7) Suit for foreclosure of Mortgage (Order XXXIV, rule 2-3)
8) Suit for Sale of Mortgaged Property (Order XXXIV, rules4-5)
(9) Suit for Redemption of Mortgage (Order XXXIV, rule 7-8)
(b) Whether can be more than one Preliminary Decree?
On the issue as to whether there can be more than one preliminary decree, there has been divergent views as, Allahabad High Court in Bharat Indu v. Yakub
Hasan, 1913 ILR 35 All 159 and Oudh Chief Court in Kedamath v. Pattu Lai, AIR 1945 Oudh 312 and the Punjab High Court in Joti Parshad v. Ganeshi Lai, AIR 1961 Punj 120 had taken the view that there can be only one preliminary decree and one final decree thereafter.
The Madras, Bombay and Calcutta High Courts had taken the view that there can be more than one preliminary decree (Kasi v. V. Ramanathan Chettiar, 1947- 2 Mad LJ 523; Raja Peary Mohan v. Manohar, 27 Cal WN 989: AIR 1924 Cal 160, Parashuram v. Hirabai, AIR 1957 Bom 59).
This controversy was set at rest by Apex court of India in Phoolchand v. Gopal Lai, AIR 1967 SC 1470 it was held that so far as partition suits are concerned, if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so as there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented.
(c) Can two final decrees be passed in one civil suit?
A decree may be said to be final in two ways:—
(i) When within prescribed period no appeal is filed against the decree or the matter has been decided by decree of the highest Court.
(ii) When the decree, so far as regards the court passing it completely disposes of the suit.
A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree, the rights of the parties are hilly determined and a decree is passed in accordance with such determination which is final.
Difference regarding preliminary and final decree assume importance in view of provision of section 97 of the Code of Civil Procedure which provides that where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal with may be preferred from the final decree. Thus any party aggrieved by a preliminary decree is under an obligation to file an appeal from such decree, but if he declines to avail of this opportunity, he cannot thereafter dispute the correctness of the preliminary decree when preferring an appeal against the final decree. In other words in the event of failure to prefer an appeal against a preliminary decree, the preliminary decree is deemed to have attained finality.
In Rachakonda Venkat Rao v. R. Satya Bai, AIR 2003 SC 3322 it was observed as "The Explanation to the sub-section makes it clear that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. A decree may be partly preliminary and partly final.
It is settled law that there can be more than one preliminary decree in a suit.
Similarly, there can be more than one final decrees in a suit........... For purposes of
determination whether the said decree was a preliminary decree or a final decree
or a decree partly preliminary or partly final, reference has to be made to the decree itself. It is also important to gather the intention of the parties from the compromise application because it was a compromise decree. "
In Kanji Hirjibhai v. Jivaraj Dharamshi, AIR 1976 Guj. 152, it was held by Gujarat High Court while relying upon judgment in Fatmabai W/o Rasim v. Abubaker Tarmahmed, AIR 1946 Sind 58 that there is no provision in the Civil Procedure Code which prevents the Court from passing two final decrees, it the circumstances of the case so require.
(a) What is the basic principle in deciding amendment application filed by plaintiff? At which stage such an application can be allowed by the court?
(b) Does the court has power to strike out the pleadings of the parties to a suit. If yes, then what are the grounds on which such power can be exercised by the court?
(c) What is meant alternate and inconsistent pleadings? Can the parties to a suit incorporate both of these pleadings at the same time?
(d) "A" files a suit for recovery of one lac rupees against B. Can B claim a setoff against "A" and "C" jointly in his written statement?
(a) What is the importance of "ready and willingness to perform" in a suit for specific performance? What happens when the plaintiff has not averred his readiness and willingness to perform in his pleadings?
(b) Can a Court grant part performance of a contract on the option of (i) plaintiff (ii) plaintiff and defendant both (iii) defendant only? At what stage of litigation can part performance of contract be accepted by a party?
(c) What are the limits within which a court may permit rectification? Whether the relief in this regard is discretionary or mandatory upon the court?
(d) How can a contract be rescinded by a party to it in case the other party is not available and can't be served notice?
(a) Every promise is an agreement. Explain the validity of this statement in the light of the relevant provisions of Indian Contract Act, 1872.
(b) Tarun who is the owner of a mountain bicycle writes a letter to Satish on March 15, 2015 offering to sell him his bicycle for Rs. 50,000. The letter also mentions that the offer will be open till 20th March, 2015. On 18th March, 2015 at 3:50 p.m., Satish posts a letter of acceptance to buy the bicycle which reaches Tarun at 8:30 p.m. the same day. Before that at 1:10 p.m. Tarun had already posted a letter of revocation which reaches Satish at 5:30 p.m. Critically examine whether a binding contract has been entered into between Satish and Tarun citing relevant provisions of Indian Contract Act, 1872.
(c) What are the rights of an unpaid seller under Sale of Goods Act? How and • when can such rights be exercised? Also state briefly the consequences of the exercise of such rights by the unpaid seller.
(d) What are the circumstances that could lead to the dissolution of a partnership firm? Does death of one of the partners dissolve the partnership firm automatically? In a situation where a partnership firm is constituted by two partners only what will be the effect of the death of one of them on the partnership firm?
(a) What is Secondary evidence? Under what circumstances it can be given? Is uncertified copy of public document admissible if original has been destroyed?
(a) A 28 year old document is filed by plaintiff in a suit. Document is exhibited in evidence after three years. Will any presumption be available to such document in said suit?
(b) "The Rent Act" regulates the incidence of tenancy and inter se rights and obligations of the landlord and tenant. Comment in the light of the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973.
(c) Write notes on following:
(i) Objective of the Punjab Courts Act, 1918;
(ii) Fact in issue and relevant facts;
(iii) Leading questions;
(iv) Res gestae;
(v) Disproved and not proved.