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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 purpose 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 judicial 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 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) rules 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 SMALL CAUSE COURTS

1 . Provincial Small Cause Courts— The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887) or under the Berar Small Cause Courts Law, 1905 or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act or Law or to Courts in 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, rules 5 to 12 (evidence);

Orders XLI to XLV (appeals);

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

Order LI.

STATE AMENDMENTS

Uttar Pradesh.— In its application to the State of Uttar Pradesh in rule 1, in clause (b) after the words "provides for pronouncement at once of judgment" add "and rule 5".

[U.P. Act 30 of 1974].

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.

APPENDIX A

PLEADINGS

(1) TITLES OF SUITS

In the Court of

A.B. (add description and residence) Plaintiff

against


C.D. (add descritption and residence) Defendant

(2) DESCRIPTION OF PARTIES IN PARTICULAR CASES

[The Union of Inida 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.B. (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.

(3) PLAINTS

No. 1

Money Lent



(Title)

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

1. On the . . . . . . . . . . . . . . . . day of 19 . . . . . . ., . . . . . . . . . . . . . . . . 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 . . . . . . . . . . . . . . . .19 . . . . . . . .

[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 prupose of court-fees is . . . . . . . . . . . . . . . .rupees.

6. The plaintiff claims . . . . . . . . . . . . . . . .rupees, with interest at . . . . . . . . . . . . . . . .per cent. from the . . . . . . . . . . . . . . . .day of . . . . . . . . . . . . . . . .19 . . . . . . . .

No. 2


Money Overpaid

(Title)


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

1. On the . . . . . . day of. . . . 19. . . 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 paid 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. . . . . . . . .19. . . . . ., 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 or 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 19. . . . . 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. . . . . . . 19. . . , 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 Dependent's Request, and not Accepted



(Title)

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

1. On the . . . . . . day of . . . . . . 19. . . , 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 . . . . . . 19. . . , 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 . . . . . . 19. . . ., 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 defendant 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 . . . . . . 19. . . ., 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. 1, 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 . . . . . . 19. . . , and the . . . . . . day of 19. . . 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 . . . . . . 19 . . . , 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. . . 19 . . . , until the day of . . . . . . 19 . . . , 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. 1.]

4. The plaintiff as executor of X. Y., claims (Relief claimed].

No. 10


On an Award

(Title)


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

1. On the . . . . . . day of . . . . . . 19 . . . , 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 . . . . . . 19. . . , 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 . . . . . . 19. . . , 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 . . . . . . 19. . . , 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 guarantee the punctual payment of the rent.

3. The rent for the month of . . . . . . 19. . . , 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. 1, 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 . . . . . . 19. . . , the plaintiff and defendant entered into an agreement, and the original document is hereto annexed.

[Or, on the . . . . . . day of . . . . . . 19. . . , 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 . . . . . . . . . . 19. . . , the plaintiff, being then the absolute owner of the property [land 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 sun agreed upon.

3. The defendant has not paid the money.

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

No. 14

Not Delivering Goods Sold



(Title)

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

1. On the . . . . . . day of . . . . . . 19. . . , the plaintiff and defendant mutually agreed that the defendant should deliver [one hundred barrels of flour] to the plaintiff on the. . . ..day of. . . 19. . . , and that the plaintiff should pay therefor . . . . . . 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 . . . . . . 19. . . , 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 . . . . . . 19. . . . , 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 . . . . . . 19. . . , 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 . . . . . . 19. . . , the plaintiff and defendant mutually agreed that the plaintiff should employ the defendant at an [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 . . . . . . 19. . . , 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. . . 19. . . , 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 . . . . . . 19. . . , 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 unworkmanlike 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 . . . . . . 19. . . , the plaintiff took E.F. into his employment as a clerk.

2. In consideration thereof, on the . . . . . . day of . . . . . . 19. . . , the defendant agreed with the 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, subject 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 . . . . . . 19. . . , and the . . . . . . day of 19. . . , 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 . . . . . . 19. . . , 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 . . . . . . 19. . . , during the said term, E.F., who was the lawful owner of the said house, lawfully evicted the plaintiff therefrom, and still withhold 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 . . . . . . 19. . . , 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 . . . . . . 19. . . , [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 19. . . ,] 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 . . . . . . 19. . . , 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.

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