Indian bare acts




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[N.B.—Where the suit is by a beneficiary, the plaint may be modelled mutatis mutandis on the plaint by a legatee.]

No. 45

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 particular 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. 1.]

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 . . . . . . [2][an order for the balance].

No. 46

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);

(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]. [444][together with mesne profits].

No. 47

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 referred 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.

No. 48


Specific Performance (No. 2)

(Title)


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

1. On the . . . . . . day of . . . . . . 19. . . , 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 . . . . . . 19. . . , the plaintiff Tendered rupees to the defendant, and demanded a transfer of the said property by a sufficient instrument.

3. On the . . . . . . day of . . . . . . 19. . . , 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.

No. 49


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 4 and 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, omits 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 plaint or any of them.

Limitation—The suit is barred by article . . . . . . or article . . . . . . . . .of the second schedule to the [445][Indian 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.

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 . . . . . . 19. . .



8. The defendant satisfied the claim by payment after suit to the plaintiff on the . . . . . . day of 19. . . .

No. 2


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.

No. 3

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.

No. 4

Defence In Any Suit 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

1907 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.

No. 5

Defence In Suits For Injuries Caused By Negligent Driving



1. The defendant denies that the carriage 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.

No. 6

Defence In All Suits For Wrongs



1. Denial of the several acts [or matters] complained of.

No. 7


Defence In Suits For Detention Of Goods

1. The goods were not the property of the plaintiff.

2. The goods 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.

No. 8

Defence In Suits For Infringement Of Copyright



1. The plainiff is not the author [assignee, etc.]

2. The book was not registered.

3. The defendant did not infringe.

No. 9


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.

No. 10

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 the defence, and says that the acts complained 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.]

No. 11


Defence To Suit For Foreclosure

1. The defendant did not execute the mortagage.

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 scheduled to the [446][Indian Limitation Act, 1877 (15 of 1877).]

4. The following payments 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.

No. 12

Defence To Suit For Redemption



1. The plaintiff's right to redeem is barred by article . . . of the second schedule to the [447][Indian 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 too 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.)

No. 13


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 [448][Indian Limitation Act,] accord and satisfaction, release, fraud, etc.)

No. 14

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 . . . . . . . .19 . . . , 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.

No. 15

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 [449][Indian Succession Act, 1865 (10 of 1865)] [or of the [450]Hindu Wills Act, 1870 (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].

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.

No. 16


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

Summons For Disposal Of Suit (O. 5, R. 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 . . . . . . . . . 19 . . . . . ., 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 . . . . . . . . . of . . . . . . . . . 19 . . . . .

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.

No. 2


Summons For Settlement Of Issues (O. 5, R. 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 persons able to answer all such questions, on the . . . . . day of . . . . . . . . . 19. . . . ., at . . . . . . . . . o'clock in the . . . . . . . . . noon, to answer the claim; [451][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 counter-claim, 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 counter-claim, you shall enter such documents in a list to be annexed to the written statement].



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 . . . . . . . . . 19....,

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.

No. 3


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 . . . . . . . . . 19... 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 of 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 . . . . . . . . . . . . 19 . . . .

Judge.

[452][No. 4



Summons in a Summary Suit

(Order XXXVII, Rule 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 serve upon you a summons for judgment at a hearing of which you will be entitled 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 a 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 . . . . . . . . . 19...

Judge.

[3][No. 4A



SUMMONS FOR JUDGMENT IN A SUMMARY SUIT

(Order XXXVII, Rule 3)

(Title)

In the . . . . . . . . . Court, at . . . . . . . . . suit No. . . . . . . . . . of 19...



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 19..., 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.

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