A Questions CPC With Ans Rough

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Group-A Code of Civil Procedure

Group-A

Code of Civil Procedure

May 19, 2000

1. A case has been filed by a government servant Mr. Abdul Karim, Tashilder of the

Settlement Office, Tejgoan, Dhaka in the 3rd Court of Assistant Judge, Dhaka for

declaration that he has been dismissed from service without a proper show cause notice.

He has impleaded Government of Bangladesh and D.C. Dhaka as defendants. You have

been asked by your senior to challenge the maintainability of the Suit.

a) Please write your opinion as to-

I. Which is the relevant provision under Civil Procedure Code for making the

application?

II. As what stage of the Suit you are to file the petition?

III. What are the grounds on which you can challenge the Jurisdiction?

b) Please draft a short application giving the grounds on which you challenge the

Jurisdiction. Your draft ought to contain proper heading, Cause Title, reference to the

relevant provision of the Code and relevant facts, appropriate grounds and prayer.1

[May 19, 2000]

Answer to the question no: 1(a)

In the given problem we see that Mr. Abdul Karim, Tashilder of the Settlement Office,

Tejgoan, Dhaka, has been dismissed. Mr. Abdul Karim has filed a suit in the 3rd Court of

Assistant Judge, Dhaka on the basis that he has been dismissed from the service without a

1 Questions of the same nature has also been given in the examinations of December

1997, December 1998, 15th June 2001, 8th March , 2002

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proper show cause notice. He impleaded Government of Bangladesh and D.C. Dhaka as

defendants.

My learned senior asked me to challenge the maintainability of suit and my opinion is askedunder three headings.

The relevant provision under Code of Civil Procedure for making the application is Order 7,

rule 11(d) which says that the plaint shall be rejected where the suit appears from the

statement in the plaint to be barred by any law. Thus if a suit appears from the statement in

the plaint that the suit is barred by any law then the plaint will be rejected.

Here, the plaintiff Mr. Abdul Karim is a government servant and his suit is for declaration

that he has been dismissed without any show cause notice. Thus Section 4 of the

Administrative Tribunal Act, 19802comes into effect3and must be mentionable here.

Section 4 of the Act of 1980 clearly implies that a government servant must file a suit

regarding his service in the administrative tribunal. Because an Administrative Tribunal has

exclusive jurisdiction to hear and determine an application in respect of any action taken in

relation to the person who is in the service of the Republic or of any statutory publicauthority.

Moreover, from the plaint it is clear that Mr. Abdul Karims claim is related with an

administrative action. It was held in Abdul Malek Sawdagar Vs. Md. Mahbubey Alam [BLC

2005 (AD) 53] that the question whether the plaint is liable to be rejected being barred by law

must be apparent from the statement made in the plaint itself and not from any other material

other than that has been put in the plaint.

2 Section 4(1) of the Limitation Act 1980 provides the following-

4. (1) An Administrative Tribunal shall have exclusive jurisdiction to hear and determine applications made byany person in the service of the Republic or of any statutory public authority in respect of the terms andconditions of his service including pension rights, or in respect of any action taken in relation to him as a

person in the service of the Republic or of any statutory public authority.

3 Here, Section 11 of the Limitation Act 1980 is mentionable which provides following-

11. The provisions of this Act, shall have effect notwithstanding anything contained in any other law for the

time being in force.

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Therefore, the plaintiff falls under the jurisdiction of the Administrative Tribunal and his suit

is barred by the Administrative Tribunal Act 1980. He cannot file the suit under the Civil

Procedure Code as per Order 7, rule 11(d) and is liable to be rejected.

Case- Shaikh Ansar Ali & others Vs. Md. Tufazzal Hossain & others, 55 DLR 2003, 211.

There is no hard and fast rule when an application for rejection of plaint is to be filed but

ends of justice demands that it must be filed at the earliest opportunity.

Case- Kazi (Md.) Shahajan and another Vs. Md. Khalilur Rahman Madbar and others, 54

DLR 2002, (AD) 125

Thus, I have to file the petition at the earliest opportunity and first hearing of the suit is the

appropriate stage for filing the petition.

The grounds on the basis of which the jurisdiction of the Court can be challenged are as

follows:-

First ground is, the action which has been taken in relation with Mr. Abdul Karim falls under

the jurisdiction of Administrative Tribunal as per section 4 of the Administrative Act, 1980

and barred under the same Act;

Second ground is, from the plaint it is appeared that the action has been taken in relation to

Mr. Abdul Karim who is a government servant thus barred by the Administrative Act 1980;

Finally, as per Oder 7, rule 11(d) if the above mentioned two grounds are satisfied then the

ordinary Civil Court has no jurisdiction.

No suit lies to enforce a right under the general law where the right is created by a statute and

prescribes the exclusive remedy thereof.

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Case- Rama Rao vs. Gopal Krishna Murthy, AIR 1957

(b) A short application giving the grounds on the basis of which the jurisdiction of the Court

can be challenged is drafted below :

In the Third Assistant Judge Court, Dhaka

Civil Suit No. 12/2000

1. Mr. Abdul Karim

S/O Jakis Hossain

Mirpur, Dhaka

.Plaintiff

Versus

1. District Commissioner, Dhaka

2. The Government of Bangladesh

Defendants

Application for rejection of plaint under

Order 7, rule 11 (d) of the Civil Procedure

Code.

The defendant petitioner most respectfully states as follows:

1. That the plaintiff has filed a suit as he has been dismissed from service without aproper show cause notice.

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2. That the suit is filed against the District Commissioner, Dhaka and against the

Government of the People Republic of Bangladesh in the Third Assistant Judge

Court, Dhaka.

3. That the plaintiff is Tashilder of the Settlement Office, Tejgoan. Therefore he is a

government service holder.

4. That a government service holder cannot file a suit for an action taken in relation

of him in the Third Assistant Judge Court, Dhaka as the Administrative Tribunal

Act 1980 provides in Section 4(1) that such an action is under the exclusive

jurisdiction of Administrative Tribunal to be heard and to be determined.

5. That the dismissal without show cause notice is an action in relation to the

plaintiff as per section 4(1) of the Administrative Tribunal Act 1980 and falls

under the exclusive jurisdiction of the Administrative Tribunal. Therefore, the suit

is barred by law as per Order 7, rule 11 of the Code of Civil Procedure.

6. That from the plaint it is clear the suit is not maintainable as the suit is barred by

law. Therefore the plaint is liable to be rejected.

7. That the dismissal does not fall under the jurisdiction of the Third Assistant Judge

Court, Dhaka and the plaintiff did not file his suit in proper forum. Therefore, the

suit is not maintainable and is liable to be rejected.

In these circumstances it is therefore humbly prayed that your honour would be

pleased to grant the application and reject the plaint for the ends of justice and foract of this kindness the defendant petitioner shall ever prey.

Verification

Verification that the statement made herein

above are true to the best of my knowledge

and information. Whereof, I sign this

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verification on this on15th April, 2001 at

11:00am before the learned advocate.

Signature of Verifier

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2. Asif, Ahsan and Ananda entered into a partnership for running transport business.

Asif was the Managing Partner. In course of the business Asif started making secret

profits and for over six months did not give the accounts to other partners and did not

deposit the money in the joint bank account of the partnership firm maintained in Janata

Bank, Natore. Ahsan and Ananda filed a Suit for dissolution of partnership. Ahsan and

Ananda have already instructed you about the nature of the partnership business having

six trucks with an earning of about Tk. 50,000/- per month in average after paying all the

outgoings in the form of salary, wages and maintenance. Your clients suggest Truck

Owners Syndicate, Natore to be the receiver. You are now required to prepare a petition

for appointment of receiver quoting the relevant provision in the cause title. Draft the

Petition. [May 19, 2000]

Answer to the question no. 2:

Asif, Ahsan and Ananda entered into a partnership for running transport business. But

Ahsana dn Ananda filed a dissolution of partnership because of Asifs dishonesty. Ahsan and

Ananda suggest that Truck Owners Syndicate, Natore to be receiver.

According to Kerr4 Receiver is an impartial person appointed by the court to collect and

receive, pending the proceedings, the rents, issues and profits of land, or personal estate,

which it does not seem reasonable to the court that either party should collect or receive, or

for enabling the same to be distributed among the persons entitled. In other words, he is an

indifferent person between the parties to a cause, appointed by the court to receive and

preserve the property or fund in litigationpendente lite, when it does not seem reasonable to

the court that either party should hold it.

Though the Code of Civil Procedure does not provide any definition of receiver but Order

40, rule 1 provides for the appointment of receiver by the court. A petition for appointment

of receiver is drafted below.

4 Kerr on Receivers (1978), p. 3.

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Point to be noted that the defendant Asif started making secret profits and for over six months

did not give the accounts to other partners and did not deposit the money in the joint bank

account. The earning of the partnership business is of about Tk. 50,000/- per month in

average after paying all the outgoings in the form of salary, wages and maintenance. Thus

the suit value is of Tk. 3, 00,000/- [6 X 50,000] and suit falls under the jurisdiction of SeniorAssistant Judge Court.

In the Senior Assistant Judge Court, Natore

Civil suit no.-10/2000

1. Ahsan

2. Ananda

plaintiff

Versus

1. Asif

..Defendant

Application for appointment of receiver

under Order 40, rule 1 of the Code of

Civil Procedure 1908.

The petitioner most respectfully states as follows :

1. That Ahsan and Ananda, the plaintiffs, entered into a partnership for running transport

business with the defendant, Asif.

2. That the defendant Asif was the Managing Partner. In course of the business the

defendant Asif started making secret profits and for over six months did not give the

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accounts to other partners and did not deposit the earning of about Tk. 50,000/- for the last

six months in the joint bank account of the partnership firm.

2. That the defendant Asif did notAhsan and Ananda filed a Suit for dissolution ofpartnership. Ahsan and Ananda have already instructed you about the nature of the

partnership business having six trucks with an earning of about Tk. 50,000/- per month in

average after paying all the outgoings in the form of salary, wages and maintenance.

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3. One Khorshed Alam filed a Suit for partition in the first Court of Subordinate Judge,

Dhaka being Partition Suit No. 5/2000 against Abdul Malek and Joynal Abedin and other

co-sharers in the Suit property valuing the property at Tk. 5,00,000/-. Abdul Malek, a cor-

sharer by purchase files a T.S. No. 8/2000 against Joynal Abedin for declaration of Title

and confirmation of possession in 1st Assistant Judge, Dhaka.

a) Under the above situation which of the following courses would you advice your

client.

I. Partition Suit should be heard first and the title Suit should be stayed till the decision in

the partition Suit.

II. Title Suit should be heard first and the partition Suit should be stayed till the

decision in the title Suit.

III. Transfer Partition Suit from Subordinate Judges Court to Assistant Judeges

Court, where the title Suit is pending.

IV. The Title Suit should be transferred to the Court of Subordinate Judge whre

the Partition Suit is pending.

b) Draft a petition accordingly.

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October 27, 2000

4. a) The Plaintiff Abdul Muhith filed T.S. No. 89/2000 in the 2 nd Court of Sub-Judge,

Dhaka for declaration of title to the suit property. The Defendant Noor Alam filed another

suit being T.S. No. 342/2000 with a prayer for a declaration of title along with a prayer

for partition. Both the suits relate to the same property and the parties of both the cases

are the same. Your client Abdul Muhith seeks your advice whether both the suits can be

tried analogously. Your Client obviously wants to save time and money. Give your advice

and draft a petition for analogous hearing quoting the relevant section in the cause title.

Also state the grounds in your petition for analogous hearing.

b) Sonali Bank filed a money suit before the learned Sub-Judge and Artha Rin Adalot,

Narayanganj against M/s. Alam Brothers being Money Suit No. 91/99 for Tk. 2,20,446/-.

The suit was fixed for hearing on 16.10.2000. Due to the failure of the bank to take step

in the suit it was dismissed for default on 16.10.2000. You are now instructed by your

Senior to draft a petition for restoration of the said suit. Please make a draft. You are

expected to quote the relevant section and give the reasons and the grounds for restoration

of the suit.

5. Please state the meaning of Lis-pendens. The Plaintiff Mr. Haque obtained an ex-parte

decree against the Defendant in a T.S. No. 455/2000. During the pendency of the Suit

your client purchase the suit land from the Defendant being plot No. 116 and 117 at

Mouza Kakrail, Dhaka vide two Kabalas without any knowledge about the suit. What ishis remedy now? Can he make an appeal? And if so, under what Section? Though he was

not a party to the suit can he maintain the appeal? Draft Memo mentioning the relevant

section in the cause title. Give your reason and state those as grounds in your appeal.

6. Mr. Hafizur Rahman as M.D. of M/s. Clean Food Ltd. Caterer, Bangladesh Railway,

as plaintiff filed T.S. No. 14 of 2000 against the defendants, namely the Secretary,

Ministry of Communication, Railway Refreshment Room, Chittagong for a declaration

that the order dated 26.01.2000 issued by the Chief Commercial Manager, Bangladesh

Railway (Defendant No. 3) canceling the plaintiffs license agreement dated 26.06.98 for

catering service to the 1st Class and air condition class passenger of Dhaka-ChittagongRailway is illegal, without jurisdiction and inoperative.

Please Note that the catering agreement was made for a period of there years and the

same was revocable at the option of any of the parties and that the caterer in their tender

stated that they will abide by the terms and conditions of the agreement and also by any

change in the conditions meade3 by the Railway subsequently. The licensing agreement

was cancelled without any notice or any fault.

a) Please draft a petition for an injunction restraining the defendants from interfering

with the plaintiff in his catering services as per original license agreement.

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b) Can the plaintiff obtain an order of injunction? Please state the probable argument

both for or against the petition.

June 15, 2001

7. a) Ka is an inhabitant of Chittagong. He assaulted Kha at Dhaka. Where Kha caninstitute a suit for compensation against Ka? Discuss in details with relevant laws.

b) Kamal while residing at Chittagong made defamatory statement against Jamal in

Dhaka. Jamal intends to institute a suit for compensation against Kamal determine where

the suit lies. Discuss with reasons. Would your answer be any different if such statement

was published through news paper all over the country?

c) You on behalf of your client Kamal have filed a money suit in the 1st Court of Sub-

Judge, Dhaka for recovery of Tk. 10 lacs against Jamal. In the meanwhile you have come

to learn that Jamal is trying to dispose of his only property measuring 3 kathas of land.What step would you consider to be taken in order to ensure the execution of the future

decree in the money suit? Prepare a petition to that effect.

8. A case has been filed by a government servant Mr. Abdur Rhaim, a L.D. Assistant of

the Collectorate, Dhaka in the 2nd Court of Assistant Judge, Dhaka for declaration that he

has been dismissed from service without any proper show cause notice. He has impleaded

Government of Bangladesh and D.C. Dhaka as defendants. You have been asked by your

senior to challenge the maintainability of the suit. Please draft a petition.

9. Please state the meaning of Lis-pendens. The Plaintiff Mr. Sharif obtained an ex-partedecree against the Defendant in a T.S. No. 201/2000. During the pendency of the Suit

your client purchase the suit land from the Defendant being plot No. 10 and 11 at Mouza

Shantinagar, Dhaka vide two Kabalas without any knowledge about the suit. What is his

remedy now? Can he make an appeal? And if so, under what Section? Though he was not

a party to the suit can he maintain the appeal? Draft Memo mentioning the relevant

section in the cause title. Give your reason and state those as grounds in your appeal.

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October 10, 2003

10. a) Define Decree

b) A files Title Suit No. 1 of 2003 against B on 10.01.2003 for declaration of title in a

house and recovery of possession thereof in the 1st Court of Assistant Judge, Dhaka. The

Court finds that the relief claimed in the plaint is undervalued and requites the plaintiff to

correct the valuation by 20.01.2003. The plaintiff fails to do so. The Court rejects the

plaint by an order passed on 23.01.2003. What is the remedy available for the plaintiff, if

any?

c) Title suit No. 1 of 2003 is fixed for preemptory hearing on 20.01.2003. The plaintiff

did not appear when the suit is called on for hearing but the defendant appears. The Court

dismisses the suit for default. Draft an application for restoration of suit.

11. a) The Plaintiff Jamaluddin filed T.S. No. 63/2003 in the 2nd Court of Joint

District Judge, Dhaka for declaration of title to the suit property. The Defendant

Nuruddin filed another suit being T.S. No. 100/2003 with a prayer for a declaration of

title along with a prayer for partition. Both the suits relate to the same property and the

parties of both the cases are the same. Your client Jamaluddin seeks your advice whether

both the suits can be tried analogously. Your client obviously wants to save time and

money. Give your advice and drat a petition for analogous hearing quoting the relevant

section in the cause title. Also state the grounds in your petition for analogous hearing.

b) Janata Bank filed money suit before the learned Joint District Judge and Artha Rin

Adalat, Jessore against M/s Kamal Enterprise being Money Suit No. 19/2002 for Tk.

4,40,400/-. The suit was fixed for hearing on 11.10.2003. Due to the failure of the Bank

take step in the suit it was dismissed for default on 11.10.2003. You are now instructed

by your Senior to draft a petition for resolution of the said suit. Please make a draft. You

are expected to quote the relevant section and give the reasons and the grounds for

restoration of the suit.

12. a) The plaintiff in a suit is your client. He insists that there should be an order of

attachment before judgment of the property of the defendant and your client gives the

reasons behind his insistence. You are also convinced that a prayer should be made to the

Court to that effect. Draft an application seeking an order of attachment before Judgment

of the property of the defendant.

b) What points you will press before the Court in support of your application in theabove noted suit?

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August 27, 2004

13. Define any four of the following

a) Res judicata

b) Order and decree

c) Judgment debtor

d) Attachment before judgment

e) Cause of action

f) Issue

g) Set off

14. Up to what stage an application of plaint can be made in a suit? Can it be filed during

appellate stage?

Draft a petition for amendment of plaint.

15. a) When the court can exercise inherent power? Discuss

b) Karim filed a suit in the court of Assistant Judge, Dhaka praying for declaration of

title and confirmation of possession of the suit land against his neighbor Rahim.

After filing of the suit Rahim threatens to dispossess him from the land. Draft an

application for temporary injunction mentioning appropriate provisions of law.

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April 8, 2005

16. Explain any four of the following :-

a) Legal Representative

b) Mense profits

c) Cause of action

d) substituted service

e) Pleadings

f) Mandatory injunction

g) Local investigation

17. What do you mean by jurisdiction and suits of a civil nature? Explain

mentioning the specific provision of law. What are the grounds under which a plaint can

be rejected? Draft a petition for rejection of plaint mentioning the relevant provision of

law.

18. (a) Under what provision of law an order of temporary injunction is passed by

the court? what are the considerations that weigh in the mind of the Court before issuing

an order of temporary injunction?

(b) Khoda Box, the plaintiff in a suit for declaration of title in the disputed property, obtained

in his favour an order of temporary injunction restraining the defendants from pulling

down the boundary wall till the disposal of the suit. Sometime thereafter the defendants

pulled down the boundary wall by violating the order of temorpary injunction. What legal

steps would you find necessary for redress of Khoda Boxs grievance and under what

provision of law?

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February 25, 2006

23. (a) Discuss the provision of Amendment of Plaint in the Code of Civil Procedure.

(b) Prepare an objection on behalf of the Defendant against an application for amendment

of plaint filed by the plaintiff that charged the nature and character of the suit property.

24. Prepare a plaint for declaration of title and permanent injunction on behalf of A

against B who are trying to dispossess A from his paternal property with fake oral gift.

25.(a) What are pleadings and what are the essential ingredients of plaint and writtenstatement?

(b) What are the different types of Civil Court exists in Bangladesh? What are the

remedies available against any order passed by the District Judge under section 115 of the

Code of Civil Procedure regarding any interlocutory order?

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December 9, 2006

26. Explain and illustrate any four of the following:-

(a) Cause of action

(b) Legal representation

(c) Mandatory injunction

(d) Res judicata

(e) Attachment before judgment

(f) Amendment of pleadings

(g) Substituted service

(h) Inherent power of the Court

27. (a) What do you mean by jurisdiction of the Court and Suits of a Civil Nature?

Explain with reference to the specific provisions of law.

(b) What are the grounds on which a plaint can be rejected? What is the legal significance

of rejection of plaint? Is there any remedy for the plaintiff against the rejection of his

plaint?

28.(a) Under what provision of law an order of temporary injunction is passed by the

Court? what are the considerations that weigh in the mind of the Court before issuing an

order of temporary injunction?

(b) Rahim, the defendant in a suit instituted by Jamal, pulls down the disputed boundary

wall in violation of the order of temporary injunction passed against him by the Curt.

What legal steps Jamal may take for his redress against Rahim and under what provisions

of law?

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June 2, 2007

19. Explain and illustrate any four of the following :-

a) Legal Representative

b) Ex-parte decree

c) Cause of action

d) Rejection of the plaint

e) Mandatory injunction

f) Local investigation

g) Set off

h) Receiver

20. What do you mean by amendment of pleadings? (b) What are the conditions that

regulate the grant of amendment of pleadings? (c) Can there be an amendment of

pleadings after the judgment by the trial Court is pronounced?

21. X as plaintiff filed a suit in the 1st Court of Joint District Judge, Dhaka against

Y for declaration of title and recovery ofkhas possession on a plot of land from which he

was forcibly dispossessed by Y suddenly fell ill and could not take any step when the suit

was called on for hearing as a result of which the suit has been decreed ex-parte against

Y.

Y engages you to take necessary steps for setting aside the ex-parte decree.

Fully discuss the different courses open to Y to get the ex-parte decree set aside. What,

according to you, should be the most effective and efficacious course for Y for setting

aside the ex-parte decree.

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February 29, 2008

29.What is meant res judicata and what conditions are to be fulfilled for applying the

principle ofres judicata? Discuss with illustration.

30.Up to what stage an application for amendment of plaint can be filed and when the

court will refuse to allow an application for amendment of plaint? Discus

31.(a) The plaintiff is a suit is your client. He insists that there should be an order of

attachment before judgment of the property of the defendant and your client gives the

reasons behind his insistence. Your client gives the reasons behind his insistence. You are

also convinced that a prayer should be made to the court to that effect. Draft an

application seeking an order of attachment before judgment of the property of the

defendant.

(b) What points will you press before the court in support of your application in the above

noted suit?

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August 29, 2008

32.What is the purport of section 10 the Code of Civil Procedure? Discuss the conditions

that are to be fulfilled for an order of stay of suit under the said section.

33. Discuss the provision of Section 20 of the Code of Civil Procedure. Where the

Government may be sued for a claim of damages for tortuous activity of a Government

employee.

34.Discuss the situations in which the court can exercise inherent power under section

151 of the Code of Civil Procedure. State in brief when this power can be exercised by

the trial court even though the remedy of appeal is available.

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