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·THE AJMER LAW DIGEST.

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·THË
AJMER LAW DIGEST.
(Cıvıl Criminal and Revenue )
Complete up to 1936.
BEING
A digest of all cases reported in all solumes of AJMER MERUARA LAW
JOURNAL up to 1936 (e & volumes I VI and 1934 1936) and its
SUPPLEMENT (1924 1927) and other cases from Ajmer Meruara
decided by the Judicial Committee of the Privy Council on
appeal or the High Court of Judicature at Allahabad on
reference which have been reported in other
LAW REPORTS
CONTAINING
References ader appropriate sections to the Notifications published in the
MER MERWARA LAW JOURNAL
BY
OTI SWARUP GUPTA
ADVOCATE AJMER
Published by
SECRFTARI
BAR ASSOCIATION, AJMER
(Registeret ler Act 17 of 1560)
1937

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·TABLE OF CONTENTS (WOTE-Leder a Distahe the subject Hint Lau las been placed after I instead of G) Column (olumn 16 1 1 1 16+ Abandonment Abatement Abu Vunic palli It use Accomplice See 1114 tat 5 113 Iccounts Achn ledgment See Lmmattion Ills Acqucence 1dmissi! lity Seen 15 011 Loniersion Seu Toit-Cont rs101 los cooperative Credt Soc et es ici Court Fees Court Tees Act Crimpal 1 rocedure Code Crim nal Trial (mnul Trie Act Custom 165 165 166 171 194 206 06 لا ܚܝܙ ما Dan hes 09 Idm ss on 3 Slenn ict-$S ) Id pt on 3 See 701t-Di 1155 Dangerous Drugs ict Del tot ani Cred for Decree Decd Divorce Act Document See Deed 09 202 210 211 213 213 7 7 8 17 19 21+ 214 216 20 Easement Tasements Ict Encroachment See Tort ncroachment I udence Act Liecut on I vecutor 25 26 216 232 234 31 3. 36 35 See Honi Liu 1 loption Adverse Possess on Ajmer Alienat on of Land Regulation Ajmer Courts Ajmer Courts Regulation (I of 1877) Ajmer Courts Regulat on (IV of 1926) Ajmer Government Wards Regulation Ajmer Land and Revenue Regulatſon jmer Land and Revenue Rules Ajmer Laws Regulation Ajmer Vunic al ties Regulation (1877) jmer Vun cipales Regulation (125) 1jmer Regulations Ajmer Rural Boards Regulation lahabad High Court Appeal Ippellate Court Irbitration Irms Act Vitestation Bar Councils Ict Benami Bond Burden of 1 roof Cantoument Act Cause of Action Cess Child Varr age Restra nt Act Children Act Cill rocedure Code Companies Act Contract Contract Act 37 37 38 41 41 Factories Act Gambling Ict General Clunes Ict Grit Guardian anil Wards Ict 236 236 237 238 Hndu law 4. 43 241 211 243 +3 43 ++ 45 45 46 Impros ements See Prullut 11/10111! nts Income Tax Ict Injunction Insolenci Act See Prutural Insoltancy Act Interest Interpretat on of Stute Jail Vanual ] jos Ju l, ment Junction KI ata Set D btor and Cruditor +3 216 46 47 253 253 253 4) 15+ 25+ 15+ 155 ·ni TABLE OF CONTENTS-Contd iv Column Column 254 310 hlata Baq See laut it;011 Act--S 19 Land Acouston Act Landlord and Tenant Legal Pract toner Legal I ractitioners Act Libel Sec Tiivel Limitation Lim tat on AC I unacy Act 234 255 257 257 2.53 311 311 313 313 313 314 320 327 258 250 375 275 328 332 332 33 334 Malc ous I (o ecut on See Tort - 410 Prosecution Vaster and servant Molan medan la Mones order Mortgage Mount Abu Musalman Waqi Act Naturalisat on Act New Lay See Practice Neu Lane 175 773 78 278 279 279 334 334 Pre emption See Ajmer Lars Regulation Irincipal and Agent Irincipal and sure y Irry Counc! lossession I rouideat l'unds Act I rovincial Insolvency Act krovinc al Small Causes Courth Act abc Gambl ng Act Ra lways Act Ra lway Receipt Reformatory Schools Act Reb stration Act Regulation See Amer Regulations Kes Jud cita See CPC-S 11 Review Sales of Goods Act Salt Act Scheduled Districts Act Set off Si ebaits Small Causes Courts Act See ProuincialSCC Act Specific Rel el Act Starop Act Succession Act Suit Tort Touis Transfer of Properly Act Trespass See Tort in 155 Usurous I cans Act Usary Law Repeil Act Vakafatnam 280 79 334 335 335 336 336 336 79 281 281 781 Onths Act Onus of proof See Burion of proof Opium Act Ord nance (ill of 1)3 ) Partition Partnership Partnershup Accounts I artnerslip Ict I art I erform TCE I arty 11 I enal lol 1 urza 125 See Suho 1 efinuu Pizin 336 338 341 343 281 292 282 284 34 795 -95 ..)3 343 342 350 361 361 363 1 lea inks Sec Pratte -Perings 1 olice Ict 36 Words and I hrases Hlorhmen s Compensation Act 303 364 I ra tice ·ABBREVIATIONS EXPLAINED 1 Reports and other Abreviations -The abreviations generally used in all Digests and Lau Publications have been adopted for the AJVIER LATI DIGEST The following abreviations and signs hase heen particularly adopted for the AJVER I TW DIGEST ? Abrestations AVLI ILI SU PPTT сс D) D11 GS Additional District Judge Ajmer Verwa? Ajmer Verwara Law Journal Ajmer Verwara Law Journal Supplement Chief Commissioner Ajmer Verwara District Judge District Vagistrate In parenthesis alter the number of the pate indicates ilint the reference to the page in the General Sectrost of AJMER MICRWARATAN JOURNAI Ajmer Verwara I aw Journal Jud cial Commissioner Ajmer Verwar? Journal Section of Ajmer Verwarı I aw Journal Notification Section of Ajmer Verwara Law Journal Ajmer Merwara Law Journal Supplement J JC JS NS S Signs The case is not reported in full but only the lat Pomt arising in the case is published Such cases are gien in a separate section captioned Short Notes of important Judgments an Volumes III to 11 of AJMER VERWARI LAL JOURNAL In Volumes III IV and I thic pies of this se trou hrie consecutive paging In Sol V tlie pages of this section luzie separate poging for the three different parts uh ch comprise ilus volume In solumes for 1934 1935 and 1936 there is sepinte section for Lax l'oints The Law Pomts will be found with the Reports of cases The case has been Distinguished or Yet Follou and in some subse quent case. Such cases itse also been put wschuirt bracles Relore the head lines of 7c7e in the DIGEST refer to the number of the head note of the case in the VMER VIFRILARA LAW JOURTAI. or its SUPPI EVENT Vuthe page of a case mula with an Asteric (*) refer to the first second er lurd part of sil! containing 11 Short Yates of important Judgments torr (1) (b) (c) etc or (1) (2) (3) etc (1) (11) or (111) ·LIST OF AJMER RULINGS, Destingmshed, Not followed, Relred ctc. IN SUBSEQUENT AJMER CASES 61-Ref 1936 ) 103 -Yote 1-Foll 1934 ) 1 1934 AM L 1931 11 roll 1936 ) 143 -1-Ref 1936 J 177 -30 - Tipi 1935 ) 22 -126 -Ref 1036 J 201 ----Ref 1936 201 1935 A M L J 1915 11-Rel 1936 181 97 Ref 1936) 157 Supplement. 1925 S 6-ot roll 1936 ) (8 - 9- Dis 1476 + --17-Res34 143 1926 S \ot Foll 1935 1 14 19- Loll 5] 51 Not roll 1935 ] 14 1927 S 30 DISS 3 J 69 1 A. M. L. J 1/1-Rel 3] 53 --1-Foll, 1934 J 105 - 16-1 oll 1915 14 ---25-roll 1134 ) 105 — 20--Res) 5' 2 AM LJ 2 / 17-Rel 3) 33 - 22--Ref 1936 ) 201 23-Foil 4 J 61 -foll 4) 81 38-Foil 1934 J 113 ---- 62--Appr 3] 59 3 AM LJ JJ 3-Toll ] 5 -oll 6 ) 6+ ----Foll 193+ ) 105 4 AMLJ 1 / 7- Not Appl 1935 ] 18 —77-1 oll35 104 Dist 1930 ) 17 ---D, 1936) 173 SAMLJ 51-01 1930 145 --51-1 Full 135 ) 14 ---11-1 ol! 6) 4 1135 ) 107 -97-1 0 1 134 ) 105 *-? (11) -10 4-114 731) 1 -5 (111) - Tote 10-1 011 1936 1 145 6A ML) AIRE! 1935) 34 - 16-DA 1351 15 --7--Vod 6) Cases referred in subsequent Reports I names of parties a id Number of the casc. or (NB-II kereter the reference to the publis. ed Report of the case could be discoren it has been gitch within brackets italics) CP 57 of 1928 (ar 1926 -)--Not To 3) 53 Balut i Crown Cr Ref. 46 of 1934 (=19. A 111 114) --Rel 1936 AY I J 201. BBCI 1'3rduard Will CI 12 of 1933 (-5.) 833-roll 16 Golak , 1st BalCSA45 of 1929 oll 1935 ) 4 lict Ron Vadho Lal SA 4 of 19: (and C KH 1930 W 4 ) 27 FOR 651 Ibrahim Khan Hazarat Noor mai CR201 of 1932 =1) 18-loll 6 J 53 Veghraj: Cro CT Ret 6 of 1920 Dist 1936) 201 Wohammad Ismat Ullah Vs Bus Robi CR 54 of 1933 (=6] 271-Vod 6) 5 Ram Chandra Shaco Nath CR 75 1926( = 1926 5 29)-oll 5 ) 31 Not Toll 19 J. 14 As Chandrika Prasaili CS157 of 1910 Prsa () (+ Stranit Committee Thol falwrn 1 falses of Ame CSA 56 of 1998- tatc: preted in'5] 3 (111)---Note 5 (8) ·THE AJMER LAW DIGEST. (Civil, Revenue and Criminal) Complete up to 1936. ABUSE ABANDONMENT. --Of claim-Different from Gift See, Transfer of Property Act-S 43 --Of portion of claim - In respect of which Court Fecs is deficient See, CPC.-S 149 or 07, RR. 7&8 Court Fees Act-S 7 --Abuse of Process of Court. See, CPC.-S 151 ---Abuse of Criminal Procedur See, Criminal Trial-Cıvıl Nature ACCOMPLICE See, Evidence Act-S 133 ABATEMENT Also See, CP. C.-0. 22. C. P. C.-S. 96 and S. 105 CP. C. 43, R 1 (K). --Suit abated-But representaties brought on record-Abatement 15 sct aside-Vo agitation in appeal Even where the suit had nbated the affect of bringing fresli representaties on the record would be to set aside the abate ment and the question cannot then be agitated in appeal. (Jolly JC) BAGICHI DALLALN v. HIRA DAS *3 J 8 ACCOUNTS Also see, Evidence Act--S. 34 CPC,-0.8, R. 6 Limitation Act--Art 85 Partnership Accounts Suits for accounts-defendant entail ed to amount found due to lnm against plaintiff, without claiming it as a set off If Plaintiff sues for accounts, he impliedly undertakes to pay to the defen dant any thing that may be found due on accounts being taken and defendunt need not specifically pray for a decree Delts claim not being a set off no question of Court Fees or Limitatation arises. 32 A. 525, 116 117, 54 M. 651 Foll, 16 2.833 Rel (Norman J.) THIKA 4 KHETRI RATI RAV GUIIS RAN & Co. 1934 ). 99. ABU MUNICIPAL LAW (1919). ----S 112 (2) (b)-Permanent Inhabr- Scc, Notification by C.C. 1936 J. 15 (N S.)

·3 AJMER LAW DIGEST. 4 ACKNOWLEDGMENT ADVERSE POSSESSION-(Contd.) Sce, Limitation Act, s. 19 Co-owner or Tenent--Express 110fice necessary-Bul no 110tice necessary when 110 such legal relationship ACQUISCENCE --Encroachment-Quisence and Ac A co on ner or tenant claiming to hold adversely must point to an affirmative quiscence-Distinction betueen-'Stand Ing by'-To constitute "Acquiscence' assertion of title against his co-owner or there must be 'standing by" landlord But when there has never been such legal relationship between the owner There is a distinction between mere quiescence and acquiescence To consti and the possessor as would show that tbe os ner was at some time in constructive tute acquiescence there must be something possession then there is a presumption equivalent to what is termed in legal that possession-long, continued, open parlzace as standing by' (Nornian J. C) and peaceable-is in the absence of evi FATIVA V VATHU 1936 J 81. dence to the contrary adverse to the true owner, and that expresses notice to the true os ner need not be proved. (Norman JC) Fateh LAL V, RAV NARAIN. ADMISSIBLITY. 1936 J. 191 See Deed--Admission, Co-Sharers-Scope As among Co sharers the exclusie possession of one is not adierce to the ADMISSION others and he who claims a title by adverse See, Evidence Act-SS 19 to 21 possession must prove definite act of ouster (Norman J.C) FAZAL HUSSAIN v TASDIQ HUSSAIN, ADOPTION 1936 ], 127 Hindu Law ---Co-Sharers - Presumption against- See, Hindu Law-Adoption Open assertion and exclusic occupation Jain Adoption ICCcssary See, Hırdu Lau - Adoption - Jains (a) When no partition has taken place the usual presumption is that the sole ADVERSE POSSESSION occupation by one co sharer is pot prima facte inconsistent with the right of the -Nature - Vust be open and not secret others, that the exclusie occupation and Adverse ro session must be oren and enjoyment of the property by one is not not secret It is not necessary that a person per se adverse possession, and thrt in holding adversely should giie erpress addition there should be an open asser notice to the true owner. (Norman) ) tront of a hostile title and notice thereof to RANZAN BUT V. BHURI. the others direct or to be sofcrred from 1926 ). 186. notorious acts and circumstances This ·5 AJMER LAIV DIGEST. ADVERSE POSSESSION - (Contd) ADVERSE POSSESSION --(Contd) IS so in case of actual co shurers only vendee Held the possession of one (Wurphy J C) RAFI UDDIN v Kirin co owner is the possession of all As the Bux co o vner remained in possession her pos 1927 S 37 sess on could not to the knowledge of other co owners be adverse for they could --Tenant Definite act ncccssary not be expected to know that the co-own-r Ic) To constitute adierse posseSSION had sold the property to the vendee and there must be some d finite act on the was living in it merely as a tenint part of the tenant constituting a dennal of (Vormanſ C) RAMZANI BU\ v BHURI the landlord s title (Jolly J C) PAULID 1936) 186 V BALA PERSHAD -Aliepee-rom co sharı-Presump 4 J 61 tion of, from alience s possession of co -Tenant-Lutse for fixed pcriod - sharers an affected with notice Tenant continuing 111 possession on samc (6) In case or an al enee from other terris aftcr cxpiry cant tot claint adverse possessION co sharers the presumption is that the alienee s possession is adverse forth with (c) Where after the expiry of the provided that the alienation takes place in period fixed in a lease the tenant continues circumstacces which would effect the in possess on as tenant on sa me terms other co share with notice (Wurphy expressed in the lease he cannot claim JC) M RAFI UDDIN LARIN BU adverse possession and the lessor can 1927 S 37 recover the property back (Lords Tom lin Russell and Sir Lancelot Sanderson) Alienee-Fomeruditory manager- CHANDRIKA PRASIDA B B & C Possession of all iee beco nes aduerse I RY against alienor a illis successors V AIR 1935 PC 59=1935 OWN (1) When the hereditary manager of 379=1935 AWR 459 = 193, RD 165 an estate al enates the estate possession 1935 All LR 345 - 61 CL] 147 -39 of the alie see becomes adverse to the CWN 552=68 ML) 552-41 Y LW manager and h s successors from the date 617 = 1935 MWN 431 = 1935 OLR of the al enition s her table estate could 249 =154 IC 945 =37 BLR 390-31 not be created o tale effect as successite PLR 331 = 16 UD 221 = 16 LRA 1 fe estates 2, 1 271 Foll (Jolly JC) (Rev) 250 Bisur hull VIST RAHVAT ILLAHI 4 J 44 -Alience from onu co or icr-lute 101 111 open possession_His possession Occupart-Ofu wprou ed shamlat tot aducrsc to other co ot lers Tot inngrnt for long lo adterse OSSCSSIONI A co owner sold her share by in udregistered sale deed but rem bed in Sic iimer Land and Reseaue Regula possession under a rent note from the tion S7 ·7 AJMER LAW DIGEST. 8 AJMER ALIENATION OF LAND REGU AJMER COURTS REGULATION (I OF 1877, LATION (III OF 1914) [Note-This Regulation has been repealed by --S 15-Construction-"Land" fall- Ajmer Courts Regulation (IX 1926) ing under this but not under Ajmer The latter regulation came into force from January 1, 1927 The former Courts Regulation-Qualificd prolubition Regulation however, still governs applies right of Appeals, References etc for The proper construction is that in the saits instituted before January 1, 1927 Ed] case of 'land' falling under the definition of Regulation ull of 1914 but not being Scope-Not merely procedural It land to which Regulation JX of '26 applies, restricts right of appeal the qualitied prombition of section 15 of the former Regulation will apply (IVcston (d) The old Courts Regulation (1 of JC MAN MAL V. GHISA LAL 1877) is not merely procedural. It not 1936 ) 161 oply confers but also restricts the right --S 15--Scope --Agricultural or pasof appeal laid done by the CPC. turi land inside the limits of a town or (Shannon J. C) MODU LAL . MOHAN village is covered by this Section and LAL not by Ajmer Court's Regulation (1X 4. J 7. of 1926) Agricultural or pasture land inside the limits of a town or village is covered by --S 5 and S 25-Commissioner could Section 15 of Regulation III but not by define limits of jurisdiction of court Section 24 of the Court's Regulation. (b) Under S 5 of Regulation 1 of 1877 (IVeston JC) MAN MAL V GISA LAL 1936 ) 161 power to define such jurisdiction was not -S 15-Agricultural land cannot be specifically reserved to the Chief Commisssold without Collector s sanction ioner and consequently sections 5 and 25 of that Regulation must be read to Agricultural land cannot be sold gether and construed in A non contra. without Collector's sanction (Il'eston dictory sense If follows therefore that JC) MOHAN LAL V RATNA. under section 25 of that Regulation the 1935 J. 51. Commissioner had power to define the local limits of jurisdiction of the various Sub Judges and Munsiffs in the District AJMER COURTS and these courts could therefore exercise Not subordinate to Allahabad: jurisdiction only within the local limits so In) Broudly speakiog the Courts at defined. (Jolly J. C) HINDU v. Alori Ajmer are not subordinate to the High LIL Court of Allahabad except in to com 4) 69 paratively rate matters. (Boys and hisch, JJ) IS TIL MATTER OI A Vanli ---S 7 and Ajmer Courts Regulation 0 BEAWAR (I\ of 1926)-S9-authority to it csi A. I. R. 1939 AII, 887 - 128 I C. 388 Subordinate Judge turthi jurisdichon in 1930 A L J 829 - 1930 Cr. C. 1939 shits creceding Rs. 10,000.

·9 AJMER LAW DIGEST. 10 S. 15 AJMER COURTS REGULATION (I OF AJMER COURTS REGULATION I OF 1877), S 7 1877), S. 15. A general order, dated 1st December Decree before repeal of Rega 1923 had been issued under S 7 of lation (1 of 1877)—Second appunt lies Regulation 1 of 1877 investing the Sub under S 15 cten after its rcpcal ordidate Judge, Beawar, with powers to Under section 13 of the Ajmer Courts dispose of original suits above the value of Regulation (No 1 of 1877) the High Rs 10 000/ Court had jurisdiction to interfere in The per Regulation contains no clause Second Appealtwith the findings of fact as providing that poners existing under the well as findings of law. On January 1, old regulation shall continue and be deemed 1927 Regulation 1 of 1877 was repealed to have been conferred by appropriate by Regulation IX of 1926 which allous section of the new Regulation. Under the Second Appeal only on questions of law. peu Regolation the Commissioner or District Judge has no authority to invest Held, the right of Appeal on the merits a Subordinate Judge with jurisdiction in which had accrued to the applicant before suits exceeding Rs 10,000 This authorithe repeal of Regulation 1 of 1877 was ty can be exercised only by the Chief pot taken away by the new Regulation, Commissioner under S 9 (Weston J. c) (Barlec J. C) ABDUL RAHMAN v Mst HET RAM JETH MAL v. TULSI RAU SADDI. RAV SWARUP. 2J 27 1935 J 18 -S 15, S.16 and S 17-Second Apical ---S. 15 - Decision final under C. PC IV lctlicr concurrent findings of fact or -No second appeal law are binding No second appeal will lie under S 15 of the Aymer Courts Regulation against a Once it is shown that a second appeal dec sion declared by CP. C. to be final lies under S 15 of Regulation 1 of 1877 (Baker J C) SIED AMIR ALI V ABDUL the High Court is seized alco of all points AZIZ on which concurrent findings have been 1 J 25. made the subject of a reference to the -S 15 - Loucr Appellate court modı Allahabad Hgh Court under S 17 of the fied the decree of the trial court in favour Regulation by any party to the appeal. of the appellant-But decided the point this does not apply to concurrent findings raised in Second Appeal against the of fact as S 15 of the Regulation is to be read subject to S 16 which makes the appuit w-Second Appeal lies decision of the trial court where confirmed The lower appellate court modified the by the appellate c-urt on a matter of fact decree of the trial court in favour of the final, $ .. 77 of 1930 Diss (Sorman: appellants but decided the point saised in C) BN Ri&B B&C. I. Ri. v Second Appeal against the appellzats Hola, Sita RAV AJODIYA PCRSHAD. the Second Appeal lies 6 d J.L J. 6+ Ref (Norman J.C) DURG 11 KW AJA 63.64 SA Y GIRDHARI -Scope-S, 15 and 1936). 103. | Second Appeal and Reference lie S. 17- II licu ·11 AJVER LAIV DIGEST 12 AJMER COURTS REGULATION (I OF AJMER COURTS REGULATION (I OF 1877), S 15 1877), S 17 A secon 1 appeal lies only when he --S 17-First appellate courts con decision of the original Court has been firms decision of trial court—No Sccond modified or reversed in first arpeal Appeal-But Reference Reference under the Regulation is restrict When first appellate court confirms ed to points of law upon which the first the lower court s decision there can be no appellate co it has upheld the dec sion of second apperl but there can be reference, the original court (Il'eston J C) ABDUL 86 I C 626 Foll (Baler J C) MOTI Aziz v Avil ILI LAL V MITSUI BHUSA hAISHA LTD 1935 J 102 IJ 29 -S 15, S 17 and S 32-P. Ovisions for -S 17-Scope appcals ant Rulerunicus arc cxharistie- No Second App allies if first Applellate S 17 mentions the construction of cont dismissel Appeal as tu ic barred any document and not of any documents' The Sections dealing wi h appeals and (Wukerpi & Young JJ) ALLEY RASUL References are exł austise as regards the ALI KHAS v Bal KISHAN right of appeal Consequently even when *1934 J 28 the First Appellate Court does not hear =AIR 1934 All 7093 AWR 604 the apperl on merits but dismisses it as =1934 AII LR 845=151 I C 362 time burred its order amounts to confirm -S 17-Construction of document is ing the decree of the original Court and no second appeal lies (Norman , c) question of law-Inference to be dr uit B B&C I Ri v THE EDWARD Mills from a number of documents is question Co LTD BLWAK of fact 5 J 83 The question of the construction of -S 16, S 15 and S 17 - Second appeal certain documents is a question of lau but cnc trout finings of fict or the question what legal inference may be la. a busting draud) from a number of documents is a SA question of factand not a mere question of urder 5 15 above lan 1923 P C 187 Fol (Huacri ant --S 17- Scope Young JJ) ALLCY RASUL ALI KITA V Irference is permitted under S 17 BAL BISHAN When 1 que ton of 175 or usage having *1931 J 28 the force of inn or the construction of =AIR 1934 All 709–3 AWR 604 any docume i at the adm ssibility of any - 1934 All LR 845=151 I C 362 evidence affect ng the merits of tlie czce arises and rot otherwise (111ergs and S 17-Reference in forma paureris Young JJ) TILCI RASUI ALI halv IS competent BILLISTAN (1) Provisions for reference under Sect on *1934 J 28 17 are not at all ar alogous to the provi AIR 1934 All 7093 AWR 601 sions of O 46, R1, CPC There being -1934 AU, LR 845 – 151 I C 362 therefore no provision in the CP.C for ·13 AJMER LAW DIGEST. 14 in on AJMER COURTS REGULATION (I OF AJMER COURTS REGULATION (I OF 1877), S 17. 1877), S 17 suh an application, 041, R. I may be the Commissioner, who dismissed the deemed to cover such an application by suit accordance with the Chief virtue of Section 32 of \jmer Court's Commissioner s Judgment Regulation A reference application con The plaintiff preferred an appeal to the sequently in forma pauperis is competent Chief Commissioner from the Commission- (Jolly J C) ABDUL QADER KRAN v er's decision. The Chief Commissioner ABDUL RAOOF KHAN did not make any order the 4 J 92 memorandum of appeal adm tting it, or directing that it should be reg stered, or -Scope. S 17 and s 15-When that the respondent should be summoned Scconi Appeal and Reference lie or that the appellant should appear on a See, under S 15 above certain day under S 551 of Act X of 1877 but issued a notice to tle appellant s ----S 17, S 15 and S 32 - Provisions for counsel to appear on a certun day The appeals and References are exhaustice appellant's counsel appeared on that day No Second Appeal lies of First Applellate and the Chief Commissioner intimated court dismissed Appeal as time barred that he was acting under S 551 of See, under S. 15 above. Act X of 1877. The appellant s counsel then proceeded to address the Chief -S,17, S. 16 and S. 15-Second Appeal - Commissioner, and was heard for some WV1.ether concurrent findings of fact or time and then stopped, in consequence of law are binding the Chef Commissioner resolving to refer See, under 15 above to the High Court the question whether the appeal from the Commiss oners decision -S 17, S. 18, S 21, S. 36 and S 37-lay to him or to Her Majesty in Council Reference to Chef COBISSIONU by The Chief Commissioner subsequently Commissioner of Ajmer Appeal from referred such question to the High Court Comissioners decrce made in accor Held, by the Full Bench (Spinkie, ). dance with Chef Commissioners Judg disseoting), on a reference by the Disistaa ment Bench before which the Chief Comm ssior On an appeal from a decis on er s reference came, that such question civil suit of the Assistant Commissioner in the trial of an appeal' mithin the of Ajmer to the Commissiover of Ajmer, meaning of S. 21 of the Ajmer Courts the latter, feeling doubtful on a question Regulation 1 of 137" and was properly of the nature specified in S 17 of the referred to the High Court Ajmer Courts Regulation (I of 1877), Hell, by the Divisior Bench (Spinkle, referred such question, under S 36 of the J and Straight, J ) that the appeu from the Regulation, to the Chief Commissioner of Commissioner s decision lay in this parti- Ajmer 700 Mert 1 The Chief Commis cular case, not to the Chief Comm ssioner, sioner derlt with the case as prescribed in but to Her Majesty in Council (Robert S 37 of the Regulation, and returned it to Stuart, Kt. C. J. Pearsor, Spinkie, in a arose ·15 AJMER LAW DIGEST, 16 AJMER COURTS REGULATION (I OF | AJMER COURTS REGULATION (I OF 1877), S 17. 1877), S 37 Oldfield, and Straight JJ) TITANUR or which may be so relerred to it (Blair MASL DAY THE IVIDONS or THE and Burkett JJ) KALIAN M41 v RAV Tuanlr or VALDNARA KISHES 2 A 819 21 A 163 ac S 18-Ther ord "shall' is manda -SS 21, 17, 18 and 36 and S 37 - tory and not directory - Court has 110 Reference to Chief Commissioner by discretion to refuse Commissioner of Ajmer - Appeal from Commissioners decrec made The word 'shall" is mandatory. When a question of the nature spec fiod in S 17 cordance with Chef Commissioner's has been found to exist the District Court Judgment has no discretion to refuse to make the See, under S 17 above reference, 11 A 304 Not applicable (1'cston JC) \le RASUL: BAL KISHEN ---S 23-Companies Act--Chef Com IN1ssioner is High Court 1935 ) 54 S 18 - Scope The Chief Commissioner of Ajmer and Mertara is the High Court for the purpos 1f the District Judge thinks that he es of the Companies Act for places within should mal e a reference, he should state its jurisdiction and not the Allahabad High the facts which he finds as court of Court. (Aluthern: J.) Kaari Press Co appeal and then should state the question LTD of law that he desires to be decided by the AIR 1926 AN 649 High Court (Vikerji and Young JI ) =48 A 70924 A LJ 768 ALLF: RASLI ARKAN V BAL KISIAN *1934 J 28 S 25 and S 5-Comissioner could =AIR 1934 All 7093 AWR E04 dcfinc lumits of jurisdiction of courf 1934 AIL L R 845= 151 J C 362 See ut der S 5 above -S 18 el, seqq - Reference by Com -S 32 S 15 and S 17 - Provisions missioner of Ajmer-Pouers of High for appeals and References an exhaustiec- Court do Second Appeal lies af First Appellate court dismissed Appeal as toe barreu Held that where a soint of 121 or 1 question as to the construction of a Sec, under S 15 aborc document is referred to the High Court by in order purporting to be made under --S 36 S 37, S 21 aod S 17, S 18– S 18 of the Ajmer Courts Regulation, Reference to Chef Commissioner by the High Court cannot consider is hether Commissio or of Ajmer --Athcal from the point referred arises in the case in Commissioner s lccrce made all accon/ which the reference before it has been ance with Cher Commissioner's Judge made or not, but its functions are limited to pronourcing an opinion OB any point Sce, uoder S 17 above ·17 AJMER LAW DIGEST. 18 AJMER COURTS REGULATION(IX OF 1926) AJMER COURTS REG (1926), S 20 -Printed-al The new Regulation contains po chuse 119 () S) providing that powers eusting under the S6 and S 20— Notification No 623 old regulation shall contique and be deemed to have been conferred by appropriate CC-Appeal transferred to Additional District Judgc-District Judge cannot section of the new Regulation Under pass any orders thicrem unless lie uith the new Regulation the Commissioner or District Judge has draes that appeal no authority to invest a Subordinate Judge with Once an appeal is transferred to the jurisd ction in suits exceeding Rs 10 000 Additional District Judge he is for pur This authority can be exercised only by poses of that appeal constituted the court the Chief Commissioner under S 9 of the District Judge The District Judge (IVeston J C) Hot RAN JCTII VALI ceases as regards that appeal to be the TUISI RAV RAN SUARLI Court of the District Judge and his no 1935 ) 18 jurisdiction to prss any orders therein, - S 12-Fornm of Appeal is gore nel unless and until he exercises his powers by the subject matter of sent and not under S 20 of the Courts Regulation to subject matter of appeal withdraw that appeal from the Additional Decree was for more than Rs 5000/ District Judge (Norman J C) Falaz The appeal related only to an amount of HUSSAIN V MAIIMOOD ALI Rs 1,000/ odd 6 J 48 Held, in Ajmer the forum of an appeal --S 7 and S 25-1f jurisdiction of is prescribed by the subject matter of the courts defined-Commissioner cannot suit and not the subject matter of the lunt it appeal (IV'eston J C) GUSULILI (a) Where the jurisdiction of Sub BASTI MAL *1935 y 42 Judge and Munsiffs has been defined by -S 14-Second Appeal Sot filc / the Chief Commissioner under S7 of before Regulation-District Jutsch is Regulation IX of 1926 the Commissioner 110 Jurisdiction has no power to limit such jurisdiction (a) The D strict Court bas no longer under S 2 of the came Regulation jurisdiction to hear Second Iprezis 27 C 272 Foll (Jolly JC) HINDU V even in cases filet before its con into Moti LAL force All Second Appeals lie to the 4 J 69 Court of the Judicial Commissioner S 9-Anthony to test Subor lo Volly JC) MI 1SJID CHRACCIS AN wate Judges Ith Juris fiction in smuts S HUA CHAN) exceedmg Rs 10000/ 4 ) 15 A general order dated Ist December --S 20 and S 6- Totification lo (23 1923, had been issued under 5 7 of CC-Appeal transferrello Aditional Regulation 1 of 1877 iniesting the Sulr District Judgc-District Jilge cannot ordidate Judge Be 11 with powers 155 ang orders throun alussle til, to dispose of original suits above the drazs that appeal value of Rs 10000/ Sec, uoder S 6.

·19 AJNER LAV DIGEST. 20 AJMER COURTS REG (1926), S 21 AJMER GOVERNMENT WARDS REGU LATION (I OF 1888) -S 21 (d)-Enrolment Rules Failure to obtain an order of the Sce, Notification by Jud cirl Comms Court of llards before filing the suit is sioner a defect which goes to th• root of the cuit 1934 J 7 (N S) and cannot be cured by any subsequent Superseded Rules at 2 J 63 (GS) action 16 C 89 Foll (Norman JC) and 2 ] 17 (N S) GOIAL CHAND THE MANAGER, lenkty KALA ESTATE ---S 24 – Land cotered by this Reg! 5 J 97 lation as well as Ajmer Alienation of land Regulation-Sale absolutely prohibited AJMER LAND AND REVENUE REGULA In the caso of land covered bi Ajmer TION (II OF 1877) Courts Regulat on as well as Ajmer --S 7.--Applies also to town Alienation of land Regulation the sale of land is absolutely prohibited (Weston (a) Section applies equally to agricul tural lards ard building sites whether JC) VAN MIL V GHISA Lal situate in a village or a toun (Jolly JC 1936 J 161 PAHLAD V BALA PERSHAD --S 24-' And betu een land and 4 J 61 u ells is disjuncture-Proibition applics -S 7-Occupant of improrod to land of there is no uell 111 it Shamlat-lot paying rent for long-A0 aduerse possessio!! The word and in the expression land and wells is disjunctise and the (6) Presumption is that no occupant prohibition applies to and if there is no of unimproved Slamlat land is tenant at well in it (11 estou JCI VAV MIL Y svill of the proprietory body or Shamlat GAISA LAL and the nere fact that po rent had been 1936 ) 161 paid or demarded for many years would not co istitute tle possession of the occu S 25 and S 2-1f juris is tion of mint adverse to the Shumlat (Jolly JC) courts dcfinel-Comissioner cannot PallLAD Y BALA PERSHAD 4 J 61 See under S 7 zbore -S 7 and S 54-Occupier of 11 prored Shanlat laul-/schaut at udll AJMER GOVERNMEYI VARDS REGU Birtue of S7 every occupier of LATION (I OF 1888) unimpro ed Stat lind is deemed to be a tenant 14 x illud can be ejected by the -S, 21-1 ailure to obtain anthorsts Resebuc utlorities under S St. (Barloc "s fatal-D lect ta snot be remoted by JCLIDU V BALA PERSIDAD 31 bsequent orker 2 3 23 ·21 AJMER LAV DIGEST. 22 AJMER LAND AND REVENUE REGULA AJMER LAND AND REVENUE REGULA- TION (1871), S 9 TION (1877) S 41. -S9-Scope-It merely prohibits the Proprietory rights are made up of the dit ision of liability to pay lant sev une right of possession, the right of enjoyment bcjonla dcfined 1111111MU! but it dous and the right of disposition (11 ply 110t prolubit the ditision of ownership JC, MIOTA Y RAY KISHEN beyond that man 1925 S, 49, The Section does not prohibit the "ub S 41 -Usufructuary moitgagc.- division of ou nership beyond 7 defi ed Parting with proprietary rights -- Erpio minimum shure but it merely prohibis prietarg tenancy, how creatud- Tempo the division of liability to pay land revenue rarily meaning of -- 'Contunned 11 OCCH beyond that maymum (Norman JC) pation's interpretation of-absoluto BIRDHA Y SURAJ MAL ownership and usufructuary motg 764 1936 ) 23 distinction bctucu-Intui prctation of -S 9-Civil Courts cait oldci parti statutus--Canons of Interpretation -- tion where Revente conrts cannot Plain and natural meaning of tords The object of section 9 IS not to Per Richards, J -- provide an anti fragmentation law but to provide a method by which a partition A mortgagor who crentes a usufruc can be effected by the Revenue anthorities tuary mortgage of his land parts with in certain cases and consequently a Civil his proprietary rights in the holding with Court can order a partition in the cases in the meaning of section 41 of the Ajmer where the Revenue authorities cannot do Regulation II of 1977 SO in view of Sec 9 (Murphy JC LALA MUVA LAL V LILA SHEO Consequently he becomes an expro SHAVKER LAL prietary tenant if he continues in occupa 2 ) 45 tion of the lands comprised 11) the holding S 41-Obligation to pay Hrnsil gous wh ch were prior to the mortgage 1p his own cultivation 74 , Foll 16 417 toith land Pot applied Occupincy rights are transferrable and the obligation to pay hausil is an obl ga The word 'temporarily in section 1 tion hoch goes with the occupancy shouls that it was intended 10 include (Jolly J C) BHAV V S NISIR AHVID something more than an absolute and complete transfer of all proprietary rights --541-Usufructuar y mortgagecre stes On a proper interpretation of the section, It includes the case of a usufructuary cu proprietory tenancy-latute of pro priitory rights mortgage (a) A usufructuar; mortgage is a part Per hur mat Hussain J Ing with proprietory rights and creates an According to the rules of interpreta exproprietory tenıncy within the meadırg tion a court has to look to the plaid and of S, 41 of the liner Land Reseuue natural meaning f the words employed Regulition Icos Foll and is uot to be iotluenced by the consi- ·23 AJMER LAIV DIGEST. 24 AJMER LAND AND REVENUE REGULA. TION (1877), S. 41 AJMER LAND AND REVENUE REGULA- TION (1877), S. 67. deration that the interpretation frustrates Distinction between usufructuary the object sith which the Legislature mortgage and transfer of absolute owner. framed the law. ship discussed. (Richards and Karamat Hussain JJ.) S Nevi CHAND V. GANESII. In interpreting a statute, a Court must 7A, LJ 370 =5 I. C. 503. not be swayed by what was understood to be the law in a particular locality or by a -S. 42 and S, 47-Jagırdar cannot section of a community. 13 il'. R. 85, ordinarily enhancc hansıl 12 . 129, 11, 113, 22 C 788 23 C.563 Ref. A ſagirdar is not ordinarily entitled to enhance the hansıl on any occupancy Canons of micrpretation of statutes tenure so long as land Revenue settlement discussed. lasts except as permitted by SS. 42-47 of the Land Revenue Regulation. (Jolly In a usufructuary mortgage, the J. C.) BHAN V.S Nisar AIMAD. transfer of full ownership temporarily *43.4. does not take place The term "temporarily" in section 41 of the Ajmer Regula- -S. 54 and S 7.--Scope tron Il of 1877 does not justify the inference that a usufructuary mortgage See, under S. 7. pisses the full ownership for a time and -S. 65 (3) and S. 68--Settlement rethus creates an ex proprietary tebancy. cords arc I o etidencc as regards division An ou ner of a holding who has made an of property ex-proprietary mortgage of his holding has not thereby lost or parted with his A statement in the settlement records proprietary right either temporarily or that each party holds a share in each unit periuanently, and he does not consequent 15 not any eviderce that the shares are ly, become an ex proprietary tenant of bis not divided and separately owned as Uhud kashi in the holdingo 7 d. 553 | opposed to a tenancy in common (Norman Not foll 10 A 337, Foli 26 A 78, J C) BINDIA Y. SURAJVAL d.LJ 10 360 i 32, Rel 1936 J. 23 Ihe ords "continued in possession" --S 67--Paintiff's rcmedy by cxccu. in section +1, means lawfully continued in tron produudling and not stist when deferre Occupation and therefore, if the transferor, dant in possessION, inspite of a covenant to put the transferee in posessionof his hand hasht continues Plaintiffs remedy is under S. 47 of to hold on his Almud kashi he cannot the Code of Civil Procedure and not by be deemdeit to continue in posses smt of defendant obtains actual possession, sion within the meaning of section honescr wrongful, of the land in suit. 41, and capnot acquire the rights of (ll'esion J. C.) ADDUL NI IMAX V. AD cropropriclaty tenant. Section 41 RASLL BE has no application to such a casc. 1935 J. 82.

·25 AJMER LAW DIGEST 26 1 AJMER LAND AND REVENUE REGULA AJMER LAND AND REVENUE RULES, TION (1877), S 68 (1895) ---S 68-Rotenue and settlement entr The rule applies when the character ils regarding title-Presumed to be of the land has been permanently changed correct Chalı land that is land irrigated by a well does not cease to be chain because (1) 1 hough it has been repeatedly held in any particular year it is ubnecessary to by the Courts that entries in revet ue and use the weil water (Vorman JC) settlement records are not in themselves GIRDHARI v DURGAN KAWAJA SAHIB proof of title, yet in this District the rule 1936 J 128 is otherwise, because by section 68 of Regulation 11 of 1877 such entries are to be presumed to be correct until the contrary is proved (Broomfield J C) GHISA LAL AJMER LAWS REGULATION (III OF v. SUJAN MAL 1877) 5 J 21 Pr-ecaption (SS 6 19) S 68 and S 65 (3) - Settlement re 2 Damdupat (S 33) cords are to curence as regards dŁVISION Pre-emption of property -Principles-Principles laid dor 12 111 Sec, under S 65 (3). 16 A 341 to be follon cd S 107, Scope Where a right of pre emption There is no specific provision in S 107 claimed under the statute law of Ajmer for the trial and disposal of rent suits by Merwara the principles laid down in Revenue Officers Sec 107 (b) does not IL R 16 A 344 should be followed empower the law general to invest a (Piggott and Walsh JJ) Riu Sukli v Revenue Officer with powers to try suits MRS O MEAL or to set up a special court of any parti IL R 44 A 239 AIR 1922 All cular sort of suits There is no such 46=20 AL) 59= 65 IC 103 court as a rent court The Naib lehsildar tries rent suits becruse he is a Munsiff --Scope--The Latin Amr samil as (Baricc] C) LADU BALA PERSHAD In oudu 2 J 23 The Law of pre emption obtaining up Ajmer Verwara appears to be the same as that in force in Oudh (Chief Communis MIRS LEONEL AJMER LAND AND REVENUE RULES sioner) RAV SUKH (1895) ILR44 A 239 = AIR 1922 All 46=20 A LJ 59 = 65 I C 103 R 18 (e)-Scope-Chal la d not chanted 11 ans 36-It does not ccasc Scope-Greater alty-10 grond to be so for preference IS ·27 AJNER LATV DIGEST. 28 AJMER LAWS REG (1877) S 6 AJMER LAWS REG (1877), s. 8 (d) Greg er utility is no ground for GS 8--Erpress issue necessary-Bur pre emption unless a custom to the con den on Plautiff---presumption only i trary is established Jolly JC) MASJID property in tillate CHIRAGCHISAS V S HIR1 CHAD 4 J 15 In the cases falling under S 8 of the Ajmer Laws Regulation III of 1877 there ---S 6 and S 9-Pre emption-Righit ought to be no express issue as to whether of my aris cten where there is no the rght of pre emption exists and the sale decd according to T P Act bi den of proving must be on the platatiff If the property be admittedly in a village Land 75 sold in Ajmer but in order then and then cnly thre arises the to defeat n poss he claim for pre empt on presumption as to the existence of the no sale deed was executed as required by right under S 7 Sect on yt of Transfer Property Act (Broomfiell J C) MADHO LAL VI BINODI LAL in all other respects the sale was 3 J 41 complete 3.-Omus of proting custom on Held that 1 right of pre emption arose plaintiff Held also where a right of pre emption (1) The burden of proving a custom of is cln med under the Statute law of Ajmer pre eniption in the Sub division in which Merwara the principles laid down in the property is situate lies upon the plain Allahabad ruling in 10 All 3-11 should bc | tiff 2 A M.L J 23 Foll (Jolly J C) follou at (P18804 E Walsh JJ) RAM QADIR BUS v harmu BUY Sthil , LEO VEAL 4 J 81 S 8-Burden of Proof on Plaintiff AIR 1922 All 46=I LR44 A 239 - 20 ALI 5965 I C 103-LR 3 A 45 ---S 7-Tust is character of community Prusi iption for bcllefit of tillage com imties Roten records not necessarily oticnce of character of ana The right of pre emption stall not be presumed in any to in or any subdivision thereof and the burden sl 11 fr on the pluinuff to prove that the right of pre emption as claimed by the plaintiff exists 10 the sub division in which the property I d spute is situated No court can place the burden of proof where it does not die (Jurphy Jus ka VAL LODITA TI hLATII HOUSING Socirr LTD 3) 23 Ile te t in section 7 of the Regulation is the character of the community had the presumpt on has cuidently been enacted for ile be elit of village communities V S 8-Single instance not sufficielll Revenue records are compiled for purposes of 17 kat on and are not necessarily evderce of real character of an are? (11 ura J C) TIRU LAASIVI GINNING ricto QllurTON 31 (4) Isngle instance of pre emption eien in conjunction with sunplementary evidei ce afforded by instances from other ·29 AJMER LAW DIGEST. 30 AJMER LAVS REG. (1877) S 8 AJMER LAWS REG. (1877) S 33. Mohnilas is insufficient to prove the exis tence of a custom in 1 Vohalla (Jolly JC) Qipi Bus v RAIN BU 4 J 81 It is only in towns that vicinage gives a right to pre empt (Torman ) C) A717 UDDIN Y VIADHO RAV 1936 ) 149 ----S 8-Volalla is almost S9_ Sec Urder SS 6 and 8 2 A Vella in ljiner is a unit for the puposes of S 8 of Regulat on No III of 1877. (Jolly J C) QAD41 Bui v hun IN BU 4 1 81 --S 13 (c)- Actual price ascertained -Finding on market price not necessary S 8--Custom in one Tohalla does 1107 P ore cirston 11 another The marlet price is obviously only necessary when the a tual price paid has not been ascertained (lurphy J C) BHGIRAT V NATIVAL 3 J 15 2 Damdupat -S 33—Dan lupat (3) Evidence of a custom of pre emption in one Mohalla is not 1 sufficient proof of the existence of a similar custom in other Mohalla 70 PR 1899 67 IC 953 and 1929 Lal 330 Foll (Jolly JC) QADAR BLI LARIN BL1 4 J 81 luterest decreed by a Civil Court may not exceed the amount of the principal sum of money received by the defendant (orman JC) RAV CHANDRA V RADIIA KISHIN 1931 J 70 --S 8-Rival claimants --Priority of Icice or large extent of vicillage gites 10 pcte IC-Determination by lots -S 33-Rule of Dondupat-Applies uhur money is payible by def n laut to the plannift and not to a ndc option suit In the case of rival cumints for pre emption the mere fact that the decree ipfivour of one is of a prior date gives him no prelererce over the other Nor in the absence of a custom is the larger extent of vc nage a criterion for the determination of tre question of priority In such cases the most satisfactory 11 of deciding the rivul claims is to cast lots on the 707logy of S 9 of the limer (Pre emption) Lins Regulation (Jolly J C) MISJID Chin ICCIIS VS HU 4 CHAND 4 J 61 The rule of damdupat in Ajmer only applies when money is payable by the derer dait to the plaintiff and not to a rede. [ton su Un shich money is pay able by the plunt ff to the defendant (lorman JC) BALL R! M16AV LAL *1936 J 217 1 Foll S 8-1 iconage sites right to pro empt only in tot his -S 33- Vortgagı -Smt for ne temp tion-Application or 11. rule or dam up 11 ·31 AJMER LAWS DIGEST 32 AJMER LAWS REG (1877) S 33 Held that the rule lud down by section 33 of Regulation 111 of 1977 appl es oply to cases in shich money is piyable by the defendant to the plaiotiff and is not applicable to a suit for redemp t or of a mortgage (hnor Aiknan JJ) \FVI CIND V RADHA BALLADI 26 A 354 AJMER MUNICIPALITIES REGULATION (IV OF 1877), S 85 Municipal Committee (Chamer and Piggott, JJ) MUNICII AT COMMITTEE OF AJMER I hira ATLILIHI IL R 37 A 220 = 13 A L J 291 -28 I C 143=AIR 1915 All 10 rates AJMER MUNICIPALITIES REGULATION (VI OF 1925) AJMER MUNICIPALITIES REGULATION (1877) S3(1) – Third storey constructio! (NB This Regulation has been repealed) 15 a nou billing ani 1103 repairs The third storey construction is 8 new -S 85- 1unicipality not entitled to build ng and pot repairs (Vorman JC) take any subsequent action after failing BENI GOPAL v MUNICIPAL COVVITTEE to tale action ander S 8 (2) uithan one AJVEC molhi of notice of re erechos of building 1936 J 165 S 109, S 110 and S 219-Magist (a) I person gare the Municipal Committee of ljmer notice in writing of can question legality but not reasonableness of orders passed by the his intention to re erect 1 certain building 11111ncipality within the I mits of the Municipality no step was talen by the Municipality Ilhen the last gives poners to & within one month of the police vader Committee it is not for the lagistrate section 8) (2) of the Ajiner Mers 12 virtually to the inaj those powers by Minic pal Regulation arrogating to himself the function of deciding whether they were reasonably Hell that the Committee had 110 exercised It is however open to the authority to tone iny action subsequentls Vagistrate to question the legality of the under that section Chmiser Piggott order da cui Folli orman J C) JJ) VIC VICIAL COMMITTEE OL AJMER VILICITAL CouviTTEI AJMER v hILALATL LLANI RUYALI TAI IL R 37 A 220 - 13 AL) 291 1934 J 4 28 1 C 143=A IR 1915 AII 10 -S 110 and 220- lo Crul smt lies to --S 141.S111 docs not bar sunt for control mencipal discretion Mirages for fort by Vecipality Sut to restra n the Vun cipality from H1 of the Amer Vernarn demolislung plintiffs latrines Hell Thir 1-t1 Regulation does not bar n suit shen the 115 copfors 1 discretion on the I damages in the Cisal Court by Municipality, Civil Courts cannot control ***111 #111ced by an illegal action of the the exercise ol 11 7 discretion 22 1 230 Y orion ·33 AJNER LAV DIGEST. 34 AJMER MUNICIPALITIES REGULATION (VI OF 1925), S 194 AJMER MUNICIPALITIES REGULATION (VI OF 1925), S 220. 2 1927 All 32 Foll 19 B. 212, 53 A, 500, S. 200---Scope-Section applies tulien 1927 Lah 774, 1934 A A. L.J.4 Ref. sanction required by S 194 lias uther (Vorman J. C) PAHLAD V. THE MUNICI not becii asked for or hos bour refused PAL CONVITTEE, AJVER. 1936 ] 177 "Sanction in S 200 (d) has the same meaning as 'sanction in S 200 (a), i e ---S 194 (1), S 198, S, 220 and S. 225- "sanction required by S 194 (1). Civil conrt has no jurisdiction to question Section only applies when the sanction notice under S. 200 required by Section 194 has either pot been asked for or has been refused. The appellant applsed to the Municipa- (Vorman) C) SUA LAL V MUNICIPAL lity under S 194 (1) for permission to re COMMITTEE, BEAWAR construct Without waiting for permission 1936 J 145 he reconstructed Subsequently, within S 200, S 191(1), S 198 and S. 225 - the one month required by S 198 the Civil court has 110 jurisdiction to question Municipality refused permission and served notice under S 200 a notice, under S 220, on the appellant to demolish the construction The Sec, under S 194 appellant filed the suit for an injunction --S 200 and S 220-Order ander $ 200 on the Municipality not to demolish the cannot be questioned in Crtal Court cten construction if it is illegal Held, S. 225 of the Ajmer Municipal The only remedy against an illegal Regulation bars the jurisdiction of the order is an appeal to the Commissioner civil court to grant the relief of injunction a Civil Suit is barred. (Norman ) .) (Norman JC) HARI DAS V MUNICIPAL BENI GOPAL V VUNICIPAL COMMITTEE COMMITTEE, AJVER. AJVER 1934 J 61. 1936 J. 165. -S. 219, S 110 and S 109– Vagistratus -S. 198 (Explanation)-Scode can question legality but not reasonable Municipality can refuse permission 114 SS of orders passed by the Municipality where there is a dispute about title I he Sle, yuder S 109 above party asking Pernuission must, if per --S. 220-lotice consequential mission is refused on the ground of want of title, go to the civil court for a declara- platotits failure to comply with legal order inder S.220-Its ligality cannot tion of title. Until the civil court has found in favour of the party, the refusal bc impeached of the Municipality is final. (Vorman The Dotice under Section 220 15 merely J.C.) HARI Dis y. SILNICIPAL Covni consequential on plaintiffs failing to 11CE, AjurR. comply itb the order under Section 200 1934 ) 61 and granted the legality of the latter order, ON ·5J 92 Vol II--(H toL)- anap. catret Hasıl bezond lus lift tant for justifica The Manager can grabt partial remi 35 36 AJMER LAV DIGEST. AJMER MUNICIPALITIES REGULATION AJMER MUNICIPALITIES REGULATION (VI OF 1925), S 220 (VI OF 1925)–(Concluded). cani --3. 234 - Magistrale decide its legality cannot be impeached. (Norman J. C) Bev GOPAL MUNICII AL u hether conditions are fulfilled-Hecan COMMITTEF AJVLL go into question of Limitation-He can 1936 ). 165 flot consider whether the tax is due -S 220 and 110-lo Ciul sit lies to A Magistrate acting under Section 234 contol Municipal discretion has jurisdiction to decide whether the Sex under S 110 above conditions under which the Municipality can resort to him are fulfilled or not but -S 225 S 194 (1) S 198 and S 200—! he cannot go into the question whether Cillcom! ios lu jirisdiction to question the tax is due or not. He is entitled to notice wil, S. 10 go into the question of Limitation, 410 SL, under 5 194 above 091 Foll, (Norman J C.) CRONY AVBA LAL -S 225 and S 208-Onder unier $ 200) cannot bc questioned in Ciuil| Court in if it is illegal -S 245 (e) (1)-Docs not authorise the fixing of rent Sia under S 200 above S 233— Notice 1LCLSsary for suit- The section does not authorise the fix Apalns to tort and contractual obliga ing of rent. (Norman ) C) MUNICIPAL 11011 COMMITTEE, AJMER , MAYAGER VANIL. & Co, Notice is necessary preliminary to a suit, aguast the Committee for the reco very of rent Acts or illegal omissions in this section include bath cases of tort and contractual obligations Acts include illegal AJMER REGULATIONS : omissions B7?, P C. Foll (Jolly J. C) ML VICII IL COMMITTEE, JULK 1. BIL! Pir-141) *43.5 1101 S 234-Runt is not recot crabl. 63 $ita arg process ssion of Hasil beyond his life time for a Rent se por money payable under the applicable Thorman J C.) Suksed/480 good consideration, 1922 P. C. 123 Not Regulation or bye lan It is not recover 3. SATO CHAD able summary process under the Section, 1997 Loohori 161 Foll (Tormanı J.C) MUSICIF\l COUNTIL, AJVER -Vol 11- (H to L)-Sanad No ? an! 1. SAVAGET, Vand & Co 11-Diaan of Durgal is Jagınlar- 1936 Į 7. Not an Istumrardar 1936 J. 7. 1934 J. 77 ·37 AJMER LAW DIGEST. 38 APPEAL AJMER REGULATIONS –(Contd.) (a) The Dewan of the Dargah is not nn 'Istimarardar but a Jagirdar and the inquiry by the Commissioner about succe ssion to this Jagir was in his character as a Revenue Officer (Murphy J C) KAZI SHED SHAHEL DDIN V SIEDALA RASOOL 1925 S .6 Also see CPC-S 96 and S 100 and 0 41-043 Ajmer Courts Regulation (I of 1877) --SS 10-17 Timer Courts Regulation (IX of 1926) --SS 12-14 Alteration in Law Sc, Practice-New Law AJMER RURAL BOARDS REGULATION -Competency - Siccessful detend it (VI OF 86 ) call appeal if docile negatires a right clannici by hum --S. 2-Local vate- Jagırdar cannot (a) A defendant has a right of appeal lity Ironi his tchants even when the decree is not on the face Regulation provides for the levy of of it against him if it impliedly negatives a right claimed by h m against the plain local rate by Government from all land holders but it does not provide for that ff or the other defendants 21 A 117 lovy of local rate by land holders from and ) C1 N 18+ Rel (Broomfield JC) their tenants (Vorman ). c) DURGAHI MST KAJJI V NA VE KHAN KHWAJA SAHIB V GIRDIARI 3 J 64 1936 J 108 -Competency-Not competent on point i lich will not be ics judicata An appeal is not admissible on a point shich would not operate as res judicata ALLAHABAD HIGH COURT 5 J 106 --Courts at Ajmer are not subos i natu -Court Fees-Dec-Sutcral in to Allahabad High Court except in to luts but not spar itulyi ilu-appull it comparatitely rare irattu s Coirt ull not licar Sno motu (a) Broadly speaking the Courts at Where the reliefs are keseral and are Ajmer are not subordinate to the High not separately valued it is not possible for Court of Allahabad except in two comp? 3 Court of Appeal to hear the appeal up to ratively rare matters (Boys and hisch the value of the Court fee paid within JJ) IN THE MATTER OF A VANII 01 limitation suo motu without an applica BEAWAR tion to amend the memorandum of appeal 1931 Lali 237 Doubted (Torman ) C) AIR 1930 All 887 = 128 I C. 388 Did HASVAT ULLAH BASTI BIBI -1930 AL J 829 = 1930 Cr C 1239 6) 27 Court Fees-Deficient-Court Hot bound to allow tonie ·39 AJMER LAW DIGEST. 40 APPEAL -(Contd) APPEAL-(Concluded) (a) It is not obligatory upon a Court | Held, the appeal must fail, since if allowed to allow time to remely a deficiency in it would result in tro inconsistent decrees. Court fee in the case of 7 memo of appeal orman ) c) VOHAMMAD JA V The concession alloned by S 149 CPC VASUVA BIBI cannot be claimed is of right 38 B 41 1936 J 122 Diss O A 980 Foll (Jolly J C) SUJA -Privy Council -- In capital sentence NAD v Vooi CHAD See Privy Council-Appeal 4) 27 -Right to-is & vested right -Court Fees - Part after Limitation Proper time for raising plea thrt appcal A right of appeal is a vested right barrel by tunc which wheres in a party from the com mencement of the action in the court of first Sut Practice-Procedure, instance 1928 Lah 627, 50 All, 965, ---Execution-lot necessary to file 13 C 18, 1927 Jad 977 10 BLR formal decrec 330 1930 All. 225, 38 Vad 101 Foll (Shannon ) C) MODU LAI V MOJIAY An order in an execution application LAL is in itself a decree within the meaning of 4J 7 S 2 (2) of he CPC and consequently It is not necessary to file ? copy of a Scopels continuance of sint formal decree even if drawn up with the (1) An appeal is a mere continuanco Memo of appeal (Norman JC) MIST of the original proceeding initiated by the GOPI JUGAL KISHORE. filing of the plaint, 1929 All. 756 Foll *5] 3 (!!!) (Shannon ) C) MODU LAL v MOHAN - Limitation'-changed during suit- LIL Ter Lou got cruis appeal 4J 7 --Second Appeal Scc Practice-lew Lars Also sce Ajmer Courts Regulation ---New Low (1 of 1877)-S 15 Sce, Practice-New Law Ajmer Courts Regulation (11 of 1926)-S 14 ---Party-\ccessary-Louer Court fior lang that tinhiff has no title against -Second Appeal-Only then nghie some defendants-They are necessary confurti by statute partes (c) The right of second appeal is ook 1 natural or a birth right of a party, such a Suit for redemption Defendants lo 2 right must be conferred by a statute and 3 raised the plez that pluntiff's (Sh on JC) Monu LAL 1. Vous Interest had passed to them by wierse LAL, possession and so he could not redeem Lower Courts accepted the plea and dis 41 7. m used the ful! l'laintin prealed but Valuation-Doubtful dd not jon Delendints lo and 3 5cc, Practice-Procedure ·41 AJMER LAVV DIGEST 42 APPELLATE COURT Also See CPC-O 7 R8 ARBITRATION-(Concluded) not statutory but is common law doctrine, 11 C 286 and 18 C 114 Foll (Norman JC) AVBA LA V Hari SHAKER 1934 J 81 --Appellate Court of bound to hear suo motu Apical up to the tallic on aluch court fecs pul -Award-Portion of ar ard bad The remainder ill be maintained An appellate court is not bound suo motu to hear 20 appeal upto the value on which the court fees is paid If it is for the parties to put their case before the court and it is not open to a party who fa led to clum a relief to say that it was the court s bus ness to give it to him without being asked to do so 1931 Lah 237 Dis (Tori au ) C) BB&CI R1 Co ED! ARD MILLS Co LTD BEAWAR. 6 53 When separable portion of an award 15 bad the remainder of the award of good will be maintained 23 1. C 62 Foll (Barlee JC) NATIAN v MST A VIRAN 2J 35 Award--Rezision lus in suitable cases A revision application would lie to the High Court of the court proceeds in such a manner so as to come withia the ambit of section 115 CPC (Jolly J C) CHAGAN MAL V NAD MAL *3J 1 ARBITRATION Also see CPC-S 115 CPC-Sch II (2) Reference, AWARD REFERENCE 2 -Reference-Pendency of suit acluch Isithdraun no bar to (1) Award Award-Partly bad partly gool- Ter s separatle-Gooi terns a bar to The p ndency of a suit which is with drain does not make a reference illegal in consequence 19 Cal 008 Referred (Lormanj C) AVBA LAL V HARI SHIVER 1934 J 81 In zward though pirtis unenforceable nay ns regards other terms which pre separable operate is a bar 19'1 C 203 18 C 411 61 O 192, Pat 470 Not foll (lonan ] C) AVB4 LALI ILISHINI ER 1934 J 81 AR HS ACT (XI OF 1878 --Award - Bars shit -S 16 --Rules for deposit Arms ward is bar to & suit on any matter dealt with by the award this doctrine is See Not fication by CC 1936 J 22 (N S) ·39 AJMER LAW DIGEST. 40 APPEAL--(Contd.) APPEAL-(Concluded.) (a) It is not obligatory upon a Court Held, the appeal must fail, since if allowed to allow time to remedy a deficiency in it would result in two inconsistent decrees, Court fee in the case of a memo. of appeal. (Norman J. C) MOHAMMAD JAN v. The concession allowed by S 149 C.P C, VASUVAY BIBI. cannot be claimed as of right 38 B 41 1936 J. 122 Diss 50 2 980 Fol! (Jolly J C.) SUJI Privy Council-- In capital sentence: NAID v Wool CHI\D. Sec, Privy Council-Appeal 4 ) 27. -Right toals a tested right: .—Court Fees- Pard after Limitation Proper iron for raising plea that appeal A right of appeal is a vested right barri 1 by time which mnheres in a party from the com mencement of the action in the court of first Sue, Practice-Procedure, instance 1928 Lah 627, 50 All, 965, -Execution-lot necessary to file 13 Cul 85, 1927 Jal. 977. 10 BLR. formal decrec 330, 1930 All, 225, 38 Nad 101 Foll (Shannon JC.) MODU LAL. V. MOHAV An order in an execution application LAL. is in itself a decree within the meaning of 4 J. 7. S 2 (2) of the CP. C. and consequently it is not necessary to file a copy of a Scopels continuance of smt: formal decree, even if drawn up, with the (1) An appeal is a mere continuance Memo of appeal. (Norman ] C) MIST of the original proceeding initiated by the GOPI JUGAL KISHORC, filing of the plaint, 1929 All. 756 Foll, *5J 3 (III) | (Shannon ) C) MODU LAL Y. MOHAN -'Limitation'-changed during $aut- LAL Neu Lat got erns appeal 43. 7. --Second Appeal. Sec, Practice-Nes Lan. Also see, Ajmer Courts Regulation New Law (1 of 1877-S 15. See, Practice-Nen Lau, Ajmer Courts Regulation --Party-Xecessary--Louer (IX of 1926)-S. 14. Court finding that plaintiff has ito ntle against ---Second Appeal-Only client night some defendants - They are fecessary conferred by statute partes: (c) The right of second appeal is not a Suit for redemption. Defendants Xo? natural or a birth-riglit ol a party, such a and 3 raised the ples that pluintiffs right must be conferred by a statute. interest had prosed to them by adierse (Shannon J. C.) Modu LAI ». VOITA' Lat. possession and so he could not redeem. 41.7. Loner Courts accepted the plea and dis. missed the suit l'laintiff aprealed but Valuation-Doubtful. did not join Delendants Yo and 3. See, I'ractice - Procedure, ·41 AJMER LAIV DIGEST. 42 APPELLATE COURT. Also See, C P. C.-07, R. 8. ARBITRATION-(Concluded). not statutory but is common law doctrine, 11 C. 386 and 18 C. 114 Foll. (Norman JC) AVBA LAI V Hin SHAVKER 1934 J 81. -Appellate Court-Not bound to hear S110 m0th Appeal up to the talne on tinch court fees !! An appellate court is not bound suo -Award-Portion of auard bad-- motu to hear an appeal upto the value on The remainder till be maintained. runch the court fees is paid. If it is for the parties to put their case before the \Vhen separable portion of an award is court and it is not open to a party who brd, the remainder of the award, if good, failed to claim a relief to say that it was will be maintained, 23 I. C 625 Foll, the court s business to gile it to him (Barice J C.) NATIAN Y MST. AVIRAN. without being asked to do so, 1931 Lsh 2 J. 35. 237 Diss. (Norman ). C.) BB&CI. Award-RCTision lies in suitable RA. Co. 1. ED ARD MILLS Co, LTD. BEAN AR. cases 6 J 53 A revision application would lie to the High Court of the court proceeds in such a manner so as to come withưu the ambit of ARBITRATION section 115 C. P C. (Jolly J. C.) CHAGAN MAL V NAD MIL. Also sce, C.PC-S. 115. *3 J. 1. C. P. C.-Sch. II. 1. AWARD (2) Reference, 2 REFERENCE Reference-Pundency of smt u hich (1) Award 15 t. ithdrawn 110 bar to -Award-Partly bad, partly good-- Terms separable-Good tours a bar to SH The pondency of a suit which is withdrain does pot make a reference illegal in consequence, 19 Cal 608 Referred. (.ormas J. C) ANB: LAL Y. HARI- SHIVER, 1934 ). 81. An award through partly unenforceable, may as regards other terms which are separable, operate as a bar, 1921 C 253 18 C 411 36 A 336, 1923 Pat 170 Not foll (Norman JC) AVB LALI HAN SHAVER, 1934 ) 81 ARYS ACT (XI OF 1878. -Award-Bars shit -S 16 --Rules for deposit of Arm See, Notification by C.C. nard is a bar to a suit on ap) matter dealt with by the anard this doctrine is MSI 2 1.5) ·43 WMCR LIIV DIGEST 44 ATTESTATION BENAMI-(Concluded) -Voinference of 1 mot ledge of con (1) (a) A person who alleges that pro turis- But circumstances shot. perty con eyed to another belongs to him I non.ludse must prove his allegation and prove it beyond reasonable doubt 09 I C 67 and (3) The attestation of 1 deed by itself 1920 PC 77 Rel (Shannon J C) do-s net e top a prson from denying any ARDLL BASHIR v MST BISVIII ALI BIN think except that he vitaessed the execu 5 J 36 t1on of the dead knowledge of the con -Source of money-s important tenis ought not to be infe rei from the mere face of attestation 1927 Cal 933, factor though not conclusie 6. IC But the nttestation (1) ') The sou ce of the purchase muy tale place under circumstances thich money is an important criterion though 10 would won thnt the sitness did in fact Is not conclusive when there were other how the ontents of the deed 19 1 C ci cumstances showing that the purchaser 25 71) 1 (1) JO1 C 271 Rel intended the property to belong to the (Sha 1 10: JC) AIDIL. BASILI MST. person in whose favour the sale deed was PISVIII 411 executed 192, All 59 Rel (Shannon JC) ABDUL BASHIR Y MST BISVII LAH BIBI 9,1 Rel 5) 36 5 J 36 BAR COUNCIL ACT (XXXVIII OF 1926) BOND -S 9, R 1, Proviso (a)--Scope Consideration for a bond was past (c) Tie cinuse practised in one or debt- Presumption that 'past deht was more of the Courts of the Court subord hot tume huru nite to the Ilhb?! High Court 25 Where the considerntion for the bond used in the rules framed under S 9 means is rast d bt it is a proper presumption Practised in one of th Courts in this against the executant that the debt for pratace (Bass Elsscki, JJ) Ilir * hich the boni was tahen n9 not isme MITTIROI VIII OF BIARLAK barred (Torman JC) CHIANDA MAI y JETUA AIR 1930 ALL 887 1934 J 68 -128 1 C. 388 - 1930 A L J 829 - 1930 Cr C 1239, -Bond crecuted by guardian of a minor-Consideralon past deht of the monor futher-onditor 11875prore that considerulion 1 us 4000 DEWAMI When a bond is executed by the Onus of proof-ont person alleging ratusal guard an of minor and the con onnerahup sideration for it is post debts due by the ·45 AJMER LAVV DIGEST 46 BOND-(Contd) CAUSE OF ACTION minor's father the creditor must proie -Test of distinction affirmatively that the consideration for the When a fiscal distinction is made bood was good that is to say that the debts in lieu of which it is executed bets een two causes of action it is not were not time barred (loriam J C) improper to hold that these are two CHASDAS NAI • JETHA distinct causes of action (Weston J C) 1934 J 68 UMR 10 V VAHADEVI 1936) 4 BURDEN OF PROOF 1 CESSES Seu (1) Ludincu Acl-SS 100 110, - Colonel Dinons Robkar datud the 13th December 1151 Etfuct of—To « ruhom applies (2) Under the substantive heading of the subject whose burden of proof is sought to be con sultede & 'Raili ay Act- S 72' Hindu Law-Aliena tion-Legal necessity' Benz mi' etc (3) Criminal Trial-Burden of proof Colonel Dixons Robkar dated the 13th December 185+ is merely an execu tive order and has not the force of statute law It merely forbids collection of cesses-ginti kholni etc by Bhumias and Patels for their own benefit It does not apply to village bodies (Vorman JC) CHANDILI DHOOL SINGH *5 J 3 (III) CANTONMENT ACT (IT OF 1924) S 280—(Cantonment Lund Adini -Rocotery by Istumrardars not Mistration Rules-R 13) - Title on land illegil-Colon.1 Diron Robhar of 1857 cannot be conferred by condonation refers to Lhummus and Patels 11tle on land canot be conferred by (1) The levy of cesses es hholri, Londonation The directions of the Jhumpi Andhi, and Neola by istimrardars Government of Indiz contained in their has never been prohibited by Government letter is not law but executive instructions and is therefore pot illegal Colonel to the Cantonment authority not to take Dixons Robhar of 1857 relers only to legal action against epcronchments on patels and Bhumias and not Istimrardars Cantonments land in certain cases A (Joly JC) NITI | RAJU RAICHUD- Cantonment resolution of condonation SET confers Do legal title (Aormauj C) 4 J 108, TAIGI V AV 1936 J 44 ·47 AJMER LAW DIGEST. 48 CHILD MARRIAGE RESTRAINT ACT! CIVIL PROCEDURE CODE (V OF 1908) (XIX OF 1929) -S7, S 47 and S 52-Ertent of a -Court has no poi er to restrain a legal Representatre's lien on immote marriage contrary to Child Marriage able property of the judgment debtor- Restraint clct Small Cause Court can consider the question in proceedıngs under S 52— Court has no power to interfere to But it has no jurisdiction to make a restrain a marriage which is contrary to final determination on the question the Child Marriage Restraint Act (Norman JC) MAHENDRA LAL V MAGI A Small Cause Court can consider the LAL question of a legal representatives lien on 1936 ) 182 immoveable property of the Judgment debtor for the purpose of determining whether execution should proceed but it has no jurisdiction to make a final deter CHILDREN ACT (BOMBAY ACT, XIII OF mination on the question (Weston J C) 1924). HIRA LAL V NAD RAV 1935 ) 47 -Scope-Bombay Children Act -S 9-Sut to recover roluntary (VIII of 1921) extended to Ajmer. offerings or subscription-Not cognis Alertara urth curtain modifications able A suit to recover voluntary offerings Sec, Notification by CC or subscription is not of a nature cognis 1 J 29 (JS) able by the Civil Courts Therefore a Joshi or a Brahmin has no right to file a -Operation from June 1, 1926 suit for recovery of a 'Brit' against his See, Notification by C C. Juzman or another Brahmin who has 36 B 91 Not Foll 30 IC 1 J 29 (JS) recovered it 345, 1929 Pat 103 and OIC 223 Fol S. 52 (1) & (2) --Rules (Shannon JC) DIANNA LAL V CHITAR MAL. *5 J 4 (1) Seu, Chief Commissioners Notifica. tion, S 11--Not exhausti.-/ pretions 1936 J 16 (NS) proceedings a nullits --Yo Res judicata and 2 ) 21 (NS) The Section is not exhaustive on the -Institutions-amad subject of sesjudicata Where the previous proceedings were a bullity they could not be res judicata (norman JC) F. OTAR See Mouification by CC MAI CHATAR BRUJ V F. SUTAT RAM 1936 J 16 NS) POOVAV CHAD 1 ) 30 (IS) *5 J. 1 (III) end ·49 AJMER LAW DIGEST, 50 CIVIL PROCEDURE CODE (1908), S 11 CIVIL PROCEDURE CODE (1908), S 11 -S 11 - Party-Distinction beti een S 11-Vere mention of a debt necessary and proper party not material z ithout claiming a set off does 1100 l ar 17 separate sunt The distinction between a necessary and Where pluntiff was not bound to a proper party is not maternilon a que tion counter claim in the earlier suit the mere of res judicata, 103 Foll 12 C 80 & 27 A 59 Not Foll (Morian C) mention of debt (alleged to be due to the defendant from the plaintif) in the ASA RAV Y ABDUL RAHMAN written stale nent 5) 106 without attempt to convert the matter into a counter claim --S 11-Party s successoi-Will be cannot bar a seperate suit (Il eston JC) GAND LAI V AVP SIGHI bound if he is legal representatic in respect of the issue in question 1935 ) 37. S 11-Trial Court s decision i ould (c) In order that a judgment or deci hare operated as Res Judicata if no sion of an issue against one person may appeal had been preferred-But appeal operate as Res jud cata as against that filed--Appeil abated-Trial Courts persons alleged successor It must be decision operatus as Res Judicata shona that the successor is in fact the legal representative of the former party in An unsuccessful party cannot void ? respect of the issue in question In short decision from operating us Res Judicata unless the capacity in which the legal re by filing in appeal and allowing it to presentatie is sought to be made 1 able is abate (11 eston J C) DLPGAUI KITU AJA a capacity which has been derived by hun SAHIB y JAC DISH from his predecessor in ttle the previous 1935 J 58 judgment cannot be a bir under section ---S 11--1 imtution—mnist plea 11 CPC (Jolly JC) NATHL V RAJA dud at first opportunity RA CHOD SEN 4 J 108 point of Limitation must be raised st hen first opportun ty offers and when it -S 11-Prerris inquiri under Su? s not the matter becomes Res jud cata 3) Small Carme Court no bar to fresh Fa 23 18 B Olari 17 11 ( 11 Foll enquiry by Crul Court anders 17 (llurphy JC D B SETH Uurn VAL BHAGWT1 PFP 114D A previous enquiry under 5 52 CPC 2 J 62 by a Small Cruse Court on the quest on S 11-lanter of the extent of a legal representatives plea of Res Jud cail can be lived lien on immovenble property of the but z nere la lure to set it up in the trial judgment debtor is no bar to in eoqu ry court dces not amount to 1311er on the same question by the Cul Court OP 10 Follo1C 2) and 1974 under S 17 CPC (11 estoa ja) til 100 Duit (lo manj C) MAN Hir, LAL Y NAND RIV | BEGIVI 1pIL SIVID 1935 J 47 6 ) 57 ·51 AJNER LAV DIGEST. 52 CIVIL PROCEDURE CODE (1908), S 11 | CIVIL PROCEDURE CODE (1908) S 11 S 11 and 0 23 R 14Partition (3) There is no authority for the pro IVithdrai al of sunt no bar to fresh smt position that an order at one stage of a proceeding operates by implication as res A partition suit withdras under judicata in respect of an issue raised at 1 0 23 R1, without any determination Intier stage of the same proceeding 9P. of questions in issue even without permis 306 Rel (Jolly J C) ABDUL AZIZ » sion to file a fresh suit does not bar a CHAND MAL fresh suit on the recurring cause of action *4 J 94 46 A 820 od 28 A 627 Foll (l'eston JC) FATVA V FAKHRUDDIN, S 11 (Cxpl IV)- Constructie Ros 1934 J 118 Judicata-Eiccution--Cautions appli cation Execution Proceedings (d) The doctrine of constructive res -S 11-L recution Procecdıngs judicata is to be applied cautiously to Principles (110t section) apply execution proceedings 2 A MI L J 62 Appr (Broomfield J. C) ABDUL MAJID S 11 does not apply in terms to the v RBS BIRDH MAL proceedings in Execution but the princi 3 J 59 ples embodied in the rule do apply 6 A. 268 and 8 C. 51 Foll, (Wurphy J C) -S 11 (Expl IV)--Execution-Pro DB SETH UNED MAL V BHAGWATI cccdıngs-Cautious application PERSHAD 2 ) 62 The doctrine of constructie Res Judi cita when applied to execution proceed -S 11 (Explanatı n IV)--Erecution ings must be extended cautiously : c to Proceedings-Principles of constructure the limit which is necessary to prevent Res Judicata appis abuse of the procedure of the court but In construing whether constructive with due regard to the nature of the pro res judicatı arises the court must consider ceeding and tne d fference between such whether the object on which is alleged to proceod ngs and regular suit (Vurply be barred by res judicata was one which JC) R B SETH UVED MAL V BHAG the Judgment deb or was bound to raise 114T1 Persian 2 J 62 at an earlier stage At whatever stage the judgment debtor does ruise objections S 11-L recution-Decrce holder ho must in se all lus objections 37 A 589 setting his apelication dismissed before 17 A 8G IS A 201, 53 4 717 Discussed notice to jugment debtor-It not les V LJ 91 Dist (lorman JC) judicati ARAIX DAS v Paras RAM 1936 J 173 (2) II here an order directiog execut on has been made on an application that order, -S 11 (Expl IV)-Erccution-Order not reversed in appeil will for the pur at one stage does not opurate as rus sose of 1 subsequent application be con Judicata against order at another stage clusive about the validity of the origina ·53 AJVIER LAIV DIGEST 54 CIVIL PROCEDURE CODE (19)8, S 20. application But when the execution application was struck off at the request of the decree holder even before notice was issued to the judgment debtor the question of the application's validity is not res judicata in a subsequent applica tion 8 C 51 Dist (Jolly J C) ABDUS AZIZ V CHAVD MAL. 4) 94 CIVIL PROCEDURE CODE (1908), S 21. The general rule, that the debtor is bound to make payment where the creditor resides, does not apply when the creditor lives ouiside the realm 53 C 88 Foll (Norman / c) HAR LAL RISHAB DAS v LESKI MAL 1934 J 44. --S 20 (c)-Promissory note--Court of place of assignment also has jurisdi (tion - S 20 --Whether suit trible by Small cause court-Depends on plaint and not defence Denial of plaintiffs title by defendant would not affect the Jurisdiction Jurisdic tion depends on the frame of the suit and not on the defence set up 26 1 C 129 and 32 Bom 396 Rel (Baher ) ) KAN MAL Y LALIIVI CHIAVD. 1926 S 17 The assignment of a promissory note at 7 particular place is a part of the cause of action and gives the assigaee the right to file a suit on the promissory note at the place of assignment 37 IC 081 1933 Suud 179 and 22 C 101 Folk 61 C 65 and 1929 Cal 306 Dist (Norman J.C) MAHE\DRA SINGH RB TIKAV CHAND 6J 3 -S 20 and O. 7, R 1-Caust of ---S 21-Decree by court haring 110 action neither pleaded nor proced- territorial jurisdiction-Sutt to set it Comt has no jurisdiction aside lies Not so in casc of defect of pecuniar) jurisdiction Plaint gives no indication as to how the cause of action arose within the courts I separate suit to set aside a decree jurisdiction No mention 15 to where passed by a court without territorial juri the price was payable No evidence ledsdiction is maintunable because there is a upon the point Held, as plaintiff has not lach of jurisdiction ab inito but no suit attempted to show that money #7s pay 11 oud lie on the ground of want of pocu able within the courts jurisdiction and mary jurisdiction alone The reason being not to his agent or cani esser » ho made that an error in saluation of a suit does the contract at Umreth in the Bombay not oust the jurisdiction of the court to Presidency, the court had no jurisdiction decide that point and will not necessarily (Il'eston JC) B P B14RGASAN CV result in the decree in that suit being set Sj1411 Co aside as a oullity under section 11 of the 1934 ]. 103 suits valuation Ict by an Ippellate court even if the decisioa IS WIDE 22 L. -S 20 (c)-Creditor outside the 120 Rel (Jolly J. C) RAT LAL Y. roalm--Dubror hot bound to put here Viori LAL creditor resides 4) 1031 ·55 AJMER LAW DIGEST. 56 CIVIL PROCEDURE LODE (1908), S 34 CIVIL PROCEDURE CODE (1908), s. 35. S 34-Instalments-Lquitable to Pleader s fee should be calculated on allou future interest the value for jurisdiction and not on the value for court fees. (Norman J. C) \Vhen instalments are allowed it us AZIZUDDIN MADRO RAM equitable to allow future interest (Normon 1936 J. 149. JO) KANHIYA LAL 1 HUNJA *6 1 -S 35—Plcader s fees-- Defendants confess judgment after issues-Calcula -S 34 and 0 34, R. 2 and R 4- tion as in an uncontesteil claim Mortgage suit interest --S 34 ha 110 application--031, RR ? and 1 Even when defendants confess judg apply --interest at stipulated rate must meat after issues have been framed he allou cd up to date firell for payment pleader's fees is to be calculated as in an in decrec for sale ruasonable rate be uncontested claim. (Jolly J. C.) SHIVE allou cd NARAIA Y RAJA RANCHOR SEN *3 J 6 S 34 of CPC. does not apply to mortgage suits These are governed by - S. 35--Tro sets of defendants- O 34, R. 2 and R. 4 And the consequence Their defence substantially the same is that interest must be allowed on the only one set of costs to be allou ed principal to the date of the suit at the rate There were two sets of defendants. provided in the mortgage, and also at the Their defence was substantially the same. same rate from the date of the suit up to the date fixed by the court for payment of They engaged separate counsel because they were not on good terms with each the mortgage debt, and that in a decree other Held, Plaintiff should not suffer for sale it may be allowed on the aggre for the quarrels of defendants only one gate of principal, interest and cost from the date fired for payment to date of set of cost was allowed. (Norman J. C) LAL CHAD 1 RAY BILAS. realization at a reasonable rate (Jurplıy 1936) 63. J. C) KALI MAL Y Sillo Das. 3) 17. S. 35--Scope-Cosis not follou ing S. 35-Pladers ful-Ordinarily the ctent-Judge must gite mus reasons allowable on cross objections The ordinary rule is that costs follow Plender's ſee is ordinarily allowable on the event and if the Judge decides othercross objections forwani C) Ariz wise he is bovod to give his reasons. LODIS, VADIO RAY. (il orman ). C) LIL CHAD V. RAY 1936 ). 49 Bilas. 1836 J. 63. S 35-Plauder's fic-Calculation on salue for jurisdition and not on -S35--Corts Quantuu mn smut for alue for court fucs damages ·57 AJMER LASV DIGEST 58 spec al CIVIL PROCEDURE CODE (1908) S 35 CIVIL PROCEDURE CODE (1908) S 38 In suits for damages it is usual unless proper order about costs is to order the the amount of damages has been del ber? parties to bear their own costs (Broomfield tely exaggerated to increase the costs to JC) MST KAJJI V MAVF KUAN anard full costs to a successful pla ntiff 3) 64 even though the amount claimed may not S 35 Practice at Mount Abu be an arded in full (Vorman JC) AHIDUDDIN BEG Y MAZADAT ALI To rules regulatiog the assessment of 1934 J 34 counsels fe in Mount Abu have been prescribed The matter therefore lies in ---S 35-Suit against Suveral Rail the discretion of the Court Special ways--Railway liable should pay costs circumstances de nand rules of Railuay xoncratud (Norsian J C) THIKANA KUETI Y V RATI RAM GHISA RAM When goods have travelled over the *1931 J 99 systems of more than one Railway plun tiff is practically bound to sue all the -S 35 and S 100-Costs-Princisi companies concerned since he does not in oli cd-Suconi appu illius know where the missing goods are Ordiparily therefore it would be equitable (a) A second appeal would lie with that the company found liable should pay regard to costs whe e question of principle the costs of the company exonerated is involved (Baler / c) S GADI MAL (Norman J C) BIRY & B B&C V ABDLL RAHMAN RY. I SITAI AM AJODHYA PCRSHAD 1926 S 38 6 J 64 -S35-A-Se ont appeal --S 35-lo trial merits-Bist Suc CPC-S 104 (1) dismissal for reasoi s beyond party s -S 38- Consult decreu passe I though control-Ea li party list buar its costs party absuit-Coirt exciting such (6) Where a suit isot tried on merits ducru, canot go bhuill decrc but is d smissed for reasons beyond the Ord ac ly the exe uting Court has control of the parties the ordinary rule is Dot po ver to go behind the decree and to mal e no order as to co ts or to d rect refuse to execute it in exceptional cases that each party should beur hs own costs such as where a decree has been passed (Balerc) SGDI VIAL LODIA V against a person who was dead 2t 15 open AUDUL RAHMAN to the elecuting court to treat the decree 1926 S 38 as nullity thich on the face of t it is S 35 - Ruma 1-Du to stile of An er par e decree passed without record court-Pantros tobuar tlcir costs iDg evidence may be a decree wh ch is Inable to be set aside in appeal but it is (1) VVhen remind is necessitated by not 7 nollity (11 eston J C) SHAVEI 7 mistale of the trial court and not on LI ILLINO account of any fault of the parties the 1935 J 19 on ·59 AJMER LAIV DIGEST. 60 CIVIL PROCEDURE CODE (1908), S 39 CIVIL PROCEDURE CODE (1908, S 60. --S. 39 (2)- Jurisdiction of Subordi 111 proceedings under S. 52-But it has natc Couts--It must hate pecuniary tio jurisdiction 'o mate a final determinar Jurisdiction to pass the secret tion on the question The Subordinate Court to which a A Small Cause Court can consider tlie decree is transferred must be a Court question of a legal representatie's lien which would be ccripetent to execute the on immoveable property of the Judgment decree as an original court, that is to say, dehtor for the purpose of determining It must be a court which has pecuniary whether execution should proceed, but st jurisdiction to pass such a decree. (Weston has no jurisdiction to make a final deter- J.C.) Her RAM JETII MAL V FIRY mination on the question. (Il'eston J. C.) TULSI RAV R SWARUP. HIRA LAL v. NAMD Rav. 1933 J 18. 1935 J. 47. --S. 42-Exucution-Executing court cannot question jurisdication of the court which passed the decice -S, 52-Enqury as to assets to be made in Erecution. Pro ccdung and not before Decrcc It is not open to an executing court Wheher there is any estate left by in execution proceedings to question the the deceased is a question to be decided jurisdiction of the court which passed the at the time of Execution of decree. decree Two exceptions are (1) when a (alachlin J.C) RATI RAY DHAPLI. decree is against a dead person and 5. J. 2 (II). (11) when a decree is of a foreign court, IR. 180, VIC 627 Foll 53 C. 166 --S. 55 (4) --Surety bond for appea and 1932 Coil uso Diss ( Aman JC. rance -- Judgment dehto, filing lisoliency NAND KISHORE V BAI ATRON NALAN petition-Surly not discharged: 6 J 11. The fact that the judgmeat debtor has filed a petition 11 insolvency does not --S 47-Plaintiff's remedy by exech operate to discharge the sureti, 46 B 11011 proceedings and 1100 Sutt when 702 Foll. (Jolly). CTry PAL JAI defendant it possession KISHORE +4 ). 6. Plaintiff's remedy is under S. 47 of the Code Civil Procedure and not by suit ---S 60 (1) (c)--Toun residence can be ir defendunt obtaids actual possession, attached of agriculturist 1155 another however wrongful of the land in suit. house for agricultural puposes (IV.ston J. C.) ABDUL ROMAN V. RASUL BUA. Under Section 60 (1) (c) of the civil Procedure Code a town residence of an 1935 J 82, agriculturist debior is attachable when he -S, 47, S 7 and S. 52- Cxtent of has another house which is used for legal Refrescalatiti's lien on mmor e able agricultural purposes. But where he has property of the Julgilent debtor-Small no habitable house on his land and the Cansu Court can consider this question house in the town is the only one that he ·61 AJMER LAIV DIGEST. 62 CIVIL PROCEDURE CODE (1908), S 60 CIVIL PROCEDURE CODE (1908), S 95. actually lives in and uses for the purpose For purposes of rateable distribution of heep ng his cattle, the house ip the it is not necessary to attach the property, town is exempt froin attachment In mere making of an execubon application such a case it is immaterial that he has before sale proceeds are received is sufficient another house on 12- land in 2 dilapidated (Jolly J C) BAISI LAL Y. SAFIUDDIN, condition which would be available for 3 J 6 purposes of residence if it were put in S 89 Does not altcr old lar. order, 7 BLR 68) Rel 19 AL 227, 7 B 90 and 15 1.C 516 Dist (Taclim JC) S 89 of the Civil Procedure Code JAU AUIR MAL V. GAI INA (1903) does not alter the old law at all, 5 J 45 the words any other law for the time being in force' do not refer to statute law S. 60 (h) and (i)--Leare pr9-Less alone, 13 108, 51 B 908, 51 M 800 tranı salary--It is wholly exempt Foll 49 C. 608 and 1933 Lah 146 Not applicable (as they applied to award mnde The word 'salary' in clauses (h) means without interiertion of the Court during the pay of a post drawn by a man on duty, pendency of the suit) (Norman JC) while the word 'allowance means all that AVBA LAL V HARI SHANLAR the incumbent receives in the shape of 1934 J 81 leave etc while absent from duty 1 he S. 92-Decrce not exhausted by mere leave pay is worhed out at the average pay for the preceeding 12 months and if inaigration of scheme-Courts duty to it is le s than the salary of the post it is te olh the scheme wholly exempt from attachment under A decree passed in a suit under S. 92 cection 60 (h) CPC (Jolly J C) B CPC is not exhausted by mere inaugra BHAGWAT SIRAIN V RADHFI SHIAV. tion of the scheme decreed but the court 4J 37 passing the decree imposes a duty on tself to keep the machwery of the manage -S, 60 (i)-Indian army Officer s pay ment go ng on in accordance with the -A micry is attachable scheme inaugiated (turpis J C) THE (c) Before 1914 the pay of an officer of GENERAL MAVAGER COLAT OI IVards, the Indian army who was a public servant AFZAL HLSSIV. was exempt from attachment under S 60 2 ) 81 of the CPC but after the amending act S 95-Security furnished before of 1914 noiety of such pay is non attachment-Suction las no application attachable 39 IC 92 and 3 B 716 Foll (Bailca JC)) R DAJI v GR (a) IVhen security is furnished by the HUGIES. defendant before an attachment is actually 1926 S eflected no application under S 95 CP C. lies (1urphy JC) BALL RAV I. Firy -S73-Crecution application suit P44 RV GL LAD CHAND) cient-ellaclinent not necessary 1927 S 17. { ·63 AJMER LAW DIGEST. 64 CIVIL PROCEDURE CODE (1908), S 95. CIVIL PROCEDURE CODE (1908), S. 96 -S 95- Attachment when etlicted (c) Under the new Civil Procedure Code it is not necessary that the order (b) whes property is actually attached awarding damages under S 95 should form and entrusted to the porson who gives part of decree 17 ].L.) 310 Not Appl. security for the defendant, the attachment ((Baler J C) Firy NC KAVRARIA & is effected ithin the meaning of S. 95 Co. v, MOHAVCD HUSSAIX. CPC, 1923 Bom. 357 Dist (Baker 1925 S, 17. J.C) Tiry NC KAVKARIA & Co. v. NOHAVED HUSS41\. S96-Abatement as a uhole-11 1925 S 17 111 thic lature of dismissal-Areal les 15 three fit? S. 95-Attaciuent 01 insufficient (1) The Civil Procedure Code does not grounds-It necessarily causes danlage. contain any specific provision for the abatement of a suit or in appeal as a (c An order for attachment made on bole when the nght to sue or appeal insufficient grounds must necessarily cause does not survive. Such an abatement is damage to the credit and reputation of really in the nature of a dismissal of the the opposite party 3? Vad 170 and suit or appeal as incompetent and amounts 121C507 Foll (Baher J C) N. C. to a decree. Consequently an appeal lies KANKARIA & Co v. MOHAVID HUSSAIT from such an order. 17 A. 172 and 20 1925 S 17 MIL). 214 Pef 1 L. 582 Foll. (JollJC) KAJORI MAL v. BEHARI LAL. S 95 - Damages ---Attachment On 4). 77. LIISufcient grounds -Compensation atuariabic SS 96 aad Sch II, Para 16 (2)--Derree on atcard - No appeal Revision doubt (d) Damages are disided in classes An appeal against a decree based on (a) Damages to a man's famne () Da an award is incompetent and it is very mnge done to the person and (c) Damage doubtful n hether even a revision anplica. to a man, property. Whe: no physical tion would lie A new objection against damage has been done no question of an aund cannot be allowed in revision. 'mental and Physical damage arises Jolly J. C) HIRA v. LALA But hen ad attachment is effected on *5 J 11). insufficient grounds compensation nardable and it matters very little by -S 95-Sprecessful defendant can bat bame the damages are described appenl of decree negalites a right claimed (Bakar y c) FIRU X. C. HAVARIA by hum Co V. MOHAVFI HUSSAIS. 1925 S 17 (a) A defendint has a right of appeal, even when the decree is not on the face of -S, 95-Order au arding damages it agunst him, if it impliedly negatives a Seed nol forn part of de rcc night clumed by him aguast the plaintiff IS ·65 AJMER LAW DIGEST. 66 CIVIL PROCEDURE CODE (1908), S 99. CIVIL PROCEDURE CODE (1908), S. 100. or the otber defendants 21 d. 117 and Costs. 9 0 V. N. 58 Rel (Broomfield ) c) S 100 and S 35-Costs-Principle MIST. KAJJI V NAE KHAN 3 J. 64. nolied-Second appeal lies -S 99--Sunt triable by munisif-Trial by Subjudge-Vere ur regularity (1) The trial by ? Sub Judge of a suit triable by a Muosif is a mere irregularity curable by S 99 C PC, 2 ANI L 9 Foll (Jolly J. C.) PAHLAD V, BALA PERSHAD. 4 J 61 -S 100 (a) a second appeal would lie with regard to costs where question of principle Is jo volved (Baher J C) S. GADA MAL LODHA 1. ABDUL RAHMAN. 1926 S. 38 -S. 100 and 41, R. 22-Costs- Varjisig order of costs of trial Court 11 absence of appeal or Cross Objections is 1 roid Burden of Proof Trial Court orders each party to bear its own costs The lower appelate Court's order is, 'I dismiss the appeal with costs in both courts'. Cosis Documentary Evidence, Findings of Fact (1) when interference (11) when no interference Joint Family Property Malicious Prosecution Held, This is a slip If an appeal is dismissed the order of the Court below including its order for costs stands. That order can only be set aside on appeal or cross-objection (Vorman). C) Guast RAMBADULLA *1934 J 26. New Point Relief. Respondent Documentary Evidence. Title. S 100—Documintary Evidence Construction of a document is question Burden of Proof, of latu --S 100--Burden of Proof-'l'hether correct conclusion dratt regarding dis charge of ons is inference of lati (2) Whether correct conclusions had been drawn by the lower courts from the facts proved regarding discharge of onus is an inference cf law and a second appeal lies 29 C 218 Diss 1926 P. C 77 Rel (Shannon C) ABDUL BISHIR Y Mist, BI-VILLAH BIBI 5) 36 The question of the construction of a document is a question of law which may be taken in Second Appeal, 2 A. 11 L. 38 (737) Foll (IVestonj C) KAN MAL V ASA NAVD 1934 J. 113 S 100 Documentary Eriderice - Afmnciation of Documentary Esidence is question of fact ·67 AJMER LAW DIGEST. 68 CIVIL PROCEDURE CODE (1908), S 100 CIVIL PROCEDURE CODE (1908), s 100 No question of law arises merely A decision on facts can be attached in because some of the endence considered Second appeal of it is based not on legal was documentary The construction of a evidence but on mere conjectures Dis document may be a question of lasy but crediting evidence on general reasons only appreciation of the evidentiary vniue of not affecting the credit of any particular statements contained in documents which svitness is an error in law which allowed are not do umeots of title upon which the the superior court to interfere 1928 Lal suit is based is no more 1 question of law 737 1926 Lah 465 nd 29 1 C 673 than is appreciation of statements in the Foll (Il eston, C) ABDULLA Y NARAJY oral testimony of witnesses (Veston JC) *1934 J 143 RAVA V BAHITI -S 100-Finding of fact--Inter 1935 y 75 ferecnc-No evidence or endence dis --S 100-Documentary Etidence helicted for 110 reason Funding of tact arrited from oral [t: derre and i anions documents binding- When there is no evidence at all for Legal effect of single document is point the fact held to be proved or where evidence is disbelieved for no reason at of lau all, High Court will interfere in second Where I point of fact is to be deter mined from oral evidence and the cons Appeal (Norman ) c) PIROO LAL V truction of several documeats no point JATAN LAL 6j1 of lau arises but there the legal effect of single document is to be decided in Fındıøg of fact-whep do laterference order to determine the terms of a contract S 100-Findng of fact--When no there is a point of law acd a second appeal interference lies (Norman JC) DCBI DIVI AVANT A finding of fact cannot be upset merely MIAL. on the ground that it is against the weight *5 ) 4 (III). 1 of evdence nor on the fact that the judge Finding of fact--when inte-ference has not an lis judgment referred to all the -S 100-Trading of ract - Inter evidence on the record (Norman JC) Icrence- hent judge msdsrect himself PIROU I AL V JATAV LAL 6) 1. Question of fact shob o dinni, ann nct be re opened in ecopd aprel may -S 100-Finding of fact-No inter be se opened when judge has ſerci cell lierc adm11ssion of ctidence m directed himself on the point (lorman JC) discretionary-Eidence not admitted VIRZA AMIDL DDIY Brosuplazhar When it is discretionary with a court ALI. to admit son e evidence and it does not 1934J 34 it does not constitute such an illegality as -S 100-rinding 01 facilmer 1973 necessitate interference on the rart ference- hen no legal etik nice or con of 1 Iligh Court in a Second appent jcctus& ordinesses disteho ci on gencral (1artin J.C) JODHA RAWA NAND grounds: 2 J 67, ·69 AJMER LAV DIGEST. 70 is CIVIL PROCEDURE CODE (1908), s 100. CIVIL PROCEDURE CODE (1908), S 100 Joint family property. S 100-llalicious Prosccution- Tlalice and want of reasonable and S 100-Joint family propertyprobablc causc ar fudings of fact Whether property is joint family pro perty-Finding of fact The findings whether the prosecution was n alicious and without reasonable and (a) Whether a property a joint probable cause are findings of fact. family property or not is a question of (Murply ] C) S ABDUL RAHMAN Y fact (Jolly J.C) LACIMI NARAIN V DIDAR BU RAY CHANDER 31.35 4 J. 22 New point. Malicious Prosecution --S 100-Net point-Decd not regis ---S 100-- Valicious Prosecution-Fal tered--Objection about tiladmissiblity sity, Malice, want of reasonable and can be taken for first time probablc cause arc findings of fact Objection about inadmissiblity of a Question (1) whether the complaint document on ground of cou registration was false, (11) whether it was malicious can be taken for the first time in second and (111) whether it was made without appeal (Jolly J C) M SUNDERSAN reasonable and probable cause are questions Dass v GULAB CHA\U). of fact. (IVeston J. C) ABDULLA V *3 J 4. NARAIN *1934 J 143 S 100- let pout-cannot be raised -S. 100-Maliciones which cannot be settled without a finding Prosecution- "Walıce' is finding of fact of fact It is not open to & parts in Second Whether there is malice or Dot is a Apeal to raise a new point which cannot finding of fact which cannot be chailenged in second appeal (\orman JC) be settled without a finding of fact either in the trial Court or in the lower appellate G CORNELIUS Y REV LAKSHMI CHAND *6 | 6 Court (lonman JC) 4VAR CHAND V hiva S 100-Alalicious Prosecution- *1934 J. 101 Reasonablc & probable causu, and 'quantum of damages an findings Relief of fact S 100 and 0 7 R 7-Relief-ligh Court ci Whether there was or was not reason grant proper relictch though not clan et 1 lower courts i facts able and probable cause or malice are ques stated in plant tions of fact so also whether the damages awarded are suficient ar bat. To second (a) in view of 0 7 RIC PC appeal lies on these points (Vorman JC) there is nothing to present the High Court Deri DIANAT VAL. in Second Ippeal from granting the proper *5 ) 4 (IUI) relief to a plaintiff even though it was pot malice ·71 AJMER LAW DIGEST. 72 CIVIL PROCEDURE CODE (1908), S 100 claimed by him in the lower courts where the facts on which such a relief can be granted are sufficiently stated in the plaint 27 N L R 327 and 27 A 321 Rel (Macklu JC) WARSINGH DAS V NARAIN CIVIL PROCEDURE CODE (1908), S 104 (1) It is the nature of the suit and not the manner in which it is tried which determines whether a second appeal lies or not, 57 IC 557 Foll (Baker) c) MIST BACCHI v DEBI PRASAD DAS IJ 25 5) 73 -S 102-Does not bar Second Appeal Respondent in rent shut 110t cogniçuble by the Snall Caitse Court -S 100 and O 41, R 22-Respondent- I rent suit which is not congnizable Cannot re open findings of fact under Art 8 of the rovincial Small (1) A respondent is a Second Appeal Causes Courts Act hy a Court of Small cannotre open issues of fact decided against Causes for want of a notification by the him by way of filing cross objections Local Government as required by that (Jolly J C) KAN MAL V ASA MAND Article is not a suit of the nature cong012 4 J 84 able by a court of Small Causes within the meaning of S 102 of the Civil Procedure Title Code and a second appeal is not barred S 100-Tille-Is question of fact in such a suit 23 SI 547, +1 B 367 Dest 42 C 638 37 IC 980 Foll 3R 390 Title, unless it depends upon the con Diss (Norman JC) Sue CHARAN V struction of a single document, is a ques L FATEH LAL tion of fact which cannot ordinarily be 5 J 78 gone into in Second Appeal (Torman S 104 (1) (c)--Exccutious of award JC) HARI DAS I VIUNICIPAL Covni mder Co opuratic Societies actAppeal TTET VJVER lics 1934 ) 61 An appeal lies on a question concern S 102-small can15c stuttrici as ing execution of an award under the regular stul-lo second appeal Co operite societies Act 1926 Lah 547 If a Small Cause Suit is tried as a Foll 40 89 Dist, 1925 Lal 203 Disc regular auit even then s 102 of the (Broomfield J C) A LAKSUVI MARAIN CPC applies and no second appeal lies V LAL CHAND (Bakr JohAS MAI 5 J 30 LAKINI CHAND --S 104 (1) (ff)-10 scoil appcal 1926 S 17 against apnellato order refusing special costs S 102-Suit of a nature cognstable by SCC Act-lo second appeal no Second Appeal lies against an appellate order refusing special costs (A) (1) No second appeal lies of the suit (Norsiah C) AZIZUDDIS ! Vadilo is of the nature cognizable by the Court of RAM Small Causes 1936 ) 149 ·73 AJMER LATV DIGEST 74 131 CIVIL PROCEDURE CODE (1908), S 104 CIVIL PROCEDURE CODE (1908), s. 110 ---S. 104 (1) (g)-lo application to -S 105 & 115 --RevisION docs not orders by Small Causcs Cout ordinar ly lic wlient appcal lies from decrce except tulcit difiat of law and (a) A revision would lie against an grare wrong are manifest and are 1100 order of the Small Causes Court under remediablu by regular procedure S 95 CPC as S 10+ clause () has no application to orders of that Court, 50 C Although instances exist where High 886 Foll (Barer C) Firv \ C Courts have interfered in Rivision when KANKARIA & Co, v MOHAMED HUSSAIN rel ef possibly could have been obtained at 1925 S 17 a later stage by appeal the general prin -S. 104 (2) and O 43, R1 (k)—ciple is that where an appeal is provided Abatement sut aside-o serond appeal the court will not interfere by any peremptory order with the ordinary course No second appeal lies agaisnst an of adjudication save in cases wherein a order passed on an application made under defeat of law and a grave wrong are 022, R9 CPC (Amplig I c) manifest and irremediable by regular SUNDER LAL V MIST SUGMI procedure 7 B 341 1 A TI LJI 3 / 19 1 & AIL J 29 A. YLI 53 (at page S 105-Ex ou te Procedusgs 06) and 5 A M L J 97 Foll (IVcston Surt-TI. 1r propriety can be considuel JC) MAUL4 BLIV SODIAG MAL 1934 J 105 (6) The propriety of ex parte proceed ings can be considered by the Appellate (VB --Full References to cases are given court even in an appeal on merits 30 11 under S 115-interlocutor order and other 54 and 46 B 18+ Foll 3 C 738 2 R 108 remed) and 39 A 143 Diss (Broomficltc) MST hajji v NAVNE KHAN --S 109 (c)-Certificate 35 64 When a suit cannot be ---S 105-Scope-O ter scttung aside money a certincate of leave to appeal to crparıc ducrec or abatumunt-Cannot be Prusy Cour cil can be granted only under challenged in appeal S 109 (c) (lorianC) GANGA DUAR The words 'affecting the decision of BENI GOPAL mean affecting the merits of *6 J 4 An order setting aside abtement or an ex parte decree is not an order --S 110 1) & (2)—Scotc affecting the merits of the case Such an order therefore cannot be challadged in (a) The clause (2) of S 110 CPC is appeal within the ineaning of S 105 to be read as an alternative to the abole 50 C 21, PC 1.2 17 5 31 BD of the ultuse (1, and not merely as an and 6 L 9. Foll (Jolly J C) PITTAD alternative to the second restrictions in MAL Y RAVA \A10 clause (1) 192, Ran 1 Dist VSI 4 J 19 and 21 d. 171 Expl valued in 1 V the case the case ·75 AJMER LAIV DIGEST. 76 CIVIL PROCEDURE CODE (1908), s 114. CIVIL PROCEDURE CODE (1908), s 116 (6) 11 here the decision in appeal -S 115-Amendment-Refusal affects loterest in property of the value of allow amendment hot reuisable ten thousand rupees or upwards even (d) Refusal to allow an amedment of though outside the immediate subject the pleadings is not open to revision, matter of the suit Clause (2) of S 110 1 AIL) 17 (?) and 29, 3AVLJ would apply. The criterion for the applı 17 Rel C. R 57 of 1928 Not Appr cition of Clause (2) is the value of the (Broomfield J.C) KHADIUS OF DURGAHI detriment to the party seeking leave KHWAJA SAHIB I DIWAN Arci RASUL arising directly or indirectly from the KIJAY decision in appeal (Jolly J.C) RSP 3 J. 53 CHA DRIKA PRASAD Y BB&CIRI 4) 52 S 115-Amendment-Order refusing anendment-Is interlocutory-- Vo Ret: -S 114-Sec under, 'CP.C-O 47' 51012 --S 115 (a) An order refusing amendment of Amendmeut plaint is interlocutory and no revision Appeal. lies (Murphy J. C) GOPI KISHEN v. Award RAM PAL Court Fees 1925 S 21 Discretion Appeal Error of Law S 115-Appcal-Second appeal can Interference be ticated as Revision application Interlocutory order, When the Lower Appellate court has Jurisdiction acted in the exercise of its jurisdiction Liberal Interpretation illegally and with material irregularity Limitation for Revision the High Court can treat the memo of No loterference second appeal as revisional application Otber Remedy and revise the loser appellate court's order (Hurplis j C) AZAM ALI MIST Scope NASVI BIBI Amendment 3). 13 S 115 and 06, R 17-wind Award 11111- 11 order refusing amendment is casedicile! S 115-mi ard-Procudun and order nitisable A refusal to allow amendment is a cuse decided within the meaning of 115, (a) ln award is intended to have fina Il ll jy Foll (11 stou j. c) buty but the better opinion seems to be CI14 Vu Y YouTUVAD HUSSAIN that resiston 15 admissible for the purpose 1935 ) 100 of setting right the procedure and ord ·77 AIMER LAW DIGEST 78 117 CIVIL PROCEDURE CODE (1908), s 115. CIVIL PROCEDURE CODE (1908) S 115 of the Judge dealing with the objections If a judge has in coming to his con 36 Bom 105 Rel (Murping 1 C) BH4\. Clusion entirely ignored a provision of HARI LAL 1. FIRU GHIS LA. Statute Lav or if he has given to a provi 1927 S 26 sion of Statute law an obviously impossible interpretation that would justify inter ---S 115-At ird-Retision lics ference in revision But interference in sitable coses. Revision is not permissible if the Judge A revision application would lie to the has considered the law and his interpreta High Court if the court proceeds in such tion of it is a possible one even though a manner so as to come within the ambit that interpretation be contrary to the of section 115 CPC (Jolly J C) interpretation put upon in decided cases, CH.G4N VAL V VAD VIAL 1935 Bom 272, 1935 Cal 102 1935 All *3), 1 353 and 1995 I M L J Supplt 9 Disc Court fees (Norman C) hrvtoo LAL V DALLAT RAV. -S, 115-Court Fees-Revision lies 1936 J 4 Revision lies on question of Court Fees 55 A 274 Foll. (Norman J.C) S 115-Error of Law-Ao relis101 CHAIBRI BAI v NOOR MONAVAD. on ground that decision is crroneous 6 J. 46 (a) When a court has jurisdict on to Discretion, decide a point it can decide it rightly or urongly and no Tevision lies on the ground -S 115--Discretion Interference that the decision is errorneous, 45 A Foll ulei discretion allowing further evidence 48 U LJ 319 Dis (Broomfield 1 C) not judicially excrcised KIADVS or DUNGAN KUNA SAHIT Assuming that the trial court had dis DEWAN SID ALEI RASUL KHAN cretion to allov evidence at late stage 3 J. 53 that discretion was to be exercised judi cially Wien there has been no exercise ---S 115--Lrror of Lau-Trial Court s of judicial discret on High Court Itt a roug-Still no Rutis on interfere (ll_ston J C) F SHEO CHAD If a court exercised jurisdiction iQuest RAI SIICO MARAIS GII DRARI LAL ed in it but its veu on the point involved KHUSHI RAM is wrong it cannot be sud that the court 1935 ) 118 refused to erercise jurisd ction (Murphy Error of Law JC) St\DET LAL VIST SLGNI. under sub hending - Yo 3) 19 Interference, belon) --S 115-Error of Lau - Rettsion les -S 115-Lrror of Lau - Interference on error of jurisdictin but not on trong Only v Loter Court has igion 1 Statutory decison--High courts hard interfered to prot 1910 or put obtrously impossible correct gross and palpable errors of las interpretation or tact (Also sce ·79 AJMER LAW DIGEST. 80 115. CIVIL PROCEDURE CODE (1908), S 115 CIVIL PROCEDURE CODE (1908), s. 115 When a court of inferior jurisdiction (6) A wrong decision on a question of has mnde an order which it is not empower limitation is not per sc ground for inter ed to make, that is to say, when it has fering in revision either under S. 115 of erred as to the extent of its jurisdiction a the CP. C. or S. 25 of the Small Cause High Court can interfere but when it does Court Act, especially when substantial so beciuse of a mistaken view of the justice between the parties has been done existence or extent of his rights the High by the Lower court (Vurply J. C) Court cannot interfere under S SAWWAL RAV V NAVITS KHAS. Merely to decide wrongly is not illegal or 1925 S, 6 irregular S 115– Il'rong decision 110 ground It is true that the Law Reports contain for Icision—But Rotision lies where cases in which eminent Judges have inter dissegard of lan fered to correct gross and palpable errors (6) Where a Court has applied its mind of law or fact, 11 C 6 401. C 650, 51 to the law and decides wrongly there is 1.C 873, 4) A.425 and 41 C 323 Ref no revision but when at disregards some (Bakr J C) VADA LAL V. GOKIL provisions of law and has not applied its CHAD mind to that provision 2 revision lies, 2 ] 16. 82 I C. 658 Reli (Baker) C) JUG RAJ ---S 115-Erior of Law - Wrong deterv VAIA RAM mination no ground for interference 1926 S. 6. Interference Section 115 is exclusis els concerned 461th the question of jurisdiction --S 115-Interference- IV hen no ren determination is not failure to exercise SONS gitull Jurisdiction (Baharj C) Moti LAI IVhen no reasons are given by the 1. Virsli Bul A141501) LTD, lower Court for its decisions it is open to 1 J 29 the Fligh Court to go into the point ---S 115-Lrror of Lau - Wrong deci (Verman J.C) M 11 4SVAT ULIAI BASTI BIBI Sion in final decree on lau point-lo CJ 27. Rotis10n. -S 115-Interference-Point nol rais (6) A song decision in a final decree, ai in appeal but raistiin rutieu - Lor er that is 1 decree not subject to appeal, on Court 1 ejected it on trong tict of lawa point of las involving no question of It can be retisedian Ret 181011 jurisdiction is not subject to revision, (urphy JC) LADU RAY RBS Where appellant #ants to be allowed CHAMPA LAL to argue to the extent of Court fee paid 1925 S 11 within limitation, this ought to be put forward by hun as an alternative plea S 115--Tºrror of Loe -Il rong decs when the appeal is argued But sheo sion on Limitation-lo regio" this ples v 15 urged in review applicatico Wrong ·81 AJMER LAIV DIGEST, 82 CIVIL PROCEDURE CODE (1905), s 115 CIVIL PROCEDURE CODE (1908), s. 115 which was rejected on a wrong view of (a) Discretion to fix instalments is a law and not on the ground that it is not judicial discretion and failure to exercise urged in appeal, it is opea to the High it in a judicial manner is a valid ground Court to allow it to be raised in revision for interference in revision, 7 L. 393 and (Norman J. C) MD HISVAT ULLAI V 11 C L ). 431 Foll (Jolly J. C) FIRM BASTI BIBI, BRDI CHAND SUGAN CHAND V. MOTI 6 J 27. Lil 4J 76 -S. 115–Interferenc-Entertainment of an application presented by a person ---S. 115– Interference - When finding not legally entitled to present it-olves basu i on irreletant cvidence on 110 et doncc a question of jurisdiction Where a finding of fact is entirely un (1) The entertainment of an applica supported by evidence or based on irrelecation by a person not legally entitled to vant evidence it amounts to an legality and can be interfered with in revision present it is a question of jurisdiction (Norman J C) GOPI NATI Y. BIHAR 9 A 198 Foll (Jolly J. C) MANGILAI LAL v. GOPALJI 5). 89 *4 J. 2. S ----S 115--Interference-Suut decided 115-Interfercice document admitted-But subsequently rejected in on an issuc 110t framed-Material irregre larity violation of Stamp Act, S 36 (a) A rejection of a document, which \Vhere a court decides a suit on an has been admitted in evidecce, for wat issue which has not been framed the of a stamp in violation of S 36 of the court exercises its jurisdiction with mate Stamp Act Is a grousd for ression, rial irregularity (Jolly J C) MOUL 18 BOM 737 Foll. ŚCI! A 981 Diss CHAND V. Sri KISHLA, (Bahero) JUG RAJ V. MAIA RAM *5 J. 3 (1) 1926 S. 6. -S 115--Interference-Comt rustorul --S. 115--Interference-Run allor satt (or set aside expart. dccrue) con U-11 ron, ouder Irary to OO (c) i revision lies against a WT006 (c) If a court purports in the exercise order allon ing review (Wurphy J. C) of its inherent jurisdiction to act other GI LSH 145 1. IDLR BHAN wisc than in accordance with the prouisions 1925 S 1. of O. 9, R 9 or R 13, it must be held to have evercised a jurisdiction not sested S 115– Inturfuranto-Lour appe dismissed 10 it by lan, (Jolly J C) GORDIAN llut. Court appeal-But DIS V BICI R. ordered trial court to tary una 4J 39 (c) An Appellate court bile dismiss S 115-Interợ cc-xit of ILS an appel and confirming the Lower instalments-Juical Act Court's decree cannot direct the Loner ·83 AJMER LAW DIGEST 84 CIVIL PROCEDURE CODE (1908) S 115 CIVIL PROCEDURE CODE (1908), S 115 Court to make a fresh decree on a new Is interlocutory the applicant must in basis of criculation Its so acting would addition to showing that it otherwise falls amount to 1 material illegality and irregu within the scope of S 115 show that it har exercise of Jurisd ction (Murphyc) causes irreparable injury (Norman JC) FIY SOORAT RAM POONAN CHAND V KINTOO LAI V DAULAT RAM Fir v JUUNTI LAL KALIAN MAL 1936) 4 1925 $ 2 S 115 and S 105 --Interlocutory -S 115(c)- Interference Mortgagee order-Revision does not ordinarily lic claw ung t) rough mortg 78 or land from when appeal lies from decree except thurd pirts — llortgagor not impleaded hen defeat of lau and a grałe urong Sunt decrccd-Ton jouder of mortgagor are manifest and arc irremediable by is material irregularity regular procedure Plaintiffs cln med certain land as mort Although instances exist where High garee froF and as) ed for declaration of Courts have interfered in Revis on wlen ttle and for possession The main ques relief poss bly could have been obtained at tron arose whether land in dispute was a later stage by appeal the general prin included in the mortgage by T. Suit was ciple is that there an appeal is provided decided without impleading F is a party the court will not interfere by any peremp Held, It was material irregularity tory order with the ordinary course of and revys on lny (Viscount Hallanc adjudication save in cases wherein a Lord D srl 1 and C J Anglin) Dewan defeat of law and a grave wrong are BAHADUR SITI UVCDVAL V CHANDVAL ma nfest and are irremed able by regular procedure 7 B 311 1 AN LJ 1 1 1J 33-A IR 1926 P C 142 -531 A 271 =25 AL J 61 AYL J 29 3 A L} 53 and 5 A = 25 ML W 90=3 O W N 989 VL J 97 Foll (IVcston ) C) MAULA 31921 M M N 84-99 IC 749 BUv SODIAG MAL 1934 105 – 29 B LR 755 -55 C L J 274 -IL R 51 C 338-31 CW N 413 (V1110 nder 115- Amendment -28 P LR 113--52 M L ] 368 I ars! Custre otler Kenedy) -8P LT 251 -S 115- Interlocutory orders Interlocutory order Persible if grass hardshup and in S 115 Interlocutory oriler-Inter justice feruice-Only live in addition to other requirements the order Cluses (1) a revision would he against 70 Iriepuralle injury interlocutory order of it entails grave I r Iship or 1.justice (Tormont j c) I very order which would if incorrect Gonat CITAV1) Tuis VAYAGTI, c1 se irreprtable jury 18 not open to VETRE KALA ESTATL Tesision If an order sought to be res ised 5) 97 1 ·85 AJMER LAW DIGEST, 86 CIVIL PROCEDURE CODE (1908). $ 115. CIVIL PROCEDURE CODE (1908), S 115 S.115—Interlocutory order-Reis Limitation for filing Revision ed to prezent grare hardship and in S 115-Loutation for filing Revi Justice SIOMI Application - Ratinced to thrcc (c) Even an interlocutory order can months be revised in a proper case when it is 1934 J 4 (NS) necessary to present grave hardship or [ $ 115-Ordinary Limitation is injustice (Broomfield J. C) KHADIMS OF six months Durgau KHWAJA SALIB v. DCH AN ALEY RASUL KUAT. (a) No application for Revision made 3 J 53. more than after 6 months from the date S 115--No Retision against interof order complained of, will be considered locutory order unless good grounds for the lack of reasonable diligence in the matter are (6) No revision lies against interlocu shown by the application (Murphy JC) tory order, 63 1. C. 15 Foll. (Barlee / c) SANWAI RAM v NANCY MAN MIST NANHI BIBI V. MAUVAD ALI 71925 S 61 1926 S 25 --S 115-No specific Limitation- Jurisdiction. Yet no ret ISION will be entertaincul heic induc delay S 115-Jurisdictioll-Wrong decision of Court that it has or has not jurisdic (a) Though the High Court's Jurisdic t101--Revisable if not dependant oil facts tion under S. 115 CPC is not subject to any specific i mitation yet the High Court (2) A wrong finding on the question will refuse to entertaia auch applications whether a court has or has not jurisdiction where there has been unreasonable and is open to revision But when the unaccounted for delay (Murpliy C) question depends on facts, and not on 12 FIKY Sooj AT RAM POO\AV CIIND It is pot revisable, 1 Pat LJ. 340 und FINN JHUNTA LAL KALI IN MAL. 554 Foll, 15 All 125 Diss 11925 S 2] (Novin J.C) Gori NATH v BHANUAR LM No loterference 5 J. 89. 5 115-No interferenc-- 11 hen Liberal Interpretation application under S 192 CP ( its 737S SLI --S. 115-Liberal Interpretation Application under S 152 of CPC A Liberal interpretation should be dismissed Hald, No revision 1. (Vorput upon Section 115 (Vornan J.) man ). C. ABDLL RAHMAN DIDAT hi TOO LAL V. DALLAT RAV Вих 1936 J 4 1936 | 117.

·87 AJMER LAIV DIGEST. 88 CIVIL PROCEDURE CODE (1908) S 115 CIVIL PROCEDURE CODE (1908) S 115 -S 115 - No interference--IV lica. (6) The HC will not ordinarily Judge refused to extend time substitute its on n appreciation of evidence or facis or its On judgment thereop in (3) Even if the lower courts order any matter committed by the Legislature refusing extension of time is wrong in for the final determination of an inferior law no application for revision lies court (Alurphy J.C) SHAMLAT Com (Normanj C) BB&C I RI V TAC VITTEE or PusuI AR Y PERSHOTAM Liwari) MILLS CO LTD BEATAR 1925 S. 9 5 J 83 S 115 and 0 14, R 5-No inter - 115—No Interference When firenceDuty of Judge to frame correct finding of fact based on cridence though issues--Error is irregularity High Court does not astrec fith conclusion (a) It is the duty of 1 Judge to frame correct issues and if he does not do so A conclusion of fact irriled at on a his error amounts to in irregularity of deliberate weighing and appreciation of procedure but no revision lies as it is an evidence on record cunnot be interfered interlocutory order (Barles ). C) Mst. with in revision merely because the High NANHI BILI V, MAUVAD ALI Court doesnot ngree with such conclusion 1926 S 25 (Jolly J C) MANGI LAL y Goral JI -S 115-No interference-Construc *4 ) 2 tion of Ducument -Is question of lara- S 115-No interference to final | But no revision decre-et sale after 11011ce to Judg mnunt debtor-Sale not cccssarils zord (a) The construction of a document is 1 question of Inw but does not involve a Sic CPC-021, R 90'. question of jurisdiction and no revision lies 115-10 interference- When (Baker I c) SOI OVAV. BALU 1926 S 11 question of late or mied fact or lit -S 1:5—-lo interference-Il'hien (2) Questions of lan or mixed fact rod refus il 10 grant ad interim injunction lax, whether rightly or wrongly decided are not questions involving the jurisdc When 1 Court refuses to mahe an tion of the Court its evercise or 1 reſus 21 order under 0 39, R1 CPC it is not to etercice it, or an irregular or illegal z rol of jur cdict on but an exercise of exercise of it and are hence not reliable It ind is rot reusable (Murphy J C) (flurphis Jou Siru Ait Dui SIIAVI IT CONVITTI I OI PUSHKAR V. Cal hjTAHAJA SA!113 191107 AV 1927 S 15 1925 S, 9 -S 115-Vo interference In mat ws 115-Vomerference--11 hen lers committed by legislature for final odiocate General refusing to consent Ketermination of inferior courts to filing minder S 92 CPC ·89 AJMER LAW DIGEST. 90 CIVIL PROCEDURE CODE (1908), S 115 CIVIL PROCEDURE CODE (1908), s 115 An order by the Advocate-General I he high Court will not ordinarily refusing to give his consent to the filing interfere in revision when applicant has a of a suit under S 92 CPC is not revis remedy by way of appeal (Vurply JC) able as it is not a 'case decided' by any RAJA DIDARBUS V PIR NOLADUY. court within the meaning of S 115 CPC 1) 1 (imply J C) SOHAN LAL v SADA -S 115-Other remedy-Reference SUKII under Regulation 1 of 1877 does not 1925 S 13 bar ret 151012 Other Remedy --S 115-Other rcmedy -Rclision lies uhen Sccond appeal or reference is competent 110 No reference would lie in the present case and a right of reference in certain circumstances would not oust the revi sional jurisdiction of the Court when those circumstances do pot exist (IVes ton ). C) ABDUL AZIZ AMII ALI 1935 J 102 Provisions of the Regulation allowing a reference to the High Court at Allaha bad do not oust the revisiobal jurisdiction of the Judicial Commissioner (Jolly 1C) MOOL CHANDI Su hISIEN *5 ) 3 (1) -S. 115--Other remedy --Reference open-Still Revision lies I'ven if 7 reference was or is open to a party under S 17 of the old Courts Regulation, the High Court has power to interfere in revision in a proper case. (Jolly JC) S KALIAV MAL v MST DHANTAIA DE *3 J 3. -S 115- Another remeds-Open- Wo Retision Scope The extraordinary powers under S 115 CPC will not be exercised if there is S 115—Scope Not cconomical another remedy open to the applicant substitute for appeal (Bakur J.CISIOVI v. BALU. 1926 S ii (c) The remedy under section 115 CPC is not intended to be an economical -S, 115--nother remedy - Open- subst tue for 20 appear (Broon field JC) Vo retision NADIVS or DL1GAH HAJA SANTE Y DIU I ALEI RASUL KH. A High court will not interfere iu 3 ) 53 revision where there is another remedy -S 115-Scope-Court refusing to open to the applicant (Baler J C) Retkits judmint MOTI LIL v Mitsui BHUS11 hasil LIVITTI) ALICILI Revis on does not lie against an order 1 ) 29 of 1 cout refusing to revien it own jodg mnent 26 d. 572 Foll (Hurpliy JC -S 115-Other Remedy-By try MANGA Y BADRI PEI HAD of vippeal open-No Revision ·91 AJMER LAW DIGEST 92 CIVIL PROCEDURE CODE (1908) S 115 CIVIL PROCEDURE CODE (1908) S 145 S. 115 & 0 41, R 11-Scope - revived. 59 Cal. 1 150 Foll (Norman Parlics 1101 heard 111 Revision-No 1 C) JAWAHAR SINGII v, JAWALA Per ground for Relicte SHAD 1936) 195 An omission to hear the parties in ? revision application is not a good ground -S 145--If section 135 of the Con for a review Turphy J C) Firu tract Act not applicable to a bond gron ACIAL DAS BAL CHIAVI V FIRM LUN to Court the countable principles on DA VAI UADI MAL thich the section is based apply 1J 6 If Section 135 of the Contract Act S 141 and 0 39, R 1 and R 2-No does not apply to 1 bond given to the appeal against orier refusing to 18SHC Court the equitable principles on which ad interim 110n1ction that section is founded do apply, and a dis Application under Section 12 of the charge cın be given to the surety 1930 Guardian and Wards Ict to restra n Bom, 122, 1930 Lal 896 and 56 mla! (25 marriage on the ground that the bride Foll (Norman ] C) NATII MAI 1. groom was under 18 years of nge Court ABDUL HAMID rejected the application Held, No appeal 1936 J 1 lies (Vorman C) MR MAIS YDRA LAL V MANGI LAL S 145-Acceptance by lorer court 1936 J 182 of surety bond besond time 15 Tithont -S 145-Court materially alterung jurisdiction-But surety is liable the terms-Surthy is discharged Where the execut on of 1 decree his been stayed by the Appellate Court on the If the Court by its action materially affects the terms of the surety bond judgment debtor s furbishıog security for the decrctal mount within 7 specifie 1 without the ascent of the surets, the latter period the executing court acts without Is discharged 1935 Nagpur 258 Approved jurisdiction if it accepts the security (Vorman JC) NATII VAL V ANDUL beyond the time so specified But this HAVID does not affect the lability of the surety 1936 | 1 to the decrec holder under the bond huch S 145-xucution application dis has been accepted and on which exccution missell for default but subsequenth of the decree has been stayed even though rostorud - Sunds l ond retites the erecuting court had no autl ority to Accept it (Hackl JC) RS MATTIU & stood surely for the appearat ce of SIMCILADAY. judicinent debtor I recution application 5 J 60 J:stis el fet delzult in ab cnce of decice --S 145— lusolt cncs of principal deb holder Well the effect of restorntion » 75 for--Docs hol absolte surety to restore the position «hich existed hen de caecution appl cztion 1 75 dı missed for Thir insolsercy of a principal debt dellult and the surct bord therefore does pol absolse his surety froni liability ·93 AJMER LAW DIGEST. 94 CIVIL PROCEDURE CODE (1908) S 148 CIVIL PROCEDURE CODE (1903) S 149 to pay the decretal amount 28 A 387 An office note to which the judge Diss (Hackla JC) RS NATHU SINGH merely appends his joitials is not a judi VADAV cial order because the Judge does not 5) 69 exercise his discretion at all (Norman JC) BB&C I R: v THE EDUARD -S 148— Ver Registration is slot MILLS CO LTD BEAWAR condonation of delay--Condonation is a 5 J 83 yulical act S 149-P 13 ment of deficient court Registration of in execution application focs does not anjount to condonation of delay Condonation of delay is 1 jud cal act and Payment of deficient court fees within therefore to be performed after hearing 7 period allon ed by the court has the arme both sides Registration of the darllast effect as if the ſee had been paid in the could only mean that condonation was first instance (Il cston j C) MOHAN allowed subject to objections When VCD HANIT v SIED HABIB HUSAIN objection by the judgment debtor is made 1934 J 111 the trial court should consider jud cially -S 149-Appcal insufficiently stamp whether there are sufficient grounds for condoning the delay (Norman JC) ed-It ought to be heard up to the talue of the Court Fce pati RAM DUTT V CHATUR BHUJ 1936 J 110 An appellant whose prayer for time -S 145-Conditional decrec becom to make up deficient Court fees has been Tejected ought to be heard up to the ing final-Trul court cannot catend value of the Court fee paid in time tunc-litici is proper riedy 10 IC 207 1926 Lal > E 1931 I al When 1 conditional decree becomes 207 Foll 26 IC 746 Dist (Vorsian final on the failure of the judgment debtor JC) ND HISVAT ULLAH BASTI to comply with its terms it is incapable B113 of beint varied by the orig nal court except 6 J 27 by means of n review JJ All 12 Rel -S 149 and 0 7 R 8 Sutcral neufs 5 145 of the CPC has no application but not suparatı y talii l-app llate after a decree las been passed (Murphy Coiluill not luar Sio motu JU) Mşi \1THI V JIGI LP 1927 S 22 Where the rel efs are everal and are S 149– Ipplible to juduloriler not seperately valued it is not poss ble for ourt of Iprell so he it the appeal up to in huh jalat elerisul hus desertion the value of the Court fee rad within id not to the note trolled by Jiminton bi juda suo motu without an applica tron to amend the memorandum of appeal. (2) Section 14) meins that the court i Lil 7 Doubted (lorian C) inust copsider ether time ought or VD HIVAT ULLANIY BASTI BIDI ought not to be granted 61 27 7 ·99 AJMER LAW DIGEST, 100 CIVIL PROCEDURE CODE (1908), S 151. CIVIL PROCEDURE CODE (1908), S 151 Held, that the order of dismissal for (a) Even if there is no sufficient default cannot be construed as one reject causes' for default the Courts have inherent ing the plaint. In the present case the powers under S 151 C. P. C. to restore a order should be considered as an order suit dismissed for default in proper circum under S. 151 CPC and that suit could stinces (19u phyC.) LACJIVI NARAYAN be restored under the same section. v. RADHA RAVAV 1926 A.A.L.J. Supp 41 Dist. (Vormant 71927 S 20.] j. C) PAHARA v. RAM BILAS. (III) Execution. 5 J 103 S. 151--Restorahon-Execution S 151-Restoration -Sunt dismiss ed for default (or decreed ea parte) -- Las inherent poreer to restore st application dismissed for defaultCourt No sufficient cause sloun to restore at (or set it aside)-S 151 has no applica A court has inherent power to restore t10n. an execution application dismissed for default. (Norman J. C.) JAWAHAR SINGH (b) Where no sufficient cause is shown v JAIALA PERSIAD, a court has no inherent power to restore 1936 ). 195 a suit dismissed for default under S 151 Review, C.P.C. Similarly a court has no inherent jurisdiction to set aside an ex-parte decree S 151 and 0.47, R. 1-Review New otherwise than as provided by O 9, R. 13, authority--No ground for Review 48 A 175, 43 MI 94,1 P. 277, 48 C. L J. 596 Foll. 34 A 426, 26 M 599, 44 B, (c) An order which cannot be reviewed 82,45 B. 618 and 4 R 28 Diss (Jolly on the ground of wrong exposition of las J.C) GORDHAN DAS V. B B&C I Rx cannot also be reviewed under S. 151 4 J 39. СР. с A Court cannot alter its order S 151 and 0 9. R. 9--Restoration changes its mind (Baker ) C.) FIRM under S 151 because it subsequently No restoration tinder S 191 if no suffi LAL CHA\D BADRI NARAIV V. FIRU cicit canse HIRA LIL JAG INATU. (a) A suit dismissed for default cappot be restored under S. 151 f do sufficient cause is shown under O IR 9, 1927 Cal S. 151 and 152–Order drawn up and 158, 1927 Pat. 369, 1925 All. 610 dod sigued - Illen amended 1927 Lah 622 Foll 531 C 252, 58 I C. la) A court can amend its order after 748, 1927 Run 58 and 1927 A. AI, L. ). Supplt. 20 Diss (Shannost J. C) MOTI It has been drzwn up apd signed only la two cases LALI HINDU 3). 69. (1) IVhen the decree or order does 15151-Smt dismissed for Defaultcourt actually decided or intend- No "sufficient calese"-Still court may ed. This is done under ts 10" restorc it: herent power. 1926 S. 19 not correctly state what the ·101 AJMER LAW DIGEST. 102 CIVIL PROCEDURE CODE (1903), S 152 CIVIL PROCEDURE CODE (1908), 1, R 10 (2) When there has been a clericii ---0.1, R. 10- "Fırm"—To describe or arithmetical mistile or an Hindu joint family business-The word error arising from an accidental 15 a mis description - Amedment allou cd slip or omission This is done under S 132 CPC (Baker The use of the word "Firm" in the JC) FIRY LIL CHAD BADRI plaint to describe a Hindu Joint family NARIAI TIRU HILAL business is a case of mis description. JAGAN \ITH Opporlunity to amend may be given. 1926 S 19 (Vorman JC) FIRU HAZARI MAL GULAB CHAD FIRV DOLAT RAM KUNDAY -S 152-Scope VAL, 1936 J. 130 When a decree does not specifically and correctly state what the court actually 0 1 R, 10—Sot u rongly filed in decided and intended the proper course name of Torm-Ancudment after limnta for the decree holder will be to apply to tion-robar to suit the court granting decree under S 152 Where a min guies his business a CPC (17111p113 y C) LAL CHAD name which suggests several partners it V. Gusu LAL dces not turn that business into a firm. 3 J 38 The name is merely an alias for the --OIR 8-Formal order material proprietor of the business. If in such a case a suit is filed under that alias and is When necessary notice is issued on in sobsequently amended after luntation by application under O IR 8 it is immate substituting the plaintiff's proper name rul whether any formal order indicating the case is one of mis description and not permics101) under the rule has or has not substitution of parties and the suit does been recorded The suit is to be deemed a not become time barred (Norman J. C.) representative suit (Jolly J) BIGICUT BP BHARGAVA V GHISU LAL. DALLAL IX v IIITA DAS 5 J 111. *3} 8 01, R 10-le addition of party 0. 1, R 8-Orier male 11! Irtal 1 here cagic assertions of being interese court-form not to be run tct in higher ſted in the property courts The applicant made vague assertions When once 10 order ins been made that she was interested in the property. under 01 RS and the representative She gave no indication as to the amount parties have been determined by the trial of her interest, how it was derived or court, it is not necessary to go through whether she was in possession, Held, the same form in ench successive court, 31 Court w 1$ pot boudd on such allegations I C. 137 Foll (Hurphy JC)P SAHATI I to make her ? party. (Weston J. C) PCKSHAD . P VAIB PLISHAD his AR Y DuooL CHAD 2 J 55 1935 J. 66.

·103 AJMER LAW DIGEST. 104 CIVIL PROCEDURE CODE (1908), 01, R 10 CIVIL PROCEDURE CODE (1908), 0.3, R 4 O 1, R 10-Sulit by one point pio -0, 3, R. 4 (1)– A person authorised 111see-Addition of the others after under power of attorncy to appoint a limitation-Entire surt time berred Pleader can do so thongh lie may not be recognised agent (2 lf a suit is brought by only one of the joint promisees and the others are A person duly authorised by or under a joined after the limitation the result is power of attorney to appoint a pleader that the suit is barred by lime in its can do so though he may not be recognised entirety OC 819 Foll (Vaclın c) agent within the meaning of O 3, R. 2 DHAN RAJ V KALU. of the Coul Procedure Code as applicable 5 ). 51 to Aymer Merwara (Norman 1. C) KHAIRAT MOITAMVAD V. HIRA CHAND -0. 1, R. 13-Plaint 1201 signed by 1936 ) 138 one of several plaintiffs-Ao repudiation -0.3, R.4-Appointment of Pleader by non signing plaintiff-Defendant did Not restricted to partres or their authorisd not assert at proper time that 11011 agents signing plaintiff hat 110t consented- Absence of signalure immaterial O 3, R 4 does not restrict the pou er of appointment of pleaders to partres or Failure to sign the plaint by one their authorised agents. (Weston J. C) co plaintiff is immaterial The inclusion GMISU LAL Y SHRI KISHEN of the non singing plaintiffs in the plaint 1935 J 57 was an assertion that they concented, which in the absence of any denial by -O3.R. 4(2)-Pleader appointment by the other side should be accepted 17 C. a gurdian ad litent of a minor--Appoint 580 Ref (Norman J C) RAJDAR KHAN ment does not ccase on minor's attaining KAYA LAL majority 1936 ), 141, A plender duly appointed on behalf of --02, R 1&R 4 Plaintiff entitled to ? minor does not become functus officio claim possessI0n - Can she at luis ecril on the minor's att uning majority. Under for 1 esne profits only-Court cannot O 3, R 4 (2) CPC an appointment once refuse a decrce for thesne profits duly made continues in force until deter" mined with leave of the court by a writing Even if a plaintiff be entitled to claim signed by the client or pleader dies or possecsion he can sue oply for damages at until the proceedings in the suit are his peril and the court cannot refuse ? ended as regards the client (Jolly J.C) decree for mesne profits of found due BABU LA v G. ATHUS (Barles J C) LADU V BALA PERSHAD 2 ) 23 -O 3, R 4--Vakalatnama and memo 0 3. R 2- Local amendment rand 14 of appearance ne, Notification by J.C Sec, Notification by JC 1931 J 2 (NS) 1934 J. 1 (NS) 451 ·105 AJMER LAW DIGEST. 106 CIVIL PROCEDUREC ODE (1908), 0 5. R 17. | CIVIL PROCEDURE CODE (1908), 0 6, R.17. -0.5, 17-Parts should not request -0.6, R. 17—l'hien certain members Process sertistit rotires addressed of a joint Huid'e family suic, amendment to them to the coursel Hay be allou ed to make it clear that they she on behalf of the joint family Sec Notinction by JC 1935 ) 6 (NS) Certain members of a joint Hiodu -O 5, R. 17 and R 19-Party retusung family sued in the r pames without any to accept seruire-Serting officer acting suggestion in the plaint that they were tunder R 17-Court bound to craminte hunt doing so on behalf of the joint firm. An on oath unless report verified by affidavit application was subsequently put ja to amend the plant stating that plaintiff When a party refuses to tal e notice formed a joined family with other members and the serving officer acts under o 1, and seeking to add to the heading of the R17 the court is bound to examine him pluint the words ".is members and on ou oath unless he has verified his report behalf of the joint Hindu family". by 20 affidavid (Norman J.C.) JAWAHIR SINGH V. JAWALA PERSIAD. Held, the amerdment souglit, being 1936 ) 195. bona fide, is not more thau a matter of -O 6, R 17. form and be allowed. 33 A. 272, 35 A. 519, 34 B. 178 and 12 L 428 Fol. Also see, C.PC-O1, R. 10. (ll'eston J. C.) MOHAN LAL 1. TIRU RADHALAL PIRBHULAL. Amendment Allowed. 1935 ) 11 Amendment Refured C#se decided 06 R. 17--Surt to roug's filed in Name of PirmAmendment after luta- 101-No ba to su: Principles Soit not maintainable, Where a man Amendment Allowed. fuses his business a rame which suggests sesoral partners it 06, R 17-alunndment of the does not turn that business into a firm plot ray be allowed to malc it clear The name is merely an alias for the thul pluratiff was smagas Kirta proprietor of the business. If such a case a suit is filed uider that alias and When there is notlung in the plant to 15 subsequently amerded alter limitation suggest that a plaintiff was deliberatels by cubstituting the plaintiff's proper came trying to conceal any facts from the court the cise 15 ore or ms descriçtion acd pot he may be allowed to amend the plaint so substitution of parties ard the suit does as to describe lunsell as Karta of the not become time barred 35 C. H' N. joint family. (Worman J. C) PHOOL 132,30 BL.A. 117 List (Sorian J.C.) CHAND V. JAGAY YATI. B, P. Bil ARGATAYGusu LAL. 1936 J. 16. 53.

·107 AJMER LAW DIGEST. 108 CIVIL PROCEDURE CODE (1908 06 R 17. CIVIL PROCEDURE CODE (1908) 0 6 R 17 - 6 R 17--Amendment due to --06 R 17--Sut on allegation of unsatisfactory uording in Pest Form tentancy farlıng-Plaintiff not allowed H-Vo rights accrued to defendant to sicced on tritie by lumutation-Amendment alloued to Plaintiff's case was that defendant was enable plaintiff to base his claim pon her tegant on an agreed rent Defendunt only ground on uhich he can succeed denied printiff title asserted his own and denied any relationship of landlord Puntiff originally alleged negl gence uud tenint and m sconduct of Ru way administration On evidence it was held that plaintiff's Held the Railway Company should tulle was proved and that there w15 no not obtain adventage from unsat sfactory defipite evidence of defendant s tepancy wording in the Risk Form and unless the zmend nent would defeat a right which Held in the suit as framed the ques has accrued by limitation a plaintiff 11on of title to the property could not be slonld be allowed to amend his plaint to gone into and the plaintiff having failed buse his claim upon what has be-n held on the plea of tenancy could not be allowed to be the only ground upon which he can i decree for ejectment on the bass of succeed (Weston J C) GANESHII AL title Civil Second Appeal No 45 of MAMMALAL V BB & CI Ry Co 1929, 57 C 394, 1925 All 705 and 1926 1935 J 38 Sind 98 Foll 25 A 256 Not applicable (Weston J C) UVRAO V MAHDCVI Amendment Refused 1935 J 4 -D 6 R 17-Different cause of 6 R 17- Amendment 1100 actron-Sut for ejectment- Amendment allot ed to ware default clause cannot be allou ed to concrt it into suit for possession When a plaintiff his once relted on the default clause he cannot afterwards be Suit for ejectment Defendant claimed allowed to amend his plaint so as to waite that he was owner Defendant died His it (Norman ; C) ABDUL GHANIS legal representatives claimed that they ARBER KHAN were in possession in their own right 6 J 41 Plaintiff then applied to amend the plaint to sue in the alternative for possession on -06 P 17-Smt for recorery of the bass of title mortelent-An endment to show that money 1 as really carnest monej - lot Hall the proposed amendmect will alloued introduce a different cause of action The refusal to amend will not deprive the A plaint land is one for recovery of platoul of any right (11 eston JCI money lent cannot be allowed to be CHAND MAL Y, MONOMYAD HUSSAIN amended to show that the money was not 1935 ) ICO a loan but was earnest money paid on a ·109 AJMER LAV DIGEST. 110 CIVIL PROCEDURE CODE (1908), 0 6, R 17 contract of sale which the other side had failed to perform (Vorman JC) PFERU v. Sri GOVIND *5 ] 2 (III) CIVIL PROCEDURE CODE (1908), 06, R 17. -06 R 17—When amendment to be alloned Case decided 0.6, P. 17 and S 115-an order refusing amendment is a 'case decided Whether the court should or should not grant leave to amend the plaint depends upon the stage at which the amendmend is asked for and whether the original error in the pleadings is due to mistake or inadvertence (Vormi J. C) G GOULD V. JATAV LIL. 5 J. 100. A refusal to allow an amendment is a case decided within the neaing of S 115, 1935 dll 393 Foll. (Weston JC.) CHAND MAL MOHOUVAD HUSSAI). 1935 ) 100. -06, R17—Amendment hon allou ed (6) Leave to amend will as a rule be Principles granted to enable the real question in -06 R 17-Rules and principles issue between the parties to be raised on the pleadings and where no injury can be for grant of leare caused to the opposite party except such (2) (a) The rule is that amendments 10 as can be sufficiently compensated in costs. 1925 Oudh 291 and 1925 Mad. 585 pleadings ought ordinarily to be allowed Not Foll. (allurphy J. C.) Gopi Kiste (3) Leave to amend should be refused v. RAU PAL here 1925 S 21. (.) the application is not made in good faith, or -0. 6, R 17-Amendment-when refused (1) the amendment would introduce 7 totally inco asistent case, or (111) the effect would be to take away from the opposite party a legal right which has accrued to him by lapse of time. (b) Amendment will be refused when It is not sought is good faith, or when the amendment is not essential, or would occassion irreparable loss to the other side, or when it introduces a totally pex, different and inconsistent case and is made at a late stage, 1927 Oudh 291 aud 1925 Had 985 Not Foll (Murphy J. C.) Gor hishe\ v. R41 PAL 1925 S. 21. (1) A change the cause of action is not necessarilyn bar to an amendment of a plaint \Vhat is a bar is the substitution of an inconsistent cruce action inconsis tency meaning two facts which cannot erist together. (Hacklin J. C.) IAN BIAL I, GOG RAJ. 5 J. 1 Suit not maintainable -O 6, R. 17-Court held suit not mamtamable-No amendment ·111 AJMER LAW DIGEST 112 CIVIL PROCEDURE CODE (1908) O 6 R17 CIVIL PROCEDURE CODE (1908) O 7 R7 When once a finding, that the suit is 07, R, 1-Defendants particular not maintainable has been recorded and status tot pleaded which would mak remained unchalleni, ed it cannot be set 1111n liablc-But Court bound to take aside and consequently no leave to amend judicial notice of that status-Defen lant the plunt can be further granted (Wurplıy liable JC)5 PANA LALI S KALIAN 1141 (6) To allow defendints to escape a DADIIA 2) 75 1 ability by ommission to plead a status which is theirs, by refus ng to take O 6 R 17-Sit not s star cable judicial notice of a provis on of the statu Allow plintiff to withdraw-Amendment tory law would be an abuse of the powers cannot b illower of the csart and a defeating of the end of justice within the meaning or S 151 CPC (6) When a suit is unsustainable as (MurphyC) MOTA Y RAM KISHE brought the proper order to pass is to 1925 S 49 allow the plaintiff to withdraw the suit with leite to bring a fresh suit and on -07, R 1 and S 20-Cause of a tio : failure to dismiss the suit The plaint neither pleaded nor proved-Court lias cappot be ordered to be amended and 110 jurisdiction proceeded with in the same suit 9 A 191 PC Foll (Baker J C) S SOBHAG Plaint gives no indication as to how MAL LODIIA V ASTUR CHAND the cause of action arose within the court s 1926 S 41 jurisdiction No mention as to where the price was payable No evidence led upon ---07, R 1-Court shoul: sec sub the point Held, as plaintiff has not stance ind not fort of plar it attempted to show that money was pay It is the substance rather than the foron able within the courts jurisdiction and of the su t shich should le considered not to his agent or canvasser who made 5 1 1 L 1 61 Foll (Weston J C) the contract at Umreth in the Bombay ABDUL GHFAR V MOHAMED SHAFI Presidency, the court had no jurisdiction 1935 | 107 (IV cston J C) B P BHARGAVA V CM SHAH & CO -07, R 1Comt shoull sec sub 1934 ) 103 stance and not forut of clief O 7, R 7-Ilmor relief van be grant (1) A delect in the form of relief cd here major rolif claimed claimed is immuterial iſ the rel ef required has been substantially claimed in the plaint Where a major relief is claimed \Vhat the court bas to consider in qu stions minor relief cao, u proled, be granted of maintainability is the substance rather A plaintiff suing OD sole ownership cih than the form of the guit 1931 lat 9+ succeed on proof of joint ownersbıp 27 A 325 Rel (Hacklunj C) CHATUR (NormanC) BCVI GOPAL V LANATIA Buus v RAV NISIE DAS LAL, S 5) 61 *6 3 4 2 ·113 AJNER LAV DIGEST, 114 onn CIVIL PROCEDURE CODE (1908), 0 7, R 7 CIVIL PROCEDURE CODE (1908, 08, R 6. -O 7, R 7-Scofu-laintiff liemed 07 R 10_Court returning a plant the wall as her ou11-Comt cail gran for presentation to proper court--It carr. dccrcc thut u all is a party i all not cxtend the origual period of limita. tion The general rule is that 2 Court should give wbit relief it can A court returned the plaint for presen tation to the proper court within a fort The plaintiff claimed the wall as her night Plaintiff then represented the Hild, that the court can grant a plaint in the proper court. By that date decree to the effect that the wall is joint the suit had become time barred of the parties, 1930 P.C 38 Foll. (Vorman JC) TEMPLE OF Sri Rav CHA DI AJI Held, the order of the first court allow V NATHI. ing a fortnight for representation was 1936 J 134 illegal and could not extend limitation. (Norman JC) HEERA LAL V KALU. -0.7, R 7 and S 100-High Court 1936 J 67 can grant proper relief tell though not claimed 11 lower courts if facıs stated in --O 7, R. 11 (c)-Appeal not properly plaint stamped-Court may order party to alc op deficiency within limitation - If appeal In view of 0 7 R 7 CPC there hled on last day of limitation correct is nothing to prevent the High Court in Second Appeal from granting the proper procedure laid dou ! relief to a plaintiff even though it was not (4) When the appeal is not properly claimed by him in the lower courts where stamped the court may order the party to the facts on which such a relief can be make up the deficiency within the period granted are sufficiently stated in the plaint of limitation. But if the appeal is filed 27 N. L. R 327 and 27 a 321 Rel on the last day of limitation with deficient (Macklot J. C.) NARSINGH Das y court fees the correct course is to call NARAIN Das, upon the appellant to show why the appeal 5 J. 73 should not be rejected and if an applica tion is then made under S 149 Civil 0.7, R. 8 and S 149-Sercial reliefs Procedure Code or Section 5 of the Limibut not separatıly taluel-Appellate tation Act notice of it should be given to Court till not lcar Suo motor the opposite party and the point should be decided before the appeal is set dose for Where the reliefs are several and are hearing on its merils. (Vorman ). c) not seperately valued it is not possible for B.B. CCI.R. THE EDWARD MILLS Court of Appeal to hear the appeal up to Co, LTD, BEAWAK the value of the Court fee pud within 5) 83. limitation, suo motu, without an application to amend the memorandum of appeal, -0, 8, R, 6-In smut accounts 1931 Lah. Doubted (Vormian) C.D.fondant cattled to Amount found due MU HISVAT ULLARI BASTI Bipt to him against Plaint without claim 6 J 27,1 mg it as a set ou.

·115 AJMER LAW DIGEST. 116 CIVIL PROCEDURE CODE (1908), 08, R6 CIVIL PROCEDURE CODE (1908),0 9, R 9. If Plaintiff sues for accounts, he im cbligatory, that the plaintiff should file a pliedly undertakes to pay to the defendant counter written statement. (Norman J.C) any thing that may be found due on BALU RAY V. MAGAN LAL. accounts being taken and defendant need *1936 J. 217. not specifically pray for a decree. Deft's claim not being a set off no question of 0.9, R 6 (1) (a)-No ex-parte Pro Court Fees or Limitation arises 32 A. ceedings-Unless proof of legal service 525, 14 C. 147, 54 MI 654, Foll 46 A, Lxparte orders should not be made (Norman J. C.) THIKANA except on proof of legal service. (Alurphy KuctRI V. Rati RAM GHS: RAN & Co. J. C) Jai Kishen v. GIISA LAL. *1934 J. 99. 1. J 14 --0.8, R 6-Equitable set off — Jean- 0.9, R. 7-"Good Causch includes 1101-service of suc71monts : 858 Rel ing of "Good Cause" in Order 9, Rule 7 will include non-service of summons. (Normant J. C.) BIRDHI CHAND V. NORAT MAL. 1936 ). 18. When the different demands arise out of the same transaction or are so connect ed in their nature and circumstances that they can be looked upon as part of one transaction there arises what is called an equitable set off and on this Court fees are not payable. (Norman J.C) APAJI v. Noor MOHAMAD 1936) 10 -0.9, R. 9-Application for restoration on same day--Restoration should be allowed. 08, R. 6-Legal set off - What Donants to : A legal set off unust be for money legally recoverable from plaintiff, that is to say for it must be mobey for which defendant could sue plaintiff. (Norman J. C.) SOLEVON D'RAZARIO JAVES D, ROZARIO 1936 J. 60. A plaintiff reaching the court finds that a part of his claim has been decreed to the extent of defendant's admission. He applies on the very day for restoration. Held, that restoration should be alloned. (Alurphy J. C) FIRM CHOTH MAL SUA LAL Y. SHEO NATH 3 J. 5 -0.9, R. 9- Restorc sut if plaintiff lale by a few 11111utes : -0.8, R. 9_Counter written state- Dent-IV miten statement putting for uard a counter claun-Desirable that plamtiti sitould filc a counter tritten statement : (6) Restoration of a suit dismissed for default should not be refused if the plaintiff nas late by a few minutes only in arriving on the date of hearing. 46 XI. 60, 1925 Bom. 421 and 1924 Bom. 392 Rel. (Shannon J. C.) MOTI LAL Y. Hindu. 3 J. 69. Whenever the written statement puts forward anything in the nature of a counter claim it is advisable, though not ·117 AJMER LAWY DIGEST 118 CIVIL PROCEDURE CODE (1908), 0 9 R 9 CIVIL PROCEDURE CODE (1908), o 14 R 1. -09, R 9-Srt restored on payment See District Judges Notification of costs-Costs 110t pod till next date- 2 J 59 (GS) Sunt dismissed as plaintiff dit not comply with condition prece tent - Plaintiff subse -0 13, R 3-Rejection of document not produce from proper custody quently applied for restoration-Applica tion is maintainable It is not 1 valid ground for rejecting When an order is made subject to a 2 document that it was not produced from condition precedent and the order lap es proper custody (Norman JC) HARI because that condition precedent is not D4S Y MU NICIPAL COMMITTEE AJVER fulfilled, it is open to a party to show that 1934 ) 61 the non fulfillment ua due to causes over which he had not control (Aoman jc) 13, R 4-Document proved but MONA LAL V GIRU IR LAL 110tn forsed Document to be considered *1936 J 212 Il here a document has been produced --09R 9-Court restorld suit con and proved by a party it is entitled to trary to 0 -R715101 lics derive its full benefit inspite of the fact See- CPC-S 115 that it has not been endorsed by the court as required by the provisions of Order 13, --09, R 9-Sunt dismissed for Rue 4 because it is a cardinal principle default-No sufficient cause shoun to of law that the action or inaction of the restore it-Vhether S 101 has any court shall not harm any man (Shannon application JC) RAV KISHEN » Kasuli Rav See CPC-S 151-Restoration *5 J 3 (1). -09 R 9-1x choi Ipplication -O 13 R 4-Documents not endors See CPCS 151- Restoration et but clied by trial court-Appellate 09 R 13-O, i setting asıle ex court may remand for compliance partc decrec-Cannot be challenget in Where the trial court has relied upon documents which have not been endorsed Seu CPC-S 105 as required by O 13, R4CPC the --09, R 13.-Cowt set asuu er pirts | Appellate Court should not rule out of cons deration such unendorsed documents decrec contrary to () )-Rutision lies but the proper course is to remand the See CPC-S 11) suit for coonpliarce with the provisions of that rule 5 L 227 and y L. 4 Rel -O 9, R13-1 rp irte decreu-lo (BroomficltJC) NASIR UDDIN NOOR sufficient cinse to s tit aside - 11 hether I MOHAMAD 5 151 has any aplication *5 5 (1) See, 'C PC-S 151--Restoration -20 13-Documents must be frolused -0, 14, R 1 (5)-Double and regati at first heanng-un lorsement issues deprecated aprel ·123 AJMER LAIV DIGEST. 124 CIVIL PROCEDURE CODE (1908) O 20 R11 CIVIL PROCEDURE CODE (1908) O 21 R 15 -020 R 11 -Trung of instal An oral agreement as an adjustment of ments-Judicial Ict--Relision lies a decree cannot operate as a bar to an execut on application. (Shannon ) C) (a) Discretion to fix instalments is a Noor MOHAVED Y SUKHA RAJ judicial d scret on ud filure to exercise *3J 2 it in a jud cal manner is a val d ground for interference in rev sion 7 L 39, and 021 R 2-Executor agreement- 11 C LJ 131 Foll (Jolly J C) FIRY No adjustment Brdu CHAD SIGAN CHAND MOTI LAL Executory agreemert cannot be pleaded 4J 76 in bar of execution 54 A 573 and 1931 Lal 608 Fcl 1935 Bon 303 Not Foll 020 R 11--V) local inactment 1935 A AIL J 97 Ref (Voiman ) c) permitting ristalments to agriculturists KALIAN MIL RAM PAL in Caccution proceedings 1936 J 157 Mo local et actment appears to exist -0, 21, R 2-Parties can substitute permitting instalments to be allowed in fresh contract for slecrce-It will an ount executiou proceedings when the judgment to adjustment debtor is an agr culturist (Weston J C) RAJI V CHITAR It is open to parties to a decree to subs *1935 J 42 titute a fresh contract for a decree and 0 20 R 18 and 0 26 R 14 (3) for the judgment debtor on Cuch "fresh contract having come into existence to Decree is preliminarz-It becomes final apply for the adjustment to be recorded after hearing puities Au agreemeut that at o pe future time on (0) A decree for partition under 0 20 delivery of property the decree would be R 18 is only a prel minary decree A final cousidered satisfied would be no adjust decree is passed after cons deration of the ment (IVeston J C) MALA JAWANA Commissioner s Report under o 26 R 14 71935 J 97. (Broomfill J C) ABDUL MAJID 0 21, R 2-Joint decree holders- VRBS BRIDH VAL Admission of satisfaction by one docs 3) 59 not bind others unless he recereed on 021, R. 2-Adjustment-Uncerti behalf of all AD admission of satisfaction by one opt cannot be Decree holder docs not bind the others ao xecuting Court the absence of evidence that he recenied AN LAL v PANNA it on behalf of others (Norman ) c) MOHAMMED AZIZ ULLANI, 1 ABDULLAH 1936 J 32 2 .2, R. 15-Joont decree holders-- apply for his share ·125 AJMER LAW DIGEST 126 CIVIL PROCEDURE CODE (1908) O 21 R 15 CIVIL PROCEDURE ( ODE (1908) 0 21 R 58 It is not open to one of several decree the redemption money to the plaint ff holders to apply for execution in respect 23 W 121 Foll (Jolly J C) SETH of his share of the decree It is rot open SOBHAG NAL V PRAV CHANDRA to the court to allon executiou for a share *4) 5 only (No manj C) MUHAMMED AZIZ -O 21 R 50 (2)—Scope of ULIAI AI DULLAH 1936 J 32 The word is I sputed must be taken to mean is not admitted (Mornianic) O 21 R 15-application for elecu SOBHA RAM SRI RAV v I RABHU LAL tion must state that it is filed on behalf 1934 J 54 of all—Omission is fatal О 21, R 50 (2) and (3) -Ea parte Ommission to state in the evecu non order passed by one Court cannot be application that it is filed on behalf of all questioned by another court joint decree holders is a fatal defect Sub Judge Moradabad passed a decree (Norman JC) MUHAVSED AZIZ ULLAH in favour of appellant ag nst a firm v ABDULI AH 1936 J 32 Subsequently he granted leave ex parte to execute the decree against respondents -O 21 R 16-Decree assigned-No on the ground that they were partners separate application for notice to assign Appellants sought to execute 26ainst or necessary Respondents at Ajmer Respondents denied at Ajmer that they were partners No separate application for notice to Hold the respondents could cotre open the assignor is necessary may be made in the execution appl cat on the guest on wh ch had been decided by the Moradabad Court (Norman JC) GULAB CHAVD V RAM NINAS Courts of concurrent jurisdiction can 1936 J 79 not question each others procedure When an order under o 21 R50 (2) is -0 21, R 19-Redemption decrec passed er pirte by one Court there is a Cxccution for de fund int costs--Lime presumpt on that it Was passed after tation-Commencement of legal enquiry 1929 390 Dist (horman) C) F SOBHA RAV Sri Ravi (a) In a redemption decree T here costs v Pr ABHU LAL of the suit have been awarded to the defend 1931 ) 54 ant, execution cannot be bad by him under 0 21, R 19 so long as a larger sum -O 21 R 58 13 prable by him under the decree to the Also Sus Transfer of Property Act plaint -S 53 (6) The defendint being entitled to a O 21, R 58 and R 63-Objallions set off only for costs limitation for execu dismisscd-Suit by ostcnsible on hertion of his derree for costs rould Burien of roof on Decree holder to commence from the date of payment of show that Iransfer was fraudulent The request ·123 AJMER LAW DIGEST 124 CIVIL PROCEDURE CODE (1908) O 20 R11 CIVIL PROCEDURE CODE(1908), o 21 R 15 -0. 20, R 11-Frung of instal An oral agreement as an adjustment of mnents-Judicial Act--Reusion lies 7 decree cannot operate as 1 bar to an erecut on application (Shillout 1 C) (a) Discretion to fix instalments is a Noor VOHAMED Y SUKHAN RAJ judicial d scret on and failure to exercise *3J 2 it in a judicial manner is a val d ground for interference in rev sion 7 L 399 and -0.21 R 2-Executory agreement 11 C LJ 431 Toll (Jolly J C) FIRM No adjustment BRDHI CHAVD SLGAN CHANDY MOTI LAL Executory agreemet t cannot be pleaded 4J 76 in bar of execution, 51 A 573 and 1931 Lah 608 Fell 1935 Bom 303 Not Foll -O 20, R 11- lo local enactment 1935 A AI L J 97 Ref (Voiman JC) permitting instalments to agriculturists KALYAN MIL V RAM PAL in Erection proccedungs 1936 ) 157 No local ei actment appears to exist -0.21, R 2-Parties can substitute permitting instalments to be allowed in fresh contract for decree-It will amount executio i proceedings when the judgment to adjustment debtor is an agriculturist (Weston JC) RAJI V CHITAR It is open to parties to a decree to subs *1935 ) 42 titute a fresh contract for a decree and O 20, R 18 and O 26, R 14 (3) for the judgment debtor on cuch "fresh contract having come into existence to Decrce is preliminars — It becomes final apply for the adjustment to be recorded after hearing parties Au agreement that at one future time on (6) A decree for partition under o 20 delivery of property the decree would be R 18 is only a prel minary decree A fioal considered satisfied would be po adjust decree is passed after consideration of the ment (Il eston J C) AIALA JAWANA Commissioner s Report under o 26 R 14 (3) (Broomfiel I J C) ABDUL VAJID -021, R 2- Joint decree holders- VRBS BRIDI VI IL admission of satisfaction by one does 3 J 59 nut bund others unless he recerred on -021, R 2-Adjustment-Uncerti behalf of all fied-Cannot be recognised An admission of satisfaction by one An uncertified adjustment cannot be Decree holder does not bind the others in recognised by the Executing Court the absence of evidence that he received (IVeston JC) CHAGAV LAL V PANNA it on behalf of others (Norman) C) LAL. \TUHAYMCD AZIZ ULLAN, Y ABDULLAII 1935 J 84 1936 J 32 71935 J 97. -0, 21, R. 2-Oral agreement-No bar to execution application O2, R. 15-Joint decree holders- One cannot apply for his share.

·125 AJMER LAW DIGEST 126 CIVIL PROCEDURE CODE (1908), o 21, R 15 CIVIL PROCEDURE (ODE (1908), o 21,R 58 It is not open to one of several decree the redemption money to the plaintiff, holders to apply for execution in respect 23 ) 121 Foll (Jolly J. C) SETH of his share of the decree It is rot open SOBHAG MAL V P RAM CU INDIA to the court to allon execution for a share *4 J 5 only (lo manj C) MUHAVVED Aziz -021, R 50 (2)—Scope of ULI AU Y AI DULLAH. 1936 } 32 The word 'is disputed must be taken to mean 'is not admitted' (Norman / C.) –0 21, R 15-Appliution for LLELHI SOBHA RAM SRI RAV V I RABHU LAL tron must state that it is filed on bchalf 1934 J 54 of all-Omission is fatal О 21, R. 50 (2) and (3)- Ex parte Ommi-sion to state in the elecu ion order passed by one Court cannot be application that st is filed on behalf of all nestioned by another court joint decree holders is a fatal defect Sub Judge, Moradabad, passed a decree (Norman JC) VIUHAMMED AZIZ ULLAH in favour of appellant against a firm VABDULIAI. 1936 J. 32. Subsequently he granted leave, ex parte, to execute the decree against respondents O 21 R 16-Decrce assigned - No on the ground that they were partners separate application for notice to assign Appellants sought to execute against or licccssary Respondents at Ajmer. Respondents denied, at Ajmer, that they were partners No separate application for notice to the assignor is necessary The request Held, the respondents could cotre open may be made in the execution application the question which had been decided by the Moradabad Court (Norman JC) GULAB CHAD V RAV NIWAS Courts of concurrent jurisdiction can- 1936 J. 79 not question each other's procedure. When an order uoder 0 21, R 50 (2) 19 -0, 21, R 19- Redemption dicic passed, ex parte, by one Court there is a Exccution for defendants costs-olim presumption that it was passed alter tation Commencement of legal enquiry, 1929 dll. 390 Dist. (Norman C) F. SOBHA RAV SRI RAY (a) In a redemplion decree here costs 1. PRABHU LAL. of the suit huve been awarded to the defend 1935 ). 54 aut, execution cannot be had by him under o 21, R19 so long as a larger sum -O. 21, R.58 is puyable by him under the decree to the Also su, 'Trrosfer of Property Act plaintiff -S 3. 0 21, R 58 and R. 63–Objections (6) The defendant being entitled to a set off onls for costs, linutation for erecu dismissed--Suit by ostensible ownertion of his decree for cosis would Burden of proof on Decree holder commence from the date of payment of show that transfer was fraudulent ::

·127 AJMER LAW DIGEST 123 CIVIL PROCEDURE CODE (1908 021,R 63 | CIVIL PROCEDURE CODE (1908) 0 21,R 66. When the ostensible On ner whose The sale proclamation shall specify as objection is overruled by the executing fairly and accurately as possible the Court files a suit under Order 21 R 63 it amount for the recovery of which the sale is for tile opposite party to show that the is ordered which should ipclude all sums transfer was a fraudulent one 8P 890 for future interest and costs incurred and 1927 PC 237 and 55 A 266 Foll due up to that date Any such sum oot (Norman / C) AIOLAN LAL V LIRUAR included in the sale proclamation cannot LAL be claimed thereafter in that Darkhast *1936) 212 except costs incurred and allowed subse quent to the sale proclamation (Norman -O 2', R 63–Scope -No absolute JC) Poosa MAL V HANGAN KOER distinction but a cen a suit wunder 21 *6 J 5. R 63 and on under Transfer of Pro perty Act S 23 -O 21, R, 66-Court sale need 1100 continue for Sezen days There is no absolute distinction between a suit brought under o 21 R 63 of (a) l'he Civil l'rocedure Code does not CPC and 1 suit under S 53 of the lay down that a court sale should continue Transfer of Property Act If a decree for 7 days (Vurply } C) BEHARI LAL holder whose attachment has been removed v 1 HE DISTRICT NAZIR as the result of an objection preferred 3) 51. under o 21 R 58 files a suit against the 0 21, R 66-AppealOrder orer objector on the allegation that the objectors title is based n 1 transfer which is void ruling an objection that only part of able under S 53 then the suit falls under the property should be sold is appeal both O 21, R 63 and S 53 (Norman able JC) ANOLAK CHA\D v RAV NATH An order overruling an objection that RAV NARAIN 1936) 104 only part of the property should be sold is not an interlocutory one but is appellable - 21 R 65-Sale not completed (Norman JC) GAJI DASS SURA) Vacır not entitled to remuneration MIL 1936). 13 (0) The rules do not provide for pay ment of any remuneration to the Nazır 0 21, R 66 (2)-Time of sale nicains when tne sale has not been completed the tonit at hich sale begins (urphy J C) BEHIRI LAL Y Tur DISTRICT NAZIR The time of the sale which is requ red 3) 51 to be set out by Rule 66 (2) obviously means the time at which the sale begins 0 21, R 66-Sale proclamation The bidding ought not to start unul the Contents--Future interest and costs to advertised time (Vormian I c) GAJI be included--Sums not so included DASS V SURAJ MAL cannot be claimed subscquently 1936). 13 ·129 AJMER LAW DIGEST 130 CIVIL PROCEDURE CODE (1908) 0 21 R 66 CIVIL PROCEDURE CODE (1908) 0 21 R 90 -0 21, R 66 (e)Sale proclama tron-Reference to a third party s claun on the property is not material irregu lurity-similarly omission to refer to a possibility of litigation is not a material irregularity (a) The absence of a fioal decree for cale will not necessarily vitiate the prceed ings of the court in execution leading to the sale of the property of an order for sale s passed on a notice to the Judgment debtor 28 C 73 5 B LR and 24 NI 695 Foll (6) In such a case it cannot be main tained in Revis on that the executing court acted without jurisdiction in order A reference in a proclamation to a third party s claim on the property is not a material irregularity Similarly om ssion to refer to a possibility of lt gation s not a material irregularity 55 AL 205 Foll 41 N 985 Not Foll (Norman JC) CHINI LAI VRBS BIRADH MAI LODHA 1936 J 169 ing the sale (c) Jt capnot be held that a court acted irregularly in not taking into consideration an objection shich was never put forward before it (Jolly JC) NARAIN DAS v MISRI MAL 4J 58 O 21 R 67--Stay of court salc- Should be conditional on deposit of Nasır s commission (a) A stay of a Court sale should be ---021 R 90-Non mention of valuc granted conditional on deposit of Nazırs of property is not material irregularity commission in court. (Wurphy J C) BEHARI LAL v THE DISTRICT NAZIR (d) Under 21, R 90 CPC. the 3) 51 only ground for setting aside a sale is soine material irregularity or fraud 10 0 21, R 90-Anton Perchaser can publishing it Non mention of the valua apply to set aside sale tion of the property in the sale proclama tion is not a material irregularity (Jolly JC) NARAIN DAS Y MISRI LAL In suitable case an auction purchaser 45 58 can apply to set aside the sale 17 & 479 Foll 3PLJ 916 9R 621 ai d 14 L 1 Not Foll 36 C 323 Ref (lor 1794 J C) --021 R 90-Auction sale on Sunday RBS BIRD 411 VAL Sale not intalid LODIA 1936 ) 169 An execution cale is not reodered in Salıd simply because toe Nazır Eeld it on 0 21, R 90-lo final decree-iet Sunday (Vurphy) c) Voti LALI sale after 110tı --Salc tot necessarily NESSAS MITSUI Bilss411 LA1501A LTD tord-No Rek :$10! 2) 83. :LAL אוטוCi ·131 AJMER LAW DIGEST. 132 CIVIL PROCEDURE CODE (1908),0 21 R 96 CIVIL PROCEDURE CODE (1908) O 22 R-3 0 21, R 96-Delivery of possession -022, R 2-Sunt for redemptionof cquty of redemption of usufructuary Death of one of the plaintifs-No abate mortgage ment In so far as there can be possession at (2) In a suit for redemption (as the all of the equity of redemption of usu Surviving plaintiff can redeem the whole fructuary mortgage that possession must mortgage by virtue of section 91 of the follow title But if title changed when Transfer of Property Act) there can be the sale certificate was issued it cannot be no question of abatement of the suit on the said that the original mortgagor remained death of one of the plaintiffs (Broomfield in possession of any sort (Norman ) C) JC) Ghisa LAL V SUJAY MAL DEEP CHAND v GHEWAR CHAND 5) 21 1936 J 136 0 22 R 3-Abatement as a whole- -021, R 103-$ut under-Possession It is in the nature of dismissal-Appeal claimed-Court fees Rs 10/ lies (1) The Civil Procedure Code does not When possession is claimed in a suit under 0 21, R 103, CPC which is contain any specific provision for the abatement of a suit or an appeal as a based upon title the proper court fee pay able is Rs 10/ whole when the right to sue or appeal does 5 A AIL J 61 Foll pot survive Such an abatement is really (Normani Ci CHAIBRI BAI v Noor MOHAMMED in the nature of a dismissal of the suit or appeal as incompetent and amounts to 6) 46 decree Consequently an appeal lies from O 21, R 103-Any sut brought to such an order, 17 A 172 and 20 AL. 214 Ref 1 L 582 Foll (Jolly J C) get rid of an order under R 101, what KAJORI MAL v. BEHARI LAL cvcr its form, must be brought with in 4J 77 Onc ycar --- 22 R 3-Representative sunt (2) The effect of Rule 103 of Order 21 Appeal abatud against one appellant- Civil Procedure Code read with Article IV holc appeal does not ab ntc-Tcst 11 A of the Limitation Act is that an wliether appeal cans bc proceeded Ill order passed under Rule 101 can be set absence of legal representatic of aside only by a suit brought within one deceased year Any suit brought to get rid of the effect of an order under R 101, whatever An order that a suit or an appeal its form whether for declaration of eject abates as a whole is not an order falling meat based upon superior title, must be rectly under o 22 R 3 but it is of the brought under R 103, 53 B 668 Foll pature of an order of dismissal as 1926 Cal 377, Dust (Vacklin J C) incompetent because it is not poss ble for CHATUR BIU) Ras hisur DAS the court in the absence of certain parties 5 J 61 to proceed with it 11 is to be seen ·133 AJMER LAIV DIGEST. 134 CIVIL PROCEDURE CODE (1998), O 22, R 3 CIVIL PROCEDURE CODE (1908), 0 22, R 6 mbetber it was not possible to proceed --022, R 4-Total abatement if with the appeal in the absence of the tu ithdrau al or partial abatement will legal representative of the deceased result 11 ttc o 111001sistant decree defendant If the grounds of apperl were As appeal which had abated or was common to all appellants the appellate Court could under O 41, R 4CPC withdrawn as against one Respondent will become incompetent as against the sary the decree in favour of the deceased even if he had not appealed Hence no other Respondent of the Applicants success will result in tro inconsistant decrees. total abatement 4 A. YLI 77 Foll (Weston J.C) ABDUL AZIZ Y AMIR ALI (Normun J. C) MOHAMMED Buy v 1935 J 102 HAZARAT NOOR KHAN. 1936 ) 19 -022, R. 3--Total or Partial ab te ment-Test uhether effectite decrcc can 022, R. 4 (3)-Legal representatite be passed against remaining defendants already 011 record-No application 11ecessary The only criterion is whether an When a legal representative of a effective decree caa be passed against the Surviving respondents deceased party is already on the record no (Jolly J. C) application to join him as such is legally SAMAR CHAND V DAN MAL *33 8 required 51 al 347, 2 R 445, 1933 Lah. 765 (a) Foll 10 P. 341 Not followed. -0.22, R. 3 (2) and (4)--Total abate (Norman J C) FATEH CHAND V. RAMAN. ment-Vliere decree woula be infruc 1934 J 15 tuons-Representatite sut-Parts dies - Legal representative not brought on re -O 22, R 5-Intermeddler and Rover cord-Total abatement sioner-Both to be joined: The decree which would be infructuous Both, an inter-meddler of the deceased's 10 the absence of the legal representatives property and a reversioner, are to be counted as legal representatives. (Baler of some of the deceased parties cannot be JC) MADAN LAL v. GOKAL CHAND. passed. 2 J 16. 1 hough in a suit of sepresentative -0.22, R 6-No abatement betu cen character it is not necessary to make all Preliminary and Final decree the persons interested parties, yet where some persons were made parties their (c) In cases where there is both a presence becomes necessary on appeal. preliminary add a final decice the judg- If any such person dies and his legal meat within the meaning of order 22, R. 6 representative is pot brought on record the is the preliminary decree Consequently suit abates in toto 1926 L 31, 429, 216 no question of abatement arises of a party and 234 and 53 1. C 518 Foll (Vurphy des after passing of the preliminary decree J.C) P. SAMATRI PERSIAD V P Mara 1927 Oudh 156 Rel. (Broomfield J. C.) BIR PERSJIAD ABDUL MAJID V, R. B. S. BIRDI DIAL. 2 J. 55. 3 J. 59.

·135 AJMER LAW DIGEST. 136 CIVIL PROCEDURE CODE (1908), O 22, R.9. - 22, R. 9-Order setting aside abatement-Cunnot be challanged in Appeal: CIYIL PROCEDURE CODE (1908), 0 23,R 3. A parution suit withdrawn under 0.23, R. 1, without any determination of question in issue, even without permission to file a fresh suit, does not bar a fresh suit on the recurring cause of action, 46 A. 820, and 28 A, 627 Foll. (Weston J.C) I ATMA V. FAKHRUDDIN. 1934 ) 118. See, 'CP.C-S. 105' -0 22, R 9-Suit abated-But representatics brought on record-Abate ment sct aside - Question cannot be agitated 11. appcal -0 23, R. 3 - Party cannot be added Even where the suit had abated the affect of bringing fresh representatives on the record would be to set aside the abate ment and the question cannot then be agitated in appeal (Jolly J C) BAGICHI DALLALAN v. HIRA DAS *3] 8 A party to the suit cannot be added by a compromise, (Norman J. C.) Wali MOHAMMED V. WALI MOHAMMED AVD ISVAIL. 1934 J. 29. O 22, R. 12-Provisions do not apply to execution -0. 23, R. 3-Contents of decrec - Whole of compromise should be recorded but operative part cannot go beyond matters 111 Smt. (a) Provisions as to abatement do not apply to execution proceedings (Broomfield] C.) ABDUL MAJID V R. BS. BIRDHI MAL 3 J 59 Although the whole of the compromise should be set out either in a compromise decree or in an annexure thereto, the operative portion of a decree cappot go beyond matter in suit. (Norman 1. C.) WALI MOHAMMED V. WALI MOHAMMED AND ISMAIL 1934 J. 29. -O 23, R 1-Smt not sustainable- Allow plaintiff to withdraw (b) When a suit is unsustainable as brought the proper order to pass is to allow the plaintiff to withdraw the sult with leave to bring a fresh suit, ard on failure to dismiss the suit. The plaint caopot be ordered to be ainended and proceeded with in the same suit. 9 Ail 191 P. C. Foll. (Buker C) SOBIAG MAL v. KISTUR CHAND 1926 S. 41 O 23, R. 3-Auard on an arbitration uithout order of court--Decrcc cannot be passed 111 /crms of award under SK II but a decree may be passed 11.der O, 23, R. 3 Where in a suit parties have referred their differences to arbitration without an order of the court and an award is made, I decree canı ot be passed by the court in terms of the award under the provisious relating to arbitration, --0.23, R. 1 and S 11- Partition- Withdrawal of suit no bar to fresh sust;

·137 AJVER LAV DIGEST. 138 CIVIL PROCEDURE CODE (1909) O 23, R 3 In such a cise honever the transaction may be regarded as a compromise of 20 adjustment and a docree may be passed in terms of it under 23 R3 CPC 51 B. 90s Foll 17 2 637 Diss (Viku JC) SHEO VAKAIS V HLAVA 5 56 CIVIL PROCEDURE CODE (1908,0 34, R 2. directing additional court fees to be paid, GO C 827, and 3 1 4), Foll (TV'eston JC) VALI A BLIV SOBITAG NAL. 1934 J 105. --O 33 R 4-Enqueig only by the court 11! hich smt instituted O 23 R 3-Compromise aflır appeal Order 33 requ res that the inquiry it filcu- Appellate court alonc can enquire contemplates should be carried out by the Lourt in which the sun is filed. (Burpiry (e) Where a suit has gone up in appeal J.C) MST, UVARO V. MIST MARIUM any compromise or adjustment of it under BIBI 023, R 3CPC cau be el qu red into 1). 9. by the appellate court alone and not by the trial court 21 IC 09 Dist 9 Wid -O 33, R. 5-Grounds of rejecting 103 Reli. (Baker C) FIRY LAL application CHAND BADRI NARAIN V FIRM HIRA LAL JAGAN XATH. The grounds upon which an application 1926 $ 19 to continue a suit in forma pauperis can be rejected are those given in O 33, R. 5 -0.26, R 14 (3) and 0. 20, R 18– so far as they are applicable (Weston Decree is preliminarz - It becomes final ). c) MAULA BUY v. SOBIAG MAL. after hearing parties 1934 J. 105. (6) A decree for partition under 0 20 -O 34, R. 2 and R. 4 and S. 34- R. 18 is only a preliminary decree А Mortgage sit-S 34 has 110 application final decree is passed after consideration 34, RR2 and 4 apply-Interest at of the Commissioner s Report under o 26, stipulated rate bu allou ed up to date fixed R. 14 (3) (Broomfield J C) ABDUL for payment MAJID .RB 3. Birdu MAL. 3 J 59 S 34 of CPC, does not apply to -O 33, R 1-Sut sistatuted on page mortgage suits These are governed by 0.31, R2 and R. t. And the conseinct of court fecs-Court holds court fees illudequate and directs payment of quence is that interest must be allowed additional court fees-Plaintiff table to ou the prui cipul to the date of the suit at the rate provided in the mortgage, and pay by reason of potcrty - Hlc can apply to contrune the set 11 forma parperis also at the same rate from the date of the suit up to the date fired by the court for A plait tiff is entitled to seek leave to payment of the mortgage debt, and that continue la forma pauperis a suit already in a decree for sale it may be allowed on filed by him shen by reason of poverty the aggregate of principal, interest and he is ubable to comply with an order cost from the date fixed for payment to ·139 AJMER LAW DIGEST. 140 CIVIL PROCEDURE CODE (1903), 0 38, R 5. CIVIL PRO EDURE CODE (1908),0 41, R 1. date of realization at a reasonable rate Application under Section 12 of the (Murphy ) C) KALYAN MAL V. Sheo Guardian and Wards Act to restrain DAS marriage on the ground that the bride 3) 17 groom was under 18 years of age Court rejected the application. Held, No appeal ----0.38 R. 5- If section 135 of the lies. (Norman J. C) MR. MAHENDRA Contract Act not applicable to a bon LAL V. MANGI LAL fitcil to Court the equitable principles 1936 J 182 on unch the section is based aptly Ji Section 135 of the Contract Act -0, 39, R 7(1)(a)-Court can order does not apply to a bond given to the that situation should not he altered : Court the equitable prirciples on which that cecuon is founded do apply, and a Order directing that the situation discharge can be given to the Surety should not be altered pending disposal of 1930 Bom. 122, 1930 Lal 896 and 56 the suit was an order which the court was Mad 029 Foll. (Norman JC) NATH competent to pass. (IVeston J C.) BistIEN MAL V. ABDUL HAMID LAL V. SRI NARAIN. 1936 ) 1 1935 ) 117. O 38, R 5-Court materially -0, 40, R. 1--Receiver may be altering the terms--Surety is discharged appointed on consideration of allegations of waste and of prima facie 1f the Court by its action materially inerits of case: affect the terms of the surety bond, without the assept of the surety, the latter is A receiver may be appointed when it discharged, 1935 Nagpur 258 Approved appears just and convenient, and for it to (Norman JC) NATH MAL V. ABDUL be just some consideration not only of HAVID allegation of waste made against the person 1936 J 1. in possession but also of the prima facie 0 39, R. 1--Refusal to grant ad merits of the case of the plaintiff in the interim injunction-No Retision. suit is essential. (IVeston J.O) MADAN LAL Y. NARAIN. When a Court refuses to make an order 1935 J. 61. under 0. 39, R. IC.P. C. it is not a refusal of jurisdiction but an exercise of it -0. 41, R. 1-Vemorandum of and is not revisable, (Jurphy J. C.) appeal must gite address of Parlies : SUAVLAT COVVITTCE or PUSHLAR V. PCRSHOTAN. See, Notification by J. C. 1925 S 9. 1936 J I (N.S) 0.39, R. 1. and R. 2 and S. 141-NO -0, 41, R. 1-dleniorandum of appeal against order refusing to issue appeal must explain how caluation has 'enction; been arnted at: ad int ·141 AJMER LAW DIGEST. 142 CIVIL PROCEDURE CODE (1938), 0 41,R 1. CIVIL PROCEDURE CODE (1998), 0 41, R 18 See, Yotification by J. C Rule 4 C'P C power to vary the decree 1936 ) 1. (NS) in favour of even non appealing plaintiffs 27 B 284, 25 A 27 Foll 1927 Pat. Diss -O 41, R 1- Vemorandum-Must (Jolly J c) KAJORI MAL v. BEHARI set forth all points Lal 4J 77. The object of the memorandum of appeal is that respondents as well as court -O 41, R 5--Stay of execution by shall have notice of the points that are to Appellate Conrt on furnishing security. be argued. Any point which is to be Acceptance by louer court of surety bond argued must therefore be stated precisely bezond time is without jurisdictionand this is particularly so when it is a new point which has not been taken in the But surety is liable courts below. (Norman ; C) THAKUR S VISHWA KARVAJI V KATHIA LAL, (2) Where the execution of a decrec has been stayed by the appellate court on SETI *1936 J 210 the judgment debtors furnishing security for the decretal amount within a specified -O 41, R. 1- Execution Appeal - period, the executing court acts without Not necessary to file formal decree jurisdiction of it accepts the security beyond the time so specified. But this An order in an execution application does not affect the liability of the surety is in itself a decree within the meaning of to the decree holder under the bond which S 2 (2) of the C. P C and consequently has been accepted and on which execution It is not necessary to file a copy of a of the decree has been stayed even though formal decree, even if drawn up, with the the executing court had no authority to Memo of appeal (Norman J. C) Mst accept it (Muclin J.C.) R. S NATHU GOPI v. JUGAL KISHORE SINGH Y ADAU *5 J 3 (III) 5 J. 69 -O 41, R 2-Suit by tto co parce. 041, R 11 and S 115-Parties ners---One co pai cener dies after decree 110t heard 111 Recision-No ground for Remaining co-parcener files appeal- Rettet Appeal competent All co parcepers are necessary parties An omission to hear the parties 10 a in a suit on behalf of a joint family. But revision application is not a good ground in an appeal from such a suit where the for a review (Jurphy C.) FIRY ACIAL decrec proceeds on groupds common to DAS BAL CHAVD V. FIRM KLADAY MAL all, the death of one of the co plaintiffs, UDAI MAL whose legal representaties have not been 1) 6. brought on record, does not make the appeal abate as a whole because the -O 41, R18-Process fee to bu appellate court has under Order 41, punctually paid-Otherurse dismissal ·143 AJMER LAW DIGEST. 144 CIVIL PROCEDURE CODE (1908), 0 41, R.19 | CIVIL PROCEDURE CODE (1908), 0.41, R 22. Sec, notification by J. C. The trial court passed a decree against 1934 ) 6 (N.S) four defendants Only defendant No 1 appealed. Lower appellate court held that -O 41, R 19 and S 151--Rule Defendant No 1 alone was liable. exlimustite-But where appellant has 110 notice, S. 151 applicable Held, the effect of freeing defendants When an appeal is dismissed for Nos 2, 4 from liability is to increase the default the proper remedy for its restora liability of defendant No. 1 as he will not be tion is an application under O 41, R 19 able to ask for contribution. As defendant and not S 151 But when the appellant No. 1 alone preferred an appeal, it was had no notice of the hearing he can have not open to lower appellate court to resort tc S. 151 because O 41, R19 read modify the decree to his disadvantage. with article 108 of the Limitation Act (Norman J. C) MIR SARFARAZ ALI V. pre supposes the proper service of summons SED MUZAFFAR HUSSAIN. on the appellant to B 618 and 11 R 26 1934 ) 37. Foll (Norman J.C) MATIRA DAS v. KALYAN MAL -0.41, R. 22 and S. 100--Varying *6 J 7 order of costs of trial Court in absence -0. 41, R 22-Appellate Court canof appeal or Cross objections is terong not modify decree to appellant s detri ment in absence of cross objections Trial Court orders each party to bear its own costs The lower appelate Court's Suit to set aside a decree on the ground order is, '1 dismiss the appeal with costs that it is obtained by fraud Trial Court in both courts' held that the fraud alleged was not actionable and rejected the plaint under 0. 7, Held, this is a slip If an appeal 19 R. 11 (al CPC. Plaintiff appealed dismissed the order of the Court below, Lone appellate Court, while agreeing including its order for costs, stands. That with the trial Court's finding that the order can only be set aside on appeal or fraud alleged as not actionable, held that Cross-objection (Norman].C) Guest the suit should have been dismis ed and Riv v BADULLA. amended the trial Court's decree to that *1934 J 26. exteac. Hclat, the Lower appellate Court should not modify the trial Court's order 0.41, R 22 and S 100---Respons. to the detriment of the appellant in the dent cannot re open findings of fact: absence of cross objections (Norman J. C) RAU BILAS V. RAVDES PAUL (1) A respondent in a Second appeal CAND. *1934 J 50 cannot re-open issues of fact decided against him by way of filing cross-objec -0.41, R. 22-Vo Cross-cbjcctionstions (Jolly J. C) KAN MAL v. Asa No modification of decree to appellant's NAND. disadanlage 4 3. 84.

·145 AJMER LAIV DIGEST. 146 CIVIL PROCEDURE CODE (1908) 0 41, R 23 CIVIL PROCEDURE CODE (1908),0 41, R 27 --041, R 23-Preliminari point The Appellate Court may finally deter Veaning of mine the suit 7fter re settling the issues, under O 41, R 24 CPC when the (d) The expression 'preliminari roint evidence upon the record is sufficent to Is Dot confined to such legal point only as enable it to pronounce judgment This may be ploaded in bar of a sut but means that the evidence should be sufficient comprehends all points of issues shether to enable it to proi ounce a satisfactory of fact or of 175 the determination of judgment fair to all parties (Broomfield ashich has precluded the necessity for 1 C) NASIRCDDIN V Noor MOHAMAD determining other points or issues and *5 J 5 (1) such other points or issues have therefore been left undetermined 9 11 26 10 dll -O 41, R 25—Issue remitted - Trial 289 and 16 Vad 207 Foll (Boler ) c) | Court bound to cturn a findung S SOBHAG NA TODIANSTUR CHAND 1926 S 41 \\hen an issue is sent down it is the duty of the tual court to return 1 finding -O 41, R 23- Preliminary point on it whether it considers the issue mute Definition rol or not (Norman ] C) GIRDHARI Any point whether of fact or low the V DARGAN KHUAJA SAHIB decision of which avoids the necessity for 1936 J 128 a full heariog at a suit is a preliminary point (Hurplus J CIDB SFTH UVED O 41, R 27- Fresh cuidence camiot VIAL BHAGWATI PERSIAD I be put on upon the ground of recent dis 2 ) 62. cotery 1 Foll 0 41, R 23, S 151 and O 17, R 3— The rule does not permit fresh evidence Casc not dismisse lotil crits-it Invounts to be put in upon the bround of recent to decision tonde 11 23nd Hot discover 814 2 P 670 S. 151 or () 17 P 3 Ref (Sorman ] C) Suro RATAS V PUR41 CHAVI) (c) When a case is no dsm sse on *1936 ] 216 mcrits the order is not il der () 17 R 3 (33 All 690 rel-d upou) but ile order 19 O 41 R 27- Additional endence such cases amounts to a dec sign on a can bu ccepted for substantial cause-- preliminary points the the meaning I can not necessary O 41 R 23 C I C and a second appeal lies It cannot be und to be an order under S is CPC (Bill JC) Ippellate court has jurisdiction to S SOBAG VAL accept additional evidence for any substan Lopes histur al cause not onk when it has discovered CITAND 1926 S 41 Tichm? and requires additional evidence 74 1 C 747 Foll 31 B 391 Ref (Barice -O 41, R 24-rudence must be 1 C) ABDUL RATIVAS VIST SADDI. sufficient 2 J 27.

·147 AIMER LAW DIGEST 148 CIVIL PROSEDURE CODE (1908), 0 43 RI CIVIL PROCEDURE CODE (1908), 0 47, R 1 --O 43 R 1 (k) and S 104- Abate (6) If 1 court has to go deeply into the ment set aside--Vo second appeal whole record and lau bearing on the case it is not an error on the face of the record No second appeul fies against in order Shannon ) C) MODU LAL v MOHAN passed on an application made under O 22 LAL. R9CPC (Purply J C) SuvDCR 4). 7 LAL Y MST SUGM 3) 19 Other sufficient cause, 0 45, R 7-Appellant fails to --- deposit security cithin time-High 47 R 1-"Other sufficient Court can crtend time or cancel leite cause-Construed in the light of pre LIONS I ords The rule is governed by Rule 9 of the Prvy Council Rules Under that Rule (n) The words other sufficient cause on failure of the appellant to furnish in 47 Riire to be construed in the security the Court has discretion either to light of the previous words and on the cancel the lenie or to make such further or principle of the rule of 'ejusdem generis other orders as the justice of the case 1922 P C 112 Foll. (Murphy J C) requires GANESH DAS v INDAR BHAN, 1925 S 1 Where the appellant is misled by a clerical mistake in the order of the Court Review hes and files security after the time allowed the Justice of the case does not require that the O 47, R 1 -- Retision dismissed as lense should be resol ed 44 A 216 and belated (out orerlooked reason of 26 A L / +33 Diss 51 Bom 403 Folt Qolly J C) MANOHAN VAL V RBS delas-Reviete lies BIRADI MAL 5 J 11 (6) In order rejecting an application for revision on the ground that it is belated -0 47, R 1 is in evercise of judiciul discretion, wluch Also see Decree-- Imbiguous condi is not ordinarily reused but when the delay tional $$ as due to the applicants haung moi ed the lower Appellate Court for amendment Error on face of record of the decree and this fact was overlooked by the Resising Court it would amount to Other sufficient Cause sufficient cuse within the meaning of Review lies 017, R1CPC (Hurply j c) Review does not lie FIT SOORAT RAV POOVANI CHAND V FIRU JUUNTA LAL HALHAN MAL Error on face of record 1925 S 2 -O 47, R 1-Irror on face of record -O 47, R1-Decree ambiguous-- Reticu Proper remedy 11 Hal is ·149 AJMER LAV DIGEST. 150 CIVIL PROCEDURE CODE (1908,047, R.1. | CIVIL PROCEDURE CODE (1908), 0 47,R 1. When the meaning of the decree is It is not a sufficient reasons for granting doubtful, review is proper remedı (Vorman a Reviews that if another opportunity was J. C.) MOHAN LAL V, KHEN CHAND. given to the applicant he would satisfy the 1934 J 30. court that the previous order was wrong 37 All 110 Rel (Baler ). C) GOPI 0 47, R 1-Conditional decree NATH THE BRAHVANS OF BADI BASTI becoming final-Tral coml cannot PUSHALAR entend time--Relierc is proper remedy 1926 S, 28, When a conditional decree becomes -O 47, R 1-Default in appearing final on the failure of the judgment debtor to comply with its terms, it under 0.9, R 8 CP. C.-Sut dis missed-No Reticio. incapable of being varied by the original court except by means of a review, 35 A. (5) Default in putting in an appearance 582 Rel (Alurphy J. C.) MST. NATHI V. under O 9, Rd, is in no sense analogous JAGRUP. to these sufficient causes and no review 1927 S. 22. against an order dismissing suit or applica. Review does not lie, tion in default lies 1924 Cal. 774 Rel. (Iurphy j c.) GANESH DAS V. INDER -0. 47, R 1- Point not raised at BHAV heuring cannot be raised in Reviero 1925 S, 1. Is The general rule is that a court will not -0.47, k. 1 and S. 151-Neu authoallow a review on a point not raised at the rty - No ground for Relieic hearing of the case, CR. 201 of 1932 (6) The discovery of a new authority is Foll. (Norman J. C.) BB & C. I Ry. no ground for a Review, Co v. EDWARD MILLS CO.LTD., BEAWAR. 6 J. 53. (c) In order which cannot be reviewed on the ground of wrong e position of w -0.47, R. 1-No ground that another cannot also be reviewed under 5 151 judge rcould take different lieu-OfCPC 1 Court cannot alter its order fresh opportunity is guen court might under S 151 because it subsequently come to different conclusion changes its mind (Bakur J C) FIN LAL CHAD BADKI NARIN FIRU (a) It is no ground for resten that HIRA LAL JAG AN NATII another Judge might take a different view 1926 S 19 of the law, not that if another opportunity were given the court might be persuaded -0 47, R 1 and S 115 and 0 41, to come to another conclusion (Shannon R 11-Partes not heard in RAISION J. C) MODU LAL Y. MORAY LAL. No ground for Renter 4) 7. In omission to hear the parties in an -0.47, R. I--No rezlerc on ground Revision application is not a goal ground that precious order trong for a Review (Varply ) C.) FIRV ACHAL ·151 AJMER LAW DIGEST. 152 CIVIL PROCEDURE CODE (1908) 048 R3 CIVIL PROCEDURE CODE (1908) S II P 15 DAS BAL CHAND V F KUIDAS MAL Sch 11 Para 10--Anand based on UDAI MAL illegal refere nce is cold 1 J 6 Tuard made on an illegal reference is 0 48 R 3- lomal order must be absolutely rok and does not require to be clear- Dec ces must con m to Appen set as de 47 Cal 567 and 48 ALI la D 142 Foll 2 P 335 Ref (Il estonj C) DFO hARA v SUGAN CHAND Soc Notification by JC 2J 53 ( GS) 1935 ) 89 -Sch II, Para 1—Party interested Sch II, Para 14 (a)-Scope Referen e authout consent of a party The prigraph applies onls where the against whom ex parte orde, uas passed arbitrator has determined some matter not illegal-Arand and cleciee on Such referred to and such matter cannot be reference are absolutely loud separated (Norman JC.) OULAD HUSSAIN V ASWAD KHAN party although an ex parte order lind 1936 ) 55 been passed gunst him was 1 parti interested within the meaning of Sci II, --Sch II, Para 15-Count can only Para 1, 52 C 85 26 AI 47 and 47 C 555 set aside the arcaid-It cannot pass a Referred (IV stonj C) DEO KARAN different order V SUGAN CHAND 1935 J 89. A Judge is not emponered to set in Sc II, Para 1--Arbitration-Refu ?pperl on an arbitrator If Court thinks that i finding was arrived at by action Where after 1 reterence to High Court which amounted to misconduct then its under S 17 of the lymer Courts Regulation only course IS to set aside the award altogether and before the High Court greits answers OULAD (Norman j C) the parties referred the matter in dispute HUSSAIN Y A SNAD KHAN. to arbitration Hit that until the lymer Court pissed -Sch i Para 15--Talulity of an its find jt dgment on recensing the user anal can be challungul uhen zaldily from the High Court the case must be of reference is concerneal decnied to be ſending judgment and that In spite of the reference to the H gh Court Validity of an 20ard can be challenged the agreement ! refer to arbitrntion was when the invalidity of the reference is in inlid Ifter til reference to arbitration question +52 234 Foll the court can I denl with the matter in mortgigee in possession can bring 1 suit in any w (ll alsh Wallac! JJ) suit for declaration that decree is not bind RAU LAL Y DIORAJ (IV estouj C) Dro hARAN 1922 AL J 876 = AIR 1922 All v SUCAI CIANI) 173 = 641 C 601 =44 A 91 1935 J 89 госс 1936 J 55 ing on him ·153 AJMER LAW DIGEST 154 CONTRACT CIVIL PROCEDURE CODE (1908), S II P 18 -Sch Il Para 16-Decree pa sed on invalid reference is a nullity decree may be passed in terms of it under Order 23 R3 CPC, 51 B 903 Foll 17 637 Diss (Hackinj C) Suco NARAISI HURMA 5 J 56 Sch II Para 22- Arcadis a bato al decree passed upon an award when there was no valid reference is 1 nuility (IV'eston J C) DEO KARANI SUGA CHAND 1935 ) 89 Sch II, Para 16 (2) and S 104— Decree on acard-lo appeal-Reston doubtful Shal Schedule II Part 22 was not intended to set aside the laut under which an luard IS 7 bar to 1 suit (TormanC) 41134 LAL V Hari SHAVEI 1934 } 81 COMPANIES ACT (VII OF 1913) An appeal against a decree based on an ward is incompetent and it is very doubt ful whether even? revision application would lie Ineu objection ngunst un award cannot be allowed in resision (Jolly JC) HIRA Y LALA *5 J 1 (I) Sch 11 Para 20 (2)—Stranger to reference - Cannot be party in applıca tron to file award --S 3-Chief Commissioner is ligh Count Persons who were not parties to 1 reference to arbitration cannot claim to be made parties in an application to file the award made therein (Vurphy JC) MIST BAKIITAWARI V GORDIJA RANGA 1J 7 The Cluef Commissioner of Ajmer and Verwarı 5 the High Court for the purposes of the Companies Ict for places within its jurisdiction and not the Illahabad High Court (Mukerji J) KEKRI PRESS Co LID AIR 1926 AH 619 =28 A 709=24 A LJ 768 -Sch II, Para 20 - Aot applicable to CONTRACT Iefence in a suit i thout an ordu of ---Executory--Condu atton Illeyalthe court-Dut decree may li pa eil foney elanud may li necorered indes C PCO 2 Ru Vone: said in consideration of in (6) 11 here in 2 suit parties hiie referr ejecutor contract or purpose which is ed their differences to trbitration without legal m be recovered back upon repudi order of the court und in ward is made 1 tion of the transaction or upon failure of decree cannot be passed by the court in cons deration (Broomfield J C) GUDHA terms of the Tird under the provisions COOPERATIVE LABOL R and SAVING relating to arbitration In such case SOCIETI LID FIRU UDAI RAV BAIS however the transaction may be regarded ATH as a compromise or an adjustment and 1 5) ·155 AJMER LAIV DIGEST. 156 CONTRACT (Contd) CONTRACT ACT (1872), S. 25. -Implied-Party to diminal case and --S. 16-Undue influencc—Pleadings luis cuiness-Xo contract to pay diet martistic-Still court can grant relief: moncl If there are facts on the record to Tliere is no riplied contract or agree justify the inference of undue influence, ment between party tu a criminal case the court has power to administer relief and hus witness for piument of diet money notwithstandling inartistic pleadings All Conse juenth no suit would be for its that the court has to see is that the recovery (Jolly J C) ALLAH VOOR adiersary is not taken be surprise 777C V MOLA BLI 639 Dist 1931 Nag 63 Foll (Norman *3J 4 J. C) JA'AHAL MAL Dosiy MST. NATHI -Insufficiency of stamp-Contact *5 ). 2 (III) not imalud -S 23 - Consideration to obtain aith- Insulhciency of Stamp duty will not drawal of prosecution is legal: affect the zility of n contract (Jolly J C) SUA LAI v. L IR KAMILYA LAI RAY A bond executed by third persons to CHANDLK enable the accused to secure the compound *3 J4 ing of an offence is for legal consideration, 53 C 51 and 50 C 774 Foll. rate-Just be To obtain withdrawal of a prosecution CONTRACT ACT (IX OF 1872) through the proper authorities is not --S 16-Lliments suppression of prosecution, 11 B. 566 Not applicable. (IV'eston J.C) MOHRI LAL The elements of unde influence are V ALAN ALI that une person shuuld be in the position to 1935 J. 9. dominate the will of another and that he should nie used that position to obtun an -S 23-Stipulated linfiradi iniine (lo manj C) JANAUAN allorced hou ter high MAL V N111 (a) Ihen there is a stipulated rate of *5 J 2 (III) interest the court must allow it loweser -S. 16-1 duchung nilation - Contract hugh it mn loc (Hurply J. C.) Bpart Pra MICI. Inconscionablı-Burdu on LAL 1. ANIMLI), clomitant faits 1927 S 19. I\liere ? Duron, who is in a position to S 25- Sut cannot be based on mort dominate the wall of another, enters into a acknouldsment contrict with luni ind the contrict appears to le inconscimble the burden lies on the I mere achnon ledgment of an older former to show that the contract was not tleht, without a promise to pay, cannot be inducat in unilue influence (Norman C) minde the linsis of 1 sut, 1.... L.). 16, JANARIA Y NATII, 22 B. 513, 52 13. 521 and 56 1. 281 Foll 25 J. 2 (III) 1926 1. d. LJ. Sutniemut , 1926 1.

·157 AJMER LAIV DIGEST. 158 a113 tunne CONTRACT ACT (1872), S 45. CONTRACT ACT (1872, S. 60 1LSuprlement 29, 5 A 1.LT 51 Du cun shit Su Jon Edge and Air und 46 B 21 Not Followed. 3C 1017 meu 11.) RB SFTI NOMI CHAND Not applicable y S RADHI WISHES ILR 48 C 839=61 1 C 904 distinction should honey er be drinn =AIR 1922 P C 26=30 MLT 39 between an achnow ledgment which contains = 26 CWN 153-14 M L W 391 in e press promise to put ind one from =1921 MW N 411 Khich a promise to pat can he inferred (11 eston JC) NARSINGI DASI RI SEO-Creator can notropriate at hAHAR 1935 J 14 I creditor is not bound to make his (For full references Scu Limitation appropriation 15 coon is the money is paid but Ict-S 19 in do it at in time In appropria tion mide in the paint tum ad principal -S 45-Presumpuon Csile Limitation A 632 Dist (Tornim IC) DUGA LALI LAVHAIYA While the presumption is that the LAL promisees are joint there is no birinin 1936 J 34 to their rights being several By filing? -S 60- Creditor s right of apportion suit alone plaintiff impliedly asserts that the contract was severn! (Norman j C) ment Subsequent amendment MIR SARFARAZ ALI y S Μι/ΑΣΙΛΙ ( The creditor s right to apportionment HUSSAIN ar ses only when the debtor has omitted to 1934 J 37 intimite and there are no other circum stances diciti, to which debt the 115 S 60-Principal and interest both ment is to be pplied due-Indefimte pagment by debtor- Creditor is entitled to appropriate it to (11) Once it has been held by the Court interest-But it debtor stipulates that thit in sun shch the pluntuff approprit zyment is to be appropriatel only to ted: Icetun hhatt should not hae been pructpal creditor afront sppio rited the plutiff is justified in (ccordwigiz or return the money umending In ICC unt (\orman ] C) JOD RAJ RAVZAV creditor to whom principal med *1934 J 100 interest are owed is entitled to proprnte --S 60- Approfuation by plaintiftan indefinite pisment which he gets fim Bu cil on luw 7 debtor to the pisinent of interest 1 debtor might in maling 7 z ment stipulite There ? plaintiff clums a Sum of that it is to be applied only to prin pal me in dmuts that certain pynients If he did so the creditor need not clept huelxen mide which in them-elves would the priment on those terins but then he bit sufhent to satisfy the debt in suit must give back the money or the cheque burden is clearl upon plaintiff to a U sluch the money is preferred ·159 AJMER LAW DIGEST. 160 Stimp CONTRACT ACT (1872), S 62 CONTRACT ACT (1872, S 78 appropriated to other debts and were not in --S 74-If rate of interest penal satisfaction of the debt in suit (Jolly interest at reasonable rate ought to be IC) RAMA Y RADIA LAL auc arded *5 J 2 (1) If the rate of interest is found to be --S 62 and S 70-romissory note - penal the Court ought to 2uud interest at a reasonable rate (Norman J C) AMAN Honey lent or promissory notc-Promis CHAND v KAVA so y noti inad 11ssible for 111sufficiency *1934 J 101 of stanip-Loan cct4 be proted orally Inspite of the piou issory note -S 74–If interest penal-Reasonable rate be allowed-1f interest is excessite Toney was lent on 1 pro note The and unfair Court may reduce 11 pro note us andmissible for insufficiens Ile plunt did not mention the (6) If interest is penal the court may I ro note The suit was framed as one for 2ward it at such rate as is reasonable and the recovery of money lent Heli A when it is not penal the court may reduce plantilf con sue on loan independently of at if it is eicessite and the transaction was the pro note The acceptance of 2 negoti substantially unfair under S 74 of the ble instrument s a conditional and not an Contract Act and S 3 of the Usurious absolute discharge : e the giung of a Loans Act of 1918 (Vurphy JC) pro note does not operate as an absolute BEHARI LAL V AUVED. re payment of loan 12 Rang 500 1933 1927 S 19 Nag 57 (2), 1932 Oudh 235 11 P 135 --S 74—Interest from date of bond, on 21B 360 2) Cal 81 Followed 53 A 111 (F B) Nat Foll (Vorman JC) default, is punal Oral B LLACH Y GIRIAR LAL In so far as interest is to run from date 1936 J 37 of bond and not from the date of default it is penal There is no low which forbids ---S 70-Applies to Doctor s fees allowing such interest Unless relief can It is not usurl for 1 doctor to stipulate be granted under sone statute such as the surious Lorns Act or S 33 of mer for his fees He would be entitled to ! resonable tees for his services unless thes Laus Regulation parties must be held to were intended to be gratuitous the terms of their contrict (Norman JC) (Norizan NOTI LAL NAD LAI v Krla JC) Ros DR JV v GROSH VIR NK *6J 3 *6) 4 -S 78-Plaintiff refuses to receite --S 70-lasherman money - Defend it's failure to tonder does In alısence of agreement 1 sherman not entail forfeiture is entitled to reasonable remunerntion for Once phuintiff refuses to ES services (Iorman JC) TASAVAL nionej unconditionally, the defendants are HLSUV VLTAVAD BLI not bound to tender it and such failure on *6J 1 their part dors not nnount to forfeiturc of receive the ·161 AJMER LAIV DIGEST 162 CONTRACT ACT (1872) S 103 their title to the properti (lonian C AveA LALI HARI SHINKER 1934 J 81 CONTRACT ACT (1872), s 184 If the Court by its action materialls affects the terms of the surety bond without the assept of the surety tle latter is discharged 1935 Nagpur 258 Approved (normaui , C) NATH NAI V ABDUL HAVID 1936 ) 1 -S. ;103-Railt az 1occipt-Transfer of title can bc effected by endorsement and not delitary A Raila 21 receipt is an instrument of title But mere delivery of it is not sufli cient to transfer the title There must be an endorsement in writing on it (Jolly J. C) THE SECOFTAL I or STATE RAM DHAN DAS HATIAN VAT *3 ) 5 -S 145-Suret) can recorer from principal debtor a haterer sum le mai hare rightfully paid-Wrongful pau ment etplamed d not crecuted nicipal bond deration cuted simul Ibond, the son (Jolly SINGI *3 ] 3 A Surety can recover from the prin cigal debtor whatever sum he has right fully paid under the guarantee A payment made under a decree passed agrinst the surety cannot be said to be a wrongful payment unless the decree was obtained owing to the collusion or the gross negligence of the surety If the surety fails to put forward a defence, the success of which would be, owing to the divergence of judicial opinion extremely doubtful, he cannot be held to have been grossly negligen: (Norman ) c) HUILAS Y SUKHA 1936 y 41 bond ples -S 151, S 352 and 172--Tatened articles lost-Pau. nec not responsible for loss of he has talen reasonable care ct e 1 pln nee is one kind of bailee 1 bailee is bot responsible for the loss of un article bailed if he has taken reasonable care (vorman JC) NISRI MAL 5411A *1936 ) 210 --S 184 - Vinor can be agent-ile bind his Principal-But Principal not suc xiinor for Darages- l'or ·159 AJMER LAW DIGEST 160 stimp CONTRACT ACT (1872), S 62. CONTRACT ACT (1872), S 78 appropriated to other debts and were not in --S 74-11 rate of interest penal, satisfaction of the debt in swt (Jolly interest at reasonable rate ought to be IC) RAMA V. RADIA LAL au arded *5 J 2 (I) If the rate of interest is found to be -S. 62 and S 70–I 10missory note - penal, the Court ought to award interest at a reasonable rate (Norinan JC) AVAR Voney lent on promissory 110te-Promiso CHAND V. KAVA sol y noti inadmissible for insufficiency *1934 J 101. of stamp-Loan can be proted orally 111 spite od the promissory note -S. 74-If interest penal-Reasonable rate be allon cd--If interest is cxcessite Vloney was lent on ? pro note The and 11nfair Court may reduce 11 pro note was inadmissible for insufficieny The plunt did not mention the (6) If interest is penal the court may pro note The suit was framed as one for 2ward at at such rate as is reasonable and the recover of money lent Held, A when it is not penal the court may reduce puntiff can sue on a loin independently of it if it is excessive and the transaction was the pro note The acceptance of a negoti substantially unfair under S 74 of the able instrument is a conditional and not an Contract Act and S 3 of the Usurious absolute discharge , e the giung of a Loans Act, X of 1918 (Murphy I C.) pro note does not operate as an absolute BEHARI LAL Y, AHVED. re payment of a lon 12 Rang. 500, 1933 1927 S. 19, Nag 57 (2), 1932 Oudh 235 11 P 135, 21 B 300 23 Cal 851 Followed. 53 A. --S. 74— Interest from date of bond, on 111 (F B) Not Foll (Vorman ] C) default, is ponal: ONLAR BILI Aru v GIRAR LAL. In so far as interest is to run from date 1936 J 37. of bond and not from the date of default it is penal There is no law which forbids -S. 70. Applies to Doctor's fees allowing such interest Unless relief can It is not usual for a doctor to stipulate be granted under some statute such as the for his fees He would be entitled to a Usurious Lorns Act or S 33 of Ajmer reasonable fees for his services unless they Laus Regulation, parties must be held to Here intended to be gratuitous the terms of their contract (Norman JC) (Norman JC) Roi, Dr. J M. v Ghosh, MR NK MOTI LAL NAND LAL Y KELA *6 J 3 *6 J 4. -S. 78-Plaintiff refuses to recente -S. 70-IV ashermant mones-Defendunt's failure to tender does In absence of agreement a washerman not entail forfeiture is entitled to reasonable remuneration for Once plaintiff refuses to receive the 1115 services (Norman J. C) 1AJI YAL money unconditionally, the defendants are HUSAIN V. MUHAMAD BUT. not bound to tender it and such failure on *6J 1. their part does not amount to forferture of ·161 AJMER LAW DIGEST 162 9 CONTRACT ACT (1872), S 103 CONTRACT ACT (1872), S 184 their title to the property (Narman JC) If the Court by its action materially AMBA LAL » HARI SHAVER affects the terms of the surety bond, 1934 J 81 without the assent of the surety, the latter is discharged, 1935 Nagpaer 258 S. :103-Raila ay receip-Transter Approved. (Norman JC) NATH MAI of title can be effected by cho Su menit v. ABDUL HAVID. and not delit ar3 1936 J 1 -S 145–Surety can recozer from 4 Railway receipt is an ulstrument of title But mere delivers of it is n » suffi priuipal debtor whaterer sum he maj cient to transfer the title rheit must le hare rightfully paid--Il'rongful pas an endorsement in writing on it (Jolly ment erplained J. C) THE SECRETO STATE A Surety can recover from the prin RAN DHAN DAS LAIYA VAT *3 J 5 cipal debtor whatever sum he has right ſully paid under the guarantee. A S 127_Surety bond not ciecuted payment made under a decree passed Against the surety cannot be said to be simultaneously with Principal bond & wrongful payment unless the decree surety ship is without consideration was obtained owing to the collusion or If a surety bond is not exeruted simul the gross negligence of the surety. If the taneously with the principal bond, the surety fails to put forward a defence, the surety ship is without consideration (Jolly success of which would be, owing to the JC) DAYA BHAI v. DOLARSINGI divergence of judicial opinion extremely *3 J 3 doubtful, he cannot be held to have been grossly pegligent (Norman J.C) HUI LASI SUKHA. -S. 135-If section 135 of the 1936 J 41 Contract Act not applicable to a bond gren to Court, the eqmtabli prmciples S 151, S. 152 and S 172- Farned on uluch the section is basculappi articles lost - Pau nec not responsible for loss of he has tal en reasonable care If Section 135 of the Contract Act does not apply to a bond ghen to the A panee is one kind of bailee Court the equitable principles on which bailee is not responsible for the loss of that section is founded do appli, and a an article bailed if he has taken reasonable discharge can be given to the sureti. (Voimau J C) MISRI MAL , 1930 Bom 122, 1930 Lali Do and 56 S441 Vad 025 Foll (Norman C) WITH *1936 ) 210 MAL V ABDUL HAVI). 1936 | 1 -S 184 — ilinor can be agent--He can bind luis Principal-But Principal ---S 135-Court materiallı altcring cannot sue or for Damages-Nor the terms-Surety is discharged can minor sne for commission: care ·159 AJMER LAW DIGEST. 160 (6) If interest CONTRACT ACT (1872), S 62. CONTRACT ACT (1872), S 78. appropriated to other debts and were not in --S 74-17 rate of interest penal, satisfaction of the debt in sut (Jolly interest at reasonable rate ought to be C) RAMA V. RADIJA LAL ancarded *5 J 2 (I). If the rate of penal, the Court o -S. 62 and S 70- / romissory note - a reasonable rate loncy lent on promissory sote-Proms. CHAND V. KAMA SOI y note inadmissible for 111sufficiency of stamp-Loan can be pored orally ospite of the promisso! 3 110fc ---S 74-If ini rate bc allored- Voney 135 lent on 2 pro note he and unfair Cour pro note was inadmissible for insufficiens stimp 1 he plunt did not mention the pro note The suit was framed as one for alard it at such the recovery of money lent Helit, A when it is not pe plantiff can sule on a loan independently of it if it is excessit the pro note The acceptance of a negoti substantially unt able instrument is a conditional and not an Contract Act an absolute discharge : e the giving of a Loans Act, Ii pro note does not operate as an absolute BEHARI LAL V. re payment of 2 loin 12 Rang 500, 1933 Nag 57 (2), 1932 Oudh 235 11 P. 135, ---. 74-Intet 2 B 360 23 Cal 851 Followed. 53 A default, is pena 144 (F B.) Not Foll (Vorman JC) ONKAI BALLAPA V GIRIAR LAL. In so far as 1 1936 J 37. of bond and not is penal There' -S. 70- Applies to Doctor's fees allowing such in It is not usual for a doctor to stipulate Usurious Loins be granted under for his fees He would be entitled to a Laus Regulatio resonable fees for his services unless they the terms of the were intended to be gratuitous (Norman MOTI LAL NA JC) ROX, DR. J M. v. GHOSH, MR NK *6 J 4. --S, 78-PI -S 70-IVaslierman 1Hone3-Defen In absence of agreement a washerman 110t cutail forfi is entitled to resonable remuneration for Once plun 1115 services (Norman J. C) 1 AJAWAL money uncondi HUSAIN V. MUNAVAD BUT not bound to tender it and such failure on *6). 1. their part does not amount to forfeiture of ·161 AJMER LAIV DIGEST 162 3 CONTRACT ACT (1872) S 103 CONTRACT ACT (1872), S 184 their title to the property (Norman IC If the Court by its action materialls AVDA LAL 1. HATI SHARE affects the terms of the surety bond, 1934 J 81 without the assent of the surety the latter is discharged 1935 Magpur 259 -S. 103-Railt az rcccpt-Transic) Approved (Norman JC) NATH MAI of title can be effected by UOST v ABDL L HAMID and not delitary 1936 J 1 -S 145-Surety can recorer from Railway receipt is 10 instrument of title principal (lebtor rhaterer som he moj But mere delivery of it isnt su cient to transfer the title I helt must le hare rightfully paid-Wrongful paz an endorsement in writin on t (Jolly ment e planned J. C) THE SECRET 4ry 01 STATE A Surety can recover from the prin RAU DHA DAS LAVAVAT *3 J 5 cipal debtor whatever sum he has right fully paid uuderine guarantee A -S 127—Surety bond not exccuted payment made under a decree passed ng? nst the surety cannot be said to be simultaneously aith Principal bond a wrongful payment unless the decree shrety simp 19 1 ithout consideration was obtained owing to the collusion or If a surety bond is not executed simul the gross negligence of the surety If the aneously with the principal bond, the surety fa ls to put forward a defence, the zurety ship is without consideration Volly success of which would be, owiog to the IC) DAYA BHAI Y DOSANSINGI divergence of judicial opinion extremely *3 J 3 doubtful he cannot be held to have been grossly Degligen. (Norman JC) HUI LAST Y SUKHA -S. 135-1f section 13 of the Contract Act not applicable to a bond giten to Court the equable principles S 151, S 152 and S 172-Faures! on u hich the section is basui appli articles lost-Par nec not responsible If Section 135 of the Contract Act for loss if he has taken reasonable care does not apply to a bond guien to the A prunee 's one kind of bailee Court the equitable principles on which bailee is not responsible for the loss of that section is founded do apply and 1 an article bailed if he has taken reasonable discharge can be given to the curets care (lonman J C) MISRI MALI 1930 Bom 122, 1930 Lai 896 and 50 SAWAT Had 025 Foll (Iormant IC) NATI NAL V ABDUL HANIN. -S 184 - linor can be agent-He 1936 J 1 can bind his Principal--But Principal --S 135-Court materiallı alterius €119190 Shil diretor for Day the terms-Surely is discharged can mmor sue for co 1936 J 41 *1936 J 210 ·163 AJMER LAW DIGEST 164 one CONTRACT ACT (1872), S 186 | COSTS (1) A minor can be an agent under of the Contract Act He would be per S 184 of the Contract Act and can bind sonally liable by custom only if a custom his principal in transactions with third 15 pleaded and proved (Jolly J. C) parties But the principal cannot sue the FIRM RAM RATAN RAM CHANDER V moor agent for damage caused by his GAVESI RAM default and rights and liabilities being *4 J 2 co extensive the minor agent cannot sue his principal for the commission (Bater S 251- Acknou legment by JC) GUL RAJ V FIRY SOHAN LAL partner or contractor-Authority to bund GANESH NARAIN. others can be inferred 1926 S, 9 The authority of partner to sign -S 186---Wife can pledge husband s ackpowledgments so as to bind other credit for necessaries partners may be ipferred from circum stancs The same pripcipal applies to in the absence of a prohibition a wife co contractors 41 M 247 and 3R 367 is entitled to pledge her husband s credit Foll (Norman ; C) PANCHU LAL V for necessaries (Murphy J C) CHARLES MOHAN LAL, HENRI COPD v MA GI LAL 6 J, 39 1 J 16 CONVERSION -S 196&S 228-Agent deriates from Principals instructions--Principal not bound-He may ratify or repudiate Sec, Tort-Conversion Priscipal not liable for Agent's tran sactions in which the latter has deviated from the former's instruction Principal COSTS may ratify such a transaction if it results in profit and may repudiate it if it results Also See CPC-S 35. 10 loss J C) FIRY SHEO CPC-O11, R22 NARAIN BAL MULAND V FIRM GHISA LAL POLHAR MIAL -Execution of-to be claimed when *3 J. 1 sale proclamation drawn up or before disposal of Execution -S 230-Broker-- 11 hen personal labılıty The most suitable time for claiming costs of Execution is when the sale procla A broker is an intermediary employed mation is drwn up but a request made by each dealer for the purpose of bringing at any time before the Darkbast is finally him into contact with another dealer disposed of is not too late. (Norman JC) Personal libility attaches to him only POOSAL MAL Y LOER in the circumstances specified on S 230 6 J 5 ·165 AJMER LAW DIGEST. 166 CO OPERATIVE CREDIT SOCIETIES ACT COURT FEES ACT (1870), s. 7 (II OF 1912) Where after the passing of a decree -S, 24-Applies to order made under It is found that the plaint was inproperly S 42 and not to proceedings isi execution stamped, it cannot be recovered by attachof such an order ment of plaintiff's mmoveable property. (Norm in JC) CHAGAN LAL V. CHAGAN Liquidator sought execution of his LAL. award against legal representative of a *6.) 3. deceased member after expiry of one year Lower appellate Court held that S 2+ --lasufficient- Appeal 110t properly barred the application. Hold, S 24 had stamped-Court may order parts to make 10 application because it applied to an up deficiency urthin limitation If appeal Yrder made under S 42 and not to procee fled on last day of lumtation correct lings 10 execution of such an order. procedure laid dowi. Broomfield J. C) M. LAKSHMI NARAIN LAL CHAVD. Sec, CP. C.-O 7, R 11 (c) 5 J 30. -Revision-Revision lies on question -S 29-Loan to non member is illegal of Court Fees, 55 A. 271 Foll. (Norman and ultra vires-But surt lies for recorery J.C) CHAIERI BAI v. Noor MOHAMAD of money lent 6 J. 46 vires A Society is probibited from making a loan to any person other than a member. Such a loan, if made, is illegal and ultra COURT FEES ACT (VII OF 1870) But the bond on which the tran saction is based does not become invalid --S 4-Temorandu1 insufficiently and unepforceable at law on that account stamped Court not bound to allow time, Such a case is covered by the English rule that money paid 10 consideration of It is not obligatory upon a Court to an executory contract or purpose which allow time to remedy a deficiency in Court is illegal may be recovered back upon fee in the case of a memo of appeal. The repudiation of the transaction, as upon concession alloned by S 149 C P C. failure of consideration. (Broomfield J.C) cannot be claimed as of right 38 B. 11 Diss GUDIIA CO OPERATIVE LABOUR AND 50 A. 980 Foll. (Jolly J C) SAVING SOCIETY LIMITED, TIRS SUJA VAND v VOOL CHAND UVAI RAM BAIJ NATI. 4 J 27 5 ) 26 S. 7-On allegations in plaint A plaint should be stamped on the COVRT FEES allegations contained in it and not on the allegations of the defendant (Norman -Court Fees-Deficient-Cannot be u.c.) CUAIBRI BAI 1. Noor TOHAYVED." recot cred by attachme ·167 AJNER LAW DIGEST. 168 COURT FEES ACT (1870), s 7. COURT FEES ACT (1870), SI, A 1 S 7-Plaintiff can always cffcct the full consideration and not only the Sating of Comt Tees by reducing this unpaid portion of the purchase money Main of othercise permissible (Norman) C) SUKH DEO, KUNJ LAL 1936 J 114 It is always open to a plaintiff or an appellant to reduce his cla mind effect --S 12-Scope a saung of court fee if otherwise per (4) S 12 refers merely to the determi missible In so far as he submits to the nation of the proper court fee payable on decree appealed agunst it becomes final any particular class of suit It is only and the appeal is limited to the amount such determination by the trial court that in contest on which alone court fee need is made fipal by the section It does not be pard It is for the cou t in each case lay down that the determination of the to determine whether the reduction is class itself under which a particular sut o herwise permissible 1929 All 308 Foll may fall is also final AD Appellate 30 / C 379 and 621 C 36 Dist CR Court is consequently entitled to decide 51 of 1933 Modified (Norman ; C) whether the determination of the class of B B & C l RY Co v EDW ARD NULLS a suit by the trial Court is correct or not CO LTD, BEAWAR (Alacklını C) CUATUR BHUJ V RAM 6 J 53 KISHEV DAS 5 J 61 S 7 (IV) (c)--Plansitiff cannot put ridiculous fignie SS 20--Process rees and Process serving establishment-Rules (a) Under S 7 (4) (c) of the Court Fees Act the plaintiff is not entitled arbitrarily Scc Notification to assume a ridiculous figure for the 1935 ) (NS) consequential relief (111 rphy ✓ C) Sch I, Art 1-Counter claint-Court LADU RAY VRBS CHATIPA LAL 1925 S 11 Fees on full amount and not difference Ad vrlorem fee is to be paid on the --S 7(V) (B) and S 1 (X) Sust for full amount of the counter claim and not specific perfor nance of contract and merely on the differer ce between the possession governed by S7 (1)-Court claim of the plaintiff and the defeodant I ces to bc paid out full col sidcration and 40 A 218 Fol) (Jolly ) C) GULAB not only on the unpad portion of the CHAD LINHUI CHIAND v THE MAHIA purchase money LATVI MILLS CO LTD *5 J 2 (1) Suit was for specific performance of contract and for posses510D Held it --Sch I, Art 1 and Sch II, Art 17 (1) ought to be alued according to the or (vi)-Scope amount of valuation 38 All 292, 11 Cal When a first appeal is rejected for 239 17 lal 150, and 1929 Pat 612 Foll failure to pay proper court fee or is 1923 Lalt 16 and 16 1C 312 Dis! disniicted as time barred for the sadje Ad valoram Court Tees is to be paid on causo, Art 17 (i) or (vi) has no application ·169 AJMER LAW DIGEST. 170 COURT FEES ACT (1870), S I, A 4 COURT FEES ACT (1870), S II, A 17 and the second appeal should be stamped Sch 11, Art 17 (I)--Sunt under 0 21, ad valorem under Sch. 1, Art 1 1927 R 103 of CPC to bc court feed at 117g 100 Diss (Norman ) c) HIRA Rs 201 LAL Y HAZATI MAL JETU MAL ( 21, R 103 cf C. PC enables a 6J 16 suit to be filed on a Court fees of Rs 20 ---Sch 1, Art 4- Retretc application for possession by a person who has been should be stamped on the taluation of dispossessed in execution of a decree to thic plamt or memorandum of appcal which he was not a party, and whose A review application should be stamped application under 21, R 100 has been disallowed (11 eston JC) ABDUL on the valuation is the Memcrandum of GarFAR v MOHAVED SHAFI, Appeal 50 V 488 and 57 Cal 679 Foll 1935 J 107 (Norman ) c) Benari LAL V S B BHAGWAN SINGH BAR AT LAH -Sch II, Art 17 (1) - Sut under 0 21 1936 J 189 R 103 CPC-Possession claimed --Sch 1, Art 5-Ad calorum stamp Court foc is Rs 101 duty (2) Even if possession is claimed in a Ad valorem stamp duty is necessary suit under R 103 based upon title, the on a Review application (IVeston ) c) proper court fee payable is Rs 10/ only KANHIYA LAL V MST PIULAN 9 B 20 35 C 202 Rel. (Macklını ) C) 1935 ) 22 CHATUR BHUJ V Rav KISHEN DAS 5 J 61 -Sch II, Art 17 (1) or (vi) and Sch 1, Art 1 -Scope of Sch II, Art 17(VI)—Mortgage suit- When a first appeal is rejected for Only personal decree granted-Appeal failure to pay proper Court fee or is for obtaining Mortgage decrec to be Court dismisses as time barred for the same fced at Rs 101 cause Art 17 (1) or (vi) has no application When a plaintiff, who has partly and the second appeal should be stamped succeeded appeals the general principle ad valorem under Sch 1 Art i 1927 is that the appeal sbould be valued on the Tag 100 Diss (Norman JC) HIRA LAL difference between what he has got and v. HINZARI VAL JETU VAI hat he claims in a case where a 6J 16 personal decree has been granted in a --Sch. II, Art. 17 (1)-Possession 11 mortgage suit and the plaintiff claims a smit ander ( 21, R 103 C P C. mortgage decree appeal the relief claimed cannot be estimated and therefore When possession is claimed in a suit under 0.21 R 103 CPC which is & stamp of Rs 10' is sufficient (\ormant based upon title the proper court fee pay JC) FATEH CHAND V. RANAS able is Rs 10, A1 L J 61 Foll 1934 J 15 (Vorman JC) CHAURI BAI 1. look -Sch II, Art 17(VI) - Partitios smul- MOHAVIMCD Muhammedan co sharers-Court 6 ID ·171 AJMER LAW DIGEST. 192 the money COURT FEES ACT (1870),--Concluded. CRIMINAL PROCEDURE CODE (1898), s 162 The correct method of regarding the punish the accused, 26 AI 592 and 1924 relief claimed in a suit for partition was Cal 429 Foll (Alurphy J.C) CROWN v. that it was merely a prayer to change the HAZARI 1927 S 4 form of enjoyment and could only be valued by deducting from the value of -S 42-Only personal assistance the plaint ffs share as ascertained in the can be demanded - Police cannot re partition the value of his benefical enjoy quire a person to put his house at their ment as coparcener before partition In disposal such a suit it was impossible to estirate value of the suit and such The assistance which may be demanded a suit would fall within the provisions of clearly is the personal assistance of the Article 17 (vi) of the Court Fees Act, person of whom it is demanded The 1926 Mac 122, 1924 Vlad 207, 1926 llad police cannot require a person to put his 678, 1924 Pat 640 Foll (Dalal and house at their disposal (IVeston J C.) Pullan JJ) MST ALIMAN BIDI Y JAW AND LAL DUTT CHOWDHRY, MR. V. GULAM AHMAD CROWN 2 ) 1 1935 J 1 S 133-Not applicable to Shamlat land-Common land not necessarily CRIMINAL PROCEDURE CODE (V OF 1898) public land S, 12 & S 15-Hony Magistrates Proceedings under S 133 are not appro Benches and their pouers priate to cases of encroachment on Shnmlat land Common land 15 not Sce Notification by Chief Commi necessarily public land (1Vcston J. C, ssioner GIRDHARI V. SHAMLAT COMMITTEE, 1 J 12 (JS) BEAWAR S 16- Rules for the Guidance of 1935 J. 53 Benches of Hony Magistrates -S 147—Right to perform Puja is Su DM s Notificntion not a right to a user of land 1. J 10 (15) A right to perform Puja is not a right -S, 28 and 5 215-dny offence can to a user of land, 52 C 959 Foll (Nor be Iried by Session Court-Commitment man J C) MST DHAPU V RADHES tinder S 147 IP.C not illegal LAL. *1936 y. 218 (6) By virtue of S 28 of the Cr. P Code any offence under the Indian Penal -S 162-Presumptions Code can be tried by the Sessions Court When it is proved that a witness has and a commitment for 10 offence under made a statement to a police officer and S 147 IPC is not illegal of the Magis- such statement is not put in under Section trate thinks that he cannot adequately | 162, a presumption arises that such state ·173 AJMER LAW DIGEST 174 for it (Il es CRIMINAL PROCEDURE CODE (1898) S 162 CRIMINAL PROCEDURE CODE (1898) S161 ment does not contradict his evidence accused not just now but ne should apply Io the same way if a witness making an Held this s not compliance with Idotification la Court has been given ? S 162 Criminal Procedure Code previous opportuu ty of identification ton! J C) BBL I CROIX before the police a presumption arises that *1934 J 144 he is pointing out in Court the same persons as he pointed out in the presence S 162— Von compliant ? ith the of the police since otherwise the defence provisions of S 162 ritrates the trial could under Section 162 contradict him by putting in evidence under Section 162, Von compliance with the prov stons what he said to the police (Norman JC) of S 162 or S342 rend mill S 364 ure TOSHTA hiig EMPEROR. alle alities which are sufficient to vitate 1936 J 50 this magistrate s Proceedings (1) eston S 162--Scope JC) BU V CROW *1934 J 144 Evidence by the police or any other person that particular witness identified S 164-Confessions-Hor to be a particular accused is excluded by Sec recorded tron 162 18 identification is done by question from a police officer and a gesture See Notification by JC from a witness then there is a 'Statement 1934 J 6 (NS) within the meaning of 162 Statement means the expression of what is in a --S 164-Duty of magistrato-To person's mind however conveyed Nor satisfy that confession coluntary may the identifying witpess himself be asked whether ne pointed out some person It is the dity of Magistrates to satisfy as the man who robbed him sirce that is them elves that confessions recorded by to questop him on what he said to the them have been given voluntarily but police But Section 16' does not debar ng particular form of inqi ry is prescribed the witness from stating that he was by las (Il eston JC) Ev hALIANA showo several men that the accused were 1934 J 130 among them and that he did then recog oise them as his robbers (Norma JC) -S 161-dcused thnks Magistrate TOSHI4 v KING EVPTROI ta bi Police Officer-Confession not 1936 J 50 malıd an S 162—Scope If sh le making ? confession During the final cross examination of arcused thought a Vigistrate to be a 2 prosecutior witness accused ashed to Police Officer his confess opal statement be supplied with a copy of the witnesses, would not be invalidated on hat account. police statement The magistrate recorded (11 eston J C) KE! KALI 414 an order, "A copy be alloned to the 1935 ) 134, ·175 AJMER LAW DIGEST, 176 CRIMINAL PROCEDURE CODE (1898), S 170 CRIMINAL PROCEDURE CODE (1898), 210 -S 170 S 173 and S 190 (1) (b) and It must be proved that the Local S 344--Remand under S 344 can be Government passed the order sanctioning ordered to thout report under S 173 prosecution It must give an indication as to the acts alleged to have been committed It is not correct to say that a Vagistrate and the dates i hen the offences are sud to can only tal e cognizance on z report sub hue been committed (Weston J. C) mitted under S 173 Under S 190 (1) (b) CROWN v ABDUL SHAKOOR. 1 Viagistrate may take cognizance upon ? 1935 J 80 report in writing of facts which constitute in offence made by a police officer Such -S, 196.-'Sanction-Defect 11-Can report can be made before the investigation not be cured by fresh order is complete 4 report under S 173 need not be sent to the Magistrate at the time the accused is forwarded under $ 170 The order sanctioning prosecution must 53 11 729 Foll (Norman JC) RAM precede the complunt A defect in the SINGH V CROWN. order cannot be cured by a fresh order 1936 J 85 The most satisfactory course is to set aside the proceedings of the Magistrate as held -S 195—"Court'-Not confined to without jurisdiction and to leave the Local court of Justice-Wide meaning-Oath Government to take such further action by 1711material order and fresh compluint as it may be (o) The expression Revenue Court is adused to tahe (IVeston C) CROWN nou here defined but it has been repeatedly V ABDUL SHAKOOR 1935 J 80 ruled by the several High Courts that the word Court in S 195 Cr PC Code does not men Court of Justice and having -S, 202-Statement under cannot form regard to the obvious purpose for which basis of contiction this section was enacted the widest possible menning should be given to the word and Strtements recorded under S 202 can it will include tribunal uthorised to den! not form the basis of 1 comthon (Baker suitha particular matter and empowered; c) Latir HUSSAIN v KAJOR. to receive evidence in that matter in 1J 37 order that a determination may be come 15 C 85,57 C 872, 37 B 365, 38 B. 642 S208--Provisions Al andatory Rel It is immaterial of the evidence is trhen on oath or not 21 1 C 147 Foll (a) The omission to the etidence (1urphy J C) ISHA Buddi v Sien offered by the accused under S 20% of the ALE RASOOL Cr PC is an illegalits (Alurphy JC) 1925 S. 26 GIAVA KVG Evperor 1925 S 33, S 196--Sanchon--Requirement of 'Sanction' 1st be proted-11 191456 S 210-Charge in doubtful cases to indicalc acts and dates be for serious offence ·177 AJMER LAIV DIGEST. 178 CRIMINAL PROCEDURE CODE (1898), S 215 , CRIMINAL PROCEDURE CODE (1898), S 238 In doubtful cases it is better for the It is undesirable that accused persons Vagistrate to leave reduction of the Cantal on bemg brought before the Sessions Court charge to the Court which wul try the < 74e should find themselves required to meet (1V'eston JC) GILAB CRONI charges more serious than those on which 1934 J 136 they have been committed for trial (Il eston). C) GLLAB CROI ---S 215--0mission to sccord defuICC 1934 J. 136 ctidence-Comichon quashed -S 237-II'rong section in Complaint (6) Omission to record defence eklence Conviction ter diferent section of when offered is a point of in and the bad commitment should be guished ? All 177 The essence of complaint is the facts Rel (Murphie J C) GX4V+hI set out 11) it The mention of 1 wrong 1925 S 33 section does not invalidite a private com -S 215 aad S 28-A13 ottence can bc plunt ind there is no reason why 1 different trıcd 63 SCSSIONS court Commitment rule be applied to complaint by an officer under S 117 I PC not illegal ot Government Iconiiction under S 471 IPC on a complaint under S 193 1 PC (6) By virtue ot S 28 of the Cr P is not bid if the conviction is based on the Code any offence under the Indian Penal ficts set out in the complaint, 4 R 131 Code can be tried by the Sessions Court and 1 L 23 Dist (Vorman J C) JAGAT and a commitment for an offence under RAM V. CROWN S 147 IPC is not illegal of the 6 J 35 Magistrate thinks that he cannot dequatels punish the accused 21 192 und 1921 -S 237-Charge for jobbery- Accused Cal 129 Foll (Turphy JC) CRON mag bi coniicted for receiving stolen 1. HAZARI propu ty 1927 S 4 mucharted wth robher anle -S, 221--Abc int by conspac3 — Tunsicted of recen, Stolen properti Charge should name the persons - If 333 Onih 353 T 1926 Lah 132 Nor Foll persons 1101 11 anıcd prosecution cannot (Voiman J.C) TOSHA V KT prote conspiracy tith those persons 1936 J 50 -S 238-Comt ca : contact for whor In so far as the betment824 by ottence in place of major offence conspiracy it is not open to the prosecution to rely on conspiracy with any persons not It is open to L court to const in ned in the charge (Vornan JC) accused ot i minor offence in place of 1 RAV SICI. Crow mayor one (Verplig J. C) Pritar v 1936 ) 65 Chol. -S 226-Chaige belve the Sessions 2 J. 51 Court-Unde stable to alter it to mo -S. 238 and S 537-dot applicable to serions ofence diffa Intences ·179 AJMER LAW DIGEST 180 CRIMINAL PROCEDURE CODE (1893), s 230 CRIMINAL PROCEDURE CODE (1898), 8 256 When a man is charged with one offence S 252 (2) and S 540-agistrate and without altering the charge is convicted has no duty of conducting the prosecut of another offence different in hind the tion-He has discretion to summon conviction is bad 'in law S 537 of the ultnesses Cr PC cannot cure such 1 defect (Norman J C) 4 POOLAR v GAFUR S 252 (3) places no duty upoa a 6 J 51. Vagistrate to conduct the prosecution case and cummoning such witnesses as -S 239-Protasions as to joint trials he may find necessary to fill gips in the 110t applicable to commitment proceedings prosecution, but i diccretion exists to Criminal Courts under S 540 to summon (a) The provisions as to joint trials in sitnesses not called by parties (IV'eston the Criminal Procedure Code do not appls l 1 c) AVAR SIGI V PARTAB SINGH to commitment proceedings (Alurplı) JC) *1935 J. 66 CROWN V HAZARI 1927 S 4 -S 256– Failure to comply with the provisions of Irregularity can be S 239 (d) -Szme Transact1011~No cured charge necessary for all offences committ ed in the transaction Magistrate framed the charge and at once asked the accused if they wished to recall The joinder of charges is covered by the prosecution witnesses for further cross- S 239 (d) Cr PC which provides that examination instead of postponing the persons accused of different offences quesóion to the next hearing Held, Far committed in the course of the same trans lure to follo. strictly the provision of action may be tried together Each the section is ? curable irregularity, 49 A. nccused need not be charged with all the 316 Foll (Tornan JC) ONKAR V Teju. offences committed in the transaction 1936 J 199. The word transaction is construed widely (Aorman] C) RAM SI GK v CRON, Les 256 S 342 and S 537-Omission 1936 J 85 to question the accused further after the further cross cramination of the S 243—Plea of gulty how to be prosecution witnesses-- It is an irregu recorded larity thich is curable unless prejudice has been occasioned to the accused Particularly in cases where an act is an offence only when committed in certain The Court omitted to question the circumstances, it is essential that a ples of accused further after the furtber cross guilty should contain admission not only examination of the prosection witnesses of the act but also of the circumstances Held, the omission is an irregularity under which it was committed (Ieslon which is curable unless prejudice has been J. C) SADIQ ALI V. CROWN occasioned to the accused 46 MI, 449, 49 1934 J 122. | A 551 and 7 R 70 Foll 2 A. M. L. J. 22, ·181 AJMER LAIV DIGEST 182 CRIMINAL PROCEDURE CODE (1898), S 256, CRIMINAL PROCEDURE LODE (1898), S 342 1934 A 1 LJ. 126, 51 C 92,50 B -S 342-Applies to suinmons cases 56 and 15 L 60 Ref (Norria i JC) tried summarily BUDHU V. CROWN 1936 ) 201 Section 3+2 applies even to summons cases tried summarily (Baker j C) -S 256-Requirements of–Bicach PANDIT BINDI LAL v CROWN is prejudice 1} 39 S 256 lays down clearly ti at the -S 342-Non compliance with the accused shall be called to enter upon his prozisions of S 162 or S 342 read defence after the final cross eram nation with S 364 estrates the trial of the Prosecution witnesses Non compliade with the provisions of The probablity of the accused being S 162 Criminal Procedure Code or S 342 prejudiced by breach of the provision of read with S 354 are illegalities which are S 256 Cr PC is so obivious that he is sufficient to vitate the Magistrates Pro not bound to show special pejudice ceedings (IVeston JC) BABU v Crown (Norman JC) DEBI SINGH V CROWN *1934 J 144 1934 J 51 -S 342-Non obseruance-trial S 257–Court bound to compel uitiated defence witnesses to attend Non observance of the provision of Defence witnesses must be called S 312 vit ates trial (Barice JC) Court is bound to compel the attendance HAZARI V CROWN of the defence witnesses (Bakur J C) 2 J 22 LATIF HUSSAIN V KAJOR 1 J 37 S 342-Summolts case-Non exa 11111ation of accused vitiates conviction S 288-Statement as Exidence In a summons case the ommission by If evidence is to be used under S 288 the Magistrates to examine the accused a note should be made on the record as required by S 342 is an irregulanty at the time it is adınitted (Torma: 1C) which vitiates the trial 45 B 672 46 B BHANWAR LAL Y Suraj KALAN 441 and 54 C 286 Foll 46 1 758 Not *6 J2 Followed (IVeston JC) ABDL Aziz V Crou S 342-Applies to summar) sum 1931 J 126 ANONS case -S 312 and S 364-Scope S 3+2 applies to summons case tried A note in the case diary made after summarly, 90 IC 134 Foil (Baker conclusion of the cross examination of JC) Crou! BINODI LAL the prosecution witnesses, that 2 1 39 I did not wish to make any further ·183 AJMER LAW DIGEST. 184 CRIMINAL PROCEDURE CODE (1898) S 342 CRIMINAL PROCEDURE CODE (1898), S 367 ment, is not compliance with S 342 read investigation is complete A report under with S 364 (IVeston J C) BADU V S 173 need not be sent to the Magistrate сгох 3. at the time the accused is forwarded *1934 J 144 under S 170 53 all 729 Foll (Norman JC) RAV SINGHI CRON S 342, S 256 and S 537–Omission to 1936 J 85 question the arcused further after the further cross cxamination of the prosec -S 364-Non compliance with the 1101 witnesscs-It IS an irregularity procisions of S 12 rad with S 364 chich is cirablc tnless prejudice las vitiates the trial buut occasione I to the accused Non compliance with the provisions The Court omitted to question the of S 162 Cr PC or S 342 read will accused further after the further cross IS 364 are illegalities which are sufficient examination of the prosecution witnesses to vitiate the magistrates procdings Huld the Omission is an irregularity (IV ston) C} BABU V CRON V which is curable uoless prejudice has been *1934 J 144 occasioned to the accused 461 449 S 364 abd S 342-Scope 49 A 551 and 7 R 70 Foll 2 AMILJ 22, 1934 A VILJ 126 1C 924 50 B A note in the case diary, made after 56 & 15 L 60 Ref (Norman JC) conclusion of the cross examination of BUDHU V CROWY the prosecution witnesses that accused 1936 J 201 did not suish to make any further state ment is not compliance with S 342 read -S 344—Ruand - lo saol and not with 364 (11 eston J. C) BABU police custody CIOWY *1934 J 144 A renand under S 314 should be to gaol and not to police custody 23 Bom -S 367—Judgment shall contain 32 and 54 Cal 218 Foll (012. Jurcasons RI SINGII CRON 3 1936 J 85. S 367 of Cr PC directs that the Judgment shall contain the reasons for 344 and S 173 and S 190 (1) the decision Disregard of its provisions (b)- Punand la S 311 cm bu oi lire ! mal es a judgment bad in law (Norman uithout report mm S 173 JC) A Poo1 EI v GAIUR Y 6) 51 It is not correct to say that a Magis S 367-Judgment was discuss crailr. trate can only take cogbizance on 1 report tbility of uitnesses submitted under S 173 Uoder S 190 (1) (b) & Vagistrate may take cognizance In a criminal trial the first point to upon a report in kriting of facts which consider is shether the witnesses are speak constitute zo offence made by 7 police ing the truth and the object of riting officer Such report c19 be made before a judgment is to make it clear to the ·185 AJMER LAW DIGEST 186 CRIMINAL PROCEDURE CODE (1893), S 367. CRIMINAL PROCEDURE CODE (1898), S 423 appellate Court that the Vlagistrate has effect of giving birth to n child so that considered such grounds as are brought the balance of her mind is still disturbed, forward for supposing that the witnesses causes the death of such den ly born child are false failure to discuss them deprives she may be found guilty not of murder the Judgment of much of its value but of the lessor offence of pfanticide (Vormanc) RAV SINGI V CROII The Ind an Legislature has not followed 1936 ) 85 the example of England and other Europeau countries in this respect but suitable --S 367 and S 421-Appeal sammarly cases can be dealt with under the powers dismissct-Judgment need not conform conferred by section 101 (\Veston J C) lo S 67 GILAL V CRONI V *1935 J 43 A judgment in conformity with S 367 is not required when an appeal is summa S 421 and S 377.-- Appual summarily rily dismissed under S +?1 Criminal Hisenss. — Judgment illed not conforun Procedure Code, 25 N 331 Foll (Jully to S 167 JC) OLAR LAL Y AVBA DUTTA *4 ) 2 A judgment in conformity with S 367 is not required when an appeal is sumina --S 369-Order oncc passed cannot be rily dismissed under S 421 Criminal relict.cd Procedure Code, 25 1 531 Foll (Jolly JC) ONLAR LAL V AVLA DUTTA. The Criminal Procedure Code does not *4 ) 2 contemplate any review (Turphy J C) KULDA BLIGAFOR KUA -S421 S. 422 and S 423— Appeal- 3J 16 no disposal on p clumnary ponit . S 369-Review-lot permissible (6) The Cr PC does not contemplate the disposal of appeals on preliminary (a) A revicu is not proceeding hrona points If an appual is not disposed of to the Criminal Lar (Purphy) summarily a notice must issue to the other CHITAR MAL I CION side (Purph3 C) Cul al MAL 1927 S 6 CION S 401-Cortions for lease of 1927 5 6 Contacts before the expiry of the sustancc -S 423 (b)-in substituted for S. Notification by CC 1) 17 (J S) imprison ind-Ordnanly non anco 11uut -401-11. smtable casts of mfant. cida suhballet raz bu nduced (1) Substituting a tone for imprison ment does not ordinarily amount to an In Lngland by statule of the year 1922 enhancenient of the sentence (Vurpl - It has been enacted that when a woman c) Surojt RAVs Croll who has pot fully recovered from ·187 AJMER LAV DIGEST 188 CRIMINAL PROCEDURE CODE (1898), S 423 CRIMINAL PROCEDURE CODE(1898), S.496 -S. 423–Substitution of fine-lo An applicant has no legal right to be onhancement heard in support of his application (Norman C) JAGAT RAM : CROWN. The substitution of a sentence of Rs 100 fine in lieu of 25 days rigorous 6 J 35 imprisonment is not an enhancemeat of --S 476- Prosecution should not be sentence (Murphy C) SUJA SINGI ordered unless reasonable prospects of V CROWN conviction-Prosecution not to be refused 1 J 23. bccause conviction not certain ---S. 438-Magistratus order under While prosecution should not be S 234 of Innicip al Regulition-Relision ordered unless there are reasonable pros* lies pects of conviction, the courts should not decline to take action merely because a A Magistrate acting under S 234 of conviction is not certain (Weston JC) the Ajmer Municipalities Regula ion acts NATH MAL V RAM SUKH as a court and a Revision lies against his *1935) 65 order, +1 C 951 Foll 22 A 111, 23 B 446, 1928 Mad 495, 43 B 864, 1927 Sund --S 476-Jotile of Prosecutor not 23 Ref (Norman JC) CROWI AMBA material LAL The motive of applicant in seeking 5) 92. prosecution is not material (IVeston J.C) -S 439 (4)-Order of acquittal NATH MAL V RAM SUKH *1935 J 65 Interference 111 revision1 Jurisdiction of High Court-High Court till interfere -S. 476-Delay-Effect of only on the interest of public justice Delay is a circumstance which should High Court can interfere in revision be taken into consideration, what is undue with an acquittal but should not do so delay will depend upon the circumstances except in the interest of public justice, of the case (Weston JC) NATH MAL 42 Cal 612 45 lad 913 and 53 Boms | RAM SUhH 564 Foll (Norman J C.) ARIF ALI V *1935 J 65 YASI AL1 -S 496, S 497 and S, 498-Or manicu 1936 ) 65 (Ill of 1932)-High court can grant bail --S, 439 (5) Appeal prozidid-No Provisions of section 4 of Ordinance III Rotision of 1932 do not override the provisions of Yo revision lies when an appeal is sections 497 and +98 of the Criminal provided for. (Wurphy J. C) Procedure Code; they merely attract the RAM CHANDRA V. CROIS provisions of section 497 rather than thoso of section +96 The High Court has 1) 5 consequently authority to grant bail S. 440-pplicant has no right to be (Jolly J C) BIURA LAL Y CROUIN. d 5 J. 5.

·160 AJVER LA DIGEST 190 CEIMIKALTFOCEDT RECODE(1909 5303 CRIMISAL PROCEDURE CODE 1898) 5 522 -S 503-"!!! ledert anar that the inn 75 fler stoti ottic 11 Tis 11oduced 1- ett I hectons ulovere cuced Ir-rakhir a barnanna in! Intro: cmnite 1 1 fire Iut the 1 ccrni7 lidto le crimire *** 11 Charles Pins acted had Commis com (CI 75 Ils retson lou cict 175 not 15-12 dite cc 1-rocnrcdler Inic the Court an the find ng 79 evidence on terror 1117 lim 15 ro firdis it nll No cffence #76 comited far $ the There is an ilernt it or utics were concert ! Ill the Varis Inte het Becaurpleie igios In irela no jurisdiction to male an order in the Criminal Procedu Code 1e1111 nl el prorerti when the roperti 3 Var raie 'o ile cilde celsis HIS10: 11 his possession (11 stor JC) Laval Court ('urpis C) hiin SILAV SII PATI. Swarli C1011 1935 J 120 2 1 54 -S 517 Proporls docs 101 alkays —S 512—Lxa i requires onls 311161 follo: posses5109--Real ott ner should not stoffer Sec, Yosification by District Magistrale 2) 26 (N S) (2) It is not an inevitable rule of law that property follors possession. The -S 517-No oficuce prot. l-lo abso true rule is that the real owner should not lute rule that properly be returned to be allowed to suffer (Shamon J. C) persen frosi uliom ii uus all scheda SI O DATT D1000 Lal properly Jound to belons to compliant 5 J 14 ***y be handed over to kus! -S 517 and S 520-Sessions Judge The rule that when no oflence is proved has no jurisdiction under section 520 to tlie propasty must be returned to the retise oriicr mer s 117 person from whom it 115 11ached is not ibcolute The court lourd that the (1) Under section 520 of the Cr PC property belorged to the complaint Held the Sessions Judge has Do jurisdiction to It should be handed over to himn (Torman revise in order rissed upder S 517 of J.C) CHOTT LAI v DALA KRISHAN the same Code by 1 Bench of Magistrates 1936 J 115 42 B 661 and 1924 All 675 Foll (Summon C) Suro DATT V BADOO --S 517_Scope-Properts either 11 LAT custody of Court Horroduced before it 5 J 14 Accused did not count any fence but -S 522-Scope the person under whose orders they acted had done so--That person not before the It is enough of the Criminal force or Court-Magistrate las no jurisdiction to intimidation is used at any stage before pass any or icrs for disposal nf propert:

·191 AJMER LAW DIGEST. 192 AEON CRIMINAL PROCEDURE CODE (1898) S 526 CRIMINAL PROCEDURE CODE (1898) enough if the force or intimidation is used Refusal by the trying Magistrate to any tenant or representatie of the into the question of title does not in ou ner, and the presence of the owner is form cufficient ground for transfer ( not essential 1934 Lal +5+ and A 185 J C) BALA V VATHIA. Dist (Il cston C) RAV NIVAS Y 2 BEHARI LAL 1931 | 124 -S 526 (8)-Procedule for g! a adjournment -S 526-Pecording of virkrant Sec Judicial Commissioners Not cuidemce i hich is likels to cause pre tion judice is sufficient toe arrant a transfer 2 J 58 ( Recording of irrelevant es dence wh ch S 526 (8)-Cout pecifically slilely to cause prejudice to accused is formed-Bound to adjou for 100 sufficient ground to warrant transfer of able time the case (Il estoi j C) BRIJ MINAS DAS V AUDIL HAKIM The trying court is bound to adj 1935 J 63 the case for such a period as will affc reasonable time for the application to -S 526-Magistrates icmark caus made and order to be obtaiced ther ing alam to party-Transfer propei But the court whould be so specific informed (Bakery C) Latir Hus! Iny remark by a trying Magistrate v hajoi causing alarm in the accused s mind is 1 J sufficient to justify tran fer (11 rol 3 J C) MISRI LAI V CHITAR VIAL -S 528 and S 537- District la 1 J 22 toate transferring the case to himse Absence of mutten order y ment ur -S 526-Appellate court conviction and Romanis-ac usct be tricl by another court The City Magistrite r s trying 10 the Distr ct Magistrate tranferred If an appellate court re erses convic case to his file and tried it Heid tion and remands the case, ordinarily the absence of a fitten order of transfe accused should be tried by a court other an irregularity which can be cured u: than which has alrewdy proounced opif1on the section and a fresh trial is unpcess on the merits (Vurphy J C)ATTALII AII (Norman 1 C) RAV SIXG11 Crou: FAX BLVDU KAN 1936 J 3) 18 -537 rei crses lanty --S 526_1 efusal to yo into question of title-No ground for transfer: Scs C: PC-SS 162 238 556 364 and 528 ·103 IVER LAV DIGEST 194 CRIMINAL PROCEDURE CODE (1898 5510 CRIXINAL TRIAL —S 510 and S 22 (2: - Vlopedir Approrer. hox no dulu "SICH Durden of Proof. forn-llchas descris 17 1 Circumstantial Evidence, 11/10 Civil Nature S. 252 (?) na et roduts upon a lasis Confession trale to conduithe ricerution riend Copriction. Summonirs such nirerees ale fir! tet cars to 11 xins intefice ution, Duty of Magistrate tuta disereton (X15 10 Canon! Co its Fvidence Lader S 540 10 $311m0n 11ress not called by partine First loformation Report. SIGI. PI ITU Sri Hony Magistrates 1935 J 66 Identification 1 -S. 556 Vagueral Frarrant material m . (1 should not try case Magistrate Jurisdiction Practico. Procedure 11 a Magistrate relies upon the pre Review sumption created by the warrant issued by Seolence. himself and if in inct the warrant is material in the case the Magistrale h15 Stay. trieda caccin which lielas already 75isted Witnesses the proxecution and sucl proceed non should be et aside Approver. The section is rot a technical DOMISION of law to be ignored it convenience (Weston J.C) VILAL CISN CR011 1935 59. Approver-lindnu of under in the of Pation S, 562-M hat be passe 1 \Vhere evidence is given under induce 11 ent of pardon, the approver is likely to ble evidence incriminating the persons who 110 accused (11.ston / C) RAN SAJAI CION 5 1935 ) 2 o sentence can be passed on ? person to whom benefit of S 562 is given (Baler J.C) ALLA Buxy CRON 1 J 41 Burden of Proof. -Burden of Proof--Not on the -S 565 (3) - AmCnments to portroHS rules I thief is not to prove that he did not See, Notification by CC 1 J 16 () ·195 AJMER LAW DIGEST. 196 CRIMINAL TRIAL (Contd ) Curcumstantial Evidence CRIMINAL TRIAL (Contd) Conviction Circumstantial evidence-Contic Conviction-Defecture of magistrate tion on-IWhen it capable of the only bases it on previous judgment which explanation that accused guilty uas set aside An accused can only be convicted on A Judgment is defective of the magis purely circumstantial evidence when it is trate has based it mainly on his previous such that it can be explained only on the judgment which was set aside (Alurphy supposition that the accused is guilty JC) CHITAR NAL V CROWN If there is another poss ble explanation 3 J 8 the accused must be acquitted (Norman JC) RAM SINGH CROWN -Conviction Illegal-If uitness dis beltered on etidence not recorded 1936 J 85 Cuvil Nature It amounts to an illegality which prejud ces the accused to disbelieve his -Cıvıl Nature defence on the strength of evidence not To take a d spute of a Cıvıl nature to recorded in the case and the conviction a Criminal Court was an abuse of a must be set aside (Murphy J C) Criminal procedure (Norman J C) NANNAH V CROWN 1925 S 31 DEBI DIY V ANANT MAL *1934 J 25 -Conviction Court disbelieres pro Confession secution eridence-But accused admit ted presence as innocent spectators- Also see Cr PC-S 164 No conviction Confession-Retracted to be cor roborated When the court d believes the prose cut on evidence it is not open to it to It is a well established rule of prudence convict an accused merely on the ground that before any reliance is placed upon a that they admitted their presence at the Tetracted confession it should be corro scene as jonocent spectators (Alurphy borrated by other evidence in material J C) SUKHDCO V CROWN particulars (IVeston JC) CROWV v 3) 32 NARAIN 1935 ) 123 Duty of Magistrate Confession-Retracted lust be Also sec Cr PC-S 164 materially corroborated -Duty of Magistrale-To question Il confessions are retracted accused-Conduct of accused suscept it is 30 ordinary rule of prudence to look for il le of erpl malion-accused not asked material corroboration of those copfessions to erpina-ssumption that accused (IVesto i JC)hey haLIANA would liate greu reasonable explana 1934 J 130 11011 ·107 AJMER LA DIGEST. 198 CRIMINAL TRIAL (Cors') Where azt co-dictch the acci sad is flererut'e ci teng-alle ein'ıratıcı ard the accused was to ailed to exsla nit it must-sumed in his for ilalle would tave given a ren grable cip 111 1107. (Termal JC RA SINGII C10W 1935 J 85 CRIMINAL TRIAL (Comid) In sumar) trals particulars of the examination of accused are to be entered by the incitrite not bs a Clerk and in the proceedings not in a dinn. (l'eston CANDIL AXI! PALTI 1. Chou. 1934 J 126. Evidence. Duty of Magistrate-load 1 defenda-To ask ques'son or pressure fron sinesses to shost that they are spealing truth Evidence- Appreciation 14-16 casil burried an ornament Vo proof thint ornament lulong to any particular p017 Appellant was ondefended and dil ro crocs examine the rto esution witherees Ilidt in such a c15 1! Is the dusts cf the 'lagistrate to sh ile prosecution witpeces a lev questions in order 10 satisfy himself that they ne pealing the truth (Vorman JC) LATII SHAH! V CRON . 1936 ) 132 The circumstance that an accused person bur cd an ornament is no proof thietle ornament belonged to any particulat person (IV'eston J C) h. L. v KALIANA. 1934 J. 130. -Evidence- Appreciation of-l'alue of leading cases -Duty of Magistrates-laumini tion of witness lo nuinber of cases leading or otherwise can provide a mechanical substitute for that personal appreciation of evidence which is vital in the administration of justice (ll'eston JC) KALYANA 1934 J 130 - -Evidence-ppreciation of-Un corroborated statement of Police Ofluer Not sufficient It is the duty of the magistrate to cec that the prosecutor puts the proper question to witness and if necessary to supplement them. When no vernacular record is kept the magistrate must record every thing that is said, so long at it is relevant, and should read out each eptence as he records it Opless counsel know what has been recorded they cannot examire and cross examine intelligently (Norman J. C.) Tou GEORGL y. CROIX *1934 J 47 To accept uncorroborated statement of police officer, as sufficient to prove possession would cbviously create a most dangerous precedent for it would do away with the necessity for any independent evidence and leave the way open to the police to implicate any person agnost whom their suspicion had been directed, (Jolly JC) NATHIA V Crowy. *5 1. 3 (1) -Duty of Magistrate--Summary Irial--Recording examination of ac cirsed:

·199 AJMER LAW DIGEST. 200 CRIMINAL TRIAL (Contd ) -Evidence-Appreciation of-Cre dıbılıtı of uitnesses--Tests CRIMINAL TRIAL (Contd ) time of search and read by him at that (IVeston C) K. E. v. MOHAM VAD BU *1935 ). 41. time First loformation Report -First information substantire ctidence report-Not (n) As a general rule a sign of truth when everal witnesses testify on the some point is their agreement as to all matei nl facts with discrepancies between them on minor points and also that con cocted evidence can sometimes be detected by the fact that it is all too consistent ind lacks the small variations to be found in average evidence and which are due to varying power of observation and memory of different angles of view and also some allowance must be made for rusticity (Murphy J.C) RA CHAND v Crow 1927 S 47. First information report is not sub stantive evidence Accused cannot be sentenced on statement made therein and not repeated at the trial (Norman I c.) LATII SHAH V CROWN. 1936 ). 132 Hony' Magistrates, -Hony' Magistrates. Their pouars -Evidence-Of Informer-To be regarded with caution Sec, Notification by C.C 1 J 12 (J S) Informer s evidence is to be regarded with caution whether his action has been prompted by revenge or by the more usual motive of reward (IVeston JC) MILAP CHAND V CROW. 1935 ) 59 -Hony' Magistrates-Rules for the guidance of benches of Hony' Magistrates Suc, DM's Notification. I J 10 (). S) ---Evidence--- Proof of search Identification. must It is not enough for persons who have Identification-Magistrate been present at searches by the Police to frame proper questions and not asẢ come into the witness box and state that sucrally "Do you identify the accused" list, prepared at the search bear their Signatures These lists generally are not The question, 'Do you identify the substantine evidence The prosecution accused' is an improper one. It is for should elicit from the witness his personal the Police to inform the Magistrate what account as to what happened at the cerch the witness is supposed to have seen and and what was found If his memory is if they do not do so it is the duty of the defective as to hat exactly was found Vagistrate to find out and then to framo hc may be allowed to refresh it under proper questions (Norman J.C) BIJJA S, 159 of the Evidence Act by reference | CRON to any list made in his presence at the 1936 J. 205 ·201 VER LIW DIGEST. 202 CRIMISAL TRIAL ( Lt) -Identification - 1 de cortain 1 CRIMINAL TRIAL (Conti) Practice -Practice-Lory Workestrale Citro1 is hoftult for the District lands Tilaillaller ist 111 1170717-cresc) is not bronn ct 1610 18 11 Antonifresses his --' calining as the cfle der ist alateli certa Tienere la ! ! ! the irradr the round 75 7!) reli) ( chat and cıp cl 19 rural mitein 15 of card fc failure to Jezi is hun if ireses ind ch ersed the acused -tly well lleucht) Ilu LILI. CII 6) 2 11 pere le ? Fractice that when ? ca e has not riched the stage of evidence the ti ustrate acts as a substitute for ile 199! Commissioner of the latter is on tour icre is no lesil narrant for such practice and it mult CC14e. (Taman !! RAH SINGIL С от 3 1936 J 85 Idearification-0), liela 1 1 Practice-l'orecchionns o perjury who nld not dirndl the final pronouncement opp linha conta Iersons who have iurn for a consider able time garments or ornaments of ordinary make which berr no 5601 marks of identification, ler often are able to deptify them satisfactorily by reason of the familiarity of long associa tion hich often they are not able to describe in terms of peciul or disting uching maits (lliston JC) L KALYANA 1934 J 130. Jurisdiction - Jurisdiction-Chart of Su 1935 J 7 (NS) —Jurisdiction-Objection to can be talu. at any time-louarter I're secutions for rerjury should not au all the final pronouncements cf Appellate courts on the merits of the suit in which the contements were made The delny is unfair to the accused who after several years find themselves called upon to answer a chube If there is I reasonably strong case courts should be prompt to take action Il accured persons corsider it in their interests to obtain postponement of their cases pending an aprellate pronouncement on the 11 erils of the ori nal sut it is onen to them to seek it (lleston jo hua LAIKIUA LAI 1935 ) 7 --Practice -Rap-Change not lodgedl Ightly bout #sily made--Difficull 10 1efale--llaght to be attached to chavac (b) Objection on the score of jurisdic tion can be made at any time and need pot necessarily be made at the earliest opportunity and it canpot be given up by walter (Barlee j c) Dirt MIKIAN V Crous 1927 S. 1 (a) It is a well I nown fact and bas often been noticed judicially, that rare is of all false charges the one most easily made and for an innocent accused, the one most difficult to refute and it is known, ·203 AJDER LAW DIGEST. 204 can CRIMINAL TRIAL (Contd) CRIMINAL TRIAL (Contd ) that such charges are often falsely made should call him and examine. (Alurphy for the most trual motives though prime ). C) ABDUL GHANI V Crowa. facie it would seem that they would not 2J 47 be lodged lightly, owing to the disgrace -Procedure-Non compliance which having been the victim of such an the provisions of S 342 or S 162 read offence generally entails with s. 364 vitrates the trial (6) Very great weight is consequently Non compliance with the provisions attached in such cases to the character of S. 162 Crunibal Procedure Code or of the prosecutrix and where she is a grown S 312 read with S 364 are illegalities up woman and no physical signs of which are sufficient to vitiate the Magis the actual rape be expected from trates Proceedings (Weston J.C) BABU the medical evidence, to any marks of V CROWN. injury on her person and to the general *1934 J. 144 probabilities of the cases to be deduced from the reputation of the prosecutrix. Review. (Murphy J C.) KAMNU V CROWN Review. 1925 S. 39 See, Cr. P. C.-S 369. Procedure, Sentence. --Procedure-Defamation, offenceof- Should not be tried by Honorary Alugts. -Sentence-Fine-No point in inflic trafes tung fine seuless some prospect of accused being able to pay it The offence of defamation is a highly technical branch of law and it is not There is no point in inflicting a fine in addition to a hear y sentence of imprison possible for a Beach of Honorary Magis trates to properly appreciate the many ment unless there is some prospect of the accused being able to pay it (Norman potentialities in it for the defence or the J.C) BIJJA V. CROWN prosecution Such a cace therefore should 1936 J. 205 not be allowed to be tried by a Bench of Honorary dlagistrates (Shannon J C) -Sentence-Groter offence includes FATEN CHAND 1. JETUVAI. Iesser 3J 72 Procedure - Vedical cvidence-Pro- (a) The greater offence includes the seculon sliould producc thc Doctorlesser und a person accused of an assault on rarlıg that the court should call the a public servant cannot be convicted also of an offence of obstructing a public servant Doctor. in the discharge of his public functions As a matter of course the prosecution A mere flight of the accused is not such an should call and examine the Doctor who obstruction (Barlec J. C.) DuLvI KHAN first examined and trezted the injured CRON. Iersons and if it refuses to do so the court 1927 S 1 ·205 AMER LAW DIGEST. 206 sionin ווין 1 CRIMINAL TRIAL (Cnsla!) COSTOM, Seolence - Pir roue rolit reino- (a) Tiere is no Section in the CPC Inrro 6: Onderrimierern iming cull unter *11) Criminal 1'71cdn ru le Crane ne 10€ -- But wy he conserci in 10 till there isnt (hunt In the pritis Vuralis J. C.) 1 BA (c) itinuranting unicre 1925 S 29 1) 1,715 + the 'vir: 1 Witnesses 17 451 lat ! COIN Craya Ipo tricm1111 is the -Witacsics- Det mons-lo prots Umum of But (Brico J.C) Dil vi h14 Call 1927 S 1 Ilete pre IO DY H115 116 in the Criminal I'raduro ( xele auth risine Vagistrite Sentence-utruso id colunut 1 certain sum is empreses ditt 19 1litness Tir l'en119 of inny! stes 4437857TtuRed X Porn ind til Jells JC) Calm 171 frame and of punishment ALUMI\001 VOLARE cel ! cue! ! fien es ind *3] 4 1 side discretion is to the punishment to IX CIC" is 1xed In eicHCS this dis cretion a criminal court should consulet the nature of the offenceCOinmitted the circum CRIMINAL TRIBES ACT (VI OF 1024) <tances under which it was committed --S 20-Rules the probalulity or improbability that it is en 1 isolated act committed without prenie Sa CCs Notification ditation and the general rules 2 J. 27 (N. S.) ind position of the cused in relate the offence he has committed (llstone) KE. V MOHAMAD BI CUSTOM *.935 ) 41 - Sentials Sentence-Traffic COCA I commercial usige or custom must Deterrent to be ancient ini unable continuous, notorious not expressly forbidden by the cocaine with its terrible legislature indl not opposed to morality or results in creating drug addicts should be dealt with ly deterrent sentences in ippro public polici Malm J.C) ANDA LAL v Stras War. priate cases (ll'eston J C) KI * 5J 1 (II) MOHAMMAD Bt alias IVATADAR *1935 ) 41. -I'ssentials of Must be shown to be of immemorial Stay. existence, certain and invariable (Jolly -S'ay-Criminal proceedings cannot J. C.) NATITU v. RAJA RANCHIOD SEN. be staged till decision of Civil suit 4 J. 108. 111 Traſh in v.

·207 AJMER LAW DIGEST. 208 10 CUSTOM (Contd ) CUSTOM Contd ) Adoptioll along Ilahmedans C coming to Beaut nr mude several Strict proof purchases in accordance with the above custom using the form of S and VI as his (e) Idoption is 1 practice unknown to arath On lezung Bean ar, he sent S and Vohammadan L2 Any custom by which M 1 panri, in which all his purchases It is recognised among 7 particular class of except the last and largest under sluch he Vahammedins should be strictly proved had then no delivery and had made no (Jolly JC) BASHIR 4 V Vst payment, were entered On application by RAHVAT III 4111 the vendors in the list transaction to S and 4) 44 V is guarantors of C to nizke good the --Gota Worbers-Ma cmployee of purchase money, they at first refused on orkmall lot limble for latteiss liablity the ground that the transaction was not to oll employce entered in the panni sent to them, but after wards they consented to pay the vendors 1 here is Custom imongst bota the amount of the loss occasioned by Cs vorhers of Ajmer by which is whman failure to pay and tal e delners who takes nen emploi ment continues In ? suit by S and M against C to liable for any money that may still be on ng recover the amount so paid trom lum to hs old employee and at the same time the new emplover also becomes Held, that if the pluntiffs were cogni linble for that money to the old employer zint of and allowed their name to be used in the last transaction either jointly or severally with the workman as was shoun to (Mackie () AVIA LAI SUR U MAL have been the case in previous transactions 5) 1 (11) they were 1ccording to the custom Table to the vendors and consequently entitled -Mercantile usage-Bır'ang to recover user froni the defendunt what thes had paid and that even if there x 75 Varhet customis binding on the centers 10 actual authority grien at the time of the n that marlet C121 Ref (Barlec JC, FIRV RAVJI DIS RAGI SATH y FIRU transaction still as the defendunt had used the name of the pluntiffs as his guarantor TIRIA RAV MET RAV and had held them out as liable to pay on 2 1.25 his behalf for the goods he purchased the Mercantile usage -- Payments 63 Here thereby ruthorized if they thought 1rhatias in Bea ar 1st, to mhe the subsequent payment which they did on behalf of the defendunt or (in 1, 1 custom of Berkar, 7 merchant other words), to ratify the use which the coming there from mnother district is clefendant had mue of their name and allowed to trade Onls in the nine and on Here not deprived of their rigit to do so by the credit of some local arathi or binhing their living for a time repudrted liabilita firm which guarantees his derlings and (Sir ur smili, Sir R P Collier ami to wluch on the conclusion of transactions Sur IIS katung/S SAVUR MUIT 1 ranr, or memorandum thereof is sent CHOGA LALI In the stranger inerchant 5 C. 421.

·200 IJVER LI DIGEST. 210 DECREE DAMAGES Sec, Tett-Patrice Sec, Evidence act-S 102 Thala Baqı-11 lethar smit lors on of I tmt on ict-S 19 DANGEROUS DRUGS ACT (IX OF 1930) Deterrent sentence Trar. 10 Cocaire t's terrilie DECREE reits 17 celins dit acts stoldtdealt with bs de erreat sense CS Ariro --Ambiguous-Retic proper remods 13'e cures (il cston jah When the meaning of the decree is 1014A BLI. doubtful review is proper remedy *193541 (vor tau (1 for AN LAU • BILLS CLASư ----S 14--Sule of such siell until 1934 J 30 of roc 1110 11t it can dilautail onls Compromise. Sic-'CPC-0 23 qualitatstils-lo offrire A Chem al trace of Cocu ne is Conditional Becoming final-Trial quantiti su stall ulat it cannot be court ( not extent 11-Retrw is tatiely estimated its prener ce only be ng Aros CF Icly detected by qual tine tesis Salc of such a substance cannot be called a When a conditionnl decree becomes final sale of Cocaine (Voils JC LACK on the fullure of the judgment debtor to ВЕС у Ско comply with its terms it is incapable of 1925 S 30 belt varied by the original court except by means of Review, 30 a 552 Rel (Surly JC) MST VATUI V JAGRUP DEBTOB AND CREDITOR 1927 S, 22 -Khata Executed— It contaının ! --Damages - Order auarding slama item of interest-It is not recessary to tus under s 9 CPC-Need not prote contract to pay interest form part of lecree When a party has executed i Isbata in which there is an item of interest it 16 DOf Decessary for the plaintiff to bring independent evidence of 1 contract to pay interest, (Norman JC) MANGI LAL V BASANTI RAM. 1934 J 1 (c) Under the new CPC it is not necessary that the order awarding damages under S 95 CPC should form part of the decree 17 YLI 310 Not Appl (Bulcr C) FVC KANKARIA 6 Co v MIONAMMED HUSAIN 1925 S. 17 -Easement-forin of ---Khata-Execution Admited- Bur ilen of Proof Sce, 'I asement-Decree' ·215 AJMER LAW DIGEST. 216 EASEMENTS ACT (1882), S 33 EVIDENCE ACT (1872), S. 19. (2) Every person has a right to add to of eagress of foul air, when doors are or build his own premises provided he closed, the proper relief will be by way of does so without material invasion of the injunction. (Murphy J C) S. DHUL right of his peighbours CHAND V GOPI LAL. 2 ). 73. (3) In order to justify the grant of an injunction the threatei ed disturbance must interfere materially with comfort of the Owner An injunction cannot be granted ENCROACHMENT against disturbance of any sort without proof of subtantial damage See, Tort-Encroachment, (4) The test is laid down by S 33 of of the Easements Act and is the same as in other places where the Lacements Act EVIDENCE ACT (I OF 1872). is not in forre. 42 C 46 P C. Dis. (5) In such a case the court is entitled -S. 18-Offer to accept so aller sim to take into consideration its own opinion by ury of compromise is not admission formed on personal Inspection of the sile as to amount dhe and base its decision on it (Jolly JC) (al (Vhere a person offers to accept a KAN MAL V ASA NAND smaller amount as a matter of compromise, 4 J. 84 that offer is not an admission as to the proper amount due to him, (Lords Tomlari, -S 33 – Diminutio. of tentilating Russell and Str Lancelot Sanderson) power by solid construction CHANDI IKA PRASAD V. B B. & C. l. Ry The veutilating powers of the apertures AIR. 1935 P. C. 59-1935 OWN. are seriously diminished by the ex stence 379=1935 A W.R, 459=1935 R. D 165= of solid structures between them Con 1935 All LR 345 61 CLJ 147-39 struction may be said not always to coopote CWN 552-68 M.L ). 552 =41 M.L W. obstruction, but clearly as regards sentila 617-1933M W N 434-1935 OLR 249 = tion construction immediately at the side 154 1 C 945=37 BLR, 39037 P. L.R of an aperture must produce obstruction 33116 U.U. 221 16 L,R A. (Rev) 250 (Weston J C) KAS MAL Y. ASA NAAD. 1934 ) 113 S 19-Admission of liability by principal against surety after tcrmina ---S 35 --- Il'heit injunction or damages -- t1on is relevant though not conclusite 11"nous An admission of a principal does not Whether relief in such cases, should cease to be relevant against the surety be by way of injunction, or by the grant becnuse it was made after termination of of damages, is a matter of the Courts the transaction for which the surely had discretion. But when the windows pro bound himself But such admissions are posed to be closed up are the only means not necessarily conclusive, 5 A.L). 142 ·217 VICR LAW DIGEST 218 S EVIDENCE ACT (1872) S 21 EVIDENCE ACT (1872) S 30 Dus 11C 07 Foll (lorer 79 C) (5) The principle underlying section B411 LAL his 27 16 thu the actual discoser) of 1 fact 1934 ) 10 is in itself maternal gurantee of the truth of the particular information which S 21 & S 115 17 Jason natin led toile discover ir a len: $ 11cm (n! (in . riting) is () Such 1 statement alone not ret11 111ci! its big tit 10 11 trois-1 It will at little cilden sulúcient to support i conviction (Jolly IC) BALL v CRIS CHITEC 4 J 100 An adminifteiclint #lether or ----S 30-Corroboration Iccess 119 moitis- toite party mal rait lore the less 11 15 nomurd rule of pract ce to (a) The ordinary rule of caution is pu all ad scns to the parties i lomide that to form the biss of a conuction them if they scende e ard failure to s me co roboration of such a statement do though iw !1 rot male the admiss ons is necessity 2)191 Not Foll (Vur irrelevant * 11 frentely merken ther My JC Sancı has v CIOW, force 9 B:1 1990 Lal 6), and 1931 1925 S 35 Lal 753 Distinguished (loria :) C) -S 30-Unicorroborated confession of BIRDHA Y SLRAJ VAL 1936 ) 23 co accusci--Aol sufficicnt for con Hichon -S 27-Score A man cannot be convicted on the Sect on 27 makes admissible only state uncorroborated confession of conccused ments by an Tcused to the police as 1 Tle confess on of one co accused can consequence of sh ch facts are discovered not be corroborated by the confession of This does not mean that any statements another accused 38 B 1-6 Foll (Norman made by an accused antecedent to d covery JCI MISRI LAL v CROUV are adm ss ble (11 ston JC) RAM *1934 J 49 SARU CROWN 1935 | 32 -S 30--Tuo accuse! tried jointly-- Onc pleaded guilty unit as corticled --S 27-Scope-fract tor Is 11C The trial proceeded against the otl cr-- cessary-Sich state ie it alone insteffi Tic staten sent made by the former cient for contichon ac reset cannot be considered against Titles (a) In order to decide whether a statement is admissible under S 27 it is I and A tr ed jo ntly After charge necessary to know the exact words used was formed L at once pleaded guilty and otherwise it s d fficult to know whether was convicted and sentenced on her own the alleged d scovery of fact was made plea A pleaded not guilty and his trial in consequence of the information 80 continued Held the statement of L conveyed made before ber conviction could not ·219 AJMER LAIV DIGEST. 220 many months EVIDENCE ACT (1872), S 30. EVIDENCE ACT (1872), S 54. considered against A since on her con There is no rule of law that the enr. viction the trial cersed to be a joint one dence of a party or his servant capnot be (Norman J C) ALBERT V CROWN sufficient corroborition of regular accounts 1936 | 203. In cases where it is possible to get S 30 - Confession of co accused- | independant evidence, an inference adverse it'cight to be attached to a party may legitimately be drawn of he fails to produce it (Yorma j.c) The section provides that a court may MANGI LAL 1. MST. HUSAINI. tahe into consideration against an accused 1934 J 31. person 1 contession made by a coaccused person The words 'may take into consi ---S 34-General cudince of plaintiff deration serve to e nphasise the fact that may be sufficient corroboration such confessions stand in a category by The evidence of the plaintiff alone mas themselves and do not stand on the same be in lan sufficient corroboration of regufooting as evidence in the case Such larly kept accounts confe.sons are not stitements in de on A party cipnot be oath and the accused against whom they expected to remember all the details of an may be taken into consideration has no account extending over All he can say is that the transaction opportunity to cross-examine the person ! making the confession took place and that they were entered in It is obvious therefore that the weight to be attached the accounts. Thus the general evidence to such confessions as against a co accused of a party that the transaction embodied is something less than the height which in the accounts really took place may be corroboration might he attached to the evidence of an (Norman J. C) ARBAS F Brvi GoPAI NARAIV DAS approver (Jolly JC) NATH SINGH i 1934 ) 7. CRON 4 J. 72 --S 51- Pretions contictron-Not --S, 34-Chlt andres-An etidence to be consistereil in determining gult or of as it to appropriate INHOccncc-But may be consider in Cutries in the books of a creditor may (Tuarding sentence be tal en 7s indicatie of agreement to a proposed appropriation by the debror (c) It is not illegal in an arding sen tence to tahe inlo consideration the (Lord, Dunalul and Shau, Sir John Liige and Mr mr 17RB. SLTIIVI character of an accused as shown by his CHANDS RADIA LISCI. previous consictions into consideration in ILR. 48 C. €39-61 1 C 904 determining the question of guilt or inocence (Barlse J C.) DIT VISITAS =AIR. 1922 P C. 26-30 M, L,T 39 Cros . 26 C W. N 153 = 14 M L W. 391 1927 S. 1 1921 M 1 N 411. ALI 1 -S 34-latis sacrent corrobora bront of resular account/s. --S. 54-lagistrate shonld neither clicit nor record atidence of bad character ·21 IVER LI DIGEST 222 IVIDCSCE ACT (16721 S CS ITIDESCE ACT (1872) S 92. The 11.retriitor! Vos te le to? ITO CIC TIIN 117 15 de sile for is flir ency r -!1111 11. Ilant did not mention ir Ite cu finnclas c Irrte of itin atlet 1 Independerils cf Tie ITO 10 Ilienii ce la Il non si 1 rional sud 1935 | 63 . te 14 וי ----S 6-1) 15 19 Clarite repurelt of 11 11 } > lowed Fol. 11 I) Not For (hth 1311 V + - 61 be ۱۱۱ ۱۱ ار) 1936 J 37 IS -S 91 + 1014 1 ba: tole IC Jite ICACI11 nec f 711. de eo Miess mus. if aire tym ca ied 10 atletih mitress is callct the document 16 not pro.ed (lorman J. C) DALLA NATH 1 GAISI VAL 1936 1 54 ( 1 ) bulan 1-Oral alichot Lille opirt 1 1 Duit !!!! 1-P1 1 Terr 74-1). 21 cord-Cutter withon! piul !! Blo Sui founded on 1 contract contubed Jutun stered Q bult for more than a 11.11 the las of exide ce prevents opil erweice of that coutract being given Side 1 lence incides ! Qabulint and the Qabulint was for more than one year, the Olmat Contot be pioiel except IS evidence of pisterformirce of contrict Ir the purpose fcecl on 53 of the Irisles of Properts Tel!' 291 Foll (lorone C VE DIN III SSAN LAJI +1936 ) 213 Certified copies of the entries of 1 pubic record are admissible without the eviden e of the ressous bo origually made them 1 Foll (1untlig JC P SAHAIRI PARSIIAD Y AJANJA IIK PII SIIAD) 2 J 55 11s 1101 -S 92-wakil til bond to be fui 11 us bulby melical SuitCCS -Pfaunot be und S 91-llons lurt 01 Prostory 1101c--PromisSOL Y toit tila massible for insufficiency stamp-loan can bc Groted orally inspite of the 110119SOL Y notc Sut 125 01) bonel Delence 75 that the bond was not to be paid in oish bi Ljy medical servicts to be rendicrud ·223 AJMER LAW DIGEST. 224 EVIDENCE ACT (1872) S 92 EVIDENCE ACT (1872) S 102 It was a term of the contract that payment Where a plaintiff claims a sum of money should be made in cash To set up a case and admits that certain payments have that payment was to be made by services been made which in themselves would be was to set up a different contract Such a sufficient to satisfy the debt in suit the defence was barred (Norman y C) SHEO burden is clearly upon plaintiff to show NARAIV V UVAID SINGH JI that such payments had been properly 1936 J 107 appropriated to other debts and were not in satisfaction of the debt in suit (Jolly S 92-Oral cridence admissible to i c) RAVA v RADHAI LAL show that party signed for self as well as *5) 2 (1) others The character in which a party signs a --S 102--Consider it1011-Plaintiff ad mts that bond partly for cash and partly contract is not n term of the contract and section 92 of the Evidence Act is no bar to un lieu of two former bonds-Burden ont extraneous evidence being led that a person plaintif signing a contract signed on behalf of others as well as himself (Norman ) c) FIRY Suit on bond Bond and plaint recited OTAR MAL CHATAR BHUJ V FIRY SURAT that it was for cash Defendant urged that RAY POONAM CHAND it was for the balance of money due on? *5 J 1 (III) mortgage Held, onus of proving this assertion was on defendant But in his -S 102-Adjustment of decree by evidence plaintiff admitted that bond was executory contract-Heavy burden partly for cash and partis in lieu of two former bonds which were returned Heid When a judgment debtor asks a court also, this threw the burden of proung con in the face of a denial by the decree holder sideration on the plaintiff (Norman ) C) to hold that the latter has agreed to subs MADHU V SARDAR MAL titute for his decree an oral agreement *1936 J 216 to deliver some property when admittedly no properts has as yet been delivered the -S 102-Consideration-Bond execut burden of proof is hemsily upon him to ed by guardi 1 of a minor - Consilcration prove the agreement and that the decree past debt of the minor s fallier-Creditor has in fact been adjusted The burden of must prorc that consideration goo ! proof upon the judgment debtor would not be discharged by evidence of talk of Ilhen 1 bond is execute l by the natural compromise or by proof of the terms which guardian of n minor and the consideration the judgment debtor x7s putting forward for it is past debts duc by the mi nors to secure such a compromise (Weston rather the cred tor must prove affirmately JC) MALA Y JAVAVA that the consideration for the bond was 1935 J 97 good 1 e that the debts in leu of which it was erecuted were not time barred -- 102—Appropriation by plaintif- (normauj C) CHAVDAN MAr v JITHA Bundell on Mint 1934 J 68.

·225 AMER LAV DIGEST. 226 EVIDENCE ACT (1572), S 102, EFIDENCE ACT (1872), S 110. S 102-Cor Jeration of asrat (a) When cuecution of a hinta Pain: 4 nimitting-Brionisslisted 1L2 is amittal or proved the burd pite la recenserler ilson rions of non receipt of consideration on the defendant unler S 101 10 Though LC 1 of te of the Indian I udence Act, IR \rrin! im Inn i let the Cal 1r B an 1,37 All 71 Foll (G fre."1979 t! at torose it for con JC) HAMI BANYA derat in 27d the Juden ! ismi les 1926 on plant pour le lich rf 11 S 102. Valicious Prosecutionet "en thr p!2107 h misrif 16 71miled om Paintsil that cond-70 175 not 15 fecital ili mnie tot.si len is a fra 10 te Onus of prouing sint of reaso1 pla rutto pose hallations 12.159 in 1 prolul le cause is on the plai Foll (Jolly J. CI S. SCOTT SHO (Hurghs j c) S. ADDI RAIVA ARAIN DIAR BL **] 3 3] S 102-Ounership-On persona S 102-Custort of Precophon - Onus on planeta for outcrslun (1) (a) A person who alleges that The burden of proxing 1 Custom of pre perty conveyed to another belongs to emption in the Subdivis on in which the must prove his allegation and pro 69 I C 67 property is asflate lins upon the piunt:fi beyond reasonable doubt LJ 23 Foll (Shannon ) (Jolly I c) 1926 P c. 77 Rel Audit BASJIIK MST BISVILLANI I QADAR BLIV ADLI HALIP 4 J 81. -S 106-1 act ustimo special lnou! S 102.Iidcrary relaation-Con of a person-Burlen of proof on lim tract prima faca tonconscionable Burlent ont ilominant parly Wien 1 fnct is within the special h: ledge of a party the burden of proving fict lies upon lum (Aortant Where 1 person who is in 7 position to AVOLAK CHAND V RAV NATH! damınate the will of another enters into NARAI contract vith lim ind the contract 1936 J appears to be unconscionable the burden --S 110-Burden of proof lies on the former to show that the contract was not induced by undue influence l'ossession nieans possession (hormian J.CH HAHAR HAL Y MATHI reasonable period and what is rerson *5 J 2 (III) period will depend on the character of property (Vorman ) c) HARI DA! 53 ·223 AJMER LAW DIGEST. 224 EVIDENCE ACT (1872), S 92 EVIDENCE ACT (1872) S. 102 it was a term of the contract that payment Where a plaintiff claims a sum of money should be made in cash To set up a case and admits that certain payments have that payment was to be made by services been made which in themselves would be was to set up a different contract Such a sufficient to satisfy the debt in suit the defence was barred (Norman J C.) SHEO burden is clearly upon plaintiff to show NARAIV V UVAID SINGH JI. that such payments hd been properly 1936 J 107. appropriated to other debts and were not in satisfaction of the debt in suit (Jolly S92-Oral cvidence admissible to J.C) RAVA V RADHAI LAL. show that party signed for self as well as *5 ) 2 (1) others The character in which a party signs a -S 102--Consideration-Plautiff ad. mits that bond partly for cash and partly contract is not a term of the contract and section 92 of the Evidence Act is no bar to in lieu of two former bonds-Burden on extraneous evidence being led that a person plaintif signing a contract signed on behalf of others Suit on bond as well as himself (Norman J.C) FIRM Bond and plaint recited OTAR MAL CHATAR BHUJ v. FIRM SURAT that it was for cash Defendant urged that RAM POONAM CHAND. at was for the balance of money due on a *5 J. 1 (III) mortgage Held, onus of proving this assertion was on defendant -S. 102-Adjustment of decree by esidence plaintiff admitted that bond was cxccutory contract-Heavy burden partly for cash and partly in lieu of two former bonds which were returned Heid When a judgment debtor asks a court also, this threw the burden of proving con in the face of a denial by the decree holder sideration on the plaintiff (Norman).c) to hold that the latter has agreed to subs MADIIU V SARDAR MAL. titute for his decree an oral agreement *1936 J. 216 to delner some property when admittedly no property has as yet been delivered, the -S. 102-Consideration--Bond execute burden of proof is heavily upon him to ed by guard'ı nof a minor - Consideration prove the agreement and that the decree past debt of the minor's father-Creditor his in fact been adjusted The burden of must prote that consideration good proof upon the judgment debtor would not be discharged by evidence of tall of When a bond is executed by the natural compromise or by proof of the terms which guardian of a minor and the consterntion the judgment debtor was putting forward for it is past debts due by the minor to secure such a compronuise (Il'eston father the creditor must prove affirmatively J.C.) MALAS. JAWATA, that the consideration for the bond was 1935 J. 97. good, i e. that the debts in lieu of luch it was executed were not time barred - 3. 102- ippropriation by plantit (Norman J.C.) CILANDAN PIAL V. JETIJA Burden on open 1934 ) 68. But in his ·225 .JJVER LAIV DIGEST. 226 EVIDENCE ACT (1572 S 102 ---S 1024orsiralien-lo arrecot ra Panartir-riors siified cylin toric ritrat ESIDENCE ACT (1872), S 110, (a) When osecution of a hinta Baht Iliqi is dmittal or proved the burden of pouf ! ron receipt of consideration lics on the defendunt tinder S 101 and 102 the Indian lirience Act, I.R 1925 Cai 71r Band 37 All 71 Foll (Baker JC) WANAI BANA 1926 S 4 1 <for fixf les inlilen 1 - S 102 - Valicious Prosecution--O11s ict my panlipurl! 1 s nimiin! on Plaints 17 the con cit mais ni 14 recite! 1911prono il rientifini 11 Ons of proving unnt of reasonable Dat 101 el alexi! an! prolalle cus is on the plainti Foll (Joly 1 CSS IT 1 SHIO) (urtis J C) S ADDLI RAHVAN ARAIN DITAR BLI. .) 3 3) 35 --S 102-Ounership-On person allega S 102-C sto of Preemption – Ing Ounership Onus on flamin (1) (a) person who illeges that pro The burden of proving a custom of pre perts conseyed to another belongs to him must prose fuis allegation and prove it tp on in tlc Sul, division in which the property is strate les upon il e plintiff Leyond reasonable doubst, 691 C 67 and (Shannon ) C) 6 111 1 23 Foll (Jolly I c) 1926 P. C 77 Rel AUDU BASIN 1 MST BISMILLAU BIBI. QADAR BLYv 1 DLL HADIS 4 J 81 5 J 36 ----S 106-I act usthin special knou ledge S. 102-1: lucirry relaation-Con of a person-Burion of proof on how track prima fac a I11COITScionable Ille! 1 ftct is within the special I now Burlon on dos ninant party ledge of 1 party the burden of proving that fict lies upon him (Norman JC) Where 1 prorson who is in a posit on to AVOLAS CHANN V RAV NATH RAM dominate the wall of another enters into NARAIN a contract with him and the contract 1936 J 104 appears to be unconscional le te burden S 110--Bundent of proof lies on the former to slios t1 at the contract was not induced by undue influence Possession means "possession for (Norman) C) JAHAHAR MAL Y NATHI rensonable period and what is reasonable *5 / 2 (III) period will depend on the character of the property (Norman C) HARI DAS v. -S 102-Khata Bagi--Crecution ad MUNICIPAL COMMITTEE, AJMER mitled-Burden on Defendant 1934 J. 6 ·227 AJMER LAW DIGEST. 228 EVIDENCE ACT (1872), s 110 EVIDENCE ACT (1872), s. 116. -S 110-Redemption suit-Plaintiff In exceptional cases a court may be must show prima facie subsisting title justified in contacting on uncorroborated accomplice evidence But such accomplice (3) In a suit for possession of land by evidence must be of a kind which a Alagis redemption of a mortgage the plaintiff is trate after very careful scrutiny with the bound to show prima facie that ne has In present in his mind, can sustain in a title subsisting at the date of the suit, holding trustworthy inspite of the usual 11 A 438 Foll. (Broomfield I c) GHISA restrictive rule 35 MI. 247 and 397 Rel. LAL V. SUJAN MAL The mere absence of a proved motive 5 J 21 for giung false evidence cannot be regarded as a good reuson for relying on the evidence S 150-Mortgage entered in settle of accomplices (Broomfield J. C.) ment Register--No proof of prima facie SIRAVDEK AII v. Parpu. 5 J 17. (3) The mention of a mortgage in the -S, 115--Representation under mis settlement Register cannot be regarded take of fact-No Estoppel. as prima facie proof that the mortgage is still subsisting, 42 A 575 Foll. (Broomfield (6) A representation made under a mis J.C) GHISA LAL v SUJAN MAL take of fact does not amount to an estoppel 5) 21 It should be intentional (Murphy J. C) B, B. & C I. R: v. FIRM JAMNA LAI --$. 114-Consideration for a bord RAM NIVAS was past debt-Presumption that 'past 1925 S, 14 dcbt' uas not time barred Bond -S 115-tress admitted that he Where the consideration for the bond undertool responsibility of debt-Decrec is pist debt it is a proper presumption passed because of that admission—Sust against the executant that the debt for against that uitness-Witnesses which the bond *75 taken was not time estopped from denying labılty. burred (Norman J. C) CHANDAN MAL V JETUA When a decree in a sunt was passed on 1934 J 68 the basis of an admission by a witness that lie hnd underthen responsibility for S. 114, illust (b) and S 133 - the amount, such witness 35 estopped from Accomplice-Ecidence of, requires corro denying in a suit against humself that the boration --Rule and I. rcellion explained amount 115 due from lum (Murphy J.C) Soon Lat v, FIRM LOKVAV DAS TARA The evdence of accomplices requires CHIAND corroboration in material particulars One 1 J 13 Accomplice cannot be said to corroborate another so a9 to do away with the necessity -S. 116–Tenant in possession canfor corroboration, 8 A. 306 Foll. not deny lessor's title.

·222 UVER LIIN DIGEST. 230 ITIDESCE ACT (1572 S 116 ( Trri• •1 Iirici I.15 741 it**: Kerst EVIDENCE ACT (1872), S. 145. -S 116 - Tenant can allcge fraud, mistofresentation or musstake of fuct: 1 lor's Tort Ricad out It is men to the tenant to alloge fraud, Iar cic: Samser3C.:) CHAN11111 111c; toerntation or mistake of fact, which PIALNIA BBC IR liter passion will include ignorantc of A. IR 1935 P C 59 - 1935 O W.N his less anant of title (Norman J. C.) 379 - 1835 A W.R. 459-1935 R D. 165 RAS history RAM CHANDI R. 1935 All L. R 315 61 CL. 117 - 39 1934 J. 65. CW N. 552 - 69 MLJ 552-41 ML IS 133-tidence requires corro W. 617 - 1935 M1 W. N, 434 1935 O. LR Acration-Rule and liscention coplard: 249 - 1511 C 915-37 B L R 39037 P. L R 331 - 16 U D 221 -16L R A. Tlir cilence of accomplices requires Rev. 250 correlwration in material particulars Onc aci umplice cannot be said to corroborato -S 116--Tenunt estopted from dengan another so as to do away with the necessity ur ian lort's nlc cien though for corroborition, & c. 306 Foll. In FOISC35104 Arior to the cuccution of the exceptional cases a court may be justificd rent 1016 in convicting on uncorroborated accomplice 1 tenant is conned from denying his cience But such accomplice cudence landlords title cscny thought he had greses must lxc of a kind wlucha Magistrate after *10" prior to the cxccution of the rent note, Ichy careful scrutiny with the las present 30 1 C 817, 501. C 591, 51 B. 157, 1923 in huis mind, can sustain in holding trust. All. 53 Foll 25 I C.615, 1921.30. 62 worthy inspite of the usun) restrictile Dins Gorman ] C) RAx Kisils rule, 35 1 217 and 397 Rel. The mere RAM CHANDER. absence of a proiel motive for giving false 1934 J 65 evidence cannot be regarded as a good reason for relying on the evidence of -S 116--Estoppel-Tenant cannot accomplices (Bromfield J.C) SILANDER dispute landlord's trile ALI v. Papru. While a tenint retains the possession 5 J 17. he can not deny his lindlord s title If he --S 145 and S 21-Admission of a finds that he was the real owner at the party sit se free tous statement (sn ceritag) date of the Icase and executed lease under is reletant uithout its being put to the mistake then he must either surrender witness-But it will lave Intlle evidenr. possession and then sue in ejectment or frary value bring a suit for a declaration The question of title as between him and hus landlord An admission is relevant whether or not cannot be gone into a rent suit (Alurphy it is put to the party making it None the J. C.) M. D. S G. GORDHAV LAL V less it is a sound rule of practice to put ROMAN CATHOLIC MISSION all admissions to the parties who made 3 J. 11. them, if they give evidence, and fail ·235 AJMER LAIV DIGEST. 236 GAMBLING ACT, FACTORIES ACT (XII OF 1911) S 2 (2)—Persons paching icc 111 saw Iust are implozed' Sec, Public Gambling Act Persons employed for picking of ice in GENERAL CLAUSES ACT (X OF 1897) saw dust fall under the definition of the word employed as it is a process towards -S 26-Abliment under Salt Actfinishing of the article to a stage when it Can be punished under $ 117 I PC- IS 10 a suitable condition to be put on the Special Act does not always ouer le market (Jolly J C) B PRAG NARAIS General Act V CROWN *3 J 1 (6) Whether an acis a seperate offence or not under the Penal Code is immaterial -S 18 (4)-Rules framed thereunder by virtue of S 26 of the General Clauses Their brcach-Is bicach of the Section Act and S 71 of the IP C. it is tot itself illegal to punish abetment of an offence under the Salt Act under s 117 of tho A breach of the rules made under IPC even if a punishment is provided S 18 (4) is a breech of S 18 (4) and fails by the salt Act itself for such an offence under S 41 of the act. (Baker J C) The principle that the provisons of a CROU V P. BINODI LAL Special Act override the provisions of a 2 ) 39 General Act has been accorded very consi. derable but not universal recognition and _S24-Scopu the prox 1510ns of 5 5 of the IP Care to be rend in a manner that would recon The object of the section appears to cile then with those of section 26 of the mean that the person actually committing General Clauses Act The provisions of a the offence should be brought to justice General Act would have no application only when the provisions of a Special Act have It also appears that the Manager can been so drafted as to exclude the application adduce evidence to escape his own res of the General Act specifically or by peces ponsib litics only when he has actually siry implication The use of the words charged the offender and proved cflence 'suithiu the meaning of the Indian Penal against lum (Baler JC) CROTIV Code in S 9 (c) of the Sult Act does not P BINODI LIL. specifically or by necessary implication ex 2 ) 39 clude the application of the provisions of the IPC To mahe the provisions of S 26 SS 41-Breach of rules under S 1501) of the General Act and s il of the IP C. applicable it is not recessary that an act A breach of the rules under S 18 (+) should be an offence both under the Special is a breich of S 18 (+) nud falis under and the General Act (Jolly J. C) S 41 of the Ict (Haber CHON 5 Cura D hARA SARDA, ADVOCATE in Re VP BINODI LAI CRON v P. SollaLIL 2J 39 4) 1 ·237 AJUER LAV DIGEST. 233 Montare GEAXT OVARDIAY AND WARDS ACT (111 OF 1600) -Best enidence 12 Coundlat ro fort to its 171146 coring (11 Telut et finner the railte ca Irral! Ic Front axle do impostosli nchita Vors FIAT ad (Ja TC 11111 Crut losio roner to interfere to HIN. I ANTID! 4111 10 111 11111111 th ch is court to CH1J licet Ict -Preset plon-cricire Ilon 1c) VR Varu PCAL Vall41 1936 ) 182 (Su-ti le croisert for fe IA Icewithcut in refereece cflardanted -5 12 S 47 and S 48-looptool to the one al clarice fc: minte-arce J-ST'ECD erunt on that the crigral 11; ** sf or les spriest!!! to iss1e«? stesso faltas 10 ended tole Alsolute 371 Fol (Jolls I CI BASI KUAN MST RAIMAT ILLANI Arnication under Section 12 of the 4] 41 Guard an ard llards Act to restran marriage on the ground that the brides Service In-H11 on resumable room was under 18 years of age Court rejected the applical on llell, no arpeal Accrbication clan interest in lies (lonian J C) NIR MANICNDRA landard an obligat on as to service Bulls TALV MASCI LAL Lader three leads 1936 y 182 11 ] CH10 (1) It may bes grans olnud busden --S 19 (b1- latural guardtan lain ed with serisce - Onilsnanıly lepil shardi in he « apported (1) A graut in cons derat on ol past 3d future bersices When the court finds that there exists (1) A grant of an office the services patural guard in ard there is to special 5e1con for appoiitilg a legal guudan the attached to lich Arc remu Court should rot appo nt a guadın perated by an interest in land (Var11s JC) VsT RAY PCARI In tlefrstino classes in the al sence 3) 43 of specific provision to that effect the S 19 and S 25 (1)-I ather is a print would not le resumable at will unts: In ibe third class it would be resumable malural stardı in-lle may when the seruice ceased to be performed custody to another- Such autiority is 28 D 305 Foll (Jolly J C) BASIR KHAN rctocalle-But court consider V BIST. RAIDMAT ILLIIT mihor s uelfare--Strong case ist be 4 ] 44 mnade out for refusing custody of father ·235 AJMER LAV DIGEST. 236 GAMBLING ACT. FACTORIES ACT (XII OF 1911) - S. 2 (2)--Persons packing icc 111 sat dust are 'untployed See, Public Gambling Act. Persons employed for packing of ice 10 GENERAL CLAUSES ACT (X OF 1897) sau dust all under the definition of the word employed' as it is a process towards S 26--Abutment under Salt Actfinishing of the article to a stage when it Can bu punished under S 1171 P.C is in a suitable condition to be put on the Special Act does not alreas otcrride market. (Jolly J C) B PRAG NARAIN General Act v. CRONI *3 ) 1. (6) Whether an act as a seperate offence or not under the Penal Code is immaterial, -S 18 (4)-Rulcs framed thereunderby virtue of S 26 of the General Clauses Their breach-Is breach of the Section Act and S 71 of the IPC. it is tot Iscl illegal to punish abetment of an offence under the Salt Act under S. 117 of the A breach of the rules made under IPC even if a punishment is provided S 18 (4) is a breech of S 18 (+) and falls by the salt Act itself for such an offence. under S 41 of the act (Baker ) c) | The principle that the provisons of a CRON V V. P. BINODI LAL Special Act override the provisions of a 2 J 39. General Act has been accorded very consi derable but not universal recognition and - S. 24-Scopu the provisions of 5 5 of the IP C. are to be read in a manner that wculd recon The object of the section appears to cile them with those of section 26 of the mean that the person actually committing General Clauses Act. The provisions of a the offence should be brought to justice General Act would have no application only when the provisions of a Special Act bave It also appears that the Nlanager can been so drafted as to exclude the application adduce esidence to escape his own res of the General Act specifically or by neces ponsib leges only when he has actually sary implication. The use of the words charged the offender and prosed cffence 'xsathru the meaning of the Indian Pedal agaibst him. (Baler J C.) CROU A v Code': S 9 (c) of the Salt Act does pot PBIYODI LAL. specifically or by necessary implication ex 2 3.39 clude the application of the provisions of the I PC To make the provisions of S. 26 -S 41-Breach of rules under S 18(1) of the Geperat Act and S 71 of the IP C. applicable it is not recessary that an act a breach of the rules under S. 18 () should be an offence both under the Special 13 a breach of S. 18 (4) nud falls under and the General Act. (Jolly J. C.) 5 41 of the let. (Haker.c) Ciut CITAD KARA SARDA, ADVOCATC in Ro Y P DinODI LAL CROW v. P. SONA LIL, 2 J. 39 4). I ·237 AJVER LAN DIGEST. 239 cia - GEAST GUARDIAN AND WARDS ACT (VII OF 1600) -Bert endence 12 Cutlas norr to 115 Il 14,4 controls Child Tutti 'on trite taille ca 86 Ricerianni 1c1 FIL.! c Cut Insio roner to in cilere to ha 1107 1111!1 ve 111111111111g which is contrary to Cold Moriage Re<It'unt Act. VR SMHI VIA LAI. Presos ption-1('csr VATI 1936 J. 182 10 ericiter fet sera 11C withcui 11 trilererce chlaida: led - 12, S 47 and S 48-daagseal to the curre ter for martence a 18 st onder refusins lo sssac ai micrim 111erile nu! Stor that the crisira! TIJUCAR Tali *** !ded to be a's lie (Jogja 14-1111 ha MI KAIN AT ILLANI Arnication under Section 12 of the 41 41 Guardian and Wards Act to restrain mrm17ge on the ground that the brides. --Service on 1 hen restable room was under 18 years of age Court rejected the application. Ilcld, no appeal WA Combication cf an interest in lies (Norman J. C) ME STATICNDRA 1 ndardan ollution 19 to cruce i lls | LAL V MANGI LAL. under irrte leads 1936 J 182. 1 Fot > (1) It may be a grant o 11 d burden S 19(b)-Satural guardsanlıung ed with actice -Ordonanıly legal guardian be not « apportal (1) A brit in consideration of past and lutuic services Wen the court finds that there exists 11tural guardian and there is no special (11) Agrart of an ollice the services atracied to sticle remu rezcon for appointing a legal guardian the Court should not appoint a gaudian, nerated by an interest in land (11urphy J C) MST. RAV Praki. In the first two classes in the absence 3 J 43 of speciác provision to that effect the ---S 19 and S 23 (1)--l'ather is a grant would not be resumable at will In the third clues it would be resumable natural guardian-He was entrust when the service ceased to be performed custodly to another- Such authority is 28 B. 305 Foll (Jolly J C) Basir huar retocable-But court consider Y. MST. RAJIWAT ILLHI. inlinor's selfare--Strong case must be 4 1. 44. made out for refusing custody of father.

·222 A'SER LO DIGEST. GC2214 22A LI (1399 5 19 1) T- N'LIS MER CCANUS & LAS CT 1189.. St. --S 22 (2)-Dcro C-T fees I Sir C. TS-5 Seco ozmi - Ima'lus ty Gorecs277.2.2. c Y 47 12 1, 2-1f! TC csoric\225 $ cccamast's En *1!'.'gracerse 27 fresca dicas rytas, 22 y cr161 to estate for the told cobrt 255 -112, 147 curly 2-deszling Ecard 20 24 B Liss. » Ignande bz :- cita ras tu total) Dictoirt 22.: caucc be appe:14 cor irration uns S25 (1) cit- Guar guard:22 10 Es personal capacity as te 15 dars 2:1 Ward AC rct rela ed cs 12 aos may coacec'ed with the micor (Torrar JC) FATEH CHAND V DISTPICT WAZIP () VI at is for the child & Vellare s 111 *1934 ] 47 dabad on the cuccistacces cf each mart-slar rase but a strong cake should be made out for refusing custody to a -S 25 (1) and S 19-Father is a fail natural guardian-He rray cntrust custody to another-Such authority is retocable-But court will consider (c) Courts in Irdia exercise equity minor s welfare-Strong case must be jurisdiction and a clear discretion is conmade out for refusing custody of father ferred on then by 5 25 to refuse custody (f children to their father of their welfare 60 demands Th s poser would be exer Sce S 19 above (1sed to control the niher s or guardian's les ni nel 18 o! custody when ti eir caprice S 39(b)-Guardian must be resident qui exrici e would materially interfere of British India with the tappiness and wellare of the cluid or when such rights have been for This section imples that the Guard in feile!! y conduct or ncquiesence, or when appointed should be a resident in British the father has so conducted himsell or 15 Ind 1 for otherwise the court could not flaccl in such a position 18 lo render it control such 1 guardian (furphy J C) not merely letter for the children but NARAIS CHANDET AND CHOCA essential to their wellare in some very 3) 37 Serious or imit ortant respect that his rights should be a 19 pentel or interfered aith S 47, S 48 and S 12-lo affeal 16 41.700,39 1 807 96 I C 617,23 C. agavustonter refusing 10 155110 e londerim 290, 193 UR 232 Rel, (Haler C) nganchon K) OLIY1* MIR Y R J BACK 1926 S 49 Sex, S 12 abose ·241 AJVER LAW DIGEST. 242 NTROLYESTS IOCOME TAX ACT (1022), 6 60 --S. 31 and 23 - M'ks of dission of Sri Pras' re-imroserpris shares of joint family should not be tulen al time of appeal bul must be filen af tome of Greersment INCOME TAX ACT (IX OF 1933. S, 23 and S 31 Picior dit 1676 Src S 23 above olarc jronlleuls lll not le S 31 (2)-lo analogy betucen O. 11, talen nic Toril in mic 127CPC.-rlssistant Commissioner iulan 111:ncc an! has restricted discretion to make for 11 rr enquiry crler t 21 enti shares le been distrled keineen the members of a Nonnaies can be drawn from O 41. jort 111r's family must le rised it 127 Civil PC to determine the powers the 17e o malo 7 mustert under of the Issistant Commissioner hearing ng 23 and it o be rt sed for the first arnell under the Income tax Act, S. 31 time 07 anpeal agurst the assessment, (2), as the Intter gives unrestricted discre (sor Bennet JIRI SITI BIT ADISTA! tion to the Assistant Commissioner to LODIA . I COM TAN COMMISSIONER, make further enquiry, that is, to obtain AMEP more evidence throwing light on the A I.R. 1934 All 217-56 A 504-1934 question which he is called upon to decide. A LJ 1213-153 IC 722. hile 0. 41, R. 27 confers very limited ---S, 25.A-S 25 A has no applica poners upon a court of appeal in the 110n in case of partial division of joint matter of admitting fresh evidence. (per property Namat Ullah J) R. B. BIRADIIVAL Lolla v. I\Cour.TAN COMMISSIONER, In the case of a partial division of a AJVER joint family property S 25 A 1173 no AIR, 1934 All. 217-ILR, 56 A 504 application (Niamatullah Benne! JJ) 1934 A LJ 1213= 1531 C 722 RB STA BIRADIMAI LODIA AcoMI TAY Cost<S1oYI , AJT Rẻ S 66-High Comt can decide the A.1 R 1934 All 217=56 A 504-1934 question of lau arising from statement A, LJ 1213 =153 I C. 722 of Comm5810ner -S. 25 A--Partition need not neces. sanly be by mnetes and bounds (c) It is open to the Iligh Court when hearing the case on the statement of the (d) Partition contemplated by S 25 A Commissioner to decide what are the is not necessarily a partition by metes questions of lw which arise, 1929 All aod bounds. (Nramatullah Bennet JJ) 819 Rel. (Namatullah E. Bennet JJ ) RB. Scrii BIRADIIMAL LODHA V R. B. SrTil BIRADUMAL LODHA v. INCOBF TAX COMMISSIONER, AJMIR I\COVL TAI COMMISSIONER, AJVER A.I.R. 1934 All, 21756 A 504-1934 AIR 1934 All 217=56 A. 504=1 AL J. 1213=153 C 722 AL J. 1213 - 153 1. r V ·273 AJMER LAW DIGEST, 244 INJUNCTION Form- Dehmte directions Heles INTEREST (Contd) >> All 101 12 P 16 1933 Lah 212 Foll (Tomaul J.C) MAIGI LAL V BASANTI Sury Pilt 1934 J. 1 Ao lojunction is soniething actually granted ie an order to do something or to refrain from doing something (cf CPC Append D-Form 14 16) (Murphy J. C) LAL CHIAND V CHISU LAL. 3) 28 -Detention of Money-Not to be allowed for mere The mere detention of money in the absence of such circumstances as fraud or breach of trust is not a ground for a varding interest 1934 A. AI.LJ. 1, Followed (Il eston JC) CHIUNNI LAL v SHEO PRASAD *1934 J 143 INSOLVENCY ACT See Prov neil Insolvincy Act or --Detention of Money-Allowed only under agreement or statute INTEREST Interest can only be awarded when Also scc CPC-S 31 there PS an agreement-express O 20 R 11, implied-or when it is payable under some O 34, R. 3 law such as the Interest Act (Norman Contract Act--SS 23 & 74 JC) LAVDIYA LAL HUNJA *6 J 1. -When to be allowed-At that rulc Ietention--1); tray of damuges In aj be ate ired of plaintiff hept out of Sce lo ficnt ou by JC 111s monet 2 J 57 (GS) A plziot ff who has been hept out of -Detention-\ot pnable hi agree hs money and to that extent was unable mnent or statute-Ilere detention of to dras i terest at the ordinary bazar money no ground for at arding it rale by ler ding it to other people is entitled to le unded interest by way of damages When interest is not piyable by agree even though no specific cvidence was led ment or under sintute the mere delention by liim about it (lachlin J.C) BAL by the defendant of money due to the Sivil v RATA LAL. plaidi:fl is not a grourd for award ng it fº5 | 2 (II) ) There must be something in addition such as fraid or breach of trust *51 11. -High rate--Court bound to allou 2 (11) Not Foll Galj 1, But it can reduce tliere it is ponal or 50 Jad 91, 53 Vad 349, 50 Al 819, 11 SHTIONS ·245 VER LIV DIGEST. 216 INTERPRETATION OF STATUTE INTEREST (Corit) (c) Though the court should allow the interest at the stipulated rate formet high, let it can reduce it in ceces in hch S :* cf the Contract lct or of the tsutious Loans Ict applies (11urplis JC) Brian LA 1113 111 3 J 5 Suit for retoiery of urenrs of rent Where no contract to pay interest, the mere fact that money is due from one pirt) to another is not 1 ground for 71 arding interest (Vorman JC) MAND RAN RAV BILAS *1934 ) 25 Included in suit Khata - Court found Khula relable-lanccessary for fluinsit to Icad credence about inlorest -Stipulated rate. Ilust be allou cd houcier lugit less penal or isurious Interest was iccluded in the suit hozta Court held that the hhata nas reliable Ileld, it was unnecessary for a plic int to lead further evidence. (Sormani JC) PILL CHAND V HAR LAL. *1935 J. 210 (a) When there is a stipulated rite of interest the court must allon it honever high it may be (llurphy J.C) BrITARI LIL ATIVID) 1927 S 19 INTERPRETATION OF STATUTE -Mount Abu--ot at Micable to loud Abu -Words to be gitan ordinary meanmg Interest Act does not apply to Vount It is a sound principle of interpretation Abu (side Notification .O 281-1 dared that words should be give their ordinary 242h April 1929-IV-Vlac 75) (lor meaning unless to do so would make one man J. C.) THE TUKANA MILTIS part of Act inconsistent with another or PATI RAV IISA RAV & Co would lead to absurdity. (Norman J. C) *1939 J 99 AYBA LAL Y CRONA. *1934 ) 25 -New case- -Gitc cffcct to apparent meaning Alaku In plaidt, Dterest claimed by #ly of one part consistent with another damages and mercantale usage not set up In cross examination, defendant admitted It is a recognised rule of construction that interest was usually charged in sugar that the provisions of a statule shall, if trade Held, plaintiff caonot be allowed possible, be given 1 meaning which gives to change his course of action (Norsan effect to the apparent intention of the J. C.) KISHAN LAL v. RAM DALAL legislature. KHAJU LAL *1934 ) 26. It is also a recognised rule of construc tion that the provisions of a statute should Rent-Sutt for-Interest 1101 to be 50 far as possible be given a meaning awarded there contract to buy which will make them consistent with one interest another, 1925 Cal. 203 Relied upoo. 110 ·247 AJMER LAW DIGEST, 248 INTERPRETATION OF STATUTE (Concd) | HINDU LAW (Contd) (Broomfield J C) LAKSHINI NARAIN V -Adoption-Jams--No age limit LAL CHAND HARI SHAVER 5) 30 (c) Among Jains 1 person can be adopted till 32 and probably there is no -Retrospective-Statutc not retros limit of nge ((Murphy J C) DHANNA pective less mtentio! cxpressed 111 LAL 1 RATAN LAL statute itself 1927 S 42 -Adoption-Jains-No ceremonial Retrospective effect ought not to be necessary given to a statute unless an intention to that effect is expressed 10 plain and (d) It also seems likely that among unambigious language (Norm m j C) Jains as is the settled rule in 'the Punjab F JETII VAL AL\D4 VALI S BADRI no adoption ceremonial whatever is 'requir LAL ed the transaction being purely 7 matter of *5 J 5 Cul contract but there is no decided case on this point for 1jmer Meruara (Mur phy J. C) DHANNA LAL V RATAY LAL 1927 S 42 HINDU LAW -Adoption>Jains-Orphan cannot Adoption-actum calet-Doctrine applicable of adoption i alıd apart from lack of ceremonies 6) The rule of Hindu law that an orphan cannot be adopted is in the absence (c) The doctrsne of factum valet of custom unni ersal and applies to Jains applies to an adoption only when the dop and Hindus alihe (Hurphy JC) DIANA tion was valid apart from the lack of LAL v. RATA LAL observance of ceremonial necessity 1927 S 42 (Vurphy) C) DIANA LAL Y RATAS LAL -Alienationellanager-Necessils. 1927 S 42 Alience must prore necessity or bona fide inquiry as to legal necessals Adoption-Jauns-Il'edote has same pouer as her husband 1 person who cluna i tle under an alienation from 1 gurdian of an infant (b) Imongst Juns i sonless suidos 1 s must prove that there is legal necessity the same power of wdoption as I er husband for it that is such pressure on the estate would have Indifle lund chosen to ever 11 tl et nie ti e loan as then or the niena cise it neither his sanction nor that of any tion made as justified the act of the other person is necessary, 8 A 319, 17 C guardırn le can also protect himsell bis 519 and 30.4/1 197 Foll Surphy) c) proof of lonn fde in juiry and filc fict DHAN LAL v RATAS I AI of such inqi is estil lished the real 1927 S 42 ctrstence of an alleged sufficient and reto be adopted 1 ·149 JVER LAN DIGEST, 250 HINDU LAT (Conil) akcesorice Isis) 1 I realem Diculills uitle C0C L.) 23 Foll (Il con JC) PUIN Stil DITAI 1935 ) 24 HINDU LAW (Conti) (n) The general rule wong Juins in t! at inile at once of 1 custom to the contrın the rules of Hindu Iru uppls to lemn in mitter 1 inheritance and toption 16 Bom 317 and 22 Bom 416 Rel (Vary) c) DIAWILAL RATAS LIL 1927 S 42 -Alienation-Cu parteners on Father - 11 hrn can alırnar henditried infcrest Debts-Intecedent- Veaning 1 (5) Iccord ma to the interpretation (b) in antecedent del means 7 debt the Viitalan in the Intelliource ante adent i fits well 75 in time that co parcene c? mt alernte rien hi On 11 IS1) that the Iti must le truly del intere! without the In1 independent and not part of the transaction 11c order wu 11 onera incet ir lenal impeichect I borrowing made on the necci UT de «co fattet for 041 Un of the print of 1 morthage is not ment of an antecedent del in antecedent debt, 39 111 +37 Foll 126 and 31 m 507 Foll Ti e rule in (Baler j C) S GULAD CHAND Bombay and Madras is different 44 B 141, VIULAND BEHARI LAL 43 B 472 and 25 1. 623 Ref There is 1925 S 45 no settled rule in limer Verwara und Consequently the strict interpretation -Debts- Creditor deprived of mort adopted by the Vlahabad High Court must gage secnly-Ile can pursue personal be followed here Jolly J C) LACHNI remedy when whole family estate liable MARAINS RAY CHA DET unless sons poe illegally or immorali 4) 22. ty n Or Business-Opened by a to pai cener (c) Then the creditor is deprived of (not the father) -10 presumphon of his securits of the mortgaged property he joinines6 might pursue his personal remedy for the debt subject to limitation and in execution Whatever presumption may exist thereof the whole family estatc hable the case of businesses opened by the father for its payment unless the son prove that as Vanager of joint family no presump the debt 119 contracted for illegal tion exists of jointness when a business is immor ul purpose 46 d. 95 Foll. (Jolly opened by any co purcener or by 1 \linager JC) LACH VI MARAIN RAM not the fatler (IVeston J C) I\DER CHANDLR CHAND V. SAHIB CHAND SALAS MAL 4 J 22 1935 ) 104 -Debts-flortgagee obtains deerte Custom-Jains-Ordinary lare against father-Sut by kons that mort applicable to paint m absence of prcial yage intalul-Baden of proof on most custom gagee to moze legal necessity ·251 AJMER LAIV DIGEST 252 (1 HINDU LAW (Conta) HINDU LAW-(Concluded) (d) I sen when the nortgaget lins If a man has tuo sources of income onc obtained a decree ng umat the father of 1 from joint family property and the other joint famik still in the son s suit for 1 pra te there is no presumption that in declaration that the mortgage s invaliet purchase was made from the foriner sauce the burden is on the niorthigee to prove (Norman) C) FIRACIS v Visiin LAI legal necessity intecedent debt, 1936 ). 71 51 A 106 Rel (Jolly JU) LACINI NARAIN RAY CHANDHI -Manager's Power to sue hasta can 4 J 22 suve alonc on contract made by hom -Debts - Joint family - Ilortgage to alone--but he should state thee in plaint pay antendent diebts-Buding out sont I he 1 irta of joint Hindu fumit can in the sc Li mortgige sons ind Suc alone such on contract made by lim grund sons ure bound to pay off of the ilone He should state in the punt that mortgage deed 175 Crecuted to pri off he was suing is Harta of the joint fimth antecedent debts 1924 P C. Jo toll 33 a 272, Foll 4. JL) 77 Dist (Murphy JC) HIRA LAL v MADIO (Norman C) Phool CHAND JAGAN LAL NATH 2 J 69 1936 J 16 -Debts-sons mous obligaton Stridhan- Ornaments-wo pre limitalon sis years sumphon (c) Limitation for 2 suit based on pious obligation of a son to pry is o vers under There is no presumption that ornaments article 120 of the Linntation Act and are Stridhan On the contrar in the limitation runs from the death of the absence of any evidence the presumption father 16 Vat 99 und 1L 7.64 Rel. would be that the ornaments formed part (Baker JC) S GLI AL CHANDY of the estate of the decersed husband or Mt LAN 1) BIJI ARI LAL father (Jolly J C) Ms HISTERI 1925 S 45 hESARI VAL *3 J 2 ---Guardian- 1/mor only bound irhen contratu to his benefit -Succession-Sapinda-leaici rr 10 me 1 minor Inble on cluery Remote trecuted is his guardian itminst le alioun that the fronus for his icnefit flormast ile ordinari rtile under the lotikshan J.C) CITANDA HALJITHA is that the net sat ind escludes the 1931 ) E8 temote i nephe" will fucceed to the --Joint family110 winner of in whole of the properti (Julme grand met heutonether 30 l. 9C+ Foll. heint family preparaty ml (Jolls / C.) JA NANAIS hosili pritale-lomamphu that any pure CINDET chirr rate mule fare the forme: ronne •5). 1 (1). 1 txind ·253 WMER LIV DIGEST. 254 JAIL MANUAL JURISDICTION -Para. 810-Funim for rente in curie's brire chiry minionc S, l'r etre Jurists fron Crinul irul Jutrediction Sce, iarlia 9 J 17 (S) XHATA JAIXS See Dch i ind (relatos unlet 111 inte helin Hindu Law O. litary lliniu lair notable in absence of penal cust KITATA BAQI SU I imitatu Irt (a) Th(stiral rule impen uns th!! itir ewie istom the ut in the rules of Hondu 1. pkt them in the matter w 19h ntin. wp10n 16 B 347 and 2 B 416 Rel (Hurplig ICI DILAN LALI RATAN LAL 1927 S 42 LAND ACQUISITION ACT (I OF 1894). S. 23-leasure of aluc ) ירCr (1) In land acquisition cases the ordi- JUDGMENT nary principle is that the prevailing market rate for building sites in the vicinity should also see ( () () be awarded with an increase or decrease Pricine Jud, ment accord ng to the advantages or drawbacks 347 of the land ac«uired from the point of view -In Cul suunil Appeal los of the purpose for which it can be used to 192— Vranny of 1e best advantage The Judicial Commissioners judgment in Chui Second appeal \o 56 of 1928 (2) When 1 plot to be acquired has (Shamlat Committee, Ilok Valis 2 of changed hinds shortly before the acquisi- 1jmer The 11alies of ijnier) determunes tion, it is evident that the price then paid nothing more than that Goshumar which is a very good index of its value in the is equtalent to gint, and I lioli could not absence of special circumstances be lessed without proof of consideration, i e, it must lxc proved that the pirty (3) It cannot be assumed as a general sought to be made liable lund ictually rule that sales from widows are usually at grazed his cattle on and used forest produce a ruinous rate for the widows (Murphy from Shamlat land (Norman J. c) c) ABDUL RAILWAY Y. THF Co CHANDER. Duom1 SINGH TOR or AJMER MERTARA. *5), 3 (111) 1925 ·255 AJMER LAW DIGEST. 256 LANDLORD AND TENANT. LANDLORD AND TENANT-(Concluded) Also scc, Transler of Property Act SS 106-116. a cause of action for a rent suit. (Norman J. C.) BEMI GOPAL 1. ABDUL RAFINAS, 6). 43 -Lease for fixed period-Tenant continuing in possession on same terms after erpin cannot claim adıcrsc posssession Suit for rent-Damages for inse and occupation cannot be arcaided. (c) Where, after the expiry of the period In a suit for rent, damages for use and fixed in a lease, the tenant continues in occupation słould not be granted unless possession as tenant on same terms expressthere is an alternative plea or the plaint is ed in the lesse, he cannot claim adverse amended, 21 WV R. 205, 22 C. 752, 1928 possession and the lessor can recover the Nag. 27 Foll 31 All. 276 Dist. (Norman property back (Lords Tomlin, Russell J.C) G GOULD Y, JATAN LAL. and Sir Lancelot Sanderson) CHIANDRIKA 5). 100, PRASADA V B B. & C. I Ri. AIR 1935 P C 59 = 1935 0. W. N. -Tenant in possession --Cannot deny 379–1935 A, W R. 459 = 1935 R. D. 165 lessor's title. = 1935 All, L R. 345=61 C L. J 147= 39 C W N. 552=68 M. L. J. 552=41 M. LW 617 - 1935 M. W, N. 434 = 1935 O (6) Tenant cannot dispute his lessors" L. R 249= 154 I C. 945–37 B.L R. 390 title so long as he remains in possession = 37 P LR. 331 16 U. D. 221 = 16 L. R. under an agreement which he has made A (Rev.) 250 with them. (Lords Tomlin, Russell and Sir Lancelot Sancrsou). CHANDRIKA -Occupant-Person in possession for ( PRASADA V. B. B & C. 1. Ri. long uithout any agreement for rent A. I. R. 1933 P. C. 59 = 1935 O W.N. Subscquently rent demandat-Suit for 379 - 1935 A. W. R. 459 =1935 R. D 165 root lies only from date of iemand 1935 All. L R. 345= 61 C. L. J. 147 - 39 C. (c) Rent as opposed to compensation W. N. 552-68 M L. J. 552-41 M L. W. 617–1935 M, W, N. 434-1935 O L. R. for use and occupation can only be claimed 249154 I. C 945–37 B L.R. 390 e 37 for such lands by the Shimlat from the P.LR. 331 = 16 U. D 221 = 16 L. R. A data of notice of demand and not for a period prior to it. (Jolly J.C) PAHILAD (Rev) 250. 1. BALA PERSHAD. 4) 61. LAW REPORTS ACT (XVIII OF 18751 Qabulisat-iluthe transfer of posses ston-Can form basis of rent su --S.3 A qabuliyat signed by the tenant amounts to an agreement to lense and coupled with transfer of possession files Suc. J. C's Notification. 1934 ) I (N, SJ ·257 AJVER LAW DIGEST. 258 LEGAL PRACTITIOSER. Enrolment Rules LEGAL PRACTITIONERS ACT (XVIII OF 1879)-Concludat. -S41-1 nrolment Rules. Sce, Nefeiton by C. 1931 J 7(NS) Sec Judicial Commissioner's order 1934 ). 7 (NS) Supaganded Rules hurerseded Rules at 2) 63 ( GS) 2), 17 (NS) 2 J. 63 (GS) 2 J 17 (N, S) -Feci in care brand lu lu ial Comuniceraner LIBEL. Sec, No 16cation bs Jr. 1931 | 3 IN S.) Sat, Tort - Libel -Pleader-Prals, al Sec Totit calc 1, JC 1931) 4(NS) LIMITATION Amendment-No retrospectic effect -Re'ation of Prodiny «fficer- Should seldom of 1171 apyka lrfore Scc Practice-New Law. - Amendment-Lemutation changed Sec, Notification by Commissioner and dang 50-New Law governs appeal D). 2 J. 12 (G S.) Sec Practice-New Law Res Judicata Touts - 1| legal Practwo cases from-Theri tefian will, recalled at once. Su CPC.-5 11-Limitation. wrong -Revision-(. ground decision of lat. See, Notification by Commissoner and District Judge 2 J 12 (GS) Su CPC-S 115-Error of Law Revision-Imitation for filing REVISI011 application fixed at three months LEGAL PRACTITIONERS ACT (XVIII OF 1879) Sce CPC-S 115-Limitation -S 4 and S 41-Txtended to Ajmer Merwara -Criminal Revision-Before Sessions Judge-To be filed with three months See, Chiel Commissioner's Notification 2 J 21 (N. S.) Sce, Notification by 4 DJ. 1936) 1 (N. * ·259 AJMER LAW DIGEST 260 LIMITATION-(Concluded) LIMITATION ACT (1908), S 6 -Time extended for payment of deficit, If the counsel of the plaintiff has beca suo motu by court-Payment made after misled by a clerical error of the copyist expiry of Larutation-Respondent not relating to the date of the preparlog of precluded from urging at hearing that cop es, the delay can be excused appeal is timc ba red (Broomfield JC) MADHO LAL Y M BINODI LAL. Where the court of its own motion 3) 41 d rects deficient court fees to be made up and court fee is made up after the per od Ex Parte Decree-Setting aside of limitation has expired it is still open to the other side to plead that the appeal 15 -S 5--Period of 30 Days for setting time barred The hearing of the appeal exparte decree cannot be extended is proper time to urge this objection, 5 A V LJ 83 and CSA of 1929 Foll Section 5 of the Limitation Act does 1932 W 82 D18s (Torman ) c) HIRA nt apply in Ajmer Merwara to an applica tion made for setting aside ex parte I ALV HAZARI MAL JETI MAL decree and the Courts have no power to 6). 16. enlarge the time of 30 days fixed by Act 164 of that Act (Alurphy JC) GEELA v Sukideo LIMITATION ACT (IX OF 1908) 1927 S 23 --S 3-Starting point is date of inst Pendency of Review tution and l not restoration -S 5-Pendency of Review applıca A suit is dism ssed for default nou tron good ground of prosecuted with then restored Limitation is to the effect proper diligence from the dite « hen the suit was filed and Dot from the date of restorntion (IVeston A review application may be good JC) MOHAMMED HANI but Sird ground for extending limitation HABID HUSAIN clearly it cic be good ground only when 1934 ) 111 It has been prosecuted with proper d ligence (Il eston] C) h MIDA LAL V MST -S5 PAULAS Clerical Error 1935 ) 22. Ex-Parte Decret-Setting aude S5-Retreu good ground: Review-Pendency of Review application of bonafide, is good ground of ercusing Jim (1t1on (Norman Clerical Error, DC) VOIAS I Any hey Cit4YD 1934 ) 30 SS-Clerical error relating to date ol Aroportion of cons-Counsel isteri-S 5-herine-Time taken in bona Delar con lone sk Retics Procce tongs may be excluded ·261 AJMER LAIV DIGEST. 262 LIMITATIOS ACT (1939), S 5. LIMITATION ACT (1908), 6 14 Timetalen upo rrosecuting bona fide -5. 12- Ipplication for reference proceedings in rete* is suficient ground under S 17 of lymer Court's Regulation for coojosirg dela in flira arreal. 15 C (1 of 1877)-Time spent in taking 9 and 400.150 Foll Arrellant is not copics to be excluded entitled as of nipit to exclude such period * ben the application for res en 35 mmely (2) Limitation for such an aplication frivolcus cr des gred to gain time. The is to be computed, after crcluding time ultimate failure or success of an applica: taken up in obtaining copy of judgment. tion for revier can not be rezuded as any (Jolly J C) AUDIL QADIR KHAY V criterion of the bora fides of tie irplıca. ABDLL Raoof. t105 (Jolly J. C.) PABit La 1 F 4 J. 92 Sonia R1!1 SRI RAY 5 J 1(!). S 13 -Defondant resudent of Indian -S 5-Timic stent in rosecutong bolla Stal. -Presumption that lic lred out of British India-Little tidence sufficient fidc retscu-To be cucluded-Il notice issued Reticu is bonafidc. (a) In the case of a defcodant who is a resident of Native State the natural (a) The time spent in prosecuting with presumption is that he has spent his time due dile gence « bonafide and proper applı outside British India and very little cation for review should be deducted and esidence on the part of a plaialiff will the appeal ought to be admitted, 15 C 21 suffice to obtain the benefit of S 13 of the P. C. and 1937 Bowl. 221 Foll Limitation Act. (urphy J C.) BALA RAM V. FIR 31 MOOL CHAND RAN NARAIN. 6) If the court issues B nolice to the 1927 S. 50 other side it is a sufficient test of the bona fide pature of the review application, S. 14-Court returned plaint on (Broomfield J. C) BAKSUT RAM grotund that suit 1106 cognisable by it - KUNDAW MAL. Plantiff entitled to exclude the time taken 3). 57. in determining that it had no jurisdiction --S. 6 and 8-S. 8 got erns S. G A plaint was filed in the Court of Small causes which ordered that the plaint be (c) Section 8 of the Limitation Act returned od the gronnd that the suit was governs S. 6 and though in case of minors, not cognizable by it. It was then filed in possession of the alienee from other co the court of Subordinate Judge Held, sharers becomes adverse from the date of plaintiff is entitled to exclude the time his possession the minor can file a suit occupied by the Small Cause Court, in within 3 years of his attaining majority determining whether or not it had jurisdic. for setting aside the alienation but not tion, 70 I C. 613, Foll (IVeston J. C.) afterwards. (Alurply JC.) M. RAFI MOHAMMED HANIF v. SYLD HABIDI UDDIN V. KARIM Bux, HUSAIN. 1927 S. 37. 1934).

·263 AJMER LAW DIGEST. 264 LIMITATION ACT (1908), S 14, LIMITATION ACT (1908), S 19 -$ 14-Revision filed after District Khata Baqi Court's finding that no appeal laz-Party S 19-Smt cannot be based on mere entitled to exclusion of tomic acknouledgment Applicant came in Revision only after the District Courts finding that the order A mere acknowledgment of an older is not appealable In the circumstances debt without a promise to pay, cannot be made the basis of suit, 1 AVLJ 16,22 B applicant is entitled under S 14 of the Limitation Act to exclude the time spent 513,52 B 513 52 B 521 & 56 A 281 Foll in prosecuting the appeal and the revision 1926 A ULJ Supplement 4, 1926 A AI application is within time (Weston j C) Supplement 29, 5 A MLJ 51 & 46 B 24, Not Followed 3C 1047 Not BISHEN LAL v SRI NARAIN 1935 J 117 applicable S 15 (2)---Notice of claum undur A distinction should, however, be S 77 of the Railways Act is not notice of drawn between an acknowledgment which suit contains an express promise to pay and one from which a promise to pay can be S 77 of the Railways Act does not inferred (Weston JC) Narsingu DAS prescribe any such notice (as is required v RAW LAM WAR. by S 15 (2) of the Limitation Act) It 1935 J 14 only contemplates a submission of claim The period of such a submission cannot S 19-Acl not. Icdgment can satc therefore be excluded within the meaning limitation-But not furnish cause of ol S 15 (2) of the Limitation Act 70 1.C action 109 Not Foll (Vallon JC) BBICI RVT. LAIVI NARAIN CIAND MAL Achnowledgment in sriting may serve 5) 53 to save I mitation but cannot exempt a S 18-Scope of plaintiff from proving his cause of action (Harphis I c) C114111s 1IFRAI CODD Frud under S 18 of Limitation Act Y VAIGI L 41 cannot have 7 different meaning from fraud in S 415 of Indian Penal Code (Vormanc) CHAVIA VAI VONIAS -S 19-lata Bagi-sluou Icdg LAL v BHOLA RAY PHOOL CHAND richts-monts to promissory notc 1934 J 79 (1) A suit based on ahhita Bagi S 19 cont bieg 70 acknowledgment by the Khala Bagi debtor is (10tan ount to cut on a pro Bagi Dena Rabu missory pote, CI 75 of 1926 Foll Joint lliodu Family Such 1 51210 is governed by the proti1075 of 45 of the Contract Act Without Prejudice under which all jo at stomisecs lase the 1 J 16 - ·265 VER LIIV DIGEST. 266 LIMITATION ACT (1903) S 10 Isht lo choro mta.cl the 110 1150 (117'11C) Du Ryi hal .5 J 51 LIMITATION ACT (1908), S 20 ment by one member of the family of n det: due by the family business ncd cin be 71711ed by the creditor against the family AS hole (Jolly j c) un JLTII VAL ISI LAL Y VASCI LAL *3) 7. -- (S 19 A1 111 B:11 Ice-T a provasc ! Jorm 118 of sutt Icinn leds 11 Without Prejudice S 19--Offer qualified sith without Prejudice - It is ach not lugnant (a) Ilhata kinnonce to pas and can icmtte tiss of 1 s !! 33 61 1467 / Card 45 BA 34 Rel 891C 402 Dust Barice) Chav CIANI SHOT +1926 S 29 The words without prejudice hare no meaning and in offer though qualified b) these words dues amount to an ichnou ledgment liablity within the meaning of the limitation Ict and saves limitation (turphy JC) BBICI RI VESSRS RATI RAV GurCSA RAV 1927 S 13 S 19 Alif Bagi - Ishuleelo mont - in treins 01 2016 (b) An acknowledgment cap form the basis of the suit 33 Cal 1407 and 46 Bom 24 Rel (Baler jt) Munna BASNA 1926 S 4 -S 20--Creditor can appropriate at any time - to pay A creditor is not bound to make his Baqi Dena Raha appropriation as soon as the money is An -S 25- 1791 delu raha - Amounts | pod but can do it it any time to mero al notledgment and riot pro api ropriit on made in the plant towards principal cin sive Limitation von 632 11ise to pai Diet (Noriran C) DURGA LAP ! KAVHAIYA LAL The word dera does not convert an 1936 / 34 achoowledgment into an express promise 21 44) Rel (Torrian j C) S 20-I ntries on behalf of Illite VIST I MARTI CHANIA LAI rul person must be signed by the 1936 ) 180 person & riting on his behalf Joint Hindu Family Entries said to have been made on behalf of 10 illiterate person must it S 19-Debt to a Joint Hindu least be signed by the person writing on I amuly business - licmber 8 position his behalf (IV eston JC) NATHU V similar to partners of a firm SARWAN 1935 45 Members of a Joint Hindu Family carrying on a family business are in the -S 2C-Plaintift ust arer position of partners as regards acknowledg ment-Also acknou ledgment in a pontor ·267 AJMER LAW DIGEST, 268 LIMITATION ACT (190B), S 20 Under Section 20 of the Limitation Act it is necessary for the plaintiff to aver not only that payment was niade but also that it was acknowledged 17 writing (Iorma C) SANTAL RAV V GANDL LAL *5 ) 1 (III) LIMITATION ACT (1908), ART 10 sions of Section 20 must be read subject to the provision of section 21 (2) Limitation Act, HC978 Foll (Jolly J C) TOTA RAV V RAU SWARUP **J. 1 Art. 7 or 102-1Vasherman--Not artisan or labourer ---S 20-nckiouledgment after sunt Does not satimation In acknowledgment need not be con temporaneous with the payment but it made after the surt has begun it cannot gave limitation (Norman JC) SAVHAI RAV V GAVO LAI *5 J 1 (111) A dhobi is not an artisan or a labourer and a suit by him for services rendered is governed by Art 102 and not Art 7. In absence of agreement a dhobi is entitled to reasonable remuneration for his services (Norman ) C) TAJAMAL HUSAIS MD BUY *6 J 1. -S 20-Payment by money order- Sates limitation - Date of payment is date of receipt and not date of despatch -Art 10--No steps towards pre emption for one year--Surt against pre cmptor becomes barred ta) When a payment is made by money order the date of receipt and not the date of despatch is the date of payment (c) When po steps whatsoever tonards pre emption have been taken within a year from the date of the sale such a suit aguost a rival claimant 19 barred by time (Jolly J. C) MASJID CHIRAGCHIYAS Y SHIRA CHAND 4) 15 (0) Payment by money order saves limitation under S 20 of the Limitation Act because the presumption is that the MI O form beurs the remitter s signature as required by the l'ost Office (Turphy JC) SHATI MOHANLAL Y MANNA LAL LARUIMTE CHAND 1927 S 25 after one year -Art 10 and Art 120--Suuts by rital claimants for pre cmption-article 120 applies S 20 and S 21 (2)-Payment by one co debier-ll'hether attende period against the other Iryment by one co debtor cannot operate extend the period of Imitation uoder S 20 as against a joint codebtor unir the payment le shox tlohue bren made on behalf of the latter. The provi. A suit against a risal claimant is not 7 vit for pre emption but for substitution on the ground of a preferential right to pre empt and is not sorerned by Art 10 of the limitation Act Article 120 applies to such a suit Volly J. C) MASJID CHIKACCUYAS Y S 1111 A CIANI) 4) 13, ·269 AJVER LAW DIGEST 270 LIMITATIOS ACT (1909) ART. 11 LIMITATION ACT (1908), ART 85 -- Art 11-A-sinf brought to three lens of the date of filing of suit got nd of an onder ander R. 101 were not burred by limitation (11 eston SALI. u hatcrct its form 1961 le brought 1CINATIIU " 1935 ). 45 within one ir Art 75– Default makes the holc <mount foalle on the date of default (2) The effect of Rule 103 of O ?! Ciul Procedure Code rend rith Art cle 11 cl the Limitation Act is that in order risced urder R 101, canle set 15de onls bi a suit brought within cre ren Ins suit brought to get rid of the effect of an order Lrder R 101 intercr its form, whether for declaration or cjcctment based Upor sus erior title, must be brought under R 103 53 B 66% Fall 1926 CA! 377 Dut (Vacklin JC) CII ATLR BILI RAU ISIL DASS 5) 61 Where the money borrowed was ray. Able 17 instalments and it was provided thit upon deljult for payment of three iptalments the whole amount of the loan should be payable at once, the third default mide the whole amount payable on the dule of defnult Delendant was vot entitled to revert to the original agreement as to instalments either for purposes of pleading that amounts were not due or for purposes of limitation. (Weston JC) Mori Poosa 1934 J 109 Art. 22— Injury to the person includes assult or criminal force Tojury to the person is a wider expre Art 75-Bond payable by instal ssion than bodily injury The expression nichts-Limitation runs from default injury to the person in Article 22 includes any act which would const tute the offence When a bond is payable by instalments of asault or using criminal force (Norman the ordiorry rule is that limitation runs JC) BABU KAM v THAKUR PRASAI), froin default Limitation is to be decided MR on the claim as set out in the plaint and 1936 ) 143 not on a claim which might have been made (Norman JC) ABDUL GHANI V -Art 74-When there 18 no default AKDLR KHAN clause lumtatron runs from the date 6) 41 uhen instalments fall due Art 75--Limitation 11111S from A bond contained no default clause date of default making the whole amount on default of one or more instalments (6) Limitation for the whole sum coverable runs from the date of default Held, Plaintiff in fact was suing on a (Slurphy JC) SHUNTA LAL Y SUA LAL. series of causes of action which had arisen 1925 S 57. when the instalmeots fell due and that the instalments which fell due within -Art 85-Essentials due re ·267 AJMER LAW DIGEST 268 LIMITATION ACT (1908), S 20 LIMITATION ACT (1908) ART 10 Under Section 20 of the Limitalion Siods of Sect on 20 must be read subject to Act it is necessary for the plaintiff to the provis on of section 21 (2) Limitation aver not only that payment was made Act HC978 Foll (Jolly J C) TOTA but also that it was acknowledged 17 RAV V RAY SWARUP writing (Torman JC) SAMBAL RAV *4 J. 1 VGA DE LAL *5 ) 1 (III) -A, 7 or 102-IV ashormou--Vot artisan or labourer --S 20-krouledgment after sitt Does nol salu lintation A dhobi is not an artisan or a labourer and a suit by him for services rendered is An ach nowledgment need not be con governed by Art 102 and not Art 7 temporaneous with the paymeot but if made after the suit has begun it cannot In absence of agreement a dhobi is entitled to reasopable remuneration for his services sa ve limitation (Xornan JC) SANITAT RAY V GADI (Norman ) C) TAJAMAL HUSAIS LAI MD BUN *5} 1 (III) *6 ) 1. S 20— Payment by money order- Sarcs limitation - Date of paymeut is Art 10—No steps towards pre dale of receipt and not date of despatch emption for one year-Suit against pre emptor becomes barred (a) When & payment is made by mobey order the date of receipt and not the date (c) When no steps whatsoever towards of despatch is the date of payment pre emption have been taken within & (6) Payment by money order sases year from the date of the sale such a suit limitation under $ 20 of the Limitation aguinst a rival claimant is barred by time after one year Ict because the presumption is that the (Jolly J C) MASJID MO form bears the remitter s signature CHIRAGCIAS Y SHIRA CHAND 4) 15 As required by the Post Office (Wurphy JC) Su\ATII YOHANLAL V MANSA LAL LANVI CHAND --Art 10 and Art 120-Susts by mul 1927 S 25 claimants for pre emption-article 120 applies ---S 20 and S 21 (2)-Payment by one io debier-lhether cutende period A suit against a risal claimant is not ugainst the other a suit for pre empt on but lor substitution on the ground of a preferential rigot to payment by one codebtor cingot pre empt kodus not soverged by Art 10 operate to extend tie period of I mutation of the Limitation Act Article 120 applies ucdar So as ega nst A JO! co debtor to such a suit Uolls J. C) MASJID unless the paymeat le sloun to have been CHIKACC111SAS Y S HT18A Chann made on behall of the latter dy 15 The provi ·273 .IJVER LA DIGEST. 274 LIMITATIOS ACT (190S1, ART 144 LIMITATION ACT (1908), ART. 182 ----Art 144-Profcrt Insthe auction -Art 181--Vor applicable to mini sula-Hut regarred fter 1? 1cirsmlocipal dnes fresh tarting point Irticle 181 of the Limitation Act A rosif, fourteen seurs after the l applies only 10 application under the Cul lots by auction sale, cirre Asun into the Pro-edure Code ard not to application for hands of the represent1111e1n irterest of recosery of Vunicipal dues, 7B 213, the persons who hal teen allo ici toure ?C 929 *1C072, 601C 123 Foll it as part of the matcare security (lcrm.711 ] C) CRONI AYBA LAL 5 J 92. Hell, that it cannot for a fresh starting patch lim 11110n artie suit -Art 182-1 iccution application is barred (Varnis jC) Chris I AL bomd to be infri tous on account of a ». Bijns XARAIS statutory bar-It is not in accordance 2 J 77 tenth late Art 144 & Art 148-A licnics of Decree holder died leaving a will equily of redemption from co more por niming Cas erecutor C, as executor, -Suit by one co morigogor garerned by applied for evecution As C had not Art. 114 obtained probite he greed to have the (d) When propusty is already mort application struck off Thereafter he applied gaged the rosition of an alience who his for probate but his application sas rejected purchased equity of redemption from on the finding that the will was a forgery. some of the co sharers or co mortgagors is The heir of the decree holder subsequently not that cl a mortgagce and a suit by a applied for execution Held, as probate co sharer or co mortgago! ho di not stas not and could not be produced the Join the allegation is governed bs Art 141 durkhast has bound to be infructuous and and Dot Art 148 of the Limitation Act not 111 accordance with law (Murphy JC) 11 KA!! DDIN (Vorman JCI QUTUB UDDIN V SOBHAG KARIN Bux VAI 1927 S 37 *1936 J 211 SO was V -Art 168-Vot applicablı--!l here no notice of hearing Art 182 (5) - Ixcess amount claimed 111 I xccutio : application-No material defect-Application IS accordance with law 112 When the appellant had no notice of the hearing he can have resort to S 151 because O 41, R 19 read with article 161 of the Limitation Act pre supposes the proper service of summons on the appel lant, 15 B 648 and 11 R 26 Foll (Sorman J.C) MATHRA DAS KALYAN MAL. *6 ) 7 An excess claim was made in the Lxecution application for principal as well as interest Held it was not a mate ral defect, 13 i 550 Foll 1928 Mad 110 Ref. (Norman J.C) RAM DUTT V CHATUR BHU). 19:6 J 110 V ·275 AJMER LAW DIGEST 276 Art LIMITATION ACT (1908) ART 182 I MOHOMMEDAN LAW. 182--Execut1011 Application Alienation-rather's peteer of alic returned for cornction-Return no proof mation On bchalf of 11nor S011- that defect as material Alienation 1151 binding on minor f.101 for legal accessity Return of darllast for correction is no proof that the defect to be corrected is Father's power to mortgage on behalf 1 material and not 7 milor del ct of his minor son is a limited right. A (Vorm 11 ) C) RAU DUTT V CHATUR mortgage which is not for legal cecessity Biru) of ile mi or son is not binding on him. 1936 | 110 (Il eston JC) ABDUL GAFFAR V, VOI VED SIIASI. LUNACY ACT (IV OF 1912) 1935 J. 107 -Gift- I'lcthar registration 116 --S 65--Appointment of manager- Only after inquisition - Ilelical nertifi cate of necessary cessary 70 Only after 1 lunatic has been so found by inquisition in the prescribed manner has the court jurisdiction to proceed to CODsider the appointment of a manager A medical certificate not enough (Jolly J C) VIST CHANDA MOOL CUAND) 3) 5 Though an instrument is not necessary for the validity of a Viohammedan gift, yet if there is instrument it must be registered, 1927 Cal 197 Diss (Norman JC) ABAS ALI V ARBAR ALI *1934 ) 47 1S -Hiba-bil-Ewaz-Release by ut/c of her claim for louer good consideration MALICIOUS PROSECUTION 5, Tart Val cious Prosecution The release by a wife of her claim for doutr is a focd coi sideration for lubi bil en 27, 2's 1.70 and 7 L. 123 Foll (11'ston ] C) DUS GifАГraІ Von TED SHA! 1935 J 107 V MASTER AND SERVANT dre --Liability of maiter- besligues of Legriracy-Iloman marnici lo a sen ni-Sen in acting as the erriss second m1 tothom! being ditorced bs dire 11011s masterSallaster IS her first husbani-Ciri Ireng the secon! husbon illegitimate inspire of in 1 suit for damages agisst the cl01 ICI" nl 1113ster on account of the neilgence of his (h) All that can be effectively acknos servant it is not a good delen'e ti ar ile ledged us a intter of fict and to ackrom ser riat acted agzinst the corress d tre ledzmert a praciple of lar mill be trong of the mister. (lor inci effense of the last is not that it is ack Holtaspoor hitas!! ISTIR VAL. nou lenjio le drou clan tind sorced 1926 ) ICO roman by a second lulurd is illegitimate ·277 VER LAV DIGEST 278 MUROMUEDAT LAK-(Chri) MONOMMEDAN LAW—(Concluded) 20.) ro ante acına slemmen: bs And in the absence of any endence of his father can pacably make ! un legiti urge to the contrary in resrect of the mate Foll (11 10111] c) particular shtine in question, 19 C 203 IIT 41114 ANI 11171 11 of 1 and 111 111 PC () Dric Volls) C) 5} 48 1) { 1 RA . A BAS; ALT41 ISAN Marriage-Dissolution is (!11- *4 J 3 Incomithills icrofono:1 fround No MONEY ORDER A Court carro! griri dissolution ci marriage oa the ground of ! Consiblity el temperament ant nst the lusla: la mall Ilormar J C) Voor BMI VASITA 1936 ) 61 - Payment by SI 11 11110n Act-S 20 Marriage-Second Harnas. Ok disorced t.om 11 - Absolutely tid MORTGAGE an are ونا (a) A marriage of und sorced --World, ague purchasing part of prooman who e husband 13 le is not perts Vortsage hot necessarily dis merely invalid but absolutely rod 1999 charge! Lah 372 Foll (rc/l111] c) II RAHIN han Y HAZKAT NOOR HAN 1 he effect of the purchase of a part 5 J 48 of the mortgage property by 1 mortgagee is not t1 discharge the mostange without Pirzadas - lot rucugine? regard to the value of the portion purchased (lurphy J C) NANGAH BADRI (1) The Pirzadas do not perform any PCKSTAD duties and not recogn sed 1 ) 18 Mohammedau law as a class (Wurphy C)SCD ALI V TIL DURGAHI KUWAJA Registur.isul mortgage-lololice- SAIL 16 Sunce of louli dge of the sit mortgage 1927 S 15 by the 11011 1101-Payment to morts ige extinguishes mortgage -Waqt-Dewan entitled to surplus Registration of a sub mortgage is no I11C0ne notice to the Mortgagor consequently In accordance with general usage and payment of the mortgage amount by the practice the Dewan is enniled to the mortgagor to be mortgagee extinguishes disposal of the whole of the surplus incore the mortgage nud the sub mortgagee la alter due provision had been made for no semedy against the mortgaged property the maintenance of the shrine and the Volly C) 5 PANNA LALI S TIKAN performance of the necessary ceremonies CIAND etc. But this general right can only hold *3 J. 3 ·283 AMER LAW DIGEST. 234 PARTNERSHIP ACT (IX OF 1932) -S 19 (2) (c)-Partnei call ASSI5h a decree to a third person PARTNERSHIP ACT (1932)--concluded (Norman J.C) LACHUI NARAIN STIFO DAS VAL MOTI LAL 1935 J 20 -S 71 (2)— Rules fo issign 1 decree to third person for what it will fetch is not 1 compromise or relinquishinent but merels sale of the firm s properts (Vorman je GUI AB CHAD RAVIMAS 1936 ) 79 Sec, Notification by CC 1936 J 2 (NS) -S46-Suit hy one partner against anothier-Docs 110t lie in respect of ang -S, 74 and S 69-Right to realise money accuring before Act-Right is unaffected --Procedure hou en er is govern od ng Act transuction which forms an item of the partnersiup account The ordinary rule is that one partner Sce Under S 69 abose cannot sue another in respect of any trin action which forms in item of the partner shup ?ccount (Norman JC) CHAND MALI TIRU BODU RAY PANSA LAL PART PERFORMANCE *1936 ) 214 Doctorine of part performance cannot -S. 47-Tirmi dissolted-Partners bc intolted apart from S 53 of Ilic authority codturucs for purposes of undong Transfer of Property Act up the affairs or firm - He has authority to realise decretul amount Igreement for sale of land lrice paid Possession taken by vendee but sale deed I partners authority continues after not registered Held, that the pluntuff dissolution for purposes of winding up the ncquireil no title ind 75 the time within airs of the form Relsink what 175 which he might hue sued for specific sier due on n dccrcc would come under vinding formance his clap-el le coull bet no up the nffurs of the form (Norman JC) benefit from the contract 51 123, Foll GUIAR CHANDRAN.11 AS SUA LAL VOICI 11 Couvin11 1936 J 79 BIAW 41 1936 J 115 S69 and S 74- Right to realise irones CCTRINA belore deRoulut 13 Img 121-lrnclure louctoris Oi!! Doctrine not afflicable to allts: el by elci Doctrine of pirt perform ince dans not riuni)() oull but itt is in 11:) Bits 1: Bonn 0 Full ti*rchiteral tim (1114 if ction (Santa C) VIST (UKAS Yox Afistub apk 1 nlreimin Live City 1935 111 824 ar! 19;, lalte #33 Foll, ! * 1936 J 213 On 1 ·S5 AJVER LILY DIGEST. 266 TARTS WALL occasir 1101 tl ou consent of etler 11 lirin nule of lan is that joint (( 11 It all mis r. mikr ti (ilCIICA 111 ttcre cert to the ir pares (larran C) TV1T 01 SI RAU CHA DNEVI \4T111 1935 | 131 TENAL CODE (1840), S 75. We en drafted 75 to exclude the application of the General Ict specifitalls or by necessari implication The use of the lonls within the meaning of the Indian lemal (oxls in Suc) of the salt Ict does nyecificallarli necessati implication anch de the uplication of tlie provisions f the 11 1.) make the provisions of if the (cneral (ruscs Ict and 11 u! the I ( wplicable it is not necessors that in 16 should be in offence In hun kur the Special and the General Dillu CAR SARDA, CATI 11 R CKOUS SOLIAN 141 431 P (511) 110 orjominess Ticte is 1 presumption that 1 parts 71 15 )! Ilirren C) TENSIE OI SKIRAVCILANDAN41111 1936 J. 131 -S 40 and 109-117- dar abcticd nor offence tinier Penal Code Shll ortence ander Penal Code PENAL CODE XLV OF 1860 -SS and S 71- Abetmen wuler Salt ct-Cou be punishe / nomlar 1171 p C-Special Act does not als assortir de General Act (c) The effect of the provisions of S 40 and 102 117 of the Penal Code is that abctment of any offence is an offence under the lonil Code whether the act at etted is itselt in ollence under the Penal de or not Jolly J C) CHAND LARAN SAD ADVOCAIC, In Re CIOVN V PIIAN I AI 4 ) 1. S 71 and S 5 See Pen u (ode-S 5 (b) Ilhether in it is? Durite offenre or not under the lenu (ode is immiten 19 urtue of $ 20 of the Gener (1125 Ict and S 71 of the IPC is not illegal to punish il ctement of in offence under the Sult ict under 5 117 of we ! C even if a punishment is provided by the Salt Ict itself for such in offence The principle that the prouisions of 1 Special Ict override the provisions of 1 General Ict has leen accorded very con siderable but not uns ersal recognition ind the provisions of 5 5 of the IP ( ire to be rend in 2 munner that would reconcile them with those of section 26 of the General Clauses Act The provisions of 1 General Act would huve no application only when the provisions of a Special Act -S 15 Sobougent contiction for offit!ce pror to the offuscc (in question) Sectto: ks 10 application The theory underlying Section 75 is that when 1 min has been punished for an offence and then commits i similar offence it shows that the previous punishment was not enough A court ought not take into consideration sentences ·287 AJMER LAIV DIGEST. 288 PENAL CODE (1860) 8 84 PENAL CODE (1860), s 182 after the offence (before the Court) eien l'nder colour of such office is wide though the actunl offences for which the e pression If a man pretends to hold an sentences were imposed were prior to the office and also pretends to be certuin offence (before the Court) (Hormon i C)'yuthority thereunder he acts under the FVIII Ally CRON colour of such office even though the 1936 35 authority is 's much 1 pretence is the office 27 al 291 Foll 1, I t 785 Not S 84 - burtality is not ins n'y Foll (Torma JC) SurRAV CICH The criterion in the cases in which *1936 J 215 in 2011 i pleed is uhether the accused bnew the nature of the act and that he -S 182 and S 211--Information to was doing what 475 krong or contrar to Police follored by priate complaintlan The accused mn le bnormal but that is not sufficient in the eye of 12 Police challaned under S 182-Charge (Baler) C) LNGAR VIDDLF COAT v. under S 182 should be quashed-Com hr plaint should be dismisscul under S 203 2 J 14 Cr PC or ineestigated further -- 11 -S 109-117 and S 40-Act abetted complaint turns out to be false proceed not offence under Penal Code--Sull under S 211 Cr, PC after sanchon offence under Penal Code under S 195 (1) (b) of Cr PC Scc Penal Code-S 40 above A complaint of ripe 174 mide to the -S 117--Offence imder Salt Act Police not ander Penal Code-Still Section 1171 PC applies The Police held that the complunt (a) The unintunent under 117 11 178 false and chillined the complunant under S 182 Indian Penil Cole Subsese for trement of an act which is an oʻTenue un fer the Ict and even though I of rape before 3 competent Vipeatrile ulo quently the complunint filed 7 complaint not an offence under the l'enrl Code is not sent it to the Police for enquiry Upon illegal of the Sult lct does not cnrnce ! alimenta Xul Jarls onls ritka receipt of the l'ol ce report the Vasstrate ordered that the ripe compiunt he hope simple cases of Pletment by indukunls while S 117 11111es to serious pening till tlc decision of the case 1811nst the complainint under S 182 Indiin t'enal cres of bein ent l pullic 1 luge Cole (Jolly J C) CH45) MALAN SARDA, anioCATI, in hr Con TSO Hell -(1) That the Vlag strir order 175 im tot in roull not li ustunei! Ti Vas rtr s null outlet lunds 170 -Pretentions I held! missal the ar plunt under san3 of its of de and hang uthond there under Cr P ( Oreircle iniciale it furt!! 3A!! 397 Foll Iit ·289 ANVIER LAW DIGEST. 290 1/11" PENAL CODE (1800), S 152. PENAL CODE (1860), S. 325. (2) Tatil prorerlin Idris TOU. It inust be established that in fact 1 1'. C. hnul not only in the but the bicycle was not or could not have been quashed, a' teelparert wuh the (Uʻl! under proper control before any inference print wcall gulsif Terpe com as to dinger to other persons could arise. p'! turno. lw fulschoud be one (ll'eston C) 5110 ILI 1. CROW Lade S. 911 and niS.I.P.C., 192; 1934 J. 122. Pal. :), 1923 111. 172 13.11, 3G Cal. 7, 10 A11 900 Rel. S. 302--Unsaſ lo contct on corroboratoiletrience of an C3e uitness, (31 That when an infumunt the certain pertions of t. host er nience throt. I'olice is followed in 1 cemplunt to the Mond1 On its truth Count based on the menllestions and the same charge the complaint the It is highly unsafe lo con ict an accus COLrt itt is necesar under section 125 ed of murder on the sole uncorroborated (1) clica! ( 11 r the count esidence of an eye sitness in whose statetale onnin inten e pumalalle mnent there are certain such portions as urder within in reitlih throw great doubt on its truth (Baker lake 175e mude the folie TAL AL HAI CHON у 2 ) 3. The fort that the complant was 1101 investigated by the ruurt inches no S. 304-Protocation reduces murder difference, 1925 Par. 183, 1) Cal. 1152 to culpable homicide only then it is both and 44 C. 650 Rel:(Shannon C) MST. Arate and sudden PARTII CRON 5J 41 Provocation reduces murder to culpable homicide only when it is both grave and -S 279-tert fast airng-lo sudden.(IV.ston JC) GULAU 1. Crown. offencc 1934 J. 136 Mere fast driving dees 10t constitute S 304-Camsc and effect an oflence under S. 279 By standers, estimates of speed are very unreliable (Norma/C) Drm SINGAI CRONA. A healthy person is knocked senseless 1934 J 51 and dies very shortly after he receives injuries and suffers by no other violence --S 279 - Tho PCsons riding on 0 during the interval The reasonable cycle-Proof ofrasi and negligent driting, inference should be that he died of injuries 11cccssary inflicted on him (Alurphy) C) PRATAD - ICRON There can be no doubt that riding a 2 J 51, bicycle falls within the meading of driving a vehicle, but of two persons ride on the -S. 325-Intention to gitc ordinary same bicycle they are not necessarıly likely beiting-By chance tictim suffered gre. to cause hurt to other persons using the t1ons luurl-Parisiimçit 1st bc light:

·291 AJMER LAW DIGEST. 292 PENAL CODE (1860), S 376 PENAL CODE (1860, S 498 If the accused inten-ed to gile ordinary tire natural consequences of his action berti g and by chin e the victin suff-ried 1923 All J10 Diss (Baker J.C) Kesri surh injor es as Amounted to griecus hurt Val Croni the sentence should par be very severe (V/vroly J C) ABDUL GI! 19 • CI OJI Y 2) 47 S. 464-Essentials-Int ICC 2 J 20 lo Igeil for ---S 376-Rap-Charge (h) The essence of the offence of nor is that the document should be Tohtly - But casily rok-Difficult to reftite-Il eight to he ittichitocharter false and that it should purport to brie of prosecutrix been prepared or executed by some person ts hom it has not so been prepared or (a) It is well known fact ind 1:15 crecuted A false signature is not 7 often been noticed jud cialis that rire is necessary requirement of all faise charges the one most casily (c) indices are not necessarily docu. made and for an ingocent accused the one inerts sh ch require to be executed or most difficult to refute ndit 15 hronn $16, ned (purplis j c) HIRA LAL that such charges are cften facely made Ciul for the most inisial motives though primi 1926 S 1 facie it would seem that they would not be lodged lightly outing to the disgrace v hich 461__'Wodes'-Onlmnary mcan having been the sictim of such an offerce, inglot necessarily cxccution Regerilly entails Signature or آب (b) \ery great weight is con'equently (n) The word 'makes' in S 46+ I P alreded 10 such cies to the character I must be taken to mean manufactures chc prosecutr x 11 d * here or 'prepues' or 'produces its ordinary 15 1 groin or woman udno piscul meaning It is not used in the Caglich Shisut the Iricula e cine expected Conic) 11 ces sence of this inderxure from the medical exiler e lo! mul> plade and does not necessarily connote an cl injury on her ners nind to the general ere ution cr Signature of document rrebat litics of the cases to be de luced (all, JC) Iu II IL CION from the rerutition of the rosecutors 1926 S 1 (Purple) have v CIOS S 493 Dat is WIE IS "Teens 1925 39 luch -Si ell nature of control erin'c1 c is sic esssry -11 roman 1113 to ante- Iron a fiori siti i slitin irucline interior accuse I can be coll frie tien to arr » 15 3 fact she is cly on to the report actuelni meilileire! !ype Jodels 11s inns 17 mistlerieure to irler] Tie » id dem in S-C110 459 transferts on and according to the crd 1313 lied language, 'deene back. But there may be ravioli rays of keeping ·203 IJVER 1.1 DIGEST. 194 POLISE ACT (1861) Conclutud PESAL CODE (1660)-Coins! bich It reerst nocereur Thyscal /nice. it ma leli posa 40 01 bi nllore eris ird 11 do: - lut There aruldt-inrical in the riure I control cr 1 once ! hri Docteils le de rib. a. nlee I cl cf 1'c Hom. lle-cilme1. 1CI11 entire freedom ard CC sel ises cbstruct her froi go mercici se likes, le cinno be C71cie 1 Sechico 493 15 he (11 ot be ud to tes (crn an ) () VU CHAN 1936) 11 The rice line no inerent night to enler tipon priitc property in order to fuil tntc the dacliarge of their dut es I can do so as of ghi only by virtue "1711te empunering them to do so TI r ct ter on for an oflerce under S Sro viether the orders are renconable Hinc) JAILAND LIL I FT CIL 1111111 VIII Cioll 1935 ) 1 PRACTICE Amendment SCP-0 R17 S 500 - Siilto: bith Il no rary Magistrita Appeal a Appeal Appellate Court Sec, Ippellate Court Burden of Proof, Sec Burden of Proof Tlc cfferie Id-ultin Ո higli technical branch of lass 11 it IS not poceible for a Pench c llonorari Vagis trates to properl api reciate the many potentialities in it for the defence or the prosecution Such a case ti erel re Tould not be alloned to be tricd b) a Bern Hovorary Magistrates (Shannon JC) FATEH CHAND V JITH VI A! 3 J 12 Cost, Su CPC-0 35 41 R22 und Costs Decree Suo CP 0.0 and Decrec Cvidence Execution Sec Lxecut on Interest, ili terest PIRZADAS Sce, Mohammedan Low Issues Pirendas PLEADINGS Judgment Judicial order Jurisdiction Law Governing. Sec, Practice-Plea lings POLICE ACT (V OF 1861) Limitation, See L mitation --S 31 and S 32-Scopu In exercise of their duties under S 31 the Police have no luthority to demud entrance into the private houses of persons Lnconnected with the procession, Offcial Recervar Nazır. New Case 1 ·295 AJMER LAIV DIGEST. 296 PRACTICE-(Contd) Paper Book PRACTICE-(Contu) Evidence Parties Partition suit, Su Partition -Evidence- Appreciatioll-No de func-Storn tes'imony for plaintiff- Dismissal of sunt incqutabli Petition writers Pleader Su Legal Practitioner Pleaders Fee, Su CPC-S 35 To reject an undefended claim which is supported by Su orn testimony 15 Inequitable (Bahur JC) ruv Xoov Rav JAGG 4\ NITI GULAB CHAND 2 ) 31 Pleadings Precedents -Evidence-Party Hot Iccssarily bound by stal mints of lus otu 11 uitnesses Procedure Relief Review S. CPCO 47 Revision Su CPC-S 115 1 here is no such absolute rule thnt a party is bound by all the statements of his Own fitnesses Such rule would not work in India where winding over the other side's witnesses is not at all an uphoorn practice. (Norman JC) UNAK BUI V. WA/IR ALI. *5 J. 4 (III) Trial Witness, Su Practice-Ludence Amendment Execution Su CPC-OOR 17 Set, Execution Appeal laterest 1 Sus Iprenl' Sut, Interest. Inues, Appellate Court luuet- ciccurate S. Annellate Court Burden of Proof Se, Notification by JC 1936 ) 20 (NS) -Josue-Vot nusseil-.Vo presim fron that parties have adducit all cidence Su, Burden of Proof, Costa Suc,CI'C-S 3510 +1,R 22 Costs Decree here any sue bas not been raised expressly it carnot be presumed that the rarile ne ad luce all the evidence Available to them (Irowie!! c) \ASIUND Nox Vol 391) *5 5 (1) S...CMCO20 Decree ·297 IJVER LA DIGLST. 298 PRACTICE-Iloirit --Issues-Pins in Alarici PRACTICE-Conti) Judicial order Judicial order-undanke recorila bu Registrir of Couri- Court order iritubi levar und only allud It Just -- Innte oljitiomule its are fit incles which do the raidis It is 2 sdt tot llou the 11 B S1) Foll (nr 79 c) Ram (1 RAAN141 1934 ) 70 (11 11 Issues not happily framed-lar Hvorili nith their undance 1 siderce recorded by Remistrar and Court's order willen by Reg strar ind onls initialled by the Judge 1117 This is an objectionable practice which has been adversely commented on Various Occasions (Sorman C) SILALI VOUL CHANI 1936 J 160 Tcpoints for decision were perhaps i ot hun framed but in 1 Small Cause Courtsu! were issues are not framed, Tefo e I earns rities must huse their Jenre ready to cupport their case (Sormani JC) HISIA LAL TRAN DAHAL KITAJL LAL *1934 J 26 -Judicial order--Offc notes--On matters requiring order-Juge should not pass oriers on office nolus Judgment (4) The practice of passing orders on an office note on matters which require a Sec, CPC-O 20 Judicial order is undesirable and should be Criminal inal-- Judgment stopped (Norman J C) BBCI ---Judgment-Should specify which NY V TIL EINARD NIILLS COVIAVY LIVITLD Brawat. parlics un to recuito costs and hore 5 ) 83 ulang sets are alloi ed Ver there are several parties the Judicial order--Sut againsi legal judgment should make clear which parties presentaties - Duty of court to scrul are to receive costs and how many sets 11111" plumhii claun are allowed (Norman JC) ABDUL RAMAY DIVAK BI () A court should proceed with care 1936 117 in examining planet:ffs cla maguint legal represeptatives who have 110 personal Judgment-Masdirection by Juleknowledge of the alleged trarsnction Vistal e of lau - Interjercice with find Qolly JC) V VI CHAND GULAB CHAND ing's of fact V NATHA Visdirection by a judge amounts to a 5) 7 mistake of law (Norman JC) MAYGI Judicial order-Order LAL V HUSANI 1934 ) 31 nference to anthority ·299 AJMER LAIV DIGEST 300 PRACTICE-(Contd ) PRACTICE-(Conti) When making an arder 15 15 necessary I court is justified in applying any to state the 11thority on which it is made 125 that may be applicable to the facts (Hurphy JC) AZIV ALI y VsT MANVI before it but it is not so justified then the Biri ficts necessary for 2 decision on i pomt 3 / 13 of haw nre neit) er plundel or proved (Biker C) S CLLAI Chand - Judicial order-- Il rong reference MUKAYD BENARI LAL to law by court-Court must be tal en to 1925 S 45 hare done hat it could do indor correct laut Limitation Su Limitation Official Receiver - (a) A court must be taken to have done that wh ch it could only do under the provis ons of the law A mention of a wrong provision in the order will not make that order under that provision 47 A 181 Foll (Bates JC) S SOBXAG MAL LODHA V KISTUI CHAND 1926 S, 41 Official Receiver-His Powers Se. Totification by JC 1934 } (NS) Nazir Jurisdiction -- Jurisdiction-Insolency-angliawas -Nazır—Sale not completed-Nazır slot entitled to remuneration Sec Notification by CC 1936 J 15 (NS) --Jurisdiction-le? Lau (6) The rules do not provide for pri ment of any remuneration to the vazir when the sale has not been completed (1urphy JC) Benari Lal v THE DISTRICT NAZIR 3) 51 Su, Practice-ves Las -Jurisdiction-Practice cannot confir Jurisdiction New Case ---New Case-Intensi A Court can not by mere pract ce acquire any jurisdiction pot given to it by Its chuter or act of constitution (Barlec JC) ANDUL AZIZ AVIR ALI 2 J 33 In plant interest clue 11131df damages and mercantile 4676e not set up In cross einmtion defendant nutted that interest 175 uvurls chated in sugar trade 11elt puntill cannot be alloned to change 11s course of action (Tormasi JC) hisia la RAM DATAI huaj LAI *1931 ) 26 Law Governing -Law Governing--Court mas pply luu upplicible lo ficts lefore it ·301 UVER Lill' DIGEST 302 PRACTICI-Col) - New Cove'." PRACTICE - (nt New Law- II. wir daug Isi-lipial interned by . rich ܢܐ 1 } 111 ใ 1 1 1 CI h VI 3) 6 Istit LIUS rtikiny 712) 11 al merely pro cdural 1 u elect The * Strells the old law lesen n I de regarding In the nature 190 C 369 Foll Shannon JC) Voni LAL V 1 -New caseei und ! 4 J. 7 New Law-Dane posscluder old 1 ml also lnus samler old lat. 1 11 jant ? on runt dit intent sih his pleadın, 3 B 35 192, RI 115 19.1 Ran 1912C Mo Rel (hent) SUVLD MALI IACUNI *5 J 5 (1) li e rithe of appeal on the mcrits which Indice ruled linder S 15 of Regulation 1 of 191 17 not then why by the new Regulation 1 of 1926 (Baler J C) ARDI L RAIVAN V MST SADDI. 2 J. 27, Execution. New Law Alreal -New law--Eleculion-Sut filed ----New Act--Pussed subsequent to before near Regulation came into forcem that lub of sat-1/pul folct by On l'rccutron applicatun filed after Actueus ket slut erpressh protados dlate-1115 golcined by Nere Regulation to the contrary In elecution application filed after the 1st of January 1927 though arising out of 11 i peal is 1 mere continuance of the 1 suit file<l before that date is not governed url? al proceeding initiated by the filing of the plunt The right to continue that in the Courts Regulition 1 of 1877 and proceeding in way of an appeal cannot cien when the first appeal Court confirms the trial courts order 1 second appeal is le [fected 1 ict, wless it competent (Norman ) C) MIST. Gorry expressly so provides, 04 96, Fo lowed (Muherji and Young J J AUT) RASUL JUCAI KISHOI E *5 ). 3 (III). ALI KHAN V BAL KISHAN *1931 ) 28 Jurisdiction. =AIR 1934 AII, 709=3 A W.R 604 =1934 All L R 845 – 151 1 C 362 -New Law - Jurisiliction 2 neu ·303 AJMER LAIV DIGEST. 304 PRACTICE—Contd ) Parties Parties-- Description of-Monors and Legal Representatites PRACTICE - Contd ) \\ hen 1 Regulntion (or Act) is repealed parties have no substantive right that the juriscliction which 1 Judge or Court exercised under the repealed Regulation lor Ict) continues under the new Regulz tion 11 LJ 7 Not Applicable (11 eston) u HrT RAV JCTI 141 V TI SI RU RAV SUARLI 1935 ) 18 Sec, Notification by J C 1936 J 13 (N S) Partition Suit Suc, Partition Iim tation Petition Writers and Typists -Partition Writers and Typists-Rules New law I unitation is proce durallat - lmtition changed dumg sunt la loi gorerns appeal Sec Totificntion 1936 J 26 (N S) Pleader. Sce, Legal Practitioner Pleader's Fees (c) I imitation is purely a matter of procedure or adjectie law and no litigant has 1 ested right in procedure If the 1nx of limitation is changed during the pendency of 2 cut the new law governs the case in its further stages and not the (Shannon j C) MODU LAL v VOHAN LAL 4) 7. Sec CPC-S 35 old one Pleadings. -Pleadings-accurate Amendment of Limitation Act--10 relio pa lite effect Sec Notification by JC 1936 J. 20 (NS) -Pleadıags-Platuts - Translation of (1) The mendment of the Limitation It does vot operate retrospectiek so 15 to validate applications which were time larrell under the old 111 (Jolly JC) ADI 1717 Chap 1141 Sec, Sotification » District Judge 1934 5 ( NS) .--Pleadings-Translation and Conrparison of Paper Book Paper Book-Rites for preparation See, \otification by District Judge. 1934 J 5 (NS) Pleadings - Translation-S C с RexSIONS Sec, District Juine a lotification 2 J 60 (GS) Ser, \otification by JC 1934) 5 ( NS) ·305 VIER LIIV DIGESI 306 PRACTICE (C) -Counter written statement-lirs 1 1 2 PRACTICE (1) In this D strict the Allahabad Iligh Court decisio is me to be followed 10 pre terer ce totho-c of Bombay or of any other Il gh Court Shannon J.C) DIANTA La Cura MAL *5 J. 4 (I). clut-Desir 6c nic a con'crnille $111 Initiat 111! ܕ ܨ ܙܕܥܐ ܠܕ ܕܙ ܙ ܗ ܕcl Gurerally - 11 mie tuin (127) 17.si ! 21 the plan Cainen RAYAGA41 - Precedent-Conflict 1/1 11 thadult prcfurred unic JL 141 • 1936 J 217 Tie general rulc in jmer is to prefer tic lilahabad sicut when there is a diver herce of op n on in the different High curis (Jolly JC) SLJA NAVD v. Voui CHAND 4). 27. Constru 11011 111 OM Vuti al trul NIIS LAS Vun Turisanje LAL Precedents-Conflict of - Allahabad licu preferred *1931 J 27 -Poirts-lot glede i but in 191C Sec. Practice-Issues (c) in Ajmer Verkarn it is reasonable to prefer the view of the Allahabad High Court in certain classes of cases. But Precedents -Precedents-ronflataf--Ilit ul to follow the Allahab til High Court this is not an invariable practice. This court is at biberty to adopt in cases of difference of opinion, the view that appeal to it the most (Broomfield J.C) Mst. haji v MANNE KUAN 3 J 64. tieu -Puccedents - Conflict of--Ordenarily Allahabad time is preferred on When there is a long course of decis ons of the Allahabad High Court on 1 particular roint it is usual to follow Us at view of there is a couflct of decisio15 But when ouly a single decision is cited and there is a contrary decision of another II th Court this Court is not bound to follow the Allahabad High Court and should apply its own mind to the pont in Sue (Nor nani C) BADRI LAL K. RAM DAS 1934 J 10 fb) When there is a confct of Opinion i point amongst the various Higl, Courts the Alla abad High Court view will generally be preferred but not always audi nece sinly (Broomfield J. () kuadimS OF DURGAH KHWAJA SANNY, DLWAN SYED ALEY RA UL Precedents-llahabad High Court decisions to be follouid Precedents --Conflict.-Ally hur view prevails.

·1 307 AJMER LAIV DIGEST. 308 PRACTICE-(Contd ) PRACTICE - (Contd) (c) Since Ajmer Merwara has til Procedure-Admission of docu recently been subject to the Allahabad ment-Without proof, in absence of High Court the view adopted by that objection-Admissiblity cannot be court, where there is conflict of opinion, ( questioned should be adopted here (Barlce ). C) MST. NANI BIBI V MAIIMAD ALI When a document which would on 1926 S, 25, proper proof be relevant, is admitted in evidence without such proof, but without Procedure objection, no party can afterwards be -Procedurc- Judge indialıng a docit heard to say that it is inadmissible for ment-Should make clear whether he is want of proof (Norman J C.) MISRI LAI CHAND MAL admitting it 111 cvidence or marking for *1934 J. 50 it ntification When a judge initials a document he Procedure-Court Fees-Deficientshould make it quite clear whether he is Appeal-Objection to admitting it in evidence or marking it for The hearing of the appeal is a proper indentification (Norman JC) Phool time to urge the objection that appcal is CHAND V. LIKIVI CHAND time barred as deficient court fees was 1936 | 22 paid after Limitation (Norman J. C) -Procedure-Surt for recolery of Hira LAL » Hazarı MAL JETH MAL. moncylent--Promussory note in existence but not allmossible for insufficiency of Procedure-Interlocutory applica stamp Paintiff not bound to refer to il: t1on1 Where the plaintiff cagnot sue on a When an interlocutory application is promissory note on account of its being presented not to the Judge in Court but to inadmissible in euidence he is not bound to his office, there is no duty cast on the refer to it in his plaint for the recovery of court to let the applicant know what money lent 1934 AN 837 Dist (Norman orders have been passed on it It is for C) ONLAR BALLABII GIRWAR LAL the applicant to come himself and enquire. 1936 ) 37. (Norman C) ABDUL NABI KHAN v. -Procedure-Immotable property GLALRAL MANAGER, COURT OI WARDS subject to interim attachment-Court has no porrer to order sale under Crul -Procedure Valuation Appeal- Procedure Code Doubtful-Ask Court s opinion 6) 16 *6 ) 7. Under the Civil Procedure Code a Court has no power to order sale of immov able property subject to interim attach ment (1) cston J.C) ABDUL LATI v. AUMAV IILSAIY. 1935 J 77 \Vhen it is doubtful hon an appeal is to be valued, the proper course for the appellant is to ask for the opinion of the court (Norman C) MIRA LAL BAZARI JAL JLTI MAL. 6J 16 ·309 AJMER LAIV DIGEST. 310 PRACTICE-(Cond) PRACTICE - (Concludet). _Procedure-il'irresses-Their rencat (c) Irconsistent reliefs can be claimed callerdar cc 1111st bc $ciclos courts the alternative (Hackl, J. C) ARSING: DAS V. VARAIS DAS The courts ore a dats to stresses to 5 J. 73 s3ve their tenczted atlerdince and then *?y are present thes must, il possible Le -Relief-Defendants particular status examired and allowed to go ll this is not picadal thich uould malclum liablc cot done ard Bittees are recalled it is - But court bound to take judicial notice an abuse of the process of the court and of that status-Defendant liable act of ortres:0 (Hurghs J C) Vist | PIIAGNI ASA RAI (b) 1o allon defendants to escape a 3) 21 liablity by an onuission to plead a status which is there by refusiog to take ---Procedure-Casc fixed on holias-judicial rotice of ? rrouision of the Party 1101 present on ncxi 1. or long day -- ! sintutory 12 would be an abuse of the No default ol apperanca powers of the Court and a defeating of the ends of justice sithin the meaning of Fixing a che on a holiday ind absent S 151 C. PC (Iurphy J C) MOTA ID8 a party on the following day is v, RAY KISHIL improper (Vurplus JC) IVAYL DDIN 1925 S. 49 v. FIRU VALJIBUIAI RATANSI 1J 9 Review, See, CP.CO. 47 -Procedure-Security - Verification of-By clerks of Vakıls-Not proper See, Notification by J C 1934 J 7 (N, S) Revision See, CPC-S 115 Relief Trial Relief. Also see, 'C. PC-07, R 7 Trial of suits-Theory gor erning provisions of Code of Civil Procedure- Rules for guidance of courts--Parties 11ust enter Tutuess Box -Relief-Court should grant that relief it can Sce J C s potification 2 J 54 (GS) Witness The general rule is that a court should give what relief it can (Norman JC) TEMPLE O SRI RAM CHANDRAJI Y NATINI 1936 J. 134 Sec Practice--Evidence PRE CMPTION, -Relief-Inconsistent reliefs can be claimed Şee, Ajmer Lays Regulation ·311 AJMER LAW DIGEST 312 PRINCIPAL AND AGENT PRINCIPAL AND SURETY-(Concluded) -Agent s authority to sell equitable principles on which that section is founded do apply, and a discharge can In the absence of instructions from be given to the surety, 1930 Bom 122, his principal, an agent has no right to sell 1930 Lah 896 and 56 Mlad. 625 Foll (Norman C) F CHAMPA LAL Ghisu (Normal JC) NATH MAL Y. ABDUL L4L v F AJCI RAJ SHEODAN SINGH HAMID. 1934 ) 75 1936 J 1. Station laster 118 no authority to bud Railway to pay compensation Court materially altcring the terms- Surety is discharged (c) Station Masters and Traffic Inspect ore have no authority to b nd the Ralu? Administration to pay any compensat on If the Court by its action materially ffects the terms of the surety bond, to consignees (Murphy J CIB BACI Riv FIRU JAVNA LAL RAV MINAS thout the assest of the surety, the latter is discharged, 1935 Nagpur 258 1925 S 14 Approved (lorman C) Naru MAL I ABDUL H LAJD 1935 J. 1 PRINCIPAL AND SURETY -Surety bond not exccutell som Also sec Evidenre Act-S 19 taneously teath Principal boid-No Admission of liability by pripal consideration against surely after termination of trans rction is reletant thongli 1107 con clusit c If ? surety bond is not executed simul taneou ly with the principal bond, the An admission of a principal does no surety ship is uit! out consideration (Jolly cease to be relevant against the surety 3 C) DA14 BILAL D OSKAR SINGH because it was made after termination of *3 ) 3 the transaction for which the surety had bound himself But such admissions me not necessarily conclusive, 5 AL 142 Diu 20 I C 337 Foll. (Norm mJC) PRIVY COUNCIL BADRI LAI 1. RAN DAS. 1934 J 10 Appeal By Prisoner under sentence of dith Sue Tonification If section 135 of the Contract det not arlo alle to a bom! guten to Court, the cguntable frucifles on luth. section is basetafi's 193; 13 (N S) -Rule 9- If section 135 of the Contract Act does aot apply to a bocd sisen to the Court the See, 'C PC-O 45, R, 7 ·313 IJVER LIV DIGEST. 314 comin.es POSSESSIOX. PROVIDEST FUNDS ACT (1925) --Could. Soit tut 1.-12) of poss055101 — Taller that nomination will onestule the 1), 11 Ch Chetic /?11960ri's title of the ordinary lw of succession (Vormian las 'cocirc 'or sortes In JC: BARTLET I DAVODAR DAS, VIR 1936 J. 29 Teeny cinchal'erg.slunnits title 1. ExplICs, Foll (Bulee -S 5- Tol applicable tollen no out 11.1 RAVASI TINT S4100 standing nomination 2 J 27 When nomination under Act IX of 197 25 revoked by S *9 of the Indian Surces ion Act by marriage, S 5 of Act PROVIDEST FUSDS ACT (XIX OF 1925) Ich 125 has no application, because tiere i is not 11 the time when it come -S 3 (2)-P'rounden Immonet in u to force any outstanding nomination, 11. hods used111 1713 flutti OR 69 Disc (10890» J CI BRAY (GI OI GI HLV BHAR, Mis 6 J 60. Annica its' inther 15 1 depositor in ? Pros dent Fund Ipplicants were hs Execution sought against PROVINCIAL INSOLVENCY ACT (V OF mones which stood to his credit. 1920) Held, the applicants take the money S 4 (31-Debtor's 111 motable free from any debt incurred by their doce sed father, 1931 Sai 797 Not property cannot be sold before adjudi. Applicable cation (\orm ur J C) YUSLI 111A v VADAK BE. 1934 J. 41. Insolvency Judge has no jurisdiction to order sale of the debtor's immovable S 3 and S 5 (1)-Tiability to property before adjudication The Section fxts us of the slucusu- Vauc ! merels authorises the insolvency Judge to decide objections and questions raised by Table but not a dependant third parties Uleston J C.) ABDUL Section 3 (2) cannot be confined to LATIT v AHMAD HUSAIN 1935 J 77. cases where there is O nomination nominee is a person to whom a dep sit is -S4-Scope-Only debtor's saleable payable under the rules of the fund and interest can be sold therefore if he is a dependant he is entitled to the protection of the section 1 here S + is provided in order to give a is a inaterial difference in the meaning of finality to decisions of the Insolvency the expressions 'shall vest in' and "shall Court on question of title. The third receive absolutely". The former implies clause does not create any extra ordinary that tire deposit is not part of the deceased s power of sale, but permits sale of the cetate and so is not liable to debts, the saleable interest when the Court does ·315 AJMER LAW DIGEST. 316 PROVINCIAL INSOLVECY ACT (1920), S 5 not thiul it necessary or exped ent to decide questions of title. (Il'eston JC) IBDUL LATII V AHVAD HUSAIN 1935 J 77 PROVINCIAL INSOLVECY ACT (1920), s 33 The word debt includes a secured debt A debtor s petition under section 10 can Therefore include secured debt to make up the statutory total of Rs 500/ (Nor man J C.) BHAGHAV DAS v KANA 6 J 44 --5--Insolrenly court is not court of ordin try Ciul jurisdiction - Proti sions of CPN apply as far as incor porated in Prouincial Insoltcncy act -S 20-od interim Recerter-Ap pointment of—No notice to creditors (b) An Insolvency court is not a court of ordinary Civl jurisdiction and the provisious of the Code of Civil Procedure apply to it only in «o far as they have been incorporated in Act V of 1920 (Barlee J CIR DAJI Y GR Hughes 1926 S 31 For the appointment of ad interim Receiver Do notice to the creditors is necessary (Jolly J C) RAVCSINAR LAL | LAVVI NARAIN *3 ) 2 S 27 (2) and S 5-Court can extend trne for discharge eten efter the expiry of the tune originally fixed -S 5 and S 27 (2)- Court can crtend tinie for discharge cien after cxpiry of the time originally fixed Sce S 5 above S 28 (5) Lotety of salary tests in Recciter A court has power to extend time even after the expiry of the time originally fixed 51 C 337, 7 P 375 53 AL 285 Foll (11 estonj C) CHOUTI HAL BILAIRON IAL BHOPAL SINGII. *1935 ) 43 (d) The ording of S 28 (2) of the Insolvency Act is clear A moiety of a public servants salary vests the Re eller and lie has no power to leave any of it in the ipsolsent s hunds 10 A 213, 38 IC 110 and 21 IC 90 Rel (Barlu. JC'IR DAJI V GR HUGII S. 1926 S 31 LOS 10 (1)-Question not hether debts can le satisfied immediatel but tchellier assets locked up The question is not whether the debts $ 33 & S 59-Schedule rights or can be satisfied immed htely out of the trongly framed-Paiments cannot be assets but shether the 7 sets are so locked questioned up that ti e debtor will not be able to pay at the time he is called upon to pay If 7 receiver makes a payment ton ards (11 eston] C) VOILAS LALI RATSA a debt which is entered in the Schedule 1935 | 51 framed under S 33 such payment is 7ccording to las though the -S 10 (1) (al-- Dcht Includes debt is one which should not line been secured debt entered in the Schedule et Schedule even ·317 VVER LAS DIGEST. 318 In the PROTISCIAL ISSOLVECY ACT (1920), S31' PROVINCIAL INSOLVECY ACT (1920), S 56. whether tightly c: sorgis framed is --S 42 (a)- Discharge-Grant of-- Hes Judicita 25 rezuds av mer s actualls On rument of eight «ms rinde under it. (horman JC) Badri Rufu : BABITIN 111 6) 23 Ordırarily in insolvent should be gran ted his dis horge on posing eight annis --S 31-Debi no birrel it com in the Rupee (Ileston C) RASHID hil Sal O DARAL IIChcement of Proceedings- Docs not 1935 J 86 becomc beme! by lapse of loric -S42 (fi-Speculations-Vlust ou Adet: no! barred at the commerce rush and herdous ment of the Incoliency proceedings docs not become time barred for the purposes of The d-glings may not have turned out to el roceedings by any lapse of time well bit for the purposes of S 42 (f) the Uols BILARI VAL CH 11 speculations must be rush 100 hazardous SYLSTION (11'iston JC) RASHID ATVAD KAAV V *3 J 2 SILU DALAL 1935 J 86 -S 35&S 37-Adjudicahon amulod -S 43 - Vo automatic discharge on --Refund of moneys pud-Inherent failure to apply poters An annulment does not take place Tosolvent apphed for discharge The ipso facto ou expiry of the time fixed for Judge annuled the adjudication unders applying for dischuge (IVeston J C) 35 on the ground that the insolsent had CHOLTI VAL BHAROV LAL Y BHOPAL pot been rightly adjudicated an insolvent SIGUI as the major portion of the debts were *1935 y 43. due no fron the insolvent but his father Subsequently insolvent applied for refund -S 56 (2) (6) --Recoilers Com of moneys paid out by the receiver to the HTSS101 creditors of his father Ibis was allowed under S 37 Held (1) though S 37 coes When an encumbered property is sold does not itsell authorise an order of the by the Receiver in bankruptcy of his own Dature made yet 1a so far as such an order inotion the receiver 15 entitled to his is based on the saine grounds as the order commission only on the bilance of the of annulment itself the court has inherent sale proceeds which is available for distru powers to make it (11) such an order must bution among the unsecured creditors be made at the same time as the order of But when 1 secu ed creditor comes to angulment and pot subsequenily, 1933 court and shs that the Receiver should Pat 84 Dist (Norman JC) BADI sell the mortgaged properly be does LAL V BAKHTAWAR ALI consent by necessary implication to the 6) 23 Receiver getting his commission on ·319 AJMER LAW DIGEST 320 PROVINCIAL INSOLVEJY ACT (1920) S 59 PROVINCIAL INSOLVECY ACT 1920) S 78 whole sale prceeds (Norman JC) S 75 - Rersion lies BIRDH MIAL, LODHA RB PI ABHU (a) S 75 of the Provincial Insolvency DALAL *6 ) 6 Act follows the wording of S 115 of the CPC and an aggrieved party is entitled to file a Revision application tinder it to S 59&S 33- Schedulc rightly or the High Court (Barlee j C) JR u rongly frame I-Payment cannot be DAJI I MAJOR G R HUGHES questioned 1926 S 31 Sou, S 33 above S 78 (2)--Prot 150-1Vord Pioted refers to proof of debt tulder S 33 ---S 66 (2) --Recciter can fix allowance ri e word 'pro ed in the proslo to out of moicly S ction 33 which lays down that after an 29 judicat on has been made all persous (c) Under S 66 (2) of the Insolvency) lleging themselves to be creditors " Act the Recelier is empowered to make respect of debts provable under the Act an allowance to the insolvent for his shall tender proof of their deb s 1931 maintenance out of the moiety of his pay Nag 282 and 1929 Cal 157 (2) Dist attached by him (Receiver) 10 All 213 (Norman ; C) ChutAR MAL V Lack 38 IC 410 and 21 IC950 Not Foll MAN S 66 (2) 15 independent of S 66 (1) of the 1936 J 15€. Act (Barice J c) J RDAJI y GR HUGNIES 1926 S 31 PROVINCIAL SMALL CAUSE COURTS A T. S 75 (1)-- Person ausreel -llcan (IX OF 1887) ing of-apocal fucs not lik oil mere error S 17-Security deposit within in procciura tec - pplication is in time A person agrered inust be nmin 50 long is the deposit or curity who lins suffered ? legal grience a man required under Sect on 17 of the I rouincial against wom a decis on has been pro Small Cruscs Courts Ict is furnished ithin nounced which has stronglully deprivedtle time preserited for the 1994 (the (Hartlis him of cometh ng up «rongfully refused application it is within time him somthig or wrongfully effected his JO JAI htv Gus LAI title to conching 1 J 14 A person cannot be said to be 15grieved by a legal error in an-S 25 procedure onls which does rot affect his Error of Law Gubstactile Tihts (horman C) BADSIAll BCIN Finding of Fact VI HIRVATUA SWALIT laterlocutory order 6 ] 32 Miscellaneous, ·321 AJMER LAW DIGEST. 322 PROVINCIAL SMALL CAUSES COURTS ACT PROVINCIAL SMALL CAUSES COURTS ACT (1897), 5 25. (1837), S 25. Error of Law I disagreed with it (lacklinj C) Streo VARANTI HLAVA Dria S 25-Error od 1.1--Tlus scelt 1 5) 57. 15 tider than S. 112 of CPC-Hindi Court will interrere mith i roig Iccasion Finding of Fact. OM Question of Limon ~5 25- inding of fact-Interference aniler inceptional circumstances The rule un let hertins of the t'rry 11-0121 Call (ruces (our It not I indings of inct well lie interfered with Nimilar to 115 of the (exlr of Cou onls under exceptional circumstances, 15 Proredite In applications under 5 212 and 192, AWL) Supplt. 17 of Provincial SCC Ti points of in Referred. (11 estou / C.) CHUNAI LAL 2011 oluns jurisdiction, ble (onstantly SiCO PRASAD beca allowed to be ruineu *1934 J. 143 There is no antithesin between us and -S 25-/ udiny of fact-M1sdirec justice The object of law is to cure I non by Judge-Interference justice An decision which is contrary Visdirection by a judge amounts to a statutory I cannot be described 15 substantially just, 1925 I VIL] SupAll 6 mistake of lau (Norman J.C) MANGI Not Foll (Norman JC) DHAN SA LAL I LAL ). HUSAM V RAM SINGH, 1934 J 31. 1936 ) 68 S 25-l'inding of Fact-Decision S.25Irror of Lat. - Il rong deci inequitable-Ihgh Court should inter sion of Limitation-- Vo RT ISION fere (6) Axrong decision on i question of Though in revision it is not usual to Limitation is not per se ground for inter go into the merits of a disputed claim yet fering in revision either under S 115 of the High Court should interfere if it appears the CPC or S 25 of the Small Causes that the decision of the lower Court is Courts Act, especially when substantial inequitable (Bailec JC) Form NOOND jostice between the parties has been done RAM JAGCAN NATH Y GULAB CHAND by the Lower Court Murphy J C) 2 J. 31 SANWAL RAN V MAVJE: han. 1925 S 6) -S 25-'inding of fact-No inter frience--Ercept when 10 eurdence or S 25--Error of Lati --No inter finding impossible or percei se ference of Judicial authority Lien in Revision under S 25 of the Provincial Small Causes Courts Act, it (c) If there is a judicial authority for is not the practice to interfere with findings the view taken by the Small Cause Court of fact unless there is not evidence to, the High Court will not distrub it even if it support the finding or unless the finding is ·323 AJMER LAW DIGEST. 324 PROVINCIAL SMALL CAUSES COURTS ACT, PROVINCIAL SMALL CAUSES COURTS'ACT (1887) $ 25. (1887), S 25. impossible and perverse, 1925 ANI 172 Foll loterlocutory order. Even the fact that the Revisional Court may have taken a different view of the LS 25- Interlocutor y orders-Rery evidence is not ? justifiable ground for sion lies-- Prouisions uide interference 481 C 907 Foll (Baler) C) FIRUNC KANKARIA & CO v MOHAMED (1) The provisions are wide and even HUSAIN, interlocutory orders are open to revision 1925 S 17 under it (lacklist J C) MAN VAL V GOG RAJ. S 25-Finding of ract Ordinarily 5 J 1. no interference (a) The whole object of the Provincial Miscellaneous Small Causes Courts Act is to provide a comparatively cheap and speedy machinery -S 25—Judgment-Plaintiff prozes for the disposal of small money claims his casen-Nothing to excite suspicion The intention of the Legislature is that Yet surt dismissed—Judgment must ordinarily the decision by the Small Causes indicate point on which surt dismissed Courts be final (a) In a case where there is nothing to (6) Under S 25 of the Act the High excite suspicion and where the plaintiff has Court is not intended to perform the func giảen such proof of his claim as the law tion of a court of appeal and would not requires the plaintiff is entitled to have ordinarily interfere on questions of pure some indication from the Judge of the fact point on which he dismisses the suit, 23 Bom 334 Foll (Jolly J C) NEMI (c) The trial court is in 1 better position CHAND GULAB CHAND V. NATHIA to appreciate the esidence of witnesses 5 J. 7 whom it has actually seen and heard and of the High Court interferes on 1 pure question of appreciaton of evidence it 25-flant cague- Defendant would stult is the whole object and inten not getting it cleared up-Plea cannot tion of the Act be taken in relixion LS (d) Points in issue in Small Causes A pluntiff should not be allosed to set Courts arc decided on very meigre evidence up 1 ciuse at i ariance with the plaint, but and the correctness of the decision may when a pluint is umbiguous and the defen often be open to doubt but the mere fict dint takes no steps to get the ambiguity that the High Court may be inclined to cleared up the defendant should not be Atrile at A different conclusion is no permitted in ression to set up that amb ground for interference Uolly J Ciguity (lormar J, C) PANCIJU LAL HALLU V G1919A VIA MOITAY LAI 4 ] 66 6 J 39.

·325 AVER LAW DIGEST. 326 PROTIXCIAL SMALL CAUSES COURTS ACT PROVINCIAL SMALL CAUSES COURTS ACT (1857), S 25 (1897), ART 35 -S 25–Onier by Small Cours Court of ? Small Cruses Court under Art under S2, CPC --Prieron line 31 It is only alien 1 elendant is alleged to hnie nctuulls received the profits belong la revs on would lie 1911nst in ing to pluntiff that the suit is burred under onde- ck the Small Carses Court under this article (Jolly J C) Choga LAL v. 95CPC as 104 clouc (s) has no JAISARAIS polation to orders of thıt Couft 501 *3 J 5. C 896 Foll (Biker juriRyc! -Art 31-Scope HAN ASIA & CO MONTAVID IL SSAIS 1925 S 17 Irticle 31 is not applicable if there are I no Ulegitions that the money sued for Art. 8-lymer Verturi-SCC 176 recented by dcſendunt (Baker J C) con in only sunts for house rent-They SAMEER ALI V ABDUL AZIL cannot try other classes of rent sails 1 J, 25 The Small Causes Courts in timer Verwarı ne not been invested with powers to try all classes of rent suits Thes can onls try uits for house rent (Jolly JC) VSI DERSAS Dass V GLLAI CHAND *3 J 4 -Art 35-Damages for Defendants refusal to allou plaintiff to irrigate fields (a) I suit for damages for refusing to allox the pluntiff to irrigate his land from a certain well is cognizable by Court of Small Causes 25 B 85 & 25 AL 103 Dist. (Baher JC) KAN MAL V LANIMI CHAND 1926 S 17 Art 34-Clain of money under quard 19 cognisable Art 35 (11)-Scopu (a) 1 suit for recovering money awarded by an Arbitrator is congnizable by Small Causes Court The fact that defendant impeaches the award as being in alıd does not oust such jurisdiction or preclude it from adjudicating on the validity of the award, 42 All 169 & 45 Bom 318 Rel (Baker C) KAN MAL V RAJ MAI 1926 J 14 In action under S 235 of the Contract Act is an action in tort Norman J C.) E CUANDAY MAL MOHAN LAL V F BHOLA RAM PITOOL CHIAND 1934 ) 79 -Art 35 (11)-Test of whether plaint discloses a criminal offence -Art 31 --Damages or mesic profits for use and occupation of horse-Cogns ahle by SCC-IVhen defend it actually received profits belonging to plamtiff sit barred The test of whether the plaint does or does not disclose an offence is whether the statements made in the plaintif proved, would by themselves and without proof of any further particulars ini olie the defen dant in a conviction of a criminal offence (Vacklis JC) SIED FAZAL HUSSAIN V. THL DURGAN CONVITTEE. A suit for recovery of damages or mesne profits for the use and occupation of a house is not barred from the cornizance * T 1 ·327 AJMER LAW DIGEST, 328 record te agus PUBLIC GAMBLING ACT (U. P. ACT POBLIC GAMBLING ACT (1925)--Cond. OF 1925 ) Si Instruments of gaming'- Applicalion--U. P. Public Gambling Includes tickets used as memoranda to Amendment Act (1 of 1925) cntended to Ajmer Mertara Tickets used as forms of memoranda to Sc, Notification by Chief Commissioner record as wagers are instruments of gam 1 J 16 J.S) log, 63 1. C. 852 Foll, 17 B 184 Dis (Bakr j c.) SURAJ MAL v. CROWN. -S. 1-"Common gaming house' 2 J. 10 Case under clause (1)--Not necessary to --S 3-Not necessary that encry protc that kepur makes profit transaction should take place in gaming house When the case falls under clause (1), 1e when the gaming is on digits of the It is not necessary that every transac sale price of any commodity, it is not tion connected with giming must take necessan to prove that the heeper of the place in the house, 47 All 506 Ref house makes a profit out of the gambling (Balır ; c) SURAJ MAL v. CROWN. (Norman JC) CROWN v BHXUDA RAM. 2 J 10 *1936 J 214 -S. 6-'Instruments found it homsc- -S 1_'Instrument of gaming". Presumption that gaming carried for Joncy when used for betting is such benefit of owner "Instruments of gantung Instrument of gaming being ſound in Money when used for betting becomes the house, presumption arises under S 6 an instrument of gaming (Norman c) that it is a common gaming house and so CRONNI. BIUDA RAY it can be presumed that giming is carried * 1936 ) 214 for the benefit of the owner, 15 d. 671 & 26 Cal. 1609 Foll. (Bahur J C) SURAJ -S. 1-"Instruments of galing MAL V. CRQUI. Includes coms inscd as stale monej - Houscini uhich they so 118cdl is "common 2) 10. framing house RAILWAYS ACT (IX OF 1800) Ilso sec, Principal and Agent. -S 54-R918 not altra tires : Veins of gaming include any coins used as stake money They may also be regardled 74 mstrements of gaming and the house in which they huic lieen so used must be regardeel 15 7 common game kouse (Hacklit J. C) CROHI Y. HARDFO *5 ) I (11) Rule 59 of the claesification of goods tulcs is nut ultra vires. (Murphy J.C) Sun CHAUD Satis MAL 1 B.B, . Cl. Ri.

·329 UVER LAW DIGĽSI. 330 RAILWAYS ACT (15901 S 12 --S 72-impeclict-Inss RAILWAYS ACT (1690) S 77. their remedy under the form (11 eston JC) GAVE 9711 LAL NANNI LAL BBCI Ri Co 1935 J 38 The film ma pole loss siticily belere it can clum the l'otection of a The role ni vij Foll(lormir JC) B1 (CIBISHAN LIL Voti LAL S 72-Risk lotetorni -Vis con inet-Burden of proof on consignor 6) 5 on --S 72-Risk To-forn B-lors deli ery-Ral 11 #11151 proto loss - Vare no Irucif: at Istition is not loss The consignor has to prove misconduct the part of Railways Company s servants (8 rman) c) B 13 ACI BISHA LAL VOTI LIL 6 J 5 in a sui lor non delivery the rails as S 72-Risk Note-Form H-11s con inci-ltfect of must prove loss to claim protection under th-Risk loc B Vore than mere non receipt at destination is required to prove Misconduct on the part of Railway 19«s. (Vurphy JC) BANANISA LIL Administration does not render the Railway PERDEEN CHAND) THE BN WR Company liable under the Risk note, &B BC I R JIB 10), Foll 1990 Pat 559 (2) and 3) 3 19.31 Cal 7,1 (2) Diss (Norman JC.) BBCIR v BISCY LAL MOTI -S. 72-Risk Sote- orm B-OuLr LAL charge by listalc foes not cancel Rish 6 J 5 Notc 72-Risk not-Torm 1-Burden (a) An over charge of freight at of proof - Railway must prove Loss--- Railway Risk rates al dest nation by Non delitcrs dous not awtount to loss mistake does not affect the contract embodied in Rish Vote Form B (Worpliy Vere non delivery does not amount to J.C) BB&CIR FIRM JAVNA loss In suits based on non delivery the LAL RAM NIVAS Railway Company must grove loss affirm 1925 S 14 atively, B 1201 45 All 30 51 C. 615,3 % 1LJ 3,6 P 189 Foll 1926 -S 72-Risk Notu-Iorm H --Scopu Pat 16) 1926 Pat 118 1926 Pat, 190, 1926 Lal 91 Diss OP 718 Ref Under Risk Farm H a plainult can (Norman ) ) BBCI Riv succeed only on proof of misconduct of S11 A RAV JODHYA PERSHAD. the servants of the Railway admiaistration 6) 64 The proviso in Risk Form H is not con sistent with the substantive clause laying WS 77-Notice of ciarul mundor S 77 down the condition of liability The of the Railway Act 19 r10 rolice of sust proviso is likely to mislead persons seeking | under S. 15 (2) of the Limitation Acti" ·331 AJMER LAW DIGEST. 332 RAILWAYS ACT (1890), S 77. RAILWAYS ACT (1890)-Concluded. S 15 (2) of the Limitation Act | --S, 140—Notice superatree prescribes that the period of any notice The language of section 140 of the required by law shall be excluded from Indian Railways Act is imperative and a the period of limitation Dotice complying with its terms is De But S 77 of the Railways Act does cessary before a suit can be brought against not prescribe any such notice It only a Railway administration (Murphy JC) contemplates a submission of claim. The B.B.& CI. RY V. MOHAMMED IBRAHIIV period of such a submission cannot there- 1 J 10 fore be excluded within the meaning of ---S. 140 and S. 77-Notice on agent S 15 (2) of the Limitulion Act, 701 C 109 Not Foll (Mac in J C.) BB'&C.I. e, S 77 above RI V FIRY LATVI YARAIN CHAND MAL 5 J 53 RAILWAY RECEIPT -S. 77 and S. 140--Notice on Agent -Transfer of titlc-Can be effecteil hy endorsement and not delitery Under Sections 77 and 140 a notice of claim must be served on the Agent of the Railway. (Iurphy J C) SAHAB CHIAVD SAINS MAL V BB & CI. Ri. 1 J 1. A Railway receipt is an instrument of title But mere delivers of it is not sufficient to transfer the title. There must be an endorsement 10 writing on it. (Jolly J. C.) The Secretary or STATE V RAVDHAV Das hALYAN MAL *3 ) 5. S 80-Liablity of other Railway REFORMATORY SCHOOLS ACT (VIII OF 1897) A Railway to whom the goods were pot in the first instance consigned canoot be held liable unless the loss is proved to hue occurred on its system, 231 C. 22, 18 1. C. 294, 1926 Lal 116 and 1926 All. 299 Foll (Norman ) c) BB&CI. R.I.SITA RAV AJODHYA PERSIĄD. 6). €4 S8.Poner of Magistrales specified Sec, Notification by Clusel Commission er. 1 J. 16 ( S) -S 80–Rocelting Raila 113 not agent REGISTERATION ACT (XVI OF 1908. The Risay Company receiving consignment for despatch to a place on apother Railway is not an agent of the Rails ny Company which has to deliler it, 1924 Post Sl Not Foll (Iorman J.C) 13 1 «CI.R, Y. SITA RAV AJODIYA I'LESF 411. 6 J. 64. -S 2 (7) and 17 (1) (d)-Qabulint for more than a star-Registration compul sory Lense includes a Qabuliat. (Norm. JC) ALLA DIA 1. HC SS415 Banner *1936 ) 213.

·333 AJMER LAW DIGEST. 334 PEGISTRATIOS ACT (1908), S 17. REGISTRATION ACT (1998) – Concluded. --S 17(.)- Vua roil-Confr101 10 Suit founded on a contract contained ollat -- Rocs comtenry Rerustno in an unregistered qabultat for more than a seur: licht, the lnu cendence presents I contract inccllect Hurfi rent require oral evidence of that contract being given. es coralsari regi tortion l-6119€ Lisa Sirce a lense includes a qnbulint and the honest atins nut of 11-d (Jolls ) c) qabulint 175 for more than one year, thie V SLNVISADAS (ILLA1 C11411). qabulint cannot be sroied ercept as *3) evidence of put performance cl a cooract for the purpose ci Section 53 A of the Iransfer of Property Act, 62 C 291 Foll, --S 17(c)-Receipt of morts scones - (Tornan JC) AILA DIA ITUSSAIN Registration in sary BALSH *1938 ) 213. (ri Ofer--A mere receipt of mort. fake mones dors rot require registration (Vurplis JC) DHASA LAI RATAS REGULATION LAL 1927 S. 42 Sac Ajmer Regulations arranged in the Alphabetical Order --S 17(d)-Rent Note for six months Docs 1101 require registration - It Is admissible in cuidance RES JUDICATA See CPC-S 11 REVIEW. The sert pote was for 6 months only and so did not requre registration under Section 17 of the Registration Act and not being a lea'e d d not require registri tion under the Transfer of property Act (Norman J.C) VID IBRAH!! Y ABDUL KARIM BEC, MIRZA. *1936 J 209 Ste CPC-O 47 Cr, PC-9. 369 -S 17 (1)(d) and S 2 (7)- Qabultat SALE OF GOODS ACT (III OF 1930). for 1 ore than a year-Registration S 42—Burden of proof compulsory When a defendant takes deliver, he See, S. 2 (7) bove. is bound to prove that he had intimated his rejection within reasonable time. -S. 49-Unregistered Qabuliat for What is reasonable time is a question of more than a jcar-Oral evidence not fact (Norman JC) KISIAN LAL V. admissible except as evidence of part RAM DAYAL KHAJU LAL, performance *1934).

·335 AJMER LAW DIGEST. 336 SALT ACT (XII OF 1882). SET OFF. S.9–Offence under Salt Act-But Also see, under "C. P. C.-08, R. 6". not undr Penal Code -Still Section 117 1. PC applies --Equitable-Court fees not to be pard on cquitable set off (a) The punishment under S 117 No Court fee is payable on an equitable 1. PC for abetment of an act which is set off. (Norman J.C) SOLEVON D'Roz an offence under the Salt Act and even ARIO Y. JANES D ROZARIO (Jolly I C.) though not an offence under the Penal 6 J. 60 Code is not illegal. S. 9 of the Salt Act does not embrace all abetments but deals only with simple cases of abetment by SHEBAITS, individuals while S. 117 I. PC applies -Suit against shebait-But defendant to serious cases of abetment by public at large (Jolly J. C) CHAND KARAN not described in totle as such-No non- SARDA ADIOCATE in re CROWN v. P. joinder Sona\ LAI. A suit against a Sbebait of a temple is 4 J 1. not bad for non-joinder of the temple merely because the defendant has not been described in the title as Shebait. (Jolly J. C.) DADYAT DAS V. MANDIR SRI SCHEDULED DISTRICTS ACT(XIV OF 1874) RAGHU NATIJI. *3J.7. S 5-List of enactments extended to Ajmer Verwara SMALL CAUSES COURTS ACT. Suc, Notification by C. C 1 J. 30 (). S) See, Provincial Small Causes Courts Act co --S.5-U.P Public Gambling (Amend SPECIFIC RELIEF ACT (I OF 1877). "con) c1 (1 of 1925) extended to Amerleruara -S. 42--Plaintiff's possession for loss than 12 years-He entitled to protection Sec, Notification by Chief Commission against trespasser When a person is in las ful posses$100 1 J. 16 (J S.) of a property for a long period of years though he has not a complete legal title to -9.5 and S. 5-A-Bombas Chuldren it, he is cotitled to protect his rosse sion Act (XII of 1921) extended to Amer and enjoyment against infringement by an Ieruara uith certam motufications outsider, 28 C. 831 and 37 J. 293 Foll. Uolls).CRadii Kisic: Y. DULC: Sce, Notification by C. C. CHAND. 1 J. 29 (J. S) 43.32 ·3:7 .JVER LA DIGEST. 338 STICIFIC RELIEF ACT (1577), S 31. -S 54-'14esina ayrime SPECIFIC RELIEF ACT (1877)--Concluded --S.55-Trespass, Trespasser's incorr- 1. Mence- Dumuges not profir rumouls. no trespicers inconiellence is gloud i: drprising plaintiff cfl:s legal Imbi lamic) IV Varill. 1936 ). 81 irar: 1: le. 1... 11 1 Kar : 111 ? ? t?t ? ( Cit:: A. 1935) 41 -555- 111retration of jomt pro 1111 Injection - Proper rund's S5- Pret til #111 la l-ins c! ,117fcr liit te le alt i C. this in coccio Le concediis crrl10 ficutul. 1 Creta - mere dal 10 or instid Oetk. 3 Colemier c micrna'y ir cilit 1th the codiraty confort ricalls I luma eustence not merely accord to the eierant or dun modes clinin bi.ccrding to plan and sober Wd simple rution Ti e ordinary rule is that a mandatory Jun lion is a proper remedy against the 1p, opration of joint property by one Juil under to his erclusive use especially is hen the appropriation is accompanied by 10 assertion of exclusive title (Norman c) CHAVILA JAI NARAIN, *1934). 49 STAMP ACT (II OF 1899) --S 2 (II) and S. 17 An instrument which is stamped after execution is not daly stamped, 6 B. L. R. 0,99 Dist. (liman JC) A1HI RAJ VI SINGI 6). 21 discomfort it may --S 2 (5) Bond winst contum cxplicit cbligation to pay (6) in are of pissile real question always whether the defendait bis a right for lus oun purpo es to put up such 4 CUDVD Cace in that are despite ans cause to the last II's Occupation of his own premises It is no delence to such 41 a vion that the place where the pulsance is created is tlie only place vitatile lor the purpose or that all reasonable care and skul las been taken to prevent il ly obtaining Municipal Comını itees permi(sion and fulfilling all its engineering and health requirements that the defendant is really maling a reasonable use of his own property or tliat Dumerous other and similar arrangements in the same street (Murphy J. C) BUAHAN RAN v Drvi CHIAND) 1927 S. 29. or a khat contained rate of interest, date and signature followed by the words Mones taken Recented Rs. 55'. Held, was not a bond as it did not contain an explicit obligation to pay money, 22 C. 757 Rel. 1929 Mlad 599, 1927 Nag 105 and 1927 Cal 472 Dist. It was also not & receipt. (Norman). C) GHISA LAL v CIOGA 1234 J. there are ·339 AJMER LAW DIGEST. 340 STAMP ACT (1899), S 2. S 2 (23)—Scope STAMP ACT (1899)- Concluded. ----S. 17 aod S. 2 (II). Receipt is a particular kind of ackpot Sce, S. 2 (11) above. ledgment, 1933 All 577 Dist. (Norman -S.35 --Receipt admissible on paya J. C.) Guisa LAL CHOGA. rent of penalty also against Legal Rc 1934 J. 20. presentative of maker: --S. 14--Prolubts writing of second A receipt is admissible on payment of instrument on original stamp: penalty pot only against the maker but also against his legal representative. (a) The section prohibits not merely | (Norman J. C.) GHISA LAL v. CHIOGA the altempt to use the original stamp for 1934 J. 20. a double purpose but also the actual writing of a second instrument on the -S. 35.-Unstamped documentssame piece of paper. (Jolly J C.) Cuitar Admissible on payment of penally ~ MAL SUJANA But not achnonledgment 5 J. 9 (c) It is ordinarily open to tender un. -S, 15-Achiloulcdgwicit duly stamp stamped documents on payment of stamp duty with penalty, but an achnowledg cd-But on back of original bond-Not admissible : ment which is chargeable with a duty of one anna is excluded from this category and cannot be so tendered, 11 Mad, 10 (0) An acknowledgment of a debt even Dist. (Jolly J. C.) CITAR MAL v. though stamped with an anna stamp, of SUJAVA. written on the back of the original bond 5 J. 9. is to be deemed stami and is inad. missible in evidence and cannot form the S. 36-Document admitted But basis of the suit (Jolly J. C) CINTAK susbequcully rujucked in violation, Retro MAL V. SLJANA 5). 9 (a) A rejection of a document which has been admitted in evidence for want of S. 15-applies to second instrument urillen ni pont original stamp papur a stamp in violation of S 36 of the Stamp Act is a ground for revision, 13 Bom. 737 Foll 3 C. 11. N.JS1 Dis (Baler J.C.) (a) The provisions of section 15 of the JuG RAJ MALA RAY. Stamp Act will apply if a second intru 196 S, 26. ment is written upon a piece of stamped mper upon which an instrument charge. Sch. 1. Art. 1.-Scope. able with duty has already been written. 14 13 immaterial whether the second tostru. The sords following 'acknowledgment' ment in fact bears a stamp or not. Uolls are limiting and pot defining. (Vorman J.C.) CINTAI, JIAL I. SUJATA. J.C) Gusti.IL . CHOGA 55.9. 1934 J. 20. son Ines ·341 VJUER LIW DIGEST. 342 Here SCOCESSIOS ACT (XXXIX OF 1025) SUCCESSIOX ACT (1925), S 302. -S2(c)-Print .. ! not to claim grant but to shox that there chroic ritr t 11118110-Islr are 10 assets () When an application for Letters cel 11th c Idministration discloses sufficient right the 1: Alchgl 1 1 1 once to administer, though if another question 9-1597 ya led 11 in decided ndiersely to applicant Intit in risa: c there might technically be no assets of th scalesno the deceased to be administered, yet it I rerron at OL A Cincitorten is rot for the court to decide these ques the mol for pape indd to tions and administration should be granted on plendings 11 c. $07 Foll (Murphy T'ILA r. '7.497!11. л с Vist IMBIBI HARTZ MOTA 2) 43 VMI) Bi -S 214-soc-t cicciriler hea! 1927 S 32 A 371 nonne A!! * S 291-Secmilg-Onts for protec 79 erection armiention to pred s t uut the produc 11on against malpıncticos-ot for talric 10 of roafr rauja !! or property IDDINI SHIAC. MAI The value of the entire property for *1936 ) 211 hich the grant is made is not necessarily --S 214 (1) (b)- 1991 es lici decreo the criterion for the extent of the security. Iolder dics aitlisle, al is smaltes 1 security for an amount which will afford claim on Sawan secara alcherei a seisonable protection against malpractic Tie i ords upon 10 Aplcntion of a es is quite sufficient 1 CLJ 180, 6 person chumirs to be so utlet 1 and 211 C202 Rel Secticn 214 (1) blmern (Broomhaldi C) HARIZ MOITAMMED ut i an applica t100 of a person claim rg on uccession to Bliv \ST AYNA Biti be earned to execute a decrer tint is to 3) 67 say the clause opls applies when the legal S 302-Letter of administration 1100 repte epintise of a deceased dersee holder actually issa l-- Dirichon for mainten applies for Cyccution (ormanc T!! Clay he giten GLLAIS CHA! BASHI STAR I AL (a) Cien s here no Letters of Adminis. *1936 J 218 tration have been actually issued a Court --S. 218 (2)-Rules for pruter ICC his power under S 302 of the Indian (c) A cole adininistrator is preferable Succession Act to pass any order it thinks to joint administrators 1 male to a female necessary for providing for the immediate and one who is accustomed to business to necessities of the deceased s family 90 one who is not (Harplig i MIST that they may not be compelled to borrow AMNA BINT v Hali/ MOJAUD BLI for their maintenance at exorbitant rates 1927 S 32 (11urply C) VIST AVNA BIBI Y Hariz S218 and S 283–Paramount title not MONTAVIMCI) BUI 19 to be gone into where question is raised 1 ·343 AJMER LAW DIGEST. 344 ارگو رارr ۹۱ ۲ ۲۰۰۹ 11 ا کر 115 | 11 || | V HUCCT 9SION ACT-(Concluded) TORT- (Coutil) S 381 and S. 387-Debtor camol I 1911 1 ful qmilion I RUCCC Tron certificates 119 ordminly thi dur of the seals on Adrior to the rate of the derit! ihr die al ife, 1927 / al, 10% Foll. 20 B. Aunut yrt nrertificate int side by a 633 Ref (Vorman / c) CILAVIA LAI darlaratory Allt or queston the corrir itrus i Gun LAI LAJI NAJ 5511 ONA I J-tetil : 1925 A!! 6, itul 33: 73 Approved. 1934 | 75 (Vormal JC) RAN (TIADAV RAHIA KIJIA Damages 1934 J 70 -Damages-ielas once-Driver drites ----S 387 -Diblor in hol nimfer farty-Jacor all the mout and to 1 free-One Pirtien - Nell'of on the inter in thou that 11 teay nol Inc Drhtor 19 not a prognp :) 11y to rliric 10) 110, lis cnice * Loncertoliite proierdins Ihr woril driver om irar off thin rond 11 5 347 me 1919 propre initir an into the ottieron um to hos that rivi rinumuntu torrentitirnir and the Itut du tomes los (Norman not drhtorn of the derriol entic JC) I'RACI y Villular leinu sinni Foll. (normal JCI 1936 ] 71. JAV C11A.DRAV RADIAVISAN -Damages--Joint oulers of (r- 1934 J 70 One muner s101-11 souls the cur 10 fetch a nurse-Drar alls nicyligently BUIT The nurse 14 ilmu- Jout ounier 101 --Appeal-lo perc Commation of To Jihlity soulil for merely Irum thir de feruel ints fx 114 points of a car (n) in nnpaul smoor continuation il nurap ufiny 175 clled lwy one or mores of thir original preceding touril lay the (Nor mjured in rutrust to the rir filior of the plaint 1929 All 21Fol) (Shannon JC) man C) ELACIS X VISINU LAI Mon LAI VOJAS 1936 ] 71. TAI 4J 7. -Damages-01 kr of car sc-lle requests his dalits to fitch at ture- TONT il'lik tal mg the nurse the driter drie Converion the currenligently--The mury Damasco Injurut-- \olubility of the relatne Incroachment Libel ili lunr 1 75 ech, desejurs lilac 1 letela inur - Malicious P'rosecution til mure and toxih let in Trespass the cit tlOnlar On the listin Conversion dari thirrur Arteil nri lihently Conversione rense of thamiljer nur Intel 11c11, nonths ! oul! duc also le on litr al otro full » 1. toltur ariely own to 11- 1 ·345 ALMER LAW DIGEST. 346 י Damages-onligence of surtout 1 1 TORT-(Con!) TORT-(Cont) 11.111icle 11 i 11 the (a) Dumages to nmn s fune (6) D1 ririr.tfcir n nurer (Tormata muze done to the person 2nd (1) Damige J.C.II SINI. 11111 LAL timul property When no physical 1936 ) 71 cumine 114 bten de no question of ine 11! I uxl passat tl lumige arises But when w itt hument is affected on insuffi THIR' din ansiosta on unsiliul cut sounds mpensation is 1x arable Acre row driteistigent il-llius und 1 11tter en little hs what I me the lirl's for mh nek! unigrire desetalxd (Baher J C.) mbus il 14 ITEM C INALTICO). 1:11u4nme VIOITAVOISIN 1" " picuratit, duct 1925 S, 17 (1971, diesem Encroachment -Encroachment-Ouence and ac tahl.! the 11 i it! yulsen Distinction beta.con- Staida (\LI ] (WIRTUVE HAVIL VAL inh --To Constitute Son 11 Aquescence' 1936 ). 100 there must be standing by ---Damages--Liability of master- There 7 distinction between mere lligence of screeni detings igerinst juistence and acquiescence To consti crpress directions of master-Vill mars lute musen e there must be something tcr is labi Cum alent to what is termed 11 legal parlance is standing by (Vorman JC) ut for d2111*787194 the master FATNA MATI! 0 1 the nehmen (of his wei int 1936 J 81. lint hier int Ire tons the -Encroachment-Ilhat amounts to: 1) ar (Sorman It) VITAV VED Construction of 7 stycise is obviously ook hHAN HIVI VAL 1936 J 100. in encro xhment since it diminishes the are of the 100f maunble for use (Nor Damages-Quantum-I or defu man JC, Ribar CUADER V. JAI matory book NARAIS. Wien pluntil suffered no special *1936 ). 49 demues on publication of defamators Libel matter, nominal damages are sufficient -Libel-Demages : (Vorm JC) VIRIA AMIDUDDIN Brg V SMA/DAR ANI There are some cases in which proof 1934 ) 34 of special damage is unnecessary and these -Damages -Altachment on 11suff include the imputation of a criminal offence cient grounds-Compensation is an ard | punishable with imprisonment (Norman able JC) GCORNELIUS Rri. LAKSHMI (1:1) images 1 dided there CHIAVI, classes – *6 J 6, t מן ·351 AJMER LAIV DIGEST 352 TRANSFER OF PROP ACT (1882) S. 43 -S 43- Abundonment of clan in suit 15 nol transfer TRANSFER OF PROP. ACT (1882), S 53 - 52 (as amended by Act XX of 1929) -- Injunction goes e ith the lant Ibandonment of clum in 7 suit is quite different from 1 gift (Vorman C) KHUDA BUTY UMID MAL 1936 J 124. The Inn after wendment of 5 52 by Ict \\ of 1929 15 that the mjunction will 50 with the land (Il cston / C) Bists! 11AR LAL v Bi v Goral 1935 J 67 S 52-Ducrue a mullity-Doctrine of Lis Penilens has no application -S 53—Transfer in fraud of uicki tors--I onlable at option of creditor- But not tord Doctrine of Lis Pendens has no appli cation when decree 15 7 nullity (ll'eston JU) DO KARAV V SUGAN CHAND 1936 J 89 I transfer in fraud of cred tors is vod able at the option of the creditors defrau led It is not altogether void (Normal JC) hisun Paras RAM 1936 J 118 -S 52 (before amendment by Act XX of 1929)— Injunction suit-Plaintiff 1101 to be excluded from benefit of lis pendens unless lic had neglected to take aution on breaches of the injunction- Doctrine ende pundunt of notice to third party S 53—Small part of Transfer for taluable consideration Other part agreement to defeat creditors--Transfer u holly word When a small part oply of the const deration for a transfer in fruud of creditors 15 good the transfer is wholly old (Norman JC) MMOLAR CITAN RAV NATH RAUNVIS 1936 ] 104. ile doctrine of lis pulls is indepen slent of notice to the thusal party and the ctiti contemplated to S 52 existed not for the purpo e of filing notice to the third party but for the puro e of diep 7 liti unt of Irenefit who 175 kuulis of lashes in prosecuting hal cier reineds 17open tolm In an injunction wut usen under the old 55 the pluntoff shoull not le cicladal from the lx nefit of lis sx ndens unles le 11 neflected to the action on reaches of the injunction (Weston JC) BISRI SITUAT LAL Y BY GOIL --S 53-Tri sferor al transfer equally multy of fraud-Suitby frau inland transferuTransferorcan Milfronde laut nature of Irinyir-rror will Sliccle! When two parties are ſcuol equally builty of committing fraud then dele dant must succeed of the intended fraud tas been carried cut 711ci aniju C 5,1 Foll (1) irlee J. C) Vali ALY NATAS AI! 2) 36 1935 J. 67 ·AVER LANV DIGEST. 354 1) 1 TRANSFER OF PROPERTY ACTI 652) S 33 TRIXSFER OF PROPERTY ACT(1882 S 54. --S 531 S 53 I 1176 no retrospective effect ....Siiri P.0R VI] ) (111) Foll 49 . 35 Not Git irriro l'ultic? applicable Iloman) C) SVI 111 HIS CUMMITTI I, I'll 193. J 145. 7-re 1' alt te เ* . IC! llena 1.0.urder (63 S 53-A Tortopedie C'CPC der 53 I the Trailer clipe Il 1 decres heliospotiic etlect ought not to be Inmharan his line icinuied sven to 1 311fute unless an intention to 111 effect is expressed in plain and un TC !ul 17 octua preferred 11 binuous langue Section 53 l of the Jer ().I1. S-file 14 tut the Transfer of l'roporty Ict is not therefore bec:cr thcalextric that TC 10 citit Tornan JC) FILM 1 trailer 1 at is er Ji in VIVIAN VIVISIIDIL. oh U 21. R3 inds 5. Ilman *5) 5 (IU) 11 14 CHAN ki -S 53 A-I qutabl. can bc 14\ATA mucho tu 121 111 Chiont suit 1936 J 104, ut for injunction is a suit in defence --S. 53 - 5411 mar 0.1 for an existing possession An equitable tog Praslina from mult Title obtained under S 53- 1 of the Trans dator 11 fer of Projerty Act is a foundation for an len that transfer tollent 129Junction sut OR 145 Ref (Turmanı Jul 31 Lil v. VII IL CUVMI TILI (Lectut uudet ) 1936 J. 145, Cole of 'n liocedure bel at -S 5 registered sale de d «xccused in leil 5 fasour by the judgment debur Objectius Transfer of complete un nership for a di alluned Suit by objectoi 1 Delice Į rice Sale I rice may be less than the holmer cared defence that sale #15 II 0) Thet lue uſ the prorer, and it may fraud ol sed turs. Ill, it is open to the ne been termed as Naz (Bruguel decree holder to conteud in defence that J.) ALIDIR LILI VINODI LAL the transfer was in fraud of creditors 3) 44 lle need not file a separate suit on beh uf of all the creditors for this purpose, 1, Sale by delitug of posseSSIOIL a total delivery of p $1233ton alueiss ir - 760 Foll (Vorman Jo) A1011AN LA I accutron olunt not hot sufficient v GIRAI LAL *1936 ) 212 Vendor in po session and continues in possession by evecuting a rent note in S. 53-A-Suction ho ili ospuite fr vour of the Vendee There is no delivery ffect of possession and consequently no sale. ۱۱ ۱۱۱ ارا b) S op ·355 AJMER LAW DIGEST, 356 sum > 40 TRANSFER OF PROP. ACT (1882), S. 55. TRANSFER OF PROP. ACT (1882), S 60. ll hen actual delivery is not possible a . mortgage for a exceeding registered instrument is the only method of Rs 100 can only be effected by a register cllecting a sale, 59 A. 936 and 31 C. 207 ed instrument The mete transfer of Foll 35 11. 1158 and 90 C.356 Not Foll possession together with intention of parties (Norman J. C.; RAVZAVI Bui BITUI I. to make a mortgage is not cffectual on the 1936 J 186. ground of the equitable doctrine of part performance, 58 C. 1235 Rel. 201. C. - S.55 (1) (a)-Seller bomm to disclose 100, 10 P. 117 and 1932 AU 259 Dist material defect (Norman ). c.) GHISU LAL V. GORA). The seller is bound to disclose to the 1934 ). 57 buver an material defect in his title, -S 59 A-llortgage decd-Legal rio and failure to do IS. under the presuotolites bound concluding words of the Section, fraucl I he munur s title to a sliare in the property Comienints in a mortgage clecl rc by is a material defect in the title of the operation of lau binding on legal representa seller If there is reasonable possiblity of tres of the parties and it is neither neces litigation in connection with property the sary nor usual to refer to the legal represen buyer is certaink entitled to be put in tatne specifically (Norman J.C) LADU possession of full information on the point RAM V. NATHI, MST. at the time of contracting (Norman J.C.) *1936) 209 hISHL. LAL v. Moti LAL S. 60-Smt for re lumphon-Plaintoh *1934 J. 27. ust prore existence of worlgaga S 57– Scope Quantum of Ludence. I he section applies only when paiment Il here aplar cues to redeem a en midt either before the sale is complete mortgage the existence of the niorigige must be prosec! If plaintiff can show that the sale part of transaction (Vouman JC) StA LAL 1. UVLD) MAJ lie originallhach title to the land, thiet 1936 ) 58. that fact will corroborate such evidenice, as le proluces, of the cistence of the -S 59-Vorigigi created by instru mortgage, but it cannot entirely inke it mient-I)hundant sunod urgue that it place If there is no (udence of ilc has crialud by dulity of possessION mortgage then the men fact that pluntif Vortgage hung xen crented by once had a title is not suficient to proic tlint de fendant - posasiun must lve that of instrument it is not open to defendant to the mortgage (Vorman: J.C.) MANI irgue that it was re ill created by delivers of f*444700 (Norman ] C) LAL . Cuil LAI. Datia VATII, GAVE Var. 1936 ) 121. 1936 ) 54 --S. 60 and S. 3- ortgagee sub morte S 59 (before amendment by Act sagos bsregistered instrumenta-Registra. XX of 1929) -Transfer of posses5101 lusthom so notice to mortgagor-1 asyment to intention to chake morts ahe hot actuall mortgagec extinguish smorlaub (DT 7 ·358 357 AMER LAW DIGEST TEANSFER OF TROT ACT (1652), S 61 | TRANSFER OF PROP ACT (1882), S 107. 11 itir 1 no -S 92-1 schition of mortgage decreeirrita Virici. igurntha 12 Prital sale in course of ls malnihmi - ri mr.hr 111 m tlir purel 76r selfs to shore of mortgagee ritiraterini can! if meriton korea noilor by hann im rerni 1.11nst Joly C) (h) priate ale in the course of cve SPIN 1.11 Sinau CHAND) ution of 1 morile decree is innlıd but 3) 3 if the mornihe der ree has been paid off by the purchases lze steps to the shoes of the --S Gi-(as amended by Act XX cf mfX710 unders of the Transfer of 1929)-1 retrospecti comics l's perts It and can recover the mortgage Inittelrin iri limits 11 unt from the properties old to buni, 19' Pc 101 Relied upon (llacllui c) VIVIDI NILAIY DAS ry 1111 RAVIVA ANI 5J 73 • 1936 ) 217 -S 106—mental Icascs-S11 --S 61-(before amendment by Act montlıs' notice usual XX of 192S) - Consolidation of mortgagesricrel mortgages between sarse arties Vuhrough S106 does not strictly apply Un same prioriy -Suit for redemption 10 ngricultural leases yet in the absence of Vorts as 11 rcdeen all sucht mort pro of of uns seitled custom to the contrary SEX months' notice is usually held to be necessary for their determination (Norman 10 been all morg2664 JC) MI SARI AL V ILI V S MUZATLAR 11 1!1!1 u 1 theme HISSAIN Tieku. Ilies 1 all mort 1934 J 37 hises uticalir 1 Testus ) suby jueut to the morts 15 e in question JOV 190 and S 106-Notice 17 B 6,2 Foll (Norman JC) Bali RAM TAGAY LAL Rent note tor 1 definite period Μο *1936 ) 217 notre necessary by tenint that he had -S. 91-Intermeddler cannot redeem discontinuedl possession (Norman) C) SIRAJU ODIN CUTAR MAS. (6) in intermeddler is 1 person who 1934) 40 interferes wrongfully with property Con S 107 sequently there is a legal bibility on him Trut le 11s no legal right Also see Registration Act SS 17 (a) cannot be allowed in 128 or uity lo 19 mr present tie real on ner ind redeem 1 -S, 107-Rent Note for six_1110nths IN10114,760 (Shannon JCIS UMED MAL BITACVATI, Dons 1104 require registration- +5) 6 (1). I admissible 11 etidence + - Such 1 person ) ·359 AJMER LAWV DIGEST. 360 TRANSFER OF PROP. ACT (18821 S 107 The rent note 175 for 6 months ouls und so did not require restration under Section 17 of the Registration Ict and not Icing n lense did not require registration under the Transfer of Properts Ict Ilorman) c) VID IBRAHIM I. IPour NARIY VIRZA *1936 J 209 TRANSFER OF PROP, ACT (1882), S 123 I tenant holds over willen lic remuns in possession and the lessor accepts rent from hun or otherwise tsents to his possession lois essential for the pluntın to show that deſendunt had remained in possession ifter the eypir of the perio! covered by the rulit note (Norman JC) SII AJUDDIN V CHAI VAI 1934 ) 40 --S 107-Onbulial coufleirith trails Jer of possesio11 - Can form basis of sunt -S 116-Rent for more than three 3 ears cannot be accreoil I Oabuluynt signed in the tenint amounts to 2n greement to lense ind coupled with transfer of possession gives? (ause of action for 1 rent sunt (Norman JC) BI VI (TOPALI ARDUL RAHMAN 6 J 43 If 1 tenint holls over after the expans of the perio I contunel in 1 registered died then licclcs so under die i contract arising uncler S 116 of 1 l'Ict and consequentls no decrec cu le posed 26 minst him for the recosers of rent for more than three years (Barl. JC) MADAT ALINTIIAS ATI 2J 36 S 107-I cosc not sicnc! by both parlics is in all (1) A lezse not signed by both the mirties is innacl (\ornian J C) 1, Gour) JUTAN LII 5 J 100 --S 122-Gut is irretocalle-Trans fine fron the dotte is prolick! --S 116-ssen! -Prusumptioning of fact To constitute tenint hol link oner there must be sent on the put of the Ica DT hift once made by len il mens is irrelocall and the il nor cannot be liar to 511 75 1. Un the conce that it 115 neser inten lel to the effect I he donce 70 quires 7 14 ninst the donor tool title from the date of the gift Iven when trinsferee is in o tensible owner onks the rights of third parties acting an ox! faith are froiected in s +1 of the Cransfer of properts It muh more are thrs protect ed when the trusfree lins 20 juice Inst wercls 101 ( tensile real title (lon JC) has I L'ATES RAV 1935 J 118 beilier there 175 such 74 ent or not IS 1 question of fret Issent (an: 1x 1 litre I f) 117 it nuance of Ix rss on 19, Pu Ref (Vormine) War GAY 111 *1931 ) 27 -S 123-(ift of mot cable profil by Ilundu b3 Lagni Sondrip is not all Registration Comfulsory --S 116. Strols Llen I olimpo er ·361 MER LA DIGEST. 362 1 T. ACT (1482-Ciclul. . ir trin mirnt, USURIOUS LOAN ACT-1 Comat) -S 3-Puncil mly for 119:- Interest allir nr mm Rate ITCONSIL. and not an (2) Foll wat Irina) 11. lins C1141 *1936) 213 (1) Il bure there is a plexige as security inr the lom the rate of 40 per cent is Erink erresire in untur TRESPASS Sc. TC-Trek, (c) Though the court should allow the interest If the populatul rata howcret er higli, let it can rete it in myses in which ( 1 Col S3 ot the 1 but lies I Worplig BE!!!! HII kan 3) 5 דיווי III 11) VSURIOUS LOAXS ACT X OF 1918 5.1 21-acl le to "Iranit wer (a) 11.III li pplies to Irina Meru (HAJCI BIURARI I.A . 111110 3) 5 USARY LAW REPEAL ACT (XXVIII OF 1855) - S 3 Ipplicable in a parla sul -S2- Supulatdinle - Must be allor - to louce high mula sa pual or excessit C | Twitair TURAL Hith HEN ier 1111:i 11) twell suits 1317 KTO in ful with relle under the lat (Torino) FOV ✓ Ta Var. *1934 ). 48 (a) When there is stipulated rate of interest the court must illos it however high it may be (Vurpitz TC.) BIHARI LAL Y AVCD 1927 S. 19 -S.3-11 wterest penal - Reasonable rate bc alloucd-It interest is excessive and innfair-Court may reduce 11 () If interest is pen the court mi) VAKALATNAMA, urd it at such ate as is reasonable ind when it is not penal the court may reduce it il it is excessive and the transition 15 Sul -Construction-A pleale appointed tintilly unfair under S 74 of the Contrat fou that prosecution (ter) of all proceed. kland 5 3 of the l'stirious Louis Ict. Mugs collected the case call file the (Murphy c) BruARI LAL y. Amyrd cxecution application for tlich lie 1927 S. 19 engaged :

·363 AJMER LAIV DIGEST 364 VAKALATNAMA-(Concluded) pleuer u is appointed for the pro secution (pers) of all proceedings connect el with an evecution cnse Ilcll he could tule the execution application and that in construing that the circumstin e mhich it 115 given must be lookec! Torman / C) KALAT MOHAMMAD HILA CITAD 1936 ) 138 WORDS AND PHRASES - (Conclude!) rhe expression Hindu Joint fimili form is inaccurate (Vorman JC) firu HAZARI MAL GUI AB CIIND v Firy DOLAT RAV MINDAN Mat 1936 J 130 -"Possession follows title"- Applica tion when property incapable of conta 1110us possession \endor will only be deemed to be out of possession when some one is hollin adiersek to him (Norman JCI FATI 11 I AL V RAY NALAN 1936 J 191 WORDS AND PHRASES ---Baqi Dena Reba'-- mounts to more ackno.Iclament and not promise to pay The word Denn' does not coniert in 1 hnowledgment into a press promise 1) P2) 11 49 Ref (Morninu JC) VIST IVAI TI CHAVIA LAI 1936 J 180 WORKMEN'S COMPENSATION ACT (VIII OF 1923) S. 2 (1) (d)--Adopine mother is dcpendant An adoptie mother is n dependant, 1931 Rang 173 and 1931 Lah 399 Ref (norman ) c) BB {CIRI Ball Voor 1 *1934 J 101 ۷ ۱IST Hiodu Joint Family Fırm" I presse 1 mol correct

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