Monday, July 11, 2016

Food For Thought (Civil Law)

  1. Time is the essence of the contract.

  1. The amendment of the plaint should be permissible only of sufficient ground thereof is made out.

  1. The Plaintiff must prove the facts which establish his entitlement before he succeeds in the suit.

  1. The order of inspection is not to be provided for collecting evidence for the parties. And such investigation is necessary only when the parties are incapable of having knowledge or inspection in view of nature of the suit.

  1. Since an adoption diverts the normal course of succession, the Court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practice out of their lust for property.

  1. The propounder of WILL is obliged to dispel the cloud of suspicion.

  1. After a document is void ab initio and is an illegal document from its very inception, it is not required either to cancel or to set aside by filing a suit, because according to law, such a document does not exist.

  1. The executing Court does not have power to go behind the decree.

  1. Review, revision or appeal is creation of a statute. Authority which is not vested with power of review, revision or appeal cannot exercise said powers.

  1. The Amin Commissioner's report, even though it is not challenged by any of the parties, is not binding on the Court.

  1. Acceptance of rent may waive claim of landlord to evict the tenant.

  1. The Court being an authority to receive a document in evidence is bound to give effect thereto. A document tendered in evidence should be duly stamped or should comply with requirements of Section 35 of the Stamp Act.

  1. Title or caption or the nomenclature of the instrument/ document is not determinative of the nature and character of the instrument/ document, though the name may usually give some indication of the nature of the document. The nature and true purpose of a document has to be determined with reference to the terms of the document which express the intention of the parties.

  1. Under Section 9 of the CPC, the Civil Court has inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority.

  1. Section 10 of the Specific relief Act, 1963 lays down, inter alia, that unless and until the contrary is proved the Court shall presume that breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money.

  1. Temporary injunction if granted would not bind persons other than those against whom it is issued.

  1. The Consolidation authorities are vested with the power under OCH & PFL Act to decide the question of right, title and interest in land and civil Court's jurisdiction to decide such questions has been ousted by virtue of Section 51 and 4 (4) of the OCH & PFL Act.

  1. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. The form is not to be emphasized whereas the substance of pleading should be considered.

  1. Section 8 TP Act : - ….......a transfer of property passes forthwith to the transferee all the interest which the transferer is then capable of passing in the property and in the legal incidents thereof.

  1. Title of land passes upon valid execution of sale-deed.

  1. A partnership is governed by the provisions of the Indian Partnership Act, 1932.

  1. According to O.15, R.3, the hearing of the suit includes both production of evidence, as well as argument.

  1. Suit must start with a plaint and culminate in a decree.

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