Suit
Suit—Defect
in the form of.
Defect in
the form of a suit immaterial— Substance to be looked at.
Ramani
Bhusan Chowdhury Vs. Mohendra Kr. Saha (1954) 6 DLR 156.
—If the
nearest reversioner, without sufficient cause, refuses to institute proceedings
or if he has precluded himself from suing or has colluded with the persons who
had the prior right to bring suit or concurred in the act alleged to be
wrongful, the next perspective reversioner would be entitled to sue.
Haji Yar Ali
Khan Vs. Mobarak Ali Chowdhury (1955) 7 DLR 6.
Suit—Maintainability.
To cure
defect of non-maintainability of a suit the court has the option suo moto to
direct the joinder of a person as a co plaintiff under Order I, rule 10, of the
CP Code even though the amendment was not asked for by the plaintiff.
Abdus Sattar
Howlader Vs. Afeluddin Chokdar (1952) 4 DLR 89.
Suit—Plaintiff’s
success depends on his own case
Plaintiff’s
suit—His success depends on his own case and not the weakness of that of the
defendant.
PK Basak
& Co. Vs. Gossen & Co. (1957) 9 DLRI.
Suit when expressly
barred under a statute—Means a suit which falls within the ambit of that statute—If has
no application when the suit is outside of what is prohibited.
When an
order purporting to be made under a certain provision of a statute is shown to
have been made without jurisdiction or malafide such an order cannot be said to
have been made under the said statute and that in such a case the statutory
provision seeking to bar a suit challenging the said order is not attracted.
An order,
though purporting to be made under a statute, being malafide or without
jurisdiction, is a nullity. Such an order cannot be taken to have been made
under the said Statute.
DIT Vs.
Waliullah (1976)28 DLR (SC) 151.
—In a suit
for specific performance of a contract against a transferee who took subsequent
to the contract sued upon, the burden of proving good faith and Lack of notice
is upon the defend it. (1959) 11 DLR 177.
—Suit for
possession—Title cannot be pleaded in bar of a suit of this nature.
Debendra
Mohan Das Vs. Mohd. Afazuddin (1965) 17 DLR 187.
Possessory
suit—Applicability
and scope of sec. 9 Specific Relief Act takes out of the creation of the Act
rights classed as “incorporeal rights” though they are immovable property. 20
CWN 1158: Ref.
—The object
of s.9 Sp. R Act is to discourage people from taking the law into their own
hands however good their title may be. 24 (Bom) LR 768: 1922 (Born) 216,
ref.
—Where the
tenant has been dispossessed landlord alone cannot sue for possession. 1919
Nag. 126. Contra 1950 AL U 288, 1952 (Pat) 339.
—A suit
under this section. by a tenant is not barred by the provisions of the Chota
Nagpur Tenancy Act. 15 CWN 387 : 13 CU 250; 9 IC 478.
—In a suit
for possession under this section, mesne profits cannot be awarded, 1927
(Mad) 722 102 IC 661.
—Appointment
of receiver for collection of mesne profits is without jurisdiction. 1937
Sind 161 :170 IC 12.
—Independently
of this sec. a suit for possession against a trespasser on possessory title is
maintainable. 49 A. 191 : 1927 (All) 526, 1927 All.669.
—In suits
under s.9 question of title is irrelevant. 58 C. 29:1931 Cal. 483.
Order 1, r. 3. Suit by trustee—There is no provision in the CP Code
enabling the trustees of a trust to sue in the name of the trust. Govt. of
the Prov of Bombay Vs. PA Wadia (1951) 3 DLR 337.
Suit by representative— A person appointed a representative under Or
1, r. 8, is not a party in his personal capacity. On his death, his rights not survive to his heirs. Haidarulla Vs.
Gajindha Sukiabaidya (1956)8 DLR 60.
Representative suit— A plaintiff suing in a personal capacity can
obtain the benefit of a representative suit. Abdus Sobhan Chowdhury Vs.
Faziur Rahman Chowdhury (1957) 9 DLR 467.
—A suit for
specific performance of agreement to affect a partial partition of joint
property is not maintainable. 12 CLJ 25.
—In a suit
for partition of joint family property all movables and immovables should be
joined 22 CWN 669. but if any property is left out it may be partitioned
subsequently. 39 CLJ 140; 32 CWN 1023.
—A suit for
partial partition between co-owners of an estate is maintainable since the
reasons against the partial partition of joint family property do not apply to
the case of co-owners of an estate. 12 CWN 540.
—Partition
suit, nature and scope—In determining the question as to exact nature,
characteristics and scope of a partition suit, the allegation made by the
plaintiff alone must be considered. The pleas raised by the defendant do not
affect the question. Furthermore in a Suit for partition the plaintiff does not
seek to enforce a right to a share in the property on the ground that it is a
joint property but merely seeks to obtain separate possession of a share
therein aid thus seeks merely for a change in the mode of enjoyment thereof. (1960)
12 DLR 329.
In partition
suit, the plaintiff can establish his title, if necessary. 29 CWN 776.
In a
partition suit all the co-sharers arc to be made parties, so a residuary
co-sharer cannot question the previous partition. 21 CLI 23.
A partition
suit must include all the claims relating to the subject-matter. A subsequent
suit for account does not lie. 468829.
In a
partition suit a defendant can ask for the separation of his share too. A Suit
for partition remains pending till the passing of the final decree. PLD 1953
(Lah) 545.
Partition suit—rights of defendants inter se—It is no
doubt usual in partition suits to decide the shares of all the parties. But
where the defendants agreed to have a preliminary decree being passed in favour
of the plaintiff for partition of his share without their rights being decided
and the preliminary decree was not appealed against, it is not open to the
defendants in subsequent proceedings to contend that their rights inter se
should have been dealt with. 36 PLD 112.
Partition suit, Court’s power and obligation— The Court
has an inherent power to refuse to divide the property by metes and bounds and
to adopt such other means as may appear equitable for effecting a just
partition. 61 MLJ 552.
—In a suit
for partition, it is not incumbent on the court to affect a partition of the
property only if the parties agree to abide by the partition or agree to the
appointment of a particular person as a local commissioner. 36 PLD 258.
—Partition
suit—Right of plaintiff and not of defendant’s subject-matter of suit.—Ii. is
the right of the plaintiff that constitutes the subject-matter of a suit. The
subject-matter has no reference to the right of the defendant or to the issue
which may incidentally arise in the suit. Quite apart from the provisions of
the Court-fees and the Suits Valuation Acts, it must be held on general
principles that the subject-matter of a suit is the right claimed by the
plaintiff in respect of whom he prays for relief. (1961)13 DLR (SC) 191.
—Valuation
for the purpose of jurisdiction— When not covered by section 8.—In a case which
is not covered either by section 8 or by a rule framed by the High Court under
section 9 or the Provincial Government under section 3 of the Suits Valuation
Act the value for jurisdiction will be the true value of the subject-matter of
the suit to be determined by the Court itself. (1961) 13 DLR (SC) 191.
—Partition
suit—where the plaintiff is out of possession—Court-fee is to be payable on the
plaintiffs share and jurisdiction of the court determinable on the value of the
plaintiff’s share. (1960) 12 DLR 32g.
—In a suit
for partition it is the value of entire property which determines jurisdiction
and not of the share which the plaintiff claims in the property. 29 CWN 76;
AIR (Cal) 1925 320.
Suit for
damages by Govt. servant,
Suit for
damages in tort brought by a Government servant against the State as well as
Government servant’s right to claim future salary—not maintainable.
Pakistan
through General Manager, NWR Vs. MIs. AV Issacs (1970) 22 DLR (SC) 371.
Oral
Usufructuary Mortgage—Suit for Redemption
Both in
India and in Burma cultivators, in the teeth of the express terms of s. 59 of
TP Act are still wont to obtain loans by delivering their lands to the lenders
upon the terms that the lenders may remain in possession until the loan is
repaid, and appropriate the fruits of the land towards the repayment of the
principal or of the interest due under the loan. Such transactions are
usufructuary mortgages within s. 58(d) and unless the instrument of mortgage in
such a case is in writing, and the transaction also falls within s. 53-A, the
terms of the mortgage cannot be relied on as a ground of attack or of defense
by either the plaintiff or the defendant in a mortgage suit, except in cases in
which they are embodied in a duly registered written instrument. Accordingly, a
suit framed as a suit for redemption of lands which are the subject of an oral
usufructuary mortgage cannot be sustained, inasmuch as the plaintiff pleads and
relics on the oral mortgage which is required by law to be effected by a
registered instrument. The proper course of the mortgagor to take in such a
case would be to sue for possession relying on his title. In such a suit, it is
not permissible for the defendant to rest his claim to remain in for possession
on the oral mortgage which could not be proved. 13 R 274 (FB). But see. 14
LR 157 (Rev)— 17 RD 201.
A suit for
setting aside a decree is a suit for substantive relief.
Kumudini
Welfare Trust Vs. Pakistan (1959) 11 DLR 57.