Representative - Suit - Rare - Suit...

In civil practice representative suit is a rare suit which may be filed under Rule 8 of Order 1 of C.P.C.1908

- One or more persons may file a representative suit in which they have same interest in one suit.

- A representative suit may be filed with the permission of the court & such permission may be taken before or after filing of suit.

- In representative suit court may direct one or more persons to defend such suit on behalf of or for benefit of all persons who are interested.

- In representative suit court shall direct the plaintiff to give notice of institution of representative suit to all interested persons either by personal service or by reason of number of persons or other cause personal service is not practicable by public advertisement of such notice.

- A person on whose behalf or for whose benefit suit is instituted may apply to court to made party to suit.

- In representative suit claim shall not be abandoned or no compromise shall be recorded under order 23 of C.P.C. unless at the expenses of plaintiff notice as above to all interested persons given.

- If plaintiff or defendant in representative suit does not proceed or defend suit with due diligence then Cort may substitute others person having same interes in suit in the place of plaintiff or defendant as required.

- Decree passed in representative suit is binding on all persons on whose behalf or whose benefit suit is instituted or defended.

- Representative suit  would not abate if one of plainff dies & his heirs are not brought on record.

- In representative suit a person or body of persons interested in any question of law which is issue in the suit may be permitted to take part in the proceeding of suit.

....... Relevant Judgement....

1) Ramchandra Krishna Yadav v/s Sakharam Gangaram Mali 1996(1) Bom.C.J.311

2) A.I.R.1990 S.C.396

3) A.I.R. 1990 S.C. 642

4) A.I.R.1984 S.C. 468

...............Please Comment & give Suggessions.........................

Counter-Claim -:- Misunderstanding

As per O.8 R.6A of C.P.C. defendant may file Counter-Claim.....................

-Basically counter claim may be filled by defendant against plaintiff.

- In respect of any right/claim accrued to defendant against plaintiff.

-Counter-Claim shall be filled before defendant the time limited for delivering defence has expired even cause of action accrued before or after filing of suit.

-It is not restricted for money claim . It may be filled in respect of any claim .

- Basically counter claim shall not exceed the pecuniary limits of the jurisdiction of court.

- Counter claim have same effect like suit. Also provisions / rules of suit/plaint shall applicable to counter claim.

- If suit is stayed/dismissed then also counter claim may proceed.

- Counter claim may be filled after filing of written statement but before time limited for delivering defence has expired.

- In counter claim defendant may add necessary party other than parties to suit.

-In counter claim defendant may add property other than subject matter of suit.

- Counter claim solely against co-  defendant of suit is not maintainable.

-Counter claim for injunction in respect of same or different property is also maintainable.

....... Relevant Judgement...........

1) Jag Mohan Chala & And v/s Dera Radha Swami Satsang & Ors A.I.R.1996 S.C.2222=1996 SAR 590=1996(4)SCC 699

2) Smt. Shanti Rani Das Dewanjee v/s Dinesh Chandra Day (dead ) by Lrs 1997 SAR 803=1997(8)SCC 174

3) Datta Bandu Sadale v/s Sridhar Payagonda Patil 1992(2) Mah.L.J.784

4) Manikchand Fulchand Katariya v/s Lalchand Harakchand Katariya 1994(1)Mh.L.J.732

5) Rajni Rani & And v/s Khairati Lal & ors 2014 SAR 1159= 2014 AIR SCW 6187

6) Oberlino Cirilo Sanches v/s Momento Var 200(4) All.M.R.640=2006(5) Bom.C.R.383.

....... Please Comment & give Suggestions.....

Appeal By Third Party

Who Can File Appeal............... Appeal by Third Party/Person

         

- Generally an appeal shall be filled by the party to the suit/proceeding/application/petition.

- As per C.P.C. an appeal shall lie from Decree/Orders.

-As per S.96 an appeal shall lie from decree but shall not lie against consent decree also no appeal lie from decree of small causes courts in which subject matter does not exceed 10 thousand rupees except on question of law.

-S.2(2) of C.P.C. drfines decree.

-As per O.43 R.1 of C.P.C. :- An appeal lie from from following order u/s 104 - order u/r 10 of O.7/r.9. Of.o.9 rejection of application/r.13 of o.9 rejection of application/ o.21of  r.11/r.34 of o.21/r.72 or 92 of o.21/ r(1)(106 )  (1) (105) of o.21/r.9 of 0.22/r.10 of o.22/r.10 of o.22/r.5,7 of o.33/r.3,4,6 of o.35/r.2,3,6 of 38/ r.1,2, 2A,4,10 of 39/r.1,4 of o.50/r.19 of o.51/r.23,23A of o.51/r.4 of o.47 granting an application for review.

- Also number of laws provided an appealable provisions like Hindu Marriage Act/Indian Succession Act/Mah. Public Trust Act/Mah Tenancy & Agricultural la ds Act/Mah Land Revenue Code/Mamaladar Act.....Etc.

- S.5 /96/104/O.41,43 of C.P.C. are relevant in respect of an appeal.

- Basically or Generally party to proceeding against whom decree/order passed shall lie an appeal .

- But THIRD PARTY/PERSON who is NOT a party to proceeding may prefer an appeal WEATH LEAVE OF APPELLATE  COURT if he would be Prejudicially affected by Judgement/Order.

....... Relevant Judgement................

Hardevinder Singh v/s Paramjit & Ors 

2013 Supreme Appeals Reporter (civil) 169=2013(9)SCC 261=2013 AIR SCW 447.

....... Please Comment/give Suggestions......

- 

- Hindu Succession (Amendment) Act 2005 it's effect....

Latest Update of - - - - - - - - - - - - - - - - - - - On - 11-08-2020  - Hindu Succession[Amendment] Act 2005 substituted new section for S.6 of the principal Act (i.e.Hindu Succession Act 1956)...... It's Relevant Effect...................

                              

.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.      DIARY NO.32601 OF 2018 

VINEETA SHARMA  … APPELLANT(S)

VERSUS 

RAKESH SHARMA & ORS. … RESPONDENTS

WITH  

SPECIAL LEAVE PETITION (C) NO.684 OF 2016

SPECIAL LEAVE PETITION (C) NO.35994 OF 2015

SPECIAL LEAVE PETITION (C) NO.38542 OF 2016

SPECIAL LEAVE PETITION (C) NO.6403 OF 2019

SPECIAL LEAVE PETITION (C) NO.14353 OF 2019

SPECIAL LEAVE PETITION (C) NO.24901 OF 2019

SPECIAL LEAVE PETITION (C) NOS.1766­1767 OF 2020

-The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same

rights and liabilities.

- The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

- Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

- The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring

about the actual partition or disruption of coparcenary.   The fiction was only for the purpose of ascertaining share of deceased coparcener

when he was survived by a female heir, of Class­I as specified in the Schedule to the Act of 1956 or male relative of such female.   The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of son above in pending proceedings for final decree or in an appeal.

- In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court.  However, in exceptional cases where

plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a

decree of a court, it may be accepted.  A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

- on   this above  question,   suits/appeals   are

pending before  different  High   Courts   and  subordinate  courts.   The matters have already been delayed due to legal imbroglio caused by

conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. The pending matters be decided, as far as possible, within six months.In view of the aforesaid discussion and answer, we overrule the views   to   the   contrary   expressed   in  Prakash   v.   Phulavati  and Mangammal v. T.B. Raju & Ors.  The opinion expressed in Danamma @

Suman Surpur & Anr. v. Amar  is partly overruled to the extent it is contrary to this decision..

J.(Arun Mishra).

J.(S. Abdul Nazeer).

J.(M.R. Shah)      

New Delhi:

August 11, 2020.

 -------------------------------------------------------------- Before Above Judgement Legal Position ---------   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

- above amendment come into force since 9 September 2005.

- Since amendment Daughter of joint hindu family governed by Mitakshara law become Coparcener as like Son.

- Also Daughter have same right in coparcenary property since amendment like Son.

-Also Daughter have some liabilities in coparcenary property as like Son since amendment.

-Since amendment Hindu Mitakshara coparcenary include Daughter as coparcener.

-Proviso- any disposition, alienation, partition(registered/effected by decree of court ), testamentary disposition of property which had taken place before 20 December 2004 shall not affect, invalidate due to above Amendment.

-Daughter have right to dispose by testamentary disposition(i.e. by Will) his share in the coparcenary since amendment.

• -A Hindu dies after amendment (i.e 09-09-2005) his interest in the Hindu Joint Family property governed by Mitakshara shall devolve by testamentary or intestate succession as per Amended Act & not by survivorship. & Coparcenary property shall be deemed to have been divided as if partition had taken place .

- Since amendment Daughter is allotted same share as is alloted to a Son.

-Pre deceased Daughter's share alloted to her surviving child.

- Share of predeceased child of pre deceased Daughter shall alloted to child of predeceased child of pre deceased daughter.

- Since amendment no court shall recognise any right to proceed against son,grandson, great grandson, great grand father for recovery of any debt due from his father ............. Solely on pious obligation.... Provided debt before amendment shall not affect.

- Nothing contained in amendment shall apply to partition(registered/effected by decree of court) which has been effected before 20 December 2004.

............. Related Judgement.............

-1) Sadashiv Sakharam Patil v/s Chandrakant Gopal Desale 2012(1) Mh.L.J.2011=2011(5)Bin.CR726

-2) Ganduri Koteshwaramm & anr v/s  Chakiri Yanadi & and 2012(1) Mh.L.J.613=2011(9)SCC 788

-3) Vaishali Satish Gonarkar v/s Satish Keshavarao Gonarkar 2012 (3) Mh.L.J.669=AIR 2012 Bom 110

- 4) Badrinarayan Shankar Bhandari v/s Omprakash Shankar Bhandari 2014(5)Mh.L.J.(F.B.) 434=AIR 2014 Bom 151

- 5) Prakash & ora v/s Phulavati & ors 2016(1)Mh.L.J.(S.C.)1=2016(2)SCC 36

- 6) Danamma alies Suman Surpur & another v/s Amar & others 2018(3) Mh.L.J.451(S.C.)

- 7) Mangamal Thulasi & anr v/s T.B. Raju & ors Supreme Court - Civil Appeal no. 1933/2009- Decided on 19-04-2018.

..…... Please Comment & give Suggestions.........

Special Marriage - Related Law/Provision

Law/Provision in respect of Special Marriage other than Hindu Marriage......        

                                                            

- The Special Marriage Act 1954 provide provisions of special form of marriage , registration, divorce.

-conditions for special marriage- neighther party has spouse living, incapable of giving valid consent due to unsound ness of mind, unfit for marriage & procreation of children, recurrent attacks of insanity/male completed 21 years & female 18 years, parties are not within prohibited relationship (proviso custom at least one party permits marriage between prohibited degree).

-For solemnization of special marriage 30 days  publication of notice by Marriage Officer is mandatory .

-After expiration of 30 days from the date on which above notice has been published Marriage may be solemnized but within 3 calendar Months from the date of publication of above by Marriage Officer.

-Objection to above marriage may be taken within 30 days from publication of notice by marriage officer. Decision on objection shall be taken within 30 days. Aggrieved person within 30 days prefer Appeal to District Court within local limit of whose jurisdiction Marriage Officer has his office.

- Declaration  in the specified form of parties & 3 witnesses in the presence of Marriage Officer is mandatory.

- Any person aggrieved by any order of refusing to register marriage may within 30 days from the date of order file appeal to District Court & decision on such appeal shall be final.

- Petition for - Restitution of conjugal rights , judicial separation , nullity of Marriage & divorce shall be presented before District Court ( not before civil judge senior division) in respect of marriage solemnized under Special Marriage Act. ( Peruse S.22 to 27 ).

- Divorce by Mutual Consent shall be presented before District Court ( Peruse S.28 ).

- Same procedure  like petition under  Hindu Marriage Act is provided in different sections of of Special Marriage Act . ( i.e. verification, in camera , duty of court in passing decree, alimony pendent lite, permanent alimony, maintenance, custody of children, enforcement of decree evidence etc. )

......................................................................................

The Indian Christian Marriage Act 1872 & The Divorce Act 1869....

- Solemnization in India of the marriages of Christian - requirements, rules, rites ceremonies, customs , registration, authority of solemnization of marriage, time/ place of marriage , notice of marriage, registration of marriage, oath before marriage certificate are embodied in the  christian marriage act.

- Petition for dissolution of marriage, nullity of marriage, restitution of conjugal rights shall be presented before District Court. ( peruse S. 10,18, 19, 32 ) 

- Divorce by Mutual Consent shall be presented before District Court.

-Same procedure like petition under Hindu Marriage  Act is provided in the said act in respect other remedies.

.........................................................................

The Parsi Marriage & Divorce Act 1936..

Provision relating to marriage & divorce among Paris are embodied in the said act.

- Matrimonial suits for nullity, dissolution, divorce , judicial separation, restitution of conjugal right shall be presented before District Court. ( S.18 to 35 ) 

- Suit for divorce by Mutual Consent shall be presented before District Court. ( S. 34 B )

- Same procedure like petition under Hindu Marriage Act is provided in the said act in respect of other remedies.

.............................................................................

The Foreign Marriage Act 1969..

An act make provision relating to marriage of citizens of India outside India

- Matrimonial Relief of Foreign Marriages- Chapter IV to VII of the Special Marriage Act 1954 shall apply in relation to marriage solemnized under the said act or marriage in foreign country between parties of whom 1 at least citizen of India .

...................................................................................

The Dissolution Of Muslim Marriage Act 1939...

An act make provision relating dissolution of marriage by Woman married under Muslim 

Law & renunciation of Islam by married Muslim Woman on her marriage tie.

- A muslim woman may file  suit - for    decree for dissolution of marriage as grounds provided in S.2 of the said act.

- Renunciation of Islam by married muslim Woman or her conversion to a faith other than Islam shall not operate to dissolve her marriage S. 3 of the said act.

- Suit under the said act shall be presented / filled before Civil Judge Junior Division.

..... Please Comment & Give Suggestions....

To Know-Neglected/Rare Used- Provisions of Will

Some provisions in respect of will of hindu are neglected/ rarely  used in civil practice....(Ademption)
                                             

-S.152 of Indian Succession Act- explain ademption- it means property bequeathed does not belongs to testator or converted into different kind at the time of  death of testator.

- Due to ademption bequeathed property be withdrawn from the operation of will.

-S.153- A demonstrative legacy is not a seemed by reason that property charged by will does not exist at the time of death of testator or converted into different kind  but it shall in such case  be paid out of general assets of testator.

-S.154- A thing bequeathed is right to receive something of value from third party & testator receives in his life it  , the bequest adeemed.

-S.155- Receipt  by testator part of thing bequeathed shall operate as ademption of legacy to the extent of sum received.

-S.156- Receipt of portion of fund/stock bequeathed shall operate as ademption only to the extent of amount received & residue shall applicable to discharge of specific legacy.

-S.158- Stock bequeathed does not exist at the time of testator's death , the legacy adeemed.

-S.159- Part of stock bequeathed exists at the time of death of testator , legacy adeemed so far as regards to part of stock which has ceased to exist.

-S.160- No-Ademption of bequest goods due to reason of removal.

-S.161- Removal of thing bequeathed from the place does not constitute ademption.

-S.162- bequeathed money or other commodity received by testator from third person shall not constitute ademption.

-S.163- Thing bequeathed change undergoes between the date of will & testator's death due to operation of law is not ademption.

-S.164-Change of thing without knowledge/sanction of testator is not ademption.

-S.165-Thing bequeathed lent to third party on condition of replace is not ademption.

-S.166- Stock bequeathed sold but replaced & belonging to testator at his death is not ademption.

- Relevant provision....

-S.57 & Chapter XVI(16) of Indian Succession Act 1925

- Relevant judgement..

-Due to rarely use of the above provision in actual practice as per my knowledge/search no landmark judgement available...

...... Please Comment & give Suggestions.......

Common-Hotchpot / Partition Suit & Exception

Common-Hotchpot principle , Partition Suit & Exception.....           

                 
                   



-Common - Hotchpot -principle -Requirement..

-Every suit for partition by any member of hindu joint family shall ordinarily embrace all joint family properties.

- Suit for partition embrace all properties because complete , final partition of properties by mets & bound & to avoid repetition of litigation.

-If suit for partition does not embrace all joint family properties then it is not maintainable as per principal of common hotchpot. 

-Exception to above principle of common hotchpot.....

-part of family property held jointly with strangers , who have no interest in the family partition.

-If some property lie / situated outside India.
- Part/Portion of family property is in the possession of a mortgagee.

- If part of family property is an impartible Zamindari.

-If court permits as per under o.2 r.2 of C.P.C. to file suit for partial partition.

- If suit complete ingredients of partial partion as provided in un codified hindu law.

-Relavant provision....

- Para 332/327 of Mulla Hindu Law 21 (twenty first)  edition .

- Para 488/487/485 of Mayne's Hindu Law.

-O.2 R. 2 of C.P.C. 1908.

-Relavant judgement..

-Govindrao Gangaramji Ajmire v/s Dadarao alies Shrawan s/o Gangaramji Ajmire 2004 (4) M.L.J.653=2004 (3) All.M.R.660.

........ Please Comment & give Suggestions........

Self-acquired/Separate Property- Confusion

Confusion of Presumption, Burden of proof in respect of joint family property & separate/self-acquired property.......

-Self acquired property means property acquired in any following ways.

-property acquired by the coparcener without any detriment to ancestral property.

- property acquired by separate earning by coparcener.

-property inherited as obstructed heritage i.e. inherited from other than father, father's father, father's father's father.

-a gift of  small portion of ancestral movable property made through affection by father to his male issue.

-government grant exclusively granted to member joint family & not for benefit of the family.

-ancestral property lost by family & same is recovered by a member without aid of joint family property.

-property purchased by separate income which come from separate property.

-property held by a sole surviving coparcener, when there is no widow in existence who has power to adopt.

-separate earning of member by his own exertions, without aid of joint family property.

-all acquisitions made by means of learning are declared by hindu gains of learning act 1930.
..........…................

- No-Presumotion that a joint family possess joint property.
-Burden of proving that any property is joint family property is in the first instance upon the person who claims it as coparcener property & he also prove possession of nucleus of joint family for acquisition of it.

...... Relevant Judgement................................

-D.S.Lakshmaiah & And v/s L.Balasubramanyam & Anrs 2003 Supreme Appeals Reporter 817

-Bindiya A. Chawla & Ors v/s Ajay Lajpatrai Chawla & Ors 2009 Supreme Appeals Reporter 688

-Harihar Diwakar Choube & others v/s Govind Diwakar Choube & Others 2010(4) Mh.L.J. 524

-Relevant provision-uncodified Hindu Law - in respect of separate/ self acquired & coparcenary property, joint hindu family

-S.101 of Indian Evidence Act 1872.

.......... Please Comment & give Suggestions...

Adverse Possession - View

No Statutory Definition Of - Adverse Possession

-There is no  statutory definition of adverse possession but it is settled by way of judicial pronouncement and  following are basic essential requirements of it.

-The possession must be adequate/ uninterrupted in continuity to the knowledge of the true owner .

                       

- The possession must be adequate in publicity.

-The possession must be adverse to the competitor/true owner for period  of 12 years thereafter.

- Mere possession for long period is not sufficient to create adverse possession.

- A claimant of adverse possession must definitely allege/prove how/when adverse possession adverse possession commenced and know to the ture owner.

- A plea of adverse possession is not available to the claimant if he does not know real/true owner of the property.

-Permissive possession holder does not claim claim adverse possession. For example possession of tenant, licensee, mortgagee, possession on the basis of agreement to sale or any other legal document.

- Alternative plea  either title or adverse possession is not available to the claimant of adverse possession.

-Co-Parcener/Co-,Heir can not claim adverse possession against other coparcener/co heir.

- Section 27 and Article 64/65 of  The Limitation Act ,1963 are relevant provisions.

- Relavant Judgement

-Suit for declaration of title acquired by adverse possession is maintainable/it is heritable-Ravinder Kaur Grewal and others v/s Manjit Kaur and others 2019(6) Mah.L.J.87=2019 Supreme Appeal Reporter 945.( In the above judgement 58 case laws are referred)

**** Shri Uttam Chand(D) Thr.Lrs. v/s Nsthu Ram(D) Thr.Lrs. & Ors 2020 Supreme Appeals Reporter page 300

... Please Comment/give Suggestions..

KEY Provision-Interim Application-Civil Suit

Interim Applications in civil suit and it's provision...
....

-S.10 of C.P.C. - stay of subsequent suit.

-S.148 of C.P.C.-enlargement of time where any period is fixed/granted by court for doing any act/allowed by the code.

-S.153 of C.P.C.-general power to amend any defect /error in any suit.

-O.1R.10 of CPC- add/substitute/strike party (Plaintiff/Defendant) to suit .

-O.2R.2 of CPC- with leave of court- omits to file suit in respect of all reliefs accrued in respect of same cause of action.

-O.5R.20 of CPC- substituted service of summons- by fixing copy of summons on conspicuous place of court / house of defendant, advertisement in a local daily newspaper.

-O.5R.24-service of summons on defendant who is in prison.

-O.5R.25 of. CPC- service of summons  on defendant who resides out of India and has no agent in India.

-O.5R.28-of CPC- service of summons on soldiers, sailors, airmen.

- O.6R.17 of CPC- amendment of pleading - All applications  for amendment of pleading shall be signed and verified as required R.14/15 of O.6 of CPC -please see/peruse para 79 (chapter V) of Civil Manual.

-O.7R.10 of CPC-return of plaint-procedure - application.

-O.11R.2 of CPC -application for interrogatories, R 4 it's form, R 8,9 it's answer, form.

-O.11R.14 of CPC- order the production of documents by any party- document relating to matter in question.

-O.13R.2 of CPC- production of documents after settlement of issues.

-O.13R.10 of CPC- either send/call -record of suit -which is in other court.

-O.14R.5 of CPC- amend and strike out issues- at any time.

- O.16R.5,6- witness summons to give evidence/ production of document.

-O.16R.10 - procedure if witness fails to comply with summons.

-O.16A R.2,3 of CPC-witness summons to person who detained in prisons.

-O22R.2,3 of CPC - bringing legal heirs on record.

-O22R.4(4) of CPC- exemption to take Lrs on record.

- O23R.1 withdrawal of suit with or without permission to file fresh suit.

-O26 R.4/5/9/10A/10B/10C/11/13-commission for examination of person/ examination of person who reside out of India/local investigation/for scientific investigation/performance of ministerial act/ sale of movable property/examine or adjust accounts/partition of immovable property .

-O37R.3(5) of CPC- leave to defend in summary suit-within 10 days from service of summons for judgement.

- O39 R1(a) of CPC -any party to suit (plaintiff/defendant) can file T.I. application- if suit property is in danger/wasted/damaged/alienated/, wrongfully sold in execution.O39R1(b)(c)- plaintiff can can file T.I. application for protection of possession against defendant.

-O39R.2 of CPC- plaintiff may at any time after commencement of  suit,either before or after judgement may apply for T.I.

-O39R.4 of CPC- application for discharge, verify, set aside of injunction order.

O.39R.7 of CPC - application by any party for detention,peservation, inspection, etc of suit property.

-O40R.1 of CPC- Appointment of receiver.

-O.41R.5(2) of CPC-stay by court which passed the decree.

........Please comment and give suggestions....

Minor- Related Provision- Civil Suit

Order XXXII (32) of C.P.C. and Chapter XII(12)  of Civil Manual are relevant in respect of minor related provision
                                                          

                                                                    .



 - As per O.32 R. 1 - Minor to sue by next friend.              

 - As per R. 2- if suit on behalf of minor is instituted without next friend then  Plaint  to be taken off the file.                                                                                            

 - As per R. 2A- if suit is instituted on behalf of minor by his next friend then at any stage of suit -Court either its own motion or on application of other side -order the next friend to give security for payment of all costs incurred or likely to be incurred by other side (i.e.defendant/opponent).                                                      

 - As per R.3 of O. 32 of C. P. C.  and Para 289 of Civil Manual -if defendant/opponent is minor at the time of filling of suit then court shall appoint proper person to be guardian for suit/application-As per above provisions  it's duty of Plaintiff/Applicant to take necessary steps for appointment of Guardian.      

-As per R. 6 of above order next friend or guardian for the suit shall not without leave of court receive any money /movable property on behalf of my either by way of compromise /decree /order.                                  
 - As per R. 7 of above order no next friend / guardian for suit shall without leave of court enter into agreement /compromise on behalf of minor. As R. 7(1-A) application for leave shall  be accompanied by affidavit of next friend /guardian /certificate of pleader to the effect that agreement / compromise proposed is in his opinion for benefit of the minor.     

 - Retirement/ Removal of next friend please peruse R. 8 to 11 of above order.                                                          

 - Procedure provided in R. 12/13 of above order if minor attain majority.                                                           

 - Rules above of minor apply to person of Unsound Mind (except R. 2-A).                                                                        


 -As per S. 141 of C. P. C. -procedure provided in CPC in regards to suit shall be followed as far as it can be made applicable in all proceeding in any court of civil jurisdiction. So O. 32 is applicable to miscellaneous proceeding also.                                                                     
 - As per Article 60 of Limitation Act 1963- limitation of suit for setting aside transfer of property made by the guardian of ward (minor)  is 3 year- which begins -when the ward attains majority.                                        
 - As per S. 8 of Hindu Minority and Guardianship Act 1956- Natural Guardian shall not without permission of the court mortgage/charge/transfer by sale, gift, exchange, otherwise, any part of immovable property of the minor /lease of any part of property of minor for term exceeding 5 years or for term extending more than 1 year beyond the date on which minor will attain majority. Application for the said permission  be file in District Court as per S. 9 of Guardian and Wards Act 1890.While granting permission court ought to see necessity and advantage of the ward.                                                           

.........Please Comment and give Suggestions. 

Notice and Civil Suit

Before filling suit firstly we have to see whether notice is mandatory ......                                                                                                  

- As per S. 80 of C.P.C. two months notice is mandatory before  filling suit against Govt/Public Officer in respect of any act purporting to be done by him in his official capacity. Basically notice u/s 80 be disclose name, description, residence of plaintiff, cause of action, relief claimed by plaintiff .                                                     
- As per S. 80(2) of C. P. C. if in a suit urgent or immediate relief required to obtain then with leave of court without giving notice suit can be filled.                                                                                

-Once notice is issued u/s 80 then as per the said section there is no provision to dispense with remaining period of notice and give permission to file suit.                                                                    - -

-As per S. 180 of Maharashtra (Bombay)  Village Panchayat Act 1958 three months notice is mandatory before  filling suit against any member /officer /servant / agent of panchayat acting under it,anything in good faith done under this act /rules.                                  
- As per S. 280 of Maharashtra Zilla Parishad and Panchayat Samitis Act 1961 three months notice is mandatory before filling suit against any officer,servant ,person acting/working under order of Zelda Parishad /Panchayat Samiti.                                                          
- As per above sections (180/280) no notice is mandatory if suit is filled in respect of Future Action of above person, servant,  member,  operson,  officer,  or against Grampanachyat/Z.P./Panchayat Samiti. Here note that as like S. 80(2) of C. P. C. there is no provision to grant  permission  to file suit without giving notice under above sections  before filling suit .                                                                                                     
- As per S. 304 of Maharashtra Municipal Councils Nagarpanchayats  and  Industrial Townships Act 1965 one  months notice is mandatory before filling suit against council, cigarettes officer servant in respect of any act done by them according to the said act .But as per S. 304(4) no notice is mandatory before filling suit if suit is filled under S. 38 of Specific Relief Act 1963 (i. e. Suit for Perpetual Injunction) or under S. 96(1)(2) of the this  act.                              
- As per S. 55 of Maharashtra Agricultural Produce Marketing Act 1963 one months notice is mandatory before filling suit against any member servant officer of the market committee in respect of any act done by them according to the said act.                                                              
- As per S. 106 of Transfer of Property Act 1882 Six months notice for agricultural or manufacturing lease and fifteen days notice for other purpose lease is mandatory before filling suit against tenant for possession / arrears of rent in respect of property to which Transfer of Property Act applies.                                                                                               
- As per S. 164 of Maharashtra Co-operative Act 1960 two months notice is mandatory before filling suit against society any it's officer in respect of any act touching the business of the society.                                  
- As per S. 15 of Maharashtra Rent Act 1999 ninety days notice is mandatory before filling suit against tenant for possession on the ground of non payment of standard rent or permitted increases.       

- Except mandatory notice provided                                                  

- In fact no notice is mandatory /required before filling suit of Partition  / Redemption of Mortgage / Specific Performance / Injunction / Encroachment / Declaration of Title / Declaration of Status / Demarcation / Rectification of Document/ Compensation for Defamation .

Please Comment /Give Suggestions..... 

TERRITORIAL JURISDICTION OF CIVIL COURT

Section 15 of C.P.C. is relevant for territorial jurisdiction of civil court

# - Every civil suit shall be instituted in the court of the lowest grade   

 - Territorial jurisdiction of civil court is determined as per S.22A /25  of Maharashtra (Bombay) Civil Courts Act 1869.                      

 -Along with territorial jurisdiction of civil court we shall take in consideration  the pecuniary jurisdiction of civil court while filling civil suit.                                                                                              
 - Pecuniary jurisdiction of civil court is determined as per S. 24 of Maharashtra Civil Courts Act. As per it Civil Judge Junior Division have jurisdiction of all civil suits/proceedings of civil nature wherein the value of subject matter does not exceed 500000=00 (Five lakh rupees)  and up to  the sky is the pecuniary limit of Civil Judge Senior Division.  

 - As  per S. 32 of  Maharashtra Civil Courts Act only Civil Court Senior Division have jurisdiction to entertain suit against Crown /Government /Officer of Government in their official capacity are party. But suit against local authorities /bodies like Grampanchayat/Zilla Parishad/Panchayat Sasmit /Nagarpanchayat/MSEB/MSRTC be filled in Civil Judge Junior Division subject to pecuniary jurisdiction of court.                                                        
 - As per S. 28A of Maharashtra Civil Courts Act as well  as S. 262/371 of  Indian Succession Act 1925 powe of district court is delegated in Civil Court subject to pecuniary jurisdiction.                

 - As per Chapter XIV (14) of Civil Manual application for Succession /heirship certificate  under succession /heirship act be filled in Civil Judge Junior/Senior Division subject to pecuniary jurisdiction                    

 - As per above chapter XIV of civil manual contested application under Indian Succession Act be decided by Civil Judge Senior Division.                                                                                              

 - As per Notification dated 10-03-1998 published in Maharashtra Govt. Gazette dated 18-06-1998,Part 4-C, page 1153 under Order 37 Rule  1 of C. P. C. all the courts in the state having jurisdiction of  Summary Suit subject to pecuniary jurisdiction.                            
 - As per S. 19 of Hindu Marriage Act 1955 and notification  ever petition under the said act be filled in Civil Judge Senior Division. 

 - But suit for Divorce /Restitution /Judicial Separation under  Mohammedan Law be filled in Civil Judge Junior Division.              
 - As per S. 31 of Special Marriage Act 1954 all petition under the said act be filled in District Court.                                                      

 - As per S. 9 of Guardian and Wards Act  1890 all applications under the said act be filled in District Court.                                                      

.......................................................................................................................................................Please Comment and give Suggestions... 

JURISDICTION OF CIVIL COURT

 =Basically civil court have jurisdiction to try all suits of a civil nature.                       

 =In respect of jurisdiction of civil court - Peruse only section 9 to 20 of C.P.C. 1908       

 =As per section 9 civil court have jurisdiction to try all suits of civil nature except suits are expressly or implied barred by law.                                                 
 
* In fact  number  of laws bars  jurisdiction  of civil court to take  cognizance  of civil suits =for example  Section  85 of Maharashtra (Bombay) Tenancy  and Agricultural Act 1948, Section  50/51/80 of  Maharashtra (bombay) Public Trusts Act 1950, Section . 36c/158/213 of  Maharashtra Land Revenue Code 1966,Section 268 /430 of Company Act  2013,,Section 34 of SARFAESI Act 2002,Section 91 of Maharashtra  Co-operative  Societies Act 1960,Section 47 of Maharashtra  Rent  Control Act 1999,Section 8/42 of Arbitration  and Conciliation Act 1996 etc.

* Basically if we  carefully peruse  the provisions of bar of jurisdiction  of  civil  court  then we found that the act/order/judgement passed by the  authority/tribunal/officer shall be according to law and it shall not be void /ultra vires.                         

* If act /order/judgement passed by authority /tribunal/officer is void ultra vires then civil court have jurisdiction to try suit in respect of such act/order/judgement.                                   

 =Generally we  files civil suits in respect immovable property like  partion/injunction/specific performance /declaration of title /declaration in respect of documents, order /encroachment /easement .....etc.                       

 =Basically suits of civil nature does not mean only suit in respect of immovable property but every legal right of civil nature in respect of property as well as person. For example every person have right to file suit for compensation in respect of defamation.                                                     

*Also every person or his legal heir have right to file suit for damages,  competition caused  in quarrel.                                         

  * Also legal  husband or wife can file suit for injunction not to marry till  legal divorce                   

 * Also a person can file suit for declaration in respect of his legal  status as wife, husband, son,moher,father,   or not as above                                                         

=As per above discussion and as per section 9 of C. P. C. civil court have jurisdiction to try all suits of civil nature is the presumption subject to express or implied barred