Rajasthan Judicial Service Main Examination [Questions and Answers]!
PART-A
Q.1 How a sale in case of tangible immovable property of a value less than one hundred rupees can be made under Section 54 of the Transfer of Property Act, 1882?
Ans. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. [Section 54, Transfer of Property Act, 1882]
Q.2 Under the Hindu Minority and Guardianship Act, 1956 in what circumstances a Court can grant permission to the natural guardian to deal with the immovable property of a minor?
Ans. Under the Hindu Minority and Guardianship Act, 1956, the Court can grant permission to natural guardian to deal with the immovable property of a minor when the concerned matter relates to the necessity of the minor or for an evident advantage to the minor. [Section 8, Hindu Minority and Guardianship Act, 1956]
Q.3 What is meant by “guardian ad litem” and which Order of Civil Procedure Code deals with it?
Ans. A person who is appointed to be a guardian by the Court to represent for the suit of the minor defendant, he is called ‘guardian ad litem. [Order 32, Rule 3, Civil Procedure Code, 1908]
Q.4 Suits and applications specified in which Schedule of the Rajasthan Tenancy Act, 1955 can be heard and determined by a Revenue Court only? State description of any two such suits or applications.
Ans. In Part 1 and Part 2 of Third Schedule to the Rajasthan Tenancy Act, 1955, suits and applications respectively, which can be heard and determined by a revenue Court only, have been provided.
Q.5 What is the distinction between a certificates of recovery issued under the Rajasthan Rent Control Act, 2001, in case of premises let out for commercial use and premises other than those let out for commercial use?
Ans. If the tenant does not vacate the premises within three months of the date of issue of certificate for recovery of the possession, he shall be liable, from the date of issue of certificate for recovery of possession to pay mesne profits at the rate of 2 times the rent in case of premises let out for residential purpose, at the rate of 3 times the rent in case of premises let out for commercial purposes and at the rate of 3 times the rent in case certificate for recovery of immediate possession has been issued under Sec. 16 of the Act. [Section 20(3), Rajasthan Rent Control Act, 2001]
Q.6 Under which provision of Code of Civil Procedure, restoration or setting aside of orders passed ex parte can be sought regarding an application filed under Order XXI of CPC which has been dismissed for non-appearance or decided ex parte?
Ans. Under Order 21, Rule 106 of the Civil Procedure Cord, 1908, such application may be filed.
Q.7 What is the exception to the requirement of notice before institution of suit against Municipality or its officers under Section 304 of the Rajasthan Municipalities Act, 2009?
Ans. Under Section 304 Of the Rajasthan Municipalities Act, 2009 anything regarding requirement of giving notice before instituting any suit against a Municipality or its officers shall not be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by giving of the notice or the postponement of the commencement of the suit or proceeding. [Section 304(3), Rajasthan Municipalities Act, 2009]
Q.8 How a witness can be contradicted by the previous statements made by him in writing?
Ans. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. [Section 145, Indian Evidence Act, 1872]
PART-B
Q.9 Under the provisions of the Easements Act, 1882, in what circumstance a licence is transferable?
Ans. Unless a different intention is expressed or necessarily implied, a licence to attend a place of public entertainment may be transferred by a licensee, but save as aforesaid, a licence cannot be transferred by the licensee or exercised by his servants or agents. [Section 56, Indian Easements Act, 1882]
Q.10 What is meant by ‘Continuing guarantee’ under the Contract Act, 1872?
Ans. A guarantee which extends to a series of transactions is called a “continuing guarantee”.
(a) A in consideration that B will employ C in collecting the rent of B’s Zamindari, promises B to be responsible, to the amount of 5,000 rupees, for the due collection and payment by C of those rents. This is a continuing guarantee.
(b) A guarantees payment to B, a tea-dealer, to the amount of £ 100, for any tea he may from time to time supply to C. B Supplies C with tea to the above value of £ 100, and C pays B for it. Afterwards, B supplies C with tea to the value of £ 200. C fails to pay. The guarantee given by A was a continuing guarantee, and he is accordingly liable to B to the extent of £ 100.
(c) A guarantees payment to B of the price of five sacks of flour to be delivered by B to C and to be paid for in a month. B delivers five sacks to C. C pays for them. Afterwards B delivers four sacks to C, which C does not pay for. The guarantee given by A was not a continuing guarantee, and accordingly he is not liable for the price of the four sacks.
If the surety takes guarantee for the appearance of the judgment debtor as and when required by the Court on various dates of hearings it was held to be a continuing guarantee. [See: Wali Mohd. vs. Ganpat, AIR 1931 Allahabad 243 (at p. 244)].
A continuing guarantee may at any time be revoked by the surety, as to future transitions, by notice to the creditor, or by surety’s death. [Sections 129,130 and 131, Indian Contract Act, 1872]
Q.11 Under what conditions, the objection as to the place of suing can be allowed by any appellate or revisional Court?
Ans. No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. [Section 21(1), Civil Procedure Code, 1908]
Q.12 What are the provisions relating to stamp purchased, which has not been used or no allowance has been claimed in respect thereof, under Rajasthan Stamp Act, 1998?
Ans. Any stamp which has been purchased on or after the date of commencement of the Rajasthan Finance Act, 2013 shall be used or presented for claiming allowance within a period of six months from the date of purchase. Any such stamp, which has not been used or no allowance has been claimed in respect thereof within the period of six months from the date of purchase, shall be rendered invalid.
Any stamp which has been purchased but has not been used or no allowance has been claimed in respect thereof before the said date, may be used or presented for claiming the allowance under the relevant provisions of the Act within a period of six months from the said date. The stamp which has not been used or presented within the aforesaid period of six months shall be rendered invalid. [Section 63-A, Rajasthan Stamp Act, 1998]
Q.13 Enumerate the prerequisites for filing an application for eviction of tenants under the Rajasthan Rent Control Act, 2001 on the ground that ‘the tenant has neither paid nor tendered the amount of rent due from him’.
Ans. Under the Rajasthan Rent Control Act, 2001, for eviction of tenant the first ground is that the tenant has neither paid nor tendered the amount of rent due from him for four months.
For getting the relief on this ground, the prerequisites are as under:—
i. The landlord has disclosed to the tenant his bank account number and name of the bank in the same Municipal area, in the rent agreement or by a notice sent to him by registered post, acknowledgment due.
ii. the landlord has given a notice to the tenant by registered post, acknowledgment due, demanding arrears of rent and the tenant has not made payment of arrears of rent within a period of thirty days from the date of service of notice.
For the purposes of this clause, the rent shall be deemed to have been tendered when the same is remitted through money order to the landlord by properly addressing the same. [Section 9(a), Rajasthan Rent Control Act, 2001]
PART-C
Q.14 Who can make an application for compensation arising out of an accident under Section 166 of the Motor Vehicles Act, 1988?
Ans. An application for compensation arising out of an accident by a motor vehicle can be made by the following:—
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased. [Section 166(1), Motor Vehicles Act, 1988]
Q.15 Explain the difference in position in relation to provisions of ‘Enforcement’ as provided under Section 36 of the Arbitration and Conciliation Act, 1996 prior to and after the amendment introduced by Arbitration and Conciliation (Amendment) Act, 2015.
Ans. Section 36 of the Arbitration and Conciliation Act, 1996 and the Arbitration and Conciliation (Amendment) Act, 2015 relates to stay on the enforcement of the award.
The new amendment of 2015 provides that an award would not be stayed automatically by merely filing an application for setting aside the award under Section 34. There has to be a specific order from the Court staying the execution of award on an application made for the said Purpose by one of the parties. The aforesaid new amendment aims to remove the lacunae that existed in the previous Act where pending an application under Section 34 for setting aside of arbitral award, there was an automatic stay on the operation of the award. The new law also empowers the Court to grant stay on the operation of arbitral award for payment of money subject to condition of deposit of whole or a part of the awarded amount. [Section 36, Arbitration and Conciliation Act, 1996, read with Arbitration and Conciliation (Amendment) Act, 2015 (w.e.f. 23.10.2015)]
Q.16 What are the provisions in the Constitution of India in relation to inconsistency between laws made by Parliament and laws made by the Legislatures of States?
Ans. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.—
(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. [Article 254, Constitution of India]
Q.17 Indicate various provisions relating to time of presentation of Wills and presentation of Wills under Registration Act, 1908.
Ans. A will may at any time be presented for registration or deposited.
The testator, or after his death any person claiming as executor or otherwise under a Will, may present it to any Registrar or Sub-Registrar for registration. [Sections 27 and 40(1), Registration Act, 1908]
PART-D
Q.18 What is the effect of fraud or mistake on the period of limitation prescribed by the Limitation Act, 1963 for any suit or application?
Ans. The following shall be the effect of fraud or mistake on the period of limitation prescribed by the Limitation Act, 1963 for any suit or application:—
Where —
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him;
the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:
Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which —
(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or
(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.
Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the Court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:
Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be. [Section 17, Limitation Act, 1963]
Q.19 Write a note on provisions relating to decision as to proper fee and valuation of the suit under Section 11 of the Rajasthan Court Fees and Suits Valuation Act, 1961.
Ans. In every suit instituted in any Court, the Court shall, before ordering the plaint to be registered, decide on the materials and allegations contained in plaint and on the materials contained in the statement, if any, filed under Section 10, the proper fee payable thereon, the decision being however subject to review, further review and correction in the manner specified in the succeeding sub-sections.
Any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule to the Code of Civil Procedure, 1908. If the Court decides that the subject- matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court’s decision and the deficit fee shall be paid. If the plaint be not so amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit.
A defendant added after issues have been framed on merits of the claim may, in the written statement filed by him, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant on the merits of the claim, and if the Court finds that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall follow the aforesaid procedure.
Wherever a case comes up before a Court of Appeal, it shall be lawful for such Court, either of its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower Court affecting the fee payable on the plaint or written statement or in any other proceeding in the lower Court and determine the proper fee payable thereon.
If the Court of Appeal decides that the fee paid in the lower Court is not sufficient, the Court shall require the party liable to pay the deficit fee within such time as may be fixed by it.
If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower Court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower Court, the deficit fee shall be recoverable as if it were an arrear of land-revenue.
If the fee paid in the lower Court is in excess, the Court shall direct the refund of the excess to the party who is entitled to it.
All questions as to value for the purpose of determining the jurisdiction of Courts arising on the written statement of a defendant shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule to the Code of Civil Procedure, 1908. [Sec. 11, Raj. Court-Fees and Suits Valuation Act, 1961]
Q.20 Frame the issues on the basis of the pleadings of the parties noticed below and write the judgment:
On 01.05.2011 plaintiff A’ filed a suit for specific performance of an agreement dated 30.04.2002 against ‘B’ concerning sale of a plot situated at Civil Lines, Bikaner, which was already in possession of the plaintiff as tenant. It was claimed that the plaintiff has performed his part of the agreement and has paid entire consideration of Rs.10,00,000/- by December, 2007; however, the sale deed was not executed and registered and despite repeated requests, the same was being avoided. The defendant gave notice dated 01.02.2011 alleging default in payment of rent. When plaintiff personally met with defendant on 15.03.2011, he refused to execute the sale deed. It was prayed that defendant be directed to execute sale deed and get the same registered.
A written statement was filed by the defendant inter alia submitting that the plaintiff has not performed his part of the contract, even as per the plaint averments the consideration was paid in December, 2007, therefore, the suit was barred by limitation and the agreement being unregistered is inadmissible in evidence. It was also claimed that as defendant’s daughter was to get married and as he was in dire need of funds the agreement was entered into for a paltry sum. It was prayed that the suit be dismissed.
Ans. Court of Civil Judge, Bikaner
Name of Presiding Officer…………………, R.J.S.
Civil Original Suit No……………../………….
‘A’ S/o………………, by caste………………., aged ………… years, resident of………….. Plaintiff.
v/s.
‘B’ S/o……………., by caste…………………, aged …………… years, resident of………… Defendant.
Suit for Specific Performance
Present:—
Shri……………….. Advocate for the plaintiff.
Shri………………. Advocate for the defendant.
JUDGMENT
Date………………..
On 01.05.2011 plaintiff ‘A’ filed a suit for specific performance of an agreement dated 30.04.2002 against ‘B’ concerning sale of a plot situated at Civil Lines, Bikaner, which was already in possession of the plaintiff as tenant. It was claimed that the plaintiff has performed his part of the agreement and has paid entire consideration of Rs.10,00,000/- by December, 2007; however, the sale deed was not executed and registered and despite repeated requests, the same was being avoided. The defendant gave notice dated 01.02.2011 alleging default in payment of rent. When plaintiff personally met with defendant on 15.03.2011, he refused to execute the sale deed. It was prayed that defendant be directed to execute sale deed and get the same registered.
A written statement was filed by the defendant inter alia submitting that the plaintiff has not performed his part of the contract, even as per the plaint averments the consideration was paid in December, 2007, therefore, the suit was barred by limitation and the agreement being unregistered is inadmissible in evidence. It was also claimed that as defendant’s daughter was to get married and as he was in dire need of funds, the agreement was entered into for a paltry sum. It was prayed that the suit be dismissed.
On the pleadings of the parties, the following issues were framed:—
(1) Whether the plaintiff has performed his part of the contract regarding all the terms of the sale agreement dated 30.04.2002? [Plaintiff]
(2) Whether the defendant has not performed his part of the contract regarding all the terms of the sale agreement dated 30.04.2002 and whether the defendant is not ready and willing to execute and register the sale deed? [Plaintiff]
(3) Whether the suit has been instituted with the period of limitation? [Plaintiff]
(4) Relief.
Issue No. 1:—
The burden to prove this issue is on the plaintiff. The plaintiff has examined himself as P.W. 1 and produced the sale agreement Ex.P. 1. He has deposed that he was in possession of the suit plot of the defendant as his tenant. On 30.04.2002 both the parties executed the sale agreement relating to the suit plot, wherein on receiving the consideration of Rs.10,00,000/- from the plaintiff, the defendant agreed to sell him the suit plot and he executed sale agreement Ex.P. 1 in favour of the plaintiff.
Plaintiff P.W. 1 has also stated that while performing the terms of the sale agreement Ex.P. 1, he paid the whole amount of consideration Rs.10,00,000/- to the defendant by December, 2007, whose receipt is Ex.P. 2. In spite of several requests being made by the plaintiff to the defendant, the defendant neither executed the sale-deed nor did he register it. Whereas the statement of defendant D.W. 1 is that the plaintiff did not pay the rent of the disputed plot to the defendant and for this on 01.02.2011 the defendant gave notice to the plaintiff. The plaintiff did not perform his part of contract relating to Ex.P. 1, because the plaintiff paid the whole amount of consideration in December, 2007.
Therefore, in my opinion, by reason of delayed payment of the whole amount of consideration by the plaintiff to the defendant, it cannot be said that the plaintiff was not ready and willing to perform his part of the contract or he did not perform the contract, because in the sale agreement Ex.P. 1, there was no mention of the specified last date of the payment of whole of the consideration money.
Consequently, this issue is decided in favour of the plaintiff and against the defendant.
Issue No. 2:—
The burden to prove this issue is on the plaintiff. The plaintiff P.W. 1 has stated that in performance of his part of contract relating to sale agreement Ex.P. 1 the plaintiff has paid the whole amount of consideration Rs.10,00,000/- to the defendant by December, 2007, vide receipt Ex.P. 2. But in spite of several requests by the plaintiff to the defendant, the defendant did not execute and register the sale deed.
When on 15.03.2011 the plaintiff personally met with the defendant, the defendant refused to execute the sale deed. Whereas the defendant D.W. 1 has deposed that the sale agreement Ex.P. 1 being unregistered, it is not admissible in evidence. He also deposed that as the defendant’s daughter was to get married and as he was in dire need of funds, the sale agreement was entered into for a paltry sum.
In my opinion, keeping in view the proviso to Section 49 of the Registration Act, 1908, this sale agreement, (Ex.P. 1), though un-registered, is admissible in evidence.
There is no evidence on the file which can prove that at the time of execution of the sale agreement (Ex.P. 1) there was no ‘free consent’ of the defendant and so this agreement is void. According to Explanation 2 of Section 25 of the Indian Contract Act, 1872, an agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate.
By the aforesaid discussion, it becomes clear that the defendant failed to perform his part of the contract of Ex.P. 1 sale agreement and as such he is not ready and willing to execute and register the sale deed. Therefore, issue No. 2 is also answered in favour of the plaintiff and against the defendant.
Issue No. 3:—
On 01.05.2011 the plaintiff has instituted this suit for specific performance of sale agreement, which was executed by the parties on 30.04.2002. But in the agreement Ex.P. 1 there was neither mention of the specified date for the payment of the amount of consideration by the plaintiff to the defendant nor was there an agreement of a last date for the execution and registration of the sale deed. It is noteworthy that on 15.03.2011 the plaintiff personally met with the defendant and requested the defendant to execute the sale deed, but the defendant refused to execute the sale deed.
In such matter, Schedule’s Article 54 of the Limitation Act, 1963 is relevant, according to which, if no date is fixed for specific performance of a contract then the time from which the period of limitation begins to run is the date when the plaintiff has notice that the performance is refused and this period of limitation is three years from the date of such refusal. This refusal was made on 15.03.2011 and the suit was instituted on 01.05.2011.
In the light of the aforesaid facts, circumstances and law, this Court concludes that this suit is within limitation.
Consequently this issue is also decided in favour of the plaintiff and against the defendant.
Issue No. 4:—
Keeping in view the findings on issue Nos. 1 to 3, this Court grants decree with costs in favour of the plaintiff and against the defendant that for the specific performance of the sale agreement Ex.P. 1, the defendant shall execute and register the sale deed; and hereby directs as follows:—
(i) the defendant shall execute and register the sale deed within 30 days from the date of the decree and the same shall be communicated to this Court.
(ii) Decree-sheet be drawn accordingly
Sd/-
Civil Judge, Bikaner.
Sd/-
Civil Judge, Bikaner.
Judgment signed and pronounced in open Court today…………….. (date).
Seal of the Court Sd/-
Civil Judge, Biikaner.