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Trial of Civil Suits And Criminal Cases justice Mohammad Hamidul

Trial of Civil Suits And Criminal Cases - GBV · Temporary injunction - development work and public duties of an y department Injunction against co-sharer Injunction in a suit for

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Page 1: Trial of Civil Suits And Criminal Cases - GBV · Temporary injunction - development work and public duties of an y department Injunction against co-sharer Injunction in a suit for

Trial of Civil Suits And

Criminal Cases

justice Mohammad Hamidul

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TRIAL OF CIVIL SUITS

Contents

Jurisdiction of civil courts 1-8 Pecuniary Jurisdiction and Territorial Jurisdiction of civil courts Legal Jurisdiction-Section 9 of the Code Suits of Civil nature Right to property, right to office

Jurisdiction barred expressly

Construction of exclusion or ouster clause Jurisdiction barred impliedly

of suits 9-15 Section 10 of the Code

Analogous and simultaneous trial

CHAPTER- HI

The principle of Res Judicata Section of the Code

Conditions for the application of the principle Res Judicata

CHAPTER-

Institution of suits 24-30

Particulars of the plaint

Examination of the plaint

Return of plaint, Order VII rule 10

Rejection of the Order rule

Rejection of plaint under section 151 of the Code

ix

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Summons 31-39

Service of summons

Personal service

Service upon an agent

Service upon an adult male member

Service by affixing copy of the summons

Service by registered post

Substituted service

Proof of service

Rules 19 and 19A

Parties to the suit 40-44 Necessary

Transposition of parties

Written statement 45-46

Filing of Written Order VIA of the Code

Pre-trial Order X of the Code

Section - 89 C

Amendment of pleadings 47-52 Amendment of pleadings, Order VI the Code

Amendment of the written statement

Allowing amendment

Issues 53-55

Framing of Issues, Order XTV of the Code

Order XTV and Order XX

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CHAPTER- X

Non-appearance of the parties Dismissal of the suit for non-appearance of the plaintiff, Rules and 8 of Order IX

9

Rule 9A

Relief under section for restoration of a suit dismissed for default

Non-appearance of the exparte decree

Exparte decree - remedy under rale

Sufficient cause

Relief under section for setting aside an exparte decree

Proviso to rule

Limitation for filing a miscellaneous case under rule

Rule 13A

Adjournments 66-67 Rule 1 (3), Order

Sub-rule (4)

(7)

Examination of witnesses and recording of evidence 68-81

Order of the Code and other relevant provisions

Examination of witnesses and recording of evidence

of witnesses

of witnesses

Other matters relating to examination of witnesses and recording of evidence

Proof of documents and marking of exhibits

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Pronouncement of Judgment 82-89

Order XX and other relevant provisions

Assessment of the evidence on record, Burden of proof

Compensatory cost 90-91

CHAPTER- XV

Execution of decrees

Order XXI and the relevant rules

Powers of the executing court

Stay of execution case

Enforcement of decrees for specific performance of restitution of conjugal rights and for injunction, rule 32

Attachment of immovable property and objection to such rules 54-58

Sale of immovable property in execution of a decree, rules and

Setting aside of sale, rules 89-91.

Rules 100- 103

Commissions and Local inspection 105-116

Commission to examine witnesses

Commission for local investigation

Commission to effect partition

Commission to examine accounts

Local inspection under rule 7 of Order XXXJX

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CHAPTER-

Interlocutory matters 117-137 Attachment before judgment, Order XXXVIII, rules 5 and 6

Some instances where the Superior Courts found the order of attachment before judgment not proper

Temporary injunction, Order XXXLX

Prima facie arguable case

Irreparable loss

Balance of convenience and inconvenience Temporary injunction - development work and public duties of any department

Injunction against co-sharer

Injunction in a suit for partition restraining a co-sharer from making any construction

Injunction to stay execution

Mandatory ad-interim injunction under section

Disobedience of an order of injunction

Issuance of temporary injunction when the maintainability of the suit is questioned

Rule A of Order XXXJX

Appointment receivers, Order XL

Appointment of receiver in a suit for partition

Appointment of receiver in a partnership suit

Inherent power of the court

Applicability of section 151 of the Code

Maintainability of suits 143-166

Maintainability of suits in respect of a deed or a decree

Maintainability of filed under section 9 of the Specific Relief Act

Maintainability of suits for declaration of title to immovable property

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Maintainability of suits against

Maintainability of partition suits

Question of maintainability raised at the interlocutory stage

Question of maintainability on the ground of defect of parties

Question of maintainability on the ground incompetency of the person who filed the suit Question of maintainability as regards locus standi, legal right or status.

Maintainability of suits for permanent injunction

Maintainability of Small Cause Court Suits

Maintainability of suits of Family Courts

Appeals 167-176

Appeals from decrees, section 96 of the Code and Order XLI

Powers of the Appellate section 107 of the Code

To determine the case finally

Remanding a suit

Taking of additional evidence

Stay of proceedings and executions, Order XLI rule 5

Appeals from Orders

Section 104 and Order of the Code

XXI

Revision 177-180

Section the Code

Powers of the revisional court

Limitation for filing of a revisional application

(2) of section

Trial of Family Courts Suits 181-188 Jurisdiction of the Family Courts

Institution of suits

xiv

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Pre-trial proceeding and

Recording of evidence

Enforcement of decrees of the Family Courts

Interim Orders

Application and non-application of certain laws

cases 189-207 Right of pre-emption under section 96 of the State Acquisition and Tenancy Act

Who can file an application for pre-emption

Splitting up of jama

Application of the principle of waiver, acquiescence and estoppel

Doctrine of partial pre-emption

Conversion of an application for pre-emption

Meaning of 'date of knowledge'

Determination of the status of the petitioner and the purchaser

Nature of the land transferred

Addition of party

Status of the co-petitioner

Final order

Application of Order JX Rule 9 and Rule 13 of the Code

Trial Procedure of the Small Cause Courts Suits 208-209

CHAPTER-XXV

Problems relating to suits for specific performance of contract 210-215 Granting of solatium

Disputed question of title

Application of section 27(b) of the Specific Relief Act

Compliance with provisions of certain laws

XV

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The Limitation Act 216-248

Some important problems relating to different provisions of The Limitation Act

Section 3

Section 5

Section 5 and 29

Section 6, 8 and Article 44

Section 14

Section 14 and section 29

Section 18

Section 22(1)

Section 28, Articles 142, 144, 149 Extinguishment of right to property and Establishment of right to property by adverse possession

Adverse possession against co-sharers of joint properties

Application of Articles 142 and 144

Application of Article 149

When continuous and uninterrupted possession does not confer title

Establishment of right to property on the basis of an invalid document

Application of Article 120

Articles 182 of The Limitation Act and section 48 of the Code of Civil Procedure

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n

TRIAL OF Criminal Cases

Contents

General Principles 251-256 Innocence of the accused

Defence taken by the accused persons

Benefit of doubt

Mens rea or motive

CHAPTER-

Initiation of Criminal cases 257-270

Complaint case

case Case)

case (FIR Case)

First Information Report (FIR)

GD. Entry and FIR

Unnatural death cases

Place of Inquiry and Trial 271-281

Jurisdiction of Criminal Courts

Sections -183, 188

Search and Seizure 282-286

Section 103 the Code

Use of the evidence of the seizure list witnesses

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Detention and Remand 287-290

Arrest

Detention and Remand

Taking of Cognizance 291-296

Principles of taking of cognizance

Naraji Petition

Trial Procedure 297-301

Trial in Absentia

Section 205C

Section 205CC

Section 205D

Hearing under section

CHAPTER-

Framing of Charge 302-340

Principles to be followed at the time of charge

Alteration of the charge Use of sections and 149 of the Penal Code in framing charge

Framing of charge regarding offences of culpable homicide amounting to murder and not amounting to murder Framing of charge regarding offences of hurt and grievous hurt

Framing of charge under section and 412 Penal Code

Framing of Charge under sections 406 and 420 of the Penal Code

Framing of charge and holding of trial of offences under Madak Niantran Ain

Charge under sections 25B and 25C of the Special Powers Act

Charge under section of the Arms Act

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Discharge of the accused

Discharge under section and of proceeding under section

Application of sections 247and 249 of the Code 341-348 Application of section 247

Application of section 249

CHAPTER- X

Summary Trial 349-351 Sections 260 - 265 of the Code

CHAPTER- XI

Recording of evidence and Use of evidence 352-360 Mode of taking and recording evidence in inquires and trial

Order of examination of witnesses

Number of witnesses

Leading questions

Cross-examination

Re-examination and recall

CHAPTER-

Assessment of Evidence 361-376

Use of FIR in evidence

Use of statements of witnesses recorded under section 161 of code

Use of confessional statement recorded under section 164 in evidence

Use of statement of a witness recorded under section 164 in evidence

Use of extra-judicial confession in evidence

Use of dying declaration in evidence

Use of medical evidence

Conflict between inquest report and post mortem report

Use of report of an expert in evidence

xix

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Assessment of oral evidence

Evidence of a child witness

Evidence of a dumb witness

Evidence of related and interested witnesses

Evidence of a chance witness

Evidence of hostile witnesses

Evidence of the accused and the approver

Examination of the accused under section 342 Effect of improper examination and under section 342

Use and evidentiary value of a statement under section 342

Judgment 377-383

Hearing of arguments

Delivery of judgment

Operative part of the judgment

Appeal & Revision

Appeal

Procedure of hearing appeal

Appeal by a fugitive

Summary disposal of appeal

Appeal against acquittal

Appeal inadequacy of sentence

Disposal of appeals

Retrial

Withdrawal of appeals

Abatement of appeals under section

Revision

XX

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CHAPTER-XV

The Children 1974

Problems regarding trial, conviction, sentence of a child accused

Ascertainment of the age of the accused

Conviction and sentence of a child Section and 52 of the Act

CHAPTER- XVI

Miscellaneous 403-431

Postponement and adjournment of proceedings, section 344

Compounding of offences under section 345

Previous acquittal or section 403

Withdrawal from prosecution under section 494

Granting of bail under the Penal Code

Granting of bail under other Penal Laws

Cancellation of bail

Bail under section 498

Disposal of properties under sections

XXI