Dismiss in Default a Boon under Civil Suit Proceedings

Once the suit gets dismissed for default the remedy plaintiff has is to file a restoration application of the suit for setting aside dismissal under Order 9 Rule 9, showing sufficient cause for his previous non-appearance when the suit was called on for hearing. Apart from this he can also file an appeal under Section 104 read with Order 43 Rule 1(c) of CPC. On certain occasions an interesting situation arises if this restoration application also gets dismissed for default meaning that applicant/plaintiff remained absent when the application under O. 9 R. 9 was called on for hearing, then what is the remedy available with the applicant petitioner/plaintiff. Through the present article author tried to discuss the remedies applicant/plaintiff have in such a situation.

Constitution

Parliament’s power to

amend the Constitution of

India

by Esha Jain

Practically every Constitution has some

formal method of constitutional

amendment. This method consists in

changing the language of the

constitutional provisions so as to adopt

them to the changed context of the

social needs. In some countries, the

process may be easier than in others,

and accordingly, the Constitutions are

sometimes classified into flexible or

rigid. In a rigid Constitution, the

process of amending the Constitution is

more elaborate and difficult than the

enactment of ordinary laws.

In a flexible Constitution, the

amendment may be affected rather

easily. The best example of such a

Constitution is the English Constitution,

which may be amended by passing an

ordinary Act of Parliament and there is

no distinction between ordinary

legislation and constituent legislation. A

federal Constitution is usually of a rigid

type, for it seeks to achieve a balance

between the Centre and the States.

In India, the most important process to

modify and adopt the text of the Indian

Constitution is contained in Article 368.

For the purpose of amendment, various

Articles of the Constitution are divided

into three categories:

(1) Amendment by simple majority:

Amendments contemplated in Articles

5, 6, and 239-A, can be made by simple

majority. These Articles are specifically

excluded from the purview of the

procedure prescribed in Article 368.

(2) Amendment by special majority:

Articles which can be amended by

special majority are laid down in Article

368. All constitutional amendments,

other than those referred to as above,

come within this category and must be

effected by a majority of the total

membership of each House of the

Parliament, as well as by a majority of

not less than two-thirds of the

members of that House present and

voting.

(3) By special majority and

Ratification by States:

Articles which require in addition to the

special majority and ratification by not

less than one-half of the State

Legislatures come under this category.

These are fundamental matters where

States have important power under the

Constitution and any unilateral

amendment by Parliament may vitally

affect the fundamental basis of the

system built up by the Constitution.

This class of articles consists of

amendments which seek to make any

change in the provisions mentioned in

Article 368. The following provisions

require such ratification by States:

(1) Election of President—Articles 54

and 55.

(2) Extent of Executive power of the

Union and States—Articles 73 and 162.

(3) Articles dealing with Judiciary—

Supreme Court and the High Court’s—

Articles 124 to 147 and 214 to 231, and

241.

(4) Distribution of legislative powers

between the Centre and the States.

(5) Any of the Lists of VII Schedule.

(6) Representation of States in

Parliament IV Schedule.

(7) Article 368 itself.

Procedure for Amendment under

Article 368:

A Bill to amend the Constitution may

be introduced in either House of

Parliament. It must be passed by each

House by a majority of not less than

two-thirds members of total

membership of that House present and

voting. When a Bill is passed by both

Houses, it is presented to the President

for his assent, who shall give his assent

to the Bill and the Constitution shall

stand amended.

The question whether amendment of

fundamental rights are covered by the

proviso to Article 368, came for

consideration in Shankari Prasad v.

Union of India, AIR 1951 S.C. 455. In

this case, validity of the First

Amendment which inserted Articles 31-

A and 31-B, was challenged.

The Supreme Court held that power to

amend the Constitution including the

fundamental rights, was contained In

Article 368 and that the word “Law” in

Article 13 (2) includes only an ordinary

law and not constitutional

amendments. Therefore, a

constitutional amendment will be valid

even if it abridges or takes away any of

the fundamental rights.

Same line of approach was followed in

SaJJan Singh vs. State of Rajas than, AIR

1965 S.C. 845, in which the validity of

Seventeenth Amendment of the

Constitution was challenged. Supreme

Court approved the majority Judgment

given In Shankari Prasad case, that

“amendment of the Constitution” means

amendment of all the provisions of the

Constitution.

But In Golak Nath vs. State of Punjab,

AIR 1967 S.C. 1643, and Supreme

Court overruled the decisions of

Shankari Prasad and Sajjan Singh cases

and held that Parliament had no power

to amend Part III of the Constitution so

as to abridge or take away the

fundamental rights.

The Constitution (24th Amendment) Act,

1971, was passed to remove the

difficulties created by the decision of

Golak Nath case. This amendment

provides that Article 13 does not

include the amendment of the

Constitution made under Article 368. It

added a new sub-clause In Article 368

which provides that “notwithstanding

anything in this Constitution,

Parliament may, in exercise of

constituent power, amend by way of

addition, variation, or repeal any

provision of the Constitution.”

The validity of this Amendment was

again challenged In Keshvanand Bhartiv.

State of Kerala, AIR 1973 S.C. 1461. In

this case, Supreme Court overruled the

decision of Golak Nath case and held

that Article 368, even before the 24th

Amendment of the Constitution,

contained the powers as well as the

procedure of the amendment.

As regards the scope of the amending

power contained in Article 368, the

court said that the word “amendment”

has been used in various places to

mean different things. In Article 368, It

means any addition or change in any of

the provisions of the Constitution. The

fundamental rights cannot be

abrogated, but they can be amended

reasonably. The court further said that

every part of the Constitution can be

amended provided in the result the

basic structure of the Constitution

remains the same.

To remove the difficulties created by

the decision of Keshvanand Bharti Case,

the Constitution (42nd Amendment)

Act, 1976, has added two new clauses

(4) and (5) to Article 368 of the

Constitution. Clause (4) provides that

no constitutional amendment (including

the provisions of Part III) or purporting

to have been made under Article 368

whether before or after the

commencement of Constitution (42nd

Amendment) Act, 1976, shall be called

in question in any court on any ground.

Clause (5) declares that there shall be

no limitation whether on the

constituent power of Parliament to

amend by way of addition, variation or

repeal the provisions of the

Constitution under this Article.

In Minerva Mills Ltd. v. Union of India,

AIR 1980 S.C. 1789, the Supreme Court

held clauses (4) and (5) of Article 368

as void, because through these clauses

all limitations on the amending power

of the Parliament were removed.

The court held that Parliament cannot

have unlimited power to amend the

Constitution. “Limited amending power”

is the basic feature of the Constitution.

The court, however, held that the

doctrine of basic structure is to be

applied only in judging the validity of

the amendments to the Constitution

and it does not apply for judging the

validity of ordinary laws made by the

Legislature.

Sample Legal Arguments

Arguments Advanced

Issue 1. Is the suit filed by the plaintiff is maintainable as per Order XXXII Rule 1 and 2 of The Code of Civil Procedure, 1908?

NO, the suit filed by the plaintiff is not maintainable, as this case is filed be Deepika but she cannot sue the authorities, as per the provisions of Order XXXII Rule1, at the time of filing of suit, she has not attained the age of majority as per Sec.3 of Indian Majority Act, 1875. Therefore, this suit is to be taken off as per Order XXXII rule 2 of the Code of Civil Procedure, 1908.

Order XXXII Rule 1:-

Monor to sue be next friend:- Every suit by a monor shall be instituted in the name by a person who in such suit be called the next friend of the minor.

Order XXXII Rule 2:-

Where suit is instituted without next friend, plaint to be taken off the file:-

(1) Where a suit is instituted be or on behalf of a minor without a next friend, the defendant may apply tohave the plaint taken off the file, with cost to be paid be the pleader or other person be whom it was presented.

(2) Notice of such application shall be given to such person, and the court, after hearing his objections (any) mau make such order in the matter as it thinks fit.

In Smt. Sarla v. Sh. Ram Singh:- The Delhi District Court considered that “The suit on behalf of the minors plaintiff cannot be instituted without appointing their guardians u/o XXXII rule 1 CPC and therefore, suit is not properly instituted as far as the then minor plaintiff no. 2 and 3 are concerned. Suit therefore is instituted only by plaintiff no. 1 for herself and not being the then minor plaintiff no. 2 and 3. This issue therefore is decided accordingly.” And no relief was granted to the monors and in courts finding given on the issue no. 3 and 4, plaintiff is not entitled to any relief. The suit is dismissed however no order as to costs.

The Madras High Court in:-

Abdul Azeez v. Pathumma Bi

Order 32, Rule 1, C. P. C. lays down that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. There arc no exceptions to this general rule of procedure contained in the Code itself. There is no definition of a minor in the Code nor in the General Clauses Act. The Indian Majority Act, IX of 1875 provides that every person domiciled in British India shall be deemed to nave attained his majority when he shall have completed his age of eighteen years and not before.

Therefore, Deepika has to file a suit be her next friend as per Order XXXII rule1.

Issue 2. Whether the injuries caused to the plaintiff was due to the carelessness and negligence of her parents?

Yes, the injuries caused to plaintiff was due to the carelessness and negligence of her parents. It is the duty of the parents to look after their children. The pump is operated electrically inside the room, which is not the place of playing for children and nobody is supposed to go in the room. Therefore, the parents were guilty of negligence for the alleged incident.

Negligence is the breach of a duty caused be the omission to do something which a reasonable man, guided be those considerations which ordinarily refgulate the conduct of the human affairs would do, or doing something which a prudent and reasonable amn would not do. Actionable negligence consists in th neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, be which neglect the plaintiff has suffered injury to his person or property.

There are # constituents of Negligence:-

1. A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of duty.

2. Breach of the said duty

3. Consequential damage

Taking into consideration al the above constituents, it cannot be said that the injuries have been caused due to the negligence and carelessness of the defendants. The plaintiff had no business to enter into the pump room as the pupm is not perated in open space. It is the duty of the parents to look after the children. The pump is operated electrically inside the room, which is not the place of playing for children and nobody is supposed to go in the room. A parents is liable for their children’s negligent act if the parents knows or has reason to know that it is necessary to control the child and the parent fails to take reasonable actions to do so. This legal theory is known as negligent supervision. Liability for negligent supervision is not limited to parents. Grandparents, guardians and others with custody and control of a child may also be liable under these circumstances. Hence the negligence in this case is on part of plaintiff and not on the defendant.

The Delhi High Court in :-

Modh. Quamuddin & Ors. V. Union of India

In this present case, the petitioners are parents of children – Najruddin, aged about 11 yeares, Sajruddin, aged about 10 years, Saddam, aged about 14 years; and Arun, aged about 11 years – who were run over by a train and have filed the present petition seeking compensation for the loss of lives of their respective children. It was held that the parents of the deceased children were well aware of the risks involved in playing near the railway tracks and despite that, they allowed their children to paly near the railway tracks. The respondent had ensured that the tracks are not at the ground level and had thus taken the necessary safety measure to ensure that the tracks are not accessible in the normal course. The railway authorities have been advertising extensively cautioning the public of the hazards of trespassing on the railway tracks. The tracks also do not present a hidden trap. In the circumstances, it is difficult to apportion any blame on the railway authorities for the tragic incident.

Therefore, It was held that, the parents of the deceased children were negligent and hence, they were responsible for the incident. Accordingly, the petition was dismissed. No order as to costs.

Issue 3. Whether the plaintiff trespassed in the area of the dependent?

Yes, the plaintiff entered into the water pump area without the permission of the defendant. It shows that plaintiff was the guilty of trespass.

Meaning of Tory:- tort comes form Latin ward “Torum”, which means “To Twist”. Thus Tort is a conduct which is not straight of lawful; but on other hand; Twisted/Crooked or Unlawful.

In this case, there is also unlawful points exists. That is the point of Trespass which is also applied here, as per the facts of the case. As the girl went into the room without the permission of the authorites, where this water pump was installed.

Meaning of Trespass:- Trespass is direct interference in the person’s possession or land with the lawful justification. It also includes the interference with some material or Tangible objects also. It is a civil wrong which comes under the law of Torts.

Issue 4. Whether the plaintiff is entitled to get any compensation from the defendant?

No, the plaintiff is not entitled to get any compensation from the defendant as, the defendant did his work in due care and there is no negligence on the part of the defendant for this incidence.

As the defendant had installed the water pump with due care, as first of all, he maintained a proper room for this. Then, and attendant was also specifically appointed to look after the pump. And this pump was installed for providing the water facility to the residents of the quarters. Thus, defendant worked for the welfare of residents of that quarters. This shows that, the defendant did his work with due care and there is no negligence on the part of the defendant for this incidence. Therefore, the plaintiff is not entitled to get any compensation from the defendant.

The Andhra High Court in:-

Mirza Mahboob Ali Baig Aslam v. Union Of India

"If the Children were trespassers, the land-owner was not entitled intentionally to injure them, or to put dangerous traps for them intending to injure them, but was under no liability if, in trespassing, they injured themselves on objects legitimately on his land in the course of his business. Against those he was under no obligation to guard trespassers."

In Robert Addie & Sons (Collieries) Ltd. V. Dumbreck:-

A four year old child was killed be a horizontal iron wheel of a haulage system belonging to a colliery company. The Court held that the child was a trespasser and there was no legal duty cast upon the colliery company to afford any protection to him. The claim for compensation was rejected.

In British Railways Board v. Herrington:- Achild aged about eight years was injured by a live electrified wire of a railway line. The court considered the earlier decision.

Issue 5. Is the value of compensation is properly calculated?

In the present suit, the plaintiff is silent regarding the amount of compensation claimed be her and also the calculation of the compensation. This shows that if plaintiff now afterwards tells anything about the compensation, those will be tentative calculations. Therefore the plaintiff cannot entitled any amount of compensation on the basis of this tentative calculations.

The Supreme Court of India in:-

Raj Kumar v. Ajay Kumar & Anr.

In this case, it is said that The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb.

There are many precedent laid down be The Hon’ble Supreme Court and respective High Courts on how to calculate the compensation. According to those precendets every suit for compensation is a unique suit which depends upon the various factor mentioned below:

1. The earning of the individual claiming compensation.

2. The medical expenses occurred due to the accident.

3. The loss of income during the period of medical treatment.

4. The future earning of the individual.

5. The age of the individual claiming compensation.

Thus, this shows that the valuation must be done by doctors, not be plaintiff himself. If plaintiff done this without the doctors consultation, then this valuation is tentative. And in this case, the plaintiff even does not tell anything about the compensation and assessment of compensation. Therefore the plaintiff cannot entitled any amount of compensation on the basis of this tentative calculations.

Registration of Resident Welfare Association

REGISTRATION OF RWA

A Resident Welfare Association (RWA) is an entity that stands for the interest of individuals living in a community or a society. All RWAs require be registering and coming under a specific jurisdiction which makes it legally responsible for punishment/penalty in case of defaults or lawlessness.

For the most part, the association is a group of members chosen by the society members. When chosen, the RWA Registration needs to register under the Societies Registration Act, 1860 and is administered by constitutional documents such as Memorandum of Association that illustrates their rights and objectives. At least seven individuals could subscribe in their name for MOA for registration under Registrar of Societies to shape themselves into a Society under Societies Registration Act, 1860.

RWA Registration could be lawfully framed by a group of Resident Owners. The requirements for registration differ from state to state. With Least 7 Individuals in the state could apply for RWA registration with Jurisdictional Registrar Office. In numerous states, Builder Apartment or Group housing society covered under state Apartment Act and therein Apartment Owners Association (AOA) Resident could be formed. Also, in different cases, RWA can be formed as well. However, these associations run on subscriptions acquired from members and this is exempt on the mutuality basis in the view that nobody could make income out of himself.

Document Required for RWA Registration

Covering Letter.

List Of Body Members ( Name, Full Address, Occupation And Signature On The List).

Address Proof Of All Body Members (Voter ID/Aadhar/Driving License).

Address Proof Of Society Registered Address (Utility Bill/ Rent Agreement With NOC From Owner).

PAN Card Of All Body Members.

Memorandum And Bye-Laws Of The Proposed Association.

One Affidavit From President ( On Stamp Paper, Notarized).

Power Of Attorney.

Building Completion Certificates Issued By Concerned Authority ( If Apply For Apartment Owners Association In Some States).

Builders Consent And/Or Representation ( If Apply For Apartment Owners Association In Some States).

Home Registry Copy ( Apply For RWA Formation Only).

Buyers Association Essential Requirement:- If Form At State Level – Minimum 7 Body Members From Same State OR Format Central Level – Minimum 7 Members From Each State.

RWA/Apartment Owners Association Essential Requirement:- Minimum 7 Body Members From The Same State. In Case Of AOA, This Minimum Number Varies State To State As Per The State Apartment ACT.



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