Sample Legal Arguments

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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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RWAs formation is Mandatory

Resident Welfare Association (RWA) is an association of people who own houses in a particular society, which is responsible for the day-to-day functioning of the complex. The real estate act says that a developer has to hand over a housing project to the residents within a few months from the time he obtains the Occupancy Certificate (OC)

The real estate act pins the responsibility on developers and builders for providing and maintaining essential services, as specified in the service-level agreements, on reasonable charges, till the residents' association can take over.

RWA UNDER RERA

The guidelines in the Real Estate (Regulation and Development) Act, 2016, say that a Resident Welfare Association (RWA) must be established in a housing society within three months from the time that a majority of the houses there have been booked. If a developer does not take steps to form an RWA for such a society, the legal owners can themselves form such a body.

As per RERA guidelines issued by the Maharashtra government, builders or developers are obliged to form a RWA and trans fer the “right of common areas“ to that association after the sale of 50% of the apartments or con dominium in the project.

In the Delhi NCR regions like Noida and Gurgaon, residential colonies of housing societies have a RWA for each colony or society and each block or pocket.

HOW IS A RWA FORMED?

The developer of a project and its residents can mutually call for an annual general body meeting to form a RWA.

The Societies Registration Act, 1860, mandates that at least 10 people (or residents) should give their names to the memorandum of association, who would then be eligible to occupy posts in the management body. If more residents are interested in becoming members, elections have to be conducted. This association can make rules based on suggestions from residents and according to the rules. Known as society bylaws, every housing society has different set of laws governing it, which are binding on each and every resident (and tenants, too).

Once the ad hoc committee or a management committee is in place, the next step is to verify documents, books of accounts, and facilities promised by the developer.

Among the important documents that the committee must scrutinize are Occupancy Certificate (OC), fund details, books of account, property title, and deposits received for facilities like club, gym, spa, etc.

Resident Welfare Associations (RWAs) are typically registered under the Societies Registration Act, 1860 (in every state the act may have state-level amendments). They are governed by constitutional documents like Memorandum of Association which contains their objectives and functions.

Anil Sharan, executive member of the RWA of G Block, Preet Vihar, Delhi, says that they are voluntary associations made by residents and that they do not have statutory powers. For example, a Resident Welfare Association cannot curb your right to hold or exercise rights over the property you own and will have its powers restricted to the contribution of sums for maintenance, the organization of workshops, cultural functions, etc.

TYPES OF RWAS

There are two types of RWAs: Resident Welfare Associations and Co-operative Housing Societies.

Compared to the power of co-operative housing societies, the powers of Resident Welfare Associations are limited. They have no statutory powers as they are voluntary organizations created to manage the residents' interest. Co-operative Housing Societies have authority like the power to give permission or refuse transfer of a multi storey flat by a member.

GOVERNING BODY

The governing body includes office bearers like president, vice-president, general secretary, secretary, treasurer, finance advisor and executive members.

A RWA should have a governing body of the society to look after and manage the day-today affairs of the society. Any house owner in a society, except tenants, can be a member of its RWA.

Source :- The Times of India | October 16, 2017

EX PARTE DECREE

An ‘Ex parte decree’ is a decree passed against a defendant in absentia. Despite service of summons, where on the date of hearing only plaintiff does and a defendant does not appear the Court may hear the suit ex parte and pass a decree against the defendant. The legal validity, enforceability and operation of such decree is similar to any bi-parte decree.

The Supreme Court has held that a decree passed after taking plaintiff’s evidence, without the appearance of defendant at the trial stage, is an ex-parte decree, which could be set aside under Order IX Rule 13 of the Code of Civil Procedure.

The bench of Justice A M Sapre and Dinesh Maheshwari passed the order in the case G.Ratna Raj by LRs vs Sri Muthukumaraswamy Permanent Fund Ltd, which was an appeal against a High Court judgment, which set aside a preliminary decree under Order IX Rule 13 CPC.

The preliminary decree was passed in a suit for redemption of mortgage. Though the defendants had made appearance and filed written statement, they did not appear at the stage of evidence. So, the plaintiff’s evidence was recorded in the absence of defendant. The defendant’s evidence was closed on its non-appearance.

Based on plaintiff’s evidence, the trial court passed a preliminary decree, upon which the defendant filed application under Order IX Rule 13 CPC. The application was rejected by the trial court holding that the decree was not passed ex-parte. This was challenged in the High Court, which reversed the trial court’s rejection and set-aside the decree.

Questioning the High Court’s order, the plaintiffs came in appeal in SC.

The SC first analysed whether the trial court proceeded under Rule 2 or Rule 3 of Order 17 CPC.

Order 17, Rule 2 CPC stated that in the event of non-appearance of a party to the suit, the Court may proceed to dispose of the suit in any of the modes specified in Order IX. However, Explanation to Rule 2 said that if evidence or substantial portion of evidence of any party has been recorded, and such party fails to appear, then the Court may proceed to decide the case.

Order 17, Rule 3 CPC dealt with situations where a party commits default in producing evidence or witnesses, or in performing any act necessary for the progress of the suit, for which time was granted. In such cases, the Court may proceed to decide the suit, notwithstanding the default, if parties are present( Rule 3(a)). If parties are, or any of them is, absent, the Court may proceed in the manner specified in Order IX(Rule 3(b)).

Order IX Rule 6(a) specified that in the absence of defendant, the Court may proceed the suit ex-parte, if defendant has been duly served.

So, the issue before the Court was whether the decree was passed by taking recourse to Order IX, or by invoking Explanation of Rule 2, Order 17 on the basis of plaintiff’s evidence.

The SC ruled that the decree was not passed invoking Explanation 2 of Rule 2, Order 17. That situation will arise only if the party absent is the party who had given evidence. But here, the party absent is the defendant, who had not given evidence.

“in our view, the case at hand would not fall under Explanation to Order 17 Rule 2 of the Code because in order to attract the Explanation, “such party” which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treat “such party” as “present” on that day and is accordingly empowered to proceed in the suit”.

The Court proceeded to observed :

“In this case, the party, who was absent and was proceeded ex parte was the “defendants” and they had not led any evidence whereas it was the plaintiff, who was present and had led his evidence”.

It was found that the Court proceeded under Order 17 Rule 2 by taking recourse to Order IX Rule 6(a) against the defendant.

“The Trial Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree. Such decree, in our opinion, was an “ex parte decree” within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants”, held the judgment authored by Justice Sapre.

The bench followed the 2003 SC judgment in B. Janakiramaiah Chetty vs. A.K. Parthasarthi & Ors in reaching its conclusion

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