INTERPLEADER SUIT

 

  The Code of Civil Procedure

            Interpleader Suit 

     (Section 88, Order 35 CPC. 

If the actual owner of the property dies without transferring the property to anyone and in possession of a third person directly or indirectly ,then the interpleader suit lies. 

      In the interpleader suit , plaintiff files a suit against the claimants rival to each other for choosing the actual owner of the property.The Plaintiff may be the direct or indirect possession of the property. There  must be more than one defendant in this suit. Any of the defendant can bring the suit for the claim of property. 

Essentials:-

*The interpleader suit is a suit in which several claimants. 

*Who are claiming the property against each other. 

* Matter in dispute is the title to the movable or immovable property or money.

* The claim must be intersee the the Defendants only. 

*The plaintiff has no claim nexus with property in dispute. 

Section 88 CPC is reproduced infra:-

88. Where two or more persons claim adversely to one another the same debt, sum of money or other property movable or immovable, from another person, who claims no interest therein other than or charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of' interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself:

Provided that where any suit ii pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted,

1) Definition. 

    To go for trial  for determination of  rights of two or more parties having dispute of rights. 

2) Where interpleader suit may be reinstituted (Section 88 CPC) 

*Two or more persons claim adversely to eacother for debts, sum of money or other property, movable or immovable,

* Claim is from another person, who has no claims or interest  other than for charges or costs 

*Plsintiff is ready to pay or deliver it to the rightful as per Court findings. 

*Any of Claimants or from ehom they claim may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision.

     * If any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted.

3) Object of interpleader suit -

 √ Claims of rival dependents adjudicated.

4) Conditions 

a) There must be debt, sum of money or other movable or immovable property in dispute

b) There must be two or more persons claiming adversely to one another

c) The person from whom such debt,  money or movable or immovable property is claimed must not be claiming interest therein other than two charges and cost and he must be ready and willing to pay or deliver it to the rightful claimant.

d) There must be no suit pending wherein the rights of rival claimants and can be properly adjudged.

5) Who cannot file interpleader suit - (Order XXXV Rule 5) 

* An agent vs principal. 

* A tenant vs landlord

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Watch video on link infra:-

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IPSI DIXIT OF POLICE

 Ipsi dixit ..من مانی حرکات.of Police 

is not binding upon the Court. I.O. only to collect evidence and not to give findings upon innocence or guilt of accused.

2010 SCMR 1791...1992 SCMR 2055

 Zzzzzz

 ملزم۔۔۔بریت

249-A.CrPc. 

  It is Power of Magistrate to acquit accused at any stage of trial if :-

 * After hearing the prosecutor and the accused and 

*For reasons to be recorded, 

* The charge is considered groundless or 

*There is no probability of the accused being convicted of any offence.

* It is an exception to the general rule of acquittal after full trial. 

*This is a emblem of good will between collective good of society and rights of an individual offender. 

* Scheme of Law is to save the offender from agony of full trial. 

       PLJ 2004 S.C. 2.

*It does not curtail  the power of High Court under S. 561-A or in derogation of it. PLD 1981 S.C. 607. 

* Trial Court is free to peruse the police papers, other material and legal aspect of the case. NLR 1999 Cr.L.J. 137. 

* Where Court is reasonably convinced that a criminal charge cannot be sustained, going on trial is not necessary, but charge cannot be said to be groundless within the meaning of S. 249-A, Cr.P.C. if reasonable opportunity is not provided to prove the allegation. Recording of prosecution evidence is 

not a condition precedent for acquitting accused. Magistrate can deal with application at any time irrespective of the fact whether charge is framed or not. 2003 YLR 2749.

* Magistrate under this section is bound to issue notice to the State and that discretion can only be exercised after hearing both parties and after submission of challan in the Court. 2005 PCr.LJ 252.

Audi Alteram partem

* Requirements are that the hearing is to be given to the prosecution and counsel of accused and that reasons are to be recorded in support of the conclusion that charge is groundless or that there is no probability of the accused being convicted. 2003 YLR 1390. 

* Hearing of prosecutor and the accused. 2000 MLD 220. 

* Court has to satisfy itself that the case under consideration is a fit case for its interference even at preliminary stage. 2000 MLD 220. 

* Charge groundless or that there is no probability of the accused being convicted. PLD 1996 Kar 253. 

*No restriction on the power of trial Court to pass order without framing charge. PLJ 1999 Cr.C. Lah. 265. 

*Court not powerless to secure attendance of witness, PLD 1984 S.C. 428; 

* The court has to provide opportunity hearing to the State, 1986 PCr.LJ 1824; 1987 PCr.LJ 1633; 1990 PCr.LJ 113; and the counsel of accused. 1994 SCMR 798. 

* Operative part of the judgment not revealing application of independent judicial mind, judgment not sustainable in the eye of law. 1988 PCr.LJ 2002. 

* It is necessary that an application is made by the accused. 1990 MLD 206. 

* Magistrate to examine 

(i) FIR     (ii) Statement of P.Ws. u/S. 161        (iii) Report of police officer u/S. 173;

 (iv) Charge framed before arriving at the decision whether there is no probability of the accused being convicted. Acquittal without looking such a material on record illegal, set aside. 2000 MLD 220; PLD 1970 S.C. 173; PLD 1964 S.C. 829. 

* It is necessary that prosecution should be given opportunity to prove the allegation levelled in the FIR. 2000 PCr.LJ 752. 

* Witnesses not cross examined, their examination in chief would be deemed to be admitted. PLJ 2003 Lah. 557.

Remedy. 

An order passed u/S. 249-A amounts to an order of acquittal, as such the remedy to assail the same lies in filing appeal against acquittal u/S. 417, Cr.P.C. 1998 MLD 1605; NLR 1999 Cr. Lah. 185. 

* Prosecution not given opportunity to prove allegations--Cannot be said that there was no probability of conviction. 2000 PCr.LJ 752

Co Sharer

                Co Sharer 

         PLJ 2010 AJ&K 112

Present: Rafiullah Sultani, J.

MUHAMMAD ZAREEF KHAN and another--Petitioners

versus

MUHAMMAD MAROOF and 6 others--Respondents

C.R. No. 12 of 2008, decided on 4.4.2009.

Co-sharer--

----Every co-sharer has interested in each and every inch of joint property and one co-sharer could not be permitted to alter the character of property without consulting the other co-sharer.        [P. 117] A

                                                                                 1994 CLC 2409, 2000 CLC 1138, ref.

Civil Procedure Code, 1908 (V of 1908)--

----S. 115, O.XXXIX, R. 2(3)--Specific Relief Act, 1877, Ss. 42 & 54--Cancellation of interim injunction--Undertaking though affidavit to remove superstructure if decree is passed in favour of petitioner--Held: Not a valid & legal ground for cancellation--One of the conditions to be considered for the issuance of injunction is to avoid multiplicity of the suit.        [P. 117] B & C

Joint immovable property--Co-sharer's rights--Extent of--In case of joint immovable property, each co-sharer deemed to be interested in every inch of subject-matter irrespective of quantity of his interest--One co-sharer cannot be allowed to act in a manner which constitutes an invasion on the right of other co-sharer--Co-sharer in possession of a portion of joint property cannot change nature of property in his possession unless partition takes places by metes and bounds."

It was held in case titled Sardara & 04 others Vrs. Muhammad Khan, reported in PLD 1998 SC of Pak. 1509, cap. (b) , which reads as under:--

"(b) Co-owner----

----Constitution of Pakistan (1973), Art. 185--Cutting and selling trees growing on joint land by one co-owner to the exclusion of other co-owners--Entitlement challenged--Trial Court had dismissed plaintiff's suit on the ground that he was no longer co-owner of property in question wherein trees had grown and were being cut and sold--Appellate Court, however, set aside judgment and decree of trial Court and decreed plaintiff's suit--Judgment and decree of Appellate Court which was affirmed in revision by High Court was based on correct appreciation of documentary evidence adduced by plaintiff--Appellate Court and High Court had rightly maintained that land in question, being joint and having not been partitioned between parties, defendant could not unilaterally cut and sell trees growing there, or raise any construction thereon-Judgment and decree of High Court did not call for interference by Supreme Court which were maintained in circumstances."

"(c) Specific Relief Act----

Stay against Co Sharer

----Ss. 42 & 54--CPC, O. XXXIX, Rr. 1 & 2--Suit for declaration and permanent injunction--Prayer for temporary injunction to restrain defendant (co-sharer) from alienating joint property--Trial Court refused to grant such temporary relief, but Appellate Court granted the same--Validity--All ingredients for grant of temporary injunction coexisted in favour of plaintiff--Non-passing of order to restrain defendant from alienating joint property would have resulted in multiplicity of proceedings-Appellate Court had not committed any irregularity or illegality in setting aside order of Trial Court--High Court dismissed, revision petition."

This view also gets support from case laws; 1994 CLC 2409 and 2000 CLC 1138.

Legal phrases

 

Facta probanda      (facts in issue)

                  1- Material facts pleaded/stated in the Plaint.

             2-The material facts on which the party relies for his claim.

             3.They must be stated in the pleadings.

             4.Only relevant facts to be proved at the trial to establish the fact in issue.

             5. Pleadings must contain only facta probanda and not facta probantia.

•√  Facta probantia (particulars or evidence)

                        (relevant facts)

1-The facts to prove facta probanda (material facts) .

2-Need not be set out in the pleadings.

3-They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue.

Doctrine Non Feasance I Legal Maxims I Mis Feasance IHK Legal Tv I Haami...

Doctrine Non Feasance

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MIS FEASANCE

                                       DOCTRINES   LEGAL

.1-Malfeasance * 

Malfeasance is the willful and intentional action causing injury to a party. Official misconduct, is the commission of an unlawful act, done in an official capacity willfully.Intentional  wrongful or unlawful conduct, especially by officials or public employees.Malfeasance is at a higher level of wrongdoing.

* Misfeasance is the willful inappropriate or incorrect action or advice.

The commission of a lawful act, done in an official capacity but  improperly causing  harm. 

"Nonfeasance," which is the failure to perform an official duty.Nonfeasance is the failure to act where to  act as per law,rules and social duties.Is duty of care in law of torts.

 It is will  neglect to perform duty.

cause of action in cpc

                                                 CAUSE OF ACTION   

ALSO WATCH... 

https://youtu.be/LPdohexzQHY              

             Legal Parlance:- 

      Essential facts germinating a right and its infringement  entitles a person to bring a civil           suit against the wrong doer or any one liable for it.

Legal Rights of a person are infra;-

 1-PERSON-----                                        2-PROPERTY.

1-PERSON-     Inherent rights,  

 > Havining no discrimination  of   race, sex, nationality, Ethnicity, (the fact or state of belonging to a social group that has a common national or cultural tradition.) language, religion, or any other status.  

* Right to …..*live……..* liberty, … *Good Reputation,, …*freedom of opinion and,……. * the right to work…..*get  education,.. 

2-PROPERTY.          The rights of property corporal and intellectual ownership.

A-Moveable  and immoveable Property.

B-Non-human creatures like dogs, cats, horses or birds.

C-Intellectual property such as inventions, ideas, or words.

Infringement of any right ,a person set the law either CIVIL or CRIMINAL in to motion. Such Infringement is the reason to initiate legal process in the Civil court for violation of Civil Rights  .The reason for going to the court is called CAUSE Of ACTION.

You will have to express and establish cause of action in the Plaint. 

Cause of Action  is  :-

²    A) a set of Facts or Allegations.   B)    makes up the grounds,   C)     for filing a suit.

  Having no Definition in Civil Procedure Code1908 ,The term Cause of Action has been elucidated infra ; 

Also watch on yutube:-

cause of action.https://youtu.be/LPdohexzQHY              

The term Cause of Action has been used infra ;

  I-Order II Rule 2-5,      ii-Order VII Rule 11(a),

The flow chart may be helpful to understand the term cause of action;