CAPITULO 4. PRINCIPALES MEDIDAS MACROECONOMICAS ADOPTADAS POR EL GOBIERNO NACIONAL A PARTIR DE 2002
4.5. Perspectivas mundiales para el sector
26.1 Summons to defendant.— The Writ of Summons to appear
and answer shall be in one of the Form Nos. xx, xx and xx as may be applicable to the case with such variations as the circumstances of the case may require.
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CHAPTER 27
SPECIAL PROVISIONS REGARDING WRITTEN STATEMENT, SET OFF AND COUNTER-CLAIM
27.1 Payment with denial of liability.—
(a) In an action for damages the defendant may at any
time after he has filed his appearance in person or a vakalatnama pay into Court a sum of money in satisfaction of the plaintiff’s claim with a denial of liability.
(b) Notice of such payment shall be given to the plaintiff.
The notice shall be in Form No.XX with such variations as the circumstances may require.
27.2 Mode of withdrawing money paid with denial of
liability.—After the money is paid into Court under the last preceding rule, the plaintiff may, without prejudice to his claim under Section 34 of the Code of Civil Procedure, 1908, within 7 days of the receipt of notice of payment into Court apply by Interim Application for payment of the said money to him in satisfaction of his claim and the Court may at the hearing of the summons make such order as to payment of the money and costs as it thinks fit.
27.3 Applicability to other proceedings.—The aforesaid Rules
shall apply mutatis mutandis to Land Acquisition References
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CHAPTER 28
THIRD PARTY PROCEDURE
The rules in this Chapter (“Third Party Procedure”) are subtantially part of the Code of Civil Procedure, 1908 as amended vide Maharashtra Amendment published in the Maharashtra Government Gazette, Pt.IV- K, p.788 dated 31.12.1987 as Rules 11 to 36 of Order VII. The same are included in these Rules for convenience and the Maharashtra Amendment shall be deemed to stand modified by these Rules, where necessary.
28.1 Third party notice.—Where in a suit a defendant claims
against any person not already a party to the suit (hereinafter called the Third Party)—
(a) that he is entitled to contribution or indemnity, or
(b) that he is entitled to any relief or remedy relating to or
connected with the subject matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff, or
(c) that any question or issue relating to or connected
with the subject matter of the suit is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and the third party or between any or either of them,
such Defendant may apply to the Court for leave to issue a Notice (hereinafter, “the Third Party Notice”) against such Third Party.
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The Defendant shall file an Affidavit in support of such Third Party Notice.
28.2 Form and service of notice.—
(a) The Third Party Notice shall:
(i) State the nature of the claim made by the
plaintiff against the defendant and
(ii) Also state
(A) the nature and grounds of the claim made by the defendant against the Third
Party or
(B) the nature and the extent of any relief or remedy claimed by him against the Third Party or
(C) the nature of the question or issue sought to be determined and
(b) The Third Party Notice shall be sealed and served on
the Third Party in the same manner as a writ of summons.
(c) Time for service shall commence running from the
date of the order granting leave to issue the Third Party Notice.
(d) A copy of the plaint and a copy of the affidavit of the
defendant in support of the Third Party Notice shall be served on the Third Party along with the Third Party Notice.
(e) Such Notice shall be in Form No.17 or No.18 with such
variations as the circumstances of the case may require.
(f) A copy of the Third Party Notice and the affidavit of
the defendant in support of the Third Party Notice shall be furnished to all parties to the suit within two weeks from the date of the order granting leave to
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issue the Third Party Notice.
28.3 Effect of service of notice.—The Third Party shall, as from
the time of the service upon him of the Notice, be a party to the suit with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.
28.4 Third party to enter appearance or vakalatnama.—If the
third Party desires to dispute the plaintiff’s claim in the suit as against the defendant on whose behalf the Notice has been issued or his own liability to the defendant, the Third Party shall enter an appearance in person or a vakalatnama in the suit within two weeks from the service of the Notice;
Provided that a person so served and failing to appear by the returnable date may apply to the Court for leave to appear and such leave may be given on such terms as the Court may think fit.
28.5 Consequence of failure to enter appearance or
vakalatnama.—If the Third Party does not enter an appearance in person or a Vakalatnama he shall be deemed to have admitted the claim stated in the Third Party Notice and shall be bound by any judgment or decision in the suit, whether by consent or otherwise, in so far as it is relevant to any claim, question or issue stated in the Notice.
28.6 Decree when third party makes default in appearance or
vakalatnama.— Where the Third Party defaults in entering an appearance in person or through an Advocate in the suit—
(a) where the suit is decreed after trial in favour of the
plaintiff, the Trial Court may, at or after the trial, pass such decree in favour of the defendant against the Third Party as the nature of the case may require;
Provided that execution thereof shall not issue without the leave of the Court until the decree against the defendant has been satisfied, and
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(b) in cases where the suit is decreed in the plaintiff’s
favour otherwise than by trial, the Court may, at any time after the decree against the defendant has been satisfied, on the application of the defendant by Interim Application pass such decree in favour of the defendant against the Third Party as the nature of the case may require.
28.7 Third party to file affidavit in reply.— If the Third Party
enters an appearance in person or through an Advocate he shall within two weeks thereafter file an affidavit in reply to the Affidavit of the Defendant in support of the Third Party Notice, setting out his case in respect of the Third Party Notice and his case, if any, in respect of the Plaint.
28.8 Appearance of or vakalatnama on behalf of third party.—
(a) Where the Third Party enters an appearance in person
or through an Advocate and files his affidavit as required by the last preceding rule, and the suit appears on board for directions before the Court, the Court may—
(i) order any claim, question or issue stated in the
Third Party Notice to be tried in such manner, before, at or after the trial of the suit, as the Court may think fit and may, in that event, give the Third Party leave to defend the suit either alone or jointly with any defendant, upon such terms as he may think just, or to appear at the trial and take such part therein as he may think just and generally may make such orders and give such directions as to the Court may appear proper for having the questions and the right and liabilities of the parties most conveniently determined and enforced and as to the extent to which the Third Party shall be bound or made liable by any decree in the suit; or
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(b) Any order made or direction given under this rule may
be varied or rescinded by the Court at any time before the disposal of the suit.
28.9 Defendant to take out Interim Application for directions
in certain cases.—Where for any reason it is not possible for the Court to give directions on the Third Party Notice at the time when the suit appears on the board for directions, the defendant issuing the Third Party Notice shall, within two weeks, after the filing of the affidavit in reply by the Third Party, apply for directions by Interim Application addressed to the Third Party and to all parties to the suit. Upon the hearing of such application, the Court may pass such orders and give such directions as are mentioned in the last preceding rule.
28.10 Costs.—The Court may decide all questions of costs as
between a Third Party and the other parties to the suit, and may order any one or more to pay the costs of any other, or others, or give such direction as to costs as the justice of the case may require.
28.11 Setting aside third party proceedings.— Proceedings on a
Third Party Notice may, at any stage of the proceedings, be set aside by the Court.
28.12 Right of the third party and of each successive third party
to apply for third party notice against other persons.—
(a) Where the Third Party makes against any person not
already a party to the suit (to be called “the Second Third Party”) such a claim as is mentioned in rule 1 of this Chapter he may by leave of the Court issue a Third Party Notice to that effect.
(b) Where the Second Third Party in his turn makes such
a claim as is mentioned in rule 1 of this Chapter against any person not already a party to the suit (to be called “the Third Third Party’”) or where each successive Third Party in his turn makes such a claim against any person not already a party to the suit, such
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Second “Third Party or any successive Third Party in his turn makes such a claim against any person not already a party to the suit, such Second or successive Third Party, as the case may be, may, by leave of the Court issue a Third Party Notice to that effect.
(c) The provisions contained in the preceding rules as to
the Third Party procedure shall, with necessary modifications, apply to all cases where Third Party Notices have been issued, whether at the instance of the Third Party or any successive Third Party.
28.13 Right of defendant to issue third party notice against co-
defendant.—
(a) Where a defendant makes against a co-defendant
such a claim as is mentioned in rule xx of this Chapter he may, without leave of the Court, issue and serve on such co-defendant within six weeks from the service of the Writ of Summons upon the defendant making the claim, a notice stating the nature and grounds of such claim and shall at the same time file an affidavit in support of such claim and furnish copies thereof to all parties in the suit.
(b) The provisions contained in the preceding rules
regarding Third Party procedure shall, with necessary modifications, apply to cases where a defendant has issued such notice against a co-defendant, but nothing herein contained shall prejudice the rights of the plaintiff against any defendant in the suit.
28.14 Third Party proceedings in a counter-claim.—Where in any
suit a counter-claim is made by a defendant, the provisions contained in the preceding rules regarding Third Party procedure shall, with any necessary modifications, apply in relation to the counter-claim as if the subject-matter of the counter-claim were the subject matter of the suit, and as if the person making the counter-claim were the plaintiff and the person against who it is made a defendant.
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CHAPTER 29
DISCOVERY AND INSPECTION
29.1 Agent may make affidavit of documents when a party is
not residing in Greater Mumbai.—Where the transactions which form the subject-matter of a suit have been carried on wholly or principally in Greater Mumbai and any party is not residing in Greater Mumbai at the time an affidavit of documents is required to be filed, such affidavit may be made on behalf of such absent party by his agent in Greater Mumbai.
29.2 Procedure where the affidavit is required to be made by
absent party personally.—If in the case provided for by the last preceding Rule , any party desires to have such affidavit made by all or any of the absent parties personally, he shall be at liberty to apply on an Interim Application for an order to that effect to the Court setting forth the grounds for making such order and the Court after hearing the opposite party may make such order; but the party obtaining it shall, before serving the same, deposit a sum of Rs.1,000 in Court for the cost of the opposite party of such order and affidavit, which costs shall be dealt with by the Court which tries the case.
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CHAPTER 30
MATTERS ARISING PENDING SUIT
30.1 Ex-parte applications for formal amendment of filings
and other documents.—Applications for amendment of filings and other documents for the purpose of rectifying clerical errors or typographical errors in names, dates or sums may be made to the Registrar-General.
30.2 Amendments how to be made.—
(a) If the amendment be by omitting some original
matter, the said matter shall be struck through with a single line ensuring that the deleted portion is legible.
(b) In cases of an addition by amendment, the matter to
be added shall be typed and pasted into the original filing.
(c) All amendments other than those in (a) above shall
(i) Be in bold face and enclosed in curly brackets
({})
(ii) In the margin thereof contain an endorsement
indicating the date when the amendment was carried out and also the date of the order permitting the amendment.
(d) Subsequent amendments shall also indicate the
number of the amendment (“second amendment”; “third amendment” etc)
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ILLUSTRATION: AMENDMENT HOW TO BE MADE
Amendment made on 5.1.2011, vide order dt. 15.12.2010 in IA 345/2010
{By a letter dated 7 July 2007, the 1st
Defendant requested the Plaintiff to forward copies of the relevant documents}
2nd Amendment; made on 8.1.2011, vide order 18.12.2010 in IA 349/2010
{Set out amended text}
30.3 Amendment for Addition of Parties.—Where any
amendment is sought for addition of parties to any proceeding, unless the Court otherwise directs, service of the proceeding shall only be required as provided in these Rules after the proceeding has been amended to join the parties thereto.
30.4 Attestation of amendment.—Any amendment made
pursuant to an order shall be attested by the Officer designated by Registrar-General or Master and Assistant Registrar(O.S.)/Prothonotary or any one of the Assistant Masters or Associates.
30.5 Directions to be given.—On the returnable date of the
Writ of Summons or such later date as may be assigned, the Judge shall, for the speedy determination of the suit and the avoidance of multiplicity of interlocutory proceedings, give such directions with respect to pleadings, interrogatories, particulars, admission of facts and documents, examination of witnesses, discovery, inspection and production of documents, fixing a date for setting issues and for trial of any issues are preliminary issues, fixing a date for hearing of the suit and such other matters, as he may think fit.
30.6 No affidavit to be made.—No affidavit shall be made or used
by any party when the suit is on board for directions, except by leave of the Court.
30.7 Plaintiff's admission of such defence and procedure
thereon.—Whenever any defendant in his Written Statement alleges any grounds of defence which have arisen after the commencement of the suit, the plaintiff may file an
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admission of such defence in Form No.XX and, if such defence is an answer to the whole suit may thereupon apply to the Court for leave to withdraw the suit.
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CHAPTER 31
COMMISSIONER FOR RECORDING EVIDENCE
31.1 Marking of Documents.—Before the evidence Affidavit is
filed, commonly admitted documents should be tendered in a compilation to Court and the Court may mark them in evidence.
31.2 Procedure for and upon filing of Affidavit in lieu of
Examination-in-Chief.—
(a) Each party shall file the respective Affidavits in lieu of
Examination in Chief of each of his witnesses consecutively, i.e., the affidavit of every subsequent witness following the first witness shall be filed after the cross-examination of the first witness is completed. The Court may fix such schedule for this purpose as it thinks fit.
(b) Upon the filing of each Affidavit in lieu of
examination-in-chief, the Affidavit will be placed before the Court for directions and all objections as to admissibility of any portion of the Affidavit and as to the admissibility of all documents sought to be proved by such Affidavit shall be decided by the Court.
(c) In the event that the Court marks any document
subject to proof of contents, then the fact that questions in cross-examination have been put in respect of such documents while evidence is being recorded by the Commissioner for Taking Accounts shall not result in such documents being proved PROVIDED THAT such questions in cross- examination are put subject to a specific objection
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taken and recorded in respect of each such document.
31.3 Appointment of Commissioner for Recording Evidence.—
On receipt of the Affidavit in lieu of Examinationin-Chief, of the witnesses on affidavit with documents under Order 18, Rule 4 (Amendment Act, 2002 of the Code of Civil Procedure), the Court may appoint a Commissioner for recording cross-examination or re-examination of the witnesses, as the case may be.
(a) Any Advocate or retired judge of the subordinate
judiciary may be appointed Commissioner for recording evidence by consent of parties, even if such Advocate or retired judge is not on the panel of Commissioners formed by the High Court under these Rules;
(b) On failure of parties to agree upon the name of a
person to serve as Commissioner, the Court may appoint any person from the Panel to serve as such Commissioner, and the allotment of work shall be by rotation so as to ensure as far as possible an even distribution of work among the members of the panel.
31.4 The Panel of the Commissioner shall be formed of Retired
Judges of the Subordinate Judiciary and from the Members of the Bar, practising in the High Court at Bombay having minimum five years’ practice as an Advocate, having ability to record the evidence and willing to be appointed on the