Odisha Judicial Service Examination (Prelims) - 2014

The Constitution (97^th Amendment) Act, 2011 inserted the words "or co-operative societies" after the words "or union" in part III under Art. 19 (1)(c) of the Constitution.

Indian Constitution was adopted by the Constituent Assembly on 26^th November 1949 and came into effect on 26^th January 1950.

In this case, Samajwadi Party leader Jaya Bachchan was disqualified as Rajya Sabha member on the grounds of holding an office of profit. 

Passive euthanasia is legal in India. The Supreme Court of India legalised passive euthanasia by means of withdrawal of life support to patients in a permanent vegetative state. 

Article 3 of the Indian Constitution states that Parliament may by law form a new state by separation of a territory from any state or by uniting two or more states or parts of states or by uniting any territory to a part of any state. 

Article 123 of the Constitution grants the President certain law making powers to promulgate ordinances when either of the two houses of Parliament is not in session and hence, it is not possible to enact laws in the Parliament.

Article 317 of the Indian Constitution states provision in accordance with removal or suspension of a member of Public Service Commission.

The phrase "President's rule" refers to the imposition of Article 356 of the Constitution of India on a state whose constitutional machinery has failed. In the event that a state government is not able to function as per the Constitution, the state comes under the direct control of central government. In other words, it is "under President's rule".

Set-off means a claim set up against another. It is an extinction of debts of which two persons are reciprocally debtors to one another by the credits of which they are reciprocally creditors to one another. Where there are mutual debts between the plaintiff and the defendant, one debt may be settled against the other.

Under Article 233 of the Indian Constitution, appointments of persons to be and the posting and promotion of district judges in any state shall be made by the Governor of the state in consultation with the High Court exercising jurisdiction in relation to such state. 

Section 10 of the Code of Civil Procedure provides rule with regard to stay of suits where things are under consideration or pending adjudication by a court.

Pith means "true nature" or "essence" and substance means the essential nature underlying a phenomenon. Thus, the doctrine of pith and substance relates to finding out the true nature of a statute. This doctrine is widely used when deciding whether a state is within its rights to create a statute that involves a subject mentioned in Union List of the Constitution.

At the stage of passing an interlocutory order such as on an application for the grant of ad interim injunction under Rule 1 or 2 of Order 39 of the CPC, the competent court shall have to form its opinion on the availability of a prima facie case, balance of convenience and irreparable injury, the three pillars on which rests the foundation of any order of injunction.

Under the Code of Civil Procedure, the objective of attachment before judgment must be to prevent future transfer or alienation. 

Where a party to a suit requires information as to facts from the opposite party, it may administer to its adversary a series of questions. These questions are called interrogatories.

Under Order I Rule 8, it is defined as a suit filed by or against one or more persons on behalf of themselves and others having the same interest in the suit.

Under Section 113 of the Code of Civil Procedure, a reference is to enable subordinate courts to obtain in non-appealable cases the opinion of the High Court in the absence of a question of law and thereby avoid the commission of an error which cannot be remedied later on.

A receiver is a person appointed by a court or judge thereof to take charge of a property during the pendency of a civil action or upon a judgment or order therein and to manage and dispose of it as the court may direct.

The object of investigation under criminal law is to collect evidence that aids the court in finding out the truth, whether the accused is guilty or not.

In an interpleader suit, the plaintiff holds movable or immovable property and files the suit only to ascertain as to whom he should deliver the property because the defendants claim the property against each other or they interplead against each other. Thus, A can file interpleader suit.

In legal set off, claim need not originate from the same transaction and in equiatable set off, claim must originate from the same transaction. 
In legal set off, the sum must be ascertained, but in equitable set off, the sum need not be ascertained.

A court is presided over by a judge appointed by the High Court of that particular state.

Every person is bound to assist a magistrate or police officer reasonably demanding his aid in taking or preventing the escape of any other person whom such magistrate or police officer is authorised to arrest or
in the prevention or suppression of a breach of peace or
in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property.
 

Section 41 of the Code of Criminal Procedure deals with the provisions when a police officer may arrest without warrant. All of the above cases fall under Section 41 of the Code of Criminal Procedure.

Exception to this rule is contained in section 65 of the Evidence Act.

Section 164 A of the Code of Criminal Procedure deals with medical examination of a victim of rape.

The court in Shambhu Dass v. State of Assam, AIR 2010 SC 3300 held that neither FIR nor inquest report nor post-mortem report can be regarded as substantive piece of evidence. 

Section 407 of the Code of Criminal Procedure confers the power upon the High Court to transfer cases and appeals. 

Causing miscarriage is an offence punishable under the Indian Penal Code (45 of 1860), with the permission of the court before which any prosecution for such offence is pending, may be compounded by the woman to whom miscarriage is caused.

Under Section 217 of the Code of Criminal Procedure, whenever a charge is altered or added to by the court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon, and examine with reference to such alteration or addition any witness who may have been examined, unless the court for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice. 

Section 32 – Multiple dying declarations – Reliability – Accused was named in all dying declarations as per who poured kerosene on deceased and set him on fire. Dying declarations though more than one not contradictory to and inconsistent with each other. 

As per Section 223 of the Code of Criminal Procedure, the following persons may be charged and tried together, namely:
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
(c) persons accused of more than one offence of the same kind, within the meaning of Section 219 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction 

DNA test cannot rebut the conclusive presumption envisaged under section 112 of the Indian Evidence Act. The parties can avoid the rigor of such conclusive presumption only by proving non-access which is a negative proof; Shaik Fakruddin v. Shaik Mohammed Hasan, AIR 2006 AP 48.

Propositions regarding confession of a co-accused, not required to be on oath and cannot be tested by cross examination are the only limited uses which can be made of a confession of a co-accused by way of furnishing an additional reason for believing such other evidences as exists and is a weak type of evidence and is much weaker than the evidence of an approver.

Section 114 of the Indian Evidence Act says that the court may presume that an accomplice is unworthy of any credit unless corroborated in material particulars. Sec. 114 the word “may’ is used. 

A dispute regarding handwriting can be proved by calling and expert or examining a person acquainted with the handwriting of the writer of the questioned document.

Cockburn, C.J. said, "the doubt, the benefit of which the accused is entitled, must be such as rational thinking sensible man may fairly and reasonably entertain, not the doubts of a vacillating mind that has not the moral courage to decide but shelters itself, in a vain and idle skepticism.

Dr. Kumar Saha v. Dr. Sukumar Mukheijee is the case which referred to the principles of Praful Desai judgement.

Section 85B of the Indian evidence act states that In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates. 

Under section 166 of the Indian Penal Code, whoever being a public servant knowingly diso­beys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will by such disobedience cause injury to any person, shall be punished. A has committed the offence defined in Section 166.

The Hon'ble Apex Court in Rang Bahadur Singh V. State of U.P. reported in AIR 2000 SC 1209 has held as follows:
“The time-tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt, a conviction cannot be passed on the accused.

Thoughts alone can never be punished as crime. Lawmakers are hesitant to impose controls on what people may think, and such laws would also present profound problems of proof and enforcement.

A statute can exclude mens rea in case where the public nuisance or public interest is in issue. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. 

Criminal conspiracy is defined under Section 120A of the Indian Penal Code. 

Section 390 of the Indian Penal Code defines robbery. According to this section, robbery is the aggravated form of either theft or extortion because in all robbery, there is either theft or extortion.

House-trespass is treated as an aggravated form of offence of criminal trespass.
The difference between criminal trespass as defined in Section 441 and house-trespass as defined under Section 442 is that the offence of criminal trespass is committed when a person enters into or upon any ‘property’ of any one with intent to commit an offence or to intimate or to insult or to annoy him while house trespass can only be used as a human dwelling or any place used for worshipping or as a place for the custody of property.
So, A has committed the offence of house trespass defined under section 442.

Whoever intentionally puts any person in fear of any injury to that person or to any other and thereby dishon­estly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits “extor­tion".
X has committed the offence of extortion.

Whenever force or violence is used by an unlawful assembly or by any member thereof in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting under section 146 of the Indian Penal Code.

As per section 24 of the Limitation act, all instruments shall for the purposes of this Act be deemed to be made with reference to the Gregorian calendar.

For example, the offence of battery requires the application of 'unlawful' physical force, where the person consents to being touched, the application of force is 'lawful'. The defence of consent does not apply to all crimes. Indeed it can never be used for murder or grievous hurt.

The Law of Sedition relates to the uttering of the seditious words, the publication of seditious libels, and conspiracies to do an act for the furtherance of a seditious intention.

Section 3 of the Limitation act applies to every suit instituted, appeal preferred and application made.

Under section 3 (1) clause (b) of the Limitation Act, it has been laid down by the legislature that any claim by the way of a set off or a counter claim shall be treated as a separate suit.

Section 4 state that where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court re-opens. A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours, it remains closed on that day.

Section 3 of the Limitation Act is applicable to the period prescribed by any local law or special law. Limitation act is a procedural law, so it is applicable to both.

If any debt is barred by time, that means it is barred by law. It cannot be claimed by the way of instituion of suit. Time barred debt does not mean that the debt does not exist.

Only disabilities covered by s. 6 are minority, lunacy and idiocy of the person entitled to sue or file an application for execution. The insolvency of the parties does not attract section 6 of the Limitation Act.

Under the Transfer of Property Act, attached to the earth means-(a) rooted in the earth, as in the case of trees and shrubs;(b) imbedded in the earth, as in the case of walls or buildings; or(c) attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached;

Under section 18 explanation (b) of the Limitation act, it has been provided that acknowledgement made by a person other than a person under liability is good if the person making is an agent of the person under liability. 

Article 123 of the limitation act provides that an Ex parte decree can be set aside within 30 days from the date of the decree or where the summons or notice was not duly served when the applicant had knowledge of the decree.

As per section 3 of the transfer of property act, instrument means non-testamentary instrument.

The words of section 19 state that where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made.

Transfer of property can be made orally or by registered instrument. A transfer of property may be made without writing in every case in which a writing is not expressly required by law. 

Section 35 of the Transfer of property act states that where a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it. 

Actionable claim means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the civil courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent. 

Where the proposal made is to be accepted by letters sent through post, the contract is completed, the moment the letter accepting the proposal is posted.

Section 52 of the transfer of property act uses "the property cannot be trasnferred or otherwise dealth with. At the same time, the transfer pendente lite is not void but is only subject to the outcome of the litigation. Thus, the transfer is voidable at the instance of the affected party". 

Section 16 (3) of the Indian Contract act states that where a person who is in a position to dominate the will of another, enters into a contract with him and the transaction appears on the face of it or on the evidence adduced to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. 

Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect unless it extends to the whole of the remaining interest of the transferor in the property. 

Partition is not a transfer of property. Partition is just the destribution of share of coparceners which is already vested in them.

As per section 52 of the Indian Contract act, where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order and where the orders is not expressly fixed by the contract, they shall be performed in that order which the nature of transaction requires. 

A revokes by telegram his proposal to B, before its acceptance by B, to sell his house at a certain price. The revocation is complete against A when the telegram is dispatched.

Section 19 of Indian Contract act states that when consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. 

Section 3 of the Hindu Succession act deals with definition clause. It provides that one person is deemed to be an agnate of another if they are related to each other wholly through males. 

The general rules of succession of a Hindu male dying intestate are contained in Section 8 of the Hindu Succession Act, 1956.

In an agreement, A sells to B his skin bleaching products business “Intimate Whitener” and the goodwill of the business with the condition that A will not carry on such similar business throughout India so long as B carries it on anywhere in India. The agreement records that this condition is reasonable and that no court will have jurisdiction to examine this condition. The agreement is void as it violating the article 301 of the Constitution. B cannot impose restriction on A to carry on business throught India. A specified area or time can be the criteria of restriction in restraint of trade.

Under section 19 of the Hindu succession act 1956, If two or more heirs succeed together to the property of an intestate, they shall take the property-(a) save as otherwise expressly provided in this Act, per capita and not per stripes; and(b) as tenants-in-common and not as joint tenants. 

Husband in Entry (a) of Section 15(1) of the Hindu Succession Act, 1956 includes husband of a subsisting marriage. A divorced husband does not have a status of husband after divorce.

The agent is bound to act with reasonable diligence and to use such skill as he possesses and to make compensation to his principal in respect of the direct consequences of his neglect, want of skill or misconduct, but not in respect of loss or damage which are indirectly or remotely caused by such neglect, want of skillor misconduct.

The domicile of a wife under the Indian Succession Act, 1925 is that of her husband. The wife's domicile no longer follows that of her husband if they are separated by the sentence of a competent Court.

An Indian Christian under the Indian Succession Act, 1925 means a native of India who is or in good faith claims to be of unmixed Asiatic descent and who professes any form of the Christian religion.

A vested interest is not defeated by the death of the transferee before he obtains possession. An intention that an interest shall not be vested is not to be inferred merely from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen the interest shall pass to another person.

Section 20 states a child who was in the womb at the time of death of an intestate and who is subsequently born alive has the same right to inherit to the intestate as if he or she had been born before the death of the intestate and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate. 

Section 41 of the Indian Succession Act, 1925 provides that the property of an intestate where he has left no lineal descendants can be distributed only after deducting the share of his widow.

Section 6(2) of the specific relief act provides that no suit under this section shall be brought after the expiry of six months from the date of dispossession.

X sells a property to Z with a condition V that he must live in it. The condition is void. Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void.

Privileged wills are made by those who are in active military service, which means that they are either working in an operational area in the forces or are just about to be posted to one. 

Section 16 clause b of the specific relief act states that specific performance cannot be enforced in favor of a person who has become incaapble of performing or violates any essential term of the contract or acts in fraud of the contract or wilfully acts at variance with.

Under Section 20 of the Indian Succession Act, 1925, no person shall by marriage acquire any interest in the property of the person whom he or she marries or become incapable of doing any act in respect of his or her own property which he or she could have done if unmarried.

The Apex Court held that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. 

All of the above are valid defences and can be claimed by the defendant in the suit of specific performance. 

Under section 4 of the specific relief act, it has been provided that specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law. 

The bailor is bound to disclose to the bailee faults in the goods bailed, of which the bailor is aware and which materially interfere with the use of them or expose the bailee to extraordinary risks; and if he does not make such disclosure, he is responsible for damage arising to the bailee directly from such faults.

Section 34 of the specific relief act states that any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character or right and the court may in its discretion make therein a declaration that he is so entitled.

Under section 14 of the specific relief act, it has provided the conditions when the specific performance of contract is not enforceable:
(a) when compensation in money is an adequate relief
(b) when a contract runs into such minute and complex details or is dependent on personal qualifications or volition of the defendant, or otherwise from its nature is such that a court cannot enforce specific performance of its material terms
(c) when a contract is in its nature determinable i.e. can be brought to an end under given conditions
(d) when a contract, the performance of which involves performance of continuous nature, which the court cannot supervise

This is a contingent contract according to section 32 of the Indian contract act. It states that contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened." If the event becomes impossible, such contracts become void. 

It has been provided that a suit for the recovery of immovable property can be filed within 12 years when the cause of action arises.

Section 13 of the specific relief act is applicable when the transfer of property has been made by the seller who has no title or has imperfect title.

It has been laid down by the legislature under section 27 of the specific relief act that any person interested in a contract may sue to have it rescinded and such rescission may be adjudged by the court where the contract is voidable or terminable by the plaintiff.

The object of the agreement is unlawful so where a businessman enters into an agreement with a Chartered Accountant to pay him fees and commission for the tax saved by so arranging the accounts as to conceal the true income of the business. Any dispute between the businessman and the Chartered Accountant on the fee and commission is to be settled by arbitration. The agreement is void.