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CMR VI MOOT COURT COMPETITION 2018

Team Code: 14

IN THE SUPREME COURT OF INDIA


CIVIL APPELLATE JURISDICTION

IN THE MATTER OF

S.L.P. CIVIL NO. ——— OF 2018

1] MRS. LISA KAMATH ….PETITIONER

Vs.
2] MR. RAJENDRA THOMAS ….RESPONDENT

SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE


CONSTITUTION OF INDIA

BEFORE THE HONOURABLE 3 JUDGES OF SUPREME COURT BENCH

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF


INDIA CHALLENGING THE FINAL JUDGEMENT AND ORDER DATED
13/12/2017 PASSED BY THE HON’BLE MAHANAGARA HIGH COURT.

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT


CMR VI MOOT COURT COMPETITION 2018

TABLE OF CONTENTS

SR NO. CONTENT PAGE


NO.
1. INDEX OF AUTHORITIES

2. STATEMENT OF JURISDICTION

3. STATEMENT OF FACTS

4. ISSUED RAISED

5. SUMMARY OF ARGUMENTS

6. ARGUMENTS IN ADVACE

7. PRAYER
CMR VI MOOT COURT COMPETITION 2018

INDEX OF AUTHORITIES

Books referred:-

1. Basu, Durga Das, Shorter Constitution Of India 396 (14th ed., 2012)
2. Aggrawal, J.P., Pleadings and Precedents in India (3rd ed., 2012)
3. Shukla, V.N. , Constitution of India – (12th Ed., 2014)
4. Jain, M.P., Indian Constitutional Law – (7th Ed. 2014)
5. Code of Civil Procedure, Mulla (4th edition) Lexis Nexisbutterworth’s publication
6. Code of Civil Procedure, Dr Avtar Singh Central Law Publication
7. Code of Civil Procedure, 1908 (2008 edition) Bare Act Current Publication.
8. Law of Limitation and Prescriptions. U.N.Mitras (10th edition)
9. Law of Evidence (4th edition) Sarkar O Ejaz, Ashoka Publication.

Cases Referred:

1. Pushpa Devi Bhagat V. Rajendra Singh AIR 2006 SC 3628


2. Bharat KarsondasThakkar V. M/s Kiran Construction co. and others 2008 AIR SCW
3192
3. MolliEswaraRao V. Kurcha Chandra Rao 2016(3) ALT 655
4. Daulat Ram &Ors. vs. Sodha&Ors. [(2005) 1 SCC 40]
5. Baldev Singh V. Manohar Singh (2006) 6 SCC 498 AIR 2006 SC 2832
6. Usha Devi V. Rijwan Ahmed & others (2008) 3 SCC 717 in para 13.
7. Mahinder Kumar Mehra V. Roop Rani Mehra&ors (civil appeal no. 19977 of 2017)
8. Kailash V. Namhku, 2005 4 SCC 480
9. Vidyabai& others V. Padmalatta& others (2009) 2 SCC 409
10. Mahmoodanothers V. Syed Anwar Mustafa & others, 2016 2 ALT 262
11. MalliEswaraRao V. KurchaChandravRao 2016 (3) ALT 655
12. Hanumant Singh Rawat V. M/s Rajputana Automobiles Ajmer (1993) 1 WLC 625
13. Peethani Surya Narayana V. RepakaVenkataRamana Kishore (2009) 11 SCC 308
14. Abdul Alim V. MohdSaeed AIR 1951 Punj 43
15. [BishunathTewari And Ors V. Mst. Mirchi] AIR 1955 Patna 66 and (2006) 7 SCC 416
16. Gurdit Singh V. Ramesh AIR 1981 Del. 217
17. SavitriDevendraDeshprabhu V. Sita Devi Deshprabhu

Lexicons:
CMR VI MOOT COURT COMPETITION 2018

1. Law dictionary Hindu Law House 2015 Bhange’s Publication 1st edition 1992 reprint
2015.
2. Garnor, Black’s Law Dictionary 9th edition Ed. Thomas and West U.S.A 1990

Legislation:

1. Civil Procedure Code 1908 with amendment 2002


2. Indian Evidence Act 1872
3. Advocates Act 1961
4. Constitution of India

Journals:

1. Maharashtra Law Journal (Mah.L.J)


2. Supreme Court Civil Report (SCCR)
3. All India Report (AIR)
4. Supreme All Report (Civil)
5. Indian Legal Report (ILR)

Legal Database:

1. Legalcrystal (www.legalcrystal.com)
2. SCC online (www.scconline.co.in)
3. Supreme Court of India (www.supremecourtofindia.nic.in)
CMR VI MOOT COURT COMPETITION 2018

STATEMENT OF JURISDICITION

The appellant have the honour to submit before the Hon’ble Supreme Court Of India the
memorandum for appellant in case of Mrs Lisa Kamat’s approach to Hon’ble Supreme Court
of India by filing an appeal of special leave petition under the article 136 of Constitution of
India which empowers that-

“1. Notwithstanding anything in this chapter, the Supreme Court may, in its
discretion, grant a special leave to appeal from any judgement, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal in the
territory of India.

2. Nothing in clause (1) shall apply to any judgement, determination, sentence or


order passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.”
CMR VI MOOT COURT COMPETITION 2018

STATEMENT OF FACTS

1. A will was made on 7.11.2017 by Mr Birendra Thomas for the distribution of


property owned by him.
2. A consent decree was passed on 14.07.2011 in a partition suit between Mr Rajendra
Thomas and Mrs Lisa Kamat’s mother.
3. Mr Rajendra Thomas filed a suit against Mrs Lisa Kamat seeking a injunction
simplicitor against her. In this case Mrs Lisa Kamat gave a written statement.
4. The trial court granted interim injunction and same remained unchallenged.
5. Mrs Lisa Kamat’s financial position was weak and her advocated made it clear that
her position in the case was weak. She took a loan from her friend to pay her legal
debts and that friend also referred this case to another advocate who also a good
acquaintance.
6. After studying the case the new advocate pointed out a lot of things and advised Mrs
Lisa Kamat to file an application for amendment of the written statement given by
her. The trial court dismissed the application of the basis that the case failed the test of
due diligence.
7. Against the aforesaid judgement and order Mrs Lisa Kamat sought a writ petition
before the High court of Mahanagara under article 227.
8. The High court rejected the plea on the basis that a new legal opinion cannot be the
basis of an application for amendment of a written statement.

Against this Mrs Lisa Kamat has preferred a Special Leave petition under article 136 in
front of Supreme Court of India.
CMR VI MOOT COURT COMPETITION 2018

ISSUES RAISED

1. Whether a new legal opinion, in context of a plausibly demonstrable error on the law in
existing pleading, can be a factor while examining “due diligence” expected from a party
to legal proceedings under the proviso of Order VI Rule 17 of CPC 1908?

2. Whether the proviso to order VI rule 17 of the CPC 1908 applies to an amendment,
concerning fraud on the court, under the second part of rule 17 which is mandatory and
enjoys the court that “all such amendments shall be made as may be necessary for the
purpose of determining the real question in the controversy between the parties”?

3. Whether a party has a right under section 44 of IEA 1872 to show the court that a prior
consent decree is vitiated by fraud; and whether such right is saved by section 4(1) of the
CPC 1908-so that the proviso to order VI rule 17 of CPC would not come in the way of
an amendment that seeks to expose fraud by exercising such right?
CMR VI MOOT COURT COMPETITION 2018

SUMMARY OF ARGUEMNTS

1. Whether a new legal opinion, in context of a plausibly demonstrable error on the


law in existing pleading, can be a factor while examining “due diligence” expected
from a party to legal proceedings under the proviso of Order VI Rule 17 of CPC
1908?
The new legal opinion in context of plausibly demonstrable error on law cannot be a
factor while examining the due diligence. This is because the prior advocate would have
framed the pleading on the basis of the facts provided by the client and it cannot be said
that there was any error on the part of advocate. And if a new legal opinion is taken as a
factor for examining the due diligence then every person who loses the suit will refer to a
new advocate and again file a suit for the same which will increase burden on judiciary.
The new legal opinion can be a factor only if there is any lack of law which has not been
referred by previous advocate.
2. Whether the proviso to order VI rule 17 of the CPC 1908 applies to an amendment,
concerning fraud on the court, under the second part of rule 17 which is mandatory
and enjoys the court that “all such amendments shall be made as may be necessary
for the purpose of determining the real question in the controversy between the
parties”?
The proviso to order VI rule 17 of CPC 1908 applies to an amendment as in para 6 of
moot preposition states that “during Mr Rajendra Thomas cross examination in suit.”
Therefore it shows that the trial has already has commenced and proviso or order VI rule
17 clearly states that no application for amendment shall be allowed after the trial has
commenced. Again amendment application could not be having been allowed as
petitioner had altered the nature of suit.
3. Whether a party has a right under section 44 of IEA 1872 to show the court that a
prior consent decree is vitiated by fraud; and whether such right is saved by section
4(1) of the CPC 1908-so that the proviso to order VI rule 17 of CPC would not come
in the way of an amendment that seeks to expose fraud by exercising such right?
As per section 44 of IEA it provides relevancy of facts and it cannot be read to mean that
it confers any right on the party to plead fraud. Respondent therefore submits that petition
be dismissed as the prior consent decree is not vitiated by fraud. If the section 44 does
not apply then there is no question as to applicability of section 4(1) of CPC.
CMR VI MOOT COURT COMPETITION 2018

ARGUEMNTS ADVANCED

Issue no 1.

Whether a new legal opinion, in the context of a plausibly demonstrable error on the
law in existing pleadings, can be a factor while examining “due diligence” expected
from a party to legal proceedings under the proviso to Order VI Rule 17 of the CPC
1908?

1.1 Whether the consent decree in partition suit dated 14/7/2011 was obtained by
fraudulently or by intention to deceive.
The respondent humbly submits that according to section 11 of CPC the rule of res
judicata applies over here. Section 11 states that-
“no court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and subsequently in issue in a former suit
between the same parties under whom they or any of them claim, litigating under the
same title, in a court competent to try such subsequent suit or the suit in which the issue
has been subsequently raised, and has been and finally decided by such court.”

In this case the consent decree was not obtained by fraud as it was a partition suit
between the respondent and petitioner’s mother. Even if the mother was not aware about
the will the consent decree was passed by the court after considering the facts presented
by both the parties. The consent decree passed remained unchallenged till date. Even
after the petitioners mother came to know about the will she did not file a suit against the
consent decree which indicates that she had waived off her right on the property. More
over the will wasn’t registered and legally executed so the question arises whether the
will was legal and binding on both the parties and whether the petitioner had the right to
claim a right on the property without obtaining it through a legal process. The
petitioner’s mother never opposed for the property during her lifetime, then does the
petitioner has the right to claim a title over the same?
In the case of Pushpa Devi Bhagat V. Rajendra Singh1it was stated that
“by virtue of the provisions in section 96(3), order 23, rule 3 and a provision inserted
since 1 Feb 1977, an appeal is not maintainable against a consent decree. The party has
1
SavitriDevendraDeshprabhu V. Sita Devi Deshprabhu
CMR VI MOOT COURT COMPETITION 2018

to approach the court which passed the consent decree and prove before it that there was
no compromise.”

1.2 Whether new legal opinion can be considered for amendment of written statement?
Proviso to Order VI rule 17 states that
“no application for amendment shall be allowed after the trial has commenced, unless
the court comes to the conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of trial.”
In present case the previous advocate cannot be blamed for the error made by the client
as the client is held responsible for whatever pleading is done in the court. The client has
to ensure that the pleading has covered all the facts and all the issues. And if a new legal
opinion is considered as a base for amendment of written statement then every person
will sought a new legal opinion after losing the case and again file a suit and the burden
of increased litigations would come on judiciary and the main issues that need to be
considered might not get enough time or may be so prolonged that justice when needed
won’t be delivered. Even there might be a possibility that few advocates would come
together and one would purposely not put up few points so that the client would refer to
another advocate and the other advocate who knows about this case might also take
advantage and deceive the client.
In Bharat KarsondasThakkar V. M/s Kiran Construction co. and others 2it was held
that
“ the amendment is not permissible if it changes the nature of suit”
In the present case a new legal opinion cannot be accepted because it is changing the
nature of the suit as the main suit was for seeking an injunction against the petitioner.

1.3 Due diligence under order VI rule 17 satisfied or not.


Due diligence simply means reasonable steps taken by a person to avoid committing a
tort or offence. In the present case the respondent contends that the test of due diligence
is not satisfied. This is contended because of two main reasons.
1. The consent decree was obtained through a legal process and should not be questioned.
The petitioner and her mother got to know about the will after the consent decree was
passed in 2012. Even after they got to know about the will the petitioner and her mother

2
2008 AIR SCW 3192
CMR VI MOOT COURT COMPETITION 2018

did not oppose the consent decree in any of the courts nor filed any suit against the same
decree. Petitioner’s mother passed away in 2013. Hence this shows that she had accepted
the consent decree and had waived off her right over the property. Even after the passing
away of petitioner’s mother, the petitioner also never filed any case against the
respondent. This shows that they were negligent and were not diligent.
2. The petitioner was not diligent in providing all the information to prior advocate and was
even negligent in ensuring that the advocate has covered all the points in the pleading.
Hence an advocate cannot be questioned because after all he will frame the arguments
according to the information provided to him by the client. More over the will was not
registered. Even if the will wasn’t registered it has an existence. Butfor that it has to be
proved to the court that the will was made by complying to the provisions under the
Hindu succession act.
In the case of MolliEswaraRao V. Kurcha Chandra Rao3it was held that
“the person filed a application for amendment of written statement subject to proviso of
order VI rule 17 which states that It is obligatory on the part of person applying to show
that despite application could not be filed before commencement of trial, the exercising
of due diligence is necessary”

In the case Daulat Ram &Ors.vs. Sodha&Ors.4, stated the law thus:

"Will being a document has to be proved by primary evidence except where the court
permits a document to be proved by leading secondary evidence. Since it is required to
be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used
as evidence until one of the attesting witnesses at least has been called for the purpose
of proving its execution, if there be an attesting witness alive, and subject to the process
of the court and capable of giving evidence.In addition, it has to satisfy the requirements
of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the
Will has been validly executed and is a genuine document, the propounder has to show
that the Will was signed by the testator and that he had put his signatures to the
testament of his own free will; that he was at the relevant time in a sound disposing state
of mind and understood the nature and effect of the dispositions and that the testator had
signed it in the presence of two witnesses who attested it in his presence and in the

3
2016(3) ALT 655
4
[(2005) 1 SCC 40]
CMR VI MOOT COURT COMPETITION 2018

presence of each other. Once these elements are established, the onus which rests on the
propounder is discharged. But where there are suspicious circumstances, the onus is on
the propounder to remove the suspicion by leading appropriate evidence. The burden to
prove that the Will was forged or that it was obtained under undue influence or coercion
or by playing a fraud is on the person who alleges it to be so.”

Hence it shows that the petitioner was not diligent on her part as she did not file any suit
against the consent decree and she tried to avoid the legal process and is trying to
alienate and deal with the property without having the title and possession of the
property.

Therefore from above discussion we can conclude that mere new legal opinion cannot be
the basis of factor of satisfying the test of due diligence.

Issue no 2
CMR VI MOOT COURT COMPETITION 2018

Whether the proviso to order VI rule 17 of the CPC 1908 applies to an amendment,
concerning fraud on the court, under the second part of rule 17 which is mandatory and
enjoys the court that “all such amendments shall be made as may be necessary for the
purpose of determining the real question in the controversy between the parties”?

2.1 Whether the proviso to order VI rule 17 of CPC 1908 applies to an amendment
concerning fraud on court.
The counsel for respondent humbly submits that the proviso to order VI rule 17 of CPC
1908 applies to an amendment because the plain bare reading of proviso of order VI rule
17 makes it clear that no application for amendment shall be allowed after the trial has
commenced unless the court comes to the conclusion that in spite of due diligence, the
party could not have raised the matter before the commencement of trial.
In support of the above sub issue the counsel has referred to the leading cases mentioned
below:
In the case of Baldev Singh V. Manohar Singh5in para 17 it was held and observed as
follows-
“before we part with this order i.e. order VI rule 17, we may also notice that the proviso
to order VI rule 17 provides that amendment of pleadings shall not be allowed when the
trial of the suit has already commenced.”

The same has been observed by Hon’ble Supreme Court in another decision of Usha
Devi V. Rijwan Ahmed & others6.

Again in the case of Mahinder Kumar Mehra V. Roop Rani Mehra&ors 7Supreme
Court held that the
“proviso to order VI rule 17 prohibits the entertainment of an amendment
application after the commencement of the trial with the sole object that once the parties
proceed with the leading of evidence then ordinarily no new pleading should be
permitted to be introduced”.

5
(2006) 6 SCC 498 AIR 2006 SC 2832
6
(2008) 3 SCC 717 in para 13
7
(civil appeal no. 19977 of 2017)
CMR VI MOOT COURT COMPETITION 2018

So from the above it is clear that proviso to order VI rule 17 applies to an amendment; as
in para VI of the moot preposition it is clearly given that “during Mr Rajendra Thomas’s
cross examination in the suit”. This states that the trail has commenced.

And as per the IEA sec 135 cross examination is the 3rd stage of examination of parties to
a suit.
Therefore it shows that the trial has already commenced and hence amendment cannot be
made.
To support the above contention the counsel refers to the leading cases related to
commencement of trial which are mentioned below.

In Kailash V. Namhku8, the Supreme court has held that


“in civil suit, the trial begins when issues are framed and the case is set down for
recording of evidence.”

Again in the case of Vidyabai& others V. Padmalatta& others9, the Supreme Court
held that
“the date on which the issues are framed is the date of first hearing. Examination
in chief of the witness would amount to commencement of proceedings.”

Amendment before commencement of trail:-


Application for amendment of plaint is allowed before the commencement of trial but in
present case as stated above trail has already commenced.

In case of Mahmoodanothers V. Syed Anwar Mustafa & others10, it was held that
“amendment of plaint i.e. written statement shall not be allowed once trial of
case has commenced.”
Again in the case of Vidyabai& others V. Padmalatta& others11, the Supreme Court
considered that
“provision of order VI rule 17 and held that the court may not allow the application for
amendment after the commencement of trial”

8
2005 4 SCC 480
9
(2009) 2 SCC 409
10
2016 2 ALT 262
11
(2009) 2 SCC 409
CMR VI MOOT COURT COMPETITION 2018

Hence the said application inter alia is hit by the proviso of order VI rule 17 of CPC.

Due diligence
As it is been clear from above argument that the trail has commenced. Order VI rule 17
was not satisfied by the petitioner because both the written statements are different in the
nature. One states that the consent decree is contrary to will and in other it is stated that
consent decree is a nullity as it was obtained by fraud.
Again the mother of petitioner got to know about the existence of will in November 2012
and in spite of coming to know about the will the petitioner’s mother does not approach
the court to challenge the consent decree and as from the facts given it is clear that the
petitioner’s mother has given a consent related to the property. A copy of will was also
given to the petitioner’s mother. And in spite she came to know about the will she did not
challenge the consent decree in the court nor did she file any suit against the respondent.
This shows that she has waived off her right. And hence the test of due diligence is not
satisfied.
In the case of MalliEswaraRao V. KurchaChandravRao12it was held that
“the person filed the application for amendment of written statement subject to proviso
to order VI rule 17 of CPC it is obligatory on the part of the person applying to show
that despite application could not be filed before commencement of trail and the
exercising of due diligence is not satisfied.”

2.2 Whether the 2nd part of rule 17 which is mandatory and enjoys the court that “all
such amendments shall be made as may be necessary for the purpose of
determining the real question in the controversy between the parties”?
Respondent humbly submits that as per 2nd part of rule 17 which is mandatory and
enjoins the court that “all such amendments shall be made as may be necessary for the
purpose of determining the real question in the controversy between the parties. But 2 nd
part of rule 17 is also not absolute. It is subject to conditions and proviso-
The condition is that the amendment should not change the basic character of the suit. So
coming in our case as in 1st written statement dated 6/03/2011 the petitioner states that
“the said consent decree is contrary to law in view of will dated 01/11/2007”
and in other written statement dated 06/03/2014 petitioner states that

12
2016 (3) ALT 655
CMR VI MOOT COURT COMPETITION 2018

“the consent decree dated 14/07/2011 is nullity as it was obtained through fraud”
So in one statement petitioner states that the consent decree is contrary to law and in
second statement petitioner states that the consent decree is nullity as it was obtained
through fraud. And if as per second written statement if the consent decree is obtained
through fraud then as per section 4(1) of CPC 1908 nothing should apply by the CPC.

To support this contention respondent submits some case laws as follows

In Hanumant Singh Rawat V. M/s Rajputana Automobiles Ajmer13the Rajasthan


High court settled the principle for amendment of pleading and summarised the legal
position as under-
“amendment of pleading cannot be allowed so as to alter the nature of suit.”

Similarly in the case of Peethani Surya Narayana V. RepakaVenkataRamana


Kishore14it was held that
”the court hold the power to allow such amendment but provided that it does
not affect the right already accrued to the other side”
In the present case as the trial court and High court has already accrued the right related
to property in favour of respondent after consideration of all the parties.

Thus the amendment application under order VI rule 17 of CPC could not have been
allowed as it is clear that the petitioner has set up an entirely new nature of plaint case.
The reposdent submits that trial court has rightly dismissed the application on the ground
that the trial had commenced and that the petitioner have not shown due diligence.

13
(1993) 1 WLC 625
14
(2009) 11 SCC 308
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Issue no.3
Whether a party has a right under section 44 of the Indian Evidence Act 1872 to show
to the court that a prior consent decree is vitiated by fraud; and whether such right is
saved by section 4(1) of the CPC 1908- so that the proviso to order VI ruler 17 of CPC
would not come in the way of an amendment that seeks to expose fraud by exercising
such right?

Respondent humbly submits that Petitioner was not entitle to amend his written statement
without proving the proviso of due diligence under Order 6 Rule 17 of CPC 1908. Petitioner
was not taking plea of Section 44 of Indian Evidence Act 1872 because the judgement given
by the trial court was appropriate and not necessary to set aside. When petitioner was enjoy
his right under section 44 of Indian Evidence Act 1872 than he was not protect his right under
the saving clause of Section 4 (1) of the CPC 1908 Hence petitioner was not taking plea of
Order VI Rule 17 of CPC for amendment of his original Written Statement.

3.1 Whether Section 44 of Indian Evidence Act is a special law and it is provided the
special right to the petitioner.
Petitioner taking plea under section 44 of Indian Evidence Act regarding to the fraudulent
consent decree is nullity and it is relevant evidence in front of court. But it is a special
right given to the petitioner therefore the CPC was applied limited. Hence Petitioner was
not entitled to amend his written statement under the proviso of Order VI Rule 17 of
CPC.
Petitioner submitted the two citation [BishunathTewariAndOrs V. Mst. Mirchi]15and
submit that section 44 of the IEA 1872 itself vests jurisdiction and authority in a court to
consider such case of fraud. Than petitioner was give plea under section 44 of IEA but it
was jurisdictionally bar and it was not allowed to amend his written statement as well as
his right was not save under section 4 of the CPC 1908.
As per the Section 4 In the absence of any specific provision to the contrary, nothing in
this code shall be deemed to limit or otherwise affect any special or local law now in
force or any special form of procedure prescribed by or under any other law for the time
being in force.

15
AIR 1955 Patna 66 and (2006) 7 SCC 416
CMR VI MOOT COURT COMPETITION 2018

Validity of Consent Decree

In the Trial Court the consent decree was passed on dated 17/07/2011 in a partition suit filed
by the Respondent against his sister and as per the consent decree the respondent purported
title and de jure possession over the suit property. The granting injuncation application by the
Trial Court in suit of 197/2014 is appropriate and rejeaction of writ petition is also valid order
passed by the High Court. Petitioner mother was agree for the consent decree therefore he
was waive his right voluntarily.

Lehman & Phelps 2005 says that , “ A consent decree is an agreement or settlement that
resolve a dispute between two parties without admission of guilt ( in a Criminal case) or
liability (in a civil case) and most often refers to such type of settlement in the united states”.

The consent decree means the plaintiff and defendant ask the court to enter into their
agreement and the court maintains supervision over the implementation of the decree in
monetary exchanges or restructured interactions between parties.

As per the order 23 Rule 3A of CPC define that “ No suit shall lie to set aside a decree on the
ground that the compromise on which the decree is based was not lawfull”.

So, Respondent humbly submits that in the Partition Suit the consent decree was come into
exist between the Respondent and Petitioner mother by the mutual consent or Mutual
understanding. Than petitioner was not taking plea that the decree passed by lower court is
set aside unless it is injustice towards decree holder. Respondent here humbly submits that
the principle of Res Judicata must be applied and not passed such order which was contrary
to the consent decree.

Special Provision Provided under Section 44 of Indian Evidence Act 1872

Then Section 44 under the IEA it is the special provision and petitioner was taking plea under
this section and prays for the amendmentof his written statement. Then they are not entitled.

The learned counsel in the case SavitriDevendraDeshprabhu V. Sita Devi Deshprabhuit


was submitted that sec 44 of the IEA provides for relevancy of facts and it cannot be read to
mean that it confers any statutory right on a party to plead fraud. He therefore submits that
the petition be dismissed.
CMR VI MOOT COURT COMPETITION 2018

In present case petitioner case was taking plea under sec 44 of IEA and was enjoying such
right of sec 44 of IEA. Section 44 provides for relevancy of facts as per section 5 to 55 of
IEA. Hence it cannot confer any such right to the petitioner. Therefore she cannot amend her
written statement for taking defence that the consent decree is obtained by fraud.

In another case Mr sunita Devendra V. In that case court observed that sec 44 of Evidence
Act is a piece of substantive law providing for relevancy of facts while Order VI Rule 17 of
the CPC is a part of procedural law governing the grant of amendment of the pleading. Thus
the contention based on sec 44 of Evidence Act Writ Petition has to be refuted. The
contention that the provision to Order VI Rule 17 of CPC is not preceded by a non obstante
clause and therefore would not restrict the operation of section 44 of the Evidence Act to my
mind is misplaced because Order VI Rule 17 of CPC and section 44 of the Evidence Act in
two different spheres Even otherwise as seen earlier section 44 of Evidence Act cannot be
called into aid this case.

Therefore as per that observation the petitioner was not entitle to amend his original written
statement because the section 44 and order VI Rule 17 are different parts and they are
different spheres hence the petitioner was taking his right under section 44 of IEA than he
was not liable to amend his written statement.

3.2 Whether petitioner was entitled to save his right under Section 4(1) of CPC 1908.
Respondent her humbly submits that when special provision was applied for a particular
act than the Civil Procedure Code was limit and party was not entitled to take plea under
the CPC. Petitioner prayer that, “the consent decree is nullity as it was obtained by fraud”
as per section 44 of Indian Evidence Act 1872 than Act was provide the special provision
to the party under section 44 was provide the special right to the petitioner than he was
not entitled to amend his written statement under Order 6 rule 17 of the CPC 1908
because there was inconsistence between the two provision i.e. Section 44 of the act and
Section 4(1) of CPC.
In the case of Gurdit Singh V. Ramesh16it was stated that
“Section 4 comes into operation when the special or local law stands in conflict
with any provision of this code when the special or local law is silent the provision of this
code prevail.

16
AIR 1981 Del. 217
CMR VI MOOT COURT COMPETITION 2018

Petitioner has applied for taking plea under special law of Evidence then the CPC was
limited because of saving clause under CPC. In present case High Court pointed out that,
“the section 44 of the IEA 1872 does not give any such right to a party and that, in any
case any such purported right had to be exercised in accordance with the procedure and
requirement of proviso to Order VI Rule 17 of the CPC 1908” is appropriate and
therefore it was not allowed to set aside such judgement and order.

In the another Case Abdul Alim V. MohdSaeed17The Section 4 given validity to local
Act and the special procedure therein prescribed validity within its own sphere. The
section 4 gives validity to local Act and the special procedures therein prescribe validity
within its own sphere. The section does not mean that the code does not apply to
proceeding under special or local laws but only enacts that where there is an
inconsistency the rules of the code do not prevail.

In Case All W.R. (H.C) 157 the meaning of the saving clause in Section 4 is that if
anything in the code is in conflict in the code is in conflict with the special or local law,
the court shall not refuse to override the inconsistent provision.
Petitioner was seeking that the consent decree dated was passed fraudulently and it was
not relevant as per the section 44 of Indian Evidence Act 1872 and want to take a defence
of fraudulent consent decree is nullity by amendment application under Order VI Rule
17. But he was not entitled as per section 4 (1) of the CPC because Petitioner was taking
plea under special law i.e. Indian Evidence Act therefore when special law is dealing
with particular matter the code was not applicable or limit it.

Burden of Proof Lies on Petitioner- The burden of proof was lies on petitioner that the
test of due diligence under order VI Rule 17 of CPC the petitioner was already false to
prove that the due diligence under Order VI Rule 17 than the amendment application was
liable to be rejected. The judgement passed by the lower court is appropriate and
respondent here requested that the give the reference of trial court judgement and
dismissed the Live petition.

17
AIR 1951 Punj 43
CMR VI MOOT COURT COMPETITION 2018

PRAYER

In the light of the questions and issued raised, arguments advanced and authorities cited the
counsel for respondent most humbly and respectfully prays before the hon’ble court, that it
may please to hold, adjudge and declare that –

1. The present special leave petition to be dismissed.


2. Test of due diligence under order VI rule 17 is not satisfied.
3. Application for amendment is not allowed as it is hit by proviso to order VI rule 17 of
CPC 1908.
4. Amendment in written statement is not mandatory and necessary to define the real
question of controversy between the parties as it had set up an entirely new nature of
plaint case.
5. The prior consent decree is not obtained by fraud.
6. To withhold the order and judgment passed by the trial court.

All of which is respectfully prayed.

Counsel for Respondent.


Place: New Delhi.
Date: 06/10/2018