THE CODE OF CIVIL PPROCEDURE -1908
Question -1: Explain and illustrate for the following terms :
(a) Cause of action (b) Legal representative (c) Mandatory injunction (d) Res-judicata (e) Attachment before judgment (f) Amendment of pleadings (g) Substituted service (h) inherent power of the court.
Ans: (a) Cause of action:
“Cause of action” means that the causes of arising situation from which the litigation comes. In order to acquire decree in suit, the plaintiff has to prove that every information is included here where the civil suit will be filed depends on the cause of action. Cause of action arises and also its time must be mentioned in the plant.
According to section 20 (c) of The Code of Civil procedure -1908 it has been said that the suit will be field where -“the cause of action, fully or partly arises”. In the case of AHMED VS Mirza mohammed Anowar baig (20,DLR) it is said that if any one does not mention the cause of action in the plaint. For the same cause of action, the suit will not be filed again. Generally the caption is not rectified.
(b) Legal representative:
According to section 2(11) of Code of Civil procedure -1908 it has been defined here that “Legal Representative means a person who in law represents the estate of a deceased person, and includes any person who intermeddled with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.”
In Order- 22, Rule-5 of Code of Civil procedure-1908 it has been stated that “Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the court.
(c) Mandatory injunction:
According to section 55 of The Specific Relief Act- 1877, it has been stated about the Mandatory injunction that-
“When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, may in its discretion grant an injunction to prevent the breach complained of and also to compel performance of the requisite acts”. It is the inherent power of the court to execute the mandatory injunction.
For the application of the rule of law, the learned court can execute not only the mandatory injunction on the disputed property, the court can also pass an order to destroy the building which is under construction or any other permanent construction. So, mandatory injunction is a judicial order of the court when a party is ordered to perform particular acts or to prevent the breach of obligation.
“Res-Judicata” means pre-trial decision. According to section-11 of The Code of Civil procedure- 1908, it has been stated that “No court shall try any suit or issue in which the matter directly and substantially in a former suit between the same parties or parties under whom they or any of them claim, litigating under the same title in a competent court to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court”.