Section 12. Refund of balance deposit

12. Refund of balance deposit. —When the copy of the record, except as aforesaid, has been transmitted to[1] [the Supreme Court], the appellant may obtain a refund of the balance (if any) of the amount which he has deposited under rule 7. 12. Remarks on demeanour of witnesses.— The Court may record such remarks as it thinks material respecting the demeanour of any witness while under examination. 4 [ 313. Memorandum of evidence in unappealable cases.— In cases in which an appeal is not allowed, it shall not be necessary to take down or dictate or record the evidence of the witnesses at length; but the Judge, as the examination of each witness proceeds shall make in writing, or dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record.] 14. [ Judge unable to make such memorandum to record reasons of his inability ] omitted by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), s . 69 ( w.e.f. 1-2-1977).] 3 15. Power to deal with evidence taken before another Judge.— (1) Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it. 12. Rules .—The distribution of the provisions of the Code between the body of the Bill and the Rules is a matter on which opinions may well differ. The general principle on which we have proceeded has been to keep in the body of the Bill those provisions which appear to us to be fundamental and those provisions which confer powers operating outside the Province in which the Court is situated. In some case we have adopted the plan of inserting leading provisions in the bill, stating in general terms the powers of the Court, and of leaving the details to Rules; The result this rearrangement is to reduce the Act, as distinct from Schedules, to 155 clauses. The existing order of sequence has, speaking generally, been maintained but the reduced bulk of the bill has rendered it no longer necessary to reproduce the division into Chapters. (2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to evidence taken in a suit transferred under section 24. 3 16. Power to examine witness immediately.— (1) Where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner hereinbefore provided. (2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties. (3) The evidence so taken shall be read over to the witness, and, if he admits it to be correct, shall be signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may then be read at any hearing of the suit. 12. Appearance of one of several plaintiffs or defendants for others. —(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding; and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding. (2) The authority shall be in writing signed by the party giving it and shall be filed in Court. It is Proposed to vest the Power of making Rules in High courts, subject to the control of Local Governments (or in the case of the Calcutta High Court of the Government of India), but we think it most desirable that in exercising this power the Courts should have the advice of representatives of the various branches of the legal profession, and we have accordingly provided that in the case of chartered High Courts and of Chief Courts, Rules shall only be made after those Courts have taken the opinion of the Rule Committee on which there will be representatives of the Bar, of Vakeels or Pleaders and in Presidency Towns of Attornies. In the case of other High Courts power has been given to establish such Rule Committees as the Governor-General in Council may determine. It is believed that Standing Committees of this kind will be of great value. We have thought it better to require the same sanction as is required by the Indian High Courts Act of 1861, in order that the rule making power should correspond with the power conferred under that Act; but we are of opinion that in the interest of uniformity, it is expedient that all amendments of Rules should be communicated to the Government of India and to other High Courts before sanction is given to them. This, we understand, can be effected by executive order. If our proposal is adopted it will probably be useful to publish annually in every Province some manual corresponding to the English "Annual Practice" containing:- - (1) the Act; - (2) all rules of procedure made under it or under other Acts in the Province; - (3) notes of decisions on the Act and Rules. 12. Service to be on defendant in person when practicable, or on his agent. —Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. 12. Implied contract, or relation.— Whenever any contract or any relation between any persons is to be implied from a series of letters or conversations or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative. 1. Subs. by Act 104 of 1976, s. 56, for rule 2 (w.e.f. 1-2-1977). * Ins. by Act 4 of 2016, s. 16 and Sch., Shall be applicable to commercial disputes of a specified value (w.e.f. 23-10-2015). 12. Procedure on rejecting plaint.— Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order. 12. Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person.— Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the court for failing so to appear, he shall be subject to all provisions of the foregoing rules applicable to plaintiffs and defendants, respectively who do not appear. 1. Subs. by Act 104 of 1976, s. 59, for cl. (a) (w.e.f. 1-2-1977). Setting aside Decrees ex parte 12. Application for discovery of documents.— Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oaths of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit: Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. 13 . Affidavit of documents.— The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in Form No. 5 in Appendix C, with such variations as circumstances may require. 12. Procedure if witness fails to appear.—[2] [(1)] The Court may, where such person does not appear, or appears but fails so to satisfy the Court, impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part thereof, to be attached and sold or, if already attached under rule 10, to be sold for the purpose of satisfying all costs of such attachment, together with the amount of the said fine, if any: Provided that, if the person whose attendance is required pays into Court the costs and fine aforesaid, the Court shall order the property to be released from attachment. 3[(2) Notwithstanding that the Court has not issued a proclamation under sub-rule (2) of rule 10, nor issued a warrant nor ordered attachment under sub-rule (3) of that rule, the Court may impose fine under sub-rule (1) of this rule after giving notice to such person to show cause why the fine should not be imposed.] 1. Subs. by Act 104 of 1976, s. 66 for sub-rule (1) (w.e.f. 1-2-1977). 12. Decree for possession and mesne profits.— (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree— (a) for the possession of the property; 1[(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent. (ba) for the mesne profits or directing an inquiry as to such mesne profits;] (c) directing an inquiry as to rent or mesne profits from the institution of the suit until— (i) the delivery of possession to the decree-holder, (ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or (iii) the expiration of three years from the date of the decree, whichever, event first occurs. (2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry. 2 [ 12A. Decree for specific performance of contract for the sale or lease of immovable property.— Where a decree for the specific performance of a contract for the sale or lease of immovable property orders that the purchase-money or other sum be paid by the purchaser or lessee, it shall specify the period within which the payment shall be made.] 12. Application for attachment of movable property not in judgment-debtor's possession. —Where an application is made for the attachment of any movable property belonging to a judgment-debtor but not in his possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same. 13. Application for attachment of immovable property to contain certain particulars. —Where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot— (a) a description of such property sufficient to identify the same and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, a specification of such boundaries or numbers; and (b) a specification of the judgment-debtor's share or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same. 12. Application of Order to proceedings.— Nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. ORDER XXIII Withdrawal and Adjustment of Suits 3 [1 . Withdrawal of suit or abandonment of part of claim .—(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of 12. Court to give Commissioner necessary instructions .—(1) The Court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination. (2) Proceedings and report to be evidence. Court may direct further inquiry.— The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit. 1. Ins. by Act 104 of 1976, s. 75 (w.e.f. 1-2-1977). Commissions to make partitions 12. Course to be followed by minor plaintiff or applicant on attaining majority.— (1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application. (2) Where be elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name. (3) The title of the suit or application shall in such case be corrected so as to read henceforth thus: "A.B., late a minor by C.D., his next friend, but now having attained majority.". (4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend. (5) Any application under this rule may be made ex parte but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend. 12. State Government may apply for payment of court-fees.— The[1] [State Government] shall have the right at any time to apply to the Court to make an order for the payment of court-fees under rule 10, rule 11 or[2] [rule 11A]. 12. Sale of property subject to prior mortgage.— Where any property the sale of which is directed under this Order is subject to a prior mortgage, the Court may, with the consent of the prior mortgagee, direct that the property[-] be sold free from the same, giving to such prior mortgagee the same interest in the proceeds of the sale as he had in the property sold. 12. Agricultural produce not attachable before judgment.— Nothing in this Order shall be deemed to authorise the plaintiff to apply for the attachment of any agricultural produce in the possession of an agriculturist, or to empower the Court to order the attachment or production of such produce. 12. Day for hearing appeal.— (1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal. 6[(2) Such day shall be fixed with reference to the current business of the Court.] 13. [ Appellate Court to give notice to Court whose decree appealed from .] Omitted by Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), s. 31 ( w.e.f. 1-7-2002.) 12. The agreement was rescinded under Conditions of Sale, No. 11 (or by mutual agreement). (In cases where damages are claimed and the defendant disputes his liability to damages , he must deny the agreement Or the alleged breaches , or show whatever other ground of defence he intends to rely on , e.g. , the[1] Indian Limitation Act , accord and satisfaction , release , fraud , etc.) No. 14 DEFENCE IN ADMINISTRATION SUIT BY PECUNIARY LEGATEE 12. And it is ordered that G. H. shall have the conduct of the sale of the immovable property, and shall prepare the conditions and contracts of sale subject to the approval of the …………… * and that in case any doubt or difficulty shall arise the papers shall be submitted to the Judge to settle.