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Judgments of Supreme Court of India and High Courts

Nishant Basoya vs Registrar General, The High Court … on 1 October, 2019

$~24, 25, 29, 34, 35 and 41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10592/2019
NISHANT BASOYA ….. Petitioner
Through: Mr.Sagar S.Jaiswal with Mr.Nivesh
Sharma, Mr.Kirti Gupta and Ms.Ritu
Singh, Advocates.

versus

REGISTRAR GENERAL, THE HIGH COURT OF DELHI
….. Respondent
Through: Mr.Rajshekhar Rao with Mr.Ankit
Jain, Mr.Chaitanya Puri, Mr.Siddhant
Nath, Mr.Abhay Pratap Singh,
Mr.Areeb Y.Amanullah,
Mr.Siddharth Raval and Ms.Rajshree
Jaiswal, Advocates for Delhi High
Court.

+ W.P.(C) 10692/2019
ANU KUMARI AND ORS. ….. Petitioners
Through: Mr.Prashant Manchanda with
Mr.Mohit Saroha, Mr.Mohit Siwach
and Mr.Rakshit Pandey, Advocates
along with Petitioners in person .

versus

REGISTRAR GENERAL DELHI HIGH COURT …. Respondent
Through: Mr.Rajshekhar Rao with Mr. Ankit
Jain, Mr.Chaitanya Puri, Mr.Siddhant
Nath, Mr.Abhay Pratap Singh,
Mr.Areeb Y.Amanullah,
Mr.Siddharth Raval and Ms.Rajshree
Jaiswal, Advocates for Delhi High

W.P.(C) 10592/2019 and connected matters Page 1 of 30
Court.
Mrs.Avnish Ahlawat with
Ms.Laveena Arora, Advocates for
GNCTD.

+ W.P.(C) 10704/2019
SHREYA GUPTA ….. Petitioner
Through: Petitioner in person.

versus

THE REGISTRAR GENERAL, DELHI HIGH COURT
….. Respondent
Through: Mr.Rajshekhar Rao with Mr. Ankit
Jain, Mr.Chaitanya Puri, Mr.Siddhant
Nath, Mr.Abhay Pratap Singh,
Mr.Areeb Y.Amanullah,
Mr.Siddharth Raval and Ms.Rajshree
Jaiswal, Advocates for Delhi High
Court.

+ W.P.(C) 10706/2019
VASU DEV MONGA ….. Petitioner
Through: Petitioner in person.

versus

REGISTRAR GENERAL DELHI HIGH COURT ….. Respondent
Through: Mr.Rajshekhar Rao with Mr.Ankit
Jain, Mr.Chaitanya Puri, Mr.Siddhant
Nath, Mr.Abhay Pratap Singh,
Mr.Areeb Y.Amanullah,
Mr.Siddharth Raval and Ms.Rajshree
Jaiswal, Advocates for Delhi High
Court.

W.P.(C) 10592/2019 and connected matters Page 2 of 30
+ W.P.(C) 10727/2019
VIKAS SHARMA ORS ….. Petitioners
Through: Petitioners in person.

versus

REGISTRAR GENERAL, DELHI HIGH COURT ANR
….. Respondents
Through: Mr.Rajshekhar Rao with Mr.Ankit
Jain, Mr.Chaitanya Puri, Mr.Siddhant
Nath, Mr.Abhay Pratap Singh,
Mr.Areeb Y.Amanullah,
Mr.Siddharth Raval and Ms.Rajshree
Jaiswal, Advocates for Delhi High
Court.
Mrs.Avnish Ahlawat with
Ms.Laveena Arora, Advocates for
GNCTD.

+ W.P.(C) 10757/2019
OMESH ….. Petitioner
Through: Mr.Sachin Mittal with Mr.Gaurav
Tanwar, Ms.Shreya Jain and
Ms.Sonal Chauhan, Advocates.

versus

REGISTRAR GENERAL, DELHI HIGH COURT ANR
….. Respondents
Through: Mr.Rajshekhar Rao with Mr.Ankit
Jain, Mr.Chaitanya Puri, Mr.Siddhant
Nath, Mr.Abhay Pratap Singh,
Mr.Areeb Y.Amanullah,
Mr.Siddharth Raval and Ms.Rajshree
Jaiswal, Advocates for Delhi High
Court.

W.P.(C) 10592/2019 and connected matters Page 3 of 30
Mrs.Avnish Ahlawat with
Ms.Laveena Arora, Advocates for
GNCTD.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE TALWANT SINGH
ORDER

% 01.10.2019

CM APPL. 43807/2019 (exemption) in WP (C) 10592/2019
CM APPL. 44198/2019 (exemption) in WP (C) 10692/2019
CM APPL. 44251/2019 (exemption) in WP (C) 10706/2019
CM APPL. 44365/2019 (exemption) in WP (C) 10727/2019
CM APPL. 44440/2019 (exemption) in WP (C) 10757/2019

1. Allowed, subject to all just exceptions.

WP (C) 10592/2019 and CM APPL. 43806/2019 (stay)
WP (C) 10692/2019
WP (C) 10704/2019
WP (C) 10706/2019 and CM APPL. 44250/2019 (direction)
WP (C) 10727/2019 and CM APPL. 44368/2019 (stay)
WP (C) 10757/2019 and CM APPL. 44439/2019 (stay)

Dr. S. Muralidhar, J.:

1. These writ petitions by law graduates aspiring to be judicial officers,
question the correctness of the answer keys to some of the questions in the
Delhi Judicial Services (Preliminary) Examinations („DJS Preliminary
Exams‟) held on 22nd September 2019.

2. Notice. Notice is accepted by learned Standing Counsel for the
Respondent.

3. Given the urgency of the matter in light of the fact that the Delhi Judicial
Services (Mains) Exam is to be held on 12th and 13th October 2019, these

W.P.(C) 10592/2019 and connected matters Page 4 of 30
petitions have been heard finally today itself with the consent of the parties.

4. The Court straightway takes up for discussion the answer keys to 15
questions that have been challenged by these Petitioners. It must only be
noticed at this stage that in a departure from the practice adopted earlier
where before declaring the results of the DJS Preliminary Exams the answer
keys would be published on the website of the Delhi High Court and
objections invited, this time with a view to adhering to a deadline of
completing the entire examination and selection process before the end of
February 2020 as undertaken by the High Court before the Supreme Court
of India in proceedings arising in Civil Appeal No.1867 of 2006 (SectionMalik
Mazhar Sultan v. U.P. Public Services Commission) the High Court
dispensed with the publishing of the answer keys prior to the declaration of
the result.

5. As it turned out the answer keys were ultimately published on 26th
September 2019 and immediately upon noticing the answer keys to some of
the questions the present petitions have been filed.

6. It must also be noticed that there are different series of questions for e.g.
A, B, C and so on. Some questions are common to the different series. In
other words the question numbers of the same question would be different in
the different series.

7. For 13 of the 15 questions, the answer keys to which have been
challenged, the Court has had the benefit of a chart prepared by learned

W.P.(C) 10592/2019 and connected matters Page 5 of 30
counsel appearing for the High Court. The answer keys to the 2 further
questions have been challenged in WP (C) 10757 of 2019 (SectionUmesh v.
Registrar General and Anr.) which would be discussed sequentially.

Question I

8. Question No.171 in Series „C‟ and Question No.73 in Series „D‟ the
question reads as under:

“„A‟ filed a suit against three defendants. Defendant No.1
alleged that there was no cause of action against him under
Order VII Rule 11(d) CPC. The Plaint is to be:

(1) Rejected in whole

(2) Rejected in part if cause of action is not joint and several

(3) Proceed with against all the defendants

(4) None of the above.”

9. In terms of the answer key, the correct answer is (2) above whereas the
Petitioners insist that it is (3) above.

10. Learned counsel for the High Court, place reliance on the judgments in
SectionUnion of India v. S. K. Kapoor (2011) 4 SCC 589, SectionChurch of Christ
Charitable Trust and Educational Society v. Ponniamman Educational
Trust (2012) 8 SCC 706 and SectionZubair Ul Abidin v. Sameena Abidin (2014)
214 DLT 340.

11. Of the above, it is the decision in Church of Christ Charitable Trust
and Educational Society (supra) that is relevant to the issue at hand. There

W.P.(C) 10592/2019 and connected matters Page 6 of 30
were two Defendants i.e. the Appellant as Defendant No.1 and „S‟ as
Defendant No.2. The Appellant filed an application under Order VII Rule 11
CPC for rejection of the plaint filed by the Respondent/Plaintiff. The learned
Single Judge of the High Court on the Original Side rejected the plaint in so
far as the Appellant was concerned and directed that the suit would be
proceeded with against „S‟ only. However, the first Appellate Court allowed
the appeal against the rejection of the plaint. Aggrieved, the Appellant
approached the Supreme Court which reversed the Appellate Court and
restored the judgment of the learned Single Judge. It was held that under
Order VII Rule 11 CPC where the plaint fails to disclose cause of action vis-
a-vis the particular Defendant who objects, it can be rejected in so far as it
concerns that Defendant.

12. However learned counsel for the Petitioners rely on the decision of the
Supreme Court in SectionSejal Glass Limited v. Navilan Merchants Private
Limited (2018) 11 SCC 780 which discussed in particular Clause (d) of
Order VII Rule 11 and held as under:

“What is important to remember is that the provision refers to the
“plaint” which necessarily means the plaint as a whole. It is only
where the plaint as a whole does not disclose a cause of action that
Order VII Rule 11 springs into being and interdicts a suit from
proceeding.

6) It is settled law that the plaint as a whole alone can be rejected
under Order VII Rule 11. In Maqsud Ahmad vs. Mathra Datt Co.,
A.I. R. 1936 Lahore 1021 at 1022, the High Court held that a note
recorded by the trial Court did not amount to a rejection of the plaint
as a whole, as contemplated by the CPC, and, therefore, rejected a
revision petition in the following terms:

“There is no provision in the Civil Procedure Code for the

W.P.(C) 10592/2019 and connected matters Page 7 of 30
rejection of a plaint in part, and the note recorded by the trial
Court does not, therefore, amount to the rejection of the plaint as
contemplated in the Civil Procedure Code.”

13. The above decision of the Supreme Court has been followed in a recent
judgment dated 1st July, 2019 in SectionMadhav Prasad Aggarwal Anr. v. Axis
Bank Ltd. (2019) 7 SCC 158 where it was held as under:

“11. We do not deem it necessary to elaborate on all other
arguments as we are inclined to accept the objection of the appellant(s)
that the relief of rejection of plaint in exercise of powers under Order 7
Rule 11(d) of CPC cannot be pursued only in respect of one of the
defendant(s). In other words, the plaint has to be rejected as a whole or
not at all, in exercise of power Order 7 Rule 11 (d) of CPC. Indeed, the
learned Single Judge rejected this objection raised by the appellant(s)
by relying on the decision of the Division Bench of the same High
Court. However, we find that the decision of this Court in the case of
Sejal Glass Limited (supra) is directly on the point. In that case, an
application was filed by the defendant(s) under Order 7 Rule 11(d) of
CPC stating that the plaint disclosed no cause of action. The civil court
held that the plaint is to be bifurcated as it did not disclose any cause
of action against the director‟s defendant(s) 2 to 4 therein. On that
basis, the High Court had opined that the suit can continue
against defendant No.1- company alone. The question
considered by this Court was whether such a course is open to the
civil court in exercise of powers under Order 7 Rule 11(d) of CPC. The
Court answered the said question in the negative by adverting
to several decisions on the point which had consistently held that
the plaint can either be rejected as a whole or not at all. The Court held
that it is not permissible to reject plaint qua any particular portion of a
plaint including against some of the defendant(s) and continue the
same against the others. In no uncertain terms the Court has held that if
the plaint survives against certain defendant(s) and/or properties, Order
7 Rule 11(d) of CPC will have no application at all, and the suit as a
whole must then proceed to trial.”

…..

13. Indubitably, the plaint can and must be rejected in exercise of
powers under Order 7 Rule 11(d) of CPC on account of

W.P.(C) 10592/2019 and connected matters Page 8 of 30
noncompliance of mandatory requirements or being replete with any
institutional deficiency at the time of presentation of the plaint,
ascribable to clauses (a) to (f) of Rule 11 of Order 7 of CPC. In other
words, the plaint as presented must proceed as a whole or can be
rejected as a whole but not in part. In that sense, the relief claimed
by respondent No.1 in the notice of motion(s) which
commended to the High Court, is clearly a jurisdictional error. The fact
that one or some of the reliefs claimed against respondent No.1 in the
concerned suit is barred by Section 34 of 2002 Act or otherwise, such
objection can be raised by invoking other remedies including under
Order 6 Rule 16 of CPC at the appropriate stage. That can be
considered by the Court on its own merits and in accordance with law.
Although, the High Court has examined those matters in the impugned
judgment the same, in our opinion, should stand effaced and we order
accordingly.”

14. The latter judgments of the Supreme Court being specific to the issue
concerning Order VII Rule 11 (d) CPC and the question framed being
specific to that provision, the answer key is incorrect. The Petitioners are
right in their contention that the correct answer would be (3) above.

Question II (No.6 in Series C, 26 in Series A and 46 in Series D)

15. The Question reads as under:

“Contract for sale of a Maruti Ciaz Car:

1. Can be specifically enforced.

2. Cannot be specifically enforced.

3. Only damages can be claimed.

4. Both (2 and 3)”

16. According to the answer key provided by the High Court, the correct
answer is (2) above whereas according to Petitioners it is (1).

W.P.(C) 10592/2019 and connected matters Page 9 of 30

17. Learned counsel for the High Court place reliance on the decision in
SectionRajasthan Breweries Limited v. The Stroh Brewery Company, 2000 (55)
DRJ (DB) of this Court. This was a judgment delivered on 12th July, 2000
holding that contracts that were by their nature determinable were not
specifically enforceable under Section 14 (1) (c) of the SectionSpecific Relief Act
1963 (SR Act). At the relevant point in time i.e. in the year 2000, Section 10
of the SR Act read as under:

“10. Cases in which specific performance of contract enforceable-

Except as otherwise provided in this Chapter, the specific performance
of any contract may, in the discretion of the court, be enforced-

(a) when there exists no standard for ascertaining actual damage
caused by the non-performance of the act agreed to be done; or

(b) when the act agreed to be done is such that compensation in money
for its non-performance would not afford adequate relief.”

Explanation:….(not reproduced)”

18. Thus it is seen that the specific performance of a contract was a matter in
the discretion of the Court, subject to the conditions spelt out under the
above provision being fulfilled. However, by an amendment brought about
by Act No. 18 of 2018 Section 10 of the SR Act has been substituted as
under:

“10. Specific performance in respect of contracts- The specific performance
of a contract shall be enforced by the court subject to the provisions
contained in sub-section (2) of Sectionsection 11, Sectionsection 14 and Sectionsection 16.”

19. While it is not in dispute that Section 11 (2) or Section 16 is not

W.P.(C) 10592/2019 and connected matters Page 10 of 30
attracted, the question that arises is whether Section 14 (d) which states that
a contract which is in its nature determinable and therefore not specifically
enforceable is attracted in the facts as set out in the question.

20. The question is simply that there is contract for sale of a Maruti Ciaz
Car. There is nothing to indicate whether the contract is in its very nature
determinable. Only if that fact is clearly stated can the student be expected
to opt for answer (2). Otherwise given the wording of Section 10 of the SR
Act as amended in 2018 a contract is mandatorily enforceable whereas under
the unamended Section 10 it was a matter still in the discretion of the Court.
The question has not accounted for the amended Section 10 of the SR Act.
The Court is of the view, that the benefit must therefore be given to the
candidates like the Petitioners who may have proceeded on the basis that the
correct answer is (1) above.

21. Consequently, the Court holds that the answer key to this question is
incorrect and the contention of the Petitioner that the correct answer is (1)
above is upheld.

Question III Q.No.163 (in Series C) and Q.No.165 (in Series D).

22. The said question reads as under:

“A compromise decree

1. Operates as the res-judicata between the parties to the compromise

2. Does not operate as res-judicata

3. (1) or (2) depending on the circumstances of each case

4. (1) or (2) depending on the discretion of court”

W.P.(C) 10592/2019 and connected matters Page 11 of 30

23. The correct answer according to the answer key is (1) above, whereas
the Petitioners state that it is (2).

24. Learned counsel for the High Court rely on a decision of a 3 Judge
Bench of the Supreme Court in SectionShankar Sitaram Sonetakke v. Balkrishan
Sitaram Sonteakke AIR 1954 SC 352, and the subsequent decision of a
two-Judge Bench of the Supreme Court in Varun Pastangi Garuwala v
Union Bank of India (1992) 1 SCC 31 and of the Bombay High Court in
State of Goa v. Taxido Gawansa (2001) 4 Bom CR 95. It is contended that
the principle that has been laid down in the aforementioned judgments is
that a compromise decree closes once for all the disputes between the
parties; that they would be bound by the terms of the compromise and the
consent decree following upon it.

25. On the side of the Petitioners, however, reliance is placed on two other
decisions 3 Judge Benches of the Supreme Court in Sunderbhai Deshpande
v Devaji Deshpande AIR 1954 SC 82 and Pullawarthy Venkatarao v
Valluri Jagannath Rao AIR 1967 SC 591.

26. In Sunderbhai Deshpande (supra), which was again a judgment of three
Judges, it was held as under:

“12. The bar of ‘res judicata’ however, may not in terms be
applicable in the present case, as the decree passed in Suit No.
291 of 1937 was a decree in terms of the compromise. The
terms of section 11 of the Civil Procedure Code would not be
strictly applicable to the same but the underlying principle of
estoppel would still apply. Vide: the commentary of Sir
Dinshaw Mulla on section 11 of the Civil Procedure Code at
page 84 of the 11th Edition under the caption ‘Consent decree
and estoppel’:

W.P.(C) 10592/2019 and connected matters Page 12 of 30

“The present section does not apply in terms to consent decrees;
for it cannot be said in the cases of such decrees that the
matters in issue between the parties ‘have been heard finally
decided’ within the meaning of this section. A consent decree,
however, has to all intents and purposes the same effect as ‘res
judicata’ as a decree passed ‘in invitum’. It raises an estoppel
as much as a decree passed ‘in invitum.”

27. The decision in Sunderbhai Deshpande (supra) by a three Judge Bench
is dated 3rd October, 1952, whereas the decision in Shankar Sitaram
Sontake (supra) is by a Coordinate Bench of three Judges decided on 12 th
April, 1954, which makes no reference to the former judgment. In
Pullawarthy Venkatarao v Valluri Jagannath Rao (supra) another three
Judge Bench held that as a compromise decree is not a decision by the
Court, and merely signifies acceptance by the Court something to which
parties had agreed, it cannot be said to be a decision of the Court. It was held
that “Only a decision by the court could be res judicata, whether statutory
under Section 11 of the Code of Civil Procedure, or constructive as a matter
of public policy on which the entire doctrine rests.”

28. The Court notices that in Varun Pastangi Garuwala v Union Bank of
India (supra) a two Judge Bench while referring to the decision in Shankar
Sitaram Sontakke (supra) made no reference either to Sunderbhai
Deshpande (supra) or to Pullawarthy Venkatarao v Valluri Jagannath
Rao (supra), which were decisions of 3 Judge Benches.

29. The Court is, therefore, inclined to accept the plea of the Petitioners that
the settled legal position appears to be what is stated in the aforementioned
judgments in Sunderbhai Deshpande (supra) and Pullawarthy Venkatarao

W.P.(C) 10592/2019 and connected matters Page 13 of 30
v Valluri Jagannath Rao (supra), both of which are by three Judge Benches
of the Supreme Court and appear to hold the field.

30. The net result is that the Court holds the answer key to this question is
incorrect and upholds the contention of the Petitioners that it is the answer
(2) which is the correct answer.

Question IV [Q.No.96 (in Series A) and Q.No.165 (in Series D).

31. The said question reads as under:

„A‟, a resident of Delhi, files a suit at Delhi for infringement of
Trademark by „B‟, a resident of Mumbai, for using the Mark at
Mumbai.

1. The court at Delhi has jurisdiction

2. The court at Delhi has no jurisdiction because „B‟ is a
resident of Mumbai and cause of action has arisen in Mumbai

3. The court at Delhi has jurisdiction with leave of court

4. The court at Delhi has jurisdiction only if „A‟ does not have
an office in Mumbai”

32. The answer key gives (4) as the correct answer, whereas the contention
of the Petitioners is that the Court at Delhi has no jurisdiction because B is a
resident of Mumbai and the cause of action has arisen in Mumbai.

33. The Court finds that the issue is no longer res integra. In terms of the
decision of the Supreme Court in Indian Performing Rights Society
Limited v Sanjay Dalia (2015) 10 SCC 161 the Court at Delhi would have
jurisdiction only if the Plaintiff does not have an office in Mumbai. This is
based on the interpretation of Section 134 of the Trademark Act, 1999. The
Court accordingly holds that the answer key for this question is correct, and

W.P.(C) 10592/2019 and connected matters Page 14 of 30
rejects the contention of the Petitioners to the contrary.

Question V [Q.No.122 (in Series A) and Q.No.196 (in Series D)].

34. The said question reads as under:

„A‟ and „B‟ go into a shop. „B‟ says to the shopkeeper “Let „A‟
have the goods. I will see that you are paid.”

1. Guarantee

2. Bailment

3. Indemnity

4. Pledge

35. The answer key states that the correct answer is (3) whereas according to
the Petitioners, it is (1). Learned counsel for the Petitioners have placed
reliance on the decision in State Bank of India v Mool Sehkarai Sakkar
Karkhana (2006) 6 SCC 293 in support of their submissions.

36. To understand the rival contentions, it is necessary to set out both
Sections 124 and Section126 of the Indian Contract Act, 1872, which read as under:

124. “Contract of indemnity” defined
A contract by which one party promises to save the other from loss caused
to him by the contract of the promisor himself, or by the conduct of any
other person, is called a “contract of indemnity”.
Illustration
A contracts to indemnify B against the consequences of any proceedings
which C may take against B in respect of a certain sum of 200 rupees. This
is a contract of indemnity.

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126. “Contract of guarantee”, “surety”, “principal debtor” and
“creditor”

A “contract of guarantee” is a contract to perform the promise, or discharge
the liability, of a third person in case of his default. The person who gives
the guarantee is called the “surety”, the person in respect of whose default
the guarantee is given is called the “principal debtor”, and the person to
whom the guarantee is given is called the “creditor”. A guarantee may be
either oral or written.

37. It will straightway be seen that under Section 124 what is envisaged is a
promisor (which in this case would be „B‟), who has promised to save the
other (in this case the „shopkeeper‟) from loss caused to such „other‟ i.e. the
shopkeeper, by either the conduct of the promisor himself (B) or conduct of
any other person (in this case, it could be „A‟). In the present case, the
statement by B to the shopkeeper that “I will see that you are paid” is not
expressly made contingent upon the conduct of either B or the conduct of A.
It was argued by learned counsel for the High Court that B has undertaken to
pay A for the failure by the A to pay for the goods. However, that is not
stated in the question explicitly.

38. If now one turns to the definition of „guarantee‟ in Section 126 of the
Contract Act, it envisages a tripartite arrangement involving a promise to
discharge the liability of a third person in case of his default. In the present
case, there is a promise by B to the shopkeeper that he will ensure that the
shopkeeper is paid. While it could be argued that is a „guarantee‟, it is
certainly not an „indemnity‟.

39. The Court is of the view that the answer key that this is an indemnity is

W.P.(C) 10592/2019 and connected matters Page 16 of 30
not correct and therefore benefit should be given to the Petitioners who
contend that it is a guarantee. The Court therefore upholds the contention of
the Petitioners in this regard.

Question VI [Q.No.16 (in Series A)].

40. The said question reads as under:

Suit for arrears of maintenance can be filed within:

1. One year

2. Two years

3. Three years

4. None of these

41. The answer key gives the correct answer as (3), whereas according to the
Petitioners, it is (1).

42. The question is clear that what has been filed is a „suit‟ and not a
„petition‟. Therefore, the contention that in case of a petition under Section
125 Cr PC, the limitation would be one year in terms of SectionArticle 105 of the
SectionLimitation Act, 1963, is unacceptable. The Court, therefore, rejects the
challenge to the above answer key.

Question VII [Q.No.81 (in Series A), Q.No.49 (in Series D) and 147 (In
Series C).

43. The said question reads as under:

“A suit is dismissed wrongly on the ground of being barred by
limitation. The order of dismissal would operate as res judicata
and bar a subsequent suit on the same cause of action.

1. The above statement is true

2. The above statement is false

W.P.(C) 10592/2019 and connected matters Page 17 of 30

3. It would depend upon the facts and circumstances of each
case

4. None of these”

44. According to the answer key, the correct answer is (1) above, whereas
according to the Petitioners, the correct answer is (2) above.

45. Counsel for the High Court relying on the decisions in SectionMohanlal
Goenka v. Benoy Krishna Mukherjee, AIR 1953 SC 65 and SectionState of West
Bengal v. Hemant Kumar Bhattacharjee, AIR 1966 SC 1061. Both these
decisions are by 4 Judge Benches of the Supreme Court and they hold that
even an erroneous decision operates as res judicata between the parties to it.
This was also the decision of a 2 Judge Bench of the Supreme Court in
Supreme Court SectionEmployees’ Welfare Association and Ors. V. Union of
India (1989 4 SCC 187).

46. However, counsel for the Petitioners place reliance on the decision in
SectionMathura Prasad Bajoo Jaiswal and Ors. V. Dossibai N.B. Jeejebhoy AIR
1971 SC 2355 which suggest that a decision appear on a question of law
relating to the jurisdiction of the Court which is erroneous would not
preclude a party affected from challenging the validity of that order under
the rule of res judicata. Reliance is also placed on the decisions in SectionSheodan
Singh v. Daryao Kunwar, (1966) 3 SCR 300 and SectionPandurang Dhondi
Chougule v. Maruti Hari Jadhav, AIR 1966 SC 153. Reference has also
been made to decision in SectionState of Uttar Pradesh and Anr. V. Jagdish
Sharan Agrawal and Ors. (2009) 1 SCC 689.

47. The question if carefully perused reveals that the suit was erroneously

W.P.(C) 10592/2019 and connected matters Page 18 of 30
dismissed on the ground that it was barred by limitation. Question of
limitation is invariably a mixed question of law and fact. If that question
was intended to refer to the decision being purely on a question of law, then
it should have expressed so. In that view of the matter the decisions relied
upon by the Petitioners support their plea that the correct answer would be
(2) above. The answer key is therefore incorrect.

Question VIII [Q No. 86 in A series]

48. The question reads thus:

“For the purpose of amendment of pleadings under Order VI Rule 17 CPC,
the commencement of trial takes place

1. When the issues are framed

2. When the affidavits in evidence are filed

3. When the affidavits in evidence are tendered by the witness

4. Once cross-examination begins”

49. Learned counsel for the High Court place reliance on the decision in
SectionBaldev Singh v. Manohar Singh (2006) 6 SCC 498 where there is a stray
observation in para 17 which reads as under:

“commencement of trial as used in proviso to Order 6 Rule 17
in the Code of Civil Procedure must be understood in the
limited sense as meaning the final hearing of the suit,
examination of witnesses, filing of documents and addressing
“of arguments.”

50. However, the above observations do not account for the decision in
Kailash v Nankoo AIR 2005 SC 2441 wherein a three Judge Bench in para
13 held as under:

“13. At this point the question arises : When does the trial of an
election petition commence or what is the meaning to be assigned
to the word ‘trial’ in the context of an election petition? In a civil

W.P.(C) 10592/2019 and connected matters Page 19 of 30
suit, the trial begins when issues are framed and the case is set
down for recording of evidence. All the proceedings before that
stage are treated as proceedings preliminary to trial or for making
the case ready for trial. As held by this Court in several decided
cases, this general rule is not applicable to the trial of election
petitions as in the case of election petitions, all the proceedings
commencing with the presentation of the election petition and
upto the date of decision therein are included within the meaning
of the word ‘trial’.”

51. This was followed in the subsequent judgments in Vidyabai v
Padmalata AIR 2009 SC 1433.

52. Consequently, this Court upholds the contention of the Petitioners that
the answer key to the above question is incorrect. The correct answer is (1)
above.

Question IX [Q.No.59 in Series D]

53. The said question reads as under:

“Where an interim injunction has been granted without notice
to the opposite party and the plaintiff fails to comply with the
provisions of Order XXXIX Rule 3 CPC:

1. The ex parte injunction lapses on the expiry of the time for
compliance

2. The ex parte injunction would necessarily be liable to be
vacated

3. The court can extend the time for compliance of Order
XXXIX Rule 3 CPC even after the Defendant has appeared and
filed written statement

4. The ex parte injunction would be vacated if the non-
compliance is prejudicial to the defendant.”

54. According to the answer key, the correct answer is (4) above whereas

W.P.(C) 10592/2019 and connected matters Page 20 of 30
according to the Petitioners, it is (2) above. The Petitioners rely upon the
decisions of this Court in Ashwani Pan Products Pvt. Ltd. v Krishna
Traders (2012) 128 DRJ 592 (Del.), Marble Udyog Limited v PO Indian
Agencies Pvt. Ltd. 1995 3 AD( Del) 12 and Shiv Kumar Chadha v MCD
(1993) 3 SCC 161.

55. On the other hand, learned counsel for the High Court rely on the
decision in Institute of Inner Studies v Charlet Anderson (2014) 57 PTC

228.

56. The question as framed simply states that there is a failure to comply
with the provision of Order XXXIX Rule 3 CPC with no reference to
whether such failure is prejudicial to the Defendant. That important fact
could not have been presumed by the candidate. In that view of the matter,
Order XXXIX Rule 3 CPC has to apply. The decisions in Shiv Kumar
Chadha v MCD (supra) makes the position explicit.

57. Consequently, the Court upholds the objection of the Petitioners and
holds that the answer key to this question is incorrect. Hence correct answer
is (2).

Question X [Q.No.48 (in Series C) and Q. No.121 (in Series D)]

58. The said question reads as under:

An order for monthly allowance for maintenance or interim
maintenance and expenses of proceeding under Section 125 of
the Code of Criminal Procedure shall be payable:

1. From the date of the order

W.P.(C) 10592/2019 and connected matters Page 21 of 30

2. From the date of the application for maintenance or interim
maintenance and expense of proceedings

3. From the date of order, or, if so ordered from the date of the
application for maintenance or interim maintenance and
expenses of the proceedings

4. From any date as the Magistrate may deem fit and proper.”

59. According to the answer key, the correct answer is (3) above, whereas
according to the Petitioners, it is (2) above.

60. The answer key has adopted the language of Section 125 (2) Cr PC
which reads more or less as answer (3) above. However, there are two
decisions of this Court that support the answer at (2) above. One is Pushpa v
Ram Avtar (decision dated 19th March, 2019 in Crl. Rev. Pet. 347/2017) and
the other is Nisha Saifi v Mohd. Sahid (2019) 3 JCC 1882, both of which
hold that ordinarily maintenance should be granted from the date of the
application and for valid reasons to be recorded from the date of the order. A
candidate who has been following the judgments of this Court, cannot be
faulted for adopting the view of this High Court on an interpretation placed
of Section 125 Cr PC. The answer as suggested by the Petitioners is
therefore the correct answer, if one goes by those judgments.

61. Consequently, the Court upholds the contention of the Petitioners as
regards this question and holds that the answer could well be (2) above.

Question XI [Q.No.149 (in Series C), Q.No.51 (in Series D).

62. The said question reads as under:

“In a suit for recovery of Rs. 25 lakh, the defendant files its
written statement and pleads that it does not owe any money to

W.P.(C) 10592/2019 and connected matters Page 22 of 30
the plaintiff but in fact, it is entitled to recover the sum of Rs 40
lakh from the plaintiff. The defendant, however, does not file
counter claim. Can the defendant file the counter claim at a
subsequent stage in the suit or file a fresh suit seeking recovery
of Rs 40 lakhs?

1. The counter claim and the suit will be barred

2. Only the counter claim would be barred

3. The defendant can file both either a counter claim or a suit

4. The defendant‟s claim stands abandoned.”

63. The answer keys states that the correct answer is (3) above, whereas
according to the Petitioners, the correct answer would be (2) above.

64. After some arguments, this question was not pressed and the challenge
to the answer key to this question was withdrawn.

Question XII [Q.No.172 (in Series C)].

65. The said question reads as under:

“In a civil suit coming up for admission, if the court does not
have the subject matter jurisdiction to grant relief in the suit,
court

1. Cannot grant interim relief under Order XXXIX

2. Can still grant interim relief under Order XXXIX

3. Has to nevertheless issue summons of the suit

4. Has to frame a question of law and refer it to the High
Court.”

66. According to the answer key, the correct answer is (1) above, whereas
according to the Petitioners, it is (2) above. The question is no longer res
integra. The Court that lacks jurisdiction cannot grant the relief, as explained

W.P.(C) 10592/2019 and connected matters Page 23 of 30
in Cotton Corporation of India v United Industrial Bank (1983) 4 SCC

625. The challenge to this answer key is therefore negatived.

Question XIII [Q.No.112 (in Series D)]

67. The said question reads as under:

“Parliament‟s lack of power to alter the Basic Structure of the
Constitution was propounded for the first time in:

1. Sajjan Singh Vs. State of Rajasthan in a dissenting
judgement

2. Keshavanand Bharati Vs. State of Kerala

3. I. C. Golak Nath Vs. State of Punjab

4. Minerva Mills Vs. UOI.”

68. The answer key states that the correct answer is (1) above, whereas the
Petitioners state that it is (2) above.

69. On perusing the relevant paragraph in the judgment of Justice
Mudholkar in Sajjan Singh v State of Rajasthan (1965) 1 SCR 933 i.e.
paras 56 and 56, the Court finds that reference in both these paragraphs is to
the “basic features to the Constitution” and not “basic structure”. It appears
that that expression as such was used first in Keshvanand Bharti (supra).

70. The Court accordingly upholds the objection by the Petitioners to the
answer key to this question. So, the correct answer is (2).

Question XIV (Q.No. 150)

71. Question No.150 reads as under:-

“A supplies goods from Delhi to B at Mumbai under a contract which

W.P.(C) 10592/2019 and connected matters Page 24 of 30
provide s “Courts in Mumbai would have jurisdiction to deal with disputes
arising out of disagreement.” A sues B in a Court at Delhi for the
outstanding balance.

i) The Court would not admit the plaint owing to the jurisdiction clause in
the contract.

ii) the suit would be admitted and only if B raises an objection to the
jurisdiction at Delhi could the Court determine the same.

iii) B can prefer an appeal against the order for admission of the suit in the
Court as Delhi.

iv) B can prefer an appeal against the order of admission of the suit in the
Court as Delhi.”

72. The answer key states that the correct answer is (2) above whereas
according to the Petitioner it should be (1) above.

73. The legal position has been clarified in SectionSneh Lata Goel vs. Pushplata
(2019) 3 SCC 594 which holds as under:

“18. The Court in Kiran Singh case disallowed the objection to
jurisdiction on the ground that no objection was raised at the first
instance and that the party filing the suit was precluded from raising an
objection to jurisdiction of that court at the appellate stage. This Court
concluded thus: (AIR p. 345 para 16)
“16. …. If the law were that the decree of a court which would have
had no jurisdiction over the suit or appeal but for the overvaluation or
undervaluation should be treated as a nullity, then of course, they
would not be stopped from setting up want of jurisdiction in the
court by the fact of their having themselves invoked it. That, however,
is not the position under Section 11 of the Suits Valuation Act.”
Thus, where the defect in jurisdiction is of kind which falls within
Section 21 of the CPC or Section 11 of the Suits Valuation Act 1887,
an objection to jurisdiction cannot be 10 raised except in the manner
and subject to the conditions mentioned thereunder. Far from helping
the case of the respondent, the judgment in Kiran Singh (supra) holds
that an objection to territorial jurisdiction and pecuniary jurisdiction is

W.P.(C) 10592/2019 and connected matters Page 25 of 30
different from an objection to jurisdiction over the subject matter. An
objection to the want of territorial jurisdiction does not travel to the root
of or to the inherent lack of jurisdiction of a civil court to entertain the
suit.”

74. Consequently, the Court negatives the objection to the answer key to the
question.

Question XV (Q No. 190)

75. The said question reads thus:

“The parties to the arbitration agreement are residents of Lucknow and
Kolkata. The contract was performed at Varanasi. The parties agreed that
arbitration proceedings will be conducted at New Delhi and were held at
New Delhi. Where will the petition under Section 34 of the Arbitration and
SectionConciliation Act, 1996 be filed?

1. Delhi

2. Lucknow

3. Varanasi

4. Kolkata”

76. According to the answer key, the correct answer is (1) above whereas the
Petitioner states that it should be (3) above.

77. SectionIn Indus Mobile Distribution Private Limited vs. Datawind Innovations
Private Limited (2017) 7 SCC 678, after discussing Section 2(1) (e) and 20
of the Act, the Supreme Court held that the Court having jurisdiction over
the place where the arbitration proceedings are conducted pursuant to the
agreement between the parties is vested with the jurisdiction to entertain the
Section 11 petition. This view has been reaffirmed in the decision dated 25 th

W.P.(C) 10592/2019 and connected matters Page 26 of 30
July 2019 of the Supreme Court in C.A. No. 5850 of 2019 (SectionBrahmani River
Pellets Ltd. v. Kamachi Industries Ltd.)

78. Though the above decisions were in the context of Section 11 of the Act
the principle would extend to the petition under Section 34 of the Act. Once
the arbitration is taking place in Mumbai pursuant to the agreement between
the parties the further challenge to the Award would have to be in the Court
of that place. Consequently, the Court negatives the challenge to the answer
key to Question No.190.

79. To summarize the judgment of this Court, out of the challenge to the
answer keys for 15 questions, the Court upholds the challenge to answer
keys to the questions at I, II, III, V, VII, VIII, IX, X and XIII above i.e. nine
questions. The Court notices at this stage that there is a negative 0.25 mark
for each wrong answer and, therefore, the prejudice to the Petitioners in
respect of the above 9 questions would be substantial.

80. The next issue that arises is about the consequential order that should be
passed. The Court is conscious that in SectionRan Vijay Singh and Ors. v. State of
Uttar Pradesh and Ors. 2018 (2) SCC 357 it has been held that the Court
should presume the correctness of key answers. In view of the paucity of
time with the exam schedule already announced and no change is possible to
the dates of 12th and 13th October 2019 fixed for the Main exams, the Court
has had to undertake the above exercise.

81. The Court also notes that in similar circumstances the approach adopted
by the Supreme Court in Pallav Mongia v. Registrar General Delhi High

W.P.(C) 10592/2019 and connected matters Page 27 of 30
Court and Anr. (decision dated 20th May 2012 in Civil Appeal 4794 of
2012) was also adopted by this Court in its decision dated 9 th May 2016 in
WP (C) 3453 of 2016 (SectionSumit Kumar v. High Court of Delhi).

82. In Sumit Kumar (supra) the ratio of the decision in Pallav Mongia
(supra) was explained as under:

“23. The Supreme Court in Civil Appeal No.4794/2012, Pallav
Mongia v. Registrar General, Delhi High Court and Anr. had
examined the question of fresh short-listing consequent to
deletion of some questions or correction of the model answer
key. Noticing that the candidates in the first eligible list had
not been excluded from the list of eligible candidates for
appearing in the mains examination, even if the said candidate
had come down in rank in view of deletion of some questions
or change in the model answer key; it was directed that the
other candidates, who upon re-evaluation pursuant to deletion
of questions and modification of the model answer key had
secured more marks than the last candidate allowed to appear
in the main examination vide revised list, would also qualify
and will be included in the eligibility list.”

83. The Court also takes note of the approach adopted by this Court in
SectionGunjan Sinha Jain v. Registrar General, High Court of Delhi 188 (2012)
DLT 627 (SectionDB) and Anil Kumar v. Registrar General, High Court of Delhi
2016 Law Suit (Del) 5583. The Court is conscious that no prejudice should
be caused to those who have already qualified for the Mains.

84. Accordingly, the Court disposes of the petitions by directing as under:

(i) The results of the 353 candidates already declared eligible to appear in
the DJS (Mains) Examination, in terms of the list published on the website

W.P.(C) 10592/2019 and connected matters Page 28 of 30
of the Delhi High Court on 26th September 2019, are left undisturbed.

(ii) In respect of the answer keys which this Court has found to be
erroneous, the High Court will proceed to apply the correct answer keys as
decided by this Court and recompute the results in accordance with the
applicable rules. By treating the marks obtained by the last of the 353
already shortlisted candidates in the revised list as the cut off marks, a
further list of candidates found eligible to sit for the Mains exam will be
prepared and published on the website of the Delhi High Court not later than
6 pm on 4th October 2019.

(iii) Although an earnest plea has been made by the Petitioners before this
Court to postpone the date of the Mains exam, the Court is not inclined to do
so in view of the deadline given by the High Court to the Supreme Court in
the aforementioned matter having to be adhered to. In other words it is
clarified that even the additional candidates found eligible as a result of the
above exercise will have to necessarily sit for the Mains exam on the dates
already fixed i.e. 12th and 13th October 2019.

(iv) Apart from placing the list of additional eligible candidates on the
website by 6 pm on 4th October 2019, the High Court will communicate to
each such eligible candidate both by SMS as well as e-mail (on the mobile
number and email id provided by such candidate to the High Court) of such
candidate having qualified for writing the Mains exam.

W.P.(C) 10592/2019 and connected matters Page 29 of 30

85. The writ petitions and pending applications are disposed of in the above
terms.

86. Order be issued dasti under the signatures of the Court Master.

S.MURALIDHAR, J

TALWANT SINGH, J
OCTOBER 01, 2019 / tr/rd/mw

W.P.(C) 10592/2019 and connected matters Page 30 of 30

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