INSTITUTION OF SUITS
The term suit has not been defined in the Code. In Hansraj Gupta v. Official Liquidators of Dehradun– Mussorie Electric Tramways Co. Ltd., AIR 1933 PC 6, the Privy Council and in Pandurang Ramchandra v. Shantibai Ramchandra, AIR 1989 SC 2240, the Supreme Court held that “suit” means a civil proceedings instituted by the presentation of a plaint. According to Section 2(1) of Limitation Act, 1963 ‘Suit’ does not include an appeal or an application. According to some other views, ‘suit’ includes appellate proceeding also; but it does not include an execution proceeding. Ordinarily, suit under the CPC is a civil proceeding instituted by the presentation of a plaint.
Essentials of Suit: In Krishnappa v. Shivappa, ILR (1907) 31 Bom 393, the court has held that there are four essentials of a suit:
- Opposing parties
- In a civil suit, the presence of both the plaintiff, who files the suit, and the defendant, who is sued, is necessary. Order-I
- Subject Matter
- ‘Subject-matter’ means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him.
- Cause Of Action
-
A cause of action is the foundation of a suit. It must be antecedent to the institution of a suit and on the basis of it the suit must have been filed. The term Cause of Action refers to a set of facts or allegations that make up the grounds for filing a lawsuit. Order II, Rules 3, 6 and 7
-
- Relief
-
Relief is the legal remedy for wrong. According to Rule 1 of Order 2 every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
-
SUBJECT -MATTER
Examples: a) Where the suit is instituted for the recovery of immovable property with or without rent, the subject-matter is that immovable property.
b) Where the suit is instituted for the compensation for wrong done to one movable property, the subject-matter is that movable property.
More specifically on the basis of the subject-matter the jurisdiction of a Court is determined in some cases. For example, a Presidency Small Causes Court has no jurisdiction to try suits for specific performance of a contract, partition of immovable property, foreclosure or redemption of a mortgage etc. Similarly, in respect of testamentary matters, divorce cases, probate proceedings, insolvency proceedings etc. only the District Judge or Civil Judge (Senior Division) has jurisdiction.
Section 26 and Order IV provides for institution of suits.
INSTITUTION OF SUITS
- Institution of suits. —
1 [(1)] Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
2 [(2) In every plaint, facts shall be proved by affidavit:]
3 [Provided that such an affidavit shall be in the form and manner as prescribed under Order VI of rule 15A.]
Section 26 lays down that every suit shall be instituted by the presentation of a plaint induplicate or in any other manner prescribed by the Code of Civil Procedure, to the court or such officer appointed in this behalf and the facts stated therein must be supported by an affidavit. This section must be read with Order IV, VI & VII of the first schedule.
ORDER IV
Institution of suits
1.Suit to be commenced by plaint.—(1) Every suit shall be instituted by presenting 3 [plaint in duplicate to the Court] or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2)].
4.2. Register of suits.—The Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year according to the order in which the plaints are admitted.
Rule 1 of Order IV must be read with Section 26 of CPC in extension of the law as provided in the section. This rule provides that every suit is taken to be duly instituted only when it is presented by a plaint, in duplicate and presented to either the court directly or to a proper officer appointed in this behalf. And also that such plaint must comply with the rules contained in Order VI & VII.
Q. – How the suit is instituted?
Every suit is instituted by presenting a plaint to the proper court or officer. [Order IV R. 1 r/w Section 26 of CPC]
Q. – Who will present the suit and how he will present the suit?
Plaint may be presented personally or by authorised pleader. It must be presented in duplicate. Here we are required to comply with the general rules of pleading i.e. pleads material facts and not evidentiary value [Order VI], Must be presented on a working day at office hours. When the plaint is presented before the office it is the date of the institution of suits. Every pleading must be signed by the parties [Order VI Rule 14] and Plaint must be supported by affidavit [Order VI Rule 15]. If the rules contained in Order VI & VII are not complied with then it will not deemed to be duly instituted, such that Order VI & VII must be complied with
The Supreme Court also says basic purpose of pleading as follows
- i. To give exact intimation of case to other.
- To enable the court for determination of what is the real issue between the parties.
iii. It is to prevent deviation from the real cause of litigation.
Rules of Pleadings:
Every pleading must state the facts and not the laws.
It must state material facts only and not evidence.
In other words it should have facta probanda and not facta probantia.
It must state facts in concise form [Order VI Rule 2] Pleading shall not raised any claim or fact inconsistent with previous pleadings [Order VI Rule 7].
INTRODUCTION TO PLAINT
The expression ‘plaint’ has not been defined in CPC. However, it can be said to be a statement of claim, a document, by presentation of which a suit is instituted. Its object is to state the grounds upon which the assistance of the court is sought by the plaintiff. It is a pleading of the plaintiff.
The term Pleadings, Drafting and Conveyancing are interchangeably used very often in the court proceedings. A Plaint is a pleading and thus it should meet the general rules or guidelines of pleading. It is a specific document filed by the parties in a civil lawsuit which states the current position of the parties in litigation. It is regarded as backbone of any judicial system.
ORDER -VII of the Code of Civil Procedure deals with Plaint.
| Only facts have to be stated and not law | The facts stated should be material facts; |
|
However, the rule was expanded a little in Union of India v. Sita Ram Jaiswal[4] wherein the apex court held that if there is a point of law which is in dispute or which has become part of the dispute the point of law must be explained in the pleadings with necessary reference to relevant and vital facts of the case.
|
The apex court has explained the meaning of ‘material fact’ in Udhav Singh v. Madhav Scindia[5]. The court averred that ‘material facts’ all those primary facts that are relied on by the parties either to substantiate their claims and establish their cause of action or used for their effective defence or counterclaim against the claiming party. |
| No evidence should be stated; | The facts should be stated in a concise, brief and clear manner |
| Plaint should contain the relevant facts on which either party relies but it should not state the evidence by which the fact is proposed to be proved:
it proposes to produce before the court to be used against the adverse party. This is to ensure the fairness of a trial and assure safety of the evidences |
The ‘rule of brevity’ requires that the pleadings are short, unambiguous and not capable of multiple interpretations but only one interpretation that the pleader desires to convey.
In Virendra Kashinath v. Vinayak N. Joshi[6], the court observed that pleadings must be brief and niggling should be avoided. |
OTHERS RULES IN ORDER – VII
ORDER -VI , R-2
Where the suit is for recovery of money, the precise amount claimed;
Where the suits is for accounts or mesne profits or for movables in the possession of the defendant or for debts which cannot be determined, the approximate amount or value thereof;
ORDER -VI , R-3
Where the subject-matter of the suit is immovable property a description of the property sufficient to identify it, e.g. boundaries, survey numbers, etc.
ORDER -VI , R-4
Where the plaintiff files a suit in the representative capacity, the facts showing that the plaintiff has an actual existing interest in the subject-matter and that he has taken steps that maybe necessary to enable him to file such a suit;
ORDER -VI , R-5
The interest and liability of the defendants in the subject-matter of the suit;
ORDER -VI , R-6
Where the suit is time-barred, the ground upon which the exemption from the law of limitation is claimed
ORDER -VI , R-7
Relief to be specifically stated
CONTENTS OF PLAINTS — O-VII,R-1
- Name of the court in which the suit is brought.
- Name, description and place of residence of plaintiff.
- Name, description and place of residence of defendant
- Plaintiff or defendant is a minor or unsound mind, statement to that effect
- Facts constituting the cause of action and when it arose.
- Facts showing that the court has jurisdiction.
- Relief which the plaintiff’s claims
- Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so relinquished or allowed.
- Statement of value of subject-matter of the suit for the purpose of jurisdiction and of the court fee as the case admits.
In every Plaint, Facts shall be proved by Affidavit
Sub section (2) has been inserted with the main object of reducing the possibility of false statements being made in the plaint and provides that in every plaint , the facts must be proved by an affidavit. Further Order VI rule 15(3) also provides that the person verifying the plaint shall also furnish an affidavit in support thereof
The purpose of adding the subsection in 1999 amendment was to prevent the litigants from making false and vague allegations against each other .
If a person telling lies under affidavit under sub section (2) of section 26 , he can be prosecuted under Section 193 of IPC 1860. Punishment for false evidence
No comment