INSTITUTION OF SUIT UNDER CPC,1908

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This article is written by Tanisha Mohanty of 7^th Semester of BBA.LLB of SOA National Institute of Law, an intern under Legal Vidhiya.

Abstract:

Here in this research the author has given the proper introduction about the topic which includes the definition of suit, plaint, written statement. This article further describes the essentials for suit i.e., the opposing parties, the cause of action, the subject matter and the relief claimed. Then the author has briefly described about the procedural aspect of institution of the suit. Further the author has given emphasis upon particulars of the plaint, amendment of pleadings, rejection of plaint, return of plaint, place of suing, presentation of plaint. The administration of civil proceedings is governed under the Code of Civil Procedure, 1908. The present article provides the comprehensive study of the provisions of the institution of a suit in civil matters under section 26 of CPC, 1908.

Key words:

Plaint, written statement, plaintiff, defendant, relief, jurisdiction, cause of action, misjoinder, Place of suing, jurisdiction of civil courts.

Introduction:

Law is based on the principle of justice, equity, and good conscience.

The word “suit” is not yet defined under the Code of Civil Procedure, 1908. It is widely acknowledged that it refers to a procedure that starts when a complaint is filed with a civil court. A plaint, which is a written declaration of a claim, precisely states the relief requested.

In Pandurang Ramchandra v. Shantibai Ramchandra[1], the Supreme Court held that “suit” means a civil proceeding instituted by the presentation of a plaint.

Black’s Law Dictionary defines a suit as a legal action brought by one or more parties against the other. After the plaint is filed by the plaintiff, the defendant needs to submit a written statement on his behalf.

Plaint:

Every lawsuit is started by the filing of the plaint. The party who files a plaint is known as plaintiff. Plaint is a type of petition which carries certain type of allegations against defendant i.e., the defendant has obstructed the rights of the plaintiff.

Written statement:

The written statement is submitted by the defendant to the court subject to the allegations made by the plaintiff whether it is true or not.

Essentials for suit:

Section 26 and order I, II, IV, VI, VII of the Code of Civil Procedure discusses about the rules governing the institution of a lawsuit.

In the case of Krishnappa vs. Shivappa[2] the court held that there are 4 essentials of a suit and they are:

The opposing parties:

Schedule 1, order I of the code of civil procedure, 1908 deals with parties to the suit.

A suit cannot be instituted without the absence of plaintiff and defendant. So, it is important that there should be a plaintiff and a defendant in every suit. Also, there can be more than one plaintiff or defendant while filing a suit. There are two types of parties i.e., a necessary party and a proper party.

A necessary party is a party whose presence is essential for the fair and proper adjudication of case. In the absence of a necessary party, if any decree or order is passed then such order cannot be effectively executed.

A proper party is a party whose presence is essential but not mandatory, for fair adjudication of case. If any decree or order is passed in absence of proper party then it can be implemented effectively.

2. The cause of action:

Schedule I, order II- rules 3, 6 and 7 of the code of civil procedure deals with the cause of action.

A cause of action is a group of justifications used to file a lawsuit in court. A set of facts or accusations is what qualifies as legal justification for bringing a lawsuit. It contains all relevant information about rights and their infringement. A cause of action is required, and if a suit is to be filed, the cause of action must be mentioned in the plaint, according to Order II, Rule 2 of the CPC.

It is to be noted that the facts must be stated in a straightforward manner. If a cause of action is brought against a person, that person is a party to the lawsuit. The Court must reject any such plaint in accordance with Order 7, Rule 11, therefore it is vital to keep in mind that every complaint must state a claim or some action taken by the defendant.

Joinder of causes of action:

Order II, rule 3 deals with the joinder of action. In accordance with this Rule, unless otherwise provided, a plaintiff may combine multiple claims against the same defendant or defendants in a single lawsuit. Additionally, any plaintiffs who have claims against the same defendant(s) in which they both have an interest may combine those claims in a single lawsuit.

Power of the court:

When it seems to the Court that the joinder of causes of action in a single suit may embarrass or prolong the trial, or is otherwise inconvenient, the Court may order separate trials or make such other decision as may be necessary in the interests of justice (Rule 6).

Objections as to the misjoinder:

Unless the ground of objection has since arisen, all objections on the basis of the misjoinder of causes of action shall be raised as soon as possible and, in all instances where issues are settled, at or before such settlement. Any such objection not raised in a timely manner shall be deemed to have been waived.

3. The subject matter:

The subject matter of a civil dispute is the group of facts or information relating to movable or immovable property that leads to a demand for relief.

In simple words, the right of property asserted by the plaintiff in the complaint is the subject of a lawsuit. The court makes decisions regarding the parties’ rights in relation to the issue at hand.

4. The relief claimed:

The relief requested by the plaintiff must be included in every lawsuit. The plaint should be very clear about the relief sought. The plaintiff’s request for relief must be one that the court may grant. A person must file a lawsuit for each relief when they are entitled to more than one for the same cause of action. He may, however, file a claim for one or more of the available reliefs and retain the right to file a claim for the remaining reliefs with the court’s approval. If such approval is not acquired, he will be prohibited from filing any further lawsuits to seek the remedy that was missed.

Institution of suit under the Code of Civil Procedure, 1908.

The following are instances of the procedural aspects of filing lawsuits:

Preparation of a plaint
Choosing the appropriate place of suing
Presentation of the plaint

Filing of a plaint:

It is significant that CPC, 1908 does not define the term “plaint.” The definition of “plaint” in the dictionary is that it is a written statement of grievance submitted to a court of law asking for redress of the offence. Order VII comprises several rules and deals with the plaint format.

According to Order VI Rule I of the CPC, 1908, “a plaint or a written statement” is what a “pleading” is. The beginning of a suit is filing of a plaint. After engaging legal representation, the plaintiff files a document known as a plaint that contains numerous facts and circumstances pertaining to their complaint.

According to order VII, rule- 1, particulars to be contained in a plaint are:

Name of the court where the lawsuit was filed;
Name, description, and address of the Plaintiff;
Name, characteristics, and address of the defendant, to the best of our knowledge;
When either the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect is necessary;
the circumstances giving rise to the claim and when they occurred;
facts demonstrating the court’s jurisdiction;
the plaintiff’s requested form of relief;
If a set-off has been authorized by the plaintiff or if a portion of his claim has been waived, the sum permitted or waived; and
To the extent authorized by the case, a statement of the worth of the subject matter of the suit for the purposes of jurisdiction and court costs.

Amendment of pleadings:

As per rule 17 of order VI of CPC, 1908, The Court may, at any stage of the proceedings, permit either party to alter or amend its pleadings in such a way and on such terms as may be just. All such amendments shall be made when it is necessary for the determination of the real question in controversy or is just and proper or is necessary in the interest of justice.

Rejection of a plaint:

According to rule 11 of order VII, the plaint shall be rejected in the following cases:

Where the cause of action isn’t disclosed.
when the plaintiff fails to update the valuation after being instructed by the court to do so within a certain time frame and the remedy sought is undervalued;
When the remedy sought is appropriately valued but the plaint is insufficiently stamped, and the plaintiff is asked by the court to furnish the requisite stamp paper within a time set by the Court but fails to do so.
where it is implied from the plaint’s language that the lawsuit is illegal under any applicable law;
if a duplicate filing is not made;
when the plaintiff disregards Rule 9 requirements.

In the case of Kavita Tushir v. Pushpraj Dalal[3], the Delhi High Court rejected the application of a plaint stating that there could be no piecemeal rejection of the plaint. “Piecemeal rejection” of a plaint means that a plaint must be rejected as a whole, not partly.[4]

In Ram Prakash v. Rajeev Kumar Gupta[5], the court ruled that the plaint may be dismissed at any time i.e., before the judgement is given.

Return of plaint:

Rule 10 order VII deals with return of the plaint

Rule 10 (1) says, ‘Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted.”

Place of suing:

Under Section 9 of the Civil Procedure Code (CPC), the courts are competent to hear all civil suits, except those in which the parties are prohibited from having cognizance. The court’s jurisdiction is determined by the legislature, and parties by the wording of their pleas cannot interfere with it. A defect of jurisdiction thus goes to the source of the dispute and impairs the court’s power to pass a decision. A decision by the Court of Justice in such a case is known as a coram non judice. Therefore, the next step is to select the appropriate court, which is dependent on the content of the plea. Parties can choose between several courts having the same jurisdiction, and in the case of Ananti v Chhannu[6], the Court has determined the correct law in this regard. The plaintiff chooses the forum and files the suit. If the plaintiff proves the truthfulness of his facts, he will be granted relief from the chosen forum.

Section 15 to section 20 of CPC, 1908 deals with place of suing.

Section 15, deals with “the plaintiff shall file the suit in the court of lowest competent jurisdiction.”

Section 16, deals with “the lawsuits ought to be filed in the jurisdiction where the dispute is located.”

Section 17, deals with “suits of immovable property situate within jurisdiction of different courts.” It explains the subject matter of lawsuits involving immovable property that is subject to the jurisdiction of several courts. If two immovable properties have the same cause of action but are in different jurisdictions, the lawsuit may be filed in any court in the local jurisdiction where any portion of the property is located.

In the case of Shivnarayan v. Maniklal[7], the Hon’ble Supreme Court ruled that under Section 17 of the CPC, the term ‘property’ might refer to more than one property. If the cause of action is same, suits brought for various properties may be brought in any court with jurisdiction.[8]

Section 18, deals with “place of institution of suit where local limits of jurisdiction of courts are uncertain.” It outlines that, if a court is satisfied with the uncertainty and decides to entertain or dispose of any suit relating to that property, the court must record a statement to that effect. The court’s decree in the suit will have the same effect as if the property were located within the local limits of its jurisdiction, provided that the institution of the suit of immovable property between two or more courts is done in accordance with the law.

When a statement is not recorded in accordance with Section 18(1) and an objection is brought before an Appellate or Revisional Court that a decree or order in a suit relating to such property was made by a court not having jurisdiction where the property is situated, they shall not allow the objection unless they presumptively find that there was no reasonable basis for uncertainty as to the court having jurisdiction at the time the suit was instituted and there has been a subsequent change in circumstances.

Section 19, deals with “suits for compensation for wrongs to person or immovables.” it deals with lawsuits seeking compensation for wrongdoing to a person in relation to movable property. A plaintiff may choose to file a lawsuit in the local limits of the jurisdiction where the defendant resides, conducts business, or performs services for compensation for wrongs done to a person or to movable property, or in the jurisdiction where the property is located.

Section 20, deals with “other suits to be instituted where defendants reside or cause of action arises.” Section 20 is a residuary clause of a place of suing. It deals with the filing of lawsuits in cases where the defendant resides there, runs a business there, works there for personal gain, or where the entire or a portion of the claim originates within the court’s local jurisdiction. If there are many defendants at the time the lawsuit is filed, it may be started where any defendant or defendants resides, conducts business, or works for pay, so long as the plaintiff gets permission from the court. There is no need to request permission from the court if the defendants agree to the lawsuit’s venue.

Presentation of plaint i.e., commencement of suit:

Section 26, Order IV deals with the institution of suit.

The cluses pertaining to the filing of a lawsuit are found in section 26, order 4. Order 4 rule 1 appears as follows:

(1) Every lawsuit must be started by submitting a plaint in duplicate form to the court or the officer who has been appointed.

(2) every plaint must abide with order VI and VII, if and to the extent that they apply.

(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2).

Section 26 provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Order 4 Rule 1 lays down the procedure for institution of suit; but does not speak of any ‘other manner’ for the purpose. The amendment makes it clear that unless the plaint is filed in duplicate it will be deemed to be incomplete. To prevent needless delays in the proper compliance with the sub-rules (1) and (2) following the filing of the plaint, sub-rule (3) has been added.

Rule 2 Order IV deals with Register of suits. It states that the court shall mention the particulars of every suit in a book and it is known as register of civil suits. These entries will be numbered each year in accordance with the order that the admission of the complaints.

A plaint can be presented by the plaintiff or by his authorised agent or by his advocate.

Jurisdiction of courts w.r.t suits of civil nature.

Courts have jurisdiction over cases of a civil nature. The following elements largely determine jurisdiction:

valuation of the suit filed;
territorial boundaries of a court’s jurisdiction;
the topic under dispute in court.

In accordance with Section 9 of the CPC, courts have the authority to hear all civil lawsuits, except for those in which the cognizance is not expressly or implausibly barred.

Conclusion:

One of the guiding principles of the legal system is “Ubi jus, ibi remedium,” which means that every right has a remedy. To seek restitution for losses the defendant has caused, a plaintiff may bring a civil action. A plaint, which is the initial stage in the documentary procedure for starting a civil lawsuit, must contain all pertinent material. However, since the plaintiff filed the lawsuit and provided the supporting evidence, it is up to them to prove their case. By providing the genuine facts and adequate grounds for the filing of the lawsuit, the plaintiff must persuade the court and substantiate each accusation made against the defendant.

In other words, The burden of proof in a civil matter or suit is on the plaintiff. The plaintiff must show that the defendant is accountable for damages and that the charges levelled against them are true. A complaint must contain all necessary details and substantiating evidence. Additionally, the plaint should be accompanied by the required court costs. Court costs are a minor portion of the total claim or suit value. Depending on the type of lawsuit, the Court Fees Act of 1870 and the Stamp Act of 1899 stipulate the necessary sums for court fees and stamp duty.

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