Institute a suit by presenting a plaint
Every suit shall be instituted by presenting a plaint in duplicate to the court. The court should have jurisdiction to try the suit and be the lowest in grade competent to try it.
The detailed rules, governing the presentation of a plaint, are included in Order VI and VII of the Code of Civil Procedure, 1973 (CPC).
The court, when the suit is admitted, should enter the particulars of every suit in a Register of Civil Suits.
Presentation of plaint
A case in a court, consisting of some disputes between two or more parties, is instituted by filing a plaint in duplicate (Order IV Rule 1 of the CPC).
Every plaint shall contain only material facts in concise form on which the plaintiff relies for his claim and should not include evidence by which they are to be proved.
The plaint shall include the name of the court in which the suit comes, the details of the plaintiff and defendant, the cause of action, the value of the subject matter, the relief sought etc. It shall be divided into paragraphs separating each allegation in a paragraph numbered consecutively.
Every plaint shall be signed by the party and his pleader. Every plaint shall be verified at the foot by the party. The verification should show what all paragraphs he verifies based on his own knowledge and what other paragraphs he verifies based on the information he received from other sources.
The plaint should normally include all the documents the plaintiff relies on if they are in his possession. Otherwise, he has to state in whose possession those documents are then.
The plaintiff, who fails to file the documents along with the plaint, can file them later only with the permission of the court.
Plaint must be accompanied by an affidavit
The person verifying the plaint shall furnish an affidavit in support of his plaint. The plaint shall contain the facts constituting the cause of action, the grounds of the suit and the relief he seeks, in precise terms.
Every suit shall include the whole claim in respect of the cause of action. If he leaves any claim out except with court’s permission, he cannot sue for the claims later. The suit shall be framed in a manner it affords ground for conclusive decision in dispute so as to prevent any further litigation on those issues.
Who can appear in the court?
All persons seeking any right to relief out of a legal act or issue can join in one suit as plaintiffs and all persons against whom any right to relief alleged to exist may join as defendants in a case.
The party in person, his recognized agent or his pleader can appear, apply, and act in a court proceeding, as per Order III Rule 1 and 4 of the CPC.
The party to the suit shall appear in person if the court so directs. Recognized agents are the persons holding power of attorney which authorizes them by the party to the suit, to appear and do those things specified in the act, on behalf of the party.
A pleader needs to file a Vakalath
No pleader can appear on behalf of a party unless he is duly appointed for the purpose by filing a duly signed document, a Vakalath, in the court in writing (Order III Rule 4 of the CPC). However, a pleader can plead on behalf of the party by filing a Memorandum of Appearance (Order III Rule5 of the CPC).
However, a pleader can ask another pleader to represent a suit he conducts, in his absence, as per Order III Rule 4(5) of the CPC.
Rejection of Plaint for having no cause of action
On the other hand, if the plaint is defective regarding following matters, it will be rejected by an order of the court stating the reasons for rejection.
The court can reject a plaint if it does not disclose cause of action, relief claimed is undervalued, the plaint is insufficiently stamped, the plaint is barred by law or the plaint is not filed in duplicate etc (Order VII Rule 9 of the CPC).
Serving of summons to the defendants
After institution of the suit, summons, along with the copy of the plaint, will be issued to the defendant asking him to appear and answer the claim and to file a written statement of his defence (Order V Rule 1 of the CPC).
The defendant needs to present the written statement within 30 days from the date of service of summons on him. In case he fails to file the statement within the specified time he can seek the permission of the court to file it later but it must not be later than 90 days (Order VIII Rule 1 of the CPC).
The defendant must plead all the facts which show why the suit is not maintainable. The denial of grounds alleged by the plaintiff must be specific on each point. A denial in general is of no much value. If the denial is not specific but only general it will be treated as admission of such allegations.
If the defendant does not file a written statement, it is lawful for the court to pronounce judgment on the basis of the facts contained in the plaint.
When the court issue orders for service of summons, the plaintiff will have to file enough copies of duly filled in summons along with requisite fee for the service of them, within 7 days (Order VII Rule 9 of the CPC).
The summons can be served by registered post, to the agent, by speed post or approved courier services, fax, electronic message etc. (Order V Rule 3 of the CPC)
Every summons shall be annexed with a copy of plaint. A summons without a copy of the plaint is not due service (Order V Rule 2of the CPC).
Summons can be served by direct service, service on agent, service on adult member of the family, affixing a copy on the outer door or conspicuous part of the house, by post, though any court if the defendant resides within its area, or foreign mail service.
The court can permit the defendant to effect service of summons to the plaintiff for his appearance. The person served with summons will have to sign as acknowledgement of the receipt of it.
If the defendant refuses to accept service of summons the serving officer shall affix a copy of the summons on the outer door or some conspicuous part of the house the person normally resides.
The court can send a letter containing all the details of the summons in a letter form signed by the judge as a substitution of service of summons. The defendant will have to appear before the court as the summons stipulates (Order V Rule 29 of the CPC).
Defendant can appear in person or by pleader
A defendant may appear in person, or by a pleader. The persons who can answer the questions relating to the claim can accompany the pleader (Order V Rule 1(2) of the CPC).
The court shall order the defendant and plaintiff to appear in person, if the court finds some reason for their personal presence. Otherwise, the pleader can attend the court on behalf of the party.
If the plaint relies upon documents, it shall include a list of documents. Otherwise, the list shall be produced in the court with its permission. The summons can be either to settle issues or to for final disposal of the suit. If the summons is for final disposal the court can ask the defendant to produce the witnesses on the day.
Plead set off or counter claim in written statement
The written statement must include a plea of set-off or a counter claim if the defendant wants to bring up any such claim. The set-off that the defendant brings up will work something like a plaint in a cross – suit.
The court then will have to pronounce its judgment both in the original plaint and the counter claim put forth by the defendant as well. If the plaintiff makes default in replying to the counter claim by the defendant the court can pronounce the judgment against the plaintiff in regard to the counter claim (Order VIII Rule 6 of the CPC).
List of documents to be filed
If the defendant relies upon some documents in support of his defence he shall enclose a list of such documents and a copy each of them, along with the written statement if such documents are in his possession.
If they are not in his possession, he can state it in his statement that in whose possession such documents are.
Appearance of Parties in the court
The parties to the case shall attend the court on the day fixed in the summons in person or by their pleaders. If the parties are in attendance the court shall hear the suit or adjourn it to a future day. (Order IX Rule 1 of the CPC)
If the plaintiff fails to pay the court fee or postal charges for service of summons the court shall dismiss the suit (Order IX Rule 2 & 3 of the CPC).
Neither party appears: Where neither party appears when the suit is called on for hearing the court may dismiss the suit (Order IX Rule 3 of CPC). But the court can set aside the dismissal if it is satisfied of the reasons for non-attendance or a fresh a suit can be brought in (Order IX Rule 4 of the CPC).
Plaintiff alone appears: If the plaintiff alone appears the court can order that the suit be heard exparte, if there is no deficiency in serving notice (Order IX Rule 6 of the CPC). If the defendant appears on the adjourned day and assigns good cause for previous non-appearance, he can be allowed to take part in the proceedings on paying cost or as directed by the court (Order IX Rule 6 of the CPC)
Defendant alone appears: If defendant alone appears the court can dismiss the suit. The plaintiff is precluded from bringing a fresh suit in such a dismissal but he can apply for setting the dismissal aside (Order IX Rule 8 & 9 of the CPC).
Ex-parte decree can be set aside: If a decree is passed ex-parte against the defendant, the defendant can seek to set aside the decree, on serving due notice to the other party (Order IX Rule 13 of the CPC).
Examination of parties
At the first hearing of the suit the court shall ascertain from each party whether he admits or denies the allegations of facts made in the pleading. At the first hearing the court shall examine the parties and the companions orally (Order X Rule 1 of the CPC).
After recording the admission and denials at the first hearing, if the court finds any possibility of some sort of settlement acceptable to the parties, the court may refer the matter for arbitration conciliation, judicial settlement, lok adalat or mediation. If the alternative dispute resolution fails, the matter can again be referred to the court and the court can proceed with the suit as usual.
At any subsequent hearing the court may examine any party present in the court who may be able to answer any material question relating to the suit. The substance will be reduced to writing by the judge. The written deposition will form part of the record.
If a pleader refuses or is unable to answer any material question the court asks, the court may postpone the hearing of the suit to a day not later than 7 days. The court may pronounce its judgment even if the pleader does not come on the day (Order X Rule 4 of the CPC).
Delivery of interrogatories
A party to a suit can, with permission of the court, deliver interrogatories containing questions to elicit the admission he desires from the other party. The party has to submit to the court the particular interrogatory he proposes to deliver. The court will decide the matter with 7 days from its submission. The form of interrogatory is provided in Form No 2 of Appendix C, in the Code of Civil Procedure.
Scandalous or irrelevant or mala fide interrogatories can be objected to by the other party on an application filed within 7 days of service. The court can struck out prolix, vexatious or unnecessary interrogatories.
Interrogatories can be answered by filing affidavit (in Form No 3, Appendix C of CPC) within ten days or the period that the court allows.
Discovery & production of documents
A party can also apply to the court for directing any party to make discovery of the documents in his possession relating to the disputed matter.
On hearing the application, the court will refuse or allow the application specifying the classes of documents.
The party in possession of document can object to the production of document. The court can then order production of such document.
Inspection of documents by the other party
A party can give notice to the other party to produce for his inspection of any document referred to in the pleadings or affidavits of the other party. The other party has to reply to the notice within 7 days of its receipt specifying the time at which the document can be inspected within next three days. If he refuses to comply with the notice, he cannot use that document in evidence. The court can refuse such application if the discovery is unnecessary.
If the party, served with a notice relating to inspection of documents, omits to give a reply to it specifying the time for inspection the court can make an order for inspection as it thinks fit, if the other party file an application.
Admission of facts by parties
Any party to a suit may give notice that he admits the truth of the whole or any part of the case of any other party ( Order XII Rule 1 of the CPC).
Either party to a suit may call upon the other party to admit within 7 days any document. The document shall be deemed to be admitted, if it is not denied specifically (Order XII Rule 2 of the CPC).
When the admission of the fact has been made in the pleading or in any other form – either orally or in writing – the court can make such judgment regarding such admissions. The court can then draw up a decree thereon (Order XII Rule 6 of the CPC).
Production of documents in the court
The parties in a case will have to produce all the documentary evidence in original with an accurate list of such documents before settlement of issues. But it is possible for any party to bring in documents later for cross examination or refreshing the witnesses’ memory (Order XIII Rule 1 of the CPC).
The court may reject any irrelevant document which is inadmissible by recording the grounds of such rejection, with due endorsement and due sign or initial of the judge.
Every admitted document / its copy shall form part of the record. Documents not admitted in evidence shall not form part of the record. The court can direct impounding of any document if it sees sufficient cause.
The admitted documents will be returned when the case has reached its finality. That means when judgment is issued in the appeal of the suit or the time for filing the appeal has elapsed (Order XIII Rule 9 of the CPC). .
The legal provisions relating to documents will apply to the material objects as well.
Framing or settlement of issues by the court
A case is for settling some dispute put forth by one party and denied by the other at rest. It may be either an issue of fact or an issue of law (Order XIV Rule 1 of the CPC.
On reading the plaint, the written statement and hearing the parties, the court shall find out the issues of facts or issues of law on which the parties are in dispute.
The court may issue judgment and its decree on every issue of fact or issue of law after reading the pleadings, examining the witnesses and hearing the parties (Order XIV Rule 2 of the CPC.
Disposal of the suit at the first hearing
At the first hearing of a suit if the court thinks that the parties are not at issue on any question of fact or question of law the court can pronounce its judgment ( Order XV Rule 1 of the CPC).
Even if some questions of fact law exist the court can frame those issues and may pronounce judgment if it thinks that no further argument or evidence is required and it will not end up in injustice.
If the finding in a case at the first hearing of a case is not sufficient for a decision the court shall continue with further hearing, evidence, and argument.
Presentation of list, summons to & attendance of witnesses
Not later than 15 days from the settling of issues the parties shall present in the court a list of witnesses whom they propose to call to give evidence or to produce documents and obtain summons to them (Order XVI Rule 1of the CPC).
The parties shall have to bear the expense of serving the summons and pay it to the court. The party should deposit within 7 days of application such sum ordered by the court towards travel expenses. The court can permit even the party to effect service of such summons.
A party desirous of obtaining any summons for the attendance of any witness shall file in court an application stating the purpose for which the witness is proposed to be summoned. It shall be done within 5 days of presenting the list of witnesses (Order XVI Rule 2 of the CPC).
Every summons shall state the time, place, and purpose of attendance of the witness. The summons to witness may be either to give evidence or to produce any document. If the person, without lawful excuse, fails to attend or to produce document the court may issue a proclamation requiring him to attend the court. The court can issue a warrant to arrest the person and make an order for attachment of his property. If witnesses appear attachment may be withdrawn. The court can sell his attached property too (Order XVI Rule 5 of the CPC).
Even without summons a party can bring witness to give evidence or to produce documents. The court can examine not only witnesses but also any person whom it thinks necessary.
Evidence of parties taken by the court / commissioner
The examination-in-chief of a witness shall be on affidavit (it is called proof affidavit) the copies of which shall be supplied to the opposite party. If the witness relies on some documents the proof and admissibility of them would be decided by the court.
The cross examination and reexamination of the parties shall be taken either by the court or by the commissioner appointed by it. The court or the commissioner can record his remarks as it thinks material respecting the behavioural attributes of any witness.
When any question put to a person is objected to by the other party, the court can allow it on merit. The court then shall take down that question, answer, the objection and the name of the person making it together with the court’s decision thereon.
The commissioner shall return such evidence together with his report in writing to the court, normally within sixty days.
When a witness has to leave the court’s jurisdiction the court can take evidence any time after the institution of the suit when somebody applies for it.
Issue of Commission: In incidental proceedings
The court has authority to issue commission in incidental proceedings when it thinks it is necessary to do so in the interest of justice. The commission is usually issued for the following purposes: –
- to examine any person as a witness,
- to make any local investigation,
- to make partition of any property,
- to conduct sale of movable property,
- to examine or adjust accounts,
- to make scientific investigation, and such other things
The party seeking commission has to pay the expenses ordered by the court towards the expenses of the commission ( Order XXVI Rule 1 of the CPC).
The Commissioner thus appointed can examine the related parties, examine the relevant documents and enter upon or into any land or building mentioned in the order. For such purposes the Commissioner has the power of a civil court and the civil procedure code applies to such processes. The court shall fix a time for return of the commission after execution of the assigned responsibilities.
Injunctions and interlocutory orders
The court can issue injunction to restrain such act or causing injury to the plaintiff, till further orders, if the property in dispute in the suit is in danger of being wasted, damaged or alienated by a party to the suit or wrongly sold in execution of a decree (Order XXXIX Rule 1 of the CPC).
The court must order notice to the other party before injunction unless the injunction will be defeated by the delay. The court must dispose of injunction within 30 days.
In case the defendant threatens to dispose of his property to defraud his creditors or if the defendant threatens the plaintiff to dispossess the plaintiff or cause injury to the plaintiff in regard to a disputed property, the court can issue injunction till the disposal of the suit.
If anyone causes disobedience or breach of injunction he may be detained in civil prison and his property will be subjected to attachment.
Incidental proceedings differ from supplemental proceedings
The Incidental Proceedings referred to in Part III of the CPC and Supplemental Proceedings referred to in Part VI are quite different.
The Parliament consciously used two different expressions ‘incidental proceedings’ and ‘supplemental proceedings’ which would carry two different meanings.
The incidental proceedings are in aid to the final proceedings. In other words an order passed in the incidental proceedings will have a direct bearing on the result of the suit. Such proceedings which are in aid of the final proceedings are different from the ‘supplemental proceedings’ which have nothing much to do with the suit’s end result.
The expression ‘supplementary proceeding’ on the other hand, would mean a separate proceeding in an original suit in which action is pending in a court and is called upon to exercise its jurisdiction in the interest of justice.
Supplemental proceedings
To prevent defeating the ends of justice the court, when it is so stipulated, can take the following actions: –
- The court can issue a warrant to arrest the defendant and to bring him before the court to explain the reasons for not giving security for his appearance. If he fails to comply with the direction the court can commit him to the civil prison
- It can direct the defendant to furnish security to produce any of his property and to place it at the disposal of the court. It can order attachment of any property
- The court can grant temporary injunction and in case of disobedience commit him to the civil prison and order attachment of his property
- It can appoint a receiver of the property and enforce his duties by attachment and selling of the property, and
- It can make such other just and convenient interlocutory orders
Adjournment of hearing
The court can grant time to the parties or to adjourn the hearing of the suit at any stage of the suit for reasons to be recorded ( Order XVII Rule 1 of the CPC).
Such adjournments shall not be granted for more than three times to a party during hearing of the suit.
In every such adjournment the court shall fix a day for the further hearing of the suit. If such an adjournment causes any inconvenience to the other party the court should issue orders for payment of cost to the party.
If both the parties fail to appear on the day fixed for hearing the court can dispose of the suit on account of non- appearance of the parties.
Hearing of the suit
Normally the plaintiff has the right to begin the arguments on the day fixed for the hearing of the suit. The party shall state his case and produce his evidence in support of the issues which he is bound to prove. Then the other party should state his case and produce his evidence (Order XVIII Rule 1 of the CPC).
Written arguments can also be filed. Any party can, before he concludes his oral arguments, submit his written arguments, if the court permits it. A copy of the written arguments shall be furnished to the other party as well.
Pronouncing the Judgment
After hearing the final arguments, the court should pronounce its judgment in an open court ( Order XX Rule 1 of the CPC).
The court shall take every effort to pronounce the judgment in the open court at once or in a future day that shall fall within 30 days of the conclusion of the hearing. But it should not ordinarily go beyond 60 days. The parties and pleaders should be given notice of the day so fixed.
The judgment should include court’s decision on every issue framed earlier, with reasons thereof.
The judgment shall be dated and signed. When it is once signed it shall not be altered or added to except as provided in Section 152 of the CPC or in a review. A judge can pronounce the judgment written, but not pronounced, by his predecessor in office.
Decree follows the judgment
A judgment shall be followed by a decree. The decree declares the relief granted or other determination of the suit. It should state the amount of cost any party has to give to the other party. The decree should be in conformity with the judgment. It is capable of execution ( Order XX Rule 6 of the CPC).
A decree can be either preliminary or final. A preliminary decree declares the rights and liabilities of the parties in the disputed issue in principle. But the final decree determines what is to be practically done in regard to the rights of the parties in pursuance of the principles evolved in the preliminary decree.
If a decree is not drawn up within 15 days from the date of judgment, then the last paragraph of the judgment can be treated as the decree.
Execution of the decree
It is the decree, but not the judgment, that is put into action. It is done by a process called execution of the decree. A decree is executed by the court which passed it or by the court to which it is sent for execution (Order XXI Rule 1 of the CPC).
In the case of an appeal it is the court of first instance which has the power to execute the decree passed in an appeal.
A decree is sent for execution to another court:
- when the person against whom decree is passed resides or carries business in another place, or
- such person has property in other location, or
- for any other reason it is necessary for another court to execute it.
The court executing a decree, which is sent to it, has all the powers of the original court, which passed the decree, in the matter of execution. The executing court can punish any person disobeying or obstructing the execution of the decree. The decree can be executed against the legal representatives of the deceased judgment-debtor also. The executing court can attach the property belonging to the judgment-debtor.
All matters arising between the parties in execution shall be decided by the executing court. Once decree reached finality the judgment-debtor cannot plead fresh facts in the execution petition. The executing court cannot travel beyond the decree under execution. The execution cannot be refused when the decree itself is not a nullity.
The execution of the decree is enforced by delivery, attachment or sale of any property (some specified items cannot be attached), by arrest and detention of the judgment-debtor (a woman cannot be arrested) in civil prison for a period not exceeding three months, by appointing a receiver or any other suitable means.
Further reading
- The Code of Civil Procedure, 1908
- C K Takwani: Civil Procedure with Limitation Act, 1963. Lucknow, Eastern Book Co, 2015
- Civil Rules of Practice, Kerala
