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 details, governing the presentation of a plaint, are included in Order VI and VII of the Code of Civil Procedure, 1908(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 is instituted, 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, each containing a separate allegation, 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 which paragraphs he verifies based on his own knowledge and which paragraphs he verifies based on the information he has 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.
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 affidavit 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 the court’s permission, he cannot sue in respect of those claims later. The suit shall be framed in a manner that it affords ground for conclusive decision of the 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 is 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, under Order III Rule 1, Order III Rule 2 and Order III Rule 4 of the CPC respectively.
The party to the suit shall appear in person if the court so directs. Recognized agents are the persons holding power of attorney authorized by the party to the suit, to appear and do those things specified in the power of attorney or, on behalf of the party.
A pleader needs to file a Vakalathnama
No pleader can appear on behalf of a party unless he is duly appointed for the purpose by filing a duly signed document, a Vakalatnama, 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, under Rule 22 of the Civil Rules of Practice, Kerala.
However, a pleader can ask another pleader to represent a suit he conducts, in his absence, under Order III Rule 4 of the CPC.
Rejection of Plaint for having no cause of action
Further, the court may reject a plaint if it does not disclose a cause of action, the relief claimed is undervalued, the plaint is insufficiently stamped, the plaint is barred by law or the plaint is not filed in duplicate etc, under Order VII Rule 11 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 defense (Order V Rule 1 of the CPC).
When the court issues orders for service of summons on admitting a plaint, 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 under 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 under Order V Rule 9 or and 9A 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 under Order V Rule 2 of 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, through any court if the defendant resides within its area, or by foreign mail service.
The court can permit the defendant to effect service of summons on the plaintiff for his appearance. The person served with summons will have to sign as acknowledgement of receipt thereof.
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 where 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 in substitution of service of summons. The defendant will have to appear before the court as the summons stipulates, under Order V Rule 30 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, under Order V Rule 1 of the CPC.
The court shall order the defendant and plaintiff to appear in person, if the court finds sufficient 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 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.
Defendant needs to file a Written Statement
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 under Order VIII Rule 1 of the CPC. Supreme Court in Desh Raj v. Balkishan (2020), a three Judge Bench has clarified that as regard the timeline for filing of written statement in a noncommercial dispute, the observations of this Court in a catena of decisions, most recently in Atcom Technologies Ltd. v. Y.A. Chunawala and Co., holds the field. Unamended Order VIII Rule I, CPC continues to be directory and does not do away with the inherent discretion of Courts to condone delay
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 little 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 but the court must be satisfied that the facts in the plaint justify the decree before doing so.
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 raises will work in the nature of a plaint in a cross-suit under Order VIII Rule 6 of the CPC.
The court then will have to pronounce its judgment both in the original plaint and the counter claim put forth by the defendant. 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 6A to 6G 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 of each of them, along with the written statement if such documents are in his possession.
If they are not in his possession, he shall state 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, under Order IX Rule 2 of the CPC. Order IX Rule 3 deals with dismissal when neither party appears.
When 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 with the reasons for non-attendance or a fresh a suit can be instituted, under Order IX Rule 4 of the CPC.
When plaintiff alone appears
If the plaintiff alone appears the court can order that the suit be heard ex parte, if the summons has been duly served under Order IX Rule 6 of the CPC. If the defendant appears on the adjourned day and shows sufficient cause for previous non-appearance, he can be allowed to take part in the proceedings on paying cost or as directed by the court, under Order IX Rule 7 of the CPC.
When defendant alone appears
If defendant alone appears the court can dismiss the suit under Order IX Rule 8 of the CPC. The plaintiff is precluded from bringing a fresh suit following such dismissal but he can apply for setting the dismissal aside, under Order IX Rule 9 of the CPC).
An 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 by showing sufficient cause for non-appearance and by serving due notice to the other party, under (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 fact made in the pleadings. At the first hearing the court shall examine the parties and the persons accompanying parties who can answer material questions orally, under Order X Rule 1 of the CPC.
After recording the admissions and denials at the first hearing, if the court finds any possibility of a 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 of the examination shall 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 fails to appear on the day, under 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 admissions 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 within 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 vexatious interrogatories can be objected to by the other party on an application filed within 7 days of service. The court can strike 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 or power relating to the disputed matter, under Order XI of the CPC.
On hearing the application, the court will refuse or allow the application specifying the classes of documents.
The party in possession of the document can object to the production of the document. The court can then order production of such a document.
Inspection of documents by the other party
A party can give notice to the other party to produce for inspection 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 the next three days. If he refuses to comply with the notice, he cannot use that document in evidence. The court can refuse such an 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 files 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 fact has been made in the pleadings or in any other form – either orally or in writing – the court can make a judgment on those admissions. The court can then draw up a decree thereon, under 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 memory of a witnesse, under 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 signature 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 pronounced in the appeal of the suit or the time for filing the appeal has elapsed, under 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 instituted to settle some dispute put forth by one party and denied by the other. It may be either an issue of fact or an issue of law, under Order XIV Rule 1 of the CPC.
On reading the plaint, the written statement and hearing the parties, the court shall determine the issues of facts or issues of law on which the parties are in dispute.
The court may pronounce judgment and pass a decree on every issue of fact or issue of law after reading the pleadings, examining the witnesses and hearing the parties, under Order XX.
Disposal of the suit at the first hearing
At the first hearing of a suit if the court thinks that the parties are not in dispute 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 or 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 result in injustice.
If the finding 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 for them, under Order XVI Rule 1 of the CPC.
The parties shall have to bear the expense of serving the summons and pay the requisite charges 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 a party to the suit 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, under Order XVI Rule 2 of the CPC.
Every summons shall state the time, place, and purpose of attendance of the witness. The summons to a witness may be either to give evidence or to produce any document. If the person, without lawful excuse, fails to attend or to produce the 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 the witness appears attachment may be withdrawn. The court can sell his attached property too, under Order XVI Rule 5 of the CPC.
Even without summons a party can bring a witness to give evidence or to produce documents. The court can examine not only witnesses but also any person whom it thinks necessary to examine.
Evidence of parties taken by the court / commissioner
The examination-in-chief of a witness shall be on 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 re-examination of the witnesses 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 demeanour of any witness.
When any question put to a person is objected to by the other party, the court can allow or disallow it on merits. 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, but courts can and do fix different time periods in the commission order itself under Order XXVI Rule 14 of the CPC.
When a witness has to leave the court’s jurisdiction the court can take evidence any time after the institution of the suit when a party 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 purposes.
The party seeking commission has to pay such amount as ordered by the court towards the costs of the commission of the commission, under Order XXVI Rule 1 of the CPC.
The Commissioner thus appointed can examine the parties to the suit, 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 Code of Civil Procedure 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 an injunction to restrain any 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, under Order XXXIX Rule 1 of the CPC.
The court must order notice to the other party before granting an injunction unless the injunction will be defeated by such delay. The court must dispose of the injunction application within 30 days.
In case the defendant threatens to dispose of his property to defraud his creditors or if the defendant threatens to dispossess the plaintiff or cause injury to the plaintiff in regard to a disputed property, the court can issue an injunction till the disposal of the suit.
If anyone causes disobedience or breach of the 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.
Incidental proceedings
The incidental proceedings are in aid of 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 outcome of the suit.
The expression supplemental 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, in appropriate cases, 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 sale 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 adjourn the hearing of the suit at any stage of the suit for reasons to be recorded, under Order XVII Rule 1 of the CPC.
Such adjournments shall not be granted 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 costs 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 make every effort to pronounce the judgment in the open court at once or on 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 the court’s decision on every issue framed earlier, with reasons therefor.
The judgment shall be dated and signed. After it is 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. This provision is correct and is found in Order XX Rule 2 of the CPC.
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 costs any party has to give to the other party. The decree, capable of execution, should be in conformity with the judgment, under Order XX Rule 6 (1) of the CPC.
A decree can be either preliminary decree or final decree. A preliminary decree declares the rights and liabilities of the parties in the disputed issue leaving the final determination of the reliefs for a subsequent decree. But the final decree determines what is to be done in pursuance of rights declared in the preliminary decree.
If a decree is not drawn up within 15 days from the date of judgment, then the last portion 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, under Order XXI Rules 1 to 106 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, but only after the decree is transmitted to it. This is governed by Section 38 and Order XXI Rule 6 of the CPC.
A decree is sent for execution to another court:
- when the person against whom decree is passed resides or carries on business in another place,
- such person has property at another place,
- 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 the decree reaches 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 executing court’s limited jurisdiction — it cannot go behind the decree — is well established in Dhulabhai v. State of MP (1968 SC) and Vasudevan v. Krishnan decided by the Kerala High Court.
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 in civil prison for a period not exceeding three months, by appointing a receiver or any other suitable means.
Under Order XXI Rule 40, a woman cannot be arrested in execution of a money decree; however, in other execution contexts such as decrees for specific performance or injunction, the position may differ.
