Institution of Suits and Court Procedures
Institution of Suits:
Particulars in plaint, when a court can return or reject a plaint? Sec 26{1} every suit shall be instituted by the presentation of a plaint or in such manner as may be prescribed by sec 26{2}in every plaint facts shall be proved by affidavit.
Particulars to be contained in plaint:
- The name of the court in which the suit is brought
- The name description and place of residence of plaintiff
- A statement of his value of the subject matter of the suit for the purpose of jurisdiction and of court fees
- Same details of the defendant
- The fact constituting the cause of action and when it arises
- The relief which the plaintiff claims
- A statement of the value of the subject matter of the suit for the purpose of jurisdiction and of court fees
Sita Sidramappa v Rajacheery it was held that if no claim for mesne profits at a rate higher than what is stated in the plaint.
Return of the Plaint:
If the court has no jurisdiction, it has to return the plaint to be presented to the court in which the suit should have been instituted. In all cases where a court is unable to entertain the suit for want of jurisdiction – territorial, pecuniary or other causes, the court has to return the plaint. The court can return the plaint at any stage of the case (even at the stage of argument).
Rejection of the Plaint:
In the following cases:
- If it doesn’t disclose a cause of action
- If it is not filed in duplicate
- If the relief claimed is undervalued and the plaintiff, on being required by court to correct the valuation within a time to be fixed by court, fails to do so
- If the plaint is insufficiently stamped paper and the plaintiff, on being required by court to requisite stamp paper within a time to fixed by court
- If the plaint fails to comply with provisions of rule 9
Representative Suit:
The general rule is that all persons interested in a suit ought to be joined as parties to it, so that the matters involved therein may be finally adjudicated upon and fresh litigations over the same matters may be avoided. Rule 8 is an exception to this general principle. It provides that when there are a number of persons similarly interested in a suit, one or more of them can, with the permission of court upon a direction from the court to sue or to be sued on behalf of themselves and others.
Substituted Service:
By sec 27 order V rule 1 of code, if a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim of the plaintiff and to file the written statement of his defence if any within 30 days from the date of service of summons on the defendant.
Types:
- Personal or Direct Service:
- Substituted Service (Service by Affixure and Advertisement in Newspaper):
- Service by Post (Rules 19-A):
Substituted service as per the order of the court shall be as effective as personal service.
Substitution of Letter for Summons (Rule 30):
By rule 30 court may substitute for a summons a letter signed by the judge or such officer as he may appoint in his behalf where the defendant is in the opinion of court, of a rank entitling him to such mark of consideration. A letter substituted shall contain all the particulars required to be stated in a summons and it shall be treated in all respects as a summons, a letter so substituted may be sent to the defendant by post or by special messenger selected by the court.
Written Statement:
Order VIII deals with written statement, when a suit is filed by a presentation of a plaint, the court may issue summons to the defendant calling upon him to appear on a day specified in the summons and answer the claim of plaintiff. The defendant shall within 30 days from the date of service of summons of him, present a written statement of his defence. If the defendant of his defence fails to file the written statement within the said period of 30 days, the court may, after recording reason in writing, allow him to file the same on such other day, but which shall not less than 90 days from the date of summons.
Kailash vs Nanhku 22005: SC held that the trial court can extend time to file written statement beyond the prescribed period of 90 days for valid and sufficient reasons.
The written statement shall be signed by the party and his pleader. It shall only contain a statement in concise form of material facts on which the defendant relies for his defence. The person verifying written statement shall also furnish an affidavit in support of his pleading.
Plea of Set-Off:
When the plaintiff files a suit for recovery of money, the defendant can claim set off as a defence in his written statement in respect of some amount which the plaintiff owes to him. The right of defendant to claim legal set off has been registered under Order VIII Rule 6. It avoids the necessity of filing a fresh suit by the defendant.
Conditions to claim legal set off:
- Suit must be for the recovery of money
- The claim of set off must be for an ascertained sum of money
- Such sum must be legally recoverable
- Must be recoverable by defendant
- Must be recoverable by the defendant from plaintiff
Equitable of Set Off: Order 20, Rule 19 (3) code recognises an equitable set off. Thus in a suit by a washerman for his wages, the defendant employer may set off the price of the clothes lost by the plaintiff.
Plea of Counter Claim: It is a claim made by the defendant in a suit against the plaintiff. The defendant in suit may, in addition to his right to plead a set off, set up a counter claim. It may be set up only in respect of a claim for which the defendant can file a separate suit. Thus a counter claim is substantially a cross suit. The counter claim of the defendant will be treated as a plaint and the plaintiff has a right to file a written statement in answer to the counter claim of the defendant.
General Rules of Pleading:
Order 6
- Pleadings should state facts and not law
- The facts stated should be material facts
- Pleadings should not state the evidence
- The facts should be stated in a concise form. It must be divided into paragraphs, every allegation should be contained in a separate paragraph.
Haris v Mallan it was held that in all cases which the party pleading relies on undue influence particulars with dates and items should be stated.
Amend the Pleading:
- Whether the amendment is necessary for the determination of the real question is necessary
- Can the amendment be allowed without injustice to the other side
Haridas v Pillai the court held that the amendment can be allowed if it can be made without injustice to the other side.
Appearance and Non-Appearance of Parties (Ex Parte Decree):
Order IX
Rule 1 requires the parties to the suit to attend the court in person or by their pleaders on the day fixed in the summons for the defendant to appear and answer the claim of the plaintiff rule 2
If on the days fixed it is found that the summons have not been served upon the defendant in consequence of failure of the plaintiff to pay the court fee or postal charges chargeable for such service. If neither the plaintiff nor the defendant appears when the suit is called on for hearing the court may dismiss it. Haridas v Madhavi Amma
Remedies in case of ex parte decree:
- Defendant can apply to the court by which such decree is passed to set it aside, he can prefer an appeal against such decree sec96, he can apply for review, he can file a suit to set aside the ex parte decree on the ground of fraud.
- GP Srivastva v RK Riazada Aggrieved can appeal
- Review sec114 order 47 rule 1 it is to be noted that a review application is to filed before filing an appeal against ex parte decree.
- Suit it is to set aside an ex parte decree is normally maintainable.
Discovery & Inspection:
Order XI
The right of a party to the suit to compel the opposite party to disclose the nature of his case and all documents in his possession or power relevant to the issue in the suit is called discovery. 1. Discovery by Interrogatories: If a party to the suit requires information as to facts he can put a series of questions in writing to the adversary, these questions are called interrogatories. 2. Discovery by Documents. If a party to a suit requires information as to documents relevant to the suit he may apply to the court for an order compelling the other party to make a list of relevant documents in his possession or power and for permission to inspect and take copies.
Settlement of Issues/Framing of Issues:
Order XIV at first the hearing of the suit the court shall after reading the plaint written statement and after hearing the parties or their pleaders ascertain upon what material proposition of fact or of law the parties are at variance and shall thereupon frame and record the issues. 2 kinds of issues issues of fact and issues of law. The court has to pronounce judgment on all issues even if a case may be disposed of on a preliminary issue. The court may at any time before passing a decree amend the issues or frame additional issues for determining the matters in controversy.
Hearing of the Suit:
Order 17 deals with hearing of the suit and examination of witness. After the framing of issues the court will fix a day for hearing of the suit. On the date fixed for the hearing of the suit both the plaintiff and defendant can adduce evidence in support of their case. The plaintiff has the right to begin. If the defendant admits the fact alleged by the plaintiff and contents that either in point of law or on some additional fact alleged by the defendant the plaintiff is not entitled to relief which he seeks, he shall have the right to begin. On the date of hearing the party who has to begin shall state his case and adduce his evidence in support of the issue which he is bound to prove. The other party shall then state his case and produce his evidence.
Judgement:
Sec2(9) defines the judgment means the statement given by the judge on the grounds of decree or order and he is also the presiding officer of the civil court. The court shall After the case has been heard pronounce the judgment in open court at once or on some future day. If the judgment is not pronounced at once every endeavour shall be made by the court to pronounce the judgment within 15 days from the date of hearing of the case was concluded. If it is not practicable the court shall fix a future day of the pronouncement of the judgment and such day shall not beyond 30 days on the date on which the hearing of the case was concluded. A judgment shall contain a concise statement of the case, the point or determination or the reason for such decision. The judgment shall be dated and signed by the judge in open court at the time of pronouncing it.
Decree:
Sec2(2) the court which pronounce a judgment shall draw up a decree within 15 days from the date in which judgment is pronounced. Decree means the formal expression of a adjudicator which, so far as regards the court or expressing it, conclusively determines the rights of the parties with regard to whole or any of the matters in controversy in the suit and maybe either preliminary and final. It shall be deemed to include rejection of the plaint and the determination of the any question within sec144 but shall not include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default.
Essential elements of decree:
- Adjudication: the matter in issue must be heard and decided by the court
- There must be formal expression of such adjudication
- Suit: such adjudication must have been given in suit
- Determination of rights of parties in controversy
- Conclusive determination
- A decree be preliminary or final
- Appealable orders
- Dismissal for default
Order:
Sec2(14) order means the formal expression of any decision of a civil court which is not a decree. An order may originate from a suit from the presentation of plaintiff