Civil suit process under civil Judicature

As early as in the 17th century, the English people introduced into India the mass of their own legal rules strictly known as “common law ‘’ to establish, maintain and develop the judicial system of our country. Those days the judicial administration of England is applied mainly to British Subjects in some parts of our country popularly known as “Company Territories”. After the attainment of independence and the adoption of the constitution of India, the concept, structure, and organization of court, the substantive and procedural law, the function of judge and lawyers rooted in common law traditions remained unaltered.

Introduction:

Uniform civil procedure code first came into existence in the Republic of India in 1859 followed by amendments and revisions in 1877, 1882 until it reached the present form of ‘’code of civil procedure 1908.’’Though it is known as ‘’code of civil procedure 1908’’ it came into force in 1909 and amendments were followed until 2019. The object of code was the consolidation of procedural laws that civil judicature needs to follow to facilitate justice based on ‘’equity’’.

Though Civil Procedure is applicable all over India, those who do not know the regional language cannot practice civil law because the matters that cover under civil court contain the local laws too. For instance, land laws, license laws, tenancy laws, etc. vary from state to state, and tenancy agreements or other agreements related to the land can also be written in regional language.

In a nutshell, the scheme of code of civil procedure contains 158 sections and 51 orders, sections dealing with fundamental principles and laws to create jurisdiction whereas orders deal with how the civil court shall exercise its jurisdiction/authority.

Civil suit process:

A civil suit is litigation between two or more parties that can involve subject matter like money transactions (Negotiable instruments), property disputes, tortious liability, contractual disputes, etc. The simple explanation of civil suit is that “it is the suit for compensation for the wrong done to the other. Depending on the nature of the subject matter, the dispute can differentiate into civil and criminal.

In civil suits, the first part is pre-trial or negotiation, for pretrial or negotiation starts only after sending the notice to the party whoever is concerned. Usually, notices are sent by registered post or as prescribed by law. Except notices prescribed under CPC and specific public notices used at the govt level, there are no hard and fast rules about forms of notice. After receiving the notice, if the party is ready to settle the matter, a settlement is possible through negotiation, if the addressee is refusing the notice after it was tendered to him raises the presumption of due service.

Trial stage: Order II, Order V, and Order VII of CPC.

In the trial stage, the party has to sign the vakalat of the advocate who’s representing him. Then advocate will file a plaint or claim depending on the valuation of the suit under Order VII Rule 1 to the court of jurisdiction where the claimant or the defendant permanently resides, or at the jurisdiction of the court where the cause of action arises. Court fee shall depend on the valuation of the suit, and shall the plaint signed by the plaintiff as well as the legal representative.

Every plant, the facts shall be proved by the affidavit prescribed under order VI rule 15 A of CPC and shall contain the relief claimed for or any alternative relief under Rule 7 of Order VII to mitigate the loss for the wrong done. Rule 9 order VII the plaint shall contain the annexed list of documents if any to prove the claim.

If plaint admitted, within the time prescribed by the court copies of the plaint as required along with a concise statement of documents that are going to produce will be submitted to the ministerial court officer. When the suit is instituted correctly as above, the court will issue summons to the defendant address as prescribed in the plaint. Under Rule 2 Order V, every summons shall contain a copy of the plaint. Under Rule 5 Order V, the court shall determine at the time of issuing the summons whether it shall be the settlement of the issue or final disposal of the suit, it shall direct the same accordingly.

A plaint can return at any stage of the suit on the ground of lack of jurisdiction, in that case, the judicial officer will endorse on it the date of presentation and return of plaint along with brief reasons to return it. When plaint returned, it shall not be necessary to reissue the summons by the court in which it presents unless otherwise direct, because the intimation to both the parties of return of plaint by the returning court shall be treated as the summons to appear before the court which it is present.

Under Rule 11 Order VII Rejection of plaint shall be for the following reasons

• If the cause of action not correctly stated in the plaint

• The relief claimed by the plaintiff is undervalued and failed to correct it within the time prescribed by the Court.

• where the relief claimed is properly valued, but plaint presented on insufficient stamp paper and even after being ordered to correct it, failed to do so

• where the suit appears to be barred by any existing law.

Roopal sathi vs.Sing 1982 3SCC 487.

Rejection of plaint means that the denial in whole and not a portion of it. Refusal on the above grounds does not bar the plaintiff from instituting a new suit.

The written statement set off and counterclaim

Under order VIII Rule1 written statement shall be submitted by the defendant within 30 days from the date of service of summons, and if the defendant relied upon any documents to prove his counterclaim or set off, the list of those documents must be annexed with it. The amount claims as set-off by the defendant must state clearly in the written statement, and each allegation in the plaint must be dealt with specifically by the defendant. Any assertion that is not deal with specifically by the defendant will treat as an admission of the same.

If the defendant does not file the written statement, the court can make a decision based on the plaint, if the court insists the defendant to file the written statement and failed to do so, the court can decide against the defendant. If the defendant does not appear, on the date of the summons as issued by the court, then the court will issue an ex-parte.

Under rule 2 order IX if the summons is not issued to the defendant, by the court due to the failure of payment of court fee by the plaintiff, then the court can dismiss the case. Under rule 3 order IX, if both the parties have not appeared before the court on the date as issued by summons, then the court can dismiss the case.

In the above circumstances, a new suit can institute by giving an application for setting aside the order of dismissal. If the court is satisfied that the reasons for the non-appearance of the parties are genuine, then the court can set aside the order for dismissal and appoint a new date for proceeding with the suit.

Replication / Rejoinder:

Replication is the reply to the written statement of the defendant. If the defendant includes a counterclaim in his written statement, then, it will treat as a plaint, and the plaintiff will file a written statement against the counterclaim.

Amit Khera vs Ashwani Kumar Gupta & Anr on 23 December 2015

Replication is not to be permitted to be filed ordinarily, much less in routine. Replication is permissible only in three situations: (1) when required by law; (2) when a counterclaim is raised by the defendant; (3)when the Court directs' or permits a replication filed

Production of Documents:

In this stage, both parties have to submit documents that are in their possession to prove their claims and denials. If the parties rely upon the documents which are not in control of parties, will apply by paying the fee/cost to the court to issue summons to that party or authority to produce such a document before the court.

It notes that any document that is not mentioned in the list and any new forms shall not be accepted as evidence by the court at the time of production of proof unless it is specifically allowed by the court.

• If the documents are admitted by the court without objection, then it shall become part of the court record, and the details of parties, the title of the suit shall inscribe on it.

• In case of rejection of documents, that will return to the respective parties.

• Material evidence rejected by the opposite party can be made permissible by presenting the witnesses by the party whose documents/evidence denied.

• Certified copies of documents are also admissible evidence presumed that their contents proved.

The court may at any stage of the suit reject an inadmissible or irrelevant document by stating the grounds of the same.

Framing the issues:

It is the primary duty of the court to frame the issues under Order 14 rule 5 of CPC and give notice to the parties to lead evidence concerning the issues framed. Rule 5 of Order 14 empowers the court to amend or prepare additional issues at any stage of the proceeding. The distinct issue will form only when a material proposition is affirmed by one party and denied by the other. If the defendant does not make any defense, there is no need of making issues and record the same. The court can give judgment in the first hearing if the defendant has made no defense.

Evidence and cross-examination of parties:

If the allegations are not denied by the defendant then the right to begin is with the plaintiff, he/ she present before the court state his case and cross-examined by the defendant lawyer. And any witness is there to support his/ her claim they too shall be cross-examined by the defendant lawyer. If the defendant, denied then the right to begin is vested with the defendant and if any witnesses are present also shall be cross-examined by the plaintiff lawyer.

Final Argument:

Completion of submission of evidence and cross-examination, both the parties are allowed to submit their summary of the case along with evidence before the judge at the final hearing.

Judgment/Decree:

After the final argument, the court will pronounce the judgment either on the same day or within 15 days from the date of the final argument. If the court does not pronounce the ruling within 30 days, then the reasons for the delay needs to be recorded. The judgment contains decisions taken by the court on all issues framed and includes the set-off, menus profits, or any other claims to be made to either of the parties. The judgment must be dated signed and sealed by the judge and shall give to both parties.

The person to whose favor the judgment is passed, known as decree-holder and against whom it is known as a judgment debtor.

The appeal of Judgment:

An appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

An appeal may lie from an original decree passed ex parte.

By paying the security cost, a memorandum stating the grounds of the objection shall file in the appellate court within 30 days from the date of the decree. The court may at its discretion either accept or reject or can even return it for modification by the appellant. If the court agrees with the appeal, then it shall send a notice to the court which passed the decree, so that, that court can dispatch the records of the relevant case to the appellate court. Then the appellate court shall issue notices to the parties for the date of hearing and rehear the case. The appellate court has the power to confirm, vary, or reverse the original decree in its judgment.

Execution of Decree:

A decree usually executed by the Court passed it, or on an application made by the decree-holder, by the Court to which it sent for execution. If the decree is for payment of money, the amount made outside the Court, then the evidence needs to present before the Court. Suppose he failed to comply with the decree, the decree-holder may apply to the execution of the order, by requesting the Court to assist him by either delivering the property, arrest or detention of the person, or any other relief granted in the decree.

Author: Treasa Deepa N J

References:

1. The Code of Civil Procedure, 1908

2. https://www.lawnn.com/civil-suit-india/https://www.mondaq.com/images/article_images/654652b.jpg

3. https://www.mondaq.com/india/civil-law/654652/process-of-trial-of-civil-casessuits-in-india

4. http://www.bareactslive.com/ACA/ACT379.HTM Central Acts and Rules Amended and Updated