Institution of a Suit under the Civil Procedure Code, 1908: The First Stage of a Civil Proceeding

This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. This article focuses primarily on how a civil suit can be instituted under the procedural laws of Civil Procedure Code, 1908 (hereinafter as CPC, 1908). The article lays down a general pattern of a general civil suit and deals with the provisions related to the same under CPC, 1908.

Suit: Meaning

The term ‘suit’ has not been defined in the CPC, 1908. Generally, it is understood as a proceeding that commences upon the presentation of a plaint in a civil court. A plaint is a statement in writing of a cause of action in which the relief claimed is set out in detail. The Black’s Law Dictionary defines a suit as the proceeding initiated by a party or parties against another in the court of law.

Ordinarily, there appears a minute difference between the suits filed under the CPC, 1908 and the other suits filed under various legislative enactments. The suit filed under CPC, 1908 has a particular format and it is a civil proceeding instituted by presenting a plaint whereas in other suits e.g. matrimonial are generally instituted by presentation of a petition by either party to the suit.

Provisions regarding institution of a suit are specified under Section 26 and Orders I, II, IV, VI, VII.

Essentials of a Suit

There are four essentials of a suit which are explained as follows:

Parties (Order I)

In a suit, there must be at least two parties i.e. the plaintiff and the defendant. There is no bar as to the maximum numbers of plaintiffs or defendants. There are two categories of parties viz. necessary party and proper party. The significance of the necessary party in a suit is that the presence of such a party is vital to the constitution of the suit and the relief is sought against such party and without such party, no effective order can be passed. A proper party is one in whose absence an effective order can be passed, nonetheless whose presence is necessary for a complete and final decision on the question involved in the proceeding.

Subject Matter

There must be a subject matter i.e. a set of facts which have to be proved to enable the plaintiff to get the relief claimed by him. It includes the course of action. The subject-matter can be movable as well as immovable property and the details regarding the same has to be given in the plaint by the plaintiff for a successful filing of his plaint and getting the relief claimed in the plaint.

Cause of Action (Order II, Rules 3, 6 and 7)

It contains a set of facts or circumstances that the plaintiff is required to prove before he can succeed. It serves as the foundation of the suit. It includes all the essential facts which constitutes the right of a plaintiff and its alleged infringement and thus it is an antecedent to the filing or institution of any suit. The facts must be mentioned in clear and unambiguous terms. A person is a party to the suit if there lies a cause of action against him. It is important to note that every plaint must disclose a cause of action or some act done by the defendant else the Court is under a duty to reject such a plaint as per Order 7, Rule 11.

Relief claimed by the plaintiff

Relief is a remedy in legal sense for wrong accrued to the plaintiff. No court will give relief unless it is specifically claimed by the parties to the suit. There are two types of reliefs: Specific and Alternative.

Institution of a Suit under CPC, 1908

There are various stages of a suit viz. institution of suit or commencement of suit, service of summons, written statements, first hearing and framing of issues, production of evidence and final hearing, arguments, judgment, preparation of a decree and its execution. The focus of this article is to deal with the first stage i.e. Institution of a suit. The institution of a suit consists of the following steps:

Filing of a plaint

It is noteworthy that the term plaint is not defined under CPC, 1908. According to the dictionary meaning, plaint is a statement in writing on grounds of complaint made to a court of law and asking for redress of the grievance. Order VII deals with the format of a plaint and contains various rules.

Pleadings are defined as pleadings as “a plaint or a written statement” in Order VI Rule I of the CPC, 1908. Plaint is the first step to initiate the filing of a suit. The document containing various facts and circumstances regarding the Plaintiff’s grievance is filed by the plaintiff after hiring a counsel and such a document is called a plaint.

Amendment of Proceedings

The Court may, at any stage of the proceedings, allow either party to alter or amend its pleadings in such manner and on such terms as may be just (Rule 17 of Order VI of CPC, 1908), and all such amendments shall be made when it is necessary for determination of real question in controversy or is just and proper or is necessary in the interest of justice.

Place of suing

The place of suing plays a major role in a suit as it directly deals with the authority of a court to pass a decree. Choosing a court depends upon the contents of plaint one is filing. It refers to the jurisdictional aspect. Section 9 of CPC, 1908 provides that the Courts shall have jurisdiction to try all suits of a civil nature except in suits of which their cognizance is either expressly or impliedly barred. The jurisdiction of a court is decided by the legislature and the parties to a suit, by the framing of the plaint, cannot interfere into the extent of this jurisdiction. But the parties can choose a court amongst various courts if they have the same jurisdiction. In Mt. Ananti vs Chhannu And Ors AIR 1930 All 193, the Court held:

“The Plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts, he will get his relief from the forum chosen.”

Section 15 of Civil Procedure Code provides that every suit shall be instituted in the Court of the lowest grade competent to try it. On the filing of the suit, the Court must ascertain whether it has jurisdiction to entertain it. In cases where the jurisdiction is challenged by filing a petition by the defendant(s) to reject the plaint under Order VII Rule 11 CPC. The want of jurisdiction is merely an irregularity of the proceedings and the Court has the power to rectify it.

Presentation of the plaint: When the suit commences?

The moment the plaint is filed it leads to the institution of the suit as it is provided in Section 26 of CPC, 1908 provides that every suit under shall be instituted by the presentation of a plaint or in such other manner as may be prescribed and the contents of such plaint shall be proved by an affidavit as per the amendment of 2002. Thus, a plaint is rightly filed by complying with the provisions of Order IV Rule 1 of CPC, 1908. The plaint may be presented either by the affected person himself, or by his advocate or by his recognised agent or by any person duly authorised by him.

Time and Place of Presentation

Ordinarily, the presentation of a plaint must be on a working day and during the office hours. But there is no rule regarding it be made either at a particular place or time. A judge, therefore, may accept a plaint at his residence or any other place even after office hours, though he is not bound to accept it. If not too convenient, the judge must accept the plaint, if it is the last day of limitation.

Registration of Suits

Rule 2 of Order IV provides that the Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the Register of civil suits after the Court fees have been paid correctly in the Court having pecuniary Pecuniary jurisdiction specifies the monetary jurisdiction of the Court and divides the Courts on a vertical basis. It is different for different district Courts in various states e.g. Currently, the pecuniary jurisdiction of the Delhi courts is · Suits amounting to Rs.1 – Rs.20, 00,000 and territorial jurisdiction. Territorial jurisdiction deals with the area wise jurisdiction of various courts which is decided by taking numerous factors into consideration.

Such entries shall be numbered in every year according to the order in which the plaints are admitted. Thus, after the presentation, the suit will be numbered along with being scrutinised by the Stamp Reporter.

Once all these steps have been taken care of, a suit is successfully instituted before a Civil Court.

NOTE: A suit will only be instituted successfully if it is not hit by the provisions of Res Sub Judice i.e. the matter is pending before a court already who is capable of executing a award which is asked for in new plaint OR else it is not hit by Res Judicata i.e. the matter has been already decided by a Court in a case involving the same parties in the same cause of action.

CONCLUSION

The journey of a suit from filing of plaint to its institution in the court is dependent on numerous factors. All these conditions are provided in the CPC,1908 in a proper procedural framework. Such procedural formalities point out to the exclusivity of CPC, 1908 and due to these, delays are caused in both institution of a suit and passing of a decree in civil suits. The legislators certainly realised this and therefore, there is a provision in CPC, 1908 under Section 89 which provides for the settlement of certain disputes outside the Court through conciliation, arbitration, judicial settlement including settlement through Lok Adalat and mediation. Also, under Order XXXVII there is a provision for Summary Suits which provide quick and efficacious relief. This has certainly led to settlement of disputes through Courts as well as Alternate Dispute Resolution Mechanism which is currently in vogue in India.

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