Procedure of Civil suit under C.P.C. 1908

 Hello everybody, today in this article you will learn about the procedure of civil suit.

The procedure of civil suit is governed by Code of civil procedure, 1908. It has 158 sections and 51 orders which all to-gather makes it a little bit hard to understand as mostly section and orders are inter connected to each other. 

This video will help you to understand these inter-relations and we will apply these sections, rules and orders in practical procedure that is prevalent in court of law. 

These are mainly 7 stages in civil suit  which is given below:

A- Cause of action between parties.

B- Institution of suit.

C- Framing of issues

D- Hearing and examination of witnesses

E- Decision: Judgement and decree

F- Appeal, Review and revision:

G-Execution

 

1- Cause of action between parties. 

There are two things, that we need to understand, first is cause of action and the other is parties. 

when we deal with cause of action, it is not defined any where in Civil procedure code. Although without cause of action there would be no suit. so it is necessary to understand it. Let us take an example to understand it in a proper way, Ex. if there are two parties, A and B. 

A has a right under a law and B objects/ violate/ restrict to the right of A. Now here we can say that a cause of action has arisen. In simple term, the existence of cause of action means that there is an existence of a substantive right and it is violated by other. once these two condition complete, we can say the cause of action has arisen. 

Now let us talk about Parties.The person who files a suit is called Plaintiff and the person against whom a suit is filed is called defendant. But to understand it in much more detail let us talk about some other persons who also comes under the heads of plaintiff and defendant. 

for example, 

If a person authorize another to file a suit, that person also come under the head of plaintiff

If any person who wants to file a suit is a minor then he can file a suit by next friend and if a minor against whom a suit is file he can be defended by his guardian, point which is important to note here is that no next friend is required to defend a suit, just guardian are sufficient. 

If a person who want to file a suit has no sufficient means to pay court fee, he can file an application to be considered as indigent person, where court require him to file suit even if he did not submit his required court fee etc.  And the suit is name as pauper suit. 

If there are numerous person who want to file a suit and it is impossible to consider them in person, any one person can file a suit on behalf of them, it is also known as representative suit. 

Suit can also be filed by or against government. And here government will be consider as plaintiff and defendant. 

suit by or against military or naval men or airmen

suit can be filed by or against corporation

suit can be filed by or againt firm, Business

suit can be filed by or against trustee, executive

Interpleader suit. It is important as it differs form other common suits. it is often known as suit between defendant and defendant. 

So, there are the different parties in the suit which came under the head of plaintiff and defendant. 

 

Now we know what is cause of action and we also knows who can be a party to the suit. Now to institute a suit, we must qualify the conditions of section -9 of Code of civil procedure, 1908. 

What are those condition, section-9 just talks about two important things:

1- Court shall try all suit of civil nature

2- Suit is not expressly or impliedly barred by any other law. 

So, In simple words, the suit should be of civil nature and no right to institute a suit should be provided by any other law. hence, by this you can understand that, if you have a right to institute a suit in any other law, other than CPC, then you should prefer that law and not institute suit in CPC. 

B- Institution of Suit:

This is the second stage of Civil suit. Section-26 and order-4 of civil procedure code talks about institution of Suit. 

Here one question that we have to answer is, How we can institute a suit? 

section -26 states, Suit shall be instituted by presentation of plaint and facts in every plaint to be proved by affidavit. 

Order-4 states, suit shall be instituted by presentation of plaint in duplicate and also comply the rules of order -6 and 7. 

so, in short, Suit shall be institute, when we present a plaint in court of law. and in that plaint facts to be proved by affidavit and the plaint should be filed in duplicate. 

why we need to file a plaint in duplicate is because when court sends summons to the defendants a copy of plaint is also to be send to the defendant with the summons, So that, defendant will be able to prepare his defense with respect to plaint.

As it is stated in Order -4 that there should be compliance of order -6, 7. Here it is essential to know that order 6 relates to pleadings and Pleadings include both Plaint and Written statement. Here Plaint is prepared by the plaintiff and written statement is prepared by the defendant as a defense. 

order -7 individually apply to Plaint, Rule -1 of Order-7 states that in Plaint there should be material facts only to be mentioned. And the court's time is very much essential one should not mention irrelevant facts in our plaint, it should be concise with material facts only. 

but the question should arise here is- what if court finds out that the facts that you have mentioned is not material or what if there is no cause of action stated in plaint, or what if plaint is not filed in duplicate or what if plaint is barred by any law?

the answer to all these question is, when the court finds that plaint in itself consist of these errors, the court shall reject the plaint as provided in Order 7 rule 11. And this rejection of plaint is considered as a Deemed decree of court under section 2(2) of CPC. As plaint is rejected not on merit of suit but due to error, decree is not just a decree it is deemed as decree. The Word deemed decree is not a decree in its own way but law deemed it by legal fiction to be a decree.

One thing that we have to understand is principle of resjudicata does not applies on the rejection of plaint, that means if a suit is rejected, a party can still file another plaint after correcting errors in his plaint. 

So for now, just to understand the procedure let us consider that, Plaint is without error and it is filed in the court. Now the court will issue summons to the defendant in order to allow him to defend himself. As per order -5 Rule 1 and Section 27, there are 30 days that is provided to the defendant to file his written statement. But what is the defendant does not files his written statement within 30 days? if this situation occur then court can increase such time period but shall not increase time more than 90 days

Let us now talk about a situation, What if defendant does not participate in a suit. what if Defendant does not appear in court? so in that situation court will consider whether summons are properly served or not and if court find that summons are properly served then court will consider that defendant willfully avoiding proceedings and in that situation court will pass ex- parte decree. ex- parte decree is a term, where court just after hearing plaintiff passes a decree without hearing defense. 

let us also understand it in detail, the question is what if a court has passes ex parte decree and after passing of exparte decree defendant arise and wanted to participate in suit, what will happen in that situation?

Here if defendant want to participate in a suit, he can only do it by setting aside exparte decree as per order 9 rule 13, where he has to state a reasonable reason for his absence and if the court found it reasonbale, the court will allow him to put his defense.

So, again just to understand the procedure, let us consider that Plaint and written statement is properly filed in court. Now What happens Next?

C- Framing of Issues (Order 14)

 As plaint contains facts alleging existence of right and written statement focus on disputing the said allegations. So, whenever this happens a dispute arise. The dispute arise form the fact that one party assert one thing and the other party assert some other thing. 

Here at this moment, court forms, what we calls, framing of issues in suit. These issues can be of fact or can be of law.

 Once issues are framed, now court goes on to issue summons to call witnesses (order 16 talk about summons to witnesses and Order 16A talks about witnesses in prison)

 

Under order 16 it is provides that once issues are framed, then within 15 days summons to be served to the witnesses. 

The court can also call a stranger to suit by summon to be a witness order 16 rule 14.

D- Hearing and examination of witnesses

Now once witnesses are called, then the court shall start hearing of suit and examination of witnesses under order 18 of CPC.  the court first examine the witness, then witness to be crosses by the opposite party and re- examined is necessary by the party who calls the witnesses. Then documentation to be submitted by the parties in the court. 

Once, parties, witnesses and documents are examined by the court, the court is free to form his opinion depending upon the evidence provided by the parties.

E- Decision: Judgement and decree

Judgement is defined in section 2(9) of CPC statement given by court on the ground of decree or order. 

Order is defined in Section 2(14) of CPC, talks about order, it means formal expression of any decision of a civil court which is not decree. 

Section-2(2) talks about decree and deemed decree (Rejection of plaint and application for restitution under section 144

 

F- Appeal, Review and revision:

Once a decree is made, the aggrieved party can appeal against the decree and it is generally called first appeal, it should be based upon question of law. one this which is important is that there is no appeal against consent decree

there is also another concept of second appeal which is filed to high court only, it mush be based on substantial question of law. the aggrieved party should made a memorandum in which he should mention the substantial question of law. 

But what if the party does not appeal or what if there is no provision for appeal? the answer is, Review. If there is no appeal made against a decree by the party or if there is no such provision of appeal is provided then party can file the review in the same court which passes the decree. 

And when we talk about revision, it is made by high court only, when a decision is made by the court which is subordinate to high court and in which no appeal lies. filing of revision is not the stay of the proceeding of lower court until high court by order stays it.

In revision the high court may call for the record of any case, where subordinate court has exercised a jurisdiction not vested in it, or where such court failed to exercise a jurisdiction so vested or where such court acted in the exercise of its jurisdiction illegally or with material irregularity.

G-Execution

Once the judgement is given and decree is passes. now the important thing is that a decree is to be executed. 

execution means giving effect to decree or to implement the decree. 

Now execution of a decree is not done by parties but by the court. And a decree can be executed by the court who passes a decree or by court to which a decree is transferred for execution. 

A decree can also be send to the court of another state and while execution the rules of that state shall apply. 

Now once a decree is transferred to a court and that court executed that decree or even if a decree is not executed, it shall be certified to the court which passes the decree about the fact that a decree is executed or not. 

one this that is important here is, if there are certain questions between parties regarding execution, discharge or satisfaction then these questions will be decided by executing court. 

The court can also enforce the execution by delivering of property, 

by attachment and sale or 

sale without attachment, 

by arrest and detention in prison

 Once, the execution of a decree is made, the procedure ends, and the work is finished.

Plaint in Civil Suit

INTRODUCTION:

Hello everyone, in this article we will understand about the role of plaint in civil suit. First of all we have to understand that civil suit is filed to get the remedy form the court of law for the violation of certain rights that has been provided by the statutes or law formed by the legislature. 

There are certain statutes that confer some substantive rights on us, and when these substantive rights is violated by someone else, it generate the cause of action, and for injury that we suffered by such violation, we can file a civil suit.  

ROLE OF PLAINT IN CIVIL SUIT:

Role of plaint is essential, once we decide to file a civil suit. The person who files the suit is called Plaintiff and one who defend the suit is defendant. Plaintiff prepares the plaint with the help of his advocate, lawyer, or attorney. In a plaint, Plaintiff mention all the incidents where his substantive right is violated by defendant and because of that plaintiff suffers injury. In short, the plaint should consist of all relevant facts which give rise to cause of action. 

HOW TO PREPARE A PLAINT:

One should be very careful while preparing the Plaint as it represent what relief we need, why we need, and whether we are eligible for it according to law or not. There are certain rules that we should take care of. 

In India, Civil procedure code 1908 deals with the Procedure that a court has adopted and in that code we can see reference about Plaint. As order 6 of CPC deals with pleadings. Pleading consist both Plaint and Written statement. Rule-1 of order 6, make it clear to some extent that how we should mention our facts in plaint. 

RULE TO PREPARE PLAINT:

The plaint must be prepared in accordance with Rule 1 of Order 6. Some important point are given below:-

1- Every Plaint should consist of statement in a concise form.

2- Plaint should contains only material facts.

3- Plaintiff shall setup his claim on these material facts.

4- Plaint should not consist of Evidence by which plaintiff want to prove his facts.

5- Every Plaint, if necessary, be divided in paragraphs and number consecutively.

6- Each allegations, so far as convenient, contained in separate paragraph. 

7- Dates, sums and numbers shall be expressed in pleading in figures as well as words. 

8- Plaint to be signed by Plaintiff and his advocate/lawyer/attorney. 

9- Paragraphs in plaint to be verified by Plaintiff/advocate/lawyer/attorney.

13-Plaint should avoid unnecessary, scandalous, frivolous or vexatious facts or which causes prejudice, embarrass or otherwise causes abuse of the court.

CONCLUSION:

once a Plaint is prepared, it is to be submitted to the court of law in order to get the remedy of violated right. Once Plaint filed, the court provide 30 days to the defandant to submit his part but if defandant does not submit it within a given time, the time may be extended for further period but in no case more than 90 days. Although, procedure of civil suit is whole togather a different topic, which we will talk about in different article. As this article was mainly focused to Plaint. 

Important Principles of Drafting, Pleadings and Conveyancing

 

INTRODUCTION:

Hello everyone, today we are going to discuss about certain principles of good drafting, pleadings and conveyancing. whenever we draft a document it is very much essential for us to draft a document in such a way that it will impact the reader in positive way, but the question is how we can do that?

This article will help you to understand and identify these principles and by applying these principles you will be able to differentiate between relevant part that you have to mention in your draft and the irrelevant part that you have to avoid. 

This article will help you to grow overall skills of drafting a document. so let us begin. 

DRAFTING: Drafting a document or a draft is a process where you mention all relevant facts which was arises form cause of action and which opens the door to approach for remedy of the court of law. 

Drafting are of two type, criminal and civil. In civil drafting there are certain documents that we have to draft such as, Plaint, Written statement, Writs, Petitions etc. 

 

 

5 RULES OF DRAFTING:

There are 5 basic rules that everyone should keep in mind while drafting these documents:

1- CONCISE: Drafting is not always about bulky lengthy and numerous documents, if you can explain all relevant facts in much more concise way it will strike a positive impact on readers mind. And it is much more easier for reader to understand it and it makes there task less lethargic.

 

2- CLARITY: You can only make your point clear to the reader if you yourself has the clarity about things that you want to convey to the reader. It is most important for you to be clear about the facts which you want to convey to the court of law. 

 

3- AVOID MISTAKES: It would be worse to commit mistake in a draft, it leads to a negative impact on readers mind, although it is a minor one and sometimes it happens that even if we are aware about it still it happens. So, be sure to read it with full awareness so that you can avoid it. 

 

4-COURTESY: While we draft a document we mostly consider to have an attacking side, to strike the opposite party with allegations and how they violated our rights but one should keep in mind, to do this we may not lead to affect the courtesy of the court. And also when we allege one this in a decent way the opposite party is much more interested in listening and understanding our part. 

 

5-LOGICAL ARRANGEMENT: The most important thing while drafting a document is to differentiate paras of document in such a way that each para shows separate individual facts in a complete manner and these paras should be arranged in such a way that as whole they complete the entire sense of what we want to convey to the reader. 

 

CONCLUSION:

As it is very important for advocates, lawyers, attorneys to draft documents in day to day life, this article would be helpful for them to have a better approach toward drafting, pleading and conveyancing. Even students who are pursuing law found it much more easier to understand these basic 5 Rules of Drafting. Once, you apply these principles it will enhance your ability to draft a document in much more articulative manner. 

Introduction to Pleadings and conveyancing.

Why we are here?

Today we all are here with one reason and that is to understand not only the basics of Drafting but also the depth of principles related to drafting. Have you ever thought about why drafting is so hard? I mean, if you are a law student or actually indulged in a legal practice you can understand that even high profile advocates are so much concern about drafting, why is it so?

                                                            What is Drafting?

There are several questions that strike in our mind when we deal with drafting, such as, should we use tough words to make our drafting better? should we use lengthy paras to make our drafted document an attractive one? some of us think that drafting is a work of experience, well to some extent you are right, it is a matter of experience but none of the tough words or lengthy paras make any sense. On the other hand, drafting is an art by which we can show the cause of action to the court of law and ask for relief that a person actually suffers in a short but exact way. 



                                       INTRODUCTION:

Drafting and pleadings, an altogether different game. When you enter the practical field of law you would realize that most of the importance is given to Drafting. Drafting a document is the only way that is more significant when it comes to approaching the court for remedy. Drafting requires practice, experience, patience, persistence, and updated knowledge of recent amendments and updated laws.

If you are a newcomer and trying to understand, what is drafting? what are its types? How we can draft a Plaint or Written statement? then you are in the right place. Here is the article which will help you to understand the basics of the drafting.

What is Drafting?

In law, drafting is not defined anywhere perfectly but if we consider the practical aspect, Drafting is a document in which any person (who suffers wrong or whose right is violated or against whom an offense has been commenced) mentions the cause of action and requests the court for appropriate relief according to the law applicable. 

How many types of Drafting are there?

Majority Drafting is divided into two types, civil and criminal. There are some offenses who at the same time has civil in nature and also criminal in nature, for example, defamation is a criminal offense under IPC 499, 500 and also a civil offense in tort. It basically depends upon the approach of the client towards the court. If a client demands imprisonment or fine then the matter will be criminal and deals with criminal drafting such as complaint, FIR, etc. And if the client approaches court just for compensation or damages for his loss then the matter would deal with civil drafting such as Plaint, written statement, etc.




Name of the parties varies as under:

	PARTIES	By Whom (action) A.	Against Whom B.
CIVIL DRAFTING
	Plaint (Suit)	Plaintiff	Defendant
	Written Statement (Suit)	Plaintiff	Defendant
	Writs	Petitioner	Respondent
	Petition (Civil)	Petitioner	Respondent
	Appeal (Civil)	Appellant	Respondent
CRIMINAL
	Complaint	Complainant	Accused
	Appeal (Criminal)	Appellant	Accused/respondent

________________________________________________

BASIC FORMAT OF PLAINT

 IN CIVIL SUIT

IN THE COURT OF ________AT______

SUIT NO. ___OF 2020

PARTY (Name, address)                                                                   ….Plaintiff

Vs.

PARTY (Name, address)                                                                  …Defendant

The subject of the suit

Plaintiff submitted as under:

(Introduction of parties, Description, Work, Law-abiding person, no enmity)

1.

2.

3.

(Cause of Action, Incident, Right, Damages, etc.)

4.

5.

6.

(Legal Paras, Court fee is submitted, Court has jurisdiction, valuation of a suit, within time limits, etc.)

7.

8.

9.

 (note: you can increase the number of points according to your facts)

Prayer

Explain in a para or pointwise (What relief you request for)

Place_____                                                                                      Sd-

Date______                                                                                Plaintiff

  Verification:

True of my knowledge (Plaintiff) and some para are based on my advocates' advice and believed to be true

Place_____                                                                                   Sd-

Date______                                                                              Plaintiff

____________________________________

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____________________________________________________

About Me

I am an advocate by profession but my goal is to extend the knowledge of laws to every person who is concern about law and wants to understand the law. Now the question must be in your mind that if my purpose is just to make you aware of law then it is not too important as you guys can read books and learn things, well exactly where you are wrong. when you will entres to a practical field of law none of your books will make sense, although the law will apply, things like getting a certified copy, preparing plaint, making written statements, submitting a case, taking adjournments, etc, are not really given in books. And my object is to provide you the knowledge of practical law.

My Youtube Channel:- 

After having experience in this field and running an education youtube channel, I can help you out in the practical field of law, on this blog you will find within a couple of days, formates of various applications related to civil and criminal drafting, I will also share my ideas and tricks related to drafting. So, lets us buckle the belt and start the journey together. 

You can also check out the videos related to Drafting. 

In this video, I had discussed the basics of the plaint and written statement. 

This video will be helpful for you if you are new to the drafting and trying to understand the depth of drafting.