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.
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