A trek to the Stages of Civil Suit
Author: Pasapala Syed Mustaq
Abstract:
As popular saying that, India is a Common Law country which follows the precedents of Top courts. In every aspect whether it is a Criminal Law and Civil Law. There are two procedural laws i.e.; Code of Criminal Procedure,1973 (hereinafter referred to as “CrPC) and Code of Civil Procedure,1908(hereinafter referred to as “CPC”). In this article, the author would like to travel on the journey of stages of Civil suit.
Exordium:
India is one of the developing countries in this world. It has a written Constitution which is considered a sacred book to all citizens of India. There are two legal systems in this world. Those are the Civil Law System and the Common Law System. The Civil Law System will not be dependent upon precedents, the countries which are following said legal system are France, Germany, Switzerland, etc. The Common law system will depend upon the precedents of Higher Courts as it has been inserted vide Article 141 of Constitution of India which talks about Binding nature of Judgments, the countries which follow the said legal system India, US. As our legal system is Common Law in nature, this paper will briefly explain that alone. There are two procedural laws in the said legal system. Those are Criminal Law and Civil law. Criminal law is procedural law, it guides how to investigate and how to punish the criminals according to the act of the perpetrator, the act is said to be a Public Wrong. Civil law is also procedural law. The act involves under Civil law is Private wrong, it will change to the public wrong when the criminal act entails.
The author would like to focus mainly on the Civil Law which is said to be Private Wrong. When I heard the word “Law and particularly Civil Law, I used to remind my father’s words, he used to tell us Law is like an Ocean, you should always strive to read more and more and your main motto is to acquire knowledge as much as you can. And he also tells that Civil law is one of the intriguing subjects, you will feel engrossed when you are going deep into it, and there are many intricacies in Civil Law. We can put ourselves three questions: WHEN the dispute will reach the Court, HOW it will reach the Court and WHY it will reach the Court.
1. When the dispute will reach the Court: The dispute will reach the Court when there is a failure in part respectable elders in their community or within their family. One of the major disputes in Civil cases is Property disputes. The property disputes will arise due to the encroachment of the other party in the aggrieved party’s land, partition disputes, by following illegal activities changing names, or doing mutations in Land records to claim the said property belongs to them. Those are the few instances where the party who is aggrieved by the acts tends to approach the Court, that’s how the property will reach the Court.
2. How it will reach the Court: The channel to reach dispute to the Court through Advocates or party in person can represent his case provided he should get permission or consent from the Judge. When the dispute has not been resolved by respectable elders in their community or within their family, the aggrieved party has to reach to the Advocate to represent his case in Court. Initially, the party plays a crucial role in marshaling the facts of the case to the lawyer, there is a popular saying that one should not hide any problem with doctors and lawyers if you wish to get better treatment. By this analogy, we can say that not only advocate playing a vital role in a case but also the Client or Party to his case as well.
3. Why it will reach the Court: If the dispute is settled by the supra elders, the said case will not reach the Court. Hence, it will reach the Court to get relief from the Court. It is false to say that, people are losing faith in Courts. As the present situation of the Court, the burden they face due to heavy cases to decide it implies us that, people lost faith in the said respectable elders but not upon Courts. By approaching the Court, the aggrieved may get relief such as Interim (Injunction order), interim compensation, etc. subsequently permanent relief, subject to the case-to-case basis.
Stages that Involved in a Civil Suit:
Civil cases will be dealt with by following the rules and procedures mentioned in the Code of Civil Procedure, 1908. The Code has a total of 158 Sections and 51 Orders and Rules. It has a procedure to file a suit, to initiate execution, sent to Civil Prison if the party failed to obey the orders of the Court.
1. Plaint:
When we were in Intern periods as law students may it be under an Advocate or a firm (If it is Litigation Side), if we ask them what are the facts of this case sir? their immediate reply would be read Plaint you will get all facts of this case. There starts baby learning to search for plaint to read, skipping all papers. Once, we find the Plaint it will be one great achievement for that day. A plaint is a document, which contains all facts of the case which is averred by the client to his lawyer, but it will be in Legal terminology. Filing a Plaint is an initial stage to the case or for every Civil suit. To know the facts of the case, to follow the case, and to give adjudication in that particular case itis mandatory to read the Plaint as a whole[1]as stated in the case of Kurella Naga DruvaVudayaBhaskaraRaovsGallaJaniKamma (2008) 15 SCC 150.
The Particulars will contain in Plaint:
1. At the top of the page, the first content will be the Name of the Court and the place where the suit is brought.
2. Name, place of residence of both parties as we termed in legal parlance as Plaintiff and defendant, and we have to mention if either of the parties has minors them as Minors following to their name.
We termed them as Cause title of a suit.
3. Then comes the main part of the case that is the Facts of the Case.
4. If we decided to bring the suit to the Jurisdiction of the Court, to satiate that the Court has jurisdiction, we have to show the statement value of the subject matter (Valuation statement) and then the Cause of action.
5. Plaint should also contain the relief claimed by the Plaintiff, whether it may be to order for Injunction, damages, or compensation.
6. And the list of documents should also be mentioned to which the parties are relying on the case and should affix them along with the Plaint while filing.
2. Summons: The word “Summon” according to the Merriam-Webster Dictionary is that “to command by service of summons to appear in Court”.[2] In common parlance, it is said that the Court has called to appear before it because someone has filed a case against us. The Court will summon the opposite part here in legal parlance it is the defendant, once it accepted the Plaint. The requirements of Plaint should fulfill to arrive at the second stage that is Summons. Order V and Section 27 of CPC talk about “Services of Summons”. Usually, the summon will be issued through the Registered post and it will attach an acknowledgment card. The said card can be used as evidence to show that summons are served. In the advent of technology, the following verdicts were the Court allowed summon sent through email and WhatsApp text will also be validly held in Central Electricity Regulatory Commission vs National Hydroelectric Power Corporation,( 2010) 10 SCC 280 the Apex Court permitted sending the summons or Notice through email[3] and Delhi High Court in TATA Sons Ltd Vs John Does CS(Comm)1601/2016, permitted both email and WhatsApp text platforms can be used to send summons[4].
3. The appearance of the Party: The appearance of the party will play a vital as soon as Summons is served. Because there is a presumption that, the defendant may deny the allegations made by the plaintiff against him and there should also follow the popular and utmost important principle Audi AltermPartem by the Court. By summoning the defendant, the Court is giving the time and space to the defendant to make his statement against the plaintiff's allegations. The party can appear to the Court by his advocate or he can appear on his own it is called Party in Person. What if the defendant absents when the Court fixes the date and summon him as well with mentioning the details regarding appearing before the court to such date? There is an answer to the above question, under Order IX Rule 6(1) (a) it tells that if the defendant absents when the Court summons him the Court can pass the Ex parte decree against the defendant and favoring the case to the plaintiff. Setting aside the said exparte decree is mentioned in Order IX Rule 13.
4. Written Statement: The written statement has to file once the party receives the summon from the Court. The written statement is said to be a reply to the plaint or counter attack or defense to the plaintiff’s allegations against the defendant. What does Written Statement mean has not been defined in CPC but discussed about the Written Statement under Order VIII of CPC. In a written statement the Cause title will be followed the same but the allegations have to state that, the plaintiff has made all false allegations. It is said that we can accept the allegation made by the plaintiff partly so that in further there will be no bad consequences to face as it says accept what you did if not face bad consequences. For instance, if the plaintiff made an allegation that, the defendant has borrowed from me Rs. One lakh, it is good for the defendant to say that he borrowed the money, and further he can prove that he has not borrowed that much bulk money as stated by the plaintiff. The lawmaker has given liberty to the defendant through CPC is that, while filing the written statement the defendant can also claim that plaintiff also borrowed the money to him by showing the prove the defendants can pray for Set of the claim made by the plaintiff as stated in Order VIII Rule 6 of CPC. And under Order VIII Rule 6A-6G, while filing a written statement the defendant can claim that the plaintiff also has borrowed the sum of money. While filing the Counter Claim, it is can be any cause of action. There will be a time limit to every rule as the same as the written statement. The defendant has filed the written statement within the thirty days from the service of summons but they can take the permission from the Court to file the written statement but not after ninety days it means within ninety days the defendant has to file written statement but in Commercial suit, it can be extended to 120 days to file the written statement[5] as held by the Top Court in the case M/s SCG Contracts India Pvt. Ltd. vs. M/s KS Chamankar Infrastructure Pvt. Ltd., [C.A. No. 1638/2019]. After filing the written statement, the Court will allow the parties to settle the matter. This method has brought vide CPC Amendment, 1999 added Section 89 to the CPC it says that, if it appears to the Court that it can be settled out of Court then the Court will give an opportunity to settle. In this case, if the parties say Yes, the next step will be to place the same dispute for Arbitration, Conciliation, or Lok Adalat (mostly prevailed channel). If the parties say otherwise (I mean “No”) then the Court will frame the issues as under Order XIV Rule1 after hearing on both sides, perusing the Plaint, Written Statement, and documents relied on by both the parties.
After framing the issues, the stage will be the recording of evidence on both sides. First, the Plaintiff’s side evidence/witness(es) will be recorded, the witness will be termed as PW (Plaintiff’s Witness) PW1, PW2, PW3……there is no limit to examine the witness and to the same said witness against the defendant side advocate will do Cross-examination. After the closure of Plaintiff’s side evidence then comes the defendant side witness’s turn to attend for examination, the said person will be termed as DW (Defendant witness) DW1, DW2, DW3…… here the same rule applies as like plaintiff that there is no limit to the witness.
After examining the witness of both parties then the Court will pronounce the judgment under Order 20 Rule1 after hearing the arguments on both sides.
Conclusion:
Thus, the author would like to conclude that there is faith in Judiciary. In this piece of article, the author state that there is a procedure to deliver the judgment, and the Court has to balance both sides and to give its judgment. By observing the stages of the Civil suit supra, we can state that while delivering judgment every stage is vital and it should take into consideration.
References
[1]Kurella Naga DruvaVudayaBhaskaraRaovsGallaJaniKamma(2008) 15 SCC 150. [2]https://www.merriamwebster.com/dictionary/summon#:~:text=transitive%20verb,call%20upon%20for%20specified%20action [3]Central Electricity Regulatory Commission vs National Hydroelectric Power Corporation, (2010) 10 SCC 280 [4]TATA Sons Ltd Vs John Does CS(Comm)1601/2016 [5]M/s SCG Contracts India Pvt. Ltd. vs. M/s KS Chamankar Infrastructure Pvt. Ltd., [C.A. No. 1638/2019]