Process details required
Sk Rajjak Hossain
(Querist) 04 December 2018
This query is : Resolved
Dear Experts,
Kindly share the process details of Exparty hearing on Gurdian and Ward Act (child custody) where OP not attend in court on date post received the S/R.
Case filles- S/R issued -----------
KISHAN DUTT KALASKAR
(Expert) 05 December 2018
Dear Sir,
The following procedure usually will be adopted in a civil case.
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Procedure For Filing A Suit/Case
There is a detailed procedure laid down, for filing a civil case. If the procedure is not followed, then the registry has a right to dismiss the suit
The Procedure is as follows:
Filing Of Suit/Plaint
Vakalatnama
Court Fees
How Proceedings Are Conducted
Written Statement
Replication By Plaintiff
Filing Of Other Documents
Framing Of Issues/List Of Witness
Final Hearing
Appeal, Reference And Review
Limitation
Filing of Suit/Plaint
1. In layman's language plaint is the written complaint/allegation.
2. One who files it is known as "Plaintiff" and against whom it is filed is known as "Defendant"
3. The plaint has to be filed within the time limit prescribed in the Limitation Act, and should be typed copy, in double line space.
4. Name of the Court, Nature of Complaint, Names and Address of parties to be suit has to be clearly mentioned.
5. Plaint should also contain verification from plaintiff, stating that, contents of the plaint are true and correct
Vakalatnama
1. A person/party filing a case, May also represent their own case personally in any court.
2. However, due to lack of knowledge of Law and Technical Procedures, Lawyers are engaged to report the interest of parties.
3. " Vakalatnama", is a document, by which the party filing the case authorises the Advocate to represent on their behalf?
4. On General Terms, a Vakalatnama may contain the falling terms:
5. The client will not hold the Advocate responsible for any decision.
6. The client shall bear all the costs and/expenses incurred during the proceedings.
7. The advocate shall have right to retain the documents, unless complete fees are paid.
8. The client is free to disengage the Advocate at any stage of the Proceedings.
9. The Advocate shall have all the right to take decisions on his own in the court of Law, during the hearing, to the best interest of client.
10. Vakalatnama is affixed on the last page of plaint/suit and is kept alongwith court records.
11. No fees are required to be paid on it. However, nowadays, Delhi High court Rules require, a 10 Rupees. "Advocate Welfare Stamp" to be affixed on the Vakalatnama.
12. Plaint should also have the requisite court fees attached to it. Court fees are some nominal percentage of the value of the claim or value of the suit. The requisite amount of Court and stamp fees is different for every suit, and is mentioned in the "Court Fees Stamp Act."
Court Fees
Different amount of court fees is paid for different type of documents.
Some of them are as follows;
1. In case of plaint/written statement == 10 RS. == if the value of the suit exceed Rs.5,000/- upto 10,000/-
2. Plaint , in a suit for possession == Fee of one half of the amount above.
3. On a copy of a Decree or order == ( 50 paise ) == if the amount or value of Having the force of a decree the subject matter of the suit wherein such decree or order is made is fifty or less than fifty rupees.
Vvalue of Suit
1. Value of suit exceeds Rs. 1,50,000-1,55,000 == Rs. 1700/-
2. Value of suit exceeds Rs. 3,00,000-3,05,000 == Rs. 2450/-
3. Value of suit exceeds Rs. 4,00,000-4,05,000 == Rs. 2950/-
Finally, a date shall be given to the plaintiff, for first hearing. On such hearing, the court will decide whether the proceedings should continue or not. If it decides, that the case no merits, then it will dismiss it there itself, without calling opposite party. If it decides otherwise, then proceedings shall being
How Proceedings Are Conducted
1. On the first day of hearing, if the court thinks there are merits in the case, it will issue notice to the opposite party, to submit their arguments, and fix a date.
2. On issuance of notice to the opposite party, the plaintiff is required to do the following:
i. File requisite amount of procedure--- fee in the court.
ii. File 2 copies of plaint for each defendant in the court, i.e. if there are 3 defendants, 6 copies has to be filed.
iii. Of, the 2 copies for each defendant, one shall be sent by Register/post/courier, and one by Ordinary post.
iv. Such filing should be done within 7 days, from date of order/notice.
Written Statement
1. When the notice has been issued to the defendant, he is required to appear on the date mentioned in the notice.
2. Before such date, the defendant is required to file his "written statement", i.e. his defense against the allegation raised by plaintiff, within 30 days from date of service of notice, or within such time as given by court
3. The written statement should specifically deny the allegations, which defendant thinks are false. Any allegation not specifically denied is deemed to be admitted.
4. The written statement should also contain verification from the Defendant, stating that, the contents of written statement are true and correct.
5. The time period of 30 days, for filing a Written Statement, can be extended to 90 days after seeking permission of the court.
Replication By Plaintiff
1. "Replication" is a reply, filed by the plaintiff, against the "written statement" of Defendant.
2. "Replication" should also specifically deny the allegations raised by the Defendant in written statement. Anything not denied is deemed to be accepted.
3. Replication should also contain, a " verification" from the plaintiff, stating that contents of "Replication" are true and correct.
4. Once Replication is filed, pleadings are stated to be complete.
Filing of Other Documents
1. Once, the pleadings are complete, then both the parties are given opportunity to produce and file documents, on which they rely, and to substantiate their claims.
2. Any document not filed or produced cannot be relied upon, during final arguments.
3. Filing of Documents is not sufficient. They should be admitted and taken on record. In brief the procedure is as follows:
i. Documents filed by one party may be admitted by opposite party.
ii. If they are denied by opposite party, then they can be admitted by the witness produced by party whose documents are denied.
iii. Once the document has been admitted it shall form a part of the record of court, and all the details of suit such as name of parties, title of suit etc, shall be inscribed on the document. (O13 R49 7)
iv. Documents, which are rejected i.e. not admitted, are returned to the respective parties.
v. It is necessary that document should be filed in "original", and a spare copy should be given to the opposite party.
Framing of Issues/List of Witness
1. "ISSUES" are framed by the court, on the basis of which arguments and examination of witness takes place.
2. Issues are framed, keeping in view the disputes in the suit, and the parties are not allowed to go outside the purview of "Issues".
3. Issues may be of: A) Fact or B) Law
4. While passing final order, the court will deal with each issue separately, and pass judgement on each issue.
LIST OF WITNESS
1. Whichever witness, the parties wish to produce, and to be examined, has to be produced before the court.
2. Both the parties to the suit shall file a list of witness within 15 days from the date on which issues were framed or within such other period as the court may prescribe.
3. The parties may either call the witness on it's own, or ask the court to send summons to them.
4. In case court send summons to witness then the party calling for such witness has to deposit money ' with the Court for their expenses, known as "Diet Money".
5. A person, who does not appear before the court, if he is required by the court to do so, then the court may impose fine and penalty on him.
6. Finally on the date, the witness will be examined by both the parties.
i. Examination by party of it's own witness is called "Examination-in-chief"
ii. Examination by party of other party's witness is called "cross Examination".
iii. Whatever, has to be deposed in " Examination-in-chief", can also be filed by way of an Affidavit.
iv. Once, the Examination and Cross- Examination of witness is over, and also the admission and denial of documents, then the court will fix a date for final hearing.
Final Hearing
1. On the day fixed for final hearing, the arguments shall take place.
2. The arguments should strictly be confined to the issues framed.
3. Before the final Arguments, the parties with the permission of Court, can amend their pleadings.
4. Whatever is not contained in the pleadings, the court may refuse to listen.
5. Finally, the court shall pass a "final Order", either on the day of hearing itself, or some other day fixed by the court.
CERTIFIED COPY OF ORDER
1. Certified copy of order, mean, the final order of court, and having the seal and stamp of court.
2. Certified copy of useful, in case of execution of the order, or in case of Appeal.
3. Certified copy can be applied by making an application to the Registry of concerned Court, alongwith nominal fees for the order.
4. In case of "urgent requirement some additional amount has to be deposited.
5. "Urgent order" can be obtained within a week, and the normal might take 15 days.
Appeal, Reference and Review
When an order is passed against a party to the suit, it is not that it has no further remedy.
Such party can further initiate the proceedings, by way of:
1. Appeal,
2. Reference, or
3. Review.
In brief, the technicalities and difference between these are as follows:
APPEAL
APPEAL FROM ORIGINAL DECREES
(Sec.96)- In general, an appeal lies from any decree passed by the court.
(Sec 96) In cases, where the value of suit does not exceed Rs.10, 000 An appeal can be filed only on a question of law.
(Sec.96) When a decree has been passed against the Defendant as "Ex-Parte", i.e. without his appearance, no appeal is allowed
(Sec.96) When an appeal is headed by two or more judges, then the
majority decision shall prevail.
In case there is no majority, then the decree of lower court
shall be confirmed.
In case, the number of judges in the court, where appeal is filed is more, than the number of judges hearing the appeal, then if there is a dispute on a point of law, such dispute can be referred to one or more judges.
PROCEDURE FOR APPEAL FROM ORIGINAL DECREES ( ORDER 41)
1. The appeal shall be filed in the form prescribed, singed by the appellant, alongwith a true certified copy of the order.
2. The appeal shall contain the grounds of objection under distinct heads, and such grounds shall be numbered consecutively.
3. If the appeal is against a decree for payment of money, the court may require the appellant to deposit the disputed amount or furnish any other security.
4. A ground/objection which has not been mentioned in the appeal, cannot be taken up for arguments, without the permission of court.
5. Similarly any point of act which was not taken up y the Appellant, in lower court, cannot be taken up in appeal lies only against only those points which have been decided by the court rightly or wrongly.
Limitation
1. For every appeal, there is a limited period, within which appeal should be filed. Such a limitation is provided under the Limitation Act, 1963.
2. For appeal, in case of a decree passed by lower court in civil suit, the limitation is:
i. Appeal to High Court- 90 days from the date of decree or order.
ii. Appeal to any other court- 30 days from the date of Decree or order.
3. In case there are more than one plaintiffs or defendants, then any one of them can file on appeal against all of them respectively.
4. Merely because an appeal is filed, does not mean that the order or decree of lower court is stayed. In case of temporary stay of decree or order, it has to be specifically asked, and stay will operate only if court grants it.
5. In case of execution of decree, the court, which passed the decree, can itself stay the execution for time being on sufficient reasons shown.
6. The court may require the appellant to deposit some sort of security.
7. The appellate court may, on the day fixed for hearing the appellant dismiss the appeal, or issue notice to the opposite party to appear on next day.
8. If on the first day of hearing, appellate court issues summons to the opposite party, then:
i. It shall fix a date for next hearing, and such date shall be published in the court house.
ii. Notice shall also be sent to the lower court, whose decree or order has been appealed.
iii. To appellant is required to file " Process Fee " which is very nominal in amount, and on such filing, the notice shall also be sent to opposite party.
iv. In case of appeal, the one who files the appeal is known as appellant, and against whom it is filed, is known as "Respondent".
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