For filing a Civil Suit, the detailed process is laid down in Code of Civil Procedure, 1908. However if the correct process is not followed then the Registry has the right to dismiss it.
Registry here means an office which every court have which provides the information about any court matter and court forms”.
There are certain aspects which need to be determined before filing of suit. They are as follows :
1. Place of Suing
Place of suing simply means the venue of the trial. Before filing a suit (any suit) one must determine which court has the jurisdiction to try the civil suit. Section 15 to Section 20 of Code of Civil Procedure (hereinafter referred to as CPC) constitutes the jurisdiction of the courts.
Every Court has a pecuniary and territorial jurisdiction. As per Section 15 of CPC suit is to be filed in the Court of lowest grade competent to try it.
2. Essentials of a Suit
Some of the essentials of the suit are (a) parties to the suit; (b) subject matter in the dispute; (c) cause of action; (d) relief claimed.
After determining the abovementioned aspects the suit can be filed according to the following procedure :
Filing of a Suit/Plaint
The first step to initiate a suit is to file a plaint. Simply put, a Plaint is a written complaint or allegation made by the one party against other. The party who files it is known as the ‘Plaintiff’ and against whom it is filed is known as the ‘Defendant’.
A Plaint has to be filed within the limit prescribed under Limitation Act.
A plaint should contain :
- Name of the Court
- Name and address of the parties to the suit
- A brief statement about the sections or orders under which the jurisdiction of the Court is evoked (subject)
- Submissions of the Plaintiff
- Verification from the plaintiff stating that the contents of the plaint are true and correct.
A plaintiff may also represent himself/herself in their own case. However, due to lack of knowledge of law and technical procedures, parties choose to engage lawyers to represent them in the Court of Law.
In order to do that a Vakalatnama has to be filed along with the Plaint. Vakalatnama is a written document, by which the parties to the suit authorise an Advocate to represent them before the Hon’ble Court. However, if the party is personally representing it’s own case then, they need not file a Vakalatnama.
Vakalatnama may contain the following terms :
- That the client shall bear all the costs and expenses incurred in the proceeding
- The client will not hold the Advocate responsible for any decision.
- The client will not hold the Advocate responsible for any decision.
- That the advocate shall have all the rights, to take decisions on his own during the hearing in the court of Law, in the best interest of his client.
- That the client is free to disengage the Advocate already appointed, at any stage of the Proceeding.
No fees is required to be paid for it. However, now a days, Courts require a Rs. 10 Advocate Welfare Stamp to be affixed on Vakalatnama. Plaint should also have the requisite court fees attached to it.
- Court Fees
Court fees is a nominal percentage of the total value of the claim or the value of the suit. The requisite amount of Court fees and stamp duty is different for every suit, and the same is mentioned in the Court Fees Stamp Act.
Some of them are as follows :
- In case of plaint/written statement – Rs. 10 if the value of the suit exceed Rs. 5,000/- upto 10,000/-
- In case of plaint filed in a suit for possession – Rs. 5
- On a copy of a Decree or order – 50 paise
Court fees as per value of the Suit
- If the value of the suit exceeds Rs. 1,50,000-1,55,000 – Rs. 1700/-
- If the value of the suit exceeds Rs. 3,00,000-3,05,000 – Rs. 2450/-
- If the value of the suit exceeds Rs. 4,00,000-4,05,000 – Rs. 2950/-
How will proceedings be conducted?
On the first day of hearing, if the court thinks that there is merit in the case, it will issue a notice to the opposite party, calling upon him to submit their arguments (written statement) on a date fixed by the court.
After the issuance of the notice the plaintiff should do the following :
- File requisite amount of procedure-fee in the court.
- File 2 copies of plaint for each defendant in the court (if there are 4 defendants, 8 copies are to be filed)
- Of the 2 copies filed for each defendant, one copy shall be sent by Speed post/Courier/R.P.A.D. and the other copy shall be sent by Ordinary Post.
- Such filing should be done within a period of seven days from the date of order/notice.
- Once the notice has been issued to the defendant, he is required to appear on the date mentioned in the notice.
- Before appearing on the date, the defendant is required to file his ‘written statement’ i.e., his defence against the allegation raised by the plaintiff.
- The written statement should be filed within 30 days from the date of service of notice, or within such time as given by the court.
- The maximum period that can be extended for filing of Written Statement is 90 days, after seeking permission of the court by giving reasons for delay.
- The written statement should specifically deny the allegations stated in the plaint, which according to defendant is wrong and false. Any allegation, not specifically denied, is deemed to be admitted.
- The written statement should also contain a verification from the Defendant, stating that the contents of the Written Statement are true and correct.
Replication by the Plaintiff
Once the written statement is filed by the Defendant, the plaintiff has to file a reply the written statement. That reply is known as Replication. Replication is the reply filed by the plaintiff against the written statement of the defendant.
A replication should specifically deny the allegations and contentions raised in a written statement. Anything which is not specifically and explicitly denied is deemed to be accepted.
Once the Replication is filed, the pleadings are stated to be complete.
Filing of other documents
After pleadings (plaint and written statement) are completed and both the parties have filed their submissions, both the parties are given an opportunity to produce and file documents that are substantial to their claims.
Any document not produced or filed cannot be relied upon, during final arguments. After filing, the documents should also be admitted on record.
The procedure for filing other documents is as follows :
- In certain cases documents filed by one party may be admitted by the opposite party.
- In case if the documents filed are denied by the opposite party, then they can be admitted by the witness produced by the party whose documents are denied.
- Once the documents are admitted, it shall be taken on record and all the details of suit such as name of the parties, title of the suit, etc; shall be inscribed on the document as per Order 13 Rule 49 of Code of Civil Procedure.
- It is mandatory that any document which is filed by the parties must be “original” and a copy of such document shall be provided to the opposite party.
- Documents, which are rejected/not admitted, are returned to the respective parties.
- Any document which is not filed or produced cannot be relied on during final arguments.
The completion of the procedure of filing the suit is being followed by the stages mentioned below :
- Framing of issues
- List of Witness
- Examination in chief
- Cross examination
- Final Arguments
- Final Hearing (final order)
- Appeal, Reference, Review (if any).
The author is a practicing Advocate in Bombay High Court. You can reach to her on email@example.com