Steps Involved in Filing of Suit

November 20, 2017

  1. Institution of Suit

    A suit is instituted by presenting it before the Court or to such Officer that the Court appoints in that behalf by the Plaintiff or his Advocate

Essentials of a plaint:

  • The Plaint shall be presented in duplicate and comprise of the following:
  • Name of the Court
  • Name, description and place of residence of plaintiff and defendant
  • Facts constituting the cause of action and when it arose
  • Facts showing that the court has jurisdiction in the case
  • Statement of value of the subject matter of the suit
  • Reliefs claimed by the plaintiff
  • Amount of claim in case of recovery suit
  • Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished
  • Where subject matter of suit is an immovable property, a description of the property
  • Where the suit is time-barred, the ground upon which exemption from the Law of Limitation is claimed

When can the plaint be presented?

Plaint shall be presented to the Court on a working day and during office hours, however a Judge may accept plaint at his residence after office hours also.

Who can present the plaint?

A plaint may be presented personally by the plaintiff or by a person duly authorized by him or his pleader.

Annexing of documents with the plaint

The plaintiff is required to enter in a list all the documents on which his plaint relies. Code of Civil Procedure, 1908 (CPC) further entails that the plaintiff shall deliver the documents and a copy of the documents along with the plaint[1]. Further, a document which ought to be presented by the plaintiff at the time of presenting the plaint is not produced then the same will not be received in evidence.

  1. Issue of Summons to the Defendant

    Once the plaint is presented and admitted by the Court, the next step involves issuing of summons to the Defendant. The summons is issued to the Defendant to appear and answer the claim. As per Section 27 of CPC, a defendant is given a period of 30 days from the date of institution of suit to answer the claim.

The term “summon” has not been rendered any exclusive definition under the CPC, however in general parlance it refers to a notice that suit or legal proceedings have been filed and a person and to the person to whom summon is issued has to remain present.

Modes of Service of summons-

For defendant residing within jurisdiction the Court in which plaint is presented – Service of summon may be made by delivering or transmitting a copy of the summons by[2]:

  1. Registered post acknowledgement due
  2. Speed post
  • Courier service provided by the High Court
  1. Any other means of transmission of documents, including fax message and electronic mail services

For defendant not residing within jurisdiction of the Court in which plaint is presented– Order V Rule 9 (4) of Code of Civil Procedure, 1908 states that in such a case if the Court directs that the service of summons shall be made by any of the aforesaid (except by registered post acknowledgment due), the provisions of Rule 21 shall not apply. Rule 21 provides for the service of summons where defendant resides within the jurisdiction of another Court.

Presumption of service of summons- A summon shall be taken to be duly served if the article containing the summon has been received back with the endorsement of the person authorized by the courier service that the defendant or his agent has refused to accept the summon.

Where summons or notice by registered post is sent at the given and correct address, there is a presumption of due service[3].

When there are 2 or more defendants?

When there are 2 or more defendants, then summon is to be served on each defendant.

Where the defendant cannot be found?

Where the defendant cannot be found and has no agent authorized to accept service, then the service may be made on any adult member of the family of defendant.

In a suit relating to any business against a non-resident defendant, service may be made on the Manager.

In a suit for immovable property, summon can be served on any agent of the defendant in charge of the property, if the service cannot be made on the defendant in person and the defendant has no agent empowered to accept the service.

What is substituted mode for service of summon?

It implies that when summon cannot be served in an ordinary manner then substituted/ alternative mode for serving summon is used. It includes cases wherein the Defendant or his agent refuses to acknowledge service of summon or where defendant is able to successfully avoid service of summons.

In such cases, alternative modes for service of summon provided under Code of Civil Procedure, 1908 include affixing a copy of summon in some conspicuous place in the court house, and also on some conspicuous part of the house in which the defendant is known to have last resided or carried on business or personally worked for gain.

  1. Inspection of Documents Referred to in the Plaint

Pursuant to serving of summon on the defendant, the defendant has to refer to a copy of the plaint and if any documents are referred to in the plaint, of which the defendant has not got copies, a notice shall be given to the plaintiff or his pleader to produce the documents for inspection.

  1. Written Statement

In general terms, a written statement is defendant’s reply to the Plaintiff’s plaint. In the caae of Food Corporation of India v. Yadav[4], the Court observed that it is a term of specific connotation ordinarily signifying a reply to the plaint filed by the plaintiff.

Order VIII rule 1 of Code of Civil Procedure, 1908 requires that the Defendant shall file written statement within 30 days from the date of service of summons on him. However, the Court on recoding reasons can extend the time to file written statement on any other day, which shall not go beyond 90 days from the date of service of summons.

What does written statement comprise of?

While drafting a written statement, the defendant shall refers rules for drafting under Order VI and VIII of Code of Civil Procedure, 1908. It comprises of defendant’s reply to the plaint, the defendant can also bring in his claim for set-off and counter claim.

If the defendant in his reply relies on certain documents and if those documents are in his possession then the defendant shall file those documents along with the written statement.

Denial should be specific- The denial by the defendant of the claims made in the plaint shall be specific. It is not sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff but he must deal specifically with each allegation made by the plaintiff in the plaint.

Every allegation of fact in the plaint, if not denied specifically or by necessary implication shall be taken to be admitted except as against a person under disability.

  1. Amendment of Pleadings

An application for amendment of pleading can be made at any stage of proceeding. An application for amendment of pleading can be made by the Plaintiff as well as the Defendant.

An application for amendment of pleading will not entertained after trial commences, unless the Court is of the opinion that inspite of due diligence, a party could not have raised the matter before the commencement of the trial.

In which cases amendment of pleadings allowed?

In the case of Rajendar Kumar v. Dipinder Kumar Sethi[5], the Supreme Court opined that generally all amendments would be allowed which are necessary for the purpose of determining the real question in controversy between the parties to any proceedings or for correcting any defect or error in any proceedings

An amendment to pleadings shall not alter or substitute a new cause of action on the basis of which original cause of action was raised or defence taken.[6]

 

 

 

[1] Order VIII, Rule 14(1)

[2] The Amendment Act of 2002 incorporated technological modes that can be used for serving of summons on the Defendant

[3] PT Thomas v. Thomas Jacob, AIR 2005 SC 3575

[4] (1982) 2 SCC 499

[5] AIR 2005 SC 1592

[6] BKN Pillai v. P Pillai, AIR 2000 SC 614

About the Author

Shilpi Sharan

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Shilpi Sharan is the Editor at Vakilno1.com – an Advocate with extensive knowledge in myriad fields of Law. She has a flair of writing and has legal publications in national and international law magazines to her credit. She focuses on legal research and aims at raising public awareness of laws in India.