HOW TO FILE A CIVIL SUIT IN INDIA

WHAT IS CIVIL SUIT?

A civil suit is a legal action taken by one person(referred to as the plaintiff in legalese) against another person( referred to as the defendant) for any injury and damages that have been sustained. As a result of some of the alleged wrongdoings on the defendant’s part. Typically, the plaintiff requests compensation, which is expressed primarily in monetary terms.

Types of Indian civil suits.

In India, there is no legal definition of what constitutes a civil suit. The are some categories that are typically used to group the matter that falls under the purview of the civil litigation process.

Damages arising from tort- Although there is no written law of torts, claims arising from civil laws have frequently been upheld, established, and altered by legal tribunals. It includes acts like negligence, strict or absolute liability, etc.

A breach of contract- occurs when two parties agree to a set of agreements but one of them abdicates their contractual obligations.

Tenant- landlord issues– The tenancy agreement also contains certain conditions and guidelines that must be agreed to by both the tenant and the landlord.

Equitable claims-  Not all the time civil suits are related to property and money but some act is related to acts which infringes the plaintiff’s rights. Injunction orders restraining certain acts fall under this category.

Property Disputes-  this category handles any issues with the property that doesn’t fit into one of the above categories.

Who can file a civil suit?

A civil suit can be brought by anyone who feels they have been harmed or damaged in some way by another person.

The Code of Civil Procedure, 1908 governs the law governing the course of civil proceedings in India. It outlines the Order and rules for the processes and methods of governance of civil actions in India and deals with the general jurisdiction concept.

Before bringing a civil suit, certain factors must be established. These are the following.

• Place of Suing 

The location of the trial is referred to as the “ place of suing” Determine which court has jurisdiction to hear the civil suit before filing any lawsuits.

The jurisdiction of the court is defined by Sections 15 to 20 of the code of civil procedure( hence referred to as CPC)

Each court has both pecuniary and territorial jurisdiction. According to section 15 of the CPC, the lawsuit must be brought to court with the lowest competency level.

• Importance of suit.

The parties of a suit, the subject of the dispute and the reason for the dispute are some of the fundamental components of a civil suit.

The Basics of a Suit

The parties to the suit, the subject of the dispute, and the reason for the dispute are some of the fundamental components of the lawsuit.

Plaint

The written complaint or allegation is known as a plaint. The “plaintiff” is the party who files it, while the “defendant” is the party that the complaint is filed against.

The filing of a plaint is the first step needed under civil law to institute a civil suit. According to the specification outlined in CPC, the most important thing that must be kept in mind is the facts and law shall contend in the plaint so that plaint shall look prima facie maintainable before the court, under whose jurisdiction the plaint has been filed.

Important information needs to be furnished.

• Name of the court in which the suit has been brought.
• Name, description and location of residence of the plaintiff
• Name, description and location of residence of the defendant.
• If either the plaintiff or the defendant is underage or mentally ill, a statement to that effect.
• The fact constituted the cause of action and it arose.
• Facts are showing that the court has jurisdiction.
• A description of the value of the civil suit subject matter and court costs to the extent that the case permits
• Verification from the plaintiff confirming the truth and accuracy of the information.

In their own case, a plaintiff also has the option to represent their own case in court. However, usually, parties decide to hire lawyers to defend them in the court of law because they do have not that much knowledge which is required to understand the law and technical procedures.

What are the steps involved in bringing a civil suit?

The procedure that is essential and needs to be followed when filing a civil suit is as follows.

Step 1 – Vakalatnama 

Written documentation known as a vakalatnama enables parties to have an advocate represent them in court. The parties authorise such rights to their advocates to represent them in court. The parties authorise such rights to their advocates by filing a vakalnama. Additionally, it serves to protect both clients and lawyers. It could include provisions that say the lawyer won’t be held accountable for any decision made and just about any other terms or conditions that protect the rights and obligations of both the lawyer and the client.

However, any person or the party filing a case can also represent their own case personally in any court with a lawyer. In that case, they don’t need vakalatnama.

In the case of Uday Shankar Triyar vs Ram Kalewar Prasad Singh & Anr

The supreme court stated that any mistake in the memorandum of appeal’s signature, any problem with the signer’s authority, or the failure to submit the Vakalatnama signed by the appellant with the appeal with not render the memorandum of appeal invalid if such mistake or omission is not intentional and the appeal was signed or presented to the appellate court with knowledge and the authority. Such an oversight or flaw can be fixed because it is related to the procedure. It is the duty of the office to verify whether the memorandum of appeal was signed by the appellant or his authorised agent or pleader holding appropriate vakalatnama.

• The advocate is not responsible for any decision which is taken by the client.
• The client covered all fees and expenses which incurred throughout the process.
• The advocate will have the right to keep hold of the document unless complete fees are paid.
• At any stage of the proceeding, the client is free to disentangle the advocate.
• The advocate shall have all the rights to take decisions on his own in the court of law, during the hearing, in the best interest of the client.

Step 2 – Filing of Suit or Plaint 

The filing of a plaint is the initial stage of a civil suit. A “plaintiff” may file a written complaint or allegation against a “defendant” known as a “plaint”. The following points need to be considered.

• Name of the court 
• Names and contact information for the parties involved in the proceedings
• Facts in the conflict.
• Authority of the court.
• Principal arguments or comments made by the plaintiff.
• Verification by the plaintiff of all such papers.

The court also has the authority to dismiss a complaint.

• Where there is no cause of action is shown by the complaint.
• When the plaintiff has requested an undervalued relied on and fails to update the valuation within the time frame set by the court.
• When the remedy sought is appropriately priced, but the complaint is filed on paper and is not sufficiently stamped, and the plaintiff fails to file the complaint within the deadline set by the court.
• Where the suit appears to be barred by any statute of the country.

 In case of Radaa Kanta v. Debendra Narayan I.L.R. The trial court and the appellate court dismissed the plaint because the paint was not correctly valued or stamped and can be rejected under Order 7, Rule 11 of the code at any stage of the suit, the said provisions are mandatory.

M. Mohan And Ors. vs P.G. Shankaramoorthy And Ors.

In this case, the suit was dismissed due to the failure to pay an additional court fee that was required after the matter had already been tried in its entirety nevertheless, this should simply signify that the plaint was rejected. When a court considers the issue of proper valuation, it may do so at any stage of the suit.

Step-3 Payment of court fees.

A nominal amount is a court fee. It is usually a very small percentage of the total value of the suit. It differs from case to case

Some of them are as follows

• In case of plaint/written statement Rs 10 if the value of the suit exceeds rs 5,000/-up to 10,000
• In case of the plaint filed in a suit for possession Rs 5
• On a copy of a decree or order 50 paise.

Court fees as per the 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/-

In case of Mohammad mahibulla and Anr.v.Seth Chaman Lal (Dead)  If the plaintiff is unable to pay the required court fees, even after the first return, then it is incumbent upon him to make an application and seek tike and the court, satisfying itself, should grant time for payment of the deficit court fees. The court should not extend the time, mechanically, for payment of deficit court fees. after given an opportunity, if the plaintiff has not paid the court fees, as observed by the apex court, if there was a failure to comply with the direction of the court, the memorandum of the appeal should be dismissed.

What will the procedure be?

• Hearing.

If the court determines that the matter has merit on the first day of the hearing. It will send a notice to the opposing party (defendant) calling upon him to submit their arguments ( written statement) on a date fixed by the court.

The complainant should take the following actions after the notice’s issuance.

• Submit the required procedure fee to the court.
• For each defendant, submit two copies of the complaint to the court( if there are 5 defendants,10 copies are needed to be filled)
• One copy of each of the two copies filed for each defendant must be submitted through Speed Post, courier and the other copy must be sent through ordinary post
• Such filing should be done within a period of seven days from the date of order/notice.

Written Statement

• The defendant must appear on the specified day after receiving the notice and before the court.
• The defendant must submit his written statement, which serves as his defence against the claim made by the plaintiff, before presenting on the scheduled date.

Within 30 days after the notice’s service date, or within the period of the time the court specifies, the written statement must be filled.

• After asking the court for permission and providing justification for the delay, the maximum amount of time that can be added for the submission of a written statement is 90 days.
• The written statement must expressly refute the allegations made in the plaint, which the defendant claims are untrue and incorrect. any claim that is not expressly refuted is deemed to be true.
• The written statement should also contain verification from the defendant stating that the contents of the written statement are true and correct.

In the case of M/s SCG Contracts India Pvt. Ltd. v/s KS Chamankar Infrastructure Pvt.Ltd

The Hon’ble Supreme court of India has held that it is mandatory to file a written statement in a commercial suit within 120 days from the date of service of summoning the defendants. In case the defendant fails to submit a written statement within 120 days, then his right to submit a reply is forfeited. In such a scenario, even the court cannot extend the time limit by using its inherent power under section 151 of CPC. Therefore, it can be said that in commercial suits, the time limit to file a written statement under VII Rule 1 of the CPC is mandatory.

Plaintiff’s Replication

After the defendant files the written statement, the plaintiff must file a replication. The replication is a response to the written statement that the plaintiff has filed. The plaintiff in replication must expressly refute the defences raised by the defendant in the written declaration. Anything which is not denied is deemed to be accepted 

Once the replication is filed, the pleading is stated to be complete.

It can be stated that Replication is a pleading by the plaintiff in answer to the defendant’s plea. ‘Rejoiner’ is the second pleading by the defendant in answer to the plaintiff’s reply 

Filing of other documents 

After pleadings (plaint and written statement) are completed and both the parties have filed their submission, both the parties are given an opportunity to produce and file documents that are substantial to their claims

Any document not produced or filled cannot be relied upon, during final arguments. After filing, the document should also be admitted on record.

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 of 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, they shall be taken on record and all the details of the suit such as the name of the parties, the title of the suit etc shall be inscribed on the document as per order 13 rule 49 of the code of civil procedure.
• It is mandatory that any document which is filed by the parties must be original and a copy of the such document shall be provided to the opposite party 
• Document, which is rejected/not admitted, is returned to the respective parties.
• Any document which is not filed and produced cannot be relied on during final arguments

Framing the issue 

The court frames the issue, and arguments and witness cross-examination are conducted in light of the issue.

• Issues are framed, keeping in view the disputes in the suit, and the parties are not allowed to go outside the purview of “ Issues”
• The court will address each issue separately with issue-specific judgement at the time of issuing the final decision.

Evidence and Cross- Examination of the plaintiff.

The plaintiff has the right to start, at which point they must present their evidence. Unless the defendant agrees to allegations made by the plaintiff but disagrees with the relief sought then the defendant has the right to begin. In order to present his case to the judge, the plaintiff must state his case in front of a judge. The plaintiff must provide the earlier-marked evidence. Any evidence that has not been marked before will not be taken into consideration by the court. The defence lawyer for the defendant will cross-examine the plaintiff. The plaintiff’s witness must appear in court and be subjected to cross-examination by the defendant’s lawyer.

Evidence and Cross Examination of the plaintiff.

The defendant also present his side of the story supported by the witnesses and evidence from his side. The evidence needs to be marked earlier by the court, otherwise, it will not be considered by the court. The plaintiff’s lawyer will then cross-examine the defendant.

Judgement or decree.

 Following the closing arguments, the court may render its decision that day or set a future date for further proceedings. If the court does not render a decision right away, it makes an effort to do so within 15 days. However, the court must record the cause if the decision is not made within 30 days after the final hearing. The judge dates and signs the decision taken by the court on all the issues that were framed by the court in the beginning. The judgement also includes the set-off, menu profits or any other claims to be made to either of the parties.

The party in whose favour the judgement is passed is known as decree-holder, and the party against whom the judgement is passed is called the judgement debtor.

Review of the judgement.

A party may submit an application for judicial review if it is dissatisfied with the judgement. the court may deny the application if it determines that there are insufficient grounds for the review. unless strict proof is shown that the party was previously unaware of the material, the court may also dismiss the application it was based on new information. also, when an application for the review is received by the court,it shall send a notice to the party in order for him/her to appear and present his side.if the application is granted and a judgement has been passed it cannot be reviewed further.

Appeal

A party will appeal the original decree to the appellate court. The appellate court must receive a memorandum stating the grounds for the objections. The appellant might be asked to pay for the security. The appeal may be accepted, rejected or sent back to the appellant for revisions by the court. The appellate court may order a delay of execution of the decree if it finds justification for doing so. If the appellate court rules in favour of the appeal, it will notify the lower court (whose decision is being appealed) so that it can send the records crucial with regard to the case to the appellate court.

The appellate court will rehear the matter and send a notice for the hearing day. In its decision, the appellate court may affirm, modify, or reverse the original judgement.

Decree execution

If the judgement debtor must make a payment, he may do so both inside and outside of the courtroom. When a payment is paid outside of court, proof of the payment must be provided. Payment must be acknowledged by the judgement debtor by sending a letter to the decree-holder. The decree-holder may submit an application for decree execution if the judgement debtor refuses to abide by the decree. The application must be submitted at the address of the judgement debtor. The person who holds the order may ask the court to help him by surrendering the property, making an arrest or holding a person in custody, or by providing any other relief specified in the decree. 

A notice to show cause is sent to the judgement debtor so they can stop execution. The court may issue instructions to execute the decree if there is no satisfactory response to the show cause notice. If money is not paid, the court may order the judgement debtor’s detention in a civil prison or the sale of the judgement debtor’s assets. Movable property may be seized and given to the opposing party in disputes involving it.