Litigation

Litigation as we all know means a process of taking legal action. A such litigation is only be launched when it is brought to the notice of the court concerning that such a cause of action has arisen which requires the interference of the court. In case of a civil litigation it will be an civil right which is enforceable and the violation of the same which will constitute the essential to launch the civil litigation.

All this process of launching of litigation begins with the presentation of a plaint. The plaint is the document by presentation of which a suit is instituted. It may be defined as an application which is made before the court about legal enforceable wrong which has been caused by the defendant to the plaintiff. It is a private memorial tendered to a court in which a person sets forth his cause of action: the exhibition of his action in writing.[1] A plaint must contain certain elements such as name of the court, name, description and place of residence of plaintiff and defendant, a representative character of the parties if any, information if the parties involved are minor, of unsound mind or pauper, details about cause of action which must be in a precise and informative form and must be established to the court.[2]

Another most important prerequisite for launching the litigation is the exemption from limitation period. If the suit is barred by limitation, the court provides strict adherence to the limitation period thereby such a cause of action would not be provided with the relief sought. The Indian Limitation Act, 1963, also provides with provisions for condonation of delay but such a provision is available in cases where there is a reasonable delay.[3] While it the same footing is of the jurisdiction which may also bar the launching of litigation. The jurisdiction as been dealt in section 15 to 21 of the Code of Civil Procedure, 1908 expressly provides that the jurisdiction is classified into the pecuniary jurisdiction, territorial jurisdiction and jurisdiction as to the subject matter. The pecuniary and territorial jurisdiction, if abrogated, may still be entertained and be decreed upon or appealed to, in case of any irregularity on the part of the litigants but wherein the case of non compliance with the jurisdiction as to the subject matter, it will render any such decision of the court or a decree, judgement or order void, provided that such court had no appropriate jurisdiction as to the subject-matter of the suit.

A relief which is sought before the court also is an essential for a plaint, thereby leading to the suit and for launching of litigation. It basically means the help or assistance sought by the plaintiff from the court for redressal of his grievance. Wherein it is observed that such a relief sought must be briefly but unambiguously mentioned. Apart from this any other important information which is considered to be important for the court must be provided in the plaint. Such may be the valuation which also determines the jurisdiction at the same time supports the relief claimed. The amount claimed must be precise, in case of money related suit. In case of Mesne profits of the property which are in the possession of defendant, it is sufficient of the approximate amount is stated therein the relief claimed. In case if the suit is for dispute of an immovable property, full description of such property along with survey numbers and its boundaries must be specified.

What other elements constitute the plaint is that it must show that the defendant is a person of interest in the suit. This term shall not be misconstrued while it must be stated in the plaint that the defendant has some interest in the subject matter wherein he is liable to be called upon to the court and to answer the claims of the plaintiff.

The precise provisions as to the institution of suits are present in Section 24 and Order 4 of the Code of Civil Procedure. While the parties to the suits are informed of the launching of litigation by the presentation of plaint to the court and the summons being sent to defendant along with the copy of the plaint, it is the duty of the defendant to appear on the given date and time, having any non compliance thereto might cause an adverse affect to the defendant.

The proceedings which are not commenced with the presentation of a plaint are not a suit.[4] And such presentation of a plaint must be made on a working day and during the office hours. It is also observed that there is no particular rule regarding such presentation and a Judge may accept it at his residence or at his office according to the convenience of the Judge. Keeping in regard the strict interpretation of the Limitation act, it has been held that if it’s not too inconvenient a Judge must accept the plaint, if it is the last day of limitation.[5]

It can be concluded that if the requirements of a plaint that are its particulars[6], the parties to the suit[7], rules relating to framing of suits[8] are complied with along with appropriate jurisdiction with respect to limitation, then after the process of presentation, the plaint will be scrutinized by the Stamp Reporter. The Stamp Reporter has to make sure that all essentials and particulars have been properly mentioned in a plaint. In case if the stamp Reporter finds any defect in the plaint, the plaintiff will be asked to remove such defect or get it done through his advocate. If everything is done properly and all defects are removed, the suit will thereafter be numbered[9] and that will conclude the process of launching of litigation.

[1] Assan v. Patthuma ILR (1899) 22 Mad 494

[2] P. Chandrasekharan v. S. Kanakarajan (2007) 5 SCC 669

[3] S. 5 of the Limitation Act, 1963

[4] Secy. Of State v. Kundan Singh AIR 1932 Lah 374

[5] Alok Kumar Roy v. Dr S. N. Sarma AIR 1968 SC 453

[6] Order IV, Rule 2

[7] Order I

[8] Order II

[9] Union bank of India v. Sunpac Corpn. AIR 1986 Bom 353

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