This Article is submitted by –
- Deepak Yadav
The Suit has not been defined in the Code of Civil Procedure, 1908 but presentation of the “Plaint” in the court is an initiation of the Civil Proceeding.
It is important to understand that drafting should be in accordance with the Code of Civil Procedure 1908, when a plaint is drafted the provisions of Order VII has to be followed which talks about the essential particulars to be contained in the plaint with rule 2 of order II which mentions that suits should include whole of the claim in respect of the cause of action, if any relief which plaintiff was entitled has not been reflected in the plaint, the same cannot be claimed later and the relief so left will be considered as the part which plaintiff has relinquished and the same claim cannot be claimed in a separate suit also.[i]
As the suit is filed a date is fixed for the hearing of the case of the plaintiff and the relief claimed is examined by the Court and then the Court may issue summons under Order V, to the defendant to appear and file the written statement (it is a pleading of the defendant where he deals with every material fact alleged by the plaintiff and also takes objections against the claim of the plaintiff) which is to be filed within thirty days from the date of services of the summon and if the defendant fails to file the Written statement within thirty days limit,
It can be extended to maximum of ninety days with reasons recorded and if the defendant fails to file the Written statement within the time fixed by the court, the Court shall Pronounce Judgement or make any order it thinks fit and on the pronouncement of the Judgement an ex- parte Decree shall be drawn up under rule 10 of Order VIII.
It has been held that rule 10 of Order VIII is not mandatory and the court can use its discretion to Pronounce or not to pronounce the Judgement and can also allow to file written statement after the expiry of the ninety days provided Under Rule 1 of Order VIII.[ii]
As the summons are issued, the appearance and non- appearance of both the parties are governed by Order IX,
The Defendant either appears before the court or not appears before the court, if Defendant appears, the court directs the defendant to file the Written Statement, and with Written statement he has a right to claim set-off, or to file Counter claim against the claim of the plaintiff, while set-off are the claim by the defendant from the plaintiff, it is a plea in defence, available to the defendant for the adjustment of the debt owed by the plaintiff to defendant whereas Counter Claims is a cross suit filed by the defendant against the plaintiff , in this case it is the plaintiff who files a Written statement, however the counter claim should not exceed the pecuniary Jurisdiction of the court, It is to be noted that parties to the counter claim should be same as to the parties of original suit .
When the defendant does not appear and Plaintiff appears before the court and summons were duly served, the Court may hear the suit Ex-parte and during the proceeding an application under order IX rule 7 can be filed by the defendant to set aside the order of ex parte proceeding and if no such application has been filed by the defendant the court may pass a decree against him. This Provision however applies to First Hearing only and not on subsequent hearings[iii], when the Court pass an ex- parte decree, the remedies available to defendant are :
- To apply to the court by which such decree is passed to set it aside under Order IX rule 13,
- To file an appeal against such decree
- To apply for review
- To file Suit on the Grounds of Fraud.
It has been seen as a convention that with Written statement, Defendant files an application under rule 11 of Order VII for dismissal of the plaint before the court while questioning legal points on jurisdiction or court fee or cause of action, while deciding the application the court is duty bound to read averments made in the plaint only and the plea taken by the defendant in written statement is irrelevant[iv]and it has to be decided before moving ahead with proceedings.
As soon as the defendant files application for dismissal of the suit, the plaintiff to correct the errors made in the plaint, files an application for the amendment of the plaint under rule 17 of Order 6 , now an interesting question that arises is that when the Court have an application of dismissal and an application for amendment, which is to be decided first, if the rejection application is entertained first the suit may get dismiss and if the amendment is allowed the dismissal application automatically may become infructuous, it has been held that as the procedural laws are intended to facilitate and not to obstruct the course of Justice, amendment under order 6 rule 17 is neither restricted nor controlled by Order 7 rule 11.[v]
As if the Defendant discloses new facts in his Written Statement, the plaintiff in order to defend or to make those points or facts infructuous, files a document which is also a part of Pleading known as “Replication”, it is nowhere defined in the Code of Civil Procedure instead the Courts ask to file that under subsequent pleading under rule 9 of Order VIII, which says that no subsequent pleadings to the Written statement other than by the way of defence to set-off or Counter Claim shall be presented except by the leave of the court whereas Black’s law dictionary defines Replication as pleading in common law made by the plaintiff in an answer to the defendant’s Plea[vi]. It is not a common practice to file Replication, the court may direct to file it only in three situations[vii].
- Required by law
- When a counter claim is filed
- When the Court directs a replication has to be filed.
As the replication is filed by the Plaintiff, the defendant files “Rejoinder” as a second pleading in reply of the Replication filed, Black’s Law Dictionary defines Rejoinder as second pleading an answer by the defendant to plaintiff’s replication. As the Issues are to be framed on the basis of the pleadings only, Order VI talks about the pleadings which shall mean Plaint or written statement, therefore it can be said that pleadings consists of :
- Original Plaint
- Original Written Statement
- Amended Plaint
- Amended Written statement
After pleadings are completed the next stage comes as admission or Denial in which the court shall at the first hearing of the suit ascertain from each party or his pleader whether to admit or denies such allegations or facts as are made in the plaint or in the Written Statement, this process narrow down the points of conflict and it brings only those points which arises as an Issue, issues arises when the material facts is affirmed by one and denied by the other party. It is important to note that Issues are to be framed on the basis of the pleadings only. Framing of issues has been talked in Order 14 rule 1 and two types of issues have been identified:
- Issues of facts
- Issues on law
Issue related to jurisdiction and bar to the suit created by law may be treated as Preliminary Issue, If the court has framed the issue of limitation it a mixed question of fact and law which is to be disposed by taking the evidence, and it is the duty of the court that Preliminary issue has to be decided first without going into the merits of the case and it is in the discretion of the court that either to reject the plaint under Order 7 rule 11 or return the plaint under Order 7 rule 10.
As the Trial begun the issues are framed by the court and it is the duty of the court to allow evidence for the purpose of the adjudication of the issues only, Trial is the stage where both the parties are in a position to know what facts and what documents should be proved by them . It includes Summoning of the witness, attendance and examination of the witness.
After issuing the summon, the attendance has to be enforced and if the witness is not present after duly serving the summon the court can issue warrant, attach or sell his property , impose fine or order him to furnish Security for his appearance and in default commit him to civil prison.
First the Plaintiff evidence (PE) takes place in which examination in Chief, Cross examination takes place and thereafter the Defendant evidence (DE) takes place in which also the examination in chief and cross examination is taken and if any fact has been admitted by any party for which the case is pending, either in the pleadings or otherwise, either of the party may file an application under Order 12 rule 6 on the basis of admission available on record or the court on its own motion can pass an order for the Judgement on the basis of admission so made.
As soon as the Evidence is completed and all the facts and documents are either admitted or denied, the court starts deciding the issues so framed and after the deciding issues, the court passes the judgement and decree on the basis of evidence adduced.
The party aggrieved by the judgement files an appeal under sec. 96(2) of the CPC or Review which is filed in the same court which has pronounced the judgement or Revision which is a type of complaint filed in appellate court stating the judgement of the subordinate court is erroneous.
“The views of the authors are personal“
[i] S.N.P Shopping services Pvt Ltd. vs. World Tanker Carrier Corporation, AIR 2000 Bom 34.
[ii] Salem Advocate Bar Ass. Vs. Union of India,(2005) 6 SCC 344
[iii] Sangram Singh vs. Election Tribunal, AIR 1955 SC 425:(1955) 2 SCR I
[iv] Salem Bhai vs. State of Maharashtra, (2003) 1 SCC 557
[v] Wasudhir Foundation vs. C. Lal & sons,(1991)
[vi] Black’s Law Dictionary, 6th Edition 1990
[vii] Anant Construction(P) ltd. vs. Ram Niwas(1964), suit no.1699/82