Meaning and essentials of suits

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Meaning of Suit

Aim – This article focuses to discuss the Meaning of Suit and Essentials of Suit.

General concept of suit

The term suit is not defined under the in the C.P.C. but by various decisions it can be said that “Suit ordinarily means a civil proceedings instituted by presentation of a plaint. Civil suit is the institution of litigation for enforcement of civil rights (or substantive rights, it may be against state or individual). A suit is resulted into decree. Without suit there can not be a decree.

There are four essentials of a suit[1]

Name of Parties (there must be two opposing parties) – In a suit there must be at least two parties the plaintiff & the defendant. There is no limitation with regards to number on either side.

Cause of Actions – it is a set of facts or circumstances that a plaintiff is required to prove. A person is party to a suit if there is a cause of action against him. The cause or the set of events or circumstances which leads or resulted into presentation of a plaint or filing a suit. – lay man language

Legally – The cause of action means every facts which is necessary for the plaintiff(s) to be proved with a view to obtain a decree in his favour.

Cause of action means all essential facts constituting the right and its infringement.

Every plaint must disclose a cause of action if not, it is the duty of the court to reject the plaint – O.7, R.11

Subject matter – there must be a subject matter (with what respect or aspect civil dispute is).

Section-9. Courts to try all civil suits unless barred. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation I: A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

Explanation II: For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.[2]

Relief claimed by the plaintiff – no court will give relief unless relief is specifically claimed by the party

Relief is of two types-

1) specific relief and

2) alternative relief.

Various stages of civil suit

1. Institution of suit or commencement of suit.

2. Service of summon.

3. Written statement

4. First hearing and framing of issues.

5. Discovery.

6. Production of evidence and final hearing.

7. Arguments.

8. Judgment.

9. Preparation of decree.

10. Execution of decree.

Every suit shall be instituted by presentation of a plaint and (every plaint shall be proved by affidavit) by amendment  of 2002.- Sec.26

  • Every suit shall be instituted by presenting a (plaint in duplicate to the court) by amendment of 1999.
  • Every plaint shall comply the rules contained in O.VI & VII of C.P.C.
  • A plaint shall not deemed to be duly instituted unless it complies the provisions of O.IV R. 1 & 2.
  • Particulars of every suit be entered in a book called register of civil suit.
  • When a suit has been instituted, a summon may be issued to the defendant to appear and answer the claim and may be served in prescribed manner (as described in O.V of C.P.C.) – within 30 days (amendment act of 1999) – S. 27

Section 6 – No Court Shall entertain any suit, the amount or value of the subject matter of which exceeds the pecuniary limits of its jurisdiction.- Pecuniary Jurisdiction (Rule – 1)

Section 9 – The court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either  expressly or impliedly barred.- Jurisdiction relating to subject matter – (Rule 2)

Section 15 – Every suit shall be instituted in the court of the lowest grade competent to try it. – (Rule -3)

Jurisdiction

Jurisdiction means the extent of power of a court to entertain suits and applications. It signify the power, authority, competency of the court to adjudicate the disputes presented before it. It can be referred to be the right of administration justice by means of law. It  means the power of authority of a court to enquiry to the facts to apply the law and to pronounce the  judgement and to carry it into execution.

Territorial Jurisdiction

 Every court has its own specific local territorial limits – fixed geographical boundaries

Pecuniary Jurisdiction 

The pecuniary jurisdiction of a civil court refers to the amount or the value of cases that can be presented before it for adjudication,

Jurisdiction relating to subject matter 

It is power and authority of a court to try a particular type of suit

Original Jurisdiction – In exercise of the original jurisdiction, court tries original suits instituted in that court.

Appellate Jurisdiction – In exercise of the appellate jurisdiction, the court hears appeals from decree and order passed by subordinate courts.

Note :- There are certain court which have only original jurisdiction but some of the courts which have both original and appellate jurisdiction

Section 10. Stay of suit No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.[3]

Explanation : The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.

Section 11. Res judicata No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Product where defendant is suing plaintiff

R.3. Where any of the defendants in an interpleader-suit is actually suing the plaintiff in respect of the subject-matter of such suit, the Court in which the suit against the plaintiff is pending shall, on being informed by the Court in which the interpleader-suit has been instituted, stay the proceedings as against him; and his costs in the suit so stayed may be provided for in such suit; but if, and in so far as, they are not provided for in that suit, they may be added to his costs incurred in the interpleader-suit.

Legislative changes

Under the old Code proceedings in another suit by the defendant against the plaintiff could be stayed only after a decree in the interpleader suit. Under the present rule, such proceedings can be stayed even on the institution of the interpleader suit.

Scope

Before passing an order of stay under Order 35, Rule 3, the Court has to consider the applicability or otherwise of the bar contained in Order 35, Rule 5 & Order 35, Rule 3 in clear terms casts an obligation upon the Court which has seized of an interpleader suit to inform the Court in which suit against plaintiff is pending that an interpleader suit inter parties and in relation to suit property is pending. In other words, the information must come only through Court and none else. O. 35, R. 3 is not applicable to the proceedings before Rent Controller as the said proceedings are not proceedings in a suit. But where ejectment was sought against petitioner tenant of Joint Hindu Family firm by two sets of persons one being sons of landlord to whom the petitioner paid rent and another being purchasers who claimed to have purchased property from widow of the karta, interpleader suit at the instance of tenant petitioner was maintainable and was obligatory on the Court to  stay the ejectment proceedings by the filing of the interpleader suit.[4]

Where in an interpleader suit the original plaintiffs are not claiming any title to the property and in fact the dispute is between the rival defendants, the rights of tenant would be safeguarded by holding that he would go on depositing the rent in the Court, till decision of the suit. An appeal lies from an order under this rule. (O. 43, R. 1 (p).)

Procedure at first hearing

R. 4. (1) At the first hearing the Court may-

(a) declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs, and dismiss him from the suit; or

(b) if it thinks that justice or convenience so require, retain all parties until the
final disposal of the suit.

(2) Where the Court finds that the admissions of the parties or other evidence
enable it to do so, it may adjudicate the title to the thing claimed.

(3) Where the admissions of the parties do not enable the Court so to adjudicate,
it may direct-

(a) that an issue or issues between the parties be framed and tried, and

(b) that any claimant be made a plaintiff in lieu of or in addition to the original
plaintiff,
and shall proceed to try the suiting the ordinary manner

Legislative changes

No change is made in R. 4 by the Amendment Act of 1976 or by Amendment Acts of 1999 and 2002. Sub-rule (3) has been adopted from the English Rules of the Supreme Court, and substituted for cl. (d) of the old S. 473. The change expressly authorizes a Court to make one of the claimants a plaintiff in lieu of, or in addition to, the original plaintiff.

The question whether a party to an interpleader issue shall be treated as plaintiff or defendant must be decided by the real merits of the case and not by the mere form of the issue itself. The Court may in its discretion add a party claiming to be interested in an  interpleader suit upon his own application.[5]

First hearing

The expression “first hearing” in this rule means the date on which the Court goes into the pleadings in order to understand the contentions of the parties. Hence, the plaintiff in an interpleader suit is entitled to apply to the’ Court, as soon as the pleadings have been completed, for being discharged from the suit.[6] Clause (a) of R. 4 (1) of O. 35 provides for substantive relief of a declaration by the Court as to the discharge of the plaintiff from all liability to the defendants. Such a declaration prevents a loss. It prevents a liability being fastened upon the plaintiff.[7]

It is only in cases where the amount is not in dispute and where plaintiff pays into Court the entire amount that the court may declare that the plaintiff is discharged from all liability. Where the amount is in dispute, the Court may declare that the plaintiff is discharged from liability only to the extent of the amount admitted and leave parties to settle their disputes for the balance otherwise or in other proceedings.[8]In an interpleader suit which was not properly instituted or which was instituted malafide or with ulterior motive the discretion of the Court in awarding costs as against the plaintiff is not in any way taken away.

Where order was passed granting permission to open sealed cover in presence of advocate of both parties and opening of packet was considered to be essential in interest of both the parties and defendant also reported no objection if Court permitted the same, objection for opening of sealed cover by defendant at stage of recording evidence on ground that Court had not adopted proper procedure under O. 35, R. 4 cannot be allowed.[9]

Non-appearance of claimants

On the non-appearance of claimants in a properly instituted interpleader suit the proper course for the Court is laid down under sub-rule (1). It is competent to the Court-

(1) to discharge the plaintiff from all liability to the claimants-defendants in respect of the subject-matter in dispute and dismiss him from the suit,

(2) to direct the plaintiff to pay the amount into Court to the credit of the proper claimant after deducting his costs.

(3) to direct the claimants-defendants to apply for payment and when they appear make one of them a plaintiff and raise an issue, and

(4) to restrain by injunction either defendant in a proper case from taking any proceeding against the plaintiff.[10]

Sub-rule (3)

The sub-rule expressly provides that once the suit has proceeded on trial it shall be tried like any other suit in the ordinary manner, thus attracting the provisions of O.1, R.10 and O.6, R.17 of the Code. The Court can, therefore, allow amendment of plaint by inclusion of certain property in the subject-matter of the suit and by addition of certain parties as defendants.[11]

An interpleader suit against a company in liquidation is a suit or proceeding against the company within S. 446 of the Companies Act, 1956 and such a suit cannot be filed or continued without the leave of the Company Court in which liquidation proceedings against the company are pending.

Appeal

An appeal lies from an order under this rule.(0.43, R.1, cl.(p).) An order dismissing the interpleader suit itself or an adjudication upon the claims of the defendants in the interpleader suit will, however, be a decree and appealable as such under Section 96 of the Code. An order adding a defendant to an interpleader suit on his application is one passed under O. 1, R. 10 and not under this rule and, as such, is not appealable.[12]

Agents and tenants may not institute interpleader suit

Rule 5. Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than persons making claim through such principals or landlords.

Illustrations

(a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully obtained from him by A, and claims them from B. B cannot institute an interpleader-suit against A and C.

(b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making the jewels a security for a debt due from himself to C. A afterwards alleges that C’s debt is satisfied, and C alleges the contrary. Both claim the jewels from B, B may institute an interpleader suit against A and C.

Interpleader suits by agents.

This rule declares a prohibition and its concluding part provides an exception. The reason for the rule seems to be that an agent cannot ordinarily dispute the title of his principal. The illustrations to the rule explain the rule so far as agents are concerned. In Illustration (a) C claims adversely to A but not through A, whereas in Illustration (b) C claims through k In order to bring the case within the rule it has to be shown that the plaintiff is agent of the defendant and has instituted the suit for the purpose of compelling the defendant to interplead with persons other than persons making claim through him. Thus, where a Court of Wards instituted an interpleader suit against its wards, some of whom after their father’s death claimed possession of property for the eldest brother by the rule of primogeniture while others claimed it for all the brothers, the rule of primogeniture not being applicable, it was held that the rival claimants being the wards themselves, the suit did not come within the prohibition enacted in R. 5.[13] As to the definitions of agent and principal, see Section 182 of the Contract Act. The relationship between a bank and a customer depositing money in the savings bank account is that of debtor and creditor and not that of agent and principal. Hence, on a dispute as to the ownership of the deposit arising between the customer and a third person, the interpleader suit filed by the Bank would not come within the prohibition of this rule.[14]

Interpleader suits by railway company.

A railway company by accepting goods for carriage does not become the agent of the consignor. It merely enters into an independent contract with the consignor. It can therefore file an interpleader suit against the consignor and another party claiming adversely to the consignor.[15]

Interpleader suits by tenants.

The prohibition that a tenant cannot file an interpleader proceeding against his landlord is based on the principle that he cannot dispute the title of his landlord during the subsistence of the tenancy.[16] A tenant cannot therefore bring a suit against his landlord for the purpose of compelling him to interplead with any person other than a person making claim through such landlord.[17] Thus, where a tenant passed two kabuliats in favour of two persons in respect of the same land and then, being threatened by suits by both of them, instituted a suit praying “that the Court may be pleased to declare which defendant has what right in which of the disputed lands, and in what right the plaintiff holds which of the said lands and under whom”, it was held by the High Court of Calcutta that the suit was not maintainable.[18] In order that a person may be said to claim through a landlord for the purpose of this rule, the right under which such person claims must have arisen after the commencement of the tenancy. Thus, where A leases a certain property to B, B cannot compel A to interplead with C who claims to have purchased the property from A before the grant of the lease.[19]

But the doctrine of estoppel between the lessor and the lessee does not apply to disentitle a lessee to dispute the derivative title of one who claims to have since become entitled to the reversion. Thus an interpleader suit by a lessee against the assignees of the lessor and the Government in whom the leased estate vested by virtue of the Bihar Land Reforms Act, for determining whether the rents and royalties held in deposit are payable to
which of the defendants is maintainable.

The tenant feeling any difficulty in payment of rent can invoke provisions of Order 35 and can file an interpleader suit and can make submission in the same that two persons are treating themselves as landlords and Court should admit that he is a tenant and he should deposit the rent and the Court will decide who is the landlord.

Where on death of landlady, the tenant instituted an interpleader suit for determining as to which heir of landlady she should pay the rent, and she started paying rent to one of the two alleged heirs. However, other heir never claimed himself to be landlord qua the plaintiff tenant. Hence, interpleader suit by tenant denying title of her landlord was not maintainable.

Where A leases certain lands to B and on A’s death two persons claim rent from B, namely A’s heir on the one hand and a person who alleges that A was only a benamidar for X whose heir he is, it has been held that the latter must be regarded as claiming through A and that therefore: B can file an interpleader suit compelling the two claimants to interplead with each other.

Where a mortgagee does not deny an assignment by him of his rights under the bond to X but only contends that it is avoidable one, the mortgagor may treat the assignee as entitled to the money and is not bound to bring an Interpleader suit compelling the mortgagee and X to interplead with each other.[20]

The applicability or otherwise of the bar contained in this rule has to be considered before passing an order of stay under O. 35, R. 3. Eviction proceedings are not liable to be stayed at the behest of tenant who otherwise also is not justified to file an interpleader suit in view of bar of O. 35, R. 5.

Charge for plaintiff’s costs

Rule 6. Where the suit is properly instituted the Court may provide for the costs of the original plaintiff by giving him a charge on the thing claimed or in some other effectual way.

Scope of the rule

This rule provides for the award of costs to the original plaintiff. Such costs when awarded will be deducted from the fund on its being brought to Court or will be a first charge upon the fund or subject-matter.[21] Thus in an interpleader suit which is not properly instituted or which was instituted mala fide or with ulterior motive the discretion of the Courtin awarding costs as against the plaintiff is not in any way taken away.

But the plaintiff will not be entitled to costs which have been unnecessarily incurred. Appeal. An appeal lies from an order under this rule. {0.43, R.1, Cl. (p)}

Frequently Asked Questions

1. Discuss in details fundamental principles as laid down in CPC regarding essentials of a suit?

The term suit is not defined under the in the C.P.C. but by various decisions it can be said that “Suit ordinarily means a civil proceedings instituted by presentation of a plaint. A suit is resulted into decree. Without suit there can not be a decree.

There are four essentials of a suit-

1. Name of Parties (there must be two opposing parties) – In a suit there must be at least two parties the plaintiff & the defendant. There is no limitation with regards to number on either side.

2. Cause of Actions – it is a set of facts or circumstances that a plaintiff is required to prove. A person is party to a suit if there is a cause of action against him. Cause of action means all essential facts constituting the right and its infringement. Every plaint must disclose a cause of action if not, it is the duty of the court to reject the plaint – O.7, R.11

3. Subject matter – there must be a subject matter (with what respect or aspect civil dispute is).

Section-9. Courts to try all civil suits unless barred. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

[Explanation I].A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

[Explanation II]. For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.

4. Relief claimed by the plaintiff – no court will give relief unless relief is specifically claimed by the party

Relief is of two types-

 1) specific relief and

2) alternative relief.

2. Explain Joinder, Non- Joinder and Mis- Joinder of parties in a suit with special reference to necessary and proper parties and its effect.

Order 1 deals with the subject of parties to suit and inter alia with the joinder, mis-joinder and non- joinder of parties, etc.

Joinder of Plaintiffs (Rule 1)

All persons may be joined in one suit as plaintiffs where:-

(a). Any right to relief in respect of, or arising out of, the same act, or transaction or series of acts, is alleged to exist in such persons whether jointly, severally, or in the alternative, and

(b). If such persons brought separate suits, any common question of law or fact would arise.

Rule 2– Where it appears that joined of plaintiff may embarrass or delay the trial of the suit, the court may put the plaintiff to their election or order separate trials or make any such order as may be expedient.

Joinder of Defendants (Rule 3)

All persons may be joined in one suit as defendants where:-

(a) Any right to relief in respect of or arising out of, the same act, or transaction or series of acts, is alleged to exist against such persons whether jointly, severally, or in the alternative, and

(b) If separate suits were brought against such persons, any common question of law or fact would arise.

 Non- Joinder and Misjoinder of Parties (Rule 9)

A case of non- joinder is there where a person who is either a necessary party or proper party has not been joined in the joined.

In case of misjoinder of parties, plaintiffs and defendants have been joined in a suit in contravention of Order 1, Rule 1 and 3 respectively, are neither necessary nor proper party. No order can be passed in misjoinder of necessary parties.

A “necessary party” is one whose presence is indispensible or against whom relief is sought and without whom no effective order can be passed.

A “proper party” is the one in whose absence an effective can be passed, but whose presence would be necessary to give a better, complete and effective order.

 Edited by – Sakshi Agarwal

Quality Check – Ankita Jha

Approved & Published by –  Sakshi Raje

Reference

[1] P.M.Bakshi, Supplement to Mulla’s Code of Civil Procedure (14th ed., Bombay: N.M.Tripati Private Limited, 1992).

[2] Ibid 7

[3]  T.L.VenkataramaAyiar, Mulla on The Code of Civil Procedure (13th ed., Bombay: N.M.Tripathi Private Limited, 1967).

[4](1988) 94 Pun LR 148 (150).

[5](1886) 13 Cal 90 (93, 94) (DB).

[6]AIR 1938 Cal287 (290).

[7](1977) 79 Bom LR 184 (187, 188).

[8]AIR 1966 AndhPra 92 (96).

[9]AIR 2004 AP 165 (167).

[10]AIR 1919 Bom 15 (16).

[11]AIR 1978 Pat 151 (152) (DB).

[12] AIR 1958 Ker 304.

[13]AIR 1954 Punj 103 (104) (DB).

[14]AIR 1957 Mad 745 (748, 749).

[15]AIR 1915 Born 28 (28) (DB).

[16]AIR 1940 Bom414 (415) (DB).

[17]AIR 1941 Cal512 (515).

[18](1910) 37 Cal552 (557) (DB)

[19]AIR 1940 Born 414 (415) (DB).

[20]AIR 1914 Mad 624 (628) (DB).

[21](1893) 18 Born 231 (236).

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Shuvneek Hayer
Shuvneek Hayer is currently pursuing her B.A. LLB(Hons). from University Institute of Légal Studies, Panjab University, Chandigarh. Law had never been her area of interest initially, but gradually as she completed a year in law school, she was drawn to the contemporary issues involving human rights and literature. Inside her law degree, she participated in various national and international level moot court competitions, Debates, MUNs and served as a member of Moot Court Society, UILS. Outside her degree, She got herself involved in a Chennai-based NGO and taught the underprivileged kids on weekends. Later she put forth the idea of bringing up an NGO run by law students where they could address the issues individually and closely interact with the community by fighting for their rights. She has presented various research papers including a few on women rights, child rights, surrogacy rights, communal rights, etc. In her free time, she loves reading contemporary literature, current issues and spending time with family.