Introduction, filing and essentials of suit

An Introduction

INTRODUCTION
Laws can be divided into two groups:
(i) Substantive law, and
(ii) Adjective or procedural law.

Whereas substantive law determines rights and liabilities of parties, adjective or procedural
law prescribes procedure and machinery for the enforcement of those rights and liabilities.

Thus Indian Contract Act, the Transfer of Property Act, Tort, BNS are instances of
substantive law, while BSA, the Limitation Act, the Code of Civil Procedure, the BNSS are
instances of procedural law.

Maxim: “Ubi jus ibi remedium” (Where there is a right, there is a remedy.)

Application in Indian Law:

1. Substantive Law creates rights for instance Law of Tort creates rights.

2. Remedies for violation of these rights is either compensation or injunction.

3.​ Procedural Law enables enforcement of these rights through Code of Civil
Procedure Code (CPC) 1908. CPC provides the procedure to file and conduct a suit CPC
does not create rights, but gives the mechanism to enforce them

Role of CPC – Complementary Nature

CPC plays a complementary role to substantive law. Where substantive law grants rights,
CPC provides the forum and procedure to claim those rights.

“Ubi jus ibi remedium” becomes meaningful *only when an effective procedure exists to
obtain the remedy.

Cause of Action (COA)

A right + its violation = Cause of action. Cause of action enables a person to approach
court

It is procedural law which puts life into substantive law by providing a remedy and
implements the well-known maxim ubi jus ibi remedium (*where there is a right, there is a
remedy') (Ghanshyam Dass v Dominion of India AIR 1984 SC 1004).

Procedure for Criminal and Civil Case

Broadly we have two sets of procedure one for criminal case and other for civil case. Code
of civil procedure provides for the procedure for dealing in civil cases. Civil cases are those
cases in which private rights and obligations of the citizens are involved. The remedies in
civil cases are generally given in the nature of exact fulfilment or damages.
Extent, applicability and commencement
The Code extends to whole of India, except the State of Nagaland and the Tribal areas.

Enacted -21 March 1908

Commenced- 1 January 1909

First Civil Procedure Code: 1859

Major revisions: 1861, 1877, 1879, 1882

Current CPC: Act 5 of 1908

Came into force: 1 January 1909

SCOPE OF THE CODE

Code is exhaustive on the matters specifically dealt in it. But it was not possible for
lawmakers to predict every situation that may come up in civil cases. So, in situations that
are not specifically mentioned in the Code, the court can use its inherent powers to do what
is just, fair and reasonable. These powers are protected under Section 151 of CPC, as
confirmed in the case Manohar Lal Chopra v. Seth Hiralal (1962) SC.

OBJECT OF CIVIL PROCEDURE CODE

An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil
Judicature.

SCHEME OF THE CODE

The Code can be divided into two parts:
(i) the body of the Code containing 158 sections; and (ii) the (First) Schedule, containing
51 Orders and Rules.

Order 21 is the lengthiest order which consist 106 rules. Sections part of the Code lay
down the general principles of law, while Orders and Rules provide the detailed procedure
to implement those principles.

The body of the Code containing sections is fundamental and cannot be amended except
by the legislature. The (First) Schedule of the Code, containing Orders and Rules, on the
other hand, can be amended by High Courts.

The sections and the rules, therefore, must be read together and harmoniously construed,
but if the rules are inconsistent with the sections, the latter will prevail.

Amendments to CPC
Important amendments so far
1976 Amendment
1999 Amendment
2002 Amendment
2015 Amendment

Object of amendments -to keep procedural law in tune with changing needs of society and
even technological advances.

IMPORTANT STAGES OF CIVIL CASES

1. Presentation of plaint.
2. Service of summons on defendant.
3. Appearance of parties
4. Ex-parte Decree
5. Interlocutory Proceedings
6. Filing of written statement by defendant
7. Production of documents by parties (plaintiff and defendant) 8. Examination of parties
9. Discovery and Inspection
10. Admission
11. Framing of issues by the court.
12. Summoning And Attendance Of Witnesses
13. Hearing Of Suits And Examination Of Witnesses
14. Argument
15. Judgment
16. Preparation of Decree
17. Appeal, Review, Revision
18. Execution of Decree

Procedure before filling

The procedure before filing a civil case is to find out the nature and of the case and find out
the various bars which prevent the suit from being tried by the court. Following are some
important procedure before filling:

1.​ To see whether the suit is a suit of civil nature. To that effect we will understand the
nature of the case with the help of sec. 9 of CPC.
2.​ To check the bar of res sub judice, that is to see whether or not the case is already
pending as per sec. 10 of CPC.
3.​ To check the bar of res judicata that is to find out whether or not the case has already
been decided as per sec. 11 of CPC.
4.​ To see whether or not the case is barred by limitation that is it is being filed the
limitation period is over.
5.​ To check whether the relief could have been claimed in earlier suit in respect of the
same cause of action, if yes, it will bar the suit as per Order. 2 rule 2.
6.​ Bar under Order 9 rule 9.

Filing procedure of suit

Case information format

 1.​ Index
2.​ Memo of Parties (Party details)
3.​ Plaint + Court Fees
4.​ Affidavit in Support (Sworn verification of the plaint’s content)
5.​ Interim Applications (if any, e.g., under Order 39 Rules 1 and 2 CPC)
6.​ Affidavit in Support of Application
7.​ Address Form
8.​ List of Documents with supporting annexures
9.​ Vakalatnama (If filed through an advocate)
10.​Second Set of Plaint (for serving the opposite party)​

Below are the pictures of documents used while filing a plaint.

Essentials of Suit

Suit is a civil proceedings, instituted by the presentation of a plaint. (Sec. 26 CPC.)

A suit is a formal legal action filed in a civil court when one person (called the plaintiff)
wants to enforce a legal right against another person (called the defendant), because that
right has been violated.

Suit v Plaint

The plaint is the document (pleading) filed by the plaintiff to initiate a suit. The suit is the
entire set of proceedings that begin from the filing of the plaint.

Essentials of Suit

1. Cause of action
2. Subject matter of suit
3. Parties to suit
4. Relief

1. Cause of action: Reason of filing a civil suit when once right has been violated, it has
right to file a suit

Example 1: Loan Not Repaid

January 1, 2024: A lends ₹1,00,000 to B and B promises to repay by March 1, 2024.

March 1, 2024: B fails to repay the loan.

Cause of Action arises on: March 1, 2024 (Because this is the date when B’s failure
violated A’s legal right.)

Example 2: Breach of Contract

May 10, 2024: A signs a contract with B to deliver goods by June 1, 2024 and receive
₹50,000.

June 1, 2024: A delivers the goods, but B refuses to pay.

Cause of Action arises on: June 1, 2024

(Because that’s when B broke the promise to pay.

Elements of cause of action

Existence of legal right + its violation= Cause of action

●​ Without a cause of action the court will reject the plaint under order 7 rule 11 CPC.

The burden to prove cause of action lies upon the plaintiff.

For instance A sues B for ₹5 lakh saying B borrowed and didn’t return.
​
If A proves this → Court gives a decree for ₹5 lakh.

If A fails to prove that B borrowed any money → Suit is dismissed.

2. Subject Matter of a Suit: The subject matter of a civil suit is the actual thing or right
which is affected or in dispute

Example 1: A is thrown out of a rented flat unlawfully.

Cause of action = Unlawful eviction.

Subject matter = The right to live in the rented flat (tenancy rights).

Example 2: A files a suit to recover ₹2 lakh from B.

Cause of action = B did not repay loan.

Subject matter = The ₹2 lakh loan (money claim).

Two Types of Subject Matter:

Proprietary Subject Matter (related to property)

Related to ownership, possession, land, or property rights

Examples:
●​ Suit for possession of land
●​ Suit for removal of encroachment
●​ Suit for easement rights

Personal Subject Matter (related to personal rights)

Related to personal relationships or obligations

Examples:
●​ Suit for breach of contract
●​ Suit for divorce
●​ Suit for defamation

3. Parties to suit:

i. Plaintiff and Defendant (Plaint) Ordinary civil cases there is a presentation of plaint.
ii. Petitioner and Respondent (Petition) Hindu Marriage Act
iii. Applicant and Respondent (Application) under Indian Succession Act

Remember: In civil cases presence of the parties in court is not mandatory they can
appear through an advocate while in criminal cases it is mandatory for the parties to appear
unless exempted.

Joinder of parties
An act may be done by a single individual and may adversely affect another individual. In
that case, the question of joinder of parties does not arise. The question of joinder of
parties arises only when an act is done by two or more persons or it affects two or more
persons. Thus, if A assaults B and C, or A and B assault C, the question of joinder of
plaintiffs or defendants arises.

(1) Joinder of Plaintiffs – [Order 1 Rule 1 CPC]

When more than one person can file a case together as plaintiffs.

Conditions (Both must be fulfilled):

i. The right to relief (compensation or remedy) arises from the same act or transaction,
and​
ii.There must be a common question of law or fact for all plaintiffs.​

Example 1: A makes a single agreement with B and C to sell 100 tins of oil. A breaks the
agreement.

→ B and C can join as plaintiffs in one suit.

(Same transaction + same question of law)

Example 2: A assaults B and C in one incident.

→ B and C can file one joint suit for damages. (Same tort + same question of law)

Example 3: A agrees to sell 100 tins of oil to B in one deal, and on the same day, 100 tins to
C in a different deal.

→ Separate transactions = B and C cannot file one suit jointly.

(2) Joinder of Defendants – [Order 1 Rule 3 CPC]

When more than one person is made defendant in the same suit.

Conditions (Both must be fulfilled):

i. The right to relief against the defendants arises from the same act or transaction, and ​

ii. A common question of law or fact must arise.​

Example 1: A is injured in a road accident involving a car owned by B and a bus owned by
C. → A can sue B and C together as defendants. (Same incident + common questions)

Example 2: A is assaulted by B and C together in a fight. → A can join B and C as

defendants in one suit.

Example 3: A made 4 separate contracts with B, C, D, and E for 100 tins of oil each.

All failed to supply. → A must file 4 separate suits — these are different transactions.

Why joinder is allowed?

✔️ To avoid multiple suits

✔️ To save time and cost
✔️ To avoid conflicting judgments
If Joinder causes confusion?
The court can:

●​ Order separate trials, or​

●​ Pass judgment in favour of some plaintiffs or against some defendants, if needed.​

(3) Necessary and Proper Parties

Necessary Party
A person without whom the case cannot proceed. The court cannot pass a valid order
without this person.

Test:

1.​ There is a relief claimed against him.​

2.​ No effective decree can be passed without him.​

Examples

Suppose A and B jointly own a house. C files a suit to claim ownership of the house but
only makes A a party, and leaves out B.

B is a necessary party — without B, the court cannot decide who owns the full house.

●​ In partition suits, all co-owners or heirs are necessary parties.​

●​ In a challenge to job selection, selected candidates are necessary parties.

●​ ​

Proper Party
A person who is not essential, but his presence helps the court to decide the matter
completely and fairly.

Example

In the same house dispute, suppose D is a tenant living in that house.

D is a proper party — not essential to decide who owns the house, but helpful in deciding
who will get possession.

Pro forma defendant

A Pro Forma Defendant is a person who is formally added as a defendant in a suit, but:
 ●​ No relief is claimed against him,​

●​ He is added only because his presence is legally required for a complete and
proper decision of the case.​

Example: Co-ownership of Property

●​ A and B are co-owners of a house.​

●​ C illegally occupies the house.​

●​ A wants to file a suit to get possession from C.​

●​ B is not interested in filing the suit, but since he is also a co-owner, the court
needs him to be a party.​

A files the case against C, and also adds B as a pro forma defendant.

✔️ No relief is claimed against B.

✔️ But he is added because he is legally connected to the property.
✔️ This helps avoid future objections like “all owners weren’t party to the suit”.
4. Relief

Substantive law (like Contract Act, Property Law, etc.) gives people legal rights and
remedies. When someone’s right is violated, he goes to court and claim that remedy. That
claimed remedy is called “relief” in the context of a civil suit.​

Example: Breach of Contract

●​ A and B enter into a contract.​

●​ B breaks the contract and doesn’t supply goods.​

●​ A files a civil suit.​

In the suit, A can claim these reliefs:

1.​ Damages – Compensation for loss​

2.​ Specific Performance – Ask court to force B to perform the contract​

3.​ Injunction – Ask court to stop B from selling goods to someone else​
Requiring Affidavit with Pleadings:

As per Sec. 26 CPC of which states:

1 Every suit shall be instituted by the presentation of a plaint or in such other manner as
may be prescribed.

2 In every plaint, facts shall be proved by affidavit.

In the case of Salem Advocates Bar Association, Tamil Nadu v. Union of India, (2005)
SC —

(A 3-judge bench led by Justice Y.K. Sabharwal) — the Supreme Court held:

The requirement of filing an affidavit along with pleadings has been made compulsory to:

●​ Prevent unnecessary and frivolous litigation.​

●​ Place greater responsibility on the deponent (the person verifying) to state only
true facts.​

●​ Prevent false evidence.​

●​ Avoid undue wastage of judicial time.​

●​ Prevent delays in trial proceedings.​