Author – Anshika Mishra,
III Year, Dharmashastra National Law University,
Jabalpur, Madhya Pradesh
There are a total of 19 stages of a Civil Suit in India which are to be governed by Code of Civil Procedure, 1908:
FILING AND INSTITUTION OF SUIT
1. Jurisdiction Determination
The competent court should be determined on facts proving territorial and pecuniary jurisdiction. Section 15 to 20 of the Code governs the aspect of jurisdiction.
Supreme Court in the landmark judgement of Official Trustee v. Sachindra Nath[1], has made the following observation:
“When a court is held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the power to hear and decide the question at issue, the authority to hear and decide the particular controversy that has arisen between the parties.”
It is well-settled that parties cannot consent to confer jurisdiction of a court. In the leading case of A.R. Antulay v. R.S. Nayak[2], Justice Mukharji stated, “This Court, by its directions, could not confer jurisdiction on the High Court of Bombay to try any case for which it did not possess.”
It was further stated:
The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away the right of appeal or to take away the right of appeal. Parliament alone can do it by law and no court, whether superior or inferior or both combined, can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal.
2. Presentation of Plaint/ Institution of Suit
A suit can be instituted by presenting document known as a plaint. Section 26 provides:
“Institution of Suit: (1) Every suit shall be instituted by presenting of a plaint or in such other manner as may be prescribed.
(2) In every plaint, facts shall be proven by affidavit.”
Order VII, Rules 1 to 18 deal with various provisions relating to plaint.
The SC in the judgement of Salem Advocate Bar Association v. Union of India[3], upheld the requirement of affidavit verification with the plaint to prevent misuse of litigation. Also, in the judgement of K.K. Velusamy v. N. Palanisamy[4], the SC emphasized that suits must be properly instituted by following procedural laws, failing which they can be dismissed. The court[5] has also ruled that failure to affix proper court fees can lead to the rejection of the plaint.
ISSUANCE AND SERVICE OF SUMMONS
Service of Summons on defendant
When a suit is instituted, the opposite party known as defendant is intimated to appear in the court on a date mentioned therein for putting up his defence. This intimation is called summons. Section 27 to 29 and Order V of the Code contain the various provisions regarding summons to defendants and the procedure. Order V contains summons to defendant (Rule 1), Requisites of summons (Rules 1 and 2), exemption from personal appearance (Rule 4), contents of summons (Rule 5 to 8) and service of summons (Rules 9 to 30).
With the passage of time and development of technology, the courts have been inclined to use electronic means to serve summons and notices to save time and money. In the case of Central Electricity Regulatory Commission v. National Hydroelectric Power Corp. Ltd[6], the apex court allowed the service of a notice through email but ordered that a copy should also be sent through post. Further, in KSL Industries v. Mannalal Khandelwal[7], the Bombay High Court made a significant remark and held that there is a lot of delays caused in legal proceedings due to unserved summons. Therefore, all practical means should be used to avoid this delay and hence, e-mail can be used to serve summons.
4. Appearance of Parties
On the day fixed in the summons the defendant is required to appear and answer and the parties shall attend the court unless the hearing is adjourned to a future day fixed by the court, if the defendant is absent court may proceed ex-parte. Where on the day so fixed it is found that summons has not been served upon defendant is consequence of failure of plaintiff to pay the court fee or postal charges the court may dismiss the suit (Rule 2 and 5 of Order IX).[8] Where neither the plaintiff nor the defendant appears, the court may dismiss the suit (Rule 3). Such dismissal does not bar fresh suit in respect of same cause of action.
5. Ex-Parte Decree
A decree against the Defendant without hearing him or in his absence or in absence of his defense can be passed under the following circumstances:
1.Where any party from whom a written statement is required fails to present the same within the time permitted or fixed by the court, as the case may be the court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on pronouncement of such judgment a decree shall be drawn up (ORDER 8, RULE 10 CIVIL PROCEDURE CODE.)
2. Where defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of facts contained in the plaint, except against person with disability (ORDER 8, RULE 5(2), CIVIL PROCEDURE CODE.)
2. Where the plaintiff appears and defendant does not appear when suit is called up for hearing and summons is property served the court may make an order that suit will be heard ex-parte (ORDER 9, RULE 6(1)(a) OF CIVIL PROCEDURE CODE)
If an ex-parte decree is passed and the defendant satisfies that he was prevented by sufficient cause then he has the following remedies open:
In UCO BANK V/S. IYENGER CONSULTANCY SERVICES[9], it was observed that the words Sufficient Cause has not been defined and it will depend on facts and circumstances of each case.
This provision applies only for the first hearing and not for the subsequent hearings of the matter.[10] Even while passing an ex-parte order it is the duty of the court to secure the end of justice even in the absence of the defendant.[11]
An ex-parte can be enforced like a bi-parte decree and it has all the forces as a valid decree as held in the case of Panduranga Ramchandra v. Shantibai Ramchandra.[12]
PLEADINGS AND INTERLOCUTORY STEPS
6. Interlocutory Applications and Orders
The period involved between initiation and disposal of litigation is substantially long. The intervention of the court may sometimes be required to maintain the position as it prevailed on the date of litigation. In legal parlance it is known as “status quo. It means preserving existing state of things on a given day.
In that context interlocutory orders are provisional, interim, temporary as compare to final. It does not finally determine cause of action but only decides some intervening matter pertaining to the cause.
1.Arrest and attachment before judgment (Order 38)
2.Temporary injunctions and interlocutory orders (Order 39)
3.Appointment of receiver (Order 40)
4. Appointment of commissioner (Order 26)
The defendant is required to file written statement of his defense at or before the first hearing or such time as may be allowed.
If defendant disputes maintainability of the suit or takes the plea that the transaction is void it must be specifically stated. A general denial of grounds alleged in the plaint is not sufficient and denial has to be specific. The denial should not be an evasive denial but it must be on point of substance. Every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading shall be deemed to be admitted. (ORDER 8 RULE 5 OF CPC)
Before amendment 2002 in C.P.C. there was no time limit to file written statement by defendant. By amendment 2002 under order 8 rule 1 of C.P.C. defendant has to present written statement within 90 days from the date of service of summons on him. Under this rule discretion is given to court that if defendant fails to file written statement within a period of 30 days he shall be allowed to file the same on such other day which may be specified by the court but such period shall not be later than 90 days from the date of service of summons.
By Amendment 1999 in rule 1-A of order 8 duty is casts upon the defendant to produce documents on which he bases his defense or other documents which are in his possession along with a list. Such list of documents is supplied with written statement.
In Salem Advocate Bar Assn. V. Union of India (2005)[16], the Supreme Court clarified that under Rule 10 of CPC, the court has wide powers to ‘make such order in relation to the suit as it thinks fit.’ The order extending the time to file a written statement cannot be made routinely. The time can be extended only in exceptionally hard cases.
(1). DISCOVERY, INSPECTION AND PRODUCTION
8. Production of documents by parties (plaintiff and defendant)
After filing written statement by the defendant the next stage of the suit is documents. On this stage both parties have to file documents in court which are in their possession or power. If parties relay on some documents which are not in their possession in that case they have to apply to court for issue of summons to authority or persons in whose possession these documents are. The parties have to deposit in court cost of such production of documents. (Process fees and bhatta).
Examination of parties is an important stage after appearance. At first hearing of the suit the court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement. Such admissions and denials shall be recorded. The examination may be an oral examination. When a party, if the pleader of the party who appears, refuses or is unable to answer any material question court may direct the concerned party should remain present in the court. If the party does not remain present court may pass such orders as deemed fit (ORDER X OF CPC.)
In this landmark case, the Supreme Court ruled that a civil case could be disposed of at the first hearing if the parties had admitted or denied the relevant facts, and no further issues remained for adjudication. This judgement underscores the importance of clarifying issues early in the litigation process.
The Supreme Court in this case emphasised that Rule 2 (oral examination) is not meant to record evidence but to identify and clarify the issues in controversy. The court also held that the examination of a party or its companion is a discovery tool, not a means to secure admissions.
10. Discovery and Inspection
The purpose of discovery and inspection of document and facts is to enable the parties to ascertain the facts to be proved. With the leave of the court the plaintiff or defendant may deliver interrogatories in writing for examination of opposite parties which are required to be answered and which are related to the matter. (Order XI)
The Supreme Court ruled that the burden of proving privilege is on the party refusing disclosure.
The court held that non-compliance with an inspection order may lead to an adverse presumption against the party.
11. Admission/ Denial of Documents
Either party may call upon the other party to admit within seven days from the date of service of the notice, any document saving all just exception. In case of refusal or neglect to admit after such notice, the cost of proving such document shall be paid by the party, so neglecting or refusing whatever be the result of the suit may be, unless the court otherwise directs and no cost of proving any such document shall be allowed unless such notice is given, except where the omission to give the notice is in the opinion of the court a saving of expenses. The above procedure is rarely followed by the advocates of parties. (Order XII)
In Karan Kapoor v. Madhuri Kumar[23], the Court held that by virtue of Order XII, the courts can pass a judgement based on clear and categorical admissions by the parties.
12. Framing of Issues by the Court
The next stage is framing issues. The job of framing issues is exclusively assigned to a judge. Issues are framed considering provisions of order 14 rule 1 of C.P.C.
Rule 1 sub rule (1) states, “Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other.”
Sub rule (2) states, “Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defense,”
Sub rule (3) States “Each material proposition affirmed by one party denied by other shall form subject of distinct issues.”
Issues of fact
Issues of law.
The Supreme Court held that courts must carefully frame issues to cover all disputed points, failing which the trial may be rendered ineffective.
13. Summoning and Attendance of Witnesses
On the date appointed by the court and not later than 15 days after the date on which issues are settled parties shall present in court a list of witnesses whom they propose to call either to give evidence or to produce documents. In the case of Kokkanda B. Poondacha v. K.D. Ganapathi[25], the Supreme Court emphasized the necessity of adhering to this timeline to prevent undue delays in proceedings.
14. Hearing of Suits and Examination of Witnesses
The plaintiff is entitled to have first right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of relief. In such case defendant has the right to begin.
The plaintiff has to state his case in front of the judge. The plaintiff has to submit the evidence that was earlier marked. If any evidence was not marked earlier then it will not be considered by the court. Then the plaintiff will be cross-examined by the defendant’s Advocate. The witnesses from plaintiff’s side also have to appear in the court, who are also cross-examined by the defendant’s lawyer.
The defendant also presents his side of the story supported by his 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.
As per Rule 1(2), a party desirous of obtaining a summons for the attendance of any person must file an application stating the purpose for which the witness is proposed to be summoned. This requirement ensures that the court understands the relevance of the witness’s testimony to the matters at hand. In Ramsiya vs. Anuradha[26], the Madhya Pradesh High Court held that the application must clearly specify the necessity of the witness to the case.
The case of Arulmighu Dhandayuthapani Swamy Temple v. State of T.N.[27], highlighted the importance of promptly compensating witnesses to encourage their cooperation.
In Manohar Lal Chopra v. U.G. Choudhury[28], the Supreme Court held that non-attendance without valid reason could lead to contempt proceedings, emphasizing the seriousness of complying with court summons.
15. Argument
As soon as evidence of both side is over then the suit is kept for argument. Once the evidence has been submitted and cross-examination is conducted by the plaintiff and defendant, both sides are allowed to present a summary of their case and evidence to the judge in the Final argument session.
16. Judgement
Judgment means the statement given by the judge on ground of which a decree is passed.
The court after the case has been heard shall pronounce judgment in open court either within one month of completion of arguments or as soon thereafter as may be practicable, and when the judgment is to be pronounced judge shall fix a day in advance for that purpose.
As per Rule 4 of Order XX in the Code of Civil Procedure, 1908, judgements from Small Causes Courts are considered sufficient if they include the points to be determined and the corresponding decisions. For judgements from other courts, the following elements should be included:
In the case of Balgees Begum v. Govt. of A. P.[29], the Andhra Pradesh High Court clarified that Rules 1, 2 and 3 of Order XX suggest that a judgement is considered valid, effective and operative once it is dictated and pronounced by the judge in open court, even if the judge passes away before signing it. This underscores the significance of the pronouncement itself in establishing the validity of a judgement in CPC.
In the case of Alok Kumar v. S.N. Sharma[30]: Judges should use dignified and restrained language, especially when criticising other judges or subordinate courts. Making remarks against the character of someone not involved in the proceedings is not advisable.
In A. M. Mathur v. Pramod Kumar[31]: No disparaging or defamatory remarks should be made against any party or person.
Once the judgment is delivered by a judge a decree is to be prepared by concerned clerk.
The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, their registered addresses, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.
In Madan Naik v Hansubala Devi[32], the Supreme Court held that if the matter isn’t judicially determined, it’s not a decree.
In, Shankar V. Chandrakant[33], the Supreme Court stated: A preliminary decree is one which declares the rights and liabilities of the parties leaving the particular outcome to be figured out in further proceedings. Then, as a results of the further inquiries, conducted pursuant to the preliminary decree, the rights of the parties are fully determined and a decree is passed in accordance with such determination which is final. Both the decrees are within the same suit.
Right to appeal get vested on the date suit is instituted. A new right to appeal gets created can’t be availed by the parties to a proceeding which commenced earlier during the creation of new rights.
A review application is maintainable only when the following conditions are satisfied:
of a new and important matter of evidence, which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time of decree or on account of some mistake, apparently on the face of the record, or for any sufficient reason, desires to obtain a review of such decree. The other side will be granted an opportunity to be heard, when any review application has been granted.
The High Court may call for the record of any case which has been decided
by subordinate court and in which no appeal lies, if such subordinate court appears –[38]
irregularity.
The HC under Revisional jurisdiction is fully competent to examine the record of any subordinate Court and, if any jurisdictional error towards the passing of any order is found, then to cure the same.[39]
Execution is the medium by which a decree- holder compels the judgment-debtor to carry out the mandate of the decree or order as the case may be. It enables the decree-holder to recover the fruits of the judgment. The execution is complete when the judgment-creditor or decree-holder gets money or other thing awarded to him by judgment, decree or order.
In Ghan Shyam Das v. Anant Kumar Sinha[40], the Supreme Court, while dealing with provisions of the code that deal with the execution of orders and decree, stated that the Code contains elaborate provisions that deal with questions of execution of a decree in all aspects.
Similarly, in the case of Pratibha Singh v. Shanti Devi Prasad[41], the Supreme Court held that the executing Court can correct the decree as per Section 152 of the Civil Procedure Code, in order to make the decree executable. The Court had gone on to say that a decree of a competent Court should not, as far as possible, be allowed to be defeated simply due to accidental slip or emotions.
[1] AIR 1969 SC 823.
[2] AIR 1988 SC 1531
[3] AIR 2005 SC 3353.
[4] 2011 AIR SCW 2293.
[5] Madan Lal v. Shyamlal, 2002
(1) ALT 46.
[6] (2010) 10 SCC 280.
[7] 2005 CRILJ 1201.
[8] Begum Para v. Luiza Matilda
Fernandes, (1982) 84 BOM LR 95
[9] 1994 (SCC) 399 (SUPPLE.).
[10] Sangram Singh v. Election
Tribunal, AIR 1955 SC 425.
[11] Maya Devi v. Lalta Prasad, AIR
2014 SC 1356.
[12] 1989 AIR SC 2240.
[13] 1964 AIR 993.
[14] 1996 SCC (3) 212.
[15] Cr. Misc. No. 33116 of 2009.
[16] AIR 2005 SC 3353.
[17] 2018 SCC OnLine Jhar 1572.
[18] 2007 INSC 811.
[19] 2018 0 Supreme(Jhk) 1161.
[20] 1958 SCR 595.
[21] AIR 2010 SC 2809.
[22] (1972) 2 SCC 427.
[23] 2022 INSC 660.
[24] 2001 (2) SCC 652.
[25] (2011) 12 SCC 600.
[26] (2016) 4 MP LJ 123.
[27] (1992) 1 MLJ 1.
[28] AIR 1957 SC 357.
[29] (AIR 1994 A.P. 316).
[30] (AIR 1968 SC 453).
[31] (AIR 1990 SC 1737).
[32] AIR 1983 SC 676.
[33] AIR 1995 SC 1211.
[34] AIR 1927 PC 242.
[35] AIR 1957 SC 540.
[36] (1975) 1 SCC 674.
[37] (1978) 4 SCC 36.
[38] 2022 CLC 1552.
[39] 2016 CLCN 67 Lahore High Court.
[40] AIR 1991 SC 2251.
[41] (2003) 2 SCC 330.
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