Chapter 1
Introduction
According to
section 26 of the Code of the Civil Procedure[1]
every suit shall be instituted by the presentation of a plaint. Once the plaint
is ready, it is to be filed in the court which has both territorial and
pecuniary jurisdiction. According to sec. 15 of the CPC a suit triable by a
civil court must be instituted in the court of the lowest grade competent to
try it. Once a plaint is taken to the court, the court officer, i.e. the Sheristadar
shall examine, inter alia, if the relief claimed has been properly valued and
the court fees paid etc. After such examination he puts a serial number of the
suit and will enter the suit into a register called the register of the suits.
The date of filing shall also be stamped on the plaint as soon as it is filed.
Once this is done a civil suit is said to have been started. The machinery of a
court is set in motion by the presentation of a plaint, which is the first
stage in a civil suit.[2]
Rules
1 to 8 of Order 7 relate to particulars in a plaint. Rule 9 lays down procedure
on plaint being admitted. Whereas Rule 10 provides for return of plaint, Rules
11 to 13 deal with rejection of plaint. Rules 14 to 18 contain provisions
relating to production of documents. Order 3 enables a party to appear in a
court either in person, or through a recognized pleader. Order 5 deals with
summons to a defendant. It contains provisions regarding issuance and service
of summons. Order 12 deal with the Admission of plaint, and, Order 19 deal with
the Affidavit, and also discuss about the schedule of the property.
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Chapter 2
Particulars
of the Plaint
2.1 What is Plaint?
The expression
‘plaint’ has not been defined in the code. However, it can be said to be a
statement of claim, a document, by presentation of which the suit is
instituted. Its object is to state the grounds upon which the assistance of the
court is sought by the plaintiff. It is a pleading of the plaintiff.[3]
2.2 Particulars of Plaint
Every plaint should contain the following
particular:
i.
The name of the court in which the suit is brought;
ii.
The name, description and place of residence of the
plaintiff and defendant;
iii.
Where the plaintiff or defendant is a minor or a person
of un sound mind, a statement to that effect;
iv.
The facts constituting the cause of action and when it
arose;
v.
The facts showing that the court has jurisdiction;
vi.
A statement of the value of the subject- matter of the
suit for the purpose of jurisdiction and court-fees;
vii.
The relief claimed by the plaintiff, simply or in the
alternative;
viii.
Where the plaintiff files a suit in a representative capacity, the facts showing
that the plaintiff has an actual existing interest in the subject matter and
that he has taken steps that may be necessary to enable him to file such a
suit;
ix.
Where the suit is for recovery of money, the precise
amount claimed;
x.
Where the plaintiff has allowed a set-off or
relinquished a portion of his claim, the amount so allowed or relinquished;
xi.
Where the suit is for accounts or mesne or for movables in the possession of
the defendant or for debts which cannot be determined, the approximate amount
or value thereof;
xii.
Where the subject-matter of the suit is immovable
property a description of the property sufficient to identify it, e.g. boundaries,
survey numbers, etc;
xiii.
Where the suit is time-barred, the ground upon which
the exemption from the law of limitation is claimed;[4]
Let us consider some important aspects in detail:
1. Parties to suit[5]
There must be
two parties in every suit, namely, the plaintiff and the defendant. There may,
however, be more than one plaintiff or more than one defendant. But there must
at least one plaintiff and one defendant in every suit. All particulars, such
as name, father’s name, age, place of residence, etc, which are necessary to
identify the parties, must be stated in the plaint.
2. Cause of action[6]
Every
suit presupposes the existence of a cause of action against defendant because
if there is no cause of action the plaint will have to be rejected. Even though
the expression “cause of action’’ has not been defined in the Code, it may be
described as “a bundle of essential facts, which it is necessary for the
plaintiff to prove before he can succeed’’ or “which gives the plaintiff right
to relief against the defendant” Thus “cause of action” means every facts,
which it is necessary to establish to support a right or obtain a judgment. To
put it differently, cause of actions gives occasion for and forms the
foundation of the suit. The classic definition of the said expression is found
in the case of Cooke v. Gill, wherein
Lord Brett observed:
“Cause of action means every fact which
it would be necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgment of the court’’.
Cause
of action has nothing to do with the defense which may be set up by the
defendant, nor does it depend upon the character of the relief prayed for by
the plaintiff. It refers entirely to the grounds set fourth in the plaint as
the cause of action. It is also necessary for the plaintiff to state
specifically when such cause of action arose. This will enable the defendant as
well as the court to ascertain from the plaint whether in fact and in law the
cause of action as alleged by the plaintiff in the plain did arise or not.
The
Supreme Court stated, the object underlying Order 7, Rule 1, which require that
the plaint shall contain the particulars about the facts constituting the cause
of action and when it arose, is to enable the court to find out whether the
plaint discloses the causes of action because the plaint is liable to be
rejected under Order 7, Rule 11, CPC if it does not disclose the cause of
action. The purpose behind the requirement that the plaint should indicate when
the cause of action arose is to help the court in ascertaining whether the suit
is not barred by limitation. Any error on the part of the plaintiff in
indicating the date on which the cause of action arose would be of little
consequence if the cause of action had arisen on the date on which the suit was
filed and the suit was within limitation from the said date. The error in
mentioning the date on which the cause of action had arisen in the plaint in
such a case would not disentitle the plaintiff from seeking relief from the
court in the suit.[7]
3. Valuation
The plaintiff
must state in the plaint the valuation of the subject- matter of the suit for the purposes of pecuniary
jurisdiction of the court and court fees, sometimes, the valuation of the
subject-matter for both the purposes may be the same, as, for example, in a
suit for recovery of money. But sometimes, to valuations may differ, as, for
example, in a suit for declaration or in a suit for injunction or for
possession of immovable property. In such a case, the plaintiff should
distinctly state the valuation of the suit for the purpose jurisdiction of the
court and for the purpose of court fees.[8]
4. Limitation: Rule 6
Rule 6 provides
that where the suit is barred by limitation, is necessary for the plaintiff to
show the ground of exemption in the plaint. But the proviso added by the
amendment act of 1976 empowers the court to permit the plaintiff to rely on a
new ground for exemption if it is not inconsistent with the grounds mentioned
in the plaint.[9]
5. Jurisdiction of the court
The plaint must
state all the facts showing how the court has pecuniary and territorial
jurisdiction over the subject-matter of the suit. When the jurisdiction of a
court to entertain the suit is disputed by the defendant, the court may frame
the issue to that effect and decide the same before deciding other issues.[10]
6. Relief: Rules 7 - 8
Every plaint
must state specifically the relief claimed by the plaintiff either simply or in
the alternative. Where the relief is founded on separate and distinct grounds,
they should be so stated. Where the plaintiff is entitled to more than one
relief in respect of the same cause of action. It is open to him to claim all
or any of such relief’s. But if he omits, accepts with the leave of the court,
to sue for any particular relief, he will not afterwards be allowed to sue for
the relief so omitted.
The
court must have regard for all the relief and look at the substance of the
matter and not at its form. As, for example, prayer for costs need not be added
in the plaint since as a general rule costs follow the event, and the court
bound to decide the point. Similarly, in a suit for possession and manse
profits, the court can grant future mesne profits even if they are not
specifically asked for.
The
plaintiff should state specifically the relief which he claims either simply or
in the alternative. Where a question arises as to whether the plaintiff has
asked for a particular relief in his plaint, the plaint must be read as a whole
and the substance of the matter and not the form thereof should be considered.
The
general rule no doubt is that the relief should be founded on pleadings made by
the parties. But where the substantial matters relating to the title of both
parties to the suit are touched, though indirectly or even obscurely, in the
issues, and evidence has been led about them, then the argument that a
particular matter was not expressly taken in the pleadings would be purely
formal and technical and cannot succeed in every case. What the court has to
consider in dealing with such an objection is, did the parties know that the
matter in question was involved in the trial, and did they lead evidence about
it? If it appears that the parties did not know what the matter was in issue at
the trial and one of them has had no opportunity to lead evidence in respect of
it that undoubtedly would be a different matter. The suit cannot be dismissed
merely on the ground that the plaintiff has claimed a larger relief than he is
entitled to. But the lesser relief to which the plaintiff is entitled will be
granted in his favor. But the court cannot grant a larger relief to the
plaintiff than that claimed by him even if he is entitled to it unless he gets
his plaint amended with the leave of the court.[11]
7. Events happening after institution of suit
The basic rule
is that the rights of the parties should be determined on the basis of the date
of filing of the suit. Thus, where the plaintiff has no cause of action on the
date of the filing of the suit, he will not ordinarily be allowed to take
advantage of the cause of action arising subsequent to the filing of the suit.
Similarly, no relief will be refused to the plaintiff by reason of any
subsequent even if at the date of the institution of the suit, he has a
substantive right.
This,
however, does not mean that no events happening after the institution of a suit
can be taken into account at all. In appropriate cases, it is not only the
right but the duty of the court to consider the changed circumstances. Where it
is shown that the original relief claimed by the plaintiff has, by reason of
subsequent change in the circumstances, become useless or inappropriate or
where it is necessary to take notice of changed circumstances to shorten
litigation, a new relief may serve the purpose better or that a relief is
required to be reshaped or molded in the light of change in facts or in law to
do full and complete justice between the parties, the court is bound to depart
from the above rule and mould the relief in the light of alter circumstances.
Administration
of justice demands that any change either in fact or in law must be taken
cognizance of by the court but that must be done in a cautious manner of
relevant facts. Therefore, subsequent events can be taken cognizance of if they
are relevant and material. It is basic to our processional jurisprudence that
the right to relief must be judge to exist as on the date a suitor institutes
the legal proceeding. Equally clear is the principle that procedure is the
handmaid and not the mistress of the judicial process. If a fact, arising after
the lies has come to court and has a fundamental impact on the right to relief
or the manner of molding it, brought diligently to the notice of the tribunal,
it cannot blink at it or be blind to events which stultify or render inept the decrial
remedy. Equity justifies bending the rules of procedure, where no specific
provision or fair play is violated, with a view to promote substantial
justice-subject, of course, to the absence of other disentitling factors or
just circumstances. Nor can we contemplate any limitation on this power to take
note of updated facts to confine it to the trial court. If the litigation ponds,
the power exists, absente of other special circumstances repelling resort to
that course in law or justice. Rulings on this point are legion, even as
situations for applications of this equitable rule are myriad.[12]
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Chapter 3
Recognized Agent
or Pleader: Order 3
3.1 Appointment of pleader: Rule 4
Pleader is
defined in the code as any person entitled to appear and plead for another in
court and includes an advocate, a vakil and an attorney of a high court. Rule 3
prescribes the manner of the appointment of a pleader and also the limit up to
which such appointment remains in force. It provides that a pleader can be
appointed by a document in writing, known as vakalatnama or vakalatpatra,
signed by the party or by his recognized agent or by some other person, duly
authorised by him. Every such appointment shall be filed in court and deemed to
be in force until the determination of all proceedings in the suit, or until
determinate by the client or the pleader, or until the client or pleader dies,
or until the duration for which he is engaged is over.[13]
3.2 Status of pleader
The legal
profession is essentially a service-oriented profession. The ancestor of
today’s lawyer was a spokesman who rendered service to needy members of society
without regard to remuneration. The relationship between a lawyer and his
client is of trust and confidence. Bring a responsible officer of the court; a
lawyer owes responsible conduct not only to his client but also to the other
side and the court and to society at large. He is essentially an adviser to his
client and is rightly called a ‘counsel’ in some jurisdictions. He demeans
himself if he acts merely as a mouthpiece of his client.
3.3 Authority of pleader
A pleader stands
on the same footing in regard to his authority to act on behalf of his clients.
There is inherent in the position of counsel and implied authority to do all
that is expedient, proper and necessary for the conduct of the suit and the
settlement of disputes. This power, however, must be exercised bona fide and
for the benefit of his client. Secondly, power is one thing and prudence
another and indeed the latter sometimes bears upon the former. The lawyer must
be above board, especially if he is to agree to an adverse verdict. It is
prudent a proper to consult his client and take his consent if there is time
and opportunity. He should not act on implied authority except when warranted
by exigency of circumstances and a signature of the party can not be obtained
without undue delay.
3.4 Duties of pleader
Lawyers are
custodians of civilizations. They have to discharge there duties with dignity,
decorum and discipline. They are not mere agents of there clients but are
officers of the court and there expected to assist in the administration of
justice. As it is said, a counsel has a tripartite relationship, one with the
public, another with the court and the third with his client. That is a unique
feature. Other professions or callings may include one or two of these
relationships but no other has the triple duty. Counsel’s duty to the public is
unique in that he has to accept all work from all clients in courts in which he
holds himself out as practicing, however unattractive the case of his clients.
A counsel has the duty and right to speaks freely and independently without
fear of authority, without fear of the judges and also without fear of a stab
in the back from his own client, to some extent, he is a minister of justice. [14]
3.5 Responsibilities of pleader
No
one expects a lawyer to be subservient to the court while presenting the case
of his client and not to put forward his arguments merely because the court is
against him. On the contrary, that is the moment when he is expected to put
fourth his best efforts to persuade the court. But if the lawyer finds in spite
of his efforts, that the court against him, he should not be discourteous to
the court nor should he use disrespectful or derogatory language. The lawyer is
not in titled to indulge in unbecoming conduct either by showing his temper or
using unbecoming language.
The legal
profession is a solemn and serious occupation. It is a noble calling and all
those who belong to it are its honorable members. Although the entry to the
profession can be had by acquiring merely the qualification of technical
competence, the honor as a professional has to be maintained by its members by
there exemplary conduct both in an outside the court. A process served on the
recognized agent or a pleader of the party or left at the office or residence
of the pleader will be considered as valid and proper.[15]
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Chapter 4
Return and Rejection of Plaint
4.1 Return of plaint
The plaint shall
at any stage of the suit be returned to be presented to the court in which the
suit should have been instituted.[16]
This is done to ensure the jurisdiction of the court. On returning a plaint the
judge shall endorse thereon the date of its presentation and return, the name
of the party presenting it, and a brief statement of the reason for returning
it. Where at any state of the suit, the court finds that it has no
jurisdiction, either territorial or pecuniary or with regard to the
subject-matter of the suit, it will return the plaint to be presented to the
proper court in which the suit ought to have been filed.
Rule
10A prescribe the procedure to be followed by a court before the plaint is
ordered to be returned to be presented to the proper court. It is inserted to
obviate the necessity of serving the summons on the defendants where the return
of plaint is made after the appearance of the defendants in the suit. An
appellate court can also return the plaint to be presented to the proper court.
The judge returning the plaint should make endorsements on it regarding (i) the
date of presentation; (ii) the date of return; (iii) the name of the party
presenting it; (iv) reasons for returning it.
When
the plaint is filed the proper court, after getting it back from the wrong
court, it cannot be said to be continuation of the suit. As suit must be deemed
to commence when a plaint is filed in the proper court. The order returning the
plaint is appealable. The conversion of the suit from one file to another does
not involve a change in the nature and character of the suit so as to bar
amendment of the plaint. The court had ample jurisdiction to allow the
amendment and then to return the amended plaint to the plaintiff for
presentation to the proper court.[17]
4.2 Return of plaint in a matter relating to person in the service of
the republic
Amendment replacing a cause of action, after it had ceased to exist, by a
new cause of action so as to change the nature of the suit and the cause of
action will not be allowed, and if allowed, cannot relate back to the date of
filing the suit. Furthermore, the jurisdiction of the civil court having been
vested on the Administrative Tribunal by the promulgation of special statute
the jurisdiction of the civil court in respect of bank employees has been
ousted, and in that view of the matter, the plaint was rightly returned by the
civil court for presentation to the proper Tribunal having jurisdiction.[18]
4.3 Suit under Admiralty jurisdiction when not maintainable
Since the plaintiff is neither the owner nor consignee nor assignee of
any bill of lading of any goods and since no damage was done to any goods of
the plaintiff on board by the defendant, the plaintiff insurer has no locus standi to invoke the jurisdiction
of the Admiralty Court under section 6 of
the Admiralty Court Act. The plaint is returned to the plaintiff with liberty
to file it in appropriate court if not other wise barred.[19]
4.4 Rejection of plaint: Rule 11
The plaint will
be rejected in the following cases:
(i)Where plaint does not disclose
cause action:
If the plaint
filed by the plaintiff does not disclose any clause of action, the court will
reject it.
The
power to reject a plaint on this ground should be exercised only if the court
comes to the conclusion that even if all the allegations set out in the plaint
are proved, the plaintiff would not be entitled to any relief. In that case,
the court will reject the plaint without issuing summons to the defendants. The
reading of the plaint should be meaningful and not formal. But where the plaint
does not disclose cause of action, clever drafting, ritual of repeating words
or creation of an illusion cannot insert a cause of action in plaint.[20]
(ii) Where relief claimed is
undervalued:
Where the relief
claimed by the plaintiff is undervalued and the valuation is not corrected
within the time fixed or extended by the court, the plaint will rejected. In
considering the question whether the suit is properly valued or not, the court
must confine its attention to the plaint only and should not look at the other
circumstances which may subsequently influence the judgment of the court as to
the true value of the relief prayed for.[21]
(iii) Where plaint is
insufficiently stamped
Sometimes the
relief claimed by the plaintiff is properly valued, but the plaint is written
upon a paper insufficiently stamped and the plaintiff fails to pay the
requisite court-fees within the time fixed or extended by the court. In the
case, the plaint will be rejected.
(iv) Where suit is barred by law
Where
the suit appears from the statements in the plaint to be barred by any law, the
court will reject the plaint. For instance, where in a suit against the
government, the plaint does not state that a ‘notice’ as required by section 80
of the Code has been given; the plaint will be rejected under this clause. But
where waiver of such notice is pleaded, the court cannot reject the plaint
without giving the plaintiff an opportunity to establish that fact. The plaint
has to be field in duplicate. If the said requirement is not complied with the
plaint will be rejected. Where the plaintiff fails to comply with the
provisions of rule 9, plaint will be rejected.
(v) Other grounds including appeal
The grounds for
rejection of plaint specified in rule 11 of order 7 are not exhaustive. On
other relevant grounds also a plaint can be rejected. Thus, if the plaint is
signed by a person not authorised by the plaintiff and the defect is not cured
within the time granted by the court, the plaint can be rejected. Where a
plaint is rejected by a court, the judge will pass an order to that effect and
will record reasons for such rejection. If the plaint is rejected on any of the
above grounds, the plaintiff is not thereby precluded from presenting a fresh
plaint in respect of the same cause of action.
An
order rejecting a plaint is a deemed “decree” within the meaning of section
2(2) of the code, and, therefore, appealable.[22]
4.5 Documents relied on in plaint
Rules 14 to 17
deal with the production of documents by the plaintiff. Rule 14 enjoins the
plaintiff to produce at the time of the presentation of a plaint copies of all
documents on which he sues or seeks to rely. It also provides for the
consequences of non-production of documents. It lays down that a document which
ought to be produce in the court by the plaintiff when the plaint is presented
or to be entered in the list to be added or annexed to the plaint, and is not
produce or entered accordingly, shall not, without the leave of the court, be
received in evidence on his behalf at the hearing of the suit.
This provision, however, does not apply to the following documents:
i.
Documents reserved for the purpose of cross-examination
of the plaintiff’s witnesses; or
ii.
Documents handed over to a witness merely to refresh
his money.[23]
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Chapter 5
Issue and
service of summons
5.1 Meaning
When the
plaintiff files a suit, the defendant has to be informed that the suit has been
filed against him, and that he is required to appear in the court to defend it.
The intimation which is sent to the defendant by the court is technically known
as Summons. Every summons shall be signed by the judge or such officer
appointed by him and shall be sealed with the seal of the court, and must be
accompanied by a plaint.
5.2 Summons to defendant
Order 5 deals
with summons to a defendant while Order 16 deals with summons to witnesses.
When a suit has been duly filed by presentation of a plaint, the court must
issue summons to the defendant calling upon him to appear on a day specified
therein and answer the claim of the plaintiff within thirty days from the institution
of the suit by filing a written statement.[24]
5.3 Appearance of defendant
A defendant to
whom a summons has been issued, may appear (1) in person; or (2) by a pleader
duly instructed and able to answer all material questions relating to the suit;
(3) by a pleader accompanied by some person able to answer all such questions.
The court, however, may order the defendant or plaintiff to appear in person.[25]
5.4 Exemption from appearance in person
No party shall
be ordered to appear in person-
(a)
unless he resides (a) within the local limits of the
court’s ordinary original jurisdiction; or (b) outside such limits, but a place
less than (i) 50 miles; or (ii) 200 miles (where public conveyance is
available) from the court-house;
(b)
Who is a woman not appearing in public; or
(c)
Who is entitled to exemption under the Code.[26]
5.5 Contents of summons
The summons must
contain a direction whether the date fixed is for settlement of issues only or
for final disposal of the suit. In the latter case, the defendant should be
directed to produce his witnesses. The court must give sufficient time to the
defendant to enable him to appear and answer the claim of the plaintiff on the
day fixed. The summons should also contain an order to the defendant to produce
all documents or copies thereof in his possession or power upon which he
intends to rely on in support of his case. The service of summons is of primary
importance as it is a fundamental rule of the law of procedure that a must have
a fair and reasonable notice of the legal proceedings initiated against him so
that he can defend himself. The Code prescribe five principle modes of serving
a summons to a defendant-
a. Personal or direct service
Rule 10 to 16
and 18 deal with personal or direct service of summons upon the defendant. This
is an ordinary mode of service of summons. Here the following principle must be
remembered:
i.
Wherever it is practicable, the summons must be served
to the defendant in person or to his authorized agent.
ii.
Where the defendant is absent from his residence at the
time of service of summon and there is no likelihood of him being found at his
residence within a reasonable time and he has no authorized agent, the summons
may be served on any adult male or female member of the defendant’s family
residing with him. A servant, however, cannot be said to be a family member.
iii.
In a suit relating to any business or work against a
person, not residing within the territorial jurisdiction of the court issuing
the summons, it may be served to the manager or agent carrying on such business
or work.
iv.
In a suit for immovable property, if the service of
summons cannot be made on the defendant personally and the defendant has no
authorized agent, the service may be made on any agent of the defendant in
charge of the property.
v.
Where there are two or more defendants, service of
summons should be made on each defendant.
b. Service by court
Summons to
defendant residing within the jurisdiction of the court shall be served through
court officer or approved courier service. Summons can also be served by
register post, speed post, courier service, fax, e-mail or by any other
permissible means of transmission. Where the defendant is residing outside the
jurisdiction of the court, the summons shall be served through an officer of the
court within whose jurisdiction the defendant resides. The court shall treat
refusal of acceptance as a valid service. Where summons is properly addressed,
prepaid and duly sent by registered post acknowledgement due (RPAD) there will
be a presumption of valid service of summons even in the absence of an
acknowledgement slip.
c. Service by plaintiff
The court may
also permit service of summons by the plaintiff in addition to service of
summons by the court.
d. Substituted service
“Substituted
service” means the service of summons by a mode which is substituted for the
ordinary mode of service of summons. There are two modes of substituted
service. They are:
a. (i) Where the
defendant or his agent refuses to sign the acknowledgement; or (ii) where the
serving officer, after due and reasonable diligence, cannot find the defendant
who is absent from his residence at the time of service of summons and there is
no likelihood of him being found at his residence within a reasonable time and
there is no authorized agent nor any other person on whom service can be made,
by affixing a copy on the outer door or some other conspicuous part of the
house in which the defendant ordinarily resides or carries on business or
personally works for gain. The serving officer shall then return the original
to the court from which it was issued with a report endorsed thereon stating
the fact about affixing the copy, the circumstances under which he did so, and
the name and address of the person, if any, by home the house was identified
and in whose presence the copy was affixed. b. Where the court is satisfied
that there is reason to believe that the defendant avoids service or for any
other reason the summons cannot be served in the ordinary way, the service may
be affected in the following manner-
i.
by affixing a copy of the summons in some conspicuous place in the courthouse;
and also upon some conspicuous part of the house in which the defendant is
known to have last resided.
Under
Rule 20, the service of summons is affected by the order of the court only
after the court is satisfied that the defendant avoids service of summons or it
cannot be served in the ordinary way. Such satisfaction must be recorded by the
court in writing.[27]
5.7 Service in special cases
a. Where the
defendant resides within the jurisdiction of another court, the summons may be
sent to the court where he resides. Such court will serve summons on the
defendant.
b. Service of
foreign summons may be affected by sending them to the courts in the
territories in which the provisions of this Code apply and served as if they
were summons issued by such court.
c. Where the
defendant resides out of Bangladesh and has no authorized agent in Bangladesh
to accept service, the summons should be addressed to the defendant at the
place where he is residing and sent to him by post, or courier service, or by
any other appropriate means, if there is postal communication between such
place and the place where the court is situate.
d. Where the
defendant is a public officer, or is a servant of the Railway Company or local
authority, the summons may be served through the head of the department in
which the defendant is employed.
e. Where the
defendant is a soldier, sailor or airman, the court shall send the summons for
service to his commanding officer.
f. Where the
defendant is in prison, the service of summons is to be made on the officer in
charge of the prison.
g. Where the
defendant is a corporation, the summons may be served on the secretary, or on
any director or other principle officer of the corporations. Where the
defendants are partners in any firm, the summons should be served upon any one
or more of the partners; or upon any person having the control or management of
the partnership business at its principle place of business.[28]
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Chapter 6
Admissions
and Affidavits
Admissions
6.1.1 Nature and scope
Section 58 of
the Evidence Act lays down that the facts admitted need not be proved.
Admissions may be made before the suit or after the filing of the suit. The
object of obtaining admissions is to do away with the necessity of proving
facts that are admitted; and the judgment and decree may be passed on such
admissions. As it has been said; what a party himself admits to be true may
reasonably be presumed to be so.[29]
6.1.2 Admission of plaint
According to
Order 7 Rule 9 lays down the procedure when the plaint is admitted by the
court. It provides for filing of copies of the plaint by the plaintiff and also
requires him to pay requisite fees for the service of summons on the defendants
within seven days.
6.1.3 Notice of admission of case: Rule 1
Any party to a
suit may give notice by his pleading, or otherwise in writing that he admits
the truth of the whole or any part of the case of any other party.
6.1.4 Notice to admits documents: Rule 2
Either party may
call upon the other party to admit any document, saving all just exceptions;
and in case of neglect or refusal to admit, after such notice, the cost of
proving any such document shall be paid be the party so neglecting or refusing,
whatever the result of the suit may be, unless the court otherwise directs; and
no cost of proving any 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 expense. A notice to admit documents shall be form No. 9 in appendix
c, with such variations as circumstances may require.
6.1.5 Notice to admit facts: Rule 4
Any party may,
by notice in writing, at any time not later than nine days before the day fixed
for the hearing, call on any other party to admit, for the purposes of the suit
only, any specific fact of facts mentioned in such notice. And in case of
refusal or neglect to admit the same within six days after service of such
notice, or within such further time as may be allowed by the court, the cost of
proving such fact or facts shall be paid by the party so neglecting or
refusing, whatever the result of the suit may be, unless the court otherwise
directs.[30] A
notice to admit facts shall be in form No. 10 in Appendix C, with such
variations as circumstances may require.
6.1.6 Judgment on admissions: Rule 6
Any party may,
at any stage of a suit, where admissions of fact have been made, either on the
pleadings, or otherwise, apply to the court for such judgment or order as upon
admissions he may be entitled to, without waiting for the determination of any
other question between the parties: and the court may upon such application
make such order, or give such judgment, as the court may think just.
6.1.7 Affidavit of signature: Rule 7
An affidavit of
the pleader or his clerk, of the due signature of any admissions made in
pursuance of any notice to admit documents or facts, shall be sufficient
evidence of such admissions, if evidence thereof is required. Notice to produce
documents shall be in form No. 12 in Appendix C, with such variations as
circumstances may require. An affidavit of the pleader, or his clerk, of the
service of any notice to produce, and of the time when it was served, with a
copy of the notice to produce, shall in all cases be sufficient evidence of the
service of the notice, and of the time when it was served. If a notice to admit
or produce specifies documents which are not necessary, the costs occasioned
thereby shall be borne by the party giving such notice.[31]
Affidavits
Affidavit shall
include affirmation and declaration in the case of persons by law allowed to
affirm to declare instead of swearing. Though the expression “affidavit” has
not been defined in the code, it has been commonly understood to mean a sworn
statement in writing made especially under oath or on affirmation before on
authorized officer or Magistrate. Stated simply, an affidavit is a declaration
of facts, made in writing and sworn before a person having authority to
administer oath. Every affidavit should be drawn up in the first person and
should contain only facts and not inferences.[32]
6.2.1 Power to order any point to be proved
by affidavit: Rule 1
Any court may at
any time for sufficient reason order that any particular fact of facts may be
proved by affidavit, or that the affidavit of any witness may be read at the
hearing, on such conditions as the court thinks reasonable:
Provided
that where it appears to the court that either party bona fide desires the
production of a witness for cross-examination, and that such witness can be
produced, and order shall not be made authorizing the evidence or such witness
to be given by affidavit.
6.2.2 Power to order attendance of deponent
for cross-examination: Rule 2
Upon any
application evidence may be given by affidavit, but the court may, at the
instance of either party, order the attendance for cross-examination of the
deponent.
Such
attendance shall be in court, unless the deponent is exempted from personal
appearance in court, or the court otherwise directs.[33]
6.2.3 Matters of which affidavits shall be
confined: Rule 3
Affidavits shall
be confined to such facts as the deponent is able of his own knowledge to
prove, except on interlocutory applications, on which statements of his belief
may be admitted.
Provided
that the grounds thereof are stated the cost of every affidavit which shall
unnecessarily set forth matters of hearsay or argumentative matter, or copies
of or extracts from documents, shall (unless the court otherwise directs) be
paid by the party filling the same. There is always a duty on the part of a
counsel to advise his client as to the verification of the affidavit.
1
2
3
Chapter 7
Schedule of the Property
7.1 Description of Property
“Schedule” shall mean schedule to the
Act or Regulation in which the word occurs. Parcha: Parcha or Khatian is the
record of the land. Every Parcha or record of rights has separate
identification number. Parcha indication, who has the actual ownership and possessioner
of the land.
Kinds
of Parcha:
1.
CS Parcha (Cadastral Survey)
2.
RS Parcha (Revisional Survey)
3.
SA Parcha (State Acquisition Survey)
ROR
ROR
means record of rights. Parcha or Khatian is the record of rights of the land.
Every Parcha or record of rights has separate identification number. Parcha
indication, who has the actual picture of possessioner of the land. ROR came
into force in 1962.
MOUJA
Mouja
means the geographical unit of the land survey process. One union porished is
divided into same Mouja.
JL
JL
means jurisdiction list number. Under Upazila or Thana the identification
number of Mouja is called JL no or Jurisdiction List number.
7.2 Identification of land
District-
Jessore, PS Abhaynagar, Sub-Registry Office- Noapara, Mouza- Noapara, J.L. No
Sabek-32, Hal-57, Khatian No. CS 456,
Plot No. 38, Khatian No. CS 1019, Plot No. 537, Khatian No. SA 961, Plot No. SA 537, 538, Khatian No. RS
465, Plot No. 556, area of land 50 decimal butter and bounded by-
On
the North: Government Road
On
the South: The land of Shafiar Rahman
On
the East: River
On
the West: The land of the Bangladesh Railway.[34]
11111
2
3
Chapter 8
Conclusion
Complication of
civil suit arises only when improperly a case is filed. Every Civil suit must
have a good destination it is called “Vehicle” running over the tenor of law.
Civil suit lacks its success when actual Pen-Picture is not cast in the plaint.
Every Civil suit must be duly stamped, and must be signed with due
verification. Success of a party lies, in filing civil suit with due care.
Improper plaint gives birth to, improper results and the same affects the life
and property of a party, care should be taken over filing a civil suit, in
matters of court fees, jurisdiction and specification of the suit land.
In framing a suit unwanted hazards
should be avoided. Lengthy civil suit is a lengthy process in a mans life the
same is a wastage of energy and time. Lengthy civil suit engulfs the lifetime of a party. Competency of
a court in disposing a civil suit is of mare importance than anything else.
Legal profession is a solemn and serious occupation. It is a noble calling and
all those who belong to it are its honorable members. Although the entry to the
profession can be professional has to be maintained by its members. Lawyers
must be careful in discharging their duties and in discharging the duties
bestowed upon them. It should be taken case of that a man should not be tried
in his absence; by keeping him ignorant over the fact and actual matters. Hence
in a civil suit the summons must contain a direction whether the date fixed is
for settlement of issues only or for final disposal of the suit. In the latter
case, the defendant should be directed to produce his witnesses. The court must
give sufficient time to the defendant to enable him to appear and answer the
claim of the plaintiff on the day fixed. The summons should also contain an
order to the defendant to produce all documents or copies thereof in his
possession or power upon which he intends to rely on in support of his case. A
party in litigation must remember that good plaint gives birth to a good
decree. As such to achieve a good decree plaint must be duly filed. Otherwise
the same may deprived the party from enjoying the fruits of a civil suit.
[1]
The Code of the Civil Procedure, 1908. (Act No V of 1908).
[2] Md. Abdul Halim, The Legal System of Bangladesh, 1st
ed., (Dhaka: CCB Foundation, 2004). p. 164.
[3] C. K.
Takwani, Civil Procedure, 5th
ed., (Lucknow: Eastern Book Company, 2006). P. 157.
[4] Ibid.
[5]
The Code of Civil Procedure, 1908, Order 7, Rule 1.
[6] Ibid.
[7] C.
K. Takwani, ibid., pp. 157-160.
[8] Ibid.
[9]
The Code of Civil Procedure, 1908, Order 7, Rule 6.
[10]
C. K. Takwani, ibid., p. 159.
[11] Ibid., pp. 160-161.
[12] Ibid., pp. 161-162.
[13] The
Code of Civil Procedure, 1908, Order 3, Rule 4.
[14] C. K.
Takwani, ibid., p. 168.
[15] Ibid.
[16] A. A. M
Moniruzzaman, Civil Procedure Code, 3rd
ed., (Dhaka: Shams Publications, 2007), p. 307.
[17] Nazrul Islam and another v. Jahanara Hassan
and other. 46 DLR (1994), 106.
[18] Mansur Ali v. Janata Bank. 43 DLR
(1991), 394.
[19] Sadharan Bima Corporation v. Bangladesh
Shipping Corporation. 43 DLR (1991), 548.
[20]
A. A. M Moniruzzaman, pp. 309-310.
[21] Ibid.
[22] Ibid.
[23]
C. K. Takwani, ibid., p. 166.
[24] The
Code of Civil Procedure, 1908, Sec. 27, Order 5, Rule 1.
[25] Ibid., Rule 3.
[26] Ibid., Sec. 132-133. Order 5, Rule 4.
[27] Ibid., Rule 9-30.
[28] Ibid., Rule 21-30.
[29] Md.
Abul Kalam Azad, The Code of Civil
Procedure, 3rd ed., (Dhaka: Lipi Law Book House, 2008), pp. 592-595.
[30] Ibid.
[31] Ibid.
[32] The
General Clauses Act, 1897. (Act X of 1897), Sec. 3(3).
[33] Md.
Abul Kalam Azad, ibid., pp. 644-645.
[34]Prof. A A
Khan, Land Laws of Bangladesh, 1st
ed., (Dhaka: Khoshroz Kitab Mahal, 1995), p. 428.
writting is good.....
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