FORMATION OF PLAINTS IN CIVIL COURTS

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.









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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]




















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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.

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