suits, summons, pleadings Flashcards
institution of suits
Institution of suits
(1) Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
(2) In every plaint, facts shall be proved by affidavit.
(3) Provided that such an affidavit shall be in the form and manner as prescribed under ______.
Every suit is initiated when it is “duly instituted” as per s.26. Duly instituted means fulfilling all the requirements u/s.26
section 26 ;
Order VI of rule 15A
parties to suit: Order ___
The presence of opposing parties is one of the essential requirements of any civil suit. But all parties are not necessary for the suit to be adjudicated upon.
Therefore, necessary and non-necessary parties have to be distinguished between. Necessary parties are those from whom relief is claimed.
Non-necessary parties are those parties who may be a party to the suit, but from whom no relief has been claimed.
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Order 1 (R.1-10) of CPC deals with the provisions of parties to the suit and also with-Joinder, mis-joinder and non-joinder of parties.
Order 1 Rule 1
joinder of plaintiffs
Order 1 Rule 3
joinder of defendants
Order 1 Rule 9
non-joinder of parties
- if necessary or proper party is not joined
- suit can be dismissed on this ground (for necessary parties)
mis-joinder of parties
- if parties joined are not necessary or proper parties
- suit cannot be dismissed
Necessary or Proper Parties:
There is an essential distinction between a necessary party and a proper party to a suit.
A necessary party is one whose presence is _____ to the constitution of the suit, against whom the relief is sought and without whom no effective order can be passed.
A proper party is one in whose absence an effective order ____ be passed, but whose presence is necessary for complete and final decision on the question involved in the proceeding.
indispensable ; can
Thus, in absence of necessary party, no decree can be passed, while in absence of proper party a decree can be passed so far as it relates to the parties before the court
Order 1 Rule 13
- All objections on the ground of non-joinder or mis-joinder of parties must be taken at the earliest opportunity, otherwise they will be deemed to have been waived.
- But, if the objection as to non-joinder of necessary party has been taken by the defendant at the earliest opportunity and plaintiff declines to add the necessary party. He cannot subsequently be allowed in appeal to rectify the error by applying for amendment
Objections as to Non-Joinder or Mis-joinder of Parties
Order 1 Rule 10
Adding or substituting plaintiff:
- As per Rule _____ of CPC the plaintiff can make an application for addition or substitution of plaintiff.
- If after filing of the suit, the plaintiff discovers that he cannot get relief he seeks without joining some other person also as a plaintiff or where it is found that some other person and not original plaintiff is entitled to the relief as prayed.
- Such amendment in the plaint can be allowed by the Court at _____ stage of the suit or even at the appellate stage as per the terms and conditions as the court deems fit
Striking Out, Adding or Substituting Parties
10(1) ; any
Striking out or adding parties:
The civil court is empowered to add any person as a party to the suit on any of the following grounds:
1.Such person ought to have been joined as a plaintiff or a defendant, and is not so joined.
- Without his presence, the question involved in the suit cannot be completely decided
Order 1 Rule 10
Representative suit
- As a general rule all persons interested in a suit ought to be joined as parties to it, so that the matter involved therein maybe finally adjudicated upon and fresh litigation over the same matters may be avoided. A representative suit is an exception to this rule.
Order I rule ____of CPC provides that when there are Number of persons similarly interested in a suit, one or more of them can, with the permission of court or upon a direction from the court, sue or to be sued on behalf of themselves and others.
- The object underlying this provision is really to facilitate the decision of questions in which a large number of people are interested without recourse to the ordinary procedure.
- This part of the code has been framed in order to save time and expense, to ensure a single comprehensive trial of questions in which numerous persons are interested and avoid harassment to parties by a multiplicity of suits.
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Conditions requisite:
- The Parties must be numerous.
- They must have the same interest in the suit.
- The permission must have been granted or direction must have been given.
- Notice must have been issued to the parties to whom it is proposed to represent.
Frame of Suit: Order ___
- Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
- Suit to include the whole claim. Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action;
- but a plaintiff may _____ any portion of his claim in order to bring the suit within the jurisdiction of any Court.
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relinquish
Splitting of Claim:
Order ___, Rule ____
Relinquishment of part of claim - Where a plaintiff omits to sue in respect of, or internationally relinquishes, any portion of his claim, he shall _____ sue in respect of the portion so omitted or relinquished.
- Omission to sue for one of several reliefs - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Order 2, Rule 2
not afterwards
For example: A lets a house to B at a yearly of rent Rs. 1200. The rent for the whole of the, years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.
Scope of Order 2, R 2.
Order 2, R 2 enacts that if a plaintiff fails to sue for the whole of the claim which he is entitled to make in respect of a cause of action in the first suit, then he is ______ in a second suit in respect of the portion so omitted.
- Bar of subsequent suit under O 2, R 2 will not be applicable if the identity of cause of action in the previous suit and the subsequent suit is not established.
- Where previous suit for recovery of sale price was filed, the subsequent suit for recovery of possession on ground that they were owners is not barred under O.2, R.2.
- The cause of action in the subsequent suit was different and distinct. In previous suit for recovery of sale price, the plaintiffs could not claim the recovery of possession on the basis of title as title in that suit was averred by them to have been transferred to the defendants.
- Plea as to bar to second suit cannot be raised and inferred by the court in absence of pleading before the court. It is more so when pleadings were produced for the first time before the Supreme Court.
- O.2 R 1 and 2 CPC are designed to arrest the proliferation of litigation.
- R. 2 interdicts the filing of different suits in respect of multiple reliefs springing from the same cause of action
precluded from suing
Essentials of Order 2, R.2 (to bar a suit)-
It is necessary to find out:
(1) As to what was the ______ in respect of which the claim was made in the previous suit.
(2) Whether the claim or a portion of claim made in the subsequent suit was based on the same cause of action as the previous one and was between the same parties
cause of action
Order____: Summons
- The basic principle that “no one should be condemned unheard” when the suit is instituted against the defendant the court is bound to serve the summons to defendant for appearing before the court.
- After filing of suit, it becomes necessary for that party, which files suit, to serve summons on the opponent party.
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- Order 5 prescribes various modes of service of summons to defendant.
Meaning of Summons-
“A written notification issued by a civil court requiring that one must appear before the court in prescribed manner.”
When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified:
- Provided that no such summons shall be issued when the defendant has ________ at the presentation of the plaint and admitted the plaintiff’s claim:
- Provided further that where a summons has been issued, the Court may direct the defendant to file the written statement of his defence, if any, on the date of his appearance and cause an entry to be made to that effect in the summons.
A defendant to whom a summons has been issued under sub-rule (1) may appear- in person or, by a pleader duly instructed and able to answer all material questions relating to the suit or, by a pleader accompanied by some person able to answer all such questions.
Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court
appeared
Various modes of Summons O ____ R ____:
- Postal Service: Rule____. Under _____ of CPC, a copy of summons would be sent by registered post.
Effect: A postal service is deemed to by effect;
a) When defendant signs acknowledgment
b)Postal employee endorses, that defendant refuses to take delivery
Order 5, Rule 10
10-A ; O-5 R 10-A
Personal Service of Summons:
Order ____ Rule ____
- Wherever it is practicable service of summons should be made on defendant in person. This is also called as direct service.
- Service is made by delivering a copy of the summons to the person concerned or to his agent and by obtaining his signature on the other copy.
Order 5 Rule 12
Personal service can be by two modes:
- Upon person of defendant: R 12
O.5 R.10 when summons is served on person of defendant, it should be signed by judge or officer of court and should be sealed with the seal of court. - Upon agent of defendant: R.12
This mode of service is divided further into different agents of defendant to whom summons may be served:
EBIM
1. Empowered agent:
The personal service made to the agent of the defendant, empowered to accept service shall be sufficient.
2. Business of Defendant: R.13
if some person does not reside within jurisdiction of court, but carries on some business or works through manager or agent and suit is filed against this person and in relation to this business or work, summons can be served on such manager or agent.
- Immovable property of Defendant: R.14
When suit is filed about immovable property, and summons cannot be served on defendant or defendant has not empowered any agent to accept service of summons, summons can be served on that agent of defendant, who is in charge of such immovable property.-
- Service on male member of Defendant’s family: R.15
If defendant cannot be found or defendant has not empowered any agent to accept service of summons, summons can be served on any adult member of defendant’s family. However, summons can only be served on that member, who resides with defendant.
Servant is not considered as a member of the defendant’s family
Service by Affixation: O___, R____
When personal service is failed to serve the summons then summons may be served by affixation.
Conditions Required:
a. Refusal by defendant to sign acknowledgement -Service by affixation may be served, where defendant or his agent or such other person to whom the summons may be served refused to sign acknowledgement.
b. Failure of serving officer to find defendant -Where the serving officer after using all due and reasonable diligence cannot find the defendant, then service by affixation can be made with due and reasonable diligence is dependent on the facts of each case
Order 5, Rule 17
Manner of Affixation: O___ R____
The copy of summons should be actually affixed on the outer door or some conspicuous part of the house where defendant resides, carries on business or personally works for gain.
The copy of summons shall be affixed on outer door or some other eminent part of that house in which defendant ordinarily resides or carries on business or works for gain
Order 5, Rule 18
Substituted Service: O___R___
Substituted Service can be made only in the following cases:
a. When defendant is keeping out of the way for the purpose of avoiding summons, or
b. Any other reason for which service of summons is not possible in ordinary way
Order 5 Rule 20
Manner of Substituted service:
- Substituted service can be made by _____ at some conspicuous part of that house in which defendant is known to have last resided or carried on business or personally worked for gain.
- Substituted service can be made through any _______ like telegram, phonogram, telex, radio or television.
- Substituted service can be made through _____.
- Substituted service can be made through _____ in that locality where defendant resides.
- Substituted service can be made through publication in press.
- Substituted service can be made through any other manner or mode, which court thinks fit.
Time for defendant’s Appearance: In case of substituted service, it is necessary that court should fix time of appearance of defendant and such time should not exceed _____ days.
affixing copy of summons ;
electronic device of communication ;
urgent mail service or public courier services ;
beat of drum ;
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Effect: The substituted service shall be as affective, as if it had been made on the defendant personally and the court may pass an ex-parte decree, on non-appearance of defendant.
The principle of “Audi Alteram Partem”is fundamental principle of natural justice, which means to hear the other side. This principle has been incorporated in O.5.
Pleadings Order ____
Pleadings are statements in writing drawn up and filed by each party to a case stating what his contentions will be at the trial and giving all such details as his opponent needs to know in order to prepare his case answer.
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Definition of Pleading:
O____, R____
defines Pleading as meaning a plaint or written statement. Plaint is the statement of claim, in writing and filed by the plaintiff in which he sets out his cause of action with all necessary particulars.
- Written statement is the statement of defence in writing and filed by the defendant in whom he deals with every material fact alleged by the plaintiff in the plaint and also states any new facts which may be in his favour adding such legal objections as he wishes to take to the claim
Order 6, Rule 1
Object of Pleadings:
The whole object of pleadings is to narrow the parties to definite issues and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.
_____ pleadings:
The plaintiff’s additional plaint and the defendant’s additional written statement can be filed by them with the leave of the court. These are termed as supplemental pleadings.
Supplemental
Fundamental Rules regarding Pleadings:
O____ R ____ lays down the fundamental principles of pleadings.
Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Following are the fundamental or basic rules of pleadings:
1) Pleadings should state facts and not law;
2) The facts stated in pleadings should be material facts;
3) Pleadings should not state the evidence; and
4) The facts in pleadings should be stated in a concise form.
Order VI Rule 2(1)
The facts mentioned above are of two types:
a) Facta probanda - the facts required to be proved (material facts); and
b) Facta probantia-the facts by means of which they are to be proved (particulars or evidence).
Other Rules of Pleadings:
- Wherever misrepresentation, fraud, breach of trust, willful default or undue influence are pleaded in the pleadings, particulars with dates and items should be stated.
- The performance of a condition precedent need not be pleaded since it is implied in the pleadings. Non-performance of a condition precedent, however, must be ____ and _____ pleaded.
- Generally, departure from pleading is not permissible, and except by way of ______, no party can raise any ground of claim or contain any allegation of fact inconsistent with his previous pleadings.
- A bare denial of a contract by the opposite party will be construed only as a denial of factum of a contract and not the legality, validity or enforceability of such contract.
- Documents need not be set out at length in the pleadings unless the words therein are material.
- Wherever malice, fraudulent intention, knowledge or other condition of the mind of a person is material, it may be alleged in the pleading only as a fact without setting out the circumstances from which it is to be inferred. As, such circumstances really constitute evidence in proof of material facts.
- Whenever giving of notice to any person is necessary or a condition precedent, pleadings should only state regarding giving of such notice, without setting out the form or precise term of such notice or the circumstances from which it is to be inferred, unless they are material.
- Implied contracts or relations between persons may be alleged as a fact, and the series of letters, conversations and the circumstances from which they are to be inferred should be pleaded generally.
- Every pleading should be signed by the party or one of the parties or by his pleader.
- A party to the suit should supply his address. He should also supply address of the opposite party
- A Court may order striking out a pleading if it is unnecessary, scandalous, frivolous, vexatious or tends to prejudice, embarrass or delay fair trial of the suit.
- A Court may allow amendment of pleadings.
- Forms in Appendix A of the Code should be used wherever they are applicable. Where they are not applicable, forms of like nature should be used.
- Every pleading should be divided into paragraphs, numbered consecutively. Each allegation or averment should be stated in a separate paragraph. Dates, totals and numbers should be written in figures as well as in words
- Facts which the law presumes in favour of a party or as to which the burden of proof lies upon the other side need not be pleaded.
- Every pleading should be verified on affidavit by the party or by one of the parties or by a person acquainted with the facts of the case.
- specifically and expressly
- amendment
Amendment of Pleadings:
O____R___ and R___
Amendment is the formal revision or addition or alteration or modification of the pleadings.
- Provisions for the amendment of pleadings are intended for promoting the ends of justice and not for defeating them
Order 6, Rules 17 and 18
Order 6 Rule 17 provides that, “The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
”Proviso to the ______ restricts and curtails power of the Court to allow amendment in pleadings by enacting that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.Amendment of pleadings when granted:
Rule 17 as inserted by the Code of Civil Procedure (Amendment) Act, 2002
Amendment of pleadings can be granted by the Court in two situations namely-
1. where the amendment is necessary for the determination of the real question in controversy; and
2. can the amendment be allowed without injustice to the other side.
Failure to amend-
O____ R_____
deals with this issue.
- It provides that if a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order,
- or if no time is thereby limited then within _____ days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such ___ days, as the case may be, unless the time is extended by the Court.
Order 6 Rule 18
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