Institution of Suit Under CPC
Institution of suit under CPC is the initial stage of the procedure of a civil suit. Institution of suit means presenting a plaint along with other documents before the court i.e. the institution of suit. Institution of suits and provisions relating to the institution of suit under cpc is laid down under Section 26 and Order 4 of the Code of Civil Procedure Code, 1908.
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Institution of a Suit under Section 26
The institution of suits is the primary stage of any civil proceeding in the suit. The provisions relating to the Institution of Suits are governed under section 26 read along with Order 4 of the Civil Procedure Code.
According to Section 26 of the CPC;
- Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
- In every plaint, facts shall be proved by affidavit.
Provided that such an affidavit shall be in the form and manner as prescribed under Order VI of Rule 15A
According to Order IV of the CPC;
- Every suit shall be instituted by presenting [plaint in duplicate to the Court] or such officer as it appoints on this behalf.
- Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
- The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2).
Herein, order IV should be read along with section 26 of CPC. According to this provision, a lawsuit can only be considered adequately commenced if it is presented to the court directly or to a proper official designated in this capacity with a plaint and in the duplicate plaint. The requirements specified in Orders VI and VII must be followed by the plaint before presenting the suit.
Read Also:
- What is a Suit?
- Hierarchy of Civil Courts in India
- Difference Between Decree, Order and Judgment
- Jurisdiction of Civil Courts and Types of Jurisdiction
The Procedure of Institution of Suits
The procedure for the institution of suits includes the following;
- Preparation of a Plaint,
- Place of Suing,
- Presentation of a Plaint,
- Registration of Suit.
1. Preparation of a Plaint
The term "plaint" has not been defined anywhere in the Civil Procedure Code, 1908. Generally, the meaning of plaint can be defined as "Plaint is a document where statements are written on the grounds of complaint or allegations made to a court of law and preying for legal relief.
A plaint is a legal document in which a plaintiff pleads to the court for restitution for any legal injury inflicted by the defendant. There is no strict format for drafting a plaint. Order VII, Rule 1 of the CPC, specifies rules about the particulars to be included in the plaint are provided. A plaint must include the following:
- Name of the court where the suit is filed;
- Plaintiff’s name, description, and address;
- Name, description and address of the defendant, as it can be ascertained;
- A statement to that effect is required when either the plaintiff or the defendant is a minor or a person of unsound mind;
- Facts constituting the cause of action and when it arose;
- Facts proving the jurisdiction of the court;
- The relief that the plaintiff requests to claim;
- If the plaintiff has approved a set-off or waived a portion of his claim, the amount allowed or waived; and
- A statement of the value of the subject matter of the suit for the purposes of jurisdiction and court costs, to the extent permitted as per the case.
2. Place of Suing
Place of suing in CPC plays an important role in the civil proceedings. However, the place of suing directly deals with the authority of a court to hear and decide the suit. Therefore, choosing the court totally depends upon the contents of the plaint. Moreover, the place of suing refers to the jurisdictional aspect.
According to section 9 of the Code of Civil Procedure Code, 1908, it is stated that "the courts shall have jurisdiction to try all suits of civil nature except in suits of which their cognizance is either expressly or impliedly barred.
The jurisdiction of the court is decided by the legislature, parties to a suit and valuation of the suit property. Hence, merely framing the plaint or contents in the plaint cannot interfere with the extent of the jurisdiction of the court.
But, the parties to the suit choose a court amongst various courts if they have the same jurisdiction as the other court. In the case of Mt. Ananti v/s Chhannu And Ors. AIR 1930 Al 193, the court held that "The plaintiff chooses his forum and files his suit, and if he establishes the correctness of the facts then he will get his relief from the forum chosen."
According to section 15 of the CPC, it is stated that "every suit shall be instituted in the court of lowest grade which is competent to entertain the suit.
Place of suing in CPC is provided in section 15 of CPC, which deals with the pecuniary jurisdiction, sections 16 to 18 deal with the suing for immovable property, section 20 deals with a residuary or cause of action arising, section 21 deals with the waiving of defects and section 21A deals with the bar to challenge the decree passed in the former suit. These are the provisions of the place of suing in CPC.
Therefore, the place of suing is classified on the basis of the kinds of jurisdiction. The place of suing is based on;
- Pecuniary Jurisdiction (Sec. 15)
- Territorial Jurisdiction (Sec. 16 to 20)
3. Presentation of a Plaint
The rules regarding the presentation of the plaint are found in Section 26 and Order IV of the CPC, 1908. Rule 1 of Order IV is stated that -
- The court or the officer designated in this regard must receive a petition /plaint in duplicate before the filing of a lawsuit.
- The Rules in Orders VI and VII must be followed by each and every party to the suit.
- If the litigation does not meet the standards outlined in sub-rules (1) and (2), it will not be considered to have been properly instituted.
Therefore, it is provided in section 26 that every suit must be started with the filing of a pliant or in another way that may be required.
The presentation of a plaint in a court of law can be done by an aggrieved individual, his attorney, his designated agent or any other person who is lawfully authorised by him.
4. Registration of Suit
Rule 2 of Order IV provides that the Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the Register of civil suits after the Court fees have been paid correctly in the Court having pecuniary Pecuniary jurisdiction specifies the monetary jurisdiction of the Court and divides the Courts on a vertical basis. It is different for different district Courts in various states e.g. Currently, the pecuniary jurisdiction of the Delhi courts is Suits amounting to Rs.1 – Rs.20, 00,000 and territorial jurisdiction. Territorial jurisdiction deals with the area-wise jurisdiction of various courts which is decided by taking numerous factors into consideration.
Such entries shall be numbered in every year according to the order in which the plaints are admitted. Thus, after the presentation, the suit will be numbered along with being scrutinised by the Stamp Reporter.
Once all these steps have been taken care of, a suit is successfully instituted before a Civil Court.
Duties of Lawyer at the Time of Institution of Suit
- Preparing the plaint and pleadings as per the provisions of orders VI and VII.
- Attach the necessary documents along with the suit by considering Order VII rule 14.
- Make a valuation of the suit as per the provisions of the Court Fees Act.
- Supply necessary copies of the Plaint and documents to the court and to the opposite party.
- Get an examination of the plaint done through the office of the court.
- Issue summons to the defendant through the court by making payment of due process or as per all other modes provided under Order V of the Code of Civil Procedure.
- Attach address memo with plaint as per Order VI Rule 14A.
Frequently Asked Questions
What is the limitation period for the institution of suit?
The appeals against a decree or order must be submitted in any court within thirty days after the date of the decree or order being appealed, and in the High Court within ninety days. A time limit on litigation is necessary for everyone's welfare.
What is an institution of a suit under Section 26 Order 4?
In order to extend the law as specified in Section 26 of the CPC, Rule 1 of Order IV must be interpreted in conjunction with that section. According to this rule, a lawsuit can only be considered properly launched if a complaint is used, it is presented in duplicate, and it is presented either directly to the court or to an appropriate officer designated in this regard.
Where can a suit be instituted in CPC?
The lawsuit may be filed in any court that has local jurisdiction over any area where the subject property is located, provided that the court has jurisdiction over the entire claim with regard to the value of the claim's subject matter.
What is the institution of suits in CPC?
The institution of suits is governed under Section 26 of the CPC, read along with Order IV, CPC. According to Section 26 of the CPC: Every lawsuit must be initiated by the filing of a plaint or in any other manner as prescribed by law. An affidavit must be used to substantiate the facts in every plaint.