Stages of Civil Suit

Stage 1: Commencement of Suit

• Section 26 Read with order IV CPC

• Section 26: Every suit shall be instituted by the Presentation of plaint.

In every plaint, facts shall be proved by the affidavit.

• Order IV R1: Suit to be commenced by plaint: Every suit shall be instituted by the presentation of plaint in duplicate to the Court or to such officer as the court appoints in this behalf.

• Particulars of Plaint: (O VI & O VII): It must contain a concise statement of material facts and not evidence; In cases of misinterpretation, fraud, breach of trust, undue influence, particulars are important; OVIIR14

Stage 2: Summons to Defendant

• If the plaint is admitted, summons served to the D to appear and answer the claim and to file WS.

• Time stipulated: OV r1 requires the D to appear within 30 days, this is extendable by the court to 90 days for reasons to be recorded in writing. Delay in filing WS beyond 90 days can be condoned.

• However, in Commercial Court Act, 2015, this period is extendable upto120 days from the receipt of summons, after which the right is forfeited.

• Personal appearance of D : As per R4, the same can be ordered only if the D resides:

  • Within the jurisdiction of court

  • Without such place but within a distance of 50 miles

  • Without such place but within a distance of 200 miles, if the same is connected by public conveyance for 5/6th of distance between the place of residence and where court is situated.

• How is a summon served: R16, 18- a copy is delivered to the person and the person receiving it must sign an acknowledgement on original summons. The serving officer will then endorse the same.

• Dasti summons: R.9A- in addition to the service of summons by D, Court may permit P to effect service of summons on D and for this purpose deliver the same to the P for service.

Stage 3: Appearance and Non-appearance of Parties

• General Rule 1: On the day fixed in summons for D to appear, the parties shall be in attendance in person or through pleader.

• Dismissial of Suit: Where P fails to pay costs/present as many copies of plaints as are Ds or when neither party appears when suit is called for hearing.

• Where only P appears R6: If summon served- exparte, not served-re issued and if served but not in time – postponement of hearing.

• R7: At/before adjourned date, D appears and shows good cause, might be able to get the earlier proceedings recalled, ‘set the clock back’ and have the suit heard in his presence.

• Setting aside x-parte R13: If summons not served or prevented by sufficient cause for appearing.

• Where only D appears R8: Suit is dismissed unless admission/part admission and decree passed accordingly. Effect is that it bars suit unless it can be set aside on sufficient cause.

Stage 4: Contestation by D

• The D may contend the suit In the following ways:

  1. Rejection of Plaint: OVIIR11- such as it is barred by any law, does not disclose a cause of action, plaint not filed in duplicate etc.

  2. Filing of WS:

• Time period: 30 days extendable to 90 from the date of receipt of summons.

• OVIIIR3- Denial must be specific and not vague.

• OVIIIR2- New facts must be pleaded.

• OVIIIR5- Facts not specifically denied or by necessary implication, deemed to be admitted.

• OVIIIR1A: Whenever the D bases his defence upon a document, she/he must enter the same in a list of documents and a copy of the same must be simultaneously provided to other party.

• Commercial Courts Act, 2015; The WS of D must not only contain denial but also reasons for denial and his/her own version of facts.

Stage 5: Pre- Trial Procedures

A. Examination of parties – Order X

• At the 1st hearing of the suit – Court Shall record admissions and denials. If the D in WS fails to expressly or by necessary implication admit or deny any of pliant allegations, court can ascertain at this stage whether she/he admits/denies the averments. Likewise, if D has made some allegations against D and P fails to file reply, court can ascertain at this stage whether she/he admits/denies the averments.

• Also, at the 1st hearing of the suit: court shall orally examine parties with a view to elucidate matters in controversy. Court may orally examine another person as well. A person cannot be prosecuted u / s 195 CrPc, for giving false evidence, by giving an answer to a question put under Order X R2, when the person is not under oath and not being examined as a witness.

B. Interrogatories – Order X1

• It is a list of questions which you can call upon the other side to answer; but they can only be asked with the leave of the court. They are to be answered in affidavit within 10 days.

• Use of Interrogatories: Party not bound to use them as evidence, a party may put any answer/ any part of the answer without putting the whole of the answer. However, court may look at the whole of the answer if it so thinks to be connected with the portion of the evidence.

C. Discovery of Documents

A party may call upon the other side to disclose documents in its possession or power. It can be effected only by the order of court. It has to be answered in affidavit.

D. Inspection of Documents;

Does not require order of the court, can be initiated by notice to the other party.

Stage 6: Framing of Issues

• Production of documents: Order XIIIR1: At/before settlement of issues, original copies of documents supplied with pleadings have to be submitted.

  1. Rejection- if they are irrelevant and inadmissible and the same be endorsed to that effect.

  2. Admitted in evidence, endorsed to that effect and shall form part of record.

• Framing of Issues: OXIV: Issues may be framed on material prepositions of law or fact which are affirmed by one party and denied by another. The variance between the parties can be ascertained from the pleadings of the parties, allegations on oath, documents produced by either party.

• Prelimnary Issues: Such as jurisdiction, bar created by any law, court may postpone the settlement of all other issues and deal with the same in accordance with the issues.

• Striking/ additional Issues R5: At any time before passing of the decree, the court may amend/frame additional issues and shall do so if necessary for determining matters in controversy.

Disposal of the Suit at 1st Hearing: Order Xv

If at the 1st hearing of the suit, it appears that:

• Parties are not at issue of law/fact: Court may pronounce judgement

• Parties are at issue but no further argument/ evidence is requires.

• Summons issued for final disposal- either party fails to produce evidence on which it relies, court may pronounce judgement.

Stage 7 : List of Witnesses: Order XVI

• Within 15 days of the issues being framed, parties are to give a list of witnesses.

• Witness can be to give or to produce document.

• Can a person who is not on the list be summons as a witness subsequently?

  1. If the parties show sufficient cause for omission

  2. And the court then records reasons for so doing

Stage 8 : Leading of Evidence

• Hearing of the suit begins with the production of evidence and gets culminated on the pronouncement of judgement.

• As a general rule, P has right to begin unless D sets up a ground of maintainability; section 101 of Indian Evidence Act

• OXVIII R4: In every case, exam in chief shall be recorded on affidavit and copies shall be supplied to the opposite party to the party who calls him for evidence. The cross/ re-examination of witness whose in chief has been affidavit shall be taken either by the court or by the commissioner appointed by it in writing or mechanically recorded under its supervision.

Stage 9: Pronouncement of Judgement – Order XX

• R1-After the case has been heard, the Court shall pronounce the judgment in an open court either at once or on some future date of which due notice shall be given to the parties or to their pleaders.

• R4: Contents of the judgment: facts of the case, points for determination, decision of the Court and the reasons for the same.

Changes: Commercial Courts Act, 2015

• Court's control over evidence:

  • Court will regulate the issues on which evidence is required and the manner in which it is placed

  • Court can, for reasons to be recorded, exclude evidence.

  • Court can reject affidavit of examination of chief for not constituting admissible evidence or it can redact any portion of examination in chief for not constituting admissible evidence.

  • It provides guidelines on how affidavit evidence will be proved

• Rs. How evidence shall be taken in appealable cases:

The evidence of each witness shall be taken down in the language of the Court, in writing or in the presence/personal direction and supervision by judge.

• Harmonizing OXVII R4& R5:

• As it already on oath, there is no requirement that in appealable cases as per Order XVIIII R5, the witness must enter the witness box for production of affidavit and formally prove his affidavit.

• Such a witness is required to enter the witness box for cross examination and if necessary re-examination. As long as the witness makes herself/himself available for cross, unless D's right to cross has been closed, examination in chief evidence does not cease to be legal evidence.

• OXVIII RI5: The successor judge has to proceed from the stage the predecessor judge had left the case, where a judge is prevented by death, transfer or other cause from concluding the trial of the suit, his successor may deal with the evidence/ memorandums if the same had been taken down by him/under his direction.

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