How to file a Civil Suit in India?

How to file a civil suit in India

A plaintiff files a civil suit against the defendant in the court of law in which the plaintiff doesn’t want to punish the defendant but just wants to take the compensation for his loss which occurred due to the act of the defendant. 

Suppose, you got a property by a gift deed and someone is trying to take adverse possession over that property because you didn’t have the mutation certificate of property, in that case, you will file civil litigation against that person to take possession of that property.

Civil suits can be filed in many cases like if you want to take maintenance from your husband during the case of divorce, someone has defamed you and you want to take the defamation compensation, in case of Cheque bounce, violation of copyrights, etc. These are the examples of civil cases in which you can file a civil suit to take the compensation or your right back. 

The registration process of civil suits is different from criminal cases because, in civil suits, you don’t file an FIR against the defendant, you have to file the case in the court of law directly. 

In this article, we will learn how to file a civil suit and the different steps followed in the civil suit. 

Civil case process

So let’s know about the very first step by which a civil case starts. In this article, we will take the example of a contract between two parties. 

Formation of contract

There must be at least two parties in the contract and it can be an oral or written contract. It is suggested that there should be a written contract between parties so that it could be used as documentary evidence in a court of law.

The contract must be valid

A person cannot file a civil suit against a person if the contract done between these two parties is a void contract. The contract must follow the essential elements of a valid contract

Breach of contract

During the performance of the contract, if either of the parties has done the breach of contract, then the aggrieved party can ask for compensation. 

Legal notice

After the breach of contract, if there are no remedies for breach of the contract given in the contract and the defendant party failed to compensate for your losses, then you can start the process of a civil suit by sending a legal notice with the help of an advocate. The legal notice is a written document that works as a last warning to the defendant party to compensate the aggrieved party. Normally, the legal notice gives a 30 to 60 days’ time period to the defendant party so that they can contact the aggrieved party and compensate them. 

The help of mediation or arbitration

The parties can also take the help of a mediation process or arbitration process to solve their dispute without going to court. These processes will save their time and money by solving the dispute. 

The given process can solve the case without going to court. But if after the expiry of 30 to 60 days, the opposite party didn’t respond or compensate for your losses, you can file a civil suit in the civil Court.

Filing of a civil suit

The code of civil procedure deals with the detailed process of filing a civil suit in court. The person who is going to file a civil suit must use this procedure for filing a suit against the opposite party because if this procedure is not followed by the party, the chief ministerial officer can dismiss your suit in the beginning.

Write a plaint

A legal notice is not important in a civil case, you can directly go to the court to file a suit. If you have given the legal notice then wait for the expiry of the date given in the legal notice. After the expiry of the notice period, you can contact your advocate to write a plaint against the opposite party. Under the plaint, the aggrieved party who is going to file a civil suit will become the plaintiff and the opposite party who has to compensate for your losses becomes the defendant. 

We have written a full article on how to write a plaint. You can go through the article to know about what a plaint contains

Vakalatnama

After writing the plaint, the plaintiff has to authorize his Advocate to fight his case against the opposite party. A Vakalatnama is a written document that authorizes an advocate to represent his client in Court.  In a case, where the party is fighting the case without any advocate, Vakalatnama is not necessary. 

Terms and conditions of vakalatnama

  • The client will not hold the Advocate responsible for any decision given in the court
  • The party has to bear all the expenses and costs incurred during the proceeding of the court
  • The Advocate can hold your document if your fees are not paid
  • The client can change the Advocate at any stage of the proceeding
  • The Advocate will use the seven lamps of advocacy while dealing with the case of his client. 

Submission of plaint

After the vakalatnama, you have to submit the written plaint before the chief ministerial officer with appropriate Court fees and process fees.

Court Fees

The court fees vary from case to case. This fee is a nominal percentage of the total value of the compensation you are asking for. The officer will tell you about the amount you have to pay as a court fee or stamp duty while submitting the plaint.

Accept/ reject the plaint

After submitting the plaint in the court of law, if the court finds that the jurisdiction of this court is not proper to deal with this civil suit, the court can return the plaint and intimate about this to the plaintiff so that he could submit the plaint in the appropriate Court.

The court also has the power to reject the plaint on some grounds. These grounds are following:

  • The cause of action is not defined
  • The plaintiff fails to pay the court fees and stamp duty
  • The suit filed by the plaintiff is barred from the limitation act.

These are some conditions in which the court can reject your plaint. In the case of Roop Lal Sathi versus Nachhatter Singh, the Supreme Court of India held that the plaint should be rejected fully not in portions. After the rejection of the plaint, the plaintiff has to file a fresh suit. 

But if the court thinks that the plaint is following all the conditions, the court will accept the plaint.

Service of summons

Summons is an instrument that is used by the courts to intimate the defendant that a suit has been filed against him. The service of summons can be done in many ways. You can read our article on our services of summons to know in full detail. 

Summons contains a date on which the defendant has to appear in the court with their answers alleged in the plaint. 

For the services of summons the plaintiff has to:

  • submit the fee for the service of summons
  • Submitted 2 copies of plaint for each defendant in the court
  • Attach one copy of plaint with the summons and sent by speed post
  • The second copy of the plaint shall be sent by ordinary post.

Appearance of parties

The fixed date is written in the summons served to the defendant. The parties have to appear in the court of law on that date and the defendant has to answer the plaintiff with the written statement. 

If the defendant fails to appear in the court for one or two proceedings, the court can proceed for ex parte order.

Ex Parte order

Ex parte is a decree passed by the court against the defendant without hearing his side or in the absence of the defendant. The court has the power to order ex parte decree in the following circumstances:

  • Where the defendant fails to file the written statement under the given time
  • Where the defendant does not appear in the court for proceedings

In these situations, the court can pass the ex parte decree in the favor of the plaintiff. 

Sometimes it happens that the defendant didn’t receive the summons and the court passes the ex parte decree against him and it can cause trouble for the defendant. That is why the laws have given the caveat petition under the civil procedure code. Caveat petition is the exception for ex parte decree in which the court cannot pass the judgment, decree or order without hearing the defendant. 

Interlocutory proceedings

The period of civil litigation takes a long time for the disposal of the case. It becomes important for the court to pass some orders between the proceedings to save the existing state of things. These orders are called interlocutory orders. The court may pass the following orders:

  • Arrest and attachment before judgment (order 38 of CPC)
  • A temporary injunction (order 39)
  • Appointment of commissioner (order 26)
  • Appointment of the receiver (order 40)

Written statement

When the services of summons are done to the defendant, the court provides 30 days to the defendant to submit his response of plaint which is called a written statement.

If the defendant failed to submit the written statement within 30 days from the date of the service of summon, the court can give an extra 90 days’ time period to the defendant after seeking the permission of the court to submit the written statement. 

You can read our article on a return statement in which we have discussed how you can write a written statement. 

Replication

Replication is a written document that is the reply to a written statement filed by the defendant. If the defendant has filed any counterclaim or set-off in his written statement, the plaintiff can answer with the help of replication. The plaintiff should deny the wrong facts mentioned by the defendant in a written statement, otherwise, it will be considered that the plaintiff has accepted those facts.

This process is called pleadings under the civil suit.

Filing of necessary documents

After the end of pleadings, the court asks both the parties to file and submit their documents which are important for the suit. 

If the document which is important for the suit is under the possession of another person, to take that document from the custody of another to submit it in the court, the person can give the application in the court so that the court issue the summons to the authority or that person in whose possession the document is. The parties have to deposit the cost of such production of documents.

The document submitted by the parties in the court must be the original document. For example, if you are giving the contract of bailment in the court, it must be original and the copy of that document should be sent to the opposite party.

It should be kept in mind that all the necessary documents should be submitted to the court because the person cannot rely on the document which is not submitted in the court of law. 

Framing of issues

The next stage of the civil suit is the framing of issues. Issues are the disputed questions or points in which both the parties do not agree with each other. 

The issues framed by the judge can be related to fact or law. 

Before passing the final judgment, a judge of the civil case deals with every issue separately and also passes the judgment for each issue by giving the reasons.

List of witnesses (order 18)

After framing of issues, the court will ask both parties to give the list of witnesses. The parties have to submit the list of witnesses within 15 days of the framing of issues.

After giving the list of witnesses, either the parties can call their witnesses by themselves or the parties can ask the court to send summons to the witnesses for the appearance in the court.

In a case where the court issued summons to the witnesses, the party will pay the cost for that witness. This fee is known as “diet money”.

The witnesses has to appear in the court on the date which is mentioned in the summoned served to them.

Examination of witnesses (Order 18)

If the defendant does not admit the facts alleged by the plaintiff, the plaintiff has the right to begin and put his side in front of the judge. The Advocate of the plaintiff will state his case in front of the judge. During this process, the plaintiff has to submit his oral and documentary evidence that was marked earlier in the list of witnesses. If any of the evidence was not given earlier in the list, the plaintiff cannot use that document in the examination. Then the plaintiff and witnesses will be cross-examined by the defendant’s advocate.

After the cross-examination, the court gives the right to the defendant party to state their story with the help of witnesses and evidence. Same as the plaintiff, the defendant cannot use such documents which were not marked earlier in the list. After that, the plaintiff’s advocate will cross-examine the defendant and his witnesses.

Arguments in suit

After the examination and cross-examination of the plaintiff and defendant, the next step is arguments. In this step, both parties are allowed to present the summary of the case. 

These arguments are strictly confined to the issues framed.

After hearing the arguments from both sides, the judge will fix a date to give the final judgment.

Judgment (Order 20)

The final statement given by a judge of the case is known as judgment. A judgment is based on the evidence, witnesses and pleadings presented in front of the judge. 

The judge will give his judgment by considering all the issues and giving specific reasons for his statement. 

Decree of the civil suit (Order 20 rule 6)

Once the judge gives his judgment, the concerned clerk will prepare the degree of that judgment. A decree of the suit contains the number of suit names and description of plaintiff and defendant, register addresses of both the parties and it will specify the relief granted by the judge in the suit. 

Appeal, review, revision

When a party gets a decree passed against them, they can further initiate the process with the help of:

  • Appeal
  • Review
  • Revision

Appeal

A party who is not satisfied by the judgment or decree can file an appeal from the decree. There is a limitation period to file the appeal against any decree or judgment. 

  • The limitation period of appeal to the high court is 90 days
  • The limitation period to appeal in the district court is 30 days

After the expiry of this period, the party cannot file an appeal against the degree without giving the application for condonation of delay.

All orders are not appealable.

Review

A party who is not satisfied by the order can ask for a review in a case where:

  • The order passed by the court is not appealable
  • The party found new and important evidence which was not been produced before. 

Revision

The High Court has the power of revision. The high court can interfere in any case which is decided by subordinate courts and the order passed by the subordinate Court is not appealable. There are some conditions in which the high court can use the power of revision:

  • The subordinate Court has used the jurisdiction not vested in it.
  • The subordinate Court has failed to exercise the jurisdiction vested in it.
  • The court has exercised is its jurisdiction illegally.

Execution of decree (order 21)

Execution of decree is an order passed by the court in which the decree-holder compels the debtor of judgment to compensate the decree-holder by giving the money or property given in the decree. 

Conclusion

The given process defines how to file a civil suit in court. This is a theoretical knowledge given in the books. You can use such information to collect your evidence if you are planning to file a civil suit in court. 

You should consult an advocate who will guide you with all the necessary information which you will need during the process of litigation. 


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