In this article, Hardeep Singh of 3rd year, Campus Law Centre discusses the Procedure for filing a civil case in India.
Civil cases involve a conflict between people or institutions, generally over money. A civil suit begins when a legal person claims that he has been harmed by the actions of another person or business and asks the court for relief by filing a “complaint”. Most of the civil suits are guided by the well settled principles of the Code of Civil Procedure.
Stages of a Civil Case
Generally, there are six main stages involved in a civil lawsuit. These stages are listed below:
- Pre Filing: The pre filing stage is when the dispute arises and the parties make demands, try to negotiate the matter between them without taking a legal recourse. However, if they fail to reach a resolution then the parties prepare for the possibility of a court action.
- Initial Pleading: At this stage, one party files papers/documents i.e., a complaint to start the court action, and the other party files their response to such complaint i.e., a motion or an answer.
- Discovery: At this stage, both the parties exchange documents and responses filed by them in court and learn about the strengths and weaknesses of the other side’s case.
- Pre- Trial: At this stage, both the parties start preparing for trial, they get their evidence and witnesses in order. Even at this stage they might engage in some out of court settlement conference, after such an attempt the parties may file motions with the court to resolve the case or to limit the issues for trial.
- Trial: At this stage, the case is actually heard by the judge or a jury (which may last for a couple of hours or a couple of months, depending on the complexity of the case), witnesses are examined, evidence is presented, and the case is eventually decided and a judgement is pronounced.
- Post Trial: At this stage, one or both of the parties might file an appeal challenging the judgement passed.
However not every civil case follows these stages. Some cases like summary suits, have unique procedures that are set out in the Code of Civil Procedure.
Procedure for Filing a Civil case in India
There is a detailed process laid down in Code of Civil Procedure, for filing a civil case. However, if the process is not followed, then the “registry” has a right to dismiss the suit. “Registry here means an office which every court have which provides the information about any court matter and court forms”.
The procedure for filing a civil suit is as follows:
Filing of Suit/Plaint
The first step to initiate a suit is to file a plaint. A plaint is a written complaint or allegation. The party who files it is known as “plaintiff” and the party against whom it is filed is known as “Defendant”.
A Plaint contains:
- Name of the Court
- Name and Addresses of the parties between whom the dispute arose
- Subject (a brief statement telling about the sections and orders under which the jurisdiction of the court is evoked)
- Main Content or submissions made by plaintiff
- Verification from plaintiff stating that the contents of the plaint are true and correct.
Vakalatnama is a written document, by which the parties to the suit authorises an Advocate to represent them before the Hon’ble Court. However, if the party is personally representing its own case, then they need not file a Vakalatnama.
Some of the General Terms and Conditions that a Vakalatnama may contain:
- That the client will not hold the Advocate responsible for any decision
- That the client has to bear all the cost and expenses incurred during the proceedings
- That the advocate will have a right to retain the documents, unless complete fees is paid
- That the client is free to disengage the Advocate already appointed, at any stage of the Proceeding
- That the advocate shall have all the rights, to take decisions on his own during the hearing in the court of Law, in the best interest of his client.
Filing of Plaint
Next step is filing of the plaint before Chief Ministerial Officer (Sherestedar) at the filing counter, along with appropriate court fee and process fee(For different types of documents, a person has to pay different amount of Court fees.)
Court fees is a nominal percentage of the total value of the claim or the value of the suit. The requisite amount of Court fees and stamp duty is different for every suit, and the same is mentioned in the “Court Fees Stamp Act”.
Some of them are as follows:
- In case of plaint/written statement – Rs. 10 if the value of the suit exceed Rs. 5,000/- upto 10,000/-
- In case of plaint filed in a suit for possession – Rs. 5
- On a copy of a Decree or order – 50 paise
Court fees as per value of the Suit
- If the value of the suit exceeds Rs. 1,50,000-1,55,000 – Rs. 1700/-
- If the value of the suit exceeds Rs. 3,00,000-3,05,000 – Rs. 2450/-
- If the value of the suit exceeds Rs. 4,00,000-4,05,000 – Rs. 2950/-
How proceedings are conducted
If on the first day of hearing, the court thinks that there is merit in the case, it will issue a notice to the opposite party, calling upon him to submit their arguments on a date fixed by the court.
After the notice is issued the plaintiff is required to do the following:
- File requisite amount of procedure-fee in the court.
- File 2 copies of plaint for each defendant in the court
- Of the 2 copies filed for each defendant, one copy shall be sent by Speed post/Courier/Regd. A.D. and the other copy shall be sent by Ordinary Post.
- Such filing should be done within a period of seven days from the date of order/notice.
Written Statement by Defendant
- Once the notice has been issued to the defendant, he is required to appear on the date mentioned in the notice. However, before appearing on the date, the defendant is required to file his “written statement” i.e., his defence against the allegation raised by the plaintiff.
- The written statement should be filed within 30 days from the date of service of notice, or within such time as given by the court.
- The maximum period that can be extended for filing of Written Statement is 90 days, after seeking permission of the court.
- The written statement should specifically deny the allegations, which according to defendant is wrong and false. Any allegation, not specifically denied, is deemed to be admitted.
- The written statement should also contain a verification from the Defendant, stating that, the content of the Written Statement are true and correct.
Replication by Plaintiff
The next step for plaintiff, once the Written Statement is filed by the Defendant, is to file a replication. Replication is a reply against the written statement, filed by the Plaintiff. The defences made by the Defendant in written statement is to be specifically denied by the Plaintiff in Replication. Anything which is not denied is deemed to be accepted.
Once the Replication is filed, the pleadings are stated to be complete.
Filing of Other Documents
After pleadings are completed and both the parties have filed their submissions, both the parties are given an opportunity to produce and file documents that are substantial to their claims. The procedure for filing other documents are as follows:
- There may be a situation where documents filed by one party is admitted by the opposite party.
- There can be another situation where the documents filed are denied by the opposite party. In that case it can be admitted by the witness produced by the party whose documents are denied.
- Once the documents are admitted, it shall be taken on record and all the details of suit shall be inscribed on the document as per Order 13 Rule 49 of Code of Civil Procedure.
- It is mandatory that any document which is filed by the parties must be “original” and a copy of such document shall be provided to the opposite party.
- Any document which is not filed or produced cannot be relied on during final arguments.
Framing of Issues
- The next stage in a civil proceeding is Framing of Issues. Issues are framed by the court on the basis of which arguments and examination of witnesses takes place.
- Issues are framed, keeping in view the disputes in the suit, and the parties are not allowed to go outside the purview of ‘Issues”.
- Issues framed may be of Fact or of Law.
- At the time of passing final order, the court will deal with each issue separately, and will pass judgements on each issue.
List of Witness/Cross Examination
- All the witnesses that the parties wish to produce, and examined, have to be presented before the court within 15 days from the date on which issues are framed or within such other period as the court may fix.
- Both the parties to the suit have to file a list of witnesses.
- The parties may either call the witnesses by themselves, or the court can ask the same by sending summons to witnesses.
- In case summons are issued by the court, then the party who asked for such presence of a witness, has to deposit money with the court for their expenses. This money deposited is known as “Diet Money”.
- On the date of hearing, the witnesses produced before the court will be examined by both the parties and once the cross examination is over at this stage the court will fix a date for final hearing.
- On the day of final hearing, the arguments takes place which should be strictly confined to the issues framed.
- After hearing the final arguments of both the parties, the court shall pass a “final order”, either on the day of final hearing itself or on some other day fixed by the Court.
- However, before the final arguments, the parties to the suit can amend their pleadings with the permission of the court.
Appeal, Reference and Review
When an order is passed against a party, such party can further initiate the proceedings by way of:
- Reference, or
However, there are certain technicalities in filing an appeal, these are stated as follows:
- In case the value of the suit does not exceed Rs. 10,000, an appeal can only be filed on the question of law
- In case a decree is passed against the Defendant as “Ex-Parte” no appeal is allowed
Procedure for Appeal
- The appeal has to be filed in the prescribed form, signed by the appellant, along with a certified copy of the order
- If the appeal filed is against a decree for payment of money, the court may order the petitioner to deposit the disputed amount
- Any issue which was not taken up by the appellant, in lower court, cannot be subsequently taken up in the appeal filed. The appeal lies only against those points which have been decided by the lower court; whether they were correct or not.
SAMPLE OF A CIVIL SUIT FILED UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT
IN THE COURT OF JUDICIAL MAGISTRATE 1ST CLASS, PATIALA.
Shashi Bansal aged about ___ years, son of Sh.Satpal Bansal, resident of House No.611, Sector 4, Panchkula (Haryana), through his Special Power of Attorney Rupesh Garg (Adhaar Card No. 8139 5914 2649) son of Raj Kumar Garg, resident of Flat No.17-D, City Centre Apartments, Patiala (Punjab). …Complainant
- M/s. Allychem Laboratories E-68-69, Focal Point, Dera Bassi District Mohali – 140507 through its Directors
- Ranjan Jain, Authorized Signatory, M/s. Allychem Laboratories, E-68-69, Focal Point, Dera Bassi District Mohali – 140507.
- jagmohan Arora, Director, M/s. Allychem Laboratories, E-68-69, Focal Point, Dera Bassi District Mohali – 140507.
- Ajay Kumar Chauhan, Director M/s. Allychem Laboratories, E-68-69, Focal Point, Dera Bassi District Mohali – 140507.
- Khushal Pal Singh, Director, M/s. Allychem Laboratories, E-68-69, Focal Point, Dera Bassi District Mohali – 140507. …Accused Complaint under section 138 of Negotiable Instrument Act read with section 420 IPC.
It is respectfully submitted as under:-
- That the present complaint is being filed by the complainant through his Special Power of attorney namely Rupesh Garg son of Raj Kumar Garg, resident of Flat No.17-D, City Centre Apartments, Patiala (Punjab), who is even otherwise, well conversant with the facts of the present case. The power of attorney was duly attested by Sh. Y.P. Mahajan, Notary Public on dated 29.12.2017.
- That the complainant has retired from Food Corporation of India and was personally known to the accused/directors i.e. Jagmohan Arora, Ajay Kumar Chauhan, Khushal Pal Singh and also known to authorized signatory Ranjan Jain. All the accused all had visiting relations with the complainant and as such, the accused gained mutual and good faith of the complainant.
- That the accused borrowed Rs.15,00,000/- from the complainant i.e. Rs.10,00,000/- through cheque on dated 3.4.2012 and Rs.5,00,000/- in cash, for the purpose of their business needs as the accused are perpetuating their business under the name and style of M/s. Allychem Laboratories and all the accused gave assurance to return the said amount. The complainant having mutual faith believed the accused to be true.
- That the complainant many a times approached and requested the accused for return of above said amount, but the accused have been dillydallying the matter on one pretext or other.
- That thereafter, the complainant again approached and requested the accused to return the money but the accused firstly put off the matter and then in discharge of their legally enforceable liability/ debt, the accused issued three cheques from their company’s account duly signed by authorized signatory as well as directors in favour of the complainant towards return of above said amount. The accused issued three cheques i.e. cheque No.049926 dated 18.11.2017 for Rs.5,00,000/-, cheque No.049927 dated 18.11.2017 for Rs.5,00,000/- both drawn at Union Bank of India, Branch Main Branch, Chandigarh from their account No.309301010040712 in favour of the complainant and cheque No.032296 dated 18.11.2017 for Rs.5,00,000/- drawn at Punjab National Bank, Branch Sector 22 D, Chandigarh from their account No.0095008700568839 in favour of the complainant. The accused assured the complainant that whenever the cheque would be presented for encashment there would be sufficient funds in their account and the complainant received the cheque by believing the accused to be true. The said cheques were issued by the accused No.1 which was signed by its authorized signatories and directors. Further, the accused being Directors of the Company are responsible for day to day business and affairs of 4 the Company and the issuance of said cheques in discharge of their legally enforceable liability/debt is well within the knowledge of Directors of Company, who have been arrayed as addressees in this notice.
- That out of above said cheques, as per the assurance of the accused, the complainant presented the cheque bearing No.049926 dated 18.11.2017 for encashment /clearance and the same were sent to the banker of the accused, but the said cheque was returned un-cashed to the complainant with a memo dated 20.11.2017 indicating, “Funds Insufficient” of the person issuing the said cheque and as such the said cheque was returned uncashed to the complainant.
- That then the complainant got served a legal notice on 04.12.2017 upon the accused through his counsel under section 138 Negotiable Instrument Act bringing to their knowledge about the dishonour of the cheque on account of the reason mentioned above and requested the accused to make the payment of cheque amount within a period of 15 days from the date of receipt of legal notice. Notice was sent to the accused through registered post, but neither the accused responded to the legal notice nor made the payment of cheque amount till date, hence this complaint. 5
- That the accused issued the cheques with malafide intention and knowingly that the cheques would be dishonoured due to above said reason and as such, the aforesaid cheques was not honoured and as such the accused have played fraud with the complainant, which falls wi*thin the four corner of section 138 Of Negotiable Instrument Act read with section 420 IPC.
- That after borrowing the amount the accused deliberately took much time for return of payment and later on the accused deliberately put off the matter with ulterior motive but the accused cannot escape from their liability and the issuance of cheques is conclusive proof of liability towards all the accused.
- That the above said cheque was presented and dishonoured at Patiala within the jurisdiction of this Hon’ble Court, hence this Hon’ble Court has got jurisdiction to try and decide the present complaint and to take cognizance of the offence committed by the accused.
It is therefore, prayed that the action be initiated against the accused under section 138 of the Negotiable Instrument Act and the accused be summoned and tried and be punished in accordance with law for the offence committed by him.
It is further prayed that in addition to the prescribed punishment under section 138 of Negotiable Instrument Act, the accused may be fined double the amount of the cheque in question by this Hon’ble Court. Submitted by; Dated: …
Complainant Through Counsel:
List of witnesses:-
- Official of the bankers of the complainant alongwith relevant record.
- Official of the banker of the accused alongwith relevant record.
- Any other witness if required would be examined.
List of documents attached with the complaint.
- Photocopy Power of Attorney
- Original cheque
- Original Bank Memo
- Office Copy of Legal Notice
- Original Postal Receipts
- Bank Statement.
- List of Directors as per website.
IN THE HON’BLE COURT OF:
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
(1) ORIGINAL CONSUMER COMPLAINT NO. OF 20
(U/s 21 (a) (i) of the Consumer Protection Act, 1986)
(2) FIRST APPEAL NO. OF 20
(U/s 19 of the Consumer Protection Act, 1986)
(3) REVISION PETITION NO. OF 20
(U/s 21 (b) of the Consumer Protection Act, 1986)
(4) TRANSFER PETITION/APPLICATION NO. OF 20
(U/s 22 B of the Consumer Protection Act, 1986)
_____________________________________ NO. OF 20
IN THE MATTER OF :
___________________________________________…Complainant (s) Petitioner (s)
______________________________________ Complainant (s)/ Petitioner (s) / Appellant (s) / Respondent (s) / Caveator (s) in the above Original Consumer Complaint/Revision/First Appeal/ Transfer Petition etc. do hereby appoint and retain Mr……………………., Advocate, National Consumer Disputes Redressal Commission, New Delhi, as my/our counsel to plead and argue on my/our behalf. He is fully authorized to sign every relevant document and file any application (s). He will inspect the court files and records and will obtain certified copies of orders and documents. He will continue to be my/our counsel in every further proceedings of Review, Revision, Appeal etc. I/We undertake to pay the full fee of my/our counsel along with full misc. expenses charges before first argument of the above case before National Consumer Disputes Redressal Commission, New Delhi. If the entire settled fee is not paid as and when demanded, then the counsel is not bound to appear in the court and attend any work on my/our behalf. If the matter is decided or any order is passed against me/us then the counsel will not be responsible and answerable for the same in any manner. Also, he is fully authorized to engage any other counsel along with him or in his place. I/we also agree to pay such new counsel engaged by my/our counsel. The counsel will be entitled to receive and retain any cost awarded to me/us as his extra cost of appearances apart from his fee. He will not be responsible to pay any cost awarded against me/us. Every act done by the counsel in good faith will be binding on me/us.
Dated this ____________ day of____________, 20
Signature of Complainant (s)/
Appellant (s)/Revisionist (s)/
Respondent (s)/Caveator (s)
MEMO OF APPEARANCE
National Consumer Disputes
Kindly enter my appearance on behalf of the Complainant (s)/ Petitioner (s) / Appellant (s) / Respondent (s) / Caveator (s) etc in the above mentioned matter.
IN THE HON’BLE HIGH COURT OF ………………..
_____________________________________ NO. OF 20
IN THE MATTER OF :
___________________________________________… Petitioner (s)
______________________________________ Petitioner (s) / Appellant (s) / Respondent (s) / Caveator (s) in the above Writ Petition/ Revision/First Appeal/ Second Appeal, etc. do hereby appoint and retain Mr. …………………………., Advocate, as my/our counsel to plead and argue on my/our behalf. He is fully authorized to sign every relevant document and file any application (s). He will inspect the court files and records and will obtain certified copies of orders and documents. He will continue to be my/our counsel in every further proceedings of Review, Revision, Appeal etc. I/We undertake to pay the full fee of my/our counsel along with full misc. expenses charges before first argument of the above case. If the entire settled fee is not paid as and when demanded, then the counsel is not bound to appear in the court and attend any work on my/our behalf. If the matter is decided or any order is passed against me/us then the counsel will not be responsible and answerable for the same in any manner. Also, he is fully authorized to engage any other counsel along with him or in his place. I/we also agree to pay such new counsel engaged by my/our counsel. The counsel will be entitled to receive and retain any cost awarded to me/us as his extra cost of appearances apart from his fee. He will not be responsible to pay any cost awarded against me/us. Every act done by the counsel in good faith will be binding on me/us.
Dated this ____________ day of____________, 20
Signature of Petitioner(s)/
Appellant (s)/Revisionist (s)/
Respondent (s)/Caveator (s)
OFFICE: L-1 South Extension
MEMO OF APPEARANCE
Hon’ble Punjab & Haryana High Court
Kindly enter my appearance on behalf of the Petitioner (s) / Appellant (s) / Respondent (s) / Caveator (s) etc in the above mentioned matter.