By- Rishabh Vora and Sukhada Wagle, Hariani & Co.

The practice of litigation is the reason most students are attracted to the idea of becoming lawyers. The judicial system in India does suffer from certain inherent defects as a result of which litigation tends to get fairly protracted. However, litigation is the only recourse available to assert one’s rights in law. Therefore, as exciting as the idea of arguing a case before the Hon’ble High Court or the Supreme Court for that matter is, it is necessary to first understand the fundamental components of initiating proceedings to enforce a remedy available and successfully seeking a relief in respect thereof.

During the course of investigation of title and transfer of flats, disputes arise. These disputes are mainly on account of claims by third parties or denial of rights of a party by the other. One is left with no other option but to enforce one’s remedies and this is the starting point for litigation.

So let’s take a look at some of the aspects of law that one needs to know whilst initiating/defending litigation:

  • Cause of Action – Foundation of a legal proceeding

A precursor to initiating any proceeding is the cause of action. It is the sine qua non to the filing of a maintainable suit. The term “cause of action” has not been defined in the Code of Civil Procedure, 1908. It can be described as “a bundle of essential facts which is necessary for the Plaintiff to prove before it can succeed.” What happens if the plaint does not disclose a cause of action? Whether a particular set of facts constitute a cause of action is subject to the adjudication by the Court and failure to disclose a cause of action renders the plaint liable to be rejected, may be at even a preliminary stage by an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908.

The classic definition of the expression as quoted in Cooke vs. Gill reads as follows: “Cause of action means every fact which it would be necessary for the Plaintiff to prove, if traverse, in order to support his right to the judgment of the court”.

The purpose behind the requirement that the plaint should indicate when the cause of action arose is to help the Court not only in ascertaining whether or not the suit is barred by limitation but also in adjudicating whether the plaintiff is entitled to any relief as sought for. For example in a suit for possession against the tenant on the ground of non-payment of rent, the period for which the tenant has been in default must be stated.

  • Remedy – Enforcement of rights and seeking appropriate relief

Every cause of action or rather the contravention of any right of an individual entitles him/ her to a remedy to enforce that right and thereby seek an appropriate relief,giving life to the age old maximubi jus ibiremedium.As a result of comprehensive laws and progressive statutes enacted by the Government over the past few years, an individual is armed with more than just one remedy to enforce a right. However, as a lawyer, it is necessary to ascertain which remedy is the most effective and beneficial.

  • Jurisdiction – to hear, determine, adjudicate and exercise judicial power

Even more vital than knowing which remedy is effective, is being absolutely sure that a proceeding sought to be instituted to seek any relief is maintainable.This leads us to the question of jurisdiction.

Jurisdiction may be defined to be the power or authority of a Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it. Thus jurisdiction of a Court means the extent of authority of a Court to administer justice prescribed with reference to the subject matter, pecuniary value and local limits.

Although the civil court is considered to be the general forum for enforcement of rights, in many of the statutes, the jurisdiction of civil court is barred. There are quite a few legislations which are self-contained codes and which themselves provide for the redressal machinery.

For deciding the jurisdiction of a Civil Court, the averments in the plaint are material and the jurisdiction should normally be decided on the basis of a case put forward by the Plaintiff in its plaint and not by the Defendant in its written statement.  However, this does not imply that the Plaintiff cannot bydrafting the plaint in a certain manner invest jurisdiction in a Court which does not possess it.

  • Territorial or local jurisdiction – r/w Leave under Clause XII of the Letters Patent:

Every Court has its own local or territorial limits beyond which it cannot exercise its jurisdiction.  For example, the High Court has jurisdiction over the territory of a State within which it is situated and not beyond it.  Therefore, a Court would normally not have jurisdiction to try a suit for immovable property situated beyond its local limits.

What happens if the immoveable property being the subject matter of the dispute is in Mumbai, the contract for purchase of the same was entered into in Mumbai, the Plaintiff/ Purchaser resides in Mumbai but the Defendant / Vendor resides in Gujarat? If you’re thinking that since there’s a whole lot of stuff happening in Bombay, the jurisdiction ought to be Bombay, you’re half right. However, though the Defendant resides in Gujarat a material part of the cause of action has arisen within the jurisdiction of the Hon’ble Bombay High Court and therefore, it would be necessary to obtain leave of the Hon’ble Bombay High Court under clause XII of the Letters Patent prior to filing of any proceedings in Bombay High Court.

  • Pecuniary jurisdiction 

The Civil Procedure Code, 1908 provides that a Court has jurisdiction only over those suits the amount of value of the subject matter of which does not exceed the pecuniary limits of its jurisdiction.  At the same time, some Courts viz. the High Court, have unlimited pecuniary jurisdiction.

  • Jurisdiction as to subject matter 

Different Court have been empowered to decide different types of suits and at the same time are precluded from entertaining certain other suits. For example – Section 41 of the Presidency Small Causes Courts Act, 1882 provide the Small Causes Court with exclusive jurisdiction to try and entertain all proceedings related to a landlord-tenant / licensor-licensee relationships.  A natural corollary to the aforesaid provision is that other Civil Courts are precluded from entertaining any proceedings connected to landlord-tenant / licensor-licensee relationships.

The various aspects of the dispute such as claim value, location of the property and reliefs sought for determine the jurisdiction of the forum. Thus, apart from the substance of the dispute, it is very necessary to approach an appropriate forum for seeking remedies and enforcement of rights. Any mistake in this would not only deprive one of its remedy, but also would be a futile exercise causing wastage of time and money.

  • Limitation –Equity aids the vigilant, not those who slumber on their rights 

Whether the proceeding is filed within the period of limitation is crucial to determine the maintainability of a suit. Filing the proceeding without any delay ensures the party to seek appropriate interim reliefs if any. There are provisions for delay being condoned under specific circumstances, delay and laches in filing of the certain proceedingsobstruct the chances of achieving the desired relief.

  • Averments and Prayers/ reliefs that you are seeking 

Averments made in the suit play a vital role in determining whether the Plaintiff is entitled to any reliefs. In certain suits certain averments are necessary to be pleaded such as in Summary Suit you are required to write that “ The Suit is under Order XXXVII of the Code of Civil Procedure 1908”. As also in a suit for specific performance of an agreement the Plaintiff must state that he was and is ready and willing to perform his part of the agreement.

The Plaintiff must state specifically the reliefs claimed by the Plaintiff either simply or in the alternative.  The reliefs sought by the Plaintiff from the Hon’ble Court are embodied in the plaint, in the form of prayers.  The importance of clear drafting of the prayers cannot be overstated. It is not only the foundation of the Plaint but also a crystallization of the reliefs sought by the Plaintiff and consequently the purpose of instituting the proceedings in the first place.  However it is well settled that where a question arises as to whether the Plaintiff has asked for a particular relief in his plaint, the plaint must be read as a whole and substance of the matter and not the form thereof should be considered.

There are various statutes which govern the rights of parties and their remedies. Apart from the disputes between private parties, in many cases, there is interference by the government authorities. Some of the statutes have been enacted in the nineteenth century and are still in force. Whilst dealing with the real estate law one has to also rely on the huge bank of judicial pronouncements.

A five part lecture series on “Real Estate Laws” is being offered by Hariani & Co. Advocates & Solicitors, to be held in the first week of August at the Indian Merchants’ Chamber, Mumbai, as part of its Silver Jubilee Celebrations. The lecture series, supported by iPleaders and Government Law College, Mumbai will provide a snapshot on the relevant aspects that must be kept in mind during litigation. With its vast experience in the litigation involving real estate disputes, the lectures offered by Hariani & Co. bestow an insight of the various aspects of litigation.

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To register for the lecture series click here.



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