Home Civil Procedural Code Section 26 of CPC, 1908

Civil Procedural Code

Section 26 of CPC, 1908

November 10, 2022

10936

This article is written by Tarini Kalra, a BBA-LL.B. student from Fairfield Institute of Management and Technology affiliated with Guru Gobind Singh Indraprastha University, New Delhi. The article discusses the institution of a suit under Section 26 of the Code of Civil Procedure, 1908.

It has been published by Rachit Garg.

Table of Contents

Introduction

Have you ever wondered how a civil suit is filed in a civil court? Let’s make our basics clear first. The administration of civil proceedings in India is governed under the Code of Civil Procedure, 1908 (CPC). Before filing a civil complaint, it is essential to determine the court’s jurisdiction under Section 9 and the place of suing under Section 18 of the CPC. The initial step of the procedure of a civil suit is the institution of the suit under Section 26 of the CPC. The present article provides a detailed study of the provisions of the institution of the suit under Section 26 of the CPC.

What is a suit

The term ‘suit’ is not defined under the CPC, 1908. The Black Law’s Dictionary, 4th edition defines suit as “A generic term, of comprehensive signification, and applies to any proceeding by one person or persons against another or others in a court of justice in which the plaintiff pursues, in such court, the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or in equity.” A suit is a civil process initiated by the filing of a plaint seeking to enforce civil or substantive rights against the state or a person. A suit results in a decree. There can be no decree without a suit.

In the case of Ethiopian Airlines v. Ganesh Narain Saboo (2011), the Hon’ble Supreme Court observed that the term ‘suit’ is a general term that encompasses all actions to be taken by a person to enforce a legal right that has been vested in them by law.

In the landmark case of Hansraj Gupta & Others v. Dehra Dun-Mussoorie Electric Tramway Co. Ltd. (1932), the Privy Council held that a civil proceeding is instituted by the presentation of a plaint.

Suit under the Limitation Act, 1963

The Limitation Act, 1963 governs the laws regulating the limitation of suits and other procedures. An appeal or an application is not considered a suit under Section 2(l) of the Limitation Act, 1963. Section 5 of the Limitation Act, 1963, deals with the extension of the prescribed time frame in certain circumstances. It states that any appeal or application may be allowed even after the limitation period has passed if the appellant establishes to the court that they could not file the appeal or application during the limitation period. If the court is satisfied, the delay in submitting the appeal or application can be excused, regardless of whether the party is a state or a private entity. Section 5 of the Limitation Act, 1963, does not apply to suits.

In the case of F. Liansanga v. Union of India (2022), the Hon’ble Supreme Court held that the authority to exempt delay under Section 5 of the Limitation Act does not apply to suits.

Section 9 of the Limitation Act, 1963 outlines the continuous running of time. When the cause of action accrues, the time runs out. It states that once a period of limitation starts, no subsequent disability or inability can stop it. It applies solely to suits and applications and does not apply to appeals unless the matter falls under one of the exceptions set out in the Act. Section 9 applies when the cause of action or right to petition the court exists on the date of the application.

Essentials of a suit

Parties to the suit

There must be at least two opposing parties: the plaintiff who files the suit for claiming relief and the defendant against whom the plaintiff files for the claim. There is no restriction on the number on either side. Every suit is instituted by the presentation of a plaint. A plaint must be filed by the plaintiff, a representative, a recognised agent, or an advocate for the plaintiff.

Order I, Rule 1 of the CPC, outlines the joinder of the plaintiffs to the suit. All persons may join as plaintiffs if any claim to relief in a single suit arises from the same act or transaction or a series of acts or transactions alleged to exist jointly, severally, or in the alternative, or where any common question of law or fact arises.

Order I, Rule 3 of the CPC outlines the joinder of the defendants to the suits. When any claim to relief is alleged to exist against defendants arising out of the same act or transaction or series of acts or transactions, or when any common question of law or fact would emerge if separate cases were launched against the defendants, all people may join as defendants in a suit.

A misjoinder occurs when a party to the lawsuit is unintentionally added. It is deemed a misjoinder when a party is added but has nothing to do with the dispute. When a party to the suit is not added to the suit, then it is a non-joinder. Order I, Rule 9 of the CPC states that no suit shall be dismissed on the grounds of the misjoinder or non-joinder of parties. This Rule does not apply to necessary parties interpreted as non-joinder.

Cause of action

A cause of action is the set of reasons on the basis of which a lawsuit is instituted in court. It is a set of facts or allegations that constitutes grounds for filing a lawsuit. It includes all the facts pertaining to rights and their infringement. Order II, Rule 2 of the CPC states that a cause of action is essential, and a plaint must mention the cause of action if it is to be instituted as a suit.

In the case of Rajasthan High Court Advocates Association v. Union of India & Ors. (2000), the Hon’ble Supreme Court held that the phrase “cause of action” had a judicially established meaning. It refers to the conditions surrounding the violation of the right or the direct cause of the conduct. In a broader sense, it refers to the conditions required for the suit to be maintained, which include not just the violation of the right, but the violation combined with the right itself. and summarised the phrase to all facts that the plaintiff would have to establish if he were to be traversed to maintain his claim to the Court’s judgement. The cause of action includes every truth that must be proven, as opposed to every piece of evidence that must be given to substantiate each fact.

Subject matter

The set of facts or details about a movable or immovable property that gives rise to a civil dispute to claim remedies is referred to as the subject matter.

The relief claimed by the plaintiff

Relief is a legal remedy available to the plaintiff for a violation of legal rights by the defendant. No remedy will be granted by a court unless the parties to the complaint request it. There are two types of relief: specific and alternative. Specific relief is governed under the Specific Relief Act, 1963.

Institution of a suit under Section 26 CPC

The primary step of civil litigation is the institution of a suit. 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. The affidavit must comply with the specifications mentioned under Order VI, Rule 15A.

Order IV of the CPC outlines the commencement of a suit by plaint. It states that:

Every suit must be instituted by the presentation of a plaint to the Court or any official designated on its behalf.
Every plaint must comply with the rules outlined in Orders VI and VII.
A plaint is not considered to be duly instituted unless it complies with the criteria stated under sub-rules (1) and (2).

Order IV, Rule 1, must be read with Section 26 of the CPC in the extension of the law as provided in the Section. According to this regulation, a lawsuit can only be considered adequately commenced if it is delivered to the court directly or to a proper official designated in this capacity with a plaint or in duplicate. The requirements outlined in Orders VI and VII must be followed by the plaint.

Section 80 of the CPC, requires that a legal notice be served before the filing of a suit if the defendant in the suit is the government or a public officer. However, only some civil suits require serving a legal notice. In certain scenarios, advocates serve legal notice before the filing of civil cases to inform the defendant that the sender of the notice is making the final attempt to resolve the dispute. It is primarily used as a precautionary measure.

The procedural aspect of the institution of suits includes the following:

Preparation of a plaint
Choosing the appropriate place of suing
Presentation of the plaint

Plaint – a necessary tool for the institution of a suit

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;
Relief which 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.

Rejection of a plaint

Order VII Rule 11 outlines specific grounds for the rejection of a plaint. The grounds for rejection of the plaint are:

No cause of action is disclosed;
When the remedy sought is undervalued and the plaintiff fails to update the valuation after being ordered by the court to do so within a set period;
When the remedy sought is correctly valued but the plaint is insufficiently stamped and the plaintiff is requested by the court to provide the necessary stamp paper within a deadline determined by the Court but fails to do so;
Where the statement in the plaint suggests that the suit is prohibited by any law;
If it is not filed in duplicate;
When the plaintiff does not comply with provisions of Rule 9.

In the case of Kavita Tushir v. Pushpraj Dalal (2022), the Delhi High Court rejected the application of a plaint stating that there could be no piecemeal rejection of the plaint. “Piecemeal rejection” of a plaint means that a plaint must be rejected as a whole, not partly.

Appropriate place of suing

Section 15 to Section 20 of the CPC deal with the place of suing.

According to Section 15, the plaintiff must file the suit in court with the lowest competency level.

Section 16 states that suits should be instituted within the local jurisdiction where the property is located in the case of:

Recovery of immovable property with or without rent or profits;
Partition of immovable property;
Foreclosure, sale or redemption of a mortgage or charge upon immovable property,
Determination of any other right or interest in immovable property;
Compensation for damage to immovable property;
Recovery of movable property under distraint or attachment.

When a suit is filed for relief or compensation for a wrongful act to immovable property by a defendant or any other person on his behalf and the relief can be obtained through his personal attendance, the suit may be filed in a court within the local jurisdiction where:

the property is located;
the defendant resides, carries on business or personal for gains.

This concept is based on the legal maxim “equity acts in personam” which means “equity applies to a person rather than a property.”

Section 17 discusses the jurisdiction of suits for immovable property located within the jurisdiction of different courts. When immovable properties are located in separate jurisdictions, the suit may be filed in any court within the local jurisdiction where any portion of the property is located, provided that the cause of action for both properties is the same.

In the case of Shivnarayan v. Maniklal (2019), the Hon’ble Supreme Court ruled that under Section 17 of the CPC, the term ‘property’ might refer to more than one property. Suits brought for different properties can be brought in any court with jurisdiction if the cause of action is the same.

Section 18 outlines the place of institution of the suit where the jurisdiction of courts is uncertain. If there is uncertainty about the jurisdiction of the institution of a suit of immovable property between two or more courts, then a statement must be recorded to that effect by any of the courts if the court is satisfied with the uncertainty and proceeds to entertain or dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situated within the local limits of its jurisdiction, provided that the institution of the suit is in a competent court with respect to the nature and valuation of the suit to exercise jurisdiction.

When a statement is not recorded pursuant to Section 18(1) and an objection is brought before an Appellate or Revisional Court that a decree or order in a suit relating to such property was made by a court not having jurisdiction where the property is situated, they shall not allow the objection unless they presume there was no reasonable ground for uncertainty as to the court having jurisdiction at the time of the institution of the suit and there has been a consequent failure of justice.

Section 19 deals with suits for compensation of wrongful activity to a person for movable property. When a suit is for compensation for the wrong done to a person or to movable property, the plaintiff has a choice as to the institution of the suit within the local limits of the jurisdiction where the defendant resides, carries on business, or works for personal gain, or within the jurisdiction where the property is situated.

Section 20 is a residuary provision of a place of suing. It deals with the institution of suits where the defendant resides, carries on business, works for personal gain, or where the cause of action wholly or partly arises within the local jurisdiction of the court. When there is more than one defendant at the time of the commencement of the suit, the suit can be instituted where any of the defendant or defendants resides, carries on business, or works for personal gain, provided that the plaintiff obtains leave from the court. If the defendants consent to the place of institution of the suit, then there is no need to obtain leave from the court.

Presentation of plaint

Order VII Rule 9 specifies the procedures for admitting a plaint. It states that the court orders that the summons be served on the defendants in accordance with Order V, Rule 9, and that the plaintiff must submit as many copies of the plaint as there are defendants, along with the prescribed fee for serving the summons on the defendants, within seven days of the date of such an order. The plaintiff shall pay the requisite fee for the serving of the summons on the defendants within the time fixed by the court. When a plaintiff sues a defendant or defendants, the plaintiff must declare in what capacity the defendant or defendants are being sued in order to act in a representative capacity. In order to make these statements consistent with the plaint, the plaintiff may seek leave from the court. The chief ministerial officer of the court shall sign such lists, copies, or statements if he considers them to be correct upon investigation.

Jurisdiction of courts with respect to suits of civil nature

Jurisdiction is primarily determined by the following factors:

Valuation of suit;
Territorial boundaries of a court;
The subject matter of court.

The kinds of jurisdiction are mentioned as follows:

Pecuniary Jurisdiction

The term ‘pecuniary’ refers to money. It empowers the courts to determine matters of monetary subject matter. A court has jurisdiction over those suits where the value of the suit does not exceed the pecuniary jurisdiction. Presently, the pecuniary jurisdiction of the district court is up to Rs 2 crore.

Territorial jurisdiction

Each court has geographical boundaries outside of which it cannot function and exercise authority. The government alters these restrictions. The district judge must exercise authority within the district. The High Court only has jurisdiction over the state where it is located.

Subject matter jurisdiction

The power granted to a court to hear cases involving a specific subject is subject matter jurisdiction. The courts cannot hear cases whose subject matter falls outside of their jurisdiction.

Concurrent jurisdiction

Concurrent jurisdiction exists when two or more courts from different legal systems have jurisdiction over the same matter.

Exclusive jurisdiction

The power to hear a case before one court or tribunal is called exclusive jurisdiction. No other court or authority may deliver a judgement or decide the case or class of cases.

Appellant jurisdiction

Appellate jurisdiction refers to a court’s ability to hear cases from subordinate courts. While exercising its appellate jurisdiction, the superior court may quash the lower court’s decision, order the lower court to hear the case again, order the lower court to take additional evidence, and make any other order it deems appropriate.

Original jurisdiction

The power of a court to hear or try a case in the first instance is referred to as original jurisdiction. Original jurisdiction requires that a particular type of case be initiated and tried in the lowest court in the hierarchy before proceeding to the next court in that hierarchy if necessary. Within the guidelines set forth by the law, a court with original jurisdiction may hear the matter, reach various findings, and issue orders.

Special jurisdiction

The courts are granted the authority to hear cases of a specific nature. The Hon’ble Supreme Court ruled in Harshad S. Mehta & Ors v. State of Maharashtra (2001) that the special court has exclusive jurisdiction to adjudicate a matter, which is given to the Special Court by the act or the statute that established the court and not by committal.

Legal jurisdiction

In legal jurisdiction, all courts are administered by the law of the land, including statutes, precedents, customs, equity, justice, and good conscience.

Scope and applicability of Section 26

In a civil lawsuit, the burden of proof lies on the plaintiff. The plaintiff must establish that the accusations against the defendant are true and the defendant is liable for damages. A plaint must include all required information and supporting documentation. Additionally, the necessary court expenses should be included with the plaint. A small fraction of the overall claim or suit value is used as court costs. The Court Fees Act, 1870, and the Stamp Act, 1899 specify the required amounts of court fees and stamp duty depending on the type of suit.

Section 9 of the CPC deals with the jurisdiction of courts to try all suits of a civil nature except those suits in which the cognizance is not expressly or impliedly barred.

Suits expressly or impliedly barred

Suits expressly barred:

A suit barred by a statute in effect is a suit expressly barred. A competent legislature may limit the civil court’s ability to hear a certain kind of civil suit, provided that it does so without violating any constitutional provisions and remains within the purview of the legislative authority granted to it. As a result, when a suit is specifically excluded by the law currently in effect, it cannot be filed.

Suits impliedly barred:

A suit is said to be impliedly barred if it is prohibited by general legal principles. Based on public policy, even civil lawsuits are similarly excluded from civil court jurisdiction. A person who needs a remedy in a different form than what is provided by statute is therefore denied when a specific remedy is provided by statute.

Formalities after the institution of a suit

The beginning and institution of the suit before a court or such officer appointed in this regard are outlined in Order IV Rules 1 and 2.

The issue of summons to the defendant or defendants is covered under Section 27. A summons to appear and answer the claim is sent to the defendant on the day that is not more than thirty days after the suit has been instituted, and it is served in the manner specified.

Section 28 deals with serving summons to defendants who are residents of other states. A summons must be sent to the court in another state in compliance with the rules in force in that state. The court to which such a summons is conveyed must act as though it has issued the summons itself. The court must return the summons, along with a record of its proceedings, to the court that issued the summons.

When the summons sent for service in another state is in a language other than the language of the record, a translation of the record must be supplied:

The translation must be provided in Hindi if the court issues the summons in that language;
Where the record is in a language other than Hindi or English, the translation must be given in Hindi or English and delivered with the record.

Section 29 deals with serving the foreign summons. Summons and other legal documents must be produced by:

Any Civil or Revenue Court established in India, regardless of where the CPC does not apply;
Any Civil or Revenue Court established or maintained by the Central Government outside of India, or
Any other Civil or Revenue Court outside of India to which the Central Government has declared the provisions of this section to apply by notification in the Official Gazette can be delivered to the Courts in the regions covered by this Code and served as if they were summons issued by those courts.

Section 31 addresses witness summons. The provisions of Sections 27, 28, and 29 shall apply to any summons to produce documents or other material objects or to provide testimony.

Conclusion

Every right has a remedy, or “Ubi jus, ibi remedium,” which is one of the fundamental principles of the legal system. A plaintiff may file a civil lawsuit to obtain compensation for losses the defendant has caused. A plaint must include all relevant information and serves as the first step in the documentary process of the institution of civil litigation. However, the onus of proof is on the plaintiff as the plaintiff files the suit and states the facts and legal grounds. The plaintiff must convince the court and support every allegation made against the defendant by presenting the true facts and reasonable grounds for the institution of the suit.

Frequently asked questions (FAQs)

Can a suit be filed without any cause of action?

No, a suit cannot arise without a cause of action.

When can a plaint be rejected?

A court can reject suo motu. A plaint can be rejected at any stage of the suit but before the verdict is rendered.

Can a plaint be partially rejected?

A plaint cannot be partially rejected. However, in the case of Dr Sanjiv Bansal v. Dr Manish Bansal (2022), the Delhi High Court remarked that Order VII, Rule 11(d) of the CPC, 1908, specifies that a plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law, and Order VI, Rule 16 of the CPC, allows the court to strike out any part of the pleading at any point in the proceedings that appear to be an abuse of the court’s procedure or is inappropriate, scandalous, unreasonable, offensive, or harmful.

What is the remedy available for the rejection of the plaint?

A fresh suit can be instituted by the plaintiff under Order VII, Rule 13.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Section 26 of CPC, 1908

Introduction

What is a suit

Suit under the Limitation Act, 1963