The typical procedure for trial of a civil case and its different stages is governed as per the provisions of the Code of Civil Procedure 1908 (“CPC”) and the Rules of the respective Courts.
A Civil Suit is instituted by filing of a plaint before the Civil Court of competent jurisdiction. At the outset, it is important to ascertain the cause of action, the parties against which the cause of action has arisen and the Court which is competent to hear the matter i.e. the Court where the suit will be instituted.
Typical stages of a Civil Suit as per the provisions of CPC are as under:
1. Institution of suit: As per the CPC, Section 26(1), a civil suit is instituted by the presentation of a plaint accompanied with an affidavit in support of the facts pleaded therein. The particulars to be contained in a plaint have to be as provided under Order 7 of CPC which states that a plaint shall contain the following:
i Name of the Court in which the suit is to be filed
ii Name, description and place of residence of the Plaintiff
iii Name, description and place of residence of the Defendant so far it can be ascertained
iv Where the Plaintiff or Defendant is a minor or person of unsound mind statement to that effect
v Facts constituting the cause of action and when it arose
vi Fact showing that the Court has jurisdiction
vii Relief which the Plaintiff claims
viii. Where Plaintiff has allowed a set off or relinquishes a portion of his claim, the amount so allowed for relinquishment; and
ix. Statement of the value of the subject matter of the suit for purpose of jurisdiction and Court fees
The plaint has to be filed with all relevant evidences and documents in support of the claim. It is also important to ensure that the plaint is filed within the statutory period of limitation as applicable, failing which an application seeking an extension of time shall be required to be filed along with the plaint.
a. First hearing/ Admission of case: After filing of the plaint, the case shall be listed for first hearing before the Court. The Plaintiff will typically be required to provide an overview of the case and satisfy the Court that a cause of action exists against the Defendant. If the Court is satisfied, it admits the case and issues summon/ notice u/s 27 read with Order V of the CPC to the Defendant to appear and answer the claim. It is important to note that if the Plaintiff fails to appear on the first date of hearing, then the Court may dismiss the suit in default
b. Service of Summons: Once the summons has been issued by the Court, it will be served by the Court on the address of the Defendant provided by the Plaintiff. It is incumbent upon the Plaintiff to ensure that the address provided to the Court is correct so that the summons is duly served upon the Defendant. The Plaintiff may also seek permission from the Court under Order V R 9A to effect service of the summons upon the Defendant on its own to further ensure that the Defendant is duly served
In case the address of the Defendant is not traceable, and the Court and the Plaintiff are unable to effect service of summons upon the Defendant after using all reasonable diligence, the Plaintiff may apply to the Court seeking permission to effect service by way of a publication as per Ord. V R 17 and R 20 of the CPC. The service of summon/notice upon the Defendant is presumed to effectuated by way of such publication and in case the Defendant still does not enters appearance in the case, the suit is proceeded ex-parte.
c. Appearance of Parties: On the day specified by the Court in the summons, the Defendant is required to enter its appearance and file its reply to the plaint and in circumstances where the reply is not filed, request the Court to grant it more time to file the reply. In case if the summons/ notices have been duly served upon the Defendant and the Defendant still fails to enter appearance, the Court may either grant another opportunity to the Defendant to enter appearance and re-issue summons or proceed ex-parte against the Defendant noting that it has failed to appear despite reasonable opportunity and thus, closing its right to defend
d. Filing of Reply by the Defendant: – After service of summons to the Defendant, as per Order VIII R 1 of the CPC, the Defendant is required to file its reply (termed as Written Statement) within 90 days from the date of service of the summons on him.
In the matter of ‘SreevivasBasudev V. Vineet Kumar Kothari’, the High Court of Gauhati held that every summon should be accompanied with a complete copy of the plaint. A mere service of the summons not accompanied by a copy of the plaint would not make the prescribed period of 90 days running.
However, the Defendant may seek extension of time for filing of its reply and such extension may be granted by the Court at its discretion
e. Production of Documents: – After filing of the written statement by the Defendant, the next stage of the suit is production of documents. At this stage both parties are required to file the documents in Court which are in their possession or power. If the parties rely on some documents which are not in their possession, they have to apply to the Court for issue of summons to the authority or the persons in whose possession those documents are
f. Examination of parties by the Court (Order X): At the first hearing of the suit after filing of the written statement by the Defendant, the Court shall ascertain from each party whether it admits or denies such allegations of fact as are made in the plaint or the written statement. Such admissions and denials shall be recorded. After such recording, the Court shall direct the parties to the suit to opt for one of the following modes of settlement outside the Court
iii. Judicial settlement including settlement through LokAdalat or
h. Discovery and Inspection (Order XI): The purpose of discovery and inspection of document and facts is to enable the parties to ascertain the facts to be proved. With the leave of the Court the Plaintiff or Defendant may deliver interrogatories in writing for examination of opposing parties which are required to be answered and which are related to the matter
- Admission and denial of documents (Order XII): Either party may by giving notice, call upon the other party to admit within seven days from the date of service of the notice, all documents saving just exceptions and each party shall submit a statement of admissions or
Denials of all documents disclosed and of which inspection has been completed, within fifteen days of the completion of inspection or any later date as fixed by the Court. The statement of admissions and denials shall set out explicitly, whether such party was admitting or denying
- correctness of contents of a document
ii. existence of a document
iii. execution of a document
iv.issuance or receipt of a document
v. custody of a document
An Affidavit in support of the statement of admissions and denials shall be filed confirming the correctness of the contents of the statement. In the event that the Court holds that any party has unduly refused to admit a document under any of the above criteria, costs (including exemplary costs) for deciding on admissibility of a document may be imposed by the Court on such party. The Court may pass orders with respect to admitted documents including for waiver of further proof thereon or rejection of any documents.
- Framing of Issues (Order XIV): The next stage is framing issues. Based on the questions of law arising and the admission-denial of the facts, the issues are framed by the Court in accordance with the provisions of the CPC Ord. XIV R 1 as under
I. Rule 1 sub rule (1) states, “Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other”
ii. Sub rule (2) states, “Material propositions are those propositions of law or fact which a Plaintiff must allege in order to show a right to sue or a Defendant must allege in order to constitute his defence”
iii. Sub rule (3) States “Each material proposition affirmed by one party denied by other shall form subject of distinct issues”
• Issues of fact
• Issues of law
The suit moves for trial after framing of issues
k. Summoning and Attendance of Witnesses (Order XVI): On the date appointed by the Court and not later than 15 days after the date on which issues are settled parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents
l. Hearing of suit and examination of Witnesses (Order XVIII): The Plaintiff is entitled to have the first right to begin unless the Defendant admits the facts alleged by the Plaintiff and contends that either in point of law or on some additional facts alleged by the Defendant, the Plaintiff is not entitled to any part of relief. In such case Defendant has the right to begin The Plaintiff has to state his case and submit the evidence filed and marked before the Court. If any evidence was not marked earlier then the same shall not be considered by the Court. The Plaintiff shall carry out examination in chief of its witnesses followed by cross-examination of the witnesses by the Defendant.
The same procedure is followed for the Defendant’s witnesses.
m. Arguments: After completion of evidence, final arguments are submitted by both the arties
n. Judgment (Order XX): Judgment is defined as the statement given by the judge on the grounds of which a decree is passed. The Court after the case has been heard shall pronounce judgment in open Court either within one month of completion of arguments or as soon thereafter as may be practicable, and when the judgment is to be pronounced the Judge shall fix a day in advance for that purpose.