Procedure to Filing A Suit in India

This article was written by Asmita Rakhecha a student of university of Calcutta. 

Introduction

Filing a suit in India is often considered to be a Herculean task for the common people. A large number of people often shy away from fighting for justice because filing a suit is associated with complicated legal proceedings. However the Civil Procedure Code has various clearly outlined guidelines which are to be followed in order to file a valid suit in the court. Some basic steps and formalities have to be adhered to, to ensure the suit filed, stands in the court of law. Only when these guidelines, as laid by the Civil Procedure Code are followed can a suit be taken up and heard by a Judge or Magistrate.

Determining Jurisdiction of Court

While filing a suit, the first question that must be dealt with is, where the suit must be filed. Determining the Jurisdiction of the court where the suit is to be filed is of utmost importance to ensure the validity of the suit. Section 9 of the Civil Procedure Code states that, “The Courts shall (subject to the provisions herein contained) have jurisdiction to try all Suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.” Thus before a suit if filed it is of utmost importance to determine jurisdiction of the court. Jurisdiction of court may be determined on the basis of two factors:

1. Pecuniary Jurisdiction
2. Territorial Jurisdiction

Pecuniary Jurisdiction

Section 6 of the Civil Procedure Code states that, “Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.”

The Pecuniary jurisdiction of Civil Courts differs from state to state and is decided by the Rules laid down by the High Courts of the respective states. In some states all civil suits are tried by district courts irrespective of the valuation of the suit and only appeal is addressed by the High Court.

At present the pecuniary break up of Jurisdiction in Delhi is as follows:

Suits amounting to a valuation of Rs. 1- 20,00,000 are to dealt with the District Courts

Suits amounting to a valuation above Rs. 20,00,000 are to be dealt with the High Court

Territorial Jurisdiction

Territorial Jurisdiction of civil courts may divided into two classes. Each state has certain District courts under it. And each state has its own High Court. So a dispute arising in Karnataka is conventionally to be tried in the High Court of Karnataka and not the High Court of West Bengal. Similarly, a dispute which arises in a particular district of Karnataka is to be tried by the court which falls within the jurisdiction of that district and not any district of choice.

Besides this the territorial jurisdiction of a court is decided on the basis of the subject matter of the suit:

1. Suits relating to immovable property
2. Suits related to damage done to person or movable property.
3. Other suits

Suits Related to Immovable Property

Section 16 of the Civil Procedure Code lays down the guidelines to be followed regarding jurisdiction of disputes related to Immovable property as follows:

“Subject to the pecuniary and other limitations prescribed by any law, suits-

(a) for the recovery of immovable property with or without rent or profits.

(b) for the partition of immovable property.

( c) for the foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property.

(d) for the determination of any other right to or interest in immovable property.

(e) for compensation for wrong to immovable property.

(f) for the recovery of immovable property actually under distrain or attachment,

shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.”

Hence a suit regarding disputes over immovable property is to be filed in a court having jurisdiction over the place of origin of dispute.

Suits Related to Damage done to Person or Movable Property

Section 19 of the Code of Civil Procedure provided that,

“Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the said courts.”

Thus, Section 19 aims to establish that in case of a dispute between two persons, the suit is to be filed in court where the defendant resides or the place where the dispute arises.

Other Suits

Section 20 of the Civil Procedure Code lays down the jurisdiction of courts in case of other disputes as follows:

“Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction—

(a) The defendant, or each of the defendants where there are more than one, at the time of the commencement of the Suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.”

Thus in case of other disputes, the suit is to be filed in a court where the defendant or defendants reside or carry on their business or personally work for gains. The suit may also be filed in a court where the cause of action of dispute arose, either wholly or in part.

Vakalatnama

Order III Rule 4 sub rule 1 of the Civil Procedure Code states, “No pleader Shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such  person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.” This duly signed document is known as the Vakalatnama. The Vakalatnama is given by the pleading party to the advocate chosen to represent the party. Thus the Vakalatnama authorizes the advocate to assume the dispute and represent the grievances of a party on behalf of them by virtue of having an in depth knowledge in the field of law. Thus a Vakalatnama is also one of the essentials of filing a suit in a court.

Hearing

Once the jurisdiction is determined, the party has to remit a court fee which is determined on the basis of the nature of the suit and the amount claimed. After this, a date of hearing is given to the party when the court decides on the course of further proceedings of the case.

Though filing a suit in India does involve a number of steps and formalities, it is a well laid out organised procedure. However due to lack of knowledge people often find themselves in a sticky position. At the same time, it cannot be denied that the formalities involved with filing a suit in India tends to slow down the entire process which has led to grave problems in India. People prefer to stay out of the tedious process of being tried by law and opt for outside the court settlements today.