Framing and Institution of Suits- CPC,1908

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    The term ‘suit’ is used to refer to a proceeding by a person(s) against another in a Court where the plaintiff seeks remedy. In short, in CPC, it is a civil proceeding instituted by the presentation of a plaint. Frame and institution of suits are few of the basic requirements to file a suit.

    FRAMING OF SUITS

    OBJECT

    The provision under Order 2 Rule 2 is based on the principle that a defendant should not be contested twice for the same cause[1].

    The principle in this provision is provided to counteract two evils:

    1. Splitting up of claims
    2. Splitting up of remedies.

    In Naba Kumar v. Radhashyam[2], the Privy council had stated ‘the rule that is in question aims to deal with the wrong of splitting causes of action. In a suit the whole of any claim should be mentioned which the plaintiff is entitled and if he omits to sue for any such relief, he is not allowed to claim it in a second suit.

    Thus, the object is to prevent filing of a number of suits relating to the same transaction.

    INCLUSION OF WHOLE CLAIM

    Whole of the claim of the plaintiff in respect of a cause of action should be written in every suit. Rule 1 says that every matter in the dispute, shall be finally disposed of,  ‘as far as practicable’  to prevent any further litigation.

    Here, the expression ‘as far as practicable’, means that the court will see in every case that whether for the plaintiff, it was practicable to frame his suit to include a cause of action which he had omitted or had intentionally relinquished.

    SPLITTING OF CLAIM

    In every suit should be included the whole of the claim to which the plaintiff is entitled.  If the plaintiff did not include or intentionally relinquished any portion of such claim then he won’t be afterwards permitted to file a suit in respect of such portion that was omitted or relinquished. In Kunjan Nair v. Narayanan Nair[3], it was also held that the true object of law would not stand fully served by holding that the provisions under Order 2 rule 2 be applied only if the previously filed suit is disposed of and does not apply in any situation when a subsequent suit is filed during the pendency of the previous suit. This rule will apply to both the situations[4].

    ORDER 2 AND RES JUDICATA

    Order 2 provides for prohibition of splitting of claims as:

    1. That every suit should have the whole of the claim included, the plaintiff is entitled but to bring that suit within the court’s jurisdiction, he may give up any portion of such claim.
    2. When the plaintiff omits or intentionally relinquishes any portion of his claim, then he cannot sue afterwards in respect of that.
    3. If a person is entitled to more than one relief in respect of the same cause of action and without the permission of the court he omits to sue for one of such reliefs, cannot afterwards sue for such it.

    Talking about res judicata, it differs from the above provision as:-

    1. Res judicata refers to a plaintiff’s duty to bring forward all the grounds of attack in support of his claim; while order 2 rule 2 only requires a plaintiff to claim all reliefs arising from the same cause of action.
    2. Res judicata refers to both the parties and prevents a suit as well as a defense, while provision of order 2 rule 2 refers only to a plaintiff and bars a suit[5].

    CONDITIONS

    Following three conditions must be satisfied for the applicability of Order 2:-

    1. Same cause of action: To bar the second suit by applying order 2 rule 2, it is to be proved that it is based on the same cause of action on which the previous suit was based, or else there could not be bar to the subsequent suit. The cause of action should be the same and not merely be similar. The plaintiff cannot split into parts to bring a separate suit in respect of those parts. The test, not a conclusive one, to check if the cause of action in the second suit is the same or not is whether the same evidence will assist and help both the previous and subsequent suits and if the subsequent suit is based on different causes of action, this rule will not apply[6].Even if they arise from the same transaction but cause of action is not the same, the rule does not apply. 
    2. One of several reliefs: For example, a plaintiff files a for breach of contract and does not claim one or more of the reliefs, then a subsequent suit is barred for such portion so omitted. Thus, this rule applies when the plaintiff is entitled to two or more reliefs in respect of the same cause of action and omits to sue all such reliefs. However, this rule does not apply when the right of relief in respect of which the subsequent suit is filed, did not subsist at the time of the first suit[7]; or the petitioner couldn’t have claimed that relief in the previous suit[8]. ‘A right that a litigant didn’t know or which did not exist at the time of the previous suit, cannot be regarded as a ‘portion of his claim’ within the meaning of this rule.
    3. Leave of court: This rule does not apply when the leave of the court is obtained. Thus, if omission is with the court’s permission, then a subsequent suit in respect of the same cause of action is not barred. Such leave can be obtained at any stage[9]. It is on the discretion of the court to grant leave.

    JOINDER OF CLAIMS

    The joinder of claims is provided in provisions of rules 4 and 5.

    Rule 4 says that in any suit for the repossession of an immovable property, a plaintiff is not entitled to join any claim without the leave of the court. But there are certain exceptions to this rule in which plaintiff can join a claim even without the leave of the court-

    1. Where claim is for mesne profits or arrears of rent in respect of the property;
    2. Where claim is for damages for breach of any contract under which the property or any part thereof is held; and
    3. Where the claim in which aid is sought, is found on the same cause of action.

    Rule 5 deals with suits by or against: executors, administrators and heirs. No claim by or against these persons, in their representative capacity, may be joined with claims by or against them personally in the same suit , except in following cases-

    1. When the personal claims is with reference to the estate he represents; or
    2. When he was entitled to or liable for those claims jointly with the deceased whom he represents.

    The objective behind such provisions is to prevent a representative from uniting the assets of his testator with his own properties.

    JOINDER OF CAUSES OF ACTION

    Rules 3 and 6 deal with the provisions of joinder of causes of action.

    Rule 3 allows joinder of some causes of action of one suit in certain situations but is subject to the provisions of this Code. It provides for following types of situations:-

    1.  One plaintiff, one defendant and several causes of action:– In such cases, the complainant may join in the same suit several causes of action. But if in the opinion of the court the joinder of causes of action may cause unsettling or delay in the trial, then the court may order separate trials.

    2. Joinder of plaintiffs and causes of action:- In case of more than two complainants and several causes of action , the complainants may join the causes of action in a single suit against the defendant if they are interested jointly. But they may be joined on the fulfillment of following conditions[10].

      1. The causes of action must be arisen from the same transaction; and
      2. Common questions of law or fact must be involved.

    If these conditions remain unfulfilled, and the plaintiffs are not jointly interested then the suit will be bad for misjoinder of plaintiffs and causes of action.

    3. Joinder of defendants and causes of action:– In case of one complainant and more than one defendants and several causes of action, the complainant may join in a single suit several causes of action, if the defendants are jointly interested in the causes of action, provided following conditions are fulfilled[11].

    1. The relief claimed should be based on the same act or transaction; and
    2. Common questions of law or fact must be involved.

    If defendants have been joined in cases where the causes of action are separate and the right of aid claimed is not based on the same act or transaction or any of the above conditions remain unfulfilled, then it will be a misjoinder of defendants and causes of action.

    4. Joinder of plaintiffs and defendants; and causes of action:- In case of two or more plaintiffs, defendants and several causes of action, the plaintiffs may unite such causes of action in a single suit when all the plaintiffs are jointly interested and also the defendants are interested in the same.

    In addition, the following must be noted with regards to Joinder of Parties:

    • If plaintiffs are not interested jointly- the suit will be bad for misjoinder of plaintiffs and causes of action;
    • If defendants are not interested jointly- the suit will be bad for multifariousness;
    • If  both plaintiffs and defendants are not jointly interested- the suit will be bad for double misjoinder.

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    INSTITUTION OF SUITS

    GENERAL

    The provisions for institution of suit is provided u/s 26 and order 4 of the code. Order 4 deals with the parties to a suit, addition, deletion and substitution of parties and the objection as to non-joinder and mis-joinder.

    A suit is instituted on the presentation of a ‘plaint’. The expression ‘plaint’ has not been defined in the Code but it means the exhibition of an action in writing[12].

    PRESENTATION OF PLAINT

    Section 26 and Order 4 Rule 1 provide that every suit must be instituted by the presentation of a plaint in duplicate or in any other manner that may be prescribed by the Code, by the plaintiff himself or his representatives.

    TIME AND PLACE OF PRESENTATION

    There is no rule as to a particular place or particular time of presentation but a plaint shall be presented before the court or to such officer as the court appoints[13]. Generally, it is presented on the working days and during the office hours but a judge may accept it at his residence or at any other place, any time. Though, the judge is not bound for such an acceptance, but if it is the last day of limitation and is not too inconvenient for him, he shall accept it. 

    After acceptance, the particulars are to be entered in a book called register of suits[14]. The particulars to be entered are: parties to the suit, cause of action, jurisdiction of court, valuation, etc.  After presentation, the plaint is scrutinized by the stamp reporter and the defects, if any, are removed by the plaintiff or his advocate and then the suit will be numbered.

    SUITS BY INDIGENT PERSON

    Order 33 deals with the suits by ‘paupers’. The object is to make it possible for indigent persons to institute any suit without payment of any court fees. Rule 1 gives the definition of an indigent person, as: 

    1. A person who is not possessed of  ‘sufficient means’ so that he can pay the fee. Here ‘sufficient means’ refers to the ability of that person to raise money by available lawful means for fee, or
    2. The person who is not entitled to property worth Rs 1000.

    Rule 2 provides for the following particulars that are required to be contained in an application to sue by an indigent person:-

    1. Particulars of plaint;
    2. Details of any movable or immovable property belonging to that person with the estimated value;
    3. Signature and verification as under order 6 rules 14 and 15.

    Such application shall be presented by the applicant unless exempted by the court and in case of two or more plaintiffs, any of them can present it [15].

    Following are the cases in which the plaint shall be rejected[16]:-

    1. If the application is not framed and presented as prescribed; or
    2. If the applicant is not an indigent person; or
    3. If that person applying has, within two months till such presentation, disposed of any of his property fraudulently or to get permission to sue an indigent person; or
    4. If there’s no cause of action; or
    5. It the applicant has entered into an agreement with reference to subject matter in which the interest is obtained by another person; or
    6. It the suit is barred by law; or
    7. If someone else has entered into an agreement with that person applying to back costs of the litigation.

    The rejection order is appealable[17].

    An inquiry to examine the applicant and his property may be ordered by the court or the court may adopt the inquiry made by the Chief Ministerial Officer[18].

    If permission is granted to sue as an indigent person, the suit shall proceed in the ordinary manner, only the difference being the applicant is not required to pay the court fees.

    If permission is rejected, the court shall grant time to the applicant to pay the fees[19] and such order shall be a bar to a subsequent similar application but may sue in an ordinary manner.

    If the indigent person succeeds in the suit, the court may recover it from the party and if he fails in the suit, the court shall order the plaintiff to pay required fees and costs[20].

    SUITS AGAINST A MINOR

    Order 32 provides for the procedure of suits to which minors are parties, object being to protect the interests of minors.

    Rule 3 provides that in a suit against a minor, the court shall appoint a guardian ad litem which shall continue in all the proceedings and also in an appeal or revision and execution of a decree till he is terminated as a guardian.

    Any decree against a minor without guardian or next friend is null and void. Also ,it is not illegal or be cancelled only on the basis that such next friend or guardian has an interest in subject matter adverse to that of the minor. But if the minor is prejudiced by such reason then it is a valid ground for setting aside such decree[21].

    Rule 4 provides that any person who has attained majority and is of sound mind can be appointed as a guardian or next friend provided his interest is not adverse to that of the minor. In absence of such a person, the court may appoint an officer of the court to be the guardian.

    Rules 5-7 provides for the powers and duties of a guardian or next friend as:-

    1. He cannot receive any amount or movable property on behalf of minor by way of compromise, without the leave of the court nor can enter into any compromise on his behalf in the suit;
    2. Application for leave of the court should be accompanied by an affidavit and in case the minor is represented by a pleader, then with a certificate of the pleader that such compromise is beneficial to the minor.

    Any settlement without the permission of the court is voidable against all parties. If the compromise is avoided by the minor then it ceases to be effective[22].

    Rules 8-11 provides for the retirement, removal or death of the guardian or next friend. Before getting a fit person for substituting him and giving security,  the next friend or guardian cannot retire. The court may remove a next friend or guardian, if it is satisfied that:-

    1. His interest is not favorable to the interest of the minor; or
    2. He is related with the opposite party such that it is unlikely that the interest of the minor will be saved and safeguarded by him; or
    3. He doesn’t discharge his duty; or
    4. Ceases to stay in India during pendency of suit; or
    5. Any other justifiable cause.

    On such retirement, removal or death, the proceedings in the suit shall be stayed until a next friend or guardian is appointed.

    Rules 12-14 provides for what happens when the minor attains majority. On attaining majority, the minor plaintiff may adopt any of the following:-

    1. May proceed with the suit and then shall apply for an order discharging the next friend or guardian and for leave to proceed in his own name.
    2. May renounce the suit and apply for its dismissal. 
    3. May apply for dismissal of the suit on the ground of unreasonableness.
    4. In case he is a co-plaintiff , he may reject the suit and may apply to have his name removed as co-plaintiff.

    SUITS AGAINST A DEAD PERSON

    There are two different views in this regard. First view is that a suit against a person who is dead when the suit was instituted is non est and has no legal effect; second view is that such suit is not void ab initio and can be continued against legal representatives of the deceased defendant. Thus, a suit filed against a dead person by the plaintiff without the knowledge about the death of the defendant and takes prompt action as soon as he comes to know about it, then he cannot be deprived of his remedy against the legal representatives of the deceased defendant.

     

    References

    [1] Deva Ram v. Ishwar Chand, AIR 1996 SC    378. 

    [2] AIR 1931 PC 229.

    [3] AIR 2004 SC 1761.

    [4] Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) ltd., (2013)1 SCC 625.

    [5] Inacio Martins v. Narayan Hari Naik, (1993)3 SCC 123.

    [6] Arjun Lal v. Mriganka Mohan, AIR 1977 SC 207.

    [7] State of M.P. v. State of Maharashtra, AIR 1977 SC 1466.

    [8] Sidramappa v. Raja Shetty, AIR 1970 SC 1059.

    [9] Hare Krishna v. Umesh Chandra, AIR 1921 Pat 193(FB).

    [10] The Code of Civil Procedure,1908,Or.1 R.1.

    [11] The Code of Civil Procedure,1908,Or.1 R.3.

    [12] Assan v. Pathumma, ILR(1899)22 Mad 494.

    [13] Kalyan Singh v. Baldev Singh, AIR 1961 HP 2.

    [14] The Code of Civil Procedure,1908,Or.4 R.2.

    [15] The Code of Civil Procedure,1908,Or.33 R.3.

    [16] The Code of Civil Procedure,1908,Or.33 R.5.

    [17] The Code of Civil Procedure,1908,Or.43 R.1(na).

    [18] The Code of Civil Procedure,1908,Or.33 R.1A.

    [19] The Code of Civil Procedure,1908,Or.33 R.15A.

    [20] The Code of Civil Procedure,1908,Or.33 Rr.11,11A.

    [21] Ram Chandra v. Man Singh, AIR 1968 SC 954.

    [22] Kaushalya Devi v. Baijnath Sayal, AIR 1961 SC 790.


    BY KU RICHA SINGH| LAW COLLEGE DEHRADUN, UTTRANCHAL UNIVERSITY

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