In this blog, I throw light on the civil case procedure adhere by Indian
courtrooms. Before I start this journey, firstly I would like to highlight some
basics about civil laws and civil cases. As we all know that if there is any
violation of our civil rights we go to court for enforcement of these rights. So
the main question is what are the steps or route we follow in court of justice
for recovery of damages against breach of civil rights.
Here I make an effort to
explain in brief about the civil cases trial. Civil proceedings are
time-consuming comparison to criminal cases. The court takes help of substantive
as well as procedure laws to deliver good judgments, Indian Contract Act, The
Transfer of Property Act, the Industrial Disputes Act, I.P.C are instance of
substantive law, while Indian Evidence Act, The Code of Civil Procedure, The
Code of Criminal Procedure are instances of procedural law. C.P.C. neither
creates nor takes away any right.
It is intended to regulate the procedure to be
followed by civil courts. A procedural law is always subservient to the
substantive law. Nothing can be given by a procedural law what is not sought to
be given by a substantive law and nothing can be taken away by the procedural
law what is given by the substantive law.
A civil case involves a legal dispute between two or more parties on particular
facts and issues. The two parties are plaintiff and defendant. Plaintiff may
asks the court to award damages (pecuniary compensate the plaintiff for any
harm suffered). Defendant in written statement disown the facts given by
plaintiff in plaint. Defendant make rebuttal of facts produce by plaintiff to
make his own defense.
Without any further ado, let's go start now!!
Suppose there is one dispute between person A and B in case B v/s A
. A makes a
contract with B to sell his house in 2 Cr. rupees, both A and B sign a contract
and B fulfill the condition as per the contract of sale deed. But A refuses to
give a possession of house to B. Then B case a civil suit against defendant in
court of original jurisdiction.
Now by the help of this aforesaid example, we enjoy civil suit: from take-off
B institute a civil suit against A for specific performance to deliver the
possession of house, then B will have to follow the route given below to enforce
his civil rights:
Step By Step Civil Procedure
Presentation Of Plaint By PlaintiffA civil proceeding is set in motion by presenting or filing a plaint. This is
the first step from where the civil suit takes its flight (or take-off).Plaint
is a statement of claim, a document, or memorial by the presentation of which a
suit is instituted. It is filed by the plaintiff and states in writing the
claims of the plaintiff against the defendant in the manner prescribe under
order 7 of the C.P.C, 1908. Suit to be commenced by plaint according to order 4
r/w section 26 of C.P.C, 1908
Service Of Summons To DefendantAfter plaint instituted in court the presiding judge either accept or reject the
plaint if there is any default. After that in the case of acceptance of the
plaint, it is the duty of the court to call the defendant to appear before the
court by serving summon as per order 5 of C.P.C, 1908. Summons means an
invitation to parties of the case by court, summons are also served when either
parties wants to produce a witness in the court in accordance with the procedure
laid out in section 31 of C.P.C,1908.
Non-Appearance Of The Parties & Ex-Parte Order
- When only plaintiff is absent
According to order 9 rule 8, of C.P.C, a suit can be dismissed by a court in a
case where the plaintiff fails to appear before the court even after the service
of summons to the defendant.
- When only defendant is absent
When the defendant chooses to remain absent despite proper service of summons,
the court is entitled to continue with the proceeding of the suit by hearing
only the plaintiff.
- when both parties are absent
The basic rule 3 of order 9 is that the suit should be dismissed when both
parties are absent. However, the use of word May in the provision makes the
power a discretionary at the hand of the judge. Therefore, if a judge has reason
to believe that the case should not be Dismiss, it can adjourn to a later date.
Written StatementA written statement is a document containing the pleadings of the defendant as
per order 8 C.P.C, 1908 in response to the plaint filed against him/her. It
highlights the defendant's side of facts of the case and defends the claims made
in the plaint against his/her. It is mandatory to file a written statement
within 90 days, but it may extend if court satisfy to do so.
Examination Of PartiesAfter the written statement file in court, the examination of parties is
conducted at the first hearing of a civil suit and is a critical stage in a
civil proceedings as it is when the court determines and takes on record the
plaintiff's and defendant's admission or denial of claim and pleading.
Framing Of The IssuesNext step after examination of parties is framing of issues
Issues mean a point in question, an important subject of debate or litigation.
Issues are of three kinds: (a) issues of facts, (b) issues of law (c) mixed
issues of fact and law. Issues arise when a material proposition of fact or law
is affirmed by one party and denied by the other.
The court may ask both the parties to produce a draft issues based on which
final issues are framed by the court in accordance with order 14 of C.P.C, 1908.
Production Of Documents & Attendance Of WitnessesAfter the final issues have been framed, the court will require the concerned
parties or their pleader to submit a list of documents that will be relied on to
support their claims and defenses under order 13 C.P.C, 1908. The court will
also require the parties to submit a list of witnesses whom they propose to
call on to support their plaint or written statement. The court may at any
stage of the suit reject any document which it considers irrelevant or
otherwise inadmissible, recording the grounds of such rejection
Hearing Of Suit, Examination & Cross- Examination Of The Parties & Their WitnessesAccording to natural justice, hearing of both parties to the suit is necessary
before pronouncing a judgment. The plaintiff to present his / her case before
the court prior to the defendant, this is followed by cross-examination of the
plaintiff and his witnesses by the defendant's advocate. The same is then
repeated with the defendant and his witnesses. Follow the manner prescribe under
order 18 C.P.C, 1908.
ArgumentsThe parties engage in arguments by applying the relevant laws to the facts of
the case and interpreting them in a manner that is likely to approval their
case. This is the final opportunity to present their cases before the court
makes it final judgment.
Judgment / DecreeAfter the concerned court has heard the matter the court will pass judgment/
decree. Judgment means the statement given by the judge of the grounds of a
decree or order. The provision dealing with judgment and decree is in section 33
and is to be read with order 20 of C.P.C, 1908. The court, after the case heard,
shall pronounce judgment in an open court, either at once, or as soon thereafter
as may be practicable and when the judgment is to be pronounced on some future
day, the court shall fix a day for that purpose, of which due notice shall be
given to the parties or their pleaders.
Appeal, Review & RevisionIn the occasion that either party is not satisfied with the judgment / decree
pronounced by the court, they may avail the option to either apply
for review as per section 114 r/w order 47 of C.P.C, 1908 within a period of
30 days from the date of pronouncement of judgment/ decree. Review means to
reconsider, to look again or to re-examine. Alternatively, the aggrieved party
may apply for revision as per section 115 to the higher court. Revision means the action of revising, especially critical or careful examination or perusal
with a view to correcting or improving. The aggrieved party can also opt to Appeal as per section 96 to 110 along with order 41, 42, 43, 44, 45, to the
higher court within 60 or 90 days from the pronouncement of the judgment/
decree. Appeal means the judicial examination of the decision by a higher
court of the decision of an inferior court.
Execution Of The DecreeExecution of the decree is the last step from where the civil suit takes its
landing. This is the stage wherein a decree-holder (means any person in whose
favors a decree has been passed or an order capable of execution has been made)
reaps the fruits of the judgment as it is when the decree-holder compels the
judgment-debtor (means any person against whom a decree has been passed or order
capable of execution has been made) to execute the mandate of the decree
judgment or order. The execution is only considered complete when judgment
creditor or decree-holder gets the money or other things awarded to him as a
result of the judgment, decree or order.
The code lays down the following mode of execution of decrees:
- Delivery of property (movable or immovable);
- Attachment and sale of property;
- Arrest and detention;
- Appointment of receiver;
- Payment of money;
- Specific performance of the contract;
- Restitution of conjugal rights;
- Execution of documents;
- Endorsement of negotiable instrument;
- Attachment of rent, mesne profit;
- Decree against corporation & firm.
At the winding-up of this blog, I would like to conclude here: procedural laws
prescribe the method for enforcing rights and duties. The code of civil
procedure, 1908 gives the law relating to the procedure of the courts of civil
judicature. Through this blog I tried to explain complexity of civil procedure
in simplest way.
It is impossible to me to consolidate all civil provision or
matter related to civil suit in this particular journal, but I tried here to
highlight main issues, which helps to understand what general route we follow in
civil cases. I hope this blog very utilitarian for law students, CLAT aspirant,
lawyers, and also for general public because ignorance of law is no excuse.
Thank you friends
Written by: Akhil Shrivastava
, Law Student, 4th Year - Dr. Harisingh Gour
Vishwavidyalaya (Central University)