Procedure of a Civil Suit 1

 

Vande Matram! Moot Court is a practical subject of Law. Many a times you have to perform Court Proceedings in your practical exams. For that many problems are given to you from your college and you have to represent your case either from side of plaintiff / applicant or from side of defendant / non-applicant. The moot court practical gives you experience of actual court proceedings.

Also you have to appear for a viva-voce for the subject. In viva-voce the examiner may ask you about the cases you have observed during your training with a law firm and some questions about the general things may be asked. Here are some short questions and answers which may be asked apart from problems of moot court you have solved or cases you have observed during your training with a law firm.

Q1) Is there any procedure laid down by statute to file a civil case or civil suit?

Ans. Yes, there is a procedure laid down by the Code of Civil Procedure 1908. If the process is not followed, then the Court Registrar has a right to dismiss the suit. But in general the objections are raised by the Registrar and the counsel for plaintiff has to remove these objections by doing the necessary as instructed by the Registrar.

Q2) What is the plaint?

Ans. Plaint is the written complaint or allegation.

Q3) Who is plaintiff and who is defendant?

Ans. One who files plaint is known as "Plaintiff" and against whom it is filed is known as "Defendant".

Q4) What are the contents of a plaint?

Ans. A plaint contains Name of the Court, Nature of Complaint, Names and Address of parties to the suit, the facts of the case, allegations made by plaintiff, prayer for relief and remedy, verification from plaintiff, stating that, contents of the plaint are true and correct.

Q5) What is Vakalatnama?

Ans. Vakalatnama is a written document, by which the person/party filing the case authorises the Advocate/Lawyer to represent on their behalf. However a person/party filing a case, May also represent their own case personally in any court and in this case he do not need Vakalatnama"

Q6) What are the terms of a Vakalatnama?

Ans. In general, a Vakalatnama may contain below terms:

·         The client will not hold the Advocate responsible for any decision

·         The client will bear all the costs and/expenses incurred during the proceedings

·         The advocate will have right to retain the documents, unless complete fees are paid

·         The client is free to disengage the Advocate at any stage of the Proceedings

·         The Advocate shall have all the right to take decisions on his own in the court of Law, during the hearing, to the best interest of client

Q7) How to file a plaint?

Ans. After preparation of plaint of a civil suit it is to be filed before the Chief Ministerial Officer (Sherestedar) at the filing counter, along with appropriate court fee and process fee(For different types of documents, a person has to pay different amount of Court fees.) At least two copies of the plaint must be filed, the number of copies may vary depending upon the number of defendant parties.

Q8) What is Court Fee?

Ans. Court fees is a nominal percentage of the total value of the claim or the value of the suit. The requisite amount of Court fees and stamp duty is different for every suit, and the same is mentioned in the “Court Fees Stamp Act”.

Q9) What may happen on first day of hearing of a suit?

Ans. After filing a plaint the court proceedings are conducted. On the first day of hearing, if the court thinks there are merits in the case, it will issue notice to the opposite party, to submit their arguments, and fix a date.

Q10) What is the responsibility of plaintiff or his counsel after issuance of notice to opposite party by the Court?

Ans. When the notice is issued to the opposite party, the plaintiff is needed to do the following:

·         File requisite amount of procedure - fee in the court.

·         File 2 copies of plaint for each defendant in the court.

·         Of, the 2 copies for each defendant, one shall be sent by Register/post/courier, and one by Ordinary post.

·         Such filing should be done within 7 days, from date of order/notice.

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Article 300. Suits and proceedings

Vande Matram!

300. Suits and proceedings

(1) The Governor of India may sue or be sued by the name of the Union and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted

(2) If at the commencement of this Constitution

(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and

(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings

Notes:

As per the 1st report of the Law Commission of India on 'Liability of State in tort', the liability of the Union and States to be sued is regulated by Article 300 of the Constitution of India.

References:

1) 1st report of the Law Commission of India on 'Liability of State in tort'

2) Constitution of India, 1949

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Affidavit: Uses and types.

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Here are notes on use of an affidavit and all of its types depending upon its use. Please read till the end. To support me please share and follow this blog.

Introduction with meaning and definition of Affidavit

Essential Features of An Affidavit

The components of an Affidavit

Use of Affidavit: -

An Affidavit can be required as a piece of documentation in any dispute before a court.

In Indian law, although an affidavit may be taken as proof of the facts stated therein, the courts have no jurisdiction to admit evidence by way of affidavit.

Affidavit is not treated as "evidence" within the meaning of Section 3 of the Evidence Act.

However, it was held by the Supreme Court that an affidavit can be used as evidence only if the court so orders for sufficient reasons, namely, the right of the opposite party to have the deponent produced for cross-examination.

Therefore, an affidavit cannot ordinarily be used as evidence in absence of a specific order of the court. Means there should be a specific order of the Court to use an Affidavit as Evidence.

Types of affidavit

There are various occasions or circumstances when a person needs an affidavit for a specific purpose and for that reason there are multiple as listed below:

Name Change Affidavits

1. General Name Change Affidavit

2. Change of Name After Marriage Affidavit

3. Change of Name of Minor Affidavit

4. One and the Same Person Affidavit

Change of Signature Affidavit

Address Proof Affidavit

Proof of Date or Proof of Birth Affidavit

Income Proof Affidavit

Joint Affidavit for Registration of Marriage

Affidavit for No-criminal record

Affidavit for Claim Settlement in Bank

Affidavit for Issue of Duplicate Certificates/Documents/Mark lists

First Child Affidavit

Affidavit for Educational Loan

Anti Ragging Affidavit

Affidavit for gap in education/employment

Passport Affidavits – also known as Annexure; Annexure are to be made strictly according to the formats issued by the Ministry of External Affairs

LPG Annexure

Affidavit of Heirship

Affidavit of Identity Theft

Affidavit of Small Estate

Affidavit of Support

Affidavit of Residence

Affidavit of Service

Divorce Affidavit

Financial Affidavit

The common times when an individual uses an affidavit are:

Property disputes

Divorce proceedings

Debt cases

Bail pleas

Family law issues

Estate planning

Legal issues

Name change

Identify theft cases

Death

Date of birth proof

Bail affidavit

To issue a legal notice

House declaration

Loan agreement

Rent agreement

In cases (sometimes) for service of process business

What Happens On Filing Of A False Affidavit?

Swearing of a false affidavit can make a person liable to be charged under the Indian Penal Code for the offence of Perjury. It is a grave matter which warrants strict action.

Such provisions ensure that persons who swear untruths in affidavits are aware of the consequences and to prevent them from committing such offences.

Notice to Surety of His Liability Under a Decree: Appendix H: No. 13

 Code of Civil Procedure

No. 13: NOTICE TO SURETY OF HIS LIABILITY UNDER A DECREE (Section 145)

(Title)

To

WHEREAS you .......................................... did on ............................................. become liable as surety for the performance of any decree which might be passed against the said ......................................................... defendant in the above suit; and whereas a decree was passed on the ...................... day of .......................... 20....... against the said defendant for the payment of ............................................................ and whereas application has been made for execution of the said decree against you:

Take notice that you are hereby required on or before the................... day of............................ 20...... to show cause why the said decree should not be executed against you, and if no sufficient cause shall be, within the time specified, shown to the satisfaction of the Court, an order for its execution will forthwith issued in the terms of the said application.

GIVEN under my hand and the seal of the Court, this........................... day of................ 20...

 

Judge.

Note: In original bare act of CPC the year of date is 19...... but as we are more than 20 years ahead of 20th century I just changed the year of the date in the given format. But complete date should be written as per the documentary evidences.

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It is general format for "Notice to Surety of His Liability Under a Decree." This is given by the Court under Section 145 of the CPC.

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Further Reading:

Section 145. Enforcement of liability of surety.

Decree

Liability under a decree

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The components of an Affidavit

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Here are notes regarding components of an affidavit. Please read and get your knowledge improved. To support me please follow and share this blog. Thank you!

For previous reading please visit:

Introduction with meaning and definition of Affidavit

Essential Features of An Affidavit

The components of an Affidavit: -

The document's component parts are typically as follows:

1) A commencement which identifies the "affiant or deponent of truth", generally stating that “everything in it is true, under penalty of perjury, fine, or imprisonment”;

2) an attestation clause, usually a jurat, at the end certifying that the affiant or deponent  made oath and the date;

3) signatures of the author and witness.

4) If an affidavit is notarized or authenticated, it will also include a caption with a venue (place) and title in reference to judicial proceedings.

In some cases, an introductory clause, called a preamble, is added attesting that the affiant or deponent personally appeared before the authenticating authority.

For further reading please visit:

Affidavit: Uses and types

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Essential Features of An Affidavit

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Here are notes regarding essential features of affidavit. Please read and get your knowledge improved. To support me please follow and share this blog. Thank you! 

Previous articles

Introduction with meaning and definition of Affidavit

1) An Affidavit should be in writing: Since an Affidavit is used as a record in court; it has to be in writing. This is to make the person who makes the affidavit accountable for the contents sworn in the affidavit. It also deters people from making false claims since they amount to punishable offences.

2) It must be a declaration made by an individual: An Affidavit can be created only by an individual, and not by any artificial persons like Companies and other associations or Groups of individuals.

3) It must relate to facts alone: An Affidavit should mention only the facts according to the best knowledge of the deponent. The only exception to this rule is Interlocutory Applications submitted in civil proceedings which may be based on the belief of the deponent. However, it is subject to the rule that the source of the information shall be specified and that the deponent shall be subject to cross verification by the other party.  It should not be based on mere inferences or assumptions.

4) It must be made in the first person: Affidavits cannot be created on behalf of other persons. The purpose is to prevent declaring of things beyond the reasonable knowledge of a person.  It is the duty of the deponent to state facts which are known to him/her. However it is subject to the exception where affidavits are sworn on behalf of minor children or insane individuals.

5) It must be sworn before an officer or magistrate who is authorised to administer oath.

6) An affidavit can be sworn only before a person having authority to attest it.

For example, a name change affidavit may be attested either by a Notary Public or by an Executive or Judicial magistrate for documents created in India; while an affidavit for lost or damaged passport can be attested only by a Judicial or Executive Magistrate and it is beyond the authority of a Notary Public.

For further reading please visit:

The components of an Affidavit

Affidavit: Uses and types

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Introduction with meaning and definition of Affidavit: -

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Here are notes regarding meaning and definition of affidavit. Please read and get your knowledge improved. To support me please follow and share this blog. Thank you!

Meaning and Definition: -

It is likely that every person recollects at least one instance of being asked to submit an affidavit. The reasons may be diverse, but the result is the same- Producing an affidavit gives increased credibility to claims made by a person.

An Affidavit is a written official statement of fact made by an individual under an oath or affirmation.

The individual making an Affidavit and signing it called as “Deponent” or “affiant”.

It is administered by a person who has the authority to regulate oaths. The affidavit can be signed in front of the notary public or Oaths Commissioner.

The person who prepares an affidavit declares that the content mentioned in the affidavit is true and accurate, and nothing has been concealed or misstated.

There is clearly a difference between a mere letter claiming that a person has lost his original certificates and an Affidavit, where a person swears before a magistrate or a judicial officer in written format, that he has lost his original certificates and is willing to surrender the original in case he retrieves it. The latter option holds the person liable to face any legal consequences in the event of his swearing of untruths or making or misrepresentations.

An affidavit is a type of verified statement or showing, or in other words, it contains a verification, meaning it is under oath or penalty of perjury, and this serves as evidence to its veracity and is required for court proceedings.

Affidavits may be written in the first or third person, depending on who drafted the document.

The term Affidavit refers to a sworn statement in written format made especially under an oath or affirmation before an authorised officer or Magistrate.

All affidavits are verified statements and printed (or written) on Stamp papers of different denominations.

The person who has authority to attest a certificate may be a Magistrate who may in turn be either a Judicial or an Executive Magistrate, a Notary Public or a Commissioner of Oaths depending upon the affidavit which needs to be attested. Indians living abroad can swear affidavits before Consular officers posted in Indian missions.

Who Can Create An Affidavit?

In order to create an affidavit, an individual should have

a) attained majority and

b) should be in a position to understand the nature of the contents sworn.

In other words, the person should not be insane or incapacitated to the extent of not knowing the meaning of the statements mentioned in the affidavit.

Please visit for further reading: - 

Essential Features of An Affidavit

The components of an Affidavit

Affidavit: Uses and types

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Myself Rohini and I am an engineer and pursuing my Law degree. Reading, Blogging, Drawing and crafting are my hobbies. In my channel I am sharing videos about drawing, crafting, art and law as I am studying. Please subscribe to my channel and share this video. Also on my blogs I am sharing general knowledge, law notes, study material, vocabulary, bhajans, lokgits, moral stories, shayary, poems, stories, and much more which everyone should check.

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Agreement of parties as to issues to be tried: Form 1 Appendix H

Code of Civil Procedure

Appendix H: Miscellaneous 

Form No. 1: AGREEMENT OF PARTIES AS TO ISSUES TO BE TRIED: (O. 14, r. 6.)

(Title)

WHEREAS we, the parties in the above suit, are agreed as to the question of fact [or of law] to be decided between us and the point at issue between us is whether a claim founded on a bond, dated the day .......... of ……………………… 20… and filed as Exhibit ……………………….. in the said suit, is or is not beyond the statute of limitation (or state the point at issue whatever it may be):

We therefore severally bind ourselves that, upon the finding of the Court in the negative [or affirmative] of such issue, ……………………. will pay to the said ………….. the sum of Rupees…………………(or such sum as the Court shall hold to be due thereon), and I, the said ………………, will accept the said sum of Rupees ……………….. (or such sum as the Court shall hold to be due) in full satisfaction of my claim on the bond aforesaid [or that upon such finding I, the said………………….., will do or abstain from doing, etc., etc.]

Plaintiff.

Defendant.

Witnesses—

1.

2.

Dated the …… day of ……………………20……

______

Code of Civil Procedure