Procedure of Civil Suit 2

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.

Read Q1 to Q10 Here

Q11) What is Written Statement?

Ans. When the notice has been issued to the defendant, he is required to appear on the date specified in the notice. Before such date, the defendant is required to record his written statement i.e. his barrier against the claim raised by offended party. If time is specified by the Court then written statement must be filed within such time otherwise within 30 days from date of administration of notice issued by the Court.

Q12) What is contained in a written statement?

Ans. The written statement should specifically deny the allegations, which defendant thinks are false. Any allegation not specifically denied is deemed to be admitted. The written statement should also contain verification from the Defendant, stating that, the contents of written statement are true and correct.

Q13) What is replication by plaintiff?

Ans. Replication is a reply, filed by the plaintiff, against the "written statement" of Defendant and it should also specifically deny the allegations raised by the Defendant in written statement. Anything which is not denied is deemed to be accepted. Once Replication is filed, pleadings are stated to be complete.

Q14) How documentary proofs are filed in a civil suit?

Ans. Filing of Other Documents as documentary proofs – In civil suit many of a time documentary proofs are very necessary. Once, the pleadings are complete, then both the parties are given opportunity to produce and file documents, on which they rely, and to substantiate their claims. Filing of Documents should be admitted and taken on record. These documents are nothing but the documentary evidences under the Evidence Act.

Q15) How documents are admitted to the record of the civil suit by the Court?

Ans. Once the documents are filed by the parties then

·         Documents filed by one party may or may not be admitted by opposite party

·         In case documents are denied by opposite party, then they can be admitted by the witness presented by party whose documents are denied

·         Once the document has been admitted it shall form a part of the record of court, and all the details of suit such as name of parties, title of suit etc, shall be inscribed on the document

·         Documents, which are rejected i.e. not admitted, are returned to the respective parties.

·         It is necessary that document should be filed in "original", and a spare copy should be given to the opposite party.

Q16) How issues are framed by the Court?

Ans. Issues are framed by the Court as follows

·         Issues are framed, keeping in view the disputes in the suit, and the parties are not allowed to go outside the purview of "Issues".

·         Issues may be of Fact or Law.

·         At the time of passing final order, the court will deal with each issue separately, and will pass judgments on each issue.

Q17) How witness of person is taken in the court record?

Ans. If parties wish to produce some witness then

·         The list of witnesses must be filed along with all the details such as name, age, occupation, address of correspondence, etc. within period as the court may fix or within the 15 days from date on which issues were framed by the Court.

·         The parties may either call the witness by themselves, or can ask the court to send summons to them.

·         In case court send summons to witness then the party which asked for such witness has to deposit money ' with the Court for their expenses, is known as "Diet Money".

·         Any witness, who is not appeared before the court, if he is required by the court to do so, then the court may penalize in terms of fine.

·         Finally on the date, the witness will be examined by both the parties

·         Once, the Examination and Cross- Examination of witness is over, and also the admission and denial of documents, then the court will fix a date for final hearing.

Q18) How the final hearing will be conducted in a civil suit?

Ans. Final Hearing of a civil suit will be conducted by the court:

·         On final hearing day, the final argument will take place

·         The arguments should strictly be restricted to the issues framed

·         Before the final Arguments, the parties with the permission of Court can amend their pleadings

·         The court may refuse to listen for anything which is not contained in the pleadings

·         Finally, the court will pass a "final Order", either on the day of hearing itself, or some other day which will fixed by the court.

Q19) What is certified copy of order?

Ans. Certified copy of order- It is the final order of court, and having the seal and stamp of court. It is useful, in case of Appeal or in case of execution of the order.

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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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Civil Suit

 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) What is a civil case?

Ans. A civil case is a legal dispute between two or more parties.

Q2) When the process of a civil suit starts?

Ans. The process starts when someone files a lawsuit (plaintiff) against a single person or group of people (defendant).

Q3)  What is the purpose of a civil suit?

Ans. The purpose of a lawsuit is usually to win compensation for damages, injuries or money that is lost as the result of an action taken by the defendant.

Q4) Enlist the types of civil suits?

Ans. The types of civil suits are A) Tort claims (injuries), B) Breach of contract claims, C) Equitable claims, D) Class action claims, E) Complaints against the government, etc.

Q5) What is meant by the complaint against the government?

Ans. If civil rights of a person are violated by the actions, orders of the government then he can approach to the Court for compensation for such violation of his /her civil rights, such a complaint against the orders or actions of the government is called as the complaint against the government, e.g. reservation of a land having private ownership for public purpose under the Maharashtra Regional Town Planning Act, 1966 and non acquisition of such land within 10 years from publication of Development plan of the city.

Q6) What is meant by class action suit?

Ans. Class action suit is similar to tort case, except the “plaintiff” is actually a group or class of people. The “defendant” is often a corporation that is accused of negligence or intentional acts that caused many injuries, e.g. a company that exposes people to hazardous substances and claim for damages by such people is class action suit.

Q7) Explain equitable claims.

Ans. With equitable claims, the plaintiff asks the court to order a company or individual to refrain from doing something, which is known as an injunction. This type of case is not about a monetary reward for a past injury but is done to prevent a future harmful act. Equitable claims might ask the court to stop a developer from building a commercial plaza in a residential area, or ask a beef seller to shift his shop from residential area of pure vegetarians to the residential area of non-vegetarian people, etc.

Q8) Explain breach of contract claims

Ans. This type of civil claim involves a dispute over a contract. Contract disputes can involve multiple businesses or individuals. Any partnership or client relationship relies on a contract to ensure both parties do what has been promised. When one party breaks the agreement, for any reason, a lawsuit is often the result, e.g. non-execution of sale deed of an immovable property as per the conditions of agreement to sale.

Q9) Explain tort claims.

Ans. Tort claims might be filed against a business or an individual and involves accusations of alleged negligence. In this case, the plaintiff asks for punitive damages to compensate for medical bills, lost time at work or money spent replacing damaged property, e.g. fraud, defamation, emotional distress, invasion of privacy, etc.

 

Reference:

5 BASIC TYPES OF CIVIL CASES

 

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Reference to other Statutes

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how Reference to other Statutes used to interpret the statutes?

Reference to other Statutes

A statute must be read as a whole as words are to be understood in their context. Extension of this rule of context, permits reference to other statutes in pari materia, i.e. statutes dealing with the same subject matter or forming part of the same system, e.g. Section 304B of IPC must be read with Section 2 of the Dowry Prohibition Act as both of them deal with the dowry and related offences.

Viscount Simonds conceived it to be a right and duty to construe every word of a statute in its context and he used the word in its widest sense including other statutes in pari materia.

It is a well accepted legislative practice to incorporate by reference, if the legislature so chooses, the provisions of some other Act in so far as they are relevant for the purposes of and in furtherance of the scheme and subjects of the Act. Words in a later enactment cannot ordinarily be construed with reference to the meaning given to those or similar words in an earlier statute. But the later law is entitled to weight when it comes to the problem of construction.

Generally speaking, a subsequent Act of a legislature affords no useful guide to the meaning of another Act which comes into existence before the later one was ever framed. Under special circumstances the law does, however, admit of a subsequent Act to be resorted to for this purpose but the conditions, under which the later Act may be resorted to for the interpretation of the earlier Act are strict. Both must be laws on the same subject and the part of the earlier Act which is sought to be construed must be ambiguous and capable of different meanings.

Although a repealed statute has to be considered, as if it had never existed, this does not prevent the Court from looking at the repealed Act in pari materia on a question of construction.

The regulations themselves cannot alter or vary the meaning of the words of a statute, but they may be looked at as being an interpretation placed by the appropriate Government department on the words of the statute. Though the regulations cannot control construction of the Act, yet they may be looked at, to assist in the interpretation of the Act and may be referred to as working out in detail the provisions of the Act consistently with their terms.

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Use of foreign decisions

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how are the foreign decisions used to interpret a statute?

Use of foreign decisions:

Reference to English and American decisions may be made, because they have the same system of jurisprudence as ours, but do not prevail when the language of the Indian statute or enactment is clear. They are of assistance in elucidating general principles and construing Acts in pari material. But Indian statutes should be interpreted with reference to the facts of Indian life.

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Precedents and judicial pronouncements

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how are the precedents used to interpret a statute?

Precedents and judicial pronouncements:

A principle of law which has become settled by a series of decisions is generally binding on the courts and should be followed in similar cases. This is based on expediency and public policy.

“Per incuriam” are those decisions given in ignorance or forgetfulness of some statutory provisions or authority binding on the Court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reasons so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.

Judgments:

Ramkrishna Bus Transport and Ors v. State of Gujarat and Ors 1995 (1) G.L.H 520

While dealing with the provision of Sec. 207 of the Motor Vehicle Act, 1988, Hon’ble Mr. Justice C.K. Thakkar in the case of Ramkrishna Bus Transport and Ors v. State of Gujarat and Ors, 866 at Para. 43 held that, whether a particular provision is mandatory or directory depends upon intention of the Legislature and not only upon the language in which it is used. The meaning and intention of the Legislature must be treated as decisive and they are to be ascertained not only form the phraseology used but also by considering the nature, design and consequences which would flow from construing it one way or the other. It is also true that in certain circumstances, the expression ‘may’ can be construed as ‘shall’ or vice versa. At the same time, however, it cannot be ignored that ordinarily ‘may’ should read as ‘may’ which is permissive and not obligatory. For the purpose of giving effect to the clear intention of the legislature, ‘may’ can be read as ‘shall’ or ‘must’.

Mahadeolal Kanodia v. Administrator General of W.B. AIR 1960 SC 936

In Mahadeolal Kanodia v. Administrator General of W.B., the Supreme Court was concerned with the retrospectivity of law passed by the West Bengal Legislature concerning the rights of tenants and in para 8 of the judgment the Supreme Court held that: “8. The principles that have to be applied for interpretation of statutory provisions of this nature are well established. The first of these is that statutory provisions creating substantive rights or taking away substantive rights are ordinarily prospective; they are retrospective only if by express words or by necessary implication...”

Amireddi Raja Gopala Rao v. Amireddi Sitharamamma AIR 1965 SC 1970 : (1965) 3 SCR 122

In Amireddi Raja Gopala Rao v. Amireddi Sitharamamma, a Constitution bench was concerned with the issue as to whether the rights of maintenance of illegitimate sons of a Sudra as available under the Mitakshara School of Hindu law were affected by introduction of Sections 4, 21 and 22 of the Hindu Adoptions and Maintenance Act, 1956. The Court held that they were not, and observed in para 7 as follows: “7. ... a statute should be interpreted, if possible, so as to respect vested rights, and if the words are open to another construction, such a construction should never be adopted.”

ITO v. Induprasad Devshanker Bhatt AIR 1969 SC 778

In this case the Supreme Court, in context of a provision of the Income Tax Act, 1961, was concerned with the issue as to whether the Income Tax Officer could reopen the assessment under Sections 297(2)(d)(ii) and 148 of the Income Tax Act, 1961, although the right to reopen was barred by that time under the earlier Income Tax Act, 1922. The Supreme Court held that the same was impermissible and observed in para 5 as follows: “5. ... The reason is that such a construction of Section 297(2)(d)(ii) would be tantamount to giving of retrospective operation to that section which is not warranted either by the express language of the section or by necessary implication. The principle is based on the well-known rule of interpretation that unless the terms of the statute expressly so provide or unless there is necessary implication, retrospective operation should not be given to the statute so as to affect, alter or destroy any right already acquired or to revive any remedy already lost be efflux of time.”

Sakshi v. Union of Inaia & Others, (2004) 5 SCC 518

In this case the Supreme Court has observed that: “23. Stare decisis is a well-known doctrine in legal jurisprudence. The doctrine of stare decisis, meaning to stand by decided cases, rests upon the principle that law by which men are governed should be fixed, definite and known, and that, when the law is declared by a court of competent jurisdiction authorized to construe it, such declaration, in absence of palpable mistake or error, is itself evidence of the law until changed by competent authority. It requires that rules of law when clearly announced and established by a court of last resort should not be lightly disregarded and set aside but should be adhered to and followed. What is precludes is that where a principle of law has become established by a series of decisions, it is binding on the courts and should be followed in similar cases. It is a wholesome doctrine which gives certainty to law and guides the people to mould their affairs in future.

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Dictionaries and text books

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how are the dictionaries and text books used to interpret a statute?

Dictionaries and text books:

The meaning of particular words in an Indian statute is to be found not so much in a strict etymological propriety of language nor even in popular sense, as in the subject or occasion on which they used. But it is well known that words are generally used in their ordinary sense and therefore, though dictionaries are not to be taken as authoritative in regard to the meanings of the words used in statutes, they may be consulted.

The use of dictionaries is limited to circumstances where the judges and Counsels use different words. In such cases the court may make use of standard authors and well known authoritative dictionaries. e.g. Merriam Webster Dictionary

Text books may also be refereed to for assistance in finding out the true construction of a statute. e.g. Transfer of Property Act, 1882 Commentary by Mulla.

Judgment:

Voltas Ltd. v. Rolta India Ltd. (2014) 4 SCC 516

In Voltas Ltd. v. Rolta India Ltd., the Supreme Court has held that: “Dictionaries can hardly be taken as authoritative exponents of the meanings of the words used in legislative enactments for the plainest words may be controlled by a reference to the context. Similarly, Lexicons would only define an expression in terms of a decision given by a Court of Law, and unless this decision was given under the Act in which the expression is used "it involves" in the words of Ram Lal,J. in Frim Karam Narain Daulat Ram v. Colkart Bros., A.I.R. 1946 Lah (F.B) pp.116, 128" a dangerous method of interpretation."

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