PLAINT - PARTICULARS AND PROCEDURE UNDER CODE OF CIVIL PROCEDURE, 1908.

 

PLAINT

PARTICULARS AND PROCEDURE UNDER CODE OF CIVIL PROCEDURE, 1908.

Authors of the plaint:

De jure Author

Plaintiff/s who signed and verified as per order VI rules 14 & 15

De facto Author

The counsel who received instructions from the plaintiff and drafted and signed in it.

 

Why plaint is important?

·        unless a proceedings start with a plaint, an order in such a proceedings does not result in a decree.

·        The court gets jurisdiction on the basis of plaint avertments

·        No amount of evidence adduced by the plaintiff beyond the plaint avertments will be looked into.

 

Plaint

·        Not defined in CPC

·        A statement of claim

·        Document

·        Presentation of which the suit is instituted

·        Pleading of the plaintiff

·        Consist of the grounds upon which the assistance of the court sought by the plaintiff.

As per order VI rule 1 pleadings shall mean plaint or written statement.

Object of pleadings is to enable the court to decide true rights of parties in trial.

State of Maharastra Vs Hindustan construction co.ltd.,

(2010) 4 SCC 518.

The plaint is a private memorial tendered to a court in which the persons sets forth  his cause of action, the exhibition of an action in writing.

Should every paper presented in the suit to be signed by the party?

 

In a suit, when the proceedings were in progress a memo was pressed in to service by a counsel on record.

The otherside cannot insist that the party should also sign in it.

Mangaiyar karasi Vs suseela

AIR 2000 Mad 266.

Forms of pleadings.

In appendix A of CPC there are forty nine (pro forma)models are prescribed for plaints.

·        They are standard forms of pleadings and as nearly as may be used for all pleadings

·        The forms could be read along with order VI rule 3 CPC.

 

Order IV rule 1

INSTITUTION OF SUITS

·        SUITS TO BE COMMENCED BY PLAINT.

·        Every suit shall be instituted by presenting a plaint in duplicate to the court or such officer as it appoints in this behalf.

·        Every plaint shall comply with rules contained in order VI and VII, so far as they are applicable

·        The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub – rules (1) and (2)

 

Order VII  rule I

Particulars to be contained in plaint.

·        The name of the court in which the suit is brought,

·        The  name, description and place of residence of the plaintiff

·        The  name, description and place of residence of the defendant, so far as they can be asecertained

·        Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect

·        The facts constituting the cause of action and when it  arose;

·        The fact showing that the court has jurisdiction;

·        The relief which the plaintiff claims

·        Where the plaintiff has allowed a set – off or relinquished a portion of his claim, the amount so allowed or relinquished; and

·        A statement of the value of the subject – matter of the suit for the purpose of jurisdiction and of court fees, so far as the case admits.

 

HOW TO DRAFT A PLAINT

ORDER VI RULE 2

·        The plaint avertments shall, wherever necessary be divided into paragraphs, numbered consecutively.

·        Each allegation has to be  averred in a separate paragraph.

·        Dates, sums and numbers shall be expressed in the plaint both in figures and in words.

 

What are the contents of the plaint?

Material facts and not the evidence, order VI rule 2.

·        The  plaint shall contain a statement in concise form of the material facts.

·        Evidence need not be pleaded

·        In the plaint if the plaintiff relies on misrepresentation, fraud, breach of trust, willful default or undue influence the date and items shall be specifically stated.

  

When the plaint is not defective?

If the plaintiff is not aware of the particulars of the defendant an insufficient or improper description does not make the plaint defective

 

Supreme court on plaint avertments

The plaint avertments should set forth sufficient factual details to the extent that it reduces the ability to put forward a false or exaggerated claim or defence.

Shanmugam Vs Rajakula vamsathu madalaya paripalana sangam

(2012) 6 SCC 430

Plaint shall be read as a whole

·        The plea raised in the plaint is not an expression of art and science but an expression through words to place facts and law of one’s case for a relief.

·        To gather the true spirit behind the plaint, it should be read as a whole.

·        Syed dathagir Vs TR Gopala Krishna shetty

·        (1999) 6 SCC 337

 

Incomplete plaints.

The courts are not under obligation to entertain pleas if the pleadings in the plaint are incomplete.

Rajasthan state TPT corporation VS Bajrang lal (2014) SCC 693.

Integral parts of the plaint.

·        Title of the suit given on the top of the plaint is not a part of the plaint, as it is not by  the verification appended at the foot of the plaint.

Mahabooob Vs jwala pd AIR 1974 All 413

·        A plan or rough sketch to describe the suit property attached with the plaint is a part of the plaint.

Zarif Ahamed Vs Mohamemed farooq AIR 2015 SC 1236

A pedigree or genealogical tree is also a part of the plaint.

Therefore they can be formed as part of the decree

Mandatory requirements.

·        There should be two or more parties in a lis

·        In money suits the plaint shall state  the precise amount claimed (Order 7 rule 2)

·        In a suit for mesne profits the plaint shall state approximately the amount or value sued for.

·        In a representative suit, the plaint shall show not only that the plaintiff has an actual existing interest in the subject matter but he has taken steps necessary to enable him to institute a suit concerning it. (order 7 rule 4)

·        The plaint shall specifically show the grounds upon which exemption of limitation is claimed  (order 7 rule 7)

·        In a suit if a subject matter is immovable property, the plaint shall contain description of property to identify it (every survey number and boundaries) order 7 rule 3.

Provision of law

Mere non – mentioning or wrong mentioning of provision of law in plaint / application is no ground to reject the source.

Chollamane hucha gowder VS Thirumala (2004) I SCC 453.

Plaint and defendant

The court need not hear the defendant before registering a plaint.

P.K.Palanisamy Vs N.Arumugam (2009) 9SCC 173.

Defendants claim and interest in the subject matter to be shown in the plaint (order 7 Rule 5)

Order 7 Rule 7 is applicable to the written statement filed by the defendant.

Plaint legal perspectives

It is not a public document and cannot be admitted in evidence and exhibits without proving its contents.

Bai jayanthi nanda Vs Jaganath mahprabhu

(AIR) 2014 ORI 128

A petition filed under the contempt jurisdiction of the high court is not a plaint within the meaning of  Order 7 CPC

In re siddharath srivatsava

AIR 2002 Bom 494

 

After presentation of plaint the court

Can admit it under order VII rule 9

Or

Return it under order VII rule 10.

If the plaint is admitted the copies to be served to the defendant, along with summons.

If the plaint is returned the judge shall endorse in the date of its presentation and return, the name of the party presenting it, and reasons for returning it.

ONGC ltd., VS M/S Modern construction and co. AIR 2014 SC 83.

After presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competent to try the same.

In money suit interest cannot be claimed from the date of the suit was presented initially in the court lacking jurisdiction to try the suit

 

Amendment of the avertments in the plaint.

After the cognizance taken on by the court, the plaint avertments cannot be altered or changed or amended except by the permission of the court under order VI rule 17 CPC.