ATUL DEPAK

'Faman afa wa a-salah fa-ajruhu ala-Allahi’ (But whoever forgives & makes reconciliation-his/her reward is due from Allah)

CPC 1908 Notes

REVISION

Framing of Issues In A Civil Suit

Issues in a civil suit to be framed on the basis of the Pleadings of the Parties which includes-

Plaint, written statement, replication, and documents attached with all of them. Plaint and WS are generally sufficient for framing of issues.

Similarly in criminal case, charge is framed on the basis of charge sheet, statement of witnesses, accused, sight plan prepared by the investigating agency, MLR, PMR, FSL report and all other documents along with the final statement.

Meaning of Issue or Fact in Issue-

Any fact alleged by the plaintiff in the plaint which has been denied by the defendant. Apply this and issue will automatically emerge. When any fact becomes fact in issue, parties want that court should decide that issue.

If all facts alleged by plaintiff has been admitted by the defendant in the WS, that fact need not be proved.

Court has to determine which facts have been admitted by the defendant and which has been denied.

Sometimes defendant raises various preliminary objections. For example that the suit is time barred under law of limitation and that it does not lie in the civil court. He will write an application that this issue should be decided first. In such situation court will first decide the legal issues. And if these legal issues are decided in favour of defendant, then there is no need to proceed with the case.

But SC in various decision has said that court should decide all issues-legal as well as factual to curb unnecessary litigation.

Example-plaintiff has filed a case that he is the owner in possession of the suit land and D has no title in the suit land. D in WS denied the claim of plaintiff and claimed that he is in the possession of the suit land as owner for the last 20 years and TF, his suit should be dismissed with cost.

Issue-Whether plaintiff is the owner in possession of the suit land as alleged? OPP (All issues to begin with-‘Whether’)

There is no limit number of preliminary objections that can be raised by the defendant. He can raise as many as he wants.

Preliminary objections raised in the WS shall being with ‘THAT..’  All preliminary objections should be raised first and then the para-wise reply to plaintiffs allegation.

For example-

  1. That plaintiff has no cause of action and locus standi to file the suit. OPD
  1. That the suit is hit by the principle of res-judicata. OPD
  1. That the suit is not within time as per the limitation act. OPD
  1. That plaintiff is estopped by his act and conduct to file the suit. OPD
  2. Then he will give para-wise reply to the allegations of plaintiff. OPD
    1. Para-wise reply is as under-

Court shall ask the defendant to prove all the preliminary objections raised by him. He is required to lead evidence to prove his claim.

But if preliminary issues are framed by the court then there will be one change-‘That’ will become ‘Whether’ Rest of the thing will remain same.

After appreciating the facts and circumstances of a case and its issues the court shall write ‘relief’ in the last paragraph of the judgement.

If you see the judgement, the last paragraph always mentions relief.

  1. If the suit is dismissed then-
    1. ‘As a result of my discussion on aforesaid issues I am of the view that the suit filed by the plaintiff is without merit and is dismissed with/without cost. Decree sheet should  be prepared accordingly. File after needful should be consigned to the record room.’

If the issues are prepared in a petition (under HMA, MV Act etc) the nominclature of parties hall change. Plaintiff and defendant shall become petitioner and respondent. In execution proceedings the nomenclature is DH and JD.

Example-P has filed a suit for possession of suit land alleging that D has forcefully encroached upon a portion of the suit land when he was out of the village for 2 months. And therefore decree shall be passed against the D and he be given the possession of the suit land. D in WS replied that he has not forcefully dispossessed the plaintiff but he is in possession of the suit land for the last 10 years since the death of his father. He has also raised the preliminary objection that the suit is time barred and plaintiff has pressed the material facts from the honorable court. Frame the issues

  1. First the court shall frame the issues on disputed facts and then the preliminary objections.
    1. Whether the plaintiff is entitled to get possession of the suit land as alleged? OPP
  2. Now the issues on preliminary objections raised by the defendant-
    1. Whether the suit is time barred as alleged? OPD
    2. Whether plaintiff has pressed material facts as alleged? OPD

Example-Petitioner has filed a petitioned under S.13 HMA for dissolution of marriage on ground of cruelty physical as well as mental and discretion. He alleged that his wife treated him with cruelty and also deserted him without any reason and started to live with her parents. TF marriage should be dissolved. Respondent in WS stated that she neither treated P with cruelty nor deserted him at any time and in fact P shunted her out of the matrimonial home after treating her with cruelty and also deserting her. TF marriage should not be dissolved?

Issues

  1. Whether the petitioner is entitled to the dissolution of marriage on account of cruelty and desertion as alleged? OPP

Framing of Issues when defendant fails to appear in court?

  1. In such a case, court shall not frame any issue.
  1. Because the fact which has been alleged by the plaintiff has neither been admitted not denied by the opposite party.
  1. D has choose not to contest the allegations.
  2. If he appears after notice and files WS and on the basis of pleading of parties, court has framed the issues but counsel of D fails to appear and court proceeds ex-parte at the evidence stage. What will be the affect of issues framed?
    1. Court in such case will record the statement of witnesses.
    2. But it shall give judgement as if no issues were framed by it because issues framed has not been contested by the defendant.

Whenever any MV case is filed under S.166 of MV act, then they are bound to frame issue in the same manner. The procedure of framing issues is common to all types of cases.

Example-Mrs Kalavati and her son Rakesh have filed a claim under MV Act claiming 50 lakh as compensation for an accident caused by a truck HR 14 S 4876 driven by R1, owned by R2 and insured by R3. Due to negligent driving of R1, his car met accident and he died. R1 and R2 have filed joint WS1 but R3 filed separate WS2. WS1 denies the accident caused by negligent driving go R1 and alleged that deceased himself was driving negligently under influence of alcohol. R3 claimed that car had no valid and effective driving license because it had expired in March, and thus it (insurance company) is not liable to pay.

  1. Whether the accident occurred on that date due to the rash and negligent driving of truck no HR 14 S 4876 by its driver R1? [OPP]
  1. If the first issue is proved, then is the petitioner entitled to get compensation, and if yes, to what extent? [OPP]
  1. Whether R1 had a valid and effective driving license to drive the offending car at the time of the accident? [OP(R3)]
  1. After that ‘The Relief’.
  2. If fully amount of 50 lac is not allowed then Judge will write ‘recovery partially allowed’.

Example-Petitioner has filed a suit for rendition of account on account of dissolution of partnership and is claiming of the share. Defendants in their joint WS stated that partnership firm is still in existence and is carrying on business and was never dissolved and TF petitioner is not entitled to rendition of account. They have also raised a PO that P was a sleeping partner and has no cause of action to file the suit and suit should be dismissed.

  1. Whether P is entitled to rendition of account qua the dissolution of partnership as alleged
  1. If issue 1 is proved, whether P is entitled to share?
  1. Whether P is a sleeping partner?
  1. Whether plaintiff has no cause of action to file the suit?
  1. Whether suit is not maintainable in the present form as alleged? OPD
  2. Relief-

Example-P has filed a suit for permanent injunction for restraining D from interfering in his possession of suit land which is in his possession since last 40 years. D denies interference in peaceful possession of P for 40 years and therefore P is is not entitled to seek the plea of injection

  1. Whether petitioner is entitled to the relief of permanent injunction qua the suit land as alleged?
  2. Relief.

JOURNEY OF A CIVIL SUIT

Various stages in the journey of a civil suit.

Journey of a civil suit begins by the presentation of plaint.

A Lawyer should know all these stages. He should know at what stage, the proceedings will halt and something is required to be done by the parties or court in order to proceed to next stage.

  1. Stage 1-Presentation of Plaint in a proper court
    1. In the court of Civil Judge, Senior Division (CJ SD) Fresh suits are instituted here.
    1. Necessary particulars shall be entered.
    1. Either it shall be retained by CH SD himself or assigned to Additional CJ SD or to any other Civil Judge Junior division (CJ JD) in the district.
    1. Plaint is a document which contains the material fact on the basis of which plaintiff wants the court to give relief to him.
    1. There are various particulars which are required to be mentioned in a civil suit.
    1. Order 7 deals with the plaint and contains various rules which need to be kept in mind during drafting of Plaint.
    1. Whenever plaint is filed in a court, court shall verify whether it has been filed in accordance with the rules.
    1. O.7 R.1 deals with content of plaint.
    1. Every Plaint begins with the name of the court in which plaint is going to be instituted for the redressal of the grievance.
    1. Name of the court is written in a very proper refined manner.
      1. In the court of Ms Anjali Sharma CJSD Dwarka New Delhi’
    1. Then name of parties-
      1. ‘Rakesh Kumar s/o Mahesh Kumar aged 37 years resident of House No. 201 Sector 10 Dwarka, New Delhi. (Plaintiff)
        1. Verses
      2. Mahaveer Kumar s/o Raghubir Kumar aged 48 years resident of House No. 99 Sector 10 Dwarka, New Delhi.’ (Defendant)
    1. Then nature of suit-
      1. Suit for permanent injunction/recovery of 5 lac/suit for rendition of account’ (Example of short title)
      2. Long title-‘Suit for permanent injunction against the defendant restraining him from interfering in the peaceful possession of the plaintiff of the suit land khasra no. 232 situated in so and so village etc.’
    1. Then plaintiff shall begin by stating the material facts. Each fact shall be stated in separate paragraph, Material facts can run in 20 paragraphs.
      1. Respectfully submits as under-
        1. Para1
        1. Para2
        2. Para3
    1. Date and time of the cause of Action-
      1. Cause of Action arose about 7 days ago when defendant refused to stop interfering in the suit land.
    1. State the territorial jurisdiction of court-
      1. As to how this civil court has territorial jurisdiction to entertain this suit.
      2. That suit land is situated in village A, district B which is well within the jurisdiction of this court and hence this civil court is having jurisdiction to try the suit.
    1. Then the valuation aspect-
      1. That the suit has been properly valued under the court fee act for rupees so and so for the purpose of pecuniary jurisdiction.
    1. That no similar suit under the same cause of action has been decided by any court in India.
    1. That no similar suit between same parties under the same cause of action is pending for adjudication in any court in India.
    1. Prayer clause-
      1. What relief he wants from the court.
    1. Verification of Plaint in accordance with Order –
      1. Verified that contents Para 1 to 8 are true and correct to the best of my knowledge and belief and nothing material has been concealed therein.’
    2. Now name and signature of the plaintiff-
  1. Stage 2-Summoning the defendant
    1. Once plaint is properly presented, court shall direct the summoning of defendant on payment of process fee.
    1. Plaintiff is legally duty bound to deposit the process fee for serving of summons to defendant.
    1. This fee is in the form of court fee stamps. This is very nominal amount.
    2. Various modes for the summoning of defendant. Earlier D used to be served only through registered post. Now other modes as well-
      1. Email, Fax, WhatsApp etc
  1. Stage 3-Written Statement
    1. After the summons are served, defendant shall appear in court for filing of written statement (WS) and reply. Why reply?
    1. Because plaintiff might have filed a suit and also an application whether it be for injunction, attachment of property of defendant before judgement, etc.
    1. So he is bound to give specific reply to each and every paragraph of the plaint.
    1. Reply should be clear, definite and certain and not vague and evasive.
      1. ‘That para 1 is wrong and is denied’
    1. He may fully or partially admit or deny a paragraph of plaint.
    1. In case, a paragraph is not denied, it is assumed that he has admitted that fact.
    1. He should also give reply to the prayer clause of the plaint.
      1. In view if the aforesaid para wise reply, suit of the plaintiff be dismissed’
    1. Defendant can raise as many objections he want in the written statement.
    1. It is a common practice throughout the country that some common preliminary objections are always raised notwithstanding
      1. That plaintiff has no cause of action to file the suit.
      1. That the suit is time barred.
      2. That plaintiff is estopped by his conduct to file the suit.
    2. Reply to preliminary objections should be at the top.
      1. Para-wise reply is as under-
        1. F
        1. F
        2. F
      1. Whenever an application under Order 39 r/w S.157 is filed , it shall not contain all facts of the plaint but brief. Three requirements-
        1. That plaintiff has filed the suit for declaration of relief permanent injunction against the defendant which is likely to be decreed on the grounds as mentioned in plaint and the same are not reproduced for the sake of brevity.
        2. The content of the plaint be read as part of this application.
      2. Where the defendant has raised plea of counter claim or set-off in the WS, plaintiff is legally entitled to file the replication. But if D has not raised set-off and counter claim then he has no legal right to file the replication. Still if he wants to clarify something he can file the replication but with the permission of court.
  1. Stage 4-Replication
    1. It means reply of WS.
    1. Specific reply of each and every paragraph of WS and also the preliminary objections (PO)
    2. Sequence of replay will be the same like the WS.
      1. Reply to PO
        1. That PO 1 is wrong and hence denied as P has very locus standi to file the suit etc.
      2. Reply to WS
  1. Stage 5-Framing of the issues-
    1. Already explained above.
    1. Issues are framed on the basis of pleading of parties. (10 Marks question)
    1. Pleadings are over the moment the case comes to 3rd stage.
    1. It includes Plaint, WS, Documents attached with both.
    1. Issues are of two kinds-
      1. Issue of Fact
        1. Are framed on the basis of assertions made by P in the plaint and reply given by D in WS
        1. Issues of facts are proved by parties by leading evidence in their favour.
        2. If they want to lead electronic evidence, then requirements of S.65B have to be fulfilled.
      2. Issue of Law
        1. Are framed on the basis of legal aspects taken up by the D.
        1. It is decided by the court only on the basis of relevant articles of concerned statutes.
        2. No evidence is required to prove issues of law.
    2. After the issues are framed, parties shall prove according to the burden of proof.
  1. Stage 6-Plaintiff’s Evidence
    1. Once issues have been framed, court shall be adjourned for next hearing where plaintiff can prove issues where burden of proof lies on him/her.
    2. Closed
  1. Stage 7-Defendant’s evidence
    1. Once Plaintiff has lead his evidence, then defendant has to prove the issue for which burden of prove lies on him.
    2. Closed
  1. Stage 8-Plaintiff’s evidence in rebuttal.
    1. Closed
  1. Stage-9-Arguments by counsels of each party in support of their case.
    1. Two types of arguments-
      1. Oral Arguments
      2. Written Statements
        1. If parties want, they can file written arguments in support of their claim.
        2. They shall be part of record to be kept in the judicial case file.
    2. After arguments are heard court may pronounce the judgement on the same day or reserve it for another day.
  2. Stage-10-Pronouncement of Judgement
    1. Court is required to state only brief facts in a nutshell.
    2. He shall write that ‘suit is decreed.’

These are stages if the suits is travelling normally. But in many cases, suit is reverted back to previous stages.

How a suit becomes abnormal?

  1. If the counsel of plaintiff does not want the case to be decided for the next 3-4 years. If his client has not fully paid him.
  1. So he will do some mischief by filing an application for the amendment of the Plaint, for inclusion of someone as necessary party etc.
  1. Reply of application of amendment by defendant.
  1. If amendment of plaint allowed by court, then suit will revert back to Stage 1.
  1. Then filing of amended WS.
  1. Reply of PO by plaintiff if raised by the defendant.
  1. Then amended replications.
  1. Additional Issues.
  1. Examination of PWs
  1. Examination of DWs
  2. Rebuttals.