Section 124, under Chapter VIII of the Indian Contract Act, 1872, the contract of indemnity, is defined and explained.
It is a Contract through which, one party promises to save the other party from loss caused to him by the conduct of the promissor himself, or by the conduct of any other person, is called as a “contract of indemnity”.
Illustration-
T contracts to indemnify Cagainst the consequences of any proceedings which D may take against C in context of a particular sum of rupees 300. This is a contract of indemnity.
Section 18 of The Indian Contract Act, 1872 defines and explains the term Misrepresentation.
The term “Misrepresentation terms and includes-
(1) the positive assertion, in a way or manner not warranted by the information of the person who’s making it, of that which is not true, though that person believes it to be true
(2) any breach of duty which, without an intention to deceive, gains an advantage of the person committing it, or any one claiming under such person, by misleading another person to his prejudice, or to the prejudice of any one claiming under him
(3) causing, however innocently, a party or person to an agreement, to make a mistake as to the substance of the thing which is the subject matter of the said agreement
FRAUD (Meaning & Definition) Section 17 of the Indian Contract Act, 1872 explains and defines the term “Fraud”.
In law, the term “Fraud”, means and includes any of the following acts that are committed by a party to a contract, or with his connivance, or by his agent with an intention to deceive the other party or his agent, or to induce the other party to enter into a contract:-
(1) the suggestion, as a fact, of that which is not true or right, by one who does not believe it to be true or right
(2) the active concealment of a fact by one having some knowledge or a belief of the particular fact
(3) a promise made without nay intent to perform it or bring it into action
(4) any other act which amounts to deceiving the other person
(5) any act or omission which is declared by the law as fraudulent.
Explanation of this section-
A mere silence as to the facts likely to affect the willingness of a person to enter into a contract cannot be termed as fraud, unless and until, the circumstances of the case are such that, regard being had to them, it is the duty of that person who keeps a silence to speak, or unless his silence, is, in itself equivalent to a speech.
An Adjournment in law is a suspension of proceedings to another time or place by a judge. An adjournment is an ending or dismissal of further business by a court, legislature, or public official, either temporarily or permanently.
If an adjournment is final, it is said to be sine die, which means, “without day”, or without a time fixed to resume the work.
This is a Latin phrase, which means, “hear the other side too”. This rule is a Rule of Law and a part of the Principles of Natural Justice. It is also called the Rule of Fair Hearing. As per this rule, no one shall be condemned unheard. It says that no person should be judged without a fair hearing in which each party to the case is given an equal opportunity to respond to the evidence against him.
It includes the right to receive notice of a hearing and to be legally represented. This rule is considered a principle of fundamental justice and equity in most legal systems.
– The term “Amicus Curiae”, literally means, ‘Friend of Court’. An Amicus Curiae is that person who is not party to a case, but is the one who voulantarily or upon the invitation of the Court, instructs and assists the court on a matter of law concerning which the latter is doubtful through filing his briefs in the court against the matter to which he has been appointed as an Amicus Curiae.
Such Amicus Curiae briefs are filed in are commonly filed in appeals concerning matters of broad public interest, e.g, civil rights cases. They can be filed either by government or private persons.
An Amicus Curiae help in educating the court on a point of law that are in doubt. He gathers information and provides knowledge to the court about some aspect of the case which the court may otherwise miss. An Amicus Curiae must not be a party to the case or not even an Attorney to the case, but must have some knowledge or information or perspective on the point of law for which he has been made the friend of Court to assist it with his valueable views that are beneficial to the court.
An affidavit is a written sworn statement of fact which is voulantarily made by the person making it who is called as an affiant or deponent, under an oath, administered by a person authorized to do so by Law.
The person making the statement ( who is known as an affiant) starts off his/her statement with his name, occupation and address followed by the description of facts usually, but not always, chronilogically.
Such statement is witnessed as to the authenticity of the affiant’s signature by a taker of oaths which is notary public or commissioner of oaths.
A Writ is a formal written order issued by a government entity and this government entity is mostly the Court in the name of the sovereign power. A warrant is also a type of writ. Article 32 of the Constitution of India empowers the Supreme Court to issue orders and writs to safeguard the fundamental rights guaranteed under part III of the Constitution of India.
The High Court is also empowered to issue writs in order to safeguard the fundamental rights under part III of the Constitution
The term Confession has been defined under section 24 of the Indian Evidence Act. As this section comes under the heading of admissions, it makes it clear that confessions are merely one species of admissions. Although Confessions do not have a precise definition to it but still can be explained.
Confession is the admission of guilt or its inferences by an accused made in custody. As per Justice Stephen, a “confession”, is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.
Case Law-
Pakala Narayan Swami v. Emperor-
Lord Atkin in this case observed, “A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not i itself a confession”.
Types of Confessions-
There are two types of confessions, namely-
1) Judicial Confession- is one which is made before a magistrate or in Court in due course of legal proceedings.
2) Extra-Judicial Confession- are the ones which are made else where than before a magistrate or Court.
An act does not make a defendant guilty without a guilty mind. The act itself does not constitute a guilt, unless and until it’s done with a guilty intent.
This maxim applies only to criminal cases, whereas in civil cases it is otherwise
Section 15 of the Indian Contract Act, 1872 defines Coercion. ‘Coercion’ is the committing or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person to enter into an agreement.
Explanation- It is immaterial whether the Indian Penal Code (45 of 1860) is or is not in force in the place where the coercion is employed.
Illustrations-
B, on board an English ship on the high seas, causes A to enter into an agreement by an act amounting to criminal intimidation under the Indian Penal Code (45 of 1860).
B later sues A for breach of contract at Calcutta.
B has committed coercion, although his act is not an offence by the law of England, and although section 506 of the Indian Penal Code (45 of 1860) was not in force at the time when or place where the act was done.
Detail information on The Indian Contract Act, 1872- Coercion-defined
Indian Evidence Act,1872- Admissions- Meaning, definition & Evidentiary value
Indian Evidence Act,1872- Admissions
ADMISSIONS- (Definition & Meaning)-
Section 17 of the Indian Evidence Act defines Admissions, according to which an admission means a statement (oral or documentary or contained in electronic from) which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the person and under the circumstances mentioned under sections 18 to 23 of the Indian Evidence Act.
It is important for an admission to be clear, precise and not vague or ambiguous. An admission is the best evidence that an opposite party can rely upon, though not conclusive, it is nevertheless critical on the point unless proved false or is validly allowed to be withdrawn.
EVIDENTIARY VALUE OF ADMISSION-
Section 21 of the Indian Evidence Act as a general rule, lays down that, admissions are relevant, and may be proved against the person who makes them or his representative in interest, and if duly proved, though not conclusive, are sufficient evidence of the facts submitted.
An admission is not conclusive unless it amounts to estoppal. The person against whom an admission is proved is at a liberty to show that it was mistaken or untrue.
When an admission is duly proved, and the person against whom it is proved does not satisfy the Court that it was mistaken or untrue, the Court may decide in accordance with such admission. A false admission does not bind that person making such admission.
What is a Contract? How is it Formed? Its essential elements
What is a Contract? How is it Formed? Its essential elements
What is a Contract? (Definition)
The term Contract has been defined under Section 2 (h) of the Indian Contract Act ,1872. It defines a Contract as an Agreement enforceable by law.
An agreement cannot turn into a contract unless it can be enforceable by Law. So, in order to be enforceable, a contract must contain all the essential elements of a valid contract as defined in Section 10 of teh Indian Contract Act 1872.
Section 10- As per section 10 of the Act, “All agreements are contracts, if they are made by parties out of their-
Free Consent
Parties who are competent to Contract
For a lawful consideration
With a lawful object
And are not expressly declared by the Act to be void.
Essential Elements Of a Contract-
The essential elements of a contract as defined under section 10 of the Indian Contract Act 1872 are-
Agreement (Offer & Acceptance)
Legal purpose
Lawful Consideration
Capacity to contract
Consent to contract
Lawful object
Certainity
Possibility of performance
Not expressly declared void
Legal formalities such as Writing, Registration..
What is a Contract? How is it Formed? Its essential elements
A Writ is a formal written order issued by a government entity and this government entity is mostly the Court in the name of the sovereign power. A warrant is also a type of writ. Article 32 of the Constitution of India empowers the Supreme Court to issue orders and writs to safeguard the fundamental rights guaranteed under part III of the Constitution of India.
The High Court is also empowered to issue writs in order to safeguard the fundamental rights under part III of the Constitution.
Types of Writs-
There are five kinds of writs namely- Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo Warranto. They are explained below-
A) Habeas Corpus-
The Writ of habeas corpus is issued for an illegal detention of a person. It is an order to produce before the Court the person who has been detained and the Court examines such person and if the detention is found illegal, the Court sets free such person hence protects the fundamental right to liberty of the person which was infringed by the illegal detention.
Petition for Habeas Corpus-
According to the general rule, a Petition can only be filed by that person who’s rights have been infringed but under Habeas Corpus, another person on behalf of the aggrieved can also file the Petition which is an exception to the rule.
B) Mandamus-
Mandamus means “we command” or “we order”. This writ is passed by the High Court or the Supreme Court to a public authority or a lower court to perform a public or statutory duty. The Supreme Court passes such writ in a situation when a duty is to be performed by the public authority, corporation or a lower Court and such duty is not performed by them.
C) Certiorari-
The writ of Certiorari is issued by the High Court or the Supreme Court to quash an order passed by the Court inferior to the High Court and the Supreme Court.
D) Prohibition-
The Writ of Prohibition is passed by the Supreme Court or the High Court to a lower Courts in order to prohibit them to do an act which is contrary to the principle of Natural Justice and beyond their authority to exercise. Anything exercised beyond the jurisdiction by the lower courts can be stopped by passing the writ of prohibition.
E) Quo Warranto-
This writ is issued by the Supreme Court or the High Court to stop a person or restrain him from holding the office which he has no authority to hold. Before passing such writ the person is entitled to give an explanation to the Court that by what authority he hold such office. This writ is applicable only to public offices.
Plea bargaining is a concept widely recognized in the United States of America and inserted by the Code of Criminal Procedure(Amendment) Act, 2005. Sections 265A-265L deals with Plea bargaining under the Code.
Plea bargaining is a concept of negotiation on behalf of the accused by accepting his guilt in the Court so that he may be awarded a lighter punishment for the offense committed by him. It is a kind of a deal between the accused and the prosecution by which the accused agrees to plead guilty to a charge which is less serious in nature without going through the long procedure of trail in the Court. Plea bargaining is therefore the best concept for the early disposal of trails.
It originated in America and even today 90% of the criminal cases in America are disposed of by Plea bargaining. As a well recognized fact that the Litigation process is slow and very expensive, the legislature thought of adopting Alternative dispute resolution methods for the quick and cheap disposal of cases, Plea bargaining is one amongst them which proves to be useful for the victim as well as the accused and also the Court in disposing of the Matter effectively and without much delay because Justice delay is equal to Justice denied.
Who are entitled to take the benefit of Plea bargaining?
To obtain the benefit of Plea bargaining, an application has to be filed by the accused before the Magistrate.
Section 265B states that who are the persons that are entitled to file the application of Plea bargaining-
Any accused against whom a trail is pending and who is above the age of 18 years.
Section 265D provides that the accused should not be a juvenile child under Section 2(k) of the Juvinile Justice( Care and Protection of Children Act), 2000.
Section 265B(2) provides that the accused should not have been convicted earlier for the same offense.
Section 265B(1) provides that the application of plea bargaining must be filed by the accused in that court where the trail is pending.
Section 265(2) provides that what all contents the application of plea bargaining shall contain-
A brief description of the case and the offense committed by the accused.
The application should accompany an affidavit by the accused stating that he is voluntarily filing this application and must contain a statement that he has not been convicted earlier for the same offense.
Section 265B(3) provides that on receiving such application of plea bargaining the Court shall send a Notice to the- to the Public Prosecutor or the Complainant, as the case may be and the accused to appear on the date fixed for the case.
On the fixed date when the accuse appears before the Court, the Court shall examine him (in camera) and at this time the Court shall satisfy itself that the application filed by the accused is filed by him voluntarily.
When the Court is satisfied that the application was filed by the accused voluntarily, it shall direct the Prosecutor or the Complainant to negotiate with the accused and such negotiation shall also include paying of compensation to the aggrieved.
But in any case if the Court finds that the application was not filed voluntarily by the accused then the Court shall not consider such application and shall proceed according to the normal trail provided under the Code.
Section 265D states that where a mutually satisfactory disposition of the case has been worked out between the Complainant and the Accused then the Court shall pass an order of compensation to the victim.
The judge of the Court in case of plea bargaining shall be final and no appeal lies against such judgment subject to the jurisdiction of the Supreme Court under Article 136 or of the Hight Court under Article 226 and 227 of the Constitution.
TYPES OF PLEA BARGAINING
Charge bargaining-
Negotiating on the charges put forth against the accused in the trail.
2. Sentence Bargaining-
Pleading guilty on the stated charge for obtaining lighter sentence.
3. Fact Bargaining-
Involves an admission of certain fact in return for an agreement, not to introduce certain other facts into evidence.
Section 438 of Cr.p.c deals with the provisions of an Anticipatory Bail.
When a person has an apprehension or a reason to believe that he may be arrested for committing a non-bailable offense, that person in such a case shall apply for an anticipatory bail.
The essential requirement under this section is that the person must have ‘a reason to believe’ that he might be arrest for commission of a non-bailable offense.
To Whom shall the Anticipatory Bail shall be applied?
An Anticipatory Bail can only be applied before the High Court or the Court of Session for obtaining a direction under section 438 that in the event of such an arrest as apprehended by him, he shall be released on bail.
The Court may pass such a direction after taking into consideration the following factors-
The nature of the accusation
Ascertaining the fact that whether the person has undergone a conviction in the past for a cognizable offense.
The fact that the accusation of the person is made in order to injure or humiliate him by having him so arrested.
After considering all such factors the Court shall approve the application of Anticipatory Bail by passing an interim order or reject the application, as the Court deems fit.
At what time an application for Anticipatory Bail can be applied for?
Anticipatory Bail can be applied for and be granted even after the F.I.R has been filed but not after the person/accused getting convicted.
A Negotiable Instrument is that document that includes a ‘promise to pay’ a certain amount of money to the bearer of the document. Its a mode of transferring a debt from one person to another. Negotiable Instruments are always in written form.
Examples of Negotiable instruments are- a cheque, a promissory note, a bill of exchange.
DEFINITION OF A NEGOTIABLE INSTRUMENT
Documents of a certain type which are used in commercial transactions and monetary dealings, are known Negotiable instruments.
“Negotiable” means transferable by delivery and
“instrument” means a written document by which a right is created in favor of some person. Thus, negotiable instrument means a document which is transferable by delivery.
According to Section 13(i) of negotiable instrument Act, 1881 a negotiable instrument includes and means a promissory note, bill of exchange or cheque.
CHARACTERISTICS OF A NEGOTIABLE INSTRUMENT
Freely transferrable:The property in a negotiable instrument gets transferred by a simple process of mere delivery if it is payable to bearer, endorsement and delivery or payable to order.
Recovery: One can sue upon the instrument in his own name.
Presumption as to considerations: These instruments are presumed to have been
made,
drawn,
accepted,
endorsed,
negotiated
or transferred for consideration.
Payable to order or bearer: It must be payable either to order or bearer.
Holder’s title free from all defects: The holder (one who acquires the instrument in good faith and for consideration) in due course gets title free from all defects.
Presumption as to holder-:Every holder of negotiable instrument is presumed to be holder in due course.
TYPES OF NEGOTIABLE INSTRUMENTS
There are two types of Negotiable Instruments:
Instruments Negotiable by Statute:
The Negotiable Instruments Act mentions orgy three kinds of negotiable instruments (Section 13). These are:
Promissory Notes
Bills of Exchange
Cheques:
Instruments Negotiable by Custom or Usage:
There are certain other instruments which have occupied the character of negotiability as a result of usage or custom of trade. For example:
Exchequer bills.
Bank notes,
Share warrants,
Circular notes,
Bearer debentures,
Dividend warrants,
Share certificates with blank transfer deeds, etc.
SUB-TYPES OF NEGOTIABLE INSTRUMENTS
PROMISSORY NOTES:
Section 4 of the Act defines a promissory note as an instrument in writing.
It contains an unconditional undertaking which is signed by the maker to pay of certain sum of money to, to the order of certain person, or to the bearer of the instruments. The person, who makes the promissory note, promises to pay and is called the maker. The person to whom the payment is to be mode is called the payee.
Essential features:
The following are the essential features of a Promissory note,:
The promise must be in writing.
The promise must be signed by the maker or payer.
The promise must be unconditional.
The amount to be paid must be definite in terms of money.
It must be payable on demand or at a fixed or determinable future date.
It must be payable to a definite person. The Payee must be certain.
Promissory note must bear stamp at the rate prescribed by law of a country.
There are two parties a promissory note,
Maker
Payee
NOTE: An instrument containing a promise to pay a sum after educating necessary expenses or imposing any other condition is not a promissory note.
Illustrations:
I promise to pay X Rs. 1500, and all other sums which shall be due to him.
I promise to pay Y Rs. 5500, first deducting there out any money which he may owe me.
Cases:
In Chandabolu Bhaskara Rao’s case, the Honble High Court of Andhra Pradesh held that since promissory note is not a compulsorily attestable document, even if the signatures of the attesters are taken and after its execution it does not amount the material alteration. So it does not get vitiated. Therefore, whether there were attesters or not at the time of its execution is immaterial, more so when its execution is admitted.
In Haribhavandas Parasaran and Co. v. A.D. Thakur [A.I.R. 1963 Mys. 107], it was held that- It is mandatory that the presumption under Section 118(a) should be made until the contrary is proved.
BILL OF EXCHANGE:
It is an instrument in writing. Further, it contains an unconditional order signed by the maker, directing a certain person to pay
a certain sum of money only to, or
to the order or
certain person to the bearer of the instrument.
Essentials:
The amount payable must be certain.
The payment must be made in money.
The bill Payable may be either on demand or after a specified period.
The bill may be payable either to the bearer or to the order or payee.
Illustrations:
Please let the bearer have Rs. 15000 and oblige.
We hereby authorize you to pay on our account to the order of X, Rs 65000.
CHEQUE: A cheque is a bill of exchange drawn on a specified banker. It is expressed to be payable otherwise than on demand.
Essentials:
In writing
Express order to pay
Definite and unconditional order
Signed by drawer
Order to pay certain amount
Payable on demand
Parties:
Drawer: The maker of a bill of exchange.
Drawee: The person directed to pay the money by the drawer.
Payee: To whom or to whose order the money ore directed to be paid by the instruments. The person named in the instrument only.
Case:
Dashrath Roopsingh Rathod Vs. Stae of Maharashtra & Anr.
The Supreme Court in this case has changed the basic criteria under Section 138 of Negotiable Instruments Act to prosecute a person who had presented the cheque which had been returned due to insufficiency of funds or if the amount exceeds the amount in the bank of the payer.
Types of Cheques:
Cheques are of different kinds-
1.Open cheques: An open cheque is one which is payable in cash across the counter of the bank
2. Crossed cheques: A crossed cheque is one which has Iwo short parallel lines marked across its face. It can be paid only to another banker. The advantage of crossing is that it reduces the danger of unauthorized persons getting possession of a cheque and cashing it.
Bearer Cheque
Order Cheque
Marked Cheque
Not payable or bad cheque
Ante-dated Cheque
Post dated Cheque
Stale Cheque
Multilated Cheque
Digital Cheque- Cheques in Electronic form and Truncated Cheques.
Banker Cheque
Golden Cheque
Travellers Cheque
DIFFERENTITATIONS
I.
Promissory Note
Bill of Exchange
1. It contains an unconditional promise.
1. It contains an unconditional order.
2. There are two parties –
· the maker and
· the payee.
2. There are three parties –
· the drawer,
· the drawee and
· the payee.
3. It is made by the debtor.
3. It is made by the creditor.
4. Acceptance is not required
4. Acceptance by the drawee is a must
5. The liability of drawer is primary and absolute as well.
5. The liability of the maker/drawer is secondary. Also, it is conditional upon non-payment by the drawee.
II.
Cheque
Bill of Exchange
1. It is drawn on a banker.
1. It can be drawn on anybody including a banker.
2. The amount is always payable on demand only.
2. The amount is payable on demand or even after a specified period.
3. It can be crossed to end its negotiability.
3. It cannot be crossed.
4. Acceptance is not required.
4. Acceptance is a must.
OTHER NEGOTIABLE INSTRUMENTS
Bill in sets:
Foreign bills are generally drawn in set of 3 each. To avoid miscarriage during transit, they are drawn in different parts and each part is transmitted separately and all these parts, as a whole constitute a complete bill.
Accommodation Bill:
They are drawn, accepted and subsequently discounted from a bank for accommodating a friend.They are not real bills and hence, do not represent acknowledgement of an actual debt.
Example: A in order to financially help X, writes a bills on a mutual friend X who accepts the bill, Y then gets the bill discounted from a bank. He pays the required amount on maturity to X (acceptor) who in turn makes payment to the bank. Thus in an accommodation bill it is the payee who is the principal debtor and the drawer and accept or act as a surety for him.
Ambiguous Instruments (Section 17)
An instrument, which in form is such that it may either be treated by the holder as a bill or as a note, is an ambiguous instrument. Bill drawn to. to the order of the drawee, by an agent on his principal, by one branch of a bank on another, by the direction of a company, their cashier are also ambiguous instruments.
Example: where P draws a bill payable to P’s order, it is not an ambiguous instrument and cannot be treated as a promissory note.
Inchoate Stamped Instrument (Sec 20):
When one person gives to another such a document, the other person is prima facie entitled to complete the document and make it into a proper negotiable instrument up to the value mentioned in the instrument, or up to the value covered by the stamp affixed on it.
The person signing the instrument is liable on it to any holder in due course. Inland and foreign Bills:
A bill which is
drawn or made in India and also made payable in India or
drawn or made in India upon any person resident in India, although it may be made payable in a foreign country, is deemed to be an inland bill.
Example: A bill of exchange drawn in Bombay and made payable in Mumbai, although the drawee may be residing outside India. Or a bill of exchange drawn in Raipur on a person resident in Mumbai, although it may be made payable outside India.
A bill which is not an inland bill, is deemed to be a foreign bill.
Example : A bill of exchange drawn in India, on a person residing outside India and made payable outside India.
Forged Instruments:
In Forged instruments, there is a complete absence of title from the very beginning. Forged instruments in the eyes of law have no existence whatsoever. A forged signature is altogether inoperative.
Plaint under CPC- Particulars, Procedure, Admission & Rejection
Plaint under CPC: Particulars, Procedure, Admission & Rejection
A plaint is a legal document which contains the written statement of the plaintiff’s claim. A plaint is the first step towards the initiation of a suit. In fact, in the very plaint, the contents of the civil suit is laid out.
Through such a plaint, the grievances of the plaintiff are spelled out, as well as the possible causes of action that can arise out of the suit. A plaint which is presented to a civil court of appropriate jurisdiction contains everything, including facts to relief that the plaintiff expects to obtain.
Although it hasn’t been defined in the CPC, it is a comprehensive document, a pleading of the plaintiff, which outlines the essentials of a suit, and sets the legal wheels up and running.
Order VII of the CPC particularly deals with a plaint. A few of the essentials of a plaint implicit in itself are those only material facts, and not all facts or the law as such is to be stated, the facts should be concise and precise, and no evidence should be mentioned.
PARTICULARS OF A PLAINT:
The name of the particular court where the suit is initiated.
Name, place, and description of the plaintiff’s residence
Name, place, and description of the defendant’s residence.
A statement of unsoundness of mind or minority in case the plaintiff or the defendant belongs to either of the categories.
The facts that led to the cause of action and when it arose.
The facts that point out to the jurisdiction of the court.
The plaintiff’s claim for relief.
The amount allowed or relinquished by the plaintiff if so
A statement containing the value of the subject matter of the suit as admitted by the case.
ADDITIONAL PARTICULARS:
Order VII, Rule 2 states that the plaintiff shall state the exact amount of money to be obtained from the defendant if the case is so. On the other hand, if the exact amount cannot be arrived at, as is then case with mesne profits, or claim for property from the defendant, an approximate figure must be mentioned by the plaintiff.
Order VII, Rule 3 states that when immovable property is the subject matter of the plaint, the property must be duly described, that is sufficient in the ordinary course to identify it.
Order VII, Rule 3 states that when the plaintiff has initiated the suit in a representative capacity, it has to be shown that he/ she has sufficient interest in doing the same as well as has taken the required steps to ensure the same.
The plaint should adequately show the involvement of the defendant, including his/ her interests in the same and thereby justifying the need to bring him/ her forward.
If the plaintiff files the suit after the expiration of the period of limitation, he/ she must show the reason for which such an exemption from law is being claimed.
PROCEDURE FOR ADMISSION OF THE PLAINT:
When the court serves the summons for the defendant, according to Order V, Rule 9, the plaintiff must present copies of then plaint according to the number of defendants, and should also pay the summons fee, within seven days of such a summons.
THE PARTICULARS OF A PLAINT CAN BE DIVIDED INTO THREE IMPORTANT PARTS SUCH AS HEADING AND TITLE, BODY OF THE PLAINT, AND RELIEF CLAIMED.
HEADING AND TITLE:
NAME OF THE COURT:
The name of the court should be written as the heading. It is not necessary to mention the presiding officer of the court. The name of the court would be sufficient. Eg. In the Court of District Judge, Kolkata.
PARTIES TO THE SUIT:
There are two parties to every suit, the plaintiffs and the defendants. For the purpose of the suit, the name, place, and description of the residence of both the plaintiffs and the defendants have to be mentioned in the particular plaint.
When there are several plaintiffs, all of their names have to be mentioned and have to be categorically listed, according to their pleadings, or in the order in which their story is told by the plaintiff.
Minors cannot sue nor can be sued. So if one of the parties is a minor or of unsound mind, it will have to be mentioned in the cause title.
TITLE OF THE SUIT:
The title of the suit contains the reasons for approaching the court and the jurisdiction before which the plaint Is initiated.
BODY OF THE PLAINT
This is the body of the plaint wherein the plaintiff describes his/ her concerns in an elaborative manner. This is divided into short paragraphs, with each paragraph containing one fact each. The body of the plaint is divided into two further parts which are:
FORMAL PORTION:
The formal portion contains the following essentials.
A statement regarding the date of cause of action. It is necessary for every plaint to contain the date when the cause of action arose. The primary objective behind this is to determine the period of limitation.
There should be a statement regarding the jurisdiction of the court. The plaint must contain all facts that point out the pecuniary or territorial jurisdiction of the court.
The value of the subject matter of the suit must be stated properly in this part of the plaint.
Statement regarding minority.
The representative character of the plaintiff
The reasons why the plaintiff wants to claim exemptions under the law if the suit is initiated after the period of limitation.
SUBSTANTIAL PORTION:
This portion of the plaint must contain all the necessary and vital facts, which constitute the suit. If the plaintiff wishes to pursue a course of action on any other grounds, such grounds must be duly mentioned.
It should be shown in the plaint that the defendant is interested in the subject matter and therefore must be called upon by the court.
If there is more than one defendant, and if the liability is not joint, then the individual liability of each and every defendant must be shown separately.
In the same way, if there is more than one plaintiff, and their cause of action is not joint, then too, the same has to be mentioned separately.
RELIEF:
The last part of the plaint is the relief. The relief claimed must be worded properly and accurately. Every plaint must state specifically the kind of relief asked for, be it in the form of damages, specific performance or injunction or damages of any other kind. This has to be done with utmost carefulness because the claims in the plaint cannot be backed by oral pleadings.
SIGNATURE AND VERIFICATION:
The signature of the plaintiff is put towards the end of the plaint. In case the plaintiff is not present due to any legitimate reason, then the signature of an authorized representative would suffice.
The plaint should also be duly verified by the plaintiff. In case the plaintiff is unable to do so, his/ her representative may do the same after informing the court.
The plaintiff has to specify against the paragraphs in the pleadings, what all he/ she has verified by his/ her own awareness of the facts, and what has been verified as per information received, and subsequently believed to be true.
The signature of the plaintiff/ verifier, along with the date and the place, at the end of the plaint is essential.
The verification can only be done before a competent ourt or in front of an Oath Commissioner.
Where the language of the plaint is beyond the comprehension of the plaintiff, the same has to be translated, or made known to the plaintiff, and only after that can he/ she put his/her signature and get the plaint verified by the Oath Commissioner.
RETURN OF PLAINT
Order VII, Rule 10 states that the plaint will have to be returned in such situations where the court is u able to entertain the plaint, or when it does not have the jurisdiction to entertain the plaint.
The courts can exercise the power of returning the plaint for presentation before the appropriate court if it feels that the trial court itself did not have the appropriate jurisdiction in the first place.
Once the appellate court finds out that the trial court decided on the civil suit without proper jurisdiction, such decision would be nullified.
DISMISSAL OF SUIT
If the plaint is to be returned to the parties after its rejection, the court has to fix a date for the same where the parties can arrive for this purpose.
This was mentioned in Rule 10, inserted by the amendment act of 1976. If the court does not have the adequate jurisdiction, the proper course is to return the plaint and not to dismiss it.
NATURE OF RETURNED PLAINT
When a plaint has been returned for want of proper jurisdiction, it is to be treated as a fresh plaint. This fresh plaint can be amended and no consequences can arise as a result of it. This amended plaint cannot be rejected by stating that the averments were not present in the original plaint. This argument will not be taken into consideration and the plaint will be allowed to stand.
WHEN CAN A PLAINT BE REJECTED?
A plaint can be rejected under the following scenarios:
Where the cause of action is not disclosed
When the relief claimed by the plaintiff is undervalued, and he/ she is not able to correct it even after being instructed by the court to do so.
When the relief claimed is proper, but the plaintiff proceeds with the plaint on a paper which has not been stamped sufficiently and fails to do so even after the court’s instruction.
Where the suit stems from a statement which has been essentially barred by law.
WHEN CAN THE APPLICATION FOR THE REJECTION OF A PLAINT BE MOVED?
Application for the rejection of the plaint can be in instituted at any time, even after the issues have been solidified in the said plaint.
CONCLUSION
A plaint is important in the sense that it is the first and foremost step towards instituting the suit. Therefore, due care has to be taken to ensure that the procedure required for the initiation of plaint has been duly recognized.
It is mandatory to follow protocol by stating the relevant facts, the necessary details, refrain from providing evidence and mention the kind of relief envisaged so that the plaintiff is duly benefitted
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