Introduction

Section 26 to 35-B and orders 1 to 20 of the first schedule deal with the procedure relating to suits. Orderes 1,2 and 4 provide for parties to suit, frame of suit and institution of suit. The term SUIT has not been defined in the Code. According to the dictionary meaning . suit is a generic term of comprehensive signification referring to any proceeding by one person or persons against another or others in a court of law wherein the plaintiff pursues the remedy which the law affords him for the the redress of any inquiry or the enforcement of a right, whether at law or in equity. Ordinarily , a suit is a civil procedure instituted by the presentation of a plaint.

Essentials of suit
There are four essentials of a suit : Opposing parties Subject-matter in dispute Cause of action Relief

Parties to suit :
General
Order 1 deals within the parties to a suit, the first essential of a suit. It also contains provisions for addition, deletion and substitution of parties. Joinder, misjoinder and non-joinder. It also to some extent, deals with joinder of causes of action. A provision is also made for representative suit.

Plaint: Meaning
The term plaint is not defined in the code. It may, however , be described as a private memorial tendered to a court in which the person sets forth his cause of action , the exhibition of an action in writing.

Joinder of Parties

The question of joinder of parties may arise either as regards the plaintiffs or as regards the plaintiffs or as regards the defendants. An act may be done by a single individual and may adversely affect another individual. In that case , the question of joinder of p-arties does not arise. Thus where A assaults B, the latter may sue a for tort, as it may individually affect him. The question of joinder of parties arises only when an act is done by two or more persons.

Joinder of plaintiffs : Rule 1

Rule 1 provides for joinder of plaintiffs. It states that all persons may be joined in one suit as plaintiffs if the following two conditions are satisfied : 1. The right to relief alleged to exist in each plaintiff arises out of the same act or transaction 2. The case is of such a character that, if such persons brought separate suits, and any common questions of law or fact would arise. The primary object of rule 1 is to avoid multiplicity of proceedings and unnecessary expenses.

Illustrations

A enters into an agreement jointly with b and c to sell 100 tins of oil. A thereafter refuses to deliver the goods. Here both , b and c have each of them a right to recover damages from A. the said right arises out of the same transaction, namely, the breach of agreement, and common questions of law and fact would also arise. B& C therefore may file a suit jointly as plaintiffs against A for damages. A agrees to sell and deliver 100 tins of oil; to B at a particular rate on 1 st january1991. He also agrees to sell and deliver a like quantity of oil on the same day at the same price to c. B& C cannot join as plaintiffs in one suit against A as the transactions are different.

Joinder of defendants : Rule 3

Rule 3 provides for joinder of defendants . it states that all persons may be joined in one suit as defendants if the following two conditions are satisfied : The right to relief alleged to exist against them arises out of the same act or transactions

The case is of such a character that, if separate suits were brought against such persons, any common question of law or fact would arise.

The word and makes it clear that the conditions are cumulative and not alternative.

Necessary and Proper parties

There is an essential distinction between a necessary party and a proper party to suit. A necessary party is one whose presence is indispensible to the constitution of suit, against whom the relief is sought and without whom no effective order can be passed. A proper party is one in whose absence an effective order can be passed, but whose presence is necessary for a complete and final decision on the question involved in the proceeding. In other words, in absence of a necessary party no decree can be passed, while in absence of a proper party a decree can be passed so far as it relates to the parties before the court.

1. Amendments.
Section 26 of the Code was amended by the Amending Act of 1999, which came into effect w.e.f 1st July, 2002. Prior to insertion of aforesaid provisions, there was no requirement of filing affidavit with the pleadings. These provisions now require the plaint to be accompanied by an affidavit as provided in Section 26(2) and the person verifying the pleadings to furnish an affidavit in support of the pleading [Order VI Rule 15(4)]. The affidavit required to be filed under amended Section 26(2) and Order VI Rule 15(4) of the Code has the effect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings. It is, however, made clear that such an affidavit would not be evidence for the purpose of the trial. Further, on amendment of the pleadings, a fresh affidavit shall have to be filed in consonance thereof (Salem Advocate Bar Association v. Union of India).1 Prior to the amendment different High Courts followed different rule with regard to filing of affidavit. The legislative intent, which is also expressed in the Notes of Clauses that despite different rules of different High Courts about the institution of the suit, the Parliament wanted to introduce a uniform pattern. That is why Sub-section (2) has been introduced by way of amendment in Section 26 and the language in the said Sub-section has been used in mandatory form. The importance of that amendment is further clear from the fact that correspondingly Order 4 and Order 6 of the Code have also been amended and in Order 4, the amendment, which has come into existence, makes it very clear that the plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in Rules 1 and 2 of Order 4. Rule 2 of Order 4 says that every plaint shall comply with the rules contained in Order 6 or 7 as far as they are applicable. Order 6 Rule 15(4), which deals with verification of pleadings, makes it very clear under Sub-rule

(4) that a person verifying the plaint shall also furnish an affidavit in support of his pleadings. Therefore, the legislative intent, which has been introduced in Section 26, is further carried into effect by a chain of amendments in the First Schedule viz. under Order 4 and Order 6. Thus, the legislative intent is unmistakable and the effect of such amendment cannot be diluted and/or ignored by this Court (Bhakti Hari Nayak v. Vidya wait Gupta).2

2. Object of Amendment.
The statutory mandate for expeditious disposal of the civil suits is also apparent from the amendment brought about to Section 26 read with Order VI, Rule 15 of the Code of Civil Procedure. Section 26 has been amended by introducing Subsection (2) thereof, which provides that "in every plaint, facts shall be proved by affidavit". Similarly, Subrule (4) of Rule 15 of Order VI provides that "the person verifying the pleading shall also furnish an affidavit in support of his pleadings". These provisions are obviously introduced to do away with the need of repetitions of the facts stated in the plaint, and consequently, the plaint or written statement itself being able to be used as part of the evidence in the suit. Certainly, it could be contended that the plaint would not only contain statement of facts but also submissions on behalf of the Plaintiff, in spite of the fact that the Order VII, Rule 1 specifically provides that the plaint has to contain the facts and not the submissions. Order VII, Rule 1(e) provides that the plaint shall contain the facts constituting the cause of action and when it arose. Clause (f) thereof provides that the plaint should contain the facts showing the Court having jurisdiction. At the same time, it cannot be disputed that in order to justify the claim of the Plaintiff, a plaint may require to include certain submissions on behalf of the Plaintiff. Likewise is the case in relation to the written statement. Nevertheless, Section 26 specifically refers to the facts in the plaint. Being so, the affidavit, which is contemplated under Section 26(2), is essentially in relation to the facts which are required to be stated in the plaint in accordance with the Order VII, Rule 1(e) and (f) of the Code of Civil Procedure. Once those facts are stated in the form of affidavit, it could be accepted by the Trial Court as forming part of the evidence in terms of Order XVIII, Rule 4 of the Code of Civil Procedure, albeit, once it forms part of the evidence, the opposite party would be entitled to cross-examine the deponent in relation to those facts including the facts stated in the plaint. This would certainly avoid the need for further affidavit in relation to those facts which are already stated on oath in terms of the provisions comprised under Section 26(2) of the Code of Civil Procedure. This will certainly help in curtailing the delay in disposal of the proceedings. The legislature having therefore taken care to make various provisions with the intention of curtailing the delay in civil proceedings, any interpretation of such provisions of law has to be in consonance with those provisions and with the sole idea and purpose of curtailing the delay in the civil proceedings, undoubtedly, without ignoring the basic principles of natural justice (Bar Council of Maharashtra and Goa v. Shamrao Vishnu Kunjir).3

Section 26 of Code of Civil Procedure provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. The word "suit" has not been defined in the Code. In fact 'suit' is a term of art but in the Court of law it refers to a proceeding instituted in a Court by presentation of a plaint (Mst Puinbasi Majhiani v. Shiba Bhue).4 So a proceeding that does not commence with a plaint is not a suit. The word 'prescribed' used in the section means prescribed by rule. The word 'suit' ordinarily means and apart from the context must be taken to mean a civil proceeding instituted by a plaint. The words "or in such other manner as may be prescribed" are new. No other manner of instituting a suit has hitherto been prescribed. The Order 4, Rule 1, Code of Civil Procedure, provided that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf; that every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable. Thus, unless a proceeding starts with a plaint as such it is not a suit and accordingly an order in such a proceeding cannot be a decree within the meaning of the Code of Civil Procedure (Mst Puinbasi Majhiani v. Shiba Bhue).5

3. Pauper suit.
There has been a conflict of judicial opinion on the question whether a suit could be held to have been instituted when a petition to sue as a pauper was presented. One view is that until permission is granted under Rule 7 of Order 33 there is no suit instituted. The other view is that since a suit under Section 26 may be instituted not merely by the presentation of a plaint but also in such manner as may be prescribed the presentation of the application by the pauper under Order 33 would amount to institution of the suit (Juggal Kishore v. Dhanno Devi; Vijay Pratap Singh v. Dukh Haran Nath Singh and Anr; Matuki v. Kamakhya)

SECTION 26 of the Civil Procedure Code says that every suit must be instituted by presentationof a plaint or in other prescribed manner. In every plaint, the facts must be proved by affidavits.Plaint is a private memorial submitted to court in writing in which the person presents his causeof action. Only the person who has got cause of action or his authorized representative caninstitute a suit. Suit must always be instituted by the presentation of the plaint only, and hence any civilproceeding commenced by means of an application or otherwise does not become a suit.As per Order 4, Rule 1, the plaint must be submitted in duplicate to the court. Further everyplaint must comply with the rules contained in Order 6 and 7.The plaint must show in whatcapacity the plaintiff sues the defendant. While submitting the plaint, the Court fee for theservice of the plaint along with the summons must be paid.As per Rule 2 of Order 4, the particulars of every suit must be entered in the court register called Register of civil suits. The entries are serially numbered in every year according to their order of admission of plaints.

Table of cases :

1. Salem Advocate Bar Association v. Union of India MANU/SC/0450/2005: AIR 2005 SC 3353. 2. Bhakti Hari Nayak v. Vidya wait Gupta MANU/WB/0579/2004: AIR 2005Cal145. 3. Bar Council of Maharashtra and Goa v. Shamrao Vishnu Kunjir MANU/MH/0345/2006, AIR2006B. 4. Mst Puinbasi Majhiani v. Shiba Bhue MANU/OR/0020/1967: AIR 1967 Ori 41. 5. Mst Puinbasi Majhiani v. Shiba Bhue MANU/OR/0020/1967: AIR 1967 Ori 41. 6. Juggal Kishore v. Dhanno Devi MANU/SC/0017/1973: AIR 1973 SC 2508; Vijay Pratap Singh v. Dukh Haran Nath Singh and Anr. MANU/SC/0394/1962: [1962] (2) Suppl. S.C.R. 675; Matuki v. Kamakhya, MANU/BH/0098/1958: AIR 1958 Pat 264 (FB).

CIVIL PROCEDURE CODE

INSTITUTION OF SUITS

ACKNOWLEDGEMENT

BIBLIOGRAPHY

C.K TAKWANI INDIAN KANOON MANUPATRA ILC.COM

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