Suits of civil nature falls into various categories, depending on the nature of suits, or status of person filing the suit etc.
These categories in brief are as follows:
- Suits By Or Agents Govt./ Public Office
- Suits By Or Against Military/Naval Men/Airmen
- Suits By Or Against Corporations
- Suits By Or Against Firms And Persons Carrying On Business In Names Other Than Their Own.
- Suits By Or Against Trustees, Executors and Administrators.
- Suits By Or Against Minors And Persons Of Unsound Mind
- Suits By/Against Persons Of Unsound Mind
- Suits Relaing To Matters Concerning The Family
- Summary Procedure. (Suit Relating To Bills Of Exchange, Hundis, Promissory Notes Etc.)
- How is Summary Suit Instituted
Suits By or Agents Govt./Public Office
- Where the Govt. or Public Officer in official capacity is plaintiff (one who files the suit), or the defendant (against whom the suit is filed), such Authority shall be named as "Union of India" or " State Govt. of (State Concerned) or The " Name & designation " of public officer.
- In case, the suit is filled against a public officer in his/their official capacity, the appropriate govt. shall also be made a party to the suit.
- In such case, a two months prior notice has to (sec 80) be served on the Govt./public officer, in case if/he is defendant having regard as--- as to who the party is, the notice shall be served on the following:
- In case of Central Government, to it's secretary
- In case of State Government, to it's secretary, or the collector of the district.
In case of public officer, to him at his office.
However, in case of urgent basis/relief, the suit may be instituted against Govt./public officer, after taking permission of the court.
The court is required to allow a reasonable time to the Government, to communicate the subject matter of the suit through proper channel so as to enable the Govt. to accordingly instruct the Govt. pleader/Counsel appearing on it's behalf. The court at its discretion may also extend such time. However such time should not exceed 2 months in aggregate.
Where the Govt. undertakes the defence of such public officer, it shall authorise it's pleader to appear in the court, and the pleader shall make an application in that regard to the Court. If no such application is made by the pleader within the time fixed by the court, the case shall proceed as if between private parties.
However, in all cases against the Govt./public officer the endeavor of the court shall be to assist the parties to arrive at an amicable settlement if possible at the first instance and for that the court is empowered to adjourn the proceedings for a reasonable period of time in which attempts at settlement may be made by the parties.
Suits By or Against Military/Naval Men/Airmen
A suit may be instituted against any officer employed by any of the Armed forces; i.e. Navy, Military or Airforce in their personal capacity and it shall proceed in the same manner as between two private parties.
Suits By or Against Corporations
- In suits against a corporation ( Companies : Private or public ), the summons are to be served either on the secretary, or any of the directors or principal officer of the corporation or may be sent by registered post or personally served at the registered office of the corporation.
- If the corporation does not have any registered office then the service shall be made at any place where the corporation carries on it's business.
- Any documents concerned with the suit ( by or against the corporation ) can be signed/verified by the following persons on behalf of the corporation:
- The Secretary
- Any of it's Director
Any Principal officer
Who are conversant with the facts and circumstances of the suit.
The court is empowered to direct personal appearance of any of the above named officer at any stage of the suit, to answer questions relating to the suit.
Suits By or Against Firms and Persons Carrying on Business in Names Other Than Their Own.
- A suit may be instituted by or against any 2 or more persons claiming to be partners in a partnership firm in the name of the firm provided such persons, were partners in the firm on the date when the cause of action occurred.
- Any party to such a suit may apply to the court for a statement of the names & addresses of all the partners of the firm as on the date of occurrence the cause of action. The court shall direct such a statement to be furnished and verified in a specific manner.
- The proceedings in the suit shall then continue in the firm's name but the final decree shall contain the names of the partners and all consequences shall follow as if the suit has been against the partners individually.
- Also the partners will appear individually in their own names in all court proceedings.
- Similarly, a suit may also be instituted by or against any person or any Hindu, Undivided family, carrying on any business in a name other than his own name, in the same manner as against a partnership firm.
When two or more persons are surd in the name of the firm and any of them dies, during the pendency of the suit or before institution of the suit then it is not necessary to make his legal representative a party to the suit.
However, the legal representative can make an application, to be made a party and can also enforce any claim against the surviving partners.
- A partner served summons can appear in the court under protest that he was not a partner of the firm when the cause of action accrued and he can apply to the court for determination of such a question any time before the date of hearing and final disposal of the suit.
Suits By Or Against Trustees, Executors and Administrators.
In cases where a suit has been instituted regarding a property between persons beneficially interested in the property and some third party, and the property, concerned is vested in a trustee, executor or administrator, then the persons, beneficially interested in the property shall be represented by the trustee/executor/administrator and the persons interested may not be made parties to the suit.
In case there are more than one trustee / administrator or executors to a property then in case a suit has been filed against one, others shall also be made parties to it. However, those executors who are unable to prove their testator's will or who are outside India are not required to be made parties.
Suits By or Against Minors And Persons of Unsound Mind
- Since a Minor is not capable of entering into a contract, even suit, which is instituted by him, will be filed in his name by his "next Friend", i.e. any other person who has attained majority in some way.
- Such " Friend" should be closely related to the minor so as to bonafidely ascertain the interests of the minor, for instance father, mother, brother, sister etc, or guardian. He does not become a party to the suit but merely represents minor's interest.
- To avoid any discourage vexatious--- litigation by such person, the code provides that, the courts can order the next friend to give security for payment of all the costs incurred or likely to be incurred by the defendant.
- Any person can be appointed, as the " Friend" or guardian of the minor as long as he is of sound mind, has attained majority, has no interests adverse to that of the minor's and he is not defendant or plaintiff in the suit.
- Where there is neither any guardian appointed by a competent Authority, nor any other person fit and willing to act as a guardian for the suit, the Court can appoint any of its officers as a guardian to the suit.
- The court may direct the costs incurred by such officer in his capacity as guardian to be borne by:
- Any of/or all parties to the suit, or
- Out of property of the minor, or
Out of Any fund in the court in which minor, is interested.
A " Friend" is not allowed to enter into any agreement/compromise on the minor's behalf, which may be in reference to the particular suit unless the court permits him to do so.
A "next friend" may retire but not before, he first recommends another person to take his place and gives security for all the costs that have already been incurred in the suit.
ON ATTAINING MAJORITY:
On attaining majority, it shall be at the option of the minor plaintiff whether to proceed with the suit or opt out.
In case he opts to proceed with the suit, he will have to make an application for discharge of " Friend", and permission to proceed on own name.
In case he opts out, he can apply for an order to dismiss the suit/application on making payment of costs incurred by the opposite party or which has been paid by his next friend.
Suits By/Against Persons of Unsound Mind
Similar provisions and rules apply to the persons of unsound mind as those which apply to minors, whether a person develops a mental illness/infirmity during the pendency of suit or before it.
Suits Relaing to Matters Concerning The Family
The kinds of suits relating to family are:-
- A matrimonial suit claiming any matrimonial relief including the declaration of validity of a marriage or matrimonial status of any person.
- A suit claiming a declaration of legitimacy of any person.
- A suit relating to custody/guardianship of a minor/any person of family under a disability.
- A suit for maintenance
- A suit for declaring validity or effect of an adoption
- A suit for relating to wills, intestate and succession
A suit relating to any matter concerning family in respect of which the parties are subject to their personal law.
In all such cases, it shall be first the duty of court to make an endeavor to settle such types of suits, to which this order applies. (O32A R3)
"Family" for such suits shall include the following:
- A man and his wife living together plus any child or children born of them or either of them.
- A man not having a wife or not living with his wife, maintaining any child or children, born of him or otherwise.
- A woman and have husband/not living with her husband, maintain any child/children being born of her or otherwise.
- A man or woman living with his/her brother, ancestor or any close relative, related to him/her by blood.
- Any combination of one or more of the above.
Summary Procedure. (Suit Relating To Bills of Exchange, Hundis, Promissory Notes Etc.)
- The important feature of "summary suit", is that, here the Defendant is not allowed to defend the suit, unless he takes the permission from court.
- Defendant is allowed to defend himself only if according to the affidavit filed by him, it is must for the plaintiff to prove charges against him.
If by affidavit by Defendant, it appears that he has no defense, then court will decline him the permission and pass necessary orders in favor of plaintiff.
- Summary procedure applies to following kinds of suits:-
- Suits upon bills of Exchanges, hundies or promissory notes
- Any suit filed by the plaintiff for recovery of a debt/money payable by the defendant according to a written contract, or
- In case of an enactment wherein the amount to be recovered is a fixed amount of money , or a debt other than a penalty, or
A guarantee, where the claim against the principal is in respect of a debt or for money only.
The object behind provision of summary procedure was to ensure a speedy trial for recovery of money in cases where the defendant has no defence and thus any unreasonable delay sought to be caused is eliminated.
How is Summary Suit Instituted
- A summary suit is instituted by presenting a plaint in the court containing the following specification;
- It must mention that the suit is filed under summary procedure and below the title of the suit it should be inscribed "Under Order XXXVII of code of Civil Procedure, 1908".
It must state that no relief, which does not fall within the ambit of this rule, has been claimed.
Then the summons of the suit are to be issued to the defendant, which should be in prescribed from no. 4, accompanied with a copy of plaint and Annexures.
When the defendant appears, he is required to enter his appearance within 10 days of receipt of summons. On default of his appearance it is assumed that he has admitted the allegations made in the plaint and the plaintiff gets entitled to a final order granting him the sum as mentioned in the plaint alongwith interest at the specified date and costs if the Court thinks it appropriate. (Rule 2)
Where the defendant enters an appearance, the plaintiff is required to serve on him the summons for judgement in Form no. "4A) accompanied with an affidavit verifying the cause of action and the amount which is claimed in the plaint, and a statement to the effect that there is no defense to the suit.
Then, the defendant may apply for leave to defend the suit within 10 days from the date of service of summons, disclosing by way of an affidavit, such facts which he believes to be sufficient to entitle him of the right to defend himself.
The Court shall not refuse permission to the defendant to defend the suit unless it believes that the disclosure by the defendant does not show that he has any substantial defense to raise or that it is frivolous.
Also, where the defendant admits part of the amount claimed by the plaintiff, then the court shall permit the defendant to defend only, when such admitted amount is deposited by the defendant in the court.
The court may also require the plaintiff or the Defendant to deposit some security amount by way of costs, depending on the facts, i.e. to ensure the Bonafide of plaintiff or Defendant.