Recovery Suit.

As per Order IV Rule 1 of Code of Civil Procedure, a suit is instituted by presentation of a plant and is in duplicate. The plaint should contain all relevant facts necessary for final determination of the dispute between the parties. Every pleading should contain only a statement in a concise with material fats. Pleading are not to contain evidence. Order VIII, rules 1 to 8 of CPC has particulars to be contained in a Suit.

 

 

Particulars to be contained in a Plaint:


(a) Name of the court in which the suit is brought


(b) Name, Description and Place of residence of the Plaintiff


(c) Name, Description and Place of residence of the defendant, so far as they are ascertained


(d) Where the plaint or defendant is a minor or person of unsound mind, a statement to that effect


(e) Facts constituting the cause of action and where it arose


(f) Facts showing that the Court has jurisdiction


(g) Relief which the plaintiff claims


(h) Where the Plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished


(i) Value of subject-matter of the suit for the purposes of jurisdiction and the Court fees, so far as the case admits.

 

Plaintiff and Defendant
Plaintiff is the person who files a suit. Defendant is the person against whom a Suit is filed. As per Section 15 of Code of Civil Procedure, every suit is to be instituted in the court of the lowest grade competent to try it.

 


Who can join as Party to the Suit
As per Order I, Rules 1 and 3 of CPC all persons may be joined in one suit as Plaintiff where:


(a) Any right to relief exists in them (or against them in case of defendants) jointly or severally or in the alternative, but the same must be in respect of or arise out of some act or transaction or series of acts or transactions.


(b) Any common question of law or fact would arise, if such person brought separate suits by them or against them in case of Defendants.


However, as per Order I, Rules 2 and 4 the Court is empowered to order for separate trials where it is found that joining of one or more plaintiffs or defendants may delay the trial of the suit.


Who is a Necessary Party in a Suit
A necessary party is one without whom no order can be made effectively.


Who is a Proper Party in a Suit
A proper party is one in whose absence an effective order can be made, but whose presence is necessary for a complete and final decision on the question involved in proceeding.


As per order I, Rule 7, where it is not clear as to against whom the suit would lie, Plaintiff may join two or more Defendants and the Court would determine the question as to which of the defendants is liable.


Suit in Representative Capacity
Where there are many persons having same interest in one suit, only one of them or more may sue on behalf of or for the benefit of all others so interested. Permission of the court would be required to sue in a representative capacity. Similarly where there are many persons having same interest in the suit, Court may permit any one or more of such persons may defend the suit, on behalf of or for the benefit of all others so interested. As per Order I, Rule 8 the Court may even of its own pass such an order.


Total claim should be put forth in the Suit
A Plaint must include entire claim as due during the days of institution of the Suit. As per Order II, Rule 2 of CPC, once the Plaintiff omits to sue for or intentionally relinquish any portion of claim, the Plaintiff cannot afterwards be allowed to institute suit for the claim omitted or relinquished. This helps to settle the dispute between parties once for all and prevents further litigation.


As per Order II, Rule 3, 6 there is a provision to unite several causes of action in one suit. For that firstly, those causes of action must arise from the same act or wrong or transaction and Secondly, common questions of fact or law must be involved in such disputes.


If the defendant, has any objection to the mis - joinder of any cause of action, he has to take such an objection at the earliest. Otherwise, the Court shall deem such an objection to have been waived or given up.


The appearance can be made by the party in person, or by recognized agent or by a pleader. However, where law or Court has required personal appearance then the party is required to appear in person. Similarly, where an application is to be filed, same may be filed by the party, or by recognized agent or by pleader. But where law or court requires that same be filed by the party, same must be filed by the party.


Who are Recognised Agents
As per Rule 2 the recognized agents of parties by whom such appearances applications and acts may be made or done are:-


(a) Persons holding power of attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

(b) Persons carrying on trade or business for and in the name of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts.

 

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