Editor’s note: Although the Code of Civil Procedure, 1908 (CPC) provides the steps for filing a civil suit, however, one cannot, just by the bare reading of the Code, go about filing a suit since it lacks a lot of practical considerations. This post is in a continuance of Prof. Swamy’s first post titled, “Career Advice for Fresh Law Graduates“. We had previously covered the checklist for filing a case in district and sessions court here.
This post has been contributed by Prof. V Narayana Swamy. He has more than four decades of experience as a lawyer in the High Court of Karnataka. At the same time, he has been actively involved as an academician and has also authored several law books.
The steps for filing a suit summarised hereinbelow avoid the complexity of the bare language of CPC, and offer simplified procedure with regard to both requirement of law and practical considerations. Here are some useful tips that are to be followed and adopted while dealing with civil cases independently.
The junior members of the Bar are deprived of opportunities to get independent cases at the beginning of their career in the profession of Advocacy. Even if you have 2-3 years of experience as an Advocate, you can work out these preliminary steps before starting drafting of the plaint.
– Prof. V Narayana Swamy
1. Study the history of the case
The first step that a lawyer should do in preparation of his case is to study the history of the case. Yes! History (his-story) of client and that of the opponent keeping a large or medium margin for the exaggerated versions made with the selfish end and with an evil eye on the opponent. Many times truth comes out to the knowledge of the lawyer after receiving the copy of the written statement. Therefore lawyers must guard themselves in drafting the plaint or written statement carefully and avoid defamatory or slang or insinuating language in pleading.
2. Prepare the documents
Collect documents from your client; make a note of his case history as he narrates. Interrogate him to clarify any doubt. He might have exaggerated certain facts relating to his opponent as the villain. It is true his opponent is a villain and he is the villain for his opponent. Examine the case history and be satisfied with the bonafide satisfactory proof about the claim to be enforced by filing a civil suit in a competent court.
Find out the jurisdictional court and its location for filing the suit.
3. Drafting of Plaint etc.
- Draft the plaint and read it over to the client and make corrections if any. Scrutinise the documents to be filed along with plaint and make a list and gist as to nature of transaction and parties thereto and their relation or connection to the parties involved in the suit transaction or property.
You may produce the Xerox copies to the court at the first instance and original may be produced at the time of evidence with permission of the Court.
- While drafting a plaint (or written statement, as the case may be) follow the rules of drafting given in the chapters contained in CPC. Prepare other required documents to be filed along with the plaint.
- Remit the Court fees to the Court and enclose the receipt of court fee to the plaint and file the Plaint.
Attend and correct all office objections and in case you need any interim order like a temporary injunction, request the officer to post it before the judge. Argue the case but the Judge may or may not grant the interim order.
- File process fee and the required set of plaint copies for service on the defendants.
- Instruct your client to take the court server with him and get the process served on the defendants.
- In case you are appearing for the defendant file Vakalatnama on the hearing date.
- Take instructions from the defendant, collect documents and prepare the written statement.
The client is the best judge of his case. You are instrumental to help or assist him as an expert in law. You should incorporate the defense as stated by your client to the extent legally possible.
The Court Phase
4. Procedure followed in the Court
- The court would frame issues after completion of pleadings.
- The plaintiff may be required to commence evidence by filing a list of witnesses and list of documents along with documents should be filed in the suit.
Give a copy of witness list and list of documents to the other side and obtain acknowledgement or get the signature on the originals before filing them to court.
The examination-in-chief of witnesses is to be filed in advance by way of affidavit and marking the documents relied upon in support of your client’s case.
- On the day of recording evidence call the witness to the box after swearing on oath show the affidavit of examination-in-chief to witness and get it affirmed then mark the documents.
- You may ask any further questions, if forgotten, to be included in the affidavit.
- The adversary will cross-examine the witness. Same is the procedure for examination of witnesses for the defendant.
Importance of advice from Seniors
If the case does not involve complicated questions and appears to be simple you can proceed on your own.However, if it appears that the case is mixed with confusing facts and relationship between the parties or as to the nature of transactions, then better consult your senior or engage a senior advocate.
By engaging a senior you need not have the apprehension of losing a case, rather, by engaging and assisting a senior you will learn a good lot of things and gain knowledge, which you could not have thought of. Thus, you will have double advantage of earning and learning better knowledge and professional tactics.
Image from here.