Before Sub-ordinate Court
CHAPTER II
INSTITUTION OF SUITS
Presentation, Examination and Registration etc. of Plaints
7. A plaint, along with a copy thereof for the purpose of drawing up of a decree at the relevant stage, may be presented at any time during the Court hours to the Clerk of the Court or to such officer as the Court appoints in this behalf under Order IV, rule 1, Civil Procedure Code, or in the absence of such officer, to the Judge himself. Immediately after it is presented, the date of presentation shall be endorsed thereon [and an acknowledgment thereof shall be given to the party or Advocate presenting it].
Note 1- If a plaint is presented beyond Court hours, it will be in the discretion of the Judge to accept it or not.
Note 2- The officer receiving the plaint is forbidden to refuse to receive plaints, applications, etc., presented to him, on the ground that he is not able, at that time, to check them.
8. The next step is the examination of the plaint in order to determine whether it should be-
(a) admitted ; or
(b) rejected (Order VII, rule 11); or
(c) returned for presentation to the proper Court.
( Order Vii, rule 10); or after strictly following the procedure envisaged in new Rule 10-A, Order VII of Civil Procedure Code, as amended by Act, 104 of 1976.
(d) returned for amendment on the ground that it is not framed as required by law. This examination should be particularly directed to ascertaining-
(i) Whether the forms provided in Appendix ‘A’ of the Code are followed as far as is reasonably possible (Order VI, rule 3);
(ii) Whether names and addresses of parties are properly described in title;
(iii) Whether the plaint is properly signed (Order VI, rule 14);
(iv) Whether it is duly verified (Order VI, rule 15);
(v) Whether it complies with the requirements of Order VII, rules 2, 4 and 6;
(vi) Whether it is properly valued and stamped ;
(vii) Whether a certified copy of extract of Record of Rights is produced or not when the suit is in respect of agricultural land; or whether the property extract of City Survey is produced or not when the suit is in respect of immovable property other than agricultural lands ;
(viii) Whether the provisions of Order II, rules 4 and 5 are infringed ;
(ix) Whether the necessary court fee stamps or the necessary postal charges for the service of the summons on the defendant have been affixed to it;
(x) Whether the document or documents on which the plaintiff sues or the documents in his possession or powers are produced along with the plaint; and with a proper list thereof ;
(xi) Whether the certificate required by the Pension Act, XXIII of 1871, is produced in suits to which that Act appears to apply;
(xii) Whether the grounds disclosing how the suit claim is within limitation are pleaded properly;
(xiii) Whether it is indicated how the Court has jurisdiction;
(xiv) Whether the provisions of rules 2 and 4 , Order III as to the production of a power of attorney and Vakalatanama with the plaint are complied with or not;
(xv) Whether the plaintiff has filed with the plaint a memo in writing giving an address at which service of notice or summons or other process may be made on him, (Order VI, Rule 14-A);
(xvi) Whether a certificate of the Charity Commissioner is filed or not in a suit filed under the Bombay Public Trusts Act, as required by section 51(1) of that Act;
(xvii) Whether the Charity Commissioner is impleaded as a party to the suit filed under the Bombay Public Trusts Act;
(xviii) Whether the plaint by or against the Central Government has been signed and verified by the person who is acquainted with the facts of the case and who has been appointed as the Officer specified in the schedule (reproduced at the end of Chapter II) annexed to the Government Notification No. SRO. 351, dated the 25th January 1958, under Rule 1, Order XXVII of the First Schedule of the Code of Civil Procedure, 1908, as amended upto 20th September 1969.
(xix) Whether the provisions of Rule (2) of Order XXXVII Civil Procedure Code are fulfilled, if the Plaintiff desires to proceed under the said order.
9. While examining the plaint, it is also necessary to (a) verify the list of documents produced along with the plaint; (b) ascertain the correctness of the concise statements, if any, Order VII, rule 9); (c) whether a copy of the plaint has been filed for the purpose of drawing up of a decree at the relevant stage; (d) check whether as many copies of the plaint or concise statements on plain paper as there are defendants have been furnished (Order VII, rule 9); (e) compare with the original any copy of account book produced under Order VII, rule 17 and mark the relevant entries therein; (f) get a true copy of the entry together with its translation either in English or in the language of the Court, supported by an affidavit of the person who translated it where such entry is in a language other than English or the language of the Court ; and (g) check whether the plaintiff has paid the requisite fee for the service of summons on the defendants, (Order VII, rule 9).
The officer should also see that for every Indian date mentioned in the plaint, the corresponding date according to the Gregorian Calendar has been given.
10. If the officer examining the plaint finds that it complies with all the requirements and is correct in all respects, he should make the endorsement on the plaint–” Examined, and ordered to be registered” [after giving stamp number thereto] with the date and his signature. If he thinks that the plaint should be returned for amendment or for presentation to the proper Court, or be rejected under Order VII, rule 11, he should refer the matter to the Judge for order. He shall examine the plaint as early as possible and after completing the examination, obtain first orders of the Court on the plaint, within seven days from the date of its presentation. Specific orders of the Judge should be obtained in respect of Plaints, the examination of which cannot be completed, for any reason, within the above time.
As regards the Linked Courts a clerk should be sent to the Station where the Judge sits on deputation for obtaining the first orders on the plaints within the stipulated time mentioned above. For this purpose, the Clerk of the court or the Nazir should not be sent but only the concerned clerk should be sent.
11. Where, upon examination, the plaint is found to be correct and in order, it should be entered in one of the four Registers of Suits according to the category to which it belongs. Four types of registers should be maintained, viz., (i) Regular Suits; (ii) Small Cause Suits; (iii) Special Suits ; and (iv) Summary Suits.
Note – Where the Suit is initially numbered in one category but changes its category subsequently on account of the powers conferred upon a particular Judge, who is to try the suit, the category be changed accordingly.
12. After examination and registration, the plaint should be placed before the Judge for orders as to the issue of summons or otherwise. It will then be for the judge to deal with the matter.
When the plaint is found to be defective in any material particular, or not to comply substantially with the requirements of Order VI, it would be competent to the Judge to direct that the necessary amendment should be made.
13. It is desirable that the particulars of only such suits, wherein the plaints are admitted, should be entered in the register of Suits and numbered according to the order in which the plaints are admitted (Order IV, rule 2). However, a plaint may be registered even before it is returned for amendment. When it is presented after amendment, the date of its re-presentation should be noted on the plaint and in the Register.
14. Where the dismissal or abatement of a suit, or an ex-parte decree is set aside, the plaint should not be re-registered but proceedings should continue under the original number of the plaint in the Register of Suits, after taking a note of the order of the Court in that Register, and the number of the miscellaneous application or the proceeding in which the order was passed as also of the date of that order.
15. Attention is invited to Rules 10 and 10-A, Order VII of the Code of Civil Procedure, 1908, as amended by Act No. 104 of 1976, according to which the Court shall return the plaint to the plaintiff for presentation to the proper Court after following the detailed procedure laid down particularly in new Rule 10-A. The Courts should strictly follow the said procedure in cases where they come to the conclusion that the plaint should be returned for being presented to the Court in which the suit should have been instituted.
A copy of the Judge’s reasons for returning it should be retained and filed. A separate file of such copies should be maintained.
16. Rejected plaints should be kept together with the orders of rejection and the reasons for the same, and any evidence which may have been taken. A register of rejected plaints in the form No.6 prescribed for the register of rejected plaint at page 88 of Vol. II of this Manual should be kept in each Court. The entries in it should be numbered in each year according to the order in which the plaints are rejected.
17. The plaintiff shall state in the plaint or in a memorandum annexed thereto the value of the subject matter of the suit, as required by rule 1(i) of Order VII and also how and under what provision the valuation has been arrived at. Where it is not clear how the valuation is arrived at, the officer examining the plaint should place the matter before the Judge for orders.
18. Where the subject-matter of the suit is immovable property in a City in which a City Survey has been completed or in a village where a Grampanchayat is established, and the numbering of the houses and open spaces in the jurisdiction of the said Panchayat has been made, it should also be seen that the City Survey Numbers or Grampanchayat numbers have been properly specified in the plaint (Order VII, rule 3).
19. In the plaint, the names of the parties should be shown in consecutive numbers, written one below the other. These numbers should not be changed; the representatives of a party, who are brought on record after the institution of the suit, should be shown by sub-numbers. Where a party whose name is entered in the Register of Suits dies, the necessary correction should be made in that Register.
20. In many Courts, the provisions of rules 14(2) and 18 of Order VII are not strictly followed. The attention of both Judges and lawyers is, therefore, specially directed to those provisions with a view to their strict compliance.
21. The lists, copies and statements referred to in Order VII rules 9 and 14 must be signed, if found to be correct, by the Clerk of the Court. It is also desirable that any copy produced as required by rule 14 of Order VII, but not covered by rule 17 of that Order, should be compared, and if found to be correct, signed by the Clerk of the Court. If the list or copy is not correct, it should not be signed but returned for correction. All corrections erasures and interlineations should be initialled while signing the list or copy, as the case may be.
22. Every pleading, application, affidavit and other legal document presented to a Civil Court shall be signed by the lawyer or person presenting it or shall bear an endorsement at the end giving the name of the lawyer or other person who has drafted it.
23. When a document produced with the plaint appears to be defaced, torn or in any way damaged, or where its condition or appearance requires special notice, a note of such condition or appearance should be made on the list of documents and should be verified and initialled, if it is found correct, by the officer examining the plaint. In such cases, a copy of such defaced or damaged document or of document which is illegible should be got produced from the plaintiff for use in Court so that the damaged document may not further deteriorate, or difficulties may not be experienced in reading it.
24. Interlineations, erasures or corrections in a plaint should be initialled by the party or lawyer presenting or tendering the plaint and by the officer of the Court to whom it is presented.
25. The form for register of suits is given in Schedule I, Appendix H at serial No. 14, Civil Procedure Code. In column 9 of the Register of Suits relating to particulars, it will be sufficient to note only the nature of the suit, and the relief or reliefs prayed for in the plaint.
26. Certain forms which may be used by parties as an authority for appearance, a general power of attorney, an appointment of a lawyer, an authority to receive notices etc., are given as forms Nos, 1,2,3,4, and 5 pertaining to this Chapter in Volume II. To understand their value and use, the provisions of Order III should be read.
27. The provisions of section 148-A of the Code of Civil Procedure and the Rules framed by the High Court thereunder, i.e. Order XLI, should be borne in mind while considering applications for interim relief. Every caveat under section 148-A of the Code of Civil Procedure should be in the prescribed form and signed by the Caveator or his Advocate. It is to be presented by the Caveator or his Advocate to the Court or to the officer authorised to receive the caveats. The caveat is required to be registered in the Caveat Register. Every application for interim relief or any relief is to be supported by statement on oath of an applicant stating that no notice under section 148-A is received or, if received, the applicant has furnished the copies of the application together with the copies of the papers or documents which he has furnished to the Caveator. The Court, for special reasons to be recorded in writing, can grant interim relief without serving the Caveator, if, in the opinion of the Court, the object of granting interim relief on the application would be defeated by delay.
Roznama of Proceedings
28. There should be diary or index of proceedings called the Roznama, a example of which is appended as Form No. 7. The following general instructions are issued for the maintenance of the Roznama :-
(i) The Roznama should clearly show the course of a suit or case from the beginning to the end in chronological order. It should show in a concise from the progress of the suit or proceeding from day to day. The reasons for every adjournment shall also be stated. The Roznama should be a faithful, complete and concise history of the case and of all proceedings taken in it. It should contain a correct list and description of the exhibits, the date of the delivery of the judgment, of the signing of the decree and of any application for review of judgment, for amendment of the decree or for final decree. It should show in chronological order all proceedings subsequent to the passing of a preliminary decree, if any, and also contain a note of other proceedings, such as Commissioner’s Report, if any.
(ii) An entry should be made in the Roznama, stating whether all witnesses summoned or present have been examined and if any such witness has not been examined, the reason for not doing so.
(iii) The Roznama must be kept from day to day as an original document by the Bench Clerk or the clerk on duty and must always remain in file ‘B’. Entries other than those made at the time of institution of the suit or proceeding shall normally be signed by the Judge.
(iv) Every document admitted in evidence and recorded should be mentioned in the Rozmana in chronological order. The description of the document and the date of the document according to the Gregorian Calendar should also be mentioned in the Roznama.
(v) At the end of the Roznama of each case, the Bench Clerk concerned should make a note that all the Court-fee stamps have been punched and should sign the note.
(vi) The name of the presiding Judge should be written in the Roznama when a case is filed, and when it is taken up by another Judge his name should also be entered.
(vii) The notice prescribed by rule 1 of Order XX where Judgment is reserved or postponed should be set out in the Roznama.
(viii) The category of the file (A, B, C, D), in which each paper or document mentioned in the Roznama is kept, should be noted in red ink or pencil in the margin of the Roznama against each paper or document.
Similarly, a note as regards the return or loss or destruction of a document should be made in red ink in the Roznama.
(ix) Before transmitting the record to the District Court record room, the Bench Clerk concerned shall verify and making an endorsement mentioning that the documents are properly classified and kept in the appropriate files A, B, C, D.
(x) In every appealable case, the Roznama may be written in English.
29. (1) The Judge should also keep memoranda books in Forms Nos. 8, 9 and 10 prescribed at page 93 of this Manual, Volume II, in accordance with the following instructions :-
(i) Form No.8 – This form is to be kept by all District Judges (including Joint and Assistant Judges). It should also be used by the Civil Judges (Senior Division), invested with Appellate Powers, when they hear appeals or revisions.
(ii) Form No.9 – This form is to be kept by all Judges doing Original Civil work, including Small Cause Court Judges. This form should also be used for interlocutory proceedings which take place during the progress of the suit, for example, the appointment of a guardian.
(iii) Form No. 10 – Civil Judges and Small Cause Court Judges should keep a separate memorandum book in Form No. 10 for darkhasts and miscellaneous applications for which it is necessary to fix a date.
(2) (i) Every case entered in any memorandum book should, if the case has on the day in question advanced a stage, be then and there marked with the mark . If the case is taken up simply to be adjourned, the mark X should be made against it. If the case is taken up decided, a line should be drawn through the entry.
(ii) Every suit and proceeding should be entered by its number and year.
(iii) The object of these memoranda books is two-fold-
(a) to show the presiding Judge what work is fixed for any particular day; and
(b) to show an inspecting authority what work was done on any particular day.
(iv) From No. 8 should be kept in English. Forms Nos. 9 and 10 should be kept in the regional language, unless the presiding Judge prefers that they should be kept in English.
(v) the Presiding Officer should himself fix the adjourned date in every case and should make a note thereof in his own hand on the daily Board as well as in the Memorandum Book (Form No.9), before proceeding to take up the next case.