Code of Civil Procedure, 1908. Act no. V of 1908 [21st March 1908]




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ORDER VII


PLAINT

1. The plaint shall contain the following particulars:-

a) the name of the Court in which the suit is brought;
b) the name, description and place of residence of the plaintiff;
c) the name, description and place of residence of the defendant, so far as they can be ascertained;
d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;
e) the facts constituting the cause of action and when it arose;
f) the facts showing that the Court has jurisdiction;
g) the 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; and
i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees so far as the case admits.

2. Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed;

But where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, the plaint shall state approximately the amount sued for.

3. Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers.

4. Where the plaintiff sues in a representative character the plaint shall show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps(if any) necessary to enable him to institute a suit concerning it.

5. The plaint shall show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiff's demand.

6. Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed.

7. Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.

8. Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds they shall be stated as far as may be separately and distinctly.

9. The plaintiff shall endorse on the plaint, or annex thereto, a list of the documents (if any) which he has produced along with it.

1(A) [The plaintiff shall present with his plaint -
a) As many copies on plain paper of the plaint as there are defendants, plus two extra copies, unless the Court, by reason of the length of the plaint or the number of the defendants, or for any other sufficient reason, permits him to present a like number of concise statements of the nature of the claim made, or of the relief claimed in the suit, in which case he shall present such statements; and
b) Draft forms of summons and fees for service thereof]
2. Where the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, such statements shall show in what capacity the plaintiff or defendant sues or is sued.
3. The plaintiff may, by leave of the Court, amend such statements so as to make them correspond with the plaint.
4. The chief ministerial officer of the Court shall sign such list and copies or statements if, on examination, he finds them to be correct.

10-(1) The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

(2) On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.
11. The plaint shall be rejected in the following cases:-
a) where it does not disclose a cause of action:
b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so:
c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so:
d) where the suit appears from the statement in the plaint to be barred by any law.

12. Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order.

13. The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

Documents relied on in Plaint

14.-(1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
(2) Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.

15. Where any such document is not in the possession or power of the plaintiff, he shall, if possible, state in whose possession or power it is.

16. Where the suit is founded upon a negotiable instrument, and it is proved that the instrument is lost, and an indemnity is given by the plaintiff, to the satisfaction of the Court, against the claims of any other person upon such instrument, the Court may pass such decree as it would have passed if the plaintiff had produced the instrument in Court when the plaint was presented, and had at the same time delivered a copy of the instrument to be filed with the plaint.

17. - (1) Save in so far as is other wise provided by he Bankers' Books Evidence Act, 1891, where the document on which the plaintiff sues is an entry in a shop-book or other account in his possession or power, the plaintiff shall produce the book or account a the time of filing the plaint, together with a copy of the entry on which he relies.

(2) The Court, or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification; and after examining and comparing the copy with the original, shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed.

18 - (1) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the pliant, and which is not produced, or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.


(2) Nothing in this rule applies to documents produced for cross-examination of the defendant's witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory.

19 - (1) Every plaint or original petition shall be accompanied by a proceeding giving an address at which service of notice, summons or other process may be made on the plaintiff or petitioner.

(2) Plaintiffs or petitioners subsequently added shall immediately on being so added file a proceeding of this nature.

(3) The address filed under this rule shall be entered in the Register of suits maintained under Order IV, rule 2.

20. An address for service filed under the preceding rule shall be within the local limits of the District Court within which the suit or petition is filed, or of the District Court within which the party ordinarily resides.

21. Where a plaintiff or petitioner fails to file an address for service, he shall be liable to have his suit dismissed or his petition rejected by the Court suo motto or any party may apply for an order to that effect and the Court may make such order as it thinks just.

22. (1) Where a party is not found at the address given by him for service and no agent or adult male member of his family on whom a notice, summons or other process can be served is present, a copy of the notice, summons or other process shall be fixed to the outer door of the house.

(2) If, on the date fixed, such party is not present, another date shall be fixed and a copy of the notice, summons or other process shall be sent to the said address by registered post, and such service shall be deemed to be as effectual as if the notice, summons or other process had been personally served.

23. Where a party engages a pleader, notices summons or other processes for service on him shall be served in the manner prescribed by Order III, rule 5, unless the Court directs service at the address for service given by the party.

24. A party who desires to change the address for service given by him as aforesaid shall file a verified petition, and the Court may direct the amendment of the record accordingly. Notice of such petition shall be given to such other parties to the suit as the Court may deem it necessary to inform, and may be either served upon the pleaders for such parties or be sent to them by registered post, as the Court thinks fit.

25. Nothing in these rules shall prevent the Court from directing the service of a notice, summons or other process in any other manner, if for any reasons, it thinks fit to do so.

26 - (1) In every suit of the nature referred to in rule 3, Order XXII, the plaint shall be accompanied by a statement giving -

(a) the names and addresses of the persons who, in the event of the death of the plaintiff, may be made a party as his legal representatives;

(b) the name and address of the person who, in the event of the death of the plaintiff, shall intimate such fact to the Court, furnish the Court with the names, particulars and addresses of the legal representatives of the plaintiff and make an application for the legal representatives to be made a party.

(2) A plaintiff may at any time -

(a) file in the Court an amended list, of his presumptive legal representatives;


(b) nominate another person, in the place of the person nominated under clause (b) of sub-rule (1), for the purposes of that clause.

(3) A nomination made under clause (b) of sub-rule (1) shall, unless varied under clause (b) of sub-rule (2), remain in force throughout the pendency of the suit and any proceedings a rising therefrom, including appeal, revision and review.



ORDER VIII

WRITTEN STATEMENT AND SET-OFF

1. The defendant may, and, if so required by the Court, shall at or before the first hearing or within such time as the Court may permit, permit, present a written statement of his defence:

[Provided that the period allowed for filing the written statement shall not ordinarily exceed[thirty] days]

2. The defendant must raise by his pleading all matters, which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.

3. It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

4. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any pay thereof, or else set but how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

5. Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

6.-(1) Where in suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be se-off.

(2)The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgement in respect both of the original claim and of the set-off: but this shall not effect the lien, upon he amount decreed, of any pleader in respect of the costs payable to him under the decree.


(3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off.

Illustrations

(a) A bequeaths Rs.2,000 to B and appoints C his executor and residuary legatee. B dies and D takes out administrations to B's effects. C pays Rs.1,000 as surety for D; then D sues C for the legacy. C cannot set-off the debt of Rs.1,000 against the legacy, for neither C nor D fills the same character with respect to the legacy as they fill with respect to the payment of the Rs.1,000.


(b) A dies intestate and in debt to B, C takes out administration to A's effects and B buys parts of the effects from C. In a suit for the purchase money by C against B, the latter cannot set-off the debt against the price, for C fills two different characters, one as the vendor to B, in which he sues B, and the other as representative to A.
(c) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B's goods and is liable to him in compensation which he claims to set-off. The amount not being ascertained cannot be set-off.
(d) A sues B on a bill of exchange for Rs.500 . B holds a judgment against A for Rs.1,000. The two claims being both definite pecuniary demands may be set-off.
(e) A sues B for compensation on account of trespass. B holds a promissory note for Rs.1,000 from A and claims to set-off that amount against any sum that A may recover in the suit. B may do so for as soon as A recovers both sums as definite pecuniary demands.
(f) A and B sue C for Rs.1,000 . C cannot set-off a debt due to him by A alone.
(g) A sues B and C for Rs.1,000. B cannot set-off a debt due to him alone by A.
(h) A with the partnership firm of B and C Rs.1000. B dies leaving C surviving. A sues C for a debt of Rs.1,500 due in his separate character. C may set-off the debt of Rs.1,000.
7.Where the defendant relies upon several distinct grounds of defence or set-off founded upon separate and distinct facts, they shall be stated, as far as may be separately and distinctly.

8. Any ground of defence which has arisen after the institution of the suit or the presentation of a written statement claiming a set-off may be raised by the defendant or plaintiff, as the case may be in his written statement.

9. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.

10. Where any party from whom a written statement is so required fails to present the same within the time fixed by Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.

[11. - (1) Every party, whether original, added or substituted, who appears in any suit or other proceeding, shall, on or before the date fixed in the summons, notice or other process served on him, file in Court a proceeding stating his address for service.

(2) Such address shall be entered in the Register of suits to be maintained under Order, IV rule 2.

(3) Rules 20, 23, 24 and 25 of Order VII shall apply, so far as may be, to addresses for service filed under this rule.

12.-(1) Where a party fails to file address for service as provided in the preceding rule, he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended.

(2) The Court may pass an order under sub-rule (1) suo motu or on the application of any party.

13 - (1) In every suit of the nature referred to in rule 4, Order XXII, the written statement shall be accompanied by a statement giving -

a) the names and addresses of the persons who, in the event of the death of the defendant, may be made a party as his legal representatives;
b) the name and address of the person, who in the event of the death of the defendant, shall intimate such fact to the Court, furnish the Court with the names, particulars and addresses of the legal representatives of the defendant and make an application for the legal representatives to be made a party.
(2) A defendant may at any time -

a) file in the Court an amended list of his presumptive representatives;


b) nominate another person, in the place of the person nominated under clause (b) of sub-rule (1) for the purposes of that clause.

(3) A nomination made under clause (b) of sub-rule (1) shall, unless varied under clause (b) of sub-rule (2), remain in force throughout the pendency of the suit and any proceedings arising therefrom, including appeal, revision of review.]



ORDER IX

APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE

1. On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future dy fixed by the Court.

2. Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, the Court may make an order that the suit be dismissed:

Provided that no such order shall be made although the summons has not been served upon the defendant, if on the day fixed for him to appear and answer he attends in person or by agent when he is allowed to appear by agent.

3. Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

4. Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his not paying the court-fee and postal charges (if any) required within the time fixed before the issue of the summons, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.

5.- [(1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of three months from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that -

a) he has failed after using his best endeavours to discover the residence of the defendant who has not been served, or


b) such defendant is avoiding service of process, or
c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.
(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

6 - (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then -

(a) if it is proved that the summons was duly served, the Court may proceed ex parte [and pass decree without recording evidence].
(b) If it is not proved that the summons was duly served the Court shall direct a second summons to be issued and served on the defendant;
(c) If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court and shall direct notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.

7. Where the Court has adjourned the hearing of the suit ex parte and the defendant at or before such hearing, appears and assigns good cause for his previous non-appearance, he may upon such terms as the Court directs as to costs or otherwise be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

8. Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

9. - (1) Where a suit is wholly or partly dismissed under rule 8. the plaintiff shall be pecluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit.


(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.
[(3) The provisions of section 5 of the Limitation Act 1908 (IX of 1908), shall apply to applications under sub-rule (1).]

10. Where there are more plaintiffs than one and, one or more of them appear, and the others do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks fit.

11. Where there are more defendants than one and one or more of them appear and the others do not appear the suit shall proceed, and the Court shall a the time of pronouncing judgment make such order as it thinks fit with respect to the defendants who do not appear.

12. Where a plaintiff or defendant who has been ordered to appear in person does not appear in person or show sufficient cause to the satisfaction of the Court for failing so to appear he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively, who do not appear.


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