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Civil procedure code, 1908 { place of institution of suits }

Where to file a Suit, How to File a suit.

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Civil procedure code, 1908 { place of institution of suits }

  1. 1. 1 Which Court Do I Sue in? / Place of Institution of Suit: Introduction: The suits are filed after looking for geographic division of courts, and to find out an appropriate court of lowest grade in the area, where either the subject matter situates or the cause of action occurred. To find out where to file a suit for recovery of civil rights that has been violated by the defendant, the following steps are to understood and persuaded: 1. Look at the area of (territorial limits) civil court, 2. Look at the area (territory) where the cause of action occurred. 3. Look at the nature of subject matter { movable, immovable, contractual, family etc) 4. Look at the valuation of subject matter. 5. Look for specified court fee Relevant Provisions of Civil Procedure: A) In substantive Part of CPC: Sections, 6, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 24-A, 25. the statutes made it very clear that where to file a suit, or in which court one has to file a suit of civil nature, Part 1 of Civil Procedure Code 1908 , deals with the issue under discussion , with following important areas of filing a suit : CIVIL PROCEDURE CODE , 1908, LL.B. PART III TOPIC: An Introduction to CPC, 26th of Sep,2016 Presented by: SM Zarkoon, Lecturer, B.Sc. LL.B. LL.M. {Criminology & Law of Evidence} University Law College Khojjak Road Quetta. Email: lawyer.21st@yahoo.com Ph.# 081-2843053
  2. 2. 2 a) Could in which suit has to be institution : Section 15 provides that every suit shall be instituted in the Court of lowest grade competent to try it, {Trial Court} In case if a suit is instituted in a Court of Higher Grade such court may return the plaint. It is only discretionary on the part of higher court either to try the suit or to return the plaint for presentation in the court of lowest grade. Section 15 is enacted to merely avoid overcrowding in the higher Court but also for the convenience of the parties and witnesses who may be examined. As a matter of interpretation: it will be seen that forum can be chosen by the parties on their options and all objections regarding choosing the forum is to be determined at the first instance at preliminary stage of a civil trial. {AIR 2004 } EXPLANATION: The trial courts starts from level of District Court and then it is extended to the lowest grade i.e. the civil courts of class-1 , class-2 or class-3, however Section 15 is clearly stating that every suit of civil nature must have to be instituted in a court of lowest grade , but if it is filled in the higher grade court i.e. the District Court presided over by a District Judge, then this matter has to be decided by the parties as raising objection and be heard by the Court, final decision has to be made by the District Judge whether the matter has to be tried by him or has to be sent to lowest court of first instance having an original jurisdiction to deal with that specific matter. b) Suits to be instituted where subject Matter situate : This very section deals with when a subject matter is immovable, and a dispute arise in relevancy to such property, then U/S 16, a suit has to be instituted where such immovable property is situated. Section 16 gives account of institution of suit in in relevancy of immovable property in following conditions. 1. For recovery of immovable property with or without rent or profits. 2. For the partition of immovable property,
  3. 3. 3 3. For foreclosure , sale or redemption in the case of a mortgage or charge upon immovable property, 4. For determination of any other right or interest in immovable property. 5. For compensation of wrong to immovable property. 6. For the recovery of moveable property actually under distraint or attachment. for all of the above , a suit must have to be instituted in a court in whose jurisdiction such property is situated. Application: Section 16 of the Code regulates the institution of suits regarding immovable property. It lays down that the suit shall be instituted in the Court within the local limits of whose jurisdiction the property situate. This provision of Civil procedure recognizes a well- established principle that action against res or property should be brought in the forum where such res is situate. A could within whose territorial jurisdiction the property is not situate has no power to deal with and decide the rights or interest in such property. Immovable Property: Under Section S.3(26) of the General Clauses Act, “ immovable Property” includes: a) Land b) Benefits to arise out of the land c) Things attached to the earth, or permanently fastened to anything attached to the earth. Case law: Land is a sum of total land plus beneifts arising out of the land plus all things attached to or be acquired as a whole and not piecemeal. {PLD 1976 Lah 1233} C) Suits for Immovable Property situate within Jurisdiction of different courts: Section 17 applies only to those cases in which there is on and the same cause of action in respect immovable property situate within the jurisdiction of different courts. In such a case , a suit in any court within the local limits of whose jurisdiction any portion disputed property situates.
  4. 4. 4 d) Place of Institution of suit where local limits of jurisdiction of Courts are uncertain: If the disputed property is situated in area and there is uncertainty about determining jurisdiction of the court. The plaint could be filed in any court grounded on uncertainty of jurisdiction, the court at first instance has satisfy itself with such an uncertainty and after recoding the reasons , may proceed with the case. e) Suits for Compensation of wrongs to person or movables: U/S 19, the option has been given to the plaintiff as to file the suit at his discretionary in the court in whose jurisdiction cause of action occurred or the court in whose jurisdiction the defendant actually resides or carries on business. Case Law: Provisions of S. 19 CPC. Has provided that in suit for compensation of wrong done to plaintiff or to his movable property, within jurisdiction of one Court and the defendant resided or carried on business or personally worked for gain within local limits of jurisdiction of another Court, suit can be instituted at the option of the plaintiff in either of the said Courts. Said Option of the plaintiff does not arise in the case if cause of action arose to plaintiff wholly or in part at MR and defendant was also residing at MR. By transferring case from Court at MD to Court at MR. High Court had not committed any illegality. [2000 MLD 1693 } f) Other suits to be instituted where defendants reside or cause of action rises: S.20 provides that when there is a commercial transaction or a breach of contract in such case the plaint can be instituted at the option of plaintiff as either to file the plaint at the court within whose jurisdiction the breach of contract has committed or the Court in whose jurisdiction the defendant resides or carries on business. This section further explains that the case can even be logged against an authorized agent doing business on behalf of the defendant in the territory or area in which the matter took place.
  5. 5. 5 g) Objection to the Jurisdiction: Any objection as to the Jurisdiction of the Court must have to be raised by the party, at preliminary phase of the trial before framing of issues, if issues once settled and trail phase started any such objection would have less weightage and would give tough time to the litigant having an intention get a relief from court inform of rejection or dismissal of the suit grounded on wont of jurisdiction. Further the provision illustrates that such objection must have to be taken at Trial court, any such objection if once omitted and raised at appellate stage is of no value and shall not be considered. h) Power to Transfer Suits which may be instituted in more than one Court: Proviso of Section. 22 empowers A higher Court to transfer a case , which may be instituted in any one of several courts at the option of the plaint as dominus litis, however the defendant may be apply for transfer of suit form any such court to another court but it will require more substantial grounds that means reliable reasoning fulfilling the prima facie instance of the defendant and a balance of convenience has to be established in this way. Relevant Provisions of CPC: b) In Procedural Part of CPC: Order IV Rule 1, Rule 2. a) Suit to be commenced by Plaint: Rule. 1 of Order IV, prescribes that Every suit must have to be initiated at the instance of plaintiff by filing a Plaint in the appropriate Court of lowest instance. For filling a plaint it is a very essential feature that the plaintiff must have to be an necessary party, a non-necessary party can not file a plaint in the court. A necessary party is the one whose interests or rights have been infringed by action or omission , series of actions or series of omissions , on account of the defendant towards plaintiff.
  6. 6. 6 Requirement for plaint: Plaint is a written complain filed by an aggrieved party or his counsel or by a legal representative or by a recognized agent. Plaint is a written presentation of the case that includes: a) Reason of filing plaint ( Cause of action) b) The Intention of plaintiff ( seeking relief or remedy) Relevant provisions of plaint are prescribed in Order VI and Order VII of civil procedure Code. b) Registration of Suits: Every suit shall be instated by getting it registered into a book kept for the same purpose and the administration of Civil Court are responsible when receive a plaint , must be registered in the prescribed register known as “Register of Civil Suits” The End
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Where to file a Suit, How to File a suit.

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