Institution of Suit under CPC

The institution of suit under CPC is a foundational element of the Indian legal
system, marking the formal commencement of a civil legal action. This process
allows individuals and entities to seek legal redress for disputes in a structured
and orderly manner.

At the heart of the institution of suit is the filing of a “plaint” by the plaintiff,
outlining the facts of the case, the legal grounds for their claim and the relief
they are seeking. Jurisdiction and court fees are crucial considerations,
ensuring that the right court handles the case and that the necessary costs are
covered.

Once the suit is instituted, the legal proceedings take their course, leading to
the court’s judgment or decree. The institution of suit under CPC is a
fundamental step in the pursuit of justice and resolution of civil conflicts in
India’s legal landscape.

Meaning of Institution of Suit

Institution of suit under CPC refers to the formal commencement of a legal
action or civil suit by a plaintiff against a defendant in a court of law. The
institution of suit initiates the legal process by which the plaintiff seeks a legal
remedy, such as a judgment, order or decree, for a particular issue or dispute.

The key components of the institution of suit under CPC typically include:

 Filing a Plaint: The plaintiff starts the process by filing a written statement
known as a “plaint” in the appropriate court. The plaint outlines the facts of
the case, the legal basis for the claim and the relief or remedy sought.
 Court Selection: The plaintiff must choose the correct court with jurisdiction
to hear the case, meaning that the court has the legal authority to handle the
specific type of dispute and is located within the appropriate geographic area.
 Payment of Court Fees: The plaintiff is generally required to pay the
prescribed court fees, which may vary depending on the nature and value of
the suit, as per the Court Fees Act, 1870.
 Service of Summons: After the institution of the suit under CPC the court
issues a summons to notify the defendant of the legal action and require their
appearance in court to respond to the plaintiff’s claims.
 Proceedings: Once the defendant receives the summons and responds, the
legal proceedings unfold, including the presentation of evidence, legal
arguments and ultimately the court’s judgment or decree.
In summary, the institution of suit under CPC is the formal initiation of a civil
legal action, marking the beginning of the legal process to address and
resolve a specific dispute between parties through a court of law.

How Institution of Suit under CPC is Done?

Section 26 and Order IV provide the guidelines for initiating legal proceedings.
Section 26 specifies that every civil suit must begin by presenting a written
statement (called a plaint) in duplicate or as per the rules set out in the Code
of Civil Procedure, to the court or an authorised officer. The facts presented in
the plaint must be supported by an affidavit. To understand this better, we
should also consider Order IV, VI and VII of the first schedule.

Rule 1 of Order IV should be considered alongside Section 26 to expand on

the legal requirements outlined in the section. This rule states that a civil suit is
considered officially started only when a duplicate of the plaint is presented
either directly to the court or to a designated officer. Furthermore, the said
plaint must adhere to the regulations outlined in Order VI and VII.

Section 80 of the CPC mandates that, in cases where the defendant is the
government or a public officer, a legal notice must be delivered before filing a
civil suit. However, it’s important to note that not all civil suits require such a
notice. In some situations, lawyers send legal notices before initiating civil
cases to inform the defendant that they are making a final effort to resolve the
dispute. This is typically done as a precautionary measure.

The procedural steps for institution of a suit under CPC include:

 Drafting a plaint (a formal written statement outlining the case)

 Selecting the appropriate court for filing the civil suit (the place of suing)
 Presenting the plaint to the court or a designated officer.

Scope and Applicability of Section 26

In a civil civil suit, the responsibility for providing evidence lies with the
plaintiff. The plaintiff must demonstrate that the allegations against the
defendant are true and that the defendant is legally responsible for any
damages claimed. To initiate a civil suit, the plaintiff’s plaint should include all
the necessary details and supporting documentation.
 Additionally, the prescribed court expenses, which typically represent a small
portion of the total claim or suit value, should be submitted along with the
plaint. The specific court fees and stamp duty amounts are determined by the
Court Fees Act, 1870 and the Stamp Act, 1899, based on the type of suit being
filed.

Section 9 of the CPC deals with court jurisdiction to hear all civil suits, with
exceptions only when the law explicitly or implicitly prohibits it.

Formalities After the Institution of Suit under CPC

The institution of suit under CPC before a court or its designated officer is
detailed in Order IV, Rules 1 and 2.

Section 27 pertains to the issuance of summons to the defendant or

defendants. A summons, calling upon the defendant to respond to the claim,
is dispatched within thirty days after the suit is filed and it is served as per the
specified procedure.

Section 28 deals with serving summons to defendants residing in other states.

When a defendant resides in a different state, the summons must be
forwarded to the court in that state, following its established rules. The
receiving court acts as if it had issued the summons itself and sends it back,
along with a record of its actions, to the court that initially issued the
summons.

If the summons sent to another state is in a language different from the

court’s official language, a translation of the record is required:

 If the court issued the summons in Hindi, the translation must also be in Hindi.
 If the record is in a language other than Hindi or English, the translation must
be provided in Hindi or English and delivered with the record.

Section 29 addresses the service of foreign summons. Summons and other

legal documents can be presented by:

 Any Civil or Revenue Court established in India, even if the CPC doesn’t apply.
 Any Civil or Revenue Court established or maintained by the Central
Government outside of India.
 Any other Civil or Revenue Court outside of India to which the Central
Government has extended the application of these provisions through an
official notification in the Gazette. These documents can be delivered to courts
within the areas covered by this Code and served as if they were issued by
those local courts.
Section 31 extends the principles of Sections 27, 28 and 29 to cover witness
summonses. This means that the procedures for issuing and serving
summonses for producing documents, materials or providing testimony are
governed by these sections.

Conclusion
The institution of suit under CPC is the formal initiation of a civil legal action in
a court of law. It involves the filing of a plaint by the plaintiff, specifying the
facts and legal basis of the claim and the relief sought. Choosing the
appropriate court with jurisdiction, paying the required court fees and serving
a summons on the defendant are essential steps in the process.

Once the suit is instituted in CPC, legal proceedings unfold, including the
presentation of evidence and legal arguments. The court ultimately issues a
judgment or decree to resolve the dispute. The institution of suit is a critical
step in seeking legal remedies and addressing civil disputes through the
judicial system.

At the time of institution of any suit, which under the Civil

Procedure Code 1908 (CPC) is through a plaint under Section 26
read with Order 7 Rule 1, the Court will issue summons to the
defendant to: first, provide the defendant with sufficient notice that
a suit has been filed against them, and second, to provide the
defendant with an opportunity to appear in court and defend their
position in respect of the claims made in the plaint.

Scope and applicability of Section 26

In a civil lawsuit, the burden of proof lies on the plaintiff. The plaintiff must
establish that the accusations against the defendant are true and the
defendant is liable for damages. A plaint must include all required
information and supporting documentation. Additionally, the necessary court
expenses should be included with the plaint. A small fraction of the overall
claim or suit value is used as court costs. The Court Fees Act, 1870, and
the Stamp Act, 1899 specify the required amounts of court fees and stamp
duty depending on the type of suit.
Formalities after the institution of a suit
The beginning and institution of the suit before a court or such officer
appointed in this regard are outlined in Order IV Rules 1 and 2.

The issue of summons to the defendant or defendants is covered

under Section 27. A summons to appear and answer the claim is sent to the
defendant on the day that is not more than thirty days after the suit has
been instituted, and it is served in the manner specified.

Section 28 deals with serving summons to defendants who are residents of

other states. A summons must be sent to the court in another state in
compliance with the rules in force in that state. The court to which such a
summons is conveyed must act as though it has issued the summons itself.
The court must return the summons, along with a record of its proceedings,
to the court that issued the summons.

When the summons sent for service in another state is in a language other
than the language of the record, a translation of the record must be
supplied:

1. The translation must be provided in Hindi if the court issues the

summons in that language;
2. Where the record is in a language other than Hindi or English, the
translation must be given in Hindi or English and delivered with the
record.
Section 29 deals with serving the foreign summons. Summons and other
legal documents must be produced by:

1. Any Civil or Revenue Court established in India, regardless of where

the CPC does not apply;
2. Any Civil or Revenue Court established or maintained by the Central
Government outside of India, or
3. Any other Civil or Revenue Court outside of India to which the
Central Government has declared the provisions of this section to
apply by notification in the Official Gazette can be delivered to the
Courts in the regions covered by this Code and served as if they
were summons issued by those courts.
Section 31 addresses witness summons. The provisions of Sections 27, 28,
and 29 shall apply to any summons to produce documents or other material
objects or to provide testimony.

Conclusion
Every right has a remedy, or “Ubi jus, ibi remedium,” which is one of the
fundamental principles of the legal system. A plaintiff may file a civil lawsuit
to obtain compensation for losses the defendant has caused. A plaint must
include all relevant information and serves as the first step in the
documentary process of the institution of civil litigation. However, the onus of
proof is on the plaintiff as the plaintiff files the suit and states the facts and
legal grounds. The plaintiff must convince the court and support every
allegation made against the defendant by presenting the true facts and
reasonable grounds for the institution of the suit.

Amendment of Proceeding

The Court may, at any stage of the proceedings, allow either party to alter or amend its
pleadings in such manner and on such terms as may be just (Rule 17 of Order VI of
CPC, 1908), and all such amendments shall be made when it is necessary for
determination of real question in controversy or is just and proper or is necessary in
the interest of justice.

Razia Begum vs Shabjadi Anwar Begum, AIR 1958 SC 886

This case laid down the principles for exercising power under Section 26 of the
CPC. It clarified the scope and limitations of the court’s jurisdiction in the institution of
suits4.
Vishwanath Satwaji Gaikwad vs Laxman s/o Abaji Kavale & Others, AIR 2000
Bom 307
This case elaborated on the scope of Order IX, Rule 5, particularly concerning the
dismissal of suits and the remedy available to the plaintiff5.

IMPORTANT CASE LAWS

1. Issuance of Summons
Auto Cars v. Trimurti Cargo Movers (P) Ltd., (2018) 15 SCC 166 : Section 27
of the Code deals with issuance of the summons to the defendants. It says that
where a suit has been instituted, summons may be issued to the defendant to
appear and answer the claim and may be served in the “manner prescribed on
such day” not beyond thirty days from the date of the institution of the suit.

2. Power to order discovery

Naren Advertising and Marketing v. State Bank of Saurashtra, AIR 2001 Guj
222: Section 30 empowers the Court to issue summons to witnesses to person
whose attendance is required either to give evidence or to produce documents or
such other objects or order any fact to be proved by affidavit.

3. Penalty for default of summons

Sangram Singh v. Election Tribunal, AIR 1955 SC 425: There is no penalty for
a refusal or an omission to appear in response to a summons under Section 27. It
is true certain consequences will follow if a defendant does not appear and,
popularly speaking, those consequences may be regarded as the penalty for non-
appearance, but they are not penalties in the true sense of the term. They are not
punishments which the court is authorised to administer for disregard of its orders.
The antithesis that Section 32 draws between Section 27 and Section 30 is that an
omission to appear in response to a summons under Section 27 carries no penalty
in the strict sense, while disregard of a summons under Section 30 may entail
punishment. The spirit of this distinction must be carried over to the First
Schedule.

Section 30 CPC Description

Subject to such conditions and limitations as may be prescribed,
the Court may, at any time, either of its own motion or on the
application of any party,-

(a) make such Orders as may be necessary or reasonable in all

matters relating to the delivery and answering of interrogatories,
the admission of documents and facts, and the discovery,
inspection, production, impounding and return of documents or
other material objects producible as evidence;

(b) issue summonses to persons whose attendance is required

either to give evidence or to produce documents or such other
objects as aforesaid;

(c) Order any fact to be proved by affidavit.

A ‘suit’ is a formal legal process initiated by filing a complaint to enforce civil
or substantive rights against either the government or an individual. When a
‘suit’ is concluded, it leads to the issuance of a legal judgment or decree.
Without a ‘suit,’ there can be no such judgment.

In the Ethiopian Airlines v. Ganesh Narain Saboo case from 2011, the
Supreme Court explained that the term ‘suit’ is a broad term encompassing all
actions taken by a person to enforce a legal right granted by the law.

In the significant case of Hansraj Gupta & Others v. Dehra Dun-Mussoorie

Electric Tramway Co. Ltd. in 1932, the Privy Council ruled that a civil legal
proceeding begins with the submission of a complaint.

Objective of summons
The following are the objectives of summons:

 It is important to inform a person about any legal action that has

been taken against them.
 It gives an opportunity to the defendant to present his case and side
of the story.
 The basis of summons lies in the maxim “Audi Alteram
Partem”, which means to hear both sides.
 It further helps in following the principles of natural justice and
ensures fair proceedings and trial.
 It helps in ensuring the presence of either a witness or accused or
any other person who is involved directly or indirectly in a suit
before the court.
 To produce the necessary documents.

Essentials of summons
The essentials of a summon are given under Order 5, Rules 1 and 2 of the
code. These are:

 Every summon must be signed by the judge or any other officer

whom he appoints to do so on his behalf.
 It must be sealed properly.
  The court will not issue any summons to the defendant if he has
appeared before the court at the time of the institution of the
plaint.
 After summons are issued, the defendant is required to file written
statements within 30 days. If he fails to do so, he has to provide
reasons, and if the court is satisfied, it can extend the time period to
file written statements to not more than 90 days.
 Another essential element of summons is that every summon must
be accompanied by a copy of the plaint.
 The format of a summons must be according to the prescribed form
given in Appendix B of the First Schedule under the code.

Contents of summons
Rule 5 to Rule 8 of Order 5 under the code gives the content of summons. A
summon must contain:

 Information, whether it is issued for settlement of issues or final

disposal of the suit. According to Rule 5, the court of small causes
can only issue a summons for the final disposal of a suit and nothing
else.
 It must contain the date and day fixed for the appearance of the
defendant, considering the factors like the residence of the
defendant, time, etc., so that he can get a reasonable time and
opportunity to appear before the court.
 It also contains the list of necessary documents that a defendant is
required to produce in court.
 If the summons is issued for final disposal, it must direct the
defendant to produce witnesses on his behalf to support his side.

Appearance of defendant
According to Rule 3, if summons has been issued to the defendant, he may
appear before the court in the following ways:

 He may appear himself in person or,

 Through his pleader, who will answer all the questions on his behalf
or,
 by a pleader along with another person to answer all the questions.
The court, however, has the power to call defendants at any time to appear
personally before the court if there are reasons to do so.

 According to Rule 4 of Order 5, a person will be exempt from

appearing before the court if:
o He does not reside within the local limits of the court’s
jurisdiction or
o He lives in a place that is more than 50 miles or 200 miles
away from the court.

Substituted service
Substituted service means a mode of service of summons that is adopted in
place of ordinary service of summons. There are two modes of substituted
service as given under Rules 17, 19 and 20 of the Order. These are:

 If the defendant or his agent refuses to acknowledge or sign the

receipt of the summons, or if the officer serving the summons
reasonably believes that the defendant is not present at his
residence and will not be found within a reasonable time, and
moreover if there is no agent to receive summons on his behalf, he
may affix the copy of the summons on the door or any conspicuous
part of his house.
o In this case, the serving officer has to make a report
stating the reasons for affixing the summons, the
circumstances, the name and address of the person who
helped him and the witnesses to affixing the summons.
o The court can declare that the summons has been issued if
it is satisfied with the report of the officer.
 If the defendant is deliberately avoiding service and the court has a
reason to believe so, it may affix the summons in some conspicuous
place in the court and house of the defendant where he used to
reside, carry on business or work for somebody.
In the case of Yalllawwa v. Shantavva (1997), the Supreme Court held that
this mode of service of summons is not an ordinary mode and must not be
used normally. It must only be used in exceptional cases and treated as the
last option.

According to Rule 20, if a court orders to advertise the summons in the

newspaper, then it must be done in a local newspaper where the defendant
lived, had a business, or worked. This service is an effective option to serve
summons even if the defendant is not reading the newspaper (Sunil Poddar
v. Union Bank of India, 2008).
Before issuing the summons through this mode of service, the court must
give the defendant a reasonable time to appear before the court. In another
case, State of Jammu and Kashmir v. Haji Wali Mohammad (1972), the
Supreme Court held that if a summon does not fulfil the requirements of Rule
19 of Order 5 under the Code, then such service of summons is not in
accordance with the law.

Service by post
The Code earlier provided that the summons could be served through the
post as well and was given under Rule 20A of the Order, but this provision
has been repealed by the Amendment Act of 1976.

Service of summons in special cases

Rules 21–30 provide the mode of service of summons in special cases.

 If the defendant resides in another state or outside the jurisdiction

of the court issuing the summons, the court may send the summons
to another court in whose jurisdiction the defendant resides to serve
it on him.
 According to Section 29 of the code, if any foreign summon has to
be served, then it must be sent to the court in the territories where
the code applies, and they will further serve the summons as if it
had been issued by them.
 If the summons has to be served in presidency towns like Calcutta,
Madras, and Bombay, then it may be sent to the Small Causes Court
of that particular jurisdiction.
 If the defendant does not live in India and has no agent then
according to Rule 25, the court can serve the summons by way of
post, fax, email or any other appropriate means. The other way of
serving the summons to such sovereign country where the
defendant resides is either by a political agent or through the court
of that country, which has powers and authority to serve the
summons as given under Rule 26 of the order.
 If the defendant is a public officer, a railway officer, or a servant of
the local authority, then the summons can be served through the
head of their departments.
 If the defendant is a soldier, airman, or sailor, then the summons
can be sent through their commanding officer.
 If the defendant is a convicted prisoner, then the summons can be
served through the officer in charge of the prison.
  In case, the defendant is a company or a corporation, the summons
may be served to the secretary, director, or principal officer of the
company or through post to the address where such company
carries on its business or at its registered office.
 If the defendants are partners in a firm, then it must be served to
any one of the partners, but if the partnership has dissolved before
the suit has been instituted, then every partner must be served the
summons.
 The court issuing the summons also has the power to substitute it
with a letter of request, which will contain the same contents and
information as the summons. This will be done for any person
depending upon the position or office held by such a person.

Refusal of summons
According to Rule 9 of the Order, if the defendant refuses to accept the
summons, it is deemed that the summons has been served on him. Similarly,
when he or his agent refuses to sign the acknowledgement, the court will
assume that he has refused to take delivery of the summons and treat such
summons as duly served. This was also mentioned in the case of Puwada
Venkateswara v. Chidamana Venkata (1976).

Objection to service of summons

In the case of Bheru lal v. Shanti lal (1984), the court held that if there are
any objections to the summons served, they must be raised as soon as
possible and at the earliest. If it is not done at that stage, then the court
assumes that the defendant has waived off this opportunity.

Conclusion
Order 5 of the Code of Civil Procedure, 1908 specifically deals with the issue
and service of summons to the defendant. It provides various rules related to
the issuance of summons and their modes of service. All of these have been
discussed in detail in the article. It also provides the scenario as to what will
happen if a person refuses the summons. The defendant has also been given
the opportunity to raise the objections to the summons if any at the earliest
or else it will be waived. But there are many instances where the defendants
tend to avoid or ignore the summons. This further results in delays in court
proceedings and the pendency of suit. The law makers and the courts must
look into this issue in order to solve the problem of the pendency of cases in
our country.