Introduction
The institution of a suit marks the beginning of a civil litigation process. The Civil Procedure Code (CPC), 1908, provides a structured mechanism for filing a suit. The plaintiff, i.e., the person filing the suit, must follow certain procedural requirements laid down in Section 26 and Order 4, Rule 1 of the CPC.
A suit is said to be “instituted” when the plaint (written statement of claim) is presented before the appropriate court having jurisdiction.
Section 26, CPC – Institution of Suit
Section 26(1) states that:
“Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.”
Key Elements of Section 26
- Plaint Required: A suit is instituted by filing a plaint before the court.
- Other Forms of Institution: CPC allows for certain cases to be instituted in other prescribed manners (e.g., written statement in some cases).
- Affidavit Requirement: Section 26(2) (inserted in 2002) mandates that every plaint shall be accompanied by an affidavit verifying the correctness of facts.
Objective of Section 26
- Ensures that only genuine cases are brought before the court.
- Prevents frivolous litigation.
- Affidavit requirement enhances accountability.
Order 4, Rule 1 – Form and Filing of Plaint
Order 4 elaborates on how a suit is to be instituted.
Order 4, Rule 1(1)
“Every suit shall be instituted by presenting a plaint to the court or such officer as it appoints.”
Order 4, Rule 1(2) – Registration of Suit
“The plaint shall comply with the rules contained in Order 6 and Order 7.”
This means:
- The plaint must be properly drafted as per CPC requirements.
- The suit will be registered only if it is properly filed.
- If the plaint does not comply, the court can reject it under Order 7, Rule 11 (Rejection of Plaint).
Essential Requirements for Instituting a Suit
1. Presentation of Plaint
- A plaint is a written document containing the facts of the case, legal claims, and relief sought.
- It must be filed before a competent court having jurisdiction.
2. Payment of Court Fees (Court Fees Act, 1870)
- A suit is not considered properly instituted unless the required court fee is paid.
- The valuation depends on the nature of the suit (e.g., property disputes, contract claims).
3. Affidavit Verification (Section 26(2))
- The plaintiff must verify the facts mentioned in the plaint through an affidavit.
- This reduces the risk of false claims.
4. Vakalatnama (If a Lawyer is Appointed)
- If a plaintiff hires a lawyer, a Vakalatnama (authority letter) must be filed.
5. Serving of Summons (Order 5, CPC)
- After institution, the court issues summons to the defendant to appear and respond.
- This is an essential step to ensure the other party is aware of the suit.
Case Laws on Institution of Suit
1. Salem Advocate Bar Association v. Union of India (2005)
- The Supreme Court upheld the requirement of affidavit verification with the plaint to prevent misuse of litigation.
2. K.K. Velusamy v. N. Palanisamy (2011)
- The Supreme Court emphasized that suits must be properly instituted by following procedural laws, failing which they can be dismissed.
3. Madan Lal v. Shyamlal (2002)
- The court ruled that failure to affix proper court fees can lead to the rejection of the plaint.
Procedure for Instituting a Suit
Step 1: Drafting the Plaint
- The plaint should include:
- Name of the court
- Names and addresses of plaintiff & defendant
- Facts establishing jurisdiction
- Cause of action
- Relief sought
Step 2: Payment of Court Fees
- The plaintiff must pay the prescribed fees based on the case value.
Step 3: Filing of Plaint Before Competent Court
- The plaint must be filed before a court that has jurisdiction over the matter.
Step 4: Verification by Affidavit
- The plaintiff must submit a verified affidavit attesting to the truthfulness of facts.
Step 5: Scrutiny & Registration
- The court office checks the plaint for errors or deficiencies.
- If found correct, the suit is registered, and a case number is assigned.
Step 6: Issuance of Summons (Order 5, CPC)
- The court issues summons to the defendant to appear and file a written statement.
Can a Suit Be Rejected After Institution?
Yes, the suit may be rejected under Order 7, Rule 11 (Rejection of Plaint) if:
- The plaint does not disclose a cause of action.
- The court lacks jurisdiction.
- The plaintiff fails to pay court fees.
- The suit is barred by law.
Conclusion
The institution of a suit is a critical stage in civil litigation. Section 26 and Order 4 of CPC lay down the mandatory requirements for filing a suit. A properly instituted suit ensures that justice is served efficiently, while non-compliance with procedural rules can result in dismissal or rejection of the suit.
