FACTORS TO BE CONSIDERED BEFORE PURSUING A CIVIL LAWSUIT

Law Civil Law
27-Jan-2022
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BRIEF INTRODUCTION OF CIVIL LAW:

In India, Civil Laws are mainly guided by the Code of Civil Procedure, Limitation act, and Specific Relief Act. Other acts like the Consumer Protection Act, SARFAESI Act, The Arbitration and Reconciliation Act, Intellectual Property Laws, are a part of Civil Law.

The Plaintiff/Petitioner can approach the Learned Court to claim the respective relief under Section and rules prescribed under aforesaid acts. Under the Civil Procedure Code, they can approach the Court by filing Civil Suit. 

In this article, we are going to run through factors you must consider before taking a civil lawsuit ahead.

PARTIES TO THE SUIT

The first and essential part for filing a civil suit is the determination of Parties in the suit, i.e., Plaintiff and Defendant. The party who files the case and claims relief from the other party is known as the plaintiff, and the party against whom the case is filed is known as the Defendant. Hence, the plaintiff and Defendant are both essential for the civil suit. The determination of parties is guided by order 1 of the code.

Under Order 1, Rule 1, it provides that all the plaintiffs can be subjected to one suit if they are part of the same dispute or the same transaction or they are entitled to any relief under the same transaction.

The Hon’ble High Court of Bombay has laid down the aforesaid principle of law in the matter of Krishna Laxman Yadav And Ors. vs. Narsinghrao Vithalrao Sonawane AIR 1973 Bom 358, that the result of the provisions of Order 1, Rule 1 of the Civil Procedure Code is that where the right to relief exists in favor of several plaintiffs as a result of the same transaction even if the right is several, the plaintiffs would be entitled to join in the same suit for the several reliefs. The only precondition is that a common question of law or fact must be present between the plaintiffs. 

JURISDICTION

Jurisdiction is another critical factor that has to be considered for filing a civil suit. Under Civil Procedure Code, the jurisdiction is determined on two conditions:

1. Pecuniary Jurisdiction-

Under Section 6 of the code, it has been prescribed that nothing shall operate to give any Court jurisdiction over suits the amount or value of the subject matter which exceeds the pecuniary limits (if any) of its ordinary jurisdiction. This means that the Court cannot exercise its jurisdiction on any suit which exceeds beyond the prescribed monetary limit of that Court.

2. Territorial Jurisdiction

Under Section 16 and Section 20 of the code, the territorial jurisdiction of the Court has been prescribed; the main factors which are required to determine the jurisdiction are:

The suit in respect of Immovable or movable property which under distant or attachment

  • Suit shall be instituted to obtain relief respecting, or compensation for wrong to, aforesaid subject matter held by or on behalf of the Defendant, in the Court within the local limits of whose jurisdiction the property is situated, 

  •  within the local limits of the Court, whose Jurisdiction the Defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Suits on other Subject Matter:

  • The Court for other subject matter has territorial jurisdiction under Section 20 of the code,  at the place where the Defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain.

  • Any of the defendants, either the leave of the Court is given, do not reside, carry on business, or personally work for gain, acquiesce in such institution.

On the basis of the aforesaid provision, the Hon’ble Apex Court has laid the judgment in the matter of Harshad Chiman Lal Modi vs. Dlf Universal & Anr, (2005) 7 SCC 791, that the actions against res or property should be brought in the forum where such res is situated. A court within whose territorial jurisdiction the property is not situated has no power to deal with and decide the rights or interests in such property. In other words, a court has no jurisdiction over a dispute in which it cannot give an effective judgment.

CAUSE OF ACTION

Another key factor that is to be considered, moreover which is also part of the jurisdiction, is the “Cause of Action” as per Section 20. The cause of action, wholly or partly in any particular suit, has been arising in order to file the same before the Court under whose jurisdictional limit the cause of action took place or still continues.

Based on the aforesaid provision, the Hon’ble High Court of Madhya Pradesh has laid down the judgment in the matter of Maniklal Mittal vs. The Union Of India, AIR 1966 MP 243,  since the bills for securing payments had to be submitted to the Station-Master at Indore and also because the plaintiff was to be paid through the Defendant’s bankers at Indore by means of cheques drawn on the said Bankers the cause of action can be said at least party to arise within the Jurisdiction of the Indore Court.

LIMITATION

An essential part of a civil suit is that the suit shall be filed within the limitation period; if the same has been filed after the limitation period without any explanation, the Court can dismiss the same. The standard rule, which has been prescribed under Article 113 of the Limitation Act, is that the plaintiff can file the suit within three years from the date commencement of the right to sue the Respondent.

Exception- Section 5

There is one ground for an exception, which has been prescribed under Section 5 of the Limitation Act, wherein it has been provided if the suit has been filed beyond the limitation period. The delay was the bonafide delay; then, the Court can entertain the suit under Section 5 of the Limitation Act.

The Hon’ble Apex Court has held in the matter of Bhivchandra Shankar vs. Balu Gangaram more & Ors. The expression “sufficient cause” used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner that serves the ends of justice. 

In the matter of Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors., (1987) 2 SCC 107 the Hon’ble Apex  Court has held that the Court should take a liberal view in matters of condonation of delay.

CONCLUSION

Therefore, we can conclude from the above that the aforesaid factors are to be considered for pursuing the civil suit. The most important thing that has to be kept in mind is that the subject matter should be of purely a civil nature to file the civil suit, prescribed under the Civil Procedure CoTherehere are other statutory law bodies to try and entertain the complaint/ suit under different Acts.

For Instance:

  • Consumer Dispute- Consumer Protection Act at Consumer Forum 

  • Banking Dispute above the Pecuniary Jurisdiction of Rs 20 Lakhs - SARFAESI ACT at Debt Recovery Tribunal

  • In any contract, it has been mentioned explicitly that the particular dispute has to be resolved through arbitration. In such cases, the arbitration and conciliation act will regulate the dispute.

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