SUITS OF CIVIL NATURE

BY: HARSHIT GOEL

ROLL NUMBER: 1130
STREAM: B.A.LL.B. (Hons.)
SUBMITTED TO: B.R.N. SHARMA SIR

FINAL DRAFT SUBMITTED FOR THE SUBJECT CIVIL

PROCEDURE CODE

CHANAKYA NATIONAL LAW UNIVERSITY

PATNA

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 ACKNOWLEDGEMENT

Apart from my efforts, the success of any project depends largely on the encouragement and
guidelines of many others. I take this opportunity to express my gratitude to the people who have
been instrumental in the successful completion of this project.

I would like to show my greatest appreciation to Dr. B.R.N.Sharma I can't say thank you enough
for his tremendous support and help. I feel motivated and encouraged every time I attend his
class. Without his encouragement and guidance this project would not have materialized.

I would also like to thank my friends who gave me valuable advices in order to complete my
project successfully.

The guidance and support received from all the members who contributed and who are
contributing to this project, was vital for the success of the project. I am grateful for their
constant support and help.

Harshit Goel

Chankya National Law University

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 TABLE OF CONTENT

Acknowledgment..
2

1) INTRODUCTION......
.4-9
a. Aims and
objective...........9
b. Research
Methodology..9
c.Hypothesis..
9
2) Jurisdiction Of Civil
Court ............................................10-14
3) Various Category Of Suits of Civil
Nature15-21
4) CONCLUSION..........................................
.................22

BIBLIOGARPHY...

..23

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 INTRODUCTION

Civil law is a body of law that determines private rights and liabilities, as distinguished from
criminal law. Civil cases usually involve private disputes between persons or organizations.
Criminal cases deal with acts considered to be harmful to society as a whole. A civil lawsuit is a
lawsuit based on non-criminal statutes, such as disputes involving accidents or contracts. Civil
suits typically seek to recover money damages or allow/disallow certain acts, rather than to
imprison or punish a person. Because of the potential loss of liberty and personal rights
involved, the standard of evidence in criminal cases is higher than in civil cases1.

A civil suit is a type of lawsuit in which one party accuses another of damage. These differ from
criminal suits, in which the state or regional body prosecutes a defendant because laws have
been broken. It is possible for both criminal and civil charges to be filed for the same incident;
however, the charges are usually tried by different courts and do not affect one another.

Unlike criminal trials, in which a convicted defendant may be sentenced to imprisonment,

successful civil suits usually require the at-fault party to pay money, also called damages, to the

1 US LEGAL available at http://definitions.uslegal.com/c/civil-lawsuit

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other party. If money is not available, property or other remedies may be substituted. In cases
where the civil suit is about preventing or allowing certain actions, such as restraining orders, the
role of the court is to choose to issue orders rather than award damages.

There are many different types of civil suit that can be filed. Contract disputes, personal injury
claims, product liability, custody and alimony issues, discrimination, and property disputes are
all common types of civil issues. Some courts may divide cases by the amount of money sought
in the lawsuit; cases where the value is relatively low are often sent to small claims court.

Civil suits are generally considered to be about individual rights and grievances. In a criminal
case, a victim may ask a local or state official to file criminal charges, but it is at the discretion
of the official whether to do so. Civil suits allow individuals to bring charges against one another
without the permission and action of a district attorney or state prosecutor.

It is important to remember that while these cases are brought by one party against another, the
parties are not necessarily individuals. A civil suit can be brought by an individual against a
company or corporation; for eg. an individual can pursue a civil suit against a hospital for
malpractice. An employee breaching a confidentiality agreement may be grounds for a company
to file a civil suit against the individual. Additionally, the parties may be two companies,
organizations, or corporations.

There are frequently different standards employed when judging a civil suit as opposed to a
criminal one. Most legal systems that allow civil proceedings provide judgment based on the
likeliest probability drawn from the evidence. Since the burden of proof is lower than in criminal
cases, it is not uncommon for some defendants to be acquitted in criminal court but found liable
for damages in civil court2.

Following suits are not considered of civil nature

Suits in which question relating to caste is involved

Suits relating to the maintenance of dignity and honor
Suits relating to voluntary payment not based on any contract or perpetual rights
Any suit expressly barred by any act
Any suit relating to political question.
Any suit relating to public policy.

ESSENTIAL INGREDIENTS OF A CIVIL SUIT

1. There must be a court of competent jurisdiction

2 Wise Greek definition of civil suit available at http://www.wisegeek.com/what-is-a-civil-suit.htm

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 2. There must be parties
3. There must be a course of action
4. There must be pleadings
5. There must be a subject matter
6. There must be relief sought and prayed for.
7. There must be service of those pleadings; and summons
8. There must be appearance

Stages Of civil suit:

1. Filing the Plaint

2. Court sends Summons to defendant

3. Defendant appears and files written statement.

4. Court frames issues

5. Case posted for trial

6. Plaintiff files Proof of affidavit.

7. Defendant cross examines the plaintiff

8. Further evidence of plaintiff (if any)

9. Defendant files proof of affidavit.

10. Plaintiff cross examines the defendant

11. Further evidence of defendant (if any)

12. Arguments

13. Judgment3.

Initial Steps in a civil suit is Complaint & Answer

3 http://csgautam.org/2012/03/04/civil-procedure-code-1908-2/LAWYERSCLUBINDIA interactive platform for

lawyers in India http://www.lawyersclubindia.com/experts/Stages-in-civil-suit-84421.asp#.ViKunfcdBKd

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The plaintiff, or injured party, typically with the help of an attorney, files an initial document
called a complaint, the first pleading in a civil action, stating the cause of action.

The plaintiffs complaint asks for damages or relief from a defendant, who is alleged to have
caused the injury. The complaint outlines the legal and factual reasons why the plaintiff believes
the defendant is responsible for his injury.

The clerk of the court then issues a summons to the defendant. Either the sheriff or a licensed
process server formally delivers the summons to the defendant. The summons provides notice
of the lawsuit and a copy of the complaint.

The defendant or his lawyer has a specified time to either personally appear in court. The
defendant is required to file a document referred to as an answer. The answer addresses the
facts and the legal claims in the complaint. The answer tells the court which facts in the
complaint the defendant agrees with, and those with which he disagrees.

Once the complaint and answer have been filed with the court, attorneys for both sides consider
proper motions. A motion is a request to the court to issue an order. The defense may file a
motion to dismiss, indicating the complaint does not contain facts making the defendant liable to
the plaintiff. A defendant may file a motion to dismiss before his answer. The plaintiff may file
a motion for summary judgment, which says the facts that make the defendant liable to the
plaintiff are not in dispute. A court granting either of these early motions may end the lawsuit,
which is why they are usually the first matters that take place. If these motions are denied (or not
filed as inappropriate), then the lawsuit will proceeds.

The next part of the process is discovery. During discovery, the parties exchange information and
documents related to the claim in the complaint and defenses asserted in the answer. During
discovery, depositions may be conducted. A deposition is testimony given under oath by people
with information related to the lawsuit recorded by a court reporter.

As discovery proceeds, the parties have pre-trial conferences with the judge. The parties advise
the judge of discovery progress and in some situations discuss possible settlements. The judge
often aids in negotiations and sets schedules for completion of discovery.

During the pre-trial phase, the lawyers may request the judge to bar specific evidence, witnesses
or arguments as legally improper. The judge grants or denies the motions. Upon completion of
discovery, decisions on pre-trial motions and failure to reach a settlement the matter is ready to
go to trial.

Trial and Judgment

At the trial, the plaintiff presents evidence first to a judge either in a bench trial or a group of
citizens in a jury. After the plaintiff presents evidence, the defendant has an opportunity to
present the defense side of the case. The plaintiff has the burden of proving his case by a

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preponderance of the evidence. This means that it is more likely than not, that the claims of the
plaintiff are true. This standard of evidence is much lower than the criminal standard of beyond a
reasonable doubt.

Both sides present their cases, and then the judge or jury decides. If the judge or jury finds
against the plaintiff, the case is over. The judge enters a judgment in favor of the defendant
releasing the defendant from liability for the plaintiffs claims.

If the judge or jury finds for the plaintiff, the defendant is found to be liable and judgment is
entered for the plaintiff. The court then awards damages (money) and/or orders the defendant
perform a specific act. This order concludes the trial process and is a judgment in favor of the
plaintiff.

Appeals

The losing party may file an appeal if they believe the outcome was incorrect legally. An
appellate court may dismiss the appeal, hear and affirm the judgment, reverse it, or send it back
to the trial court with instructions to correct legal errors. Many lawsuits go between the appellate
court and trial court multiple times before final resolution.

Enforcement

When a judgment becomes final in favor of the defendant, the plaintiff may not file suit on the
same basis in the future. If the ruling favors the plaintiff, the defendant must observe all the
terms of the judgment. Failure of the defendant to obey the judgment places the defendant in
contempt of court and brings the danger of prosecution and other penalties for that contempt.
Additionally, a plaintiff with a judgment may seek to enforce it by obtaining a court order to
seize the property of the defendant to satisfy the defendants debt. A final judgement against a
defendant can be collected even if the defendant has moved to another state. This is due to the
Constitutions Full Faith and Credit Clause4.

In view of section 9 of the Code of Civil Procedure, the enquiry of the court should be confined
to the dispute of a civil nature. Any dispute which is not of a civil nature should be excluded
from consideration. The dispute as to right of worship is one of a civil nature within the meaning
of section 9 of the Code and a suit is maintainable for the vindication or determination of such a
right.

The question that falls for determination is what is a suit of a civil nature? A suit is of a civil
nature if the principal question in the suit relates to the determination of a civil right. So if the
4 The Basic Steps in a Civil Lawsuit: Civil Law Process october 25, 2012 by david j. shestokas
http://www.shestokas.com/general-law/the-basic-steps-in-a-civil-lawsuit-civil-law
process/#sthash.GU1zjMvr.dpufhttp://www.shestokas.com/general-law/the-basic-steps-in-a-civil-lawsuit-civil-law
process/#sthash.GU1zjMvr.dpuf

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principal question in the suit is a caste question or a question relating to religious rites or
ceremonies, the suit is not of a civil nature.

In order to fall within the purview of the term civil nature the suit must be for the enforcement
of rights and obligations of a citizen and not matters which are purely social. The rights vesting
in a person by virtue of being a member of a caste or religious community would not be of a
civil nature and the cognizance of the court would be barred to try a suit of such a nature.

But Explanation I to section 9 shows that where a question relating to religious rites or
ceremonies is not the principal question in the suit and is only a subsidiary question and that the
principal question is of a civil nature, viz., a right to property or to an office, the court has the
power to determine the question relating to religious rites or ceremonies to enable it to decide the
principal question which is of a civil nature.

A suit which is thus otherwise of a civil nature is not altered because questions relating to
religious rites or ceremonies arise incidentally. As said above, a suit in which the principal
question relates to religious rites or ceremonies is not a suit of a civil nature.

But where there has been a violation of a legal right that violation affords a cause of action to the
plaintiff and it is immaterial whether he has suffered any pecuniary damages or not. Explanation
II, added by the Amendment Act, 1976, further provides that it is immaterial whether or not any
fees are attached to the office referred to in Explanation I or whether or not such office is
attached to a particular place.

AIM AND OBJECIVE;

The researchers aim is

(i) To understand the wider concept of suits of civil nature

(ii) How far it is helping the court and citizen

HYPOTHESIS;

The researcher hypothesized that the civil court has jurisdiction to try all suits of civil nature.

RESEARCH METHEDOLOGY;

The researcher has used doctrinal method only, like Library, Books and internet.

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 JURISDICTION OF CIVIL COURT

Section 9 confers the power upon the civil court jurisdiction to try a suit of civil nature. In other
words, the civil courts power is restricted only to suits and/or disputes of civil nature. In the
instant case the plaintiff filed a suit for a declaration that the summons issued by a criminal court
was illegal and void and consequently the imposition of fine in two of counts was without
authority of law.

The civil court has no jurisdiction to grant such a relief for the simple reason that the proceeding
before the magistrate was not a civil proceeding but a proceeding of criminal nature. When the
order of the court is directed against a proceeding which is criminal in character then it must be
considered to be a criminal proceeding and as such section 9 is a bar to entertain such a suit.

Where statutory enactments only create rights or liabilities without providing for remedies, any
person having a grievance that he has been wronged or his right is being affected, can approach
the ordinary civil court on the principle of law that where there is a right there is a remedy (ubi
jus ibi remedium).

Before we look at the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) with
reference to the jurisdiction of civil courts in India, it would be interesting to note the meaning
of jurisdiction. The CPC does not define the term jurisdiction. In fact, none of the substantive or
procedural laws seeks to define the term jurisdiction.

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Blacks Law Dictionary defines jurisdiction as A courts power to decide a case or issue a
decree5.

The Calcutta High Court in a full bench judgment in Hirday Nath v. Ram Chandra 6 sought to
explain the term jurisdiction. It stated ... jurisdiction may be defined to be the power of Court to
hear and determine a cause, to adjudicate and exercise any judicial power in relation to it; in
other words, by jurisdiction is meant the authority which a court has to decide matters presented
in a formal way for its decision.

It went on to clearly demarcate three categories of jurisdiction- subject matter jurisdiction, i.e.
whether the particular court in question has the jurisdiction to deal with the subject matter in
question; territorial jurisdiction, i.e. whether the court can decide upon matters within the
territory or area where the cause of action arose; and pecuniary jurisdiction, i.e. whether the
court can hear a suit of the value of the suit in question.

Before going on any further, it must be mentioned that the jurisdiction of the court is not whether
the court is entitled to pass a particular order or decree in a suit. It is whether the court has the
right to hear the particular case. Further, also the jurisdiction is decided by the allegations made
in the plaint, and not the defenses arguments.

Section 9 of the CPC reads

Courts to try all civil suits unless barred- The Court shall (subject to the provisions herein
contained) have jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.

Explanation 1-

A suit in which the right to property or to an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely on the decision of questions as to religious
rites or ceremonies.

Explanation II-

For the purposes of this section, it is immaterial whether or not any fees are attached to the office
referred to in Explanation I or whether or not such office is attached to a particular place.

5 Black's Law Dictionary, The Law Dictionary Featuring Black's Law Dictionary Free Online Legal
Dictionary 2nd Ed.

6 Hirday Nath v. Ram Chandra AIR 1929 Cal 445

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The section clearly allows for the legislature by statute to expressly bar the jurisdiction of the
Civil Courts7.

The general rule however is that the presumption would be made in favor of the existence of a
right to sue in a civil court, the exclusion of the same being an exception.

The Supreme Court has laid down the rule that the plea of absence of jurisdiction can be raised
and entertained at any stage. In the absence of clarity in the point, the author believes that the
plea of the absence of jurisdiction should be allowed only at any point of the case when in the
Court of First Instance, and not in any appeals subsequent to it. Allowing such pleas in appeal
might be misused by the appellant having lost the suit in the lower court. For instance, the losing
party in the Court of First Instance may raise the plea in the appellate court in case he loses in
the Lower Court, despite the suit commencing on his petition. This would be gross injustice to
the other party and would also be against the principles of natural justice. Hence it must not be
allowed to raise the plea at the appellate court.

Like jurisdiction, there is no definition of a civil suit in any Act. However, Explanation I makes
it clear that the suit in which the principal question relates to a civil right is a civil suit.

In Sanker Naryan Potti v K Sreedevi8, the Apex Court held it is obvious that in all types of civil
disputes civil courts have inherent jurisdiction as per Section 9 of the CPC unless a part of that
jurisdiction is carved out from such jurisdiction, expressly or by necessary implication, by any
statutory provision and conferred on any other tribunal or authority9.

This in itself means that the Legislature may, if it so desires, exclude certain portions of any law,
or any law into by including a clause or provision in the Act itself.

Hence, the current position regarding the jurisdiction of Civil Courts is that they have inherent
jurisdiction to hear into civil matters unless it is expressly or implied excluded by a statute. The
Supreme Court has held that the burden of proof for the exclusion of the jurisdiction of the court
is on the party contending it.

Another important point to make here is that the Supreme Court in a landmark judgement held
that it is the Civil Courts itself that has the power to decide if it has the power to decide if it
lacks, or has the jurisdiction to entertain a particular suit, even if on investigation, it is found that
it does not.

7 The Code of Civil Procedure,1908 (5 of 1908), Universals BARE ACT, Section 9.

8 Sanker Naryan Potti v K Sreedevi 1964 AIR 24, 1964 SCR (1) 885

9 Supra 7.

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In the case of a statute that bars the jurisdiction of the Civil Courts, the Supreme Court in the
case of State of A.P. v. Manjeti Laxmi Kanth Rao 10 devised a test for determination of the
exclusion of the jurisdiction of Civil courts. First it is to be determined the legislative intent to
exclude the jurisdiction either explicitly, or by necessary implication. This means that the
Court must first try to determine the precise reasons for the exclusion of the Civil Courts, and
whether it is justified. However the justification is not open to judicial review. Once the court
satisfies itself of the same, the court needs to determine whether the statute, which bars such
jurisdiction provides for a suitable alternate remedy. An alternate remedy in this respect must be
capable of performing the functions that would have been performed by the civil court in the
absence of such exclusion, and must be empowered to pass any order which the civil court in
like circumstances would have passed. In the absence of such alternate mechanism, the
jurisdiction of the Civil Court cannot be excluded. This view has also been accepted by the High
Court at Calcutta in Bar Council W.B. v. A. Aughstir.11

However it was held in Balawwa v. Hasanabi12 , that the jurisdiction of the Civil Court is ousted
in respect of a tribunal created by a statute only so far as the reliefs that could be granted by the
tribunal in question. The case was particularly in regards the Land Tribunal, but the author
believes, that this is the correct implication and applies to all tribunals under different Acts. In
this respect, it has been held by the High Court at Allahabad in number of cases that a suit is
barred of jurisdiction by the Civil Courts only if the cognizance of the entire suit is barred. This
implies that if a certain suit arises, a part of which is not ordinarily to be tried by the Civil Court,
due to express or implied exclusion, it is not true that the entire suit will be barred. Since the
other points of law or reliefs sought are beyond the tribunal, or even if not beyond the special
tribunal created under the Act, the jurisdiction of the civil court is not ousted and hence still has
inherent jurisdiction to try the suit. It is not exactly clear if the special tribunal under the Act can
pass a judgment in relation to the part of the case in which the jurisdiction of the civil court is
excluded. If it can, does the civil court has to limit itself to the other points and is it limited by
the decision of the tribunal? These are questions that are not yet completely clear.

The Supreme Court held that if any statute creates right, which does not pre-exist in Common
Law, and creates a mechanism for enforcement of the same, both the right and the remedy being
created uno flatu, excludes the jurisdiction of the Civil Court, even in the absence of an express
provision. This view has been accepted by the High Courts at Calcutta and Gujarat. The Apex
Court in a decision has held that if the right in question is one in Common Law and not the

10 State of A.P. v. Manjeti Laxmi Kanth Rao

11 Bar Council W.B. v. A. Aughstir AIR 1979 Cal 35

12 Balawwa v. Hasanabi (2000) 8 SCC 272

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creation of any statute, the jurisdiction of the Civil Court will not be excluded because the statute
seeks to provide for an exclusive tribunal for the enforcement under the statute.

The jurisdiction of a Civil Court is taken away when the statute in question clearly states that the
decision of the tribunal that the particular statute creates is final. This is subject to the fact that
the tribunal thus created is sufficiently empowered to act as a Civil Court would in a similar
situation.

However the Supreme Court has held that there are two limitations to such exclusive jurisdiction
of tribunals under any Act, meaning that the jurisdiction of the Civil Court will not be excluded
in certain circumstances. One such situation would be where the Act states that the decision of
the tribunal will be final for the purposes of this Act. Another circumstance would be where the
statute does not state that all questions regarding the special right created by the statute will be
determined by the special authority created under the Act.

Apart from being expressly barred by a statute, the jurisdiction of the civil court may also be
impliedly barred. However to be considered as impliedly barred, the jurisdiction of the civil
court must be necessarily barred. The Supreme Court has held in Shri Panch Nagar Parak v. Puru
Shottam Das13 that in the absence of any express exclusionary provision, the court needs to
examine the purpose, scheme and relevant provisions of the Act in order to determine implied
exclusion of the jurisdiction of Civil Courts.

An example of such implied exclusion would be a suit by a person whose property is attached
under Code of Criminal Procedure, 1898 is impliedly barred from filing a civil suit and can only
invoke clauses under that Act for remedies.

However it must be mentioned that the Supreme Court has held that ouster of the jurisdiction of
Civil Court by a statute, whether explicitly or implicitly does not bar the court from examining
whether the provisions of the Act have been complied with, or if the authority under the Act has
acted in accordance with the principles of natural justice. The High Court at Calcutta went on to
explain further that in the event of any of the above being contravened, the Civil Court has the
jurisdiction to strike down all such acts of the authority.

It is interesting to note in this regard that the various High Courts also enjoy certain civil
jurisdictions in their ordinary jurisdiction. Further under Article 228 14 , the High Court has the
ability to call upon any matter pending in any lower court to decide it on its own, or to determine
the points of law involved in it and return the same. In the absence of any detailed explanation to
this section, it is to be implied that this power also extends to the Civil matters in lower courts.

13 Shri Panch Nagar Parak v. Puru Shottam Das AIR 1999 SC 3071

14 Takwani, C.K., Civil Procedure, 4th Edition, Eastern Book Company, Kolkata, 1999.

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This implies that the civil jurisdiction of the High Court can generally not be ousted even in the
absence of any express clause.

Another aspect to be considered while determining the jurisdiction of the Civil Court is the
concept of Res Judicata. Section 11 of the CPC reads No Court shall try any suit or issue in
which the matter directly and substantially in issue has been directly and substantially in issue in
a former suit between the same parties, or between parties under whom they or any of them
claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit
in which such issue has been subsequently raised' and has been heard and finally decided by
such Court.

The principle of Res judicata ousts the jurisdiction of the Civil Courts where the matter in hand
has been entertained in a suit by a competent authority previously. So it might be said that the
jurisdiction of a civil court is excluded if the suit has been decided earlier by a competent
authority.

Hence it is clear that the jurisdiction of the Civil Court does not extend to all matters but might
be limited in certain cases. However it has inherent jurisdiction to try all suits of a civil nature
in the absence of any exclusion of the same.

However the author hopes that the Apex Court comes out clarifying the situation with the case
regarding the jurisdiction of a Civil Court in which its jurisdiction is partly barred, expressly or
impliedly and where a part of it is not15.

Various Category Of Suits Of Civil Nature

Suits of civil nature falls into various categories. It is depending on the nature of suits, or status
of person filing the suit etc.

These categories in brief are as follows:

15 Law Teacher: http://www.lawteacher.net/free-law-essays/commercial-law/suits-of-a-civil-nature-commercial-

law-essay.php#ixzz3kUIPoF5g.

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 1. Suits By Or Against Govt./ Public Office
2. Suits By Or Against Military/Naval Men/Airmen
3. Suits By Or Against Corporations
4. Suits By Or Against Firms And Persons Carrying On Business In Names Other
Than their Own.
5. Suits By Or Against Trustees, Executors and Administrators.
6. Suits By Or Against Minors And Persons Of Unsound Mind
7. Suits By/Against Persons Of Unsound Mind
8. Suits Relating To Matters Concerning The Family
9. Summary Procedure. (Suit Relating To Bills Of Exchange, Hundis, Promissory
Notes Etc.)
10. How is Summary Suit Instituted

Suits By or Against Govt./Public Office

Where the Govt. or Public Officer in official capacity is plaintiff (one who files the suit), or the
defendant (against whom the suit is filed), such Authority shall be named as "Union of India" or
" State Govt. of (State Concerned) or The " Name & designation " of public officer.

In case, the suit is filed against a public officer in his/their official capacity, the appropriate govt.
shall also be made a party to the suit.

In such case, a two months prior notice has to (sec 80) be served on the Govt./public officer, in
case if/he is defendant having regard as--- as to who the party is, the notice shall be served on the
following:

i) In case of Central Government, to its secretary

ii) In case of State Government, to its secretary, or the collector of the district.
iii) In case of public officer, to him at his office.

However, in case of urgent basis/relief, the suit may be instituted against Govt./public officer,
after taking permission of the court.

The court is required to allow a reasonable time to the Government, to communicate the subject
matter of the suit through proper channel so as to enable the Govt. to accordingly instruct the
Govt. pleader/Counsel appearing on its behalf. The court at its discretion may also extend such
time. However such time should not exceed 2 months in aggregate.

Where the Govt. undertakes the defense of such public officer, it shall authorize it's pleader to
appear in the court, and the pleader shall make an application in that regard to the Court. If no
such application is made by the pleader within the time fixed by the court, the case shall proceed
as if between private parties.

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However, in all cases against the Govt./public officer the endeavor of the court shall be to assist
the parties to arrive at an amicable settlement if possible at the first instance and for that the
court is empowered to adjourn the proceedings for a reasonable period of time in which attempts
at settlement may be made by the parties.

Suits By or Against Military/Naval Men/Airmen

A suit may be instituted against any officer employed by any of the Armed forces; i.e. Navy,
Military or Air force in their personal capacity and it shall proceed in the same manner as
between two private parties.

Suits By or Against Corporations

In suits against a corporation ( Companies : Private or public ), the summons are to be served
either on the secretary, or any of the directors or principal officer of the corporation or may be
sent by registered post or personally served at the registered office of the corporation.

If the corporation does not have any registered office then the service shall be made at any place
where the corporation carries on its business.

Any documents concerned with the suit (by or against the corporation) can be signed/verified by
the following persons on behalf of the corporation:

i) The Secretary
ii) Any of its Director
iii) Any Principal officer

Who are conversant with the facts and circumstances of the suit?

The court is empowered to direct personal appearance of any of the above named officer at any
stage of the suit, to answer questions relating to the suit.

Suits By or Against Firms and Persons Carrying on Business in Names Other Than Their
Own.

A suit may be instituted by or against any 2 or more persons claiming to be partners in a

partnership firm in the name of the firm provided such persons, were partners in the firm on the
date when the cause of action occurred.

Any party to such a suit may apply to the court for a statement of the names & addresses of all
the partners of the firm as on the date of occurrence the cause of action. The court shall direct
such a statement to be furnished and verified in a specific manner.

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The proceedings in the suit shall then continue in the firm's name but the final decree shall
contain the names of the partners and all consequences shall follow as if the suit has been against
the partners individually.

Also the partners will appear individually in their own names in all court proceedings.

Similarly, a suit may also be instituted by or against any person or any Hindu, Undivided family,
carrying on any business in a name other than his own name, in the same manner as against a
partnership firm.

When two or more persons are surd in the name of the firm and any of them dies, during the
pendency of the suit or before institution of the suit then it is not necessary to make his legal
representative a party to the suit.

However, the legal representative can make an application, to be made a party and can also
enforce any claim against the surviving partners.

A partner served summons can appear in the court under protest that he was not a partner of the
firm when the cause of action accrued and he can apply to the court for determination of such a
question any time before the date of hearing and final disposal of the suit.

Suits By Or Against Trustees, Executors and Administrators.

In cases where a suit has been instituted regarding a property between persons beneficially
interested in the property and some third party, and the property, concerned is vested in a trustee,
executor or administrator, then the persons, beneficially interested in the property shall be
represented by the trustee/executor/administrator and the persons interested may not be made
parties to the suit.

In case there are more than one trustee / administrator or executors to a property then in case a
suit has been filed against one, others shall also be made parties to it. However, those executors
who are unable to prove their testator's will or who are outside India are not required to be made
parties.

Suits By or Against Minors And Persons of Unsound Mind

Since a Minor is not capable of entering into a contract, even suit, which is instituted by him,
will be filed in his name by his "next Friend", i.e. any other person who has attained majority in
some way.

Such " Friend" should be closely related to the minor so as to bonafidely ascertain the interests
of the minor, for instance father, mother, brother, sister etc, or guardian. He does not become a
party to the suit but merely represents minor's interest.

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To avoid any discourage vexatious--- litigation by such person, the code provides that, the courts
can order the next friend to give security for payment of all the costs incurred or likely to be
incurred by the defendant.

Any person can be appointed, as the " Friend" or guardian of the minor as long as he is of sound
mind, has attained majority, has no interests adverse to that of the minor's and he is not
defendant or plaintiff in the suit.

Where there is neither any guardian appointed by a competent Authority, nor any other person fit
and willing to act as a guardian for the suit, the Court can appoint any of its officers as a
guardian to the suit.

The court may direct the costs incurred by such officer in his capacity as guardian to be borne
by:

i. Any of/or all parties to the suit, or

ii. Out of property of the minor, or
iii. Out of Any fund in the court in which minor, is interested.

A " Friend" is not allowed to enter into any agreement/compromise on the minor's behalf, which
may be in reference to the particular suit unless the court permits him to do so.

A "next friend" may retire but not before, he first recommends another person to take his place
and gives security for all the costs that have already been incurred in the suit.

ON ATTAINING MAJORITY:

On attaining majority, it shall be at the option of the minor plaintiff whether to proceed with the
suit or opt out.

In case he opts to proceed with the suit, he will have to make an application for discharge of
Friend", and permission to proceed on own name.

In case he opts out, he can apply for an order to dismiss the suit/application on making payment
of costs incurred by the opposite party or which has been paid by his next friend.

Suits By/Against Persons of Unsound Mind

Similar provisions and rules apply to the persons of unsound mind as those which apply to
minors, whether a person develops a mental illness/infirmity during the pendency of suit or
before it.

Suits Relaing to Matters Concerning The Family

The kinds of suits relating to family are:-

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 1. A matrimonial suit claiming any matrimonial relief including the declaration of
validity of a marriage or matrimonial status of any person.
2. A suit claiming a declaration of legitimacy of any person.
3. A suit relating to custody/guardianship of a minor/any person of family under a
disability.
4. A suit for maintenance
5. A suit for declaring validity or effect of an adoption
6. A suit for relating to wills, intestate and succession
7. A suit relating to any matter concerning family in respect of which the parties are
subject to their personal law.

In all such cases, it shall be first the duty of court to make an endeavor to settle such types of
suits, to which this order applies. (O32A R3)

"Family" for such suits shall include the following:

1. A man and his wife living together plus any child or children born of them or
either of them.
2. A man not having a wife or not living with his wife, maintaining any child or
children, born of him or otherwise.
3. A woman and have husband/not living with her husband, maintain any
child/children being born of her or otherwise.
4. A man or woman living with his/her brother, ancestor or any close relative,
related to him/her by blood.
5. Any combination of one or more of the above.

The important feature of "summary suit", is that, here the Defendant is not allowed to defend the
suit, unless he takes the permission from court.

Defendant is allowed to defend himself only if according to the affidavit filed by him, it is must
for the plaintiff to prove charges against him.

If by affidavit by Defendant, it appears that he has no defense, then court will decline him the
permission and pass necessary orders in favor of plaintiff.

Summary procedure applies to following kinds of suits:-

i. Suits upon bills of Exchanges, hundies or promissory notes

ii. Any suit filed by the plaintiff for recovery of a debt/money payable by the defendant
according to a written contract, or
iii. In case of an enactment wherein the amount to be recovered is a fixed amount of money ,
or a debt other than a penalty, or

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 iv. A guarantee, where the claim against the principal is in respect of a debt or for money
only.

The object behind provision of summary procedure was to ensure a speedy trial for recovery of
money in cases where the defendant has no defence and thus any unreasonable delay sought to
be caused is eliminated.

How is Summary Suit Instituted

A summary suit is instituted by presenting a plaint in the court containing the following
specification;

i. It must mention that the suit is filed under summary procedure and below the title of the
suit it should be inscribed "Under Order XXXVII of code of Civil Procedure, 1908".
ii. It must state that no relief, which does not fall within the ambit of this rule, has been
claimed.

Then the summons of the suit are to be issued to the defendant, which should be in prescribed
from no. 4, accompanied with a copy of plaint and Annexure.

When the defendant appears, he is required to enter his appearance within 10 days of receipt of
summons. On default of his appearance it is assumed that he has admitted the allegations made
in the plaint and the plaintiff gets entitled to a final order granting him the sum as mentioned in
the plaint along with interest at the specified date and costs if the Court thinks it appropriate.
(Rule 2)

Where the defendant enters an appearance, the plaintiff is required to serve on him the summons
for judgment in Form no. "4A) accompanied with an affidavit verifying the cause of action and
the amount which is claimed in the plaint, and a statement to the effect that there is no defense to
the suit.

Then, the defendant may apply for leave to defend the suit within 10 days from the date of
service of summons, disclosing by way of an affidavit, such facts which he believes to be
sufficient to entitle him of the right to defend himself.

The Court shall not refuse permission to the defendant to defend the suit unless it believes that
the disclosure by the defendant does not show that he has any substantial defense to raise or that
it is frivolous.

Also, where the defendant admits part of the amount claimed by the plaintiff, then the court shall
permit the defendant to defend only, when such admitted amount is deposited by the defendant
in the court.

The court may also require the plaintiff or the Defendant to deposit some security amount by
way of costs, depending on the facts, i.e. to ensure the Bonafide of plaintiff or Defendant.

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 CONCLUSION
In general sense the meaning of civil nature is civil according to dictionary it is relating to
citizen as an individual, and nature means fundamental qualities of a person or thing.

Here suit of civil nature means the application of plaint before civil court is of civil nature or
between two or more individuals.

Section 9 of the code of civil procedure talks about court to try all civil suit unless barred- the
court shall have the jurisdiction to try all suits of civil nature except suit of which their
cognizance is either expressly or impliedly barred.

The civil court has no jurisdiction to grant such a relief for the simple reason that the proceeding
before the magistrate was not a civil proceeding but a proceeding of criminal nature. When the

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order of the court is directed against a proceeding which is criminal in character then it must be
considered to be a criminal proceeding and as such section 9 is a bar to entertain such a suit.

Suits of civil nature falls into various categories. It is depending on the nature of suits, or status
of person filing the suit etc. for eg. Suit by or against government or public officer.

The hypothesis is wrong that civil court has jurisdiction to try all suits of civil nature. The court
has jurisdiction to try all civil cases except suit is either expressly or impliedly barred.

Bibliography

Takwani, C.K., Civil Procedure, 4th Edition, Eastern Book Company, Kolkata, 1999

Sarkar, Sudipto, Sarkar Code of Civil Procedure, V.K. Manohar (Ed.), 9th Edition, Vol. I,
Wadhwa and Company, Nagpur, 2001

Mulla, The Code of Civil Procedure, Binod Mohan Prasad (Ed.), 17th Edition, Lexis
Nexis Butterworths, New Delhi, 2007

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 Mallick, M.R., Mitra's Civil Procedure, 4th Edition, Eastern Law House, Kolkata, 2002

Jain, M.P., Civil Procedure Code, 2nd Edition (Nagpur, Wadhwa Publications, 2007)
Bakshi, P.M., Mulla on Civil Procedure Code, 15th Edition (Bombay, N.M. Tripathi (P)
Ltd, 1997).

Thakker, C.K. & Thakker, S.M., Thakker on Civil Procedure Code (Lucknow, Eastern
Book Company, 2005)

Nandwani, Anil, Law of Civil Procedure Code in India, 1st Edition (Faridabad,
Allahabad Law Agency, 2006)

Sarkar, Supidto & Manohar, V.R., Sarkar's Civil Procedure Code, 11th Edition (Nagpur,
Wadhwa Publications, 2008)

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