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Report No. 163

Q.7. Order 4, rule 1 (Commencement of suit by plaint): Clause 14 of the Bill

Order 4, rule 1(1) of the Code provides that every suit shall be instituted by presenting a plaint, etc. Order 4, rule 1(2) further provides that every plaint shall comply with the provisions of Order 6 and Order 7, so far as they are applicable. The Bill proposes two amendments in this regard:

(i) It is proposed that the plaint must be in duplicate. This will become Order 4, rule 1(2); [For consequential proposals, See Q.14, below].

(ii) It is further proposed to add Order 4, rule 1(3), as under:

"(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2)."

It would appear that while the first amendment is a comparatively minor one, the second one may require serious consideration. The effect would be obvious, particularly on reading proposed rule 4(3) with rules 4(1) and 4(2), under which any omission to comply with Order 6 or Order 7 would have serious consequences.

In this context, it is to be remembered that Order 6 (pleadings generally) and Order 7 (plaint) contain a vast variety of provisions, dealing with numerous matters of detail. If it is to be provided that a deficiency in respect of any of the detailed matters is to mean that there is no plaint in law, then great anomalies and hardships are bound to ensue. For example, the Code lays down, inter alia, [Order 6, rule 2] that pleadings shall state the material facts on which the plaintiff relies - and this must be done "concisely".

If the registry of the court regards the pleadings as/ "concise" and, consequently, the suit is not regarded as not properly instituted, the result will be that the plaintiff will have to re-draft the plaint. But, even if he is prepared to do so, he will not be certain, if the redrafted plaint itself is "concise" enough (in style) or whether (in point of substance), it contains all material facts. No doubt, the level of drafting should be improved. But it is apprehended, that that object can be more appropriately achieved by educating junior members of the bar, rather than by visiting the litigants with adverse consequences for deficiencies in drafting.

To take another instance, similar problems could arise, if the provision relating to Order 7, rule 14 (documents to be produced, etc.) is alleged to have been infringed. Under the proposed amendment, the plaintiff and the court registry may be compelled to enter into long-ranging conttoversies, as to what are basic documents, what are evidentiary documents, etc.

A still more fertile source of trouble would emerge from the requirement in Order 7, rule 1(c) that the plaint must contain the facts which show the cause of action. It is not always easy at the initial stage for the plaintiff to decide what are the "essential facts" in this regard. Even a good lawyer may not always find the matter easy, as the question is a mixed one of fact and law; and complex issues of substantive law may be inextricably linked with the factual matrix. A difference of opinion between the plaintiff's lawyer and the registry may create problems.

The Commission would like the respondents to this Questionnaire, to offer their considered views in the matter in the light of the above position.

The Code of Civil Procedure (Amendment) Bill, 1997 Back

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