The Essence Of 'Civil Litigation'

The terms 'Civil Lawyering' or 'Civil Litigation' are more often than not, eclipsed by our monstrous Criminal Justice System, and the Trial. The ever fascinating and ever encompassing Law of Crimes, titillates almost everyone's minds alike (whether a layman, a student of Law, or a Lawyer!). The reality comes to such a point that our Civil Laws are viewed just as a matter of routine, thus, one avoids or runs away to understand the very essence of the civil side of the Law, or the ambits of Civil Lawyering. This Article is an attempt to help us put on our thinking hats, and it also highlights the importance of understanding and appreciating the essence of this forgotten branch of the Law (for its importance can never be emphasized enough!). Let us begin at the beginnings by tracing out the roots of the Civil Law. Essentially, legal systems throughout the world are divided into – the Common Law System and the Civil Law System. Although the two may appear to be the same, there is a fine line of a difference between the two. It would not be an exaggeration to say, that the Civil Law System is anchored deep – as it has set principles to follow, and a tool (called discretion) is provided to the Judges, so that the arbitrariness or the lacunae in the Legislation is put a check on-to! Unlike the Common Law System, which saw the light of the day due to the efforts of William the Conqueror, the Civil Law finds its roots in the Roman law, wherein legal codes were used to monitor the process and administration of justice. However, our Code ('the Civil Procedure Code, 1908') is slowly assuming the title of being cumbersome, and this should be the last thing that we, as the guardians of the Law, must want to be happening! SCOPE OF THE CIVIL LAW So, how do we set the civil law in motion; who may come forward and set it in motion; and for what? (You may straight-away relate the said questions to the Criminal Law. In fact, many of you must already have answers to these, vis-à-vis the Criminal Law.) For the purpose of our piece, let us try to answer the above questions one by one. Your right to avail your remedy under the Civil Law stems from something called a 'Cause of Action' (hereafter as "the COA"); which in simple words, is a violation of the existence of a legally vested right with respect to one's immovable property, movable property, and reputation, among others. Further, the Code of Civil Procedure, 1908 (hereafter as "the Code") provides that a remedy can be invoked by a person who is himself affected, or by someone who is authorized on his behalf (as in the case of a Power of Attorney), or even a guardian (in case of suits for/against minors, or persons of unsound mind). A class action suit may also be brought under various provisions of the Law (for instance, the Consumer Protection Act, 1986; and the Companies Act, 1956 – to name a few!) And, to put to rest our third question, lets import the meaning and essence of Section 9 of the Code – the suits of civil nature are thus, those suits, the cognizance of which is not expressly barred by the Code. In other words, a matter in which one's right to property or to an office is contested, is a civil suit (irrespective of the fact whether the ultimate decision relates to religious rites or ceremonies, or whether a fee is attached to this 'office' or not). Thus, for the violation of your rights (as already briefed-out), you may go ahead and institute a civil suit. THE STAGES Broadly, a civil suit passes through the following five stages: Institution of a Civil Suit (Plaint, Written Statement, Replication, etc.)Framing of IssuesSummoning and attendance of witnessesHearing of Suit and Examination of WitnessDecree/Order and the Judgment Below is an overview of the stages involved in a civil suit; it is not exhaustive. Institution of a Suit (Section 26; Orders VI, VII and VIII of the Code) A suit is instituted by the presentation of a Plaint; it shall contain material facts only, and these facts must be proved by way of an Affidavit. Simply put, a Plaint is a written statement of allegations against a defendant(s). In reply to these allegations, the Defendant is given an opportunity to file a Written Statement (W.S.) within 30 days, failing which the Court has discretion to allow time to file the same (which must not be later than 90 days from the date of service of summons to the Defendant). (Note: A Plaint has to have a set of particulars (specified under Order VII Rule 1), failing which the Plaint may be rejected under Order VII Rule 11.) In case an additional plea is taken by the Defendant, the Plaintiff may ask the Court and file a Replication/Rejoinder; no additional issues may be raised by the Plaintiff at this stage. However, the words 'Replication/Rejoinder' do not find a mention in the Code. Order VIII Rule 9 uses the phrase 'Subsequent...

The Essence Of 'Civil Litigation'

Meghna Nimbekar

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