COURT PROCEDURE

STAGES OF A SUIT

Pleadings :

When a person wants to claim any reliefs through court, he files a suit by lodging a Plaint in court, which contains brief facts of the case and the reliefs claimed. The person filing a suit is called the Plaintiff. The person against whom the suit is filed and from whom reliefs are claimed is called the Defendant. A copy of the plaint is served upon the Defendant, who thereafter files a written statement containing statements of facts and law that constitute his defense to the Plaintiff’s claim. The Plaint and the written statement are called pleadings.

Issues :

After pleadings are filed, the suit appears on board for framing issues and eventually the court frames issues. Issues are disputed questions of facts and/or law that are involved in the suit, which the judge has to decide. From the issues, the parties know what they have to prove by leading oral and documentary evidence to succeed in the case.

Hearing of Suit :

After issues are framed, the suit is fixed for hearing. The Plaintiff normally leads his evidence first, followed by evidence of other witnesses of the Plaintiff. Thereafter Defendant leads his evidence followed by evidence of other witnesses of the Defendant.

Evidence :

The evidence of each witness is led by filing an affidavit of examination-in-chief with which all original documents have to be filed with a list. The court accepts only those documents that are proved as per law and marks them as 'Exhibits'. Documents that are not proved as per law are marked as 'Articles' for Identification. The documents that are not marked as Exhibits can be proved by leading further evidence of other witnesses. All available oral and documentary evidence has to be filed in the trial court itself. No further evidence, either oral or documentary is normally allowed to be filed in appeal, unless such evidence pertains to a subsequent event or if sufficient cause is made out for belated production thereof. The other side has a right to cross-examine every witness who files his affidavit of examination-in-chief. Cross-examination is an important tool to discredit the witness who gives false or incorrect evidence or suppresses some evidence and is an important to the success of the case.

Arguments :

After oral and documentary evidence of both sides is completed, arguments are usually advanced by the advocate for the Defendant, followed by arguments of the Plaintiff’s advocate and finally the advocate for Defendant argues on law points in rejoinder.

Judgment :

After arguments are concluded, the suit is fixed for judgment, when the judge finally pronounces the judgment. The suit is decreed if the judge comes to the conclusion that the Plaintiff has established his claim against the Defendant. If the judge comes to the conclusion that the Plaintiff has failed to prove his case, or if the Defendant proves his defense to be true, the suit is dismissed. The judgment is sometimes dictated in open court on the date fixed or may be dictated in the chamber of the judge. However on the date fixed for judgment, the final order/ decree is pronounced orally in open court. The party who wants a certified true copy of the judgment, must apply for a certified copy of judgment and decree in writing in a prescribed form on payment of prescribed fees. Charges for certified copies of the judgment and/or decree depends upon the number of pages of the judgment and higher fees are payable if copy is urgently required. Any party who wants to file an appeal must immediately apply for a certified copy. No appeal can be filed without a certified copy of the judgment. An appeal is required to be filed within 30 days of the judgment though time can be extended in some cases.

Execution of decree :

If the suit is decreed, the Plaintiff has to take steps for executing the decree to get the reliefs granted to the Plaintiff.

Appeal :

Any party aggrieved by the judgment of the trial court can file an appeal within 30 days of the date of judgment. However additional time is given for the time taken by the court for preparing the certified copy i.e. from the date of filing of application for obtaining certified copy till the date on which the certified copy is ready. The person filing the appeal is called the Appellant, whereas the other side is called the Respondent in such an appeal. If no appeal is filed within the time prescribed, the order of the trial court becomes final and appeal becomes time-barred. However in special circumstances when the Appellant makes out sufficient cause for condonation of delay, the court can in its discretion condone the delay in filing the appeal after the period of limitation expires. In case the suit is decreed, an order for stay of execution of decree is to be obtained from the appeal court, failing which the Plaintiff may execute the decree. Stay to execution of decree is usually granted, subject to such terms as the court may impose while granting stay. In case any decree for eviction is passed, the stay is usually granted on payment of interim mesne profits, which is substantially higher than the rent that is paid by the tenant.

Further challenge by aggrieved party :

Any person aggrieved by the judgment of the Appellate Bench of Hon’ble Small Causes Court, can challenge the order before the Hon’ble High Court by filing a Writ Petition or a Civil Revision Application. The order of the Hon’ble High Court can be further challenged by filing a Special Leave Petition before the Hon’ble Supreme Court.

Settlement :

In many cases, parties arrive at an amicable settlement. Settlement is arrived at under several circumstances. However good the case may seem to be, there is always an element of risk of losing the litigation. Settlement cuts the risk of loosing the case. Another reason to settle the dispute is to avoid lengthy procedures and expenses involved in any litigation. Many litigants feel that it is better to settle the disputes at any particular stage of litigation, rather than taking a chance of winning or losing the litigation after several years of litigation. In many cases the courts intervene to persuade the parties to settle the disputes and even refer the case for meditation. Settlement also saves time, money and energy that is inevitable in judicial proceedings.

Interlocutory Proceedings :

Suits take a long time for disposal and so can an appeal. Pending suit or appeal, the court has powers to pass interim orders like interim injunctions, appointing commissioners for site visits, depositing rent/ compensation in court or pay rent/ compensation directly to the landlord/ licensor, bringing heirs of deceased party on record, amending pleadings, inspection of premises or documents etc. Most of the times, interim orders are passed on the basis of affidavits and documents filed by both parties in such interim proceedings. Tentative (prima facie) findings of facts are given by court while passing interim orders. Interim reliefs can be granted either in favour of the Plaintiff or Defendant in a suit or in favour of the Appellant or Respondent in an appeal.

Interim Relief :

The application for interim relief is filed under the various provisions of the Civil Procedure Code by filing an affidavit in support of the application. Notice is required to be given to the other side with a copy of the affidavit in support through the court bailiff or a copy is handed over in the court to the opposite party or his advocate. The opposite party may thereafter file an affidavit in reply to oppose the reliefs. The party filing the application can then file an affidavit in rejoinder. After affidavits are filed with copies of supporting documents, the advocate for the party filing the application for interim relief argues the application followed by the arguments of the advocate for the opposite party. Thereafter the court gives its judgment and either grants an interim relief or refuses to grant an interim relief. Either party, who is aggrieved by a judgment and interim order of the trial court, can file an Appeal or a Revision Application before the higher court. In Small Causes Court, an Appeal/ Revision is filed before the appellate bench comprising of two judges.

After the verdict from the Appeal court, the aggrieved party can move the hon’ble High Court and thereafter the hon’ble Supreme Court.

GENERAL INSTRUCTIONS TO PARTIES

DATES OF HEARINGS :

Every suit or appeal in Small Causes Court is given a date on which the same will appear on board. On every date of hearing, a board is prepared and the original board is kept with the Judicial Clerk. A copy of the board is fixed outside the court showing the Suit/ Appeal Number. After the next date is given, the judicial clerk writes the next date on board. It is necessary for every party to check the board for noting the next date fixed by court. If any party remains absent, the court may take a decision in the absence of the party, which can go against the party who may be absent. The dates of hearing, roznama of cases and orders are now available online on the websites of courts. Even though the court conducts several cases in the morning session from 11-00 a.m. to 2-00 p.m. and in the afternoon session between 2-45 p.m. and 5-45 p.m. all matters may not proceed. Many matters may be simply adjourned for want of time or for some other reason.

SPECIAL INSTRUCTIONS TO PLAINTIFFS/ APPELLANTS

COURT FEES :

The Plaintiff who files the suit or the Appellant who files the appeal has to pay court fees, which depend upon the value of the reliefs claimed by him/her. After the Plaint/ Appeal Memo is lodged and is scrutinized, the same is assigned a particular Court, the Suit/ Appeal Number is given and the next date is fixed. the Plaintiff/ Appellant has to collect the Court Room No. the Suit/ Appeal Number and the next date from court or court clerk of the advocate, when the party should appear in court.

SERVICE OF SUMMONS :

The court issues a summons in the suit, which is to be served on the Defendant with the help of court bailiff. If the Defendant resides outside the jurisdiction of court, the summons can be served by Registered Post A.D. If the Plaintiff does not serve the summons on all the Defendants within time, the court can dismiss the suit. It is therefore important for Plaintiff/ Appellant to serve the summons on all the Defendants/ Respondents to avoid dismissal of the Suit/ Appeal for default of Plaintiff/ Appellant. After summons of suit are served, the Defendant is required to file his written statement within 30 days of service of summons. Thereafter issues are framed in due course and the suit is heard as stated earlier hereinabove.

COURT ATTENDENCE :

Once the suit or interim application is fixed for hearing, it is necessary for the parties to remain present. If the Plaintiff remains absent, the court can dismiss the suit. If the Defendant remains absent, the suit can be heard exparty in the absence of the Defendant.

DEATH OF PARTY :

In case any party to the suit dies, whether he/she is one of the Plaintiffs or one of the Defendants, it is always the responsibility of the surviving Plaintiffs and/or the heirs of the deceased Plaintiff to bring the heirs of the deceased party on record of the suit within 90 days of death. However delay may be condoned by the court if Plaintiff shows sufficient cause for not filing the application within 90 days and for the delay thereafter.

The procedure in the event of death of the party for Appeals/ Revisions is similar to that of Suits and the Appellant/Applicant is to follow the same steps as the Plaintiff does.

SPECIAL INSTRUCTIONS TO DEFENDANTS/RESPONDENTS

COURT ATTENDENCE :

Once the Suit/ Appeal/ Revision is fixed for hearing, it is necessary for parties to remain present. If Plaintiff/ Appellant remains absent, his suit/ appeal can be dismissed. If the Defendant remains absent, the court can hear the suit/ appeal exparty against the Defendant/ Respondent and even decree/ order can be passed against the Defendant/ Respondent. There have been many cases where the Defendant initially attended the court, but later stopped attending courts and learnt about the exparty decree only when the bailiff with the help of the police came to take possession.

REDEVELOPMENT : DEMOLITION AND RECONSTRUCTION U/S 16(1)(I) OF MAHARASHTRA RENT CONTROL ACT 1999 INFORMATION FOR LANDLORDS

LEGAL PROVISIONS :

  1. Section 16 (1) of the Maharashtra Rent Control Act, 1999 provides for the various grounds available to Landlords for evicting the tenants from the tenanted premises. Clause (i) provides that the landlord can evict the tenant if the premises are reasonably and bonafide required by the landlord for the immediate purpose of demolishing and such demolition is to be made with a purpose of erecting a new building on the premises to be demolished.

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  2. Section 16(6) : Provides that no decree for eviction shall be passed on the ground specified in clause (i) unless the court is satisfied that

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    • a) The necessary funds for the purpose of erection of new building are available with the landlord,

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    • b) The new building shall contain residential tenements not less than the number of existing tenements, which are sought to be demolished.

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    • c) The necessary funds for the purpose of erection of new building are available with the landlord.

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    • d)The landlord has given undertaking to the effect that estimates of the new building will include premises for each tenants with carpet area equivalent to the area of the premises sought to be demolished subject to a variation of 5% in area, that the new premises will be offered to the tenant in re-erected building, that the work of demolishing the premises shall be commenced within one month and completed within 3 months from the date of recovering possession of the entire premises and that the work of erection of the new building shall be completed by the landlord within 15 months from the said date.

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  3. Section 16(10) : Provides that one suit for eviction on the grounds specified in clause (i) may be filed by the landlord jointly against all tenants occupying the building in which the premises to be demolished are situated.

    4.

DOCUMENTS REQUIRED FOR OBTAINING DECREE U/S. 16 (1)(i) :

THE FOLLOWING DOCUMENTS ARE REQUIRED AT THE STAGE OF HEARING PREFERABILY AT TIME OF FILING OF SUIT :
  • Plans of the proposed new building.
  • Estimates in respect of construction of new building from Architect.
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  • Documents showing availability of finance available with the landlord for constructing a new building (like F.D., shares, bank balances, bank loan documents, project report).
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  • Documents showing existing carpet area of the tenanted premises.
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  • If the landlord is a builder, documents to show that the builder has successfully completed earlier projects.
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  • If the landlord is a partnership firm, then registration certificate of the firm.
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  • For Company, board resolution for filing the suit.
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  • For trusts, a resolution of board of trustees for filing the suit.
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  • Power of attorney and Development agreement etc. if the suit is to be followed by persons other than by the landlords.
  • Title documents if the title of landlord is likely to be challenged.
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  • Correspondences if any exchanged between the parties.
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