Institution of Suit, Section 26 read with Order IV, CPC, 1908

INSTITUTION OF SUIT

Firstly, lets understand the difference between the suit and plaint.

The key difference between a plaint and a suit lies in their roles and stages in legal proceedings. A plaint is the initial document filed to commence a legal action. In contrast, a suit encompasses all proceedings that take place after the plaint is filed with the court or relevant officer. In simpler terms, the plaint initiates the process, while the suit refers to the entire sequence of actions that follow the filing of the plaint.

For the institution of suits, we have section 26 and Order IV of the Code of Civil Procedure, 1908.

Section 26.   Institution of suits.

[(1)] Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

[(2) In every plaint, facts shall be proved by affidavit.]

[Provided that such an affidavit shall be in the form and manner as prescribed under Order VI of Rule 15A.]

COMMENTS–

Clause 1 of the section stipulates that a suit can be instituted only by the presentation of a plaint. Clause 2 further provides that the facts in the plaint must be proved by an affidavit. However, this is likely a legislative oversight, and the provision should be interpreted to mean that the facts must be supported by an affidavit. The term “proved” does not imply that the facts are conclusively established. An affidavit, by itself, cannot be treated as evidence; rather, the facts pleaded in the plaint must be substantiated with independent evidence during the trial.

Additionally, as per Section 1 of the Indian Evidence Act, 1872(now section 1 of BSA, 2023), an affidavit is not regarded as evidence. However, if a false affidavit is submitted, it may be used as evidence under Section 193 of the Indian Penal Code (IPC) (now, Section 229 BNSS), which deals with the punishment for false evidence.

ORDER IV- INSTITUTION OF SUITS

1. Suit to be commenced by plaint

(1) Every suit shall be instituted by presenting a 1[plaint in duplicate to the Court] or such officer as it appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.

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

2. Register of suits

The Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year according to the order in which the plaints are admitted.

COMMENTS

As per this Order, if the plaint is not filed in duplicate or if the requirements of Order VI and Order VII are not fulfilled, then the plaint will not be considered as duly instituted. Rule 2 of this Order states that every court maintains its own register, in which it will be entering the details of the various suits that are filed in the court.

The comments are written by Sarika Mittal.

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