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How to file a Civil Case
Law is the most important aspect of human life as it regulates our behavior or conduct. The society that we live in has developed a complex set of laws or body of rules to govern and regulate the behavior of the members of the society. Law governs every aspect of our life, right from birth to death, and from public to private. Law can be classified into various categories for the purpose of administering and governing the behavior and conduct of the members of the society. Law can be broadly classified into various categories, like Public and Private law, Civil Law and Criminal Law.
Public law as the term itself suggests is mainly related to the laws that govern the relationship between the citizens and the State and criminal law is part of public law as it governs anti-social or wrongful behavior of the citizens and the Government laws down the law regarding what is considered anti-social or wrongful behavior and it also punishes those who break the law. On the other hand, Private Law is related to the rights and duties of individuals toward each other and the only way in which the state is involved in private law is to provide a mechanism for individuals to resolve their disputes.
In order to understand the procedure to file a civil case, it is important to understand the nature of civil law and how it is different from criminal law. It is important because just as the nature of both criminal and civil law is different, the procedure followed and other technicalities are different in criminal law and civil law. There is a fundamental difference in the purpose, procedures, and terminology in each of these branches of law. Some of the difference are, in a civil case the person who has suffered or incurred loss initiates the legal proceedings in the court and in a criminal case even though it’s the victim files a complaint, the legal proceeding is initiated by the State, because a crime or an offence is a wrong not just against one individual but it is against the society. It’s the State’s obligation to protect the members of the society and prevent criminal activity and since a crime is against the society, the criminal case will be the state versus the criminal or the accused. In a civil case, it is an individual against another individual.
The purpose of a civil case is to resolve the dispute between two individuals and to remedy the wrong, which has resulted in the suffering of one individual who is a party to the civil case. On the other hand, the purpose of a criminal case is to punish the criminal or offender and deter others from committing the same crime or offence. The individuals involved in a civil case are known as petitioner and respondent and in a criminal case it is the State (whichever state where the crime has occurred) and the person who is accused of committing the crime is known as the accused. The courts, which have the authority to hear and decide a criminal case, are usually the Sessions or Magistrate Courts and in case of a civil case the courts, which have authority, are the District and Civil courts. In a civil case, the person who has suffered due to the actions of the other person is compensated in monetary or material terms if the judgment is in his favour. But in a criminal case, the accused if found guilty is punished and no compensation is provided to the victim, except in acid attack cases. The above-mentioned are only a few differences between civil and criminal case.
Any law, be it civil or criminal have two more kinds of laws and they are substantive law and procedural law. Substantive law deals with the rights and liabilities and procedural law lays down the procedure to be followed to enforce these substantive rights. Therefore in both civil and criminal law, there are substantive as well as procedural laws. In India, the substantive law in criminal law would be the Indian Penal Code, 1860 and the procedural law is the Code of Criminal Procedure, 1973. While in civil law there are various substantive laws, like the Indian Contract Act, 1872 or the Transfer of Property Act, 1882, the procedural law is the Code of Civil Procedure, 1908. Therefore the law regulating the procedure to file a civil case can be found in the Code of Civil Procedure.
Some of the common civil cases filed in the Indian courts are, cases where two parties have entered into a contract, one party fulfills his/her obligation and the other party doesn’t, partitions suits are filed when there is a dispute regarding the manner in which a property has to be divided amongst the parties, or if a tenant is not vacating the premises even after multiple notices by the owner, then the owner can approach the civil court to get the tenant evicted from the premises.
It goes without saying that the first step before filing a civil case is to consult the best lawyer or best civil advocate in Bongaigaon who is an expert and is experienced in civil matters. The lawyer or advocate will provide you the best advice or recourse in your case and will also assist you in preparing the necessary documents that are required to file a civil case. It is very important to find good lawyers or advocate, as he/she will be representing you in Court. Most people approach or find good advocates by word of mouth from friends or family. But sometimes even friends and family will not be able to help and in such a situation it is a good idea to do some research online regarding the best lawyer or best advocate in Bongaigaon in civil matters. But people are quite hesitant these days to rely on the information online due to fake or false information. Under such circumstances reliable websites like Legal Resolved come to the rescue, they not only provide information regarding the best civil lawyer or best civil advocate in Bongaigaon in a particular field and city, they also publish articles which will be useful for general information as well as for your case.
After the consultation with the lawyer, the next and most important step before preparing the documents is to determine which Court to file the case or approach. This is very important because if the Court that does not have jurisdiction to decide the matter passes an order or decree giving its decision in such an order or decree, then the validity of such a decree or order is questionable and may be considered null and void. Jurisdiction means, the authority of the Court to decide over any particular matter. The law relating to the jurisdiction of civil courts to decide civil matters is laid down under section 9 of the Code of Civil Procedure Code. The Hierarchy of Courts is such that, the Supreme Court is the top most, then comes the High Court of respective States, after this comes the District Court then the Court of Additional Judge, and then comes the Court of Civil Judge Senior and Junior Division and the lower most court is the Court of Munsif. In Metropolitan cities there City Civil Courts and Courts of small causes.
The rule of law is that the lower most court has to be approached, so individual filing the civil case cannot directly approach the High Court or the Civil Court unless such an individual is filing a writ petition. A writ petition is filed when a person’s fundamental right as laid down in the Constitution is violated or will be violated. The Civil Courts in India have been categorized based on the jurisdiction, like Subject Matter jurisdiction, or Territorial jurisdiction, Pecuniary jurisdiction and Appellate jurisdiction. The Appellate jurisdiction is vested with the High Courts and the Supreme Court. The District Court has both original and appellate jurisdiction. Subject Matter jurisdiction is when certain courts are vested with the power to decide cases only to a particular subject matter and Territorial jurisdiction is the power vested with the court to decide matter only within the geographical limits. For example, if the case is related to a property dispute and the property is situated in Bangalore then the City Civil Court of Bangalore will have the jurisdiction to decide the case. Pecuniary jurisdiction is the power vested with the Court to decide matters within the monetary limit and this jurisdiction depends on the value of the suit or case. For example, the small cause courts in Maharastra have a pecuniary jurisdiction of Rs. 25, 000. So any suit under the value of Rs. 25, 000 can be heard and decided by the small causes court in Maharastra. The pecuniary jurisdiction of small causes courts and other civil courts vary from state to state, usually the website of High Court of every state will provide information regarding territorial and pecuniary jurisdiction.
Section 20 of the Code of Civil Procedure deals with territorial jurisdiction. Usually, the territorial jurisdiction of a court will depend on the kind of cases, if the case is regarding partition, mortgage, and recovery of an immovable property then the case should be filed in the Court which is in the area where the property is situated. If it’s a movable property and it’s in the possession of the opposite party or defendant then the case should be filed in the Court which is in the area where the defendant is living or residing or carrying on his business. According to section 20, any other suit can be filed where the opposite party or defendant is residing or carrying on his business or the place where the dispute arose or a part of the dispute arose.
Once this is done then your plaint has to be drafted. A plaint is nothing but a written complaint, with a brief detail of the dispute between you and the other party and the names and addressed of both the parties. At the end of the plaint, the remedy you are seeking should be included. The provision of law regarding the contents of a plaint is laid down under Order VII Rule 1 of the Code of Civil Procedure. Along with the plaint, another document called Verification should be prepared, in this document, the person filing the plaint states that whatever is said in the plaint is true and correct.
The next step is to sign the Vakalatnama, this is a document is to authorize your advocate to represent you in the Court. The law allows event the party filing the case to represent his or her case personally in Court without an advocate and in such a case Vakalatnama need not be signed, as the person is not authorizing another person or advocate to represent him in the Court. Generally the Vakalatnama has a few general terms like, the client will not hold the advocate responsible for any decision, and that the client will bear the expenses incurred during the proceedings, and that the client is free to discharge the advocate any point/stage during the proceedings, and that the advocate can retain the papers related to the case if the fees are not paid.
Then the plaint has to be filed before the Chief Ministerial Office and the appropriate Court fees and processing fees has to be paid at the time of filing and different amount of court fees is prescribed for different documents. Then the case or suit is numbered and date is given for the first date of the hearing. On the first date, the Court will decide whether to admit or not admit your case. If the case is admitted then a notice will be sent to the opposite party and the next date of hearing will be given. When the notice is issued to the other party, the person filing the plaint or the plaintiff needs to pay the requisite amount of procedure fee and file two copies of the plaint for the other party or defendant and if there are more than one defendants then two copies of the plaint for each defendant. Of these two copies of the paint, register post and the other one is sent by ordinary post.
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