June 16

Impleadment of Necessary Party ….The law

Order 1 Rule 1 the CPC lays down who can be joined as plaintiff and Order 1 rule 3 lays down who can be Joined as Defendants.

Order 1 Rule 1 : The rule states that all person can be joined in a suit as plaintiff where right to relief in respect of or arising out of the same transaction is said to exist in this person whether jointly severally or in the alternative and if a suit is instituted a conman question of fact or law would arise. Orider 1 Rule 3 gives the same provision with regards to Defendants . In a civil suit the following person can be joined as Plaintiff or Defendants :

a) Parties allowed by Order 1 Rule 1 or Order 1 Rule 3 in case of defendants

b) Necessary Parties

c) Proper Parties

Misjoinder: A misjoinder is a situation where parties are joined who are neither parties allowed by Order 1 Rule 1 Or Order 1 Rule 3 nor Necessary or Proper Parties.

Non Joinder : A Non Joinder is a situation where a party who is a necessary party is not joined . It is often taken as a preliminary objection which affects the maintainability of the suit

Order I Rule 10 of the CPC reads as under:

10. Suit in name of wrong plaintiff.— (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.—The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended.—Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

Necessary Party and Proper Party

A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.

A necessary party is a person who ought to have joined as a party and in whose absence no effective decree could be passed at all by the court. If a necessary party is not impleaded, the suit itself is liable to be dismissed. A proper party is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff.

Principles governing disposal of an application for impleadment:

The broad principles are:

1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.

2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.

3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

4. If a person is not found to be a proper or necessary party, the does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.

5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board and who files application for being joined as party within time of his acquiring knowledge about the pending litigation. Vidur Impex and Traders Pvt. Ltd. V. Tosh Apartments Pvt. Ltd., (2012) 8 SCC 384.

The author is a pracisting lawyer and can be contacted at lawyer.soniasaini@gmail.com

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May 20

Steps to Incorporate a company in India

Here are 10 steps for incorporating a new company in India for aspiring entrepreneurs.

1. Apply for DIN ( Director Identification Number)

Firstly you need to apply for DIN no. of Persons, who are supposed to be appointed as first Directors of the company.

2. Apply for DSC ( Digital Signature Certificate)

Simultaneously you can apply for DSC in the name of any one of the proposed Directors of the company.

3. Preparation of FORM 1A

After application for DIN and DSC, next step is preparation of FORM 1A for name approval. For that 5 names are required. You also need to fix the main Object of the company after that you can draft the same main object as per law.

4. Application to ROC for Name Availability

After drafting main Object and fixation of name next step is to apply for name availability to ROC portal by E Filling. After Filing ROC will Check the Name Availability and give his reply accordingly.

5. Drafting of Memorandum of Association and Articles of Association of the company

After name approval from ROC next Step is drafting of Memorandum and Articles of Association of the company.

6. Payment of Stamp Duty on Memorandum and articles of association of the company

After preparation of all documents you need to pay applicable Stamp Duty on all documents i.e. Memorandum, Articles of association, Letter of Authority and first page of Form 1.

7. Filling of forms to ROC portal

After Drafting of Memorandum and Articles of the company you are required to file

a. Form 1 – For application for Incorporation of the company

b. Form 18- For notice of situation of Registered office of the company

c. Form 32- For providing information about the Directors of the company

At this stage DIN of all Directors must be approved and these forms are uploaded from the portal of Registered User Only

8. Payment of ROC filling fees

After filling of Forms Payment challan will be generated you need to pay the same for approval of forms.

9. Verification of documents and forms by ROC office

After Payment of all duties ROC office verifies the documents and forms, After verification, ROC may suggest some changes in documents. If you getting it done through Company Secretary then you need to issue letter of authority in their name by promoters of the proposed company.

10. Certificate of Incorporation

After verification, when registrar of Companies are satisfied then it will issue Certificate of incorporation to registered office Address of the company by Speed post.

The author is a pracisting lawyer and can be contacted at lawyer.soniasaini@gmail.com

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May 19

EXEMPTION FROM FILING ORIGINAL DOCUMENTS IN COURT

The law regarding the mandatory principle of filing original documents and exemptions in filing the same can be traced by a combined reading of the provision of the Civil Procedure Code, 1908 and Indian Evidence Act 1872. Order 7 Rule 14 of The Code of Civil Procedure lays down that “where a plaintiff sues upon a document or relies upon a document in his possession or power in support of his claim, he shall enter such documents in a list and present the same at the stage of filing and he would at the same time deliver the document and a copy thereof”[1]. The order further goes on to state that if the document so needed is not in the possession of the plaintiff he would state in whose possession it is[2]and a document which ought to have been produced before the court and if not produced cannot be received in evidence without the leave of the court[3].

Chapter V of the Evidence Act deals with documentary evidence. Section 61thereof lays down that the contents of documents may be proved either by primary or by secondary evidence[4]. As per Section 62of the Evidence Act, primary evidence means the document itself produced for the inspection of the Court[5]. Section 63 of the Indian Evidence Act, 1872 states that secondary evidence means and includes 1) Certified copies given under provisions hereinafter contained 2) copies made from original by mechanical processes which in themselves ensure accuracy 3) copies made from or compared with original 4) counterparts of documents against parties who did not execute them and 5) oral accounts of documents given by person who saw it[6]. Section 64lays down that documents must be proved by primary evidence except in the cases mentioned in the following Sections[7]. To put the matter briefly, the general rule is that secondary evidence is not admissible until the non-production of primary evidence is satisfactorily proved. But in cases where the original document is not available or cannot be produced before the court then the parties must lead secondary evidence in terms of Section 65 of the Indian Evidence Act[8]. Section 65 of the Indian Evidence Act gives a list of situations where secondary evidence as to the existence, conditions and contents of a document can be given. The list mentions the cases such as where the original is in possession of person against whom it is to be proved, when the original is out of reach of the court, when the person has failed to produce it even after a notice of Section 66, when the document has been admitted in writing by person against whom it is supposed to be proved , when the document is lost or destroyed , when the document is from its nature not easily movable, when the document is a public document , when the document is such of which certified copy is permitted to be filed and when the originals are in numerous accounts [9].

It would be pertinent here to cite the case of Aktiebolaget Volvo and Ors. v. Vs.
R. Venkatachalam and Anr; 160(2009)DLT100 where the question for consideration was whether it is permissible in law to permit a party to a civil suit to file only photocopy of the document and exempt such party from placing the original document on the file of the court and merely to give inspection thereof to the opposite party at the time of admission/denial of documents and at the time of tendering the document into evidence and to put the Exhibit mark again on photocopy on the file of the court.

The Hon’ble judge remarked that sometimes the documents produced before the court may be title documents to the immovable properties of the parties or of financial investments of the parties or as to educational qualifications/experience of parties and which may be irreplaceable qua the parties and loss/damages whereto may depreciate the value of the property/financial investments of the parties[10]. In such cases where the documents are not doubtful the court can allow the parties to file the photo copies and present the original document at the stage of admission denial of documents[11].

Reference is invited to the case of Promila and Ors. v. Hazi Gulam Rasool; 2012IXAD(Delhi)359, wherein the court held

“I am, therefore, of the view that if the provisions of the codified law so permit, it would be expedient to, where the court finds that the original document is such, the loss or damage whereto could cause irreparable loss or inconvenience to a litigant, to allow such original to remain in the safety of its owner/possessor and to allow filing of photocopy thereof only, with a condition on the party to produce the original for inspection as and when required[12].”

Summing up the entire issue a party can be exempted from filing the original documents as required in the case of a plaintiff under Order 7 Rule 14 if he satisfies the court as to his inability to produce the original document and that his case falls within Section 65 of the Evidence Act and the court exercising the discretion in this regard in the light of principles of law and the cases already decided allows his application.

The author is a practicing lawyer at the courts of Delhi and can be contacted at lawyer.soniasaini@gmail.com

[1] Order 7 Rule 14(1), Civil Procedure Code, 1908.

[2] Order 7 Rules 14(2), Civil Procedure Code, 1908.

[3] Order 7 Rule 14 (3), Civil Procedure Code, 1908.

[4] Section 61, Indian Evidence Act, 1872.

[5] Section 62, Indian Evidence Act, 1872.

[6] Section 63, Indian Evidence Act, 1872.

[7] Section 64, Indian Evidence Act, 1872.

[8] Punjab and Sind Bank v. C.S Company and Ors; (2012)2SCC743 (Para 10)

[9] Section 65, Indian Evidence Act, 1872.

[10] Aktiebolaget Volvo and Ors. v. Vs.R. Venkatachalam and Anr; 160(2009)DLT100 (Para 7).

[11] Aktiebolaget Volvo and Ors. v. Vs.R. Venkatachalam and Anr; 160(2009)DLT100 (Para 29).

[12] Promila and Ors. v. Hazi Gulam Rasool; 2012IXAD(Delhi)359 (Para 5 and Para 6).

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April 16

How to file a suit and the procedures involved

The law dictionary defines a suit as a “proceeding initiated on the production of a plaint in a civil court”. The plaint is a statement of claim filed by the plaintiff who is the person who institutes the suit and has a cause of action to file the same. It is followed by a written statement which is a reply that is filed by the defendant answering the claim of the plaintiff within a period of 30 days as allowed by the Order VIII of Civil Procedure Code. After the written statement has been filed the suit enters the stage of admission denial of documents and the discovery and inspection of documents which is carried out according to the provisions of Order XII and Order XIII of the Code of Civil Procedure.

Then comes the stage where the court proceeds with the suit and determines the real issues involved in the suit in relation to the matter or any of the matters in controversy and the issues are then framed by the court after prima facie examining the witnesses of the parties and examining the evidence and the pleading on record. This stage of the suit is termed as the “framing of issues” and is governed by Order XIV of the code of civil procedure. The issue framing stage is then followed by evidence taking stage where the evidence of the witnesses, parties and the documentary evidence available before the court or which has been produced by the parties are examined by the court . The evidence taking stage is governed by Indian Evidence Act, 1872 dealing with relevancy of facts, the admissions, the manner in which the corroboration and examination in chief and cross examination has to be done and the procedure which has to be followed in this stage has been categorically stated in Order XVI of the Civil Procedure Code which with the attendance of witnesses and Order XVII which deals with hearing and examination of witnesses.

It is then followed by a judgment and decree by a court which has to be made in accordance with the Order XX of Code of Civil Procedure. The distinction between the judgment and decree has been mentioned in the definition clause but stating it very precisely a decree is a formal expression of the court with regards to an issue or issues and a judgment is the decision which is given by the judge of the grounds of an order or decree. The code of civil procedure defines an order in negative terms as any decision or adjudication of the court which is not a decree.

The proceedings in a civil suit though comes to an end after the judgment has been delivered but in practice the procedure is then followed by the procedure of getting the decree executed by the person in whose favour the decree has been passed who is called the decree holder in law. The process of execution of decree can be initiated in the court which passed the decree or the court to which the decree is sent for execution. The manner and the procedures regarding the execution of different types of decree be it a money decree, decree of specific performance is executed by the court according to the provisions of order XXI read with Section 36 to Section 50 of the code of civil procedure.

The entire process of instituting the suit to the examination of witnesses, the delivery of a judgment and decree and then the execution is carried out according to the different orders and rules and section as laid down under the provisions of the Code of Civil Procedure which is the ultimate manual to understand how the suit is instituted and the various stages through which a suit goes till the time the issues are settled and adjudicated by the court and the decision of the court is given the form of a judgment or a decree.

The author is a practicing lawyer at the courts of Delhi and can be contacted at lawyer.soniasaini@gmail.com

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