HOW LITIGATION BEGIN: THE BASICS

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                                      HOW LITIGATION BEGIN: THE BASICS

Shubham Budhiraja[1]



Criminal law machinery start into motion by filling an FIR or complaint to Magistrate u/s 156(3) thereafter Investigation which followed by submission of final report u/s 173 subject to subsequent filling of report which can be filled till trial starts. The court take cognizance on basis of final report and issue process and thereafter prosecution make deposition of its witness u/s 164 and the court at this stage on basis of material on record frame charges. There is argument on charge order where accused file their written arguments against discharge. The moment there is charge order only then the trial starts. Thereafter there is summoning to the defense and there is cross examination of PW and accused statements u/s 313 CRPC. Summoning made according to 82 and 83 CRPC and lastly followed by Judgment of trial court. The Judgment of trial court is essence of law applied to the facts on basis of evidence.

Civil law machinery starts into motion by filling a plaint or complaint. There is a requirement of cause of action- some bundle of facts giving a right of cause. Unlike criminal trial, there is no requirement of cognizance as such. However there has to be satisfaction of prima facie case at first stage of hearing by plaintiff so that court summons the defendants. The defendant thereafter on receipt of summon has to file written statement within prescribed period. The pleading is plaint and written statement. There may be a case of additional pleading by filling an application which court usually allow by cost. The defendant often file order 7 rule 11 application along-with WS to reject plaint or some defendant instead of filling Order 7 rule 11 application may take preliminary objections in their WS only. Replication or Rejoinder is a subsequent pleading though they are not matter of right and not a part of original pleading. Thereafter there is framing of Issues as per Order 15 of CPC where Issue could be Issue of fact or Issue of law but where there is an Issue of law which goes on to the Jurisdiction of court then same have to decided by court before determining the Issue of fact. Once Issues are determined, the trial finally started. The Issues in civil case is similar to charges framed in Criminal case however the burden of proof in former is different from burden of proof in latter. Also, there is no concept of Discharge application in civil litigation unlike Criminal. Thereafter there is summoning and attendance of Witness in civil as per Order 16 CPC. The summoning and attendance of witness in CRPC is managed through Section 82 to 86 CRPC where there is consequence of attachment order also after declaration of proclaimed offender. Once witness are been called, they are examined, cross examined and re-examined as per Order 18 CPC read with provisions of Evidence law and finally there is a Judgment which finally determine the controversy between the parties. Thereafter the situation of enforcement of this decree which is in accordance to Order 21 CPC r/w Section 36 to 74. There may be a situation where plaintiff applies for attachment before Judgment as well as per Order 38 CPC. The filling of suit is a natural right but filling of appeal is not a natural but creation of statute.  In duration of all these stages, there may be miscellaneous orders passed and many revisions may be filed against it if it is not appealable.

 

This article meant only for academic purpose and should not be construed as a professional or legal advice. The author reserve all rights against creation of this work and any breach to the authors right might invite appropriate actions in accordance to law in force in India.


[1] Associate company secretary and final year law student from faculty of law, University of Delhi

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