a suit which commenced by
presentation of plaint
2(3) “Decree-Holder” means any person in whose favour a decree has been passed or an order capable of execution has been made.
2(5) “Foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government;
2(6) “Foreign Judgment” means the judgment of a foreign Court;
2(8) “Judge” means the presiding officer of a Civil Court;
2(9) “Judgment” means the statement given by the Judge on the grounds of a decree or order.
2(10) “Judgment-Debtor” means any person against whom a decree has been passed or an order capable of execution has been made.
2(11) “Legal Representative” means a person who in law represents the estate of a deceased person, and includes any person who intermediates with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
2(12) “Mesne Profits” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;
The owner of property or any other person who is entitled to have possession of property has a right to the possession of his property and when such person is deprived of such a right by any other person, person, then he is entitled not only to receive back possession of that property but also to damages for wrongful possession from that person.
“Mesne Profits” of property means those profits which the person in wrongful possession of such property actually received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.
The mesne profits are compensation, which is penal in nature. A decree for mesne profits is to compensate the person who has been kept out of possession even though he was entitled to possession thereof. Against whom Mesne profits can be claimed?
The mesne profits can be claimed with regard to immoveable property only. Generally, person in wrongful possession and enjoyment of immoveable property is liable for mesne profits. A decree for mesne profit can be passed against a tresspasser or a person against whom a decree for possession is passed, or against a mortgagee in possession of property even after a decree for redemption is passed or against a tenant holding over at will after a notice to quit has been served him.
To ascertain and provide mesne profits it is not what the plaintiff has lost by being out of possession but what the defendant gained or might reasonably and with ordinary prudence have gained by such wrongful possession. Since interest is an integral part of mesne profits, it has to be allowed in the computation of mesne profits itself.
2(14) “order” means the formal expression of any decision of a Civil Court which is not a decree;
2(16) “prescribed” means prescribed by rules;
2(18) “rules” means rules and forms contained .in the First Schedule or made under section 122 or section 125.
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This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. This article focuses primarily on how a civil suit can be instituted under the procedural laws of Civil Procedure Code, 1908 (hereinafter as CPC, 1908). The article lays down a general pattern of a general civil suit and deals with the provisions related to the same under CPC, 1908.
The term ‘suit’ has not been defined in the CPC, 1908. Generally, it is understood as a proceeding that commences upon the presentation of a plaint in a civil court. A plaint is a statement in writing of a cause of action in which the relief claimed is set out in detail. The Black’s Law Dictionary defines a suit as the proceeding initiated by a party or parties against another in the court of law.
Ordinarily, there appears a minute difference between the suits filed under the CPC, 1908 and the other suits filed under various legislative enactments. The suit filed under CPC, 1908 has a particular format and it is a civil proceeding instituted by presenting a plaint whereas in other suits e.g. matrimonial are generally instituted by presentation of a petition by either party to the suit.
Provisions regarding institution of a suit are specified under Section 26 and Orders I, II, IV, VI, VII.
There are four essentials of a suit which are explained as follows:
In a suit, there must be at least two parties i.e. the plaintiff and the defendant. There is no bar as to the maximum numbers of plaintiffs or defendants. There are two categories of parties viz. necessary party and proper party. The significance of the necessary party in a suit is that the presence of such a party is vital to the constitution of the suit and the relief is sought against such party and without such party, no effective order can be passed. A proper party is one in whose absence an effective order can be passed, nonetheless whose presence is necessary for a complete and final decision on the question involved in the proceeding.
There must be a subject matter i.e. a set of facts which have to be proved to enable the plaintiff to get the relief claimed by him. It includes the course of action. The subject-matter can be movable as well as immovable property and the details regarding the same has to be given in the plaint by the plaintiff for a successful filing of his plaint and getting the relief claimed in the plaint.
It contains a set of facts or circumstances that the plaintiff is required to prove before he can succeed. It serves as the foundation of the suit. It includes all the essential facts which constitutes the right of a plaintiff and its alleged infringement and thus it is an antecedent to the filing or institution of any suit. The facts must be mentioned in clear and unambiguous terms. A person is a party to the suit if there lies a cause of action against him. It is important to note that every plaint must disclose a cause of action or some act done by the defendant else the Court is under a duty to reject such a plaint as per Order 7, Rule 11.
Relief is a remedy in legal sense for wrong accrued to the plaintiff. No court will give relief unless it is specifically claimed by the parties to the suit. There are two types of reliefs: Specific and Alternative.
There are various stages of a suit viz. institution of suit or commencement of suit, service of summons, written statements, first hearing and framing of issues, production of evidence and final hearing, arguments, judgment, preparation of a decree and its execution. The focus of this article is to deal with the first stage i.e. Institution of a suit. The institution of a suit consists of the following steps:
It is noteworthy that the term plaint is not defined under CPC, 1908. According to the dictionary meaning, plaint is a statement in writing on grounds of complaint made to a court of law and asking for redress of the grievance. Order VII deals with the format of a plaint and contains various rules.
Pleadings are defined as pleadings as “a plaint or a written statement” in Order VI Rule I of the CPC, 1908. Plaint is the first step to initiate the filing of a suit. The document containing various facts and circumstances regarding the Plaintiff’s grievance is filed by the plaintiff after hiring a counsel and such a document is called a plaint.
The Court may, at any stage of the proceedings, allow either party to alter or amend its pleadings in such manner and on such terms as may be just (Rule 17 of Order VI of CPC, 1908), and all such amendments shall be made when it is necessary for determination of real question in controversy or is just and proper or is necessary in the interest of justice.
The place of suing plays a major role in a suit as it directly deals with the authority of a court to pass a decree. Choosing a court depends upon the contents of plaint one is filing. It refers to the jurisdictional aspect. Section 9 of CPC, 1908 provides that the Courts shall have jurisdiction to try all suits of a civil nature except in suits of which their cognizance is either expressly or impliedly barred. The jurisdiction of a court is decided by the legislature and the parties to a suit, by the framing of the plaint, cannot interfere into the extent of this jurisdiction. But the parties can choose a court amongst various courts if they have the same jurisdiction. In Mt. Ananti vs Chhannu And Ors AIR 1930 All 193, the Court held:
“The Plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts, he will get his relief from the forum chosen.”
Section 15 of Civil Procedure Code provides that every suit shall be instituted in the Court of the lowest grade competent to try it. On the filing of the suit, the Court must ascertain whether it has jurisdiction to entertain it. In cases where the jurisdiction is challenged by filing a petition by the defendant(s) to reject the plaint under Order VII Rule 11 CPC. The want of jurisdiction is merely an irregularity of the proceedings and the Court has the power to rectify it.
The moment the plaint is filed it leads to the institution of the suit as it is provided in Section 26 of CPC, 1908 provides that every suit under shall be instituted by the presentation of a plaint or in such other manner as may be prescribed and the contents of such plaint shall be proved by an affidavit as per the amendment of 2002. Thus, a plaint is rightly filed by complying with the provisions of Order IV Rule 1 of CPC, 1908. The plaint may be presented either by the affected person himself, or by his advocate or by his recognised agent or by any person duly authorised by him.
Ordinarily, the presentation of a plaint must be on a working day and during the office hours. But there is no rule regarding it be made either at a particular place or time. A judge, therefore, may accept a plaint at his residence or any other place even after office hours, though he is not bound to accept it. If not too convenient, the judge must accept the plaint, if it is the last day of limitation.
Rule 2 of Order IV provides that 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 after the Court fees have been paid correctly in the Court having pecuniary Pecuniary jurisdiction specifies the monetary jurisdiction of the Court and divides the Courts on a vertical basis. It is different for different district Courts in various states e.g. Currently, the pecuniary jurisdiction of the Delhi courts is · Suits amounting to Rs.1 – Rs.20, 00,000 and territorial jurisdiction. Territorial jurisdiction deals with the area wise jurisdiction of various courts which is decided by taking numerous factors into consideration.
Such entries shall be numbered in every year according to the order in which the plaints are admitted. Thus, after the presentation, the suit will be numbered along with being scrutinised by the Stamp Reporter.
Once all these steps have been taken care of, a suit is successfully instituted before a Civil Court.
NOTE: A suit will only be instituted successfully if it is not hit by the provisions of Res Sub Judice i.e. the matter is pending before a court already who is capable of executing a award which is asked for in new plaint OR else it is not hit by Res Judicata i.e. the matter has been already decided by a Court in a case involving the same parties in the same cause of action.
The journey of a suit from filing of plaint to its institution in the court is dependent on numerous factors. All these conditions are provided in the CPC,1908 in a proper procedural framework. Such procedural formalities point out to the exclusivity of CPC, 1908 and due to these, delays are caused in both institution of a suit and passing of a decree in civil suits. The legislators certainly realised this and therefore, there is a provision in CPC, 1908 under Section 89 which provides for the settlement of certain disputes outside the Court through conciliation, arbitration, judicial settlement including settlement through Lok Adalat and mediation. Also, under Order XXXVII there is a provision for Summary Suits which provide quick and efficacious relief. This has certainly led to settlement of disputes through Courts as well as Alternate Dispute Resolution Mechanism which is currently in vogue in India.
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The term ‘suit’ is used to refer to a proceeding by a person(s) against another in a Court where the plaintiff seeks remedy. In short, in CPC, it is a civil proceeding instituted by the presentation of a plaint. Frame and institution of suits are few of the basic requirements to file a suit.
Table of Contents
The provision under Order 2 Rule 2 is based on the principle that a defendant should not be contested twice for the same cause[1].
The principle in this provision is provided to counteract two evils:
In Naba Kumar v. Radhashyam[2], the Privy council had stated ‘the rule that is in question aims to deal with the wrong of splitting causes of action. In a suit the whole of any claim should be mentioned which the plaintiff is entitled and if he omits to sue for any such relief, he is not allowed to claim it in a second suit.
Thus, the object is to prevent filing of a number of suits relating to the same transaction.
Whole of the claim of the plaintiff in respect of a cause of action should be written in every suit. Rule 1 says that every matter in the dispute, shall be finally disposed of, ‘as far as practicable’ to prevent any further litigation.
Here, the expression ‘as far as practicable’, means that the court will see in every case that whether for the plaintiff, it was practicable to frame his suit to include a cause of action which he had omitted or had intentionally relinquished.
In every suit should be included the whole of the claim to which the plaintiff is entitled. If the plaintiff did not include or intentionally relinquished any portion of such claim then he won’t be afterwards permitted to file a suit in respect of such portion that was omitted or relinquished. In Kunjan Nair v. Narayanan Nair[3], it was also held that the true object of law would not stand fully served by holding that the provisions under Order 2 rule 2 be applied only if the previously filed suit is disposed of and does not apply in any situation when a subsequent suit is filed during the pendency of the previous suit. This rule will apply to both the situations[4].
Order 2 provides for prohibition of splitting of claims as:
Talking about res judicata, it differs from the above provision as:-
Following three conditions must be satisfied for the applicability of Order 2:-
The joinder of claims is provided in provisions of rules 4 and 5.
Rule 4 says that in any suit for the repossession of an immovable property, a plaintiff is not entitled to join any claim without the leave of the court. But there are certain exceptions to this rule in which plaintiff can join a claim even without the leave of the court-
Rule 5 deals with suits by or against: executors, administrators and heirs. No claim by or against these persons, in their representative capacity, may be joined with claims by or against them personally in the same suit , except in following cases-
The objective behind such provisions is to prevent a representative from uniting the assets of his testator with his own properties.
Rules 3 and 6 deal with the provisions of joinder of causes of action.
Rule 3 allows joinder of some causes of action of one suit in certain situations but is subject to the provisions of this Code. It provides for following types of situations:-
1. One plaintiff, one defendant and several causes of action: – In such cases, the complainant may join in the same suit several causes of action. But if in the opinion of the court the joinder of causes of action may cause unsettling or delay in the trial, then the court may order separate trials.
2. Joinder of plaintiffs and causes of action:- In case of more than two complainants and several causes of action , the complainants may join the causes of action in a single suit against the defendant if they are interested jointly. But they may be joined on the fulfillment of following conditions[10].
If these conditions remain unfulfilled, and the plaintiffs are not jointly interested then the suit will be bad for misjoinder of plaintiffs and causes of action.
3. Joinder of defendants and causes of action: – In case of one complainant and more than one defendants and several causes of action, the complainant may join in a single suit several causes of action, if the defendants are jointly interested in the causes of action, provided following conditions are fulfilled[11].
If defendants have been joined in cases where the causes of action are separate and the right of aid claimed is not based on the same act or transaction or any of the above conditions remain unfulfilled, then it will be a misjoinder of defendants and causes of action.
4. Joinder of plaintiffs and defendants; and causes of action :- In case of two or more plaintiffs, defendants and several causes of action, the plaintiffs may unite such causes of action in a single suit when all the plaintiffs are jointly interested and also the defendants are interested in the same.
In addition, the following must be noted with regards to Joinder of Parties:
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The provisions for institution of suit is provided u/s 26 and order 4 of the code. Order 4 deals with the parties to a suit, addition, deletion and substitution of parties and the objection as to non-joinder and mis-joinder.
A suit is instituted on the presentation of a ‘plaint’. The expression ‘plaint’ has not been defined in the Code but it means the exhibition of an action in writing[12].
Section 26 and Order 4 Rule 1 provide that every suit must be instituted by the presentation of a plaint in duplicate or in any other manner that may be prescribed by the Code, by the plaintiff himself or his representatives.
There is no rule as to a particular place or particular time of presentation but a plaint shall be presented before the court or to such officer as the court appoints[13]. Generally, it is presented on the working days and during the office hours but a judge may accept it at his residence or at any other place, any time. Though, the judge is not bound for such an acceptance, but if it is the last day of limitation and is not too inconvenient for him, he shall accept it.
After acceptance, the particulars are to be entered in a book called register of suits[14]. The particulars to be entered are: parties to the suit, cause of action, jurisdiction of court, valuation, etc. After presentation, the plaint is scrutinized by the stamp reporter and the defects, if any, are removed by the plaintiff or his advocate and then the suit will be numbered.
Order 33 deals with the suits by ‘paupers’. The object is to make it possible for indigent persons to institute any suit without payment of any court fees. Rule 1 gives the definition of an indigent person, as:
Rule 2 provides for the following particulars that are required to be contained in an application to sue by an indigent person:-
Such application shall be presented by the applicant unless exempted by the court and in case of two or more plaintiffs, any of them can present it [15].
Following are the cases in which the plaint shall be rejected[16]:-
The rejection order is appealable[17].
An inquiry to examine the applicant and his property may be ordered by the court or the court may adopt the inquiry made by the Chief Ministerial Officer[18].
If permission is granted to sue as an indigent person, the suit shall proceed in the ordinary manner, only the difference being the applicant is not required to pay the court fees.
If permission is rejected, the court shall grant time to the applicant to pay the fees[19] and such order shall be a bar to a subsequent similar application but may sue in an ordinary manner.
If the indigent person succeeds in the suit, the court may recover it from the party and if he fails in the suit, the court shall order the plaintiff to pay required fees and costs[20].
Order 32 provides for the procedure of suits to which minors are parties, object being to protect the interests of minors.
Rule 3 provides that in a suit against a minor, the court shall appoint a guardian ad litem which shall continue in all the proceedings and also in an appeal or revision and execution of a decree till he is terminated as a guardian.
Any decree against a minor without guardian or next friend is null and void. Also ,it is not illegal or be cancelled only on the basis that such next friend or guardian has an interest in subject matter adverse to that of the minor. But if the minor is prejudiced by such reason then it is a valid ground for setting aside such decree[21].
Rule 4 provides that any person who has attained majority and is of sound mind can be appointed as a guardian or next friend provided his interest is not adverse to that of the minor. In absence of such a person, the court may appoint an officer of the court to be the guardian.
Rules 5-7 provides for the powers and duties of a guardian or next friend as:-
Any settlement without the permission of the court is voidable against all parties. If the compromise is avoided by the minor then it ceases to be effective[22].
Rules 8-11 provides for the retirement, removal or death of the guardian or next friend. Before getting a fit person for substituting him and giving security, the next friend or guardian cannot retire. The court may remove a next friend or guardian, if it is satisfied that:-
On such retirement, removal or death, the proceedings in the suit shall be stayed until a next friend or guardian is appointed.
Rules 12-14 provides for what happens when the minor attains majority. On attaining majority, the minor plaintiff may adopt any of the following:-
There are two different views in this regard. First view is that a suit against a person who is dead when the suit was instituted is non est and has no legal effect; second view is that such suit is not void ab initio and can be continued against legal representatives of the deceased defendant. Thus, a suit filed against a dead person by the plaintiff without the knowledge about the death of the defendant and takes prompt action as soon as he comes to know about it, then he cannot be deprived of his remedy against the legal representatives of the deceased defendant.
[1] Deva Ram v. Ishwar Chand, AIR 1996 SC 378.
[2] AIR 1931 PC 229.
[3] AIR 2004 SC 1761.
[4] Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) ltd., (2013)1 SCC 625.
[5] Inacio Martins v. Narayan Hari Naik, (1993)3 SCC 123.
[6] Arjun Lal v. Mriganka Mohan, AIR 1977 SC 207.
[7] State of M.P. v. State of Maharashtra, AIR 1977 SC 1466.
[8] Sidramappa v. Raja Shetty, AIR 1970 SC 1059.
[9] Hare Krishna v. Umesh Chandra, AIR 1921 Pat 193(FB).
[10] The Code of Civil Procedure,1908,Or.1 R.1.
[11] The Code of Civil Procedure,1908,Or.1 R.3.
[12] Assan v. Pathumma, ILR(1899)22 Mad 494.
[13] Kalyan Singh v. Baldev Singh, AIR 1961 HP 2.
[14] The Code of Civil Procedure,1908,Or.4 R.2.
[15] The Code of Civil Procedure,1908,Or.33 R.3.
[16] The Code of Civil Procedure,1908,Or.33 R.5.
[17] The Code of Civil Procedure,1908,Or.43 R.1(na).
[18] The Code of Civil Procedure,1908,Or.33 R.1A.
[19] The Code of Civil Procedure,1908,Or.33 R.15A.
[20] The Code of Civil Procedure,1908,Or.33 Rr.11,11A.
[21] Ram Chandra v. Man Singh, AIR 1968 SC 954.
[22] Kaushalya Devi v. Baijnath Sayal, AIR 1961 SC 790.
BY KU RICHA SINGH| LAW COLLEGE DEHRADUN, UTTRANCHAL UNIVERSITY
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Taking a glance at the C.P.C, Sec 26 read with Order 4 specifies that a suit has to be instituted by presenting of the plaint. Presentation of plaint is subject to Order VI and Order VII under the ...
Introduction. The expression plaint has not been defined in the Code of Civil Procedure, 1908 (CPC).It can be said to be a statement of claim, a document by presentation of which the suit is instituted. Its object is to state the grounds upon which the assistance of the court is sought by the plaintiff.. Order VII of CPC contains the provision in relation to plaint.
Presentation of Plaint. Order VII Rule 9 outlines the procedures for admitting a plaint for institution of suit under CPC. According to this rule: The court will issue orders for serving summons on the defendants as per the guidelines in Order V, Rule 9.
Furthermore, there are certain documents that are to be attached to the plaint and Order VII Rule 14 provides for the same. How is a suit instituted. Section 26 of the CPC deals with the institution of the suit. It clearly stipulates that "every suit shall be instituted by the presentation of a plaint or in such other manner as may be ...
ta. ion, Examination and Registration etc. of Plaints7. A plaint, along with a copy thereof for the purpose of drawing up of a decree at the relevant stage, may be presented at any time during the Court hours to the Clerk of the Court or to such officer as the Court appoints in this behalf under Order IV, rule 1, Civil Procedure Code, or in.
Order 7: Plaint. 1. Particulars to be contained in plaint.—. The plaint shall contain the following particulars:—. (i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits. 2.
Presentation of plaint. Order VII Rule 9 specifies the procedures for admitting a plaint. It states that the court orders that the summons be served on the defendants in accordance with Order V, Rule 9, and that the plaintiff must submit as many copies of the plaint as there are defendants, along with the prescribed fee for serving the summons ...
A well-drafted plaint provides a clear and concise narrative of the plaintiff's claims, aiding the court in understanding the dispute and the relief sought. Conversely, a deficient plaint can lead to confusion, delay, and even injustice. Plaint is discussed in Order VII of the Code of Civil Procedure (CPC), 1908.
Order VII Rule 11 provides: "Court shall reject a plaint: (a) where it does not disclose a cause of action; (b) where the relief... The presentation of a plaint, i.e. the pleading of the plaintiff ...
Plaint order 7 CPC Plaint is defined in order 7 of CPC. Rules 1 to 8 of Order 7 relate to particulars in a plaint. Rule 9 lays down the procedure for plaint being admitted. Whereas rules 10 to 10-B provide for the return of plaint, power of Court to fix a date of appearance of parties, and power of the appellate Court to transfer suit to the proper Court and rules 11 to 13 deal with the ...
Order VII of the Code of Civil Procedure is all about the "plaint." In this order, you'll find different rules that cover various aspects of what should be in a plaint. ... Section 26 of the Code of Civil Procedure is important because it says that every lawsuit has to start with the presentation of a plaint in CPC or in a way that the ...
According to Order VII Rule 10 (1), subject to the provisions of Rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. Thus, according to Order VII Rule 10 (1) of CPC, a plaint is returned on the sole ground of lack of jurisdiction with the concerned court.
Order 7 is related to the format of Plaint. According to Rule 1 the particulars to be contained in a plaint are: a) the name of the Court in which the suit is brought; b) the name, description and place of residence of the plaintiff; ... Presentation of the Plaint: Commencement of the Suit:
Order 7 CPC Description. 1. Particulars to be contained in plaint The plaint shall contain the following particulars:? (a) the name of the Court in which the suit is brought; (b) the name, description and place of residence of the plaintiff; (c) the name, description and place of residence of the defendant, so far as they can be ascertained; (d) where the plaintiff or the defendant is a minor ...
1) Presentation of the plaint Order 7 of CPC 1908: 2) Service of summons on defendant (Order 5): 3) Appearance of parties: 4) Ex-party Decree (Order 9): 5) Filing of written statement by the defendant (Order 8):
Supreme Court: Answering a reference the 3-judge bench of RF Nariman, Navin Sinha and Indira Banerjee, JJ has held that if a plaint is returned under Order VII Rule 10 and 10A of CPC, for presentation in the court in which it should have been instituted, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo.. The Court was hearing the reference by a two ...
Order VII, Rule 1 of the Code of Civil Procedure, 1908, prescribes the essential particulars that must be included in every plaint. These mandatory elements encompass: Identification of the court with jurisdiction to hear the cause of action. Comprehensive particulars, including the plaintiff's name, description, and residential address for ...
Presentation of the Plaint (Order 7 of CPC 1908) Presentation of the plaint in a court is the initial step of the pleadings in a case. Every suit commences when the plaintiff files a plaint to the court. The entire judicial system under the civil law is set in motion by filing the plaint. The Plaint should consist of the following contents:
An order may originate from a suit, by presentation of a plaint or may arise from a proceeding commenced by a petition or an application. Determination of Rights A decree is an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy.
The moment the plaint is filed it leads to the institution of the suit as it is provided in Section 26 of CPC, 1908 provides that every suit under shall be instituted by the presentation of a plaint or in such other manner as may be prescribed and the contents of such plaint shall be proved by an affidavit as per the amendment of 2002.
Order 4 deals with the parties to a suit, addition, deletion and substitution of parties and the objection as to non-joinder and mis-joinder. A suit is instituted on the presentation of a 'plaint'. The expression 'plaint' has not been defined in the Code but it means the exhibition of an action in writing[12]. PRESENTATION OF PLAINT
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