Institution and various stages of a civil suit

Introduction

A civil proceeding is an adversarial Process in Bangladesh. The standard of proof in a civil case is balance of probabilities. In a Civil suit a right is claimed by the plaintiff which has been denied by the defendant. In Bangladesh a Civil suit is regulated according to the Code of Civil Procedure, 1908. The code of civil procedure has certain special rules and regulation regarding the institution of suits and which passes through some stages which also determined by the code of civil procedure, 1908 .

A civil suit is a long process to follow, people often wonder why a civil suit take so much time? because there are so many stages to follow. To understand a civil suit, It is better to look at the steps of the procedure of a civil suit to have an overall idea of the procedure. The procedure of civil suit is guided by the code of civil procedure, 1908.

Primarily a civil suit stages can be segmented into three-part.

1. Pre-trial Stage
2. Trial Stage
3. Post-trial Stage

Pre-trial Stage

To initiate a civil suit it needs to be presented before a court to hear it and find the conflicting areas and prefacethe proper documents and list of evidence etc.

Plaint

A civil suit must be instituted with a plaintiff that sufficiently describes the situation, shows the cause of action and seeks proper remedies. This is guided under section 26, Order 4 Rule 1 as well as Order 6 and 7

Summons

After the initiation via plaint, summons must be duly served within 5 days to the defendants by the cost of the plaintiff so that the other party can appear before the court to defend himself and bring the real picture of the suit. According to tor section, 27 – 32 and the rules are mentioned under Order 5 of the Code.

Written Statement

After getting the summons the defendant needs to reply to the claim of the plaintiff the defendant can accept the claim or deny the claims. Also, he can ask for set-off or raise a counter-claim in the matter of money suit. This written document is known as “Written Statement”. The procedure is described under Order 6 and Order 8 of CPC.

At this point, after getting the information from both parties some dispute could be solved but if it remains the same then the procedure of ADR took place.

Alternative dispute resolution (ADR)

At this stage it is mandatory to initiate an alternative dispute resolution (ADR) so that parties can solve their dispute out of the court, it is preferred to prevent a long procedure and to save both time and money of both parties. The procedure and rules of ADR under CPC is mentioned in section 89A to 89E. 89 B is specifically important for Mediation under CPC.

Framing Of Issues

If ADR does not solve the dispute then those unsolved issues have to be framed; basically, Issues are those key questions of which the answer is needed to reach a verdict. The court would carefully analyze the context and create those questions, this is known as issue framing. Afterwards, the court would try to get the answer of those questions by the production of documents and evidence produced before him. The related procedure is described under Order 14 rule 1-6

Examination, admission, inspection etc.

Before proceeding into the pre-trial step or at the trial step, the court may order some other additional steps or stages in a suit if required, such as;

• Examination of parties (Order 10): Here the court may examine the party or his representative by asking some questions.
• Discovery and Inspection of documents (Order 11): The court may ask for discovery or inspection of documents.

*Admission (Order 12): Any party can request to admit certain matters to the other party.

• Production, Impounding and return of documents (Order 13): The court can order for production of any document and after the production, If there is any reason to believe that any such document is improper, irrelevant and unacceptable the court may order impounding of those documents and shall return if after due action is taken.
• Commission (Section 75, Order 26 & rule 9): In some occasions, the court may need to understand the real scenario of the subject matter by visiting and observing a certain location which might not be possible for the court, as a result, the court may appoint a commission to do such job on behalf of him.
• Prevention and inspection (Order 39 – rule 7): The court may order prevention and inspection of the subject matter if it thinks fit.

Setting date for peremptory hearing

After the framing of the issue, the court will set a date for the Peremptory Hearing (PH) also known as  final Hearing under Order 14 rule 8.

Trial Stage

The trial stage can be considered the main part of a suit, where the court hears witnesses, take evidence, considers documents and finds the answers of the issues.

Peremptory hearing

Peremptory hearing (PH) is the part where evidence is taken, this procedure can be divided in several parts. This process must be concluded within 120 days from the start of this process (Order 18, Rule 19)

• Opening the case  (Order 18, Rule 1): The presentation of evidence began with the plaintiff unless the defendant has already accepted the plaintiff’s claim.

Examination, Cross-examination and re-examination of witnesses

Here at first any of the party can call their witness to testify before the court, this is called Examination in chief. After that, the other party can question that witness to prove him wrong or question his capability as a witness, this is known as Cross-Examination. If that witness due to the presser of the opposite party or any other reason loses his track from his stand or get confused with the party of which he is a witness can question him again for clarification, this is called re-examination. The procedure of examination has given under section 135 to 165 of The Evidence Act, 1872

Argument

After taking evidence and before the judgment parties argue before the judge on the point of law and fact based on the documents and evidence they have received during the trial. Parties try to convince the judge to their favour. This is known as an argument. Argument is the final chance to win a case.

Judgement, Decree and order

After the case has been heard by the court shall pronounce the judgment, and on such judgment, decree shall follow (section 33). The court will provide the judgement of the suit within 7 days (Order 20 rule 1) Judgment is the explanation of the decree or the decision of the court which includes decree and order. A decree is a formal expression of an adjudication which conclusively determines the right of the party regarding all or any of the matters in controversy in the suit. On the other hand, Order means the formal expression of any decision of a Civil Court which is not a decree.

Post Trial stage

Execution of Decree

The main part of the judgment is the decree after the judgment is given if the opposite party does not follow it automatically then the decree-holder needs to file for the execution of the decree. Details of execution of decree are given under section 36 to 47 and under order 21 of The Code of Civil Procedure, 1908.

Appeal, Review, Revision

It is obvious that some party is going to lose the case when the other wins. The party losing the case is defined as a judgment debtor, the judgment debtor can be aggrieved by the judgment, in some cases, the decree-holder (who wins the case) can also be aggrieved for some reason.  Such an aggrieved party may think the judgment treated him unfairly or there was some serious mistake at that situation there are several options open for him to get the proper justice. Namely; Appeal, Review, Revision.

Appeal

Appeal is the power of superior court to change/correct the judgment of its subordinate court where is there is a significant mistake or error of law. Procedure of appeal has given under section  96 to 112 of the code and under Order 41 and Order 43

Review

Review is another procedure to get the proper justice, here the application is presented before the same court who gave the judgment to review and reconsider its judgement. The procedure of review has given under section 114 and order 47 of the code.

Revision

Revision is like appeal, presented before a superior court. Revision shall apply where there is an error of law and/or occasioning failure of justice but no legal guideline for appeal. The procedure of revision has given under section 115 of the code of Civil Procedure.

Conclusion

One of the major characteristics of adversarial legal system is that civil litigation process is a contest between two parties. As Bangladesh belongs to adversarial legal system and under this system in civil litigation the two parties are the plaintiff on one hand and the defendant on the other hand. Under this process the court takes a non partisan role and the court does not play any role in the inquiry into the events rather arrange a hearing between the parties to decide within the complex set of rule whether the plaintiff is entitled to the right claimed which the defendant denies. In civil proceeding the standard of proof is the balance of probabilities namely more probably true than false.

Written by: Riad Arefin, Student, Department of Law, University of Dhaka.