Institution of a Suit and Summons

In one line

A suit is instituted by presenting a plaint, and the court then issues a summons telling the defendant to appear and answer.

Those are the two halves of this chapter, and the second is far longer than the first, because a great deal can go wrong with getting a piece of paper into somebody's hands.

Institution: sections 26 and Order IV

Section 26(1): every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

Section 26(2): in every plaint, facts shall be proved by affidavit.

Order IV Rule 1(1) repeats the rule in the rules: every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints.

Rule 1(2): every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.

Rule 1(3): the plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2).

Order IV Rule 2: the Court shall cause the particulars of every suit to be entered in a book kept for the purpose, called the register of civil suits, and the entries shall be numbered in every year according to the order in which the plaints are admitted.

Two consequences worth noting. Institution is by presentation, which fixes the date for limitation and for section 10 res sub judice. And by Rule 1(3) a plaint that does not comply with Orders VI and VII is not duly instituted at all, which is the link back to [Pleadings] and [The Plaint].

The summons: section 27 and Order V Rule 1

Section 27: where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim, and may be served in the manner prescribed, on such day not beyond thirty days from the date of the institution of the suit.

Order V Rule 1(1): when a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of the summons on him.

First proviso: no such summons shall be issued where the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim. There is nothing to summon him for.

Second proviso: where he fails to file the written statement within the thirty days, he shall be allowed to file it on such other day as the Court may specify, for reasons to be recorded in writing, but not later than ninety days from the date of service. That is the same limit as Order VIII Rule 1, and the commercial-dispute variant is dealt with in [The Written Statement].