Plaint, Complaint, Suit and Affidavit

The stages, in order

A student who can list these can answer almost any question about civil procedure at first-year level. Plaint filed. Summons issued to the defendant under section 27. Written statement filed by the defendant. Issues framed by the court under Order XIV. Evidence led by both sides. Arguments. Judgment. Decree drawn up. Execution, or appeal.

Plaint

What it is

A plaint is the written statement of the plaintiff's claim, presented to the court, which institutes the suit. It is the first pleading in a civil case.

A pleading, for a reader meeting the word for the first time, means a plaint or a written statement: the formal documents in which each side sets out the facts it relies on. Order VI is the Order that governs pleadings generally.

What must be in it

Order VII rule 1 lists the particulars a plaint must contain, and this list is asked directly. The plaint shall contain:

the name of the court in which the suit is brought; the name, description and place of residence of the plaintiff; the name, description and place of residence of the defendant, so far as they can be ascertained; where the plaintiff or defendant is a minor or a person of unsound mind, a statement to that effect; the facts constituting the cause of action and when it arose; the facts showing that the court has jurisdiction; the relief which the plaintiff claims; where the plaintiff has allowed a set-off or relinquished part of his claim, the amount so allowed or relinquished; and a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of court fees.

Two of those carry most of the weight. The cause of action, which is worked in [Cause of Action, Issue, Charge and Bail], is the bundle of facts the plaintiff must prove to succeed. The relief claimed is what the plaintiff actually wants the court to do, and a court will not ordinarily give relief that was never asked for.

Verification

Order VI rule 15(1) requires every pleading to be verified at the foot by the party, or by one of the parties pleading, or by some other person proved to the satisfaction of the court to be acquainted with the facts. Rule 15(2) requires the person verifying to specify, by reference to the numbered paragraphs, what is verified of his own knowledge and what upon information received and believed to be true.

That distinction is not a formality. A witness can be cross-examined on the difference between what they saw and what they were told.

When a plaint is thrown out

Order VII rule 11 says the plaint shall be rejected in these cases: where it does not disclose a cause of action; where the relief claimed is undervalued and the plaintiff fails to correct the valuation within the time fixed; where the relief is properly valued but the plaint is on insufficiently stamped paper and the plaintiff fails to supply the stamp paper within the time fixed; where the suit appears from the statement in the plaint to be barred by any law; where it is not filed in duplicate; and where the plaintiff fails to comply with rule 9.

Note two things. The word is "shall", so rejection is not discretionary once a ground is made out, which is a point to carry into [Interpretation of Directory and Mandatory Provisions]. And clause (d) says "appears from the statement in the plaint": the court looks at the plaint itself, not at the defence.

Complaint

The definition

Section 2(1)(h) of the Bharatiya Nagarik Suraksha Sanhita 2023: "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Sanhita, that some person, whether known or unknown, has committed an offence, but does not include a police report.

There is an Explanation: a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and the police officer making it shall be deemed to be the complainant.

The equivalent provision of the repealed Code of Criminal Procedure 1973 was section 2(d), in substantially the same words.

Taking the definition apart

"Any allegation made orally or in writing". A complaint need not be a document at all. This is the sharpest contrast with a plaint, which must be written and must be presented.

"To a Magistrate". Not to the police. An allegation made to the police is not a complaint within this definition; it may lead to a first information report, which is a different thing.

"With a view to his taking action under this Sanhita". The person must be asking the Magistrate to act, not merely informing him.

"That some person, whether known or unknown, has committed an offence". The accused need not be named. And what is alleged must be an offence, which as [Fact, Person, Offence and State] explains means an act or omission made punishable by a law in force.

"But does not include a police report". This is the exclusion that carries the Explanation, and it is the line between the two routes into a criminal court.

What happens to a complaint

Section 210(1) provides that any Magistrate of the first class, and any Magistrate of the second class specially empowered, may take cognizance of any offence upon receiving a complaint of facts which constitutes such offence; upon a police report of such facts; or upon information received from any person other than a police officer, or upon his own knowledge, that the offence has been committed. "Taking cognizance" means the Magistrate applying his mind to the offence for the purpose of proceeding.

Section 223(1) then requires a Magistrate taking cognizance on complaint to examine the complainant and any witnesses present upon oath, and to reduce the substance of the examination to writing, signed by the complainant, the witnesses and the Magistrate. A proviso in the Sanhita adds a requirement that did not exist under the old Code: no cognizance shall be taken without giving the accused an opportunity of being heard. Further provisos excuse the examination where the complaint is in writing and is made by a public servant acting in the discharge of official duties or by a court, or where the case is made over to another Magistrate under section 212.

Section 223(2) adds a further protection for public servants: no cognizance on a complaint against a public servant for an offence alleged in the discharge of official functions unless the public servant has had an opportunity to make assertions about the situation and a report from a superior officer has been received.

Section 224 deals with a complaint made to a Magistrate who is not competent to take cognizance: if it is in writing he returns it for presentation to the proper court with an endorsement, and if it is not in writing he directs the complainant to the proper court.

Affidavit

The definition

No Indian statute defines "affidavit" positively. What exists is section 3(3) of the General Clauses Act 1897, which extends the word: "affidavit" shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing.

So the working definition, which is what to write, is this: an affidavit is a written statement of facts, made by a person called the deponent, sworn or affirmed before an officer authorised to administer an oath. It is evidence, given on oath, in writing, without the deponent standing in the witness box.

The Act's extension exists because not everybody swears on a religious text. A person who by law may affirm instead of swearing makes an affirmation, and section 3(3) puts it on the same footing.

The rules that govern it in a civil case

Order XIX rule 1: any court may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable. There is a proviso that where it appears that either party bona fide desires the production of a witness for cross-examination, and the witness can be produced, an order shall not be made allowing the evidence to be given by affidavit.

That proviso is the whole balance of the rule. An affidavit is convenient, and the right to cross-examine is more important than convenience.

Order XIX rule 2: upon any application, evidence may be given by affidavit, but the court may order the deponent to attend for cross-examination.

Section 26(2) of the Code requires that in every plaint, facts shall be proved by affidavit, in the form and manner prescribed under Order VI rule 15A.

What an affidavit must and must not contain

It states facts, not argument and not law. It states them in the first person, in numbered paragraphs. It distinguishes what the deponent knows of his own knowledge from what he believes on information, and it says the source of the information.

A false statement in an affidavit is made on oath, which is why an affidavit is taken seriously and why swearing a false one exposes the deponent to prosecution.

A worked example

Two disputes arising out of one incident. Priya's neighbour Vikram builds a shed that encroaches two feet onto her plot in Kalyan, and in the argument that follows he pushes her and she falls.

The civil side. Priya wants the shed removed. She files a plaint in the competent civil court. It must contain the particulars in Order VII rule 1: the court's name, both parties' names and addresses, the facts constituting the cause of action, namely her title, his encroachment and the date, the facts showing jurisdiction, namely that the property is situated within that court's local limits, the relief claimed, namely a mandatory injunction to remove the shed and a declaration of title, and the value of the subject matter. She verifies it at the foot under Order VI rule 15, specifying what she knows personally and what she was told by the surveyor. On presentation under section 26 and Order IV, the suit is instituted. Because she also wants the construction stopped meanwhile, she applies for a temporary injunction and supports the application by an affidavit under Order XIX rule 2, which Vikram may ask the court to have her attend and be cross-examined on.

The criminal side. The push is a separate matter. Priya may go to the police, or she may go directly to the Magistrate and make a complaint under section 2(1)(h) of the Sanhita, orally or in writing, alleging that Vikram has committed an offence. The Magistrate, if he proposes to take cognizance under section 210(1)(a), must examine her on oath under section 223(1), reduce the substance to writing, and, under the first proviso, give Vikram an opportunity of being heard before taking cognizance.

Two proceedings, one incident. Neither bars the other, because as [Right, Duty, Wrong and Remedy] explains a single act can be both a civil wrong and a criminal one.

Distinctions table

What these words do NOT mean

A complaint is not a first information report. An FIR is information about a cognizable offence given to the police. A complaint is an allegation made to a Magistrate, and section 2(1)(h) expressly excludes a police report.

A complaint need not name the accused. The definition says "whether known or unknown".

A plaint is not the suit. The plaint is the document; the suit is the proceeding the document begins.

An affidavit is not a pleading. A plaint is a pleading and states the case; an affidavit is evidence and states facts on oath. A student who writes "I filed an affidavit to start the suit" has confused the two.

"Complaint" in ordinary speech is not "complaint" in law. Telling a police constable you have been cheated is not a complaint within section 2(1)(h), however much it feels like one.

Limits and criticism

The requirement in section 223 of hearing the accused before cognizance is new, and its practical effect is contested: it protects a person from being dragged to court on a frivolous private complaint, and it also delays the taking of cognizance and gives an accused notice at a very early stage.

Order VII rule 11 is a blunt instrument. Rejection for non-disclosure of a cause of action is decided on the plaint alone, which is meant to be a filter and is sometimes used to try the case at the threshold.

Proof by affidavit saves time and weakens testing. The proviso to Order XIX rule 1 is the safeguard, and it works only if the other side asks.

Quick revision

Suit: a civil proceeding of a civil nature, CPC s.9. Instituted by presenting a plaint, s.26(1) and Order IV. Stages: plaint, summons, written statement, issues, evidence, arguments, judgment, decree, execution or appeal.

Plaint: the first pleading in a civil suit. Contents, Order VII r.1, nine particulars including the facts constituting the cause of action and when it arose, the facts showing jurisdiction, and the relief claimed. Verified under Order VI r.15. Rejected under Order VII r.11 on six grounds, including no cause of action and barred by any law.

Complaint: BNSS 2023, s.2(1)(h). Any allegation, oral or written, to a Magistrate, with a view to his taking action, that some person known or unknown has committed an offence, but not a police report. Explanation: a police report on a non-cognizable offence is deemed a complaint. Cognizance under s.210; examination of the complainant on oath under s.223(1), and no cognizance without hearing the accused.

Affidavit: a written statement of facts sworn or affirmed. General Clauses Act 1897, s.3(3) includes affirmation and declaration. CPC Order XIX rr.1 and 2; the proviso to r.1 protects the right to cross-examine. CPC s.26(2): facts in a plaint to be proved by affidavit.

Test yourself

1. Distinguish a plaint from a complaint.

A plaint is the written first pleading of a plaintiff, presented to a civil court under section 26 and Order IV of the Code of Civil Procedure 1908, containing the particulars in Order VII rule 1, which institutes a civil suit and asks for a civil remedy. A complaint, under section 2(1)(h) of the Bharatiya Nagarik Suraksha Sanhita 2023, is any allegation made orally or in writing to a Magistrate, with a view to his taking action, that some person known or unknown has committed an offence; it excludes a police report, needs no prescribed form, and seeks the punishment of the offender by the State.

2. List the particulars a plaint must contain.

Under Order VII rule 1: the name of the court; the name, description and residence of the plaintiff; the same for the defendant so far as ascertainable; a statement where either is a minor or of unsound mind; the facts constituting the cause of action and when it arose; the facts showing that the court has jurisdiction; the relief claimed; the amount allowed by way of set-off or relinquished; and a statement of the value of the subject matter for jurisdiction and court fees.

3. On what grounds shall a plaint be rejected?

Under Order VII rule 11: where it does not disclose a cause of action; where the relief is undervalued and the plaintiff does not correct the valuation in the time fixed; where the relief is properly valued but the paper is insufficiently stamped and the stamp paper is not supplied in the time fixed; where the suit appears from the statement in the plaint to be barred by any law; where it is not filed in duplicate; and where the plaintiff fails to comply with rule 9. The word used is "shall", so rejection is mandatory once a ground is established.

4. Can a complaint be made orally, and can it be made against an unknown person?

Yes to both. Section 2(1)(h) says "any allegation made orally or in writing", so no document is required, and it says "that some person, whether known or unknown, has committed an offence", so the accused need not be identified. What the definition does require is that the allegation be made to a Magistrate, that it be made with a view to his taking action under the Sanhita, and that what is alleged amounts to an offence.

5. What is an affidavit, and when may a court refuse to allow a fact to be proved by one?

An affidavit is a written statement of facts made by a deponent and sworn or affirmed before an authorised officer; section 3(3) of the General Clauses Act 1897 provides that the word includes affirmation and declaration by persons allowed by law to affirm or declare instead of swearing. Under the proviso to Order XIX rule 1 of the Code of Civil Procedure 1908, the court shall not order evidence to be given by affidavit where it appears that either party bona fide desires the production of the witness for cross-examination and that witness can be produced.

6. A police officer investigates and reports that a non-cognizable offence has been committed. Is that report a complaint?

Yes, by deeming. Section 2(1)(h) excludes a police report from the definition of a complaint, but the Explanation provides that a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and that the officer making it shall be deemed to be the complainant. The deeming is necessary because a non-cognizable case cannot proceed on a police report in the ordinary way.