Make sure that the suit is filed in a court of competent jurisdiction;
Does one have the right parties to the cause of action, one must ask themselves who is the Plaintiff/s or Defendant/s addressing your mind to the issue of joinder of parties;
Is there a cause of action? The Plaintiff must have suffered a wrong capable of being remedied by the court. One must have a clear understanding of substantive law.
Having identified the cause of action under 3, is the proposed course of action statutorily barred? Does it fall outside the limitation of time prescribed under Limitations Act? Under Section 22 one must give prove of incapacities for an extension of time. A course of action founded on contract the limit is 6 years, a tort has 3 years limitation period. a proposed against the government is 12 months and the Government Proceedings Act must apply which requires one to give notice of 30 days to the AG giving the proposed cause of action. Adverse possession, it is possible to commence a suit where the plaintiff has been in occupation of a particular piece of land for a period of 12 years, to found an action on adverse possession, the requirements must be that one must show that there has been occupation for 12 years, uninterrupted, peaceful, the waiting period is 12 years.
One must have proper pleadings – One must be able to identify from the facts which one has been given a course of action. What form should the pleadings take, Plaint, Chamber Summons, Notice of Motion, Petition, Originating Motion or in case of compulsory acquisition it should be by appeal. Where one wants to challenge the government right or compulsory acquisition is by appeal.
The prescribed procedure to commence that kind of a suit. Ordinarily most suits are by way of a plaint. Under the Order titled Originating Summons, broadly actions which are founded on special relationships where parties have acquired special relationships should be commenced by way of Originating Summons mortgagor/mortgagee, heirs/trustees generally people occupying fiduciary capacities. This is under Order 37. One needs to know the formal ways, it is either a Plaint, OS, or Miscellaneous Application.
The Subject Matter – there must be something over which people are fighting, it could be money, property or one seeking a declaration from the court, or breach of a statutory right. if there is no subject matter there ought not to be any suit.
The reliefs or remedies one is seeking from the court.
Labels: Civil Procedure