INSTITUTION OF SUITS

26. Institution of suits.— ¹[(1)] Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

²[(2) In every plaint,facts shell be proved by affidavit.]

SUMMONS AND DISCOVERY

27. Summons to defendants.— 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 manner prescribed. ³[on such day not beyond thirty days from date of the institution of the suit].

28. Service of summons where defendant resides in another State.—(1) A summons may be sent for service in another State to such Court and in such manner as may be prescribed by rules in force in that State.

(2) The Court to which such summons is sent shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue together with the record (if any) of its proceedings with regard thereto.

⁴[(3) Where the language of the summons sent for service in another State is different from the language of the record referred to in sub-section (2), a translation of the record.—

(a) In Hindi, where the language of the Court issuing the summons is Hindi, or

(b) In Hindi or English where the language of such record is other than Hindi or English,

Shall also be sent together with the record sent under that sub-section.]

1 Section 26 renumberd as sub-section (1) thereof by Act No. 46 of 1999, section 2 (w.e.f. 1-7-2002).

2 Ins. by Act No.46 of 1999, section 2 (w.e.f. 1-7-2002).

3 Added by Act No.46 of 1999, section 3 (w.e.f. 1-7-2002).

4. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

¹[29. Service of foreign summonses.— Summonses and other processes issued by.—(a) Any Civil or Revenue Court established in any part of India to which the provisions of this Code do not extend, or

(b) Any Civil or Revenue Court established or continued by the authority of the Central Government outside India, or

(c) Any other Civil or Revenue Court outside India to which the Central Government has, by notification in the Official Gazette, declared the provisions of this Section to apply,

May be sent to the Courts in the territories to which this Code extends, and served as if they were summonses issued by such Courts.]

1. Substituted by Act No. 2 of 1951.

30. Power to order discovery and the like.— Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party.—

(a) Make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;

(b) Issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

(c) Order any fact to be proved by affidavit.

31. Summons to witness.— The provisions in Sections 27, 28 and 29 shall apply to summonses to give evidence or to produce documents or other material objects. THE DEFENDANT FILED CHIEF EXAMINATION AFFIDAVIT OF A SCRIBER AS DW2, BUT LATER THE SCRIBER REFUSED TO GIVE EVIDENCE. THEN THE DEFENDANT CAN FILE AN APPLICATION FOR ISSUE OF SUMMONS TO HIM ? NO. –2010 [5] ALT 95.

32. Penalty for default.— The Court may compel the attendance of any person to whom a summons has been issued under Section 30 and for that purpose may.—

(a) Issue a warrant for his arrest;

(b) Attach and sell his property;

(c) Impose a fine upon him ¹[not exceeding five thousand rupees];

(d) Order him to furnish security for his appearance and in default commit him to the civil prison.

1. Substituted by Act No. 46 of 1999, Section 4 (w.e.f. 1-7-2002).

JUDGMENT AND DECREE

33. Judgment and decree.— The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.

INTEREST

34. Interest.—(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum], from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit

²[Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.

Explanation I.—In this, sub-section, “nationalised bank” means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970).

Explanation II.—For the purposes of this Section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.]

(2) Where such a decree is silent with respect to the payment of further interest ¹[on such principal sum] from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.

1. Inserted by Act No. 104 of 1976, w.e.f. 1st July, 1977 Costs.

35. Costs.—(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the quit shall be no bar to the exercise of such powers.

(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.

¹[***]

1. Sub-section (3) omitted by Act No. 66 of 1956.

¹[35A. Compensatory costs in respect of false or vexatious claims or defences.— (1) If in any suit or other proceedings ²[including an execution proceeding but ³[excluding an appeal or a revision]] any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, ⁴[if it so thinks fit], may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of cost by way of compensation.

(2) No Court shall make any such order for the payment of an amount exceeding ⁵[three thousand rupees] or exceeding the limits of its pecuniary jurisdiction, whichever amount is less:

Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (9 of l887) ⁶[or under a corresponding law in force in ⁷[any part of India to which the said Act does not extend]] and not being a Court constituted ⁸[under such Act or law], are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this Section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees:

Provided, further, that the High Court may limit the amount which any Court or class of Courts is empowered to award as costs under this Section.

(3) No person against whom an order has been made under this Section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him.

(4) The amount of any compensation awarded under this Section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.]

1. Section 35A was inserted by Act No. 9 of 1922, which may be brought into force in any State by the State Government on any specified date. It has been brought into force in Bombay, Bengal, U. P., Punjab, Bihar, C.P., Assam, Orissa and Tamil Nadu.

2. Substituted by Act No. 66 of 1956, for the words “not being an appeal.”

3. Substituted by Act No. 104 of 1976, for the words “excluding an appeal”, w.e.f. 1st February, 1977.

4. Substituted by Act No. 66 of 1956.

5. Substituted by Act No. 104 of 1976, for the words “one thousand rupees”, w.e.f. 1st February, 1977.

6. Inserted by Act No. 2 of 1951.

7. Substituted by the Adaptation of Laws (No. 2) Order, 1956, for the words “a Part B State”.

8. Substituted by Act No. 2 of 1951, for the words “under that Act”.

¹[35B. Costs for causing delay.—(1) It, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit-

(a) Fails to take the step which he was required by or under this Code to take on that date, or

(b) Obtains an adjournment for taking such step or for producing evidence or on any other ground,

The Court may, for reason to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of.—

(a) The suit by the plaintiff, where the plaintiff was ordered to pay such costs,

(b) The defence by the defendant, where the defendant was ordered to pay such costs.

Explanation.—Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs.

(2) The costs, ordered to be paid under sub-section (1), shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addressee of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons.]

1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.