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Chapter 2

CONTENT CHAPTER II INSTITUTION OF SUITS, SUMMONS AND DISCOVERY

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2.1 2.2 2.3 2.4 2.5

Section 26 Parties to Suits Frame of Suit Recognized Agents and Pleaders Institution of Suits Issue and service of Summons To Defendant

KEY TERMS Short Questions Assignment Questions

Chapter 2

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INSTITUTION OF SUITS, SUMMONS AND DISCOVERY

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Section (26)

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"Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed".

Institution of suit Every suit is instituted by presenting a plaint to the court or to such officer as it appoints in that behalf. When the plaint has been presented to a proper court, shows a cause of action, the relief is property valued, is written on a sufficiently stamped paper and is not barred by any law, the court admits the plaint and then it is numbered and registered as a suit .

ORDER (1)

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2.1 PARTIES TO SUITS

Rule 1:-

Joinder of plaintiffs (or) who may be joined as plaintiffs

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All person may be joined in the suit as plaintiffs (a) where the right to relief alleged to exist in each plaintiff arises out of the same act or transaction, and (b) where if such person brought separate suits, any common questions of law or fact would arise.

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Misjoinder of plaintiffs

If two or more persons are joined as plaintiffs in one suit in a case where the aforesaid two conditions do not ex ist, the result would be a misjoinder of plaintiffs.

Rule 2:-

Power of court to order separate trials

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Where it appears to the court that any joi nder of plaintiffs may embarrass or delay the trial of the suit, the court may put the plaintiffs to their election or order separate trials or make such other order as may be expedient.

Rule 3:-

Joinder of Defendants (or) who may be joined as de fendants

All person may be joined in one suit as defendants - (a) where any right to relief alleged to exist against them arises out of the same act or transaction; and (b) where, if separate suits were brou ght against such persons, any common question of law or fact would arise.

Question of Law

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2

Misjoinder of defendants

If two or more persons are joined as defendants in one suit in a case where the aforesaid two conditions do not exist, the result would be misjoinder of defendants.

Rule 4:-Court may give judgment for or against one or more of joint par ties.

Judgment may be given without any amendment (a)for such one or more of the plaintiffs as may be found to be entitled relief , for such relief as he or they may be entitled to;

(b)against such one or more of the defendants as may be found to be liable,according to their respective Liabilities.

Question of fact

(Scope of r .4 .- cl. (a) of this rule must be read with Or. 1, r. 1 and cl . (b) with Or. l.r.3. Where several persons join together as plaintiffs in a suit., but it is found that only some of them are entitled to relief, a judgment may under this rule, be given for such relief in favour of such persons.)

Rule 5:-

Defendant need not be interested in all relief claimed

It is shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.

Rule 6:-

Joinder of parties liable on same contract

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The plaintiff may, at his option, join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange, hundis and promissory notes.

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3 4 5

Note : -

This rule is applicable only to suits on contract

including hills of exchange, hundis and promissory notes moreover, the rule applies only where the defendants are liable on the same contract. It does not apply where defendants are liable on different contracts.

Rule 7:-When plaintiff in doubt from whom redress is to be sought where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.

3 4 5 6 7 8

Bills of exchange Hundis Promissory Notes Bills of exchange Hundis Promissory Notes

8 Rule 8:One person may sue or defend on behalf of all in same interest

(1)Where there are numerous persons having the same interest in one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the court shall in such case give , at the plaintiff s expense, notice of the institution of the suit to all such persons either by personal service, or, where from the number of person or any other cause such service is not reasonably practicable, by public advertisement, as

the Court in each case may direct.

(2) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub - rule (1) may apply to the court to be made a party to such suit .

9 Note:- The general rule is that all persons interested in a suit ought to be made parties thereto. But an exception to this is provided by Or. 1. r.8. In a representative suit the following three conditions are essential, viz.

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(1)the parties must be numerous

(2)they must have the same interest in the suit and

(3)the suit must be brought with the permission of the court.

In Taw Pin Aun Vs. Taw Cheng Chye and two * case, the Judge decided that- The aim and object of order l rule 8 of the Civil Procedure Code is obvious. In order to avoid needless litigation over the same subject matter in which numerous persons are interested - such as a public trust all persons interested must be joined as partie s . Taw Pin Aun Vs. Taw Cheng Chye and two( 1958 BLR (H.C) 357)

Phu Kyaw Kyaw Wai Vs. Ah Sein and another

**

case - the judge

held that In a suit filed under Order l Rule 8 of the Civil Procedure Code on behalf of an association, notice must be served on all members of the

* **

1958 BLR (H.C) 357 1958 BLR (H.C) 353

10 association, whether personally, or if, that method is practicable, by p ublic advertisement. Phu Kyaw Kyaw Wai Vs Ah Sein and another not reasonably,

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Rule 9:-

Misjoinder and nonjoinder

No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

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10

Misjoider of Parties Effect

A misjoinder of parties is not fatal to the suit ( Or . l .R. 9 ) where there is a misjoinder of parties the Court may order that the name of the party improperly joined as plaintiff or defendant be struck out an d the case may be proceeded with; (Or . l r. 10(2) ).

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Nonjoinder of parties

Where a person who ought to have been joined as a plaintiff o r as a defendant, is not joined, the defect is called nonjoinder of plaintiff or nonjoinder of defendants as the case may be.

Its effect

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Merits of the case

12 In the case of nonjoinder of necessary parties the court cannot pass an effective decree in their absence; e.g; if in a suit of partnership accounts all partners are not joined as parties no effective decree can be passed . In such a case the suit is liable to be dismissed. But instead of dismissing a suit for nonjoinder of necessary parties, the court gives opportunity to the plaintiffs to amend the plaint, (Or. l r .10 ). If the plaintiff refuses to amend the plaint, the court dismiss the suit. In the case of nonjoinder of proper parties the non-joiner is not fatal. The court can add the absent party or by the suit without him dealing with the matter in controversy in so far as the parties before the court are concerned.

Rule 10:-

Suit in name of wrong plaintiff

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(1)where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks just.

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(2)

Court may strike out or add parties

The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.

14 Daw Nu Nu Khin Vs. Daw Myint Myint and two others * , the judge held that In a suit for eject ment under Section 12 (1) ( f ) of the Urban Rent Control Act, 1960, by a landlord against the tenant, a sub -tenant is not only a proper party, but one whom the court, should under the provisions of order . Rule 10 (2) of the C.P.C add as party defendant when he offers to prove that the landlord , in claiming that the reasonably and bona fide requires the premise for occupation by himself for residential purpose has no case exclusively and that no decree for ejectment should, therefore be passed.

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1962 BLR (H.C) 34 - -

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( 3) No person shall be added as a plaintiff suin g without a next friend or as the next friend of a plaintiff under any disability without his consent.

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(4) Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended Copies of the summons and of the plaint sha ll be served on the new defendant and if the Court thinks fit on the original defendant.

(5)Subject to the provisions of the Limitation Act section 22, the proceeding as against any person added as defendant shall be deemed to have begun only on the service of the summons.

Rule 11:-

Conduct of Suit

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Next friend

16 The court may give the conduct of the suit to such person as it deems proper.

Rule 12.:offers.

Appearance of one of several Plaintiffs or defendants for

12 (1) Where the reare more plaintiffs than one, any one or more of them may be authorized by any other of them to appear plead or act for such other in any proceeding; and in like manner, whether there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.

(2) The authority shall be in writing signed by the party giving it and shall be filed in Court.

Rule (13) All objections on the ground of non-joinder or misjoinder of parties shall taken at the earliest possible opportunity and, in all cases where issues are settle, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

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ORDER II

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2.2 FRAME OF SUIT

Rule 1:-

Frame of Suit Every suit shall as far as practicable be framed so as to

afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.

Rule 2:-

Suits to include the whole of the claim

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(1)Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.

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Relinquishment of part of claim

Where a plaintiff omits to sue in respect of, or intentional ly relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portions so omitted or relinquished.

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(3)

Omission to sue for one of several reliefs

A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such relief, he shall not afterwards sue for any relief so omitted.

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13 14

Relinquish Reliefs

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Explanation:-

For the purpose of this rule an obligation and a

collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

Illustration A lets a house to B at a yearly rent of Kyats 1200. The rent for the whole of the years 1990, 1991 and 1992 is due and unpaid. A sues B in 1993 only for the rent due for 1991. A shall not afterwards sue B for the rent due for 1990 or 1992.

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Note:- Order 2 Rule 2 provides that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action, and that if he omits to include any portion of such claim he shall not be entitled to sue again in respect of it.

Order 2 rule 2. In the case of Tan Choo Kheng and two others V. Saw Chain Poon and anothers * the Judge held that A suit f or possession of immovable property is no bar to a suit for mesne profits, the cause of action in the two suits being different the subsequent suit is not barred under Order 2 rule 2 of C. P. C. Tan Choo Kheng and two others V. Saw Chain Poon and anothers

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In U Tin Myint Vs. U Khin Myint and one ** case The words shall not afterwards sue in Or. 2. Rule 2 sub rule 3 clearly cannot that the restriction imposed by this rule applies only to subsequent proceedings. The bar or the rule will operate only to where a decree has been passed in a previous suit in which the plaintiff has omitted a portion of the claim. It has no application to cases similar to the present one where the amendment
*

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1956 BLR Pg.490 HC 1965 BLR Pg 1050 C.C.

21 of plaint is sought for addition of the claim which has been omitted in the original plaint.

The object of rule 2 The object of the rule is clearly to avoid splitting up of claim or relief and to prevent of suits. The rule is directed against two evils, the splitting up of claims and the splitting up of remedies. The underlying principle is that a defendant is not to be twice vexed for one and the same cause.

Rule 3:-

Joinder of cause of Action

(1)Save as otherwise provided, a plaintiff may united in the same suit

several causes of action against the same defendant, or the same defendant jointly; and any plaintiff having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may united such causes of action in the same suit.

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(2)Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matter at the date of instituting the suit.

Rule 4:-

Only certain claims to be joined with claim for recovery of

immoveable property

Provides that in a suit for the recovery of immovable property, a plaintiff is not entitled, without the leave of the court, to join any claim except-

(a)claim for mesne porfits or arrears of rent in respect of the property claimed of any part thereof,

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(b)claims for damages for breach of any contract under which the property is held, and

(c) claims in which the relief sought is based on the same cause of action. Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.

17 18 19

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15 16 17 18 19 20

Merits Profits. Arreas of rent. Suit for foreclosure. Suit for redemption. Suit to be put in Possessions. - -

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Rule 5:-

Claims by or against executor , administrator or heir

No claim by or against an executor, administrator or heir, as such, shall be joined with claims by or against him personally, unless the last mentioned claims are alleged to raise with reference to the estate in respect of which the plaintiff or defendant sues or is used as executor, administrator or heir, or are such as he was entitled to, or liable for, jointly with the deceased person whom he represent.

Rule 6:-

Power of Court to order separate trails

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Where it appears to the court that any causes of action joined in one suit cannot be conveniently tried or disposed of together order separate trials. the court may

Rule 7:-

Objections as to misjoinder of causes of action

All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issue are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

2.3

RECOGNIZED AGENTS AND PLEADERS

26 Rule 1:Appearances, etc, may be in person, by recognized

Any appearance, application or act in or to any court, required or authorized by law to be made or done by a party in such court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be on his behalf :

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Provided that any such appearance shall, if the court so directs be made by the party in person.

Rule 2:-

Recognized agents

The recognized agents of parties by whom such appearances , applications and acts may be made or done are

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(A)Person holding powers of attorney, authorizing them to make and do such appearances; applications and acts on behalf of such parties.

27 (B) Person carrying on trade or business for and in the name of parties not resident within locial limits of the jurisdiction of the Court within which limits the appearance, application or act is made done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.

Rule 3:-

Service of process on recognized agent

(1)

Processes served on the recognized agent of a party shall be as

effectual as if the same had been served on the party in person, unless the court otherwise directs.

(2)The provisions for the service of processor on a party to a suit shall apply to the service of process on his recognized agent.

Rule 4:-

Appointment of pleader

28 (1)No pleader shall act for any person in any court, unless has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent by such person or by some other person duly authorized by or under a power of attorney to make such appointment.

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(2)Every appointment shall be filed in court and shall be deemed to be in force until determined by the discharge of the contract between the pleader and his client until all proceedings in the suit are ended so far as regards the client.

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Rule 5:Service of process served on the pleaders

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Any process served on the pleader of any party or left at the office or ordinary residence of such pleader, and whether the same is for the personal of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents, and, unless the otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person.

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Rule 6:-

Agent accept service

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(1) Besides the recognized agents described in rule 2 any person

residing within the jurisdiction of the court may be appointed an agent to accept service of process.

(2) Such appointment may be special or general and shall be made by an instrument in writing signed by the principal, and such instrument or, if the appointment is general, a certified copy thereof shall be filed in

Court.21

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ORDER IV

2.4

INSTITUTION OF SUITS

This order is read with section 26 of the Civil Procedure Code.

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Rule 1:-

Suit to be commenced by plaint

( 1)Every suit shall be instituted by presenting a plaint to the Court or such

officer as it appoints in this behalf.

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(2) Every plaint shall comply with the rules contained in Order VI and VI I; so far as they are applicable.

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Kyone Hoe Tsee Vs. Kyone Soon Swn; 3 Rangoon 261. Plaint

31 Rule 2:The Court admits the plaint and then it is numbered and

registered as a suit

The court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entires shall be numbered in every year according to the order in which the plaints are admitted.

According to the above mentioned orders I to IV,the learners must need to know about the essentials of a suit. Essentials of a suit .

The essentials of a suit are four in number. They are as under: (1) The opposing parties

In every suit there must be at least one plaintiff and one defendant. There may be more than one plaintiff and more than one defendant where an act or transaction proceeds from two or more persons or it affects two or more persons.

(2)The causes of action

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Every suit must contain the cause of action. The

term cause of

action refers to the cause or the set of circumstances which leads up to a suit. It consists of every fact which is necessary to be proved to entitle the plaintiff to a decree.

(3)The subject matter

It is the right or property claimed in the suit. The court adjudicates upon the rights of the parties with regard to the subject matter in dispute.

(3)The relief claimed

The relief claimed should be stated specifically in the plaint. It may be stated in the alternative also. The relief claimed must be one which the court is able to grant. When a person is entitled to more than one relief in respect of the same cause of action, he must sue for all the reliefs. He, however, may sue for one or more of them and reserve his right with the leave of the court to sue for the res t. If no such leave is obtained he will be precluded from afterwards suing for any relief so omitted.

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ORDER V

2.5

ISSUE AND SERVICE OF SUMMONS TO DEFENDANT

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Courts Manual.

34 Definition of Summons Summons in a document issued from the office of a court of justice, calling upon the person to whom it is directed to attend before a judge or officer of the court on the day mentioned therein.

Issue of Summons

On a suit having been duly instituted a summons is issued to the defendant to appear and the claim on a day therein specified. Summons to Defendant 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 manner prescribed.

Rule 1:-

When a suit has been duly instituted a summon may be issued

to the defendant to appear and answer the claim on a day to be ther ein specified:

35 Provided that no such summon shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiffs claim.

(2)A defendant to whom a summons has been issued under sub-rule (1) may appears-

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(a) In person, or

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(b) By a pleader duly instructed and able to answer all material

questions relating to the suit, or

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(c) by a pleader accompanied by some person able to answer all such questions.

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(3)Every such summons shall be signed by the judge or such officer as he appoints be sealed with the seal of the court.

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Rule-(2) Every summons shall be accompained by a copy of the plaint or, if so permitted, by a concise statement.

36 Particulars of Summons

Every summons shall-

(i)

intimate to the defendant of the date of hearing and whether he is to

appear in person or by a pleader;

(ii).contain a direction whether the date is fixed for settlement of issues only or for final disposal of the suit, and

(iii)order the defendant to produce all documents in his possession or power upon which he intends to rely in support of his case.

Rule-3(1) Where the court sees reason to require the personal appearance of the defendant, the summons shall order him to appear in person in Court on the day therein specified.

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Rule-3(2) Where the Court sees reason to require the personal appearance of the plaintiff on the same day, it shall make an order for such appearance.

37 Rule 4:residesNo party shall be ordered to appear in person unless he

(a) within the local limits of the Courts ordinary original jurisdiction, or

(b)without such limits but at a place less than fifty of (where there is railway or steamer communication or other established public conveyance for five sixths of the distance between the place where he resides and the place where the Court is situate) less than two hundred from the Court house. miles distance

(1)if she is a woman not appearing in public according to the custom and manners of the country. (Sec: 132).

Different modes of service of a summons on a defendant

The prescribed modes of service of a summons are as follows: (1)Personal of Direct Service

38 (2)Service by affixing a copy of summons on defendant's house without an order of the court (3)Substituted Service (4)Service by post. (1) Personal or Direct Service Rule 12:Wherever it is practicable service should be made on the

defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.

Where there are two or more defendants, service should be made on each defendant. Rule 15:Where the defendant cannot be found and has no agent empowered to

accept service of the summons on his behalf, service may be on any adult member of the family of the defendant who is residing of the property.

Explanation A servant is not a member of the family within this rule.

In U Ko Ko Gyi Vs. Daw Khin Thaung Case * Held that there is no provision of law that a defendant must be served with summons at no other place than the place as given in the summons and that service of summons was a good service as provided under Order 5 Rule 15 of the C. P. C.

1958 BLR (H.C) 387

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Rule 14:-

Where in a suit to obtain relief respecting; or compensation

for wrong to, immoveable property, the service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any him. of the defendant who is residing with

Rule 16:-

Such personal service is also called direct service because

service is made by delivering a copy thereof to the defendant personally, or to an agent or other person on his behalf, and the signature of the person to whom the copy is so delivered is obtained to an acknowledgment of service endorsed on the original summons.

(2) Service by affixing a copy of summons on defendant s house without an order of the court. Rule 17.

40 (a)Where the defendant or his agent or in their absence an adult male member of the family refuses to sign the acknowledgment or (b) Where the serving officer, after using due diligence, cannot find the defendant and there is no such other person on whom service can be effected, the service officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant resides and then return the original to the court from which it was issued with a report endorsed thereon stating that he has so affixed the copy. If the court is satisfied it declares the service to have been duly effect.

According to rule 17 of order 5, in U Wa Vs. U Ba Tun * case judge held that Where a defendant or his agent or an adult number of his family in his absence refuses to take delivery of a copy of the summons tendered to him, it is necessary for the process service to affix a copy of the summons to the outer door or to some other conspicuous part of the
*

1962 B.L.R.(CC) 289

41 house in which the defendant ordinarily resides or carries on business, etc, as required by order 5, Rule 17 of the C.P.C It cannot be taken as due service when merely on the refusal of the defendant or his agent or an adult member of his family to take delivery of the summons or to give permission for its affixation for the process server to bring the copy away and return the same with a report to that effect. Unless it is physically impossible for the process server to affix a copy of the summons to a

conspicuous part of the house he should make his best endeavour to carry out the direction contained in order 5, Rule 17.

(3 )

Substituted Service

Rule 20:-

Where the court is satisfied that there is reason to believe that

the defendant is keeping out of the way for the purpose of avoiding service, or that for any reason the summons cannot be served in the

42 ordinary way, the court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court house. And also upon some conspicuous part of the defendants house, or in such other manner as the court thinks fit service may be ordered to be effected by publication in a local newspaper.

(1)

Service by post

In particular cases the court may direct service of summon by post.

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Key Terms

Admits Plaintiff Defendant Summon Acknowledgment Prison Endorsed Affixed Conspicuous part Subsistuted service Thinks fit Allege Embarrass Judgment Amendment Liabilities bills of exchange hundis promissory notes redress defeat struck out adjudicate

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ejectment next friend omit split aggregate subject-matter arrears of rent foreclosure redemption executor pleader presumed

Short questions
1.What is meant by Misjoinder of Parties? 2.What is the effect of Misjoinder of Parties? 3. What is meant by joinder of plaintiff and joinder of de fendant? 4.What is meant by Non - joinder of Parties? 5.What is the effect of Non - joinder of Parties? 6.What is meant by Misjoinder of cause of action? 7.What claim can be joined together in a suit for recovery of immoveable property. (Order 2. Rule 4) 8.Write about the short note on Personal or Direct Service in serving the summons. 9.Who will get the exemption from personal appearance? 10.How is service effected, where the defendant or his agent refuse to receive a summon?

45 11. Explain abou t the Substituted Service.

Assignment Questions
1.A lets a house to B at a yearly rent of kyats 10000. The rent for the whole of the year 1985, 1986 and 1987 is due for 1986. Can A afterwards sue B, for the rent due for 1985 and 1987? 2.Discuss fully the provisions of the C.P.C with regard to joinder of include the whole claims. 3. Discuss fully the provisions of the C.P.C with regard to joinder of cause of action. 4.Explain about the essentials of suit. 5.Define the summons and what are particulars of summons. 6.How is service effected in the following case? (a).where the defendant resides within the jurisdiction of another Court? (b).where the defendant is confined in prison? (c).where the defendant resides out of amyanmar and has no agent in Myanmar? (d).where the defendant is a solider?