744 Code of Civil Procedure, 1908 [O 4, R.

signed by the principal, and such instrument or, if the appointment is

general, a certified copy thereof shall be filed in the Court.
1
[(3) The Court may, at any stage of the suit, Order any party to the suit
not having a recognised agent residing within the jurisdiction of the
Court, or a pleader who has been duly appointed to act in the Court on
his behalf, to appoint, within a specified time, an agent residing within
the jurisdiction of the Court to accept service of the process on his
behalf.]

Case Cited
1. Kunhibi v. Land Acquisition Officer, MANU/KE/0080/1962: AIR 1962 Ker 266.

COMMENTS
Sub-rule (3) empowers the Court to direct a party not residing within the local
jurisdiction of Court to appoint an agent within the area of local jurisdiction of such
Court so that processes as and when required may be served on him. Sub-rule (1)
entitles the party to appoint agent for the said purpose of his own even if there is
no such Order. A husband cannot be said to be an agent for the purposes of this
rule unless he is so appointed by his wife (Kunhibi v. Land Acquisition Officer)1 but
husband can of course accept summons under Order V, Rule 15 of this Code on
behalf of his wife.

Order IV
Institution of Suits

1. Suits to be commenced by plaint.—

(1) Every suit shall be instituted by presenting a plaint in duplicate to the
Court or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so
far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with
the requirements specified in Sub-rules (1) and (2).

ANNOTATIONS

Amendments Effective date of Amendment

The Code of Civil Procedure (Amendment)
Act, 1999 in clause 1 of Rule 1 substituted
the text “plaint to the Court” for the text
“plaint in duplicate to the Court” and added
clause 3 to Rule 1.
The Code of Civil Procedure (Amendment)
Act, 1999 w.e.f. 01.07.2002
Prior to Amendment
Rule 1(1) of Order 4 use to read as under:
(1) Every suit shall be instituted by
presenting a plaint to the Court or

®
744
O 4, R, 1] Order 4
such officer as it appoints in this
behalf.
State Amendments
Uttar Pradesh
Uttar Pradesh Act No. 57 of 1976 in its
application to the State of Uttar Pradesh
after Order IV, insert Order IVA as under:
Order IV A
Consolidation of Cases
1.Consolidation of suits and
proceedings.–
When two or more suits or proceedings
are pending in the same Court, and the
Court is of opinion that it is expedient in
the interest of justice, it may by order
direct their joint trial, where upon all such
suits and proceedings may be decided
upon the evidence in all or any of such
suits or proceedings.
Effective date of State Amendments
Uttar Pradesh Act No. 57 of 1976 w.e.f.
01.01.1977
High Court Amendments
Allahabad
For Sub-rule (1) of Rule 1, substitute the
following sub-rules:
(1) Every suit shall be instituted by
presenting to the Court or such officer
as it appoints in this behalf, a plaint
together with a true copy for service
with the summons upon each
defendant, unless the Court for good
cause shown allows time for filing such
copies.
(2) The court-fee chargeable for such
service shall be paid in the case of
suit when the plaint is filed and in the
case of all other proceedings when
the process is applied for.’; and
(b) re-number the existing sub-rule (2) as
sub-rule (3).
®
745
Bombay
For rule 1, substitute the following:
1. Suit to be commenced by plaint.:
(1) (a) Every suit shall be instituted
by presenting a plaint to the
Court or such officer as it
appoints in this behalf.
(b) The plaintiff shall, except in
the Bombay City Civil Court,
file as many true copies on
plain paper of the plaint with
annexures as there are
defendants, for service with the
summons upon the defendants,
unless the Court by reason of
the length of the plaint or the
number of defendants or for
any other sufficient reason
permits him to present a like
number of concise statements
of the nature of the claim made
or of the relief claimed in the
suit in which case, he shall
present such statements. Such
copies or statements shall be
filed along with the plaint unless
the court, for good cause
shown, allows time for filing
such copies or statements.
(2) Where the plaintiff sues, or the
defendant or any of the
defendants is sued, in a
representative capacity, such
statements shall show in what
capacity the plaintiff or the
defendant sues or is sued.
(3) The plaintiff may, by leave of
the court, amend such
statements so as to make them
correspond with plaint.
(4) The fee, chargeable for service
of the summons upon the
defendants, shall be paid when
the plaint is filed or within such
time as may be extended by
the court.
745
746 Code of Civil Procedure, 1908 [O 4, R. 1

(5) Every plaint shall comply with Rajasthan

the rules contain in Orders VI
and VII so far as they are
applicable.’
Madhya Pradesh
(a) For sub-rule (1), substitute the
following:
‘(1) Every suit shall be
instituted by presenting to the
Court or such officer as it
appoints in this behalf a plaint,
together with as many true
copies on plain paper of the
plaint as there are defendants,
for service with the summons
upon each defendant, unless
the court, for good cause
shown, allows time for filing
such copies.’
(b) insert thereafter the following
as sub-rule (2):
‘(2) The court-fee chargeable
for such service shall be paid
in the case of suits when the
plaint is filed, and in the case
of all other proceedings when
the process is applied for.’ and
(c) Renumber the existing sub-rule
(2) as sub-rule (3).
For sub-rule (1), substitute the following:
(1) Every suit shall be instituted by
presenting to the Court or such officer
as it appoints in this behalf a plaint,
together with as many true copies on
plain paper of the plaint as there are
defendants, for service with the
summons upon each defendant, unless
the court, for good cause shown, allows
time for filing such copies.
Calcutta
In order IV Rule 2, after the words
“particulars of every suit”, insert the words
“except suits triable by a Court invested
with the jurisdiction of a Court of Small
Causes under the Provincial Small Cause
Courts Act, 1887.
Effective Date of High Court
Amendments
Allahabad: Notification No. 4084/35(a)-3(7)
dated 24.07.1926
Bombay: 1.10.1983
Madhya Pradesh: 29.06.1943
Rajasthan: Notification No. 33/SRO dated
1.10.1983
Calcutta: Notification No. 8579-G, dated
26.10.1938

Case Cited
1. Bhakti Hari Naik v. Vidyawati Gupta MANU/WB/0579/2004: AIR 2005 CAL 145 (DB)
2. Bal Mukund Prasad Gupta v. Mathura Prasad AIR 2002 All 363
3. Shyam Singh v. GSM Association 2004 (1) MPHT 342: MANU/MP/0001/2004
4. State Trading Corpn. v. Ironside, MANU/MH/0052/1966: AIR 1966 Bom 126 67 Bom LR
644 : ILR (1966) Bom 312.
5. Kanhaiya v. Panchayati, MANU/UP/0193/1948: AIR 1949 All 367 : 1949 ALJ 105.
6. Union Bank of India v. Sunpac Corporation MANU/MH/0173/1986: AIR 1986 Bom 353.
7. Jyoti Prakash Banerjee v. Chameli Banerjee MANU/WB/0052/1975: AIR 1975 Cal 260
(D.B).
8. Vidyawati Gupta v. Bhakti Hari Naik MANU/SC/0921/2006: AIR2006SC1194; Apeejay
House Private Limited v. Punjab National Bank MANU/WB/0011/2007.
9. All India Reporters v. Ramchandra, MANU/MH/0071/1961: AIR 1961 Bom 292.
10. Basanta v. Lakshma, AIR 1968 A&N 57.

®
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O 4, R, 1] Order 4 747

11. Tula Ram v. Bhajan Singh, MANU/UP/0302/1953: AIR 1953 All 609; Pindu Kura v.
Jaladanki, MANU/AP/0105/1965: AIR 1965 AP 386 : 1965 (2) Andh WR 109.
12. Kisanlal Bachharaj Vyas v. Mohan Chandmal MANU/MH/0067/1971: AIR 1971 Bom
410 (D.B).
13. Suresh v. Shankarappa, MANU/KA/0124/1982: AIR 1982 Kant 226 : ILR (1982) 1
Kant 77.
14. Rama Kumari Meher v. Meenaketan Meher MANU/OR/0011/1976: AIR 1976 Ori 32.
15. Shrimati Dhani Devi v. Collector, Land Acquisition, Talwara MANU/HP/0011/1982: AIR
1982 HP 42.

SYNOPSIS

1. Amendments ............................... 747 5. Proceedings under Hindu Marriage

2. Scope ............................................ 748 Act ................................................. 749

3. “Duly instituted” .......................... 749 6. Proceedings under Land Acquisition

Act, 1954 ...................................... 750
4. Presentation of Plaint ................. 749

1. Amendments.
The Amendment in Order IV was made by the Amendment Act, 1999 w.e.f. 1st July, 2002.
The words “plaint in duplicate to the Court” in Sub-rule (1) of Rule 1 of Order IV has
been substituted by the Amendment Act of 1999 w.e.f. 1st July, 2002 for the words
“plaint to the court”.
By way of this amendment Sub-rule (3) was inserted in the existing Order IV. The
effect of the amendment is that the plaint will not be deemed to be duly instituted
unless it complies with the requirements as specified in Sub-rule (1) and (2) of
Rule 1 of Order IV. Order IV of the Code of Civil Procedure states as to how a suit
has to be instituted. Every suit is instituted in a Court of Law by presenting a
plaint. Previously it was not necessary to present the plaint in duplicate. However,
by the virtue of amendment it has become necessary to institute the plaint in
duplicate. A suit which is not filed in duplicate is not deemed to be properly
instituted as per the amended Sub-rule (3). The effect of these two amendment
brought about in Order IV Rule 1 is that a plaint shall not be deemed to be validly
instituted unless it is filed in duplicate and provisions of Order VI and VII are
complied with.
The intention behind the amendment in this Order was that since a copy of the plaint
is sent before Court and a duplicate copy of the Plaint is required for records. Where
the plaint is filed is not accompanied by affidavit as required by the provisions of
Order IV Rule 1 there would be no due institution of the plaint, the same is non est
in the eyes of law. When the defect is removed, namely the affidavit is filed, the plaint
is deemed to be properly instituted, but the rectification would not relate back to the
period when in view of the deeming clause, there was no due institution of the plaint
(Bhakti Hari Naik v. Vidyawati Gupta).1
However, the Law Commission in its 163rd report felt that such a rule may lead to
innumerable complications. This rule would give room for objection by the Defendant
that the plaint does not confirm to one or the other requirements of Order VI or Order
VII which may contribute to delaying the suit further. Moreover, from the point of

®
747
748 Code of Civil Procedure, 1908 [O 4, R. 1

limitation the Sub-rule 3 may give rise to considerable difficulty. The Law Commission
recommended that this Sub-rule 3 may be dropped and instead a time limit may be
prescribed within which all defects and objections to the presentation of plaint have
to be rectified. The Commission further recommended that an outer time limit of 30
days would appear appropriate.
It has been held by the Allahabad high court that where a plaint is presented without
complying with the requirements of Orders VI and VII of Code of civil procedure it will
not entail automatic dismissal. If a plaint is not properly signed and verified it is a
mistake which can be rectified subsequently (Bal Mukund Prasad Gupta v. Mathura
Prasad).2

2. Scope
Under Order IV, Code of Civil Procedure, the procedure has been prescribed regarding
institution of suits. Rule 1 of Order IV, Code of Civil Procedure contemplates that
every suit shall be instituted by presenting a plaint in duplicate to the Court or such
officer as it appoints in this behalf. Before instituting the suit the plaintiff is required
to comply with the rules contained in Orders 6 and 7 so far as they are applicable.
Sub-rule (3) of Rule 1 of Order IV has been inserted by the Amendment Act, 1999.
This sub-rule contains that the plaint shall not be deemed to be duly instituted unless
it complies with the requirements specified in Sub-rules (1) and (2). On conjoint
reading of Sub-rules (1), (2) and (3) of Rule 1 of Order IV, Code of Civil Procedure,
it is clear that the plaintiff is required to comply strictly the provisions contemplated
under Orders VI and VII of the Code of Civil Procedure, so far as they are applicable
(Shyam Singh v. GSM Association).3
Every proceeding in the Court is not commenced by the presentation of plaint (State
Trading Corpn. v. Ironside).4 It is only a suit which is to be instituted by presenting
plaint. The plaint must be presented either to the Court or the Officer of the Court
authorized to receive the plaints. The plaintiff must comply with the Rules of Order
VI and Order VII so far these are applicable to his plaint. When the Court is closed
on the last day of limitation, the suit can be instituted on next re-opening day by
presenting the plaint. Presentation of plaint by a person not duly authorised is an
irregularity and not an illegality (Kanhaiya v. Panchayati).5 In an urgent matter a plaint
can be presented even after Court hours.
The Code itself therefore envisages two stages - first of the presentation of the
plaint and the next of the admission of the plaint. The suit is not admitted to the
register of the suits and a number given to it merely on the presentation of the
plaint. After the presentation the plaint is scrutinized. If there are any defects in
the same, the plaintiff is required to remove them. The removal of defects is a
matter of procedure. It is only after the defects are removed that it becomes
eligible for an entry and a number in the register of suits (Union Bank of India v.
Sunpac Corporation).6
Rule 2 of Order 33 makes it clear that an application for permission to sue as a pauper
is not a plaint, for otherwise no provision need have been made to enjoin that it shall
contain the particulars required in regard to plaints in suits or that it shall be signed
and verified in the manner prescribed for the signing and verification of pleadings.
Moreover Rule 8 makes it clear that until and unless the application is granted, the
application is not to be deemed a plaint. Therefore, in the contemplation of Rule 1 of
®
748
O 4, R, 1] Order 4 749

Order 4 an application for leave to sue as a pauper will not be a suit before leave is
granted because at that stage the application is not to be treated as a plaint (Jyoti
Prakash Banerjee v. Chameli Banerjee).7

3. “Duly instituted”
The expression “duly” used in Sub-rule (3) of Rule 1 of Order IV of the Code implies
that the plaint must be filed in accordance with law. Rules of procedure are made to
further the cause of justice and not to prove a hindrance thereto. The intention of the
legislature in bringing about the various amendments in the Code with effect from
1st July, 2002 were aimed at eliminating the procedural delays in the disposal of civil
matters. The amendments effected to Section 26, Order IV and Order VI Rule 15, are
also geared to achieve such object, but being procedural in nature, they are directory
in nature and non-compliance thereof would not automatically render the plaint non-
est (Vidyawati Gupta v. Bhakti Hari Naik; Apeejay House Private Limited v. Punjab
National Bank).8

4. Presentation of plaint.
As mentioned above the plaint must be presented either to the Court or to the
Officer of the Court authorised to accept it. And presentation of plaint must be made
either by party or by his counsel or any other authorised agent. Where an advocate
presents the plaint without filing a vakalatnama with the plaint it should be returned
to him. Before presentation the plaint must be duly signed and verified. However if
the plaint is presented with defects as to signatures at one or two places or error
in verification, the same can be cured during the pendency of suit (All India Reporters
v. Ramchandra).9 Where the plaint is presented by an unauthorised person and
Court has accepted it, it is a mere irregularity and not illegality and the case can
be proceeded with (Basanta v. Lakshma).10 Where the limitation of suit is expiring,
the Judge may accept the plaint at his residence even after Court hours (Tula Ram
v. Bhajan Singh; Pindu Kura v. Jaladanki).11 There is, therefore, nothing in Sub-rule
(1) to indicate that a plaint must be presented on the Court premises or during Court
hours. All that is required is that it should be presented to the Court or such officer
as it appoints in this behalf. Thus the Plaint could be presented to the Judge at his
residence after Court hours (Kisanlal Bachharaj Vyas v. Mohan Chandmal).12 A
unsigned plaint even if presented by party can vitiate proceedings (Suresh v.
Shankarappa).13

5. Proceedings under Hindu Marriage Act.

Though proceedings under Sections 9 to 13 of Hindu Marriage Act are initiated by
petitions the formalities and material particulars required to be mentioned in those
petitions are as in a plaint. The petitions are to be verified. All material particulars are
to be pleaded. The essential rights claimed in the petition must be properly focussed
in the averments so as to enable the Court to decide the issues in a regular trial. There
is, therefore, no particular sanctity in the user of the word petition or plaint. According
to the facts and circumstances of the case as required under law a petition may
essentially amount to a plaint. The difference between the two appears to be more
of nomenclature than of substance. On the aforesaid analysis, petitions filed under
Sections 9 to 13 of the Act are essentially in the nature of a plaint (Rama Kumari
Meher v. Meenaketan Meher).14

®
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750 Code of Civil Procedure, 1908 [O 4, R. 2

6. Proceedings under Land Acquisition Act, 1954.

It is now well settled that the proceedings on a reference under Section 18 of the Land
Acquisition Act do not amount to a suit. In this connection one has to remember that
the word ‘suit’ is a term of art in law, it does not mean any litigation between two
persons. It is true that the word ‘suit’ is not defined anywhere —not even in the Code.
But then Order 4 of the Code relates to the institution of suits, Rule 1 (1) tells us how
the suit is commenced. It states “every suit shall be instituted by presenting a plaint
to the Court or such officer as it appoints in this behalf in other words, the suit comes
into existence only by presentation of a plaint. It is true that by a deeming fiction any
proceeding can be deemed to be a suit but there is nothing in the Act which shows
that the proceeding on a reference amounts to a suit, It is true that under Section 26
of the Act an award given by the Court on a reference is deemed to be a decree within
the meaning of Section 2, Clause (2) of the Code. However, this does not mean that
the proceeding is to be deemed to be a suit, if the object of the Legislature was to
make the proceeding a suit it would have used the deeming provision and made the
proceeding a suit and not confined itself to only making the award a decree (Shrimati
Dhani Devi v. Collector, Land Acquisition, Talwara).15

2. Register of suits.—
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 entries shall be numbered
in every year according to the order in which the plaints are admitted.

Case Cited
1. Kishan Lal v. Mohan, MANU/MH/0067/1971: AIR 1971 Bom 410.
2. Vijai Pratap Singh v. Dukh Haran Singh, MANU/SC/0394/1962: AIR 1962 SC 941.
3. U. P. Act 57 of 1976, Section 5 (1.1.1977).
4. Kallu v. IX Addl. Distt. Judge, (1982) 1 All RC 61. Also same view in Anand Gupta v.
Navin Agrawal, MANU/UP/0242/1984: AIR 1984 All 387 : 1984 (2) All Rent Cas 447.
5. Kalawati v. II Civil Judge, (1983) 1 All RC 740.

COMMENTS
Only the plaints admitted need to be registered in the Register of Civil Suits. The
plaint which is liable to be returned due to the defects on the face of it need not be
registered e.g. a plaint unsigned by the Plaintiff. However, once a plaint is admitted
the suit stands instituted on date of presentation of plaint and not on the date on
which it is actually registered (Kishan Lal v. Mohan).1 For example—A suit in forma
pauperis is treated to have been instituted from the date of presentation of plaint with
the prayer for the leave required under Order XXXIII (Vijai Pratap Singh v. Dukh Haran
Singh).2 Where a plaint returned for presentation before the proper Court, on the
presentation before such another Court, the fresh institution begins from the day the
plaint is presented in such competent Court and the suit is to be registered there
again, but where the plaint is returned by a Court for making amendment and then
received back, it needs no fresh registering. Same is the position of suit restored
under Order IX of the Code.

®
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O 5, R, 1] Order 5 751

The object of Order IVA, Rule 1 as applicable in U P is to avoid multiplicity of

proceedings, duplication of recording of evidence and overlapping of findings (Kallu
v. IX Addl. Distt. Judge; Also same view in Anand Gupta v. Navin Agrawal).4 The rule
expressly empowers the Courts in U P to consolidate the suits if it is found expedient
in the interest of justice to direct a joint trial. However the suits consolidated must
be pending in the same Court and evidence of such cases is such which can be
recorded by consolidating them. In other states this kind of power is exercised under
Section 151 of the Code of Civil Procedure. The suits in which there is no relationship
in causes of actions cannot be consolidated even if the parties are same e.g. A suit
for specific performance cannot be consolidated with a petition under Rent Control
Law (Kalawati v. II Civil Judge).5

Order V
Issue and Service of Summons
Issue of Summons

1. Summons.—
(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 30 days from the date of service of summons
on that Defendant :
Provided that no such summons shall be issued when a Defendant has
appeared at the presentation of plaint and admitted the Plaintiff’s claim.
Provided further, that where the Defendant fails to file the written statement
within the said period of 30 days, he shall be allowed to file the same on
such other day as may be specified by the Court, for reasons to be
recorded in writing, but which shall not be later than 90 days from the date
of service of summons.
(2) A Defendant to whom a summons has been issued under Sub-rule (1) may
appear:
(a) in person, or
(b) by a pleader duly instructed and able to answer all material questions
relating to the suit, or
(c) by a pleader accompanied by some person able to answer all such
questions.
(3) Every such summons shall be signed by the Judge or such officer as he
appoints, and shall be sealed with the seal of the Court.

AMENDMENTS
Amendments Procedure (Amendment) Act, 2002
The Code of Civil Procedure (Amendment) substituted Rule 1 to Order 5.
Act, 1999 and further by the Code of Civil Rule 1 was previously also amended by
the Code of Civil Procedure (Amendment)

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751