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CPC 1908 — Section 26: Institution of suits

Code of Civil Procedure, 1908 · Part I — Suits in General

Institution of Suits

Section 26 — how every civil suit legally begins

§ 26

The bare Act

26. Institution of suits.

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

(2) In every plaint, facts shall be proved by affidavit.

Sub-section (2) inserted, and the original section renumbered as sub-section (1), by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), s. 2 — w.e.f. 1 July 2002.

Section 26, decoded

Sub-section (1) — how a suit starts

A suit is born only when a plaint is presented to the proper court — or by any other manner the Rules prescribe. No plaint, no suit. “Presentation” means physically (or electronically) filing it before the officer/court empowered to receive it.

  • Mode 1 — Presentation of a plaint (the normal way; see Order IV & Order VII).
  • Mode 2 — “such other manner as may be prescribed” — e.g. a suit by an indigent person begins with an application under Order XXXIII, which is then numbered as a plaint.
Sub-section (2) — facts on oath

Every plaint must now be backed by an affidavit proving the facts stated in it. This is read with the verification of pleadings under Order VI, Rule 15, and the affidavit under Order VI, Rule 15­A. Purpose: to discourage false or reckless pleadings by putting the plaintiff on oath from day one.

How a suit is instituted — step by step

  1. 1

    Draft the plaintA written statement of the claim containing all particulars required by Order VII, Rule 1 (court, parties, facts, cause of action, jurisdiction, relief, value).

  2. 2

    Present it to the proper Court§26(1): the suit is instituted “by the presentation of a plaint.” It must go to the court competent under the Place of Suing rules (§§15–20).

  3. 3

    Verify & swear the affidavit§26(2): the facts must be proved by affidavit, alongside verification under Order VI, Rule 15 (and Rule 15­A). The plaintiff is now on oath.

  4. 4

    Court examines & admitsUnder Order IV, Rule 1, the suit is instituted by presenting the plaint in duplicate; it must comply with Orders VI & VII or it may be returned/rejected (Order VII, Rules 10–11).

  5. 5

    Registered as a suitParticulars are entered in the Register of Suits under Order IV, Rule 2, and the suit gets its number. The suit is now formally instituted.

What must a plaint contain? (Order VII, Rule 1)

(a) the name of the Court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) where the plaintiff or defendant is a minor or of unsound mind, a statement to that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where a set-off is allowed or part of the claim relinquished, the amount so allowed or relinquished;
(i) a statement of the value of the subject-matter for jurisdiction and court-fees, so far as the case admits.

“…or in such other manner as may be prescribed”

Indigent person

A poor plaintiff who cannot pay court-fees institutes by an application under Order XXXIII; once allowed, it is numbered and registered as a plaint.

Summary suit

On bills, hundis and certain debts, a suit is filed in the special form under Order XXXVII.

Other prescribed modes

Any other manner the First Schedule (Orders & Rules) may prescribe — that is what “as may be prescribed” points to.

Note — Commercial disputes

For commercial disputes of a Specified Value, the Commercial Courts Act, 2015 (Schedule) adds a proviso to sub-section (2):

“Provided that such an affidavit shall be in the form and manner as prescribed under Order VI, Rule 15­A.”

This applies only to commercial-court matters — the general Code retains just sub-sections (1) and (2) above.

Dissecting §26 — each part on its own tab





📄 Two ways to institute a suit

📝
By a PLAINT

The normal mode — a written plaint presented to the proper Court (Order IV r.1, Order VII).

OR
⚙️
In such other manner as PRESCRIBED

Special prescribed modes — e.g. suits by indigent persons (Order XXXIII), summary suits (Order XXXVII).

Either way, the act of starting the case = “institution”.
RuleEvery suit shall be institutedMandatory and universal — “every” suit must be commenced in one of the ways that follow; there is no informal way to start a civil suit.
Mode 1by the presentation of a plaintThe standard mode — a plaint (the plaintiff’s written claim) is presented to the competent Court. Read with Order IV and Order VII.
Mode 2or in such other manner as may be prescribedAn enabling alternative — the Rules may prescribe other ways to institute (indigent persons Order XXXIII, summary procedure Order XXXVII). “Prescribed” = by Rules under the Code (§2(16)).

⚖️ The plaint’s facts must be sworn

📝
Plaint filed

The claim is set out in the plaint.

→
✍️
Facts on affidavit

Every plaint’s facts must be proved by affidavit (verification, Order VI r.15).

→
✅
Authenticated

The party swears to the facts — accountability against false claims.

RequirementIn every plaint, facts shall be proved by affidavitInserted by the CPC (Amendment) Act, 1999 (w.e.f. 1-7-2002): the facts pleaded in every plaint must be backed by an affidavit — a check against reckless or false pleadings. (The special form of this affidavit for commercial disputes is in the next tab.)

🏢 Proviso — the commercial “statement of truth”

🏢
Commercial dispute

A commercial dispute of a Specified Value (Commercial Courts Act, 2015).

→
📋
Affidavit per O.VI r.15A

The affidavit must be in the form and manner of Order VI rule 15A.

→
⚖️
“Statement of truth”

A stricter, signed statement of truth — not required for ordinary suits.

💡 Why this proviso matters

It applies only to commercial disputes of a Specified Value — it does not change the general Code. It raises the verification standard for high-value commercial litigation to curb false pleadings.

Proviso (commercial)Provided that such an affidavit shall be in the form and manner as prescribed under rule 15A of Order VIAdded by the Commercial Courts Act, 2015. For commercial disputes of a Specified Value, the §26(2) affidavit must follow the detailed “statement of truth” format of Order VI r.15A — a higher verification standard than the ordinary affidavit, and limited to such commercial disputes.

How sub-sections (1) and (2) connect

🔗 The vehicle — and the truth inside it

SUB-SEC (1) — THE VEHICLE
How the suit is started

A suit is instituted by a plaint (or other prescribed manner). This is the act that brings the case into existence.

THE PLAINT

↔
same document
SUB-SEC (2) — THE TRUTH
Its facts must be sworn

In every plaint, the facts must be proved by affidavit — a quality check on the contents of that vehicle.

They meet at one document — the plaint. (1) governs how it is presented (the act of institution); (2) governs the integrity of what it says (facts on affidavit). (2) presupposes (1): there is no affidavit-of-facts without a plaint to verify. So §26 is form + truth — start the suit properly, and stand behind its facts on oath.

The maxim behind it

The maxim behind it

Sublato fundamento cadit opus

“The foundation being removed, the structure falls.”

Sublato — (being) removed / taken away
fundamento — the foundation
cadit — falls
opus — the work / structure

The plaint is the foundation of a suit. §26 fixes how that foundation is laid — by a properly presented plaint whose facts are sworn. If the foundation is defective (no valid plaint, or facts not verified), the entire suit built on it collapses — the whole structure stands or falls with its base.

Reads with

Order IV — Institution of Suits
Order VI — Pleadings (Rules 14, 15, 15A)
Order VII — Plaint
Place of Suing — §§15–25 →