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Section 26: Institution of suits

Code of Civil Procedure • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1908
Section 25 All 158 Sections of Code of Civil Procedure Section 27
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Order Sec 2(14)

Legal Commentary & Landmark Judgments: Section 26

Section 26 of the Code of Civil Procedure, 1908 governs the formal institution of suits, mandating presentation of a plaint supported by a sworn affidavit proving facts.

  • Procedural Mechanism: Section 26(1) establishes the foundational procedure: 'Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.' Sub-section (2), inserted by the Code of Civil Procedure (Amendment) Act, 1999, commands: 'In every plaint, facts shall be proved by affidavit.'.
  • Operational Mechanism & Scope: The 1999 amendment introduced a fundamental shift by requiring every plaintiff to swear a formal affidavit verifying the factual averments in the plaint at the threshold of institution. This prevents frivolous, speculative, or fabricated pleadings, making the plaintiff criminally liable for perjury under Section 193 IPC if false factual statements are made.

Section 26 establishes the formal gateway for civil litigation, requiring every plaint to be verified on affidavit to ensure factual accountability from the inception of the suit.

Key Landmark Precedents:
  • Salem Advocate Bar Assn. (I) v. Union of India, (2003) 1 SCC 49: The Supreme Court upheld the constitutional validity of Section 26(2), holding that the requirement of verifying facts by affidavit alongside the plaint is designed to deter irresponsible and reckless litigation.
  • Vidyawati Gupta v. Bhakti Hari Nayak, (2006) 2 SCC 777: The Supreme Court held that the requirement of an affidavit under Section 26(2) is procedural; an initial omission to file an affidavit is a curable irregularity that does not render the suit void ab initio.
Legal Commentary:

Under Section 26(2) read with Order VI Rule 15A, every plaint must be accompanied by a formal Statement of Truth or supporting affidavit. Omission to file the verification affidavit is curable by subsequent filing with leave of the court, but willful misrepresentation exposes the affiant to contempt and penal perjury prosecution.

Section 25 All 158 Sections of Code of Civil Procedure Section 27