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CODE OF CIVIL PROCEDURE - I

RULES OF

PLEADINGS
SURVEY AND

CRITICAL
ANALYSIS

Submitted by:
T USHAAR T ALWAR
I D N O . 1773
III Y EAR B . A . LL . B . ( HONS )
8th S EPTEMBER , 2011
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Table of Contents

TABLE OF CASES.......................................................................................................................4
INTRODUCTION..........................................................................................................................5
RESEARCH METHODOLOGY.....................................................................................................7
1. ORDER VI: PLEADINGS......................................................................................................8
1.1 GENERAL RULES REGARDING PLEADINGS .......................................................................8
1.2 OBJECT OF PLEADINGS...................................................................................................10
1.3 EFFECT OF DEFICIENCY IN PLEADINGS..........................................................................10
1.4 BASIC RULES OF PLEADINGS: RULE 2............................................................................12
1.4.1 Facts and not law....................................................................................................12
1.4.2 Material Facts and Material Facts only.................................................................13
1.4.3 Facts and not Evidence...........................................................................................14
1.4.4 Concise Form..........................................................................................................15
1.5 PLEADINGS IN WHICH PARTICULARS ARE REQUIRED UNDER THE CODE: RULES 4-13...15
1.6 SIGNING AND VERIFICATIONS OF PLEADINGS: RULES 14 & 15......................................18
1.7 STRIKING OUT PLEADINGS: RULE 16..............................................................................19
1.8 AMENDMENT OF PLEADINGS: RULES 17 & 18...............................................................19
1.8.1 When Leave to Amend Might be Granted...............................................................19
1.8.2 When Leave to Amend would be refused................................................................22
2. PLAINT: ORDER VII............................................................................................................24
2.1 PARTICULARS TO BE CONTAINED IN A PLAINT...............................................................24
2.2 RETURN OF PLAINT: RULE 10.........................................................................................28
2.3. REJECTION OF PLAINT: RULE 11...................................................................................32
2.3.1 Non-Disclosure of Cause of Action.........................................................................35
2.3.2 Where Relief Claimed is undervalued.....................................................................35
2.3.3 Where Plaint is insufficiently stamped....................................................................36
2.3.4 Where Suit appears to be barred by law.................................................................36
2.4 PRODUCTION OF DOCUMENTS ON WHICH THE PLAINTIFF RELIES: RULES 14 & 15.......36
2.4.1 Effect of Non-Production:.......................................................................................37
3. WRITTEN STATEMENTS: ORDER VII.................................................................................38
3.1 SPECIFIC RULES: RULES1 TO 5, 7 TO 10.........................................................................38

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3.1.2 Rules of defence......................................................................................................38
CONCLUSION............................................................................................................................41
BIBLIOGRAPHY........................................................................................................................42

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Table of Cases

1. Amar Chand v. Union of India, AIR 1973 SC 313.


2. Hindalco Industries Ltd. v. Union of India, (1994) 2 SCC 594.
3. Jaya Sen v. Sujit Kumar Sarkar, AIR 1998 Cal 288.
4. Kuldeep Singh v. Ganpat Lal, (1996) 1 SCC 243.
5. Ladli Prasad v. Karnal Distillery, AIR 1963 SC 1279.
6. M.L. Singhal v. Pradeep Mathur & Anr., AIR 1996 Del. 261.
7. R.S.D.V. Finance Company Private Limited v. Shree Vallabh Glass Works Limited,
AIR 1993 SC 2094.
8. Saleem Bhai v. State of Maharashtra, AIR 2003 SC 759.
9. Samar Singh v. Kedar Nath, AIR 1987 SC 1926.
10. Throp v. Holdsworth, 1876 3 Ch d 637, 639.
11. Venkatesh Iyer v. Bombay Hospital Trust, AIR 1998 Bom. 373.

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Introduction

A trial, which may be defined as a judicial examination and determination of issues between
parties to action, whether they be issues of law or of fact, before a court that has
jurisdiction,1 is an essential cornerstone of the Indian legal system, following the
doctrine laid down in Maneka Gandhis case that the procedure adopted must be just
reasonable and fair and not arbitrary, unjust or fanciful. At the same time what must be
remembered is that procedure is a hand-maiden of justice and violation of procedure
alone is not the sole reason for the erring party to suffer. Pre-trial procedure has to be
looked at in this very manner. In order for the justice administration system to work
properly, some sort of foundation to support the entire superstructure of judicial thinking
and decision-making (that is a trial), must exist.

The Civil Procedure Code (hereinafter C.P.C) is designed to facilitate justice and further its
ends and is not a penal enactment for punishing people, not a thing intended or designed
to trip up people. Too technical a construction of sections, which leaves no room for
elasticity of interpretation, should therefore, be guarded against, and provided that justice
is done to both the sides. The function of adjectival law (the C.P.C is one) is to facilitate
justice and further its ends. Provisions of law are not mere formulae to be observed as
rituals. Beneath the words of a provision of law, lies a juristic principle. The principle
behind pre-trial procedure is to facilitate the easy and smooth functioning of the justice
system. The effect of the pre-trial procedure is to ensure that the justice is served better,
as both the parties are given the bases on which one of them is to be found liable, and all
the means to defend themselves. The pre-trial procedure also ensures that the parties are
not disadvantaged at whatever stage and the basic premise is that justice is done.

It is precisely this role that the pre-trial proceedings play in the context of The Code of Civil
Procedure. They lay down a solid foundation so that the later proceedings are able to
carry on smoothly and without any difficulties. If the various rules regarding pre-trial
proceedings are strictly and carefully followed, there would be no problems faced by
either the parties to the suit or the judge at the trial or later stages.

1
Nolan, J. R., and Nolan-Haley, J. M., Blacks Law Dictionary 1504 (2nd ed., St. Paul: West Publishing Co.,
1990).

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Thus, in context on the significance of pre-trial proceedings, this paper aims at surveying and
critically analyzing pleadings, whose whole object is to bring parties to definite issue and to
diminish expense and delay to prevent surprise so that he can meet it. In other words, the sole
object of pleadings is to ascertain the real disputes between the parties, to narrow down the
area of conflict and to see where the two sides differ, to preclude one party from taking the
other by surprise and to prevent miscarriage of justice.

Order VI (hereinafter O.) deals with pleadings in general. Rule 1 defines pleadings, while
Rule 2 lays down the fundamental principles of pleadings. Rules 3 to 13 require the parties to
supply necessary particulars. Rules 14 and 15 provide for signing and verification of
pleadings. Rule 16 empowers the court to strike out unnecessary pleadings. Rules 17 and 18
contain provisions relating to amendment of pleadings.

Further, the paper aims to discuss two important limbs of pleadings, namely (i) plaint; and (ii)
written statement and the matters incidental hereto.

Rules 1 to 8 of Order VII relate to particulars in a plaint. Rule 9 lays down procedure on
plaint being admitted. Whereas Rule 10 provides for return of plaint, Rules 11 to 13 deal with
rejection of plaint. Rules 14 to 18 contain provisions relating to production of documents.
Order VII enacts law relating to a written statement. Rules 1 to 5 and 7 to 10 require
particulars to be stated in a written statement and grounds of defense. Rules 6 and 6A to 6G
deal with doctrines of set-off and counter-claim respectively.

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Research Methodology

Aims and Objectives:


This paper aims at describing the procedural and content based aspects of pleadings plaints
and written statements. The aim of this project to make an exhaustive examination of the
significance of pleadings in civil proceedings in India, to study the application of the Rules
pertaining to the relevant Orders by the Courts, and their attitude towards the specific
procedures. The object is to establish the importance and indispensable nature of pleadings.

Scope and Limitations:


The scope of this project is limited to studying the pleadings and associated procedures in
civil proceedings as are applied in India. The project was limited, if at all, by time and space
constraints.

Sources of Data:
The sources for this project include, for the most part, primary sources such as pertinent
cases. Secondary sources such as commentaries and articles have also been referred to.

Research Questions:
1. What are pleadings in general?
2. What are plaints and the associated procedures?
3. What are written statements and its procedural significance?

Style of Writing:
This project is largely written in a descriptive style, with some analytic reasoning.

Mode of Citation:
The researcher has adopted a uniform mode of citation throughout the project.

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Chapter 1: ORDER VI - Pleadings

1.1 General Rules Regarding Pleadings

Pleadings are a fundamental part of the civil proceedings, evidence for which is obtained
from the provisions of The Code of Civil Procedure. Every suit, the Code provides, shall
be instituted by presenting a plaint to the court or such officer as it appoints in this
behalf.2 The defendant shall at or before the first hearing or within such time as the court
may permit, present a written statement of his defense. 3 The rules regarding pleadings
contained in O. VI apply to both, the plaint as well the written statements. O. VII makes
special provisions regarding plaints while O. VIII makes such specific provisions for the
written statement. 4

The plaint and the written statement together constitute the pleadings in a civil suit. The Code
of Civil Procedure itself clearly states that Pleading shall mean plaint or written
statement.5 A simple distinction can be drawn as follows: The plaintiffs pleading is the
plaint and the defendants pleading is the written statement. Where, however, the
defendant in his written statement pleads a set off or puts forward a counter claim against
the plaintiff, the plaintiff can file a written statement in answer to such set off or counter
claim. After the defendant has filed his written statement, the parties may file written
statement or additional written statements with the leave of the court or under orders of
the court under O. VIII or O. IX of the C. P. C.

As per Jessel MR in Throp v. Holdsworth6,


the whole meaning of the system of pleadings is to narrow the parties to definite issues and
thereby diminish expense and delay especially as regards the amounts of testimony required
on either side at the hearing.
The case is looked at in further detail. The plaintiffs alleged that the defendants had agreed to
lease a brickfield with the plaintiffs and carry on in partnership with them the business of
manufacturing bricks. The plaintiffs also said that draft articles to the same effect had been
approved by both parties. The defendant in this case admitted to the internship but denied that
2
O. IV, R. 1(1).
3
O. VIII, R. 1.
4
M. P. Jain, Code of Civil Procedure 505 (2004 ed., Delhi: Wadhwa Publishers, 2004).
5
O. VI, R. 1.
6
Throp v. Holdsworth, 1876 3 Ch d 637, 639.

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the terms of partnership had been agreed upon. Defendant denied that terms of agreement had
been definitely agreed upon as alleged.7

Here the court held that this statement of the defendant was evasive. It was held that in
construing pleadings and written statements a strict interpretation must be adopted since the
very object of pleadings is that either party knows what the issue(s) at hand are and prevent
the issue from being enlarged since this would prevent the party from knowing what the real
point to be discussed and decided was. In this case since the terms of agreements were only
generally and not specifically denied it was held to be an agreement. The object of pleadings
is to see where the parties differ so that each party is aware of the issues at hand and is able to
substantiate its stand with evidence8. The parties are not allowed to bring in any material facts
or relief in the trial which they have not claimed in their pleadings.

In Jaya Sen v. Sujit Kumar Sarkar9, the plaintiff-respondent entered into an agreement
purchase of a flat. The said agreement for sale was an oral one. Admittedly there existed a
dispute by and between the plaintiff and the defendant as to whether a garage was also the
subject-matter of the aforesaid transaction or not. The respondent had put the appellant in
possession of the aforementioned premises in part performance of the contract. As despite the
same the balance consideration amount was not paid by the appellant, the plaintiff filed the
aforementioned suit; praying for specific performance.

The trial judge passed a decree for specific performance of the contract and payment of the
balance with interest.

In the appeal the appellant-defendant argued that the court could not grant 10% interest on the
balance consideration. The plaintiff-respondent claimed that the interest was valid as it was
by way of equitable relief since the possession of the property had been handed to the
appellant-defendant in 1986. The question which therefore arose before the court was
whether the Judge could grant the interest on the balance amount.

Here, the Calcutta High Court held that there was nothing on record to show that the interest

7
Supra note 4, at 506.
8
Sudipto Sarkar & V. Manohar, Sarkar Code of Civil Procedure 876 (10th ed, Nagpur: Wadhwa and Company,
2005).
9
Jaya Sen v. Sujit Kumar Sarkar, AIR 1998 Cal 288.

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was asked for by the plaintiff at any point during the suit. There was no prayer claiming the
interest and no such statement has been made in the plaint. Therefore the Court set aside the
decree for interest passed by the trial court.

Thus this decision highlights the importance of mentioning all reliefs sought in the pleading
itself for the petitioner is bound by the same and cannot be awarded any other relief even if
the Court wanted to since it is not mentioned in the plaint. Thus the pleadings are highly
important for they dictate the course of the trial and what reliefs the plaintiff is entitled to and
the grounds that each party can argue in the court.

1.2 Object of Pleadings


The following has been put forward as the object of pleading by the special committee in
their report:
In any event, before the trial comes on it is highly desirable that the parties should know
exactly what they are fighting about; otherwise they may go to a great expense in procuring
evidence to prove at the trial facts which their opponents will at once concede. It has been
found by long experience that the most satisfactory method to attain this object is to make
each party in turn state his own case and answer that of his opponent before the hearing. Such
statements and answers to them are called pleadings.10

It has also been laid down that pleadings are necessary to prevent surprise at the hearing,
because a party is entitled to know the case of his opponent before he can meet it. To
summarize the whole object of pleadings is to bring parties to definite issues and to diminish
expense and delay and to prevent surprise at the hearing. A party is entitled to know the case
of the opponent so that he can meet the charges against him.

1.3 Effect of Deficiency in Pleadings


It is absolutely necessary for the interests of the parties to draft the pleadings in a
comprehensive, concise and clear-cut manner. There are several reasons for this. For instance,
no amount of evidence can be looked into in support of a plea not raised in the pleading.

10
M. R. Mallick, Gangulys Civil Court Practice and Procedure 200 (12th ed., Calcutta: Eastern Law House,
1997).

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However, when parties go to trial with the knowledge that a particular question is in issue,
although no specific issue has been framed but they adduce evidence thereon, the above
cannot apply.11

A party is expected and bound to prove the case as alleged by him in his pleading; this is
known as the principle of secondum allegate ate probate. A party is not permitted to set up a
case inconsistent with what he has himself alleged in his pleading, except by way of an
amendment to the plaint. However, slight variance between pleading and proof is not fatal.12

For instance, in a suit for ejectment against the defendant, the defendant pleaded an
agreement to lease for a further period. As the period pleaded by the defendant expired, the
plaintiff applied for a decree under O. XII, R.6 of the C. P. C. and the court granted the decree
on the ground that in this case when the plaintiff prays for a decree on the clear admission of
the defendant the relief could be granted even without an amendment.13

Whenever a question about lack of pleading is raised before a court of law, the focus of the
enquiry should not be so much about the form of pleadings, but on finding out whether in
substance the parties knew the case and the issues upon which they went to trial. Once it is
found that in spite of deficiency in pleadings, the parties knew the case and they proceeded to
trial on those issues by producing evidence it would not be open to the party to raise the
question of absence of pleadings in appeal.14

Therefore, if a public trust filed the suit for ejectment of the tenant on the ground of bona fide
requirement of the premises for the accommodation of the pilgrims and other specified
purposes of the trust, the omission to plead specific requirements in the pleadings cannot be
raised before the Supreme Court when the parties properly understood each others case,
issues were framed and evidence was adduced. Because of this technical omission, the
landlord cant not be non-suited.15

Suits should not fail for mere vagueness or uncertainty in the pleadings as the pleadings

11
Supra note 7, at 880.
12
Supra note 7, at 881.
13
Supra note 7, at 880.
14
Supra note 7, at 882.
15
Supra note 4, at 530.

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should be liberally construed. Interpretation of pleadings is, however, a different matter from
the essence of material facts and particulars that might prejudice the other party. It is,
therefore, the duty of the trial court to scrutinize the pleadings carefully and to require the
statement of material facts and particulars when the pleading is not precise enough. 16
However, in a suit for removal of destruction of village pathway, the plaintiff mis-described
the right as the easement right of pathway but in the plaint, there were all the ingredients of a
customary right of passage. The court there could nevertheless grant the decree based on the
customary right.

However, it has been held that where the plea of adverse possession had not been specifically
raised in the pleading, no amount of proof could substitute the pleadings, which are the
foundation of a claim of a litigating party.

1.4 Basic Rules of Pleadings: Rule 2


Order VI, Rule 2 states:
(1) Every pleading shall contain, and contain only, a statement in a concise form of the
material facts on which the party pleading relies for his claim or defense, as the case may be,
but not the evidence by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered
consecutively, each allegation being, so far as is convenient, contained in a separate
paragraph.
(3) Dates, sums, and numbers shall be expressed in a pleading in figures a well as words.17

1.4.1 Facts and not law:


The first principle of pleadings is that they should state only facts and not law. It is for the
court to find out and examine all pleas of law that might arise in the case whether urged by
the parties or not. It is defective pleading to state the inferences of law without setting out the
facts. Thus, the existence of a custom or usage is a question of fact, which must be
specifically pleaded. Similarly, intention is also a question of fact and it must be pleaded.
However, a plea about maintainability of suit raises a question of law and need not be
pleaded.18
16
17
O. VI, R.2.
18
Supra note 7, at 884.

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1.4.2 Material Facts and Material Facts only:
A material fact is one that is essential to the plaintiffs cause of action or to the defendants
defence. The material facts are those which must be alleged and proved in order to establish
the existence of the cause of action or defence. Moreover, all facts, which the party pleading
them is entitled to prove, are also material facts.

The distinction between omission to state material facts and omission to state material
particulars must be maintained. Where all the material particulars are not pleaded, the court
can ask for better particulars. But the omission to state material facts is fatal for the suit as it
renders a pleading as no-pleading. The Supreme Court has therefore held that when the
material facts constituting the cause of action are not pleaded, the suit is liable to be
dismissed in limine.19

Thus, where the defendant does not raise the plea of bar of S.17 of the Specific Relief Act, he
cannot be allowed to raise that plea at the trial. When there is no averment in the plaint that
the defendant promised to pay barred debt, the plea cannot be allowed to be raised in the trial.
A party cannot be allowed to raise a new plea in appeal unless he has pleaded the same in the
plaint or written statement. When the vendee demanded the refund of the earnest money
forfeited by the vendor, the vendee has to plead in the plaint the forfeiture was in the nature
of penalty or it was unconscionable. Without stating these material facts the plaintiff cannot
be allowed to take the plea at the hearing of the suit. If the plaintiff brought the suit for
recovery of rent from the defendant and the tenant disputed the plaintiffs ownership in the
property the plaintiff cannot take the plea at the time of trial by producing the power of
attorney that he is the power of attorney holder of the owner as the said material fact has not
been pleaded in the plaint. Plea of waiver has to be taken specifically in the pleading
otherwise the same cannot be raised at the trial. 20 When in a suit by a single creditor under S.
53 of The Transfer of Property Act, it is not pleaded in the written statement as to how the
suit is not maintainable; the plea cannot be taken at the trial. The plaintiff pleaded title by
adverse possession but failed to prove the case. He cannot at the trial take the plea that he had
acquired title by easement right to prescription.21

19
Supra note 10, at 212.
20
Supra note 10, at 214
21
Supra note 10, at 214.

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To summarize, all material facts must appear in pleadings and the necessary particulars must
be there to enable the opposite party to know the case, as he is required to meet and to warn
him. This rule is not a mere technicality, and therefore on omission to state material facts
would mean that the pleading was not even raised and that no evidence would be allowed,
until leave is given by the Court to amend the pleadings.22

1.4.3 Facts and not Evidence:


The pleadings should contain a statement of material facts on which the party relies but not
he evidence by which those facts are to be proved. Thus, in an election petition, the plea that
the successful candidate for the purpose of conveying voters contrary to the Act used cars
must be stated in the pleadings since it is a fact in issue. But the facts as to from where the
cars were obtained, who hired them and used them for conveyance of voters were merely
evidentiary facts and need not be stated in the pleadings.23

The pleading shall contain the material facts and not the evidence of the facts. The pleading
need not contain the evidence by which the facts are to proved. One case which highlights
this issue is M.L. Singhal v. Pradeep Mathur & Anr.24.The plaintiff had taken his wife
Gayatri Devi for treatment to Dr. Pradeep Mathur. The main contention is that despite being
aware of the fact that Smt. Gayatri Devi was suffering from renal problems, the doctor did
not avail the assistance of a nephrologists and was negligent towards his duties. Other
mishaps were also alleged against the doctor and the hospital authorities. The plaintiff
claimed great mental trauma as a result of his wifes untimely death.

Thus the plaintiff claimed gross negligence on the part of the doctor and the hospital which
had resulted in his wifes death. The plaintiff alleged that doctor was negligent which he
described in the following words "highly rash, negligent and callous manner of treatment
given to deceased Gayatri Devi, as a result of which she died". The defendants in their
written statement claimed that the plaintiffs had lifted these words of judgments without
understanding the proper significance of these words. They claimed that the mere use of these
words did not establish negligence on the part of the defendants.

The court rejected this argument of the defendants and reiterated that the plaintiff need not
give evidence in the plaint. It would be sufficient if he mentioned the grounds on which the
22
Supra note 20, at 215.
23
Supra note
24
M.L. Singhal v. Pradeep Mathur & Anr., AIR 1996 Del. 261.

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claim was based. The court reiterated that the pleading was supposed to be concise so that
upon its reading the other side would be able to gauge the issues at hand and prepare its case.
Therefore, in this case the court held that the evidence with respect to the claim made need
not be mentioned in the plaint and only the allegation with material facts needs to be made.
Brief and precise plaints were of primary importance.

1.4.4 Concise Form:


The pleadings should be drafted with brevity and precision. The material facts should be
stated precisely and coherently. The importance of a specific pleading can be appreciated
only if it is realised that the absence of a specific plea puts the defendant at a great
disadvantage. A party cannot be allowed to keep his options open until the trial and adduce
such evidence as seems convenient and handy.

The other rules as to pleadings are laid down in Order VI, Rules 4-13. A short analysis of the
rules regarding particulars is made below.

1.5 Pleadings in which Particulars are required under the Code:


Rules 4-13
In order to make pleading clear and in order that the other party is not taken by surprise
particulars are required to be given in the pleading. The main object of particulars in
pleadings is to narrow down the issues and to limit the trial to matters set out in them. What
particulars are required varies from case to case. However, the Code enjoins in rule 4 of
Order VI that in any matters set out therein particulars are essential and the failure to give
the particulars required is fatal for the party. Rule 4 states:

In all case in which the party pleading relies on any misrepresentation, fraud, breach of trust,
willful default or undue influence and in all other cases in which particulars may be necessary
beyond such as are exemplified in the form aforesaid particulars (with dates and items, if
necessary), shall be stated in the pleading.

Therefore, in cases of fraud, general allegations of fraud are not sufficient, if not
accompanied by particulars. The plea of fraud should set out all the acts and representations
alleged to be fraudulent in their full details and then shall state that those acts are done with

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an intention of committing the fraud. The allegation of fraud as made out must be mentioned.
It is not allowable for a party to plead one type of fraud and to prove another.25

Under this rule, particulars have to be furnished of the plea of fraud or misconduct raised in
accordance with O. VI, R. 2, C. P. C., and it is not possible to introduce by way of further
pleadings a plea of fraud or misconduct other than that raised in the pleadings. General
allegations of fraud without sufficient particulars are not sufficient to even amount to an
averment of fraud of which any court ought to take notice, however strong the language in
which they are couched may be. General allegation of fraud without sufficient particulars, if
made, prevents the party alleging it from adducing evidence upon the matter, however strong
the language in which the allegation is couched may be. Similar rules apply in matters where
undue influence and misrepresentation are alleged.26

The object of leadings is to bring the parties to a trial by concentrating their attention on the
matter in dispute, so as to narrow the controversy to precise issue and to give notice to the
parties of the nature of testimony required on either side in support of their respective cases.
A vague or general plea can never serve the purpose. Rule 4 has been evolved with a view to
narrow the issue and protect the party charged with improper conduct from being taken by
surprise. Therefore, if the particulars stated in the pleading are not sufficient and specific, the
court should, before proceeding with the trial of the suit, insist upon the particulars, which
give adequate notice to other side of the case intended to be set up.

Rule 4 envisions the general objective of all pleadings with respect to narrowing the issue and
protecting both parties from surprise. To serve this purpose, pleas cannot be ambiguous or
vague. They must give the other party notice of the nature of testimony required 27. An
example of this is Ladli Prasad v. Karnal Distillery.28

This case dealt with joint family business and its distribution. Three brothers Shanti Prasad,
Durga Prasad and Ladli Prasad were co-parcenors in the joint family business of Kishori Lal
and Sons. This was taken over by a company called Karnal Distilleries. Shares were divided
between the three branches of the family and Ladli Prasad was made Managing Director for

25
Supra note 4, at 534.
26
Supra note 4, at 534.
27
C. K. Thakker, Civil Procedure 139 (3rd ed., Lucknow: Eastern Book Co., 1994).
28
Ladli Prasad v. Karnal Distillery, AIR 1963 SC 1279.

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ten years with the right to continue for another ten years unless a notice of fifteen days within
eight years was given by a two-third majority at a special general meeting held for the
purpose of terminating his appointment as Managing Director.

There was a great disparity in the remuneration received by Ladli Prasad and the other
Directors which led to disputes between the families. At a general meeting of the company, it
was resolved that Ladli Prasad be removed from his office and that Shanti Prasad be
appointed Managing Director instead. But Ladli Prasad declined to hand over charge of the
office to Shanti Prasad.

A suit was thereupon filed by Shanti Prasad in the Court of the Subordinate Judge, Karnal, on
behalf of the Company against Ladli Prasad. Ladli Prasad in his turn filed a suit for a
declaration that Shanti Prasad had ceased to be a Director of the Company. In the suit filed by
Shanti Prasad, the trial Court appointed joint receivers to manage the affairs of the Company
for the duration of the suit. Ladli Prasad appealed against this order and obtained a stay order
against the same. Later, in another general meeting Ladli Prasad resigned as Managing
Director of the company and he was instead appointed as a director and chairman. At a
subsequent meeting at which Ladli Prasad was not present, the others passed a resolution
removing him from his directorate and chairmanship. Following this, Ladli Prasad filed a suit
for a declaration that the last general meetin was illegal and ineffective. The defendant
claimed that plaintiff had used undue influence in obtaining the directorship and chairmans
post.

The Court in this case brought attention to Order VI, Rule 4 and stated that if a vague plea
were allowed then it would vitiate the objective of pleadings and the party pleading must
therefore be required to plead the precise nature of the influence exercised, the manner of use
of the influence, and the unfair advantage obtained by the other. Justice Shah stated that, A
plea of undue influence must, to serve that dual purpose, be precise and all necessary
particulars in support of the plea must be embodied in the pleading: if the particulars stated in
the pleading are not sufficient and specific the Court should, before proceeding with the trial
of the suit, insist upon the particulars, which give adequate notice to the other side of the case
intended to be set up. The court felt that the claim of undue influence suffered from a lack of
particulars and thereby rejected the same.

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Other cases in which particulars may be necessary are those in which non-performance of
contract29, custom, easement, negligence, etc., are pleaded in the pleading.

1.6 Signing and Verifications of Pleadings: Rules 14 & 15


It must also be remembered that the rules regarding signing and verification of pleadings set
out in Rules 14 and 15 must also be followed: a failure to do so would merely be an
irregularity, and can be corrected at a later stage of the suit with the leave of the court and a
suit cannot be dismissed nor an order be passed against a party on the ground of defect or
irregularity in signing or verification of a plaint or written statement. However, such
irregularities should be avoided in order not to embarrass the party at a later stage in the
proceedings. 30

Rule 14A as added by the Amendment Act, 1976 requires a party to the suit to supply the
address for service of notice. It further provides for the stay of suit of the plaintiff or striking
off defence of the defendant in case the address supplied by him is found to be incomplete,
false or fictitious.

A defect in the matter of signing and verification of pleadings is merely an irregularity and
can be corrected at a larger stage of the suit with the leave of the court and a suit cannot be
dismissed nor an order be passed against a party on the ground of defect or irregularity in
signing or verification of plaint or written statement. Similarly, if the affidavit filed by the
party is defective, a court, instead of rejecting it, may give an opportunity to the party to file a
proper affidavit.31

1.7 Striking out Pleadings: Rule 16


The court is empowered to strike out any pleading if it is unnecessary, scandalous, frivolous
or vexatious, or tends to prejudice, embarrass or delay the fair trial of the suit or is otherwise
an abuse of the process of the court.

Normally, a court cannot direct parties as to how they should prepare their pleadings. But this
29
O. VI, R. 6.
30
Supra note 27, at 146.
31
Supra note 27, at 148.

19
is subject to the rider that the parties do not offend the rules of pleadings by making
averments or introducing pleas which are unnecessary, which may tend to prejudice,
embarrass or delay fair delay. In such cases, the court will interfere. This power, however,
must be exercised by the court sparingly and with great care and circumspection.32

1.8 Amendment of Pleadings: Rules 17 & 18


There are many instances when parties to the suit might find it necessary to amend their
pleadings before or during the course of trial due to a defect in compliance with any or all of
the provisions mentioned above. It is in such cases that the parties have to resort to the
provisions of amendment in these rules in order to correct those mistakes. The object of these
rules is that the court should try the merits of the case that come before it and should
consequently allow all amendments that may be necessary for determining the real question
in controversy between the parties provided it does not cause injustice or prejudice to the
other parties.33 Ultimately Courts exist for the purpose of doing justice to the parties and not
for punishing for minor mistakes, which are matters of detail and are empowered to grant
amendments in the larger interest of doing full and complete justice to the parties. Provisions
for amending pleadings are included in order to serve the ends of justice and not to defeat
them.

1.8.1 When Leave to Amend Might be Granted:


The rule as to amendment confers a very wide discretion upon the courts in the matter. The
observations of Batchelor, J., in Kisandas case34 serve to illustrate the general rules as to
granting of leave to amend:

All amendments ought to be allowed which satisfy the two conditions (a) of not working
injustice to the other side, and (b) of being necessary for the purpose of determining the real
question in controversy between the parties.35
However, a party failing to amend within the time fixed shall not be permitted to amend after
the expiration of the time or if no time is fixed, then within fourteen days from the order. The
Court has however got discretion to extend the period allotted in extenuating circumstances.

32
Supra note 4, at 548.
33
Supra note 7, at 923.
34
Kisandas v. Vithoba, (1909) 33 Bom 644; Supra note 27, at 118.
35
Ibid.

20
If during the pendency of a suit for declaration and injunction, the defendant trespasses into
the property, the plaintiff can be permitted to amend the plaint by including the relief of
possession. In a suit for permanent injunction, the plaintiff filed an amendment petition
alleging dispossession of a portion of the property by the defendant pending the suit, wanting
to include a prayer for possession. In deciding that petition, the fact whether the plaintiff is
able to prove that the defendant has dispossessed him during the pendency of the suit or the
fact that whether the defendant will be able to prove his prior possession is not relevant.
During the pendency of a civil suit before the civil Judge, the pecuniary jurisdiction of the
Munsifs court was enhanced. The plaintiff filed an application for amendment enhancing the
valuation of the suit so that the suit could be kept in the file of the civil Judge. The
amendment was allowed, as there was no prejudice caused to the defendant. Where the
amendment does not constitute an addition of a new cause of action, or raise a new case, but
amounts to no more than addition to the facts already on the record, the amendment would be
allowed even after the statutory period of limitation. If the amended plaint would not be time
barred on the date of filing of the original plaint and the amendment would reflect the real
dispute between the parties, the amendment can be ordered. This provision is also applicable
to election petitions.36

It is well settled that pleadings should not be construed with strictness and the case shouldnt
always be decided on mere technicalities. Thus if negligence is proved then any amendment
to supply the particulars will be rejected as not being pertinent to the real issue at hand. 37

It is a well established principle that the courts objective is not to punish the parties for
mistakes made by them in the conduct of their cases but to decide their rights. If a party has
made a mistake which is not fraudulent and the correction of which would not cause injustice
to the other parties then the Court must correct it for it will help decide the rights of the
parties. Also, the discipline that the Courts demand is only to aid the decision of controversial
matters and it is in fact a right of the party to have this error corrected if it can be done
without injustice.

A recent case which exemplifies this principle is that of Sampath Kumar v. Ayyakannu &

36
Supra note 4, at 551.
37
Supra note 4, at 551.

21
Anr.38. In this case the question before the court was whether an amendment could change the
suit from one seeking permanent prohibitory injunction to one of declaration of title and
recovery of possession. The plaintiff-appellant filed a suit for issuance of permanent
prohibitory injunction alleging the plaintiff-appellant's possession over the suit property
which is an agricultural land. The defendant in his written statement denied pleaded that on
the date of the institution of the suit he was in possession of the suit property and therefore
the suit for injunction was liable to be dismissed. The suit was instituted in the year 1988. In
1999, before the trial commenced, the plaintiff sought an amendment under Order VI, Rule
17 stating that during the pendency of the suit the defendant had forcibly dispossessed the
plaintiff and the plaintiff now sought declaration of title and delivery of possession. The
respondent opposed this amendment claiming that it changed the cause of action and that he
had by adverse possession perfected of his title and by allowing the amendment, a valuable
right of his would be taken away.

The trial and High Court had both rejected this application. Both stated that the right course
of action would be to bring a new suit. The Supreme Court however disagreed with this and
stated that the proposed amendment changed the nature of relief sought and not the basic
structure of the suit. The Supreme Court felt that this was necessary to avoid multiplicity of
suits. Order VI Rule 17 of the CPC confers jurisdiction on the Court to allow either party to
alter or amend his pleadings at any stage of the proceedings and on such terms as may be just.
Such amendments as are directed towards putting-forth and seeking determination of the real
questions in controversy between the parties should be permitted. The court also emphasized
the fact that amendments in the pre trial stage were to be granted more liberally since the
other party has full opportunity of meeting the case and is not prejudicially affected by the
amendment. The amendment should not be rejected by calculating the period from the date of
institution of the suit alone.

It is imperative that Courts look at whether the amendment helps in deciding the real
controversy at hand and is not rejected on mere technicalities. The court seems more liberal
in allowing amendments in the pre trial procedure.

Generally when amendments are allowed the amendment is dated back to the date of the
institution of the suit. The court in this case stated that this need not always be the case and
38
Sampath Kumar v. Ayyakannu & Anr, AIR 2002 SC 3369.

22
the Court is competent to permit an amendment to direct that the amendment shall not relate
back to the date of the suit and to the extent permitted by it shall be deemed to have been
brought before the Court on the date on which the application seeking the amendment was
filed.

Therefore clearly courts are of the opinion that the amendment should be allowed as long as it
is required to decide the matters in issue and as long as it doesnt cause injustice to the other
party.

The rule confers a wide discretion to the court with respect to when amendment of pleadings
and depends largely on the circumstances of each case. However certain cases have laid down
certain conditions under which such leave to amend can be granted.

In general all amendments ought to be allowed if following two considerations are met with:
a) it is not unjust to the other side
b) it should be necessary to determine the real issue in controversy.39

1.8.2 When Leave to Amend would be refused:


Amendments to pleadings are generally refused when40:
(1) The amendment is not necessary for the purpose of determining the real question in
controversy between the parties.
(2) The amendment, which if allowed would take away from a party a legal right which has
accrued to him by lapse of time. In the absence of special circumstances, an amendment
having such an effect will not be allowed by the courts.
(3) The amendment would introduce a totally different, new and inconsistent case or its
effect would be to substitute one distinct cause of action for another, or change the
character of the suit. Therefore, in a suit for ejectment of tenant, an amendment to include
a prayer for a decree of right, title, interest and permanent injunction and partition could
not be allowed since it would have changed the very character of the suit.
(4) The application is not made in good faith. Want of bona fides may be inferred from the
circumstances of the case. For instance when there is no substantial ground for the case
proposed to be set up by the amendment, or the object is to defeat or delay the plaintiffs

39
Supra note 27, a 156.
40
Supra note 4, at 554.

23
claim, or merely to re-agitate the same question and lead further evidence, the amendment
was not granted as not being bona fide.
(5) There has been unconscionable delay and gross lachess. Therefore, in a case concerning
an agreement to sell, the plaintiff filed the suit only for injunction restraining the
defendant from alienating the property, he could not be allowed to ask for the relief of
specific performance by way of amending the plaint after the lapse of seven years.

It should, however, be pointed out here that rather than go through the tedious process of
applying for an amendment and risking a rejection of the same, it is far more expedient for
the counsels to the respective parties to make sure that all the matters and issues and
particulars are included in the original pleadings themselves, in order to avoid embarrassment
to their client at a later stage in the trial.41

41
Supra note 27, at 162.

24
Chapter 2: Plaint - Order VII

2.1 Particulars to be contained in a Plaint


The expression plaint has not been defined in the Code. However, it can be said to be as
statement if claim, a document, by presentation of which the suit is instituted. Its object is to
state the grounds upon which the assistance of the court is sought by the plaintiff. It is a
pleading of the plaintiff.

Keeping this in mind, the following particulars are mandatorily required to be contained in
the plaint:
(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 a person of unsound mind, a statement to
that effect;
(e) The facts constituting the cause of action and when it arose;
(f) The fact showing that the court has jurisdiction;
(g) The relief which the plaintiff claims;
(h) Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount
so allowed or relinquished; and
(i) A statement of the value of the subject-matter and of the suit for the purposes of
jurisdiction and of the court fees, so far as the court admits.

It is necessary that all the requirements in this rule are strictly followed: failure to do so may
cause in embarrassment to the plaintiff at a later stage in the proceedings. For instance, a
failure to include the relief would result in refusal by the court to grant such a relief at a later
stage, and that gate would be closed to the plaintiff. These rules are incorporated to further
the principle that parties in a matter should have prior knowledge of all the constituents of
each others case so that they are able to reply to the same. Failure to provide some or all of
these details, or making mistakes in the same could have severe results, as are illustrated
below.42
42
Supra note 4, at 560.

25
Let us consider some aspects in detail:

(i) Parties to suit there must be two parties in every suit, the plaintiff and the defendant.
There may, however, be more than one plaintiff or defendants.43

(ii) Cause of action - Every suit pre-supposes the existence of a cause against the defendant
because if there is no cause of action, the plaint will have to be rejected. 44 Even though the
expression cause of action has not been defined in the C.P.C, it ma be described as a
bundle of essential facts, which it is necessary for the plaintiff to prove before he can
succeed. Thus, cause of action means every fact, which it is necessary to establish to support
a right or obtain a judgment.

The object underlying O. VII, R. 11(e) which requires that the plaint shall contain the
particulars about the find constituting the cause of action and when it arose, is to enable the
court to find out whether the plaint discloses the cause of action because the plaint is liable to
be rejected under O. VII, R. 11 CPC if it does not disclose the cause of action. The purpose
behind the requirement that the plaint should indicate when the cause of action arose is to
help the court in ascertaining whether the suit is not barred by limitation. Any error on the
part of the plaintiff in indicating the date the date on which the cause of action arose would be
to little consequence if the cause of action had arisen on the date on which the suit was filed
and the suit was within limitation from the said date. The error in mentioning the date on
which the cause of action had arisen in the plaint in such a case would not disentitle the
plaintiff from seeking relief from the court in the suit.45

One of the leading Indian cases commenting on the significance of the cause of action is
Kuldeep Singh v. Ganpat Lal.46

This was an appeal arising out of a suit for eviction filed by the respondent against the
defendant-appellant. As per the relevant act, a tenant can be evicted from the premises if he
has neither paid nor tendered the amount of rent due from him for six months. The tenant is

43
Supra note 27, at 170.
44
O. VII, R. 6(a).
45
Supra note 27, at 170.
46
Kuldeep Singh v. Ganpat Lal, (1996) 1 SCC 243.

26
protected from eviction if he deposits on court or pays to the landlord an amount determined
by the court; but it cannot be availed within 6 months of the same benefit. The submission of
the appellant is that he did deposit the requisite amount within the fixed date; and that in view
of clause (e) of Rule 1 of Order VII of the Code of Civil Procedure, it was incumbent upon
the respondents to set out in the plaint the facts constituting the cause of action and when it
arose and as per the said requirements, in para 6 of the plaint, have indicated that the cause of
action arose on 1-11-1982. Shri Sachar has submitted that the said statement in para 6 of the
plaint is not correct.

The Court said that the object underlying Order VII Rule 1(e) which requires that the plaint
shall contain the particulars about the find constituting the cause of action and when it arose,
is to enable the court to find out whether the plaint discloses the cause of action because the
plaint is liable to be rejected under Order VII Rule 11 CPC if it does not disclose the cause of
action. The purpose behind the requirement that the plaint should indicate when the cause of
action arose is to help the court in ascertaining whether the suit is not barred by limitation.
Any error on the part of the plaintiff in indicating the date the date on which the cause of
action arose would be of little consequence if the cause of action had arisen on the date on
which the suit was filed and the suit was within limitation from the said date.

Another case is Venkatesh Iyer v. Bombay Hospital Trust47; where the plaintiff had alleged
negligence of the doctor who treated him; and impleaded the Hospital trust and the super-
intendent as co-defendants; in the absence of any averment in the plaint showing nexus
between the doctor and the co-defendants. Also, the prayer clause was vague as to against
which of the defendants the relief was being claimed and this cannot be maintained against
the co-defendants. The Court held that not joining the Trustees of the Bombay Hospital Trust
and also Tata Memorial Hospital was a serious lacuna and the suit certainly is bad for non-
joinder of necessary parties.

(iii) Jurisdiction of Court The plaint must state all the facts showing how the court has
pecuniary and territorial jurisdiction over the subject-matter of the suit.

(iv) Limitation: Rule 6 - Rule 6 provides that where the suit is barred by limitation, it is
necessary for the plaintiff to show the ground of exemption in the plaint. But the proviso
47
Venkatesh Iyer v. Bombay Hospital Trust, AIR 1998 Bom. 373.

27
added by the Amendment Act 1976 empowers the court to permit the plaintiff to rely on a
new ground for exemption if it is not inconsistent with the grounds mentioned in the plaint.

(vii) Relief: Rules 7 & 8 - Every plaint must state specifically the relief claimed by the
plaintiff either simply or in the alternative. Where the relief is founded on separate and
distinct grounds, they should be so stated. Where the plaintiff is entitled to more than one
relief in respect of the same cause of action, it is open to him to claim all or any of such
reliefs. But if he omits, except with the leave of the court, to sue for any particular relief, he
will not afterwards be allowed to sure for the relief so committed.

The general rule no doubt is that the relief should be founded on pleadings made by the
parties. But where the substantial matters relating to the title of both parties to the suit are
touched, though indirectly or even obscurely in the issue, and evidence has been led about
them, then the argument that a particular matter was not expressly taken in the pleadings
would be purely formal and technical and cannot succeed in every case.

Rule 7 specifically states that it is not necessary to ask for general or other relief. The court or
tribunal can mould the ancillary relief having regard to the germane and relevant
circumstances. However, the discretion must be exercised by the court with circumspection in
just, reasonable and non-arbitrary manner; as was held in Hindalco Industries Ltd. v. Union
of India.48

In this case, the appellant company manufacturer were imposed on an inflated rate of charges
for carrier through the railway routes. They sought relief from the date of the complaint. The
tribunal only allowed for the relief from the date of the judgment. The Bombay HC said that
it was seen that the appellant sought for declaratory relief that the rates being charged are
"wholly unjust and unreasonable" and for a direction to the railway to charge "reasonable
rates" It is to be remembered that the relief otherwise cognizable by civil court of competent
jurisdiction under Section 9 of the CPC has been statutorily conferred on the Railway Rates
Tribunal with powers of a civil court to decide the claims under the Act Order VII Rule 7
CPC provides that every plaint shall state specifically the relief which the plaintiff claims
either simply or in the alternative, and it shall not be necessary to ask for general or other
relief which may always be given as the court may "think just" to the same extent as if it had
48
Hindalco Industries Ltd. v. Union of India, (1994) 2 SCC 594.

28
been asked for, and the same rule shall apply to any relief claimed by the defendant in his
written statement. Order II Rule 2 enjoins to claim the relief in respect of a cause of action
and under clause (3) of Order II Rule 2, if he omits to seek the relief, except with the leave of
the court, he shall be precluded thereafter for any relief so omitted.

In this regard, the court said that


It is settled law that it is no longer necessary to specifically ask for general or other
relief apart from the specific relief asked for. Such a relief may always be given to the
same extent as if it has been asked for provided that it is not inconsistent with that
specific claim which the case raised by the pleadings. The court must have regard for
all the relief and took at the substance of the matter and not its forms. It is equally
settled law that grant of declaring relief is always one of discretion and the court is not
bound to grant the relief merely because it is lawful to do so. Based on the facts and
circumstances the court may on sound and reasonable judicial principles grant such
declaration as the facts and circumstances may so warrant.

(vii) Admission of Plaint: Rule 9 - Rule 9 lays down the procedure when the plaint is
admitted by the court. It provides doe filing of copies of the plaint by the plaintiff and also
requires him to pay requisite fees for the service of summons on the defendants within seven
days.

2.2 Return of Plaint: Rule 10


Order 7 Rule 10 reads as follows:

Return of plaint.--(1) [Subject to the provisions of rule 10A, the plaint shall] at any stage of
the suit be returned to be presented to the Court in which the suit should have been instituted.
[Explanation.--For the removal of doubts, it is hereby declared that a Court of appeal or
revision may direct, after setting aside the decree passed in a suit, the return of the plaint
under this sub-rule.]

(2) Procedure on returning plaint.--On returning a plaint, the Judge shall endorse thereon
the date of its presentation and return, the name of the party presenting it, and a brief
statement of the reasons for returning it.

29
Where at any stage of the suit, the court finds that it has no jurisdiction, either territorial or
pecuniary or with regard with regard to the subject-matter of the suit, it will return the plaint
to be presented to the proper court in which it should have been filed. Order VII, Rule 10
states that the plaint would be returned in order to be presented to the court in which the suit
should have been instituted, subject to the provisions of rule 10-A. Rules 10-A and 10-B lay
down the procedure in such cases, and the power of appellate courts to transfer the suit to the
proper courts, respectively.49

Where at any stage of the suit the court finds that it has no jurisdiction either territorial 50,
pecuniary51 or with regard to subject matter52, it should return the plaint to be presented in the
proper court in which the suit ought to have been filed. 53 It is relevant now to look at the
decision in the case of R.S.D.V. Finance Company Private Limited v. Shree Vallabh Glass
Works Limited54.

The facts of the case are as follows. The appellant R.S.D.V. Finance Company Private
Limited (hereinafter referred to as 'the plaintiff) filed a summary suit against the respondent
Shree Vallabh Glass Works Limited (hereinafter referred to as 'the defendant) in the ordinary
original civil jurisdiction of the High Court. The case of the plaintiff was that it had deposited
a sum of Rupees 10,00,000/- with interest to be charged @ 19% per annum, with the
defendant. The said deposit was to be for a period of 90 days. The aforesaid amount of
Rupees 10,00,000/- was given to the defendant-company through Cheque No. 933251 dated
5th July, 1983 in the bank account of the defendant at Bombay. The defendant issued a
deposit receipt for the aforesaid amount dated- 11-7-1983. The aforesaid deposit receipt
contained an endorsement to the effect 'Subject to Anands jurisdiction'. The date of maturity
of the aforesaid amount was to expire on 3-10-1983. According to the plaintiff the defendant
failed to pay the amount of Rupees 10,00,000/- and requested the plaintiff to continue the
said deposit till the end of November, 1983 and for that purpose, handed over to the plaintiff

49
Supra note 7, at 948.
50
Failure to return plaint for lack of territorial jurisdiction will not result in the decree of the court in that case
being void.
51
Failure to return plaint for lack of pecuniary jurisdiction will not result in the decree of the court in that case
being void.
52
Failure to return the plaint when a court does not have subject matter jurisdiction will result in the decree
passed by that court in that suit being void and a nullity.
53
Supra note 27, at 164.
54
AIR 1993 SC 2094.

30
5 post dated cheques of Rs. 2,00,000/- each drawn on a Bombay bank. The defendant had
also issued a cheque dated 30th November, 1983 for a sum of Rs. 22,288.32 by way of
interest on the said amount of Rs. 10,00,000/-. This cheque was also drawn in favour of the
plaintiff payable in Bombay. The plaintiff submitted the aforesaid 5 cheques for payment but
the same were dishonored for the reason "insufficient funds". The plaintiff in these
circumstances filed a summary suit against the defendant for Rs. 10,00,000/- as principal and
interest at 19% per annum with 90 days rests.

A single judge of the High Court ruled in favor of the plaintiff, causing the defendant to
appeal before a Division Bench of the High Court which by its order dated 24th October,
1991 held that in the circumstances of the case, this Court had no jurisdiction to entertain and
try the suit. A prayer made on behalf of the plaintiff seeking to amend the plaint was also
rejected. The Division Bench allowed the appeal and dismissed the suit.

Subsequently the case was brought before the Supreme Court on appeal by the plaintiff. The
Supreme Court held that the entire reading of the plaint clearly showed that the suit was
based not only on the basis of deposit receipts of rupees 10 lakhs but also on the basis of five
post-dated cheques. Even if there was any doubt in the mind of Division Bench the counsel
for the plaintiff had made a request for allowing him to amend the plaint which was refused
by the Division Bench. The Division Bench was totally wrong in passing or order of
dismissal of the suit itself when it had arrived to the conclusion that Bombay Court had no
jurisdiction to try the suit. The only course to be adopted in such a situation was to return the
plaint for presentation to the proper court and not to dismiss the suit.

Thus if a court finds at any stage during the suit that it does not have jurisdiction, it is bound
to return the plaint for presentation in the proper forum and cannot simply dismiss the suit. In
a case of inaccurate valuation if it is found on proper valuation that the suit is beyond the
pecuniary jurisdiction of the court, the plaint is to be returned and not to be rejected.55

O 7, r 10 is silent on whether when a plaint upon being returned is filed in the proper court it
should be treated as a continuation of the old suit or as a new one. The above was decided
upon by the Supreme Court in the case of Amar Chand v. Union of India56. The facts of the

55
Supra note 7, at 993.
56
AIR 1973 SC 313.

31
case are as follows. . The plaintiff in this case was an advocate practicing at the Ajmer bar.
On the night between December 31, 1957 and January 1, 1958, the plaintiff was traveling by
passenger train from Ambala Cantt. to Delhi. While the train was at Mohri Railway Station,
the Janatha Express train coming from Delhi collided with it and as a result the plaintiff
sustained serious injuries on his head and in the spine. The plaintiff filed the suit claiming
damages under several heads. The Trial Court found that the claim for damages was well
founded to the extent of Rs. 33,503.00, but dismissed the suit on the ground that it was barred
by limitation. The High Court, on appeal by the plaintiff, confirmed the finding of the Trial
Court that the suit was barred by limitation and dismissed the appeal.

The main question, in the appeal, was whether the suit was filed within the period of
limitation. In this regard some more facts need to be looked at. There is no dispute that the
Article applicable to the suit is Article 22 of the Indian Limitation Act, 1908, hereinafter
called the 'Act' which provided a period of one year for a suit for compensation for injury to
the person from the date when the injury was committed. The injury here was committed on
January 1, 1958. But the plaintiff had to issue a notice under Section 80 of the Civil
Procedure Code before filing the suit. The plaintiff issued the notice and it was served on the
General Manager of the Railway in question on December 29, 1958. The Suit was filed in the
Court of the Senior Subordinate Judge of Karnal, hereinafter called the 'Karnal Court', on
March 2, 1959, as March 1, 1959, was a day on which the Court was not open. For
ministerial purposes, the suit was subsequently transferred to the Court of the Subordinate
Judge, Panipat, hereinafter referred to as the 'Panipat Court', which by its order, dated
October 28, 1959, returned the plaint for presentation to the proper court. That was on the
basis of its finding that Mohri Railway Station, where the injury was committed, was not
situated within territorial jurisdiction of the Court. The plaint was thereafter presented in the
Court of the Senior Subordinate Judge, Ambala, hereinafter referred to as the 'Trial Court', on
October 29, 1959, together with an application under Section 14 of the Act.

The counsel for the appellant argued that the suit instituted in the trial Court by the
presentation of plaint after it was returned for presentation to the proper court was a
continuation of the suit filed in the Karnal Court and, therefore the suit filed in the Karnal
Court must be deemed to have been filed in the Trial Court.

The Court however, held that when the plaint is returned for presentation to the proper Court

32
and is presented in that Court, the suit can be deemed to be instituted in the proper Court only
when the plaint was presented in that Court. Thus the Court held that the on return of plaint
when the plaint is filed in the proper forum it will not be regarded as a continuation of the old
suit and hence the suit instituted in the Trial Court upon the return of the plaint by the Panipat
Court could not be treated as a continuation of the suit filed in the Karnal Court.

2.3. Rejection of Plaint: Rule 11


O. VII, R. 11 of the CPC reads as follows:
Rejection of plaint.--The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court
to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court, fails to do so ;
(d) where the suit appears from the statement in the plaint to be barred by any law:
[(e) where it is not filed in duplicate;]
[(f) where the plaintiff fails to comply sub-rule (2) of Rule 9;]

[Provided that the lime fixed by the Court for the correction of the valuation or supplying of
the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded,
is satisfied that the plaintiff was prevented by any cause of an exceptional nature for
correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the
time fixed by the Court and that refusal to extend such time would cause grave injustice to
the plaintiff.]

Rejection of plaint is different from dismissal of suit. In the latter a decree is passed while in
the former is only a deemed decree as per Section 2(2) of the CPC. Dismissal for non-
payment of court-fee amounts to rejection of plaint and not really a dismissal of the suit.
Rejection of plaint does not preclude the filing of a fresh suit involving the same parties and
the same cause of action (i.e. it is not hit by res judicata).57

57
Supra note 7, at 1004.

33
To properly understand at what stage the court can use its power under O. VII, R. 11 the case
of Saleem Bhai v. State of Maharashtra58 needs to be looked at. The facts of the case are as
follows. The appellant filed an application under Order VII Rule 11 of the Code of Civil
Procedure, 1908 in the suits praying the court to dismiss the suits on the ground stated
therein. It was stated that the plaint is liable to be rejected under Clauses (a) and (d) of Rule
11 of Order VII C.P.C. The respondents also filed the application under Order VIII Rule 10
C.P.C. to pronounce judgment in the suits as the appellant did not file his written statement.
There was also aV application by the appellant under Section 151 C.P.C. praying the court to
decide first the application under Order VII Rule 11 C.P.C. By order dated 8th December,
2001, the Trial Judge dismissed the application under Order VIII Rule 10 as well as the
application filed under Section 151 C.P.C. Insofar as the application under Order VII Rule 11
C.P.C. was concerned, the Judge directed the appellant to file his written statement. The
appellant filed revision petitions before the High Court of Madhya Pradesh [Indore Bench].
On May 7, 2002, the High Court, while confirming the order of the Trial Judge reiterated the
direction given by the Trial Judge that the appellant should file his written statement and
observed that the trial court shall frame issues of law and facts arising out of pleadings and
that the trial court should record its finding on the preliminary issue in accordance with law
before proceeding to try the suit on facts. Aggrieved by this the petitioners approached the
Supreme Court.

The Apex Court held that the trial court can exercise the power under Order VII Rule 11
C.P.C. at any stage of the suit - before registering the plaint or after issuing summons to the
defendant at any time before the conclusion of the trial. For the purposes of deciding an
application under Clauses (a) and (d) of Rule 11 of Order VII C.P.C., the averments in the
plaint are germane; the pleas taken by the defendant in the written statement would be wholly
irrelevant at that stage, therefore, a direction to file the written statement without deciding the
application under Order VII Rule 11 C.P.C. cannot but be procedural irregularity touching the
exercise of jurisdiction by the trial court. The order, therefore, suffers from non-exercising of
the jurisdiction vested in the court as well as procedural irregularity.

O 7 Rule 11 does not place any restriction or limitation on the exercise of power of the court.
It does not either expressly or by necessary implication provide that the power should be
exercised at any particular stage only. In the absence of any statutory restriction, it is open to
58
AIR 2003 SC 759.

34
the court to use this power at any stage.59

The case of Samar Singh v. Kedar Nath60 dealt with whether the court could use its powers
under O. 7, R. 11 even after issues had been framed. This case also dealt with whether O. 7,
R. 11 of the CPC would be applicable to election petitions. The facts of the case are as
follows. During the General Elections held in the year 1984, the appellant filed his
nomination paper for contesting election to the Lok Sabha from 79-Hapur Parliamentary
Constituency. The appellant's nomination paper was accepted and he was allotted symbol of
"Lion". The appellant, Kedar Nath (the respondent), and 17 other candidates contested the
election. The appellant could poll only 617 votes while Kedar Nath polled 2,55,828 votes and
he was declared elected. The appellant filed election petition challenging the respondent's
election on a number of grounds. The respondent appeared before the High Court, filed
written statement and contested the election petition. On December 10, 1985 issues were
framed, thereafter the respondent made an application for rejecting the election petition under
Order 7 Rule 11 CPC on the ground that it disclosed no cause of action. A Single Judge of the
High Court after hearing the parties at length rejected the election petition on the finding that
the election petition did not disclose any cause of action. The appellant approached the
Supreme Court challenging the correctness of the High Court order. The appellant argued that
the High Court had no jurisdiction to entertain any application under Order 7 Rule 11 of CPC
after the settlement of issues.

The Supreme Court held that the provisions of the Civil Procedure Code as applicable to trial
of suits have been made applicable under Section 92 to the trial of election petition as nearly
as possible. The provisions of the CPC do not apply in their entirety to the trial of the election
petition but the provisions of Order 7 Rule 11 apply to an election petition and the High Court
has jurisdiction to reject a plaint which does not disclose any cause of action. It would be in
the interest of the parties to the petition and to the constituency and in public interest to
dispose of preliminary objection and to reject an election petition or a plaint if it does not
disclose any cause of action. If a plaint or an election petition does not disclose any cause of
action, it does not stand to reason as to why the defendant or the respondent should incur
costs and waste public time in producing evidence when the proceedings can be disposed of
on the preliminary objection. Thus the powers of the court under O. 7, R. 11 may be used

59
Supra note 7, at 1009.
60
AIR 1987 SC 1926.

35
even after the issues have been framed.

2.3.1 Non-Disclosure of Cause of Action:


If the plaint filed by the plaintiff does not disclose any cause of action, he court would reject
it. However, in order to reject the plaint on this ground, the court must look at the plaint and
at nothing else.
The Supreme Court has observed that if on a meaningful reading of the plaint, it is found to
be maliciously vexatious, meritless in the sense of not disclosing any right to sue the plaint is
liable to be rejected. It is to be rejected in its entirety or not at all.61

Therefore, in a suit for breach of contract filed against the Chief Minister of Orissa when on
the face of he plaint there was no contract between the plaintiff and the Chief Minister, the
plaint was liable to be rejected as it did not disclose a cause of action against the Chief
Minister. The power to reject a plaint on this count is exercised only if the court comes to the
conclusion that even if all the allegations set out in the plaint are proved, the plaintiff would
not be entitled to any relief. In that case, the court would reject the plaint without issuing
summons to the defendants. The reading of the plaint should be meaningful and not formal.62

2.3.2 Where Relief Claimed is undervalued:


If the relief claimed by the plaintiff is undervalued, and the plaintiff fails to correct the same
within the time stipulated by the court for doing the same, the plaint is liable to be rejected on
this count. In considering the question whether the suit is properly valued or not, the court
must confine its attention to the plaint only and should not look at the other circumstances
which may subsequently influence the judgement of the court as to the true value of the relief
prayed for. The valuation is done for the purpose of payment of court-fees.63

2.3.3 Where Plaint is insufficiently stamped:


The plaint would be rejected in cases where the plaint is written upon a paper that is
insufficiently stamped or the requisite court fees are not paid within the fixed time, even
though the valuation is correct. However, if the requisite court fees is paid within the time
extended by the court, the suit or appeal must be treated as instituted from the date of
presentation of plaint of presentation for the purpose of limitation as well as of payment of

61
Supra note 4, at 604.
62
Supra note 6, at 613.
63
Supra note 4, at 614.

36
court fee. If the plaintiff cannot pay the court fees, he may apply to continue the suit as an
indigent person.64

2.3.4 Where Suit appears to be barred by law:


The court would reject the plaint where the suit appears from the statements in the plaint to
be barred by any law. Therefore, where in a suit against the government, the plaint did not
state that the notice as required by Section 80 of C.P.C had been given; the plaint would be
rejected under this clause. But where waiver of such notice is pleaded, the court could not
reject the plaint without giving the plaintiff an opportunity to establish that fact. Similarly, if
the plaint itself shows that the claim is barred by limitation, the plaint can be rejected. If such
a question is connected with the merits of the case, the matter requires to be decided along
with other issues.65

The judge would pass an order to that effect when the plaint is rejected and record reasons for
doing so. However, a rejection of the plaint does not preclude the plaintiff from presenting a
fresh plaint in respect of the same cause of action. An order for rejecting a plaint is a deemed
decree, under Section 2(2) of the CPC.

2.4 Production of Documents on Which the Plaintiff relies: Rules 14


& 15
Order VII, Rule 14 states:
(1) Where the plaintiff sues upon a document in his possession or power, he shall produce it
in court when the plaint is presented, and shall at the same time deliver the document or a
copy thereof to be filed with the plaint.
(2) Where he relies on any other documents (whether in his possession or power or not) as
evidence in support of his claim, he shall enter such documents in a list to be added or
annexed to the plaint.

Rule 15 states that where any document is not in the possession or power of the plaintiff he
shall, if possible, state in whose possession or power it is.

64
Supra note 4, at 615.
65
Supra note 4, at 615

37
2.4.1 Effect of Non-Production:
A document which ought to be produced in court by the plaintiff when the plaint is presented,
or to be entered in the list to be added or annexed to the plaint, and which is not produced or
entered accordingly shall not, without the leave of the court, be received in evidence on his
part at the hearing of the suit. However, this rule does not apply to documents produced for
cross-examination of the defendants witnesses, or in answer to any case set up by the
defendant or handed to a witness merely to refresh his memory.66

No such leave, however, is necessary in the cases where the plaintiff seeks to produce
documents in answer to set-off by the defendant, or when the document is sought to be filed
and produced for cross-examination of the witness of the defendant.67

66
O. VII, R. 18.
67
O. VII, R. 10(2).

38
Chapter 3: Written Statements - Order VIII

3.1 Specific Rules: Rules 1 to 5, 7 to 10


A written statement is the pleading of the defendant wherein he deals with every material fact
alleged by he plaintiff in his plain and also states any new facts in his favour or takes legal
objections against the claims of the plaintiff. The defendant must at, or before, the first
hearing or within such time as the court may permit present a written statement of his
defence.68

3.1.1 Rules of defence:


Apart from the general rules of defence, Rules 1 to 5 and 7 to 10 of Order VIII, C. P. C. deal
with special points regarding filing of a written statement:

(i) The defendant, like the plaintiff, is bound to produce all the documents in support of his
defence, or claim for set-off or counter-claim which are in his possession. 69 The provisions
regarding the production of the same correspond with those in Order VII, rules 14, 15 and 18,
and as such, it is unnecessary to reproduce the same here. If the defendant fails to produce
them, they will not be received in evidence except with the leave of the court.70

(ii) It must raise all matters which show the suit not to be maintainable or that the transaction
is void or voidable in point of law and all such grounds of defence as, if not raised, would be
likely to take the opposite party by surprise, or would raise issues of facts not arising out of
the plaint, such as fraud, limitation, release, payment, performance or facts showing
illegality.71

(iii) General or evasive denial of the allegations in the plaint is not sufficient, but the
defendant must answer the point of substance. He must deal specifically with each allegation
of fact of which he does not admit the truth except damages. If an allegation is made with
diverse circumstances, it shall not be sufficient to deny it along with those circumstances. 72
For instance, the defendant is not entitled to plead the denial of adoption of the plaintiff
68
O. VIII, R. 1(1).
69
O. VIII, R. 1(2)
70
O. VIII, R. 8A(1), (2).
71
O. VIII, R. 2.
72
O. VIII, Rr. 3, 4.

39
merely by averring that the plaintiff could not be adopted according to the custom. The
defendant can, however, urge the plea of limitation at the trial without making any such plea
in the written statement.

(iv) Every allegation of fact in the plaint, if not denied specifically or by necessary
implication, or stated to be not admitted in the pleading shall be taken to be admitted except
as against a person under disability: provided the court may in its discretion require any fact
so admitted to be proved otherwise than by admission but in exercising discretion the court
shall have due regard to the fact whether the defendant could have or has engaged a pleader. 73
This rule is known as admission by non-traverse or constructive admission. Therefore, when
the plaintiff in the plaint had pleaded that in a contract of sale the time was not of the essence
of the contract and the same had not been denied specifically in the written statement, it was
held that the defendant virtually admitted that the time was not of the essence of the contract.
Similarly, when the plaintiff sued the railway that the goods were damaged during transit, but
the Railways did not plead in the written statement that the goods were booked in broken
condition, then the court could not dismiss the plaintiffs suit on the ground of failure of the
plaintiff to prove that the goods were booked in good condition.74

(vii) Where the defendant relies upon several distinct grounds of defence or set-off or
counter-claim founded upon separate and distinct facts, they shall be stated, as far as may be,
separately and distinctly.75

A new ground of defence arising after the suit or after a claim of set-off or counter-claim may
be raised by the defendant or plaintiff, as the case may be, in his written statement. 76 No
pleading subsequent to the written statement other than defence to a set-off or counter-claim
shall be presented except by leave of court, but the court may at any time require a written
statement or additional written statement from any of the parties.77

Any new ground of defense which has arisen after the institution of the suit or presentation of
a written statement claiming a set-off or counter-claim may be raised by the plaintiff or

73
O. VIII, Rr. 5(1) and 3(1).
74
Supra note 7, at 1019.
75
O. VIII, R.7.
76
O. VIII, R.8.
77
O. VIII, R. 9.

40
defendant, as the case may be, in his written statement. The court is empowered to take notice
of such subsequent events.78

No pleading after the written statement of the defendant other than by way of defense to be a
set off or counter claim can be filed. The court may, however, allow any party to file his
pleading upon such terms as it thinks fit.79

If the defendant fails to present his written statement within the time permitted of fixed by the
Court, the court will pronounce the judgment against him or pass such order in relation to the
suit as it thinks fit and a decree will be drawn up according to the said judgment.80

78
O. 8, R. 8.
79
O. 8, R. 9.
80
O. 8, R. 10.

41
Conclusion

It is thus clear that the pleadings are integral in providing a smooth, facilitative basis for the
trouble-free progress of the trial proceedings. The rules analysed above clearly show that
in order to best make a trial proceed without any major problems or disturbances, the
parties to the suit must be well aware of each others cases, and should therefore be able
to counter them easily and without any trouble.

The rules regarding pleadings in general are intended to achieve the objective of providing all
the parties involved in a suit with a clear overview of the matters and issues involved.
These rules also narrow down the issues to the material and relevant ones to the suit,
thereby, saving the precious time and energy of the courts in a legal system such as ours
which is so overburdened with the prolific amount of litigation in the country. These
provisions also ensure that the court is able to determine the real questions of
controversy between the party instead of getting lost in a multitude of irrelevant details.
To save time of the court as well as the parties, the defendant is also required to make
specific denial as to each of the allegations by the plaintiff; a vague denial will not do.

Apart from the above, the other rules which govern the pleadings include that the they should
be signed and verified by the parties, that a notice material to the case must be specifically
stated and that the legality of a contract should be specifically denied and not merely denying
the contract as a whole. Furthermore, the rules specifically applicable to the drafting of the
plaint include mentioning in specific details of the money sought to be claimed, the properties
in dispute, whether or not the suit is a representative suit, etc. Similarly, the rules specifically
applicable to the written statement are that new facts must be pleaded separately after
answering to the allegations of the plaint, etc.

Though the language of these provisions makes it mandatory for the parties to fulfill the
requirements stated therein, the courts have taken a liberal view of the technical requirements
in the sake of justice since a vast multitude of the population of India is still illiterate. Hence,
mere technical errors do not make a pleading invalid. Substance has been given priority over
simple technical errors which do not change the meaning of the pleading.

42
Bibliography
Books:
1. C. K. Thakker, Civil Procedure (3rd ed., Lucknow: Eastern Book Co., 1994).
2. M. P. Jain, Code of Civil Procedure (2004 ed., Delhi: Wadhwa Publishers, 2004).
3. M. R. Mallick, Gangulys Civil Court Practice and Procedure (12th ed., Calcutta:
Eastern Law House, 1997).
4. Nolan, J. R., and Nolan-Haley, J. M., Blacks Law Dictionary (2nd ed., St. Paul: West
Publishing Co., 1990).
5. Sudipto Sarkar & V. Manohar, Sarkar Code of Civil Procedure (10th ed, Nagpur:
Wadhwa and Company, 2005).

43