Affidavits and evidence on Affidavits

An affidavit is a sworn statement of facts by a person who knows that such facts and
circumstances have taken place. The person who makes such statement and signs it is known as a
deponent. It is duly attested/ affirmed by the Notary or Oath Commissioner. Such Notary/ Oath
Commissioners are appointed by the Court of Law.
Further, the law pertaining to affidavits is covered under Section 139 and Order XIX of Code of
Civil Procedure, 1908 along with Order XI of Supreme Court Rules. Order XIX of Code of Civil
Procedure, 1908 empowers the Court to order at any point of time, any particular fact or facts to
be proved by affidavit. But the Court shall not make such order, where it appears to the Court
that either party desires the production of a witness for cross-examination and that such witness
can be produced.
An affidavit must contain only such facts that are known to the deponent or such information that
he believes to be correct. Rule 3 of Order 19, CPC provides that affidavits shall be confined to
such facts as the deponent is able of his own knowledge to prove, except on interlocutory
applications, on which statements of his belief may be admitted, provided the grounds for the
same are state.
In Sudha Devi v. M.P. Narayanan, it was held that Affidavits are not included within the
purview of the definition of “evidence” as has been given in Section 3 of the Evidence Act, and
the same can be used as “evidence” only if, for sufficient reasons, the Court passes an order
under Order XIX of the Code of Civil Procedure, 1908. It is generally unsatisfactory to record a
finding involving grave consequences with respect to a person, on the basis of affidavits and
documents alone, without asking that person to submit to cross-examination.
Verification of affidavits should invariably be modelled on the lines of Order 19, Rule 3, of the
Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to
is not based on personal knowledge the sources of information should be clearly disclosed so that
the other side gets a fair chance to verify it and make an effective answer. Slipshod verifications
of affidavits might lead to their rejection
A false affidavit is one in which a person deliberately swears false and frivolous statements to be
true, correct and accurate in an affidavit and signs it, in order to deceive and mislead the Court.
This causes inordinate delay in proceedings and is a clear misuse of the judicial process. Filing
of false affidavit is an offence of perjury under the provisions of the Indian Penal Code. It is a
criminal offence under Section 191,193,195,199 of Indian Penal Code, 1860 to make false
affidavit in one’s pleadings or filing false affidavit or false document in evidence before court of
law. Further, criminal contempt of court proceedings can be initiated against the person filing
false affidavit.
 Res Judicata
Under the Roman law, “ex captio res judicata” means “one suit and one decision is enough for
any single dispute”. The doctrine has been accepted in all civilized legal system. In India, it is
governed under Section 11 of Civil Procedure Code, 1908 which provides that once a matter is
finally decided by a competent court, no party can be permitted to reopen it in a subsequent
litigation. In Satyadhyan Ghosal v. Deorjin Debi, the court said that the doctrine of res judicta is
based on the need of giving a finality to judicial decisions. Further, in the absence of such a rule,
there will be no end to litigation and the parties would be put in constant trouble, harassment,
and expenses.
Object
The doctrine is based on three maxims:-
 No man should be vexed twice for the same cause.
 It is in the interest of the state that there should be an end to litigation.
 A judicial decision must be accepted as correct.
Conditions for application of Res Judicata (Section 11 of CPC,1908)
 There must be two suits – One former & other subsequent: Former suit means
previously decided suit. It doesn’t matter when the suit was instituted. What it matters is
when the decision came from the court. For example,

Suit Filled on Suit Decided    on Former suit

1/10/2012 Still pending No

1/01/2013 10/11/2017 Yes

 
 Matter directly and substantially in the subsequent suit: It means that matter must be
directly related to the suit. It must not be collateral or incidental to the issue. For
example, ‘A’ and her mother filed a suit against her father’s brother for claiming a share
in the property of her mother. The question of marriage expenses was not directly or
substantially in issue. The claim of partition was dismissed by the court. However, the
principle of res judicata doesn’t bar ‘A’ to file a subsequent suit for her marriage
expenses as the matter was not directly in issue in the former suit.
 There must be same parties: The parties to a suit are those whose name appears on the
record of the suit at the time of the decision. A party who withdraws or whose name is
stuck off is not considered as a party. Further, a minor not represented by the guardian for
the suit is not a party to the suit. Where any decision made by the court in favor of or
against any party then it not only binds the party but also their successors too. For an
instance, a suit filed by any person for recovery of possession and ownership title and the
 court decided in his favor, then his legal heirs also considered as the parties after his
death and res judicata will apply.
 There must be the same title: ‘Same title’ means ‘in same capacity’. It has been held in
the number of cases that ‘a verdict against a man suing in one capacity will not stop him
when he sues in another capacity’. For example, ‘A’ file suit against ‘B’ as the owner of
property and suit is dismissed by the court. Later on, he filed a suit to claim his right as
mortgagee will not bar him to institute a subsequent case. So where the suit is filed in a
different capacity then it is considered to be a valid suit and doesn’t bar by this doctrine.
 The decision must be made by the competent court: The Former decision must be given
by competent court having jurisdiction on the case. If the case is decided by the court has
no jurisdiction over the subject matter then res judicata will not apply. For an instance,
revenue courts exercising authority under the Act can be held to be a court of limited
jurisdiction and decision by it within its competence will operate as res judicata.
 Heard and finally decided: The matter directly & substantially in issue in subsequent
suit must have been heard and finally decided by the court in a former suit. “Heard and
finally decided” means that the court has exercised its judicial mind & after argument
and consideration came to decision on contested matter and decision is made on the
merits of the case. In following cases the matter is deemed to be finally decided on merits
even if the former suit is disposed of in the following manner:
1. By ex parte
2. By dismissal
3. By decree on an award
4. By oath tender under section 8 on Indian Oath Act,1873
5. By dismissal owing to plaintiff failed to produce evidence at the hearing.

Constructive Res Judicata

Rule of constructive res judicata is engrafted under Explanation IV of Section 11 of the Code. It
is artificial form of res judicata and provides that if a plea could have been taken by a party in a
proceeding between him and his opponent, he should not be permitted to take that plea against
the same party in a subsequent proceeding with reference to the same subject-matter. That
clearly is opposed to considerations of public policy on which the doctrine of res judicata is
based and would mean harassment and hardship to the opponent. Besides, if such a course is
allowed to be adopted, the doctrine of finality of judgments pronounced by the courts would also
be materially affected

In State of UP vs. Nawab Hussain, (AIR 1977 SC 1680) A, a sub-inspector of police was
dismissed from service by D.I.G. He challenged the order of dismissal by filing a writ petition in
the high court on the ground that he was not afforded a reasonable opportunity of being heard
before the passing of the order. The contention was, however, negated and the petition was
dismissed. He then filed a suit and raised an additional ground that science he was appointed by
the I.G.P., the D.I.G. had no power to dismiss him. The state contended that the suit was barred
by constructive res judicata. The trial court, appellate court and the high court held that suit was
not barred, but the Supreme Court held that the suit was barred by constructive res judicata as the
plea was within the knowledge of the plaintiff and could well have been taken in the earlier writ
petition.
Writ Petitions and Res Judicata
In M.S.M sharma v. Dr. Shree Krishna, AIR 1960 SC 1186, for the first time Supreme Court
held that the general principle of res judicata applies even to writ petition filed under Article 32
of the Constitution of India. Thus, once the petition filed under Article 32 is dismissed by the
court, subsequent petition is barred.
In the leading case of Daryao v. State of U.P., AIR 1961 SC 1457, the Supreme Court has
placed the doctrine of res Judicata on a higher footing. In that case, the petitioners has filed writ
petitions in the high court of Allahabad which were dismissed. Thereafter, they filed substantive
writ petitions in the Supreme Court for the same relief and on the same grounds. The Supreme
Court dismissed the petitions and held that the binding character of the judgments pronounced by
competent courts is an essential part of the rule of law. The rule of res judicata applies also to a
petition filed under Article 32 of Constitution of India.
Exceptions to Res Judicata
However, there are limited exceptions to Res Judicata that allow a party to attack the validity of
the original judgment, even outside of appeals. These exceptions - usually called collateral
attacks - are typically based on procedural or jurisdictional issues, based not on the wisdom of
the earlier court's decision but its authority or competence to issue it. A collateral attack is more
likely to be available (and to succeed) in judicial systems with multiple jurisdictions, such as
under federal governments, or when a domestic court is asked to enforce or recognise the
judgment of a foreign court.
In the case of Beliram and Brothers vs. Chaudari Mohammed Afzal it was held that where a
minor suit was not brought by the guardian of the minors bona fide but was brought in collusion
with the defendants and the suit was a fictitious suit, a decree obtained therein is one obtained by
fraud and collusion within the meaning of the Indian Evidence Act, 1872, s. 44 and does not
operate Res Judicata. The principle of Res Judicata in Code of Civil Procedure, 1908, s. 11 is
modified by the Indian Evidence Act, 1872, s. 44 and the principles will not apply if any of the
three grounds mentioned in s. 44 exists. General principles may not be applied in a way making
Code of Civil Procedure, 1908, s. 11 nugatory
Plaint
Pleading refers to plaint and written statement. In plaint, plaintiff should allege facts about his
cause of action. In fact, plaint consists of some contents, and it is mandatory that such contents
should be present in plaint. Order 7 Rule 1 of CPC lays down that a plaint must contain the
following particulars
 The name of the court in which the suit is brought;[2]
 The name, description and place of residence of the plaintiff;[3]
 The name, description and place of residence of the defendant;[4]
  Where the plaintiff or defendant is minor or a person of unsound mind, a statement to that
effect;[5]
 The facts constituting the cause of action and when it arose;[6]
 The facts showing that the court has jurisdiction;[7]
 A statement of the value of the subject matter of the suit for the purpose of jurisdiction
and court fees;[8]
 The reliefs claimed by the plaintiff, simply or in the alternative;[9]
 Where the plaintiff files a suit in the representative capacity, the facts showing that the
plaintiff has an actual existing interest in the subject-matter and that he has taken steps
that maybe necessary to enable him to file such a suit;[10]
 Where the plaintiff has allowed a set off or relinquished a portion of his claim, the
amount so allowed or relinquished;[11]
 Where the suit is for recovery of money, the precise amount claimed;[12]
 Where the suits is for accounts or mesne profits or for movables in the possession of the
defendant or for debts which cannot be determined, the approximate amount or value
thereof;[13]
 Where the subject-matter of the suit is immovable property a description of the property
sufficient to identify it, e.g. boundaries, survey numbers, etc.[14]
 The interest and liability of the defendants in the subject-matter of the suit;[15]
 Where the suit is time-barred, the ground upon which the exemption from the law of
limitation is claimed.[16]
[2] O. VII, R. 1 (a)
[3] O. VII, R. 1 (b)
[4] O. VII, R. 1 (c)
[5] O. VII, R. 1 (d)
[6] O. VII, R. 1 (e)
[7] O. VII, R. 1 (f)
[8] O. VII, R. 1 (i)
[9] O. VII, R. 1 (g), R. 7, R. 8
[10] O. VII, R. 4
[11] O. VII, R. 1 (h)
[12] O. VII, R. 2
[13] O. VII, R. 2
[14] O. VII, R. 3
[15] O. VII, R. 5
[16] O. VII, R. 6
Return of Plaint
Where at any stage of the suit, the court finds that it has no jurisdiction and the court in which
the plaint is filed is of an opinion that the suit should have been filed in another court. The scope
of Rule 10 is confined to jurisdictional defects. An improperly instituted suit has to be returned
to the plaintiff to be filed before the appropriate Court having jurisdiction.
The plaint shall be returned as soon as the fact of its being placed before the wrong forum comes
to the notice of the court. The term at “any stage” includes the appeal stage. However every
effort should be made to determine the jurisdiction of the court as soon as the plaint is filed.
Rule 10 (2)- The Judge returning the plaint should make endorsement on the plaint regarding:
 The date of presentation of the suit,
 The date of return of the suit,
 The name of the parties who presented the suit, and
 The reason of so returning in brief.
Rule 10-A: This rule says that if the Court formed an opinion that the plaint should be returned
and the defendant has already appeared, the decision to return shall be intimated to the plaintiff.
The plaintiff has a right to make an application to the Court specifying the new Court in which
he proposes to present the plaint after it is returned. He may also request by application that the
Court may fix a date for the  appearance of the parties in the said Court and that the notice of the
date so fixed may be given to him and to the  defendant. The Court then shall fix a date for
appearance of parties in the proposed Court and give notice.
Rule 10-B: This rule has been added to Rule 10 with a view to empowering the Court hearing an
appeal against an order of return of plaint to direct that, instead of the plaint being returned, the
suit may be transferred to the Court in which it should have been instituted. Further, the
provision for obviating the necessary for serving summonses on the defendants, where the return
of plaint was made after the appearance of the defendants in the suit, have also been included in
the rule.
In the case of R. S. D.V. Finance Company Pvt. Ltd., Vs. Shree Vallabh Glass works [AIR
1993 SC 2094] the Hon’ble Apex court has held that when the court has come to the conclusion
that it does not have jurisdiction to try a suit, the only course to be adopted in such circumstances
was to return the plaintiff for representation before the proper court and not to dismiss the suit
and not to dismiss the suit.
In ONGC Ltd. v Modern Construction and Company (2014)1 SCC 648. The law on the issue
can be summarised to the effect that if the court where the suit is instituted, is of the view that it
has no jurisdiction, the plaint is to be returned in view of the provisions of Order VII, Rule 10,
C.P.C. and the plaintiff can present it before the court having competent jurisdiction. In such a
factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case
before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation
Act, and may also seek adjustment of court fee paid in that court. However, after presentation
before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the
trial is to be conducted de novo even if it stood concluded before the court having no competence
to try the same.

Rejection of Plaint
The provision contained in Order VII Rule 11 are mandatory and the court has no discretion to
reject the plaint once contigencies specified in the provision occur. Before rejecting the plaint,
opportunity should be given to the plaintiff to remove the ground of objection wherever possible
to do so
Rule 11 says that the plaint will be rejected in the following cases- (a) Where it does not disclose
cause of action
If the plaint filed by the plaintiff does not disclose any cause of action, the Court will reject it,
but in order to reject the plaint on this ground, the Court must look at the plaint and at nothing
else. The power to reject a plaint on this ground should be exercised only if the Court comes to
the conclusion that even if all the allegation set out in the plaint are proved, the plaintiff would
not be entitled to any relief. In that case, the Court will reject the plaint without issuing summons
to the defendants.
(b) Where the relief claimed is under valued:
Where the relief Claimed by the plaintiff is under valued and the valuation is not corrected
within the time fixed or extended by the Court, the plaint will be rejected. Proviso to Rule 11
introduced by amending Act 104 of 1976 effective from 1st February, 1977 is suggestive of the
fact that enforcement of the rigor of these provisions to a limited extent as indicated in the
proviso, leaves it as a discretion of the court despite the fact that the  plaintiff might not have
undervalued the suit and fails to pay the requisite court fee within the time allowed by the court,
still the court would allow extension of time,
(c) Where it is insufficiently stamped: Every suit is instituted by filing of the plaint one of the
requirements for the proper institution of the suit is that the plaint must be properly stamped for
the purposes of the court fees under the court Fee Act, 1870. If the plaint is insufficient stamp,
the court reject the plaint under order 7 rule 11 of CPC and give a sufficient time to solve the
cause of failures.
Sometimes the relief claimed by the plaintiff is properly valued, but the plaint is written upon a
paper insufficiently stamped and the plaintiff fails to pay the requisite Court fees within the time
fixed or extended by the Court. In that case, the plaint will be rejected. However, if the requisite
Court fee 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 or memorandum of appeal for the purpose of
limitation as well as payment of Court fee (Sec. 149 C.P.C.).
(d) Where the Suit appears to be barred by any Law: Where the suit appears from the statements
in the plaint to be barred by any law, the Court will reject the plaint. For instance, wherein a suit
against the Government, the plaint does not state that the notice as required by Section 80 of
C.P.C. has been given the plaint will be rejected under this clause or where proper procedure of
institution of suit is not followed such as consent of Advocate General is not obtained under
Section 92. This rule authorizes the rejection of a plaint where the suit appears from the
statement in the plaint to be barred by any law . Thus , where a suit was filed for damages for
defamatory statements in the Parliament , the suit was held to be barred by Article 105(2) of the
Constitution .
(e) Where the plaint is not filed in duplicate.
f) where the plaintiff has not complied with the provisions of Rule – 9 where the plaintiff fails to
present the copies of plaint along with requisite fees for service of summons on the defendants
within seven days from the date of order of service of summons.
g) Other grounds The grounds that are provided under this rule for rejection of plaint are not
exhaustive. If any other relevant ground is made out the case can be rejected. Thus, if the plaint
is signed by person not having authority to do so and if fails to rectify the same within the time
granted by the court for curing the defect, the plaint can be rejected. Defect in POA is curable.
Rejection not warranted.
In Saleem Bhai Vs. State of Maharashtra, AIR 2003 SC 756, it has been held that the
application for rejection of plaintiff has to be decided based on averment in the plaint and the
pleas taken by the defendant are wholly irrelevant at that stage and directing the defendant to file
written statement without deciding an application under Order 7 Rule 11 is procedural
irregularity touching the exercise of jurisdiction in the court.
Pleadings
Pleadings are the backbone of legal profession. It is the foundation stone on which case of a
party stands. The case of a party must be set out in the pleadings. Moreover, the relief cannot be
claimed on the grounds which are not contained in the pleadings. The immaterial or vague or
ambiguous matter should be avoided and pleadings should be properly framed. In Devki
Nandan v. Murlidhar, it was held that a finding cannot be sustained which is based on no
pleading and no evidence.
Pleadings are those materials or essential facts which are necessary to be averred in order to put
forward a cause or to establish a defence in a judicial proceeding. It is the backbone of the suit
upon which the entire edifice of the suit rests. It includes allegations and counter allegations
made by one party and denied by the other. Etymologically, it means a formal statement to
propound the cause of action or set up a defence against the case of the plaintiff. 
Order VI of the Code of Civil Procedure, 1908 deals with pleadings in general. Rule 1 defines
pleading, 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 a Court to strike out unnecessary pleadings. Rules 17 and 18
contain provisions relating to amendment of pleadings.
As per Rule 1 of Order VI of the Code of Civil Procedure, 1908, pleading is defined as plaint or
written statement. It is important to know here the meaning of plaint and written statement.
Plaint is the statement of the plaintiff containing grievances in order to initiate an action in a
court of law. It helps the court to determine the real nature of the suit. Written statement is the
statement or defence of the defendant by which he either admits the claim of the plaintiff or
denies the allegations or averments made by the plaintiff in his plaint.
The object of pleadings are – (i) to bring the parties to definite issues; (ii) to prevent surprise and
miscarriage of justice; (iii) to avoid unnecessary expense and trouble; (iv) to save public time;
(v) to eradicate irrelevancy; and (vi) to assist the Court.

Rules of Pleadings
For the proper understanding of rules of pleadings it may be divided into two heads:-
(A) Fundamental or Basic Rules; and 
(B) Particular or other rules
(A) Fundamental or Basic Rules of Pleadings:- Sub-rule (1) of Rule 2 of Order VI of the
Code of Civil Procedure, 1908, lays down the fundamental principles of pleadings. It reads as
under:-
“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 defence, as the case may be, but not the
evidence by which they are to be proved.”
From the above provision it can be said that following are the fundamental or basic rules of
pleadings:-
(1) Pleadings should state facts and not law; (2) The facts stated in pleadings should be material
facts; (3) Pleadings should not state the evidence; and (4) The facts in pleadings should be stated
in a concise form.
(1) Pleadings should state facts and not law:- It is the first fundamental rule of pleadings. It
says that pleadings should state only facts and not law. In the case of Kedar Lal v. Hari Lal,(8)it
was held that it is the duty of the parties to state only the facts on which they rely upon their
claims. It is for the Court to apply the law to the facts pleaded. In the case of Gouri Dutt Ganesh
Lall Firm v. Madho Prasad,(9) it was held that the law of pleading may be tersely summarized
in four words; “Plead facts not law.”
In Ram Prasad v. State of M.P.,(10) it was held that a mixed question of law and fact, however,
should be specifically pleaded. Again in Union of India v. Sita Ram Jaiswal,(11) the Court held
that a point of law which is required to be substantiated by facts should be pleaded with
necessary facts.
(2) The facts stated in pleadings should be material facts:- It is the second fundamental rule of
pleadings. It says that pleadings should contain a statement of material facts and material facts
only. Here one most important question is arose i.e. what is the meaning of the term “material
facts”. This term has not been defined in the Code of Civil Procedure, 1908. But the Court
defined this term in many judicial pronouncements. Like in the case of Union of India v. Sita
Ram, the court said that “material facts” means all facts upon which the plaintiff’s cause of
action or the defendant’s defence depends, or in other words, all those facts which must be
proved in order to establish the plaintiff’s right to relief claimed in the plaint or the defendant’s
defence in the written statement. Again in the case of Udhav Singh v. Madhav Rao Scindia,
(13) the Supreme Court said that the term material fact means “All the primary facts which must
be proved at the trial by a party to establish the existence of a cause of action or his defence are
material facts.”
(3) Pleadings should not state the evidence:- It is third fundamental rule of pleadings. It says
that pleadings should contain a statement of material facts on which the party relies but not the
evidence by which those facts are to be proved. The facts are of two types:-
(a)Facta probanda- the facts required to be proved (material facts); and
(b)Facta probantia- the facts by means of which they are to be proved (particulars or evidence).
The pleadings should contain only facta probanda and not facta probantia. The material facts on
which the plaintiff relies for his claim or the defendant relies for his defence are called facta
probanda, and they must be stated in the plaint or in the written statement, as the case may be.
But the facts or evidence by means of which the material facts are to be proved are called facta
probantia and need not be stated in the pleadings.
(4) The facts in pleadings should be stated in a concise form:- It is the fourth and last
fundamental rule of pleadings. It says that the statements in pleadings should be stated in a
concise and in brief form. In Virendra Kashinath v. Vinayak N. Joshi,(15) The words “in a
concise form” are definitely suggestive of the fact that brevity should be adhered to while
drafting pleadings. Of course, brevity should not be at the cost of excluding necessary facts, but
it does not mean niggling in the pleadings. If care is taken in syntactic process, pleadings can be
saved from tautology.
(B) Particular or Other Rules of Pleadings:- Besides the fundamental or basic rules of pleadings,
there are other or particular rules of pleadings which are as follows:-
(1) Wherever misrepresentation, fraud, breach of trust, willful default or undue influence are
pleaded in the pleadings, particulars with dates and items should be stated.
(2) The performance of a condition precedent need not be pleaded since it is implied in the
pleadings. Non-performance of a condition precedent, however, must be specifically and
expressly pleaded.
(3) Generally departure from pleading is not permissible, and except by way of amendment, no
party can raise any ground of claim or contain any allegation of fact inconsistent with his
previous pleadings.
(4) A bare denial of a contract by the opposite party will be construed only as a denial of factum
of a contract and not the legality, validity or enforceability of such contract.
(5) Documents need not be set out at length in the pleadings unless the words therein are
material.
(6) Wherever malice, fraudulent intention, knowledge or other condition of the mind of a person
is material, it may be alleged in the pleading only as a fact without setting out the circumstances
from which it is to be inferred. Such circumstances really constitute evidence in proof of material
facts.
(7) Whenever giving of notice to any person is necessary or a condition precedent, pleadings
should only state regarding giving of such notice, without setting out the form or precise term of
such notice or the circumstances from which it is to be inferred, unless they are material.
(8) Implied contracts or relations between persons may be alleged as a fact, and the series of
letters, conversations and the circumstances from which they are to be inferred should be pleaded
generally.
(9) Facts which the law presumes in favour of a party or as to which the burden of proof lies
upon the other side need not be pleaded.
(10) Every pleading should be signed by the party or one of the parties or by his pleader.
(11) A party to the suit should supply his address. He should also supply address of the opposite
party.
(12) Every pleading should be verified on affidavit by the party or by one of the parties or by a
person acquainted with the facts of the case.
(13) A Court may order striking out a pleading if it is unnecessary, scandalous, frivolous,
vexatious or tends to prejudice, embarrass or delay fair trial of the suit.
(14) A Court may allow amendment of pleadings.
(15) Forms in Appendix A of the Code should be used wherever they are applicable. Where they
are not applicable, forms of like nature should be used.
(16) Every pleading should be divided into paragraphs, numbered consecutively. Each allegation
or averment should be stated in a separate paragraph. Dates, totals and numbers should be
written in figures as well as in words
Amendment of Pleadings
Amendment is the formal revision or addition or alteration or modification of the pleadings.
Provisions for the amendment of pleadings are intended for promoting the ends of justice and not
for defeating them. Rules 17 and 18 of Order VI of Code of Civil Procedure, 1908 deals with
provisions regarding amendment of pleadings and failure to amend after order respectively. Rule
17 of the Code of Civil Procedure, 1908 provides that, “The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in such manner and on such terms
as may be just, and all such amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties.
Proviso to the Rule 17 of Order VI of Code of Civil Procedure, 1908 as inserted by the Code of
Civil Procedure (Amendment) Act, 2002 restricts and curtails power of the Court to allow
amendment in pleadings by enacting that no application for amendment should be allowed after
the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence,
the party could not have raised the matter before the commencement of trial.
Amendment of pleadings when granted:- Amendment of pleadings can be granted by the Court
in two situations namely, (i) where the amendment is necessary for the determination of the real
question in controversy; and (ii) can the amendment be allowed without injustice to the other
side.
Amendment of pleadings when refused:- Amendment of pleadings can be refused in many
circumstances. Following are the situations or circumstances when amendment of pleadings can
be refused by the Court:-(32)
(1) When the proposed amendment is unnecessary.
(2) When the proposed amendment causes an injury to the opposite party which cannot be
compensated for by costs.
(3) When the proposed amendment changes the nature of the case.
(4) When the application for amendment is not made in good faith.
(5) When there has been an excessive delay in filing the amendment application.

Failure to amend:- Rule 18 of Order VI of Code of Civil Procedure, 1908 deals with this issue. It
provides that if a party who has obtained an order for leave to amend does not amend
accordingly within the time limited for that purpose by the order, or if no time is thereby limited
then within 14 days from the date of the order, he shall not be permitted to amend after the
expiration of such limited time as aforesaid or of such 14 days, as the case may be, unless the
time is extended by the Court.
Misjoinder of Parties
The joinder or inclusion of any person as a party to a suit contrary to the provisions of the code is
called misjoinder. Reasons for a court ruling that there is misjoinder include: a) the parties do not
have the same rights to a judgment; b) they have conflicting interests; c) the situations in each
claim (cause of action) are different or contradictory; or d) the defendants are not involved (even
slightly) in the same transaction. In a criminal prosecution the most common cause for
misjoinder is that the defendants were involved in different alleged crimes, or the charges are
based on different transactions
Misjoinder may be misjoinder of plaintiffs; misjoinder of defendants and misjoinder of cause of
actions.
A. Misjoinder of Plaintiffs: Where two or more persons may have been joined as plaintiffs in one
suit but the right to relief alleged to exist in each plaintiff does not arise out of the same act or
transaction (or series of acts or transaction) and if separate suits were brought by each plaintiff
no common question of fact or law would have been arisen, there is misjoinder of plaintiffs
B. Misjoinder of Defendants: Likewise, where two or more persons have been joined as
defendants in one suit but the right to relief alleged to exist against each defendant does not arise
out of the same act or transaction (or series of acts or transactions) and if separate suits were
brought against each defendant, no common question of fact or law would have arisen, there is
misjoinder of defendants.
C. Misjoinder of Cause of Action: Misjoinder of causes of action may be coupled with the
misjoinder of plaintiffs or misjoinder of defendants. Thus, the subject may be considered under
the following three heads
C.1 Misjoinder of Plaintiffs and Cause of Action: Where in a suit there are two or more plaintiffs
and two or more causes of action, the plaintiffs should be jointly interested in all the causes of
action. If the plaintiffs are not jointly interest in all the cause of action, the case is one of
misjoinder of plaintiffs and cause of action.
C.2 Misjoinder of Defendant and Causes of Action: Multifariousness: Where in a suit, there are
two or more defendants and two or more cause of action, the suit will be bad for misjoinder of
defendants and causes of action, if different causes of action are joined against different
defendants separately. Such a misjoinder is technically called multifariousness.
C.3 Misjoinder of Claims Founded on Several Causes of Actions: Order 2 of the Code of Civil
Procedure Code deals with the misjoinder of claims founded on several claims. According to the
Rule, every suit must include the whole claim which the plaintiff is entitled to make in respect of
that cause of action.
In Patasibai v. Ratanlal, an application for the correction of misdescription of the defendant (in
the plaint) was allowed, the correction could not be incorporated in the plaint. But, the
misdescription did not mislead any party. In fact, the written statement and the documents in
appeal carried the correct name. It was held that decree was valid.

Non-Joinder of the Parties and its Effect

When a person who is a necessary party to a suit has not been joined as a party to the suit, it is a
case of non-joinder. Thus non joinder can can be defined as an omission to join some person as a
party to a suit, whether as plaintiff or as defendant, who ought to have been joined according to
the law1. The Code does not define nonjoinder, but lays down "No suit shall be defeated by
reason of … non-joinder of parties, and the court may in every suit deal with the matter in
controversy so far as regards the rights and interests of the parties actually before it. " The
proviso to this Rule however excludes its applicability to cases of non-joinder of necessary
parties. ‘
Where a suit for possession was filed, and the defendant derived his title from the
auctionpurchaser in liquidations proceedings of a company, but the plaintiff sued for declaration
that the auction proceedings and the subsequent conveyance by auction purchaser to defendant
were void in law under a certain Act, it was held by the Supreme Court in Vishnu v. Rajan
Textile Mills20, that the liquidator was a necessary party and in his absence the suit for
declaration must fail.
Difference between Non - Joinder And Misjoinder: Misjoinderof parties means a joinder of a
party who ought not to have been joined either as a plaintiff or as a defendant. In other words, it
refers to impleading an unnecessary party. It may also refer to a situation in which a plaintiff is
impleaded as a defendant and vice-versa (party wrongfully impleaded)2. However, „Nonjoinder‟
refers to a situation when a party who ought to have been impleaded according to the law is not
impleaded. As opposed to presence of the wrong party, it refers to absence of a party.

1 Non-joinder of Parties in Civil Suits http://www.legalserviceindia.com/articles/cpc.htm

20
AIR 1975 SC 2079
2 (2001) 1 J & K Law Reporter 342
In case of non-joinder of necessary parties, the suit may be dismissed, but this is not so in case of
misjoinder.
Consequences of Non - Joinder of Necessary Parties: Non-joinder of parties is not fatal to a
suit. However, a distinction between non-joinder of someone who ought to have been joined and
someone whose joinder is only necessary for convenience is necessary. The former are necessary
parties, while the latter are only proper parties. Order 1, Rule 9 of the Code deals with
nonjoinder of parties, but is only a procedural provision, which does not affect the substantive
rights and duties of parties.
The absence of necessary parties means those parties from whom relief is being claimed are not
present, due to which the court cannot pass any effective decree. In such circumstances, the suit
can but does not have to be dismissed. If found legally justifiable, the court should grant the
relief being claimed by the plaintiff by passing a decree between the parties actually before it, so
long as that can be done legally and effectively. In Laxmishankar Hairshankar Bhatt v.
Yashram Vasta3 court also upheld an important legal principle - in a suit claiming property, until
and unless all the other co-owners are not impleaded, the suit shall not be maintainable.
The general principle of law is that the plea of non-joinder should be raised at the earliest
available opportunity. However, an exception is partition suits, in which the plea of non-joinder
of parties can be raised at any point of time. The reason for this, as laid down in Shanmugham
v. Saraswati4 is that this materially affects the subject - matter involved in the suit.
Holding that joinder or non-joinder of parties is too technical, it was held that this shall not
operate to deny a person any benefit under any enactment. In Narendra Singh v. Oriental Fire
and General Insurance Co. Ltd.5, Delhi, the benefit of Section 39 of the Motor Vehicles Act
was extended to the plaintiff even though the suit suffered from a non-joinder of parties. At the
same time, non-joinder should not be construed too liberally; otherwise the parties shall stand to
lose. If a partnership firm against another firm files a suit, all the partners have to be impleaded
as plaintiffs but not their legal representatives. For this reason, in Brij Kishore Sharma v. Ram
Singh6, the Supreme Court, reversing the decision of the trial court, held that the suit is not
maintainable. Pending the suit, one of the parties died and his legal representatives were not
brought on record. In the opinion of the court, the legal representatives should have been brought
on record.

3 AIR 1993 SC 1587

4 2008 (2) CTC 573
5 AIR 1987 Raj 77
6 Civil Appeal No. 1562 of 1980