GENERAL PRINCIPLES OF PLEADINGS

The following rules have to be borne in mind while drafting pleadings :

(1) Apleading must contain only material facts on which the party pleading relies.
(2) Itmust not contain evidence of fact (Order VI, R.2)
(3) Allnecessary particulars mustbe stated in the pleading (Order VI, R. 4)
(4) The performance of conditions precedent need not be alleged, but the non-performance of
such conditions, if relied on, must be pleaded. (Order VI, R. 6)
wgta

(5) Abare denial of acontract alleged by the opposite party is not to be constituted as a
denial of
the legality or sufficiency in law of such acontract. (Order VI, R. 8)
precise words are material. (Order VI, R.
(6) Documents need not be set out at length, unless the
9)
may be alleged as a fact, without setting out
(7) Conditions of the mind such as notice, knowledge, etc.
implied.(Order VIR. 10)
the circumstances from which the same.is to be
out the form or the precise terms of such notice,
(8) Notice may be alleged as a fact without setting
inferred. (Order VI, R. 11)
or the circumstances from which it is to be
persons may be alleged as a fact, and the series of
(9) Implied contracts or relations between inferred, need only
which th contracts are to be
letters, conversations or circumstances from
(Order VI, R. 12)
be set out generally, and not in detail.
which the law presumes in a party's favour or as to which the burden of proof lies on the
(10) Facts denied. (Order VI,R, 13)
other side need not be pleaded unless first
AppendiXAWhen applicable, and where they are not
Rule 3 - Form of Pleading :-The formsin
be, shall be used for all pleadings.
applicable forms of the like character, as nearly as may
:-C.P.C. provides the details and the particular
Rule 4 - Particulars to be given where necessary
words, itis essential that in a case where fraud is put
of the alleged invalidating circumstances. In other
set forth the details infull and give such
at the forefront, the complaining party(the plaintiff) should requirement as provided for
essential particulars instead of making general allegations. This is the legal
in Order VI. Rule4 of C.P.C.
 Rule 14- Pleading to be signed:- Rule14 of Order VI states that pleading shall bé SIgned by party
pleader(if any). However, in Karam Singh vs. Ram RachipalSingh AIR 1977 SC -the
and his by the party 1S purely of procedure
held that the requirement that a plaint should be signed and verified
deficiency at a later stage.
It isalways open to such party to make good the
Rule 15-Verification of pleadings -
time being in force, every pleading shall ba
(1) Save as otherwise provided by any law for theparties pleading or by some other person proved
verified at the foot bythe partyor by one of the
with the facts of the case.
tothe satisfaction of the court to be acquainted
to the numbered paragraphsof the pleading
(2)The person verifying shall specify, by reference verifies upon informationreceived and believed
what he verifies ofhis own knowledge and what he
to be true.
and shall state the date on which and the
(3)The verification shall be signed by the person making it
place at which it was signed.
affidavit in support of his pleadings.(inserted
(4)The person verifying the pleading shall also furnish an
by 1999 amendment w.e.f. 01/07/2002
held that Order VIRule 15 is not
In Kailash Singh vs. Hiralal Dey, AIR 1994 Gau 12; It was
cannot be rejected merely onthe
mandatory and any defect can be cured at any stage, further a plaint
plantiff himselfcame to the witness
ground that the plaint was not properly signed and or verified when
box and made out the case in the plaint.
AMENDMENTOF PLEADINGS

Different kinds of amendments:

mistakes-Sec. 152
i) Amendments ofjudgments, decrees or orders-clerical or arithmetical
(i) Amendment of any defect or error in any proceedings in asuit, for the purpose of determining
the real question of dispute between the parties-Sec. 153
(iii) Strikingout or adding parties-Order I, Rule 10(2)
(iv)Amending opponents pleading in case of its being scandalous, frivolous or vexatious etc. -
Compulsory amendment-Order VI, Rule 16[striking out pleadings]
(v) Amending own pleadings-Voluntary amendments-Order VI, Rule 17
Striking out pleadings - Order VIT Ruic 16:- Under this rule the court is empowered at any stag
tostrike out a pleading :
(a) Which may be unnecessary, scandalous, frivolous or vexatious; or
(b) Which may tend to prejudice, embarra[s or delay the fair trial of the suit; or
(c) Which is otherwise an abuse of the process of the court.
Amendment of pleadings - Rule 17:- The Court may at any stage of the proceedings allow e
party toalter or amend his pleadings in such manner and on such termsas may be just,and all su
questionsin
amendments shallbe made as may be necessary for the purpose of determining the real
controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, un
raisedthe
the court comes to the conclusion that in spite of due diligence, the party could not have
matter before the commnencement of trial.
 72002. Therefore
nA any stage" i- This proviso was inserted by 2002 amendu
ore the trial
oftthe proviso the word "at any stage" in the main provision m llr o
y virtue stage,
commences. Iff any party wishes to amend its pleading after the trial is commenccd o
is
t would not be open forthem to do so unless they qualifythe condition of the pro )10
ondition is not applicable to any pleading in a suit where trial is commenced before
and
"pue diligence"" :- The word due diligence in the proviso means the reasonable dil1gencc
exercises as a conduct
-easonable diligence means such care or caution which aordinary prudent man
exercised the required
fhis own affairs. Thus, the party seeking amendment must show that they had
raised the matter
-areand caution in their pleading and in spite of that they could not have possibly
before the beginning of the trial.
mandatory in the interest of
Note: This proviso though needs to be strictly construed but is not
ifapplicant is not malafid(Salem advocate case, 2005)eral -Proceslnal Rul an andmad
ustice courts should get at and try the
the
Object of Amendment :-The object ofOrder VI, Rule 17 is that
be necessary for the purpose of
merits of the case that come before them. Allamendments that may
therefore, be allowed provided
determining the real questionsin controversy between the parties should, claimedis within the period of
and the relief
itcan be done without causing injustice to the other side
between the parties and not for
limitation. The courts exist for the purpose of doing complete justice
of pleading in the larger interest of
punishing them. Thus, they have the power to grant amendments discretion has to be used judicially
discretionary. The
justice. But thispower given to the courts is entirely amendments a court
each case. Before allowing
on a consideration of the special circumstances of
should consider the following:
()) Whether it is in the interest of justice; or
in the controversy between the parties;
(0) Whether it is necessary for determining the real questions
or

(111) Whether it is necessary to prevent multiplicity of suits.

seeking the pleading or not.
(iv)whether the party has exercised the due diligence before
was held that if application for
In Abdul Rahman vs. Mohd. Ruldu, JT 2012 (10) SC 97 it spite of due
has to be shown that in
alnendment of plaint is filed after commencement ofa triai. it
of the case that come
diligence, it couldnot have been sought earlier, the courts should try the merits
necessary for determining the
velore them and should, consequently, allow all amendments that may be
or prejudice to the
Teal question in controversy between the parties provided it does not cause injustice
other side.
LEAVE TO AMEND-WHEN GRANTED
ent is wideenouoh It nmav nermi om
 Amendment will be allowed
in controversy between the
() if it is necessary for the purpose of determining the real question
parties:
(i) if the amendment does not cause injustice to the other side; and
(üi) if the amendment sub serves the ultimate cause of justice and avoids further litigation.
The principles established by judicialdecisions in respect of amendment of plaint are -
(i) All amendments willbe generally permissible when they are necessary for determination of the
real controversy in the suit.
(i1) Substitution of one cause of action or the nature of the claim for another in the original plaint or
change of the subject matter or contYoversy in the suyit isnot permissible
(üi) Introduction by amendment of inconsistent or contradictory allegation in negation of the admitted
position of facts, or mutually destructive allegation of facts are also impermissible though
inconsistent pleas on the admitted position can be introduced by way of amendment.
(iv)In general, the amendment should not prejudice the other side which cannot be compensated in
cost.

v)Amendments ofa claim or relief which is barred by limitation when the amendment is sought to
be made should not be allowed to defeat a legal right accrued by the other party except when
such consideration is outweighed by the special circumstances of the case.
dant,
the
g Set-off

is
eciprocal
the
whichforhe
f's
acquittal

o.might
of
debts.
intain
In
an
action
an
SET-0FF
action
recover
money, to
gainst

the
intiff,
set-off

and if
-clainfor
which

has
the
money
effect
of by
 > Particulars of set-off:- As per Order VIII Rule 6(1), where in asuit for the recovery of
the plaintiff, the defendant finds that he also has a claim of some amount against the plaintiff, he
claim set-off in respect of the said amount.
imoney by
> Conditions for claiming Set-off :
(i) the suit must be for recovery of money
(i) amount claimed must be of ascertained sum of money
(ii) the claimed amount must be legally recoverable by him from the plaintiff,
(iv) it must not exceeds the pecuniary limits of the jurisdiction of the court.
> Effect of set-off :- Rule 6(2) The written statement shall have the same effect as a plaint ina
cross-suit so as to enable the court to pronounce a final judgment in respect of both the original clain
and of the set-off.
DIFFERENCE :- LEGAL SET-OFF AND EQUITABLE SET-OFF
In Durga Pharma Distributors Vs. Geoffrey Manners &Co. Lid. (2000) 1 A.L.D. 312(And
Pra.) The provision of Rule 6 is for legal set off. However, the courts of equity in England alloweda
plea of equitable setoff where a claim for an unascertained amount of money which has arisen from the
same transaction was allowed as a discretionary set of. This principle is also impliedly recognized in
Order XX, Rule 193
For payment of Court-fee, there is no distinction between legal and equitableset-off. Both attrac
applicability of Sch. I, Art. Iof the Court-fees Act, 1870.
In Nathmal Bhaironbux vs. Kashi Ram AIR 1973 Raj. 271, a plea in the nature of an equitable
set-off is not available when the cross demands do not arise out of the same transaction.
In Jitendra Kumar Khan vs. Peerless General Finance &Investment Co. Ltd. (2013) 8 SCC
769)},the Court observed that Equitable set-off is different from Legal set-off under Order VII Rule.
6. Equitable set-off cannot be claimed by way of right. Court has discretion to allow or not toallow
equitable set-off, where discretion has to be exercised on principles of equity, justice and goad
conscience. Mutual debits and credits or cross-demands must arise out of same transaction for grant of
plea of equitable set-off.
Legal Set-off Equitable Set-off
(i)) It is for ascertained sum of money. It is for unascertained sunm of money.
(ü) It can be claimed as a matter of right.
It can not be claimed as matter of right. It is on discretion
of court to provide it.
(iü) It is not necessary here that it should have arisen out It should be arisen out of same
of same transaction. transaction.

(iv) It must be legally recoverable on the date of making It is not necessary that the amount is legally recoverable.
claim.

(v) The court fee is payable. The court fee is payable.

 COUNTER CLAIM
G Meaning :- Under Order VII, Rule 6A, A defendant in a suit may set up by way of counter
laim, any right or claim against the claim of plaintiff which arises before or after the institution of the
euit, but before the defendant has delivered his defence or before the time limited for delivering his
also. It is independent
defence has expired. This counter-claim may be a claim in the nature of damages
Irom the claim ofthe plaintiff; whether it is in the nature of a claim for damages or not.
G Conditions for claiming Counter-claim :
plaintiff,
(i) theclaimed amount must be legally recoverable by him from the
court,
(i) it must not exceed the pecuniary limits of the jurisdiction of thelimit for filing of defence.
(iii) the counter claimed must be filed within the permissible time
which he is claiming as a
(iv) the defendant must be entitled to file aseparate suit for the claim
counter claim.
Court. This is because the suit and the
There is no restriction regarding territorial jurisdiction of the
aanited proceeding.
counter-claim are in many ways not two independent proceedingsviabut1976 Amendment Act, by adding
inserted in
G Object :- The provision of Counter-claim was 1992 Or. 303, the object of enacting
Rule 6A-6G inOrder VIII. In Nabakishor vs. State of OrissaAIR cross-claims similar
the cause of action,
Rule 6-A is to reduce multiplicity of proceedings by providingjudgment
in nature can be clubbed together and disposed by a common by
In Gava Prasad vs. Janwanti DeviAIR 1998 Pat. 53 Rule 6-A of Order VIII was introduced
this new rule on the recommendation of the
amendment of 1976 and the very purpose of introducing
the proceedings inasmuch as ignoring the frame of
Law Commission of India was to avoid multiplicity of
giving right to the defendant to raise not only the plea of set-off but also counter-claim by
suit and whether the cause of action for counter-claim had
setting up rights to himself irrespective of the fact wordings and plain reading of Rule 6-A of Order
accrued afterwards of the filing of the suit. From the respect to any suit without having any restriction.
VIII, it is clear that it contemplates counter-claim with
reading of Order VII, Rule 6-A rather if it is restricted
Order. XX, Rulel9(1) cannot restrict harmonious frustrated.
sense then the whole purpose of introduction of new Rule 6-A to 6-G would be
in that the suit for eviction by setting up the claim of
Therefore, the counter-claim made by the defendant in
title, is maintainable.
(2) ALJ 3230 - In the present case, the Court
Man Singh vs. D.J. Ghazipur and others; 2013 raised against claim of plaintiff, that too, in
observed that the counter claim by defendant can only be
against plaintiff. In view of the plain and simple language
Tespect of cause of action accruing to defendant counter-claim by the defendant in the suit can only be
Used in the provision, it is ample clear that a
against the claim of the plaintiff that too in respect of cause of action accruing to the defendant
Taised counter-claim against the other defendants to the suit.
against the plaintiff. It does not permitfiling of a claim against a non-party to the suit
The legal position with respect to maintainability ofa counter (India) Pvt. Ltd vs. Saipem,
was laid down by the DelhiHigh Court in Gastech Process Engineering to the
Il(2009) CLT486 wherein it was held that counter claim is nof maintainable. against a nan-party
tool to the unscrupulous
Suit. By allowing right to file counterclaim to a non-party would be to give a
defendant to delay trial indefinitely.
B.) A
When to file counter-claim :- In Mangulu Piraivs. Prafulla Kumar AIR 1989 Ori. 50 (D.
Counter-claim can be filed bya defendant where the cause of action therefore had accrued to him before
he delivered his defence or the time to do so had expired. However, where such a counter-claim was
SOught to be raised when the suit was fixed for pronouncement ofjudgment, it could be justifiably
rejected as it would occasion delay and injustice.
Once a counter-claim is raised, trial Court has to frame an issue thereon :
Ettanunni Raja vs. Aravindaksha Menon (1997) 2 Ker. L.J. 740 (D. B.) Once a counter.ol,:

finding thereon while disposing of the suit.

counter-claentimeri
raised, it is incumbent on the trial court to frame an issue regarding the counter-claim and to
a
> Effect of Counter-claim :- Rule 6A(2) mentions that counter claim shall have the same effert
cross-suitFurthermore, Rule 6A(4)mention that it shall be treated as plaint, which means separ
court fee shallbe paid on counter-claim. However, Rule6A (3) provides that plaintiff c reply to the
counter-claim made by the defendant. Therefore, it is an exceptional case where plaintiff can file wri
statement.

Withdrawal of suit by the plaintiff will not effect the counter-claim made by the defendant. Therefo.
in spite of withdrawal of the main suit by the plaintiff, counter-claim of the defendant will proceed lH
an independentsuit. (Paban Kr. Sharma vs. Hiranya Kr. Bhuyan, AIR 2007 (NOC) Guj, 2309)
Rule 6C, Theplaintiff can argue that the defendant's claim ought not to be disposed ofby way of,
counter-claim, but by a separate suit and the court may pass an order to that effect.
DISTINCTION BETWEEN SET-OFF AND COUNTER-CLAIM
(A) In Anand Enterprises vs. Syndicate Bank AIR 1990 Karn. 175 Aset-off is a defence seeking
absolvement from payment of the claim; a counter-claim is a separate and independent action for
recovery from the other party and need not be limited to monetary claim only.
(B) There is no requirement that the counter-claim must be of the same nature as the claim of the
plaintiff or that it must be arising out of the same transaction. The counterclaim is not subjected
to the same restriction as a set-off is under O. VIlL, R.6
(C) In Christopher vs. State Bank of Travancore (1998) 1Ker. LJ. 698. The claim of set-off s
in the form of an implied contract. A failure to comply with the terms of the inplied contract
causes the resultant damage to the petitioner. The provision for allowing aset-off is Order VIl.
R.6, C.P.C. The main requirement of sucha claim are (a) it must be ascertained sum of money:
(b) such sum must be legally recoverable. In addition to set-off, the defendant can also raise a
counter-claim under R.6-A of Order VIII. But it must be in reference to the same cause ol
action. Where the subject matter of the suit was a claim of recovery of money given in the ro
of a loan to the defendant, whereas the claim of the petitioner was an implied contract to pay a
further advance and the resultant damage for the non-payment of the accounts, held, the cause 0
action put up by the petitioner was adifferent one, not directly connected with the recovery of
money.
(D) The set-off is a shield, not asword, However, counter-claim is a shield and a sword.