CODE OF CIVIL PROCEDURE - I

RULES

OF PLEADINGS AND

SURVEY

CRITICAL

ANALYSIS
Submitted by:

T U SH AAR T ALWAR I D N O . 1773 III Y EAR B . A .

LL . B .

( HONS )

8th S EPTEM BER , 2011

Table of Contents

Table of Contents........................................................................2 Table of Cases............................................................................6 Introduction................................................................................7 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, 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...........................7 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. .............................................................7 It is precisely this role that the pre-trial proceedings play in the 2

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..................................................7 Research Methodology................................................................9 Aims and Objectives:...................................................................9 Chapter 1: ORDER VI - Pleadings................................................10 1.1 General Rules Regarding Pleadings...................................................................................10 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. 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. 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. ............................10 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. 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. ..........................................10 1.2 Object of Pleadings.............................................................................................................12 1.3 Effect of Deficiency in Pleadings.......................................................................................12 1.4 Basic Rules of Pleadings: Rule 2........................................................................................14 1.4.1 Facts and not law:........................................................................14 1.4.2 Material Facts and Material Facts only:........................................14 1.4.3 Facts and not Evidence:...............................................................16

1.4.4 Concise Form:...............................................................................17 1.5 Pleadings in which Particulars are required under the Code: Rules 4-13..........................17 1.6 Signing and Verifications of Pleadings: Rules 14 & 15....................................................20 1.7 Striking out Pleadings: Rule 16..........................................................................................20 1.8 Amendment of Pleadings: Rules 17 & 18..........................................................................21 1.8.1 When Leave to Amend Might be Granted:...................................21 1.8.2 When Leave to Amend would be refused:....................................24 Chapter 2: Plaint - Order VII.......................................................26 2.1 Particulars to be contained in a Plaint................................................................................26 2.2 Return of Plaint: Rule 10....................................................................................................30 2.3. Rejection of Plaint: Rule 11...............................................................................................34 2.3.1 Non-Disclosure of Cause of Action:..............................................36 2.3.2 Where Relief Claimed is undervalued:.........................................37 2.3.3 Where Plaint is insufficiently stamped:........................................37 2.3.4 Where Suit appears to be barred by law:.....................................37 2.4 Production of Documents on Which the Plaintiff relies: Rules 14 & 15...........................38 2.4.1 Effect of Non-Production:..............................................................38 Chapter 3: Written Statements - Order VIII.................................40 3.1 Specific Rules: Rules 1 to 5, 7 to 10...................................................................................40 3.1.1 Rules of defence:..........................................................................40 Conclusion................................................................................43 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............................................................43 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............................................................................................43 Bibliography.............................................................................44

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.

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.

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

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.

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.

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 3

O. IV, R. 1(1). 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 appellantdefendant 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 8

Supra note 4, at 506. 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 should
11 12

Supra note 7, at 880. 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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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

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
16 17 18

O. VI, R.2. Supra note 7, at 884.

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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 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
19

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

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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 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
22 23

Supra note 20, at 215. Supra note 24 M.L. Singhal v. Pradeep Mathur & Anr., AIR 1996 Del. 261.

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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 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

25

Supra note 4, at 534.

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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 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.
26 27

Supra note 4, at 534. 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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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. 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.

29

O. VI, R. 6.

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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 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
30 31

Supra note 27, at 146. Supra note 27, at 148. 32 Supra note 4, at 548.

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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. 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
33 34

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

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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 & 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
36 37

Supra note 4, at 551. Supra note 4, at 551. 38 Sampath Kumar v. Ayyakannu & Anr, AIR 2002 SC 3369.

22

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 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.

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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 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
39 40

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

24

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.

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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.

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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 protected from eviction if he deposits on court or pays to the landlord an amount determined by
43 44

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

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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 superintendent 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 added by the Amendment Act 1976 empowers the court to permit the plaintiff to rely on a new ground
47

Venkatesh Iyer v. Bombay Hospital Trust, AIR 1998 Bom. 373.

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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 been asked for, and the same rule shall apply to any relief claimed by the defendant in his written statement. Order II Rule 2
48

Hindalco Industries Ltd. v. Union of India, (1994) 2 SCC 594.

29

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. Where at any stage of the suit, the court finds that it has no jurisdiction, either territorial or 30

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 territorial50, 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 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.
49 50

Supra note 7, at 948. 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.

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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 postdated 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 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
55 56

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

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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 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 33

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 nonpayment 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 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
57 58

Supra note 7, at 1004. AIR 2003 SC 759.

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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 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
59 60

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

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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 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 36

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 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
61 62

Supra note 4, at 604. Supra note 6, at 613. 63 Supra note 4, at 614. 64 Supra note 4, at 615.

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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.

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 crossexamination of the defendants witnesses, or in answer to any case set up by the defendant or

65

Supra note 4, at 615

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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 67

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

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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 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
68 69

O. VIII, R. 1(1). O. VIII, R. 1(2) 70 O. VIII, R. 8A(1), (2). 71 O. VIII, R. 2. 72 O. VIII, Rr. 3, 4.

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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 counterclaim 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 defendant, as the case may be, in his written statement. The court is empowered to take notice of such subsequent events.78
73 74

O. VIII, Rr. 5(1) and 3(1). Supra note 7, at 1019. 75 O. VIII, R.7. 76 O. VIII, R.8. 77 O. VIII, R. 9. 78 O. 8, R. 8.

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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

79 80

O. 8, R. 9. O. 8, R. 10.

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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.

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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).

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