SVKMS

NMIMS SCHOOL OF LAW

A PROJECT SUBMITTED ON;

PLEADINGS
IN COMPLIANCE TO PARTIAL FULFILLMENT OF THE MARKING SCHEME, FOR
TRIMESTER VI OF 2015-2016, IN THE SUBJECT OF CIVIL PROCEDURE CODE
SUBMITTED TO FACULTY:
Prof. Shrikant Aithal
FOR EVALUATION
SUBMITTED BY:
Zenab Ali (A016)
Nandini Chawan (A024)
Deshna Golecha (A030)
Arlyn George (A058)
RECEIVED BY: ____________________________
ON DATE: __________ TIME: ________________

INDEX

Table Of Abbreviations

Table Of Cases and Statutes

Chapter 1

Introduction

Chapter 2

Research Methodology

Chapter 3

Legal Analysis

8-15

Chapter 4

RoleofJudiciary

16-19

Chapter 5

Comparative study

20-21

Chapter 6

Conclusion

22

Suggestions

23

Bibliography

24

Annexures

25-26

ABBREVIATIONS
Sn. no

Key word

Expanded Form

1.

AIR

All India Reporter

2.

C.P.C

Code of Civil Procedure

3.

Etc.

Etcetera

4.

HC

High Court

5.

i.e.,

That is

6.

Ind.

India

7.

Ors.

Others

8.

SC

Supreme Court

9.

Sec.

Section

10.
11.

Pg.
U.K.

Page
United Kingdom

12.

U.S.A

United States of America

13.

v.

Versus

14.

www

World wide web

TABLE OF CASES

Ajendraprasadji N. Pande & Anr. V. Swami Keshavprakeshdasji N. & Ors

Bharat Karsondas Thakkar V. M/s Kiran Construction Co. & Ors

Bhagwati Prasad vs. Shri Chandramaul

B.K. Narayana Pillai V. Parmeshwaran Pillai & Anr.

Hanuwant Singh Rawat V. M/s Rajputana Automobiles, Ajmer

Kailash V. Nankhu & Ors.

Lalita Prasad v. Gajadhar

Peethani Suryanarayana v. Repaka Venkata Ramana Kishore

Salem Advocate Bar Association v. Union of India

Sampat Kumar V. Ayyakannu & Anr.

TABLE OF STATUES

Federal Rules of Civil Procedure.

Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960
Specific Relief Act,1963
The Code of Civil Procedure, 1908

CHAPTER 1: INTRODUCTION
Before any dispute can be adjusted or decided it is necessary to ascertain the actual points at
issue between the disputants. Conceivably this may be done in several ways. Perhaps the
simplest is a process of direct questioning of the parties by the arbitrator or judge. Another
method is the exchange of written statements in advance of a direct hearing of the parties. Our
system calls for the development of issues by the parties themselves in formal manner in advance
of the actual trial. This is accomplished by requiring the serving on the opposing party or the
filing in court alternately by the parties of pleadings - written instruments wherein are set forth
the statements and contentions of each as to the points and facts in dispute. These pleadings are
to be distinguished from the lawyer's oral argument or "plea" made to the court or jury at the trial
of the case. Originally tinder the common law system the pleadings were oral, but for several
centuries they have been written and have become technical legal documents, carefully framed
by the attorneys of the parties. The content of these documents and the manner in which they are
to be employed in the litigation have become the subject of rules in general of a highly refined
nature. Pleading is the name given to the legal science which deals with these rules.
The pleadings therefore serve the primary purpose of acquainting the court and the parties with
the facts in dispute. They should in so doing point out the actual issues to be settled. Several
other purposes may also be served by the pleadings. Thus a Committee of the American Bar
Association classified the main purposes to be achieved by the pleadings as follows: (1) to serve
as a formal basis for the judgment to be entered; (2) to separate issues of fact from questions of'
law; (3) to give the litigants the advantage of the plea of res adjudicata if again molested; (4) to
notify the parties of the claims, defenses and cross-demands of their adversaries.' As hereinafter
pointed out in the discussion of "functions of Pleading. Furthermore, pleading is a branch of the
law of remedies existing for the enforcement of the substantive jural relations of the parties.

EVOLUTION
The system of pleading developed in the English courts of common law after the Norman
Conquest and applied in legal actions in this country until the pleading reforms of the middle and
the latter part of the nineteenth century is commonly called common law pleading. The system of
pleading developed in the English courts of chancery and likewise applied in the equity courts in
this country is termed equity pleading. Code pleading is the term applied to the reformed system
of pleading initiated by the New York Code of 1848 and now in force in some thirty American
jurisdictions. But since it developed from the former systems and in many respects continues
various details and parts of them, it is necessary to consider the antecedents of code pleading in
the other systems.
Under Indian system of law, Pleading are covered under Order 6 of Civil Procedure Code. Rule
1 defines pleading, while Rule 2 lays down the fundamental principles of pleadings. Rule 3 to
Rule 13 require the parties to supply necessary particulars. Rule 14 and 15 provide for signing
and verification of pleadings. Rule 16 empowers a court to strike out unnecessary pleadings.
Rule 17 and 18 contain provisions relating to amendment of pleadings.
SCOPE OF THE TOPIC
Pleadings do not only define the issues between the parties for the final decision of the court at
the trial, they manifest and exert their importance throughout the whole process of the litigation.
Pleadings provide a guide for the proper mode of trial. They demonstrate upon which party the
burden of proof lies, who has the right to open the case. They also determine the range off
admissible evidence which the parties should adduce at the trial. They also lay down limit on the
relief that can be granted by the court.
SCHEME OF THE TOPIC CONTENT
The first introductory chapter begins with the evolution of pleadings and its historical origin. It
dwells upon the way Criminal Procedure Code got introduced in India through the British during
their rule and the way the code went through its various amendments till its current form. The
chapter also covers the scope of study and the issues that would be discussed as part of the study.
The second chapter discusses about the research methodology in detail and even entails the
objective of the study and various limitations faced in the making of this project.
6

The third chapter deals with legal analysis whereby the researchers have discussed in detail the
current scenario of the situation prevailing in India. Moreover, various relevant legal and
criminal bodies have been discussed to have an in depth analysis. Furthermore, the researchers
have had a thorough study of the various criminal provisions which are discussed in Code of
Civil Procedure, 1908.
The fourth chapter specifically deals with the Role of judiciary which covers the important legal
provisions set out by the judiciary and various landmark cases have also been discussed to have
an in-depth knowledge about the topic.
The fifth chapter does a comparative study about the rules and procedures which are related to
pleadings in various countries. Moreover, distinction between pleadings under CPC, writ
petition, and counter affidavit has also been laid down.
The sixth chapter briefly summarizes the entire project topic and lays down the various
suggestions to overcome the challenges faced.

CHAPTER 2: RESEARCH METHODOLOGY

RELEVANCE OF THE TOPIC:
The term pleading refers to documents that are filed with a court, but not just any document may
be filed. Only those that conform to the rules of civil procedure and that serve a particular
purpose in accordance with those rules will be accepted by the court. Thus, the form a pleading
takes has an effect on the progress of the litigation. Specifically, pleadings help to frame a law
suit. That is they specify what gave rise to the case and what the litigation will be about, the law
that will help to resolve it, and the terms on which the parties believe it should be resolved. So
pleadings form the most important part of any law suit and therefore, it is necessary that a law
student is thorough with rules regarding pleadings.
OBJECT OF STUDY:
The sole purpose of carrying out this study is to acquire in- depth knowledge about pleadings in
a law suit as it is the foundation of a legal suit and without it, no suit can progress.
HYPOTHESIS/ RESEARCH QUESTIONS:
What are the relevant sections relating to pleadings in the Civil Procedure Code?
What are the important principles that the judiciary has set out in relation to pleadings?
How the rules on pleadings in India differ or resemble to that in U.S.A and U.K.?
What can be changed in the existing law to ensure more efficient outcomes?
LIMITATIONS OF RESEARCH:
The research has been carried out using the best possible ways and all authentic sources have
been referred to, so as far as content of our study is concerned, its validity or authenticity cannot
be disputed. The only constraint is that all that has been included in research is extracted from
works of other scholars and no primary research has been carried out for the study.
8

CHAPTER 3: LEGAL ANALYSIS

RELEVANT LEGAL BODIES

Pleadings are very important in civil cases. It is the duty of the lawyer to make a proper pleading.
Since a considerable percentage of litigants are either illiterate or not conversant with law the
duty of the lawyer of becomes more relevant facts of the case from the client. The lawyer has to
even to anticipate probable evidence that may be let in. All the details should be comprehended,
analyzed and assimilated before drafting the pleadings. A good case may sometimes be lost
because of bad drafting.
Pleading are intended to put forth the case of the parties before court. Pleadings constitute the
basis for the litigation. By the pleadings, the point at issue between the parties should be clear
and ambiguous. The opposite party is made known of the case of the other party by the
pleadings. While drafting the pleadings there should be no attempt to concealment of the relevant
facts. Astuteness in drafting is necessary. But it should not go to the extent of putting the
opposite party to surprise. From the pleadings, either party should be able to know what his
opponents case is and what case he has to meet. The parties should get a fair idea from the
pleadings as to what disputes involved in the case effectually and completely. Proper pleadings
would enable the court to raise proper issue for trial. It would enable the parties to adduce proper
evidence. It would enable the court to decide the case effectually and completely. Proper
pleadings would also avoid delay and minimize the expenditure of litigation. It is the duty of the
lawyer to ensure that correct facts are brought before the court. He should ensure that wrong
facts, calculated to mislead the court are not pleaded. Judicial Pronouncements are effect to the
effect that without proper pleadings, any amount of evidence is of no use and that such evidence
shall not be looked into by the court.
The Rules regarding pleading are provided in the Code of Civil Procedure Code. Certain other
statues also provide for particular facts to be pleaded. For example: Specific Relief Act, section
16(c) and 22. Certain defense would be available to a defendant, in the light of the provisions of
9

a statute. Such defense should not be omitted to be taken. The client would be able to supply
only facts. It is the duty of the lawyer to put forth the relevant facts in the pleadings so as to
make a foundation for a claim of defense, taken into account the relevant provision of law. The
role of the lawyer is very important in that context.
Rule 3 of Order II CPC provides for joinder of cause of action in the same suit. Rule 4 of Order
II stipulated what all causes of action can be joined with a suit for recovery of immovable
property. Order VI CPC provides for the pleadings generally. Order VII deals with the plaint.
Order VIII deals with written statement, set off and counter claim.
Every pleading shall contain, and contain only, a stamen in a concise form of the material facts
on which the party pleading relies for his claim or defense, nut not the evidence by which they
are to be proved. The pleading shall be divided into paragraphs and numbered consecutively.
Dates, sums and numbers shall be shown in figures as well as in words. If the party relies on any
misinterpretation, fraud or breach of trust, willful default or undue influence, the facts
constituting the same should be specifically pleaded. The burden of proof of misinterpretation,
frauds and undue influence is on the party who alleges the same.
Any condition precedent, the performance of occurrence of which is intended to be contested,
shall be distinctly be specified in the pleadings. No pleading shall except by way of amendment
raise any new ground of claim or contain any allegation of fact inconsistent with the previous
ruling of the party pleading the same. The provision for amendment of pleadings is contained in
Rule 17 of Order VI. It is true that the court may allow amendment of pleadings at any stage. But
after the amendment of CPC by ACT 22 of 2002, the scope of Rule 17 is restricted.
Pleading should not be scandalous, frivolous or vexatious. It should not contain matters which
would tend to prejudice, embarrass or delay the fair trial of the suit of which is otherwise an
abuse of the process of the court. The court has jurisdiction to strike out such pleadings or
portion of the same or to direct the parties to amend the pleadings.
PRESENT LEGAL FRAMEWORK
Presumptions of law

10

Neither party need in any pleading allege any matter of fact which the law presumes in his favor
or as to which the burden of proof lies upon the other side unless the same has first been
specifically denied (e.g., consideration for a bill of exchange where the plaintiff sues only on the
bill and not for the consideration as a substantive ground of claim).
Rules regarding pleadings:
The rules regarding pleadings are as under:
1. A pleading must state facts and not law.
2. It must contain only material facts on which the party pleading relies for his claim or defense.
3. It must state only the facts on which the party pleading relies for his claim or defense, and not
the evidence by which they are to be proved.
4. The facts must be in the form of a concise statement but in aiming at conciseness, precision
should not be sacrificed. The pleadings, when necessary, shall be divided into paragraphs,
numbered consecutively and each allegation being, so far as is convenient, contained in a
separate paragraph. Dates, sums and figures shall be expressed in figures.
5. Allegations in anticipation of the opponents answer should not be made. The pleading should
be confined to what is material at the present stage of the suit.
6. Facts necessary for the enforcement of a legal right or duty must be mentioned. Thus in a suit
for breach of contract on account of the negligence of the defendant, it has to be stated
specifically what kind of duty the defendant owed to the plaintiff and how was he negligent.
7. Performance of a condition precedent being implied in every pleading it need not be alleged;
the opposite party must specify distinctly the conditions, the performance or occurrence of which
he intends to contest.
8. Where the contents of any documents are material, it shall be sufficient in any pleading to state
the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless
the precise words of the document or any part thereof, are material.

11

9. Facts which the law presumes in ones favor or as to which the burden of proof lies upon the
opponent need not be pleaded.
10. The party should not plead conclusions of law. The pious obligation of a Hindu son to pay his
fathers debts need not be pleaded. But foreign law and certain customs and usages are not
judicially taken notice by courts and must be pleaded as facts.
11. Legal pleas such as estoppel, limitation and res-judicata may be pleaded.
12. In case where the party pleading relies on any misrepresentation, fraud, breach of trust,
willful default or undue influence, particulars shall be stated in the plaint.
The person verifying the pleading shall also furnish an affidavit in support of his pleadings.
Particulars to be given where necessary
In all cases 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 forms aforesaid, particulars (with date and items if
necessary) shall be stated in the pleading.
The most challenging problem facing the administration of justice in India is the backlog and
resulting delay in criminal and civil cases at every level, from the lower courts to the Supreme
Court. One of the provisions which contribute to it is provision related to amendment of
pleadings given in Order VI, rule 17 of the Code of Civil Procedure.
Order VI, Rule 17 of the Code of Civil Procedure deals with amendment of pleadings. Pleadings
are the case of the Plaintiff or the Defendant in Plaint and Written Statement respectively. An
amendment can be by way of altering something, modifying something, deleting something.
Amendment of pleadings
The Court may at any stage of the proceedings allow both party to alter or amend his pleadings
in such manner and on such terms as may be just and all such amendments shall be made as may
be necessary for the purpose of determining the real question in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced,
12

unless the Court comes to the conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of trial.
Amendment and its objectives
As stated earlier, essential details have to be mentioned in the plaint and unnecessary details have
to be struck out. The paramount object behind Amendment is that the courts should try the merits
of the cases that come before them 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 side. Ultimately, the courts exist for doing justice
between the parties and not for punishing them, and they are empowered to grant amendments of
pleadings in the larger interest of doing full and complete justice to parties Provisions for the
amendment of pleading are contained to promote end of justice and not for defeating them.
Further in the leading case of Cropper v. Smith, the object underlying the amendment of
pleadings has been laid down by Bowen, L.J. in the following words: I think it is wellestablished principle that the object of the courts is to decide the rights of the parties and not to
punish them for mistakes they make in the conduct of their cases by deciding otherwise than in
accordance with their rights.
Amending petitions delays justice
In a major judgment that aims to thwart attempts by a large section of litigants locked in civil
cases to delay proceedings for their benefit, the Supreme Court has said that the provision in the
Civil Procedure Code (Order VI Rule 7) that allows improvement in averments could be done
away with, as this is the most misused law for dragging the proceedings indefinitely.
The already overloaded civil courts are compelled to defer hearings, which causes delay in
disposal of disputes, the court said. Applications for amendment lead to further delay, it said.
Civil courts must adhere to certain guidelines while granting adjournments, the court said. And
they must assess whether the plea is counter-productive to speedy dispensation system. It must
be decided whether the plea for amendment to the petition is necessary for determining the real
disputed question. The court must exercise discretion while assessing the potentiality of
prejudice or injustice likely to be caused to the other side and award costs accordingly. A bench
13

of justices Dalveer Bhandari and Harjit Singh Bedi also said that discretion must be used
judiciously and the courts concerned must compensate the other party for unnecessary delay
and inconvenience caused to him.
The purpose of imposing exemplary costs, the Bench explained, was to discourage mala fide
amendments designed to delay legal proceedings. It compensates the other party for avoidable
expenses on the litigation, which had to be incurred by him for opposing the amendment and
lastly to send a clear message that the parties have to be careful while drafting the original
pleadings.
General Principle:
The court discussed the principles governing the Amendment of pleadings and held that "It is
clear that while deciding the application for amendment ordinarily the Court must not refuse
bona fide, legitimate, honest and necessary amendments and should never permit mala fide and
dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either
party to alter or amend his pleadings in such manner and on such terms as may be just.
Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts
while deciding such prayers should not adopt a hyper-technical approach. Liberal approach
should be the general rule particularly, in cases where the other side can be compensated with
costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations."
Guidelines for Amendment of Pleadings
1.

Cause of action in a suit cannot be altered by amendment of pleadings. The cause of

action will not be allowed to be substituted in totality and the reason being that the cause of
action is the very basis of a suit. If a new/distinct cause of action is there, the parties are always
free to go to the Court with such cause of action in an independent suit. But there can be cases
where the cause of action has got further aggravated by any further violation or some continuing
cause of action which can be joined in the present suit due to subsequent change of
circumstances. In such cases, the Court in its discretion is free to allow the amendment as that
would not be a case of substitution of cause of action.

14

2.

The Amendment of pleadings shall be allowed to bring or to clarify all matter in issue

before the Court. The matter in issue is essential for the determination of the suit and therefore
amendment can be made. Similarly, relief also can be amended. In such cases, if the amendment
is not allowed, the bar of res-judicata or as the case may be, the bar of Order II Rule 2 of the
Code of Civil Procedure, 1908 may apply. Therefore, the Court should try to bring a balance
between the injustice that might be caused to the applicant in case of refusal to grant relief and at
the same time, in case of allowing the application, the requirement of injustice caused to the
other party in the present suit.
3.

If a right has already accrued in pleadings to the opposite party, then the Court shall

normally be reluctant to allow the Amendment of pleadings. However, in such cases, if the loss
that will be caused to the other party can be adequately compensated for by cost then amendment
shall be allowed.
4.

When the court hears the application for Amendment of pleadings it does not go into the

merits of the case. While considering the prayer for amendment of the pleadings, the Court
cannot go into the issue of merits vis--vis maintainability of the suit, but can consider only
whether the amendment is necessary to determine the real controversy between the parties.
5.

If there is an undue delay in the filing of the application for amendment, without there

being sufficient cause shown to condone the delay, then the Court may normally not allow the
amendment.
6.

Change of law: The law can be a change of substantive law either prospective or

retrospective. If it is a prospective change then it normally not effect cause of action and matter
in issue in the pending suit and therefore, amendment is not needed. Whereas it is a retrospective
change, amendment might be needed and shall be allowed. If it is a change of procedural law
then normally pleadings will not be allowed to be amended but the court shall itself take note of
the change of procedural law.
Further, Order VI rule 18 of the Code of Civil Procedure, 1908 casts a duty on the party to carry
out the amendment, if allowed by the Court, within the time limited for the said purpose by the
order and if no time is thereby stated, then within 14 days from the date of the order. In case the
party fails to carry out amendment within the said period, he shall not be permitted to carry out
15

the amendment after the expiration of time limited, unless the time is further extended by the
Court.
HIGH COURT AMENDMENT
Karnataka: Re-number Rule 4 as Rule 4 (1) and add the following as Rule 4 (2):
(2) In a suit for infringement of a patent, the plaintiff shall state in his plaint or annex thereto the
particulars of the breaches relied upon, and the defendant if he disputes the validity of the patent
shall state in his written statement or annex thereto the particulars of the objections on which he
relies in support of such invalidity; at the hearing of any such suit no evidence shall, except with
the leave of the Court (to be given upon such terms as to the Court may seem just), be admitted
in proof of any alleged infringement or objections not raised in the particulars of breaches or
objections respectively. (30.3.1967).
STATE AMENDMENT
(As inserted by States)
Rule 4-A
Madhya Pradesh: Alter Rule 4, the following shall be inserted, namely:
4-A. Particulars of pleading for agricultural land. In any suit or proceeding contemplated
under Rule 3-B of Order 1, the parties, other than the State Government shall plead the
particulars of total agricultural land which is owned, claimed or held by them in any right and
shall further declare whether the subject matter of suit or proceeding is or is not covered by
Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 (No. 20 of 1960) and whether any
proceedings in relation to such subject matter are to the knowledge of the party pending before
the competent authority. M.P. Act. No. 29 of 1984 (w.e.f. 14-8 1984).

16

CHAPTER 4: ROLE OF JUDICIARY

In a setup like ours, where there is no strict separation of powers, judiciary can step into
legislatures shoes if situations demand so. Accordingly, whenever there are lacunae or gaps left
in by legislature, the judiciary fills that gap so that justice is met in all probable situations.
Judicial Law Making (Important Legal Principles Set Out By Judiciary):
In Bhagwati Prasad vs. Shri Chandramaul1: Supreme Court ruled out that
If a plea is not specifically made and yet it is covered by an issue by implication, and the parties
knew that the said plea was involved in the trial, then the mere fact that the plea was not
expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is
satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded
on pleadings made by the parties. But where the substantial matter relating to the title of both
parties to the suit was touched, tough indirectly or even obscurely in the issues, 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.
In Lalita Prasad v. Gajadhar2, it was observed that a pleading must not set forth a public
statute, for the court is bound to take judicial notice of it. It should set out only facts, and the
relief sought, and not the law or the particular section of the statute under which the claim is
made. Nor should the parties plead conclusions of law or of mixed law and fact. It is for the court
to declare law arising upon the facts before it. The parties should state only the facts on which
they rely for their claim or defence.

1 AIR 1966 SC 735

2 AIR 1933 All 235, also Syed Dastagir v. Gupalkrishna, (1999) 6 SCC 337
17

Guidelines for amendment of pleadings as set by judiciary in various cases:

In Hanuwant Singh Rawat V. M/s Rajputana Automobiles, Ajmer3, the Rajasthan High Court
summarised the legal position as under:(i)

That the amendment of pleadings should ordinarily be allowed by the Court, once it is
satisfied that the amendment is necessary for the just and proper decision of the
controversy between the parties;

(ii)

The amendment of pleadings should not ordinarily be declined only on the ground of
delay on the part of the appellant in seeking leave of the Court to amend the
pleadings, if the opposite party can suitably be compensated by means of costs etc.
Even inconsistent pleas can be allowed to be raised by amendment in the pleadings;

(iii)

However, amendment of pleadings cannot be allowed so as to completely alter the

nature of the Suit;

(iv)

Amendment of the pleadings must not be allowed when amendment is not necessary
for the purpose of determining the real question(s) in the controversy between the
parties;

(v)

The amendment should be refused where the plaintiffs Suit would be wholly
displaced by the proposed amendment;

(vi)

Where the effect of the amendment would be to take away from the defendant a legal
right which has accrued to him by lapse of time or by operation of some law;

(vii)

The amendment in the pleadings should not be allowed where the court finds that
amendment sought for has not been made in good faith or suffers from lack of bona
fides;

3 (1993) 1 WLC 625

18

(viii)

And ordinarily, the amendment must not be allowed where a party wants to withdraw
from the admission made by it in the original pleadings.

Similarly, in the case of Peethani Suryanarayana v. Repaka Venkata Ramana Kishore4, it

was held that the Courts hold the power to allow such amendment provided: (a) Application is
bonafide (b) Does not cause injustice to the other side (c) Does not affect the right(s) already
accrued to the other side.
Amendment should not change the basic structure of the Suit:In Sampat Kumar V. Ayyakannu & Anr.5, the Supreme Court held that any amendment seeking
to introduce a cause of action, which arose during pendency of the Suit, may be permitted in
order to avoid multiplicity of Suit. But, it should not change the basic structure of the Suit. More
so, the court should be liberal to allow amendment at the time of pre-trial of a Suit but must be
strict and examine the issue of delay where the application for amendment is filed at a much
belated stage of commencement of the trial.
In Bharat Karsondas Thakkar V. M/s Kiran Construction Co. & Ors. 6, the Supreme Court
held that amendment is not permissible if it changes the nature of suit.
In Ajendraprasadji N. Pande & Anr. V. Swami Keshavprakeshdasji N. & Ors., 7 the Supreme
Court considered the scope of amendment in Order VI Rule 17 C.P.C. by adding a proviso to the
effect that amendment application should be filed prior to commencement of the trial. The Apex
Court held that trial commences when the issues are settled and case is set down for recording of
evidence. The Apex Court observed that unless the party satisfies the Court that in spite of due
diligence, the issue could not be raised in the suit or proceedings before the commencement of
4 (2009) 11 SCC 308
5 (2002) 7 SCC 559
6 2008 AIR SCW 3192
7 2007 AIR SCW 513
19

trial, the amendment should not be allowed. While deciding the said case, the Apex Court
considered a large number of its earlier judgments particularly B.K. Narayana Pillai V.
Parmeshwaran Pillai & Anr.8; Kailash V. Nankhu & Ors.9; & Baldev Singh & Ors. Manohar
Singh & Anr.10, wherein it had been held that the delay of its own, untouched by fraud is not a
ground for rejecting the application for amendment. The provisions are procedural, and therefore,
should be construed liberally to advance the case of justice and not to retard or to defeat justice.
Landmark Case:
Salem Advocate Bar Association v. Union of India (2005) 6 SCC 344.11
The Honorable Judges presiding over the case were Y.K. Sabharwal, D.M. Dharmadhikari and
Tarun Chatterjee. The subject is basically related to Constitution and is a case of civil nature. In
this case there were certain amendments made to Code of Civil Procedure, 1908 by the
Amendment Acts of 1999 and 2002.
Written statement : Order 8 Rules 1 and 10 of Code of Civil Procedure, 1908:
Order VIII Rule 1, as amended by Act 46 of 1999 provides that the defendant shall within 30
days from the date of service of summons on him; present a written statement of his defence. The
rigour of this provision was reduced by Amendment Act 22 of 2002 which enables the Court to
extend time for filing written statement, on recording sufficient reasons therefore, but the
extension can be for 90 days to the maximum.
The question was whether the Court has any power or jurisdiction to extend the period beyond
90 days. The maximum period of 90 days to file written statement has been provided but the
consequences on failure to file written statement within the said period have not been provided
for in Order VIII Rule 1. The point for consideration was whether the provision providing for
8 (2001) 1 SCC 712
9 (2005) 4 SCC 480
10 (2006) 6 SCC 498
11 See Annexure 1: certain cases where written statement filed after 90 days
20

maximum period of ninety days is mandatory and, therefore, the Court is altogether powerless to
extend the time even in an exceptionally hard case. It has been common practice for the parties to
take long adjournments for filing written statements. The legislature with a view to curb this
practice and to avoid unnecessary delay and adjournments has provided for the maximum period
within which the written statement is required to be filed.
Held: It was held that the limitation provided under Rule 1 is only directory and finally Court
empowered to extend time limit in exceptional cases.

21

CHAPTER 5: COMPARATIVE STUDY

Distinction between pleadings under CPC, writ petition, counter affidavit
There is a distinction between a pleading under the Code of Civil Procedure and a writ petition
or a counter affidavit. In pleadings i.e., the plaint or a written statement, the facts and not
evidence are required to be pleaded. However in a writ petition or in the counter affidavit not
only facts are to be pleaded but also the evidence in proof of such facts have to be annexed to it.
12

Strict rules of pleading may not apply to Public Interest Litigation (PIL) but there must be
sufficient material in petition on the basis of which the court may proceed. The PIL litigant has to
lay a factual foundation for his averments on the basis of which relief is claimed. The
information furnished by him should not be vague and indefinite. Prefer pleadings are necessary
to meet the requirements of principles of material justice. 13
Distinction among various countries with respect to pleadings
In law as practiced in countries that follow the English models, a pleading is a formal written
statement of a party's claims or defences to another party's claims in a civil action. The parties'
pleadings in a case define the issues to be adjudicated in the action.
The Civil Procedure Rules (CPR) govern pleading in England and Wales. Federal Rules of Civil
Procedure govern pleading in United States federal courts. Each state in the United States has its
own statutes and rules that govern pleading in the courts of that state.
UNITED STATES: Pleading in United States Federal courts is governed by the Federal Rules of
Civil Procedure.
According to Rule 7, only these pleadings are allowed:
12 Ranjit Constructions Co. Ltd. v. National Highways Authority of India Ltd.,
A.I.R.2004 Del. 64.
13 Narmada Bachao Andolan v. State of MP, AIR 2011 SC 1989, Order 6 , Rule 2.
22

1. A complaint;
2. An answer to a complaint;
3. An answer to a counterclaim designated as a counterclaim;
4. An answer to a cross claim;
5. A third-party complaint;
6. An answer to a third-party complaint; and
7. If the court orders one, a reply to an answer
Any other document that requests a court order is referred to as a motion.
In the United States, a complaint is the first pleading filed by a plaintiff which initiates a lawsuit.
A complaint sets forth the relevant allegations of fact that give rise to one or more legal causes of
action along with a prayer for relief and sometimes a statement of damages claimed (an ad quod
damnum clause). In some situations, a complaint is called a petition, in which case the party
filing it is called the petitioner and the other party is the respondent. In equity, sometimes called
chancery, the initial pleading may be called either a petition or a bill of complaint in chancery.
ENGLAND AND WALES: Pleading in England and Wales is covered by the Civil Procedure
Rules (CPR). These rules set a high priority on attempts to resolve all matters able to be resolved
by the parties, prior to hearing (or trial).
The pleadings are contained in various Statements of Case - usually the Claim and any
associated Particulars of Claim, the Defence, and an optional reply to the Defence. The Claim,
Particulars of Claim, and Defence, are broadly equivalent to the Summons, Complaint and
Answer filed in some other jurisdictions). The pleadings set out succinctly the claims made by
each side, and their legal basis, and provide a basis to explore the issues in the case. They must
specify the basic facts which are alleged, but need not evidence those facts or any extensive legal
argument (these are addressed at later stages of the process). Some types of allegation must be
expressly stated in the appropriate statement of case, if they will be alleged or relied upon at a
later stage.

23

When used in civil proceedings in England and Wales, the term "complaint" refers to the
mechanism by which civil proceedings are instituted in the magistrates' court and may be either
written or oral.

24

CHAPTER 6: CONCLUSION
Pleadings provide a guide for the proper mode of trial. It basically establishes the issues between
the parties for the final decision of the court at the trial, they manifest and exhibit their
significance throughout the whole process of the litigation. Furthermore, it even demonstrates
upon which party the burden of proof lies and who has the right to open the case. They also
determine the range off permissible evidence which the parties should adduce at the trial.
Moreover, lay down limit on the relief that can be granted by the court. Thus, pleadings form an
integral and the most vital part of the entire law suit.
However it should be noted, the Court may at any stage of the proceedings permit both the
parties to alter or amend his pleadings in such manner and on such terms as may be just and all
such amendments shall be made as may be necessary for the purpose of determining the real
question in controversy between the parties. Provided that no application for amendment shall be
allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of
due diligence, the party could not have raised the matter before the commencement of trial. This
provision for amendment of the plaint is contained in Rule 17 of Order VI. Various case laws
have been discussed in this project which specifically deal with amendment of pleadings. For
example in the case Hanuwant Singh Rawat V. M/s Rajputana Automobiles, Ajmer it was held
Amendment should not change the basic structure of the Suit and the same was even held in
Bharat Karsondas Thakkar V. M/s Kiran Construction Co. & Ors. Moreover, in the case of
Sampat Kumar V. Ayyakannu & Anr the court laid down the guidelines for amendment of
pleadings. Furthermore, in the case of Lalita Prasad v. Gajadhar , it was observed that a
pleading must not set forth a public statute, for the court is bound to take judicial notice of it. It
should set out only facts, and the relief sought, and not the law or the particular section of the
statute under which the claim is made. Nor should the parties plead conclusions of law or of
mixed law and fact. It is for the court to declare law arising upon the facts before it. The parties
should state only the facts on which they rely for their claim or defence.

25

26

SUGGESTIONS

27

BIBLIOGRAPHY
BOOKS REFERRED
Criminal Procedure Code (Cr.P.C.) by Tandon, revised by Shailender Malik, 18th
edition,reprint 2012
Criminal Procedure Code (Theory with Q.A.) by Ashok K.Jain
Criminal Procedure Code, 1973 (In 2 Vols.) by Durga Das Basu, 5th edition, 2014
WEBSITES REFERRED

http://civilprocedure.uslegal.com/the-course-of-a-civil-lawsuit/the-pleadings-stage-of-a-

case/
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?

article=4226&context=fss_papers
http://www.legalservicesindia.com/article/article/amendment-to-pleadings-and-the-

approach-of-the-judiciary-1427-1.html
http://www.nja.nic.in/16%20CPC.pdf

28

ANNEXURE
Title of the

Date of

Date of

Cause for the Delay

Decision of the Court and

Case

Service of

Filing of

the rule/ principle evolved/

Summons

Written

applied

Statement
Kailash v.

06.04.2004

08.07.2004

Nanhku

Death of the nephew of Written statement accepted

the defendants counsel Proviso to O. VIII, R. 1 is
directory and by way of an
exception and for reasons
recorded,

Rani

10.11.2003

10.07.2004

Kusum

departure

No reason cited in the

permissible.
Written statement

judgment

accepted

is

v. Kanchan

The 2002 Amendment dealt

Devi

with only the obligation of

the
defendant and not the power

Shaikh

21.10.2003

20.02.2004

of the courts
The trial court had Accepted the written

Salim

itself

adjourned

the statement

Haji Abdul

matter to a date beyond No person to suffer

Khayumsab

90 days period. The from an act of a court

v. Kumar

said date was a holiday

and the defence was
filed the next day.

Aditya
Hotels

22.03.2005

August

No reasons cited by the Acceptance refused

2005

defendant
29

(P) Ltd. v.

No reason(s) had been

Bombay

indicated justifying the

Swadeshi

acceptance of the

Stores Ltd.

belated written

Mohammed 06.07.2002

statement
Acceptance refused

Yusuf

v.

31.05.2005

No reason cited in the

judgment

Faij

Nankhu is no authority

Mohamma

for indiscriminate and

routine acceptance of
belated written statements.

30

31