UNIT-4

PLEADINGS
 Pleadings
Pleadings

Material Facts
Material Facts Specific Clear Requisite Data
Only Specific Clear Requisite Data
Only

Not Law, Vague & Indefinite

Not Law, Vague & Indefinite
 ?????

 It is settled law……
 …..that pleadings must contain
 only factaprobanda ….. required to be proved
 and not facta probantia….. the facts by means of which they are proved
 Material fact

 Fact & Material Fact ……?

 “Facts”……..broad situations which give a clear picture of the dispute.
 “material facts” …….. those facts …….are an absolute
 must for a party
 to establish his claim to a relief he seeks
 Cont….

 Formal document

 Main spine & prickle of litigation….

 Pleadings…….

 Not only define the issues…..

 Manifest & exert their importance …..throughout the whole

process of litigation……………
 What........

 means.......
 Plaint or written statement
 Object......ascertain real dispute......between
parties
 Narrow down area of conflict
 Make aware of questions to be argued
 Cont…

 ……. very important in civil cases

 A good case may sometimes be lost
 …….. because of bad drafting
 Prevent miscarriage of justice
 Cont…

 Order 6(1) deals with pleadings in general

To bring parties definite issues

To diminish expenses & delay

To prevent surprise at hearing

 Importance

 Provide a guide ……
 ……..for the proper mode of trial
 …….. demonstrate upon which party the burden of proof lies
 ……….who has the right to open the case
 Cont….

 ……..determine the range of admissible evidence

 …….which the parties should adduce at the trial
 …….. lay down limit on the relief that can be granted by the court
 Fundamental …….

 Pleadings should state facts & not law

 Facts should be material facts

 Pleadings should not state the evidence

 The facts should be stated in concise form

 ???

 Kedar Lal v. Hari Lal, AIR 1952 SC 47

 ….it was held that it is the duty of the parties to

state only the facts on which they rely upon their
claims.
 It is for the Court to apply the law to the facts
pleaded
 Virender Nath v. Satpal Singh
AIR 2007 SC 581.

  Supreme Court held that:- “The phrase ‘material facts’ may be said to be
those facts upon which a party relies for his claim or defence.

 In other words, ‘material facts’ are facts upon which the plaintiff’s cause of
action or the defendant’s defence depends. What particulars could be said to
be ‘material facts’ would depend upon the fats of each case and no rule of
universal application can be laid down.
Cont…
 It is, however, absolutely essential that all basic and primary facts which must
be proved at the trial
 by the party to establish the existence of a cause of action or defence are
material facts and must be stated in the pleading by as the party.
 “A distinction between ‘material facts’ and ‘particulars’, however, must not be
overlooked.
 Material facts’ are primary or basic facts which must be pleaded by the
plaintiff or by the defendant in support of the case set up by him
 either to prove his cause of action or defence.
Cont…
 ‘Particulars’, on the other hand, are details in support of
material facts pleaded by the party.
 They amplify, refine and embellish material facts by giving
distinctive touch to the basic contours of a picture already
drawn so as to make it full, more clear and more
informative.
 ‘Particulars’ thus ensure conduct of fair trial and would not
take the opposite party by surprise.”
 The Supreme Court further said that whether a particular
fact is or is not a material fact which is required to pleaded
by a party depends on the facts and circumstances of each
case.
Case-law
????????
Case-law

VIRENDRA KASHINATH RAVANT AND ANOTHER 

Vs. 
VINAYAK N.JOSHI AND OTHERS
AIR 1999 SC 162
Suit:....for eviction
 Facts.....

 Appellants ........ Landlords

 .........building situate at Benham Hall Lane, Mumbai
 ...... let out to Shanta Sabnis..... Original Tenant
 After her death......
 Her daughter.....continued as a .......
 Cont.....

 ........filed a suit for eviction ....

 On the ground......
 that the premises were sub-let to the.....third parties
 2nd Res.......

 contended that ....

 she is the only daughter of Shanta Sabnis
 and hence the tenancy right has devolved on her with the death of her mother.
 She disputed the contention of the appellants
 that the building had been sublet to the third .....
 Cont....

 .....but stated that

 she was allowed by her mother and grand-mother
 to reside in the building
 for the purpose of looking after her mother
 and grand-mother who were old and sick.
 1st res.....

 .......admitted that he is in possession of the suit premises.

 .....contended that he was permitted by the tenant
 …………. to occupy the building on leave and license basis
 Cont…

 under an agreement dated 16.10.1971 and he continued in such possession on

1.2.1973 and also thereafter.
 So ...... claimed protection under Section 15A of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947
 Trail.....

 .....found that .........1st res… was inducted into possession ........

 The claim made by……
 ………. for protection under Section 15A of the Act
 was repelled
 trial court…

 concluded that induction of....... into the building

 amounted to unlawful subletting.
 On the strength of the above finding
 …….. a decree for eviction was granted
 Cont.......

 The appellate authority .......confirmed the decree for eviction

 Before H.C........
 High Court approached the issue
 ………..from a new angle
 untouched by the trial court and the appellate authority
 H.C.......

 observed first ......

 that appellants have not treated the defendant as their tenant
 and secondly that there is no clear averment in the plaint to the effect
 that the building has been sub-let to the 1st res..
 Cont......

 It is therefore, ...
 clear that in order to be entitled to a decree of eviction against the tenant
 …….on the ground of unlawful sub-letting an averment in the Plaint is must
that the tenant has unlawfully sub-let the suit premises.
 It is clear from the allegation in the plaint that the plaintiffs were not treating
any of the named defendants as their tenants.
 Cont......

 .......the Tenant of the plaintiffs viz. Ms. Shanta had expired before institution
of the suit.
 Therefore, there is no question of the plaintiffs being in a position to make a
statement
 that the tenant inducted 3rd parties ....as unlawful subtenant.
 Order of H.C.....

 In these circumstances,
 a decree of eviction could not have been passed against the petitioner ....
 because averments necessary for passing a decree itself were absent in the Plaint.
 both the courts below have committed grave error of law in overlooking these
aspects of the matter which were crucial for deciding the controversy in the matter.
 Sc observed...

 The High Court was not justified

 .......in non-suiting the appellants on the premise that they have "no where treated
the defendant as their tenant.
 " The clear averments in the plaint regarding the tenant are the following:
 "One Miss Shanta B. Sabnis during her life time was Plaintiffs' monthly tenant in
respect of the building bearing No. 7 on a monthly rent of Rs. 12.85.
 Cont.....

 The said Miss Shanta B. Sabnis died some time ago leaving behind her mother
as the heir and legal representative.
 It admits of no doubt that appellants have clearly recognised Ms. Shanta
Sabnis as their tenant in respect of the suit premises.
 Admission of..........subletting to the 3rd party,
 Cont.....

 the High Court has

 exceeded its jurisdiction
 by upsetting the concurrent finding of facts reached by the two fact finding
courts,
 on a very fragile reasoning that there was no sufficient averment in the plaint
 Order 6 Rule 5 ......

 .......confers powers on the Court

 to order a party to make a further statement
 or even a better statement
 or further and better particulars of any matter already mentioned in the
pleading.
 no suit shall be dismissed merely on the ground that more particulars are not
stated in the pleadings.
 Under Order 6 Rule 2(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 defence,
 as the case may be, but not the evidence by which they are to be proved.
 The object .......

 .........of the Rule is two-fold

 First is to afford the other said intimation regarding the particular facts of his
case so that they may be met by the other side.
 Second is to enable the court to determine what is really the issue between the
parties.
 Cont......

 a statement in a concise form" are definitely

suggestive that brevity should be adhered to while
drafting pleadings.
 Of course brevity should not be at the cost of setting
out necessary facts, but it does not mean niggling in
the pleadings.
 Cont….

 Elaboration of facts in pleadings is not the ideal

measure
 and that is why the sub-rule embodied the words
"and contain only" just before the succeeding
words "a statement in a concise form of the
material facts".
 Cont.......

 "Procedural law is intended to facilitate and not to obstruct the course of

substantive justice. Provisions relating to pleadings in civil cases are meant to give
to each side intimation of the case of the other so that it may be met to enable
Courts to determine what is really at issue between parties, and to prevent
deviations from the course which litigation on particular causes of action must take.
 Finally.....

 High Court has thus erred as it exceeded its jurisdiction.

 Hence ……..allow this appeal and set aside the impugned judgment of the
High Court
 ……..and restore the order of the trial court as confirmed by the appellate
court.
PLA
I NT
Plaint & its Particulars
 …….has not been defined
 ………statement of 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
 …… pleading of the plaintiff
Order. 7 Rule. 1-8

 Relate to particulars of plaint

 Every plaint should contain…
 Name of the court,
 Name & Address of plaintiff & defendant,
 in case of minor or unsound mind
 ……..-statement to that effect,
 cause of action & when it arose-Jurisdiction-Relief
 Cont…

 If the suit is in representative capacity……..

 ……. must show actual existing interest in subject matter
 ……..allowed a set-off or relinquished a portion of claim,
 ……..the amount so allowed or relinquished
 Cont….

 Where the suit is for amount related to immovable property or mesne profits
………which cannot be determined,

 ……. the approximate amount or value thereof

 Cont…

 ……related to immovable property….

 Must state …..boundaries…..of …..
 Description of….survey no……
 If suit……for possession….against…..tenant…
 Date of default…..of non-payment of rent
 ……for recovery of money…..
 In spite of repeated demands & date of default
 Cont…

 If…..suit for money…

 Plaint shall state…..
 Precise amount
 Cont…

 Suit…..damages…..
 ………..breach of contract date
 …for specific performance……
 …. is ready & willing to perform
 Ratio ......

"When neither party puts forth a contention, then court cannot obviously make
out such a case not pleaded, suo moto”.
Case-law

Bachhaj Nahar
Vs.
Nilima Mandal and Anr. 
AIR 2009 SC 1103
 ……filed…

 for declaration......
 possession ....
 and injunction.....
 Facts.....

 ......claimed that the suit property .......purchased by

them under sale deed dated 29.12.1962.
 The reliefs ......
 declarations that
 the plaintiffs are the absolute owners
 the defendants do not have any right, title or interest
or possession
Cont.....

o …..had illegally encroached and started construction in

the suit property

o a direction to ….. to deliver possession of the suit

property

o after demolishing the construction over the same

o a permanent injunction restraining……….
o ……..from interfering with the suit property.
 Def.......

 ....... resisted the suit

 contending that….. purchased the property to the
South of plaintiff's property
 from second defendant under sale deed dated
5.5.1982
 and the suit property actually formed part of his
property.
 …. contended that the plaintiffs had no right, title or
interest in the suit property.
 Issues......

 Is the suit as framed maintainable?

 Have the plaintiffs got any cause of action to file the suit as against these
defendants?

 Is the suit barred by limitation?

 Cont….

 Whether the suit land is part and parcel of land of

the plaintiff purchased through registered …….

 ……..or the suit land in exclusive possession of

after purchase of first defendant.
 Cont……

 ……first defendant encroached any portion of the suit

land?
 …….Whether the plaintiffs got title over the suit land?
 Or were they using the suit land under express
permission?
 To what relief or reliefs, plaintiffs are entitled?
 Trial court …….
  After considering the evidence,

 …….. by judgment and decreed the suit in part.

 It held that the suit property was part of plaintiffs'

property
 and that first defendant had encroached over a part of it
to an extent of 15 sq. ft.
 Cont……

o …..already put up his construction over the encroached portion and was
using it,

o ………instead of directing him to deliver back possession

o he should pay Rs. 100/- as the price of the encroached portion, to the
plaintiffs
 Appellate court……
 Feeling aggrieved, …….the first defendant filed an appeal.
 Plaintiffs filed cross-objections.

 The first appellate court held that the plaintiffs had failed to prove……….


………. therefore allowed the appeal 
Before…..H.C……..

 The High Court……. held that …

 the plaintiffs had failed to make out title to
the suit property.
………held that plaintiffs had made out a case
 for grant of relief based on easementary
right of passage
 Cont….

 in respect of the suit property……… as they had

claimed in the plaint
 …….that they and their vendor had been using
the suit property,

 and the first defendant and witness had admitted

such user. 
 Cont…….

 The High Court observed……

 that if there was any encroachment over the said passage by the first
defendant,
 that will have to be got removed by the "process of law".
 …… issued a permanent injunction restraining the plaintiffs from
encroaching upon the suit property (passage)
 ……till the plaintiffs got a declaration of their title over the suit property by
a competent court
Order…….

 ……..that the case based ….

 ….. issue relating to an easementary right,

 as the evidence available was sufficient to make out easementary right over the suit
property
 Cont….

 therefore ….granted a permanent injunction

 restraining the first defendant

 from interfering with the plaintiffs' use and

enjoyment of the `right of passage' over the suit
property
 Before S.C……..

 The Appellant contends……

 …….that neither in law, nor on facts, the High Court could have granted the
aforesaid reliefs.
 The High Court, in this case…..
 ……in its obvious zeal to cut delay and hardship
 that may ensue by relegating the plaintiff to one more round of litigation
 has rendered a judgment which violates several fundamental rules of civil
procedure
 Cont…

 No amount of evidence can be looked into…..

 ……upon a plea which was never put forward in the pleadings.
 A question which did arise from the pleadings and
 which was not the subject matter of an issue
 cannot be decided by the court.
 A Court cannot make out a case not pleaded.
 SC observation….
 The court should confine its decision to the question raised in
pleadings.

 Nor can it grant a relief which is not claimed and

 which does not flow from the facts and the cause of action
alleged in the plaint.

 A factual issue cannot be raised

 or considered for the first time in a second appeal.

Cont……
 CPC……….

 ………is an elaborate codification of the principles of

natural justice to be applied to civil litigation
 The provisions are so elaborate

 …fulfillment of the procedural requirements of the

Code may itself contribute to delay.
 Cont…….

 But any anxiety to cut the delay or further litigation,

 ……should not be a ground to float the settled fundamental

rules of civil procedure.
 The object and purpose of pleadings and issues

 …….. is to ensure that the litigants come to trial with all issues
clearly defined
 Cont…..

 and to prevent cases being expanded or grounds being shifted during trial.

 object is also to ensure ………

 that each side is fully alive to the questions that are likely to be raised or
considered
 may have an opportunity of placing the relevant evidence appropriate to
the issues before the court for its consideration.
 Cont…..

 …….. the pleadings are meant to give to each side

intimation of the case of the other so that it may be met,
 to enable courts to determine what is really at issue
between the parties,
 and to prevent any deviation from the course which
litigation on particular causes must take.
 Cont…..

 When there is no prayer…….

 for a particular relief

 and no pleadings to support such a relief,

 when defendant has no opportunity to resist or oppose such a relief,

 if the court considers and grants such a relief,

 it will lead to miscarriage of justice.

 Cont…..

 The High Court has ignored the aforesaid principles relating to the object and
necessity of pleadings.
 Even though right of easement was not pleaded or claimed by the plaintiffs,
 only in regard to title and possession
 it made out for the first time in second appeal,
 a case of easement and granted relief based on an easementary right…….
 Cont….

 without pleadings and issues,

 evidence cannot be considered to make out a new case which is
not pleaded.
 Another aspect to be noticed,
 is that the court can consider such a case not specifically
pleaded,
 Where neither party puts forth such a contention, the court
cannot obviously make out such a case not pleaded, suo moto.
 Cont……

 In the absence of a claim by plaintiffs……

 based on an easementary right,
 the first defendant did not have an opportunity to demonstrate that the
plaintiffs had no easementary right.
 In the absence of pleadings and an opportunity to the first defendant to deny
such claim,
 the High Court could not have converted a suit for title into a suit for
enforcement of an easementary right
 Finally…..

 and set aside the judgment and order of the High

Court
 and restore the judgment of the first appellate court
Admission of …….

 Where the court orders…….

 Issued of summons……
 The plaintiff must present summons…….
 Within 7 days……..
 ……along with copies…….
 Return of ……..

 Where there is no
 …territorial or pecuniary ….jurisdiction
 With regard to the subject matter…..
 ….will be returned…….
 …may present ….proper court
 Return…..endorse..

 Date of presentation……………..
 Date of return…………………….
 Name of the party…………….
 Reasons for returning it……
 Return…..endorse..

 Date of presentation……………..
 Date of return…………………….
 Name of the party…………….
 Reasons for returning it……
 Rejection…….
o ….barred by time
o Fails to pay ……court fee ….within time
o Does not disclose the cause of action
o Relief claimed under valued….
o Where plff... fails to comply the provisions of Rule.9……
o Non-compliance with statutory provisions…
 Cont….

 If the plaint not signed by plaintiff….

 Defect not cured within time….

 ….suit is vexatious & meritless

 Reasons must be recorded for rejection

 Rejected plaint….
Case-law

National Textile Corporation Ltd

Vs
Naresh Kumar Badrikumar Jagad
AIR 2012 SC 264
 Ratio.....

 No relief can be granted by the courts, if not found in pleadings

 Pleadings and particulars are necessary to enable the court to decide the rights
of the parties in trail.
 Pleadings are more help to the court in narrowing the controversy involved
 To inform the parties concerned to the question in issue
 So that the parties may adduce appropriate evidence on the said issue
Case – Law

Charanlal Sahu
Vs
Giani Zail Singh
AIR 1984 SC 309
 Cont…

 A party cannot be allowed to keep his options open until the trial & adduce
 Such evidence as seems convenient & handy
 Cont…

 By way of amendment only

 ……party can rise any ground of claim
 ……or contain any allegation of fact inconsistent with his previous
pleadings
 A court may allow amendment of pleadings
 A court may striking out pleadings if it is unnecessary…….
 Case??????

Nandkishore Lalbhai Mehta

v.
New Era Fabrics Pvt. Ltd. & Ors.,
2015 (7) SCALE 665.
 Other rules of pleadings(or.6 R.4-18)

 If the pleadings to related……… to fraud,

misrepresentation,

 breach of trust, willful default or undue influence

particulars …….

 dates & items should be stated

 Cont…

 Performance of condition precedent – need not to be pleaded –

 non-performance of condition precedent – must be specifically & expressly

pleaded
 Pleadings in writ

 ……should not only state material facts

 but also the evidence in support

 proof of such facts

 by annexing necessary orders & documents

 Or. VI R. 16

 The court is empowered ……

 ………to strike out any pleadings
 …..if it is unnecessary,
 scandalous,
 frivolous or vexatious
 Cont….

 ………..or tends to prejudice, embarrass

 or delay fair trial of the suit

 or is otherwise an abuse of the process of the

court
 Case – Law

Santhi Vijay Kumar

Vs
Tota Singh
(2006) 13 SCC 353
 Supreme court observed that bare reading of or.6
R.16 makes it clear that a court may order striking of
pleadings
 Cont…

o Where such pleadings is unnecessary……

o …….Tends to prejudice, embarrass or delay of fair trial of
the suit
o An abuse of the process of the court
o It cannot be over-looked that normally a court cannot
direct parties as to how they should prepare their pleadings
 Cont…

 The power to strike out pleadings is extraordinary in nature

 ……and must be exercised by the court sparingly
 ……and with extreme caution & circumspection
AMENDMENT OF PLEADINGS
??????????

Legal
provision
 Means…

 A small change…

 Improvement made to ……document

 …..is basically for the purpose

 bringing about final adjudication in a suit

 to avoid multiplicity of proceedings.

Amendment of …….

 Order. VI Rule.17 …….

 The court may at any stage……
 ……… of the proceedings
 ………..allow either party
 to alter or amend his pleadings in such manner
and on such terms as may be just
 Cont…

 And all such amendments shall be made as may

be …………
 necessary for the purpose of

 determining the real questions

 in controversy between the parties

 Cont…

 No application for amendment shall be allowed

after the trail has commenced
 Unless the courts come to the conclusion that in
spite of due diligence…
 …the party could not have raised the matter
before the commencement of trial
 Object of Amendment

 The object of the rule……

  It is in the interest of justice that a suit shall be
decided on all points of controversy 
 …….. is that the courts should try the merits of the
cases
 …….. that come before them & should
consequently allow all amendments
 Cont…

 ………. that may be necessary for determining

the real question in controversy between the
parties
 ………… provided it doesn’t cause injustice or
prejudice to the other side
 Order 6 Rule 17…….

 ……consists of two parts.

 ………Whereas the first part is discretionary (may)
and leaves it to the court to order amendment of
pleading.
 ……….. The second part is imperative (shall) and
enjoins the court to allow all amendments which are
necessary for the purpose of determining the real
question in controversy between the parties."  -
Guidelines……
 Cause of action in a suit cannot be altered by
amendment of pleadings
 allowed to bring or to clarify all matter in
issue before the Court
  ……relief also can be amended
 Andhra Bank Vs. ABN Amro Bank N.V. & Ors
AIR 2007 SC 2511

 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-à-vis maintainability of the
suit,
 but can consider only whether the amendment is
necessary to determine the real controversy between the
parties
Salem Bar Association Case
 It was held by the Hon'ble Supreme Court
 that by the 2002 Amendment,
 which added the Proviso to Order VI Rule 17,
 the burden of proof has been shifted upon the applicant who makes the
application for amendment
 after the trail has commenced,
 to prove that despite due diligence he could not have raised
the issue before the commencement of trail.
 This is for the purpose of preventing frivolous application to delay the
proceedings.
Order VI Rule 18…..
 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 the amendment after the
expiration of time limited, unless the time is further extended by
the Court
Delhi Development Authority Vs. S.S. Aggarwal and Ors.
AIR 2011 SC 3265
Case-law

Revateeju builders&Developers
Vs
Narayanaswamy & sons
(2009)10 SCC 814
Plff…..filed……

 ……… for recovery of Rs. 52,97,111/- with interest at the rate of 18% per
annum from the date of filing of suit till payment.
 …… alternatively had taken the plea that if the court for any reason comes
to the conclusion that a decree for a sum of Rs. 52,97,111/- cannot be passed
as prayed by the appellant against respondents
 then the court may at least pass a decree for Rs. 19,12,500/- with interest at
the rate of 18% from the date of suit till the date of realization ……
 Cont…

 claimed that it be declared absolute owner of the

scheduled property
 on the basis of the sale deed dated 30.9.1987.
 The sale deed was executed by the respondents
 after obtaining permission from
 the State of Karnataka under the provisions of the
Urban Land (Ceiling & Regulation) Act, 1976.
 during…….suit…….

 A petition in public interest was filed by one S.

Vasudeva
 ………challenging the aforementioned transfer of
land.
 ……… in those proceedings
 held that the sale deed executed by the respondent
in favour of the appellant on 30.9.1987 is
held…… invalid and inoperative.
 cont ….

 It may be pertinent to mention that

 ……..after the institution of the suit, the Urban

Land (Ceiling and Regulation) Act, 1976

 …… has been repealed.

Cont…..

o ………after the Act has been repealed……

o the appellant filed an application under Order VI
Rule 17
o …….seeking leave of the trial court to add few
prayers
o and to delete certain paragraphs in the plaint and
also to delete the prayer
 PRAYED……

 to declare that ………the defendants are trespassers

 …… mandatory injunction directing the defendants to

vacate and deliver to the plaintiff,

 ………vacant and peaceful possession of the building
within 30 days; and

 to issue a permanent injunction restraining the defendants

Cont…..

 The trial court…….allowed application for amendment

filed under Order VI Rule 17 CPC.

 The respondents aggrieved by the said order

 ……. Preferred…… writ petition

 ground that the amendment as sought and granted has

changed the entire nature of the suit and cause of action.
 Cont…

 ……… also submitted that

 the fact of allowing amendment would be taking

away admissions in the plaint by the appellant

 and such an amendment cannot be permitted by any

court of law
Before H.C….
 The respondents submitted........
 ....... the original suit was instituted for recovery of Rs. 52,97,111/-.
 Alternatively, .... Declare......... absolute owner
 based on the basis of sale deed dated 30.9.1987
 and direct the respondents to deliver vacant possession of the plaint
schedule property.
 .... that means......the respondents are in possession of the entire suit
property.
Cont…

 by virtue of the amendment........

 .........the appellant is trying to contend

 ...... that the respondents are to be treated as

trespassers

 ...... and unauthorized occupants of the building

in question
 Cont…

 ..........trying to introduce a new case

 ……..which would certainly affect the rights of the

respondents
 when the appellant had earlier requested the court to
pass a decree
 ….for possession of the entire property.
 Order of HC….

 .........conclusion....... that the appellant while

seeking permission to amend the plaint is trying to
introduce a new case
 which was not his case in the original plaint and

 proposed amendment if allowed would certainly

affect the rights of the respondents adversely.
 Cont….

 In the impugned judgment,

 ……..High Court also held that
 …….the appellant cannot be permitted to
withdraw the admissions made in the plaint
 ……….as it would affect the rights of the
respondents.
Cont......
 further ….held that any such amendment.......
  which changes the entire character of the plaint cannot
be permitted ........
 ........ set aside the order of the trial court which allowed
the amendment under Order VI Rule 17 CPC.
 Being aggrieved by the impugned judgment,
 Preferred an appeal.......
 Supreme Court......

  ..........was only for refund of sale consideration

and alternatively for possession.

 ........ also submitted that the relief for possession

was always there

 although it was in respect of the entire land which

is sought to be amended
Cont...

 ........ that the amendment is necessary to elucidate the

real points in controversy.

  ......the amendment ......will not cause any prejudice

 Cont...

 ..... stand taken up by the respondents is totally

dishonest, wrong and not bona fide.
 .........that the court should be liberal in
allowing amendments
 and the respondents be compensated by costs.
 Res......

 The original plaint expressly so avers and relies

 .......on Section 65 of the Contract Act

 ....clearly admitting that the sale deed has become

void.
 This admission is now sought to be got rid off and
the sale deed is sought to be asserted as valid.
 Cont.....

 It was submitted that the appellant cannot, therefore, seek

any amendment of the plaint

 relying on the circumstances as to the earlier decision

having been overruled by seeking amendment of the plaint.

 This has the effect of changing the character of the suit

and also omitting an admission made
 Cont…

 Respondents filed written statement to the original plaint.

 They prayed the court to pass a decree in favour of the

appellant for a sum of Rs. 27,30,339.45/.

 This is an admission of the respondents in favour of the

appellant to an extent of Rs. 27,30,339.45/-.

 The appellant now cannot be permitted to take a complete

somersault.
 All rules of court…..

 …….intended to secure the proper administration of

justice,

 and it is therefore essential that they should be made to

serve and be subordinate to that purpose,

 so that full powers of amendment must be enjoyed and

should always be liberally exercised
 Cont….

 but nonetheless no power has yet been given to

 enable one distinct cause of action to be substituted for

another,
 nor to change,

 by means of amendment, the subject-matter of the suit.

Cont....

 The first condition

 which must be satisfied before the amendment can be
allowed by the court is
 whether such amendment is necessary for the
determination of the real question in controversy.
 If that condition is not satisfied, the amendment
cannot be allowed.
 This is the basic test which should govern the courts'
discretion in grant or refusal of the amendment.
 Cont….

 The other important condition

 which should govern the discretion of the Court is
the potentiality of prejudice or injustice which is
likely to be caused to other side. 
 Cont….

 whether the amendment sought is imperative for

proper and effective adjudication of the case;
 whether the application for amendment is bona
fide or mala fide;
 the amendment should not cause such prejudice
to the other side which cannot be compensated
adequately in terms of money
 Cont…..

 refusing amendment would in fact lead to

injustice or lead to multiple litigation;
 whether the proposed amendment
constitutionally or fundamentally changes the
nature and character of the case; and 
 as a general rule, the court should decline
amendments if a fresh suit on the amended
claims would be barred by limitation on the date
of application.
 Other…..

 These are some of the important factors

 which may be kept in mind
 while dealing with application filed under Order 6
Rule 17.
 These are only illustrative and not exhaustive." 
 Cont…
 ………very serious judicial exercise and the said
exercise should never be undertaken in a casual manner.

 while deciding applications for amendments

 the courts must not refuse bona fide, legitimate, honest

and necessary amendments

 and should never permit mala fide, worthless and/or

dishonest amendments
 Finally....

 apply these parameters to the present case,

 then the application for amendment deserves to be dismissed
 with costs of Rs. 1,00,000/-
 because the respondents were compelled to oppose the amendment
application before different Courts.
 This appeal being devoid of any merit is accordingly dismissed with costs.
work
Rachappa
vs.
Gurydiddappa
AIR 1989 SC 635
Venture Global Engineering
Vs
Satyam Computer Services
AIR 2010 SC 3371
Written statement
What is.....?

 Term of specific connotation........

 Ordinarily signifying...

 Reply to the plaint......

 Simply.....

 .....pleading of defendant
Cont...

 ...must deals with....every material fact

 ....alleged by the Plaintiff

 .....state new facts

 ......takes legal objects against the claim of plaintiff

If ....more...one .....def

 All defendants .....should sign on the written statement

 ......filed by one defendant....

 Does not bind ...on the other.....defs

 After receipt of ss.....

 ......w/s .....filed in 30 days....

 It may be extended.....90......

 Order VIII of code........

Before………

 ....... 1976 Amendment

 The defendant may,

 and if so required by the court,

 shall at or before the first hearing or

 within such time as the court may permit,

 present a written statement of his defence.

After.....

 As a result of the 1976 Amendment,

 Rule 1 of Order VIII of the Code
 The defendant shall,
 at or before the first hearing or within such time as the
court may permit,
 present a written statement of his defence
 2002 Amendment.....

 The defendant shall,

 …………within thirty days from the date of service of summons on him,
 present a written statement of his defence
Cont....

 General rules of Or. VI......will apply

 ....may take number of defenses...

 ......must be maintainable at law.....not embarrassing

 .....the allegation ...not admitted.....

 Should be specifically denied.....

 ......Should not....be vague / evasive

Fails...to file W/S....

 Upon proof of .......plaintiff

 Court may pronounce.......Judgment

 If.......relies.....upon....Set-off defence

 .......should be separately......stated

 ....also bound to produce.....all documents

 .....meaning of set-off......?????
Set-off....

 ...claim set up another....

 .....where there are mutual debts....
 One debt .....settled against the other
 Reciprocal acquittal of debts between two persons
 Plea of defence.......available.....
 By set off......wipes out or reduces the claim of
defendant
Condition....

 Suit must be recovery of money...

 Money must be ascertained...

 Sum must be legally recoverable

 .....must....by defendant from plff

 Should not exceed...pecuniary jurisdiction

May classified.......

Set off

Equitable set
Legal set off
off
Legal.....................Equitable

 Sum must be ascertained  May even be for unascertained

 Claimed as a matter of right money
 Matter of discretion of court
 Claim need not be originated from
same transaction  Must have arisen out of same
transaction
 Legally recoverable
 Fiduciary relationship may be
allowed
 ??????????

 Whether the limit of ninety days prescribed u/or 8

R.1 for filing w/s mandatory or merely directory?
Case-Law

Kailash vs Nanhku
AIR 2005 SC 2441
 Facts....

 .....Elections of Uttar Pradesh Legislative Council were held

pursuant to the Presidential notification dated 7.11.2003.
 The appellant was declared elected.

 Respondent filed an election petition

 under Section 80 of the Representation of the People Act,

1951
 Cont...

 ........laying challenge to the election of the appellant.

 ........ was served with the summons, .....accompanied by a
copy
 ...........requiring his appearance before the Court on 6.4.2004.
 ..........On the appointed day,
 the appellant appeared through his counsel
 and sought for one month's time ....
 ............for filing the written statement
Cont...

o ........ allowed time till 13.5.2004 for filing w/s.....

o On 13.5.2004, .... again filed an application seeking further time
for filing .........

o ........on the ground that copies of several documents were

required to be obtained.
o The Court adjourned the hearing to 3.7.2004

o in between, from 13.5.2004 to 2.7.2004,

o .......The high Court was closed for summer vacation.

 Cont....

 On 22.6.2004, appellant's advocate's nephew expired.

 However, the written statement was drafted and kept ready

for filing.
 The registered clerk of the advocate was deputed for filing
the same in the Court on the appointed day.
 .......on account of lack of understanding on the part of the
registered clerk,
 the written statement could not be filed on 3.7.2004
 Cont......

 .....but the same was filed on 8.7.2004 .....along with

application for Condonation of delay .....

 .......On 23.8.2004, the High Court rejected the application

 .........filed by the appellant and refused to take the written

statement on record
 .........for the reason that the same was filed beyond a
period of 90 days from the date of service of summons
Cont....

 Feeling aggrieved by the said order,

 the winning candidate ........ before ........, S.C......
 has filed this appeal

Issue......

 Whether the time limit of 90 days as prescribed by the Proviso

appended to Rule 1 of Order VIII of the CPC is mandatory or
directory in nature?
 Written statement.......

 The defendant shall,

 within thirty days from the date of service of summons on him
 .......present a written statement of his defence
 Provided that where the defendant fails to file the written
statement within the said period of thirty days,
 he shall be allowed to file the same on such other day, as may be
specified by the Court,
 for reasons to be recorded in writing, but which shall not be later
than ninety days from the date of service of summons."
 The provision....

 .....does not deal with the power of the court

 and also does not specifically take away the power of the court
 to take the written statement on record
 Though.. filed beyond the time as provided for...
 ....the nature of the provision contained in Order VIII, Rule 1 is
procedural.
 .......It is not a part of the substantive law
 Cont...
 the object behind substituting Order VIII, Rule 1
 ....... in the present shape is to curb the mischief of unscrupulous
defendants
 .......adopting dilatory tactics,
 ........delaying the disposal of cases
 much to the chagrin of the plaintiffs .......
 .......approaching the court for quick relief and
 also to the serious inconvenience of the court faced with frequent
prayers for adjournments.
The object....
 ....is to expedite the hearing and not to scuttle the same.
 The process of justice may be speeded up and hurried
 ......but the fairness which is a basic element of justice cannot be
permitted to be buried
 .....Considering the object and purpose behind enacting Rule 1 of
Order VIII in the present form and the context in which the
provision is placed,
 ...... opinion that the provision has to be construed as directory
and not mandatory.
 Cont....

 Ordinarily, the time schedule prescribed by Order VIII, Rule

1 has to be honoured.
 The defendant should be vigilant.....
 The extension of time sought for by the defendant from the
court whether within 30 days or 90 days,
 should not be granted just as a matter of routine
 Cont.....

 ......when the period of 90 days has expired.

 The extension can be only by way of an exception

 ......and for reasons assigned by the defendant

 and also recorded in writing by the Court to its satisfaction.

 Cont.....

 The extension of time shall be

 .........only by way of exception ...and for reasons to be
recorded in writing
 The court may impose costs for dual purpose

 i) to deter the defendant from seeking any extension of time

just for asking and
 (ii) to compensate the plaintiff for the delay and
inconvenience caused to him.
 Cont....

 ...... hold that Order VIII Rule 1,

 though couched in mandatory form,
 ......is directory being a provision in the domain of
processual law.
 The purpose of providing the time schedule for
 ........ is to expedite and not to scuttle the hearing.
 Cont........

 The provision spells out a disability on the defendant.

 It does not impose an embargo on the power of the Court to
extend the time.
 Though, the language of the proviso to Rule 1 of Order VIII of
the CPC is couched in negative form,
 it does not specify any penal consequences flowing from the
non- compliance.
 Cont.....

 The provision being in the domain of the Procedural Law,

 it has to be held directory and not mandatory.
 The power of the Court
 to extend time for filing the written statement
 beyond the time schedule
 provided by Order VIII, Rule 1 of the CPC is not
completely taken away
 Finally......

 Extension of time may be allowed

 if it was needed to be given for the circumstances which are
exceptional,
 occasioned by reasons beyond the control of the defendant
 and grave injustice would be occasioned if the time was not
extended
 written statement shall now be taken on record
 but subject to payment of Rs.5000/- by way of costs payable by
the appellant herein to respondent
 ...Appeal allowed
work

RN Jadi v Subhash Chandra

AIR 2007 SC 2571
ISSUES
What is......?

 Back bone of suit

 Means.....point in question

 ......subject of debate

 ....disagreement....discussion, argument or litigation

Cont.....
 When one party affirms

 ...& other party denies

 ..a material proposition of fact or law..

 Then only issue arise....

 ...are crux of the matter

Order.14 Rule 1......

 Framing of issues.......
 ...scope of the trail is determined...
 The correct decision of civil lis.......
 Depends on.......
 Correct framing of .......
 The real points in controversy .....should be correctly
determined
 ?????

 Whether the Court can adjourn the framing of issues?

 If yes ! Is there any statutory time limit for the same ?
 Yes! Court can adjourn but not more than 7 days CPC
 When issues not necessary?

 Rule 1(6) Order XIV –

 When defendant at first hearing makes no defense no issues shall be framed. 
 Issues need not be framed when there is no dispute with regard to material
averments in the plaint
 Rule 5 empowers the court to amend issues and frame additional issues at any
stage of the case.
 TWO KINDS

Issue of • Pleadings& Documents

Fact • No power...preliminary...

Issue of • Jurisdiction, cause of action.

Limitation
Law • Can frame preliminary ......
 essentials......

 Issue.....must be framed...not pleading.....

 Court cannot refused to decide the point
 .....which an issue ....framed
 ....should not frame an issue
 Which does not arise in pleadings
 ...must be confined to material questions of fact or
law
 Cont.....

 One issue.....one fact / law.....

 If the case.....goes to appeal...
 Appellate court.....dealt on the issues settled by the trail
court ...
 Duty of the frame proper issues....
 Rests primarily on the court ......
 ....should be specific & proper
 Court may......

 .....frame addl. issues / amend issues

 ....strike out issues........
 Omission:
 Even though it is the duty of the court to frame proper issues
 Mere omission to frame
an issue is not necessarily fatal to the suit.
 Omission to frame an issue is an irregularity which may or
may not be a material one
 Cont....
 If such omission affects the disposal of the suit
 must be remanded to the trial court for a fresh trial.
 On the other hand,
 if the parties went to the trial with full knowledge
that a particular point was at issue,
 they have not been prejudiced and substantial justice
has been done,
 absence of an issue is not fatal to the case so as to
vitiate the proceedings
 Disposed.....

 Parties are not at issue......disposed

 Def. Admits claim.......
 Def. Failed to produce evidence.....
 If court satisfied with framed issues....
 Case-law

Sopan Sukhdeo Sable and Ors.

Vs
 Assistant Charity Commissioner and Ors.
AIR 2004 SC1801
 Claim……plff…..

o ………. to be tenants under respondent No. 2. Shaneshwar

Deosthan Trust.
o ......Its trustees and the Assistant Charity Commissioner were the
other defendants.
o Plaintiffs claimed that they were tenants of the trust of which the
defendants Nos. 3 to 13 were the trustees.
o Alleging that they have been forcibly evicted notwithstanding
continuance of the tenancy,
 .... filed ......for reliefs

 ......declared as the tenants of the properties...... belonging to

temple Trust,
 .........permanently restrained by an order of injunction
 ..........not to evict forcibly with the help of police
 and also not to interfere in their business being carried on by
them in suit shops,
 and not to interfere in the possession of suit shops in any
manner-whatsoever  
 Cont.....

 Defendant No. 1 be directed to enquire into the illegal acts,

committed by other defendants
 and issue appropriate direction to that effect.

 What is the plea of .......Trust?

 There was no forcible dispossession as claimed

 Cont....

 An application was filed by the trust

 .......raising a preliminary plea
 ....... plaint is liable to be rejected under Order VII Rule 11 of
the Code.
 Acc to ...... Section 80 of the Bombay Public Trusts Act, 1950
 Cont...

 it was urged that

 .........no Civil court had jurisdiction
 to decide or deal with any question
 which by or under the Act is to be decided or dealt
with by any officer or authority under the Act
 and in respect of which the decision or order of such
officer of authority has been made final and conclusive.
 Trial Judge......

 ...... framed two preliminary issues

 whether the suit was liable to be rejected for want of
cause of action?
 whether the suit was enable against all the defendants
Finding....
 ....... in respect of the preliminary issues were recorded
against the plaintiffs.
 ............the plaint does not disclose any cause of action
 the jurisdiction vests only with the District Court to give
direction to Commissioner
 and in any event Section 80 of the Act took away jurisdiction
of the Civil Court and the plaint was rejected. 
 Challenging......

 .........the judgment and decree

 .............an appeal was preferred before the District court

 The appeal dismissed & trial court order confirmed

 The matter was carried in Second Appeal

 ......... before the High Court which by the impugned judgment upheld
the findings recorded by the Courts below
 Before... Supreme Court....

 .......... it was contended by the appellants that

Sections 50, 51 and 80 of the Act
 .......had no application
 and the lease being for 11 years
 ...........the action of the trust in dispossessing the plaintiffs
forcibly cannot have the approval of law.

 The stand of the trust was to the effect that the plaintiffs have
not approached the Court with clean hands.
 Order VII Rule 11: Rejection of plaint.......

 where it does not disclose a cause of action:

 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:
 where the relief claims 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:
 Cont....

 where the suit appears from the statement in the

plaint to be barred by any law
 where it is not filed in duplicate
 where the plaintiff fails to comply with the
provisions of Rule 9.
 The real object......

 ......Order VII Rule 11 of the Code

 ....... to keep out of courts irresponsible law suits.
 Therefore, the Order X of the Code is a tool in the hands of the
Courts by resorting to which and by searching examination of the
party
 in case the Court is prima facie of the view that the suit is an
abuse of the process of the court
 in the sense that it is a bogus and irresponsible litigation,
 the jurisdiction under Order VII Rule 11 of the Code can be
exercised.
 Contention of Res..

 The plaint......... clearly overlooks the basic distinction

between statements of the facts disclosing cause of
action
 and the reliefs sought for.
 The reliefs claimed do not constitute the cause of action.
 This is a matter which can be considered in the trial
itself so far as it is relevant.  
 Cont.....

 .....further submitted.....
 in any event the District Court was the only Court
having jurisdiction
 and not the Court where the suit was filed.
 This aspect does not appear to have been specifically
urged before the Courts below
 Order of SC.....

 The question of forcible possession as claimed is also a matter

 which can be pressed into service by the parties before the trial Court
 and if raised the Court shall
 deal with it considering its relevance to the suit and accept it
 or otherwise reject the plea in accordance with law.

 Looking into the nature of dispute ......

 Finally….

 it would be appropriate...
 if the trial Court makes an effort to complete the trial within
six months
 .... from the date of the judgment.
 The parties are directed to cooperate for disposal of the suit
early within the stipulated time.
 The appeal is allowed to the extent indicated without any
order as to costs.
 Makhan Lal Bangal Vs. Manas
Bhunia (AIR 2001 SC490)-

 Framing of issue is an important stage

 at which scope of the trial is determined by laying the path on which the trial
shall proceed.
 The duty of framing proper issue rests with the judge himself,
 however the parties and their counsels are bound to assist the court in process
of framing issues
***********