2nd January 2017

Law is made up of two parts:

1. Substantive Law.
2. Procedural Law.

Both are required to ensure true justice.

Language used to convey the pleading is drafting.

Drafting under different laws is has a different format and its peculiar to
that law.

No contradiction in pleadings.

3rd January 2017

History of pleading

Henry II started pleadings on parchment roll.

Pleadings on paper started by Edward IV.
Strict rules were there regarding writing the pleadings.
Henry II: Narrator used to narrate stories to judges.
India has adversarial system.
Pleadings and statements in writing.

Halsbury law of England

A pleading is used in cases to denote a document in which a party to a

proceeding in a court of first instance is required by law to formulate his
writing in the case. It includes any petition or summon and statements in
writing of the claim or demand of any plaintiff, and of the defence of any
defendant thereto and of the reply to the plaintiff to any counter claim of
a defendant.

Bullen and Leake

Pleadings are the printed or written statements made by and delivered

between the parties to an action setting forth in a summary form, the
material facts on which they respectively reply in support of their claim or
defence.

Mogha

Pleadings are statements in writing, drawn-up and filed by each party to a

case stating what their contention will be at the trial and giving all such
details as his opponents need to know in order to prepare his case in
answer.

6th January 2017

Order 6 Rule 1

Order 10 Rule 1

Functions and Objectives

Throp v. Wholsworth (1873)

The whole object of pleadings is to bring two parties to an issue and the
rule of pleadings was to prevent the issue being aggravated. We should
prevent either party from knowing when the case comes up for trial, what
the real bones of contention are. Thus, the whole meaning of the system
is to narrow the parties to definite issues and thereby to diminish the
expenses and delay, especially as regards to the amount of testimony
required on either sides of pleadings.

1. Definite issues.
2. Bones of contention precisely.

Cases

1. JK Iron and Steel Co. v. Majdoor Union (AIR 1956 SC 231)

2. Ganesh Trading Co. v. Manjuram (AIR 1978 SC 484)

Function of pleading

1. To bring the parties under definite issues

 The function of pleading is to ascertain with precision the matters on
which parties differ and the points to which they agree. To ascertain the
real dispute between the parties and to narrow the area of conflict and
to see where the two sides differ.

Objection cannot be raised merely on the ground of particular terms not

being used if the object is being achieved.

2. To prevent surprise and miscarriage of justice: Parties should

state their case with utmost clarity so that the other party can prepare
itself accordingly.

Cases

i. Ladli Prasad v. Karnal Distillery Co. (AIR 1963 SC 1279)

The object of pleading is to give the other party a notice as to what
the case is so that they may know before the trial what the real
dispute and issues are.
ii. Mohan Lal v. Anandi Bai (AIR 1971 SC 2177)
SC held that if the parties are not allowed to meet their opponents
case there would be miscarriage of justice.

3. To save time and money. A lot of time and money is wasted when
the discussion is vague.
4. To assist the court Pleadings assist the court in narrowing the
controversy involved.

9th January 2017

How do pleadings assist the court?

A defined and clear case is presented before the court by pleadings.

Cases

1. Ganesh Trading co. v. Manji Ram (AIR 1978 SC 487)

 It was observed that the provisions related to pleadings are meant
to prevent deviation from the courts which litigation on a particular
cause of action must take.

2. Prafulla Dev v. Sham Lal (1932 Lahore HC)

In another case it was held that CPC is designed as a trap which a
litigant must try to avoid by all means but is not defined to enable
the court to ascertain the real position of issues between the parties
and come to a speedy and clear determination of those points.

3. Raj Narain v. Indira Gandhi (AIR 1972 SC 1302)

Supreme Court held that the rules of pleading are intended as aids
for arriving at a just decision.

Bullen & Leake

Object of pleading is to define the issue of fact and questions of law to be

decided between the parties.

The principle object of pleading is to give each of the parties a distinct

notice of case intended to be setup by the other and then to prevent
either party from being taken by surprise at the trial. Also, to provide a
brief summary of the case of each party which is readily available for
reference and from which the nature of the claim and defence may be
easily apprehended and constitute a permanent record of the questions
raised in action and of issue decided therein so as to prevent future
litigation upon matter already adjudicated between the litigants.

Sheetla Bux v. Gopal Singh

A plaintiff who is purposely vague in hopes of his case being

misunderstood by the court in his favour or to be clearly examined and
tied down to definite pleading.

Rules of Pleading (Order 6 Rule 2 of CPC)

Pleadings have to be pleaded in accordance with rules and form.

(Appendix A)
 1. Fundamental Rules
2. Particular Rules

Fundamental Rules:

There has to be a proper balance.

Pleadings must state fact not law.
Only material facts and all of them.
Facts not evident.
Must be concise and precise.

Balance between affirmative and negative side of pleadings.

13th January 2017

Courts are bound to take judicial notice of the pleadings of the parties.

Rule 1: Only facts must be present in pleading. No law or any inference

therefrom. Courts are bound to apply the law.

If party is not pleading any law or stating wrong law, courts are bound to
apply the correct law on the issue.

Case 1: Defendant was negligent in supplying her a bottle of cold drink

that had remains of a dead snail. Negligence: Lack of due care.

Q. What were the duties of defendant towards the plaintiff and how was it
breached?

Case 2: Plaintiff wanted to contract previously entered into, to be

declared as void and he claimed his money back. Practice of courts has
been to consider and deal with the legal result of pleading facts, though
the fact that there was a mistake in contract was not stated.

Case 3: Plaint was that the road was a public road ever since the village
came into existence and villagers have been using it eversince.
Case 4: It is not sufficient that plaintiff alleges his legal heir-ship with the
heir, for claiming the property. He has to specify his relationship with the
person.

Case 5: If the plaintiff has not stated relevant sections then it is not
necessary that such pleadings will be construed to be vitiated.

If prima facie, the suit is not maintainable, it is not necessary to

prove the same.
Plaintiff has to state the facts that determine his rights and
defendants duties (vice versa with defendant)
On grounds of defamation it is not sufficient that was done on
privileged communication. The facts and circumstances have to be
stated.
Pleadings may not be rendered defective for continuing legal
conclusions, in addition to facts material to the case. If a party
asserts a legal conclusion without stating the facts from which the
legal conclusions is drawn then the pleadings are bad.

Exceptions

1. Foreign Law: Pleading has to be done as a fact if reliance is on

foreign law.
2. Custom: If a custom has been brought to the courts notice and has
been recognized by them regularly in a series of cases, it attains the
force of law. Need not be pleaded in every case individually.
3. Mixed question of law and fact: has to be pleaded as a fact
because later it wont be pleaded as facts.
4. Legal pleas are excluded from this rule. Any plea denying the legal
right claimed by the opposite party has to be specifically pleaded.
For eg: This suit is barred by limitation. OR This suit is barred by Res
Judicata.
5. Only for the sake of clarity of facts should the law be pleaded.

14th January 2017

Legal Pleas
Legal pleas are excluded from the rule, which says law should not be
pleaded.

Any plea denying the legal right claimed by the opposite party has to be
specifically pleaded. For eg: This suit is barred by limitation. OR This suit is
barred by Res Judicata.

Inferences of law

Inferences of law should not be stated in the plaint. But when there is a
need to make the facts more comprehensive then it has to be pleaded.

For eg: Gift under property law. If the donor pleads that gift was not
accepted by the done before his death and is therefore void, then it would
be permissible.

Material Fact

When we analyse Rule 2(b) there are three rules.

1- State the material facts only.

2- All material facts which have a bearing to the case must be stated.
3- All those facts which are not material at the time of action should
not be pleaded.

Any unnecessary detail must be avoided.

What is material fact?

They are those facts which have to be alleged in order to show a right to
sue in case of plaintiff and in case of defendant they are all those facts
which must be alleged to constitute a proper defence.

Material facts are all facts upon which a plaintiffs cause of action or the
defendants defence depends.

All facts which they must prove or fail.

In case of Udhav Singh v. IMR Scindia, Supreme Court observed that all
primary facts which must be proved at the time of trial by a party to
establish the existence of a cause of action or its defence are material
facts.

SN Balakrishna v George Fernandes (AIR 1969 SC 1201)

The word material shows that the facts necessary to formulate a complete
cause of action has to be stated in pleadings.

16th January 2017

For determination of material facts, there isn't any test. It is decided on a

case-to-case basis.

Whether a party can succeed without proving a particular fact?

Yes. Then immaterial fact.

No. Then material fact.

Thus, eliminate all those facts without proof of which one cannot win.
Particulars must be given with every material fact.

SN Balakrishna v George Fernandes.

There may be some overlapping between material facts and particulars

but the two are quite distinct.

Raj Narayan v Indira Gandhi

Material facts are statements of the facts necessary to formulate a

complete cause of action. The function of the particular is to present as
full a picture of cause of action as to make the opposite party understand
the case he will have to beat.

Udhav Singh v MR Scindia

All those facts, which are essential to clothe the petitioner with the
complete cause of action, are material facts.
Particulars on the other hand are the details of the case setup by the
party. They serve the purpose of giving final changes to the basic contours
of a picture already drawn to make it full, more detailed and informative.

Omission of the material facts: Party should not be allowed to raise

any contention on a particular point even if material evidence to that end
is present.

Material facts pleaded but omission of particulars has happened:

Court may permit the points to be raised based on the evidence available
unless thereby the opposite party is materially prejudiced.

In SN Balakrishna case it was said that omission of a single material fact

leads to an incomplete cause of action and the statement of claim
becomes bad. Therefore, no cause of action arises.

Eg: A suit on a promissory note to be paid at a certain place. Plaint

contains no allegation of presentment, that is, plaintiff should not be given
any opportunity of proving presentment.

S. Chatterjee v. Neelma (Calcutta HC)

Suit of divorce on the ground of adultery. In the plaint it was stated that,
"One B discovered plaintiffs wife and One N in a room bolted from inside."
But in evidence it was shown that B opened the door of the room locked
from outside and discovered plaintiffs wife and N in that room.

Thus, court refused to any weight to a fact, which was not raised in the
pleading and held it to be a cooked story.

In the averments, lack of material facts in the arguments in the plaint is

sufficient to dismiss the suit as non-disclosing a cause of action.

17th January 2017

Material at the time of presentation of plaint.

Exceptions of rule 2

1. Condition precedent
If there are any conditions for performance then it's not necessary
to plead those as they are implied. But if the other side desires to
contest the performance or occurrence of such condition then it
must be raised specifically and distinctly. As per rule 6 of order 6.
For eg: (...) certificate issued by Y's architect. X wants to file a suit
against Y. Obtaining that certificate is condition precedent for X. He
doesn't have to state that he has obtained the certificate. It's
implied. Y shall plead that architect has not certified that the
payment is due.
2. Presumption of law
As per rule 13 of order 6, neither party may plead any allegation of
fact which the law presumes in his favour Or as to which the burden
of proof lies on the other side. Unless the same has been specifically
denied. Sethani v Bhana (AIR 1993 SC 956) Sethani was a tribal
woman and executed a sale deed. She was old illiterate and blind.
Sale deed was executed in the favour of one of her relatives with
whom she lived till death. Sale deed was challenged. Court held that
it was the burden on that relative to prove that the sale deed was
executed without any undue influence.
3. Matters of inducement
Sometimes it's important to commence a plaint with some
introductory statements like who are the parties, what business do
they carry on, what's their relation and connection to the case, etc.
These facts are not essential to the cause of action. But these are
called the matters of inducement and are allowed. However, such
statements must be reduced to a minimum.

3rd Rule of pleading. (State the facts, not evidence)

Order 6 Rule 2.
Williams v Wilcox (1838)

A party need not set out the evidence whereby he proposes to prove the
facts relied upon by him.

Philips v Philips (1878)

It is absolutely essential that the pleading is not embarrassing to the

opposite party. Only those facts should be stated which will put him on his
guard and tell him what he will have to meet when the case comes for
trial.

If evidence is allowed in case of pleading there won't be a limit to the

details. Main object of pleading would disappear.

Rattilal v Raghu (1952)

Material facts are those facts which a plaintiff must alleged in order to
show right to sue and the defendant must alleged in order to constitute
his defence. Evidence also consists of facts.

Facta probenda: Material facts.

Facta probentia: Facts by means of which material facts are proved. (not
to be pleaded)

Rondalia v Hunter

A suit was brought against an insurance company on a policy of life

insurance of A. One of the conditions of the policy was that it would
become void if the policy holder committed suicide. In trial defendants
wanted to prove that A committed suicide. Statements were given to
support this plea.

1. A had, for weeks, in a miserable state.

2. A had bought a pistol before his death.
3. A was found with the pistol in his hand.
 4. A letter to his wife was found on A stating his intention to kill
himself.

Court held that all these facts were merely evidentiary facts by means of
which material facts need to be proved.

27th January 2017

Rattilal Case

Partition between plaintiff and defendant. The fact that partition took
place between X & Y in a particular period is a material fact but writing on
behalf of plaintiff in order to prove that partition is not a material fact. It is
only evidence and should not be pleaded in the appeal.

Suit for damages for injury

Plaintiff was injured due to the negligent driving of the defendant. The
driver was not attentive and failed to warn the plaintiff or was driving at
an unreasonable speed and not applying the brakes when they ought to
have been applied.

That the defendant was a notoriously irresponsible driver, was racing or

getting late is not to be pleaded.

Practical/Special application of the rule

1. Mental Condition (Rule 6 Order 10)

To void the effect of a deed on the basis of insanity it is sufficient to
plead insanity and not the prevailing circumstances at the time.
Plead facts, not circumstances.
A sues B for damages for having been bitten by a dog that belonged
to B. Sufficient to state that B knew that his dog was ferocious. Not
to state that on a former occasion also Bs dog had bitten A in the
presence of B. This is evidence and not fact.

2. Notice (Rule 11)

 It shall be sufficient to allege such notice of a fact unless the form or
the precise terms of such notice or the circumstances from which
such notice is to be inferred are material.

3. Implied Contract or Relation (Order 6 Rule 12)

Only effects of letters, conversation has to be pleaded.

Exceptions

1. Writ petitions.
2. Election petition.

In these two exceptions, it is necessary to state matters of evidence in

support of the allegations made there in.

28th January 2017

4th fundamental rule.

Concisely and precisely. Do the facts have to be pleaded with precision

and certainty within order 6 Rule 2.

It does not matter when achieving clarity.

Two requisites of good pleading:

1. Conciseness.
2. Precision and Certainty

Justice Pal of Calcutta HC: Pleadings must be not only concise but they
must also be precise.

Ram Singh v. Col. Ram Singh (AIR 1986 SC 7)

Brevity, which as it is said is the soul of thy wit, is also the soul of pleading
but precision and certainty should not be sacrificed at the altar of brevity.

Justice Sharma in Sanatan v. Behrampur University (AIR 1991 SC

1075)
In order to achieve clarity it does not matter if (pleading) instead of being
concise is elaborate and lengthy.

Ingredients of brevity.

1. Every unnecessary fact should be omitted. Eg: Conclusions of law,

presumptions of law, etc.

2. Unnecessary details should be omitted while stating the material facts.

3. Proper attention to be paid to the language while stating material facts.

4. All idle repetitions, adverbs, adjectives, etc. should be avoided.

5. Whenever contents of any document are material, its legal effect

should be stated without repeating the exact words.

6. Whenever it is material to allege malice, fraudulent intentions,

knowledge or other conditions of mind of any person have to be stated as
fact without stating the circumstances. Order 6 Rule 10.

7. Legal result of a set of letters, circumstances, and series of

conversation should be pleaded without setting out all the circumstances
in detail. Order 6 Rule 12.

Precision and Certainty

Only when the pleadings are complete, certain and clear, can the other
party understand the case.

For fulfilment of the object of proceedings clarity, precision and certainty

should be maintained.

If pleadings are vague and generic then case won't be in your favour.

Certain precautions:

1. As far as possible, use of pronouns should be avoided.

2. Parties should not be referred by their name but just plaintiff/defendant.

3. Names of persons and places should be given accurately.

4. Things should be referred to by their proper name and in any case the
same thing should be described by the same name throughout the
pleading. As change of name suggests a change of meaning.

5. Party suing should quote the words of the document or the legislation
on which reliance is placed.

6. No modification in language should be done.

7. Terse, short, blunt sentences should be used.

8. All ifs and buts should be avoided.

9. Facts should be stated in active voice.

10. Pleadings should be in a separate paragraph.

11. Dates, sums and numbers should be expressed in both figures and
words.

12. All necessary particulars must be given in pleadings.

13. All necessary particulars must be given.

Good pleading strikes a balance between brevity and clarity. Pleadings

have to be as brief as it is consistent with clearness. - Justice William

A good pleading is concise, precise, relevant and comprehensive. Bad

pleading is full of frolics, discusses irrelevant, vague and wanting in
particulars. - Justice Williams.

1. What should a pleading state? RULE 1

2. What kind of facts should be stated? RULE 2

3. How should material facts be stated? RULE 4

4. What should not be stated? RULE 1&3

31st January 2017

Rules of pleadings.

1. Particulars to be stated wherever necessary.

2. Performance of any condition necessary need not be stated.
3. Parties should not raise new grounds or claims.
4. Parties not to raise allegation of facts that inconsistent with their
previous pleadings except by way of amendment.
5. Parties only to state the legal effect of documents not whole or any
part of documents.
6. Psychological facts or other conditions of mind maybe alleged as
facts.
7. Legal result of the set of letters/circumstances/series of
conversation has to be pleaded without going through the whole
story in detail.

Rule 13: Parties need not plead those facts that law presumes in their
favour or as to which the burden of proof lies with the opposite party.

Amendment of pleadings

Three ways to revise pleadings.

1. Amendment at the instance of the opposite party.

2. Amendment at the instance of the court itself.

3. Amendment of ones own pleadings with the leave of the court.

Two kinds of amendment

1. Compulsory amendment. - First two ways of amendment are

compulsory amendment.

2. Voluntary amendment. - Third one is of voluntary nature.

Compulsory
On instance of opposite party

a. Calling for particulars or further particulars. When pleadings of the

party are defective or incomplete the other party may apply for
better particulars. Reply given by the party with defective pleadings
becomes a part of the pleading of that party (Order 6 Rule 5).
Calling for particulars may not be allowed in certain cases:
a. When the order for such part would be oppressive or
unreasonable.
b. Particulars for a mere denial.
c. Particulars of the facts that are not material but only evidence.
d. In case of money. Cannot be compelled for account
particulars.
b. Striking out or amending the pleading of the opposite party. On the
ground of it being objectionable. (Order 6 Rule 16 and 17). In this
case, an application for striking out or amending opposite parties
pleading must be made. It should have a ground of it being
objectionable. Court may at any stage of the proceeding order to
strike out or amend any matter
a. Which may be unnecessarily scandalous, vexatious, and/or
frivolous.
b. Which may tend to prejudice, embarrass, and delay the fair
trial.
c. Which is otherwise an abuse of the court process.

3rd February 2017

c. Rejection of the plaint (Order 7 Rule 11)

As per order 7 Rule 11, if the plaint doesn't disclose any cause of
action then the defendant may make an application that the plaint
be rejected and the court may pass an

On the instance of court

Court is competent to pass such an order even without any application to
that effect by any party.

Voluntary or optional amendment

If the plaintiff realises that their pleadings are defective or incomplete,

then they may amend it by the following ways:

1. By filing further particulars by the leave of the court.

2. By filing an additional written statement by the leave of the court.

3. By amending it with the leave of the court.

This may be done:

i. When new fact comes into light.

ii. Original relief becomes inappropriate in the light of subsequent
events.
iii. Change in law.

Courts are fully empowered to exercise their powers of amendment. Also,

the exercise must be liberal.

Order 6 Rule 17

1. This rule confers power of discretion on the court to allow any party
in a suit to amend their pleading. In such manner or in such terms
as the court may deem just. This purely discretionary. Rule 17. Court
may permit at any stage and in any manner.
2. Usage of Shall. And all such amendment shall be made as may be
controversial between the parties. This gives it an imperative
character.

If application for amendment satisfies two conditions then it must be

allowed.

1. If the amendment wont cause injustice to the other party.

2. The amendment is necessary for the purpose of determination of
the real question in controversy between the parties.
Nishchal Bai v. Jaswant Lal (AIR 1966 SC 997)

Object for allowing amendment of pleadings is to avoid multiplicity of suits

and to do substantial justice. Rules of procedure have no other aim than to
facilitate the task of doing justice.

AK Gupta v. Damodar Valley Corporation (AIR 1967 SC 96)

SC held that their aim is to decide the rights of parties and not to punish
them for their mistakes.

Object of Rule 17 is to try the cases which come before them on their
merit and thus allow all amendments which maybe be pertinent in
determination of the real issues between parties provided that it can be
done without causing any injustice to the other party.

Jai Jai Ram Manohar Lal v. NBM Supply (AIR 1969 SC 1269)

Power to grant amendment of the pleading is intended to serve the ends

of justice.

Harcharan v. State of Haryana (AIR 1983 SC 43)

Rule 17 uses the phrase "at any stage". However negligent the plaintiff
may have been during the first contention. But it must be clear that the
parties are entitled to seek amendment as a matter of rights.

Principles of amendment.

Rule 17 confers wide discretionary powers of amendment on court but this

discretion may not be applied in an arbitrary manner.

It is not sufficient to indicate the principle with which the court must bind
itself in making the decision but there are several decisions that have
evolved certain norms for just consideration for allowing the amendment
application. These are now deemed to be governing principles which the
courts are now bound to observe while granting leave to amend.
 1. The powers have to be exercised liberally because the rules of
procedure exist to achieve the ends of justice.
2. Amendment should be allowed in order to overcome the effects of
the bona fide mistakes.
3. To avoid multiplicity even if it results in ousting its own jurisdiction in
the matter.

7th February 2017

Order 7 Rule 10

Under any enactment curtailed power of amendment under any

enactment would prevail over the general power of amendment granted
under order 6 Rule 17.

Amendment may be allowed at the cost of hearing. Only if it's essential. If

the party does not carry out the amendment permitted by the court for a
long time, the court may refuse to carry out the said amendment in the
final place.

Effect of delay in making application for amendment

It must be clear as mentioned in the provisions that court may allow

amendment of the pleadings at any stage of the proceedings however
late.

Proposed amendment must be prayed for. Regardless of the fact that it

was caused by negligence or carelessness of the party or his council.
(Harcharan Case)

Amendment at appellate stage has to be done in very exceptional cases

and only to achieve the ends of justice.

Mere delay is no ground for refusing amendment. Frivolous amendments

should not be allowed by courts. By doing so it cannot be said that
allowing for amendment application may allow for unnecessary delay.
The proposition of amendment with delay is not at all governed by the
considerations as to how much delay has occurred and the reason behind
it. In a case it was made after 8 years. (Just cause and reason must be
given)

Ganga Bai v. Vijay Kumar (AIR 1974 SC 1126)

Mortgagee filed a suit to enforce a mortgage of a joint property.

Preliminary decree was passed only against the fathers share. The suit
was dismissed against the sons. Aggrieved by the decree directing the
sale of half of the property only and the plaintiff mortgagee appealed to
the HC against the preliminary decree.

The sons appealed only against findings to the trial court that the portion
between the father and sons effected subsequent to the mortgage was
not genuine.

Nearly after 7.5 years of filing the appeal the sons sought to amend their
memo of appeal by including a challenge to the preliminary decree in it.
Meanwhile, final decree for sale had been passed. The decree holder had
auction purchased a joint half share in the mortgaged property in full
satisfaction of his mortgage decree and had also entrusted into joint
possession.

HC allowed the memo to be amended but not a reason was given to

explain the delay and not a reason was given to condone it.

SC held that the HC was only erroneous in allowing the amendment.

Particularly when the sons had neither explained the long delay nor
sought its condonation.

Gauri Shankar v. Hindustan Trust Ltd. (AIR 1972 SC 2091)

Amendment moved after 8 years. It was not allowed as it would have

prejudiced the other party.

Harish Chandra v. Triloki Sen

Amendment not allowed as no attempt was made to give an explanation
for appeal after such a long delay.

Mohan Singh v. Pashupatinath (AIR 1970 SC 42)

22 years delay was there and amendment was not allowed.

Delay is the material factor which has to be considered and court will also
consider the effect of permitting amendment. In a denial of the rights of
the party and injustice to them.

Where the party concerned could not, with reasonable diligence, have
discovered the new facts earlier, amendment can be allowed. In
exceptional cases.

13th February 2017

Refusal of amendment

Court has to assess if the amendment is necessary or not.

Refusal when

1. The proposed amendment is unnecessary. (Not necessary to

determine the real question)
2. Mere technical reasons. (Wrongful institution is a non-technical
ground)
3. Useless issues that have no substance.
4. Injurious to opposite party. Injury will lead to two things.
a. When the proposed amendment takes away from defendant a
legal right which is in his favour due to lapse of time.
b. When the plaintiffs suit would be wholly displaced by
proposed amendment.
5. Displacement of suit. (Steward v. NM Tramways Co.)
6. Excessive delay in filing for amendment without good reason.

Under Order 6 Rule 17, the court may ordinarily refuse amendment when
it takes legal right from a party that has accrued because of lapse of time.
Cases

Weldon v. Neal.

Plaintiff filed a suit against defendant for damages for defamation and
after sometime plaintiff moved an application for amendment. Thereby he
wanted to claim damages for assault and false imprisonment. On the date
of the application, claims in respect of assault and false imprisonment had
become barred by limitation and the application was refused since the
proposed amendment took away from the defendant a defence under the
law of limitation.

Gangabai v. Vijay Kumar (AIR 1974 SC 1126)

Amendment was refused since by lapse of time a valuable right had

accrued in favour of the decree holder.

Steward v. NM Tramways Co.

Suit filed against tramways company for obtaining damages on account of

damage caused because of negligence of the tram company in
maintenance of teams. Only defence was that there was no negligence on
their part. After about 6 months company moved an application for
amendment for adding allegations that by virtue of a contract, liability to
maintain the roadways was transferred to a local authority and that the
tram company was no more responsible for the same.

Thus, at the time of amendment application plaintiffs plaint against the

local authority had been barred by limitation. If amendment was allowed,
the plaintiffs claim against the company would have failed as they would
not have been proper defendants then.

Amendment was rejected.

Modi spinning and weaving mills co. Ltd. Case (AIR 1977 SC 680)

Once the WS of defendants contains something in favour of the plaintiff it

can not be withdrawn. If such withdrawal would amount to totally
displacing the whole case.

Heeralal v. Kalyanmann (AIR 1988 SC 618)

Plaintiff has filed a suit for partition of 10 properties and in ther WS,
defendant clearly admitted that 7/10 of these properties were jointly
owned and remaining 3 exclusively belonged to the defendant. After 18
months defendant moved an amendment application for their WS to the
effect that admission made by them in their WS be allowed to be
withdrawn. Court rescinded the application and held that proposed
amendment, if allowed, would only displace the plaintiffs case as regards
7/10 parties and is right to get preliminary decree of partition.

17th February 2017

When the proposed amendment changes nature of the case.

Cases

Kartar Singh v. Sardar Singh

Plaintiff complained that he was induced to enter into a contract by

defendant, by false representation. The contract was thus void ab initio,
so he was entitled to restoration of possession of land which plaintiff had
surrendered to defendant in pursuance of part of his contract. Later, it was
found that no fraud has been established. Therefore, contract was not
void. Plaintiff has moved an amendment application. Defendant had
committed breach of contract by not carrying out his part of the contract
therefore, plaintiff was entitled to damages for breach of contract. Thus,
court rejected the amendment.

A different relief sought on different grounds.

Court has no power to allow the amendment to include a new and

different cause of action.
If parties satisfies these conditions, the court may allow amendments
using its inherent powers:

1. No change in jurisdiction.
2. No great delay in filing amendment.
3. No fresh enquiry of facts necessary.
4. Opposite party is not deprived of any defence.

If application for amendment is not made in good faith, it shall not be

allowed.

If a party was well versed with the facts of a case but kept them
concealed deliberately concealed before the trial and later on moved an
amendment appeal on basis of those concealed facts, then the
amendment appeal would not be entertained.

Hiralal v. Kanyal

If the proposed amendment is sought with the view to only delay the
proceedings, it shall not be allowed as it wont be bona fide.

If there is excessive delay, the amendment would not be allowed.

Delay is not destructive of rights of parties unless its excessive in which

case it would be malafide.

Eg: Gangabai Case.

Case

1. Mohan Singh v. Pashupat Nath (AIR 1970 SC 42)

Amendment was refused as the case was 22 years old. Cogent
reasons must exist for delay. Reasonable diligence is required.
2. JB Patel v. Jagnandan Singh (AIR 1974 Pat. HC)
The court cannot ask a party to pay exemplary cost for allowing the
amendment. Suit was for 2600. Lower court asked party to deposit
1000 for amendment. HC deemed lower courts action incorrect.
Amendment cost (Order 6 Rule 17)

Order VI Rule 18: Effect of failure to amend.

 Purpose: Should be allowed within time.
Object: Expeditious disposal of suit.
1. If amendment not done within time then permission of court
must be taken and request for a new date.
2. For expeditious disposal of the suit. Within 14 days or as the
court may prescribe.
3. It is necessary to ask for extension.
3. Naresh Chandra v. State of Gujarat (HC)
Where both parties did not know of order allowing amendment of
plaint. It was only during trial. Plaintiff moved the court to carry out
such amendment.
It was held that the court did have power to extend time for carrying
out amendment when sufficient cause has been shown for delay.

No amendment not any extension of time application takes place then

execution cannot happen and on that ground suit is not liable to be
dismissed. Only consequence would be that trial shall be done on the
basis of the original pleadings.

20th February 2017

Plaint

What is a plaint?

Order VII talks about plaints. No specific definitions is given.

Framing of suits: Every person has an inherent right to bring a suit of civil
nature unless the suit is barred. It can only be instituted by presenting
plaint.

It can be said that plaint in a suit is the document evidencing the suit and
not the suit itself.

Difference between suit and plaint?

Essentials

1. There must be a subject matter.

 2. There must be minimum two parties. (Order 1)
3. There must be a cause of action. (Order 2)
4. Remedies.
5. Court of law. (Jurisdiction)

Necessary party: Suit cannot be instituted.

Proper party: Suit can be instituted.

Plaintiff must choose proper defendant.

Possible errors:

1. Omission of person that is essential.

2. Inclusion of non-essential person.

Order 1 Rule 10(2)

Purpose:

1. To add necessary party.

2. To avoid multiplicity of suits.

Cases

1. Udit Narayan v. Board of Revenue (AIR 1963 SC 786)

- A necessary party is one in whose absence no order can be made
effectively.
- A proper party is one in whose absence, an order can be made
but whose presence is necessary for complete and final decision
on issue involved in proceeding.
- In absence of necessary party, action, appeal or proceedings are
liable to be dismissed on this ground alone.
- As per Rule 10(2) The plaintiff being dominus titus, as a rule the
court should not add any party against his wishes, unless the
person wanting to be joined or the court proposes to join suo
moto.
- Non-impleading of necessary party to a suit, or proceeding is a
fatal defect, which if not remedied with permission of court,
results in its dismissal as no effective order can be passed.
- Omission to join proper parties is not a fatal effect.
- If parties are added by mistake, they can be struck down.
- A person may be impleaded at any stage.
S.21 of Limitation Act: Addition of parties and limitation. If anyone is
added later on, it will be deemed as if he was a party right from
institution. (Only for necessary party)

Order 1 Rule 8: Suit of representation.

1. Necessary person Same interest.

2. Public interest.
3. With the permission of court.
4. Notice to all representing parties.

S.92: Cause of action

Order II: Subject matter of cause of action.

Which establishes or give rise to cause of action the existence of which

affords a party right to judicial relief.

Cause of action is a group of facts which are claimed to have been

brought unlawful injury to plaintiff, and which entitles them to relief. It
consists a right belonging to one person and some wrongful act or
omission by which right has been violated. It is very clear that cause of
action cannot exist without concurrence of rights, duty and defendants
default.

Distinction between Cause of action/Right/Remedy Distinction

They are not same and cannot be used interchangeably.

Cause of action Right of action is a right to enforce cause of action.

Remedial right Affording redress for infringement of a legal right

belonging to some definite belonging to some definite person, thus cause
of action is an operative fact which gives rise to such rights of action. That
right may occur at different time from same cause of action.

There can be several rights of action against one cause of action.

How is cause of action different from remedy?

Remedy is the means or methods whereby the cause of action or
corresponding obligation is effected and by which a wrong is redressed
and relief obtained. However, when one precedes them it gives rise to the
other. Both are governed by different rules and principles.

27th February 2017

Remedy is a means for effectuation of cause of action and by which a

wrong is redressed and relief obtained. One precedes the other.

Essential Element of Cause of action

Existence of a legal right for the plaintiff and a corresponding legal duty
on the part of the defendant. On violation or breach of either of those
which causes an injury or damage to the plaintiff for which he maintained
an action for appropriate relief.

Right to maintain an action depends upon the cause of action. Invasion of

plaintiffs right by violation of duty upon defendant in favour of plaintiff
gives rise to cause of action.

Two elements

1. Right on the part of the plaintiff.

2. Violation on the part of defendant.

Cause of action always arises from invasion of the plaintiffs right by

violation of some duty enforced upon defendant in favour of plaintiff.

It may be by voluntary contract or positive law.

Jurisdiction

Duty of pleader to decide the jurisdiction. CPC Section 16 to 20.

Plaint (Section 26 CPC)

Content of plaint given in Order 7. Plaint is a document through which a
suit is instituted. It is a statement of claim filed by the plaintiff wherein he
states the material facts upon which his case and claim relies.

Purpose is to acquaint the court with the facts of the matter and
contentions of the plaintiff. Also, to notify the defendants.

Parts of plaint

1. Heading and Title

2. Body of the plaint
3. Relief
4. Signature and Verification

Heading and Title

Order 7 Rule 1 (a): Name of the court on the top of the page with
jurisdiction under which the plaintiff has come before it right under the
name of the court.

Some space must be left for affixing the stamp.

Order 7 Rule 1 (b) and (c): Then comes the Title. Name Description and
place of residence of each plaintiff and defendant.

Number of the suit (space left for it as it is allotted by the court) with year.

Nature of the suit.

(Form no.2 in the appendix A in schedule I)

Purpose of Heading and Title

1. To ascertain the proper forum for instituting the suit.

2. To establish the identity of the plaintiffs and defendants.

Body of the plaint.

With this part the plaintiff acquaints the court with the case. The
statement of facts has to be divided in paragraphs. Each paragraph must
contain only one point. Dates, time, anything involving numbers should be
expressed both in words and figures.

Substantial portion

1. Substantial contains statement of facts constituting the cause of

action.
2. Facts showing the defendants interest and liability.
3. Matters of inducement, if present.

Formal portion

1. Date of Cause of action [Order 7 Rule 1(e)] Given to ascertain

limitation period.
2. Statement of facts pertaining to jurisdiction. [Order 7 Rule 1(f)]
Plaint may be returned for want of appropriate jurisdiction (Order 7
Rule 10).
3. Statement as to valuation of suit. [Order 7 Rule 1(i)] Plaint must
contain statement regarding the value of the subject matter of the
suit for the purposes of jurisdiction and court fees. Valuation for the
purpose of court fees is only required if the court fee is charged
under the Court Fees Act. Valuation for the purpose of jurisdiction is
done in order to determine the pecuniary jurisdiction.
4. Statement of minority or insanity of the party. Also, if the party is in
representations character, same has to be mentioned.
5. Statement as to grounds of exception from limitation. (Order 7 Rule
6) In case no such grounds are mentioned, the plaint may be
rejected. Entire body of the plaint has to be drawn in the narrative
from using 3rd person.

Purpose of substantial portion of plaint is to acquaint the court and

defendants with the plaintiffs case. This portion differs.

Purpose of formal portion is to determine whether the court has

jurisdiction to try the matter, if court fees has been paid. Also determines
whether either of the parties is minor or is being represented. Whether
claim is exempted by limitation. This portion is common.
Relief claimed

Various reliefs are available to the plaintiff and they may choose to either
choose one or more of them. They can be claimed simply or alternatively,
but it has to be a specific claim as per Order 7 Rule 7.

One has to claim relief with accuracy. Court shall not grant any relief that
is not claimed in the plaint.

Purpose of this part is to determine whether the plaintiff is entitled to the

relief claimed.

Signature

Order 6 Rule 14 & 15.

Plaint must be signed by the plaintiff. The signature may be done by any
other person who duly authorised by plaintiff when the plaintiff is unable
to sign it due to any reason.

Purpose is to prevent, as far as possible, dispute as to whether the suit

was instituted within the knowledge of the plaintiff.

However, it is not permissible to reject the plaint on the ground that it was
not signed by all of the plaintiffs. It is a matter of procedure and can be
abstained at any stage Signature has to be at the foot of the plaint.

Verification

It has to be verified at the foot of the plaint by the plaintiff/some other

person proved to the satisfaction of the court to be acquainted with the
facts of the case.

Signature and Verification has to be done in WS. If not signed it is a formal

defect, curable at any stage.

Purpose of verification is to fix the responsibility for the statement made

in the plaint upon the person verifying it and to afford a guarantee of their
good faith. It is a matter of great significance. Giving false verification is
punishable under s.193 of IPC as an offence of submitting wrongful
evidence.

Grounds for rejection of plaint

1. Non-disclosure of Cause of action.

2. Non-disclosure of valuation within time.
3. Non-supply of stamps in time.
4. Barred .

6th March 2017

Rule 10 Return of the plaint if the court is not competent.

Rule 11 Rejection of plaint if barred under any law. Matter goes to the
same court.

Written Statement.

Rachappa v. Gurusidappa (AIR 1989 SC 635) here the court said that the
term 'written statement' is a term of specific connotation signifying a reply
to the plaint filed by the defendant.

The defendant deals with every material fact alleged by the plaintiff in the
plaint and states any new fact in their favour as legal objections and what
he wishes to claim.

Order 8 of cpc provides for filling of written statement. Now it becomes an

obligation on defendant after the amendment of 1976 in CPC.

WS has to filed within 30 days from notice.

List of documents.

As per cpc no subsequent pleadings or subsequent written statements are

allowed.

Essentials of WS

1. Heading and Title Same as plaint.

2. Body Division of WS into numbered paragraphs. Its a reply.
 3. Signature and verification Same manner as plaint. Verification by
anyone who is well aware of the facts.

Replication. Reply by the plaintiff to the counter claim.

Body

5 types of defences are available

1. Total denial.
2. Admits allegations but seeks to destroy their effect by pleading new
facts.
3. Admits allegations of plaintiff but may plead that the legal
inferences which the plaintiff claims. Those allegations are not
permissible.
4. Takes plea which delays the trial on merits.
5. May plead set off or counter claim.

Denials or traverse.

Whether defendant totally and categorically denies the claims.

Admission or denial of material facts given in plaints. Admissions and

denial of material facts given in plaints and should be dealt in the opening
paragraph of the body of the WS.

Rules of denial (rules 3,4,5 of order 8)

Denial must deal with specifically every issue.

General denial is insufficient.

In case of compound allegations, that has distinct facts, should deal with
every alleged fact separately. Single denial can't be conclusive.

SC If denial of a fact is not specific then said fact may be taken to be

admitted by defendant.

Rule 4 Denial must not be evasive.

Denial must not be vague.

Badal & Co. v. EI Trading Co. (1964)

SC Evasive denial is no denial in the eye of law.

Odgers A traverse must neither be too large or too narrow. Deny

enough but not too much.

If it is alleged in the plaint that the defendant received certain sum of

money then just a simple denial of the same is not enough. They must
also deny that they received that sum or any part thereof or set out how
much did they receive.

If an allegation is the plaint is made with diverse circumstances it shall not

be sufficient to deny it along with those circumstances. Denial must be of
allegation and not circumstances.

When a denial becomes evasive?

1. When it is too literal.

2. When it is too large.
3. When it is vague.

An evasive denial may lead to constructive admission of those facts by

the defendant.

Defective denial or non-filing of WS would lead to constructive admission.

Rule of constructive admission refers to a situation in which the allegation
made in the plaint maybe regarded as having been admitted by the
defendant even though they have not admitted any of them.

Order 8 Rule 5(1)

Constructive admission caused by defective denial.

A denial is defective when it is in violation of Order 8 Rule 3 & 4.

1. If not denied specifically.

2. Not denied by necessary implication.
3. If not stated to be not admitted in the WS then it shall be taken to
be admitted by the defendant.
In such an event the admission itself being proof, no other proof is
necessary.

Sometimes it is written by the defendant that he has no knowledge of the

allegations stated in plaint. This is not specific or implied denial. Such
pleas have to be held as constructive admission of the allegations given in
the plaint.

UNIT V

Power of Attorney

1. General Power: Power given to someone to execute multiple tasks.

2. Special Power: Power given to someone to execute a single task.

Drafting of special power of attorney

The blank for client shall contain:

1. Full name
2. Address
3. Parental info
4. Time period

The blank for attorney shall contain the full description of the person in
whose favour it is executed.

By this power of attorney, I ____________ hereby appoint ____________ as

my attorney to act in my name and on my behalf and do or execute all or
any of the acts or things hereinafter mentioned as follows:

1. To receive from (details of person), the purchaser the sum of Rs. X

(in figures) being the price agreed to be paid to me by the said
purchaser for the purchase of P (full description of the property,
address, etc.) under an agreement dated dd/mm/yy and to give
proper receipt and discharge for the same.
2. To execute the sale deed of the said property.
3. To present the said deed for registration authority to admit the
execution thereof.
 4. To do all acts, deeds and things which may be necessary for
registering the sale deed.
5. To execute or to do all acts, things or deeds or assurance of the sale
of the said property.
6. To deliver possession of the said property to the purchaser or his
nominee.

I do hereby agree to ratify all acts, things, deeds or proceedings lawfully

done by my attorney on my behalf and in my name by virtue of this power
of attorney and the same shall be binding on me in full force of effect.

In witness whereof I have executed this power at _______ (office details) on

dd/mm/yy.

Witness (Left Side)

1. Delta (Full name, description and signature)

2. Zeta

Right side

1. Executant (Signature)
2. Attorney (Signature)

Here, we can see that the powers have been conferred related to sale and
execution. Any general power of attorney has to be drafted the same way.

21st March 2017

Two exceptions to Order 7 Rule 5(1)

1. Should not be applied against a person under legal disability.

2. Plaintiff may be put to proof under courts discretion.

Rule 5(2): Constructive admission caused by Non filing of WS.

It would be lawful for the court to pronounce a judgements on the basis of

facts of the case contained in plaint in case of non-filing of WS.

Defences
1. Matters need not be denied specifically by the defendant:
a. Law
b. Damages
c. Relief plaint
d. Non alleged facts.
2. Dilatory pleas. These are those pleas which may delay the trial of a
suit on merits. Simple objection to be raised to the proceedings. This
defence does not give a substantial reply. These should be taken at
the earliest possible opportunity.
3. Objection to point of law. Should be substantial not merel technical.
Legal inferences.
4. Special defences
a. Confession and avoidance: It is a plea whereby the defendant
admits the allegations made in the plaint but seeks to destroy
their effect by alleging affirmatively certain facts of their own.
Eg: In a suit for breach of contract, defendant may admit the
contract and at the same time plead that the defendant was
induced to enter into the contract by fraud.
b. Limitation
c. Jurisdiction
d. Estoppel
e. Res judicata
f. Illegality
g. Justification
h. Act of God.
i. Adverse possession
j. Alteration