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CIVIL PROCEDURE CODE

STUDY MATERIAL

PART-2

Collected by:
Y. SREENIVASULU,
Advocate,
TADIPATRI-515411
Ananthapuramu Dist.
Mobile: 9949174741
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CIVIL PROCEDURE CODE

PART-2

Definition And Fundamental Rules Of Pleading Under CPC, 1908

Introduction
The term „plead‟ means to request or ask for something in a polite and
humble manner. Now, such request can be made orally or in written or in
any other form that signifies a request being made by one before another
person or entity which is in a position to grant that request. The contents
of such request, in general, is called pleading.

For instance, two kids A and B are fighting and A complaints to his
teacher that B hit A and injured him. Everything that A tells to his teacher
as to where was the fight, at what time, for what reason, etc. amounts to
A‟s pleadings. Further, when B is called to justify his actions, everything
that B says in his defence and/or puts any allegations or counterclaims
against B are A‟s pleadings.

Thus, pleadings are those information, data or momentous facts which are
vital to be asserted in order to put forward a cause or to establish a
defence in a proceeding.

What is Pleading?
Order 6 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter „CPC‟)
defines pleadings as “plaint or written statement”[1]. Plaint is the
document submitted by the plaintiff, i.e. the aggrieved party who states the
material facts, reasons for filing the suit and what remedy or relief the
aggrieved person is claiming through the legal proceedings.

On the other hand, a written statement is a reply to the plaint wherein the
defendant, i.e. the opposing party against whom claims are being made
by the plaintiff.

According to Mogha, “pleadings are statements in writing drawn up and

filed by each party to a case, stating what his contentions will be at the
trial and giving all such details as his opponent needs to know in order to
prepare his case in answer”[2].
Pleadings contain claims by the plaintiff, counterclaims by the defendant,
questions and answers and everything that is essential to lead the case to
a certain end. Any ground or fact not mentioned in the pleadings cannot
be used or relied upon by the parties in court during the judicial
proceedings.

In Devki Nandan v. Murlidhar[3], the Supreme Court held that a finding

of the court, i.e. any point of determination established by the court is null
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and void if it is based on materials not mentioned in the pleadings.

Therefore, the pleading is the backbone of a suit on which the fate of the
suit rests.

Objects and Importance of Pleading

Lord Jessel in the notable case of Throp v. Holdsworth[4] explained the
objectives and purposes of pleadings in a judicial proceeding. According
to His Lordship, the main object of pleadings is to taper down the parties
to certain specific issues and forbid enlargement of issues. Pleading
assists the parties to know the facts and circumstances of the case
brought against them by the adverse party and hence, saves time and
expense.

Earlier, when pleadings were not in vogue and parties used to argue their
case directly in court, there were instances where parties took much time
to respond to the claims because of the sudden and new arguments of the
adverse party.

The objects of pleading can be enlisted as follows:

1. To taper down the broad issues on which dispute arose to a narrow

and common issue.
2. To avoid sudden and astonishing facts from emerging in the
proceeding and causing travesty of justice.
3. To render judicial proceedings inexpensive, less cumbersome and
approachable.
4. To protect the valuable time of people that is wasted in framing
arguments after every hearing.
5. To eliminate irrelevant facts and materials that will waste the time of
the court.
6. To aid the court in reaching to a fruitful conclusion.
Fundamental Rules of Pleading
Order 6 Rule 2(1) states that “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”[5]. Thus, this provision indicates
that there are four basic or fundamental rules of documenting a pleading:

1. Pleadings ought to state the facts of the case and not the legal
provisions applicable in the case.
2. Pleadings must contain only material facts.
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3. Pleadings should contain the relevant facts on which either party

relies but it should not state the evidence by which the fact is proposed to
be proved.
4. Pleadings must contain a concise, i.e. brief facts that explains the
details of the case in short.
Now, these rules are discussed profusely as follows:

1. Pleadings ought to state the facts of the case and not the legal
provisions applicable in the case:
In Kedar Lal v. Hari Lal[6], the apex court held that the parties to a civil
suit are obliged only to state the facts and situations that happened and
on which they rely in the pleadings and to apply the law is the duty of the
judiciary. It means that the parties should state what their claims are and
why they should be granted to them.

For instance, in the earlier example where A complained about B hitting

him, A should explain only what caused the fight, what was A‟s role in the
fight, why did B hit him and should not explain what offence has been
committed by A by hitting B and which provision should apply and what
procedure should be followed.

However, the rule was expanded a little in Union of India v. Sita Ram
Jaiswal[7] wherein the apex court held that if there is a point of law which
is in dispute or which has become part of the dispute, the point of law
must be explained in the pleadings with necessary reference to relevant
and vital facts of the case.

2. Pleadings must contain only material facts:

This the essential rule which states that facts which are material should
find a place in pleadings. The question that remains is what constitutes
material fact and which fact is immaterial. There is no specific definition of
the expression „material fact‟ either in the CPC or any other law.

Nevertheless, the apex court has explained the meaning of „material fact‟
in Udhav Singh v. Madhav Scindia[8]. The court averred that „material
facts‟ all those primary facts that are relied on by the parties either to
substantiate their claims and establish their cause of action or used for
their effective defence or counterclaim against the claiming party.

It has been observed by the courts that what type of facts or information
would amount to material fact is a subjective issue and shall be
determined by the court on a case to case basis depending upon the
circumstances of the case.
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3. Pleadings should contain the relevant facts on which either party

relies but it should not state the evidence by which the fact is
proposed to be proved:
According to this rule, the evidence must be omitted from the pleadings. In
other words, the party is not obliged to mention the documentary evidence
or the witnesses which it proposes to produce before the court to be used
against the adverse party. This is to ensure the fairness of a trial and
assure the safety of the evidence. There are two types of facts according
to jurisprudence, i.e. facta probanda and facta probantia.

Facta Probanda means facts which are essential for either party to prove
their case and establish their cause of action or defence as the case may
be. These facts are necessitated by Order 6 Rule 2 to be mentioned in the
pleading. Contrary to this, facta probantia means facts which are in the
form of evidence. Any fact which is in the form of evidence and which shall
be used by the parties to prove the facta probanda shall not be mentioned
in the pleading.
4. Pleadings must contain a concise, i.e. brief facts that explains the
details of the case in short:
The last and final basic or fundamental rule which is also called the „rule of
brevity‟ requires that the pleadings are short, unambiguous and not
capable of multiple interpretations but only one interpretation that the
pleader desires to convey.

In Virendra Kashinath v. Vinayak N. Joshi[9], the court observed that

pleadings must be brief and niggling should be avoided. However, it does
not mean that essential facts need to be omitted or missed in the attempt
to achieve brevity. However, the court averred, if syntax errors and
drafting style is perfect, pleadings can be precise and legible.

Other Rules of Pleadings

Besides the four afore-mentioned fundamental rules, there are certain

other particular rules which need to adhere while drafting a pleading.
Rules 3 to 16 of Order 6 specifically provide several guidelines to be
followed for pleading. These guidelines constitute the other rules of
pleadings. These are:

1. In a case for misrepresentation or criminal breach of trust or fraud

or wilful default in payment of due, specific particulars with respect to
dates and items should be mentioned in the pleadings.
2. If there is a condition precedent to taking legal action and if such
condition is fulfilled, it is not required to be mentioned. However, if it is not
fulfilled, it is essential that the fact is mentioned with reasons. For
instance, under Section 80 of the CPC, no legal action can be brought
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against the government without two months‟ notice. Thus, if the notice is
not served, the plaintiff must mention this and the reason for non-
adherence.
3. A pleading can be amended at a later stage of the proceeding
provided no new ground for a claim or new allegations are added to the
original pleadings.
4. Every pleading must be verified by the party whose pleading it is
and it must be accompanied by a sworn affidavit which forms the
deposition of the party and all these documents must be under the
signature of the party concerned.

References:

1. Srivastava K. K. Dr., The Law of Pleadings, Drafting and

Conveyancing, 8thEdition, Central Law Agency, Allahabad, 2014.
2. Takwani C. K., Civil Procedure with Limitation Ac t, 1963, 7thEdition,
Eastern Book Company, Lucknow, 2013.
[1] Order 6, Rule 1, Code of Civil Procedure, 1908.

[2] Mogha‟s Law of Pleadings (1983) at pg. 1.

[3] Devki Nandan v. Murlidhar, AIR 1957 SC 133.

[4] Throp v. Holdsworth, (1876) 3 Ch D 637.

[5] Order 6, Rule 2(1), Code of Civil Procedure, 1908.

[6] Kedar Lal v. Hari Lal, AIR 1952 SC 47.

[7] Union of India v. Sita Ram Jaiswal,

[8] Udhav Singh v. Madhav Scindia,

[9] Virendra Kashinath v. Vinayak N. Joshi, (1999) 1 SCC 47.

Grounds And Procedure For Return And Rejection Of Plaint Under

CPC, 1908

Meaning of Plaint
The term plaint has not been defined by the Civil Procedure Code
(hereinafter „CPC‟) or any other law for that matter. We are acquainted
with the term „complaint‟ which basically means a statement of facts
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showing that something wrong or unauthorized has been done by a

person.

In the Indian legal system, the word „complaint‟ is used in criminal

jurisprudence while the word „plaint‟ is used in civil law; but both mean
statements of essential facts that reveal the commission of an overt act or
omission of a legal act that has resulted in an injury to the victim.

Order 6 Rule 1 of the CPC defines pleadings as “a plaint or a written

statement”[1]. It means that plaint is the pleading filed on behalf of the
victim, i.e. plaintiff. It is the first step to initiate a civil suit in a court of law.
The plaintiff, after employing a counsel, files a document in the court
which contains the facts and circumstances that gave rise to the cause for
filing the suit. This document is called plaint.
I. Return of Plaint by the Court
The CPC empowers the civil courts to return the plaint to the plaintiff if the
court believes that the plaint is not properly filed. Return is different from
rejection and it needs to be noted. Return of plaint does not connote that
the plaint had mistaken or that the rules for drafting the plaint were not
conformed to.

It simply means that the court is not empowered to try the suit for which
the plaint is filed. On the contrary, the plaint is rejected if the essential
requirements of a plaint are not provided in the plaint or if the certain
elements are vague and ambiguous.

 Grounds For Return Of Plaint

According to Order 7 Rule 10(1) of CPC, a plaint is returned on the sole
ground of lack of jurisdiction with the concerned court.

For instance, a plaint is filed in the city civil court by A against his
employer for unlawful retrenchment from a job. Since there are specific
labour courts to deal with these cases, the city civil court does not have
the jurisdiction to adjudge and hence, plaint can be returned by the court.
Under this rule, the court can return the plaint for lack of jurisdiction but
the plaintiff has every right to file the plaint again in the appropriate forum.

The court can lack jurisdiction on three occasions:

1.Territorial Jurisdiction

Every court has a specific territory under its control and it can take cases
when disputes have arisen in those territories only.

Territorial jurisdiction is determined according to the law. For instance,

under the Hindu Marriage Act, 1955, a divorce petition can be filed in the
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place where the married couple resided during marriage or where they
last resided before separation or where the wife resides after separation.
Thus, all these courts have territorial jurisdiction. Nevertheless, if a plaint
is filed outside these places, it can be returned.

2. Pecuniary Jurisdiction

The term pecuniary means related to money or monetary. Every suit is

required to be valued according to the compensation that is claimed and
the value of the property which is in dispute, if any. This is called suit
valuation and it is decided according to the State Suit Valuation and Court
Fees Acts. Now, every court has been allotted a limit which means a suit
which is valued within the limits of that court‟s pecuniary jurisdiction is
admissible and rest is returned.

In general, Small Causes Courts have jurisdiction for suit valued between
INR 1 to 2,00,000. Junior Civil Judge exercises jurisdiction for suits valued
between INR 2,00,001 to 10,00,000. Senior Civil Judge can exercise his
jurisdiction in cases valued above INR 10,00,000 and upto 20,00,000 and
any case above 20,00,000 is taken to the High Court. However, the
pecuniary jurisdiction differs from state to state and was also amended by
the Commercial Courts Establishment Act in Delhi.

3. Subject-matter Jurisdiction

As explained before, every court has been established to deal with cases
of specific nature. For instance, civil courts deal with civil cases, criminal
courts deal with criminal matter, family courts deal with personal laws and
so on.

If it is filed before a court that does not deal in that matter, the court is
empowered to return the plaint to be filed before competent court.

 Procedure for Returning the Plaint

The procedure for returning the plaint depends upon two circumstances.
First, where the court in the initial hearings identify that it does not have
the jurisdiction to try the case and it feels that the plaint needs to be
returned.

Second, where the defendant has appeared and after which the court
believes that plaint needs to be returned for lack of jurisdiction.

In cases where the defendant has not yet appeared and the court opines
to return the plaint, Order 7 Rule 2(2) mandates the court to endorse the
following particulars on the plaint:
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 Date on which the plaint was initially presented by the plaintiff,

 Date on which the plaint is being returned by the court. The
returning date is not the one where the court formed the opinion but
when the court actually returned the plaint.
 Cause title, i.e. the details of the party which presented the plaint.
 Reasons that compelled the court to return the plaint.
Rule 10A of Order 7 applies to the situation where the plaint is returned
after the defendant(s) has/have appeared before the court. The following
list summarises the procedure that needs to be followed while returning
the plaint:

1. The court must intimate the plaintiff through registered post or any
authorized manner that the plaint is to be returned for lack of jurisdiction.
2. The plaintiff needs to appear before the court either personally or
through his counsel.
3. The plaintiff is required to inform the court as to where the plaintiff
proposes to file the new plaint after it is returned by this court.
4. The court may fix the date of appearance of plaintiff and defendant
before the competent court where the new plaint is filed.
5. The court may, at the request of the plaintiff, serve notices to the
plaintiff and defendant requiring them to appear before the competent and
intimating them of the return of plaint.
6. This notice shall serve as summon and no new summon will be
required to be issued by the court where the returned plaint is filed.
In ONGC ltd. v. Modern Construction and Company[2], the court held
that when an incompetent or court without jurisdiction returns the plaint
and it is filed before a court that has the requisite jurisdiction, such plaint
must be considered a fresh plaint and there needs to be a de novo trial
that should be conducted for the new suit even if in the original suit, trial
had completed.

II. Rejection of Plaint by the Court

Order 7 Rule 1 lays down the contents of a plaint and some of these
contents cannot be missed by the pleader. If such content is missed, the
court is empowered to reject the plaint and the plaintiff has to resubmit the
plaint after making necessary modifications. Rejection, however, is not the
first option before the court.

Law is not to humiliate the victim, it is to give an opportunity to a vigilante

and bona fide victim to claim remedies. Therefore, CPC allows
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amendment of the plaint at any time before the judgment is passed so that
the court does not have to reject the plaint.
 Grounds for Rejection
Order 7 Rule 11 lays down the specific grounds for rejection of the plaint.
There are six grounds for which a plaint can be rejected under this
provision and they are as follows:

1. When the plaintiff has omitted or abstained from unveiling the cause
of action, i.e. the overt act or omission by the defendant that led the
plaintiff to file this suit.
2. When the plaintiff has intentionally or unintentionally undervalued
the plaint. Undervaluation means showing that the value of a property is
less so that the valuation of the suit is at a lesser amount and the court
can exercise jurisdiction on the matter which, otherwise, could not have
exercised if the suit was correctly valued.
3. Under the Stamps Act, every legal document is required to be
drafted on a stamp paper of the requisite value which depends on several
factors such as nature of the document (whether it is plaint, rent
agreement, etc.), valuation of the suit, etc. If it is not filed on the stamp
paper of the value specified by law, the court may ask the plaintiff to
submit the stamp paper and if he fails to do that, it can be rejected.
4. When the filing of the suit is barred by law and it is evident from the
statement of the plaint, the court shall reject the plaint. For instance, under
the Insolvency and Bankruptcy Code, 2016, when a company is unable to
pay its debts, its creditors can initiate an insolvency process. It means the
company is given time to revive, make profits and repay its creditors. This
period is called moratorium and under Section 13 of the Code, every suit
is barred against the company during the period of moratorium.
5. It is required to be filed in duplicate. It means the plaintiff has to file
two copies of the plaint, one for the court and other for the defendant. If
the plaintiff has not filed the plaint in duplicate, the court is empowered to
reject it.
6. Order 7 Rule 9(1) requires that the plaintiff submits as many copies
as the court asks for to be submitted to the defendants. It is usually the
number of copies as there is the number of defendants and such copies
have to be submitted on a plain paper. If the plaintiff fails to submit the
required number of copies of the plaint, it becomes a ground for rejection
of the plaint.
7. Order 7 Rule 9(1A) requires that the plaintiff submits the requisite
fees that will be incurred by the court to serve the summons to the
defendants. In a criminal case, the summons is served at the cost of the
state. However, in a civil suit, the fees need to be paid by the plaintiff. If
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such payment is not made within 7 days from the date of order of
payment, the plaint is liable to be rejected.
 Other Additional Grounds for Rejection
The courts have expounded few other grounds which are in addition to the
grounds laid down in Rule 11. These grounds have been created by
instances in several cases and as the court found necessary. These are:

1. In Radhakishen v. Wali Mohammed[3], the court allowed the

rejection of plaint by the senior civil court because the person whose
signature was present on the plaint was not the authorized signatory of
the entity but someone else. The court allowed the error to be amended
within 7 days but since, the plaintiff to do so, it was rejected.
2. In Arivandanam v. T.V. Satyapal[4], the court held that the
intention of the plaint has to be understood from its wordings. If the plaint
is exasperating and the court believes that it is filed with a malicious
intention to irk the defendant and that it lacks merit, it can be a valid
ground for rejection.

References:

1. Takwani C. K., Civil Procedure with Limitation Act, 1963, 7thEdition,

Eastern Book Company, Lucknow, 2013.
2. Sir D.F. Mulla, The Code of Civil Procedure, 19th Edition, Vol. 3,
Lexis Nexis, 2017.
[1] Order 6 Rule 1, Code of Civil Procedure, 1908.

[2] ONGC ltd. v. Modern Construction and Company, (2014) 1 SCC 648.

[3] Radhakishen v. Wali Mohammed, AIR 1956 Hyd. 133.

[4] Arivandanam v. T.V. Satyapal, (1997) 4 SCC 467.

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General Rules of Filing a Plaint

Introduction
Order 6 Rule 1 of the CPC defines pleadings as “a plaint or a written
statement”[1]. It means that plaint is the pleading filed on behalf of the
victim, i.e. plaintiff. It is the first step to initiate a civil suit in a court of law.
The plaintiff, after employing a counsel, files a document in the court
which contains the facts and circumstances that gave rise to the cause for
filing the suit. This document is called plaint.

As understood from above, plaint is a pleading under the CPC and

therefore, by virtue of being a pleading, certain general rules that apply to
pleadings also apply to plaint as well. However, there are certain
exceptions and additions that apply only to plaint and not to a written
statement or any other form of pleadings.

General Rules of Plaint

Order 6 Rule 2(1) states that “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”[2].

As aforementioned, this rule also applies to plaint as it is one of the

pleadings as defined under Order 6 Rule 1. Thus, this provision indicates
that there are four basic or fundamental rules of documenting a plaint:

1. General rules of plaint: Plaint ought to state the facts of the case
and not the legal provisions applicable in the case.
2. General rules of plaint: A plaint must contain only material facts.
3. General rules of plaint: Plaints should contain the relevant facts on
which either party relies but it should not state the evidence by which the
fact is proposed to be proved.
4. General rules of plaint: Plaint must contain a concise, i.e. brief facts
that explain the details of the case in short.
Now, these rules are discussed profusely as follows:

 Plaint ought to state the facts of the case and not the legal
provisions applicable in the case:
In Kedar Lal v. Hari Lal[3], the apex court held that the parties to a civil
suit are obliged only to state the facts and situations that happened and
 13

on which they rely in the pleadings and to apply the law is the duty of the
judiciary. It means that the parties should state what their claims are and
why they should be granted to them.

For instance, in the earlier example where A complained about B hitting

him, A should explain only what caused the fight, what was A‟s role in the
fight, why did B hit him and should not explain what offence has been
committed by A by hitting B and which provision should apply and what
procedure should be followed.

However, the rule was expanded a little in Union of India v. Sita Ram
Jaiswal[4] wherein the apex court held that if there is a point of law which
is in dispute or which has become part of the dispute, the point of law
must be explained in the pleadings with necessary reference to relevant
and vital facts of the case.

 Plaint must contain only material facts:

This the essential rule which states that facts which are material should
find place in pleadings. The question that remains is what constitutes
material fact and which fact is immaterial. There is no specific definition of
the expression „material fact‟ either in the CPC or any other law.

Nevertheless, the apex court has explained the meaning of „material fact‟
in Udhav Singh v. Madhav Scindia[5]. The court averred that „material
facts‟ all those primary facts that are relied on by the parties either to
substantiate their claims and establish their cause of action or used for
their effective defence or counterclaim against the claiming party.

It has been observed by the courts that what type of facts or information
would amount to material fact is a subjective issue and shall be
determined by the court on a case to case basis depending upon the
circumstances of the case.

 Plaint should contain the relevant facts on which either party

relies but it should not state the evidence by which the fact is
proposed to be proved:
According to this rule, evidence must be omitted from the pleadings. In
other words, the party is not obliged to mention the documentary evidence
or the witnesses which it proposes to produce before the court to be used
against the adverse party. This is to ensure the fairness of a trial and
assure safety of the evidences. There are two types of facts according to
jurisprudence, i.e. facta probanda and facta probantia.

Facta Probanda means facts which are essential for either parties to
prove their case and establish their cause of action or defence as the case
may be. These facts are necessitated by Order 6 Rule 2 to be mentioned
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in the pleading. Contrary to this, facta probantia means facts which are in
the form of evidence. Any fact which is in the form of evidence and which
shall be used by the parties to prove the facta probanda shall not be
mentioned in the pleading.

 Plaint must contain a concise, i.e. brief facts that explain the
details of the case in short:
The last and final basic or fundamental rule which is also called the „rule of
brevity‟ requires that the pleadings are short, unambiguous and not
capable of multiple interpretations but only one interpretation that the
pleader desires to convey.

In Virendra Kashinath v. Vinayak N. Joshi[6], the court observed that

pleadings must be brief and niggling should be avoided. However, it does
not mean that essential facts need to be omitted or missed in an attempt
to achieve brevity. However, the court averred, if syntax errors and
drafting style is perfect, pleadings can be precise and legible.

Additional Rules for Drafting Plaint

Besides the above rules which apply on the plaint and written statement
equally, there is a certain sine qua non under Order 7 Rules 2 and 3 that
apply only to the plaint. There are several rules which are specific to the
documenting a plaint but these rules keep changing and amending
according to the decisions of the courts. The main four rules are:

1. Plaint ought to state the accurate amount of compensation claimed

by the plaintiff from the defendant.
2. A plaint must disclose every detail of the property in dispute to allow
authentic identification of property.
3. When the plaintiff has commenced the proceeding as a legal
representative, the plaint must contain particulars to show that the
representative has sufficient interest to commence the proceedings.
4. Plaint must contain a concise explanation for the reasons why there
was a delay in filing the plaint and why such delay should be condoned.
Now, these rules are discussed profusely as follows:

1. Plaint ought to state the accurate amount of compensation

claimed by the plaintiff from the defendant.
According to Order 7 Rule 2, a plaint must reveal or disclose the accurate
amount of damages claimed or accurate value or worth of the property
claimed as damages or relief for the suit. The amount of compensation
should be clearly mentioned and should not be vague.
15

The compensation must be mentioned both in numerical and in words to

avoid any sort of confusion and ambiguity and if the two figures are
different, the one mentioned in words are to be considered as accurate.
Moreover, if the exact or accurate amount of compensation cannot be
determined in the given circumstances of the case, for instance, in
situations of mesne profits, the approximate amount can be mentioned by
the plaintiff.

2. A plaint must disclose every detail of the property in dispute to

allow authentic identification of property.
Rule 3 of Order 7 requires that a plaint must disclose the identity of the
property in dispute (if the dispute is with respect to property) clearly and in
toto. The general rule or practice is that the plaint must contain a schedule
of property that describes the address of the property, the tehsildari,
registration and khatha number of the property.

Further, the areas in the vicinities of the property, i.e. on the four sides of
the property must be described to prevent and perplexity arising with
respect of the identification of the property.

3. When the plaintiff has commenced the proceeding as a legal

representative, the plaint must contain particulars to show that the
representative has sufficient interest to commence the proceedings.
Rule 3 further requires that if the plaint is filed by a person on behalf of
another as his/her legal representative, the plaint must contain pleadings
with respect to the locus standi of the person and must disclose whether
the person has the requisite interest to sue on behalf of the actual plaintiff.

For instance, if a director of a company files a plaint on behalf of the

company, it is essential to mention that the director had the authority to
sign the legal documents on behalf of the company. Therefore, a plaint
must contain the board resolution or power of attorney (as the case may
be) to prove that the person is authorized representative.

4. Plaint must contain a concise explanation for the reasons why

there was a delay in filing the plaint and why such delay should be
condoned.
Lastly, if the plaint is filed after the period of limitation and is barred by the
law of limitation from being admitted, the plaintiff must disclose the
reasons why the plaint has been delayed and the grounds on which the
delay is expected to be condoned. In general practice, a separate
application of condonation of delay is filed before the court along with the
plaint. However, it forms an essential part of the plaint.
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Reference:

1. Takwani C. K., Civil Procedure with Limitation Act, 1963, 7thEdition,

Eastern Book Company, Lucknow, 2013.
2. Sir D.F. Mulla, The Code of Civil Procedure, 19th Edition, Vol. 3,
Lexis Nexis, 2017.
[1] Order 6 Rule 1, Code of Civil Procedure, 1908.

[2] Order 6, Rule 2(1), Code of Civil Procedure, 1908.

[3] Kedar Lal v. Hari Lal, AIR 1952 SC 47.

[4] Union of India v. Sita Ram Jaiswal,

[5] Udhav Singh v. Madhav Scindia,

[6] Virendra Kashinath v. Vinayak N. Joshi, (1999) 1 SCC 47.

General Rules of Denial

Introduction
The Rule of denial is prescribed under Order VIII Rule 3, read with Rule 4
and 5, where the defendant is bound to deal thoroughly through each of
the issues; he must either deny or state the substance of each of the
issues. “The main allegations which form the foundation of the suit should
be dealt with in that way and expressly denied. Facts not specifically dealt
with will be taken to be admitted under Order 8 Rule 5 of the Code.”

Order VIII Rule 3

Denial to be specific – It shall not be sufficient for a defendant in his
written statement to deny generally the grounds alleged by the plaintiff,
but the defendant must deal specifically with each allegation of fact of
which he does not admit the truth, except damages.
The manner in which the allegations of fact in the plaint should be
traversed and the legal consequences flowing from its non-compliance
have been laid down in Badat & Co v. East India Trading
Co[1] , Sarwan Singh v. Kankar Singh[2] but the rule as to non–traverse
in written statement ought to be applied judiciously.[3]

It is to be noticed that defendant in a suit has to make specific denials of

the allegations contained in the plaint, “if his denial of a fact is not specific
but evasive, the said fact shall be taken to be admitted under Order 8 Rule
3” CPC.
17

The defendant must raise by his pleadings all matters which show that the
suit is not maintainable or that the transaction is either void or voidable in
point of law and all such grounds of defence as, if not raised, would be
likely to take the opposite party by surprise, or would raise issues of fact
not arising out of the plaint, under Order 8 Rule 2.[4]
The effect of this Rule along with Rules 4 and 5 is that the “defendant is
bound to deal specifically with each allegation of fact not admitted by him;
he must either deny or state definitely that the substance of each
allegation is not admitted.” It does not, of course, mean that every
allegation in the plaint should be reproduced at length in the written
statement for the purpose of denial. The main allegations which form the
foundation of the suit should be dealt with in that way and expressly
denied.

Such fact should be taken up separately as far as possible in the order

stated in the plaint and the defendant should either admit them or deny or
state definitely that he does not admit. “Facts not specifically dealt with will
be taken to be admitted.”[5]

It is often not enough for a party to deny an allegation in his opponent‟s

pleading; he must go further and dispute its validity in law or set up some
affirmative case of his own in answer to it. It will not serve his turn merely
to traverse the allegation; he must confess and avoid it. A defendant,
however, is not bound to admit an allegation which he seeks thus to avoid
or which he alleges to be bad in law. Any number of defences may be
pleaded together in the same defence, although they are obviously
inconsistent subject only to this, that embarrassing defence may be struck
out. (Under Order 6 Rule 16)[6]

English Rule
The English rule is that though it would be correct for the plaintiff to use
the word “and” when setting up a series of facts, defendant desiring to
deny each of these facts must either break the sentence up into a series
of sentences and deal separately with each or use the word “or” instead of
“and”. Thus if a plaintiff asserts:

The defendant broke and entered the said shop or seized, took and
carried away all the furniture, stock-in-trade and other effects which were
therein” the correct way of traversing will be:

The defendant never broke or entered the said shop or seized, took and
carried away any of the furniture, stock-in-trade; or other effects which
were therein[7]
This was approved in Gulab v. Govindram[8]. Pleading of “not-known” is
not tantamount to a pleading of not admitted.[9] Denial of knowledge of a
18

fact is not a denial of the fact, nor is it even putting the fact in
issue.[10] The expression “not admitted” is a specific denial.[11] It has,
however, been held only alleging that para 2 of the plaint is not admitted,
is not a specific denial of each allegation of fact in that para.[12]

An omnibus denial of all notices required to be served under the law is not
sufficient. Further, if notice is denied, no question can arise as to its
legality or validity.[13] Bare denial of adoption is a denial of the fact of
adoption and its validity. In a money claim, the defendant should say what
sum has been paid off and if the plea is in full satisfaction, it should be
distinctly stated.[14]

In a suit for damages, it is not necessary to deny specifically the damages

claimed; it is sufficient to plead generally.[15] Statement in an insurance
proposal not challenged by the Insurance Co. in a written statement as
incorrect cannot be investigated and no amount of evidence is admissible
to prove it.[16] An omnibus denial of service of all notices that are required
to be served can never be accepted as sufficient.[17] A plaintiff suing in
ejectment can only succeed on the strength of his own title. It is sufficient
that the plaintiff‟s title is denied in the written statement.[18]

A “written statement must deal specifically with each allegation of fact in

the plaint and when the defendant denies any such fact, he must not do
so evasively but answer the point of substance. If his denial of a fact is not
evasive, the said fact shall be taken to be admitted. In such an event, the
admission itself being proof, no other proof is” necessary.[19] Where the
plaintiff categorically stated in the plaint that he did not have any alternate
accommodation and such statement was not specifically denied by the
defendant in his written statement framing of a specific issue in that regard
is not necessary.[20]

Each fact alleged is required to be taken up separately and said that the
defendant admits it or denies it or does not admit it.[21] Where the truth of
the facts alleged in the plaint, though not specifically dealt with in the
corresponding para of the written statement was dealt in additional
pleadings, the allegations in the plaint must be considered to be
traversed.[22] Where a written statement is too vague and too general, it
is the duty of the Court to call upon the defendant to furnish definite
particulars of the plea even though the plaintiff does not seek
clarification.[23]

A plaintiff cannot complain if general and vague averment has been made
by him in his plaint or petition and by equally general and vague reply the
same is denied. In the absence of particulars in the plaint, all the
19

defendant can do would be simply to deny that there had been

discrimination.[24]

The denial must be specific in express terms definite and unambiguous. A

denial of the execution of Wakf deed coupled with an allegation that the
deed was a nominal, taken by undue influence and was never acted upon
will not come under the term “specific denial”.[25] An admission in the
pleading must be taken as a whole.[26]

Order VIII Rule 4

Evasive denial – Where a defendant denies an allegation of fact in the
plaint, he must not do so evasively, but answer the point of substance.
Thus, if it is alleged that he received a certain sum of money, it shall not
be sufficient to deny that he received that particular amount, but he must
deny that he received that sum or any part thereof, or else set out how
much he received. And if an allegation is made with diverse
circumstances, it shall not be sufficient to deny it along with those
circumstances.
A “traverse whether by denial or refusal to admit, must not be evasive but
must answer the point of” substance, for a traverse which is evasive “or
does not answer the point of a substance is not a specific traverse of the
allegation. Evasive denial is not sufficient. Allegation of fact must be
admitted clearly or denied boldly. The purport and effect of the denial must
be clear and distinct.”

A defense that the terms of the agreement were never definitely

agreed upon as alleged, was held evasive.[27] It is not at all sufficient
to say that the defendant does not admit the allegation in the plaint and
puts the plaintiff to the proof of them. The principle underlying this rule is
that pleadings should be specific.[28] General allegations in the plaint
cannot be said to be admitted because of general denial in a written
statement. [29]

Where the plaintiff specifically alleged that the tenancy commenced on the
first day of each calendar month, the defendant vaguely denied the same,
did not allege that the tenancy commenced on the 10th of each month, the
plaintiff‟s contention that the tenancy commenced on the first day of each
month was accepted and Court found accordingly.[30]

In the case of evasive denial or nonspecific denial by defendant/ appellant

of the plaintiff/respondent‟s case, there can be constructive
admission.[31]Evasive denials are deprecated and the points of defence
must be stated specifically and clearly. Evasive denials must be construed
as an admission.
 20

If the “denial of fact is not specific but evasive, the fact shall be taken to be
admitted. In such an event, the admission itself being proof, no other proof
is necessary. But under the proviso to rule 5 the court may, in its
discretion, require any fact so admitted to be proved otherwise than by
such” admission.[32] In other circumstance a leave to amend under Order
6, Rule 17 may be granted by the court, unless the defendant has acted
mala fide.[33]
By “point of substance” is meant the gist and meaning of the allegation
traversed, as distinct from details which are comparatively immaterial.
Thus it is evasive to plead: “defendant never offered a bribe of 500″, the
words “or any other sum” should be added.[34]

Order VIII Rule 5

Specific Denial – 1) Every allegation of fact in the plaint, if not denied
specifically or by necessary implication, or stated to be not admitted in the
pleading of the defendant, shall be taken to be admitted except as against
a person under disability: Provided that the court may in its discretion
require any fact so admitted to be proved otherwise than by such
admission,’

(2) Where the defendant has not filed a pleading, it shall be lawful for the
court to pronounce judgment on the basis of the facts contained in the
plaint, except as against a person under a disability, but the court may, in
its discretion, require any such fact to be proved.

(3) In exercising its discretion under the proviso to sub-rule (1) or under
sub-rule (2), the court shall have due regard to the fact whether the
defendant could have, or has, engaged a pleader.

(4) Whenever a judgment Is pronounced under this rule, a decree shall be

drawn up in accordance with such judgment and such decree shall bear
the date on which the judgment was pronounced.
Meaning of terms
 Necessary Implication – The words refer only to denial and not a
non-admission. They are intended to cover a case in which the particular
version set out in a written statement cannot probably co-exist with the
positive case made out by the plaintiff in a plaint.[35]
 Except as against a person under disability – The term “Person
under Disability” has not been defined in our Code. It means minors and
persons of unsound mind to which Order 32 applies. The rule has
nothing to do with the conduct of the suit afterwards. For instance, if at
the framing of the issues or at the trial the person representing the minor
defendants admits certain allegations of facts it cannot be said that r5
affects such admission.[36]
 21

 Proviso – In the case of admission by implication the rigour of the

rule has been modified by the proviso under which the Court may require
any fact so admitted to be proved by other evidence. The Court has the
discretion to require any fact so admitted by implication to be proved
otherwise by such admission.[37]
 Appeal – Against a decree passed under Order 8, Rule 8, the
remedy is by way of appeal and not restoration application under Order
9, Rule 13 CPC.[38]
 Remedy – Application under Order 9, Rule 13 for setting aside the
decree passed under Order 8, Rule 5 and 10 is not barred.[39]
Conclusion
The effect of Order 8 Rule 3 read along with Rules 4 and 5 of the Code is
that the defendant is bound to deal specifically with each allegation of fact
not admitted by him; he must either deny or state definitely that the
substance of each allegation is not admitted. The main allegations which
form the foundation of the suit should be dealt with in that way and
expressly denied. Facts not specifically dealt with will be taken to be
admitted under Order 8 Rule 5 of the Code.

Order 8 Rule 5 of the Code is known as the doctrine of non-traverse which

means that where a material averment is passed over without specific
denial, it is taken to be admitted. The rule says that any allegation of fact
must either be denied specifically or by necessary implication or there
should be a statement that the fact is not admitted. If the plea is not taken
in that manner, then the allegation should be taken to be admitted.

[1] AIR 1964 SC 538.

[2] AIR 1989 SC 606

[3] Hari Singh & Ors. v. Dharam Singh & Anr., AIR 1980 DEL 316

[4] Desi Kedari v. Huzurabad Cooperative Marketing Society Ltd., AIR

1994 AP 301

[5] ibid

[6] The Annual Practice (The White Book), (1965) p 374.

[7] Bullen & Leake, Precedents of Pleadings 444-45 (7th ed.).

[8] AIR 1959 MP 151

[9] Lakshmi v. Ramlal, AIR 1931 All 423

22

[10] Chettyar Firm v. Ko Lu Doke, AIR 1934 Rang 278

[11] Balaghat Husain v. Abid Bakhsh and Ors., AIR 1927 All 225

[12] Punit Rai and Anr. v. Mohammad Majid and Ors, AIR 1964 Pat 348

[13] Dharama Chand Roy v. Nabin Chandra Mondal, AIR 1963 Cal 253

[14] Musammat Bhagela Kuer. v. Abdul Rahman, 40 Ind Cas 79

[15] J.B. Ross and Co. v. C.R. Scriven, 34 Ind Cas 235

[16] Bal K.r v. New India Insurance Co. AIR 1959 Pat 102

[17] Dharama Chand Roy v. Nabin Chandra Mondal, AIR 1963 Cal 253

[18] Jagdish Narain v. Nawab Said Ahmed Khan, AIR 1946 PC 59

[19] Sambhaji Laxmanrao Pawar v. Abdul Wahed, 1995 (1) BomCR 608

[20] Hirendra Nath Basu v. Kshetra Mohan Dutta, 1997 SCC ONLINE CAL
309

[21] Binda v. United Bank of India, AIR 1961 Pat 152

[22] S K Abdul v. Union of India, AIR 1970 SC 479

[23] Faquir Buxv v. Thakur Prasad, AIR 1941 Oudh 457

[24] Union of India v. Pandurang, AIR 1962 SC 630

[25] Mohammed Sab Wallab Gafar Sab v. Abdul Gani Wallab Mohammed
Hayath, AIR 1985 Kant. 177

[26] Azgor Ali v. Reazuddin Miah, AIR 1989 Gauhati 74

[27] Thorp v. Holdsworth, (1876) 3 Ch. D. 637

[28] Narinder Singh v. C.M. King, AIR 1928 Lah 769.

[29] Habibbhai v. Pyarelal, AIR 1964 MP 62

[30] Ramchandra Jamnadas Kalariya v. Nuruddinbhai, AIR 2005 Bom.

107

[31] Dinesh K. Singhania v. Cal. Stock Exchange Ascocn. Ltd., (2005) 2

CHN 601

[32] Badat & Co. v. East India Trading Co. AIR 1964 SC 5381.
23

[33] Tildersley v. Harper, (1878) 10 Ch D 393

[34] ibid

[35] M. Gordhandas & Co. v. D Arvind Mills, (1974) 76 BOMLR 119

[36] Naggapa v. Sadalingappa, AIR 1919 Mad 698

[37] Sarala v. Birendra, AIR 1961 MP 127

[38] Tejbai Tejshi v. Gangabai Dinanath Ulvekar, 2002 (1) BomCR 109

[39] Shantilata Patnaik v. London Baptist Mission Corporation, (2001) 1

CCC 446

Limitation for Filing Written Statement under CPC

In a civil suit, the defendant has to file a written statement within a

specified time period. The limitation for filing a written statement has
undergone several changes since the CPC came into force. This article
endeavours to examine the limitation of filing the written statement and
judicial pronouncements on the same.

I. Limitation to File Written Statement under CPC

A written statement is a document filed by a defendant to a suit against
the plaint filed by the plaintiff. According to the basic procedure, after the
plaintiff has filed the plaint, s/he is supposed to issue summons upon the
defendant to allow him/her to file the written statement.

According to Order VIII, Rule 1, a written statement must be filed within

30 days from the date of receipt of the summons by the defendant. It has
to be noted that the time of limitation does not commence with the date of
issue of summons but from the date of receipt of summons. Further, this
period can be extended by the court at its discretion and for reasons
which the court must provide in writing. However, the period cannot be
extended beyond 90 days.

Now, this provision and the limitation to file written statement has been a
matter of debate for a very long time and has also been subjected to
several amendments. Before 1999, it was observed by courts that the
24

defendants do not file their written statements for more than 120 days or
even sometimes for 6 months and the courts kept extending the time limit
in the absence of any strict provision to curtail the same. This resulted in
injustice to the plaintiff, delay in proceedings and piling up of a huge
number of cases before the courts.

Hence, in 1999, an amendment was brought to the Civil Procedure Code

and Rule 1 was amended. After the amendment of 1999, the statute
required the defendants to file written statements within a period of 30
days from the receipt of summons. Though the provision was the need of
the hour, it was not very successful because of the extremely stern
requirement. There were genuine reasons for defendants to not be able to
file a written statement within 30 days, so the courts were helpless.

In 2000, a major amendment was brought to the Code and the present
provision was enacted as it stands today. Through the amendment of
2000, the period of 30 days was left unchanged but the courts were
provided discretion to increase the time for a maximum period of 90 days
and also record the reasons for doing the same. This enabled sufficient
time to defendants who genuinely require more time.

II. Limitation for Commercial Disputes

Rule 1 provides the time period of 30 days to file a written statement
which can be extended to 90 days by the courts in any civil dispute.
However, this provision does not apply in commercial disputes and
several changes have been made in this regard. According to the proviso
annexed to Rule 1, in case of a commercial dispute, the period of 30 days
can be extended by the courts for a maximum of 120 days instead of 90
days as required in other civil disputes.

Further, if the defendant, in a commercial dispute, does not file the written
statement within the prescribed 30 days, the court can also levy cost upon
the defendant at its discretion. Moreover, if the defendant fails to file the
written statement within 120 days, the court may prohibit the defendant
from filing it any later stages. It means that the right to file a written
statement will be forfeited and the defendant will have no documents on
record.

III. Delay in Filing Written Statement

The question that arises is whether the defendant can file an application of
condonation of delay in case s/he has not filed the written statement within
the extended period as well. With respect to this question, in Ramesh
Chandra v. Punjab National Bank[1], there was a delay in filing of the
written statement.
 25

The court observed that the defendant deliberately attempted to delay the
disposal of suit and the reasons assigned for the delay is not at all
satisfactory. Therefore, the court held that such actions should be
prevented and hence, the court levied a cost of Rs. 2,00,000 upon the
defendant subject to the payment of which, he could file a written
statement and the delay will be condoned.

In Shaikh Salim Haji Abdul Khavimsab v. Kumar[2], the apex court held
that the Court has the necessary authority and carte blanche power to
condone the delay and allow the filing of the written statement even
beyond the prescribed time of 90 days.

The provision though negatively worded is procedural and procedural laws

require liberal interpretation. It does not deal with the power of Court or
provide consequences of non-extension. It can, therefore, be read as a
directory. However, the court noted that such extension beyond 90 days
should be made a regular practice and can be given in only exceptional
circumstances if the defendant shows reasonable cause for the delay.

The same was held in several cases[3]. It has been held by the Supreme
Court that a written statement should be artistically drafted keeping in view
the real distinction between the pleas taken[4].

In its recent judgment in Sandeep Thapar v. SME Technologies[5], the

Supreme Court adjudged that the time limit under O. VIII R. 1, has to be
observed, but in exceptional circumstances. In order to ensure that
injustice is not done, the time can be extended by the courts with
satisfactory reasons to be mentioned in writing. When the delay is
occasioned by reasons beyond the control of the defendant, then the court
ought to permit the party to file a written statement beyond the period
prescribed in O VIII, R. 1 of the Code.

IV. Limitation of Filing Written Statement under the Limitation Act

The Limitation Act, 1963 („the Act of 1963‟) contains the periods of
limitation that applies in different kinds of proceedings, the method of
computing the prescribed period and the consequences adjoining breach
of such period. Section 2(j) of the Act of 1963 defines the period of
limitation as the period prescribed in the annexed Schedule.

The limitation applies in respect of all applications, which include

petitions as well 1 filed by all applicants which include –

 a petitioner;
 any person from or through whom an applicant derives his right to
apply;
 26

 any person whose estate is represented by the applicant as

executor, administrator or other representatives;
Section 3 of the Act of 1963 imposes a blanket ban on accepting any
suit, appeal or application after the prescribed time, computed with
respect to Sections 4 to 24 of the Act, is over. However, no legal
consequences apart from dismissal are listed herein. This ban is not
absolute and is saved by Section 5 which allows any court to condone
such delay in filing an appeal or an application if „sufficient cause‟ may be
shown by the applicant. Various judgments have held that this discretion
is not to be exercised in a passing manner and a satisfactorily explained
cause of delay is a sine qua non for the same.

Several exclusions, extensions and methods of computations exist

with respect to the period of limitation of filing a written statement in
a suit. A brief list of the same may be such –

 The period of disability of an applicant before the commencement of

the period of limitation halts the computation and the period begins after
such disability(ies) have passed. This disability includes being a minor.
The death of an applicant transfers the right to file the statement to the
legal representatives within such time as was available to the person if
he had not died[6].
 The reasonable time for obtaining a copy of the decree, order,
judgment or award of any court which is pertinent to the subsequent
filing of a statement is excluded from computation[7].
 The time undergone in proceedings held bona fide before a court
which by reason of procedural incapacity or irregularity cannot entertain
proceedings on such application is excluded[8].
V. Limitation under Special laws How Affected
As per Section 29(2), when any period of limitation different from one
prescribed under this act is given under any special or local law, the
provisions from Section 3 shall still apply as if the period was prescribed
under this act itself. The provisions for computation shall also apply to the
extent they are not expressly excluded by the special or local law.

1. P. Jain, The Code of Civil Procedure and Limitation Act, 5th ed.
2020.
2. Mulla, The Code of Civil Procedure, 18th 2017.
3. Sarkar, Code of Civil Procedure, Vol. 1 (12th 2016).
[1] AIR 1990 SC 1147

[2] AIR 2006 SC 396

27

[3] Salem Advocate Bar Assn. v UOI, AIR 2005 SC 3353; Rani Kusum v
Kanchan Devi, AIR 2005 SC 3304 and Tukaram Shuke v Prakash
Kallappa Awade, AIR 2006 Bom 55

[4] C Abdul Shukoor Saheb v Arji Papa Rao, AIR 1963 SC 1150

[5] Sandeep Thapar v SME Technologies Pvt Ltd, AIR 2014 SC 897

[6] Section 2(b), Limitation Act, 1963

[7] Section 8, Limitation Act, 1963

[8] Section 12, Limitation Act, 1963

Doctrine of Non-Traversal

Introduction
The doctrine of Non-Traversal under Order VIII Rule 5 is a settled position
of law. It provides that, if an allegation made in the plaint is not specifically
denied or by necessary implication in a written statement, it is treated as
admitted. Furthermore, if a fact is clearly asserted in the plaint, and
supported by a witness in cross-examination, and there is no denial of the
said fact, nor nonexistence of such fact put to the witnesses in cross-
examination, such fact will be held to be proved.[1]

The object of the rule is to narrow the issues to be tried in the case and to
enable either party to know what real point is to be discussed and
decided.
A plea that the defendant does not admit any of the allegations in the
plaint except such as have been expressly admitted and that he puts the
plaintiff to the proof of allegations not admitted is not a sufficient denial
within the meaning of this rule. Thus, every allegation so denied will be
deemed to have been admitted.[2]

Applicability
Although the provisions of Rule 5 apply to suits and execution
proceedings it does not apply to petitions under Article 226 or 227 of the
Constitution, the general principles relating to pleadings and failure to
traverse averments in a petition would apply to such petitions.[3]

In divorce cases, the court usually proceeds on the rule of prudence and
not on the requirement of law.[4]

Relation between Rule 3, 4, 5 and 10

In the landmark judgement of Badat & Co. v. East India Trading
Co.,[5] Justice Subba Rao stated,
28

“These three rules form an integrated code dealing with the manner in
which allegations of fact in the plaint should be traversed and the legal
consequences flowing from its non- compliance.

The written statement must deal specifically with each allegation of fact in
the plaint and when a defendant denies any such fact, he must not do so
evasively but answer the point of substance. If his denial of a fact is not
specific but evasive, the said fact shall be taken to be admitted. In such an
event, the admission itself being proof, no other proof is necessary.”
Again, in Balraj Taneja v. Sunil Madan,[6] referring to relevant rules of
Order 8, the court held “that at no stage the court can act blindly or
mechanically. The court has not to act blindly upon the admission of a fact
made by the defendant in his written statement nor should the court
proceed to pass judgement blindly merely because a written statement
has not been filed by the defendant traversing the facts set out by the
plaintiff in the plaint filed in the court.

It is a matter of the court‟s satisfaction and therefore, only on being

satisfied that there is no fact which need be proved on account of deemed
admission, the court can conveniently pass a judgement against the
defendant who has not filed the written statement. But if the plaint itself
indicates that there are disputed questions of fact involved in the case
regarding which two different versions are set out in the plaint itself, it
would not be safe for the court to pass judgement without requiring the
plaintiff to prove the facts as to settle the factual controversy.”

Facts not denied specifically

Rule 5 relieves the plaintiff from proving allegations and averments made
in the plaint if they are not denied specifically or by necessary implication.
So, refusal to admit the facts also must be express and specific. General
or ambiguous denial is no denial at all.[7]

Thus, contention in the written statement that the defendant does not
admit any of the averments in the plaint except such as have been
expressly admitted cannot be said to be sufficient denial within the
meaning of this rule.[8] Similarly, denial of knowledge of a particular fact is
not the denial of the fact and will not have the effect of putting the fact in
issue.[9] Therefore, where the defendant contends that the allegation is
baseless and needs no reply, there is no denial of fact averred in the
plaint.[10]

It is, however not necessary that each and every allegation in the plaint
should be reproduced in the written statement and denied.[11] The main
allegations which form the foundation of the suit should be dealt with and
clearly denied.
29

All such facts and averments should be taken up separately and should
either be admitted or denied by the defendant.[12] Again, numerical denial
of a particular paragraph of the plaint is a matter of form and not of
substance. For deciding whether a statement in the plaint has been
denied or not, the plaint should be read as a whole.[13]

Distinction between Denial and Non- Admission

When a party does not admit an averment, he intends and insists that the
other party prove the averment. But when he denies such averment, he
not only requires the other side to prove it but contends that such fact had
never happened.[14]

Again, a party can deny an allegation of fact when it is within his

knowledge but does not admit when he is not aware of such fact. In either
case, the effect is that the allegation would not be deemed to be
admitted.[15]

Stated To Be Not Admitted

As the facts are not limited to specific denials or admission, the refusal to
admit must be clear, specific and expressed. In the absence of such a
statement in the reply of the defendant, the factual averments in the plaint
will be deemed to have been admitted by the defendant.[16]

The rule of non-traverse in the written statement should not be applied

mechanically. It is not a rule of thumb to be followed blindly. The court
must be careful and circumspect and apply it after application of mind.[17]
Question of Law
Though pure questions of fact, as well as mixed questions of law and fact,
should be pleaded in the pleadings by a party raising such questions, a
pure question of law need not be pleaded.

If all the facts have been placed on record by a plaintiff in his plaint or by a
defendant in his written statement without deducing legal position, the
court should not reject the pleading. It is the duty of the court to apply the
law to the facts on record and to decide the case in accordance with the
law.[18]
However, the position of foreign law is different. The maxim “Everyone is
presumed to know the law” does not apply to foreign law. It stands on the
same footing as facts, therefore, require to be pleaded.[19]

Pleadings in Indian Courts

It is well settled that pleadings in India and particularly in lower courts are
not artistically drafted. Therefore, laxity is tolerable in the interest of
justice. Supreme Court in Mohinder Singh v. Data Ram,[20] held that in an
additional written statement, a counter-claim was pleaded by the
 30

defendant. As necessary requisites of the plaint (as such written

statement was virtually a plaint in a cross-suit).

It was contended by the plaintiff that the same was liable to be rejected.
Observing, the averments the court stated:

“It is true that the additional written statement is not artistically drafted, but
in India it is difficult to apply strict rules of interpretation to pleadings in the
lower courts.”
However, the above principle does not extend to pleadings in High Courts.
Justice Subba Rao in Badat & Co. v. East India Trading
Co.,[21] “observed that laxity in mofussil pleadings can be tolerated but
the said rules do not apply to the Original Side of the Bombay High Court
as the pleadings are drafted by trained lawyers bestowing serious thought
and with precision.”

Position in English Law

There is a difference in the legal position under English law and Indian
law. in England, the rule as to admission by non-denial of fact is stringent.
If the defendant omits to traverse an averment made by the plaintiff in the
statement of claim, he cannot be permitted to traverse it at the time of trial.

In India, the pleadings are not construed strictly. So, even if the defendant
has not denied the allegation of the plaintiff in his written statement, the
court may require the plaintiff to prove such fact at the hearing of the
suit.[22]

Landmark Judgements on the Doctrine of Non-Traversal

1. In Food Corporation of India v. Municipal Committee,
Jalalabad,[23] no challenge was made to the averments made that
assessment of property tax was based on agreed fair rent. It was held that
it cannot be contended that the agreed rent was not fair rent and the
provision relating to fixation of annual letting value had been violated.
2. In Lohia Properties Pvt. Ltd. v. Atmaram
Kumar,[24] A terminated the tenancy of B by issuing a notice. Service of
notice terminating tenancy of defendant B had been specifically alleged in
the plaint by the plaintiff A. in written statement B stated „That the notice of
ejectment as referred in the plaint is not according to the law”. The court
invoked Rule 5 and hed that the reply constituted an implied admission on
the basis of which a decree could be passed.
3. In Mahendra Manilal Nanavati v. Sushila Mahendra
Nanavati,[25] the Apex Court observed that the court usually does not
decide a question of divorce merely on the basis of admissions of the
parties. It is a rule of prudence and not a requirement of law. it does not
mean that the court has no power to consider the relevant provisions of
 31

law. the court can, therefore, make an order keeping in view the
provisions of Order 8 Rule 5 of the code. Such an order can be said to be
in accordance with the law.
4. Supreme Court in Balraj Taneja v. Sunil Madan,[26] A filed a suit
for specific performance of the contract against B. B never filed a written
statement and the suit filed by A was, therefore, decreed. Supreme Court
then set aside the decree observing that even if B had not filed a written
statement, the court was bound to apply its mind, to consider the facts and
circumstances as to whether A was ready and willing to perform his part of
the contract and whether the case was a fit one to pass a decree of filing a
written statement.
Conclusion
According to the above views, the Doctrine of Non-Traversal was of
construction of pleadings and could apply to a defendant‟s pleading. If one
has not filed a written statement, he could not be said to have admitted
any allegation in the plaint and the court had no power to pass a decree
on the basis of averments in the plaint. An omission to file a written
statement does not amount to an admission of facts stated in the plaint.

In certain circumstances, if the plaintiff makes allegations of fact in his

plaint and the defendant does not deny them by filing his defence, the
court can treat such allegations as admitted and can pass a decree on the
basis of the facts stated.

[1] Standard Chartered Bank v. Andhra Bank Financial Services Ltd.,

(2016) 1 SCC 207

[2] PP Abubacker v. Union of India, AIR 1972 Ker 103

[3] Abodha Kumar v. State of Orissa, AIR 1969 Ori 80

[4] Mahendra Nanavati v. Sushila Nanavati, AIR 1965 SC 364

[5] AIR 1964 SC 538

[6] (1999) 8 SCC 396

[7] Tek Bahadur v. Debi Singh, AIR 1966 SC 292

[8] Harris v. Gamble, (1878) 7 Ch D 877

[9] Abdul Hamid v. Nur Mohd., AIR 1976 Del 328

[10] Asha v. Baldev, AIR 1985 Del 76

32

[11] Nilkanth v. Gopaldas, AIR 1963 MP 230

[12] Naseem Bano v. State of UP, 1993 Supp (4) SCC 46

[13] K.C. Kapoor v. Radhika Devi, (1981) 4 SCC 487

[14] Halsbury‟s Laws of England, Vol. 22 pg.429

[15] Nimar Cotton Press v. STO Khandwa, AIR 1956 Nag 27

[16] Tek Bahadur v. Debi Singh, AIR 1966 SC 292

[17] Hari Singh v. Darshan Singh, AIR 1980 Del 316

[18] Robinson Price v. Richardson, (1927) 1 KB 448

[19] Ascherberg Hopwood v. Casa Musicale Sanzognodi, (1971) 3 All ER

38

[20] AIR 1972 SC 1048

[21] (1964) 4 SCR 19

[22] Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396

[23] AIR 1999 SC 2573

[24] (1993) 4 SCC 6

[25] AIR 1965 SC 364

[26] AIR 1999 SC 3381

Joinder, Re-joinder and Misjoinder

Introduction – Joinder, Re-joinder and Misjoinder

Order 1 of the Code of Civil Procedure provides for Joinder and
Misjoinder. Whereas Rule 1 deals with joinder of plaintiffs, Rule 3 deals
with joinder of defendants. And Rule 9 deals with Misjoinder and Non-
Joinder of parties.

Order 8 Rule 9 deals with the Re-joinder of parties which provides for a
second pleading by the defendant in reply to replication filed by the
plaintiff.
 33

I. Joinder
The joinder of parties may arise either as regards the plaintiffs under Rule
1 or as regards the defendants under Rule 3. Where an act is done by a
single individual or adversely affects another single individual, there is no
question of joinder of parties. But where an act is done by two or more
persons or it adversely affects two or more persons, a question of joinder
of plaintiffs or joinder of defendants would arise. Both the rules thus relate
to joinder of parties and should be read together.

The rule to allow several plaintiffs or defendants to join in one suit if the
following are satisfied-

1. A right to “relief arising out of the same act or transaction or series

of acts or transactions;
2. A common question of law and fact.”
It is neither necessary that every plaintiff or defendant should be
interested in the entire subject-matter of the suit,[1] nor that all questions
arising in the suit must be common to all suits had the plaintiffs brought
separate suits.[2] It is sufficient even if one question of law or fact is
common.[3] It is not essential that all plaintiffs should have the same or
similar cause of action. It is enough if the right arises out of the same act
or transactions or series of acts or transactions.

Whereas Order 1 relates to joinder of plaintiffs and defendants (parties to

suit), Order 2 relates to joinder of causes of action (frame of suit). Order 2
Rule 3 deals with joinder of causes of action. Both the orders though
relate to two different subjects, they are interdependent. A question of
parties to suit also involves a question of the cause of action and vice
versa. Therefore, both the orders have to be read together.[4]

The simple principle is that a person is made a party in a suit there is a

cause of action against him and when causes of action are joined, the
parties are also joined.[5]

The word “in respect of the same act or transaction” is wider than
the words “in respect of the same cause of action”.[6] So, even where
the relief is not claimed on the same cause of action, joinder of plaintiffs
may be allowed if such right to relief is based on the same act or
transaction.[7] The test of joinder of plaintiffs under Rule 1 is not the
identity of the cause of action but the identity of the act or transaction of
which the right of relief arises.[8]

In the circumstance of the same act or transaction or series of acts or

transactions give rise to the relief of two or more persons severally, they
may be joined as plaintiffs in one suit under this rule. But since the
34

provision is an enabling one, and not obligatory, it is open to one or more

of such persons to bring separate suits also.[9] And if such separate suits
are filed, they cannot be dismissed on the ground that they are not
maintainable.[10]

Where a suit is brought against several defendants jointly and the relief
against one of the defendants is merely ancillary, the suit is not bad for
misjoinder.[11] Thus, where A and B are co-sharers of certain lands, in
possession of C and D and A brings a suit against B, C and D claiming
relief of ejectment of C and D and partition of his share as against B, the
claim against B is merely ancillary to the main relief sought against Ca
and D, which cannot be properly worked out without partition of A‟s share.
Hence, B may be joined as a party defendant.[12]

II. Misjoinder
The “joinder of any person as a party to a suit contrary to the provisions of
the code is called misjoinder. Misjoinder may be misjoinder of plaintiffs;
misjoinder of defendants and misjoinder of the cause of actions.” Rule 9
states that no suit shall be dismissed by reason of misjoinder or non-
joinder of parties and it will be decided on merits.

As a general rule, a suit cannot be dismissed merely on the ground of

misjoinder of parties. A defect as to misjoinder of parties (or causes of
action) does not affect the jurisdiction of the court, nor it touches the
merits of the matter. Normally, a court of law is required to decide the suit
on the basis of controversy raised by the parties as regards the rights and
interests and not on technicalities, such as misjoinder or non-joinder of
parties.[13]

However, all necessary parties must be before the court. In the absence
of a necessary party, a suit cannot be decided at all. Hence, if a
necessary party is not joined, the defect is not merely a formal one but
goes to the root of the matter.[14]

The provisions of Rule 9 are general and apply to all proceedings subject
to “any special or local law, or a special form of procedure prescribed by
any other law for the time being in force.[15]”

Rule 9 is merely a rule of procedure. it does not affect substantive law. the
provisions of Rule 9and 10 seek to give effect to substantive law by laying
down procedure. they in no way affect an enforceable right already
accrued in favour of the parties under the relevant law in force.[16]

The Full Bench of the High Court of Allahabad in Benares Bank Ltd. v.
Bhagwandas,[17] “laid down two tests for determining the question of
whether a particular party is a necessary party to the proceeding:
 35

1. There must be a right to some relief against such party in respect of

the matter involved in the proceedings in question; and
2. It should not be possible to pass an effective decree in the absence
of such a party.”
Udit Narain v. Board of Revenue,[18] is a leading decision on the where
certain orders were passed by the Commissioner as well as by the Board
of Revenue in favour of X and Y. those orders were challenged by A by
filing a petition in the High Court. Though initially X and Y were joined as
respondents, their names were struck off.

In an appeal to the supreme court, it was contended that X and Y were not
only proper parties but were necessary parties inasmuch as orders were
passed in their favour by the authorities. The question before the Apex
Court was whether X and Y were necessary parties. The court replied the
question in the affirmative and dismissed the appeal in the absence of
necessary parties, drawing the distinction between “necessary party” and
“proper party”

A necessary party is one without whom no order can be made effectively;

a proper party is one in whose absence an effective order can be made
but whose presence is necessary for a complete and final decision on the
question involved in the proceeding.

In Kankarathanammal v. Loganatha Mudaliar,[19] the property in

dispute was purchased by the husband in the name of his wife. A suit was
filed by a daughter without joining sons (brothers) who were entitled to
inherit property along with daughter (sister). Though an objection was
raised that brothers were necessary parties, no steps were taken either in
the trial court or in the High Court. Even in appeal before the Supreme
Court, they were not joined. The matter was then heard by the Supreme
Court on merits. At that belated stage, an application to implead brothers
was moved.

Rejecting the prayer of impleadment, the court said

“We do not think there is any justification for allowing the appellant to
amend her plaint by adding her brothers at this late stage. We have
already noticed that the plea of non-joinder had been expressly taken by
Respondent No. 1 and 2 in the trial court and a clear and specific issue
had been framed in respect of this contention. While the suit was being
tried, the appellant might have applied to the trial court to add her
brothers, but no such application was made.

Even after the suit was dismissed by the trial court on this ground it does
not appear that the appellant moved High Court and prayed that she
 36

should be allowed to join her brothers even at the appellate stage, and so,
the High Court had no occasion to consider the said point. As no such
application was made even to this court until the appeal was allowed to
stand over after it was heard. Under the circumstances, we do not think it
would be possible for us to entertain the said application.”
Rule 13 enacts that all objections on the ground of misjoinder of parties
should be taken at the earliest possible opportunity, otherwise they will be
deemed to have been waived.

III. Rejoinder
It is a procedure to allow any party to present a written statement or
additional written statement, subsequent to the written statement by a
defendant (other than by way of set-off or counter-claim).

The primary object of subsequent pleading is to supply what might have

been omitted inadvertently or unintentionally or to deny or clarify the facts
stated in the pleading of the opposite party. In case of the fresh cause of
action or fresh case not brought out in the previous pleading cannot be
brought on record by an additional pleading.[20]
This rule lays down an important rule of pleading that no pleading
subsequent to the written statement of a defendant (other than set-off or
counter-claim) can be presented without the leave of the court.[21] Such
leave need not necessarily be in writing. It may be obtained orally.[22]

Normally, a party intending to file an additional pleading must file an

application stating therein the reason why he failed to state certain facts in
the original pleading and why he should be allowed to file an additional
pleading.[23] The court, on such application should issue notice to the
other side and afford an opportunity to oppose the prayer and decide the
application by allowing or rejecting the application.[24]

There is no provision in the code under which a party may claim to

present additional pleadings as of right. The rule confers a very wide
discretion on the court and enables it to accept an additional pleading at
any time and upon such terms as it thinks fit.[25]

In State of Rajasthan v. Mohd. Ikbal,[26] the Rajasthan High Court laid

down the following principles allowing the plaintiff to file additional
pleadings:

1. The plaintiff cannot be allowed to introduce new pleas by way of

filing a rejoinder, so as to alter the basis of his plaint.
2. In rejoinder, the plaintiff can be permitted to explain the additional
facts which have been incorporated in the written statement.
 37

3. The plaintiff cannot be allowed to come forward with an entirely new

case in his rejoinder.
4. The plaintiff cannot be permitted to raise inconsistent plea so as to
alter his original cause of action.
5. Application under Order 8 Rule 9 CPC cannot be treated as one
under Order 6 Rule 17 CPC as both are contextually different.
An order allowing or rejecting an additional pleading to a plaintiff or
defendant cannot be said to be “decree” and therefore not appealable, but
the same can be revisable under Section 115 of the Code.[27]

[1] Mohd. Khalil v. Mahboob Ali, AIR 1942 All 122

[2] Haru Bepari v. Kshitish, AIR 1935 Cal 573

[3] Krishna v. Narsinghrao, AIR 1973 Bom 358

[4] Ishwar Bhai v. Harihar, AIR 1999 SC 1341

[5] Johar Roy v. Premji Bhimji, (1977) 4 SCC 562

[6] Gangi v. Ramaswami, (1902) 25 Mad 736

[7] Labhsang v. Sunam Ram, AIR 1977 HP 23

[8] Shripati Pandu v. Bhau Ganapati, 1978 Mah LJ 345

[9] Basharat v. Harilal, AIR 1932 All 401

[10] Chitui Naga v. Onhen Kuki, AIR 1984 Gau 62

[11] Kamala Prasad v. Chamanlal, (1962) 66 Cal WN 391

[12] Sri Raja Simhadri v. Prattipati Ramayya, (1906) 29 Mad 29

[13] Naba Kumar v. Radhashyam, AIR 1931 PC 229

[14] Adiveppa v. Rachappa, AIR 1948 Bom 211

[15] Madan Lal v. Munshi Datu, AIR 1956 Pepsu 80

[16] Reddy v. Golla Obulamma, AIR 1971 AP 363

[17] AIR 1947 All 18

[18] AIR 1963 SC 786

38

[19] AIR 1965 SC 271

[20] State of Rajasthan v. Mohd. Ikbal, AIR 1999 Raj 169

[21] Rohan Lal v. Prem Prakash, AIR 1980 Pat 59

[22] Dayananda v. Vatal, (1972) 2 Mys LJ 328

[23] Nanjan v. Selai, AIR 1958 Mad 383

[24] Velji v. Samji, AIR 1952 Kut 27

[25] Kalipada v. Surendra Nath, AIR 1975 Pat 24

[26] AIR 1999 Raj 169

[27] Binda Prasad v. United Bank of India, AIR 1961 Pat 152

Misjoinder of Causes of Action - Multifariousness

Misjoinder of parties or causes of action has been regarded under the

code as a mere irregularity. So, neither a suit will be dismissed on the
ground of misjoinder of parties or causes of action, nor a decree can be
reversed or substantially varied in appeals.

Introduction
Joinder of causes of action is laid down under Order 2 Rule 3 of
CPC which provides that the court has the power to order separate trials
of different issues arising in a suit where several causes of action have
been properly joined. The convenience or inconvenience of the parties is
immaterial. If a case is covered by this rule, the court may order separate
trials if it finds inconvenient to try different causes of action in one suit.
 39

The first part of Rule 3(1) deals with cases of a plaintiff uniting in one suit
several causes of action against the same defendant or defendants jointly,
the second part relates to causes of several plaintiffs uniting in one suit
several “causes of action in which they are jointly interested against the
same defendant or defendants jointly.”

Rule 3(2) clarifies that where several causes of action have been united in
one suit, the jurisdiction of the court will depend on the aggregate value of
the subject-matter of the suit.

One Plaintiff or Defendant and Several Causes of Action

The “plaintiff is at liberty to unite in the same suit several causes of action
where there is only one plaintiff and one defendant. But if it appears to the
court that the joinder of causes of action may embarrass or delay the trial
or is otherwise inconvenient, the court may order” separate trials.[1]

One Plaintiff, Two or More Defendants and Several Causes of Action

Where there are one plaintiff and two or more defendants and several
causes of action, the plaintiff may unite in the same suit several causes of
action against those defendants, if the defendants are jointly interested in
the causes of action. Therefore, two or more defendants can be joined in
one suit, provided the following two conditions are fulfilled-

1. The relief claimed must have been based on the same act or
transaction; (or a series of acts or transactions); and
2. Common questions of law or fact must have been involved.[2]
In Haramund v. Prasunno Chunder[3], A sold certain properties to B.
After the sale, all the properties were attached in execution of a decree
obtained by C against A, and were sold in execution to D, E and F. A suit
was filed by B against A, C, D, E and F for setting aside execution sale. It
was held that the sale is not bad for multifariousness as all the defendants
must be interested and liable jointly in each of the causes of action in the
suit.

Similarly, in In Re D. Lakshminarayana Chettiar and anr.,[4] the full

bench of Madras High Court observed that

“Ordinarily every cause of action must be a basis for a single suit, but
several causes of action may be united in one action.”
The court held if a defendant executed two promissory notes in favour of a
plaintiff, where one suit can be instituted for the recovery of the amounts
due under the two promissory notes. But if several defendants jointly
borrow money on different promissory notes from a plaintiff, he can file
one suit for recovery of the amount due to him from all the defendants
jointly. In the same manner, if the plaintiffs are joint promises in respect of
40

different promissory notes from the same defendant singly or same

defendants jointly, one suit could be filed.

Misjoinder of Plaintiffs and Causes of Action

Order 2 Rule 3 enacts that where two or more “plaintiffs are jointly
interested in two or more causes of action against the same defendant or
defendants, they may join all such causes in one suit.” However, this rule
has to be read subject to the provisions of Order 1 Rule 1 which permits
joinder of plaintiffs in one suit if their right of relief arises out of the same
act or transaction or series of acts or transactions, and common questions
of fact or law arising in the suit.[5]

Thus, where the right to relief does not arise out of the same act or
transaction or series of acts or transactions or common question of law or
fact are not involved in the suit, the plaintiffs cannot unite in one suit
several causes of action and the suit will be bad for misjoinder of plaintiffs
and cause of action.[6]

Misjoinder of Defendants and Causes of Action

This rule permits a plaintiff to join in the same suit two or more causes of
action against two or more defendants if the defendants are jointly liable.
Joint “interest in the main questions raised in the litigation is a condition
precedent to the joinder of several causes of action against several”
defendants.[7]

Order 1 Rule 3 allows joinder of defendants in one suit if the right of relief
claimed is based on the same act or transaction or series of acts or
transactions, and common questions of fact or law arising in the suit.[8]

In Raja Ram Tewari v. Lachman Pershad,[9] C.J. Barnes Peacock

stated:

“Joinder in one suit of distinct causes of action against different

defendants, each of whom is unconnected with the cause of action
against the other, complicates the case before the judge, and renders it
exceedingly difficult for him in dealing with the case of each defendant to
exclude from his consideration those portions of the evidence which may
not be admissible against him, though admissible against one or more of
the others.”
Moreover, it is vexatious and harassing to the different defendants. even it
is harassing and inconvenient to the witnesses of defendants, as each
witness has to be present whilst the case is being heard and determined.
41

A suit against two or more defendants on two or more causes of action

accrued against the defendants separately when such defendants are
jointly liable is bad for misjoinder of defendants and causes of action, it is
known as multifariousness.

In a case of a suit of recovery of loan advanced on an overdraft account,

the agent was arrayed as a defendant alleging that he had acted in
excess of his authority, and the Managing Director was also joined as a
defendant on the ground that he had approved the action of the agent, it
was held that the suit was bad as there was multifariousness.[10]

In Jaswantrai v. Vimal,[11] the suit filed by husband against his wife for
divorce on the ground of adultery, a claim for damages against the
adulterer cannot be made as he cannot be joined as a defendant.

Misjoinder of Plaintiffs, Defendants and Causes of Action

Where there are two or more plaintiffs or defendants and several causes
of action, the plaintiffs may unite the causes of action against the
defendants in the same suit only when all the plaintiffs are jointly
interested in the causes of action and the defendants are also jointly
interested in the causes of action. if the plaintiffs are not jointly interested
in the causes of action, the suit will be bad for misjoinder of plaintiffs and
causes of action.

On the other hand, if the defendants are not jointly interested in the
causes of action, the suit will be bad for multifariousness. And if neither
the plaintiffs nor the defendants are jointly interested in the causes of
action, the suit will be bad for double misjoinder, i.e. misjoinder of plaintiffs
and causes of action and misjoinder of defendants and causes of
action.[12]

Objection
When an objection is taken as to misjoinder of parties or causes of action
at an appropriate stage, the court may permit the plaintiff to elect as to
which of them will proceed with the suit as filed in case of misjoinder of
plaintiffs or against which of the defendants in the case of misjoinder of
defendants, or with which of the causes of action in case of misjoinder of
causes of action.[13]

The court may either allow the amendment or withdrawal of suit with
permission to file a fresh suit on the same cause of action.” such
amendment can be granted at the appellate stage also.

Jurisdiction
As per Order 2 Rule 3(2) where several causes of action are combined in
one suit, the jurisdiction of the court as regards the suit will depend on the
42

amount or value of the aggregate subject-matter of the suit. If the

valuation of the suit based on several causes of action exceeds the
pecuniary jurisdiction of the court, the plaintiff can bring separate suits, by
separating jurisdiction of the court.[14]

In K. Lingayya Setty v. Sitharam Agarwala and Anr.,[15] the plaintiff

filed a suit before the District Court, Bellary against Defendant No. 1 & 2.
Where it was found that the court has jurisdiction upon Defendant No.1
since the cause of action had arisen within the local limits of the Bellary
Court but not as regards to defendant no.2 as he neither resided nor
carried on business within the jurisdiction of that court nor the cause of
action arose within the jurisdiction of the court, it was held that the court
was not competent to try the suit.

Similarly in Laxmikumar v. Krishnaram Baldev Bank,[16] Laxmikumar

executed three mortgages of three separate properties situated in three
different districts in favour of the bank, a suit to enforce all the mortgages
were filed in Gwalior, where only one of the three properties was situated.
Held, not maintainable as Rule 2(2) had no application.

Appeal and Revision

A decision as to a suit is bad for misjoinder of parties or causes of action
is neither a decree nor an appealable order under the code, but is said to
be a case decided. And no appeal lies against such order as per the code,
though a revision can be sought.[17]

In Varajlal v. Ramdat,[18] the defendant objected to the frame of a suit on

the ground that the suit is bad for misjoinder of plaintiffs and causes of
action, nut the objection was overruled, and a decree was passed for the
plaintiffs. The defendant then files an appeal from the decree on the
ground that the suit ought to have been held to be bad for misjoinder of
plaintiffs and causes of action. the Appellate court found that there has
been a misjoinder, and it should not interfere with the decree unless the
misjoinder had affected the merit of the case.

Conclusion
Misjoinder of parties or causes of action has been regarded under the
code as a mere irregularity. So, neither a suit will be dismissed on the
ground of misjoinder of parties or causes of action, nor a decree can be
reversed or substantially varied in appeals.[19]

Wherever there has been misjoinder of parties or causes of action, the law
requires that such objection must be taken at the earliest opportunity,
otherwise, it will be deemed to have been waived. Though an objection on
the ground of misjoinder of causes of action does not affect the merits of
43

the case, no decree can be reversed in appeal on account of such

misjoinder of causes of action not affecting the merits of the case.

[1] Shukla v. Manjolyn, AIR 1975 Cal 427

[2] Sorab Dinshaji v. Cassad, AIR 1963 Bom 173

[3] (1883) 9 Cal 763

[4] AIR 1954 Mad 594

[5] Sitaram v. Rajendra, AIR 1956 Ass 7

[6] Ramendra Nath v. Brijendra Nath, (1915) 45 Cal 111

[7] Bhagwati Prasad v. Bindeshri Gir, (1884) 6 All 106

[8] Nagendra Bala v. Provash Chandra, AIR 1953 Cal 185

[9] (1867) 8 Suth WR 15 (FB)

[10] Brajabala v. Gauhati Bank Ltd., AIR 1962 Ass 85

[11] AIR 1963 Guj 152

[12] Amrik Singh v. B.S. Malik, AIR 1966 Punj 344

[13] Alridge v. Barrow, ILR 34 Cal 662

[14] Sarju Hajuri v. Ram Krishna, AIR 1956 VP 6

[15] AIR 195 Mad 595

[16] AIR 1954 MB 156

[17] Ramavtar v. Ramsevak, AIR 1951 Pat 352

[18] (1902) ILR 26 Bom 259

[19] Muthappa v. Muthu, ILR (1904) 27 Mad. 80

Issue and Service of Summons in Civil and Criminal Cases

44

Introduction
A summon is a document issued by a court of law under its stamp and
signature of the presiding judge of that court requiring the attendance of a
person involved in a legal proceeding. When legal action is taken against
a person i.e. a suit is filed against a person or a criminal complaint is
lodged against him, such person is required to appear before the court on
the date and time when the case is fixed for hearing.

To ensure that the person has been informed of such hearing and that the
person appears and explains any circumstance in his personal knowledge
or any information in his favour the court shall issue a summon to that
person to remind and inform him of such date and time.

Moreover, in a legal proceeding, several witnesses are required to testify

for either parties to assist them to prove their case. The witness may be
known to the parties personally but they are required to be served with
official communication by the court to ensure that no witness is absent on
the date of the hearing and there is no adjournment of the case.
Therefore, summons are also issued to all the witnesses proposed to be
examined by both the parties in the same manner as the accused or
defendant.

On receipt of such summons, the receiver is obliged to follow the same

and appear before the court for the purpose mentioned in the summons
itself on the specified date and time.

I. Summons in Civil Cases

Legal Provisions
Order V of the Civil Procedure Code, 1908 (hereinafter, CPC) deals with
the procedure of service of summons on the defendants and respondents
in a civil suit while Order XVI of the Code deals with the procedure of
service of summons on the witnesses in the proceeding. There are 30
rules under Order V that give detail explanation of the procedure of issue
and service of summons distinctly.

Rules 1 to 8 specifically deal with the issue of summons and Rules 9 to 30

deal with the service of summons and various catena in service of
summons. These provisions explain when the summon should be issued
by the court and documents or information that should be contained in the
summons document. Further, it explains how it should be served and
ensure that the service is complete.
Rule 1 states that when the plaintiff has filed the plaint and the plaint has
been admitted by the court, the court should issue a summon calling the
defendant to answer the claims of the plaintiff and file a written statement
which is basically a reply to the plaint.
45

Rules 11 to 15 explain service of summons when there are more than one
defendants. According to these rules, summon should be served to each
of the defendants individually and in person as far as practicable. Rule 13
and 14 provide that a summon can be served to the agent of the
defendant or any representative in his place of work and that shall
complete proper service of summons.

Purpose of Issue of Summons

As aforementioned, summons are issued to two types of persons in any

civil proceeding, i.e. the defendant against whom the suit is instituted and
the witnesses who need to be called to decide the case. The purpose to
serve a summon to a defendant is to allow him to explain his case and his
response to the claims of the plaintiff and further enable him to file a
written statement within the specified statutory period. „

On the other hand, summons are served to the witnesses because the
witnesses may refuse to be present in the court on the request of the
parties and deny the knowledge of such hearing. Therefore, summon is
issued to ensure that the witness knows about the proceedings and can
testify for the same.

The most essential object for introducing summons or for having the
concept of summons is to allow speedy disposal of cases.
Let‟s say summons were not there in the Indian laws, it would have been
very convenient for the parties or witnesses to deny the information about
the case and refuse to appear before the court stretching every case to a
very long and tidy process.

Since the CPC provides for the issue of summons, cases can be disposed
of as soon as possible. If the summoned person appears on the date
ushered, the case continues without adjournment and moreover, the court
is empowered to pass an ex-parte decree, i.e. award in favour of the party
who is present in the court if the other party does not appear even after
receiving the summons.

Modes of Service of Summons

First of all, it is necessary to understand that issue of summon and service
of summon is different. When the court drafts the summoning document
and it is signed and handed over to the court officer for dispatch, it is
called the issue of summons.
On the other hand, when the summon is taken to the person who is being
summoned either by the court officer himself or through the post, it is
called service of summons. If the person accepts the summons, it is said
that service is complete and if the person does not receive it for any
reason, the service is attempted but failed.
 46

Rule 10 of the CPC provides that summon must be served by delivering a

copy of the original summoning document prepared by the judge to the
defendant sealed with the court‟s seal and signature. There are many
ways of service of summons under the CPC that have been recognized by
the courts. These are:

1. Service by hand: This is the oldest and still preferable mode of

service of summons. The plaintiff or the court officer, depending on the
order of the judge, carries a copy of the actual summon and delivers it to
the defendant or the witnesses purported to be summoned through that
document. The serving person keeps an additional copy of the summon or
directory with details of the person receiving the summon and the same
has to be acknowledged by the other party. This method was the oldest
mode when post and electronic means were absent and delivery by hand
was the only option.
2. Service by Post: A summon can be delivered to the summoned
person by sending it through the post. Posting of summons replaced the
delivery by hand because it was convenient and maximum summons
could be served in the same without compromising with the time of the
court. A summon must be sent through registered post such as India Post.
The post office allows the sender to track the summon and the tracking
receipt is required to be produced before the court to prove that the
summon was served successfully. This mode has only one loophole that it
is time-consuming and receipt of summons in many cases can take up to
a week‟s time.
3. Service by E-mail: With the passage of time and development of
technology, the courts have been inclined to use electronic means to
serve summons and notices to save time and money. In the case
of Central Electricity Regulatory Commission v. National
Hydroelectric Power Corp. Ltd.[1], the apex court allowed the service of
a notice through email but ordered that a copy should also be sent
through post. Further, in KSL Industries v. State of Maharashtra, the
Bombay High Court made a significant remark and held that there is a lot
of delays caused in legal proceedings due to unserved summons.
Therefore, all practical means should be used to avoid this delay and
hence, e-mail can be used to serve summons.
4. Service through WhatsApp: WhatsApp, needless to explain, is
one of the most popular messaging application used by people all over the
world. The application has threefold tests to check the status of a sent
message. It provides „one tick‟ for messages that are sent, „double tick‟ for
messages that are received and „a blue double tick‟ for messages that
have been either read or at least opened. In Tata Sons v. John Doe, the
Delhi High Court permitted the plaintiff to serve summons to the defendant
via WhatsApp and e-mail. The landmark case in this regard, however,
47

is Ruma Pal v. Kumar. In this case, the defendant husband had fled to
Australia to avoid any suit filed by his wife for domestic violence and it was
very difficult to serve summons while he was in Australia. Justice Surabhi
Sharma of the Delhi High Court allowed the plaintiff to serve the summons
through WhatsApp and also held that double tick on WhatsApp shall be
the conclusive proof of the receipt of the summons.
II. Summons in Criminal Cases
Legal Provisions
Chapter 6 of the Code of Criminal Procedure, 1973 deals with issue and
service f summons upon the accused person and the witnesses in a
criminal case. Sections 61 to 69 are the relevant provisions whereby
Section 61 deals with issue of summons and remaining provisions deal
with service of summons.

Section 61 states that a criminal court shall issue summons in writing only
and the duplicate of such summon should be sent to the accused or the
witness as the case may be. The summons needs to be signed by the
presiding officer of the court along with the seal of the court.

Unlike in civil cases, Section 62 of CrPC requires that a summon be

served upon the accused by a police officer investigating in the case or
any other officer subordinate to such police officer. Similar to the
procedure in civil cases, a summon, in a criminal case, is required to be
served in person by hand unless it is not practicable at all.
Purpose of Issue of Summons
A criminal case is divided into different types according to its grave nature
and severity of punishment. The main two types of cases are summons-
case and warrant-case. In a summons case, it is obligatory for the court to
issue summons to the accused person to enable him to surrender before
the court and render any explanation that he deems necessary for a fair
and impartial trial.

A Magistrate may also issue summon in a warrant case to allow the

accused to appear in lieu of arresting him and forcefully producing before
the court. Audi alteram partem is a very essential principle of natural
justice which means no one shall be condemned unheard. Summons are
issued to accused persons with the main purpose of upholding this
principle and granting the accused opportunity to be heard in a court of
law.
Summons are also issued to witnesses in a criminal case whom the
prosecution of the defence proposes to examine. These summons contain
a brief explanation of the matter and their role in the case and their need
to testify.
 48

The purpose of issuing summons to witnesses is to avoid any delay that

may be caused due to the absence of the witness who may claim
ignorance about the case. The most essential object for introducing
summons or for having the concept of summons is to allow speedy
disposal of cases.

Modes of Service of Summons

Since, in a criminal case, the summon is not sent through court officers or
the parties but police officers, there are not multiple ways of service of
summons. Summons are served in person or through post only. However,
the service of summons depends upon the accused and the recognized
modes are:

1. Service by hand: As already explained, the police officer carries

the summon issued by the court and the same is delivered to the accused
person at his residential address and a copy of the summon is received
with acknowledgement from the accused of the receipt of the summons.
The same applies to witnesses as well.
2. Service to Corporate Bodies: When the accused is a company or
co-operative society or any other form of body corporates, the summon
may be served through the post to the secretary of the organization or the
Local Manager or any person in authority who is the principal officer of the
organization.
3. Service to Missing Persons: When the accused cannot be found
or is missing, the summon can be served to any adult member of his
family provided the family members are residing in the same dwelling
house or the same city and the family is responsible to intimate the
accused. If there are no family members or any next kin to whom the
summon can be served, the police officer may annex a copy of the
summon on the house of the accused or on the walls of the places near
his house where they can be easily located and read by the accused.

References

1. V. Kelkar, Lectures on Criminal Law (8th ed. 2016).

[1] Central Electricity Regulatory Commission v. National Hydroelectric
Power Corp. Ltd., (2010) 10 SCC 280.

Appearance And Examination of the Parties in a Civil Suit

49

Introduction
A civil proceeding initiates with the plaintiff filing a plaint before the
appropriate civil court and the defendant being called or summoned by the
court for the proceedings. The general principle of natural justice states
that no one shall be condemned unheard.

It means that everyone has a right to be heard before a court of law in the
most reasonable and fair manner. Hence, it becomes vital that the
proceedings are carried on in the presence of the parties to allow them to
hear the claims or averments made by the opposite party and reply to
them adequately.

To uphold the principle of fair hearing, the Code of Civil Procedure, 1908
entails Order IX and Order X dealing the appearance of the parties in the
proceedings and examination of the parties. The provisions make it
mandatory for both the parties to a suit to appear before the court either
themselves in person or through their pleaders to ensure fair trial. The
relevant provisions of the Code dealing with the appearance and
examination of the parties are explained hereunder.
Appearance by the Parties to a Suit
Order IX of the CPC deal with appearance and non-appearance of parties
before a court of law. The general procedure that is followed is that the
plaintiff files a plaint before the court which is scrutinised by the court
before admission. If the plaint is in accordance with the requirements of
Order VII and the court finds the plaint admissible, it will admit the plaint
and issue summons to the defendant for appearance in the court on a
specified date and time.

Now, Rule 1 of Order IX obliges both the parties, i.e. the plaintiff and the
defendant to be present on the date specified in the summon sent to the
defendant before the court.
The provision also gives an alternative to the parties to be present by
appearing through their respective pleaders. It means that even if the
plaintiff or the defendant is absent, their respective lawyers can attend the
proceeding and answer on their behalf.

The provision uses the term “shall” which leaves no scope option with the
parties to refuse to appear before the court and the court is empowered to
decide the suit in the favour of the party present on the fixed day. If both
the parties appear on the said date, the suit proceeds smoothly and the
hearing continues until it is adjourned and finally disposed of. However,
there can be three situations besides the presence of the parties. Firstly,
that both the parties are absent, secondly, that the plaintiff is absent but
the defendant is present and lastly, that the defendant is absent but the
plaintiff is present.
50

Rule 3 of Order IX of CPC empowers the court to dismiss the suit in the
first situation, i.e. when both the parties fail to appear on the specified
date.
The power is discretionary and not mandatory. It means that the court
needs to look into the reasons why the parties failed to appear, the
consequences of an order of dismissal on the plaintiff and the defendant
and whether the order is in the interest of justice or not. „

If the court is completely satisfied that there are no sufficient reasons with
the parties for their absence from the hearing, only then the court can
dismiss the plaint.

In Sham Dasani v. Central Bank of India[1], Chief Justice Beaumont

held that dismissing the plaint of the plaintiff without hearing him/her in the
matter violates his/her right to fair trial and thus, such power should be
exercised with caution and only in the interest of justice. However, the
plaintiff is entitled to institute a fresh suit against the defendant in the
same matter under Rule 4 even if the prior suit was dismissed for non-
appearance.

Rule 6 deals with the situation when only the plaintiff appears before the
court on the fixed date but the defendant remains absent.
There can be three distinct situations when the defendant does not
appear, i.e. (a) the summon was served but the defendant did not appear,
(b) summons was not served to the defendant and (c) there was a delay in
serving the summons.

If it is proved that the summons was duly served to the defendant, the
court is empowered to hear the ex-parte, i.e. in the absence of the
defendant. The court may hear the claims of the plaintiff and pass an
order if it believes that the claims are duly proven. If it is proved before the
court that the summon was not served to the defendant, the court must
grant another opportunity for the summon to be served and must fix
another date for hearing after the summon is served.

If the summon is served lately such that the defendant could not have
received sufficient time to appear before the court, the court should
adjourn the hearing on a fixed day to another appropriate day that the
court deems fit to allow the defendant to appear. It must be noted that the
power to adjudge a matter ex-parte is completely discretionary and the
judge may opt to adjourn the proceedings to grant a second chance to the
defendant. However, the procedure in the other two cases is mandatory
and the court cannot do away with these requirements.

Rule 8 deals with the situation when only the defendant appears before
the court and the plaintiff remains absent. According to the rule, the court
51

should, in all cases, dismiss the suit if the plaintiff does not appear on the
first day of hearing fixed by the court.
However, in practice, this is not generally followed and the plaintiff is given
the opportunity to explain the reasons for his non-appearance.

There can further be two situations when the plaintiff does not appear and
the defendant does, i.e. the defendant may accept the claims of the
plaintiff in toto or he may accept the claims in part. When the defendant
accepts the entire claim, the court should pass an order in favour of the
plaintiff and direct the defendant to pay appropriate damages or any other
prayer made by the plaintiff. On the other hand, if the claim is accepted in
part, the part which has not been accepted or denied should be dismissed
by an order.

Rule 10 is an exception to the general rule of dismissal of the plaint in the

case of non-appearance of the plaintiff. It states that when there more
plaintiffs than one and one or more of them do not appear but at least one
plaintiff appears, the court can continue with the suit in the ordinary
manner as if all the plaintiffs are present and should not pass any adverse
order with respect to the other plaintiffs absent.
Examination of Parties by the Court
Order X of the CPC deal with the examination of the parties to a suit by
the court. Examination means that the court shall ask certain questions to
the plaintiff and the defendant with respect their claims, replies and
counter-claims to frame the relevant issues that need to be addressed in
the proceedings.

The examination does not connote an examination by the adverse party in

a witness box but merely an inquiry conducted by the judge before
proceeding with the case. After the plaint and written submissions are
submitted, the court holds its first hearing in the presence of both the
parties and/or their pleaders and the examination is conducted at this
stage.

Rule 1 of Order X provides that at the first hearing of the case when the
plaint and written statement are submitted to the court, the court shall
ensure whether the parties accept or deny the allegations, claims and
counter-claims of the other party as mentioned in the plaint or the written
statement.

It is essential to clear the position of the parties with respect to each

other‟s claims so that the court can proceed with only those issues or
claims which are in dispute and does not waste time on those which are
being accepted. As the examination progresses, the court makes a record
of all the things accepted or denied by the parties.
 52

Rules 1A, 1B and 1C were brought in the code by the amendment of

2002 and are extremely momentous in the present world. These
provisions empower the court to refer the parties to settle their dispute
outside the court using alternative dispute resolution mechanisms such as
mediation or conciliation.
If the court believes that the parties to a suit are not violent towards each
other and are duly co-operating in the process, it may order the parties to
resolve the matter through mediation or other alternative means.

Rule 2 of the Order further empowers the court to continue examining the
parties after the question of acceptance and denial of allegations to throw
light on the matters in dispute. While examining the parties, the court can
ask questions with respect to the background of the facts in dispute and
circumstances that led to the institution of the suit.
For instance, if „A‟ institutes a suit against „B‟ for transfer of certain
property in A‟s name, the court may ask the parties how they acquired title
over the property, whether the property is self-acquired or inherited, the
value of the property, etc. The court is also empowered to examine and
put questions to any witness or any person present in the court who is
acquainted with the facts and circumstances of the case.

Rule 3 requires that all the questions put by the court to the parties and
the witness should be recorded by the judge either himself or through any
agent working under his supervision. The record must be maintained in
written and should be used to prove against the person in future if the
person denies any of his averments later.
Also, the answers to the questions should also be recorded in the same
manner and all of this should form part of the record. It means these
questions and answers should be annexed with the file of the case to
remain with the court. This concludes the process of examination of the
parties and witnesses by the court in any civil suit.

References

1. Dinshaw F. Mulla, The Key to Indian Practice: A Summary Of The

Code Of Civil Procedure, 11th 2015.
2. K. Takwani, Civil Procedure, 8th ed. 2018.
[1] Sham Dasani v. Central Bank of India, 1952 SCR 391.

Appearance and Non-Appearance of Parties before a Court

Order IX of the Civil Procedure Code, 1908 or CPC deals with the
appearance of plaintiff and defendant before a court and also highlights
53

the consequences of non-appearance. This article shall analyse various

provisions of Order IX and also explain the several consequences in case
of non-appearance by the parties to a suit.

I. Setting the Frame

To clearly understand the meaning and importance of appearance by the
parties in a civil suit, it is essential that we understand the basic procedure
of a civil suit. A suit commences with the filing of the plaint by the plaintiff
which contains the grievances of the plaintiff and remedies s/he is seeking
from the court. The plaint is responded through a written document called
the „written statement‟ which is submitted by the defendant.

Now, after the plaint and written statement have been duly filed, the court
looks into the cause of action and the merit of the case and summons are
issued to both the parties ordering them to appear before the court on a
specific date to initiate the suit. A summon is a letter from the court to the
parties of the cases whereby the court informs the parties that their case
has been admitted for first hearing and intimates the date to the plaintiff
and the defendant.

Once the summons are issued to both the parties, they are required to be
present before the court and continue the proceedings. Now, summons
and appearance of parties is of significant import in a suit because unlike
a criminal case, State cannot take the proceedings further nor can the
court suo motu continue the proceedings. Thus, Order IX of the CPC
comes into place.

II. What is Order IX, CPC?

The Civil Procedure Code is a hybrid law containing substantive and
procedural provisions both. Schedule 1 of CPC contains several Orders
which lay down the procedure to be followed in any civil suit. Order IX
under the schedule provides for the appearance of the parties before the
court and lays down consequences of non-appearance in threefold
manner, viz. (i) when both parties have not appeared, (ii) when the plaintiff
has not appeared and (iii) when the defendant has not appeared.

The first requirement under Order IX, Rule 1, after the written statement
has been filed and summons have been issued by the court, is for the
defendant to justify the cause of action raised by the plaintiff. It means that
whatever violations plaintiff has complained of and whatever claims s/he
has raised needs to be answered one by one by the defendant on the first
hearing.

For this purpose, the defendant is required to appear before the court
either in person or through his/her lawyer. Moreover, to hear the response
of the defendant and also to prepare his/her own case, the plaintiff is also
 54

required to be present before the court himself or herself or through

his/her lawyer.

The court decides a specific date and serves the summons upon the
parties with that specific date on which they have to appear. Rule 1 is the
only provision dealing with appearances of the parties and it makes it
mandatory for both parties to appear on the first hearing. Other provisions
explain the consequences of non-appearance.

III. Consequences of Non-appearance

As aforementioned, there can be three situations in this case, i.e.

i. both parties are absent,

ii. only plaintiff is absent and
iii. only defendant is absent and in each case, the law provides a
different remedy.
We will try to understand each of them one by one.

A. When Both Parties Do not Appear

The basic rule under Rule 2 of Order IX is that, when both the parties do
not appear, the suit should be dismissed which means that the plaint
should be dismissed. However, the provision uses the word „may‟ which
makes it a discretionary power at the hands of the judge. It means that if a
judge has reason to believe that the case should not be dismissed, s/he
can adjourn it for a later date.

Let us say the court receives a high profile case whereby a Multi-national
Company has been sued for negligence by one of its customers or even
employees. The court finds that the alleged negligence of grave nature
and if true might affect a lot of lives. For instance, the Nestle Maggi
situation, where Maggi Noodles was alleged to contain the metal lead. In
such a scenario, the court may adjourn the suit for a later date even if the
parties have failed to appear.

A dismissal under this rule is justified only where neither party appears.
Thus, if the plaintiff or his agent or his pleader duly instructed is present,
the fact that no evidence is adduced will not enable the Court to order a
dismissal under this rule[1].

In H.K. Shah v. T.S. Bhasin[2], it was clearly held by the court that the
parties have a right to be heard and given appropriate opportunities for the
same. If the court fails to provide sufficient opportunities to be heard
before passing an order of dismissal of the suit, such order is ultra vires
and can be set aside.
 55

Dismissing a suit in default is a decision, but simply consigning the case to

records for default is no decision. „Consigned to record‟ means Dakal
Daftar and can be received on the motion of any of the interested
parties[3]. Even the court suo motu can call the record for civil
proceedings or such order can be made on the motion of instance of the
party or suo motu by the court.

B. When Plaintiff Does Not Appear

According to Rule 8, a suit can be dismissed by a court in a case where
the plaintiff fails to appear before the court even after service of summons
to the defendant. In this case, the dismissal of suit is completely
dependent upon whether the defendant accepts the claims raised by the
plaintiff or not. If the defendant accepts or admits the claims, s/he shall be
liable for such claims and any claim that is not accepted may be rejected
in the absence of the plaintiff.

In the matter of Lakshmi Commercial Bank v. Hansraj[4], the court held

that this rule would not apply where the suit is dismissed for plaintiffs non-
appearance on a date fixed not for the hearing of the suit but for some
interlocutory matter. Moreover, in Pirthi Nath, it was observed that where
the issue is framed in a suit after hearing the parties, it is not proper for
the court to dismiss the suit due to the absence of the plaintiff. That
provision applies only when the court comes to the conclusion that the
parties are not at issue[5].

When a suit is dismissed under this rule, the plaintiff is precluded from
bringing a fresh suit for the same cause of action. S/He can apply to the
same court to set aside the order of dismissal under Rule 9 on showing
sufficient cause for her/his non-appearance. However, the dismissal of the
suit does not operate as res judicata. It has been held by the Gauhati
High Court that an order disposing of suit deciding the question of
maintainability hearing only the defendant in absence of the plaintiff, can
be treated as dismissed for default. It is not a decree inasmuch as such a
decision does not decide the matter involved in the suit[6].

C. When Defendant Does not Appear (Ex-Parte Proceedings)

In any proceeding, a defendant may not appear before the court on first
hearing for three circumstances as mentioned under Rule 6 of Order IX.
These are:

1. The defendant chooses to remain absent despite proper service of

summons.
2. The defendant was not served with the summons.
 56

3. The defendant was served with the summons but at such a later
stage that it did not appropriate sufficient time for him to appear.
Thus, since there are three scenarios, the consequences are also
threefold. When the defendant absents himself/herself from the hearing
even in spite of proper service of summons, the court is entitled to
continue with the proceedings of the suit by hearing only the plaintiff.
These proceedings are called ex-parte proceedings which will be
discussed in detail henceforth.

Further, when the defendant is not served with the summons at all, a
second summons has to be issued and served upon him. In such cases,
the court cannot pass any adverse order against the defendant. Lastly,
when the summons is served but was delayed such that the defendant did
not get sufficient time to appear, the court shall adjourn the proceedings
for that date and fix a later date to hear the matter.

In Nahar Enterprises[7], where summons were served upon the

defendant after the date fixed for his appearance, it was held obligatory on
the part of the court to fix another date for his appearance and filing of
written statement and directing the plaintiff to take steps for the service of
fresh summons.

IV. Ex-Parte Proceedings

Sub-rule 1(a) of Rule 6 along with Rule 13 of Order IX deal with ex-parte
proceedings. It has to be noticed that ex-parte proceedings are in a way
violative of the principle of natural justice because the defendant is not
given his/her right to be heard. Therefore, it is vital that the courts
approach with caution and provide every opportunity to the defendant to
appear before the court before declaring the suit to be ex-parte.

Discussing the scope of Rule 6 (1) (a), the Supreme Court observed that
it is confined to the first hearing in the suit and does not per se apply to
subsequent hearings[8]. In ex parte proceedings the necessity of plaintiff
proving his/her case is not lost.

In a case which has proceeded ex parte, the trial Court would scrutinize
the available proceedings and documents, consider the evidence
adduced. It would do well to frame the “points for determination” and
proceed to construct the ex parte judgment dealing with the points at issue
one by one. Merely because the defendant is absent the Court shall not
admit evidence, the admissibility of which is excluded by law. It should
also not permit its decision being influenced by irrelevant or inadmissible
evidence.
 57

Now, the defendant is not left helpless by the law in case he abstains from
appearing before the court. The defendant has the following remedies
in such case:

1. he may appeal from the ex parte decree under Sec. 96 of CPC;

2. he may apply for a review of the judgment under O. 47, R. 1 and
3. he may apply under Rule 13 for an order to set aside the ex parte
decree, provided the application is made within 30 days from the date of
the decree.

References
1. Mulla, The Code of Civil Procedure, 18th 2017.
2. P. Jain, The Code of Civil Procedure and Limitation Act, 5th ed.
2020.

[1] Gh Qadir Dar v Punjab National Bank, AIR 2012 J&K 35 .

[2] AIR 1972 J&K 19.

[3] Rajeshwari Prasad Singh v Shashi Bhushan Prasad Singh, AIR 1996
SC 181.

[4] , AIR 1981 P&H 228.

[5] Pirthi Nath v. Niranjan Lal, AIR 1940 All 250.

[6] Purabii Dasgupta (Sarkar) v. Arun Kumar Dey, AIR 2010 Gau 66.

[7] Nahar Enterprises v Hyderabad Allwyn Ltd, (2007) 9 SCC 466 (468).

[8] Arjun Singh v Mohindra Kumar, AIR 1964 SC 993.

Abatement of Suit and Substitution of Parties: Meaning and

Procedure

There can be many circumstances when either of the parties to the suit
may die or the subject matter of the suit does not exist anymore. To deal
with these situations, the Code of Civil Procedure entails Order XXII
containing the meaning and procedure of Abatement of Suit and
Substitution of Parties under the CPC.
58

Introduction
„A‟ was a naval officer working in the Indian Naval Services who died on a
mission of the navy. A‟s wife was entitled to gratuity from „B‟, the Rear
Admiral which was refused to be given by „B‟. A‟s wife filed a suit against
B and obtained a decree against B for payment of the amount of gratuity
pending for A.

However, while the suit was pending, Rear Admiral B was replaced by C
and B had no position or power to pay gratuity to A‟s wife. In this situation,
what can be done by A‟s wife? The law clearly distinguishes between a
necessary party and proper party in a suit and no decree can be obtained
without the necessary party being impleaded as defendant in the suit.
Hence, the defendant should be C and not B and the suit of A‟s wife might
be dismissed.

To provide for these situations, Order XXII of the CPC provides for
abatement of suit and substitution of parties to a suit. Abatement of suit
means that the suit ceases to exist and no proceeding can be conducted
while substitution of parties means when present parties can be replaced
by a different and more necessary party for the suit.
In the above example, A‟s wife can substitute C as a defendant with B, the
original defendant and the suit will continue as normal. The following is a
rule for rule explanation of Order XXII dealing with abatement and
substitution.

No Abatement of Suit if Right to Sue Survives

According to Order XXII Rule 1, a suit shall not abate even if the only
plaintiff or the only defendant dies if the right to sue survives their death.
Right to sue is a legal right of every person which entitles him to move the
court whenever there is an interference with his legal rights.

In general terms, the maxim that is followed in a civil suit is that actio
personalis moritur cum persona. It means that a personal action (legal
action) dies with the death of the person who takes the action.
Let‟s say A sued B for libel for publishing an article in which B has
deliberately and falsely accused A of cheating people owing to which A‟s
reputation in the society has gone down. While the suit was pending
before the court, A died in an accident and there is no one affected by the
acts of B alive anymore. Hence, the suit abated automatically.

Now, for instance, A sued B for libel for the same defamatory material
published against him and A died before the suit was decided. A had a
family business and due to defamation of A, the family business‟
reputation went down. In this situation, A‟s family member can continue
the suit because the injury caused has not ended with the death of A.
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Thus, in a situation where the legal action can still be taken even if the
plaintiff or the defendant has died, it is said that the right to sue survives
whereas when legal action cannot be taken after the death of a party, it is
said that right to sue does not survive.

For instance, A contract to sell a house can be performed by the relative

of a person who has died but a contract to make a painting cannot be
performed by anyone else except one skilled in the art. Thus, in the prior
case, the right to sue survives while in the latter, it does not. Hence, rule 1
states that if the right to sue survives, the suit shall not abate even if the
parties are dead. The parties may be substituted.

No Abatement if Multiple Plaintiffs or Defendants

If there are several plaintiffs in a suit filing a case on more than one
defendant, there are multiple parties in a suit. Now, if one of the plaintiffs
and/or one of the defendants died before the suit is completely disposed
of, the suit shall not abate but continue by the plaintiff(s) who are alive
against the defendant(s) who are alive.

Rule 2 empowers the court to continue the suit in a normal manner as it

was proceeding before the death of the party/parties even after one of the
plaintiff or defendant has died. However, the court shall make an entry to
that effect in the record. It means that in its order for the hearing on the
day when the court is informed of the death of the parties, the court shall
make a written note about the details of the parties who have died.
The record is meant to keep track of all the happenings in a case. It is
done because a suit might run for years altogether and during this time
the suit can be heard by different judges of the court who shall be
available and the record assists the judges to acquaint themselves with
proceedings in the case so far. Further, the record also assists the
appellate court to understand the proceedings in the case before the trial
court when the suit is taken to an appellate court.

Procedure of Substitution of Parties

Rule 3 prescribes the procedure to be followed for substitution of parties in
a pending suit. First of all, substitution takes place under two
circumstances;

 firstly, when the sole plaintiff in a suit dies but the right to sue
survives and can be enforced by the legal representatives of the plaintiff
and
 secondly, when there are more than one plaintiff or defendant in a
suit and one or more of the plaintiffs/defendants die but at least one
survives but the right to sue dies with the deceased plaintiffs and the
alive plaintiff(s) cannot continue the suit. In these situations, the legal
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representatives of the plaintiffs can substitute the deceased parties and

continue the proceedings before the court.
Now, in any of the above circumstances, if the legal representatives desire
to continue the legal proceedings, they need to file an application before
the court to substitute them as the parties for the deceased plaintiffs. The
application must be filed within 90 days of the death of the plaintiff.

If the court is of the opinion that the right to sue in the suit survives, the
substituting party is an authorized legal representative and that the
application for substitution of parties is filed within the prescribed time
limit, the court may allow the application and allow the suit to proceed.

On the other hand, if the application is not made on time and the court
refuses to condone the delay, the suit shall abate with respect to the
demised plaintiff and the proceeding shall be stopped. Moreover, if the
defendant files an application, the court may allow that the cost of litigation
bore by the defendant during the trial be reimbursed from the assets or
property of the deceased plaintiff. However, the power is discretionary. It
does not entitle the defendant to the reimbursement of the cost of litigation
in all cases where the suit abates due to the death of the plaintiff.

If the case is one where the defendant dies, it is the option of the plaintiff
to substitute the parties. In a case where the deceased defendant had not
filed the written statement or failed to appear before the court on the dates
fixed for hearings, the court may exempt the plaintiff from substituting the
defendant and may pass any judgment in favour of the plaintiff and
against the deceased defendant which the court could have passed if the
defendant was alive. Such judgments can be executed against the legal
representatives of the defendant.
Procedure When No Legal Representative Present
It has been seen that when a party to the suit dies, the deceased person
can be substituted by his/her legal representative. However, the CPC did
not initially provide for a situation where there was no legal representative
for the deceased party. In such cases, the suit abated without proceeding
any further. However, in 1976, the CPC was amended and Rule 4A was
added to Order XXII which deals with this situation in detail.

According to Rule 4A, if the deceased party has no legal representative or

any legal heir, the court is left with two options. First, one of the parties to
the suit who are alive may file an application before the court to continue
the proceedings in the absence of the deceased and any order made
against or in favour of the deceased party may be executed according to
the orders of the court. Second, the court may appoint an administrator-
general or any other officer to represent the estate of the deceased
person in the ongoing case.
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The administrator or officer, as the case may be, shall have the right to
respond and strive to defend his case for the person he is representing. If
an order is made by the court, it shall have an equally binding effect on
the deceased‟s estate as it would have had if the person was alive. It
means that any cost or damages ordered by the court shall be payable
from the value of the estate of the deceased.
Setting Aside the Order of Abatement of Suit
When the party to a suit dies and no right to sue survives, the suit abates.
It means that the legal action is taken dies and no relief can be claimed.
The court records its finding that the party has died and the right to sue
does not survive and pass an order of abatement of a suit.

For instance, A sued B for specific performance of a contract to construct

a residential flat for A but during the pendency of the suit, A died. The only
legal representative of A was his son Z who lived in the United States who
had no knowledge about the suit. The trial court made an observation as
to A‟s death and since no legal representative turned up, the court made
an order of abatement of a suit. Now, what should Z do when he comes to
know about the suit?

For such situation, Rule 9 of Order XXII allows the legal representative of
the deceased plaintiff to set aside an order of abatement passed by a trial
court. To set aside an order of abatement, the legal representative must
make an application before the trial court requesting it to set aside the
order of abatement and commence the suit afresh.
The application must show that there were bona fide and sufficient
reasons for the plaintiff to not substitute the parties and continue the suit
but let the suit abate. If the court believes that the reasons cited by the
representative are sufficient, it may set aside the abatement order and
initiate the proceedings again.

References

1. Takwani C. K., Civil Procedure with Limitation Act, 1963, 7thEdition,

Eastern Book Company, Lucknow, 2013.
2. Sir D.F. Mulla, The Code of Civil Procedure, 19th Edition, Vol. 3,
Lexis Nexis, 2017.