Chapter 1

PLEADINGS GENERALLY

Pleadings are statements in wilting drawn up and filed by each party

to a case, stating what his contentions will he at the trial' and giving all
such details as his opponent needs to know in order to prepare his case in
answer.
GENERAL: The drafting ofpleadings is an art It demands ahigh
degree of professional skill and professional knowledge, expertise and
experience. It is not a child's play as some young members of the Bar
fanc y . Various works on pleadings and the formats framed by the authors
and the forms aniiexed to the Code of Civil Procedure and other enactments
are only a guide and it is for the lawyer who owes a (lut\ to both the
profession and the court to see that the pleadings are properly framed.
The function of pleadings is not simply for the benefit of the parties, hut
also and perhaps primarily for the assistance of the court by defining with
precision the area be yond which, without the leave of the court and
consequential amendment oIthc pleadings, the conflict must not be alIo ed
to extend. While a lavver is entitled to set out the case ofhis client clearl\
and firmly he must not forget his duty to the profession to hich lie belongs
and throw awa y the noble traditions of the Bar and use intemperate or
vituperative epithets or make scandalous, fnvolous or vexatious allegations
against the opponents. Not infrequently such allegations land the counsel
hinisel [in trouble. The typical instance is the use of the word 'au ina
( agabond) against the plaintiff's son in the written statement has led to
series of litigations involving.the counsel for the defendant. 3 Moderation in
language is the hallmark of proper pleadings.
The court is not expected to he a mute spectator to the pleadings
raised by the parties. It is the duty oF the court to peruse the pleadings
atleast at the time of framing ofthe issues and strike out matters which arc
unnecessary , scandalous, frivolous or vexatious, or \ hich may tend to
prejudice, enibanass or delay the fair trial ofthe suit orwluch is otherwise
I C P.C. USCS the word hcarino' for what in F.nuland Is called irial
2 Poison v. Lloids National Provincial Foreign Bank Li1., 1941 - K. It. 2
3 Suniant Prasad v. Ram .Urap. A 1940 All 204.
 4 PLEADNCJS GENERALLY [(III

all of the process of the court (0.6, R. 16). At the same time the
court should realise that the rules of the procedure of -which pleadings
form but a part are matters of mere machinery for rendering justice. Its
approach should he praniatic and not highly technical.'
Ti must be borne in mind that the rules of pleadings are intended to
reg ulate the business and procedurcs olihe court. They never create new
legal rights where none exist, nor do the y take away the existing rights.
The Code of Civil Procedure is only all law as opposed to
substantive law, oil basis of which alone the rights ola party are to he
determined. The primary duty olthc lawyer is first to make hiniseif familiar
with the suhstarui've law o il subject oil statutory, customary and
udiclal precedents up-to-date. to find out the correct position of law on
the matter in question, to ascertain where his client stands and then shape
the pleadings accordin g to law to the best advantage ofhis client. This is
much more Important in the case of budding layers, many ofwhoni have
not even taken the apprentice course wider seniors. .\ lawyer true to his
pro fession must have the mental starni na and intellectual honesty to lay
bare before his client the correct legal position, inform him in appropriate
cases of tile futility or fiailtv of his case and advise him accordingl y
. An
honest law y er ho gives an honest opinion at the risk of losing his briefis
bound, in the long run to earn the confidence o fthe litigant public.
It is the first and foremost duty of lawyer briefed to file a suit to
consider whether the subject matter of the suit is of civil nature and iS
maintainable in the regularcow ofciviljurisdiction. Section 9oflhe Code
ofC'ivil Procedure la ys (]O\ti that Courts shall subject to the provisions
herein contained havejurisdiction to tiy all suits ofa civil nature excepting
suits of which their cognizance is either expressly or impliedly barred. E ía
civil court has no jurisdiction to try the case it goes to the very root of
juosdiction and it is a case of inherent lack ofjurisdiction.5
We may classify pleadings under four broad heads:
Pleadings in a suit
4 Pc iAaI, Chandra V. co;izmiss/oner & Secretar y . Govt of India, A 1986 SC 687;
(ST
.4urnay Chamber n1(o pn,i,erce A 1986 SC 1556; Sheik -lhc/u/ Sata, V.
Union of/nc/ia. A 1970 SC 479.
I/ira/of '. /alinath, A 1962 SC 199.
cli 11 PLEADINGS GENERALLY 5

II. Pleadings in other civil proceedings before a court or tribunal.

III. Pleadings in writ proceedings.
W. Pleadings in an election petition.
I. Pleadings in a suit
Plaint and written statement : As a rule, there are only two
pleadings in a suit, viz:
(a) A statement of claim, called the "Plaint", in which the plaintiff
sets out his cause of action with all necessary particulars:
(b) A defence, called the "Written Statement", in which the defendant
deals with every material fact alleged by the plaintiff in the plaint and states
any new facts which tell in his favour, adding such legal objections as he
wishes to take to the claim.
Replication: No pleading subsequent to the written statement o fa
defendant, other than by way of defence to a set off or counter-claim
can be presented except by leave of the court and upon such terms as the
court thinks it, but the court ma y at an y time require a Written statement
or additional \ ritten statement from any ofthe parties. Such 1ea c is
nonnally gi\cn to a party whose opponent has been permitted to amend
his pleading. Such subsequent written statement is normally called. in the
case of plaintiff, Replication or Rejoinder and in the case of defendant.
ail Written Statement. It is for this reason that "pleading" is
shortly defined in the Code of Civil Procedure as meaning a plaint or a
written statement. -In view of the language of O.8. R.9, the expression
"\\Titten statement comprises a Replication as well. Annexures to a plaint
or written statement, referred to in some paragraphs of such pleading are
deemed parts of the pleading.'
Set-off and Counter-claim : In his written statement the defendant
is expected to put forward his defence to the plaintiff's claim and the
grounds oil he wishes to defeat it. If he wants to put foivard his
own claims against the plaintiff, such claims can be oftwo kinds: those
which strictly fall within the category of set-off provided for in 0.8, R-6,

o 0.8, R.9
7 O.6, R.1.
8 In re Pa,ulwn Tea Co.. 1972 Tax LR 1923 Cal, 45 Comp. Case 67.
 6 PLFADINGS GENERALLY
(C11. 1

and those which do not fall within that class. Claims of the former kind can
be pleaded in the written statement and will be entertained by wa y of
set-off. Claims of the latter kind are known as counter-claims. OS, R.oA,
as added b y Central Act. 1976. now, makes a specific provision for
counter-claim like set-ofl counter-claim is not limited to mone y claims
alone. A set off is essentially a ground of defence but a counter-c laini
could arise onl y I fihe defendant could have flied all suit in
respect of the same. in other words it is a weapon of offence which
enables a defendant to enforce a claim against the plainti ffas effectual k , as
in an independent act. ion.
Pre-trial procedure, Oral Pleadings : If, however, facts alleged in
the written pleadings of one party are not, expressl y or by necessary
implication. admitted or denied by the other party. the judge is
expected, at the first hcaing ofthc suit. (and before the settlement of issues).
to ascertain from the latter \\ hethcr he admits orderlies them and to record
such a dmissions ordenials. Ihe statements so recorded maybe called
f)ra/pIL'Cu/Jflcs This is all the more necessary when the defendant has not
filed a \\ nnen statement, and also, when some new facts are alle ged in the
'ritten statement, in which case the issues cannot he settled unless it is
ascertained \\ hether the plaintiff admits or denies them. It is also necessary
xx hen the written pleadings are incornplctc.vaguc, ambivalent or imprecise.
An alert Judge is the answer to irresponsible or careless pleadings.
The trial courts should insist imperatively oi l the part y at the first
heaing so that bogus claims and defences call curtailed at the earliest
stage
Pleadings, therefore, also include statements of pa l l" or counsel,
recorded before the framin g of issues for clarification of the points in
dispute. 13 These statements are in the nature of supplementary pleadings
and no plea Inconsistent with them call raised at later stage, except.
9 TA .f Suhwn,j,cjw (7zcttiar N. K.M. S/zaninghum, (1966) 1 M1.J 200
10 Saristall Oil )uil/.s v, State of Gujarat, (1967)18 STC 163 (SC) (citinu
}Iatshury's Law of England on distinction between set-oil and counter.
claim),
II OtC).R.t.
12 7',4rzi,,zilini v. T I. Satiapal, A 1977 SC 242 1
13 Ganga Rain v Gvan Singh & Co., A 1960 Punjab 209.
 (II
F'I LADINGS (iENER.\i LV
7

by way of amendment of pleadings. 4

Issues call framed on such
'

Supplementary pleadings and the trial is not vitiated if no formal

amendment is made in the written pleadings in the light of
oral
pleadings. It is. however, desirable for the part y
concerned to seek
lca e (if t ile court to amend its pleadings if tile facts orally stated appear
to be at variance with the pleadings or are so material as ought to have
been mentioned in the picadings, for such oral statements are no
substitute for pleadings. Statements made under 0.10. R.1, being
part of pleadings are binding on the part y
making it and cannot be
rebutted liv it. However, statements made under 0. 10, R.2 arc not
a]ways conclusive and the court ma y in a suitable case allow the parlv
making it to show that the admission was incorrect and was made
under some misapprehens i on Or inadvertence I

cry allegation offaci III

plirit. i Inot denied specificall y or
b y necessary implication or stated to he not admitted in the pleading
of the defendant, shall he taken to be admitted, except, as against a
person under disability. Likcwisc where the defendant has not filed
a pleadin g , it shall be lawful for the court to lronouncej ud
g ment on
the basis oft
he facts contained in the plaint, except as against a person
under a disabilit y : hut the court ma y , in its discretion, require an
y such
fact to he proved. Normall y , a fact which is taken to he admitted
need not he proved. 2 but the court has been given discretion in the
interest ofjustice to require any fact so taken to be admitted, to be
proved otherwise than liv such admission
'' and in exercising this
discretion it is required to have regard to the flict whether the defendant
could have, or has, engaged a pleader.2
14 Mo/jj,u,,,j/ } uhv,, v. Ruehen, .4/1.
117 IC 81 3, A 1929 [ale 165.
IS F,rn, ajSuraj Sleigh v, Sardar, 116 IC 884
16 Qua:, Toufiqeer Re/icon,, V.
list. Nue-banij Bibi.A 1976 Gau 39
17 Ba/k, SInq/e v,
Slat/nero Prasad A 1968 All 259 (case law discussed):
Sec also. Kn,/a.s/, Chm,d) w v. Rotan Prahas/,, A 1974 All. 138.
18 0.8. R.5 (I)
19 0. 8, R.5 (2).
20 Jagannat/z 'padhe'a v. A en rendra 'V.',,!, Ba CC/e p ,
A 1957 Cal 479.
0.8, R.5 (3), as amended by 104 Act of 1976.
2 The expression 'pleader includes an advocate, a vakil or an attorney ofa
Court. vide sec. 2(15). High
 PLEADINGS GENERALLY [('0.1
8

Pleadings in India: In our country pleadings used to be extremely

lax and most inartistically drawn up. They were neither concise nor precise,
and contained vague, irrelevant and general statements, from which it was
difficult to ascertain the question actually in controversy. This was realised
by the Legislature in 1908, and in the Code of Civil Procedure, enacted in
that year, a few rules of pleadings were added, based oil English rules
of pleading. These rules are contained in Order 6 and 8 of the Code. But,
inspite of the fact that these rules have been on the statute book for so
many years, there continues to he considerable scope for improvement in
pleadings ge1lerally.
Object of Pleadings : The whole object of pleading is to give fair
notice to each party of what the opponent's case is, 4 and to ascertain.
with precision, the points on which the parties agree and those oil
they differ, and thus to bring the parties to a definite issue. The purpose of
pleading is also to eradicate irrelevancy. In order to have a fair trial it is
imperative that the party should state the essential facts so that other P"Y
may not be taken by surprise.' The parties thus themselves know v hat
are matters left in dispute and what facts they have to prove at the trial and
are thus given an opportunity to bring forward such evidence as may be
appropriate.' They are saved the expense and trouble of calling evidence
which may prove unnecessary in view of the admissions of the opposite
party. And further, by knowing before hand, what points the opposite
party will taisc at the trial, they are prepared to meet them and are not
taken by surprise as they would have been, had there been no rules of
pleadings to compel the parties to lay bare their cases before the opposite
party prior to the coriiflieflceme1t of the actual trial. 7 The main object of
3 P,ithodh Ver,na v. State at UP. • (1984) 4 SCC 251 (para 38).
4 Soineslinar' . Trihhn wan. A 1934 PC 130, 149 IC 480; Ra p,, Sarup Gupta
fix/mn Nw'ain Inter College, A 1987 SC 1242; Nai'under Nail' v.
Szngh. A 1994 P & 11111; Ganesl' irading Co ..t!ogu Rum. .-\ 1978 SC 484.
5 Ram Sarup Gupta v. Bishun Na,'a,n Inter College, A 1987 SC 1242,
K Karunakaratlmflam v. A. Prumul. A 1994 Mad 247 (1)13): Ram K,./man
Mast Ram, A 1986 P & 1-161 (DB).
6, Sayad Muhammad v. Fatteh Md., (1895)22 IA 4.22 C 324 (PC). Lak5h'nt
Narain v. State, A 1977 Pat 73; Elizabeth v. Sara,nma, 1984 Kar LT 604.
7 Sayad Muhammad v. Fatte/m Md.. (1895) 22 IA 4, 22 C 324 (PC:); Thorp v.
f-Ioldsworth, (1876) 3 Ch D 637.
 (ii II PI.F..\DIr.,Cs GI Ni:R.Ai.i '•
9
pleadings is to find out and narrow down the controversy between the
Parties. Contentions which are not based on the pleadings cannot be
permitted to be raised either at the trial stage or at the appellate stage. 9 It
is also well-settled that notwithstanding the absence of pleading before a
court or authority , still if all issue is framed and the parties were COnSCiOUS
Of][ and went to trial oil issue and adduced evidence or cross examined
\\ itnesses in relation to the said issue, no objection as to want of pleading
can be permitted to be raised hater)
Construction of Pleadings : It is well settled that in the absence
of pleadings, evidence if any produced by the parties cannot be
considered and no party should he permitted to travel beyond its
pleadings and all necessary and material facts should be pleaded by
tIle part y in support of the case set up b y
it. Where a claim has never
been made ]it defence presented, no amount olevidcncc call

looked into upon a plea, which was never put forward. 12 No evidence
call led on a fact not pleaded. 13 It is also not open to the parties to
give up the case set out in the pleadings and propound a new and different
case) 4 Evidence on a matter which is not acutally in issue cannot be looked
into. Where the parties go to trial kno ing full y well what the y are required
to prove, adduce evidence and the court considers the same, the parties
cannot h a v e grouse that the evidence should not be looked into in the
absence ofproper pleading or issue for deteniiinatioa
S K,.iian Lu! Copin . Drqodii a/a /nduvtrie.v, A 1977 Delhi 49. (1976) 75 PL I
(Delhi) 227.
9 /) Acdj;, . //a:u,a/ ,j Ca-O/t',,j, t t Iurkt,,n .Suc,n LW. 1994(2)
AII
539 APiD[3).
10 Sardul Sing/i v. Pritain Sin/,, 1999 (3) 1, \V 466 SC.
Rain Sanip Gupta v. Bi.s/,un .\a?'ait,
hif e r College, A 1987 SC 1242
K. Kanuar kir/,n,n, v. .1 Pru,na/ A 1994 Mad 247 ( 1)13
12 Siddik .1 1ohd.5/,/, v. ti1. Satan, A 1939 PC 57; 1-/an Chad v. Dan/at Ratu,
A 1987 SC 94; S/n, ('nkat,,,'a,,,a,ia Detain v. Stak' aft/tsar,' A 1958 SC 255:
S I enkappa Dci atha v. Stat, RS Dal-ad/ca (1977)3 SCC 532, A 1977 SC 890:
,S/za,ikar C/iak, atarI, v. Rntan/a B,iccujtc Co.. A 1979 SC 1652, (1979) 3 SCC
371 (para 32): Kiipa/a Obul Redd- v. Naratana Ret/d y
, (1984) 3 SCC 447 (para
1 5) (also see ( ' Ilapter V Ill, post).
13 Ila) lL/tand v. Dati/at Ran,, A 1987 SC' 94.
14 1 wad Kumar v.. . tin/it Kant', A 1987 SC 2179 at p.2 t 83
15 Knit Pit,ar/ v I3hwa; Gtakwg ('on/Ltd., .'\ N89 SC 1530; Ktinjii Kesai'an v.
 .1

10 PLEADINGSGENERAI.I.Y 1(H.i

However, a mere inaccuracy iii stating the date of cause of action

has been held not tojusti fy dismissal of the suit) 6 In a case for damages
for failure to take delivery by the buyer, want of clear averment in the
plaint about the seller's readiness and willingness to deliver has not been
considered fatal.' But in a suit for specific performance olacontract the
averment of continuous readiness and willingness i s esscntia1' under
section 16(c) of the Specific Relief Act, 1963. Such averment may not,
however, be necessary in a case where the defendant had repudiated the
contract.' Moreover, readiness and willingness cannot be treated as a
straitjacket formula and these have to be determined from the entirely of
facts and circumstances relevant to the intention and conduct of party
concemcd.' The av.rment that the plaintiff has no objection to perform
the contract in accordance with the decision of the court is a sufficient
averment as contemplated in section 16(c) of the Specific Relief Act.
III motor accident claim case the court upheld the claini on the
facts alleged and proved even though there was no clear plea of negligence,
it was observed that pleadings have to be interpreted not with formalistic
rigour but with latitude on awareness of low legal literacy c fpoor people.'
When a person relies on a Will and pleads that the Will was executed by
the testator, the pleading is to be construed that the Will was CXCCLLICd by
the lcstator in a sound and disposing state olmind.
Pleadings in the molussil are not so strictly construed as pleadings in
y drafted
the High Court. I The Pleadings in mo fuss il Courts in India are loosel
Philip. A 1964 SC 164; RajhirKaurv.S. C/,okosiri& C.. A 1988 SC 1845;
Rant Sartip Gupat v. Thslirt Narwn inter ('allege, A 1987 SC 1242.
16 ..lhdu! Shakur v. Rtj.'ndra, A 1935 All 759, 155 IC 1092.
17 ..irjunsa _Mohan
' La!, A 1937 Nag 345.
IS ir,k'c/iir v. Plorci Sas.won, A 1928 PC 208: Prt'ni Raj v. DLF Ilairwig and
Construction (Private) Lid., A 1968 SC 1355 Ouseph I 'erghe.se vJoseph.41CY,
(1969)2 SCC 530; .1 lthil Khader Rant her v. P. K. Sara 8w, A 1990 SC 6S2.
International (,nt)O!5 v. 1?. K. Stir,, A 1962 SC 77.
20 Ramesh Chandra Chandick v. Chunni La! Sabbarwal, A 1971 SC 1238,
V. Kachukziniu
Buddhoo Tell v. R S Thu nil, 1980 All WC 716; Krichnan Kesaiwi
Ka,unakaran, A 1988 Ker 107.
I Manjushi Raka v. B.L. Gupta, A 1977 SC 1158, (1977)2 SCC 174.
2 Chinnama! v. Kannagi. A 1989 Mad 185,
538 (para 11) per Subba Rao, J.,
3 Badut & Co. v. East India Trading Co., A 1964 SC
Ganesh Sahu v. Dwarka, A 1991 Pat.
 (ii I) Pt I\l)iNljS CENER,\i.l Y II

and .Ls such a liberal construction has always to be given to such pleadings.
The courts would be disposed towards a construction which would pemlit
rather than shut out, an adjudication olthe real rights of the parties, when
from the tcts set out, such adjudication may be held to hejusti lied, though
not asked for in specific terms or in strict forni. 5 The fairness ofirial demands
that the opposite party must know the case he has to meet and should not
he taken b y Surprise, but the courts would be slow to throw out a claim
oil mere technicality ofplcading when the substance 01- the thing is there
and no prejudice is caused to other side. The primar y , though not the only,
consideration in de construction ofp]cadings is not so much what a careful
draftsman vou]d intend to express if he had used the words in question,
nor what meaning the court or the opposite-party ought to have put on
those words, but in what sense, as a matter of fact, the words were
understood.' A liberal construction should, therefore. alwa y s be put on
pleadings, and the intent ion o f'the party pleading should be looked to.
The court should look to the substance rather than to the wording ofa
pleading. Rules of procedure are meant to subsci'e and not to govern the
cause ofj ustice. A document referred to and relied upon in pleadings may
be considered to constitute a part ofpleadings.
lithe substance ofthc essential material facts for grant of mel id is
stated in the pleadings, the court should not throw away the same oil
ground ofdefctive form or the deficiency in the pleadings. A plaintiffs
case should not he defeated merely on the ground of sonic technical
4 1. O. /fl!llUr,Il (Ill L)o- I (LIlt I(0l/)/e v. A nra F. I taint/u'. 1995 (2) Born CR 6 10
(l3Oni.)
S I/a/urn/ia A (it/I V Suiajnu,/ 45 (W\ 17
6. l?/iagull all Prwnul v. ClIanthainaul, A 1966 SC 735: B/il,,: Sing/i v. Kan Sing/i,
A 1980 SC 727. (1980) 3 SCC 73: Madan Gopal v. .t!(zniraj. A 1976 SC 461
(1977) 1 SCC669.
7 Rum Surup Gupta v. BiJ:un A'arar,j Inter College. A 1987 Sc 1242; Gane.sh
Saint V. Duar,k(z Sao, A 1991 Pat
I; .4rc)inn(j Estate and Construction I'tt
lid. v. Ro.s/ta,, Ltd.) 1995)1 Punj LR 301 W& H) (Technical Rules
of Procedure
should be applied to serve the ends ofjustice and should
not be made tools of
oppression): 5lzw-da Ram V. Malik )'ashpal, (1964)66 Punj. LR 1126. But see
.Viranjan La! Ratan Ku,na,- V. R.S.N, Co., A 1967 Assam 74 (contents
of protest
note referred to in W.S. treated as not pleaded).
S Ka!aiiati Tripai/ii v. Darn anti Devi. A 1993 Pat I (DB); Sas'edA!j v. Giarsi
La!, 19S3 \IPLJ 189 MP; Bismilfa V .Jaiit'.i/jiiarP,-asad A 1990 SC 5,10.
 PLtAi)iNGS GENERALt Y Ct I 1
12

defect in his pleading, prOV:(Ied he succeeds oil real issues in the case.'
The pleading has to be read as a whole to ascertainjts true import and it is
not permissible to pull out a sentence or a passage to read it out of the
context, in isolation.' Therefore, an erroneous description of the claim is
not fatal, and i ía claim for money had and received is described as one for
damages, the error is not fatal. Similarly, when a plaintiff sued for
possession as a proprietor he was given it decree on the finding that he
was a service tenurc holder. I in a suit for debts, a plea that the debts
\ crc not binding on the nwiI property as they were not, and could not
have been incurred by tue deceased maiadlupali for the benefit of the
mill!, was held to include both the legitimacy of the purpose for which the
debts were borrowed as well as the necessity to hor.ow the debts.'3
Relief may sometimes he founded on it plea not directly made but covered
by implication. lithe plea or ground ofdcfence raises all arising out
ofwhat is alleged or admitted in the plaint, or is otherwise apparent from
the plaint itself, no question of prejudice or surprise to the plairitiffarises.4
it is necessary that the point was at issue and the parties kiie' that (lie
Plea was involved in the trial. Thus where tue lainti If fails to prove tenancy,
a decree for ejectment may he passed oil ground of defendant's
possession being b y leave and licence.'-' Similarly, where the question is
whether a person is sued in a representative capacity or in personal capacity,
the mere fact that the cause title does not describe Ins representative capacity
is immaterial, but the whole plaint should be read and the conduct of
litigation looked at."
,' v.
Dhww" Deo v. Ru,wI,huI;. 64 IC 517, 23 Born t.R 1009: Kryhort La! Va
Tinkan ('Itwic/ra, A 1980 Cal 204.
10 t.'illutv 5mg), v. Padbav Reif) Selirtha, 1977 (1) SCC 511, A 1076 SC 744: Syed
Da.oagir v. 11 .R Gof)tIak,'i./oIa SI,eriv. 1906 (6) SCC 3773.
it Harped V Rain Sarup. 34 IC 173 (All).
12 Ink/ia', v. .t!ah&/,. 27 W720. I 3 AL) 160.
13 Lakshm,cizand v. I thhuthzpriva Thin/ta, 17 LW 274, 44 NILJ 187, A 1923 Mad
288 (D13).
14 U(thav Singh v. Mad/iv Rao Scindia, A 1976 Sc 744.
15 Bhagwati Pd. V. C/ianilra Mau, A 1966 SC 735, (1966) 2 SCR 286;
Abdul Sam:
1976 All 155;
v. Md. Noor, 1965 AI.J 339; Ran: S/tanker v. Noor i',fuhd , A
Ptznnalal v. Sharafat Ali, 1979 ARC 90; Kashi v. Mujtaha Hasn't, 1982 BLJR 28.
16 ,S'onacha!a'n v. Kumarcnelu, 54 M[J 587, A 1928 Mad 445 (1)13).
 CH. Il
PLEADINGS GENERALLY
13

The leniency of the courts in the construction should, however, be no

encouragement to pleaders in disregarding rules olpleading.' 7 lfthe rules
of pleading which aim at making the trial easier, reasonable cost, and
j ustice to both parties, are construed too strictly the pitfalls ofpleading
may prevent the merits of the issue from being discussed; if tile rules are
lightly disregarded, the result may be confused trials, unfair suiprise, costly
adjournments and many appeals. It is, therefore, necessary to maintain a
delicate balance between technicality and regard for the practical issues.
It is the right of party to have the opponent's "case presented in an
intelligible form so that he ma y not be embarrassed in meeting it." An
unnecessary Pleading "tends to prejudice, embarrass and delay the trial of -
tile action''.
Dut y of Court "The responsibility of clearly perceiving and raising
points, which arise upon the pleadings and evidence, and the proper
adjudication ofwhich is essential for the ends ofjustice, rests on the court
as much as on the parties or their pleaders." This duty is recognised by
statute by the enactment of the Provisions noticed above, namely, that, at
the first hearing, the court shall ascertain from each party whether he admits
or denies such allegations of facts as are not expressly or by necessary
implication, admitted or denied by him,' and a further provision under
which the court is empowered to examine the parties before settlement o f-
issues to find out what the actual controversy between them 1s. 2 Such
examination may be made b y the court eithersuo mont or on the suggestions
olthe opposing cou1)sel. 3 When the question is whether a party should he
held bouiid by an admission in his pleadings, it is the duty ofthe court to
look to the pleadings as a whole and not to dissect a fact out of the
pleadings.' Moreover, the court should not record a concession on behalf
17 Lomb,, aiw] Lancashire Co. v. Bino3', A 1945 Cal 218: See also
Attorne y General
v.i.P Bat/l- Ltd., A 1950 PC 73 (A
case from Fiji in which the Privy Council sc
aside the dcree based on a plea not contained in the pleadings but remanded
the case to the court beloA to enable proper amendments being made).
18 Knowles v. Roberts, (1888)38 Ch. D. 263 (Bowen, L.J.).
19 Per \Vestropp, CT. in Apata v. Ramnu, 3 13 210
I 0.10.R.1.
2 0.10.R.2.
3 0.10,R.2.
4 Shiv Sara,, Rat v. Sukhdeo Rai, 171 IC 317, A
1937 Pat 418; Dular Singh v.
Sitart'un, A 1937 Nag 184.
14 PLEADINGS GENERALLY [CH.]

of a party loosely but should specify as to who made the concession and
in what words.' Extensive powers have further been given to the courts to
strike out pleadings or to order their amendment, 6 and to call for written
statements or further written statements.' When the pleadings are vague,
the court has power also to order further and better particulars.' The
distinction between material facts and material particulars of facts stated
ought not, however, be overlooked.' It is duty of the trial court to clarify
the pleas contained in a written statement which were too vague and too
general to indicate what was meant by the defendant even if no attempts
are made by the plaintiff to seek such clarification. Unfortunately, courts
do not make so free and extensive use of these powers as is necessary,
and the result is that the issues are enlarged and irrelevant evidence is
often introduced, the real issues being sometimes lost sight of If these
powers were carefully and extensively exercised, much of the evil effect
of bad pleading could be avoided. In fact that is not merely a matter of
discretion, it is the duty of the court to find out accurately the real points of
controversy between the parties and to adjudicate upon them, and not to
pass technical orders on technical points, for that means denial of substantial
justice. In England these powers and also the rights ofthe parties to seek
discovery, clarifications and admissions, which are contained in Orders
11 and 12 of our C.P.C., are so extensively and effectively exercised that
ninety nine percent cases are settled even before reaching the trial stage.
Courts have no power to non-suit the plaintiff merely because the
pleadings are not in proper form . " Again, relief is not to be refused merely
because the relief claimed is v'rongly described" or the wrong statute
stated. 12 Where a party pleads and proves all necessary facts, it is for the
court to draw the legal inferences from them. 13 A party need not plead
5 Zila Parihad v. Ra,nesh Chandra, 1978 AU 412.
6 O.6,R.I6 and l7.
7 O.S,R.9.
8 O.6,R.5.
9 Moziv. Rosh an, A 1971 HP5;Mohan Singh v.BhaflWarLal,A 1964 SC 1366.
10 Moor, IA 3 83, 7 Stith WR 8.
11 &thu La! Roy V. Bwd1:vacha1 Rai, A 1943 Pat 305.
12 Mud: us warni v. Rc rnalinga, A 1958 lvi 366; 7railakz Nat!: V. B: ma Ia.
TLR(1953)2 Cal 385.
13 SomnaLh Sing!: v. Ainbika Dube, A 1950 All 121.
Cliii I'i.EADINGS GENERALLY 15

them. It is for the court itself to find out and examine all pleas of law that
may apply to facts.' 4 The court can, however, reject a plaint if it does not
disclose a cause of action,' 5 that is to say. if on the facts pleaded in the
plaint no case is made out.
It is also the duty ofthcjudges to see that the rules of pleadings are
obeyed in their courts, and especially endcavour to save public time by
not allowing counsel to travel "outside the record", that is to say, not to
give evidence which goes beyond any of the particulars in the plaint or
written statement. Thus, ifaplaintiff has given in his particulars of fraud.
Ofytile court to interpose
three distinct g rounds, it wouldhe the manifest dut
and exclude any evidence of fourth ground ofxN hich no mention is to be
found in the plaint. The decision of case cannot he based on grounds
outside the plea ofthe parties and it is the case pleaded which has to be
proved.
Settlements of Issues : Order 14 deals with the settlement of issues
and determination of suit on issues of law orori issues agreed upon. It is
here that the trial court has to take great care and caution. The trial court
has to read the plaint and the written statement. ifanv, and aflerexan'iinatioii
under R.2 of 0. 10 and aller hearing the parties or their pleaders, ascertain
the material propositions of fact or of law upon which the parties are at
variance and shall then proceed to frame and record the issues. I fthe trial
court spends some useful time while framing the issues, a g ood deal of
unnecessary oral evidence and elaborate arurnents may be shut out.
Unfortunately, many trial courts never realise the iniportance of framing
issues and very often draft issues furnished by the counsel on both sides
are treated as issues framed by the court. This practice has to he deprecated
in no uncertain tennis.
Duty of Pleader : Though the courts do. for the sake ofjustice, apply
liberal rules ofconstruction to pleadings and though it is the duty of the
courts to clear up ambiguous and obscure pleadings and to find out the
real points at issue by exercising their various powers in this behalf vet all
14 Gul:w4hmadv. Govt. of LIP.. A 1950 All 212: Kedurlal Seal V. Hart/al S.i!.
A 1952 SC 47.
15 0.7.R.1l(a).
16 S. Vnkappa Devadiga v. R.S. Devadiga, A 1977 SC 890; Trojan & Co. Ltd. V.
Nagappa Citettiar, A 1953 SC 235; Ranthu Singh v. 4cIial Siugh, A 1961 SC 1097.
16 PLEADINGS GENERAl lY 1cli I

that does not absolve the pleaders from their initial responsibility ofdrafling
clear and correct pleadings. A had and careless pleading is often apt to
spoil the case of a party beyond redemption, and even ifthe judge is
inclined to stretch every point in his favour to rectify the mistake ofthe
pleader. it cenainl always involves the client in unnecessar expense, for
no substantial amendment call allowed except on strict terms as to
costs or otherwise. It is. therefore, the duty of every pleader to take extreme
care in draft nt his pleadings. No doubt, he will gain much by experience,
hut a tliorouth Lindersianding ofthe rules ofpleading is essential to start
W1 dl lie should, before proceedinit to diafi a plaint or a written statement.
not oil l\ make himsel facquainted with a]l the detailed facts of the case.
bLit should also carefull y and thoroughl y study the law hearin g oil the subleci,
for it does not infrecuemlv happen that, due to want of accurate knowledge
ofthe law, a pleader pleads matters which are \\ holly unnecessary and
thus invol es his client in the expense and trouble ofprov ing them, or
Mills matters which are the essentials of - his claim or defence, thus very
often makillL, his client lose the case without any fault of his own. The bar
will also do \ ell to make increasing resort to the provisions of - Orders II
and 12. fbrdisco\ ei-. inspection. etc.. with a view to curtailing the area of
coiitio ers y . These pros isions. like those ofOrder 10. foi-ni part of the
pre-trial procedure and have not vet been widely a-cd in our country.
Fundamental Rules of Pleadings (summing U I)) The fundamental
rules of pleadings are four, viz.
• Even pleading must state facts and not law.
2. It must state all the matenal facts, and material facts onl y , (0. 6. R.2).
3. It must state only the facts on hich the part y pleadin reucs. and
not the e idence b y which they are to he proved; and,
4. It must state such facts concisely but with precision and certainty.
Each of these rules is so important that is deserves a separate chap-
ter for discussion.

II. Pleadings in other civil proceedings

Because of tile proverbial delays in civil suits, Parliament and State

Legislatures have been creating special courts and tribunals for speedier
disposal of cases of various types. For instance, cases ofejectment in
CH I] PLEADINGS GENERALLY 17

respect of urban buildings between the landlord and tenant are now dealt
with by special tribunals created under various State Legislations.
Railway accidents claims are decided by Railway Claim Tribunals. Claims
by industrial workmen for payment of wages are entrusted to prescribed
authorities. So is the case with the workman's compensation claims. In
some states such as U.P. and Rajasthan, Public Services Tribunals have
been created for adjudication of cases of public servants in disputes
arising out of their employment, including dismissal, termination of
service, etc. In such cases normally the party aggrieved is expected to
approach such special tribunals and thejurisdiction of the civil court under
section 9 C.P.C. is barred. These are only a few of the numerous tribunals
so far created b y the Legislature. Such tribunals are likely to multiply in
future. These tribunals are given various powers of civil court while
trying a suit under C.P.C. though they are not regular civil courts. \'cr
often the presiding officers olthese tribunals are presiding officers of regular
civil courts, though not necessarily always. The provisions of the C.P.C.
do not as such necessarily apply to proceedings before these tribunals
although proceedings are civil in nature. To what extent provisions olihc
C.P.C. are applied to a particular civil proceeding depends on the statute
under which the tribunal is created. The fundamental rules oipleadings
mentioned above are broadly applicable even to these civil proceedings.
though because ofthe relatively summary nature ofthose proceedings the
same rules may not apply in their lull rigour. In many cases the proceedings
are commenced not through a "plaint" but through an "application" or a
"claim petition" and so forth.
Even though the fundamental rules stated above should apply
,nutatis niutandis even to an application, claim petition, etc., in such
proceedings, yet it is necessary for the pleader to study the statutory
provisions carefully so that a blind adherence to the provisions olC.P.C.
may not land him in difficulty. For instance 0.30. R. 1 permits a partnership
firm to site or to be sued in the name of the firm. If the C.P.C. has been
applied as a whole to such civil proceedings, then, of course, 0.30, R. I
would also apply. But if the statute is silent on this point, then it would be
necessary for all the partners ofthe firm to sue or to he sued jointly in their
individual names, instead 6f in the name ofthc firm. Likewise, in respect of
a claim petition before a Services Tribunal it may be necessary to implead
18 PLEADINGS GENERALLY [CH.]

the appointing authority of the public servant claimant. In a suit before the
civil court it is the Union of India or the State concerned which is required
to be sued vide Article 300 of the Constitution of India. The appointing
authority may be an authority subordinate to the Government but in a civil
court it is not necessary or proper to implead such an authority as defendant.
These points of difference should be noted while drafting pleadings in
such civil proceedings.
III. Pleadings in writ proceedings
As the subject ofwritjurisdiction is very wide, Part Ill has been
completely devoted to It. \Vhile the fundamental rules about precision and
certainty and conciseness which apply to pleadings in civil suit apply to
writ petitions and to returns filed in answer to the writ
petitions, there are some differences also. Unlike a plaint or\vritten state-
ment in a civil suit, a writ petition or its reply is always oil The
writ petition is accompanied by all in which the paragraphs or
parts thereof in hich factual averments are made, and sworn or solemnly
affirnied to be true by the party or its agent or other person familiar with
the facts deposed to. There is a distinction between a pleading under the
Code of Civil Procedure and a writ petition or a counter affidavit filed in a
writ petition. While in a pleading that is a plaint or a written statement, the
facts and not evidence are required to be pleaded ,in a writ petition or as
in the counter- affidavit not only the facts but also the evidence in proof of
such facts have to be pleaded and annexed to it. Secondly, a writ petition
is not entirely similar to a plaint but partakes to some extent the character
of plaint and partl y of memorandum of appeal. The reason is that
through a writ petition the validit y ofajudgnient or order ofan Inferior
tribunal or of some executive authority or quasi judicial body subject to
the writ jurisdiction ofthe high Court or ofthe Supreme Court is assailed.
While challenging the validity of such action or order it is necessary to
point Out the legal flaws therein. Thus a reference to legal provisions is not
frowned upon in a writ petition or in counter affidavit or rejoinder to a
counter affidavit filed in writ proceedings.
In writ proceedings, moreover, special and local Acts and Rules,
Regulations or executive orders made thereunder come up for interpretation
17 Bharat Sing/i v. State of Haryana, A 1988 SC 2181.
 PLEADINGS GENERALLY 19
cliii

and not merely the substantive civil law of the land as in a civil suit. Such
laws are often subject to frequent change and it is sometimes difficult both
for pleaders and for the courts to lay their hands on the up-to-date form in
which such "law", using the expression in its widest sense as given in
Article 13(3)(a) of the Constitution, exists at a particular time. It is,
therefore, usual to quote in writ petition or to annex therewith detailed
relevant provisions of such law, though it is not required in pleadings in a
civil suit.
So far as habeas corpus petitions are concerned, where the party in
custody is not able to engage a pleader or file a properly drafted petition,
the courts allow considerable latitude and even entertain informal
communications to them and treat them as writ petitions.'
Courts of late have adopted a liberal attitude in respect of locus
siandi as well so far as "public interest litigation" is concerned.' Even
where the petitioner is not directly affected by the State action or inaction
challenged by him, he may be allowed to approach the court through a
writ petition if the matter is clearly in the public interest, particularly where
the fundamental rights ofthe weakersections of the people are involved.20
In the array ofparties, again there are points of difference between a
pleading in a civil suit and in a writ petition. In the case ofweaker sections
of the people, where fundamental rights are involved, even an unregistered
association has been allowed to maintain a writ petition, though such an
association, will have no right to file a suit. Again while in a civil suit it is the
Union of India or the State concerned which has to he sued as the
defendant, and an official of a Government call be sued in his own
name, in his personal capacity and not by his designation (unless the official
is a Corporation Sole or a Corporation Aggregate), in a writ petition,
however, any officer or authority who or which passed the impugned order
18 Icchu Devi Choraria v. Union of lndui, (1980)4 SCC 531.
19 Akhil B/:araziya S.K. Sangh v. Union of India, A 1981 Sc 298; Poopk' L "nan
for Democratic Rig/its v. Union of India, A 1982 SC 1473; Janata Dal V.
115 Chowdhari', A 1993 SC 892; Sub-committee ofiudicuzl Accountability V.
Union of India, A 1992 SC 320; Bangalore iv!edical Trust v. B.S. Mudadappa,
A 1991 SC 192; Sub/ins/i Kumar v. State of Bihar, A 1991 sc
420; Bandhua
MuktiMorcha v. Union of India, A 1984 SC 802.
20 See post "Public Interest Litigations" in Chapter XVIII.
20 PLEADINGS GENERALLY [Cu.r

can be impleaded as an opposite-party. Even an informal tribunal or court

is required to be inipicaded in its official name if a writ of Prohibition orof
Certiorari is sought against it. If in the event ofsuccess of the writ petition
pecuniary liability is likely to fall on the Government, then it is necessary to
implead not only the competent authority whose order is in question but
also the Union of India or the State concerned.

IV. Pleadings in an election petition

So far as the elections to Parliament and State Legislature are

concerned, petitions to challenge them are governed by Part VI (Sec. 79
to 122) of the Representation of the Peoples Act, 1951. Section 87 lays
down that subject to the provisions of this Act and of the Rules made
thereunder every election petition shall be tried as nearly as may be in
accordance with the procedure applicable under the C.P.C. to the trial of
suits. Thus the fundamental rules of pleadings mentioned in this chapter
govern an election petition as well. An election petition is, indeed, construed
even more strictly than a plaint in a civil suit. The reason for the greater
strictness in these proceedings is that the right to file an election petition is
not a common-law right but a statutory right. Secondly, the respondent of
such a case is a person who has been declared to have the confidence of
the electorate and the courts are slow to interfere with the verdict of the
electorate except when a clear case is made out. Thirdly, where corrupt
practices are alleged by the petitioner and the petition succeeds, the
respondent may not only be unseated but even becomes subject to
disqualifications for future. The ingredients ofcorrupt practices are such
that they are quasi-criminal in nature, and may be compared with
matrirnotiial offences in so far as this aspect of the matter is concerned.
The courts, therefore, insist on greater precision in regard to such
petitions. They would also not allow an amendment to an election petition
which may have the effect of permitting the petitioner to plead a new
corrupt practice after the expiration of limitation for filing an election
petition.
 Chapter It

FACTS, NOT LAW

First rule of pleading : The first fundamental rule ofplcading is that

neither provisions of law nor conclusions of law he alleged in a pleading.
A plea on a mixed question of fact and law should be specifically taken,
but mere conclusions of mixed law and fact should not be alleged. The
pleadings should he confined to facts only, and it is for thejudge to draw
such inferences from those facts as are permissible under the law, of which
lie is hound to takejudicial notice. Ajudge is hound to apply the correct
law and draw correct legal inferences From facts even i I the party has been
foolish enough to make a wrong statement about the lav, applicable to
those facts. It is a mistake to think-that the judge is not bound to consider,
or rather is hound, not to consider, an y view of the law in respect ofthe
ticts betbre him except such as laid in before him formally by the parties.
I ía plaintiff asserts a right iii himself\vithout sho ing on what facts his
claim Of rights is founded, or asserts that defendant is indebted to him or
owes 111111,1 duty, without alleging the facts out ofwhich such indebtedness
or dut y arises. his pleading is bad. Oil other hand it is not necessary to
specify in the plaint the provision under which the suit is being filed.
Accordingly, the mention of wrong provision v. ill not prevent the court
from granting relief under the correct provision.'
It is common to plead that the plaintiff is the legal heir of the
deceased. This is an inference of law. What the plaintiffshould show is
how lie is connected with the deceased. lie should also account for other
relations who were nearer to the deceased than the plaintiff. It is had
pleading to allege that the plainti ffis entitled to get certain money from the

i Pitisliottani v. D Ghce Co -A 1961 .-\P 141

2 1?ani [-'tasad v. State of M. P., A 1970 SC IS iS.
3 Ke/ur Lal v f/wi Ln!.'\ 1932 SC -I"
-t Cuara v S,i Rain, A 1926 Na- 26 5 , wuhn v. .1JaIic.'i'i 5uah. A 1926 ig
313 93 IC 103; Soinnath Singh v. .-imhikn Pracwl Dube, A 1950 All 12
%-!aliarashtia State Electricity Roanl v c%!a till uciulandus, 67 E3orn LR 9 i 9.
A 1966 Born 160; R.M. Sec hadil v G I asantha Pal, .'\ 1969 SC 692.
5 Parer Buchanan La! & Mac/iarg v. tIc Vev. 1955 LAC 520; Trailakaga VatIz v
Bi,nala, ILR (195.3) 2 C 385.
22 FACIS. NOT I ,AW

defendant. Facts from which title to the money can be infelTed should be
alleged. e.g.. that the plaintiffhad 1cm the nioncy tothe defendant. or that
the plaintiff had sold his goods to the defendant and the latter had
promised to pa y him the price on a certain date but had not paid it. It is
equal!'. bad to sa that the defendant was hound to render accounts to the
plaintiff Facts making the defendant an accounting party should be clearly
alleged. e.g.. that the defendant was the agent ofthc p]aintl ff ibr purchase
and sale ofgrain or that the dcfcndant was a co-sharer or partner who
was managing theoi jnt property or business.
It is riot sufficient to sa y that the plaintiff is entitled to at] ght ofwav
over the defendant s land; he should show how he is entitled to that right,
whether by grant. prescription, or an easement ofneccssitv, or otherwise.
Even that would not be sufficient; he should set out the facts upon which
he relies as entitlin g him to the particular kind of casement." He must, for
example, state that the defendant's deceased fluther had ill
of Rs. 2,500 -. eranted to him. b y it deed, dated January 5, 1 965. a right
to pass over the land: or that the plaintiff has been passing over the land in
going feom his house to the public road for more than 20 years before the
suit, as ol nght and '.\ ithout interruption: or that the plaintiff and defendant
\ crc joi it owners ofthe land III that at a partition held III 970, that
land was allotted to the defendant, that the wa y oithc plaintiftalways lay
acfoss the land and that there is no otherpossihic wa y through '.\ hich the
plainti ftcan go from his house to the highway.
It is not sufficient to allege that the defendant was guilt y of
ne g li g ence. Facts on which the defendant's dut y , neglect ofwhich is
pleaded. is based, as also the facts which constitute, III plaintifPs
opinion, a breach ofthat duty should be alleged, and it should be lefi to the
court to infer from them that the defendant has been guilty ofnegligence.
It is not sufficient to piead that plai 'iti ffis entitled to the propeily under a
sale-deed from A. I Ic should allege that A was the owner of the property.

6 Pam'! v. Coüan. 12 LR Ir 14; Vunua .al v. Ma/,adco, A 1962 Puuj 299,

retyirw on Harms v ..JL'nAur ,(1882) 22 Ch D 481 and Spediling v. Fitzpatrick.
1888) 38 cli D4 10.
7 Gautrat v. Egerion. (1867)2 Cl' 37 t. 36 LJC'P 191; West Rand GoidMining Co
N. Rex, (t9O)3KB291,74LJKB753.


i ' ll III FACIS. NOV I...\v'

and that he sold it to the plaintiff by executinga registered sale-deed in

respect of it on such and such date.
Ill a case of defamation, the pLib] cation of defamatory statement
should be alle g ed and it should be stated that the \VOrdS were published or
spoken to some named individuals and the actual words should be set out
and the tulle and place. \\ hen and "here the y were pLiblislied should also
be speci lied in the piaint.
Similarly it will not be sufficient to sa y that Abu Muhammad made a
g fi of his propert y to the plaintiff The plainti ffshoukl allege how the gift
was made, how it was accepted, and ho possession was delivered,
because these are the facts \ hich constitute a valid gill tinder the
\luhaniniadan Law. Nlerelv to allege the gill would he to state a conclusion
ot'lim . from facts which are not stated. It is also iitsufflc ienl to allege that
there w as (/o/l/tu) 00)1-/Is a/isa ' ( w ft in prospect of death). The relevant
circuillsianccs leadin g to this inference should be stated
I acts are 1101 stated iii the plaint. ii shall he field to be bad inspite of
alle g ations oftnliicnces of'law \\ itch the plainli ffdraws From those facts.
e. g .. e' en i lit is alle g ed that the particular act complained of as (lone
"unla ftllv" "\\lonnfi/l Iv - " inlpropel l\' or"itliout an' justification therclor
Or tight 10 do so', that ould not be stitlicient unless facts are alle ged from
luch the plaintiff (lra\\ s the infrience that the act was unlawful. roneflil,
iiiproper or unjustified. I The plea that the "suit is misconceied" is bad.
as facts should be pleaded froni which the defendant claims to draw this
inference oflaw. A ilea olivainlainahi I Itv of tile suit is one ollaw and
need not be specificall y raised. \Vlieresubstanceoftiie section is disclosed
in the pleadings, Omission to plead that particular section specificall y is
imiiiatenai.

S .5 jib/n - ui to//i . Ruim iij.s liii a Roo, ( 1 908)2 An dli L T ml

9 /u v. Pi3O11, I SS2 45 I 1 755, 30 \VR (Eni ) 287.
tO (oiuiruI V. Eg'rion, (IS 67) 2 CP 371 Den-v. /?Joiimig,
(1878) 48 LI Ch 173.
(I Cm D 294 at 302 (such "epithetsof abuse" are "useless and redundant').
S/ui'uda v. Die/i/a, A 1948 Rom 20: (hiI:ar 4/ion/ Z
nfj i v Gott of C P
A 1950 All 212.
12 Siat' o y Rujujibtiji v. Roo Rujit Ka/jan S/itch A 1971
SC 20] S
Hiji .11idtelb, /1 'i S. Dhiimosihopunanz v. F I Jlamee(/,
A 1 985 Ker 93 (DII)
 FACTS, NOT LAW [C11,11
24

Similarly, the defendant is not, in a suit for price of goods sold to hi in,
entitled to plead that he is not liable. He should allege either that he did not
purchase the goods, or that they were never delivered to him, or that they
were not of the quality ordered, or that they were sold on credit which has
not yet expired. In a suit for damages for an alleged libel, it is not sufficient
to plead that the defendant published the libel on a privileged occasion.
lie must set out the facts and circumstances on which he relied as creating
the privilege) 4 So, a defence that section 41, Transfer of Property Act,
protects the defendant is not good. The defendant should plead that lie
had taken the property for consideration from a person who was the
ostensible owner of it, and that he. in good faith, believed him to be the
owner. In a case relating to short delivery it should be specifically pleaded
that the consignment as booked at railway risk rate because otheivise it
would be presumed that it was booked at owner's risk rate.'
Instances of Bad Pleading : The following are some of the other
instances of pleadings, oflendi ig agaist this rule, which do not ordinanly
strike many pleaders as being wrong:
(a) The plaintiff is the heir ofthe moi-tgagor and the defendant is the
the
heir of the mortgagee, hence the plaintiff is entitled to redeem
mortgage. and the defendant has iio legal right lfl the properly hut to
take his mortgage moiiei. (The family connection of both should be
Shown.)
on
(b) The mortgage was made for a legal necessit and is hinding
the son of the mortgagor. (The exact necessity should be specified. The
latter part of the sentence is in inference of law.)
(c) The defendant has been in possession of the mortgaged property
and is liable to render account of the tncoinc' and expenditure.
(The liability, being statutory need not be pleaded.)
(d) The plainti fi' being a re'ersio1u'r is not legally bound by the
transfers made b y the I Undu widow in favour of the defendant.
(A proposition of law.) How he is reversioner should be disclosed.

358; Elki,, ton v. London Assocu,t,onth'

14 Simmonds Dunne, (1871) Jr R 5 CL
the Protection of Trade, (1911)27 TLR 329.
15 Firin Ilv1Jhadco/(d Bhagfrt7thnU7l V. Union of india, A 1969 Pat 440.
 CFI Ill FACTS, NOT LAW
25

(e) The mortgaged property belonged to a joint

Hindu fi un i/v, and
the second defendant had no right to transfer the family property to the
first defendant without the plaintiffs consent. (A proposition of law.)
(I) For the above reasons, the plaintiff's suit is liable to be
ilisniissed (An Inference ofl aw.)
(g) The mortga g e-deed in Suit is void and is of no
e ffect in Ian.
(Facts making it void and ineffectual
should be pleaded).
(11) The properl y is the sf,ridhan
ofAB (This is a conclusion of law;
facts making the properly the sti-i(Man of AR should be stated.)
Tolerable Pleadings: But, while the strict rule ofpleading requires
that such legal infei-cnces need not be pleaded, still sometimes in addition
to the facts which are clearly pleaded, the inference is also pleaded, either
for the sake ofcleaniess or for convenience, as that sometimes makes the
stalenicuts of facts more intelligible and shows their connection with each
other. This has been tolerated even in England, as such pleading is, at the
niost, unnccessar' and does not affect or in an' way embarrass the other
party. For example, in a suit on hypotl iecation bond, If the defendant pleads
that the bond was not attested by two witnesses, and does not fIIe,'-efoi-e
iilIiOliil! to !iIOrtgage,
the latter pleading may strictly he against rules,
Yet it may be tolerated.
Pleading Foreign Law and Custom : The rule against pleading
la is restricted to that law onl y ofwhich a court is bound to lakejudicial
notice. As the court does not takejudicjaf notice of foreign law, or of
particular customs or usages of trade, they should be pleaded like any
other fact, ifa party wants to rely on them. ' Ifa party relies on a usage at
variance with the Contract Act ` or with other general law R
he should
Plead the usage with particulars about its incidents and details. if i t is not
pleaded no evidence to prove it will he admitted.' 9 A custom which has
16 I '
Is/nlana,/, v. Ra,,i Am-mn, A 1940 All 405, 190 IC 109; lqba/ ilavan v Sunu,
Central Board. A 1972 All 123; G. A nna/)iinian a i'. A/lppa/anarasi,,,),a,,,,u.,/,,.
1994(3) ALT 491 (All).
17 Sital Prasad v. Ranjit Szngh, 1931 AU 390, A 1931 All 583.
18 Koch,,,, Kan, Armjuraman V.
Meiheran, A 1971 Sc 1398, (1971) 2 SCC 345:
Bhagar Singh v las non! Soigi,, A 1966 Sc 1821.
19
T/iaAur Qoh,g/ (/iam/ v. Paris,, Ku'na,j A 1952 SC 231, 1952 SCJ 331
 FACTS, NOT LAW
26

repeatedly been brought before the courts, and has been recognised by
them regularly and has thus acquired the force of law, need not be pleaded.°
For instance, the custom amongst Jams in India, except in Madras and
Punjab, authorising widows to adopt without, husband's authority is
presumed and need not he pleaded.'
Legal Pleas: This rule should not he considered as excluding legal
pleas to suit, or pleas denying the legal right claimed by the opposite party.
If plaintiff claims as an heir on the ground of certain relationship, the
defendant may take a legal plea that the plaintiff is not an heir, even assuming
the alleged relationship to he correct. Ina suit by a landlord for arrears of
rent if defendant denies the plaintiff's title, the plaintiff may plead an
estoppel under Sec. 116, Evidence Act, against the defendant's plea.
Similarly, pleas in bar of suit, e.g., oilimi(ation, resjudicc'ta. etc., may he
raised. Such pleas are "objections in point of law" and raise what are
called "Tssues ofLaw".
Reference to Rules and Orders: In certain cases, a little relaxation
of the rule discussed under this chapter will be advisable. Of late legislative
amendments have been too frequent. Moreover, "law" means not merely
a provision in an Act of Legislature or Ordinance but also comprises any
order, bye-law, rule, regulation or notification having the force of law) In
View of the frequency of amendments in all such laws it is often di fTicult for
pleaders andjudges to keep abreast of them. It is, therefore, convenient if
the latest position of such laws is set out in pleadings. Such a reference
need not he regarded as violation of the rules of pleading. In any case the
courts will do well to tolerate it in the interest ofjusticc as this sometimes
also serves to apprise the other party better, of the case he has to meet.

2() Bonarsi Dos v. Swnat Prasad, 164 IC 1047, 1936 AU 1237, 1936
AWR 857.
A 1936 All 641: Dashrathlal v. Bat Dliondubai, A 1941 Born 262. 195 IC 464:
" v. Thakur Dan
Rasoolv. Ramzan, A 1954 All 270 (custom of privacy); Bali
Sing/i, 1950 ALl 234, (1951) 2 All 559
(Custom of pre-emption in Kurnaun);
LjagarSi'ig/i v. Mst. Jea, A 1959 sc 1041.
I Alanghibai v. Sugan Chand, A 1948 PC 177, 1948 ALl 255
(Under Hindu
Act, such authority IS now not required in respect
Adoption and Maintenance
of any Hindu, Buddhist, Sikh or Jam).
366 of the Constitution.
2 See, for instance, Articles 13 (3) (a) and
 Chapter HI

MATERIAL FACTS

Second rule of Pleading The second fundamental rule of pleading

is that every pleading shall contain, and contain onl y, a statement oftlie
material facts oil the part y pleading relies for his claim ordcfence.'
The rule re(Iuires:
(I) that the party pleading must plead all material facts on w hich lie
iiiiends to rely-, and
(2) that lie iii u St plead mau'rial facts on/i. and no fact which is
immaterial should be pleaded nor the evidence.
Their Lordships ofthe Privy Council have pointed out that the rule
that all material hiicts should be pleaded is not mere technicality and that
an omission to observe it ma y increase the di ificultv ofthe court's task of
ascertaining the rights ofthc parties.- The word, "material" meant necessary
for the purpose offi.miu ]al in g a complete cause ofaction. and i IF one
material staten-]enl is 011111 led the statement ofclaim is bad. - ' I fall the
material liicts constitutin g the cause of action are 1101 averred in the plaint
the suit has to fail.
The plat ntifl- had alle g ed fl-at he was "entitled to get free suppl y of
water for wet crops raised" oil land "irrespective of the nature of the
crops'', but the facts on which he relied as the foundation of his right were
nol set out in the plaint. It is submitted that this pleading was bad also
because an inference oflaw was pleaded. The le gal inference should he
left to be drawn b y the courts.5
What are material facts :The first question is what Facts are
material. Every fact is material for the pleading of a party, which he is
bound to prove at the trial (unless admitted by the other party) before lie
1 0.6. R.2: ifauphul 5mg/i v. SurinL'rSi;igh. A 1973 SC 21 58: R.M. Sc.s/zathz v.
I asantha, A 1969 Sc 692,699,2 SCR 1019.
2 (Jopala Krrs/inana V. Madras Province, A 1947 PC 132.
3 Bruce v. Oa'Iza,ns, 1936 All ER 294.
4 i 'as/ziss/ita v. G/a.vo Laboratories, A 1979 sc 134.
5 Gouriduti Gane.shi La/ v. itladho Prasad, A 1943 PC 147; State of R0j03t/lafl V.
Rao Raja Ka/ua,i Singh, A 1971 SC 2018.
 MA IRIAL FACTS [CII iii
28

can succeed in his claim or defence.' Material facts are those facts which
a plaintiff must allege in order to show a right to sue or a defendant might
allege in order to constitute his defence..' Facts which arc not necessary to
establish either a claim or a defence arc not material. It is, therefore,
obvious that the question whether a particular fact is or is not material
depends mainly on the circumstances of the case. It is a question not
always easy to answer.
There is a thin line of distinction between a material fact required to
he given under 0.6. R.2 and the particulars required to he given under
0.6, R.4 & 6 as pointed out III VI of this book. All the same a
distinction exists. Before giving particulars the specific act of tile other
party constituting the material fact must he alleged. For example in a suit
for specific performance of contract the plaint] IT must allege that he was
ready and willing and is still willing to peribrin his part othe contract. The
[aillLrc to do so ma y result in dismissal ofhis claim.' In it suit lhr inftingemcnt
ol'patent right it is necessary to allege, besides giving particulars of the
said itilniigement, that the plaintiff had a patent right under Patent No...
A condition precedent whether imposed by law or agreement niust be
specifically pleaded though not its performance.
Before drafting his pleading, it is necessary for the pleader to master
the law relating to the case in all its details and then he must apply his
knowledc of the law, and his own common sense, to the facts of the case
as narrated to him by his client, and decide hich olihe facts are material
and must be pleaded and which are immaterial and must be omitted. If he
is in reasonable doubt about a particular fact, it would perhaps he better
for him to plead it than to omit it, for, ifaflerwards, it turns out that the fact
was material he cannot be allowed to prove it, unless he can obtain leave
Bankev Ra,n v. Sarasti Devi, 1977 RCJ 332 ( EB): t. Ihav 5mg/i v i.1adha'. Rat,
Scindia, A 1976 SC 744
7ika Kliawas v, Pasupati Nath A 1986 Sikkim 6; Sivana,ula Ro y v. Janahi
Bit/la v. Pattnaik, A 1985 Ori 197.
Abdul K/iader Rowther v. P.K. Sara Bai, A 1990 SC 682; %!ohd. Shakoor v.
Chea'di Koe,i, 1995 RD 28, 1995 (4) CCC 409 (All): Krishnan Kesavan v.
Kochukul!ju ?aninakaran, A 1988 Ker 107; Sabira Khatun v. Saveda Faimia
Khatoon, A 1995 Gau 104: Sanga Thevarv. Thanuketh Arninal, A 1954 Mad
116; DeviSahai Prernraj Mahajan v. Govindrao Balwantrao, A 1965 MP 275.
 ( - ItIII] \i.\ I I k A! !..\(IS

to amend his pleading, which ma y either not be granted or he granted On

strict terms as to costs.
Test to be applied : After the Pleader has made up his mind what
facts he has to plead. he should put them together and inquire hether, if
all those facts were proved, his client would be entitled to a decree, If lie
call ail in the affirmative, he should then take up each fact
and I nq Lii ie whether, if he fin led to prove that fact, his client could still
succeed. lfhc could succeed, even without proving that fact, the fact
should be eliminated, and what facts remain aflersuch elimination would
he the material facts which the pleader is bound to plead. lfhe finds that
the facts he intends to plead would not, even if all oftliem were proved,
result in the SCCCSS of his client, and an y
further fact has to he proved.
dial farther fact should also be pleaded
Instances of immaterial facts The pleadings in the lo ci courts
en fbund to be fall olalle g ations of irnniaterial facts \\ hich
should
noi be p]eaded. For instailec, in a suit lbr money due on it
note pa able on demand, it is not necessar y In allege that the Plaint] ft'
dcmanded the mone y and the defendant refused to pa
y it, because the
rnoncv P 1 Y1hlC immediately and no demand is necessary before suit.
In an e ict on petition on the ground of bonafide
requirement, it is not
necessar y to plead that no other accomniodation is available in the
cit\ town.!'' In it suit for ejeciment againsta trespasser it is unnecessary to
alle g e that the defendant was asked to vacate the house but he refused to
do so. In a claim fbi onv Hit, it is unnecessal-v to plead that the money
\\ us Liu It the request ot'tlie defendant, or because the plaintiff had implicit
confidence in the ho n est y ofthe defendant, or because the defendant \vas
in straitened circumstances and had been r
ecommended to the plaintiff by
friends. In a SLI ii br price of goods sold to the de fendant, it is not
C0111111 011
necessar y to allege that the goods belonged to the plaintiff. In a suit far
an-cars ofrent against it tenant, it is not necessar
y to plead the plainti ti's
title to the property, for the defendant cannot den y it,

9 1 feghraj v. Johmon, 11 NLR I M SA' .

Jwnnui v. .tIohI. I/'iahw, A 1926 Nag 194:
S('( rcTji 0/ SRI[(- V. PiL(/d &lf)U/I, 46.M 259.
10 Sren(/rr SmgI, V. Rqjwam, A 1991 NIP 59.
30 M.'\ lERIAL tAt "IS I II

The allegations of hostility between the parties or collusion between

the opposite party and the eneni ities of the party pleading are not material.
A plea that the evidence in support of the other parties' case is unreliable
need not be taken in pleadings) It is unnecessary to state that the defendant
has trespassed oil land at the instigation ofplaintif[s enemies, or
because the defendant owes a grudge and wants to tease the plaintiff. It is
sometimes alleged that the defendant has not paid in sptc' oJ his ahiliv
topav. The ability or inability to pa y is not a material fact. III SOIL for
damages for assault, it is iiot material to allege the conviction of the
defendant (hr the ofknce b y the critlu ml court. In a suit or daniaes (or a
trespass on the plaintifI s property, it is not material to allege similar acts of
trespass committed b y the delndant belore. It is also not material to
allee that the defendant is a man of ereat iniluerice III vi hlate and the
lai iii Iii s a poor and helpless CLIIII% atoi-. In an action b y a creditor aai nsl
a suret y , there is no need to ahiece that the creditor e.ave the surei\ notice
thai the pt-i icipal debtor had riot paid. Soineti nics it is Z11SO a] lced iii the
plaint that the plaintiti Lles the /mm/i orpronote or cop y oLin aceoLnil
with the plaint. It is ilot necessary to allege that in the pla lit.
\Vhere a contract or transaction is lleal, there need be no pleadings
a [the parties raising the issue ol illegality and the court is bound to take
judicial notice otit.' \\hece substance ot'tlie sectiOn is disclosed in the
pleadings omission to plead the particular sect loll Spec ihcallv is immaterial.
.-\ defendant need not plead to the prayer ill the p1 aint nor to an
chatter which merel y affects costs. 4 A defendant need not repeat those
(acts in written statement which are admitted or relied upon b y the plaintiff
ill the plaint.'
Instances of material (acts Oil the other hand. ill stilt for
injunction, it is material to allege that the defendant "threatens and intends''
to repeat the illegal act.'' \Vhere words of praise are spoken ironicall y so
ii (7'rj 'V(i;u/I,il D'i I v. Th 1j004I1'1 \i, 11 i a (lf,,u!h.u1. A I )76 S( I I
12v. IV,i,,;,u/ia
Sw'a iibaIwi t lohin. A 1W SC 136-I K,nIci Bczi v . l,/fal Sing/l.
A 1991 NIP 275.
13 llaji .-lhhilIa HA S Dluuina.vrhapwuwi V. 7. I. 1f(U?ZtS!tL, A 1985 Ker 93(1)13).
4 Od g ers' P1eadnc p. 121 j9th Ed).
IS L(1A.slun, .-Vto'ain Rum \'watn v. State of Bihar, A 1977 Patna 73.
16 Stannai'd V. I 'e.sui'o/ St. Gilt's, ( 1882) 20 Ch 1) 195.47 LT 243.
CH HI, \l.\ILRI.\L. F.ACIS

as to convey a defamatory meaning, it must be alleged that they were so

intended and understood. In an action for libel, the defamatory words
must be clearly set out in the plaint. When the defamatory sense is not
apparent, the 'innuendo' must be set out in specific terms." When collusion
is alleged between A and B, the fact that A knew the improper motives
which actuated B is niaterial)
Where a suit is brought under a particular statute, all facts necessary
to bring it under that statute must be alleged. When the rule of law applicable
to a case has an exception to it, all facts are material which tend to take
the case out of the rule or out ofthe exception. Where aparty claims the
benefit of special rule ofa particular school of F I indLi or M uhammedan
law, he should plead facts which would cause those rules to apply. For
instance, where a Muslim dies leaving three grandsons by one son and
two by the other son, then, all the five grandsons are his heirs. Under the
Sunni school of Islamic Law, all the fi a grandsons would take one-fl fTh
share each i.e., Per capita. Under the Shia school, the principle of
representation is applied and the grandsons take per snipes. The grandsons
otonc branch will have to divide into three of their father's halfshare.
while the grandsons of tile other branch have to divide in half. Hence it is
necessary to plead whether the deceased Muslim was a Sunni or a Shia
as the case may he.
A plaint in Bank suit must specifically disclose (a) the rates of
interest charged from time to time from the date of loan to date ofsuit,
(h) the rates of interest permissible as per circulars/directives of Reserve
Bank of India for the corresponding period. and (C) an averment that in
the statement ofAccounts, the debts regarding interest and other charges
are in accordance with the terms of contract and Reserve Bank of India
directions.' if proper particulars are given in the plaint, supported by
corresponding documents, the scope of disputes will considerably he
narrowed
Eflect of document Whenever the contents ofa document are
niaterial, it shall be sufficient in any pleading to state the effect thereof, as

17 Hai v. i.shitrn,, A [958 Cal 269.

18 B,ui.',lr . B,irannica. 59 LT 888.
19 I ija'a Bank v.5. Rhathija. A 1994 Kant 123.
 32 MATERIAL FACTS

briefly as possible, without setting out the whole or any part thereof
u:iless any precise words are material For instance, ha plaintiff, bases
his claim on a sale deed, rt is sifticient to say that A has sold the properly
to him by a deed, dated such and such. He need not state the words ouihe
deed which amount to it trarsfcr of til e title. At the same time, it is not
enou g h to sa y that he is entitled to thc property under a deed dated,
because this does not state the effect the document.
If a person, not party to a deed which purports to be a sale deed, is
entitled to show that the real intel 'itiort of the parties to the deed was to
create a mortgage, he should plead such intention and it will not he sufficient
merel y to plead that the plainti ffis only a mortgagee. This, it is submitted,
is too strict a view and the defendant, on his pleading that plainti fiwus it
mortgagee, should have been allowed to show how under a deed which
as a sale the plaintiff was only a mortgagee.
Damages : klo\v fir alle g ation ofdarna g cs sustained and other licts
affectin g dama g es are material and should be alleged in the pleading is
another question for consideranon. Damages are oftwo kinds: ( I ) General
damages and (2) Special damages. General damages are such a loss as
the law v ill presume to be the natural or probable consequence of-tile
delndant's act. The y need not he proved by evidence, e.g. in an action
for trespass or libel or slander b y words actionable l ier •ç
damages are allowed without any proof Such general words as "whereby
the plaintiff has been injured in his credit and reputation" or "whereby the
plaintifflias suffered dama g e" are sufficient. Rut, strictly speaking, even
these g eneral ords are not necessary. In such a suit, the plaintiffmight
only allege facts and end ith the prayer for award of damages- In a case
of road accident also it was held that no specific pleading is required for.
general damages.
Special damages are such a loss as the law will not presume to be
the consequence of the defendant's act, but which depends, in part at
least, on the special circumstance of the case. It must a l wa ys be pmvcd at
20 0.6, R.9.
1 PTi1i. Phils,(T87B),4Qf3t 12T -
2 Ran guhal v. Govinf, A 1949 Nag 243.
3 Minor Veeran V. K,ishna,noun/ji', A 1966 Ker 172.
cli ill] MATERIAl. FACTS 33

the trial that the loss was incurred, and also that it was the direct result of
the defendant's conduct. In man y cases, proof of special damages is
essential to sustain an action, e.g. a person has no right of action in respect
of public nuisance unless he can show some special injury to himself,
which is over and above what is common to others.
It will, therefore, be readily seen that special damages must always
he alleged in the pleadings as any other material fact. It is material because
it is required to be proved by evidence, and no decree can be passed for
it unless it is proved or admitted. Facts, with necessary particulars, must
be mentioned to show what special damages the plainti ffsuffered, and
that they were the direct consequence of the defendant's act. In a suit for
damages for incorrect valuation of answer-hooks, the special damages
must he alleged and proved.'
In cases when general and special damages are both claimed, the
latter should be speci fically pleaded, with particulars; for instance in a suit
for malicious prosecution, in which both the general damages for loss of
reputation and mental and bodily pain as well as special damages, e.g.
cost of defence, loss of professional business. etc., are claimed. But in
either case it is not necessary for the defendant to plead to damages. The
question of damages shall he put in issue and considered in all cases
without any pleading by the defendant. If, however, facts are alleged in the
plaint which are material only as proolofthe special damages claimed,
and the defendant means to deny those facts, he had better do so, as that
woLild at once give notice to the plaintiff of what the defendant means to
challenge, but as the defendant is not legally bound to do so, his omission
to deny any such fact would not amount to an admission by implication
Linder 0.8, R.5.
Facts in aggravation ofdaivages : In order to ascertain the nature
and extent of the injury done by the act for which the plaintiff clai ms general
damages, it is often material to consider the circumstances under which
the wrongful act was committed. Thus, in an action for trespass, the fact
that the defendant entered the plaintiff's house with a false charge that
plaintiff had got stolen property therein, is rr1atenal as increasing the amount
4 Subrat Ghosh v. Council of/ligher Secondary Education, A 1993 On 139 (DR)
5 O.8,R.3
34 MATERIAL FACTS Icli III

of damages; so also in a suit for damages for breach of contract to marry,

is the fact that plaintiff allowed herself to be seduced on the faith of the
promise. Such facts are called "matters in aggravation of damages".
Similarly, facts which tend to decrease the amount of damages are known
as matters ill of damages ". These facts are 1101, strictly
speaking, material to the cause of action or to the defendant's defence,
but are allowed to be proved only as affecting the amount of damages.
Under 0.6, R.2, all material facts on which a party relies for his
claim or defence should be pleaded in his pleading. It is true that 0.7, R.
requires the plaint merely to contain "the facts constituting the cause of
action". Even though facts in aggravation of damages cannot strictly be
said to constitute the cause of action for a suit, but it must be remembered
that this rule is not prohibitive. It does not say what a plaint should not
contain, but only la y s down what it must. That does not necessarily imply
that facts other, than those mentioned in the rule should not be stated in the
plaint, and when 0.6, R.2, definitely provides that a pleading should contain
all thc material facts oil the party pleading relies they should be
stated (whether they constitute the cause of action or not).
Facts in mitigation of damages : As to facts in mitigation of
damages, they should be governed by the same rule as facts in aggravation
of damages, because there is no reason why, if the latter are allowed to be
pleaded, the former should not. Just as the latter are material facts on
which the plaintiff relies for his claim, the former are also material facts on
;hich the defendant relics for his defence. Under the general provision of
0.6, R,2. therefore, they should also be stated in the defence,
notwithstanding the provision in 0. 8, R.3, noted earlier. Neither R Li le 3,
nor any other rule, lays down that a defendant should not, or need not,
state in his vntten statement the additional facts on which he relies in
mitigation of the damages claimed from him. The fact that a defendant
does not plead facts in mitigation of damages will riot, however, bar the
court from considering them when assessing damages!'
Facts not material at the present stage Having seen what facts
are material, it must further be remembered that no fact should be alleged
in the pleading which is not material at the present stage of the action,
6 Jansav.SK. Bcjnoo, 161 10593,A 1936 Nag 70.
(1 ii NIATF.Rl..\i. FACTS 35

although it ma y become material at a later stage, e.g. in view of the

objections o Ithe other party. It is not necessary to anticipate the answer
Of y our opponent and to state what you would have to state in answer to
it. A plaintiff cannot be expected to plead the facts on the strength of
v. hicli he could meet the defence or falsify the claim of'the defendants.
For instance, in a suit on a contract it is unnecessar y to plead that the
defendant was of full age when he entered into it. In an action for libel it
\VOL1[d be a bad pleading for the plaintiff to allege in his plaint that the
defendant it contend that the words are part of a fair and accurate
report of judicial proceedings but it is not so.
It is also not necessary in a suit for trespass to allege in the Plaint that
the detcndant committed tile trespass Linder colour of sale-deed alleged
to have been executed by the plaint[ ffbut that the said deed had ne er
been registered and is otherwise void. But ifyon know for certain that the
cover under v hich the defendant has committed the trespass and the
defendant has, prior to your suit, asserted his right under that cover, there
is no harm in pleading facts showing that the defndant's act under that
co\er was not j usti lied. For instance, i fa person takes a lease of 01111
iiimilv land lront aiuniormemberofthe famil\ and takes possession of the
land expressl y under that lease and gets his name recorded in the village
records on the basis ofthat lease, the head ofthe liniilv can sue him for
ejectment and allege facts showing that the lessor had no authority to
grant the lease, and that it is not binding on the other members.
Exceptions to the general rule The general nile, that all material
Facts, and material facts only, should he pleaded, is subject to the following
three exceptions
(i) Condition precedent : The performance or occurrence ofany
condition precedent need not be alleged as its averment shall be implied in
the pleading. I F, however, the otherparty means to contest the performance
or occurrence ofsuch condition, he is bound to set up the plea distinctly in
his pleading. For instance, A agrees to build a house for B at certain
rates. It is a condition of the contract that pa y ment should only he made

7 Liuuuavizn f)e i irj Temple v. Naravan F%iaratha, 1995 ( 2) Born CR. 610.

i 0, 6, R. 6.
 36 MATERIAL FACTS

upon a certificate of B's architect that so much is due. III suit for money
due to A, the obtaining of architect's certificate is a condition precedent to
A's right of action. In this case it is not necessar y for A to allege that he has
obtained the certificate. JIB intends to contest the fulli]nient of this condition,
lie should distinctly plead it. Under section 54 of the Cess Act (Bengal
Act IX of 1880), a notice is a condition precedent to the liability to pay
cess. A suit was brought for recovery of the cess but no allegation of the
notice having been issued was made in the pleading nor was any plea
raised in the written statement. The defendant was not allowed in appeal
to plead that no notice was seed upon him, and 0.6, R.6, was applied.9
Similarly, notices required to be given under the several Acts before
institution of suits, need not be alleged in the pleadings, except, of course,
where the law itself has provided to the contrary. For instance, the giving
of notice under section 80, C.P.C., before commencing a suit against the
goveniment or any public officer is a condition precedent, but it must be
pleaded, as section 80 lays down that the plaint shall contain a statement
that such notice has been delivered, but it is not necessary that the word
"delivered" Should be used so long as the plaint indicates that the notice
has been delivered, e.g., If it is stated that a notice under section 80 has
been given to Secretary to government by registered post, and that
registration receipt of acknowledgment due are put on the record.
Notice under section 80 was fonnerly necessary also in suits for
injunction against the government," but now a suit to obtain an urgent and
immediate relief against the government or a public officer may be instituted,
with the leave ofthe court without such notice. 12 Even though the provisions
of sect tell 80 have been held to be mandatory they are construed with due
regard to commonsense and to the object underlying the section; thus the
terms of the notice are not scrutinised in a pedantic manner. Substantial
compliance with the section is sufficient. 13 As for the defendant it is
insufficient to plead that notice under section 80 was Illegal-
9 Murlimanohar v. Raia NandSingh, 72 IC l.A 1924 Pat 205.
10 AIohanz,nad Faruq v Governor-General, A 1949 Pat 93.
11 Bhiagcl,and v. Secretar y of State. .A 1927 PC 176; State of Madras v. Chitturi
Venkata, A 1957 AP 675.
12 Sec. 80(2), C.P.C. as inserted by Act No. 104 of 1976.
13 See, Sec. 80(3), as amended by Act 104 of 1976; also Dhcin Singh Sob/ia Singh
v. Union of India, A 1958 SC 274; Ghanshayam Dass v. Dominion of India,
(}i UI I \IATFR1.-\L FACTS 37

A notice to the Railway Administration under the Indian Railways

Act need not he pleaded in the plaint, nor a notice under section 10 of the
In
Carriers Act. '4 a suit by a firm of partners it is not necessary, to allege
that the finn is registered as required by section 69 of Partnership Act. It
III he for the defendant to raise the plea that the suit was had for non-
compliance with that provision.' Where the plaintiff intends to sue in a
representative character. the la\\ required certain steps to he taken h him
to enable him to institute the suit, c.g., obtaining letters oladniinistraiion.
This is a condition precedent. hut 0.7. R.4. requires that this fhct should
he mentioned, inspite ofthe general rule to the contrar.
\Vhere, ho ever, a plai iti his conscious that he has not performed it
condition, and has good excuse for such non-peri'om'iance, he ma y, in his
plaint, state the condition, the non-perfonuance and the facts hich afford
him the excuse, e. g . that the defendant prevented or discouraged luni
from perfomiine it.
This nilc is not. strictl y speaking. an exception to the general rule, as
a "condition precedent" cannot be called a fact material for the cause Of
action of the plainti t1 it is only it condition superimposed on hat otherA ise
ould have hcen alid. Where, however, what appears to he a condition
precedent Is IlLit reall y so bLit is really a part ot'ilic cause o action ofthc
plai nti ft for the suit, the rule will not appl y and the perfomiancc otsucli
condition niust be alleged as an y other material fact constituting the cause
o [action, for example, dishonour or notice oldislionour in it sLut on a
ne g otiable instniment, or the readiness and '. 1 lingness of the plainti [fin a
suit [or speci 1k performancc or the service ofa notice to quit in the case
Of il suit for ejectment of tenant at will, a tenant from month to month or
a tenant from year to year. In a suit for ejcctment ola tenant on the ground
ollorfeiture under section Ill, Transfer of Property Act, it is necessary to
allege the giving of notice required by that section, not because it is a
condition precedent hut because it is a part oIthe cause ofaction.
(ii) Matters of legal presumption : Neither party need, in any
(1984) 3 S('C 46, A 1984 Sc . 1004; S/ia jt't,na/ Southern
. (,'n'ra/ tIuwg€'r.
Ru!,, au.', A 1995 Kant 219.
14 /.i Ba /'n v. Tan On, A 1938 Rang $37.
15 CI1L',,,v, Rani v. Ganga Saha.A 1961 Orissa 94
10 Hhaurafj Shamrao 13/icime V Afod/iurao Rag/un Yelekar, A 1979 Born 208
38 MATERIAL FACTS [CHili

pleading, allege any matter of fact which the law presumes in his favour or
as to which the burden of proof lies oil other side, unless the same has
first been specifically denied) 7 For instance, a plaintiff in a suit on a
promissory note or other negotiable instrument need not allege the
consideration, as section 118 of the Negotiable Instruinciits Act, raises
presumption in his favour. It is sufficient to allege the execution of the
pron&1e by the defendant unless, of course, consideration is made a
substantive ground ofclaini in the alternative. It is not necessary to allege
in the plaint tb" the dcfcndi"t executed the bond m phitutifis flivour
Without fraud, intimidation or coercion and of his own free will, because
the burden of proving any fact invailidating the bond is upon the
defendant. When defendant admits his thumb mark oil pronote, though
he is illiterate, the burden of disprovin g the consideration for it does not
shifi from him) But when a suit is brought on the bond ofapardanashin
lad y, it should be alleged iii the plaint that the bond had been read out and
explained to her, and she executed it of her own free will, after havine
independent advice, as it is for the plaintiff to prove these facts, 1 But i
say, in a suit for cancellation ofa promissory note, the plainti ifalleges that
it was without consideration, the defendant may plead that it was for
consideration.
Presumptions referred to in this exception are those which a court is
hound to mkc. III words, only those facts need not be pleaded
which a court "shall presume" within the meaning of the Indian Evidence
Act; but facts which a court "may presume" should be pleaded.
(iii) Matters of inducement it is sometimes desirable to
commence a plaint with some introductory allegations stating who the
parties are, what business they carry on, how they are related or
connected, and other surrounding circumstances leading up to the
dispute. These are not material facts, but they are allowed in England
because they explain what follows. They are called "matters of
inducement". On the analogy of English practice, they may be tolerated in
India also, but a good pleader always reduces such prefactory statements
to the minimum.

17 0.6.R.13.
18 Radha Raman v. Bhoji Ram. 1979 AU 237.
 F ..CTS, NOT EVIDENCE

Third rule of pleading: The third indaniental nile of pleading is

that every pleading must contain a statement of the material facts, but not
the e deuce by which they are to be proved.' The material facts on which
relies are Faciaprohanda (i.e. the facts to be proved), and they
should be stated in the pleadings. The evidence or the facts by means of
which they are to be Proved are Factaprobantia, and they are not to be
stated. They are not the facts in issue, but only relevant facts which will be
proved at the trial in order to establish the facts in issue. In some cases the
two kinds ot'l.scts are so mixed up as to be almost indistinguishable, e.g. in
cases ofcustoni based on village administration paper ( JJ?yib-uI-ar: in
L. P.). \ Inch is often the basis ofthe claim and its sole proof In such cases
the record has to he pleaded. So also, where the whole case is based on
entries in account books. But such cases are rare. Ordinarily, the distinction
between the two kinds of facts is so clear and sharp as to be easily
discernible and must he remembered when drawing up a pleading. It has
been held that in Punjab, ?jibu/-ar', Rcuaj-iam and Manual of
Customary Law which record customs are only evidence of custom and it
is not necessary to refer to them in the plaint but the plaintiff who alleges
custom is entitled to rel y on them; therefore, if lie has referred to Icajth-
ui-ar: in his plaint, lie cannot be precluded from relying on Reuiaj-i-am.
The question of appreciation of evidence is not to be jileaded, instead it is
the duty ofthe court to consider whether the documents produced by the
parties prove the facts in issuc.
An excellent illustration of the principlejust enunciated is contained
in an action on a policy of life insurance. 4 One of the terms of the policy
was that it would become void if the policy holder "died by his own hand",
and the defendant insurance compan y wanted to defend the claim on that
ground. It was alleged in defence that the policy holder had, for weeks,

1 0.6, R.2: Mohan Lal v. Kurkut t 'ipaduk Sahkari. A 1989 Raj 102.
2 Jwala Singh v. Province of Punjab, A 1948 East Punjab 59.
3 Birud Afal 5mg/ui v. .4nand Puro/:it A 198S SC 1796 (para 12).
4 Borradaib' v. Bunter, (1843) 5 Mau. & (J 639.
40 FACTS, NOT EVIDFNCE

been in a moody miserable state, that he had brought a pistol the day
before his death, and that or ' him was found a letter to his wife stating that
he intended to kill himself. It was held that all these facts were mercv
evidentiary facts and should not be alleged in the pleading, but it was
sutticient to say that the assured "died by his own hand". lithe l'acts ofthis
case are thoroughly understood, it would act as a guide in ver y many
cases arid tend to simplify and shorten pleadings. Many a pleader ould,
in similar set of circumstances, would be tempted to set out a long history,
ofthc nian's previous mental condition and of all his actions leading up to
the commission of the fatal act. This case shows that all this 'o ould be
unnecessary oil ground that they are Eacta proliwrtai and not Facia
pro han/a.
Another interesting illustration is olthe case in w hich the defendant
had pleaded all kinds olevidence to show that he was an Earl, and had
been received as an Earl and had voted as an Earl, ctc.,but there was no
distinct allegation that hc defendant was the Earl of Stirling. The result
was that the whole plea was struck out..'When the main ciucstion to be
raised in the pleading is that A had express authority to enter into a contract
oil defendant, it ma y he pleaded that "the defendant had
employed A as his agent to make the contract'', or "that A was the
tf,hk/rtclr-aaiir ofthc defendant, havin g under the . fuljrczr-nama full
authodty to make the contract oil derendarit , but it should
not he alleged that " whcn A made the contract he reprcscnted that he
as the defendant's agent'', or that "A has all along been re garded by all
the constituents ofthc defendant as having that authodty''. These avemienL
need be made only when a case of implied aLithority or holding out is
intended to he made out.
In a suit for damage resulting from defendants wrongful act. the
facts establishing the connection between the alleged damage and the
wrongful act should not be pleaded. It is sufficient to allege the e ronglirl
act, that the defendant caused it, and that the plaintiff suffered damage
thereby. In cases where time was not the essence of contract, it is sufficient
to allege that the work was (lone " ,xithin a reasonable time in that hehal F.
It should not be alleged that the weather was bad, that the men had -,truck
5 Drgb. v. .11exandcr, 8 fling. 416. 430.
 dliv) FACTS, NOT EVIDENCE
41

work or that there was any other reason why it took so long; that is the
evidence by which it has to be proved that the time in fact occupied was
reasonable.
Admissions The most common instance of pleading evidence is that
ofscttrng up previous admissions ofthe opposite party. Admissions are certainly
the best evidence of the facts admitted but they should find no place in a
pleading' Previous statements of the party pleading, corroborating the
allegations about material facts are also very often alleged in the pleadings. For
instance, in a suit for damages for assault, it is often alleged that the plainti fThad
made a report of the fact at the police station, or had filed a criminal complaint
against the defendant the same day. In a suit on lost bond, the fact that the
plaintiff had made a report of the loss to the police at the time the loss had
occurred is also often wrongly alleged in the plaint.
In a suit for recovery of the price of articles purchased by the
defendant from time to time, or for recovery of the balance due from the
defendant on account ofmoney borrowed by him froni time to time, what
are necessary to be pleaded are the various transactions of the defendant.
If the transactions are entered in a ba/iikhata, the entries need not be
referred to in the pleadings. If, as often happens, balances have been
struck and signed by the defendant, they are not to be pleaded as they
are mere admissions ofthe corrccti-iess of the previous items and therefore
mere evidence, unless---fl) they are set up as acknowledgements to save
limitation, or (2) they were coupled with fresh promises to pay, and are
themselves made the basis of the suit. In the latter case, the original items
are not to be stated in the pleadings. Both should be stated only when the
suit is based alternatively on the balance on the account stated and the
original contract. Similarly, alleging the fact that notices had been exchanged
between the parties, and in the plaintiff's notice he did not claim the amount
now sued upon, would be bad pleading on the part of the defendant.
It is most common for the defendant, in a suit for money lent, to
plead that the plaintiff is himself indebted and is not in a position to lend
money to others, or that the defendant is himself well-to-do man and
had no necessity to borrow money from others. All these are pieces of
circumstantial evidence and should never be pleaded.
6 BanwnQf v ,Vei'andmal A 1921 Sind 159, 83 IC 860.
42 FACTS, NOT EVIDENCE Cu iV

Three practical applications of the rule : The following rules

enacted in the Code of Civil Procedure are no more than practical
applications of the general rule that facts, and not evidence, should be
pleaded, and must be regarded only as its illustrations:
(1) Condition of mind : Whenever it is material to allege malice,
fraudulent intention,' knowledge or other condition of the mind orally
person, it shall be sufficient to allege the same as a fact, without setting out
the circumstance from which the same is to be inferred,' for the
circumstances would be no more than evidence of the fact. In a suit for
malicious prosecution, the plainti tishould only allege in the plaint that the
defendant was actuated by malice in prosecuting him. He should not allege
that he had previously given evidence against the defendant and the
defendant had vowed to take revenge, though he can give evidence to
prove these facts. In a suit against a defendant, on whose representation
of A's solvency, the plaintiff sold goods on credit to A, it is sufficient to
allege that "the said representation was false, and was then known by the
defendant to be so, and was made by him with intent to dccc ie and
defraud or injure the plaintiff' No facts or circumstances from which the
plaintiff has drawn this conclusion need be pleaded. But this does not
mean that full particulars ofthe fraud should not be given. It will not he
sufficient to say that the defendant committed a fraud or undue influence.
Particulars as to the nature of the fraud and how it was committed must be
alleged, but not the evidence by which it is intended to be proved. In
cases of misrepresentation, fraud, undue influence, breach of trust, willful
default and coercion, full particulars must be set forth and there can be no
departure from them in evidence. 12 Moreover, undue influence and
7 Intention is a question of fact and must be specifically pleaded, Puma iVaml
Puri v, Ka,nala Sin/ia, A 1965 Pat 39
8 0.6,R.10.
9 Vide C.P.C. Appendix A, Pleading No. 22.
10 0.6, RA.
Ii .dfsarS/ieik/z v. Soleinan Bihi, (1976)2 SCC 142.
12 Bishundeo v. Segoeni Rai, A 1951 Sc 280; Raja Sruuvas v. S.D. Mim:apur,
A 1962 All 590; Mashkumul Hassan v. Union of India, A 1967 All 565; Farcnro
Bi A ,nmal v. A.A. Me/iorned MoJiidecn, (1971) 2 ML.J 451; Bakslu Locliun Smgli
v. JattedarSantokh Singh, A 1971 Delhi 277; Musci Puhan v. Anthica Bewa,
1972(1) CWR 338; Bishnu Priya Dei v. Brusabhanu Maharqja, A 1976 Orissa
163; Kunhatnina Umma v. SpecuilTahsildar, A 1977 Ker41.
 I FACTS, NOT EVIDENCE
43

coercion should be specifically pleaded. Even though they may overlap in

part in some cases they are separate categories in law. 13 In a suit filed
against the government restraining it from taking any proceedings against
the plainti ff under Foreigners Act, plaint] If alleged coercion but did not
give particulars thereof. It as held that allegations ofcoeicion cannot be
taken notice of i The distinciton between a condition of mind as fraudulent
intention and fraud should be carefully understood. The former is fact
and can tllerlorc be alleged as such. The latter is an inference from facts
and cannot be alleged without the facts from which the inference is drawn.
Even in case olnegligence which is not correlated to state of mind, it is
neccsary to give particulars in the plaint. ' All particulars ofnegligence must
be 1iVCfl so that the opponent may be in a position to meet the case.'
III a case for damages for having been bitten by the defendant's dog.
It is su fficient
to plead that the defendant knew that the dog was of 'a
ferocious and mischievous nature. It need not be alleged that, on a former
occasion also, the dog had bitten another man ill the defendant's presence,
or that another man had wanlcd the defendant of ti l e nature of the animal,
for all illese facts would be mere evidence of knowledge.
(2) Notice Whenever it is material to allege notice to any person of
an y tact, Illalter or tilin g , it shall be sufficient to allege such notice as fact,
unless the form or the precise temls of such notice, or the circumstances
from which such notice is to be inferred, are material.'
There are many cases in which 11011CC has to be alleged as a nlatenal
fact. cc.. in a suit to recover trust propert y from a person to whom a
trustee has giverl it ul breach of the trust, or, in a suit where priorit y for
subsequent transfer is claimed or where marshalling is set up, or, where a
Prior Illorigagee claims to tack subsequent advance in pursuance of
contract in the mort g a g e-deed. In all such cases,it is enough to plead that
the defendant had notice of the plaintiff's contract or of the trust, etc.

] ThJuin,'/eo V. Scogoeni Rai, A 1951 SC 280 (para 34).

14 t/aini a V. Union of l,ulra, A 1971 Cal 507, relyin g upon 813/zunileo, supra.
15 1 inasjit, Thulers v. L'iuon of India, !LR (1965)2 All 127, A 1966 All 333
16 Pwijah ,\aoona/ Batik Lid v. f'O .in Ls/,iiar B/ia, La//thai Paid
ce., A 1971
Born 348; Gat'iarct v. Egrrion, A 1922 Pat 17.
17 0.6. R. 11.
44 FACTS, NOT EVIDENCE cn.iv

The circumstances from which the notice is to be inferred need not be

narrated, e.g., it need not be alleged that the defendant was an attesting
witness to the plaintiff's deed, or that the plaintiff had himself told him of
his contract, or that the defendant's son was present at the time of the
contract and must have informed the defendant of it.
Sometimes the form is, or the precise terms of the notice are, material
and, in that case, the same should be alleged. Ior example, when the
plaintiffclaims to have determined a monthly tenancy by a 30 days' notice
to quit the pleading should be like this: "On November 16, 1977 the
plaintiff served upon the defendant a written notice calling upon hini to
vacate the house and defier up possession to him on the expirv of
December 15, 1977.
(3) Implied contract : Whenever any contract or any relation
between any persons is to be implied from a series of letters or
conversations, or otherwise from a number of circumstances, it shall be
sufficient to allege such contract or relation as a fact, and to refer generally
to such letters, conversations or circumstances without setting them out in
detail. And it in such a case, the person so pleading desires to rel y in the
alternative upon more contracts or relations than one as to be implied
from such circumstances, he may state the same in the alternative)s The
reason of the rule is that what is really material is the effect of the letters,
etc., and the letters etc., are only evidence of that effect. The most common
example of implied contract is a carrier's contract to carry goods, which
is implied from the fact that their clerk or agent accepts the goods and
gives a receipt therefor. Similarly, a contract of tenancy may be implied
front payment and accptarice of rent. A contract of indemnity may be
implied where one who is only secondarily liable performs, under
compulsion of law, all for which another person is primarily
liable. In all such cases, the conversation, conduct or circumstances, from
which the contract is to be implied should be referred to in the pleadin-1.
with an allegation olthe contract to be implied. But though the letters,
conduct, etc., need not be set out in detail, sufficient particulars should he
given to specify the same. For instance, ifpayment ofrent is referred to, it
should be alleged when, by whom, and to whom was the payment made, and
18 0.6,R.12.
 (1-lIVJ FACTS. NOT F-VIDEN(I:
45

ofwhat amount. If letters arc referred to, their dates must be given. If
corlversatio ii is referred to, it must be alleged between whom it took piaLe,
when and where. Thus, "there was a contract to pay commission at the
rate of 75 paise per cent, interest at 50 paise and charity at 6 paise per
cent, which is to be implied from the conversation which took place
between the plaintiff and NI ulraj, t]ie Munini of the defendant, at the
plaintiff's ShOp on Basak/i Bath 2 when the transactions between the
parties commenced". Or, "an agreement authorising the plaintiff to sell the
said grain pits on the defendant's failure to comply with the plaintiff's
demand for more earnest money isto be implied from the correspondence
which passed between the parties in the month of Baisakli ] 979". Jt must,
however, be remembered that no amount of evidence can be looked into
For a ilea which was never put lorward. (On this, sec further. Chapter
post).
Whenever a party wants to rely upon a plea of estoppel whether as
an intentional inducement like the one UIS 115, Indian Evidence Act or a
promissory estoppel or an unintentional inducement envisaged by section
4 1. Transfer of Property Act or any other provision Of procedural law or
substantive law, facts relating to the same must be clearly statcd.Othervise
the other pal-t% , will not be Precluded from contesting the claim and the
courts ma\ ultimatel y find the pica unsustainable. 1 In an adoption case
where facts relating to estoppel were not alleged in the plaint, the High
Court did not allow such a plea to he raised at later stage. It observed that
the plainti fl - must have set up such a plea specifically in the plaint making
the necessary- averments for sustaining such a pica. I Similarly, where the
petitioners did not raise the plea of promissory estoppel before the High
Court, neither the plea emerged from the petition nor from the affidavits
filed before the Court, the Supreme Court held that the petitioners were
not entitled to invoke the doctrine of promissor y estopp&.2
19 .uIdik 110/lamed S/ia/i V. Mst Saran, A 1930 PC 57; Hnncliand v. Pea,-e Lal.
A 1942 Pc' 64; Rai V. AtoM. Majici, A 1964 Pat 348; State of West Bengal
-' Fakir .%folzammad, A 197 Cal 29; Hera-Singh v. 4th AddI. District Judge.
1979 ALJ 586; Aanagarazhiam v. Perumal, A 1994 Mad 247 (DB)
20 hi/ak B,-ot/,,', V. Union of hidia, A 1990 SC 2256;
I So/ianadij Pao. in Re., A 1933 Mad 42.

2 S/in Bku/ Oil Industries v. State o lGujrat, A 1987 SC 142

 Chapter V

FORM OF PLEADINGS

Fourth rule of pleading: The fourth rule of pleading is that the

material facts should he stated in the pleading "in a concise form" but
with precision and certainty. The pleading shall, when necessary, be divided
into paragraphs, numbered consecutively. 2 Dates, sums and numbers shall
he expressed in figures, as well as in words to ensure that the parties do
not at a later stage lake the plea that wrong dates, sums and numbers had
been mentioned due to accidental, clerical or typographical error.'
But it must be remembered that, while the pleadings should he concise,
the y should never be obscure. They should be both concise as well as
precise.' lfthc facts are lengthy they should certainly be given in all their
particulars and prolixity alone will notjustify the striking out oipleadings,
if the facts stated are all material.' The aim of the pleader should he to
state all his material facts with precision, but as briefly as he can. A specimen
ofbad pleading oil part of defendant in a suit for recovery of debt is
the following:
"The defendant does not know the plaintiff; he has never in his Ii ft
been to the plaintiff's house and has not borrowed the mone y from him.''
The pleading is defective because it is neither concise nor precise. It should
be something like this "The defendant did not borrow the mone y alleged
in the plaint or an y money from the plaintiff''.
Brevity : Each party should state his whole case with brevity.
Brevity can be attained---- (1) by omitting all unnecessary facts, (2) omitting
all unnecessary details when alleging matenal facts, and (3) by giving proper
attention to the language used in alleging material facts.
We have already seen what are the unnecessary facts which should
he omitted from a pleading. The y are, matters of law, matters ofe idence,
matters not alleged in the opponent's pleading, matters presumed by law,
1 0.6,R.2(l)
2 0.6,R.2(2)
3 0.6, R.2 (3), Intioduced by Act 104 of 1976.
4 L and L Insurance Co Ltd. v. Thnov Kumar, A 1945 Cal 218.
5 Davy v. Gaicit, (1878)7 Ch D 473; Geap v. %tai,i.s, 2 QRI) 630.
(.11.V] FORM OF PLEADINGS 47

the performance of conditions precedent, the words of documents, matters

affecting costs only, and matters not material to the case. The defendant
need not plead to the prayer of the plaintiff or to the damages claimed or
their amount.
As to details, only unnecessary ones are to he omitted. Those that
are necessary should in all cases be given. 0.6, R.4, requires that necessary
particulars should be given. This matter ill be dealt v ith more fully in the
NN

next chapter.
The lan g uage used should be precise, and a mastery of the
vocabulary and grammar of the language in which pleadings are drafted is
essential.
Precision : The other quality ofgood pleading, is precision, which
can be attained by remembering the followin g niles of guidance:
(a) Names olpersons and places should be accurately given and
correctly spelt; in any case, the spelling adopted at one place should be
adhered to throughout.
(h) Avoid pronouns, such as 'lie". "she". "this", or ''that'', unless the
antecedent is mentioned so close b y , that there can he no mistake as to
the person or thing to whom the pronoun refers.
(c) As far as possible, do not refer to the plainti t'ior defendant by
their names only. Call them "the plaintiff' or "the said defendant'', or if
more than one, "the plaintiff No, 1", "the defendant No. 2", or "the plain'ti if
Ram Chandra", or "the defendant Ahmed Hasan'', but, in whatever Nvay
You refer to a man at one place, refer to him in the same way throughout.
(d) Things should be called by their correct names and, in any event,
the same thing should be described by the same name. It is bad pleading
to call the same property "land with trees" at one place, "grove" at another.
"trees with the land under them" at a third place in the same pleading; or
"document, dated the November 24, 1974" at one place, "/iibanwna'' at
another, and "dan palm" at the third.
(e) If you are suing on a document, or on the basis ofall Act, use the
language of the document or the Act itself and do not invent your own
language, however correct it may be. For instance, if a policy becomes
void "if the assured shall die by his own hand", do not plead that "the
assured killed himself" or that "he committed suicide", plead that "the
 FORM OF PLEADINGS

assured died by his own hand". If a mortgage deed contains covenant that
"if the mortgagee is dispossessed by the mortgagor, the former will be
entitled. etc.", plead that "the mortgagee was dispossessed b y the
mortagor" and not that "the mortgagor has wrongfully ejected the
mortgagee".
(I) Allege your facts boldly and plainly, without beating about the
bush. "Ifs" and "huts" should he avoided as far as possible.
g) Avoid the habit of describing facts in passive voice, omitting the
nominative, c. g. the defendant's money was paid up. Sa y instead that
"the plaintiff paid tip defendant's money".
(Ii) Avoid complex sentences. Instead of u r ing one complex
sentence, it is better to divide the matter into several simple sentences.
The following is a had form of pleading: "The defendant, as the SOIi of A,
is liable to the plainti if in damages for breach ofa contract to sell his house
made b y the said A in favour of the plaintiff by an agreement dated
December 10, 1974." Instead ofthis. say-----
"1. By all agreement dated December 10. 1974. A agreed to sell
his house to the plaintiff.
2. A did not perform tile Said contract during his lifetime.
3. A died on --•, and the defendant is his son and representative.
4. The piainti f'fcalled upon the defendant to perform the contract
entered into by his father, but he refused to do so.
5. The plainti ffclaims damages."
(i) Divide vourpleadings into separate paragraphs. and state, as far
as possible, only one fact ill one paragraph.
(I) Avoid repetition.
(A') All necessary particulars should be embodied in the pleadings.
This rule requires a long discussion and explanation, thereJàre the
it/io/e of the next chapter has been devoted to ii, and it should he
read as a supplement to this chapter.
Forms : In order that there should be no error in pleading the
Legislature has prescribed a few forms of pleading which are to be found
in Appendix A of the Code, and it is required that, when applicable, these
forms, and when they arc not applicable, forms of like character, as nearly
CD V] FORM OF PLEADINGS 49

as may be, shall be used for all pleadings .6 They are to be taken only as
the standard of requisite brevity and as specimen of the character of
pleadings required but are not to be adhered to slavishly.'
Signature The law further requires that every pleading shall he
signed by the party and his pleader (i rany).s The object of this rule is to
prevent disputes as to whether the suit was instituted with, or without, the
plaintiff's knowledge and authority. If there are several plaintiffs, the plaint
Should be signed by every one o[them, though it cannot be said that a
person cannot be treated as a plaintiff until he has signed the plaint.
It is sufficient if one of the plaintiffs signs the plaint with knowledge
and authority of other plaintiffs. fl It is also sufficient i fone of the two
plaintiffs signs the plaint and both sign the vakalatmwta accompanying
the plaint.'' Under the General Clauses Act,' "sign" includes "mark"
also, in case of a person who is unable to sign. The thumb mark or pen
mark of a person not able to sign his name is therefore as valid as a
Signature. ' The Code of Civil Procedure further provides that the v ord
"signed also includes stamped.' 4 It is not, however, necessary fora perosn
affixing his name stamp to a pleading that he should he unable to write his
nariie.' But mere initials of person who can write his name should be
a oided. It shoiLld also be noted that a pleading shoLiLd be in existence
before it is signed, and therefore, signing a blank sheet of paper before the
pleading is drawn up is not in order, and the pleading written out
subsequently upon such sheet of paper would be defective. I fpleading
is not signed by a party his subsequent signature thereon cannot date back
to the date ofpleading.' 7 It is not necessary that every page of the pleadings
6 0.6,R.3.
7 Rain I'rasad v. /-Ia:wimcill, 134 Ic 538, 58 C 4 IS, A t9 3,[ 01 458-
8 0. 6, R. 14 Basdeo v. Smidt, 22 A 55.
9 0.6.R.14.
10 Bthi ..Lsghari v. M. Kasi,n, A 1951 Pat 323 Suju v. Swiri. A 1939 Nac 242.
Ii Raw Cha ran Singh v. Board of Revenue U P., 1968 ALJ 59.
12 Sec. 3(56)
13 itJohei ni v. Bungs, 17 C 580.
14 Section 2(20) C.P.C.
IS Maharaja ofBwiara.s v. Debi Dczvczl, 3 A 575.
16 Ci/1iri v. Kanhuir 15 A 59
17 Al .Muhnnt .4 vtar Singh. 69 PUrIJ LR 238.
50 FORM OF PLEADINGS [Cliv

must be signed by all the parties to it. 11

Proviso to the General Rule: 0.6, R. 14, which requires a party
to sign a pleading is subject to a proviso to the effect thai where the party
is, by reason of absence or for other good cause, unable to sign the pleading.
it may be signed by any person duly authorised by him to sign the same, or
to sue or defend on his behalf The words, "duly authorised" need not be
restricted to mean authorised by proper written authority or b y power of
attorney but may even be oral)9
It is only when the party is unable to sign the pleading that his agent
can do so. Mere absence is not sufficient; the absence should be of such
a kind which makes signature impossible. The words "other good cause"
are of wide importance and leave the matter in the discretion of (lie court.2'
The court should be satisfied, by affidavit or otherwisc, that there is a
sit ifi ci cii: reason for dispensing with the signature of the party, and that the
person who proposes to sign the pleading oil behalfis an authorised
person. A formal application should generally be made in such cases and
a formal order should be recorded by the court, but no notice of any such
application is necessary to be served oil other party. Though such a
formal application is nowhere mentioned in the Code. 3 ci it becomes
necessary in oider to explain the reason for the party not sigrin g himself
and to obtain a findinLy, from the court th:n the reason is sufflcicri, lhis can
also be stated in the pleading in a separate Para Cr in a no:t1 at the end.
It is not necessary that the person authorised should be authorised
specifically to sign the peading. A general authority to sue or defend on
behalf of the party is SLACICIIC But a pleader cannot sign oil fofthe
part y .' Where, however, the manager ol'a Bank gave power of attorney
to one of the directors, who was also a pleader to institute a suit, a plaint
signed and verified by the pleader was held to be regu1a1-. 4 In a suit for
recovery of money due on accounts, the plaint was not signed and eii lied
IS R. P. Nauiiya/ V. chandra Mohan, A 1985 All 118.
19 .411Intha & Co v. Ram, A 1961 Boni 252: Sub/na/i v. .t ;nkare. A 1948 Mad 396
Saiju v. Badri, A 1936 Nag 242; Bengal Jute Mills v. .f'cwraj. A 1943 ('al 13.
20 (liantha v. Ciaipat, 4 NLR I 1 7.
I Madan La/ v. Union of/nd/a, A 1955 Bhopal IS.
2 Kastalino v. Rustomfi, 4 B 468-
3 Leakaiv. Biseswar, 161C255, 16CLJ 578.
4 iVa,'t/,u Rap ti v. The Lyalpur Bank, 69 IC 422 Lab.


I )R\l )F ti\i)',t. I

by plaintiff but by the manager of plaintiff. Power of attorney as

produced at the time oftrial. It was held that the principal having rat Fled
the act olmanager. the defect stood cured.
The ay in which authority is obtained is immateria l., so long as the
authorit y is there, e.g. 1 F powerofattorney is obtained fromm a prisoner in
I ad in corltraventioii Of jail regulations, i.e., not through the Superintendent
of Jail, the authority is not invalid. It has been held that an agent,
iuthoriscd to enter appearance. can sign an amended plaint. ifthe suit was
• itiied \ ih ihc plaiii I sIp7rovai. - Fenauthcritv v i v C'l ater II1C
tiStitiitiOfl ol a suit to a servant who b.s siened the phain :,ririnallv
\ ithoi,it a formal authorit y was held to he sufficient.' h has c en been held
that where a suit was dul y authorised b y a person the question vhetlier his
ienai tire \ as made h\ him or Lw somebod y on his behalf becomes
ininatcria. The court should not make it Pctsh ofrii l e I - hut annlv it
o reason and eniurnon r.cnsc. [he Cow- 1 can al alto'.'.
piopeiv autliorised person in sign plain u.cr hrtlliiie that I ,.hail neci,
signed b uperori laekii popei auithort.. It is not chhia:or. In t the
d1Lth nsatien a!on '.\ th the jiIcadng.
\ eu-iIiu'atioti: In ad,hi :.on to hen. signed, tpleaJine has also to he
erihcd h\ tIi lrt\,nr 0. Oik'otIlie pwIfts p't
[)Cl S011 pro\ ed in the sauistction oithe court to he 1111 the

Iicts ofulie case.' The ahject ol' en Ication is to (ix iesnonsbi Ii'. fr the
Staleinent made.
Ihe distinction het cen the requirements olsi g nature and on iteation
siutuld he noted. While the pleading should he si g ned only by the party
tall the parties) or, in special cases only. by his authorised agent. it

11 ( S. /'tn \ .\ztn.i,l 'iiiIm/uct,-jc )'Si 2 \tl..t 40

6 flzsInacl-ar.V,7th V. 1.nipeiYn. 16 AU 64,44 IC 2$. 4() A 147
P01.,,11:')0, V. Fi rm. 2 IC I 36.
S It. Jn/z,oion v.5,,' Rnne'.'/:t-ar5':ngh, 144 IC 747 Pat.
Q Sn:y, Prasad V. BJ#'i Pozswi, A 199 Ng 242.
10 1? R.,S'I:nrm,: v. A'nnnk ( hand, A 1967 All 487.
II t!o/:J Lr/w:: v ..Oeihi II tq[Boarl. De'hf . ILR (1966)1 Pun 1 324.
12 '4 .%i(1I?g(It(n'1701111!1l(I, ( 1984) 2 An WR 292,
13 0.6.R.15.
14 Devi v. ('hai,man 1:icCtlo,? Tribunal, A 1056 All I 9 J. 11. Rrnv v. C TR .Se,tt'en.
.\ t01'( .1 269 1 4 K'2 1 5 (DB).
 FORM OF PLEADINGS [cliv
52

verification may be made by any one person, either the party, or any one
other person, acquainted with the facts. The laxity in
of the parties, or any
the latter case is due to the fact that, while signatures are necessary to
show that the pleading has been filed with the knowledge and approval of
the party, the object of verification is only to fix the responsibility for the
statements made therein upon some one,' 5 before the court proceeds to
adjudicate upon them. As false verification is an offence punishable under
the Indian Penal Code,' the responsibility of verification is very great and
should always be realised.
In the case ofveriflcatiOt, it is not necessary that there should be
some good cause before a party can be relieved of the duty of verifying
Il ls pleading, or that the person verifying is authoriscd to do so. All that is
necessary is that if any other person does that work, he should satisfy the
court, by affidavit or otheivise, that he is acquainted with the facts of the
case. It is not necessary to make foniial application for permission to
make the verification. Affidavits will not generally he required in cases
NN
here the person verifying are persons in charge of the business to which
If, however,
the pleading relates or are recognised agents of the parties.' 7
the rules of any High Court require that the fitness of the person verifying
Should he proved by affidavit, such affidavit becomes indispensable, and
it has been held that the rule is mandatory and gives no discretion to the
Judge to make exccptions.' But no one (except a party) should he
allowed to verify a pleading unless he is able to verif' the main allegations
on personal knowledge, for otherwise, he cannot strictly be said to he
acquainted with the facts. It is true that "acquainted" is a wide word and
may also mean "acquainted on the authority ofinformation received from
oth ers, but, having the proper object of yen fication in view, courts will
'
do vell if, in case the man verifying is not able to verify the main allegations
Oil
his personal knowledge, they refuse to regard such a man as one
acquainted with the facts of the case. Of course, about minor facts or
matters of detail, the verification may be on information received. But a
C.R.Seriven, A 1917 Cal 269,43 C 1001.
IS 8i.sd'o v.Smidt, 22 A 5; J.B.Ross V.
16 Section 199 I.P.C.
17 Kastalino v. Rustomji, 4 B 468.
IS Manindra Chandra v. Veiji MOW . 105 IC 564,31 CWN 1031, A 1927 Cal 773.
19 Port Canning Co. v. Dharnidhor, 9 CWN 608.
CU vj
FORM OF PLEADINGS 53

court has always general power to require the party himself to verify his
pleading,2 ° and this power should always be exercised when the statements
made are olscandalous nature, or where a party alleges gross fraud
based on facts known to him.'
The verification is not required to be made in the presence of the
court, but it has been held in Bombay that it is desirable that verification by
persons other than parties should be made before the court, unless there
are sufficient reasons for dispensing with the attendance of the person
verifying.3
Pleading by Banks, Corporations, Firms, Government, b
whom Signed and Verified : The above rules about the person o. ho
should sign and verify a pleading are subject to this modification that in
cases where a corporation is a party, pleading may be signed and verified.
on behal lof the corporation, by the Secretary or by any Director or other
principal officer of the Corporation who is able to depose to the facts of
the case.' This rule is, however, only permissive and not mandatory so as
to exclude the application of general rule in 0.6, R. 14, hich applies to
companies as well as to individuals. A company can, therefore. authorise
sonic other person to sign on its behal f. But sitnature olall attorney of
the Secretary or Directorwould not be sufficie110 When as per the Articles
of Association of company a suit on behalf ofthe company has to he
filed with the consent of Directors of the company but it was filed b y the
Secretary who had a general power of attorney from the Directors, the
suit was held maintainable as the action taken by the secretary was approved
bv the Directors subsequently. 7 The person verifying a pleading on behalf
20 Raja ofTomkuht V Braidrood 9 A 505.
I Ba,jeslnar. Budhanudth, 6C 268.
2 Jardine Skinner v. ida/za,ani Su,ionnec, 24 \VR 215; Pratap Cha,ulrri v. Kroto.
SC SS5.
3 Ka.talino v. Ru.tomj, 4 B 468.
4 0.29, R. I: United Bank affiulia v NCIresh Kumar, A 1997 SC 3.
5 Bunth Portland Cement Co v. Abdul I-hoaw. A 1936 Born 418; Calico Pilntl!I
.-lssoc:ithon v. .4,A. Karim, 128 IC 557,32 Born LR 1305, A 1930 Born 566; South
lie/ia Corporation v. Stoic-Trading Corporation of India Lid. Cochin, A 1970 Kcr
138;JuilhiterPrusti v. Koshal iransport Trading Co., (1971)37 C1.T 108.
6 Osborne Garret & Co v. Raisi, 100 IC 450 (Sind); Delhi and London Bank .
Oldhc.,n, 21 C 60.
7 Tu,neritforrison & Co. Ltd. v. Hungerfordlnvc'stmflCiJt Trust Ltd. (1972) 1 SCR',
887.A 1972 SC 1311.
54 FORM OF PLEADINGS [CH.V

of corporation must prove by affidavit his fitness to verify even though

upon in formation or beiief. But there is nothing in the Code which makes
it obligatory to state in the body of the plaint or by affidavit that the person
sionin 01' VCl'i fy in g is ail able to depose to the facTs of the CSC•
\Vhcre a plaint was signed and verified by the secretar y who was
empowered by the Articles of Association to do so and an averment to
that effect was made in the plaint, a separate affidavit was held not
necessary.
This rule does 1101 appl y to unregistered companies as the y call
onl y in the names of their members, but it does apply to foreign
corporations, in case of partnership firms the pleading ma y be signed
and N en lied by any one ofihe partners." or as provided in 0.6, R. 14 or
15 b y an' other person in the circumstances stated above.
In a suit by or against the government the pleading shall he signed by
such pCI'SOn as the government ma y, b y ge
n eral or special order, appoint
III
behalf, and shall he\ erified by an y person 'vllOfl1 the govcninient
niav so appoint and who is acquainted with the facts olthe case. 13 a suit
Nv or against a Bank represented by the concerned Branch Manager, the
pleadings may he signed and verified by the Branch Manager.
Mode of\'erificatioii : The proper mode ofveriuication is that the
CSOn verifying shall specify, at the foot oithe pleading, by reference to
the numbered paragraphs of the pleading, what lie verifies of his own
knowledge, and what he verifies upon information received and believed
to hc true. The en ficaton shall be signed by the person makin g it and
shall slate the date 01) which, and the place at which it was signed.'' Where
the number olthe plaintiffs exceeds more than one, any one of them can

S /n'inciltnnal C ('Co. V. tie/na & Co., 105 W56,9, 31 C'WN 1030, A 1927 Cal
186: Thri Cw,i,,,,' Co v. D/,ar,,id/,ur. 9 CWN 608.
9 Bend: Portland Cement Co v, Ahul Jiussa j,,, A 1936 Born 418.
10 Gopa/ganj L. Bliandar Litt, v. Puma Chandra, 40 C\VN 930.
11 S,n,er fanufi':eiurO:g Co. v. Baij Nat/i, 30 C 103.
12 0.30, R.l (2): LO. Deval.cvv. Per var 0-edits, A 1994 Ker405.
13 0.27,R.1.
14 Lines/i Cliandra v. Siate Bank of intha. A 1987 Orissa 67; State Bank offiitha
. Kavhnur .4i': Printing Press, A 1981 P & H 188,(1981) 83 PLR 300,
15 0.6, R.15.
 (ii \' FORM OF lftFADIN(s

verify the plaint.°' The names ofthe person from whom information is
received. may or may not be disclosed.' 'A verification in the fol]owing
words was held to be bad: "To the extent of illy knowledge, the purport
ol'ihis is true''. "contents ofparas 1-11 above are true to the best ofmv
knowledge and instructions''." A verification to the effect that "the con-
tents are substantially true" is not sufficient.-
Defects of Signature or Verification : Want of signature or
y en fication or an' defect in either will not make the pleading void, and a
stilt cannot be dismissed nor call defence he struck out simply for want
oil or a defect in the signalui -e or verification of the plaint or written
statement.' as these are matters of procedure only. It has been treated to
be a mere irre2ularltv and curable b y amendment. The defect ma y be
cured b y ainendmcnt, at any slate oI'the suit. and '. hen it is cured h'
an 1L1;!ment, the iam must he taken to have been presented oil date
on \ hich it \vas ongnahiv presented, and not oil tiate on Inch it was
16 1? P .Va:einof V. (Jandra •t Ia/ian, A 1985 All 1 18; 13th, .4.'g/iar, ..tld AaciIn,
A 1951 Pat 323.
17 R,is 5i,'ani .\a, ',m.i; Co, N KI,nia. 38 C\V\ 55 1,34 (632. 53(1..! 391.
15 Go(1Son V. Kan ihi\(I Li,!. 15 A 59.
I') SI, .S'oIihic.' Kiani ui v. ./ugraj. A 1949 Ajmer 37.
201! ti gan'iv, thou,;. ',1 imw Pi .2
1 ('ham/i-a Sa.har Rai Stalc'. A 1984 Pat 167; .1runacl;e3un; v. Prahlia,-a 1912
1207; /3a.a/u-o v. S,n,1,, 22 A 55; Vanilla! v. SaJom. 165 PWR 1911: Rapt
IS A 396; Ru.cto,,; . Tara, I I C\VN 871: Foul, ('haunt v
20 A '142; /i.,Sah1;a i Kunn:-ir v. Ju,aj. A 1949 Ajmer ',7 -,41/ India Rc'piuitci- V
Roma( I,a.n,'a, A 1 Q61 !3om 292: Aaron .Vaigh - Ran; Ruclipul .i,nl;. .'\ I 97
it P 28; Sc,nd,'a Pnuerw Ltd v. Sric/;and 1996 AIHC 5005 Dcliii
2 ii oh .'t// I.'./,ak/,, 1931 AU 772, A 1931 All 507. 134 IC 26: P.4 Zippelv
A'1), Aijna-. 1932 Suid 9. 139 IC 114.
3 SI,iAhu La! v. Bm lie/la PathaA-, A 1992 All 358; idled on SI;iraka Raillia;
Sin - an, Rain Kumar v. Raop Singh Rauliore, A 1964 SC 1545; / T C Ltd v.
P/no-ha Lama, A 1992 Sikkim 34; NamI K/shore v. BhaiA''r,A 1958 All 329;
Gauri Kumari v. Con;inisswnn- 1. Tax, A 1960 Pat 270; Purus/zo /iam,dn-al/a/i
13/ia, & Co. v. tIan,Ia/ Sons. A 1961 SC 325: Koran Singh v. Ram Rachpa/
Singh, A 1977 1111 28: Kaila.sl; Sing/i v. H/rain!. A 1994 (iau 12.
4 Basdeo v. Smith. 22 A 55; Nandlal v. Sorkonj, 165 PWR 1911; I VJoI;nsto,; v Sir
Rame.shwar Singh, 104 IC 747 Pat; Shibdeo v. Rain Prasaul, 46 A 637,22 .ALJ
690;Subhial; v. Sankarapandious, A 1948 Mad 369. 1948 MWN 190, 1948 MU
227; Dutha in//n, v. Jadumon,, A 1954 SC 411
 FORM OF PLEADINGS [CI-! V
56

amended.' If the defect is discovered in appeal, the Appellate Court may,

If it thinks fit, have the defect removed, but where the defect is such that it
does not affect the merits of the case, no notice of it need be taken.'
When an objection to such defect is taken, the court should not
frame ail on the point, but should get the defect at once removed.
Where, however, it is shown that the sui I was not filed with the knowledge
of the so called plaintiff, it should be dismissed and the mere fact that a
pleader, having general power of attorney to sign plaints for him, has signed
the plaint will not make it a valid document.
An objection that a plaint has been signed by an incompetent person,
not raised before the trial court cannot be allowed to he raised before
the appellate Court. Where the plaint was not signed and yen lied properly,
but the plainti ff in the witness box proved his case, it was held that the
plaint could not he rejected on account of want of signatures and proper
yen flcation.
While construing the various procedural provisions the courts should
always hear in mind that"as far as possible, no proceeding in a court of
law should be allowed to he defeated oil technicalities". As aptlY
observed by Justice Vivian Bose dealing with the Code ofCi ii Procedure:
''It is something designed to facilitatejustice and further its ends not
a penal enactment for punishment and penalties; not a thing designed to
trip people up. Too technical a construction of sections that leaves no
room for reasonable elasticity of interpretation should, therefore, be guarded
against (provided always thatjusticc is done to both sules). lest the very
means designed for the furtherance ofjusticc he used to frustrate it."

Rain Gopal v. Dhire'id'a [UI [C 573. 31 CWN 397 but see. cha, .S,JIIh.
S
.'. la/taut .1 uiar Sing/i. 69 Punj LR 238
U Section 99, C P.C.: also see. B R .Sharma v. Nananh Clitind, A 1967 All 48.
Suhbiah v. Sankara, A 1948 Mad 369,
7 tialiabiu' v. Shah Wahid.41am, ii AWN 152.
Born 373.
8 Clara .4 iiroio de Branganca V. S''lvia .1ngela A /vares, A 1985
9 Kailaslt Singh v. I-/ira Lai Dev, A 1994 Gau 12.
10 GhanshvwnduS v. Data, of India, (1984) 3 SCC 46 (para is).
Ii Sangrain Singh v. Election Tribunal, A 1955 Sc 425.
 ChapterVII

PARTICULARS

Particulars and their Importance: In every pleading a certain

amount of detail is necessary to ensure clearness and to prevent the other
party from being taken by surprise. The term "Particulars" has not been
defined in any enactment. As observed in the election case of Hari Dos
as the details of the
"shortly stated. 'Particulars ' ,nav he described
of
case set up hi f/ic parft." No precise rules about the degree
particularity required in any case can be laid down, but as much cci aint
and particularity should be insisted on as is reasonable: and a party is
entitled to a fair outline of the case of Ins opponent, and to lime any and
every particular that will enable him to know hs opponent's case and to
of the
prepare h i mselfaccordingly: though he is not entitled to disclosure
evidence of his opponent. It oil td hoever, be no excuse for ithholding
particulars that the ill also disclose some portion ofthe e\.'( ence. 4 For
i nstance, in sLnt for infri igemeill of trade mark on the allegatioti that the
use of the trade mark b y the defendant had in liet induced "dix erse persons
to purchase defendant's goods as the plainti ft's goods, the plainti Ifis bound
to disclose the names of such persons. The object of giving particulars is
to narrow down issues, by limiting the inquiry at the trial LO matters set out
in them, and a party is not entitled to go into any matters not included in his
particnlars.' It is, therefore, the dut ofeveiy pleader to apply for further
particulars of the pleadings ofhis opponent, here no particulars are given
or they are not given in suflcient detail, even though he call a shreid
guess as to what is really meant, because he will thereby be able not only
to prepare himsellwith his defence, but also to pin down his adversary to

I f/ni Dos V. Him i Lal. 4 El .R 466.

/h,Ii/.at'oiih. ( tS76) 3 Ch 1)637; Ph/ippc .
/'hilipp.s. (1 8 7 8) 4QBl) II 7.
2 ihn,j'
u1itnII. 21 Al .1
JnP1(c, ( 1877)7 Ch [) I I 7; Can,i .
ifunC
171'i5
571.45 A 624.74 1C466.A 1924 AU 17(DB).
7 Crc'v. (innwaj. 17 IC 214. .\ 1937 Cal 129.
Zwrt'nheg v. Laboiiiliei€'.( I S93)
1 .thjirwt( V. ('hw,iherLun, 1886) 1.7 Q131) 154;
2 QB I S3; Bishop v. Bishop, (1901)70 LJ 93.
5 Humphries Co. v. l3ii.' Ta ylor Drug Co.,
(1888)39 Ch D 693.
6 i,oh' v. Broad, ([892)2 QB 317.
58 i\l III .1 AIRS 1 ii

a definite case: lie is entitled todo this under 0.6, R.5. lfpartieulars are
not given, and neither the opposite party app!ies fur them nor does the
court insist on their being set out in the pleading, the party pleading 01.11d
be entitled to g ive evidence of all and an y facts hich support his allegation.'
It is the dut y of the court to insist that full particulars should he given
in the pleading. In the absence ofproper pleadings under Sec. 70. ('oniract
Act, the plaint should not he entertained. In a case in hich only general
alle g ation of immorality were made without giving sufficient particulars.
the 11 1 1-1 11 Court held that it Was the dut y Of the .ludge to have the whole
general paragraph struck out. 1ui neither the right otilie de ft'iidarit nor
the dut y ofthe court to call for particulars. i t'necessarv. can he an y excuse
it
for a plamti ffiiot giving full pail ic lars in his plaint. In br public nght
when the plaintiff had nol gi cii details of tile special damage suticred. tile
Calcutta Hi g h Court refused to listen to tile ar g ument that the defendani
could ha e got the ni formation i b'lie had appl;ed h r part icukus \\ here
tile deicndant nicre!v pleads ihat the donor necer c\CcliiCtl ci 1-deed in
I ii' our ofilic planilitil hut does not plead that because itbeit]el phi. sical or

ental disahi h tx or because of illi teracv. the donor did not ha'. c all:
knov, ledge about the execution of the gift-deed. there is total ahscnce of
pleading ofiraud. undue in tluence and or misrcprcsentation. and in the
absence ofihe plcadi igs it is not open to the court to allow an y evidence
oil score.
(.l.' to it hell I? iI('UIt(IS .Ititi'I he OJ'(/'1I'(/ 00(1 t Iic,i fre/iLL'(/ S('
(I/co ('/iaptc'r 1111. /O.\t)
Flow far it is necessary, to set out cktailsoltimc. place. account, etc..
in the pleadings, is matter whiCh a pleader should carefully consider.
it

V111111R.Im i"! t(' i.i'i \i

S //etooii . ( 7t''te. ii 904) 2 Ii. F 530.
9 1 i:',;, 'r /,a' tin,,' w' (jo ./. .\ '17" 51 3 2' . I It, ['oil,,, '"1
I ,,ciiz inthi. \ 1Q-7 s( 2052; 'cc ako j(/ (:.,',,I/,,:r fl,',!: '. 'it, ) lei;
itt

Pam/it. 1 913-141. 22 1.('Li tO ('WN 729. 0,'\U 570 )9 \I1.J 33. (oi,,, .Siiw,!,r
N, .hank, /Otitit'tit', 2) AL S7 1,45 .'\ 624. 74 IC -tOO
0 .Iagthtlz v. !Itia/tliil. i 40 IC 555 1911 ..\I -J 67 I
It Raj ('ham/rn V. laIitm (7ianil,a, .A 1936 ('at 549, 91 IC 728; sec atst.t. .S',ta''w,
v, /1w', Ruin, 165 IC 24,40 C WN 9j3
12 Santaizu Kwnw Da.t v. Buiru,,'/ ('hw'wi Das, A 1995 On 300.


OH VT] FAR FICUl ARS

Experience and common sense, more than any hard and fast rules of law,
call best teach him this. In the Code ofCivi I Procedure, it is laid down that
particulars must he stated when fraud, breach of trust, wilful default or
undue influence is pleaded. In other cases. xx hen more Particulars than are
cxeinplifled in the Foi-ms iii Appendix A are necessary, the y arc to be
stated.'
It must ))CC] eilr]V understood that under 'particulars' only such facts
as are the details of the facts stated in the pleading can be set out, and no
new material altogether based on an entirely different cause of action can
be introduced, as that would not be permissible under 0.6, R.7. 14 The
distinction between particulars of n,atc,-uil fact and niatelial fact itself
IS flue one. but is \erv important and should not be lost sight of. "Material

Fact'' is an essential element Of tile cause of action and if any material fact
is omitted, the plaint is had and can be rejected under 0.7, R. 11 (a).
Particulars are the details of !nalerial fact which are necessary for the
oilier part y to know to prevent him from bein g taken b y surprise and to
nanov the Issues An otilission to give such particulars does not necessarily
entail rcjcci?on oithc plaint but the court ma y make an order f'orsubmjssion
olnccessai-c particulars. Rut there are certain particulars without which
n al lenal ion otniatenal thct does not amount to a good averment of that
tjjct at all, e.g. an allegation of fraud. The omission olnecessary particulars
II make the averment of it material fact like fraud bad and liable to be
struck out aliocther. These particulars are different from those required
To nan-ow the issues or prevent surprise, absence of which does not entail
rejection of the plead itit, but gives the other party a ri ght to ask the court
to order particulars.
The rule relaiinu, to particulars has assumed greater importance in
election cases. Sec. 123 of Representation of Peoples Act, describes
V111 , 10 us corrupt practices and under the law particulars of even corrupt

practices alleged have to be given 'tithe election petition. An election

petition is, however, construed strictly and unless material facts have
alread y been stated in the petition the same cannot be allowed to be
introduced subsequently, i. e., after the expiry of tile period of limitation
I.' .
14 tIthnu v. .'iIaiz .,'h. A 1937 1 ah 795.
60 PARTICULARS (cHVI

for filing a petition in the garb of furnishing particulars However, if material

facts are already there the particulars can be allowed or required to be
furnished later) 5 The Supreme Court while discussing the importance of
particulars observed:
"There can be no reasonable doubt that the requirement of full
particulars is one that has to be complied with, with sufficient fullness and
clarification so as to enable the opposite party to meet them fairly and they
must be such as not to turn the inquiry before the tribunal into a rambling
and roving inquisition".'<'
Certainty as to Time: Dates where necessary should always be
given, e.g. date of notice, date of rent or debt falling due, date of default
or breach where the cause of action is based on it, date of execution of
bond or promissory note, date of sale of cacti consignment of goods in
suit for price of goods supplied.
Places: Places should be definitely mentioned, so that they can be
properly indentified. Particulars of the property about which a claim is
made should be clearly specified, so that there may be no mistake about
its identity and no difficulty may be experienced at the time of execution of
the decree. If it is a house, it should be described by its number, name of
the street, or by the boundaries or by numbers in the Kiwsra or other
village record. If it is an agricultural field, full specification out as given in
the village records(e.g. number of Khatauni or Khusrc, etc.,) should be
given. 7 When area of property is mentioned the area according to the
notations used in the record of settlement or survey should he stated,with
or without, at the option of the party, the same in terms of the local measures.
Account : In a suit for money, particulars of the account by which
the amount claimed has been arrived at, should be given. For instance, if
15 Satnant N. Ba/krishna v. George Fernandes, A 1969 SC 1201; Hardwari Lai v.
Kanwal Singh, A 1972 Sc 515; Udhav Singh v. Madhav Rao Scintha, A 1976
Sc 744; Manubhai v. P.M.Joshi, A 1969 SC 734; Z,audthn Bukhari v.
B.R. Mehra, A 1975 Sc 1788; Ba/want Singh v. Prakash Chand, A 1976 Sc
1187; Vatal Vagaraj v. R.D. Sagar, A 1975 Sc 349; Zeliang v. Aju New,nnz,
A 1981 Sc 8; Dhartipakar v. Rajiv Gandhi, A 1987 SC 1577; Rain Charon v.
Bhola Shanker, A 1987 All. 134; Subliash Desai v. Sharad J.Rao, A 1994 SC
1733; see also ManoharJoshi v. NP. Pall!, A 1996 SC 796.
16 A. Bhikaji Keshao Joshi v. Br j 1alNand1a! Biyani, 10 ELR 357 SC.
17 0.7, R.3.
 Cii vil PARTICULARS
61

the suit is for the total of several items advanced at different times, each
item with the date and amount should be specified. If a principal sum is
claimed with a further sum as interest, full account of the calculation of
interest should be given. I fpayments by defendant are credited the plaintiff
must not merely name a lump sum, but must state the dates and items of
the amounts credited A mortgagee III admitting receipt ofcertajn
sunis on account must give particulars of all sums received. But i ía genera]
account is claimed and the court agree that such an account must be taken,
then no such particulars need be given.
Adultery : III the case of adu ltery, which is a charge of very serious
nature, the pleading should be specific, the pai liculars ofthe time, the
date, the place of commission of acts of adultery must be specific so that
the opponent can defend the case.
The charge of adultery is a serious charge and casts aspersion oil
character of the spouse which affects the reputation of the spouse in the
society. It is to be established beyond doubt though it may he difficult to
find direct evidence for establishing it. The spouse against whom the charge
is made should he aware of the precise allegation so as to be able to
effectively answer the same. In case the charge is vaguely made, without
furnishing the particulars, it would not be pusiblc for the spouse to do
so. IS

Misconduct : General Misconduct consists of various things such

as fraud, undue influence, coercion, collusion, misrepresentation mistake,
negligence, breach of trust, etc. Although most of these are cognate vices
and may in part overlap in some cases, they are, in law, distinct categories
and are in view of 0.6, R.4 read with 0.6, R.2 required to be separately
pleaded with specificity, particularity and precision." It is no excuse for
the omission to say that the opponent must himself be aware of that fact.
Your opponent is entitled to know the outlines of tile case and to bind you
to a definite story so that he may be able to meet it. 'their Lordships of the
Privy Council have enjoined all judges to compel a litigant who pleads
fraud and such other misconduct oil part of the other party to place on
18 Paravail v. Shiv Rain, A 1989 HP 29.
19 Afvar Sheik v. Solemaji, A 1976 SC 163; BLchan Dcv Narajn v. Seogeni Rai,
A 1951 SC 280; Kanagarallzinam v. Perunial, A 1994 Mad 247.
62 PARTICULARS fC'H.VI

record precise and specific details of those charges and observed that
cases of such type v ould be sim p lified if this practice is strictly observed
and insisted upon by courts, even 1 liio objection is taken by the opposite
party.'
0.6, R.4 requires that particulars of itenis, if necessary. should be
stated in the pleadings. This will bring about precision in pleading; prevent
surprise to the other part y and ensure a lair trial. A bare denial of contract
is not denial of the legality or sufficiency in law (0.6. R.8). It is not
permissible to introduce by way of particulars a plea of misconduct other
than that raised in the pleadings.' Some acts of misconduct relate merely
to the state of mind of the person charged and some to specific acts of
commission or omission. In the case of the former, particulars olthe state
of mind may not be necessary to he pleaded because it is impossible to
probe into the mind ofthe person. 0.6. R. 10 lays down that wherever it is
material to allege r ialice, fraudulent intention, knowledge or other conditions
of mind of any person, it shall be sufficient to allege the same as a fact
without setting out the circumstances from which the same is to be inferred.
But in the case of the latter. it is necessary to state particulars of the
misconduct on the part of the other party. There are many cases in which
actions Of public bodies or officers are challenged on the ground of mala
files. General and broad allegations of lack of honafile are not sufficient.
Something more specific, more direct and more precise is necessary to
sustain such a plea. It is also well settled thai. it is not permissible to introduce
by way of particulars a plea of misconduct other than that raised in the
pleadings.
Fraud: Fraud should be pleaded with the greatest possible care and
party pleading it must fully realise his responsibility for doing so. Counsel
should preferably refuse to plead fraud without having lull and definite
instructions in writing from their clients, and even then they should warn
their clients before-hand of the risk the latter runs by pleading such a
20 Blzarai Dhar,n Sv,ulzcate Ltd. v. !-larishchandra, 41 CWN 4 7 6, A 1937 PC 146.
1 Bnjendranath Srivastava v. Mavank Srivastava, A 1994 Sc 2562; Union of
India v. Pandurang Kashinatli More, A 1962 SC 630; Swarnalat/ut Devi v.
Krishna Iron Industries and Metal Works (P) Ltd., A 1974 Cal 393.
2 Kosaraja Venkatta v. Govt. of Andhra Pradesh, A 1965 AP 425; Kedarnatl,
Bahal v. State of Punjab, (1978)4 SCC 336.
CH VII PARTICULARS 63

grave charge. A charge of fraud is a serious thing to bring against a man

and it cannot be easily maintained in any court.' In our country, fraud and
other allied charges are often very lightly pleaded. The words "fraudulently",
"dishonestly", "wrongfully". "cunningly", etc., are frequently used to qualify
the acts and conduct of the opposite party, without fully realising the exact
and legal meaning of those words. A pleader must insist on full particulars
and details of the alleged fraud being given, and should never plead that
charge unless a clear case of fraud is made out from the facts supplied to
him. Mere suspicion is not enough, there should be circumstances
incompatible with honest dealing.'
Where fraud is alleged as a matter olan objective fact, 0.6, R.4,
applies and particulars must be given. But where a mental condition is
alleged, such as fraudulent intention. 0.6. R. 10, will apply and no
particulars need be given. Thus the question olbonafides is one olmental
condition and is covered by 0.6. R. 1 0.'
Before drafting a plea olfraud. the definition of that word in the
Contract Act (section 17) should be carefully read and it should be seen
whether the facts to be alleged fall within that definition. I Ithev do, and if
it is decided to plead fraud, it should not be pleaded generally, for there is
a well known rule of pleading expressed in the frequently quoted language
of Lord Selbourne that " ith regard to fraud, it'therc is any principle
which is perfectly well settled, it is that general allegations, however strong
the words in which they are stated, arc insufficient even to amount to an
averment of fraud of which any court can take notice".' Specific
allegations, with 11tH particulars as to what the fraud was, how, by whom,
3 Le Lie',e v. Gould, (1893)1 QB 491.
4 Iiansraj v. Dehra Dun Amussoorie Electik Thmi Co., A 1940 PC 98, 187 IC 787:
K Kwiakarat/tnam v.,+ Pc'rwnal, A 1994 Mad 247: Pwlmnri .lis6ra v. Rame. h
(I,,t,ztha ,tI,shra, A 1991 Orissa 263 Rakhal Chandia V. Pro.sad Chandra.
A 1926 Cal 73,90 IC 2263 (DB).
S Din/ia, Dins/,aiv Petit V. DOlnuiwn of India, A 1951 Born 72.
6 tf'allingfo,d v. Mutual Societ y , (1880) 5 App Cas 685; Raj Narain v. A/nj/is
Sa/,ae, 104 IC 821 Pat; CD. Lincoln v. Sheikh Noor Em/si, A 1943 Oudh 192,
Bishu,uko v. Slseogeni. A 1951 SC 280; Bharat D/iatnuj S yndicate v. Harish
Chandra, 64 IA 143 (147); Union of India v. Pandurang Kashinath More,
A 1962 SC 630; Raja S p inivas v. S.D.0.,1tlir:apur, A 1962 All 590; Kastur,
La'anilea,a,n,na V. Sahvitres Venkoba Ruo, A 1970 AP 440.
 64 PARTICULARS HI

and when was it committed, should be given,' and ifsuch details arc not
given in the plaint, in a case founded solely on fraud, it is liable to be
rejected! Where fraud is alleged, particulars thereof should be given and
the allegations constituting fraud must be clear, definite and specific.
No oral evidence is admissible unless a specific pleading offraiid is made
in the plaint.' 0 Particulars have to be furnished of the Plea of fraud in
accordance with 0. 6. R. 2 and it is not permissible to introduce by way
of particulars a plea of fraud or misconduct other than that raised in the
pleadings.' I The same rule applies where fiaud is relied upon as a defence
in the written statement.'
The proper way of pleading fraud is to set out all the acts and
representations alleged lobe fraudulent in their full details and then to
state that those acts were done with a malafide intention olcommitting
fraud. It should be mentioned whether the representations were oral or in
writing. If oral, the substance of such representations should he given,
alleging the date and place when and where they were made, and the
name of the person making them, and that of the person to whom they
were made. If they were in writing, the document or documents containing
them should be clearly identified in the particulars." For instance, in a suit
for declaration of title to certain property entered in the record ot'ri g hts as
that of the plaintiff's guardian, the bare allegation that the entr y was brought
about by the guardian fraudulently was held not sufficient to raise a question
of fraud, and it , pointed out that it must be alleged who committed the
7 Annada v. And, 23 CWN 1045.54 IC 197,31 ('U 73; D. Weston v.
Das, 400898,23 IC 25, 18 CWN 185; Rajkuinarv. Gob/nd, 14 IC 53,17 CWN 524;
Lachnzi A'ara,a,, v. KLvhan K/shore, 38 A 126,14 ALJ 25, 33 1C9 13; Gliwnan v.
Kanliiya, 15 PWR 1915,26 IC 426.121 PLR 1915; Punjth ('oinn,rrcin/Svndicao,'
v. Punjab cooperative Bank, A 1926 Lahore 96, 6 I.ah
512,92 IC 327 (D13);
Lloyds Bank v. .1 E. Guzder, 56 C 868; Rattanasahapaih1' V. .ln,inakannam,naf.
57 MU 609; AIming H/nv. MA'S. chatrroi, 145 IC 118. A 1933 Ran g I 53; Mare
Nande v. Do! C/,tn,d, A 1948 Nag 170; (In/on of/mi/a V. itIoi//a/, A 1962 Pat 3i4.
8 Ganga Rain v. Tiludian,, 15 C 533 (PC).
9 Padmuzi Ails/un v. Rwnes/, Chandra Misl,ra, A 1991 Orissa 263: Dr Lakh,
PrasadAgarwal v. Nat/inial Dokania, A 1969 SC 583 referred to.
10 Raghunath Ti ware v. Ramakw,t Tiwaty, A 1991 Pat 145.
II Brijendra Nath Srjvasia,'a v, Mayank Sri vasfava. A 1994 SC 2562.
12 Sheik Nasiruddin v. AlunadHusain A 1926 PC 109.
13 Ga,iriShankar v. Manki, 21 ALJ 571,45 A 624.
 PARTICULARS 65
CHVtl

fraud, that what was done by the guardian was done with fraudulent
intention of defeating the plaintiff's rights, and that the Settlement Officer
was misled by her act and was induced thereby to make an incorrect
entry in the record.'
The plaintiff alleged that exparte decree was fraudulently obtained
by the defendant by practising fraud upon the court. This was not
considered sufficient and it was held that it is the duty of the plaintiff to
specify the particulars of fraud in the plaint.` So, when the defendant is
charged with making false entries in the account-books, the entries charged
to be false and the nature of the plaintiff's objection to each of them should
be specified."
Unless fraud is thus clearly and specifically alleged it cannot be put in
issue, 17 and it will not be considered enough that there are allegations in
the pleading from which such a plea can be spun out. ' But where the
transactions speak for themselves and furnish evidence ofa well thought
out design, the plaintiff's omission to set forth the particulars and details of
the conspiracy does not matter.' fit suit for pOSSeSSIOn of property
purchased at an auction sale the only fraud the defendant pleaded was
that there was collusion between the decree holder and the purchaser and
that they had agreed to purchase the property at a low price but the
Subordinate Judge framed an issue whether the purchaser had deliberately
misrepresented the amount ofa prior charge. The Bombay F-ugh Court
held that the Subordinate Judge was notjustified in raising this new case
of fraud for the dekndant. 7 ° An allegation of fraud should be made in the
pleading and cannot be allowed to be made at a later stage of the suit,'

14 Haic Kishna v. (]mesh, 2 Pat LT 528,62 IC 373, A 1921 Pat 209,6 PU 373 (FB).
15 Qua:i Ta!ifIquo Rahmnn v. Sital Prasad DOS, A 1977 Gauhan 25
16 Ncnj'ort Dcv Duck Co. v. Panter, (I886) 34 Ch D 88.
342; Narain
17 Khirode V. Janki, 20 IC 753; Manok Chand v. Girdhari. 46 Ic .
Sii:,,'!i v Sri Rain, 108 IC 383 Cal; lVanidev
1 Digainber v. Vijay Kumar Ran,
Chandra, A 1963 Born 244; Julian Dhari Rio v. Debt Rai, A 1965 Pat 279.
IS Sank,ujj v. NaIkppah, 29 IC 482 (Mad).
19 .Vanhoo Beg v. G,iIa,n Ilusairi, A 1950 Nag 50; Subbainma v. Afolid. Abdul
fiaji:, A 1950 1 lvd 55; Ramji Maitji v. Vaiji Ilwji, A 1950 Kutch 67; 5shun Deo
,Varain v. Seogeni Rat, A 1951 SC 280.
20 Dodasappa V. Pradhanappa, A 1926 Born 33,91 IC 426,22 Born LR 1318 (DB).
I Govi,ufasua'ni v. Ethi,ajarnmal. 34 IC 1, 1916 NI\VN ISO.
 66 PARTICULARS
[CH.VI

unless the party pleading it was not aware of the fraud, in which case he
can set it up when he becomes aware of it. 2 Where, however, Omission to
refer to fraud in the plaint was due to mere oversight, the court allowed
amendment of the plaint.'
The charges of fraud must be substantially proved as laid and when
one kind of fraud is charged, another kind of fraud cannot, upon failure of
its proof, be substituted for it,' nor is it proper for an Appellate Court to
entertain a case of fraud other than the one specifically alleged in the
pleading. 5 Mere suspicion is not enough.' For example, when a lady suing
for cancellation of sale deed executed by her, alleged that the defendants,
who were her agents, got the deed executed by her without making her
aware of the contents thereof; and that she did not get any independent
legal advice and did not get any consideration, but proved that she had
put her signature oil sheets ofpaper, subsequently filled up without
her knowledge and turned into a conveyance, it was held that she could
not succeed.
The general rule that fraud must be specifically pleaded would not,
ho ever, apply when the party aggrieved raises no objection and fights
out the case as though the pleadings were in proper fomi. Similarly, where
there is an allegation of fraud, a specific allegation of undue influence based
on the same facts is unnecessary.9
Undue Influence : This being a species of fraud should he pleaded
with precision and unless a case of undue influence is made out in the
pleadings, it cannot he investigated by courts.° This rule has been evolved
2 RadIa Ksha,, v. JYa]th.4/jKhan 3 01-.1501, 361C746, 190C334.
3 AIuniswanj v. R qja Gopala, A 1928 Mad 759,118 IC763,54MU 644.
4 .4bilu/ Hasan v, Turner, 11 B 620,14 IA III; Ganga Ran, v. Dwarka, 14 AWN 6;
Vage,dra v, Parhat,, 35 Ic 339, 20 CWN 819; Bans I Ram v. Secreia,-' ofState,
35 IC 284,20 CWN 638; SatLh (handra v. Kalidasi, 34 CU 529, 68 IC 577, 26
CWN 177,A I922 Cal 2O3(DB)-Mo/,1/ Bakshv.Raii'a/piiidi Ciuh A 1955 Lah222.
5 Mr. Mira v. Sariasi, 23 M 227.
6 L'nrnn of India v. Chaturh/,aj Patel, A 1976 SC 712.
7 Banj Ran, v. Sec,eta,3' ofState, 35 IC 284, 20 CWN 638.
S Ben, Madho v. Basanto Kunbi, 35 IC 252 All.
Nara3'an B/tat v. Akkerbaj, 33 IC 576,18 Born LR 27.
10 Jailer (hand y
Bidyadhar 60 IC 282, A 1921 Pat 45 (DB); Lad/i Prasadi,walv.
Karnal Distil/en, A 1963 SC 1279; Goon S/zankan v. Fakir Mo/ta,,, A 1989
CH vij PARTICULARS 67

with a view to narrow the issue and protect a party charged with improper
conduct from being taken by surprise. A plea of undue influence must, to
serve the dual purpose, be precise and all necessary particulars in support
of the plea must be embodied in the pleadings; if the particulars stated in
the pleadings are not sufficient and specific, the Court should, before
proceeding with the trial of the suit insist upon the particulars which give
adequate notice to the other side of the case intended to be set up)'
The essential ingredients covering the three different stages for a
plea of undue influence have to find place in the pleading. It must he
stated how the person alleged to have exercised undue influence was in a
position to dominate the will of, and exercise his influence over the party
pleading, and that in fact he did influence the latter,' 2 and thereby obtained
an undue advantage. All the necessary and material facts ofunduc influence
should be pleaded in support of the case set up.'-'
A general allegation, it was held, in the plaint that the plaintiff was a
simple old man of 90 who had reposed great confidence in the defendant,
was much too insufficient to amount to an averment ofundue influence of
which the 1-1igh Court would take notice. 4 It is not sufficient merely to
allege that the relations of the parties were such that one relied upon the
other and the other was in a position to dominate the will of the first. It
should furtherbe alleged that such other person used his position to obtain
ail advantage.` Mere averment that opposite party exercised undue
influence in the absence ofprccisc facts, namely the nature of such influence,
Orissa 201; Sied Sultan Pal v. Syed Bikhu Sahib, A 1986 AP 342; Andrnmal v.
Raj&'.cwarz ledachalarn, A 1985 Mad 321 (DB); Kallanchil Padunhakkara
.1 bdu/ Rah man v. Kunhi Muhammad, A 1975 Ker 150; Chfrongi Lai v. Shanker
La!, 1979MPU 591.
11 Lad/i I'arshadJiwal v. Karnal Distillery Co. Ltd, A 1963 SC 1279; Subl,as
Chandra Das v. Ganga Prasad, A 1967 SC 878.
12 Pi'mnara%'an V. Kunwarji, A 1993 MP 162; relied on S,bhash Chandra v.
Gan ga Prasad, A 1967 SC 878; Shidduhai v. Nilupagauda, 83 IC 616 (Born);
Kun!,amina(jmma v. Special Tehsildar, A 1977 Ker 41.
13 K. Kanakarathnam v. A. Perumal, A 1994 Mad 247.
14 ttlsar Sheik/iv. Soleman Bibi, A 1976 sc 163.
15 Gouri Sirankar v. Fakir Mohan, A 1989 Orissa 201; Poosathura4 v. Kamriappa,
55 ic 447,43 M 546,18 AU 343,22 BomLR 538 (PC); Sanwal Dass v. Kuremal,
10 Lah Li 27, A 1928 Lah 224,9 Lah470,109 1C779(DB).
 68 PARTICULARS (CH.Vi

the persons on whom it was exercised and the time and place of it, the
pleadings fall short ofthe requirements in law.' 6 In a case for setting aside
a deed of gift on the ground of fraudulent representation, where the plaintiff
in order to show that defendant could commit the fraud, alleged how he
was in a position to exercise undue influence over the plaintiff, it was held
by the Privy Council that no substantial case of undue influence was raised
and the allegations in the plaint were only ancillary to the main charge of
fraudulent misrepresentation. ? Detailed facts on which the p1 ainti if relies
should be given and it is not sufficient merely to raise an atmosphere of
suspicion.
The plea of undue influence should be clearly staled in sufficient
detail. The allegation that P lived with D who was managing his affairs is
not sufficient to infer that D was in a position to dominate the will of P. '
The Supreme Court has held that the courts must scrutinise the pleading
to find out that a plea has been made out and full particulars given before
examining any case of undue I'llfluence. 2 As in the case of fraud, so in the
case of undue influence, a party must he strictly confined to the statement
of facts alleged by hiiii as particulars and cannot make out another kind of
undue influence.'
Coercion : Coercion is defined under section 15 of the Indian
Contract Act as committing or threatening to commit any act forbidden by
the Indian Penal Code or the unlawful detaining or threatening to detain
any property to the prejudice of any person whatever, with the intention of
causing any person to enter into an agreement. In order to find a person
guilty of committing coercion, full particulars must be fumi s1icdwhen a
Court is asked to find that a person was threatened with death, it is
necessary to give particulars as to the nature of the threat, the
circumstances, the date, time and place in which it was administered and
the name of the person threatening. 2 A mere suspicion or probability will
16 Lahi Kzs/,ore Cliaturvedj V. Jagdish Prasad Thada, A 1990 SC 173 1.
17 Some.rhwerv. Tjrhhtniwi,A 1934 PC 130.149 1C480.
18 Clio ntha'athiv. Jaw i 40 PLR 146, A 1938 Lah 333.
19 Talen gala Narayana Bhatia v. Narasi,nha, A 1965 Ker 189.
SuhliasChanderv. GavrayaPd.,A 1961 SC 878.
I Suraj Ba/csh v. Ajudhia Singh, A 1928 Oudh 330, 110 IC 91 (DB).
2 Bi.shundeo Narain v. Seogeni Rai, A 1951 SC 280.
cii vij PARTICULARS 69

not he sufficient to prove coercion as held by Privy Council.' The word

-coercion - used in the general and ordinary sense is not controlled by the
definition of the word in section 15 of the Indian Contract Act.'
Collusion Collusion is a deceitful agreement or contract between
two or more persons to do some act in order to prejudice a third person
or for some improper purpose. It is undoubtedly a secret arrangement for
which it is indeed di fficult to get direct evidence. The charge of collusion,
though easy to make, is difficult to substantiate. However, a general
allegation ofC011LlSiOfl impl y ing some kind of fi'aud is not enough without
particulars.
Misrepresentation : In a suit for false and fraudulent
misrepresentation, the plaint should state whether the alleged
misrepresentation was oral or in writing, and when and where each of
them was made. If in writing the relevant documents must be identified
and disclosed. If oral, the substance of each and every part of the
representation should he given stating as regards each one, the date, when
and the place where and the PCISOTI by whom the said representation was
made.
Mistake : A mutual mistake such as would render a contract void
within the meaning of section 20 of the Indian Contract Act, depends
upon the facts and particulars pleaded and proved and where the plea is
not made out it cannot be allowed.' Clear evidence of mistake, common
to both the parties, must he alleged and proved.
Negligence In an action for negligence, the plaintiff must give full
particulars of the negligence complained ofand of the damages he has
sustained. Without a pleading and proof, negligence cannot be

3 :tfotdal L.parliva v. Jaggurnath, 1836- 5 WRPO 25.

4 Aanlivaal v. National Bank of India, ILR 40 Cal 598 (PC). 40 IA 56.
5 1 itia S'anskrtt I 'ishiiavidialiii a . Di. Rajki,Iioic Tnpothi, A 1977 SC 615,
6 Gonri.ankar v. Monkey Kaniwar, hR 45 All 624; Padma v Kripasindhu,
A 1986 Orissa 97.
7 Jjhj p, 0, j Singh v. Samuel Henri Seddon, A 1940 Pat 516.
8 Thkarv. Bennett, 1887-38ChD 109.
9 Fouler v. Lanning, 1959 (2) WLR 24; Prafulla Ranjan Sarkar v Hindustan
Budding Society Ltd., A 1960 Cal 214.
 70 PARTICULARS
ICHV1

countenanced and the decree for damages cannot be awarded.'° The

plaint must clearly allege the duty enjoined on the defendant with the breach
of which he is charged." In a case of collision, the plaintiff must state
when and where the accident took place and the particular act ofnegligence
and give details of the loss and expenses incurred . 2 In cases in which
negligence is pleaded, fill details must be given ofthe acts which constitute
negligence "or from which negligence maybe presumed on the application
of the doctrine of res ipsa loquiIor.' The maxim res zpsi loquilor
is a
principle which aids the court in deciding as to the stage at which the onus
shills from one side to the other. 11 Where negligence arises out of breach
of contract or duty, it is necessary to state the nature of contract broken,
the circumstances in which the performance of the contract by one party
or the other was expected, the degree of care and attention which, in the
ordinary course, was expected to be shown by the parties, the
circumstances tinder which and the reasons for which the failure to show
due diligence occurred, are all material particulars which would be relevant
before ajudicial finding could be given on the plea ofnegligcnce] 6 It is
not open to the plaintiff to allege and seek to prove one kind ofnegligence
and then ask the court of appeal to find negligence of another kind.'7
Again in cases where a statutory notice such as one under section 80 of
the Code of Civil Procedure is mandatory in order to sustain a cause of
action for liability on the Railway administration, it is necessary to give in
the statutory notice itself all the necessary particulars before a charge of
negligence can be effectively maintained and thus enable the defendants to
decide whether the claim should be accepted or not. 18
10 Ba/ak Glass Emporium v. Union of India, A 1993 Ker ' 342; Sec also Trojen v.
Nagappan ('/,etu,a,-, A 1953 SC235; GovindPracjc/v. Bail Dut' Sastri A 1977 SC
15.
II Gauirezv Egerton, 1867 (2)CP371.
2 J'atso,, v, No,!!, Metropolitan Trainitays Co., 1886-3 &.R 273; Marti,, v. Teggar,
1906(2)Ir.R. 120.
13 Gannet v. Egerton, 1867(2) CP 371.
14 Pus Jipabai Parshoa,n Udeshi v. Ranjeeth Ginning and Pressing Company, A
1977 SC 1735; ff/1sthi Kim Sahib v. Mysore SRTC'orporation, A 1991 SC 487;
Jag/iir Kaun V. State of Punjab, (1995)2 Punj LR 343 P&H.
IS SayedAkbar v. State ofKarnuaka, 1980 ACH 38 (SC).
16 New Marine company Pvt. Ltd v. Union ofIndia, A 1964 sc 152.
17 RavmondL,,,co/n v.4/ice Paupinal, A 1932 PC 95.
18 So/i, Vanaspati Traders v. Union of India. A 1966 All 333.
 CII VII PARTICU!.\RS
71

Medical Negligence: Medical negligence is a tortious act which is

actionable and aggrieved party can avail the alternative remedy under
Consumer Protection Act 1986 9 The medical opinion may differ with
regard to the course of action to be taken by a doctor treating a patient
but as long as the doctor acts in a manner which is acceptable to the
in profession and the court finds that he has attended on the patient
ith due care, skill and diligence and I fthe patient st i ll does not sunive or
suffers a permanent ailment, it would be di fliculi to hold the doctor guilty
ofnegligence. 20 A towel was left inside a woman's peritonial cavity while
she was operated for sterilisation in a Government Hospital causing
perito
nitis which resulted in her death and the conclusion of negligence
was drawn against the doctors by applying the principle ofres ipsa loquilor
and the Government was held vicariousiy liable.
Breach of Trust: In case ofbi-each olinist, facts show
i ng how the
opposite party came to hold the position ofirust, what were the terms of
that trust, what acts he did which amounted to breach of trust ,
must be
pleaded. In
all for breach of trust, the acts complained ofare to be
parlicularised to a point at which the defendant knows not merely generally
but in detail what lie has to meet. 2
It is not sufficient to allege that the
defendant had in various wa y
s misapplied the rents and profits of leasehold
W hich he had received on hchal fof the plainti IT has conunitted breach
oftrust. 3 Asa matter o
fprocedure, acts of breach of trust, both positive
and negativc( ilfiil deItult) must he pleaded at the outset unless the plaintiff
is dep]vcd ofaccess ofthe accounts of the Trust. lfthe trustee refuses to
sho the accounts, a beneficiary has a right to sue for all and he
allo ed to formulate his charges after inspection ofliis accounts: otherwise,
lie must set out the charges at the outset or at any rate before the issues
are framed.'
Miscellaneous Acts Of -Mi
sconduct or Improper Conduct: The
word 'misconduct' literally means wrongful conduct or improper conduct.

Dr. Lav,ncjn v. Dr. Tri,nhak, A 1969 Sc 128; AS. .iitral v. State, A 1989 SC 1570;
Poonain Verma v. IlShl' ill Pate!, A 1996 Sc 2111
Ac/mt Rao .1farj/JI(ju KIro(JwQ V. State of .tiahara.r/ra A 1996 sc 2377.
2 Rathnasa/apa,/1i V. A,nma Kanna,n,na/ ILR
1930 Mad 783.
3 In reAustich, 33 \Vi. p, 557.
4 Shirimbai Dns/irnt v. iVavroji Pestonjr, A 1936
Born 30.
5 NM. Ros han KwnarKa,rjn V. 5f SM Rathtav,
[LR 59 Mad 789, A 1936 Mad 508.
72 PARTICULARS Ku VI

Misconduct is something more than mere negligence and intentional doing

of something which the doer knows to be wrong or which he does
recklessly not caring what the result may be.' A mere clerical error would
not possibly amount to misconduct which implies some degree of
rneis rca on the part of the person concerned or at any rate at a very
grave degree of negligence or serious failure to carryout instructions or
comply with regulations.' If an Advocate is guilty of conduct which is not
becoming on the part of the Advocate, he is, to that extent, guilty of
professional misconduct. When an Advocate spoke across the table to
another Advocate when arguments were going on and that too about the
Magistrate himself, it is not consonant with the high tradition of professional
conduct.
Misconduct ill office may he defined as unlawful behaviour or neglect
by a public officer by which the rights of a party have been affected.
Gross or habitual negligence in the performance olduty may not involve
nw,zs rca but may still constitute misconduct for disciplinary proceeding.
Misconduct of promoters or directors as understood in the Companies
Act means not misconduct of every kind but such as produces pecuniary
loss to the company by misapplication of its assets or other acts.'° In
pleadings, a general allegation of misconduct is not sufficient. Where the
delendantjustifiedhis action in dismissing the plaintiff from service on the
ground olmisconduct, specific acts ofmisconduct should be averred and
proved. t1 However, where specific evidence on the point in dispute is
exclusively in the hands of one party, it is not reasonable to insist upon the
other party giving definite particulars of misconduct which an examination
of that evidence alone would disclose.` Where an improper conduct is
alleged, it must be set out with full particuLars. A p Lai nti ticannot however
complain, if general allegations of improper conduct made by him in the
6 Dominion ofmdict v, Ado Shah ,4khar Shah, A 1957 Pat 219; SIutnath Rat Ram
v. Amirt Banaspathy Co., A 1965 SC 1666.
7 Gordhandas v. Governor General in Council, A 1957 Punj 196.
8 Subba Reddy v. Ramappa, A 1954 Mad 318.
9 Union of India v Ahamed, A 1979 sc 1022.
10 Barium Chemicals Ltd. v. company Law Board, A 1967 sc 295.
11 Saunders & Jones, 1877-7 Ch. Div. 435
12 Pervala Ramakrishnaiah v. Pandri Satyananondan, A 1932 Mad 284.
 CII VI) PARTICULARS
73

plaint are answered by equally general allegations in the written statements.

The following are instances of some other cases in which it is
necessary to give particulars:
I. Suit fo,- ACCOUntS Particulars should be given as to how the
defendant is an accounting party, e.g., that he is a mortgagee in possession
oran agent or managing co-sharer, his not sufficient to say merely that tile
defendant is an accounting party. It should also bz , alleged how the particular
position of the defendant as ail party arose, e. g ., if he is an
agent, when and how he was appointed agent, whether verbally or by a
ritten agreement; if he is a mortgagee, the date of the mortgage-deed
should be specified.
Ii. Adoption : It is not sufficient to say that A is the adopted son of
B, but the party setting up an adoption should give particulars as to the
person who adopted, to whom the adoption wa_c made, the person adopted
and his relationship with the adopter and the person who gave ill adoption.
It is not necessary to plead that all ceremonies necessary and essential
were performed. il In the absence olconsent of ti l e living wife, adoption
cannot be said lobe a valid adoption.' 5 if there is a written statement
containing bare denial of adoption, it will be taken to imply a denial onl y of
the fact of adoption and not its legal validity. 11, Where the validity of
adoption is challenged, the grounds of such invalidity must be pleaded.'
Ill. Adverse Possession .- It is not Sufficient to plead that a party has
been in adverse possession for over 12 years. It should be definitely alleged
how and when adverse possession commenced What was the nature ofhis
possession and whether the fact ofhis adverse possession was known to the
real owner. As between co-o\ners or co-sharers: there must be a plea and
evidence ofopen assertion of hostile title coupled with exclusive possession
and enjoyment by one of them to the knowledge of the other. Once possession
of a co-owner or a co-sharer has become adverse as a result of ouster, a
13 L'nron of/nd/a v. Pandwang Kas/j/naj/i More, A 1962 SC 630.
14 Siral Pra.sad v. Ram Prasad, A 1943 Nag 321.
15 AaShlbfl v. Pwivuu Bal, (1995)6 SCC 213, 1995(3) ccc 565 (Sc).
16 ,iiaroiz Bans/%- Radhabaj A 1945 Nag 60.
17 AIadhavrao v. Nerraoj A 1957 M..B. 179.
18 RM. Dawar v. Ganga Saran Sharma, A 1993 Delhi 19; Rosily
Mai/,ew v.
Joseph, A 1987 Ker42.
74 PARTICULARS [CH VI

mere assertion ofjoint title by dispossession ofco-owner or a co-sharer would

not interrupt running of adverse possession. He must actively and effectively
break up the exclusive possession ofhis co-sharers or co-owners by re-entry
upon the property or by resuming possession in such a way as it is possible to
do.' Possession of one co-owner is not by itself adverse to the other co-
owner. On the contrary, possession by one co-owner is presumed to be a
possession of all the co-owners unless it is established that apossession of die
co-owner is in denial of the title of the other co-owners and by excluding
them. Ouster is an unequivocal act olassertion of title. There has to be open
denial oftitle to the parties who are entitled to it. Aderse possession has to
be expressly pleaded and proved. It cannot beset out simply in the course of
trial and cannot rest oil sumlises) Where the party's claim is based on
section 53-A of tile Transfer of Property Act, it is evident that he admits by
implication that his possession is lawful under the agreement and the plea of
adverse possession would not he available to him.' No amount of proof call
substitute pleadings which are the foundation ofthc claim ofadvcrse possession
of litigating party) Adverse possession must be pleaded, put in issue and
evidence should be let in. opportunity to reftite the case must he made out by
the party and availed by the other party. It cannot be allowed to be flung as a
siirpise on an unsuspecting party for the first time in appeal.'
IV. Agreement: Dates and names of parties to, and consideration
of, the agreement, and whether it was in writing or oral, should be
mentioned. In case it was in writing, the document should be properly
identified. lithe agreement is implied, the conduct, acts, conversation, or
letters from which it is to he inferred should he indicated with sufficient
accuracy, though it is not necessary to set them out III In a suit for
breach of an agreement the exact condition broken and the manner of
breach should be clearly specified.'
V. Antecedent debt: Where a transfer of coparcenary property by
19 Sha,n/,u PrisaiI Sing/i v . tLst. Tooni Kuina,, A 1971 SC 1337.
20 Sied S/ia/i Gulcun %Ia/,amed V . .SyedAhtnt'dMoideen, ( 1971) 1 SC(' 597.
I Kunnega Kone V. Uduyar Kane, (1979)1 MU 419.
2 Mohan La! v. Mira Abdu! GaJJur, A 1996 SC 910.
3 A buhaker A hdul Inwndar v. A hdul Inatndar, A 1996 SC 112.
4 RatnaswuFnyMudaliarv. Rasu, 2000 (2) LW 540.
5 0.6,R.12.
6 Jarnshedv. Kunji La!, 1938 NLJ 392, A 1938 Nag 530.
 C1t.VF] PARTICULARS
75

a Hindu father is sought to bejustified on the ground that it was made in

lieu of antecedent debt, it is not sufficient merely to say so, but full particulars
of the antecedent debt must be given, viz., the amount and nature of the
debt, the name of the creditors, the date on which the debt was taken and
how it was secured.
VI. Rcna,nj; Facts showing how the party pleading or the opposite
party came to be benainidar should be pleaded, e.g., who supplied the
consideration and obtained possession, the relationship between them or
other motive, if any, for giving the transaction abenamj
character, the
conduct of the parties in dealing with the property after the sale with whom
the custody of title deeds remained.
I3enami Transactions (Prohibition) Act 1988 (Act 45 of 1988) is a
piece ofprohibitot y legislation and it prohibits transactions subject to certain
exceptions, makes transactions punishable. The Act is not retrospect ive.8
The prohibition does not apply to purchase of property by a person in the
name of Ills wife or unmarried daughter. 9 The provisions of the Act are
not applicable to a decree passed legally and validly prior to the coming
into force ofthe Act)
Where an agent employed to purchase property for the benefit of
the principal, purchases the property in his own name, the property so
purchased is for the benefit of the Principal and the suit by the principal for
declaration of his title and possession of property is not barred by
section 4 of the Act. '1
7 On la relating to bcnami, see ControlleroJE.D v. Aloke i%tura. (1981)2 SCC 121
(paras 4 and 5); Kankai-aihanam,na/ v. Loganazira, A 1965 SC 271; Javadayaj
V.
Bibi Ha:ra, A 1974 SC 171; Krichnanand v. M.P., A 1977 SC 796; Gapadibai v.
Stare ofM. P., (1980)2 SCC 327 (para 3): Gidant Mo/id. v, Mst. Mar/tam, 1984
LW 321; Raj Ba/la y Das v. Ilaripada, A 1985 Raj
Cal 2; P. Narainna Meno pi v.
Bhagc'erutln A 1985 Ker 14 (No
presumption of advancement in favour of wife
resulting trust under section 82, Trust Act, created);
Unnila Dasi v.Pmbodh,
(1985) 89 CWN 465.
S Rajagopal Reddi v. Pathuini C/randrasek/,aran 1995 (2) SCC 630 (Mirhi/esli
Kumari v. Piem Bshari Khare, A 1989 SC 1247 overruled); Probod/i Chandra
Ghos/i v. Urinila Dassi, A 2000 SC 2534,2000(6) SCC 526.
9 Mind Kzs/lorev5u.shila A 1995 SC2 145.
10 f/arid/jan Banejee v. B/zadrawati Goswami, (1995)3
GLR 212.
11 P. I". Sankara Kurup v. Lelavath y
, A 1994 SC 2694; C Gangacharan v C
Naravanan, A 2000 SC 589.2000(1) SCC 459.
 PARTICULARS [CHVI
76

VII. Breach of Contract: The exact manner in which the contract

was broken must be stated in the words of the contract itself. If only one
of the conditions is broken, the condition should be speci lied. Material
.12
facts about terms and conditions of contract must be alleged and proved
Vu!. Breach ofDuty: The facts on which the duty is founded, that
is, if it is founded on a contract the particulars of that contract, and if it is
founded on statute a reference to that statute should be stated, as also the
facts, which bring the case within the statute. Where the statutory provision
is a part of a long Act of Legislature it is not sufficient to give the name of
Act. The particular section or clause thereof should be stated. The manner
in which the breach took place or the facts constituting the breach should
also be alleged.
IX. Custom : Full particulars of the custom must be stated showing
its incidents and details, particularly when it is at variance with the general
law. 3 It should also be alleged that the custom is reasonable, certain and
'

immemorial and has been followed without interruption.' 4 Where a

defendant pleaded that adoption oforphan is valid under H ndu law but
t

did not sped tically plead a custom in modification, hut as soon as plainti Ii's
first witness was examined, he was asked questions in cross examination
about the custom, it was held that the parties knew what defendant's case
was and his bad pleading should not prejudice the defendant.
X. Cruelty : Particulars of the acts alleged to amount to cruelty
should be given, with reference to date, time and place. In matrimonial
cases specific allegations in detail should be pleaded to make out a case
of cruelty. Cruelty should be such as to cause a reasonable apprehension
in the mind o Iwife that it will be harmful or injurious for her to live with the
husband.' 6 Pleading of cruelty should contain substantial matters of
complaint and give the time and place of their occurrence. It is not enough
to plead trivial incidents that arejust the ordinary wear and tear of married

12 M. P. Laghu (Idliog tvIaryadit v. Gwalior Steel Sales, A 1992 MP 215.

All 583.
13 S?talPrasc,dv. Ranjit Singh, 1931 ALJ 390, A 1931
14 Parbhawati Devi v. Mahendra t'/arain Sing!?, A 1981 Pat 133.

15 Pannalal v. Chimman Prakash, A 1947 Lah 547.

16 Parvativ.ShivRain, A 1989 HP 29; OmPrakashv.Sint. Rajni,A 1988 Delhi
107; Kusun Lala v. Kampia Prasad, A 1965 Alt 280; Tushar Kana v. Bhowani
Prasad, (1969)73 CWN 143.
 Cavil PARTICULARS
77

life or to make general allegations of cruelty or nagging.''

XI. Desertion In its essence, desertion meant the intentional,
permanent, forsaking and abandonment of one's spouse by the other
without that other's consent and without reasonable cause. It is a total
repudiation ofthe obligation ofmanage. ' Desertion is a matlerofinfererice
to be drawn from the facts and circumstances of each case which have to
be Set out in detail.' To prove desertion, two essential conditions must
he satisfied, viz., 1) the fact of separation (f
ia ciwn desee#zth); and 2)the
intention to bring cohabitation pennanently to an end, (aninius dese/eizdi).
The burden is heavily upon the part y who alleges desertion.2
XII. Easement: It is not sufficient to allege the right of casement
generally but the nature oft lie particular easement and how it arose should
he specified, as also the manner in which the right is claimed to have been
acquired, e.g.. by grant (actual or lost), or prescription, or under a statute.'
if it xas an easement acquired by prescription, it must be specifically
alleg ed that the right was exercised for at least 20 years ending within two
y ears of the suit, without interruption and as oJ'uight.
lithe easement is
claimed against government, user for 30 years should be proved. As against
a transferee of the go v emnlent, claimant can base his claim upon user for
a total period 01 ' 30 years against government and the transferee, or can
Ignore the prescription against govemnient and base the claim on 20 year's
user against the transferee. Where, the plainti IT had alleged the circumstance
Of the user b y himsel land his ancestors of land as pathway for 40 or 50
y ears, the plaint was taken to cover the plea of lon g
user leading to an
inference of lost grant. 2 It is ver important that the right was enjo
y ed as
o i ii/z i, and as an easement, because user as owner vi II not support a
claim to easement .3 In case of private right of way the course and the
17 Thrmo on v. Thomson. (1957)1 All ER 161.
IS /_(1LSI1I?ia)i a,iic/iand Kripa/wü v ..tI'cera, A 1964 SC 40: Sau<:t/z Kumar
.4garua/ v Ar, p u/jnf .1gar-n'al, A 1990 SC 594.
19 Bipin Chan/ a v. f"ab/?alaIj A 1957 Sr'176.
20 Luksl,n(in LitmnChan d Kripa/an v. .tlee,a, A 1964 SC 40.
tfan p ua/ v. RaAha/. A 1933 cal 215, 142 IC
458; Aumia Ma! v. Ma/ia Dev,
A 1962 Punj 299
2 ,tlanmarh v. RaAiiai,A 1933 Cal 215, 142 IC 458.
3 La/it A/e v. Ram Prasad, A 1943 All 362, not
followed in Mahesh Paratap
v. Rampal, A 1953 Al] 591.
78 PAR tICULARS [CFI Vi

termination of the alleged way should be shown with reasonable precision'

and also whether the right claimed is for walking or for cattle or for carts
and vehicles, or for funeral or marriage processions, etc. In pleading a
public right of wa y , however, ternini need not be set out. In pleading an
easement on the basis oflost grant, the essential fact to aver is user or
enjoyment for a sufficient length of time which might give rise to the
presumption of such grant!' In case of easement of light, the purpose for
which the dominant heritage has been used should be stated. If an extinction
of the ri g ht of easement is pleaded, the way in which it was extinguished
Should be particularised.
XIII.Im,noraliti : In a suit by a Hindu son for setting aside an alienation
by his father, it is not sufficient simply to state that the debt was contracted
for immoral or illegal purposes, but full particulars of those purposes should
he given. i.e.. it should be stated clearly how the debt was connected with
the imnioral pursuits ofthe borrower. It will not he sufliciejit merel y to
explain the nature of the illegality bLit it should he alleged 'lien and to
whom the money was paid, and in what way it was applied to the illegal
purpose. For instance it is not sufficient to say that the debt was taken to
anibliiig losses. Particulars ofthe gamhlingorwageringtransactioiis
payoff-
on which the losses were incurred should also be given.
XIV. Justification: Where a wrongful act is claimed to he j usti fled,
particulars should be given, e.g., that the act was done with peniiissiOn or
in self-defence or was due to pure accident, or was done under orders of
third person (iii which case the name of that person should he disclosed
and it should be shown that he had authority to give such order)!' Where
in a suit for libel, truth is pleaded as ajustification and the libel consists of
one specific charge, no further particulars are needed, except the
particularsot'the specific charge itselt'. e.g., ilthe charge is that A had illicit
intercourse with B. the time and place, when and where he had the
f/'i. .i,nA:m. I SS2> 22 Ch D48 1: RwnnuuuIir . ,t/t1ij//a PrcouI, 57 IC 1St Pat.
5 Ganga SaJw, N. Khach p ii Swgh, 1964 AU 617.
6 ..Wa1,efrI(frwlath v. Surapnl, 45 CWN 17.
7 Tuslzirwn v. Bishnath, 105 IC 885.25 ALI 753:Jagthsh Narain v. Hazardal, 140
IC 535, 32 AU 309; Bal Rajaram v, Maneklal, 1947 AU 752; Shaukat Ali v.
State, 1956 AU 460.
9 Thorne v. Tilbuy,(1858) 3 H&N 534; Henderson v. Williams, 1 QB 521.
 PARTICULARS 79
CII VII

intercourse must be stated. But where the charge is a general one, e.g.,
that the plaintiff is swindler, the defendant must give specific instances of
conduct Justifying such a description, with sufficient particularity to give
notice to the plaintiff what the defendant means to prove to substantiate
the truth of the alleged charge.' Where the defence was that the words
complained of were fair comment upon facts which were matters olpublic
interest, and that they were published on a privileged occasion, the defendant
was ordered to give particulars of facts said to be matters of public interest,
and of the circumstance of the occasion alleged to be privileged.'0
XV. Legal necessity: Where a Hindu father's transfer is sought to
bej usti lied by legal necessity full particulars of the actual necessity with
such further facts as go to make that necessity a legal necessity, should be
stated.
XVI. Representation: Particulars should be given whether the
representation was oral or in writing and when and where it was made. If
in writing, the writing should be specified.
XVII. Special Damages: It is not sufficient to allege the amount of
damages suffered, but full details ofthe damages sustained should be given.
For instance it is not sufficient to claim Rs. 500 as "cost of defence" in a
suit for malicious prosecution, but details of the expenses incurred in
defence should be given. In case of breach of contract when plaintiff has
suffered damages greater than those which ordinarily and usually arise
from such breach, he must, ifhe wishes to recover the extraordinary damages,
prove that at the time of making of the contact, he communicated the special
circumstances to the other party and the latter entered into the contract
with the knowledge ofthespecial losswhichwould accrue to the plaintiff on a
breach of that contract. Unless such notice is given, the damages are
spoken of as too remote in law. An illustration of special damage of this
character is the case of man wanting repair to machinery in sugar mill. It
ma y he that, if the repairer exceeds the stipulated time, the owner of the
mill might suffer agreat loss by losing part of whole of the season's profits,
but unless he has told the repairer exactly what the circumstances are and
9 Gordon Summing v. Green; 7 TLR 408.
10 Subhasv.R. Knight, 101 10565,54C73,A 19927 Cal 297.
Ii See notes under precedent (of plaints) No. 161 Part 11.
80 PAR1ICI:i.ARS iivi

the special loss which would accrue to him, lie cannot recover that special
loss. The fact that this notice was given and that the contractor undertook
the work on the condition of being liable for special damages must, of
course, be specifically pleaded.' Iii motor accident cases general damages
are presumed by the court, but special damages are to be spec i fied.'
XVIII. Title to Propel-ti . : In cases when a party alleges himselfto
be the ovnerofland. lie need not give an y particulars of his title if he is in
possession, but may simply allege his title, unless he admits the legal title of
the other party and relics only on some equitable title in himself For instance.
a defendant in possession need not plead his own title but may plead that
he is a fo,za fi(/e transferee for value from an ostensible owner and may
g ive particulars of that plea onl y . When a party is not in possession, lie
must LflVC lull particulars olthe title lie pleads, e.g., if he pleads title as heir,
he must allege hot; he is the heir, if lie pleads title b y assignment he must
show b y \ hat steps the estate became assigned to him. I ía title, short of
absolute proprictorsliip, is pleaded, e.g., as mortgagee, lessee, etc .full
particulars olthe mortgage, lease, etc., should be given. e.g.. who granted
the mortgage or lease, when, and for how lon g . The nature olthe deeds
and documents on Milch a party relies in deducing his title froiii the person
under whom he claims, should be fully given. I ititle by adverse possession
is pleaded, it should be clearly so alleged." It has, however, been held in
the undernoted case that if in the course ofpleadings the plainli llclearlv
claimed title b y adverse possession in the alternative, the fact that lie did
not allege this specifically in plaint is immaterial. 14

If both the parties are admittedly nijoint possession, e.g., ill if Still
for partition ofproperiy, or for declaration of shares in a joi iii occupancy
holding belonging to both the parties. particulars ofthe title to the share
claimed should he given.
In cases however, where the opposite pal-t\' is estopped from

12 R:ispahaz Par./zo,tan, Lde3/li v. Rani . 'et (7tnnt#ig & I'ros.\l'n,' C ' Ltd. .,% 19-/7
SC 1735. (1977)2 SCC 745.
13 •Slinmuain Gwi'Ii,u,i, v. Premda , 140 IC 694: KarhnzillaJi Khan v. Bhiampii tap
Sing/i. A 1949 Nag 65.
14 ilunicipa! Board, Luck,ww V. Mt. Kallo, A 1949 Oudh 32.
15 Moo La! v. Jud:st:', 31IC 181, 20 CWN 310.
 PARTICULARS 81
CI-1.1111

denying a title, e.g., by Sec. 1 16 of the Evidence Act, such title need not
be pleaded. In a case for rent against a lessee, the lessor need not sho
his title. It is sufficient for him to plead that he let the property to the
defendant at a certain rent, and that the defendant entered into possession
under the lease. But if the suit is brought by the lessor's heirs, the title of
the lessor must be alleged to show that it was capable of passing by
inheritance to the plaintiff. The lessor may himself have been a tenant for
life and the defendant would not be estopped from saying that his lessor's
title has been determined by death.
XIX. Title ofanotlierperson : Similar particulars should be given
when title is alleged in a third person. e.g., hen a licensee of a third
person claims right of possession as licensee, the title of his licensor should
he pleaded with particularit y . The reason is that a party, ma\ be presumed
to be ignorant of his adversary's title. But when title is pleaded in the
opposite party with the object o imakiiig him liable, it iS OUt necessai to
allege title more precisely than is necessary to show his liability. For
instaliLe. in a suit for rent against the assignee of the lessee after se eral
mesne assignments, it is sufficient to plead only that "all the nghts and
liabilities ofthe lessee ha e, by assignment. come to be vested in the
defendant.'' So, in a suit for debt against the heir of the original debtor,
particulars of the heirship of the defendant need not he pleaded v. ith the
same precision as would be necessary i fthe plaintiff claimed as heir ofthe
original creditor.
(U Juit particuiws are required ill of/icr kim/s of suits it ill he indicated
in t/ie/otnotes to the precedents ofsoc/I suit in Part II of this hook. post)
Jistakcs in Particulars : lfthe particulars are wrong, they cart he
correcteU 'Dy . ! application for permission to amend them, and ifthey are
not corrected and the iitistak. likely to mislead the other party, the p
giving the particulars must sui'ier te La!seq1ience. But ifthe eior or
mistake does not mislead the defendant and the rticulars gi \ en are
sufficient to make the defendant understand what the plaintiiimmns. the
error is ofno consequence. For instance, in a suit on a pronote. the date
and parties of which are correctly described but the amount of loan and
the rate of interest are wrongly given but there were circumstances
showing that the defendant had no difficulty in identifying the pr000te. the
 S-) PARTICULARS vi

defect was held not to be fatal.''

Form of Particulars Particulars should always be given in the
pleadings themselves.' 7 When the y arc very short and can conveniently
be stated alongwith the fact to which they relate, they should he so stated.
hut they should not be mixed up with the allegations of facts. Where they
are long, they may be given in a separate paragraph following that in which
the main fact is stated.
When, however, the particulars to be given are very long, e.g..
account in a suit for money, or long specification of tile property claimed
Ill suit. it is more convenient to separate them from the text and to enter
them at the foot of the pleading, shortly referring to theni in the body of the
pleadiiu in some such way as
"The defendant has borrowed mone y from the plaintifl from time to
time, and has also made sonic payments oii account, full Particulars of
which arc ,.n°en at the foot ofthe plaint," or
"As per account gi en at the foot of the plaint, the defendant o es
the plaintiff the sum OCRs. 500 as balance", o,
"The plairmils father was owner of several items of land and house
property details ofwliich arc given in schedules A, B and C at the foot of
the plaint."
When the particulars are too voluminous to he included in the plaint
they may be annexed thereto or delivered separatel y and the foct stated in
the plaint. s
Mien particulars are ordered under 0.6, R.5 they ma y he delivered
in the following tonn:
Particulars delivered in pursuance of the ordcu of court dated
passed on the application of the defendant
1. The following are the particulars of the fraud alleged by the plainti 11
in para 4 of his plaint
(Slate the particulars in paragraphs)

16 A'a,na Girl v. MtJn,, Ill IC 887, A 1928 Mad 94() (DB).

17 0.6, RA
18 Ran, Prasad v. Ha:arjma/J 58 C418,134 IC 538,
A 1931 Cal 458.
 VI PAR iICLI.\RS 83

2. The following are particulars of the damages claimed b y the plainti If

(State the particulars in paragraphs)
3. The following are the particulars of (here state the matters in
/ cspc'Ct of r thich particulars ha e been ordered) delivered pursuant to
the order of the --- —of
(here set out tire particulars ordered in paragraphs fnecessarv.)
an
If particulars are delivered in pursuance of order of the court they
need not he stated in the form of an application, so that no court-fee
stamp \ ill be required.
I [an particular form is prescribed by an y High Court, particulars
should he dcli vered in that form. The Madras I ugh Court in the original
side has prescribed that the particulars should be drawn LIP in the form
prescribed for the written statement of defendant and shall be endorsed
', ith a reercncc to the order directing the same.
Pleading to Particulars : Particulars are part oithe pleading when
contained in it and must be deemed to be so even ifseparatel delivered.
Ihe opposite party should, therefore, plead to particulars and here par-
ticulars are delivered atler the pleading olihe opposite party, the latter
should ask fbr leave to file additional pleading in answer to the particulars.
(..Is to uhc'n particulars should be ordered and it hen refused see
Chapter /1/post.)
(For i-tiles regarding giving and ordering further particulars:
a;ui consequence of not delivering them, see Chapter IX post.)