PLEADINGS Pleadings are the backbone_of legal profession. It is a param wirement of a good lawyer to be Proficient in the art of pleadings: The eminent Jurists have ti tre ed tha should that gain stressed the need that the pleadings be concised and to the point. Therefore, it goes without saying juceessful lawyer should have the clear grasp of principles of pleading. As per Order VI, Rule 1 of the First Schedule _of the Code of Civil Procedure, 1908, Pleading” means plaint of written statement, portance of Pleadings : It is one of the important functions of an advocate. The importance of the art of pleadings is obvious inasmuch as the whole case of a p: depends upon how skilfully it is drafted by an advocate. A great care should be exercised while drafting the pleadings because if the pleadings | are not properly framed the. party in question would be in a disadvantageous position. The case of a party must be set out in his pleadings. The relief’ annot_be claiméd—on the grounds. which are not contained in Pleadings. Therefore; “it is essential to ensure that the specific pleadings. setting out the material facts must be given in the pleadings in order to m the relief on that basis. The immaterial or vague matter should be led and the pleadings should be properly framed. It is the case which been pleaded that has to be proved by the concerned party and the ic be given upon the grounds not found in the | lal Sunder Lal v. State of M.P., 1986 MPLI | A finding cannot be sustained which is based on no pleading and n0 evidence. The Supreme Court of India in Deoki Nandan v. Murlidhar, (AIR 1957 SC 138) set aside a finding of the trial court which was based on no pleading andno.evidence. The case in brief is that the plaintiff clearly pleaded that the temple was dedicated for the worship of the general public and in the written statement defendant simply pleaded that | the temple and the idol were private and did not state that the temple | was founded for the use and benefit of the family. At the trial the plaintiff deposed that the temple ‘was built with a view to provide a place | Worship for all Hindus but the witness of the defendant deposed only thst the founder of the temple built it for his own use and for hie puja only: Under these circumstances, their Lordships observed : | "The view of the lower court that the temple must be taken ! | 1 \ 1PLEADINGS 5 have been dedicated to the members of the family goes beyond the pleading, and is not supported by the evidence in cose" No relief can be granted in respect of which specific mention has not been made in the relief portion. It is relevant that the parties are permitted to adduce evidence in respect of facts and points of their casos as contained in the pleadings and no party is permitted to go beyond its pleadings. The sole object of pleading is to give fair chance to the parties to know the case of each other. This provides an opportunity to know the points of agreement and disagreement. The purpose of pleading is to eliminate vagueness and ambiguity. Thus on the basis of the pleadings of the opponent, each party knows what is to be proved at the trial and may bring forward appropriate evidence. The fundamental rules of pleadings are : Pleading should contain material facts only and not the law or evidence. All relevant facts should be stated which ied by th and evidence by which they are proposed t disclosed. The facts should be stated in bi vagueness. The entire law of pleading is laid down in the provisions of Order VI, Order VII and Order VIII of the Code of Civil Procedure, 1908. Order ‘VI refers to the general principles to be adhered while drafting and in_further dealing wit Pleadings. Order VIT deals the rules to b i jaint. Order’ VIII relates to the rules drafting of _State “the defendant. Besides, some procedures in regard to the practice are to be observed before filing a case in court. The provisions of Order_I regulates such practice, defining and determining who should be parties to suit. Order II about the manner of framing a suit, Order VI, Rule 14 provides as to who should sign. the pleadings. e regarding instituting a suit, and Order V. refers to the issuance of summons and their service. These are the fundamental rules which are to be strictly adhered. to by the parties to a suit. However, non-observance ies may lead to disasterous conséquences. The requirement of summons should be sent alongwith a copy of the plaint but cannot be compelled to provide annexures. determine the issue. Odgers in his ‘Pleadings and Practice’ observes “whe defendant is entitled to, know what it isthat the plaintiff alleges against him, the plaintiff in his turn is entitled to know what defence will be raised in answer to his_claim. The defendant may dispute every statement made by the plaintiff, or he may be prepared to prove other facts which put a different complexion on the case. He m point_of law or raise_a_cross-claim_of his own. any eee, the _t comes on it is highly desirable that the parties should know exactly what they are fighting about, otherwise ym great expense in procuring evidence to prove at thewa 6 PLEADING, DRAFTING AND CONVEYANCING trial_facts which their opponents will at once concede. It has found by long experience that_ the most. satisfactory method ining_this_object_is_to_make each party in turn state hig that_of his_opponent. before _the hearing. g, statements or answers to them are called tho Pleadings.” 7 Tt is thus amply, clear that if the Pleadings are not clear ambiguous and the partios do not get the opportunity of meeting opponent's cases, there would obviously be a miscarriage of justi iMinakshi Sundaram Pillai v. Sthanutna, AIR 1963 TC 36, 36]. The sole object_of pleadings is_tobring parties. to the real issue ayoid unnecessary. delay and reduce expense _in_ procuring _evid ither_party at_the hearing of the case. According to Bullen and Leake, "The principal objects of pleadin ; are firstly to define the issue of fact and questions of law to be decid between the parties, se ;, to give fair notice of the case which ba, to be met so that the opposite party may direct his evidence to the i disclosed by them, and thirdly to provide a brief summary of #1 case ¢ each party, which is readily available for reference and from which nature of the claim and defence may be easily apprehende and if constitute a permanent record of the questions raised in the action an, of the issues decidéd~therein, so as to prevent future litigation upd matters already adjudicated upon between the litigants." |; ‘The function of a pleading is not only for the sake of the partie, but _it_is intended to provide assistance to the Court by stating wile precision the area beyond which the dispute must not be permitted i¢ extend. [Pinson v. Lloyds and National Provincial Foreign Bank Lid (1941) 2 KB 72 at p. 83]. te Odgers in his ‘Pleadings and Practice’ (22nd Ed. at p. 88) states ta "The function of pleading then is to ascertain with precision th matters on which the parties differ and the points on which thet! agree; and thus to arrive at certain clear issues on which both partie! desire a judicial decision. In order to attain this object, it is nece: that the pleading interchanged between the parties should h rales El Be FS be conducted according to certain fixed rules....The main purpose of thet” rules is to compel each party to state clearly and intelligibly te material facts on which he relies omitting everything immaterial, 5] then to insist on his opponent frankly admitting or explicitly denyitt} every material matter alleged against him." 1 The Supreme Court in Ram Sarup Gupta v. College, (AIR 1987 SC 1242) observed : party to know the c it is imperative that the facts so that the other p: pleadings should, however, approach should be adop technicalities.’ party should state the essential materi?P arty may not be taken by surprise. ! fe receive a liberal construction, no pedantit! ted to defeat justice on hair split ‘el | General rule is that the relief should be founded on Pleadings m!FLEAS vices \ dard Chartered Bank v. Andhra Bank Financial Ser ies. [Stan 1 by Paring (6) SCC 84 : 2006 (7) SCI 469]. \ eandamentall R readings): an acts and not ‘Law’—A ploader’s_duty_is_to Fapiypon and not_the law-orJogal_inforencos. It ism fovallege that the-< ndant was guilty of misconduct. Facts regarding the |e juct fo be observed by. the defenda SSE mor misconduct_of which is pleaded, ba i duct_in the sed, as also facts which_.constitute_ th ct. that conduct should be alleged. The court is_based, 88 | plaintiff's opinion, a_breach_of that_conduct sou" alle “and_infer_from them thatthe defendant. has_been guilt of uct e_cause of \ will_examine misconduct, The plaint sho nly state facts leading to the_cav 1 notion against_a_defendant. —— | 2e" plaintiff is not_required to plead the law under which he claims a | decree, as also_it is not essential for_the defenc méntion points of Ww ing of facts is necessary. = ! Jaw in the written. state! Tt is well_settled_ | grown | should bs w 2, of the judgment cannot be the is which, haye_not..been. pleaded, it is n ary t_the pleadings ‘be ‘cific and not,.vague. The plaint ¢ contain the facts otherwise it will be considered-to-be. bad. In a case of bree the spevific_termsand_conditions agreed between. the. parties_m stated in the suit. The plaintiff should ‘allege how the breach has been state ied by non-fulfilment_of the such and such conditions. Merely. to 's been committed by the state in_the_plaint-that..a_br ch_of contract ha: defendant_will not as_it_is the inference drawn by the plaintiff. 2, Pleading of Material Facts-—This is another fundamental rule that pleading should facts on which the Plaintiff tain only material i that all essential and Defendant rely for th spective cases. It means e ade shall be alleged by the parties for the claim ‘and defence and” not e irrelevant ones. Now th 2 @ question arises what fects constitute material facta. The words ‘material facts’ mean the facts which are necessary and relevant and the concerned party must prove thosé facts at the trial ales, of course, admitted by the opposite ‘party. A pleader, after listening to his client about the case must be able to decide as to wl and which are not_material wea tobe narrated and which are not 2 | omitted. A good lawyer should possess _good_knowledge. see also $0 decide. which necessary ision_of the court It is pertinent to mention here that ac CPC. material facts are required. hel necessary, are req to _b h the above provisions. The spe | eee bar i “to material fact necessarily be given before | atate Particulars. In any suit for breach.of.contract, the plaintiff must Hate the period and_date-of delivery re or_ascertained goods and +t of contract. ‘Thereafter, other, | ao ‘his abide by his par vant @ the details of goods, quality and quantity uding thee any onPLEADING, DRAFTING AND CONVEYANCING 8 te, may be given. " a seen a caso of defamation, plaintiff dete P ; ficiously published which bi a Sh ae the_plsint. Tn ie. plain plain must specify the “3 fords and_the mode of pubiedtion. These are the. me na a a eadix z st “evidence;—Another im 8, Pleading of material facts, not lence— i tain facts are relied upon, it will suffice i rule is that where certait aa ana, ort eat ee ‘ idenes to prove the allegations. Thus, the plaintiff is not ‘requi qvidence | 0 prove the e_in pleadings, which he will “adduce’ at i trial to prove. the facts and.allegations. ‘The provision of Order VI, Rule,2 of the Code of Civil Proced lays down that “every~pléading, “shall contain, and contain only, statement_ it concise form of the material facts on which the pax for his_claim_or defence, as the case may be, but not tt nich proved." sustained should not find place in a pleading. In a case where time is not the essence of the contract, it is_enoup to plead that the work was executed within a reasonable time. There Bo need of explaining the delay i.e, the unfavourable weather or Worker's strike ete. which forms evidence to prove that despite of all th odds, the work was executed within a reasonable time, Such explanatil is the_evidence to prove that the time taken in execution of the wol was reasonable. In a case where an employ. course of his employment, it is suffi th e has committed a fraud during t] ufficient to narrate the fact of committit fraud_but the records which throw light in this behalf are not to disclosed since these are the documents by which the act of committi fraud will have to be proved. These documents shall be used ae evident Where the point in issue is whether X in a business organisation tomer of Y. It would not be a good pleading to state that X sharl the profits and/or contributed to the losses incurred in the busind organisation. It is enough to plead that X was a partner with Y in same business organisation, Admissior form of evidence, It is not necessary to list out letters which are considered material since they contain! ndition_can_be allege: ed_as a material fact. Whenever, it "ec malice, fraudulent intention, knowledge or ot of any person, it shall be sufficient to ‘allege ithout setting out the circumstances from which the sal 1 VI, Rule ClO. Be notice to any person of any fel 'atter or thing, it shall be sufficient to allege such notice as a fact, | th ami @ form or the precise terms of such notice, or the circumstances | from which eveh_notie | is to d, are material. [Order VI, Rule , Woe: "Whenever any contract or any relation between any person 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 @ fact, and to refer generally to such letters, conversations or circumstances without setting them out in detail. And if, in such a case, the person s0 pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may staté the same in the alternative. (Order VI, Rule 12, C.P.C.). For example, payment and acceptance of rent may be an implied contract of tenancy. 4, Pleadings to be Concise and Precise : The pleadings should not only be concised but must also be precised. Although the pleadings are required to be in brief but with accuracy and certainty. Pleadings must be clear and definite and should not be sacrificed for the sake.of.brevity. The construction of pleadirigs should be such so as to express with a high degree of certainty in order to facilitate the oppor exactly.know the case he is called upon to meet. A general charge of co: tion cannot be allowed in a pleading. The corruption must be specifically alleged in the pleading. It follows that exact nature of corruption should be mentioned so that opposite perty must reply and submit his defence in relation to that particular allegation of corruption. If precision is lacking in the pleadings the very purpose and objective of Pleadings to know the real issue of controversy would be defeated. In the context that the pleadings should be concised, it is relevant to understand names_of persons and places, if relevant, must be mentioned with clarity and accuracy. The of pronouns should be avoided-and instead "Plaintiff or "Defendant" as the case may be should be used otherwise using pronoun "he" may some times create ambiguity. This is a very important rule of pleading that "the material. facts should be stated in the pleading in.a.concise form but.with precision and certainty. The pleading shall, when necessary, be divided into paragraphs numbsred consecutively. Dates, sums and numbers shall be expressed in figures, as well as in words.” (Order..VI, Rule 2(1), 2(2) _and_2(3),-C.P.C.] The pleadings should be clear and specific, although in a concise form so as fo avoid ambiguity and vagueness, in order to opposite party to Know the is required to meet. The cheating must be. pleaded with ‘partic “cheating done in money transaction, cheating done by. tampering of documents etc. the exact nature of cheating should be Pleaded. Parties can take alternative pleas meaning thereby_that-the plaintiff qrsefendant are cntitled to rely.upon two. or more different sets_of facts. i prefer alternative and inconsistent_pleas. s but they 4s “permissible to_ should be based on { facts which are not contradictory or inconsistent. OrderSe ogy yup” vexatious, or Sy : 4] 10 PLEADING, DRAFTING AND CONVEYANCING empowers the court to order any mattor in the plea oe ula 16) crlivleted, if the altornative pleas aro likely to praia Gmbarrase or olay tho ‘trial of tho suit. Tho purpose of pormig altemative” pleas is to dispouo” of tho subject-mattor or caso in ; Itigation and reduc the possibility of anothor litigation, "Tt is also necessary to give certain dotails in Pleading which , reasonable. As a matter of fact particulars are the details essential to incorporated in the Pleadings so as to give a fair chance to the oppon to put up his defence. In the case of assault, the pleading should contain the particulary the date, time, the place of commission of the act. These particulars , necessary to be known to opponent to defend the case. "As a general rule, there should not be any variation between | pleading and the proof. The evidence should be adduced on pleadings q and not otherwise. A party cannot be permitted to give evidence building up a case inconsistent of its pleadings. direction by court. It is an important function of every court to get he irrelevant matter, defects and inconsistencies in the pleadings remo ensure a fair trial and in the interest of justice without prejud y in the suit. This power is conferred upon the court in on to determine the actual issues in dispute between the parties. If | pleading of a party does not contain all particulars of any material fe i VI, Rule 4 of C.RC., the court can exercise nower to a r_more details, The purpose of this rule is to remove ¢ ambiguity in the pleadings, to eliminate irrelevant matter, to indi parties ive at definite issues of controversy and to obviate furtl litigation: : The Court in accordance with the provisions of Order VI, Rule, of the C.P.C. may pass an order for striking out or amending any plead if the same is considered objectionable. Order VI, Rule 16 of the C.F stipulates that : “The court may, at any stage of the proceedings, order to struck out or amended any matter in any pleading— (a) which may be unnecessary, scandalous, frivolous _ (b) which may tond to prejudice, embarass or delay t | fair trial of the suit, or (©) which is otherwise an abuse of the process of t ~ court." = : A party can_make request to the court. to strike out make requ x or amend t unnecessary or objectionable matter in the pleadings of the opposite pat The provisions of Or. Rule 17, C.P.C., in re e of Order. V 17, C.P.C., in regard to amendm? of_pleadings, confer a wide discretion upon the court and it ao w settled that the discretion may be liberally exercised whereee " amendment sought by a party enables to i between the parties. The object determine the actual controversy of this rule is that all amendments that may be necessary in- determining The eet ete oe without causing injustice to the other pi if in the opinion of t_of pleadings is that out amendment to secure a new claim = pa Proviso to Order VI, (Amendment) Act, 2002——~ is_not allowed to carry! y setting up a new case. LZ vide Code of Civil Procedure ent_shall_be allowed ess Court_comes.to the igence, the perty _could not have ement of trial." is not applicable to pleadings filed prior to 2002. (L._Narayan Redd; v. PB. Na (Givi) 341 (Madras, ly Tayan Reddy, 2004 (4) RCR (The party desirous of adding some new particulars, after filing the original pleadings, which it discovers subsequently may do so after obtaining Iéave of the court. The concerned party cannot adduce evidence on such new facts or particulars unless he furnishes new facts or particulars. A plaintiff may file an additional pleading in the form of a written statement and a defendant in the form of an additional written statement. But procedure for filing additional pleading is to obtain leave of the court and not otherwise. The amendment of pleadings cannot be done as a matter of right but it is only the judicial discretion which may permit such an amendment of pleadings by the parties. | The law. for granting amendment by the court is well settled. The amendment wl ig Hiécessary for ascertaining the real issue in dispute not be disallowed unless it does not cause any injury to the other party. It is also well-settled that if new facts are put forth which do not alter the character of the suit, the amendment should not be refiised to be_incorporated. However, such proposed amendments which are based on mew cause of action and change the entire character of the suit cannot be allowed. The amendments which are beyond the scope of subject matter of dispute cannot be allowed. The object behind this is that amendment should assist the court to come to the conclusion of the real issue and not to unnecessary drag the suit without focusing the real issue in controversy. The genuine am help _in resolving the controversy Whereas the vague confusion and it is i 2 unnecessary amendments. Amendment which is in fea new (ause of action and to prefer a new claim < al was held (£16 in Anna) arwal v. Jitendra Kumar Sinha, (AIR. 1! urna ae G hee that even if new facts are asserted but if such facts do not change sae. if the © chara i ndment should be allowed. But_if th HW assertion of the suit, the amenc met action which changes the whole Fe cannot be allowed. such vague and= ie PLEADING, DRAFTING AND CONVEYANCING f ne der dis not permissible under considering the application, Addition of any inconsistent_groun: ule TTF CRC. ds. [Satya VI, Rule 17 of CPC. The court, whil j) Sxamine the consistency gro (L) Rarnamdas v-Saniok Singh, 1986 PLJ 691 P & W). : The decree in suit, ordinarily, should be accorded with the rights the parties as they are obtaining on the date of its institution. But w} it is shown that due to change of circumstance the original relief cl has become inappropriate or that it is essential to have the verdict of: court on changed circumstance to shorten litigation, it is incumbent a court to take notice of subsequent events that have taken place sj the institution of the suit and to modify its decree in accordance with circumstances as they stand at the time the decree is passed. [B) Prakash v. Munnalal, AIR 1979 MP. 157). No_interference with order_allowing amendment _is desirable amendment _neither_changes_nature-of-suit-nor_is_inconsistent with faq impleaded_in_plaint_and otherwise essential for determining the rq matter_of dispute. " mater af (Ram Chandra v. Jarain Mathur, ATR 19 If the tenant has admitted a person as the ({ ) allowed to change his statement beeuently. pena aa be_cannot Q/ 1988 A LY 758). ie The amendment sought if causes seri judi pg igerouly change the nu sult Uae sae other al né—aspect. Harjiwan~ Govind Bhai v. Su ad examil CEES ory, CUEeee Goind Bhat. Sushil Kumar Mooichand, 1h Tt is correct that the court has very wi mmendments of tio pleadings if ivch iamevimery are ae for allowit view to determine the real questions in controveray bet ential with and in the case of written statement the courts are very ibe the parti the amendments, but at the same time, the amen eral in allowil written statement cannot be permitted ‘when in plactt,i® Pleading action, another cause of action is sought to be substitute i: ne cause subject-matter of the controversy in suit is sought to kee the comple! party cannot be allowed to put forward by amendmen, © chan, contradictory allegations which are in the nature of”, ™onsistent admitted position of facts or which are mutually destrug€&tion facts which had already been pleaded. It is permissibie'®, v It ip just and proper Aha tho "pain ity ‘to make out a case in terme of ¢\ caer that the amend) for the purpose of determinin parties in the light of the ‘AIR 1980 Cal 271). ‘The general rule in regardCHAPTER 3 PLAINT ‘Introduction! The plaint is a document for instituting a suit in the proper cour, of law. It is a very important locument which is drafted by consultation with 7 it ting @ plant to the court There are different grades_of_courts in a Staty according to pecuniary, territorial. er_exclusive jurisdiction wii regard to the subject-matter. Every suit shall be ‘be it competent court. "The plaint is the basis_of preferring one’s claim in a court of and hence important..document. Therefore, before framing plaint it is essential to. ascertain_as to what particulars are nécessary include. Order VII, Rule 1 of C:PCC. is relevant in this context ‘which _fa) the name of | in which the suit is brought; “) the _Rame, description and place of residence of the plaintiff; So) the name, description and place of residence ot the defendant, so far as they can be ascertained; et where the plaintiff or the defendant is a minor or 4 mind, a statement to that effect; facts constituting the cause of action and when i arose; Gf the facts showing that the court has jurisdiction; (gy the relief reli which the plaintiff claims; (bY where the tiff has allowed a set-off or relinquished pre of his | claim, the amount so allowed or relinquished; Ga statement of the value of the subject-matter or the suit for the purposes of jurisdiction and of court-fees, so far a the: case admits." A pleader has to il_suits_are dealt with as pet the provisions of the Code of Civil Procedure, 1908. The Code of Criminsl| Procedure, 1973 contains the provisions for the criminal cases. Fo!PLAINT 7 Revenue_casee the provisions. Reforms Act are applicable, The particulars of the plaint are being doalt with one by one in the following manner : (@) ! OUrss ‘The plaint shall contain the name of the court in which the suit is brought such as $< —— Tp the Court of District Judge at. In the Court of Small Causos at... In the f Munsi : In the High Court of Judicature at, In the Supreme Court of India at New Delhi. (b) ‘Description of Plaintiff. ‘The next item of plaint shall contain the name, description and place of residence of the plaintiff. However, in case of more than one plaintiffs, {he name, description and place of residence of each plaintiff must be set wate of the parties should be mentioned failing which be jn serving notice or summons. Theréforé, correct Gestription is needed to be mentioned in, the plaint in respect of the concerned parties, The residential address of the plaintiff should also be securately mentioned. In case of more than one plaintiff, the names of ‘each concerned plaintiff should be given and numbered as 1, 2% 8, 4 alongwith the complete and correct address. tis “also very essential to decide the parties while instituting a suit. A plaintif’ therefore, must select as to which party should be included aniwhich should be excluded. A plaintiff may exclude parties whose presence i cr he may “iichide parties whose presence is Prelovent: Thus, it is the Yesponsibility of the plaintiff to choose the right parties toa suit. Parties may be categorised as necessary parties and proper parties. In this context Order. I, Rule 10(2) stipulates as follows : “The court at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck ov, mee pet the mame of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable tho court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." _ The distinction between necessary. party and proper party_is very significant. inasmuch.as withoutparticipation of the necessary party an effective order is not po tobe passed but, effective ‘order can be Passed even. without partici fhe proper party but participation of Proper party is essential for_the “complete and final, decision on the Tasues involved in the proceeding of a suit.18 PLEADING, DRAFTING AND CONVEYANCING ‘The plaint shall next contain n of the defendant. It is necessary to pare, dee complete address of the defendant as in the case af pint i nat i i ii i cient In ‘case of suit against the Government it_shall be suffi nt ty mention the Central Government or against the State Government : “The State of. 7 If the suit is instituted against j fi than one person, the name, description, F 3 place Ct basiness of the firm or corporation need be given. pice PI fnore than one defendant, the names of each concerned, defendant alongwith description and_place__of residence should _be_given ani mamberedas 1, 2, 3, 4. It may be mentioned here that description, includes— 2 — Name of the father, age of the person concerned and correct postal , description_and place of resideng| tye correct name, description ani) / rm or a corporation having mory place of residence as also the “Description of Parties : Union_of India, through Sec New Delhi. tary, Ministryof Industry, ae Plaintiff versus Surendra Nath, S/o Mahendra Nath, Proprietor, Surendra Engineering ‘Industry; Industrial Area, Okhla, New Delhi.. Defendant. * * * * * * * * Satish Chandra, S/o Rajendra Prasad, Resident of 16, Dilkusha, Lucknow... .»-Plaintiff. versus State of U.P. through Secretary, Ministry of Food & Civil Supplies, Secretariat, Vidhan Sabha Marg, Lucknow... Defendant. * * * * * * * * State of Uttar Pradesh, through Secretary, Ministry of Labour & Employment, Secretariat, Lucknow. Plaintiff versus Kama Flour Mills, 32 Aishbagh Road, Lucknow... (@ ‘Plaintiff as Minor o: .Defendant. f Unsound Mind. Every _suit by a minor di name b; k : inor shall be i | name by a person who in such suit shall be called the next friend of the minor. Where the plaintiff is unsound mind, a statement to that effect should be made. (e), Facts constituting | » of action: | This is the most important item of a plaint that in its body the facts constituting the cause of action and the date when it arose must ly be given. A separate paragraph duly numbered should be | provided fo .aterial fact. It is important to note that different facts | shou! ed up in same paragraph which may create confusion+ nebenguaitty — give up > pant wit PLAINT 19 The lack f_a_material fact in the averments in the plaint was enous toi the suit as not disclosing cause of action. (H.D. Vashishta v. Gl boratories (I) Lid., AIR 1979 SC 134, 136]. caae- shisha ¥. Glaxo Zaboratories 1979 SC. ——ft is @ foremost duty cast u laintiff to show that his sui sa in inn. "Therefore, the date must be mentioned for the section to establish that t the suit is filed within the time limit as per the provision cf Indian Limitation Act, 1963. If the suit is filed beyond the period -preseribed, ‘ {by.the_law_of_limitation, the necessary grounds should be -_infringement or ction ‘a chronological_manner, giving. a a concise form with dates, matter and the nexus wher the plaintiff. The plaint shal OW. facts of the subject matter that the defend cS Sr the plaintif’s claim, The~plaintif’ may plead facts on the basis alternative one rélief or the other. The plaintiff shi ¢ the material facts in. the. plaint. so_as_to enable the Strendant and the court to ascertain whether factually and legally the cee TT action did arise aé alleged or not. These necessary facts must air appropriate places in the plaint. However, they should not lant is liable to appear in be repeated, since unnecessary repetition is one of the worst kind of pleading It is worth mentioning here that if the essential ingredients of d. cause of action are not mentioned in the plaint, it is liable to be rej ‘Order Il, Rule_2 of C.P.C. regarding cause of action in framing a suit may be referred which lays down thet : vy (4) Every suit shall include the whole of the claim which the ini js entitled to make in respect of the cause of action; but Jinguish any portion of his claim in order to bring e ji iction of any court. ff omits to sue in respect of, or intentionally relinguishes, any portion of his claim, he shall not afterwards sue i st of the portion so omitted or relinquished. jtled to more than one relief in respect of the for all of any of such reliefs; but if he omits, except with the leave of the court, to sue_for all such reliefs, he shall not afterwards sue for any relief so omitted." ‘The abovementioned rule stipulates that the whole claim_in_reepect ‘of the cause of action should be made in a suit and the pl cannot choose to split up the claims_in respect of the same..cause way of subsequent sui jntended to avoid multipli and restrict the unnecessary number of litigations. If the plainti’ seeks the recovery of money, the plaint_should state the accurate amount claimed. But if the plaintiff_sues_for_an amount its between him whith will become due to him_on taking unsettled _accoun! “app fount sued for. PI plaintiff may re | the suit within \ | { ana the defendant the plaint shall state approximate2 Ge PLEADING, DRAFTING AND CONVEYANCING In a suit where the ~ et ae is_immovable_property, 4) complete description of the_p 9@_given_in_the_plaint in ot to identify. it, However, if lean ‘ctaile and particulars are lacking, court can”ask the party to provide better and fuller particulars of tf immovable-property. [Karunamoy Dutta.’ ‘of Bihar, 1983 BLIR 244 () [Court's Jurisdiction./ It is usual to state the nature of the st the suit and the value thereof f srisdiction_of th . It is the duty of the pleader tituted_in she competent court art having jurisdiction the plaint that it m thas thas jurisdiction, [Order VI, ‘hal 1 of oe Pl In this context Sections 15 to 20 of the Code of Civil Procedure 1908 are to be referred which lay down :— Section 15. Court in which suits to be instituted.—Every sui shall be instituted in the court of the lowest grade competent to ty it, Be ection 16. Suits to be instituted where subject-matter Subject to the pecuni ‘other limitations prescribed ly aay ay lew, suite— (a) for the recovery of immovable property with or withoul rent or profits; (b) for the partition of i (©) for foreclosure, sale mortgage of or charge upon immovable property; nation of any other right to or interes vable_property; “(e) for compensation for wrong to immovable property; (® for the recovery of immovable property actually undet distraint_or_attachment; shall be instituted in the court within the local limits of who: jurisdiction the property is vituate : Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant ey, were te relief Sau ght cant nrough his roperty is situate, “whose jurisdiction thé ‘fo immovable _property _ ae Fiferentepur —Where a suit is ;, OF compensation for wrong to, immovable property situate rit th e ju diction. of irene courts the suit may be Ee iat wit ocal_limits of wh in a eg eluate whose jurisdiction any portio®PLAINT a Provided that, in respect of the value of the subject-matter of the_suit, the entire claim is cognizable by such court. Section_18. Place of institution of suit where local_limits of jurisdiction of courts are_uncertain.—(1) Where it is alleged to be ‘uncertain within the local limits of the jurisdiction, of which of two or more courts any immovable property is situate, any of those courts may, if satisfied that there is ground for the alleged_uncertainty, record a statement to that effect and th on proceed to entertain Gnd dispose of any suit relating to that proporty, and its decree in that _p the_suit_shall have the same effect as_if the property were situate within the local limits_of its jurisdiction Hs reper» Provided that the suit is one with respect _to_which the court is competent as regards the nature and value of the suit to exercise ction. ae (2) Where a statement has not bee: (), and an_cbjection is tak te or revisional court that a decree o: ine re to such property was made court not having jurisdiction where the property is situate, the appellai sional court shall not allow the objection unless in_its opinion there was, at the time of institut suit no reasonable ground for_uncertainty.as_tothe-court_having jurisdiction with respect thereto and there has been consequent failure of justice. Section, 19. Suits for ypensation for wrongs to person or movables.—Where a suit is.for compensation for wrong done to the person or to movable property, if the wrong was done withixi the local limits of the jurisdiction of one court and the defendant resides, carries on bi personally works for gain, within the local of the jurisdiction of another court, the suit may be instituted ‘of the plaintiff in either of the said courts. ther suits to be instituted where defendant resides or cause of action arises.—Subject to the limitation aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction— meno (a) the defendant, or each of the defendants where there are_more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants where there are more than one, at the time of the comm ent of the suit, actually and voluntarily resides, or carries on business or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not_reside, or_carry on business, or personally works for gain, as aforesaid, acquicsce in such institution; or (©) the cause of action, wholly or in_part, ‘arises." sub-section \@) Reuer, The plaint shall finally contain tho relief be claimed by the3 | aia PLEADING, DRAFTING AND CONVEYANCING e. (Order Vil, Ru either simply or in the alternativ lays down that : : “Every plaint shall state specifically the relief which the plaingy claims either simply or in the alternative, and it shall not 1 or other relief which may always necessary to ask for general Iwa: given as the court may think just to the same extent as if it Boon asked for, And the same rule shall apply to any relief claim; Coby the defendant in his written statement." A general rule is that the plaintiff is not entitled to relict there is no foundation in the plaint. But there is one on ation, that i S¢ where on the basis of pleadings, issues and the evidence, 's apparent and clear, because the primary duty of court is to justice and rules of pro to advance the cause of justi ‘and not to impede it. Shankariah, AIR 19 Andh. Pra. 784). Under Order VII; Rule 7, C.P.C., the court can grant relief on basis of the facts proved in the case. A plaintiff ought to be granted si relief es he is entitled on the facts proved upon the evidence in the even if the plaint does not contain a specific prayer for the reli (Multipurpose Cooperative Society v. State of Bihar, AIR 1984 Punj. 1 Hence equitable relief under Order VII, Rule 7, C.P.C. may be given, et though ground on which relief is sought have not been mentioned i gecordanca with the rule. [Kashi Chaudhary v. Mujtaba Hasan, 1981 BI “If the plaintiff wishes to claim more than ief i the plaintiff wishes to claim one relief same cause of action then each relief should be satel gatas 4 they should not be mixed up. It is also eseential that all reliefs me claimed ine suit for the same cause of action failing which the vient shall [mreartates ee in a new suit for the omitted relief. I uished: portion of claimi—The plaint shall specifi the amount of relinquished portion of the claim of plaintiff’ as @/ Valuation of suit—A suit has to bi Se ae ie ie eval Pecuniary jurisdiction according to the market value of the nui se Jaye down that “a statement of the value courtees, 0 far a8 the case admite” Py Pes Of Jurisdiction and d . The valuation given i i i the frum of appeal og Lat ® Hornarayan Singh, TGR'I0 All Sl B context the provisions of the Court d Sui as_also the High Court Rules should ieee Salta Valuation z Section 149 of the Code of Civil Procedure, 1908 lays d a Power to ate, up_deficiency of court fees.—Where the » hole of part of any fee prescribed for any document by the eet Se rrPLAINT 23 ing to court fees has not been paid, the court rson, by whom such Hay, in its diseretion, at any_stage, allow. i je, to pay the whole or part, as the case may be, of such locument, in respect of which fe court fee, and upon. such payment the doct 7 st i ble, shall have the same and effect a8 if such the first_instance.” very. relevant_and_should be construed “the Court Fees Act and Section 11 of the alongwith Se Suits Valuation Act. § Jn the end the plaint_should bear_the signature_and_verification of the parties concerned. The plaint ‘shall be considered_as improper if it sot _be ed_and verified. has not been signed and verte Order VI, Rule 14 and Order VI, Rile 15 in respect of signing and respectively lays down : ea verification_of the pl = Order VI, Rule 14: "Pleading to_be_signed—Every pleading shall be-signed by the party and his pleader Gf any) : ‘Provided that aang is, b of absence or for other good the pleading, it may be signed by any person Teign the same or 10 sue or defend of his Qrder VI, Rule : Verification of Pleadings : (1) Save as fe provided by any law for the time being in force, eveiy pleading shall be verified at the foot by the party on by_one of the parties pleading or by some other person proved to the satisfaction Prthe court to be acquainted with the facts of the case. (@ The person verifying shall. specify, by reference. to the numbered paragraphs of the pleading, what he verifies of his.own Imowledge and what he verifies upon information received and believed to be true. (8) The verification shall 1e shall state the date on which and the place at which it _The verification is_intended_to_show..that the_person. verifying the plaint knows the contents and is responsible. statements made i . paint, It is. an important _part_to.verify the contents of the plaint. since false verification is-an-offence.and-puni 193 of the Indian Penal Code to the effect of. giving_felse or the person othe! signed by the person making it and as signed." the verification shall be signed by the_pl state_ she date. on_which_and_th ji gs on behalf of Government _respondent_it must be eee by duly a | officer. A corporation mpany registered 1. Comp: ing the plaintiff_in_a_suit, the Secretary or Sn) Director or_principal. officer. of the Corporation or company_can_sign tify the plaint who. must_be fully acquainted with the case and is able | the po. depose to thefacts. It would be proper to state “in_the_plaint that abjer Steen signing. "and verifying the plaint ia the principal officer and ‘is depose to the facts of the case. (Laxmi v. Purna Chandra, AIR was_signed. In pl24 PLEADING, DRAFTING AND CONVEYANCING 1985 Cal 770.) ‘ : : : } The court has discreti ignore defect. in_verification_which is, ‘of Vi, Ri 14 and 16 are procedural error. Requirements , 4 5 ural and the party can rectify such deficiency at a later stage: [Rani Pian! Collector, Sub-Division, Gohar, 1994 Punj LJ 410.) Replication is the reply given by the plaint of the defendant. It is the plainti js filed in compliance of d 's_answer 0 jourt’s order. i 8 au e counter questions raised in the d Plaintont: However, the plainfi i not allowed to introduce = new ¢ earlier pleadings as contained in his plaint. 7 only. counter question raised by { en_statement. In this context Order VII, Rule 9 C.PC. empowers the court to ask th juent plead or a reply to answer. the pléds raised by the defendant in his_writ statement and fix a time_for presenting the same. The plaintiff_of | own cannot file such a reply except by way of reply to plea of s t-off a counter claim raised by the defendant. [Venkataswami v. Uppilipalay: V.V._Nidhir, AIR 1935 Mad 11’ eS | ‘Return of Plaint/ | ‘According to Order VII, Rule 10 of the Code of Civil Procedure, 1% the plaint shall at any stage of the suit be returned to be presented) the court in which the guit should have been instituted. This rule de isdiction of the court and whenever the court discovers th isdiction to entertain the suit, it is empowered to order! presented to the proper court, | jection of Plaint: f The court can reject a plaint at any stage of the proceeding Order VI, Rule 11 of the Code of Civil Procedure, 1908 which lays do (a) where it does not disclose a cause of action; | (b) where the relief claimed is undervalued, and the plain ‘ 2 aimed is 5 e_plaint on being required by the court to correct the valuation within a ti to be fixed bythe court, fails to do_so; (c) where the relief claimed is properl 3G relief perly_valued, but at is written upon paper insufficiently stamped, and oe | being reauired urt_to_supply_the requisite stamp-pa? a tine to ixed by the court, fails to do so; be bag tere ihe sult anpenra from the statement in the plaint 1[(e) where_it_is not filed_i icate;] 2) where the plainti 3 ‘le ae : | 9): —_—_ is to comply with provisions of RY 1. Ins. by Act 46 of 1999, Section 17(ii), (w. 7-7 2. Subs. by Act 22 of 2002, ‘Section ah ier a it] i return for beingPLAINT 25 for the correction of apers shall not be ded, is satisfied eptional Provided that the time fixed_by evaluation or supplying of the re extended _unless_the court, for reasons to ber that the plaintiff was provented by any cau nature from correcting th or aupphiing Hamp-papers, as the case may be, within tho time fixed by the court and that refusal_to extend such time would cause grave injustice to the plaintiff. If the suit_does not discloso_any causo of action and is not maintainable, the question. should he decided in preliminary issue. (Darul Tum Islamia v. Civil Judge, Basti, 1986 All LJ 1130) ae TF an election petition of action it can be dismissed summarily at the igs under Order VII, Rule 11 of the C.PC. AIR 1987 SC 1926] Tn ease it th rourt was correct und that tl ng. then before appeal could be heard on merit, appellants would be required make up deficiency in the plaint as well as in the appeal failing which appeal will be dismissed for want of court fee. Nihar Kaur v. Madan Lal, (1987-1) 91 PLR 839) . When plaint is returned by one court for presentation to proper court bearing jurisdiction, then unless plaint is presented to proper court of competent jurisdiction, it cannot be said that suit has been instituted. [Gopal Ram v. Mohan Ram, 1995 (2) All RC 320] When the court comes to the conclusion that the suit is not maintainable for any of the reasons given in Order VII, Rule 11 of the CPC. then the plaint has to be rejected. [Ram Barai Bhagat v. Munni Lal Singh, 1984 BLJ 23) Documents are req re produced as per provisions of Order CPC. and Rule.2 of Order XIII, C.P.C. empowers the court cumentary evidence at any subsequent stage of the nceedings provided good cause is shown to the satisfaction of the court for the non-production thereof, and the court receiving any evidence shall record the reasons for so doing. It is the well known principle that no evidence should be allowed contrary to the pleadings. The plaintiff, for og any relief in hia suit, must prove his own case as pleaded in the Amendment of Plaint. Prot’ court may in terms of Order VI, i cedure allow the amendment to be ma of the C.P.C.-lays down: {The Court may at Party to alter or amen terms as may be just, and all s may be necessary for the purpo: m Subs. by Act 22 of 2002, Sec. 7 (wef. 1-7-2002). le 17 of the Code of Civil “the plaint. Order VI, Rulethe commencement of trial. U oudbda Naicker v, Veluch i 2004(2) CTC 742; L. Narayan Reddy v. F. Narayan Reddy, AIR 2008 Mad, 66.] d plaint. Pleadings are amended by the _party within the time prescribed by Order Vi, Rul “18 of the Code of Civil Procedure, 1908. Time had been me 1e fixed for amendment by. the aforesaid rule to ensure, expeditious disposal of suit. é Order VI, Rule,18 of the C.PC. : Failure to amend after order.—If a party who has obtained an order for leave to amend ..does..not..amend accordingly within the time limited for that purpose by_the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not. be permitted to amend after the expiration of such limited time as_ aforesaid or of such fourteen days, as the case may be, unless the time is extended by, the. court. Amendment seeking to change nature of suit or seeking to raise new fe cannot bé allowed. [Rajendra Singh v. State of Bihar, 1995 (1) PLJR 74.) : New relief on the basis of subsequent events taking place during pendency of suit, can be permitted to be added by amending the plaint. IK. Shanmugham v. S. Lakshmi Ammal, 1996 AIHC 3408 (Mad).] Amendment of plaint can be allowed to draw out and expand existing facts in plaint. [Uma Rani v. Hindustan Petroleum Corporation Lid., 1995 ( MLIR 428.] It is no ground to dismiss application for amendm Mere delay in seeking amendment of plaint. [Kodandai Rullamyn? 1996 ATHC 3537 (Mad).] ent on account of rama Gounder V. its adn hing hat ae paint‘ CHAPTER 7 davit is a written _declaration_on oath)(A_written_statement is sworn before @ person having a to An_ affidavit ss (—to__such._ fac ponent 3 é of his ov Jedge to prove, except...on__interlocutory _s plications on which iat ements as to his belief, with the grounds thereof, ma ‘be admitted, Ojer XIX of the Code of Civil Proce its. Rule eS Sf the Order lays down that "Any court mai G yéason order. that any. particular. fact. or facts _may_be.pro\ : hearing, on, such wit_of any witness may be read : cont 2 0 Provided that where it appears to the court_that_either party bona fide desires the production of witness for_cross ination, and that such witness can be produced, an_order shall _not_be evidence of such witness to en_by_affidavit.") Rule 2 of the Order_provi 3 that : "(1) Upon_any application evidence may be given by affi but the court may, at the instance of either party, order the attendance for cross-examination of the depo “@) Such’ attendance shall be in court, unless the deponent, is exempted from personal appearance in court, or the court otherwise directs."y (Section 139 of the Code of Civil Procedure provides for, the oath on affidavit _by wiom to be administered. _ Gccording tothe Rules_of_the High Courts in_India,, there is no difference between the evidence given in the box and the evidence on affidavit in that they are both, absolutely privileged and no action for libel lies for any statement i ‘The real difference between a ‘solemn affirmation’ and ‘affid the applicant. is to solemnly affirm that the statement made in the petition are true to his own knowledge whereas in_the case of an affidavit, it may be sworn by an} acquainted with, the, facts of the case): [ILR 58 Cal 1389] : ne 1_depositi that the former_is_always examination, while the latter is evidence ‘and is subjected to cross-examination of nade ex parte and without cro: rh on oath in the witness box e deponent} é : Rule affidavits must strictly conform. to the provisions of Order XIX, peru and in the verification it must be clearly stated as to which ions are being sworn on the basis of personal knowledge and whicha 124 PLEADING, DRAFTING AND CONVEYANCING on the basis of information_received_and_believed_to_be true) In the case the source of information should also be disclosed. ‘Where the ty and source of information are not disclosed, the affidavit isn, accordance with law and such an affidavit is inadmissible in \ It is very important and material that the affidavit shoul | properly verified otherwise it cannot be treated as evidence. ‘Affidavit is an important document, and, therefore, i, shou, prepared very carefully. It is noteworthy that furnishing oF 8 falas afta is punishable under Sections 199 and 200 of the Indian Penal Code, 7 Revanna v. H. Chandrappa, 2007 Cri. LJ. 1995 (Kant). ‘An affidavit is sometimes ired_to_be_filed_in support g, “the facts and. grounds efc. should be ment only. But the application must. state ‘support of the application are being given. in. (Affidavit being an important document requires great, care and i in piiidevit being on impenoted in this eonnection that various Ij Gourts have made.its.rules and affidavit should be drafted so as to n he ments of those rules. However, following rules_of_genm ould be taken into account while preparing an affidavit : “{a¥'The person making the affidavit shall be fully describeli an affidavit in order to establish his identity clearly. For this purpx it shall contain the full name, father’s name, his professional stata occupation or trade and complete residential address. _4b) An affidavit should be divided into paragraphs # numbered consecutively and each paragraph should be confined ti! distinct fact. ( The declarant when speaks to any fact within his # Imowledge he should use the words "I solemnly affirm" or "I m! oath and say" or that "The deponent solemnly affirms. and states under." A@, Affidavit should generally be confined to matters within perdonal Knowledge of the declarant. If he verifies a fat information received, he should make a specific mention to this and use the words "the information received from so and so Wl I believe it to be true." ef Every person making an affidavit for use in a civil ¢ shall, if not personally known to the person before whom the afi is made, be identified to the person by some one known to him the person before whom the affidavit is made shall state at the of the affidavit the name, address and description of the pers? whom the identification was made as well as the date, time place of such identification. Such identification may be made Retuan _Povannally acquainted with the person to be identifit satisfied from papers in that person's possession ise | hana or otherwise (f) The perscn before whom affidavit is being made shall, |the same is made, ask the person proposing to make such affidavit ff he has read the affidavit and understood the contents thereof and if the person proposing to make such affidavit states that he has not “oad the affidavit or appears not to have understood the contents thereof, or appears to be illiterate, the person before whom the Sfidavit is being made shall read and explain, or eause some other competent person to read and explain in his presence the affidavit to the person proposing to make the same, and when the person before whom the affidavit is being made is thus satisfied that the person proposing to make such affidavit understood the contents thereof, the affidavit may be made. 3-'The person before whom an affidavit is made shall certify at the foot of the affidavit the fact of the making of the affidavit before him and the date, time and place when and where it was made, and shall for the purpose of identification mark and initial exhibits referred to in the affidavit. oe ‘Any clerical error corrected in the affidavit shall be initfalled by the person before whom the affidavit is made. “@) Amendment in an affidavit is not permitted, but a supplementary affidavit con be filed with the leave of the court when any error or mistake is intended to be corrected or any addition is intended to be made. Gy The affidavit should contain the following oath or affirmation at the end. "[ swear or, solemnly affirm that my this declaration is true or, that the contents of this affidavit are true, and that it conceals nothing material, and that no part of it is false." cation |; An affidavit must be verified to. show. the.genuineness end authenticity of facts and allegations made therein and also to make the € Tiable for the allegations. Verification of an affidavit must @ done on the lines of Order XIX, Rule 3, C.P.C. The verification must specifically make a mention with reference to the numbered paragraphs of the affidavit aa to what he verifies of his personal knowledge and what he v ation received and believed by him to be true: It has been “held that~ where an averment is not based on pérsonal Imowledge, the source of information should clearly be disclosed. [State of Bombay v. Pursottam, AIR 1952 SC 317; Ranjit Construction Company Lid. v, National Highways Authority of India, AIR 2004 Delhi 64.) If an affidavit is not properly verified it cannot be admitted in evidence. ‘CONTENTS OF AFFIDAVIT ( (Partstoflanvaffidavit—An affidavit may broadly be divided into the following parts, namely, the cause title, description of the deponent : Osth or affirmation, recitals, which may, again, be subdivided into two Parts, the first describing the capacity of the deponent in which he swears or affirms, and, second, the fact or facts, put down in a narrative sequence, verification by the deponent, identification of the deponent and off certificate of verification to be given by the person before whom an idavit is sworn.