UNIT — II

 Institution of suits and summons: (Sections. 26, O.4 and

Sections. 27, 28, 31 and O.5);

 Interest and Costs (Sections. 34, 35, 35A, B)

 Pleading:

o Fundamental rules of pleadings

o Plaint and Written Statement

o Return and rejection of plaint

o Defenses

o Set off- Counter claim;

 Parties to the suit (O.1):

o Joinder, misjoinder and non-joinder of parties-

o Misjoinder of causes of action-

o Multifariousness.
 Institution of suits

Karnataka Civil Rules of Practice : - 5 Description of the

Proceedings.-
(1) A suit instituted in any Court subordinate to the High Court, other than
a suit cognizable by a Court of Small Causes, shall be designated an
'Original Suit' and indicated by the abbreviation "O.S.".
(2) A suit cognizable by a Court of Small Causes shall be designated a
'Small Cause Suit' and indicated by the abbreviation "S.C.".
(3) All proceedings in execution of decrees or orders shall be designated
'Execution Cases' and denoted by the abbreviation "Ex.C."
(4) Original proceedings other than Suits and Execution Cases shall be
classified according to the nature of the subject matter and be designated
as mentioned below and indicated by the abbreviation noted against each
category:
(a) Land Acquisition Cases - L.A.C.
(b) Matrimonial Cases - M.C.
(c) Guardians and Wards Cases - G. and W.C.
(d) Probate and Succession Cases - P. and S.C.
(e) Insolvency Cases I.C.
(f) Arbitration Cases - A.C. 1[
(ff) Arbitration Suits - A.S]
(g) House Rent Control Cases - H.R.C.
(gg) Accident Claim Cases under the Motor Vehicles Act - MVC.
(ggg) Company matter,-
(a) Company Petitions - COP.
(b) Company applications - COA.
 (h) Miscellaneous Cases (i.e. cases not falling under any of
the above categories)- Mis.C
(6) Revision petitions under any special enactment shall be designated as
'Revision Petitions' with a brief reference within brackets as to the nature
of the case and indicated by the abbreviation 'REV'
Introduction
ESSENTIALS OF SUIT
There are four essentials of a suit:
 Opposing parties
 Subject-matter in dispute
 Cause of action and
 fit Relief.

PARTIES TO SUIT: ORDER 1

Order 1 deals with the parties to a suit, the first essential of a suit. It also
contains provisions for addition, deletion and substitution of parties, join-
der, misjoinder and non-joinder of parties and objection as to misjoinder
and non-joinder.
Karnataka Civil Rules of Practice : - 6. Description of parties.-
1. The contending and opposing parties shall be described as
 Plaintiff and Defendant respectively in Suits
 Appellant and Respondent in Appeals,
 Decree-holder and Judgment-debtor in Execution Cases and
 Petitioner and Opponent in all other proceedings.

(2) The proceedings before appellate and revisional courts, the ranks held
by the respective parties in the lower courts, shall be indicated within
brackets in the cause title.

Joinder of parties
Plaintiffs and Defendants are two parties to the suit but there can be
multiple plaintiffs and defendants and then there will be question of
joinder of parties
Joinder of plaintiffs: Rule 1
Rule 1 provides for joinder of plaintiffs. It states that all persons may be
joined in one suit as plaintiffs if the following two conditions are

i. the right to relief alleged to exist in each plaintiff arises out of the
same act or transaction; and
ii. the case is of such a character that, if such persons brought separate
suits, any common questions of law or fact would arise.

The word "and" between clauses (a) and (b) makes it clear that both the
above conditions should be fulfilled." The primary object of Rule 1 is to
avoid multiplicity of proceedings and unnecessary expenses."

Joinder of defendants: Rule 3

It states that all persons may be joined in one suit as defendants if the
following two conditions are satisfied:
i. the right to relief alleged to exist against them arises out of the same
act or transaction; and
 ii. the case is of such a character that, if separate suits were brought
against such persons, any common question of law or fact would
arise."

No Joinder if Delay is caused – Rule 2 & 3A

R.2: Power of Court to order separate trials- In case the Court finds
that any joinder of plaintiffs may embarrass or delay the trial in the suit,
the court may allow the plaintiffs to elect either to continue or seek
separate trials or may itself suo motu order separate trials or may even
make such order as may be expedient.
R.3A: Power to order separate trials where joinder of defendants may
embarrass or delay trial- The Court may order separate trials or make
such other order as may be expedient in the interest of justice where it
appears to it that the joinder of defendants may embarrass or delay the trail
of the suit.

Necessary and Proper Parties

There is an essential distinction between a necessary party and a proper
party to a suit.
 A necessary party is one whose presence is indispensable to the
constitution of the suit, against whom the relief is sought and
without whom no effective order can be passed.
 A proper party is one in whose absence an effective order can be
passed, but whose presence is necessary for a complete and final
decision on the question involved in the proceeding.
  In other words, in absence of a necessary party no decree can be
passed, while in absence of a proper party a decree can be passed it
relates to the parties before the court. His presence, however, enables
the court to adjudicate more "effectually and completely","
Two rests have been laid down for determining the question whether
whether particular party is a necessary party to a proceeding."
 There must be a right to some relief against such party in respect of
the matter involved in the proceeding in question; and
 It should not be possible to pass an effective decree in absence of
such a party,
Examples
 in a suit for partition, all sharers are necessary parties.
 in an action against selection and appointment by an authority,
candidates who are selected and appointed are directly affected and,
therefore, they are necessary parties.
 a subtenant is only a proper party in a suit for possession by the
landlord against his tenant.
 grandsons are proper parties to a suit for partition by sons against
their father.
 a local authority for whose benefit land is sought to be acquired by
the Government is a proper party in land acquisition proceedings.

Non-joinder or misjoinder of parties: Rule 9

non-joinder - Where a person, who is a necessary or proper party to a suit
has not been joined as a party to the suit, it is a case of non-joinder.
Misjoinder of parties - Conversely, if two or more persons are joined as
plaintiffs or defendants in one suit and they are neither necessary nor
proper parties, it is a case of misjoinder of parties.

 The general rule is that a suit cannot be dismissed only on the

ground of non-joinder or misjoinder of parties." Nor a decree passed
by a competent court on merits will be set aside on the ground of
misdescription of the defendant."
 However, this rule does not apply in case of non-joinder of a
necessary party.

Jagan nath Vs Jaswant singh If the person who is likely to be affected by

the decree is not joined as a party in the suit or appeal, the suit or appeal is
liable to be dismissed on that ground alone.
B. Prabhakar Rao v. State of A.P, where all the affected persons had not
been joined as parties to the petition, and some of them only were joined,
the Supreme Court took the view that the interests of the persons who were
not joined as parties were identical with those persons who were before the
court and were sufficiently and well represented and, therefore, the
petition was not liable to be dismissed on that ground.

Objections as to non-joinder or misjoinder of parties: Rule 13

 All objections on the ground of non-joinder or misjoinder of parties
must be taken at the earliest opportunity, otherwise they will be
deemed to have been waived.
 But if the objection as to non-joinder of necessary party has been
taken by the defendant at the earliest stage and the plaintiff fails to
join or declines to add the necessary party, he cannot subsequently
be allowed in appeal to rectify the error by applying for amendment.
It has been held by the Supreme Court that where the plaintiff persists in
not impleading a necessary party in spite of objection, the consequences of
non-joinder may follow.

Striking out, adding or substituting parties: Rule 10

Adding or substituting plaintiffs:
If after the filing of the suit, the plaintiff discovers that he cannot get the
relief he seeks without joining some other person also as a plaintiff or
where it is found that some other person and not the original plaintiff is
entitled to the relief, as prayed for, an application for addition or
substitution of the plaintiff can be made. Such an application, however,
should be filed within a reasonable period . The power to implead a party
can also be exercised by the court suo motu.

Transposition of parties

In transposition, a person who is already on record as a plaintiff or a

defend- ant seeks his transposition from one capacity to another capacity;
i.e. from plaintiff to defendant or vice versa.
For adding or substituting plaintiffs following conditions must be fulfilled:
i. The suit has been filed in the name of wrong plaintiff
ii. Such mistake must be bona fide;
iii. The substitution or addition of the plaintiff is necessary for
the determination of the real matter in dispute.
Since primary object of Order 1 Rule 10 of the Code is to avoid
multiplicity of proceedings, there is no reason why the doctrine of addition
or striking out parties does not apply to transferring the parties from one
side to the other side. A court can, therefore, order transposition of parties
in an appropriate
case. This can be done either on an application by a party or suo motu."

Representative Suit :- Rule 8

Rule 8 deals with the representative suit which enables filing of a single
suit on behalf of other persons interested in subject-matter of the suit.
Thus, it is a rule of convenience enacted to avoid multiplicity of
proceedings. General rule of litigation is that all person interested in a suit
must be joined as parties to it. Order I Rule 8 provides an exception to this
rule.

 When there are numerous person either as plaintiff or defendant

having the same interest in one suit, then one of them may file or
defend in a suit with the permission of the court, it is called
Representative Suit.
 In another words, A suit by one or more persons under the rule on
behalf of themselves and others having the same interest in the suit
is called a Representative Suit.

Object: Object of this provision is to save time and expense, avoid

multiplicity of suits and prevent harassment of parties. It is merely an
enabling provision. It does not compel an individual to represent body of
persons.
For the rule to apply, the following conditions must be fulfilled:
1. The person must be numerous.
2. There must be same interest or community of interest in all such
persons.
3. The necessary permission of the court must have been obtained.
4. Notice to all the persons interested in the suit must be given at the
expense of plaintiff.

Notice: Since the judgement in a representative suit operates as a res

judicata and binds all the parties so represented [See Rule 8 (6) read with
Section 11 Explanation VI], it is therefore necessary that notice shall be
given to all such persons otherwise decree will not bind them. Such notice
can be made by personal service or if not so practicable, by public
advertisement [Order I Rule 8(2)]. It is the duty of the court to see that
proper notices are issued which are sufficient to provide information to the
person interested in the suit.
Who may institute Representative suit: A representative suit is one that
is filed by one or more persons on behalf of themselves and others having
same interest in the suit.
 Order I Rule 8(3) provides that a person may also apply to be added
as a party after such suit is instituted in a court.
 Order I Rule 8(5) further provides that persons suing or defending
must proceed with due diligence otherwise they will be removed as a
party from such suit.
  Order I Rule 8(4)- Abandonment or compromise: No abandonment
or withdrawal or compromise can be made in a representative suit
unless
i. the court has given notice to all persons interested in
the suit ; and
ii. The court has granted leave to compromise such suit
The Supreme Court in Aliyathammuda Beethathebiyyappura Pookoya
v. Pattakal Cheriyakoya held that in order to compromise a
representative suit, it is necessary to obtain leave of the court. Before the
grant of leave, the court has to give notice in such manner as it may think
fit to such persons as may it appear to be interested in the suit.
Representative Suits will be binding on all persons so represented in the
suit. It does not apply in writ proceedings.

Rule 8A:- Power of Court to permit a body of persons to present

opinion or to take part in the proceedings- This provision was inserted
by the Amending Act of 1976. It provides that if during the trial of a suit,
it appears to the court that a person or body of persons is interested in any
question of law which is directly and substantially in issue in the suit, the
court may permit the person to present his opinion on that question of law,
if such permission is necessary in the public interest.
Other Provisions
Rule 10A:- Power of Court to request any pleader to address it- If a
party is not represented by any pleader and is having an interest in the suit
or proceeding which may be affected by the court’s decision, then the
court may request any pleader to address it as to any interest which is
likely to be affected by its decision on any matter in the issue.
Rule 11:- Conduct of Suit- The Court may give the conduct of a Suit to
such persons as it deems proper.
Rule 12:- Appearance of one of several plaintiffs or defendant for
others- If there are more than one plaintiff or defendant, then all of them
may authorise one or few of them to appear, plead or act for all of them in
the suit or proceedings concern. Such authority must be in writing and
signed by the party giving it and must be filed in the court.
General principles
From the relevant provision of the Code and various decisions of the Apex
Court, the following principles regarding parties to suit emerge:
1. A question of joinder of parties is a matter of procedure and not of
substantive right.

2. The Code of Civil Procedure confers very wide and extensive

discretionary powers on a court in the matter of joinder of parties.

3. The provisions relating to joinder of parties, therefore, should be

construed liberally.
4. A plaintiff is a dominus litis and has a right to choose his
adversary against whom he wants to fight and from whom he seeks
relief. It is not province of a court of law to interfere with that right.

5. But it is also the duty of the court to do justice. And to achieve

that end, the court may add, delete, substitute or transpose any party
not- withstanding objection of the plaintiff.

6. No person can be joined as plaintiff without his consent.

 7. An order of addition, deletion, substitution or transposition of a
party can be made at any stage of the suit irrespective of the law of
limitation. Such an order can be passed on such terms as the court
deems fit.

8. An order of addition, deletion, substitution or transposition can be

made either on an application by a party or by a court suo motu.

9. Where a defendant is added, the plaint should be amended.

10. Objection as to misjoinder or non-joinder of parties should be

taken
at the earliest possible opportunity.

FRAME OF SUIT: ORDER II

Order II Rule 1 : Frame of Suit :- provides for the comprehensiveness
of a suit by providing that the plaintiff must frame i.e. draft his plaint in
such a way that it includes all the grounds for final decision upon the
subject matter in dispute so that there are no further litigation on the same
cause of action.
Order II Rule 2- Suits to include the whole claim :- : deals with the
splitting of claims which provides that primarily in conformity with Rule 1
the plaintiff must include all the claims he has against the defendant.
 Plaintiff may relinquish any part of the claim in order to bring the
suit within the jurisdiction of a particular court.
  If the plaintiff omits to claim or intentionally relinquishes any
portion of his claim, then he shall be barred to bring any fresh suit in
respect of omitted or relinquished claim (this provision applies for
every single claim). Once you have waived your right to claim, then
you cannot claim it. Order II Rule 2 applies to both the parties and
applies where the earlier suits has been decided on merits.
 The purpose of this rule is to avoid multiplicity of suits and to
avoid further litigation in same cause of action. It says further if
there is a single cause of action then all claims related to it should be
claimed in one suit. So cause of action gives rise to certain reliefs
and claims.

Cause of action

Claims Reliefs
Omits or relinquishes Omits/
Relinquishes
Bar on Plaintiff to claim later on (Sub-Rule (2) With the leave of court (Can
claim)
Without the leave of court (cannot claim)
Sub-rule 3 of Rule 3 of Order II:- Explicating of claim is not allowed but
explicating of relief is allowed
Joinder of cause of action
One of the essential elements of a suit is cause of action which is a bundle
of rights which the plaintiff seeks to prove in order to obtain judgement in
his favour. Rule 3 to 6 of Order II deals with joinder of cause of action in
one suit in certain circumstances where:
 The cause of action arises from the same act or transaction, and
 Common question of law or fact must have been involved.

Rule 3: Joinder of cause of action- This rule enables any plaintiff to join
several cause of actions in single suit when these cause of actions are
against the same defendant. Further it provides that for the purpose of
assessing the pecuniary jurisdiction in such suit the aggregate of the value
of subject matter involved must be taken into consideration.
Rule 4: Only certain claims to be joined for recovery of immovable
property- This rule provides for the instances in which certain cause of
action may be joined without the leave of the court in a suit for recovery of
immovable property, i.e.
i. Claims for mesne profits or for arrears of rent,
ii. Claims for breach of contract,
iii. Claim in which relief is based on same cause of action,
iv. In a suit for foreclosure or redemotion, a claim for possession
of immovable property.

In other suits no cause of action shall be joined without the leave of the
court.
Rule 5: Claims by or against executor, administrator or heir- If there is
a claim by or against the administrator, executor or heir it shall not be
joined with the claims by or against him personally, unless the claims are
with respect to the estate in which such person are interested.

Rule 6: Power of court to order separate trials- If there are joinder of

several cause of actions and these joinders embarrass or delay the trail, the
court may order for a separate trial.

Rule 7: Objection as to misjoinder: Objection as to misjoinder shall be

raised at the earliest possible opportunity. In cases, where issues are settled
then it shall be raised at or before such settlement unless the ground of
such objection has subsequently arisen. If such objection has not been
raised then it shall be deemed to have been waived.

Multifariousness: If, in a suit, two or more defendants have been joined

against whom the causes of action are separate and therefore, they are not
jointly liable to the plaintiff in respect of those cause of action and the
right to relief claimed is not based on the same act or transaction or where
common question of fact or law are not involved, the suit will be bad for
misjoinder of parties and cause of action. It is called as multifariousness.
The objection against such misjoinder shall be raised at the earliest
possible opportunity otherwise it shall be deemed to have been waived
unless it affects merits of the case or jurisdiction of the court. [Order II
Rule 7 read with Section 99 & 99 A]

 Pleading:

o Fundamental rules of pleadings

 o Plaint and Written Statement

o Return and rejection of plaint

o Defenses

o Set off- Counter claim;

Fundamental rules of pleadings - Order VI

Plead + Proof = Relief
What you pleaded should be proved
Introduction :
Order 6 deals with pleadings in general.
 Rule 1 defines pleading, while
 Rule 2 lays down the fundamental principles of pleadings.
 Rules 3 to 13 require the parties to supply necessary particulars.
 Rules 14 and 15 provide for signing and verification of pleadings.
 Rule 16 empowers a court to strike out unnecessary pleadings.
 Rules 17 and 18 contain provisions relating to amendment of pleadings.
RULE 1: PLEADING:
"Pleading" is defined as plaint or written statement. "Pleadings are statements in
writing drawn up and filed by each to a case, stating what his contentions will
be at the trial and giving all such details as his opponent needs to know in order
to prepare his case in answer."

Karnataka Civil Rules of Practice :- Section 2(2) "Pleadings" shall include

plaints, written statements, memoranda of appeals, cross-objections, original
petitions, applications, counter statements, replies, rejoinders and every
statement setting out the case of a party in the matter to which the pleadings
relate.
OBJECT
 The whole object of pleadings is to bring parties to definite issues and to
diminish expense and delay and to prevent surprise at the hearing.
 A party is entitled to know the case of his opponent so that he can meet it.
 In other words, the sole object of pleadings is to ascertain the real
disputes between the parties, to narrow down the area of conflict and to
see where the two

RULE 2: BASIC RULES OF PLEADINGS

Sub-rule (1) of Rule 2 lays down the fundamental principles of pleadings. It
reads as under:

2(x). Every pleading shall contain, and contain only a statement in a concise
form of the material facts on which the party pleading relies for his claim or
defence, as the case may be, but not the evidence by which they are to be
proved.
On analysis, the following general principles emerge:
i. Pleadings should state facts and not law;
ii. The facts stated should be material facts;
iii. Pleadings should not state the evidence; and
iv. The facts should be stated in a concise form.

Pleadings should state facts and not law :-

Every pleading must contain only material facts on which the party pleading
relies i.e. unnecessary facts having no bearing upon the cause of action must not
be stated It is for the court to apply the law to the facts pleaded. Thus, existence
of any custom or usage is question of fact and it must be pleaded but a plea
about maintainability of suit raises question of law and need not be pleaded
Material facts
The facts stated should be material facts
The second principle of pleadings is that they should contain a statement of
material facts and material facts only. The expression "material facts" means all
facts upon which the plaintiff's cause of action or the defendant's defence
depends, or, in other words, all those facts which must be proved in order to
establish the plain- tiff's right to relief claimed in the plaint or the defendant's
defence in the written statement.

Facts and not evidence

The third principle of pleadings is that the evidence of facts, as distinguished
from the facts themselves, need not be pleaded. In other words, the pleadings
should contain a statement of material facts on which the party relies but not the
evidence by which those facts are to be proved.

Concise form
The fourth and last general principal of pleadings is that the pleadings should be
drafted with sufficient brevity and precision. The pleading must be precise,
specific and unambiguous.
 The words "in a concise form" are definitely suggestive of the fact that
brevity should be adhered to while drafting pleadings.
 Of course, brevity should not be at the cost of excluding necessary facts.
That all such material facts must be stated in concise form i.e. in brief and to the
point,
Rule 2 (2) : every pleading shall be divided into paragraphs, numbers
consecutively and every al legations should be contained in separate
paragraphs.
Rule 2 (3): Dates, sums and numbers should be expressed in figures as well as
in words

Rule 3- Form of Pleading : The Code also provides the form of pleading in
Appendix A of the Code.

Rule4-Particulars to be given where necessary :- Wherever

misrepresentation, fraud, breach of trust, wilful default or undue influence are
pleaded in the pleadings, particulars with dates and items should be stated.
What particulars are to be set out in the pleadings must depend upon the facts of
each case. As a general rule, so much certainty and particularity should be
insisted upon as is reasonable, having regard to the circumstances and the nature
of the acts.
Rule 6: Condition Precedent- Any condition precedent, the performance or
occurrence of which is intended to be contested, shall be distinctly specified in
his pleading by the plaintiff or defendant, as the case may be; and, subject
thereto, an averment of the performance or occurrence of all conditions
precedent necessary for the case of the plaintiff or defendant shall be implied in
his pleading.

The performance of a condition precedent need not be pleaded since is implied

in the pleadings. Non-performance of a condition precedent, however, must be
specifically and expressly pleaded."

Rule 7: Departure- No subsequent pleading shall contain any new ground of

claim or contain any inconsistent fact to the previous pleading except by way of
amendment under Rule 17.
Rule 8: Denial of Contract- It provides that, a bare denial of a contract alleged
by the opposite party shall be construed. Denial of facts of contract and the
legality or sufficiency in law of such a contract must be specifically denied.
Rule 9: Effect of document to be stated- Wherever the contents of any
document are material, it shall be sufficient in any pleading to state the effect
thereof as briefly as possible, without setting out the whole or any part thereof,
unless the precise words of the document or any part thereof are material.

Rule 10: Malice, Knowledge, etc- Wherever it is material to allege malice,

fraudulent intention, knowledge or other condition of the 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.

Rule 11: Notice- Wherever it is material to allege notice to any person of any
fact, matter or thing, it shall be sufficient to allege such notice as a fact, unless
the form or the precise terms of such notice, or the circumstances from which
such notice is to be inferred are material.

Rule 12 : Implied contract or relation : Implied contracts or relations between

persons may be alleged a fact, and the series of letters, conversations and the
circumstances from which they are to be inferred should be pleaded generally
Rule 13- Presumption of Law : Facts which the law presumes in favour of a
party or as to which the burden of proof lies upon the other side need not be
pleaded.
 Ex : - Section 118 & 119 of NI Act – holder of cheque presumed to
be owner of the cheque.
 Hindu joint family property

Rule 14: Pleading to be signed-

This rule talks about the requirement of signature so as to take the responsibility
of the facts being stated ny the litigant in his pleading. Pleading shall be signed
by the party (litigant) or by a duly authorized agent, who is authorized by the
party to sign as such. The pleading shall also be signed by the pleader of the
party, if engaged.
Rule 14A: Address for service of notice- This rule, requires for the mention of
the addresses of the parties in the pleadings and other formalities and actions
that need to be taken by the parties during the entire suit.
 It provides that, the address be called a registered address and its change
must be duly given notice of, as the summons or any other process will
be affected upon such addressee.

 (5) Where the registered address of a party is discovered by the court to

be incomplete, false or fictitious, the court may, either on its own motion,
or on the application of any party, order—
o (a) in case where such registered address was furnished by a
plaintiff, stay of the suit, or
o (b) in case where such registered address was furnished by a
defendant, his defence be struck out and he be placed in the same
position as if he had not put up any defence.

Rule 15: Verification of pleadings- Every pleading when writing and signed as
required, must be verified at the foot of the plaint or written statement i.e. after
the signature of the party, and if there are more than one party then it must be
verified by any one of the parties.
 Furthermore, the rules provide for, the manner in which the verification
shall be written i.e.,
 It shall specify by paragraph and numbers of the pleadings, of
which the party knew and of which it has reason to believe on the
information received, and
  It must also state the date and the place on which the signature is
placed for verification.
 Another important requirement of the pleadings is that it must be duly
supported by an affidavit of the person verifying.

Consequences of not following these Rules of Pleading :- Rule 16,17 & 18

Rule 16: Striking out pleadings- The power provided under this rule may be
exercised by the court either suo motu or on the application of any of the parties.
The striking out here means that the paragraphs will not read as the part of the
pleadings and thus no evidence shall be given to its proof. This striking out may
be ordered at any stage of the proceedings.
The court will allow striking out or amending certain matters in any pleading
which are as follows
i. Which may be unnecessary, scandalous, frivolous or vexatious, or
ii. Which may tend to prejudice, embarrass or delay the fair trial or
iii. otherwise an abuse of the process of the court.

This is also called a compulsory amendment. However, it is an exception to

normal practice that a court cannot direct parties as to how they should prepare
their pleadings. The power to strike out pleadings is extraordinary in nature and
must be exercised by the court sparingly and with extreme care, caution and
circumspection

Rule 17 - Amendment Of Pleadings : According to this rule, the court may

allow any party to a suit to amend his pleading as may be just for the purpose of
determining the real question in dispute between the parties. This power is
discretionary which must be exercised in a sound manner.
Before allowing an amendment a court should consider the following four
points:
1. Interest of justice
 2. Determination of real question in controversy between the parties. 3.
Necessary to prevent multiplicity of suits.
4. Party exercise due diligence
Above consideration has to be taken into account while deciding the question of
amendment of pleading.
 There was an amendment in C.P.C. which has been enforced in 2002 - On
this point, Proviso to Rule 17 itself mention that the court should not
allow amendment after the commencement of trial unless it comes to the
conclusion that despite due diligence, the matter could not have been
raised by the party before such commencement

Rule 18: Failure to amend after order- Where a pleader after obtaining leave
to amend does not amend his pleading within the time specified or within 14
days (when no time is specified), he shall not be permitted after such time to
amend his pleading unless a time is extended by the court, in regards to the facts
and circumstances of the case.

Plaint – Order VII

Introduction
The term Plaint has not been defined in the Code. However, it can be defined as
a statement of claim by presentation of which the suit is instituted. It is pleading
of the plaintiff. Order VII lays down rules relating to plaint. Rules 1-8 of Order
VII deals with particular required in a plaint.
Meaning: Plaint means a statement in writing of a cause of action in which the
relief is claimed is set out in detail or a document by presentation of which a
suit is to be instituted.
Rule 1 of Order VII contents that a plaint must contain certain particulars
required to be stated in the plaint:
 1. Name of the court (For e.g. in the Matter of Civil Judge Junior Division)
in which the matter is to be tried [Rule 1(a)],
2. The name, description and place of residence of plaintiff [Rule 1(b)],
3. The name, description and place of residence of defendant [Rule 1(c)],
4. The fact of any of the party being a minor [Rule 1(d)],
5. The cause of action (Pleadings) [Rule 1(e)],
6. Facts showing that the court has jurisdiction [Rule 1(f)],
7. Relief claimed by the Plaintiff, simply or in alternative [Rule 1(g), 7 & 8],
8. Where the Plaintiff has allowed set-off or relinquished a portion of his
claim, the amount so relinquished [Rule 1(h)],
9. The valuation of the suit [Rule 1(i)],
The plaintiff must state in the plaint the valuation of the subject-
matter of the suit for the purposes of pecuniary jurisdiction of the
court and c fees.
 for example, in a suit for declaration or in a suit for
injunction or for possession of immovable property. In such a
case, the plaintiff should distinctly state the valuation of the
suit for the purpose of jurisdiction of the court and for the
purpose of court fees

RULE 2 – In money suit :- In a money suits, as a general rule, where the

plaintiff seeks for recovery of specific amount, the precise amount must be
stated in the plaint. For e.g. the amount claimed must not be any uncertain
numbers i.e. approx Rs. 10,000, etc. The exact amount must be stated.
However, when the plaintiff sues for mesne profits or for unsettled accounts or
for movables where the value cannot be estimated by due diligence, the
approximate amount may be claimed in the plaint
Rule 3 : Where the subject matter of the suit is immovable property :
Where the subject matter is an immovable property, a description of the
property sufficient to identify the same .
Rule 4 :- When plaintiff sues as representative:- If the suit is filed in
representative capacity, the fact showing that the plaintiff has an actual existing
interest in the subject matter and he has taken steps that may be necessary to
enable him to file such a suit.
Rule 6 - Ground of exemption from limitation law:
where the suit is barred by limitation, it is necessary for the plaintiff to
show the ground of exemption in the plaint. The court may grant
exemption on such grounds if it thinks fit. But the proviso empowers the
court to permit the plaintiff to rely on a new ground for exemption if it is
not inconsistent with the grounds mentioned in the plaint.

Rule 7: Relief to be specifically stated : Every plaint must state specifically

the relief claimed by the plaintiff either simply or in the alternative. Where the
relief is founded on separate and dis- tinct grounds, they should be so stated.
Where the plaintiff is entitled to more than one relief in respect of the same
cause of action, it is open to him to claim all or any of such reliefs. But if he
omits, except with the leave of the court, to sue for any particular relief, he will
not afterwards be allowed to sue for the relief so omitted.
The general relief usually prayed for by the plaintiff :
“The plaintiff prays for such further or other relief as the nature of the
case may required”

Rule 9: Procedure on admitting Plaint- This rule provides that in the event of
the court issuing summons to the defendant, the plaintiff will be directed to
present as many copies of the plaint as there are defendants, in the court, within
7 days of the order issuing summons. The plaintiff must also furnish the fees for
issuing such summons.
Rule 14: Production of documents on which plaintiff sues or relies- This
rule provides for certain requirements as to the documents to be a appended
along with the plaint by the plaintiff which are in his possession and for the
support of his claim and other related provisions.
Rule 16: Suits on lost negotiable instruments- This rule talks about a situation
when the suit based upon a negotiable instrument which is not found i.e. has
been lost, and on which an indemnity exists, the court may pass a decree as if
the instrument is produced before the court.
Rule 17: Production of shop book- (1) Save in so far as is otherwise provided
by the Bankers’ Books Evidence Act, 1891 (18 of 1891), where the document
on which the plaintiff sues is an entry in a shop book or other account in his
possession or power, the plaintiff shall produce the book or account at the time
of filing the plaint, together with a copy of the entry on which he relies.

Return and rejection of plaint

Return of plaint: Rules 10, 10-A, 10-B

Rule 10 : Where at any stage of the suit, the court finds that it has no
jurisdiction, either territorial or pecuniary or with regard to the subject-matter
of the suit, it will return the plaint to be presented to the proper court in which
the suit ought to have been filed. However, the court cannot dismiss the suit.

Rule 10-A prescribes the procedure to be followed by a court before the

plaint is ordered to be returned to be presented to the proper court.
The judge returning the plaint should make endorsements on it regarding
(i)the date of presentation;
(ii) the date of return;
(iii) the name of the party presenting it; and
 (iv) reasons for returning it.

When the plaint is filed in the proper court, after getting it back from the wrong
court, it cannot be said to be a continuation of the suit and the suit must be
deemed to commence when a plaint is filed in the proper court.
 Order 43 Rule 1(a)The order returning the plaint is appealable.
 Section 14 of the Limitation Act, 1963 The endorsement under
Sub-Rule 2 shall be subject to limitation i.e. if plaintiff prosecutes
bona fide in a wrong court that period shall be excluded from
limitation.

Rule 10 A: Power of court to fix a date of appearance in the court where

plaint is to be filed after its return- in the event, the defendant appears, the
court is under the duty to intimate to the plaintiff its decision before returning
the plaint. And when the plaintiff if so intimated,
 he may apply to the court to ask for the proper forum in which the suit
must be filed and also to fix the date of appearance in that court and to
give notice of such date to the defendant.
Although the plaintiff is allowed to appeal against the order of return, but in
case the application as mentioned above is filed such appeal is barred

Rule 10 B: Power of appellate court to transfer of suit to the proper Court-

In the event of filing an appeal against the order of return, if the Appellate Court
confirms such order, it may direct the plaintiff to file the plaint in the proper
court, subject to limitation and may also fix a date of appearance before such
court (the court to which it is sent need not issue fresh summons unless
required).
In ONGC v. Modern Construction Co. the Supreme Court held that when a
plaint is filed in the proper court after getting returned from the wrong court, it
cannot be said to be said to be a continuation of the suit. The suit must deemed
to commence when the plaint is filed in the proper court.

Rejection of plaint: Rule 11, 12 & 13 :

This provision is mandatory in nature." If any of the grounds specified in
clauses (a) to (e) are made out, court is bound to reject the plaint. The plaint will
be rejected in the following cases:"
a. Non-disclosure of cause of action- If the plaint does not disclose
any cause of action, the court will reject it. The court must come to
the conclusion that even if the allegations set out in the plaint are
proved, the plaintiff would not be entitled to relief.
b. Undervaluation of the relief claimed and failure to correct after
direction.
c. Insufficiency of stamp paper and if it is not corrected within
given time.
d. Suit is barred by any law including law of limitation. But if
question of limitation is connected with the merits of the case, it
will be decided with other issues
e. It is not filed in duplicate. It means that the plaint has to be filed
in duplicate otherwise it will be rejected. Even Order IV Rule 1
clearly indicates that for institution of suits the plaint has to be filed
in duplicate.
f. Plaintiff fails to present requisite copies of the plaint with
summons as required by Rule 9. It means the plaintiff is under
obligation to present copies of plaint for ach defendants and
requisite fees for summons within 7 days.
It must be noted here that under Rule 11(b) and (c) there is no automatic
rejection of plaint. If the court comes to a conclusion that relief claim is
undervalued or plaint is insufficiently stamped then the court is required to give
sufficient time to the plaintiff to correct the valuation and deposit the requisite
court fee. If upon giving sufficient time the plaintiff fails to correct the same
then the power under these rules is to be exercised.

This rejection can be done at any stage before the conclusion of trial, and the
ground on which it should be rejected must be considered by the simple reading
of the plaint only and not on the basis of allegations made by the defendant in
his written statement and not also on the basis of application for rejection.

Rule 12: Procedure on rejecting Plaint- Where a Plaint is rejected the Judge
shall record an order to that effect with the reasons for such order.

Rule 13: Where rejection of plaint does not preclude presentation of fresh
plaint- The rule provides for the consequence or a remedy for the order of
rejection, wherein the plaintiff is allowed to institute a fresh plaint in respect of
the same cause of action in the proper court subject to limitation. Therefore,
although being a decree, Res-Judicata does not apply on such orders. Thus the
rejection of plaint being a deemed decree, the plaintiff has two remedies in case
of rejection of plaint which are as follows
a) It is a decree and thus appealable under Order 41.
b) Plaintiff may bring a fresh suit in respect of same cause of action

Institution of suits - Sections. 26, O.4

Section 26. Institution of suits. — 1 [(1)] Every suit shall be instituted by the
presentation of a plaint or in such other manner as may be prescribed. 2 [(2) In
every plaint, facts shall be proved by affidavit.] *[Provided that such an
affidavit shall be in the form and manner as prescribed under Order VI of Rule
15A.]

ORDER IV Institution of suits

1. Suit to be commenced by plaint.—(1) Every suit shall be instituted by
presenting plaint in duplicate to the Court] or such officer as it appoints in this
behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so
far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with
the requirements specified in sub-rules (1) and (2)
2. Register of suits.—The Court shall cause the particulars of every suit to be
entered in a book to be kept for the purpose and called the register of civil suits.
Such entries shall be numbered in every year according to the order in which
the plaints are admitted.

Section 26 and Order IV provides for institution of suits. Section 26 lays down
that every suit shall be instituted by the presentation of a plaint induplicate or in
any other manner prescribed by the Code of Civil Procedure, to the court or
such officer appointed in this behalf and the facts stated therein must be
supported by an affidavit. This section must be read with Order IV, VI & VII of
the first schedule.

Summons - Sections. 27, 28, 31 and O.5

Introduction:
After the plaint is filed, the summon is issued by the court to appear in the court
to defend it. The intimation which is sent to the other party (defendant) is called
summons. The provision related to summons are given in Section 27-32 and
Order V of CPC.
Summons is an authoritative call from the court to attend the court at a specified
place and at a specified time. The summons as contemplated in Rule 1 is for the
attendance of the defendant. It says that once a plaint is admitted the court is
required to send the notice of such admission to the defendant and then for the
purpose of his appearance and to answer (reply) the allegations made against
him in the plaint.
Section 27: Summons to Defendants : Section 27 of CPC stipulates that where
a suit has been duly instituted by filing a plaint, the first duty of the court is to
issue summons calling on the defendant to appear and answer the claim and
such summons may be served in a manner prescribed in the rules mentioned in
Order V and on such day not beyond 30 days from the date of the institution of
the suit.
Section 28: Service of summons where defendant resides in another state :
If the summons to be served in an another state must be sent for service through
the court of that state and it will so be served according to the rules in force in
the state in which it is sent to. The court to which it is sent must serve it as it is
issued by that court and return it to the court issuing it along with the
proceedings therein.
Section 29: Service of foreign summonses
Section 29 provides for the situation when any of the following courts:
1. Civil or Revenue court to which Civil Procedure Code does not apply.
2. Civil or Revenue court established by the authority of Central
Government outside India.
3. Civil or Revenue court outside India to which this section would apply.
has issued certain summons and is intended to be served in the territory to
which Civil Procedure Code applies. It provides that it may be sent to the courts
to which Civil Procedure Code applies and may be severed by them as if it was
issued by such courts.
Order V Rule 2 talks about that when summon is to be sent then it is necessary
to annexed a copy of plaint with it.
Order V Rule 3: Court may order defendant or plaintiff to appear in person:
The Court shall order the defendant and the plaintiff to appear on the same day
as specified, in person, if it is so required.
Order V Rule 4: No party to be ordered to appear in person unless resident
within local limits No party will be ordered to appear personally unless
1. He resides within local limits of courts’ jurisdiction.
2. Where he resides within 50 miles from the court-house, or
3. Beyond such jurisdiction but within 200 miles from the court and
where 5/6th distance can be covered by Railways or steamers or other public
conveyance.
There are certain provisions where there is an exemption from personal
appearance, such as
1. Section 132, in case of certain women like Pardanashin lady,
2. Section 133, in case of other person like President, Vice-President, etc.
Order V Rule 5: Summons to be either to settle issues or for final disposal
The summons may be issued for settlement of issues or for final disposal of the
suit and the court shall at the time of issuing the summons specify for what
purpose summons are being issued and it must contain a direction accordingly.
The Court of Small Causes shall issue summons for final disposal only.
Order V Rule 6: Fixing day for appearance of defendant: The following
factors should be looked into while fixing the date for appearance
1. The current business day of the court,
2. The place of residence of the defendant,
3. Time necessary for service of summons,
4. Sufficient time to enable defendant to prepare his defence.

Order V Rule 7: Summons to order defendant to produce documents relied

on by him : It shall be ordered to the defendant in the summons to produce all
the document or copies thereof specified in Order VIII Rule 1 A to produce on
which he intends to rely in his support.
Rule 8: On issue of summons for final disposal, defendant to be directed to
produce his witnesses: In the summons for final disposal of the suit the
defendant shall be directed to produce all the witness upon whose evidence he
relies for his defence at the day fixed for appearance.

Mode of service of summons

 1. Service of court - Rule 9
 2. Service by plaintiff (Dasti Summons) - Rule 9A
 3. Personal or Direct Service -Rule 10-16, 18
 4. Substituted Service Rule 17, 19-20
o (i) without the order of the court
o (ii) with the order of the court.
 5. Service by Post.

Rule 10: Mode of Service: Service of the summons shall be made by

delivering or tendering a copy thereof signed by the judge or such officer as he
appoints in this behalf, and sealed with the seal of the court.
Rule 11: Service on several defendants- Where there are two or more
defendants, service shall be made on each of them.
Rule 9: Delivery of summons by Court- This rule provides for the manner in
which the summons must be served, that if the defendant or his agent is a
resident within the jurisdiction of the court, such summons shall be served
either by officer of the court known as process server or bailiff or by such
courier services as are approved by the court.
Furthermore Sub-Rule 3 provides for the manner in which the summons may
be served.
The service of summons may be made by delivering or transmitting a copy
to the defendant or his duly authorised agent by:
(a) Registered Post acknowledgement due, or
(b) Speed Post or courier service approved by the High Court or the
District
Court, or
(c) Any other means of transmission like fax message or electronic mail
service, etc.
 The service of summons under this sub-rule 3 shall be made on the
expenses of the plaintiff.
 (4) If the defendant is residing out of the jurisdiction of the court sending
summons then such summons shall be served according to sub-rule 3
except by registered post acknowledgement due and provisions of rule 21
does not apply.
 (5)Where the summons if returned back to the court with the endorsement
that the defendant or his agent refused to accept the summons when
tendered or transmitted to him, the court shall declare that the summons
had been duly served on the defendant.
 In the following cases the court may declare deemed service of summons-
 (a) The refusal or non-acceptance by the defendant,
 (b) Where the summons was properly addressed, prepared and duly
sent by registered post or acknowledgement due and having been
lost or mislaid and wasn’t received by the court within 30 days
from the date of issue of summons.
 (6)The High Court or the District Judge shall prepare the list of
courier services.
Rule 9A: Summons given to the plaintiff for service on the application of the
plaintiff’s is allowed to served the summons personally to the defendant. Such
summons must be sealed and signed.
(3) The plaintiff must take the acknowledgement from the defendant and shall
endorse a return by stating the time and manner of service of original summons.
(4) Such summons may be served by the court by a re-issue and in a normal
manner. These summon are known as Dasti Summons.

Personal or Direct Service [Rule 10-16, 18]

Rule 12: Service to be on defendant in person when practicable, or on his
agent- The summons must be served to the defendant in person or to his
authorised agent.

Rule 13: Service on agent by whom defendant carries on business- When

the suit relates to any business or work and is against a person not resident
within the jurisdiction of the court issuing summons, such summons may be
served upon any manager or agent who personally carries on such business or
work and is within the local limits of the court.

Rule 14: Service on agent in charge in suits for immovable property- In a

suit to obtain a relief with respect to an immovable property or for suit for
compensation over such property, it would be sufficient that the summons is
served upon the agent who is in charge of the property.

Rule 15: Where service may be on an adult member of defendant’s family-

In cases where the summons cannot be served due to absence of defendant for a
reasonable time and the agent also is not available to receive summons, then
such service may be made to an adult member residing with the defendant. It
can be served both on male or female but only on adult member of the family.
Explanation :-In such cases a servant is not considered the family member of
the defendant. Also when adult female members of defendants refused to
receive suit summons, a conclusion can be drawn that summons are served on
defendants

Rule 16: Person served to sign acknowledgement- The serving officer shall
require the signature of the person accepting the summons to an
acknowledgement of the service endorsed on the original summons.

Rule 18: Endorsement of time and manner of service- The serving officer in
all cases where the summons has been served under Rule 16, shall endorse or
annex on the original a return stating the time and manner of service and name
or address of the person identifying the person or witnessing the delivery.

Substituted Service [Rule 17, 19-20]

Substituted service means the service of summons by a mode which is
substituted for the ordinary mode of service of summons. For ordering
substituted service as per Order 5 Rule 20, CPC it must be shown that the
respondent/defendant is keeping out of the way for the purpose of avoiding
service or that for any other reason, the summons cannot be served in the
ordinary way.
There are two modes of substituted service of summons:
 (a) Service without the order of the court
 (b) Service with the order of the court

Rule 17 Service without the order of the court- when substituted service can
be made on the defendant without the order of the court:
i. Refusal of acknowledgement- Where the defendant or his agent refuses to
sign the acknowledgement.
 ii. Absence of defendant- Where the serving officer, after due and
reasonable diligence, cannot find the defendant who is absent from his
residence at the time of service of summons and cannot be found within a
reasonable time and
iii. there is no authorized agent nor any other person on whom such service
can be made.

When one of the above two circumstance exist, the service of summons can be
made by affixing a copy on the outer door or some other conspicuous part of the
house in which the defendant ordinarily resides or carries on business or
personally works for gain.
Procedure after such service: After affixing such copy of summons as stated
above, the serving officer shall then return the original to the court issuing
summons with a report endorsed thereon stating
(a) The fact about affixing the copy;
(b) The circumstances under which he did so;
(c) The name and address of the person, if any, by whom the house was
identified and in whose presence the copy was affixed.
Rule 19- Examination of Serving officer :- further provides that if the court is
satisfied, either on affidavit or examination on oath of serving officer, that the
summon is duly served, it may either declare the summons has been duly served
or may make such inquiry as it thinks fit. If provisions of Rule 19 are not
complied with, service of summons cannot be said to be in accordance with law.
The Court, may make such further enquiry in the matter as it thinks fit; and shall
either declare that the summons has been duly served or order such service as it
thinks fit .
Rule 20 - Service with the order of the court- If the court is satisfied that
there is reason to believe that defendant avoids service or for any other reasons,
the summons cannot be served in the ordinary way, in such case, the service
may be affected in the following manner:
i. By affixing a copy of summons in some conspicuous place in the court
house, and in the house in which the defendant is known to have last
resided, carried on business or personally worked for gain, or (ii) In such
other manner as it thinks fit.
ii. The court may order service of summon by advertisement in a daily
newspaper circulating in the locality in which the defendant is last known
to have resided or carried on business or personally worked for gain
iii. Rule 20(2)- Effect of substituted service of summons- provides that the
substituted service is as effective as personal service, and such defendant
shall be deemed to be duly served in accordance with law.
iv. The court shall fix a time for the appearance of defendant and give him
reasonable opportunity to appear before court

Other Provision Related To Summons:

Rule 21: Service of summons where defendant resides within
jurisdiction of another court- The service of summons outside the
jurisdiction of the court issuing, may be made in any of the aforesaid manner
provided under the rule, to the court other than the High Court in whose
jurisdiction defendant resides. Rule
22: Service within presidency-town of summons issued by courts
outside- Where a summons issued by any court established beyond the
limits of town of Calcutta, Madras and Bombay is to be served within any
such limits, it shall be sent to the Court of Small Causes within whose
jurisdiction it is to be served.
Rule 23: Duty of Court to which summons is sent- The Court to which a
summons is sent under rule 21 and rule 22 shall, upon receipt thereof,
proceed as if it had been issued by such court and shall return the summons
to the court of issue, together with the record (if any) of its proceedings with
regard thereto.
Rule 24: Service on defendant in prison- The service of summons to a
person confined in prison shall be served to the officer in charge of prison
for service on the defendant either by post or by courier service or by any
other mode of communication.
Rule 25: Service where defendant resides out of India and has no agent-
if the suit is instituted against a defendant residing outside India and he has
no agent in India, then the summon shall be sent to the defendant at the place
where he is residing i.e. in any foreign country. The summons may be sent
either by post or by courier service or by fax or by electronic mail service or
any other means provided by the High Court.
Rule 26: Service in foreign country through Political Agent or
CourtWhere the defendant is residing in a foreign country; The summons
may be sent through the Ministry of Foreign Affairs of that Foreign Country
to such political agent or court, appointed or established by Central
Government or to any court situated in that country and not established or
continued by Central Government, for being served upon the defendant by
post or otherwise.
When such political agent or court returns the summons with an
endorsement to the effect that summons has been served, such endorsement
shall be deemed to be the evidence of the service.
Rule 27: Service on civil public officer or on servant of Railway
Company or local authority
The service of summons on the defendant who is a public servant (except
mentioned in rule 28) or the servant of a railway company or local authority
may be served to the head of the office in which he is employed, together
with a copy of it to be retained by the defendant.
Rule 28: Service on soldiers, sailor or airmen- Where the defendant is a
 soldier, sailor or airman, the court shall send the summons for service to his
commanding officer together with a copy to be retained by the defendant.
Rule 29: Duty of person to whom summons is delivered or sent for
service- (1) Where a summons is delivered or sent to any person for service
under rule 24, rule 27 or rule 28, such person shall be bound to serve it if
possible, and to return it under his signature, with the written
acknowledgement of the defendant, and such signature shall be deemed to be
evidence of service.
(2) Where from any cause service is impossible, the summons shall be
returned to the court with a full statement of such cause and of the steps
taken to procure service, and such statement shall be deemed to be evidence
of non-service.
Rule 30: Substitution of letter for summons- This rule provides situation
when serving of summons does not seem to be proper, and in such situation
the court sends a letter to the defendant, who is entitled to this form of
calling due to the rank of such defendant requiring such mark of
consideration or respect. However, this does not mean that all the particulars
required in summons will not be mentioned in such letter as it will be treated
in all respects, as a summons. This letter may be sent by post or by special
messenger.

Written Statement , Set off- Counter claim

WRITTEN STATEMENT
Introduction :-
Order VIII deals with rules relating to written statement. However, it means the
pleadings of the defendant wherein defendant deals with the facts alleged in the
plaint. In it, he also pleads new facts and set up counter claim and set-off. All
the general rules of pleading mentioned in Order VI apply to written statement.
Who may file written statement :- Written statement is filed by the defendant
or his duly authorized agent. If there are several defendants a common written
statement can be filed by them. In such case it must be signed by all of them. As
far as verification is concerned, it can be verified by any one defendant.
Order VIII Rule 1 – written statement : -Time limit for filing written
statement:
 It is provides that the defendant shall within 30 days from date of
service of summons file a written statement.
 Proviso to Order VIII Rule 1states that if the defendant fails to file
written statement within a period of 30 days from date of service of
summons. He shall be allowed to file the same on such other day, but
shall not be late than 90 days- from the service of summon .

Salem Advocate Bar Association v. Union of India, the court said that
there can be discretion of the court to allow the defendant to file written
statement even after expiry of 90 days and there is no restriction in Order
VIII that after expiry of 90 days, further time cannot be extended or granted.
In this case, the Supreme Court held that court is empowered under Order
VIII Rule 10 to allow the defendant to file the written statement even after
the expiry of 90 days. Such power can only be used in exceptional
circumstances and routine order cannot be passed.
Rule 1A: Duty of defendant to produce documents upon which relief is
claimed or relied upon by him
Along with the written statement the defendant must produce the documents
upon which he relies for his defence, if the documents are in his power or
possession, and must exhibit it in the file by providing the list of such
documents specifically.
If the defendants fails to exhibits such documents along with a written
statement, he will be restrained from producing it as an evidence in his
 defence unless the court permits.
This rule does not apply to documents produced and handed for:
i. Cross examination of plaintiff’s witnesses, or
ii. ii. Refreshing the memory of witnesses, respectively.

Rule 2: New facts must be specifically pleaded- It is a general rule of

pleadings that all material facts must be pleaded in pleadings. The defendant
must state:
a) All matters which show that the suit is not maintainable, or
b) The transaction is either void or voidable in point of law, or
c) The facts showing illegality and other grounds of defence
d) Would raise issues of facts not mentioned in plaint like, fraud, limitation,
release, plyment, performance

Udhav singh Vs Madhav Rao Scindia :

If the plea is not taken, it may lead the plaintiff to believe that the defend- ant
has waived his right by not relying on that point. And the defendant will not be
entitled, as of right, to rely on any ground of defence which he has not taken in
his written statement.
Rule governing denial and deemed admissions Rule 3 to 5
Rule 3: Denial to be specific- The defendant must deny the truth of each
allegation of fact specifically of which he does not except damages. Denial
generally will not be sufficient. Therefore, it is not contemplated in the draft of
a written statement that the defendant states generally that he denies all the
allegations in the plaint, but does so specifically pointing each and every
paragraph.
Rule 4: Evasive denial- The defendant must deny an allegation by answering
the point of substance and explaining the whole of the circumstances in which
the transaction took place. Therefore the defendant must not just answer to
evade the effect of the paragraph mentioned in the plaint but must give the
answer in a way that why the statement would never affect him by telling the
circumstances that stood around the fact in the plaint.
Eg :- Thus, if it is alleged that he received a certain sum of money, it shall not
be sufficient to deny that he received that particular amount, but he must deny
that he received that sum or any part thereof, or else set out how much he
received.
Rule 5: Specific denial- Rule 5 (1)provides for situation when the law
presumes that an admission has been made i.e. when any fact in the plaint is
deemed to be admitted. The situations are:
(i) Fact not denied specifically or by necessary implication, or
(ii) Fact is stated not to be admitted in the written statement.

In other words, every allegation of fact in the plaint, not denied by the defendant
shall be taken to be admitted by the defendant.
However this Rule does not apply in the case of a person under disability.
Rule 5 (2)Exparte :- This rule further provides that, where the defendant does
not file a written statement, the court may go on to pronounce a judgement
based on the facts in the plaint without obtaining proof of such facts or may call
for proof of it. However, the court may in its discretion require any fact to be
proved except by admission reason being you cannot admit or denied at the
same time.
Section 58 of Indian Evidence Act, 1872. - the fact admitted need not be
proved. Among other things, it provides that if the facts are admitted by any rule
of pleadings in force then they are deemed to be admitted. However, its proviso
says that court may in its discretion required the fact admitted to be proved
otherwise.
Thereby if the defendant does not plead, the court shall pronounce judgement
on the basis of plaint, but the court may in its discretion require any fact to be
proved. This sub rule not applies to person under disability.
Sub-Rule 3: Court is exercising his jurisdiction under Proviso to Sub-Rule 1 &
Sub-Rule 2 shall have due regard whether the defendant could have engage a
pleader or not.
Sub-Rule 4: Judgement is pronounced under this rule, the decree shall be drawn
up in accordance with judgement and decree shall bear the date on which
judgement is pronounced.
In Balraj Taneja v. Sunil Madan, the Supreme Court held that courts should
act cautiously on the admission made in written statement. The courts should
not proceed to pass judgement merely because written statement has not been
filed. Courts should see that if the plaint contains certain disputed questions of
facts which depicts two different versions the court should require the plaintiff
to prove the case. Such a situation would be covered under ‘court may in its
discretion require any such fact to be proved’ used in Order VIII Rule 5(2) or
‘make such order in relation to suit as it thinks fit’ used in Order VIII Rule 10

SET-OFF [RULE 6]
"Set-off" means a claim set up against another. It is a cross-claim which partly
offsets the original claim. It is an extinction of debts of which two persons are
reciprocally debtors to one another by the credits of which they are reciprocally
creditors to one another. Where there are mutual debts between the plaintiff and
the defendant, one debt may be settled against the other. It is a plea in defence,
available to the defendant. By adjustment, set-off either wipes out or reduces the
plaintiff's claim in a suit for recovery of money.

Conditions
A defendant may claim a set-off, if the following conditions are satisfied:
(i) The suit must be for the recovery of money;
(ii) The sum of money must be ascertained;
 (iii) Such sum must be legally recoverable;
(iv) It must be recoverable by the defendant or by all the
defendants, if more than one;
(v) It must be recoverable by the defendant from the plaintiff or
from all the plaintiffs, if more than one;
(vi) It must not exceed the pecuniary jurisdiction of the court in
which the suit is brought;
(vii) Both the parties must fill, in the defendant's claim to set-off,
the same character as they fill in the plaintiff's suit.
EFFECTS OF SET-OFF
 When a defendant pleads set-off, he is put in position of plaintiff as
regards the amount claimed by him. So, there are two cross-suits which
are tried together and the court pronounces judgement in respect of both
of them. The failure of plaintiff in the suit does not affect the claim of a
set-off by the defendant and decree may be passed in favour of defendant
if he is able to prove his claim.
 A separate suit number, however, is not given in a set-off.
 Where the plaintiff does not appear and his suit is dismissed for default,
or he withdraws his suit or he fails to substantiate his claim at the trail
and his suit is dismissed, it does not affect the claim for a set-off by the
defendant and a decree may be passed in favour of the defendant if he is
able to prove his claim.
 Thus, it is clear that this claim has the same effect as of the plaint in a
cross-suit to enable the court to pronounce the judgement in both suits
and the rule regarding the written statement shall apply to a written
statement filed by plaintiff in answer to claim of defendant.
 It must be remembered that:
o Rule 6 is not exhaustive and only contains legal set-off.
o Legal set-off can be claimed as a matter of right.
 o The court fee is payable on claim of set-off.
o The particulars by way of set-off may be presented after the first
hearing only with the permission of the court.

Types
The law recognises two types of set-off.
(i) Legal set-off; and
(ii) Equitable set-off.
1. Legal Set-off: (Order VIII Rule 6)- This claim of set-off is based on written
statement and the court pronouncing the judgement in money suit will also
pronounce judgement on set-off.
2. Equitable set-off: [Order XX Rule 19(3)]- In contrast to legal set-off,
equitable set-off may not be for ascertained money and may not be even
recoverable. For e.g. in a suit by servant against his master for salary, the latter
can claim set-off for the loss sustained by him due to negligence of servant.

COUNTER CLAIM [ORDER VIII RULE 6A TO 6G]

Rules 6A-6G of Order VIII vide Amendment Act of 1976, which specifically
provides for setting of counter claim. t can be defined as a claim made by the
defendant against the plaintiff in the suit filed by plaintiff. It is a cause of action
in favour of defendants against the plaintiff. It is independent and separate from
plaintiff’s claim. The defendant may in addition to set-off, can also be plead by
way of a counter-claim.
Rule 6A
 Such right or claim must accrue either before or after the filing of the suit
but before filing of written statement or expiry of time limited to file
written statement. 
 The counter-claim must not exceed the pecuniary jurisdiction of the
court. [Order VIII Rule 6A. (1) Proviso]
  The counter- claim shall have the same effect as a cross-suit to enable the
court to pronounce the judgement in both suits [Rule 6A (2)].
 The plaintiff shall file the written statement to answer the claim in
counter-claim against him [Rule 6A (3)].
 The counter-claim is in the nature of cross-suit so it should satisfy all the
criteria of a suit and rules as to the plaint that he shall apply mutatis
mutandis to it. 
 The counter claim is treated as separate suit so it is deemed to be
instituted on the day on which it was filed and not on the day when
original suit was filed, so it must be filed within limitation period.
 The Court-fee is payable on counter-claim

[Rule 6B] Counter claim to be stated: - The defendant shall state, specifically
in written statement, any ground upon which he relies in support of his counter-
claim. Rule 6C]- Exclusion of counter claim: [This rule gives the plaintiff a
right to apply to the court to restrain the adjudication of the counter-claim in his
suit and that it must be raised in an independent suit.
[Rule 6D]Effect of discontinuance of suit: - The stay or dismissal of the
plaintiff’s suit does not affect the maintainability of counter claim. The counter
claim shall be proceeded with and since it is a cross suit it will be decided on its
own merits.
Rule 6E- Default of plaintiff to reply to counter-claim: Where the Plaintiff
fails to reply to a counter-claim made by defendant, a judgement may be
pronounced against such plaintiff in relation to the counter-claim or any other
order also be made.
Rule 6F- Relief to defendant where counter-claim succeeds: Where the
counter-claim or set-off is claimed in any suit and on the hearing it is found that
any balance is due to the plaintiff or the defendant, the court may give
judgement in the favour of the party entitled to such balance.
Rule 6G- Rules relating to written statement to apply: The rules relating to
written statement by a defendant shall apply to a written statement filed in
answer to a counter-claim.
Rule 7- Defence or set-off founded upon separate grounds: - The distinct
grounds of defence or set-off or counter-claim must be stated separately or
distinctly

Section 3(2)(b) of Limitation Act, 1963 stipulates that any claim by way of a
set-off or a counter-claim shall be treated as a separate suit and shall be deemed
to have been instituted
1. in the case of a set-off, on the same date as the suit in which the set-off
is pleaded.
2. in the case of a counter-claim, the date on which the counter-claim is
made in the court

Difference between Set-off & Counter-claim

Set-off Counter-claim
It is a statutory defence to a plaintiff’s It is substantially a cross action.
action.
It must be for an ascertained sum of A counter-claim need not be for
money or, if equitable set-off, arise ascertained sum of money neither it
out of same transaction. should arise out of same transaction.
It is a ground of defence to be It is a weapon of offence, a sword
plaintiff’s action, a shield which enabling a defendant to enforce a
would afford an answer to plaintiff’s claim against the plaintiff.
claim in whole or in part.
In legal set-off the amount must be The amount must be recoverable at
recoverable at the date of the suit. the date of the written statement or
the cause of action must have arose
 before the filing of written statement.

Other provisions
Rule 8- New ground of defence: Any new ground arose after the institution of
the suit or the presentation of set-off or counter claim is a written statement,
may be raised subsequently by the parties concerned.
Rule 9- Subsequent Pleading: - The general rule is that after pleading there is
no subsequent pleader but Order VIII Rule 9 says that any submission by the
parties to the court, by way of or in the nature of a pleading after plaint and
written statement will be called as a subsequent pleading. It is presented as
follows:
(i) By way of set-off or counter-claim, only with the leave of the
court, or
(ii) By way of an additional written statement.

However, the court has the power to allow a written statement or additional
written statement any time from any of the parties and the time period fix for it
is 30 days
Rule 10 Procedure when party fails to present written statement called for
by court: Where the party fails to file written statement within the period fixed
by the court under Rule 1 and Rule 9, the court shall pronounce judgement
against him or make such order as it thinks fit and a decree shall be drawn
accordingly.
In Salem Advocate Bar Association v. Union of India, it was held that the
provisions of rule 10 are discretionary and not mandator

Interest and Costs (Sections. 34, 35, 35A, B)

After Judgment and Decree

 UNIT – II
10 Marks
1. State the provisions of CPC relating to joinder of parties. What is the
effect of non-joinder of necessary parties ?
2. Explain the provisions of CPC relating to joinder of parties to the suit,
their joinder, mis-joinder, and Non- joinder. +1
3. Who may be joined as Plaintiff and Defendants ? What is the effect of
non-joinder and mis- joinder of parties. +1
4. Every suit shall include the whole claim in respect of the cause of action”
Comment with illustration.
5. Describe the provisions related to institution of suit . +1
6. Explain the fundamental rules of pleadings. when the amendment of
pleadings is permissible +1
7. Explain the general and other rules of pleading.+1
8. What are the necessary elements of the plaint ? When can it be rejected ?
Explain
9. Briefly explain the different parts of a plaint. +1 +1+1
10.State the modes of service of Summons. +1+1+1
11.Explain the essential ingredients of Summons. What are the different
mode of service of Summons to defendants? +1
12.Elucidate the essential contents of written statement +1
13.What is written statement and what it should contain.
14.What is written statement ? when set-off and counter claim be pleaded ?
15.What are costs? Explain the different types of costs awarded in civil
cases?

Short notes
1. Joinder of parties.+1
2. Misjoinder of parties.
3. Distinguish between Misjoinder and Non- Joinder of Parties.
4. Write a note on Verification of Pleadings
5. Rejection of plaint.
6. Summons
7. Written statement. +1
8. Counter claim. +1 +1
9. Set – off+1 +1
10.Set off & Counter Claim

11.Ramesh has published a book under the banner “ Oxford and Cambridge
University press. Oxford University and Cambridge University have
instituted a joint suit against Ramesh. Is the jointer of plaintiff valid.

12.Rama filed a suit against Krishna for declaration of ownership on the

property stating that he has purchases under a registered sale deed.
Subsequently he seeks to amendment the plaint claiming that the property
was granted to him by the government. Can he succeed? Discuss.

13.Ramesh has instituted a suit against Santosh, seeking possession of a

house on the ground that he has purchased the same from Santosh. Now
he wants to amend the plaint to the effect that he is entitled to the
possession of the house as a tenant. Can he succeed ?