What Points we have discussed in What Points we have discussed in previous lecturesprevious lectures

A short historical survey of the A short historical survey of the conception of civil procedure in India conception of civil procedure in India before the advent of British.before the advent of British.

Decree, Judgment & Order – Decree, Judgment & Order – Similarities & Dis-similaritiesSimilarities & Dis-similarities

Rejection of Plaint Rejection of Plaint Judgment Debtor/ Decree HolderJudgment Debtor/ Decree Holder Mesne ProfitMesne Profit Various Stages of a Civil suit. Various Stages of a Civil suit. Jurisdiction and kinds of jurisdictionJurisdiction and kinds of jurisdiction Amendment of PleadingsAmendment of Pleadings Drafting of PlaintsDrafting of Plaints Return of Plaint Return of Plaint W.S. Set off & Counter ClaimW.S. Set off & Counter Claim

Particulars added Particulars added inin a Plaint a Plaint Name of the court in which suit has to be Name of the court in which suit has to be

instituted - O7R1(a) instituted - O7R1(a) Name description & place of residence of Name description & place of residence of

plaintiff – O7R1(b)plaintiff – O7R1(b)Name description & Place of residence of Name description & Place of residence of

defendant –O7R1(c)defendant –O7R1(c)Statement about the fact that P. or D. is minor Statement about the fact that P. or D. is minor

or of unsound mind – O7R1(d)or of unsound mind – O7R1(d) Facts , cause of action and when it arose.- Facts , cause of action and when it arose.-

O7R1(e)O7R1(e)Statement about the jurisdiction of the court – Statement about the jurisdiction of the court – O7R1(f)O7R1(f)The relief claimed by the plaintiff – O7R1(g)The relief claimed by the plaintiff – O7R1(g)Statement relating to set off or relinquishment a Statement relating to set off or relinquishment a portion of his claim – with specific amount – portion of his claim – with specific amount – O7R1(h)O7R1(h)Statement of value of the subject matter – for Statement of value of the subject matter – for the purpose of jurisdiction & court fees as the purpose of jurisdiction & court fees as described in the court. O7R1(i)described in the court. O7R1(i) Plaint shall be verified Plaint shall be verified Plaint shall be affidavitedPlaint shall be affidavitedPlaint shall be filed in duplicate O7R11(e)Plaint shall be filed in duplicate O7R11(e)Production of document on which the plaintiff Production of document on which the plaintiff sue or relies -O7R14sue or relies -O7R14Relief to be specified – O7R7Relief to be specified – O7R7Procedure of admitting plaints – O7R9Procedure of admitting plaints – O7R9

PLEADING ORDER VI,VII & VIII C.P.C.PLEADING ORDER VI,VII & VIII C.P.C. Pleading means Plaint & Written statement – Pleading means Plaint & Written statement –

O6R1O6R1 Every pleading (plaint or W.S. contains)Every pleading (plaint or W.S. contains)

A statement in a concise form of the material A statement in a concise form of the material facts – O6R2(1)facts – O6R2(1)

It shall be divided in to paragraph – O6R2(2)It shall be divided in to paragraph – O6R2(2) Date, sum & Numbers – figure & words both Date, sum & Numbers – figure & words both

– O6R2(3)– O6R2(3) Form of pleading– Appendix A – O6R3Form of pleading– Appendix A – O6R3 Pleading about misrepresentation, fraud, Pleading about misrepresentation, fraud,

breach of trust, wilful default, undue breach of trust, wilful default, undue influence, condition precedent, departure, influence, condition precedent, departure, Denial of contract, notice, malice, Denial of contract, notice, malice, knowledge, implied contract or relation & knowledge, implied contract or relation & presumption of law be stated in the pleading presumption of law be stated in the pleading – O6R4 to 12– O6R4 to 12

It be signed by the party and his/ her It be signed by the party and his/ her pleader. – O6R14pleader. – O6R14

Address for service of notice - 06R14Address for service of notice - 06R14 Verification & affidavit of pleading be made – Verification & affidavit of pleading be made –

O6R15O6R15 Striking & amendment of pleading – O6R17Striking & amendment of pleading – O6R17 Failure to amend after order – O6R18Failure to amend after order – O6R18

Basic Rules of pleadingsBasic Rules of pleadings Pleading means Plaint & W.S.Pleading means Plaint & W.S.

Plaintiff’s pleading – PlaintPlaintiff’s pleading – Plaint

Defendant’s pleading – Written Defendant’s pleading – Written StatementStatement

Defendant’s pleading – in which Defendant’s pleading – in which defendant set up a claim against Plaintiff defendant set up a claim against Plaintiff with a view of offset the original claim – with a view of offset the original claim – “Set-off”“Set-off”

Defendant’s Pleading – in which Defendant’s Pleading – in which defendant made a claim against the defendant made a claim against the Plaintiff independent in nature – “Counter Plaintiff independent in nature – “Counter Claim” – It amount to filing a cross suit – Claim” – It amount to filing a cross suit – Court pronounce judgement on both Court pronounce judgement on both original Claim and the counter claim. original Claim and the counter claim.

Fundamental Principles of Pleading applicable on both Fundamental Principles of Pleading applicable on both Plaint & Written Statement (Set off & Counter Claim)Plaint & Written Statement (Set off & Counter Claim)

Pleading to state Pleading to state material factsmaterial facts and and not not evidenceevidence

Every pleading shall contain, and Every pleading shall contain, and contain only, a statement in a concise contain only, a statement in a concise form of the form of the material facts( on which material facts( on which the party pleading relies for his claim the party pleading relies for his claim or defence)or defence)

Party must not state the evidence by Party must not state the evidence by which they are to be proved. which they are to be proved.

Every pleading shall, when necessary, Every pleading shall, when necessary, be divided into paragraphs, numbered be divided into paragraphs, numbered consecutively, each allegation being, consecutively, each allegation being, so far as is convenient, contained, in a so far as is convenient, contained, in a separate paragraph. separate paragraph.

Dates, sums and numbers shall be Dates, sums and numbers shall be expressed in a pleading in figures as expressed in a pleading in figures as well as in words.well as in words.

Material Facts Material Facts All facts upon which plaintiff’s cause of All facts upon which plaintiff’s cause of

action or defendant’s defend depends.action or defendant’s defend depends. All the primary facts which must be All the primary facts which must be

proved at the trial by a party to proved at the trial by a party to established the existence of a cause of established the existence of a cause of action or his defence are material facts action or his defence are material facts – ( AIR 1976 SC 744.– ( AIR 1976 SC 744.

Facts are of two typesFacts are of two types Facts probanda – facts required to be Facts probanda – facts required to be

proved i.e. material factsproved i.e. material facts Facts probantia – the facts by means of Facts probantia – the facts by means of

which they are to be proved i.e. particular which they are to be proved i.e. particular or evidence.or evidence.

A pleading must contain fact probandaA pleading must contain fact probanda Where ever Where ever misrepresentationmisrepresentation, , fraudfraud, ,

breach of trustbreach of trust, , willful defaultwillful default or or undue undue influenceinfluence in the pleading, particulars in the pleading, particulars with dates and item should be stated. with dates and item should be stated.

AIR 1976 SC 744 ::1977(I) SCC 511, UDHAV SINGH VS. AIR 1976 SC 744 ::1977(I) SCC 511, UDHAV SINGH VS. MADHAV RAO SCINDIAMADHAV RAO SCINDIA

P. N. BHAGWATI AND R. S. SARKARIA, P. N. BHAGWATI AND R. S. SARKARIA,

The present case is related with an Election petition in which The present case is related with an Election petition in which a pleading was made in para.11 of the plaint like this :-a pleading was made in para.11 of the plaint like this :-"that, on or before 22-2-71, Shri Mohan Prasad Ojha, a "that, on or before 22-2-71, Shri Mohan Prasad Ojha, a

Congress Worker of Village Umri (Tehsil Guna) was Congress Worker of Village Umri (Tehsil Guna) was threatened at pistol point by the workers of the threatened at pistol point by the workers of the respondent with his consent, Shri Shiv Pratap Singh and respondent with his consent, Shri Shiv Pratap Singh and others of Umri threatened not to vote and canvass in others of Umri threatened not to vote and canvass in favour of the Congress candidate, Deorao Krishnarao favour of the Congress candidate, Deorao Krishnarao Jadhav and threatening with dire consequences. '‘Jadhav and threatening with dire consequences. '‘

The reply of the this para respondent states that:-The reply of the this para respondent states that:-"the allegation of the petitioner that on or before 22-2-1971 Shri "the allegation of the petitioner that on or before 22-2-1971 Shri

Mohan Prasad Ojha, a Congress Worker of the village Umri Mohan Prasad Ojha, a Congress Worker of the village Umri (Tehsil Guna) was threatened at pistol point by the workers (Tehsil Guna) was threatened at pistol point by the workers of the respondent with his consent is denied. It is also denied of the respondent with his consent is denied. It is also denied that with the consent of the respondent, Shri Shiv Pratap that with the consent of the respondent, Shri Shiv Pratap Singh and others of Umri threatened him not to vote and Singh and others of Umri threatened him not to vote and canvass in favour of the Congress Candidate Shri Deorao canvass in favour of the Congress Candidate Shri Deorao Krishnarao Jadhav and threatened him with dire Krishnarao Jadhav and threatened him with dire consequences. This para is also lacking in material consequences. This para is also lacking in material particulars as to who were the alleged workers, what was particulars as to who were the alleged workers, what was their names' their addresses, castes etc. It cannot therefore, their names' their addresses, castes etc. It cannot therefore, be enquired into. The allegation is incorrect, baseless and be enquired into. The allegation is incorrect, baseless and vague. It is also vague because particulars as to when, where vague. It is also vague because particulars as to when, where and in whose presence the alleged consent of the respondent and in whose presence the alleged consent of the respondent was given are not mentioned. ''was given are not mentioned. ''

aaHardwari Lal's case (AIR 1964 SC 1366) Hardwari Lal's case (AIR 1964 SC 1366) (supra):(supra):

Sheodhan Singh v. Mohan Lal Gautam. Sheodhan Singh v. Mohan Lal Gautam. (1969) 3 SCR 417 = (AIR 1969 SC 1024) (1969) 3 SCR 417 = (AIR 1969 SC 1024) Samant N. Balkrishna v. George Fernandez, Samant N. Balkrishna v. George Fernandez, (1969) 3 SCR 603 = (AIR 1969 SC 1201) (1969) 3 SCR 603 = (AIR 1969 SC 1201) and Hardwari Lal v. Kanwal Singh, (1972) 2 and Hardwari Lal v. Kanwal Singh, (1972) 2 SCR 742 = (AIR 1972 SC 515 ). SCR 742 = (AIR 1972 SC 515 ).

Return of Plaint – O7 Rule 10 & 10AReturn of Plaint – O7 Rule 10 & 10A

Court shall return the plaint for Court shall return the plaint for presentation before the proper court in presentation before the proper court in the following circumstances :-the following circumstances :-** lack of territorial jurisdictionlack of territorial jurisdiction** lack of pecuniary limit lack of pecuniary limit

** lack of jurisdiction relating to lack of jurisdiction relating to subject mattersubject matter

Procedure at the time of Returning Procedure at the time of Returning Procedure at the time of returning the plaint:-Procedure at the time of returning the plaint:- The Judge returning plaint shall endorce :-The Judge returning plaint shall endorce :- date of presentation date of presentation date of return date of return Name of parties presenting plaint Name of parties presenting plaint Appellate court has also power to transfer Appellate court has also power to transfer

suit to proper courtsuit to proper court Directing the court to transfer suit from one Directing the court to transfer suit from one

court to another shall not effect the power court to another shall not effect the power of parties to raise question of jurisdiction in of parties to raise question of jurisdiction in which plaint is filed to try the suit. which plaint is filed to try the suit.

Court may direct on the point of limitation. Court may direct on the point of limitation. Every such return is always subject to Every such return is always subject to provisions of limitation act.provisions of limitation act.

Rejection of PlaintRejection of Plaint O7R11 O7R11 The Plaint shall be rejected on the The Plaint shall be rejected on the

following grounds :-following grounds :- Plaint does not disclose cause of actionPlaint does not disclose cause of action When relief claimed is under-valued, on When relief claimed is under-valued, on

demand by the court to correct the demand by the court to correct the valuation within specified time the plaintiff valuation within specified time the plaintiff failed to do sofailed to do so

When relief claimed is proper valued but When relief claimed is proper valued but insufficient stamp paid on the plaint, on insufficient stamp paid on the plaint, on demand by the court the plaintiff failed to demand by the court the plaintiff failed to do so within specified time.do so within specified time.

Where from the statement in the plaint it Where from the statement in the plaint it appears that suit is barred by law.appears that suit is barred by law.

Where it is not filed in duplicate.Where it is not filed in duplicate. Where plaintiff failed to comply with the Where plaintiff failed to comply with the

provisions of Rule 9 i.e. after passing order provisions of Rule 9 i.e. after passing order for service of summon upon the for service of summon upon the defendants, the plaintiff fails to provide defendants, the plaintiff fails to provide the copies of the plaint duly stamped the copies of the plaint duly stamped within 7 days from the date of such order within 7 days from the date of such order in the office of the Civil court.in the office of the Civil court.

Procedure for rejection & Whether Procedure for rejection & Whether presentation of fresh plaint barred if presentation of fresh plaint barred if

rejected due to this reason.rejected due to this reason. Rejection of Plaint :-Rejection of Plaint :-

When a Plaint is rejected the judge shall When a Plaint is rejected the judge shall record and order to that effect record and order to that effect with the with the reasons for such order reasons for such order

Where rejection of plaint does not Where rejection of plaint does not indicate presentation of fresh suit :-indicate presentation of fresh suit :- The rejection of the plaint U/O7 R 11 The rejection of the plaint U/O7 R 11

shall not of its own force preclude the shall not of its own force preclude the plaintiff from presenting a fresh plaint plaintiff from presenting a fresh plaint in respect of the same cause of action.in respect of the same cause of action.

Defect of misjoinder of parties & misjoinder of cause Defect of misjoinder of parties & misjoinder of cause of action not a ground for rejection of plaint of action not a ground for rejection of plaint

AIR 2007 SUPREME COURT 1247 "Prem Lala Nahata. v. Chandi AIR 2007 SUPREME COURT 1247 "Prem Lala Nahata. v. Chandi Prasad Sikaria"Prasad Sikaria"

Coram : 2 S. B. SINHA AND P. K. BALASUBRAMANYAN, JJ.Coram : 2 S. B. SINHA AND P. K. BALASUBRAMANYAN, JJ. Civil P.C. (5 of 1908), O.7, R.11(d), O.1, R.1, R.2 - PLAINT - CIVIL Civil P.C. (5 of 1908), O.7, R.11(d), O.1, R.1, R.2 - PLAINT - CIVIL

PROCEDURE - Rejection of plaint - Defect of misjoinder of parties PROCEDURE - Rejection of plaint - Defect of misjoinder of parties and causes of action - Not a ground for rejection of plaint.and causes of action - Not a ground for rejection of plaint.

2005 (4) Cal HN 664, Reversed.2005 (4) Cal HN 664, Reversed.

An objection of misjoinder of plaintiffs or misjoinder of causes of An objection of misjoinder of plaintiffs or misjoinder of causes of action, is a procedural objection and it is not a bar to the action, is a procedural objection and it is not a bar to the entertaining of the suit or the trial and final disposal of the suit. entertaining of the suit or the trial and final disposal of the suit. The Court has the liberty even to treat the plaint in such a case as The Court has the liberty even to treat the plaint in such a case as relating to two suits and try and dispose them off on that basis. On relating to two suits and try and dispose them off on that basis. On the scheme of the Code, there is no such prohibition or a the scheme of the Code, there is no such prohibition or a prevention at the entry of a suit defective for misjoinder of parties prevention at the entry of a suit defective for misjoinder of parties or of causes of action. The Court is still competent to try and or of causes of action. The Court is still competent to try and decide the suit, though the Court may also be competent to tell decide the suit, though the Court may also be competent to tell the plaintiffs either to elect to proceed at the instance of one of the the plaintiffs either to elect to proceed at the instance of one of the plaintiffs or to proceed with one of the causes of action. On the plaintiffs or to proceed with one of the causes of action. On the scheme of the Code of Civil Procedure, it cannot therefore be held scheme of the Code of Civil Procedure, it cannot therefore be held that a suit barred for misjoinder of parties or of causes of action is that a suit barred for misjoinder of parties or of causes of action is barred by a law, here the Code. It is open to the Court to proceed barred by a law, here the Code. It is open to the Court to proceed with the suit notwithstanding the defect of misjoinder of parties or with the suit notwithstanding the defect of misjoinder of parties or misjoinder of causes of action and if the suit results in a decision, misjoinder of causes of action and if the suit results in a decision, the same could not be set aside in appeal, merely on that ground, the same could not be set aside in appeal, merely on that ground, in view of S. 99 of the Code, unless the conditions of S. 99 are in view of S. 99 of the Code, unless the conditions of S. 99 are satisfied. Therefore, by no stretch of imagination, can a suit bad satisfied. Therefore, by no stretch of imagination, can a suit bad for misjoinder of parties or misjoinder of causes of action be held for misjoinder of parties or misjoinder of causes of action be held to be barred by any law within the meaning of O. 7, R. 11 (d).to be barred by any law within the meaning of O. 7, R. 11 (d).

Plaint can not be rejected o the basis of allegations made by Plaint can not be rejected o the basis of allegations made by defendant in his WS or in an application for rejection of plaintdefendant in his WS or in an application for rejection of plaint AIR 2006 SUPREME COURT 1828 "Mayar (H. K.) Ltd. v. Owners and Parties, AIR 2006 SUPREME COURT 1828 "Mayar (H. K.) Ltd. v. Owners and Parties,

Vessel M. V. Fortune Express"Vessel M. V. Fortune Express" = 2006 AIR SCW 863= 2006 AIR SCW 863 (From : Calcutta)*(From : Calcutta)* Coram : 2 Mrs. RUMA PAL AND PRAKASH PRABHAKAR NAOLEKAR, JJ.Coram : 2 Mrs. RUMA PAL AND PRAKASH PRABHAKAR NAOLEKAR, JJ. Civil Appeal No. 867 of 2006 (arising out of S.L.P. (Civil) No. 17906 of 2004), Civil Appeal No. 867 of 2006 (arising out of S.L.P. (Civil) No. 17906 of 2004),

D/- 30 -1 -2006.D/- 30 -1 -2006. Mayar (H. K.) Ltd. and Ors. v. Owners and Parties, Vessel M. V. Fortune Express Mayar (H. K.) Ltd. and Ors. v. Owners and Parties, Vessel M. V. Fortune Express

and Ors.and Ors. (A) Civil P.C. (5 of 1908), O.7, R.11 - PLAINT - Plaint - Cannot be rejected on (A) Civil P.C. (5 of 1908), O.7, R.11 - PLAINT - Plaint - Cannot be rejected on

basis of allegations made by defendant in his written statement - Plaint basis of allegations made by defendant in his written statement - Plaint disclosing cause of action - Requires determination by Court - Mere fact that in disclosing cause of action - Requires determination by Court - Mere fact that in opinion of Judge, Plaintiff may not succeed, cannot be ground to reject plaint.opinion of Judge, Plaintiff may not succeed, cannot be ground to reject plaint.

The plaint cannot be rejected on the basis of the allegations made by the The plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejeccted discloses a cause of action and if it does, then the plaint cannot be rejeccted by the Court exercising the powers under O. 7, R. 11. Essentially, whether the by the Court exercising the powers under O. 7, R. 11. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the Court, mere fact some cause of action which requires determination by the Court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the instant case, the averments made in ground for rejection of the plaint. In the instant case, the averments made in the plaint, do disclose the cause of action and, therefore, the High Court has the plaint, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under O. 7, R. 11 cannot be exercised for rejection rightly said that the powers under O. 7, R. 11 cannot be exercised for rejection of the suit filed by the plaintiff appellants. Similarly, the Court could not have of the suit filed by the plaintiff appellants. Similarly, the Court could not have taken the aid of S.10 of the Code for stay of the suit as there is no previously taken the aid of S.10 of the Code for stay of the suit as there is no previously instituted suit pending in a competent Court between the parties raising instituted suit pending in a competent Court between the parties raising directly and substantially the same issues as raised in the present suit. directly and substantially the same issues as raised in the present suit. (Paras (Paras 11, 12)11, 12)

Eviction suit filed prior to cause of action i.e. prior to fixed period of lease Eviction suit filed prior to cause of action i.e. prior to fixed period of lease objection relating to maintainability of suit not pressed at preliminary stage what objection relating to maintainability of suit not pressed at preliminary stage what

shall be the effect ?shall be the effect ?

AIR 2005 SUPREME COURT 1891 AIR 2005 SUPREME COURT 1891 "Vithalbhai Pvt. Ltd. v. Union of India""Vithalbhai Pvt. Ltd. v. Union of India"

Coram : 2 R. C. LAHOTI, C.J.I. AND G. P. Coram : 2 R. C. LAHOTI, C.J.I. AND G. P. MATHUR, J.MATHUR, J.

Civil P.C. (5 of 1908), O.7, R.11 - Transfer of Property Act (4 of 1882), S.111 - EVICTION - PLAINT - DISMISSAL - LEASE - Eviction suit - Cause of action - Suit filed prior to expiry of fixed term of lease - Maintainability - Plaintiff found entitled to relief prayed for by time written statement came to be filed - Objection as to maintainability of suit, not pressed by defendant at preliminary stage - Dismissal of suit on ground of its being premature, when it came to be decided after lapse of over eight years - Not justified.

In appeal respondent made allegation for casting votes In appeal respondent made allegation for casting votes in the name of certain religious leader in public in the name of certain religious leader in public

meetings – no averment in evection petition that said meetings – no averment in evection petition that said appeal was made in the public appeal was made in the public

AIR 2005 SUPREME COURT 2379 "Harmohinder Singh Pradhan v. AIR 2005 SUPREME COURT 2379 "Harmohinder Singh Pradhan v. Ranjeet Singh Talwandi"Ranjeet Singh Talwandi"

= 2005 AIR SCW 2512= 2005 AIR SCW 2512 (From : (2003) 3 Rec Civ R 807 (P and H))(From : (2003) 3 Rec Civ R 807 (P and H)) Coram : 3 R. C. LAHOTI, C.J.I., G. P. MATHUR AND P. K. Coram : 3 R. C. LAHOTI, C.J.I., G. P. MATHUR AND P. K.

BALASUBRAMANYAN, JJ.BALASUBRAMANYAN, JJ. Civil Appeal No. 8315 of 2003, D/- 28 -4 -2005.Civil Appeal No. 8315 of 2003, D/- 28 -4 -2005. Harmohinder Singh Pradhan, Appellant v. Ranjeet Singh Talwandi Harmohinder Singh Pradhan, Appellant v. Ranjeet Singh Talwandi

and others, Respondents.and others, Respondents. Representation of the People Act (43 of 1951), S.123(3) - ELECTION - Representation of the People Act (43 of 1951), S.123(3) - ELECTION -

RELIGION - PLEADINGS - PLAINT - APPEAL - Election petition - Corrupt RELIGION - PLEADINGS - PLAINT - APPEAL - Election petition - Corrupt practices - Religious appeal - Respondent allegedly made appeal for practices - Religious appeal - Respondent allegedly made appeal for casting votes in name of certain religious leaders in public meetings casting votes in name of certain religious leaders in public meetings - No averment in election petition that said appeal was made in - No averment in election petition that said appeal was made in name of his religion or to refrain voters from voting for petitioner on name of his religion or to refrain voters from voting for petitioner on ground of his religion - Distinction has to be drawn between ground of his religion - Distinction has to be drawn between appeal appeal simpliciter by religious leaders and appeal to vote or refrain simpliciter by religious leaders and appeal to vote or refrain from voting on ground of religion emanating from religious from voting on ground of religion emanating from religious leaders - Former is not vulnerable while latter is leaders - Former is not vulnerable while latter is - In election - In election petition necessary averments of facts constituting appeal on ground petition necessary averments of facts constituting appeal on ground of religion were deficient - Rejection of election petition at threshold of religion were deficient - Rejection of election petition at threshold on ground of not disclosing cause of action - Is proper.on ground of not disclosing cause of action - Is proper.

Civil P.C. (5 of 1908), O.7, R.11, O.6, R.16.Civil P.C. (5 of 1908), O.7, R.11, O.6, R.16. (Paras 12, 13, 14, 15)(Paras 12, 13, 14, 15)

O7R14(4)O7R14(4)

Documents relied on the Plaint – Documents relied on the Plaint – O7R14- Newly amended vide amendment act 2002O7R14- Newly amended vide amendment act 2002

At the time of presentation of suit At the time of presentation of suit the Plaintiff has to produce the the Plaintiff has to produce the documents on which he relies and in documents on which he relies and in his possession.his possession.

The filing of such document ca be The filing of such document ca be made either annexing to the plaint or made either annexing to the plaint or in the list of documents.in the list of documents.

But this can not be produced and But this can not be produced and entered into evidence without leave entered into evidence without leave of the court. of the court.

O7R14(4)O7R14(4) AIR 2005 SUPREME COURT 3353 "Salem AIR 2005 SUPREME COURT 3353 "Salem

Advocate Bar Assocn. v. Union of India"Advocate Bar Assocn. v. Union of India" Coram : 3 Y. K. SABHARWAL, D. M. Coram : 3 Y. K. SABHARWAL, D. M.

DHARMADHIKARI AND TARUN DHARMADHIKARI AND TARUN CHATTERJEE, JJ.CHATTERJEE, JJ.

Civil P.C. (5 of 1908), O.7, R.14(4) (as substituted by Civil P.C. (5 of 1908), O.7, R.14(4) (as substituted by Amendment Act of 1999) - DOCUMENTS - PLAINT - Amendment Act of 1999) - DOCUMENTS - PLAINT - WITNESS - Production of documents for cross-WITNESS - Production of documents for cross-examination - Words "plaintiff's witnesses - examination - Words "plaintiff's witnesses - Mentioned by mistake in O. 7, R. 14(4) - Words Mentioned by mistake in O. 7, R. 14(4) - Words "plaintiff's witnesses to be read as defendant's "plaintiff's witnesses to be read as defendant's witnesses" till legislature corrects mistake.witnesses" till legislature corrects mistake. (Paras (Paras 36, 37)36, 37)

All the Amendments in C.P.CAll the Amendments in C.P.C.. AmendmentsAmendments_______|__________________|___________In the pleadings In the pleadings In the order sheetIn the order sheet || ||

1.By addition of parties -O1R10 1 In judgement, 1.By addition of parties -O1R10 1 In judgement, order,decreeorder,decree

2. By amendment in plaint When; any clerical, 2. By amendment in plaint When; any clerical, arithmetical mistakearithmetical mistake

any defendant added -O1R10(4) any accidental any defendant added -O1R10(4) any accidental slip – S.152 by itself or on slip – S.152 by itself or on motion of partymotion of party

3. By Striking out pleading of 2 General Power 3. By Striking out pleading of 2 General Power to amend – S153 to amend – S153

Opponent – O6R16Opponent – O6R16 amending any defect or error amending any defect or error in in the proceeding the proceeding

4. Amendment of pleading of 3. Power to amend 4. Amendment of pleading of 3. Power to amend decree or order decree or order

party who pleaded it –O6R17 where appeal party who pleaded it –O6R17 where appeal dismissed U/O41R11 by dismissed U/O41R11 by appellate, court of appellate, court of first first instance shall be instance shall be amend confirming amend confirming the decree or order. – the decree or order. – S.153AS.153A

O1R10 O1R10 O1R10 O1R10 Suit in the name of wrong Suit in the name of wrong

plaintiff plaintiff A suit instituted in the name of Wrong plaintiff, A suit instituted in the name of Wrong plaintiff, It is doubtful that it has been instituted in the It is doubtful that it has been instituted in the

name of right plaintiffname of right plaintiff Court may at any stage of the suit Court may at any stage of the suit

Court is Satisfied that the suit has been Court is Satisfied that the suit has been instituted through a bona fide mistakeinstituted through a bona fide mistake

Court is satisfied that it is necessary for Court is satisfied that it is necessary for determination of the real matter in disputedetermination of the real matter in dispute

Court may for the said purpose order any Court may for the said purpose order any other person to be substituted or added as other person to be substituted or added as plaintiff upon such term court ma think fit.plaintiff upon such term court ma think fit.

O1R10(2)O1R10(2)

Amendment in Order sheetAmendment in Order sheet

Points on Amendment Points on Amendment 1.Points considered U/O 1R10 CPC, if court thins fit 1.Points considered U/O 1R10 CPC, if court thins fit

that:-that:-- For the determination of real question in controversy - For the determination of real question in controversy -presence of party is necessary in order to enable the -presence of party is necessary in order to enable the

court for complete adjudication and settle all the court for complete adjudication and settle all the question involved in suit question involved in suit

2. Where ever a defendant be added, necessary 2. Where ever a defendant be added, necessary amendment shall be taken place in the plaint and amendment shall be taken place in the plaint and copy of the plaint be served upon the new copy of the plaint be served upon the new defendant.defendant.

3. Amendment is necessary for the purpose of 3. Amendment is necessary for the purpose of determining the real question in controversydetermining the real question in controversy between the parties / as per proviso amendment between the parties / as per proviso amendment shall not be taken place after commencement of trial shall not be taken place after commencement of trial with only one exception that in with only one exception that in spite of due diligencespite of due diligence the party could not have raised the matter before the party could not have raised the matter before commencement of trial.commencement of trial.

Important Rulings on the point Important Rulings on the point of Pleadingsof Pleadings

O6R1 C.P.C.O6R1 C.P.C. – – AIR 1999 SC 3029 – AIR 1999 SC 3029 –

In construing a Plea in the pleading the court In construing a Plea in the pleading the court must keep in his mind that a plea is not an must keep in his mind that a plea is not an expression of art or science but an expression expression of art or science but an expression through words to place fact and law of one’s through words to place fact and law of one’s case for relief. Such an expression may be case for relief. Such an expression may be pointed, precise, some times vague but still pointed, precise, some times vague but still could be gathered what he wants to convey could be gathered what he wants to convey through only by reading the whole pleading, through only by reading the whole pleading, depends on the person drafting it. depends on the person drafting it.

AIR 1988 SC 1796 – AIR 1988 SC 1796 – Question of appreciation of evidence is not to Question of appreciation of evidence is not to

be pleaded instead it is duty of court to be pleaded instead it is duty of court to consider whether documents produced by consider whether documents produced by party proved facts in issue.party proved facts in issue.

AIR 1987 SC 1242(1247) –AIR 1987 SC 1242(1247) – It is not desirable to place under emphasis on It is not desirable to place under emphasis on

form, instead the substance of the pleading form, instead the substance of the pleading should be considered.should be considered.

AIR AIR

Effect of lack of PleadingsEffect of lack of Pleadings

AIR 1987 SC 1242 + 2002(8) JT 288 –AIR 1987 SC 1242 + 2002(8) JT 288 – In absence of pleading, evidence, if any, In absence of pleading, evidence, if any,

produced by the parties can not be produced by the parties can not be considered……considered……

AIR 1996 SC 112(114) AIR 1996 SC 112(114) Plea as to adverse possession not raised Plea as to adverse possession not raised

in pleading _ No amount of proof can be in pleading _ No amount of proof can be substitute pleadings which are the substitute pleadings which are the foundation of claim of a litigation.foundation of claim of a litigation.

AIR 2003 SC 4319 –AIR 2003 SC 4319 – IN absence of any pleading whatsoever IN absence of any pleading whatsoever

on question as to whether child was on question as to whether child was given in adoption by his father or given in adoption by his father or brother, the court can not go into same brother, the court can not go into same even if evidence was adduced.even if evidence was adduced.

Court Cannot make out a new Court Cannot make out a new case not pleadedcase not pleaded

AIR 2003 SC 160 –AIR 2003 SC 160 – Suit for partition – Plaintiff claiming only Suit for partition – Plaintiff claiming only

half share in property – can not be half share in property – can not be declared owners of the entire property.declared owners of the entire property.

AIR AIR

Proceeding under C.P.C. Vs Proceeding under C.P.C. Vs Under 226 of the constitution of Under 226 of the constitution of

India Vs 125 Cr.P.C.India Vs 125 Cr.P.C. AIR 1988 SC 2181(2186) AIR 1988 SC 2181(2186)

In a pleading under C.P.C. – In Plaint or W.S. In a pleading under C.P.C. – In Plaint or W.S. facts and not the evidence are required to be facts and not the evidence are required to be pleaded.pleaded.

In a pleading under Art. 226 of Constitution of In a pleading under Art. 226 of Constitution of India – Writ Matter – In Writ Petition or India – Writ Matter – In Writ Petition or Counter affidavit not only the facts but also Counter affidavit not only the facts but also evidence in proof of such facts have to be evidence in proof of such facts have to be pleaded and annexed to it.pleaded and annexed to it.

In a proceeding U/S 125 Cr.P.C. – Provisions of In a proceeding U/S 125 Cr.P.C. – Provisions of C.P.C. not apply due to the reason that it is C.P.C. not apply due to the reason that it is not the Civil Pleading.not the Civil Pleading.

In this regard view of the H.Cs. are different.In this regard view of the H.Cs. are different.

Material Facts Material Facts

AIR 2001 SC 3689 + AIR 1963 SC AIR 2001 SC 3689 + AIR 1963 SC 1607(1612)1607(1612) Material facts means all facts upon which Material facts means all facts upon which

the plaintiff’s cause of action or the the plaintiff’s cause of action or the defendant’s defence defendants, in other defendant’s defence defendants, in other words, all those facts which must be words, all those facts which must be proved in order to establish the existence proved in order to establish the existence of the cause of action or defence.of the cause of action or defence.

Facts :Facts : Facta probanda – Facts on which Facta probanda – Facts on which the party pleading relies for his claim or the party pleading relies for his claim or defence.defence.

Facts probantia Facts probantia Facts by means of which Facts by means of which parties are to proved the case.parties are to proved the case.

Fraud, Custom Fraud, Custom

When relief has been claimed on the When relief has been claimed on the ground of fraud then in that case it ground of fraud then in that case it must be pleaded specifically since it must be pleaded specifically since it is a material facts. AIR 1975 Orissa is a material facts. AIR 1975 Orissa 97, Kant., Raj., Bombay, Cal., Delhi, 97, Kant., Raj., Bombay, Cal., Delhi, Pat (DB) of the same view. Pat (DB) of the same view.

Plea of custom be pleaded Plea of custom be pleaded specifically since it is a material specifically since it is a material facts. AIR 1973 Pun. 387facts. AIR 1973 Pun. 387

Amendment of PleadingsAmendment of Pleadings