C.P.C. - 6

What Points we have discussed in previous lectures  A short historical survey of the conception of civil procedure in India before the advent of British.  Similarities  Decree, Judgment & Order & Dis-similarities  Rejection of Plaint  Judgment Debtor/ Decree Holder  Mesne Profit   Various Stages of a Civil suit.   Jurisdiction and kinds of jurisdiction   Amendment of Pleadings  Drafting of Plaints  Return of Plaint  W.S. Set off & Counter Claim 

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Particulars added in a Plaint Name of the court in which suit has to be instituted O7R1(a) Name description & place of residence of plaintiff plaintiff –  – O7R1(b) Name description & Place of residence of defendant – defendant  – O7R1(c) Statement about the fact that P. or D. is minor or of unsound mind – mind – O7R1(d)  O7R1(d) Facts , cause of action and when it arose.- O7R1(e) Statement about the jurisdiction of the court – court  – O7R1(f) The relief claimed by the plaintiff – plaintiff  – O7R1(g)  O7R1(g) Statement relating to set off or relinquishment a portion of his claim claim –  – with  with specific amount – amount – O7R1(h)  O7R1(h) Statement of value of the subject matter matter –  – for  for the purpose of jurisdiction & court fees as described in the court. O7R1(i) Plaint shall be verified Plaint shall be affidavited Plaint shall be filed in duplicate O7R11(e) Production of document on which the plaintiff sue or relies -O7R14 Relief to be specified – specified – O7R7  O7R7 Procedure of admitting plaints – plaints  – O7R9  O7R9

PLEADING ORDER VI,VII & VIII C.P.C. 

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Pleading means Plaint & Written statement – statement  – O6R1 Every pleading (plaint or W.S. contains) material  A statement in a concise form of the material facts – facts  – O6R2(1)  O6R2(1) paragraph  – O6R2(2)  O6R2(2)  It shall be divided in to paragraph – Numbers – figure  figure & words both  Date, sum & Numbers –  – O6R2(3)  –  O6R2(3)  – Appendix  –  Appendix A – A – O6R3  O6R3  Form of pleading  Pleading about misrepresentation, fraud, breach of trust, wilful default, undue influence, condition precedent, departure, Denial of contract, notice, malice, knowledge, implied contract or relation & presumption of law be stated in the pleading – pleading – O6R4  O6R4 to 12  It be signed by the party and his/ her pleader.  – O6R14  –  O6R14 notice - 06R14  Address for service of notice pleading be made – made –  Verification & affidavit of pleading O6R15 Striking & amendment of pleading – pleading  – O6R17  O6R17

Basic Rules of pleadings 

Pleading means Plaint & W.S.

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Plaintiff‟s pleading – Plaint

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Defendant‟s pleading – Written Statement

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Defendant‟s pleading – in which defendant set up a claim against Plaintiff with a view of offset the original claim – “Set-off”  Defendant‟s Pleading – in which defendant made a claim against the Plaintiff independent in nature – “Counter Claim” – It amount to filing a cross suit – Court pronounce judgement on both original Claim and the counter claim.

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

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Pleading to state material facts and not evidence 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) Party must not state the evidence by which they are to be proved. Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained, in a separate paragraph. Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.

Material Facts  All facts upon which plaintiff‟s cause of action or defendant‟s defend depends.   All the primary facts which must be proved at the trial by a party to established the existence of a cause of action or his defence are material facts – (  AIR 1976 SC 744.  Facts are of two types 

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Facts probanda – facts required to be proved i.e. material facts Facts probantia – the facts by means of which they are to be proved i.e. particular or evidence.

 A pleading must contain fact probanda  Where ever misrepresentation, fraud, breach of trust, willful default or undue influence in the pleading, particulars with dates and item should be stated. 

 AIR 1976 SC 744 ::1977(I) SCC 511, UDHAV SINGH VS. MADHAV RAO SCINDIA P. N. BHAGWATI AND R. S. SARKARIA, 

The present case is related with an Election petition in which a pleading was made in para.11 of the plaint like this :"that, on or before 22-2-71, Shri Mohan Prasad Ojha, a Congress Worker of Village Umri (Tehsil Guna) was threatened at pistol point by the workers of the respondent with his consent, Shri Shiv Pratap Singh and others of Umri threatened not to vote and canvass in favour of the Congress candidate, Deorao Krishnarao Jadhav and threatening with dire consequences. '„

The reply of the this para respondent states that:"the allegation of the petitioner that on or before 22-2-1971 Shri Mohan Prasad Ojha, a Congress Worker of the village Umri (Tehsil Guna) was threatened at pistol point by the workers of the respondent with his consent is denied. It is also denied that with the consent of the respondent, Shri Shiv Pratap Singh and others of Umri threatened him not to vote and canvass in favour of the Congress Candidate Shri Deorao Krishnarao Jadhav and threatened him with dire consequences. This para is also lacking in material particulars as to who were the alleged workers, what was their names' their addresses, castes etc. It cannot therefore, be enquired into. The allegation is incorrect, baseless and vague. It is also vague because particulars as to when, where and in whose presence the alleged consent of the respondent was given are not mentioned. '' 

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aHardwari

Lal's case (AIR 1964 SC 1366)

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

Return of Plaint  – O7 Rule 10 & 10A

Court shall return the plaint for presentation before the proper court in the following circumstances :* lack of territorial jurisdiction * lack of pecuniary limit * lack of jurisdiction relating to subject matter

Procedure at the time of Returning Procedure at the time of returning the plaint: The Judge returning plaint shall endorce : date of presentation   date of return  Name of parties presenting plaint   Appellate court has also power to transfer suit to proper court  Directing the court to transfer suit from one court to another shall not effect the power of parties to raise question of jurisdiction in which plaint is filed to try the suit.  Court may direct on the point of limitation. Every such return is always subject to provisions of limitation act.

Rejection of Plaint O7R11 

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The Plaint shall be rejected on the following grounds :Plaint does not disclose cause of action When relief claimed is under-valued, on demand by the court to correct the valuation within specified time the plaintiff failed to do so When relief claimed is proper valued but insufficient stamp paid on the plaint, on demand by the court the plaintiff failed to do so within specified time. Where from the statement in the plaint it appears that suit is barred by law. Where it is not filed in duplicate. Where plaintiff failed to comply with the provisions of Rule 9 i.e. after passing order for service of summon upon the defendants, the plaintiff fails to provide the copies of the plaint duly stamped within 7 days from the date of such order in the office of the Civil court.

Procedure for rejection & Whether presentation of fresh plaint barred if rejected due to this reason. 

Rejection of Plaint :

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

Where rejection of plaint does not indicate presentation of fresh suit :

The rejection of the plaint U/O7 R 11 shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

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

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 AIR 2007 SUPREME COURT 1247 "Prem Lala Nahata. v. Chandi Prasad Sikaria" 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 PROCEDURE - Rejection of plaint - Defect of misjoinder of parties and causes of action - Not a ground for rejection of plaint. 2005 (4) Cal HN 664, Reversed.  An objection of misjoinder of plaintiffs or misjoinder of causes of 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. 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 the scheme of the Code, there is no such prohibition or a 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 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 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 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 with the suit notwithstanding the defect of misjoinder of parties or 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, 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 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).

Plaint can not be rejected o the basis of allegations made by defendant in his WS or in an application for rejection of plaint 

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 AIR 2006 SUPREME COURT 1828 "Mayar (H. K.) Ltd. v. Owners and Parties, Vessel M. V. Fortune Express" = 2006 AIR SCW 863 (From : Calcutta)* 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), D/30 -1 -2006. Mayar (H. K.) Ltd. and Ors. v. Owners and Parties, Vessel M. V. Fortune Express and Ors. (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 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. 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 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 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 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 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 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 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 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 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 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 directly and substantially the same issues as raised in the present suit. (Paras 11, 12)

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 shall be the effect ?

 AIR 2005 SUPREME COURT 1891 "Vithalbhai Pvt. Ltd. v. Union of India"  Coram : 2 R. C. LAHOTI, C.J.I. AND G. P. MATHUR, J. 

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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 the name of certain religious leader in public meetings  – no averment in evection petition that said appeal was made in the public 

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 AIR 2005 SUPREME COURT 2379 "Harmohinder Singh Pradhan v. Ranjeet Singh Talwandi" = 2005 AIR SCW 2512 (From : (2003) 3 Rec Civ R 807 (P and H)) Coram : 3 R. C. LAHOTI, C.J.I., G. P. MATHUR AND P. K. BALASUBRAMANYAN, JJ. Civil Appeal No. 8315 of 2003, D/- 28 -4 -2005. Harmohinder Singh Pradhan, Appellant v. Ranjeet Singh Talwandi and others, Respondents. Representation of the People Act (43 of 1951), S.123(3) - ELECTION RELIGION - PLEADINGS - PLAINT - APPEAL - Election petition - Corrupt practices - Religious appeal - Respondent allegedly made appeal for casting votes in name of certain religious leaders in public meetings - No averment in election petition that said appeal was made in name of his religion or to refrain voters from voting for petitioner on ground of his religion Distinction has to be drawn between appeal simpliciter by religious leaders and appeal to vote or refrain from voting on ground of religion emanating from religious leaders - Former is not vulnerable while latter is - In election petition necessary averments of facts constituting appeal on ground of religion were deficient - Rejection of election petition at threshold on ground of not disclosing cause of action - Is proper. Civil P.C. (5 of 1908), O.7, R.11, O.6, R.16. (Paras 12, 13, 14, 15)

O7R14(4)

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

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 At the time of presentation of suit the Plaintiff has to produce the documents on which he relies and in his possession. The filing of such document ca be made either annexing to the plaint or in the list of documents. But this can not be produced and entered into evidence without leave of the court.

O7R14(4)  AIR 2005 SUPREME COURT 3353 "Salem  Advocate Bar Assocn. v. Union of India"  Coram : 3 Y. K. SABHARWAL, D. M. DHARMADHIKARI AND TARUN CHATTERJEE, JJ. 

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

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All the Amendments in C.P.C

 Amendments  _______|___________ In the pleadings In the order sheet | | 1.By addition of parties -O1R10 1 In judgement, order,decree 2. By amendment in plaint When; any clerical, arithmetical mistak  any defendant added -O1R10(4) any accidental slip  S.152 by itself or on motion of party 3. By Striking out pleading of 2 General Power to amend  S153 Opponent O6R16 amending any defect or error in the proceeding 4. Amendment of pleading of 3. Power to amend decree or order party who pleaded it O6R17 where appeal dismissed U/O41R11 by appellate, court of first instance shall be amend confirming the decree or order.   S.153A  – 

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O1R10 

O1R10

 Suit

in the name of wrong plaintiff

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

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Court may at any stage of the suit 

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Court is Satisfied that the suit has been instituted through a bona fide mistake Court is satisfied that it is necessary for determination of the real matter in dispute

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

O1R10(2)

 Amendment in Order sheet

Points on Amendment 1.Points considered U/O 1R10 CPC, if court thins fit that:- For the determination of real question in controversy -presence of party is necessary in order to enable the court for complete adjudication and settle all the question involved in suit 2. Where ever a defendant be added, necessary amendment shall be taken place in the plaint and copy of the plaint be served upon the new defendant. 3. Amendment is necessary for the purpose of determining the real question in controversy between the parties / as per proviso amendment shall not be taken place after commencement of trial with only one exception that in spite of due diligence the party could not have raised the matter before commencement of trial.

Important Rulings on the point of Pleadings O6R1 C.P.C.   – AIR 1999 SC 3029 – 

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 AIR 1988 SC 1796 – 

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In construing a Plea in the pleading the court must keep in his mind that a plea is not an expression of art or science but an expression through words to place fact and law of one‟s case for relief. Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting it. Question of appreciation of evidence is not to be pleaded instead it is duty of court to consider whether documents produced by party proved facts in issue.

 AIR 1987 SC 1242(1247) – 

It is not desirable to place under emphasis on form, instead the substance of the pleading

Effect of lack of Pleadings 

 AIR 1987 SC 1242 + 2002(8) JT 288 – 

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 AIR 1996 SC 112(114) 

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In absence of pleading, evidence, if any, produced by the parties can not be considered…… Plea as to adverse possession not raised in pleading _ No amount of proof can be substitute pleadings which are the foundation of claim of a litigation.

 AIR 2003 SC 4319 – 

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

Court Cannot make out a new case not pleaded 

 AIR 2003 SC 160 – 

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Suit for partition – Plaintiff claiming only half share in property – can not be declared owners of the entire property.

 AIR

Proceeding under C.P.C. Vs Under 226 of the constitution of India Vs 125 Cr.P.C. 

 AIR 1988 SC 2181(2186) In a pleading under C.P.C. – In Plaint or W.S. facts and not the evidence are required to be pleaded. In a pleading under Art. 226 of Constitution of India – Writ Matter – In Writ Petition or Counter affidavit not only the facts but also evidence in proof of such facts have to be pleaded and annexed to it. In a proceeding U/S 125 Cr.P.C. – Provisions of C.P.C. not apply due to the reason that it is not the Civil Pleading. In this regard view of the H.Cs. are different.

Material Facts 

 AIR 2001 SC 3689 + AIR 1963 SC 1607(1612) 

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

Facts : Facta probanda – Facts on which the party pleading relies for his claim or defence. Facts probantia  Facts by means of which parties are to proved the case.

Fraud, Custom 

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When relief has been claimed on the ground of fraud then in that case it must be pleaded specifically since it is a material facts. AIR 1975 Orissa 97, Kant., Raj., Bombay, Cal., Delhi, Pat (DB) of the same view. Plea of custom be pleaded specifically since it is a material facts. AIR 1973 Pun. 387