Pleadings Generally

Order VI
 PLEADINGS
• Pleadings refer to the plaint and a written statement.
(order VI, rule 1)
• Plaint is the pleading of the plaintiff and written
statement is the pleading of the defendant
• The purpose of pleadings is to bring parties to an issue
and prevent the parties from being taken by surprise.
An issue is raised when a material fact is alleged by
one party and denied by the other. Pleadings are the
foundation of the case of the party.
• Ganesh Trading Co. v. Moji Ram AIR 1978 SC 484
• Virendra Kashinath v. Vinayak N. Joshi AIR 1999 SC 162
 General Principles for pleadings
• Rule 2 lays down the fundamental rule for pleadings:
• Pleadings must state facts and not law. (construction of a
document, Hindu law of Son’s pious obligation etc.)
• Material facts (facta probanda) on which a party relies must be
stated in the pleadings of a party
• Evidence (facta probantia) which is essential for proving the
material facts should not be included in the pleadings.
• Ex. Borrodaile v. Hunter: A was insured with an insurance
company. The terms of the insurance were that the policy would
be void if insured committed suicide. A committed suicide with a
pistol and died. This fact is facta probanda. Other facts that A was
melancholy for weeks, that he bought a pistol a day before
committing suicide, that a letter was found addressed to his wife
stating he intended to kill himself etc are facta probantia or
evidentiary facts.
• Facts must be stated in a concise manner
• Each allegation must be stated in a separate paragraph
• Dates, sums and figures to be stated in figures as well as words
 Rules 3-15
• The format of pleadings is mentioned in Appendix A.(rule 3)
• Necessary details and particulars must be stated in cases where
necessary. In cases of fraud, breach of trust, willful default or
undue influence and other wrongs of like nature like misconduct,
negligence etc. necessary details must be set out to prevent the
opposite party being taken by surprise at trial.(rule 4)
• Ex. Names of witnesses generally may not be required but where
names of witnesses constitute material fact, they must be
mentioned. A deals in drugs bearing a registered trademark
‘Ayush’. B uses the word ‘Ayush’ on drugs manufactured by him. A
sues B for infringement of trademark and alleges in his plaint that
the use of his trademark is calculated to induce and has induced
‘diverse persons’ to purchase B’s goods as A’s goods. Here names
of such persons forms part of material facts which B can ask to be
made known.
 Rules 3-15
• The performance of a condition precedent need not be alleged by
the party required to perform the same. However, the non
performance of the same must be alleged by the party who wishes
to contest the performance of the condition precedent. (rule 6)
• Ex. A agrees to build a house for B at certain specified rates in the
contract. It is a condition precedent of the agreement that
payment to A should only be made upon a certificate signed by B’s
architect as to amount due. A demands payment upon completion
of the building, but B refuses to pay. A sues B, claiming Rs 5000/-.
Here the obtaining of architects certificate is condition precedent
to A’s right of action. A need not expressly aver its performance, it
is implied. If B intends to contest the fulfillment of the condition
precedent, he must distinctly specify the condition precedent in
his written statement. If B does not plead the non performance, it
will be taken to have been performed impliedly.
 Rules 3-15
• Departure (rule 7) : A person cannot make inconsistent pleadings except
by way of an amendment in the pleadings. The two pleas must not be
mutually destructive. However, a person may raise alternative pleas or
alternative reliefs. Simmilarly, a defendant may raise alternative defenses.
• Ex. A landlord may file for eviction on the ground of personal requirement
or on the ground of non payment of rent. In a petition for judicial
separation, alternative relief of divorce may be claimed. However, a
plaintiff cannot pray that a contract is void and in the alternative for
specific performance. Simmilarly, where the defendant admitted that the
deceased testator and plaintiff were husband and wife and also led
evidence to that effect, he cannot be allowed to retract the admission and
raise the plea that there was no marriage at all.
•
• Denial of a contract in a pleading does not mean the denial of its legality. It
would mean the denial of its very existence. An illegal or void contract
must be specifically alleged. (rule 8)
 Rules 3-15
When a right is claimed on the basis of a document, only the
effect of the document needs to be stated in the pleadings. The
detailed document need not be set out in pleadings. Ex. Effect of
the sale deed, will etc. However, sometimes a part of the
document is a material fact. Ex. A sends a book of which he is the
author to B for review. B, in reviewing the book prints and
publishes among other statements the following: ‘A by his own
confession is a most barefaced liar.’ A sues B for damages for
defamation. B, justifies, pleading the truth of the statement. B
must specify in his pleading the passage in A’s work on which he
relies in support of his defence of justification. (rule 9)

• Whenever a condition of mind (knowledge, malice etc.) is alleged

against the opposite party, it only needs to be alleged as a fact.
The circumstances constitute evidence. (rule 10)
 Rules 3-15
• Notice of a certain thing to opposite party also needs to be alleged as a
fact. Whenever giving of a notice to any party is necessary, it must be
alleged as a fact without setting out the details of the notice. (ex. Notice
under section 80 cpc.) [rule 11]
• If a contract or relation is to be implied from a series of letters or
conversations etc. the same only need to be referred as a fact without
giving the detail contents of the same. [rule 12]
• Facts which law presumes to be in the favour of a party or the burden of
proving lies on the opposite party need not be specifically stated in the
pleadings. Ex. Presumption of legitimacy under IEA .(rule 13)
• Pleading must be signed by the party concerned or by some person duly
authorized in writing. (rule 14)
• The parties must submit their correct address to the court known as the
registered address. If a plaintiff submits a wrong address the court may
stay his suit and if the defendant submits a wrong address the court may
strike off his defence. (rule 14-A)
• Pleading must be verified on affidavit by the party. (rule 15)
 Amendments: Provisions under CPC
• Section 152 CPC: Amendment in decree order or
judgment of clerical and arithmetical mistakes
• Section 153 CPC: Amendment by court in any
proceedings whether parties ask for it or not
• Order 1, rule 10: striking or adding parties
• Order 6, rule 16: Amendment of opponent’s
pleadings
• Order 6, rule 17: Amendment of one’s own
pleadings
 Amendment of Pleadings
• Involuntary amendment of pleadings: (r.16)
The Court may order the striking out of a part of the pleading if it is false,
frivolous, scandalous, intended to prejudice, embarrass or delay the trial
or amounts to abuse of the process of court. Under this provision, a party
may approach the court for amendment of his opponent’s pleading. This is
also known as compulsory amendments
EX. Defamatory statements against the judge of lower court in appeal can be
struck off as scandalous.
In a petition for divorce by a husband the allegations against the wife of
relations before marriage with another person which were not necessary
for the issues involved before the court could be stuck off as unnecessary
and scandalous.
If party asserts same matter which has been earlier decided against him, it
will amount to abuse of process of law and can be struck off under rule 16.
 Object of Amendments
• To prevent multiplicity of suits
• To promote the ends of justice
• SC outlined the object in Jai Jai Ram Manohar v.
National Building material Supply AIR 1969 SC 1267 :
that the courts are meant for the purpose of doing
justice and not for punishing them for minor mistakes.
• In Haridas Girdhardas v. Vasadaraja Pillai 1971 Sc 2336,
the court stated that “ however negligent or careless
the first ommission may have been and however late
the proposed amendment is, it must be allowed if it
does not cause injustice to the other side.
 Amendment of Pleadings
Voluntary amendments:(r.17):
The courts may allow a party to amend his pleading at any stage provided the
amendment is necessary for the real matter in dispute and does not affect the
opposite party adversely. An amendment shall be refused if claimed after the trial
begins and the party could have raised the issue before the trial begins. However,
courts have interpreted this provision liberally. Rule 17 was deleted by the
amendment act of 1999 as it was felt that it was responsible for causing delay in
disposal of cases. However, the amendment act of 2002 restored it with a proviso.
The constitutional validity of the proviso was challenged in the Salem Advocate Bar
Association, Tamil Nadu vs. Union of India AIR 2005 SC 3353. The Honorable SC
upheld the validity of the said provision and said that its object is to prevent frivolous
applications filed to delay the process of trial. The court held:
“Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999,
this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with
an added proviso to prevent application for amendment being allowed after the trial has
commenced, unless the court comes to the conclusion that in spite of due diligence, the party
could not have raised the matter before the commencement of trial. The proviso, to some
extent, curtails absolute discretion to allow amendment at any stage. Now, if application is
filed after commencement of trial, it has to be shown that in spite of due diligence, such
amendment could not have been sought earlier. The object is to prevent frivolous applications
which are filed to delay the trial. There is no illegality in the provision.”
 Amendment of Pleadings
• Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi & Ors. (2006) 4 SCC, the Sc held:
• “The object of the rule is that the courts should try the merits of the case that come
before them and should, consequently, allow all amendments that may be necessary
for determining the real question in controversy between the parties provided it does
not cause injustice or prejudice to the other side. Order 6 Rule 17 consists of two
parts. Whereas the first part is discretionary (may) and leaves it to the court to order
amendment of pleading. The second part is imperative (shall) and enjoins the court
to allow all amendments which are necessary for the purpose of determining the real
question in controversy between the parties.”
• In Chander Kanta Bansal Vs. Rajinder Singh Anand, (2008) 5 SCC 117, the Sc held:
”The entire object of the said amendment is to stall filing of applications for
amending a pleading subsequent to the commencement of trial, to avoid surprises
and the parties had sufficient knowledge of the other’s case. It also helps in checking
the delays in filing the applications. Once, the trial commences on the known pleas, it
will be very difficult for any side to reconcile. In spite of the same, an exception is
made in the newly inserted proviso where it is shown that in spite of due diligence, he
could not raise a plea, it is for the court to consider the same. Therefore, it is not a
complete bar nor shuts out entertaining of any later application. As stated earlier, the
reason for adding proviso is to curtail delay and expedite hearing of cases.”
 Important Principles for amendment of
Pleadings
• All amendments necessary for determination of real controversy in the suit. Any amendment which is not necessary
for determining real matter in dispute will not be allowed. Eg A landlord is not entitled to obtain possession of a
rented property from the tenant on the ground of bonafide requirement if he has purchased the property after a
particular date, an amendment to add the ground for obtaining possession can be refused by the court as being
unnecessary if the landlord has purchased the property after that date. Usha Devi v. Rijwan Ahmad & Ors., (2008) 3
SCC 717, the amendment was allowed wherein the misdescription of property was corrected as it was important to
decide the real matter in dispute.
• The proposed amendment should not alter and substitute the cause of action which was the basis of the original lis
and introduces a new and inconsistent case or changes the character of the case and displaces the position of the
opposite party. Eg. Steward v. North Metropolitan Tramways Co. : In this case, the plaintiff filed for damages caused
by the negligence of the company in allowing the tramways to be in a defective condition. The company denied the
allegation of negligence. It was not even contended by the company that it was not a proper party to the suit. More
than six months after the written statement was filed, the company applied for leave to amend its written statement
to add the plea that under the agreement entered into between the company and the local authority, the liability to
maintain the tramways was that of the local authority and not the company. At the date of the amendment
application the claim against the local authority had become time barred. Thus plaintiff could not file a suit against
him. Thus his position would be wholly displaced. Therefore, the court disallowed the amendment. The Supreme
Court of India, in Estrella Rubber V. Dass Estate (P) Ltd., (2001) 8 SCC 97, held that mere delay in making the
amendment application is not enough to reject the application unless a new case is made out, or serious prejudice is
shown to have been caused to the other side so as to take away any accrued right.
• Inconsistent pleas which are mutually destructive and in negation of the admitted position should not be
introduced by way of amendment. Eg. Where the case of the plaintiff throughout was that the property was non
ancestral and evidence was also led to that effect, then making an amendment that the property was ancestral
cannot be allowed.
 Important Principles for amendment
of Pleadings
• The amendment should not have the effect of taking away a right accrued to the opposite party by
lapse of time. Eg. Weldon v. Neal: A filed a suit against B for damages for slander. A later filed for
leave to amend his pleadings to add the claim for assault and false imprisonment. At the date of
the amendment, the claims were time barred. Hence the court refused the same on the ground
that it would amount to taking away from the opposite side, a legal right which has accrued to
him. However, this rule is not absolute.
• Amendment of a claim or relief barred by time should not be usually allowed. L.J Leach and Co.
Ltd. V. Jardine Skinner and Co. AIR 1957 SC 357. Held that the fact that a fresh suit on amended
claim was barred by limitation is a factor to be taken into consideration in the exercise of
discretion as to whether the amendment should be ordered or not and it does not affect the
power of the court to order it if that is required in the interests of justice. Amendment was
allowed of a time barred claim for damages of breach of contract as all the averments regarding
breach of contract were already present in the plaint only the allegation of breach by way of non
delivery of goods was not taken. The plaintiff had filed for damages for conversion alleging that
the defendants were the agents of plaintiff and having imported the goods, they had not delivered
them to the plaintiff. The court held they were in the capacity of seller and purchaser. The
amendment was claimed in the appeal. Similar was held in Pankaja and another v. Yellappa 2004
SC. A time barred plea for possession of some more areas after 6 years of institution of suit was
allowed on the ground that whether the plea is time barred or not is arguable (whether it was a
suit for declaration suit or for possession). Therefore it may be allowed and it is the discretion of
the court. Also see Raghu Thilak D. John V. S.Rayappan And Ors. 2001 (2) SCC 472. Sampath
Kumar V. Ayyakannu and Anr. 2002 (7) SCC 559 . Here also, plea of possession was allowed after
11 years . However, the claim was added from the date when it was made and not retrospectively.
• Amendment to be allowed usually if made before the commencement of the trial. Kailash v. Nanhku
(2005)4 SCC 480, the SC held that the trial begins when the issues are framed. In Baldev Singh v. Manohar
Singh (2006) 6 SCC 498, the SC held that “commencement of trial as used in proviso to Order 6 Rule 17 in
the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the
suit, examination of witnesses, filing of documents and addressing of arguments”. The Court also stated
that amendment of written statement is on a different footing than the amendment of a plaint. Amending
a written statement involves lesser peril than a plaint. it stated “in the case of amendment of written
statement, the courts are inclined to be more liberal in allowing amendment of the written statement than
of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter
case.” In Vidyabai & Ors. Vs. Padmalatha & Anr., (2009) 2 SCC 409 held that filing of an affidavit in lieu of
examination-in-chief of the witnesses amounts to commencement of proceedings. The date on which the
issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of
various steps at different stages of the pro- ceeding. Filing of an affidavit in lieu of examination-in-chief of
the witness, in our opinion, would amount to “commencement of proceeding”.”In Ajendraprasadji N.
Pande & Anr. V. Swami Keshavprakeshdasji N. & Ors., 2007 AIR SCW 513, the Supreme Court considered
the scope of amendment in Order VI Rule 17 C.P.C. by adding a proviso to the effect that amendment
application should be filed prior to commencement of the trial. The Apex Court held that trial commences
when the issues are settled and case is set down for recording of evidence. The Apex Court observed that
unless the party satisfies the Court that in spite of due diligence, the issue could not be raised in the suit or
proceedings before the commencement of trial, the amendment should not be allowed
• In Mohinder Kumar Mehra v. Roop Rani Mehra, (2018) 2 scc 132], the Sc allowed amendment of plaint after the
framing of issues. In this case, the application was made after framing of issues but before the evidence was led.
Thus the Court held that no prejudice was caused to the opposite side.

• In, J.Yadagiri Reddy and others vs. J.Hemalatha and others, 2016 (3) ALT 211 the High Court of Judicature at
Hyderabad observed that even in cases where an application for amendment is filed after commencement of trial,
the amendment should be allowed if the amendment sought does not require any evidence to be led specifically or
additionally by either of the parties to decide the rights of the parties as the object of the Court should be not to
punish a party for any mistake committed in filling the plaint initially.
• Roop Ram Educare Pvt. Ltd. vs Exclusive Floor Owners Society on 11 August, 2017, SC held: “it is equally incorrect to
say that the parameters for the amendment of written statement is totally different from that of the plaint. This flies
in the face of the language of Order 6 Rule 17 which refers to both sides by using the expression “either party” and
by using the expression “pleadings”, which would obviously include the written statement as well.” Therefore, the
amendment was disallowed as the parameters of rule 17 were not met. The High court too had held that the trial
had begun as evidence was already being led in the court.
• In Nagappa Vs Gurudayal Singh & Ors., AIR 2003 SC 674, the Supreme Court held that amendment can be allowed
even at an appellate stage in a case where the law of limitation is not involved and the facts and circumstances of the
particular case so demand, in order to do justice to the parties. The case involved therein was under the provisions
of Sections 166, 168 and 169 of the Motor Vehicles Act, 1988 and as the Act does not provide for any limitation with
respect to filing the claim petition, the amendment at the appellate stage was allowed. Simmilarly in Ghaziabad
Development Authority v. Anoop Singh AIR 2003 SC 1004, court allowed the application for enhanced compensation
under the Land Acquisition Act.
• Amendment to be allowed to minimize litigation
• Error or mistake if bonafide should not be a ground for
rejecting an application for amendment
• No party should suffer on account of technicalities of
Law.
• Delay in filing application for amendment should be
properly compensated.
• Rule 18 of order VI provides that whatever
amendments are allowed by the court, they must be
made by the parties within the time provided by the
court in the order or within 14 days from the order if
no date is provided. The court can extend the date too.