Justice N. Anand Venkatesh on the Structuring of Pleadings – Part II

Editor’s Note: This post (the second part of a two-part series) is a transcript of a webinar conducted by Justice N. Anand Venkatesh of the Madras High Court on the Structuring of Pleadings under the Civil Procedure Code. The webinar is a part of the Nyaya Forum for Courtroom Lawyering’s Webinar Series on Practical Skills for Litigation. The video of the webinar can be found here. The first part of the transcript can be found here.

Amendment of Pleadings -Order VI Rule 17 of the Civil Procedure Code (“CPC”) deals with amendment of pleadings. An Amendment allows parties to add, subtract, modify, or do anything else with a pleading. Any defect in a pleading, whether it is a plaint or a written statement, cannot be cured except by amending the concerned pleading. Further, amendment of pleadings is of great significance because there may be material facts which the client did not tell you or some important document about which the client was not aware at the time of filing the pleading. However, it so happens that at a later point of time, the client becomes aware of the material fact or is able to lay hands on the important document. Moreover, there may also be a situation where subsequent developments have taken place during the pendency of the suit. In all these cases, an amendment to pleadings becomes necessary. However, amendments are not so straightforward to carry out. This is because the moment a pleading is filed, it becomes the property of the court. Parties have absolutely no access to it except through the procedure prescribed under Order VI Rule 17.  

Stage at which pleadings can be amended – Regarding when pleadings can be amended, the law has evolved in the following manner –

Position before the 2002 Amendment – Before 2002, the language of Order VI Rule 17 provided scope for amendments to be allowed at any stage of the proceedings. There were Supreme Court judgments which said that a petition for amendment of pleadings could be entertained even at the Second Appeal Stage. Thus, amendments at advanced stages were permitted. The Legislature thus wanted to curb this practice. Therefore, in 2002 there was a major overhaul. Various provisions of the CPC were amended with effect from 1/07/2002. Amongst them was Order VI Rule 17

Position after 2002 Amendment (current position) –The Amendment divided Order VI Rule 17 into two parts – petitions for amendments prior to commencement of trial, and those after the commencement of trial. In case of a pre-trial amendment petition, courts have been given the leverage to be lenient. However, in relation to a post-commencement (of trial) amendment petition, the Proviso to Order VI Rule 17 says, “provided that no application for Amendment shall be 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 the Trial”. Thus, as a general rule, post-commencement amendments are not permitted, unless a party can show that he was not able to do so despite due diligence, or because there were subsequent developments etc. Hence, it becomes important to get all the facts from the client before the filing of the pleadings itself. As the suit progresses, an amendment is not granted as a matter of course unless certain requirements are satisfied. For a better understanding pf pre and post-commencement amendments, refer to J. Samuel v. Gattu Mahesh (2012 2 SCC 300).

Other Important Points on Amendments Firstly,where the amendment sought for seeks relief that is barred by the law limitation, then courts shall not permit such an amendment. As substantiation for this point, refer to the judgment of the Supreme Court in T.N. Alloy Foundry Co. Ltd. vs. T.N. Electricity Board (2004 3 SCC 392).

Secondly, the amendment must not change the structure of the suit or the cause of action of the suit. The term “cause of action” is not defined in the CPC. Generally speaking, cause of action is a bundle of all material facts in the plaint which taken along with the law applicable to those facts (e.g. Transfer of Property Act, Indian Contract Act etc.), creates a basis for on which relief is claimed by the plaintiff against the defendant. To understand cause of action better, refer to the Supreme Court judgment inABC Laminart Pvt. Ltd. v. AP Agencies, Salem (1989 2 SCC 163). Now, where a cause of action is available, it is not possible to split reliefs and file independent suits. One comprehensive suit must be filed. For instance, assume that on the basis of some facts, you are seeking relief of declaration. Those facts also provide you a cause of action for claiming injunction. In such circumstances, you have to file a comprehensive suit by bringing everything together in the same suit and seek relief for both injunction and declaration. One suit for declaration and another suit for injunction is not permissible. Thus, splitting of cause of action is not permissible unless it is a separate cause of action which has occurred subsequently. Thus, overall, an amendment must not change the structure or cause of action. Where it seeks to change the cause of action of whole case itself, it will not be allowed. This point has also been made clear by the Supreme Court in Sucha Singh Sodhi (D) thr. L.Rs. vs. Baldev Raj Walia (2018 3 LW 1).

Thirdly, an amendment by the plaintiff must not result in inconsistent pleadings. Alternative pleadings are not prohibited; inconsistent pleadings are. For instance, in a suit, the plaintiff seeks the relief of specific performance, which involves directing the defendant to execute a sale deed pursuant to a prior agreement between parties. Here, the plaintiff can also seek the alternative relief of seeking refund of the advance amount paid by him/her to the defendant. This alternative relief must be supported through pleadings in the body of the plaint. In another example, the plaintiff is seeking ownership and declaration of title based on his status as legatee under a will. According to him, his father has executed will, and therefore he has obtained the property as a legatee. In the alternative, he seeks a share as legal heir. These are alternative pleadings and are not prohibited. Inconsistent pleadings are prohibited.

An inconsistent pleading is one where the reliefs pleaded for cannot co-exist or stand side by side at the same time. For example, a plaintiff is seeking a relief of declaration of title by tracing his title through some documents. Alternatively, he is also seeking a relief of title on account of adverse possession (adverse possession is the possession created adverse to the interest of the other side, which arises when a person is enjoying a property for more than 12 years). Such pleadings cannot be permitted because ownership based on title and ownership based on adverse possession cannot co-exist. This is because if the plaintiff is claiming title by virtue of adverse possession, he must first accept the ownership of defendant and then say that he has enjoyed possession for 12 years. In this manner, reliefs of ownership by title and ownership by adverse possession are inconsistent pleadings, and can never be permitted. Similarly, an ownership claim and an easement claim are also inconsistent pleadings. This is because in case of an easement right, there is a dominant interest and subservient interest. Hence, the person claiming an easement must first admit that the one with the dominant interest is the owner. Thus, to summarize, alternative pleadings are allowed. If pleadings are mutually destructive, they are not permitted. Thus, any amendment cannot lead to inconsistent pleadings. This is as far as a plaint is concerned.

When it comes to the defendant, the law is slightly different. The defendant is in fact allowed to add to, substitute or alter the written statement by way of amendment. He is also allowed to take inconsistent pleadings. The reason behind this is that under Section 101 of the Indian Evidence Act, the burden is on the plaintiff to establish his own case; he cannot discharge his burden by poking holes in the case of the defendant. In contrast, the defendant may say anything he wants since he is not coming before the court and seeking relief. Thus, when it comes to amendment the law is different for different parties. The reason for this difference is sound – the defendant is given leeway since he not seeking relief before the court. However, the defendant cannot ever withdraw an admission already made by him even through amendment. To understand this better, refer to the judgment in Ram Niranjan Kajaria vs. Sheo Prakash Kajaria (2015 10 SCC 203).

Now, after discussing pleadings in general, we can move on to the plaint and the written statement specifically. Order VII deals with a plaint and Order VIII deals with a written statement.

Plaint – Order VII Rule 1 gives a broad idea about the structure and particulars of a plaint. Specifically, every plaint should contain –

  • Name of court before which it is filed e.g. Before the District Munsif Court Coimbatore
  • Name, description and place of residence of the plaintiff e.g. x, son/wife/daughter of abc. Address, herewith called as plaintiff.
  • Then, versus will come. Versus whom? xyz, son of abc etc., address, herewith called the defendant. This person is the defendant.
  • Subsequently, the material facts of the case have to be mentioned sequentially. These material facts must ultimately lead to a separate paragraph showing how the cause of action has arisen for the plaintiff to file his suit. In other words, the plaint has to demonstrate how the material facts have culminated into the cause of action.
  • After that, the plaintiff has to show that the cause of action is within the jurisdiction of the court as per Order VII Rule 1(f).
  • Finally, the plaintiff has to ask for relief based on the cause of action.  

Ingredients of a plaint – Order VII Rules 2-8 talk about the different requirements for different types of plaints. For instance, Rule 2 talks about the contents of the plaint in a money suit. Rule 3 talks about the contents in case the subject matter of the suit involves any immovable property. Specifically, it requires the property to be properly described. There must not be any vagueness – if the property has any number, survey number etc., it must be mentioned. The boundaries of the property must be mentioned. So, the identity of property must be very clear whenever the suit involves immovable property, as per Order VII Rule 3. Likewise, Order VII Rule 7 says that relief must be specifically stated; the party cannot ask the court to assume and give relief. Thus, structuring becomes very important. Only if the structing is properly done will you be able to arrive at a cause of action. Only if you arrive at a cause of action can you clearly ask for relief.  

Returning of a plaint –Order VII Rule 10 deals with returning a plaint. It says that where a plaint has been presented before a court which has no jurisdiction (territorial or pecuniary), then the plaint will be returned back to plaintiff to enable him to present it before the appropriate court that has jurisdiction to try the case. Order VII Rule 10(2) says that, “on returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it”.

Rejection of a plaint- Order VII Rule 11 talks about rejection of plaint. Where any one of the requirements under Order VII Rule 11 is satisfied, the court is entitled to throw out the case itself by rejecting the plaint. Rule 11(a) talks about a situation where the plaint does not disclose a cause of action. Thus, where the plaint does not disclose a cause of action, that itself becomes a ground for rejecting a plaint. Another important ground is where the suit appears to be barred by any law, such as the Electricity Act, SARFAESI Act or Land Acquisition Act. These acts will specifically say that a suit is barred when a matter is falling within the provisions of this Act. When such a bar is there and a suit has been filed, the existence of the ground itself is enough to reject the plaint. Another such ground is where the court fee has not been paid. Thus, Order VII Rule 11 talks about the grounds on which the plaint can be rejected at the very threshold. At time of rejecting the plaint, the court can only look at the averments made in the plaint and the documents filed along with the plaint. It cannot look into the written statement or the defence taken by the defendant. In this manner, rejection of a plaint is different from the mere return of a plaint.

Documents to be filedOrder VII Rule 14 talks about documents required to be filed with the plaint. It is mandatory for the plaintiff to file all relevant documents at the time of filing plaint. The only leverage given is Order VII Rule 14(2), which says that where the document is not in possession of the plaintiff, he has to specifically state so, and assert that the concerned document will be provided later.

Written Statement – Order talks about written statement. As mentioned before, pleadings include plaint and written statement. While plaint has been dealt with in Order VII, written statement has been dealt with in Order VIII.

Limitation – Order VIII Rule 1 specifically says, “the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence.” Therefore, a limitation has been prescribed by the Act for filing a written statement. The Proviso to this Rule says that the Court may provide a further period of 90 days to file the written statement. This Proviso was brought in via the aforementioned 2002 amendment.

Specific Denial –Order VIII Rule 3 is one of the most important provisions regarding written statement. It says that in a written statement, each denial must be specific. The defendant cannot generally aver that he denies everything stated by the plaintiff. Rather, the defendant must provide facts as to why and on what grounds he is denying the plaintiff’s claim. Order VIII Rule 3 says that, “the defendant must deal specifically with each allegation of fact of which he does not admit the truth.” Thus, it is important for the defendant to provide such particulars. The importance and mandatory nature of Order VIII Rule 4 is mentioned in Badat and Co. vs. East India Trading Co. (AIR 1964 SC 538), at page 544 of the judgment.  

Non – Evasive Denial – The next important provision is Order VIII Rule 4, which talks of evasive denial. Order VIII Rule 4 says, “Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Therefore, the denial cannot be evasive. For example, the plaintiff alleges fraud by giving all the particulars. Now, the defendant cannot give general denial saying all is false. He also cannot give evasive denial by saying that the plaintiff acted on his own will and so there is no fraud. This is an evasive denial because the plaintiff has said a lot of things in his plaint, including the background facts to establish fraud. It is not enough if the defendant just evasively denies it. The defendant has to answer every point or substance that has been highlighted in the plaint.

When Denial Amounts to Admission – Order VIII Rule 5 is also very important. The three provisions – Order VIII Rule 3, 4 and 5 go together. Rule 5 makes it very clear that, “every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.” Therefore, if the denial is not specific, it will virtually amount to an admission. If it amounts to an admission, then the plaintiff can then just substantiate his case and will be given a decree. This is virtually like obtaining an ex-parte decree. Hence, specific and non-evasive denial becomes very important. Specific denial is the only denial that is accepted under the CPC. If this is not done, then the fact is deemed to have been accepted.

Other important provisions related to pleadings –

Set-off Order VIII Rule 6 talks about set-off. Set-off arises only in a suit for the recovery of money i.e. a money suit. Basically, it is a case where the plaintiff has filed a suit for recovery of money, and the defendant says that the plaintiff already owes him money against which he wants to set off the debt that the plaintiff mentions in the suit. The effect of set-off is described in Order VIII Rule 6(2), which says that, “the written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off.” Therefore, the nature of claim made by a set-off is treated to be a plaint and all the rules that are available to a plaint apply.

Counter-claim – Order VIII Rule 6A, which deals with counter-claim, says, “a defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired.” (emphasis added).  A counter claim refers to a claim which the defendant could have made by filing an independent suit against the plaintiff; instead he is doing this through the plaint itself. The scope of a counter claim is broader as compared to a set-off. While set-off is only for recovery of money, counter claim takes into its ambit all types of claims that can be made by the defendant as against the plaintiff. For instance, assume that the plaintiff files a suit for injunction against the defendant. In response, the defendant seeks the reliefs of declaration and possession – such an independent relief against the plaintiff constitutes a counter claim. As between the same parties, a counter claim can be filed by taking into account the cause of action that was available at the time of filing of suit or after the filing of suit but before defendant takes defence (that is, before the written statement is filed). Further, as per Rule 6A (2), “a counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.” This shows that a counter claim is a suit in itself. Thus, virtually, a counter claim is treated as a plaint and will be governed by all the rules that are applicable to a plaint. Consequently, the reply filed by the plaintiff to a counter-claim is in the nature of a written statement. Counter claims have been engineered in this manner to avoid multiplicity of proceedings and divergent judgments between the parties in the same case. The contents of the counter claim are stated in the subsequent rules from Rule 6B onwards.

Thus, to summarize, pleadings are broadly covered from Orders VI to VIII of the CPC. Order VI talks about general rules regarding pleadings. Order VII specifically deals with plaint and Order VIII specifically deals with written statement, also including set off and counter claim.

Justice N. Anand Venkatesh is a sitting Judge of the Madras High Court. The post has been transcribed and edited by Kanu Garg and Tanvi Apte, who are students of NALSAR University of Law and contributors to the Nyaya Blog.

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