Rules For Pleading Cpc

Page 1 of 22

RULES OF PLEADINGS CIVIL PROCEDURE CODE, 1908

SUBMITTED TO:Dr. MEETA MOHINI

SUBMITTED BY: MAITREYA SAHA ROLL NO –1541 B.A L.L.B, 5th SEMESTER

September, 2018

CHANAKYA NATIONAL LAW UNIVERSITY

Page 2 of 22

DECLARATION I hereby declare that the work reported in the B.A.LL.B (Hons.) Project Report entitled “Rules of Pleadings” submitted at Chanakya National Law University, Patna is an authentic record of my work carried under the supervision of Dr. Meeta Mohini. I have not submitted this work elsewhere for any other degree or diploma and am fully responsible and aware of the contents of my project report.

Maitreya Saha Chanakya National Law University, Patna /

/2018

Page 3 of 22

Table of Contents DECLARATION ............................................................................................................................ 2 ACKNOWLEDGEMENT .............................................................................................................. 4 TABLE OF CASES ........................................................................................................................ 5 Objective of Study .......................................................................................................................... 6 Research Questions ......................................................................................................................... 6 Research Methodology ................................................................................................................... 6 Source of Data Collection ............................................................................................................... 6 Scope of the study ........................................................................................................................... 6 CHAPTER-1 ................................................................................................................................... 7 INTRODUCTION .......................................................................................................................... 7 CHAPTER-2 ................................................................................................................................... 9 LEGAL ANALYSIS ....................................................................................................................... 9 CHAPTER-3 ................................................................................................................................. 11 PRESENT LEGAL FRAMEWORK ............................................................................................ 11 CHAPTER-4 ................................................................................................................................. 17 ROLE OF JUDICIARY ................................................................................................................ 17 CHAPTER-5 ................................................................................................................................. 21 CONCLUSION ............................................................................................................................. 21 BIBLIOGRAPHY ......................................................................................................................... 22 Books & Statutes ....................................................................................................................... 22 Weblinks.................................................................................................................................... 22

Page 4 of 22

ACKNOWLEDGEMENT

Though this project has been mostly prepared and presented by me, there are many people who remain in veil and provided support which augmented the expeditious completion of this project. First, I am very grateful to my subject teacher without whose kind support, completion of this project would have become a herculean task for me. She, Dr. Meeta Mohini, made time out of his busy schedule to help me complete this project more so, she provide me with her valuable suggestions about how to and from where to collect relevant and authentic information. I am very thankful to our librarian who provided me with several books on this topic which proved beneficial in completion of this project. Lastly, I would like to acknowledge the contribution of my friends who provided their valuable and meticulous advices which were definitely useful. I also want to convey my sincerest gratitude to my parents for helping me.

MAITREYA SAHA

Page 5 of 22

TABLE OF CASES 

Ajendraprasadji N. Pande & Anr. V. Swami Keshavprakeshdasji N. & Ors



Ami Chand v. Partapa



B.K. Narayana Pillai V. Parmeshwaran Pillai & Anr.



Babu Ram Bhatnagar v. Satish Kumar Rawa



Bhagwati Prasad vs. Shri Chandramaul



Bharat Karsondas Thakkar V. M/s Kiran Construction Co. & Ors



Hanuwant Singh Rawat V. M/s Rajputana Automobiles, Ajmer



Kailash V. Nankhu & Ors.



Kuldip Rai v. Sharan Singh



Lalita Prasad v. Gajadhar



Laxmibai v. Keshrimal Jain



Peethani Suryanarayana v. Repaka Venkata Ramana Kishore



Puwada Venkateswara v. Chindamana Venkata



Rabindra Singh v. Financial Commissioner, Cooperation, Punjab



Ram August Tewari v. Bindeshwari Tiwari



Renu Sharma v. Titan Industries Ltd



Salem Advocate Bar Association (II) v. Union of India



Salem Advocate Bar Association v. Union of India



Salem Advocate Bar Association, Tamil Nadu v. Union of India



Sampat Kumar V. Ayyakannu & Anr.



Sardar Singh v. Krishan Lal Bharti



Satish Construction Co. v. Allahabad Bank



Smt. Rooprani v. Prem Singh



Sneh Gupta v. Devi Sarup



Subodh S. Salaskar v. Jayprakash M. Shah



Sumitra Bai v. Shyam Lal Sen



Sunil Poddar v. Union Bank of India

Page 6 of 22

Objective of Study The sole purpose of carrying out this study is to acquire in- depth knowledge about pleadings in a law suit as it is the foundation of a legal suit and without it, no suit can progress.

Research Questions 

What are the relevant sections relating to pleadings in the Civil Procedure Code?



What are the important principles that the judiciary has set out in relation to pleadings?



What can be changed in the existing law to ensure more efficient outcomes?

Research Methodology A descriptive and doctrinal research methodology was used for this project. Concerned statute and books of renowned authors were looked into for the compilation of the present study. Several websites were looked into for understanding the concept of present study. Moreover various articles and case laws were referred in order to clear the law point at the present time. Referring to all the primary and secondary material mentioned above, the present study has been compiled and presented to the concerned.

Source of Data Collection  PRIMARY SOURCE- provisions of CPC, statutes, precedents.  SECONDARY SOURCE- websites, articles, books, journals etc.

Scope of the study Due to lack of time, researcher’s work is wholly based on doctrinal method. This research will be useful for the purpose of publication.

Page 7 of 22

CHAPTER-1

INTRODUCTION

Before any dispute can be adjusted or decided it is necessary to ascertain the actual points at issue between the disputants. Conceivably this may be done in several ways. Perhaps the simplest is a process of direct questioning of the parties by the arbitrator or judge. Another method is the exchange of written statements in advance of a direct hearing of the parties. Our system calls for the development of issues by the parties themselves in formal manner in advance of the actual trial. This is accomplished by requiring the serving on the opposing party or the filing in court alternately by the parties of pleadings - written instruments wherein are set forth the statements and contentions of each as to the points and facts in dispute. These pleadings are to be distinguished from the lawyer's oral argument or "plea" made to the court or jury at the trial of the case. Originally tinder the common law system the pleadings were oral, but for several centuries they have been written and have become technical legal documents, carefully framed by the attorneys of the parties. The content of these documents and the manner in which they are to be employed in the litigation have become the subject of rules in general of a highly refined nature. Pleading is the name given to the legal science which deals with these rules. The pleadings therefore serve the primary purpose of acquainting the court and the parties with the facts in dispute. They should in so doing point out the actual issues to be settled. Several other purposes may also be served by the pleadings. Thus a Committee of the American Bar Association classified the main purposes to be achieved by the pleadings as follows: (1) to serve as a formal basis for the judgment to be entered; (2) to separate issues of fact from questions of' law; (3) to give the litigants the advantage of the plea of res adjudicata if again molested; (4) to notify the parties of the claims, defenses and cross-demands of their adversaries.' As hereinafter pointed out in the discussion of "functions of Pleading”. Furthermore, pleading is a branch of the law of remedies existing for the enforcement of the substantive jural relations of the parties. The system of pleading developed in the English courts of common law after the Norman Conquest and applied in legal actions in this country until the pleading reforms of the middle and

Page 8 of 22

the latter part of the nineteenth century is commonly called common law pleading. The system of pleading developed in the English courts of chancery and likewise applied in the equity courts in this country is termed equity pleading. Code pleading is the term applied to the reformed system of pleading initiated by the New York Code of 1848 and now in force in some thirty American jurisdictions. But since it developed from the former systems and in many respects continues various details and parts of them, it is necessary to consider the antecedents of code pleading in the other systems. Under Indian system of law, Pleading are covered under Order 6 of Civil Procedure Code. Rule 1 defines pleading, while Rule 2 lays down the fundamental principles of pleadings. Rule 3 to Rule 13 require the parties to supply necessary particulars. Rule 14 and 15 provide for signing and verification of pleadings. Rule 16 empowers a court to strike out unnecessary pleadings. Rule 17 and 18 contain provisions relating to amendment of pleadings. Pleadings do not only define the issues between the parties for the final decision of the court at the trial, they manifest and exert their importance throughout the whole process of the litigation. Pleadings provide a guide for the proper mode of trial. They demonstrate upon which party the burden of proof lies, who has the right to open the case. They also determine the range off admissible evidence which the parties should adduce at the trial. They also lay down limit on the relief that can be granted by the court.

Page 9 of 22

CHAPTER-2

LEGAL ANALYSIS

RELEVANT LEGAL BODIES Pleadings are very important in civil cases. It is the duty of the lawyer to make a proper pleading. Since a considerable percentage of litigants are either illiterate or not conversant with law the duty of the lawyer of becomes more relevant facts of the case from the client. The lawyer has to even to anticipate probable evidence that may be let in. All the details should be comprehended, analyzed and assimilated before drafting the pleadings. A good case may sometimes be lost because of bad drafting. Pleading are intended to put forth the case of the parties before court. Pleadings constitute the basis for the litigation. By the pleadings, the point at issue between the parties should be clear and ambiguous.1 The opposite party is made known of the case of the other party by the pleadings. While drafting the pleadings there should be no attempt to concealment of the relevant facts. Astuteness in drafting is necessary.2 But it should not go to the extent of putting the opposite party to surprise. From the pleadings, either party should be able to know what his opponent’s case is and what case he has to meet. The parties should get a fair idea from the pleadings as to what disputes involved in the case effectually and completely. Proper pleadings would enable the court to raise proper issue for trial. It would enable the parties to adduce proper evidence. It would enable the court to decide the case effectually and completely. Proper pleadings would also avoid delay and minimize the expenditure of litigation.3 It is the duty of the lawyer to ensure that correct facts are brought before the court. He should ensure that wrong facts, calculated to mislead the court are not pleaded. Judicial Pronouncements are effect to the effect that without proper pleadings, any amount of evidence is of no use and that such evidence shall not be looked into by the court. 4

1

AIR 1950 PC 90. AIR 1976 SC 712. 3 AIR 1941 PC 93. 4 AIR 1975 KER 150. 2

Page 10 of 22

The Rules regarding pleading are provided in the Code of Civil Procedure Code. Certain other statues also provide for particular facts to be pleaded. For example: Specific Relief Act, section 16(c) and 22. Certain defense would be available to a defendant, in the light of the provisions of a statute. Such defense should not be omitted to be taken. The client would be able to supply only facts. It is the duty of the lawyer to put forth the relevant facts in the pleadings so as to make a foundation for a claim of defense, taken into account the relevant provision of law. The role of the lawyer is very important in that context. Rule 3 of Order II CPC provides for joinder of cause of action in the same suit. Rule 4 of Order II stipulated what all causes of action can be joined with a suit for recovery of immovable property. Order VI CPC provides for the pleadings generally. Order VII deals with the plaint. Order VIII deals with written statement, set off and counter claim. Every pleading shall contain, and contain only, a stamen in a concise form of the material facts on which the party pleading relies for his claim or defense, nut not the evidence by which they are to be proved. The pleading shall be divided into paragraphs and numbered consecutively. Dates, sums and numbers shall be shown in figures as well as in words. If the party relies on any misinterpretation, fraud or breach of trust, willful default or undue influence, the facts constituting the same should be specifically pleaded. The burden of proof of misinterpretation, frauds and undue influence is on the party who alleges the same.5 Any condition precedent, the performance of occurrence of which is intended to be contested, shall be distinctly be specified in the pleadings. No pleading shall except by way of amendment raise any new ground of claim or contain any allegation of fact inconsistent with the previous ruling of the party pleading the same. The provision for amendment of pleadings is contained in Rule 17 of Order VI. It is true that the court may allow amendment of pleadings at any stage. But after the amendment of CPC by ACT 22 of 2002, the scope of Rule 17 is restricted. Pleading should not be scandalous, frivolous or vexatious. It should not contain matters which would tend to prejudice, embarrass or delay the fair trial of the suit of which is otherwise an abuse of the process of the court. The court has jurisdiction to strike out such pleadings or portion of the same or to direct the parties to amend the pleadings. 5

1986 KLT S.N.38.

Page 11 of 22

CHAPTER-3

PRESENT LEGAL FRAMEWORK Presumptions of law Neither party need in any pleading allege any matter of fact which the law presumes in his favor or as to which the burden of proof lies upon the other side unless the same has first been specifically denied (e.g., consideration for a bill of exchange where the plaintiff sues only on the bill and not for the consideration as a substantive ground of claim). Rules regarding pleadings: The rules regarding pleadings are as under: 1. A pleading must state facts and not law. 2. It must contain only material facts on which the party pleading relies for his claim or defense. 3. It must state only the facts on which the party pleading relies for his claim or defense, and not the evidence by which they are to be proved. 4. The facts must be in the form of a concise statement but in aiming at conciseness, precision should not be sacrificed. The pleadings, when necessary, shall be divided into paragraphs, numbered consecutively and each allegation being, so far as is convenient, contained in a separate paragraph. Dates, sums and figures shall be expressed in figures. 5. Allegations in anticipation of the opponent’s answer should not be made. The pleading should be confined to what is material at the present stage of the suit. 6. Facts necessary for the enforcement of a legal right or duty must be mentioned. Thus in a suit for breach of contract on account of the negligence of the defendant, it has to be stated specifically what kind of duty the defendant owed to the plaintiff and how was he negligent. 7. Performance of a condition precedent being implied in every pleading it need not be alleged; the opposite party must specify distinctly the conditions, the performance or occurrence of which he intends to contest.

Page 12 of 22

8. Where the contents of any documents are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof, are material. 9. Facts which the law presumes in one’s favor or as to which the burden of proof lies upon the opponent need not be pleaded. 10. The party should not plead conclusions of law. The pious obligation of a Hindu son to pay his father’s debts need not be pleaded. But foreign law and certain customs and usages are not judicially taken notice by courts and must be pleaded as facts. 11. Legal pleas such as estoppel, limitation and res-judicata may be pleaded. 12. In case where the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, particulars shall be stated in the plaint. The person verifying the pleading shall also furnish an affidavit in support of his pleadings. Particulars to be given where necessary In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with date and items if necessary) shall be stated in the pleading. The most challenging problem facing the administration of justice in India is the backlog and resulting delay in criminal and civil cases at every level, from the lower courts to the Supreme Court. One of the provisions which contribute to it is provision related to amendment of pleadings given in Order VI, rule 17 of the Code of Civil Procedure. Order VI, Rule 17 of the Code of Civil Procedure deals with amendment of pleadings. Pleadings are the case of the Plaintiff or the Defendant in Plaint and Written Statement respectively. An amendment can be by way of altering something, modifying something, deleting something.

Page 13 of 22

Amendment of pleadings The Court may at any stage of the proceedings allow both party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. 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 trial. Amendment and its objectives As stated earlier, essential details have to be mentioned in the plaint and unnecessary details have to be struck out. The paramount object behind Amendment is that the courts should try the merits of the cases 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. Ultimately, the courts exist for doing justice between the parties and not for punishing them, and they are empowered to grant amendments of pleadings in the larger interest of doing full and complete justice to parties Provisions for the amendment of pleading are contained to promote end of justice and not for defeating them. Further in the leading case of Cropper v. Smith, the object underlying the amendment of pleadings has been laid down by Bowen, L.J. in the following words: “I think it is wellestablished principle that the object of the courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights”. Amending petitions delays justice In a major judgment that aims to thwart attempts by a large section of litigants locked in civil cases to delay proceedings for their benefit, the Supreme Court has said that the provision in the Civil Procedure Code (Order VI Rule 7) that allows improvement in averments could be done away with, as “this is the most misused” law for “dragging the proceedings indefinitely”. The already overloaded civil courts are compelled to defer hearings, which causes delay in disposal of disputes, the court said. Applications for amendment lead to further delay, it said.

Page 14 of 22

Civil courts must adhere to certain guidelines while granting adjournments, the court said. And they must assess whether the plea is counter-productive to speedy dispensation system. It must be decided whether the plea for amendment to the petition is necessary for determining the real disputed question. The court must exercise discretion while assessing the “potentiality of prejudice or injustice likely to be caused to the other side” and award costs accordingly. A bench of justices Dalveer Bhandari and Harjit Singh Bedi also said that discretion must be used judiciously and the courts concerned must compensate the other party for “unnecessary delay and inconvenience caused to him”. The purpose of imposing exemplary costs, the Bench explained, was to discourage mala fide amendments designed to delay legal proceedings. It compensates the other party for avoidable expenses on the litigation, which had to be incurred by him for opposing the amendment and lastly “to send a clear message that the parties have to be careful while drafting the original pleadings”. General Principle: The court discussed the principles governing the Amendment of pleadings and held that "It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations." Guidelines for Amendment of Pleadings 1. Cause of action in a suit cannot be altered by amendment of pleadings. The cause of action will not be allowed to be substituted in totality and the reason being that the cause of action is the very basis of a suit. If a new/distinct cause of action is there, the parties are always free to go to the Court with such cause of action in an independent suit. But there can be cases where the cause of action has got further aggravated by any further violation or some continuing cause of

Page 15 of 22

action which can be joined in the present suit due to subsequent change of circumstances. In such cases, the Court in its discretion is free to allow the amendment as that would not be a case of substitution of cause of action. 2. The Amendment of pleadings shall be allowed to bring or to clarify all matter in issue before the Court. The matter in issue is essential for the determination of the suit and therefore amendment can be made. Similarly, relief also can be amended. In such cases, if the amendment is not allowed, the bar of res-judicata or as the case may be, the bar of Order II Rule 2 of the Code of Civil Procedure, 1908 may apply. Therefore, the Court should try to bring a balance between the injustice that might be caused to the applicant in case of refusal to grant relief and at the same time, in case of allowing the application, the requirement of injustice caused to the other party in the present suit.6 3. If a right has already accrued in pleadings to the opposite party, then the Court shall normally be reluctant to allow the Amendment of pleadings. However, in such cases, if the loss that will be caused to the other party can be adequately compensated for by cost then amendment shall be allowed.7 4. When the court hears the application for Amendment of pleadings it does not go into the merits of the case. While considering the prayer for amendment of the pleadings, the Court cannot go into the issue of merits vis-à-vis maintainability of the suit, but can consider only whether the amendment is necessary to determine the real controversy between the parties. 5. If there is an undue delay in the filing of the application for amendment, without there being sufficient cause shown to condone the delay, then the Court may normally not allow the amendment. 6. Change of law: The law can be a change of substantive law either prospective or retrospective. If it is a prospective change then it normally not effect cause of action and matter in issue in the pending suit and therefore, amendment is not needed. Whereas it is a retrospective change, amendment might be needed and shall be allowed. If it is a change of procedural law then

6 7

2010 (4) KLT 684. Ibid.

Page 16 of 22

normally pleadings will not be allowed to be amended but the court shall itself take note of the change of procedural law. Further, Order VI rule 18 of the Code of Civil Procedure, 1908 casts a duty on the party to carry out the amendment, if allowed by the Court, within the time limited for the said purpose by the order and if no time is thereby stated, then within 14 days from the date of the order. In case the party fails to carry out amendment within the said period, he shall not be permitted to carry out the amendment after the expiration of time limited, unless the time is further extended by the Court.

Page 17 of 22

CHAPTER-4

ROLE OF JUDICIARY

In a setup like ours, where there is no strict separation of powers, judiciary can step into legislature’s shoes if situations demand so. Accordingly, whenever there are lacunae or gaps left in by legislature, the judiciary fills that gap so that justice is met in all probable situations. Judicial Law Making (Important Legal Principles Set Out By Judiciary): In Bhagwati Prasad v. Shri Chandramaul8: Supreme Court ruled out that If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matter relating to the title of both parties to the suit was touched, tough indirectly or even obscurely in the issues, and evidence has been led about them then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. In Lalita Prasad v. Gajadhar9, it was observed that a pleading must not set forth a public statute, for the court is bound to take judicial notice of it. It should set out only facts, and the relief sought, and not the law or the particular section of the statute under which the claim is made. Nor should the parties plead conclusions of law or of mixed law and fact. It is for the court to declare law arising upon the facts before it. The parties should state only the facts on which they rely for their claim or defence.

8 9

AIR 1966 SC 735. AIR 1933 All 235, also Syed Dastagir v. Gupalkrishna, (1999) 6 SCC 337.

Page 18 of 22

Guidelines for amendment of pleadings as set by judiciary in various cases: In Hanuwant Singh Rawat v. M/s Rajputana Automobiles, Ajmer10, the Rajasthan High Court summarised the legal position as under:(i)

That the amendment of pleadings should ordinarily be allowed by the Court, once it is satisfied that the amendment is necessary for the just and proper decision of the controversy between the parties;

(ii)

The amendment of pleadings should not ordinarily be declined only on the ground of delay on the part of the appellant in seeking leave of the Court to amend the pleadings, if the opposite party can suitably be compensated by means of costs etc. Even inconsistent pleas can be allowed to be raised by amendment in the pleadings;

(iii)

However, amendment of pleadings cannot be allowed so as to completely alter the nature of the Suit;

(iv)

Amendment of the pleadings must not be allowed when amendment is not necessary for the purpose of determining the real question(s) in the controversy between the parties;

(v)

The amendment should be refused where the plaintiff’s Suit would be wholly displaced by the proposed amendment;

(vi)

Where the effect of the amendment would be to take away from the defendant a legal right which has accrued to him by lapse of time or by operation of some law;

(vii)

The amendment in the pleadings should not be allowed where the court finds that amendment sought for has not been made in good faith or suffers from lack of bona fides;

(viii) And ordinarily, the amendment must not be allowed where a party wants to withdraw from the admission made by it in the original pleadings.” Similarly, in the case of Peethani Suryanarayana v. Repaka Venkata Ramana Kishore11, it was held that the Courts hold the power to allow such amendment provided: (a) Application is

10 11

(1993) 1 WLC 625. (2009) 11 SCC 308.

Page 19 of 22

bonafide (b) Does not cause injustice to the other side (c) Does not affect the right(s) already accrued to the other side. Amendment should not change the basic structure of the Suit:In Sampat Kumar v. Ayyakannu & Anr.12,the Supreme Court held that any amendment seeking to introduce a cause of action, which arose during pendency of the Suit, may be permitted in order to avoid multiplicity of Suit. But, it should not change the basic structure of the Suit. More so, the court should be liberal to allow amendment at the time of pre-trial of a Suit but must be strict and examine the issue of delay where the application for amendment is filed at a much belated stage of commencement of the trial. In Bharat Karsondas Thakkar v. M/s Kiran Construction Co. & Ors.13, the Supreme Court held that amendment is not permissible if it changes the nature of suit. In Ajendraprasadji N. Pande & Anr. v. Swami Keshavprakeshdasji N. &Ors.,14the 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. While deciding the said case, the Apex Court considered a large number of its earlier judgments particularly B.K. Narayana Pillai V. Parmeshwaran Pillai & Anr.15; Kailash v. Nankhu & Ors.16; Baldev Singh & Ors. v. Manohar Singh & Anr.17, wherein it had been held that the delay of its own, untouched by fraud is not a ground for rejecting the application for amendment. The provisions are procedural, and therefore, should be construed liberally to advance the case of justice and not to retard or to defeat justice.

12

(2002) 7 SCC 559. 2008 AIR SCW 3192. 14 2007 AIR SCW 513. 15 (2001) 1 SCC 712. 16 (2005) 4 SCC 480. 17 (2006) 6 SCC 498. 13

Page 20 of 22

LANDMARK CASE: Salem Advocate Bar Association v. Union of India (2005) 6 SCC 344.18 The Honorable Judges presiding over the case were Y.K. Sabharwal, D.M. Dharmadhikari and Tarun Chatterjee. The subject is basically related to Constitution and is a case of civil nature. In this case there were certain amendments made to Code of Civil Procedure, 1908 by the Amendment Acts of 1999 and 2002. Written statement : Order 8 Rules 1 and 10 of Code of Civil Procedure, 1908: Order VIII Rule 1, as amended by Act 46 of 1999 provides that the defendant shall within 30 days from the date of service of summons on him; present a written statement of his defence. The rigour of this provision was reduced by Amendment Act 22 of 2002 which enables the Court to extend time for filing written statement, on recording sufficient reasons therefore, but the extension can be for 90 days to the maximum. The question was whether the Court has any power or jurisdiction to extend the period beyond 90 days. The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in Order VIII Rule 1. The point for consideration was whether the provision providing for maximum period of ninety days is mandatory and, therefore, the Court is altogether powerless to extend the time even in an exceptionally hard case. It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments has provided for the maximum period within which the written statement is required to be filed. Held: It was held that the limitation provided under Rule 1 is only directory and finally Court empowered to extend time limit in exceptional cases.

18

Shaikh Salim Haji Abdul Khayumsab v. Kumar.

Page 21 of 22

CHAPTER-5

CONCLUSION

Pleadings provide a guide for the proper mode of trial. It basically establishes the issues between the parties for the final decision of the court at the trial, they manifest and exhibit their significance throughout the whole process of the litigation. Furthermore, it even demonstrates upon which party the burden of proof lies and who has the right to open the case. They also determine the range off permissible evidence which the parties should adduce at the trial. Moreover, lay down limit on the relief that can be granted by the court. Thus, pleadings form an integral and the most vital part of the entire law suit. However it should be noted, the Court may at any stage of the proceedings permit boththe parties to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. 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 trial. This provision for amendment of the plaint is contained in Rule 17 of Order VI. Various case laws have been discussed in this project which specifically deal with amendment of pleadings. For example in the case Hanuwant Singh Rawat V. M/s Rajputana Automobiles, Ajmer it was held Amendment should not change the basic structure of the Suit and the same was even held in Bharat Karsondas Thakkar V. M/s Kiran Construction Co. &Ors. Moreover, in the case of Sampat Kumar V. Ayyakannu&Anr the court laid down the guidelines for amendment of pleadings. Furthermore, in the case of Lalita Prasad v. Gajadhar, it was observed that a pleading must not set forth a public statute, for the court is bound to take judicial notice of it. It should set out only facts, and the relief sought, and not the law or the particular section of the statute under which the claim is made. Nor should the parties plead conclusions of law or of mixed law and fact. It is for the court to declare law arising upon the facts before it. The parties should state only the facts on which they rely for their claim or defence.

Page 22 of 22

BIBLIOGRAPHY Books & Statutes  Tandon M. P., The Code of Civil Procedure, 1908, 26th ed., Allahabad Law Agency, Faridabad, 2008.  Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, Lucknow, 2014.  Mulla, The Code of Civil Procedure, 17th ed., LexisNexis Butterworths Publications, Delhi, 2007.  Pandit U. M., Commentary on Civil Procedure Code, Unique Law Publications, Ahmadabad, 2009.  Sarkar, Code of Civil Procedure, 11th ed., Wadhawa Publications, Nagpur, 2006.  The Code of Civil Procedure, 1908.

Weblinks  http://www.assignmentpoint.com/arts/law/the-code-of-civil-procedure-1908-lecture05.html  http://research.lawyers.com/process-serving.html  http://www.indianlawcases.com/The.Code.of.Civil.Procedure.1908-742  www.manupatra.com