UNIT-2

??????
 SUITS
May relate to

Movable immovable

Based on Contract Based on tort

Matrimonial Suit for Accounts

Must be instituted lowest grade competent court

 Intro…..
• Sec. 15 to 21 deals ….. Suit is to be instituted
• …regulate the forum ……
• Place of suing …….which court …. Relating to jurisdiction
 Object……

• To reduce the burden on the higher court

• To afford convenience to the parties
• And witnesses who may be examined in such suits
 Cont….

• Competency means….
• Jurisdiction …...
• Pecuniary …& Territorial….
• Basing on suit value …. pecuniary
 Sec.15
Lowest Competent Grade……
Competent……..
Having jurisdiction……
…………to try……
…..also indicates……
Pecuniary jurisdiction
 Territorial
Jurisdiction

Immovable Movable
Compensation Other suits
Property Property
for wrong (Sec. 20)
(Sec. 16 – 18) (Sec.19)

Where it Either in any

situates Option of the Place Cause of
plaintiff EX:
EX: Partition defamation Action
foreclosure
Immovable ……

For
partition……

For Sale/
recovery….. foreclosure….

Specific Mesne
performance…. profit…..
Acc…. to Sec.16
Action against res…../Property…….

Shall be brought ……

Where res……

Situated………

Property means………..Situated in India

Sec.17..

• When two courts…..have jurisdiction

• …can choose …..the forum
Sec.18
Place of institution of suit
where local limits of jurisdiction
……..uncertain
 Sec.19…..suit….
for compensation……

for wrong done to the person or to movable property

defendant resides,

or carries on business,

or personally works for gain

the suit may be instituted ……..at the option of the plaintiff …..
 Sec. 20….

• Where……..defendant…..

• actually and voluntarily resides,

• or carries on business,

• or personally works for gain

Harshad Chiman Lal Modi 
v.
DLF Universal and Anr.
(2005) 7 SCC 791
Facts

The appellant..... entered into a 'plot buyer’

......for purchase ..... residential plot

..... Gurgaon, Haryana.

 ......the agreement ..... Delhi.

The Head Office of respondent.... situated in Delhi.

Payment was........ Delhi

Cont....
..... Payment .... in instalments as per the schedule to the
agreement

... Res.. unilaterally and illegally...... cancelled the agreement

.......had not paid dues ......towards construction of Modular

House

..........objected to the illegal action

 and sent a legal notice through an advocate

to carry out his part of the contract

Cont.....

.......replied that the agreement had been

cancelled
and nothing could be done in the matter
.....filed a suit......
Before...Delhi Court....
Claim.....

ofor declaration,
o specific performance of the agreement,
o for possession of the property
oand for permanent injunction.
Cont.....

• .....that there is a valid and existing contract

• is bound to abide by the contract,

• perform its part of the contract by withdrawing the letter

• permanent injunction restraining .... from allotting, selling,

transferring, alienating ......

• directing him to hand over vacant and peaceful

possession
During.....

def....... filed an application under Order 6,

Rule 17
.......seeking amendment in the written
statement
... by raising an objection
.......as to jurisdiction of Delhi Court to
entertain the suit
Plea.....

• ..... stated that the suit was for recovery of immovable

property
• ......situated in Gurgaon District.
• U/ Sec. 16 ....
• ....suit for recovery of property could only be instituted
within the local limits of whose jurisdiction the property
was situated.
• Since the property was in Gurgaon, Delhi Court had no
jurisdiction in the matter.
Application.....

...... was allowed

......written statement was permitted to be
amended
Issue...framed......
Whether Delhi Civil court has jurisdiction to try
and entertain the present suit?
Trail......order.....

........upheld the contention of the def.

and ruled that Delhi Court had no jurisdiction to

try the suit.

The plaint was, therefore, ordered to be returned

to the plaintiff for presentation to the proper court.
......

Being aggrieved by the said order

....... the appellant approached
..... High Court by filing Civil Revision Petition
Dismissed.......
Before Supreme.....

appellant contended ....

that the courts below have committed an
error of law
as well as of jurisdiction
 in allowing the amendment in the written
statement and
 in holding that Delhi Court had no
jurisdiction.
Cont......

Clause 28 of the agreement reads thus;

"The Delhi High Court or Courts subordinate

to it, alone shall have jurisdiction in all matters
arising out of touching and/or concerning this
transaction."
Res.....plea
 ..........the suit relates to specific performance of agreement relating
to immovable property.

 ........In accordance with the provisions of Section 16...........

• .........such suit can be instituted where the immovable

property is situate.

• ......."Section 16.Suits  to  be  instituted  where  subject-

matter situate......
Cont.....

Admittedly the property is situate in Gurgaon

(Haryana).
 Delhi Court, therefore, ....
has no jurisdiction
 to entertain the suit
 for specific performance of agreement of
purchase of a plot - immovable property - situate
outside Delhi.
Cont.....

....... If the court had no jurisdiction, 
parties by consent cannot confer 
jurisdiction on it.
Section 16 thus recognizes ...
a well established principle
that actions against res or property should be brought in
the forum where such res is situate.
A court within whose territorial jurisdiction the property is
not situate has no power to deal with and decide the rights
or interests in such property
Cont.....

a court has no jurisdiction over a dispute in which it

cannot give an effective judgment.

the parties had agreed that Delhi Court

alone had jurisdiction in the matters arising out of the

transaction has also no force.
Finally.......

Such a provision...... would apply to those

cases
 where two or more courts have jurisdiction to
entertain a suit and
 the parties have agreed to submit to the
jurisdiction of one court.
......deserves to be dismissed and is
accordingly dismissed.
Case-law

New Moga Transport Company,  
Vs.
United India Insurance Co. Ltd. and Ors
A I R 2004 S C 2154
Facts.....

• ......had purchased certain articles ....

• ........ Material was booked with New Moga Transport Co
• for transportation to Barnala.
• The goods were loaded in truck
Cont.....

• On account of a fire
• which took place allegedly due to electric short- circuiting
• there was destruction of whole of the materials.
Cont....

• .......claimed that he had suffered loss and

• ..........lodged a claim for a sum of Rs.5,10,000/-
• Since nothing was paid
• only a non-delivery of goods certificate was issued
Cont…

• ,,,,,, settled the claim for a sum of Rs.4,63,516/-

• on the basis of the surveyor's report
• and the amount was paid ...... due receipt was obtained.
 Cont….

• In the suit ......a specific plea

• ......that the Court at Barnala had no jurisdiction to deal with
the suit
• With reference to the consignment note,
• it was submitted that ……
• Court at Udaipur alone had jurisdiction
 Cont....
• trial Court did not accept the plea
• first Appellate Court upset the verdict of the
trial Court.
• By the impugned judgment
• the High Court restored the judgment of the
trial Court
• and held that the plaintiffs were entitled to
relief and Court at Barnala had jurisdiction.
 Plea of ......S.C

• High Court.....
• clearly over-looked
• the fact that the parties by an agreement have fixed a
particular Court .... has the jurisdiction.
• Without any plausible reason or basis
• the High court upset the decision of the first Appellate
Court.
 Undisputedly......

• “The Court at Head office city shall only be

the jurisdiction in respect of all claims and
matters arising under the consignment at
the goods entrusted for transport".
• at the top of the consignment note the
jurisdiction has been specified to be with
Udaipur Court.
Cont….

• there is clear exclusion of the Courts other than the chosen one and,
• therefore, the suit could not have been entertained at any other
place.
Res.....plea....

• consignment note was not clear

• ..... "the Court at Head Office city shall only be the jurisdiction in
respect of all claims and matters arising under the consignment at
the goods entrusted for transport".
• in view of the vague indication of the court relating to jurisdiction the
High Court has rightly interfered
Acc to S.C.....

• Section 20 of CPC reads as.......

• Explanation - A corporation shall be deemed to carry on business at

its sole or principal office in (India) or, in respect of any cause of
action arising at any place where it has also a subordinate office, at
such place."
Cont….

• The Explanation applies to a defendant which is a Corporation which

term would include even a company.
• The first part of the Explanation applies only to such Corporation
which has its sole or principal office at a particular place.
Cont…..

• In that event, the Court within whose jurisdiction the sole or principal
office of the company is situate will also have jurisdiction
• inasmuch as even if the defendant may not actually be carrying on
business at that place, it will be deemed to carry on business at that
place because of the fiction created by the Explanation.
Cont…

• "in respect of any cause of action arising at any place where it has
also a subordinate office".
• Above being the factual and legal position, the inevitable conclusion
is that the High Curt was not justified in upsetting the order of First
Appellate Court. It is not a case where the chosen Court did not have
jurisdiction.
FINALLY,......

• Accordingly, .....set aside the judgment of the High Court and restore
that of the first Appellate Court.
......

• The Court at Barnala shall return the plaint to the plaintiff with
appropriate endorsement
• under its seal
• which shall present it within a period of four weeks from the date of
such endorsement of return before the proper Court at Udaipur.
Case-law

Union of India
Vs
Oswal Wollen Mills Ltd.
AIR 1984 SC 1264
Facts…

• Company Regd. Office- Ludhiana (Punjab)

• Petition filed- Calcutta H.C
• …H.C granted – exparte ad interim relief
• Before S.C
• Set aside pet. Against……
s.c…

• …..has not only disapproved

• but strongly deprecated the practice & increasing tendency
• On the part of the litigants of crossing a forum
• Which may oblige them by entertaining suits or petitions
Cont…

• Though they have no jurisdiction in the matter

• Set aside the order
• ..further…..the action was taken as a part of maneuvering
legal battle.
Case Law

Patel Roadways Limited, Bombay
 vs
 Prasad Trading Company  
 1991 SCR (3) 391 
Issue

Whether parties entitled to agree that only a

certain court would have jurisdiction?
 Facts…

 Appellant
………. carries on the business of a carrier and transports
goods on hire.
It has its principal office at Bombay
and branch offices at various other places like…Tamilnadu,
Madras etc…
 Cont….
Respondent…..
is a dealer in cardamom
entrusted a consignment of 851 kilograms of
cardamom to the appellant
at its subordinate office at Bodinayakanur in Tamil
Nadu
…..to be delivered at Delhi.
 Cont….

• After the goods had been transported by the

appellant
• and kept in a godown at Delhi
• the same got destroyed
• and damaged in a fire
• as a result ………the consignee refused to take
delivery
 Suit….
respondent instituted a suit in the Court of
Subordinate Judge, Periakulam
within whose territorial jurisdiction
the subordinate office of the appellant
where the goods were entrusted for transport is
situate
for damages
alleging that the fire was due to the negligence
and carelessness on the part of the staff of the
appellant
 Appellant …..
• …….plea in its defence that
• in the contract entered into between them
• the parties had agreed that
• jurisdiction to decide any dispute between them
• would be only with the courts at Bombay
Trial court…
• This plea was repelled by the trial court
• Before H.C….
• Challenge has failed
• Now before Supreme Court….
• Appeal…..
 Before SC
• urged by the appellant that
• the courts at Bombay also had jurisdiction
• to entertain a suit arising out of the contract
between the parties
• in view of the Explanation to Section 20 of the
Code
• inasmuch as the principal office of the
appellant was situated in Bombay
Section 20

• Other suits to be instituted

• where defendants reside or cause of action arises:
• Subject to the limitations aforesaid, every suit shall be
instituted in a Court within the local limits of whose
jurisdiction :-
• (a) the defendant,
• or each of the defendants where there are more than one,
• at the time of the commencement of the suit,
• actually and voluntarily resides,
• or carries on business, or personally works for gain; or
Cont…

• any of the defendants, where there are more than one, at

the time of the commencement of the suit, actually and
voluntarily resides, or carries on business, or personally
works for gain,
• provided that in such case
• either the leave of the Court is given, or the defendants
who do not reside, or carry on business, or personally
work for gain, as afore- said, acquiesce in such institution;
or
 Cont…
• (c) the cause of action, wholly or in part, arises.
• Explanation:- A corporation shall be deemed to
carry on business at its sole or principal office
in India or 
• in respect of any cause of action arising at any
place where it has also a subordinate office, at
such place."
Qusetion…

• whether in this suit the court at Bombay

also had jurisdiction apart from the courts
within whose jurisdiction the goods were
entrusted to the appellant for purposes of
transport?
Opinion of SC

• that the courts at Bombay ……. did not at all have

jurisdiction
• and consequently the agreement between the parties
conferring exclusive jurisdiction on courts at Bombay is of
no avail.
Interpretation….

• Clauses(a) and (b) of Section 20 inter alia refer to a court

within the local limits of whose jurisdiction the defendant
inter alia "carries on business". 
• Clause (c) on the other hand refers to a court within the local
limits of whose jurisdiction the cause of action wholly or 
in part arises.
• It has not been urged ……… on behalf of the appellant that
the cause of action wholly or in part arose in Bombay
 Cont….

• The words "at such place" occurring at the end of

the Explanation and the word "or" referred to
• the court within whose jurisdiction it has a
subordinate office which alone shall have
jurisdiction "in respect of any cause of action arising
at any place where it has also a subordinate office".
 Cont….

• It is true that, normally, under clauses (a) to (c), the plaintiff has a choice
of forum and

• cannot be compelled to go to the place of residence or business of the

corporation

• and can file a suit at a place where the cause of action arises.
Finally..

• this section does not create any practical or undue

difficulties or disadvantage either to the plaintiff or a
defendant corporation
• The above interpretation would preclude him from filing a
suit in that place of business common to both parties
• and compel him to go to a court having jurisdiction over the
place where the cause of action has arisen
• Appeal dismissed.
Section 21

OBJECTIONS 
TO
 JURISDICTION
 Objection as to…..

• Fundamental rule….
• Decree of a court without jurisdiction…..
• Nullity ……
• Sec. 21 … protect honest litigants & avoid
harassment
 Cont…

• U/Sec. 21 (1) …… no objection as to the place

of suing
• Will be allowed by appellate / revision court
unless
• Objection was taken
• First instance
• Before settlement of issues
• Consequent failure of justice
CASE LAW

Mantoo sarkar
Vs
Oriental Insurance company ltd
(2009) 2 SCC 244
??????

Accident having taken place at Bareilly

 The bus belonging to Gwalior  depot of the Madhya Pradesh

Road Transport Corporation,

The office of the owner of the truck being at Gurgaon

Office of the insurance company being at Delhi

Case filed at the Tribunal at Nainital

Interpretation
• Section 166 (2) of the Motor Vehicles Act, 1988 in regard to
territorial jurisdiction of a Tribunal is the question involved
herein.

• Section 166: Application for compensation

Cont..

• 166(2)….. shall be made, at the option of the claimant,

• either to the Claims Tribunal having jurisdiction over the area in

which the accident occurred

• or to the Claims Tribunal within the local limits of whose jurisdiction

the claimant resides  or carries on business or within the local

limits of whose jurisdiction the defendant resides 

Facts…
 Appellant had been travelling as a passenger in a bus,

 belonging to Madhya Pradesh Road Transport Corporation.

 It met with an accident in the town of Faridpur in the District of

Uttar Pradesh having collided with truck
Cont….

• Appellant suffered grievous injuries.

• First Information Report was lodged
• Respondent has a branch office at Nainital.
Appellant
• ………. working as a skilled migrant seasonal agricultural labourer.
• He had been earning his livelihood at the relevant time by
performing his job as a labourer in the work of extracting sand
gravel from a river named `Hola River' near Beri Pada, Lalkuan, Dist.
Nainital, Uttaranchal.
• He is said to have been living for a long time at Pilibhit in the State
of Uttar Pradesh.
• Indisputably, after he remained in the district Hospital at Bareilly as
an indoor patient up to 28th July, 2003, he was shifted to Prabhakar
Hospital in Pilibhit.
• He underwent several operations.
 Claim…

• Appellant filed a claim petition before the Motor Accident Claims

Tribunal, Nainital claiming a sum of Rs.23,90,000/-
Question

Respondent raised objection was lack of territorial

jurisdiction on the part of the Tribunal.
Tribunal order…..
• That the jurisdiction conferred on it, having regard to sub-section
(2) of section 166 of the M.V. Act is wide and the insurance
company having a branch office at Nainital, it had territorial
jurisdiction to determine the claim petition.
Appeal before HC

• It is a well settled position of law that

• …….the claim petition can only be entertained and filed before a

court having the territorial jurisdiction to hear the matter
Cont…

• The claimant cannot take the matter to different State

• on the pretext that his case would be disposed of expeditiously in

that State or District

• without having the territorial jurisdiction.

Order..

• On the basis of the said finding

• it was held that Motor Accident Claims Tribunal, Nainital  had  no 
territorial jurisdiction to entertain the said claim petition.
S.C……

• The said Act is a special statute.

• The jurisdiction of the Tribunal having regard to the terminologies

used therein must be held to be wider than the civil court.

• A claimant has a wide option. Residence of the claimant also

determines jurisdiction of the Tribunal.
Cont.…
• Appellant had been a resident of Pilibhit.

• It is in the State of Uttar Pradesh.

• He being a migrant labourer accepts job wherever he gets and

resides there.

• He, admittedly, had been working in Nanital district and residing

there during the period of accident.
Cont.…
• No doubt the Tribunal must exercise jurisdiction having regard to
the ingredients laid down under sub-section (2) of Section 166 of
the Act.
• Section 169 of the M.V Act, the Tribunal, subject to any rules, may
follow a summary procedure
• and the provisions of the Code of Civil Procedure under the Act has
a limited application
• but in terms of the rules `save and except' any specific provision
made in that behalf,
• the provisions of the Code of Civil Procedure would apply.
Cont.…

• An appellate court shall not, having regard to the provisions

contained in sub-section (1) of Section 21 of the Code of Civil
Procedure,

• entertain an appeal

• on the ground of lack of territorial jurisdiction on the part of the

court below

• unless he has been prejudiced thereby.

 Cont.….

• The Tribunal is a court subordinate to the High Court.

• An appeal against the Tribunal lies before the High Court.

• The High Court, while exercising its appellate power, would follow the
provisions contained in the Code of Civil Procedure or akin thereto.
Cont…

• In view of sub-section (1) of Section 21 of the Code of Civil

Procedure,

• it was, therefore, obligatory on the part of the appellate court

• to pose unto itself the right question, viz., whether the respondent
has been able to show sufferance of any prejudice
Cont…

• With reference to objections relating to territorial jurisdiction,

• Section 21 of the Code enacts that no objection to the place of suing
should be allowed by an appellate or revisional court
• …..unless there was a consequent failure of justice
Finally….

• For the reasons aforementioned,

• the impugned judgment cannot be sustained.
• It is set aside
• accordingly and the order of the Tribunal is restored.
• The appeal is allowed
Case – Law

Nandini Chatarjee
V.
Arup Hari Chatarjee
AIR 2001 Cal 26
Cont...

• Prl. explained.......

Mere apprehension is not a ground of transfer

TRANSFER

OF

PROCEEDINGS
Sections 22 to 25

• ……..enact law
• as regards transfer
• and withdrawal of suits, appeals
• and other proceedings from one Court to another Court.
Section 22

Indicates ……the power to transfer ….. Proceedings

……discretion of court
…..should be exercised judicially
Scope

No order of transfer ought to be made

Unless the court is satisfied
 ……such order is absolutely necessary…
In the interest of justice
 Transfer of suit

• Plaintiff …… has a right

• Decide the forum
• With in the jurisdiction
• Main factor …. Balance of convenience
• Request made… earliest instance
• After giving notice … other side
 Cont…..

• Burden lies… applicant

• Jurisdiction… Appellate court
• Grounds …….
• Reasonable apprehension… in the litigant mind … not get justice
• Avoid conflicting decisions
 Cont…

• If the Judge is biased

• Common Question of fact & law
• Ground of Balance of convenience
• Two Suits… same cause of action… different courts
• Avoid delay & unnecessary expenditure
• No appeal against this transfer
To which court..

• Several courts…..but subordinate to same appellate court……

• u/s.22 …….Application shall be made to appellate court
• ……subordinate to different appellate courts……but same H.C…..made
to H.C
Cont….

• If subordinate courts under ….diff. H.C…..then

• Where suit instituted…..that H.C is competent
• Section 23……explains……where application……to be filed
Notice…

 When necessary…..when the application made by the either of the

parties
 Not necessary……A suo motu transfer by the High Court or Dist. Court
????

Kulwinder Kaur
V
Kandi Friends education trust
(2008)3 SCC 659
Court held...

• The order of transfer must reflect application of mind

• And the circumstances which weighed the court in taking action
• Or
• transfer of case from one court to another
?????

Anjali Ashok Sadwani
V
Ashok Kishin Chand Sadwani
AIR 2009 SC1374
Ground...

• ....for transfer
• Wife has no one in her family to escort her to undertake a long
journey
• Has been held to be a good ground
Paramount Consideration...... Justice
Transfer Allowed
1. Reasonable Apprehension
2. To Avoid multiplicity of
proceedings
3. Where Judge in one party
Interested
4. Res-subjudice
5. Avoids delay & unnecessary
expenses
Transfer not Allowed
• Opposite party influenced in
locality
• Court is situate at long distance
• Refusal to grant adjournment
• Presiding Officer belongs to rival
community
 SUMMONS……
• A summon is……
• A document issued from an office of a court of
justice
• Calling upon the person… attend before court…
for certain purpose
• Written Order… legally obligates someone…
a specified date
 Cont…

• After institution of suit…… court orders

• To issue summons to defendant
• ……answer the claim
• Without duly summons
• No further action can be taken
• Technically summon means
• Intimation to defendant by court
• ensures … fair trial
 Object

• Def. given an opportunity

• No one can be condemned unheard (audi alteram
partem)
• Summons not served … decree not binding
• Sec. 27 order 5 … service of summons
• Should be served … not beyond 30 days
 Essentials

• Shall be signed by judge

• Sealed with seal of court
• Must be accompanied by plaint
• Service of summons …. Fundamental rule of
procedure
• Problem of ss…. Major causes of delay in
• …progress of suit
 Cont…

• Summons
• Defendant
• Witness
• Defendant
• In Person
• By Pleader
• Accompanied by someone
 Mode Of Service

•.….of summon is of primary importance…

•……as it is a fundamental rule of law of
procedure.
•The problem of service of summons
•one of the major causes of delay
•in the progress of the suit.
 Service of
Summons

Personal Service Substituted

or By By Plaintiff Service By Post
Direct Court

Along Through With

With Court Newspaper ACK
Copy Officer
Cont...

• The primary method of serving summons is by personal service,

• which means that someone must physically 
deliver the summons document to the other person.
Next method.....

• …….to affix a copy of the summons on the outer door

• or some other conspicuous part of the house
• in which the defendant ordinarily resides or carries on business or
personally works for gain if the serving officer after due diligence is
not able to trace the person.
Court...

• may direct the summons to be served by registered post

• at the place where the defendant, or his agent, actually and
voluntarily resides
• or carries on business or personally works for gain.
 ??????

• Where the defendant resides within the

jurisdiction of another court or in another
state
• The summons may be sent to the court where
he resides.
• Such court will serve summons on the
defendant.
 Cont…

• Service of foreign summons…

• …may be effected by sending them to the
courts in the territories in which the
provisions of this code apply
• And served as if they were summons issued
by such courts.
Cont…

• Where the defendant resides out of India,

• The summons should be addressed to the
defendant place by post or by other services
• In the case of the defendant living abroad
substituted service is inappropriate.
Order V Rule 20...

• When the defendants were not being served with the ordinary mode
of service,
• the plaintiff can sought permission to serve them with the
substituted  service  by  way  of 
publication under Order V Rule 20
Allowed or not?
......

• CPC
• was amended in 2002
• which included electronic means of serving summons in Rule 9 and
9A.
• Order V Rule 9
• includes transmission of summons through electronic media
(2014) 5 SCC 590.

Indian Bank Association & Ors 
V
 Union Of India & Anr 
Facts ....

• The Petitioner Indian Bank Association (IBA)

• is a voluntary association of persons with 174 banks/financial
institutions as its members,
• and functions as think tank for banks in the matters of concern for
the whole banking industry.
Cont....

• According to the petitioners the banking industry has been put to a

disadvantage  due  to  the  delay 
considerable

in disposing of the cases
Cont....

the Petitioners submit that the issue raised in this case is

 of considerable national importance
owing to the reason that
in the era of globalization and rapid technological developments
Cont....

• financial trust and commercial interest have to be restored,

• and thus inter alia pray before the court to lay down appropriate
guidelines/directions to be followed by all Courts within the territory
of India
Court direction......

• MM/JM should adopt a pragmatic and realistic approach

while issuing summons. Summons must be properly
addressed and sent by post as well as by e-mail address got
from the complainant.
• Court, in appropriate cases, may take the assistance of the
police or the nearby Court to serve notice to the accused.
• For notice of appearance, a short date be fixed.
• If the summons is received back un-served, immediate
follow up action be taken.
Through email....

• The Hon’ble Supreme Court of India, in

• Central Electricity Regulatory Commission v. National Hydroelectric 
Power Corporation Ltd., 
• (2010) 10 SCC 280],
• permitted the service of Notice by email along with the ordinary
mode of serving notice.
observed

• …… in various Courts,
• the statistical data indicates that,
• on account of delay in process serving arrears keep on mounting.
• In Delhi itself, the input indicates that fifty per cent of the arrears in
Courts particularly in commercial cases is on account of delay in
process serving.
Directions….

• In addition to normal mode of service, service of Notice(s) may be

effected by E-Mail for which the advocate(s) on-record will, at the
time of filing of petition/appeal, furnish to the filing counter a soft
copy of the entire petition/appeal in PDF format
…….

• The advocate(s) on-record shall also simultaneously

submit E-Mail addresses of the respondent(s)
Companies/Corporation(s) to the filing counter of
the Registry. This will be in addition to the hard copy
of the petition/appeal;
• If the Court issues notice, then, in that event alone,
the Registry will send such an additional notice at
the E-Mail addresses of the respondent(s)
Companies/Corporation(s) via E-Mail;
…..

• The Registry will also send Notice at the E-Mail address of the
advocate(s) for respondent(s) Companies/Corporation(s), who have
filed caveat.
• Advocate(s) on-record filing caveat shall provide his/her E-Mail
address for effecting service; and
Cont…

• Within two weeks from today, Cabinet Secretariat shall also

provide centralized E-Mail addresses of various
Ministries/Departments/ Regulatory Authorities along with
the names of the Nodal Officers, if already appointed, for
the purposes of service.

• The above facility is being extended in addition to the modes

of service mentioned in the existing Supreme Court Rules.
 Case – Law

Salem Advocate Bar Association

Vs
Union Of India
AIR 2005 SC 3353

• A defendant can be served by a plaintiff or through

modern means of communication (Courier)
Facts...

The subject basically related to

Constitution and
case of civil nature.
In the former case there were certain amendments made to Code of
Civil Procedure, 1908
by the Amendment Acts of 1999 and 2002.
Issue

• Whether the amendments made in the Code of Civil Procedure, 1908

by the Amendment Act of 1999 and 2000 were constitutionally valid.
Cont....

The set of two cases,

former one, laying down the amendments

and the latter one providing a report on the amendment’s

feasibility

have laid down the foundation of providing quick, financially

accessible and proper justice.

This basically intends to reduce the number of suits filed in the

courts every year.
Amendments

 Section 26(2)

 Order 6 Rule 15(4),

 Order 8 Rules 1 and 10,

 Section 39 (4)

 Order 21 Rules 3 and 48,

 Sections 64 (1) and 64 (2),

 Section 80,

 Section 89 of Code of Civil Procedure, 1908

……

• The report is in three parts.

• Report 1 contains the consideration of the various grievances relating
to amendments to the Code and the recommendations of the
Committee.
• Report 2 contains the consideration of various points raised in
connection with draft rules for ADR and mediation as envisaged by
section 89 of the Code read with Order X Rule 1A, 1B and 1C.
• Report 3 contains a conceptual appraisal of case management.
Cont….

• Report 1 of Committee on suggestions regarding various grievances

relating to amendments considered
• Legal position clarified………
Cont….

• Whether requirement of filing affidavit is illegal and unnecessary in 
view of existing requirement of verification of pleadings?

“No”
……

• Will of Legislature cannot be defeated on ground that Court would 
be deprived of watching demeanor of witness?

“Discretion to declare witness hostile not conferred on 
Commissioner”.
……

• The  powers  delegated  to  the  Commissioner  under  Order  XXVI, 

Rules 16, 16A, 17 and 18 do not include the discretion that is vested 
in Court under Section 154 of the Evidence Act to declare a witness 
hostile.
……

• Deletion of Rule 17A does not disentitle production of evidence at 
later stage

Court may permit leading of additional evidence at later stage on 
such terms as may appear to be just.
…..

• Whether Court has power or jurisdiction to extend period beyond 
90 days?
 "yes“
Provision providing for maximum period of 90 days is not mandatory 
but only directory.
…..

• Whether further adjournment beyond three can be granted in 
circumstances beyond control of party?

 "yes"
…..

• Whether  curtailment  of  revisional  jurisdiction  of  High  Court  under 

Section 115 (1) takes away constitutional jurisdiction of High Court 
under Article 227 of Constitution?

 "no”
......

Tata Sons Limited & Ors

vs
John Doe(s) & Ors
27th April, 2017
????

• Service of notice through Whatsapp and Email – 
• Held: 
• The plaintiffs are permitted to serve the defendant No.9 Ashok 
Kumar Agarwal by text message as well as through Whatsapp as 
well as by email and to file affidavit of service.
PLEADINGS 
 Pleadings
Pleadings

Material Facts
Material Facts Specific Clear Requisite Data
Only Specific Clear Requisite Data
Only

Not Law, Vague & Indefinite

Not Law, Vague & Indefinite
?????

It is settled law……

…..that pleadings must contain
only factaprobanda ….. required to be proved
and not facta probantia….. the facts by means of which they are
proved
 Material fact

• Fact & Material Fact ……?

• “Facts”……..broad situations which give a clear picture of the dispute.
• “material facts” …….. those facts …….are an absolute
• must for a party
• to establish his claim to a relief he seeks
Cont….

• Formal document

• Main spine & prickle of litigation….

• Pleadings…….

• Not only define the issues…..

• Manifest & exert their importance …..throughout

the whole process of litigation……………
 What........

means.......
Plaint or written statement
Object......ascertain real dispute......between
parties
Narrow down area of conflict
Make aware of questions to be argued
Purpose

The Purpose of rules regarding

the pleadings
To advance the justice

To prevent multiplicity of proceedings

 Success of
dispute
Depends on the
drafting of the
pleadings
 Cont…

•……. very important in civil cases

•A good case may sometimes be lost
•…….. because of bad drafting
• Prevent miscarriage of justice
 Cont…

• Order 6(1) deals with pleadings in general

To bring parties definite issues

To diminish expenses & delay

To prevent surprise at hearing

 Importance

• Provide a guide ……
• ……..for the proper mode of trial
• …….. demonstrate upon which party the burden of proof lies
• ……….who has the right to open the case
Cont….

• ……..determine the range of admissible evidence

• …….which the parties should adduce at the trial
• …….. lay down limit on the relief that can be granted by the court
Fundamental …….

• Pleadings should state facts & not law

• Facts should be material facts

• Pleadings should not state the evidence

• The facts should be stated in concise form

P LA
T
IN
Plaint & its Particulars

…….has not been defined

………statement of claim, a document,
……….by presentation of which the suit is instituted
Its object is…..
…….. to state the grounds
………upon which the assistance of the court is sought
by the plaintiff
…… pleading of the plaintiff
Order. 7 Rule. 1-8

Relate to particulars of plaint

Every plaint should contain…
Name of the court,
 Name & Address of plaintiff & defendant,
 in case of minor or unsound mind
……..-statement to that effect,
 cause of action & when it arose-Jurisdiction-Relief
 Cont…

If the suit is in representative capacity……..

……. must show actual existing interest in subject matter
 ……..allowed a set-off or relinquished a portion of claim,
……..the amount so allowed or relinquished
Cont….

Where the suit is for amount related to immovable property or

mesne profits ………which cannot be determined,

……. the approximate amount or value thereof

Cont…

……related to immovable property….

Must state …..boundaries…..of …..
Description of….survey no……
If suit……for possession….against…..tenant…
Date of default…..of non-payment of rent
……for recovery of money…..
In spite of repeated demands & date of default
Cont…

• If…..suit for money…

• Plaint shall state…..
• Precise amount
Cont…

 Suit…..damages…..
 ………..breach of contract date
 …for specific performance……
 …. is ready & willing to perform
Admission of …….

Where the court orders…….

Issued of summons……
The plaintiff must present summons…….
Within 7 days……..
……along with copies…….
 Return of ……..

Where there is no
…territorial or pecuniary ….jurisdiction
With regard to the subject matter…..
….will be returned…….
…may present ….proper court
Return…..endorse..

Date of presentation……………..
Date of return…………………….
Name of the party…………….
Reasons for returning it……
 Rejection…….
o ….barred by time
o Fails to pay ……court fee ….within time
o Does not disclose the cause of action
o Relief claimed under valued….
o Where plff... fails to comply the provisions of Rule.9……
o Non-compliance with statutory provisions…
Cont….

If the plaint not signed by plaintiff….

Defect not cured within time….

….suit is vexatious & meritless

Reasons must be recorded for rejection

Rejected plaint….
Case-law

VIRENDRA KASHINATH RAVANT AND ANOTHER

Vs.
VINAYAK N.JOSHI AND OTHERS
AIR 1999 SC 162
Suit:....for eviction
Facts.....

• Appellants ........ Landlords

• .........building situate at Benham Hall Lane, Mumbai
• ...... let out to Shanta Sabnis..... Original Tenant
• After her death......
• Her daughter.....continued as a .......
Cont.....

• ........filed a suit for eviction ....

• On the ground......
• that the premises were sub-let to the.....third parties
Cont....

• .....but stated that

• she was allowed by her mother and grand-mother
• to reside in the building
• for the purpose of looking after her mother
• and grand-mother who were old and sick.
2nd Res.......

• contended that ....

• she is the only daughter of Shanta Sabnis
• and hence the tenancy right has devolved on her with the death of
her mother.
• She disputed the contention of the appellants
• that the building had been sublet to the third .....
 1st res.....

• .......admitted that he is in possession of the suit premises.

• .....contended that he was permitted by the tenant
• …………. to occupy the building on leave and license basis
Cont…

• under an agreement dated 16.10.1971 and he continued in such

possession on 1.2.1973 and also thereafter.
• So ...... claimed protection under Section 15A of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947
 Trail.....

• .....found that .........1st res… was inducted into possession ........

• The claim made by……
• ………. for protection under Section 15A of the Act
• was repelled
trial court…

• concluded that induction of....... into the building

• amounted to unlawful subletting.
• On the strength of the above finding
• …….. a decree for eviction was granted
Cont.......

• The appellate authority .......confirmed the decree for eviction

• Before H.C........
• High Court approached the issue
• ………..from a new angle
• untouched by the trial court and the appellate authority
H.C.......

observed first ......

that appellants have not treated the defendant as their tenant
and secondly that there is no clear averment in the plaint to the
effect
 that the building has been sub-let to the 1st res..
Cont......

• It is therefore, ...
• clear that in order to be entitled to a decree of eviction against the
tenant
• …….on the ground of unlawful sub-letting an averment in the Plaint is
must that the tenant has unlawfully sub-let the suit premises.
• It is clear from the allegation in the plaint that the plaintiffs were not
treating any of the named defendants as their tenants.
Cont......

• .......the Tenant of the plaintiffs viz. Ms. Shanta had expired before
institution of the suit.
• Therefore, there is no question of the plaintiffs being in a position to
make a statement
• that the tenant inducted 3rd parties ....as unlawful subtenant.
 Order of H.C.....

• In these circumstances,
• a decree of eviction could not have been passed against the
petitioner ....
• because averments necessary for passing a decree itself were absent in
the Plaint.
• both the courts below have committed grave error of law in overlooking
these aspects of the matter which were crucial for deciding the
controversy in the matter.
 Sc observed...

• The High Court was not justified

• .......in non-suiting the appellants on the premise that they have "no
where treated the defendant as their tenant.
• " The clear averments in the plaint regarding the tenant are the
following:
• "One Miss Shanta B.Sabnis during her life time was Plaintiffs' monthly
tenant in respect of the building bearing No. 7 on a monthly rent of Rs.
12.85.
Cont.....

• The said Miss Shanta B. Sabnis died some time ago leaving behind
her mother as the heir and legal representative.
• It admits of no doubt that appellants have clearly recognised Ms.
Shanta Sabnis as their tenant in respect of the suit premises.
• Admission of..........subletting to the 3rd party,
Cont.....

• the High Court has

• exceeded its jurisdiction
• by upsetting the concurrent finding of facts reached by the two fact
finding courts,
• on a very fragile reasoning that there was no sufficient averment in
the plaint
Order 6 Rule 5 ......

• .......confers powers on the Court

• to order a party to make a further statement
• or even a better statement
• or further and better particulars of any matter already mentioned in
the pleading.
• no suit shall be dismissed merely on the ground that more particulars
are not stated in the pleadings.
Under Order 6 Rule 2(1).....

• "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,
• as the case may be, but not the evidence by which they are to be
proved.
The object .......

• .........of the Rule is two-fold

• First is to afford the other said intimation regarding the particular
facts of his case so that they may be met by the other side.
• Second is to enable the court to determine what is really the issue
between the parties.
Cont......

• a statement in a concise form" are definitely suggestive

that brevity should be adhered to while drafting
pleadings.
• Of course brevity should not be at the cost of setting
out necessary facts, but it does not mean niggling in the
pleadings.
Cont….

• Elaboration of facts in pleadings is not the ideal measure

• and that is why the sub-rule embodied the words "and contain only"
just before the succeeding words "a statement in a concise form of
the material facts".
 Cont.......

• "Procedural law is intended to facilitate and not to obstruct the course

of substantive justice. Provisions relating to pleadings in civil cases are
meant to give to each side intimation of the case of the other so that it
may be met to enable Courts to determine what is really at issue
between parties, and to prevent deviations from the course which
litigation on particular causes of action must take.
Finally.....

• High Court has thus erred as it exceeded its jurisdiction.

• Hence ……..allow this appeal and set aside the impugned judgment of
the High Court
• ……..and restore the order of the trial court as confirmed by the
appellate court.
Case-law

Bachhaj Nahar
Vs.
Nilima Mandal and Anr.  
AIR 2009 SC 1103
Ratio ......

"When neither party puts forth a contention, then court cannot

obviously make out such a case not pleaded, suo moto”.
……filed…

• for declaration......
• possession ....
• and injunction.....
Facts.....

......claimed that the suit property .......purchased by

them under sale deed dated 29.12.1962.
The reliefs ......
 declarations that
the plaintiffs are the absolute owners
the defendants do not have any right, title or
interest or possession
Cont.....

o…..had illegally encroached and started construction in

the suit property

o a direction to ….. to deliver possession of the suit

property

oafter demolishing the construction over the same

oa permanent injunction restraining……….
o……..from interfering with the suit property.
Def.......

• ....... resisted the suit

• contending that….. purchased the property to the
South of plaintiff's property
• from second defendant under sale deed dated
5.5.1982
• and the suit property actually formed part of his
property.
• …. contended that the plaintiffs had no right, title or
interest in the suit property.
Issues......

Is the suit as framed maintainable?

Have the plaintiffs got any cause of action to file

the suit as against these defendants?

Is the suit barred by limitation?

Cont….

• Whether the suit land is part and parcel of land of

the plaintiff purchased through registered …….

• ……..or the suit land in exclusive possession of after

purchase of first defendant.
Cont……

……first defendant encroached any portion of the

suit land?
…….Whether the plaintiffs got title over the suit
land?
Or were they using the suit land under express
permission?
 To what relief or reliefs, plaintiffs are entitled?
 Trial court …….
•  After considering the evidence,

• …….. by judgment and decreed the suit in part.

• It held that the suit property was part of plaintiffs'

property

• and that first defendant had encroached over a part of it

to an extent of 15 sq. ft.
Cont……

o…..already put up his construction over the

encroached portion and was using it,

o………instead of directing him to deliver back

possession

ohe should pay Rs. 100/- as the price of the

encroached portion, to the plaintiffs
 Appellate court……
• Feeling aggrieved, …….the first defendant filed an appeal.
• Plaintiffs filed cross-objections.

• The first appellate court held that the plaintiffs had failed to prove……….
• ………. therefore allowed the appeal 
Before…..H.C……..

• The High Court……. held that …

• the plaintiffs had failed to make out title to
the suit property.
………held that plaintiffs had made out a case
• for grant of relief based on easementary
right of passage
Cont….

in respect of the suit property……… as they

had claimed in the plaint
…….that they and their vendor had been
using the suit property,

and the first defendant and witness had

admitted such user. 
Cont…….

• The High Court observed……

• that if there was any encroachment over the said passage by the first
defendant,
• that will have to be got removed by the "process of law".
• …… issued a permanent injunction restraining the plaintiffs from
encroaching upon the suit property (passage)
• ……till the plaintiffs got a declaration of their title over the suit
property by a competent court
Order…….

• ……..that the case based ….

• ….. issue relating to an easementary right,

• as the evidence available was sufficient to make out easementary right

over the suit property
Cont….

therefore ….granted a permanent injunction

restraining the first defendant

 from interfering with the plaintiffs' use and

enjoyment of the `right of passage' over the suit
property
Before S.C……..

• The Appellant contends……

• …….that neither in law, nor on facts, the High Court could have
granted the aforesaid reliefs.
• The High Court, in this case…..
• ……in its obvious zeal to cut delay and hardship
• that may ensue by relegating the plaintiff to one more round of
litigation
• has rendered a judgment which violates several fundamental rules of
civil procedure
 Cont…

• No amount of evidence can be looked into…..

• ……upon a plea which was never put forward in the pleadings.
• A question which did arise from the pleadings and
• which was not the subject matter of an issue
• cannot be decided by the court.
• A Court cannot make out a case not pleaded.
 SC observation….
The court should confine its decision to the question raised in
pleadings.

Nor can it grant a relief which is not claimed and

which does not flow from the facts and the cause of action
alleged in the plaint.

 A factual issue cannot be raised

or considered for the first time in a second appeal.

Cont……
• CPC……….

• ………is an elaborate codification of the principles of

natural justice to be applied to civil litigation

• The provisions are so elaborate

• …fulfillment of the procedural requirements of the Code

may itself contribute to delay.
Cont…….

• But any anxiety to cut the delay or further litigation,

• ……should not be a ground to float the settled

fundamental rules of civil procedure.

• The object and purpose of pleadings and issues

• …….. is to ensure that the litigants come to trial with

all issues clearly defined
Cont…..

• and to prevent cases being expanded or grounds being shifted

during trial.

• object is also to ensure ………

• that each side is fully alive to the questions that are likely to be
raised or considered

• may have an opportunity of placing the relevant evidence

appropriate to the issues before the court for its consideration.
Cont…..

• …….. the pleadings are meant to give to each side

intimation of the case of the other so that it may be
met,
• to enable courts to determine what is really at issue
between the parties,
• and to prevent any deviation from the course which
litigation on particular causes must take.
Cont…..

When there is no prayer…….

 for a particular relief

and no pleadings to support such a relief,

 when defendant has no opportunity to resist or oppose

such a relief,

if the court considers and grants such a relief,

 it will lead to miscarriage of justice.

Cont…..

• The High Court has ignored the aforesaid principles relating

to the object and necessity of pleadings.
• Even though right of easement was not pleaded or claimed
by the plaintiffs,
• only in regard to title and possession
• it made out for the first time in second appeal,
• a case of easement and granted relief based on an
easementary right…….
 Cont….

• without pleadings and issues,

• evidence cannot be considered to make out a new case which is
not pleaded.
• Another aspect to be noticed,
• is that the court can consider such a case not specifically
pleaded,
• Where neither party puts forth such a contention, the court
cannot obviously make out such a case not pleaded, suo moto.
Cont……

• In the absence of a claim by plaintiffs……

• based on an easementary right,
• the first defendant did not have an opportunity to demonstrate that
the plaintiffs had no easementary right.
• In the absence of pleadings and an opportunity to the first
defendant to deny such claim,
• the High Court could not have converted a suit for title into a suit for
enforcement of an easementary right
Finally…..

• and set aside the judgment and order of the High

Court

• and restore the judgment of the first appellate court

 Written
statement
What is.....?

Term of specific connotation........

Ordinarily signifying...

Reply to the plaint......

Simply.....

.....pleading of defendant
Cont...

• ...must deals with....every material fact

• ....alleged by the Plaintiff

• .....state new facts

• ......takes legal objects against the claim of plaintiff

If ....more...one .....def

All defendants .....should sign on the written statement

......filed by one defendant....

Does not bind ...on the other.....defs

After receipt of ss.....

......w/s .....filed in 30 days....

It may be extended.....90......

Order VIII of code........

Before………

• ....... 1976 Amendment

• The defendant may,

• and if so required by the court,

• shall at or before the first hearing or

• within such time as the court may permit,

• present a written statement of his defence.

After.....

• As a result of the 1976 Amendment,

• Rule 1 of Order VIII of the Code
• The defendant shall,
• at or before the first hearing or within such time as the
court may permit,
• present a written statement of his defence
2002 Amendment.....

• The defendant shall,

• within thirty days from the date of service of
summons on him,
• present a written statement of his defence
Cont....

• General rules of Or. VI......will apply

• ....may take number of defenses...

• ......must be maintainable at law.....not embarrassing

• .....the allegation ...not admitted.....

• Should be specifically denied.....

• ......Should not....be vague / evasive

Fails...to file W/S....

• Upon proof of .......plaintiff

• Court may pronounce.......Judgment

• If.......relies.....upon....Set-off defence

• .......should be separately......stated

• ....also bound to produce.....all documents

• .....meaning of set-off......?????
Set-off....

• ...claim set up another....

• .....where there are mutual debts....
• One debt .....settled against the other
• Reciprocal acquittal of debts between two persons
• Plea of defence.......available.....
• By set off......wipes out or reduces the claim of
defendant
Condition....

Suit must be recovery of money...

Money must be ascertained...

Sum must be legally recoverable

.....must....by defendant from plff

Should not exceed...pecuniary jurisdiction

May classified.......

Set off

Equitable
Legal set off
set off
Legal.....................Equitable

Sum must be ascertained May even be for unascertained

Claimed as a matter of right
Claim need not be originated
from same transaction
Legally recoverable
money
Matter of discretion of court
Must have arisen out of same
transaction
Fiduciary relationship may be
allowed
??????????

Whether the limit of ninety days prescribed u/or 8

R.1 for filing w/s mandatory or merely directory?
Case-Law

Kailash vs Nanhku
AIR 2005 SC 2441
 Facts....
.....Elections of Uttar Pradesh Legislative Council were
held pursuant to the Presidential notification dated
7.11.2003.
The appellant was declared elected.

Respondent filed an election petition

under Section 80 of the Representation of the People

Act, 1951
 Cont...

........laying challenge to the election of the appellant.

........ was served with the summons, .....accompanied by a
copy
...........requiring his appearance before the Court on
6.4.2004.
..........On the appointed day,
 the appellant appeared through his counsel
and sought for one month's time ....
............for filing the written statement
Cont...
o........ allowed time till 13.5.2004 for filing w/s.....
oOn 13.5.2004, .... again filed an application seeking further time
for filing .........

o........on the ground that copies of several documents were

required to be obtained.
oThe Court adjourned the hearing to 3.7.2004

oin between, from 13.5.2004 to 2.7.2004,

o.......The high Court was closed for summer vacation.

Cont....

 On 22.6.2004, appellant's advocate's nephew expired.

 However, the written statement was drafted and kept ready

for filing.
 The registered clerk of the advocate was deputed for filing
the same in the Court on the appointed day.
 .......on account of lack of understanding on the part of the
registered clerk,
 the written statement could not be filed on 3.7.2004
Cont......

.....but the same was filed on 8.7.2004 .....along with

application for Condonation of delay .....

.......On 23.8.2004, the High Court rejected the application

.........filed by the appellant and refused to take the written

statement on record
.........for the reason that the same was filed beyond a period
of 90 days from the date of service of summons
Cont....

• Feeling aggrieved by the said order,

• the winning candidate ........ before ........, S.C......
• has filed this appeal

Issue......

Whether the time limit of 90 days as prescribed by the Proviso

appended to Rule 1 of Order VIII of the CPC is mandatory or
directory in nature?
Written statement.......

The defendant shall,

within thirty days from the date of service of summons on
him
.......present a written statement of his defence
Provided that where the defendant fails to file the written
statement within the said period of thirty days,
 he shall be allowed to file the same on such other day, as
may be specified by the Court,
for reasons to be recorded in writing, but which shall not be
later than ninety days from the date of service of summons."
The provision....

.....does not deal with the power of the court

and also does not specifically take away the power of the
court
to take the written statement on record
Though.. filed beyond the time as provided for...
....the nature of the provision contained in Order VIII, Rule 1
is procedural.
.......It is not a part of the substantive law
Cont...

• the object behind substituting Order VIII, Rule 1

• ....... in the present shape is to curb the mischief of
unscrupulous defendants
• .......adopting dilatory tactics,
• ........delaying the disposal of cases
• much to the chagrin of the plaintiffs .......
• .......approaching the court for quick relief and
• also to the serious inconvenience of the court faced with
frequent prayers for adjournments.
The object....

....is to expedite the hearing and not to scuttle the same.

The process of justice may be speeded up and hurried
......but the fairness which is a basic element of justice
cannot be permitted to be buried
.....Considering the object and purpose behind enacting
Rule 1 of Order VIII in the present form and the context in
which the provision is placed,
...... opinion that the provision has to be construed as
directory and not mandatory.
Cont....

• Ordinarily, the time schedule prescribed by Order VIII, Rule 1

has to be honoured.
• The defendant should be vigilant.....
• The extension of time sought for by the defendant from the
court whether within 30 days or 90 days,
• should not be granted just as a matter of routine
Cont.....

......when the period of 90 days has expired.

The extension can be only by way of an exception

......and for reasons assigned by the defendant

and also recorded in writing by the Court to its satisfaction.

Cont.....

The extension of time shall be

.........only by way of exception ...and for reasons to be
recorded in writing
The court may impose costs for dual purpose

i) to deter the defendant from seeking any extension of

time just for asking and
(ii) to compensate the plaintiff for the delay and
inconvenience caused to him.
Cont....

...... hold that Order VIII Rule 1,

 though couched in mandatory form,
......is directory being a provision in the domain of
processual law.
The purpose of providing the time schedule for
 ........ is to expedite and not to scuttle the hearing.
 Cont........

• The provision spells out a disability on the defendant.

• It does not impose an embargo on the power of the Court to
extend the time.
• Though, the language of the proviso to Rule 1 of Order VIII of
the CPC is couched in negative form,
• it does not specify any penal consequences flowing from the
non- compliance.
Cont.....

The provision being in the domain of the Procedural Law,

it has to be held directory and not mandatory. 
The power of the Court
to extend time for filing the written statement
 beyond the time schedule
provided by Order VIII, Rule 1 of the CPC is not completely
taken away
 Finally......
• Extension of time may be allowed
• if it was needed to be given for the circumstances which are
exceptional,
• occasioned by reasons beyond the control of the defendant
• and grave injustice would be occasioned if the time was not
extended
• written statement shall now be taken on record
• but subject to payment of Rs.5000/- by way of costs payable by
the appellant herein to respondent
• ...Appeal allowed
Case-law

National Textile Corporation Ltd

v.
Naresh Kumar Badrikumar Jagad
AIR 2012 SC 264
Ratio.....

• No relief can be granted by the courts, if not found in

pleadings
• Pleadings and particulars are necessary to enable the
court to decide the rights of the parties in trail.
• Pleadings are more help to the court in narrowing the
controversy involved
• To inform the parties concerned to the question in
issue
• So that the parties may adduce appropriate evidence
on the said issue
Case – Law

Charanlal Sahu
v.
Giani Zail Singh
AIR 1984 SC 309
Cont…

• A party cannot be allowed to keep his options

open until the trial & adduce

• Such evidence as seems convenient & handy

Cont…

• By way of amendment only

• ……party can rise any ground of claim
• ……or contain any allegation of fact
inconsistent with his previous pleadings
• A court may allow amendment of pleadings
• A court may striking out pleadings if it is
unnecessary…….
Other rules of pleadings(or.6 R.4-18)

 If the pleadings to related……… to fraud,

misrepresentation,

 breach of trust, willful default or undue influence

particulars …….dates & items should be stated
Cont…

 Performance of condition precedent – need not to be

pleaded –

 non-performance of condition precedent – must be

specifically & expressly pleaded
Pleadings in writ

……should not only state material facts

 but also the evidence in support

proof of such facts

 by annexing necessary orders & documents

 i n g s
ea d
u t Pl
g O
ri k i n
St
Or. VI R. 16

The court is empowered ……

………to strike out any pleadings
…..if it is unnecessary,
scandalous,
 frivolous or vexatious
Cont….

………..or tends to prejudice, embarrass

 or delay fair trial of the suit

 or is otherwise an abuse of the process of the

court
Case – Law

Santhi Vijay Kumar

Vs
Tota Singh
(2006) 13 SCC 353
• Supreme court observed that bare reading of or.6
R.16 makes it clear that a court may order striking
of pleadings
Cont…

o Where such pleadings is unnecessary……

o …….Tends to prejudice, embarrass or delay of fair
trial of the suit
o An abuse of the process of the court
o It cannot be over-looked that normally a court
cannot direct parties as to how they should
prepare their pleadings
Cont…

The power to strike out pleadings is extraordinary in nature

……and must be exercised by the court sparingly
……and with extreme caution & circumspection
AMENDMENT OF PLEADINGS
Case-law

Revateeju builders & Developers
Vs
Narayanaswamy & sons
(2009)10 SCC 814
Plff…..filed……

• ……… for recovery of Rs. 52,97,111/- with interest at the rate

of 18% per annum from the date of filing of suit till payment.
• …… alternatively had taken the plea that if the court for any
reason comes to the conclusion that a decree for a sum of
Rs. 52,97,111/- cannot be passed as prayed by the appellant
against respondents
• then the court may at least pass a decree for Rs. 19,12,500/-
with interest at the rate of 18% from the date of suit till the
date of realization ……
Cont…

claimed that it be declared absolute owner of the

scheduled property
on the basis of the sale deed dated 30.9.1987.
The sale deed was executed by the respondents
after obtaining permission from
the State of Karnataka under the provisions of
the Urban Land (Ceiling & Regulation) Act, 1976.
during…….suit…….

A petition in public interest was filed by one S.

Vasudeva
• ………challenging the aforementioned transfer of
land.
• ……… in those proceedings
• held that the sale deed executed by the respondent
in favour of the appellant on 30.9.1987 is held…… 
invalid and inoperative.
cont ….

It may be pertinent to mention that

……..after the institution of the suit, the Urban Land

(Ceiling and Regulation) Act, 1976

…… has been repealed.

Cont…..

o………after the Act has been repealed……

othe appellant filed an application under Order VI
Rule 17
o…….seeking leave of the trial court to add few
prayers
oand to delete certain paragraphs in the plaint and
also to delete the prayer
PRAYED……

to declare that ………the defendants are trespassers

…… mandatory injunction directing the defendants to 

vacate and deliver to the plaintiff,
………vacant and peaceful possession of the building within
30 days; and

to issue a permanent injunction restraining the defendants

Cont…..

• The trial court…….allowed application for amendment

filed under Order VI Rule 17 CPC.

• The respondents aggrieved by the said order

• ……. Preferred…… writ petition

• ground that the amendment as sought and granted has

changed the entire nature of the suit and cause of
action.
Cont…

……… also submitted that

the fact of allowing amendment would be taking

away admissions in the plaint by the appellant

and such an amendment cannot be permitted by

any court of law
Before H.C….
• The respondents submitted........
• ....... the original suit was instituted for recovery of Rs. 52,97,111/-.
• Alternatively, .... Declare......... absolute owner
• based on the basis of sale deed dated 30.9.1987
• and direct the respondents to deliver vacant possession of the
plaint schedule property.
• .... that means......the respondents are in possession of the entire
suit property.
Cont…
 by virtue of the amendment........

.........the appellant is trying to contend

...... that the respondents are to be treated as

trespassers

...... and unauthorized occupants of the building

in question
Cont…

• ..........trying to introduce a new case

• ……..which would certainly affect the rights of the

respondents

• when the appellant had earlier requested the

court to pass a decree

• ….for possession of the entire property.

Order of HC….

• .........conclusion....... that the appellant while

seeking permission to amend the plaint is trying
to introduce a new case

• which was not his case in the original plaint and

• proposed amendment if allowed would certainly

affect the rights of the respondents adversely.
Cont….

• In the impugned judgment,

• ……..High Court also held that
• …….the appellant cannot  be  permitted to withdraw the
admissions made in the plaint
• ……….as it would affect the rights of the
respondents.
Cont......
• further ….held that any such amendment.......
• which changes the entire character of the plaint
cannot be permitted ........
• ........ set aside the order of the trial court which
allowed the amendment under Order VI Rule 17
CPC.
• Being aggrieved by the impugned judgment,
• Preferred an appeal.......
Supreme Court......

 ..........was only for refund  of  sale  consideration 

and alternatively for possession.

........ also submitted that the relief for possession

was always there

although it was in respect of the entire land

which is sought to be amended
Cont...

• ........ that the amendment is necessary to elucidate the real points

in controversy.

• ......the amendment ......will not cause any prejudice

Cont...

• ..... stand taken up by the respondents is totally dishonest, wrong and

not bona fide.
• .........that the court should be liberal in allowing amendments
• and the respondents be compensated by costs.
Res......

• The original plaint expressly so avers and relies

• .......on Section 65 of the Contract Act

• ....clearly admitting that the sale deed has become

void.

• This admission is now sought to be got rid off and

the sale deed is sought to be asserted as valid.
Cont.....

• It was submitted that the appellant cannot,

therefore, seek any amendment of the plaint
• relying on the circumstances as to the earlier
decision having been overruled by seeking
amendment of the plaint.
• This has the effect of changing the character of
the suit and also omitting an admission made
Cont…

• Respondents filed written statement to the original plaint.

• They prayed the court to pass a decree in favour of the appellant for
a sum of Rs. 27,30,339.45/.
• This is an admission of the respondents in favour of the appellant to
an extent of Rs. 27,30,339.45/-.
• The appellant now cannot be permitted to take a complete
somersault.
All rules of court…..

• …….intended to secure the proper administration of

justice,

• and it is therefore essential that they should be made to

serve and be subordinate to that purpose,

• so that full powers of amendment must be enjoyed and

should always be liberally exercised
Cont….

• but nonetheless no power has yet been given to

• enable one distinct cause of action to be substituted

for another,

• nor to change,

• by means of amendment, the subject-matter of the

suit.
Cont....

• The first condition

• which must be satisfied before the amendment can be allowed by
the court is
• whether such amendment is necessary for the determination of the
real question in controversy.
• If that condition is not satisfied, the amendment cannot be allowed.
• This is the basic test which should govern the courts' discretion in
grant or refusal of the amendment.
Cont….

• The other important condition

• which should govern the discretion of the Court is
the potentiality of prejudice or injustice which is
likely to be caused to other side.
Cont….

• whether the amendment sought is imperative for

proper and effective adjudication of the case;
• whether the application for amendment is bona
fide or mala fide;
• the amendment should not cause such prejudice
to the other side which cannot be compensated
adequately in terms of money
Cont…..

• refusing amendment would in fact lead to

injustice or lead to multiple litigation;
• whether the proposed amendment
constitutionally or fundamentally changes the
nature and character of the case; and
• as a general rule, the court should decline
amendments if a fresh suit on the amended
claims would be barred by limitation on the date
of application.
Other…..

• These are some of the important factors

• which may be kept in mind
• while dealing with application filed under Order 6
Rule 17.
• These are only illustrative and not exhaustive."
Cont…

• ………very serious judicial exercise and the said exercise

should never be undertaken in a casual manner.

• while deciding applications for amendments

• the courts must not refuse bona fide, legitimate, honest

and necessary amendments

• and should never permit mala fide, worthless and/or

dishonest amendments
Finally....

• apply these parameters to the present case,

• then the application for amendment deserves to be dismissed
• with costs of Rs. 1,00,000/-
• because the respondents were compelled to oppose the
amendment application before different Courts.
• This appeal being devoid of any merit is accordingly dismissed with
costs.
AMENDMENT OF PLEADINGS
Means…

A small change…

Improvement made to ……document

…..is basically for the purpose

bringing about final adjudication in a suit

 to avoid multiplicity of proceedings.

Amendment of …….

• Order. VI Rule.17 …….

• The court may at any stage……
• ……… of the proceedings
• ………..allow either party
• to alter or amend his pleadings in such manner
and on such terms as may be just
Cont…

• And all such amendments shall be made as may be

…………

• necessary for the purpose of

• determining the real questions

• in controversy between the parties

Cont…

• No application for amendment shall be allowed

after the trail has commenced
• Unless the courts come to the conclusion that in
spite of due diligence…
• …the party could not have raised the matter before
the commencement of trial
Object of Amendment

• The object of the rule……

• …….. is that the courts should try the merits
of the cases
• …….. that come before them & should
consequently allow all amendments
 Cont…

• ………. that may be necessary for determining the real

question in controversy between the parties
• ………… provided it doesn’t 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." -
ISSUES
What is......?

Back bone of suit

Means.....point in question

......subject of debate

....disagreement....discussion, argument or litigation

Cont.....
When one party affirms

...& other party denies

..a material proposition of fact or law..

Then only issue arise....

...are crux of the matter

 Order.14 Rule 1......
Framing of issues.......
...scope of the trail is determined...
The correct decision of civil lis.......
Depends on.......
Correct framing of .......
The real points in controversy .....should be correctly
determined
two TWO KINDS

Issue of • Pleadings& Documents

Fact • No power...preliminary...

Issue of • Jurisdiction, cause of action.

Limitation
Law • Can frame preliminary ......
essentials......

• Issue.....must be framed...not pleading.....

• Court cannot refused to decide the point
• .....which an issue ....framed
• ....should not frame an issue
• Which does not arise in pleadings
• ...must be confined to material questions of fact or
law
Cont.....

• One issue.....one fact / law.....

• If the case.....goes to appeal...
• Appellate court.....dealt on the issues settled by the
trail court ...
• Duty of the frame proper issues....
• Rests primarily on the court ......
• ....should be specific & proper
Court may......

• .....frame addl. issues / amend issues

• ....strike out issues........
• Omission:
• Even though it is the duty of the court to frame proper issues
• Mere omission to frame
an issue is not necessarily fatal to the suit.
• Omission to frame an issue is an irregularity which may or
may not be a material one
 Cont....
If such omission affects the disposal of the suit
must be remanded to the trial court for a fresh trial.
 On the other hand,
 if the parties went to the trial with full knowledge
that a particular point was at issue,
they have not been prejudiced and substantial justice
has been done,
absence of an issue is not fatal to the case so as to
vitiate the proceedings
Disposed.....

•Parties are not at issue......disposed

•Def. Admits claim.......
•Def. Failed to produce evidence.....
•If court satisfied with framed issues....
 Case-law

Sopan Sukhdeo Sable and Ors.

Vs
Assistant Charity Commissioner and 
Ors.
AIR 2004 SC 1801
 Claim……plff…..

o………. to be tenants under respondent No. 2. Shaneshwar

Deosthan Trust.
o......Its trustees and the Assistant Charity Commissioner were the
other defendants.
oPlaintiffs claimed that they were tenants of the trust of which the
defendants Nos. 3 to 13 were the trustees.
o Alleging that they have been forcibly evicted notwithstanding
continuance of the tenancy,
.... filed ......for reliefs

 ......declared as the tenants of the properties...... belonging to

temple Trust,
 .........permanently restrained by an order of injunction
 ..........not to evict forcibly with the help of police
 and also not to interfere in their business being carried on by
them in suit shops,
 and not to interfere in the possession of suit shops in any
manner-whatsoever
Cont.....

• Defendant No. 1 be directed to enquire into the illegal acts,

committed by other defendants
• and issue appropriate direction to that effect.

• What is the plea of .......Trust?

• There was no forcible dispossession as claimed

 Cont....

An application was filed by the trust

.......raising a preliminary plea 
....... plaint is liable to be rejected under Order VII Rule 11 of
the Code.
 Acc to ...... Section 80 of the Bombay Public Trusts Act, 1950
Cont...

it was urged that

.........no Civil court had jurisdiction
 to decide or deal with any question
 which by or under the Act is to be decided or dealt
with by any officer or authority under the Act
and in respect of which the decision or order of
such officer of authority has been made final and
conclusive.
Trial Judge......

...... framed two preliminary issues

whether the suit was liable to be rejected for want of
cause of action?
 whether the suit was enable against all the
defendants
Finding....
• ....... in respect of the preliminary  issues  were recorded
against the plaintiffs.
• ............the plaint does not disclose any cause of action
• the jurisdiction vests only with the District Court to give
direction to Commissioner
• and in any event Section 80 of the Act took away jurisdiction of
the Civil Court and the plaint was rejected. 
 Challenging......

.........the judgment and decree

 .............an appeal was preferred before the District court

The appeal dismissed & trial court order confirmed 
 The matter was carried in Second Appeal

......... before the High Court which by the impugned judgment

upheld the findings recorded by the Courts below
Before... Supreme Court....

• .......... it was contended by the appellants that Section 80 of the

Act .......had no application
• ........ and the lease being for 11 years
• ...........the action of the trust in dispossessing the plaintiffs
forcibly cannot have the approval of law

• Denied.....plea of the respondent

Contention of Res..

• The plaint......... clearly overlooks the basic

distinction between statements of the facts
disclosing cause of action
• and the reliefs sought for.
• The reliefs claimed do not constitute the cause of
action.
• This is a matter which can be considered in the trial
itself so far as it is relevant.
Cont.....

.....further submitted.....
 in any event the District Court was the only Court
having jurisdiction
and not the Court where the suit was filed.
This aspect does not appear to have been
specifically urged before the Courts below
 Order VII Rule 11: Rejection of
plaint.......

• where it does not disclose a cause of action:

• where the relief claimed is undervalued,
• and the plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the court, fails to do so:
• where the relief claims is properly valued but the plaint is written
upon paper insufficiently stamped,
• and the plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court, fails
to do so:
Cont....

• where the suit appears from the statement in the

plaint to be barred by any law
• where it is not filed in duplicate
• where the plaintiff fails to comply with the
provisions of Rule 9.
 The real object......

......Order VII Rule 11 of the Code

....... to keep out of courts irresponsible law suits.
Therefore, the Order X of the Code is a tool in the hands of the
Courts by resorting to which and by searching examination of
the party
 in case the Court is prima facie of the view that the suit is an
abuse of the process of the court
in the sense that it is a bogus and irresponsible litigation,
 the jurisdiction under Order VII Rule 11 of the Code can be
exercised.
Order of SC.....

The question of forcible possession as claimed is also a matter

which can be pressed into service by the parties before the
trial Court
and if raised the Court shall
deal with it considering its relevance to the suit and accept it
or otherwise reject the plea in accordance with law.

Looking into the nature of dispute ......

Finally….

it would be appropriate...

 if the trial Court makes an effort to complete the
trial within six months
.... from the date of the judgment.
 The parties are directed to cooperate for disposal
of the suit early within the stipulated time.
 The appeal is allowed to the extent indicated
without any order as to costs.
Case – Law

Kuldeep Singh
Vs
Ganpat Lal
AIR 1996 SC 729
Cont…

• Supreme court stated, the object underlying Order.7

Rule. 1(e)
• …which requires the plaint shall contain the
particulars about the facts constituting the cause of
action
• And when it arose, the purpose behind it to help
the court in ascertaining whether the suit is not
barred by limitation
Cont…

• Suit for possession against Tenant – date of default

of non – payment of rent
• Money Suit – in spite of repeated demands – date
of default
• Suit for damages – breach of contract
• Suit for specific performance – plaintiff state that he
is ready & willing to perform
Cont…

3. Jurisdiction
 Pecuniary – Value of suit
 Territorial – Subject-matter
4. Limitation
 Plaintiff should show the ground of exemption
***********
THE E ND