Pleadings are to be Considered as a Whole. When Lack of Pleadings Amounts to a Material Flaw?

Jojy George Koduvath

Abstract: Why ‘Particulars’ are Insisted in Pleadings

  • 1. To give Notice to the other side.  
  • 2. To narrow down the controversy.
  • 3. To give definiteness to the stance of parties in court.
  • 4. Pleadings must be pregnant enough to produce an issue.
  • 5. It is Court that draws inference as to ‘abstract’ propositions.
  • 6. Pleadings constitute the skeleton that give shape to the case.
  • 7. In the Absence of Pleading, Evidence cannot be Considered.

Classic Rulings on this Subject

  • Kusum Lata Sharma v. Arvind Singh, AIR 2023 SC 3067
  • Shakti Bhog Food Industries Ltd. v. Central Bank of India, AIR2020 SC 2721; 2020-17 SCC 260
  • Sopan Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC 137
  • Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242; 1987-2 SCC 555
  • Ganesh Trading Co. v. Moji Ram, 1978 KHC 500: AIR 1978 SC 484
  • Bhagwati Prasad v. Shri Chandramaul, AIR 1966 SC 735

Fundamental Rules of Pleadings

The Supreme Court of India pointed out, in Kusum Lata Sharma v. Arvind Singh, AIR 2023 SC 3067, the fundamental rules of pleadings, as under:

  • The pleadings must be read as a whole,
  • The purport of proper pleadings is – caused no prejudice to the other side.
  • When a question arises as to a flaw in the pleadings, it must be considered in the light of the evidence.
  • Impropriety (or otherwise) of a lack of pleading is tested on the touchstone – whether it caused prejudice to the respondents-tenants (or not).

The Apex Court (Kusum Lata Sharma v. Arvind Singh, AIR 2023 SC 3067) explained the position vividly as under:

  • “17. A comprehensive look at the pleadings taken by the appellant along with the site-plan attached to the petition makes it evident that the appellant gave out a detailed description of the extent of accommodation available in the suit property as also the accommodation presently in her occupation and the nature and extent of her requirement. In the pleadings, it was indeed specified that the appellant was residing on the property bearing No. “C-586/587”. The pleadings taken by the appellant in paragraph 18(a)(ii) of her petition, of course, begin with the expression “as stated above” and there had not been any earlier mention of property bearing No. “C-586/587” but, there had been detailed description in the preceding paragraphs and the site plan was also attached to the petition. The appellant further made the position clear in her cross-examination that the building in question was constructed on Plot Nos.586 and 587 jointly and she and her sister-in-law were residing in the same building as one family.
  • 18. Taking the pleadings as a whole and reading the same with the evidence, it is clear that there had not been any such mis-description of the property which would amount to a material flaw in the case of the appellant or which could have caused prejudice to the respondents-tenants.”

Object and Purpose of Pleadings

In Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242; 1987-2 SCC 555, it was held as under:

  • “The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise.”

Order VI, rule 1 and 2 of Code of Civil Procedure 1908 lay down the basics of pleading. They read as under:

  • Rule 1: Pleading: “Pleading” shall mean plaint or written statement.
  • Rule 2: Pleading to state material facts and not evidence:
  • (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.
  • (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
  • (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.

Pleadings should Receive a Liberal Construction

In Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242; 1987-2 SCC 555, it was held as under:

  • “The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial.

Deficiency in Pleadings Doesn’t Matter if the Parties Knew the Case

In Bhagwati Prasad v. Shri Chandramaul, 1966-2 SCR 286, the Constitution Bench of our Apex Court observed as under :

  • “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 matters relating to the title of both parties to the suit are touched, though 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. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.”

In Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242; 1987-2 SCC 555, relying on Bhagwati Prasad v. Shri Chandramaul, 1966-2 SCR 286, it was held as under:

  • “Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal.”

No Pedantic Approach and Hair Splitting Technicalities Permitted

In Sopan Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC 137, it was held as under:

  • “15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair­splitting technicalities.”(Quoted in: Shakti Bhog Food Industries Ltd. v. Central Bank of India, AIR 2020 SC 2721; 2020-17 SCC 260)

In Augustine @ Mervin Alexander v. Josmy @ Geetha, 2022-5 KerHC(SN) 13; 2022-4 KerLT 966, it is held that it is well settled that pleadings should receive a liberal construction. The High Court continued as under:

  • “No pedantic approach is to be adopted to defeat justice on hair splitting technicalities. Pleadings has to be construed reasonably. The contention of the parties has to be culled out from the pleadings by reading the same as a whole. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with the strict interpretation of the law. In such a case it is the duty of the court to ascertain the substance of the pleadings. Whenever the question about lack of pleading is raised, the enquiry should not be so much about the form of the pleadings. The court must find out whether in substance the parties knew the case and the issues, upon which they went to trial. Once it is found that in spite of the deficiency in the pleadings, parties knew the case and they proceeded to trial on the issues by producing evidence, it would not be open to a party to raise the question of lack of pleadings [See: Ram Sarup Gupta v. Bishun Narain Inter College AIR 1987 SC 1242].”

In the Absence of Pleading, Evidence cannot be Considered

In Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242; 1987-2 SCC 555, it was also pointed out as under:

  • “6. … It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it.”

Plea of Adverse Possession

In M. Siddiq (D) Thr. Lrs. v. Mahant Suresh Das, 2020-1 SCC 1, on the question of Adverse Possession it is pointed out that the plea of adverse possession seeks to defeat rights of true owner and law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence and that the ingredients must be set up in pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law. (Paras 748, 751, 752, 754 and 755)

Pleadings and Future Damages

In Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735; 1966-2 SCR 286, it was held as under:

  • “Once it is held that the plaintiff is entitled to eject the defendant, it follows that from the date of the decree granting the relief of ejectment to the plaintiff, the defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the plaintiff. A decree for ejectment in such a case must be accompanied by a direction for payment of the future mesne profits or damages. Then as to the rate at which future mesne profits can be awarded to the plaintiff, we see no reason to differ from the view taken by the trial Court that the reasonable amount in the present case would be Rs. 300/- per month.”

Rejection of Plaint under Order 7 Rule 11 CPC and Pleading

In Church of Christ Charitable Trust & Educational Charitable Society vs. Ponniamman Educational Trust, (2012) 8 SCC 706, it is observed as under: ­

  • “10 … It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the court, barred by any law, failed to enclose the required copies and the plaintiff fails to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order 7 Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial.
  • This position was explained by this Court in Saleem Bhai vs. State of Maharashtra, (2003) 1 SCC 557, in which, while considering Order 7 Rule 11 of the Code, it was held as under: (SCC p. 560, para 9)
    • “9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit — before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.”
  • It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. vs. Ganesh Property, (1998) 7 SCC 184 and Mayar (H.K.) Ltd. vs. Vessel M.V. Fortune Express, (2006) 3 SCC 100.
  • It is also useful to refer the judgment in T. Arivandandam vs. T.V. Satyapal, (1977) 4 SCC 467, wherein while considering the very same provision i.e. Order 7 Rule 11 and the duty of the trial court in considering such application, this Court has reminded the trial Judges with the following observation: (SCC p. 470, para 5)
    • “5. … The learned Munsif must remember that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Chapter XI) and must be triggered against them.”
  • It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order 7 Rule 11. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer J., in the above referred decision, it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code.”(Quoted in: Shakti Bhog Food Industries Ltd. v. Central Bank of India, AIR2020 SC 2721; 2020-17 SCC 260).

In Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174, the legal position is analysed as under: ­

  • “7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11, CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.” (Quoted in: Shakti Bhog Food Industries Ltd. v. Central Bank of India, AIR2020 SC 2721; 2020-17 SCC 260.)

Why should crucial documents be produced along with the Plaint or WS?

  • 1. To prevent surprise to the opposite side.
  • 2. To substantiate and assure pleadings, and ensure fair play.
  • 3. To enable the court and the opposite side to understand the case fully.
  • 4. The CPC mandates it (Order VII Rule 14 & Order VIII Rule 1A).

CPC also mandates the production of all remaining documents before framing of issues (so that the court can frame proper issues).

Documents Are Not Pleadings; But, They Support Pleadings

  • Pleadings mean Plaint or Written Statement.  They are statements of fact alone (Order VI Rule 1 CPC).
  • The documents cannot be used to supplement missing facts, and will not cure the defect of ‘not pleading’ a fact merely because the document is produced with the pleadings that contain the relevant fact.
  • The documents, even if produced along with the Pleadings, will not automatically become evidence.
  • The documents cannot be used as materials to introduce new facts (without making an amendment of the pleadings).

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