UNIT — II

 Institution of suits - Sections. 26, O.4

 Summons - Sections. 27, 28, 31 and O.5

 Interest and Costs (Sections. 34, 35, 35A, B)

 Pleading – O.6

o Fundamental rules of pleadings

 Plaint- O7

o Return and rejection of plaint – O7- R10 &11

 Written Statement- O8

o Defenses

o Set off- Counter claim;

 Parties to the suit (O.1):

o Joinder, misjoinder and non-joinder of parties

o Misjoinder of causes of action-

o Multifariousness.

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 Unit – II
Topic Order

 Parties to the suit (O.1):

o Joinder, misjoinder and non-joinder of parties

o Misjoinder of causes of action-

o Multifariousness.

 Frame of Suit – O2

 Pleading – O.6

o Fundamental rules of pleadings

 Plaint- O7

o Return and rejection of plaint – O7- R10 &11

 Institution of suits - Sections. 26, O.4

 Summons - Sections. 27, 28, 31 and O.5

 Written Statement- O8

o Defenses

o Set off- Counter claim;

 Interest and Costs (Sections. 34, 35, 35A, B) – Will be taken after
Judgment and Decree

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Karnataka Civil Rules of Practice : - 5 Description of the Proceedings.-
(1) A suit instituted in any Court subordinate to the High Court, other than a suit
cognizable by a Court of Small Causes, shall be designated an 'Original Suit' and
indicated by the abbreviation "O.S.".
(2) A suit cognizable by a Court of Small Causes shall be designated a 'Small Cause
Suit' and indicated by the abbreviation "S.C.".
(3) All proceedings in execution of decrees or orders shall be designated
'Execution Cases' and denoted by the abbreviation "Ex.C."
(4) Original proceedings other than Suits and Execution Cases shall be classified
according to the nature of the subject matter and be designated as mentioned below
and indicated by the abbreviation noted against each category:
(a) Land Acquisition Cases - L.A.C.
(b) Matrimonial Cases - M.C.
(c) Guardians and Wards Cases - G. and W.C.
(d) Probate and Succession Cases - P. and S.C.
(e) Insolvency Cases I.C.
(f) Arbitration Cases - A.C. 1[
(ff) Arbitration Suits - A.S]
(g) House Rent Control Cases - H.R.C.
(gg) Accident Claim Cases under the Motor Vehicles Act - MVC.
(ggg) Company matter,-
(a) Company Petitions - COP.
(b) Company applications - COA.
(h) Miscellaneous Cases (i.e. cases not falling under any of the above
categories)- Mis.C
(6) Revision petitions under any special enactment shall be designated as 'Revision
Petitions' with a brief reference within brackets as to the nature of the case and
indicated by the abbreviation 'REV'

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Introduction

ESSENTIALS OF SUIT
There are four essentials of a suit:
 Opposing parties
 Subject-matter in dispute
 Cause of action and
 fit Relief.

1.PARTIES TO SUIT:
ORDER 1- Rules 1-13
Introduction
Order 1 deals with the parties to a suit, the first essential of a suit. It also contains
provisions for addition, deletion and substitution of parties, joinder, misjoinder and
non-joinder of parties and objection as to misjoinder and non-joinder.
 Rule 1,2,3,3A & 7 :- Joinder of parties
 Rule 9 :- Non-joinder or misjoinder of parties:
 Rule 13 :-Objections as to non-joinder or misjoinder of parties
 Rule 10 :- Striking out, adding or substituting parties
 Rule 8 & 8A :- Representative Suit
 Rules 4 & 5 :- Provision to court
 Rule 6,10A, 11, 12, :- Other Provisions

Karnataka Civil Rules of Practice : - 6. Description of parties.-

1. The contending and opposing parties shall be described as
 Plaintiff and Defendant respectively in Suits
 Appellant and Respondent in Appeals,
 Decree-holder and Judgment-debtor in Execution Cases and

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  Petitioner and Opponent in all other proceedings.

(2) The proceedings before appellate and revisional courts, the ranks held by the
respective parties in the lower courts, shall be indicated within brackets in the cause
title.

Joinder of parties
Plaintiffs and Defendants are two parties to the suit but there can be multiple
plaintiffs and defendants and then there will be question of joinder of parties

Joinder of plaintiffs: Rule 1

Rule 1 provides for joinder of plaintiffs. It states that all persons may be joined in
one suit as plaintiffs if the following two conditions are
i. the right to relief alleged to exist in each plaintiff arises out of the same act
or transaction; and
ii. the case is of such a character that, if such persons brought separate suits,
any common questions of law or fact would arise.

The word "and" between clauses (a) and (b) makes it clear that both the above
conditions should be fulfilled." The primary object of Rule 1 is to avoid multiplicity
of proceedings and unnecessary expenses."
Govind Prasad Vs Chandar Shekhar
In a case where the two conditions of Order 1 Rule 1 is do not exist, and two or
more persons are joined in plaintiffs in one suit, the result would be mis-joinder of
plaintiffs
Joinder of defendants: Rule 3
It states that all persons may be joined in one suit as defendants if the following two
conditions are satisfied:
i. the right to relief alleged to exist against them arises out of the same act or
transaction; and
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 ii. the case is of such a character that, if separate suits were brought against such
persons, any common question of law or fact would arise."
Sharat Chandra Vs Sarala Bala Ghose
The object of providing such provision in Rule 3 is to avoid multiplicity of suits and
needless expense, if it could be cone without embarrassment of parties and courts.

No Joinder if Delay is caused – Rule 2 & 3A

R.2: Power of Court to order separate trials- In case the Court finds that any joinder
of plaintiffs may embarrass (to make somebody feel uncomfortable) or delay the
trial in the suit, the court may allow the plaintiffs to elect either to continue or seek
separate trials or may itself suo motu order separate trials or may even make such
order as may be expedient.
R.3A: Power to order separate trials where joinder of defendants may embarrass
or delay trial- The Court may order separate trials or make such other order as
may be expedient in the interest of justice where it appears to it that the joinder of
defendants may embarrass or delay the trail of the suit.

Necessary and Proper Parties

There is an essential distinction between a necessary party and a proper party to a
suit.
 A necessary party is one whose presence is indispensable to the constitution
of the suit, against whom the relief is sought and without whom no effective
order can be passed.
 A proper party is one in whose absence an effective order can be passed, but
whose presence is necessary for a complete and final decision on the
question involved in the proceeding.
 In other words, in absence of a necessary party no decree can be passed,
while in absence of a proper party a decree can be passed it relates to the

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 parties before the court. His presence, however, enables the court to
adjudicate more "effectually and completely","
Two tests have been laid down for determining the question whether
whether particular party is a necessary party to a proceeding."
 There must be a right to some relief against such party in respect of the
matter involved in the proceeding in question; and
 It should not be possible to pass an effective decree in absence of such a
party

Examples
 in a suit for partition, all sharers are necessary parties.
 in an action against selection and appointment by an authority, candidates
who are selected and appointed are directly affected and, therefore, they are
necessary parties.
 a subtenant is only a proper party in a suit for possession by the landlord
against his tenant.
 grandsons are proper parties to a suit for partition by sons against their
father.
 a local authority for whose benefit land is sought to be acquired by the
Government is a proper party in land acquisition proceedings.
Vishnu Vs Rajan Textile Mills
Necessary parties.—In a suit for possession the defendant derived title from auction
purchaser in liquidation proceedings of the company. The plaintiff sued for
declaration that the auction proceedings and the subsequent conveyance by auction
purchaser to the defendant were void in law under a certain act. The liquidator is
a necessary party and in his absence, the suit for declaration must fail.

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Non-joinder or misjoinder of parties: Rule 9
non-joinder - Where a person, who is a necessary or proper party to a suit has not
been joined as a party to the suit, it is a case of non-joinder.
Misjoinder of parties - Conversely, if two or more persons are joined as plaintiffs
or defendants in one suit and they are neither necessary nor proper parties, it is a
case of misjoinder of parties.

 The general rule is that a suit cannot be dismissed only on the ground of
non-joinder or misjoinder of parties." Nor a decree passed by a competent
court on merits will be set aside on the ground of misdescription of the
defendant."
 However, this rule does not apply in case of non-joinder of a necessary
party.
Public service Commission, Uttaranchal Vs Mamta Bisht
The proviso to rule 9 of Order1 of the code provides that non-joinder of necessary
party would be fatal

Jagan nath Vs Jaswant singh If the person who is likely to be affected by the decree
is not joined as a party in the suit or appeal, the suit or appeal is liable to be
dismissed on that ground alone.

B. Prabhakar Rao v. State of A.P, where all the affected persons had not been
joined as parties to the petition, and some of them only were joined, the Supreme
Court took the view that the interests of the persons who were not joined as parties
were identical with those persons who were before the court and were sufficiently
and well represented and, therefore, the petition was not liable to be dismissed on
that ground.

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Objections as to non-joinder or misjoinder of parties: Rule 13
 All objections on the ground of non-joinder or misjoinder of parties must be
taken at the earliest opportunity, otherwise they will be deemed to have been
waived.
 But if the objection as to non-joinder of necessary party has been taken by
the defendant at the earliest stage and the plaintiff fails to join or declines to
add the necessary party, he cannot subsequently be allowed in appeal to
rectify the error by applying for amendment.

Church of Christ Charitable Trust & Educational Charitable Society Vs

Ponniamman Educational Trust
It has been held by the Supreme Court that where the plaintiff persists in not
impleading a necessary party in spite of objection, the consequences of non-joinder
may follow.
Jagadish Chandra Vs Kameshwar Singh
Rule 13 of Order 1 provides that where an objection is to be taken to the frame of
the suit on account of defect of parties, it should be done at the earliest possible
opportunity, and before the settlement of the issues. If this is not done the
objections would be deemed to have been waived.

Striking out, adding or substituting parties: Rule 10

Rule 10 (1)Adding or substituting plaintiffs:
To bring a case within this sub-rule, the following three conditions must be satisfied:
i. The suit has been filed in the name of a wrong person as plaintiff;
ii. Such mistake must be bona fide; and
iii. The substitution or addition of the plaintiff is necessary for the
determination of the real matter in dispute.

If after the filing of the suit, the plaintiff discovers that he cannot get the relief he
seeks without joining some other person also as a plaintiff or where it is found that
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some other person and not the original plaintiff is entitled to the relief, as prayed
for, an application for addition or substitution of the plaintiff can be made. Such
an application, however, should be filed within a reasonable period . The power to
implead a party can also be exercised by the court suo motu.
Rule 10 (2) - Striking out or adding parties
Sub-rule (2) of Rule 10 empowers the court to add any person as a party to the suit
on either of the two grounds:
i. Such person ought to have been joined as a plaintiff or a defendant, and is
not so joined; or
ii. Without his presence, the question involved in the suit cannot be completely
decided.

Transposition of parties
In transposition, a person who is already on record as a plaintiff or a defendant
seeks his transposition from one capacity to another capacity; i.e. from plaintiff to
defendant or vice versa.
For adding or substituting plaintiffs following conditions must be fulfilled:
i. The suit has been filed in the name of wrong plaintiff
ii. Such mistake must be bona fide;
iii. The substitution or addition of the plaintiff is necessary for the
determination of the real matter in dispute.

Since primary object of Order 1 Rule 10 of the Code is to avoid multiplicity of

proceedings, there is no reason why the doctrine of addition or striking out parties
does not apply to transferring the parties from one side to the other side. A court
can, therefore, order transposition of parties in an appropriate case. This can be
done either on an application by a party or suo motu."

Razia Begum v. Anwar Begum, A sought a declaration that she was the legally-
wedded wife of B. One C claimed to be another married wife of B and sought to

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be added as a party defendant. The prayer was granted since the declaration sought
for concerned the status of marriage and legitimacy of children and would affect
the parties for generations to come.
 Thus, the test is not whether the plaintiff agrees to adding a party as a
defendant or not,
 but whether the relief claimed by the plaintiff will directly affect the
intervener in the enjoyment of his rights.
 The court must, in every case, record reasons in support of its order
impleading or refusing to implead a party

Representative Suit :- Rule 8

Rule 8 deals with the representative suit which enables filing of a single suit on
behalf of other persons interested in subject-matter of the suit. Thus, it is a rule of
convenience enacted to avoid multiplicity of proceedings. General rule of litigation
is that all person interested in a suit must be joined as parties to it. Order I Rule 8
provides an exception to this rule.

 When there are numerous person either as plaintiff or defendant having the
same interest in one suit, then one of them may file or defend in a suit with
the permission of the court, it is called Representative Suit.
 In another words, A suit by one or more persons under the rule on behalf
of themselves and others having the same interest in the suit is called a
Representative Suit.

Object: Object of this provision is to save time and expense, avoid multiplicity of
suits and prevent harassment of parties. It is merely an enabling provision. It does
not compel an individual to represent body of persons.

For the rule to apply, the following conditions must be fulfilled:

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 1. The person must be numerous.
2. There must be same interest or community of interest in all such
persons.
3. The necessary permission of the court must have been obtained.
4. Notice to all the persons interested in the suit must be given at the
expense of plaintiff.

Rule8 (2) Notice: Since the judgement in a representative suit operates as a res
judicata and binds all the parties so represented [See Rule 8 (6) read with Section
11 Explanation VI], it is therefore necessary that notice shall be given to all such
persons otherwise decree will not bind them. Such notice can be made by personal
service or if not so practicable, by public advertisement [Order I Rule 8(2)]. It is
the duty of the court to see that proper notices are issued which are sufficient to
provide information to the person interested in the suit.
Who may institute Representative suit: A representative suit is one that is filed by
one or more persons on behalf of themselves and others having same interest in
the suit.
 Order I Rule 8(3) provides that a person may also apply to be added as a
party after such suit is instituted in a court.
 Order I Rule 8(5) further provides that persons suing or defending must
proceed with due diligence otherwise they will be removed as a party from
such suit.
 Order I Rule 8(4)- Abandonment or compromise: No abandonment or
withdrawal or compromise can be made in a representative suit unless
i. the court has given notice to all persons interested in the suit ; and
ii. The court has granted leave to compromise such suit

The Supreme Court in Aliyathammuda Beethathebiyyappura Pookoya v. Pattakal

Cheriyakoya held that in order to compromise a representative suit, it is necessary

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to obtain leave of the court. Before the grant of leave, the court has to give notice
in such manner as it may think fit to such persons as may it appear to be interested
in the suit. Representative Suits will be binding on all persons so represented in the
suit. It does not apply in writ proceedings.

Rule 8A:- Power of Court to permit a body of persons to present opinion or to take
part in the proceedings- This provision was inserted by the Amending Act of 1976.
It provides that if during the trial of a suit, it appears to the court that a person or
body of persons is interested in any question of law which is directly and
substantially in issue in the suit, the court may permit the person to present his
opinion on that question of law, if such permission is necessary in the public
interest.

Other Provisions
Rule 10A:- Power of Court to request any pleader to address it- If a party is not
represented by any pleader and is having an interest in the suit or proceeding which
may be affected by the court’s decision, then the court may request any pleader to
address it as to any interest which is likely to be affected by its decision on any
matter in the issue.
Rule 11:- Conduct of Suit- The Court may give the conduct of a Suit to such
persons as it deems proper.

Rule 12:- Appearance of one of several plaintiffs or defendant for others- If there
are more than one plaintiff or defendant, then all of them may authorise one or
few of them to appear, plead or act for all of them in the suit or proceedings
concern. Such authority must be in writing and signed by the party giving it and
must be filed in the court.

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General principles
From the relevant provision of the Code and various decisions of the Apex
Court, the following principles regarding parties to suit emerge:
1. A question of joinder of parties is a matter of procedure and not of
substantive right.

2. The Code of Civil Procedure confers very wide and extensive

discretionary powers on a court in the matter of joinder of parties.

3. The provisions relating to joinder of parties, therefore, should be

construed liberally.
4. A plaintiff is a dominus litis and has a right to choose his adversary against
whom he wants to fight and from whom he seeks relief. It is not province of
a court of law to interfere with that right.

5. But it is also the duty of the court to do justice. And to achieve that end,
the court may add, delete, substitute or transpose any party not- withstanding
objection of the plaintiff.

6. No person can be joined as plaintiff without his consent.

7. An order of addition, deletion, substitution or transposition of a party can

be made at any stage of the suit irrespective of the law of limitation. Such an
order can be passed on such terms as the court deems fit.

8. An order of addition, deletion, substitution or transposition can be made

either on an application by a party or by a court suo motu.

9. Where a defendant is added, the plaint should be amended.

10. Objection as to misjoinder or non-joinder of parties should be taken

at the earliest possible opportunity.

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 Misjoinder of causes of action & Multifariousness.
FRAME OF SUIT:
ORDER II Rule 1-7

Order II Rule 1 : Frame of Suit :- provides for the comprehensiveness of a suit by

providing that the plaintiff must frame i.e. draft his plaint in such a way that it
includes all the grounds for final decision upon the subject matter in dispute so that
there are no further litigation on the same cause of action.

The penalty for non-compliance with the rule is provided partly by section 11
Explanation IV
Explanation IV of section 11 - lays down that any matter which might and ought to
have been made a ground of attack or of defence in a former suit will be deemed
to have been a matter directly and substantially in issue in such suit and will not be
allowed to be re-opened in a subsequent suit, between the same parties, although
it was not actually adjudicated upon in the former suit.

Order II Rule 2- Suits to include the whole claim :- : deals with the splitting of
claims which provides that primarily in conformity with Rule 1 the plaintiff must
include all the claims he has against the defendant.
 Plaintiff may relinquish any part of the claim in order to bring the suit within
the jurisdiction of a particular court.
 If the plaintiff omits to claim or intentionally relinquishes any portion of his
claim, then he shall be barred to bring any fresh suit in respect of omitted or
relinquished claim (this provision applies for every single claim). Once you
have waived your right to claim, then you cannot claim it. Order II Rule 2
applies to both the parties and applies where the earlier suits has been
decided on merits.

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  The purpose of this rule is to avoid multiplicity of suits and to avoid further
litigation in same cause of action. It says further if there is a single cause of
action then all claims related to it should be claimed in one suit. So cause of
action gives rise to certain reliefs and claims.

Cause of action

Claims Reliefs

Omits or relinquishes Omits or Relinquishes

Bar on Plaintiff to claim later on With the leave of court (Can claim)
Without the leave of court (cannot claim)

K.Palaniappan Vs Valliammal
To invoke Order 2 Rule 2 the following three questions should be asked: .
1. Whether the cause of action in the previous suit and the subsequent suit is
identical?
2. Whether the relief claimed in the subsequent suit could have been given in
the previous suit on the basis of the pleadings made in the plaint?
3. Whether the plaintiff Omitted to sue for a particular relief on the cause of
action which has been disclosed in the previous suit.

State of Maharashtra Vs National Construction Co

The test for finding out whether a subsequent suit be barred because of the
previous suit is whether the claim in the second suit is in fact, founded on a cause
of action which was the foundation of the former suit. If the answer is in the
affirmative, the bar of Order 2 Rule 2 would apply. But if it is in the negative, it
would not be attracted.

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Joinder of cause of action
One of the essential elements of a suit is cause of action which is a bundle of rights
which the plaintiff seeks to prove in order to obtain judgement in his favour. Rule
3 to 7 of Order II deals with joinder of cause of action in one suit in certain
circumstances where:
 The cause of action arises from the same act or transaction, and
 Common question of law or fact must have been involved.

Rule 3: Joinder of cause of action- This rule enables any plaintiff to join several
cause of actions in single suit when these cause of actions are against the same
defendant. Further it provides that for the purpose of assessing the pecuniary
jurisdiction in such suit the aggregate of the value of subject matter involved must
be taken into consideration.

Ramdhan Puri Vs Lachmi Narain

Mis-joinder of parties and causes of action.—As provided in section 99 and O II,
rue 7, the mis-joinder is treated only as an irregularity and no suit can be dismissed
on the mere ground of mis-joinder of causes of action. A plea of mis- jointer raised
in appeal as a ground for reversing the decree or for remand of the case unless it
has affected the merits of the case or the jurisdiction of the Court.

Rule 4: Only certain claims to be joined for recovery of immovable property- This
rule provides for the instances in which certain cause of action may be joined
without the leave of the court in a suit for recovery of immovable property, i.e.
i. Claims for mesne profits or for arrears of rent- in respect of property
claim
ii. Claims for breach of contract- damage for breach of contract
iii. Claim in which relief is based on same cause of action,-
(Partition and possession of property )

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 iv. In a suit for foreclosure or redemption, a claim for possession of
immovable property.

In other suits no cause of action shall be joined without the leave of the court.

Section 2(12) :- mesne profits” of property means those profits which the person
in wrongful possession of such property actually received or might with ordinary
diligence have received therefrom, together with interest on such profits, but shall
not include profits due to improvements made by the person in wrongful
possession;
Ganeshi Lal Vs Joti Pershad
The Supreme Court of India held that so long as no question of limitation is
involved there is no objection to a claim for redemption and one for possession
and partition being joined together in the same suit brought by a co-mortgagor
against another mortgagor who alone has redeemed the mortgaged property
belonging to the family.

Rule 5: Claims by or against executor, administrator or heir- If there is a claim by

or against the administrator, executor or heir it shall not be joined with the claims
by or against him personally, unless the claims are with respect to the estate in
which such person are interested.

Rule 6: Power of court to order separate trials- If there are joinder of several cause
of actions and these joinders embarrass or delay the trail, the court may order for
a separate trial.

Rule 7: Objection as to misjoinder: Objection as to misjoinder shall be raised at

the earliest possible opportunity. In cases, where issues are settled then it shall be
raised at or before such settlement unless the ground of such objection has
subsequently arisen. If such objection has not been raised then it shall be deemed
to have been waived.

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 Multifariousness
The term "multifariousness" is not used in the Code of Civil Procedure. The
multifarious suit is a suit with defects. Such defects are irregular in nature which
can be set right by the Court. It is a suit where there are misjoinder of parties and
misjoinder of cause of action. Therefore, multifariousness is a procedural defect of
misjoinder of parties under order I, rule 1, rule 3 and misjoinder of causes of action
under order II, rule 3

Narsingh Das vs Mangal Dubey in 1883 The High Court of Judicature at Allahabad
first used the term "multifarious suit" in the case of - When there is a misjoinder of
parties and misjoinder of causes of action then it is a defect, technically called as
multifariousness and the suit called as multifarious suit.

Generally, there are three types of misjoinder–

1. Misjoinder of Parties - under Order I, Rule 9 read with Order I, Rule 1 and
Rule 3.
2. Misjoinder of Causes of action - under Order II, Rule 3
3. Misjoinder of Parties and Misjoinder of Causes of action, called as
Multifariousness”.

The Calcutta High Court in Premlata Nahata And Anr. vs Chandi Prasad
Sikaria,held that the defendant's application under Order 7 Rule 11 (d) of the Code
of Civil Procedure. His case is that the plaint is liable to be rejected, because it is
apparent from the statements in it that the plaintiff's suit is barred by law; the law
that bars the suit is multifariousness.

Effect of Multifariousness in a Suit

The provisions related to multifariousness in suit are given under Section 99 read
with order 1 rule 9, CPC,1908.

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Section 99 :- No decree to be reversed or modified for error or irregularity not
affecting merits or jurisdiction.—
No decree shall be reversed or substantially varied, nor shall any case be remanded,
in appeal on account of any misjoinder or non-joinder of parties or causes of action
or any error, defect or irregularity in any proceedings in the suit, not affecting the
merits of the case or the jurisdiction of the Court:
Provided that nothing in this section shall apply to non-joinder of a necessary party.

Jankinath vs Ramarunjan, Calcutta High Court observed that “A mere misjoinder

or non-joinder of parties or misjoinder of causes of action does not make a suit
void unless there is non-joinder of necessary party.”

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 Fundamental rules of pleadings –

Order VI- Rule 1-18

Plead + Proof = Relief
What you pleaded should be proved
Introduction :
Order 6 deals with pleadings in general.
 Rule 1 defines pleading, while
 Rule 2 lays down the fundamental principles of pleadings.
 Rules 3 to 13 require the parties to supply necessary particulars.
 Rules 14 and 15 provide for signing and verification of pleadings.
 Rule 16 empowers a court to strike out unnecessary pleadings.
 Rules 17 and 18 contain provisions relating to amendment of pleadings.

RULE 1: PLEADING:
"Pleading" is defined as plaint or written statement. "Pleadings are statements in
writing drawn up and filed by each to a case, stating what his contentions will be at
the trial and giving all such details as his opponent needs to know in order to
prepare his case in answer."

Karnataka Civil Rules of Practice :- Section 2(2) "Pleadings" shall include plaints,
written statements, memoranda of appeals, cross-objections, original petitions,
applications, counter statements, replies, rejoinders and every statement setting out
the case of a party in the matter to which the pleadings relate.

OBJECT
 The whole object of pleadings is to bring parties to definite issues and to
diminish expense and delay and to prevent surprise at the hearing.

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  A party is entitled to know the case of his opponent so that he can meet it.
 In other words, the sole object of pleadings is to ascertain the real disputes
between the parties, to narrow down the area of conflict and to see where
the two
Throp Vs Holdsworth :-
In fact, the whole meaning of the system (pleading) is to narrow down the parties
to definite issues, and thereby to diminish expense and delay, especially as regards
the amount of testimony required on other either side at the hearing.

Virendra Kashinath Vs Vinayak N Joshi

The object of the rule is two fold.
1. First is to afford the other side intimation regarding the particular facts of his
case so that they may be met by the other side.
2. Second is to enable the court to determine what is really the issue between
the parties.

RULE 2: BASIC RULES OF PLEADINGS

Sub-rule (1) of Rule 2 lays down the fundamental principles of pleadings. It reads
as under:

2(x). 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.

On analysis, the following general principles emerge:

i. Pleadings should state facts and not law;
ii. The facts stated should be material facts;
iii. Pleadings should not state the evidence; and
iv. The facts should be stated in a concise form.
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Pleadings should state facts and not law :-
Every pleading must contain only material facts on which the party pleading relies
i.e. unnecessary facts having no bearing upon the cause of action must not be stated
It is for the court to apply the law to the facts pleaded. Thus, existence of any
custom or usage is question of fact and it must be pleaded but a plea about
maintainability of suit raises question of law and need not be pleaded
Material facts

The facts stated should be material facts

The second principle of pleadings is that they should contain a statement of
material facts and material facts only. The expression "material facts" means all facts
upon which the plaintiff's cause of action or the defendant's defense depends, or,
in other words, all those facts which must be proved in order to establish the plain-
tiff's right to relief claimed in the plaint or the defendant's defense in the written
statement.

Facts and not evidence

The third principle of pleadings is that the evidence of facts, as distinguished from
the facts themselves, need not be pleaded. In other words, the pleadings should
contain a statement of material facts on which the party relies but not the evidence
by which those facts are to be proved.

Concise form
The fourth and last general principal of pleadings is that the pleadings should be
drafted with sufficient brevity and precision. The pleading must be precise, specific
and unambiguous.
 The words "in a concise form" are definitely suggestive of the fact that brevity
should be adhered to while drafting pleadings.

23
  Of course, brevity should not be at the cost of excluding necessary facts.
That all such material facts must be stated in concise form i.e. in brief and to the
point,
Rule 2 (2) : every pleading shall be divided into paragraphs, numbers consecutively
and every allegations should be contained in separate paragraphs.
Rule 2 (3): Dates, sums and numbers should be expressed in figures as well as in
words

Rule 3- Form of Pleading : The Code also provides the form of pleading in
Appendix A of the Code.
 Forms 3(1) to 3(49) - Plaint for Different type of suit
 Forms 4(1) to 4(16) – Written Statements

Rule4- Particulars to be given where necessary :- Wherever

 misrepresentation,
 fraud,
 breach of trust,
 wilful default or
 undue influence

are pleaded in the pleadings, particulars with dates and items should be stated.

What particulars are to be set out in the pleadings must depend upon the facts of
each case. As a general rule, so much certainty and particularity should be insisted
upon as is reasonable, having regard to the circumstances and the nature of the
acts.
Ladli Prashad Vs Karnal Distillery Co.Ltd
If the particulars stated in the pleading are not sufficient and specific, the court
should before proceeding with the trial of the suit, insists upon the particulars,

24
which gave adequate notice to the other side of the case intended to be set up.
Rule 6: Condition Precedent- Any condition precedent, the performance or
occurrence of which is intended to be contested, shall be distinctly specified in his
pleading by the plaintiff or defendant, as the case may be; and, subject thereto, an
averment of the performance or occurrence of all conditions precedent necessary
for the case of the plaintiff or defendant shall be implied in his pleading.

The performance of a condition precedent need not be pleaded since is implied

in the pleadings. Non-performance of a condition precedent, however, must be
specifically and expressly pleaded."

Ex :- In the case of claim on a cheque, an allegation of notice of dishonor or facts

excusing such notice was held essential

Veeraya Vs N.S. Chowdhury

In a suit for specific performance, the plaintiff must ever in his plaint that he was
ready and willing to perform his part of the contract and if he said averment is
traversed, he must prove the said averment.

Rule 7: Departure- No subsequent pleading shall contain any new ground of claim
or contain any inconsistent fact to the previous pleading except by way of
amendment under Rule 17.

Rule 8: Denial of Contract- It provides that, a bare denial of a contract alleged by

the opposite party shall be construed. Denial of facts of contract and the legality or
sufficiency in law of such a contract must be specifically denied.
Kalyanpur LW Vs State of Bihar
The provision of Order 6 Rule 8 and Order 8 Rule 2 – leave no doubt that the
party denying merely factum of contract and not alleging its unenforceability in law
must be held bound by the pleadings and be precluded from rising the illegality or
25
validity of the contract.
Rule 9: Effect of document to be stated- Wherever the contents of any document
are material, it shall be sufficient in any pleading to state the effect thereof as briefly
as possible, without setting out the whole or any part thereof, unless the precise
words of the document or any part thereof are material.
L.N Ashwathama Vs P Prakash
It is held that : It is not enough for a party to say simply that by virtue of a certain
deed he is entitled to a property claimed by him. The party is bound to state the
nature of the deed on which he relies in deducing the title.

Rule 10: Malice, Knowledge, etc- Wherever it is material to allege malice,

fraudulent intention, knowledge or other condition of the mind of any person, it
shall be sufficient to allege the same as a fact without setting out the circumstances
from which the same is to be inferred.

Rule 11: Notice- Wherever it is material to allege notice to any person of any fact,
matter or thing, it shall be sufficient to allege such notice as a fact, unless the form
or the precise terms of such notice, or the circumstances from which such notice is
to be inferred are material.

Rule 12 : Implied contract or relation : Implied contracts or relations between

persons may be alleged a fact, and the series of letters, conversations and the
circumstances from which they are to be inferred should be pleaded generally
Haji Mohd.Ishaq Vs Mohd. Iqbal and Mohd Ali
Where no express contract was pleaded in the plaint but was clearly pleaded was
supply of goods by the plaintiff on its own account and acceptance of them by the
defendants for payment to the plaintiff, it is called an implied contract.

26
Rule 13- Presumption of Law : Facts which the law presumes in favour of a party
or as to which the burden of proof lies upon the other side need not be pleaded.
 Ex : - Section 118 & 119 of NI Act – holder of cheque presumed to
be owner of the cheque.
 Hindu joint family property

Rule 14: Pleading to be signed-

This rule talks about the requirement of signature so as to take the responsibility
of the facts being stated by the litigant in his pleading. Pleading shall be signed by
the party (litigant) or by a duly authorized agent, who is authorized by the party to
sign as such. The pleading shall also be signed by the pleader of the party, if
engaged.
Union Bank of India Vs Naresh Kumar
The supreme court held that the dismissal of a suit by bank for recovery of loan on
ground of plaint being not signed and verified by competent person, is not proper.

Rule 14A: Address for service of notice- This rule, requires for the mention of the
addresses of the parties in the pleadings and other formalities and actions that need
to be taken by the parties during the entire suit.
 It provides that, the address be called a registered address and its change
must be duly given notice of, as the summons or any other process will be
affected upon such addressee.

 (5) Where the registered address of a party is discovered by the court to be

incomplete, false or fictitious, the court may, either on its own motion, or
on the application of any party, order—
o (a) in case where such registered address was furnished by a plaintiff,
stay of the suit, or

27
 o (b) in case where such registered address was furnished by a
defendant, his defence be struck out and he be placed in the same
position as if he had not put up any defence.

Rule 15: Verification of pleadings- Every pleading when writing and signed as
required, must be verified at the foot of the plaint or written statement i.e. after the
signature of the party, and if there are more than one party then it must be verified
by any one of the parties.
 Furthermore, the rules provide for, the manner in which the verification
shall be written i.e.,
 It shall specify by paragraph and numbers of the pleadings, of which
 What he verifies on his own knowledge and
 What he verifies upon information received
 What he believed to be true
 It must also state the date and the place on which the signature is
placed for verification.
 Another important requirement of the pleadings is that it must be duly
supported by an affidavit of the person verifying.

Effect of defective verification :- Bhikaji Keshao Joshi v Brijlal Nandlal A pleading

which is not verified in the manner required by this rule may be verified at a later
Stage of the suit, even after the expiry of the limitation period. The omission to
verify a pleading is a mere irregularity within the meaning of section 99 of the Code.

Consequences of not following these Rules of Pleading :- Rule 16,17 & 18

Rule 16: Striking out pleadings- The power provided under this rule may be
exercised by the court either suo motu or on the application of any of the parties.
The striking out here means that the paragraphs will not read as the part of the
pleadings and thus no evidence shall be given to its proof. This striking out may be

28
ordered at any stage of the proceedings.
The court will allow striking out or amending certain matters in any pleading which
are as follows
i. Which may be unnecessary, scandalous, frivolous or vexatious, or
ii. Which may tend to prejudice, embarrass or delay the fair trial or
iii. otherwise an abuse of the process of the court.

This is also called a compulsory amendment. However, it is an exception to normal

practice that a court cannot direct parties as to how they should prepare their
pleadings. The power to strike out pleadings is extraordinary in nature and must
be exercised by the court sparingly and with extreme care, caution and
circumspection

Power of the Court to strike out pleadings :- Abdul Razak Vs Mangesh R Wagle —
The Court can strike off the pleadings only if it is satisfied that the same are
unnecessary, scandalous, frivolous, or vexatious or “tend to pre-justice, embarrass
or delay the fair trial of the suit or the Court is satisfied the suit is an abuse of the
process of the Court. The power to do so has to be exercised with great care and
circumspection.”
Madiraju Venkataramana Vs Ramachandra Reddy
Application for striking out pleadings in terms of O VI, rule 16 can be resorted to
at any stage of proceedings.

Rule 17 - Amendment of Pleadings : According to this rule, the court may allow
any party to a suit to amend his pleading as may be just for the purpose of
determining the real question in dispute between the parties. This power is
discretionary which must be exercised in a sound manner.
Before allowing an amendment a court should consider the following four points:
1. Interest of justice
2. Determination of real question in controversy between the parties.

29
 3. Necessary to prevent multiplicity of suits.
4. Party exercise due diligence
Above consideration has to be taken into account while deciding the question of
amendment of pleading.
 There was an amendment in C.P.C. which has been enforced in 2002 - On
this point, Proviso to Rule 17 itself mention that the court should not allow
amendment after the commencement of trial unless it comes to the
conclusion that despite due diligence, the matter could not have been raised
by the party before such commencement

Malla Reddy Vs Future Builders Co-operative Housing Society

Order VI of the Code of Civil Procedure deals with the striking out of the
pleadings. The court is empowered under this rule to strike out any matter in the
pleadings on such ground. On the other hand O VI rule 17 of the code of civil
procedure empowers the court to allow either party to alter or amend his own
pleadings and on such application the court may allow the parties to amend their
pleadings subject to certain conditions enumerated in the said rule.'”

Rajesh Kumar Aggarwal v K K Modi

When provision under first part of rule 17 is discretionary while the second past is
mandatory and enjoins the Court to allow all amendments which are necessary for
the purpose of determining the real question in controversy between the parties.

Amendment of defective plaint :- Mohan Raj Vs Surendra Kumar Even very

defective pleadings may be permitted to be cured, so as to constitute a cause of
action where there was none, provided necessary conditions such as payment of
either any additional Court-fee or of costs of other side are complied with. It is
only, if lapse of time has barred the remedy on a newly constituted cause of action
that the Court should ordinarily refuse prayers for amendment of pleadings.

30
Rule 18: Failure to amend after order- Where a pleader after obtaining leave to
amend does not amend his pleading within the time specified or within 14 days
(when no time is specified), he shall not be permitted after such time to amend his
pleading unless a time is extended by the court, in regards to the facts and
circumstances of the case.

Dilbagh Rai Jerry Vs UOI

Where no steps are taken to carry out the amendment for several months after the
order, refusal to allow amendment is justified.

Plaint – Order VII – Rule 1 -18

Introduction
The term Plaint has not been defined in the Code. However, it can be defined as
a statement of claim by presentation of which the suit is instituted. It is pleading of
the plaintiff. Order VII lays down rules relating to plaint.
 Rules 1-8 deals with particular required in a plaint.
 Rule 9 – Procedure on plaint being Admitted
 Rule 10 to 10B :- Return of Plaint
 Rule 11-13 –Rejection of Plaint
 Rule 14 – 17 :- Documents relied on in Plaint

Order VII should be read with Section 26 of CPC

Meaning: Plaint means a statement in writing of a cause of action in which the

relief is claimed is set out in detail or a document by presentation of which a suit is
to be instituted.

Rule 1 of Order VII contents that a plaint must contain certain particulars required

31
to be stated in the plaint:
1. Name of the court (For e.g. in the Matter of Civil Judge Junior Division) in
which the matter is to be tried [Rule 1(a)],
2. The name, description and place of residence of plaintiff [Rule 1(b)],
3. The name, description and place of residence of defendant [Rule 1(c)],
4. The fact of any of the party being a minor [Rule 1(d)],
5. The cause of action (Pleadings) [Rule 1(e)],
6. Facts showing that the court has jurisdiction [Rule 1(f)],
7. Relief claimed by the Plaintiff, simply or in alternative [Rule 1(g), 7 & 8],
8. Where the Plaintiff has allowed set-off or relinquished a portion of his claim,
the amount so relinquished [Rule 1(h)],
9. The valuation of the suit [Rule 1(i)],
The plaintiff must state in the plaint the valuation of the subject-matter
of the suit for the purposes of pecuniary jurisdiction and court fees.
 for example, in a suit for declaration or in a suit for injunction
or for possession of immovable property. In such a case, the
plaintiff should distinctly state the valuation of the suit for the
purpose of jurisdiction of the court and for the purpose of court
fees

Kuldeep Singh v. Ganpat Lal the Supreme Court stated, The object underlying
Order 7 Rule 1(e), which requires that the plaint shall contain the particulars about
the facts constituting the cause of action and when it arose, is to enable the court to
find out whether the plaint discloses the cause of action because the plaint is liable
to be rejected under Order 7 Rule 11 CPC if it does not disclose the cause of action

RULE 2 – In money suit :- In a money suits, as a general rule, where the plaintiff
seeks for recovery of specific amount, the precise amount must be stated in the
plaint. For e.g. the amount claimed must not be any uncertain numbers i.e. approx

32
Rs. 10,000, etc. The exact amount must be stated.
However, when the plaintiff sues for mesne profits or for unsettled accounts or for
movables where the value cannot be estimated by due diligence, the approximate
amount may be claimed in the plaint

Rule 3 : Where the subject matter of the suit is immovable property : Where the
subject matter is an immovable property, a description of the property sufficient to
identify the same .

Zarif Ahmad Vs The LRs of Mohd Farooq

The object of the provision is that the description of the property must be sufficient
to identify it. The property can be identifiable by boundaries, or by number in a
public record of settlement or survey. Even by plaint map showing the location of
the disputed immovable property, it can be described.

Rule 4 :- When plaintiff sues as representative:- According to this rule, if the

plaintiff files a suit in representative capacity, the plaint must show the following:
i. that the plaintiff has an actual existing interest in the subject-matter, and
ii. that he has taken the steps that may be necessary to enable him to file a
representative suit.

Ram chand Vs Thakur Janki Ballabbji

It has been held by the Supreme Court that a person who has made substantial
donation to a temple can maintain a suit under this rule on behalf of the deity
against a trustee guilty of mismanagement.

Rule 6 - Ground of exemption from limitation law:

where the suit is barred by limitation, it is necessary for the plaintiff to show
the ground of exemption in the plaint. The court may grant exemption on

33
such grounds if it thinks fit. But the proviso empowers the court to permit the
plaintiff to rely on a new ground for exemption if it is not inconsistent with
the grounds mentioned in the plaint.

Rule 7: Relief to be specifically stated :

 Every plaint must state specifically the relief claimed by the plaintiff either
simply or in the alternative.
 Where the relief is founded on separate and dis- tinct grounds, they should
be so stated.
 Where the plaintiff is entitled to more than one relief in respect of the same
cause of action, it is open to him to claim all or any of such reliefs. But if he
omits, except with the leave of the court, to sue for any particular relief, he
will not afterwards be allowed to sue for the relief so omitted.

Rajendra Tiwary Vs Basudeo Prasad (2002)

It is not necessary to ask for general or other relief. But the general relief
usually prayed for by the plaintiff in the plaint in the following terms;
“The plaintiff prays for such further or other relief as the nature of the case
may require.”
Strictly speaking, this type of prayer is not necessary since such relief may,
granted by the court as if it has been asked for, provided it is not inconsistent
with the specific claim raised in the pleadings. The same rule applies to a
relief claimed by the defendant in his written statement

Union Of India Vs Ibrahim Uddin

Relief not founded on pleadings cannot be granted. No decision can be based
on grounds outside the pleadings of the parties. No evidence is permissible
in absence of pleadings. A court cannot travel beyond the pleadings and no
party can lead evidence on an issue not raised in the pleadings.
34
Rule 8 Relief founded on separate grounds.—Where the plaintiff seeks relief in
respect of several distinct claims or causes of action founded upon separate and
distinct grounds, they shall be stated as far as may be separately and distinctly.

Rule 9: Procedure on admitting Plaint- This rule provides that in the event of the
court issuing summons to the defendant, the plaintiff will be directed to present as
many copies of the plaint as there are defendants, in the court, within 7 days of the
order issuing summons. The plaintiff must also furnish the fees for issuing such
summons.
Documents relied on in plaint: Rules 14-17
Rule 14: Production of documents on which plaintiff sues or relies- the plaintiff to
produce at the time of the presentation of a plaint copies of all documents on which
he sues or seeks to rely.
 It also provides for the consequences of non-production of
documents. It lays down that a document which ought to be
produced in the court by the plaintiff when the plaint is presented or
to be entered in the list to be added or annexed to the plaint, and is
not produced or entered accordingly, shall not, without the leave of
the court, be received in evidence on his behalf at the hearing of the
suit.

Sudhir Kumar Vs Bank of India

The object underlying Rule 14 is to exclude the production of documents of a
doubtful nature at a later stage. The court has wide discretion to allow or disallow
production of documents at a later stage having regard to the facts and
circumstances of each case.

35
This provision, however, does not apply to the following documents:
i. documents reserved for the purpose of cross-examination of the defendant’s
witnesses; or
ii. documents handed over to a witness merely to refresh his memory.'

Salem Advocate Bar Association Vs UOI

The Word plaintiffs Witness has been mentioned by mistake in O VII. In rule
14(4) the word plaintiffs Witness should be read as defendant’s Witness till the
legislature corrects the mistake.

Rule 16: Suits on lost negotiable instruments- This rule talks about a situation when
the suit based upon a negotiable instrument which is not found i.e. has been lost,
and on which an indemnity exists, the court may pass a decree as if the instrument
is produced before the court.

Rule 17: Production of shop book- (1) Save in so far as is otherwise provided by
the Bankers’ Books Evidence Act, 1891 (18 of 1891), where the document on
which the plaintiff sues is an entry in a shop book or other account in his possession
or power, the plaintiff shall produce the book or account at the time of filing the
plaint, together with a copy of the entry on which he relies.

Return and rejection of plaint

Return of plaint: Rules 10, 10-A, 10-B

Rule 10 : Where at any stage of the suit, the court finds that it has no jurisdiction,
either territorial or pecuniary or with regard to the subject-matter of the suit, it will
return the plaint to be presented to the proper court in which the suit ought to
have been filed. However, the court cannot dismiss the suit.

36
Rule 10(2) prescribes the procedure to be followed by a court before the plaint is
ordered to be returned to be presented to the proper court.
The judge returning the plaint should make endorsements on it regarding
(i)the date of presentation;
(ii) the date of return;
(iii) the name of the party presenting it; and
(iv) reasons for returning it.

When the plaint is filed in the proper court, after getting it back from the wrong
court, it cannot be said to be a continuation of the suit and the suit must be deemed
to commence when a plaint is filed in the proper court.
 Order 43 Rule 1(a)The order returning the plaint is appealable.
 Section 14 of the Limitation Act, 1963 The endorsement under Sub-
Rule 2 shall be subject to limitation i.e. if plaintiff prosecutes bona
fide in a wrong court that period shall be excluded from limitation.

Kanwar Orendra Chandra Singh Vs Bulaqui Ram

Where at any stage of the suit, it is found by the Court that it has no jurisdiction
(territorial or pecuniary) with regard to any suit, it is bound under this rule to return
the plaint to be presented to the proper Court in which the suit ought to have been
instituted. The Court can only return the suit, and cannot dismiss It.

Rule 10 A: Power of court to fix a date of appearance in the court where plaint is
to be filed after its return- in the event, the defendant appears, the court is under
the duty to intimate to the plaintiff its decision before returning the plaint. And
when the plaintiff if so intimated,
 he may apply to the court to ask for the proper forum in which the suit must
be filed and also to fix the date of appearance in that court and to give notice
of such date to the defendant.

37
Although the plaintiff is allowed to appeal against the order of return, but in case
the application as mentioned above is filed such appeal is barred

Rule 10 B: Power of appellate court to transfer of suit to the proper Court- In the
event of filing an appeal against the order of return, if the Appellate Court confirms
such order, it may direct the plaintiff to file the plaint in the proper court, subject
to limitation and may also fix a date of appearance before such court (the court to
which it is sent need not issue fresh summons unless required).

In ONGC v. Modern Construction Co. the Supreme Court held that when a plaint
is filed in the proper court after getting returned from the wrong court, it cannot be
said to be said to be a continuation of the suit. The suit must deemed to commence
when the plaint is filed in the proper court.

Rejection of plaint: Rule 11, 12 & 13 :

This provision is mandatory in nature." If any of the grounds specified in clauses
(a) to (e) are made out, court is bound to reject the plaint. The plaint will be rejected
in the following cases:"
a. Non-disclosure of cause of action- If the plaint does not disclose any
cause of action, the court will reject it. The court must come to the
conclusion that even if the allegations set out in the plaint are proved,
the plaintiff would not be entitled to relief.
b. Undervaluation of the relief claimed and failure to correct after
direction.
c. Insufficiency of stamp paper and if it is not corrected within given
time.
d. Suit is barred by any law including law of limitation. But if question of
limitation is connected with the merits of the case, it will be decided
with other issues

38
 e. It is not filed in duplicate. It means that the plaint has to be filed in
duplicate otherwise it will be rejected. Even Order IV Rule 1 clearly
indicates that for institution of suits the plaint has to be filed in
duplicate.
f. Plaintiff fails to present requisite copies of the plaint with summons
as required by Rule 9. It means the plaintiff is under obligation to
present copies of plaint for ach defendants and requisite fees for
summons within 7 days.
It must be noted here that under Rule 11(b) and (c) there is no automatic rejection
of plaint. If the court comes to a conclusion that relief claim is undervalued or
plaint is insufficiently stamped then the court is required to give sufficient time to
the plaintiff to correct the valuation and deposit the requisite court fee. If upon
giving sufficient time the plaintiff fails to correct the same then the power under
these rules is to be exercised.
R K Roja Vs U S Rayudu
The court has to consider only the plaint as a whole and in case, the entire plaint
comes under the situations covered by O VII rules 11(a) to (f) of the code of civil
procedure , the same has to be rejected.

This rejection can be done at any stage before the conclusion of trial, and the
ground on which it should be rejected must be considered by the simple reading
of the plaint only and not on the basis of allegations made by the defendant in his
written statement and not also on the basis of application for rejection.

Rule 12: Procedure on rejecting Plaint- Where a Plaint is rejected the Judge shall
record an order to that effect with the reasons for such order.

Rule 13: Where rejection of plaint does not preclude presentation of fresh plaint-
The rule provides for the consequence or a remedy for the order of rejection,

39
wherein the plaintiff is allowed to institute a fresh plaint in respect of the same cause
of action in the proper court subject to limitation. Therefore, although being a
decree, Res-Judicata does not apply on such orders. Thus the rejection of plaint
being a deemed decree, the plaintiff has two remedies in case of rejection of plaint
which are as follows
a) It is a decree and thus appealable under Order 41.
b) Plaintiff may bring a fresh suit in respect of same cause of action

Institution of suits - Sections. 26,

Order4 - Rule 1 &2

Section 26. Institution of suits. — 1 Every suit shall be instituted by the presentation
of a plaint or in such other manner as may be prescribed. 2. In every plaint, facts
shall be proved by affidavit.

ORDER IV Institution of suits

1. Suit to be commenced by plaint.—(1) Every suit shall be instituted by presenting
plaint in duplicate to the Court] or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far
as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the
requirements specified in sub-rules (1) and (2)
2. Register of suits.—The Court shall cause the particulars of every suit to be entered
in a book to be kept for the purpose and called the register of civil suits. Such
entries shall be numbered in every year according to the order in which the plaints
are admitted.

40
Section 26 and Order IV provides for institution of suits. Section 26 lays down that
every suit shall be instituted by the presentation of a plaint induplicate or in any
other manner prescribed by the Code of Civil Procedure, to the court or such
officer appointed in this behalf and the facts stated therein must be supported by
an affidavit. This section must be read with Order IV, VI & VII of the first schedule.

Order 4 Rule 1 :- Time and place of presentation

A plaint in duplicate must be presented to the court or such officer as it appoints
in that behalf. Generally, the presentation of a plaint must be on a working day and
during the office hours.

Kumar Roy Vs Dr.S.N.Sarma

There is no rule that such presentation must be made either at a particular place
or at a particular time. A judge, may accept a plaint at his residence or at any other
place even after office hours, though he is not bound to accept it. But if not too
inconvenient, the judge must accept the plaint, if it is the last day of limitation.’
Order 4- Rule 2 :- Register of Suit
Thereafter, the particulars of a suit will be entered by the court in a book kept for
the said purpose, called the register of civil suits. After the presentation, the plaint
wall be scrutinized by the Stamp Reporter. If there are defects, the plaintiff or his
advocate will remove them. Thereafter the suit will be numbered.

Summons - Sections. 27, 28, 31 and

Order 5 – Rule 1 -30

Introduction:
After the plaint is filed, the summon is issued by the court to appear in the court to
defend it. The intimation which is sent to the other party (defendant) is called
summons. The provision related to summons are given in

41
Section 27-32
 Section 27:- Summons to defendants.
 Section 28:- Service of summons where defendant resides in another State.
 Section 29 :- Service of foreign summonses.
 Section 31:- Summons to witness.

ORDER V Issue and Service of Summons- Rules 1-30

 Rule 1 -8 :- Issue of summons (Content of Summons)
 Rule 10-16,18 & 21-30:- Service of Summons ( To whom it should be
served)
 Rule 9, 9A,17,19,20 :- Mode of Service of Summons

Summons Meaning :-
Summons is an authoritative call from the court to attend the court at a specified
place and at a specified time. The summons as contemplated in Rule 1 is for the
attendance of the defendant. It says that once a plaint is admitted the court is
required to send the notice of such admission to the defendant and then for the
purpose of his appearance and to answer (reply) the allegations made against him
in the plaint.

Section 27: Summons to Defendants : Section 27 of CPC stipulates that where a

suit has been duly instituted by filing a plaint, the first duty of the court is to issue
summons calling on the defendant to appear and answer the claim and such
summons may be served in a manner prescribed in the rules mentioned in Order
V and on such day not beyond 30 days from the date of the institution of the suit.

Section 28: Service of summons where defendant resides in another state : If the
summons to be served in an another state must be sent for service through the
court of that state and it will so be served according to the rules in force in the state

42
in which it is sent to. The court to which it is sent must serve it as it is issued by that
court and return it to the court issuing it along with the proceedings therein.

Section 29: Service of foreign summonses

Section 29 provides for the situation when any of the following courts:
1. Civil or Revenue court to which Civil Procedure Code does not apply.
2. Civil or Revenue court established by the authority of Central
Government outside India.
3. Civil or Revenue court outside India to which this section would apply.
has issued certain summons and is intended to be served in the territory to which
Civil Procedure Code applies. It provides that it may be sent to the courts to which
Civil Procedure Code applies and may be severed by them as if it was issued by
such courts.

Order 5 Rule 1Summons to defendant :-

When a suit has been duly filed by presentation of a plaint, the court must issue
summons to the defendant calling upon him to appear and answer the claim of the
plaintiff by filing a written statement within thirty days from the date of service of
summons. No summons, however, will be issued by the court if, at the time of
presentation of a plaint, the defendant is present and admits the plaintiff’s claim.

Rule 2 – Copy of plaint annexed to summons (1999):- talks about that when
summon is to be sent then it is necessary to annexed a copy of plaint with it.

Rule 3 - Appearance in person:

A defendant to whom a summons has been issued, may appear

1. in person, or
2. by a pleader duly instructed and able to answer all material questions relating
to the suit; or
3. by a pleader accompanied by some person able to answer all such questions.

43
The court, however, may order the defendant or plaintiff to appear in person.
Sangram Singh Vs Election Tribunal
The supreme court of India has held that there is no penalty of failure or omission
to appear in response to a summon under section 27.

Rule 4: Exemption from appearance in person:- No party to be ordered to appear

in person unless

a) unless he resides within the local limits of the court’s ordinary original
jurisdiction; or
b) outside such limits, but at a place less than
i. 50 miles; or
ii. 200 miles -where public conveyance is available from the courthouse

There are certain provisions where there is an exemption from personal

appearance, such as
1. Section 132, in case of certain women like Pardanashin lady,
2. Section 133, in case of other person like President, Vice-President, etc.

Content of Summons Rules 5-8

Rule 5: Summons to be either to settle issues or for final disposal
The summons may be issued for settlement of issues or for final disposal of the
suit and the court shall at the time of issuing the summons specify for what purpose
summons are being issued and it must contain a direction accordingly. The Court
of Small Causes shall issue summons for final disposal only.
Rule 6: Fixing day for appearance of defendant: The following factors should be
looked into while fixing the date for appearance
1. The current business day of the court,
2. The place of residence of the defendant,
3. Time necessary for service of summons,
4. Sufficient time to enable defendant to prepare his defence.

44
Rule 7: Summons to order defendant to produce documents relied on by him : It
shall be ordered to the defendant in the summons to produce all the document or
copies thereof specified in Order VIII Rule 1 A to produce on which he intends
to rely in his support
Rule 8: On issue of summons for final disposal, defendant to be directed to
produce his witnesses: In the summons for final disposal of the suit the defendant
shall be directed to produce all the witness upon whose evidence he relies for his
defence at the day fixed for appearance.

Service of Summons ( To whom it should be served)

Rule 10-16,18 & 21-30:-

Rule 10: Mode of Service: Service of the summons shall be made by delivering or
tendering a copy thereof signed by the judge or such officer as he appoints in this
behalf, and sealed with the seal of the court.
Rule 11: Service on several defendants- Where there are two or more defendants,
service shall be made on each of them.

Rule 12: Service to be on defendant in person when practicable, or on his agent-

The summons must be served to the defendant in person or to his authorized
agent.

C N Nataraj Vs IT Officer
Service of summon on the chela of a person is not valid. Similarly, Service of the
notice on the servant is no service in law.
Rule 13: Service on agent by whom defendant carries on business- When the suit
relates to any business or work and is against a person not resident within the
jurisdiction of the court issuing summons, such summons may be served upon any
manager or agent who personally carries on such business or work and is within
the local limits of the court.

45
Rule 14: Service on agent in charge in suits for immovable property- In a suit to
obtain a relief with respect to an immovable property or for suit for compensation
over such property, it would be sufficient that the summons is served upon the
agent who is in charge of the property.

Rule 15: Where service may be on an adult member of defendant’s family- In cases
where the summons cannot be served due to absence of defendant for a reasonable
time and the agent also is not available to receive summons, then such service may
be made to an adult member residing with the defendant. It can be served both on
male or female but only on adult member of the family.

Explanation :-In such cases a servant is not considered the family member of the
defendant. Also when adult female members of defendants refused to receive suit
summons, a conclusion can be drawn that summons are served on defendants

Muchirman Chand Vs Paras Nath

Under this rule a duty is cast upon the process- server to take pains to find out the
person to be served and to make enquires not only from relations but also from
neighbor.

Rule 16: Person served to sign acknowledgement- The serving officer shall require
the signature of the person accepting the summons to an acknowledgement of the
service endorsed on the original summons.

Rule 18: Endorsement of time and manner of service- The serving officer in all
cases where the summons has been served under Rule 16, shall endorse or annex
on the original a return stating the time and manner of service and name or address
of the person identifying the person or witnessing the delivery.

Mode of service of summons

46
  1. Service of court - Rule 9
 2.Service by Post - RPAD. Rule 9 (2)
 3. Service by plaintiff (Dasti Summons) - Rule 9A
 4. Substituted Service Rule 17, 19-20
o (i) without the order of the court
o (ii) with the order of the court.

Rule 9: Delivery of summons by Court-

Rule 9(1): -This rule provides for the manner in which the summons must be
served, that if the defendant or his agent is a resident within the jurisdiction of the
court, such summons shall be served either by officer of the court known as process
server or bailiff or by such courier services as are approved by the court.
Rule 9(2): - If the proper officer is from a different court than where the case is
filed, the summons can be sent to them in the way the court directs.
Rule 9(3): - Provides for the manner in which the summons may be served.
The service of summons may be made by delivering or transmitting a copy to
the defendant or his duly authorized agent by:
(a) Registered Post acknowledgement due, or
(b) Speed Post or courier service approved by the High Court or the District
Court, or
(c) Any other means of transmission like fax message or electronic mail
service, etc.
 The service of summons under this sub-rule 3 shall be made on the expenses
of the plaintiff.

Rule 9(4): - If the defendant is residing out of the jurisdiction of the court sending
summons, then such summons shall be served according to sub-rule 3 except by
registered post acknowledgement due and provisions of rule 21 does not apply.

Rule 9(5): - Where the summons if returned back to the court with the
endorsement that the defendant or his agent refused to accept the summons when
47
tendered or transmitted to him, the court shall declare that the summons had been
duly served on the defendant.
 In the following cases the court may declare deemed service of summons-
 When the acknowledgment or any other receipt is signed by the
defendant or his agent
 The refusal or non-acceptance by the defendant or his agent,
 Where the summons was properly addressed, prepared and duly sent
by registered post or acknowledgement due and having been lost or
mislaid and wasn’t received by the court within 30 days from the date
of issue of summons.

Rule 9(6) :The High Court or the District Judge shall prepare the list of courier
services.

P.T Thomas Vs Thomas Job

Where summon is properly addressed, prepaid and duly dent by registered post
acknowledgement due (RPAD) there will be a presumption of valid service of
summon even in the absence of acknowledgement slip

Salem Bar association Vs UOI

The problem in service of summon has been one of major cause of delay. There
thus, be no valid objection to service through courier.

Rule 9A: Summons given to the plaintiff for service on the application of the
plaintiff’s is allowed to served the summons personally to the defendant. Such
summons must be sealed and signed.
Rule 9A(3): - The plaintiff must take the acknowledgement from the defendant and
shall endorse a return by stating the time and manner of service of original
summons as per rule 16 and 18.
Rule 9A(4): - If the summons is
 refused by the person, or

48
  if they won’t sign to confirm they received it, or
 if it can’t be served in person for any reason,
the court, upon request, will issue the summons again and have it served in the
same way as a summons for a defendant.

Substituted Service [Rule 17, 19-20]

Substituted service means the service of summons by a mode which is substituted
for the ordinary mode of service of summons. For ordering substituted service as
per Order 5 Rule 20, CPC it must be shown that the respondent/defendant is
keeping out of the way for the purpose of avoiding service or that for any other
reason, the summons cannot be served in the ordinary way.
There are two modes of substituted service of summons:
 (a) Service without the order of the court
 (b) Service with the order of the court

Rule 17 Service without the order of the court- when substituted service can be
made on the defendant without the order of the court:
i. Refusal of acknowledgement- Where the defendant or his agent refuses to
sign the acknowledgement.
ii. Absence of defendant- Where the serving officer, after due and reasonable
diligence, cannot find the defendant who is absent from his residence at the
time of service of summons and cannot be found within a reasonable time
and
iii. there is no authorized agent nor any other person on whom such service can
be made.

When one of the above two circumstance exist, the service of summons can be
made by affixing a copy on the outer door or some other conspicuous part of the
house in which the defendant ordinarily resides or carries on business or personally

49
works for gain.
Procedure after such service: After affixing such copy of summons as stated above,
the serving officer shall then return the original to the court issuing summons with
a report endorsed thereon stating
(a) The fact about affixing the copy;
(b) The circumstances under which he did so;
(c) The name and address of the person, if any, by whom the house was
identified and in whose presence the copy was affixed.
Rule 19- Examination of Serving officer :- further provides that if the court is
satisfied, either on affidavit or examination on oath of serving officer, that the
summon is duly served, it may either declare the summons has been duly served
or may make such inquiry as it thinks fit. If provisions of Rule 19 are not complied
with, service of summons cannot be said to be in accordance with law. The Court,
may make such further enquiry in the matter as it thinks fit; and shall either declare
that the summons has been duly served or order such service as it thinks fit .

State of J & K Vs Haji Wali Mohammed :-

When the service is summon is made under Rule 17, if the provision of 19 have
not been complied with, the service of summons cannot be said to be in accordance
with law.

Rule 20 - Service with the order of the court- If the court is satisfied that there is
reason to believe that defendant avoids service or for any other reasons, the
summons cannot be served in the ordinary way, in such case, the service may be
affected in the following manner:
i. By affixing a copy of summons in some conspicuous place in the court
house, and in the house in which the defendant is known to have last resided,
carried on business or personally worked for gain, or (ii) In such other
manner as it thinks fit.

50
 ii. The court may order service of summon by advertisement in a daily
newspaper circulating in the locality in which the defendant is last known to
have resided or carried on business or personally worked for gain
iii. Rule 20(2)- Effect of substituted service of summons- provides that the
substituted service is as effective as personal service, and such defendant
shall be deemed to be duly served in accordance with law.
iv. The court shall fix a time for the appearance of defendant and give him
reasonable opportunity to appear before court

CIT v Daulat Ram

The rule 20 of O V confer a discretion on the Court to adopt any manner of
service. The sub-rule prescribes one manner which the Court may follow and this
manner consists of two acts (1) affixing a copy of the summons in the Court house,
and (2) affixing it in some conspicuous part of the residential house or the business
premises of the defendant.

Other Provision Related To Summons: R 21- 30

Rule 21: Service of summons where defendant resides within jurisdiction of
another court- The service of summons outside the jurisdiction of the court
issuing, may be made in any of the aforesaid manner provided under the rule,
to the court other than the High Court in whose jurisdiction defendant resides.
Rule

22: Service within presidency-town of summons issued by courts outside-

Where a summons issued by any court established beyond the limits of town of
Calcutta, Madras and Bombay is to be served within any such limits, it shall be
sent to the Court of Small Causes within whose jurisdiction it is to be served.

51
Rule 23: Duty of Court to which summons is sent- The Court to which a
summons is sent under rule 21 and rule 22 shall, upon receipt thereof, proceed
as if it had been issued by such court and shall return the summons to the court
of issue, together with the record (if any) of its proceedings with regard thereto.

Rule 24: Service on defendant in prison- The service of summons to a person

confined in prison shall be served to the officer in charge of prison for service
on the defendant either by post or by courier service or by any other mode of
communication.

Rule 25: Service where defendant resides out of India and has no agent- if the
suit is instituted against a defendant residing outside India and he has no agent
in India, then the summon shall be sent to the defendant at the place where he
is residing i.e. in any foreign country. The summons may be sent either by post
or by courier service or by fax or by electronic mail service or any other means
provided by the High Court.

Rule 26: Service in foreign country through Political Agent or Court- Where
the defendant is residing in a foreign country; The summons may be sent
through the Ministry of Foreign Affairs of that Foreign Country to such political
agent or court, appointed or established by Central Government or to any court
situated in that country and not established or continued by Central
Government, for being served upon the defendant by post or otherwise.
When such political agent or court returns the summons with an endorsement
to the effect that summons has been served, such endorsement shall be deemed
to be the evidence of the service.

52
Rule 27: Service on civil public officer or on servant of Railway Company or
local authority
The service of summons on the defendant who is a public servant (except
mentioned in rule 28) or the servant of a railway company or local authority
may be served to the head of the office in which he is employed, together with
a copy of it to be retained by the defendant.

Rule 28: Service on soldiers, sailor or airmen- Where the defendant is a soldier,
sailor or airman, the court shall send the summons for service to his
commanding officer together with a copy to be retained by the defendant.

Rule 29: Duty of person to whom summons is delivered or sent for service- (1)
Where a summons is delivered or sent to any person for service under rule 24,
rule 27 or rule 28, such person shall be bound to serve it if possible, and to
return it under his signature, with the written acknowledgement of the
defendant, and such signature shall be deemed to be evidence of service.
(2) Where from any cause service is impossible, the summons shall be returned
to the court with a full statement of such cause and of the steps taken to procure
service, and such statement shall be deemed to be evidence of non-service.

Rule 30: Substitution of letter for summons- This rule provides situation when
serving of summons does not seem to be proper, and in such situation the court
sends a letter to the defendant, who is entitled to this form of calling due to the
rank of such defendant requiring such mark of consideration or respect.
However, this does not mean that all the particulars required in summons will
not be mentioned in such letter as it will be treated in all respects, as a summons.
This letter may be sent by post or by special messenger.

53
 Written Statement , Set off- Counter claim
Order 8 – Rule 1 -10

Introduction :-
Order VIII Rule 1- 10 deals with rules relating to written statement. However, it
means the pleadings of the defendant wherein defendant deals with the facts alleged
in the plaint. In it, he also pleads new facts and set up counter claim and set-off. All
the general rules of pleading mentioned in Order VI apply to written statement.
 Rule 1 -5 and 7-10 : Deals with the particulars of Written statement
 Rule 6 :- Set-off
 Rule 6A to 6G :- Counter Claim

Who may file written statement :- Written statement is filed by the defendant or
his duly authorized agent. If there are several defendants a common written
statement can be filed by them. In such case it must be signed by all of them. As
far as verification is concerned, it can be verified by any one defendant.

Order VIII Rule 1 – written statement : -Time limit for filing written statement:
 It is provides that the defendant shall within 30 days from date of service of
summons file a written statement.
 Proviso to Order VIII Rule 1states that if the defendant fails to file written
statement within a period of 30 days from date of service of summons. He
shall be allowed to file the same on such other day, but shall not be late than
90 days- from the service of summon .

Salem Advocate Bar Association v. Union of India, the court said that there can
be discretion of the court to allow the defendant to file written statement even
after expiry of 90 days and there is no restriction in Order VIII that after expiry
of 90 days, further time cannot be extended or granted. In this case, the

54
Supreme Court held that court is empowered under Order VIII Rule 10 to
allow the defendant to file the written statement even after the expiry of 90 days.
Such power can only be used in exceptional circumstances and routine order
cannot be passed.
Rani Kusum Vs Kanchan Devi
Amendment made to Order VIII rule 1 does not completely take away power
of Court to extend time for filing written statement beyond time specified in rule
1 of O VIII. However, departure therefrom would be by way of exception.

Sandeep Thapar Vs SME Technologies Pvt. Ltd :- Filing of written statement—

extension of time.—The time limit under O VIII rule 1, has to be observed but
in exceptional circumstances in order to ensure that injustice is not done, the
time can be extended. When the delay is occasioned by reasons beyond the
control of defendant, then court ought to permit the party to file written
statement beyond the period prescribed in O VIII, rule 1 of the Code.

Rule 1A: Duty of defendant to produce documents upon which relief is claimed
or relied upon by him
Along with the written statement the defendant must produce the documents
upon which he relies for his defence, if the documents are in his power or
possession, and must exhibit it in the file by providing the list of such documents
specifically.

Rule 1A(3) :- If the defendants fails to exhibits such documents along with a
written statement, he will be restrained from producing it as an evidence in his
defence unless the court permits.
Rule 1A(4) This rule does not apply to documents produced and handed for:
i. Cross examination of plaintiff’s witnesses, or
ii. ii. Refreshing the memory of witnesses, respectively.

55
Prashant Kumar Goyal Vs Sogra Khatoon
The defendant can produce the document at the time of hearing of the suit with
the leave of the court. Rejection of application to produce document because the
application is moved belatedly is improper.
Rule 2: New facts must be specifically pleaded- It is a general rule of pleadings that
all material facts must be pleaded in pleadings. The defendant must state:
a) All matters which show that the suit is not maintainable, or
b) The transaction is either void or voidable in point of law, or
c) The facts showing illegality and other grounds of defence
d) Would raise issues of facts not mentioned in plaint like, fraud, limitation,
release, payment, performance.

Udhav singh Vs Madhav Rao Scindia :

If the plea is not taken, it may lead the plaintiff to believe that the defendant has
waived his right by not relying on that point. And the defendant will not be entitled,
as of right, to rely on any ground of defence which he has not taken in his written
statement.

Rule governing denial and deemed admissions Rule 3 to 5

Rule 3: Denial to be specific- The defendant must deny the truth of each allegation
of fact specifically of which he does not except damages. Denial generally will not
be sufficient. Therefore, it is not contemplated in the draft of a written statement
that the defendant states generally that he denies all the allegations in the plaint,
but does so specifically pointing each and every paragraph.

Badat & Co Vs East India Trading Co.

A defendant can either admit or deny the several allegations made in the plaint, If
he decides to deny any such allegations he must do so clearly and explicitly. This
rule lays down that a general denial of the grounds alleged in the plaint shall not
be sufficient.

56
Rule 4: Evasive denial- The defendant must deny an allegation by answering the
point of substance and explaining the whole of the circumstances in which the
transaction took place. Therefore the defendant must not just answer to evade the
effect of the paragraph mentioned in the plaint but must give the answer in a way
that why the statement would never affect him by telling the circumstances that
stood around the fact in the plaint.
Eg :- Thus, if it is alleged that he received a certain sum of money, it shall not be
sufficient to deny that he received that particular amount, but he must deny that
he received that sum or any part thereof, or else set out how much he received.

Rule 5: Specific denial- Rule 5 (1)provides for situation when the law presumes
that an admission has been made i.e. when any fact in the plaint is deemed to be
admitted. The situations are:
(i) Fact not denied specifically or by necessary implication, or
(ii) Fact is stated not to be admitted in the written statement.

In other words, every allegation of fact in the plaint, not denied by the defendant
shall be taken to be admitted by the defendant.
However this Rule does not apply in the case of a person under disability.

PP Abubacker Vs The UOI

A plea that the defendant does not admit any of the allegations in the plaint except
such as have been expressly admitted and that he puts the plaintiff 4, the proof of
allegations not admitted is not a sufficient denial within the meaning of this rule:
Thus, every allegation so denied will be deemed to have bee, admitted.

Rule 5 (2) Ex-parte :- This rule further provides that, where the defendant does
not file a written statement, the court may go on to pronounce a judgement based
on the facts in the plaint without obtaining proof of such facts or may call for proof

57
of it. However, the court may in its discretion require any fact to be proved except
by admission reason being you cannot admit or denied at the same time.

Section 58 of Indian Evidence Act, 1872. - the fact admitted need not be proved.
Among other things, it provides that if the facts are admitted by any rule of
pleadings in force then they are deemed to be admitted. However, its proviso says
that court may in its discretion required the fact admitted to be proved otherwise.
Thereby if the defendant does not plead, the court shall pronounce judgement on
the basis of plaint, but the court may in its discretion require any fact to be proved.
This sub rule not applies to person under disability.

Rule 5 (3): Court is exercising his jurisdiction under Proviso to Sub-Rule 1 & Sub-
Rule 2 shall have due regard whether the defendant could have engage a pleader
or not.

Rule 5(4): Judgement is pronounced under this rule, the decree shall be drawn up
in accordance with judgement and decree shall bear the date on which judgement
is pronounced.

In Balraj Taneja v. Sunil Madan, the Supreme Court held that courts should act
cautiously on the admission made in written statement. The courts should not
proceed to pass judgement merely because written statement has not been filed.
Courts should see that if the plaint contains certain disputed questions of facts
which depicts two different versions the court should require the plaintiff to prove
the case.

Rule 7- Defence or set-off founded upon separate grounds: - The distinct grounds
of defence or set-off or counter-claim must be stated separately or distinctly

58
Rule 8- New ground of defence: Any new ground arose after the institution of the
suit or the presentation of set-off or counter claim is a written statement, may be
raised subsequently by the parties concerned.

Rule 9- Subsequent Pleading: - The general rule is that after pleading there is no
subsequent pleader but Order VIII Rule 9 says that any submission by the parties
to the court, by way of or in the nature of a pleading after plaint and written
statement will be called as a subsequent pleading. It is presented as follows:
(i) By way of set-off or counter-claim, only with the leave of the court, or
(ii) By way of an additional written statement.

However, the court has the power to allow a written statement or additional written
statement any time from any of the parties and the time period fix for it is 30 days
Ramesh Kumar Vs Chandu lal
Where defendants bring new facts in the written statement, the plaintiff must be
afforded an opportunity to controvert the allegations/ averments incorporated in
the written statement.

P Saraswathi Vs C Subramaniam
The rigid principal applicable in the case of amendment of plaint under order VI
rule 17 of the code of civil procedure cannot be applied in the case of receiving
additional written statement. Additional Written statement can be allowed to be
filed even after commencement of trial.

Rule 10 Procedure when party fails to present written statement called for by court:
Where the party fails to file written statement within the period fixed by the court
under Rule 1 and Rule 9, the court shall pronounce judgement against him or make
such order as it thinks fit and a decree shall be drawn accordingly.

In Salem Advocate Bar Association v. Union of India, it was held that the
provisions of rule 10 are discretionary and not mandatory.

59
 SET-OFF [RULE 6]
"Set-off" means a claim set up against another. It is a cross-claim which partly offsets
the original claim. It is an extinction of debts of which two persons are reciprocally
debtors to one another by the credits of which they are reciprocally creditors to one
another. Where there are mutual debts between the plaintiff and the defendant,
one debt may be settled against the other. It is a plea in defence, available to the
defendant. By adjustment, set-off either wipes out or reduces the plaintiff's claim in
a suit for recovery of money.

Conditions
A defendant may claim a set-off, if the following conditions are satisfied:
(i) The suit must be for the recovery of money;
(ii) The sum of money must be ascertained;
(iii) Such sum must be legally recoverable;
(iv) It must be recoverable by the defendant or by all the
defendants, if more than one;
(v) It must be recoverable by the defendant from the plaintiff or
from all the plaintiffs, if more than one;
(vi) It must not exceed the pecuniary jurisdiction of the court in
which the suit is brought;
(vii) Both the parties must fill, in the defendant's claim to set-off, the
same character as they fill in the plaintiff's suit.

EFFECTS OF SET-OFF
 When a defendant pleads set-off, he is put in position of plaintiff as regards
the amount claimed by him. So, there are two cross-suits which are tried
together and the court pronounces judgement in respect of both of them.
The failure of plaintiff in the suit does not affect the claim of a set-off by the

60
 defendant and decree may be passed in favour of defendant if he is able to
prove his claim.
 A separate suit number, however, is not given in a set-off.
 Where the plaintiff does not appear and his suit is dismissed for default, or
he withdraws his suit or he fails to substantiate his claim at the trail and his
suit is dismissed, it does not affect the claim for a set-off by the defendant
and a decree may be passed in favour of the defendant if he is able to prove
his claim.
 Thus, it is clear that this claim has the same effect as of the plaint in a cross-
suit to enable the court to pronounce the judgement in both suits and the
rule regarding the written statement shall apply to a written statement filed
by plaintiff in answer to claim of defendant.
 It must be remembered that:
o Rule 6 is not exhaustive and only contains legal set-off.
o Legal set-off can be claimed as a matter of right.
o The court fee is payable on claim of set-off.
o The particulars by way of set-off may be presented after the first
hearing only with the permission of the court.

Types
The law recognises two types of set-off.
(i) Legal set-off; and
(ii) Equitable set-off.
1. Legal Set-off: (Order VIII Rule 6)- This claim of set-off is based on written
statement and the court pronouncing the judgement in money suit will also
pronounce judgement on set-off.
2. Equitable set-off: [Order XX Rule 19(3)]- In contrast to legal set-off, equitable
set-off may not be for ascertained money and may not be even recoverable. For
e.g. in a suit by servant against his master for salary, the latter can claim set-off for
the loss sustained by him due to negligence of servant.
61
Mohinder Singh Jaggi v Data Ram Jagannath
In a suit for recovery of certain amount on the basis of khata, the defendant by his
additional written statement put forward a counter claim. It was for accounting
arising out of transactions between him and the plaintiffs on the basis of an
agreement. The written statement could be treated as a cross claim.

SBI v National Housing Bank,

Decree in favour of defendant is permissible of defendant either when the
defendant pleads set-off or makes a counter claim as per the provisions of O VIII.

COUNTER CLAIM [O VIII Rule 6A TO 6G]

Rules 6A-6G of Order VIII vide Amendment Act of 1976, which specifically
provides for setting of counter claim. It can be defined as a claim made by the
defendant against the plaintiff in the suit filed by plaintiff. It is a cause of action in
favour of defendants against the plaintiff. It is independent and separate from
plaintiff’s claim. The defendant may in addition to set-off, can also be plead by way
of a counter-claim.

Rule 6A
 Such right or claim must accrue either before or after the filing of the suit
but before filing of written statement or expiry of time limited to file written
statement.
 The counter-claim must not exceed the pecuniary jurisdiction of the court.
[Order VIII Rule 6A. (1) Proviso]
 The counter- claim shall have the same effect as a cross-suit to enable the
court to pronounce the judgement in both suits [Rule 6A (2)].
 The plaintiff shall file the written statement to answer the claim in counter-
claim against him [Rule 6A (3)].

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  The counter-claim is in the nature of cross-suit so it should satisfy all the
criteria of a suit and rules as to the plaint that he shall apply mutatis mutandis
to it.
 The counter claim is treated as separate suit so it is deemed to be instituted
on the day on which it was filed and not on the day when original suit was
filed, so it must be filed within limitation period.
 The Court-fee is payable on counter-claim

South Konkan Distilleries v Prabhakar Gajanan Naik

In a suit for dissolution of firm counterclaim was limited to damages caused to the
defendant till filing of written statement. After 13 years amendment of written
statement and enhancement of counter-claim were sought. The court held that the
claim was barred by limitation.

Vijay Prakash Jarath Vs Tej Prakash Jarath

Cause of action in respect of which counter claim can be filed, should accrue before
defendant has delivered his defense, namely before defendant has filed his written
statement.

[Rule 6B] Counter claim to be stated: - The defendant shall state, specifically in
written statement, any ground upon which he relies in support of his counter-claim.

Rule 6C]- Exclusion of counter claim: [This rule gives the plaintiff a right to apply
to the court to restrain the adjudication of the counter-claim in his suit and that it
must be raised in an independent suit.

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[Rule 6D] Effect of discontinuance of suit: - The stay or dismissal of the plaintiff’s
suit does not affect the maintainability of counter claim. The counter claim shall be
proceeded with and since it is a cross suit it will be decided on its own merits.

Daga Films Vs Lotus Production

The effect of counter claim is that even if the suit of plaintiff is stayed, discontinued,
dismissed or withdrawn, the counter claim will be decided on merits.

Rule 6E- Default of plaintiff to reply to counter-claim: Where the Plaintiff fails to
reply to a counter-claim made by defendant, a judgement may be pronounced
against such plaintiff in relation to the counter-claim or any other order also be
made.

Rule 6F- Relief to defendant where counter-claim succeeds: Where the counter-
claim or set-off is claimed in any suit and on the hearing it is found that any balance
is due to the plaintiff or the defendant, the court may give judgement in the favour
of the party entitled to such balance.

Rule 6G- Rules relating to written statement to apply: The rules relating to written
statement by a defendant shall apply to a written statement filed in answer to a
counter-claim.

Section 3(2)(b) of Limitation Act, 1963 stipulates that any claim by way of a set-off
or a counter-claim shall be treated as a separate suit and shall be deemed to have
been instituted
1. in the case of a set-off, on the same date as the suit in which the set-off is
pleaded.
2. in the case of a counter-claim, the date on which the counter-claim is
made in the court

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Difference between Set-off & Counter-claim
Set-off Counter-claim
It is a statutory defense to a plaintiff’s It is substantially a cross action.
action.
It must be for an ascertained sum of A counter-claim need not be for
money or, if equitable set-off, arise out ascertained sum of money neither it
of same transaction. should arise out of same transaction.
It is a ground of defense to be plaintiff’s It is a weapon of offence, a sword
action, a shield which would afford an enabling a defendant to enforce a claim
answer to plaintiff’s claim in whole or against the plaintiff.
in part.
In legal set-off the amount must be The amount must be recoverable at the
recoverable at the date of the suit. date of the written statement or the
cause of action must have arose before
the filing of written statement.

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 UNIT – II

10 Marks
Institution of suit
1. Describe the provisions relating to institution of suit.
2. What are the rules regarding institution of suits ? Explain.

Pleading
3. Explain the fundamental rules of pleadings. when the amendment of
pleadings is permissible+1 +1+1
4. Explain the general and other rules of pleading.
5. Explain the general rules of pleading

Plaint & Written Statement

6. Briefly explain the different parts of a plaint.+1+1
7. What are the necessary elements of the plaint ? When can it be rejected ?
Explain
8. what is written statement ? when can set-off and counter claim be pleaded ?
9. Elucidate the essential contents of written statement+1

Summons
10. State the modes of service of Summons.
11. Explain the different modes of service of summons.
12. Explain the essential ingredients of summons. What are the different modes
of service of summons to defendant ?
13. Explain the different modes of service of Summons.+1

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Jointer of Parties
14. state the provisions of CPC relating to joinder of parties. What is the effect
of non-joinder of necessary parties ?
15. Explain the provisions of CPC relating to the parties to the suit, their joinder,
misjoinder and non-joinder.

16. Who may be joined as plaintiff's and defendants ? what is the effect of
misjoinder and non-joinder of parties ?
17. Who are the parties to a suit ? Discuss joinder of parties and effect of non-
joinder.

Others
18. Explain the rules of CPC relating to award of interest in civil suits.
19. What are "Costs" ? Explain the different types of costs awarded in civil cases.
20. "Every suit shall include the whole claim in respect of the cause of action".
Comment with illustration

Short notes
1. Rejection of plaint.
2. Write a note on "verification of pleadings".
3. Counter claim. +1 +1
4. Written statement.+1
5. Summons
6. Set-off
7. Set off and counter-claim
8. Misjoinder of parties.
9. Joinder of parties.+1+1
10. Distinguish between misjoinder and non-joinder of parties.
11. Ramesh has instituted a suit against Santosh, seeking possession of a house
on the ground that he has purchased the same from Santosh. Now he wants

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 to amend the plaint to the effect that he is entitled to the possession of the
house as a tenant. Can he succeed
12. Anil has instituted a suit against Suresh for the recovery of a loan alleged to
be advanced by him to Suresh. Suresh has appeared in the suit, but has not
presented his written statement. Anil contends that not presenting written
statement amounts to implied admission of all facts in the plaint. Decide.
13. Ramesh has instituted a suit against Keshav for recovery of loan. While
instituting the suit he claimed only the principal amount, omitting the interest
by over sight. Now he wants to claim the interest. Advise him.
14. In a suit the defendant refused to accept the summons which was issued to
him. The process server left the summons on a table in the defendant's
house. Is the service valid ?
15. Rama filed a suit against Krishna for declaration of ownership on the
property stating that he has purchases under a registered sale deed.
Subsequently he seeks to amend the plaint claiming that the property was
granted to him by the government. Can he succeed ? Discuss.
16. 'A' enters into an agreement jointly with B and C to sell 100 tins of oil. A
thereafter refuses to deliver the goods. 'B' and 'C' together want to file a suit
for damages against 'A'. can they do so ? Advise them.
17. 'A files suit against 'B' to recover money on a pro-note . 'B' contends that the
said pro-note was obtained from him by undue influence. can 'B' succeed in
his contention. Decide.

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