Pleadings — General Principles (Order VI)

Order VI of the Code of Civil Procedure, 1908 lays down the rules that govern every plaint and every written statement that comes before a civil court. The Order has eighteen Rules, but its skeleton is simple. Rule 1 defines a pleading. Rule 2 confines pleadings to material facts. Rule 4 commands that fraud, misrepresentation, breach of trust, undue influence and wilful default be pleaded with particulars. Rules 14 and 15 prescribe the manner of signing and verification. Rule 16 lets the court strike out a pleading that is scandalous, frivolous or vexatious. Rule 17 governs the amendment of pleadings — the most heavily-tested rule in the Order. Read together, the rules of pleading set the gateway through which every dispute must pass before it becomes a justiciable issue (Salem Advocate Bar Association v Union of India (II), (2005) 6 SCC 344).

The chapter that follows works out the architecture of Order VI in turn. The companion provisions appear in the chapters on the plaint under Order VII and on the written statement under Order VIII; the rules governing how the matter is then settled into issues are taken up in the chapter on the settlement of issues under Order XIV.

Rule 1 — what a pleading is

Rule 1 says, simply, that "pleading" shall mean a plaint or written statement. The plaintiff's pleading is the plaint; the defendant's pleading is the written statement. Both must conform to the rules in Order VI. Pleadings include statements of parties or counsel recorded for clarification before the framing of issues (Ganga Ram (M/s) v Gyan Singh & Co, AIR 1960), but they do not include a document that is merely referred to in the plaint or attached to it. The architecture of res judicata developed in the chapter on res sub judice and res judicata under Sections 10 and 11 presupposes this strict definition: only what is alleged in the pleadings can be the matter directly and substantially in issue.

Rule 2 — material facts only, not the evidence

Rule 2(1) is the constitutional rule of pleading. Every pleading shall contain, and contain only, a statement in concise form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which they are to be proved. Sub-rule (2) requires the pleading to be divided into paragraphs, numbered consecutively, with each allegation contained, as far as possible, in a separate paragraph; sub-rule (3) directs that dates, sums and numbers be expressed in figures as well as in words.

Material facts and the facta probanda — facta probantia distinction

The doctrinal distinction is between the facta probanda — the material facts that constitute the cause of action or defence — and the facta probantia — the evidence by which those material facts are proved. Only facta probanda are to be pleaded; facta probantia are matters of evidence to be led at trial. In a suit on a life-insurance policy where the defence is that the insured committed suicide, the company should plead simply that the insured died by his own hand; it is wrong to plead the surrounding evidentiary facts — that he had been melancholy for weeks, that he bought a pistol, that he shot himself with it (Borrodaile v Hunter, (1846)). Those are facta probantia. The discipline runs throughout: admissions made by the opponent, being only evidence, should not be pleaded (Davy v Garrett, (1873)).

Material facts versus particulars

Material facts must be distinguished from particulars. Material facts are the primary and basic facts that must be pleaded; in their absence, evidence cannot be led at trial. Particulars are the details that amplify, refine and embellish the material facts, so that the opposite party knows the case he has to meet (Brijendra Nath v Mayank Srivastava, AIR 1994). Whether a particular fact is material depends on the facts and circumstances of the case (L R Shivaramagowda v T M Chandrashekhar, AIR 1999). What every pleader is bound to do is to set out enough material facts to disclose a cause of action or a defence; that minimum is jurisdictional, since a plaint that does not disclose a cause of action is liable to be rejected under Order VII Rule 11(a) — taken up in the chapter on plaint drafting and rejection.

Consequences of failing to plead material facts

If a party omits to plead a material fact, he will not be allowed to lead evidence of that fact at trial unless the court grants leave to amend under Rule 17 (A Gangedhara Rao v G Gangarao, AIR 1968). Where a material fact is not pleaded, no issue can be framed on it; in CESC Ltd v Rup Kumar Barik, AIR 2003, the Supreme Court held that a plea that part of the claimant's land had become useless, never alleged in the pleading, could not be entertained at the appellate stage. Failure to plead material facts will normally lead to the dismissal of the suit (Ramachandra v Janakiraman, AIR 1999).

Rule 3 — Forms in the First Schedule

The forms in Appendix A to the First Schedule, when applicable to the case, with such alterations as the circumstances require, shall be used. The forms are guides; they are neither exhaustive nor mandatory in every detail, but they are intended to discipline the pleader by example.

Rule 4 — particulars in cases of fraud, misrepresentation, undue influence and wilful default

Rule 4 is the special-pleading rule: in all cases in which a party pleads misrepresentation, fraud, breach of trust, wilful default or undue influence, particulars (with dates and items if necessary) shall be stated in the pleading. The rule is the procedural tail of the substantive doctrine that fraud must be specifically pleaded and proved (Bishundeo Narain v Seogini Rai, AIR 1951). A bald allegation of fraud, without particulars of the fraudulent acts, the persons concerned, the dates on which the acts were done and the manner in which they were committed, will not satisfy Rule 4 and will be liable to be struck out under Rule 16. The discipline ties back to the chapter on foreign judgments under Sections 13 and 14, where the conclusiveness of a foreign decree may be displaced under Section 13(e) on the ground of fraud — a ground that, by Rule 4, must be pleaded with particulars.

Rule 6 — pleading conditions precedent

Any condition precedent to the maintenance of a suit or defence that has been performed shall be pleaded. The non-performance of a condition precedent is implied; the party relying on its non-performance need not specifically plead it. The classic illustration is the Section 80 notice in suits against the Government — once the plaintiff pleads that the notice was given, the Government is taken to have denied performance unless it expressly admits the notice in its written statement.

Rule 7 — departure

No pleading shall, except by way of amendment under Rule 17, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. The rule prevents a party from shifting his case mid-trial. The remedy, where a new ground or inconsistent fact must be raised, is amendment.

Rule 8 — denial of contract

Where a contract is alleged in any pleading, a bare denial of the same by the opposite party is to be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the contract may be implied; it is not to be construed as a denial of the legality or sufficiency in law of the contract. The legality must be specifically pleaded.

Rules 14 and 15 — signing and verification

Every pleading shall be signed by the party and his pleader, if any. Where the party, by reason of absence or for any other good cause, is unable to sign, the pleading may be signed by any person duly authorised by him to sign it or to sue or defend on his behalf (Rule 14). Rule 15 requires every pleading to be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts. The verification shall specify, by reference to the numbered paragraphs of the pleading, what the deponent verifies of his own knowledge and what he verifies on information believed to be true. The verification shall be signed by the person making it and shall state the date and the place at which it was signed. Sub-rule (4), inserted by the 1999 Amendment, requires the pleading to be supported by an affidavit. The discipline ensures that the pleader stands behind every assertion and that the opposite party can identify, paragraph by paragraph, which assertions are made on personal knowledge and which on information. The signing requirement also feeds into the chapter on the affidavits under Order XIX, where the verification regime that pleadings must satisfy under Rule 15 is part of the wider rule on how facts are deposed to in the civil-court record.

Rule 16 — striking out pleadings

The court may at any stage of the proceedings order to be struck out or amended any matter in any pleading (a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or (c) which is otherwise an abuse of the process of the court. The rule is the corollary of the discipline imposed by Rule 2 — pleadings that are vague, scandalous or evidentiary in character may be excised so that the suit proceeds on a clean record. The Supreme Court in Iqbal v Hakimuddin, AIR 1995, set the test for relevance: the question is whether the allegation, if proved, would have a bearing on a relief sought. In election petitions, where the rules on material facts are particularly strict, the court has used Rule 16 to strike out paragraphs that did not disclose a cause of action under Section 100 of the Representation of the People Act, 1951 (Jitu Patnaik v Sanatan Mohakud, (2012)). The corresponding power to reject a plaint outright when it discloses no cause of action sits in Order VII Rule 11(a), which is the more drastic form of the same instinct.

Rule 17 — amendment of pleadings

Rule 17 is the most heavily-tested provision in Order VI. It permits the court, at any stage of the proceedings, to allow either party to alter or amend his pleadings in such manner and on such terms as may be just; and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The proviso, inserted by the 2002 Amendment, restricts amendment after the trial has commenced unless the court comes to the conclusion that, in spite of due diligence, the party could not have raised the matter before the commencement of trial.

Two limbs of Rule 17

The rule operates in two limbs. The first limb is the discretionary limb — the court may allow amendment in such manner and on such terms as may be just. The second limb is the mandatory limb — all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy. The Supreme Court in Ganesh Trading Co v Moji Ram, AIR 1978 SC 484, set the basic principle: amendment of pleadings is to be allowed liberally so that the real question between the parties may be determined; refusal to allow amendment can occasion injustice. The principles were re-stated and consolidated in Revajeetu Builders & Developers v Narayanaswamy & Sons, (2009) 10 SCC 84, where the Court framed seven factors that govern the exercise of discretion under Rule 17.

The Revajeetu factors

1. Whether the amendment sought is imperative for proper and effective adjudication of the case;
2. Whether the application for amendment is bona fide or mala fide;
3. Whether the amendment will cause prejudice to the other side that cannot be compensated by costs;
4. Whether the amendment fundamentally changes the nature and character of the case;
5. Whether the amendment will be inconsistent with the original pleadings;
6. Whether the application has been brought without delay;
7. Whether refusal of the amendment will cause greater injustice than its allowance.

Two boundary lines are firm. First, the court will not allow an amendment that introduces a wholly new and inconsistent case or works as a withdrawal of an admission, although the Supreme Court has clarified in later cases that even a withdrawal of admission may be permitted where the party shows that the admission was inadvertent (Heeralal v Kalyan Mal, (1998) 1 SCC 278). Second, the court will not allow an amendment whose effect would be to substitute a new cause of action that is barred by limitation at the date of the amendment application — to do so would deprive the defendant of an accrued right (Pirgonda Hongonda Patil v Kalgonda Shidgonda Patil, AIR 1957 SC 363). The proviso to Rule 17 reinforces the second line by closing off post-trial amendments unless the party can show due diligence. The discipline aligns with the discipline of the chapter on limitation interfaces in CPC, where the question of when a fresh cause of action is taken to have been instituted goes to the heart of the limitation analysis.

Rule 18 — failure to amend

If a party who has obtained an order to amend does not within the time limited for the amendment, or if no time is limited then within fourteen days from the date of the order, amend accordingly, he shall not be permitted to amend after the expiry of such period unless the time is extended by the court. The rule disciplines the party who has secured an order in his favour to actually carry the amendment through.

Rule 5, 9 to 13 — supplementary rules

Rule 5 lets the court order further and better statements of the nature of the claim or defence, or further and better particulars of any matter stated in the pleading. Rule 9 directs that documents need not be set out at length; the effect of the document is enough, unless the precise words are themselves material. Rule 10 directs that malice, fraudulent intention, knowledge or other condition of the mind be alleged as a fact, without setting out the circumstances from which the condition is to be inferred. Rule 11 directs that notice be alleged as a fact. Rule 12 says that an implied contract may be alleged as a fact, the facts from which the contract is implied being matters of evidence. Rule 13 says that a presumption of law may be alleged as a fact, and need not be stated as a matter of law. Together, these rules close out the gaps the bigger rules leave open.

Pleadings and the writ procedure — the Bharat Singh distinction

The Supreme Court in Bharat Singh v State of Haryana, (1988) 4 SCC 534, drew a sharp distinction between pleadings under the Code and pleadings in a writ petition or counter-affidavit. In a pleading under the Code, only material facts and not the evidence in proof of them is to be pleaded. In a writ petition or counter-affidavit, both the material facts and the evidence — the affidavits, the documents and the supporting material — must be set out and annexed to the petition. The reason is that the writ proceeding is decided on the affidavits without a regular trial, while the suit progresses through framing of issues and recording of evidence. The chapter on issue and service of summons under Order V picks up the next procedural step after the pleadings are filed.

Pleadings and the doctrine of construction

Pleadings are not statutes, and they are not to be construed with the technical strictness that statutes attract. The Supreme Court in Ram Sarup Gupta v Bishun Narain Inter College, (1987) 2 SCC 555 held that the rule of pleading is to be liberally construed in the interest of justice; the controversy between the parties is to be decided on the substance of the pleading, not on its form. A plaintiff who has set out the substance of his case, even imperfectly, will not be turned out merely because his pleading lacks a particular formal averment that, if pleaded, would not have changed the substance.

The same logic explains the rule that a court may, where the substance of a case is made out, mould the relief to suit the cause as proved at trial — Order VII Rule 7 (relief to be specifically stated) lets the court grant such other and further relief as the court may deem proper. The discipline that runs through Order VI is therefore not a discipline of form for its own sake; it is a discipline of substance — the pleading must put the opposite party on notice of the case to meet, must enable the court to frame issues, and must enable an appellate court, on a reading of the record, to know what was tried and decided. Pleadings that fall short of that test are liable to be struck out under Rule 16; pleadings that meet it are protected from technical attack.

Pleadings and the discipline of admissions

An admission in a pleading is the strongest piece of evidence against the party who makes it. Order XII Rule 6 lets the court, on the application of any party or of its own motion, give such judgment in regard to a claim or part of a claim as is justified by the admissions in the pleadings. The connection runs back to Rule 17 — the court will not lightly permit a withdrawal of an admission, though it may do so where the admission is shown to have been inadvertent. The chapter on admissions under Order XII develops the procedural doctrine in full; for purposes of Order VI, the rule is simply that what is pleaded as an admission cannot easily be unpleaded.

The MCQ angle

Three propositions surface again and again. First, every pleading must contain only material facts and not the evidence; the distinction between facta probanda and facta probantia is the spine of Order VI. Second, the court has a wide discretion under Rule 17 to permit amendment of pleadings to determine the real question in controversy; the discretion is structured by the seven factors in Revajeetu Builders, but is restricted post-2002 by the proviso requiring due diligence. Third, allegations of fraud, misrepresentation, breach of trust, wilful default or undue influence must be pleaded with particulars under Rule 4 — a bald allegation will not suffice and will be liable to be struck out under Rule 16. A reader of the Code of Civil Procedure who has internalised these three propositions has the framework into which every later question on plaint drafting and on the framing of issues will fit. The chapter on the parties to suit under Order I takes up the connected discipline that Order VI presupposes — that the right plaintiffs and defendants must be on the record before any pleading can do its work.

Frequently asked questions

What is the difference between material facts and evidence in a pleading?

Material facts (facta probanda) are the primary, basic facts that constitute the cause of action or defence; they must be pleaded under Order VI Rule 2(1) and form the basis on which issues are framed. Evidence (facta probantia) is the proof by which those material facts are established at trial; it is to be led at the hearing, not pleaded. The distinction is that the pleading announces what must be proved; the evidence does the proving. Where a party pleads evidence instead of material facts, the pleading is liable to be struck out under Rule 16; where a party pleads only material facts, he leaves himself free to lead any admissible evidence at trial (Borrodaile v Hunter, (1846); Davy v Garrett, (1873)).

When can a pleading be amended under Order VI Rule 17?

Rule 17 permits amendment at any stage in such manner and on such terms as may be just; and all such amendments shall be made as may be necessary for determining the real questions in controversy. The Supreme Court in Revajeetu Builders v Narayanaswamy, (2009) 10 SCC 84 set out seven factors: necessity, bona fide, prejudice, fundamental change in case, inconsistency with original pleadings, delay, and the comparative injustice of allowance versus refusal. The 2002 proviso restricts amendment after trial has commenced unless the court is satisfied that the party could not, with due diligence, have raised the matter earlier. An amendment that introduces a wholly new cause barred by limitation or substitutes a new and inconsistent case will ordinarily be refused.

What must be pleaded with particulars under Order VI Rule 4?

Rule 4 requires particulars to be pleaded in cases of misrepresentation, fraud, breach of trust, wilful default or undue influence. Particulars include dates and items where necessary, the persons concerned, the manner in which the act was done, and the circumstances that constitute the fraud or undue influence. A bald allegation of fraud, without particulars, will not satisfy Rule 4 and is liable to be struck out under Rule 16 (Bishundeo Narain v Seogini Rai, AIR 1951). The rule is the procedural tail of the substantive principle that fraud must be specifically alleged and proved with full particulars; vague averments do not put the opposite party on notice of the case to meet.

Are pleadings under the Code different from pleadings in a writ petition?

Yes. The Supreme Court in Bharat Singh v State of Haryana, (1988) 4 SCC 534 drew the distinction. In a pleading under the Code, only material facts and not the evidence in proof of them is to be pleaded; the suit progresses through framing of issues, leading of evidence and trial. In a writ petition or counter-affidavit, both the material facts and the evidence — affidavits, documents, supporting material — must be set out and annexed to the petition. The writ proceeding is decided on the affidavits without a regular trial, so the petitioner's record must be self-sufficient at the threshold.

Can a court strike out a pleading on its own motion?

Yes. Rule 16 of Order VI empowers the court at any stage of the proceedings to strike out or amend any matter in any pleading that is unnecessary, scandalous, frivolous or vexatious, or that may tend to prejudice, embarrass or delay the fair trial of the suit, or that is otherwise an abuse of the process of the court. The power may be exercised on the motion of a party or by the court suo motu. The test is whether the controversial allegation, if proved, would have a bearing on the relief sought (Iqbal v Hakimuddin, AIR 1995). In election petitions where Section 100 of the Representation of the People Act, 1951 governs, courts have used Rule 16 to strike out paragraphs that fail to disclose a cause of action (Jitu Patnaik v Sanatan Mohakud, (2012)).