Pleadings-First Doctrine: Supreme Court Clarifies Mandatory Scrutiny of Pleadings before Allowing Additional Evidence under Order XLI Rule 27 CPC

In the application preferred Under Order XLI Rule 27(1) of the Code, the Defendant stated that he got the information that there was no such sale by the Plaintiffs in the last week of June, 2000. After making inquiries in the office of the Sub-Registrar, he got such information and obtained certified copies of extracts of said documents. It can be seen that the High Court has proceeded to consider the application under provisions of Order XLI Rule 27(1) of the Code without examining as to whether the additional evidence sought to be led was supported by the pleadings of the Defendant in the written statement. {Para 7}

8. In our opinion, before undertaking the exercise of considering whether a party is entitled to lead additional evidence Under Order XLI Rule 27(1) of the Code, it would be first necessary to examine the pleadings of such party to gather if the case sought to be set up is pleaded so as to support the additional evidence that is proposed to be brought on record. In absence of necessary pleadings in that regard, permitting a party to lead additional evidence would result in an unnecessary exercise and such evidence, if led, would be of no consequence as it may not be permissible to take such evidence into consideration. Useful reference in this regard can be made to the decisions in Bachhaj Nahar v. Nilima Mandal and Anr.   MANU/SC/8199/2008 : 2008:INSC:1072 : AIR 2009 SC 1103 and Union of India v. Ibrahim Uddin and Anr.,   MANU/SC/0561/2012 : 2012:INSC:288 : (2012) 8 SCC 148. Thus, besides the requirements prescribed by Order XLI Rule 27(1) of the Code being fulfilled, it would also be necessary for the Appellate Court to consider the pleadings of the party seeking to lead such additional evidence. It is only thereafter on being satisfied that a case as contemplated by the provisions of Order XLI Rule 27(1) of the Code has been made out that such permission can be granted. In absence of such exercise being undertaken by the High Court in the present case, we are of the view that it committed an error in allowing the application moved by the Defendant for leading additional evidence.

9. As we have found that the application for leading additional evidence has been considered by the Appellate Court without examining the aspect as to whether the additional evidence proposed to be led was in consonance with the pleadings of the Defendant and whether such case had been set up by him coupled with the fact that the additional evidence taken on record has weighed with it while reversing the decree, the matter requires re-consideration by the High Court.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10458 of 2010 

Decided On: 22.08.2025

Iqbal Ahmed (Dead) by L.Rs. and Ors. Vs. Abdul Shukoor.

Hon'ble Judges/Coram:

Pamidighantam Sri Narasimha and A.S. Chandurkar, JJ.

Author: A.S. Chandurkar, J.

Citation: 2025 INSC 1027, MANU/SC/1139/2025.

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After the SRA 16(c) Amendment: Why Pleading Readiness Still Matters

 The amendment to Section 16(c) of the Specific Relief Act, 1963, brought significant changes to the language concerning the plaintiff’s obligation to demonstrate readiness and willingness to perform the contract. Previously, the statute was explicit that a plaintiff "who fails to aver and prove" readiness and willingness would be barred from specific performance. However, the amendment omitted the phrase “who fails to aver and prove” and instead simply states “who fails to prove.” This subtle change has raised important legal questions about whether a plaintiff must still both plead (aver) and prove readiness and willingness, or whether proof alone suffices.

The Legal Position Post-Amendment

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Whether Statutory Provision Can Be Declared Ultra Vires Without A Specific Challenge In Pleadings?

While hearing learned counsels appearing for the parties, we asked Shri B.H. Marlapalle, learned senior counsel along with Shri Shibashish Mishra appearing on behalf of the respondents and intervenors, as to how, in absence of any pleading setting out grounds challenging the vires of Rule 4(b) and in the absence of seeking any relief to that effect, the High Court was justified in exercising jurisdiction to declare Rule 4(b) as ultra vires? In response, learned senior counsel has fairly stated that it is a defect in the pleadings as well as in the relief sought before the CAT and in the writ petition. But still, they made an unsuccessful attempt to satisfy this Court that the said rule appears to be discriminatory and therefore the High Court has rightly exercised the jurisdiction while passing the impugned order. It is a trite law that for striking down the provisions of law or for declaring any rules as ultra vires, specific pleading to challenge the rules and asking of such relief ought to be made, that is conspicuously missing in the present case. In the absence of such a pleading, the Union of India did not have an opportunity to rebut the same. The other side had no opportunity to bring on record the object, if any, behind the Rules that were brought into force. We are also of the considered view that, in the writ petition seeking a writ of certiorari challenging the order of the CAT, the High Court ought not to have declared Rule 4(b) as ultra vires in the above fact situation. Therefore, the High Court was not justified to declare Rule 4(b) as ultra vires.{Para 9}

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 2299 OF 2010

UNION OF INDIA & ORS. Vs MANJURANI ROUTRAY & ORS. 

Author: J.K. Maheshwari, J.

Citation: 2023INSC787.

Dated: SEPTEMBER 01, 2023.

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Whether it is necessary to file pleadings, issues and judgment of previous suit to prove the plea of res judicata?

 The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause. {Para 11}

12. The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal (See: (Raja) Jagadish Chandra Deo Dhabal Deb v. Gour Hari Mahato and Ors. - MANU/PR/0022/1936, Madeapati Surava and Ors. v. Tondapu Bala Gangadhara Ramakrishna Reddi and Ors. - MANU/PR/0002/1947, Katragada China Anjanevulu and Anr. v. Kattragada China Ramava and Ors. - MANU/AP/0136/1965 : AIR1965AP177 ). The view taken by the Privy Council was cited with approval before this Court in The State of Punjab v. Bua Das Kaushal - MANU/SC/0492/1970 : (1971)ILLJ31SC . However, an exception was carved out by this Court and the plea was permitted to be raised, though not taken in the pleadings nor covered by any issue, because the necessary facts were present to the mind of the parties and were gone into by the Trial Court. The opposite party had ample opportunity of leading the evidence in rebuttal of the plea. The Court concluded that the point of res judicata had through out been in consideration and discussion and so the want of pleadings or plea of waiver of res judicata cannot be allowed to be urged.

13. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. May be in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai (Dead) By Lrs. and Ors. v. Mohd. Hanifa (Dead) by Lrs. and Ors. - MANU/SC/0510/1976 : [1976]3SCR721 , the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata.

It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. Bhoralal - MANU/SC/0241/1964 : [1964]7SCR831 , placing on a par the plea of res judicata and the plea of estoppel under Order II Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secretary of State For India in Council and Anr. - (1887) 15 IA 186, pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issues in the previous suit and what was heard and decided. Needless to say these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.

14. That apart the plea, depending on the facts of a given case, is capable of being waived, if not properly raised at an appropriate stage and in an appropriate manner. The party adversely affected by the plea of res judicata may proceed on an assumption that his opponent had waived the plea by his failure to raise the same. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7653 and 7654 of 1997

V. Rajeshwari Vs. T.C. Saravanabava

Hon'ble Judges/Coram:

R.C. Lahoti and Ashok Bhan, JJ.

Author: R.C. Lahoti, J.

Decided On: 16.12.2003

Citation: MANU/SC/1057/2003,(2004) 1 SCC 551

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Whether the court should reject the plaint if there is no specific pleading regarding fraud?

7.7 Even the averments and allegations with respect to knowledge of the plaintiffs averred in paragraph 19 can be said to be too vague. Nothing has been mentioned on which date and how the plaintiffs had the knowledge that the document was obtained by fraud and/or misrepresentation. It is averred that the alleged fraudulent sale came to the knowledge of the plaintiffs only when the plaintiffs visited the suit property. Nothing has been mentioned when the plaintiffs visited the suit

property. It is not understandable how on visiting the suit property, the plaintiffs could have known the contents of the sale deed and/or the knowledge about the alleged fraudulent sale.

7.8 Even the averments and allegations in the plaint with respect to fraud are not supported by any further averments and allegations how the fraud has been committed/played. Mere stating in the plaint that a fraud has been played is not enough and the allegations of fraud must be specifically averred in the plaint, otherwise merely by using the word “fraud”, the plaintiffs would try to get the suits within the limitation, which otherwise may be barred by limitation. Therefore, even if the submission

on behalf of the respondents – original plaintiffs that only the averments and allegations in the plaints are required to be considered at the time of deciding the application under Order VII Rule 11 CPC is accepted, in that case also by such vague allegations with respect to the date of knowledge, the plaintiffs cannot be permitted to challenge the documents after a period of 10 years. By such a clever drafting and using the word “fraud”, the plaintiffs have tried to bring the suits within the period of limitation invoking Section 17 of the limitation Act. The plaintiffs cannot be permitted to bring the suits within the period of limitation by clever drafting, which otherwise is barred by limitation. 

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 500 OF 2022

C.S. Ramaswamy  Vs V.K. Senthil & Ors. 

Author: M.R. SHAH, J.

Dated: SEPTEMBER 30, 2022.

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Important Provisions of CPC(Part 4 ) ( O 6 to O 8 of CPC)

 ORDER VI

Pleadings Generally

1. Pleading.—“Pleading” shall mean plaint or written statement.

344[2. Pleading to state material facts and not evidence

4. Particulars to be given where necessary.—In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary , particulars (with dates and items if necessary) shall be stated in the pleading.

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, 

7. Departure.—No pleading shall, except by way of amendment raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.

8. Denial of contract.—Where a contract is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same may be implied, and not as a denial of the legality or sufficiency in law of such contract.

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Whether the court can grant a relief for which no prayer or pleading was made?

 Issue II

15. Coming to address the second issue, while this Court is not apathetic to the predicament of the Respondent grandparents, it is a fact that absolutely no relief was ever sought by them for the change of surname of the child to that of first husband/ son of respondents. It is settled law that relief not found on pleadings should not be granted. If a Court considers or grants a relief for which no prayer or pleading was made depriving the respondent of an opportunity to oppose or resist such relief, it would lead to miscarriage of justice.

16. In the case of Messrs. Trojan & Co. Ltd. Vs. Rm.N.N. Nagappa Chettiar2, this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as under:-

"It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case.”

17. In the case of Bharat Amratlal Kothari & Anr. Vs. Dosukhan Samadkhan Sindhi & Ors.3 held:

"Though the Court has very wide discretion in granting relief, the Court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner."

18. In this case while directing for change of surname of the child, the High Court has traversed beyond pleadings and such directions are liable to be set aside on this ground.

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6325-6326 OF 2015; 

MRS. AKELLA LALITHA Vs SRI KONDA HANUMANTHA RAO & ANR.

 DINESH MAHESHWARI; J., KRISHNA MURARI; J. 

Author: KRISHNA MURARI, J.

Dated: 28TH JULY, 2022 

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Whether the court would pass judgment on admission if the defendant fails to plead the date on which his adverse possession commenced?

  With regard to what are the necessary pleadings in a case where title through adverse possession is claimed, either as a shield or as a sword, the Supreme Court in Karnataka Board of Wakf (supra) has held that a person who claims adverse possession should show : (a) on what date he had come into possession; (b) what was the nature of his possession; (c) whether the factum of the possession was known to the other party; (d) how long his possession has continued and (e) his possession was open and undisturbed. It is a well settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. This possession which is adequate in continuity, in publicity, and in extent must be to show that the possession is adverse to the true owner. It must start with wrongful dispossession of the rightful owner and the actual physical and hostile continued possession over a statutory period.{Para 27}

28. No doubt the defendants have accepted the fact that this suit property had fallen in the share of late Sudhir Kumar Tyagi, the plaintiffs' predecessor-in-interest, on partition of the suit property and he had been its owner since then. However, one fact that stands out is that in 2004, the defendants admit that defendant No. 1 requested late Sudhir Kumar Tyagi to allow them to use the plot which was adjacent to their Sports Complex. In view of the fact that the parties were on good terms, as per the averments in the written statement, late Sudhir Kumar Tyagi had permitted the defendant No. 1 to use the plot. Thus, the possession has not been a result of wrongful dispossession of the rightful owner, when the defendant No. 1 came into the premises.

29. It is trite that long possession will not affect the title of the true owner. Nor would the lack of use of the property by the owner, for a long time, affect his title. It is only when the defendants start asserting hostile title that the clock will start ticking. Strangely, in the entire written statement, the defendants have not stated with any definiteness as to the dates since when they had started asserting their hostile title. That alone would disclose a valid defence to the suit by asserting title by adverse possession. The mere fact that the boundary walls had been built by the defendants cannot be termed as a hostile act against the true owner as the walls had been constructed to define the properties of the defendants after the family partition took place. Nor for that matter, would the construction activities at the site be inferred as an assertion of hostility by the defendant No. 1, as nowhere it is stated that he had done so without the permission of the true owner late Sudhir Kumar Tyagi and in fact claimed title during his life time.

30. In fact, there is no disclosure in this regard, except a bald assertion. But when the written statement is seen in totality, the fact that the parties were in a cordial relationship and the defendant No. 1 himself claims that the water and electricity meters continue to stand in the name of late Sudhir Kumar Tyagi and that he used to reimburse him when payments were made, would show that the defendant No. 1 did not assert independent and hostile title to late Sudhir Kumar Tyagi. It is in this background that a date had to be disclosed when assertion of hostile possession was first made, since limitation would then be counted from that date. An essential ingredient has thus not been pleaded.

31. The defendants had to specifically plead with sufficient clarity when the possession became adverse and the exact date when adverse possession commenced and whether this fact was let known to the real owner. Their only reliance is on construction activities but that fact alone does not establish hostile title, as the initial possession was permissive. It was deemed to have continued till the plaintiffs revoked that permission to the defendants to remain in the suit property. It is only when the required animus to hold the property in a manner hostile to the true owner that it would be possible to determine how many years have passed since such open and hostile possession continued. Without commencement, there cannot be continuation. In the present case, a fundamental plea to submit the claim of adverse possession is missing and the burden on the defendants has not been discharged.

 In the High Court of Delhi at New Delhi

(Before Asha Menon, J.)

Monika Tyagi and Others  Vs Subhash Tyagi and Others 

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Whether court should pass judgment on admission if defence of defendant is moonshine?

 The Division Bench of this court in P.P.A. Impex Pvt. Ltd. (supra) after reference to T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467 observed as below:

“9. It appears to us that the approach to be taken under Order XII Rule 6 is akin to what has been enunciated by the Supreme Court in Mechalac Engineers & Manufacturers v. Basic Equipment Corporation, (1976) 4 SCC 687, in the context of Order 37 of the CPC with regard to granting leave to defend a summary suit. This is that if a defence amounting to moonshine has been presented, it should be summarily dismissed by not granting leave to defend and by decreeing the suit forthwith. The Courts are already groaning under the weight of bludgeoning and exponentially increasing litigation. The weight will unvaryingly increase if moonshine defences are needlessly permitted to go to trial.

(emphasis added) {Para 24}

25. It further went on to hold that if pleadings that were vague and were in the nature of total moonshine were taken note of, the provision of Order XII Rule 6 would be virtually annihilated.

26. Thus, while disposing of an application under Order XII Rule 6 CPC, the court is fully justified in considering the averments in the written statement to see whether essential facts have been pleaded or whether the defence is a complete moonshine, requiring the Court to not send the case for trial.

 In the High Court of Delhi at New Delhi

(Before Asha Menon, J.)

Monika Tyagi and Others  Vs Subhash Tyagi and Others 

CS(OS) 230/2020 and I.As. 7755/2020 

Decided on December 17, 2021

Citation: 2021 SCC OnLine Del 5400

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Is a right created in a party by any observation of court made without pleading and evidence?

 Shri Sawant emphasises that on 16.04.2012, this Court

did observe in its docket proceedings that both the brothers contributed the sale consideration. So, it is beyond any pale of controversy that Subhash has a stake in the decretal amount.

That accepted, if the Court allows Rajesh to withdraw the entire decretal amount, it prejudices Subhash. In this context, Shri Sawant insists that Rajesh has played fraud on Subhash. With that, the whole judicial proceedings stand vitiated. So no

procedural limitations can come in the way of this Court’s

allowing the interlocutory application. That, in fact, serves the

cause of justice. {Para 14}

  Now, let us deal with a collateral issue. Subhash insists

that this Court, in its order dated 16.04.2012, noted that

Subhas, too, contributed to the sale consideration. In this

context, I may note that to facilitate adjudication of the matter,

procedurally the Court undertakes various steps. And in that

process, it may prima facie observe or record certain aspects

based on the counsel’s representations. They are sans pleadings

and sans evidence. Such observations do acknowledge the

parties existing rights if any, but they do not create rights on

their own. A Court’s observation cannot give rise to a right

unless it has already existed, nor does it provide a cause of

action. Here, in this case it had never been in the Court’s

contemplation as to who contributed the sale consideration. It is

a non sequitur. {Para 35}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION (L) NO. 11624 OF 2021

IN

SUIT NO. 2700 OF 2011

RAJESH SAICHAND SHARMA Vs SUDERSHAN GANGARAM RAJULA 

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Whether the court can convict wife for defamatory pleadings made by her against the husband in matrimonial proceeding?

Learned Amicus Curiae for the respondent/complainant in Criminal Revision Petition No. 152/2014, in her argument stating that the pleadings filed in a Court and the deposition given in a Court of Law are not privileged one and further stating that a pleading filed in the Court also amounts to publication, has relied upon few judgments in her support as follows.

In the case of Smt. Madhuri Mukund Chitnis Vs. Mukund Martand Chitnis and another reported in MANU/MH/0120/1990 : 1990 CRL. L.J. 2084, the Bombay High Court was pleased to observe that, the imputations made in a proceeding which is filed in a Court is clearly a publication. It further observed that even a publication to an authority over the person against whom the imputations are made must be held to be sufficient publication which falls within the purview of the said Section 499 of IPC.

In the case of M.K. Prabhakaran and another Vs. T.E. Gangadharan and another reported in MANU/KE/0074/2006 : 2006 CRI. L.J. 1872, the Kerala High Court, in a matter where it is alleged that defamatory statements against complainant were made in a written statement filed before the Court held that, once a statement has been filed in a Court of Law, that statement can be taken as published. If such a statement amounts to per se defamatory, then it is the duty of the accused to establish that, they are justified in making such a statement under any of the exceptions to Section 499 of IPC.

In the case of Sanjay Mishra Vs. Government of NCT of Delhi & another, the Delhi High Court in paragraphs 11 and 12 of its judgment was pleased to observe as below:-

"11. In Sandyal V. Bhaba Sundari Debi MANU/WB/0241/1910 : 7 Ind. Cas. 803 : 15 C.W.N. 995 : 14 C.L.J. 31 the learned Judges, following the case of Augada Ram Shaha V. Nemai Chand Shaha MANU/WB/0132/1896 : 23 C.867 : 12 Ind. Dec.(n.s.)576, held that defamatory statements made in the written statement of a party in a judicial proceedings are not absolutely privileged in this country, and that a qualified privilege in this regard cannot be claimed in respect of such statements, unless they fall within the Exceptions to Section 499 of the Indian Penal Code. Undisputedly, the case of the petitioner was not in any of these Exceptions.

12. For criminal purposes "publication" has a wider meaning than it has in civil law, since it includes a communication to the person defamed alone. The prosecution for defamation in criminal cases can be brought although the only publication is to the person defamed as it is very likely to provoke a breach between the persons involved...."

In the case of Thangavelu Chettiar Vs. Ponnammal reported in MANU/TN/0132/1966 : AIR 1966 Mad 363, the Madras High Court was pleased to observe that, there can be no doubt that the defamation contained in the plaint was published by the plaint being filed in the Court.

20. In the instant case, to bring the statements made by the accused in Ex. P-4 which are contested to be defamatory as the one made with good faith and thus falling within the Ninth Exception to Section 499 of IPC, she has to show that she had made those statements with due care and attention. However, her own statement made at more than one place in her cross-examination as DW-1 that, she has stated that what she has stated in her statement of objections were the facts and they were the incidents occurred between herself and her husband i.e. the complainant. She has reiterated that they were the truth, as such, they were fact, in her further cross-examination also. Therefore, though the learned counsel for the accused contends that, she made the same in good faith, but according to accused, they were truth. If they are truth and falling under First Exception to Section 499 of IPC, then it is for her to prove that they were the facts.

Admittedly, except making those statements in her statement of objections at Ex. P-4 and reiterating it in Ex. P-1, she has not even attempted to show that they were the imputation of truth or that they were made in good faith. Therefore it can be safely held that the complainant has proved beyond reasonable doubt that the accused has committed an offence of defamation punishable under Section 499 of IPC, which is punishable under Section 500 of IPC.

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Criminal Revision Petition Nos. 152 of 2014 and 1358 of 2010

Decided On: 01.10.2020

 Sushma Rani  Vs.  H.N. Nagaraja Rao

Hon'ble Judges/Coram:

Dr. H.B. Prabhakara Sastry, J.

Citation: MANU/KA/3441/2020

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Whether the court frame issues on vague pleadings?

The proceedings in a civil suit are governed by the procedure laid down in the CPC and which provides for pleadings by the adversarial parties, framing of issues on the substantial questions of law and facts arising thereon, evidence being confined to the issues and findings in the judgment and decree in the suit being confined to the issues framed. A suit is not entitled to succeed or liable to be dismissed on a reasoning which has no foundation in pleadings and/or on which no issue has been struck. In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack De Sequeira MANU/SC/0225/2012 : (2012) 5 SCC 370 it was held that if pleadings do not give sufficient details, they will not raise an issue and the Court can reject the claim or pass a decree on admission. It was further held that on vague pleadings, no issue arises. 

IN THE HIGH COURT OF DELHI

RSA No. 394/2015

Decided On: 29.04.2020

Gopi Chand  Vs.  Geeta Devi and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

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Supreme Court: Necessary ingredients for proof of dissolution of Muslim marriage by Khula

From the discussion aforesaid, what we find is that 'Khula' is a mode of dissolution of marriage when the wife does not want to continue with the marital tie. To settle the matter privately, the wife need only to consult a Mufti (juris consult) of her school. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. Further, if the wife does not want to continue with marital tie and takes mode of 'Khula' for dissolution of marriage, she is required to propose her husband for dissolution of marriage. This may or may not accompany her offer to give something in return. The wife may offer to give up her claim to Mahr (dower). The 'Khula' is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. However, if the matter is carried to the point of litigation and cannot be settled privately then the Qazi (Judge) is required to deliver a qaza (judgment) based upon the Shariat.

15. In the present case, the Appellant stated that she has obtained an ex parte 'Khula' on 9th May, 2008 from Mufti under the Muslim Personal Law. Neither it is pleaded nor it is made clear by the Appellant or the 1st Respondent as to whether for such 'Khula' the Appellant made a proposal to husband-Ist Respondent for dissolution of marriage accompanied by an offer to give something in return. It has not been made clear that whether the Appellant gave up her claim to Mahr (dower). The husband, 1st Respondent has not accepted 'Khula' given by Mufti (jurisconsult) which is in the form of fatwa or advisory decision based on the Shariat. He, however, has not moved before the Qazi (Judge) to deliver a qaza (judgment) based upon the Shariat. Instead, he has moved before the Family Court, Bandra against the 'Khula' by filing petition-M.J. Petition No. B-175 of 2008. He has also prayed for restitution of conjugal right. Therefore, with no certainty, it can be stated that the divorce was taken on 9th May, 2008.

16. In Shamim Ara v. State of U.P. and Anr. MANU/SC/0850/2002 : (2002) 7 SCC 518, this Court considered valid 'Talaq' in Islamic Law. This Court while discussing the correct law of 'Talaq, as ordained by the Holy Quran observed that Talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters-one from the wife's family and the other from the husband's; if the attempts fail Talaq may be effected. The Court further held that the Talaq to be effective has to be pronounced.

18. In the present case, as noticed that there is no definite plea taken either by the Appellant or by the 1st Respondent that 'Khula' become effective in accordance with Muslim Personal Law (Shariat). Neither the Appellant nor the 1st Respondent placed any evidence in support of such divorce. No specific pleading was made that the Appellant proposed to her husband-1st Respondent for dissolution of marriage. On the other hand, it is clear that the 'Khula' was pronounced by the Mufti ex parte. For the said reason, the 1st Respondent challenged the same by filing M.J. Petition No. B-175 of 2008, before the Family Court, Bandra. In this background, we hold that the Sessions Judge, Sewree, Mumbai by order dated 3rd November, 2012 wrongly observed and held that the Appellant is no more wife of the 1st Respondent. The High Court has also failed to notice that no evidence was produced in support of the statement either made by the Appellant or by the 1st Respondent. It also failed to appreciate the fact that the 'Khula' was obtained from the Mufti and not from Qazi and the same was challenged by the 1st Respondent before the Family Court, Bandra, Mumbai and wrongly upheld the finding of the Sessions Judge. Therefore, with no certainty, it can be stated that the divorce has taken place on 9th May, 2008, in absence of pleading, evidence and finding.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2069 of 2014 

Decided On: 18.09.2014

Juveria Abdul Majid Patni  Vs. Atif Iqbal Mansoori

Hon'ble Judges/Coram:

S.J. Mukhopadhaya and S.A. Bobde, JJ.

Citation: (2014) 10 SCC 736

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Whether landlord can claim rent towards lock-in period without pleading that he has sustained loss due to premature vacation of premises?

The reason why I state that the suit as per averments in the plaint itself was not maintainable and should not have been entertained is, that the plaintiff, though pleading breach of contract i.e. Lease Deed and the Maintenance Agreement by the defendant and without pleading any loss from such breach, is seeking relief in the nature of specific performance and which is not permissible in law. The Lease Deed was not specifically enforceable at the instance of the plaintiff as the landlord and on breach of the Lease Deed by the defendant as tenant, by vacating the premises before expiry of the term thereof, the plaintiff was entitled to only damages for breach of contract and the measure of which damages was the loss if any suffered by the plaintiff. However, the plaintiff was required to plead such loss and no loss has been pleaded.

11. The position with respect to rent of lock-in period is akin to that of earnest money/security and qua which the Supreme Court in Kailash Nath Associates Vs. Delhi Development Authority MANU/SC/0019/2015 : (2015) 4 SCC 136, followed by me in Speed Track Cargo Vs. State Bank of Patiala MANU/DE/0359/2016, Palm Art Apparels Pvt. Ltd. Vs. Enkay Builders Pvt. Ltd. MANU/DE/3533/2017, Mera Baba Pvt. Ltd. Vs. Ram Lubhaya Puri MANU/DE/2199/2018, Klintoz Pharmaceuticals Pvt. Ltd. Vs. Ravinder Shankar Mathur MANU/DE/3733/2018, Satish Verma Vs. Garment Craft (India) Pvt. Ltd. MANU/DE/7859/2017 and Mahendera Verma Vs. Suresh T. Kilachand MANU/DE/2352/2019, held that mere entitlement in the agreement to forfeit is not enough and loss/damages from breach of contract has to be proved. In fact, the matter is no longer res integra. The Division Bench of this Court in Tower Vision India Pvt. Ltd. Vs. Procall Pvt. Ltd. MANU/DE/4958/2012 has held that rent of the lock-in period in a Lease Deed cannot be claimed without pleading loss from vacation by the tenant of the property prior to the expiry of the term of lease. 

IN THE HIGH COURT OF DELHI

CS (OS) 3032/2014

Decided On: 06.01.2020

 Deepak Chopra  Vs.  Flakt (India) Pvt. Ltd.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

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Whether a party can claim exemption from law of limitation in absence of pleading and proof as per O 7 R 6 of CPC?

The provisions of Sections 4 to 20 of limitation Act are exceptions when suit beyond the period of limitation as prescribed in the Schedule shall not be dismissed as required by Section 3. In this context, we need to refer to Order VII Rule 6 of the Code of Civil Procedure. Order VII deals with plaint. Order VII Rule 6 contains a heading "Grounds of exemption from limitation law". Order VII Rule 6 is as follows:

6. Grounds of exemption from limitation law. - Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed:

Provided that the Court may permit the Plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint.

12. Order VII Rule 6 uses the words "the plaint shall show the ground upon which exemption from such law is claimed". The exemption provided Under Sections 4 to 20 of the Limitation Act, 1963 are based on certain facts and events. Section 19, with which we are concerned, provide for a fresh period of limitation, which is founded on certain facts, i.e., (i) whether payment on account of debt or of interest on legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, (ii) an acknowledgement of the payment appears in the handwriting of, or in a writing signed by, the person making the payment. We may notice the judgment of this Court dealing with Section 20 of the Limitation Act, 1908, which was akin to present Section 19 of the Limitation Act, 1963. In Sant Lal Mahton v. Kamla Prasad and Ors. MANU/SC/0043/1951 : AIR 1951 SC 477, this Court held that for applicability of Section 20 of the Limitation Act, 1908, two conditions were essential that the payment must be made within the prescribed period of limitation and it must be acknowledged by some form of writing either in the handwriting of the payer himself or signed by him. This Court further held that for claiming benefit of exemption Under Section 20, there has to be pleading and proof. In paragraphs 9 and 10, following has been laid down:

9. It would be clear, we think, from the language of Section 20, Limitation Act, that to attract its operation two conditions are essential: first, the payment must be made within the prescribed period of limitation and secondly, it must be acknowledged by some form of writing either in the handwriting of the payer himself or signed by him. We agree with the Subordinate Judge that it is the payment which really extends the period of limitation Under Section 20, Limitation Act; but the payment has got to be proved in a particular way and for reason of policy the legislature insists on a written or signed acknowledgment as the only proof of payment and excludes oral testimony. Unless, therefore, there is acknowledgment in the required form, the payment by itself is of no avail. The Subordinate Judge, however, is right in holding that while the Section requires that the payment should be made within the period of limitation, it does not require that the acknowledgment should also be made within that period. To interpret the proviso in that way would be to import into it certain words which do not occur there. This is the view taken by almost all the High Courts in India and to us it seems to be a proper view to take (See Md. Moizuddin v. Nalini Bala MANU/WB/0020/1937 : A.I.R. (24) 1937 Cal 284 : I.L.R. (1937) 2 Cal. 137; Lal Singh v. Gulab Rai MANU/UP/0303/1932 : 55 All 280, Venkata Subbhu v. Appu Sundaram 17 Mad. 92, Ram Prasad v. Mohan Lal A.I.R. (10) 1923 Nag 117 and Viswanath v. Mahadeo 57 Bom. 453.

10. ...If the Plaintiff's right of action is apparently barred under the Statute of limitation, Order 7, Rule 6, Code of Civil Procedure makes it his duty to state specifically in the plaint the grounds of exemption allowed by the Limitation Act upon which he relies to exclude its operation; and if the Plaintiff has got to allege in his plaint the facts which entitle him to exemption, obviously these facts must be in existence at or before the time when the plaint is filed; facts which come into existence after the filing of the plaint cannot be called in aid to revive a right of action which was dead at the date of the suit. To claim exemption Under Section 20. Limitation Act the Plaintiff must be in a position to allege and prove not only that there was payment of interest on a debt or part payment of the principal, but that such payment had been acknowledged in writing in the manner contemplated by that section....

IN THE SUPREME COURT OF INDIA

Review Petition (C) Nos. 786-787 of 2019 in Civil Appeal Nos. 8442-8443 of 2016, 

Decided On: 18.12.2019

Shanti Conductors (P) Ltd. Vs.  Assam State Electricity Board 

Hon'ble Judges/Coram:

Ashok Bhushan, S. Abdul Nazeer and Navin Sinha, JJ.

Citation: (2020) 2 SCC 677.

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What material facts are to be pleaded by a party claiming property to be joint family property?

I may note that the requirement of pleading in a clear cut manner as to how the HUF and its properties exist i.e. whether because of pre 1956 position or because of the post 1956 position on account of throwing of properties into a common hotchpotch, needs to be now mentioned especially after passing of the Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as "the Benami Act") and which Act states that property in the name of an individual has to be taken as owned by that individual and no claim to such property is maintainable as per Section 4(1) of the Benami Act on the ground that monies have come from the person who claims right in the property though title deeds of the property are not in the name of such person. An exception is created with respect to provision of Section 4 of the Benami Act by its sub-section (3) which allows existence of the concept of HUF. Once existence of the concept of HUF is an exception to the main provision contained in sub-sections (1) and (2) of Section 4 of the Benami Act, then, to take the case outside sub-sections (1) and (2) of Section 4 of the Benami Act it has to be specifically pleaded as to how and in what manner an HUF and each specific property claimed as being an HUF property has come into existence as an HUF property. If such specific facts are not pleaded, this Court in fact would be negating the mandate of the language contained in sub-sections (1) and (2) of Section 4 of the Benami Act."

 The clear legal position is that a party which claims that a particular property is joint family property must specifically plead the origin of the HUF, whether pre 1956 or post 1956, and give sufficient particulars as to the creation of the HUF as well as the ownership of the property by the HUF.

IN THE HIGH COURT OF DELHI

CS (OS) 1214/2014

Decided On: 11.02.2020

 Rajeev Chawla  Vs. Deepak Chawla

Hon'ble Judges/Coram:

Prateek Jalan, J.

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Whether illiterate lady is entitled to get benefit of Pardanashin lady in absence of pleading?

The Plaintiff-first Respondent filed a Suit No. 155 of 1996 before the Civil Judge (J.D.), Roorkee. A copy of the plaint has been placed on record (Annexure P/1). On perusal of the plaint, it reveals that it has nowhere been pleaded that the Plaintiff-first Respondent is a pardanasheen illiterate lady. In the ordinary course the burden of proof rest, on who attack. On the contrary, it was pleaded in the plaint that Defendant Nos. 1 and 3 are the sons of her uncle Mangta and Defendant No. 2 is the wife of Defendant No. 1 and they hatched a conspiracy to grab the land of the Plaintiff-first Respondent and with connivance, the power of attorney was prepared & registered on 25th April, 1995 in the registry office, in the name of the Plaintiff and pursuant thereto, suit land was sold by a registered sale deed. On the basis of pleadings on record, the above-mentioned eight issues were framed on which both the parties have adduced oral and documentary evidence and the trial Judge, after considering the evidence, dismissed the suit vide judgment and decree dated 19th January, 2001 and that came to be affirmed on dismissal of the appeal filed at the instance of the Plaintiff-first Respondent dated 27th August, 2001. It reveals from the record that without there being any factual foundation, the High Court, while admitting the appeal, framed two substantial questions of law in reference to which there was no supporting pleadings on record.

14. We still, for our satisfaction have gone through the plaint placed on record at Annexure P/1 and we are unable to find the pleadings in support that she was a pardanasheen illiterate lady and was entitled for protection of law and the burden was on the Defendant-Appellant to prove that the alleged power of attorney was the result of fraud.

15. After we have heard the parties, we are of the view that the High Court has committed a manifest apparent error in reversing the concurrent finding of the two Courts below and on this score the impugned judgment is not sustainable.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7137 of 2010

Decided On: 17.09.2019

 Ali Hussain  Vs.  Rabiya 

Hon'ble Judges/Coram:

N.V. Ramana, Mohan M. Shantanagoudar and Ajay Rastogi, JJ.

Citation: AIR 2019 SC 4313

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Whether court can allow production of document in absence of pleading in respect of that document?

 Indisputably, the assertion regarding transaction covered by sale deed dated 06.01.2006, executed by Vimal Kumar, was not on record of the Trial Court. In absence of any pleadings or existence of facts on the record of the Trial Court, no permission to produce additional documents could be granted. The basic consideration, while allowing the application under Order 8, Rule 1A(3) of the Code is; as to whether the document in question is required for adjudication of the dispute between the parties and whether the defendant was precluded from producing the same along with the written statement, as mandated by Rule 1A of Order VIII of the Code. In absence of any such pleading, the relevance of the document dated 06.01.2006 itself becomes a question mark. The respondent's application did not contain any explanation for inordinate delay in seeking leave to produce the document, which had been executed on 06.01.2006. The application was clearly proscribed or prohibited by the provisions contained in Order VIII, Rule 1A of the Code. The Trial Court has, therefore, clearly erred in arriving at a finding that the sale deed dated 06.01.2006 is relevant.

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Writ Petition No. 16351 of 2017

Decided On: 30.07.2019

Tulsi Ram Jagannath Agarwal  Vs. Parmeshwar Lal and Ors.

Hon'ble Judges/Coram:

Dinesh Mehta, J.

Citation: AIR 2019 Raj 170

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Whether it is necessary to file pleadings of previous suit for proving bar of O 2 R 2 of CPC?

Regarding the plea on the basis of Order 2 Rule 2 CPC it need only be noticed that Hon'ble Supreme Court in Gurbux Singh v. Bhooralal, (1964) 7 SCR 831 held that the plea of a bar under Order 2 Rule 2 CPC being a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It was held that a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits.

"6. In order that a plea of a Bar under Order 2 Rule 2(3) of the Civil 10 of 16 Procedure Code should succeed the defendant who raises the plea must make out; (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in CS 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under Order 2 Rule 2 of the Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the stage of the appeal the learned District Judge noticed this lacuna in the appellant's case and pointed out, in our opinion, rightly that without the plaint in the previous suit being on the record, a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code was not maintainable.

Punjab-Haryana High Court

Gurmit Kaur & Ors vs Harpal Singh on 21 February, 2019

                   RSA No.2719 of 2013 (O&M)                   


  Coram:      Hon'ble Mr. Justice Harinder Singh Sidhu

Citation: AIR 2019(NOC)731(P&H)

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What is distinction between pleading under CPC,Writ Petition and counter Affidavit?

It is necessary to make a mention at this juncture about the manner 

in which a petition for anticipatory bail has to be drafted.  In a leading 

case in  Bharat Singh and Ors. vs. State of Haryana and Ors (1988) 4SCC 534, 

the Honble Supreme Court drew a distinction between a pleading under the CPC 

and a writ petition or a counter affidavit.  While in a pleading, that is, a 

plaint or a written statement, the facts and not evidence are required to be 

pleaded, in a writ petition or in the counter affidavit not only the facts 

but also the evidence in proof of such facts have to be pleaded and annexed 

to it.   If an accused is to be granted anticipatory bail in a case arising 

under the Atrocities Act, he has to fulfil the test laid down in Dr.Subhash 

Kashinath Mahajan case.  It is true that there are no strict rules of 

pleading in Criminal Procedure Code as those in the Civil Procedure Code.  

Nevertheless, the principles of natural justice require that the victim is 

not taken by surprise. Hence, the petition to be filed by the accused along 

with the anexures should contain all the necessary and relevant materials. 

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT 

( Criminal Jurisdiction )

Date  : 26/11/2019

PRESENT

THE HONBLE MR.JUSTICE G.R.SWAMINATHAN

CRL OP(MD). No.17224 of 2019

Dr.S.Ariharan, Vs.  The Inspector of Police,

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