Code of Civil Procedure, 1908 (CPC)
Pleadings under Order VI CPC: Rules, Verification, Striking Out and Amendment
Pleadings are the written statements of the parties' cases, and the whole of a civil trial is built upon them: the issues are framed from them, the evidence is confined to them, and the decree must correspond to them. Order VI of the Code of Civil Procedure, 1908 lays down what a pleading must contain, what it must not, how it is signed and verified, when it may be struck out, and, in the most litigated rule of the Order, when it may be amended. These notes cover the whole Order, ending with the law on amendment and the due diligence proviso introduced in 2002.
1. Meaning and Object of Pleadings
§ Order VI Rule 1, CPC 1908 “Pleading” shall mean plaint or written statement. |
The definition is exhaustive for the Code's purposes: only two documents are pleadings, the plaint by which the plaintiff states his case, and the written statement by which the defendant answers it, including a set-off or counterclaim, and a replication where the court permits one. The object of pleadings is threefold and worth stating in any answer: to inform each party of the case he has to meet, so that no one is taken by surprise at the trial; to define the issues, since the court frames issues from the pleadings under Order XIV Rule 1; and to fix the scope of the trial, because evidence outside the pleadings is irrelevant and no party may be allowed to depart from what he has pleaded.
2. The Fundamental Rules of Pleading
§ Order VI Rule 2, CPC 1908 (1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words. |
Four rules of pleading are drawn from Rule 2 and from the rules that follow, and they are traditionally stated as a set: plead facts, not law; plead material facts only; do not plead the evidence by which facts are proved; and state the facts concisely but with precision.
Material facts and evidence
A material fact is one which the party must prove to succeed, so that its omission would leave the claim or defence incomplete; evidence is the means by which a material fact is established. The distinction is sometimes described as that between facta probanda, the facts to be proved, and facta probantia, the facts by which they are proved. A plaintiff pleading a contract states that the contract was made, on what date and on what terms; he does not plead the letters, the witnesses, or the conversations by which he will prove it. The consequence of blurring the line is a prolix pleading that invites objection and obscures the issues.
Material facts and particulars
Particulars are the details that make a general allegation intelligible and answerable. Rule 4 requires that in all cases of misrepresentation, fraud, breach of trust, wilful default or undue influence, the party pleading must state the particulars, with dates and items where necessary. The distinction from material facts is one of function: material facts state the cause of action, while particulars amplify it so that the other side knows precisely what is alleged. A pleading of fraud without particulars is bad, however emphatically the fraud is asserted, and this is the single most examined proposition of Rule 4.
Facts, not law
A party pleads facts and leaves the legal consequences to the court, on the principle that the court knows the law. Two qualifications are settled: a mixed question of law and fact must be pleaded so far as the facts are concerned, and foreign law must be pleaded and proved as a fact, since the court does not take judicial notice of it. A plea that a transaction was void, or a document was a mortgage rather than a sale, must be supported by the facts that make it so.
3. Special Rules of Pleading: Rules 3 to 13
Rule | What it provides |
|---|---|
Rule 3 | Forms in Appendix A, with such variations as circumstances require, shall be used for pleadings |
Rule 4 | Particulars must be stated in all cases of misrepresentation, fraud, breach of trust, wilful default or undue influence, with dates and items where necessary |
Rule 6 | Any condition precedent, the performance or occurrence of which is intended to be contested, must be distinctly specified; performance or occurrence of every other condition precedent is implied in the pleading |
Rule 7 | 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 it: the rule against departure |
Rule 8 | A bare denial of a contract is to be construed only as a denial of the making of the contract in fact, not of its legality or sufficiency in law |
Rule 9 | The effect of a document may be stated, and the whole or part of it need not be set out, unless the precise words are material |
Rule 10 | Wherever malice, fraudulent intention, knowledge or other condition of the mind is material, it may be alleged as a fact without setting out the circumstances from which it is inferred |
Rule 11 | Wherever a notice is material, it is sufficient to allege it as a fact, unless the form or the precise terms or the circumstances are material |
Rule 12 | An implied contract or relation may be alleged as a fact, with the circumstances from which it is to be inferred pleaded generally |
Rule 13 | Neither party need plead any matter of fact which the law presumes in his favour or as to which the burden of proof lies on the other side |
Alternative and inconsistent pleadings
A party may plead alternative cases, and a plaintiff may claim relief in the alternative, since he is entitled to put his case on more than one legal footing. What he may not do is plead facts that are mutually destructive, or, by force of Rule 7, raise a new ground of claim or an allegation inconsistent with his own previous pleadings except by amendment. The position of the defendant is more generous: he may take inconsistent defences, denying the contract and pleading in the alternative that if made it was void, because a defendant is entitled to put the plaintiff to proof on every point without committing himself to a single version.
Departure from pleadings
Rule 7 enacts the rule against departure. Its practical consequences run through the trial: no evidence may be led on a case not pleaded; no issue may be framed on such a case; and no relief may be granted on a ground never raised. The rule is not a technicality but the corollary of the object of pleadings, since a party cannot meet a case he was never told of. Where the pleading proves inadequate, the remedy is amendment under Rule 17, not evidence outside the pleadings.
4. Signing and Verification: Rules 14, 14A and 15
i. Rule 14: signature. Every pleading is signed by the party and by his pleader, if any; where the party is unable to sign by reason of absence or other good cause, it may be signed by a person duly authorised by him to sign or to sue or defend on his behalf.
ii. Rule 14A: address for service. Every party must file an address for service with the pleading, and changes must be notified, so that processes reach the parties throughout the litigation.
iii. Rule 15: verification. Every pleading is verified at the foot by the party or by some other person acquainted with the facts. The verification must specify, by reference to the numbered paragraphs, what the verifier verifies of his own knowledge and what upon information received and believed to be true, and must be signed and dated.
iv. Rule 15(4): affidavit in support. The person verifying the pleading must furnish an affidavit in support of his pleadings, the requirement introduced by the 2002 amendment and mirrored in Section 26(2). In commercial suits, Order VI Rule 15A requires a statement of truth in the prescribed form.
v. Effect of defective verification. A defect in verification is an irregularity, not a nullity: the court may permit the pleading to be verified afresh, as Vidyawati Gupta confirms in relation to the corresponding requirements under Section 26 and Order IV.
5. Striking Out Pleadings: Order VI Rule 16
§ Order VI Rule 16, CPC 1908 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 power is directed at matter within a pleading, not at the pleading as a whole, and it is exercised sparingly. Scandalous matter is that which is both irrelevant and defamatory or offensive; matter that is relevant does not become scandalous because it is unpleasant to the other side. Frivolous or vexatious matter is that which raises no arguable issue or is inserted to annoy. Matter tending to prejudice, embarrass or delay the fair trial is that which confuses the real issues or imposes an unnecessary burden of proof. The court does not use Rule 16 to decide the merits: where the objection is that the suit as a whole discloses no cause of action or is barred, the appropriate provision is Order VII Rule 11, and where it is that the pleading is inadequate, the answer is amendment.
6. Amendment of Pleadings: Order VI Rule 17
§ Order VI Rule 17, CPC 1908 The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed 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. |
Amendment of pleadings: the liberal approach, the due diligence proviso, and the limits
The two tests for allowing an amendment
The settled approach, before trial commences, is liberal, and it turns on two questions. First, is the amendment necessary for determining the real questions in controversy between the parties? Second, can it be allowed without injustice to the other side, injustice being measured by whether the prejudice can be compensated in costs? Where both answers are favourable, the amendment is allowed almost as of course, because the purpose of pleadings is to serve the trial and not to trap the parties. The classical statement is that of Bowen L.J. in Cropper v. Smith, adopted in India in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363: however negligent or careless the first omission, and however late the proposed amendment, it ought to be allowed if it can be made without injustice to the other side, since there is no injustice if the other side can be compensated by costs.
Amendment after the commencement of trial: the due diligence proviso
The proviso, restored with the rule by the 2002 amendment, changes the position after trial has commenced. Two questions then arise. When does trial commence? In Vidyabai v. Padmalatha, (2009) 2 SCC 409, the Supreme Court held that trial commences when the suit is set down for the recording of evidence, that is, when the affidavits of examination-in-chief are filed and evidence begins, not on the date of the first hearing. What must the applicant show? That in spite of due diligence he could not have raised the matter before that time, a burden on the applicant, to be established on material and not on assertion. Vidyabai holds the proviso mandatory, so a court has no discretion to allow a post-trial amendment where due diligence is not shown.
📖 Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 SCC 385 An application to amend a plaint was rejected on the view that the amendment would change the nature of the suit. The Supreme Court restated the principles governing Order VI Rule 17. The rule has two parts: the first is discretionary, allowing the court to permit amendment at any stage, while the second is imperative, requiring that all amendments necessary for determining the real questions in controversy be made. The court must consider whether the amendment is necessary to decide the real dispute, and if it is, it should be allowed, the addition of a new cause of action or a new relief being permissible where the real controversy requires it; refusal on a narrow view of the pleadings defeats the object of the rule. The merits of the amendment are not to be judged at the stage of allowing it. Rule: the leading modern statement of the liberal approach. The test is necessity for determining the real controversy, and the merits of the amended plea are for the trial, not for the amendment application. |
📖 Vidyabai v. Padmalatha, (2009) 2 SCC 409 After issues were framed and the affidavit of examination-in-chief was filed, the defendants applied to amend their written statement. The Supreme Court held the application barred by the proviso to Order VI Rule 17. It held that the trial commences when the suit is set down for the recording of evidence, which had occurred, and that the proviso is mandatory: the court has jurisdiction to allow an amendment thereafter only on arriving at the conclusion that in spite of due diligence the party could not have raised the matter earlier. The provision was enacted deliberately to curtail delay through belated amendments, and its language leaves no room for a general dispensation. Rule: the proviso is mandatory, trial commences with the recording of evidence, and due diligence must be affirmatively established. |
New cause of action, limitation and the relation-back doctrine
An amendment ordinarily relates back to the date of the original pleading, and this is why limitation is the recurring objection. The settled position has three parts. An amendment that merely elaborates or clarifies what was already pleaded relates back and raises no limitation question. An amendment that introduces a new cause of action or a new claim already barred by limitation is ordinarily refused, because allowing it would take away a valuable right accrued to the other side by the lapse of time, and that is an injustice costs cannot compensate. But the rule is not absolute: the court may allow such an amendment where the interests of justice require it, and may direct that the amendment operate from the date of the application rather than relating back, so the defendant retains his limitation defence to the new claim.
Amendment of plaint compared with amendment of written statement
Basis | Amendment of the plaint | Amendment of the written statement |
|---|---|---|
Approach of the court | Liberal, but with attention to limitation and the nature of the suit | More liberal still, since adding a defence rarely takes away an accrued right |
Inconsistent pleas | Restricted: Order VI Rule 7 forbids a new ground of claim inconsistent with previous pleadings except by amendment | Permitted more freely: a defendant may take alternative and even inconsistent defences |
Limitation | Central: a time-barred claim introduced by amendment is ordinarily refused because a vested right would be defeated | Rarely decisive, since a defence is not a claim and no period of limitation runs for it |
Changing the nature of the case | An amendment altering the very nature of the suit is refused | A wholly new and inconsistent defence may still be allowed, subject to costs and to the proviso |
Withdrawal of admission | Not permitted as a rule: a clear admission in a pleading confers a valuable right on the other side | Same rule: an admission once made is not withdrawn by amendment save in exceptional circumstances explained on material |
§ Withdrawal of an admission by amendment An admission in a pleading is more than a statement of fact: it relieves the other side of the burden of proving the matter admitted, and so confers on him a valuable right. The general rule is therefore that an amendment seeking to withdraw or explain away a clear admission will not be allowed. The rule is one of practice rather than of jurisdiction. Where the party shows, on material, that the admission was made under a mistake, or was the result of a misunderstanding of facts since discovered, the court may permit the amendment on terms, leaving the evidentiary value of the original admission to be considered at the trial. In an answer, state the general rule first, then the narrow exception with its conditions: the admission must be shown to be mistaken, and the explanation must be supported by material. |
When amendment is refused
i. Where it would cause the other side an injustice not compensable in costs.
ii. Where it would take away a valuable right accrued to the other side, chiefly a limitation defence.
iii. Where it changes the very nature and character of the suit, converting one case into another.
iv. Where the application is mala fide, or is made merely to delay the trial.
v. Where it seeks to withdraw a clear admission, save in the exceptional circumstances described above.
vi. Where the trial has commenced and due diligence is not established, by force of the proviso.
7. Landmark Judgments on Pleadings and Amendment
- Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363. The Cropper v. Smith principle adopted in India: amendments should be allowed, however careless the omission, if they can be made without injustice to the other side.
- Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 SCC 385. The two parts of Rule 17; the test is necessity for determining the real controversy, and the merits of the amended plea are not judged at the amendment stage.
- Vidyabai v. Padmalatha, (2009) 2 SCC 409. The proviso is mandatory; trial commences when the suit is set down for the recording of evidence; due diligence must be shown.
- Revajeetu Builders and Developers v. Narayanaswamy and Sons, (2009) 10 SCC 84. Sets out the factors governing amendment applications, including whether the amendment is necessary for determining the real controversy, whether it causes injustice, whether it is bona fide, and the effect on limitation.
- Order VI Rules 2, 4 and 7. Material facts not evidence; particulars of fraud, misrepresentation, breach of trust, wilful default and undue influence; and the rule against departure.
8. Frequently Asked Questions on Pleadings
What is a pleading under the CPC?
By Order VI Rule 1, a pleading means a plaint or a written statement. Its object is to inform each party of the case he has to meet, to define the issues for the court to frame, and to fix the scope of the trial, since evidence outside the pleadings is irrelevant.
What is the difference between material facts and evidence in pleadings?
Material facts are those the party must prove to succeed, so that their omission leaves the claim or defence incomplete; evidence is the means by which those facts are established. Order VI Rule 2 requires the pleading to state the material facts concisely but not the evidence by which they are to be proved.
Must fraud be pleaded with particulars?
Yes. Order VI Rule 4 requires particulars, with dates and items where necessary, in all cases of misrepresentation, fraud, breach of trust, wilful default and undue influence. A general allegation of fraud without particulars is bad, however emphatically it is made.
Can a party plead inconsistent cases?
A defendant may take alternative and even inconsistent defences, since he may put the plaintiff to proof on every point. A plaintiff may plead in the alternative but not plead mutually destructive facts, and by Order VI Rule 7 no party may raise a new ground of claim or an allegation inconsistent with his previous pleadings except by amendment.
When can pleadings be struck out?
Under Order VI Rule 16, the court may at any stage strike out or amend matter in a pleading that is unnecessary, scandalous, frivolous or vexatious, that tends to prejudice, embarrass or delay the fair trial, or that is otherwise an abuse of the process of the court. The power is directed at matter within a pleading, not at the suit as a whole.
When can pleadings be amended under Order VI Rule 17?
At any stage, in such manner and on such terms as may be just, and all amendments necessary for determining the real questions in controversy must be made. After the trial has commenced, however, no amendment is allowed unless the court concludes that in spite of due diligence the party could not have raised the matter earlier.
When does trial commence for the purposes of the due diligence proviso?
When the suit is set down for the recording of evidence, that is, when the affidavits of examination-in-chief are filed and evidence begins, not on the date of the first hearing: Vidyabai v. Padmalatha.
Can an amendment be refused on the ground of limitation?
Yes. Since an amendment ordinarily relates back to the date of the original pleading, one that introduces a new claim already time-barred is usually refused, because it would defeat a valuable right accrued to the other side. The court may nevertheless allow it in the interests of justice and direct that it operate from the date of the application instead.
Can an admission in a pleading be withdrawn by amendment?
As a rule, no, because a clear admission confers a valuable right on the other side by relieving him of the burden of proof. The court may permit it in exceptional circumstances, where the party shows on material that the admission was made by mistake, leaving the evidentiary value of the original admission to be weighed at the trial.
9. Related Topics in This CPC Series
- Order IV: Institution of Suits and the Register of Civil Suits
- Issue and Service of Summons: Sections 27 to 29 and Order V
- Recognised Agents and Pleaders under Order III
- Order II: Frame of Suit and the Bar under Order II Rule 2