Jojy George Koduvath.

Abstract: Why ‘Particulars’ are Insisted in Pleadings

• 1. To give Notice to the other side.  
• 2. To narrow down the controversy.
• 3. To give definiteness to the stance of parties in court.
• 4. Pleadings must be pregnant enough to produce an issue.
• 5. It is Court that draws inference as to ‘abstract’ propositions.
• 6. Pleadings constitute the skeleton that give shape to the case.

Introduction

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

• Rule 1: Pleading: “Pleading” shall mean plaint or written statement.
• Rule 2: Pleading to state material facts and not evidence:
• (1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
• (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
• (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.

Order 6 rule 4 of the Civil Procedure Code stipulates guidelines for precise pleadings. Order 6 Rule 4 CPC reads as under:

• “Rule 4. Particulars to be given where necessary: In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.”

Order VIII Rule 3, 4 and 5 CPC reads as under:

• Rule 3: Denial to be specific: It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
• Rule 4: Evasive denial: Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
• Rule 5: Specific denial: (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :
• Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.
• (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
• (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
• (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.

Under Order 6 rule 4, CPC, vague or general allegations are insufficient in pleading with respect to the matters laid down in this rule_{(f.n. 1)} and it requires ‘full‘ particulars of such matters in pleadings_{(f.n. 2)}.

Why ‘Particulars’ insisted in Pleadings

• 1. To narrow down the controversy to precise issues:
  • Trojan & Co. v. RM. N.N. Nagappa Chettiar : AIR 1953 SC 235; 
  • Ladli Prashad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279;
  • Raruha Singh v. Achal Singh ; Om Prakash Gupta v. Ranbir B. Goyal : AIR 2002 SC 665;
  • Ishwar Dutt v. Land Acquisition Collector: AIR 2005 SC 3165;
  • State of Maharashtra v. Hindustan Construction Company Ltd. : (2010) 4 SCC 518.
  • Kalyan Singh Chouhan v. C.P.Joshi, AIR 2011 SC 1127;
  •  K. Anil Kumar v. Ajith, ILR 2012-4 Ker 632: 2012-4 KLT 545.
• 2. Notice to other side and ‘protect the party charged with improper conduct from being taken by surprise’:
  • Ladli Prashad Jaiswal. v. Karnal Distillery, Co., AIR 1963 SC 1279;
  • Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242.  
• 3. Definiteness to the stance in court. Strictness in pleading ‘material facts’ is adopted in the procedural law also with a view to prevent a party from taking a changed position (from what he had taken at the time of making the pleading) to suit the situation that may be emerged subsequently, and thereby prejudice the other party. And to prevent cases being expanded or grounds being shifted during trial.
  • Bachhaj Nahar v. Nilima Mandal: AIR 2009 SC 1103.
• 4. It is court that draws inference as to ‘abstract’ propositions. Plaint should contain plain facts; not law. Presentation of pleadings in mere ‘abstract’ propositions (like: injury, damages, illegality, trust, bias) is improper. Law requires pleading of “material facts” (rule 2 of Order VI) and “particulars” (rule 4 of Order VI). Facts that lead to such inferences must be pleaded in clear terms; and it is for the court to draw a reasonable inference as to such ‘abstract’ propositions or inferences from the facts pleaded and established. (See pleadings as to mere ‘mala fide‘, without details –
  • M. Sankara-narayanan, IAS v. State of Karnataka. AIR 1993 SC 763,
  • Coal India Ltd. v. Ananta Saha, 2011-5 SCC 142;
• pleadings as to mere ‘consent‘ of a candidate with respect to a corrupt practice, without details –
  • Balan v. Manoharan Master, 1988 (1) KLT 717.
• 5. Pleadings must be pregnant enough to produce an issue on fact or law, and conduct an investigation (if opposite side varies), inasmuch as a bald and general allegation cannot be sufficient to lead to an issue–
  • K.S. Mariyappa v. K.R. Siddalinga Setty, AIR 1989 Kar 425).
• General allegations insufficient to take notice by the court, however strong the allegation is-
  • AIR 1977 SC 615.
• 6. Pleadings constitute the skeleton that give shape to the case. For every motion, including drawing adverse inference for non-production of a document, lack of bonafides etc., the court has to apprise the pleadings–
  • Union of India v. Ibrahim Uddin, (2012) 8 SCC 148).

If no specific pleadings, no evidence can be looked into

In the absence of specific pleadings, no evidence can be looked into in relation thereto.

• Duggi Veera Venkata Gopala Satyanarayana Vs. Sakala Veera Raghavaiah (1987) 1 SCC 254;
• Sri Venkataramana Devaru Vs. State of Mysore & Ors. AIR 1958 SC 255;
• Bhagwati Prasad Vs. Chandramaul, AIR 1966 SC 735
• Gajanan Krishnaji Bapat Vs. Dattaji Raghobaji Meghe (1995) 5 SCC 347;
• Ram Sarup Gupta (Dead) By LRs v/s. Bishim Narain Inter College & Ors : (1987) 2 SCC 555.
• Abubakar Abdul Inamdar Vs. Harun Abdul Inamdar AIR 1996 SC 112,
• Gulabrao Balawantrao Shinde Vs. Chhabubai Balawantrao (2003) 1 SCC 212
• Bondar Singh Vs. Nihal Singh (2003) 4 SCC 161
• M Chandra Vs. M Thangamuthu, AIR 2011 SC 146. 

Plea ‘Arising out of what is alleged‘ or ‘otherwise Apparent’ Sufficient

In Udhav Singh v. Madhav Rao Scindia, (1977) 1 SCC 511, it is observed as under:

• “25…If the plea or ground of defence ‘raises issues of fact not arising out of the plaint’, such plea or ground is likely to take the plaintiff by surprise, and is therefore required to be pleaded. If the plea or ground of defence raises an issue arising out of what is alleged or admitted in the plaint, or is otherwise apparent from the plaint, itself, no question of prejudice or surprise to the plaintiff arises. Nothing in the rule compels the defendant to plead such a ground, not debars him from setting it up at a later stage of the case, particularly when it does not depend on evidence but raises a pure question of law turning on a construction of the plaint.” (Quoted in: Mohammed Abdul Wahid v. Nilofer, 2024-2 SCC 144)

Evidence beyond pleadings

Following are the accepted propositions of law.

• Proof in variance of pleadings cannot be accepted.
• Statement of witness beyond pleadings will not be read in evidence.
• Reference to pleadings first and then to evidence is the rule. (Sujan Singh v. Lalsahab, TK Thommen, J., 1993 JLJ 552)
• Decision of a case cannot be based on grounds outside the pleadings (Trojan and Co. , AIR 1953 SC 235).
• On the failure of a party to prove his case, the Court cannot make out a new case for him. Sheodhari Rai (AIR 1954 SC 758).
• Endorsement of the Sub -Registrar on the sale deed that the vendor has admitted receipt of consideration ‘loses sanctity’ if the vendor has not denied that he made that statement to the Sub-Registrar and his case is that the arrangement was to pay within a stipulated period and if there was default the vendee would execute a sale-deed in vendor’s favour. (Sujan Singh v. Lalsahab, TK Thommen, J., 1993 JLJ 552)

No party should be Permitted to Travel Beyond its Pleading

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

• “6………It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet…. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question.”
• Also See: Syyad Mohammad versus Fateh Bahadur, (1894-95) 22 IA 4 PC; Sidiq Lal Shah v. Saran, 2003(8)SCC 740.

In J.K. Iron & Steel Co. Ltd. Kanpur v. The Iron and Steel Mazdoor Union, Kanpur : AIR 1956 SC 231, our Apex Court held as under:

• “It is not open to the Tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper.”

Issues, and not Pleadings as such, guide in adducing evidence

The court decides the matters on the issues framed. Sitaram v. Radhabai, AIR 1968 SC 534,  Gappu Lal v. Thakur Sripada, (1969)1 SCC 92 , Vishwanath Agarwal v. Sibitribera, 2009(15) SCC 593.

The object of framing of issues is to ascertain the points in dispute and pinpoint the matters for determination by the court. It is also not to surprise the parties at the trial. It is the issues, and not pleadings as such, guide in adducing evidence by the parties.

No Adjudication, If No Issue

In Kalyan Singh Chouhan v.  CP  Joshi, AIR 2011 SC 1127, the Apex Court held that no courts decide a suit on a matter/point on which no issue has been framed. It is to ascertain/shorten the area of dispute and pinpoint the points required to be determined by the court, so that no party at the trial is taken by surprise. The court referred following decisions:

• Sayad Muhammad. v. Fatteh Muhammad20 (1894-95) 22 Ind. App. 4 (PC)
• Raja Bommadevara Venkata v. Raja Bommadevara Bhashya, (1902) 29 Ind. App. 76 (PC);
• Siddik Mohd. Shah v. Saran, AIR 1930 PC 57;
• Sita Ram v. Radha Bai, AIR 1968 SC 535;
• Gappulal v. Thakurji Shriji Dwarkadheeshji, AIR 1969 SC 1291; and
• Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693.

With reference to the following decisions, in Kalyan Singh Chouhan v. CP Joshi, AIR 2011 SC 1127,   it was also pointed out that there may be exceptional cases wherein the parties proceeded to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation thereof by the other side; and in such an eventuality, it would not be permissible for a party to submit that the proceedings stood vitiated. The decisions were the following:

• Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593;
• Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884;
• Kunju Kesavan v. M.M. Philip, AIR 1964 SC 164;
•  Kali Prasad Agarwalla v. M/s. Bharat Coking Coal Ltd., AIR 1989 SC 1530;
• Sayed Akhtar v. Abdul Ahad, (2003) (7) SCC 52; and
• Bhuwan Singh v. Oriental Insurance Co., AIR 2009 SC 2177.

“All other cases in which particulars may be necessary“

Order 6 rule 4 of the CPC enumerates the following:

• misrepresentation,
• fraud,
• breach of trust,
• willful default,
• undue influence and
• “all other cases in which particulars may be necessary”.

Following are the matters that commonly come for consideration of court under the head, “other cases in which particulars may be necessary”:

• Injury,
• Damages,
• Illegality,
• Collusion,
• Victimisation,
• Mala-fides,
• Bias,
• Unconstitutionality,
• trust,
• consent,
• Irregularity.

In short, in pleadings, wherever it is required to make clear ‘abstract’ propositions, it must have been done; otherwise it will be termed ‘vague pleading’.

Illegality

While dealing with a matter pertaining to recount of votes, referring Apex Court decisions_(f.n.3), it was held in Indira Devi v. State of Bihar, 2019-1 Pat LJR 670, that the vague pleadings that illegality was committed while counting the ballot papers and that there were improper acceptance of invalid votes and improper rejection of valid votes, were not sufficient to invoke the jurisdiction of the court.

Kerala High Court, in St.  Marys Orthodox Church v. Thankamani Rajan, 2016-1 Ker LT(SN) 38, while considering the issue as to grant the licence/permission to construct a cemetery it was observed, referring various Supreme court decisions_(f.n.4), as under:

• “36. Therefore, while challenging the decision making process of a public authority, as in the instant case, as to its legality, propriety or reasonableness, it is not sufficient that the averments should be in generalised terms as if the entire decision making process is vitiated by illegality or impropriety, etc. or that none of the legal formalities or official formalities has been complied with by the decision maker, etc. But the factual foundation for such challenge should be cogently and precisely pleaded in the plaint so as to disclose a specific and concrete case as to how the decision has been vitiated by any illegality or impropriety or unreasonableness, etc. Mere pleading in generalised terms that none of the legal procedural formalities have been complied with or that the provisions of statutory formalities have been blatantly violated, etc. will not do and that the pleadings should be precise and cogent as stated above. The essence of fair play in a civil trial demands this aspect. It is only then that the opposite side can be called upon to prepare the defence properly so that they can have reasonable opportunity to frame a defence and plead the averments in their written statement of objections to the plaint accordingly in such civil proceedings. So also, the defendants could then get a reasonable opportunity to know as to the type of evidence that they are called upon to let in, in order to meet the specific allegations and averment in the plaint. In the instant case, there are no specific and concrete pleadings in the plaint that the Municipality has not referred the matter to the District Collector for his approval before the Municipality had taken the impugned decision. So also, there is no pleading or averment in the plaint, in precise and concrete terms, as to the D.M.O. had not conducted any inspection or committed any procedural lapses before making the recommendation to the Municipality. Therefore, it is totally impermissible in law for the plaintiffs to let in any evidence on that aspect of the matter. Even if any evidence has been let in on those aspects of the matter, it is the duty of the court not to take into consideration any such evidence in view of the conclusive legal position settled as stated above. Therefore, on this ground alone, the trial court and the lower appellate court have committed a grave error in holding that the official defendants (statutory authorities concerned) have violated the statutory provisions and that they have not complied with the legal formalities, etc. on the basis of the evidence so let in the instant trial. Therefore, the said finding of both the courts below is tainted by grave error and illegality and is liable to be reversed by this Court.”

Coercion

When collusion is taken as a ground in a case, full particulars thereof are to be pleaded. In Varanaseya Sanskrit Vishwavidyalaya v. Rajkishore Tripathi, AIR 1977 SC 615, invoking Order VI, Rule 4, CPC and referring Bishundeo v. Seogeni Rai, AIR 1951 SC 280, it was held as under:

• “General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influence and coercion.”

Fraud and Collusion

While considering Order VI Rule 4 of CPC in K.S. Mariyappa v. K.R. Siddalinga Setty, AIR 1989 Kar 425, it was observed that in the absence of necessary particulars pleaded by the plaintiffs regarding fraud and collusion, it was not possible to hold that the plaint contains necessary averments as to fraud and collusion. The Court held further as under:

• “Such a bald and general allegation without material particulars in the light of rule 4 of Order 6 of the Code of Civil procedure cannot be held to be sufficient to lead to an issue. Mere general allegation that an act or the deed is vitiated by fraud and collusion is no plea of fraud and collusion. Material particulars such as when and how and who and in what manner and for what purpose the fraud was practised and who colluded with whom and in what manner and with what object or purpose etc., must be averred.” 

Fraud must be pleaded and proved. Without substantiating materials fraud cannot be merely assumed. See: Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy, (2003) 7 SCC 667; Joint Collector Ranga Reddy District v. D. Narsing Rao, (2015) 3 SCC 695.

Charge of Victimisation

Charge of victimisation must not be vague or indefinite. It is an amalgam of facts as well as inferences and attitudes. It is to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough (Bharat Iron Works v. Bhagubhai Balubhai Patel, AIR 1976 SC 98. Referred to in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019 8 SCC 701).

Mala-fides and Bias

In State of Bihar v. P.P. Sharma, JT 1992 (2) SC 147 : 1992 (Suppl. 1) SCC 222 it is held that mere assertion or a vague or bald statement as to mala fides, is not sufficient and that it is well settled that the burden of proving mala fide is on the person making the allegations and the burden is ‘very heavy’ [See also: E.P. Royappa v. State of TN, 1974 (4) SCC 3]. It is also pointed out that there is every presumption in favour of the administration that the power has been exercised bona fide and in good faith; and that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility. Further, the Apex Court referred to  Krishna Iyer, J. in Gulam Mustafa v. State of Maharashtra [1976 (1) SCC 800] where it was stated:

• ‘It (mala fide) is the last refuge of a losing litigant.’ 

In State of M.P. v. Nandlal Jaiswal [JT 1986 (2) SC 701 : 1986 (4) SCC 566], the Supreme Court emphasised the need for furnishing full particulars of allegations suggesting mala fides as under:

• “In the first place it is difficult to appreciate how any such observation could be made by the learned Judge without any foundation for the same being laid in the pleadings. It is true that in the writ petitions the petitioners used words such as ‘mala fide’, ‘corruption’ and ‘corrupt practice’ but the use of such words is not enough. What is necessary is to give full particulars of such allegations and to set out the material facts specifying the particular person against whom such allegations are made so that he may have an opportunity of controverting such allegations.”

Malafides – Vague general allegations are not sufficient. (2018(2) KLT 236).

Insufficient Pleadings – No Investigation

In Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280: 1951 SCR 548, it was observed as under:

• “… In cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be and the same applies to undue influence and coercion.” : Quoted in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019-8 SCC 701).

In Smt. Swaran Lata v. Union of India [(1979) 3 SCC 165], the Apex Court held that in the absence of particulars, the Court would be justified in refusing to conduct an investigation into the allegations of malafides. The court said:

• “In our view, the allegations in the writ petition are not sufficient to constitute an averment of mala fides or bias on the part of either the Chandigarh Administration or, in particular, against Dr. 0. S. Sehgal sufficient to vitiate the appointment of respondent 6. No mala fides as such are imputed against the Union Public Service Commission. The court would be justified in refusing to carry on investigation into allegations of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition. The burden of establishing mala fides lies very heavily on the person who alleges. …. The appellant further averred that she had, in her representation dated 1/05/1975, alleged that after the interview she had overheard Dr. 0. S. Sehgal talking to the third lady member, saying as to ‘how they could take this lady’, meaning the appellant, ‘as the Principal’ and, therefore, she felt that she was a victim of the machination of Dr. Sehgal. There is nothing on record to substantiate such general and vague allegations of the appellant as to mala fides or bias on the part of Dr. Sehgal.”

Referring above decisions, in Mutha Associates v. State of Maharashtra, (2013) 14 SCC 304: 2013-2 Ker LT 1103, the Apex Court observed as under:

• “39. The law regarding pleading and proof of ‘malice in fact’ or mala-fides as it is in common parlance described is indeed settled by a long line of decisions of this Court. The decisions broadly recognise the requirement of allegations suggesting “malice in fact” to be specific and supported by necessary particulars. Vague and general averments to the effect that the action under review was taken mala-fide would not therefore suffice. Equally well settled is the principle that the burden to establish that the action under challenge was indeed mala-fide rests heavily upon the person making the charge; which is taken as quasi criminal in nature and can lead to adverse consequence for the person who is proved to have acted mala-fide. There is in fact a presumption that the public authority acted bona-fide and in good faith. That presumption can no doubt be rebutted by the person making the charge but only on cogent and satisfactory proof whether direct or circumstantial or on admitted facts that may support an inference that the action lacked bona-fides and was for that reason vitiated. The third principle equally sanctified by judicial pronouncements is that the person against whom the charge is made must be impleaded as a party to the proceedings and given an opportunity to refute the charge against him.”
• “45. The charge of malafides levelled against the appellant, Mr. Rane, the then Minister was not supported by any particulars. The writ petition filed by APMC did not provide specific particulars or details of how the decision taken by minister was influenced by Mutha Associates or by any other person for that matter. The averments made in the writ petition in that regard appeared to be general and inferential in nature. Such allegations were, in our opinion, insufficient to hold the charge of ‘malice in fact’ levelled against the minister proved.”

In Ratnagiri Gas & Power Pvt.  Ltd.  v. RDS Projects Ltd., AIR 2013  SC  200; 2013-1 SCC 524 the Apex Court, pointing out the requirement of assertions in the writ petition and the presence of the officers concerned, held as under:

•  “The law casts a heavy burden on the person alleging mala fides to prove the same on the basis of facts that are either admitted or satisfactorily established and/or logical inferences deducible from the same. This is particularly so when the petitioner alleges malice in fact in which event it is obligatory for the person making any such allegation to furnish particulars that would prove mala fides on the part of the decision maker. Vague and general allegations unsupported by the requisite particulars do not provide a sound basis for the court to conduct an inquiry into their veracity.”

In Kamalakanta Mohapatra Vs. Pratap Chandra Mohapatra, AIR 2010 Ori 13, it is held as under:

• The words “undue influence”, “fraud” and “misrepresentation” are cognate vices and may in part overlap in some cases, they are in law distinct categories and in view of Order 6, Rule 4 read with Order 6, Rule 2 of the Code of Civil Procedure required to be separately pleaded, with specificity, particularity and precision. In other words general allegations made in the plaint does not tantamount to particulars required to be pleaded under the said provision of the Code. The Constitution Bench of the Supreme Court in the case of Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd. Karnal, reported in AIR 1963 SC 1279 observed that under Order 6, Rule 4 of the Code of Civil Procedure, in all cases where a party takes a plea of undue influence, particulars thereof should be unambiguously stated in the pleadings so as to enable the adversary to controvert the same. A vague and general plea to that effect would not serve the purpose and the pleading must be always very specific and precise in nature. This rule has been evolved with a view to narrow down the controversy and protect the party charged with improper conduct from being taken by surprise.
• In the case of Afsar Shaikh v. Soleman Bibi, reported in AIR 1976 SC 163, the Supreme Court has reiterated the same principle and had clearly held that in a case where there are allegations with regard to fraud, undue influence and misrepresentation the said allegation/facts must be specifically indicated in the pleadings. Keeping in mind the provision of Order 6, Rule 4 of the Code of Civil Procedure, if the averments made in the plaint are examined it reveals that the basic requirement of Order 6, Rule 4 of the Code of Civil Procedure was not kept in mind while making the allegations and the same appear to be more on the basis of surmises and conjectures rather than cogent facts.
• So far as the nature of proof of undue influence, fraud or misrepresentation are concerned in he case of Balabhadra Nisanka v. Suka Dibya, reported in 38 (1972) CLT 325, it was held by this Court that ‘fraud’ in a civil proceeding must be established beyond reasonable doubt as in a criminal proceeding. So far as the evidence to establish fraud is concerned, it is held by this Court in the case of Bira Jena v. Tauli Dei, respondent in 38 (1972) CLT 39 : (AIR 1972 Ori 143) that unless the particulars of fraud are pleaded in the plaint, no evidence should be allowed to be led in the suit and if any such evidence has unwittingly been introduced without any pleading, it must be ruled out of consideration. In other words, the standard of proof to establish fraud should be beyond all reasonable doubt. After discussing the evidence threadbare the appellate Court had clearly come to a conclusion that the same does not satisfy the basic requirement of mandatory requirement of law. Even otherwise in the absence of pleadings, the evidence adduced had to be ignored.”

In Balan v. Manoharan Master, 1988 (1) KLT 717, where a candidate said to have ‘consented’ a ‘corrupt practice’, it is held that without the objectionable part of the speech of the candidate being made available in pleading, proof in that respect was not possible.

Concise Statement of Material Facts – Explained

Order VI rule 2 reads as under:

• “2: Pleading to state material facts and not evidence:
• (1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.”

AS Anand, J. in Mohd.  Sadiq v. Rafiq Hussain Khan, 1978 JKLR 580, explained what is concise statement of material facts, as under:

• “Assuming, that the petitioner could not give all the necessary details, as noticed earlier, nothing could have stopped him from giving at least the total number of votes which were either illegally accepted or illegally rejected or from stating as to why he considered the rejection or acceptance of any particular ballot paper to be illegal. In the absence of such particulars, in the petition, the allegations made in the petition are general and vague. Merely stating “a number of void votes” were counted in favour of the returned candidate or that “a number of valid votes” polled for the petitioner were illegally rejected, does not satisfy the requirements of given a concise statement of material facts in the petition and no order of recount can be made on the basis of such vague pleas.”

Damages: Issue will be framed, without denial

As shown above, Order VIII Rule 3 gives an exemption to strict ‘denial’ with regard to the claim of ‘damages’. Why? J. B. Ross v. C. R. Screven, AIR 1917 Cal 269 explained as under:

• “(O. 8, R 3, CPC) puts the burden on the plaintiff, whether or not the defendant denies in such a case an issue is necessary.” (Quoted in – Indore Malwa United Mills Ltd.  Vs Ramkaran Ghisslal, AIR 1963 MP197. Also see: W.  Jaya-raghavan v. The Leo Films, 1948 61 LW 173; 1948 1 MLJ 209)

In Fateh Chand Vs. Balkishan, AIR 1963 SC 1405, it was observed that the ‘Legislature has sought to cut across the web of rules and presumptions under the English common law’ with regard to the compensation to be awarded in case of breach of contract. Section 74 speaks as to ‘reasonable’ compensation. It is pointed out that this proposition as to ‘reasonable’ compensation, and thereby the intervention of court to fix the reasonable amount, laid down in Section 74, is a deliberate deviation from the English Common Law which allows forfeiture of genuine pre-estimated damages, by the affected party.

Damages (in general) are of three kinds

• First, nominal
• Second, general damages
• Third, special damages.

Read Blog: Law on Damages in Defamation Cases

General Damages can be Awarded if failed to prove Special Damages

Court may, in proper cases, award ‘general damages’ even if the plaintiff failed to prove Special Damages; because, general damages need not be pleaded specifically, inasmuch as law will presume, without direct proof, the natural or probable consequence of an illegal or improper act. (Minor Veeran Vs. T. V. Krishna-moorthy, AIR 1966 Ker 172. Quoted with approval a passage from Law of Pleadings by Mogha.)

It was held by the Supreme Court of India in Maula Bux Vs. Union of India AIR 1970 SC 1955, that ‘forfeiture of earnest money under a contract for sale of property, if the amount is reasonable, does not fall within Section 74’. That is, when the forfeiture clause in a contract refers to a nominal (thereby reasonable) sum alone, as earnest money, it does not provide for an ‘amount to be paid in case of such breach’, or amount to imposing a penalty.  In such cases of forfeiture of reasonable (nominal) earnest money, it is immaterial ‘whether or not actual damage or loss is proved’.

Proper parties must be before the court

In All India State Bank Officers’ Federation v. Union of India: (1997) 9 SCC 151 it is observed as under:

• “22. There is yet another reason why this contention of the Petitioners must fail. It is now settled law that the person against whom mala fides are alleged must be made a party to the proceeding. … Neither the Chairman nor the Directors, who were present in the said meeting, have been impleaded as Respondents. This being so the Petitioners cannot be allowed to raise the allegations of mala fides, which allegations, in fact, are without merit.”

Adverse inference for non-production (by the Other Party), only on considering pleadings

Generally, it is the duty of the party to lead the best evidence in his possession even though onus of proof do not lie on him, and he is not called upon to produce the said evidence; and the Court will draw adverse inference under Section 114(g) of the Evidence Act if such evidence is withheld. But this rule cannot be applied blindly. Mere non-production of documents would not result in adverse inference, invariably. It is held in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 _(f.n.5), as under:

• “16. Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance.”

Parties to plead facts, not Law; Court takes ‘inferences‘

Plaint should contain plain facts; not law. In M. Sankaranarayanan, IAS v. State of Karnataka. AIR 1993 SC 763, the Apex Court observed that the Court may ‘draw a reasonable inference of mala fide from the facts pleaded and established’ (It is quoted in Coal India Ltd. v. Ananta Saha, (2011) 5 SCC 142).

In E.P. Royappa v. State of T.N. [1974 (4) SCC 3], the Apex Court held as under:

• “The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration.”

Kerala High Court, in Balan v. Manoharan Master, 1988 (1) KLT 717, it is observed (in a case where the candidate in an election said to have ‘consented‘ a ‘corrupt practice’) as under:

• “On a material fact the petitioner cannot request the court to make an inference without supporting pleading. When pleading is absent proof is also not possible. Without the objectionable portions of the speeches being made available proof in that respect is also not possible.”

Order VI Rule 4 of CPC requires pleading with specificity, particularity and precision

In Ranganayakamma v. K.S. Prakash: AIR 2005 Kar 426; 2006 (3) Kar. L.J. 177, it is observed (relying on Kanchawwa v. Amagonda, AIR 2003 Kar. 434) that Order VI Rule 4 of Code of Civil Procedure is of a distinct category in law, requiring pleading with specificity, particularity and precision. It is pointed out that general allegations – using the words “fraud” and “misrepresentation” etc. – will not be sufficient; it should be shown – how fraud was played and misrepresentation occasioned. (Referred to in: K. V. Shivakumar v. National Institute of Mental Health And Neuro Sciences, 2016-4 AIR Kar R 754; ILR 2016 Kar 3114)

Undue Influence: Simple Pleading by Plaintiff may cast Burden on Defendant

In Chandrika Babu v. Sudhakaran, 2013 4 KLT(SN) 103 it is pointed out that the Apex Court’s judgment in Joseph John Peter Sandy’s case, AIR 2013  SC 2028; (2013) 3 SCC 801, would show that the required materials should be placed before the court in support of the plea to draw an inference of undue influence.

Even if a person is in a fiduciary relationship with another and his conduct in looking after the other in old age may have influenced the thinking of the other, that per se cannot lead to the only irresistible conclusion that the person was therefore in a position to dominate the will of the deceased. The onus would shift  only after the plaintiff would have established a prima-facie case under Section 16 of the Contract Act read with Section 111 of the Evidence Act (Anil Rishi v. Gurbaksh Singh,  AIR 2006  SC 1971; (2006) 5 SCC 558: referred to in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019-8 SCC 701).

In Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib, AIR 1967 SC 878; 1967 (1) SCR 331, it was observed that there was no presumption of imposition merely because a donor was old and weak. Mere close relation also was insufficient to presume undue influence.  Influence and undue influence were distinguished in this decision as under:

• “It must also be noted that merely because the parties were nearly related to each other no presumption of undue influence can arise. As was pointed out by the Judicial Committee of the Privy Council in Poosathurai v. Kappanna Chettiar,  (1919) 47 IA 1, AIR 1920 PC 65.
• “It is a mistake (of which there are a good many traces in these proceedings) to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice and the other was in a position to dominate the will of the first in giving it. Up to that point “influence” alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, undue.”
• “Before, however, a court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6, Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279; (1964) 1 SCR 270 above referred to. In that case it was observed (at p. 295):
• “A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence and the unfair advantage obtained by the other.”

(Quoted in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019-8 SCC 701)

In Krishna Mohan Kul @ Nani Charal Kul v. Pratima Maity, AIR 2003 SC 4351;  2004 KHC 903 (SC), the Supreme Court held as under:

• “When fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the letter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of the proving the good faith of the transaction is thrown upon the dominant, party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position.
• This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 …. …..”When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the Court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donors will….
• 15. The corollary to that principle is contained in Clause (3) of Section 16 of the Indian Contract Act, 1872 (in short Contract Act).

In a subsequent decision in Raja Ram v. Jai Prakash Singh,  AIR 2019 SC 4374; 2019-8 SCC 701 the Apex Court distinguished Krishna Mohan (supra) on fact that the executant in that case was indisputably over 100 years of age, witnesses to the document were ‘not in existence’ and the witnesses proved that he was paralytic and virtually bedridden; and none of the witnesses could substantiate that the executant had put his thumb impression.

Pleading in Invalidation of a Statute

In Assam State Electricity Board v. Bharat Hydro Power Corporation Ltd., 1999-1 Gau LJ  142, 1999-1 Gau LR 249, the importance of pleading in invalidation of a statute was considered. It was held that he pleading must be specific and not vague. It is pointed out that if the pleadings were vague, the Court should not consider the alleged allegation regarding violation of the constitutional or other provisions. The following decisions were referred to:

• 1. Amrit Banaspati Company Limited Vs. UOI, (1995) 3 SCC 335;
• 2. The III Income Tax Officer, Mangalore  Vs M. Damodar Bhat, AIR 1969 SC 408,
• 3. The Municipal Board Maunath Bhanjan v.  Swadeshi Cotton Mills,  U.J (SC) 1977 P. 180
• 4. S.R. Tewari v.  The District Board, Agra, AIR 1964 SC 1680.
• 5. The Hamdard Dcnvakhana (Wakf) Delhi v. The Union of India, AIR 1965 SC 1167
• 6. M/s. Motilal Padampat Sugar Mills . v.  The State of UP, AIR 1979 SC 621  
• 7. Narendra Bahadur Singh v.  State of U.P., AIR 1977 SC 660  
• 8. Bharat Singh  V.  State of Haryana, AIR 1988 SC 2181  
• 9. M.K. Balakrishna Menon v.  The Assistant Controller of Estate Duty, AIR 1971 SC 2392
• 10. Ratanlal Nath and Ors. V.  State of Tripura, 1997 (III) GIT (SC) 8

Substantial justice should be preferred as against technicalities

In Management, ICICI Bank Limited v. Presiding Officer, Central Government Industrial Tribunal cum Labour Court, 2020-2 LLJ 453, it was observed by the Madras High Court  that the substantial justice should be preferred as against technicalities in law. It was pointed out that the Court, while exercising extraordinary jurisdiction under Article 226 of the Constitution it was not only acting as a Court of law but also as Court of justice. It is further held that when the Court finds that substantial justice is not done to a party in a particular case, it can extend its arms and do slight tinkering of law, of course, without damaging its scope and object, for the purpose of moulding the relief and to meet the ends of justice. The Madras High Court relied on the Apex Court decision in a civil suit relating to adoption in Laxmibai v. Bhagwantbuva, 2013 (4) SCC 97, where it was observed as follows:

• “When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred and the courts may in the larger interests of administration of justice may excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to the parties and pass orders which will serve the interest of justice best.”

(This decision is referred to in MRF Limited v. Ministry of Corporate Affairs, 2018-2 CTC 353 and Arun Mondal v. Director, Directorate of Health Services, AIR 2016 Cal 141.)

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See Blog: PLEADINGS IN ELECTION MATTERS

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Foot Notes:

1. Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280; Ladli Prashad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279; Subhash Chandra Das v. Ganga Parsad Das, AIR 1967 SC 878; Varanasaya Sanskrit Vishwavidalaya v. Dr. Raj Kishore Tripathi, AIR 1977 SC 615; Jai Parkash Power Ventures v. State of HP, ILR 2017-6 HP 210.
2. Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280;  Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; Ladli Prasad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279.
3. Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249, Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773, Beliram Bhalaik v. Jai Beharilal Khachi, (1975) 4 SCC 417, Suresh Prasad Yadav v. Jai Prakash Mishra, (1975) 4 SCC 822, Bhabhi v. Sheo Govind, (1976) 1 SCC 687, S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, (1980) Supp1 SCC 53,  P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen, (1989) 1 SCC 526, Vadivelu v. Sundaram, (2000) 8 SCC 355, VS Achuthanandan v. P J  Francis (2001) 3 SCC 81, andM. Chinnasamy v. K. C. Palanisamy, (2003) 10 SCALE 103.
4. M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235;  Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242; Om Prakash Gupta v. Ranbir B. Goyal, AIR 2002 SC 665; Ishwar Dutt v. L.A Collector, AIR 2005 SC 3165; State of Maharashtra v. Hindustan Construction Co., AIR 2010 SC 1299; Kalyan Singh Chouhan v. C.P. Joshi, AIR 2011 SC 1127; Bachhaj Nahar v. Nilima Mandal, AIR 2009 SC 1103; Union of India v. Ibrahim Uddin, 2012 (3) KLT SN 73 SC; (2012) 8 SCC 148.
5. In Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, the Apex Court considered the following decisions: Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96; Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das, AIR 1967 SC 256; Smt. Indira Kaur v. Shri Sheo Lal Kapoor, AIR 1988 SC 1074; Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy, AIR 2003 SC 3342, Mohinder Kaur v. Kusam Anand, (2000) 4 SCC 214; Takhaji Hiraji v. Thakore Kubersing Chamansing, AIR 2001 SC 2328; Municipal Corporation, Faridabad v. Siri Niwas, AIR 2004 SC 4681; A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534; R.M. Yellatti v. Assistant Executive Engineer AIR 2006 SC 355; Pratap Singh v. State of M.P., AIR 2006 SC 514; Ramrati Kuer v. Dwarika Prasad Singh, AIR 1967 SC 1134, Ravi Yashwant Bhoir v. District Collector, Raigad, AIR 2012 SC 1339.

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