ART OF DRAFTING A PLAINT / PETITIONS - DECISIONS

 

ART OF DRAFTING A PLAINT / PETITIONS - DECISIONS

 

DECISIONS ON PLEADINGS

 

WRITTEN STATEMENT:

 

1. When there is no denial in the written statement, allegation is deemed to be admitted

 

1993 (4) SCC 6 (head note, paras 15, 19)

 

2. Denial in written statement has to be specific as general denial is not sufficient. When there is no denial of signature in written statement, high court committed error in holding handwriting experts should have been examined.

 

2013 (2) SCC 606 (para 17, 18, 22 to 26); 2017 (8) SCC 592 (head note ’b’.

 

ADMISSION IN PLEADINGS:

3. Admission in pleadings or judicial admission stand on higher footing than admission in evidence. Judicial admission are fully binding on a party and constitutes waiver of proof.

 

1974 (1) SCC 242 (para 27)

4. Judicial admission may be made the foundation of rights of parties. 2005 (11) SCC 314 (para 218)

 

5. Admission in plaint can be used against a party in other suits as admission.

AIR1967SC341(para5)

 

PLEADING IN FRAUD:

 

6. Allegations of fraud must be clearly pleaded and proved by clear and cogent evidence.

 

1976 (3) SCC 119 (head note and para 29)

 

7. Specific pleading as to fraud are to be made and proved.

 

2011 (12) SCC 18 (para 62)

 

8. Order 6 Rule 4 CPC provides that where a party relies upon fraud, mis-representation, breach of trust etc., in which particulars are necessary beyond that exemplified in the form and the appendix.

 

AIR 1963 SC 1279 (para 19)

 

NO AMOUNT OF EVIDENCE CAN BE LOOKED IN TO WITHOUT PLEADING:

9. Without pleading, no amount of evidence can be looked into.

 

2008 (8) SCC 92 (para 21, 22) ; 2011 (8) SCC 613 (para 33) 3

 

10. Plea not raised need not be considered.

 

2008 (13) SCC 466 (head note ‘f’)

11. Civil suits are decided on the basis of pleadings and issues framed. Parties cannot be permitted to travel beyond pleadings.

 

2019 (11) SCC 800 (head note ‘A’ & para 11)

12. In the absence of pleading, no amount of evidence will help the party.

 

2020 (10) SCC 729 (para 8)

13. In the absence of pleading, court rightly ignored the statement made by the appellant in the examination in chief that he had made a claim against the respondent on the basis of difference in the price of Reliance shares as on 14.2.1992 and 23.3.1992.

 

2010 (6) SCC 178 (para 33)

14. It is well settled that no amount of evidence contrary to pleadings can be relied on or accepted. When there is variance and divergence between the pleadings and documentary evidence; pleading and oral evidence; and between oral and documentary evidence, the entire case of the respondent is liable to be rejected. The different versions

4

 

 

demonstrates fraud and mis-representation on the part of the respondent.

 

2011 (8) SCC 613 (para 33)

 

PUBLICINTERESTLITIGATION:

 

15. Even in PIL, there cannot be fishing and roving enquiry. Relief not founded on pleading should not be granted.

 

2011 (7) SCC 639 para 8 to 12, 13)

 

NO PRAYER NO RELIEF:

16. Courts cannot grant relief not prayed for.

 

2008 (17) SCC 491 (para 23); 1991 (1) SCC 441 (para 4)

17. In the absence of prayer in the writ petition, no relief can be granted. 2004 (13) SCC 528 (head note)

 

18. Without specific prayer for declaration, relief cannot be granted merely because plaintiff has sought for other relief. [1993 Supp (3) SCC 129 (para 16)].

19. AIR 1962 SC 1161 (para 4, 10, 11)

5 Appropriate relief may be granted due to changed circumstances and because prayer for “any other relief” in petition, relief was granted.

 

NO DECISOIN OUTSIDE PLEADING:

 

20. Court cannot give any decision outside the pleadings.

 

AIR 1953 SC 235 (Para 22)

 

WRIT PETITION:

21. Evidence regarding facts must be pleaded in a writ petition. That is the difference in pleading in a writ and civil proceedings under C.P. Code.

 

1988 (4) SCC 534 (head note & para 13)

22. Ground not taken in writ petition but raised only in arguments – grant of relief is bad.

 

2012 (12) SCC 63 (para 20)

 

 

ELECTION PETITION:

 

23. In an election petition, all basic and primary facts which must be proved at the trial by a party to establish existence of a cause of action or defence are material facts and afford a basis for allegations made in the election petition. Bare allegations are never treated as material facts.

 

2012 (4) SCC 194 (paras 45, 48-57)

 

SPECIFIC PLEA NEEDED TO BE RAISED IN WAIVER:

24. Waiver must be specifically raised in pleading. If not, it cannot be allowed at the stage of hearing.

 

1979 (2) SCC 409 (para 5)

 

JURISDICTIONOFCOURT:

 

25. Jurisdiction of court has to be determined on the basis of plaint averments alone.

 

AIR 1985 SC 577 (head note, para 5)

 

SUPPRESSION/CONCEALMENT:

 

26. Concealment of any fact is as serious as mis-representation.

 

AIR 1938 PC 103 (para 9)

 

DEFAMATION:

 

27. In case of a suit for defamation, it is desirable that actual words spoken are mentioned in the plaint.

AIR 1971 SC 1389 (1394) (head note, para 25)

 

JURISDICTION:

 

28. Injunction sought by pleading wrong facts is liable to be vacated (para 53 – 62). Clarity and candor must be observed in pleadings. (para 58)

 

2011 (7) SCC 69 (para 53 – 62)

29. Perverse order means order in conscious violation of pleadings and law.

 

AIR1977KAR58(headnote‘A’.para10)

30. Interference in cases of perversity can pertain to understanding of law or appreciation of pleading or evidence.

 

2016 (2) SCC 672 (para 5)

 

TRUSTEES:

 

31. Trust is not a juristic person. It is the trustees who are the owners of the property. Therefore, a suit or a petition instituted by President alone is not maintainable unless all trustees are impleaded.

 

ILR 1997 KAR 2460 (J. Dattu) (para 5)

32. Suit has to be filed on behalf of trustees failing which suit is liable to be dismissed.

 

AIR 1973 GUJ 113 (FB) (para 8 and11)

33. While it is true that all trustees must be joined in a suit filed by him where the deed of trust permits one of them to file the suit or where other trustees have given express sanction etc., a suit filed by one of them is permissible.

 

2005 (1) SCC 172 (paras 17, 29)

 

SPECIFIC PERFORMANCE:

34. In a suit for specific performance, readiness and willingness must be expressly averred.

 

2010 (10) SCC 512 (para 23) 9

35. Absence of a plea regarding readiness and willingness is fatal to a suit for specific performance.

 

AIR 1990 SC 682 (head note)

36. Averment in a suit for specific performance must be in terms of Form 47 and 48 of C.P. Code.

 

2004 (7) SCC 251 (head note ‘D’)

 

NOTE:Sec.16(c)ofSpecificReliefAct,priortoitsamendmentintheyear2018,specifiedthattheremustbespecificavermentre.readinessandwillingness.TheabovejudgementbasedonthelanguageofSec.16(c).Theamendmenthasremovedthesameandthereforeasfaraspossiblebeforedraftingapetitionoraplaint,onemusttrytolookuplaw.

 

FOREIGNLAW:

 

37. Foreign law must be pleaded and proved like any other fact.

 

2001 (8) SCC 233 (para 27) 10

 

AUTHORITY TO FILE:

38. Unless by a board resolution an individual director is authorised, he cannot file a suit.

 

2005 (1) SCC 212 (head note, para 11)

39. Unless power is specifically conferred by the Board of Directors, a director cannot file a suit.

 

AIR 1991 DEL 25 (para 24)