- Bachhaj Nahar vs. Nilima Mandal & Another [(2008) 17 Supreme Court Cases 491]
Facts:
The plaintiffs[1] filed a suit seeking a declaration that they were owners of the suit property and that the defendants had encroached upon it. The plaintiffs also sought possession and an injunction. The Trial Court decreed the suit in part – holding that the suit property belonged to the plaintiffs and, defendant no. 1 had encroached on it to the extent of 15 sq. ft.
The defendants preferred a first appeal, wherein the Court held that the plaintiffs had failed to prove their title over the suit property. In the second appeal preferred by the plaintiffs, the High Court (“HC”) held that the plaintiffs had failed to make out their title but, had made out a ground for reliefs based on easementary rights.
The HC held that although there was no pleading or issue relating to an easementary right, the evidence was sufficient to make out a case of easementary rights over the suit property.
Aggrieved by the HC’s decision, the defendants preferred an appeal before the Supreme Court (“Court”).
The Court’s specific observations:
The HC had ignored that the right of easement had not been pleaded or claimed by the plaintiffs; the parties were only at issue regarding title and possession. Despite this, the HC made out a case for easement – for the first time in appeal – and granted reliefs based on such easementary rights. To this end, the HC relied on Nedunuri Kameswaramma vs. Sampati Subba Rao (AIR 1963 SC 884)[2] and held that the evidence in the present case was sufficient to grant a relief based on easement rights.
In doing so, the HC had breached the following rules of civil procedure:
- No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from pleadings and which was not the subject matter of an issue, cannot be decided by the Court.
- A Court cannot make out a case not pleaded. The Court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.
- A factual issue cannot be raised or considered for the first time in a second appeal.
Nedunuri Kameswaramma’s case was distinguishable since the observations therein were made in the context of absence of an issue and not absence of pleadings.The principles governing absence of pleadings and when such absence could be ignored, are found in Bhagwati Prasad vs. Chandramaul (AIR 1966 SC 735) and Ram Sarup Gupta vs. Bishun Narain Inter College (AIR 1987 SC 1242).
Briefly put, those judgments dictate that although evidence produced by a party in absence of a pleading cannot be considered and, although it is well settled that a party should not be permitted to travel beyond its pleadings, a liberal construction must be accorded. Reason being, sometimes, pleadings are expressed in words which may not make out a case in accordance with the strict interpretation of law. All the same, if it is found that despite the deficiency in pleadings, the parties knew each-others’ case and proceeded to trial on those issues by producing evidence, it would not be open to a party to raise the question of absence of pleadings in appeal. The substance of the pleadings, and not their form, is to be looked at.
The object of pleadings:
The Code of Civil Procedure, 1908 (“Code”) is an elaborate codification of the principles of natural justice to be applied to civil litigation and, the object and purpose of pleadings and issues is to ensure that:
- Parties come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial; and,
- Each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the Court for its consideration.
- Issues are then framed, to identify from pleadings, the questions or points required to be determined by the courts, to enable the parties to let in evidence thereon. And when facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of parties, or its own attention on that claim or relief by framing an appropriate issue.
The real test:
The question is not whether there is some material based on which a relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the Court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to a miscarriage of justice. Thus, it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.
Caution against misuse of principles of Bhagwati Prasad and Ram Sarup Gupta:
The principles laid down in Bhagwati Prasad and Ram Sarup Gupta cannot be construed as diluting the well-settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. The Court also recognized that when one of the parties raises a case not specifically pleaded, at the stage of arguments, by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and led evidence, the Court may be permitted to consider a fact not specifically pleaded. But in no circumstance can a court, suo motu, make out a case which was neither contended by any party nor pleaded.
Application of the above to the present case:
In this case, the plaint showed that the entire case of the plaintiffs was that they were the owners of the suit property and that the first defendant had encroached upon it. No plea of easementary rights had been raised; not even an alternate plea.
Facts to be pleaded and proved to establish title are different from facts to be pleaded and proved for making out easementary rights. And the facts to be pleaded and proved to establish easementary rights by grant, prescription and, necessity are also vastly different. Another important facet is that a suit for declaration for easementary rights could not be decreed in the absence of the servient owner as a defendant. And since the HC held that the defendants were not owners of the suit property, it was inconceivable how it could have granted a declaration of easementary right in absence of the servient owner.
Ratio:
- The notion that it is for the court, as a matter of law, to decide the relief that should be granted – and that when the plaintiff sets forth facts and makes a prayer, he is only suggesting what the relief should be – is incorrect. Though such observations may be appropriate in writ proceedings or in a civil suit while proposing to grant as relief, a lesser or smaller version of what is claimed, it is incorrect to hold that a civil court may grant any relief it deems fit, ignoring the prayer. Prayer apart, in civil suits, the grant of relief is circumscribed by various factors such as court fee, limitation, parties, res judicata, estoppel, acquiescence, non-joinder of causes of action – all of which require distinct pleadings and proof – which determine the jurisdiction of a civil court to grant a particular relief.
- In determining whether a failure to plead a particular fact can be ignored to grant a relief not prayed for or grant a relief which does not flow from the cause of action alleged, the test is not whether there is some material based on which a relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the Court could not be granted.
Takeaway:
Given that a party is permitted to take alternate (but not mutually destructive) pleas, it is most advisable to plead all facts in support of one’s case since if these facts are omitted, and are then found to be material, no amount of evidence led in their support can come to one’s rescue. This, of course, can be overcome by obtaining leave to subsequently amend the pleadings by an application under Order VI Rule 17 of the Code. However, amendments have their own downsides: prolongation of the trial, imposition of costs and, the possibility of leave not being granted.
All the same, a caveat which is arguably the most important rule of pleading, is in order:
If you can prove it, plead it; if you can’t, don’t.
[1] Respondents before the S.C.
[2] This was a case where the Court was required to adjudicate if failure to frame an issue on whether the land in question was Inam land and whether there was valid resumption and a valid re-grant, led to a mistrial.
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