The relevant principle relating to circumstances in which
the deficiency in, or absence of, pleadings could be ignored,
was stated by a Constitution Bench of this Court in
Bhagwati Prasad v. Chandramaul:
“10. … If a plea is not specifically made and yet it is
covered by an issue by implication, and the parties knew
that the said plea was involved in the trial, then the mere
fact that the plea was not expressly taken in the
pleadings would not necessarily disentitle a party from
relying upon it if it is satisfactorily proved by evidence.
The general rule no doubt is that the relief should be
founded on pleadings made by the parties. But where the
substantial matters relating to the title of both parties to
the suit are touched, though indirectly or even obscurely,
in the issues, and evidence has been led about them,
then the argument that a particular matter was not
expressly taken in the pleadings would be purely formal
and technical and cannot succeed in every case. What the
Court has to consider in dealing with such an objection
is: did the parties know that the matter in question was
involved in the trial, and did they lead evidence about it? If
it appears that the parties did not know that the matter
was in issue at the trial and one of them has had no
opportunity to lead evidence in respect of it, that
undoubtedly would be a different matter. To allow one
party to rely upon a matter in respect of which the other
party did not lead evidence and has had no opportunity to
lead evidence, would introduce considerations of prejudice,
and in doing justice to one party, the Court cannot do
injustice to another.”
(emphasis supplied)
16. The principle was reiterated by this Court in Ram Sarup
Gupta v. Bishun Narain Inter College:
“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 order to have a fair trial it
is imperative that the party should settle the essential
material facts so that other party may not be taken by
surprise. The pleadings however should receive a liberal
construction; no pedantic approach should be adopted to
defeat justice on hair-splitting technicalities. Sometimes,
pleadings are expressed in words which may not
expressly make out a case in accordance with strict
interpretation of law. In such a case it is the duty of the
court to ascertain the substance of the pleadings to
determine the question. It is not desirable to place undue
emphasis on form, instead the substance of the pleadings
should be considered. Whenever the question about lack
of pleading is raised the enquiry should not be so much
about the form of the pleadings; instead the court must
find out whether in substance the parties knew the case
and the issues upon which they went to trial. Once it is
found that in spite of deficiency in the pleadings parties
knew the case and they proceeded to trial on those issues
by producing evidence, in that event it would not be open
to a party to raise the question of absence of pleadings in
appeal.”
(emphasis supplied)
17. It is thus clear that a case not specifically pleaded can be
considered by the court only where the pleadings in
substance, though not in specific terms, contain the
necessary averments to make out a particular case and the
issues framed also generally cover the question involved and
the parties proceed on the basis that such case was at issue
and had led evidence thereon. As the very requirements
indicate, this should be only in exceptional cases where the
court is fully satisfied that the pleadings and issues
generally cover the case subsequently put forward and that
the parties being conscious of the issue, had led evidence on
such issue. But where the court is not satisfied that such
case was at issue, the question of resorting to the exception
to the general rule does not arise. The principles laid down
in Bhagwati Prasad and Ram Sarup Gupta referred to above
and several other decisions of this Court following the same
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.
Another aspect to be noticed, is that the court can consider
such a case not specifically pleaded, only when one of the
parties raises the same 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 had led evidence on that case. Where neither
party puts forth such a contention, the court cannot
obviously make out such a case not pleaded, suo motu”.
the deficiency in, or absence of, pleadings could be ignored,
was stated by a Constitution Bench of this Court in
Bhagwati Prasad v. Chandramaul:
“10. … If a plea is not specifically made and yet it is
covered by an issue by implication, and the parties knew
that the said plea was involved in the trial, then the mere
fact that the plea was not expressly taken in the
pleadings would not necessarily disentitle a party from
relying upon it if it is satisfactorily proved by evidence.
The general rule no doubt is that the relief should be
founded on pleadings made by the parties. But where the
substantial matters relating to the title of both parties to
the suit are touched, though indirectly or even obscurely,
in the issues, and evidence has been led about them,
then the argument that a particular matter was not
expressly taken in the pleadings would be purely formal
and technical and cannot succeed in every case. What the
Court has to consider in dealing with such an objection
is: did the parties know that the matter in question was
involved in the trial, and did they lead evidence about it? If
it appears that the parties did not know that the matter
was in issue at the trial and one of them has had no
opportunity to lead evidence in respect of it, that
undoubtedly would be a different matter. To allow one
party to rely upon a matter in respect of which the other
party did not lead evidence and has had no opportunity to
lead evidence, would introduce considerations of prejudice,
and in doing justice to one party, the Court cannot do
injustice to another.”
(emphasis supplied)
16. The principle was reiterated by this Court in Ram Sarup
Gupta v. Bishun Narain Inter College:
“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 order to have a fair trial it
is imperative that the party should settle the essential
material facts so that other party may not be taken by
surprise. The pleadings however should receive a liberal
construction; no pedantic approach should be adopted to
defeat justice on hair-splitting technicalities. Sometimes,
pleadings are expressed in words which may not
expressly make out a case in accordance with strict
interpretation of law. In such a case it is the duty of the
court to ascertain the substance of the pleadings to
determine the question. It is not desirable to place undue
emphasis on form, instead the substance of the pleadings
should be considered. Whenever the question about lack
of pleading is raised the enquiry should not be so much
about the form of the pleadings; instead the court must
find out whether in substance the parties knew the case
and the issues upon which they went to trial. Once it is
found that in spite of deficiency in the pleadings parties
knew the case and they proceeded to trial on those issues
by producing evidence, in that event it would not be open
to a party to raise the question of absence of pleadings in
appeal.”
(emphasis supplied)
17. It is thus clear that a case not specifically pleaded can be
considered by the court only where the pleadings in
substance, though not in specific terms, contain the
necessary averments to make out a particular case and the
issues framed also generally cover the question involved and
the parties proceed on the basis that such case was at issue
and had led evidence thereon. As the very requirements
indicate, this should be only in exceptional cases where the
court is fully satisfied that the pleadings and issues
generally cover the case subsequently put forward and that
the parties being conscious of the issue, had led evidence on
such issue. But where the court is not satisfied that such
case was at issue, the question of resorting to the exception
to the general rule does not arise. The principles laid down
in Bhagwati Prasad and Ram Sarup Gupta referred to above
and several other decisions of this Court following the same
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.
Another aspect to be noticed, is that the court can consider
such a case not specifically pleaded, only when one of the
parties raises the same 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 had led evidence on that case. Where neither
party puts forth such a contention, the court cannot
obviously make out such a case not pleaded, suo motu”.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1148 OF 2010
Nandkishore Lalbhai Mehta .... Appellant(s)
Versus
New Era Fabrics Pvt. Ltd. & Ors. .... Respondent(s)
WITH
CIVIL APPEAL NOs. 1131-1132 OF 2010
Citation;(2015) 9 SCC 755
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1148 OF 2010
Nandkishore Lalbhai Mehta .... Appellant(s)
Versus
New Era Fabrics Pvt. Ltd. & Ors. .... Respondent(s)
WITH
CIVIL APPEAL NOs. 1131-1132 OF 2010
Citation;(2015) 9 SCC 755
Read full judgment here; click here
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