CIVIL APPEAL NOS. 69-70 OF 2012
Ashraf Kokkur vs K.V. Abdul Khader Etc. decided on 29.08.2014 from
http://judis.nic.in/supremecourt/imgs1.aspx?filename=41853
http://judis.nic.in/supremecourt/imgs1.aspx?filename=41853
Legal Principle :
1. The pleadings, if taken as a whole, required to clearly show that they constitute the material facts so as to pose a triable issue. The expression ‘material facts’ plainly means facts pertaining to the subject matter and which are relied on by the petitioner.
2. the inquiry under Order VII Rule 11(a) of CPC is only as to whether the facts as pleaded disclose a cause of action and not complete cause of action.
Apex court referred to para 16 in V.S. Achuthanandan vs P.J. Francis (1999) 3 SCC 737
“16. … So long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are generally more known than clearly understood. …”
xxx xxx xxx
“… the failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars. …”
Reference was made to Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express, (2006) 3 SCC 100
Apex court referred to para 16 in V.S. Achuthanandan vs P.J. Francis (1999) 3 SCC 737
xxx xxx xxx
“… the failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars. …”
Reference was made to Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express, (2006) 3 SCC 100
“12. … The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases
where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint.”
It is apt to mention here what constitutes material facts. Reference is made to :
Harkirat Singh vs Amrinder Singh (2005) 13 SCC 511 -
The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.
.... A distinction between 'material facts' and 'particulars', however, must not be overlooked. 'Material facts' are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. 'Particulars', on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial and would not take the opposite party by surprise. All 'material facts' must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.
Apex court qouted from Halsbury's Laws of England, (4th edn.); Vol.36; para 38 :
"The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs. This function has been variously stated, namely either to limit the generality of the allegations in the pleadings, or to define the issues which have to be tried and for which discovery is required. Each party is entitled to know the case that is intended to be made against him at the trial, and to have such particulars of his opponent's case as will prevent him from being taken by surprise. Particulars enable the other party to decide what evidence he ought to be prepared with and to prepare for the trial. A party is bound by the facts included in the particulars, and he may not rely on any other facts at the trial without obtaining the leave of the court."
Virender Nath Gautam vs Satpal Singh & Ors (2007) 3 SCC 617 :
...What are required to be stated in the petition are material facts to maintain the petition. There is distinction between facta probanda (the facts required to be proved, i.e. material facts) and facta probantia (the facts by means of which they are proved, i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue.
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