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NewDefendant (None)     18 March 2010

Admissibility of evidence not pleaded in Plaint?


Could you please advise whether a Plaintiff can admit documentary evidence that he has never referred to in the Plaint? 


 Also, what proof is required for a Plaintiff to prove that he was ready and willing in a suit for specific performance?


Thank you for your response.



 11 Replies

N.K.Assumi (Advocate)     18 March 2010

You are in very deep trouble as the plaint along with the anexures formed the pleadings, but you have not done that and that is fatal to your case. See the written statements of the defebndants whether those you failed to include in your plaint has been mentioned by the defendants in the writen statements, so that you may relied on them, otherwise it will be very difficult to pressed for a point which is not mentioned in your plaint along with the annexures, as the  plaintiff is entitled to a relief on the basis of cause of action stated in the plaint but it is open to the court in only suitable cases under Prder XII Rukles 6 of the CPC 1908, to afford a relief on the basis of the case as set up by the defendant. In such a case there is no prejudice to the defendant because the relief legitimately springs from the case as set up by him. Refer the Delhi High court Classic case in a Judgment delivered by Mr.Justice Mukul Mudgal: M/S.K.M.Construction Versus M/S J.VG.Finance Ltd (In Liquidation) IA 4049/1997 in Suit No.2224/1993.

1 Like

Raghav Sood (Lawyer)     18 March 2010

well amend the plaint to that extent and give a good cause for exercise of due deligence as the trail of the case might have cmmenced

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Raghav Sood (Lawyer)     18 March 2010

the plaintiffs explicit intetion to hnour the agreement and payment of stipulated sum as per the covenant plaintiff must prove that he was resourceful at the time of agreement and even at any stage in suit

NewDefendant (None)     19 March 2010

Thank you! I am the Defendant in this case. The Plaintiff did not mention certain material fact in his Plaint. In the Plaint  he said he was ready and willing to pay balance amount (Rs 30 lakhs) in his Plaint. He mentioned that he had loan processed from ICICI bank and attached some documentation to support the same. However,  In my written statement  I established that he did not have the money and the loan was not processed fully (I obtained evidence from ICICI bank).

So now he has attached  his and his wife's provident fund statement to show he did not need the ICICI loanand had money in PF account without ever mentioning it in his Plaint. Obviously this prejudices my case as I can easily prove that ICICI had not processed his loan but had no idea he did not need the loan. He never told me that nor did he ever mention it in the Plaint. 


Really appreciate your responses. Thank you once again.


Raghav Sood (Lawyer)     19 March 2010

plaintiff need not to vouch in for every time like to carry cheque and cash all the time its his intention to honour the agreement refer AIR 1970 SC 546 since their is sequential execution of covenant whether has performed his part of contarct or not is to adjudged by leading evidence

1 Like

NewDefendant (None)     19 March 2010

Thanks, I read the case. There was nothing pending to be done from my side. He promised to keep the sale deed ready, pay stamp duty and keep balance amount ready (by written letter). He is unable to prove he did any of this and filed the case (I guess hoping to coerce me into an out of court settlement).

N RAMESH. (Advocate Chennai. Formerly Civil Judge. Mobile.09444261613)     19 March 2010

Even now you can take the plea that all is to be proved is whether he was capable of accumalating the consideration. Mere having fund in PF account will not absolve his liability. What is required is liquidity. What the courts have said was the agreement holder need not bring the money every time to court but he should prove that he has money to pay the consideration.

In your case, as you said the plea about loan from ICICI bank was negatived.

No evidence is admissible, without pleading, is well settled prinicple. On that basis oppose the plea about money in PF account and also that it can not be equated with liquid money to enable him to pay the consideration. PF money can be withdrawn by an employee only after retirement. He can only get loan from that.

Don't lose heart. Keep fighting.     

1 Like

NewDefendant (None)     21 March 2010

"No evidence is admissible, without pleading, is well settled principle"

The pleading is "ready and willing at all material times" to pay  balance amount. Further pleading is that loan from ICICI was processed.

There is no specific pleading that he had other  sources to pay balance amount after it was proved his loan was not processed. Therefore I do not want to him to use this evidence

Are there any  case citations to support my contention? Thank you.


Raghav Sood (Lawyer)     21 March 2010

lot of decision of SC on this point

NewDefendant (None)     22 March 2010


I have seen a lot of cases but they seem to favour the Plaintiff!  In the Plaint, the Plaintiff has averred he was ready with the balance payment. He has also stated that he had a loan processed from ICICI.   As evidence he attached a loan letter from ICICI. 

In my written statement I pleaded that he was never ready with the balance payment (amongst a lot of other things). 

Now in the evidence stage, as he is unable to prove that his loan from ICICI was fully processed and disbursed, he has now attached as evidence his PF account statement and his parents savings account statements. I am completely surprised by this as he always told me in writing that his loan was under process all the time. 

Can he attach this evidence given that he has pleaded that he was ready with balance payment (although he only mentioned the loans in his plaint?)

NewDefendant (None)     29 March 2010

Our hearing took place last Friday. The Plaintiff cannot admit it in evidence.

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