Law of Pleadings in India

The object of jurisprudence is to do justice to a just cause of an individual who approaches the court for justice. Every person who approaches the court seeking justice is called 'Suitor'. The statement of grievance filed before the court is called 'suit'. The judicial process starts with the institution or filing of the suit. The suit instituted or filed before the court is called plaint' and the suitor who files the suit is called the 'plaintiff. The opposite party against whom the suit is filed is called 'Defendant', and his contention or defence is called 'written statement'. The procedure regarding the institution of the plaint and other aspects are incorporated in various provisions of Civil Procedure Code, 1908, supplemented by rules and amendments framed by various State Governments.
 

Order IV, Rule 1 of the Civil Procedure Code runs as follows:

1. Suit to be commenced by plaint:- (1) Every suit shall be instituted by presenting a [plaint in duplicate to the Court] or such officer as it appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.

(3) The plaint shall no be deemed to be duly instituted unless it complies with the requirements specified in sub rules(1) and (2).
 

What is pleading?

Order VI of Civil Procedure Code deals with pleadings in general. Order VII deals with plaint and Order VIII deals with written statement. Order VI, Rule 1 defines pleadings as follows:

Pleading:

Pleading shall mean plaint or written statement.

Pleading is nothing but what a party to a suit pleads in support of his contention or case. We are aware that plaintiff and defendants are parties to the suit, and what they plead in their plaint and written statement respectively is called pleading. This is what exactly mentioned in Order VI Rule 1 CPC mentioned above. What a plaintiff pleads is called plaint, and what defendants plead is called written statement.
 

Fundamentals of Pleadings:

There is no specific form for pleadings. But there are certain fundamental Rules regarding pleadings. They derive their source from Civil Procedure Code. Order VI, Rule 2 of civil Procedure Code explains the fundamental rules regarding Pleading as Follows:
 

Pleading to state material facts and not evidence

1. Every pleading shall contain only the statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.

2. Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient contained in a separate paragraph.

3. Dates, sums and numbers shall be expressed in a pleading in figures as well an in words.

Some of the important fundamental principles of pleadings can be summarized as follows:
(a) Pleading must be concise;
(b) material facts only to be stated;
(c) paragraphs;
(d) legal points need not be mentioned;
(e) figures and words
 

(a) Pleading must be concise:

This is the most important and fundamental principle, which every Advocate and party should keep in mind, The art of pleading is not in language but in making the claim concise and clear. Pleadings are not considered as game of literary skill of an Advocate. It is sufficient even if the language of pleadings is simple. It is always better to make the pleadings simple as far as practicable instead of drafting pleadings in complex and compound sentences.

The pleadings need not be lengthy. They must be in a concise form. What is more important is not the number of pages, but the substance. There may be instances where particulars may be given in detail in the pleadings, but it is only an exception. Only in cases involving misrepresentation, fraud, breach of trust, wilful default and undue influence, particulars can be given (Rule 4, Order VI CPC). In other cases, it is always safe to make the pleadings concise as far as practicable. But at the same time case must be made out in a crystal clear form.

(b) Material facts only to be stated:

What is a material fact?

It is very important as well as interesting. Material facts are those which must be proved by the party ascertaining them. If they are not proved, the case will fail. Rule 4 of Order VI is as under.

4. Particulars to be given where necessary:
In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.

From the wording used in rule 4 of Order VI it is evident that some facts were unimportant and they need not be pleaded. A fact whether is material or not depends on the facts and circumstances of a given situation and differ from case to case. Take for instance, in a suit based on pronote, execution of the pronote and receiving the money by the defendant from the plaintiff is material. It must be pleaded.

Time and place of execution of pronote, the names of the attesters etc. are not material facts and they need not be mentioned in the plaint. Those facts can be proved during trial depending upon the written statement of the defendant. If the defendant contends that it is forged pronote, then the plaintiff must establish the time, place execution and attestation of the pronote. But these facts need not be mentioned in the plaint, anticipating the probable defence of the defendant.

In a very old Lahore case it was observed as follows:
A party should not plead to facts which have not become material at the stage of filing his pleading. He need not allege reply to probable defences. In other words, he should not anticipate answers of his opponent.

Omission to state a material fact will cost the case itself. Because once an important material fact is omitted in the plaint or in the written statement, no amount of evidence will be allowed during trial regarding that fact. In such a case, the only remedy is to take steps for the amendment of pleadings, It involves great risk. The other party will oppose the same and more over it is at the discretion of the court. To avoid such a risk, sufficient care should be taken while drafting a pleading regarding material facts.

(c) Paragraphs:
Beauty of the pleading can be judged on the basis of paragraphs. Dividing a pleading into paragraphs has two advantages. Firstly, it will give clarity to the pleadings. Secondly, it will add beauty to the pleading. Paragraphs are intended for the purpose of convenience also. Every novel statement, newspaper item ete, are divided into paragraphs, we are aware. Without paragraph it is difficult to understand and study anything. This will apply to legal pleadings also. It is always safe and convenient to divide the pleadings into paragraphs, each allegation or fact mentioning in separate and distinct paragraph.

While drafting a pleading each fact and averment should be mentioned in chronological order also while dividing them into paragraphs. In other words, the averments should not be in zig zag manner.

(d) Legal points need not be mentioned:
As a general rule pleading should state only the facts and legal inference should be drawn from them and it is the duty of the Court to find out the law. It is so because the party is not expected to explain the law to the court. That is why, the art of pleading lies in stating the facts with implied provision of law.

However, there are certain limitations to this. Practically speaking it is difficult to avoid legal pleas in toto. In fact, in some cases it will be very much essential and a must to raise question of law in the pleadings. Say, for example, when the suit is barred for want of statutory notice (like notice under Section 80 of CPC or notice under Section 106 of Transfer of Property Act), the defendant should state in his written statement that the suit is barred for want of statutory notice Though it is a question of law, the defendant must mention the same in his pleading or otherwise he will lose his case. The same will apply to the cases which involve limitation, estoppel, res judicata etc.

(e) Figures and words
Last but not least fundamental principle regarding pleadings is that dates, sums and numbers shall be expressed in figures as well as in words. In most of the cases, this principle is obeyed in the negative way. The principle behind this rule is to avoid tampering. It is very easy to alter figures but it is not the same with words. It is very easy to alter figure 7, into 9. But it is difficult to alter word 'seven' into 'nine'. That is why, it is always safe to express dates, sums and numbers both in words and figures in pleadings.

In conclusion, drafting of a pleading is an art. The skill is not in language but on assisting the Court to investigate the truth between the parties. The pleading must be read as a whole.

Other principles:
While dealing with pleadings there are certain other important principles about which every Advocate and litigant must be aware. They are discussed hereunder:

1. Departure or amendment of pleading:

No party is allowed to depart from the pleading which he has taken at the first instance.

This is a general rule. But the court may allow such departure if it is just and necessary in the interest of justice. Rule 7, Order VI, CPC reads as under:

Departure:
No pleading shall except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.


When a party intends to depart from original pleading he should make an application. There is some difference between amendment of pleadings and departure from previous pleadings, though departure also amounts to amendment. Departure generally means creating a new ground or claim which is completely inconsistent with the previous pleading. This may be necessary when situation undergoes complete change after the institution of the suit or filing of written statement, or when an unknown thing comes to light. Contrary to this, by an accidental error or due to inadvertence, there may be a mistake in the pleadings. In such a case, law gives an opportunity to the litigant to rectify the mistake by way of amendment of pleadings. Such provision is there in Order VI, Rule 17 of Civil Procedure Code which reads as follows:
 

Amendment of pleadings:

The court may at any stage of proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between parties.

As it is already mentioned above, and it is evident from the amendment. IHence a petition has to be filed under Order VI, Rule 17, for amendment of pleadings either by way of departure or otherwise, To allow the same or not is at the discretion of the court, depending opon the circumstances made out in the petition. There are no fixed rules.

It is a general rule that pleadings can be amended. Amendment of pleadings can be made at any time and at any stage of the proceeding even at the stage of appeal or revision. Delay is not a bar. But it must be within the period of limitation. So also any amendment which alters the very nature of the suit, its fundamental character, new ground of claim based on new cause of action is not allowed.

Amendment of pleadings plays an important role in civil litigation. There are a number of landmark judgments on this aspect delivered by the Supreme Court and various High Courts. Advocates and readers are requested to refer those judgments for details.

You are aware that pleadings include plaint and written statement. So, Order VI, Rule 17 is applicable even for amendment of written statements. But there is little confusion regarding Order VIII, Rule 9 C.P.C. There is a feeling that Order VI, Rule 17 is applicable for amendment of plaints and Order VIII, Rule 9 for amendment of written statement. It is completely wrong. Order VIII, Rule 9 is intended only for subsequent pleadings by way of additional written statement by the defendant and written statement by plaintiff, where the defendant claims set off or counter claim. Hence Order VIII, Rule 9 is not for amendment of written statement.

The scope for amendment of pleadings is very wide, more so, regarding plaint. Each and every minute alteration in plaint including amendment of cause title, adding legal representatives, correcting type mistakes also amounts to amendment of pleadings.
 

2. Alternative pleadings:

We are aware that pleadings must be clear and specific. So also the relief claimed for should be specific.

But the parties are also at liberty to take alternative or even inconsistent pleas in their pleadings. There is no specific bar in the Civil Procedure Code prohibiting alternative or inconsistent pleas. This gives an implied right to the parties to take alternative or inconsistent pleas. Supreme Court clarified this right as under. A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative.

Naturally variation between pleadings will affect the case of the party, though it may not necessarily be fatal to the case. That is why, courts are not encouraging alternative pleas. Alternative pleas can be entertained only when the material for such alternative pleas is already available on record. But, if the alternative pleas affect the rights of the other party, they cannot be allowed. The object in permitting alternative pleas is to contain the scope for further litigation on the same subject matter or facts.

To put it another way, when there is no inconsistency on the facts and material on record, alternative or inconsistent pleas can be made in the pleading. But you cannot ask for two relief's in alternative which are contradictory to each other. In an instant case a person files a suit for declaration that a contract of sale is void, as it is obtained by undue influence. He also makes an alternative plea for specific performance based on the same contract, which he alleges as void. Calcutta High Court held that both the reliefs are contradictory to each other and as such they cannot be taken as alternative pleas.

There may be instances where the defendant might have come forward with an alternative plea in his written statement, basing upon the same facts in the plaint. In such a case, if the court is satisfied with the case of the defendant, the court may pass a decree in favour of the plaintiff upon the case that defendant makes. Say for example, plaintiff filed a mortgage suit on the basis of deposit of title deeds. The defendant comes out with an alternative plea that he borrowed money as a hand loan and that title deeds were deposited not with an intention to create mortgage. Then the court may pass a simple money decree in favour of the plaintiff if the case of the defendant is proved, even though it is not the plea of the plaintiff
 

3. Further and better statement or particulars:

In some cases, it may so happen that by the time of filing of plaint or written statement, full particulars regarding certain facts may not be available to the plaintiff or defendant as the case may be. In such circumstances, the parties may reserve the right to file further or better particulars at a later stage, and they can file them later. However, it is at the

discretion of the court to allow them or not. In an accident claim, at he fine of filing written statement, the insurance company may not be having full particulars regarding the driving license of driver of the vehicle involved in the accident In such a case, the insurance company can simply file the written statement alleging that the driver has no Valid license and can reserve the right to file additional written statement after getting full particulars, Subsequently, if they got full information that the driver has no valid driving license, they can file additional written statement with the leave of the court.

Prior to the amendment of Civil Procedure Code by Act 49/1999, rule 5 of Order VI enabled the parties to file further and better statement or particulars. But the said rule was omitted by Act 49/1999, However, the parties are at liberty to amend their pleadings by way of amendment of plaint or by amendment of written statement or by filing additional written statement, but of course with the leave of the Court.

At the same time it should be kept in mind that further and better statement or particulars does not mean filling up of gaps or lacunae in plaint or written statement. No new case or different cause of action is permitted.
 

4. Documents and conversation:

When a pleading is based on a document like sale deed, contract of sale, partition deed, partnership bond etc., it is not necessary to reproduce the entire document in the pleading. It is sufficient to state the effect of the document. But when specific words in such document are material, those words only can be incorporated in the plaint (Order VI, Rule 9, C.P.C. ).

Similarly, when series of letters, correspondence and conversation are material for a given situation or to draw an implied inference, it is sufficient to state the same in the pleadings. A simple reference to those letters, correspondence or conversation is sufficient without setting them out in detail. The same rule will apply in alleging malice or fraudulent intention or knowledge or notice about a particular thing or incident which is material, It can be sufficient to allege such notice as fact (Order VI, Rules 11 and 12 C.P.C.).
 

5. Contract and condition precedent:

When a suit is filed on the basis of contract and any condition precedent, the performance or occurrence of which is material, the same must be specifically and clearly stated in the plaint, or in the written statement. If the defendant


denies the contract, it amounts to denial of contract as a matter of fact; but not amounts to denial of the legality or sufficiency in law of such contract. If he wants to dispute the legality of the contract, it should be stated specifically (Rules 6 and 8 of Order VI C.P.C.).
 

6. Verification of pleadings:

Every pleading must be verified and signed by the person who makes the pleading. He should also furnish an affidavit in support of his pleadings. For any reason, if the deponent cannot verify and sign, it can be done by his authorized agent.

Pleading starts with cause title and ends with relief asked for. After the relief the party will subscribe his signature on the right side and the Advocate (where party engages an Advocate) on the left side.

Then comes the verification para. Verification is nothing but affirmation that the facts mentioned in the plaint/written statement are true. Rule 15 of Order VI C.P.C. reads as under:
 

Verification of Pleadings:

(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other persons proved to the satisfaction of the court to be acquainted with the facts of the case.


(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.


(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.

Whatever may be the intention of the law makers, sub-clause (2) of Rule 15 is not practicable in all cases. There are many practical difficulties, that too where suits are filed by the corporations, institutions, banks, general power of attorney holders etc. In such cases, the person who verifies the plaint may not be personally aware of the

facts, truth or otherwise of the particulars in the plaint. They simply file the suits as per the information available in the records. For example, a power of attorney agent of a corporation is entitled to sign and verify the plaint on behalf of corporation or one of the directors or other principal officer of the corporation can sign and verify the plaint The object of verification is to make the party verifying the pleading responsible for the particulars in the plaint or written statement as the case may be. But in view of the practical difficulties mentioned above, verification simply becomes a procedural one or just a formality simpliciter.

Normally the one who signs the plaint or written statement has to verify the same. But where there are more than one plaintiff, it is sufficient if any of them verifies the plaint on behalf of others. Normal version of verification as is now in practice is as under:

I do hereby declare that the facts stated above are true to the best of my knowledge, belief and information.

 

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