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PLEADINGS[1]

Table of Contents

QUESTION BANK

Explain the rules of pleading fully.
Discuss the rules of pleading, signing and verification fully.
Define ‘pleading’ and state the objects and fundamentals and other rules of pleading.
Explain the essential requisites of the plaintiff and describe the manner of amending the pleading.

SHORT NOTES

Affidavits.
Amendments of pleading.
Striking of pleading.
Verification.
Alternative and inconsistent pleading

SYNOPSIS

DEFINITION/ MEANING OF PLEADING-

1) R. 1 Defines ‘Pleading’-

2) P. C. Mogha-

3) Supreme Court-

OBJECT OF PLEADING-

III. BASIC RULES OF PLEADINGS –

1) Plead facts and not law (O. VI, R. 2,)-

2) Plead Material facts (O. VI, R. 2,)-

3) Plead material facts and not evidence (O. VI, R. 2,)-

4) Pleading to be concise (O. VI, R. 2,)-

5) Pleading should be paragraphed and numbered (O. VI, R. 2 (2),)-

6) Pleading as to date, totals etc (O. VI, R. 2 (3))-

7) Forms is appendix A are to be referred (O. VI, R. 3,)-

9) Particulars to be given where necessary (O. VI, R. 4)-

10) Pleading as to condition precedent (O. VI, R. 6)-

11) Departure from previous pleading (O. VI, R. 7)-

12) Denial of contract (O. VI, R. 8)-

13) Pleading as to documents (O. VI, R. 9)-

14) Pleading as to malice, knowledge, etc (O. VI, R. 10)-

15) Pleading as to notice (O. VI, 11)-

16) Pleading as to implied facts (O. VI, 12)-

17) Presumptions of law (O. VI, R. 13)-

18) Signing and verification of pleading (O. VI, R. 14 & 15)-

ALTERNATIVE AND INCONSISTENT PLEADING-
STRIKING OUT PLEADINGS (O. VI, R. 16)-
AMENDMENTS OF PLEADINGS (R. 17 & 18)-

1) Leave to amend when granted-

2) Leave to amend when refused-

I. DEFINITION/ MEANING OF PLEADING-

IV deals with pleadings in general.

1) R. 1 Defines ‘Pleading’-

“Pleading” means a ‘plaint’ or ‘written statement’.

2) P. C. Mogha-

“Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contentions will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer”.

3) Supreme Court[2]–

Pleadings in civil cases are meant to give each side an intimation of the other’s case, enabling courts to determine what is really at issue between parties and to prevent deviation from the course of litigation on particular causes of action.

Thus, Pleadings are statements of the parties in writing, setting out their contentions and claims or counter-claims by giving details so that the opposite party may know what case he has to meet or what is the reply to his case. ‘Plaint’ is the statement by the plaintiff, and the ‘written statement’ is a statement of the defendant. In the written statement, the defendant deals with every material fact alleged by the plaintiff in the plaint and also states new facts which may be in his favour, adding such legal objections as he wishes to take to the claim.

II. OBJECT OF PLEADING-

The sole object of pleading is to ascertain the real dispute between the parties, to narrow down the area of conflict and to see exactly where the two sides differ, to preclude one party from taking the other by surprise and to prevent a miscarriage of justice[3].

The object of pleading is firstly to narrow down the parties to definite issues and to confine the trial within due limits so as to save time and expenses which might otherwise be needlessly thrown away; secondly, to prevent the other party from being caught by surprise, i.e. to give other side intimation regarding the particular facts of his case so that they may be met by the other side.

III. BASIC RULES OF PLEADINGS –

The following rules from number 1 to 4 are called basic rules of pleading, whereas the remaining are important in special circumstances mentioned therein-

1) Plead facts and not law[4] (O. VI, R. 2,)-

The first and foremost important principle of pleading is that the party should state only facts and not law. Pleading should be restricted to facts only. Therefore, neither provisions of law nor conclusions of mixed law and fact should be alleged in a pleading. The Judge must draw such inferences from those facts as are permissible under the law.

2) Plead Material facts[5] (O. VI, R. 2,)-

The second important principle of pleading is that plead material facts only. The term ‘material fact’ means all those facts upon which the plaintiff’s case or the defendant’s defence depends. In other words, ‘material facts’ are those facts which must be proved to establish the plaintiff’s right to claim relief in his favour. Therefore, it is essential to state all material facts by the plaintiff in his plaint and by the defendant in his written statement. The object of this rule is to avoid unnecessary, vague, lengthy and immaterial pleadings.

3) Plead material facts and not evidence[6] (O. VI, R. 2,)-

The third important rule of pleading is that the pleading should contain a statement of material facts on which the party relies but not the evidence by which those facts are to be proved.

4) Pleading to be concise[7] (O. VI, R. 2,)-

The fourth important principle of pleading is that it should be in a concise form. Pleading should be drafted with sufficient brevity and precision.

5) Pleading should be paragraphed and numbered[8] (O. VI, R. 2 (2),)-

Every pleading and each averment should be divided into paragraphs and numbered consecutively.

6) Pleading as to date, totals[9] etc (O. VI, R. 2 (3))-

Dates, totals and numbers should be written in figures as well as in words.

7) Forms in Appendix A are to be referred[10] (O. VI, R. 3,)-

Forms provided in Appendix A of the Code should be followed whenever they are applicable. However, where the forms given are not applicable, the forms of like nature should be used.

9) Particulars to be given where necessary[11] (O. VI, R. 4)-

Wherever facts relating to misrepresentation, fraud, breach of trust, wilful default or undue influence are pleaded in the pleading, particulars with dates and items should also be given.

10) Pleading as to condition precedent[12] (O. VI, R. 6)-

The performance of a condition precedent need not be pleaded because it is implied from the pleading. However, non-performance of a condition precedent must be specifically pleaded.

11) Departure from previous pleading[13] (O. VI, R. 7)-

Departure from the previous pleading is not permissible, and except by way of amendment, no party can raise any ground of claim or contain any allegation of fact inconsistent with his previous pleading.

12) Denial of contract[14] (O. VI, R. 8)-

The opposite party’s mere denial of a contract will be construed only as a denial of the factum of a contract and not the legality, validity, or enforceability of such contract.

13) Pleading as to documents[15] (O. VI, R. 9)-

Wherever the content of any document is material, it is sufficient to state the effect thereof as briefly as possible without setting out the whole or any part thereof (unless the precise words of the document or any part thereof are material).

14) Pleading as to malice, knowledge, etc.[16] (O. VI, R. 10)-

Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it is sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.

15) Pleading as to notice[17] (O. VI, R. 11)-

Wherever giving of notice to any person is necessary to be stated, it is sufficient to state giving of such notice and not form or precise terms of such notice unless they are material.

16) Pleading as to implied facts (O. VI, R. 12)-

Whenever any contract or relation between persons is to be implied from a series of letters or conversations or from several circumstances, it is sufficient to mention such contract or relation as a fact and to refer generally to such letters, conversations or circumstances without setting them out in detail.

17) Presumptions of law (O. VI, R. 13)-

The facts which the law presumes in favour of a party or as to which the burden of proof lies upon the other side need not be pleaded.

18) Signing and verification of pleading[18] (O. VI, R. 14 & 15)-

Signing and verifying the pleading is necessary. R. 14 states that every pleading must be signed by the party and his pleader. But if the party is unable to sign the pleading, it can be signed by any person authorised by him.

Similarly, R. 15 lays down that every pleading must be verified at the foot by the party or by one of the parties to the pleading or by some other person acquainted with the facts of the case. The person verifying the pleading must specify what paragraphs he verifies upon his knowledge and what paragraphs he verifies upon information received by him and believed by him to be true. Such verification must be signed by the person making it and must also state the date on which and the place at which it was signed. The person verifying the pleading should also furnish an affidavit in support of his pleading.

14 A makes it mandatory for the parties pleading to supply the address for service of notice. If the address provided by him is found to be false or incomplete, the suit of the plaintiff may have stayed, or the defendant’s defence may be struck off.

IV. ALTERNATIVE AND INCONSISTENT PLEADING[19]–

In civil matters, the party is not restricted to claiming only one right. A plaintiff can rely upon several rights alternatively, though they may be inconsistent, and a defendant may also raise many defences, though inconsistent. The Civil Procedure Code does not prevent a plaintiff from making two or more different sets of facts and claiming relief in the alternatively even inconsistent; however, he is not permitted to plead contradictory (i.e. if both pleadings do not stand together). Similarly, the defendant also can take different defences. The object of allowing alternative pleading is that the multiplicity of proceedings may be stopped, and since there are different reliefs based on different facts, the party is to be allowed to plead them.

Illustration

1) One can file a suit to declare that he has become the property owner on the sale deed entered into fifteen years back between himself and the seller. Alternatively, he may also plead that if the sale deed is found to be invalid, he may be declared owner by adverse possession[20] since at the time of the sale deed, the seller had handed over possession of the land to him, and it has been in his possession since then.

2) A Hindu wife can file a suit for maintenance against her husband. However, she can alternatively claim that even though she is not found to be her husband’s first wife, she may still get maintenance on the grounds of being the concubine of the person. (Because Hindu law permits maintenance to a concubine if she had remained faithful to the person from whom she is claiming maintenance).

3) In a suit by the Bank against the debtor, the debtor may deny the loan transaction or alternatively pray that if the court concludes that he took a loan, the plaintiff will be allowed to pay it in suitable instalments.

V. STRIKING OUT PLEADINGS[21] (O. VI, R. 16)-

16 provides that the court may, at any stage of proceedings, order to strike out or amend any matter in any pleading if, according to the court, it is unnecessary, scandalous[22], frivolous[23] or vexatious[24]Or tends to prejudice[25], embarrass[26] or delay the fair trial of the suit or otherwise be an abuse of the process of the Court.

VI. AMENDMENTS OF PLEADINGS[27] (R. 17 & 18)-

1) Leave to amend when granted[28]–

17 provides that the Court may, at any stage of the proceeding, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just, and all such amendments shall be made as may be necessary to determine the real questions in controversy between the parties.

Generally, the Court allows amendment as may be necessary for pleading on payment of costs to the other side and determining the real questions in controversy. R. 17 thus confers a wide discretion on courts in matters of amendment.

The term ‘any stage’ denotes that leave to amend pleading may be granted at the time of the trial, before the trial or even after the trial. Even leave may be granted in appeal or revision or in executing proceedings. Similarly, the substitution of defence or taking of inconsistent pleas through an amendment is also permissible.

However, proviso to R. 17[29] restricts the power of the Court and declares that the Court shall not allow such amendment after the commencement of the trial unless it comes to the conclusion that in spite of due diligence, the matter could not have been raised by the party before the commencement of the trial.

2) Leave to amend when refused-

In the following circumstances, leave for amendment may be refused-

(1) Where the amendment is not necessary to determine the real question in controversy between the parties.

(2) Where the amendment introduces a totally different, new and inconsistent case or changes the fundamental character of the suit or defence[30].

(3) Where amendment would completely deform the suit.

(4) Where an amendment is not sought in good faith.

(5) Where an amendment is permitted but not carried out within 14 days.

18 provides that if a party who has obtained an order for leave to amend does not amend the pleading accordingly within the time specified for that purpose in the order or if no time is specified, then within 14 days from the date of the order, he shall not be permitted to amend after the expiry of the specified time or 14 days unless time is extended by the Court.

However, the Court usually grants such permission.

*****

[1] वादकथन [

[2] In M/s. Ganesh Trading Co. v. Moji Ram, AIR 1978 Supreme Court 484.

[3] Throp v. Holdsowrth (1876) 3 Ch. D. 637.

[4] फक्त दाव्यास कारनीभुत तथ्ये/परीस्थिती कथन करावी कायदा नाही [तथ्यों को लिखे कानून की नहीं]

[5] महत्वाची तथ्येच/परीस्थिती कथन करावी [महत्वपूर्ण तथ्यों/परिस्थितियों का ही वर्णन किया जाना चाहिए]

[6] महत्वाची तथ्ये कथन करावीत पुरावा नाही [महत्वपूर्ण तथ्य सुनाए जाने चाहिए सबूत नहीं]

[7] वादकथन संक्षिप्तपणे असावे [वाद्कथन संक्षिप्त होने चाहिए[

[8] वादकथन परिच्छेदा मध्ये देवून त्यांना अनुक्रमांक द्यावा वाद्कथन को पैरेग्राफ में क्रमांकित किया जाना चाहिए]

[9] तारीख, एकूणबेरीज इ. बाबत वादकथन] [तारीख, कुल रक्कम के बारेमे वाद्कथन]

[10] परिषिश्ट ‘अ’ नमुना उल्लेख असावा [परिशिष्ट ए में प्रपत्रों को संदर्भित किया जाना है]

[11] आवष्यक ठिकाणी तपषिल द्यावा] [जहां आवश्यक हो विवरण प्रदान करें]

[12] ‘Condition precedent’ means important condition for the formation of contract.

[13] पूर्वीच्या वादकथनापासून दूर जाणे [पिछले कथन से प्रस्थान]

[14] कराराची नाकबुली [अनुबंध को नाकारणा]

[15] दस्तऐवजासंबंधी वादकथन [दस्तावेजों के बारेमें दलील]

[16] दुष्ट बुध्दी विचार, जाणीव बाबत वादकथन] [द्वेष बुद्धी, ज्ञान आदि के बारे में कथन]

[17] नोटीसबाबत वादकथन [नोटिस को लेकर विवाद]

[18] वादकथनावर सही करणे आणि वादकथनाचे सत्यापण [बयान पर हस्ताक्षर]

[19] पर्यायी आणि विसंगत वादकथन [वैकल्पिक और असंगत वाद कथन]

[20] Person becomes owner by having in his possession another’s property, even though he is a trespasser if his possession is undisturbed for more than twelve years.

[21] वादकथने काढून टाकणे [वाद कथानोको को निकालना]

[22] लांच्छनास्पद [शर्मनाक]

[23] शुल्लक [तुच्छ]

[24] तापदायक [अफ़सोसनाक]

[25] अन्यायकारक [अनुचित]

[26] अडचणीचे [कठिनाई का]

[27] वादकथनामध्ये सुधारणा [वाद कथन में सुधार करणा]

[28] सुधारणा करण्यास परवानगी कधी दिली जाते? [संशोधनों की अनुमति कब दी जाती है?]

[29] Inserted by 2002 Amendment Act.

[30] In M/s Modi Spinning and Weaving Mills v. M/s. Ladha Ram & Co. (AIR 1977 Supreme Court 680).

Facts– Original defendant approximately three years after the filing of the written statement made an application for amendment of the written statement. The amendment was being carried on to amend existing two paragraphs and to substitute two new paragraphs. Through amendment defendant want to come out from admissions made in one of the paragraphs.

Held– Where the amendment introduces a totally different, new and inconsistent case or changes fundamental character of the suit or deface it may be rejected. Party is not allowed to deprive another from the right of admission which has come on record from other’s pleading.