PLEADING, DRAFTING AND CONVEYANCING
Q. 1(a). Define pleadings? What is the object of pleadings? Discuss the basic rules of pleadings.
Ans. Meaning and Definition of Pleadings. In Halsbury’s Laws of England, it has been noted that the term ‘pleading’ is used in civil cases to denote a document in which a party to a proceeding in a court of first instance is required by law to formulate in writing his case or part of his case in preparation for the hearing. A pleading in legislation concerning procedure of the Supreme Court, includes any petition or summons and also includes the statements in writing of the claim or demand of any plaintiff. and of the defence of any defendant thereto, and of the reply of the plaintiff to any counter-claim of a defendant. ‘Pleading’ also denotes the act of drafting or settling any such document or part thereof.
Bullen and Leake have defined pleadings as the “printed or written statements made by and delivered between the parties to an action, setting forth in a summary from the material facts on which they respectively rely in support of their claim or defence.”
P.C. Mogha has stated that “Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contention will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer.”
Order IV, Rule 1 of the Code of Civil Procedure defines “Pleading” in terms of plaint and written statement only. It states that pleading shall mean plaint or written statement. But this definition is not exhaustive. It is true that ‘pleading’ in the strict sense means either plaint or written statement but sometimes petitions and affidavits in original proceedings are treated as pleadings in suits although they do not conform to the formal parts of a plaint or a written statement. [Mashuq Ali v. Hurunnissa, AIR 1929 Oudh 205 at 206].
Similarly the statement of the parties recorded by the Court under Order X. Rule I are treated as supplementary pleadings. (Mohammad Yahya v. Rahem Ali, (1929) 117 LC. 813 at p. 814].
Object of pleading.- “The whole object of pleadings, is to bring the parties to an issue and the meaning of the rules of pleading was to present the issue being enlarged, which would prevent either party from knowing when the cause came on for trial what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.” [Thorp v. Holdsworth, (1873) 3 Ch. D. 637 at 639].
The object of pleading is also (i) to prevent the parties from being taken by surprise, (ii) to avoid unnecessary expenses and troubles, (iii) to do away with inconsistencies, (iv) to avoid unnecessary delay, and (v) to assist the Court in arriving at proper decision.
In other words, the object is to enable the parties to know before the trial, the real point to be discussed and decided.
The Rules of pleadings.- The law of pleadings may be summarised in four words ‘plead facts not law. It is for the parties to state facts on which they rely for their claim and it is for the court to declare the law that arises from those facts. Order IV C.P.C. lays down the following fundamental rules of pleadings which may be enumerated below:
1. Every pleading must state facts and not law.- The first fundamental rule of pleading is that only facts should be stated in pleading The Judge draws inferences from the facts as are permissible under the law. Neither provisions of law nor conclusions of mixed law and facts should be stated in a pleading.
If facts are not stated in the plaint, it shall be held to be bad inspite of allegations of inference of law which the plaintiff draws from those facts Merely alleging that certain acts are unlawful’ or ‘improper’ is not sufficient unless those facts are alleged from which the plaintiff draws the inference that the act was unlawful or improper. Similarly, the defendant in order to deny his liability, must state the facts upon which he bases his denial. For examples, in a suit on the basis of pronote, mere saying that the defendant is not liable is not sufficient. He shall allege that he did not borrow the money, or that he did not execute the pronote or that he had repaid the same. It is not sufficient to say that the plaintiff is entitled to a right of way over the defendant’s land, he should state how he is entitled to that right, whether by grant, prescription or an easement of necessity or otherwise. He must also state the particular kind of easement.
But the parties should plead the foreign law, or particular custom or usage of trade, if one relies on them, because the court is not bound to take judicial notice of those itself. If the plea of custom is not taken, then the court will not permit the parties to adduce evidence to prove it.
Similarly, the legal pleas e.g.. plea of estoppel, limitation, res judicata. etc., may be raised by the parties. In a suit by a landlord against his tenant for the recovery of rent, if the defendant denies the plaintiff’s title, the landlord (Plaintiff) may take a plea of estoppel under Section 116 of the Evidence Act. Such pleas are called objections in point of law.
Mixed questions of law and fact must be stated in the pleadings and they cannot be allowed to be raised subsequently.
2. The pleading must contain the statement of the material facts only.- The parties should plead material facts only and material facts only. This rule gives much emphasis on the words ‘material facts. Therefore, it is essential to know as to what is material fact. Every fact is material for the pleading of a party, which he is bound to prove at the trial (unless admitted by the opposite party) before he can succeed in his claim or defence. Facts which are not necessary to establish either as a claim or as defence are not material. Thus material facts are the facts out of which some legal rights, liability or disability must necessarily arise and upon which. accordingly a decision must be arrived at. These are the facts which form the subject-matter of controversy. Before drafting the pleading it is necessary for the pleader that facts which are found to be immaterial should be omitted. A fact may be a material fact for a particular case, but quite immaterial, in another case. So the question whether a particular fact is material or not depends upon the circumstances of each case.
Material facts are to be pleaded in pleadings. Material particulars are not required to be pleaded. Smt. Sukanti Patniak v. Shailendra Narayan Singh, AIR 2012 NOC 160 Ori.).
All those facts which are essential to cloth the petitioner with a complete cause of action are ‘material facts. Particulars, on the other hand. are the details of the case set up by the party. [Udhav Singh v. M.R. Scindia, AIR 1976 SC 744].
In a suit for the recovery of money due on a promissory note payable at a particular specified date after a specified period, it is necessary to allege that the said promissory note was presented for payment at the place after the stipulated period but the same was refused.
In a suit for injunction, it is material to allege that the defendant ‘threatens and intends to repeat the illegal act.
In a suit for ejectment of the tenant, it is necessary, to allege that the defendant was served with a notice under Section 106 of the Transfer of Property Act.
In an action for libel, the actual words used must be pleaded.
Examples of immaterial facts. – In a suit for money due on a promissory note, payable on demand, it is not necessary to allege that the plaintiff demanded the money and the defendant refused to pay the amount.
In a suit for price of goods sold to the defendant, it is not necessary to allege that the goods belonged to the plaintiffs.
In a suit on the basis of bill of exchange it is immaterial to plead that the bill was for consideration because Section 116 of the Negotiable Instruments Act raises a presumption that every bill of exchange shall be presumed to be for lawful consideration unless rebutted.
Order VI, Rule 9 provides that whenever the contents of a document are material, it shall be sufficient in any pleading 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.
Facts which tend to decrease the amount of damages are known as ‘matters in litigation of damages’ and are thereof material facts. Such facts should be taken in defence by the defendant under Order VIII, Rule 3, C.P.C. The defendant must deal specifically with each allegation of facts in the plaint of which he does not admit the truth, except damages. Rule 3 thereof does not apply in cases of damages.
General damages need not be pleaded. But where special damages are claimed, they should be pleaded. For instance, in a suit for malicious, prosecution, the special damages e.g. cost of defence, loss of professional business are claimed, then it should be pleaded.
No fact should be alleged in the pleading which is not at all material at the present stage of the action, although it may become material at a later stage. A facts in the expectation of being material at some future date should not be alleged in the pleading.
Exception to Rule 2.- Following are the four exceptions to the general rule that all material facts and material facts only should be pleaded:-
(a) Performance of the conditions precedent.
(b) Matters of legal presumption.
(c) Matters of which the burden of proof lies on the other party.
(d) Matters of inducement.
(a) Performance of the condition precedent. Whenever condition precedent goes to the root of the course of action, it is always proper and safe to allege it. Order VI, Rule 6 provides ‘Any condition precedent the performance or occurrence of which is intended to be contested shall be distinctly specified in his pleading by the plaintiff or the defendant as the case may be, and subject thereto an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading’. This rule is identical with Order XIX, Rule 14 of the Supreme Court of England. It is not necessary for a party to plead expressly the performance of a condition precedent. It will under this rule be implied in his pleading.
(b) Matter of legal Presumption. Neither party need in any pleading allege any matter of fact which the law presumes in his favour nor as to which the burden of proof lies upon the other side unless the same has first been specifically denied (Order VI, Rule 13, C.P.C.). Such presumptions are those which the court is bound to presume i.e. only those facts need not be pleaded which a court shall presume, but facts which court may not presume should be pleaded. In a suit on the basis of the promissory note, the plaintiff need not allege the consideration as under Section 118 of the Negotiable Instruments Act, the presumption of consideration is in favour of the plaintiff.
(c) Matter of which the burden of proof lies on the other party.- Similarly, the burden of proving any facts invalidating a bond is upon the defendant, therefore, the plaintiff need not allege that defendant executed the bond without fraud or coercion. But in case of bond executed by pardanashin lady the burden of proving the fact that bond had been read over and explained to her, and she executed it of her own free will after having independent advice, is upon the plaintiff and therefore he must plead them.
(d) Matters of inducement. It is desirable to state the names of parties, the business they carry on, the relation between them and other surrounding circumstances leading up to the dispute. These facts, are called matters of inducement. They are not material facts but they are allowed because they explain what follows. However, such prefatory statements should be reduced to a minimum.
3. It must state only the facts on which the party pleading relies for his claim or defence and not the evidence by which they are to be proved. The material facts on which a party relies are called Facta Probanda and they should be stated in the pleading whereas the evidence or facts by means of which they are to be proved are ‘Facta Probantia and they should not be pleaded. They are only relevant facts in issue and in order to establish the facts in issue they will be proved at the trial.
Order VI, Rule 2, C.P.C. clearly lays down that every pleading shall contain, and contain only 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, thus when the plaintiff alleged that curtain of his windows are ancient, the defendant should not plead that in a previous suit the plaintiff had admitted that the windows were not ancient, inasmuch as, the fact is only evidence disproving the plaintiff’s case. Similarly, in a suit for damages resulting from defendant’s wrongful act, the facts establishing the connection between the alleged damage and the wrongful act that the defendant caused, and the plaintiff suffered need not be stated. The most common instance of pleading evidence is that of setting up previous admissions of the opposite party.
4. The pleading should state facts concisely, but with precision and certainty. In aiming at conciseness the precision should not be sacrificed.
5. Pleadings should be divided into paragraphs, numbered consecutively and dates, sums and figures shall be expressed in figures as well as in words.
6. All the facts necessary for the enforcement of a legal right must be stated. For example, in a suit for breach of contract, the kind of duty owed to the plaintiff and the manner of its violation by defendant should be specifically stated.
7. The pleadings must relate to what is material at the present stage of the case. Allegations in anticipation of opponent’s answer should not be made.
8. If the party relies on fraud, misrepresentation, breach of trust, undue influence etc., they must be stated in the pleading.
Particulars of Corrupt practice must be pleaded supported by affidavit, [R. K. Anand v. Subhash Chandra, AIR 2017 P.&.Η. 91].
The rules of pleading are means to make proper decisions, (Raj Narain v. Indira Gandhi, AIR 1972 SC 1902).
However, the Indian Courts have from time to time stated that the rules relating to pleading should not be so strictly interpreted as to render them useless and of no service to justice. Though there has been set no limit as to how much liberal their interpretation ought to be, get at some set limit thereto is necessary.
Q. 1(b). What are the general rules of pleading?
Ans. General rules of pleading
General rules of pleading are as stated below:
1. To leave the unnecessary facts, particularly while stating important facts.
2. To pay proper attention to the language used in pleading.
3. As far as possible, use of adjectives, adverbs and arguments should be avoided.
4. The statement of the legal effects of the words of the document should be made without repetition thereof.
5. To state malice, fraud, intention, knowledge or other conditions of mind. if important, as facts without mentioning the conditions in which they are to be shown.
6. To state the legal effect of letters, series of talks or other conditions without narrating the entire story in detail, and
7. To avoid stating such facts which law presumes in favour of a party or the burden of proving which lies on the opposite party.
Further, keeping in mind the following ways are helpful in achieving precision:
(i) to state correct names and description of the persons and places,
(ii) to avoid use of pronouns as far as possible,
(iii) not to indicate plaintiffs and defendants by their names,
(iv) to mention all the names of the things, but to indicate one thing by one name only
(v) to state facts in simple and clear language, avoiding the use of ifs and buts.
(vi) to use small sentences,
(vii) not to repeat anything.
(viii) to keep in mind and observe the basic rules of grammar,
(ix) to divide the pleading in numbered paragraphs, writing date and numbers in figures.
(x) Appendixes must be in the prescribed form and the documents of pleading signed, dated and attested.
Although strict rules of pleadings are not applicable in Public Interest Litigation (PIL), but decisions cannot be based on grounds outside the pleadings. (Asaf Ali Khan v. State of Odisha, AIR 2017 NOC 348 Ori.].
Q. 2. What is plaint? Explain the technique of drafting a plaint. In what way should malice be pleaded in a plaint ?
Ans. Plaint defined. Plaint is a document filed by the plaintiff by which he pleads his cause of action alongwith all necessary particulars which he makes the supporting basis of his case. We may say that plaint is the statement of the plaintiff containing grievances in order to initiate an action in a Court of law. It is the backbone of a suit. By means of plaint, the plaintiff apprises the court and the defendant of his case. In short, a plaint is a document by filing which the plaintiff puts the machinery of the court into motion.
Particulars which should a plaint contain. The plaint contains the following particulars ordinarily:
1. Name of the court in which the suit is brought.
2. Name, father’s name, occupation and residence of the plaintiff and defendant.
3. Statement that plaintiff or defendant is a minor or lunatic (if so), and in that case the plaint shall mention the name of his guardian or next friend.
4. Facts constituting the cause of action and when it arose.
5. Facts showing that the court has jurisdiction.
6. Relief, either simple or in the alternative, which the plaintiff claims.
7. Amount allowed to be set-off or portion of the claim relinquished by plaintiff,
8. Statement of value of the subject-matter of the suit for the purpose of jurisdiction and court fees.
9. Statement that the defendant is interested in the subject-matter of the suit and is liable to be called upon to answer the plaintiff’s demands.
Description of suit property must not vague, indefinite and not insufficient for proper identification. [Manindranath Bhuyan v. State of Odisha, AIR 2017 NOC 229 Ori].
Parts of the Plaint. The plaint generally consists of the three parts-
1. The heading and title.
2. The body of the plaint.
3. The relief claimed.
1. Heading and title. The plaint begins with the name of the court in which the suit is brought. Therefore, the name of the Court has to come on the top of the plaint. When the court has various jurisdictions, the jurisdiction in which the suit is brought should also be stated below the name of the court, thus,
In the High Court of Judicature at Allahabad Testamentary and intestate jurisdiction.
The title follows the number of the suit which is noted by the officials of the court. The year should be written thus-
Original Suits No……..……………of 1980
Or
Suit No. …………………………..of 1969
After the heading, the descriptions of the parties is given. The description includes the name of the father, age and any other particulars necessary to identify a person. The following description will make the position clear:
Rajendra Kumar S/o Sri Krishna Sahay aged about 28 years,
resident of 48/1, Gandhi Nagar,
Meerut City……………………………… Plaintiff
Versus
Girish Chandra S/o Sri Ram Bharosey aged about 30 years,
resident of 28, Jatti Wara,
Meerut City……………………….. Defendant.
In the case of the minor or person of unsound mind, the name and description of the next friend or the guardian, as the case may be, through whom he sues or is sued should be stated.
Illustration
Ram Chandra, Minor, son of Sri Krishna Kumar aged about 4 years.
through Krishna Kumar S/o Sri Amba Prasad aged
about 40 years, father and next friend, resident of
123, Khatri Chowk, Meerut…………. Plaintiff
Versus
Shyam Behari Minor son of Late Shive Nath aged about 13 years,
through Smt. Ram Sakhi, widow of Shiv Nath,
aged 40 years, guardian resident of 121 Rajendra Nagar,
Meerut………………………………. Defendant
2. Body of the plaint. It is through the body of the plaint, which is its second part, that the plaintiff acquaints the Court and the defendant with his case. The statement of facts is divided into paragraphs numbered consecutively. As far as convenient, a paragraph should contain only on allegation, dates, time and numbers should be expressed in figures as well as in words. (Order V1 Rules 2 and 3).
The body of plaint usually begins thus-The above named plaintiff states as follws.
1. That……………………
The body of the plaint is often commenced with certain introductory statements stating who the parties are, what business they carry on, how they are related or connected and other circumstances leading up to the dispute.
(i) A statement as to when the cause of action arose (Order VII, Rule 1 (e));
(ii) Facts showing that the court has jurisdiction (Order VII, Rule 1 (f));
(iii) A statement of the value of the subject-matter of the suit for the purpose of jurisdiction and of court fees so far the case admits (Order VII, Rule 1 (i));
(iv) The relief claimed by the plaintiff.
(v) Claim of set-off if and as admitted by the plaintiff.
(vi) When any party is a minor or a person of unsound mind, a statement to that effect (Order VII, Rule 1 (d)).
(vii) When the plaintiff sues in a representative character, a statement to that effect, coupled with a statement that he has taken the steps (if any) necessary to enable him to institute the suit (Order VII, Rule 4).
(viii) When the suit is instituted after the period of limitation, a statement showing the ground on which exemption from the law of limitation is claimed. (Order VII, Rule 6).
The cause of action clause is generally written as follows:
“The cause of action arose on 18th August, 1981, when the defendant took possession of the house, and again on 18th February, 1982, when he refused to deliver it back to the plaintiff.”
The jurisdiction clause in the plaintiff is written as follows:
“That the defendants 1 to 3 reside within the jurisdiction of the court.”
Or
“That the money payable under the contract was made payable at Meerut, within the jurisdiction of this court.
The clause of valuation is required in some cases where the court-fee is charged under the Court Fees Act on the valuation. Valuation of a claim for the purpose of jurisdiction is required in order to see whether the suit is within the pecuniary jurisdiction of the court and also further for determining the forum of appeal.
A statement to the effect if the party is a minor or of unsound mind, should be made in the body of the plaint. This statement should be made in the beginning of the plaint in the following form:
“That the plaintiff is a person of unsound mind, and the suit is being instituted by him through next friend.”
Order VII, Rule 1 of Code of Civil Procedure provides that the substantial portion of the plaint should contain a statement of all the facts constituting the cause of action, with such particulars of those facts as are necessary. Where the plaintiff seeks relief in separate and distinct grounds, he should state them as far as possible separately and distinctly. It should also state the interest of the defendant in the subject-matter and his liability to answer the plaintiff’s demand. When there are more plaintiffs, than one and they are not jointly interested in the claim, it should be shown what the liability of each is, and why each have been impleaded in the suit. Similarly if more plaintiffs than one, bring the suit and their interest in the subject- matter is not joint, their causes of action should be separately shown. The third and the last part of plaint is the relief sought to by the plaintiff in the suit. The plaintiff should claim his relief in accurate words. If the plaintiff can claim more than one relief on the same cause of action, he will not be allowed to bring a new suit for the omitted relief unless the omission in the first suit was with the leave of the court (Order 2, Rule 2).
Unnecessary, scandolous, frivolous and vexatious pleadings are liable to be struck off. [Sharad Tripathi v. Bhishm Shanker, AIR 2012 NOC 288 Alld.]
Every pleading shall be verified at the foot of the plaint by the party or by one of the parties pleading or by some other persons who are acquainted with the facts of the case. The verification is as follows:
“I, X plaintiff verify that the contents of paras 1 to 6 of this plaint, are true in my personal knowledge and the rest of the paras 7 to 9 are true in my personal belief and on the basis of legal advice. Verified this day 12th November, 1981 at Meerut.
Q. 3(a). What are the grounds on which amendment to the pleadings could be sought? Explain.
Can the court refuse amendment of the pleading ? If so, on what ground?
Ans. Amendment of Pleadings
Amendment is the formal revision or addition or alteration or modification of the pleadings.
Order VI, Rule 17 of Civil Procedure Code deals with amendment of pleadings. This rule provides that the court may at any stage of the 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 the parties.
Therefore the court can grant permission to amend the pleadings of the parties on submitting application for leave to amend under the following circumstances:
(i) The amendment must be just, or
(ii) The amendment is necessary for the purpose of determining the real question in controversy between the parties, or
(iii) The amendment will not injure the opposite party which cannot be compensated by costs.
The court generally allows amendment. The object of the rule is that courts should get and try the cases on merits that come before them and should consequently allow all amendments that may be necessary for the – purpose of determining the real question in controversy between the parties provided it can be done without causing injustice to the other side. In Cropper v. Smit. Bower, L, observed as follows:
“It is well established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. I know of no kind of error or mistake which if not fraudulent or intended to overreach a court ought not to correct, if it can be done without injustice to the other party. The courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendments as a matter of favour or grace. It seems to me that as soon as it appears that the way in which the party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice of right.”
The words used in Rule 17 of Order IV, C.P.C. are to the effect that the Court may allow amendment ‘at any stage of proceedings’, Accordingly, the Supreme Court has held that however negligent or careless may have been the first omission, and, however, late the proposed amendment the amendment may be allowed if it can be made without causing injustice to the other side. [Harcharan v. State of Haryana, AIR 1983 SC 43].
The power of the Court to allow the amendment is wide and can be exercised in the interest of justice. The amendment cannot be claimed as a matter of right and in all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt a hyper-technical approach, liberal approach should be the general rule particularly in cases where the other side can be compensated with costs. [B. K. Narayan Pillai v. Parameswaran Pillai, (2000) 1 SCC 712].
Grounds on which the court can refuse amendment of pleadings. The court can refuse amendment of the pleadings under the following circumstances:
(1) Where amendment is not necessary for the parties i.e. for purpose of determining the real question in controversy between the parties. This happens in two ways:
(i) Technical amendment. When the amendment is merely technical. If the defendant after the evidence of the plaintiff, raises the technical point to the maintainability of the suit, and for this purpose, wants to amend his written statement, the amendment should not be allowed.
(ii) Useless or unnecessary amendment. Amendment should not generally be allowed where such amendment does not substantiate the plaintiff’s claim or it does not support the defendant’s case, the object of the rule being to enable the real question in dispute to be raised in the pleadings. Leave to amend would not help him in understanding his claim, or of the defendant to support his claim.
(2) Where the amendment would cause the opposite party such injury as cannot be compensated by costs.
(3) Where the application for amendment is mala fide, i.e., not made in good faith e.g., where its object is to defeat or delay the plaintiff’s claim.
(4) Generally no amendment should be allowed which would convert the suit into one of a totally different character based not only on entire different allegations but on allegations wholly inconsistant with the original pleading.
(5) Where there has been excessive delay in filing the amendment application.
However, the courts may in very rare cases, and under exceptional circumstances allow every such amendment provided that application is made at a very early stage of the suit and provided the change in the character of the suit is merely technical and not substantial. Amendment may not be refused if due to subsequent events, the original relief has become inappropriate.
Amendment of written statement can be permitted at any stage of trial unless and until serious prejudice or irreparable loss is caused to opposite party. [Tarsem Singh v. Kashmir Kaur, AIR 2017 NOC 35 P.&H.]