July 6, 2022
pleadings

What is Pleadings?

The law of pleading may be tersely summarised in four words; "Plead facts not law." Thus, existence of a custom or usage, intention, waiver or negligence, are questions of fact which must be specifically pleaded.

PLEADING (ORDER VI)

The whole object of pleadings is to bring parties to definite issues and to diminish expense and delay and to prevent surprise at the hearing. Pleadings is to ascertain the real disputes between the parties, to narrow down the area of conflict and to see where the two sides differ, to preclude one party from taking the other by surprise and to prevent miscarriage of justice.

In Virendra Kashinath v. Vinayak N. Joshi (1999) 1 SCC 47: the Supreme Court stated, “The object of the rule is twofold. First is to afford the other side intimation regarding the particular facts of his case so that they may be met by the other side. Second is to enable the court to determine what the issue between the parties is really.”

ORDER 6 deals with pleadings in general.

Rule 1 defines pleading

PLEADING: DEFINITION: RULE 1

“Pleading” is defined as plaint or written statement. A plaintiff’s pleading is his plaint, a statement of claim in which the plaintiff sets out his cause of action with all necessary particulars, and a defendant’s pleading is his written statement, a defence in which the defendant deals with every material fact alleged by the plaintiff in the plaint and also states any new facts which are in his favour, adding such legal objections as he wishes to take to the claim.

Rule 2 lays down the fundamental principles of pleadings.

BASIC RULES OF PLEADINGS: RULE 2

Sub rule (1) of Rule 2 lays down the fundamental principles of pleadings. It reads as under: 2(1). Every pleading shall contain, and contain only a 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. On analysis, the following general principles emerge:

  • Pleadings should state facts and not law;

The law of pleading may be tersely summarised in four words; “Plead facts not law.” Thus, existence of a custom or usage, intention, waiver or negligence, are questions of fact which must be specifically pleaded.

But a plea about maintainability of the suit raises a question of law and need not be pleaded.

  • The facts stated should be material facts;

it means, all those facts which must be proved in order to establish the plaintiff’s right to relief claimed in the plaint or the defendant’s defence in the written statement. There are distinction between ‘material facts’, ‘particulars’.

In Virender Nath v. Satpal Singh, (2007) 3 SCC 617 the Supreme Court said: ‘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. If a party omits to state material facts, it would mean that the plea has not been raised at all and the court will not allow the party to lead evidence of that fact at the trial, unless the court gives that party leave to amend his pleading. It has been held that a plaintiff, filing a suit on the basis of title, must state the nature of the deeds on which he relies in deducing his title. Similarly, a party relying upon the fact that the notice of dishonour is not necessary, or that the woman claiming maintenance has lost her right on account of her incontinence, or that the person who has signed the plaint in a suit by a corporate body has authority under the Code, is bound to allege those facts in his pleading.

  • Pleadings should not state the evidence;

The evidence of facts, as distinguished from the facts themselves, need not be pleaded. The facts are of two types:

  • Facta probanda—the facts required to be proved (material facts) ; and 
  • Facta probantia—the facts by means of which they are to be proved (particulars or evidence). The pleadings should contain only facta probanda and not facta probantia.
  • The facts should be stated in a concise form.

Defendant must know what case he has to meet. He cannot be kept guessing what the plaintiff wants to convey by a vague pleading. Therefore, the pleading must be precise, specific and unambiguous.

The words “in a concise form” are definitely suggestive of the fact that brevity should be adhered to while drafting pleadings. Virendra Kashinath v. Vinayak N. Joshi, (1999) 1 SCC 47

RULES 3 TO 13 REQUIRE THE PARTIES TO SUPPLY NECESSARY PARTICULARS.

Every pleading should be divided into paragraphs and sub­paragraphs. Each allegation should be contained in a separate paragraph. Dates, totals and numbers must be mentioned in figures as well as in words.

Rule 3 lays down that forms in Appendix A of the Code should be used where they are applicable; And where they are not applicable, forms of like character should be used. The facts must be pleaded with certainty. All material facts must be stated in a summary form, as briefly as the nature of the case requires. Immaterial averments and unnecessary details must be omitted and material allegations and necessary particulars must be included.

Rule 4 lays down that Wherever misrepresentation, fraud, breach of trust, wilful default or undue influence are pleaded in the pleadings, particulars with dates and items should be stated.

In Bishundeo Narain v. Seogeni Rai[1], the Supreme Court observed: “Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence.

Rule 4 has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. Therefore, if the particulars stated in the pleading are not sufficient and specific, the court should, before proceeding with the trial of the suit, insist upon the particulars, which give adequate notice to the other side of the case intended to be set up.[2]

Rule 6 The performance of a condition precedent need not be pleaded since it is implied in the pleadings. Non­-performance of a condition precedent, however, must be specifically and expressly pleaded.

Rule 7 Generally departure from 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 pleadings.

Rule 8 A bare denial of a contract by the opposite party will be construed only as a denial of factum of a contract and not the legality, validity or enforceability of such contract.

Rule 9 Documents need not be set out at length in the pleadings unless the words therein are material.

Rule 10 Wherever malice, fraudulent intention, knowledge or other condition of the mind of a person is material, it may be alleged in the pleading only as a fact without setting out the circumstances from which it is to be inferred. Such circumstances really constitute evidence in proof of material facts.

Rule 11 Whenever giving of notice to any person is necessary or a condition precedent, pleadings should only state regarding giving of such notice, without setting out the form or precise terms of such notice or the circumstances from which it is to be inferred, unless they are material.

Rule 12 Implied contracts or relations between persons may be alleged as a fact, and the series of letters, conversations and the circumstances from which they are to be inferred should be pleaded generally.

Rule 13 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.

RULES 14 AND 15 PROVIDE FOR SIGNING AND VERIFICATION OF PLEADINGS.

Rule 14 Every pleading should be signed by the party or one of the parties or by his pleader.

A party to the suit should supply his address. He should also supply address of the opposite party. Incomplete, false and fictitious address will have effect to strike down the defence of defence party and order of stay to the suit of petition party.

Rule 15 Every pleading should be verified on affidavit by the party or by one of the parties or by a person acquainted with the facts of the case

RULE 16 EMPOWERS A COURT TO STRIKE OUT UNNECESSARY PLEADINGS. Rule 16 A court may order striking out a pleading if it is unnecessary scandalous, frivolous, vexatious or tends to prejudice, embarrass or delay fair trial of the suit, or otherwise an abuse the process of the court.


[1] AIR 1951 SC 280

[2] Ladli Prashad v. Karnal Distillery Co. Ltd., supra, at p. 1288 (AIR)

Reference

Civil Procedure Code, 1908

Civil Procedure by C.K. Takwani