JAI NARAIN VYAS UNIVERSITY

JODHPUR

TOPIC- GENERAL PRINCIPLES OF PLEADING

SUBJECT:
DRAFTING, PLEADING CONVEYANCING

SUBMITTED TO : SUBMITTED BY :
Prof. KULDEEP PUROHIT SOURABH PAREEK
B.A.LL.B. IX Semester
Roll No. 18BAL50059
 ACKNOWLEDGEMENT
It gives me immense pleasure in expressing my deep gratitude to Dr.
CHANDAN BALA MA'AM Dean, Jai Narain Vyas University,
Jodhpur, who provided me a platform to reveal my creativity. I
would like to extend my heartiest thanks to Dr. KULDEEP
PUROHIT my adored Professor in DRAFTING, PLEADING
CONVEYANCING for his valuable guidance throughout the work
on the topic and making it successful. I am thankful to my brother,
sister and my friends who directly or indirectly helped me through.
My gratitude to my beloved parents, whose constant encouragement
and support has helped me in completing my project in scheduled
period. With honour and regards.
 TABEL OF CONTENTS

INTRODUCTION...............................................................................4

GENERAL PRINCIPLES OF PLEADING........................................5

FUNDAMENTALRULES OF PLEADING......................................5-8

ALTERNATIVE AND INCONSISTENT PLEADINGS & STRIKING

OUT
PLEADINGS......................................................................................8-9

AMENDMENTS IN PLEADINGS................................................9-15

BIBLIOGRAPHY…..........................................................................16
INTRODUCTION:
Pleading is an art, of course, and art which requires not only technical
and linguistic skill but also an expert knowledge of the law on the
given point brought before a lawyer. Even experienced lawyers and
attorneys are not infallible and sometimes they also make mistakes.
However, in the matter of pleadings longer experience and a great
linguistic acumen are both essential ingredients. What ultimately
matters is how clearly and systematically have the facts been presented
before the court of law.
"Pleadings, Drafting, and Conveyancing" (PDC) has been made a
compulsory practical subject forming part the curriculum of the Law
Course in India. It envisages, inter alia, drafting of Civil Pleadings;
Criminal complaints and other proceeding Writ Petition, Appeal-Civil,
Criminal and Writ; Revisions-Civil and Criminal, Reviews, Writ
Appeals- Civil and Criminal, and also Special Leave Petition;
Contempt Petition, Interlocutory Applications, etc. A student who
acquires the requisite knowledge, perfection and proficiency in drafting
of these matters, shall undoubtedly become a perfect legal professional.
He will be an asset in the legal world It is a matter of common
knowledge that when a person comes to seek the assistance of the court
of law in any matter, he has to prepare a statement of his claims, and
the facts on which such claims are founded. Such statements fully
drawn up, setting out all contentions, are called "pleadings". Thus
pleadings are the foundation of all sorts of litigation; no judicial system
in the world can do justice in any matter unless and until the court of
justice is fully aware as to the claims and contentions of the plaintiff
and of the counter claims and defenses of the defendant.
 GENERAL PRINCIPLES OF PLEADING
Order VI of the Code deals with the Pleadings. According to Rule 1, Pleading means plaint or
written statement. According to P. C. Mogha, pleading are statements in writing draw up and
filed by each party to a case stating what his contention will be at trial and giving all such
details as his opponents needs to know for his defence.
Plaint

Pleading
Written Statement

This rule declares that the pleading are the plaint filed by the plaintiff and the written statement
filed by the defendant and thus the stage of pleading would mean the institution of plaint till
the submission of a written statement.
Therefore, pleading are statement of parties to communicate their contention to be adjudicated
in trial. This process is the primary process in the Civil Procedure.
Object of Pleading: The object of pleading was explained by the Supreme Court in Ganesh
Trading Co. v. Moji Ram, AIR 1978 SC 484. Pleading has following objects:
a) To give each side, intimation of the case of the other so that they are not taken by
surprise.
b) To enable the court to determine the issues between the parties.
c) To diminish expenses and delay in conduct of suits.

In Thorp v. Holdsworth the court held that the whole object of pleading is to narrow down
parties to definite issues.

Fundamental rule of Pleading

Order VI Rule 2 lays down fundamental principle of pleading. This rule provides for the
general caution a litigant has to exercise while drafting his pleading and is thus known as the
golden rule of pleading. It provides that:
1. Every pleading must contain only material facts on which the party pleading relies i.e.
unnecessary facts having no bearing upon the cause of action must not be stated (also
known as Facta Probanda). It is for the court to apply the law to the facts pleaded.
Thus, existence of any custom or usage is question of fact and it must be pleaded but a
plea about maintainability of suit raises question of law and need not be pleaded.
However, a mixed question of fact and law should be specifically pleaded. Rule 13
further provides
 that presumption raised in one’s favour is not required to be pleaded as these are
matter of evidences.
2. The pleading must not contain any evidence of the facts, by which they would be
proved, which is required only after settlement of issues (also known as Facta
Probantia). The expression ‘material facts’ is not defined in the court. In the case of
Udhav Singh v. Madhav Rao Scindia, the Supreme Court defined the expression as
‘all the primary facts which must be proved at the trial by a party to establish the
existence of the cause of action or his defence’. In Virendra Nath v. Satpal Singh, the
Supreme Court held that material facts are those facts upon which a party relies for his
claim or defence. Plaintiff’s cause of action and defendant’s defence depends on
material facts. These facts are to be distinguished from a particular which only provides
the details of the case. Their purpose is to amplify, refine and embellish material facts.
Rule 4 provides the cases in which particulars are to be given. It provides that all
necessary particulars like misrepresentation, fraud, and breach of trust, wilful default or
undue influence must be stated in the pleadings. The pleading should contain facta
probanda and not facta probantia [Virendra Nath v. Satpal Singh, AIR 2007 SC 581].
3. The pleading of the parties must not state any law through which such facts must be
appraised by the court, but a mixed question of law and fact may be stated in the
pleadings5.
4. That all such material facts must be stated in concise form i.e. in brief and to the point,
further it is provided that, every pleading shall be divided into paragraphs, numbers
consecutively and every allegations should be contained in separate paragraphs. Dates,
sums and numbers should be expressed in figures as well as in words.
Form of Pleading [Rule 3]- The Code also provides the form of pleading in Appendix A of
the Code.
Construction of pleading- It is a settled law that the pleadings should be construed liberally. It
is the duty of the court to interpret pleading liberally having regard to the substance of the
matter. In Madan Gopal v. Mamraj Maniram the Supreme Court held that courts should not
scrutinize pleadings in such manner that it results in defeating of genuine claim on trivial
grounds.
Rule 6: Condition Precedent- 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
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.
Rule 7: Departure- No subsequent pleading shall contain any new ground of claim or contain
any inconsistent fact to the previous pleading except by way of amendment under Rule 17.
Rule 8: Denial of Contract- It provides that, a bare denial of a contract alleged by the opposite
party shall be construed. Denial of facts of contract and the legality or sufficiency in law of
such a contract must be specifically denied.
Rule 9: Effect of document to be stated- Wherever the contents of any 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.
Rule 10: Malice, Knowledge, etc- Wherever it is material to allege malice, fraudulent
intention, knowledge or other condition of the mind of any person, it shall be sufficient to
allege the same as a fact without setting out the circumstances from which the same is to be
inferred.
Rule 11: Notice- Wherever it is material to allege notice to any person of any fact, matter or
thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms
of such notice, or the circumstances from which such notice is to be inferred are material.
Rule 12: Implied contract or relation- Wherever any contract or any relation between any
persons is to be implied from a series of letters or conversations or otherwise from a number of
circumstances it shall be sufficient to allege such contract or relation as a fact, and to refer
generally to such letter, conversations or circumstances without setting them out in detail. And
if in such case the person so pleading desires to rely in the alternative upon more contracts or
relations than one as to be implied from such circumstances, he may state the same in the
alternative.
Rule 13: Presumption of law- Facts which the law presumes in favour of a party or as to
whom the burden of proof lies on the other side need not be pleaded unless first denied. For
e.g. when plaintiff sues only on the bill of exchange he doesn’t need to plead consideration
unless it is denied.
Rule 14: Pleading to be signed- This rule talks about the requirement of signature so as to
take the responsibility of the facts being stated ny the litigant in his pleading. Pleading shall be
signed by the party (litigant) or by a duly authorized agent, who is authorized by the party to
sign as such.
The pleading shall also be signed by the pleader of the party, if engaged.

Rule 14A: Address for service of notice- This rule, in simple language, requires for the
mention of the addresses of the parties in the pleadings and other formalities and actions that
need to be taken by the parties during the entire suit.
It provides that, the address be called a registered address and its change must be duly given
notice of, as the summons or any other process will be affected upon such addressee.
Any defect in such addresses may lead to stay of the suit or striking out of defence, as the case
may be, after which only an application to set-aside such stay or striking may be given.
Rule 15: Verification of pleadings- Every pleading when writing and signed as required, must
be verified at the foot of the plaint or written statement i.e. after the signature of the party, and
if there are more than one party then it must be verified by any one of the parties. The pleading
may also be verified by any person to be acquainted with the facts stated in the pleadings.
Acquaintance here would mean having the knowledge of facts. Such person verifying must be
proved to the satisfaction of the court that he is so acquainted.
Furthermore, the rules provide for, the manner in which the verification shall be written i.e.,
i. It shall specify by paragraph and numbers of the pleadings, of which the party knew
and of which it has reason to believe on the information received, and
ii. It must also state the date and the place on which the signature is placed for
verification.
Another important requirement of the pleadings is that it must be duly supported by an
affidavit of the person verifying.

Alternative and Inconsistent Pleadings & Striking out Pleadings

Meaning of alternative and inconsistent pleadings- The expression ‘alternative’ means the one
or the other of two things. A party to litigation may include in his pleadings two or more set of
facts and claim relief in the alternative. Inconsistent, on the other hand, means mutually
repugnant, contradictory or irreconcilable. Acceptance or establishment of one necessarily
implies abrogation or abandonment of the other.
In Re Morgan, (1887) LR 35 Ch D 492 (CA), the court observed that the plaintiffs may rely
upon several different reliefs in the alternative. Similarly the defendants can also raise several
defences in the alternative. For instance, a suit for possession is maintainable on the basis of
title or in the alternative, on the basis of lease. In Firm Sriniwas Ram Kumar v. Mahabir
Prasad, the Supreme Court held that object of allowing alternative pleadings is to obviate the
necessity of another set of litigations and to decide all the controversy in one litigation.
As regards inconsistent pleadings, the Code does not prohibit a party from making two or more
inconsistent set of allegations. A plaintiff may rely on several different rights alternatively,
although they may be inconsistent. Defendants may also raise by his statement of defence,
without the leave of court, as many distinct and separate inconsistent defences as he may think
proper. Inconsistent pleas are permissible but they are seen with suspicion by the court. Party
who tries to establish both the inconsistent pleas places himself in peril of adducing mutually
contradictory and destructive evidence. It must be remembered that the party cannot be
allowed to approbate and reprobate at the same time.
When such pleading may be refused: The Court may not allow such pleadings in following
cases:

(i) where such pleading delay or embarrass fair trial [Rule 16].

(ii) such a plea is not maintainable by law.

(iii) where a party has taken up a definite stand once and the court has given a decision on
that footing.

Rule 16: Striking out pleadings- The power provided under this rule may be exercised by the
court either suo motu or on the application of any of the parties. The striking out here means
that the paragraphs will not read as the part of the pleadings and thus no evidence shall be
given to its proof. This striking out may be ordered at any stage of the proceedings. Q. When
compulsory amendment will be allowed?
Order VI Rule 16: The court will allow striking out or amending certain matters in any
pleading which are as follows:
i. Which may be unnecessary, scandalous, frivolous or vexatious, or
ii. Which may tend to prejudice, embarrass or delay the fair trial or otherwise an abuse of
the process of the court.

This is also called a compulsory amendment. However, it is an exception to normal practice

that a court cannot direct parties as to how they should prepare their pleadings. The power to
strike out pleadings is extraordinary in nature and must be exercised by the court sparingly and
with extreme care, caution and circumspection.

AMENDMENT OF PLEADINGS
Order VI Rule 17 specifically provides for amendments of pleadings by the parties. According
to this rule, the court may allow any party to a suit to amend his pleading as may be just for the
purpose of determining the real question in dispute between the parties. This power is
discretionary which must be exercised in a sound manner.
As per Mulla, there are five different situations which provides occasion for amendments under
CPC.
1. Section 152: Amendment of Judgement, Decree and Orders
2. Section 153: General Power to amend at any time to determine real issue.
3. Order I R. 10(2): Striking out or adding parties.

4. Order VI R. 16: Compulsory amendment i.e. amending your opponent’s pleading.

 5. Order VI Rule 17: Amending your own pleading.

Basic objects behind allowing of amendment

The court should get at and tried the merits of the case that come before them and all
amendments that may be necessary for determining the real question and controversies should
be allowed provided that it can be done without causing injustice to the other side and the relief
claimed is within the period of limitation. The court exists for doing complete justice between
the parties and not for punishing them. Thus, they have power to grant amendments of
pleadings in the larger interest of justice but this power given to the court is entirely
discretionary.
Before allowing an amendment a court should consider the following four points:

1. Interest of justice
2. Determination of real question in controversy between the parties.
3. Necessary to prevent multiplicity of suits.
4. Party exercise due diligence

Above consideration has to be taken into account while deciding the question of amendment of
pleading.
The court has held time and again that any pleading can be amended and the court will see
whether the other party can be compensated by cost or not. If answer is yes, it can be allowed.
In other words, as per Order VI Rule 17 either party can alter his pleading with the permission
of the court and as per the rule court will be little restrictive in allowing the amendment after
the commencement of trial unless the court is of the opinion that in spite of due diligence this
court not have been raised before commencement of trial and whether the parties acted with
due diligence or not depends on facts and circumstance of each case.
The court explaining due diligence in Chandrakanta Bansal v. Rajinder Singh Anand, (2008)
5 SCC 117, the court said due diligence means a reasonable diligence which a prudent man
would exercise in the conduct of his own affairs. It is clear that mere action can’t be accepted
unless the party takes prompt steps and file a petition after the commencement of the trial.
In other words during intervening period of framing of issues and date fixed for evidence, trial
does not commence and in such a situation Proviso to Order VI Rule 17 shall not apply.
Now again question arose as such to what is the stage of allowing of such amendment- Rule 17
provides that amendment of pleading can be allowed at any stage of the proceeding. As in
Bakshi Singh v. Prithvi Raj Singh, AIR 1995 SC, the court said that amendment of pleading
can be granted at any stage of the proceedings either before or after trial or even at the
appellate stage.
After this decision, there was an amendment in C.P.C. which has been enforced in 2002; a
rider is put upon the power of the court.
Now Question arose, Whether according to this Proviso amendment will be allowed after
commencement of trial or not?
On this point, Proviso to Rule 17 itself mention that the court should not allow amendment
after the commencement of trial unless it comes to the conclusion that despite due diligence,
the matter could not have been raised by the party before such commencement. In Baldev
Singh and Ors.v. Manohar Singh and Another, (2006) 6 SCC 498, it was observed that
courts are inclined to be more liberal in allowing amendment of written statement than of
plaint. According to the court, Order VI Rule 17, including the proviso, is a procedural
provision relating to amendment of plaint or written statement and the limitations in respect
thereof and, therefore, the same should be interpreted to advance and not retard or defeat
justice.
The court even reiterated however negligent or careless may have been the first omission and
howsoever late, the proposed amendment should be allowed, if it can be made without injustice
with other side and there is no injustice if the other side is compensated by cost.
If the amendment would convert the suit or defence into another one of a different character
then such an amendment will not be permitted.
Order VI Rule 17 talks of Amendment of Pleadings. It does not talk about substitution of cause
of action; there Order VIII Rule 9 operates i.e. subsequent pleading. Defendant can had an
existing pleading a new defence but he cannot change the earlier one by way of amendment so
as to cause the prejudice to other party or to substitute cause of action or character of the suits.
Rule 17: Amendment of Pleadings- This rule provides wide discretionary power to the court
to allow either party to amend its pleading (plaint & written statement), of which the purpose
would always be to introduce the matters to determine the real questions in controversy, which
means that all such amendments that enables a court to try the suits in its merits, being the only
purpose of trial, must be allowed by the court. The motive is to further the ‘interest of justice’
and to prevent the ‘multiplicity of proceedings’.
It is provided that this amendment must be asked for and granted at any stage of proceedings
but before commencement of trial, however, it is a general rule subjected to the proviso, which
says that if the amendment is asked after such period, then it will not be granted unless the
party seeking amendment proves that he could not demand such relief before the
commencement of the trial in spite of due-diligence.
The seeking of this relief although being a right of the parties is discretionary upon the court to
grant. Thus, the court has to exercise its discretion guided by the sound judicial principles and
upon facts and circumstance of each case.
Following are the general guidelines that the court may assess before using its discretion:
 i. All amendments will be generally permissible when they are necessary for
determination of the real question of controversy in the suit.
ii. Substitution of one cause of action or the nature of the claim for another in the original
plaint or change of the subject matter or controversy in the suit is not permissible.
iii. Introduction by amendment of inconsistent or contradictory allegation in negation of
the admitted position of facts, or mutually destructive allegation of facts are also
impermissible though inconsistent pleas on the admitted position can be introduced by
ways of amendment. iv. In general, the amendment should not prejudice the other side
which cannot be compensated in cost.
v. Amendment of a claim or relief which is barred by limitation when the amendment is
sought to be made should not be allowed to defeat a legal right accrued by the other
party except when such consideration is outweighed by the special circumstances of the
case.
It is also called voluntary amendment.

Circumstances when amendment is allowed:

Amendment will be allowed:
I. If it is necessary for the purpose of determining the real question in controversy
between the parties. In Rajesh Kumar Aggarwal v. K.K. Modi, the Supreme Court
held that courts should allow all amendments that may be necessary for determining
real questions of controversy between the parties provided it does not cause prejudice
to the other party.
II. If the amendment does not cause injustice to the other side.
III. If the amendment subserves the ultimate cause of justice and avoids further litigation.

Amendment not allowed:

I. If change in the subject matter or controversy in the suit.

II. Inconsistent or contradictory allegation in negation of admitted facts or mutually
destructive allegation of facts.
 III. Amendment should not be prejudiced to the other side which cannot be compensated
in cost.
IV. Amendment of a claim or relief is barred by limitation then it should not be allowed so
as to defeat a legal right accrued by the other party, except so in special circumstances.
V. Not allowed which results in defeating a legal right to the opposite party on account of
lapse of time.

In Venture Global Engineering v. Satyam Computer Services, AIR 2010 SC- The Court said two
thing in this case.
1. In deciding amendments the court should prefer substance to form and techniques.
[substance is important, form is not]
2. Interest of justice must be paramount consideration.

In Estrella Rubber v. Dass Estate, AIR 2010 SC- Delay in making an application for
amendment may be a ground for doubting the genuineness but not a good ground for refusing
the application.
Observation of the Court-

First: The Court is more liberal in accepting amendments of written statements than that of
plaint. This is due to the reason that the plaint is the basis of cause of action.
Second: The case laws of recent times indicates that a court have been taken liberal view of
amendment and as a general rule amendments are allowed unless they cause injustice to the
other party which cannot be compensated in terms of money or they are mala fide or they take
away vested rights accrued to the other party.
Situations when amendment of pleadings may be refused

Following are the situations when amendment of pleading may be refused:

1. When the amendment is not necessary for the purpose of determining the real question
in controversy between the parties. This principle is well illustrated in Eduvion v.
Cohen (1889) 43 CD 187, 190. In that case B and C wrongfully removed A’s furniture.
After that A files a case against one of joint tortfeasor and get a judgement against him.
Now, again A sued another Joint Tortfeasor. After A’s evidence was over, C wants to
seek for amendment of pleading whereby he asks for judgement in the first case. The
application
 for seeking the amendment of pleading can be rejected because it was not necessary to
determine the real question in controversy between the parties.
2. Where the plaintiff suits should be wholly displaced by proposed amendments- To
understand this Steward v. The North Metropolitan Tramway Corporation (1886) 16
QB 178 (CA). Here plaintiff sues Tramway Corporation for negligence caused by them
in keeping Tramway. The company denied negligence and company does not plea that
it was not the proper party. Six Months after filing of written statement company
applied for amendment for adding a plea that by a contract local authority and not the
company was required to maintain the Tramway and so it should be filed against local
authority. The court did not allowed this amendment and said plaintiff’s remedy against
the local authority is time-barred now.
3. When the amendment takes away a legal right accrued by lapse of time. This is well
illustrated in the case of Weldon v. Neal (1887) 19 QB 394 (CA). In this case suit was
filed for damages for slander and then it was leave application for amendment to claim
for assault or false imprisonment. Now the fact is this claim for assault or false
imprisonment is time barred on the date of leave application but it was not time barred
on the date of the suit.
4. When amendment introduces a totally different and new inconsistent case. This point is
well illustrated in P.A. Ibrahim Ahmad v. F.C.I (1999) SC that the general rule by
allowing amendment of pleading. Party should not be allowed to setup a new cause of
action and that the parties cannot be allowed to completely change a case. In this case
earlier petition was the case is decided by an arbitrator. Now, he went to amend the
application and convert it as a suit and praying of the recovery of a sum of Rs. 1, 74,
667 from the arbitrator. The court not allowed for amendment because it would
introduce totally a new cause of action and change the nature of suit.
5. When application for amendment is not made in good faith- So amendment will not
allowed if the applicant is acting mala fide. In other words, if it is not made in good
faith, amendment will be refused.
In Basavan Jaggu Dhobi v. Suknandan Ramdas Choudhary, defendant initially says
he was a joint tenant. Subsequently he submitted that he was a licencee for monetary
 consideration who was a deemed tenant as per provision of Section 15 A of Bombay
(Rent, housing, lodging and Contract) Act. The court said defendant has validly taken
such an inconsistent plea. The court also said by this inconsistent plea cause of action is
not affected. In many cases the courts are more generous in allowing amendments of
written statements as the question of prejudice is less likely to operate in that event.
Approach of the Court: While considering the amendment applications the courts should not
adopt hyper technical approach. In Haridas Alidas Maniharlal v. National Building Co., AIR
1969 SC 171, Supreme Court said that the court should be extremely liberal in granting prayer
of amendment unless serious injustice or irreparable loss is caused to the other side. Merits of
the amendment sought to be incorporated should not judged at the stage of allowing the prayer
for amendment [Usha Devi v. Rijwan Ahmad, (2008) 3 SCC 717].
In B.K.N. Pillai v. P. Pillai, (2000) 1 SCC 712, the apex court has held that delay on its own,
untouched by fraud is not ground for rejecting the application for amendment.
In Venture Global Engineering v. Satyam Computers, AIR 2010 SC 3371, the Court held that
if a party is entitled to amend its pleading, then the right to amend cannot be defeated just
because a wrong section or a wrong provision has been quoted in the amendment petition.
Rule 18: Failure to amend after order- Where a pleader after obtaining leave to amend does
not amend his pleading within the time specified or within 14 days (when no time is specified),
he shall not be permitted after such time to amend his pleading unless a time is extended by the
court, in regards to the facts and circumstances of the case.
 BIBLIOGRAPHY

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