Institute of Legal Reasearch & Studies

Drafting, Pleading and Conveyancing

Topic-Pleading

Submitted By Submitted To:

Ramanuj Singh Dr. Madhulika Mishra
Student Faculty

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PLEADINGS

Stressed the need that the pleadings should be concised and to the point.
Therefore, it goes without saying that a successful lawyer should have the clear
grasp of principles of pleading. As per Order VI, Rule 1 of the First Schedule of
the Code of Civil Procedure, 1908, 'Pleading' means plaint or written statement.

Importance of Pleadings:

It is one of the important functions of an advocate. The importance of the art of

pleadings is obvious inasmuch as the whole case of a party depends upon how
skillfully it is drafted by an advocate. A great care should be exercised while
drafting the pleadings because if the pleadings are not properly framed the party
in question would be in a disadvantageous position.

The case of a party must be set out in his pleadings. The relief cannot be
claimed on the grounds which are not contained in the pleadings. Therefore, it is
essential to ensure that the specific pleadings setting out the material facts must
be given in the pleadings in order to claim the relief on that basis. The
immaterial or vague matter should be avoided and the pleadings should be
properly framed. It is the case which has been pleaded that has to be proved by
the concerned party and the verdict of the court cannot be given upon the
grounds not found in the pleadings of the party. [Mishrilal Sunder Lai v. State o
f M.P., 1986 MPLJ

Object of Pleadings:

The main object of the procedure of Pleading is to ensure that both Ike parties at
dispute should know the exact points of such dispute between them so as to
bring forward their own case and evidence to determine the issue. Odgers in his
Pleadings and Practice' observes:

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"The defendant is entitled to know what it is that the plaintiff alleges against
him, the plaintiff in his turn is entitled to know what defence will be raised in
answer to his claim. The defendant may dispute every statement made by the
plaintiff, or he may be prepared to prove other facts which put a different
complexion on the case. He may rely on a point of law or raise a cross-claim of
his own. In any event, before the trial comes on it is highly desirable that the
parties should know exactly what they are fighting about, otherwise they may
go to great expense in procuring evidence to prove at the trail facts which thier
opponents at once concede.

Fundamental Rules of Pleadings:

1.Facts and not Law-A pleader's duty is to set out the facts to be relied upon
and not the law or legal inferences. It is not enough to allege that the defendant
was guilty of misconduct. Facts regarding the conduct to be observed by the
defendant, misconduct of which is pleaded, is based, as also the facts which
constitute the misconduct in the plaintiffs opinion, a breach of that conduct
should be alleged. The court will examine and infer from them that the
defendant has been guilty of misconduct. The plaint should only state facts
leading to the cause of action against a defendant. Plaintiff is not required to
plead the law under which he claims a decree, as also it is not essential for the
defendant to mention points of law in the written statement. Pleading of facts is
necessary. It is well settled that the basis of the judgment cannot be the grounds
which have not been pleaded, it is necessary that the pleadings should be
specific and not vague. The plaint must contain the facts otherwise it will be
considered to be bad. In a case of breach of contract, the specific terms and
conditions agreed between the parties must be stated in the suit. The plaintiff
should allege how the breach has been committed by non-fulfillment of the such
and such conditions. Merely to state in the plaint that a breach of contract has

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been committed by the defendant will not suffice as it is the inference drawn by
the plaintiff.

2.Pleading of Material Facts.-This is another fundamental rule that pleading

should contain only material facts on which the Plaintiff and Defendant rely for
their respective cases. It means that all essential facts shall be alleged by the
parties for the claim and defence and not the irrelevant ones. Now the question
arises what facts constitute material facts. The words 'material facts' mean the
facts which are necessary and relevant and the concerned party must prove
those facts at the trial unless, of course, admitted by the opposite party. A
pleader, after listening to his client about the case must be able to decide as to
which facts are necessary to be narrated and which are not material and should
be omitted. A good lawyer should possess good knowledge of law and must
apply his common sense also to decide which necessary facts are to be pleaded
in order to achieve the decision of the court in favour of his client. It is pertinent
to mention here that according to Order VI, Rule 2, C.P.C. material facts are
required to be stated whereas under Order VI, Rule 4 particulars, wherever
necessary, are required to be given and there is a distinction between both the
above provisions. The specific act of the opposite party which amounts to
material fact necessarily be given before stating particulars. In any suit for
breach of contract, the plaintiff must state the period and date of delivery of
specific or ascertained goods and also his willingness to abide by his part of
contract. Thereafter, other relevant particulars including the details of goods,
quality and quantity etc.may be given.

In a case of defamation, plaintiff must state that the words or the act have been
maliciously published which are defamatory in nature and reflect to the
plaintiff. In the plaint, plaintiff must specify the actual words and the mode of
publication. These are the material facts which must be pleaded in a suit for
defamation.

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3. Pleading of material facts, not evidence.-Another important rule is that
where certain facts are relied upon, it will suffice to allege the same without
making a mention of such facts which form part of the evidence to prove the
allegations. Thus, the plaintiff is not required to come out with the evidence in
pleadings, which he will adduce at the trial to prove the facts and allegations.

The provision of Order VI, Rule 2 of the Code of Civil Procedure lays down
that -'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.

The main features which emerge from the above rules are that only material
facts should be alleged, the statement of material facts should be in brief and
that the evidence by which the allegations are to be sustained should not find
place in a pleading.

In a case where time is not the essence of the contract, it is enough to plead that
the work was executed within a reasonable time. There is no need of explaining
the delay i.e. the unfavourable weather or the worker's strike etc. which forms
evidence to prove that despite of all these odds, the work was executed within a
reasonable time. Such explanation is the evidence to prove that the time taken in
execution of the work was reasonable.

In a case where an employee has committed a fraud during the course of his
employment, it is sufficient to narrate the fact of committing the fraud but the
records which throw light in this behalf are not to be disclosed since these are
the documents by which the act of committing fraud will have to be proved.
These documents shall be used as evidence.

Where the point in issue is whether X in a business organisation is a partner of

Y. It would not be a good pleading to state that X shared the profits and/or
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contributed to the losses incurred in the business organisation. It is enough to
plead that X was a partner with Y in the same business organisation.

Admission is a form of evidence. It is not necessary to list out a large number of

letters which are considered material since they contained admissions.

Mental condition can be alleged as a material fact. Whenever, it is material to

allege malice, fraudulent intention, knowledge or other conditions 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 inferred. (Order VI, Rule 13,
C.P.C.]

Whenever 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. [Order VI, Rule 11, C.P.C.]

Whenever any contract or any relation between any person 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 letters, conversations or circumstances without
setting them out in detail. And if, in such a 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.
(Order VI, Rule 12, C.P.C.). For example, payment and acceptance of rent may
be an implied contract of tenancy.

References

1. Bharathakshemam v. Mangolodayam (P.) Ltd., 2004 (2) RCR (Civil) 68

(Kerala) (DB).

2. Lakshmikutty Amma v. Narayana Pillai,AIR 1968 Ker 57].

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3. Deochand v. Parvatibai,AIR 1952 Nag 115].

4. Ajmer Singhv. Moli, 1983v MPWN 336].

5. PLEADING DRAFTING & CONVEYANCING BY R.N. CHATURVEDI

6. Pleading Drafting And Conveyancing by Kant Mani, Kamal Publisher

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