Drafting of Pleadings - Principles, Rules and Practical Insights (Civil Litigation Drafting 2)
Pleadings are a fundamental aspect of civil litigation, as they form the basis on which a civil suit proceeds before the court. At the initial stage of practice, junior advocates often find it difficult to understand the rules governing pleadings and their correct application. A clear understanding and proper application of these rules is therefore essential, since any omission or improper pleading may adversely affect the conduct of the suit. Order VI, VII and VIII of the Code of Civil Procedure, 1908 deals with pleadings, and a civil litigation practitioner is required to carefully study and conform to the rules contained therein, as interpreted by judicial precedents. In this module, the provisions of Order VI are examined from a civil litigation perspective with the object of facilitating a practical understanding of the principles governing pleadings.
TABLE OF CONTENTS –
1.
Meaning
of Pleadings
1.1 Definition of Pleadings
1.2 Subsequent Pleadings
1.3 Scheme of Pleadings under the CPC
1.4 Plaint
1.5 Written Statement
1.6 Set-off
1.7 Counter-claim
2.
Importance
of Pleadings
3.
Interpretation
of Pleadings
4.
Fundamental Rules Relating to Pleadings
4.1 Material Facts (Order VI Rule 2)
4.2 Facts and Not Law
4.3 Concise and Precise Pleadings
4.4 Plead Facts, Not Evidence
4.5 Exceptions to the Rule of Pleading Material Facts
5.
Other
Rules Relating to Pleadings
5.1 Paragraphing and Form of Pleadings
5.2 Particulars in Certain Cases
5.3 No Departure from Pleadings
5.4 Denial of Contract
5.5 Effect of Documents
5.6 Pleading of Malice, Knowledge and Intention
5.7 Notice as Cause of Action
5.8 Implied Contracts or Relations
6.
Alternate
and Inconsistent Pleadings
7.
Forms of
Pleadings
(Order VI Rule 3 and Appendix A)
8.
Signing
and Verification of Pleadings
(Order VI Rules 14 and 15)
9.
Striking
Out of Pleadings
(Order VI Rule 16)
10. Amendment
of Pleadings
10.1 When Amendment Is Granted
10.2 When Amendment May Be Refused
10.3 Failure to Amend After Order (Order VI Rule 18)
11. Practical
Illustration
Essential Pleadings in a Suit for Specific Performance of an Agreement for Sale
of Immovable Property (Maharashtra)
12. Practical
Tips for Junior Lawyers
13. Conclusion
and Transition to Module 3 – Drafting of Plaint
The Code of Civil Procedure, 1908 (CPC) does not provide an exhaustive definition of the term pleadings. However, Order VI Rule 1 provides that pleadings shall mean the plaint (Order VII) and the written statement (Order VIII).
After
the defendant files the written statement, no further pleading can ordinarily
be filed by either party as a matter of right. Any pleading after the written
statement, except a defence to set-off or counter-claim, can be filed only with the leave
of the court. However, the court has the power, at any stage of the
proceedings, to direct any party to file a written statement or an additional
written statement and may fix a time, not exceeding thirty days, for filing the
same (Order VIII Rule 9).
1.3 Scheme of Pleadings under the CPC
The
scope of pleadings under the CPC is governed by Orders VI, VII and VIII. Order
VI lays down the general rules relating to pleadings, Order VII deals with
the plaint, and Order VIII deals with the written statement, including set-off
(Order VIII Rule 6) and counter-claim (Order VIII Rule 6A).
A
plaint is the pleading filed by the plaintiff to initiate a civil suit. It sets
out the facts showing how the plaintiff's rights have been violated by the
defendant and specifies the reliefs claimed. The plaint forms the foundation of
the civil suit.
A
written statement is the pleading filed by the defendant in reply to the
plaint. It contains the defendant's defence, including admissions, denials, and
explanations of the plaintiff's claims.
In a
suit for recovery of money, the defendant may plead a set-off in respect of an
ascertained sum of money legally recoverable by him from the plaintiff, not
exceeding the pecuniary jurisdiction of the court. A set-off has the effect of
a cross-suit, enabling the court to adjudicate both the original claim and the
claim of set-off in the same proceedings.
In
addition to his right to plead a set-off under Order VIII Rule 6, the defendant
may set up a counter-claim against the plaintiff in respect of any cause of
action accruing to him either before or after the filing of the suit, but
before the defendant has delivered his defence or before the time for delivering
his defence has expired. Such counter-claim shall have the effect of a
cross-suit.
1. In the absence of proper pleadings, any
evidence produced by the parties cannot be considered by the court. A party is
not permitted to travel beyond its pleadings, and therefore all necessary and
material facts in support of the case must be clearly pleaded at the outset.
2. The primary object of pleadings is to
enable the opposite party to know the exact case it has to meet. Pleadings must
contain sufficient factual particulars so that the claim or defence is clearly
disclosed and not based on vague or false assertions.
3. Pleadings serve to prevent surprise at the
stage of hearing or trial, as each party is made aware in advance of the case of
the other and can prepare its evidence accordingly.
4. Proper pleadings assist the court in
identifying the real points in controversy between the parties and in framing
clear and effective issues for trial.
5. Well-drafted pleadings help in conducting
the proceedings efficiently by limiting the scope of evidence and arguments to
the matters actually in dispute.
3. Interpretation of Pleadings
1. A pleading must be read as a whole and in
its entirety. It is not permissible to interpret a sentence or passage in isolation
without reference to the context of the entire pleading.
2. While interpreting pleadings, the court
must ascertain the substance of the case and the real controversy between the
parties, rather than adopt a narrow or technical approach.
3. However, the court cannot add to, subtract
from, or supply facts which are not pleaded. Liberal interpretation does not
dispense with the requirement of pleading material facts.
4. Fundamental Rules Relating to Pleadings
The
rules governing pleadings are primarily contained in Order VI of the CPC. These rules lay down
the fundamental principles which every civil pleading must follow. A clear
understanding of these principles is essential for proper drafting, as they
determine the scope of the dispute and the manner in which the case is
presented before the court.
4.1 Material Facts (Order VI Rule 2)
Rule 2
of Order VI has both affirmative and negative aspects. Affirmatively, every
pleading shall contain the material facts on which the party relies for its
claim or defence. Negatively, the pleading shall not state the law, nor shall
it contain the evidence by which the material facts are to be proved. Material
facts are those facts which must be alleged and proved in order to establish
the existence of a cause of action or a defence.
Parties
must plead facts and not law. Legal provisions or conclusions should not be
stated in pleadings. Where a point of law depends upon certain facts, those
facts must be specifically pleaded. Although a party cannot plead law, it may,
through its pleadings, raise a legal issue based on the pleaded facts.
4.3 Concise and Precise Pleadings
Every
pleading must contain, and contain only, a concise statement of the material
facts on which the party relies for its claim or defence. Only those facts
which are material to the claim or defence should be stated, and all
unnecessary or irrelevant matters should be omitted (Order VI Rule 2).
Evidence
by which the material facts pleaded are to be proved must not be stated in the
pleadings. Pleadings should be confined to facts alone, leaving the proof of
those facts to be established at the stage of evidence (Order VI Rule 2).
4.5 Exceptions to the Rule of Pleading Material Facts
The
general rule requiring pleading of material facts is subject to certain
exceptions:
(i) Conditions Precedent - An averment of
the performance or occurrence of all conditions precedent necessary for the
case of the plaintiff or defendant shall be implied and need not be
specifically pleaded (Order VI Rule 6).
(ii) Presumption of Law - A party need not
plead any material fact which the law presumes in its favour (Order VI Rule 13).
(iii) General Damages - The defendant need
not specifically deny allegations relating to general damages (Order VIII Rule 3).
What
constitutes material facts depends upon the facts and circumstances of each
case.
5. Other Rules Relating to Pleadings
Having
stated the fundamental principles relating to pleadings, the following are some
other important procedural rules
under Order VI which govern the form, content, and effect of pleadings in civil
proceedings.
5.1 Paragraphing and Form of Pleadings
Every
pleading shall be divided into consecutively numbered paragraphs, and dates, sums,
and numbers shall be expressed in figures as well as in words (Order VI Rules 2(2) and 2(3)). Where
applicable, the forms provided in Appendix
A to the CPC shall be used (Order VI
Rule 3).
5.2 Particulars in Certain Cases
Where
particulars are required, such as in cases involving fraud, misrepresentation,
undue influence, or similar allegations, full particulars must be specifically
stated in the pleading (Order VI Rule 4).
5.3 No Departure from Pleadings
After
pleadings are complete, parties are not permitted to depart from the grounds
taken or to raise any new or inconsistent case, except by way of amendment
permitted by law (Order VI Rule 7).
A mere
denial of a contract is construed only as a denial of its execution or existence
and not as a denial of its legality or sufficiency in law (Order VI Rule 8).
Where
documents are relied upon, it is sufficient to state their effect concisely
without setting out the whole or any part thereof, unless the precise words are
material (Order VI Rule 9).
5.6 Pleading of Malice, Knowledge and Intention
Where
reliance is placed on malice, fraudulent intention, knowledge, or similar
states of mind as grounds of attack or defence, such facts must be specifically
pleaded (Order VI Rule 10).
When
notice constitutes a part of the cause of action, it must be specifically
pleaded as a fact (Order VI Rule 11).
5.8 Implied Contracts or Relations
Where
any contract or legal relationship is sought to be implied from a series of
letters, conversations, or circumstances, such contract or relationship must be
expressly pleaded as a fact (Order VI
Rule 12).
6. Alternate and Inconsistent Pleadings
1.
A plaintiff is permitted to rely upon
several different rights in the alternative, even though such rights may appear
to be inconsistent with each other. Similarly, a defendant may raise multiple
distinct and separate defences, including alternative or inconsistent defences,
as he considers appropriate for resisting the claim.
2.
Order
VII Rule 8
and Order VIII Rule 7 require that
the grounds of alternative claims or defences be stated separately. The Code
does not prohibit a party from making two or more inconsistent sets of
allegations or from claiming reliefs in the alternative. However, it must be
shown that each of the alternative reliefs claimed is legally maintainable.
While a defendant may take inconsistent pleas, such pleas cannot be mutually
destructive in nature.
Order
VI Rule 3 of the CPC provides that the forms
prescribed in Appendix A shall be
used for pleadings wherever they are applicable. Where no specific form is
provided, pleadings should be drafted in forms of a similar nature, as nearly
as possible, to the prescribed forms.
Appendix
A contains model formats for civil pleadings, including the title of the suit,
description of parties, and sample forms of plaints and written statements for
different types of civil suits. These forms act as a practical guide to ensure
that pleadings are drafted in a clear, uniform, and legally acceptable manner.
8. Signing and Verification of Pleadings
8.1 Signing of Pleadings (Order VI Rule 14)
Every
pleading shall be signed by the party and by his pleader, if any. Where a party
is, due to absence or for any other sufficient cause, unable to sign the
pleading, it may be signed by any person duly authorised by the party to do so.
8.2 Verification of Pleadings (Order VI Rule 15)
Every
pleading shall be verified at the foot by the party, or by one of the parties,
or by any other person who is proved to the satisfaction of the court to be
acquainted with the facts of the case. The person verifying the pleading shall
specify, with reference to the numbered paragraphs, which statements are true
to his own knowledge and which are based on information received and believed
to be true. The verification shall be signed by the person making it and shall
state the date and place at which it is made.
The
court may, at any stage of the proceedings, order any matter in a pleading to
be struck out or amended if it is unnecessary, scandalous, frivolous, or
vexatious, or if it tends to prejudice, embarrass, or delay the fair trial of
the suit, or is otherwise an abuse of the process of the court. The purpose of
this power is to ensure that pleadings remain confined to relevant issues and
that the proceedings are conducted in a fair and orderly manner (Order VI Rule
16).
The law
permits amendment of pleadings to allow necessary corrections or additions,
subject to the discretion of the court, for effective adjudication of the
dispute. If any addition or alteration in the pleadings is required, either
party may apply for amendment under Order
VI Rule 17 of the Code of Civil Procedure, 1908. Alternatively, an
additional pleading may be filed under Order
VIII Rule 9 with the leave of the court. Under Order VI Rule 17, the court
may, at any stage of the proceedings, allow either party to alter or amend its
pleadings in such manner and on such terms as may be just, provided such
amendment is necessary for determining the real questions in controversy
between the parties.
The
general power of the court to amend any defect or error in any proceedings in a
suit is contained in Section 153 of the
CPC, whereas Order VI Rule 17
specifically governs amendments to pleadings. An amendment of pleadings may be
permitted even at the appellate stage, including the first or second appeal, if
the amendment is bona fide, relevant, and necessary for the effective
adjudication of the rights of the parties. However, the grant of such leave is
always subject to the discretion of the court and the conditions imposed by
law.
10.1 When Amendment Is Granted
1.
As per Order VI Rule 17 of the CPC, an
application for amendment of pleadings should ordinarily be allowed, provided
the proposed amendment does not change the nature or character of the suit or
cause irreparable prejudice to the opposite party. An amendment should not
substitute a completely new cause of action on which the original suit was not
founded.
2. Generally, amendments are permissible when
they are necessary for determining the real questions in controversy between
the parties and for effective adjudication of the dispute.
3.
Substitution of one cause of action for
another, change in the subject matter of the suit, or alteration of the
fundamental nature of the claim or defence is ordinarily not permissible.
4. Introduction of inconsistent or
contradictory allegations by way of amendment, which negate an admitted
position of fact or are mutually destructive, is not permissible. However,
inconsistent pleas based on the same admitted facts may be allowed.
5.
An amendment should not cause such
prejudice to the opposite party as cannot be compensated by costs.
6. An amendment introducing a claim or relief
which is barred by limitation should ordinarily not be allowed, as it would defeat
a legal right accrued to the opposite party by lapse of time, unless special
circumstances of the case justify such amendment.
7. An application for amendment should not be
rejected merely because of an error or mistake in the original pleading,
provided such error is not fraudulent and the amendment is not sought as a
device to delay the proceedings.
10.2 When Amendment May Be Refused
The
court may refuse to allow an amendment of pleadings in the following
circumstances:
1. Where the amendment is not necessary for
determining the real questions in controversy between the parties.
2. Where the proposed amendment introduces a
completely new, inconsistent, or contradictory case, or changes the fundamental
character of the suit or defence.
3.
Where the effect of the amendment is to
take away a legal right that has accrued to the opposite party by reason of
lapse of time.
4.
Where the application for amendment is not
bona fide or is made with an ulterior motive.
5. Where there has been unconscionable delay
or gross laches in seeking the amendment.
10.3 Failure to Amend After Order
Where a
party has been granted permission to amend its pleadings but fails to carry out
the amendment within the time fixed by the court, such party shall not be permitted
to amend after the expiry of that time. If no time is fixed by the court, the
amendment must be carried out within fourteen days from the date of the order.
However, the court may, in appropriate cases, extend the time for carrying out
the amendment (Order VI Rule 18).
In a
suit for specific performance of an agreement for sale of immovable property,
with a prayer for execution of the sale deed and delivery of possession, the
plaint must contain a specific averment that the plaintiff has been
continuously ready and willing to perform his part of the contract from the
date of the agreement till the date of hearing, failing which the suit is
liable to be dismissed, as the burden lies on the plaintiff to both plead and
prove such readiness and willingness if the same is disputed. However, where
the pleadings and evidence establish that the entire sale consideration has
been paid by the plaintiff, the absence of a specific averment of readiness and
willingness may not be fatal, since by payment of the full consideration the plaintiff
has already performed all obligations under the contract, rendering such
averment redundant; nevertheless, as a matter of prudent drafting practice in
Maharashtra, the plaint should also disclose the plaintiff's conduct, absence
of delay or laches, and compliance with limitation and other statutory
requirements, as relief of specific performance is discretionary and equitable
in nature.
12. Practical Tips for Junior Lawyers
1. Skill in drafting pleadings is developed
primarily through regular practice and experience; however, such skill must be
supported by a thorough understanding of the rules of pleadings contained in
Order VI of the Code of Civil Procedure, 1908.
2. Junior advocates should make it a habit to
collect, study, and preserve well-drafted pleadings across different types of
civil suits, as this helps in understanding structure, language, and
presentation of material facts.
3. Sample drafts should not be followed
mechanically. Every pleading must be drafted after careful reading of
documents, proper understanding of the facts, and conscious application of the
principles of pleadings relevant to the case.
13. Conclusion and Transition to Module 3 -- Drafting
of Plaint
This
module has examined the fundamental principles, rules, and practical aspects
governing pleadings under the Code of Civil Procedure, 1908. A clear
understanding of these principles is essential for effective civil litigation
drafting, as pleadings define the scope of the dispute and guide the course of
the suit. Module 3 will focus on the
drafting of a plaint, dealing with its structure, mandatory pleadings, and
practical drafting considerations in civil suits.
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