Definition and fundamental rules of pleading under the CPC, 1908

By | November 3, 2019
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The present article endeavours to understand the definition of the word pleading and the fundamental rules that law requires to be conformed to while drafting pleadings.

Abstract

Pleading is a very essential concept in any legal jurisprudence. It is the way by which parties to a dispute tell their case to the court and to the adverse party. Pleading is very generally defined as ‘a plaint or a written statement’ but it includes the criminal complaint and FIR as well.

The present article endeavours to understand the definition of the word pleading and the fundamental rules that law requires to be conformed to while drafting pleadings. The article shall also explain, briefly, the non-fundamental rules, i.e. other rules of pleading which are essential though not fundamental.

Introduction

The term ‘plead’ means to request or ask for something in a polite and humble manner. Now, such request can be made orally or in written or in any other form that signifies a request being made by one before another person or entity which is in a position to grant that request. The contents of such request, in general, is called pleading.

For instance, two kids A and B are fighting and A complaints to his teacher that B hit A and injured him. Everything that A tells to his teacher as to where was the fight, at what time, for what reason, etc. amounts to A’s pleadings. Further, when B is called to justify his actions, everything that B says in his defence and/or puts any allegations or counterclaims against B are A’s pleadings.

Thus, pleadings are those information, data or momentous facts which are vital to be asserted in order to put forward a cause or to establish a defence in a proceeding.

What is Pleading?

Order 6 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter ‘CPC’) defines pleadings as “plaint or written statement”[1]. Plaint is the document submitted by the plaintiff, i.e. the aggrieved party who states the material facts, reasons for filing the suit and what remedy or relief the aggrieved person is claiming through the legal proceedings. On the other hand, the written statement is a reply to the plaint wherein the defendant, i.e. the opposing party against whom claims are being made by the plaintiff.

According to Mogha, “pleadings are statements in writing drawn up and filed by each party to a case, stating what his contentions will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer”[2].

Pleadings contain claims by the plaintiff, counterclaims by the defendant, questions and answers and everything that is essential to lead the case to a certain end. Any ground or fact not mentioned in the pleadings cannot be used or relied upon by the parties in court during the judicial proceedings.

In Devki Nandan v. Murlidhar[3], the Supreme Court held that a finding of the court, i.e. any point of determination established by the court is null and void if it is based on materials not mentioned in the pleadings. Therefore, pleading is the backbone of a suit on which the fate of the suit rests.

Objects and Importance of Pleading

Lord Jessel in the notable case of Throp v. Holdsworth[4] explained the objectives and purposes of pleadings in a judicial proceeding. According to His Lordship, the main object of pleadings is to taper down the parties to certain specific issues and forbid enlargement of issues.

Pleading assists the parties to know the facts and circumstances of the case brought against them by the adverse party and hence, saves time and expense.

Earlier, when pleadings were not in vogue and parties used to argue their case directly in court, there were instances where parties took much time to respond to the claims because of the sudden and new arguments of the adverse party.

The objects of pleading can be enlisted as follows:

  1. To taper down the broad issues on which dispute arose to a narrow and common issue.
  2. To avoid sudden and astonishing facts from emerging in the proceeding and causing a travesty of justice.
  3. To render judicial proceedings inexpensive, less cumbersome and approachable.
  4. To protect the valuable time of people that is wasted in framing arguments after every hearing.
  5. To eliminate irrelevant facts and materials that will waste the time of the court.
  6. To aid the court in reaching to a fruitful conclusion.

Fundamental Rules of Pleading

Order 6 Rule 2(1) states 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”[5]. Thus, this provision indicates that there are four basic or fundamental rules of documenting a pleading:

  1. Pleadings ought to state the facts of the case and not the legal provisions applicable in the case.
  2. Pleadings must contain only material facts.
  3. Pleadings should contain the relevant facts on which either party relies but it should not state the evidence by which the fact is proposed to be proved.
  4. Pleadings must contain a concise, i.e. brief facts that explains the details of the case in short.

Now, these rules are discussed profusely as follows:

  • Pleadings ought to state the facts of the case and not the legal provisions applicable in the case:

In Kedar Lal v. Hari Lal[6], the apex court held that the parties to a civil suit are obliged only to state the facts and situations that happened and on which they rely in the pleadings and to apply the law is the duty of the judiciary. It means that the parties should state what their claims are and why they should be granted to them.

For instance, in the earlier example where A complained about B hitting him, A should explain only what caused the fight, what was A’s role in the fight, why did B hit him and should not explain what offence has been committed by A by hitting B and which provision should apply and what procedure should be followed.

However, the rule was expanded a little in Union of India v. Sita Ram Jaiswal[7] wherein the apex court held that if there is a point of law which is in dispute or which has become part of the dispute, the point of law must be explained in the pleadings with necessary reference to relevant and vital facts of the case.

  • Pleadings must contain only material facts:

This the essential rule which states that facts which are material should find a place in pleadings. The question that remains is what constitutes material fact and which fact is immaterial. There is no specific definition of the expression ‘material fact’ either in the CPC or any other law. Nevertheless, the apex court has explained the meaning of ‘material fact’ in Udhav Singh v. Madhav Scindia[8]. The court averred that ‘material facts’ all those primary facts that are relied on by the parties either to substantiate their claims and establish their cause of action or used for their effective defence or counterclaim against the claiming party.

It has been observed by the courts that what type of facts or information would amount to a material fact is a subjective issue and shall be determined by the court on a case to case basis depending upon the circumstances of the case.

  • Pleadings should contain the relevant facts on which either party relies but it should not state the evidence by which the fact is proposed to be proved:

According to this rule, the evidence must be omitted from the pleadings. In other words, the party is not obliged to mention the documentary evidence or the witnesses which it proposes to produce before the court to be used against the adverse party. This is to ensure the fairness of a trial and assure the safety of the evidence. There are two types of facts according to jurisprudence, i.e. facta probanda and facta probantia.

Facta Probanda means facts which are essential for either party to prove their case and establish their cause of action or defence as the case may be. These facts are necessitated by Order 6 Rule 2 to be mentioned in the pleading. Contrary to this, facta probantia means facts which are in the form of evidence. Any fact which is in the form of evidence and which shall be used by the parties to prove the facta probanda shall not be mentioned in the pleading.

  • Pleadings must contain a concise, i.e. brief facts that explain the details of the case in short:

The last and final basic or fundamental rule which is also called the ‘rule of brevity’ requires that the pleadings are short, unambiguous and not capable of multiple interpretations but only one interpretation that the pleader desires to convey.

In Virendra Kashinath v. Vinayak N. Joshi[9], the court observed that pleadings must be brief and niggling should be avoided. However, it does not mean that essential facts need to be omitted or missed in an attempt to achieve brevity. However, the court averred, if syntax errors and drafting style is perfect, pleadings can be precise and legible.

Other Rules of Pleadings

Besides the four afore-mentioned fundamental rules, there are certain other particular rules which need to have adhered while drafting a pleading. Rules 3 to 16 of Order 6 specifically provide several guidelines to be followed for pleading. These guidelines constitute the other rules of pleadings. These are:

  1. In a case for misrepresentation or criminal breach of trust or fraud or wilful default in payment of due, specific particulars with respect to dates and items should be mentioned in the pleadings.
  2. If there is a condition precedent for taking legal action and if such condition is fulfilled, it is not required to be mentioned. However, if it is not fulfilled, it is essential that the fact is mentioned with reasons. For instance, under Section 80 of the CPC, no legal action can be brought against the government without two months’ notice. Thus, if the notice is not served, the plaintiff must mention this and the reason for non-adherence.
  3. A pleading can be amended at a later stage of the proceeding provided no new ground for the claim or new allegations are added to the original pleadings.
  4. Every pleading must be verified by the party whose pleading it is and it must be accompanied by a sworn affidavit which forms the deposition of the party and all these documents must be under the signature of the party concerned.

References:

  1. Srivastava K. K. Dr., The Law of Pleadings, Drafting and Conveyancing, 8thEdition, Central  Law Agency, Allahabad, 2014.
  2. Taiwan C. K., Civil Procedure with Limitation Act, 1963, 7thEdition, Eastern Book Company, Lucknow, 2013.

[1] Order 6, Rule 1, Code of Civil Procedure, 1908.

[2] Mogha’s Law of Pleadings (1983) at pg. 1.

[3] Devki Nandan v. Murlidhar, AIR 1957 SC 133.

[4] Throp v. Holdsworth, (1876) 3 Ch D 637.

[5] Order 6, Rule 2(1), Code of Civil Procedure, 1908.

[6] Kedar Lal v. Hari Lal, AIR 1952 SC 47.

[7] Union of India v. Sita Ram Jaiswal,

[8] Udhav Singh v. Madhav Scindia,

[9] Virendra Kashinath v. Vinayak N. Joshi, (1999) 1 SCC 47.


  1. History of the Code of Civil Procedure (CPC)(Opens in a new browser tab)
  2. Grounds and Procedure for Return and Rejection of Plaint under CPC(Opens in a new browser tab)
Ashish
Author: Ashish

Ashish has a flair for legal research and writing on contemporary issues. He believes the law is not a course but a Value Education subject that everyone should be taught at the school level. Belonging to the legal fraternity, he owes a responsibility to the future law aspirants and tries to assist them through their law school until they chose a career in law.

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