Know All-About Drafting, Pleadings & Appearances in Civil Procedure Code

Topics covered in this article are as follows:

1. Introduction

1.1 Objectives

1.2 Deficiency in Pleading

1.3 Amendment of Pleading

1.4 Interpretation of Pleading

1.5 Key Elements of Drafting a Pleading

2. Plaint Structure

2.1 Facts

2.2 Granting of Relief

3. Written Statement

3.1 Essentials of a Written Statement

3.2 Drafting a Written Statement

3.3 Pleading for a Set Off

4. Differences between Plaint and Written Statement
5. Set off vs Counter Claim
6. Preliminary Submissions in Legal Pleading
7. Forms of defence against Pleading

1. Introduction

“Pleadings” are statement of facts in writing drawn up and filed in Court by each party to a case. As per Order VI, R.1 of Civil Procedure Code, 1908 pleading means plaint or a written statement.

1.1 Objectives

• • Aims at ascertaining precisely the points for contention of the parties to a suit.
  • Gives a fair notice/intimation of the case to the opposing party, enabling him to produce evidence to the issue disclosed.
  • Enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.

Pleadings are required to enable the Court to decide true rights of the parties in trial. In the case of Ganesh Trading Co. v. Moji Ram (1978) 2 SCR 614, Supreme Court held:

“Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleading in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.”

1.2 Deficiency in Pleading

Following are considered as Material facts:

• • Every fact on which the cause of action or the defence is founded is material fact.
  • All facts which will be required to be proved at the trial in order to establish the existence of a cause of action or defence are material facts.
  • Whether a particular fact is material or not will depend upon the circumstances of the case.

Omission to state material facts in Pleadings

If a party omits to state or plead any material fact, he will not be permitted to adduce evidence to prove such a fact at the trial. The general rule is that a party cannot prove a fact which he has not pleaded.

Remedy

Pleadings need to be amended under Order VI Rule 17.

Following are the case laws on this subject:—

• • Kedar Lal v. Hari Lal AIR 1952 Cal 176
    “It is the duty of the parties to state only the facts on which they rely upon their claims. Here one most important question is arose i.e. what is the meaning of the term material facts.”

• • Union of India v. Sita Ram 1977 SCR (1) 950
    “Material facts means all facts upon which the plaintiff’s cause of action or the defendant’s defense depends, or in other words, 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 defense in the written statement.”

• • Udhav Singh v. Madhav Rao Scindia Air 1976 SC 744 The Supreme Court held that:
    “The term material fact means “All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defense are material facts.”

• • Virender Nath v. Satpal Singh (2007) 3 SCC 617 The Supreme Court held that:
    “The phrase ‘material facts’ may be said to be those facts upon which a party relies for his claim or defense. In other words, ‘material facts’ are facts upon which the plaintiff’s cause of action or the defendant’s defense depends. What particulars could be said to be ‘material facts’ would depend upon the fats of each case and no rule of universal application can be laid down.”Therefore, in the light of aforesaid case laws it is evident that omission to state material fact renders the pleading defective.

1.3 Amendment of Pleading

Pleadings can be amended by the parties in a suit if:—

Any of the important points is omitted from being given in the pleadings, it would be suicidal and the same cannot be raised in the Affidavit-in-Evidence at the time of leading of evidence.

There is a limited provision for amendment of pleadings as provided in Order 6, Rule 17 Civil Procedure Code, 1908. If any point has not been pleaded in the pleadings, no evidence could be led on that point. General rule is that no pleadings, no evidence.

Mrs. Om Prabha Jain v. Abnash Chand Jain AIR 1968 SC 1083; 1968 (3) SCR

“If a party omits to state or plead any material fact, he will not be permitted to adduce evidence to prove such a fact at the trial.”

Amendment of pleadings under Order 6, Rule 17 Civil Procedure Code, 1908 may be allowed by the Courts in the following manner:—

• • The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purposes of determining the real question in controversy
    between the parties.
  • Any amendment which is not material or an amendment in other than material fact will not be allowed.
  • Any such amendment if it changes the nature or character of a suit should not be allowed. Only those changes which are necessary to adjudicate the disputes should be allowed.
  • It is a discretionary power of the Courts to allow an amendment. Courts may impose costs on the parties seeking amendment to compensate the other party for his loss of time and energy.

1.4 Interpretation of Pleading

Pleadings should be construed in the following manner:-

• • The Court to look at the substance of the plaint and the relief sought.
  • A plaintiff’s case should not be defeated merely on the ground of some technical defect in his pleadings provided he succeeds on the real issues of the case. Substance of the plaints shall be seen rather than its mere form.
  • Pleadings should be read not by the piecemeal but as a whole and should be liberally construed.
  • The pleadings are not to be considered as constituting a game of skill between the advocates.

1.5 Key Elements of Drafting a Pleading

“Pleading” shall mean plaint or written statement. In a pleading, there is no scope of incorporating a provision of law or conclusion of law.

It is the intention of the framers of the Code of Civil Procedure 1908, that a pleading should state facts, and the position as in law shall be inferred if such facts are capable of raising any legal inference.

Key elements of drafting of pleadings as per Order VI, Rule 2, Civil Procedure Code, 1908 are as follows:—

• • pleadings must contain 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.
  • Pleadings must not state the evidence by which the material facts are to be proved.
  • The pleading should present material facts showing the cause of action or defence as the case may be.
  • Provisions of law need not be placed in a pleading as general principle is that to find out the law is the duty of the court. Legal effects are not to be stated by the party.
  • In India, the duty of a pleader is only to set out the facts upon which he relies and not the legal inference to be drawn from them i.e. the conclusion of law or a mixed question of law and fact should not be pleaded.
  • In like manner evidence has to be avoided in pleadings.

2. Plaint Structure

A suit is instituted by filing a plaint, which is the first pleading in a civil suit. A plaint comprises of:

• Heading and Title

Name of the court in which the suit is filed indicated at the top of the first page. Heading of the plaint means the court in which the suit is instituted [Order VII, Rule 1(a)]. Then comes the suit No. Thereafter the names of the parties to the suit with all necessary particulars is given. If there are more plaintiff or defendant than the names of all plaintiffs/and defendant should be given in plaint as plaintiff No. 1/Defendant No.1 and so on. Then comes the title of the suit.

      Specimen:

• Body of the plaint

Heading and title is followed by the body of the plaint. The plaintiff acquaints the Court and defendant with the case. The statement of facts is divided into paragraphs numbered consecutively. Dates, time and numbers should be expressed in figures as well as in words.

Specimen:

Body of the plaint is further divided into two parts:

(1) Substantive portion

This portion of the body of plaint is devoted to statement of all facts constituting the cause of action and the facts showing the defendant’s interest and liability.

(2) Formal portion

This portion of the plaint shall state the following essential particulars:

1. 1. Date when the cause of action arose.
   2. Statement of facts pertaining to jurisdiction.
   3. Statement as to valuation of the suit for the purpose of jurisdiction and court fees and it should be stated that the necessary court fee has been affixed to the plaint.
   4. Statement as to minority or insanity of a party or if he is representing some other body then statement as to plaintiff’s representative character.
   5. When a suit is filed after the expiry the period of limitation a statement showing the ground or grounds on which he has claimed exemption or condonation of delay in Limitation Law.
   6. Every relief sought for by the plaintiff should be accurately worded either simply or in the alternative, and it shall not be necessary to ask for general relief which may always be given as the Court may think just.
   7. Signature and Verification: The plaint must be signed by the plaintiff through advocate and if plaintiff is unable to sign the plaint, it must be signed by any person duly authorized by him to sign the same. The verification is done by the plaintiff himself. Affidavit should also be enclosed with plaint.

2.1 Facts

Facts in respect to a plaint may be either material or immaterial as given below:—

• Material Facts

Every fact on which the cause of action is founded is material fact in a plaint. All facts which will be required to be proved at the trial in order to establish the existence of a cause of action are material facts.

Example of material facts: Where the case is based on a sale-deed, it is material to state that a particular person has sold property to him by a sale-deed dated …. which was duly registered.

• Immaterial facts

Facts other than material facts are immaterial facts. If such facts are incorporated, the pleadings, become voluminous, so much so that at the time of framing the issues, the matter becomes really a hard nut to crack. The litigation drags unnecessarily.

Example of Facts not Material: In a suit on a promissory note, it is not material to state that the plaintiff requested the defendant to make the payment and he refused, because no demand is necessary when the promissory note becomes due and it is payable immediately.

2.2 Granting of Relief

Order VII Rule 7 and Rule 8 of Code of Civil Procedure, 1908 deals with relief claimed in a plaint as given below:—

• Rule 7 of Order VII of Code of Civil Procedure, 1908
  • A relief claimed by the plaintiff simply or in the alternative shall be stated specifically.
  • It shall not be necessary to ask for general or other relief which may always be given as the Court may think just on the facts of the case to the same extent as if it has been asked for.
    
    Rajendra Tiwary vs. Basudeo Prasad and Another AIR 2002 SC 136
    “The same rule shall apply in cases of any relief claimed by the defendant in his written statement.”
• Rule 8 of Order VII of Code of Civil Procedure, 1908
  • If the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and district grounds, they shall be stated as far as may be separately and distinctly
    
    Shehla Burney vs. Syed Ali Mossa Raza (2011) 6 SCC 529 The Supreme Court has reiterated that:
    “No relief can be granted against a party unless it has been specifically claimed in the suit or petition, as mandated by Order VII Rule(s) 5 & 7 of the Code of Civil Procedure.”

In the light of aforesaid case laws it is correct to state that Courts generally do not grant relief, if not prayed for.

3. Written Statement

A “written statement” is an answer to the claim made by the plaintiff in his plaint. It is required to be filed by the defendant.

Written statement is the statement or defence of the defendant by which he either admits the claim of the plaintiff or denies the allegations or averments made by the plaintiff in his plaint.

The written statement must

• • Specifically deal with each allegation of fact in the plaint and when a defendant denies any fact, he must not do so evasively but answer the same in substance.
  • Confirm all the general rules of pleading.

Legal provision on written statement

• • Order VI Rule I of Code of Civil Procedure 1908, pleadings include written statement.
  • Order VIII of Code of Civil Procedure 1908, deals with a detailed procedures of written statement.

Note: All the rules relating to defendant’s written statement apply, mutatis mutandis to such written statement of the plaintiff also.

3.1 Essentials of a Written Statement

Following are the key essentials of a written statement:—

• • A written statement is required to be filed by the defendant in answer to the claim made by the plaintiff in his plaint which is delivered to the defendant along with the summons to attend at the first hearing of the suit.
  • It is essential for the defendant to file his defence in writing.
  • Failure to file written statement
    If the defendant fails to file written statement, the court may pronounce judgment against him or may under O. 8, R. 10 of Civil Procedure Code, 1908
    Mehar Chand v. Suraj Bhan AIR 1971 Punj 43:
    “If the defendant does not file a written statement at or before the first hearing, the court can extend the time for filing it.”
  • Written statement should conform to all the general rules of pleading
  • Written statement of the plaintiff

A subsequent pleading filed by the plaintiff, either in reply to a defendant’s claim of set off, or with leave of the court, in answer to defendant’s pleas in defence.

All the rules relating to defendant’s written statement apply, mutatis mutandis to such written statement of the plaintiff also.

3.2 Drafting a Written Statement

Following are the important points which should be kept in mind while drafting a written statement:—

1. 1. If the plaint has raised a point/issue which is otherwise not admitted by the opposite party in the correspondence exchanged, it is advisable to deny such point/issue and let the onus to prove that point be upon the complainant. In reply, one has to submit the facts which are in the nature of defence and to be presented in a concise manner.
   2. Attach relevant correspondence, invoice, challan, documents, extracts of books of account or relevant papers as annexures while reply is drafted to a particular para of the plaint;
   3. The reply to each of the paras of the plaint be drafted and given in such a manner that no para of the plaint is left unattended.
      Vinod Kumar v. Surjit Kumar AIR 1987 SC 2179
      “The pleadings are foundations of a case”.
   4. The reply/written statement should be supported by an Affidavit of the opposite party. The Affidavit to be sworn by any of the persons aforesaid and duly notorized by an Oath Commissioner. The court is bound to see in every case that the pleadings are verified in the manner prescribed and that verifications are not mere formalities.
   5. The reply along with all annexures should be duly page numbered and be filed along with authority letter if not previously filed.
   6. At the time of filing of reply, attach all the supporting papers, documents, documentary evidence, copies of annual accounts or its relevant extracts, invoices, extracts of registers, documents and other relevant papers.
   7. I any of the important points is omitted from being given in the reply, it would be suicidal as there is a limited provision for amendment of pleadings as provided in Order 6, Rule 17 CPC, and also the same cannot be raised in the Affidavit-in-Evidence at the time of leading of evidence.
      Mrs. Om Prabha Jain v. Abnash Chand Jain AIR 1968 SC 1083; 1968 (3) SCR
      “It is a settled law if any point has not been pleaded in the pleadings, no evidence could be led on that point. General rule is that no pleadings, no evidence.”
   8. If a party is alleging fraud, undue influence, coercion or mis-representation, general allegations are insufficient. Party must state the requisite particulars in the pleading.
   9. It is well settled that neither party need in any pleadings allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side unless the same has first been specifically denied.
   10. In every pleading, one must state specifically the relief which the party is claiming from the court or tribunal or forum. All possible relief as would be permissible under the pleadings and the law.

3.3 Pleading for a Set Off

Order VIII Rule 6 of Code of Civil Procedure 1908 deals with particulars of set off to be given in written statement.

Where in a suit for the recovery of money the defendant claims to set off against the plaintiff’s demand any ascertained sum of money legally recoverable by him from the plaintiff, present a written statement containing the particulars of the debt sought to be set off.

Effect of Set off

The written statement shall have the same effect as a plaint in a cross suit so as to enable the court to pronounce a final judgment in respect both of the original claim and of the set off; but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

Thus it is correct to state that where the defendant pleads set off, he will be in the position of plaintiff.

4. Differences between Plaint and Written Statement

Following are the differences between a plaint and a written statement:-

5. Set off vs Counter Claim

6. Preliminary Submissions in Legal Pleading

Preliminary submissions confine to the true and correct facts regarding the issue involved and which have been suppressed or not disclosed by the other side in the pleadings.

Legal pleadings/submissions should be taken under the heading “preliminary submissions/objections”.

While taking such plea one should ensure that the legal provisions and/or interpretation thereof, is very clear and directly applicable to the issues involved in the matter.

Following can be pointed out under the head preliminary submissions and objections:

• • • The suit is barred by res judicata,
    • Jurisdictional defect if any,
    • Any incorrect fact forming part of the pleadings,
    • Plaint does not disclose cause of action etc.

7. Forms of defence against Pleading

Following are the different forms of defences that may be adopted by a defendant while replying to opponent’s pleadings:—

(i) Traverse

Where a defendant totally and categorically denies the allegations made out in the plaint.

(ii) Confession and Avoidance or special defence

Where the defendant admits the allegations but seeks to destroy their effect by alleging affirmatively certain facts of his own.

(iii) Objection in point of law

These objections are not founded on merits and are restricted to the point of law. These could be Dilatory or Peremptory pleas/pleas in bar.

(iv) Dilatory pleas

Another form of plea which delays the trial of a suit on merits is dilatory plea.

Example: Plea that the hearing be stayed under section 10, C.P.C.

or

The suit has not been properly framed, there being some defect in the joinder of parties or cause of action and the case cannot be decided until those defects are removed.

Some dilatory pleas are must be taken by separate proceedings and some may be taken in the written statement under the heading “Preliminary Objections”

A defendant may adopt one or more of the above forms of defence. He can take such different defences either jointly or alternatively, even if such defences are inconsistent.