DR.

RAM MANOHAR LOHIYA,

NATIONAL LAW UNIVERSITY,
LUCKNOW
SESSION 2018-19

SUBJECT: CIVIL PROCEDURE CODE

TOPIC: PLEADINGS

CLASS: B.A. LL.B. (HONS), IVth SEMESTER

SUBMITTED TO SUBMITTED BY
DR. VIPUL VINOD VISHAL KUMAR ARYA
ASSISTANT PROFESSOR ENROLLMENT NO.170101163
SECTION: B

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 ACKNOWLEDGMENT

First of all, I would like to thank my teacher of the subject “CPC”, Dr. Vipul vinod Sir, for

providing every bit of help and also showing the way in which to proceed and how to go

about the project. I would also like to thank my parents, friends and others who helped me

immensely at every step and gave every possible bit of help that I needed in preparing the

project and making it look presentable in a good way. I would also like to thank the library

staff of RMLNLU who provided me with books that I needed in making and preparing the

project and other pieces of information and help that was required. At last I would like to

sincerely thank God who gave me the much needed strength and power to go ahead with the

project and make it in a presentable way.

VISHAL KUMAR ARYA

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 RESEARCH METHODOLOGY

RELEVANCE OF THE TOPIC:

“The term pleading refers to documents that are filed with a court, but not just any document
may be filed. Only those that conform to the rules of civil procedure and that serve a
particular purpose in accordance with those rules will be accepted by the court. Thus, the
form a pleading takes has an effect on the progress of the litigation. Specifically, pleadings
help to frame a law suit. That is they specify what gave rise to the case and what the litigation
will be about, the law that will help to resolve it, and the terms on which the parties believe it
should be resolved. So pleadings form the most important part of any law suit and therefore,
it is necessary that a law student is thorough with rules regarding pleadings.”
OBJECT OF STUDY:
The sole purpose of carrying out this study is to acquire in- depth knowledge about pleadings
in a law suit as it is the foundation of a legal suit and without it, no suit can progress.
HYPOTHESIS/ RESEARCH QUESTIONS:
 What are the relevant sections relating to pleadings in the Civil Procedure Code?
 What are the important principles that the judiciary has set out in relation to
pleadings?
 How the rules on pleadings in India differ or resemble to that in U.S.A and U.K.?
 What can be changed in the existing law to ensure more efficient outcomes?

LIMITATIONS OF RESEARCH:
The research has been carried out using the best possible ways and all authentic sources have
been referred to, so as far as content of our study is concerned, its validity or authenticity
cannot be disputed. The only constraint is that all that has been included in research is
extracted from works of other scholars and no primary research has been carried out for the
study.

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 TABLE OF CONTENTS

1. INTRODUCTION.....................................................................................................6
2. PLEADING DEFINITION :RULE1.........................................................................8
3. FUNDAMENTAL RULES OF PLEADING ORDER 6 RULE 2............................9
4. ONLY MATERIAL FACTS SHOULD BE STATED, NOT THE EVIDENCE BY
WHICH THEY ARE TO BE PROVED......................................................................15
5. FACTS MUST BE STATED IN A CONCISE FORM...............................................19
6. LEGAL ANALYSIS....................................................................................................21
7. RULES REGARDING PLEADINGS.........................................................................22
8. PARTICULARS TO BE GIVEN WHERE NECESSARY.........................................24
9. ROLES OF JUDICIARY.............................................................................................26
10. CONCLUSION............................................................................................................29
11. BIBLIOGRAPHY.......................................................................................................30

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  LIST OF CASES-
 Bharat singh vs state of Haryana, AIR 1988 SC 2181…………………………………..6
 Throp v. Holdsworth, (1876) Lr 3 Ch D 637……………………………………………………………6

 Kedar Lal v. Hari Lal,AIR 1952SC 47 At p.51 ;1952 SCR 179………………………………7

 Rajasthan Srtc v. Bajrang Lal,(2014) 4SCC 693........................................................................7

 Udhav Singh v. Madhav Rao Scindia, AIR 1976 SC 744…………………………………………….11

 Virendra Nath v. Satpal singh ,, (2007) 3 scc 617: AIR 2007 SC 581 R.M. Seshadri v. G. Vasantha pai.
…………………12

 Williams v. Wilcox, II2 ER 857:(1835-42)AII ER rep(1838) 8 Ad3 3I4 at p.33I……………………14

 Bhagwati Prasad vs. Shri Chandramaul , AIR 1966 SC 735.............................................................25

 Lalita Prasad v. Gajadhar , AIR 1933 All 235, also Syed Dastagir v. Gupalkrishna, (1999) 6 SCC
337...................25

 Hanuwant Singh Rawat V. M/s Rajputana Automobiles, Ajmer (1993) 1 WLC

625.................................26

 Peethani Suryanarayana v. Repaka Venkata Ramana Kishore (2009) 11 SCC

308...............................27

 Bharat Karsondas Thakkar V. M/s Kiran Construction Co. & Ors 2008 AIR SCW 3192...........27

 Ajendraprasadji N. Pande & Anr. V. Swami Keshavprakeshdasji N. & Ors ,2007 AIR SCW 513..27

 B.K. Narayana Pillai V. Parmeshwaran Pillai & Anr (2001) 1 SCC

712...............................................28

 Kailash V. Nankhu & Ors (2005) 4 SCC

480.............................................................................................28

 Baldev Singh & Ors. Manohar Singh & Anr. (2006) 6 SCC
498......................................................................28

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 INTRODUCTION

The system of pleadings in India is structured as per the provisions of the Code of Civil
Procedure, 1908 (hereinafter referred to as C.P.C.). There have been supplementary rules
made by the Supreme Court, the State High Courts and other special enactments. 1 The rules
of pleadings are generally dealt with in Order 6 of the C.P.C. Order 7 and Order 8 also
mention certain rules regarding drafting of pleadings. Order 6 introduced into India the
leading rules of pleadings followed in England. 2 Rule 1 of the order defines ‘pleading’ to
mean plaint or written statement. Pleading as defined by Section 225 of the Judicature Act
1925, “includes any petition or summons and also includes the statement in writing of the
claim or demand of any plaintiff and of defence of any defendant thereto and of reply of the
plaintiff to any counterclaim of a defendant”.3

A plaint is a statement of claim in which the plaintiff establishes his cause of action with all
necessary particulars. A written statement is a statement of defence in which the defendant
deals with every material fact alleged by the plaintiff in his plaint and also mentions any new
facts that support his stand.4 Usually, after the written statement to the plaint is filed, parties
do not have a right to file further pleadings without the permission of the court, however in
some cases where the plaintiff is allowed to amend the plaint, the defendant is subsequently
allowed to present further and additional written statement to the amended plaint. Also in
situations where the defendant makes any counterclaim in his written statement, the plaintiff
is granted permission to file his written statement to the defendant’s counterclaim. Therefore
in a broader sense, ‘pleadings’ means and includes plaintiff’s plaint, written statement of the
defendant to the plaintiff, written statement of the plaintiff to the defendant’s counter claim in
his written statement.5

1
A.B. Majumdar, Majumdar On Plaints (Calcutta: Eastern Law House, 1995) at 1.
2
S. Sarkar and V.R. Manohar, Sarkar’s The Law Of Civil Procedure (11th edn., Nagpur: Wadhwa And
Company, 2006) at 1022.
3
U.M. Pandit and S.M. Amin, Principles And Precedents Of Pleadings And Conveyancing(2nd edn., Bombay:
N.M. Tripathi Pvt. Ltd., 1994)at 1.
4
P.C. Mogha, The Law Of Pleadings In India With Precedents (M.C. Agarwal and G.C. Mogha ed., 17th edn.,
Kolkota: Eastern Law House, 2006) at 5.
5
Supra note 3.

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Pleadings are statements in writing drawn up and filed up by each party in a case, stating
what his contentions will be at the trial and furnishing all such information that the opposite
party needs to know in order to prepare his case in reply. 6 This project examines the rules and
principles regarding pleadings as mentioned in Order 6 of the C.P.C.

Pleadings are not only meant to facilitate the parties but also help the court define with
certainty the scope of the issue at hand. The purpose of rules of pleadings is to bring about
justice and to prevent multiplicity of proceedings. Rules regarding pleadings assist in the
regulation of the business and procedures of the court. They do not create new legal rights
where none exist.7

Order 6 contains 18 rules. Rule 2 is the most fundamental and significant rule regarding
pleadings. According to this there are four basic rules of pleadings:
(1) Every pleading must contain all the material facts and material facts only.
(2) It must state only those facts on which the party pleading relies for his claim or
defence, and not the evidence by which they are to be proved.
(3) Every pleading shall state facts and not law.
(4) It must state the facts concisely but with precision and certainty.
The project will critically analyse these four basic rules of pleadings, in different chapters.

EVOLUTION
“The system of pleading developed in the English courts of common law after the Norman
Conquest and applied in legal actions in this country until the pleading reforms of the middle
and the latter part of the nineteenth century is commonly called common law pleading. The
system of pleading developed in the English courts of chancery and likewise applied in the
equity courts in this country is termed equity pleading. Code pleading is the term applied to
the reformed system of pleading initiated by the New York Code of 1848 and now in force in
some thirty American jurisdictions. But since it developed from the former systems and in
many respects continues various details and parts of them, it is necessary to consider the
antecedents of code pleading in the other systems.”

6
Supra note 4 at 3.
7
Supra note 4 at 4.

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 PLEADING: DEFINITION :RULE1

“PLEADING” is defined as a plaint or written statement. 8 According to mogha9

PLEADINGS are statement in writing drawn up and filled by each party to a case,, stating
what his contentions will be at the trial and giving all such details as his opponents needs to
know in order to prepare his case answer..”

“A plaintiff’s pleadings is his plaint , a statement of claim in which the plaintiff sets out his
cause of action with all necessary particulars, and a defendants pleadings in his written
statement, a defence in which the defendants deal with every material fact alleged by the
plaintiff in the plaint and also states any new facts which are in his favour, adding such legal
objections as he wishes to take to the claim. 10 Where the defendant, in his written statement
pleads a sets off, the plaintiff may file his written statement thereto. Again in some cases, the
defendant after filling his written statement may file an additional written statement with the
leave of the court.”

The whole of Pleading is to bring parties to definite issues and to diminish expense and delay
and to prevent surprise at the hearing. A party is entitled to know the case of his opponents so
that he can meet him.In other words, the sole object of pleading is to ascertain the real dispute
between the parties, to narrow down the area of conflict and to see the two sides differ, to
preclude one party from taking the other by surprise and to prevent miscarriage of justice 11

In sayad Muhammad v. Fatteh Muhammad ,Lord Halsbury12 said;

“whatever relating to pleadings may exist, the sole object of it is that each side may be fully
alive to the questions that are about to be argued in order that they may have opportunity of
bringing forward such evidence as may be appropriate to the issues.”

8
Bharat singh vs state of Haryana, AIR 1988 SC 2181.
9
Mogha’s Law of Pleadings
10
Ibid , for detailed discussions of Plaint,”see infra ,Pt II ,Chap.7.
11
Throp v. Holdsworth, (1876) Lr 3 Ch D 637
12
(1894-95) 22 IA;ILR(1894) 22 cal 324(PC)

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 FUNDAMENTAL RULES OF PLEADINGS: ORDER 6, RULE 2

Order 6, Rule 2 (1) says that a pleading shall contain, and contain only, a statement of the
material facts on which the party pleading relies for his claim or defence. 13This principle thus
means that (i) the party pleading must mention all material facts on which he would rely to
establish his case; and (ii) that the party must plead only material facts, and not any fact
which is immaterial. The very wording of the rule shows that emphasis is laid on the pleading
of material facts only. Thus it is essential to understand what these material facts are that
must be stated in the pleadings.

A fact can be said to be material for the pleading of a party, which he is obligated to prove at
the trial for him to succeed in his claim or defence. Material facts are those facts which a
plaintiff must state in order to establish that he has a right to sue, i.e., a right to the reliefs
claimed in the plaint, or a defendant must allege to set up his defence. Facts which are not
required to constitute a claim or defence are not material. 14 This implies that, whether a
particular fact is material or not depends primarily on the circumstances of the case. 15 The
word ‘material’ means all that is necessary to form a complete cause of action.

A pleader is required to collect all facts, whether material or not from his client and then read
those in the light of the circumstances of the case to see what facts are material that should be
pleaded. In case there is doubt about whether a given fact is material or not, it would be better
to state the fact in the pleading than to omit it, for if later it is discovered that the fact was
material, he may not be permitted to plead it.16

To determine whether material facts have been pl eaded or not, all such facts should be put
together and seen whether, if all those facts were proved, the plaintiff would be entitled to the reliefs
claimed. If yes, then each fact should be considered on the ground that if it was not proved, would the
plaintiff still succeed. If he could even without establishing that fact, then the fact should not be
included. All the facts that remain after such elimination would be material facts that need to be

13
Kedar Lal v. Hari Lal,AIR 1952SC 47 At p.51 ;1952 SCR 179;
14
Rajasthan Srtc v. Bajrang Lal,(2014) 4SCC 693;
15
Supra note 2 at 26.
16
Supra note 4 at 29.

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pleaded. If it is found that even if all of those facts are proved, the plaintiff would not succeed and
some further facts have to be proved, then those facts should also be pleaded.

Certain instances of material facts are as follows. In a case of defamation where words of praise are
spoken ironically as to convey a derogatory meaning, it should be alleged that they were so intended
and comprehended. The publication of defamatory statement should be alleged and time, place, when,
where and how they were published should be specified. In a suit for libel, the defamatory words must
be clearly mentioned in the plaint, and in case where the defamatory sense is not apparent, the
innuendo must be specifically stated. In a case where collusion is alleged between X and Y, the fact
that they knew about the improper motives of each other is material.

If a suit is brought under a specific statute, all facts essential to bring it within the scope of that
enactment must be pleaded. Where the law applicable to a case has an exception to it, all facts that
would remove the case out of the rule or out of the exception are material. If a party claims the
application of a special rule of Hindu or Mohammeddan law, it should plead all the facts that would
attract the rule. For example, a Muslim dies leaving five heirs, two grandsons by one son and three by
another son. Under the Sunni school, property would be divided per capita, thus all the five grandsons
would take one-fifth share each. In Shia law, the grandsons would take per stirpes, i.e., the grandsons
in one branch will have to divide in half of their father’s share and the other branch will have to divide
into three of their father’s half share. Therefore it becomes material to state whether the deceased
Muslim was a Sunni or a Shia.

“Now certain instances of immaterial facts would be discussed. The pleadings in the lower courts
often contain many allegations of immaterial facts that should not be pleaded. 17 In an eviction petition
based on a bona fide requirement, it is not necessary to plead that there is no other accommodation in
the city. In a suit for money lent, it is not material to plead that the money was lent at the request of
the defendant or a third party, or because the plaintiff trusted the honesty of the defendant, or that the
defendant was in poor condition.18 It is sometimes alleged that the defendant has not paid despite his
ability to pay. The ability or inability to pay is not a material fact. In a trespass suit, it is unnecessary
to mention that the defendant had trespassed into the plaintiff’s house at the incitement of the latter’s
enemies or because the defendant had a grudge against the plaintiff. It is also not material to state that
the defendant had committed similar acts of trespass on the property of others in the past or that he is
a powerful man in the village while the plaintiff is a helpless farmer. 19”

17
Union of india v. Sita Ram Jaiswal , AIR 1977SC 329
18
Supra note 4 at 30.
19
AIR 1976 SC 744

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Udhav Singh v Madhav Rao Scindia,20 is a landmark case that explained what material facts are. The
facts in this case are as follows. The appellant, Udhav Singh filed an elction petition on 26-4-1971,
challenging the election of the respondent, Madhav Rao Scindia, to the Lok Sabha on two primary
grounds: (i) that the respondent and/or his agent had incurred expenses exceeding the limit of Rs.
35,000 with respect to the election prescribed under Sec 77(3) of the Representation of People Act,
1951 read with Rule 90 of the Conduct of Election Rules, 1961. He alleged that the respondent toured
the constituency by helicopters and also used minimum 18 motor vehicles, but did not show the
expenses in that regard. (ii) that the workers of the respondent, with his consent, had threatened the
electors with bodily harm and criminally intimated them not to vote for Shri Deorao Krishnarao
Jadhav.

The second allegation shall be considered here. Five such cases of threats and intimidation were
mentioned. Para 11(iv) of the petition read “That, on or before 22-2-71, Shri Mohan Prasad Ojha, a
Congress Worker of Village Umri (Tehsil Guna) was threatened at pistol point by the workers of the
respondent with his consent, Shri Shiv Pratap Singh and others of Umri threatened not to vote and
canvass in favour of the Congress candidate, Deorao Krishnarao Jadhav and threatening with dire
consequences.”

“Only one respondent was impleaded in the petition, who presented his written statement on 24-9-
1971. The respondent denied the allegation of corrupt practices and that with his consent, Shri Shiv
Pratap Singh and others of Umri threatened one Madan Ojha not to vote. He also said that Para 11(iv)
did not have material particulars as to who the alleged workers were, what their names were, their
addresses and so on and thus it cannot be enquired into. The allegation is baseless and vague. It is
unclear as to when, where and in whose presence the respondent allegedly consented. The respondent
then submitted an application on 3-8-1972 alleging that though the election-petitioner alleged in Para
11(iv) of the petition about the commission of a corrupt practice by Shri Shiv Pratap Singh as per Sec
123(2) of the Act, he did not join him as a respondent, and as such his petition should be dismissed
under Sec 86 on grounds of non-compliance with the mandate of Sec 82(b). The petitioner was
notified about this application and he filed a reply on 28-8-1972 saying that the allegation in Para
11(iv) was wrongly interpreted by the respondent and that the objection as to non-joinder of necessary
party not having been taken by the respondent at the earliest, should be deemed to have been waived
by him. The respondent said in his rejoinder that he had correctly produced Para 11(iv) and that the
original petition was tampered with to erase the defect in it. The trial judge held that Para 11(iv)
framed a charge against Shiv Pratap Singh and his non joinder as a respondent was fatal to the petition
and thus it could be dismissed under Sec 86. The petitioner appealed against this.”

20
AIR 1976 SC 744.

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The necessary part of Sec 82 reads: Parties to the petition- A petitioner shall join as respondent to his
petition- (a)... (b) any other candidate against whom allegations of any corrupt practice are made in
the petition.
Sec 82(b), specifically obligates an election-petitioner to join a candidate who is charged with corrupt
practices, as a respondent to his petition. If this mandate is not followed, Sec 86 directs the High
Court in clear terms to dismiss the petition. The respondent cannot by any means waive these
provisions.

“The appellant says that even if Para 11(iv) is read to mean that Shiv Pratap Singh and others of Umri
threatened not to vote, the allegation is so short of material facts and particulars that it does not
constitute a charge of corrupt practice under Sec 123(2). Facts and particulars that should have been
pleaded as per Sec 83 but have not been pleaded are: place where the threat was given, the nature of
injury threatened, that Shiv Pratap Singh was a candidate and so on. It was contended that the Court in
determining whether Para 11(iv) amounted to a complete cause of action should confine itself to that
paragraph and not consider other documents extraneous to the petition. At this point, the respondent
contended that all material facts as distinguished from material particulars, necessary to create a
complete charge of corrupt practice under Sec 123(2) against Shiv Pratap Singh were present in the
petition, if it was read as a whole. Sec 83 says: (1) an election petition (a) shall contain a concise
statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any
corrupt practice that the petitioner alleges, including as a full a statement as possible of the names of
the parties alleged to have committed such corrupt practice and the date and place of the commission
of each such practice and (c)..”

The Court drew an interesting analogy between this section and the C.P.C. and said there is a
difference between ‘material facts’ and ‘material particulars’. Sec 83 (1) (a) corresponds to Order 6,
Rule 2, while Sec 83 (1) (b) corresponds to Order 6, Rules 4 and 6 of the Code. The distinction
between the two is significant as their deficiency in pleading entails different consequences. Even if a
single material fact is not pleaded, cause of action is incomplete and the charge can be struck off
under Order 6, Rule 16, C.P.C. The Court explained that ‘material facts’ are all the primary facts
which a party at a trial must prove to establish the existence of a cause of action or his defence. In the
instance of a charge of corrupt practice ‘material facts’ would be all the basic facts constituting the
essentials of the particular corrupt practice alleged, which the petitioner is compelled to substantiate in
order to succeed on that charge. In an election petition, whether a particular fact is material or not, and
as such required to be pleaded, is a question which depends on the nature of charge made, the ground
relied on and the circumstances of the case. 21 Thus all the facts that constitute a complete cause of

21
Udhav Singh v. Madhav Rao Scindia, AIR 1976 SC 744.

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action are material facts which must be pleaded and failure to plead even a single such fact would be
against Sec 83(1)(a).

On the contrary, ‘particulars’ are the details of the case set up by the party. ‘Material particulars’
under Sec 83(1)(b) would thus mean all the details which are required to enlarge an refine the material
facts already pleaded in the petition as per Sec 83 (1)(a). Particulars are meant to make a picture
already drawn, more detailed and informative. 22

“Keeping this distinction in mind, the Court went on to see whether Para 11(iv) had all material facts
constituting a complete charge of corrupt practice within the meaning of Sec 123(2) against Shiv
Pratap Singh. In short, the corrupt practice of "undue influence" as defined in Sec 123 (1) is "direct or
indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other
person with the consent of the candidate or his election agent with the free exercise of any electoral
right”.By means of illustration Sub-clause (1) of Clause (a) of the Proviso shows that if a person who
threatens any candidate or elector, or any person in whom a candidate or an elector is interested, with
injury of any kind shall be deemed to interfere with the free exercise of the electoral right of such
candidate or elector within the meaning of Sub-section (2).”

“The particular corrupt practice alleged in Para 11(iv) is of the category mentioned in the aforesaid
proviso. A reading of the Para in its entirety will indicate that it is pleaded that Shiv Pratap Singh and
others of Umri had threatened Mohan Ojha with bodily injury not to vote for Shri Jadhav, that the
threatener Shiv Pratap Singh was an election worker of the respondent who threatened the elector,
with the respondent’s consent. Para 11(iv) read with Para 10 of the petition, shows that this threatener
was none else but "Shri Shiv Pratap Singh MLA, s/o Shri Birjendra Singh, r/o Umri House,Guna",
who "during the election of the respondent acted as his agent." Thus all the "material facts"
constituting a complete charge of corrupt practice under Sec 123(2)  against Shri Shiv Pratap Singh
were stated in the petition.Only the place and the exact time of giving the threat were not mentioned.
But these were, at best, only material particulars, and not "material facts".Similarly, further and better
particulars of the address etc. of Shri Shiv Pratap Singh would be particulars.”

Therefore, Para 11(iv) of the petition constituted a complete charge of corrupt practice against a
candidate, Shri Shiv Pratap Singh and consequently as per of Sec 82 (b) it was mandatory for the
petitioner to implead him, also, as a respondent. Not having done so, would lead to the dismissal of
his petition under Sec 86.

22
Udhav Singh v. Madhav Rao Scindia, AIR 1976 SC 744.

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This case shows that all material facts must be pleaded and failure to do so would defeat the suit. All
such facts are to be read together to disclose the cause of action. The Court made a crucial distinction
between material facts and material particulars. Particulars though helpful are not the most essential
for a pleading. However much depends on the facts and circumstances of the case. In certain cases, as
will be seen later, particulars may be needed to make the suit clear and complete.

Facts that are not material at the present stage of action, though they may become material at a later
step, should not be mentioned in the pleadings. There is no need to anticipate the objections of the
opposite party and to mention what one would have to state in reply to it. A plaintiff is not required to
state the facts in the pleadings based on which he could meet the defence or defeat the claim of the
defendants. For instance, in a suit for libel, it would be improper if the plaintiff were to allege in his
plaint that the defendant will contend that the words are part of fair and correct report of judicial
proceedings, however it is not so in reality. 23 In a suit for trespass the plaintiff is not expected to state
in the plaint that the defendant would claim that he entered the plaintiff’s area under colour of a sale-
deed alleged to have been executed by the plaintiff, but that the deed was not registered. 24

23
Virendra Nath v. Satpal singh ,, (2007) 3 scc 617: AIR 2007 SC 581 R.M. Seshadri v. G. Vasantha pai.
24
Supra note 4 at 36.

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 ONLY MATERIAL FACTS SHOULD BE STATED , NOT THE EVIDENCE BY WHICH
THEY ARE TO BE PROVED

“Another fundamental rule of pleading is that the pleading should contain a statement of the
material facts but not the evidence by which they are to be proved. 25 Even though evidence
also consists of facts, there is a system of nomenclature to differentiate the two. The material
facts on which the party relies are facta probanda, i.e., the facts to be proved and these must
be mentioned in the pleadings. The evidence or facts by which these material facts are to be
established are facta probantia, and these should not be stated in the pleadings. They are not
facts in question, but are merely relevant facts which will be shown in the trial to establish the
facts in issue.26 The distinction is seen in the very rule itself. In very few cases the two
categories of facts cannot be differentiated. For instance, in cases of custom grounded on
village administration paper, which is usually the basis of the custom and its sole proof, the
record has to be pleaded. However, generally the difference between the two is clear enough
and should be borne in mind.”

The parties need not plead the question of appreciation of evidence. It is the duty of the court
to check whether the documents produced by the parties establish the facts in dispute. A clear
example may be seen in an action against an insurance company, on a life insurance policy,
say of X, where one of the conditions was that it would be void if the insured died by his own
hand. If the defendant company wants to rely on that ground then it should only plead that X
committed suicide. It should not mention in the written statement that X had been in
melancholy for weeks, had purchased a pistol and shot himself with that and a letter stating
that he intended to kill himself was found on him. These facts are merely facta probantia by
which the facta probandum i.e., suicide has to be established.

In R.M.Seshadri v. G.Vasantha Pai,27 the facts were as follows. In elections to the Madras
Legislative Council from the Madras district Graduates’ Constituency, the appellant Seshadri
was declared elected by a majority of 255 votes than his nearest rival Vasantha Pai. Vasantha
Pai filed an election petition to set aside Seshadri’s election on the ground that he had utilised
cars which had been hired or obtained for the transportation of voters to the polling booths
25
Williams v. Wilcox, II2 ER 857:(1835-42)AII ER rep(1838) 8 Ad3 3I4 at p.33I
26
(1845)5 MG 639
27
AIR 1969 SC 692.

15 | P a g e
which were around 73 in the constituency. The judge held in favour of Pai. Seshadri appealed
against it.

“In the election petition it was alleged that numerous motor cars were hired or brought from
different sources for conveying the voters to the polling booths. These were sometimes
occupied by people who had badges on them that bore the name of Seshadri and were at
times received at the polling booths by persons who had similar badges. This leads to an
inference that the vehicles were used for the transportation of voters by the contesting
candidate Seshadri. This conduct would be equal to a corrupt practice under section 123(5) of
the Representation of People Act. Seshadri contended that the plea was vague and not clear
enough to give him notice of the charge against him that he had to meet, that such an
allegation of corruption is of the nature of a criminal charge and should thus be established by
the petitioner himself beyond all reasonable doubt, and that the judge improved the pleading
and the evidence by calling certain witnesses and considering documents which he had
procured on his own behalf.”

“ petitioner alleged that the Swatantra Party and its agents conveyed voters to and from the
polling booths in some cars hired or procured from M/s. Kumaraswamy Automobiles and
T.S.Narayanan, Authorised Tourist Taxi Operators. The petitioner also said that the detailed
use of the cars and particulars of the user were given in a schedule attached to the petition.
Seshadri emphasised on the fact that the plea did not mention as to who hired the vehicles or
cause them to be procured and without sufficient and precise particulars he could not answer
the allegations of the petitioner. The Court looked into the tabulated statement of evidence
regarding the use of cars and agreed with the judgment of the High Court. The plea
mentioned four names. Seshadri said the connection between them and him or with the voters
or with the cars was not established.”

The Court before examining the evidence showed its relevance to the pleas raised in the case.
The essence of the pleading was that cars were hired or procured for the conveyance of
voters, violating the prohibition contained in the election law. The names and locations of the
booths with the particulars of the cars and persons primarily connected with cars at the booths
had been mentioned. The drivers of the cars or the voters were not examined. However it was

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clearly pleaded and proved that the cars were actually used. It was also specifically pleaded
that Seshadri was in fact connected with the use of cars. The Court said that rest were pieces
of evidence that did not have to be pleaded and that plea could be corroborated by proof to
show the source from where vehicles were brought, who hired or procured them and so on.
This is what happened in the case. The judge after concluding that many cars were used for
conveying voters to booths, further considered who hired them. Facts were provided that
implied that Krishnaswamy had hired the cars and that he was intimately connected with
Seshadri.

Thus the Court held that Pai’s plea was cogent enough to show the link between Seshadri and
the hiring of cars. The missing bits were supplied by other circumstantial evidence, like
showing that the only person who had hired cars was closely related to Seshadri and thus the
cars were used for the latter’s benefit. There was no need for Pai to have pleaded his evidence
in his behalf as his plea was sufficient by stating the number of the cars, naming the polling
booths and specifically mentioning that it was Seshadri who had procured cars for the
conveyance of voters. Rest were evidentiary matter. The Court ordered for fresh elections in
the Constituency.

This case clearly shows that all that is needed in a pleading is the material facts and not the
evidence that would be used to establish them. Mere stating of allegations would serve the
purpose of pleading, i.e. to make the other party aware of the charges it has to meet. A party
is not supposed to inform its opponent the matter it would utilise to prove such allegations.

In a suit for damages resulting from the defendant’s wrongful act, the plaint should not
contain facts proving the link between the damage caused and the wrongful act. What should
be alleged is the wrongful act, that the defendant caused it, and that the plaintiff suffered
damage subsequently.28 A common way of pleading evidence is that of setting up previous
admissions of the opposite party. Admissions are reliable pieces of evidence, nevertheless
they should not be stated in the pleadings.

28
Supra note 4 at 41.

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In a suit for money lent, the defendant often pleads that the plaintiff himself is indebted and is
not in a situation to lend money to others, or that the defendant is himself a rich man who did
not have any necessity to borrow money from plaintiff. All these would amount to
circumstantial evidence and should not be pleaded.29

29
Supra note 4 at 42.

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 FACTS MUST BE STATED IN A CONCISE FORM

“Another fundamental rule of pleading is that the material facts should be stated in a concise
form but with precision and certainty. 30 Order 6, Rule 2(2) states that, when necessary the
pleading shall be divided into paragraphs and numbered consecutively. Order 6, Rule 2(3)
states that, dates, sums and numbers shall be expressed both in figures and words. This would
ensure that parties do not later claim that wrong dates or numbers had been stated due to
accidental or typographical error. Though pleadings should be concise, they should not be
vague or obscure. They need to be precise. Mere verbosity because of lengthy facts would not
lead to the striking out of pleadings if the facts stated are all material. All facts are to be
stated precisely but briefly. An instance of bad pleading would be, “The defendant does not
know the plaintiff and has never in his life been to the plaintiff’s house nor borrowed money
from him.” This is neither concise nor precise. A proper pleading would be, “The defendant
did not borrow the money alleged in the plaint or any money from the plaintiff.” A party
should state its case with brevity which can be done by eliminating all unnecessary facts,
omitting all unnecessary details while alleging material facts and by giving attention to the
language used in stating material facts.”

30
Virendra Nath v. Satpal Singh, (2007)3 scc617:AIR 2007SC 581; R.M. Seshadri v.G Vasantha Pai,(1969)I
SCC27.

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 LEGAL ANALYSIS OF PLEADINGS

“Pleadings are very important in civil cases. It is the duty of the lawyer to make a proper
pleading. Since a considerable percentage of litigants are either illiterate or not conversant
with law the duty of the lawyer of becomes more relevant facts of the case from the client.
The lawyer has to even to anticipate probable evidence that may be let in. All the details
should be comprehended, analyzed and assimilated before drafting the pleadings. A good
case may sometimes be lost because of bad drafting.”

“Pleading are intended to put forth the case of the parties before court. Pleadings constitute
the basis for the litigation. By the pleadings, the point at issue between the parties should be
clear and ambiguous. The opposite party is made known of the case of the other party by the
pleadings. While drafting the pleadings there should be no attempt to concealment of the
relevant facts. Astuteness in drafting is necessary. But it should not go to the extent of putting
the opposite party to surprise. From the pleadings, either party should be able to know what
his opponent’s case is and what case he has to meet. The parties should get a fair idea from
the pleadings as to what disputes involved in the case effectually and completely. Proper
pleadings would enable the court to raise proper issue for trial. It would enable the parties to
adduce proper evidence. It would enable the court to decide the case effectually and
completely. Proper pleadings would also avoid delay and minimize the expenditure of
litigation. It is the duty of the lawyer to ensure that correct facts are brought before the court.
He should ensure that wrong facts, calculated to mislead the court are not pleaded. Judicial
Pronouncements are effect to the effect that without proper pleadings, any amount of
evidence is of no use and that such evidence shall not be looked into by the court.”

“The Rules regarding pleading are provided in the Code of Civil Procedure Code. Certain
other statues also provide for particular facts to be pleaded. For example: Specific Relief Act,
section 16(c) and 22. Certain defense would be available to a defendant, in the light of the
provisions of a statute. Such defense should not be omitted to be taken. The client would be
able to supply only facts. It is the duty of the lawyer to put forth the relevant facts in the
pleadings so as to make a foundation for a claim of defense, taken into account the relevant
provision of law. The role of the lawyer is very important in that context.”

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“Every pleading shall contain, and contain only, a stamen in a concise form of the material
facts on which the party pleading relies for his claim or defense, nut not the evidence by
which they are to be proved. The pleading shall be divided into paragraphs and numbered
consecutively. Dates, sums and numbers shall be shown in figures as well as in words. If the
party relies on any misinterpretation, fraud or breach of trust, willful default or undue
influence, the facts constituting the same should be specifically pleaded. The burden of proof
of misinterpretation, frauds and undue influence is on the party who alleges the same.”

“Any condition precedent, the performance of occurrence of which is intended to be

contested, shall be distinctly be specified in the pleadings. No pleading shall except by way
of amendment raise any new ground of claim or contain any allegation of fact inconsistent
with the previous ruling of the party pleading the same. The provision for amendment of
pleadings is contained in Rule 17 of Order VI. It is true that the court may allow amendment
of pleadings at any stage. But after the amendment of CPC by ACT 22 of 2002, the scope of
Rule 17 is restricted.”

“Pleading should not be scandalous, frivolous or vexatious. It should not contain matters
which would tend to prejudice, embarrass or delay the fair trial of the suit of which is
otherwise an abuse of the process of the court. The court has jurisdiction to strike out such
pleadings or portion of the same or to direct the parties to amend the pleadings.”

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 RULES REGARDING PLEADINGS

The rules regarding pleadings are as under:

1. A pleading must state facts and not law.

2. It must contain only material facts on which the party pleading relies for his claim or
defense.

3. It must state only the facts on which the party pleading relies for his claim or defense, and
not the evidence by which they are to be proved.

4. The facts must be in the form of a concise statement but in aiming at conciseness, precision
should not be sacrificed. The pleadings, when necessary, shall be divided into paragraphs,
numbered consecutively and each allegation being, so far as is convenient, contained in a
separate paragraph. Dates, sums and figures shall be expressed in figures.

5. Allegations in anticipation of the opponent’s answer should not be made. The pleading
should be confined to what is material at the present stage of the suit.

6. Facts necessary for the enforcement of a legal right or duty must be mentioned. Thus in a
suit for breach of contract on account of the negligence of the defendant, it has to be stated
specifically what kind of duty the defendant owed to the plaintiff and how was he negligent.
7. Performance of a condition precedent being implied in every pleading it need not be
alleged; the opposite party must specify distinctly the conditions, the performance or
occurrence of which he intends to contest.

8. Where the contents of any documents 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.

9. Facts which the law presumes in one’s favor or as to which the burden of proof lies upon
the opponent need not be pleaded.

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10. The party should not plead conclusions of law. The pious obligation of a Hindu son to
pay his father’s debts need not be pleaded. But foreign law and certain customs and usages
are not judicially taken notice by courts and must be pleaded as facts
.
11. Legal pleas such as estoppel, limitation and res-judicata may be pleaded.
12. In case where the party pleading relies on any misrepresentation, fraud, breach of trust,
willful default or undue influence, particulars shall be stated in the plaint.

The person verifying the pleading shall also furnish an affidavit in support of his pleadings.

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 Particulars to be given where necessary

“In all cases in which the party pleading relies on any misrepresentation, fraud, breach of
trust, willful default, or undue influence, and in all other cases in which particulars may be
necessary beyond such as are exemplified in the forms aforesaid, particulars (with date and
items if necessary) shall be stated in the pleading.”
The most challenging problem facing the administration of justice in India is the backlog and
resulting delay in criminal and civil cases at every level, from the lower courts to the
Supreme Court. One of the provisions which contribute to it is provision related to
amendment of pleadings given in Order VI, rule 17 of the Code of Civil Procedure.
“Order VI, Rule 17 of the Code of Civil Procedure deals with amendment of pleadings.
Pleadings are the case of the Plaintiff or the Defendant in Plaint and Written Statement
respectively. An amendment can be by way of altering something, modifying something,
deleting something.”

Amendment of pleadings
“The Court may at any stage of the proceedings allow both party to alter or amend his
pleadings in such manner and on such terms as may be just and all such amendments shall be
made as may be necessary for the purpose of determining the real question in controversy
between the parties. Provided that no application for amendment shall be allowed after the
trial has commenced, unless the Court comes to the conclusion that in spite of due diligence,
the party could not have raised the matter before the commencement of trial.”

Amendment and its objectives

“As stated earlier, essential details have to be mentioned in the plaint and unnecessary details
have to be struck out. The paramount object behind Amendment is that the courts should try
the merits of the cases that come before them and should consequently allow all amendments
that may be necessary for determining the real question in controversy between the parties
provided it does not cause injustice or prejudice to the other side. Ultimately, the courts exist
for doing justice between the parties and not for punishing them, and they are empowered to
grant amendments of pleadings in the larger interest of doing full and complete justice to
parties Provisions for the amendment of pleading are contained to promote end of justice and
not for defeating them. Further in the leading case of Cropper v. Smith, the object underlying

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the amendment of pleadings has been laid down by Bowen, L.J. in the following words: “I
think it is well-established principle that the object of the courts is to decide the rights of the
parties and not to punish them for mistakes they make in the conduct of their cases by
deciding otherwise than in accordance with their rights.”

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 ROLE OF JUDICIARY
In a setup like ours, where there is no strict separation of powers, judiciary can step into
legislature’s shoes if situations demand so. Accordingly, whenever there are lacunae or gaps
left in by legislature, the judiciary fills that gap so that justice is met in all probable situations
.
Judicial Law Making (Important Legal Principles Set Out By Judiciary):
In Bhagwati Prasad vs. Shri Chandramaul31: Supreme Court ruled out that
“If a plea is not specifically made and yet it is covered by an issue by implication, and the
parties knew that the said plea was involved in the trial, then the mere fact that the plea was
not expressly taken in the pleadings would not necessarily disentitle a party from relying
upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief
should be founded on pleadings made by the parties. But where the substantial matter relating
to the title of both parties to the suit was touched, tough indirectly or even obscurely in the
issues, and evidence has been led about them then the argument that a particular matter was
not expressly taken in the pleadings would be purely formal and technical and cannot succeed
in every case.”

“In Lalita Prasad v. Gajadhar32, it was observed that a pleading must not set forth a public
statute, for the court is bound to take judicial notice of it. It should set out only facts, and the
relief sought, and not the law or the particular section of the statute under which the claim is
made. Nor should the parties plead conclusions of law or of mixed law and fact. It is for the
court to declare law arising upon the facts before it. The parties should state only the facts on
which they rely for their claim or defence.”

Guidelines for amendment of pleadings as set by judiciary in various cases:

31
Bhagwati Prasad vs. Shri Chandramaul , AIR 1966 SC 735.
32
Lalita Prasad v. Gajadhar , AIR 1933 All 235, also Syed Dastagir v. Gupalkrishna, (1999) 6 SCC 337

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In Hanuwant Singh Rawat V. M/s Rajputana Automobiles, Ajmer 33, the Rajasthan High
Court summarised the legal position as under:-

(i) That the amendment of pleadings should ordinarily be allowed by the Court, once
it is satisfied that the amendment is necessary for the just and proper decision of
the controversy between the parties;

(ii) The amendment of pleadings should not ordinarily be declined only on the ground
of delay on the part of the appellant in seeking leave of the Court to amend the
pleadings, if the opposite party can suitably be compensated by means of costs
etc. Even inconsistent pleas can be allowed to be raised by amendment in the
pleadings;

(iii) However, amendment of pleadings cannot be allowed so as to completely alter the

nature of the Suit;

(iv) Amendment of the pleadings must not be allowed when amendment is not
necessary for the purpose of determining the real question(s) in the controversy
between the parties;

(v) The amendment should be refused where the plaintiff’s Suit would be wholly
displaced by the proposed amendment;

(vi) Where the effect of the amendment would be to take away from the defendant a
legal right which has accrued to him by lapse of time or by operation of some law;

(vii) The amendment in the pleadings should not be allowed where the court finds that
amendment sought for has not been made in good faith or suffers from lack of
bona fides;

(viii) And ordinarily, the amendment must not be allowed where a party wants to
withdraw from the admission made by it in the original pleadings.”

Similarly, in the case of Peethani Suryanarayana v. Repaka Venkata Ramana Kishore 34,
it was held that the Courts hold the power to allow such amendment provided: (a)

33
Hanuwant Singh Rawat V. M/s Rajputana Automobiles, Ajmer (1993) 1 WLC 625
34
Peethani Suryanarayana v. Repaka Venkata Ramana Kishore (2009) 11 SCC 308.

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Application is bonafide (b) Does not cause injustice to the other side (c) Does not affect the
right(s) already accrued to the other side.

Amendment should not change the basic structure of the Suit:-

“In Sampat Kumar V. Ayyakannu & Anr. 35, the Supreme Court held that any amendment
seeking to introduce a cause of action, which arose during pendency of the Suit, may be
permitted in order to avoid multiplicity of Suit. But, it should not change the basic structure
of the Suit. More so, the court should be liberal to allow amendment at the time of pre-trial of
a Suit but must be strict and examine the issue of delay where the application for amendment
is filed at a much belated stage of commencement of the trial.”

In Bharat Karsondas Thakkar V. M/s Kiran Construction Co. & Ors. 36, the Supreme
Court held that amendment is not permissible if it changes the nature of suit.

“In Ajendraprasadji N. Pande & Anr. V. Swami Keshavprakeshdasji N. & Ors., 37 the
Supreme Court considered the scope of amendment in Order VI Rule 17 C.P.C. by adding a
proviso to the effect that amendment application should be filed prior to commencement of
the trial. The Apex Court held that trial commences when the issues are settled and case is set
down for recording of evidence. The Apex Court observed that unless the party satisfies the
Court that in spite of due diligence, the issue could not be raised in the suit or proceedings
before the commencement of trial, the amendment should not be allowed. While deciding the
said case, the Apex Court considered a large number of its earlier judgments particularly B.K.
Narayana Pillai V. Parmeshwaran Pillai & Anr. 38; Kailash V. Nankhu & Ors.39; & Baldev
Singh & Ors. Manohar Singh & Anr.40, wherein it had been held that the delay of its own,
untouched by fraud is not a ground for rejecting the application for amendment. The
provisions are procedural, and therefore, should be construed liberally to advance the case of
justice and not to retard or to defeat justice.””

35
Sampat Kumar V. Ayyakannu & Anr (2002) 7 SCC 559.
36
Bharat Karsondas Thakkar V. M/s Kiran Construction Co. & Ors 2008 AIR SCW 3192.
37
Ajendraprasadji N. Pande & Anr. V. Swami Keshavprakeshdasji N. & Ors ,2007 AIR SCW 513
38
B.K. Narayana Pillai V. Parmeshwaran Pillai & Anr (2001) 1 SCC 712
39
Kailash V. Nankhu & Ors (2005) 4 SCC 480
40
Baldev Singh & Ors. Manohar Singh & Anr. (2006) 6 SCC 498

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 CONCLUSION

“Pleadings provide a guide for the proper mode of trial. It basically establishes the issues
between the parties for the final decision of the court at the trial, they manifest and exhibit
their significance throughout the whole process of the litigation. Furthermore, it even
demonstrates upon which party the burden of proof lies and who has the right to open the
case. They also determine the range off permissible evidence which the parties should adduce
at the trial. Moreover, lay down limit on the relief that can be granted by the court. Thus,
pleadings form an integral and the most vital part of the entire law suit”

“However it should be noted, the Court may at any stage of the proceedings permit both the
parties to alter or amend his pleadings in such manner and on such terms as may be just and
all such amendments shall be made as may be necessary for the purpose of determining the
real question in controversy between the parties. Provided that no application for amendment
shall be allowed after the trial has commenced, unless the Court comes to the conclusion that
in spite of due diligence, the party could not have raised the matter before the commencement
of trial. This provision for amendment of the plaint is contained in Rule 17 of Order VI.
Various case laws have been discussed in this project which specifically deal with
amendment of pleadings. For example in the case Hanuwant Singh Rawat V. M/s Rajputana
Automobiles, Ajmer it was held Amendment should not change the basic structure of the Suit
and the same was even held in Bharat Karsondas Thakkar V. M/s Kiran Construction Co. &
Ors. Moreover, in the case of Sampat Kumar V. Ayyakannu & Anr the court laid down the
guidelines for amendment of pleadings. Furthermore, in the case of Lalita Prasad v.
Gajadhar , it was observed that a pleading must not set forth a public statute, for the court is
bound to take judicial notice of it. It should set out only facts, and the relief sought, and not
the law or the particular section of the statute under which the claim is made. Nor should the
parties plead conclusions of law or of mixed law and fact. It is for the court to declare law
arising upon the facts before it. The parties should state only the facts on which they rely for
their claim or defence”

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 BIBLIOGRAPHY

BOOKS REFERRED

 Tandon M. P., The Code of Civil Procedure, 1908, 26th ed., Allahabad Law Agency,
Faridabad, 2008.

 Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, Lucknow, 2014.

 Mulla, The Code of Civil Procedure, 17th ed.,LexisNexis Butterworths Publications,

Delhi, 2007.

 Pandit U. M., Commentary on Civil Procedure Code, Unique Law Publications,

Ahmadabad, 2009.

 Sarkar, Code of Civil Procedure, 11th ed., Wadhawa Publications, Nagpur, 2006.

 The Code of Civil Procedure, 1908.

WEBSITES REFERRED
 http://civilprocedure.uslegal.com/the-course-of-a-civil-lawsuit/the-pleadings-stage-of-
a-case/
 http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=4226&context=fss_papers
 http://www.legalservicesindia.com/article/article/amendment-to-pleadings-and-the-
approach-of-the-judiciary-1427-1.html
 http://www.nja.nic.in/16%20CPC.pdf

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