JOURNAL OF THE INDIAN LAW INSTITUTE

VOLUME 34 JULY-SEPTEMBER 1992 NUMBER 3

PLEADINGS : ROLE AND SIGNIFICANCE

P.M. Bakshi*

I Introduction
THE LAW of procedure is a neglected field of academic study. And within
this subject, pleadings is the most neglected topic. "Pleading*' is the name
given to the statement of the case of each contending party, the plaintiff or
the defendent, in a civil litigation. Like many other English legal terms,
this term has a French origin, being derived from the French splee' (in Eng-
lish, "plea"). This word originally meant a suit or action. The word
"plead" or "pleader" originally conveyed the idea of 'litigating' and later
acquired the meaning of making an allegation in a cause.
Blackstone's description of the concept is of interest.1 "Pleadings are
the mutual altercations between the plaintiff and defendant, which at present
are set down and delivered into the proper office in writing, though formerly
they were put in by their counsel ore tenus or viva voce, in court, and then
minuted down by the chief clerks or prothonotaries; whence, in our old
law French, the pleadings are frequently denominated the parol."

II Importance of pleadings
In all systems of justice, in history, the pleading or statement of the case
of a party has been of great importance. A tribunal administering justice
between contending parties has first to ascertain the subject of controversy,
before it can decide it. In England, in early times, the manner of pleading
acquired a special degree of importance and peculiarity and attracted a great
deal of attention from judges and lawyers.2 It ultimately became a specia-
lised and complicated branch of learning and was expounded by a profu-
sion of literature and judicial decisions in the two or three centuries preceding
the Judicature Act, 1873 (36 and 37 Vic-c 60). This Act came into force on

^Director, Indian Law Institute

1. Richard Couch (ed.) Commentaries on the Laws of England by Sir William Black-
stone, vol. 3, 293 (1944).
2. A.L. Goodhart & H.G. Hanbury (ed.) History of English Law by Holdsworth,
vol. VII, 598 (1966).

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356 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 34 . 3

1st November, 1875, and carried out drastic and far-reaching reforms in
the system of pleading. It continued the reforms commenced by the Com-
mon Law Procedure Acts of 1852 and 1860. The process was completed
by the Rules of the Supreme Court, framed under the Act of 1873, mentioned
above.

Ill The Common Law and Germanic Law

The Common law of pleadings has a mixed origin. In Anglo-American
common law, the idea of pleadings was shaped by the quest for rules for
moulding the controversies to the exigencies of trial. The Germanic for-
mulations were shaped by their consideration for the parties, rather than by
requirements of the court and by the quest of a scientific system, in pre-
ference to a system practically adapted to the end of administration of justice.3
If the object of pleadings is to ascertain what is to be decided in the court,
the common law narrowed it to bringing the contentions of the party to an
"issue"—a single affirmation of one party, denied by the other party. Under
the Roman Law, the party who detailed the facts had to prove them, with
no need of a formal denial in order to put them in an "issue". But the com-
mon law rule requires that the parties should first come to issue, that is to
say, they must so plead as to develop some "issue-fact" of their own alle-
gations. Incidentally, it was a rule of Germanic law, that what is not
denied by the opposite party is taken as admitted. This particular rule
has been adopted in the common law rule, which requires the party replying
to plead, either by "traverse" or by way of "confession and avoidance "
IV Demerits of the old system
In England, the systems of common law and equity pleading and proce-
dure had, by their excess of elaboration and rigidity, become a hindrance,
rather than an aid to justice. The system had the status of an exact science,
but it became also an occult science, and was the subject of unfavourable,
comment. Even Blackstone, a great exponent and admirer of the common
law system, said that the art of special pleading was "perverted to the pur-
poses of chicane and delay".4 The system was exalted by lawyers and judges
often to the detriment of the merits of a cause. Courts were concerned
with points of pleading, rather than with questions of substance.6 "Every
fourth case decided a question on the pleadings. Pleading ran riot".
The approach of equity in regard to pleadings was liberal in the beginning,
but in course of time, the evils of equity pleading and procedure also became
notorious and attracted widespread condemnation. Though equity plea-

3. Pound, Jurisprudence vol 5, 470, (1959).

4. Blackstone, Commentaries, supra note 1, vol. Ill, at 305-306.
5. Holdsworth History of English Law, vol DC, 325 (1926) citing C.B. Whittier,
"Notice Pleading" 31 Harv% L.R 507.

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1992) PLEADINGS : ROLE AND SIGNIFICANCE 357

ding was initially free from the subtelties of the common law system of
special pleading, ultimately it also became quite as artificial and technical;
and was infinitely more dilatory and expensive.
V The present system in England
The salient characteristics of the two systems of pleading, and the object
aimed at by the new system which had superseded them, were stated by the
Judicature Commissioners, in England, in these words :6
Common law pleadings are apt to be mixed averments of law and
fact, varied and multiplied in form, and leading to a great number of
useless issues, while the facts which lie behind them are seldom
clearly discoverable. Equity pleadings, on the other hand, commonly
take the form of prolix narrative of the facts relied upon by the party,
with copies or extracts of deeds* correspondence* and other docu-
ments and other particulars of evidence, set forth at needless length.
The best system would be one, which combined the comparative
brievity of the simpler forms of common law pleading with the
principles of stating, intelligibly and not technically, the substance
of the facts relied upon as constituting the plaintiff's or the defendents'
case, as distinguished from his evidence.
VI Position in India
The English system as it stood then, has been substantially reproduced
in India by the Code of Civil Procedure. The object was to introduce
scientific and efficient pleadings in place of the loose, prolix and pointless
ones which had, on all hands, been deplored as a serious defect in Indian
litigation. In 1924, the Civil Justice Committee7 reported that these defects
still persisted and suggested the desirability of publications of treatises in
India, for training lawyers in drafting pleadings. Since then, there have
been a few good treatises on the subject, though not all of these are well
known. It may be mentioned that in England, 51 books were published8
on practice and pleadings between 1668 and 1700.
VII Merits of good pleading
The merit of a good pleading consists in the fact that at a glance, the
judge knows what kind of action he is trying; all concerned know what
facts have got to be established; and it is apparent upon whom the burden
of proof lies. The following observation of Lord Halsbury in a Privy
Council appeal is appropriate, in this context :0

6. Id. at 407 citing Parliamentary Papers (1868-1869), xxv, II.

7. Civil Justice Committee, Report 31-134 (1924).
8. Holdsworth, History of English Law, vol. VI, Appendix IV.
9. Sayeed Muhamad v. Fateh Muhamad (1894) ILR 22 CaL 325, 331 (P.C). Cf.
Palmer v. Guadagni. (1906), 2 Ch. 494, 497 (Swinfen. Eady. J).

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358 JO URNAL OF THE INDIAN LA W INSTITUTE [Vol. 34 ; 3

Whatever system of pleading 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 an opportunity of bringing
forward such evidence as may be appropriate to the issue.
Another famous English Judge, Jessel, M.R. had made a similar obser-
vation regarding the object of pleadings :10
The whole object of pleadings is to bring the parties to an issue, and
the meaning of the rules of Order XIX (R.S.C.) was to prevent the
issue being enlarged which would prevent either party knowing,
when the cause came on for trial, what the real point to be discussed
and decide was. In fact, the whole meaning of the system is to
narrow the parties to definite issue, and thereby to diminish expenses
and delay, especially as regards the amount of testimony required
on either side at the hearing.
Pleadings are particularly required, where difficult issues are involved.11

VIII Objectives
The system of pleadings operating at present achieves the following
important objectives.
(a) It shows, at a glance, the vital averments;
(b) It shows, at a glance, which vital averments are disputed;
(c) It enables issues to be settled almost immediately and without
going into the details shown in the "particulars".
The system is also designed, to ensure another important quality. It
cuts a line between necessary averments and particular averments. Even
where the suit is complex, it will be found that the necessary averments are
few. They are rarely more than six or seven, though the particular facts
are many. Maintaining this distinction makes it easy to get into a habit of
mind, whereby the dispute is analysed into its essential ingredients. Order 6,
rule 2 of the Code of Civil Procedure, 1908 brings out this feature of
pleadings.12

IX Spirit of the rules

The law of pleadings can achieve its object only if the rules are followed
in their true spirit. In England, a very knowledgeable person, Master

10. Throp v. Holdsworth (1876), 3 Ch. 547, 639 (C.A.).

11. See General Electrical Co. (of U.S.A.) v. General Electrical Co. Ltd., (1972), 1
WLR 729, 735 (H.L.).
12. Nazir Abbas v. Raja Ajam Shah A.I.R. 1949 Nag. 60.

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1992] PLEADINGS : ROLE AND SIGNIFICANCE 359

IH, Jacob,13 has pointed out that pleadings manifest and assert their
influence through out the whole process of litigation. The point can be
elaborated by referring to some of the important functions of pleadings,
which are as follows :
(a) Pleadings define the issues between the parties.14
(b) Pleadings also contain the particulars of the allegations in respect of
which "further and better particulars" may be requested or ordered.
(c) They limit the ambit and range of discovery of documents and
queries in the form of interrogatories.
(d) They show on the face, whether a cause of action or defence is
disclosed.
(e) They provide a guide for the proper mode of trial.

(/) They provide the basis for the defence of res judicata in sub-
sequent proceedings.

X Foundation of the litigation

In one sense, pleadings are their own rewards, for they seldom attract
attention, as the part played by pleader in an action is not spectacular.
But it is obvious that pleadings lay the foundation of the entire litigation.
The importance of pleadings and their binding effect has been strongly
reiterated, in one case, by the House of Lords.15 In that case, damage had
been caused to certain property owned by the Southport Corporation, as
a result of certain steps taken by the master of a tanker belonging to the
Esso Company, those steps being, in the judgment of the master, necessary
to avoid probable loss of life and loss of the master's tanker. This complex
issue raised various nice questions of nuisance, negligence, and trespass.
The House of Lords held, not only that the Southport Corporation failed
on their pleadings, but also, that they were bound by their pleadings.
The case was heard in the first instance by Devlin, J. with the Southport
Corporation as plaintiffs and the Esso Company and the master as defen-
dants.16 The plaintiffs, by their pleadings, made certain specific allegations
of negligence on the part of the master of the tanker and claimed that the
company were vicariously liable as his employers.
Devlin, J. held that all the specific allegations failed and, accordingly
dismissed the action. The Court of Appeal, however, by a majority decision,
allowed the Corporation to prefer against the company a wholly new charge.17

13. The Present Importance of Pleadings", Current Legal Problems 171 (i960).
14. Cf. London and Lancashire Ins. Co. v. Benoy; Kreshna, A.I.R. 1945 Cal. 218.
15. Esso Petroleum Co. Ltd. v. South Corporation (1955) 3 All E.R. 864, 871.
16. (1953) 2 All E.R. 1204.
17. (1954) 2 AIL E.R. 5611

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This inevitably led to the success of the appeal. But the House of Lords
unanimously restored the findings of Mr. Justice Devlin, and each member
of the House adverted to the form of the pleadings. Thus, Lord Radcliffe
observed :

My Lords, 1 think that this case ought to be decided in accordance

with the pleadings... .Proper use of them shortens the hearing and
reduces costs. But, if an appellate court is to treat reliance on
them as pedantry or as mere formalism, I do not see what part they
have to play in our trial system.
An Lord Normand observed :
I wish to associate myself with the observations of my noble and
learned friend, Lord Radcliffe, on the value of the pleadings. To
condemn a party on a ground of which no fair notice has been given,
may be as great a denial of justice, as to condemn him on a ground
on which his evidence has been imporperly excluded.

XI Good Pleadings : Essentials

it has been said that good pleading consists in good matter, pleaded
in good form, in apt time, and in due order.18
"Good matter," of course, includes all facts and circumstances necessary
to constitute the cause of action or the ground of defence, and no more.
"Good form", in the context of pleadings, postulates that the facts
should be stated logically in their natural order with certainty, that is to
say, clearly and distinctly, so that the party who has to answer, as well as
the court may readily understand allegations, and ambiguous and doubtful
statements, argumentative matter, and matter similarly defective is avoided.
"Apt time" is a question of limitation.
"Due order", is a question of proper arrangement.10
A leading English book on pleadings20 deals with the importance of
pleadings in the following words :
A party is not well served if his pleading is drafted in a hurried,
shoddy, slipshod, unthinking manner, on the basis that whatever
is stated in the pleading will do and may be developed by particulars
or discovery or evidence at the trial or may be amended in due
course; and, conversely, a party is well served whose pleading states
his case with clarity and precision, with full particulars and details,
with understanding of the law, an insight into the substantive rights

18. Coke on Littleton, 303 cited in Bouvier's Law Dictionary, vol. 2, 2602, (1914).
19. Ibid.
20. Bullen, Leake and Jacob's Precedents of Pleadings 17 (1975).

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1992] PLEADINGS : ROLE AND SIGNIFICANCE 361

of the parties, and intelligent anticipation of how the case of the

party will need to be prepared and presented to the court. The one
kind of pleading lays bare the weakness of the party's case : the
other kind clothes it with strength and substance. The drafting of a
pleading is the equivalent of laying the foundation on which to
build the claim or defence of a party, and as the foundation is laid,
whether badly or well and truly, so will the claim or defence be weak
and fail or be well sustained and upheld. Pleadings should therefore
be drafted with all due care and circumspection, and they require
the exercise of much skill and not a little art, to fulfil their whole
function.

XII Pleadings and evidence

fn India, it is of particular importance to note that pleadings, by defining

the issues, also define the scope of the evidence, because in civil cases the
evidence that can be admitted is necessarily linked, with what are known
as facts in issue. Besides this, the adversary system of trial necessitates
clear and complete pleadings, in order that the court may derive the best
assistance from the parties. It was pointed out long ago,21 that in the
common law system, the court acts as a kind of umpire to decide the matters
in controversy between the parties. Lord Justice Pearce, sitting in the
Court of Appeal, pointed out that in a civil suit, the function of a court is
not inquisitorial.22
A party need not allege a fact which he is not required to establish
or prove, in order to obtain the relief sought. To take an illustration
A sues on a bond and B (the defendant) has pleaded payment and alleged
a receipt (though really, he should allege no such thing, as it is merely
evidence). The receipt is a forgery. The plaintiff need not reply that it
is a forgery. The plaintiff has not got to prove forgery of the receipt, but
the truth of the bond. Still less, has he to allege forgery of the receipt.
He is not admitting the receipt and avoiding its effect. He is denying the
receipt. The receipt is a mere piece of evidence. It will be put to the
plaintiff or his witness in the witness box. It should probably be produced
at the first hearing. But, even if it is not produced, the plaintiff will know
all about it, because it will have appeared in the defendant's affidavit of
documents. Plaintiff should be prepared to deal with it. The plaintiff
can call witnesses to say that it is a forgery. If the receipt has not been
disclosed, it is not admissible. If the receipt is not so produced, it would
carry little weight, if the bond remained with the plaintiff. The general
buden of proof here, if the bond were denied, would be on the plaintiff.
If the bond were admitted and payment alleged, the burden would be on

21. Holdsworth, supra note 5 at 280-81

22. Fallon v. Calvert, (1960) 2 B. 211. 214.

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362 JOURNAL OFTHE INDIANLAW INSTITUTE [Vol 34 3

the defendant and it is the defendant who would begin. This is according
to the rule "Who loses, if nothing is proved?"
To take another illustration, in a case of alleged negligence, a possible
defence would be that the plaintiff himself was guilty of contributory negli-
gence. The plaintiff should not reply to such an allegation (if made by the
defendant) unless the plaintiff desires to take the plea of "confession and
avoidance "

XIII Confession and avoidance

The fundamental idea underlying pleadings is to get to an issue. An
issue is reached when one side says, "I allege fact A" and (/) the other side
says, "I deny fact A" or (//) the other side says, "I do admit fact A, but
allege fact B". He will advance this plea where fact B destroys the effect
of his admission, i.e. his admission of fact A. This is called a plea of
"confession and avoidance". An example of such a plea is—(/) an admi-
ssion of execution of the bond which is sued on an (ii) an allegation of
discharge of the bond by payment or allegation of fraud or undue influence
in obtaining the bond. The plaintiff, in reply, may deny fact B or (in his
turn) "confess and avoid", by admitting fact B and pleading fact C, which
would avoid the effect of his admission of fact B. But this process must
finally end with a denial or a refusal to admit a fact alleged on the other
side.

XIV Scope of factual allegations

We can now consider the scope of factual allegations. The purpose of a
pleading is, first of all, to allege all those facts, (and no more) that are
necessary to create or destroy the cause of action; and secondly, to allege
those facts with such particularity, that the other side will know exactly
the case of the party pleading. As Sir George Lowndes has said,23 "the
object of pleading is to give fair notice to each party of what his opponent's
case is". So far as the formulation of the 'cause of action' is concerned,
nothing more is called for. The purpose of the pleading is to define the
action, not to win it.

XV Cause of action
Cause of action forms the core of the system of pleadings. In an English
ca<?e, this expression has been defined by Lord Esher to be "every fact which
it would be necessary for the plaintiff to prove, if traversed, in order to
support his right to judgment of the court. It does not comprise every
piece of evidence which is necessary to prove such fact, but every fact which
is necessary to be proved."24
23. Lai Karamchand Milan v. Firm Milan A.I.R. 1938 P.C. 121, 123.
24. Read v. Brown (1888) 22 Q.B.D. 123, 128 Ox>rd Esher).

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1992] PLEADINGS : ROLE AND SIGNIFICANCE 363

[t has been described by Chief Justice Rankin as the entire set of facts
that gives rise to an enforceable claim.25 It comprises the congeries of
facts which it is necessary for the plaintiff to establish, before he can ask
the court to grant the relief which he claims in the suit.26 The English
case mentioned above27 has been followed in India.28
The cause of action has no relation whatever to the defence which may
be set up by the defendant; nor does it depend on the character of the
relief prayed for, by the plaintiff.
The cause of action refers only to the grounds or 'the media' upon which
the plaintiff asks the court to arrive at a conclusion, in his favour.29 For
instance, in an action for damages for breach of contract, the cause of action
consists of the contract and its breach. The facts constituting damage arising
from the breach are, in general, no part of the cause of action. But, if it is
desired to make a claim on the basis of special loss, then, in order to avoid
surprise to the other party, it is desirable to plead the special damage. The
facts making up the cause of action should obviously have arisen before the
action. In other words, the cause of action must be antecedent to the
suit.30 Otherwise, the plaint would be rejected as disclosing no cause of
action.
The pleading of the plaintiff has also to state other facts, besides those
which constitute the cause of action. Among these additional facts, are
facts which show that the suit is in time, facts indicating the value of the
suit for the purposes of jurisdiction and court fee, matters of "inducement"
or introduction to the material facts of the cause of action, facts relating
to damages (where relevant), and facts required to be stated in the pleadings
by any special law. These additional facts should not, however, be allowed
to obscure the essential parts of a pleading.
The lawyer ought to consider, at the very beginning, what is the cause
of action which he is pursuing. When he has made clear in his own mind
what the cause of action is, he should examine what are the various facts
which it is necessary to prove, in order to establish that cause of action.
His business is to restrict his allegations (relating to 'cause of action') to
those facts and to plead no others. He has to remember that every single

25. Engineering Supplies Ltd. v. Dhandbania & Co., (1931) I.L.R. 58 Cal. 539; A.I.R.
1931 Cal. 659, 663 per Rankin CJ.
26. Samarendranath Mitra v. Pyareecharan Laha, A.I.R. 1935 Cal. 160, 167 (per Cos-
tello J.)
27. Read v. Brown supra note 24.
28. Murli v. Bhola Ram I.L.R. 16 All. 165 (F.B.), Guardianship Assuumce Co. Ltd.,
v. Thakur Shiva Mangal IL.R. (1937) All. 234. Beni Madhab Sikdar v. Saral Chandra, A.I.R.
1937, Cal. 643; Sheo Kumar v. Bachan Singh, A.I.R. 1940 Pat 76.
29. ChandKour v. Partab Singh (1889) I.L.R. 16 Cal. 98, 102; (1888) 15 LA. 156,
158 (P.C.)
30. Mohant Govind Ramanuj v. Rani Debendrabala, (1919) 4 Pat. LJ. 387, 393

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364 JOURNAL OP THE INDIAN LAW INSTITUTE [Vol. 34 :3

allegation that he makes, places an additional burden of proof on his client

and throws the client open to a demand by his adversary for "particulars."

XVI Defendant's pleading

Similarly, the defendant's pleading should state, with brevity, the facts
which destroy the plaintiff's cause of action if he is "confessing and avoiding"
or making positive allegations. If he is merely "traversing", all that the
defendant has to do, is to deny the facts specifically. It may be mentioned
that "travers" means a formal denial of a matter of fact. In a plea of
confession and avoidance, a fact is admitted, but its legal effect is denied

XVII Particulars and the aspect of fairness

The whole purpose of a trial is to be as fair as one can, to both the
sides. It is not desirable that a litigant should win by trapping his aversary.
The legal debate should be a fair discussion, untrammelled, as far as possible,
by technicalities, in which neither party is taken by surprise. The contest
should be one in which each side comes into court, knowing what case he
has to meet, so that he may have his evidence ready, which will enable him
to contest the facts alleged by the other side. Now, in order that any man
may so arm himself with witnesses and documents, he must know, with
precision, what fact it is that is laid to his account. For this purpose, it
is necessary that the fact should be delimited in point of space and time.
For example, it would be of little service to a defendant who is charged
with running over the plaintiff in a motor car, if the plaintiff merely makes
that allegation, without date or time. The defendant would like to know,
with sufficient particularity, the witnesses who were present at that place
and at that time. Thus, the allegation should be specific as to place and
as to time; if the facts alleged consist of a speech, the essence of the speech
should be stated. If it is a letter, its date should be stated. If it is a docu-
ment, its date of execution, form and date of registration, should be stated.

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