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Overview of Indian Contract Act, Core processes of a Contract. Important clauses in a commercial contract. 3. TYPES OF AGREEMENTS /. The Indian Draftsman; Guide to Legal Drafting (); 10th Ed. Rev. by Conveyancing Precedents and Forms (); 4th Ed., Eastern Book. Agreements Company Law · Agreements Compromise and Settlements · Agreements Consumer Law Drafting Criminal Template.

The art of drafting the pleadings has not yet fully developed in spite of the increase in the civil litigation. As a matter of fact, the art of pleading should be the foundation course and great emphasis should be laid on this paper. Because of this absence of rigorous training, the young lawyers often indulge in prolixity rather than clarity and conciseness. Many dead-sure-win cases drag on for years in the courts only because of faulty. S drafting.

The administration at justice was separated from the executive and assigned to the court of law. Complexity of resulted in enormous litigation, and oral hearing of the ancient times became almost impossible. Scribes used to keep records of all the proceedings Gradually this procedure was also abandoned and the litigants were allowed to bring their claims and contetions duly drawn up to fie them before the Honb6e courts.

When this change exactly happened, it is difficult to say. Experience was a better teacher; and the changes in court procedure took place not only in the light of the past experience but also in the face of expediency.

Written proceedings S tu d yn a m a. KAM KUS 2 made the task of the courts of law easier and less complicated than the earlier oral proceedings. By the turn of 19th century the procedure of pleadings has become fairly elaborate and systematized. When the civil codes came to be drafted, the principles of pleadings were also given statutory form. Vide order VI Rule 1 "pleading". Shall mean plaint or written statement. Mogha has elaborated this definition when he remarked that "pleadings are statements, written, drawn up and filed by each party to a case, stating what his contentions will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer".

The document stating the cause of action and other necessary details and particulars in support of the claim of the plaintiff is called the "plaint". The defence statement containing all material facts and other details filed by the defendant is called the "written statement". The written statement is filed by the defendant as an answer to the contentions of the plaintiff and it contains all materials and other objections which the defendant might place before the court to admit or deny the claim of the plaintiff.

Pleadings are, therefore, the foundation of any litigation, and must be very carefully drafted. Any material omission in the pleading can entail serious cones quinces, because at the evidence and argument stages, parties are not permitted to depart from the points and issues raised in the pleadings, nor can a party be allowed to raise subsequently, except by way of amendment, any new ground of claim or any allegation of fact inconsistent with the previous pleadings of the party pleading the same.

In some cases the court may allow amendment of the plaint or the written statement on the application of a party. Another case of departure is where a party pleads for set-off. Pleadings contain material facts, contentions and claim of the plaintiff, and the material facts, contentions, denials or admissions of claims by the defendants.

There may also be counter claims by the defendant which may of two categories - i a claim to set-off against the plaintiff's demand is covered by order 8 Rule 6, and ii and independent counter claims which is not exactly set off but falls under some other statute. While the former is permitted to be pleaded by the courts, the latter is not, but when the. Object of Pleadings The whole object of pleading is to give a fair notice to each party of what the opponent's case is.

Pleadings bring forth the real matters in dispute between the parties. It is necessary for the parties to know each other's stand, what facts are admitted and what denied, so that at the trial they are prepared to meet them. Pleadings also eliminate the element of surprise during the trial, besides eradicating irrelevant matters which are admitted to be true.

The facts admitted by any parties need not be pursued or proved. Thus the pleadings save the parties much bother, expense and trouble of adducing evidence in support of matters already admitted by a party, and they can concentrate their evidence to the issue framed by the Court in the light of the facts alleged by one party and denied by the other.

There is another advantage of the pleadings. The parties come to know before hand what points the opposite party will raise at the trial, and thus they are a prepared to meet them and are not taken by surprise, which would certainly be the case if there were no obligatory rules of pleadings whereby the parties are compelled to lay bare there cases before the opposite party prior to the commencement of the actual trial.

On the basis of above discussion we deduce the following fundamental rules of pleading, which also have been incorporated in order VI of the Civil Procedure Code Facts and Not Law: One of the fundamental rules of pleadings embodied in order VI rule 2 is that a pleading shall contain and contain only a statement of facts and not law. And it is for the judge to draw such inferences from those facts as are permissible under the law of which he is bound to take judicial notice. Ajudge is bound to apply the correct law and draw correct legal inferences and facts, even if the party has been foolish to make a written statement about the law applicable of those facts.

If a plaintiff asserts a right in himself without showing on what facts his claim of right is funded or asserts that defendant is indebted to him or owes him a duty without alleging the facts out of which indebtedness or duty arises, his pleading is bad. The parties should not take legal pleas but state the facts on the basis of which such legal conclusions may logically follow and which the court would take a judicial notice of.

Thus where a party pleads that the act of the defendant was unlawful, or that the defendant is guilty of negligence, or that the defendant was legally bound to perform specific contract, such a pleading would be bad. In such cases, the plaintiff must state facts which establish the guilt or negligence of the defendant, or how the particular act of the defendant was unlawful, of the fact leading to the contract which thus bound the defendant.

Thus in a declaratory suit, it is not enough-to plead that the plaintiff is the legal heir of the deceased for this is an inference of law. The plaintiff must show how he was related to the deceased, and also show the relationship of other claimants, and other material facts to show that he was nearer in relation to the deceased than the other claimants. Similarly on money suit it is not enough that the plaintiff is entitled to get money from the defendant.

He must state the facts showing his title to the money. For example, he should state that the defendant took loan from the plaintiff on such and such date and promised to return the money along with specified interest on a particular date, and that he requested the defendant to return the said amount after the date but that he refused to return the money.

If some witnesses were present when the money was lent or when the demand was made or when the refusal by the defendant was made, the fact should be stated specifically, for at the time of the trial the court may order the plaintiff to adduce evidence in support of his statement, and then he can rely on the evidence of the witnesses in whose presence he had lent money or in whose presence he had made a demand for the return of the money.

In a matrimonial petition, it is not enough to state that the respondent is guilty of cruelty towards the petitioner-wife and that she is entitled to divorce. The petitioner must state all those facts which establish cruelty on the part of the respondent. She may state that her husband is a drunkard and used to come home fully drunk and in a state of intoxication he inflicted physical injuries on her, she should specify dates on which such incidents took place; or that the husband used to abuse her or S tu d yn a m a.

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Plaint Checking under Indian Law

LLB students: KAM KUS 4 beat her in the presence of her friends and relations or that after her marriage she was not allowed to visit her parents or that he was forcing her to part with her dowry, giving threats of physical beating; or that immediately after her marriage till date the respondent did not even talk to her nor he cohabited with her.

It is such facts which can establish physical or mental cruelty. In another example plaintiff files a suit for negligence and damages. It is not enough for him to state negligence. First of all the plaintiff must state those facts which establish the defendant's duty towards the plaintiff. Thereafter, he must state how and in what manner was the defendant guilty of negligence.

Thus he must state all the facts on which his plaint is based. The inference of law to the breach of duty should be left to the court because the correct legal principles will be applied by the court and the plaintiff cannot even add any prayer that a particular legal conclusion which follows must be applied. The only prayer that he may add is that the relief may kindly be granted to him. Omission to state all the fact renders the pleading defective whatever inferences of law might otherwise have been pleaded.

Such a plaint may be rejected on the ground that it discloses no cause of action. The plaintiff or the defendant as the case may be, and his counsel must be on their guard not to omit any facts and straight-a-way jump to pleading legal interference without stating such facts. For example, in a suit for recovery of money for the goods sold, the defendant should not just take the plea that he is not liable.

Such a statement is a plea of law, and can hardly stand and in spite of his good defence his case will fail.

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In such a case the defendant must clearly state that he did not download any goods from the plaintiff nor was there an agreement to do so. He may also state that though the goods were sent to him, but he did not take the delivery as he had placed no order therefore or that the goods were sold to him on credit and the money was to be paid to the plaintiff after the sale of such goods and the goods were still lying with him unsold, and that he was willing to return the goods to the plaintiff in accordance with the written or oral understanding that in case of the goods remaining unsold the same shall be taken back by the plaintiff.

Such facts would be valid pleas. In another example of a suit for defamation and damages, it is not sufficient for the plaintiff to state that the defendant defamed him and therefore he was entitled to damages or special damages. The plaintiff must state all the facts of the defendant act or acts such as his public utterances in which he named the plaintiff and made remarks about his character or profession or the publications in which he was painted in a manner as would in the opinion of a common man lower him in the eyes or estimation of society.

Wherever possible the plaintiff must give the exact words spoken or used in the entire sentence or statement and also give the general, grammatical or implied meaning of such words spoken or used. Wherever there is any ambiguity, he may take the plea of "inuendo" and state how such a remark was commonly understood by persons known to him. Thus the plaintiff should build his case on facts from which the conclusion would naturally and logically follow. Examples of Bad Pleading: Afew instances of bad pleading for the benefit of the law students who whish to join the Bar: Alawyer should be careful while drafting a plaint or a written statement.

Sometimes, there is slight difference between a statement of fact and a statement of law and a lawyer fails to notice it. The mental computer must constantly be at work marshalling the facts and separating such facts from legal inferences. The respondent has deserted the petitioner for a statutory period of one year and above, and hence the petitioner is entitled to divorce. Here the legal inferences have been pleaded. The defendant has not so far paid back the money and hence the plaintiff is entitled to foreclose.

Here only the legal plea has been taken. The plaintiff should have stated all the facts of mortgage and the details of the conditions pertaining to the mortgage. The alienation of property by the father of the plaintiff was not made for legal necessity or it was made for immoral purposes and such alienation is not binding on the plaintiff.

Almost the entire statement is a plea of law and does not state the facts. He should state the nature of alienation, the purpose for which, and the circumstances under which, the alienation was made, and whether it was made in the interest of the family. That at the time of the alienation, no particular benefit would have arisen to the family nor was the honour of the family at stake should be stated.

That the plaintiff has lost all his interest in the family property by virtue of his adoption by another family and therefore he is not entitled to any relief.

The suit is misconceived. The entire statement contains a proposition of law. The defendant must state all facts relating to the adoption of the plaintiff whether there was actual giving and taking of the plaintiff and by whom and in whose presence. That the defendant is liable to render account of income and expenditure in respect of the mortgaged property. The liability pleaded is a statutory liability which the court will take notice of.

The plaintiff should however state all the facts and conditions of mortgage, whether it was a simple mortgage or a usufruct mortgage, and the terms and conditions of the mortgage on the basis of which such a liability on the basis of which such a liability is fixed.

That the defendant has infringed his copyright and therefore he is entitled to damages, in addition to the account of the sales of all books sold so far and to the return of the unsold ones, or that the plaintiff is entitled to an injunction against the defendant directing him not to publish, sell or otherwise pass on the said book.

The plaintiff should state the details of the infringement of his copyright, and also give the passage I chapters I materials in fringed by the defendant has stolen the ideas or the material as such. If he states that infringement of ideas, then he should specify how his ideas, have been utilized with similarities in plan and sequences, scenes, settings etc. That the mortgaged property belonged to a joint Hindu family of which the plaintiff is also a member and that the second defendant could not have legally transferred the same to the first defendant without his consent.

Aproposition of law has been stated. Sometimes the strict rule of pleading that legal inferences must not be pleaded and only facts should be stated is followed in a somewhat diluted form and the courts do not normally insist, in such cases, on the strict observance of the above rule. Occasionally, a plea of law is taken more for the sake of clarity and to show inter-connection between various facts which otherwise may appear to be disjoined.

Such pleadings, if they do not embarrass the other party, are generally tolerated by the Courts. In a suit for recovery of money, if the guardian of the minor defendant pleads that at the time of the alleged loan the defendant was a minor and hence incompetent to contract, such a plea would be tolerated though strictly speaking the S tu d yn a m a. It should be remembered that where such inferences of law are tolerated, they should not be pleaded without pleading the facts.

Thus when facts are so correlated as to justify the legal inferences which necessarily follow, the pleadings can be tolerated. But when legal inferences are pleaded without setting out the facts the pleading would be bad. The rule stated above applies to cases which fall within the purview of the law which the courts are bound to take judicial notice of.

For ex. But the Indian court is not bound to take judicial notice of the foreign law. Thus where the pleadings make any reference to foreign law, or custom such foreign law or must be stated clearly with proper reference to the statute.

Similarly custom may govern the parties to a suit and the Court may not take notice of such custom unless such custom is stated. In matrimonial matters custom has been recognised in certain matters such as marriage between the persons who are spind as or who area within the degrees of prohibited relationship.

If a party proves that a custom prevailed in the community which permitted such a marriage, the pleading would be correct and not bad. Similarly in trade and commerce there are many customs which govern the business relations between the parties.

Such customs ought to be pleaded along with the facts. At the same time, a custom which has been repeatedly brought to the notice of the courts so that it has acquired the force of law need not be pleaded, as the courts would take judicial notice of such a custom. The rule also permits the legal pleas denying the legal right of the other party.

For example, the defendant can take a plea res-judicata as a valid defence against the plaintiff, or limitation can be pleaded in defence. Where a landlord files a suit against a tenant as a trespasser, the defendant can take the legal plea of estopple under s.

Such pleas can be taken, and in fact, must be taken at the first instance by either if the parties, because if such pleas are not taken into the first instances the defaulting party will not be allowed to adduce evidence to prove it. Such a defect may not even be removed by an amendment of the pleading as the courts would not permit such an amendment as it takes away a right which has accrued to the party. In fact, he tries to narrate each and every event which may possibly have a remote bearing upon the case.

Not all such facts are important. If every thing were to be included in the plaint, then the plaint is likely to become so voluminous that the learned judge is likely miss the essential track and be guided by the inessentials.

What is necessary therefore are the facts which are material; facts which have a direct and immediate bearing on the case, facts which are secondary or incidental may easily be omitted.

Of course, the lawyer must weigh each fact and test its significance and relevance in relation to the given case. Marshalling of facts is what a good lawyer would always do before he sets them down in form of a plain. The second fundamental rule of pleading is therefore, that every pleading shall contain and contain only, a statement of the material fact as on which the party pleading relies for his claim or defence. This rule is embodied in order VI Rule 2 and it requires that - I.

He must plead material facts only, and that no fact which is not material should be pleaded, nor should the party plead evidence. The question would naturally arise: Indeed every fact on which the cause of action or the defence is founded is material fact. The purpose entertained by the rule is that every unnecessary and irrelevant fact need not be brought on record, and the rule acts as a damper to the litigants, habit of stating all details that strike their mind, whether such details are relevant or not, it necessitates the process of elimination on the part of the litigant.

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. Then there are other facts which do not directly establish the cause of action or defence but which nonetheless ate material facts in that the party pleading them has an inherent right to prove them at the trial. Whether a particular fact is material or not will depend upon the circumstances of the case. A fact may not appear to be material at the initial stage but it may turn out to be material at the time of the trial.

Thus if a party is not able to decide whether a fact is material or not, or it he entertains a reasonable double as to the materiality of a particular fact, it would be better to include than to exclude, be better to include than to exclude, because 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 unless the pleading is amended under order VI rule The general rule is that a party cannot prove a fact which he has pleaded.

The task of a lawyer is therefore rather difficult. He must observe the rule that only material facts are to be pleaded, and, at the same time, he must not exclude any fact which may seem apparently unnecessary but which may turn out to be material as the trial progresses.

Thus he must visualize all the possible directions or dimensions which the pleadings are likely to assume. An experienced lawyer would marshal all the facts placed before him by his client and by correlating them, and after carefully examining the interplay between such facts, decide what facts are material to establish the cause of action or defence.

There after he would prepare or rough or a mental outline of the pleading and submit all such facts to a close analysis in order to make sure whether if he is able to prove all such material facts he would succeed. Bya process of elimination he must also see whether by excluding certain seemingly immaterial facts from the outline he has prepared, he would still succeed. If he can return an affirmative answer, he should exclude such irrelevant facts, but if the answer be in the negative, then he must include them Another way of testing the materiality of the facts would be to ask whether by proving a particular fact, he would certainly establish the cause of action or the defence.

The idea is that the pleading should not include any fact which would not assist the party even if such a facts is proved. And why at all waste energy, time and money is establishing the correctness or otherwise of a fact which does not advance the party's case? One of the reasons why the litigation drags on for years is that the litigants do not come to the point, there being much about nothing. In India the courts are filled with all sorts of litigation.

The lawyers are taking briefs of all sorts and they are extremely busy. They have hardly any time to examine the materiality of the facts narrated to them by their clients. The pleadings, therefore, become unwidely and voluminous, so much so that at the time of framing the issues, the matter becomes really a hard nut to crack. The litigation drags on withstanding the wishes of the parties to the contrary. It is the duty of the lawyers to ensure that the pleadings.

They should be guided more by their own sense of proportion rather than succumb to every whim or eccentricity of their clients. Instances of Material Facts: In a petition for judicial divorce on the ground of desertion, the fact that the respondent left the petitioner without his consent and without any justifiable excuse is material. Any other fact directly bearing upon her animus desrendi, such as her declaration before the neighbors or other relations that she is leaving the petitioner and that she would not like to go back to him, is also material.

KAM KUS 8 In a suit for ejectment of a trespasser from the land and for injunction it is material to allege that defendant "threatens and intends to repeat the illegal act" similarly if a party seeks a stay order against any authority's act of demolition his premises, shop or building he must allege that he is owner of the property and the plans or the map thereof was duly sanctioned by the appropriate authority. Or if a government land, he must allege that he has been in undisturbed possession thereof for over twelve years.

Such facts are material, because if proved, they will establish the cause of action. In a suit for defamation, it is material to allege that the words were intended to defame the plaintiff or at least they were so understood by men at large, if the words are ambiguous, then "innuendo" must be pleaded that they were ironically used or were intended so to be understood.

Where a party claims the benefit of a special rule or custom then he must allege all facts which bring the case within the ambit of that special rule or custom. For example where a marriage between two spindas or between two persons within the degrees of prohibited relationship is challenged in some property matter, the party is challenging the validity of the marriage must allege that there was no custom governing the parties which permitted or sanctioned such a marriage between spindas.

It is material to allege the existence of a long established family or caste custom governing the parties to the marriage which permitted or sanctioned such a marriage. In a money suit, it is material to allege part-payment of the loan and also any other fact which gives a new lease of three years' time to the loan in order to save the suit ITom the bar of limitation. When a plaintiff bases his claim on some document, it is material to state the effect of such a document.

For example, 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 so and so which was duly registered. In a suit for specific performance of a contract it is material to allege that the plaintiff has always been willing and is willing to perform his part of the contract. Examples 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.

Similarly in a suit for recovery of money for the goods sold, it is not material to state that the goods belonged to the plaintiff or that the goods were sold to the defendant on the belief that he would honestly make the payment. In the case of damages general damages are presumed to be the natural or probable consequence of the defendant's act.

Such damages need not be proved. But special damages will not be presumed by law to be the consequence of the defendant's act but will depend on the special circumstances of the case. Therefore, it will have to be proved at the trial that the plaintiff suffered the loss and also that the conduct of the defendant resulted in the loss so suffered by the plaintiff.

In such cases the proof of special damages is essential to sustain an action. A person has no right of action in respect of a public nuisance unless he can show some special injury to himself which is over and above what is common to others.

Thus it is clear that whereas general damages may not be pleaded the special damages must be alleged, S tu d yn a m a.

They are material because they will have to be proved. All such facts must, therefore, be mentioned or state. With necessary particulars to show what special damage the plaintiff suffered. For example in a suit for defamation it will have to mentioned that services of the plaintiff were terminated as a result of a particular article which damaged the professional repetition of the plaintiff so much salary which he might have continued to get but for the publication of the defamatory article Exception to the General Rules: The general rule as stated above is that only the material facts should be stated.

The rule is, however, subject to the following exceptions: The performance of occurrence of any condition precedent need not be pleaded as its averments shall be implied in the pleading. But where a party chooses to contest the performance or occurrence of such condition, he is bound to set-up the plea distinctly in his pleading. However, there are conditions which the law requires that they must be satisfied.

For example sec. He must clearly allege that such a notice has been given. Similarly that the notice has been given under S. Neither party to a suit need allege any matter which the law presumes in his favour or as to the burden of proof of which lies on the other party, for ex. It is also not necessary to state that the defendant executed the bond 'of his own free will, and without any force or fraud because the burden of proving any fact invalidating the bond lies upon the defendant.

But the case is different when the defendant is a pardah nashin lady. In that case, the plaintiff must state that the bond was read out and explained to her and that she executed it of her own free will after having independent advice because in this case the burden of proving these facts lies on the plaintiff himself.

Regarding legal presumptions the exception applies to only such facts as the court "shall presume" and not to those facts which the court may presume", and therefore the facts falling under the latter class must be pleaded. Another exception to the general rule are facts which are merely introductory. Such facts only state the names of the parties, their relationships, their professions and such circumstances as are necessary to inform the court as to how the dispute has arisen.

Such facts are hardly necessary or material to the pleading, but they are generally tolerated and are set in the pleadings by both the parties in order to facilitate the court to take a stock of the situation of the parties. It is better if such perfactory remarks are cut down to the minimum. While drafting a plaint, a lawyer must distinguish between facts which are asserted and which have to be established through evidence whether documentary or oral, and facts which are, by themselves, in the nature of evidence.

At the initial stage only the former facts have to be narrated, and when the state of evidence comes, then the other facts will be represented as a part of evidence in order to establish the first set of facts. Thus much before the stage of evidence comes, the opposite party can Marshall himself and be ready to meet all the allegation set forth in the plaint.

In a suit for specific performance of a contract it is material to allege that the plaintiff has always been willing and is willing to perform his part of the contract. Examples 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.

Similarly in a suit for recovery of money for the goods sold, it is not material to state that the goods belonged to the plaintiff or that the goods were sold to the defendant on the belief that he would honestly make the payment. In the case of damages general damages are presumed to be the natural or probable consequence of the defendant's act. Such damages need not be proved. But special damages will not be presumed by law to be the consequence of the defendant's act but will depend on the special circumstances of the case.

Therefore, it will have to be proved at the trial that the plaintiff suffered the loss and also that the conduct of the defendant resulted in the loss so suffered by the plaintiff. In such cases the proof of special damages is essential to sustain an action. A person has no right of action in respect of a public nuisance unless he can show some special injury to himself which is over and above what is common to others. Thus it is clear that whereas general damages may not be pleaded the special damages must be alleged, S tu d yn a m a.

They are material because they will have to be proved. All such facts must, therefore, be mentioned or state. With necessary particulars to show what special damage the plaintiff suffered. For example in a suit for defamation it will have to mentioned that services of the plaintiff were terminated as a result of a particular article which damaged the professional repetition of the plaintiff so much salary which he might have continued to get but for the publication of the defamatory article Exception to the General Rules: The general rule as stated above is that only the material facts should be stated.

The rule is, however, subject to the following exceptions: The performance of occurrence of any condition precedent need not be pleaded as its averments shall be implied in the pleading. But where a party chooses to contest the performance or occurrence of such condition, he is bound to set-up the plea distinctly in his pleading.

However, there are conditions which the law requires that they must be satisfied. For example sec. He must clearly allege that such a notice has been given. Similarly that the notice has been given under S. Neither party to a suit need allege any matter which the law presumes in his favour or as to the burden of proof of which lies on the other party, for ex. It is also not necessary to state that the defendant executed the bond 'of his own free will, and without any force or fraud because the burden of proving any fact invalidating the bond lies upon the defendant.

But the case is different when the defendant is a pardah nashin lady. In that case, the plaintiff must state that the bond was read out and explained to her and that she executed it of her own free will after having independent advice because in this case the burden of proving these facts lies on the plaintiff himself.

Regarding legal presumptions the exception applies to only such facts as the court "shall presume" and not to those facts which the court may presume", and therefore the facts falling under the latter class must be pleaded.

Another exception to the general rule are facts which are merely introductory. Such facts only state the names of the parties, their relationships, their professions and such circumstances as are necessary to inform the court as to how the dispute has arisen. Such facts are hardly necessary or material to the pleading, but they are generally tolerated and are set in the pleadings by both the parties in order to facilitate the court to take a stock of the situation of the parties.

It is better if such perfactory remarks are cut down to the minimum. While drafting a plaint, a lawyer must distinguish between facts which are asserted and which have to be established through evidence whether documentary or oral, and facts which are, by themselves, in the nature of evidence.

At the initial stage only the former facts have to be narrated, and when the state of evidence comes, then the other facts will be represented as a part of evidence in order to establish the first set of facts. Thus much before the stage of evidence comes, the opposite party can Marshall himself and be ready to meet all the allegation set forth in the plaint. KAM KUS 10 The third fundamental rule of pleadings is that only facts must be stated and not the evidence there of there is a tendency among the litigants to mix up the bare facts with the facts which are in realty the evidence.

At the stage of pleading, the court and the opposite party should be supplied with the facts and such contentions on which the claim is founded; the plaintiff must keep the facts in evidence for a later stage of evidence. Now facts are classified under the following two categories: These are the facts on which a party relies.

Thus these facts are the evidence as to the existence of certain facts on which the party relies for his cause of action or defiance as the case may be. Facta probanda are not facts in issue, but they are relevant in that at the trial their proof will establish the existence of facts in issue.

No doubt in certain cases both the facts in issue and there facts in evidence are mixed up and are almost indistinguishable. In the pleading it is sufficient to allege that the marriage was celebrated in accordance with a particular custom. At the evidence stage, it will be sufficient to refer to the manual of customary law which records customs, The following rules have been enacted under the code of civil procedure and hereunder we elaborate them with the help of suitable illustrations: Order VI Rule 10 clearly says that wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.

Thus it is sufficient to allege that the defendant has cheated the plaintiff to the extent of Rs. It is not necessary, nor would it be in order, to plead how the defendant has cheated the plaintiff.

The Law Of Pleadings In India

The "how" part would be evidentiary and should not be pleaded. In a suit for malicious prosecution the plaintiff should only allege that the defendant was actuated by malice in prosecuting him. Order VI Rule 11 deals with notice. It says that wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such notice as a fact unless the form or the precise terms of such notice or the circumstances from which such notice is to be inferred, are material.

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In many cases notice has to be alleged as a material fact. In such cases, it is sufficient to allege notice as a fact. It is not necessary to state the entire from or precise words of the note, nor any other circumstances from which such a notice could be inferred sometimes, however, the form or the precise words of the notice are material under must be alleged.

Order VI Rule 12 states that wherever any contract or any rotation between any persons is to be implied from a series of letter or circumstances, it shall be sufficient to allege such contract S tu d yn a m a.

KAM KUS 11 or relation as a fact, and to refer generally to such letters conversations or circumstances without setting them out in detail. And if in such case the person pleading desires to rely in the alternative upon more contracts or relations than one as to be implied form such circumstances he may state the same in the alternative. The reason for this rule is that what is really material is the effect of the letter or conversation etc. Take the case of carrier's contract.

The moment the goods are accepted to be carried to a particular destination and the receipt is issued, there is an implied contract, and the receipt for the goods is an evidence of the contract.

In this case, it would be sufficient to plead the implied contract by making a reference to the receipt issued. The evidence of the receipt and other matters will come up later. If any contract is to be inferred from letters, the dates of the letters must be given. Order VI Rule 13 states that neither party need in any pleading allege any matter of fact which the law presumes in this favour or as to which the burden of proof lies up on the other side unless the same has first been specially denied.

And now we come the last fundamental rule of pleading. This rule is that the material rule is that the material facts should be stated in the pleading in a concise form but with precision and certainty the pleading shall be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figure order VI Rule 2.

What this rules means is that the pleading should be brief and to the point. At the same time, there should be precision and clarity. There should be no obscurity or vagueness or ambiguity of any sort otherwise the very perpose of pleading will be defeated. Another point to remember is that no doubt brevity and conciseness are the rule, but brevity should not be at the cost of precision or clarity.

Thus where brevity and precision cannot be achieved without clarity, prolixity in pleading would be justified. If the facts stated in the pleading are all material, then they all must be alleged not with standing the prolixity that might cause. In order to bring precision, conciseness and clarity, a lawyer should have a good command over the language and grammatical structure, and should know the exact meaning of the words.

Longer and complex sentence which is likely to become ambiguous should be avoided. The following points should be kept in mind while drafting a pleading: Anyway such pronouns when used should clearly denote the person or the thing to whom such pronouns refer.

It is better to use the word "plaintiff' or "defendant". Such words tend to take away the "certainty" and can cause ambiguity. If such particulars are quite lengthy, then they can be given in the attached schedule, and a clear reference made in the pleading.

For example, in an action for special damages, it may be stated in the body of the pleading that the details of special damages are given in the attached schedule. The division of the pleading into paragraphs should be so done as to endure that each paragraph deals with one fact. At the same time, the entire pleading should appears a running and willknit matter, must not look like isolated fact placed together. Inter-relations ships of paragraphs must seem to exist.

Such a tendency makes the pleadings not only lengthy, but also results in confusion. Pleading Must be Signed: Order VI Rule 14 makes it obligatory that the pleading shall be signed by the party and his pleader if any. Provided that where a party pleading is by reason of absence or for ad cause, unable to sign the pleading, it may be signed by any person duly athorized by him to same or to sue or defend on his behalf.

The main purpose of this rule is to prevent any possible denial by any party that he did not authorize the proceedings. Thus even if pleader produces the vakalat-nama duty authorizing him to fie t or defend the suit, the signature of the pleader alone would not do. The pleading must bear the signature or thumb impression or any other identification mark of the party concerned.

The only exception the party is unable to sign by reason of absence or any other good cause. Mere absence would sufficient; "absence" in this context means such as would not enable the party to be present.

Where the party is unable to sing the pleading as aforesaid, then a person duly authorised by such a 1st append his signature to the pleading.

Such authority to sue or defend must be produced before the court Verification of Pleading: Order VI Rule 15, states every pleading shall be verified at the foot by the by any of the parties pleading or by some other person proved to the satisfaction of the court to ainted with the facts of the case.

The person verifying shall specify, by reference to the numbered paragraphs of the pleading what he verifies of his own knowledge and what he verified upon on received and believed to be true.

The verification shall be signed by the person making it and te the date on which and the place at which it was signed. The aim of verification is only to fix: Aperson making a false verification is liable to be punished under the Indian Penal Code, as making a false statement is by itself an offence. Therefore the responsibility of verifications is very great and its significance and the consequences thereof must be realized. After the signature to the pleading some space may be left out and them verification should begin.

Name , son of Shri Father's name verify that the contents of paragraphs alone to S tu d yn a m a. Verified at ………. Place on this ………….. However, any defect in the verification can be cured by way of amendment, and when it is done, the plaint is deemed to have been presented on the same date as the original date of the initial pleading. This does not, and should not, minimize the importance of verification is defective, then not with standing the fact that the defect can be removed at ant stage of defect can cause considerable delay in the adjudication.

Therefore it is incumbent upon the parties to pay due care to the verification part in the same manner as they would normally to pay the main pleadings. In the code of civil procedure, it is laid down that particulars must be stated with respect to fraud, breach willful default or undue influence if pleaded. In other cases, when more particulars than are exemplified in the forms onAppendixAof CPC are necessary, they are to be stated, dates when necessary should always be given.

Pleas should be definitely mentioned so that they can be properly identified. Particulars of the property about which a claim is made should be clearly given. In a suit for money, particular of the account by which the amount claimed has been arrived at should be given. Fraud should pleaded with the greatest possible care and party pleading it must fully realise his responsibility for doing so. The proper way of pleading fraud is to set out all the facts and representations alleged to be frivolous in their full details and then to state that whether the representations were in oral or in writing.

If oral, the substance of such representations should be given alleging the data and place when and where they were made and the and the person by whom they were made it they were in writing, the document or documents containing them should be clearly identified in the particulars.

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The changes of fraud must be substantially proved as alleged and when one kind of fraud is changed, another kind of fraud cannot, upon failure of its proof be substituted for it, nor it is proper for an appellate court to entertain a case of fraud other than the one specifically alleged in the pleading.

Particulars to be contained in plaint provided under order VII, Rule 1. According to this rule the plaint shall contain the following particulars. Delhi" when the suit is to be filed before the district judge, The number, of the suit has to be noted in the following line titled "suit No- of ".

KAM KUS 14 f The facts showing that the court has jurisdiction; g The relief which the plaintiff claims; h Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount 50 allowed or relinquished, and i A statement of the value of the subject matter of the suit for the purpose of jurisdiction and of court- fees, so far as the case admits.

Plaint Structure Name of the court in which the suit is filed indicated at the top of the first page. Just below the name of the court, a space should left for the number of the suit. Therefore the names of the parties to the suit with all necessary particulars should be given.

For ex.: Resident of Resident of …………………. After the names of the parties the title of the suit should be given for ex. The body of the plant consists of two parts 1 substantive part 2 formal part. Those facts shall consist of such particulars as are necessary to state to obtain "the relied in the suit. The plaintiff seeking relief for district claims or causes of action founded upon separate and district grounds shall state all of them distinctly and separately as far as possible.

The plaintiff can claim more then one relief, in the suit. He can seek reliefs alternatively. If the plaintiff can seek more than one relief on the same cause of action he must seek all. If he omits to seek a relief in the suit his subsequent suit for such relief omitted would be barred under order 2.

Rule 2 CPC unless he has obtained leave in the earlier suit to file a fresh suit on the said relief omitted. Signature of the plaintiff along with the signature of the advocate. Affidavit should also be enclosed with plaint as provided under CPC order 6 Rule 15 4. All documents on which the plaintiff relies for his claim should be enclosed with a separate Iist of documents according to order 7 Rule 14 1 CPC Name, Description and place of Residence of parties in plaint and written statement when the plaintiff or defendant is: Resi of…………..

A company incorporated under the companies Act having its registered officiate…………. In liquidation through liquidator Mr. ABC having office at ………….

AB son of …………. Resident of …………. The Union of India, through secy. Ministry of education, New Delhi. State of Bihar through is Secretary, Patna. XYZ Ltd. Acooperative Society registered under the Delhi co- operative societiesAct, having its office at …………. Awritten statement is required to be filed by the defendant in answer to the claim made by the plaintiff in his plaintiff, which is delivered to the defendant along with the summons to attend at the first hearing of the suit.

The number of the suit is noted in the summons. Before drafting a written statement, one should verify the provisions set out for drafting a plaint under order VI of CPC. Examine whether the suit is barred under order II Rule 2 CPC, carefully study the material facts and the documents referred to in the plaint, check whether the documents are duly stamped, see that the material facts are specifically denied.

Verify also whether the claim is barred under principles of res judicata. In the written statement, the defendant should mention at the top the name of the judge or court, trying the suit. Next, the name of the parties first named are mentioned, as it is not necessary to mention the names, description and place of residence of all the parties in the title of the written statement.

The answering defendant thereupon replies to each Para of the plaint, unless there is some preliminary objection, the consideration of which is necessary in the first instance before the suit is tried on the merits of the case.

Objections relating to the maintainability of the suit, locus standi of the plaintiff to file the suit, the non-joinder or mis-joinder of parties as to the jurisdiction of the court or as to limitation may: Similarly, objections relating to court fees paid or valuation of the suit for process of jurisdiction are taken up in the first instance, The defendant may have additional facts to be stated which do not find and appropriate place in reply to the assertions made by the plaintiff in his plaint such additional facts or pleas maybe added in the written statement as additional pleas.

The filing of a written statement by any defendant, whether it is a Government or not a Government, whether it is an ordinary person or a statutory body a corporation or any body else, is covered by the same provision, namely, order VIII, Rule 1. It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth except damages.

Every allegation of fact in this plaint, if not denied specifically of by' necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted. The pleading 'not know' is not tantamount to the pleading 'not admitted'. So also the plea of no knowledge' S tu d yn a m a. If a defendant did not file his written statement it could not be said that he admitted all the facts pleaded by the plaintiff. The position in law, in cases where the defendant has not filed written statement is that even without filing a written statement; the defendant can take part in the hearing of the suit.

He may cross-examine the plaintiff's witness to demolish their version in examination in chief, without written statement. However, he cannot be permitted to crossexamine the witnesses on questions of fact with he himself has not pleaded nor can he be allowed to adduce evidence on question of facts which have not been pleaded by him by filing any written statement Chunni Lal Chawdhary V.

Bank of Baroda, Sri L. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party supplying was acting malafied or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. Adefendant can be allowed to amend the written statement to enable him to raise an additional ground of defence if the additional grounds not inconsistent with original case setup by him in the written statement and arises out of the case put forward by the plaintiff and does not change the nature of defendant's own sand.

If the amendment is likely to resolve the real controversy between the parties it should be allowed and it is not open for court to decide at that stage whether person seeking amendment will ultimately succeed in the plea or not.

Absence of Plea in Written Statement: Where a claim has never been made in the defence, no amount of evidence can be looked into upon a plea which was never put forward. III Interlocutory applications IA Interlocutory applications or interim application are filed during the pendency or course of litigation.

Such applications should be drafted with the same care as pleadings. Like pleading the lA's should be both precise as well as brief and devoid of irrelevant matters. Drafting of Interlocutory Application: The grounds on which application is moved should to the extent possible be stated in the words of the law under which the application is fitted.

It is not advisable to employ a language different from the law under which the application is made. Like a plaint every application should have a heading and a title. The name of the Court should be given at the top and thereafter should follow the name of the applicant and the opposite party. When the. The body of the application should be either in the form of petition: It is not absolutely necessary that the law under which the application is filed should be given. Like pleadings facts in the application should be stated in brief and concise language.

The application should be divided into paragraphs and one paragraph as far as possible should narrate one allegation except where two or more allegations are so connected with each other that it is better to give them in one paragraph.

With some application affidavits are filed and if in such cases the facts are too long things need not be narrated in the application. They should only be narrated in the affidavit and in such cases the application should be worded in some such form: The application should end with a prayer. The payer should be in the following form: Defendant, therefore prays": After prayer, should follow the signature of the applicant where law requires the verification, the application should also be verified.

However, in practice, the words 'petitions' and 'suits' are generally used to mean formal applications for seeking legal remedy. Suit of a civil nature is ordinarily tried in civil court. Every person has a right to bring a suit of a civil nature and civil court has jurisdiction to try an the suits 01a civil nature. Due to increasing litigation and delays in civil suits, parliament and state legislative created special courts and Tribunals with special enactments.

The reason behind this exercise is for speedy disposal of cases of various types. Cases of ejectment in respect of urban buildings between the land lord and tenant are now dealt with by special courts created under various state legislations. Railway accidents claims are decided by railway claim Tribunals, claims by Industrial woken for payment of wages are entrusted to prescribed authorities.

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