Pleadings
Chapter Fifteen
Syllabus topic 2.3, "Pleadings, plaint and written statement (Order VI to Order VIII)"
Pages 84 to 87 of 365
In one line
A pleading is the written statement of a party's case, and Order VI lays down one governing rule for all of them: state the material facts, and nothing else.
Why the Code regulates this so tightly
A trial can only be fair if each side knows in advance what case it has to meet. Surprise is the enemy: a defendant who first learns the real allegation in the witness box cannot answer it, and a court cannot frame issues on a case that has not been stated.
So pleadings do three jobs at once. They define the dispute, so the court knows what to try. They give notice, so neither side is ambushed. And they fix the boundaries, so that at the end nobody can be given relief on a case never pleaded.
That last point is the one to carry into every other chapter of this Module. Issues are framed from the pleadings, evidence is led on the issues, and the judgment answers the issues. If a fact never entered the pleadings, it never enters the judgment.
What counts as a pleading
Rule 1: "Pleading" shall mean plaint or written statement.
That is the whole definition, and it is narrower than students expect. An affidavit is not a pleading. An application is not a pleading. A written argument is not a pleading. Only the plaint and the written statement, together with anything the Code treats as one, such as a written statement in answer to a counterclaim.
The governing rule: material facts, not evidence
Rule 2(1): every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party relies for his claim or defence, but not the evidence by which they are to be proved.
Take the three commands separately, because each is a separate marking point.
Material facts, not law. The facts that constitute the cause of action or the defence. A party pleads what happened, not which section entitles him to relief. Getting the legal label wrong does not sink a properly pleaded case.
Facts, not evidence. This is the distinction the rule exists for, and it is the one most often asked. Plead that the goods delivered were defective; do not plead that the storekeeper will say so and that there is a photograph. Older writers put it as facta probanda against facta probantia: the facts to be proved, not the facts by which they are proved.
Concise form, and "contain only". A pleading that buries the case in narrative fails the rule as surely as one that omits the case.
The formal requirements
Rule 2(2): every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as convenient, in a separate paragraph.
Pleadings
Rule 2(3): dates, sums and numbers shall be expressed in figures as well as in words.
These look trivial and they are not. Numbered paragraphs are what make it possible for a written statement to answer a plaint line by line, and for a court to frame an issue by reference. Figures and words together is an anti-tampering rule: a figure alone can be altered by a stroke of a pen.
Rule 3: the forms in Appendix A, where applicable, and where not applicable forms of the like character, shall be used for all pleadings.
Rule 3A, inserted for commercial disputes, provides that where forms of pleadings have been prescribed under High Court Rules or Practice Directions for commercial disputes, pleadings shall be in those forms.
Rule 4: when particulars must be given
Rule 4 provides that in all cases in which the party pleading relies on misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases where particulars are necessary beyond those exemplified in the forms, particulars, with dates and items if necessary, shall be stated in the pleading.
Learn that list of five. The common thread is that each is an allegation against a person's honesty or good faith, and it is unjust to make such a charge in general terms and then look for the details later. "The defendant acted fraudulently" pleads nothing. The rule requires the plaintiff to say what was said, by whom, when, and what was thereby obtained.
Rule 17: amendment of pleadings
Rule 17 provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings, in such manner and on such terms as may be just, and that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
The proviso, and this is the part that carries marks: 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.
So the rule has two halves and they pull in opposite directions. The main part is generous, because the object of a trial is to decide the real dispute and not to punish a drafting error. The proviso is strict, because once the trial has begun an amendment can destroy the other side's preparation. Due diligence is the test, and the burden is on the party seeking to amend.
Pleadings
Rule 18 completes it: a party who obtains leave to amend and does not amend within the time fixed, or within fourteen days if no time was fixed, shall not be permitted to amend afterwards unless the Court extends the time.
A worked example
Yash sues Zoya for the price of machinery, pleading that he delivered it in April and she has not paid.
Zoya's answer is that the machinery never worked. That must be pleaded as a fact in her written statement. If she leads evidence about it without pleading it, the court can refuse to look at it, because no issue arises on an unpleaded fact.
Yash's draft says: "The defendant is a dishonest person who has cheated the plaintiff by fraud." That fails Rule 4. Fraud must be particularised: what representation was made, by whom, when, and what was obtained by it. A general charge of fraud pleads nothing and can be struck out.
Yash's draft also says: "The plaintiff will rely on the delivery challan dated 12 April and on the testimony of his storekeeper." That fails Rule 2(1). The delivery is a material fact and belongs in the pleading; the challan and the storekeeper are the evidence of it and do not.
Yash writes the price as "Rs. 4,50,000". Rule 2(3) requires it in figures and in words.
Half way through the trial Yash discovers a second agreement varying the price. He applies to amend. The proviso to Rule 17 bites: the trial has commenced, so he must satisfy the court that despite due diligence he could not have raised it earlier. If the document was in his own file all along, he will fail.
The court allows the amendment but Yash does nothing for a month. Rule 18: no time having been fixed, he had fourteen days, and he may not amend now unless the court extends the time.
What it does not mean
A pleading is not an affidavit or an application. Rule 1 confines the word to the plaint and the written statement.
"Material facts, not evidence" does not mean bare assertion. Where Rule 4 applies, particulars with dates and items are part of the material facts.
Pleading the wrong section is not fatal. Facts are pleaded, law is argued.
Amendment is not available for the asking after trial begins. The proviso to Rule 17 requires due diligence to be shown.
Leave to amend does not last indefinitely. Rule 18 gives fourteen days if the order fixes no time.
Quick revision
Order VI Rule 1: a pleading means a plaint or a written statement, and nothing else.
Rule 2(1): material facts, concisely, and only those; not the evidence by which they are proved. Facta probanda, not facta probantia. Rule 2(2): numbered paragraphs, one allegation each so far as convenient. Rule 2(3): dates, sums and numbers in figures and in words.
Pleadings
Rule 3: the forms in Appendix A. Rule 3A: prescribed forms in commercial disputes.
Rule 4: particulars, with dates and items, must be given for misrepresentation, fraud, breach of trust, wilful default and undue influence, and wherever else particulars are necessary.
Rule 17: amendment at any stage, as necessary to determine the real questions in controversy; but not after the trial has commenced unless, despite due diligence, the party could not have raised the matter earlier.
Rule 18: amend within the time fixed, or fourteen days if none is fixed.
Test yourself
1. What is a pleading? Under Order VI Rule 1, a pleading means a plaint or a written statement.
2. State the rule in Order VI Rule 2 in two sentences. Every pleading shall contain, and contain only, a statement in concise form of the material facts on which the party relies for his claim or defence, but not the evidence by which those facts are to be proved. Pleadings must be divided into consecutively numbered paragraphs, and dates, sums and numbers must be expressed in figures as well as in words.
3. Give the difference between material facts and evidence, with an example. Material facts are the facts a party must establish to succeed, and evidence is the means by which they are established. That goods were delivered on a given date and were defective is a material fact and must be pleaded; the delivery challan and the storekeeper who will speak to it are evidence and must not be.
4. In which cases must particulars be pleaded? Under Order VI Rule 4, in all cases where the party relies on misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases where particulars are necessary beyond those exemplified in the forms. Particulars must include dates and items where necessary.
5. Can pleadings be amended after the trial has begun? Only exceptionally. Order VI Rule 17 allows amendment at any stage as may be necessary to determine the real questions in controversy, but its proviso bars an application made after the commencement of trial unless the Court concludes that in spite of due diligence the party could not have raised the matter before trial began.
6. A party obtains leave to amend and the order fixes no time. How long has he? Fourteen days from the date of the order, under Order VI Rule 18, after which he may not amend unless the Court extends the time.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.