DR.

RAM MAHOHAR LOHIYA NATIONAL LAW

UNIVERSITY

2022-2023

DPC PROJECT

FINAL DRAFT

AUTHORED BY: SIDDHARTHA RAO (2001011379)

SEMESTER: VI
B.A.L.L.B (HONS.)
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,
LUCKNOW.

SUBMITTED TO: DR. SHAKUNTALA SANGAM

Assistant Professor (Law),
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,
LUCKNOW

Table of Contents
Preface ........................................................................................................... 3

Acknowledgement ........................................................................................ 4

Introduction ................................................................................................... 5

History of pleading ........................................................................................ 7

Fundamental rules of pleading ...................................................................... 9

Functions & objects of pleading ……………………………….., .............. 15

Amendments to pleading .............................................................................. 17

Conclusion .................................................................................................... 18

PREFACE
The main objective of any law student (B.A. LLB.) is to get as much of practical knowledge as
much as possible in pursuing its degree. For developing practical knowledge in a student, he
has to make projects and it is lifetime experience for him. I am thankful of having a project
because practical knowledge is as much important as theoretical knowledge.

Through the development of the project, we had a great experience of various strategies in
developing a project. This project helps me in gaining knowledge and it is the stepping stone
in my career.

I am pleased to present this project to my teacher who gives us proper guidance in selecting
and making of the project.

ACKNOWLEDGEMENT
I express my gratitude and deep regards to my teacher, Dr. Shakuntala Sangam, for
teaching me the basic things we need to keep in mind while doing a research work.

I also take this opportunity to express a deep sense of gratitude to my seniors in the college
for their cordial support, valuable information and guidance, which helped me in completing
this task through various stages.

Lastly, I thank my family, friends and colleagues for their constant encouragement without
which this assignment would not have been possible.

Thanking You,

Siddharth.

INTRODUCTION
 Pleading, in law, written presentation by a litigant in a lawsuit setting forth the facts upon
which he claims legal relief or challenges the claims of his opponent. A pleading includes
claims and counterclaims but not theevidence by which the litigant intends to prove his case.

Pleadings are the statement of facts in writing drawn up and filed in a Court by each party to
am case stating therein what his contention shall be at the trial and giving all such details as
his opponent will need to know inorder to prepare his case in answer. In India there are only
two pleading in a suit as defined under Order 6, rule1 of the Code of Civil Procedure, it says
that pleading means “Plaint or Written Statement”. This definition is not very clear in itself.
The plaint and written statement are defined in the following clauses:

A. Plaint: A statement of claims, called the “plaint” in which the plaintiff sets out his cause
of action with all necessary particulars.

B. Written Statement: A statement of defense called the “written statement” which the
defendant deals withevery material fact alleged by the Plaintiff in the plaint and also sets
any
new facts which tells in his favor, adding such objection as he wishes to take to the claim.
Beside the plaint and the written statement, order pleading that may be filed, may be classed
under two heads:

(i) subsequent pleadings,

(ii) additional pleadings.
(i) Subsequent Pleadings: The only subsequent pleading which is filed as a matter
of right, without the leave of the court, is a written statement of a plaintiffby way of
defense to a plea set-off set up by a defendant in the written statement of his defenses.

No other pleading subsequent to the written statement of a defendant other than that by way of
defense to a plea of set off can be presented except with the leave of the court and upon such
terms as the court may thinkproper. But the Court may at any time require a written statement
or an additional written statement from anyof the parties and fix a time for presenting the
same.
Any ground of defense which has arisen after the institution of the suit or the presentation of
the writtenstatement, may be, raised by the plaintiff or the defendant as the case may be, in his
written statement.

This is also a subsequent pleading. The subsequent pleading, i.e., this written statement in
some states is alsotermed as “replication”. This term was formerly used in England where
plaintiff's written statement is now called “reply”.

(ii) Additional Pleading: Although no pleading subsequent to the written statement

of a defendant other than by way of defense to a plea of set-off can be presented without
the leave of the court, yet the court may at any time require a written statement or
additional written statement from any of the parties, i.e., plaintiff or defendant or both .
The additional pleadings are not subsequent pleadings in the true sense of the term. They
are pleading by way of further and better statement of the nature of the claim or defense or
further and better particular of any matter or state in the pleadings. These pleading may be
ordered under order 6, rule 5 of the Code of Civil Procedure.
 History of Pleadings:

The method of arriving at an issue by alternate allegations has been used in the civilized
countries fromearliest times. The art of pleadings apparently is as ancient as any portion of
our procedural law.

In ancient India it certainly existed but not in the present form. The art of pleading is also
traceable in

substantially the same in form in England in the days of Henry II. The “issue” is found in the
year, i.e., in thefirst year of the reign of Edward II. It shows that the art of arriving at an issue
was not only practiced duringthe reign of Edward II but had been practiced even before for an
issue had not been only the constant effect, but the professed aim and the object of pleading.

At first the pleading were oral. The parties actually appeared in person in open Court and oral
altercation tookplace in the presence of the judges. These oral pleading were conducted either
by the party himself or by a person who was an eloquent orator and well versed in Dharma
Sastras and Koran whom people generally called Pandit and Maulvi in ancient and medieval
India respectively. In English countries such person was called narrator and advocates before
the adoption of this present lawyers‟ institution. The Pandits Maulvis and narrators helped
Kings and Judges in the administration of justice in those days. The duty of the King and the
judge was to handling of moderate‟ the oral contentions conducted before him. His aim was
to arrive at some specific point or matter affirmed on the one side, and denied on the other,
which they both agreed was the
question requiring decision; on resulting this the parties were said to be „at issue‟ and the
pleading were over.The parties, then, were ready to go before a jury if it were an issue of
England. In those days the judges were very strict and they never allowed more than one issue
in respect of each cause of action.

When a defendant more than one defense to the plaintiffs claim he had to elect one out of the
defenses.

Since the reign of Queen Victoria the parties were allowed to raise more than a single issue,
either of law or fact. During Viva voce altercation an officer of the court was busy writing on
a parchment roll an official report of the allegation of the parties along with the act of Court
which together was called record. As the suit proceeded similar entries were made
from time to time and on the completion of the proceedings, the roll was preserved as
perpetual judicial record. When each pleader in turn started borrowing parchment roll and
enteredhis statement thereon himself, the oral pleading fell into disuse on thus obvious defect.
Later, with the development of print machinery, paper etc. the method of drawing up the
pleading on the plain paper and their interchange between parties started and this happened
probably in the reign of Edward IV the Judicature Act 1873 in England brought in many
reforms in the realms of pleading like which with frequent changes are still in force. The
modern Indian law of pleading like any other law is based on English system and the whole
law civil pleading is governed by the Code of Civil Procedure which lawyer has to master
over for the thorough knowledge of practice and procedure required in a civil litigation.
 Fundamental Rules of our Pleading which are as follows:

These are set out in Order 6 of the Code of Civil Procedure

1. Every pleading must state facts and not law.

2. It must state all material facts and material facts only.

3. It must state only the facts on which the party's pleading relies and not the evidence by

which they are to beproved.

4. It must state such facts concisely, but with precision and certainty.

(1) Facts only: The first fundamental rule pleading is that neither provisions of law nor
conclusion of mixed law and facts, should be alleged in a pleading. The pleading should be
confined to facts only and it is for the judge to draw such interference from those facts as are
permissible under the law of which he is bound to takejudicial notice.

Example: It will not be sufficient to state that „Abu Sheikh made a gift of his property‟ to the
plaintiff. The plaintiff should allege here the gift was made, how it was accepted and how
possession was delivered; becausethese are the facts which constitute a valid gift under
Muhammad Law. To allege that Abu made a gift‟ will be a conclusion of law from the facts
which are not to be state directly in the pleading. Secondly, in a suit for damages for
negligence, it is not enough for the plaintiff to state that the defendant has been guilty of
negligence‟ without showing how and in what respect he was negligence and how he became
bound to usedue care to prevent an injury to other.

Thirdly, when then defendant has to reply to the claim of the plaintiff in a money suit, it is not
sufficient for him to state that „the defendant does not owe to the plaintiff‟. But he must allege
such fact which go to provethat in the circumstances the defendant does not owe to the
plaintiff. The defendant should state that he neverborrowed from the plaintiff, or good were
never ordered, or were never delivered, or that they were not equalto the sample. It is not
sufficient in a suit upon a contract for the defendant to, merely, plead the „the contract is
rescinded‟, The defendant must plead in what manner and by what means he contends that is
was rescinded.The fundamental rule of pleading is that a pleading shall affirmatively contain
only a material fact on which the party relies and it shall not contain facts which are

only evidence by which such material facts are to be proved. The reason for not mentioning
the law in the pleading is that it is the duty of the court to find out and examine all plea of
Law that may be applicable to the facts of the case. However, the parties can make their
submission about law any time. For example, the non- maintainability of the suit which is a
point of law, can be urged although no specific plea has been raised in the pleading. The rule
that every pleading must state facts and not law or an interference of law has got following
exceptions:

(a) Foreign Laws: The court do not take any judicial notice of foreign laws and hence
they must be pleaded as facts. The status of the foreign country intended to be relied upon
should be set-forth as substantially as anyother facts.

(b) Mixed question of laws and facts: Where a questions is one of mixed law and
fact, it is permissible andproper to plead both the facts and the legal conclusion. For
instance, the defendant may say that the suit is barred by the law of limitation, or he may
say he is entitled to set off after narrating the facts on which he bases his conclusions.

(c) Condition precedent: The Code of Civil Procedure provides that any condition
precedent the performance of which is intended to be contested shall be distinctly specified
in the pleading of the plaintiff ordefendant (Order 6 r.6 of C.P.C.), as for instance, the
legality of the notice under section 80, C.P.C.
(d) Custom and Usage of Trades: Custom and usage of any trade and business shall
be pleaded like any otherfacts, if a party wants to rely on them. But a custom repeatedly
brought before Court and recognized by them regularly is deemed to have acquired the
force of law and need not be pleaded. For example, an occupancy tenant is entitled by local
custom and usage to cut trees growing upon his holding it is not necessary for the
occupancy tenant to plead this custom, if he wishes to rely on this right to cut the trees.
Similarly, a party who wishes to rely on the usage of a particular trade and business and if it
is at variance with any provision of the Contract Act, he must not plead the usage of such
trade and business with
its detailed incident. If it is not pleaded, no evidence to prove it shall be admitted.
(2) Material facts: The second fundamental rule of pleading is that every pleading shall contain
only a statement of material facts in which the party pleading relies for his claim or defense.
This rule has been enunciated in Order 6, rule2 of the Code of Civil Procedure. The rule that
the material facts should be not a technically and that an omission to observe it may

increase the difficulty in the Courts task of ascertaining therights of the parties. Further, every
pleading must state facts which are material at the present stage of the suit.Now, the question
arises what is material fact? The fact which is essential to the Plaintiff's cause of action or to
the defendants defense which each prove or fail is material fact.

Now, the question that what facts are material, is not very easy to answer. However, it can be
said that fact is material for the pleading of a party which he is bound to prove at the trial
unless admitted by the other party before he can succeed in his claim or defense. If one is in
reasonable doubt about a particular fact as a materialfact it is better for him to plead that fact
rather than omit it because unless a fact is pleaded he shall not be allowed to prove it at the
hearing of the suit.

A plea of fraud and misrepresentation in a suit must set forth full particulars of fraud and
misrepresentation, because these particulars constitute material facts unless raised by the
plaintiff or the defendant in his pleading, he will not be allowed to prove at the trial. Of
course, a material fact can be inserted in the pleadingby amendment which is the right of the
plaintiff and defendant; but when a pleading is amended one is likelyto be saddled with the
cost of other side. When suit is brought under a particular statute, all facts which are necessary
to bring the suit under the statue must be alleged. When a rule of law applicable to a case has
an exception to a case has an exception to it, all facts are material which tend to take the case
out of the rule or out of exception. For example:

(1) If a childless Mohammedan widow claims one-fourth share in the property of her
husbandas allowed by Shia law, she must allege that her husband was a Shia.

(2) Where Plaintiff claims right of pre-emption u/s 15(2)(b) of Punjab pre-emption Act, he
must plead thenecessary facts in respect of his claim.

(3) Where a plaintiff claims an alternative relief, he must plead facts entitling him, for such
relief.
(4) Where the question of age or time affects the right of the parties, the facts should be
specifically pleaded.

(5) Every plea of facts must be specifically pleaded, and proved. Court cannot allow party
 to the suit to lead evidence inconsistent whit his plea in spite of object of objection by the
other party is allowed to lead evidencein rebuttal does not cure the legal defect.

(6) Where a plaintiff sues on the basis of a title he must state the nature of the deed from
which he has derivedtitle.

(7) The plea that a woman claiming maintenance has lost her right due to continuous
desertion or living inadultery should be specifically raised.

(8) Where the plea is based on custom, it must be stated in the precise form what the custom
is. For instance, ifa childless Mohammedan widow claims one-fourth share in the
property of her husband as allowed by Shia Law, she must allege that her husband was a
Shia. The following are exception to this fundamental rule of pleading.

(3) Facts, Not Evidence :The third fundamental rule of pleading has been laid down by
Order 6, rule 2 of theCode of Civil Procedure. It says that every pleading must contain a
statement of material facts but not the evidence by which they are to be proved. The
material facts on which a party relies are called Facta Prabantia,
i.e. the facts to be proved , and they should be stated in the pleadings.

The evidence or facts by which Facta Probantia are to be proved are called Facts Probantia,
and they are not tobe stated in the pleadings. Facta Probantia are not the facts in issue but
only relevant facts which will be proved at the trial in order to established facts in issue. For
instance, in a suit of damages for malicious prosecution the plaintiff should only allege in the
plaint that the defendant was actuated by malice in prosecuting him. He must not allege that
he had previously given evidence against the defendant and the defendant had vowed to take
revenge. The plaintiff is by all means entitled to tender evidence to prove this fact. Secondly,
in a policy of life insurance, the condition that the policy shall be void, if the holder dies of
hisown hand, in the defense it is not necessary to state that the assured brought the pistol a
few days before his death and made all preparation to kill himself. It is sufficient to state in
defense that the assured died of his own hand. In some cases where the facts in issue and
relevant facts are so mixed up that it is very difficult to separate them and if it is so the
relevant facts may be stated. For example, where custom is based on village administration
paper, which is the basis of claim and its sole proof. In such cases the record has to be
pleaded.In the Punjab Rewaje Aam (customs)are contained by the Manual of
 Customary Law which records customs, are only evidence and it is neither necessary to refer
to them in plaints.

(4) Concise Form with Precision and Certainty: The material facts must be stated in a
summary form, succinctly and in a strict chronological order. All unnecessary allegations
and their details should be omittedin order to attain brevity in pleadings.

Pleading is not a place for fine writing but only assertion of hard facts. It is desirable to go
straight to the pointand state fact, boldly, clearly and concisely and to avoid all paraphrasing
and all circumlocutions. As far as possible an active voice should be preferred to passive in
pleading. The same person or thing should be calledby the same name throughout the
pleading. The pleading shall be divided into paragraph numbered consecutively. Dates sums
and numbers shall be expressed in figures, even though the pleading should be concise, it
should never be obscure. It should be both concise , as well as precise. The parties cannot
change the case and get the relief. As already discussed the unnecessary facts should be
omitted from the pleadings.
Let us summarize them.:
1. Matters of law.
2. Matters of evidence.
3. Matters not alleged in the opponents pleading.
4. matters presumed by law.
5. the performance of condition precedent.
6. the words of documents.
7. Matters affecting cost only.
8. matters not material to the case. 9. The defendant need not plead to the prayer of the
plaintiff

10. The defendant need not plead to the damages claimed or their amount. The above
details should not bepleaded in a pleading. A good pleader should bear in mind the
following points in relation to a pleading:

1. Describe the names and places accurately and spell them correctly and adopt the same
spelling throughout.
 2. One should always avoid the use of pronoun as „He,She,This or That The plaintiff or the
defendant should not be addressed by their names at some place and at some place by
the

word Plaintiff and defendant, call them throughout your pleading by the expression the
plaintiff and the defendant as the case may be. Where one has to distinguish between two or
more plaintiff or defendant, callin your pleading, the plaintiff Ramashankar or the defendant-
Hariharan as the case may be.

3. A lawyers should allege all facts boldly and plainly. He should use the language of the
document or the actitself; and he should not invent his own language however correct
it may be, e.g. of a policy becomes void in case, the assured shall die of his own hand.
Now, in this case while drafting the pleading instead “ the assuredkilled himself” or he
committed
suicide,” plead that the assured died of his own hand.

4. A lawyer should allege all facts boldly and plainly. He should avoid ifs and buts. As far as
possible complex sentences should also be avoided. Facts should not be repeated.
Pleading should be divided into separate paragraphs and as far as possible only one fact
should be
contained by one paragraph embodying allnecessary particulars in the pleading.

5. Every pleading shall be signed by the party and his advocate and, if the party is unable
to
sign thepleading it may be signed by this agent.
 The Functions & objects of pleading:

The objective of pleadings is to assist the Court and the parties to the dispute in its
adjudication. Its function isof multi-dimension, and is in various ways. Stable j., Pinston v.
Lloyds Bank Ltd., (1941) has expressed the function of pleading in the following words:

“The function of a pleading is not simply for the benefit of the parties but also and perhaps
primarily for the assistance of a Court by defining with precision the area beyond which
without the leave of the court, and consequential amendment of pleading, conflict must not be
allow to extend”. “The while object of pleading is to give a fair notice to each party of what
the opponents case is to ascertain with precision, the points on whichthe parties agree and
those on which the they differ and thus to bring the parties to is also a definite issue. The
purpose of pleading is also eradicate irrelevancy.

The parties, thus themselves know what are the matters left in dispute and what facts whey
have to prove at the trial. They are saved from the expense and trouble of calling evidence
which may prove unnecessary in view of the admission of the opposite party. And further, by
knowing before hand, what point the opposite party raise at the trial they are prepared to meet
them and are not taken by surprise as they would have been, had three been no rules pleadings
to compel the parties to lay bare their cases before the opposite party prior tothe
commencement of the actual trial.

Truly speaking the object of the pleading is to narrow down the controversy of the parties to
definite issue. The sole object of pleadings is that each side may be fully active to the question
that are about to be argued inorder that they may have an opportunity of bringing forward
such evidence as may be appropriate to the issues. The Court has no power to disregard the
pleading and reach conclusions that they think are just and proper.

Sometime back, Honorable Mr. Justice Lord William of the Calcutta High Court in the case
of, strongly emphasized the need of careful study of the art of pleading and condemned the
obscure pleading which were shocking and were filed even in Calcutta High Court. It is,
therefore, the duty of every advocate to take extreme care in drafting of his pleadings. There is
no force in saying that the pleading in this country are not tobe strictly construed. Has this
been the object of the law of pleading the framers of the Code of Civil Procedure would not
have laid down the rules of civil pleadings. A select committee of eminent lawyers having
knowledge of Indian conditions was appointed to frame the present Code of Civil Procedure
which hasbeen amended and redrafted in 1976. Order 6, 7 and 8 of the Code of Civil Procedure
are very important from the point of view of drafting of pleading in the High Court.
Appendix A to the Code of Civil Procedure contains some model form of pleadings which are
useful. Unfortunately, these forms are seldom consulted by the mofussil pleader the reason
being that the pleadings arebeing drafted by their clerks who are not trained in this direction
and do not have legal knowledge. The pleading should always be drawn up and conducted in
such manner so as to evolve some clear and definite issues i.e., some definite propositions of
law and/or fact, asserted by one party and denied by the other. But both the parties must agree
on the points sought to be adjudicated upon in action.

When this has been fairy and properly ascertained then following advantages flow from
pleadings:

1. It is a benefit to the parties to know exactly what are the matters left in dispute. They may
discover that they are fighting about nothing at all e.g. when a plaintiff in an action of libel
finds that the defendant does notassert that the words are true, he is often willing to accept
an apology and costs, and so put an end to the action.

2. It is also a boon to the parties to know precisely what facts they must prove at the trial;
otherwise, they maygo to great trouble and expense in procuring evidence of facts which
their opponent does not dispute. On the other hand, if they assume that their opponent will
not raise such and such a point, they may be taken suddenlyby surprise at the trial.

3. Moreover, it is necessary to ascertain the nature of the controversy in order to determine

the mostappropriate mode of trial. It may turn out to be a pure point of law, which should
be decided by judge.
 Amendments of Pleading:

The amendment is the modification & alteration of the pleadings, provisions regarding this are
intended for promoting the ends of justice and not for defeating them, the 17 & 18 rules of
Civil procedure code deals withsuch provisions and the failure to amend after order
respectively.

The first one provides that "The court may at any stage of the proceedings allow either party to
modify or amend his pleadings in such manner and on such terms as may be just & all such
amendments shall be madeas may be necessary for the purpose of determining the parties
within( this provision was added by the 2002 amendment) which also blocks power if the court
to allow amendment in pleadings by enacting that no application for amendment should be
allowed after trial has started, unless court comes to the conclusion thatin spite of due diligence
the party could not have raised the matter before the commencement of trial.

The Amendments when refused:

Amendment of pleadings can be refused in many circumstances, those situations are: 1:

When the amendment which is presented is not imperative.

2: When it causes an injury to the other party which cannot be compensated3:When the
proposed amendment changes the whole nature of the case.

4: When the application for amendment is not made in good faith.

5: When there has been too much delay in filing the amendment application.
 Conclusion

It would not be an overstatement to say that pleadings are the backbone of the legal
profession, it is the foundation stone on which the case of any party stands since the case
must have to be set out to be in pleadings. Pleadings not only define the issues between the
parties for the final decision of the court in the trial, they manifest & exert their
importance throughout the whole process of the litigation and they provide a proper guide
for the proper mode of trial as they demonstrate upon which party the burden of the proof
lies on to, and who has the right to open the case, they also determine the range of
admissible evidence which the parties should adduce at the trial and they also lay down
the limit on the relief that can be granted by the court.

The main aspects to be considered before any amendments within are that firstly that if it is
necessary for thedetermination the question which lies in front of the court and secondly if
it does not do any injustice to the other parties.