DRAFTING OF PLEADINGS AND CONVINCING

GENERAL PRINCIPLES OF DRAFTING AND RELEVANT RULES

The art of drafting the pleadings has not yet fully developed in spite of the increase in the civil litigation.
As amatter of fact, the art of pleading should be the foundation course and great emphasis should be
laid on thispaper. Because of this absence of rigorous training, the young lawyers often indulge in
prolixity rather thanclarity and conciseness. Many dead-sure-win cases drag on for years in the courts
only because of faultydrafting. Irrelevant matters, unnecessary details are often included and the facts
placed before the lawyerby his client are not marshaled. The result is that the martial facts are often
mixed up with inessential matter. According to Lord Halsbury - "Where system of pleading may exist, the
sole object of it is that each side maybe fully alive to the questions that are about to be argued in order
that they have an opportunity of bringingforward such evidence as may be appropriate to the
issue"Pleading is an art, of course, and art which requires not only technical and linguistic skill but also
an expertknowledge of the law on the given point brought before a lawyer. Even experienced lawyers
and attorneysare not infallible and sometimes they also make mistakes. However, in the matter of
pleadings longerexperience and a great linguistic acumen are both essential ingredients. What
ultimately matters is howclearly and systematically have the facts been presented before the court of
law.It is a matter of common knowledge that when a person comes to seek the assistance of the court of
law inany matter, he has to prepare a statement of his claims, and the facts on which such claims are
founded.Such statements fully drawn up, setting out all contentions, are called "pleadings". Thus
pleadings are thefoundation of all sorts of litigation; no judicial system in the world can do justice in any
matter unless anduntil the court of justice is fully aware as to the claims and contentions of the plaintiff
and of the counterclaims and defences of the defendant.In the ancient times when the king was the
fountainhead of all justice, a petitioner used to appear before theking in person and place all facts
pertaining to his case before his majesty. After such oral hearing, the kingused to summon the other
party and thereafter listen to the defence statements put forward by the personso summoned. There
used to be same sort of cross examination or cross questioning of the parties by theking himself.
Thereafter, the decision was announced. There was hardly any system of written statements;all the
same "pleadings" did exist, although they were oral. The king and his courtiers kept on what may
becalled a mental record of the proceedings. Perhaps only r. few serious and otherwise significant cases,
thedecisions were recorded.With the passage of time, judicial system underwent a change. The
administration at justice was separatedfrom the executive and assigned to the court of law. Complexity
of resulted in enormous litigation, and oralhearing of the ancient times became almost impossible.
Scribes used to keep records of all theproceedings Gradually this procedure was also abandoned and the
litigants were allowed to bring theirclaims and contetions duly drawn up to fie them before the Honb6e
courts. When this change exactlyhappened, it is difficult to say. Experience was a better teacher; and the
changes in court procedure tookplace not only in the light of the past experience but also in the face of
expediency. Written proceedings.
2. Strictly for Internal Circulation - KCL made the task of the courts of law easier and less complicated
than the earlier oral proceedings. By the turnof 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. Videorder VI Rule 1 "pleading". Shall mean plaint or written statement.
Mogha has elaborated this definitionwhen 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 inorder to prepare his case in answer".The document stating the
cause of action and other necessary details and particulars in support of the claimof the plaintiff is called
the "plaint". The defence statement containing all material facts and other detailsfiled by the defendant
is called the "written statement". The written statement is filed by the defendant as ananswer to the
contentions of the plaintiff and it contains all materials and other objections which thedefendant 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
pleadingcan entail serious cones quinces, because at the evidence and argument stages, parties are not
permittedto depart from the points and issues raised in the pleadings, nor can a party be allowed to
raisesubsequently, except by way of amendment, any new ground of claim or any allegation of fact
inconsistentwith the previous pleadings of the party pleading the same. In some cases the court may
allow amendmentof the plaint or the written statement on the application of a party. This can be done
under order VI Rule 17 ofCivil Procedure Code. 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
defendantwhich may of two categories - (i) a claim to set-off against the plaintiff's demand is covered by
order 8 Rule6, 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 .defendant files suchcounter claims, the written statements is treated as a plaint.

Object of Pleadings

The whole object of pleading is to give a fair notice to each party of what the opponent's case is.
Pleadingsbring forth the real matters in dispute between the parties. It is necessary for the parties to
know eachother'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 matterswhich are admitted to be true. The facts admitted by any parties need not be pursued
or proved. Thus thepleadings save the parties much bother, expense and trouble of adducing evidence
in support of mattersalready admitted by a party, and they can concentrate their evidence to the issue
framed by the Court in thelight 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 theopposite
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 arecompelled 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 havebeen incorporated in order VI of the Civil Procedure Code 1908 ndamental Rules of
Pleadings:

1)That a pleading shall contain, only a statement of facts, and not Law;2)That a pleading shall contain all
material facts and material facts only.3)That a pleading shall state only the facts on which the party
pleading relies and not the evidence bywhich they are to be proved,4)That a pleading shall state such
material facts concisely, but with precision and certainty.

1.Facts and Not Law:

One of the fundamental rules of pleadings embodied in order VI rule 2 is that apleading shall contain
and contain only a statement of facts and not law. And it is for the judge todraw such inferences from
those facts as are permissible under the law of which he is bound to take judicial notice. A judge 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 thosefacts. If a plaintiff asserts a right in
himself without showing on what facts his claim of right is fundedor asserts that defendant is indebted
to him or owes him a duty without alleging the facts out ofwhich 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
legalconclusions may logically follow and which the court would take a judicial notice of. Thus where
aparty 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 thusbound the
defendant.Thus in a declaratory suit, it is not enough-to plead that the plaintiff is the legal heir of the
deceasedfor this is an inference of law. The plaintiff must show how he was related to the deceased, and
alsoshow the relationship of other claimants, and other material facts to show that he was nearer
inrelation 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 thedefendant took loan from the plaintiff on such and such
date and promised to return the moneyalong with specified interest on a particular date, and that he
requested the defendant to return thesaid amount after the date but that he refused to return the
money. If some witnesses were presentwhen the money was lent or when the demand was made or
when the refusal by the defendant wasmade, the fact should be stated specifically, for at the time of the
trial the court may order the plaintiffto adduce evidence in support of his statement, and then he can
rely on the evidence of thewitnesses in whose presence he had lent money or in whose presence he had
made a demand forthe return of the money.In a matrimonial petition, it is not enough to state that the
respondent is guilty of cruelty towards thepetitioner-wife and that she is entitled to divorce. The
petitioner must state all those facts whichestablish cruelty on the part of the respondent. She may state
that her husband is a drunkard andused to come home fully drunk and in a state of intoxication he
inflicted physical injuries on her, sheshould specify dates on which such incidents took place; or that the
husband used to abuse her or beat her in the presence of her friends and relations or that after her
marriage she was not allowed tovisit 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 hecohabited 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
statenegligence. First of all the plaintiff must state those facts which establish the defendant's
dutytowards the plaintiff. Thereafter, he must state how and in what manner was the defendant guilty
ofnegligence. Thus he must state all the facts on which his plaint is based. The inference of law to
thebreach of duty should be left to the court because the correct legal principles will be applied by
thecourt and the plaintiff cannot even add any prayer that a particular legal conclusion which
followsmust 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
mightotherwise have been pleaded. Such a plaint may be rejected on the ground that it discloses
nocause of action. The plaintiff or the defendant as the case may be, and his counsel must be on
theirguard not to omit any facts and straight-a-way jump to pleading legal interference without
statingsuch facts.For example, in a suit for recovery of money for the goods sold, the defendant should
not just takethe plea that he is not liable. Such a statement is a plea of law, and can hardly stand and in
spite ofhis good defence his case will fail. In such a case the defendant must clearly state that he did
notpurchase any goods from the plaintiff nor was there an agreement to do so. He may also state
thatthough the goods were sent to him, but he did not take the delivery as he had placed no
ordertherefore or that the goods were sold to him on credit and the money was to be paid to the
plaintiffafter the sale of such goods and the goods were still lying with him unsold, and that he was
willing toreturn the goods to the plaintiff in accordance with the written or oral understanding that in
case ofthe goods remaining unsold the same shall be taken back by the plaintiff. Such facts would be
validpleas.In another example of a suit for defamation and damages, it is not sufficient for the plaintiff to
statethat the defendant defamed him and therefore he was entitled to damages or special damages.
Theplaintiff must state all the facts of the defendant act or acts such as his public utterances in which
henamed the plaintiff and made remarks about his character or profession or the publications in
whichhe was painted in a manner as would in the opinion of a common man lower him in the eyes
orestimation of society. Wherever possible the plaintiff must give the exact words spoken or used inthe
entire sentence or statement and also give the general, grammatical or implied meaning of suchwords
spoken or used. Wherever there is any ambiguity, he may take the plea of "inuendo" andstate how such
a remark was commonly understood by persons known to him. Thus the plaintiffshould build his case on
facts from which the conclusion would naturally and logically follow.
 DRAFTING COMMON LAW TO INDIAN

Law in India has evolved from religious prescription to the current constitutional and legal system we
have today, traversing through secular legal systems and the common law.

India has a recorded legal history starting from the Vedic ages and some sort of civil law system may
have been in place during the Bronze Age and the Indus Valley civilization. Law as a matter of religious
prescriptions and philosophical discourse has an illustrious history in India. Emanating from the Vedas,
the Upanishads and other religious texts, it was a fertile field enriched by practitioners from different
Hindu philosophical schools and later by Jains and Buddhists.

Secular law in India varied widely from region to region and from ruler to ruler. Court systems for civil
and criminal matters were essential features of many ruling dynasties of ancient India. Excellent secular
court systems existed under the Mauryas (321-185 BCE) and the Mughals (16th – 19th centuries) with
the latter giving way to the current common law system.

Law after Independence

At the dawn of independence, the parliament of independent India was the forge where a document
that will guide the young nation was being crafted. It will fall on the keen legal mind of B. R. Ambedkar
to formulate a constitution for the newly independent nation. The Indian Bar had a role in the
Independence movement that can hardly be overstated – that the tallest leaders of the movement
across the political spectrum were lawyers is ample proof. The new nation saw its first leader in
Jawaharlal Nehru, and a paternal figure in M. K. Gandhi, both exemplary lawyers. Perhaps it is the
consequent understanding of law and its relation to society that prompted the founding fathers to
devote the energy required to form a Constitution of unprecedented magnitude in both scope and
length. India has an organic law as consequence of common law system. Through judicial
pronouncements and legislative action, this has been fine-tuned for Indian conditions. The Indian legal
system’s move towards a social justice paradigm, though undertook independently, can be seen to
mirror the changes in other territories with common law system.

Indian Judicial System is largely based on English Common Law system (where, law is developed by
judges through their decisions, orders, and judgments). It has created a federal system; with a Central
government coupled with State government.

There are many countries that use and apply the common law, which collectively may be called the
common law world. A feature of this world is that nowadays it largely operates through statutes
enacted by a country's democratic legislature, and that these mainly fall to be construed according to a
uniform system of rules, presumptions, principles, and canons evolved over centuries by common law
judges. The statutes subject to this interpretative regime may be called common law statutes.

The law of India refers to the system of law across the Indian nation. India maintains a hybrid legal
system with a mixture of civil, common law and customary, Islamic ethics,[1] or religious law within the
legal framework inherited from the colonial era and various legislation first introduced by the British are
still in effect in modified forms today. Since the drafting of the Indian Constitution, Indian laws also
adhere to the United Nations guidelines on human rights law and the environmental law.
Proposal and drafting

Typically, the text of a proposed law (that is, a bill) is drafted by the relevant ministry of the government.
The bill is circulated to other relevant ministries and sometimes even to the public, for their input. After
revisions are made (as necessary), the bill is presented for approval to the council of senior ministers,
headed by the Prime Minister (this is known as the Union Cabinet). On approval, the bill is introduced in
either House of the Parliament (either Lok Sabha or Rajya Sabha). The only exception to this is money
bills (bills of a fiscal nature) which can be introduced only in the Lok Sabha.

Scrutiny

In either House of the Parliament, a bill generally goes through three readings, that is:

One for introduction.

One for scrutiny.

One for passing.

Once a bill is passed by a majority in one House, it is then introduced to the other House where the
same stages are repeated. All bills (except money bills) need the approval of each House. This is
different from the state legislatures where the legislative council only plays an advisory role and where
the legislative assembly is the final authority. For money bills, the Lok Sabha has the final authority and
the Rajya Sabha has only recommendatory powers.

After a Bill is passed by majority in both Houses, the bill is sent to the President for assent. The President
can seek information or clarification about the bill and can return it to the Parliament for
reconsideration (but only once). If both Houses pass the bill again (regardless of whether they
implement the President's recommendation), the President must give his or her assent.

Enactment

When Presidential assent is received, the Bill becomes an Act of Parliament and is notified in the official
government gazette.

The President can also legislate by passing an ordinance when the Parliament is not in session. Once the
Parliament is in session again, the ordinance must be ratified by the Parliament for it to continue as a
law (otherwise it will lapse). The governor has similar ordinance-making powers at the state level.
 FUNDAMENTAL RULES OF PLEADING

INTRODUCTION-

Pleadings are specific documents filed by the parties in a lawsuit which states the position of the parties
in the litigation. Pleadings can be regarded as the backbone of any judicial system.

They are documents which contain the claims and counterclaims of the parties giving the opposing
parties an idea of what case they are to answer.

Pleadings contain complaints, answer, counterclaims and reply. A complaint in a civil case is very
important in declaring the plaintiff’s facts and stand in the case.
The aim of pleading is to ensure that the issues in the dispute are properly detailed to eliminate further
delay or expenses.

WHAT IS A PLEADING?

Pleading can be defined as a formal statement that requests the court to either grant a relief or pass a
verdict in a dispute. The plaintiff initiates a lawsuit by filing a complaint while the respondent will file an
answer to the claims of the plaintiff. The pleadings are the first documents that the parties file before
the court. However, other documents may be added as the trial continues.

WHAT IS THE PURPOSE OF THE SYSTEM OF PLEADING?

During court proceedings in the early times of England, the judge will sit to hear the parties to a dispute
at the court. As the necessity for people to take their cases to the courts established by the Crown
increased, so was the need for the recategorization of disputes

Therefore, the court requested parties to the dispute to submit written details of their position on the
matter. Thus, the judicial system was no longer at the reach of a poor and illiterate citizen who could not
afford the services of a legal expert. As the system progressed, it was more difficult for most of the
requirements preferred by the court to be met.

Thus, the modern court has adopted that pleadings be written to categorize cases into the appropriate
courts of jurisdiction. The purposes of pleadings can be summarized as follows:

Provision of notice for a lawsuit

1. Identify the facts that should be settled

Fundamental rules of pleading:

As aforesaid mentioned all the rules for the pleadings are mentioned in order6 which states four basic
rules as

1. The facts must be stated in every pleading not law

Facts must be concisely mentioned

1. Fact only, not law – The first rule Is that the law and the mixed question of the law or the fact must
not be mentioned only the important facts which are related to the cause of the action are to be
mentioned only.

As all the applicable laws are decided by the judge itself, But where the fact is based on some statute
the same must be mentioned including in the pleading itself. The reason for not mentioning the law in
the pleading is that As it is the duty court to examine all the facts of the case and then applies the law to
the fact of the case. The parties to the suit are open to mention law at any stage of the suit, Even though
they are not mentioned in the pleading. The legal effect of the law is not barred by this rule

2 Cause of action – All the facts scribbled in the plaint must be based on some cause of action. In the
substantive law for the framing of the issue, it is very important to have the cause of action which
decides the right of the plaintiffs and the act of the defendant violating the right or the title. All the facts
related to the cause of the action must be mentioned with very certainty.

3 Material Facts – As per order 6 rule 2 of the CPC state that only material fact is to be mentioned only.
Now the question arises what are material facts? The facts which are essential to the plaintiff’s cause of
action or the defendant’s defense which each party must prove. In the other way, we can say that a fact
becomes the material for the pleading of a party which he is bound to prove unless admitted. Where the
material facts are not present, neither the party is allowed to ask nor the court to give their decision on
those material facts.

4 Facts, Not evidence – The material facts on which parties rely are the fact probantia these are the facts
that need to be proved by the parties, and the evidence or the facts by which they are proved are called
fact probandum. Fact probandeum are not the facts in issue but only relevant facts will be proved at the
trial to prove all the facts in issue. There are some cases in which it is hard to find material facts in these
cases they are established by these statements and the evidence to prove their existence.

5 Concise and precision – To have a good claim it must be stated in the summary and the para format
and the unnecessary details must be omitted. Only the relevant and the related facts are mentioned in
the active voice is preferred as possible and having the quality of both concise and precise.