Pleadings Justice K T Sankaran Pleadings are very important in civil cases.

It is the duty of the lawyer to make a proper pleading. Since a considerable percentage of litigants are either illiterate or not conversant with law the duty of the lawyer of becomes more relevant facts of the case from the client. The lawyer has to even to anticipate probable evidence that may be let in. All the details should be comprehended, analysed and assimilated before drafting the pleadings. A good case may sometimes be lost because of bad drafting. Pleading are intended to put forth the case of the parties before court. Pleadings constitute the basis for the litigation. By the pleadings, the point at issue between the parties should be clear and ambiguous. The opposite party is made known of the case of the other party by the pleadings. While drafting the pleadings there should be no attempt to concealment of the relevant facts. Astuteness in drafting is necessary. But it should not go to the extent of putting the opposite party to surprise. From the pleadings, either party should be able to know what his opponent’s case is and what case he has to meet. The parties should get a fair idea from the pleadings as to what disputes involved in the case effectually and completely. Proper pleadings would enable the court to raise proper issue for trial. It would enable the parties to adduce proper evidence. It would enable the court to decide the case effectually and completely. Proper

pleadings would also avoid delay and minimise the expenditure of litigation. It is the duty of the lawyer to ensure that correct facts are brought before the court. He should ensure that wrong facrts, calculated to mislead the court are not pleaded. Judicial Pronouncements are effect to the effect that without proper pleadings, any amount of evidence is of no use and that such evidence shall not be looked into by the court. (AIR 1930 PC 57, AIR 1966 SC 1861, `1984 KLT 606, AIR 1958 SC255, AIR 1996 SC 112, AIR 1987 SC 1242) The Rules regarding pleading are provided in the Code of Civil Procedure Code. Certain other statues also provide for particular facts to be pleaded. For example, Specific Relief Act, section 16(c) and 22. Certain defence would be available to a defendant, in the light of the provisions of a statute. Such defence should not be omitted to be taken. The client would be able to supply only facts. It is the duty of the lawyer to put forth the relevant facts in the pleadings so

as to make a foundation for a claim of defence, taken into account the relevant provision of law. The role of the lawyer is very important in that context. Pleading is defined in Order VI Rule 1 CPC thus : “Pleading shall mean plaint or written statement.” Every suit shall be instituted by the presentation of a plaint of in such other manner as may be prescribed. (Section 26 Order IV Rule 1 and Order VII Rule 1 of CPC). Before drafting the plaint, it should be ascertained as to who may be joined as plaintiffs and who may be joined as defendants. (See Rules 1 and 3 of Order 1 CPC) It shall not be necessary that every defendant shall be interested as to all the relied claimed in any suit against him. (Rule 5 of Order I). The plaintiff may at his option join as parties to the same suit all or any of the persons severally or jointly liable on any one contract. (Rule 6 of Order 1 CPC). Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress he may join two or more defendants so that the question to which of the defendants is liable would be determined by the court as between all parties. (see Rule 7 of Order II) Where there are numerous persons having the same interest in one suit, Rule 8 of Order I provides for the remedy of a representative suit being filed. The representative suit can be on behalf of the plaintiff or against defendant. Rule 8 of Order I provides for the procedure in such suit. There are restrictions for abandoning, withdrawing or compromising such suits. A decree passed in a representative suit binds all persons on whose behalf or for whose benefit the suit is instituted or defended. (see Explanation VI to Section 11 CPC). Rule 1 of Order II provides that very suit shall as far as practical be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation, Rule 2 of Order II has give rise to several judicial pronouncement. Rule 2 provides that every suit shall include the whole of the claim which is entitled to make in respect of the cause of action. However, the plaintiff is free to relinquish any portion of claim; but if he so relinquishes or omits to sue on any portion of such claim, he shall not be entitled to file another suit in respect of that portion which omitted or relinquished. Special care should be taken to see that all the claims to which the plaintiff is entitled to in respect of the cause of action are sought for in the plaint.

Rule 3 of Order II CPC provides for joinder of cause of action in the same suit. Rule 4 of Order II stipulated what all causes of action casn be joined with a suit for recovery of immovable property. Order VI CPC provides for the pleadings generally. Order VII deals with the plaint. Order VIII deals with written statement, set off and counter claim. Every pleading shall contain, and contain only, a stamen in a concise form of the material facts on which the party pleading relies for his claim or defence, nut not the evidence by which they are to be proved. The pleading shall be divided into paragraphs and numbered consecutively. Dates, sums and numbers shall be shown in figures as well as in words. (Order VI Rule 2). If the party relies on any misinterpretation, fraud or breach of trust, willful default or undue influence, the facts constituting the same should be specifically pleaded. (Order VI Rule $). The burden of proof of misinterpretation, frauds and undue influence is on the party who alleges the same. ( See AIR 1976 SC 712; AIR 1941 PC 93; AIR 1950 PC 90; AIR 1967 SC 1395; 1989 (2) KLT 348; AIR 1975 KER 150; 1986 KLT S.N.38; 1988 (2) KLJ 156; 1997 (1) KLT 656; 20120 (4) KHC 927; 2010 (4) KLT 684) Any condition precedent, the performance of occurrence of which is intended to be contested, shall be distinctly be specified in the pleadings. (Rule 6 Order VI). No pleading shall except by way of amendment raise any new ground of claim or contain any allegation of fact inconsistent with the previous ruling of the party pleading the same (Rule 7 Order VI). The provision for amendment of pleadings is contained in Rule 17 of Order VI. It is tue that the court may allow amendment of pleadings at any stage. But after the amendment of CPC by ACT 22 of 2002, the scope of Rule 17 is restricted. See the distinction between Order VI Rule 17 of CPC and the provisions to section 22(2) of the Specific Relief Act: 2011(2) KLT 381. Pleading should not be scandalous, frivolous or vexatious. It should not contain matters which would tend to prejudice, embarrass or delay the fair trial of the suit of which is other wise an abuse of the process of the court. The court has jurisdiction to strike out such pleadings or portion of the same or to direct the parties to amend the pleadings (Rule 16 Order VI).

The defendant shall within thirty days from the date of service of summons on him, present a written statement of his defence. The court has power to extend the time upto 90 days from the date of service of summons, under the proviso to Rule 1 of Order VIII. Rule 1 of Order VIII was substituted by the CPC Amendment Act 49 of 1999 and further substituted by CPC Amendment Act 22 of 2002. The Supreme Court held in 2008 (17) SCC 117 that the provision is procedural and it does not affect the power of the court to take the written statement on record after 90 days. The defendant shall produce along with the written statement, the documents on which he relies. (Rule 1A of Order VIII) Wherever a denial of claim, or facts upon which the claim is founded is to be made such denial should be specific. If there is only a value denial, the court shall take as admitted the facts which is not specifically denied. (Rule 3 to 5 of Order VIII) (See 1960 KLT 348; 1972 KLT 74; AIR 1964 SC 538; AIR 1967 SC 109) Rule 6 of Order VIII relates to set off and Rules 6A to 6G relate to counter claim. Rules 7 and 8 apply to set off and counter claim In cases where set off or counter claim could be raised within the period of limitation and in the manner prescribed in the aforesaid Rules. Section 3(2)(b) of the Limitation Act provides that in that in the case of set off it shall be deemed to have been instituted on the same date as the suit to which the set off is pleaded; and in the case of counter claim, it shall be deemed to have been instituted on the date on which the counter claim is made in court. The lawyers should also see that the suit is filed within the period of limitation. If there is an acknowledgment of liability coming within the meaning of section 18 of limitation act or payment within the meaning of section 19 of limitation act, it should be specifically pleaded. The lawyer shall also keep in mind the provisions of the limitation act while preparing and presenting the pleadings. All the relevant statutes on the subject should be comprehended and applied while drafting the pleadings. If the suit is by or against the Government of India or public officers, the procedure under Order XXVII will apply. Procedure for suits by or against Military or Naval men or Airmen is contained in Order XXVIII. Order XXIX provides for suits by or against Corporations; Order XXXI deals with suits by or against Trustees, Executors and Administrators; Order XXXII deals

with suits by or against minors and persons of unsound mind; Order XXXIII provides for procedure in suits by indigent persons; Order XXXIV deals with suits relating to mortgages of immovable property; Order XXXV deals with interpleader suits and Order XXXVII provides for the procedure for Summary suits. The provisions of these Orders, whichever is applicable to case on hand, should be adverted to and comprehended by the lawyer before drafting the pleadings. If a special statute provides for a period of limitation different from the period provided for in the Schedule to the Limitation Act, care should be taken to see that the suit coming under the special statute is filed within the time prescribed therein. See Section 29(2) of the Limitation Act. The amendment made by the CPC Amendment Act 49 of 1999 and CPC Amendment Act of 22 of 2002 shall also be borne in mind. See the amendments to section 26, Rules 5,15,17 and 18 of Order VI; Rules 9,11,14,15 and 18 of Order VII and Rules 1,1A,9 and 10 of Order VII; Rule 2 of Order IX. Before actual trial of the case, several interlocutory applications arises in a suit. A suit may be dismissed for default or decree exparte. For restoration of the suit dismissed for default and for setting aside exparte decree, procedure has been prescribed in Order IX. Interlocutory Applications may arise for; Discover and Inspection (Order XI); Production of documents (Order XIII); Summoning of witnesses (Order XVI); Adjournments (Order XVII); Impleading Representatives of deceased parties (Order XXII); Commissions for local investigation, for examination of witnesses, to examine accounts and to effect partition (Order XXVI), Arrest and attachment before judgment ( Order XXXVIII), Temporary injunctions and interlocutory orders (Order XXXIX), appointment of Receivers (Order XL) etc. Interlocutory applications also require proper drafting. Care should be taken to prepare affidavits containing the relevant averments in support of such Interlocutory Applications. The provisions of the Kerala Civil Courts Act and the amendments thereto should be borne in mind of the question of pecuniary jurisdiction of the Subordinate Courts and for deciding in which court the suit or appeal should be filed. It is necessary to study the Kerala Court Fees and Suits Valuation Act and Civil Rules of Practice, Kerala.

Drafting of pleadings is an art. Intense study of Code of Civil Procedure and other laws relevant for the subject of the case is required to acquire the skill.

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