Drafting of Pleadings Basics

Sampath Bulusu
 What Are Pleadings?
• ‘Pleadings’ means plaint or written statement. (Order VI,
Rule 1, C.P.C.)
• ‘Plaint’ is the statement of claim, in writing and filed by
the plaintiff , in which he sets out his cause of action with
all necessary particulars .
• ‘Written Statement (WS)’ Is a pleading of a defendant. A
reply of a defendant to the plaint filed by a plaintiff. A WS
is a pleading of a defendant dealing with every material
fact of a plaint. It may also contain new facts in favour of
a defendant or legal objections against the claim of a
plaintiff.
 Object and Importance of Pleadings
“The object and purpose of pleading is to enable
the adversary party to know the case it has to
meet........ In such a case it is the duty of the
court to ascertain the substance of the pleadings
to determine the question.” Ram Sarup Gupta
(dead) by L.Rs. v. Bishun Narain Inter College &
Ors., AIR 1987 SC 1242
 Privy Council & Supreme Court on
Pleadings
Pleadings and particulars are required to enable the court to decide
the rights of the parties in the trial. Thus, the pleadings are more to
help the court in narrowing the controversy involved and to inform the
parties concerned to the question in issue, so that the parties may
adduce appropriate evidence on the said issue. It is settled legal
proposition that as a rule relief not founded on the pleadings should
not be granted.; Therefore, a decision of a case cannot be based on
grounds outside the pleadings of the parties. The pleadings and issues
are to ascertain the real dispute between the parties to narrow the
area of conflict and to see just where the two sides differ. (Sri Mahant
Govind Rao v. Sita Ram Kesho, (1898) 25 Ind. App. 195; M/s. Trojan &
Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235; Raruha Singh v.
Achal Singh & Ors.; AIR 1961 SC 1097; Om Prakash Gupta v. Ranbir B.
Goyal, AIR 2002 SC 665; Ishwar Dutt v. Land Acquisition Collector &
Anr., AIR 2005 SC 3165; and State of Maharashtra v. Hindustan
Construction Company Ltd., (2010) 4 SCC 518.)
 Certain Basic Provisions of C.P.C.
Before Drafting of a Plaint or a WS
• Jurisdiction of Civil Courts
• Place of Suing
• Institution of Suit
• Parties to a Suit
• Joinder of Parties
• Joinder of Causes
• Special Suits
 Types of Civil Suits
• Suit for Possession
• Suit for Recovery of Money
• Suit for Injunction
• Suit for Declaration
• Suit for Specific Performance
• Suit for Partition
• Suit for Accounts
This merely an illustrative list
 Special Suits
• Suits by or against the Government or public
officers in their official capacity: Sec .80, C.P.C.
• Suits by alien enemies: Sec 83, C.P.C.
• Suit by a foreign State: Sec 84, C.P.C.
• Suits against foreign rulers, Ambassadors, and
Envoys: Sec.86, C.P.C.
• Suits by or against minors and persons of
unsound mind: Order XXXII, Rule 1, C.P.C.
 Special Suits-Contd.
• Interpleader suit: Sec.88 Order XXXV, C.P.C.
• Suits by indigent persons (Pauper Suits) Order
XXXII, Rule 1
• Mortgage suits: Order XXXIV, C.P.C.
• Summary suits: Order XXXVII, C.P.C.- Please
refer Mechelec Engineers (1976) 4 SCC 687)
• Public trusts/Charity Suits: Sec.92, C.P.C.
• Special case: S.90 and Order XXXVI, C.P.C.
 Frame of a Suit Order II, C.P.C.
• Order 2 Rule 1 "Every suit shall as far as
practicable be framed so as to afford ground for
final decision upon the subject in dispute and to
prevent further litigation concerning them.”
• Underlying Principle:- Firstly, before framing a suit
a lawyer should bear in mind that as far as
practicable, it should be so framed as to afford
ground for final decision of the subject in
disputes and secondly, to prevent further
litigation concerning them.
 Frame of a Suit-Contd.
• Order 2 Rule 2: “Every suit shall include the whole of the claims which
the plaintiff is entitled to make in respect of the cause of action; but a
plaintiff may relinquish any portion of his claim in order to bring the
suit within the jurisdiction of any court.

• Underlying Principle:- Is to avoid the multiplicity of suits, so its requires

that every suit shall include the whole of the claim which the plaintiff
is entitled to make in respect of the cause of action. If he omits or
relinquishes any portion of his claim he shall not afterwards sue in
respect of the portion so omitted or relinquishes but if he omits or
relinquished any relief with the permission of the court he shall
afterward can sue for the relief so omitted or relinquished ( Order 2
Rule 2 (3) )
 Order VI C.P.C.
Rules of pleadings:-
• Whole facts: State or write your whole case in your
pleadings, i.e., all the material facts on which you relies for
your claim or defence.
• Avoid law: Do not cite or write the law. Only
write/state/cite the facts in your pleading.
• Avoid evidence: Do not state the evidence by which such
facts are to be proved. Evidence may either be oral,
written, documentary, or circumstantial etc.
• Avoid anticipation: Do not anticipate opponent’s pleading
and plead to anything, which is not alleged against you.
• Be concise: State your facts concisely and precisely.
• Avoid arguing: Do not argue in the pleadings.
 Order 6, Rule 2
• Order 6, Rule 2 is the fundamental rule of
pleading. When analyzed, it will be found to
require four things:---
• Every pleading must state facts and not law.
• It must state material facts, and material facts
only.
• It must state only the facts on which the party
pleading relies for his claim or defence, and not
the evidence by which they are to be proved.
• It must state such facts in a concise form.
 Material Facts
According to Order 6, Rule 4, the following are material facts:-

• If you allege fraud, cheating, misrepresentation, then give particulars of

such fraud etc.
• If it is not done then the Court will take notice brevity (briefness,
shortness) allegation of fraud.
• Every fact which a plaintiff “must allege in order to show a right to sue”.
• Every fact which a defendant “must allege in order to constitute his
defence”.
• If either the plaintiff or the defendant puts their case on alternative
grounds, every fact vital to any such alternative ground.
• Every fact which may not be necessary to show a right of suit but which
the plaintiff will be required to prove at the trial to support his case.
• Every fact, which the defendant is required to prove at the trial, and which
will be a defence either wholly or partly to the plaintiff’s claim.
 Contents of a Plaint
Order 7 Rule 1 of Civil Procedure Code says that a plaint shall contain the following
particulars:-
• The name of the court in which the suit is brought.
• The name, description and place of residence of the plaintiff.
• The name, description and place of residence of the defendant, so far as they can
be ascertained.
• Where the plaintiff or defendant is a minor or a person of unsound mind, a
statement to that effect
• The fact constituting the cause of action and when it arose.
• The fact showing that the court has jurisdiction;
• The relief which the plaintiff claim;
• Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the
amount so allowed or so relinquished :
and lastly
• a statement of the value of the subject matter of the suit for the purposes of
jurisdiction and of court fees, so far as the case admits.
 Written Statement
• The term Written Statement is not defined in
C.P.C. It is referred to as ‘WS’.
• Order VIII C.P.C. sets out rules as to the contents
of a WS.
• One can say “WS is the pleading of the
defendant wherein he deals with every material
fact alleged by the plaintiff in his plaint and also
states any new facts in his favour or takes legal
objections against the claim of the plaintiff.”
 Written Statement- Order VIII C.P.C.
• Written statement is the defence of the defendants.
A 'defence' called the written statement ,in general this
is a reply of plaint ,in which defendant deny or admit the
each and every allegation or facts given in the plaint.
Denial or admission must be Para wise and clear. In the
written statement defendant can put his case also under
the heading additional plea, and can states new facts or
ground which is necessary to defeat the opponent. If
defendant want to put his own claim against the plaintiff
he can put it by way of set- off and counterclaim u/o 8
Rule 6 and 6A of C.P.C.
 Drafting of a Written Statement
• Order VIII provides for the filing of a WS, the
particulars to be contained therein and the
manner of doing so.
• It is the duty of the defendant’s lawyer to study
the plaint thoroughly and all the documents
submitted by the plaintiff with the plaint in
support of his claim. After the thorough study of
the plaint and supported documents a para wise
answers to the averments in plaint can be
drafted.
 Provisions in C.P.C. Relating to WS
• Time for Filing of Written Statement-Order VIII
Rule 1
• Time for filing written statement is fix for 30 days
from the date of service of summons on him and
maximum time limit from the date of service of
summons is ninety days -Order VIII Rule 1.
• Provision of Order VIII Rule 1 are directory in
nature even after expiry of stipulated period
court can extend time to file written statement
under certain circumstances
 WS and Documents Relied Upon
• Duty of defendant to produce document upon which relief is claimed or relied
upon by him -Order VIII Rule 1A

"(1) Where the defendant bases his defence upon a document or relies upon any
document in his possession or power, in support of his defence or claim for set-off
or counterclaim, he shall enter such document in a list, and shall produce it in Court
when the written statement is presented by him and shall, at the same time, deliver
the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in the possession or power of the defendant, he
shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the defendant under this rule,
but, is not so produced shall not, without the leave of the Court, be received in
evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to documents-

(a) produced for the cross-examination of the plaintiff s witnesses, or
(b) handed over to a witness merely to refresh his memory."
 Facts Pleaded in a WS
• New Facts Must be Specially Pleaded (Order VIII Rule 2.):-

Order VIII,Rule 2. requires that the defendant must raise by his

pleading all matters which show the suit not to be maintainable, or
that the-transaction is either void or voidable in point of law, and all
such grounds of defence as, if not raised, would be likely to take the
opposite party by surprise. or would raise issues of fact not arising out
of the plaint, as for instance, fraud, limitation, release,
payment, performance, or facts showing illegality.

• Denial to be Specific(Order VIII Rule 3.):-

Order VIII Rule 3. requires that 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.
 Denials in a WS should be Specific
Not Evasive
• Evasive denial(Order VIII Rule 4.):-
Rule 4 of Order VIII of C.P.C. says that where a defendant denies an allegation of fact in a plaint, he must not do
so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it
shall not be sufficient to deny that he received that particular amount, but he must deny that he received that
sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse
circumstances, it shall not be sufficient to deny it along with those circumstances.

• Specific Denial(Order VIII Rule 5.):-

[(1)] Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be
not admitted in the pleading of the defendant, shall be taken to be admitted except as against person under
disability.

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such
admission.

[(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the
basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its
discretion, require any such fact to be proved.

(3) In exercising its discretion under the proviso to sub- rule (1) or under sub-rule (2), the Court shall have due
regard to the fact whether the defendant could have, or has, engaged a pleader.
 WS and Set Off
• Particular of Set-off to be given in Written Statement ( Order VIII Rule 6 CPC)

A reading of Rule 6 of Order VIII CPC would show that following conditions have to be satisfied before a
defendant is entitled to set-off under that Rule:-
"A defendant may claim a set-off under this rule if the following conditions are satisfied, but not
otherwise--

I. The suit must be one for the recovery of money.

II. As regards the amount claimed to be set-off--

(a) it must be an ascertained sum of money;

(b) such sum must be legally recoverable;

 WS and Set Off -Contd.
(c) it must be recoverable by the defendant or by all the defendants if more
than one;

(d) it must be recoverable by the defendant from the plaintiff or all the
plaintiffs if more than one. Thus, where th defendant is sued by the agent, he
cannot set-off what is due to him from the principal as the principal is not the
plaintiff;

(e) it must not exceed the pecuniary limits of the jurisdiction of the court in
which the suit is brought; and

(f) both parties must fill, in the defendant's claim to set-off the same,
character as they fill in the plaintiff's suit
 Counter Claim
Counter-Claim by Defendant (Order VIII Rule 6-A):
(1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of
counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing
to the defendant against the plaintiff either before or after the filing of the suit but before the
defendant has delivered his defence or before the time limited for delivering his defence has expired,
whether such counter-claim is in the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce
a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the
defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to the plaints.
 Q&A

FEEL FREE TO ASK ANY QUESTIONS

NO QUESTION IS A SILLY QUESTION