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DRAFTING AND PLEADING



How to Draft a Perfect Case:

A successful lawyer must know the basic principal of drafting of a plaint, written statement; petition and affidavit etc. Pleadings are foundation of the claims of parties. Well drafted pleading play a very important role to get justice for their client.

Pleading in a Suit:
Pleading is defined in the code of civil procedure in O 6, RULE 1.as given below :- 

 "pleading" shall mean plaint or written statement."

Order 6 Rule 2 says pleading to state material facts and not evidence.
2 (1)every pleading shall contain and contain only a statement in concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. Basic principle of pleading is that "pleading should refer  to fact alone, it should not be argumentative averment."(M/s strong construction v. state of u.p. AIR 2005 All 224), Mandatory requirements--see-- Jitu Patnaik versus Sanatan Mohakud & Others 2012 (1) U.A.D. 767 (SC).

Pleading--held-- The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case,such evidence has been adduced or a finding of fact has been recorded by the court, it is just to be ignored. Union of India versus Ibrahim Uddin & Anr 2012 (2) U.A.D. 566 (SC) 

Object of Pleading:-"It is well settled position of law that the whole object of pleading is to give fair notice to each party of what the opponent's case is, and to ascertain, with precision, the points on which the parties agree and those on which they differ, and thus to bring the parties to a definite issue. The purpose of pleading is also to eradicate irrelevancy. In order to have a fair trial it is imperative that the party should state the essential facts so that other party may not be taken by surprise. The parties thus themselves know what are matters left in dispute and what facts they have to prove at the proceeding and are thus given an opportunity to bring forward such evidence as may be appropriate. The main object of pleadings is to find out and narrow down the controversy between the parties. Contention which are not based on the pleadings cannot be permitted to be raised either at the time of arguments or at the appellate stage."The New India Assurance Co. Ltd. vs. Surender singh & others. (HC) UAD 2007, 423. 

 There are two types of pleading mainly in a suit:

1. Plaint.

 2. Written statement.

Plaint

Order 7 Rule 1 of civil procedure code says that plaint shall contain the following particulars:-
1. The name of the court in which the suit is brought.
2. The name, description and place of residence of the plaintiff.
3. The name, description and place of residence of the defendant, so far as they can be ascertained.
4. Where the plaintiff or defendant is a minor or a person of unsound mind, a statement to that effect
5. The fact constituting the cause of action and when it arose.
6. The fact showing that the court has jurisdiction;
7. The relief which the plaintiff claim;
8. Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or so relinquished :and
9. 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:

 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 counter claim u/o 8 Rule 6 and 6A of C.P.C.

NOTE:-The facts which remain unanswered by the defendant, it will be presumed that the said fact was admitted by the defendant. In general the fact which is taken to be admitted need not be proved. Pleading must be unambiguous clear and correct .Carelessly prepared pleading can spoil the suit.

Time for Filing of Written Statement:

 Time for filing written statement is fix for 30 days from the date of service of summon on him and maximum time limit from the date of service of summons is ninety days. Order, 8 Rule 1
Provision of Order 8,Rule 1.are directory in nature even after expiry of stipulated period court can extend time to file written statement. (AIR 2002 SC 2487, Rameshwar Lal v. Daya Nand AIR 2005.)

Frame of Suit:

Order 2 Rule 1 says:-  "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." There are two important things in order 2 rule 1, firstly, before framing a suit pleader should be remembered 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.  

 Order 2 Rule 2 says:- that "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 relinguish any portion of his claim in order to bring the suit  within the jurisdiction of any court. Actually the main object of this rule 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 ( Order 2 Rule2 sub rule 3 ) 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 ( Sub rule 3 of Rule 2 C.P.C.)

Fundamental Rule of Pleading:-

1. No amount of evidence can be looked into, upon a plea which was never put forward in the pleading. A question which did arise from the pleadings and which was not the subject matter of an issue , cannot be decided by the court.

 It is well settled that no amount of evidence can be looked into to find a case for which there has been absolutely no foundation in the pleadings. (Vide AIR 1930 P.C. 57 - Siddik Mohammed Shah v. Mt. Saran and others, Elizabeth v. Saramma - 1984 K.L.T. 606, Trojan & Co., v. Nagappa - AIR 1953 SC 235 , Bhagwadi Prasad v. Chandramaul - AIR 1966 SC 735). 

2.  A court cannot make out a case not pleaded , the court should confine its decision to the question raised in pleading nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint .

3.  A factual issues cannot be raised as considered for the first time in a second appeal.2009 (1) SCCD 220 SC. Bachhaj Nahar vs. Nilima Mandal and others. 

 

 "Material facts" and "Particulars"--- Distinction-- A distinction between "Material facts" and "particulars" however, must not be overlooked. "Material facts" are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defense."Particulars" on the other hand, are details in support of material facts pleaded by the party.They amplify, refine and embelish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative."Particulars" thus ensure conduct of fair trial and would not take the opposite party by surprise.

All "material facts" must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence.Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial."


Philipps v. Philipps and others (1878) 4 Q.B.D. 127. Virender Nath Gautam v. Satpal Singh and Others 2007 (3) SCC 617.

"All basic and primary facts which must be proved at the trial by a party to establish the existence of cause of action or defence are material facts.The bare allegations are never treated as material facts."
Jitu Patnaik v. Sanatan Mohakud & Others.
 2012 (1) UAD 767 SC
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