Fundamental Rules of Pleadings
The English law of pleading has got four fundamental rules of pleadings upon which Order 6 of the Code of Civil Procedure is based which are set out as under:
- Every pleading must state facts and not law.
- It must state all material facts and material facts only.
- It must state only the facts on which the party’s pleading relies and not the evidence by which they are to be proved; and
- It must state such facts concisely, but with precision and certainty.
(1) Facts, not law
The first fundamental rule is that neither provisions of law nor conclusions of law 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 take judicial notice.
It will not be sufficient to state that ‘Abu Mohammad 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; because these are the facts which constitute a valid gift under Muslim Law. To allege that ‘Abu Mohammad made a gift’ will be a conclusion of law from the facts which are not to be state directly in the pleading.
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 use due care to prevent an injury to other.
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 goes to prove that in the circumstances the defendant does not owe to the plaintiff. The defendant should state that he never borrowed from the plaintiff, or good were never ordered, or were never delivered, or that they were not equal to 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It is not sufficient in a suit upon a contract for the defendant to, merely, plead the ‘the contract is rescinded’, the defendant must plead in what manner and by what means he contends that is was rescinded.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 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:
- Foreign Laws: The courts 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 any other facts.
- Mixed question of Laws and facts: Where a question is one of mixed law and fact, it is permissible and proper 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.
- 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 or defendant (Order 6 r.6 of C.P.C.), as for instance, the legality of the notice under section 80, C.P.C.
- Custom and Usage of Trades: Custom and usage of any trade and business shall be pleaded like any other facts, if a party wants to rely on them. But a custom repeatedly brought before Court and recognised 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.
- The facts of negligence, right or liability, unlawful or wrongful act should be specifically pleaded. Every plea of fact should be specifically raised and proved.
(2) Material facts
The second fundamental rule of pleading is that every pleading shall contain only a statement of material facts on which the party pleading relies for his claim or defence. This rule has been enunciated in Order 6, Rule 2 of the Code of Civil Procedure. The omission to observe this rule may increase the difficulty in the Court’s task of ascertaining the rights of the parties.
Now, the question arises what are material facts?
The facts which are essential to the plaintiff’s cause of action or to the defendant’s defence. 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 defence. If one is in reasonable doubt about a particular fact as a material fact 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 pleading by amendment which is the right of the plaintiff and defendant; but when a pleading is amended one is likely to 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 it, all facts are material which tends to take the case out of the rule or out of exception. For instance:
- If a 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.
- Where a plaintiff claims an alternative relief, he must plead facts entitling him, for such relief.
- Where the question of age or time affects the right of the parties, the facts should be specifically pleaded.
- Where a plaintiff sues on the basis of a title he must state the nature of the deed from which he has derived title.
- The plea that a woman claiming maintenance has lost her right due to continuous desertion or living in adultery should be specifically raised.
- Where the plea is based on custom, it must be stated in the precise form what the custom is. For instance, if a 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.
- Content of documents: Whenever the contents of document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible without setting out whole or any part thereof unless any precise words thereof are material.
For instance, if plaintiff’s claim is based on a sale-deed, it is sufficient to state that “defendant has sold the property to the property to the plaintiff by a sale-deed dated ”
- Matters of Inducement: It means introductory or prefatory facts which should be stated in the first and second paras in the body of the plaint or written statement. Though it is not necessary yet sometimes it is desirable to commence a plaint with some introductory allegations stating who the parties are, what business they carry on how they are related and connected and other surrounding circumstances leading up to the dispute. Though these are not material facts yet these are allowed in England and hence in India too. But the matter of inducement should be reduced to the minimum need.
(3) Facts, Not Evidence
The third fundamental rule of pleading has been laid down by Order 6, rule 2 of the Code 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 Prabanda, i.e. the facts to be proved, and they should be stated in the pleadings. The evidence or facts by which Facta Probanda are to be proved are called Facts Probantia, and they are not to be stated in the pleadings. Facta Probanda 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 his own hand, in the defence 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 defence 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.
(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 omitted in 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 point and 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 called by 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.
A good pleader should bear in mind the following points in relation to a pleading:
- Describe the names and places accurately and spell them correctly and adopt the same spelling throughout.
- 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 plaintiffs or defendants, they can be referred to as ‘the plaintiff Ramashankar’ or ‘the defendant-Hariharan’ as the case may be.
- A lawyer should allege all facts boldly and plainly. He should use the language of the document or the act itself; 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, inthis case while drafting the pleading instead “ the assured killed himself” or he committed suicide,” plead that “the assured died of his own hand.”
- 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 all necessary particulars in the pleading.
- Every pleading shall be signed by the party and his advocate and, if the party is unable to sign the pleading it may be signed by this agent.
- Every pleading shall be verified by the party or the parties. Verification can also be made by any other person if acquainted with the facts of pleadings. False verification is an offence punishable by the Indian Penal Code.
- In cases where a corporation is a party, pleading may be verified by Secretary or by the director or by any other principal officer of that corporation who is able to depose the facts of the case. In verification clause one should denote according to the numbers of paragraph what he verified outy of his own knowledge and what he verified upon the information received and believed to be true.