FUNDAMENTAL RULES OF

PLEADING: RULES AND CRITICAL

ANALYSIS
(Term paper towards the fulfilment of the Project in the subject of Civil Procedure Code)

SUBMITTED BY PARIKSHIT SHUKLA (1281)

UTKARSH SAXENA (1289)
SHARMA
B.B.A L.L.B (HONS.)
UG SEMESTER III

SUBMITTED TO M R. DEEPANKAR
FACULTY OF LAW
N ATIONAL LAW

UNIVERSITY
SECTION A

JODHPUR
NATIONAL LAW UNIVERSITY, JODHPUR
SUMMER SESSION
(JULY- NOVEMBER 2016)

TABLE OF CONTENTS

TABLE OF CONTENTS.........................................................................................................2
INTRODUCTION....................................................................................................................2
RESEARCH METHODOLOGY...........................................................................................5
I.

AIM AND OBJECTIVES....................................................................................................5

II.

SCOPE AND LIMITATIONS...............................................................................................5

III. RESEARCH QUESTIONS...................................................................................................5

IV. METHOD OF WRITING....................................................................................................5
V.

SOURCES OF DATA.........................................................................................................5

VI. MODE OF CITATION........................................................................................................5

FUNDAMENTAL RULES OF PLEADINGS: ORDER 6, RULE 2....................................6
I.

EVERY PLEADING SHALL CONTAIN ALL MATERIAL FACTS AND MATERIAL FACTS

ONLY.......................................................................................................................................6
II.

ONLY MATERIAL FACTS SHOULD BE STATED, NOT THE EVIDENCE BY WHICH THEY

ARE TO BE PROVED.............................................................................................................12
III. EVERY PLEADING SHALL STATE FACTS AND NOT LAW..............................................15
IV. FACTS MUST BE STATED IN A CONCISE FORM............................................................19
V.

ORDER 6, RULE 3.........................................................................................................19

CRITICAL ANALYSIS.........................................................................................................20
INDEX OF AUTHORITIES.................................................................................................22

PG. 2

INTRODUCTION
The system of pleadings in India is structured as per the provisions of the Code of Civil
Procedure, 1908 (hereinafter referred to as C.P.C.). There have been supplementary rules
made by the Supreme Court, the State High Courts and other special enactments. 1 The rules
of pleadings are generally dealt with in Order 6 of the C.P.C. Order 7 and Order 8 also
mention certain rules regarding drafting of pleadings. Order 6 introduced into India the
leading rules of pleadings followed in England.2 Rule 1 of the order defines pleading to
mean plaint or written statement. Pleading as defined by Section 225 of the Judicature Act
1925, includes any petition or summons and also includes the statement in writing of the
claim or demand of any plaintiff and of defence of any defendant thereto and of reply of the
plaintiff to any counterclaim of a defendant.3
A plaint is a statement of claim in which the plaintiff establishes his cause of action with all
necessary particulars. A written statement is a statement of defence in which the defendant
deals with every material fact alleged by the plaintiff in his plaint and also mentions any new
facts that support his stand.4 Usually, after the written statement to the plaint is filed, parties
do not have a right to file further pleadings without the permission of the court, however in
some cases where the plaintiff is allowed to amend the plaint, the defendant is subsequently
allowed to present further and additional written statement to the amended plaint. Also in
situations where the defendant makes any counterclaim in his written statement, the plaintiff
is granted permission to file his written statement to the defendants counterclaim. Therefore
in a broader sense, pleadings means and includes plaintiffs plaint, written statement of the
defendant to the plaintiff, written statement of the plaintiff to the defendants counter claim in
his written statement.5
Pleadings are statements in writing drawn up and filed up by each party in a case, stating
what his contentions will be at the trial and furnishing all such information that the opposite

A.B. Majumdar, Majumdar On Plaints (Calcutta: Eastern Law House, 1995) at 1.

S. Sarkar and V.R. Manohar, Sarkars The Law Of Civil Procedure (11th edn., Nagpur: Wadhwa And Company,
2006) at 1022.
3
U.M. Pandit and S.M. Amin, Principles And Precedents Of Pleadings And Conveyancing (2nd edn., Bombay:
N.M. Tripathi Pvt. Ltd., 1994) at 1.
4
P.C. Mogha, The Law Of Pleadings In India With Precedents (M.C. Agarwal and G.C. Mogha ed., 17th edn.,
Kolkota: Eastern Law House, 2006) at 5.
5
Supra note 3.
2

PG. 3

party needs to know in order to prepare his case in reply. 6 This project examines the rules and
principles regarding pleadings as mentioned in Order 6 of the C.P.C.
Pleadings are not only meant to facilitate the parties but also help the court define with
certainty the scope of the issue at hand. The purpose of rules of pleadings is to bring about
justice and to prevent multiplicity of proceedings.7 Rules regarding pleadings assist in the
regulation of the business and procedures of the court. They do not create new legal rights
where none exist.8
Order 6 contains 18 rules. Rule 2 is the most fundamental and significant rule regarding
pleadings. According to this there are four basic rules of pleadings:9
(1) Every pleading must contain all the material facts and material facts only.
(2) It must state only those facts on which the party pleading relies for his claim or
defence, and not the evidence by which they are to be proved.
(3) Every pleading shall state facts and not law.
(4) It must state the facts concisely but with precision and certainty.
Each of the above rules shall be dealt separately in the following chapters. Other rules of
Order 6 shall be examined. Also certain rules of Order 7 and Order 8 shall be looked into.

Supra note 4 at 3.
Supra note 4 at 3.
8
Supra note 4 at 4.
9
Supra note 4 at 17.
7

PG. 4

RESEARCH METHODOLOGY

A.

AIM AND OBJECTIVES

This paper essentially seeks to examine the rules relating to pleadings. It discusses and
analyses the provisions in the C.P.C. that deal with the rules of pleadings. It therefore
attempts to study the rules of pleadings by analysing important cases on the subject.

B.

SCOPE AND LIMITATIONS

The scope of the paper is limited to the study of rules of pleadings as contained in Order 6 of
the C.P.C. Few provisions from Order 7 and Order 8 have been discussed. Specific State
amendments have not been dealt with.

C.

RESEARCH QUESTIONS

What are the provisions available in the C.P.C regarding rules of pleadings?

What are the essential rules of pleadings and the scope of applications of these
provisions?

What are the important cases and decisions in this area?

D.

METHOD OF WRITING

In this paper, the researcher has used a descriptive as well as analytical style of writing.

E.

SOURCES OF DATA

Both primary and secondary sources of data have been used.

F.

MODE OF CITATION

A uniform mode of citation has been used.

PG. 5

FUNDAMENTAL RULES OF PLEADINGS: ORDER 6, RULE 2

I. EVERY PLEADING SHALL CONTAIN ALL MATERIAL FACTS AND MATERIAL FACTS
ONLY

Order 6, Rule 2 (1) says that a pleading shall contain, and contain only, a statement of the
material facts on which the party pleading relies for his claim or defence. This principle thus
means that (i) the party pleading must mention all material facts on which he would rely to
establish his case; and (ii) that the party must plead only material facts, and not any fact
which is immaterial.10 The very wording of the rule shows that emphasis is laid on the
pleading of material facts only. Thus it is essential to understand what these material facts are
that must be stated in the pleadings.
A fact can be said to be material for the pleading of a party, which he is obligated to prove at
the trial for him to succeed in his claim or defence. Material facts are those facts which a
plaintiff must state in order to establish that he has a right to sue, i.e., a right to the reliefs
claimed in the plaint, or a defendant must allege to set up his defence. Facts which are not
required to constitute a claim or defence are not material. 11 This implies that, whether a
particular fact is material or not depends primarily on the circumstances of the case. 12 The
word material means all that is necessary to form a complete cause of action.
A pleader is required to collect all facts, whether material or not from his client and then read
those in the light of the circumstances of the case to see what facts are material that should be
pleaded. In case there is doubt about whether a given fact is material or not, it would be better
to state the fact in the pleading than to omit it, for if later it is discovered that the fact was
material, he may not be permitted to plead it.13
To determine whether material facts have been pleaded or not, all such facts should be put
together and seen whether, if all those facts were proved, the plaintiff would be entitled to the
reliefs claimed. If yes, then each fact should be considered on the ground that if it was not
10

Supra note 4 at 28.

Supra note 4 at 28.
12
Supra note 2 at 1026.
13
Supra note 4 at 29.
11

PG. 6

proved, would the plaintiff still succeed. If he could even without establishing that fact, then
the fact should not be included. All the facts that remain after such elimination would be
material facts that need to be pleaded. If it is found that even if all of those facts are proved,
the plaintiff would not succeed and some further facts have to be proved, then those facts
should also be pleaded.14
Certain instances of material facts are as follows. In a case of defamation where words of
praise are spoken ironically as to convey a derogatory meaning, it should be alleged that they
were so intended and comprehended. The publication of defamatory statement should be
alleged and time, place, when, where and how they were published should be specified. 15 In a
suit for libel, the defamatory words must be clearly mentioned in the plaint, and in case where
the defamatory sense is not apparent, the innuendo must be specifically stated. In a case
where collusion is alleged between X and Y, the fact that they knew about the improper
motives of each other is material.16
If a suit is brought under a specific statute, all facts essential to bring it within the scope of
that enactment must be pleaded. Where the law applicable to a case has an exception to it, all
facts that would remove the case out of the rule or out of the exception are material. If a party
claims the application of a special rule of Hindu or Mohammeddan law, it should plead all the
facts that would attract the rule. For example, a Muslim dies leaving five heirs, two grandsons
by one son and three by another son. Under the Sunni school, property would be divided per
capita, thus all the five grandsons would take one-fifth share each. In Shia law, the grandsons
would take per stirpes, i.e., the grandsons in one branch will have to divide in half of their
fathers share and the other branch will have to divide into three of their fathers half share.
Therefore it becomes material to state whether the deceased Muslim was a Sunni or a Shia.17
Now certain instances of immaterial facts would be discussed. The pleadings in the lower
courts often contain many allegations of immaterial facts that should not be pleaded. In an
eviction petition based on a bona fide requirement, it is not necessary to plead that there is no
other accommodation in the city. In a suit for money lent, it is not material to plead that the
money was lent at the request of the defendant or a third party, or because the plaintiff trusted
14

Supra note 4 at 30.

Supra note 4 at 25.
16
Supra note 4 at 32.
17
Supra note 4 at 32.
15

PG. 7

the honesty of the defendant, or that the defendant was in poor condition. 18 It is sometimes
alleged that the defendant has not paid despite his ability to pay. The ability or inability to pay
is not a material fact. In a trespass suit, it is unnecessary to mention that the defendant had
trespassed into the plaintiffs house at the incitement of the latters enemies or because the
defendant had a grudge against the plaintiff. It is also not material to state that the defendant
had committed similar acts of trespass on the property of others in the past or that he is a
powerful man in the village while the plaintiff is a helpless farmer.19

Udhav Singh v Madhav Rao Scindia,20 is a landmark case that explained what material facts
are. The facts in this case are as follows. The appellant, Udhav Singh filed an elction petition
on 26-4-1971, challenging the election of the respondent, Madhav Rao Scindia, to the Lok
Sabha on two primary grounds: (i) that the respondent and/or his agent had incurred expenses
exceeding the limit of Rs. 35,000 with respect to the election prescribed under Sec 77(3) of
the Representation of People Act, 1951 read with Rule 90 of the Conduct of Election Rules,
1961. He alleged that the respondent toured the constituency by helicopters and also used
minimum 18 motor vehicles, but did not show the expenses in that regard. (ii) that the
workers of the respondent, with his consent, had threatened the electors with bodily harm
and criminally intimated them not to vote for Shri Deorao Krishnarao Jadhav.
The second allegation shall be considered here. Five such cases of threats and intimidation
were mentioned. Para 11(iv) of the petition read That, on or before 22-2-71, Shri Mohan
Prasad Ojha, a Congress Worker of Village Umri (Tehsil Guna) was threatened at pistol point
by the workers of the respondent with his consent, Shri Shiv Pratap Singh and others of Umri
threatened not to vote and canvass in favour of the Congress candidate, Deorao Krishnarao
Jadhav and threatening with dire consequences.
Only one respondent was impleaded in the petition, who presented his written statement on
24-9-1971. The respondent denied the allegation of corrupt practices and that with his
consent, Shri Shiv Pratap Singh and others of Umri threatened one Madan Ojha not to vote.
He also said that Para 11(iv) did not have material particulars as to who the alleged workers
were, what their names were, their addresses and so on and thus it cannot be enquired into.
The allegation is baseless and vague. It is unclear as to when, where and in whose presence
18

Supra note 4 at 30.

Supra note 4 at 31.
20
Udhav Singh v Madhav Rao Scindia, AIR 1976 SC 744.
19

PG. 8

the respondent allegedly consented. The respondent then submitted an application on 3-81972 alleging that though the election-petitioner alleged in Para 11(iv) of the petition about
the commission of a corrupt practice by Shri Shiv Pratap Singh as per Sec 123(2) of the Act,
he did not join him as a respondent, and as such his petition should be dismissed under Sec
86 on grounds of non-compliance with the mandate of Sec 82(b). The petitioner was notified
about this application and he filed a reply on 28-8-1972 saying that the allegation in Para
11(iv) was wrongly interpreted by the respondent and that the objection as to non-joinder of
necessary party not having been taken by the respondent at the earliest, should be deemed to
have been waived by him. The respondent said in his rejoinder that he had correctly produced
Para 11(iv) and that the original petition was tampered with to erase the defect in it. The trial
judge held that Para 11(iv) framed a charge against Shiv Pratap Singh and his non joinder as a
respondent was fatal to the petition and thus it could be dismissed under Sec 86. The
petitioner appealed against this.
The necessary part of Sec 82 reads: Parties to the petition- A petitioner shall join as
respondent to his petition- (a)... (b) any other candidate against whom allegations of any
corrupt practice are made in the petition.
Sec 82(b), specifically obligates an election-petitioner to join a candidate who is charged with
corrupt practices, as a respondent to his petition. If this mandate is not followed, Sec 86
directs the High Court in clear terms to dismiss the petition. The respondent cannot by any
means waive these provisions.
The appellant says that even if Para 11(iv) is read to mean that Shiv Pratap Singh and others
of Umri threatened not to vote, the allegation is so short of material facts and particulars that
it does not constitute a charge of corrupt practice under Sec 123(2). Facts and particulars that
should have been pleaded as per Sec 83 but have not been pleaded are: place where the threat
was given, the nature of injury threatened, that Shiv Pratap Singh was a candidate and so on.
It was contended that the Court in determining whether Para 11(iv) amounted to a complete
cause of action should confine itself to that paragraph and not consider other documents
extraneous to the petition. At this point, the respondent contended that all material facts as
distinguished from material particulars, necessary to create a complete charge of corrupt
practice under Sec 123(2) against Shiv Pratap Singh were present in the petition, if it was
read as a whole. Sec 83 says: (1) an election petition (a) shall contain a concise statement of
the material facts on which the petitioner relies; (b) shall set forth full particulars of any
PG. 9

corrupt practice that the petitioner alleges, including as a full a statement as possible of the
names of the parties alleged to have committed such corrupt practice and the date and place
of the commission of each such practice and (c)..
The Court drew an interesting analogy between this section and the C.P.C. and said there is a
difference between material facts and material particulars. Sec 83 (1) (a) corresponds to
Order 6, Rule 2, while Sec 83 (1) (b) corresponds to Order 6, Rules 4 and 6 of the Code. The
distinction between the two is significant as their deficiency in pleading entails different
consequences. Even if a single material fact is not pleaded, cause of action is incomplete and
the charge can be struck off under Order 6, Rule 16, C.P.C. The Court explained that
material facts are all the primary facts which a party at a trial must prove to establish the
existence of a cause of action or his defence. In the instance of a charge of corrupt practice
material facts would be all the basic facts constituting the essentials of the particular corrupt
practice alleged, which the petitioner is compelled to substantiate in order to succeed on that
charge. In an election petition, whether a particular fact is material or not, and as such
required to be pleaded, is a question which depends on the nature of charge made, the ground
relied on and the circumstances of the case.21 Thus all the facts that constitute a complete
cause of action are material facts which must be pleaded and failure to plead even a single
such fact would be against Sec 83(1)(a).
On the contrary, particulars are the details of the case set up by the party. Material
particulars under Sec 83(1)(b) would thus mean all the details which are required to enlarge
an refine the material facts already pleaded in the petition as per Sec 83 (1)(a). Particulars are
meant to make a picture already drawn, more detailed and informative.22
Keeping this distinction in mind, the Court went on to see whether Para 11(iv) had all
material facts constituting a complete charge of corrupt practice within the meaning of Sec
123(2) against Shiv Pratap Singh. In short, the corrupt practice of "undue influence" as
defined in Sec 123 (1) is "direct or indirect interference or attempt to interfere on the part of
the candidate or his agent, or of any other person with the consent of the candidate or his
election agent with the free exercise of any electoral right. By means of illustration Subclause (1) of Clause (a) of the Proviso shows that if a person who threatens any candidate or
elector, or any person in whom a candidate or an elector is interested, with injury of any kind
21
22

Udhav Singh v. Madhav Rao Scindia, AIR 1976 SC 744.

Udhav Singh v. Madhav Rao Scindia, AIR 1976 SC 744.
PG. 10

shall be deemed to interfere with the free exercise of the electoral right of such candidate or
elector within the meaning of Sub-section (2).
The particular corrupt practice alleged in Para 11(iv) is of the category mentioned in the
aforesaid proviso. A reading of the Para in its entirety will indicate that it is pleaded that Shiv
Pratap Singh and others of Umri had threatened Mohan Ojha with bodily injury not to vote
for Shri Jadhav, that the threatener Shiv Pratap Singh was an election worker of the
respondent who threatened the elector, with the respondents consent. Para 11(iv) read with
Para 10 of the petition, shows that this threatener was none else but "Shri Shiv Pratap Singh
MLA, s/o Shri Birjendra Singh, r/o Umri House,Guna", who "during the election of the
respondent acted as his agent." Thus all the "material facts" constituting a complete charge of
corrupt practice under Sec 123(2) against Shri Shiv Pratap Singh were stated in the petition.
Only the place and the exact time of giving the threat were not mentioned. But these were, at
best, only material particulars, and not "material facts". Similarly, further and better
particulars of the address etc. of Shri Shiv Pratap Singh would be particulars.
Therefore, Para 11(iv) of the petition constituted a complete charge of corrupt practice against
a candidate, Shri Shiv Pratap Singh and consequently as per of Sec 82 (b) it was mandatory
for the petitioner to implead him, also, as a respondent. Not having done so, would lead to the
dismissal of his petition under Sec 86.
This case shows that all material facts must be pleaded and failure to do so would defeat the
suit. All such facts are to be read together to disclose the cause of action. The Court made a
crucial distinction between material facts and material particulars. Particulars though helpful
are not the most essential for a pleading. However much depends on the facts and
circumstances of the case. In certain cases, as will be seen later, particulars may be needed to
make the suit clear and complete.

Facts that are not material at the present stage of action, though they may become material at
a later step, should not be mentioned in the pleadings. There is no need to anticipate the
objections of the opposite party and to mention what one would have to state in reply to it. A
plaintiff is not required to state the facts in the pleadings based on which he could meet the
defence or defeat the claim of the defendants. For instance, in a suit for libel, it would be
improper if the plaintiff were to allege in his plaint that the defendant will contend that the
PG. 11

words are part of fair and correct report of judicial proceedings, however it is not so in
reality.23 In a suit for trespass the plaintiff is not expected to state in the plaint that the
defendant would claim that he entered the plaintiffs area under colour of a sale-deed alleged
to have been executed by the plaintiff, but that the deed was not registered.24

B.

ONLY MATERIAL FACTS SHOULD BE STATED, NOT THE EVIDENCE BY

WHICH THEY ARE TO BE PROVED

Another fundamental rule of pleading is that the pleading should contain a statement of the
material facts but not the evidence by which they are to be proved. Even though evidence
also consists of facts, there is a system of nomenclature to differentiate the two. The material
facts on which the party relies are facta probanda, i.e., the facts to be proved and these must
be mentioned in the pleadings. The evidence or facts by which these material facts are to be
established are facta probantia, and these should not be stated in the pleadings. They are not
facts in question, but are merely relevant facts which will be shown in the trial to establish the
facts in issue.25 The distinction is seen in the very rule itself. In very few cases the two
categories of facts cannot be differentiated. For instance, in cases of custom grounded on
village administration paper, which is usually the basis of the custom and its sole proof, the
record has to be pleaded. However, generally the difference between the two is clear enough
and should be borne in mind.26
The parties need not plead the question of appreciation of evidence. It is the duty of the court
to check whether the documents produced by the parties establish the facts in dispute. A clear
example may be seen in an action against an insurance company, on a life insurance policy,
say of X, where one of the conditions was that it would be void if the insured died by his own
hand. If the defendant company wants to rely on that ground then it should only plead that X
committed suicide. It should not mention in the written statement that X had been in
melancholy for weeks, had purchased a pistol and shot himself with that and a letter stating
23

Supra note 4 at 36.

Supra note 4 at 36.
25
Supra note 4 at 40.
26
Supra note 4 at 40.
24

PG. 12

that he intended to kill himself was found on him. These facts are merely facta probantia by
which the facta probandum i.e., suicide has to be established.27
In R.M.Seshadri v. G.Vasantha Pai,28 the facts were as follows. In elections to the Madras
Legislative Council from the Madras district Graduates Constituency, the appellant Seshadri
was declared elected by a majority of 255 votes than his nearest rival Vasantha Pai. Vasantha
Pai filed an election petition to set aside Seshadris election on the ground that he had utilised
cars which had been hired or obtained for the transportation of voters to the polling booths
which were around 73 in the constituency. The judge held in favour of Pai. Seshadri appealed
against it.

In the election petition it was alleged that numerous motor cars were hired or brought from
different sources for conveying the voters to the polling booths. These were sometimes
occupied by people who had badges on them that bore the name of Seshadri and were at
times received at the polling booths by persons who had similar badges. This leads to an
inference that the vehicles were used for the transportation of voters by the contesting
candidate Seshadri. This conduct would be equal to a corrupt practice under section 123(5) of
the Representation of People Act. Seshadri contended that the plea was vague and not clear
enough to give him notice of the charge against him that he had to meet, that such an
allegation of corruption is of the nature of a criminal charge and should thus be established by
the petitioner himself beyond all reasonable doubt, and that the judge improved the pleading
and the evidence by calling certain witnesses and considering documents which he had
procured on his own behalf.

The petitioner alleged that the Swatantra Party and its agents conveyed voters to and from the
polling booths in some cars hired or procured from M/s. Kumaraswamy Automobiles and
T.S.Narayanan, Authorised Tourist Taxi Operators. The petitioner also said that the detailed
use of the cars and particulars of the user were given in a schedule attached to the petition.
Seshadri emphasised on the fact that the plea did not mention as to who hired the vehicles or
cause them to be procured and without sufficient and precise particulars he could not answer
the allegations of the petitioner. The Court looked into the tabulated statement of evidence
27

S.Paul and A. Srivastava, Mulla The Civil Procedure Code (16th edn., New Delhi: Lexis Nexis, 2002)
at 1772.
28
R.M.Seshadri v. G.Vasantha Pai, AIR 1969 SC 692.
PG. 13

regarding the use of cars and agreed with the judgment of the High Court. The plea
mentioned four names. Seshadri said the connection between them and him or with the voters
or with the cars was not established.

The Court before examining the evidence showed its relevance to the pleas raised in the case.
The essence of the pleading was that cars were hired or procured for the conveyance of
voters, violating the prohibition contained in the election law. The names and locations of the
booths with the particulars of the cars and persons primarily connected with cars at the booths
had been mentioned. The drivers of the cars or the voters were not examined. However it was
clearly pleaded and proved that the cars were actually used. It was also specifically pleaded
that Seshadri was in fact connected with the use of cars. The Court said that rest were pieces
of evidence that did not have to be pleaded and that plea could be corroborated by proof to
show the source from where vehicles were brought, who hired or procured them and so on.
This is what happened in the case. The judge after concluding that many cars were used for
conveying voters to booths, further considered who hired them. Facts were provided that
implied that Krishnaswamy had hired the cars and that he was intimately connected with
Seshadri.

Thus the Court held that Pais plea was cogent enough to show the link between Seshadri and
the hiring of cars. The missing bits were supplied by other circumstantial evidence, like
showing that the only person who had hired cars was closely related to Seshadri and thus the
cars were used for the latters benefit. There was no need for Pai to have pleaded his evidence
in his behalf as his plea was sufficient by stating the number of the cars, naming the polling
booths and specifically mentioning that it was Seshadri who had procured cars for the
conveyance of voters. Rest were evidentiary matter. The Court ordered for fresh elections in
the Constituency.

This case clearly shows that all that is needed in a pleading is the material facts and not the
evidence that would be used to establish them. Mere stating of allegations would serve the
purpose of pleading, i.e. to make the other party aware of the charges it has to meet. A party is
not supposed to inform its opponent the matter it would utilise to prove such allegations.

PG. 14

In a suit for damages resulting from the defendants wrongful act, the plaint should not
contain facts proving the link between the damage caused and the wrongful act. What should
be alleged is the wrongful act, that the defendant caused it, and that the plaintiff suffered
damage subsequently.29 A common way of pleading evidence is that of setting up previous
admissions of the opposite party. Admissions are reliable pieces of evidence, nevertheless
they should not be stated in the pleadings. Even prior statements of the party pleading,
supporting the allegations about material facts are frequently seen in pleadings. For instance
in an action for damages for assault, it is usually alleged that the plaintiff reported the fact in
a police station, or had a filed a criminal complaint against the defendant the same day.30
In a suit for money lent, the defendant often pleads that the plaintiff himself is indebted and is
not in a situation to lend money to others, or that the defendant is himself a rich man who did
not have any necessity to borrow money from plaintiff. All these would amount to
circumstantial evidence and should not be pleaded. 31 In case where the plaintiff claims
damages for having been bitten by the defendants dog, he should plead that the defendant
was aware about the ferocious nature of the dog. He need not allege previous instances in
which the dog had bitten others in the defendants premises or that another person had
warned the defendant of the dogs nature. This would only be evidence of knowledge.32

C.

EVERY PLEADING SHALL STATE FACTS AND NOT LAW

Another fundamental rule of pleading says that neither provisions of law nor conclusions of
law should be stated in the pleadings. Pleadings should ought to be limited to facts only and it
is for the court to apply the suitable law and draw such inferences from those facts as are
permissible under the law, of which he is obligated to take judicial notice. 33 A judge is
supposed to apply the correct law even if the party has made a mistake with respect to the law
applicable to those facts. When a plaintiff asserts a right in himself but does not reveal the
facts on which his claim is based, or merely asserts that the defendant is indebted to him,
without outlining the facts which give rise to such indebtedness, his pleading is bad. Whereas
29

Supra note 4 at 41.

Supra note 4 at 42.
31
Supra note 4 at 42.
32
Supra note 4 at 44.
33
Supra note 4 at 22.
30

PG. 15

it is not a fatal error if he does not specify in the plaint the provision under which he files the
suit. Therefore merely because he mentioned the wrong provision would not prevent the court
from granting him relief under the correct one. 34 If the substance if the section is revealed in
the pleadings, omission to specifically plead that particular section is not material.
In Kedar Lall Seal v. Hari Lall Seal,35 the facts were as follows. Tarak Lall and his two
brothers Kedar Lall and Naku Lall executed a mortgage on 12 June 1936 in favour of Gyarsi
for a consideration of Rs. 80,000. The mortgagee sued in 1938 and obtained a final decree for
sale on 22 December, 1939. In execution the mortgage proceeded against the property of the
only who was Taraks son. The court passed an order sanctioning the sale of a portion of the
mortgaged property, 20 Round Tank Lane, of which the plaintiff was the exclusive owner.
After all transactions (conveyance, reconveyance, resistance of Gyarsis claim and so on) and
deduction of his one third share, the plaintiff claims a sum total of Rs. 40,253-11-10 against
each defendant amongst other reliefs. He based his claim that each of the three mortgagors
was equally liable to contribute towards the discharge of the mortgage debt. The defendants
though did not deny their liability to contribute, however contested the ground on which it
was to be calculated. They pleaded that they had entered into a special agreement between
Tarak Lall and themselves whereby their respective liabilities as among themselves would be
proportionate to the advantage obtained by each. Out of Rs. 80,000 only Rs. 13,259.2-4 was
used to clear prior liabilities of the defendants.

The High Court held that this agreement was not proved. The apex court said that though the
solution that each should pay in proportion with the benefits received seems equitable, there
were certain statutory provisions which must be considered first. The plaintiff-respondent
contended that section 43 of the Indian Contract Act would be applicable which says that
each of the two or more joint promisors may compel every other joint promisor to contribute
equally with himself to the performance of a promise, unless a contrary intention appears
from the contract. The court agreed with the plaintiffs contention that the contract here
referred to the main contract between the promisor and the promise and since there was no
such contract in the given case, the section would apply. The court however said that there
would not be a simple application of this provision because there were other laws that needed
consideration. It observed that since it was a case of mortgage, the Transfer of Property Act
34
35

Supra note 4 at 22.

Kedar Lall Seal v. Hari Lall Seal, AIR 1952 SC 47.
PG. 16

should be referred to. The court looked into Sec 82 and Sec 92 of this Act which deal with a
right of contribution and subrogation respectively. These sections contest the rule of
beneficial distribution of liability. So the equitable solution should be ruled out as these issues
have been dealt under statutes.

The defendant-appellant contended that the plaintiffs could not rely on Sec 82 because that
was not their case and they never brought up the point in the high court. The Court rejected
this and said the facts stated by the plaintiff show that he is entitled to contribution. Here the
Court applied the principle that a pleading need not state the law applicable in a given case.
The Court observed that the manner of calculation is a matter of law and it is for the judges to
apply the law to the facts and give the plaintiff such relief as in essential in the case. It also
said that though the plaintiff had not used the term subrogation, in substance the relief he
had asked for is one which a subrogee would get under the Transfer of Property Act. Merely
because his plaint was inartistically constructed, the claim would not be thrown out. Thus the
Court held that the plaintiff had remedy under Sec 92 read with Sec 82 of the Transfer of
Property Act.

In the above case the Court applied provisions of law that were not mentioned in the
pleading. It looked into the case facts and found that the Transfer of Property Act would be
applicable. This shows that the court can grant relief under a provision that is not mentioned
in the pleading. If the substance of the pleading shows that a particular law is attracted, then
the courts will use the law.

In the absence of material facts a plaint shall be bad, despite allegations of inferences of law
that the plaintiff derives from those facts, for instance, even if it is alleged that the specific act
complained of, was done unlawfully or without any justification, it would not lead to any
conclusion unless facts from which the plaintiff draws such an inference are stated. 36 It would
not be sufficient to claim that a Muslim man gifted his property to the plaintiff. The latter
should state how the gift was made, how it was accepted and how possession was delivered,
as these facts constitute a valid gift under Muhammedan law. Merely alleging the gift would
amount to a conclusion of law from facts which are not mentioned.37
36
37

Supra note 4 at 24.

Supra note 4 at 24
PG. 17

Though the strict rule of pleading is that legal inferences need not be pleaded, still at times, in
addition to the facts pleaded, the inference is also stated, for the sake of clarity or
convenience. This has been tolerated even in England, as such pleading is, at the most,
unnecessary and does not affect the other party. For instance, in a case of hypothecation bond,
the defendants pleading that the bond was not attested by two witnesses and thus is not a
mortgage, the latter pleading may strictly speaking, be against rules, yet it may be tolerated.38
The principle against pleading law is limited only to that law of which a court is bound to
take judicial notice. Foreign law, particular customs, usages of trade should be pleaded like
any other fact, as the court is not bound to take judicial notice of the same. For instance if a
party depends on a usage which differs from the Contract Act or any general law, he should
specifically plead it with particulars about its incidents and details.39 The rule against pleading
of law should also not be seen as excluding legal pleas to a suit, or pleas defeating the legal
right claimed by the opposite party. For instance, if the plaintiff claims he is an heir based on
a certain relationship, the defendant may take a legal plea that the former is not an heir, even
if the alleged relationship may be correct.40
In some cases, the rule can be slightly relaxed. Law does not only mean a provision of a
legislative enactment but also includes an order, bye-law, rule, regulation, or notification
having the force of law. Given the frequency of amendments, it may be convenient and useful
for both pleaders and judges, if the pleadings briefly state the latest position of law. Such a
reference need not be considered as violation of the rules of pleadings.41

D.

FACTS MUST BE STATED IN A CONCISE FORM

Another fundamental rule of pleading is that the material facts should be stated in a concise
form but with precision and certainty. Order 6, Rule 2(2) states that, when necessary the
pleading shall be divided into paragraphs and numbered consecutively. Order 6, Rule 2(3)
states that, dates, sums and numbers shall be expressed both in figures and words. This would
38

Supra note 4 at 26.

Supra note 4 at 27.
40
Supra note 4 at 27.
41
Supra note 4 at 27.
39

PG. 18

ensure that parties do not later claim that wrong dates or numbers had been stated due to
accidental or typographical error.42 Though pleadings should be concise, they should not be
vague or obscure. They need to be precise. Mere verbosity because of lengthy facts would not
lead to the striking out of pleadings if the facts stated are all material. All facts are to be stated
precisely but briefly. An instance of bad pleading would be, The defendant does not know
the plaintiff and has never in his life been to the plaintiffs house nor borrowed money from
him. This is neither concise nor precise. A proper pleading would be, The defendant did not
borrow the money alleged in the plaint or any money from the plaintiff. 43 A party should
state its case with brevity which can be done by eliminating all unnecessary facts, omitting all
unnecessary details while alleging material facts and by giving attention to the language used
in stating material facts.44

E.

ORDER 6, RULE 3

It states that when applicable, forms in Appendix A should be used and when not applicable,
forms of the like character should be used. This rule implies that the model forms of
pleadings given in Appendix A should be followed with essential and required variations.
They are prescribed forms pleadings but in reality, they may require modifications depending
on the particular facts in a case.

CRITICAL ANALYSIS
This project has examined various provisions of the C.P.C which lay down the law with
respect to rules of pleadings. Order 6 deals with the rules regarding pleading generally.
Pleadings are meant to make the other party aware of the case it has to meet. It helps the
Court determine the real issues between parties. Order 6, Rule 2 states the most basic rules of
pleading. Though all other rules are necessary too and should be complied with. All material
facts taken together constitute the cause of action and thus all such facts should be stated.
Only material facts are to be pleaded and not unnecessary facts. It may be seen that Rules 10,
42

Supra note 4 at 47.

Supra note 4 at 47.
44
Supra note 4 at 47.
43

PG. 19

11 and 12 of Order 6 are practical applications of the fundamental rule that only facts and not
evidence should be pleaded.

Pleadings should not contain evidence as they are to be used before the court to establish the
material facts. Also, it is the courts duty to apply the suitable law. Particulars with respect to
fraud, misrepresentation are required and not regarding the state of mind of a person.
Performance of condition precedent is presumed. So the party challenging it should
specifically state so. Pleadings need to be signed and verified.
In conclusion to the analysis of case law on several points that arise in the context of
principle of pleadings, it may be said that the courts have sought to decide cases and develop
jurisprudence on this area keeping in mind the basic objective of the provisions. An important
consideration is to see that justice is done. Courts have said that suits should not fail on mere
technicalities. However this does not imply that the rules can be overlooked. It is necessary to
follow the essential rules. Merely because an unnecessary fact is stated, the plaint would not
be dismissed. But if it fails to state the material facts as to disclose the cause of action itself
then the plaint is bad.
Pleadings are significant in civil suits. By defining what the issues are, they reduce the time
and expenses involved. The rules and format framed by the authors of the Code and other
enactments are a guide and it is the duty of the lawyer, the court and the litigant to see that
pleadings are properly constructed. Though the court need not strictly emphasise on proper
and precise pleadings, given the existence of factors like poverty, illiteracy, ignorance and so
on, nevertheless in the absence of pleading which the court and opposite party can
comprehend, issues cannot be raised or proved by evidence nor relief granted. 45 Therefore
pleadings should be responsibly drafted.

45

Supra note 2 at 1025.

PG. 20

INDEX OF AUTHORITIES

CASES
Kedar Lall Seal v. Hari Lall Seal, AIR 1952 SC 47.--------------------------------------------------R.M.Seshadri v. G.Vasantha Pai, AIR 1969 SC 692.--------------------------------------------------Udhav Singh v Madhav Rao Scindia, AIR 1976 SC 744-----------------------------------------------TREATISES
A.B. Majumdar, Majumdar On Plaints (Calcutta: Eastern Law House, 1995) at 1.----------------P.C. Mogha, The Law Of Pleadings In India With Precedents (M.C. Agarwal and G.C. Mogha
ed., 17th edn., Kolkota: Eastern Law House, 2006) at 5.---------------------------------------------S. Sarkar and V.R. Manohar, Sarkars The Law Of Civil Procedure (11th edn., Nagpur:
Wadhwa And Company, 2006) at 1022.----------------------------------------------------------------S.Paul and A. Srivastava, Mulla The Civil Procedure Code (16th edn., New Delhi: Lexis
Nexis, 2002) at 1772.-----------------------------------------------------------------------------------U.M. Pandit and S.M. Amin, Principles And Precedents Of Pleadings And Conveyancing (2nd
edn., Bombay: N.M. Tripathi Pvt. Ltd., 1994) at 1.---------------------------------------------------

PG. 21