PLEADINGS
ORDER 6 deals with pleadings in general
According to Order 6 Rule 1 “Pleading” shall mean plaint or written statement.
Plaint is the plaintiff's pleading in which the plaintiff sets out his cause of action with all necessary particulars.
Written Statement is the defendant's pleading in which the defendant deals with every material fact alleged by the plaintiff in the plaint and also state any new facts which are in his favour, adding such legal objections as he wishes to take to the claim.
Where the defendant, in his written statement, pleads a set-off, the plaintiff may file his written statement thereto.
Again, in some cases, the defendant after filing his written statement may file an additional written statement with the leave of the court.
The whole object of pleadings is to ascertain the real disputes between the parties, to narrow down the area of conflict and to see where the two sides differ, to prevent one party from taking the other by surprise, to diminish expense and delay and to prevent miscarriage of justice.
In Ganesh Trading Co. v. Moji Ram[(1978) 2 SCC 91: IR 1978 SC 484.]the Supreme Court o served, "Provisions relating to pleadings in civil cases are meant to give to each sie intimation of the case of the other so that it may be met to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take."
In Virendra Kashinath v. Vinayak N. Joshi (1999)1SCC 47: AIR 1999 SC 162 the Supreme Court stated, "The object of the rule is two fold. First is to afford the other side intimation regarding the particular facts of his case so that they may be met by the other side.
Second is to enable the court to determine what is really the issue between the parties."
Sub-rule (1) of Rule 2 lays down the fundamental principles of pleadings. It reads as under: Every pleading shall contain and contain only a statement in a concise form of the material
facts on which the party pleading relies for his claim or defence as the case may be, but notthe evidence by which they are to be proved.
On analysis, the following general principles emerge:
1. Pleadings should state facts and not law;
2. The facts stated should be material facts;
3. Pleadings should to state the evidence; and
4. The facts should be stated in a concise form.
FACTS AND NOT LAW
The first principle of pleadings is that they should state only facts and not law. It is the duty of the parties to state only the facts on which they rely upon for their claims. It is for the court to apply the law to the facts pleaded. In this regard it was held in case of Gouri Dutt Ganesh Lall Firm v. Madho Prasad, AIR 1943 PC 147: 209 IC 192.] that the law of pleading maybe tersely summarized in four words, "Plead facts not law."
Thus, existence of a custom or usage is a question of fact which must be specifically pleaded. Similarly, intention is also a question of fact and it must be pleaded.
Again, waiver or negligence is a plea of fact and must be pleaded in the pleading.
But a pleading about maintainability of the suit raises a question of law and need not pleaded.
Likewise, when Hindu sons are sued for a debt incurred by their deceased father, it is not necessary to formulate in the plaint the Hind Law as to the pious obligation of Hindu sons to pay their father's debt.
A construction or interpretation of a document, being a poi t of law, need not be pleaded.
This is based on the principle that a judge is bound to apply correct law even if incorrect law is pleaded by a party.
A mixed question of law and fact, however, should be specifically pleaded.
MATERIAL FACTS
The second principle of pleadings is that they should contain a statement of material facts and material facts only. Though the expression "material facts" has not been defined in the Code, it means all facts upon which the plaintiff's cause of action or the defendant's defence depends, or, in other words, all those facts which must be proved in order to establish the plaintiff's right to relief claimed in the plaint or the defendant's defence in the written statement.
Udhav Singh v. Madhav Rao Scindia [(1977) 1 SCC 51: AIR 1976 SC 744
the Supreme Court has defined the expression "material facts" in the following words: "All the primary facts which must be prove at the trial by a party to establish the existence of a cause of action or his defence are material facts." In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends.
Virender Nath v. Satpal Singh
The distinction between "material facts" and "particulars" cannot be overlooked. Material facts are primary and basicfacts which must be pleaded by the party in support of the case set up by it. Failure to state material facts, hence, will entail dismissal of the suit.
Particulars, on the other hand, are the details of the case. They amplify, refine an embellish material facts. They give the finish in touch to the basic contours of a picture already drawn so as to make it full, more detailed and more informative. Thus, the distinction between "material facts" and "particulars" is one of degree.
Whether particular fact is or is not a material fact which is required to be pleaded by a party depends on the facts and circumstances of each case.
All material facts must appear in the pleadings and the necessary particulars' must be there so as to enable the opposite party to know the case he is required to meet and to put him on his guard.
The rule is not of mere technicality and, therefore, if a party omits to state material facts, it would mean that the plea has not been raised at all and the court will not allow the party to lead evidence of that fact at the trial, unless the court gives that party leave to amend his pleadings.
The reason is that non-mention of material facts amounts to non-pleading and, therefore, no cause of action arises in favour of such party.
FACTS AND NOT EVIDENCE
The third principle of pleadings is that the evidence of facts, as distinguished from the facts them selves, need not be pleaded.
In other words, the pleadings should contain a statement of material facts on which the party relies but not the evidence by which those facts are to be proved.
The facts are of two types:
Factaprobanda—the facts required to be proved (material facts); and
Factaprobantia—the facts by means of which they are to be proved (particulars or evidence).
The pleadings should contain only factaprobandaand not factaprobantia
In Virender Nath v. Satpal Singh (2007) 3 SCC 617: AIR 2007 SC 581
after referring the leading English and Indian decisions on the point, the Supreme Court observed: "There is distinction between facta probanda (the facts required to be proved i.e. material facts) and facta probantia (the facts by eans of which they are proved i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia.
The material facts on which the party relies for his claim are called facta probanda and they must be statedin the pleadings.
But the fact or facts by me ns of which facta probanda(material facts) are proved and which are in the nature of facta probantia(particulars or evid nce) need not be set out in the pleadings.
They are not 'fact in issue', but only relevant factsrequired to be proved at the trial in order to establish the fact in issue."
Borrodailev. Hunter [(184 ) 5 M&G639.
A was insured with an insurance company. One of the terms of the policy was that the policy would be void if the insured committed suicide. A actually committed suicide by shooting himself with a pistol and thereupon an action was brought against the company on the policy.
The company should only plead that A committed suicide. This is fact probanda.
Other facts, that A was melancholy for weeks, that he bought a pist l a day before his death, shot himself with the said pistol and that a letter was found with him addressed to his wife stating that he intended to kill himself—all these facts are facta probantiaand they need not be pleaded.
Similarly, it is wrong to set out admission made by the opposite party in the pleading, as that fact is only evidence.
Virender Nath v. Satpal Singh (2007) 3 SCC 617: AIR 2007 SC 581; RM. Seshadri v. G. Vasantha Pai, supra
Thus, in an election petition the plea that cars were used by the successful candidate for the purpose of conveying voters contrary to the Act must be stated in the pleadings since it is a fact in issue (facta probanda). But the facts as to from where the cars were obtained, who hired them and used them for conveyance of voters are merely evidentiary facts (factaprobantia)and need not be stated in the pleadings.
CONCISE FORM
The fourth and the last general principle of pleadings is that the pleadings shuld be drafted with sufficient brevity and precision. The material facts should be stated precisely succinctly and coherently.
The importance of a specific pleading can be appreciated only if it is realised that the absence of a specific plea puts the defendant at a great dissave tag. He must know what case he has to meet. He cannot be kept guessing what the plaintiff wants to convey by a vague pleading. Therefore, the pleading must be precise, specific and unambiguous.
According to R.2(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
According to R.2(3) Dates, sums and numbers shall be expressed i a pleading in figures as well as in words.
According to R.3 (Forms of pleading) -- The forms in Appendix A when applicable, and where they are not applicable forms of the like character, nearly as may be, shall be used for all pleadings.
