FUNDAMENTAL RULES OF PLEADING

SUBMITTED TO: UNIVERSITY INSTITUTE OF LEGAL STUDIES,

PANJAB UNIVERSITY, IN PARTIAL FULFILLMENT OF
REQUIREMENTS FOR B.A. LL.B. (HONS.) – DRAFTING, PLEADING
AND CONVEYANCE

SUBMITTED TO: SUBMITTED BY:

Prof. HARMAN SHERGILL AASHINA GUPTA (3/17)

CLASS – B.A.LLB. (HONS.)

SEMESTER – 8

SECTION - A

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Available at:
https://1.bp.blogspot.com/LzueoAOasSs/Xang_YnYZiI/AAAAAAAAAgY/a3fyyuEYbkAckQNZdmQTQsNv5YDuku4swCLcBGAsYHQ/
s1600/pleading.webp.
 ACKNOWLEDGEMENT

I would like to express my special gratitude to my Prof. Harman who taught us how to draft
different petitions in this covid era. She despite being herself down with covid never fail to
take our lecture.

I am thankful to her that she gave me the golden opportunity to do an assignment in this
intriguing subject of Drafting and pleading which motivated me in doing a lot of research and
I learnt a lot of new things regarding drafting of pleadings. I am really thankful to her.

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Available at: https://futureofworking.com/wp-content/uploads/2020/04/teacher-appreciation-image-quote-
1.png.

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 CONTENTS

Sr. No. Topic Pg. No.

1. Introduction 4

2. Meaning of Pleadings 4-5

3. Function and object of pleading 5-6

4. Fundamental rules of pleading 6-11

5. Conclusion 12

6. Petition 13-16

7. Bibliography 17

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INTRODUCTION

Pleading is a very essential concept in any legal jurisprudence. It is the way by which parties
to a dispute tell their case to the court and to the adverse party. The term “plead” means to
request or to ask for something in a polite and humble manner. Such request can be made
orally or in written or in any other form that signifies a request being made by one before
another person or entity which is in a position to grant that request. The content of such
request is called pleading.
For instance, two kids A and B are fighting and A complaints to his teacher that B hit A and
injured him. Everything that A tells to his teacher as to where was the fight, at what time, for
what reason, etc. amounts to A’s pleadings. Further, when B is called to justify his actions,
everything that B says in his defence and/or puts any allegations or counterclaims against B
are A’s pleadings.3

MEANING OF PLEADING
In India there are only two pleading in a suit as defined under Order 6, rule 1 of the Code of
Civil Procedure, it says that pleading means “Plaint or Written Statement”. This definition is
not very clear in itself.
The plaint and written statement are defined as follows:
(a) Plaint: A statement of claims, called the “plaint” in which the plaintiff sets out his cause
of action with all necessary particulars; and
(b) Written Statement: A statement of defences, called the “written statement” which the
defendant deals with every material fact alleged by the Plaintiff in the plaint and also sets any
new facts which tells in his favour, adding such objection as he wishes to take to the claim.

Beside the plaint and the written statement, other pleadings that may be filed, may be
classified under two heads: (i) subsequent pleadings, and (ii) additional pleadings.
(i) Subsequent Pleadings: The only subsequent pleading which is filed as a matter of right,
without the leave of the court, is a written statement of a plaintiff by way of defence to a plea
set-off set up by a defendant in the written statement of his defences. No other pleading

3
Definition and fundamental rules of pleading under CPC, 1908, available at:
https://www.legalbites.in/definition-and-fundamental-rules-of-pleading-under-cpc-1908/ (Accessed on 5th June
2021 at 4.00 pm).

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subsequent to the written statement of a defendant other than that by way of defence to a plea
of set off can be presented except with the leave of the court and upon such terms as the court
may think proper. But the Court may at any time require a written statement or an additional
written statement from any of the parties and fix a time for presenting the same (O.8, r.9).
Any ground of defence which has arisen after the institution of the suit or the presentation of
the written statement, may be, raised by the plaintiff or the defendant as the case may be, in
his written statement (O.8, r.9). This is also a subsequent pleading. The subsequent pleading,
i.e., this written statement in some states is also termed as “replication”.

(ii) Additional Pleading: Although no pleading subsequent to the written statement of a

defendant other than by way of defence to a plea of set-off can be presented without the leave
of the court, yet the court may at any time require a written statement or additional written
statement from any of the parties, i.e., plaintiff or defendant or both (O.8, r.8). The additional
pleadings are not subsequent pleadings in the true sense of the term. They are pleading by
way of further and better statement of the nature of the claim or defence or further and better
particular of any matter or state in the pleadings.4

FUNCTION AND OBJECT OF PLEADING

The object of pleadings is to assist the Court and the parties to the dispute in its adjudication.
Its function is of multi-dimension, and is in various ways. Stable j., Pinston v. Loyds Bank
Ltd.5 has expressed the function of pleading in the following words:
“The function of a pleading is not simply for the benefit of the parties but also and perhaps
primarily for the assistance of a Court by defining with precision the area beyond which
without the leave of the court, and consequential amendment of pleading, conflict must not be
allow to extend”.
The following advantages flow from pleadings:
(i) It is a benefit to the parties to know exactly what are the matters left in dispute. They may
discover that they are fighting about nothing at all; e.g. when a plaintiff in an action of libel
finds that the defendant does not assert that the words are true, he is often willing to accept an
apology and costs, and so put an end to the action.

4
Pleading- What are fundamentals of pleading, available at: https://www.lawnn.com/pleadings-what-are-the-
fundamental-rules-of-pleading/ (Accessed on 6th June 2021 at 2.00 pm).
5
(1941) 2 K.B. 72.

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 (ii) It is also a boon to the parties to know precisely what facts they must prove at the trial;
otherwise, they may go to great trouble and expense in procuring evidence of facts which
their opponent does not dispute. On the other hand, if they assume that their opponent will
not raise such and such a point, they may be taken suddenly by surprise at the trial.
(iii) Moreover, it is necessary to ascertain the nature of the controversy in order to determine
the most appropriate mode of trial. It may turn out to be a pure point of law, which should be
decided by judge.
(iv) It is desirable to place on record the precise question raised in the action so that the
parties or their successor may not fight the same battle over and again.

FUNDAMENTAL RULES OF PLEADING

Four fundamental rules of pleading upon which Order 6 of the Code of Civil Procedure is
based are as under:
1. Every pleading must state facts and not law.
2. It must state all material facts and material facts only.
3. 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
4. It must state such facts concisely, but with precision and certainty. 6
Facts, not law Material facts only Only facts and no Facts concisely with
Evidence precision and certainty

Facts, not law:

The first fundamental rule of pleading is that 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.
Illustration: It will not be sufficient to state that Zenia 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
Mohammeddan Law. To allege that Zenia made a gift will be a conclusion of law from the
facts which are not to be state directly in the pleading.

6
C.K. Takwani, Civil Procedure with Limitation Act, 1963 190 (EBC, Lucknow, 8th edn., 2020).

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Secondly, 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.
Thirdly, 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 should go 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.
The fundamental rule of pleading is that a pleading shall affirmatively contain only a material
fact on which the party relies and it shall not contain facts which are only evidence by which
such material facts are to be proved.
In the case of Kedar Lal v. Hari Lal7, it was held that it is the duty of the parties to state
only the facts on which they rely upon their claims.
In the case of Gouri Dutt Ganesh Lall Firm v. Madho Prasad 8, it was held that the law of
pleading may be tersely summarized in four words; “Plead facts not law.”
In Union of India v. Sita Ram Jaiswal9, the Court held that a point of law which is required
to be substantiated by facts should be pleaded with necessary facts.

The rule that every pleading must state facts and not law or an interference of law has got
following exceptions:
(a) Foreign Laws: The court 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.
(b) 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.
(c) 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.

7
AIR 1952 SC 47.
8
AIR 1943 PC 147.
9
AIR 1970 SC 1818.

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(d) 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.10

(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.
Every pleading must state facts which are material at the present stage of the suit. The fact
which is essential to the Plaintiff’s cause of action or to the defendant’s defence which each
prove or fail to prove is material fact.
Now, the question that what facts are material, is not very easy to answer. However, 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.
For instance:
(1) 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.
(2) Where a plaintiff claims an alternative relief, he must plead facts entitling him, for such
relief.
(3)Where the question of age or time affects the right of the parties, the facts should be
specifically pleaded.
10
Supra note 4.

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(6)Where a plaintiff sues on the basis of a title he must state the nature of the deed from
which he has derived title.
(7)The plea that a woman claiming maintenance has lost her right due to continuous desertion
or living in adultery should be specifically raised.
The following are exception to this fundamental rule of pleading:
(a) Content of documents: Whenever the content 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......”
(b) 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. But the matter of
inducement should be reduced to the minimum need.11
In case of  Virender Nath v. Satpal Singh12, the Supreme Court held that:- “The phrase
‘material facts’ may be said to be those facts upon which a party relies for his claim or
defence. In other words, ‘material facts’ are facts upon which the plaintiff’s cause of action or
the defendant’s defence depends. What particulars could be said to be ‘material facts’ would
depend upon the fats of each case and no rule of universal application can be laid down. It is,
however, absolutely essential that all basic and primary facts which must be proved at the
trial by the party to establish the existence of a cause of action or defence are material facts
and must be stated in the pleading by as the party.” In the same case the Supreme Court also
said:- “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
defence. ‘Particulars’, on the other hand, are details in support of material facts pleaded by
the party. They amplify, refine and embellish 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.”

11
Supra note 3.
12
AIR 2007 SC 581.

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 (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 Probantia 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.13

(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.14
In Virendra Kashinath v. Vinayak N. Joshi 15, it was laid down that, “The words “in a
concise form” are definitely suggestive of the fact that brevity should be adhered to while
drafting pleadings. Of course, brevity should not be at the cost of excluding necessary facts,
but it does not mean niggling in the pleadings.”

A good pleader should bear in mind the following points in relation to a pleading:
13
Supra note 3.
14
Supra note 4 at 195.
15
AIR 1999 SC 162.

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(1) Describe the names and places accurately and spell them correctly and adopt the same
spelling throughout.
(2) 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 plaintiff or defendant, call in your pleading, “the plaintiff
Ram” or “the defendant-Hari” as the case may be.
(3) A lawyers 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, in
this case while drafting the pleading instead “the assured killed himself” or he committed
suicide,” plead that “the assured died of his own hand.”
(4) 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.
(5) 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.16

CONCLUSION
Pleadings are the backbone of legal profession. It is the foundation stone on which case of a
party stands. The case of a party must be set out in the pleadings. Pleadings do not only
define the issues between the parties for the final decision of the court at the trial, they
manifest and exert their importance throughout the whole process of the litigation. Pleadings
provide a guide for the proper mode of trial. They demonstrate upon which party the burden
of proof lies, and who has the right to open the case. They also determine the range of
admissible evidence which the parties should adduce at the trial.17

FUNDAMENTAL RULES OF PLEADING

16
Pleading: Its rules and amendments, available at: https://legaldesire.com/pleadings-rules-amendments
(Accessed on 6th June 2021 at 3.00 pm).
17
Supra note 16.

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FACTS, MATERIAL FACTS, NOT CONCISE FORM WITH

NOT LAW FACTS ONLY EVIDENCE PRECISION & CERTAINTY

FOREIGN
LAW MATTERS OF
INDUCEMENT
MIXED
QUESTION OF

LAW AND

FACTS

CONDITION
PRECEDENT CONTENTS OF
DOCUMENT
CUSTOMS
AND USAGES

PETITION FOR DISSOLUTION OF MARRIAGE

IN THE COURT OF THE PRINCIPAL JUDGE, FAMILY COURT, PATIALA

H.M.A Petition no. ___ of 2021

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Nobita Singh s/o Amar Singh r/o Patel Nagar, Patiala……................……………….Petitioner

Versus

Shizuka Kaur w/o Nobita Singh r/o Ram Nagar, Patiala……..…....…………Respondent no.1

Degisuki Kumar s/o Suraj Singh r/o Ram Nagar, Patiala……..….......………Respondent no.2

Petition for dissolution of marriage by a decree of divorce

under section 13 of the Hindu Marriage Act, 1955 (No. 25 of 1955).

The Petitioner prays as follow:

1. That a marriage was solemnized between the parties according to Hindu rites and
ceremonies after the commencement of the Hindu Marriage Act on 1-05-2016 at Patiala. The
said marriage is registered with the Registrar of marriage.
A certified copy of the relevant extract from the Hindu Marriage Register annexed as P1 is
filed herewith.
2. That the status and place of residence of the parties to the marriage before the marriage and
at the time of filing the petition were as follows:-
Husband Wife
Status Age Place of residence Status Age Place of
Residence
Before Unmarri 25 Patel Nagar, Unmarried 24 Bhagat Nagar,
Marriage ed Patiala Patiala
At time of Married 30 Patel Nagar, Married 29 Ram Nagar,
filing of Patiala Patiala
petition

3. That after the marriage both the parties lived together at Patel Nagar, Patiala and thereafter
a boy named Doreomon was born out of the wedlock on 02-08-2017.
4. That on 01-06-2021, the petitioner came home early from his business trip to surprise his
wife. It is further submitted that the petitioner saw the respondent no. 1 along with respondent
no.2 in a compromising position in their bedroom and after confronting the respondent no. 1,
she accepted being still sexually involved with respondent no.2.

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5. That the petitioner earlier became aware of the illicit relation between the respondent no. 1
and respondent no.2 from the tenants to whom certain rooms of the matrimonial house were
rented. It is further submitted that petitioner warned respondent no.2 that he should not come
to his house and not maintain any relation with his wife.
6. That the petitioner had scolded the respondent no. 1 and also appealed her to stop the
relationship. It is further submitted that mother of respondent had asked the petitioner to
forgive her daughter and told him that she would behave well in future but the respondent no.
1 did not amend the ways.
7. That on 04-06-2021, the respondent no. 1 left the matrimonial home and has been living
with respondent no.2 at Ram Nagar, Patiala.
8. That the petitioner has not in any manner been accessory to or connived at or condoned the
acts complained of.
9. That the petition is not presented in collusion with the respondent.
10. That there has not been any unnecessary or improper delay in filing this petition.
11. That there is no other legal ground why the relief should not be granted.
12. That there has not been any previous proceeding with regard to the marriage by or on
behalf of any party.
13. That the husband and the wife last resided together at Patel Nagar, Patiala within the
limits of the ordinary original civil jurisdiction of this Court and therefore this Hon’ble Court
has jurisdiction to try and entertain this petition.
PRAYER
In view of the above facts and circumstances, it is, therefore, most respectfully and humbly
prayed that this Hon’ble Court may be pleased to grant
(i) A decree of divorce under Section 13 of HMA in favour of petitioner.
(ii) Any other relief/order/Direction that this Hon’ble Court may deem fit in the interest of
justice and equity.
Sd.__________
Petitioner
Through Counsel
(Aashina)
Advocate
F-XXX-2021

VERIFICATION

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Verified that the contents of Para No. 1 to 7 of the plaint are true and correct to my personal
knowledge and the contents of Para No. 8 to 13 are believed to be true and correct on the
basis of legal advice received.
Place – Patiala
Dated - 10-06-2021 Sd. ___________
Petitioner

SELF ASSESSMENT
After completing my project, I learnt a lot of things especially rules need to be taken into
consideration when drafting a pleading. Moreover, while drafting petition for dissolution for
marriage I referred Punjab and Haryana court rules and got acknowledged that even the
adulterer could be made a party to the suit when husband is certain about it. Moreover, I am
thankful to Mam as drafting is the only subject in which I learnt something in this pandemic.

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BIBLIOGRAPHY
Primary sources
Code of civil procedure, 1908.
Secondary Sources
Takwani, C.K., Civil Procedure with Limitation Act, 1963, EBC (Lucknow), 8th edn., 2020.

Notes by Harman Mam

Websites
https://indiankanoon.org/
http://www.supremecourtcases.com
https://www.legalbites.in
https://legaldesire.com/
https://www.lawnn.com

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