Pleadings: To "Plead" Or Not To "Plead"

Avnish Mittal, Advocate
Punjab & Haryana High Court, Chandigarh
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Date : 26/08/2021 Location : House No. 115, Sector 16-A, Chandigarh
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Pleadings: To "Plead" Or Not To "Plead"

It is often believed that the "The first draft is just you telling yourself the story." When you draft that story into a document for the purpose of litigation then the same forms a part of the pleadings.

Pleadings, is a written presentation by a litigant in a lawsuit setting forth the facts upon which he claims legal relief or challenges the claims of his opponent. A pleading in litigation includes facts, assertions, claims and counterclaims but not the evidence by which the litigant intends to prove his case. It forms an important part in the resolution of dispute between parties as it contains facts which forms the basis on which the rights and liabilities of the party to the suit are ascertained. The pleadings, therefore, serve the primary purpose of acquainting the court and the parties with the facts and issues in dispute.

After both the plaintiff and the defendant have made their initial statements, there may be further pleadings, such as a reply, replications, a rejoinder, and even a surrejoinder. It is open to either party to accept or deny out his opponent's pleading, or parts thereof, on the grounds that it disclosed no cause of action or defense or on certain other grounds. If a factual allegation is not refuted or denied, it is assumed to be admitted and can be used so during the course of trial.

The provisions with regards to Pleadings are contained in Order VI of the Code of Civil Procedure, 1908 (hereinafter, the CPC). Though the term pleading is not defined in the code, but under Order VI are contained the general guidelines about it and what it must contain. Pleadings can also be regarded as the soul of the litigation and failure to assert and plead the same properly may result in fatality of the Lis.

Rule 1 Order VI of Code of Civil Procedure 1908 lays down :-

"Pleading" :- "Pleading" shall mean plaint or written statement.

Though the said rule only mentions plaint and written statement as a part of the pleadings but any replication and rejoinders etc. filed by the parties are also included in the pleadings of the parties.

In Ajmel Singh v. Kulwinder Singh 2010(3) PLR 192, It was held that :-

"No doubt, the pleadings are the plaint and written statement but in an application filed by the defendants before the trial Court under Section 148A of the Civil Procedure Code, at the time of lodging caveat application along with an affidavit of the General Power of Attorney of both the respondents, it has been admitted that the plaintiff is a tenant over the shop in dispute without stating that his tenancy has been terminated or he has been evicted by any order of the competent Court of law. Therefore, in my view, at this stage of interim injunction, the affidavit filed in the Court, though, with the caveat application cannot be ignored as it contains an admission on the part of the defendants that plaintiff is in possession as a tenant. It is well settled that admission is the best mode of proof. It is also well settled that once a tenant always a tenant until and unless the tenancy is terminated and the tenant is evicted from the premises by an order of competent Court of law. In these circumstances, I find force in the arguments raised by learned counsel for the petitioner that the learned Court below should not have directed the parties to maintain status quo rather the plaintiff should have granted interim injunction to restrain the defendants from interfering in his possession especially when there is an allegation that they had already tried to dispossess them forcibly as the defendants had come to the premises in question along with their henchmen on 10.12.2005 and had removed certain articles belonging to the plaintiff lying in his almirah.

7. In view of the above discussion, the present revision petition is allowed..."

Despite the fact that pleadings must contain all the assertions and cause of action Rule 2 of Order VI of the CPC clearly states that pleadings must state only material facts in concise form and not the evidence. Pleadings of those material facts helps the plaintiff to define and assert his cause of action and at the same time helps the defendant to establish his defense in a civil suit.

Order VI Rule 4 of the CPC further lays down that wherever any party relies on any misrepresentation, fraud, breach of trust, willful default or undue influence then all such particulars must clearly be stated in the pleadings. Thus, in the absence of any pleadings to the said averments, no amount of evidence can prove the same.

Once the pleadings of the parties crystalize, then on the basis of assertions and denials in the pleadings, the court frames issues on the same. The party who asserts the claim has the onus to prove the same on the basis of evidence and on the basis of evidence the court grants the relief in the litigation by either decreeing the claim in the suit in whole or in part or by dismissing the suit of the plaintiff.

It is also the generic rule of civil law that no amount of evidence can be looked into without there being a specific pleading about the same.

Though pleadings must contain all the assertions and claims that the plaintiff wishes to establish but no principles of law covering the cause of action is mandatorily required to be pleaded in the plaint or written statement. It is settled principle of law that no pleading except by way of amendment shall raise any new ground of claim, inconsistent with the previous pleadings of the party.

Order VI Rule 7 of the CPC lays down that :- No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.

Thus, for taking an additional plea, that is not originally pleaded in the pleadings, the parties to the Lis have to seek amendment of the pleadings filed by them under Order VI Rule 17.

Order VI Rule 17 reads as :- Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

The principle enunciated in the above said provision clearly lays down that an application for amendment of the pleadings may be allowed by the court at any stage if the same is just and necessary for determining the real controversy between the parties. The said amendment may insert, remove, substitute or add new facts which were not originally pleaded by the parties. However, the proviso contained to the said rule clearly states that incase the amendment is to be allowed by the court after the commencement of the trial then the court must reach a conclusion that the amendment could not be raised earlier by the party despite his due diligence. The said rider was put by the court in order to avoid vexatious applications for amendment which a party may want in order to delay the litigation.

However, it was held in AIR 1922 Privy Council 249 that courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one. It was laid down that :-

"All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit."

It was further held in Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors 2006 (2) RCR (C) 577 that it is mandatory on court to allow all amendments which are necessary for the purpose of determining the real questions in controversy between the parties.

It is also settled principle of law that the parameters for allowing the amendment of plaint and written statement stand on different footing. It was laid down by the Supreme Court in Usha Balashaheb Swami & Ors. v. Kiran Appaso Swami & Ors. 2007 (2) RCR(Civil) 830 that :-

(1) Court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties.

(2) Amendment can be allowed even after trial has commenced if Court comes to conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

(3) Courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one.

(4) Prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings - Even an admission in the pleadings can be explained and inconsistent pleas can be taken in amendment petition even after taking a definite stand in the written statement.

(5) In the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case.

Further in Mani Raj v. Firm Radha Krishan Siri Niwas, G.T. Road, Hansi, Hisar and others 2003 (1) RCR(Civil) 125 it was held that :-

(1) Power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice;

(2) Amendment cannot be claimed as a matter of right and under all circumstances - Courts, however, should not adopt hyper technical approach;

(3) Amendments in pleadings as also in written statements are allowed to avoid multiplicity of litigation - More generously be allowed in written statement;

(4) All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defense taken;

(5) Inconsistent and contradictory allegations in negation to admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings;

(6) Delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.

At times allowing of the amendment in the pleadings after the commencement of the trial may also give rise to a new fact which was otherwise never a part of the issues already framed, in such a situation the court may on its own, or on an application moved by the parties to Lis, recast the issues by framing or striking of an additional issue under order XIV Rule 5.

The general principle of law is that any amendment made in the pleadings shall relate back to the fling of the suit but there may be occasions, where a plaintiff whose case is otherwise beyond limitation, may seek amendment of the plaint in order to bring the same within limitation. In such a situation the court while deciding the application may order that the amendment shall be prospective and shall be considered from the date of the order.

The principles of pleadings are so vital that a little evasiveness or omission to mention the cause of action can bar any future subsequent claim for the same.

Order II Rule 2 CPC clearly lays down that every suit shall contain the whole of the claim and any omission on the part of the plaintiff to claim so, shall bar a future suit claiming subsequently the relinquished part. Thus, pleadings of suit form a lifeline and an integral part of the litigation and can form the basis for the litigation to sink or sail.

Order VII Rule 11 of the CPC gives wide powers to the court to reject a plaint. A Plaint may be rejected by the Court of its own motion or upon filing of an application in that behalf by the opposite party, at any stage of the proceedings, before conclusion of the trial. It would not matter, even if the issues are already framed in the suit, and the case is at an advanced stage.

In Sopan Sukhdeo Sable & Ors. v. Assistant Charity Commissioner & Ors., (2004) 3 SCC 137, it was held by the Supreme Court that:

"The Trial Court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage."

In T. Arivandandam v. T.V. Satyapal & Anr. (1977) 4 SCC 467 the Supreme Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words :-

"5. ...The learned Munsiff must remember that if on a meaningful -not formal -reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing ..."

What transpires from these principles, carved out in the above-mentioned judgements and law, is that the drafting of the plaint must be done with utmost care and must contain the elements of pleadings on the basis of guidelines as contained in the CPC.

Though as the word suggest that to `Plead' means to pray, request or ask for something in a polite and humble manner but the same must be done with utmost caution while submitting the pleadings in the court as the pleadings form the backbone of the litigation and fate of the case not only depends on evidence the parties may lead but also on the fact of what they may plead or not plead.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

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