Central University of South Bihar

SCHOOL OF LAW AND GOVERNANCE

Under the guidance of Mrs. Deep Narayan Singh

CPC (CODE OF CIVIL PROCEDUR)

Project on topic: - PLEADING

-------------------------------------------------------------------------------
Name : BABLU KUMAR
Course : B.A. LL.B. (Hons)
Semester : 5th
Enrollment No.: CUSB16131250 11

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Introduction: -
Before any dispute can be adjusted or decided it is necessary to ascertain the actual points at
issue between the disputants. Conceivably this may be done in several ways. Perhaps the
simplest is a process of direct questioning of the parties by the arbitrator or judge. Another
method is the exchange of written statements in advance of a direct hearing of the parties. Our
system calls for the development of issues by the parties themselves in formal manner in
advance of the actual trial. This is accomplished by requiring the serving on the opposing party
or the filing in court alternately by the parties of pleadings - written instruments wherein are
set forth the statements and contentions of each as to the points and facts in dispute. These
pleadings are to be distinguished from the lawyer's oral argument or "plea" made to the court
or jury at the trial of the case. Originally tinder the common law system the pleadings were
oral, but for several centuries they have been written and have become technical legal
documents, carefully framed by the attorneys of the parties. The content of these documents
and the manner in which they are to be employed in the litigation have become the subject of
rules in general of a highly refined nature. Pleading is the name given to the legal science which
deals with these rules. The pleadings therefore serve the primary purpose of acquainting the
court and the parties with the facts in dispute. They should in so doing point out the actual
issues to be settled. Several other purposes may also be served by the pleadings. Thus a
Committee of the American Bar Association classified the main purposes to be achieved by
the pleadings as follows: (1) to serve as a formal basis for the judgment to be entered; (2) to
separate issues of fact from questions of' law; (3) to give the litigants the advantage of the plea
of res adjudicata if again molested; (4) to notify the parties of the claims, defenses and cross-
demands of their adversaries.' As hereinafter pointed out in the discussion of "functions of
Pleading”. Furthermore, pleading is a branch of the law of remedies existing for the
enforcement of the substantive jural relations of the parties.

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Concept of the pleading: -
The term pleading refers to documents that are filed with a court, but not just any document
may be filed. Only those that conform to the rules of civil procedure and that serve a particular
purpose in accordance with those rules will be accepted by the court. Thus, the form a pleading
takes has an effect on the progress of the litigation. Specifically, pleadings help to frame a law
suit. That is, they specify what gave rise to the case and what the litigation will be about, the
law that will help to resolve it, and the terms on which the parties believe it should be resolved.
So, pleadings form the most important part of any law suit and therefore, it is necessary that a
law student is thorough with rules regarding pleadings.

Pleadings are very important in civil cases. It is the duty of the

lawyer to make a proper pleading. Since a considerable percentage of litigants are either
illiterate or not conversant with law the duty of the lawyer of becomes more relevant facts of
the case from the client. The lawyer has to even to anticipate probable evidence that may be let
in. All the details should be comprehended, analyzed and assimilated before drafting the
pleadings. A good case may sometimes be lost because of bad drafting. Pleading are intended
to put forth the case of the parties before court. Pleadings constitute the basis for the litigation.
By the pleadings, the point at issue between the parties should be clear and ambiguous. The
opposite party is made known of the case of the other party by the pleadings. While drafting
the pleadings there should be no attempt to concealment of the relevant facts. Astuteness in
drafting is necessary. But it should not go to the extent of putting the opposite party to surprise.
From the pleadings, either party should be able to know what his opponent’s case is and what
case he has to meet. The parties should get a fair idea from the pleadings as to what disputes
involved in the case effectually and completely. Proper pleadings would enable the court to
raise proper issue for trial. It would enable the parties to adduce proper evidence. It would
enable the court to decide the case effectually and completely. Proper pleadings would also
avoid delay and minimize the expenditure of litigation. It is the duty of the lawyer to ensure
that correct facts are brought before the court. He should ensure that wrong facts, calculated to
mislead the court are not pleaded. Judicial Pronouncements are effect to the effect that without
proper pleadings, any amount of evidence is of no use and that such evidence shall not be
looked into by the court.

The Rules regarding pleading are provided in the Code of Civil Procedure Code. Certain other
statues also provide for particular facts to be pleaded. For example: Specific Relief Act, section

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16(c) and 22. Certain defense would be available to a defendant, in the light of the provisions
of a statute. Such defense should not be omitted to be taken. The client would be able to supply
only facts. It is the duty of the lawyer to put forth the relevant facts in the pleadings so as to
make a foundation for a claim of defense, taken into account the relevant provision of law. The
role of the lawyer is very important in that context.

Rule 3 of Order II CPC1 provides for joinder of cause of action in the same suit. Rule 4 of
Order II stipulated what all causes of action can be joined with a suit for recovery of immovable
property. Order VI CPC provides for the pleadings generally. Order VII deals with the plaint.
Order VIII deals with written statement, set off and counter claim2.

Every pleading shall contain, and contain only, a stamen in a concise form of the material facts
on which the party pleading relies for his claim or defense, nut not the evidence by which they
are to be proved. The pleading shall be divided into paragraphs and numbered consecutively.
Dates, sums and numbers shall be shown in figures as well as in words. If the party relies on
any misinterpretation, fraud or breach of trust, willful default or undue influence, the facts
constituting the same should be specifically pleaded. The burden of proof of misinterpretation,
frauds and undue influence is on the party who alleges the same.

Any condition precedent, the performance of occurrence of which is intended to be contested,

shall be distinctly be specified in the pleadings. No pleading shall except by way of amendment
raise any new ground of claim or contain any allegation of fact inconsistent with the previous
ruling of the party pleading the same. The provision for amendment of pleadings is contained
in Rule 17 of Order VI. It is true that the court may allow amendment of pleadings at any stage.
But after the amendment of CPC by ACT 22 of 2002, the scope of Rule 17 is restricted.

Pleading should not be scandalous, frivolous or vexatious. It should not contain matters which
would tend to prejudice, embarrass or delay the fair trial of the suit of which is otherwise an
abuse of the process of the court. The court has jurisdiction to strike out such pleadings or
portion of the same or to direct the parties to amend the pleadings.

Origin of pleading: -

1
Code of civil procedure act 1908, bare act
2
idb

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The system of pleading developed in the English courts of common law after the Norman
Conquest and applied in legal actions in this country until the pleading reforms of the middle
and the latter part of the nineteenth century is commonly called common law pleading. The
system of pleading developed in the English courts of chancery and likewise applied in the
equity courts in this country is termed equity pleading. Code pleading is the term applied to the
reformed system of pleading initiated by the New York Code of 1848 and now in force in some
thirty American jurisdictions. But since it developed from the former systems and in many
respects continues various details and parts of them, it is necessary to consider the antecedents
of code pleading in the other systems. Under Indian system of law, Pleading are covered under
Order 6 of Civil Procedure Code. Rule 1 defines pleading, while Rule 2 lays down the
fundamental principles of pleadings. Rule 3 to Rule 13 require the parties to supply necessary
particulars. Rule 14 and 15 provide for signing and verification of pleadings. Rule 16 empowers
a court to strike out unnecessary pleadings. Rule 17 and 18 contain provisions relating to
amendment of pleadings.

The scope of pleading: -

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, who has the right to open the case. They also determine the range
off admissible evidence which the parties should adduce at the trial. They also lay down limit
on the relief that can be granted by the court.

Rules regarding pleadings3: -

There are some rule regarding to the pleading

1. A pleading must state facts and not law.

2. It must contain only material facts on which the party pleading relies for his claim or
defense.
3. It must state only the facts on which the party pleading relies for his claim or defense,
and not the evidence by which they are to be proved.

3
Civil procedure, c. k. takwani, pg 195

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 4. The facts must be in the form of a concise statement but in aiming at conciseness,
precision should not be sacrificed. The pleadings, when necessary, shall be divided into
paragraphs, numbered consecutively and each allegation being, so far as is convenient,
contained in a separate paragraph. Dates, sums and figures shall be expressed in figures.
5. Allegations in anticipation of the opponent’s answer should not be made. The pleading
should be confined to what is material at the present stage of the suit.
6. Facts necessary for the enforcement of a legal right or duty must be mentioned. Thus
in a suit for breach of contract on account of the negligence of the defendant, it has to
be stated specifically what kind of duty the defendant owed to the plaintiff and how
was he negligent.
7. Performance of a condition precedent being implied in every pleading it need not be
alleged; the opposite party must specify distinctly the conditions, the performance or
occurrence of which he intends to contest.
8. Where the contents of any documents are material, it shall be sufficient in any pleading
to state the effect thereof as briefly as possible, without setting out the whole or any
part thereof, unless the precise words of the document or any part thereof, are material.
9. Facts which the law presumes in one’s favor or as to which the burden of proof lies
upon the opponent need not be pleaded.
10. The party should not plead conclusions of law. The pious obligation of a Hindu son to
pay his father’s debts need not be pleaded. But foreign law and certain customs and
usages are not judicially taken notice by courts and must be pleaded as facts.
11. Legal pleas such as estoppel, limitation and res-judicata may be pleaded.
12. In case where the party pleading relies on any misrepresentation, fraud, breach of trust,
willful default or undue influence, particulars shall be stated in the plaint.

Amendment of pleadings and its objective: -

The Court may at any stage of the proceedings allow both parties 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 question 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. As stated earlier,
essential details have to be mentioned in the plaint and unnecessary details have to be struck

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out. The paramount object behind Amendment is that the courts should try the merits of the
cases that come before them and should consequently allow all amendments that may be
necessary for determining the real question in controversy between the parties provided it does
not cause injustice or prejudice to the other side. Ultimately, the courts exist for doing justice
between the parties and not for punishing them, and they are empowered to grant amendments
of pleadings in the larger interest of doing full and complete justice to parties Provisions for
the amendment of pleading are contained to promote end of justice and not for defeating them.
Further in the leading case of Cropper v. Smith4, the object underlying the amendment of
pleadings has been laid down by Bowen, L.J. in the following words: “I think it is well-
established principle that the object of the courts is to decide the rights of the parties and not to
punish them for mistakes they make in the conduct of their cases by deciding otherwise than
in accordance with their rights”.

In a major judgment that aims to thwart attempts by a large section of litigants locked in civil
cases to delay proceedings for their benefit, the Supreme Court has said that the provision in
the Civil Procedure Code (Order VI Rule 7) that allows improvement in averments could be
done away with, as “this is the most misused” law for “dragging the proceedings indefinitely”.
The already overloaded civil courts are compelled to defer hearings, which causes delay in
disposal of disputes, the court said. Applications for amendment lead to further delay, it said.
Civil courts must adhere to certain guidelines while granting adjournments, the court said. And
they must assess whether the plea is counter-productive to speedy dispensation system. It must
be decided whether the plea for amendment to the petition is necessary for determining the real
disputed question. The court must exercise discretion while assessing the “potentiality of
prejudice or injustice likely to be caused to the other side” and award costs accordingly. A
bench of justices Dalveer Bhandari and Harjit Singh Bedi also said that discretion must be used
judiciously and the courts concerned must compensate the other party for “unnecessary delay
and inconvenience caused to him”5.

The court discussed the principles governing the Amendment of pleadings and held that "It is
clear that while deciding the application for amendment ordinarily the Court must not refuse
bona fide, legitimate, honest and necessary amendments and should never permit mala fide and
dishonest amendments. The purpose and object of Order VI Rule 17 of the Code 6 is to allow

4
(1884)26 chD 700
5
Civil procedure, c.k. takwani, pg- 205
6
Code of Civil procedure 1908, Bare act

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either party to alter or amend his pleadings in such manner and on such terms as may be just.
Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts
while deciding such prayers should not adopt a hyper-technical approach. Liberal approach
should be the general rule particularly, in cases where the other side can be compensated with
costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations."
Rule for Amendment of Pleadings7

1. Cause of action in a suit cannot be altered by amendment of pleadings. The cause of

action will not be allowed to be substituted in totality and the reason being that the
cause of action is the very basis of a suit. If a new/distinct cause of action is there, the
parties are always free to go to the Court with such cause of action in an independent
suit. But there can be cases where the cause of action has got further aggravated by any
further violation or some continuing cause of action which can be joined in the present
suit due to subsequent change of circumstances. In such cases, the Court in its discretion
is free to allow the amendment as that would not be a case of substitution of cause of
action.
2. The Amendment of pleadings shall be allowed to bring or to clarify all matter in issue
before the Court. The matter in issue is essential for the determination of the suit and
therefore amendment can be made. Similarly, relief also can be amended. In such cases,
if the amendment is not allowed, the bar of res-judicata or as the case may be, the bar
of Order II Rule 2 of the Code of Civil Procedure, 1908 may apply. Therefore, the Court
should try to bring a balance between the injustice that might be caused to the applicant
in case of refusal to grant relief and at the same time, in case of allowing the application,
the requirement of injustice caused to the other party in the present suit.
3. If a right has already accrued in pleadings to the opposite party, then the Court shall
normally be reluctant to allow the Amendment of pleadings. However, in such cases, if
the loss that will be caused to the other party can be adequately compensated for by
cost then amendment shall be allowed.
4. When the court hears the application for Amendment of pleadings it does not go into
the merits of the case. While considering the prayer for amendment of the pleadings,
the Court cannot go into the issue of merits vis-à-vis maintainability of the suit, but can

7
Code of Civil procedure, c. k. takwani, pg- 214.

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 consider only whether the amendment is necessary to determine the real controversy
between the parties.
5. If there is an undue delay in the filing of the application for amendment, without there
being sufficient cause shown to condone the delay, then the Court may normally not
allow the amendment.
6. Change of law: The law can be a change of substantive law either prospective or
retrospective. If it is a prospective change then it normally not effects cause of action
and matter in issue in the pending suit and therefore, amendment is not needed. Whereas
it is a retrospective change, amendment might be needed and shall be allowed. If it is a
change of procedural law then normally pleadings will not be allowed to be amended
but the court shall itself take note of the change of procedural law.

Further, Order VI rule 18 of the Code of Civil Procedure8, 1908 casts a duty on the party to
carry out the amendment, if allowed by the Court, within the time limited for the said purpose
by the order and if no time is thereby stated, then within 14 days from the date of the order. In
case the party fails to carry out amendment within the said period, he shall not be permitted to
carry out the amendment after the expiration of time limited, unless the time is further extended
by the Court.

HIGH COURT AMENDMENT

Karnataka: Re-number Rule 4 as Rule 4 (1) and add the following as Rule 4 (2)9:

“(2) In a suit for infringement of a patent, the plaintiff shall state in his plaint or annex thereto
the particulars of the breaches relied upon, and the defendant if he disputes the validity of the
patent shall state in his written statement or annex thereto the particulars of the objections on
which he relies in support of such invalidity; at the hearing of any such suit no evidence shall,
except with the leave of the Court (to be given upon such terms as to the Court may seem just),
be admitted in proof of any alleged infringement or objections not raised in the particulars of
breaches or objections respectively.”

STATE AMENDMENT

Rule 4-A

8
Code of Civil procedure, Bare act
9
www.indiankanoon.org, 02-12-2018

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Madhya Pradesh: Alter Rule 4, the following shall be inserted, namely10:

“4-A. Particulars of pleading for agricultural land.— In any suit or proceeding contemplated
under Rule 3-B of Order 1, the parties, other than the State Government shall plead the
particulars of total agricultural land which is owned, claimed or held by them in any right and
shall further declare whether the subject matter of suit or proceeding is or is not covered by
Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 (No. 20 of 1960) and whether
any proceedings in relation to such subject matter are to the knowledge of the party pending
before the competent authority.” M.P. Act. No. 29 of 1984 (w.e.f. 14-8 1984).

Case law: -
In Bhagwati Prasad vs. Shri Chandramaul11 : Supreme Court ruled out that If a plea is not
specifically made and yet it is covered by an issue by implication, and the parties knew that the
said plea was involved in the trial, then the mere fact that the plea was not expressly taken in
the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily
proved by evidence. The general rule no doubt is that the relief should be founded on pleadings
made by the parties. But where the substantial matter relating to the title of both parties to the
suit was touched, tough indirectly or even obscurely in the issues, and evidence has been led
about them then the argument that a particular matter was not expressly taken in the pleadings
would be purely formal and technical and cannot succeed in every case.

In Lalita Prasad v. Gajadhar12 , it was observed that a pleading must not set forth a public
statute, for the court is bound to take judicial notice of it. It should set out only facts, and the
relief sought, and not the law or the particular section of the statute under which the claim is
made. Nor should the parties plead conclusions of law or of mixed law and fact. It is for the
court to declare law arising upon the facts before it. The parties should state only the facts on
which they rely for their claim or defence.

In Hanuwant Singh Rawat V. M/s Rajputana Automobiles13,

Ajmer , the Rajasthan High Court summarised the legal position as under:-

10
www.indiankanoon.org, 02-12-2018
11
AIR 1966 SC 735
12
AIR 1933 All 235
13
(1993) 1 WLC 625

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 1. That the amendment of pleadings should ordinarily be allowed by the Court, once it is
satisfied that the amendment is necessary for the just and proper decision of the
controversy between the parties;
2. The amendment of pleadings should not ordinarily be declined only on the ground of
delay on the part of the appellant in seeking leave of the Court to amend the pleadings,
if the opposite party can suitably be compensated by means of costs etc. Even
inconsistent pleas can be allowed to be raised by amendment in the pleadings;
3. However, amendment of pleadings cannot be allowed so as to completely alter the
nature of the Suit;
4. Amendment of the pleadings must not be allowed when amendment is not necessary
for the purpose of determining the real question(s) in the controversy between the
parties;
5. The amendment should be refused where the plaintiff’s Suit would be wholly displaced
by the proposed amendment;
6. Where the effect of the amendment would be to take away from the defendant a legal
right which has accrued to him by lapse of time or by operation of some law;
7. The amendment in the pleadings should not be allowed where the court finds that
amendment sought for has not been made in good faith or suffers from lack of bona
fides;
8. And ordinarily, the amendment must not be allowed where a party wants to withdraw
from the admission made by it in the original pleadings.”

Similarly, in the case of Peethani Suryanarayana v. Repaka Venkata Ramana Kishore14 ,

it was held that the Courts hold the power to allow such amendment provided: (a) Application
is bonafide (b) Does not cause injustice to the other side (c) Does not affect the right(s) already
accrued to the other side.

In Sampat Kumar V. Ayyakannu & Anr.15 ,

the Supreme Court held that any amendment seeking to introduce a cause of action, which
arose during pendency of the Suit, may be permitted in order to avoid multiplicity of Suit. But,
it should not change the basic structure of the Suit. More so, the court should be liberal to allow
amendment at the time of pre-trial of a Suit but must be strict and examine the issue of delay

14
(2009) 11 SCC 308
15
(2002) 7 SCC 559

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where the application for amendment is filed at a much belated stage of commencement of the
trial.

In Bharat Karsondas Thakkar V. M/s Kiran Construction Co. & Ors.16 ,

the Supreme Court held that amendment is not permissible if it changes the nature of suit. In
Ajendraprasadji N. Pande & Anr. V. Swami Keshavprakeshdasji N. & Ors17., the
Supreme Court considered the scope of amendment in Order VI Rule 17 C.P.C. by adding a
proviso to the effect that amendment application should be filed prior to commencement of the
trial. The Apex Court held that trial commences when the issues are settled and case is set down
for recording of evidence. The Apex Court observed that unless the party satisfies the Court
that in spite of due diligence, the issue could not be raised in the suit or proceedings before the
commencement of trial, the amendment should not be allowed. While deciding the said case,
the Apex Court considered a large number of its earlier judgments particularly B.K. Narayana
Pillai V. Parmeshwaran Pillai & Anr.18 ; Kailash V. Nankhu & Ors. ; & Baldev Singh & Ors19.
Manohar Singh & Anr20. , wherein it had been held that the delay of its own, untouched by
fraud is not a ground for rejecting the application for amendment. The provisions are
procedural, and therefore, should be construed liberally to advance the case of justice and not
to retard or to defeat justice.

16
2008 AIR SCW 3192
17
2007 AIR SCW 513
18
2001) 1 SCC 712
19
2005) 4 SCC 480
20
(2006) 6 SCC 498

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Conclusion
Pleadings provide a guide for the proper mode of trial. It basically establishes the issues
between the parties for the final decision of the court at the trial, they manifest and exhibit their
significance throughout the whole process of the litigation. Furthermore, it even demonstrates
upon which party the burden of proof lies and who has the right to open the case. They also
determine the range off permissible evidence which the parties should adduce at the trial.
Moreover, lay down limit on the relief that can be granted by the court. Thus, pleadings form
an integral and the most vital part of the entire law suit. However, it should be noted, the Court
may at any stage of the proceedings permit both the parties 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 question 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. This provision for
amendment of the plaint is contained in Rule 17 of Order VI. Various case laws have been
discussed in this project which specifically deal with amendment of pleadings. For example, in
the case Hanuwant Singh Rawat V. M/s Rajputana Automobiles, Ajmer it was held
Amendment should not change the basic structure of the Suit and the same was even held in
Bharat Karsondas Thakkar V. M/s Kiran Construction Co. & Ors. Moreover, in the case of
Sampat Kumar V. Ayyakannu & Anr the court laid down the guidelines for amendment of
pleadings. Furthermore, in the case of Lalita Prasad v. Gajadhar , it was observed that a
pleading must not set forth a public statute, for the court is bound to take judicial notice of it.
It should set out only facts, and the relief sought, and not the law or the particular section of
the statute under which the claim is made. Nor should the parties plead conclusions of law or
of mixed law and fact. It is for the court to declare law arising upon the facts before it. The
parties should state only the facts on which they rely for their claim or defence.

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SUGGESTION: -

As per my opinion, the term pleading refers to documents that are filed with a court, but not
just any document may be filed. Only those that conform to the rules of civil procedure and
that serve a particular purpose in accordance with those rules will be accepted by the court.
Thus, the form a pleading takes has an effect on the progress of the litigation. Specifically,
pleadings help to frame a law suit. That is, they specify what gave rise to the case and what the
litigation will be about, the law that will help to resolve it, and the terms on which the parties
believe it should be resolved. So, pleadings form the most important part of any law suit and
therefore, it is necessary that a law student is thorough with rules regarding pleadings. And it
is the foundation of a legal suit and without it, no suit can progress

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BIBLIOGRAPHY: -

BOOKS REFERR

 C. K. TAKWANI, CIVIL PROCEDURE, EDN 7TH (2016),EASTERN BOOK

COMPANY
 DR. AVTAR SINGH, CODE OF CIVIL PROCEDURE, EDN 4TH (2015)
CENTEAL LAW PUBLICATIONS.
 BARE ACT 1908
 DR. ASHOK K. JAIN, LAW GUIDE FOR JUDICIAL SERVICE
EXAMINATIONS,EDN 1ST (2004), ASCENT PUBLICATION.

WEBSITES REFERRED

 http://civilprocedure.uslegal.com/the-course-of-a-civil-lawsuit/the-pleadings-stage-of-
a-case/
 http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4226&context=fss_p
apers
 http://www.legalservicesindia.com/article/article/amendment-to-pleadings-and-the-
approach-of-the-judiciary-1427-1.html

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