LAW504: DRAFTING, PLEADING AND CONVEYANCING

Section A [6 marks]:

1. Essentials of pleadings and its importance in civil litigation.

Definition / Meaning of Pleading:

Pleading, under Order VI of Code of Civil Procedure (CPC), 1908, refers to the formal plaint
or written statement submitted by the parties involved in a civil suit. The CPC defines two
main types of pleadings: the plaint and the written statement. The plaint is the document filed
by the plaintiff, to initiate a lawsuit. It contains details like the cause of action, relief sought,
jurisdiction, and parties involved. For example: In a breach of contract case, the plaint would
detail the agreement, breach, and damages sought. The written statement is the response filed
by the defendant, addressing the allegations made in the plaint and presenting any defences,
counterclaims or allegations.

Basic or Fundamental Rules of Pleadings under CPC:

The basic rules of pleadings are outlined in Sub-rule (1) of Rule 2 of Order VI of the Code of
Civil Procedure, 1908. These rules include:
1. Pleading Facts, Not Law: This principle was first emphasised in the case of Kedar
Lal v. Hari Lal, where it was held that parties must state the facts upon which they
base their claims. The court applies the law to these facts to render a judgement.
Parties should not assert or apply laws in their pleadings.
2. Material Facts Only: Only material facts should be included in pleadings. Immaterial
facts are not considered. In Union of India v. Sita Ram, the court clarified that material
facts include all facts upon which the plaintiff claims damages or rights or upon which
the defendant bases his defence.
3. Exclusion of Evidence: Pleadings should contain statements of material facts but not
the evidence by which those facts are to be proved. There are two types of facts:
 Facta Probanda: Facts that need to be proved (material facts). Only facta
probanda should be included in pleadings.
 Facta Probantia: Facts by which a case is to be proved (evidence).
4. Conciseness: Facts should be presented concisely, without omitting important and
relevant details. This ensures brevity and clarity without sacrificing essential
information.

Importance of Pleadings in Civil Litigation:

 These documents lay out the respective claims and defences of the plaintiff and the
defendant, setting the groundwork for the legal proceedings.
 The primary objective of pleadings is to clearly outline the issues in dispute, enabling
the court to understand the case and facilitating a fair and efficient trial.
 Pleadings must adhere to specific rules, such as stating only material facts, avoiding
legal arguments and excluding evidence. This ensures that the focus remains on the
facts in dispute, allowing the court to apply the relevant law during the trial.
  Properly crafted pleadings help streamline the judicial process, minimise
misunderstandings and ensure that both parties have a fair opportunity to present their
case.

2. Procedural requirement for filing written statement and the consequence of

failing to do so.

Meaning of Written Statement:

A written statement is a response to the plaint, a written defence statement submitted by the
defendant, addressing all the important points raised by the plaintiff in the plaint. This
statement includes objections to the plaintiff’s claims and can also introduce new facts if
needed. The rules for the written statement are outlined in Order VIII of CPC.

Procedure for filing written statement:

Order VIII Rule 1 sets the timeframe for the defendant to submit a written statement. Here’s a
breakdown:
 Initial Deadline: The defendant must file their written statement within 30 days from
when they receive the legal summons.
 Extension Possibility: In certain situations, this 30 day period can be extended, but not
beyond 90 days from the date of the court serving the summons. However, any
extension must be supported by written reasons.
 Commercial Disputes: In commercial disputes, the defendant is still initially given 30
days to file their written statement after receiving the summons. However, the court
can extend this period for up to 120 days from the date of the summons. Once again,
the court must record its reasons for the extension and the defendant may be required
to cover associated costs, if any. If the defendant misses these deadlines, they lose the
right to file a written statement.
 Late Submission: If the defendant cannot meet the prescribed time frame, they should
file the written statement as soon as possible along with an application requesting the
court’s permission for the delay. However, this application should have a valid reason
for the delay, one that was beyond the defendant’s control. If the court finds the
reason acceptable, it will accept the application and proceed with the case; otherwise,
it will reject it.

Consequences of Not Filing a Written Statement:

According to Order VIII Rule 10, if a person required to file a written statement fails to do so
within the specified or court-permitted time frame, the court has two options:
 Granting of Adjournment: The court can decide to grant an adjournment to the
defendant, providing additional time to submit the written statement. However, it’s
essential to note that Order XVII Rule 1 limits the number of adjournments to a
maximum of three for each party involved in the lawsuit. If, despite these
adjournments, the defendant still does not file the written statement, the court can
proceed with passing an ex parte decree.
  Pass an Ex Parte Decree: The court has the discretion to issue an ex parte decree
against the defendant. This step is not mandatory and is typically avoided initially.
However, if the defendant repeatedly fails to file a written statement even after
multiple adjournments, the court can choose to issue an ex parte decree against the
defendant.

3. Grounds for seeking specific performance of a contract and examples of how

such pleadings should be structured.

Grounds for Seeking Specific Performance of a Contract:

 Existence of a Valid and Enforceable Contract : The plaintiff must show that there is a
complete, lawful, and binding agreement between the parties.
 Inadequacy of Legal Remedy (Insufficient Damages) : The plaintiff must demonstrate
that monetary damages would not adequately compensate for the breach (e.g., the
subject matter is unique, such as land or rare goods).
 Plaintiff's Performance or Willingness to Perform: The plaintiff must plead that they
have either performed all obligations under the contract or are ready, willing, and able
to perform.
 Defendant's Breach or Failure to Perform : The plaintiff must show that the defendant
has refused or failed to perform their part of the contract.
 Mutuality of Obligation and Enforcement : It must be clear that both parties were
equally bound to perform their obligations under the contract.
 Absence of Defence (such as fraud, mistake, or duress) : The plaintiff must show that
there are no equitable bars to the relief sought (i.e., the contract was entered into
freely and fairly).
 Subject Matter is Certain and Definite: The terms of the contract must be clear enough
for a court to enforce.

Sample Structure for Pleading Specific Performance:

A.B., the abovenamed plaintiff, states as follows:
1. By an agreement dated the ____ day of ____ and signed by the defendant, he
contracted to buy of [or sell to] the plaintiff certain immovable property therein described and
referred to, for the sum of _______ rupees.
2. The plaintiff has applied to the defendant specifically to perform the agreement on his
part, but the defendant has not done so.
3. The plaintiff has been and still is ready and willing specifically to perform the
agreement on his part of which the defendant has had notice. [As in paras 4 and 5 of Form
No. 1.]
6. The plaintiff claims that the court will order the defendant specifically to perform the
agreement and to do all acts necessary to put the plaintiff in full possession of the said
property [or to accept a transfer and possession of the said property] and to pay the costs of
the suit.
4. Difference between general power of attorney and special power of attorney and
summarize their legal implications.