Pleadings, Drafting & conveyancing: Practical and Procedure
Written by:-
Vijay Kumar Katiyar
Deputy Director
Judicial Training and Research Institute
UP, Lucknow.
&
Vandana Singh Katiyar
Researcher & Advocate
Introduction-
No doubt pleadings and drafting are the backbones of the Civil Suits it means that if there are no proper pleadings and drafting then the fate of the Suits can not be in your favour. When we talk about pleadings and drafting in respect of State of Uttar Pradesh then Code of Civil Procedure, 1908, General Rule Civil, 1957, Legal Pronouncement of Hon’ble Courts of Record, and Practical experience of Legal professionals are very important. I thought if you have no experience then you can not do well as trained professionals can do. Therefore get the experience through learning, observing things, and learning by doing. I also thought that mistake is a very important thing in respect of legal professionals but a mistake in good faith is permissible and repeated mistake is not allowed. One more very important thing I would like to discuss here that the decision-making in respect of drafting in a Suit with proper pleading. Generally, Litigants and Legal professionals (Advocates) take emotional decisions rather than applying their brains. Pleadings and drafting based on emotions could not be survived. It is necessary for the legal professionals (Advocates) while drafting plaint or W.S. control over their emotions. Judges required control over their emotions while Considering pleading. I thought Litigants are overburdened by emotions because most civil disputes are among his near and dear people, due to this most cases, he thinks emotionally rather than wisely. It means that if there is an application of the legal brain then pleading and drafting and their interpretation would be qualitative. You can use emotions during cross-examination of the witnesses of the opponent and in oral arguments while delivering in the Court of law.
The extent of the Topic-
Order-6 deals with pleadings in general, Rule-1 defines pleading, Rule-2 lays down the fundamental principles of pleadings, Rule-3 to 13 requires the parties to supply necessary particulars, Rule-14 to 15 provide for signing and verification of the pleadings, Rule-16 empowers the Court to strike out unnecessary pleadings and Rule-17 and 18 contain provisions relating to amendment in pleadings. Even though pleading and drafting is a very wast and big topic, but for the sake of proper understanding, there must be a limit of the topic by which the interest of the reader should be maintained. For the shake of the convenience, we can subtitle the whole topic as bellow-
1. What is Pleading?
2. What is Drafting?
3. What is conveyancing?
4. Purposes of Pleadings.
5. Importance of Pleadings.
6. Principles of Pleadings.
7. Alternative pleadings.
8. Amendment in Pleadings.
9. Whether Irregularity in verification and signing of the pleadings curable or not?
10. Conclusion.
1. What is Pleading?
Now the very important question is before us that what is Pleading? Order IV, Rule 1 of the Civil Procedure Code runs as follows:
1. Suit to be commenced by plaint:-
(1) Every suit shall be instituted by presenting a [plaint in duplicate to the Court] or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules(1) and (2).
Order VI of the Civil Procedure Code deals with pleadings in general. Order VII deals with plaint and Order VIII deals with the written statement. Order VI, Rule 1 defines pleadings as follows:
The pleading shall mean plaint or written statement. It would be beneficial to distinguish between the pleadings and conveyancing. The dictionary meaning of the term ‘plead’ means ‘to state and argue a case. Therefore, pleading comprises of respective contentions of the parties in a dispute, which are reduced into writing. ‘Pleadings’, under Civil as well as Criminal Law, meant that to determine what the parties were currently fighting about. Pleading is the beginning stage of a lawsuit in which parties formally submit their claims and defences. In Civil proceedings, the plaintiff submits a plaint stating the cause of action -- the issue or issues in controversy. The defendant submits an answer- the reply- the written statement- stating his or her defences and denials. In other words, it is nothing but the formal presentation of claims and defences by parties to a lawsuit. Therefore, it includes every legal document filed in a lawsuit, petition, motion, and/or hearing, including complaint, petition, answer/reply, rejoinder, motion, declaration, and memorandum of points and authorities (written argument citing precedents and statutes). Hence, the term pleading would apply to the Court proceedings including the filing of the complaint plaint, etc., replies thereto and other incidental documents related to the dispute filed by either of the parties. Needless to mention here that, our legal system is an adversary legal system wherein there are two contesting parties. One party stakes its claim or right to a particular thing, which is disputed by the opposite side before the Court. Under these circumstances, each of the parties in support of its claim files in writing various contentions and submissions in terms of the different provisions under the law before the Court. All these documents constitute pleadings. It is only after the completion of the pleadings that a matter is argued and subsequently the dispute is adjudicated by the Court. See the below case laws-
1. Bharat Singh vs the State of Haryana, AIR,1988 SC 218.
2. Virendra Kashinath vs Vinayak N. Joshi, AIR,1999 SC 162.
2. What is Drafting?
Drafting in general means, putting one’s ideas in writing. Drafting of any matter is an art. Drafting of legal matters requires greater skills and efficiencies. It requires thorough knowledge of the law, procedure, settled judicial principles, besides proficiency in the English language. Perfect drafting of matters concerning suits, applications, complaints, writ petition, appeals, revision, reviews, and other such matters connected therewith shall lead to a good result in terms of money, time, energy, and expectation of not only the learned members of the Bench but also the Bar as well as the parties to the litigation. It creates a congenial atmosphere where the glory of the judiciary and the Law grows to sky-heights. So is the case concerning the drafting of conveyance/deeds. Drafting, Pleadings, and Conveyance (DPC) is made as a compulsory practical subject forming part of the curriculum of the Law Course in India. It envisages, inter alia, drafting of civil pleadings; criminal complaints and other proceedings; writ petition, appeal-civil, criminal; and also SLP; contempt petition, interlocutory applications, etc. A student who acquires the requisite knowledge, perfection, and proficiency in the drafting of these matters, shall undoubtedly become a perfect legal professional.
3. What is conveyancing?
On the other hand, the dictionary meaning of the ’conveyance’ is ‘an act by which property is conveyed or voluntarily transferred from one person to another utilizing a written statement and other formalities’. It also means ‘instrument’ itself. Therefore, the term conveyancing does not apply to the Court proceedings, rather it applies to the instrument, which has been documented not for Court proceedings, rather creates evidence of a particular transaction, which may be used before the Court in case of any dispute. So broadly speaking the pleading and conveyancing may be distinguished by simply stating that while the pleadings apply to Court proceedings and conveyancing applies to the documentation done outside the Court and not meant for the Court proceedings particularly, though they may be used in the Court proceeding, to substantiate a particular contention, claim or submission. Under this part of the subject, we would be learning the drafting of diverse documents, reflecting different kinds of transactions between the parties, as mentioned in the syllabus. There are some illustrations of conveyancing but these are not exhaustive-
1. will.
2. General Power of Attorney.
3. Special Power of Attorney to execute Sale Deed.
4. Agreement to sell.
5. Sale Deed.
6. Lease Deed.
7. Mortgage Deed.
8. Partnership Deed.
9. Deed of Dissolution of Partnership.
10. Relinquishment Deed.
11. Gift Deed.
12. Notice under section 106 of The Transfer of Property Act, 1882.
13. Notice under section 80 of Civil Procedure Code, 1908.
14. Notice under Section 138 of the Negotiable Instruments Act, 1881
15. Reply to Legal Notice under Section 138 of N.I. Act, 1881.
16- Acknowledge the debt.
4. Purposes of Pleadings-
On the various pronouncement of the Hon'ble Court of records, we can categorize the purpose of pleadings into two parts these areas below-
1. Intimation-
The first and very important purpose of the pleading is to the knowledge of the case of the parties reciprocally. It means that without knowing the case of another party cause of action as well as defence can not be established.
2. Real Issues-
For the purpose of reaching the real issues, it is necessary that pleadings are very useful. It means that there is no proper pleading then what are the real issues between parties can be ascertained and Court can not make adjudication properly.
5. Importance of Pleadings.
Now the question before us is that what is the importance of the pleadings? For the shake of the convenience, it can be enumerated as below-
- Which party's burden of proof lies and who can initiate Evidence.
- Which one Evidence is relevant in the light of pleadings.
- To what extent Evidence is admissible in the light of pleadings.
- To what extent relief can be granted.
6. Principles of Pleadings-
The English law of pleading has got four fundamental rules of pleading upon which Order 6 of the Code of Civil Procedure is based which are set out 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.
(1) Facts, not the law-
The first fundamental rule is that neither provisions of law nor conclusions of law should be alleged in a pleading. 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. See the case laws-
1. Gauri Dutt Ganesh Lal Firm vs Madho Prasad, AIR 1943 PC 147.
2. Kedar Lal vs Hari Lal, AIR,1952 SC 47.
3. Manoj vs Shanti, AIR 1997 SC 2153.
4. Lakhi Ram vs Trikha Ram, AIR 1998 SC 1230.
5. Syed Dastagir vs T.R. Gopalkrishana Setty, AIR 1999 SC 3029.
Illustration:
It will not be sufficient to state that ‘Abu Mohammad 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 there, are the facts that constitute a valid gift under Muslim Law. that ‘Abu Mohammad made a gift’ will be a conclusion of law from the facts which are not to be stated directly in the pleading. In a suit fobe states 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 negligent and how he became bound to use due care to prevent an injury to other. When the defendant has to reply to the plaintiff's claim 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 goes 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 goods were never ordered or were never delivered, or that they were not equal to the sample. It is not sufficient in a suit upon a contract for the defendant to, merely, plead the ‘the contract is rescinded’, the defendant must plead in what manner and by what means he contends that it was rescinded. The reason for not mentioning the law in the pleading is that the court has to find out and examine all pleas of Law that may apply to the facts of the case. However, the parties can make their submission about the law at any time. For example, the non-maintainability of the suit which is a point of law can be urged although no specific plea has been raised in the pleading. The rule that every pleading must state facts and not law or interference of law has got following exceptions:
(a) Foreign Laws: The courts 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.), for instance, the legality of the notice under section 80, C.P.C.
(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 recognized 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. Similarly, a party who wishes to rely on the usage of a particular trade and business and if it is at variance with any provision of the Contract Act, must not plead the usage of such trade and business with its detailed incident. If it is not pleaded, no evidence to prove it shall be admitted.
(e) The facts of negligence, right or liability, unlawful or wrongful act should be
specifically pleaded. Every plea of fact should be specifically raised and proved.
(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. The omission to observe this rule may increase the difficulty in the Court’s task of ascertaining the rights of the parties. See the case laws-
1. Virendra Nath vs Satpal Singh, AIR 2007 SC 581.
2. Union of India vs Sita Ram Jaiswal, AIR 1977 SC 329.
3. Brahma Prakash vs Manbir, AIR 1963 SC 1607.
Now, the question arises what are material facts?
The facts are essential to the plaintiff’s cause of action or the defendant’s defence. It can be said that fact is material for pleading a party that he is bound to prove at the trial unless admitted by the other party before he can succeed in his claim or defense. If one is in reasonable doubt about a particular fact as a material fact he should 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 an 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 another side. When the suit is brought under a particular statute, all facts which are necessary to bring the suit under the statute must be alleged. When a rule of law applicable to a case has an exception to it, all facts are material which tends to take the case out of the rule or out of exception. 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.
(4) Where a plaintiff sues based on a title he must state the nature of the deed from which he has derived title.
(5) The plea that a woman claiming maintenance has lost her right due to continuous desertion or living in adultery should be specifically raised.
(6) Where the plea is based on custom, it must be stated in the precise form what the custom is. For instance, 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. The following are the exception to this fundamental rule of pleading.
(a) Content of documents: Whenever the contents of the document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible without setting out whIt means introductory or prefatory facts which should be stated in the first and second parts 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 thole or any part thereof unless any precise words thereof are material. For instance, if the plaintiff’s claim is based on a sale deed, it is sufficient to state that the “defendant has sold the property to the property to the plaintiff by a sale-deed dated......”
(b) Matters of Inducement: they are related and connected and other surrounding circumstances leading up to the dispute. Though these are not material facts yet these are allowed in England and hence in India too. But the matter of inducement should be reduced to the minimum need.
(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 Probanda is not the facts in issue but only relevant facts which will be proved at the trial to facts in the 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. Secondly, in a policy of life insurance, the condition that the policy shall be void, if the holder dies of his hand, in the defence it is not necessary to state that the assured brought the pistol a few days before his death and made all preparation to kill himself. It is sufficient to state in defence that the assured died of his hand. In some cases where the facts in issue and relevant facts are so mixed up that it is very difficult to separate them and if it is so the relevant facts may be stated. For example, where the custom is based on the village administration paper, which is the basis of the claim and its sole proof. In such cases, the record has to be pleaded. See the below case laws-
1. Virendra Nath vs Satpal Singh, AIR 2007 SC 581.
2. R.M. Seshadri vs G. Vasantha Pai, AIR 1969 SC 692.
3.Kushalbhai Mahijibhai vs Firm of Mohmadhussain Rahimbux, AIR 1981 SC 977.
(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 to attain brevity in pleadings. Pleading is not a place for fine writing but the 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 paragraphs 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 relief. A good pleader should bear in mind the following points concerning a pleading.
(i) Describe the names and places accurately and spell them correctly and adopt the same spelling throughout.
(ii) 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 someplace and at someplace 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 plaintiffs or defendants, they can be referred to as ‘the plaintiff Ramashankar’ or ‘the defendant-Hariharan’ as the case may be.
(iii) A lawyer 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 language however correct it may be, e.g. if a policy becomes void in case, “the assured shall die of his 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 hand.”
(iv)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.
(v) 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.
(vi) Every pleading shall be verified by the party or the parties. Verification can also be made by any other person who is acquainted with the facts of pleadings. False verification is an offence punishable by the Indian Penal Code.
(Vii) In cases where a corporation is a party, a pleading may be verified by Secretary or by the director or by any other principal officer of that corporation who can depose the facts of the case. In the verification clause, one should denote according to the numbers of a paragraph what he verified out of his knowledge and what he verified upon the information received and believed to be true. See the below case laws-
1. Charan Lal Sahu vs Giani Zail Singh, AIR 1984 SC 309.
2. Virendra Kashinath vs Vinayak N. Joshi, AIR,1999 SC 162.
7. Alternative Pleas:-
Law does not prohibit a plaintiff from relying on several distinct and different rights in the alternative or a defendant from raising as many distinct and separate defences as he like. For example, a plaintiff may sue for possession of a house belonging to A, as an adopted son of A, and in the alternative under a will executed by A in the plaintiff’s favour. A plaintiff may claim a proprietary right in land, or, in the alternative easementary right in an action for pre-emption the defendant is not prohibited from setting up a plea of estoppel in addition to a plea of denial of the custom of pre-emption. A Hindu person claiming under a sale deed from a Hindu widow may support his claim by pleading that the widow separated during the lifetime of her husband and hence she was the owner of the property which she had sold to him, or in the alternative, the widow was in possession for over 12 years and thus became owner by adverse possession. A defendant in a money suit due on the promissory note against him may plead that he did not execute the promissory note, and in the alternative, the plaintiff claim is barred by the law of limitation. But it must be carefully borne in mind by the draftsman and separately be stated in the pleading. The court will not allow any such pleas on the ground covered by implication unless specifically set out. Thus, in a suit by a son to set aside certain transfers made by his mother on the ground of unsoundness of mind of his mother at the time or the transfer and further averred that the donee was residing with his mother and was completely under his dominion and control and the donee knew the mental condition of the donor. See the below case laws-
1. Sriniwas Ram Kumar vs Mahabir Prasad, AIR 1951 SC 177.
2. Akshaya Resturent vs P. Anajanappa, AIR 1995 SC 1498.
8. Amendment of pleadings:-
At any stage of proceedings, the court may 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 determining the real questions in controversy between parties. As it is already mentioned above, and it is evident from the amendment. Hence an application has to be filed under Order VI, Rule 17, for amendment of pleadings either by way of departure or otherwise, To allow the same or not is at the discretion of the court, depending upon the circumstances made out in the application. There are no fixed rules. It is a general rule that pleadings can be amended. Amendment of pleadings can be made at any time and any stage of the proceeding even at the stage of appeal or revision. Delay is not a bar. But it must be within the period of limitation. So also any amendment which alters the very nature of the suit, its fundamental character, a new ground of claim based on a new cause of action is not allowed. Amendment of pleadings plays an important role in civil litigation. There are several landmark judgments on this aspect delivered by the Supreme Court and various High Courts. Advocates and readers are requested to refer to those judgments for details. You are aware that pleadings include plaint and written statement. So, Order VI, Rule 17 is applicable even for amendment of written statements. But there is little confusion regarding Order VIII, Rule 9 C.P.C. There is a feeling that Order VI, Rule 17 is applicable for amendment of plaints and Order VIII, Rule 9 for amendment of the written statement. It is completely wrong. Order VIII, Rule 9 is intended only for subsequent pleadings by way of additional written statement by the defendant and written statement by the plaintiff, where the defendant claims set-off or counterclaim. Hence Order VIII, Rule 9 is not for amendment of the written statement. The scope for amendment of pleadings is very wide, more so, regarding plaint. Each and every minute alteration in plaint including amendment of cause title, adding legal representatives, correcting type mistakes also amounts to an amendment of pleadings.
9. Practical problems in respect of Pleading and drafting-
There are several practical problems in respect of pleadings these are as follows-
(i) Whether merit of amendment application may Consider or not?-
The answer is negative it means that while deciding amendment application then the merit of the application can not be taken into consideration because it is the established principle see the case laws-
1. Sampath Kumar vs Ayakannu, (2002) 7 SCC 559.
2. Usha Devi vs Rijwan Ahmad, (2008) 3 SCC 717.(ii) Whether Irregularity in verification and signing of the pleadings curable or not?-
It is well established that most of the people in India are less literate and legally not aware and sound hence the pleadings must be construed liberally. It means that procedural error should be cured because substantive justice should be done and give preference over procedural justice. The answer is affirmative means irregularity in signing and verification in pleadings should be cured in the latter stage of the proceeding, the suit can not be dismissed on that ground. It is also the mandate of the law the person verifying the pleading should also furnish an affidavit in support of his pleadings. Similarly, if the affidavit filed by the party is defective, a Court instead of rejecting it may allow the party to file a proper affidavit. See the case laws as below-
1. Bhikaji vs Brijlal, AIR 1955 SC 610.
2. Purushottam Umedbhai & co. vs Manilal & sons, AIR 1961 SC 325.
3. Dwarka Nath vs ITO, AIR 1966 SC 81.
10. Conclusion-
It is well established that in the purview of pleadings comes, plaint, written statement, counterclaim, set off, replication, etc. pleading should be based on the fundamental principles and if there are pleadings are not up to mark then Court may order for striking out of the pleadings or may be amended with the leave of the Court. Procedural errors may be cured at the latter stage of the proceeding and last but not least pleadings should be construed liberally & preference should be provided to do substantive justice.
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