Subject- Law of Contract II

Topic- Pleading
(Back Paper Project)

Submitted to :

Submitted by

Ashu Mahrshi

Pulkit Pareek

(Asst. Prof.)

B.A.LL.B(5th Sem)

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CONTENTS
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Contents
Acknowledgement
Introduction
Pleading
Rules of Pleading
Examples of Pleading
System of Pleading
Amendment of Pleading
Conclusion

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ACKNOWLEDGEMENT
I take immense pleasure in thanking Maam

wish to express my deep gratitude to

him for his insightful guidance which permitted me to carry out this work. My consult faculty
has been a source of inspiration and I am very thankful to him for his guidance which helps me
in completing this project.
Words are in adequate in offering my thanks to him for his encouragement and co-operation in
carrying out the report work last but not the least I would like to thank my friends.

INTRODUCTION
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Pleadings are statements in writing drawn up and filed by each party to a case stating
what his contentions will be at the trial and giving all such details as his opponent needs
to know in order to prepare his case in answer.
Pleading is defined in the Code of Civil Procedure as meaning a plain or written
statement. (O. VI, R. 1).
Plaint is the statement of a claim, in writing and filed by the plaintiff in which he sets out
his cause of action with all necessary particulars.
Justice K T Sankaran
Pleadings are very important in civil cases. It is the duty of the lawyer to make a
properpleading. Since a considerable percentage of litigants are either illiterate or not
conversant withlaw the duty of the lawyer of becomes more relevant facts of the case
from the client. The lawyerhas to even to anticipate probable evidence that may be let
in. All the details should becomprehended, analysed and assimilated before drafting the
pleadings. A good case maysometimes be lost because of bad drafting
Written statement is the statement of defence in writing and filed by the defendant in
whom he deals with every material fact alleged by the plaintiff in the plaint and also
states any new facts which may be in his favour adding such legal objections as he
wishes to take to the claim.
In some cases a plaintiff, having filed his plaint, may, with the leave of the court, file
statement, or the court may require him to file a written statement. In such cases the
written statement forms part of the plaintiffs pleadings.
Similarly, there are cases in which the defendant having filed his written-statement may,
with the leave of the court, file an additional written statement or the court may require
him to do.

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In such cases additional written statement also forms part of the defendants pleadings.
The plaintiffs written and the defendants additional written statement are termed
supplemental pleadings.
The whole object of the pleadings is to narrow the parties to definite issues and thereby
to diminish expense and delay, especially as regards the amount of testimony required
on either side at the hearing.

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Rules regarding pleadings:

The rules regarding pleadings are as under:
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
defence.
3. It must state only the facts on which the party pleading relies for his claim or defence,
and not the evidence by which they are to be proved.
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 opponents 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.

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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 ones favour 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 fathers 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.

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Examples of pleadings
In the United States, a complaint is the first pleading filed by a plaintiff which initiates a
lawsuit. A complaint sets forth the relevant allegations of fact that give rise to one or
more legal causes of action along with a prayer for relief and sometimes a statement of
damages claimed (an ad quod damnum clause). In some situations, a complaint is
called apetition, in which case the party filing it is called the petitioner and the other
party is the respondent. In equity, sometimes called chancery, the initial pleading may
be called either a petition or a bill of complaint in chancery.
In England and Wales, the first pleading is a Claim Form, issued under either Part 7 or
Part 8 of the Civil Procedure Rules, which sets out the nature of the action and the relief
sought, and may give brief particulars of the claim. The Claimant also has the option,
under Practice Direction 7A.61 to serve Particulars of Claim (a document setting out the
allegations which found the cause of action) within 14 days of issue of the Claim Form.
When used in civil proceedings in England and Wales, the term "complaint" refers to the
mechanism by which civil proceedings are instituted in the magistrates' court and may
be either written or oral.
A demurrer is a pleading (usually filed by a defendant) which objects to the legal
sufficiency of the opponent's pleading (usually a complaint) and demands that the court
rule immediately about whether the pleading is legally adequate before the party must
plead on the merits in response. Since demurrer procedure required an immediate
ruling like a motion, many common law jurisdictions therefore went to a narrower
understanding of pleadings as framing the issues in a case but not being motions in and
of themselves, and replaced the demurrer with the motion to dismiss for failure to state
a cause of action or the application to strike out particulars of claim.

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An answer is a pleading filed by a defendant which admits or denies the specific

allegations set forth in a complaint and constitutes a general appearance by a
defendant. In England and Wales, the equivalent pleading is called a Defence.
A defendant may also file a cross-complaint or third-party complaint as well to bring
other parties into a case by the process of impleader.
A defendant may file a counter-claim to raise a cause of action to defend, reduce or set
off the claim of the plaintiff

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Systems of pleading
Common law pleadin
Common law pleading was the system of civil procedure used in England, which early
on developed a strong emphasis on the form of action rather than the cause of
action (as a result of the Provisions of Oxford, which severely limited the evolution of the
common law writ system). The emphasis was on procedure over substance.
Law and equity evolved as separate judicial systems, each with its own procedures and
remedies. Because the types of claims eligible for consideration was capped early
during the development of the English legal system, claims that might have been
acceptable to the courts' evolving sense of justice often did not match up perfectly with
any of the established forms of action. Lawyers had to engage in great ingenuity to
shoehorn their clients' claims into existing forms of action. The result was that at
common law, pleadings were stuffed full of awkward legal fictions that had little to do
with the actual "real-world" facts of the case.
In its final form in the 19th century, common law pleading was terribly complex and slow
by modern standards. The parties would normally go through several rounds of
pleadings before the parties were deemed to have clearly stated their controversy, so
that the case was "at issue" and could proceed to trial. A case would begin with a
complaint in which the plaintiff alleged the facts entitling him to relief, then the defendant
would file any one of a variety of pleas as an answer, followed by a replication from the
plaintiff, a rejoinder from the defendant, a surrejoinder from the plaintiff, a rebutter from
the defendant, and a surrebutter from the plaintiff. At each stage, a party could file a
demurrer to the other's pleading (essentially a request that the court immediately rule on
whether the pleading was legally adequate before they had to file a pleading in
response) or simply file another pleading in response.
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Generally, a plea could be dilatory or peremptory. There were three kinds of dilatory
plea: to the jurisdiction, in suspension, or in abatement. The first challenged the court's
jurisdiction, the second asked the court to stay the action, and the third asked the court
to dismiss the action without prejudice to the other side's right to bring the claims in
another action or another court. A peremptory plea had only one kind: a plea in bar. A
party making a plea in bar could either traverse the other side's pleading (i.e., deny all
or some of the facts pleaded) or confess and avoid it (i.e., admit the facts pleaded but
plead new ones that would dispel their effect). A traverse could be general (deny
everything) or specific. Either side could plead imparlance in order to get more time to
plead on the merits. Once the case was at issue, the defendant could reopen the
pleadings in order to plead a newly discovered defense (and start the whole sequence
again) by filing a plea puis darrein.
The result of all this complexity was that to ascertain what was "at issue" in a case, a
stranger to the case (i.e., such as a newly appointed judge) would have to sift through a
huge pile of pleadings to figure out what had happened to the original averments of the
complaint and whether there was anything left to be actually adjudicated by the court.

Code pleading
Code pleading was first introduced in 1850 in New York and in 1872 in California, and
eventually spread to 22 other states.[citation needed] Code pleading sought to abolish the
distinction between law and equity. It unified civil procedure for all types of actions as
much as possible. The focus shifted from pleading the right form of action (that is, the
right procedure) to pleading the right cause of action (that is, a substantive right to be
enforced by the law). Under code pleading, the required elements of each action are
supposed to be set out in carefully codified statutes.

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Code pleading stripped out most of the legal fictions that had encrusted common law
pleading by requiring parties to plead "ultimate facts." This means that to plead a cause
of action, the pleader has to plead each element and also allege specific facts which, if
proven with evidence at trial, would constitute proof of that element. Failure to provide
such detail could lead to dismissal of the case if the defendant successfully demurred to
the complaint on the basis that it merely stated "legal conclusions" or "evidentiary facts."
Code pleading also drastically shortened the pleading process. Most of the old common
law pleadings were abolished. From now on, a case required only a complaint and an
answer, with an optional cross-complaint and cross-answer, and with the demurrer kept
as the standard attack on improper pleadings. Instead of piling layers and layers of
pleadings and averments on top of each other, a pleading that was attacked by
demurrer would either be completely superseded by an amended pleading or would
proceed immediately "at issue" as to the validly pleaded parts. This meant that to
determine what the parties were currently fighting about, a stranger to a case would no
longer have to read the entire case file from scratch, but could (in theory) look only at
the most recent version of the complaint filed by the plaintiff, the defendant's most
recent answer to that complaint, and any court orders on demurrers to either pleading.
Code pleading was criticized because many lawyers felt that it was too difficult to fully
research all the facts needed to bring a complaint before one had even initiated the
action, and thus meritorious plaintiffs could not bring their complaints in time before
the statute of limitations expired. Code pleading has also been criticized as promoting
"hypertechnical reading of legal papers".

Notice pleading

Notice pleading is the dominant form of pleading used in the United States today. In
1938, the Federal Rules of Civil Procedure were adopted to govern civil procedure
in United States federal courts. One goal of the Federal Rules of Civil Procedure was to
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relax the strict rules of code pleading. However, each state also has its own rules of civil
procedure, which may require different or stricter rules in state court.

Fact pleading
Louisiana, a state that derives its legal tradition from the Spanish and French (as
opposed to English common law), employs a system of fact pleading wherein it is only
necessary to plead the facts that give rise to a cause of action. It is not necessary even
for the petitioner to identify the cause of action being pleaded. Mere conclusory
allegations such as "the defendant was negligent" are not, by themselves, sufficient to
sustain a cause of action.
Other states are also fact-pleading jurisdictions. Illinois, for example, requires that a
complaint "must assert a legally recognized cause of action and it must plead facts
which bring the particular case within that cause of action.

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Amendment of pleading
Amendment of pleadings is basically for the purpose of bringing about final adjudication
in a suit and to avoid multiplicity of proceedings. It is in the interest of justice that a suit
shall be decided on all points of controversy and accordingly, it is needed that the party
shall be allowed to alter or amend their pleadings during the pendency of the suit. There
can be a situation where there is change of circumstances in the course of pendency of
a proceeding and if a matter in issue arises upon such change of circumstance, then
amendment becomes necessary. Amendment of pleadings is provided under Order VI
Rule 17 of the Code of Civil Procedure, 1908, which reads as under:
According to Order VI Rule 17 of the Code of Civil Procedure, 1908, the Court may
allow the amendment at any stage of the proceedings and for such purpose it may
impose conditions i.e. in the form of cost or any other condition. The Court has been
given discretion in this regard and the mandatory guidelines upon the Court as well as
upon the party seeking amendment is that they shall make only such amendments
which are necessary for determination of real controversy between the parties to the
suit. At the same time, the Proviso to Order VI Rule 17 puts a mandate upon the Court
not to allow such amendment after the trail has begun (i.e. if issues have been settled),
if its finds that the party could have raised the pleadings by due diligence at an earlier
point of time.
However, the Proviso need not be given a very rigid effect in all cases as the same is
subject to the discretion of the Court. The main object of the legislation is to enable the
Court to allow amendment at any stage. The purpose of the Proviso cannot do away
with the intent of the legislation. Thus, if an application for amendment of pleadings has
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been filed after trial has begun, the Court will normally be tilted against the applicant, if it
could be raised by due diligence at any earlier stage of proceedings. But in proper
cases if the point to be amended is very essential to the suit, the Court may, in the
interest of justice and equity, allow the amendment on such conditions as the Court
deems fit and proper in the facts and circumstances of the particular case.
It was held by the Hon'ble Supreme Court in Salem Advocate Case1, that by the 2002
Amendment, which added the Proviso to Order VI Rule 17, the burden of proof has
been shifted upon the applicant who makes the application for amendment after the trail
has commenced, to prove that despite due diligence he could not have raised the issue
before the commencement of trail. This is for the purpose of preventing frivolous
application to delay the proceedings.

Guidelines for Amendment of Pleadings

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.

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
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resjudicata 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.

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.

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--vis maintainability of
the suit, but can consider only whether the amendment is necessary to determine
the real controversy between the parties.3

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.

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 effect 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 Procedure, 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
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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.

Conclusion
In view of the aforesaid, it can be concluded that the amendment of pleadings cannot be
claimed by the party as a matter of right nor can be denied by the Court arbitrarily.
However, the discretion to be exercised by the Court is guided by the principles
mentioned hereinabove and depends on the facts and circumstances of each case.
Thus, rational behind the provision of Order VI Rule 17 of the Code of Civil Procedure,
1908 can be summarized as "Court shall allow application of amendment if granting of
an amendment really subserves ultimate cause of justice and avoids further litigation".

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