LAW REGARDING DRAFTING OF PLEADING
- Must Read: law-of-pleading-part-2.html
1. Pleading to state material facts and
not evidence
Every pleading shall contain only, a statement in a concise form of the
material facts on which the party pleading relies for his claim or defense, as
the case may be, but not the evidence by which they are to be proved, and
shall when necessary, be divided into paragraphs, numbered consecutively. Dates,
sums, and numbers shall be expressed in figures.
- Must Read: law-of-pleading-part3.html
EXPLANATION
The rule that material facts should be pleaded is not a mere technicality
and of an omission to observe it deprives the pleadings of most of their value
and may increase the difficulty of the Court’s task of maintaining the rights
of the parties.
The principle is that a fact has to be alleged in pleadings before it is
allowed to be proved, and a party cannot be allowed to prove a case different
from what has been pleaded as regards a case not set up by him (plaintiff) in
his plaint.
Totally inconsistent pleas cannot be allowed. The incomplete plea is more
objectionable than in a precise plea and may be fatal to the cause of action. Such a plea
cannot be made whole by leading evidence of its missing parts.
Plea of forgery cannot be taken into consideration unless its particulars
are set out.
Prolix, frivolous, and scandalous pleadings constitute contempt of the Court.
A pleading must not set forth the relevant statute because the Court is
bound to take judicial notice of it. It is bad pleading to allege merely that a
right or a duty exists:
“The facts must be set out
which give rise to the right or create the duty”.
Where the plaintiff claims by inheritance, it is not sufficient to say “I
am the heir at law”. He must state the particulars showing the links of
relationship on which he relies as constituting him such heir”.
A defendant may not in his written statement merely say, “I am not liable”.
He must allege facts that show that he is not liable and if privilege is
claimed the facts giving rise to privilege must be stated.
It is absolutely essential that the pleadings, not to be embarrassing to
the defendant, should state those facts which will put the defendants on their
guard and tell them what they have to meet when the case comes on for trial.
Facts emerging plainly and easily from the clear and unambiguous language
employed in pleadings cannot be allowed to be resiled by urging that the
pleadings be construed liberally. Party cannot prove a case different from what
has been pleaded.
Lack of precision in pleadings, however, has to be ignored. The Law of
pleadings have never been strictly construed and rigorously applied in all its
technicalities in this country as plaint and petitions drafted, especially in
the mofussil suffers from various minor defects. A very strict view in that
regard to the substance of matter would defeat the ends of justice.
A plaint drafted by Mofussil lawyers would, therefore, be construed
liberally.
When a state of facts is relied on, it is enough to allege it simply,
without setting out the subordinate facts which are the means of producing it
or the evidence sustaining the allegation. Thus in a suit on an insurance
policy against an insurance company where one of the conditions of the policy
is that it shall void should be insured commit suicide. It would be wrong to
state in the written statement that the defendant had been melancholy for
several weeks that he bought a pistol from the such and such shop situated in such
and such Bazar, and shot himself with it.
The pliant should not be drafted in the form of a continuous narrative but should be split up into paragraphs and numbered consecutively. The dates, sums, and numbers should be expressed in figures although it would not be wrong and perhaps even better, to express the sums in words as well.