Subject DRAFTING, PLEADING AND CONVEYANCING

Topic- PLEADING
(Special Back Paper Project)

Submitted to :

Submitted by
Pulkit Pareek
B.A.LL.B(9th Sem)

Content
1. Introduction
2. Pleading
3. Plaint
4. Suit for an account against an Agent
5. Conclusion

ACKNOWLEDGEMENT

I take immense pleasure in thanking

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.

PLEADING: INTRODUCTION
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

opponents 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. (AIR 1930 PC 57, AIR 1966 SC 1861, `1984 KLT 606,AIR
1958 SC255, AIR 1996 SC 112, AIR 1987 SC 1242)
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
16(c) and 22. Certain defence would be available to a defendant, in the light of the provisions of
a statute. Such defence 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 defence, taken into account the relevant provision of law. The
role of the lawyer is very important in that context.
Pleading is defined in Order VI Rule 1 CPC thus: Pleading shall mean plaint or written
statement.
Every suit shall be instituted by the presentation of a plaint of in such other manner as may be
prescribed. (Section 26 Order IV Rule 1 and Order VII Rule 1 of CPC). Before drafting the
plaint, it should be ascertained as to who may be joined as plaintiffs and who may be joined as

defendants. (See Rules 1 and 3 of Order 1 CPC) It shall not be necessary that every defendant
shall be interested as to all the relied claimed in any suit against him. (Rule 5 of Order I). The
plaintiff may at his option join as parties to the same suit all or any of the persons severally or
jointly liable on any one contract. (Rule 6 of Order 1 CPC). Where the plaintiff is in doubt as to
the person from whom he is entitled to obtain redress he may join two or more defendants so that
the question to which of the defendants is liable would be determined by the court as between all
parties. (see Rule 7 of Order II)Where there are numerous persons having the same interest in
one suit, Rule 8 of Order I provides for the remedy of a representative suit being filed. The
representative suit can be on behalf of the plaintiff or against defendant. Rule 8 of Order I
provides for the procedure in such suit. There are restrictions for abandoning, withdrawing or
compromising such suits. A decree passed in a representative suit binds all persons on whose
behalf or for whose benefit the suit is instituted or defended. (see Explanation VI to Section 11
CPC).Rule 1 of Order II provides that very suit shall as far as practical be framed so as to afford
ground for final decision upon the subjects in dispute and to prevent further litigation, Rule 2 of
Order II has give rise to several judicial pronouncement. Rule 2 provides that every suit shall
include the whole of the claim which is entitled to make in respect of the cause of action.
However, the plaintiff is free to relinquish any portion of claim; but if he so relinquishes or omits
to sue on any portion of such claim, he shall not be entitled to file another suit in respect of that
portion which omitted or relinquished. Special care should be taken to see that all the claims to
which the plaintiff is entitled to in respect of the cause of action are sought for in the plaint.
Rule 3 of Order II CPC provides for joinder of cause of action in the same suit. Rule 4 of Order
II stipulated what all causes of action casn 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 claim. 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 defence, 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. (Order VI Rule 2). 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. (Order VI Rule$). The burden of proof of
misinterpretation, frauds and undue influence is on the party who alleges the same. ( See AIR
1976 SC 712; AIR 1941 PC 93; AIR 1950 PC 90; AIR 1967 SC1395; 1989 (2) KLT 348; AIR
1975 KER 150; 1986 KLT S.N.38; 1988 (2) KLJ 156; 1997 (1)KLT 656; 20120 (4) KHC 927;
2010 (4) KLT 684)Any condition precedent, the performance of occurrence of which is intended
to be contested, shall be distinctly be specified in the pleadings. (Rule 6 Order VI). 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 (Rule 7 Order VI). The
provision for amendment of pleadings is contained in Rule 17 of Order VI. It is tue 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. See the distinction between Order VI Rule 17 of CPC
and the provisions to section 22(2) of the Specific Relief Act: 2011(2) KLT 381.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 (Rule 16 Order VI).

The defendant shall within thirty days from the date of service of summons on him, present a
written statement of his defence. The court has power to extend the time upto 90 days from the
date of service of summons, under the proviso to Rule 1 of Order VIII. Rule 1 of Order VIII was
substituted by the CPC Amendment Act 49 of 1999 and further substituted by CPC Amendment
Act 22 of 2002. The Supreme Court held in 2008 (17) SCC 117 that the provision is procedural
and it does not affect the power of the court to take the written statement on record after 90 days.
The defendant shall produce along with the written statement, the documents on which he relies.
(Rule 1A of Order VIII)Wherever a denial of claim, or facts upon which the claim is founded is
to be made such denial should be specific. If there is only a value denial, the court shall take as
admitted the facts which is not specifically denied. (Rule 3 to 5 of Order VIII) (See 1960 KLT
348; 1972 KLT 74;AIR 1964 SC 538; AIR 1967 SC 109)Rule 6 of Order VIII relates to set off
and Rules 6A to 6G relate to counter claim. Rules 7and 8 apply to set off and counter claim In
cases where set off or counter claim could be raised within the period of limitation and in the
manner prescribed in the aforesaid Rules. Section 3(2)(b) of the Limitation Act provides that in
that in the case of set off it shall be deemed to have been instituted on the same date as the suit to
which the set off is pleaded; and in the case of counter claim, it shall be deemed to have been
instituted on the date on which the counter claim is made in court. The lawyers should also see
that the suit is filed within the period of limitation. If there is an acknowledgment of liability
coming within the meaning of section 18 of limitation act or payment within the meaning of
section 19 of limitation act, it should be specifically pleaded. The lawyer shall also keep in mind
the provisions of the limitation act while preparing and presenting the pleadings. All the relevant
statutes on the subject should be comprehended and applied while drafting the pleadings. If the
suit is by or against the Government of India or public officers, the procedure under Order

XXVII will apply. Procedure for suits by or against Military or Naval men or Airmen iscontained
in Order XXVIII. Order XXIX provides for suits by or against Corporations; Order XXXI deals
with suits by or against Trustees, Executors and Administrators; Order XXXII deals with suits by
or against minors and persons of unsound mind; Order XXXIII provides for procedure in suits by
indigent persons; Order XXXIV deals with suits relating to mortgages of immovable property;
Order XXXV deals with inter pleader suits and Order XXXVII provides for the procedure for
Summary suits. The provisions of these Orders, whichever is applicable to case on hand, should
be adverted to and comprehended by the lawyer before drafting the pleadings. If a special statute
provides for a period of limitation different from the period provided for in the Schedule to the
Limitation Act, care should be taken to see that the suit coming under the special statute is filed
within the time prescribed therein. See Section 29(2) of the Limitation Act. The amendment
made by the CPC Amendment Act 49 of 1999 and CPC Amendment Act of 22 of 2002 shall also
be borne in mind. See the amendments to section 26, Rules 5,15,17 and18 of Order VI; Rules
9,11,14,15 and 18 of Order VII and Rules 1,1A,9 and 10 of Order VII; Rule 2 of Order IX.
Before actual trial of the case, several interlocutory applications arises in a suit. A suit may be
dismissed for default or decree exparte. For restoration of the suit dismissed for default and for
setting aside exparte decree, procedure has been prescribed in Order IX. Interlocutory
Applications may arise for; Discover and Inspection (Order XI); Production of documents
(OrderXIII); Summoning of witnesses (Order XVI); Adjournments (Order XVII); Impleading
Representatives of deceased parties (Order XXII); Commissions for local investigation, for
examination of witnesses, to examine accounts and to effect partition (Order XXVI), Arrest and
attachment before judgment ( Order XXXVIII), Temporary injunctions and interlocutory
orders(Order XXXIX), appointment of Receivers (Order XL) etc. Interlocutory applications also

require proper drafting. Care should be taken to prepare affidavits containing the relevant
averments in support of such Interlocutory Applications. The provisions of the Kerala Civil
Courts Act and the amendments thereto should be borne in mind of the question of pecuniary
jurisdiction of the Subordinate Courts and for deciding in which court the suit or appeal should
be filed. It is necessary to study the Kerala Court Fees and Suits Valuation Act and Civil Rules of
Practice, Kerala. Drafting of pleadings is an art. Intense study of Code of Civil Procedure and
other laws relevant for the subject of the case is required to acquire the skill.

PLAINT
The plaint is a document for instituting a suit in the proper court of law. It is a very important
document which is drafted by a pleader in consultation with his client. A client suit shall be
instituted by presenting a plaint to the court. There are different grades of courts in a state
according to pecuniary, territorial or other exclusive jurisdiction with regard to the subjectmatter. Every suit shall be instituted in the competent court.
The plaint is the basis of preferring ones claim in a court of law and hence it is a very important
document. Therefore, before framing a plaint it is essential to ascertain as to what particular are
necessary to include. Order VII, Rule 1 of C.P.C. is relevant in this context which runs as
follows:

The plaint shall contain the following particulars:

(a)

The name of the court in which the suit is brought;

(b)

The name, description and place of residence of the plaintiff;

(c)

The name, description and place of the defendant, so far as they can be ascertained;

(d)

Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement

to that effect;
(e)

The facts constituting the cause of action and when it arose;

(f)

The facts showing that the court has jurisdiction;

(g)

the relief which the plaintiff claims;

(h)

where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount

so allowed or relinquished; and

(i)

a statement of the value of the subject-matter of the suit for the purposes of jurisdiction

and of court-fees, so far as the case admits.

A pleader has to ensure that the plaint must contain the above particulars as per the provisions of
law.
It is also pertinent to know that civil suits are dealt with as per the provisions of the code of civil
procedure, 1908. The code of criminal procedure, 1973 contains the provisions for the criminal
cases. For Renvenue cases the provisions of U.P. Zamindari Abolition and land Reforms Act are
applicable.

The particulars of the plaint are being dealt with one by one in the following manner:
(a)

Name of the Courts

(b)

Description of Plaintiff

(c)

Description of Defendant

(d)

Plaintiff as Minor or Person of Unsound Mind

(e)

Facts constituting the cause of action

(f)

Courts of jurisdiction

(g)

Relief

Signing and Verification

IN THE COURT OF CIVIL JUDGE SENIOR DIVISION AT
ALLAHABAD
Suit No of 2015

A s/o B, aged about 51 years,

occupation, business, residing at 10,
Geeta Colony, Allahabad

Plaintiff

Versus

C s/o D, aged about 45 years,

occupation, business, residing at 5,
Gopal Nagar, Allahabad

Defendant

Suit for an account against an Agent

The plaintiff states as follows:
1. That he appointed the defendant as his agent on.. to collect rents
from his tenants, to pay rates and taxes, due in respect of the buildings from him,
to effect repairs thereto, and to file suits and take other proceedings in connection
with realization of rent.
2. That to effectuate and facilitate, the aforesaid purpose, the plaintiff executed a
general power-of-attorney, dated.. in favour of the defendant. The
defendant was to be paid 7 percent commission on such realization after
deducting the expenses or outgoings.
3. That the plaintiff terminated the agency of the defendant by notice sent to him by
registered post on

4. That the defendant has not rendered account of his realizations and disbursement
as from to
5. That it is not possible to ascertain the exact sum due from the defendant to the
plaintiff in respect of the business of agency conducted by the defendant. It is
also not known to the plaintiff as to what sums the defendant has allowed to
become time- barred on account of his negligence to take action for realizations
thereof within time prescribed by law. The plaintiff is according entitled to a
rendition of accounts of accounts from the defendant and to payment of the sum
due to the plaintiff from defendant.
6. That the cause of action arose at where the defendant resides or
works for gain within local limits of jurisdiction of this courts on
when the agency of the defendant was terminated. The agency was to be
conducted at Hence the Court has jurisdiction.
7. The value of the suit for the purpose of court-fee and jurisdiction is tentatively
fixed at. If any larger sum is found due to the plaintiff,
deficiency in court-fee will be paid. The abovementioned sum is stated to be sum
due tentatively under Order VII, Rule 2 of the Code of Civil Procedure.
8. It is Prayed that a decree for rendition of accounts from..
to in relation to the business of the agency be passed in favour of the
plaintiff against the defendants. The books of the agency and other papers and
documents and registers appertaining thereto be ordered to be delivered to the
plaintiff. A commissioner be appointed to examine the accounts of the defendant.
The sum found due to the plaintiff from the defendant be directed to be paid to
the plaintiff. Costs of the suit be also award to the plaintiff.

Place
Date.

SdAdvocate

SdPlaintiff

Verification.- I, A, s/o B, the above named plaintiff, do hereby verify that the
contents of para nos. 1-5 e true to my personal knowledge and the contents of the
remaining paras are based on legal advice from my Advocate which I believe to
be true
Place..
Date...

SdPlaintiff