Module 1:
Introduction to Basic Rules of Procedure under CPC, 1908
The Code of Civil Procedure, 1908 is a procedural law, the provisions of which are followed
before the Civil Courts in India. Some of its provisions are substantive in nature and not
procedural at all, like Sections 96, 100, 114 and 115 providing for a right of appeal, review, and
revision. The other provisions are generally procedural in nature. The purpose of the Civil
Procedure Code, 1908 (hereinafter referred to as ‘Code’) is to provide a litigant a fair trial in
accordance with the accepted principles of natural justice. The Code is mainly divided into two
parts, i.e. Body of Code that has different Parts and Sections and the Schedules that have
different Orders and Rules. All Sections are about general principles of power of the court. All
Schedules provide for the procedures, methods and manners in which the jurisdiction of the court
is exercised. 1st Schedule deals with the matters such as pleading, admission, decree, appeals,
revision, etc. Other Schedules, which are 2nd, 3rd, 4th, and 5th repealed after some time.
The Code is a codification of the principles of natural justice. Natural justice means ‘justice to be
done naturally’ which is adopted naturally by the habits of every individual. It does not mean
godly-justice or justice of nature. It simply means an inbuilt- habit of a person to do justice. For
example, if a child of 1,1/2 years breaks the saucer, the mother of the child may slap him being
furious, but at the time of slapping, she would repeatedly ask him why he has broken the saucer,
though she knows that the child has not started speaking. As these principles are inbuilt-habit of
everyone to ask others for furnishing the explanation of anything done by them, the same are
known as ‘principles of natural justice’. In Garden of Eden God did not punish Adam and Eve
without giving them opportunity to show cause as to why they had eaten the prohibited fruit. The
first reported case of principles of natural justice in Dr. Bentely’s case, i.e., R V. University of
Cambridge, (1723) 1 STR 757, wherein reference of the incident of Garden of Eden was made.
The two words are repeated everyday in the courts- ‘justice’ and ‘law’. Justice is an illusion as
the meaning and definition of ‘justice’ varies from person to person and party to party. Parties
feel that they have got justice only and only if the case succeeds before the court, though it may
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not have a justifiable claim. (Vide: Delhi Administration V. Gurudeep Singh Uban, AIR 2000
SC 3737).
Drafting
Drafting is a writing skill for preparing a legal document. In other words, drafting is writing for
which legal skill is required. It can be made for the purpose of writing Legislative Acts,
Ordinance, Deeds, Instruments, Affidavit, Plaint, Written Statement, Petition, etc. A good
drafting is said to be complete if it contains all necessary information. All essential facts should
be provided with clarity, each paragraph should contain one idea, all facts should be presented in
the best and suitable manner, the true meaning of the writer should be conveyed to the reader by
choosing right words at the right place. Simplest words should be used that make a sentence
clear.
Pleading
Pleading is in written form that is filed by each party of a case before court. Pleading is a
specified document that contains either claim of the one party or counter claims of other party
with each other in a case. This case may be civil or criminal. All the details (facts) which the
opponent (each) party of the case needs to know is given through pleading.
In other words, pleading can be defined as a formal statement that requests the court to either
grant a relief or pass a verdict in a dispute. The plaintiff initiates a lawsuit by filing a plaint,
while the defendant will file written statement as an answer/defense to the claims of the plaintiff.
Thus, pleadings are the first documents that the parties file before the court and it may also be
filed in response to the claims of opponent party. For example, pleading may be plaint (in civil
case), complaints (in criminal case), written statement, or replication (reply of written statement).
In totality, other documents are also added often as the trial continues.
Pleading is the backbone of the legal profession (even judicial system). The whole case of the
party stands on pleading. Pleading means plaint or written statement. The whole structure of
pleading, the process adopted for pleading in front of the court of law from initiation of case/suit
to the end stage is followed in accordance with the rules and provisions as mentioned in the Code
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of Civil Procedure, 1908. The aim of pleading is to ensure that the issues in the dispute are
properly detailed to eliminate further delay or expenses.
Fundamental Rules of Pleadings
There are four fundamental rules of pleadings.
1. Pleadings should state facts and not law;
Pleadings Should State Facts and not Law: This is the first fundamental rule of pleadings which
states that provisions of laws or conclusion of laws or both should not be stated in pleadings. It is
the duty of pleader to set out the facts to be relied upon and not set out any legal inference. It is
the responsibility of the judge to make decisions based on the pleas before the court. It is not
enough to allege that the defendant was guilty of misconduct. It’s together; the opinion of
plaintiff shall also have to be described about the cause of action, and the breach of conduct. The
facts establishing these pleas must be raised in the pleading and a point of law can be argued by
a party before the final judgment is delivered. Pleadings should state only facts and not law. In
the case of KedarLal v. Hari Lal, it was held that it is the duty of the parties to state only the
facts on which they rely upon their claims. It is for the Court to apply the law to the facts
pleaded. In the case of GouriDutt Ganesh Lall Firm v. Madho Prasad [10], it was held that the
law of pleading may be tersely summarized in words; “Plead facts not law”. Again, in Union of
India v. Sita Ram Jaiswal [11], the Court held that a point of law, which is required to be
substantiated by facts should be pleaded with necessary facts.
2. The facts stated in pleadings should be of material facts;
The Facts Stated in Pleadings should be Material Facts: Pleadings should contain a statement of
material facts and material facts only. The ‘material facts’ means all facts upon which the
plaintiff’s cause of action or the defendant’s defence depends. All those facts being relied by the
party, which must be proved in order to establish the plaintiff’s right to relief claimed in the
plaint or the defendant’s defence in the written statement. Material facts are all basic and primary
facts which must be proved at the trial by a party to establish the existence of a cause of action or
his defence. What particulars could be said to be ‘material facts’ would depend upon the facts
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and circumstances of each case and no rule of universal application can be laid down. However,
the Evidence Act, 1972 sets out relevancy and admissibility of facts of a case. Material facts
include only relevant words. The pleader after listening to his client about his case must be able
to decide as to which facts are necessary to be narrated and which material facts need not be
omitted. A good lawyer should possess good knowledge of law and must apply his common
sense also to decide which necessary facts are needed in order to achieve the decision of the
court in favour of his client. For example, in case of defamation, the plaintiff must state that the
words or act has been maliciously and defamatory in nature. The actual words, manner of
representation and mode of publication are also necessary to be reflected in the plaint.
3. Pleadings should not state the evidence.
Pleadings should not contain the evidence by which those facts are to be proved. There are two
types of facts, that is, Factaprobandaand Factaprobatia. Factaprobandameans the facts
required to be proved (material facts). Factaprobatiameans evidence available in the form of fact
by which they are to be proved (particulars or evidence).
The pleadings should contain only factaprobandaand not factaprobantia. The difference
between these two terms is that factaprobandaare the material facts on which the plaintiff relies
for his claim or the defendant relies for his defence, whereas, factaprobandaare the facts or
evidence by means of which the material facts are to be proved.
In the case, DevkiNandan vs. Murlidhar ,the court held that a finding cannot be sustained which
is based on no pleading and no evidence. The relief is claimed only as per mentioned in the
pleading.
4. The facts in pleadings should be stated in a concise form.
Statements in pleadings should be stated in a concise and in brief form. And, brevity should not
be done by excluding necessary facts. The care is to be taken at the time of drafting the pleading.
Every pleading shall contain statements in a clear form of the materials on which the party relies
for his claims or defence and not the evidence for which they are to prove. There should not be
ambiguity and weakness in words or sentence of pleading. In totality, facts should be stated in
brief without unnecessary details.
Plaint
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A civil suit is instituted by presenting plaint to the competent court. It is drafted by pleader in
consultation with the client. Plaint is the statement of the plaintiff containing grievances in order
to initiate an action in a court of law. Plaint is the statement of claim in which the plaintiff sets
out his cause of action with all necessary particulars as mentioned in Rule 1 of Order VII of the
Code of Civil Procedure. It helps the court to know more about the real nature of the suit.
Again, the court is empowered to ask plaintiff to file subsequent pleading or reply the answer of
Written Statement (WS) and to fix the time for presenting the same. This subsequent pleading of
plaintiff is called ‘Replication’. It is filed with an objective to know response of the plaintiff
(Order VIII, Rule 9 of CPC).
Written Statement
Written statement is the statement of the defendant in the nature of taking defence by which he
either admits the claim of the plaintiff or denies the allegations made by the plaintiff in his plaint.
Defendant replies through WS to each material fact alleged by the plaintiff in the plaint and the
defendant may also state new facts which may be in his favor through raising legal objection.
Again, the court is empowered to ask defendant to file subsequent pleading or reply the answer
of Replication and to fix the time for presenting the same. This subsequent pleading of defendant
is called ‘Rejoinder’. It is filed with an objective to know response of the defendant.
CONCLUSION
At the commencement of the lawsuit, pleadings are filed. The case of a party stands on pleading.
That is why; pleading is called the backbone of legal profession. The pleading has its importance
through the whole process of the litigation. It is the documents on whose basis decisions,
judgments or justice is provided to the parties of the case. That is why, a chance to the parties of
the case for amendment in pleading is also provided in case where the party of the case either
omits to add necessary material facts or not filed in proper format or otherwise.
Pleading contains those essential facts or material things that lead to claim or defence in the
judicial proceeding. Pleading is filed formally by each party to the case indicating their
contentions and relief sought from the court. Order VI of CPC is about fundamental rules of
pleading and other rules of pleading; both of which make complete understanding of the
pleading.
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