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Pleadings and its essentials

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Pleadings and its essentials

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Pleadings and its essentials

  1. 1. 1 English for Special Purposes Pleadings and Its Essentials Submitted To: Mr. Habeeb Anwar Submitted by: Wajid Ali 4451/FSL/LLB-F15
  2. 2. 2 Contents Introduction ...................................................................................................................................... 3 Meaning of Pleadings ........................................................................................................................ 3 What is Pleadings? ............................................................................................................................ 4 Types of Pleadings............................................................................................................................. 5 Plaint............................................................................................................................................. 5 Written Statement ........................................................................................................................ 5 Rejoinder....................................................................................................................................... 5 Additional Written Statement........................................................................................................ 6 Object of Pleadings............................................................................................................................ 6 The Purpose of Pleadings................................................................................................................... 6 Forms of Pleading.............................................................................................................................. 7 Amendment of Pleadings............................................................................................................... 8 Conditions of amendment of Pleadings ......................................................................................... 8 Things for which amendments in pleadings are not allowed: ......................................................... 8 Illustrations: .................................................................................................................................. 9 Essentials of a Plaint.......................................................................................................................... 9 Order 7, Rule 1 Order 7 of CPC lays down that a plaint must contain the following particulars....... 9 Order 6, Rule 2 of Order 6 of CPC provides following as to the ingredients of pleadings............... 11 Rules of pleading............................................................................................................................. 12 Fundamental rule ........................................................................................................................ 13
  3. 3. 3 Introduction Pleading is the beginning stage of a lawsuit in which parties formally submit their claims and defenses. The plaintiff submits a complaint stating the cause of action -- the issue or issues in controversy. The defendant submits an answer stating his or her defenses and denials. The defendant may also submit a counterclaim stating a cause of action against the plaintiff. Pleadings serve an important function of providing notice to the defendant that a lawsuit has been instituted concerning a specific controversy or controversies. It also provides notice to the plaintiff of the defendant's intentions in regards to the suit. Old common law rules of pleading were complicated and rigorous. Meritorious complaints were often thrown out of court for technical flaws in form rather than substance. Today, in most if not all states, a pleading must no longer conform to archaic formats but may be a simple petition or complaint setting forth the relevant facts and asking for a remedy.1 Meaning of Pleadings  The act of a person who pleads.  The advocating of a cause in a court of law.  The art or science of setting forth or drawing pleas in legal causes. 1 https://www.law.cornell.edu/wex/pleading
  4. 4. 4  A formal statement, usually written, setting forth the cause of action or defense of a case.  Pleadings, the successive statements delivered alternately by plaintiff and defendant until the issue is joined.2 What is Pleadings? The peculiar science or system of rules and principles, established in the common law, according to which the pleadings or responsive allegations of litigating parties are framed, with a view to preserve technical propriety and to produce a proper issue. The process performed by the parties to a suit or action, in alternately presenting written statements of their contention, each responsive to that which precedes, and each serving to narrow the field of controversy, until there evolves a single point, affirmed on one side and denied on the other, called the “issue,” upon which they then go to trial. The act or step of interposing any one of the pleadings in a cause, but particularly one on the part of the defendant; and, in the strictest sense, one which sets up allegations of fact in defense to the action. The name “a pleading” is also given to any one of the formal written statements of accusation or defense presented by the parties alternately in an action at law; the aggregate of such statements filed in any one cause are termed “the pleadings.” The oral advocacy of a client’s cause in court, by his barrister or counsel, is sometimes called “pleading;” but this is a popular, rather than 2 http://www.dictionary.com/browse/pleading
  5. 5. 5 technical, use. In chancery practice. Consists In making the formal written allegations or statements of the respective parties on the record to maintain the suit or to defeat it, of which, when contested in matters of fact, they propose to offer proofs, and in matters of law to offer arguments to the court.3 Types of Pleadings Plaint Plaint is the statement of claim in writing and filed by the plaintiff, in which he sets out his cause of action with all necessary particulars. Plaint is the first process in inferior court in the nature of an original writ, whereby a party seeks remedy from court for the redressed of his grievances. Written Statement Written statement is the statement of defense in writing and filed by the defendant, in which he deals with every material fact alleged by the plaintiff in the plaint. Defendant can state any new facts, which he considers to be in his favor, and can raise legal objections to the merits of the case, prescribed by various laws e.g. plea of limitation , plea of estoppels, plea of res-judicata etc. Rejoinder Rejoinder means answer of the plaintiff, which he gives keeping in view new facts alleged by the defendant in written statement. 3 http://thelawdictionary.org/pleading/
  6. 6. 6 Additional Written Statement It means further answer of the defendant, ( if court permits) which he gives in light of rejoinder. Object of Pleadings The object of pleading is to bring the parties to an issue and purpose of the rules relating to pleading is to prevent the issue beige enlarged. Further that the parties themselves know what are the matters in dispute and what facts they have to prove at the trial. The Purpose of Pleadings The primary purposes of the pleading may be stated as follows: a. To define with clarity and precision the issues or questions of fact and law which are in dispute between the parties and that are to be decided by the court. b. To provide the opposite party fair and proper notice of the case that it has to meet. c. To provide a permanent record of the issues and questions raised and to be decided in the action so as to prevent future litigation upon issues already adjudicated upon between the parties or those persons privy to them. d. To limit the ambit and range of documentary discovery.
  7. 7. 7 e. To limit the ambit and range of oral examination for discovery. f. To allow for the determination as to whether a reasonable cause of action or defense is disclosed. g. To fix the burden of proof. h. To provide a measure for the court to compare the evidence adduced by a party with the case which has been pleaded . i. To determine the range of admissible evidence which the party is entitled to adduce at the trial. j. To advise of the relief being requested not only must your pleading do all that, but it also provides the opportunity to integrate your theory of the case. By setting out the facts and the legal basis for the relief claimed in a cohesive manner, you can market the "more plausible explanation of what really happened" to the court.4 Forms of Pleading Rule 3 of Order VI of CPC provides the forms of pleading. The forms in Appendix A when applicable, and where, they are not applicable, and where they are not applicable forms of the like character, as nearly as may be, shall be used for all pleadings. 4 Supra note 3 at 17.
  8. 8. 8 Amendment of Pleadings A civil suit starts with the presentation of plaint and for the purpose of defending the defendant submits his written statement. Order VI, Rule 1, in this regard stipulate that by pleading is meant only the plaint and written statement. Conditions of amendment of Pleadings Following conditions are to be full filled for the grant of amendment of pleadings: 1) That the amendment is necessary for the resolution of disputes between the parties. 2) That there exist to possibility from the amendment to be harmful to anyone of the parties. 3) That the time, which is needed for the amendment would not cause damage to any legal right of the defendant. 4) That the amendment does not in any way lead to any new proceeding. 5) That there must exist bona – fide belief on the part of the person who comes for the amendment. Things for which amendments in pleadings are not allowed: 1. Where there amendment changes the nature of suit.
  9. 9. 9 2. Where new relief is added or asked. 3. Where new cause of action is arisen by new application. Illustrations: A being threatened to be dispossessed from his inherited property by B field a suit against B claiming in his plaint declaratory decree and permanent injunction relating to such property. Afterwards, during the continuation of suit, A lost the right of possession by B. And then, he wanted to add that matter in the plaint and the court granted it. This is considered as the amendment of plaint. Likewise, written statement can also be amended. Essentials of a Plaint Order 7, Rule 1 Order 7 of CPC lays down that a plaint must contain the following particulars Pleading refers to plaint and written statement. In plaint, plaintiff should allege facts about his cause of action. In fact, plaint consists of some contents, and it is mandatory that such contents should be present in plaint;  Plaint should contain name of that court in which suit is brought.  Plaint should contain name, description and residence of plaintiff.  Plaint should contain name, description and residence of defendant.  When plaintiff or defendant is minor or person of unsound mind, plaint should contain a statement to that effect.
  10. 10. 10  Plaint should contain those facts, which have constituted cause of action. In addition to this, it should also be described in plaint when cause of action has arisen.  Plaint should contain those facts, which show the court has jurisdiction.  Plaint should contain that relief, which plaintiff claims.  When plaintiff has allowed set off or has relinquished a portion of his claim, plaint should contain that amount, which has been so allowed or so relinquished.  Plaint should contain statement of value of subject-matter of suit not only for purpose of jurisdiction, but also for purpose of court-fees.  Plaint should contain plaintiff’s verification on oath. In some specific cases, in addition to the above, the plaint should contain the following specific particulars also:  If the suit is for recovery of money, the plaint should contain the exact amount claimed. If the suit is for manse profit, or for an amount which will be due on taking accounts or a debt the value whereof cannot be estimated with reasonable diligence, the approximate amount may be stated instead of the exact amount.  If the suit is for immovable property, the plaint should contain a proper description sufficient to identify such property along with boundaries, survey numbers, etc., wherever possible;
  11. 11. 11  Where the plaintiff files a suit of a representative character, the plaint must show not only that he has an actual existing interest in the subject matter of the suit, but also that he has taken the necessary steps to enable him to file such a suit;  If the suit if filed after expiry of the limitation period, the plaint must state the ground on which exemption from the law of limitation is claimed;  Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded on separate and distinct grounds, they should be stated separately and distinctly.  The plaint must state specifically the relief claimed by the plaintiff, either simply or in the alternative.5 Order 6, Rule 2 of Order 6 of CPC provides following as to the ingredients of pleadings.  Pleading should state facts and not law.  The facts should be material facts.  Pleadings should not state the evidence.  The facts should be stated in a concise for.  Dates, sums and numbers shall be expressed in figures. 5 http://nasirlawsite.com/llb3/pleading.htm
  12. 12. 12  Names of parties should be consecutive members and a separate line should be allotted to the name and description of each person.  Pleading or petition shall be written legibly and Bengali dates should be followed by corresponding English dates.  Pleadings and petitions shall be signed by the person writing or typing stating the capacity in which he writes or types and if he is the registered clerk of an advocate, his registered number.6 Rules of pleading Following is guidance for drafting pleadings. 1. Whole facts: State or write your whole case in your pleadings, i.e., all the material facts on which you relies for your claim or defense. 2. Avoid law: Do not cite or write the law. Only write/state/cite the facts in your pleading. 3. Avoid evidence: Do not state the evidence by which such facts are to be proved. Evidence may either be oral, written, documentary, or circumstantial etc. 4. Avoid anticipation: Do not anticipate opponent’s pleading and plead to anything, which is not alleged against you. 6 http://nasirlawsite.com/llb3/pleading.htm
  13. 13. 13 5. Be concise: State your facts concisely and precisely. 6. Avoid arguing: Do not argue in the pleadings. Fundamental rule Order 6, Rule 2 is the fundamental rule of pleading. When analyzed, it will be found to require four things; 1. Every pleading must state facts and not law. 2. It must state material facts and material facts only. 3. It must state only the facts on which the party pleading relies for his claim or defense, and not the evidence by which they are to be proved. 4. It must state such facts in a concise form.7 7 http://nasirlawsite.com/llb3/pleading.htm

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