Principles of civil pleading and the legal notice

1. What a pleading is

Order VI Rule 1 defines “pleading” as a plaint or a written statement. Replications and other later pleadings require leave under Order VIII Rule 9. Interlocutory applications, petitions and affidavits are not pleadings in this strict sense, but they are drafted on the same principles.

2. The fundamental rules of Order VI

• Material facts only (Rule 2(1)). State the facts that, if proved, entitle the party to relief: the loan, the date, the amount, the demand, the refusal. Do not plead law. The court knows the law; it needs to know the facts.
• Not the evidence. Plead that the defendant acknowledged the debt on a stated date; do not set out who saw it or reproduce the letter.
• Concise form, paragraphs, dates and sums in figures (Rule 2(2) and (3)). Each allegation in a separate numbered paragraph; dates, sums and numbers in figures as well as words.
• Particulars of fraud, misrepresentation, breach of trust, wilful default and undue influence (Rule 4). A general allegation of fraud is not enough; dates and items must be given.
• Conditions precedent (Rule 6) are implied; the party who says one was not performed must say so distinctly.
• No departure (Rule 7): a later pleading cannot raise a new ground of claim inconsistent with the earlier one, except by amendment.
• Effect of a document (Rule 9) is stated briefly; the document is not copied out.
• Malice, knowledge, intention (Rule 10) may be alleged as a fact without setting out the circumstances from which it is to be inferred.

Courts read pleadings as a whole and without pedantry. In Ram Sarup Gupta v. Bishun Narain Inter College, 1987 INSC 98, (1987) 2 SCC 555, the Supreme Court said pleadings should be construed liberally, looking to substance and not form, since they are often drafted in the mofussil. But substance must be there: in Bachhaj Nahar v. Nilima Mandal, 2008 INSC 1072, (2008) 17 SCC 491, the Court held that a court cannot grant relief on a case that was neither pleaded nor put in issue. What is not pleaded is, for most purposes, not in the case.

3. Signing, address, verification and affidavit

• Rule 14: signed by the party and his pleader, if any.
• Rule 14A: the party must file an address for service.
• Rule 15: verified at the foot by the party (or a person acquainted with the facts), stating by reference to numbered paragraphs what is verified on personal knowledge and what on information believed to be true, with date and place of signing. Rule 15(4), inserted in 2002, requires the person verifying also to furnish an affidavit in support of the pleading.
• Rule 15A: in a commercial dispute the verification must be by a Statement of Truth in the form in the Appendix; an unverified pleading cannot be relied on as evidence and may be struck out.

4. Amendment and striking out

Rule 16 lets the court strike out any matter in a pleading that is unnecessary, scandalous, frivolous, vexatious, tends to prejudice or delay the fair trial, or is otherwise an abuse of process. Rule 17 allows amendment at any stage of matter necessary for deciding the real questions in controversy, but after the trial has commenced only if the party shows that, despite due diligence, the matter could not have been raised earlier. A careful first draft is cheaper than an amendment application.

5. The legal notice

Most litigation starts with a notice. Some notices are optional, sent to demand performance and to show the court that the client acted reasonably. Some are required by law.

• Section 80 CPC: no suit lies against the Government, or against a public officer for an act purporting to be done in his official capacity, until two months after written notice has been delivered (for a State, to a Secretary or the Collector of the district). The notice must state the cause of action, the name and address of the plaintiff and the relief claimed. Section 80(2) allows a suit for urgent or immediate relief with leave of the court, without notice.
• Section 106 of the Transfer of Property Act, 1882: a notice terminating a monthly or yearly tenancy, in writing and signed.
• Section 138 of the Negotiable Instruments Act, 1881: on dishonour of a cheque, the payee must demand payment by written notice within 30 days of receiving information of the dishonour; the offence is complete only if the drawer fails to pay within 15 days of receiving the notice.

Rules for every notice: state the client’s instructions as facts; make the demand exact (sum, act, time limit); state the consequence; keep the tone firm and free of abuse, and do not threaten criminal prosecution as a means of pressing a civil debt; send by registered post with acknowledgment and keep the postal receipts, since service will have to be proved.

6. Model: legal notice demanding repayment of a loan

How this is examined

Pleadings and notices are part of the 15 drafting exercises (45 marks, 3 each) in the record. A legal notice is usually the first exercise of the set; a section 80 notice and a cheque dishonour notice are common additions. At the viva, the classic questions are: define pleading; what are material facts; what is the difference between verification and an affidavit; when can a pleading be amended after trial begins; and what happens if a suit against the State is filed without notice under section 80.