HOW TO DRAFT A PLAINT
It is a
settled law that if a person want justice must comes with clean hands. A
person whose case is based on falsehood has no right to approach the Court.
This basic principle of law must be in mind while drafting or preparing a
plaint."It is well settled position of law that the whole object of
pleading is to give fair notice to each party of what the opponent's case is,
and to ascertain, with precision, the points on which the parties agree and
those on which they differ, and thus to bring the parties to a definite issue.
The purpose of pleading is also to eradicate irrelevancy. In order to have a
fair trial it is imperative that the party should state the essential facts so
that other party may not be taken by surprise. The parties thus themselves know
what are matters left in dispute and what facts they have to prove at the
proceeding and are thus given an opportunity to bring forward such evidence as
may be appropriate. The main object of pleadings is to find out and narrow down
the controversy between the parties. Contention which are not based on the
pleadings cannot be permitted to be raised either at the time of arguments or
at the appellate stage."The New India Assurance Co. Ltd. vs. Surender
singh & others. (HC) UAD 2007, 423.
Order VI
Rule 1 to 18 of civil procedure code deals with the pleading generally. Order
VII rule 1 deals with the requirement of the plaint. It provides what
particulars must be in the plaint.
For our
convenience we can divide the plaint in three parts:
(1)
The Heading and Title
(2)
The Body
(3)
The Relief
(1) The
HEADING:- The plaint should begin with the name of the court in which the suit
is brought, Rule 1 (a), Order VII
For
example,
“In the
court of district judge at Dehradun”.
After
the name of the court, in the next line the number of the suit and the year to
be written in the following manner,
“Suit
No…………of 2013”, or
“Original
Suit No…………..of 2013”.
Note:-place
for number should be left blank, which will be filled by the court officials.
THE
TITLE:- After the heading, title should be written as per Rule 1 (b), Order
VII. It contains the name , description and place of residence of the plaintiff.
Note:-
Plaintiff may be one or more and addresses may be different, true details of
each of the plaintiff should be given. The word “Description” includes the name
of father and other particulars of the plaintiff. The main purpose is to
identify the plaintiff. The plaintiff may be minor or a person of unsound mind.
A detailed statement regarding this must be given in the plaint (Rule 1 (d)
Order VII), because a minor or insane person cannot sue or be sued. He can only
sue or be sued through next friend (who may act as a next friend or be
appointed guardian for the suit see Order XXXII Rule 1 and 4 CPC).Where there
are several plaintiffs, a serial number should be given to each of them.
After
the name of the plaintiff, name of the defendant or defendants should be
written as per Rule 1(c), Order VII. And father’s name and place of residence
of each of the defendant should be given , if there are several defendants, a
serial number should be given to each of them.
Note:-
Defendants against whom no relief is claimed may be added as Performa
defendants and written in the last and a statement in this regard must be given
in the plaint that why these persons or person added as Performa defendants.In
case of minor defendant or a person of unsound mind, A detailed statement
regarding this must be given in the plaint (Rule 1(d), Order VII.), because a
minor or a person of unsound mind cannot be sue or sued. He can only sue or be
sued through guardian ad litem, the Court shall appoint a proper person to be
guardian for the suit for such minor under the procedure prescribed in Order
32, Rule 3.
Form of
the title is given below:
The
forms are given in Appendix A of the Code of Civil Procedure. Order 6 Rule 3
provides, the forms in appendix A when applicable, and where they are not
applicable forms of the like character, nearly as may be, shall be used for all
pleadings. These forms shows that a statement as to when the cause of action
arose and the court has jurisdiction may be written jointly in one paragraph.
General:-
1.“A B,
son of ……………………r/o………………………..
2…………
3…………
Plaintiffs".
Versus
1.“C D,
son of…………………………..r/o………………………
2…………
3………….
Defendants".
In case
of minor and unsound mind person,
1.”A B,
son of………………………r/o………………………, a minor, by C D, son of………………………….r/o……………….his
next friend…………
2………………
3……………..
Plaintiffs.”
versus .
1. E F,
son of……………………r/o…………………………, a minor, through his guardian GH, son
of……………………r/o…………..................., appointed by the order of the court (name
of the court etc )
Defendant.”
Or
In case
of a Joint Hindu Family:
1.“A B,
son of ……………………….., r/o…………………………., as manager (Karta) of a Joint Hindu
Family.”
Or
In case
of representative suit:
1.”A B,
son of…………………….., r/o……………………………………….., suing on behalf of himself and of all
the Sikh resident of the village…...(name of the village)……….”
Or
In case
of Trust
1. “A B,
son of…………………………, r/o ……………………………………………., managing trustee Kalumal dharmshala
etc”
2. The
Body.
This is
the most important part of the plaint. It can be divided into short paragraph.
All the facts related to the claim of the plaintiff must be written here in
details. Order VII, Rule 1 (e) requires that the plaint shall contain “the
facts constituting the cause of action and when it arose”. Basically it
contains two part, under the first part of this clause are all the facts, on
the basis of which plaintiff claims his case, in other words each and every
fact which is necessary for the plaintiff to prove to enable him to get a
decree should be set out in clear terms and in the second part of the clause is
“when cause of action arose.”? It is related to the date of cause of action.The
meaning and definition of the cause of action is given in side bar of the page
under the heading NOTES.
Date of
Cause of Action: The exact date of the cause of action as far as possible
should be given in the plaint. Where, however, the exact date is not known,
plaintiff can mention the near about date when cause of action accrued. The
main object to mention the date of cause of action is to ascertain whether the
suit is within limitation or not.
Jurisdiction:
Section 15, 16, 17, 18, 19 and 20 of the civil procedure code lay down the
rules for the purpose of jurisdiction. Section 15 provides "every suit
shall be instituted in the court of the lowest grade competent to try it".
Section 16 provides the provision regarding institution of suit of immovable
property and for the recovery of movable property actually under distraint or
attachment, it says all the suits relating to immoveable property or for
recovery of movable property under distraint or attachment shall be instituted
in the court within the local limits of whose jurisdiction the property is
situate, subject to the pecuniary or other limitations prescribed by any law.
Provided
that a suit to obtain relief respecting , or compensation for wrong to,
immovable property held by or on behalf of the defendant, may where the relief
sought can be entirely obtained through his personal obedience be instituted
either in the Court within the local limits of whose jurisdiction the property
is situate, or in the Court within the local limits of whose jurisdiction the
defendant actually and voluntarily resides, or carries on business, or
personally works for gain.
Explanation.-
In this section “property” means property situate in India.
Where
the immoveable property is situate within jurisdiction of different courts, the
suit may be instituted in any court within the local limits of whose
jurisdiction any portion of the property is situate. (see section 17 of the
code.)
In case,
where local limits of jurisdiction of Courts are uncertain, sub section (1) of
Section 18 of the code provides, "where it is alleged to be uncertain
within the local limits of the jurisdiction of which of two or more Courts any
immovable property is situate, any one of those courts may, if satisfied that
there is ground for the alleged uncertainty, record a statement to that effect
and thereupon proceed to entertain and dispose of any suit relating to that
property, and its decree in the suit shall have the same effect as if the property
were situate within the local limits of its jurisdiction :
Provided
that the suit is one with respect to which the court is competent as regards
the nature and value of the suit to exercise jurisdiction".
Suits
for compensation for wrongs to person or movable--Section 19 of the Code
provides “Where a suit is for compensation for wrong done to the person or to
movable property, if the wrong was done within the local limits of the
jurisdiction of one Court and the defendant resides, or carries on business, or
personally works for gain, within the local limits of the jurisdiction of
another Court, the suit may be instituted at the option of the plaintiff in
either of the said Courts.
Illustrations
(a) A,
residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in
Delhi.
(b) A,
residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue
A either in Calcutta or in Delhi".
Other
suits to be instituted where defendants reside or cause of action
arises—Section 20 of the Code provides “Subject to the limitations aforesaid,
every suit shall be instituted in Court within the local limits of whose
jurisdiction—
(a) the
defendant, or each of the defendants where there are more than one, at the time
of the commencement of the suit, actually and voluntarily resides, or carries
on business, or personally works for gain; or
(b) any
of the defendants, where there are more than one, at the time of the
commencement of the suit actually and voluntarily resides, or carries on
business, or personally works for gain,
Provided
that in such case either the leave of the Court is given, or the defendants who
do not resides, or carry on business, or personally work for gain, as
aforesaid, acquiesce in such institution; or
(c) the
cause of action, wholly or in part, arises.
[Explanation].—A
corporation shall be deemed to carry on business at its sole or principal
office in India or, in respect of any cause of action arising at any place
where it has also a subordinate office, at such place.
Illustrations
(a) A is
a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in
Calcutta, buys goods of A and requests A to deliver them to the East Indian
Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for
the price of the goods either in Calcutta, where the cause of action has arisen
or in Delhi, where B carries on business.
(b) A
resides at Simla, B at Calcutta and C at Delhi. A, B and C being together at
Benaras, B and C make a joint promissory note payable on demand, and deliver it
to A. A may sue B and C at Benaras, where the cause of action arose. He may
also sue them at Calcutta, where B resides, or at Delhi, where C resides; but
in each of such these cases, if the non- resident defendant object, the suit
cannot proceed without the leave of the court.
Valuation
of Suit : THE SUITS VALUATION ACT,1887 deals with the mode of valuing certain
suits for the purpose of determining the jurisdiction of the Court. It is the
duty of the plaintiff to write clearly and separately in his plaint the
valuation of his claim for the purpose of court fees and of jurisdiction.
Court
fee : Court fees are payable according to the provision of THE COURT FEES ACT,
1870
Relief :
(a)
........................................................
(b)
........................................................
(c)
..........................................................
Note:-
When there is no prayer for a particular relief and no pleadings to support
such a relief, and when defendant has no opportunity to resist or oppose such a
relief, if the court considers and grants such a relief, it would lead to
miscarriage of justice. Thus it is said that no amount of evidence, on a plea
that is not put forward in the pleadings, can be looked into to grant any
relief.
“that a
case not specifically pleaded can be considered by the court only where the
pleading in substance, though not in specific terms, contain the necessary
averment to make out a particular case and the issues framed also
generally cover the question involved and the parties proceed on the basis that
such case was at issue and had led evidence thereon. As the very requirement
indicate, this should be only in exceptional cases where the court is fully
satisfied that the pleading and issues generally cover the case subsequently
put forward and that the parties being conscious of the issue, had led evidence
on such issue. But where the court is not satisfied that such case was at
issue, the question of resorting to the exception to the general rule does not
arise”.
“It is
fundamental that in a civil suit, relief to be granted can be only with
reference to the prayers made in the pleadings. That apart, in civil suits
grant of relief is circumscribed by various factors like court fee, limitation,
parties to the suits, as also grounds barring relief, like res judicata,
estoppels, acquiescence, non-joinder of cause of action or parties etc., which
require pleading and proof. Therefore, it would be hazardous to hold that in a
civil suit whatever be the relief that is prayed, the court can on examination
of facts grant any relief as it thinks fit. In a suit for recovery of Rs. One
Lakh, the court cannot grant decree for Rs. Ten lakhs. In a suit
for recovery possession of property ‘A’, Court cannot grant possession of
property ‘B’. In a suit praying for permanent injunction, court grant a relief
of declaration or possession. The jurisdiction to grant relief in a civil suit
necessarily depends on the pleadings, prayer, court fee paid, evidence let in,
etc.”
Bachhaj
Nahar versus Nilima Mandal and others.2009 (1) SCCD 220, ( also see
Bhagwati Prasad v. Shri Chandramaul, AIR 1966 SC 735. , Ram Sarup
Gupta (Dead) by L.Rs. v. Bishun Narain Inter College, AIR 1987 SC
1242 ).
Pleading
to be signed : Order 6 Rule 14 C.P.C. provides every pleading shall be signed
by the party and his pleader( if any ) :
Provided
that where a party pleading is, by reason of absence or for other good cause,
unable to sign the pleading, it may be signed by any person duly authorized by
him to sign the same or to sue and defend on his behalf.
Verification
of Pleadings: Order VI Rule 15 C.P.C. provides the mode of Verification of
Pleadings
(1) Save
as otherwise provided by any law for the time being in force, every pleading
shall be varied at the foot by the party or by one of the parties pleading or
by some other person proved to the satisfaction of the court to be acquainted
with the facts of the case.
(2)The
person verifying shall specify, by reference to the numbered paragraphs of the
pleading, what he verifies of his own knowledge and what he verifies upon
information received and believed to be true.
(3) The
verification shall be signed by the person making it and shall state the date
on which and the place at which it was signed.
(4) The
person verifying the pleading shall also furnish an affidavit in support of his
pleadings.
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