LECTURE TO
LEARNED LAWERS of KPK
& BALOCHISTAN ON THE TOPICS OF (DRAFTING OF PLEADINGS AND PETITIONS)
By:
ABDUL ZAKIR TAREEN
Advocate Supreme Court
[zakirtareen@yahoo.com]
(DATE 27/02/2018)
Meaning of Law, &
Two Types of law
Law means Rules of action. Meaning thereby in civil society every action of citizen must be in a manner provided by law. There are several kinds of law, but its types are two.
i. Substantive law means, law which creates rights and obligations e.g. in civil side Contract Act, Transfer of Property Act, and Pre-emption Act, etc are the instances of substantive law.
ii. Procedural law means, law which provides procedure for Courts for adjudication of controversies in a uniform manner, e.g. Civil Procedure Code is the procedural law.
Under the civil substantive law if any of the right of a person is violated and cause of action accrued to him he has to file civil suit in civil Courts.
Civil Procedure Code lays down the procedure, which the Courts of civil jurisdiction have to follow.
So Civil Procedure Code as a procedural law describes;
A. The process and stages of
civil suits;
B. Its procedure,
C. Process of appeal/revision/review and its
procedure,
D. Execution of decrees,
E. Powers and discretion of the Courts.
In case titled: Muhammad Asghar Vs Hussain Ahmad and others, reported in PLD 2014 Supreme Court 89 citation (b), the apex Court held that, “procedural law had immense significance and the true purpose and object of such law, was not merely a technical aspect of the law which should be reckoned as a mere formality, rather procedural law was meant to cause uniformity, discipline, parity and systemization in conducting the trial of the case, in the absence whereof, it shall not be possible for the Courts of law to adjudicate the matter in accordance with law and to do justice according to law. Following the procedure prescribed by law in letter and spirit was bounden duty of the Courts and also the litigants, as failure to do the same shall result in indiscipline and disarray in proceedings of a trial of a case.
Historical background of
civil procedural law:
≥ The code of
civil procedure, 1859 was the first
code regarding the procedural law. Before 1859 the law of Civil Procedure was
in a chaotic (disorder) condition, e.g. in
≥ 1859 code
was incomplete, another comprehensive bill was prepared by “Sir heway
Harrington” and re-arranged by Dr. Whitley Stokes, he introduced a number of
new provisions based on orders and rules made in
≥ Soon after the enactment of the code of 1877, it was realized that the new code required several amendments, in these circumstances the Code of Civil Procedure, 1882 was enacted.
≥ It was however, discovered that in respect of some matters the provisions of the codes were too rigid to meet sufficiently the varying needs of the different areas of the country.
To remedy these needs a comprehensive revision of the code was under taken by a select committee, which collected valuable material on the subject and prepared a draft bill.
A special committee presided by Sir Earle Richards, which included Dr. Rashbeharu Ghose, examined the bill carefully. This committee, while giving due regards to the provisions of the bill, relied upon the code of Civil Procedure 1882 as the basis of revision.
It arranged all the provisions of the code in to two parts:
i. The Body of the Code (Fundamental provisions and conferring powers to the provinces) and
ii. The schedule.
The bill, as settled by the special committee, was enacted as Code of Civil Procedure, 1908.
Pleading:
Pleadings are statements in writing of each party containing contentions “arguments” of such party and detail of his case. Pleading is defined in Order (6) Rule (1) of Code of Civil Procedure as plaint or written statement.
Pleadings
Plaint Written statement
Re-Joinder Additional Written Statement
Plaint:
Plaint means statements 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 redressal of his grievances.
Written Statement:
Written statement means statements of defence 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 fact, which he considers to be in his favour, and can raise legal objections to the merits of the case, prescribed by various laws e.g. plea of Limitation, plea of Estoppel, plea of Resjudicata, etc.
Rejoinder:
Rejoinder means answer of the plaintiff, which he gives keeping in view new facts alleged by defendant in written statement.
Additional Written Statement:
It means further answer of defendant (If Court permits), which he gives in light of rejoinder.
Object of Pleading:
The object of Pleading is to bring parties to an issue and the purpose of the rules relating to Pleading is to prevent the issue being enlarged. Further that the parties themselves know what the matters in dispute are and what facts they have to prove at the trial.
Purpose of Pleading:
Purpose of pleadings was to led the other party to know as to what case it had to meet as well as the facts which parties were to prove or establish the cause of action or the defendants to establish their defence.
(2017 YLR Notes
Importance of Pleading:
Importance of the pleadings and its legal value and significance could be evaluated and gauged from the fact that it was primarily on the basis thereon that the issues were framed.
(2015 SCMR 1698)
What Should a Pleading contain?
Every Pleading shall contain and contain only, a statement in concise form of the material facts, on which the party Pleading (plaintiff or defendant) relies for his claim or defence, as the case may be. It shall not contain the evidence by which they are to be proved, and it shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures.
General Rules of Pleading:
In Civil Procedure Code Order (6), deals with Pleadings in general, Order (7), deals with plaint, and Order (8), deals with written statement. The following is the summary of the Rules comprised in Orders 6, 7 and 8 of CPC:
1. In Pleading state your whole case, in-other words set forth in Pleading all material facts on which you rely for your claim or defence, as the case may be.
2. In Pleading state facts and not law, if any matter of law is setout in your opponent’s Pleading do not plead to it.
3. In Pleading state only the relevant facts on which you rely, and not the evidence by which those facts are to be proved.
4. In pleading state material facts only and omit immaterial and unnecessary facts, and do not plead to any matter which is not alleged against you.
5. In Pleading state the facts of case concisely, but with precision.
6. It is not necessary to set-out the whole or any part of document, unless the precise words thereof are necessary. It is sufficient to state the effect of document as briefly as possible.
7. It is not necessary to allege any matter of fact which the law presumes in your favour or as to which the burden of proof lies upon your opponent party.
The party should not plead conclusion of law in pleading. Legal pleas, such as Estoppel, Limitation, and Resjudicata/Res-subjudice, etc may be pleaded in written statement.
In cases where the party Pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, particulars thereof shall be stated in the Pleading.
Whether amendment in
pleadings is permissible under the law? What are the restrictions in the way of
amendment in pleadings?
INTRODUCTION:
Law provides every possible means to ascertain the legal right of every one. Sometimes a party brings pleadings with certain informal errors, or some facts are not shown or some relief is not sought, in these situations the law makers has provided a mechanism that in-order to bring the parties to real controversy they would have a right to amend their pleadings at any stage of the trial and before pronouncement of judgment. Order 6 Rules 16 and 17 are provided in CPC under which without changing or modifying the nature of suit a person could amend his pleadings subject to certain restriction imposed by law.
RELEVANT PROVISIONS:
Order 6 Rules 16 and 17 According to Order-6 Rule 16, the Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit.
According to Order-6 Rule 17, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
AMENDMENT MEANS:
The word amend means correction, removal of error or addition of some necessary facts, thus amendment of pleading means correction of any error, addition of necessary facts deletion of unnecessary facts or removal of ambiguity in plaint or written statement.
WHO MAY APPLY FOR AMENDMENT:
An application for amendment under Order 6 Rule 17 may be filed by both the parties i.e. Plaintiff for amendment in plaint and defendant for amendment in written statement subject to limitation imposed by law.
Secondly, as per legal command of Order 6 Rule 16 either party may apply for amendment of the pleading of his rival.
WHEN APPLICATION FOR AMENDMENT OF PLEADINGS MAY BE FILED:
Before passing of final decree/judgment of the Court, the parties can apply before the trial Court for amendment in pleadings, and the Court is duty bound to allow the parties to bring change in their pleadings to some extent for the ends of justice and for determining the real question in controversy between the parties. Delay, negligence or carelessness is no ground to refuse amendment.
The word any stage means any time during Court proceedings and proceedings include the process of adjudication of appeal/revision and up to the Supreme Court. Meaning thereby amendment in the pleadings can be sought even from the Supreme Court, when the Supreme Court is hearing appeal under Article 185 of the Constitution of Pakistan while exercising its appellate jurisdiction.
AMENDMENT IN PLAINT:
The plaintiff can amend his plaint, by:
I. Removing informal error
II. Adding necessary facts
III. Deleting unnecessary facts
IV. Adding necessary parties, deleting unnecessary parties, and transposing one party from one panel to the other panel of parties
V. Mentioning description of property
VI. Mentioning a relief, omitted earlier, and
VII. Introducing his real controversy.
Under Order 6 Rule 16 the plaintiff can also sought amendment of written statement to remove unnecessary and scandalous facts for expeditious disposal of suit.
AMENDMENT IN WRITTEN STATEMENT:
The defendant has also legal right to request for the amendment of plaint under Order 6 Rule 16, if there is something unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial. Similarly the defendant under Order 6 Rule 17 has also got a right to amend written statement by:
I. Mentioning new facts which are necessary
II. Altering already existing facts
III. Deleting unnecessary facts; and
IV. Correcting informal errors.
AMENDMENT MUST BE ALLOWED: The provision of Order VI Rule 16 and 17 are to be interpreted liberally and the Court in order to bring the real controversy between the parties on the surface of the record is to allow amendment.
RESTRICTIONS:
• The amendment which substitute one cause of action to another,
• Amendment which change the subject matter and character of the suit,
• The amendment which is prejudice to the right of opposite party,
• The application for amendment filed malafidely,
• Fact admitted cannot be allowed to deny through amendment,
• The amendment which change the nature and complexion of suit.
POWERS OF COURT:
Under Order VI Rules 16 and 17 the Court has discretionary powers to allow amendment, but the discretion must be exercised upon the judicial principles and all amendments must be allowed which are necessary for the purpose of determining the real questions in controversy between the parties.
The parties after getting order of amendment should amend their pleading as per the order and permission of the Court and should not go beyond that order.
In accordance with Order VI Rule 18, if a party is permitted to amend his pleading and he failed to amend within the limited time for that purpose by the order, if no time is provided then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time or of such 14 days, as the case may be unless the time is further extended by the Court.
CONCLUSION:
From the above discussion it is summed up, that once either party filed their pleadings in the Court of law, those pleadings cannot be disturbed or interfered, except by introducing amendment therein, and with the permission of the Court and the Court always allow amendments for the purpose of determining the real questions in controversy between the parties.
Burden of Proof:
The phrase “Burden of Proof, or, “onus of proof has two distinct meanings in the Law of Evidence,
1. The burden of establishing a case.
2. The burden of introducing evidence.
1. Burden of establishing a case:
The Burden of Proof in the sense of establishing a case remains throughout the trial where it was originally placed, it never shifts.
Thus in a civil case, it is determined by the state of pleadings and is almost invariably upon the plaintiff, so it is he who first raises the issue.
In criminal cases, since there is a presumption of innocence in favour of the accused, the burden of proving everything essential to the establishment of charge against him lies on the prosecution.
2.
Burden of introducing evidence:
The Burden of Proof in the sense of introducing evidence may shift constantly, as the evidence is introduced by one side or the other side. If a prima facie evidence is adduced by one party, the burden shifts to the other party to rebut that prima facie evidence.
Plaint, Definition:
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 aid of the Court is invoked. Civil Procedure Code, does not define the word “Plaint”. It should, therefore, be construed in its general sense as a petition of claims filed by Plaintiff in the Civil Court of original jurisdiction to initiate a civil suit.
Particulars of Plaint:
According to Order (7) Rule (1) of Civil Procedure Code, which provides that the Plaint shall contain the following particulars:
1. The name of the Court in which the suit is brought.
For instance, if the suit is to be
brought in the Court of “Senior Civil Judge,
“In the Court of Senior Civil Judge,
2. The name, description and place of residence of the Plaintiff.
3. The name, description and place of residence of the defendant so far as they can be ascertained.
It is necessary that full description of the parties and the character in which they sue or be sued, should be given in the Plaint.
Description includes age, father’s name, the titles by which a Plaintiff or defendant is known and place of residence of both parties should be accurately given.
4. Where the Plaintiff or the defendant is minor or person of unsound-mind, a statement to that effect.
5. The facts constituting the cause of action and when it arose.
The expression “cause of action” means, the whole bundle of material facts. In other words, facts by which the plaintiff feels grievance and by which the plaintiff gets the right of locus standi. Generally cause of action denotes bunch of facts which shows the infringement of rights of a party.
6. The facts showing that the Court has jurisdiction to entertain suit.
7. The relief which the Plaintiff claims.
The Plaint should mention specifically what relief the Plaintiff asks for. The prayer for relief should not be vague.
8. Where the Plaintiff has allowed a set-off or relinquished a portion of his claim, a statement showing the amount so allowed or relinquished.
9. Statement of the value of subject-matter of the suit for the purpose of jurisdiction and for the purpose of Court fee.
10. At last Plaint should contain name of advocate his signature, and Plaintiff must verify the contents of the Plaint and he must sign the verification.
Duty of the Court to examine Plaint:
It is the duty of the Court under Order (7) of Civil Procedure Code to examine a Plaint before issuing Summons, to ascertain, whether the Plaint fulfills the requirements of Order (7) of Civil Procedure Code.
Grounds for rejection of Plaint:
According to Order (7) Rule (11) of the Civil Procedure Code, the Plaint shall be rejected in the following cases:
1. Where Plaint does not disclose cause of action.
2. Where the relief claimed is under value, and the Plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so.
3. Where the relief claimed is properly valued but the Plaint is written upon paper insufficiently stamped, and the Plaintiff, on being required by the Court to supply the requisite stamp-paper fails to do so.
4. Where the suit appears from the statement in the Plaint to be barred by any Law.
Particulars of Written statement:
In written statement, there are two portions:
1. First one is Preliminary or Legal objections.
2. Second one is Portion of Para-wise Reply of plaint.
If necessary the defendant also discloses new facts.
BASIC REQUIREMENTS FOR ADVOCATES:
He must be Master of:
1. Drafting
2. Art of Cross-examination
3. Art of Presentation.
BASIC skills of Drafting:
An Advocate must know the Rules of Pleadings. The skill of Drafting is developed by practice and daily Drafting Exercise.
BASIC Method of use of paper for pleadings:
One inch margin should be left at four sides of paper:
(Top, bottom, left and right).
Draft of pleadings must be well looked.
RULINGS ON AMENDMENT OF
PLEADING
Amendment in pleadings Allowed……
1. 2018 SCMR 82
2. 2016 SCMR 1621
3. 2016
MLD
Amendment in pleadings Refused …..
2005 PLD
Amendment and striking out pleadings …..
1. 2016 PLD
Through Amendment in pleadings nurture of suit would not be changed...
1. 2017
CLC Notes
2. 2017
CLC
3. 2016 CLC Lahore 386 citation “b”.
4. 2016
YLR
RULINGS ON DEPARTURE
FROM PLEADINGS
1. Party
cannot be permitted to make out a case beyond its pleadings. (2018 CLD
2. No one could travel beyond the scope of his pleadings. (2017 MLD Peshawar 1488 “b”).
3. Parties
were bound by their pleadings and could not be allowed to depart from the same.
(2017 CLC Notes
……..
EVIDENCE AND PLEADINGS
4. Pleadings
of parties could not be taken as evidence. (2017
YLR
5. Parties
could not go beyond their pleadings. Particulars of evidence need not to be
mentioned in the plaint and same could be produced during recording of
evidence. (2016 PLD
6. Evidence
could only be led with regard to a fact which was specifically asserted in the
pleadings and no such evidence was admissible which was beyond the pleadings. (2017 CLC
7. Party
had to first plead facts and pleas in the pleadings and then prove the same
through evidence. No one could be allowed to prove its case beyond what was originally
set up in the pleadings .Evidence led by a party beyond the scope of pleading
was liable to be ignored. (2017 CLC
Notes
8. Evidence must be in line of pleadings. (2017 MLD Karachi 770 citation “b”).
9. Evidence
beyond the scope of pleadings...None of the parties to a judicial proceeding
could be allowed to adduce evidence in support of a contention not pleaded by
it and the decision of a case could not rest on such evidence. (2016
………….
Conclusion:
So it can be concluded that Pleadings are technical and formal document as contemplated by the Civil Procedure Code. It must comply with the requirements contained in Order (7) & (6)of the Civil Procedure Code. Draft of pleadings must be skill full and well look
PETITION WRITING
1. Application for Temporary Injunction. (ORDER 39 Rules 1 & 2)
2. Application for Rejection of pliant. (ORDER 7 Rules 11)
3. Application for Return of pliant. (ORDER 7 Rules 10).
4. Application for Amendment. (ORDER 6 Rules 16 & 17)
5. Application for Appointment of Commission. (Section 75 & ORDER 26).
6. Application for Appointment of Receiver. (ORDER 40)
7. Application for Amendment of issues, or Framing Additional Issues. (ORDER 14 Rule 5).
8. Application for production of a witness not mentioned in list of witnesses. (ORDER 16 Rule 1)
9. Application for production of document. (ORDER 13).
10. Application for Addition, deletion, or transposition of parties. (ORDER 1 Rule 10, sub-rule (2).
11. Application for Stay of Suit, “Res-subjudice”. (Section 10).
12. Application for Setting aside Exparte Proceedings and Exparte Decree. (ORDER 9 Rules 6 & 13).
13. Application for Restoration of Suit. (ORDER 9 Rule 9).
14. Application for Withdrawal of Suit, with or without permission to file fresh one. (ORDER 23).
15. Application for permission to sue as a pauper. (ORDER 33).
16. Application for Review of Order/Judgment. (Section 114 and ORDER 47).
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