Assignment on Pleadings

Course Title: Laws on Civil Procedure-I

Course Code: LLBH 401

Prepared for

Md. Abu Nayem Miazi

Assistant Professor
Department of Law
Green University of Bangladesh
Prepared by
Suniya Akter
173011009
Department of Law
Green University of Bangladesh

Date of Submission: 10-01-2021

Contents
Introduction ................................................................................................................3
Pleadings ....................................................................................................................3
Elements of pleadings ..........................................................................................3
Amendment of pleadings .....................................................................................4
Types of the amendment......................................................................................4
Why do we need an amendment of pleadings? ...................................................5
Rule 17 of order VI deals with the amendment of pleadings; .............................5
Amendment of pleadings when not to be allowed ..............................................6
Can an amendment be acceptable when the nature of the suit is changed? ........7
When or at what stage an amendment of pleadings can be accepted? ................7
Amendment at the appeal stage ...........................................................................8
Other provisions...................................................................................................9
The Pleadings contain two things namely, Plaint & Written Statement ...................9
Plaint under CPC: Particulars, Procedure, Admission & Rejection .......................9
PARTICULARS OF A PLAINT:......................................................................10
ADDITIONAL PARTICULARS: .....................................................................10
PROCEDURE FOR ADMISSION OF THE PLAINT: ....................................11
HEADING AND TITLE: ..................................................................................11
NAME OF THE COURT: .................................................................................11
PARTIES TO THE SUIT: .................................................................................11
TITLE OF THE SUIT: ......................................................................................12
BODY OF THE PLAINT ..................................................................................12
FORMAL PORTION: .......................................................................................12
SUBSTANTIAL PORTION: ............................................................................13
RELIEF: .............................................................................................................13
SIGNATURE AND VERIFICATION: .............................................................13
RETURN OF PLAINT ......................................................................................14

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 DISMISSAL OF SUIT ......................................................................................14
NATURE OF RETURNED PLAINT ...............................................................14
WHEN CAN A PLAINT BE REJECTED? ......................................................15
WHEN CAN THE APPLICATION FOR THE REJECTION OF A PLAINT
BE MOVED? .....................................................................................................15
Written statement Order 8 of CPC........................................................................15
Meaning: ............................................................................................................16
Who may file written statement: - .....................................................................16
Time limit for filing written statement: - ...........................................................16
Defenses in written statement: - ........................................................................16
Particulars: Rules 1-5 and 7-10 .........................................................................17
Special rules of defense: - ..................................................................................17
Conclusion ...............................................................................................................19
Bibliography.............................................................................................................20

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 Introduction
A civil suit must be instituted with a pleading and the main area of conflict shall be
determined via pleadings. Moreover, the parties must limit their claims and submit
their documents that are mentioned in pleadings. Therefore, Pleadings must be dealt
with care, pleadings are the seed of a civil suit which will grow and bring the fruit
with the help of justice.

Pleadings
The party who institutes a civil suit present his claim by a written document known
as a “plaint” and the party is called plaintiff, on the other hand, the other/s party
submit reply via another written document to accept or [mostly] deny the claims of
the plaintiff which is known as “written statement” and that party is known as a
“defendant” so it can be said that both of the party parties plead on their point to
establish or defend the claim. Both these, plaint and written statement are called
Pleadings, it is a common name for both of these terms.
A pleading is a very important part of civil procedure. It contains the necessary
elements that are required to initiate and run a civil trial.
General rules of pleadings are mentioned under Order 6 & Rule 1of the Code of
Civil Procedure, 1908. It must be pointed that more specific rules are given for both
plaint and written statement under order 7 and 8 accordingly.
Elements of pleadings
• Both plaint and written statement are pleadings [Order VI, Rule 1]
• Every pleading shall contain the statement of material fact which is necessary
for the claim or defense it should not include evidence. [Order VI, Rule 2]
• The date, sums and numbers shall be expressed in figures. [Order VI, Rule 2]

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 • No pleadings shall raise any new ground or claim or any fact that is
inconsistent with the previous pleadings except by the way of amendment of
pleadings. [Order VI, Rule 7]
• Every pleadings shall be signed by the party and his pleader if a party fails to
do so due to absence or any other good reason, it might be signed by a duly
authorized person by that party. [Order VI, Rule 14]
• Every pleading shall contain a verification at the end part of the pleadings by
the party or some other person who is acquainted with the fact of the case.
[Order VI, Rule 15]
Amendment of pleadings
A pleading could go wrong for various reason, at that situation a pleadings requires
an amendment to serve its purpose. The term amendment of pleadings is very self-
explanatory, in certain situation, a pleading may need an amendment to serve its
purpose. This amendment is called the amendment of pleadings.

The concerned party can apply for an amendment of pleadings to the court to add,
subtract or correct the pleadings. The parties require an amendment of pleadings can
ask for order via application of amendment and the court shall consider their
application based on the law, principals and decision of cases.

Types of the amendment

Pleadings can be amended in two particular situations.

Sue moto court order under Order VI, Rule 16 &

On the basis of an application by any party under Order VI, Rule 17

Compulsory amendment by Sue moto court order

The court itself may at any stage of the proceedings fast and order for striking out
any pleadings or for amending any pleadings or the ground that;

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it is unnecessary or scandalous,
it is prejudicial or embarrassing,
it major delay the fair trial of the suit.
In such order, parties are bound to follow the court order, therefore it is called a
compulsory amendment.

Voluntary amendment by a party

When we mention amendment of pleading generally we indicate this voluntary
amendment of pleadings by a party. [Hereinafter mentioned as “Amendment of
pleadings”]

Why do we need an amendment of pleadings?

Generally, any party must be confined to the documents and facts presented before
the court but in some cases, there could be some mistake or inadvertence or
subsequent development that may make some problem to the way of justice, in such
situation the amendment of pleading is required to ensure the justice and remove
those obstacles. But In Rule 7 of Order VI provided that parties shall be prevented
from raising new grounds or claims or making new cases except by amendment.

Rule 17 of order VI deals with the amendment of pleadings;

It reads, 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 and search terms as just and all such amendment shall be made as
may be necessary for the purpose of determining the real questions in controversy
between the parties.

Provided that, no application for amendment shall be allowed after the trial has
commenced unless the Court is of opinion that in spite of due diligence, the party
could not have raised the matter before the commencement of trial.

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Provided further that, if an application for amendment is made after the trial has
commenced and the Court is of opinion that the application is made to delay the
proceedings, the Court shall make an order for the payment to the objector such cost
by way of compensation as it thinks fit.
It must be noted that the real question of controversy has not been defined in the law,
for that some case laws provide help. Based on the number of established case laws
we can create a list when and for what reason can be allowed or not allowed.
When an amendment can be allowed
to determine the real question of controversy,
to avoid multiplicity of the suit,
to add parties and add schedules,
to add an alternative claim or relief or an alternative defence,
to adjudicate and settle all controversies between the parties completely and
effectively,
to correct misdescription of the property mentioned in the pleadings or to correct the
address of the property,
to add for the relief it is found to be necessary
to remove any defects in the nature of signing off the plaint and verification

Amendment of pleadings when not to be allowed

if plaintiff’s suit wholly displaced by amendment,
if amendment takes away the right acquired by time,
if amendment introduced different or new or inconsistent suit,
If it changes is the nature and character of the suit,
when the amendment causes prejudice to other parties,
when the claims are barred by law or time

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if ti made for unusual delay
if it is not bonafide
If such amendment is not necessary at all.

Can an amendment be acceptable when the nature of the suit is changed?

It is a well-established principle that an amendment which changed the nature of the
suit should not be allowed. It is held in Abdul Motaleb vs. Ershad Ali, 1998 BLD
(AD) 121 but the question remains when it can be said that the nature of suit is
changed in that matter the appellate division observed that the nature and corrector
of the suit do not change so long as fundamental character of the suit remains the
same.

In another case, NMC Model High School vs. Obidur Rahman, 31 DLR (AD) 133
The apex court held that unless the other party is prejudiced an amendment should
be allowed even if the changes the nature and character of the suit or introduce a
new case or even if it takes away any right accrued to the other parties if the interest
of the justice so requires or if it is found to be necessary to determine the real issues
and controversies between the parties. This observation is later supported by a
number of other judgments.

Therefore, it can be said that, all amendments ought to be allowed which satisfy two
conditions

It is not prejudiced to the other party

it is necessary to determine the real question in controversy between the party.

When or at what stage an amendment of pleadings can be accepted?

Rule 17 of order VI clearly stated that pleadings can be amended at any stage of the
proceedings that means when there is a sufficient cause an amendment would be

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done with the permission of the court, thus, it can be said that an amendment of
pleadings can be held in any stage of the suit.

Amendment at the appeal stage

Now there is a common question that, whether an amendment can be held after the
judgement or at the Appellate stage or not?

The answer is, “yes”, an amendment may also be allowed at appellate state because
our legal reference Rule 17 of Order VI mentioned that, “The Court may at any stage
of the proceedings allow either party to alter or amend his pleadings..” and an appeal
is the continuation of a suit as mentioned under Garikapati Veeraya vs N. Subbiah
Chaudhry, AIR 1957 SC 540, therefore, an amendment of pleadings can also be
allowed at the appellate stage.

Some other case reference made it direct and more clear, in Keramot Ali Vs.
Muhammad Yunus 15 DLR (1963) 120 held that the court may grant application of
amendment of pleadings at or after the trial or in the appeal or revision or in the
appellate division or even at the execution process.

In another case Bimal vs. custodian [42 DLR 227] it was held that amendment of
pleadings is permissible for determination the real question between the parties but
there are also some situation when the amendment of pleadings is not permissible.
These situations are best presented by the case Municipal committee vs. Rafiq [25
DLR 97] held that prayers at amendment at appellate stage should not be allowed if
it is not bonafide, in therefor an appeal without good faith can be rejected if not in
good faith. Moreover, the general provision regarding amendment of pleadings shall
also be applicable in such case.

But in the proviso of Rule 17 of Order VI it warned that, no application for

amendment shall be allowed after the trial has commenced, unless the Court is of
opinion that in spite of due diligence, the party could not have raised the matter
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before the commencement of trial. Moreover, it provided further that, if the court
thinks that the party applied for amendment is doing it to delay the proceedings the
court may order for compensation to the objector.

Other provisions
Though Order VI provides us with an overall picture of amendment of pleadings,
there are more provisions that can add value to such amendment as Order VI is not
an exhaustive provision.

Such as section 151 of CPC the inherent power of the court can be applied to amend
pleadings where it is required for ends of justice, regardless of the stage of the suit.

Another provision of CPC is Section 153 where it is provided Court may at any time
amend any defects or error in processing in a suit.

The Pleadings contain two things namely, Plaint &

Written Statement

Plaint under CPC: Particulars, Procedure, Admission & Rejection

A plaint is a legal document which contains the written statement of the plaintiff’s
claim. A plaint is the first step towards the initiation of a suit. In fact, in the very
plaint, the contents of the civil suit is laid out. Through such a plaint, the grievances
of the plaintiff are spelled out, as well as the possible causes of action that can arise
out of the suit. A plaint which is presented to a civil court of appropriate jurisdiction
contains everything, including facts to relief that the plaintiff expects to obtain.
Although it hasn’t been defined in the CPC, it is a comprehensive document, a
pleading of the plaintiff, which outlines the essentials of a suit, and sets the legal
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wheels up and running. Order VII of the CPC particularly deals with a plaint. A few
of the essentials of a plaint implicit in itself are those only material facts, and not all
facts or the law as such is to be stated, the facts should be concise and precise, and
no evidence should be mentioned.

PARTICULARS OF A PLAINT:

The name of the particular court where the suit is initiated. Name, place, and
description of the plaintiff’s residence Name, place, and description of the
defendant’s residence. A statement of unsoundness of mind or minority in case the
plaintiff or the defendant belongs to either of the categories. The facts that led to the
cause of action and when it arose. The facts that point out to the jurisdiction of the
court. The plaintiff’s claim for relief. The amount allowed or relinquished by the
plaintiff if so A statement containing the value of the subject matter of the suit as
admitted by the case.

ADDITIONAL PARTICULARS:

Order VII, Rule 2 states that the plaintiff shall state the exact amount of money to
be obtained from the defendant if the case is so. On the other hand, if the exact
amount cannot be arrived at, as is then case with mesne profits, or claim for property
from the defendant, an approximate figure must be mentioned by the plaintiff. Order
VII, Rule 3 states that when immovable property is the subject matter of the plaint,
the property must be duly described, that is sufficient in the ordinary course to
identify it. Order VII, Rule 3 states that when the plaintiff has initiated the suit in a
representative capacity, it has to be shown that he/ she has sufficient interest in doing
the same as well as has taken the required steps to ensure the same. The plaint should
adequately show the involvement of the defendant, including his/ her interests in the
same and thereby justifying the need to bring him/ her forward. If the plaintiff files
the suit after the expiration of the period of limitation, he/ she must show the reason
for which such an exemption from law is being claimed.

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PROCEDURE FOR ADMISSION OF THE PLAINT:

When the court serves the summons for the defendant, according to Order V, Rule
9, the plaintiff must present copies of then plaint according to the number of
defendants, and should also pay the summons fee, within seven days of such a
summons. THE PARTICULARS OF A PLAINT CAN BE DIVIDED INTO
THREE IMPORTANT PARTS SUCH AS HEADING AND TITLE, BODY OF
THE PLAINT, AND RELIEF CLAIMED.

HEADING AND TITLE:

NAME OF THE COURT:

The name of the court should be written as the heading. It is not necessary to mention
the presiding officer of the court. The name of the court would be sufficient. Eg. In
the Court of District Judge, Kolkata.

PARTIES TO THE SUIT:

There are two parties to every suit, the plaintiffs and the defendants. For the purpose
of the suit, the name, place, and description of the residence of both the plaintiffs
and the defendants have to be mentioned in the particular plaint.

When there are several plaintiffs, all of their names have to be mentioned and have
to be categorically listed, according to their pleadings, or in the order in which their
story is told by the plaintiff. Minors cannot sue nor can be sued. So if one of the
parties is a minor or of unsound mind, it will have to be mentioned in the cause title.

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TITLE OF THE SUIT:

The title of the suit contains the reasons for approaching the court and the jurisdiction
before which the plaint Is initiated.

BODY OF THE PLAINT

This is the body of the plaint wherein the plaintiff describes his/ her concerns in an
elaborative manner. This is divided into short paragraphs, with each paragraph
containing one fact each. The body of the plaint is divided into two further parts
which are:

FORMAL PORTION:

The formal portion contains the following essentials.

A statement regarding the date of cause of action. It is necessary for every plaint to
contain the date when the cause of action arose. The primary objective behind this
is to determine the period of limitation. There should be a statement regarding the
jurisdiction of the court. The plaint must contain all facts that point out the pecuniary
or territorial jurisdiction of the court. The value of the subject matter of the suit must
be stated properly in this part of the plaint. Statement regarding minority. The
representative character of the plaintiff The reasons why the plaintiff wants to claim
exemptions under the law if the suit is initiated after the period of limitation.

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SUBSTANTIAL PORTION:

This portion of the plaint must contain all the necessary and vital facts, which
constitute the suit. If the plaintiff wishes to pursue a course of action on any other
grounds, such grounds must be duly mentioned.

It should be shown in the plaint that the defendant is interested in the subject matter
and therefore must be called upon by the court. If there is more than one defendant,
and if the liability is not joint, then the individual liability of each and every
defendant must be shown separately. In the same way, if there is more than one
plaintiff, and their cause of action is not joint, then too, the same has to be mentioned
separately.

RELIEF:

The last part of the plaint is the relief. The relief claimed must be worded properly
and accurately. Every plaint must state specifically the kind of relief asked for, be it
in the form of damages, specific performance or injunction or damages of any other
kind. This has to be done with utmost carefulness because the claims in the plaint
cannot be backed by oral pleadings.

SIGNATURE AND VERIFICATION:

The signature of the plaintiff is put towards the end of the plaint. In case the plaintiff
is not present due to any legitimate reason, then the signature of an authorized
representative would suffice. The plaint should also be duly verified by the plaintiff.
In case the plaintiff is unable to do so, his/ her representative may do the same after
informing the court. The plaintiff has to specify against the paragraphs in the
pleadings, what all he/ she has verified by his/ her own awareness of the facts, and
what has been verified as per information received, and subsequently believed to be
true. The signature of the plaintiff/ verifier, along with the date and the place, at the

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end of the plaint is essential. The verification can only be done before a competent
ourt or in front of an Oath Commissioner. Where the language of the plaint is beyond
the comprehension of the plaintiff, the same has to be translated, or made known to
the plaintiff, and only after that can he/ she put his/her signature and get the plaint
verified by the Oath Commissioner.

RETURN OF PLAINT

Order VII, Rule 10 states that the plaint will have to be returned in such situations
where the court is u able to entertain the plaint, or when it does not have the
jurisdiction to entertain the plaint. The courts can exercise the power of returning the
plaint for presentation before the appropriate court if it feels that the trial court itself
did not have the appropriate jurisdiction in the first place. Once the appellate court
finds out that the trial court decided on the civil suit without proper jurisdiction, such
decision would be nullified.

DISMISSAL OF SUIT

If the plaint is to be returned to the parties after its rejection, the court has to fix a
date for the same where the parties can arrive for this purpose. This was mentioned
in Rule 10, inserted by the amendment act of 1976. If the court does not have the
adequate jurisdiction, the proper course is to return the plaint and not to dismiss it.

NATURE OF RETURNED PLAINT

When a plaint has been returned for want of proper jurisdiction, it is to be treated as
a fresh plaint. This fresh plaint can be amended and no consequences can arise as a
result of it. This amended plaint cannot be rejected by stating that the averments
were not present in the original plaint. This argument will not be taken into
consideration and the plaint will be allowed to stand.

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WHEN CAN A PLAINT BE REJECTED?

A plaint can be rejected under the following scenarios:

Where the cause of action is not disclosed When the relief claimed by the plaintiff
is undervalued, and he/ she is not able to correct it even after being instructed by the
court to do so. When the relief claimed is proper, but the plaintiff proceeds with the
plaint on a paper which has not been stamped sufficiently and fails to do so even
after the court’s instruction. Where the suit stems from a statement which has been
essentially barred by law.

WHEN CAN THE APPLICATION FOR THE REJECTION OF A

PLAINT BE MOVED?

Application for the rejection of the plaint can be in instituted at any time, even after
the issues have been solidified in the said plaint.

Written statement Order 8 of CPC

Here, we will discuss the Written statement, its meaning, its particulars and who may
file and what is the time limit for filing a written statement. And at what time of
point the time limit will consider started etc. And we also consider the drafting of
the written statement, means in what manner a written statement should be drafted.
Let’s begin.

First of all, we should know that what is written statement. Actually, it is a pleading
of the defendant in the answer of the plaint filed by the plaintiff against him. It is a
reply statement of the defendant in a suit specifically denying the allegations made
against him by the plaintiff in his plaint. The provision regarding the written
statement has provided in the Code of Civil Procedure, 1908.

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Meaning:

The expression “Written Statement” has not been defined in this code. It is a term of
specific meaning ordinarily signifying a reply to the plaint filed by the plaintiff. In
other words, it is the pleading of the defendant wherein he deals with the material
fact alleged by the plaintiff in his plaint and also states any new fact in his favour or
takes legal objections against the claim of the plaintiff.

Who may file written statement: -

A written statement may be filed by the defendant or by his duly authorized agent.
In the case of more than one defendant, the common written statement filed by them
must be signed by all of them. But it is sufficient if it is verified by one of them who
is aware of the facts of the case and is in a position to file an affidavit. But a written
statement filed by one defendant does not bind other defendants.

Time limit for filing written statement: -

A written statement should be filed within thirty days from the service of the
summons on him. The said period, however, can be extended up to ninety days,(Rule
-1). A defendant should present a written statement of his defense in the said period.

Defenses in written statement: -

In written statement defendant can specifically deny the allegations made in the
plaint by the plaintiff against him. Besides this, he also can claim to set-off any sums
of money payable by the plaintiff to him as a counter defense (Order 8 Rule 6).
Further, if the defendant has any claim against the plaintiff relating to any matter in
the issue raised in the plaint, then he can separately file a counter-claim along with
his written statement. It is provided in Order 8 Rule 6A to 6G of the code.

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Particulars: Rules 1-5 and 7-10

Drafting a written statement is an art so it should be drafted carefully and artistically.

Before proceeding to draft a written statement, it is absolutely necessary for the
defendant to examine the plaint carefully.

Special rules of defense: -

Rules 2 to 5 and 7 to 10 deal with special points regarding the filing of a written
statement;

1. New facts, such as the suit is not maintainable, or that the transaction is either void
or voidable in law, and all such grounds of defense as, if not raised, would take the
plaintiff by surprise, or would raise issues of fact not arising out of the plaint, such
as fraud, limitation, release, payment, performance or facts showing illegality, etc.
must be raised. (Order 8 Rule 2).

2. The denial must be specific. It is not sufficient for a defendant in his written
statement to deny generally the grounds alleged by the plaintiff, but he must deal
specifically with each allegation of fact which he does not admit, except damages.

3. The denial should not be vague or evasive. Where a defendant wants to deny any
allegation of fact in the plaint, he must do so clearly, specifically and explicitly and
not evasively or generally.

4. Where every allegation of fact in the plaint, if not denied specifically or by

necessary implication, or stated to be not admitted except as against a person under
disability. The court may, however, require proof of any such fact otherwise than by
such admission.

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5. Where the defendant relies upon several distinct grounds of defense or set-off or
counterclaim founded upon separate and distinct facts, they should be stated
separately and distinctly.

6. Any new ground of defense which has arisen after the institution of the suit or a
presentation of a written statement claiming a set-off or counterclaim may be raised
by the defendant or plaintiff in his written statement as the case may be.

7. If the defendant fails to present his written statement within the time permitted or
fixed by the court, the court will pronounce the judgment against him or pass such
order in relation to the suit as it thinks fit and a decree will be drawn up according
to the said judgment.

8. No pleading after the written statement of the defendant other than by way of
defense to set-off or counterclaim can be filed.

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 Conclusion
For the above discussion, it can be concluded that amendment of pleadings is not a
right but at the same time, the court cannot reject the application of pleadings
arbitrarily, both the court and the parties must find an adjust balance through case
laws and legal principal for the ends of Justice.
A plaint is important in the sense that it is the first and foremost step towards
instituting the suit. Therefore, due care has to be taken to ensure that the procedure
required for the initiation of plaint has been duly recognized. It is mandatory to
follow protocol by stating the relevant facts, the necessary details, refrain from
providing evidence and mention the kind of relief envisaged so that the plaintiff is
duly benefitted.
At last, it is clear that the written statement is a reply statement of the defendant to
the plaintiff. In this defendant state his defense and deny the allegation of the plaintiff
as per his material facts. It is a method to disclosed both sides of the suit in both the
party present his favor by the way of the plaint, the plaintiff and by the way of written
statement, the defendant in the court.

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Bibliography

✓ Civil Procedure by Abdul Halim

✓ The Code of Civil Procedure, 1908
✓ http://bdlaws.minlaw.gov.bd/act-86.html
✓ https://lawhelpbd.com/cpc/pleadings/
✓ https://www.lawnn.com/plaint-under-cpc/
✓ https://www.lawnotes4u.in/2018/09/written-statement-order-8-of-cpc-
meaning-rules-time-particulars-etc..html

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