DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY

2019

FINAL DRAFT

ON

PLEADING SHOULD STATE FACTS AND NOT LAW

Submitted to: Submitted by:

Table of Contents
ACKNOWLEDGEMENT.......................................................................................................................3
INDEX OF AUTHORITIES...................................................................................................................4
INTRODUCTION.................................................................................................................................5
BASIC RULES OF PLEADINGS.........................................................................................................7
FACTS AND NOT LAW......................................................................................................................8
MATERIAL FACTS...........................................................................................................................10
Distinction between particulars and material facts.........................................................................12
CONCLUSION...................................................................................................................................15
BIBLIOGRAPHY...............................................................................................................................16

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ACKNOWLEDGEMENT

I have taken efforts in this research work. However, it would not have been possible without
the kind support and help of many individuals. I would like to extend my sincere thanks to all
of them. I am highly indebted to Mr Vipul Vinod, Assistant Professor (Law), for his guidance
and constant supervision as well as for providing necessary information regarding the
research; also for his support in completing the research work. I would like to express my
gratitude towards my parents and elders for their kind cooperation and encouragement which
help me in completion of this research work. And my special thanks to my college mates and
library staff who have helped me in developing this research work and people who have
willingly helped me out with their abilities.

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INDEX OF AUTHORITIES

1. Ladli Pd v. Karnal & co., 1963 SC 1279

2. Birad mal Singhvi v. Anand Purohit, 1988 SC 1796
3. Kedar Lal v. Hari Lal, AIR 1952 SC 47
4. Gouri dutt v. MAdho Prasad, AIR 1943 PC 147
5. Kochan Kani v. Mathevan Kani, (1971) 2 SCC 345
6. Goppulal v. Thakurji Shri Shri (1969) 1 SCC 792
7. Karim V. Sakina, AIR 1964 SC 1254
8. Duggi Veera v. Sakala Veera, (1987) 1 SCC 254
9. Mangal Sen v. Kanchhid Mal (1981) 4 SCC 780
10. Shaw v. Smith, (1924) 2 QB 429
11. State of Rajasthan v. Rao Raja Kalyan Singh , (1972) 4 SCC 165
12. Bell v. Lever Bros Ltd, (1931) 1 KB 557
13. Union of India v. Sita Ram (1976) 4 SCC 505
14. Udhav Singh v. Madhav Rao Scindia (1977) 1 SCC 511
15. Virender Nath v. Satpal Singh AIR 2007 SC 581
16. Virender Nath v. Satpal Singh AIR 2007 SC 581
17. Phillips v. Phillips (1878) 4 QBD 127
18. Ram Prasad v. State of M.P., (1969) 3 SCC 24
19. Union of India v. Sita Ram, (1976) 4 SCC 505
20. Union of India v. Surjit Singh, (1979) 1 SCC 520
21. Laljee v. Sat Naraine, AIR 1962 Pat. 182
22. Charan Lal Sahu v. Giani Zail Singh, (1984) 1 SCC 390

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INTRODUCTION

Order VI specifically deals with the concept of pleading in CPC. Order VI Rule 1 Civil
Procedure Code defines Pleading which says “plaint or written statement.” According to
Mogha “Pleadings are statements in writing drawn up and filed by each party to a case,
stating what his contentions will be at the trial and giving all such details as his opponent
needs to know in order to prepare his case in answer."1
A plaintiff's pleading is his plaint, a statement of claim in which the plaintiff sets out his
cause of action with all necessary particulars, and a defendant's pleading is his written
statement, a defence in which the defendant deals with every material fact alleged by the
plaintiff in the plaint and also states any new facts which are in his favour, adding such legal
objections as he wishes to take to the claim. Where the defendant, his written statement,
pleads a set-off, the plaintiff may file his written Again, in the defendant after filing his
statement additional with the written statement may file a written statement leave of the
court.
There are various rules has been prescribed under Order VI but for this project, researcher
would only deal with the one major rule i.e. pleadings to state facts and not law under which
material facts and legal backing will be provided.
“The object of a pleading is to bring the parties to a trial by concentrating their attention on
the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to
the parties of the nature of testimony required on either support of respective cases.”2 In other
words, the sole object of the pleadings is to ascertain the real disputes between the parties, to
narrow down the area of conflict and to see whether the two sides differ, to preclude the one
party from taking the other by surprise and to prevent miscarriage of the justice. And the
matter of dispute will be better understood if unnecessary information like law and evidence
be not given as these are the part of later stages and for as of now in order to know the precise
matter, only facts should be stated.
Rule 2 of Order VI categorically stated that the pleadings should state the material facts and
not the evidence and also legal inference should not be drawn from them. “The evidenciary or
probative value of the documents produced by the opponent cannot be pleaded in the written
statements.”3

1
Mogha’s law of pleadings (1983) at p.1
2
Ladli Pd v. Karnal & co., 1963 SC 1279
3
Birad mal Singhvi v. Anand Purohit, 1988 SC 1796

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Pleadings provide a guide for the proper mode of trial. They demonstrate upon which party
the burden of proof lies, and who has the right to open the case. They also determine the
range of admissible evidence which the parties should adduce at the trial. They also lay down
limit on the relief that can be granted by the court.

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BASIC RULES OF PLEADINGS

Sub-rule (1) of Rule 1 of Order VI lays down basic rules for pleadings which says “ Every
pleading shall contain, and contain only, a statement in a concise form of the material facts on
which the party pleading relies for his claim or defence, as the case may be, but not the
evidence by which they are to be proved.” On analysing it following principle emerges

 Pleadings should state facts and not law

 The facts should be material facts
 Pleading should not state evidence
 The fact should be stated in a concise form

The researcher will be dealing in his project only with the first two parts i.e Pleadings should
state facts and not law and the facts should be material facts

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FACTS AND NOT LAW

The first principle of pleadings is that they should state law. It the duty of the parties to state
only to state the facts on which they rely upon for their claims. It is for the courts to apply the
law to the facts pleaded.4 The law of pleadings may be tersely summarised in four words
“Plead facts not law.”5
Thus, existence of a custom or usage is a question of fact which must it specifically pleaded.
Likewise, where the defendant puts forward a defence on the ground of custom, he should
expressly plead such custom.6 Similarly, intention of a party is a question of fact which can
be inferred from the circumstances and requires to be pleaded. 7 When the defendant pleads
adverse possession, such plea should be expressly raised in the plead him. 8 When eviction is
sought on statutory grounds under a relevant Rent Act, those grounds should be pleaded in
the plaint for eviction.9 Again waiver or limitation or negligence is a plea of fact and should
be pleaded specifically.10
But legal consequences which flow from facts need not be stated in the pleading. It the duty
of the party to set out facts and not inferences to be drawn from such facts. Inferences of law
to be drawn from pleaded facts need not be stated in the pleading. 11 The practice of courts is
to consider and deal the legal result of pleaded facts, although the particular result is not
stated in the pleadings. A judge is bound to apply correct law even if incorrect law is pleaded
by the party.
But a plea about maintainability of the suit raises a question of law and need not be pleaded. 12
Likewise, when Hindu sons are sued for a debt incurred by their deceased father, it is not
necessary to in the plaint the Hindu Law as to pious obligation of Hindu sons to pay their
father's debt. Legal consequences which flow from also need not be stated in the pleading. So
also inferences of law to be drawn from pleaded facts need not be stated in the pleading. 13
The practice of courts is to consider and deal with the legal result of pleaded the facts,

4
Kedar Lal v. Hari Lal, AIR 1952 SC 47
5
Gouri dutt v. MAdho Prasad, AIR 1943 PC 147
6
Kochan Kani v. Mathevan Kani, (1971) 2 SCC 345
7
Goppulal v. Thakurji Shri Shri (1969) 1 SCC 792
8
Karim V. Sakina, AIR 1964 SC 1254
9
Duggi Veera v. Sakala Veera, (1987) 1 SCC 254
10
Mangal Sen v. Kanchhid Mal (1981) 4 SCC 780
11
Shaw v. Smith, (1924) 2 QB 429
12
State of Rajasthan v. Rao Raja Kalyan Singh , (1972) 4 SCC 165
13
Bell v. Lever Bros Ltd, (1931) 1 KB 557

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although the particular result is not stated in the pleading. A construction or interpretation of
a document, being a point of law, need not be pleaded.
This is based on the principle that a judge is bound to apply correct law even if incorrect law
is pleaded by a party.
A mixed question of law and fact, however, should be specifically pleaded. Similarly, a point
of law which is required to be substantiated by facts should be pleaded with necessary facts.14

14
Union of India v. Sita Ram (1976) 4 SCC 505

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MATERIAL FACTS

The second principle of pleadings is that they should contain a statement ofmaterial facts and
material facts only. Though the expression "material facts" has not been defined in the Code,
it means all upon which the plaintiffs cause action or the defendant’s defence depends, or, in
other words, those facts which must be proved in order to establish the plaintiff's right to
relief claimed in the plaint or the defendant's defence in the written statement.
In Udhav Singh v. Madhav Rao Scindia15 the Supreme Court has defined the expression
"material facts" in the following words “All the primary facts which must be proved at the
trial by a party to establish the existence of a cause of action or his defence are material facts”
Recently, in Virender Nath v. Satpal Singh16, the Supreme Court stated: “The phrase
‘material facts’ may be said to be those facts upon which a party relies for his claim or
defence. In other words, ‘material facts’ are facts upon which the plaintiff's cause of action or
the defendant's defence depends. What particulars could be said to be material facts would
depend upon the facts of each case and no rule of universal application can be laid down. It
is, however, absolutely essential that all basic and primary facts which must be proved at the
trial by the party to establish the existence of a cause of action or defence are material facts
and must be stated in the pleadings by the party.”
Whether a particular fact is or is not a material fact which is required to be pleaded by a party
depends on the facts and circumstances of each case.17
In Phillips v. Phillips18, cotton L.J. stated: “what particulars are to be stated must depend on
the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be
embarrassing to the defendants, should state those facts which will put the defendants on their
guard and tell them what they have to meet when the case comes on for trial.”
The word ‘material’ means essential or necessary for the purpose of formulating complete
cause of action. The term ‘contain’ emphasises that the facts which are material must be
stated in the pleading. A party must plead all material facts on which he means to rely at the
trial. If any material of fact is omitted, the statement of claim is bad and it would mean no
pleading and no cause of action for the suit. If material facts are not pleaded, a court cannot
permit evidence to lead. A decision of a court not given on the basis of pleading is no
decision in the eyes of the law and is without jurisdiction. If a party fails to disclose material
15
Udhav Singh v. Madhav Rao Scindia (1977) 1 SCC 511
16
Virender Nath v. Satpal Singh AIR 2007 SC 581
17
Virender Nath v. Satpal Singh AIR 2007 SC 581
18
Phillips v. Phillips (1878) 4 QBD 127

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facts, a decree passed or an order made by a court is without jurisdiction. Failure to plead
even a single material fact amounts to an incomplete cause of action and such pleading is
liable to be stuck off under rule.19
It is well settled law that evidence has to be tailored strictly in accordance with pleadings of
the party and cannot be a probing adventure in the dark springing a surprise on the opposite
party.
Thus it has been held that a plaintiff, filing a suit on the basis of title, must state the nature of
the deeds on which he relies in deducing his title. Similarly, a party relying upon the fact that
the notice of dishonour is not necessary, or the woman claiming maintenance has lost her
right on account of her incontinence, or the person who has signed the plaint in a suit by a
corporate body has authority under the code, is bound to allege those facts in his pleading.
It is not sufficient for the plaintiff to state that the act of the defendant was wrongful,
unlawful or improper. "Those epithets, under the present system of pleading are useless and
redundant. They add nothing whatever to the plaintiffs case. They are merely epithets of
abuse. They were formerly in declaration essential, because under that form of pleading, legal
rights but facts alone are stated now. He must state the facts upon which he proposes to rely,
contending that act was done wrongfully, illegally or improperly. Thus, where the plaintiff
claims by inheritance, it is not enough to say that he is 'heir-at-law'. He must state all
particulars showing his relationship on which he relies and which constitute his claim as an
heir. Again, in a suit. for compensation under Section 70 of the Contract Act, it is not
sufficient for the plaintiff to state that the goods were not delivered by him to the defendant
gratuitously. He has also to plead that the plaintiff delivered the goods lawfully to the
defendant; it was not a gratuitous act and the defendant enjoyed the benefits.20
On the same principle, where a contention has been raised that the contract with the
Government was not legal as it had been executed as required by Section 175 the
Government of India Act (or Article 299 of the Constitution), necessary and material facts
ought to be stated in the written statement. 21 Again, an assertion that self-acquired property of
a coparcener had been thrown into the common hotchpotch must be set out in the pleadings.
Likewise, a plea that a decree passed against a minor represented by a guardian was illegal
and not binding on the minor as the requirements of Order 32, Rule 7 of the Code had not
been observed must be explicitly raised in the pleading.22
19
Ram Prasad v. State of M.P., (1969) 3 SCC 24
20
Union of India v. Sita Ram, (1976) 4 SCC 505
21
Union of India v. Surjit Singh, (1979) 1 SCC 520
22
Laljee v. Sat Naraine, AIR 1962 Pat. 182

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It must, however, be remembered that a party should set out in his pleading material facts
only. He should not state facts which are not material or primary. He also need not mention a
fact which is not material at the stage of the suit even though such fact may become material
at a later stage. It has been rightly said that it is not proper to anticipate the contention or
objection of the adversary and to try to meet with it. To do so is 'like leaping before one
comes to the stile. To state the doctrine pithily, only those facts must be stated which must
and not may amount to a cause of action.
Thus, a plaintiff need not in his pleading (plaint) aver that a condition precedent had been
performed. But if the defendant contends that it had not been performed, he has to aver it in
his pleading (written statement) Similarly, where a party puts forward a plea as to hostile
title, he need not plead adverse possession in terms as such possession is a question of
evidence. But if he claims adverse possession, he has to assert not only physical possession
but also how and since when such possession commenced, what was the nature of the
possession and whether the real owner was aware about the fact of his adverse possession

Distinction between particular and material facts

The distinction between "material facts" and "particulars" cannot be overlooked. Material
facts are primary and basic facts which must be pleaded by the party in support of the case set
up by it. Since the object and purpose is to enable the opposite party to know the case it has
to meet, in absence of pleading, party cannot be allowed to lead evidence. Failure to state
material facts, hence, will entail dismissal of the suit. Particulars, on the other hand, are the
details of the case. They amplify, refine and embellish material facts. They give the finishing
touch to the basic contours of a picture already drawn so as to make it full, more detailed and
more informative. Thus, the distinction between material facts" and particulars" is one of
degree.
In Virendra Nath v. Satpal Singh23, the Supreme Court said: “A distinction between the
‘material facts’ and the ‘particulars’ cannot be overlooked. Material facts are the basic facts
which must be pleaded by the plaintiff or the defendant in support of the case set up by him
wither to prove his cause of action or defence. Particulars on the other hand are details in
support of the material facts by giving distinctive touch to the basic contours of a picture
already drawn so as to make it full, clearer and more informative. ‘Particulars’ thus ensure
conduct of fair trial and would not take the opposite party by surprise.”

23
AIR 2007 SC 581

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What are required to be stated in the petition are material facts to maintain the petition. There
is distinction between
 facta probanda (the facts required to be proved, i.e. material facts) and,
 facta probantia (the facts by means of which they are proved, i.e. particulars or
evidence).
It is settled law that pleadings must contain only facta probanda and not facta probantia. The
material facts on which the party relies for his claim are called facta probanda and they must
be stated in the pleadings. But the facts or facts by means of which facta probanda (material
facts) are proved and which are in the nature of facta probantia (particulars or evidence) need
not be set out in the pleadings. They are not facts in issue, but only relevant facts required to
be proved at the trial in order to establish the fact in issue. 
As Bullen, Leake and Jacob state: The function of particulars is to carry into operation the
overriding principle that the litigation between the parties, particularly the trial, should be
conducted fairly, openly and without surprises and incidentally to save costs. The object of
particulars is to open up the case of opposite party and to compel him to reveal as what is as
going to be proved at the trial, whereas, as Cotton, L.J. said, "the old system of pleading at
common law was to conceal as much as possible what was going to be proved at the trial'.
In Phillips v. Phillips24, Brett, LJ. rightly stated: "I will not say that it is easy to express in
wards what are the facts which must be stated and what matters need not be stated. The
distinction is taken in the very rule itself, between the facts on which the party relies and the
evidence to prove those facts, Erle, CJ. expressed it in this way. He said that there were facts
that might be called the allegata probanda, the facts which ought to be proved, and they were
different from the evidence which was adduced to prove those facts.
Halsbury refers to the function of particulars thus: “The function of particulars is to carry
into operation the overriding principle that the litigation between the parties, and particularly
the trial, should be conducted fairly, openly and without surprises and incidentally to reduce
costs. This function has been variously stated, namely either to limit the generality of the
allegation in the pleadings, or to define the issues which have to be tried and for which
discovery is required.”
All material facts must appear in the pleadings and the necessary particulars must be there so
as to enable the opposite party to know the case he is required to meet and to put him on his
guard. The rule is not of mere technicality and therefore, if a party omits to state material

24
(1878) 4 QBD 127

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facts, it would mean that the plea has not been raised at all and the courts will not allow the
party to lead evidence of that fact at the trial, unless the court gives that party leave to amend
his pleadings. The reason is that non-mention of material facts amounts to non-pleading and
therefore, no cause of action arises in favour of such party.
What particulars are to be stated depends upon the facts of the each case, but it is absolutely
essential that the pleading, not to be embarrassing to the defendant, should state those which
will put his opponent on their guard and tell them what they have to meet when the case
comes up for the trial.25

25
Charan Lal Sahu v. Giani Zail Singh, (1984) 1 SCC 390

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CONCLUSION

By analysing various case laws it is of no doubt that in pleading one is not allowed to state
about law but fact and facts would be only material facts. To include only facts in the
pleadings and not the law is fully reliable as the main objective behind doing this is to let the
other party know about the situation of the plaintiff and then it helps defendant to write his
written statement (W.S). To apply the law is the work of judge not the counsel by the virtue
of the fact that he/she has good knowledge of the law.
And while pleading one should always remember that there is difference between material
facts and particulars. Only those particulars should be stated in the pleadings which enable
the other party to know the case he is required to meet. One should always consider Facta
Probanda and Facta Probantia. Facta probanda are needed to be stated while facta
probantia are not.

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BIBLIOGRAPHY

1. Mulla code of civil procedure

2. Civil Procedure by C.K Takwani
3. International Encyclopaedia of Laws by Blanpain
4. Code of Civil Procedure by C.K. Thekker

Statues

5. Civil Procedure Code, 1973

Internet Sources

6. www.scconline.com
7. www.manupatra.com

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