The Art of Pleading (An Insight)
-- Lovkesh Jain, Advocate --

Art of Pleading

‘Consider the reason of the case, for nothing is law that is not reason’
-Sir John Powell

The word ‘Plead’ originates from French word ‘Plaid’  meaning ‘discussions’ and gradually became ‘Plaidier’ in French  meaning  ‘Go to Law’ to English word ‘Plea’ meaning to wrangle. Thus the etymological meaning of word pleading is ‘Arguments or discussion in Law’.

Now let’s see how Pleading has been defined in Indian Law;
“Pleading” shall mean plaint or written statement. Pleading are statement in writing delivered by each party alternatively to his opponent, stating what his contention will be at the trial, and giving all such details as his opponent needs to know in order to prepare his case in answer. As a rule, there are not more than two pleading in any suit;

1.     A plaint, in which the plaintiff sets out his cause of action with all necessary particulars so as to his injuries and losses.

2.    A written statement, in which the defendant deals with every material fact alleged by the plaintiff in his plaint, and also states any new facts, which are in his own favour.

Pleading have been more concretely defined by Mr. David Dudley Field, the champion reforming the New York Civil Code in 1848;

“The pleadings, we have said, are the written allegations of the parties of the cause of action on one side,  and the defence on the other. Their object is three fold; to present the facts on which Court is to pronounce the law; to present them in such a manner as that the precise point in the dispute shall be perceived, to which proofs may be directed; and to preserve the records of the rights determined.” 

Basically ‘Pleadings’ is the foundation on which the strength of the case depends throughout. This is the one document which shall be referred to at every stage of the case. Therefore, it is imperative that the pleadings are very carefully drafted.
Proper pleadings would also avoid delay and minimize the expenditure of litigation. It has been many times said by the Courts in judicial Pronouncements that without proper pleadings, any amount of evidence is of no use and that such evidence shall not be looked into by the court (AIR 1930 PC 57, AIR 1966 SC 1861, AIR 1987 SC 1242).

Before we move on to the important points to be kept in mind while drafting a pleading, let’s, in brief, understand the purpose of Pleadings;

1.     To clearly and precisely define the issues or questions of facts and law which are in dispute between the parties and that are to be adjudicated upon.

2.    To provide the opposite party a fair and proper notice of the case or defence.

3.    To provide a record of issues and question of law to be decided so as to prevent future litigation.

4.    To limit the discovery documents so as to save time and efforts.

5.    To limit the requirement of oral evidence.

6.    To fix the onus to proof.

7.    To provide the court with sufficient material to adduce the facts and evidence produced by both the parties.

8.    To enlistthe reliefs sought from the Adjudicating Authority/Court.

Now we discuss some of the points which shall help us in drafting of good pleadings. Since we are discussing the pleadings in Taxation matters, where most of the pleadings are in ‘Civil’ nature and the as an assesse our pleadings shall mainly be in form of written statement to the allegation raised by the   discussion in this article shall be around the Civil Pleadings.

1.     Rules of Pleading: Before coming to the ‘Art of Pleading’ let’s first understand the Rules of the game. 

2.     Whole facts: List of each and every fact pertaining to the case no matter how minor it is. The basis taken at pleading stage shall only be the on our side till the case is finally decided. Its easy to delete the grounds but not to add them. Therefore even a trite ground which can help us in our claim or defence even remotely should be included in our ‘Pleadings’. There are few provisions in the law related to statement of facts which are summarized as below;

Material fact: According to Order 6, Rule 4, the following are material facts:---

1.     If you allege fraud, cheating, misrepresentation, then give particulars of such fraud etc.If it is not done then the Court will take notice brevity (briefness, shortness) allegation of fraud.

2.    Every fact which a plaintiff “must allege in order to show a right to sue”.

3.    Every fact which a defendant “must allege in order to constitute his defence”.

4.    If either the plaintiff or the defendant puts their case on alternative grounds, every fact vital to any such alternative ground.

5.    Every fact which may not be necessary to show a right of suit but which the plaintiff will be required to prove at the trial to support his case.

6.    Every fact, which the defendant is required to prove at the trial, and which will be a defence either wholly or partly to the plaintiff’s claim.

Presumption of law: Order 6, Rule 13 of the Civil Procedure Code lays down “neither party need in any pleading allege any matter of fact which the law presumes in his favour or to which the burden of proof lies upon the other side, unless the same has first been specifically denied.

Verification: It is an admission of the truth of the facts asserted in plaint and written statement. Without making verification plaint remains incomplete and liable to reject.

1.     Avoid too much of law: Pleading is the statement of Fact. Many a times we are tempted to cite case laws in too much detail in the pleading. The case laws may camouflage the important facts which can be missed out by the Adjudicating officers. It is always better to keep in mind that we can certainly cite as many laws as we want at all stages of the case but we cannot bring in new facts on records unless they are actually new and not known at the time of drafting the pleading.  Therefore any pleading should be mainly driven by facts and the law should be referred only precisely.   

2.    Avoid evidence: Another common mistake we tend to do while drafting pleadings is that we over emphasize some facts to the extent that we also try to attach all the possible evidence to it. This practice has two main drawbacks; (i) Stating the facts in details along with the evidence may cause the loss of interest by the adjudicating officer who is not prepared to peruse the evidence at that stage; (ii) Our producing all the evidence gives our opponent enough time to counter them. There is a stage in litigation process where the parties are called to produce evidence in favour of their pleadings. The evidences should be produced at that stage not with the pleading. 

3.    Avoid anticipation: Sometimes while drafting pleading we go overboard to imagine and anticipate the future allegations or the replies of the opponents in our plaints. This way we rather help the opponent by making his job simple. The opponent might not have thought of it but we bring on record his side. Secondly we are distracted from our very own facts which can help us in our case. Therefore, do not anticipate opponent’s pleading and plead to anything, which is not alleged against you. 

4.    Be concise: Too much detail loses the main point. So avoid explanation of our facts in to much detail in the pleadings. There is a difference in mentioning ‘Detailed Facts’ and ‘Facts in Detail’ in the pleadings. The detailed facts mean that all the possible facts should be incorporated in the pleadings where as ‘Fact in detail’ means over explaining of single fact. So while drafting a pleading state your facts concisely and precisely. 

5.    Avoid arguments: If we are drafting the written statement and we do not agree with what opposite party has pleaded, we should simply deny the allegation and state our side of the fact. We should avoid going beyond this. Some time we also insert the probable argument of the other party and then reply to it. This is a good strategy for preparing our hand outs for arguments in court/adjudicating authority (we shall have separate article on this) but not at the stage of drafting the pleadings. 

6.     Structure of our Pleading:  Now let’s discuss how an effective pleading is to be structured. The structure of pleading is important so that we can effectively communicate and even convince the adjudicating officer about our point of view. Mainly our pleading should be divided into five sections;

7.     What happened : This part of the pleading would consist of all the facts which we would like the Court to take note of. As mentioned above, this is the opportunity (may be last one) to enumerate all the facts before the court.

8.    Why did it happen : This section consists of reasons for our case or for our defence as to why the relief sought by us should be and relief sought by the opponent should not be granted by the Court. This section is also called logical section. For example while drafting a pleading for Show Cause Notice issued to us by the Central Excise Authority, we shall plead the notice being time barred in this section.

9.    Reason for my approach: In this section of the pleading, I am supposed to justify my action with legal provisions. So all the statutory provisions or the judgment on which I want to rely upon are to be mentioned in this section of the pleading.

10. Reasons for Opponent’s approach: The reasons why the opponent might thought it to put the points in its pleadings would be briefly covered in this section.

11. Why Court should consider my relief: In this section of the pleadings, I am supposed to reinforce my plaint or to rebut the allegations of the opponent backed by logic and law.

12. This section helps the court to understand as to exactly why I am at its doors. The prayer clause should be specific and should consists of all the reliefs I need to seek from the Court.Therefore in nutshell, a pleading shall have following skeleton structure;

1.    The Parties;

2.    The Material Facts;

3.    The logical and legal backing;

4.    Relief Sought.

5.    The Winning Draft: Now, at the end some unconventional tips to prepare a winning draft of the pleadings; 

6.    Catch Phrases  : For some of the facts we wish to reinforce in the mind of adjudicating authority, we need to define those facts with some catch phrase such as we wish to submit to the adjudicating authority that we availed Input Tax Credit in proper manner. And we have to refer the ‘Input Tax Credit’ in our pleadings. It would be advisable to use the phrase ‘ Properly availed Input Tax Credit’ and use this phrase wherever the we want to use the word ‘ Cenvat Credit’. Always remember that repetition reinforces. At the same time the word of caution is that too many adjectives in a pleading can also have adverse effect.

7.    Headings: Heading are meant to crate the first impression in the mind of adjudicating authorities and act as a guiding tool to our submissions. The headings are quite helpful to us or our lawyers at the time of arguing the case as they can direct us and the Court straight to the point; just like the index oa a book. Therefore Headings should be adequately descriptive and the relevant facts/issues should be covered under the heading.

8.    Restrain your emotions’ is the mantra while drafting a pleading or especially the defence. The plaintiff, purposefully, puts in some facts or issues to de-focus or instigate us. So we should always avoid inappropriate words in our pleadings and should always use a disciplined, concise and accurate language. 

9.    Numbering: Do number all the pages of your pleading and the annexure attached to it as tomorrow we may not be able to make out if some page of our pleading has gone missing. 

A pleading, as foundation of building, is not drafted but developed with proper planning, review, re-evaluation, re-wordings and review before its final submission.  

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