Pleading and Drafting

Fundamental Rules of Pleading And Drafting

Introduction

Pleading and Drafting are the two foundation stones of our legal profession. The pleading involves the art of presenting material facts in a trial whereas the drafting involves the art of writing legal documents simply and concisely.

In this article, we will explore the meaning of pleading and drafting along with the fundamental rules governing them.

Meaning of Pleading

The literal meaning of the term ‘plead’ is a request politely and humbly.  The definition of pleading is given in Rule 1 of Order VI of the code of civil procedure, 1908 (CPC). As per this rule, the pleading is a plaint or a written statement. The term “Plaint” refers to the statement of the plaintiff that includes his grievance and requests the court to take any action. On the other hand, the term “Written Statement” refers to the statement of the defendant wherein he opposes or admits the allegations of the plaintiff.

Rules of Pleading

The rules of pleading can broadly be divided into 2 categories namely –

1). Fundamental rules

2). Particular or other rules

The Fundamental Rules of Pleading

  1. Pleading involve facts and not the law

The first fundamental principle of pleading states that it should only state the facts and not the law. The learned court in Kedar Lal v. Hari Lal held that in the matter of pleadings the parties should only state the facts on which they are relying and asking for a claim. It is the role of the court to apply the law on the given facts and not of the concerned parties. This rule is based on the doctrine of “pleading the facts, not the laws”

  1. Only material facts should be stated in the pleading

The second fundamental rule states that the parties should plead only “material facts” of the case. The term “martial fact” is nowhere defined in the Code of Civil Procedure but the hon’ble court in Union of India v. Sita Ram held that the “material facts” refer to those facts on which both the parties are relying to prove their case. In other words, material facts should have a significant impact on the outcome of the case.

  1. Pleading doesn’t involve Evidence

The facts of a case can be divided into two parts namely

  1. a) Facta probands– It means the material facts
  2. b) Facta probation – It means those evidence that supports the facts.

As per the third rule of pleading, the parties shouldn’t plead the evidence or the facta probantia. Only the material facts or facta probanda shall be stated in the pleadings.

  1. The facts should be stated in a concise manner

This principle is also known as the “rule of brevity”. As per this rule, the statements in the pleadings shall be presented in a brief and concise form. In Virendra Kashinath v. Vinayak N. Joshi, the hon’ble court held that the draft of the pleadings should be clear, crisp, and follow the rule of brevity. It is also important to note that the brevity doesn’t mean that we need to exclude necessary facts from the pleadings.

Other Particulars Rules of Pleading

The code of civil procedure also states some particular rules of pleading which involves that –

  • The pleading shall be duly signed and verified by an affidavit by one or more parties or by his pleader.
  • Every pleading should be divided into paragraphs and they shall be numbered accordingly.
  • Whenever undue influence, fraud, or misrepresentation is claimed in the pleading, they must be stated with the dates and items.
  • Generally, the amendment in a pleading is not possible. However, the court may allow the amendment only in two conditions. 1). When the amendment is necessary to resolve the real question of law 2). When the amendment is essential to secure the end of justice.

Meaning of Drafting

The term drafting refers to the art of writing complex legal documents like agreements, deeds, notices, etc. For drafting a legal instrument, It is very essential to have an in-depth knowledge of the facts, applicable law, and legal language.

Fundamental Rules of Drafting

  1. Rough Sketch of the draft document

This rule was suggested by renowned jurist Mr. Davidson. As per him, the primary rule for a draftsman is that he should prepare a rough outline of his document before actual drafting.   He should decide the scope of his document as per the objectives of the agreement. This rule guides the draftsman throughout the process as he can make necessary modifications to this process and doesn’t waste time later on.

  1. Skelton draft and its self-appraisal

After making the rough draft, the draftsman should prepare a skeleton draft wherein he should note down the important clause or things that he wants to insert in the document. At this stage, he should ensure that every important point shall be incorporated while following all the provisions of law.  Now, the draftsman should try to bind all these clauses together coherently while using simple and direct language. He should proofread it again and again to avoid repetition.

  1. Making the final draft ready

A good draftsman should ensure that all the provisions are easily comprehensible and convey the intended objective. Further, due care shall be taken to make sure that all grammatical errors should also be removed. Lastly, it should be duly stamped as per the applicable laws to give it a binding legal effect.

  1. Fowler’s Rule of Drafting

A great Jurist Fowler has given his basic rules of drafting which involves –

  • We should Prefer simple and direct words in place of heavy jargon.
  • we should prefer the concrete words in place of the abstract ones.
  • we should Prefer a single word in place of many and make the document crisp and concise.
  • We should prefer a short word in place of the long

Guidelines for Drafting

Lastly, these are some guidelines that are considered as the backbone of legal drafting –

  • The agreement shall be self-explanatory
  • The draftsman should be clear in his mind what he wants to convey in the document.
  • The draft should be capable of being understood even by a layman.
  • The document shouldn’t be ambiguous or vague.
  • The usage of negative language shall be confined only to certain clauses.
  • The rights and liabilities of the parties shall be explicitly highlighted in the document.
  • It is better to divide the entire text of the document into paragraphs. The paragraph can be further subdivided into clauses and sub-clauses.

Conclusion

The pleading guides the court in the entire trial. It assists the court in narrowing down the entire case to some definite issues and prevents the wastage of money and time. The core fundamental principle behind the pleading is that it should only state the material facts but not the evidence and the legal points.

The drafting is a specialized skill to write all the legal documents concisely and coherently. The principle rule while drafting is that we should first prepare a rough draft before making a final one. We should keep the language simple to enable a layman to understand the spirit of the law.

 

 

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