Facts and Evidence; Rule of Pleading

Published in Articles - Business Law Written by  0
Rate this item
(0 votes)
Facts and Evidence; Rule of Pleading
Introduction
One start by filing a plaint, with the competent court, clearly setting out the material facts.[3] Following this, the Court will send a notice to the defendant[4] along with a copy of the documents filed. If defendants choose to deny the claims, they can file a written statement[5] with their version of the material facts. The plaint and the written statement together will be referred to as “pleadings”, the drafting of which is governed by the Civil Procedure Code, 1908. Order 6, Rule 2 of the same states that;
 
“Every pleading shall contain, and contain only, a statement in concise form of the material facts on which the party relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved”
 
The general rules of pleadings[6] lay down what a pleading should contain, and are derived from the statute quoted above. The rules, in short, are as follow;
facts not law;
facts which are material;
facts, not evidence; and
all of the above in a concise form
 
This article aims to clarify the distinction between the material facts[7] and the evidence required to prove them, i.e. facts to be proved vs. evidence by which they are proved, as required by the 3rd rule of pleading.
 
Theoretical Difference 
Say a claim that your husband did not commit suicide against the conflicting claim of the Insurance Company that he did, will become the material facts. These are commonly referred to as the facts in issue.[8] In short, these are the facts that need to be proven or disproven, to win or defend the case. Legal literature calls these the facta probanda, i.e. the facts to be proved, and limits them to the ‘material facts’ only.[9] On the other hand, the particulars or the evidence through which we prove these facts are called the facta probantia.
 
A very basic example would be a breach of contract. If two people sign a contract, involving the sale of shares in a company for payment in cash, then non-payment of cash would be the fact, with the signed contract document being the evidence.[10]
 
Elaborating further, suppose there is a plea (i.e. pleading) alleging several irregularities in the way an election of candidates to the Legislative Assembly of Himachal Pradesh took place.[11] This will not require the plaintiff to mention specifically who fixed the voting machines, what the irregularities in the voter’s list were etc. in the “plaint”[12]. As all of those are evidentiary facts, i.e. facta probantia. So the facta probanda will only include allegations of corrupt practices, and other such irregularities and illegalities.
 
Taking another example, if the Insurance Company from before claims that your husband was depressed and had been in a miserable state for weeks before his death, and had even bought a pistol the day before his death then they must not put any of these facts in the pleadings. All of these facts will constitute evidence relied upon to prove the facts, i.e. the facta probantia. All that you have to claim, in the plaint, is that your husband died of suicide, i.e. the facta probanda.
 
Blurred Lines
It must be noted that in 1994, the Supreme Court considered facta probanda to be inclusive of both ‘material facts’ and “particulars” while keeping only ‘facts proving evidence’ as the facta probantia.[13] Then, in 2007, it interpreted facta probanda as simply ‘material fact’ while facta probantia as ‘particulars or evidence’.[14]
This distinction is important because it highlights the narrower acceptance of ‘material facts’. The distinction between ‘material facts’ and ‘particulars’ being one of degree, its application changes based on the circumstances of each case, and the nature and content of the documents.[15] It is similarly distinguished under the 2nd Rule of Pleading[16] which requires the facts stated in the pleading to be ‘material’.
 
For instance, the Supreme Court defined this difference as the extent of details provided by the facts, i.e. the ‘degree’ of detail. So in a case of breach of contract, the material facts will be covered by claiming that there was a document which legally obligated both parties to do certain things. The particulars will go into details such as the date on which it was signed, whether it was witnessed by anyone, what clauses the contract contained, etc. These are not the basic facts that must be pleaded by either side to prove their reason for filing the suit or to prove their defense.[17] Hence, such details are added at later stage of the suit.
 
But some cases aren’t as straightforward. They require a certain level of detail with respect to the facts alleged in the pleading itself, which would normally be considered ‘particulars’ under facta probantia.
 
Allowing for this extension of ‘material facts’ to include ‘particulars’, the Code provides for suits in which ‘condition of mind’, ‘notice’, and ‘implied contracts’ must be alleged with some supporting facts which go beyond the definition of ‘material facts’. This can be seen as a practical application of the general rules of pleading, extensively elaborated upon below.
 
Practical Application of the general principle
The Civil procedure code provides for rules 10, 11 and 12 under Order 6 which form part of the extension to the third rule of pleading. These rules provide for certain instances wherein this general rule may not be strictly followed. ‘Particular fact’ is a creation of these three sections, which are used to explain where the ‘material facts’ of the case have to be coupled with their ‘particulars’. The rules are as follows:
 
Condition of mind[18]
Whenever one is alleging a certain condition of mind; malice, fraudulent intention, knowledge etc, the same is alleged as a fact, without mentioning the circumstances which it is to be inferred from[19]. Unlike a pleading for fraud, here a simple allegation is insufficient to prove the claim.
For instance, the Supreme Court in the case of Bishundeo Narain v. Seogeni Rai[20] specified that in cases regarding fraud, undue influence, and coercion the plaint must carry in it full particulars of the case. So if ‘A’ is forcing ‘B’ to sign over his property to A by pulling a gun on him in a restaurant, the plaint must mention the fact of the gun placed on B’s head which shall establish the fact of undue influence. The CCTV footage may be used as evidence to prove the same at a later stage.
The reason behind providing particulars in such cases is the interpretations of rules 4 and 10 of Order 6 of the Code, which provides that if an allegation concerns a matter not connected with the condition or state of mind, then it is necessary to provide particulars thereof[21]. This can be better understood through an illustration.
Suppose a person is driving negligently and causes damage to property as a result of his rash driving.Then what is in question here is his ‘state of mind’, which was negligent. Alternatively, in a scenario where a contract to deliver goods in a certain manner is breached by the driver, a general allegation of negligenceon his part will not be enough. Particulars will have to be provided to establish both, the contract, and the breach caused by his negligence.
 
Notice[22]
‘Notice’ to the party is pleaded as simply claiming that it was duly provided to the other party. Only those ‘notices’ are pleaded to the other party which are necessary in relation to the case, which are alleged as facts. However, the courts have expanded the interpretation of section 80 of the Code to mean divulging certain facts in a notice.
This concept was evolved in the cases of Dhian Singh Sobha Singh v. Union of India[23] and State of Madras v. C. P. Agencies[24], wherein the notice must sufficiently state the cause of action and the precise reliefs asked for it. Thus, if by a negligent act of the railway authority some goods have been damaged in transportation, the notice must state the particulars off the act. These particulars shall lay out the terms which were given in the contract and then the details of the act which led to the damage[25].
 
Implied Contracts[26]
Under this rule, implied contracts and communications/circumstances between individuals are alleged as facts. Then the set of communications/circumstances, if implied, are alleged. A plaint for an implied contract shall carry with it particulars, which are required in addition to the general allegation of the fact of the contract being breached, or otherwise.
For instance, in the case of Haji Mohammed Ishaq Md. Sk. … vs Mohamed Iqbal & Mohamed Ali & Ors[27], an implied contract for part payment of the bags of tobacco delivered was established. The particulars provided to the court were the delivery and receipt of the goods, and the payment of money for the goods delivered. Thus, such conduct proved the existence of the implied contract.
 
Harms
In a scenario where these rules are not adhered to, there are two possible outcomes. The first is that the plaint is struck out where no material fact is pleaded. For instance, where a man claiming to be an Earl of Sterling pleads evidence to prove he is the Earl without ever alleging the same, i.e. no material fact is pleaded thus his plea was struck out in its entirety.[28]
The second, is that evidence cannot be lead on a material fact which has not been plead. For instance, a defendant cannot give evidence on the claim that he should receive certain lands as a gift from the plaintiff as he did not claim it in his ‘pleading’.[29]
 
Conclusion
We see that the Supreme Court has clarified the need for these rules of pleading. Essentially, they are required to help the courts narrow down the dispute between the parties, and to give clear notice to the other party that a particular question will be raised.[30] Hence, the pleadings should clearly set out the material facts upon which evidence will be lead.
This requires the court to actually ensure parties restrict their pleadings to the material facts as clearly elaborated upon above. So in a scenario where no material fact is pleaded, the plea may be struck out by the court.[31] In a scenario where a material fact is not pleaded, evidence for it cannot be given at a later stage.[32]
This makes sense given the volume of cases our judicial system is burdened with and the shortage of lawyers, judges, and other judicial staff required to deliver some form of justice. So to actually give relief to those approaching courts, these rules clearly lay down what amount of detail and evidence has to be presented to begin further proceedings. Hence, by restricting the framework of the future proceedings, the court can allocate appropriate resources accordingly.
In conclusion, we see that any such procedural code will be essential to the substantive law it attempts giving effect to. Without these general rules, there would be no end to the amount of facts, evidence, and laws pleaded in the ‘plaint’ or the ‘written statement’, which would defeat the very purpose of the ‘pleading’ itself.
 
 
[1] Life Insurance Company v. Terry 82 U.S. 580 (15 Wall. 580, 21 L.Ed. 236), here the wife is able to enforce her claim against the Insurance Company as the clause does not cover accidental death caused by the hands of the deceased.
[2] Competency being determined by different parts of the Code of Civil Procedure, 1908 (henceforth, ‘the Code’) read with individual State Courts Acts which list out the geographical, monetary, and subject matter limitations of each Court.
[3] This counts as an ‘institution of suit’ under Section 26 of the Code, which requires the person starting it to submit a written presentation of material facts known as a “plaint”.
[4] The Court is required to do this under Section 27 of the Code. This is done to let the person, against whom the charges are made, know what they are being charged with and give them a chance to dispute the material facts.
[5] A written statement is the defendant’s chance to dispute the facts that you are claiming to be true, they are dealt with under Order 8 of the Code.
[6] Rules must be referred to in that order, just like Newton’s or Euler’s Laws of Motion.
[7] There is a distinction between ‘material facts’ and ‘particulars’ which is created by a part of Order 6 Rule 2 under the the 2nd rule of pleading. “Material facts are the…basic facts which must be pleaded by [either side] …to prove [their] cause of action or defense” as stated in the case of Harkirat Singh v. Amrinder Singh (2005) 13 SCC 511.
[8] The clash of facts before the case goes to trial are what form the issues of a case, hence they are referred to as the “facts in issue”.
[9] Virender Nath v. Satpal Singh, (2007) 3 SCC 617.
[10] The Indian Contract Act, 1872 governs all matters relating to the substantive laws of contracts.
[11] Virender Nath v. Satpal Singh, (2007) 3 SCC 617.
[12] See, supra note 3.
[13] Mohan Rawale v. Damodar Tatyaba, (1994) 2 SCC 392, at pp.399
[14] Virender Nath v. Satpal Singh, (2007) 3 SCC 617, at pp.631-32.
[15] Mohan Rawale v. Damodar Tatyaba, (1994) 2 SCC 392, at pp.401 para.25
[16] See, supra note 7.
[17] Ibid
[18] Order 6, Rule 10 of the Code of Civil Procedure, 1908.
[19] Order 6, Rule 10 of the Code of Civil Procedure, 1908.
[20] 1951 AIR 250
[21] Sahu Vanaspati Traders vs Union of India (Uoi) on 5 March, 1965, AIR 1966 All 333
[22] Order 6, Rule 11 of the Code of Civil Procedure, 1908
[23] AIR 1958 SC 274
[24] AIR 1960 SC 1309
[25] Sahu Vanaspati Traders vs Union Of India
[26] Order 6, Rule 12 of the Code of Civil Procedure, 1908. An implied contract is one which is not created by signing a single document containing all the terms and conditions, rather one which is derived from multiple communications between the parties through letters, e-mails, chats, etc.
[27] 1978 AIR 798
[28] Digby v. Alexanderm 8 Bing. 416, 430.
[29] Siddik Mohamed Shah v. Mst. Saran, AIR 1930 PC 57; State of West Bengal v. Mir Fakir Mohammad, AIR 1977 Cal 29
[30] Raj Narain v. Indira Nehru Gandhi, (1972) 3 SCC 850, at pp.858 para.19
[31] Digby v. Alexanderm 8 Bing. 416, 430.
[32]State of West Bengal v. Mir Fakir Mohammad, AIR 1977 Cal 29

Introduction
One start by filing a plaint, with the competent court, clearly setting out the material facts.[3] Following this, the Court will send a notice to the defendant[4] along with a copy of the documents filed. If defendants choose to deny the claims, they can file a written statement[5] with their version of the material facts. The plaint and the written statement together will be referred to as “pleadings”, the drafting of which is governed by the Civil Procedure Code, 1908. Order 6, Rule 2 of the same states that;
 
“Every pleading shall contain, and contain only, a statement in concise form of the material facts on which the party relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved”
 
The general rules of pleadings[6] lay down what a pleading should contain, and are derived from the statute quoted above. The rules, in short, are as follow;
facts not law;
facts which are material;
facts, not evidence; and
all of the above in a concise form
 
This article aims to clarify the distinction between the material facts[7] and the evidence required to prove them, i.e. facts to be proved vs. evidence by which they are proved, as required by the 3rd rule of pleading.
 
Theoretical Difference 
Say a claim that your husband did not commit suicide against the conflicting claim of the Insurance Company that he did, will become the material facts. These are commonly referred to as the facts in issue.[8] In short, these are the facts that need to be proven or disproven, to win or defend the case. Legal literature calls these the facta probanda, i.e. the facts to be proved, and limits them to the ‘material facts’ only.[9] On the other hand, the particulars or the evidence through which we prove these facts are called the facta probantia.
 
A very basic example would be a breach of contract. If two people sign a contract, involving the sale of shares in a company for payment in cash, then non-payment of cash would be the fact, with the signed contract document being the evidence.[10]
 
Elaborating further, suppose there is a plea (i.e. pleading) alleging several irregularities in the way an election of candidates to the Legislative Assembly of Himachal Pradesh took place.[11] This will not require the plaintiff to mention specifically who fixed the voting machines, what the irregularities in the voter’s list were etc. in the “plaint”[12]. As all of those are evidentiary facts, i.e. facta probantia. So the facta probanda will only include allegations of corrupt practices, and other such irregularities and illegalities.
 
Taking another example, if the Insurance Company from before claims that your husband was depressed and had been in a miserable state for weeks before his death, and had even bought a pistol the day before his death then they must not put any of these facts in the pleadings. All of these facts will constitute evidence relied upon to prove the facts, i.e. the facta probantia. All that you have to claim, in the plaint, is that your husband died of suicide, i.e. the facta probanda.
 
Blurred Lines
It must be noted that in 1994, the Supreme Court considered facta probanda to be inclusive of both ‘material facts’ and “particulars” while keeping only ‘facts proving evidence’ as the facta probantia.[13] Then, in 2007, it interpreted facta probanda as simply ‘material fact’ while facta probantia as ‘particulars or evidence’.[14]
This distinction is important because it highlights the narrower acceptance of ‘material facts’. The distinction between ‘material facts’ and ‘particulars’ being one of degree, its application changes based on the circumstances of each case, and the nature and content of the documents.[15] It is similarly distinguished under the 2nd Rule of Pleading[16] which requires the facts stated in the pleading to be ‘material’.
 
For instance, the Supreme Court defined this difference as the extent of details provided by the facts, i.e. the ‘degree’ of detail. So in a case of breach of contract, the material facts will be covered by claiming that there was a document which legally obligated both parties to do certain things. The particulars will go into details such as the date on which it was signed, whether it was witnessed by anyone, what clauses the contract contained, etc. These are not the basic facts that must be pleaded by either side to prove their reason for filing the suit or to prove their defense.[17] Hence, such details are added at later stage of the suit.
 
But some cases aren’t as straightforward. They require a certain level of detail with respect to the facts alleged in the pleading itself, which would normally be considered ‘particulars’ under facta probantia.
 
Allowing for this extension of ‘material facts’ to include ‘particulars’, the Code provides for suits in which ‘condition of mind’, ‘notice’, and ‘implied contracts’ must be alleged with some supporting facts which go beyond the definition of ‘material facts’. This can be seen as a practical application of the general rules of pleading, extensively elaborated upon below.
 
Practical Application of the general principle
The Civil procedure code provides for rules 10, 11 and 12 under Order 6 which form part of the extension to the third rule of pleading. These rules provide for certain instances wherein this general rule may not be strictly followed. ‘Particular fact’ is a creation of these three sections, which are used to explain where the ‘material facts’ of the case have to be coupled with their ‘particulars’. The rules are as follows:
 
Condition of mind[18]
Whenever one is alleging a certain condition of mind; malice, fraudulent intention, knowledge etc, the same is alleged as a fact, without mentioning the circumstances which it is to be inferred from[19]. Unlike a pleading for fraud, here a simple allegation is insufficient to prove the claim.
For instance, the Supreme Court in the case of Bishundeo Narain v. Seogeni Rai[20] specified that in cases regarding fraud, undue influence, and coercion the plaint must carry in it full particulars of the case. So if ‘A’ is forcing ‘B’ to sign over his property to A by pulling a gun on him in a restaurant, the plaint must mention the fact of the gun placed on B’s head which shall establish the fact of undue influence. The CCTV footage may be used as evidence to prove the same at a later stage.
The reason behind providing particulars in such cases is the interpretations of rules 4 and 10 of Order 6 of the Code, which provides that if an allegation concerns a matter not connected with the condition or state of mind, then it is necessary to provide particulars thereof[21]. This can be better understood through an illustration.
Suppose a person is driving negligently and causes damage to property as a result of his rash driving.Then what is in question here is his ‘state of mind’, which was negligent. Alternatively, in a scenario where a contract to deliver goods in a certain manner is breached by the driver, a general allegation of negligenceon his part will not be enough. Particulars will have to be provided to establish both, the contract, and the breach caused by his negligence.
 
Notice[22]
‘Notice’ to the party is pleaded as simply claiming that it was duly provided to the other party. Only those ‘notices’ are pleaded to the other party which are necessary in relation to the case, which are alleged as facts. However, the courts have expanded the interpretation of section 80 of the Code to mean divulging certain facts in a notice.
This concept was evolved in the cases of Dhian Singh Sobha Singh v. Union of India[23] and State of Madras v. C. P. Agencies[24], wherein the notice must sufficiently state the cause of action and the precise reliefs asked for it. Thus, if by a negligent act of the railway authority some goods have been damaged in transportation, the notice must state the particulars off the act. These particulars shall lay out the terms which were given in the contract and then the details of the act which led to the damage[25].
 
Implied Contracts[26]
Under this rule, implied contracts and communications/circumstances between individuals are alleged as facts. Then the set of communications/circumstances, if implied, are alleged. A plaint for an implied contract shall carry with it particulars, which are required in addition to the general allegation of the fact of the contract being breached, or otherwise.
For instance, in the case of Haji Mohammed Ishaq Md. Sk. … vs Mohamed Iqbal & Mohamed Ali & Ors[27], an implied contract for part payment of the bags of tobacco delivered was established. The particulars provided to the court were the delivery and receipt of the goods, and the payment of money for the goods delivered. Thus, such conduct proved the existence of the implied contract.
 
Harms
In a scenario where these rules are not adhered to, there are two possible outcomes. The first is that the plaint is struck out where no material fact is pleaded. For instance, where a man claiming to be an Earl of Sterling pleads evidence to prove he is the Earl without ever alleging the same, i.e. no material fact is pleaded thus his plea was struck out in its entirety.[28]
The second, is that evidence cannot be lead on a material fact which has not been plead. For instance, a defendant cannot give evidence on the claim that he should receive certain lands as a gift from the plaintiff as he did not claim it in his ‘pleading’.[29]
 
Conclusion
We see that the Supreme Court has clarified the need for these rules of pleading. Essentially, they are required to help the courts narrow down the dispute between the parties, and to give clear notice to the other party that a particular question will be raised.[30] Hence, the pleadings should clearly set out the material facts upon which evidence will be lead.
This requires the court to actually ensure parties restrict their pleadings to the material facts as clearly elaborated upon above. So in a scenario where no material fact is pleaded, the plea may be struck out by the court.[31] In a scenario where a material fact is not pleaded, evidence for it cannot be given at a later stage.[32]
This makes sense given the volume of cases our judicial system is burdened with and the shortage of lawyers, judges, and other judicial staff required to deliver some form of justice. So to actually give relief to those approaching courts, these rules clearly lay down what amount of detail and evidence has to be presented to begin further proceedings. Hence, by restricting the framework of the future proceedings, the court can allocate appropriate resources accordingly.
In conclusion, we see that any such procedural code will be essential to the substantive law it attempts giving effect to. Without these general rules, there would be no end to the amount of facts, evidence, and laws pleaded in the ‘plaint’ or the ‘written statement’, which would defeat the very purpose of the ‘pleading’ itself.
 
 
[1] Life Insurance Company v. Terry 82 U.S. 580 (15 Wall. 580, 21 L.Ed. 236), here the wife is able to enforce her claim against the Insurance Company as the clause does not cover accidental death caused by the hands of the deceased.
[2] Competency being determined by different parts of the Code of Civil Procedure, 1908 (henceforth, ‘the Code’) read with individual State Courts Acts which list out the geographical, monetary, and subject matter limitations of each Court.
[3] This counts as an ‘institution of suit’ under Section 26 of the Code, which requires the person starting it to submit a written presentation of material facts known as a “plaint”.
[4] The Court is required to do this under Section 27 of the Code. This is done to let the person, against whom the charges are made, know what they are being charged with and give them a chance to dispute the material facts.
[5] A written statement is the defendant’s chance to dispute the facts that you are claiming to be true, they are dealt with under Order 8 of the Code.
[6] Rules must be referred to in that order, just like Newton’s or Euler’s Laws of Motion.
[7] There is a distinction between ‘material facts’ and ‘particulars’ which is created by a part of Order 6 Rule 2 under the the 2nd rule of pleading. “Material facts are the…basic facts which must be pleaded by [either side] …to prove [their] cause of action or defense” as stated in the case of Harkirat Singh v. Amrinder Singh (2005) 13 SCC 511.
[8] The clash of facts before the case goes to trial are what form the issues of a case, hence they are referred to as the “facts in issue”.
[9] Virender Nath v. Satpal Singh, (2007) 3 SCC 617.
[10] The Indian Contract Act, 1872 governs all matters relating to the substantive laws of contracts.
[11] Virender Nath v. Satpal Singh, (2007) 3 SCC 617.
[12] See, supra note 3.
[13] Mohan Rawale v. Damodar Tatyaba, (1994) 2 SCC 392, at pp.399
[14] Virender Nath v. Satpal Singh, (2007) 3 SCC 617, at pp.631-32.
[15] Mohan Rawale v. Damodar Tatyaba, (1994) 2 SCC 392, at pp.401 para.25
[16] See, supra note 7.
[17] Ibid
[18] Order 6, Rule 10 of the Code of Civil Procedure, 1908.
[19] Order 6, Rule 10 of the Code of Civil Procedure, 1908.
[20] 1951 AIR 250
[21] Sahu Vanaspati Traders vs Union of India (Uoi) on 5 March, 1965, AIR 1966 All 333
[22] Order 6, Rule 11 of the Code of Civil Procedure, 1908
[23] AIR 1958 SC 274
[24] AIR 1960 SC 1309
[25] Sahu Vanaspati Traders vs Union Of India
[26] Order 6, Rule 12 of the Code of Civil Procedure, 1908. An implied contract is one which is not created by signing a single document containing all the terms and conditions, rather one which is derived from multiple communications between the parties through letters, e-mails, chats, etc.
[27] 1978 AIR 798
[28] Digby v. Alexanderm 8 Bing. 416, 430.
[29] Siddik Mohamed Shah v. Mst. Saran, AIR 1930 PC 57; State of West Bengal v. Mir Fakir Mohammad, AIR 1977 Cal 29
[30] Raj Narain v. Indira Nehru Gandhi, (1972) 3 SCC 850, at pp.858 para.19
[31] Digby v. Alexanderm 8 Bing. 416, 430.
[32]State of West Bengal v. Mir Fakir Mohammad, AIR 1977 Cal 29
Read 18 times

Leave a comment

Make sure you enter all the required information, indicated by an asterisk (*). HTML code is not allowed.