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Civil Procedure - Topic 2 - Pleadings

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Civil Procedure - Topic 2 - Pleadings

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hisscaram
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Civil Procedure – Topic 2

Pleadings
Importance set out in Odgers – Principles of
Pleadings and Practice:
“The defendant is entitled to know what it is that the
plaintiff alleges against him; the plaintiff in his turn is
entitled to know what defence will be raised in answer
to his claim.”

The term “pleadings” actually refers to the


documents which are filed in a Court case by the
respective parties and pleadings are filed in turn.

There are rules/principles to be abided to when


drafting pleadings.
Principles of Pleadings
 Odgers, Principles of Pleadings and Practice,
Chapter 7, at Page 72, explains ‘The Function
of Pleadings’ as follows:-
 “The main purpose of these rules is compel
each party to state clearly and intelligibly the
material facts on which he relies, omitting
everything immaterial, and then to insist on his
opponent frankly admitting or explicitly denying
every material matter alleged against him: by
which method they must speedily arrive at an
issue.”
Principles of Pleadings
 The fundamental rules governing pleadings are set
out in Odgers, Principles of Pleadings and
Practice:
 “This rule involves and requires four separate things:
 (i.) Every pleading must state facts and not law,
 (ii.) It must state material facts and material facts
only,
 (iii.) It must state facts and not the evidence by which
they are to be proved,
 (iv.) It must state such facts in a summary form.”
Principles of Pleadings
 Rule 13 of the Supreme Court Rules 2000 which
reads as follows:-
 “13. Contents of Pleadings
(1) Every pleading shall clearly and distinctly state all
matters of fact that are necessary to sustain the
plaint, plea or counterclaim, as the case may be.
(2) No pleading shall contain any statement that need
not be proved.
(3) No pleading shall state any fact (a) which the law
presumes in favour of the party pleading (b) in
relation to which the burden of proof lies on the other
party, unless the fact has been specifically denied.”
Types of Pleadings/ Initiation of
Proceedings before Supreme Court
 The principal manner of seizing the civil and
commercial jurisdiction of the Supreme
Court of Mauritius is by way of Plaint with
Summons. (Rule 2 of the Supreme Court
Rules 2000)
 For prerogative orders or circumstances
requiring urgency – motion paper and
affidavit
 An action before judge in chambers –
proecipe and affidavit
 Supreme Court Rules 2000 –Rule 2
Ordinary Civil Action before the
Supreme Court
 Plaint with Summons
 Plea
 Reply
Initiation of Proceedings by Motion
Paper
 The motion paper
 Affidavit of Applicant
 Affidavit in rebuttal (Respondent)
Initiation of Proceedings by Petition
 Petition
 Affidavit in Support
 Notice of Objection
Pleadings before Subordinate
Courts
 Initiation of proceedings by way of Plaint
 Demand of Particulars/ Demand of
further and better particulars
 Plea/Counterclaim
 Reply
Forms and Contents of Pleadings –
Rule 3 of Supreme Court Rules
 .Contents of plaint with summons
 (1)A plaint with summons shall-(a)state the names, occupations and
addresses of the parties;(b)state the substance of the cause of action;(c)call
upon the defendant or other party to appear before the Court on a date
and time specified in the summons, hereinafter referred to as "the
returnable date";(d)be accompanied by a notice describing the
documentary evidence which the plaintiff intends to adduce at the hearing
and indicating where the documents may be examined within a reasonable
time before the hearing.(
 3)Every plaint with summons shall be endorsed with the full name, office
address and stamp of the plaintiff's attorney which shall be the elected
domicile of the plaintiff.
 (4)Every plaint shall specify -(a)the purpose of the appearance of the
defendant or other party;(b)that a failure by the defendant or other party
to appear or be represented may result in the Court delivering judgment
against him in favour of the plaintiff in terms of the plaint;
 (5)Any misnomer or inaccurate description of any person or place in any
plaint or summons shall not vitiate any process where the person or place
is described so as to be commonly known
Form/ Contents of Pleadings
 Rule 13 of the Supreme Court Rules 2000:
 a. Every pleading shall clearly and distinctly
state all matters of fact that are necessary to
sustain the plaint, plea or counterclaim as
the case may be.
 b. No pleading shall contain any statement
that need not be proved.
 c. No pleading shall state any fact presumed
in favour of the party pleading; or in relation
to which the burden of proof lies on the
other party, unless the fact has been
specifically denied.
Odger’s version of Form/Contents
of Pleadings
 Every pleading must state facts and not
law;
 Every pleading must state material facts
and material facts only;
 Every pleading must state facts and not
the evidence by which they are to be
proved;
 Every pleading must state material facts
concisely, in a summary form.
Material Facts
 Facts that are necessary to establish the cause of action and
any party’s entitlement to the reliefs prayed for from the
Court.
 “a cause of action” comprises of “every fact which is material
to be proved to enable the Plaintiff to succeed; in other words,
every fact which, if traversed, the plaintiff must prove to obtain
judgment” vide Heera v Ramjan & Ors.[1976 MR 220] “so
that a plaint which will not aver all material facts would,
therefore, not disclose a cause of action” vide Geerjanan P. v
The Mauritius Commercial Bank Ltd [2006 SCJ 320],
Compagnie Mauricienne de Textile Limitée v Scott Shipping
International Ltd.[2015 SCJ 8], Metex Trading Co.Ltd. v The
State of Mauritius & Ors.[2014 SCJ 219], Constantin Roland
v Jhuboo Scilla Par Vaty [2014 SCJ 221] and Tostee J.Y. v
Property Partnerships Holdings (Mauritius) Ltd [2015 SCJ
41].
Case Law
 In Premchand I & Ors v Jagoo A. R. & Ors [2013
SCJ 184], it was held that:-
 “[…] It is a cardinal principle of pleading that
pleadings should contain material facts necessary
for the purpose of formulating a complete cause
of action and the material facts must be stated in
a very summary form (per Scott L.J. in Bruce v
Odhams Press, Limited [1936] 1 K.B. at p 712).
The function of pleadings is to ascertain with
precision the matters on which the parties differ
and the points on which they agree; and thus to
arrive at certain clear issues on which both
parties desire a judicial decision (see Odgers on
Pleadings and Practice 23rd Edition).
Rules applicable to Pleadings before
Subordinate Courts
 In Jhundoo v Jhuree [1981 MR 111], it
was held that:
“…There is no relevant enactment in our
Intermediate and District Courts (Civil
Jurisdiction) Rules. But it has been our practice
when those rules are silent, to be guided by our
Supreme Court Rules, unless there is some
repugnancy arising from the different nature of
the Courts. […]”
Particulars of Pleadings
 Rule 10 of the Supreme Court Rules
2000 provides as follows:-
“10. Particulars of plaint with summons
The defendant or any other party may apply
for such particulars of the plaint as he may
require and for inspection of any document
which the plaintiff proposes to adduce in
evidence.”
Striking out pleadings
 Court to strike out pleadings if:
a. The pleadings contain unnecessary statements,
for example tender of evidence in pleadings or
matters of law which have been pleaded.
b. The pleadings are vexatious or frivolous.
c. The pleadings fail to disclose a cause of action.
‘Caesar v MRA [2012 SCJ 11]’
d. The pleadings constitute an abuse of the
process of the Court. ‘Ouverture et Profilage
Ltée v De Launay [2012 SCJ 184]’
(Rule 15 of the Supreme Court Rules)
Amendment of Pleadings
 Rule 17 of the Supreme Court Rules 2000:
“Amendments of pleadings
(1) The Master may grant the amendment of any
pleading and the Court may at the hearing of a
case grant an amendment of any pleadings, in such
manner and on such terms as may be just and
reasonable, for the purpose of determining the real
question in controversy between the parties.
(2) An application for an amendment under paragraph
(1) shall be made by way of motion.
(3) ...”
Caselaw regarding amendment of
pleadings
 In Emtel Limited v The Information and
Communication Technologies Authority & Ors
[2009 SCJ 63] it was observed that:- “the
application of the principles set out in rule 17(1) will
depend on the fact of each case, the nature of the
proposed amendments and the circumstances in
which the amendments are sought.”
 In Innodis Ltd v/s C. Madayah [2016 SCJ 284], the
Court had this to say on a motion for
amendment at trial stage:-
“[…] True to say also that the court would be less
inclined to grant such amendments at the trial stage,
the more so if same were apparent well before…
Amendment to Pleadings
 An amendment to the pleadings will be
allowed in the following cases:
a. Where it is just and reasonable for
determining the real question in
controversy between the parties.
b. When there is a change in the status of the
parties.
c. Where one of the parties has passed away.
d. Where a third party is made to intervene
in the case.
Amendment to Pleadings
 Amendments to pleadings will be refused in the
followings circumstances:-
a. The application is made in bad faith.
b. If the proposed amendment will cause undue delay
or will unfairly prejudice the adverse party.
c. If the amendment is irrelevant or merely raises a
technical point.
d. If the amendment is made at a late stage.
e. When it amounts to a revocation of an admission
unless it is shown that the admission was due to an
error of fact. This is in line with the case of Joyseery
v. Pattar & Anor [1971 MR 75]
Case Law regarding amendment of
Pleadings
In Patel v. Beeneesreesingh [2012 UKPC 18]; [2011 PRV 79], it
was held that the Supreme Court has wide powers of
amendment and it can order amendment of pleadings at any
time but before judgment and provided that it does not change
the cause of action and cause prejudice to other parties.
In Compagnie des Magasins Populaires v. Govt. of Mauritius
[2012 SCJ 200], it was held that amendment of pleadings are to
be allowed where it will resolve the real controversy between
the parties and where justice so requires provided no prejudice
will be caused to the other party – vide Emtel Ltd v. ICTA
[2009 SCJ 63].
In ISKCON v. Ascencia Ltd [2012 SCJ 215a], it was held that
the Supreme Court Rules provide for the widest discretion to
allow for an amendment to an action including joining a party
to an existing cause of action.
Amendment of Pleadings before
Subordinate Courts
 Rule 48 of the District, Industrial and
Intermediate Court Rules 1992 which provides as
follows:
“48. The District Magistrate may, at all times, amend all
defects and errors, both of substance and of form, in
any proceedings in civil matters, whether there is
anything in writing to amend by or not, and whether the
defect or error be that of the party applying to amend
or not; all such amendments may be made with or
without costs, as to the Magistrate may seem fit, and
also such amendments as may be necessary for the
purpose of determining, in the existing suit, the real
question in controversy between the parties shall be so
made”.
Modes of Service
 There are three main modes of service of
court processes in Mauritius:
 a. Registered Post with Advice of Delivery
(For Subordinate Courts – The District,
Industrial and Intermediate Rules 1992; For
Supreme Court- Rule 6 of the Supreme
Court Rules)
 b.Service by Court Usher/Private Registered
Usher
c. Substituted Service
Questions
 Types of Pleadings before Supreme Court
and Subordinate Courts
 Under what circumstances may an
amendment to pleading be: (a) allowed;
(b) refused?

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