STRIKING OUT PLEADINGS
— An Overview1


If a pleading is served which does not allege a cause of action, or a defence, which is available as a matter of law, the party on whom it is served can move to strike it out. There are many important analyses of the law that have taken place in court on a motion to strike out a pleading, or on its procedural predecessor, demurrer. Well-known examples are Donoghue v Stevenson2, and Mutual Life & Citizens Assurance Co Ltd v Evatt3. The dispute that is being decided on a strike out motion, is whether the allegations made in the pleading allege a cause of action which is known to the law, or found a claim for remedy in a way known to the law, or state a defence known to the law.
That a statement of claim, or a defence, can be struck out in whole or part, is useful for the efficiency of the court system, in that it can prevent hopeless claims or hopeless defences from going to trial. But it is also quite useful for the parties. If, at a comparatively early stage of the litigation process, they know that a particular claim or defence is not available, that knowledge reduces the scope of uncertainty about the whole litigation, and increases the prospect that the whole of the litigation will settle.
There are tactical considerations in a lawyer deciding whether to run a strike out application. There is often no point in doing so, if any defect in the pleading can be cured. To run a strike out application in those circumstances is just to give your opponent a tutorial on how to run his or her case. Sometimes, though, if a pleading has a deficiency which cannot be cured, it can be a very effective way to end the litigation. Sometimes also, if the pleading is such a mess that you really don’t understand what the case you are called on to meet is, and efforts to resolve the inadequacies of the pleading through correspondence with the other side, or calling to talk to them, have failed, you need to take a motion to strike out. Here, the notion of a pleading being embarrassing comes in.
A Pleading should be concise. Law envisages disclosure of faith and not proof of facts. No evidence need be pleaded. Object of Order 6. Rule 2 CPC is two fold.-(1) to afford other side the limitation regarding partition facts of the case , and (2)to enable the court to issue what is really the issue of the arties 4.Order 6 R 2 specifies that every pleading shall contain material facts and not the evidence by which they are to be proved .5
Order 6 R 16 , CPC talks about striking out pleadings.
It says the Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading –
(a) Which may be unnecessary , scandalous, frivolous or vexatious, or
(b) Which may tend to prejudice , embarrass or delay the fair trial of the suit, or
(c) Which is otherwise an abuse of the process of the court
An embarrassing or a pleading which is an abuse of the process by a court is liable to be struck off. It is a question of fact. The power under this rule is discretionary It should be exercise with great care and caution . It should be exercise only when some substantial objection of pleadings if complained of or some real embarrassment is shown. A claim or defence which a party is not entitled to make use eg. Plea of Benami in a suit or promissory note or a pleading which contains irrelevant allegation is embracing.
If you are contemplating taking a strike out motion, it is important to try and sort out the difficulties you have with the pleading with the other side, before approaching the court. Part of the reason is that the court does not appreciate being asked to decide this sort of dispute if no attempt has been made to sort it out informally - it really can be a waste of the court’s time. As well, you owe it to your opponent as a matter of professional courtesy to try and sort it out. The allegation you are making, when taking a strike out application is, fundamentally, that the opposing pleader is a lawyer who has made an error of law in the pleading. Now there can be differences of opinion between competent lawyers about what allegations make a sustainable pleading, and what do not, but not all strike out claims fall within this area of legitimate difference of opinion. If what you allege is an elementary error in failing to plead an element of a cause of action, or the basis for a remedy claimed, you really should talk to your opponent about it before you go to court on a strike out. You also owe it to your client and yourself not to bring a strike out motion without having endeavoured to resolve the problem with the other side. If a pleading problem which could readily have been cured by discussion is brought to court, the court may well make an order that the person who failed to have the discussion pay the costs.
The court is empowered to strike out pleading if it is necessary, scandalous, frivolous or vexatious, or tends to prejudice, embarrass or delay the fair trial of the suit or is otherwise an abuse of the process of the court6. Generally, a court does not advise parties as to how they should draft their pleadings. But this is subject to the rider that the parties do not offend the rules of pleadings by making averments7 or introducing pleas which are unnecessary, which may tend to prejudice ,embarrass or delay fair trial. In such cases, the court will interfere. This power ,however, must be exercised by the court sparingly8.
Recently, in Sathi Vijay Kumar v. Tota Singh9, considering English and Indian decisions on the point , the Supreme Court stated:
“It cannot be overlooked that normally, a court cannot direct parties as to how they should prepare their pleadings. If the parties as to how they should prepare their pleadings. If the parties have not offended the rules of pleadings by making averments or raising arguable issues ,the court would not order striking out pleadings. The power to strike out pleadings is extraordinary in nature and must be exercised by the court sparingly and with extreme care, caution and circumspection.”

BIBLIOGRAPHY
BOOKS

· C.K Thakker Civil procedure:- 6th edition, Eastern book company, Lucknow, 2009.
· Harwood Giles:- Odger’s Principles of Pleading and Practice, ed(12th), 2000.
· Mulla:- Code of Civil Procedure, 14th edition, Lexis Nexis.
· Srivastava R.D:- The Law of Pleadings Drafting & Conveyancing, ed(11th) 2003, Central law agency.
· Halsbury’s Law of India, Vol. 29(2), p.290.005.
· Halsbury’s Law of India, Vol. 8, p.300.385-300.394