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Date and Time: Monday 12 September 2022 3:52:00 PM IST
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Documents (56)
1. CHAPTER I PRINCIPLES OF LEGAL DRAFTING
Client/Matter: -None-
- 1.1 Introduction Client/Matter: -None-
- 1.2 Significance of Drafting Client/Matter: -None-
- 1.3 Principles of Legal Drafting Client/Matter: -None-
- 1.4 Conclusion Client/Matter: -None-
- 2.1 Introduction Client/Matter: -None-
- 2.2 Forms of Notice Client/Matter: -None-
- 2.3 Modes of Service of a Notice Client/Matter: -None-
- 2.4 Drafting of Legal Notices Client/Matter: -None-
- 2.5 Notice Reply Client/Matter: -None-
- 2.6 Specimens Client/Matter: -None-
- 3.1 Introduction Client/Matter: -None-
- 3.2 Objectives of Pleadings Client/Matter: -None-
- 3.3 Fundamental Rules Client/Matter: -None-
- 3.4 Construction of Pleadings Client/Matter: -None-
- 3.5 Striking of Pleadings Client/Matter: -None-
- 3.6 Alternative and Inconsistent Pleadings Client/Matter: -None-
- 3.7 Signature and Verification of Pleadings Client/Matter: -None-
- 3.8 Amendment of Pleadings
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Client/Matter: -None-
- 3.9 Consequences of Failure to Amend
Client/Matter: -None-
- 3.10 Conclusion
Client/Matter: -None-
- 4.1 Introduction
Client/Matter: -None-
- 4.2 Particulars of Plaint
Client/Matter: -None-
- 4.3 Rejection of Plaint
Client/Matter: -None-
- 4.4 Signature and Verification of Plaint
Client/Matter: -None-
- 4.5 Annexures to be Filed Alongwith the Plaint
Client/Matter: -None-
- CHAPTER V DRAFTING OF CIVIL SUITS
Client/Matter: -None-
- 5.1 Suit for Defamation
Client/Matter: -None-
- 5.2 Suit for Nuisance
Client/Matter: -None-
- 5.3 Suit for Trespass
Client/Matter: -None-
- 5.4 Suit for Malicious Prosecution
Client/Matter: -None-
- 5.5 Suit for Negligence
Client/Matter: -None-
- 5.6 Suit for Recovery of Price for Goods Sold and Delivered
Client/Matter: -None-
- 5.7 Suit for Dissolution of Partnership and for Taking Accounts
Client/Matter: -None-
- 5.8 Suit Based on Promissory Note
Client/Matter: -None-
- 5.9 Specific Performance of a Contract
Client/Matter: -None-
- 5.10 Suit for Cancellation of Instruments
Client/Matter: -None-
- 5.11 Suit for Partition
Client/Matter: -None-
- 5.12 Suit for Eviction and Possession
Client/Matter: -None-
- 6.1 Introduction
Client/Matter: -None-
- 6.2 Time of Filing of the Written Statement
CHAPTER I PRINCIPLES OF LEGAL DRAFTING
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed Dr Medha Kolhatkar
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER I PRINCIPLES OF LEGAL DRAFTING
CHAPTER I PRINCIPLES OF LEGAL DRAFTING
The difficult task after one learns how to think like a lawyer, is relearning how to write like a human being.
— FLOYD ABRAMS
End of Document
1.1 Introduction
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed Dr Medha Kolhatkar
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER I PRINCIPLES OF LEGAL DRAFTING
CHAPTER I PRINCIPLES OF LEGAL DRAFTING
1.1 Introduction
Legal drafting is an essential requirement of the legal profession. Drafting is an art and a skill which a legal practitioner must possess. Every lawyer, therefore, should acquire and practice the skills of good drafting. Mastering of legal writing skills takes time and requires practice and experience. The success of a case largely depends on the drafting skills of a lawyer. Therefore, the significance of good drafting cannot be over emphasised.
The expression, “Draft” means a rough sketch of a writing or document, from which the final or fair copy is made. Thus, “Drafting” is the primary stage of writing. One who drafts or frames a deed or document, such as a lease deed, mortgage deed, etc. is called a draftsman.
End of Document
1.3 Principles of Legal Drafting
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed Dr Medha Kolhatkar
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER I PRINCIPLES OF LEGAL DRAFTING
CHAPTER I PRINCIPLES OF LEGAL DRAFTING
1.3 Principles of Legal Drafting
Stated below are the principles of legal drafting:
(i) To generate a good draft, the writing should be concise, clear, convincing, complete and coherent. (ii) Fowler has stated the following five rules of drafting:—“Anyone who wishes to become a good writer should endeavour, before he allows himself to be tempted by more showy qualities to be direct, simple, brief, vigorous and lucid.”
This general principle may be translated into general rules in the domain of vocabulary as follows:— (a) Prefer the familiar word to the far fetched (b) Prefer the concrete word to the abstract (c) Prefer the single word to the circumlocution (d) Prefer the short word to the long (e) Prefer the Saxon word to the Romans (iii) The draftsman must conceive the whole design of the document first and then begin with the process of drafting. (iv) The object and function of the document which is to be drafted should be understood and analysed by the draftsman. So also one should prepare a rough skeleton as to the contents of the document proposed to be drafted. (v) The draftsman should follow the well established rules and practices of drafting. (vi) The draftsman should always keep his audience in mind when crafting any piece of writing. (vii) The choice of words plays an important role in good drafting. Choose the right words to convey the meaning to the reader. If the words and phrases can have two or more possible meanings, make sure that the one you want to convey is clear to the reader. This will make the draft readily intelligible to everyone. (viii) The draftsman should have a good command over the language in which the document is drafted. Sentences should be simple, brief and grammatically correct. Proper punctuation should be used wherever necessary. (ix) The use of superfluous adjectives should be avoided. Active voice should be used instead of passive voice. (x) The draft should be logically arranged and well organised. This is possible only when the draftsman has complete clarity about the subject matter he is to write.
Charles Davidson has culled out some rules of drafting as follows:— (a) Before a draft is begun the whole design should be conceived. (b) Nothing should be omitted or admitted at random.
Page 2 of 2 1.3 Principles of Legal Drafting
(c) A necessary result should never be stated. For example, if it is said that ‘A’ died leaving ‘B’ as his heir at law, it is absurd to add “him surviving” because unless ‘B’ survived ‘A’, ‘B’ would not be heir at law. (d) Statements of negation should be avoided. For example, when the expression “tenants-in-common” is used it need not be coupled with the expression “and not as joint tenants”. (e) The order of the draft should be logical. (f) The ordinary and accustomed forms of instruments and technical language should be employed. (g) Language should be, to the utmost possible extent, precise and accurate, that is, every phrase should have a clear meaning and all the phrases should be so connected together as to give rise to no ambiguity. (h) While the precedent should not be followed mechanically, at the same time, so long as the precedent is not contrary to or inconsistent with the object to be achieved, it should be followed verbatim. (xi) Arrange the drafts in various paragraphs and use devices such as sub-headings, titling, etc. to make the content easy to understand. (xii) Once the draft is ready the draftsman should carefully reconsider it in order to ensure that there are no errors or lacunae in the draft. (xiii) A draft should be prepared as soon as the necessary information and instructions are sought from the client. Delay in drafting may result in omitting some vital details/information in the draft. Therefore, it is in the interest of both, the client as well as the lawyer, that the document should be drafted at the earliest.
End of Document
2.1 Introduction
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed Dr Medha Kolhatkar
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER II NOTICES
CHAPTER II NOTICES
2.1 Introduction
The word “notice” denotes merely an intimation to the party concerned of a particular fact. It cannot be limited to a letter. Notice may take several forms. As per Black’s Law Dictionary, “When a person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it” it is termed as giving notice. According to Chamber’s 20th century Dictionary 1961 (p 731) the word “notice” stands for intimation, announcement, information, warning, a writing etc. Notice is a direct and definite statement of a thing, as distinguished from supplying materials from which the existence of such thing may be inferred. ( The Judicial Dictionary, Words & Phrases Judicially Interpreted , 2nd ed. By F. Stroud, p 1289)
“Notice” means making something known to a person of which he was or might be ignorant. A notice can be given either orally or in writing. However, a notice should preferably be in writing because a written notice is easy to prove and its contents are certain. A party sends a legal notice to communicate his grievances and to seek appropriate remedy from the receiver of the notice. It gives an opportunity to the receiver to take appropriate action to address the grievances set out in the notice, to resolve the issue cordially and thus can avoid litigation.
End of Document
2.2 Forms of Notice
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed Dr Medha Kolhatkar
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER II NOTICES
CHAPTER II NOTICES
2.2 Forms of Notice
There are various forms of a Notice, which are discussed in detail below. 2.2.1 Statutory Notice
When a statute/enactment requires sending of a notice as a condition precedent to institute the legal proceedings, such notice is called statutory notice. A statutory notice can be further classified into mandatory (or obligatory) notice and directory (or recommendatory) notice. 2.2.2 Mandatory Notice
All mandatory notices are statutory. However, all statutory notices are not mandatory. Examples of statutory (mandatory) notices are—notice under section 80 of Civil Procedure Code , notice under section 138 of Negotiable Instruments Act , a notice under section 106 of the Indian Railways Act , a notice under section 10 of the Indian Carriers Act , etc.
Where a party, who is under an obligation to comply with the provisions regarding mandatory notices, fails to comply, then the legal action initiated by such party also fails. 2.2.3 Directory Notice
As the term indicates such a notice is directory in nature. If the party under obligation fails to comply with the same then the consequences of such non-compliance are detrimental to the interests of such party. Directory notice is not a condition precedent for the taking of a legal action by the party.
Following are the illustrations of Directory Notices:
- A notice of revocation or renunciation of agency is defined under section 206 of the Indian Contract Act. As per section 206, a “Reasonable notice must be given of such revocation or renunciation”. However, this does not mean that the agency cannot be revoked or renounced unless a prior notice was given. Absence of notice would merely penalise the defaulting party in the shape of damages to the other.^1
- Notice under section 131 of Transfer of Property Act, 1882. As per section 131 of Transfer of Property Act —
Every notice of transfer of an actionable claim shall be in writing, signed by the transferor or his agent duly authorised in this behalf, or, in case the transferor refuses to sign, by the Transferee or his agent, and shall state the name and address of the transferee.
2.2.4 Public Notice
All the notices which are issued regarding the matters in which the members of the general public are likely to be or expected to be affected are “Public Notices”. Black’s Law Dictionary defines the term “public notice” as:
Notice given to the public generally, or to the entire community, or to all whom it may concern. Such notice must commonly be published in a newspaper of general circulation.
Page 3 of 3 2.2 Forms of Notice
1 SRST Narayana Chettiar v The Kaleeswarar Mills Ltd, AIR 1952 Mad 515 : 1951 21 CompCas 351 Mad : (1952) IMLJ
End of Document
2.3 Modes of Service of a Notice
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed Dr Medha Kolhatkar
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER II NOTICES
CHAPTER II NOTICES
2.3 Modes of Service of a Notice
The following are the modes of service of notice
- Personal service
- Service through Post
- Statutory / prescribed mode of service
- Service by implication
- Special mode of service
In personal service the notice is served to the addressee personally. Service of notice by Registered Post Acknowledgment Due (RPAD) is one of the convenient and safer modes of service, as one can prove the fact of service of notice. So also law will presume that a notice which was sent by registered post was in reality duly served.^2
Where a statute prescribes a particular mode or manner of service of notice then the prescribed mode of service has to be followed, for example, a notice under section 80 of Civil Procedure Code , directing the notice to be delivered to or left at the office of the secretary to the Union/ Provincial Government.
In contractual mode of service, the mode which is agreed to by the concerned parties must be followed (e.g., in arbitration, partnership, contracts), i.e., the notice should be served confirming to such mode. The indirect mode or service by implication arises when the notice giver sends the notice through a bearer or special messenger or through post but the addressee refuses to accept it. When the addressee refuses to accept the notice, the notice is presumed to have been served by implication.
Leaving of a notice to any conspicuous part of the premises of the addressee is an illustration of special mode of service.
2 Section 114 of the Evidence Act and section 27 of the General Clauses Act.
End of Document
2.5 Notice Reply
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed Dr Medha Kolhatkar
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER II NOTICES
CHAPTER II NOTICES
2.5 Notice Reply
Every notice received should be replied to, as promptly as possible.
The averments in the notice which are incorrect or fabricated should be generally and specifically denied, and then the facts and objections on behalf of the addressee or receiver should be stated.
In notice reply, while making denials, reference should be made to relevant documents, correspondence, etc., based on which the denials are made.
Notice reply is the basis of written statement/reply to the complaint or proceedings; therefore, it is required to be drafted carefully.
Finally Notice Reply like Notice should be sent by such mode of service which can be easily proved, and therefore, preferably by RPAD or by Courier.
End of Document
2.6 Specimens
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed Dr Medha Kolhatkar
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER II NOTICES
CHAPTER II NOTICES
2.6 Specimens
Specimen No. 1
(Breach of Leave and Licence Agreement)
NOTICE
(By R.P.A.D.)
From: __________
Date: __________
To,
ABC Co. Pvt. Ltd.
Address:
Kind Attn:—Mr._______________
Sir,
Under the instructions of my client (give the name and address of client) __________ and on being authorised by him in this behalf I have to address you as under the contents whereof you may please note;
(1) That my client is the owner of the premises situated at ___________. (2) That by an agreement dated ______ my client has given the said premises to you on leave and license basis for 11 months. (3) That my client states that as per the said leave and license agreement you were to use the said premises for office purposes only. (4) That my client states that on ________ date when my client inspected the premises he noticed that you are using the said premises for manufacturing and packaging of ________. (5) That my client states that the said act on your part of using the premises for manufacturing and packaging of ________ is in total violation of the agreed terms of the Leave and Licence Agreement dated ________. (6) That one Mr. _________ and Mr. __________ of your organisation promised my client that within 24 hours they will stop the said manufacturing activity and use the premises only for office purposes as per the agreed terms. They further requested my client, not to terminate the Leave & Licence Agreement dated ____________.
Page 3 of 32 2.6 Specimens
(6) My client states that she was never given the respect and status of a wife by you. The constant taunts and quarrels caused great mental stress to my client. You along with your parents made demands for gifts from client’s parents. My client states that 90% of her salary was given to you every month to meet the household and other expenses. But you continued to demand more and more money from my client. My client states that she was extremely disappointed by your behaviour and attitude. (7) My client states that you have raised doubts about my client’s character and have alleged that my client is having illicit relations with her co-workers at her office. All this has made the married life of my client absolutely intolerable. My client states that by doubting the character of my client you have committed a grave matrimonial offence. (8) My client states that, on _______ date it was your mother’s birthday. My client had already informed you that she would get late in the evening from her office as year-end workload was there in the bank. However, when my client returned home at around 8 O’clock in the evening from the office after long hours of work as usual you and your sister started abusing, insulting and taunting my client in the presence of family friends and relatives, and when my client said that she should not be insulted, and should be treated with respect, you asked my client to leave the matrimonial home immediately. Therefore, my client left the matrimonial home on ____ date. (9) My client states that she was thus forced to leave the matrimonial home on ____date against her will and wish. My client states that since then my client is staying with her parents. (10) My client states that, on ____ date you and your father came to meet my client and her parents and again demanded money and when my client refused, you and your father abused my client and her parents. (11) My client states that you have committed mental cruelty on my client on several occasions and my client reserves the right to enumerate the said instances if required before the appropriate forum. (12) Thus, my client states that, because of the mental cruelty committed by you and your family members, my client wishes to seek divorce from you. (13) My client states that in spite of all this, my client still wishes to dissolve the marital tie by filing mutual consent petition rather than contending and contesting a divorce petition against you. (14) My client states that if you fail to consent to divorce by mutual consent, my client will be constrained to initiate legal proceedings against you entirely at your risk as to the cost and consequences of any such legal action including the charges of this notice Rs. ____ which you may please note.
Yours sincerely,
Sd. Advocate
(Encl-Draft of petition for divorce by Mutual Consent)
Specimen No. 3
(Notice to Terminate Contract)
NOTICE
(By R.P.A.D.)
From: ________
Date:_________
To,
Sir,
Page 4 of 32 2.6 Specimens
Under the instructions of my client M/s ABC Company Pvt Ltd, a company registered under the Indian Companies Act, 1956, having its registered office at ______, through its director Mr. __________ and on being authorised in this behalf, I address you as under; the contents whereof you may please note—
(1) My client states that my client had entered into a contract with you on ________ date ____ for the sale and supply of ________ (give the description of goods) goods. (2) My client states that my client has paid Rs _______ as advance (i.e., 50% of the total value of goods) vide cheque no. _______ drawn on ________ bank dated _________. My client states that there was a delay of almost 3 months in supplying the aforementioned goods. Moreover, you have supplied only 1/3rd of the agreed quantity of the goods. (3) My client states that the goods supplied by you are sub-standard and are not as per the specifications agreed upon mutually vide contract dated _________ (describe in details as to how the goods are not as per the specifications). (4) My client states that till date you have not supplied the remaining quantity of goods as per the contract despite several reminders from my client. (5) My client states that my client has suffered huge losses because of breach of contract committed by you. (6) Under these circumstances, my client has no alternative, but to terminate the contract with you dated
(7) Therefore, through this notice, the contract between you and my client hereby stands terminated and you are hereby called upon to return the amount of Rs _______/- received as an advance payment from my client and Rs. ______ as damages for breach of contract dated ______ within 8 days from the date of receipt of this notice, failing which my client will be constrained to initiate legal proceedings against you entirely at your risk as to the cost and consequences of any such legal action including the charges of this notice of Rs. ___________/-.
Yours sincerely,
Sd. Advocate
Specimen No. 4
(Notice for compensation for permanent disablement and business loss)
NOTICE
(By R.P.A.D.)
From: _______
Date: _______
To,
Sir,
Under the instructions of my client (state the name and address of client) and on being authorised by him in this behalf, I address you as under, the contents whereof you may please note:—
(1) My client states that my client has taken on rent shop no. ______ situated on the 2nd floor of the ______ commercial complex. My client is running the business of ______ at the aforementioned shop.
