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Prof. V.E.Shinde
Class - B A.LL.B V
Subject-Drafting Pleading and Conveyancing
DRAFTING RULES & SKILLS
Drafting in its general connotation means, putting one‟s own ideas in writing. Drafting of any matter is an art. Drafting of legal matters requires greater skills and efficiencies. It requiresthorough knowledge of law, procedure, settled judicial principles, besides proficiency inEnglish Language. A perfect drafting of matters in relation to Suits, Applications,Complaints, Writ petition, Appeals, Revision, Reviews and other such matters connectedtherewith shall obviously leads to good result in terms of money, time, energies andexpectation of not only the learned members of the Bench, but also the Bar as well as theparties to the litigation. It creates a congenial atmosphere where the glory of the judiciary andthe Law grows to sky-heights. So in the case with regard to the drafting of Deed ofConveyancing.“Drafting, Pleadings and Conveyancing” (DPC) is made as a compulsory practical subjectstudy forming part of the curriculum of the Law Course in India. It envisages, inter alia,drafting of Civil Pleadings; Criminal complaints and other proceeding; Writ Petition, AppealCivil, Criminal and Writ; Revisions-Civil and Criminal, Reviews, Writ Appeals-Civil andCriminal, and also Special Leave Petition; Contempt Petition, Interlocutory Applications, etc.A student who acquires the requisite knowledge, perfection and proficiency in draftingofthese matters, shall undoubtedly become a perfect legal professional. He will be an asset inthe legal world.
History of Pleadings
The method of arriving at an issue by alternate allegations has been practised in the civilizedcountries from earliest times. The art of pleadings apparently is as ancient as
any portion ofour procedural law. In ancient India it certainly existed but not in the present form. The art ofpleading is also traceable in substantially the same in form in England in the days of Henry II.The “issue” is found in the year, i.e., in the first year of the reign of Edward II. It shows thatthe art of arriving at an issue was not only practised during the reign of Edward II but hadbeen practised even before “for an issue had not been only the constant effect, but theprofessed aim and the object of pleading”. At first the pleading were oral. The partiesactually appeared in person in open Court and oral altercation took place in the presence ofthe judges. These oral pleading were conducted either by the party himself or by a person whowas an eloquent orator and well versed in Dharma Sastras and Koran whom peoplegenerally called Pandit and Maulvi in ancient and medieval India respectively. In Englishcountries such person was called narrator and advocates before the adoption of this presentlawyers‟ institution. The Pandits, Maulvis and narrators helped Kings and Judges in the administration of justice in those days.The duty of the King and the judge was to superindent of „moderate‟ the oral contentions conducted before him. His aim was to arrive at some specific point or matter affirmed on the one side, and denied on the other, which they both agreed was the question requiring decision; on resulting this the parties were said to be „at issue‟ andthe pleading were over. The parties,then, were ready to go before a jury if it were an issue of England. In those days the judges were very strict and they never allowed more than one issue in respect of each cause of action. When a defendant more than one defense to the plaintiff‟s claim he had to elect one out of thedefences. Since the reign of Queen Victoria the parties were allowed to raise more than a single issue, either of law or fact.During Viva voce altercation an officer of the court was busy writing on aparchment roll anofficial report of the allegation of the parties along with the act of Court which together wascalled record. As the suit proceeded similar entries were made from time to time and on the completion of the proceedings, the roll was preserved as perpetual judicial record. When eachpleader in turn started borrowing parchment roll
pleading that may be filed, may be classedunder two heads: (i) subsequent pleadings, and (ii) additional pleadings.
(i)Subsequent Pleadings: The only subsequent pleading which is filed as a matter of
right, without the leave of the court, is a written statement of a plaintiff by way of
defence to a plea set-off set up by a defendant in the written statement of his defences. No other pleading subsequent to the written statement of a defendant other than that by way of defence to a plea of set off can be presented except with the leave of the court and upon such terms as the court may think proper. But the Court may at any time require a written statement or an additional written statement from any of the parties and fix a time for presenting the same (O.8, r.9). Any ground of defence which has arisen after the institution of the suit or the presentation of the written statement, may be, raised by the plaintiff or the defendant as the case may be, in his written statement (O.8, r.9). This is also a subsequent pleading. The subsequent pleading, i.e., this written statement in some states is also termed as “replication”. This term was formerly used in England where plaintiff‟s written statement is now called “reply”.
(ii)Additional Pleading: Although no pleading subsequent to the written statement of
a defendant other than by way of defence to a plea of set-off can be presented without
the leave of the court, yet the court may at any time require a written statement or
additional written statement from any of the parties, i.e., plaintiff or defendant or both
(O.8, r.8). The additional pleadings are not subsequent pleadings in the true sense of
the term. They are pleading by way of further and better statement of the nature of the
claim or defence or further and better particular of any matter or state in the
pleadings. These pleading may be ordered under order 6, rule 5 of the Code of Civil
Procedure. Under the English Law, pleading has been defined as follows: “pleading
includes any petition or summons and also include the statement in writing of the claim or demand of any plaintiff and of the defence of any defendant thereto and of reply of the plaintiff to nay counter-claim of a defendant.”
Function and Object of Pleadings
The object of pleadings is to assist the Court and the parties to the dispute in its adjudication.
Its function is of multi-dimension, and is in various ways. Stable j., Pinston v. Loyds Bank Ltd., (1941) 2 K.B. 72, has expressed the function of pleading in the following words: “The function of a pleading is not simply for the benefit of the parties but also and perhaps primarily for the assistance of a Court by defining with precision the area
beyond which without the leave of the court, and consequential amendment of
pleading, conflict must not be allow to extend”. “The while object of pleading is to give a fair notice to each party of what the opponent‟s case is to; ascertain with precision, the points on which the parties agree and those on which the they differ and thus to bring the parties to is also a definite issue. The purpose of pleading is also eradicate irrelevancy. The parties, thus themselves know what are the matters left in dispute and what facts whey have to prove at the trial. They are saved from the expense and trouble of calling evidence which may prove unnecessary in view of the admission of the opposite party. And further, by knowing before hand, what point the opposite party raise at the trial they are prepared to meet them and are not taken by surprise as they would have been, had three been no rules pleadings to compel the parties to lay bare their cases before the opposite party prior to the commencement of the actual trial”.
Truly speaking the object of the pleading is to narrow down the controversy of the parties to definite issue. The sole object of pleadings is that each side may be fully active to the question that are about to be argued in order that they may have an
often willing to accept an apology and costs, and so put an end to the action.
(ii)It is also a boon to the parties to know precisely what facts they must prove at the
trial; otherwise, they may go to great trouble and expense in procuring evidence of
facts which their opponent does not dispute. On the other hand, if they assume that
their opponent will not raise such and such a point, they may be taken suddenly by
surprise at the trial.
(iii)Moreover, it is necessary to ascertain the nature of the controversy in order to
determine the most appropriate mode of trial. It may turn out to be a pure point of
law, which should be decided by judge.
(iv)It is desirable to place on record the precise question raised in the action so that
the parties or their successor may not fight the same battle over and again.
Fundamental Rules of Pleadings
The English law of pleading has got four fundamental rules of pleading upon which Order 6
of the Code of Civil Procedure is based which are set out as under:
1.Every pleading must state facts and not law.
2.It must state all material facts and material facts only.
3.It must state only the facts on which the party‟s pleading relies and not the evidence
by which they are to be proved; and
4.It must state such facts concisely, but with precision and certainty.
(1) Facts, not law
The first fundamental rule pleading is that neither provisions of law nor conclusion of mixed law and facts, should be alleged in a pleading. The pleading should be confined to facts only and it is for the judge to draw such interference from those facts as are permissible under the law of which he is bound to take judicial notice.
Illustration
It will not be sufficient to state that „Abu Mohammad made a gift of his property‟ to the
plaintiff. The plaintiff should allege here the gift was made, how it was accepted and how possession was delivered; because these are the facts which constitute a valid gift under Muhammedan Law. To allege that „Abu Mohammad made a gift‟ will be a conclusion of law from the facts which are not to be state directly in the pleading. Secondly, in a suit for damages for negligence, it is not enough for the plaintiff to state that the defendant has been guilty of negligence‟ without showing how and in what respect he was negligence and how he became bound to use due care to prevent an injury to other. Thirdly, when then defendant has to reply to the claim of the plaintiff in a money suit, it is not sufficient for him to state that „the defendant does not owe to the plaintiff‟. But he must allege such factwhich go to prove that in the circumstances the defendant does not owe to the plaintiff. The defendant should state that he never borrowed from the plaintiff, or good were never ordered, or were never delivered, or that they were not equal to the sample. It is not sufficient in a suit upon a contract for the defendant to, merely, plead the „the contract is rescinded‟, The defendant must plead in what manner and by what means he contends that is was rescinded.
The fundamental rule of pleading is that a pleading shall affirmatively contain only a material fact on which the party relies and it shall not contain facts which are only evidence by which such material facts are to be proved. The reason for not mentioning the law in the pleading is that it is the duty of the court to find out and examine all plea of Law that may be applicable to the facts of the case. However, the parties can make
right to cut the trees. Similarly, a party who wishes to rely on the usage of a particular
trade and business and if it is at variance with any provision of the Contract Act, he
must not plead the usage of such trade and business with its detailed incident. If it is
not pleaded, no evidence to prove it shall be admitted.
(e)The facts of negligence, right or liability, unlawful or wrongful act should be
specifically pleaded. Every plea of fact should be specifically raised and proved.
(2) Material facts
The second fundamental rule of pleading is that every pleading shall contain only a statement of material facts ion which the party pleading relies for his claim or defence. This rule has been enunciated in Order 6, ruke2 of the Code of Civil Procedure. The rule that the material facts should be not a technically and that an omission to observe it may increase the difficulty in the Court‟s task of ascertaining the rights of the parties. Further, every pleading must state facts which are material at the present stage of the suit. Now, the question arises what is material fact? The fact which is essential to the Plaintiff‟s cause of action or to the defendant‟s defence which each prove or fail is material fact. Now, the question that what facts are material, is not very easy to answer. However, it can be said that fact is material for the pleading of a party which he is bound to prove at the trial unless admitted by the other party before he can succeed in his claim or defence. If one is in reasonable doubt about a particular fact as a material fact it is better for him to plead that fact rather than omit it because unless a fact is pleaded he shall not be allowed to prove it at the hearing of the suit. A plea of fraud and misrepresentation in a suit must set forth full particulars of fraud and misrepresentation, because these particulars constitute material facts unless raised by the plaintiff or the defendant in his pleading, he will not be allowed to proveat the trial. Of course, a material fact can be inserted in the pleading by amendment which is the right of the
plaintiff and defendant; but when a pleading is amended one is likely to be saddled with
the cost of other side. When suit is brought under a particular statute, all facts which are
necessary to bring the suit under the statue must be alleged. When a rule of law applicable to a case has an exception to a case has an exception to it, all facts are material which tend to take the case out of the rule or out of exception. For instance:
(1)If a childless Mohammedan widow claims one-fourth share in the property of her
husband as allowed by Shia law, she must allege that her husband was a Shia.
(2)Where Plaintiff claims right of pre-emption u/s 15(2)(b) of Punjab pre-emption
Act, he must plead the necessary facts in respect of his claim.
(3)Where a plaintiff claims an alternative relief, he must plead facts entitling him, for
such relief.
(4)Where the question of age or time affects the right of the parties, the facts should
be specifically pleaded.
(5)Every plea of facts must be specifically pleaded, and proved. Court cannot allow
party to the suit to lead evidence inconsistent whit his plea inspite of object of
objection by the other party is allowed to lead evidence in rebuttal does not cure the
legal defect.
(6)Where a plaintiff sues on the basis of a title he must state the nature of the deed
from which he has derived title.
(7)The plea that a woman claiming maintenance has lost her right due to continuous
desertion or living in adultery should be specifically raised.
(8)Where the plea is based on custom, it must be stated in the precise form what the
be proved are called Facts Probantia, and they are not to be stated in the pleadings. Facta Probantia are not the facts in issue but only relevant facts which will be proved at the trial in order to established facts in issue. For instance, in a suit of damages for malicious prosecution the plaintiff should only allege in the plaint that the defendant was actuated by malice in prosecuting him. He must not allege that he had previously given evidence against the defendant and the defendant had vowed to take revenge. The plaintiff is by all means entitled to tender evidence to prove this fact. Secondly, in a policy of life insurance, the condition that the policy shall be void, if the holder dies of
his own hand, in the defence it is not necessary to state that the assured brought the pistol a few days before his death and made all preparation to kill himself. It is sufficient to state in defence that the assured died of his own hand. In some cases where the facts in issue and relevant facts are so mixed up that it is very difficult to separate them and if it is so the relevant facts may be stated. For example, where custom is based on village administration paper, which is the basis of claim and its sole proof. In such cases the record has to be pleaded. In the Punjab Rewaje Aam (customs)are contained by the Manual of Customary Law which records customs, are only evidence and it is nor necessary to refer to them in plaints.
(4) Concise Form with Precision and Certainty
The material facts must be stated in a summary form, succinctly and in a strict chronological order. All unnecessary allegations and their details should be omitted in order to attain brevity in pleadings. Pleading is not a place for fine writing but only assertion of hard facts. It is desirable to go straight to the point and state fact, boldly, clearly and concisely and to avoid all paraphrasing and all circumlocutions. As far as possible an active voice should be preferred to passive in pleading. The same person or thing should be called by the same name throughout the pleading. The pleading shall be divided into paragraph numbered consecutively. Dates sums and numbers shall be
expressed in figures, even though the pleading should be concise, it should never be obscure. It should be both concise , as well as precise. The parties cannot change the case and get the relief. As already discussed the unnecessary facts should be omitted from the pleadings. Let us summarise them.
(1)Matters of law, (2)Matters of evidence, (3)Matters not alleged in the opponent‟s pleading, (4)Matters presumed by law, (5)The performance of condition precedent, (6)The words of documents, (7)Matters affecting cost only, (8)Matters not material to the case, (9)The defendant need not plead to the prayer of the plaintiff, (10)The defendant need not plead to the damages claimed or their amount. The above details should not be pleaded in a pleading.
A good pleader should bear in mind the following points in relation to a pleading:
(1) Describe the names and places accurately and spell them correctly and adopt the same spelling throughout.
(2) One should always avoid the use of pronoun as „He‟, „She‟, „This‟, or „That‟. the plaintiff or the defendant should not be addressed by their names at some place and at some place by the word „Plaintiff‟ and „ defendant‟, call them throughout your pleading by the expression „the plaintiff‟ and „the defendant‟ as the case may be. Where one has to distinguish between two or more plaintiff or defendant, call in your pleading, „the plaintiff Ramashankar‟ or „the defendant-Hariharan‟ as the case may be.
(3) A lawyers should allege all facts boldly and plainly. he should use the language of the document or the act itself; and he should not invent his own language however correct it may be, e.g. of a policy becomes void in case, “the assured shall die of his own hand.” Now, in this case while drafting the pleading instead “ the assured killed himself” or he committed suicide,” plead that “the assured died of his own hand.”
(4) A lawyer should allege all facts boldly and plainly. He should avoid ifs and buts. As
widow was in possession for ever 12 years and thus became owner by adverse possession.
A defendant in money suit due on promissory note against him may plead that he did not execute the promissory note, and in the alternative the plaintiff claim is barred by the law of limitation. But it must be carefully borne in mind by the draftsman and separately be stated in the pleading. The Court will not allow any such pleas on the ground covered by implication unless specifically set out. Thus, in a suit by a son to set aside certain transfers made by his mother on the ground of unsoundness of mind of his mother at the time or the transfer and further averred that the donee was residing with his mother and was completely under his
IN THE COURT OF SENIOR CIVIL JUDGE (DISTRICT ___________), DELHI
SUIT NO. ____________ OF 20IN THE MATTER OF: Sh. Om Veer Singh S/o. ___________-, R/o. Sainik Nagar, New Delhi PLAINTIFF VERSUS
- Dr. U. Basu S/o________,R/o Pragati Vihar Society, Delhi - 92
- Tapan Kumar, S/o ______R/o Pragati Vihar Society, Delhi – 92 ….. DEFENDANTS
SUIT FOR PERMANENT INJUNCTION
MOST RESPECTFULLY SHOWETH:
- That the plaintiff is the permanent resident of the above mentioned address in property bearing no. ________ Uttam Nagar, New Delhi for the last many year and is livingwith wife and minor children, as a tenant.
- That the plaintiff is a tenant in respect of the above said property bearing no_____________Uttam Nagar, New Delhi consisting two rooms, latrine and kitchen in the above said premises of Rent Rs. 150/- (Rs. 150/-) p.m. excluding electricity and water
charges under the tenancy of late Sh_________ who died on 17.10.2013 and late Sh. _____ used to collect the rent from the plaintiff but late Sh. _____did not issued any rent receipt to the plaintiff even after several demands made by the plaintiff but he always used to postpone the issue of rent receipt.
- That the plaintiff spent a huge amount on the construction of these two rooms in the
above said premises at the request of Late Sh. _____and Sh. _____assured the plaintiff toadjust the said rent (the plaintiff is having the necessary documents/proofs of material forconstruction of rooms in the above said property). It is also pertinent to mention here that the plaintiff looked after late Sh. ______ many a times, whenever he fell ill.
- That at present the plaintiff is having the peaceful possassion of premises no. ____________Uttam Nagar, New Delhi and is having the whole necessary documents/record regarding possession (photocopy of Ration Card, School Card is enclosed herewith) but the above said defendants are internded to disturbe the peaceful physical possession of the plaintiff of the above said premises.
- That the plaintiff is having the whole necessary household goods which are
lying/kept in the above said premises and is living peacefully.
- That the plaintiff has paid the agreed rent @ Rs. 150/- p.m. to late Sh. ______upto
Oct. 2013. It is also pertinent to mention hare that the legal hairs of late Sh. ______are not in the knowledge of the plaintiff and at present also the plaintiff is ready to tender the rent before the legal heirs of late Sh. _________.
- That on dt. 30.1.2015 the above said defendant came to the above said premises of
the plaintiff and threatened the plaintiff to vacate the tenanted premises immediately
otherwise the plaintiff would have to face dire consequences, when the plaintiff asked about their identity then they did not disclosethe same, instead started throwing
illegally.
- That on de. 12.2.2015, the plaintiff again went to the police post Matiala to lodge the report against the defendants but no Police Officer of P. Post Matiala is ready to listen against the defendants and they advised the plaintiff to approach to the competent court of law to seek his remedy and to get injunction order against the defendants and the P.S. Matiala.
- That the plaintiff has no other efficatious remedy except to approach to this Hon'ble
court for seeking relief of injunction against the defendants from interfering in the peacefulpossession of the premises no. __________Uttam Nagar, New Delhi.
- That the cause of action arose on different date when the defendants threatened the
plaintiff to vacate the premises no. __________Uttam Nagar, New Delhi and threatened the plaintiff of dire consequences and further to dispossess him from the above premises bearing no.__________Uttam Nagar, New Delhi forcibly and illegally. The cause of action lastly arose on dt. 11.2.2015 when the defendants again threatened and tried to dispossess the plaintiff from the premises no. ______ Uttam Nagar, New Delhi forcibly and illegally with the connivance of the Local Police. The cause of action still subsists as the threat of the defendants to dispossess the plaintiff and to create disturbance in the peaceful possession of the premises no._______ Uttam Nagar, New Delhi continues.
- That the parties to the suit for the purpose (s) of court fee and jurisdiction is Rs. 130/- on which the requisite court fee has affixed.
- This Hon‟ble Court has jurisdiction to entertain this suit because the part of the cause of action arose at Delhi and the suit property is situated within the territorial jurisdiction of this Hon‟ble Court.
PRAYER:
It is, therefore most respectfully prayed that this Hon‟ble Court may be pleased to :-
(a) pass the decree for Permanent Injunctin in favor of the plaintiff and against the defendants thereby restraining the defendants, their representatives, employees, agents etc. from dispossessing the plaintiff forcibly and illegally from the tenanted premises bearing no. _______ Uttam Nagar, New Delhi and also from interfering in the peaceful possession of the above said premises.
(b) award cost of the suit in favour of the Plaintiff and against the Defendants;
(c) pass such other and further order(s) as may be deemed fit and proper on the
facts and in the circumstances of this case.
Plaintiff
Place: Through
Date: Advocate
VERIFICATION:
Verified at Delhi on this 1st day of January 20… that the contents of paras 1 to .. of the
plaint are true to my knowledge derived from the records of the Plaintiff maintained in the ordinary course of its business, those of paras .. to … are true on information received and believed to be true and last para is the humble prayer to this Hon‟ble Court.
Plaintiff
[NOTE : This plaint has to be supported by an affidavit]
