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CONTENTS
DRAFTING OF PLEADING AND CONVEYANCING
- General Principles of Drafting and Relevant Rules
CIVIL
- Plaint
- Written Statements
- Interlocutory Applications
- Original Petition
- Affidavit
- Execution Petition
- Memorandum of Appeal and Revision
- Petition under Art. 226 and Art. 32 of the Constitution of India
CRIMINAL
- Complaint
- Criminal Miscellaneous Petition
- Bail Application
- Memorandum of Appeal and Revision
CONVEYANCING
- Essentials of a Deed
- Sale Deed
- Mortgage Deed
- Lease Deed
- Gift Deed
- Promissory Note
- Power of Attorney
- Will
- Agreements
Important Questions
Suggested Reading
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DRAFTING OF PLEADINGS AND CONVINCING
GENERAL PRINCIPLES OF DRAFTING AND RELEVANT RULES
The art of drafting the pleadings has not yet fully developed in spite of the increase in the civil litigation. As a matter of fact, the art of pleading should be the foundation course and great emphasis should be laid on this paper. Because of this absence of rigorous training, the young lawyers often indulge in prolixity rather than clarity and conciseness. Many dead-sure-win cases drag on for years in the courts only because of faulty drafting. Irrelevant matters, unnecessary details are often included and the facts placed before the lawyer by his client are not marshaled. The result is that the martial facts are often mixed up with inessential matter.
According to Lord Halsbury - "Where system of pleading may exist, the sole object of it is that each side may be fully alive to the questions that are about to be argued in order that they have an opportunity of bringing forward such evidence as may be appropriate to the issue"
Pleading is an art, of course, and art which requires not only technical and linguistic skill but also an expert knowledge of the law on the given point brought before a lawyer. Even experienced lawyers and attorneys are not infallible and sometimes they also make mistakes. However, in the matter of pleadings longer experience and a great linguistic acumen are both essential ingredients. What ultimately matters is how clearly and systematically have the facts been presented before the court of law.
It is a matter of common knowledge that when a person comes to seek the assistance of the court of law in any matter, he has to prepare a statement of his claims, and the facts on which such claims are founded. Such statements fully drawn up, setting out all contentions, are called "pleadings". Thus pleadings are the foundation of all sorts of litigation; no judicial system in the world can do justice in any matter unless and until the court of justice is fully aware as to the claims and contentions of the plaintiff and of the counter claims and defences of the defendant.
In the ancient times when the king was the fountainhead of all justice, a petitioner used to appear before the king in person and place all facts pertaining to his case before his majesty. After such oral hearing, the king used to summon the other party and thereafter listen to the defence statements put forward by the person so summoned. There used to be same sort of cross examination or cross questioning of the parties by the king himself. Thereafter, the decision was announced. There was hardly any system of written statements; all the same "pleadings" did exist, although they were oral. The king and his courtiers kept on what may be called a mental record of the proceedings. Perhaps only r. few serious and otherwise significant cases, the decisions were recorded.
With the passage of time, judicial system underwent a change. The administration at justice was separated from the executive and assigned to the court of law. Complexity of resulted in enormous litigation, and oral hearing of the ancient times became almost impossible. Scribes used to keep records of all the proceedings Gradually this procedure was also abandoned and the litigants were allowed to bring their claims and contetions duly drawn up to fie them before the Honb6e courts. When this change exactly happened, it is difficult to say. Experience was a better teacher; and the changes in court procedure took place not only in the light of the past experience but also in the face of expediency. Written proceedings
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Fundamental Rules of Pleadings
- That a pleading shall contain, only a statement of facts, and not Law;
- That a pleading shall contain all material facts and material facts only.
- That a pleading shall state only the facts on which the party pleading relies and not the evidence by which they are to be proved,
- That a pleading shall state such material facts concisely, but with precision and certainty.
1. Facts and Not Law: One of the fundamental rules of pleadings embodied in order VI rule 2 is that a pleading shall contain and contain only a statement of facts and not law. And it is for the judge to draw such inferences from those facts as are permissible under the law of which he is bound to take judicial notice. A judge is bound to apply the correct law and draw correct legal inferences and facts, even if the party has been foolish to make a written statement about the law applicable of those facts. If a plaintiff asserts a right in himself without showing on what facts his claim of right is funded or asserts that defendant is indebted to him or owes him a duty without alleging the facts out of which indebtedness or duty arises, his pleading is bad.
The parties should not take legal pleas but state the facts on the basis of which such legal conclusions may logically follow and which the court would take a judicial notice of. Thus where a party pleads that the act of the defendant was unlawful, or that the defendant is guilty of negligence, or that the defendant was legally bound to perform specific contract, such a pleading would be bad. In such cases, the plaintiff must state facts which establish the guilt or negligence of the defendant, or how the particular act of the defendant was unlawful, of the fact leading to the contract which thus bound the defendant.
Thus in a declaratory suit, it is not enough-to plead that the plaintiff is the legal heir of the deceased for this is an inference of law. The plaintiff must show how he was related to the deceased, and also show the relationship of other claimants, and other material facts to show that he was nearer in relation to the deceased than the other claimants.
Similarly on money suit it is not enough that the plaintiff is entitled to get money from the defendant. He must state the facts showing his title to the money. For example, he should state that the defendant took loan from the plaintiff on such and such date and promised to return the money along with specified interest on a particular date, and that he requested the defendant to return the said amount after the date but that he refused to return the money. If some witnesses were present when the money was lent or when the demand was made or when the refusal by the defendant was made, the fact should be stated specifically, for at the time of the trial the court may order the plaintiff to adduce evidence in support of his statement, and then he can rely on the evidence of the witnesses in whose presence he had lent money or in whose presence he had made a demand for the return of the money.
In a matrimonial petition, it is not enough to state that the respondent is guilty of cruelty towards the petitioner-wife and that she is entitled to divorce. The petitioner must state all those facts which establish cruelty on the part of the respondent. She may state that her husband is a drunkard and used to come home fully drunk and in a state of intoxication he inflicted physical injuries on her, she should specify dates on which such incidents took place; or that the husband used to abuse her or
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beat her in the presence of her friends and relations or that after her marriage she was not allowed to visit her parents or that he was forcing her to part with her dowry, giving threats of physical beating; or that immediately after her marriage till date the respondent did not even talk to her nor he cohabited with her. It is such facts which can establish physical or mental cruelty.
In another example plaintiff files a suit for negligence and damages. It is not enough for him to state negligence. First of all the plaintiff must state those facts which establish the defendant's duty towards the plaintiff. Thereafter, he must state how and in what manner was the defendant guilty of negligence. Thus he must state all the facts on which his plaint is based. The inference of law to the breach of duty should be left to the court because the correct legal principles will be applied by the court and the plaintiff cannot even add any prayer that a particular legal conclusion which follows must be applied. The only prayer that he may add is that the relief may kindly be granted to him.
Omission to state all the fact renders the pleading defective whatever inferences of law might otherwise have been pleaded. Such a plaint may be rejected on the ground that it discloses no cause of action. The plaintiff or the defendant as the case may be, and his counsel must be on their guard not to omit any facts and straight-a-way jump to pleading legal interference without stating such facts.
For example, in a suit for recovery of money for the goods sold, the defendant should not just take the plea that he is not liable. Such a statement is a plea of law, and can hardly stand and in spite of his good defence his case will fail. In such a case the defendant must clearly state that he did not purchase any goods from the plaintiff nor was there an agreement to do so. He may also state that though the goods were sent to him, but he did not take the delivery as he had placed no order therefore or that the goods were sold to him on credit and the money was to be paid to the plaintiff after the sale of such goods and the goods were still lying with him unsold, and that he was willing to return the goods to the plaintiff in accordance with the written or oral understanding that in case of the goods remaining unsold the same shall be taken back by the plaintiff. Such facts would be valid pleas.
In another example of a suit for defamation and damages, it is not sufficient for the plaintiff to state that the defendant defamed him and therefore he was entitled to damages or special damages. The plaintiff must state all the facts of the defendant act or acts such as his public utterances in which he named the plaintiff and made remarks about his character or profession or the publications in which he was painted in a manner as would in the opinion of a common man lower him in the eyes or estimation of society. Wherever possible the plaintiff must give the exact words spoken or used in the entire sentence or statement and also give the general, grammatical or implied meaning of such words spoken or used. Wherever there is any ambiguity, he may take the plea of "inuendo" and state how such a remark was commonly understood by persons known to him. Thus the plaintiff should build his case on facts from which the conclusion would naturally and logically follow.
Examples of Bad Pleading:
A few instances of bad pleading for the benefit of the law students who whish to join the Bar: A lawyer should be careful while drafting a plaint or a written statement. Sometimes, there is slight difference between a statement of fact and a statement of law and a lawyer fails to notice it. The mental computer must constantly be at work marshalling the facts and separating such facts from legal inferences.
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inference of law stated is unnecessary. It should be remembered that where such inferences of law are tolerated, they should not be pleaded without pleading the facts. Thus when facts are so correlated as to justify the legal inferences which necessarily follow, the pleadings can be tolerated. But when legal inferences are pleaded without setting out the facts the pleading would be bad.
The rule stated above applies to cases which fall within the purview of the law which the courts are bound to take judicial notice of. For ex., Indian Courts are bound to apply the Indian law to the cases in India. But the Indian court is not bound to take judicial notice of the foreign law. Thus where the pleadings make any reference to foreign law, or custom such foreign law or must be stated clearly with proper reference to the statute. Similarly custom may govern the parties to a suit and the Court may not take notice of such custom unless such custom is stated. In matrimonial matters custom has been recognised in certain matters such as marriage between the persons who are spind as or who area within the degrees of prohibited relationship. If a party proves that a custom prevailed in the community which permitted such a marriage, the pleading would be correct and not bad. Similarly in trade and commerce there are many customs which govern the business relations between the parties. Such customs ought to be pleaded along with the facts. At the same time, a custom which has been repeatedly brought to the notice of the courts so that it has acquired the force of law need not be pleaded, as the courts would take judicial notice of such a custom.
The rule also permits the legal pleas denying the legal right of the other party. For example, the defendant can take a plea res-judicata as a valid defence against the plaintiff, or limitation can be pleaded in defence. Where a landlord files a suit against a tenant as a trespasser, the defendant can take the legal plea of estopple under s.116 of the Evidence Act. Such pleas can be taken, and in fact, must be taken at the first instance by either if the parties, because if such pleas are not taken into the first instances the defaulting party will not be allowed to adduce evidence to prove it. Such a defect may not even be removed by an amendment of the pleading as the courts would not permit such an amendment as it takes away a right which has accrued to the party.
(2) Material Facts: when a litigant comes to a legal practitioner, he brings all facts and circumstances pertaining to a case. In fact, he tries to narrate each and every event which may possibly have a remote bearing upon the case. Not all such facts are important. If every thing were to be included in the plaint, then the plaint is likely to become so voluminous that the learned judge is likely miss the essential track and be guided by the inessentials.
What is necessary therefore are the facts which are material; facts which have a direct and immediate bearing on the case, facts which are secondary or incidental may easily be omitted. Of course, the lawyer must weigh each fact and test its significance and relevance in relation to the given case. Marshalling of facts is what a good lawyer would always do before he sets them down in form of a plain.
The second fundamental rule of pleading is therefore, that every pleading shall contain and contain only, a statement of the material fact as on which the party pleading relies for his claim or defence. This rule is embodied in order VI Rule 2 and it requires that -
I. the party pleading must plead all material facts on which he intends to rely for his claim or defence as the case may be; and
II. He must plead material facts only, and that no fact which is not material should be pleaded, nor should the party plead evidence.
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The rule is indeed a strict one. The question would naturally arise: what are the material facts? Indeed every fact on which the cause of action or the defence is founded is material fact. The purpose entertained by the rule is that every unnecessary and irrelevant fact need not be brought on record, and the rule acts as a damper to the litigants, habit of stating all details that strike their mind, whether such details are relevant or not, it necessitates the process of elimination on the part of the litigant. All facts which will be required to be proved at the trial in order to establish the existence of a cause of action or defence are material facts. Then there are other facts which do not directly establish the cause of action or defence but which nonetheless ate material facts in that the party pleading them has an inherent right to prove them at the trial.
Whether a particular fact is material or not will depend upon the circumstances of the case. A fact may not appear to be material at the initial stage but it may turn out to be material at the time of the trial. Thus if a party is not able to decide whether a fact is material or not, or it he entertains a reasonable double as to the materiality of a particular fact, it would be better to include than to exclude, be better to include than to exclude, because if a party omits to state or plead any material fact, he will not be permitted to adduce evidence to prove such a fact at the trial unless the pleading is amended under order VI rule 17. The general rule is that a party cannot prove a fact which he has pleaded.
The task of a lawyer is therefore rather difficult. He must observe the rule that only material facts are to be pleaded, and, at the same time, he must not exclude any fact which may seem apparently unnecessary but which may turn out to be material as the trial progresses. Thus he must visualize all the possible directions or dimensions which the pleadings are likely to assume. An experienced lawyer would marshal all the facts placed before him by his client and by correlating them, and after carefully examining the interplay between such facts, decide what facts are material to establish the cause of action or defence. There after he would prepare or rough or a mental outline of the pleading and submit all such facts to a close analysis in order to make sure whether if he is able to prove all such material facts he would succeed. Bya process of elimination he must also see whether by excluding certain seemingly immaterial facts from the outline he has prepared, he would still succeed. If he can return an affirmative answer, he should exclude such irrelevant facts, but if the answer be in the negative, then he must include them Another way of testing the materiality of the facts would be to ask whether by proving a particular fact, he would certainly establish the cause of action or the defence.
The idea is that the pleading should not include any fact which would not assist the party even if such a facts is proved. And why at all waste energy, time and money is establishing the correctness or otherwise of a fact which does not advance the party's case? One of the reasons why the litigation drags on for years is that the litigants do not come to the point, there being much about nothing. In India the courts are filled with all sorts of litigation. The lawyers are taking briefs of all sorts and they are extremely busy. They have hardly any time to examine the materiality of the facts narrated to them by their clients. The pleadings, therefore, become unwidely and voluminous, so much so that at the time of framing the issues, the matter becomes really a hard nut to crack. The litigation drags on withstanding the wishes of the parties to the contrary. It is the duty of the lawyers to ensure that the pleadings. conform to the rules laid down in the code of civil procedure. They should be guided more by their own sense of proportion rather than succumb to every whim or eccentricity of their clients.
Instances of Material Facts: In a petition for judicial divorce on the ground of desertion, the fact that the respondent left the petitioner without his consent and without any justifiable excuse is material. Any other fact directly bearing upon her animus desrendi, such as her declaration before the neighbors or other relations that she is leaving the petitioner and that she would not like to go back to him, is also material.
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and all facts on which such special damages are based are material to the pleading. They are material because they will have to be proved. All such facts must, therefore, be mentioned or state. With necessary particulars to show what special damage the plaintiff suffered. For example in a suit for defamation it will have to mentioned that services of the plaintiff were terminated as a result of a particular article which damaged the professional repetition of the plaintiff so much salary which he might have continued to get but for the publication of the defamatory article
Exception to the General Rules: The general rule as stated above is that only the material facts should be stated. The rule is, however, subject to the following exceptions:
i. The performance of occurrence of any condition precedent need not be pleaded as its averments shall be implied in the pleading. But where a party chooses to contest the performance or occurrence of such condition, he is bound to set-up the plea distinctly in his pleading. However, there are conditions which the law requires that they must be satisfied. For example sec. 80 of civil procedure code, requires a notice to the government where a plaintiff wishes to file a suit against a government official or state. He must clearly allege that such a notice has been given. Similarly that the notice has been given under S.111 of Transfer of Property Act, must be clearly stated, as the law requires such a notice to be given.
ii. Neither party to a suit need allege any matter which the law presumes in his favour or as to the burden of proof of which lies on the other party, for ex. in a suit on a promissory note the plaintiff need not allege consideration as sec.118 of Negotiable instruments Act raises a presumption in his favour. It is also not necessary to state that the defendant executed the bond 'of his own free will, and without any force or fraud because the burden of proving any fact invalidating the bond lies upon the defendant. But the case is different when the defendant is a pardah nashin lady. In that case, the plaintiff must state that the bond was read out and explained to her and that she executed it of her own free will after having independent advice because in this case the burden of proving these facts lies on the plaintiff himself.
Regarding legal presumptions the exception applies to only such facts as the court "shall presume" and not to those facts which the court may presume", and therefore the facts falling under the latter class must be pleaded.
iii. Another exception to the general rule are facts which are merely introductory. Such facts only state the names of the parties, their relationships, their professions and such circumstances as are necessary to inform the court as to how the dispute has arisen. Such facts are hardly necessary or material to the pleading, but they are generally tolerated and are set in the pleadings by both the parties in order to facilitate the court to take a stock of the situation of the parties. It is better if such perfactory remarks are cut down to the minimum.
(3) Facts not Evidence: While drafting a plaint, a lawyer must distinguish between facts which are asserted and which have to be established through evidence whether documentary or oral, and facts which are, by themselves, in the nature of evidence. At the initial stage only the former facts have to be narrated, and when the state of evidence comes, then the other facts will be represented as a part of evidence in order to establish the first set of facts. Thus much before the stage of evidence comes, the opposite party can Marshall himself and be ready to meet all the allegation set forth in the plaint.
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The third fundamental rule of pleadings is that only facts must be stated and not the evidence there of there is a tendency among the litigants to mix up the bare facts with the facts which are in realty the evidence. At the stage of pleading, the court and the opposite party should be supplied with the facts and such contentions on which the claim is founded; the plaintiff must keep the facts in evidence for a later stage of evidence.
Now facts are classified under the following two categories:
(a) Facta probanda, the facts which are to be proved. These are the facts on which a party relies. (b) Facta probantia , these are the facts which are not to be stated because by their means facta probanda are proved. Thus these facts are the evidence as to the existence of certain facts on which the party relies for his cause of action or defiance as the case may be. Facta probanda are not facts in issue, but they are relevant in that at the trial their proof will establish the existence of facts in issue. No doubt in certain cases both the facts in issue and there facts in evidence are mixed up and are almost indistinguishable. For ex., A was married to B in accordance with a particular custom governing marriage between A and B. in this case the "custom" is a both fact in issue and a fact in evidence, because once the custom is proved, then the marriage also, stands proved. In the pleading it is sufficient to allege that the marriage was celebrated in accordance with a particular custom. At the evidence stage, it will be sufficient to refer to the manual of customary law which records customs,
The following rules have been enacted under the code of civil procedure and hereunder we elaborate them with the help of suitable illustrations:
(1) Malice, Knowledge etc : Order VI Rule 10 clearly says that wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. Thus it is sufficient to allege that the defendant has cheated the plaintiff to the extent of Rs. 10,000/-. It is not necessary, nor would it be in order, to plead how the defendant has cheated the plaintiff. The "how" part would be evidentiary and should not be pleaded. In a suit for malicious prosecution the plaintiff should only allege that the defendant was actuated by malice in prosecuting him. t.'4e should not stated the details of any previous hostility of the defendant's previous conduct to wards the plaintiff.
Notice: Order VI Rule 11 deals with notice. It says that wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such notice as a fact unless the form or the precise terms of such notice or the circumstances from which such notice is to be inferred, are material. In many cases notice has to be alleged as a material fact. For ex., in a suit to recover trust property from a person to whom a trustee has given it in breach of the trust or in a suit where priority for subsequent transfer is claimed. In such cases, it is sufficient to allege notice as a fact. It is not necessary to state the entire from or precise words of the note, nor any other circumstances from which such a notice could be inferred sometimes, however, the form or the precise words of the notice are material under must be alleged. For ·ex., where the plaintiff claims to have determined the monthly tenancy by 15 days notice to quit the pleading should state "On 14th Jan. dated, the plaintiff served upon the defendant a written notice calling upon him to vacate the house and deliver up possession to him on the expiry of January the 31st In such cases the precise form and words of the notice are material and must therefore be clearly stated in the pleading.
(2) Implied Contract: Order VI Rule 12 states that wherever any contract or any rotation between any persons is to be implied from a series of letter or circumstances, it shall be sufficient to allege such contract
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f) In any pleading, the use of "if', "but" and "that" should be, as far as possible, avoided. Such words tend to take away the "certainty" and can cause ambiguity.
g) Necessary particulars of all facts should be given in the pleading. If such particulars are quite lengthy, then they can be given in the attached schedule, and a clear reference made in the pleading. For example, in an action for special damages, it may be stated in the body of the pleading that the details of special damages are given in the attached schedule.
h) Pleading should be divided into paragraphs and such paragraphs should be numbered consecutively. The division of the pleading into paragraphs should be so done as to endure that each paragraph deals with one fact. At the same time, the entire pleading should appears a running and willknit matter, must not look like isolated fact placed together. Inter-relations ships of paragraphs must seem to exist.
i) Very often, pleadings are full of repetitions. Such a tendency makes the pleadings not only lengthy, but also results in confusion.
Pleading Must be Signed: Order VI Rule 14 makes it obligatory that the pleading shall be signed by the party and his pleader (if any). Provided that where a party pleading is by reason of absence or for ad cause, unable to sign the pleading, it may be signed by any person duly athorized by him to same or to sue or defend on his behalf.
The main purpose of this rule is to prevent any possible denial by any party that he did not authorize the proceedings. Thus even if pleader produces the vakalat-nama duty authorizing him to fie t or defend the suit, the signature of the pleader alone would not do. The pleading must bear the signature or thumb impression or any other identification mark of the party concerned. The only exception the party is unable to sign by reason of absence or any other good cause. Mere absence would sufficient; "absence" in this context means such as would not enable the party to be present. Where the party is unable to sing the pleading as aforesaid, then a person duly authorised by such a 1st append his signature to the pleading. Such authority to sue or defend must be produced before the court
Verification of Pleading: Order VI Rule 15, states every pleading shall be verified at the foot by the by any of the parties pleading or by some other person proved to the satisfaction of the court to ainted with the facts of the case. The person verifying shall specify, by reference to the numbered paragraphs of the pleading what he verifies of his own knowledge and what he verified upon on received and believed to be true. The verification shall be signed by the person making it and te the date on which and the place at which it was signed. The aim of verification is only to fix :msibility of the statements made in the pleading upon same one before the cant proceeds to adjudicate upon them. A person making a false verification is liable to be punished under the Indian Penal Code, as making a false statement is by itself an offence. Therefore the responsibility of verifications is very great and its significance and the consequences thereof must be realized.
After the signature to the pleading some space may be left out and them verification should begin.
Verification: I…….. (Name), son of Shri................... (Father's name) verify that the contents of paragraphs alone to
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…………… Of the above plaint are true within my personal knowledge and that the contents of paras ……….. (mention the paras by their number in the pleading) are believed to be correct upon information received and believed to be true.
Verified at ……….(Place) on this ………….. (Date) day of month/years.
Sd/- (Party)
Any defective verification is not fatal to the suit, nor can the court dismiss any suit on that ground alone this applies to both the plaint and the written statement. However, any defect in the verification can be cured by way of amendment, and when it is done, the plaint is deemed to have been presented on the same date as the original date of the initial pleading. This does not, and should not, minimize the importance of verification is defective, then not with standing the fact that the defect can be removed at ant stage of defect can cause considerable delay in the adjudication. Therefore it is incumbent upon the parties to pay due care to the verification part in the same manner as they would normally to pay the main pleadings.
In the code of civil procedure, it is laid down that particulars must be stated with respect to fraud, breach willful default or undue influence if pleaded. In other cases, when more particulars than are exemplified in the forms on Appendix A of CPC are necessary, they are to be stated, dates when necessary should always be given. Pleas should be definitely mentioned so that they can be properly identified. Particulars of the property about which a claim is made should be clearly given. In a suit for money, particular of the account by which the amount claimed has been arrived at should be given. Fraud should pleaded with the greatest possible care and party pleading it must fully realise his responsibility for doing so. The proper way of pleading fraud is to set out all the facts and representations alleged to be frivolous in their full details and then to state that whether the representations were in oral or in writing. If oral, the substance of such representations should be given alleging the data and place when and where they were made and the and the person by whom they were made it they were in writing, the document or documents containing them should be clearly identified in the particulars. The changes of fraud must be substantially proved as alleged and when one kind of fraud is changed, another kind of fraud cannot, upon failure of its proof be substituted for it, nor it is proper for an appellate court to entertain a case of fraud other than the one specifically alleged in the pleading.
b) Pleading CIVIL
PLAINT: Particulars to be contained in plaint provided under order VII, Rule 1. According to this rule the plaint shall contain the following particulars.
a) The name of the court in which the suit is brought; for ex. "in the court of District Judge al N. Delhi" when the suit is to be filed before the district judge, The number, of the suit has to be noted in the following line titled "suit No- of 2009". b) Next to the heading the name, description and place of residence of the plaintiff, c) The name, description and place of residence of the defendant, so far as they can be ascertained; d) Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect, e) The facts constituting the cause of action and when it arose,;
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(ii) Statement showing that the court has jurisdiction; (iii) Statement of the value of the suit for the purpose of jurisdiction and court fees and it should be stated that the necessary count fee has been affixed/paid.
(iv) When a suit is filed after the expiry the period of limitation a statement showing the ground or grounds on which he has claimed exemption from limitation.
(v) Every relief sought for by the plaintiff should be accurately worded. The plaintiff can claim more then one relief, in the suit. He can seek reliefs alternatively. If the plaintiff can seek more than one relief on the same cause of action he must seek all. If he omits to seek a relief in the suit his subsequent suit for such relief omitted would be barred under order 2. Rule 2 CPC unless he has obtained leave in the earlier suit to file a fresh suit on the said relief omitted.
Signature of the plaintiff along with the signature of the advocate.
At the foot of the pleading, the plaintiff should /or anyone else, who is acquainted with the facts of the case, should make verification.
Affidavit should also be enclosed with plaint as provided under CPC order 6 Rule 15 (4).
All documents on which the plaintiff relies for his claim should be enclosed with a separate Iist of documents according to order 7 Rule 14 (1) CPC 1908.
Name, Description and place of Residence of parties in plaint and written statement when the plaintiff or defendant is:
1) Individual person - AB, son of………….. Resi of…………..
2) Proprietary concern -AB, song …………. Resi. of ………….proprietor of MIs XYZ and carrying on business at ………….
3) Partnership firm - MIs XYZ, a partnership firm registered under the Indian partnership Act. with its principal place of business at ………….
4) A company - MIs XYZ, Pvt. Ltd. A company incorporated under the companies Act having its registered officiate………….
5) Company in Liquidation - MIs XYZ Ltd. In liquidation through liquidator Mr. ABC having office at ………….
6) Statutory Corporation - The life insurance corporation of India established and constituted under the life Insurance Act, having its registered office at ………….
7) Municipality – Municipal corporation of Delhi through its chairman, town hall, delhi.
8) Minor - AB, son of …………., a minor through his father and natural guardian CD son of ………….
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Resi. of ………….
9) Person, of unsound mind : AB son of …………. resi of a person of unsound mind through his guardian next friend CD son of …………. Resident of ………….
10) Government of India: The Union of India, through secy. Ministry of education, New Delhi.
11) Any Government: State of Bihar through is Secretary, Patna.
12) Cooperative Society: MIs. XYZ Ltd. A cooperative Society registered under the Delhi co- operative societies Act, having its office at ………….
(ii) Written Statement (Order VII) C.P.C.
A written statement is required to be filed by the defendant in answer to the claim made by the plaintiff in his plaintiff, which is delivered to the defendant along with the summons to attend at the first hearing of the suit. The number of the suit is noted in the summons. Before drafting a written statement, one should verify the provisions set out for drafting a plaint under order VI of CPC. Examine whether the suit is barred under order II Rule 2 CPC, carefully study the material facts and the documents referred to in the plaint, check whether the documents are duly stamped, see that the material facts are specifically denied. Study order VIII, CPC, make sure set-off or a counter-claim to be pleaded or not. Verify also whether the claim is barred under principles of res judicata.
In the written statement, the defendant should mention at the top the name of the judge or court, trying the suit. Next, the name of the parties first named are mentioned, as it is not necessary to mention the names, description and place of residence of all the parties in the title of the written statement.
The answering defendant thereupon replies to each Para of the plaint, unless there is some preliminary objection, the consideration of which is necessary in the first instance before the suit is tried on the merits of the case. Objections relating to the maintainability of the suit, locus standi of the plaintiff to file the suit, the non-joinder or mis-joinder of parties as to the jurisdiction of the court or as to limitation may: be included in the preliminary objection. Similarly, objections relating to court fees paid or valuation of the suit for process of jurisdiction are taken up in the first instance,
The defendant may have additional facts to be stated which do not find and appropriate place in reply to the assertions made by the plaintiff in his plaint such additional facts or pleas maybe added in the written statement as additional pleas.
The filing of a written statement by any defendant, whether it is a Government or not a Government, whether it is an ordinary person or a statutory body a corporation or any body else, is covered by the same provision, namely, order VIII, Rule 1.there is no other provision dealing with the filing of a written statement.
It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth except damages. Every allegation of fact in this plaint, if not denied specifically of by' necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted.
The pleading 'not know' is not tantamount to the pleading 'not admitted'. So also the plea of no knowledge'
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alone should be given after the name of the court.
The body of the application should be either in the form of petition:
"The humble application of the plaintiff in the above mentioned suit, respectfully submits as follows' or it may be written like plaint. "Application for restituting under section 144, CPC by the defendant in the above mentioned suit
The applicant humbly begs to submit as follows:
It is not absolutely necessary that the law under which the application is filed should be given.
Like pleadings facts in the application should be stated in brief and concise language. The application should be divided into paragraphs and one paragraph as far as possible should narrate one allegation except where two or more allegations are so connected with each other that it is better to give them in one paragraph. With some application affidavits are filed and if in such cases the facts are too long things need not be narrated in the application. They should only be narrated in the affidavit and in such cases the application should be worded in some such form:
"For the reasons above in the annexed affidavit, the applicant prays that etc".
The application should end with a prayer. The payer should be in the following form:
"The applicant! Plaintiff! Defendant, therefore prays": etc.
After prayer, should follow the signature of the applicant where law requires the verification, the application should also be verified.
Examples of Interlocutory Applications Provided under CPC
a) Application under order 6 Rule 17 CPC for amendment, b) Application under section 95 CPC for compensation for arrest or attachment before judgment on insufficient grounds. c) Application under sec. 144 for restitution. d) Application under sec. 151. e) Application under sec. 152 for amendment of judgments, decrees or orders, f) Application under order IX Rule4 for setting aside an order dismissing a suit for default of the parties, g) Application under order IX Rule 9 CPC for setting aside and order dismissing a suit for plaintiff's default, h) Application under order IX Rule I, for leave to deliver interrogatories, i) Objections under sec. 47 or sec.60. j) Objections under order XXI Rule 58, or order XXI Rule 89, 90, 91, or order XXI, Rule 98, k) Substitution applications under order XXII CPC. l) Application under order XXVIII Rule 1 or Rule 5,
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m) Applications under order XXIX. For an interim injunctions, application under order XL, for appointment of receiver, n) Application under order XLVII for review.
(iv) ORIGINAL PETITION
Petitions. or suits are interchangeable terms. However, in practice, the words 'petitions' and 'suits' are generally used to mean formal applications for seeking legal remedy. Suit of a civil nature is ordinarily tried in civil court. Every person has a right to bring a suit of a civil nature and civil court has jurisdiction to try an the suits 01a civil nature. Due to increasing litigation and delays in civil suits, parliament and state legislative created special courts and Tribunals with special enactments. The reason behind this exercise is for speedy disposal of cases of various types. For ex. Cases of ejectment in respect of urban buildings between the land lord and tenant are now dealt with by special courts created under various state legislations. Railway accidents claims are decided by railway claim Tribunals, claims by Industrial woken for payment of wages are entrusted to prescribed authorities. So is the case with the workman's compensation claims. In some states and in center also service tribunal have been created for adjudication of cases of public servants in disputes arising out of their employment, including dismissal, terminator of service, etc. At many places family courts have been established to deal with matrimonial disputes.
In such cases which are dealt with by special courts under special enactments the party aggrieved expected to approach such special courts or tribunal and the jurisdiction of the civil courts under sec. 9 CPC is barred. These tribunals are given various powers of a civil court while trying a suit under CPC through they are not regular civil courts. Very often the presiding officer of these tribunals courts are also presiding officer, of regular civil courts for ex. In family courts and Motor Vehicle Tribunal.
The provisions of the CPC do not as such necessarily apply to proceedings before these tribunals although proceedings are civil in nature. To what extent provisions of the CPC are applied to a particular civil proceeding depends on the statute under which the tribunal is created.
The fundamental rule of pleadings mentioned in the part I of this study material are broadly applicable even to civil proceedings, though because of the relatively summary nature of those proceedings the same rules may not apply in their full rigors. In may case the proceedings are commenced not through -Plaint" but through "petition".
Even though the fundamental rule should apply to a petition also, yet it is necessary for the pleader to study the statutory provisions carefully so that a blind adherence to the provisions of CPC may not land him in difficultly. For ex., Order 30, Rule I, permits a partnership firm to sue or to be sued in the name of the name of the firm. If the CPC has been applied as a whole to such civil proceedings, then of course, order 30 Rule 1 would also apply, but if the statute is silent on this point, then it would be necessary for all the partners the firm to sue or to be sued jointly in their individual names, instead of in the name of the firm. Like wise in respect of a claim petition before a service tribunal it may be necessary to implied the appointing authority of the public servant. In a suit before the civil court it is the Union of India or the state concerned which is required to be sued vide Art, 300 of the constitution of India. The appointing authority may be an authority subordinate to the Government but in a civil court it is not necessary or proper to impaled such and authority as defendant. These points of difference should be kept in mind while drafting pleading in such civil proceedings.
