DRAFTING OF PLEADING AND CONVEYANCING

Will doesn’t come under TPA as TPA requires all essentials of a contract, while under will,
transfer takes place between a living and a dead person.

Modes of transfer – will, sale, exchange, gift, lease, mortgage.

Rejection of plaint – Order VII Rule 11 of CPC.

 While drafting a plaint/written statement, the advocate drafts it in a representative

capacity i.e., on behalf of the client. The advocate has to keep himself in his client’s foot
and draft it from that perspective. This depends on the facts and information shared by
the client.
 Suit is a document which talks about the violation of any right, and the legal remedy for
it. Suit can be civil or criminal. In civil suit, it is right in personam, and in criminal suit, it
is right in rem.
 4 important elements of a suit – two or more parties, cause of action, legal
issues/violation of certain right, and relief sought.
 CPC states that a suit is any proceeding in a court of justice in which a person pursues
remedy to recover right or a claim. It is a process instituted for the recovery of any right,
recovery or enforcement of any right.
 But suit is nowhere defined.
 There are two different kinds of suits – civil and criminal suits.

4 essentials in a civil suit –

1. Two or more parties. Here, important terms are misjoinder and non-joinder. Misjoinder
is wrongly joining a party to the suit, and non-joinder is not joining a necessary party. In
non-joinder, the suit wouldn’t be comprehensive and the party can stay the enforcement
of decree. While misjoinder as such doesn’t affect the decree.
2. Fact and fact in issue – necessary facts should be mentioned in any plaint. Any draft
requires mention of facts. Section 5 of Evidence Act states that evidence may be given in
any suit or proceeding of the existence or non-existence of every fact in issue and
 relevant facts, and of no others. Fact in issue means any fact from which, either by itself
or in connection with other facts, the existence, non-existence, nature or extent of any
right, liability, or disability, asserted or denied in any suit or proceeding, necessarily
follows. One fact is said to be relevant to another when the one is connected with the
other in any of the ways referred to in the provisions of this Act relating to the relevancy
of facts. Sections 5-55 deal with relevancy of facts. Relevancy is thus determined by the
Evidence Act itself. Whatever facts have to be brought to the court in one go only. The
parties cannot later on add issues.
3. Subject matter – there are 3 jurisdictions – territorial, pecuniary and subject matter
jurisdiction.
4. Relief claimed – relief is claimed on the basis of rights violated. Here, it is important to
understand what relief the client wants from the court. Relief has to be mentioned in the
suit itself so that the pecuniary jurisdiction of the court is kept in mind.

There should be a cause of action i.e., violation of a civil right.

GENERAL PRINCIPLES OF FRAMING OF SUITS

 Rule 1, Order II, CPC is important. While framing suit, every suit shall as far as
practicable be framed so as to afford ground for final decision upon the subjects in
dispute and to prevent further litigation concerning them.
 Interest rublicae ut sit finis litium – it is in the government's interest that there be an end
to litigation. Thus, if any party has any redress to a subject matter, all similar rights
available should be clubbed together and claimed in one go. As per res judicata as well,
this is important. Also, to prevent double jeopardy, it is important.
 Here, it is important that subject matter can be the same, but subject may be different. For
instance, in respect of the same property, one suit can be for arrears of rent, and another
new suit can be for eviction, as the subject is different.
 Ramaswamy v. Vythianath – Court defined subject and subject matter. Subject matter
can be same, but all rights of a similar nature related to a subject should be claimed in
one go. Subject in dispute refers to the cause of action – the right one party claims over
another with reference to a particular legal relation or legal act or transaction.
 Section 11, Explanation 4, CPC – Any matter which might and ought to have been made
ground of defence or attack in such former suit shall be deemed to have been a matter
directly and substantially in issue in such suit.
 Order II, Rule 2, CPC – Every suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish
any portion of his claim in order to bring the suit within the jurisdiction of any Court.
 Cause of action means existence of a legal right and violation of it. All claims with
respect to a cause of action should be claimed in one go. Mohammad v. Mehboob Ali,
PC 1949 defined cause of action:
i. Where the claim in the new suit is in fact founded upon a separate cause of action
from the former suit.
ii. Cause of action means and includes every fact which will be necessary for
plaintiff to support his case.
iii. If the evidence to prove two claims differ, then cause of action is also different.
 Things which an advocate has to know when a party approaches him:
i. Whether the case is within the limitation.
ii. The facts of the case.
iii. How to apply those facts to the case.
 Joinder and misjoinder – it is the duty of the advocate that all issues with respect to any
cause of action should be brought under one suit. There can be more than one plaintiff
and defendant and more than one cause of action also. Order II Rule 3 talks about
joinder. It is read with Rule 1 and 3 of Order 1.
 Order II Rule 3: Joinder of causes of action— (1) Save as otherwise provided, a plaintiff
may unite in the same suit several causes of action against the same defendant, or the
same defendants jointly; and any plaintiffs having causes of action in which they are
jointly interested against the same defendant or the same defendants jointly may unite
such causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit
shall depend on the amount or value of the aggregate subject-matters at the date of
instituting the suit.
  Order I Rule 1 – Who may be joined as plaintiffs—All persons may be joined in one
suit as plaintiffs where— (a) any right to relief in respect of, or arising out of, the same
act or transaction or series of acts or transactions is alleged to exist in such persons,
whether jointly, severally or in the alternative; and (b) if such persons brought separate
suits, any common question of law or fact would arise.
 Order I Rule 3 – Who may be joined as defendants—All persons may be joined in one
suit as defendants where— (a) any right to relief in respect of, or arising out of, the same
act or transaction or series of acts or transactions is alleged to exist against such persons,
whether jointly, severally or in the alternative; and (b) if separate suits were brought
against such persons, any common question of law or fact would arise.
 Thus, there has to be same transaction or common question of law or fact.
 The first question an advocate must know is of limitation. The second one is of relief to
be claimed and whether it is within the pecuniary jurisdiction of the court. Usually,
causes of action are clubbed, but if the court thinks otherwise, it can prevent clubbing of
causes of action.

There can be 3 situations:

1. Same plaintiff, same defendant and several causes of action. Thus, there can be clubbing
of cause of actions. Order II Rule 6 is relevant here. Power of Court to order separate
trials—Where it appears to the Court that the joinder of causes of action in one suit may
embarrass or delay the trial or is otherwise inconvenient, the Court may order separate
trials or make such other order as may be expedient in the interests of justice.
2. Several plaintiffs, same defendant and several causes of action. Two parties can join as
plaintiffs when there is a same act or transaction or series of acts or transactions, or a
common question of law or fact. Even if the plaintiffs are not jointly interested in all
causes of action, there can be joinder of plaintiffs.
3. Same plaintiff, several defendants and several causes of action.

Situations where there is misjoinder:

1. When there are several plaintiffs who are not jointly interested in all causes of action.
 2. When the cause of action doesn’t arise from same act, transaction or series of
transactions.
3. Even if the plaintiffs are jointly interested, there is no common question of law or fact.

When there is misjoinder or non-joinder, amendment of plaint has to be done. 3 ways:

i. Application given by the plaintiff to add or remove any party.

ii. Court acting suo motu – court has the power to ask the party to add or remove
plaintiff. This power is under Order I Rule 10(2). There are two circumstances
wherein court will order this:
a. There is a bonafide mistake done by the parties in addition or non-addition, and
b. The amendment is necessary to determine the real matter in the dispute.

Section 151 of CPC also talks about the inherent power of the court for addition and
deletion of parties.

iii. Inter minus i.e., application on behalf of the third party. It is also under Order I Rule
10(2).

There are 8 different kinds of parties in the suit:

i. Necessary party – that party which is essential for the final determination of rights or
complete settlement of issues in the suit. For instance, to determine any matter related
to a partnership, all the partners are necessary.
ii. Proper party – parties whose presence is not essential for the determination of the
suit, but they may be required at a later stage. All necessary parties are proper parties,
but all proper parties are not necessary parties.
iii. Inter minus – third parties or third persons who are originally not parties but who
claim interest in the matter and have right to interfere at any stage of suit in defense
of their own interest.
iv. Representative parties – they can bring a suit in two forms:
i. When they have a direct interest in the suit as well. For instance, Karta
represents case for his interest along with other members of the HUF.
ii. When their interest is not directly involved, for instance, trustee or drafter of
PIL.
 v. Parties lending names – where a trust is there and trustee refuses to bring suit, the
beneficiary lends his name to bring a suit. Thus, where the original party doesn’t take
initiative, another party can lend his name.
vi. Where plaintiff and defendant is the same – for instance, a partner sues the
partnership firm in the capacity of a creditor. Here, the same set of persons would act
as plaintiff and defendant.
vii. Persons acting in more than one capacity. For instance, same person acting as a
partner and a creditor.
viii. Quasi-parties – they have no interest in the plaint but they want to listen the
proceedings of the court. Maybe they have a similar matter going on.

Who decides the parties to the suit – parties themselves on advice of advocate.

PLEADINGS

 They include both the plaint and the written statements. They are the most essential
documents which are drafted by the advocates on behalf of the plaintiff and the
defendants.
 During Kautilya’s period, in Yajnavalkya Smriti, there were rules related to pleading.
Pleadings consist of two things – plaint and answer.
 Plaints could be drafted on basis of apprehension or on basis of facts.
 Facts were also divided into two:
i. Which contains statement of denial.
ii. Which contains the statement of positive wrong.
 Answer constituted 4 things:
i. Admission.
ii. Denial.
iii. Special plea.
iv. Res judicata.
 In the plaint, essential elements – cause of action, facts, issues for consideration,
jurisdiction, prayer.
 In Narada Smriti, the claimant had to submit a written complaint.
 In Mohammedan Period, Qazis and Maulvis used to decide the case.
  In British Period, Mufassil Courts were the small courts where religion based judicial
system was used. While in another system of courts, crown based judicial system was
there.
 Regime of Henry II – they started with written pleadings. But only one cause of action
was decided by the court even if more than one cause of action or defense was present.
One plaintiff, one defendant, one cause of action. Person had to choose one cause of
action amongst multiple.
 In Victoria’s regime – all issues related to a particular matter should be decided in one
go. Clubbing of causes of action started in Victoria’s regime.
 In Edward Ford’s regime – the system related to written pleadings started in a systematic
manner.

DEFINITION OF PLEADING

 WB Odger and PC Mongha are 2 important thinkers. Odger said pleadings are
statements in writing delivered by each party alternatively to his opponent stating what
his contention will be at trial and giving all such details as his opponent needs to know in
order to prepare his case in answer.
 According to PC Mongha, pleadings are statements written, drawn up and filed by each
party to a case stating what his contention would be at the trial and giving all such details
so that the opposite party may know what case he has to meet or what is the reply to his
case.
 In Order VI Rule 1, it is mentioned that plaint and written statement together are called
pleadings.
 Order I Rule 4 sub-rule 3 of Madras High Court Rules defines pleadings as including
plaint, written statement, petition, specific suit, memorandum of appeal and
memorandum of objections.
 Thus, pleadings are written statements filed by parties to a case specifying all material
and substantial facts relating to cause of action, legal rights, legal duties, legal benefits,
disability, legal immunity, legal status, general right, public status and public right before
the competent court for seeking legal remedy.
OBJECTIVES OF PLEADINGS

There are 5 objectives of pleadings:

i. To bring parties to the case on distinct issues.

ii. To elaborate real point of controversy between the parties through relevant and
material facts. All material and relevant facts should be mentioned in the pleadings.
iii. To minimize time and expenses involved in legal proceedings.
iv. To remove doubts and ambiguities related to legal claims.
v. To help courts to focus on the main issue and dispense justice.

Bullen and Leake have given some other objectives:

i. To bring parties to definite issue.

ii. To prevent surprise and miscarriage of justice. When you include all claims, issues
and causes of action, there would be no surprise in the later stages.
iii. To avoid unnecessary expenses and trouble.
iv. To save public time. As the court is to serve the entire public, it cannot be occupied
with a single case.
v. To eliminate irrelevancy.
vi. To assist court in dispensing justice.

Pleading is thus a bridge between the client and justice.

In pleadings, law is not mentioned. This is because in Evidence Act, there are certain facts
which need not be proved, and judicial notice can be taken of them. Thus, judicial notice is taken
of laws as judges are expected to know them.

Facta probanda and facta probantia

 Facta probanda are the facts which need to be proved and facta probantia are the facts in
the nature of evidences which need not be proved.
 Section 3 of Evidence Act defines “Evidence” means and includes –– (1) all statements
which the Court permits or requires to be made before it by witnesses, in relation to
matters of fact under inquiry; such statements are called oral evidence; (2) 4 [all
 documents including electronic records produced for the inspection of the Court;] such
documents are called documentary evidence.
 For instance, in a dispute involving partnership firm, the sharing of profits is a fact which
has evidentiary value. Merely giving this fact is of no value as it is common to all
partnerships, and it wouldn’t be able to substantiate the point.
 Exceptions to this – presumption. It is an inference drawn from the facts. Section 4 of
Evidence Act provides may presume and shall presume. ‘May’ is a presumption of fact
and ‘shall’ is a presumption of law.
 Section 114 gives presumption of facts i.e., which is based on how facts are occurring. It
is a logical reasoning any prudent man would draw after looking at circumstances.
 While shall presume is different in two ways:
i. In may presume, court may call for the proof. But in shall presume, until and
unless the other party rebuts at first instance, court shall presume the existence.
For instance, presumption of dowry death if certain circumstances are fulfilled.
 No party needs to prove any fact through law unless the burden of proof lies on him. In
case of presumption of guilt, the accused has to rebut through law. Thus, when a party
has to state a presumption of law, law is stated.
 Second – foreign law. Foreign law is considered as a fact and it need not be proved.
 Third – mixed question of law and fact. For instance, question of limitation, even
though it is a question of law, it has to be proved.
 Fourth – condition precedent has to be mentioned in the plaint, even though it relates to
law.

Thus, in pleadings, we have to mention only facts, and not law, except where law is used as a
fact. 4 exceptions.

i. Presumption of law.
ii. Condition precedents – they have to be mentioned in the pleadings. But conditions
which are required by law need not be pleaded.
iii. Mixed question of law and fact.
iv. Foreign law.

Specific terms
 Particulars in a pleading – Order VI Rule 4 (particulars to be given where necessary).
Fraud, misrepresentation and undue influence have to be mentioned in a pleading. These
are known as particulars. It is generally presumed that whenever a contract is entered
into, all the essential elements are fulfilled. Hence, whoever wants to make the contract
voidable has to state the presence of such elements.
 They are the necessary details which need to be stated in the material facts in pleadings.
 Material facts are necessary to formulate a complete cause of action.
 The basic function of particulars is to present a full picture of the cause of action.
 Particular facts would only require to be present in particular situations when case is
based on specific scenarios.
 Alternative plea – when a different set of facts are pleaded by the parties in alternative
and such set of facts are not inconsistent, then such pleadings are known as alternative
pleadings.
 Thus, even though there are different basis/rights, the claims are not inconsistent.
 For instance, if A and B have entered into contract of lease. Person is not getting
possession. So he will bring a suit for possession based on specific performance. And he
can also ask for declaration of title, where there will be indirect reference to the lease
agreement. In this manner, declaration of title and recovery of possession are both
remedies which he can claim, even though they are based on a different set of facts.
 Particulars and alternative plea are material facts which are related to the issue.
 Inconsistent plea – there are different set of facts which are inconsistent and are pleaded
by the parties in alternative. For instance, in one set of facts, a person is denying the
existence of a bond, while in another, he is claiming that even though the bond exists, it is
barred by limitation. In this manner, one fact negates the existence of another.
 As a general rule, inconsistent pleas are not allowed. But as an exception, court may
allow it. This derives its basis from Section 11 of Evidence Act – facts not otherwise
relevant are relevant if they are inconsistent with any fact in issue or relevant fact.
 Order VI Rule 7 – court may allow inconsistent or alternative pleas by way of
amendment only. Permission has to be sought from the court for amendment. Two
reasons – a new fact has come up, or there has been a genuine and bona fide mistake on
part of the plaintiff.
  Explanation IV of Section 11, CPC – if parties have not raised an issue earlier, they
cannot raise it later on, it will be barred.
 Parties have to include every fact in the pleadings. If the court finds that facts are
frivolous or irrelevant, they can be struck down.

PLAINT

 Plaint has not been defined under CPC, but section 26 of CPC provides that a suit has to
be instituted by filing a plaint.
 Plaint includes name and address of the parties, name of the court, jurisdiction, statement
of facts, issues claimed, relief.
 Plaint is divided into 3 parts – heading/title, body of the plaint, relief claimed.
 Plaint is a private memorial tendered to court setting forth cause of action and relief
claimed and stating facts which are supported and proved by affidavits.
 Order VII lays down particulars of plaint.
 In heading, the following things are mentioned:
i. The name of the court and the jurisdiction under which capacity the suit is being
brought to the court.
ii. Full name of the parties, description (age, sex, address, caste, father’s name). If
the person is filing suit in the capacity of a partner or association or company, the
address of head office is mentioned.
 The body of the plaint. It contains statements about claim of action drawn in the form of
narrative and divided into points. It has two portions – formal and substantive portions.
 Formal portion contains 6 things:
i. Date when the cause of action arose – it is important for determination of
limitation.
ii. Fact showing jurisdiction.
iii. Value and subject matter of suit.
iv. Statements relating to parties (nature of the parties) i.e., under what capacity
plaintiff is filing the suit, as it can be in representative capacity.
 v. Representative suit is in two forms – in personal capacity (where plaintiff has
direct interest), and where plaintiff has no direct interest in suit (for instance, MC
Mehta). Plaintiff must show actual interest in the subject matter.
vi. Ground for exemption in case of limitation period expiry.
 Substantive portion contains 3 things:
i. Fact showing cause of action.
ii. When more than one defendant has joined, then under what capacity they have
been joined as parties.
iii. Relief claimed. The nature of the suit decides the relief claimed. On what basis
the relief is being claimed should be mentioned.
 Order VII Rule 1 mentions all the particulars to be mentioned in the plaint.

RETURN AND REJECTION OF THE PLAINT

 Order VII Rule 11 talks about rejection of plaint and Rule 10 talks about return.
 Return is when the court does not have jurisdiction, therefore the plaint is returned to be
presented in the court which has jurisdiction.
 Rejection is done on 4 grounds as per Rule 11:
i. Non-disclosure of cause of action.
ii. Where the relief claimed is undervalued.
iii. Suit is barred by limitation.
iv. Improper stamping.

WRITTEN STATEMENT

 It is a reply to the statements made by the plaintiff. It is in the form of rebuttals and
denials.
 As per Order VIII Rule 1, within 30 days of the date of service of summons, written
statement has to be filed. And the Court can grant extension up to 90 days. In
extraordinary circumstances, court can allow up to 120 days, but not later than that.
 In one case, the court has held that it is the court’s discretion to allow written statement
even after 120 days. Salem Advocates Bar Association v. Union of India, 2005. Court
 stated that providing maximum period of time is not necessary and court can grant
extension in cases of extraordinary difficulties.
 The first thing a defendant needs to do is that after reading the plaint, if he considers that
essential points are missing, he can ask the plaintiff to mention those points. Otherwise he
can file the written statement.
 The body of written statement is divided into two parts:
i. Admission or denial of allegations made by the plaintiff. If this is not done
specifically with respect to a particular point, court will presume the acceptance
of that point by the defendant.
ii. Special plea – it can be in the form of traverse, confession or avoidance or any
objection in the form of law. Traverse means an absolute denial, refusal or
rejection of any point made by the plaintiff.
 There are 3 rules with respect to traverse.
i. Order VIII Rule 3 states that denial must be specific.
ii. Rule 4 states denial must not be evasive.
iii. Allegation of facts not denied shall be considered to be admitted, as per Rule 5(1).
 Confession or avoidance. First thing is denial. Second thing is dilatory plea or/and
objection in point of law. Third is special plea which is related to confession or
avoidance. Next is in case there is set off. Lastly, if there is a counterclaim.
 It is a general rule that any allegation in a plaint should be specifically denied in the same
sequence/order it has been mentioned in the plaint. There are two exceptions:
i. Matters of law or inferences which have been drawn from law need not be denied.
Order VIII Rule 3 states that each allegation of fact must be denied, as defendant
cannot deny matters or inferences of law.
ii. As per Rule 5, for person under legal disability, the denial need not be made.
 An objection as to law has to be raised at the earliest. Objection related to law can be
with respect to limitation period, minority of a person, jurisdiction, damages passed are
remote in nature, etc. can be raised.
 Special plea with respect to confession or avoidance of certain facts. And traverse is also
denial or refusal of facts. Difference is that traverse is absolute denial of the existence of
a fact i.e., saying there was no contract at all. While in special plea of confession or
 avoidance, the existence of contract is confessed, but it is claimed that there was no free
consent. Thus, there is confession and avoidance at the same time.
 Order VIII Rule 2. New facts must be specially pleaded—The defendant must raise by
his pleading all matters which show the suit not be maintainable, or that the transaction is
either void or voidable in point of law, and all such grounds of defence as, if not raised,
would be likely to take the opposite party by surprise, or would raise issues of fact not
arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance,
or facts showing illegality.
 Denial has to be very specific, otherwise it would not be considered.

AFFIDAVIT

 It is an affirmation of the facts stated by the litigants in their submissions.

 The content is similar to verification of a plaint. In both these, it is stated by the plaintiff
that the information is true to the best of his knowledge.
 Difference is that affidavits are supported by some other person (authority) as well.
 Evidence Act doesn’t apply to affidavits. This is because in evidence, there are 3
important examinations – examination in chief, cross examination, re-examination. While
anything sworn in an affidavit and not rebutted by the other party becomes a proved
fact/statement.
 Evidence is defined in section 3 of Evidence Act. It means and includes all statements
which the court permits or requires to be made before it by witnesses, in relation to
matters of fact under inquiry.
 Therefore, there is no need for cross-examination if the facts are supported by affidavit.
 Since witnesses giving affidavit are not required to be cross-examined, Evidence Act
doesn’t apply on it.
 Section 26, CPC – in every plaint, facts shall be proved by affidavit. This was inserted by
Amendment Act of 1999.
 Order VI, Rule 15A – it prescribes the form and manner of affidavit.
 Affidavits are declaration or oath reduced in writing, affirmed and sworned to by an
affiant, before some person who has the authority to administer oaths.
 Section 3(3) of General Clauses Act and also section 3(3) of Oath Act defines affidavit.
  In every case, the examination in chief of witness shall be in affidavit, and the re-
examination shall be taken by the court or commissioner who is appointed.
 Amar Singh v. Union of India – inconsistent affidavits which are not within Order XIX
Rule 3 or Order IX Rule 5 or according to Supreme Court rules shall not be entertained
by Court.
 If a person submits false information under affidavit, person would be punishable under
section 199 and 200 of IPC.
 Perjury wouldn’t be applicable as person isn’t considered as a witness, and he is not
examined or cross-examined under oath.
 Affidavit should be confined to those facts which a deponent is able to prove. Two
categories of facts:
i. Facts which are within the knowledge of the person.
ii. Facts which a person believes to be true.
 In the first, there is a higher level of certainty. And in second, the person should mention
the grounds for the belief, so that the judge can see whether they can be relied upon.
 Each fact has to be given in separate points and it has to be mentioned to what extent the
deponent believes it to be true.
 Order XIX of CPC talks about rules regarding affidavits.

PETITION, INTERLOCUTORY APPLICATION

 Petition is a request in writing to court in contradiction to the motion which may have
been orally stated. It is a formal application in writing made to the court for judicial
action for something that lies in its jurisdiction. It also means original petition filed for
any of the substantive relief provided under the statute.
 Execution petition – it is filed by the person after the judgment is given to execute the
decree passed by the court. It is an application to the concerned authority or court to
perform or implement all formalities necessary to give validity to a decree or the order
given by the court.
 Application – it is generally directed to some authority.
 The structure of petition is in 3 parts:
i. Name of the court and parties.
 ii. Body of the petition – similar to plaint, it should be divided into paragraphs and
confined to facts.
iii. Prayer.
 Interlocutory application – it can be for interim relief or to maintain status quo of any
proceedings. It is filed to keep things status quo till the rights have been finally decided
by the court.
 Once application and written statements are filed, and either of the parties want a
clarification on any issue, they cannot ask for it directly, but have to go through the court
by way of interrogatories.
 Interrogatories are the questionnaires submitted to the court. They are written questions
addressed on behalf of one party before the trial to the other party who is bound to
answer them in writing upon oath.
 Order XI Rule 1 of CPC discusses discovery by interrogatories. Interrogatories need to
be provided only after the leave of the court. Only when court grants permission,
interrogatories can be there. Also, interrogatories must relate to the issue at hand i.e.,
things mentioned in the pleadings. Then the other party would be bound to answer them
on oath. New fact must first be brought to the court by additional pleadings.
 8 kinds of interlocutory pleadings. After filing of plaint, plaintiff can file application for
the following:
i. Arrest of the defendant before the judgment. Section 94 and 95 of CPC, and Order
38, Rule 1-4.
ii. Attachment of the property before judgment. Section 94 and 95 and Order 38,
Rule 5-13.
iii. Interim injunction – section 94 and 95, Order 39, Rule 1 and 2.
iv. Appointment of receiver.
v. Security for cost.
vi. Withdrawal of suit.
vii. Payment into the court.
viii. Compromise of the suit.
REVIEW, REVISION, REFERENCE

 Section 113, 114 and 115 talk about review, revision and reference,
 Reference – section 113 read with Order 46 Rule 1 and 2. Any court may state the case
and refer the same to get the opinion of the High Court. Proviso to section 113 provides
that if there is question as to validity of any Act, Ordinance or Regulation or any of its
provision, the matter can be referenced for opinion of HC.
 3 conditions:
i. There should arise any question of law.
ii. Court should have reasonable doubt on such question of law.
iii. Court should express its own opinion on the matter.
 The Court may refer the matter on its own motion, or on application of the parties as
well.
 Review – section 114, Order 47 Rule 1. Review is done by the court which is deciding
the case. It is a judicial re-examination of the case in certain specified circumstances:
i. Discovery of new facts.
ii. Mistake of fact or law or error apparent on the face of the report.
iii. Any sufficient ground – any substantial issue or cause of action has not been
decided by the court.
 Review entails reconsidering or revisiting own judgment and survey of own past actions
by the court.
 Even though it is not a new trial, it can be considered as new as a new cause of action is
brought by way of a new petition.
 Revision – section 115. It is aimed to grant relief against improper exercise or non-
exercise of jurisdiction by lower court or defect in the grant of relief. Grounds for
revision. Conditions:
i. No appeal should lie.
ii. Subordinate court exercises jurisdiction not vested in it by law.
iii. Failed to exercise a jurisdiction so vested.
iv. Acted in exercise of its jurisdiction illegally or with material irregularity.
 Difference between irregularity and – one is exceeding the jurisdiction, and another is
court didn’t have any jurisdiction at all. Irregularity is a procedural irregularity i.e., an
error which can be removed. Revision is not for irregularity or illegality as it can be
removed. Revision is only for when court has no jurisdiction.
 Important conditions for revision – there has to be miscarriage of justice, and injury done
to parties to the suit.
 3 grounds:
i. Order made by subordinate court was not within jurisdiction.
ii. Case is one where court ought to have exercised jurisdiction but didn’t.
iii. While exercising jurisdiction, court hasn’t acted wisely with respect to material
facts.
 Draft of revision petition – petition will be addressed to the High Court. The date of
subordinate court judgment and what the judgment was has to be mentioned. Then the
errors in the judgment and grounds for revision are to be mentioned. At the end, prayer is
there.

DRAFTING IN CRIMINAL MATTERS

 Complaint/FIR is lodged.
 When an offence has been committed, the aggrieved goes to the police station and files
complaint. This is FIR.
 FIR has a corroborative value and it can be used for corroboration.
 FIR is for cognizable offence – police can arrest without warrant.
 While complaint is filed before the judicial magistrate, and it is for non-cognizable
offences.
 Section 154 of CRPC talks about FIR.
 As FIR can be used as a corroborative piece of evidence, the person has to know what is
written in the FIR.
 Proceeding – it is an instrument whereby the party injured obtains redress for wrongs
committed against him either in respect of his personal contract, his person or property.
 Criminal proceeding – it is a criminal inquiry or a trial before a court taken in name of
state which ends in either punishment or acquittal of the accused.
 Section 6, CRPC – talks about different classes of courts.
 Cases which include person under 18 years – section 27 of CRPC.
 Section 26 talks about powers of the criminal court.
 Cognizable offence is defined in section 2(c) of CRPC.
 Non-cognizable offence – it is defined in 2(n). It is for offences given under Schedule I
(which are not of a serious nature).
 Bailable offence – where bail can be claimed as a matter of right.
 Non-bailable offence – it doesn’t mean no bail, but the discretion is of the court.
 Summon case – order of the court to appear before it. Punishment is less than 3 years.
 Warrant – punishment is more than 3 years. This is for heinous offences.
 A warrant case relates to offences punishable by life imprisonment or death penalty.
 Section 2(x) of CrPC defines warrant cases – cases punishable by death, life
imprisonment or imprisonment for a term exceeding two years.
 Warrant case starts with filing of FIR or lodging of complaint with the magistrate.
 After FIR is lodged, investigation would be there. If complaint is registered with the
magistrate, he will order investigation by police after satisfying himself that matter is of
such a nature.
 Process of sending the matter to the sessions court after satisfying that offence is
punishable for more than 2 years is called committing the sessions court.
 Features of warrant case:
i. Charges must be mentioned in warrant case.
ii. It is mandatory for the person to appear personally.
iii. A warrant case cannot be converted into a summons case.
iv. Magistrate should ensure that provisions of section 207 of CrPC should be
complied with – supply of police report and other documents to the accused.
v. Stages of trial are under section 238-250 –
a. FIR.
b. Investigation.
 c. Charges are framed.
d. Section 241 – conviction on plea of guilty. When a person pleads guilty, judge
is duty bound to make him aware of the consequences.
e. Evidences by prosecution (examination in chief).
f. Statement of accused under section 313.
g. Defense evidence.
h. Judgment by the court.
 Summon cases are defined under section 2(w) – where an offence is punishable with
imprisonment of less than 2 years.
 Summon case can be converted into a warrant case when the magistrate has reason to
believe that offence can be more than 2 years.
 Features:
1. It may be converted into warrant case.
2. Person is not required to be present personally.
3. Person accused should be informed of charges orally. There is no need of framing
charges.
4. There is only one opportunity given to accused to undertake cross examination.
5. Stages are under 251-255:
a. Pre-trial – filing of case and investigation.
b. Charges are framed.
c. Conviction in plea of guilty.
d. Prosecution and defense.
e. Judgment.
 Summary trial – it needs to be disposed of in lesser time. Only one or two hearings need
to be given. They are reserved for smaller offences to reduce the burden on courts. Person
cannot be imprisoned for more than 3 months.
 Stages are given in section 260-265.
 Appeal, review, reference, revision are present in criminal matters also.
 Bail is also there is criminal law.
 Bail is not defined in CRPC, only bailable offence is defined.
 Section 436-439 talk about grant of bail, conditions for grant and anticipatory bail.
Section 438 is anticipatory bail and section 439 is discretion of the court.
 In Black’s law dictionary, bail is defined as delivery or bailment of a person to his
sureties upon their giving (together with himself) sufficient security for his appearance,
he being supposed to continue in their friendly custody instead of going through gowl.
 Tomsman law dictionary, bail is used for freeing or setting at liberty of one arrested or
imprisoned upon any action either civil or criminal, surety taken for his appearance at
certain day and place.
 It is called bail because the party restrained is delivered into the hands of those that bind
themselves for his forthcoming in order to a safekeeping or protection from prison. The
end of bail is to satisfy the condemnation and cost or render the defendant to prison.
 Bail is written in the form of an application, written by the advocate of the accused and
addressed to the magistrate. It has to be mentioned what kind of offence it is. If it is
bailable offence, bail can be claimed as a matter of right. And if non-bailable, then it is
discretion of the court.
 Types of bail:
1. Anticipatory bail – under section 438. It is a pre-arrest bail that can be granted by
sessions court or High Court.
2. Regular bail – under section 436. It is granted after the arrest of a person when the
arrest is for a bailable offence. The explanation states that if a person is unable to give
bail within 1 week of arrest, the court may lawfully presume that that the person is
indigent.
3. Section 437 – accused is arrest of a non-bailable offence without warrant. Arrest
without warrant is provided under section 41.
4. Interim bail – inserted by section 437A. In Lal Kamlendra Pratap Singh v. State of
UP, interim bail may be granted pending. In Anish Kumar case, 2014, Court has
stated that police have to be very clear about the warrant and the justification on the
ground of arrest without warrant. In 2017, Rukmani Mahato v. State of Jharkhand, SC
discussed the problem of misuse of interim bail provision,
 5. Default bail – it is filed when the chargesheet is not filed or when the investigation
remains incomplete. It is with respect to undertrial prisoners. Landmark case for
undertrial prisoners is Sunil Batra case.
6. Bail to convicts – after conviction, convict can appeal. So during the appeal period,
he can ask for bail. This application is made to the court to which appeal is preferred.
 Bail application points:
1. The name of the magistrate or court under which the bail application is filed. The
section which is applied is to be mentioned. (In the Court of Metropolitan Magistrate,
etc.)
2. The name of parties.
3. The FIR number should be mentioned.
4. Name of the police station in which the accused is in custody.
5. The date on which accused was taken on custody.
6. The grounds on which accused should be granted bail. (ex- facts are not true)
7. Surety of the accused.
8. Presence of the accused before the court whenever the court requires. This should be
mentioned in the application that accused would be present.
9. The person would not leave the country without the permission of the court.
10. Prayer.
 Anticipatory bail:
1. Sessions or district court.
2. Name of parties.
3. FIR number.
4. Section number and police station name.
5. Police have falsely implicated the person. Since the FIR is bogus, there is no
requirement for investigation procedure.
6. Person is a good law-abiding citizen and respectable in the society.
7. Ensure that person would not induce any witness or tamper with any evidence or
indulge in any such practice directly or indirectly.
8. They will not leave the country and be present when the court wants.
9. The court below has wrongly dismissed the application for anticipatory bail.
APPEALS

 There are appealable and non-appealable orders.

 In non-appealable orders, there is discretion of the court lies.
 When the lower court’s decision is being checked by the High Court – any substantial
question of law not addressed by lower court.
 Appeal means transfer of cases from inferior to higher court or tribunal in the hope of
revising or modifying the decision of the lower court.
 Appeal is a complaint to a superior court of an injustice done or error committed by an
inferior court whose judgment or decision the court above is called upon to correct or
reverse.
 Sometimes it is a statutory right and sometimes it is discretion of the court.
 Chapter 29, section 372-394 deal with appeals.
 Section 373, 374, 377, 378, 379 and 380 – these provide for appeal in certain cases.
 Section 237(7), 250(6), 341(b), 351(1), 449 – these give the right to appeal in special
cases.
 Section 375 and 376 – where no appeal lies. Under section 376, for petty offences, no
appeal lies. There is proviso to section 376, where appeal lies in case of petty offences.
 In section 375, when a person pleas guilty and the decision is based on that. In such case,
no appeal lies.
 Section 374 talks about forum.
 If conviction by metropolitan magistrate, then appeal to sessions court.
 If conviction by first class magistrate, appeal to sessions court.
 If conviction by sessions judge, appeal to high court.
 If conviction by High Court (original jurisdiction), then appeal to division bench. But if
conviction by High Court under extraordinary original jurisdiction, then appeal to
Supreme Court.
 Section 374(2), 377, 373, 358 – appeal to HC.
 Abatement of appeal – when either of the parties dies, the appeal fails.
 Types of appeal – under CPC, there are first appeals (appeal from original decree), and
second appeal (appeal from appellate decree). Under CRPC, appeal from conviction and
 appeal from acquittal. Thus, 3 types – appeal from orders, appeal from conviction and
appeal from acquittal.
 Limitation period of appeal – article 114 and 115 of Limitation Act.
 Draft – name of court, name of parties, section, and the reason for appeal.

CONVEYANCING

 Over any property, a person has ownership, possession and enjoyment rights. The person
has the option to transfer any single one of these rights or all of these rights.
 In drafting conveyancing or any instrument, three things are important – law, effect and
language.
 In law, whether the person has the right over the property he is transferring is also
relevant. What is the capacity of the person holding the property is relevant.
 Language has to be very clear in the sense that it has to be clearly stated what rights are
being transferred.
 Effect – what would be the effect of the drafted document is important i.e., whether the
transferee would get absolute, limited or conditional right over the property.
 Conveyance is defined as the transfer of title from one person or class of persons to
another.
 Conveyance includes any assignment, appointment, lease or settlement made by deed on
a sale, mortgage, remise or settlement of any land, or appointment of new trustee in
respect thereof, which has been executed by one or more parties (consent of all parties
having right over property should be taken) by whom any interest in such land is thereby
conveyed. It is an act of voluntarily transferring property from one person to another by
means of a written instrument such as mortgage deed, lease deed, charge, vesting
instrument, or any such instrument except will (since it is not between two living
persons).
 Section 2(10) of Stamp Act – conveyance includes conveyance on sale every instrument:
1. By which property, whether movable or immovable, is transferred inter vivos, and
2. Which is not specifically provided by Schedule I.
 Thus, both movable and immovable property is included in conveyance.
 Essentials of a conveyance deed:
1. Name of the parties between whom the transfer is taking place.
2. Nature of the transfer – mortgage, lease, etc.
3. Description of the property.
4. Date of execution.
5. Parties to the deed.
6. Recital – legal terms.
7. Habendum.
8. Covenants.
9. Operative words.
10. Parcels.
11. Exceptions and reservations, if any, in relation to the property.
12. Testamonium – signature of transferor and transferee i.e., parties executing the deed.
13. Testatum – signature of the witness. This is to ensure there is free consent, and that
the execution of document and signatures are genuine.
14. Stamp.
 Fundamental rules of drafting:
1. Law has to be mentioned – under which law transferor got the rights over the
property, and under which law he is transferring the property. He has to support the
facts with laws.
2. Conveyance deed can only be drafted between persons eligible to enter into contract.