WORKSHOP ON BASICS OF DRAFTING
A. WHAT DOES “DRAFTING” IN LAW EXACTLY MEANS?
Drafting is a subjective concept which has not been defined
or coded anywhere in law. One cannot define and
circumscribe the concept of drafting in law. Drafting in law
means and includes everything presented before the Court in
writing, be it a Suit/Plaint or written statement, rejoinders,
evidence, applications – interim or miscellaneous. Each and
everything presented before the Court is an outcome of
drafting.
An application seeking pre-ponement or post-ponement of
date, application seeking copy of Court order, application
seeking inspection of judicial file, every such minor
miscellaneous applications are also drafting. An application
filed before the High Court seeking adjournment is also a part
of drafting as means and included in law. Therefore, one
cannot restrict or limit the concept of drafting to the drafting
of specific documents/set of documents or pleadings.
B. ESSENTIAL ELEMENTS OF DRAFTING:
Conceiving idea before writing;
Clarity of thoughts – reflection of same in draft;
Use of appropriate, meaningful and unambiguous words;
Use of material facts – essential for adjudication of dispute;
Use of short and meaningful sentences instead of large and
complicated sentences;
Use of only necessary punctuations and/or conjunctions –
wherever possible frame separate sentences;
Use of headings and breaking contents into paragraphs and
sub-paragraphs; [Ref CMM]
Presentation of facts in sequential manner wherever possible
date-wise one after another;
“Meaning thereby” when clarification or repetition required;
Knowledge of legal/ statutory mandatory
requirements to be included in proposed drafting of
document. [e.g. plaint, written statement, writs, PIL
etc.]
C. PLEADINGS [O. VI, CPC]
RULE 1: PLAINT OR WRITTEN STATEMENT: The
plaintiff’s pleading is plaint wherein set of claims/reliefs are
sought by elucidating the facts, cause of action and necessary
particulars. The defendant’s pleading is the written statement
wherein defences are set out by the defendant dealing with
each and every material fact alleged by the Plaintiff and deals
with new facts, if necessary. Written statement without denial
of specific material fact is deemed as admission of such fact
and such admission may invite judgement under admission
under Order XII Rule 6 CPC. However, judgement on
admission may also be against Plaintiff if particular fact is
admitted either in Plaint or reply to counter-claim or set-off.
RULE 2: FUNDAMENTALS OF PLEADING: MATERIAL
FACT AND NOT EVIDENCE:
a. Plead facts not law: law to be applied by the Court;
b. Facts to be material facts i.e. facts on which plaintiff’s
cause of action or defendant’s defence is based and
which can be proved accordingly. Three exceptions-
Condition Precedent (R6), Presumptions, matters of
inducement;
c. No evidence in pleading i.e. facta probanda and facta
probantia;
d. Concise pleading – divided into paragraphs,
numbered, each allegation in separate para, dates,
sums and numbers in figure as well as in words;
GENERAL RULES OF PLEADING
RULE 4: FRAUD, MISREPRESENTATION, BREACH OF
TRUST, WILFUL DEFAULT, UNDUE INFLUENCE:
Specified to narrow down the issue for adjudication; [REF
WS]
RULE 7: DEPARTURE – no new facts to be pleaded
inconsistent with the facts already pleaded in previous
pleadings, except by amendment under rule 17;
RULE 14: PLEADINGS TO BE SIGNED; fixing
responsibility upon the party;
RULE 15: VERIFICATION OF PLEADINGS – verification
of pleadings upon knowledge or upon legal advice or upon
information received and believed to be true specifying
paragraphs with date and place.
D. HOW TO IMPROVE DRAFTING SKILLS?
Drafting is an art which can only be improved with continuous
writing and drafting different set of legal documents.
However, there are certain factors, as below, which can act as
the catalyst in the learning process of skilled drafting:
a. Analytical thought process of impact of writing or not-
writing any content in the drafting;
b. Always read the law first on the issue which is
to be drafted;
c. Read some landmark judgment or commentary on
such issue;
d. Proof-reading your own draft is the key;
e. Read the draft as if you have to present it before the
Court and defend all your contents;
f. Read again as if you are the judge who knows
nothing about the dispute;
g. Read again from the point of opposite side – whether
any of the content in your draft is against You and/or
favoring the opposite side;
h. Never believe in cut-copy-paste. Even if you copy
always read the contents word by word;
E. DRAFTING OF CERTAIN BASIC MISCELLNEOUS
APPLICATIONS:
a. Application for inspection of Court-file;
b. Application seeking waiver of cost;
c. Application for placing on record additional documents;
d. Application for furnishing fresh address of the parties;
e. Application seeking adjournment;
f. Application seeking transfer of case;
g. Application seeking pre-ponement/post-ponement of date;
h. Application for uncertified copy of order;
i. Application seeking withdrawal of suit;
j. Interim Application seeking stay/injunction;
- Written and Compiled by
SAGAR S. JAISWAL
(Advocate & Partner)
Prudens Globus Legal Solution
+91-8010164371
