What is plain language?

PLAINTS
O8 - Written Statements
Verification and affidavit
Execution Application
Memorandum of appeal
Review - S 114, O 47
Revision
Summary Suits (Summons)
Commercial Disputes - O13A
Notice to the Govt. - S 80 CPC
Interlocutory Applications and Orders
CAT Application
Consumer Complaint
Petition under MV Act
Divorce Petitions
Writ petitions
PILs
Matrimonial Drafts - 125 crpc
Criminal Complaints
Dishonour of Cheques
BAIL - 18/4/24
Criminal Miscellaneous Petitions - 482 - 23/4/24
Revision and appeals- 24.4.24
29/4/24 - Conveyancing
Sale deed
LEASES
Legal notice - 6/5/24
Power of Attorney 7 May 24
Testamentary Succession - will - 8/5/24
Sumit Pushkarna Lecture - 9/5/24
Mortgages - Special Lecture
Promissory Note
Cross examination
14/5/24 - TAKE CLIENT COUNSELLING NOTES
Client Counseling (SP) 14 May 2024
15/5/24
Trust Deed - Pushkarna - 16/5/24

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Take notes from the 1st few classes.
ABCD of Writing
i. Accuracy [Precision]
ii. Brevity [Succinct/Short]
iii. Clarity
iv. Discernment

QUESTIONS? LEGAL ANALYSIS?

•What legal issue (question) or issues are raised by the factual event,
•What law governs the legal issue,
•How the law that governs the legal issue applies to the factual event,
•What, if any, legal remedy is available

IRAC
PRELIMINARY SCRUTINY BEFORE IRAC:
1. All the facts and information relevant to the case should be gathered.
2. Preliminary legal research should be conducted to gain a basic familiarity with the area of law
involved in the case.

1. ISSUE
• The issue is the precise question raised by the specific facts of the client’s case.
• A properly stated issue requires inclusion of the key facts.
• ILLUSTRATION:
• Under the provisions of IPC, grievous hurt is committed by an individual, present at the scene
of a grievous hurt, who encourages others to commit the hurt but does not actively participate in
the actual hurting of the victim?
• Introduce Characters
• Explain their standing [Pedigree, etc.]
• Sequence of Events

Solutions?

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1.Feedback
2.Plain Language
3.Revision
4.Precision and Clarity of thought

RULE
•The determination of which law governs the issue is based on the applicability of the law to the
facts of the case.

6/2/24
See PPT on General Guidelines/Advice on Drafting
—-
Plain Language -
1. Avoiding latin maxims, archaic terminology.

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 2. Simplified language sans legalese or jargon
3. Depends on who the audience is - tailored accordingly
4. Conservatism in common law however may require you to use some jargon due to
notions in judges/peers to demonstrate competence. But even here, it is important to
centre plain/simple language. This is because it prevents access of public to the law, is
more efficient, and aids in clearly communicating arguments.
5. Legalese in itself should not be seen as Precedent. Precedent flows outside the use of
particular phrases etc.

4 fundamental principles of Pleadings -

1. Must state the facts and not law - ‘A car was gifted from X to Y’ is still legally loaded,
given the implications of ‘Gift’. In this situation the facts need to be mentioned - was it
under undue influence, the details, whether it satisfies the requirements of a gift etc.
hence all the relevant facts making out the legal issue must be charted out.
a. Exceptions where law ought to be pleaded alongside facts -

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 i. Foreign Laws (S 56/57 evidence act) because Indian Courts don't take
judicial notice - and hence the foreign law is a question of fact to be
proved before Indian Courts.
ii. Where there is a mixed question of law and fact - ie. whether the court was
closed ion the last day of limitation.
iii. S 80 CPC - 2 months notice in a suit against the government. Here the
legal requirement is a condition precedent for filing the plaint and is
therefore to be mentioned in the pleadings.
iv. Where there is a custom/trade usage in a Commercial dispute, despite it
being law it is to be mentioned, because the forum mightn’t be aware of it.
v. Where the claims are of negligence, unlawful acts etc, the plaint must
mention how the facts made out constitute the given offence.
2. Must state all Material and ‘Material Facts’ Only
a. What is a material fact - those essential to a plaintiff’s COA or a defendant’s
defence are material.
Similar to S 101 of Evidence Act - (Whoever desires any Court to give judgment
as to any legal right or liability dependent on the existence of facts which he
asserts, must prove that those facts exist. When a person is bound to prove the
existence of any fact, it is said that the burden of proof lies on that person.
Illustration
(a) A desires a Court to give judgment that B shall be punished for a crime which
A says B has committed. A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the
possession of B, by reason of facts which he asserts, and which B denies, to be
true. A must prove the existence of those facts.)
b. Hence, when a material fact is not asserted by a party, that party is likely to lose
the given case.
c. A fact is material if it is something a party is bound to prove at a Trial. Order 8
Rule 4 - Doctrine of Non Travers. This is unless the said fact has been admitted
by the other party.

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 d. If there is doubt whether a fact is material - it is good practice to include it in the
draft, otherwise you won't be able to lead evidence to support it at a later stage.
This is essential when you make/intend to make alternate pleas, where including
these would then allow you to lead evidence wrt them.
e. Material facts - such preliminary facts that must be proved by a party to
establish a particular COA. A COA can be understood as a bundle of facts.
Hence a COA is a set of pleas that are being taken against certain parties.
f. Therefore Material facts are those that help you prove your plea.
g. Certain disputations/impitations, if not made, may lead you to lose a suit, if those
pertain to material facts This is of particular importance wrt documents. You don't
need to reproduce the document in total, but reference to the document must be
made.
h. Exceptions to material facts -

i.

3. Only the Facts on which a pleading relies and NOT EVIDENCE by which said facts
are to be proved

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a. factum probans (pl.facta probantia) is a fact offered in evidence as proof of
another fact, and a factum probandum (pl.facta probanda) is a fact that needs to be
proved.

b.
c. The facta probanda are the facts you need to prove in order to make your case.
The facta probantia are the facts which help to prove the facta probanda. For
example, the Employer’s failure to make payment in terms of the contract would
be facta probanda. A letter from the Employer stating that it does not have
sufficient funds to make that payment is facta probantia.
d. IMPORTANTLY, in pleadings you ONLY mention the Facta Probanda and
NOT the Facta Probantia/probans. This is seen in O6 R2 of the CPC.
i. 2. Pleading to state material facts and not evidence -
(1) Every pleading shall contain, and contain only, a statement in a
concise form of the material facts on which the party pleading relies for
his claim or defence, as the case may be, but not the evidence by which
they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs,
numbered consecutively, each allegation being, so far as is convenient,
contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures
as well as in words
e. When a certain mental state is being imputed, you ought to elaborate on how
the said mental state came to be. This is seen in O6 R4 of the CPC -
i. 4. Particulars to be given where necessary -
In all cases in which the party pleading relies on any misrepresentation,
fraud, breach of trust, wilful default, or undue influence, and in all other
cases in which particulars may be necessary beyond such as are

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 exemplified in the forms aforesaid, particulars (with dates and items if
necessary) shall be stated in the pleading.
f. O6 R4 therefore gives you a little leeway to include factum probantia within the
draft. Here discretion is given to the lawyers to include cases - in all other cases
in which particulars may be necessary beyond such as are exemplified in the
forms aforesaid. This is important to do given that oftentimes judges on the bench
change, a lot of time passes etc.
g. Importantly, especially when mental state is involved, it is alright to go a little bit
into factum probans/probantia. However note that this is tempered by O6 R10 -
i. O6 R10 - 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.
ii.
h. General, BOLD and GENERAL allegations are to be avoided in Pleadings. Eg.
Defendant is a Habitual Cheater etc. Note here, Evidence of bad character can be
given only to deny certain imputations of good character that have been made.
i. Hence it is prudent to be clear of the how, when, manner etc.
i. How do you differentiate between Factum Probans and Particulars - To do this
you need to understand the Core Purposes of Pleadings -
i. Achieve consensus on what are the Issues/True Disagreements to be
decided
ii. Give Definiteness to your stance in court, hence reducing delays
iii. No Surprises in Court
iv. Effectively present/produce an Issue on Law/Fact. Here note that you
can introduce factual issues that are not legal per se, but are relevant to the
Law, however the relevance to the law ought to be established.
v. Allow the court to draw Reasonable Inferences wrt Abstract Propositions
or Facts Pleaded - Give Clarity/Direction to the court

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 vi. Clarify Abstract Propositions. Here it is important to not leave your
pleadings vague, which may give judges certain leeway to take an adverse
reading of an issue you are pleading.
j. O6 R10 -

k. O6 R11 -
Wherever it is material to allege notice to any person of any fact, mater 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.
i. Note - Form of notice is material when a particular form is a condition
precedent to that notice. See S 138 NI Act. Here also where without such
circumstances being mentioned your plea is going to fail, it is pertinent to
mention the form/precise terms of such notice.
4. State facts Concisely, but with Precision and Certainty
a. Abbreviated as CPC
b. Concise - Brief, but with some amount of context.
c. See O6 R7 - Conciseness is required to comply with this - No party is permitted
to travel beyond its pleading -
i. 7. Departure.- No pleading shall, except by way of amendment, raise any
new ground of claim or contain any allegation of fact inconsistent with the
previous pleadings of the party pleading the same.
d. Also see O6 R14A – No changes in factual description allowed without
amendment of pleadings
e. Don't use pronouns
f. O6 R2, O8 R7-9 - Separate paras for separate claims
g. Specificity in denials - O6 R8, O8 R3-5
h. SEE PPT

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 i. Alternative pleas are not barred under the CPC
j. No implications unless specifically set out - O7 R5, 7, 8 - When you plead that
you did not execute a PN, subsequently you also need to plead that signatures on
it were forged. The court will not imply the latter from simply pleading the
former, the implication needs to be specifically set out.

7/2/24
Continued on Top.

8/2/24
Continued on Top

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12/2/24
Case Management

1. Setting timelines
2. Pre trial mechanisms - filtering cases to see if cases are fit for the courts

Reading 1 - CASE MANAGEMENT AND ITS ADVANTAGE By Justice M. Jagannadha Rao

“Evidence suggests that an effective litigation management and cost- and-delay-reduction

programme should incorporate several interrelated principles – including –

(A) the differential treatment of cases that provides for individualised and specific management
according to their needs, complexity, duration and probable litigation careers;
(B) early involvement of a judicial officer in planning the progress of a case, controlling the
discovery process, and scheduling hearings, trials and other litigation events;
(C) regular communication between a judicial officer and attorneys during the pre-trial
process.”

(See Manual for Litigation Management and Cost and Delay Reduction, Federal Judicial
Centre, 1992, Washington DC)

the Federal Judicial Centre, Washington D.C. has referred to the ‘active role’ of the Judge:

“to anticipate problems before they arise rather than waiting passively for matters to be
presented by counsel. Because the attorneys may be immersed in the details of the case,
innovation and creativity in formulating any litigation plan may frequently depend on the
court.”

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The courts’ substantive role consists of the ‘Judge’s involvement’ not merely limited to
procedural matters but refers to his becoming familiar, at an early stage, with the substantive
issues in order to make informal rulings on issues, dispositions, and narrowing, and on related
matters such as scheduling, bifurcation and consideration and discovery control’. The Judge
periodically ‘monitors’ the progress of the litigation to see that schedules are being followed
and to consider necessary modifications in the litigation plan. The Judge may call for interim
reports
between scheduled conferences. But, at the same time, time-limits and the controls and
requirements are not imposed arbitrarily or without considering the views of counsel, and are
subject to revision when warranted by the circumstances. Once having established a
programme,
however, the Judge expects schedules to be met and when necessary impose appropriate
sanctions for dereliction and dilatory tactics (Manual of Complex Litigation, 3rd, 1994, Federal
Judicial Centre, Washington D.C., quoted in Lord Woolf’s Interim Report, Chapter 5, para 20).

In Canada, according to the Ministry of Attorney General Ontario, Canada, 1993 as quoted in
Lord Woolf’s Interim Report, Chapter 5, Para 18, it is stated as follows:

“Case management is a comprehensive system of management of time and events in a law-suit

as it proceeds through the justice system, from initiation to resolution. The two essential
components of case-management system are the setting of a time table for pre- determined
events and suspension of the progress of the law-suit through its time-table”.

In Australia, Prof. Sallman of the Australian Institute of Judicial Administration (quoted in Lord
Woolf’s interim report, Chapter 5, para 9) stated as follows:

“The Revolution has involved a dramatic shift from a laissez faire approach in conducting
court-business to an acceptance by courts of the philosophical principle that it is their
responsibility to take interest in cases from a much earlier stage in the process and manage them
through a series of milestones to check-posts. Most courts have now acted upon this philosophy
and introduced a variety of schemes, the common denominator of which is substantially

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increased court supervision and, in some instances, control ... The essence of it is the adoption
by courts of a systematic, managerial approach to dealing with case loads.”

Note that sir questions the sovereignty and authority of independent tribunals/arbitrators as
adjudicatory bodies over courts.

The government being party in numerous cases - note that cases are filed indiscriminately
without evaluating whether the suit/appeal is required.

Reading 2 - CASE MANAGEMENT AND ADR FOR BANKING SECTOR

3.1 Sound Economy presupposes a sound Financial Sector, of which banking is a very vital
component. The major threat, which is presently questioning the very edifice of Banking, is the
threat of non-performing assets. If this trend is allowed to continue unchecked (fortunately not
so due to the recent active intervention of Indian Government and Regulators), the Banking
sector will be affected immediately, which through a cascading effect, will ultimately lead to
further reduction in budgetary support for the Judiciary. This, in turn, will push the caseload
backlog from a bad to worse situation.

3.2 POSITION OF NON-PERFORMING ASSETS

The gross non-performing assets (NPAs) of Scheduled Commercial Banks (SCBs) stood at
Rs.70,904 crore as on March 31, 2002 as compared with Rs.63,741 crore at the end of the
previous year. The gross NPAs for end-March 2002 includes an amount of Rs. 4,512 crore on
account of merger. During the same period, net NPAs increased by 9.5 per cent to Rs.35,546
crore from Rs.32,461 crore at end-March 2001.

3.4 BACKLOG BEFORE DEBT RECOVERY TRIBUNALS

a) Cases pending before the Debt Recovery Tribunals
Parliament has established specialized tribunals called ‘Debt Recovery Tribunals’ (shortly
called DRTs) under the “Recovery Debts due to Banks and Financial……

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As per Deshpande Committee Report, the Presiding Officer of DRT should have not more than
30 cases on board on any given date and there should not be more than 800 cases pending
before it at any given point of time. However, at present, each DRT has at least a few thousand
cases at any given point of time. The highest number of cases so far have been filed at Chennai
DRT-I with 5,076 followed by Bangalore with 5,049, Ahemedabad 4,047 and Hyderabad 3,933
cases. Further, under Sections 17 and 18 of Securitisation & Reconstruction of Financial Assets
& Enforcement Act, 2002, (shortly called SARFAESI Act, 2002) DRTs and DRATs have been
made as appellate forums. This aspect will also increase the caseload of DRTs and DRATs
besides DRT being the eventual forum for enforcing personal covenants of
borrowers/guarantors by Banks and Financial Institutions even in cases where the provisions of
SARFAESI Act, 2002 have
been enforced. Other problems such as inadequate infrastructure, lack of manpower etc also
afflict DRTs as is the case with other regular Courts.

Thus, though DRTs and DRATs have certainly speeded up the process of recovery, yet they
have fallen short of expected level particularly in the Banking/Financial Sector where time is
money.

As discussed supra, banks do file suits/applications for recovery of their money as a last resort.
In Financial Sector time is money. Therefore, the longer the time taken for disposal of cases, the
more will be the harm to Banks immediately and the Society imediately. After protracted
litigation, even if the banks succeed in the cases filed by them, they may face two dangers: 1. The
more the time taken for disposal of cases, less will be the chance of recovery due to asset
stripping/dissipation by borrowers/guarantors/time etc and 2. Opportunity costs working against
the bank due to the inordinate delay. Therefore, it is all the more necessary to have a system of
Case Management and ADR customized to the needs of Banks/Financial Institutions, which is
both effective and time-bound.

Here the reading suggests banks enter into arbitration contracts with clients rather than
approaching the court. It is suggested that law officers of the banks work as arbitrators.

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However this proposition is problematic because it questions the impartiality of the arbitrator.

Why is this important?

You need to know for whom/which forum you are drafting for the draft to be effective. Hence
knowing of these alternate forms of adjudication, their needs etc are important to be aware of.

13/2/24

What is plain language?

Language that can be understood by someone not trained in law.

While difficult legal words are important to use as their meaning is settled through precedent, i t
must be used where the context requires it - ie. where Legal Incidences are involved.

However we must keep in mind that plain language should be used as much as possible.

See book ‘Modern Legal Drafting’ for reference.

He has examples of complex - plain language in PPT. Dekhlo.

Drafting Plainly -
● Don't use long sentences, be liberal with full stops. Especially when you are
summarising a case.
● Don't use vague words - creates uncertainty in the legal document
● Make sure it's legible and transparent
● Be specific in your denials, otherwise admissions would be imputed on you
● Don't cross reference statutes

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Duty incumbent on officers to issue awards in a plain and simple language, else liable to be
struck down.
Then what is plain and simple language - clear, precise, easy to understand, effective
communication. Avoids jargon, unnecessary technical expression and complex language. Not
only about words, but enable expression of ideas. Does not mean sacrifice of precision.

What to avoid -
1. Wordiness - Redundancy
2. Many ‘shalls’ - as it takes away discretion from the judges
3. Obscure words. Unusual word orders - active sentences are good, passive are mid
4. Words with contentious meanings
5. Unduly long sentences
6. legalese/jargon

PLAINTS
5 parts of a plaint -
● Heading and title
● Body
● Prayer
● Signing and Verification (due to Salem Adv Bar Assn, later CPC Amendment - because
people used to later retract saying lol i didnt file it)
● Affidavit (O19 - legal incidence binding by way of Affidavit)

See example of Plaint in PPT

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Heading/Title
You write -
● ‘Plaint’
● Which Court
● Suit No.

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 ● Name of Parties (with their relation to another person so identifiable)

Body of the Plaints

1. Introductory para
2. Paras building upon the basic facts that are relevant to the COA
Material facts - direct incidence to the relief sought
3. Jurisdictional Facts - Why is this forum appropriate - Pecuniary, Territorial and Subject
matter
4. Statement wrt Limitation - Need to mention how it is within limitation as limitation is a
mixed question of law and fact. You do this as a precaution.

Prayer/Relief
There can be multiple prayers.
Thumb rule - each and every prayer in a separate paragraph.
Quintessential clause - Any other relief which the court deems fit. This is basically a residuary
prayer.

Signing and Verification

Need to mug up what's written in the verification. See PPT.

Note - For Minors/Persons with unsound mind - separate statement wrt their title, ie. who they
are being represented by in the given suit. See PPT. O32 R1, R3 - Separate statement needed for
next friends/guardians. This statement is in the cause title and when you are introducing the
parties.

Affidavit

14/2/24
Why do we need to draft a plaint in a particular manner?
See O7

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Rule 1. Particulars to be contained in plaint

The plaint shall contain the following particulars:

(a) the name of the Court in which the suit is brought;

(b) 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;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so
allowed or relinquished; and
(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of
court fees, so far as the case admits.

2. In money suits
Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount
claimed:

3. Where the subject-matter of the suit is immovable property

Where the subject-matter of the suit is immovable property, the plaint shall contain a
description of the property sufficient to identify it, and, in case such property can be identified
by boundaries or numbers in a record of settlement or survey, the plaint shall specify such
boundaries or numbers.

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How do you identify an immovable property? Address with pincode + Who has title/possession
+ how that person got title/possession ie. Sale Deed (with registry details) or Gift deed etc +
Properties North South East West of said property

Property can also be identified by geotags, registry numbers etc

5. Defendant's interest and liability to be shown

The plaint shall show that the defendant is or claims to be interested in subject-matter, and that
he is liable to be called upon to answer the plaintiffs demand.

It is to be shown that the parties in question are Proper Parties wrt a given lis. Particularly the
plaint needs to show X defendant is related to the lis and is hence the proper party to the suit.

6. Grounds of exemption from limitation law

Where the suit is instituted after the expiration of the period prescribed by the law of limitation,
the plaint shall show the ground upon which exemption from such law is claimed :
Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on
any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in
the plaint.

Moving on -
Coloquillay - 2 parts in a plaint - See PPT.
1. Formal part - with all the technical aspects - COA, description of parties, Jurisdiction,
favours affecting jurisdiction, Limitation etc
2. Substantial Part - Need skill in drafting this + strategy. How subject matter is relevant etc.

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Note that there are certain facts that are within the personal beliefs of the plaintiff, while on the
other hand there are other facts on jurisdiction, limitation etc, the former type of facts are
generally at the END of the plaint, while the ‘formal parts’ of the plaint tend to be at the start.

APART FROM what is mentioned in the CPC - Look at HC Rules for what all is
required/guideliens wrt filing a aplaint.

DHC Rules 1966 - Chapter 3 -

https://upload.indiacode.nic.in/showfile?
actid=AC_CEN_3_3_00016_196626_1517807324274&type=notification&filename=DHC
%20Act%201966%20Notification.pdf

PH HC - Chapter 1 Part C -
https://highcourtchd.gov.in/sub_pages/left_menu/Rules_orders/high_court_rules/vol1/
chap1partCV1.pdf

1. Examination of plaints/petitions/applications etc:- On the presentation or receipt of a

plaint, the Court should examine it with special reference to the following points, viz:-
(i) Whether the plaint contains the particulars specified in Order VII, Rule 1, and conforms to
the other rules of pleadings in Orders VI and VII and rules made by the High Court thereunder;
(ii) Whether there is, prima facie, any non-joinder or mis-joinder of parties, or mis-joinder of
causes of action;
(iii) whether any of the parties to the suit are minors and, if so, whether they are properly
represented as laid down in Chapter 1- M (d) of this volume;
(iv) whether the plaint is duly signed and verified;
(v) whether the suit is within the jurisdiction of the Court or must be returned for presentation to
proper Court (Order VII, Rule 10 );
(vi) whether the plaint is liable to be rejected for any of the reasons given in Order VII, Rule 11;
(vii) whether the documents attached to the plaint (if any) are accompanied by lists in the
prescribed form and are in order;

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(viii) whether the plaintiff has filed a proceeding containing his address for service during the
litigation as required by Rule 19 of Order VII as framed by the High Court.
(ix) In money suits, whether the plaintiff has stated the precise amount the claims;
(x) Whether the plaintiff has stated in his plaint regarding the documents on which he relies his
claim and are not in his possession and a statement in whose possession or power they are;
(Under the Commercial Courts Act there isa requirement of Separate Indexing - S No, List of
Document, With who is the document, In what form is it, How did that person get possession etc
- to escape issues wrt loss of documents - this list is required under the Commercial Courts Act
for both Plaintiffs and Defendants)
(xi) Whether the plaintiff has filed the address of the party in the prescribed form.

EXHIBITS WITH A PLAINT - O7 R14 CPC -

14. Production of document on which plaintiff sues or relies

(1) Where a plaintiff sues upon a document or relies upon document in his possession or
power in support of his claim, he shall enter such document in a list, and shall produce it in
court when the plaint is presented by him and shall, at the same time deliver the document and a
copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall,
wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the plaintiff when the plaint is
presented, or to be entered in the list to be added or annexed to the plaint but is not produced or
entered accordingly, shall not, without the leave of the Court, be received in evidence on his
behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to document produced for the cross examination of the
plaintiffs witnesses, or, handed over to a witness merely to refresh his memory.]

15/2/24
Distinction between necessary and proper parties. - https://main.sci.gov.in/jonew/judis/12476.pdf

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A necessary party is one without whom no order can be made effectively. A proper party is one
in whose absence an effective order can be made but whose presence is necessary for a
complete and final decision on the question involved in the proceeding.

Twin test for necessary party -

1. Party required to pass an effective decree
2. Some relief against such a party must be claimed in the proceeding in question.
Hence the necessary party is required for the survival of the plaint in question. Hence the
nonjoinder of a necessary party is an incurable defect per the CPC.

See O1 R9 and Proviso -

9. Misjoinder and nonjoinder
No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may
in every suit deal with the matter in controversy so far as regards the rights and interests of the
parties actually before it:

Provided that nothing in this rule shall apply to nonjoinder of a necessary party.

Also see O7 R11 (d) - Rejection of Plaint

11. Rejection of plaint
The plaint shall be rejected in the following cases:
(d) where the suit appears from the statement in the plaint to be barred by any law;

Hence, Without adducing a necessary party you cannot get any relief. On the other hand
without a proper party you can get relief, but with the proper party you will get more
effective relief.

Distinction between Nonjoinder and Misjoinder of parties -

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First see O1, R1 - R3

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.

2. Power of Court to Order separate trial.

Where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of
the suit, the Court may put the plaintiffs to their election or Order separate trials or make such
other Order as may be expedient.

3. Who may be joined as defendants.

All persons may be joined in one suit as defendants where-

26
(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.

Also See O1 R9, R10 (which allows addition of parties in a suit at basically any point) and R13,
and the Proviso to S. 99 -

9. Misjoinder and nonjoinder

No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may
in every suit deal with the matter in controversy so far as regards the rights and interests of the
parties actually before it:
1[Provided that nothing in this rule shall apply to nonjoinder of a necessary party.]

13. Objections as to non-joinder or misjoinder.

All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest
possible opportunity and, in all cases where issues are settled, at or before such settlement,
unless the ground of objection has subsequently arisen, and any such objection not so taken
shall be deemed to have been waived

What is the earliest opportunity - either the Written Statement or Rejoinder accordingly. .
In case someone subsequently takes the argument that X is not to be added as a party, they are
stopped from addition in appeal.

Section 99. No decree to be reversed or modified for error or irregularity not affecting merits
or jurisdiction.
No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal
on account of any misjoinder 1 [or non-joinder] of parties or causes of action or any error,

27
defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the
jurisdiction of the Court

Provided that nothing in this section shall apply to non-joinder of a necessary party.

19/2/24
Misjoinder -
1. When mistakenly X party added
2. Court shouldnt dismiss suit, order shouldn't bind wrongly added party, no relief ought to
be sought against misjoined party.

Non Joinder -
1. When necessary party Y not added
2. If a necessary party is not added, it is possible to dismiss the suit. Not possible to pass
effective decree where non joinder of necessary party.

How to frame issues persuasively in a plaint/rejoinder (according to Bryan Garner)-

1. Put it upfront - one of the first sentences
2. Break up sentences - premise, premise, question form.
3. Enough facts to be added so that the problem could be understood. Neednt weave in
minute intricate details unless such details are material facts. Hence weaving in enough
facts depends on the prayer.

O8 - Written Statements

1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him

(1) Where the defendant bases his defence upon a document or relies upon any document in his
possession or power, in support of his defence or claim for set off or counter claim, he shall

28
enter such document in a list, and shall produce it in court when the written statement is
presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed
with the written statement.

(2) Where any such document is not in possession or power of the defendant, he shall, wherever
possible, state in whose possession or power it is.

2(3) A document which ought to be produced in Court by the defendant under this rule, but, is
not so produced shall not, without the leave of the Court, be received in evidence on his behalf at
the hearing of the suit.].

(4) Nothing in this rule shall apply to documents

(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory.]

Hence unless a document is exhibited and made part of the evidence, it cannot be sued for
cross and cannot be looked at by the court in its decision.

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.

This has significant impacts on the WS. this is why a WS specifically sets out why a suit is not
maintainable etc.
Your grounds of defence must be put in your WS.

R3 - 5 - Doctrine of Non Travers and Specific Travers

29
3. Denial to be specific

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.

3A. Denial by the defendant in suits before the Commercial Division of the High Court or the
Commercial Court.—
(1) Denial shall be in the manner provided in sub-rules (2), (3), (4) and (5) of this Rule.
(2) The defendant in his written statement shall state which of the allegations in the particulars
of plaint he denies, which allegations he is unable to admit or deny, but which he requires the
plaintiff to prove, and which allegations he admits.
(3) Where the defendant denies an allegation of fact in a plaint, he must state his reasons for
doing so and if he intends to put forward a different version of events from that given by the
plaintiff, he must state his own version.
(4) If the defendant disputes the jurisdiction of the Court he must state the reasons for doing so,
and if he is able, give his own statement as to which Court ought to have jurisdiction.
(5) If the defendant disputes the plaintiff’s valuation of the suit, he must state his reasons for
doing so, and if he is able, give his own statement of the value of the suit.
The above is basically to save the time of the court - the defendant is to state that the
burden of proof is not on them. Here you state when you deny something that the burden
of proof is on who.

4. Evasive denial.

Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but
answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it
shall not be sufficient to deny that he received that particular amount, but he must deny that he
received that sum or any part thereof, or else set out how much he received. And if an allegation

30
is made with diverse circumstances, it shall not be sufficient to deny it along with those
circumstances.

5. Specific denial.

(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication,
or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted
except as against a person under disability :

Provided that the Court may in it discretion require any fact so admitted to be proved otherwise
than by such admission.

(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce
judgment on the basis of the facts contained in the plaint, except as against a person under a
disability, but the Court may, in its discretion, require any such fact to be proved.

(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court
shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in
accordance with such judgment and such decree shall bear the date on which the judgment was
pronounced.

R5 flows directly from R3 and R4, it's the effect of the above rules.

6. Particulars of set-off to be given in written statement.—

(1) Where in a suit for the recovery of money the defendant claims to set-off against the
plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff,
not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same
character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but

31
not afterwards unless permitted by the Court, presents a written statement containing the
particulars of the debt sought to be set-off.
(2) Effect of set-off.—The written statement shall have the same effect as a plaint in a cross-suit
so as to enable the court to pronounce a final judgment in respect both of the original claim and
of the set-off:
but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs
payable to him under the decree.
(3) The rules relating to a written statement by a defendant apply to a written statement in
answer to a claim of set-off.

Note - set offs need to be stated in the WS - must exist on the date of Plaint.

7. Defence or set-off founded upon separate grounds.—

Where the defendant relies upon several distinct grounds of defence or set-off [or counter-claim]
founded upon separate and distinct facts, they shall be stated, as far as may be, separately and
distinctly.

8. New ground of defence.—

Any ground of defence which has arisen after the institution of the suit or the presentation of
a written statement claiming a set-off 1 [or counter-claim] may be raised by the defendant or
plaintiff, as the case may be, in his written statement.

Note - unsure where a setoff may arise after the institution of the suit. Perhaps where the set off
arises between the date of the plaint and the WS.

9. Subsequent pleadings.—
No pleading subsequent to the written statement of a defendant other than by way of defence to
set-off or counter-claim shall be presented except by the leave of the Court and upon such
terms as the Court thinks fit; but the Court may at any time require a written statement or
additional written statement from any of the parties and fix a time of not more than thirty days
for presenting the same.

32
10. Procedure when party fails to present written statement called for by Court.—
Where any party from whom a written statement is required under rule 1 or rule 9 fails to
present the same within the time permitted or fixed by the Court, as the case may be, the Court
shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit
and on the pronouncement of such judgment a decree shall be drawn up:
Provided further that no Court shall make an order to extend the time provided under Rule 1 of
this Order for filing of the written statement.

Note however shall in R10 has been interpreted as may in Balraj Taneja v. Sunil Madan SC
1998. Held - court to not act blindly merely because a WS has not been filed by a defendant -
must be cautious in proceeding, must check if even if facts set out in plaint are treated to be
admitted - court must be satisfied that no fact needs to be proved. But if the plaint indicates if
there are disputed questions of fact, the court cannot pass judgement without requiring the
plaintiff to prove such facts. Draws from S 101 of the evidence act - burden on plaintiff to prove
some allegations, would not shift to the defendant.

FORMAT OF WS
1. Title
2. Heading
3. Details of Parties (where the plaintiff has mis identified the defendants - wrongly spelled
names etc,
4. Preliminary Objections -
a. Starts by mentioning limitation
b. Jurisdiction
c. Improperly valued suit
d. No COA (Draws from O7 R11)
e. Bad for non jonder/Misjoinder
f. Res Judicata
g. Res Subjudice
h. Improperly Verified

33
 i. Improperly instituted
j. Barred by Specific Relief Act
5. Reply on Merits -
a. To be done in a apra wise form
b. Before doing this, go through the entire plaint and identify the key arguments
forwarded + prayer forwarded by the plaintiff
c. Identify core legal claims and core factual claims
d. Find what claims are purely allegations, what is supported by documents and
what are to be proved by witnesses
e. Para 1 of the plaint is generally not disputed as it is about who the plaintiff is
etc
f. Denial stating ‘want of knowledge’ is not an acceptance nor is it a denial. It is
used when you don't have complete knowledge of the thing, but some knowledge.
In denying this you may have an adverse inference drawn against your case per
rules of evidence if its later proved.
g. Using names of parties at trial level is helpful for an appellate lawyer, given
the multiple LCRs/parallel proceedings with P1, P2, P3 and D1, D2 etc constantly
shifting.
h. Para 4 - denial as well as admission - you have to segregate these separately.
For denials you have to give reasons
i. Para 11 - jurisdictional facts - even if it is covered in the preliminary objections
it must be mentioned - para wise reply is required - you can still cross reference
the preliminary objection. From the perspective of the judge who will deliver the
judgement after many years or after multiple transfers, she must have a very clear
picture.
6. Prayer - Dismiss suit, award cost to defendant pass any just equitable order
7. Verification + Signatures
8. Affidavit

34
20/2/24
READ THE JUDGEMENT SENT - imp

Section 26 CPC - Institution of Suits

Institution of suits

(1) Every suit shall be instituted by the presentation of a plaint or in such other manner as may
be prescribed.
(2) In every plaint, facts shall be proved by affidavit.]
Provided that such an affidavit shall be in the form and manner as prescribed under Order VI
of Rule 15A.

Order 8 also uses similar language wrt written statement - affidavit must be adduced - presume
that you need to prepare an affidavit if you are asked to make a written statement/plaint in
the exam

Verification and affidavit

Rule 15, Order 6 - Verification of pleadings - Rule 15: Verification of pleadings.—

(1) Save as otherwise provided by any law for the time being in force, every pleading shall be
verified at the foot by the party or by one of the parties pleading or by some other person
proved to the satisfaction of the Court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the
pleading, what he verifies of his own knowledge and what he verifies upon information received
and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which
and the place at which it was signed.

(4) The person verifying the pleading shall also furnish an affidavit in support of his
pleadings.

Pleadings also require an affidavit

35
Affidavits are also called statements of truth

36
Rule 15A - verification of pleadings in a commercial dispute - all affidavits are to be covered
by the form mentioned in the appendix - not just affidavits in commercial disputes

Verification of pleadings in a commercial dispute.— (1) Notwithstanding anything contained in

Rule 15, every pleading in a commercial dispute shall be verified by an affidavit in the manner
and form prescribed in the Appendix to this Schedule.

(2) An affidavit under sub-rule (1) above shall be signed by the party or by one of the parties to
the proceedings, or by any other person on behalf of such party or parties who is proved to the
satisfaction of the Court to be acquainted with the facts of the case and who is duly authorised
by such party or parties.

(3) Where a pleading is amended, the amendments must be verified in the form and manner
referred to in sub-rule (1) unless the Court orders otherwise.

(4) Where a pleading is not verified in the manner provided under sub-rule (1), the party shall
not be permitted to rely on such pleading as evidence or any of the matters set out therein.

(5) The Court may strike out a pleading which is not verified by a Statement of Truth, namely,
the affidavit set out in the Appendix to this Schedule.]

Also look at S 139 cpc -

139. Oath on affidavit by whom to be administered.—

In the case of any affidavit under this Code—
(a) any Court or Magistrate, or

37
(aa) any notary appointed under the Notaries Act, 1952 (53 of 1952); or]
(b) any officer or other person whom a High Court may appoint in this behalf, or
(c) any officer appointed by any other Court which the State Government has generally or
specially empowered in this behalf, may administer the oath to the deponent.

Analogous to S 85 of the Evidence Act. -

85. Presumption as to powers-of-attorney. –– The Court shall presume that every document
purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a
Notary Public, or any Court, Judge, Magistrate, 1[Indian] Consul or Vice-Consul, or
representative 2*** of the 3[Central Government], was so executed and authenticated.

Here there is a presumption in favor of a power of attorney. This has been interpreted to apply to
affidavits as well.

Also see S 68 of Evidence Act - .

68. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used as evidence until one
attesting witness at least has been called for the purpose of proving its execution, if there be an
attesting witness alive, and subject to the process of the Court and capable of giving evidence:
3[Provided that it shall not be necessary to call an attesting witness in proof of the execution of
any document, not being a will, which has been registered in accordance with the provisions of
the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it
purports to have been executed is specifically denied.]

See Sample Affidavit

- Competence
- Conversant with facts

38
 - Repeats what's in the verification
- No false information
- Documents shared - to avoid further amendment and avoid taking other party by surprise
- X number of pages in the pleading
- Sign and verification

Affidavits as Evidence - see O19 R6. Also in O6 R15A produced above.

21/2/24

Execution Application
Execution in civil proceedings

Difference between an Order and Decree - the decree is simply the operational part of an order.

Separate execution proceedings are essential because there may be situations where a decree has
been gotten through fraud etc. Hence without these separate proceedings, these fraudulent
decrees may be enforced. But the executing court cannot go behind the merits of the decree.
However, having this gap allows a person to go to the Appellate court against such a fraudulent
decree prior to the fact of such execution. If ipso facto executable, this time to approach an
Appellate court and get a stay would not be available. Therefore separate execution proceedings
are important.

Also sometimes the court drawing judgement only determine rights and may not enter into the
functional/operational bits - eg. what exact portions of the land are to be divided to who etc.
These are addressed during execution proceedings by the court implementing the decree.

39
Also where there are multiple properties located in different jurisdictions, for limited execution
purposes the decree may be transferred from the court issuing the decree to the court in which a
part of the land in issue has jurisdiction.

Also where there are preliminary and final decrees, to prevent execution of a prelim decree
where a latter overriding final decree exists points to the importance of a separate execution
proceedings.

1. Execution not defined in CPC

a. Implementation of decree
b. Initiated when an execution application is filed before the court giving
decree/before the court where the decree has been transferred. Per S 37 and 38 of
the CPC.
c. When can you initiate execution? When judgement attains finality (appeal
period expired under limitation act) and no stay granted by an appellate/revisional
court.
2. Limitation to file for execution- 12 years generally
3. O 21 cpc speaks of execution -
a. Application
b. Stay
c. Mode
d. Sale of property for execution etc.
4. Factors affecting execution -

40
 a. S 47, 48 CPC - Executing court will not go behind the merits of the decree, but
can read the judgement and decree together to understand the true meaning. In an
apparent conflict between the two, the executing court has the power to send the
decree back to the court that delivered the judgement/decree for clarifications.
b. Jurisdictional issues - unless you can prove you have been prejudiced by lack of
jurisdiction, the executing court will not go into the question of jurisdiction.
Prejudice here refers to situations where due to lack of jurisdiction of the
particular court, certain direct implications were there on the judgement/decree.
5. Who may file execution application -
a. Decree holder (DH)
b. LR of the DH
c. Representative of the DH
d. Notice must be given by the decree holder to the other part before filing an
application.
e. One or more of the joint decree holders, provided -
i. No conditions to the contrary in the decree (ie. all need to apply
simultaneously for execution)
ii. Application must be for execution for whole decree - no part execution
allowed
iii. Application for the benefit for all joint decree holders (essentially allows
free riding)
f. Any other person with special interest - with leave of court - can apply
6. Execution against whom -
a. Judgement debtor
b. LR of JD
c. Sureties of judgement debtors
7. Note that Res Judicata applies to execution applications that have been dismissed on
merits (but not on technical grounds). Here you file review/appeal.

41
8. Modes of execution -
a. Delivery of property
b. Attachment and sale of property
c. Sale without attachment
d. Arrest and Detention of Judgment Debtor
e. Appointing receiver (where say minor is the decree holder)
f. Effecting partition
g. Any such manner that is required
9. O21 r11 - contents of an execution application -
a. V IMP Look at CPC

b.
10. O21 r12 - Application for attachment of movable property not in judgment-debtor’s -
Where an application is made for the attachment of any movable property belonging to a
judgment-debtor but not in his possession, the decree-holder shall annex to the
application an inventory of the property to be attached, containing a reasonably
accurate description of the same.
11. See o21 r11A
12. See o21 r14
13. See Form 6 of Appendix E- Form of an execution application. However it has been held
that if the application is not in this form, this defect will not defeat the execution
application. Form 6 has the necessary details, however the order of the details is not
really important. Further don't draw the table in the exam - these are just different
heads to be catered to. Mention all the details per the rules for executing the decere.

42
14. Admission of an Execution Application - o21 r17 - if requirements complied with, then
must be admitted
15. O21 R105, 106 -
105. Hearing of application.—(1) The Court, before which an application under any of
the foregoing rules of this Order is pending, may fix a day for the hearing of the
application.
(2) Where on the day fixed or on any other day to which the hearing may be adjourned
the applicant does not appear when the case is called on for hearing, the Court may
make an order that the application be dismissed.
(3) Where the applicant appears and the opposite party to whom the notice has been
issued by the Court does not appear, the Court may hear the application ex parte and
pass such order as it thinks fit.

Explanation.—An application referred to in sub-rule (1) includes a claim or objection

made under rule 58.

106. Setting aside orders passed ex parte, etc.

43
SEE ppt for exec petition

22/2/24

Memorandum of appeal

O41-47 - Appeals, Review and Revision.

1. Appeal as a matter of right can only be created by the legislature. Court cannot allow an
appeal where it is not allowed by the legislator. Therefore no inherent vested right wrt
appeal.
2. Note difference (IMP) - Appeal (judicial examination of a decision by a higher court
from that of a lower court) v. Memorandum of appeal (document that contains the
grounds of appeal).
3. Contains a Formal and a Substantive Part
4. Appeal Defined - removal of a cause from an inferior court to a superior court to test the
soundness of the decision of the inferior court. This defines what you mean by ‘judicial
examination’.
5. O41 -
a. R11 -
11. Power to dismiss appeal without sending notice to Lower Court.—

44
 (1) The appellate Court after fixing a day for hearing the appellant or his pleader
and hearing him accordingly if he appears on that day may dismiss the appeal.
(2) If on the day fixed or any other day to which the hearing may be adjourned
the appellant does not appear when the appeal is called on for hearing, the Court
may make an order that the appeal be dismissed.
(3) The dismissal of an appeal under this rule shall be notified to the Court from
whose decree the appeal is preferred.
(4) Where an Appellate Court, not being the High Court, dismisses an appeal
under sub-rule (1), it shall deliver a judgment, recording.

Generally notice is sent to the LC so that it does not go ahead with execution. R11
is an exception to this where an appeal may be rejected even without sending this
notice. Here notice is given to the LC post such dismissal.

In 2002 R11A was added -

11A. Time within which hearing under rule 11 should be concluded.—
Every appeal shall be hear under rule 11 as expeditiously as possible and
endeavour shall be made to conclude such hearing within sixty days from the
date on which the memorandum of appeal is filed.

b. R1 -
1. Form of appeal What to accompany memorandum.—
(1) Every appeal shall be preferred in the form of a memorandum signed by the
appellant or his pleader and presented to the Court or to such officer as it
appoints in this behalf. The memorandum shall be accompanied by a copy of the
Judgment.
Provided that where two or more suits have been tried together and a common
judgment has been delivered therefor and two or more appeals are filed against
any decree covered by that judgment, whether by the same appellant or by
different appellants, the Appellate Court may dispense with the filing of more
than one copy of the judgment.

45
 This is similar to the form of a plaint.

(2) Contents of memorandum.—The memorandum shall set forth, concisely and

under distinct heads, the grounds of objection to the decree appealed from
without any argument or narrative; and such grounds shall be numbered
consecutively.

Grounds include - procedural, jurisdictional errors, apparent errors of law,

misapplication of law/facts, erroneous evidentiary rulings etc.
What is apparent error of law - that which does not require explanation/arguments
for it to be identified.

(3) Where the appeal is against a decree for payment of money, the appellant
shall, within such time as the Appellate Court may allow, deposit the amount
disputed in the appeal or furnish such security in respect thereof as the Court
may think fit.
This is subject to O37.
c. R2 -
2. Grounds which may be taken in appeal.—
The appellant shall not, except by leave of the Court, urge or be heard in support
of any ground of objection not set forth in the memorandum of appeal; but the
Appellate Court, in deciding the appeal, shall not be confined to the grounds of
objections set forth in the memorandum of appeal or taken by leave of the
Court under this rule:

Provided that the Court shall not rest its decision on any other ground unless the
party who may be affected thereby has had a sufficient opportunity of contesting
the case on that ground

d. R3 - similar to O7 R10,11
3. Rejection or amendment of memorandum.—

46
 (1) Where the memorandum of appeal is not drawn up in the manner
hereinbefore prescribed, it may be rejected, or be returned to the appellant for
the purpose of being amended within a time to be fixed by the Court or be
amended then and there.
(2) Where the Court rejects any memorandum, it shall record the reasons for
such rejection.
(3) Where a memorandum of appeal is amended, the judge, or such officer as he
appoints in this behalf, shall sign or initial the amendment.

e. R4 -
4. One of several plaintiffs or defendants may obtain reversal of whole decree
where it proceeds on ground common to all.—
Where there are more plaintiffs or more defendants than one in a suit, and the
decree appealed from proceeds on any ground common to all the plaintiffs or to
all the defendants, any one of the plaintiffs or of the defendants may appeal from
the whole decree, and thereupon the Appellate Court may reverse or vary the
decree in favour of all the plaintiffs or defendants, as the case may be.

f. R12 - court to fix a date for hearing appeal. Similar to O14 for suits.
12. Day for hearing appeal.—
(1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a
day for hearing the appeal.
(2) Such day shall be fixed with reference to the current business of the Court.

g. R22 - Cross Objections

h. Powers of Appellate Court - S 107 CPC -
107. Powers of Appellate Court.—
(1) Subject to such conditions and limitations as may be prescribed, an Appellate
Court shall have power—
(a) to determine a case finally;
(b) to remand a case;

47
 (c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and
shall perform as nearly as may be the same duties as are conferred and imposed
by this Code on Courts of original jurisdiction in respect of suits instituted
therein.

What is determine - adjudication of all issues raised. While TC can determine,

the appellate court can determine it FINALLY, unless of course there's a
provision for second appeal.
Remand - send back to LC. Why? If the LC has not looked into some issues. The
LC will be bound to look into these issues.
Framing of issues - power of the appellate court is same as that of the YTC under
O14. Here the appellate court can frame the issues all over again. Can then
remand it back to the LC or directly decide it.
Fresh evidence - governed by O41 R27.

i. O43 - Appealable Orders - IMP - ie. against which orders can an appeal be filed
j. Checklist for filing appeals
i. Check if appeal lies
ii. Carefully study impugned order and find the grounds
iii. No frivolous appeal - ie. an appeal having no legal basis
iv. Appeal only the particular order, and not all other related ore
v. Check if passed wit jurisdiction
vi. Check if passed within limitation
k. National litigation policy - grounds on which an appeal may be filed - guidelines
for filing appeals. SEE PPT.

48
 i. Appeals in revenue matters - guidelines - SEE PPT

ii. Appeals to not be filed in SC unless - SEE PPT

49
 iii. Efficient litigant and Responsible litigant - Definition - SEE PPT
iv. Limitation - boilerplate limitation applications should be avoided.
l. Scd 1 A 116 Limitation Act - Limitation for appeals - SEE PPT

m. Grounds of appeal -
i. Must highlight nature of dispute - simple concise brief manner
ii. Shouldn't be in an argumentative/narrative manner - shouldn't unnecessary
find fault with the impugned judgement

50
In appeal
1. Court with jurisdiction is important
2. Facts can be mentioned
3. Details of the Interim Application - what is the pleading in the IA

a. Note - only prepare an affidavit for the 1st draft.

For subsequent drafts, if there are no material
changes in the factual situations, you do not

51
 need to raft another. Just say the1 same as
above. But you need to draft an affidavit again
for a different factual matrix
4. Details of appeals before the appellate court filed by the respondents if any.
5. Questions you need to ask while drafting memorandum of appeal -
a. If original order is filed
b. Whether ready to file written statements
c. Etc. SEE PPT

52
53
54
55
56
 6. See 041 R 22 -
a. Cross objections may be filed on your behalf even if you’re respondents.

Review - S 114, O 47
114. Review.—Subject as aforesaid, any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Code, but from which no
appeal
has been preferred.
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes,
may apply for a review of judgment to the Court which passed the decree or made the order, and
the Court may make such order thereon as it thinks fit.

Per O41 R3 -
No difference between memo of Review and Memo of appeal.
Review is done by the same court - in case any glaring errors, errors on the face of it etc. or there
was fraud played on the court

57
It is a new look on the case.

A review SHOULD NOT BE an appeal in disguise. So what are the differences between Appeal
and Review -
1. Appeal - you can go into merits etc
2. Scope of an appeal is broader from a review
3. Can review that which cannot be appealed as well, or where appeal is available but has
not been preferred. Here sometimes, while one party goes in review, the other goes in
appeal. Here the appellate court will see that if a review application is pending, it will
check if the grounds are the same. If they are, they will stay either.

Doctrine of functus officio - exceptions

O20 R3. 152 and 114

Curative petitions are basically a second review.

O47 R1 -
1. Application for review of judgment.—
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no
appeal has been Preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the exercise
of due diligence was not within his knowledge or could not be produced by him at the time when
the decree was passed or order made, or on account of some mistake or error apparent on the
face of the record or for any other sufficient reason, desires to obtain a review of the decree
passed or order made against him, may apply for a review of judgment to the Court which
passed the decree or made the order.

58
(any other sufficient reason has been abused - to make reviews take the colour of appeal)

(2) A party who is not appealing from a decree or order may apply for a review of
judgment notwithstanding the pendency of an appeal by some other party except where the
ground of such appeal is common to the applicant and the appellant, or when, being respondent,
he can present to the Appellate Court the case on which he applied for the review.

Explanation. —The fact that the decision on a question of law on which the judgment of the
Court is based has been reversed or modified by the subsequent decision of a superior Court in
any other case, shall not be a ground for the review of such judgment.

O47R3
3. Form of applications for review.—The provisions as to the form of preferring appeals shall
apply, mutatis mutandis, to applications for review.

Where review is rejected - no further appeal. However if a review application is accepted, this
acceptance then becomes an appealable order.

4. Application where rejected.—

(1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject
the application.
(2) Application where granted.—Where the Court is of opinion that the application for review
should be granted, it shall grant the same:
Provided that—
(a) no such application shall be granted without previous notice to the opposite party, to
enable him to appear and be heard in support of the decree or order, a review of which is
applied for; and
(b) no such application shall be granted on the ground of discovery of new matter or
evidence which the applicant alleges was not within his knowledge, or could not be adduced by
him when the decree or order was passed or made, without strict proof of such allegation.

59
6. Application where rejected.—
(1) Where the application for a review is heard by more than one Judge and the Court is equally
divided, the application shall be rejected.
(2) Where there is a majority, the decision shall be according to the opinion of the majority.

7. Order of rejection not appealable. Objections to order granting application.—

(1) An order of the Court rejecting the application shall not be appealable; but an order
granting an application may be objected to at once by an appeal from the order granting the
application or in an appeal from the decree or order finally passed or made in the suit.
(2) Where the application has been rejected in consequence of the failure of the applicant to
appear, he may apply for an order to have the rejected application restored to the file, and,
where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause
from appearing which such application was called on for hearing, the Court shall order it to be
restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a
day for hearing the same.
(3) No order shall be made under sub-rule (2) unless notice of the application has been served
on the opposite party.

9. Bar of certain application.—

No application to review an order made on an application for a review or a decree or order
passed or made on a review shall be entertained.

O47 R9 - general rule that only 1 review, ie. no review of a review order. But there are Curative
Petitions.

MOVING ON

60
Revision

115. Revision.—
(1) The High Court may call for the record of any case which has been decided by
any Court subordinate to such High Court and in which no appeal lies thereto, and if such
subordinate Court appears—
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this section, vary or reverse any order made, or
any order deciding an issue, in the course of a suit or other proceeding, except where the order,
if it had been made in favour of the party applying for revision would have finally disposed of
the suit or other proceedings.

(Hence Interim Orders are not challengeable under Revision)

(2) The High Court shall not, under this section, vary or reverse any decree or order against
which an appeal lies either to the High Court or to any Court subordinate thereto.

(If order is appealable/an alternate remedy is available, then a revision does not lie)

(3) A revision shall not operate as a stay of suit or other proceeding before the Court except
where such suit or other proceeding is stayed by the High Court.

Explanation.—In this section, the expression “any case which has been decided” includes any
order made, or any order deciding an issue in the course of a suit or other proceeding.

61
Format of Revision Appn -
1. Details of parties
2. U section 115
3. Against order xyz
4. See PPT -
5. Show that some aspect of the case has been finally disposed of
6. This should be challenged on jurisdiction
7. You can frame the application using the language of judgement without explicitly citing
it. Looks better to the court as jurisdictional questions are difficult to argue.

28/2/24
MOVING ON

Summary Suits (Summons)

Mechalec Engineering - Findings on Summary Suits

Imp - for quick recovery of liquidated sums of money.

Drafting summary suits - like ordinary suits per cpc, but with certain additional requirements.
See O37 R7.

Order 37
1. Courts and classes of suits to which the Order is to apply.—

62
(1) This Order shall apply to the following Courts, namely:—
(2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits,
Namely:—

2. Institution of summary suits.—

(1) A suit, to which this Order applies, may if the plaintiff desires to proceed hereunder, be
instituted by presenting a plaint which shall contain,—
(a) a specific averment to the effect that the suit is filed under this Order;
(b) that no relief, which does not fall within the ambit of this rule, has been claimed in
the plaint; And
(c) the following inscription, immediately below the number of the suit in the title of the
suit, namely :—
“(Under Order XXXVII of the Code of Civil Procedure, 1908).”

(2) The summons of the suit shall be in Form No. 4 in Appendix B or in such other Form as
may, from time to time, be prescribed.
(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an
appearance and in default of his entering an appearance the allegations in the plaint shall be
deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding
the sum mentioned in the summons, together with interest at the rate specified, if any, up to the
date of the decree and such sum for costs as may be determined by the High Court from time to
time by rules made in that behalf and such decree may be executed forthwith.

63
3. Procedure for the appearance of defendant—
(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under
rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may,
at any time within ten days of such service, enter an appearance either in person or by pleader
and, in either case, he shall file in Court an address for service of notices on him.
(2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to
be
served on the defendant, shall be deemed to have been duly served on him if they are left at the
address given by him for such service.
(3) On the day of entering the appearance, notice of such appearance shall be given by the
defendant to the plaintiff’s pleader, or, if the plaintiff sues in person, to the plaintiff himself,
either by notice delivered at or sent by a pre-paid letter directed to the address of the plaintiff's
pleader or of the plaintiff, as the case may be.
(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a
summons for judgment in Form No. 4A in Appendix B or such other Form as may be
prescribed from time to time, returnable not less than ten days from the date of service supported

64
by an affidavit verifying the cause of action and the amount claimed and stating that in his belief
there is no defence to the suit.
(5) The defendant may, at any time within ten days from the service of such summons for
judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle
him to defend, apply on such summons for leave to defend such suit, and leave to defend may be
granted to him unconditionally or upon such terms as may appear to the Court or Judge to be
just:
Provided that leave to defend shall not be refused unless the Court is satisfied that the facts
disclosed by the defendant do not indicate that he has a substantial defence to raise or that the
defence intended to be put up by the defendant is frivolous or vexatious:
Provided further that, where a part of the amount claimed by the plaintiff is admitted by the
defendant to be due from him, leave to defend the suit shall not be granted unless the amount so
admitted to be due is deposited by the defendant in Court.

(Note that this is done on AFFIDAVIT as the WS is itself disputed here)

(6) At the hearing of such summons for judgment,—

65
 (a) if the defendant has not applied for leave to defend, or if such application has been
made and is refused, the plaintiff shall be entitled to judgment forthwith; or
(b) if the defendant is permitted to defend as to the whole or any part of the claim, the
Court or Judge may direct him to give such security and within such time as may be fixed by the
Court or Judge and that, on failure to give such security within the time specified by the Court
or Judge or to carry out such other directions as may have been given by the Court or Judge, the
plaintiff shall be entitled to
judgment forthwith.
(7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the
defendant in entering an appearance or in applying for leave to defend the suit.

Summary judgement by commercial courts is also seen in O13A, but note that it is fairly
different.
Note that the document in original must be submitted to the court under R5 to ensure no
multiplicity of proceedings.

7. Procedure in suits.—Save as provided by this Order, the procedure in suits hereunder shall
be the same as the procedure in suits instituted in the ordinary manner.

DOCTRINE OF TRIABLE ISSUE -

What are triable issues -
1. When there are disputed facts/law - that require EVIDENCE (here requirement of
evidence to discharge a burden makes an issue a triable issue)

See Kiranmoyee Dasi v. J Chatterjee 1949 - From where the doctrine of triable issue comes. See
PPT - A triable issue arises the moment you are able to show that -
"(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the
plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional
leave to defend.

66
(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable
defence although not a positively good defence the plaintiff is not entitled to sign judgment and
the defendant is entitled to unconditional leave to defend.

(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that
is to say, although the affidavit does not positively and immediately make it clear that he had a
defence, yet, shews such a state of facts as leads to the inference that at the trial of the action he
may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment
and the defendant is entitled to leave to defend but in such a case the Court may in its discretion
impose conditions as to the time or mode of trial but not as to payment into Court or furnishing
security.

(d) If the defendant has no defence or the defence set up is illusory or sham or practically
moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is
not entitled to leave to defend.

(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine
then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect
the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or
otherwise secured and give leave to the defendant on such condition, and thereby show mercy to
the defendant by enabling him to try to prove a defence."

Note that the defence you are seeking must be directly related to the claim of the plaintiff

Plus in a summary suit - CANT CLUB MULTIPLE ISSUES - must be LTD to the
liquidated sum of money. Hence other grievances unrelated to O37 cannot be brought up.
Note that for related matters brought up after a summary suit, res judicata will not apply.

MOVING ON

67
Commercial Disputes - O13A
Note that while the idea is taken from O37, O13A works independent of O37.

2. Stage for application for summary judgment.—An applicant may apply for summary
judgement at any time after summons has been served on the defendant:
Provided that, no application for summary judgment may be made by such applicant after the
Court has framed the issues in respect of the suit.

3. Grounds for summary judgment.—The Court may give a summary judgment against a
plaintiff or defendant on a claim if it considers that––
(a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no
real prospect of successfully defending the claim, as the case may be; and
(b) there is no other compelling reason why the claim should not be disposed of before recording
of oral evidence.

NOTE S17 - Data wrt Commercial Courts shall be maintained

Note S 2(c) - Defines commercial disputes - types of disputes that are classified as commercial
disputes.

SEE PPT FOR ALL THE ABOVE

29/2/24
Summary suits -

68
 1. Inducement
2. COA (facts and law)
3. Liquidated amt
4. Interest (pendente lite and rate)
5. Limitation
6. Jurisdiction
7. Averment

Commercial courts Act -

See the CCA - To see all the amendments made to the cpc in lieu of the cca.

For example, Certain specific sections of the CPC inapplicable to the commercial courts act -
See o11 r7
7. Certain provisions of the Code of Civil Procedure, 1908 not to apply.—For avoidance of
doubt, it is hereby clarified that Order XIII Rule 1, Order VII Rule 14 and Order VIII Rule 1A of
the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to suits or applications before the
Commercial Divisions of High Court or Commercial Courts.”.

Note that pecuniary jurisdiction of the CC is 3L. Earlier it was 1 cr.

Further before instituting a case, pre institutional mediation proceedings
is required - See S12A. the award of this is to be treated as an arb award
and not a consent decree.

See PPT for the change in structure post CCA. there is an additional appellate division created
before the district judge.

8. Bar against revision application or petition against an interlocutory order.—

Notwithstanding

69
anything contained in any other law for the time being in force, no civil revision application or
petition shall be entertained against any interlocutory order of a Commercial Court,
including an order on the issue of jurisdiction, and any such challenge, subject to the provisions
of section 13, shall be raised only in an appeal against the decree of the Commercial Court.

Order 11 R1 after pleadings are filed additional documents may be filed within 30 days under
this rule

Index
There’ll be a master index which contains all the indexes for
what all has been filed under each section/issue.
See PPT for how the master index should look.

Index - with details of the documents are also very imp. Need to have details, how you got
power, possession, pages etc. SEE PPT

O11 R6 -
When electronic records are filed - need to write a specific statement. SEE PPT.

Note that aside from the above additional requirements, the plaint that you filed before the
commercial court has the same format. The primary distinction is additional indexing
requirements.
—------------

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71
72
73
MOVING ON

Notice to the Govt. - S 80 CPC

79. Suits by or against Government.—
In a suit by or against the Government, the authority to be named as plaintiff or defendant, as
the case may be, shall be—
(a) in the case of a suit by or against the Central Government, the Union of India, and
(b) in the case of a suit by or against a State Government, the State.

74
80. Notice.—
(1) Save as otherwise provided in sub-section (2), no suits shall be instituted against the
Government (including the Government of the State of Jammu and Kashmir)] or against a
public officer in respect of any act purporting to be done by such public officer in his official
capacity, until the expiration of two months next after notice in writing has been delivered to, or
left at the office of—
(a) in the case of a suit against the Central Government, except where it relates to
a railway a Secretary to that Government;
(b) in the case of a suit against the Central Government where it relates to
railway, the General Manager of that railway;
(bb) in the case of a suit against the Government of the State of Jammu and
Kashmir, the Chief Secretary to that Government or any other officer authorized by that
Government in this behalf;
(c) in the case of a suit against 1any other State Government, a Secretary to that
Government or the Collector of the district; and, in the case of a public officer, delivered
to him or left at his office,

stating the cause of action, the name, description and place of residence of the plaintiff
and the relief which he claims; and the plaint shall contain a statement that such
notice has been so delivered or left.

(2) A suit to obtain an urgent or immediate relief against the Government (including the
Government of the State of Jammu and Kashmir) or any public officer in respect of any act
purporting to be done by such public officer in his official capacity, may be instituted, with the
leave of the Court, without serving any notice as required by sub-section (1); but the Court shall
not grant relief in the suit, whether interim or otherwise, except after giving to the Government
or public officer, as the case may be, a reasonable opportunity of showing cause in respect of
the relief prayed for in the suit:

75
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or
immediate relief need be granted in the suit, return the plaint for presentation to it after
complying with the requirements of sub-section (1).

(3) No suit instituted against the Government or against a public officer in respect of any
act purporting to be done by such public officer in his official capacity shall be dismissed merely
by reason of any error or defect in the notice referred to in sub-section (1), if in such notice—
(a) the name, description and the residence of the plaintiff had been so given as to
enable the appropriate authority or the public officer to identify the person serving the
notice and such notice had been delivered or left at the office of the appropriate authority
specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been
substantially indicated.
(basically any errors that may be there are CURABLE errors)

WHY
The govt is an impersonal litigant + use of public money - hence the idea is that some time must
be given to decide the dispute at its own level without needing to approach the court.

3 law commission reports - 14, 27, 54 - on S 80. They discuss why the goct needs to be given
Notice and why the provision is relevant.

ESSENTIALS - S 80 application
● Name, description, residence
● COA
● Relief
● Delivery - with proof of delivery to the particular person mentioned under s 80
● Attachments (while optional - its industry practice - to send a copy of the plaint with the
notice)

SEE THE FORMAT OF NOTICE IN PPT - similar to a letter

76
- Always mention the advocates letterhead
- Write ABC, XYZ - with phone, email, etc
- Details of client - name, son/daughter of, residence address
- To whom it is being sent
- Subject
- Coa in para 1
- Detailed facts in a numbered format
- Documents being mentioned in the notice must be attached as an annexure
- Request a relief in the end within 2 months. This must be related to the coa -
commensurate. If multiple reliefs multiple COAs. No need to draft attachments, just
write - EXCEPT FOR AFFIDAVITS.
- Where unclear who is holding the proper authority, send it to multiple ones.
- Need to mention how you are serving at the top - registered courrier etc.

77
78
79
4/3/23

80
Interlocutory Applications and Orders
Any application - other than one for decree/order in an already instituted.

SC Website - List of possible IAs - 243 are listed.

See s 141 CPC -

141. Miscellaneous proceedings.—The procedure provided in this Code in regard to suits shall
be followed, as far as it can be made applicable, in all proceedings in any Court of civil
jurisdiction.
Explanation.— In this section, the expression “proceedings” includes proceedings under Order
IX, but does not include any proceedings under article 226 of the Constitution.

Difference from Interim - Interim is not a legal term per se. Interim means during the pendency
of something. Practically no difference between interim and interlocutory.
Impleadment Application - also called IA, allowed per SC rules.

See the Bichri Case.

1996 - Judgement by BP Jeevan Reddy. The SC came down heavily on the industry for
contaminating the water. Impost a remediation cost of 2& cr based on NEERI sreport. Review
and curative petitions were dismissed. Then they filed an Interlocutory Application. The court
came down heavily on this practice.

156. In the instant case, the applicants had adequate opportunity and were heard by the court at
length on number of occasions and only thereafter the writ petition was disposed of. The
applicants aggrieved by the said judgment filed a review petition. This review petition was also
dismissed. In the instant case even the curative petition has also been dismissed. The applicants
now want to reopen this case by filing these interlocutory applications.

81
157. The applicants certainly cannot be provided an entry by back door method and permit the
unsuccessful litigant to re- agitate and reargue their cases. The applicants have filed these
applications merely to avoid compliance of the order of the court. The applicants have been
successful in their endeavour and have not permitted the judgment delivered on 3.2.1996 to
acquire finality till date. It is strange that other respondents did not implement the final order of
this court without there being any order or direction of this court. These applications being
devoid of any merit deserve to be dismissed with heavy costs.

220. This Court has consistently taken the view that the judgments delivered by this Court while
exercising its jurisdiction under Article 136 of the Constitution cannot be reopened in a writ
petition filed under Article 32 of the Constitution. In view of this legal position, how can a final
judgment of this Court be reopened by merely filing interlocutory applications where all
possible legal remedies have been fully exhausted? When we revert to the facts of this case, it
becomes abundantly clear that this Court delivered final judgment in this case way back in 1996.
The said judgment has not been permitted to acquire finality because the respondent Nos. 4 to 8
had filed multiple interlocutory applications and has ensured non-compliance of the judgment of
this Court.

Temporary and Perpetual Injunctions

See S 37 of the Specific Relief Act

37. Temporary and perpetual injunctions.—

(1) Temporary injunctions are such as are to continue until a specified time, or until the
further order of the court, and they may be granted at any stage of a suit, and are
regulated by the Code of Civil Procedure, 1908 (5 of 1908).
(2) A perpetual injunction can only be granted by the decree made at the hearing and upon
the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of
a right, or from the commission of an act, which would be contrary to the rights of the
plaintiff.

82
Also see O39 R1 and 2
See essentials for Temporary injunctions u. CPC - See Gujarat Bottling Co v Coca Cola 1995
1. Prima facie case - parties should be able to raise a rebuttable presumption in the mind of
the court and in doing so discharging their burden.
2. Balance of convenience - weighing the benefit to the plaintiff and the public, against the
burden on the defendant. Basically whether the hardship the defendants would face in the
maintenance of the status quo is outweighed against the benefit the status quo would give
to the plaintiff and public.
3. Irreparable loss - in case the injunction is not granted. Irreparable is that which is not
liquidated, ie. cannot be compensated in terms of money. See burning the Mona Lisa.
basically value cannot be measured in money - no fixed pecuniary standards for
measurement.

All of the 3 are required to be shown to get a temporary injunction.

EXAMPLE -

83
84
Quia Timet Action
Writ in common law - where there is an immediate hardship.

See the cases in the PPT on how IAs are decided - in especially IPR Matters.

DRAFTING IAs
1. In the start - 1st para -
a. a paragraph justifying why are you filing IA
b. No need to repat facts at the outset, just reference the Original APplication
c. Give the status of the current party filing the application
d. Either party can file an IA
2. 2nd para -
a. Mention the cause of action - /state that the 3 requirements are met
3. 3rd para -
a. Won't file further claim wrt property etc
4. Reasons for IA - show how the 3 requirements are met

SEE PPT FOR EXAMPLE ON DRAFT.

Special lecture

85
SC procedure - regulated by SC Rules - not violation of A 50 as the SC/HC has the power to
regulate its own business, enact its rules etc.

A 136 - SLPs - v imp for SC practice.here the court uses its discretion to grant leave of appeal
from any other forum.

136. Special leave to appeal by the Supreme Court.

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

Criteria - substantial question of law of public importance - which would be binding precedent -
then the court will exercise its discretion per 136. Here use of discretion is not unfettered. What
is a substantial question of law - see s100 cpc.

Mon, Fri are Miscellaneous days - where the court hears fresh matters, and whether the court
should issue notice in those matters.
While issuing notice, may pass ad interim reliefs, and even pass ad interim ex parte reliefs (based
0n stuff like balance of convenience - ie. will waiting frustrate the subject matter/prayer - see
demolition matters). If leave is granted, then it is converted to a civil/criminal matter, post which
there isa final hearing.

Note that on Monday, Friday - 80% of matters no notice is issued.

If dismissed - then what remedy? Review under A 137.

86
Generally - doctrine of merger applies - SC order merges with HC. however where the SC has
not applied in mind in dismissing the matter, then the doctrine of merger will not apply, and
hence it can go under Review.

Post review, you can go by Curative Petition - Roopa Ahok Hurra.

Now 2013 SC rules has all of this codified.

Moving on - A 142
142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc
(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such
order as is necessary for doing complete justice in any cause or matter pending before it,
and any decree so passed or order so made shall be enforceable throughout the territory
of India in such manner as may be prescribed by or under any law made by Parliament
and, until provision in that behalf is so made, in such manner as the President may by
order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme
Court shall, as respects the whole of the territory of India, have all and every power to
make any order for the purpose of securing the attendance of any person, the discovery
or production of any documents, or the investigation or punishment of any contempt of
itself.

PIL
- U 32, 226
- Relaxed locus - but wil check what are your reasons for bringing the PIL
- Ensuring complete justice to you/persons similarly placed/persons for who you have
gotten the suit

A 141 - Bindingness of SC Orders

Benches in the SC -

87
In some cmatters - Single judge can hear - for interlocutory applications etc. Colloquially these
are called in “chambers”, as generally the DB is what sits in SC.

Transfer petitions - within the state HC has jurisdiction, while acriss states SC has jurisdiction.

Constitution benches - 5 Judges.

6/3/24

CAT Application
Drafting and Filing before the CAT

Governed under AT Act 1985 and CAT Rules 1993.

Only law made u A 323A

An Act to provide for the adjudication or trial by Administrative Tribunals of disputes and
complaints with respect to recruitment and conditions of service of persons appointed to
public services and posts in connection with the affairs of the Union or of any State or of any
local or other authority within the territory of India or under the control of the Government of
India or of 1[any corporation or society owned or controlled by the Government in pursuance
of article 323A of the Constitution] and for matters connected therewith or incidental thereto.

See PPT for overview of AT Act - 5 chapters and what they deal with.
For filing/drafting - CH 3 and 4 are Important.

CH 3
Jurisdiction, Powers and Authority of Tribunals.

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NOTE - Drafting before CAT - mix of plaint, appeal, and indexing provisions present in HC
procedure. Plus differences - no verification is required at the end of the Original Application,
only requested in the affidavit.

S 17 - imp - power to punish for contempt - This is a Judicial power, so the question is why an
Administrative body has this power? This points the intention to equate ATs to HCs.

CH 4
S 19 - Used to file Applications to Tribunals -
19. Applications to tribunals.—
(1) Subject to the other provisions of this Act, a person aggrieved by any order pertaining to any
matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the
redressal of his grievance.

Explanation.—For the purposes of this sub-section, “order” means an order made—

(a) by the Government or a local or other authority within the territory of India or under
the
control of the Government of India or by any corporation 3[or society] owned or controlled by
the Government; or
(b) by an officer, committee or other body or agency of the Government or a local or
other
authority or corporation 3[or society] referred to in clause (a).

(2) Every application under sub-section (1) shall be in such form and be accompanied by such
documents or other evidence and by such fee (if any, not exceeding one hundred rupees) 4[in
respect of the filing of such application and by such other fees for the service or execution of
processes, as may be prescribed by the Central Government.

(3) On receipt of an application under sub-section (1), the Tribunal shall, if satisfied after such

89
inquiry as it may deem necessary, that the application is a fit case for adjudication or trial by it,
admit such application; but where the Tribunal is not so satisfied, it may summarily reject the
application after
recording its reasons.

(4) Where an application has been admitted by a Tribunal under sub-section (3), every
proceeding under the relevant service rules as to redressal of grievances in relation to the
subject-matter of such application pending immediately before such admission shall abate and
save as otherwise directed by the Tribunal, no appeal or representation in relation to such
matter shall thereafter be entertained under such rules.

MOVING ON
S 20 is also V imp - need a separate para in pleadings that s 20 is complied with and that
you have availed other remedies.

20. Applications not to be admitted unless other remedies exhausted.—

(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant
had availed of all the remedies available to him under the relevant service rules as to redressal
of grievances.

(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the
remedies available to him under the relevant service rules as to redressal of grievances,—
(a) if a final order has been made by the Government or other authority or officer or
other person competent to pass such order under such rules, rejecting any appeal preferred or
representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer
or other person competent to pass such order with regard to the appeal preferred or
representation made by such person, if a period of six months from the date on which such
appeal was preferred or representation was made has expired.

(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of

90
submission of a memorial to the President or to the Governor of a State or to any other
functionary shall not be deemed to be of one of the remedies which are available unless the
applicant had elected to submit such memorial.

S 21 - LIMITATION - Original application requires a statement on limitation

S 22 is ALSO V IMP -

22. Procedure and powers of Tribunals.—

(1) A Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure,
1908 (5 of 1908), but shall be guided by the principles of natural justice and subject to the other
provisions of this Act and of any rules made by the Central Government, the Tribunal shall have
power to regulate its own procedure including the fixing of places and times of its inquiry and
deciding whether to sit in public or in private.

(2) A Tribunal shall decide every application made to it as expeditiously as possible and
ordinarily every application shall be decided on a perusal of documents and written
representations and 1[after hearing such oral arguments as may be advanced].

(3) A Tribunal shall have, for the purposes of 2[discharging its functions under this Act], the
same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908),
while trying a suit, in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1
of 1872), requisitioning any public record or document or copy of such record or document from
any office;
(e) issuing commissions for the examination of witness or documents;
(f) reviewing its decisions;
(g) dismissing a representation for default or deciding it ex parte;

91
 (h) setting aside any order of dismissal of any representation for default or any order
passed by it ex parte; and
(i) any other matter which may be prescribed by the Central Government.

Note that when power of civil courts are granted to a forum - only those enumerated powers are
granted, and not other related powers. Hence it is a statutory granting of power - no inherent
power with the tribunal.

MOVING ON

S 27 is V IMP -
27. Execution of orders of a Tribunal.—
Subject to the other provisions of this Act and the rules, 2[the order of a Tribunal finally
disposing of an application or an appeal shall be final and shall not be called in question in any
court (including a High Court) and such order] shall be executed in the same manner in which
any final order of the nature referred to in clause (a) of sub-section (2) of section 20 (whether or
not such final order had actually been made) in respect of the grievance to which the application
relates would have been executed.

Execution is v diff wrt civil courts, as no specific execution proceedings are required.
Implication - it is now effectively a merits review tribunal and not a jurisdictional review tribunal
as it was original envisaged.

Note per L Chandrakumar, judicial review can be filed against a tribunal order before the HC.
Plus appeal is present to the SC.

See the Draft in the PPT - Checklist wrt Applications being drafted.

At the outset of the Original Application - Index needs to be filed with the particular division of
case to be specified. This division is present in an annexure. IT is a function of your lis and the

92
impugned order that you are challenging. Also need to write relevant ministry under whose
control the department comes.

See the details of the Index- what all it needs, plus the annexures.

For exam - 10 essential paras- in PPT -

1. Particulars/details of impugned order.
2. Statement wrt jurisdiction ie. u which section is there jurisdiction
3. Limitation
4. Paras wrt facts of case (this part is similar to plaints)

93
 5. Grounds for relief (Note in p,aint no separate grounds they are integrated. But here they
are separate)
6. Statement wrt exhaustion of remedy
7. Whether filed before another forum
8. Prayer clause
9. If any interim order prayed for. If nothing - you write that - IF you do decide to pray for
an interim order - GIVE SEPARATE GROUNDS FOR IT
10. Postal order
11. Annexures

Note no verification

SEE PPT ON HOW EXACTLY TO FORMAT IT - UNCLEAR IN PPT WILL NEED TO

REFER TO OG DRAFT

Affidavit - V SIMILAR TO THAT OF APPEALS, DISSIMILAR TO THOSE YOU FILE in

original appliatiosn. See ppt.

- Ensure docs are legible. If not legible, file a miscellaneous application for such legible
copies along with OA.

94
 - Some govt orders are in local languages. In casethese are filed before ATs - need to file
translated copies.

7/3/24

Consumer Complaint
Drafting before Consumer Forums
Consumer protection act - cpa

See PPT for the different pecuniary jurisdictions - district, state and national commission - the
real thing is in the Rules and not in the statute.

Difference between Commission and Tribunal - A commission is the initial stage, before a
tribunal is formed. A commission is generally a part of the executive without strict adjudicatory
powers. However now adjudicatory powers are bestowed upon it - for consumer/tort cases.

Rule making power of Central Govt - S 101 of the CPA.

95
Rule 12 - The Consumer Protection (Consumer Disputes Redressal Commissions) Rules, 2020
& The Consumer Protection (General) Rules, 2020

12. Procedure in respect of complaints before National Commission. —

(1) A complaint shall be presented to the National Commission by the complainant in person or by his agent, or be
sent by a registered post, addressed to that Commission, containing the following particulars, namely:-

(a) the name, description and the address of the complainant;

(b) the name, description and address of the opposite party or parties, as the case may be, so far as they
can be ascertained;

(c)the facts relating to the complaint and when and where it arose;

(d)the documents in support of the allegations contained in the complaint;

(e)the relief which the complainant claims.

(2) Every complaint under sub-rule (1) shall be accompanied by a fee as specified in rule 7.

(3) The National Commission shall, while disposing of any complaint before it, follow the procedure and conditions
provided under sections 37 and 38, with such modifications as may be considered necessary by it.

(4) On the date of hearing or any other date to which hearing may be adjourned, the parties or their authorised
agents shall appear before the National Commission, and where-

(a) the appellant or his authorised agent fails to appear, the National Commission may, in its
discretion, either dismiss the complaint for default or decide it on merits;
(b) the respondent or his authorised agent fails to appear, the National Commission may decide the
complaint ex-parte on the merits of the case.

(5) The National Commission may, on such terms as it deems fit and at any stage of the proceedings, adjourn the
hearing of the complaint, but the complaint shall be decided as far as possible within a period of-

(a) three months from the date of notice received by the opposite party where such complaint does not
require any analysis or testing of commodities; and
(b) five months if such complaint requires analysis or testing.

(6) In the event of a complaint being disposed of after the period specified in sub-rule (5), the National Commission
shall record in writing, the reasons for such delay.

(7) If after conducting the proceedings, the National Commission is satisfied with the allegations contained in the
complaint, it shall issue order to the opposite party or parties, as the case may be, directing him or them to take one
or more of the actions mentioned in sub-section (1) of section 39.

(8) The National Commission shall also have the power to direct that any order passed by it, where no appeal has
been preferred under section 67 or where the order of the National Commission has been affirmed by the Supreme
Court under that section, be published on its website or through any other media and no legal proceedings shall lie
against the National Commission or any media for such publication.

96
(9) The State Commission and the District Commission shall follow the procedure specified in this rule, with such
modifications as may be necessary, in respect of the complaint before them.

See the table mentioned under R7 - Fees payable to the commission to hear a matter. IN PPT. its
different for different commissions.
R7 - method for deposit of fee is by a crossed DD/indian postal order.

MOVING ON

See PPT for draft.

Note however that the draft attached has too much infor in paras.

Para 1 - introduction. Who is the complainant - per r 12 (1).

(a) the name, description and the address of the complainant;

(b) the name, description and address of the opposite party or parties, as the case may be, so far as they
can be ascertained;

(c)the facts relating to the complaint and when and where it arose;

(d)the documents in support of the allegations contained in the complaint;

(e)the relief which the complainant claims.

97
Para 2 - Introductory facts, not material facts.

Para 3 - technical explanation. Still an introductory paragraph. Any technical information myst
be put forward in simple words.

Any documents - mention their annexure numbers at that point itself in the draft.

Max 6 paras for Intro facts.

Prayer -
Below the prayer no verification,

AFFIDAVIT - simple - similar to that of the CAT.

18/3/24

Petition under MV Act

165. Claims Tribunals. -

(1) A State Government may, by notification in the Official Gazette, constitute one or more
Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for
such area as may be specified in the notification for the purpose of adjudicating upon claims for
compensation in respect of accidents involving the death of, or bodily injury to, persons arising
out of the use of motor vehicles, or damages to any property of a third party so arising, or
both.

Explanation.For the removal of doubts, it is hereby declared that the expression claims for
compensation in respect of accidents involving the death of or bodily injury to persons arising
out of the use of motor vehicles includes claims for compensation under [section 164].

(2) A Claims Tribunal shall consist of such number of members as the State Government may
think fit to appoint and where it consists of two or more members, one of them shall be
appointed as the Chairman thereof.
(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he

98
 (a) is, or has been, a Judge of a High Court, or
(b) is, or has been, a District Judge, or
(c) is qualified for appointment as a High Court Judge [or as a District Judge.]

(4)Where two or more Claims Tribunals are constituted for any area, the State Government, may
by general or special order, regulate the distribution of business among them.

166. Application for compensation. -

(1) An application for compensation arising out of an accident of the nature specified in sub-
section (1) of section 165 may be made

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of
the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal
representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such
application for compensation, the application shall be made on behalf of or for the benefit of all
the legal representatives of the deceased and the legal representatives who have not so joined,
shall be impleaded as respondents to the application.

[Provided further that where a person accepts compensation under section 164 in accordance
with the procedure provided under section 149, his claims petition before the Claims Tribunal
shall lapse.]
[(2) Every application under sub-section (1) shall be made, at the option of the claimant, either
to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the
Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on

99
business or within the local limits of whose jurisdiction the defendant resides, and shall be in
such form and contain such particulars as may be prescribed:

[(3) No application for compensation shall be entertained unless it is made within six months
of the occurrence of the accident.]

(4) The Claims Tribunal shall treat any report of accidents forwarded to it under [section 159]
as an application for compensation under this Act.]

[(5) Notwithstanding anything in this Act or any other law for the time being in force, the right
of a person to claim compensation for injury in an accident shall, upon the death of the person
injured, survive to his legal representatives, irrespective of whether the cause of death is
relatable to or had any nexus with the injury or not.]

Note -
Section 158 (6):
As soon as any information regarding any accident involving death or bodily injury to any
person is recorded or report under this section is completed by a police officer, the officer-in-
charge of the police station shall forward a copy of the same within thirty days from the date of
recording of information or, as the case may be, on completion of such report to the Claims
Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is
made available to the owner, he shall also within thirty days of receipt of such report, forward
the same to such Claims Tribunal and Insurer."

Delhi Motor Accident Claims Tribunal Rules 2008 -

8. Applications.-
(1) Every application for payment of compensation shall be made in Form “G” and shall be
accompanied by as many copies, as may be required, to the Claims Tribunal having jurisdiction
to adjudicate upon it.

(2) There shall be appended to every such application:-

100
 (a) an affidavit of the applicant to the effect that the statement of facts contained in the
application is true to the best of his/her knowledge/belief, as the case may be, and further if the
applicant(s) has/have earlier preferred any claim petition with regard to the same cause of
action, and if so, what was the result thereof;

(b) all the documents and affidavits for the proof thereof, and affidavits in support of all
facts on which the applicant relies in context of his/her claim, entered in a properly prepared
list of documents and affidavits:

Provided that the Claims Tribunal may not allow the applicant to rely in support of his/her
claim, on any document or affidavit not filed with the application, unless it is satisfied that for
good or sufficient cause, he/she was prevented from filing such document or affidavit earlier;

(c) proof of identity of the applicant (s) to the satisfaction of the Claims Tribunal,
unless exempted from doing so for reasons to be recorded in writing by it;

(d) passport size photograph(s) of the applicant(s) duly attested by the advocate on
record.

(e) reports obtained in Form “C” and Form “D” from investigating police officer, and
registering authority; and if no such report(s) have been obtained reasons therefor;

(f) medical certificate of injuries, or the effect thereof, other than those included in Form
“C”.

(3) The Claims Tribunal may also require the applicant to furnish the following information
to satisfy itself that spurious or a collusive claim has not been preferred:-
(a) full particulars of all earlier accidents in which the applicant or the person
deceased, as the case may be, has been involved;

101
 (b) the amount of compensation paid in such earlier accidents, name and particulars
of the victim, and of the person who paid the damages; and

(c) connection of persons mentioned in clause (b), if any with the applicant. (4) Any
application which is found defective on scrutiny may be returned by the Claims Tribunal for
being re-submitted after removing the defects within a specified period not exceeding two weeks.

(5) Every application for compensation shall be registered separately in appropriate register
prescribed as per rule 36.

20. Application for claim on principle of no fault liability:-

(1) Every application in case of claim under Chapter X of the Act, shall be made in part II of
Form “G”.

(2) The Claims Tribunal shall, for the purpose of adjudication of the application mentioned in
this rule shall follow such summary procedure as it thinks fit.

(3) The Claims Tribunal shall not reject any application made as per the provisions of Chapter
X of the Act on ground of any technical flaw, but shall give notice to the applicant and get the
defect rectified.

(4) Where the application is not accompanied by reports in From “A” and Form “D”, the
Claims Tribunal shall obtain whatever information is necessary from the police, medical and
other authorities and proceed to adjudicate upon the claim whether the parties who were given
notice appear or not on the appointed date.

(5) The Claims Tribunal shall expeditiously proceed to award the claims on the basis of reports
in Form “A” and Form “D” and further documents relating to injuries or treatment, if any filed
with affidavit, and report or certificate, if any, issued in compliance with directions under rule
18.

(6) The Claims Tribunal in passing an award on such application, shall also issue directions for
apportionment, if required and for securing the interests of the claimants, following the
provisions of rules 26 and 27.

SEE FORM G IN THE RULES - VERY IMP TO SEE THE DETAILS REQD
ALSO FORM A THAT HAS TO BE SUBMITTED BY THE SHO

102
20/3/24

Divorce Petitions

Dissolution of marriage - TAKE NOTES FOR THIS

See PPT - Basically covers everything

Can take multiple grounds, but make sure you have documentary/ocular evidence.

Check the requirement of affidavits - no multiple proceedings/pending cases etc.

1. Empathy and professionalism and might be a good idea to suggest psychological help

• Establish Rapport

• Explain Confidentiality

• Gather Background Information – things like family structure, living standards,

arrangements, what are their priorities,

• Follow up – not a single drafty

Ask them which theory which they wwant to follow and its repurcussions:

Second para

Petitioner/Husband

Status Age Place of Residence

Respondent Wife

Status Age Place of Residence

103
Third. Give details of the ceremony, number of guests.

Fourth. Start with allegations

Fifth. Filed police cases

Sixth. Lack of collusion

Verification

Affidavit

HMA s 20 specific pleadings.

Verification

Writ petitions
What is patent illegality?

3 things come to judicial review -

1. Illegality (see ppt) - when the authority acts ultra vires - under errors of law and fact,
imposing onerous aspects, not considering relevant or considering irrelevant factors.
2. Procedural impropriety - PNJ/procedure violations
3. Irrationality - so unreasonable that no reasonable authority would have made that
decision

A 226
- Many amendments
- 226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in article 32, every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of habeas corpus,

104
mandamus, prohibition, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in
part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay
or in any other manner, is made on, or in any proceedings relating to, a petition under
clause (1), without—

(a) furnishing to such party copies of such petition and all documents in support
of the plea for such interim order; and

(b) giving such party an opportunity of being heard,

makes an application to the High Court for the vacation of such order and furnishes a
copy of such application to the party in whose favour such order has been made or the
counsel of such party, the High Court shall dispose of the application within a period of
two weeks from the date on which it is received or from the date on which the copy of
such application is so furnished, whichever is later, or where the High Court is closed on
the last day of that period, before the expiry of the next day afterwards on which the High
Court is open; and if the application is not so disposed of, the interim order shall, on the
expiry of that period, or, as the case may be, the expiry of the said next day, stand
vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme Court by clause (2) of article 32.

105
 - HC Writs (how different (and more exhaustive) from power of SC)
- On stuff other than FRs - such as other statutory duties etc
- SC can issue writs only against state u A 12. But hc can issue writs to any
person/authority. This is per the doctrine of public element
- HC can issue direction/orders/writs (so can the SC).
- Writs ‘in the nature of’ - allows courts to modify the relief + not exhaustive of the
writs that can be issued.

- See Whirlpool Corp v Registrar of Trademarks - when despite availability of alternate

remedies, HC can still issue a writ where -
- Violation of FRs
- Ground violative of rule of law and no other effective remedy exists
- There is a fetter imposed on the alternate remedy by the HC
- A 227 - Supervisory Jurisdiction - similar to revision - cannot be exercised if
appeal/revision is available. Only on questions of jurisdiction.
- Note -cwrits are not appeal in disguise. Court will not decide on merits in 226.
Concurrent findings of fact will not be disturbed under 226 and 32.

PILs
SC Guidelines on PILs - gives exhaustive list of matters - bonded labour etc (see ppt). No such
list for HC.

Why PILs evolved -

1. To allow persons to bring suits for those who cannot approach SC due to financial etc
reasons
2. Only found in india
3. Basically relaxes locus standi

Now - Draft of WP - SEE PPT - its a good draft

106
Note - no need to write complete index for Qs on WP/PILs - But make a box indicating that
it is an Index so that he knows that an index has to be filed.

● Miscellaneous application attached - notice of motion, urgency application (makes your

case listed the next week)

● Memo of parties

● Synopsis and LOD - mandatory before SC. In a question you NEED to draft a
Synopsis and LOD. LOD generally comes before/after the synopsis.
● Synopsis - COA + material + remedy sought in a summarised form.

● LOD - tabular form

● To show locus - para on how the petitioner is a public spirited person

● List of persons sought to be represented and why they cannot themselves come
before the court

● Mentioned that the list of respondents is not exhaustive

● Need to make undertaking that you will bear any costs imposed for filing a frivolous
PIL

● Undertaking also on no multiplicity of cases on the same issues

● Material facts.

● Grounds - why has the petitioner approached the court - mentioned as part of the
factual matrix. Then later explicitly mentions grounds. - Plaint you don't need to
specify grounds. But here in WPs/PIL you need to satisfy onerous conditions and
hence mentioned
● Prayers

107
 ● Affidavit - with undertakings reqd

19/3/24

Matrimonial Drafts - 125 crpc

NOTE - as part of module 3, not part of mid sem syllabus

See ppt for general guidelines - familiarise with grounds, format petition acc to court,etc.

Family courts act -

S7 - Jurisdiction
(1) Subject to the other provisions of this Act, a Family Court shall—
(a) have and exercise all the jurisdiction exercisable by any district court or any
subordinate civil court under any law for the time being in force in respect of suits and
proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a
district court or, as the case may be, such subordinate civil court for the area to which the
jurisdiction of the Family Court extends.

Explanation.—The suits and proceedings referred to in this sub-section are suits and
proceedings of the following nature, namely:—
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of
marriage (declaring the marriage to be null and void or, as the case may be, annulling the
marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the
matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of
the parties or of either of them;

108
 (d) a suit or proceeding for an order or injunction in circumstance arising out of a marital
relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or
access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise—
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX
(relating to order for maintenance of wife, children and parents) of the Code of Criminal
Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.

Further it has exclusive jurisdiction per s8

S8
Where a Family Court has been established for any area,—
(a) no district court or any subordinate civil court referred to in sub-section (1) of section
7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or
proceeding of the nature referred to in the Explanation to that sub-section;
(b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or
powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1)
of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2
of 1974),—
(i) which is pending immediately before the establishment of such Family Court
before any district court or subordinate court referred to in that sub-section or, as the case
may be, before any magistrate under the said Code; and
(ii) which would have been required to be instituted or taken before such Family
Court if, before the date on which such suit or proceeding was instituted or taken, this Act
had come into force and such Family Court had been established,

109
shall stand transferred to such Family Court on the date on which it is established.

NOTE -
1. V important - date place time manner of marriage - these facts must be clearly mentioned.
This pertains to any matrimonial cases
2. Residency requirements - important to note to determine jurisdiction
3. Factual + Legal grounds only which are Objective. Grounds such as XYZ is emotional, is
etc etc should be avoided in the petition. Avoid usage of the client’s emotional language.
4. Adduce supporting documents in favour of what you're stating in the drafts.
5. Maintenance Laws in India - List ion PPT
a. CrPC is one of them
b. SC has given directive wrt multitude of proceedings in maintenance matters

125 CrPC
(1) If any person having sufficient means neglects or refuses to maintain–
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or injury
unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to
make a monthly allowance for the maintenance of his wife or such child, father or mother, at
such monthly rate 1* * * as such Magistrate thinks fit and to pay the same to such person as the
Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause
(b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is not possessed of sufficient means:

110
2[Provided further that the Magistrate may, during the pendency of the proceeding regarding
monthly allowance for the maintenance under this sub-section, order such person to make a
monthly allowance for the interim maintenance of his wife or such child, father or mother, and
the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same
to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and
expenses of proceeding under the second proviso shall, as far as possible, be disposed of within
sixty days from the date of the service of notice of the application to such person.]

Explanation.--For the purposes of this Chapter,

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875
(9 of 1875) is deemed not to have attained his majority;
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from,
her husband and has not remarried.

(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding
shall be payable from the date of the order, or, if so ordered, from the date of the application
for maintenance or interim maintenance and expenses of proceeding, as the case may be.]
(NOTE - per SC it is payable not from the Date of order but Date of Application)

(3) If any person so ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the amount due in
the manner provided for levying fines, and may sentence such person, for the whole or any part
of each months 4[allowance for the maintenance or the interim maintenance and expenses of
proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one month or until payment if sooner made:

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Provided that no warrant shall be issued for the recovery of any amount due under this section
unless application be made to the Court to levy such amount within a period of one year from
the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with
him, and she refuses to live with him, such Magistrate may consider any grounds of refusal
stated by her, and may make an order under this section notwithstanding such offer, if he is
satisfied that there is just ground for so doing.

Explanation.--If a husband has contracted marriage with another woman or keeps a mistress, it
shall be considered to be just ground for his wifes refusal to live with him.

(4) No wife shall be entitled to receive an 5[allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case may be,] from her husband under this
section if she is living in adultery, or if, without any sufficient reason, she refuses to live with
her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section in living
in adultery, or that without sufficient reason she refuses to live with her husband, or that they
are living separately by mutual consent, the Magistrate shall cancel the order.

Why is it in the CrPC -

To avoid destitution and vagrancy. It is a preventive provision in the crpc.

2 requirements of 125 -
1. Cohabitation of husband/wife in the nature of marriage. Therefore 1st ground in petition
is to show that there is a valid marriage - hence need to give deets of marriage in petition
plus show cohabitation. Here you attach pictures, ceremonies that had occurred etc.
2. That the person has neglected/refused to maintain.. Here per court interpretation whether
there are sufficient means to the person who needs to give maintenance is a secondary
consideration. Therefore focus on facts that show that neglect has actually happened.

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Procedure for 125 in 126

126
(1) Proceedings under section 125 may be taken against any person in any district–
(a) where he is, or
(b) where he or his wife resides, or
(c) where he last resided with his wife, or as the case may be, with the mother of the
illegitimate child.
(2) All evidence in such proceedings shall be taken in the presence of the person against whom
an order for payment of maintenance is proposed to be made, or, when his personal attendance
is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed
for summons-cases:
Provided that if the Magistrate is satisfied that the person against whom an order for payment of
maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend
the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so
made may be set aside for good cause shown on an application made within three months from
the date thereof subject to such terms including terms as to payment of costs to the opposite
party as the Magistrate may think just and proper.
(3) The Court in dealing with applications under section 125 shall have power to make such
order as to costs as may be just.

Note - req that an affidavit is filed that only a single proceeding is filed under 125 to prevent
multiplicity.
127 - Alteration in allowance
128 - Enforcement

See case law on 125 in the PPT.

Eg - where cannot strictly prove marriage - the court has still given relief in 125.
Nature of proceeding under 125 is civil - must be disposed of in a summary manner.

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NOTE
2020 SC Decision - Rajnish v. Neha
Omnibus provisions with respect to petitions in maintenance cases -
11 are there - important - read by yourself.
Also 3 enclosures reqd per the judgement.
1. On assets and liabilities - basic details, details wrt legal proceedings, details of dependant
family, medical expenses, details on children etc. also details of liabilities of depondents
to allow the curt to ascertain their lifestyle
a. Have to undertake that no other proceedings have been filed etc
2. If into agro business - different enclosure
3. If belonging to meghalaya - diff enclosure as there is a matrilineal system.
Gave criteria on how to calculate maintenance.

See PPT FOR 125 DRAFT - it's not a good draft as it goes into unnecessary facts.
1. Start by describing the applicants - provide prelude/introduction.
2. Also mention the status of marriage. However, avoid descriptive patriarchal bs language
that has no implication on the petition - eg. she performed all her righteous obligations
etc.

1/4/24

Criminal Complaints
S 190, 200 crpc -Filing complaint, magistrate taking cognisance on complaint

Drafting complaint under S 190 -

See PPT
- Specify name of person you are accusing/ if you can't try note some identifying marks
- Know the crime, ingredients
- Complainant’s contact details

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 - Time and date of crime. Make sure that your client has not committed a crime in the
process (eg. client commits trespass after which they file for criminal hurt)
- Description of events
- Physical evidence wrt crime - list of witnesses+corroborating details
- Name + contact of witness

Why is it important? Because under 200 the magistrate peruses all of this before taking
cognisance.

Basic Rules (See PPT)

- Keep it brief
- Precise
- Relevant - no need to be verbose
- Stick to elements of offence
- Plead facts, NOT evidence or law (just state the section how its elements are met etc)
- Don't plead unnecessary facts that don't add to your narrative
- Don't plead those facts presumed/facts the other sides have to prove
- Give particulars of mens rea - how/why they have guilty mind (2-3 paras with
circumstances that show mens rea)
- Don't change terminology
- Don't use words you don't understand/the court may not understand
- Don't use passive voice
- Don't use ambiguous words

- Complaint - is in the nature of indictment (SEE PPT FOR THIS SLIDE)

- Averments - properly established and proved in complaint
- Etc

In queashing complaints/firs under 482 (RP Kapur v Punjab)-

1. Whether it is legally barred - eg. cognizance by police of a non cognisable offence

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 2. Where allegations do not constitute offence - not prima facie seen to be committed by
accused
3. Either no legal evidence in support of charge/evidence fails to prove charge

Hence while drafting a complaint you need to keep these in mind - to ensure that your complaint
is not quashed on these grounds

3/4/24 Criminal Complaint drafts -

1. In the start mention name of PS
2. Need to mention complaint to register FIR under X Y Z sections
3. You address it to the magistrate who has jurisdiction in the instant case’
4. Most respectfully showeth
5. Generally objections from the registry are wrt -
a. Not legible
b. Not translated
c. Not attested
d. Court fees not paid
6. Instead of ABC XYZ - use Complainant 1, Accused 1 etc.
7. Para 1 - who is the complainant
8. Para 2 - filed by authorised representatives of complainant companies
9. Para 3 - 6 - who is the accused, how did the accused come to interact with complainant,
role of the accused etc - Basic info of the know antecedents and related position of the
accused with the complainant.
10. ALWAYS REMEMBER - in drafting a criminal complaint - if there is potential for a
parallel story to be narrated that is against what you are narrating in your complaint - that
is not good. So ensure that it is drafted in such a way that the potential for negating what
you have claimed by crafting an alternative narrative isnt there.
11. MENTION DATES figures ETC in numbers and letters - O6 R2
12. Note - in drafts - it's prudent to introduce all the subjects/actors at the start. Don't do it in
the middle - its abrupt.

116
 13. Need to give physical evidence per S 190 - hence when you are alleging something - say
forgery need to annex physical evidence in the draft
14. Give allegations in para 3 - and make sure that you explain what you are saying in your
allegations
15. Note that in 156(3) - narrate the facts of actually approaching the PS, you providing
necessary information etc and despite such the FIR was not filed.
16. Note that in a complaint make sure that you sufficiently demonstrate the Mens rea. Eg -
in cases of forgery/misappropriation of money - you ought to show the trail of money etc.
17. Note that Jurisdiction, Limitation and Court fees clauses ARE ESSENTIAL IN ANY
DRAFT THAT YOU FILE - toward the end.
18. In delhi - complaint cases - most have been filed before the Chief Metropolitan
Magistrate
19. See DASHRATH JI CRIMINAL COMPLAINT - under S 200 CrPC.

S 133 - Public Nuisance - complaint to SDM, DM, or Executive Magistrate

See S 138 - Procedure when 133 shows cause
Form 20 - Through which magistrate gives notice for public nuisance
- See the form to see the sort of descriptions you ought to have in your complaint
- You will do this in the form of a letter to the authority - following the above elements etc.

Moving on

Dishonour of Cheques
S 138 NIA

138. Dishonour of cheque for insufficiency, etc., of funds in the account.

1[Where any cheque drawn by a person on an account maintained by him with a banker
for payment of any amount of money to another person from out of that account for the
discharge, in whole or in part, of any debt or other liability, is returned by the bank

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unpaid, either because of the amount of money standing to the credit of that account is
insufficient to honour the cheque or that it exceeds the amount arranged to be paid from
that account by an agreement made with that bank, such person shall be deemed to
have committed an offence and shall, without prejudice to any other provision of this
Act, be punished with imprisonment for 2[a term which may be extended to two years],
or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless--

(a) the cheque has been presented to the bank within a period of six months from the
date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a
demand for the payment of the said amount of money by giving a notice; in writing, to
the drawer of the cheque, 3[within thirty days] of the receipt of information by him from
the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money
to the payee or, as the case may be, to the holder in due course of the cheque, within
fifteen days of the receipt of the said notice.

Explanation.-- For the purposes of this section, debt of other liability means a legally
enforceable debt or other liability.

During 2005-08 - Most of the pending cases were wrt S 138

- S 138 deems guilt
- Proviso has 3 requirements
- S 139 - presumption wrt holder - presumed that holder is HIDC

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SEE PPT FOR DETAILS ON 138

Notice U S 138 - Flaws in Chat GPT Notice

- Subject - doesn't mention 138
- Merely Mentions that dishonour is due to insufficiency of funds - the date of presenting,
dishonour, all particulars are relevant.

See Draft - Redact details of necessary parties

1. Mandatory index - with a complaint - with all necessary details - of the complainant, of
the accused, of the financial liability (how it was created etc), particulars of the cheque
2. Memo of parties, Complaint, list of witnesses, list of evidence, vakalatnama
3. NEED TO MENTION POLICE STATION after the memo of parties - EVEN IN
CRIMINAL COMPLAINTS U S 190
4. In the draft -
a. Details wrt transaction
b. Details wrt notice being given to accused
c. Meeting requirements u 138
d. Where you don't file within 1 month - eg where the accused etc asks for additional
time - mention it otherwise you may be hit by limitation
e. See para 10 - how conduct of accused shows not to repay
f. S 139 creates a positive presumption against accused - so you as a complaint do
not need to plead these things
g. Need a specific section for prayer
5. Need affidavit - see draft
6. List of documents
a. Notice of the Lawyer - that was sent to the accused must also be attached
7. List of witnesses

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BAIL - 18/4/24

● FIR is not a precondition for arrest, and hence is not required to file a bail application
● Anticipatory bail - all you need is an immediate apprehension of arrest
● Tests wrt bail -
○ 3 golden rules of bail -
○ Flight - the person would flee and will not be able to be brought back into custody
- depends on nature of offence etc)
○ Possibility of influencing witness (depends on character of accused, public
interest etc)
○ Tampering evidence (Possibility, reasonable apprehension)
● SK Antil -
○ See directions -
○ Consier enacting bail act
○ 41 and 41A compliance
○ Arnesh Kumar
○ Where you needn't have bail application - 204, 209
○ Compliance with Siddharth
○ Comply with directions of court
○ Undertials
○ Sureties per 440
○ Bail applications disposed within 2 weeks
● Considerations while granting bail -
○ Gravity
○ Severity
○ Position and status of accused vis a vis victim witness etc
○ Fleeing
○ Possibility of tampering
○ Possibility of obstructing course
○ Prima facie satisfaction of the court wrt the charge

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 ● No objective criteria on mitigating factors wrt bail application - parties tend to mention
stiff like mental condition etc however we don't know what the court may give weight to,
as it is a function of facts and circumstances.
○ If in bail application - say you make averments on character etc of the accused, be
ready to open grounds for the prosecution to make opposite averments/present
evidence on bad character
● Reasons for cancellation of bail -
○ interference/attempt to interfere with course of justice
○ Non cooperation
○ Damaging evidence
○ Possibility of absconding
○ Possibility of misuse of bail
● Anticipatory bail
○ Triple test - Gurbaaksh SIngh Sibbia -
○ 1. Presence of the accused before the court at the time of hearing of application.
○ 2. Nature of evidence involved - if low scope of tampering - say mostly
documentary evidence which is already in possession of the prosecurtion
○ 3. Deep roots in society - married/old parents/sole earning member
○ MUST MAKE OUT SPECIAL CASE FOR EXERCISE of power
○ Where power under 438 should not be exercised
○ No anticipatory bail for death/imprisonment for life - unless appears charges are
false/groundless
○ Satisfaction based on materials before it

DRAFT

● 437
○ Name of the court
○ Bail application number
○ PS involved - for all criminal drafts below the memo of parties ion the right side
○ Date of FIR

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 ○ Cause title - Application for grant of bail under X section of Y statute read with
CrPC
○ Brief facts - introduction to the accused - generally done where not a habitual
offender/is not a habitual criminal - law abiding citizen etc
○ How did the situation come up - say old rivalry etc - Mention
○ Put on minimum burdens/conditions on yourself - that in the bare minimum
satisfy the triple test
○ Write a few exonerating circumstances - to show that here is NO PRIMA FACIE
CASE against you
○ IMP - DRAFTS NEED TO SHOW HOW TRIPLE TEST IS BEING SATISFIED
○ Write that accused is ready to satisfy conditions
○ Write if the bail application is being filed not by the accused, but on behalf of the
accused
○ Prayer
○ Signed by applicant
○ NO VERIFICATION NEEDED
○ Affidavit is needed - which needs to be verified. NEED to mention that there is no
concealment in the given bail application. Read with contents of the
accompanying application for brevity.
○

Criminal Miscellaneous Petitions - 482 -

23/4/24
SEE DRAFT SENT ON MAIL - on CMPS
● Can be filed irrespective of whether trial has commenced, what is the exact stage etc.
● Needn't be filed in already pending matters - can have their own locus/stand on their own
feet.
● Dont confuse with civil ionterlocutary applications - which can only be done in pending
matters

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● Definitions -
○ According to Oxford Dictionary meaning of Miscellaneous is consisting of
mixture of various things that are not usually connected with each other.
○ “ A formal expression of request submitted by way of an application before the
criminal court in or otherwise in the criminal proceedings on different kinds of
reliefs for some privilege, right, benefit, or for an action ”.
● Is there a difference between application and petition. Whatever you file before a court to
invoke its jurisdiction is a Petition. So every application is a petition, but not every
petition is an application
● See PPT for examples of CMPs - recall of warrants, bail, anticipatory bail, 482 invoking
inherent jurisdiction etc,
● S 482 CrPC - Saving of inherent powers of High Court. - Nothing in this Code shall be
deemed to limit or affect the inherent powers of the High Court to make such orders as
may be necessary to give effect to any order under this Code, or to prevent abuse of the
process of any Court or otherwise to secure the ends of justice.
○ otherwise to secure the ends of justice - broadens the scope of 482.
○ Where can HC interfere u 482 - See RP Kapur v. Punjab -
■ (i) where there was a legal bar against the institution or
continuance of the proceedings;
■ (ii) where the allegations in the first information report
or complaint did not make out the offence alleged; and
■ (iii)where either there was no legal evidence adduced in
support of the charge or the evidence adduced
clearly or manifestly failed to prove the charge.
○ No limitation for an application under section 482
○ Haryana v. Bhajanlal - 7 instances/grounds for 482 petitions -
■ a) where the allegations made in the First Information Report or the
complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case
against the ac- cused;
■ (b) where the allegations in the First Information Report and other
materials, if any, accompanying the F.I.R. do not disclose a cognizable

123
 offence, justifying an investigation by police officers under Section 156(1)
of the Code except under an order of a Magistrate within the purview of
Section 155(2) of the Code;
■ (c) where the uncontroverted allegations made in the FIR or 'complaint
and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused;
■ (d) where the allegations in the FIR do not constitute a cognizable offence
but constitute only a non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate as contemplated under
Section 155(2) of the Code;
■ (e) where the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient ground for proceeding
against the accused;
■ (f) where there is an express legal bar engrafted in any of the provisions of
the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institu- tion and continuance of the proceedings and/or
where there is a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the aggrieved party;
■ (g) where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to spite
him due to private and personal grudge.
● DRAFT PROVIDED -
○ ISSUES WITH THE DRAFT -
○ Need to write CMP No. instead of Crim Application
○ Mention name of PS where FIR filed
○ FIR number
○ Diary entry number
○ Sections under which FIR filed - on the right hand side below memo of parties
○ Cause title - CMP under 482 for quashing of FIR registered under XYZ Sections

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 ○ NEED SYNOPSIS in the start - this is not a summary of the file. Its purpose is to
explain for what purpose you have come before the forum hence only provide
relevant facts for the 482 quashing.
○ NEED LOD - even in exam - dates will be given in question
○ To, XYZ - statement REQD in petitions before hc and sc
○ Then most respectfully showeth
○ 1st para - details on FIR, sections for which FIR filed, jurisdiction of the court
○ 2nd para - brief facts of the case - intro - why the client is innocent, why should it
be quashed- its damaging reputation etc
○ Grounds
■ Where you use numbers like 1, 2, 3 for brief facts, use diff nomenclature
for grounds, ie. a, b, c etc
○ prayer
○ No verification reqd
○ Need affidavit - mentioning the fact that this petition is drafted under my
instructions. No similar petition in another court. True translated copy of FIR is
submitted.
○ Write stuff that exonerates the client
○ No need to mention cases extensively in your pleading - make it verbose - the
court holding the roster will know what was held in bhajan lal - so don't quote
cases etc
○ Hence dont mention bhajanlal - just mention your grounds using nomenclature
similar to that of bhajanlal
○ Be vague in prayers - so that the court just doesn't say allowed - this will be an
issue if you miss something in your prayer and the court just says allowed.

Go through both drafts that have been provided for 482.

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 Revision and appeals- 24.4.24

No difference in formats bw revision nd appeal and 482

- Index
- Lod
- Synopsis
- Forum
- Memo of parties
- Cause title - avoid v long cause titles
- Jurisdiction
- To the Honble CJ………
- part 1 - details of impugned order
- part 2 - brief facts
- part 3 - grounds
- While not required per crpc - it is expected to be given to convinbce the court to
exercise its discretion
- No similar petition filed - because if it has been then its a bar on filing revision - this fact
also has to be mentioned in the affidavit
- Part 4 - prayers
- Nomenclature of paras change with sections
- After z - then go aa, bb, cc, dd
- Signature of petitioner and counsel
- No verification
- Require affidavit

Whats the difference between 397 and 401 of crpc

397. Calling for records to exercise powers of revision.

(1)

126
 The High Court or any Sessions Judge may call for and examine the record of any proceeding before
any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself
or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or
passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for
such record, direct that the execution of any sentence or order be suspended, and if the accused is in
confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation. - All Magistrates, whether Executive or Judicial, and whether exercising original or
appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-
section and of Section 398.

(2)

The powers of revision conferred by sub-section (1) shall not be exercised in relation to any
interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3)

If an application under this section has been made by any person either to the High Court or to the
Sessions Judge, no further application by the same person shall be entertained by the other of them.

- Note that power under 397 - is much wider than civil revision under 115 - because 115 is
limited by the 3 conditions.
- Parallel power to both hc and sessions court
- correctness, legality or propriety of any finding, sentence or order, recorded or passed,
- Not limited to jurisdiction
- regularity of any proceedings of such inferior Court,
- This bit is on jurisdiction
- Limitation on ex of 397 under 397(2) - not on interlocutory orders - whenever the order
does not finally decide the rights of the parties - note stuff like bail could be treated as
interlocutory, but when bail is rejected some hcs treat it as a final order. Hence there is no
finality wrt what is an interlocutory orders.

401 - revision powers only of the HC.

- similar to 227 - supervisory/appellate powers to the HC when exercising its revisional

jurisdiction.
- Hence it makes sense to file revision before the HC because the Hc has powers u 397 and
401, and also 482 - to secure ends of justice.
- In most cases HC is approached
- If you go to sessions first in revision, you cannot go to hc in revision.
- Q - where you have approached hc under 397 and that is dismissed, can you subsequently
file a 482 petition?

127
 - As 482 starts with a non obstante clause - hence 482 is available irrespective of
wtv remedy hs been sought to be availed earlier. But 482 needs to be used
sparingly - should not further abuse.
- To avoid this many lawyers draft saying - 397 read with 401 read with482 - many
hc judge rosters of revisions and CMP are the same - this is technically
problematic but still courts allow it

Issues with the draft -

- Don't repeat facts while stating grounds
- Para c, d is not a ground - harassed etc - it is facts - not to be part of grounds
- No need to say ‘it is pertinent to mention etc-
- Limit yourself to the grounds that have been mentioned in 397
- If the facts impact courts finding then it still makes sense - simply mentioning the fact on
its own does make sense
- Don't make omnibus statements in the grounds

APPEAL
- Appeal is drafted in very similar manner
- Grounds are formulated differently - more leeway than revision
- Proviso to 372 - interpreted that victim can also file appeal if the conviction is for lesser
sentence or less serious offence - this is the only instance where there is a RT appeal
- After plea of guilt - no appeal
- 374 - most imp wrt appeals -
- Gives hierarchy
- Section 374. Appeals from convictions.
(1) Any person convicted on a trial held by a High Court in its
extraordinary original criminal jurisdiction may appeal to the Supreme
Court.

(2) Any person convicted on a trial held by a Sessions Judge or an

Additional Sessions Judge or on a trial held by any other court in which a
sentence of imprisonment for more than seven years 1 [has been passed
against him or against any other person convicted at the same trial], may
appeal to the High Court.

128
 (3) Save as otherwise provided in sub-section (2), any person,--

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant

Sessions Judge or Magistrate of the first class, or of the second class, or
-

(b) sentenced under section 325, or

-

(c) in respect of whom an order has been made or a sentence has been
passed under section 360 by any Magistrate,
-

may appeal to the Court of Session.

-

2[(4) When an appeal has been filed against a sentence passed under
section 376, section 376A, section 376AB, section 376B, section 376C,
section 376D, section 376DA, section 376DB or section 376E of the Indian
Penal Code (45 of 1860), the appeal shall be disposed of within a period of
six months from the date of filing of such appeal.]
-
382, 383 - V IMP for drafting - read

382. Petition of appeal.

- Every appeal shall be made in the form of a petition in writing presented by the appellant or
his pleader, and every such petition shall (unless the Court to which it is presented otherwise
directs) be accompanied by a copy of the judgment or order appealed against.

383. Procedure when appellant in jail.

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- If the appellant is in jail, he may present his petition of appeal and the copies accompanying
the same to the officer in charge of the jail, who shall thereupon forward such petition and
copies to the proper Appellate Court.
383- Jail Manual+ manual 3 - has details of how this is done.

2 basic rules while drafting appeal -

1. While accused is exonerated/acquitted by a lower court, presumption of innocence is
strengthened in appeal
2. Accused entitled to benefit of reasonable doubt wrt guilt wehre acquitted/convicted by
LC

Power of sc, hcs wrt appeals - see ppt

29/4/24 - Conveyancing
Chirograph - can be made in duplicate, triplicate, etc - depending on how many people are
getting into that agreement.

What is conveyancing?
Why do we create an agreement for conveyancing?

Getting possession of movable property is easy when you enter into a transaction - generally
handed over, and then so is ownership.

But issues wrt immovable property - where you don't physically transfer but transfer rights - so
you need to create a document to show a legal right/ownership. Hence conveyancing helps in
creating validity of transfers under law.

CDALE - Create/declare/assign/limiting/extinguishing rights - through conveyancing.

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What is the definition of a document? See S 3 (18) of the General Clauses Act 1897.

A document becomes an instrument - when it CDALE/poses to CDALE on behalf of one person

for another.
Executed instrument - when it is signed by the persons concerned.
Without execution, an instrument is incomplete.

4 essentials of conveyance -
1. Writing
2. Signing
3. Seal
4. Deliver
All the above are needed for a complete conveyancing.

Definitions of conveyancing - To convey. See definitions under different acts from PPT.

India - no specific law for conveyancing

2 ways of conveyancing -
1. When performed unilaterally by 1 person - By deed bowl - eg power of attorney, gifts, ,
will etc - don't need execution by a second person to create it.
2. Where a document requires execution by two or more parties - Indenture - Bilateral or
multilateral deed - eg. lease, sale deed etc

What is a deed?
Any written instrument - signed, sealed, delivered - conveys some interest in property. See
definition in PPT.

What is delivery of a deed?

Placing a deed in grantee's hand/control. Intention of grantor that it operates immediately as
conveyancing. See PPT.

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Unless there is proper delivery - not complete conveyancing - even for Deed Bowls - when
delivered to the beneficiary, only then it is complete.

Definition of Instrument?
See ppt. Any legal document that does CDALE any right, title or interest.

Parts of conveyancing - see case law -

Sudha Gupta v. DLF - is a sale deed an indenture or a deed bowl - ie. is the signature of a vendee
required on a sale deed?

- Description of the deed title - THIS DEED OF SALE/MORTGAGE/GIFT etc

- Place and date of execution of deed - signed at X on Y - can also include dates of
limitation, maturity of period registration of document, passing on the title etc
- Description of the parties
- Recitals - how parties got the rights they are CDALE, how they got into possession of the
rights title and interest. These are like a prelude, and are not the operative parts of the
deed.
- Whereas the parties have agreed as follows -
- Explanation to operative part
- Past history
- Testatum - ‘now this deed is witnesseth as under’ -testifying the terms and conditions
under which the deed is being created - defining future rights and liabilities of parties -
transfer of complete ownership, the vendor will not create any future encumbrances etc.
- Consideration
- Receipt clause
- Make complete the transaction - deed witnesses that in pursuance of the aforesaid
agreement and in consideration paid etc.
- Operative clauses - how it will get into operation

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Also will have - description of property, parcels clause, Exceptions and reservations, Premises
and habendun, etc.

30/4/24
Ram Charan v Girija Nandini 1965 -
Q - whether the recitals could be read to understand the intention of the operatie part of the deed?
Held - Now the expression "recitals" means, according to the Dictionary of English Law by
Jowitt:
"Statements in a deed', agreement or other formal instrument, introduced to explain or lead up
to the operative part of the instrument." It is stated further that recitals are generally divided
into narrative recitals which set forth the facts on which the instrument is based and
introductory recitals which explain the motive for the operative part. Where the recitals are
clear and the operative part is ambiguous the recitals govern the construction. Normally a
recital is evidence as against the parties to the instrument and those claiming under them and in
an action on the instrument itself the recitals operate as an estoppel, though that would not be so
on a collateral matter.

OPERATIVE CLAUSES -

- Must be unambiguous
- Habendum clause/to have and hold clause - enumerates the time period, type of interests
and benefits for which the benefactor will have and hold certain rights - eg. lessee shall
have and hold the premises for 10 years - that shall commence on X till Y - the rights are
listed per this Habendum clause.
- Its there where a deed gives a limited interest - it enumerates the limited rights
given
- Parcels Clause -
- Methodical description of the property
- All the rights of the property and all the rights that emerge from it - rt related wto
land water etc - enumerates all the rights that are being sold along with the
property.
- Relevance has reduced because of S 8 TPA - unless a different intention - all
interests are assumed to be transferred.
- Hence now parcels clause is generally limited to a methodical description of the
property
- How do you describe the property -
- Land records, khasra number, which book registered, entry number, which sub
registrar as registered it

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 - Create a map of the land with direction coordinates - draw what property/road is
there at what side
- The registration act also requires the full description of the property when given
for registration.
- If the location of the property is not clear, don't draft the deed for that client.
- Exceptions and reservations clause -
- Who is t bear what expenses etc
- COVENANTS AND AGREEMENTS CLAUSE - WHERE THE PARTIES ARE
AGREEING TO ENTER INTO ANY OTHER AGREEMENT AS WELL
- Testimonium clauses -
- In witness whereof parties hereto have hereunto set their respective seals …….\
- Basically where the parties sign the deeds,

Sale deed
● Land records can be easily verified on state websites
● S 54 of the TPA defines sale -
○ 54. “Sale” defined.—

"Sale” is a transfer of ownership in exchange for a price paid or promised or

part-paid and part-promised.
Sale how made.—
Such transfer, in the case of tangible immoveable property of the value of one
hundred rupees and upwards, or in the case of a reversion or other intangible
thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred
rupees, such transfer may be made either by a registered instrument or by
delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the
buyer, or such person as he directs, in possession of the property.
Contract for sale.—
A contract for the sale of immoveable property is a contract that a sale of such
property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
● S 55 - rights and liabilities of buyers and sellers -

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 ○ How do you disclose material defects etc - you do so as part of the recitals. The
recitals will also say that all documents have been examined by the parties etc
● S 17 of the registration act - any CDALE wrt immovable property is to be registered.
○ Effect of non registration - here the deed will not be considered as evidence of the
effect of the transaction as a sale. Per S 49 - cannot be tendered as evidence.

● See draft of the sale deed -

● On the stamp paper
○ Description of doc
○ Price of sale/consideration
○ Stamp duty
○ Address of the property
○ Signed at the bottom by both parties
■ Left - sign of the 1st party - in a sale deed seller is always the seller
■ Right - sign of 2nd party - buyer
● Index - reqd in exam
● Need to just mention that there is proper stamping done at the start of the sale deed
● Nature of the document - Sale Deed at Y on X day by and between -
● Describe sellers - ‘Hereinafter called the vendors/seller which shall mean and include all
the legal that arise out of them’
● Describe buyer - ‘hereinafter called the buyers’(say buyer and seller as it avoids
confusion - plain language)
● Signatures
● Then recitals - in exam PUT HEADING RECITALS
○ See how they describe the property
○ How the property came into existence with basic description
○ How the property was transferred from one person to another - history of
transactions
○ Provide a complete history wrt chain of ownership
● Introductory recitals

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 ○ What has been represented by the seller to the buyer on the absi of which the
buyer has agreed to buy - no legal impediments, no legal encumbrances, no
restrictions on future sales etc
○ Generally a buyer calls upon you to frame the sale deed - so through these recitals
you try to secure the buyer's interest to the fullest
○ See how to conclude the introductory recitals - will have the consideration etc.
● Testatum Clause - OPerative part
○ ‘Now this sale deed witnesseth as under’ - shows that testatum has begun
○ 1st thing to mention - Consideration paid + received in full and final settlement
○ Give complete description of the property again - described in Schedule II - ins
schedule II in exam - describe the property - can do it briefly but looks good
○ Operative words on the finality and delivery of possession - that the peaceful
possession has been delivered has to be mentioned.
○ Vendors grant absolute ownership
○ No harmful action by vendors etc
○ No encumbrances will be created in the future
○ No objections
○ Future obligations if any
○ Consideration inclusive of all the collateral deposits made by the prev seller
○ For details see draft
○ APPORTIONMENT CLAUSE - most imp - apportioning liabilities of buyers
and sellers -prior to registration on seller, after registration on buyer
○ Assuring future cooperation
○ Incidental clauses
○ Deed saving clause - the deed shall not be cancelled in case of any errors and
omissions. Wrt errors/omissions on numbers etc.
■ Problems arise wrt - Content of the deed or
■ Legal enforceability of certain provisions - these shall be replaced by
clauses that are valid
■ Any document mentioned in the deed - if that is deemed invalid because
of error - should not invalidate the deed.

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 ● Here the buyer will be entitled to get these removed/changed by
supplementary deed etc
○ ADVISABLE - mention a para wrt jurisdiction as while it is not essential
○ Schedule 1 - Payment details from the Buyers POV
■ Note that everything being from the Buyer’s POV, in the end of the
testatum it is advisable to mention the seller's bank account in which the
money has been transferred on which date.
○ Schedule II - Description of property
■ Draw a map
○ Annexure - Have a page with a detailed description of all the documents attached
- includes original sale deed, subsequent leases, sanction plans, wills, original
mutation letter, death certificate etc. - This will be signed by both parties - show
that it was received
○ Testimonium clause - signed, at X, in presence of the following witnesses - 2
witnesses are preferred - along with their signs, details, addresses etc
○ Don't need to add a clause that says that it is signed without any coercion
influence pressure
○ Towards the end - your name - buyer and seller
○ Advocate need not sign the sale deed.

Commercial Sale Deed

- Where made - date and place
- Name of parties
- Instead of vendor vendee use seller and buyer
- Just say all legal incidents - don’t name all in case you miss
- Recitals -
- History of the property
- What's the purpose of recitals?
- Introduction to the Right title interest (RTI) + Narration of that which
cannot be put in the operative part

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 - History of RTI
- How consensus ad idem got built
- Representations made by one party to the other
- How the parties are seeling the deed - with the terms that are material to
the parties. While terms are there in the operative part - these would not be
explained there, and hence they are to be included here.
- No other agreement, no dues, self acquired property, no notice of default/breach,
no legal impediments

IN EXAM - try to reproduce as many recitals as relevant etc.

Make sure your answers are flowy

IN COMMERCIAL DEEDS
What's different?
- Might be certain rules that apply to the building in which the property is located - no
encroachment, maintenance for XYZ things etc. so these need to mentioned and agreed to
be honoured - these clauses need to be added - see draft for examples -
specificities;requirements will be provided to you in exam if they are to be added.

LEASES
Go through TPA on leases - S 105 onward

- Drafted almost the same as sale deed

- Just article on the first page weil change - A 85 (2) or (3) depends if its more or less than
5 years
- Generally made by the lessors not the lessee - hence most provisions are drafted in favour
of the lessee

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 - IN EXAM - see whose POV from which you need to draft and while being fair be
more aware of whose interests are more important to you - the side who is paying
you
- Recitals - WHEREAS
- Details of property - while not as much detail as sale is required - what is
important is wrt the rights of the lessor that the lessor has that are being given to
the lessee for the limited period.
- Abridged - as drafted from POV of Lessor
- NOW THIS AGREEMENT AS WITNESSETH - starts TESTATUM
- Para 1 - how tenancy should commence - consideration and dates
- Para 2 - address etc
- Calendar to be followed MUST BE ENGLISH CALENDAR - IMP TO
MENTION
- Where conditions wrt time are being mentioned - state that you are following
Indian Standard Time
- Make sure to exhibit/mention those rights that are peculiar to both the parties
- Draft provided - detailed testatum - go through it - figure out what is material and
make sure to include in exam - especially what is peculiar to the parties in the
particular context -
- WHAT RTS YOU ARE GIVING AND WHAT RTS YOU ARE RETAINING
- AFTER TESTATUM - YOu have Testimonium and then foreclose the deed
- 2 witnesses mandatory
- No schedule of property is needed as you are only giving limited rights - not the entire
property - so no need detailed description
- Draft does not have a HABENDUM - ADD IT IN EXAM - the lessee shall have and hold
these rights - and then enumerate what rights - 1, 2, 3, 4. Also mention the rights that the
lessor retains subsequent to the habendum as reservations/exceptions.

Legal notice - 6/5/24

● Embodies rule of fairness

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● Purposes of legal notice -
○ PNJ - opportunity to remedy before adverse action is taken
○ Notification that COA has come up - and what remedy may be availed so that a
suit is not filed
■ Ensure to make not too high claims of action if no remedial steps are taken
- as advocates to whom notice will be served/shared would know the
limits of what you can do
● Therefore use formal language
● Avoid high warnings if you cannot put that into practice
● Concise and precise - keep it limited to the facts of the situation
● Be certain of the legal provision that has incidence
○ Legal notices are a lot of times for compliance - s 80, 138 NIA etc
■ Ensure all statutory requirements are being met
○ Creating a formal record/evidence of communication as of X Date
○ Can be used as evidence to show good faith or bad faith between parties - that
notice given, that no reply gotten etc
○ Creates a COA - that i gave you notice, you didn't reply within given period -
hence COA arises
○ Clarifies the legal intention of a given party
○ Acts as notice to the public/audience
■ THEREFORE V IMP - to keep in mind the audience when you are
drafting the LN. often the audience is not the Addressee but the Lawyers
of the Addressee who know what the law is.
○ No need to incessantly stamp
● 2 theories of language of LN -
○ Simple language - so that the addressee who is not trained in law can understand
○ Language that is understandable by the lawyers - brevity but full of legal jargon
■ Divide the LN into 2 parts
■ 1st part - simple statements - understood by anyone
● Intro
● COA in plain language

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 ● What is your plan
● 4 requirements of LN -
○ Time place nature of remedy sought,
○ Legal authority under which hearing is to be held/will be
approached,
○ statements of specific charges (COA),
○ penalty/action proposed if no reply/not given due
weightage

● See LN in Kunal Kamra Case - from KK to Airlines who banned him - UPLOADED
○ Starts with advocate letterhead - even in exam draft a letter head - contains basic
details - name, designation, office address, contact info of advocate, registration
number,
○ After letterhead - Mention mode of service on right side
■ Email
■ Registered post
■ Speed Post
■ Fax
■ Where serving by hand - need proof of receipt
○ Then mention date of service - IMP - on top of document - plus which file number
in your office contains the record
○ Details, designation, Complete address of Addressee
○ Subject - instead of a long subject - keep in mind purpose - brief details of LN -
don't unnecessarily use adjectives etc
○ keep in mind the audience
○ Line - Define the words ‘my client/s’ - under instructions from and on behalf of
my client - so that as a lawyer you do not become liable for that which is stated in
the notice
○ Note - always email the content of the notice to your client before serving, and
then serve only after getting written positive consent of the client

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○ Para 1 - introduce who your client is
○ Note - even though notice is supposed to be similar to a suit wrt language used etc
- you have a little leeway wrt legal notices keeping in mind the intended audience
○ Para 2 onward - Body of the notice
■ 2 options -
● Style of pleadings
● Slightly informal style -
● 1st half you use simple/plain language ie. without legal jargon.
○ Clarify your intention
○ Explain the problematic conduct
○ Your understanding of the incident
○ What steps you intend to take
● 2nd part will be formal -
○ Quote legal section
○ Per the section your conduct is problematic because of
XYZ
○ No limitation here to Not quote law/cases - feel free to
quote along with detailed explanations
○ Proposed remedy that the other person ought to take up
○ Action in case ramification not done

■ When closing the notice - 2 main requirements

● Advisable to give a reasonable time frame to other party -
otherwise the other party will be like we were just about to comply
when you file a suit
● Reasonable Costs of the Legal Notice so that the money can
actually be recovered - attach the copy of the bill that you are
giving to your client - hence this much is to be paid by you as part
of the remodification - else it will be recovered later as part of the
legal costs

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 ■ Mention that copy of notice is kept in office as office record per record no
XY for future legal purposes
■ Signed by advocates towards the end - and on each page

Power of Attorney 7 May 24

Most frequent document used in conveyancing. It is used to transfer property as well – there SCt
judgments against it.

POA Act and Stamp Act provide an inclusive definition – it includes any instrument empowering
a specified person to act executing it.

It is a delegation of power – you are creating a principal agent relationship. ICA wrt PA
relationship apply mutatis mutandis. Whether it will be revocable or irrevocable is provisions of
ICA. Three sections are important sections 188, 189, 202 Indian Contract Act.

The person who creates it is the Donor and whose favour is Donee. If it is only for a special
purpose – then this deed poll (no sig of done required) – SPA. If there are general powers then it
is GPA. Power given to architect to get clearances would be SPA. But a PoA like “all power to
manage business” then it is GPA. Only after reading can you determine.

We look at recitals to diff bw SPA and GPA – so unlike sale where recitals are only referred to
when intention is unclear, here the recitals control the provisions. Recitals determine the
intention of the parties. So you need to go through the provisions to determine a SPA or GPA.
The name given is also significant – it creates an apparent presumption which can be rebutted by
the actual content of the deed.

Who can execute – person capable of entering into contract; person capable of being beneficiary
can be beneficiary of PoA but you cannot create a PoA in favour of minor – they cannot enter
into contracts for themselves so they cannot act for you either.

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PoA needs to be appropriately stamped – if there is diff between states then you need to pay the
balance stamp duty. Registration is not compulsory. – if you are dealing with immoveable
property via PoA then it is better to register – GPA. In case it is dealing with Immoveable
Property after Suraj Lamps it needs to be registered otherwise hit by s 49 Registration Act.

In this case, signatures of the notary or judge before whom the POA is executed
are required to be authenticated by the duly authorized representative of the
Indian embassy. As per section 3 of the Diplomatic and Consular Officers Act,
1948 notarizing a deed from an authorized officer of the Indian embassy would
be considered a valid notary. Such power of attorney is not required to be
stamped at the time of execution. However, it needs to be stamped within 3
months from the date of receipt of the POA India.

Revocable/Irrevocable – s 202 ICA 1872. Where the agent has himself an

interest in the property which forms the subject-matter of the agency, the
agency cannot, in the absence of an express contract, be terminated to the
prejudice of such interest.

Illustrations
(a) A gives authority to B to sell A's land, and to pay himself, out of the
proceeds, the debts due to him from A. A cannot revoke this authority, nor can
it be terminated by his insanity or death.

(b) A consigns 1,000 bales of cotton to B, who has made advances to him on
such cotton, and desires B to sell the cotton, and to repay himself out of the
price, the amount of his own advances. A cannot revoke this authority, nor is it
terminated by his insanity or death.

1. Operative part controlled by recitals

2. Auth to do particular acts, followed by general words, general words are restricted to
what is ecessary for the perf of the Act
3. General words do not expand powers unless necessary
4. All incidental powers for its effective execution

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No oral evidence can be given for written documents.

Section 2 and 5 of POA Act.

Remedies

73, 73 ICA

Specific Performance

Criminal remedies

406, 419, 420

As donor better to limit and be sure of revocability. As Donnee be sure of what you can do and
incidences under contract act sections.

Suraj Lamps v State of Haryan 2011

Para 2 – it is not an instrument of transfer in regard to any RTI (right title or interest) in an
immoveable property. It creates an agency between grantor grantee – the acts done under PoA
bind grantor. Even irrevocable PoA are not transfer – does not transfer title.

State of Rajasthan v Basant Natha quoted in Suraj Lamps – PoA governed by Ch X ICA – an
agent is formally appointed – to manage affairs of principal – a document of convenience. Acts
in fiduciary capacity.

Title, date, and place

POWER OF ATTORNEY TO ____

TO ALL TO WHOM THESE PRESENTS SHALL COME

I, ______, s/o _________- r/o _________ now employed _____ (hereinafter referred to as
borrower which shall include all of the borrower’s legal incidences)

(RECITALS) WHEREAS :

(a) By diverse deeds and documents more particularly recited in the Memorandum of
DEporsit __ _

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 (b) Whyy is POA being created
(c) WHY created
NOW THIS DEED IS WITNESSETH AS FOLLOWS

I _____ s/o ______, the borrower above named, do hereby irrevocably nominate constitute and
appoint the C

Power given to draft

Power given to sign

To draft incidental and supplemental documents

To appoint on eo more substitutes to do execute and perform all or any of the acts deeds matters
and things aforesaid

This could have been an habendum as well instead of the testatum

AND I DO HEREBY CONFIRM AND AGREE TO RATIFY

IN WITNESS WHEREOD I have put my hand to this writing this day of ____ 200

Signed, Sealed and Delivered by

The within named _____-

In the presence of

(1)

(2)

POA is required to by notarised and stamped by need not be registered. Minimum stamping in
Delhi 100 and Mumbai 500.

The second format is a sale via POA.

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WHEREAS I have agreed to sel my property situate at ___ and which is more particularly
described in the Schedule hereunder written, by an agreement for sale dated __ entered into with
Mr -__ (Parcels clause) [this is not sale but this is why I am creating the POA]

Signing Auth reason

(be careful of the language)

VAKALATNAMA

Welfare stamp in delhi has to be Rs 25 in all vakatnama in Delhi.

MEMO OF APPEARANCES (in SCt)

Testamentary Succession - will - 8/5/24

TAKE NOTES FROM PREV CLASS

● Definition - Black's law dictionary -

○ Living will - made when you are capable of expressing your desires - withdrawal
of medical support in certain circumstances
○ Codicil - supplement/addition/amendment to a will. All formalities applying to
the will apply to the codicil. Is a short will
● On basis of benefactors -
○ In officious - when foreign parties get benefits of the will to the ouster of family
○ Officious - when the testament is benefiting those who would have benefited by
normal laws of succession
● Indian Succession Act
○ 2 (h) - will - “will” means the legal declaration of the intention of a testator with respect
to his property which he desires to be carried into effect after his death

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 ○ 2 (b) - codicil - “codicil” means an instrument made in relation to a Will, and
explaining, altering or adding to its dispositions, and shall be deemed to form part of the
Will
● Imp terms (also defined under ISA)
○ Administrator - 2 (a) - “administrator” means a person appointed by competent
authority to administer the estate of a deceased person when there is no executor;
■ Normally the executor is appointed for division of property after the death
of the testator.
○ Executor - 2 (c) - “executor” means a person to whom the execution of the last Will of a
deceased person is, by the testator's appointment, confided
○ Probate - 2 (f) - “probate” means the copy of a will certified under the seal of a court of
competent jurisdiction with a grant of administration to the estate of the testator;
■ Once a copy is certified by court - it can be administered in the mechanism
of the will - this order of the court to this effect is called probate.
■ After the death of the testator it is incumbent upon you as Executor to
obtain Probate of the court wrt that will.
■ Court will ask for witnesses to verify the will, will give public notice etc.
before giving such probate order allowing for the will to be administered
■ Necessary for immovable property being bequeathed by will
● Relevant sections of ISA -
○ 59 - Every person of sound mind not being a minor may dispose of his property by will.
■ Illustrations
(i) A can perceive what is going on in his immediate neighbourhood, and can answer
familiar questions, but has not a competent understanding as to the nature of his
property, or the persons who are of kindred to him, or in whose favour it would be
proper that he should make his will. A cannot make a valid will.

(ii) A executes an instrument purporting to be his will, but he does not understand the
nature of the instrument, nor the effect of its provisions. This instrument is not a valid
will.

(iii) A, being very feeble and debilitated, but capable of exercising a judgment as to the
proper mode of disposing of his property, makes a will. This is a valid will.

○ 62. Will may be revoked or altered.—A will is liable to be revoked or altered by the
maker of it at any time when he is competent to dispose of his property by will.

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○ 63. Execution of unprivileged wills.—Every testator, not being a soldier employed in an
expedition or engaged in actual warfare, 1[or an airman so employed or engaged,] or a
mariner at sea, shall execute his will according to the following rules:—

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some
other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him,
shall be so placed that it shall appear that it was intended thereby to give effect to the
writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the
testator sign or affix his mark to the will or has seen some other person sign the will, in
the presence and by the direction of the testator, or has received from the testator a
personal acknowledgment of his signature or mark, or of the signature of such other
person; and each of the witnesses shall sign the will in the presence of the testator, but it
shall not be necessary that more than one witness be present at the same time, and no
particular form of attestation shall be necessary.

○ 74. Wording of wills.—It is not necessary, that any technical words or terms of art be
used in a will, but only that the wording be such that the intentions of the testator can be
known therefrom.
○ 75. Inquiries to determine questions as to object or subject of will.—For the purpose of
determining questions as to what person or what property is denoted by any words used
in a will, a Court shall inquire into every material fact relating to the persons who claim
to be interested under such will, the property which is claimed as the subject of
disposition, the circumstances of the testator and of his family, and into every fact a
knowledge of which may conduce to the right application of the words which the testator
has used.
■ This is stuff that the court will do before issuing probate
■ See illustration 2 - A, by his will, leaves to B “my estate called Black Acre”. It may
be necessary to take evidence in order to ascertain what is the subject-matter of the
bequest; that is to say, what estate of thetestator’s is called Black Acre.
○ To clarify the above - people make a letter of wishes along with a will - only
requires signature of the testator and not witnesses - mentions the detailed
intention and reasoning of the testator.
○ 81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency.—Where
there is an ambiguity or deficiency on the face of a will, no extrinsic evidence as to the
intentions of the testator shall be admitted.
■ Illustrations - (ii) A bequeaths 1,000 rupees to............leaving a blank for the name of
the legatee. Evidence is not admissible to show what name the testator intended to insert.

(iii) A bequeaths to B .......................rupees, or “my estate of........................” Evidence is

not admissible to show what sum or what estate the testator intended to insert.

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 ■ Here evidence cannot be given to cure such types of ambiguities or
deficiencies
○ Also IMP - 89. Will or bequest void for uncertainty.—A will or bequest not expressive
of any definite intention is void for uncertainty.
■ Illustration
If a testator says “I bequeath goods to A,” or “I bequeath to A,” or “I leave to A all the
goods mentioned in the Schedule” and no Schedule is found, or “I bequeath
‘money,’‘wheat,’ ‘oil,’ ” or the like, without saying how much, this is void.

■ Only those parts that are completely ambiguous/don't show intention -

only those parts become void - not the entire will
● Therefore need to be very meticulous wrt what you are dividing and to who you are
giving what you are dividing
● Letter of wishes -
○ To show intent of will
○ To include stuff that you cannot include in the will as ideally you should keep the
will as short as possible. Therefore stuff wrt intentions on how to conduct a
funeral, not inform XYZ of death etc can be added in the letter of wishes but not
in the will itself.
○ The reasoning why X, Y property is given To A, B person respectively is to be
given in the letter of wishes
○ Companies given to XY - directions on how the company should be run ie.
principles to be followed etc can be mentioned here.
● Essentials of will
○ Inducement
○ Executor
○ Identification of assets
○ Beneficiaries
○ Respective shares
○ Manner of disposition/liability
○ Funeral exp
○ Statement of soundness of mind
○ Statement of compliance with municipal laws etc

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● DRAFT - DRAFTED BY DINESH SO STICK TO IT I THINK
● Usually the testator is of a very advanced age and often propose witnesses of the same
age bracket - by the time probate comes the witness may also pass away - this becomes a
problem - try to make younger people witnesses who will be available when the probate
is called by the court - also call for natural witnesses - eg resident of the same locality -
you should have a story about why this person became a witness
● Components (look at yellow highlights on Dinesh’s draft):
○ Date + place
○ Who is the testator + other identification details
○ Boilerplate statement - life is short and uncertain … - not necessary but usually
added - this statement is mostly related to ‘purpose’ - so could be something like
“testator is in advanced stages of life therefore writing this will” types
○ Nullify all previous wills
○ Read and understood will + details of translator etc if any
○ Sole owner of the property - describe property
○ To who are you giving property - their details
■ Note - will doesn't need compulsory registration., but there are benefits of
registration
○ On motive why issued in favour of X - double edged sword - if mentioned can be
used by an objector of will to show undue influence. Hence better to avoid, add it
in a letter of wishes
■ In case you add a statement on motive- ensure that it cannot be sued in
such a way.
○ Precise details of what property, what portions given to who - in case of schedule
- have it attached with the will
○ NEED statement of doctor - person is of sound mind and judgement and can
execute the will. Better to make the doctor also a witness, but an issue with this is
they become an interested witness. So dekhlo up to you.
● Letter of wishes - no draft given - need to draft in given
○ Letter to indicate the powers and directions - but no legal obligation/binding trust
○ Written to the administrator of the will

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 ○ Divides the particular property - its division - to who - reason
○ Only the sign of tetstor
○ Confidential doc

Sumit Pushkarna Lecture - 9/5/24

Sample Question and will provide revision slides
Topics:
1. EIC, Cross, and Re examination - sequence, objectives
2. For a cross - is this a leading question, what is a leading/non leading/multiheaded/open
ended question
3. EIC -
a. Purpose - to establish that part of your case that your witness can comment on, to
establish evidence in a way that the same is memorable and persuasive, to insulate
the witness from attack in the cross
i. Where witness has a bad character, in your EIC you address/introduce
these elements so that the cross will be less eeffcetive.
b. Q - who examines the witness
c. Points to keep in mind during EIC -
i. Must know answers to Qs asked
ii. Short sharp simple clear Qs
d. How to initiate EIC -
i. Ease in your witness
ii. What when where how - open ended questions - allow the witness to
elaborate
e. Tyoes of Q -
i. Open ended
1. Can give long answers
2. Elaborate
3. Helps overall story to be given
ii. Closed

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 iii. Compound
iv. Leading (you don't ask leading qs)
4. Cross Examination -
a. 4 purposes of Cross
i. Attempt to destroy evidence
ii. Weken opposing evidence
iii. Elicit new and helpful material that is being hidden
iv. To attack and undermine the credibility of the witness
b. Summary of points
i. All cross exams should be short and clear
ii. Do not derail witness
iii. Do not return to the point after a helpful answer is received
iv. Leading questions may be allowed
v. Don’t unnecessarily attack the witness - do not presume dishonesty
vi. No need to cross examine when witness does not damage your case
vii. Never repeat questions
viii. Ask your best questions first
ix. Do not ask omnibus/multi-headed questions
x. Insist on an answer to your question - do not give up without an answer
xi. Do not be rude to a witness
xii. Contradict one witness with the testimony of another
xiii. You may confront a witness with documents etc [ no need to mention case
law - you are expected to know concepts ]
5. Re-Examination
a. Summary of points
i. Not mandatory
ii. When witness is examined after cross examination by the party which
called the witness it is known as re-examination
iii. It is required only in specific situations
iv. Cannot ask leading questions in re-examination
v. Do not repeat questions which have been asked in examination in chief

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FOR THE EXAM!!!!
- The task is not to make a cross-examination to demolish the case - the limited purpose is
to test whether you know the concepts of examination, cross, re etc and apply this
practically
- The question is like a fact situation - motor vehicle accident
- The accused claimed that he was not drunk - smell of alcohol was from a whiskey bottle
that broke during the accident
- Types of questions
- Who will conduct the examination in chief - accused lawyer or prosecution
lawyer? - answer is the latter
- Purpose of examination in chief?
- Should the lawyer ask open ended or close ended questions?
- The above questions are simple one markers - dont go into facts or
elaborate theories - one line answers (answer plus brief reasons)
- What is a leading question in a cross examination?
- Should the witness be asked multi-headed questions
- Second Question
- Fact scenario + Questions
- Whether the above question is a leading question?
- Can a leading question be asked in chief/re
- Write one question each for Chief/Cross - write very simple questions and avoid
controversial areas - no presumptions/assumptions - open ended questions - avoid
leading questions or anything that may be close to a leading question
- Chief
- What happened on the night of ___
- What were you wearing on ___
- Where were you on ____
- Cross
- You almost caught x by hand didnt you?

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 - Explain chief/cross/re - no need to know the evidence law sections (will be
removed)
- Look at S. 137 + 138 IEA
- Cross/re is not mandatory
- Answer key

NOTE IMP - Leading qs - what to ask, when to ask - what are the kind of questions that
can be asked

Pushkarana no longer framing - its dinesh - so dekhlo

Mortgages - Special Lecture

CHECK ASH DRAFTS
2 types of loans - secured and non secured.
Depends on whether security is given

Different types of mortgages - s 58 TP Act

- Simple mortgage —Where, without delivering possession of the mortgaged property,
the mortgagor binds himself personally to pay the mortgage-money, and agrees,
expressly or impliedly, that, in the event of his failing to pay according to his contract,
the mortgagee shall have a right to cause the mortgaged property to be sold and the
proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-
money, the transaction is called a simple mortgage and the mortgagee a simple
mortgagee.
- English mortgage - transfer of interest in property- mortgagee gets title documents
- Usufructuary mortgage - possession is given to the mortgagee - mortgage works
towards deriving benefit out of the property
- By deposit of title deeds - does not require a formal deed and there is no requirement of
registration

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 - Anomalous mortgage - does not conform to the above

Mortgage deed - contract between parties - hence all the parts need to be included
All mortgage deeds - registered - stamp duty involved

Benefits of registration -
- Can be used as evidence
- Etc

While executing/drafting -
For executor - ensure right of redemption is intact
For bank/lender - need to ensure that right of foreclosure - power to sell off property when
default - make sure intact

DRAFTING -
- Stamp paper
- Duty amount in bottom
- 5L on 30 cr loan
- Its like any othe rcontrract - so essentials need to be met
- Heading
- MORTAGGE DEED (wu\ithout possession) - no need to mention here, the terms
will state if there is possession
- Description of parties
- Recitals
- Start with whereas
- Defines intention of parties
- What is the transaction under which it is being executed
- Clauses-
- Definitions
- Define what is an event of default for the deed -where bank cvan sell property etc
- Covenant to pay

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 - What does the mortgager have to pay to the mortgagee
- Provision for redemption
- Rt that a mortgagor has to protect in the deed - as mentioned earlier
- Security etc
- Exclusive mortgage and charge -
- Need to give a representation/warrant that it's the first and exclusive
mortgage + holder has the necessary title to the property
- Habendum -
- What all is being given in the conveyance deed
- ‘To have and to hold’
- Schedule - details of the property

Promissory Note
Essentials - Promissory note - take picture from nadia
Test - if an instrument is a PN or not -
- Intention of parties
- Document usually considered as a PN
- Mere promise to pay not a PN without the above two

PN Draft - Take picture from Nadia

- Essentials of a PN -
- Must be in writing
- Signed by maker/drawer
- Unconditional promise to pay (cannot be subject to XYZ conditions)
- Sum of money - certain (cannot be a PN to deliver goods - always wrt money)
- drawer/borrower and drawee/payeemust be certain/determined persons

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Cross examination
CROSS EXAMINATION25 APR 24

The point of CE is to get the 5% of facts over which there is disagreement. Know where to stop

when asking questions.

1. Start with the underbelly – go for the jugular.

2. Don’t give up without getting an answer

3. No hostility with neutral witness

4. Best weapon is previous inconsistent statement

5. The best answer is why

Don’ts

1. Don’t comment on the witness answer.

2. Most witnesses are dishonest – just unkowledgeable, honestly mistaken, or forgetful.

When in a hole stop digging.

3. No omnibus and multiheaded questions

In re-examination – you can go beyond the cross examination. Re-examination is after cross

examination and the point is to explain CE but when RE not limited to CE.

1. No leading questions

2. Ask questions to which you have answers

3. Short

4. Don’t repeat questios during re-examination which has been asked during EIC.

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The US has trial advocacy programs and big competitions in trial advocacies.Then in the UK –
as part of training as barrister or solicitor you have basic techniques. Third is Aus advocacy
institute which designed how to teach barristers in England. All three jurisdiction have some
similar points. The law is in Evidence Act and order of examination is procedure. But skills.

CE – gets access to examine the witness of the EC and try to elicit information.

EC – estb part of case on which witness can comment. Clear, persuasive, and memorable. Be
very slow so that every word being stated can be noted. [not that important in civil as there are
affidavits – but in crim there is. Value of EC without CE is less and EC and CE should ideally be
on the same day] Therefore it is important that you note the exact text.

Know the answer to the question you are asking in EC – don’t surprise your own witness.

Short, crisp questions. No multiheaded questions. Make a list of good facts and bad facts and ask
questions on the good facts. Start with simple questions – who are you, where do you work –
gets the witness comfortable. What, when, where, why, how, who, please describe, please tell the
court. You ensure that the witness has not missed out anything and these are openended
questions. You want the witness to tell the entire story to the court – coaching is not always
unethical – you are not coaching him to tell a lie. You coach to instruct them what is relevant to
mention and what to talk about. Please do not go outside the scope – this is not tutoring. Judge
wants to hear the witness and not the lawyer. So it helps maintain relevance.

Four types of questions are

1. Open ended
2. Closed questions (yes or no questions – limited answers possible)
3. Compound questions – generally to be avoided. When more than one fact is being
tried to be put into the question
4. Leading questions. – suggestion/answer in the question itself
OPE – want witness to tell the entire question. CQ – control the witness and have specific
answer. – avoid in EC: cannot lead without permission

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In EC – avoid asking the same question like “what happened next”. Use looping – include part of
the answer in the next question. Final question – let the witness finish on a strong note and let
him estb the credibility. Strongest at the end of the story.

Transition questions – a very important process. First it is preparing then action then get him into
a particular mode. How do you build a witness – you create transition questions. You move him
from one topic or evidence to another. This is a useful way to structure the testimony. Lets say
you want to elicit two pieces of info – witnesses presence you might ask “did there come a time
when something unusual/unexpected happened while you were sitting in the waiting room”

Piggy back questions – like looping – include in your question fact or facts already elicitied.
Provides context and important way of emphasizing, getting clarity, and transitioning. In EC you
cannoy suggest you ask

Leading question is one that suggests or tends to suggest its own answer. It often assumed a fact
that has not yet been established. It sometimes calls for a ‘yes’ or ‘no’ response.

One way to CE – you go for the jugular, you attack his character, or you build up and then come
to the meaty attack. “what she standing three feet away from you” “were in you in delhi on 5 th
may 2014”

Non leading questions “where wer e you on the fifth of may” “what did you see” “how far away
was she”

Preparing your body for better speech for long trial. Warm up. Neck and shoulder exercises.
Counting helps you calm down to communicate better. Anxious ticks like leg bouncing should
be controlled. You give information in a way that is palatable to the audience. How fatigued the
judge is – it is important from pov of TrialAdvocacy. The gloval standard is going beyond the
classroom.

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14/5/24 - TAKE CLIENT COUNSELLING
NOTES

CLIENT COUNSELING (SP) 14 MAY 2024

Counseling is not part of legal duty but it is an important part of moral or ethical duty. In other
jurisdictions like UK, it is more of a mandatory procedure. There are a lot of clients suing for
wrongful advice.

Counselling means – it has a very general connotation. A lawyer vs an employee of an org. A

lawyer just gives opinion or advice on specific cases. In a corporate setting you may have to take
decisions on behalf of the org. You will decide on advice rendered to you but it is your decision.
A lawyer at the beginning of the process, middle of the process, and when the case is over there
is a counselling process.

Beginning is the most sensitive and complicated process – 1 st meeting: client speaks and you
listen and make notes; 2ndmeeting: you raise queries after preliminary study of the case and take
notes and write concern areas, experts to be consulted and choice of remedies; (the decision on
remedy tells us the fora which have a bearing on costs. Choice of remedies will be indicated to
the client.) 3rd lawyer speak on remedies and choices of remedies and counselling may take
place. Often confused only with ADR counselling. (in some juris it is only about ADR – but here
you are talking about all kinds of alternatives.

The client decides because you want to avoid blame. Legal remedies, alternative remedies, you
tell them about all of this. Some statutes may mandate ADR as well.

Aim and Objectives:

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 · Giving full range of options to client

· Allow him time and information to consider options

· Invite questions and comments for clarity [you have to give him time – some questions
may be stupid. Explain implications in a simple form. In a lot of places it is a standard
process.]

· Allowing making of choice without inappropriate assistance [you may have unethical
clients who want to approach judges, or the PP. In India, action against lawyers is not
common at all. Counselling started abroad so that the client knows everything to protect the
lawyer. Here it is done in an informal setting unless the client is govt or big company want
opinions in a written manner.

· Checking understanding of client response

· Give client time to estimate deadline to decision

It is not just taking care of the client initially – you have to give time to them to take a decision.
If someone comes to you for a divorce case and you have seen a judgment that goes against your
client? (a) you don’t tell him and go through litigation and embarrass the client in court. Don’t
give too many options as it may cause decision paralysis.

Talk about fees beforehand.

Importance of Counselling

· Financial implications for Court Fee, expenses, etc. [process fees – some unethical
lawyers would take fee in the name of expenses of serving summons and travel expense. –
actual expenses you have to explain]

· Financial implications for lawyers’ fee [lawyers are very costly these days. Some lawyers
will quote lum sums for actions. Some lawyers are on retainer – on those kind of cases you
have to give an estimate

· Possibility of mediation settlement – Eg Commercial jurisdiction, Matrimonial cases,

Property disputes [even in an ongoing arbitration you can be referred to mediation.
Sometimes the funds of litigation run out and clients become more amenable to mediation.
At every stage of the case –

Who does the session on Counselling?

· Outside experts may be involved: E.g., medico legal case

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 · A case of Forgery – A handwriting expert may have to be consulted and a forensic
scientist

o Each page has to be signed of long contracts. So client may deny signing a
specific page of the contract. Not part of the original contract. Those kind of
cases may require a handwriting expert. You have to get a preliminary
opinion. You have to tell him these people may be involved.

Who deoes the session on Counselling

· In DV – a psychiatrist, family counsellor may have to be consulted

· In case of an economic fraud, a forensic auditor or a CA may have to be consulted

· Other than this the consultation with domain experts may be required. E..g, Trademark
[this often happens informally by consulting colleagues. But the proper way is to advice the
client on what part of the case you can handle and where you may bring in an expert]

Tasks during legal counselling

· Making a comparative chart on different options and remedies (even at pre-lit stage for
clarity)

· Making of a draft opinion: it is draft as the first few meetings are fluid. Client may not
remember full facts. Be careful that the points on which you predicate your opinon should be
very very clearly listed out. People tend to just read conclusions [It may not be proper to say
that the client cannot afford this option; instead write that the financial implication will be
adverse]

· Collecting basic judgment on the main legal issue of the case nad making a headnote
based summary as applicable to your case [take the latest judgment and make a relevant note]

· Providing financial estimate charts of fee and costs

o Structure, how much of what

· Flag various aspects on different and parallel remedies. In certain matters mediation may
invariably be a better option.

The idea is not only to save the client but giving proper advice. People who will remain with you
for a long time – you have to factor in all these things.

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15/5/24
For exams -
- Structure
- Various parts
- Introduce parties - with nomenclature
- Presentation
- Don't narrate the factual matrix as it is
- Content

Module 5 questions -
- Reasoning based
- Client counselling
- EIC/Cross

If facts are clear - don't change them. However particulars can be embellished - if address is not
given you can write it. But don't do it for names - if names not mentioned leave it blank.

For parcels clause in conveyancing - use the language of s8 - operation of a transfer. - reproduce
the language.

Give headings for all classes of recitals etc - can do it in the margins.
Unless examiner exempts donr exclude asnythung

Covenants - special conditions agreed between parties - need to be drafted

Also where one part undertakes something to the other - to pay x amount for something - then
add this

Testimonium - clause wrt testimony - In witness whereof the parties hereto have signed this day
on the date above written

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Trust Deed - Pushkarna - 16/5/24
Draft - NLUD Alumni Assn
● Don't combine name of deed and date and introductory para - keep data and place para
separate
● Why do you create a trust?
○ When you want X to be used dor a few beneficiaries and be managed by an
independent board - to continue even after death/retirement - operate in perpetuity
or till purposes are met
○ Transfer of property - from owner to another - for benefit if 3rd person
○ Needn't be real estate, can be any valuable asset
● Who can create
○ Anyone
● Public trusts - by state legislation/indian trust act if no state legislation
● Parties-
○ Author
○ Trustee - board who manages
○ Beneficiary
● Objectives
○ Must be created for a lawful purpose
○ If purpose is unlawful trust is void
○ Section 4 of the act tells you all purposes are lawful unless forbidden by law,
defeats law, forbidden,immoral, involves injury etc.
● Req for registration
○ Stamp paper
○ Passport pic
○ Identity proof of 2 trusteed and 2 witnesses
● Advantages
○ Neutral body managing a thing - so that it can be used for a specific purpose
○ Tax exemptions (for charitable or religious trusts)
○ To look after family welfare

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 ○ To protect assets from transfer/division to outsiders
● DRAFTS
● PM Citizen Assistance and Relief in Emergency Situations Fund
○ Start - title - deed of trust
○ This deed of trust is executed on at by - PM herein referred to as settlor
○ WHEREAS :
■ In points A, B, C
■ Background
● Why deed made - purpose of the trust in the short and long term
● The settlor is hereby desirous of settling a public charitable trust
for the above
■ This deed - powers, functions, of board
○ Now - 1, 2 ,3
○ Declaration of Trust
■ Mention the initial corpus
○ Name and head office
■ Trust known as - XYZ, office at Address, Board of Trustees at location of
Head office
○ The objects
■ Trustees to hold the trust and trust property and use for objects
■ Primary objects
● Support or relief
● Financial assistance, grants
● Any other activity not inconsistent with objects
■ May be utilised toward the following purposes -
● Public Health
● Pandemic
● Calamity or distress
○ Additions to trust property -
■ How incremental value in addition of initial corpus is going to be attained
and how it is to be utilised

166
 ● Voluntary contribution, gifts, grants in cash or kind
● companies/persons in or outside india
● Cheque etc
● No conditional contribution
■ Trust - incorporated for Charitable purposes - not created under
constitution/law made by parliament or state legislature and is not public
fund even though the PM is the settlor
■ Not owned controlled or financed by government - central or state
■ Board of trustees - composition - for admin convenience - does not result
in governmental control in the functioning of trust.
■ Hence intention - does not want it to be like a government fund.
○ Board of Trustees
■ Number
■ Who - PM, Home, Finance minister
■ Shall hold office until the person succeeds the office, who will now be
trustee
■ Nomination
■ PMO - admin and secretarial support
○ Advisory board
○ Powers of trustees
■ Different in every trust deed
○ OBJECTIVES
○ Investments
■ Liberty to invest trust property, surplus funds, other moneys requiring
investment
■ In what manner
■ Lawful to accumulate trust income
■ To enable utilisation of trust properly
■ Can make profits
○ Records accounts audits
■ To be maintained by trustees per req of law and to ensure transparency

167
 ○ Responsibilities of the trustees
○ Limit on trustees liability + indemnity
■ Responsible for own acts and defaults and not that of others
○ Expenses and fees
○ Powers to amend
○ Dissolution
■ On the occurrence of following event - boards of trustees to decide -
dissolve
● Such as failure of objects, satisfaction of objects, impossible to
perform objects
■ On dissolution - property will go to another trust - will not go to
trustees/revert to the settlor
○ Signed By settlor
○ Rules
○ Schedule

Second Trust Deed Draft

● Some entity making a bunch of losses - so the government wanted to corporatise it by
introducing some private equity
● Whereas
● Purpose - superannuation fund
● Trustees
● Only 15 clauses
● Initial corpus
● In witness whereof -
● Signed and sealed in the presence of
● SEPARATE RULES FOR TRUST - IMP - IF SPO REQD
○ Defines
○

168