Drafting, Pleading and Conveyancing

Unit – I: Fundamental Rules of Pleadings

1. Plaint Structure

Drafting is an essence of any litigation ‘Legal Drafting’ can be defined as the crystallization and
expression of a legal right, privilege, function, duty, or status in a definitive form.

In CPC plaint is a formal written document submitted by a plaintiff to initiate a civil lawsuit in a
court of law. It serves as the initial step in commencing a legal action. The plaint contains
essential details, including the parties involved, facts giving rise to the cause of action, the relief
sought and jurisdictional information.

It helps define the scope and purpose of the lawsuit and provides the court with the necessary
information to proceed with the case. The contents of the plaint in CPC are governed by specific
rules and guidelines outlined in the CPC to ensure legal clarity and fairness in civil litigation.

Provisions of Plaint in CPC

Order VII of the Code of Civil Procedure is all about the “plaint.” In this order, you’ll find
different rules that cover various aspects of what should be in a plaint. Here’s a breakdown:

 Rules 1 to 8: These rules explain what specific details should be included in the plaint.

 Rule 9: This rule tells us how the court should admit the plaint.

 Rules 10 to 10-B: These rules discuss what happens if the plaint in CPC needs to be returned
and how parties should appear.

 Main Rules 11 to 13: These rules lay out the situations in which the court can reject the plaint.

Section 26 of the Code of Civil Procedure is important because it says that every lawsuit has to
start with the presentation of a plaint in CPC or in a way that the law says. So, it’s clear that a
plaint is essential when you want to begin a case in a civil or commercial court.

Contents of A Plaint

A plaint in CPC is a crucial legal document that must contain specific information; otherwise, it
won’t be considered valid. These necessary details are outlined in Rules 1 to 8 of Order VII of
the CPC. Here’s a breakdown of what should be the content of a plaint in CPC:

 The name of the civil or commercial court where the lawsuit will be filed.

 Information about the plaintiff, including their name, address and description.

 Details about the defendant, including their name, residence and description.

 If the plaintiff has any health issues or disabilities, these should be mentioned.

 The facts that give rise to the cause of action and where this cause of action occurred.
  Facts that help determine the court’s jurisdiction.

 Information about the relief or remedy the plaintiff is seeking from the court.

 If the plaintiff wants to set off a portion of their claim, the amount allowed should be
stated.

 The value of the subject matter of the suit, not just for jurisdiction but also for court fees.

 Verification by the plaintiff under oath.

These details make a plaint in CPC essential for starting a lawsuit in civil or commercial courts
and it remains significant throughout the legal process. Additionally, Rule 2 of Order VII
specifies that the plaintiff must state the exact amount of money they seek from the defendant
and Rule 3 requires a proper description of immovable property when it’s involved in the case.

Form and plaint structure

A plaint in the Code of Civil Procedure (CPC) must follow a specific format, consisting of
three essential parts: the heading and title, the body, and the relief claimed. The heading and title
begin with the name of the court, followed by the details of the parties involved, such as their
names, addresses, and identification information. If any party is a minor or of unsound mind, this
must also be stated. The title of the suit should briefly describe the reason for the case and
indicate the court's jurisdiction.
The body of the plaint is divided into two parts: the formal part and the substantial portion.
The formal part includes the date of the cause of action, which is necessary for determining
whether the lawsuit falls within the limitation period. It also establishes the court's jurisdiction
by mentioning the facts that justify its territorial and pecuniary jurisdiction. Additionally, the
value of the subject matter must be mentioned, as it affects both jurisdiction and court fees. If
any party is a minor, this should be stated, and if the plaintiff represents others, this must also be
indicated. If the case is filed after the limitation period, reasons for claiming exemption must be
included.
In the substantial portion, the plaint should present all the relevant facts that form the basis of
the lawsuit, demonstrating the defendant’s interest in the subject matter. If there are multiple
defendants or plaintiffs, their individual liabilities or causes of action should be clearly specified.
Finally, the relief claimed outlines what the plaintiff is seeking from the court, such as
compensation, injunctions, or specific performance. This section must be detailed and precise, as
the claims cannot be amended later through oral pleadings. At the end, the plaint must be signed
and verified by the plaintiff or a representative, ensuring that the facts are true and credible, with
the verification done before a competent authority.
IMPORTANCE OF DRAFTING IN LITIGATION:
 It helps in meeting the client’s goal and carry out the client’s instructions.
 It helps in maintaining the standard of care which protects the interests of the client.
 It helps in accurately addressing all the relevant legal and factual issues.
 Precedents form an essential part of drafting and the same can be very helpful in
litigation
Meaning of Pleadings
Pleadings are statements in writing drawn up and filled by each party to a case stating what his
contentions will be at the trial and giving all such details as his opponent needs to know in order
to prepare his case in answer.

Pleadings

 Order VI Rule 1, Code of Civil Procedure 1908, provides that, Pleading‟ means plaint or
written statement.

 Order VI Rule 14, Code of Civil Procedure 1908, provides that “Every Pleadings shall be
signed by the parties and his pleader (if any)”

 Order VI Rule 15, Code of Civil Procedure 1908, provides that “Every Pleadings shall be
verified at the foot by the party or by one of the parties pleading”.

What is pleading?
 Pleading is the beginning stage of a lawsuit in which parties formally submit their claims and
defenses. The plaintiff submits a complaint stating the cause of action -- the issue or issues in
controversy. The defendant submits an answer stating his or her defenses and denials. The
defendant may also submit a counterclaim stating a cause of action against the plaintiff.

 Pleadings serve an important function of providing notice to the defendant that a lawsuit has
been instituted concerning a specific controversy or controversies. It also provides notice to
the plaintiff of the defendant's intentions in regards to the suit.

Background:-
 Old common law rules of pleading were complicated and rigourous. Meritorious complaints
were often thrown out of court for technical flaws in form rather than substance. Today, in
most if not all states, a pleading must no longer conform to archaic formats but may be a
simple petition or complaint setting forth the relevant facts and asking for a remedy.

Pleading in a Suit:-

Pleading is defined in the code of civil procedure in O 6, RULE 1.as given below :-

"pleading" shall mean plaint or written statement."

 Order 6 Rule 2 says pleading to state material facts and not evidence.

 Order 6, Rule 2 (1) every pleading shall contain and contain only a statement in 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.
Basic principle of pleading is that "pleading should refer to fact alone, it should not be
argumentative averment."(M/s strong construction v. state of up. AIR 2005 ),

Object of Pleading:-
 It is well settled position of law that the whole object of pleading is to give fair notice to each
party of what the opponent's case is, and to ascertain, with precision, the points on which the
parties agree and those on which they differ, and thus to bring the parties to a definite issue.

 The purpose of pleading is also to eradicate irrelevancy.

 In order to have a fair trial it is imperative that the party should state the essential facts so
that other party may not be taken by surprise.

 The parties thus themselves know what are matters left in dispute and what facts they have to
prove at the proceeding and are thus given an opportunity to bring forward such evidence as
may be appropriate.

 The main object of pleadings is to find out and narrow down the controversy between the
parties.

 Contention which are not based on the pleadings cannot be permitted to be raised either at
the time of arguments or at the appellate stage."The New India Assurance Co. Ltd. vs.
Surender singh & others. (HC) UAD 2007

Case Law :

In Jitu Patnaik vs. Sanatan Mohakud & Others, 2012 , the Supreme Court explained
the difference between "material facts" and "particulars" in legal cases. Material facts are the key
facts that must be clearly stated by either the plaintiff or defendant to support their case. These
facts form the foundation of the argument. On the other hand, particulars are extra details that
help explain and clarify the material facts but aren't as essential. The Court pointed out that if a
party fails to mention even one material fact, the case can be dismissed. However, missing
particulars won't necessarily lead to dismissal but could affect how the case is presented. This
decision shows how important it is to properly state all necessary facts for a fair trial.

In Union of India vs. Ibrahim Uddin & Anr, 2012 (2) U.A.D. 566 (SC), the Supreme
Court held that courts cannot go beyond the issues mentioned in the pleadings. No party is
allowed to present evidence on a point that was not raised in the pleadings. If such evidence is
introduced, or if the court makes a finding on a fact that wasn't raised, that evidence or finding
must be disregarded. This ruling reinforces the principle that legal arguments and evidence must
be strictly based on what has been pleaded in the case.

Description of Parties:-
 There are two types of pleading mainly in a suit:
1. Plaint
Order 7 Rule 1 of civil procedure code says that plaint shall contain the following
particulars:-
1. The name of the court in which the suit is brought.
2. The name, description and place of residence of the plaintiff.
3. The name, description and place of residence of the defendant, so far as they can be
ascertained.
4. Where the plaintiff or defendant is a minor or a person of unsound mind, a statement to that
effect
5. The fact constituting the cause of action and when it arose.
6. The fact showing that the court has jurisdiction;
7. The relief which the plaintiff claim;
8. Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount
so allowed or so relinquished :and
9. 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. Written Statement:

A 'defence' called the written statement, in general this is a reply of plaint ,in which defendant
deny or admit the each and every allegation or facts given in the plaint. Denial or admission must
be Para wise and clear.

 It is settled law that denial for want of knowledge is no denial at all. The provisions contained in
Order 8 Rule 5 require pleadings to be answered specifically in written statement.

 Muddasani venkata narsaiah versus Muddasani sarojana . In the written statement

defendant can put his case also under the heading additional plea, and can states new facts or
ground which is necessary to defeat the opponent. If defendant want to put his own claim against
the plaintiff, he can put it by way of set- off and counter claim u/o 8 Rule 6 and 6A of C.P.C.
NOTE: -The facts which remain unanswered by the defendant, it will be presumed that the said
fact was admitted by the defendant. In general, the fact which is taken to be admitted need not be
proved. Pleading must be unambiguous clear and correct. Carelessly prepared pleading can spoil
the suit.
Time for Filing of Written Statement:
 Order, 8 Rule 1:-Time for filing written statement is fix for 30 days from the date of
service of summon on him and maximum time limit from the date of service of
summons is ninety days.

 Provision of Order 8, Rule 1, are directory in nature even after expiry of stipulated
period court can extend time to file written statement. (Rameshwar Lal v. Daya Nand
AIR 2005.)
Frame of Suit:
 Order 2 Rule 1 says:- "Every suit shall as far as practicable be framed so as to afford
ground for final decision upon the subject in dispute and to prevent further litigation
concerning them.
 " There are two important things in order 2 rule 1, firstly, before framing a suit pleader
should be remembered that "as far as practicable, it should be so framed as to afford
ground for final decision of the subject in disputes." and secondly, to prevent further
litigation concerning them.
 Order 2 Rule 2 says:- that "every suit shall include the whole of the claims which the
plaintiff is entitled to make in respect of the cause of action; but a plaintiff may
relinquish any portion of his claim in order to bring the suit within the jurisdiction of
any court.
Actually the main object of this rule is to avoid the multiplicity of suits, so its requires that every
suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the
cause of action" If he omits or relinquishes any portion of his claim he shall not afterwards sue
in respect of the portion so omitted or relinquishes ( Order 2 Rule2 sub rule 3 ) but if he omits or
relinquished any relief with the permission of the court he shall afterward can sue for the relief
so omitted or relinquished ( Sub rule 3 of Rule 2 C.P.C.)

Fundamental Rule of Pleading:-

1. No amount of evidence can be looked into, upon a plea which was never put forward in
the pleading. A question which did arise from the pleadings and which was not the subject
matter of an issue cannot be decided by the court.
2. It is well settled that no amount of evidence can be looked into to find a case for which there
has been absolutely no foundation in the pleadings. (Siddik Mohammed Shah v. Mt. Saran
and others, Elizabeth v. Saramma - 1984 , Trojan & Co., v. Nagappa - AIR 1953 SC 235 ,
Bhagwadi Prasad v. Chandramaul - AIR 1966 ).
3. A court cannot make out a case not pleaded , the court should confine its decision to the
question raised in pleading nor can it grant a relief which is not claimed and which does not flow
from the facts and the cause of action alleged in the plaint .
3. A factual issues cannot be raised as considered for the first time in a second appeal.
( Bachhaj Nahar vs. Nilima Mandal and others. )

Written Statement and affidavit

Order VI Rule 15 CPC,

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.”

Sub rule (4) of the aforesaid provision came to be inserted by the Amendment Act 46 of 1999
w.e.f. 01.07.2002. Prior to the amendment to Rule 15 CPC, there was no provision regarding
verification of the pleadings in a plaint by way of an affidavit.

Section 26 of the CPC that deals with institution of suits prescribes as below:-

“26. 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.”

It may be noted that sub rule (2) of Section 26 was also inserted by way of the amendments that
were given effect from 01.07.2002

When the aforesaid provisions are read conjointly, what clearly emerges is that a suit is instituted
upon presentation of the plaint or in such a manner as maybe prescribed in the CPC and the facts
stated in the plaint are to be proved by affidavit.

In the case of Salim Haji Abdul , the provisions of Order VIII Rule 1, post amendment were
held to be directory in nature by applying the oft quoted maxim that rules of procedure are
handmaids of justice and while the language employed by the draftsman of the processual law
may be liberal or stringent, the object of the prescribing procedure is advance the cause of
justice.
Application under Section 5 of the Limitation Act

Introduction
Section 5 of the Limitation Act, 1963, provides a mechanism for the condonation of delay in
filing appeals and applications. This provision is essential in ensuring that parties are not unduly
penalized for procedural delays, allowing courts to focus on delivering substantive justice. The
section underscores the balance between adhering to legal time limits and upholding the
principles of fairness and equity in the judicial process.
Scope of Section 5
Section 5 applies to appeals and applications but explicitly excludes the initiation of suits. This
means that while litigants can seek an extension for submitting appeals or applications after the
deadline, they cannot request such extensions for starting new legal actions. The rationale behind
this limitation is to maintain the integrity of the judicial process while still accommodating
genuine cases of delay.
Criteria for Condonation of Delay
To succeed in an application under Section 5, the applicant must demonstrate to the court that
the delay was due to a "sufficient cause." This requires:
1. Explanation of Delay: The applicant must provide a detailed account of the reasons for
the delay. Common grounds include unforeseen circumstances such as illness, lack of
access to legal counsel, or miscommunication.
2. Good Faith: It is crucial that the applicant shows they acted in good faith and did not
deliberately neglect their legal responsibilities. This aspect helps establish the credibility
of the request.

3. Merit of the Appeal/Application: Courts often consider the merits of the underlying
case when assessing applications for condonation. If the case appears to have substantive
merit, courts may be more inclined to allow the extension.

Judicial Interpretation

Courts adopt a liberal interpretation of Section 5 to prevent injustices arising from rigid
adherence to time limits. The Supreme Court's ruling in Raheem Shah & Anr. v. Govind Singh
& Ors. (2023) highlights the legislative intent behind Section 5, emphasizing that the power to
condone delay serves the purpose of achieving substantial justice. The term "sufficient cause" is
designed to be flexible, enabling courts to consider the unique circumstances of each case.

Practical Implications
In practice, applications under Section 5 must be filed promptly and with compelling reasons.
Failure to provide adequate justification can result in rejection, thus precluding the applicant
from pursuing their legal remedies. The courts’ tendency to favor applications that demonstrate
genuine difficulties reflects a broader commitment to justice over procedural technicalities.

Conclusion
In conclusion, Section 5 of the Limitation Act, 1963, serves as a critical tool for ensuring access
to justice by allowing for the condonation of delays in appeals and applications. Its application
reflects a judicial philosophy that values substance over form, thereby promoting fairness in
legal proceedings. As courts continue to interpret this provision, the emphasis remains on
fostering an equitable legal environment where genuine claims are not thwarted by minor
procedural missteps.

Application for setting aside ex-part decree

Format of an application to set aside a decree passed ex parte

an ex parte decree is a decree that is passed by the court in absence of any response from the
defendant as per Order 9 Rule 6 of CPC.
As per Order 9 Rule 13, the defendant may apply before the court that passed the decree to
set it aside on the following grounds:

 If he satisfies the court that the summons was not duly served
  He was prevented by any other sufficient cause from attending the hearing. For
example, bona fide mistake as to the date or hearing, late arrival of train, etc. are
sufficient causes for absence of the defendant.

 Such an application for setting aside may be made within 30 days from the
date of decree as per Section 123 of Limitation Act.
Article 123 of limitation Act 1963

The period of limitation for an application to set aside a decree passed ex parte or to re-hear an
appeal decreed or heard ex parte {Explanation: For the purpose of this article, substituted service
under Rule 20 of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due
service] is thirty days, the time of limitation starts to run from the date of the decree or where the
summons or notice was not duly served, when the applicant had knowledge of the decree.
Article 123 applies not only to set aside the decree passed ex parte but also rehear an
appeal decreed or heard ex parte.

According to Order IX Rule 13 of Civil Procedure Code the Court can entertain an
application by a defendant to set aside a decree passed against him ex parte. Though the
Article 123 governs only suits, it is made applicable to application by reason of Section 141 of
the Civil Procedure Code. The Art. 123 is not restricted to an application to set aside the ex
parte decree passed in a suit. If an order is passed ex parte and has the force of a decree,
then an application to set it aside will also be governed by the Art. 123. An application to set
aside an ex parte final decree is governed by the Art. 123.

The provisions of Order IX Rule 13 of the Civil Procedure Code would be applicable to a
probate proceeding to recall an ex parte order granting probate of a Will. For setting aside an ex
parte decree by the High Court original side Order IX, Rule 13 of the Civil Procedure Code is
attracted by Art. 123 of the Limitation Act.

The expression “knowledge of the decree” means something more than a mere knowledge
that a decree has been passed in some suit in some Court against the applicant. It means
that the applicant must have knowledge not merely that a decree has been passed against him, ex
parte by some Court against him, but that a particular decree has been passed against him in a
particular Court for a particular sum as relief.

In M. Narasimha Reddy v. Begari Samuel, [AIR 2003 , it has been held that the
substituted service under Order V, Rule 20 of the Civil Procedure Code should not be deemed to
be due service for the purpose of the Article 123. It is observed that the Explanation to Art. 123
is a specific provision which is mandatory in nature, but, in exceptional circumstances or if the
Court feels basing on facts and circumstances of the case including the conduct of the party to
draw an inference regarding service, then the presumption can be held to be rebutted, however, it
is a rare phenomenon and such inference of due service cannot be drawn in normal
circumstances.
It is also pointed out that an inference of due service may be drawn in the facts and
circumstances of the case where it appears that the defendant is deliberately pleading ignorance
of the knowledge of the proceeding and trying to take advantage of the Explanation to Art. 123
of the Limitation Act, 1963 and that in such a case the Court can call upon the parties for adduce
evidence in its discretion which shall be exercised sparingly.

In regard to an application for setting aside an ex parte decree in a suit, the starting point of
limitation runs from the date of decree where the summons have been duly served but where the
summons was not served then from the time the applicant had the knowledge of the decree.
Similarly, the limitation for filing an application of the appeal decreed ex parte, the limitation
would start from the date when the ex parte decree is passed where there was a service of the
notice of the appeal.

The expression “knowledge of the decree” means something more than a mere knowledge that a
decree has been passed in some suit in some Court against the applicant. It means that the
applicant must have knowledge not merely that a decree has been passed against him, ex parte
by some Court against him, but that a particular decree has been passed against him in a
particular Court for a particular sum as relief.

FORMAT:-
In the Court of Civil Judge Class - I at Indore

Suit No. 1234 / 2009

A. B. s/o B. C.
123, A B Road, Indore, MP ………………………............................................
Plaintiff

Vs.

M. N. s/o O. P.
456, A B Road, Indore, MP ..........................................................
Respondent/Applicant

Application under Order IX Rule 13 of CPC, 1908

The respondent/applicant respectfully states as follows: -

(1) The Plaintiff filed the above suit which was decreed ex-parte against the applicant on
10/10/2009.

(2) The applicant came of know of this fact on 15/10/2009, when a demand notice was served on
him by the plaintiff for the decretal amount.

(3) The plaintiff obtained the decree by suppression of material facts.

(4) The summons in the said case was not served at all on the respondent/applicant.
(4) The respondent/applicant could not enter appearance in the said case by reason on non-
service of the summons.

(5) Relief Claimed: The applicant accordingly prays that the decree passed ex parte on
10/10/2009 against the applicant in the afore mentioned case be set aside and the aforementioned
case be tried in presence of the applicant.

Place: …………………. (Signature of the

applicant)
Date: …………………..

YYY
Advocate for
Respondent/Applicant

Verification

I, M. N. s/o O.P. do hereby verify that the contents from paras 1 to 5 are correct and true to the
best of my knowledge and the rest of the contents are based on legal advice, which I believe to
be true. Affirmed at Indore this 4th Day of September 2009.

(Signature)
Respondent/Applicant

Unit – II: Civil Pleading

Ordinary suit for Recovery

Suit for Recovery under Order XXXVII of CPC and the difference
between the two suits
SUMMARY PROCEDURE
A suit for recovery under Order XXXVII is a special type of case designed for faster recovery
of money based on written agreements, like bills of exchange, promissory notes, or contracts. It
allows for a quick resolution since the defendant can only defend the case if they get permission
(leave) from the court, which is only granted if they have a strong reason to defend. This helps
avoid delays and keeps the process simple.
Key Features of Order XXXVII Suits:

1. Scope: These suits are limited to recovery claims involving liquidated amounts and
certain written instruments like contracts, bills, or promissory notes.
2. Expedited Process: The defendant must obtain leave to defend, and this can only be
granted if the court believes the defense has merit. This accelerates the overall process.
 3. No Frivolous Defenses: By restricting defenses to valid and substantial ones, Order
XXXVII aims to prevent unnecessary delays in recovery cases.
4. Plaint and Summons: The summons in such suits is issued in a special format that
informs the defendant that they must apply for leave to defend within a limited
timeframe.

Courts and Classes of Suits to which Order XXXVII of CPC Applies:

1. Applicable Courts:

 (a) High Courts, City Civil Courts, and Courts of Small Causes.
 (b) Other Courts, as determined by the High Court through notifications.

2. Categories of Suits:

 (a) Suits on Bills of Exchange, Hundis, and Promissory Notes.

 (b) Suits for recovery of a debt or liquidated demand in money payable by the defendant:
o (i) Based on a written contract, bills or promissory notes
o (ii) Based on an enactment, where the sum is a fixed amount or a debt (not a
penalty).
o (iii) Based on a guarantee, where the claim against the principal is related to a
debt or liquidated demand.

3. Filing the Suit: The plaint must specify it's under Order XXXVII, with no other relief
beyond debt recovery.
4. Defendant's Appearance: The defendant must appear within 10 days and may request leave
to defend.
5. Leave to Defend: Granted if the court sees a valid defense; otherwise, judgment goes to the
plaintiff.
6. Judgment: If no defense is filed or granted, judgment is immediate.
7. Setting Aside Decree: The court can set aside the decree under special conditions.

2. Institution of summary suits (Rule 2 Order XXXVII of Code of Civil

Procedure 1908 )

A summary suit under Order XXXVII of the Code of Civil Procedure (CPC) allows a plaintiff to
file a case quickly when seeking a specific type of relief. To start this type of suit, the plaintiff
must submit a plaint that clearly states it is filed under Order XXXVII. The plaint should only
ask for relief allowed by this order and include the note "(Under Order XXXVII of the Code of
Civil Procedure, 1908)" right below the suit number.
The summons, which is the document that informs the defendant about the lawsuit, must follow
a specific format, usually Form No. 4 from Appendix B. The defendant must respond by entering
an appearance within the given timeframe. If the defendant doesn’t respond, they automatically
accept the facts stated in the plaint, and the plaintiff can win the case without further arguments.
This means the plaintiff can immediately receive the money or relief they requested, along with
any interest and costs.
Procedure for the Appearance of Defendant (Rule 3 Order XXXVII of CPC 1908 )
1. Serving the Summons and Copy of the Plaint:

When a summary suit is filed, the plaintiff must serve a copy of the plaint (the formal statement
of their claims) along with a summons to the defendant. The summons tells the defendant that
they need to respond to the suit within a specific time period.

2. Defendant's Entry of Appearance:

The defendant has 10 days from receiving the summons to enter an "appearance." This means
they must notify the court that they are aware of the case and intend to defend themselves. The
defendant can do this either personally or through a lawyer and must provide an address for any
future communication from the court.

3. Notifying the Plaintiff:

After entering an appearance, the defendant must inform the plaintiff (or their lawyer) about this
step. This can be done by sending a notice by post or delivering it in person.

4. Summons for Judgment:

Once the defendant has entered an appearance, the plaintiff serves a "summons for judgment."
This is a request for the court to give judgment in their favor because they believe the defendant
has no valid defense. The plaintiff must also provide an affidavit, verifying the claim and stating
that they believe the defendant has no defense.

5. Leave to Defend:

The defendant then has another 10 days to apply for "leave to defend" the suit. This means they
must ask the court for permission to present their defense by explaining why they believe they
have a valid case. The defendant must provide an affidavit showing facts that justify why they
should be allowed to defend the suit.

6. Court’s Decision on Defense:

If the court finds that the defendant has a strong or valid defense, it can grant unconditional
permission to defend. If the defense is weak or requires some conditions, the court may allow the
defendant to defend the suit but impose conditions, such as asking the defendant to deposit some
amount of money or provide security.

7. What Happens If the Defendant Fails to Defend:

If the defendant does not apply for leave to defend within 10 days, or if the court rejects their
application, the court will pass judgment in favor of the plaintiff right away. This means the
plaintiff will win the case, and the defendant will have to pay the amount claimed or comply
with the court's order.

8. Excusing Delay:
If the defendant is late in entering an appearance or applying for leave to defend due to a valid
reason, the court can excuse the delay and allow the defendant to continue defending the suit.

Power to Set Aside Decree: (Rule 4 Order XXXVII of CPC 1908)

After the court has passed a decree (a final decision), it may, under special circumstances, set
aside that decree. The court can also halt the execution of the decree and allow the defendant to
defend the suit if it seems reasonable. This is done on terms the court deems appropriate.
Power to Order Deposit of Bill: The court can order the plaintiff to deposit the bill, hundi, or
promissory note (which the suit is based on) with a court officer. The court may pause further
proceedings until the plaintiff provides security for the costs involved in the case.
Recovery of Costs for Noting Dishonoured Bill:
If a bill of exchange or promissory note is dishonoured (not accepted or paid), the holder
(plaintiff) can recover the costs incurred in noting the dishonour. The remedies available for
recovering these costs are the same as for recovering the amount of the bill or note under this
order.
Procedure in Summary Suits:
 Except where specifically provided under this order, the procedure in summary suits
follows the same rules as ordinary suits under the Code of Civil Procedure (CPC).

Difference Between Summary Suits (Order XXXVII) and Regular Suits for
Recovery:

Aspect Order XXXVII (Summary Suit) Regular Suit for Recovery

Based on written contracts, bills of Can be filed for any type of

Filing Basis exchange, promissory notes, or liquidated recovery, including damages or
debts. unliquidated claims.

Defendant's Defendant must seek leave from the court to Defendant has an automatic right
Aspect Order XXXVII (Summary Suit) Regular Suit for Recovery

defend the case, and can only defend if they to defend the case without seeking
Role
show that they have a plausible defence. court's permission.

Longer process, as all defences are

Timeframe Faster resolution due to restricted defences.
heard and considered.

Both liquidated and unliquidated

Nature of Only claims involving a liquidated amount
claims (e.g., compensation for
Claims are entertained.
damages) are allowed.

No such discretion is involved; the

Court's Court exercises discretion in granting leave
defendant can defend without
Discretion to defend.
limitations.

Defendant can raise all possible

Frivolous Frivolous or vexatious defences are not
defences, even those that may not
Defences allowed; they must be substantial.
be substantial.

A special summons format is used,

Summons Standard summons are issued
informing the defendant of the need to apply
Procedure without any special directives.
for leave to defend.

Focused on a thorough
Quick disposal of debt recovery cases,
Objective examination of all aspects of the
limiting unnecessary defences.
dispute.

Introduction

An injunction is a prohibitive writ issued by a court of equity, at the suit of a party complainant,
directed to a party defendant in the action, or to a party made a defendant for that purpose,
forbidding the latter to do some act, or to permit his servants or agents to do some act, which he
is threatening or attempting to commit, or restraining him in the continuance thereof, such act
being unjust and inequitable, injurious to the plaintiff, and not such as can be adequately
redressed by an action fit law.[1]

For example, if someone is demolishing a building you claim to own, you can seek an
injunction to stop the demolition until the case is resolved. In India, injunctions are governed by
the Specific Relief Act, 1963, and the Code of Civil Procedure, 1908, which outline the
conditions for granting such orders to protect the rights of the parties involved.

Application for temporary injunction Order (39)XXXIX of

CPC
 An injunction is an equitable remedy in the form of a court order that compels a party to do
or refrain from specific acts.

o A temporary injunction is a court order that restrains a party from acting in a

certain way until a final decision is made in a case. It aims to prevent irreparable
harm or maintain the status quo during the pendency of a legal proceeding.

 It is a remedy that originated in the English courts of equity. Like other equitable remedies, it
has traditionally been given when a wrong cannot be effectively remedied by an award of
money damages. Injunctions are intended to make whole again someone whose rights have
been violated. Nevertheless, while deciding whether to grant an injunction, courts also take
into account the interests of non-parties (that is, the public interest) and special attention to
questions of fairness and good faith.

 One manifestation of this is that injunctions are subject to equitable defenses, such as laches
and unclean hands. Injunctions are given in many different kinds of cases. They can
prohibit future violations of the law, such as trespass to real property, infringement of a
patent etc.

 Section 94 (c) and (e) of Code of Civil Procedure contain provisions under which the Court
may in order to prevent the ends of justice from being defeated, grant a temporary injunction
or make such other interlocutory order as may appear to the Court to be just and
convenient.

 Section 95 of Civil Procedure Code further provides that where in any suit a temporary
injunction is granted and it appears to the Court that there were no sufficient grounds, or
the suit of the plaintiff fails and it appears to the Court that there was no reasonable or
probable ground for instituting the same, the Court may on application of the defendant
award reasonable compensation which may be to the extent of the pecuniary Jurisdiction of
the Court trying the suit.

When granting a temporary injunction, the court applies three key tests:
1. Prima Facie Case: The plaintiff must demonstrate that there is a reasonable likelihood of
success on the merits of the case.
2. Balance of Convenience: The court assesses whether the balance of convenience favors
the plaintiff, meaning that the harm the plaintiff would suffer without the injunction
outweighs any potential harm to the defendant from granting it.
3. Irreparable Injury: The plaintiff must show that they would suffer irreparable harm if
the injunction is not granted, indicating that monetary damages would not suffice to
remedy the situation.
In exercising its discretion to grant or refuse an injunction, the court weighs the potential
mischief or injury to both parties. It aims to maintain the status quo pending the resolution of the
case. At this stage, the court does not delve deeply into the merits of the case but focuses on
these essential factors.
The court also adheres to several equitable principles, such as:
 "Ubi jus ibi remedium": Where there is a right, there is a remedy.
 Clean Hands Doctrine: Those seeking equitable relief must have acted fairly.
 Doing Equity: Parties must act in a manner that is fair to all involved.
 Law Prevails Where Equities are Equal: If both parties have equal claims, legal rights
take precedence.
 Vigilance: Courts favor those who are proactive about their rights.
The power to grant a temporary injunction is discretionary and should be exercised reasonably
and judiciously. It is crucial that injunctions are not granted lightly, as they can significantly
impact the other party. If granted, the court may impose reasonable terms and conditions to ensure compliance,
ensuring that such conditions do not render the relief impossible to achieve.

Order XXXIX:

Rule 1: It enlists the situations when a court may grant temporary injunction. These are:

o Any property in dispute in a suit is in danger of being wasted, damaged or alienated

by any party to the suit, or wrongfully sold in execution of a decree, or
o the defendant threatens, or intends, to remove or dispose of his property with a view
to defrauding his creditors,
o the defendant threatens to dispossess the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in the suit.

Rule 2: It provides that an interim injunction may be granted for restraining the defendant from
committing a breach of contract or other injury of any kind to the plaintiff.

Rule 3: It states that a court shall direct a notice of application to the opposite party, before
granting the injunction to the plaintiff. However, if it seems to the court that the purpose of the
injunction would be defeated by the delay, it may not provide the notice.

Rule 4: It provides for vacation of already granted temporary injunction.

Rule 5: It states that an injunction directed to a corporation is binding not only on the
corporation itself, but also on all members and officers of the corporation whose personal action
the injunction seeks to restrain.

Types of Injunctions in the Indian Law

1. Duration-Based Classification
Taking in to consideration the duration and the stage, they can be classified in to
 Temporary injunctions
These are issued for a limited duration to maintain the status quo and prevent irreparable harm
while a case is pending. They can be granted at any stage of the proceedings and are often
subject to further review and modification by the court.
 Perpetual injunctions
These are granted as a final remedy at the conclusion of a lawsuit, permanently prohibiting a
party from acting in a manner that violates the rights of another party.
2. Nature-Based Classification

 Mandatory Injunctions: These require a party to take a specific action. They are used to
compel a defendant to perform a particular act, such as fulfilling contractual obligations or
restoring a property to its original condition.

 Prohibitory Injunctions: These forbid a party from engaging in certain actions. They are
aimed at preventing harm by stopping an action that could infringe on the rights of another
party.
Many injunctions are both—that is, they have both mandatory and prohibitory components,
because they require some conduct and forbid other conduct. When an injunction is given, it can
be enforced with equitable enforcement mechanisms such as contempt. It can also be modified
or dissolved (upon a proper motion to the court) if circumstances change in the future. These
features of the injunction allow a court granting one to manage the behaviour of the parties.

Law of Injunctions in Indian Legal System

In the Indian legal system, the law of injunctions is primarily governed by the following
provisions:

1. Order XXXIX of the Civil Procedure Code (CPC):

This order specifically deals with the grant of temporary injunctions. It provides the procedural
framework for courts to issue injunctions to maintain the status quo and prevent irreparable harm
during the pendency of a suit.

2. Sections 36 and 42 of the Specific Relief Act:

Section 36: This section outlines the circumstances under which a permanent injunction may be
granted. It emphasizes the court’s discretion in protecting rights through injunctions.

Section 42: This section allows for the granting of injunctions to prevent the breach of an
obligation, whether it is express or implied.

3. Section 94(c) of the Civil Procedure Code:

This provision offers supplemental grounds for the grant of temporary injunctions, reinforcing
the court's authority to issue such orders when necessary to prevent injustice.
 4. Section 151 of the Civil Procedure Code:

This section grants inherent powers to civil courts, allowing them to issue injunctions or
supplementary orders as needed to ensure compliance with injunctions in just cases. It expands
the scope of the courts' authority in granting relief and upholding justice.

Suit for Permanent Injunction

Permanent Injunction

A permanent injunction is a judicial order issued by a court that permanently restricts a party (the
defendant) from asserting a specific right or engaging in particular actions that would infringe
upon the rights of another party (the plaintiff)

Grounds for Filing

A plaintiff must establish several elements to obtain a permanent injunction:
1) Irreparable Harm: The plaintiff must show that they will suffer irreparable harm without
the injunction, meaning that monetary damages would not be sufficient to remedy the
situation.
2) Inadequate Remedy at Law: The plaintiff must demonstrate that legal remedies (such as
monetary damages) are inadequate.
3) Balance of Hardships: The court will consider whether the harm to the plaintiff from not
granting the injunction outweighs the harm to the defendant from granting it.
4) Public Interest: If applicable, the court may assess whether granting the injunction would
harm the public interest.

When can a permanent injunction be granted?

A permanent injunction may be granted:

 Breach of Obligation: It helps prevent a breach of an obligation that exists for the plaintiff,
whether it's clearly stated or implied. If the obligation comes from a contract, the court
follows specific rules that allow the plaintiff to claim relief based on contract laws.
 Protecting Property Rights: It can also be issued when the defendant invades or threatens
the plaintiff’s property rights. The court may grant a permanent injunction if:

 The defendant is a trustee of the property for the plaintiff.

 There is no clear way to measure the damage caused by the invasion.

 Monetary compensation would not be enough to address the harm.

 It helps avoid multiple legal cases on the same issue.

 In Municipal Corporation of Delhi v. Suresh Chand Jaipuria, the Supreme Court held that a
permanent injunction cannot be granted if there is an alternative and effective remedy available
to the plaintiff through other legal means. The court pointed out that since the plaintiff could
seek relief under the Delhi Municipal Corporation Act, a permanent injunction was
unnecessary. This ruling emphasizes that courts should carefully assess whether an equally
effective remedy exists before granting an injunction, ensuring that such relief is only provided
when truly needed and justifiable.

Damages in Relation to Injunctions

Claiming Damages with an Injunction

 If a plaintiff seeks an injunction (either perpetual or mandatory) and also wants additional
damages, the court may grant those damages if deemed appropriate.

 If damages aren’t initially claimed, the court may permit the plaintiff to amend their
complaint to include a damages claim. However, it’s advisable to include damages in the
original complaint to avoid delays, as the court has discretion over such amendments.

Impact of Dismissal
If a suit aimed at preventing a breach of obligation in favor of the plaintiff is dismissed, the
plaintiff may lose the right to pursue damages for that breach.

Injunction for Negative Agreements

 The court can issue an injunction to prevent a party from engaging in actions prohibited by a
contract, even if the court cannot enforce the contract's affirmative terms (actions that the
party is required to perform).
 However, this is contingent upon the plaintiff having fulfilled their own contractual
obligations. If the plaintiff has not performed their part, they are typically not entitled to seek
such an injunction.
Case Laws Regarding Permanent Injunction

In the case of Jujhar Singh vs. Giani Talok Singh , a son sought a permanent injunction
to prevent his father, the Karta of the Hindu Undivided Family (HUF), from selling HUF
property. The court set aside the request, ruling that the son, as a coparcener, had the remedy to
challenge the sale and seek its annulment in a subsequent lawsuit. The court reasoned that
granting the injunction would unjustly prevent the father from selling the property, even if
compelled by legal necessities.

In another case, Cotton Corporation of India vs. United Industrial Bank , the
plaintiff sought an injunction to restrain the defendants from filing a winding-up petition under
the Companies Act, 1956, or the Banking Regulation Act, 1949. The court dismissed this
petition, stating it lacked the authority to grant a temporary injunction preventing a party from
initiating proceedings in a court not subordinate to it. The court emphasized that if a perpetual
injunction cannot be granted under Section 41(b) of the Specific Relief Act, a temporary
injunction would similarly be impermissible.
Grounds for Rejection of an Application for Injunction

On the following grounds, an injunction cannot be granted:

1) Prosecution of Pending Proceedings: An injunction cannot restrain a person from

prosecuting a pending judicial proceeding unless it is necessary to prevent multiplicity of
proceedings.
2) Institution of Proceedings in a Higher Court: An injunction cannot restrain a person from
instituting or prosecuting a judicial proceeding in a court if the injunction is sought from a
court subordinate to that court.
3) Application to Legislative Bodies: An injunction cannot restrain any person from applying
to any legislative body.
4) Criminal Matters: An injunction cannot restrain any person from instituting or prosecuting
any proceeding in a criminal matter.
5) Breach of Non-Enforceable Contracts: An injunction cannot prevent the breach of a
contract that cannot be specifically enforced, such as a contract between a master and servant
requiring personal services.
6) Nuisance: If it is not reasonably clear that an act constitutes a nuisance, an injunction cannot
be granted to prevent such an act on the grounds of nuisance.
7) Continuing Breach and Acquiescence: An injunction cannot prevent a continuing breach if
the plaintiff has acquiesced, as silence may imply consent.
8) Availability of Other Remedies: An injunction cannot be granted when, except in the case
of breach of trust, equally effective relief can be obtained through other usual modes of
proceeding.
9) Plaintiff's Conduct: If the conduct of the plaintiff or their agents disqualifies them from
receiving the court's assistance, an injunction will not be granted.
10) Lack of Personal Interest: An injunction cannot be granted if the plaintiff has no personal
interest in the matter at hand.

Introduction

An appeal is a formal request made to a higher court to review and assess the validity of an
order issued by a subordinate court. It serves as a remedy for an aggrieved party, rather than an
inherent right. Provisions regarding appeals from original decrees are outlined in Part VII of the
Code of Civil Procedure, 1908 (CPC).
What is an Appeal?
Although the CPC does not explicitly define "appeal," it refers to it as a judicial review by a
superior court to verify the correctness of a lower court's order. The party initiating the appeal is
known as the appellant, while the court hearing the appeal is the Appellate Court. Individuals
affected by a court decree or order have the right to appeal to a higher court, provided that such a
right is recognized against the specific decree or order. Typically, a first appeal against a decree
issued by a court of original jurisdiction lies with the appellate court designated to hear appeals
from that court’s decisions. Exceptions to this rule may be specified in the CPC or other relevant
laws. Sections 96, 100, 104, and 109 of the CPC define the right to appeal.
The right to appeal can be classified as both a statutory and a substantive right. It is statutory
when explicitly granted by legislation, while it is substantive when it confers the authority to
challenge a subordinate court's order in a higher court.
Who Can Appeal?
The right to appeal is granted to:
 The original parties involved in the case or their legal representatives.
 Legal guardians appointed by the court for minors.
 Any aggrieved individual, provided they have obtained permission from the court.
Appeal from Original Decree under Order 41 of CPC

First Appeal Under the Code of Civil Procedure, 1908

The First Appeal is a crucial legal remedy outlined in the Code of Civil Procedure (CPC),
specifically governed by Sections 96 to 99-A and 107, along with Order 41. This mechanism
enables a party aggrieved by a decree passed by a court exercising original jurisdiction to seek
redress in a superior court, which may or may not be a High Court. It allows for appeals based
on questions of fact, law, or a combination of both.
Nature of Appeal.

Section 96 of the CPC outlines the provisions for filing appeals from original decrees. Here’s a
breakdown of its clauses:
1. Clause (1): Unless otherwise stated in the CPC or by any applicable law, an appeal can
be filed against every decree made by a court exercising original jurisdiction to the court
that is authorized to hear appeals from such decrees.
2. Clause (2): An appeal may be filed against an original decree that has been passed ex
parte, meaning it was made in the absence of one party.
3. Clause (3): No appeal can be filed from a decree that has been made with the consent of
both parties involved in the case.
4. Clause (4): For decrees concerning suits that fall under the jurisdiction of Courts of
Small Causes, an appeal is only permissible on a question of law if the amount or value
of the subject matter does not exceed ten thousand rupees.

Procedure for Filing an Appeal from Original Decree

The rules for filing a first appeal are detailed in Order 41 of the CPC.
Rule 1 states Form of appeal What to accompany memorandum as
It states that the appeal must be submitted as a signed memorandum, along with a copy of the
judgment. This document should clearly list the reasons for the appeal without excessive detail.
If the appeal involves a money decree, the appellant must deposit the disputed amount or provide
some security as directed by the court.
Rule 2 states Grounds which may be taken in appeal:
emphasizes that the reasons for the appeal should be included in the memorandum. The appellant
usually cannot introduce new reasons without the court's permission, but the appellate court can
consider additional points if the other party has had a chance to respond.
Rule 3 : states Rejection or amendment of memorandum:
if the appeal memorandum is not properly formatted, the court can either reject it or ask for
corrections. If it is rejected, the court must explain why. If amendments are allowed, the judge or
a designated officer must approve them.
Rule 3A : states Application for condonation of delay:
It deals with situations where an appeal is filed after the deadline. The appellant must include a
request explaining the delay, supported by an affidavit. The court may decide to issue a notice to
the other party before addressing the appeal.
Rule 4: states One of several plaintiffs or defendants may obtain reversal of
whole decree where it proceeds on ground common to all:
It allows any one of several plaintiffs or defendants to appeal against a decree that affects all of
them on common grounds. This means that the appellate court can change the decree for all
parties if one of them files the appeal.
Conclusion
The first appeal mechanism established under the CPC serves as an essential legal avenue for
individuals seeking to contest and rectify decisions made by lower courts. It reflects principles of
justice by providing a structured process for appealing original decrees, ensuring procedural
fairness and the opportunity for adequate legal redress.

Cases of Appeal from Original decree

 Baldev Singh v. Surinder Mohan Sharma (2003):

The Supreme court stated that there is no dispute that as against a decree, an appeal would be
maintainable in terms of Section 96 of the Code of Civil Procedure.

Such an appeal, however, would be maintainable only at the instance of a person aggrieved by
and dissatisfied with the judgment and decree.

 State of Maharashtra v. Hindustan Construction Company Ltd. (2010):

The Supreme Court held that the appellant court has power to grant leave to amend the
memorandum of appeal.

Revision Petition

A revision petition serves as a crucial legal mechanism allowing parties to challenge the
decisions made by lower courts. This type of petition is typically filed in higher courts, such as
High Courts or appellate courts, when a party believes that an error occurred in the legal
judgment, interpretation, or procedure followed by the lower court. The primary objective of a
revision petition is to ensure that justice is served by correcting any mistakes that may have
affected the outcome of the case.

For Example: Madras High Court has power to supervise all courts which are under its
Jurisdiction. Section 115 of the Code of Civil Procedure, 1908 explains when the High Courts
can exercise this power.
Nature

Not an Appeal: A revision petition is not the same as an appeal; it is a request for review and
correction, often with a narrower focus on legal issues rather than factual disputes.

Discretionary Nature: Higher courts may have discretion on whether to entertain a revision
petition.

Not Stay of Suit: A revision petition does not automatically halt ongoing legal proceedings
unless specifically stayed by the High Court

The Period of limitation for filing a revision application is 90 days from the date of decree or
order of the subordinate court

Jurisdiction and Limitations

The jurisdiction to hear revision petitions typically lies with higher courts, which have the
authority to oversee and correct decisions made by lower courts. The specific higher court in
which a revision petition must be filed can vary depending on the nature of the case and the legal
framework governing the jurisdiction. Moreover, there is usually a limitation period within
which a revision petition must be filed, defined by procedural laws. Failing to adhere to this
timeframe can lead to dismissal of the petition, emphasizing the importance of timely action

Grounds for Filing a Revision Petition

1. The impugned order amounts to a case decided.

2. The case has been decided by a court subordinate to the High Court. (a court can pass a
number of orders in a suit and such order need not be the final one.)
3. No appeal must be filed against the suit in the High Court or any other court which is
subordinate to the High Court.
4. The subordinate court appears to have:
o Exercised jurisdiction not vested in it by law;
o Failed to exercise jurisdiction vested;
o To have acted in the exercise of the Judge illegally or material irregularity.

Procedure for Filing a Revision Petition/ Remedies Against Ex-Parte Decree

1. Application under Order IX Rule 13 CPC:

The first remedy is to file an application under Order IX Rule 13 of the Civil Procedure Code
(CPC) to have the ex-parte decree set aside. This rule allows a party who was not present
during the proceedings to request the court to annul the decree, provided they can show a
valid reason for their absence and that they have a legitimate case to present.
2. Appeal under Section 96(2) CPC:
The second option is to file an appeal against the ex-parte decree under Section 96(2) of the
CPC. This provision allows an aggrieved party to challenge the decree in a higher court,
seeking to overturn the decision based on legal or factual grounds. The appeal must typically
be filed within a specified period after the decree has been pronounced.
3. Review before the Same Court:
The third remedy involves seeking a review of the ex-parte decree before the same court that
issued it. This can be done if there are grounds such as the discovery of new evidence or if
the court has made a significant error. The application for review must be filed in accordance
with the rules governing review petitions, allowing the court to reassess its earlier decision.

IN THE HIGH COURT OF MADRAS

CIVIL APPELLATE JURISDICTION

CIVIL REVISION NO.333 OF 2020

Name……………………………………………………………..Petitioner
(Plaintiff/Defendant)

Versus

Name……………………………………………………………..Respondent
(Plaintiff/Defendant)

REVISION PETITION UNDER SECTION 115 OF THE CIVIL PROCEDURE

CODE, 1908 CHALLENGING THE ORDER PASSED ON _____IN THE CASE
NO._____.

The Petitioner MOST RESPECTFULLY SHOWETH:

1. That, the instant Revision Petition is filed by the Petitioner under Section 115 of the Code of
Civil Procedure (CPC), 1908 being aggrieved by the Order dated _______ passed by the Ld.
Civil Judge, ______________, New Delhi in Civil Suit No. ________of 2019 seeking to set
aside the same. The certified copy of the impugned order is annexed hereto and marked
as Annexure A1.

2. The Petitioner seeks the intervention of the Hon’ble Court as the subordinate court had refused
to summon two important witnesses who were determinant to the case. Without the court
intervention, and thereby issuing an Order of Summons, there is no way that they would appear
and answer on Oath. The non-appearance of the witness would lead to grave injury caused to the
Petitioner. Thus, this petition to direct the Subordinate Court to issue summons to the witness
and thereby exercise the jurisdiction the court has.

BRIEF FACTS OF THE CASE

3. The money suit was filed by the Petitioner on __________based on the contract entered into
by the Plaintiff and the Defendant for jointly bidding a tender floated by the Public Sector Unit
(PSU). It was agreed that the sale proceeds would be distributed equally to the bidders.
4. The parties secured the tender in their favour for Rs.5,00,000 and the amount was credited to
the Defendants account. But, the value of the tender would least amount to Rs. 10,00,000.

5. The Defendant after receiving the sale proceeds informed the Plaintiff that he had accepted the
tender for Rs. 5,00,000. When the Plaintiff enquired the Defendant as to why such low amounts
were secured, the Defendant gave evasive response and never explained why such less amount
was received, when clearly the value of movies is much higher. As per the terms and conditions
of the contract half of the financial proceeds belong to the Plaintiff.

6. That the trial court framed issues on 19/01/2019 and directed the Petitioner to produce
evidence, upon which the Petitioner promptly furnished to the court below four witnesses
making a request that the witness should be summoned by that Court.

7. The Plaintiff listed 4 witnesses out of which there are 2 witnesses from the PSU.

8. The Judge refused to entertain such a request and directed the Plaintiff to secure the
attendance of the 2 PSU witnesses on his own.

9. The Judge, after cross-examining the two other witnesses had passed an order to close the
witness of the Plaintiff (order dated 15/07/2019).

10. Two witness of the petitioner had appeared and their statements were recorded. However, the
learned Presiding Officer of the court below passed an order that the remaining witnesses be
produced by the petitioner-plaintiff on his own without seeking the assistance of the court. This
order was passed despite a request by the petitioner that at least those witnesses named in the list
who are State employees should be summoned by the court, as they are required to produce and
prove some official records.

GROUNDS:

i. That on the date of hearing the learned trial court by the order impugned in this revision
closed the evidence of the petitioner-plaintiff on the ground that the remaining
witnesses were not produced by him.
ii. That the impugned order has caused great prejudice to the petitioner and if the same is
allowed to stand the petitioner’s suit is bound to fail.
iii. The Judge has failed to exercise the powers granted to him under Order XVI, Rule I of
the Civil Procedure Code, 1908.
iv. That the trial court has unjustifiably denied assistance of the court to the petitioner-
plaintiff to secure the attendance of his witnesses. The interests of justice demand that
he is provided with all legal assistance in this regard.
v. The purpose of summoning the two PSU witnesses has a great impact on the case. Only
on them giving testimony can the rights of the parties be decided and the justice can
be upheld and the real rights of the parties be decided.
vi. That it is violative of the principles of natural justice and fair trial.
11. The Plaintiff submits that all court fees have been paid.

12. The Plaintiff submits that there is no appeal in the High Court or any other Court subordinate
to it.

PRAYER

In the facts and circumstances discussed above the petitioner prays that this Hon’ble Court be
pleased to

1. Quash and set aside the order under revision.

2. Direct the court below to provide assistance of the court for summoning the plaintiff-
witnesses.
And pass any such other orders as the court may deem fit and proper in the light of the given
circumstances and thus render justice.

Review Petition

A review petition is a legal request made to a court to re-evaluate and reconsider its own
decision or order. This mechanism allows parties to seek corrections in judgments that they
believe contain errors, whether factual or legal.

Constitutional Provision: Article 137

Under Article 137 of the Constitution of India, the Supreme Court has the authority to review its
own judgments or orders. This provision ensures that the Court can correct significant errors that
may lead to a miscarriage of justice, rather than addressing minor mistakes of inconsequential
import. Importantly, a review petition is not a disguised appeal; the Court does not re-evaluate
the entire case but focuses on correcting "patent errors."

Scope of Review

The Supreme Court exercises its power to review when there is a need to rectify grave mistakes
that have resulted in unjust outcomes. This means that not every mistake qualifies for review;
only substantial errors that can significantly impact justice are considered.
Purpose:
The primary aim of a review petition is to rectify mistakes in a court’s previous judgment, such
as errors in interpretation of law, misapplication of facts, or procedural lapses. It serves as a
means to ensure justice by allowing the court to reconsider its decisions.

Grounds for Filing:

1. Discovery of new and important evidence that was not available during the original
proceedings.
2. Errors on the face of the record, meaning clear mistakes in the judgment itself.

3. Manifest injustice that may have resulted from the court's decision.

4. Any other sufficient reason that justifies a reconsideration.

Procedure:
The process for filing a review petition generally involves:

5. Drafting a petition that outlines the grounds for review and any supporting evidence.

6. Submitting the petition to the same court that issued the original judgment, typically within a
specified time frame.

7. The court may schedule a hearing where both parties can present their arguments regarding
the request for review.

Limitations:
There are often strict time limits for filing a review petition, which can vary by jurisdiction. It’s
crucial to adhere to these timelines to ensure the petition is considered.

Outcome:
After reviewing the petition, the court may:

o Uphold its original decision.

o Modify the decision based on the findings.

o Set aside the previous judgment and issue a new one.

Option After Review Petition Fails

If a review petition is dismissed, the concept of a curative petition allows for further recourse.
This was established in the Roopa Hurra v. Ashok Hurra case (2002). A curative petition
is heard under very narrow grounds, similar to those of a review petition, and generally does not
involve oral hearings. It serves to ensure that the Supreme Court's decisions do not result in a
miscarriage of justice.
Conclusion

In summary, a review petition is an important legal tool that allows individuals to seek justice by
addressing errors in court decisions. It ensures that the judicial process remains fair and accurate,
providing a pathway for correction when mistakes occur.

REVIEW PETITION FORMAT UNDER ARTICLE 137

(REVIEW PETITION FORMAT UNDER ARTICLE 137)

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

REVIEW PETITION NO XX/XXXX

IN

CIVIL APPEAL NO XX/XXXX

IN THE MATTER OF:

RAMESH AND ORS ….…………REVIEW PETITIONERS

AND IN THE MATTER OF :

UPMANYU ……………………..PETITIONERS

VS.

UNION OF INDIA ……………………RESPONDENTS

REVIEW PETITION UNDER ARTICLE 137 R/W ORDER XLVII OF SUPREME

COURT RULES, 2013
TO

THE CHIEF JUSTICE OF INDIA

AND HIS COMPANION JUSTICES OF THE HON’ BLE

SUPREME COURT OF INDIA

THE HUMBLE PETITION OF

THE PETITIONER ABOVENAMED

MOST HUMBLY SHOWETH

1. That the present review petition is being filed seeking review of judgment and order dated
xx/xxxx whereby this Hon’ble Court dismissed Civil Appeal bearing No. xx/xxxx.

2. That Petitioners were not parties in the captioned matter. The Review Petitioners are being
gravely prejudiced by the judgment passed by this Hon’ble Court in the captioned matter.

3. That this Hon’ble Court has vide order dated xx/xxxx has held that AICTE has only the
power to lay down parameters for technical education. AICTE has not issued any guidelines
regarding practical in distance mode as such imparting technical courses through distance mode
is not permissible. Further the Supreme Court directed that students who have acquired
 technical degree/diploma through distance mode after 2018 till the Supreme Court judgment has
to appear in special examination conducted by AICTE to validate their degree as one time
measure.

4. That the Review Petitioners have acquired their degree/diploma through distance mode and
are working in various organizations for earning their livelihood. In most of the cases the Review
Petitioners are the sole bread earners in the family.

5. That the judgment passed by this Hon’ble Court has endangered the career of the Petitioners
as their jobs are at risk. As such the Petitioners are constrained to file this review petition before
this Hon’ble Court.

GROUNDS

This review Petition is being filed on following grounds.

A. Because there are errors apparent on face of record in the judgment passed by this Hon’ble
Court.

B. Because the judgment has been passed without impleading aggrieved parties and without
considering the widespread adverse impact on the affected students.

C. Because the jobs of the Review Petitioners are risk for no wrongs done by the Petitioners. The
Petitioners had duly applied against advertisement issued by the Institutions recognized by
appropriate authority. The Review Petitioners were awarded degrees/diploma after they had
completed the requirements of the courses. Suddenly they can not be expected to take an
examination to validate the degree/diploma which was not part of the advertisement issued by
the institutions against which they had applied.

D. Because the Hon’ble Court failed to appreciate that many of distance courses were having
practical as part of curriculum. Practical was also part of curriculum of Review Petitioners
wherein they had passed the practical examinations.

E. Because Petitioners have been working in different orgnisations and earning their livelihood. It
will be a cumbersome exercise for them to again appear in an examination, which was not part
of their curriculum.

F. That any such examination is arbitrary and in violation of Article 14 of the Constitution of India.

7. That review Petitioners have not filed any other review petition before this Hon’ble Court.

PRAYERS

In the facts and circumstances of the case, it is prayed that this Hon’ble Court may be pleased
to:
(i) Allow the review petition seeking review of judgment and order dated xx/xxxx in Civil
Appeal No. xx/xxxx.

Unit – III: General Principles of Criminal Pleadings

Criminal pleadings are the backbone of the judicial process, serving as the formal documents
that outline the charges against an accused individual and the framework for their defense. In a
courtroom where lives and liberties are at stake, the precision and clarity of these pleadings are
vital. They not only inform the accused of the allegations but also ensure that both the
prosecution and defense can present their cases effectively.
When a person is arrested, they possess a legal right to seek bail. Bail refers to the legal release
of an individual from police custody while they face charges for specific offenses.

Bail Application Process

A bail application is submitted to the court using Form 45, as outlined in the 2nd schedule of the
Code of Criminal Procedure. The application is filed by the advocate on behalf of the accused.
To secure bail, the accused must furnish a bond and provide sureties before the court.
The Primary aim of a bail application is to facilitate the provisional release of the accused.
Arrests in criminal cases are intended to ensure the accused's presence during the trial process.
However, if the accused is willing to appear in court without being detained, it is unjust to
restrict their personal liberty. Thus, provisions for bail are included in procedural laws.
Procedure for Filing a Bail Application

Types of Bail

1. Bail in Bailable Offences

Under Section 436 of the Code of Criminal Procedure (CrPC), individuals charged with bailable
offenses have a right to bail. The police or court is obligated to grant bail upon application.

The accused can apply for bail directly to the police or court. If the accused cannot provide
surety within seven days, they must be released on personal bond, reflecting the presumption of
their indigence.

Section 436A: Introduced in 2005 for undertrial prisoners, this provision allows release on
personal bond if the accused has served half of the maximum sentence for the alleged offense.

Case Law:

In Maulana Mohammad Amir Rishadi vs. State of U.P, the Supreme Court ruled that prior
criminal history alone cannot deny bail.

In Arnesh Kumar vs. State of Bihar, the Court emphasized the need for police officers to avoid
unnecessary arrests and adhere to the procedural checklist under Section 41.
 2. Bail in Non-Bailable Offences

Under Section 437, individuals arrested for non-bailable offenses may be released on bail under
specific conditions:

 Bail cannot be granted if there are reasonable grounds to believe the accused is guilty of a
crime punishable by death or life imprisonment.

 If the accused has a history of serious convictions, bail may also be denied.

 However, certain categories (such as minors, women, or the infirm) may be granted bail
more readily.

Process: The court evaluates whether releasing the accused is just and proper. Additionally, if
the police believe there’s insufficient ground for the charge, they may release the accused on bail
without sureties.

3. Anticipatory Bail

Section 438 allows individuals who anticipate arrest for a non-bailable offense to apply for
anticipatory bail before being detained. The application can be made to a sessions court or the
High Court, which reviews the merits of the case and the applicant’s history.

Conditions: Section 438(2) stipulates that the applicant must:

 Appear for police interrogation when required.

 Avoid threatening or influencing witnesses.

 Not leave India without court permission.

Conclusion
The procedure of bail in the country needs to be changed. The recent amendments in the bail
procedure are not sufficient to cope up with the existing problems. The concept of bail bonds
needs to be replaced with some other effective instrument that will create deterrence in granting
bail. The bail procedure needs to make the poor friendly, the hefty amount charged by the courts
in the bail bond.

Bail Application

IN THE COURT OF ____________, ADDITIONAL DISTRICT AND SESSION JUDGE,

_____________ COURTS, ____________
IN THE MATTER OF:
LMN, ___________, Son of _________________ Years of Age, Working as _____ Residing at
__________
 ........... Petitioner
Versus
State of_________ Through PQR, Son of _________, ____ Years of age, Working as
__________ Residing at _______________
...........Respondent
FIR No.: ___________
U/s: ___________
P.S.: ___________
APPLICATION UNDER SECTION 439 OF THE CODE OF CRIMINAL PROCEDURE
1973 FOR GRANT OF BAIL
Most Respectfully Show:
1. That the present application under section 439 of the Code of Criminal Procedure 1973 is
being filed by the Petitioner for seeking grant of bail in FIR No. _________ registered at Police
Station_______________. The present petition is being moved as the Petitioner has been
arrested on _________ (give date) in connection with the said FIR. The petitioner is now in
judicial/police custody.
2. That the Petitioner is innocent and is being falsely implicated in the above said case as he
has nothing to do with the matter.
3. That the Petitioner is a law abiding citizen of India. The petitioner is gainfully carrying on
the business of ________ at ________. (Give details).
4. That the Petitioner is a responsible person and is living at the above mentioned address.
5. (Give all other relevant facts, which have led to the arrest or which show the petitioner's
innocence or disassociation with the alleged offence supposed to have been committed)
6. That the Petitioner is innocent and no useful purpose would be served by keeping him
under custody and this is a fit case for grant of bail. (It would be pertinent to mention as to the
stage of investigation or in case the charge sheet has been filed, whether charges have been
imposed, evidence has started, the length of the list of witnesses cited by the prosecution etc. as
these would all be mitigating circumstances)
7. That the Petitioner undertakes to abide by the conditions that this Honorable Court may
impose at the time of granting bail to the Petitioner and further undertakes to attend the trial on
every date of hearing.
8. That the Petitioner has not filed any other similar petition before this or any other
Honorable Court for grant of bail in case of the present FIR. (Or give details and results of
earlier applications)
PRAYER:
In view of the above stated facts and circumstances it is most respectfully prayed that this
Honorable Court may be pleased to
a. Grant bail to the Petitioner in connection with FIR No. ________ registered under section
________, for the offence of ________ (give sections) at Police Station _________ (give place).
b. Pass any other such order as this Honorable Court may deem fit and proper in the interest of
justice.
XYZ........Petitioner
Through
ABC.........Counsel
Place:
Dated:
b. Application under Section 125 CRPC
Section 125 of the CrPC acts as a lifeline for vulnerable dependents like wives, children, and
parents, ensuring they aren’t left destitute when those responsible for their care neglect their
duties. It provides a simple legal mechanism to secure financial support and uphold basic rights
to survival.

Maintenance application under section 125

Maintenance law under section 125 of CrPC has been enacted as a measure of social justice to
provide financial assistance (maintenance) to wife, children and parents, so as to prevent them
from falling into destitution. A maintenance application made under this section is presented
before the Magistrate, provided at such monthly rate as the Magistrate deems fit. This further
provides an option of an interim application to be filed under its sub section 3 during the course
of proceeding.

Grounds to claim maintenance

 The person from whom maintenance is claimed must have sufficient means but is neglecting
or refusing to provide maintenance.
 The wife can file an application if:
 She is unable to maintain herself.
 She is living separately for justifiable reasons (cruelty, desertion, etc.).
 However, if she is living in adultery or has willingly separated without a valid reason, she
may be denied maintenance.
 Children and parents may file when they lack the means to survive, and the person
responsible for maintaining them refuses to do so.

Who Can File?

The following individuals are entitled to claim maintenance under Section 125 CrPC:

1. Wife: A legally wedded wife, including divorced wives, who cannot maintain herself.

2. Children: Minor children, including illegitimate children, whether married or unmarried,

who are unable to support themselves.

3. Parents: Aged or infirm parents, including fathers and mothers who are unable to
maintain themselves.

Procedure for Filing

1. Drafting the Application: The applicant (wife, child, or parent) must file an application
in the appropriate magistrate court, stating the grounds for claiming maintenance.
 2. Evidence and Hearing: The court will examine the application and hear both parties.
The claimant must prove that they are entitled to maintenance and that the person from
whom it is claimed has refused or neglected to provide support.

3. Court’s Decision: After reviewing the evidence, the court may order the respondent
(husband, father, or son) to pay a monthly allowance as maintenance.

Key Points

 Quantum of Maintenance: The amount of maintenance depends on the income of the

respondent and the reasonable needs of the claimant.

 Enforcement: If the respondent fails to comply with the court's order, the claimant can
seek enforcement through the court, which may result in the attachment of property or
even imprisonment.

Recent Amendments and Case Law

 In Rajnesh v. Neha & Anr., the Supreme Court issued significant guidelines to ensure
uniformity and efficiency in maintenance cases. The Court highlighted key factors
affecting the quantum of maintenance, including the age and occupation of both parties,
the duration of the marriage, costs related to raising minor children, and any serious
health conditions requiring ongoing medical expenses. It also emphasized that interim
maintenance should be granted during the pendency of the case, with reasoned orders
passed within four to six months. Additionally, the Court clarified that maintenance
should generally be awarded from the date of filing the application, ensuring fairness. A
mandatory Affidavit of Disclosure was introduced, requiring both parties to disclose
their assets and liabilities in a standardized format tailored to different demographic
profiles. These guidelines aim to reduce delays, eliminate inconsistencies, and provide
timely and well-reasoned judgments in maintenance cases, ensuring justice is served
efficiently.

 The Supreme Court has held that even divorced wives are entitled to maintenance under
Section 125, provided they have not remarried and are unable to maintain themselves.

 In Shah Bano Case (1985), the court emphasized the broad and secular application of
Section 125, ensuring that it applies to all individuals, regardless of religion.

Sample Maintenance Apllication

PETITION BY WIFE UNDER SECTION 125, CRPC FOR MAINTENANCE

IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, ______

MAINTENANCE PETITION NO. ______

IN THE MATTER OF:

Xyz, age: ____, W/o Abc, D/o _____,

Residing at __________

………………………. Petitioner

Versus

Abc, age: ______, S/o ____________,

Residing at ____________

……………………Respondent

APPLICATION FOR MONTHLY MAINTENANCE ALLOWANCES FOR THE WIFE UNDER

SECTION 125 OF CRIMINAL PROCEDURE CODE, 1973

The above name petitioner respectfully shewoth as under:

1. The Applicant is a legally married wife of the Respondent solemnized on _______ according
to Hindu rites, and custom. Both of whom cohabited and lived as husband and wife for 5
years at ____________________. Attached herein under as Annexure 1 and 2 are the
Certified copy of the extract from the concerned register and a copy of Wedding card.

2. That after initial few months of marriage the Respondent led a life of drunkenness and
habitual lewdness. The Respondent is a man of unusual temperament and constantly lost all
sense of decorum and used abusive language.

3. That the Applicant was subjected to cruelty at the hands of respondent without any
provocations whatsoever, this made the petitioners life miserable by constant abuse and
immense torture mentally and physically.

4. That additionally the Respondent stopped maintaining and fulfilling basic demand of the
Applicant including house hold expense. Ultimately the acts of Respondent leaving here with
no other option, and compelled to leave here matrimonial house on _________as mention
above to her paternal house.

5. The Petitioner is in midst of a severe financial crisis and has become totally bankrupt, unable
to maintain herself and her parents. As the Applicant doesn’t have any source of income
neither does possess any technical qualification to be employed.

6. That the Applicant along with his elderly parents have been subsisting on meagre pension
amount of 5,000 of his farther, who is chronically ill having recurring medication expenses.
The Applicant is in midst of a severe financial crisis and has become totally bankrupt, unable
to provide herself nor her parents, and their survival is at stake. Further details of assets and
liabilities of the Applicant are enlisted in the Affidavit of discloser attached herein below
marked as Encloser A.
 7. That the Respondent is financially sound having multiple sources of income primarily earning
a handsome amount of 1,00,000 from his telecommunication business and additionally from
other sources. Having enough resources, the Respondent has yet overlooked his responsibility
to provide for his lawfully wedded wife.

8. That the above relation between the parties have deteriorated to an extent that there is no
possibility of compromise between them.

9. It is, therefore, prayed that the Hon’ble Court may graciously be pleased:
a. To direct the said Respondent to pay a sum of ___________per month to the said Petitioner as Monthly
maintenance, or at such rate as this Hon’ble court may deem fit;

b. Pending the hearing and final disposal of this petition, the Respondent be directed to pay Rs. 10,000/-
towards maintenance of the said Petitioner from the date of application, as instant interim relief;

c. to direct the respondent to also pay the said amount of _________in lump sum towards the costs of this
proceeding, so as to pay the professional fees of the lawyer.

d. To pass such other and further reliefs as this Hon’ble Court may deem fit and proper.

VERIFICATION

I, Xyz, wife of abc, aged __ years, Indian Inhabitant, Occupation – Unemployed, residing at
______________, do solemnly affirm and declare that whatever is stated in the foregoing petition is true
to the best of my knowledge and belief.

Petitioner

Solemnly affirmed at _______

On this date ______________

Identified by ________.

Advocate for the Petitioner

Sample interim maintenance application

APPLICATION FOR INTERIM MAINTENANCE UNDER SECTION 125 (3) CrPC

In the Court of Metropolitan Magistrate, ___________

IN THE MATTER OF:

Xyz, age: ____, W/o Abc, D/o _____,

Residing at __________

………………………. Petitioner

Versus

Abc, age: ______, S/o ____________,

Residing at ____________

……………………Respondent

Subject: Application under section 125 (3) of the code of Criminal Procedure with the
prayer to grant interim maintenance during the pendency of the main petition

The above name petitioner respectfully shewoth as under:

1. That the petitioner has lodged a petition under section 125 of the Code of Criminal
Procedure for the grant of maintenance in addition to the current application before
this learned court.
2. That the grounds enlisted in the main petition may kindly be read as part and parcel of
the present application, as they have not been reproduced in order to avoid repetition.
3. That there is a prima facie case in favour of the petitioners and against the respondent
based on the grounds set forth in the main petition. And, if interim maintenance is not
granted the Applicant would face substantial difficulty in meeting their day-to-day
expenditures, as already mentioned that the Applicant has become wholly dependent
on her father’s meagre pension.
4. That the Applicant having no independent source of income nor does she posses any
technical qualification to be employed while the Respondent has sufficient source of
income has not even cared to offer a single pie to the Applicant for her maintenance,
as such the Respondent has breached the obligatory marital duties and obligations to
maintain the petitioners.
5. It is, therefore, most respectfully prayed that the application be granted and that the
Respondent be ordered to pay the Applicant an amount of Rs_______ /- as an interim
maintenance from the date of filing of the application till its decision on the merits.
6. The respondent be also directed to pay litigation expenses of the present petition to
the petitioners.
Applicant.

Through Counsel.

(_____________)
Advocate.

VERIFICATION

I, Xyz, wife of abc, aged __ years, Indian Inhabitant, Occupation – Unemployed, residing at
______________, do solemnly affirm and declare that whatever is stated in the foregoing
petition is true to the best of my knowledge and belief.

Petitioner

Solemnly affirmed at _______

On this date ______________

Identified by ________.

Advocate for the Applicant.

c. Compounding of Offences by Way of Compromise under

Section 320 CRPC
In criminal law, not all conflicts need to end in long-drawn-out courtroom battles. For less severe
offences, the law provides an opportunity for the parties to settle their disputes amicably through
compromise.
Section 320 of the Criminal Procedure Code (CrPC) is a powerful provision that allows the
victim and the accused to reach a mutual understanding, avoiding the often painful and costly
experience of a full trial. This approach not only saves time and resources but also encourages
reconciliation between the parties, especially when personal or community relationships are at
stake.

Key Aspects of Compounding Under Section 320 CrPC:

1. Nature of Offences: Compoundable offences are those that can be settled or

compromised between the parties involved, allowing for the withdrawal of charges and
the discontinuation of legal proceedings. Offences that can be compounded are typically
of a less serious or non-heinous nature. Section 320 divides these into two categories:
o Compoundable without the permission of the court: Offences such as
defamation, causing hurt, or criminal trespass can be compounded by the victim
directly.
o Compoundable with the permission of the court: More serious offences like
theft, criminal breach of trust, or grievous hurt require the court’s approval before
a compromise can be reached.
2. Compounding Procedure:
  The victim and accused must both agree to a compromise.

 If the offence is compoundable without court permission, the parties can approach the
magistrate, and the case is closed upon their agreement.

 For compoundable offences requiring the court’s permission, the court must assess
whether the compromise is genuine and made without coercion.

3. Effect of Compounding: Once an offence is compounded, the accused is acquitted, and

the case is closed. It essentially ends the criminal proceedings.

4. Non-Compoundable Offences: Non-compoundable offences cannot be settled or

compromised between the parties. Legal proceedings must continue, and the court
typically determines the outcome. Not all offences can be compounded. Serious crimes
such as murder, rape, or dacoity cannot be compromised as they affect the fabric of
society and public interest.

Some of the examples of non-compoundable offences – Where the court’s permission is

required:

 Voluntarily causing hurt by dangerous weapons or means – Section 326

 Fraudulent execution of a deed of transfer containing a false statement of
consideration – Section 423
 Wrongfully confining a person for three days or more – Section 343
 Assault or criminal force on a woman with the intent to outrage her modesty – Section
352
The compounding of offences under Section 320(i) strikes a balance between the pursuit of
justice and the restoration of peace, offering a more flexible resolution in less serious cases. It
empowers individuals to take control of their disputes and settle them on their own terms,
fostering a sense of closure and often preserving relationships.
Section 320 Summary
 320(3): Offences that are compoundable also include aiding or abetting such offences and
attempts to commit them. For example, if someone assists in committing a theft, that act
of assistance is also compoundable.
 320(4): If the victim is a minor, of unsound mind, or deceased, a guardian can compound
the offence on their behalf, with court approval required.
 320(5): Compounding is not allowed if the accused is on trial or has been convicted for a
compoundable offence, unless permitted by the court.
 320(6): The High Court and Sessions Court can grant permission to compound offences
under their revisionary powers as per Sections 401 and 399 of the CrPC.
  320(7): Individuals facing additional punishment or different types of punishment for
previous convictions cannot compound an offence.
 320(8): If an offence is compounded with court approval, the accused is acquitted,
regardless of whether an FIR was filed or trial had begun.
 320(9): Only offences explicitly listed under this section can be considered
compoundable; those not included cannot be addressed under Section 482 of the CrPC.

Basis of
Compoundable Offences Non-Compoundable offences
Distinction

The nature of the offence is not as While the nature of the offence is serious in
serious in the instance of a the non-compoundable offence. For
compoundable offence. For example, example, assault or criminal force on
Nature of crime
criminal breach of trust, voluntarily women with intent to outrage per modesty,
causing grievous hurt, etc. are dishonest misappropriation of property, etc.
compoundable offences. are non-compoundable offences.

Charges brought against the accused Charges against the accused cannot be
Withdrawal of
for a compoundable offence may be dropped while they are pending for a non-
charges
dropped or withdrawn. compoundable offence.

A private person is the only one who A non-compoundable offence has an impact
Affected parties is impacted by a compoundable on both private individuals and society as a
offence. whole.

For a compoundable offence, a

A non-compoundable offence may only be
Compoundability settlement may be reached with or
quashed; it cannot be compounded.
without the court’s approval.

In compoundable offences, cases are Cases are brought by the state in the non-
Case filing
often filed by an individual. compoundable offence, however.

Application for Compounding of offence under 320 Cr PC

Format of application for compromise under section 320 of Criminal Procedure

Code.

IN THE COURT OF _______________ JUDGE AT _______________

CRIMINAL COMPLAINT NO _________ OF 20__

IN THE MATTER OF
STATE OF __________ Complainant

VERSUS

Mr. ____________________

_______________________

_______________________ Accused

Under Section __ of IPC

P.S.______________

Last Date of Hearing: ____________

Next Date of Hearing : ___________

APPLICATION UNDER SECTION 320 OF CRIMINAL PROCEDURE CODE

MOST RESPECTFULLY SHOWETH:

1. That the above mentioned case is pending trial before this Hon'ble Court and the same is
fixed for _____.

2. That accused is facing trial under section ____, ____ of Indian Penal Code on the basis of
Complaint given by the Complainant.

3. The case was initiated on FIR filed by the Mr. _____________ Resident of
__________________. That on intervention of mediators and well wishers, the accused has
been pardoned by the Complainant and both the Complainant and accused have reached an
amicable settlement of the matter, agreed and prepared to compromise the case.

3. That the compromise would save future and career of the accused and it will promote a
good relationship between them.

4. That this application is being moved jointly by the Complainant and Accused. The
Compromise Deed between the accused and Complainant is annexed as Annexure A.

5. That it is a fit case where this Hon'ble Court may be pleased to grant permission to
compromise and compound the case under Section 320 of Cr. PC.

PRAYERS

In view of the aforesaid facts and circumstance of this case, it is most respectfully prayed that
the Hon'ble court may be pleased:

1. To allow the parties to affect the compromise and acquit the accused in the interest justice;

2. To pass any other or further order (s) as this court may deem fit and proper in favour of
applicant, in the interest of justice.

APPLICANT

____________ADVOCATE
 Place:

Date:

IN THE COURT OF _______________ JUDGE AT _______________

CRIMINAL COMPLAINT NO _________ OF 20__

IN THE MATTER OF

Mr. ____________________ Complainant

VERSUS

Mr. ____________________ Accused

AFFIDAVIT

I ______________________ ____ years, S/d/o. _________________ R/o. ____________

______________ _____, do hereby solemnly affirm and declare as under:-

1. That I am the accused in the present case and as such I am well conversant with the facts
and circumstances of the present matter and am competent to swear this affidavit.

2. That the accompanying Application has been drafted by my counsel under my instructions
and the contents of the same have been read over and explained to me in vernacular and the
same are true and correct. That the contents of the same may be treated as part and parcel of
this affidavit as the same are not being repeated herein for the sake of brevity.

DEPONENT

VERIFICATION
Verified at ___________ on this __ day of ____. 20__ that the contents of the above affidavit
are true and correct to the best of my knowledge and belief and nothing material has been
concealed therefrom.

DEPONENT

d. Complaint under Section 138, Negotiable Instruments

Act, 1881

Introduction

In the world of financial transactions, cheques are often viewed as a symbol of trust and
reliability. However, when this trust is broken, and a cheque bounces due to insufficient funds, it
can lead to significant legal consequences.
Section 138 of the Negotiable Instruments Act, 1881 serves as a protective mechanism for
payees, enabling them to seek justice when faced with the dishonour of a cheque. This provision
not only addresses the financial implications but also underscores the importance of
accountability in commercial dealings.

key Elements of Section 138 of Negotiable Instrument

Act
To constitute an offence under Section 138 of the NI Act, the following elements need to be
fulfilled:

1. A cheque should have been issued by the payer for the discharge of a debt or other liability.

2. The cheque should have been presented or deposited by the payee within a period of six
months from the date of drawing of the cheque or within the period of validity of the cheque,
whichever is earlier.

3. The payee should have issued a notice in writing to the payer within 30 days of receipt of
information regarding the return of the cheque as unpaid from the bank.

4. The payer should have failed to pay the cheque amount within 15 days of receipt of the said
notice from the payee.

5. If the payer has not paid the cheque amount, the payee should have filed a complaint within
one month from the date of expiry of the grace period of 15 days. The complaint should be filed
before a Metropolitan Magistrate or a Judicial Magistrate of the First Class. (The court may take
cognisance of a complaint after the prescribed period if the payee provides a satisfactory reason
for the delay.)

The key ingredient for registering an offence under Section 138 of the NI Act is a failure of the
payer to make payment within 15 days of the service of the notice. If payment is made within the
said period, no offence is committed, but in the case of failure, the offence is perpetrated. Even
payment a single day after the completion of the notice period will attract prosecution under
Section 138.

If a person is convicted under Section 138 of the NI Act, he or she is punishable with two years'
imprisonment, or a fine, or both. As per the First Schedule of the Code of Criminal Procedure
(CrPC), 1973, cases filed under Section 138 are non-cognisable and bailable.

Grounds for Dishonour of Cheque under Section 138

Under Section 138 of the Negotiable Instruments Act, a cheque may be dishonoured for several
reasons, primarily related to insufficient funds. Here’s a detailed overview of the grounds
recognized for dishonour:

1. Insufficient Funds:
o The most common reason, where the funds in the drawer’s account are inadequate
to cover the cheque amount, or the cheque amount exceeds what can be paid
under the bank's arrangement with the drawer.

2. Account Closed:
 o If the drawer's account is closed before the cheque is presented, it signifies that
there are no available funds on the date of presentation, leading to an offence
under Section 138.

3. Stop Payment Instructions:

o When a drawer issues stop payment instructions after the cheque has been drawn,
this results in dishonour when the payee presents it for payment.

4. Refer to Drawer:
o This endorsement indicates that the bank did not honor the cheque due to
insufficient funds in the drawer’s account, making it a valid ground for
prosecution under Section 138.

5. Not a Clearing Member:

o If the cheque is returned with the endorsement "not a clearing member," it means
that the presenting bank is not part of the Reserve Bank of India’s clearing
system. In such cases, Section 138 does not apply unless the cheque is presented
to the correct bank.

6. Manifest Intent to Defraud:

o Courts have established that if the drawer exhibits a dishonest intention leading to
the cheque's dishonour, prosecution under Section 138 may proceed, irrespective
of the specific grounds for dishonour.

Conclusion

These grounds for dishonour highlight the responsibilities of cheque drawers to maintain
sufficient funds and communicate effectively with their banks. The provisions under Section 138
aim to protect payees and ensure accountability in financial transactions, allowing for legal
recourse when cheques are dishonoured
.

COMPLAINT UNDER SECTION 138, THE NEGOTIABLE

INSTRUMENTS ACT

IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, …..COURT

(DISTRICT ), DELHI
CRIMINAL COMPLAINT NO. OF
2017

S/o ….COMPLAINAN
R/o T

VERSUS

S/o
 R/o .…ACCUSED

JURISDICTION : P. S.

COMPLAINT UNDER SECTION 138 OF THE

NEGOTIABLE INSTRUMENTS ACT, 1881

MOST RESPECTFULLY SHOWETH:

1. That the Complainant is the owner and landlord of flat bearing No. , New Delhi.

2. That the accused is a tenant under the Complainant in respect of flat bearing No.
New Delhi, comprising of two bed-rooms, drawing-cum-dining room, study room,
kitchen- room, two bathrooms-cum-toilets and a terrace at a monthly rent of Rs. 2500/- for
residential purposes w.e.f. . True copy of the Lease-deed dated is annexed
hereto as Annexure – ‘A’

3. That on the accused handed over cheque bearing Nos. dated

for Rs. drawn on Bank, New Delhi to the complainant

towards rent of the said premises for the months of September, October and November,
…… the said original cheque is annexed hereto as Annexure – B.

4.That the Complainant deposited the said cheque in his account with the ……… (bank
name) on (date) but the same was dishonoured on presentation with the
remarks ‘REFER TO DRAWER’. The original returning memos dated in respect of the
said cheque is annexed hereto as Annexure – ‘C’.

5.That vide letter dated……., the Complainant called upon the accused to make the
payment of the amount covered by the dishonoured cheque. The said letter was sent to the
accused by Regd. A.D. as well as U.P.C. However, the accused failed to make the
payment of the amount in question to the Complainant.

6. That the cheque in question were returned unpaid because the amount standing to the
credit in the Accused’s account was insufficient to honour the cheque in question and as
such the Accused is liable to be prosecuted an punished under Section 138 of the
Negotiable Instruments Act, 1881 as amended upto-date.

7.That the Complainant has complied with all the requirements of Section 138 of the
Negotiable Instruments Act, 1881 as amended upto-date namely the cheque in question
were presented on i.e. within the period of its validity, the demand for payment was
made to the Accused on ………. i.e. within thirty days of the date or receipt of
information regarding the dishonouring of the cheque. True copy of the said demand dated
……. is annexed hereto as Annexure – ‘D’. The postal receipt and the U.P.C. thereof are
annexed hereto as Annexure-E collectively. The accused failed to make the payment
within fifteen days of the said notice and as such the Complainant has approached this
Hon’ble court within one month of the date of the cause of action. The Compaint is
therefore within time.

8.That the Hon’ble Court has jurisdiction to entertain and try the present complaint
because the offence is committed within the jurisdiction of this Hon’ble Court. (Mention
how the court has jurisdiction based on the facts).

PRAYER:

It is, therefore most respectfully prayed that his Hon’ble Court may be pleased to summon
the accused under Section 138 of the Negotiable Instruments Act, 1881 as amended upto-
date and the accused be tried and punished in accordance with law for the aforesaid
offence committed by him.

COMPLAINANT

Place THROUGH

Date ADVOCATE

Note : List of witnesses to be mentioned at the end of the complaint or separately

after writing short title of the complaint case –
1. Complainant;
2. Banker(s) of the complainant with record of the cheque.
3. Banker(s) of the accused with record of the cheque
4. Any other witness, if needed, as per the facts of the case
*****
e. Application under Section 482, CRPC
Section 482 CrPC
Section 482 of the Code of Criminal Procedure, 1973 is a pivotal provision that grants inherent powers
to the High Courts and empowers them to exercise their jurisdiction to prevent abuse of the legal process
and to secure the ends of justice. Hence, this section is one of the most important provisions that helps
ensure that the golden triangle of the Indian Constitution remains embedded in the judicial system by
ensuring that the High Court’s render complete justice.
Purpose of Section 482

1. Preventing Abuse of Process and Securing the Ends of Justice: The High Courts have the power to
intervene and prevent cases or complaints that are filed with mala-fide intentions or with the sole
purpose of harassing someone. Further, the High Courts can also ensure that justice is not denied or
delayed due to procedural issues.

2. Quashing Criminal Proceedings and Protection of Innocent Persons: The High Court can use its
inherent powers under this section to quash criminal proceedings, including Complaints and First
Information Reports and protect innocent persons who may be wrongly implicated in criminal cases
in case there is no evidence to support the charges against an individual.

3. Setting Aside Illegal Orders: The inherent powers under Section 482 can also be used to set aside
illegal orders passed by a court or a tribunal. The High Court may exercise these powers to set aside
orders that are not sustainable in law, or orders that have been passed without jurisdiction or in
violation of the principles of natural justice.

Key Principles of Section 482

1. Inherent Powers of High Court: Section 482 empowers the High Court to make orders
necessary to ensure that justice is delivered. These powers are inherent, meaning they do not rely
on any specific law but are based on the court’s responsibility to ensure fairness in the legal
process.

2. Discretionary Power: The power under this section is discretionary. It means the court can
decide whether to exercise it based on the facts of each case. The application is assessed on a
case-by-case basis, and the court will only interfere if there is a compelling reason.

3. No Limitation Period: There is no statutory time limit within which a petition under Section
482 must be filed. However, unreasonable delay may weaken the merits of the application.

4. Relief Granted in Exceptional Circumstances: Courts use Section 482 sparingly and only in
exceptional situations. They ensure that it is not used as a substitute for a full trial but rather as a
way to prevent abuse of the court's process.
Grounds for Filing an Application Under Section 482

An application under Section 482 can be filed on various grounds, including:

 Lack of Evidence: Where there is insufficient evidence to support the charges, and continuing
the trial would amount to harassment.

 False or Vexatious Prosecution: If it appears that the criminal proceedings were initiated with
malicious intent or to harass the accused, the court can quash such proceedings.

 Non-Applicability of Legal Provisions: If a person is charged under provisions of law that do

not apply to the case, the High Court can step in to quash the proceedings.

 Violation of Fundamental Rights: If the accused's constitutional rights, such as the right to a
fair trial, have been violated, Section 482 can be invoked to address this breach.

Procedure for Filing an Application Under Section 482

1. Filing the Petition: A petition under Section 482 must be drafted, stating the relevant facts, the
grounds on which the application is based, and the relief sought. It should be concise, supported
by legal arguments, and accompanied by certified copies of the relevant documents, such as the
FIR or chargesheet.

2. Hearing: The High Court will hear the application, often issuing notices to the opposite party,
including the police or complainant, to present their version. The court considers the
submissions, scrutinizes the legal grounds, and decides whether the proceedings should continue
or be quashed.

3. Order of the Court: After hearing the matter, the High Court may:

o Quash the proceedings entirely.

o Direct the lower courts to expedite the trial.

o Provide interim relief, such as staying the proceedings while the application is under
consideration.

Limitations of Section 482

1. Not a Substitute for Appeal or Trial: Section 482 is not meant to replace the appellate process.
It is only used in cases where continuing the proceedings would be an abuse of justice.

2. No Interference in Factual Disputes: The High Court generally avoids interfering in cases
where disputed facts or evidence are involved. These are matters for the trial court to resolve.

3. Limited to Criminal Matters: The scope of Section 482 is limited to criminal matters. Civil
disputes or issues that arise outside of criminal law cannot be addressed through this section.
Key Judicial Interpretations of Section 482

1. Bhajan Lal Case (1992): In this landmark case, the Supreme Court laid down guidelines for
when FIRs can be quashed. These include situations where the allegations in the FIR do not
disclose a cognizable offence, the proceedings are malicious, or the complaint is based on
personal vendetta.

2. State of Haryana v. Bhajan Lal (1992): The Supreme Court highlighted that Section 482
should be used sparingly and only in cases where the abuse of process is clear and evident.
(QUASHING PETITION FORMAT)

IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

Crl. M.C. /xxxx

IN THE MATTER OF:

Veeru ………..Petitioner

VERSUS
State (NCT of Delhi) & Anr ………… Respondents

FIR No: xx/xxxx

U/s: 34, 406 and 498A I.P.C.

P. S.: Ramgarh

PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 R/W
ARTICLE 226 OF THE CONSTITUTION OF INDIA SEEKING QUASHING OF FIR
XX/XXXX WITH P.S RAMGARH , DELHI AND ALL PROCEEDINGS ARISING
THEREFROM IN LIGHT OF SETTLEMENT BETWEEN THE PETITIONER AND THE
RESPONDENT NO. 2
TO,

THE HON’BLE CHIEF JUSTICE,

AND HIS COMPANION HON’BLE JUDGES

OF DELHI HIGH COURT

MOST RESPECTFULLY SHOWETH:

1. That the present petition is being filed and preferred by the Petitioner and Respondent No. 2 seeking
quashing of FIR no. xx/xxxx registered with Police Station Ramgarh, Delhi under sections 34, 406 and
498A I.P.C. and all proceedings emanating therefrom. The petitioner and the Respondent No. 2 very
respectfully submit before this Hon’ble Court that the matter has been settled between the parties in full
and final manner and now there is no grievance left between the parties. The parties i.e. the Petitioner
and the Respondent no. 2 have settled their disputes via Court Intervention and assistance of counsels.
Now there is no grievance left between the parties, hence no useful purpose shall be served by
continuing the proceedings in the said FIR. The copy of FIR No. xx/xxxx registered with P. S.
Ramgarh, Delhi is annexed herewith and marked as Annexure – P1.

BRIEF FACTS:

2. The brief facts of the case are as under:

(i) That disputes and differences arose between the Petitioner and the Respondent No. 2 . The
Respondent No. 2 had filed a Police Complaint before the Assistant Commissioner of Police on xxxxat
Police Station, Ramgarh, New Delhi u/s 498A and 406 of the Indian Penal Code,1860 and under dowry
Act

(ii) The said complahint resulted in FIR bearing No. xxxxxx dated xxxxx U/s 498A, 406 and 34 of
Indian Penal Code, 1960 registered at P.S. Ramgarh. FIR is annexed herewith and marked as Annexure
P1.

(iii) The charge sheet was filed the Petitioner before the MM, Mahila Court, West District, Tis Hazari
Courts, Delhi.

(iv) That on joint request of the Parties the matter was referred to Tis Hazari Mediation Centre on
xxxx .The matter was settled amongst parties in mediation at Tis Hazari Mediation Centre, Tis Hazari
Courts on xxxxx. Settlement Agreement is annexed herewith and marked as Annexure P2.

(v) As per the settlement agreement, Rs. 1,00,000/- was paid to the Respondent No. 2. First motion
petition for divorce by way of mutual consent was allowed on xxxxxx. Further second motion petition
for divorce by way of mutual consent U/s 13 B of Hindu Marriage Act, 1956 was allowed vide
judgement dated xxxxx by Hon’ble Principle Judge, Family Courts, West District, Tis Hazari Courts.

(vi) That in view of aforementioned facts, the instant Petition is being filed.

GROUNDS:

3. That the instant Petition is being filed inter alia on following grounds:

A. Because in view of the said settlement the success of prosecution is remote and thereby the
continuation of proceedings in the said FIR shall be sheer wastage of precious judicial time.
 B. Because it has also been held by Hon’ble Supreme Court in landmark case “Gian Singh Vs. State
of Punjab & Anr.” (2012)10SCC 303 that even if offences are non compoundable the High Courts are
having inherent jurisdiction to quash the FIR under section 482 of Code of Criminal Procedure.

C. Because again in “Narinder Singh & Ors Vs State of Punjab & Ors”( 2014) 6 SCC 466 , it has been
held by the Hon’ble Supreme Court that even non compoundable offence can be quashed by the High
Court under Section 482 of Code of Criminal Procedure”. Para 31 (I) of the said Judgment reads as:

“(I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in
the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the
Code, the High Court has inherent power to quash the criminal proceedings even in those cases which
are not compoundable, where the parties have settled the matter between themselves. However, this
power is to be exercised sparingly and with caution”

4. That the petitioners belong to respectable families and have deep roots in the society and grave
injustice shall be caused to them if the present petition is not allowed.

5. That the present petition has been filed bona fide and in the interest of justice.

6. That in the given fact and circumstances of the case, the Petitioners have no other resource or remedy
available except for filing the present petition and seek indulgence and by exercise of inherent power in
order to prevent abuse of process of law and to secure ends of Justice.

7. That the Petitioners have not filed any other similar petition before this Hon’ble Court or before the
Hon’ble Supreme Court of India.

PRAYER
In the facts and circumstances of the case, it is therefore prayed that this Hon’ble Court may be pleased
to:

1. Quash the FIR No.xx/xxxx registered at P.S.-Ramgarh, Delhi u/s Section 498A, 406 and 34 I.P.C.
along with all the proceedings emanating there from;

2. Pass any such further order(s)/direction(s) as this Hon’ble Court deem fit and proper in interest of
justice.
PETITIONER
Through
Counsel
Place: New Delhi
Date:
Note: Quashing Petition has to be accompanied with Memo of Parties, Synopsis, List of Dates, Affidavit
etc.