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Drafting is a skill requiring:

1. Knowledge of law
2. Ability to deal with the abstract concepts – abstract concept means filling up the things
3. Organizational skills –

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Pleading -defined under Order 6 Rule 1 of the CPC

Pleading” shall mean plaint or written statement. Plaint is a statement of claim in which the
plaintiff sets out his cause of action with all necessary particulars. Written statement is a statement
of defences which the defendant deals with every material facts aleashed by the plaintiff in the
plaint and also sets any new facts which tells in his favour adding such objections as he wishes to
take to the plaint.

Pleadings are the statement of the facts in writing drawn up and filed in court by each party to the
case stating therein what his contention shall be at the trial and giving all such details as his
opponent need to know on order to prepare his case in answer.

Admitted facts are proved facts.

Pinson vs Lloyds bank Ltd

The functional of pleadings is not simply for the benefit of the parties and perhaps primarily for
the assistance of the court by defining with precision the area beyond which without the leave of
the court and consequential amendment of the pleading, conflict must not be allowed to extent.
The object of the pleading is to give a fair notice to each party of what the opponent case is to
ascertain the precision, the points on which the parties agree and these on which they differ and
thus to bring the parties to a definite issue.

Pleading also include:

1. Subsequent pleading
2. Additional pleading

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Procedures in the CPC by the parties to get justice
1. First thing is the jurisdiction – it is the statute which defines the jurisdiction. There are
three types of jurisdictions:
a. Pecuniary – value of the suit
b. Territorial jurisdiction- this is decided based on:
i. Where the Subject matter is
ii. Where the defendant reside
iii. Cause of action
c. Subject matter
2. Stay- temporary stopping order. If there is any other parallel matter being filed at some
other place
3. Res Judicata- whether the matter has been decided already by the court or not. here:
a. The matter must be of similar nature
b. Between the same parties
4. Plaint – when the plaint is submitted, there things:
a. May be submitted
b. May be returned – when the jurisdiction is not clear, the plaint is time bound
c. May be rejected – in case of undervaluation,
5. Issuing a summon to the parties – invite by the court to appear before the court
6. Appearance of the parties
7. Adjournments
8. Ex Parte orders – even after serving the summon, the other party has not appeared and so
the order has been passed
9. Interlocutory orders- in between, interim orders are passed and mostly, in the form of
injunctions
10. Written statement – in the defense
11. Examination of the parties –
12. Production of the document – there are primary document and the secondary document.
Primary document is the original document. Secondary document is submitted:
a. When the primary document cant be removed from the original place
b. When it is with the other parties
c. When the primary document is not available
13. Framing of the issue
14. Summoning and attendance of the witnesses
15. Affidavit-
 16. Final Argument and the judgement

Pleading –

it is a plaint or a written statement which does not have any specific formula for its drafting but it
has to be in such a manner that it has to be understood by the parties. It has 2-fold objective:

1. Give a fair notice to the other party

2. To ascertain what is being demanded or sought from the court

Functions of the pleading

1. Define the issues involved between the parties

2. To provide an opportunity to other side to met up the particular allegations raised against
them
3. It helps the court to adjudicate the matter

There can be new facts in a written statement. The other party will get a chance to rebut it.

Fundamental rules of pleading Given by odger

1. Pleading shall contain only a statement of fact and not statement of law-
2. Pleading shall contain all material facts and material facts only
3. Pleading shall state only the facts on which the party pleading relied and not by the
evidence on which it has to be proved- order VI Rule 2
4. Pleading shall state such material facts concisely but with precision and certainty –
(sometimes when there is confusion regarding the material facts, then all the facts has to be stated)

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Exception to statement of fact and not statement of law rule-

1. Foreign law – because foreign law is a statement of fact

2. Custom-
3. Mixed question of law and fact – the time limit as per the limitation act- this involves the
mixed question of law and fact
4. Legal pleas- when you are proving A caused the injury intentionally, then the A will take
plea that injury was not intentional but accident. These are the legal pleas that A will be
taking. For accident, you have to show:
a. Driving in a lawful manner
b. With proper care and caution
 5. Condition precedent – there are certain legal conditions required before you do any act.
For eg- a 90 days’ notice must be given before filing a suit against the government.
6. Inferences of Law- when some inferences are drawn on the basis of law. In neighbor, a
woman died and before marriage, you heard her crying and that 5 years to marriage have
not passed and thus you are drawing an inference to the law of dowry death.

In all these situations, you have to mention those things which are already mentioned in law as the
court will not assume these.

Pleading shall contain all material facts and material facts only

All the essential facts necessary to substantiate their issue which they are raising.

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Facta Probantia and Facta probanda

Facta probantia - facts used in the form of evidence and cant’ be pleaded in the pleading

Facta probanda - Which you mention in the pleading. This must be stated and not the facta
probantia

Exception to this:

1. All the above mentioned exceptions and

2. Whenever filing any writ, you need to mention the law also.

Example:

A got married to B and after five years, got married to C. B has brought a suit against A. Facts in issue is whether
the A has committed the bigamy or not?

Also, without the prior permission of the judge, the amendment cant be made in the pleading and
it is the discretion of the judge to allow or not allow the amendment.

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Section 11 in The Indian Evidence Act, 1872

11. When facts not otherwise relevant become relevant.

Facts not otherwise relevant are relevant -(1)if they are inconsistent with any fact in issue or
relevant fact;(2)if by themselves or in connection with other facts they make the existence or non-
existence of any fact in issue or relevant fact highly probable or improbable.
Illustrations

(a)The question is, whether A committed a crime at Calcutta on a certain day. The fact that, on
that day, A was at Lahore is relevant. The fact that, near the time when the crime was committed,
A was at a distance from the place where it was committed, which would render it highly
improbable, though not impossible, that he committed it, is relevant.

(b)The question is, whether A committed a crime. The circumstances are such that the crime must
have been committed either by A, B, C or D. Every fact which shows that the crime could have
been committed by no one else, and that it was not committed by either B, C or D, is relevant.

Additional Pleas

They can be added later on. This would mean either amending the plaint or when some of the
points are missing and thus, they are coming with new points in the written statement. This could
be added by the permission of the court.

Inconsistent plea

Inconsistent pleading is when a party presents a new claim or statement that contradicts their
previous pleadings.

What plaint contains?

1. The name of the court

2. Provision under which approaching the court
3. Which court are you filing- you have to go through the pecuniary limit of the lower courts
4. Facts of the case in the chronological order –
5. Prayer and relief – any other thing which the court deemed fit
6. Limitation period also has to be period

There has to be point wise either assertion or the denial of the fact by the other party.

If any additional point has to be added, it can be added but in the chronological order.

It should also be very precise but if the substantive point cant be completed in short sentences,
then can make the long sentences.

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Do’s and dont’s of plaints
 1. Names and places should be there correctly mentioned and spelled. To avoid the
confusion, you write thee names in the title and then address them as plaintiff only and
not mention the names again and again.
2. Facts must be stated in the active voice and not the passive voice
3. If and buts should not be used.
4. It should not be a vague sentence and should be a complete sentence
5. Necessary particulars of all the facts should be given in pleading
6. It should be numbered properly and divided into paragraphs
7. Every pleading shall be signed by the parties and the advocates and pleading must be
verified. Verification also must be done by some other parties who know the facts of the
case.
8. Jurisdiction of the court – most important is the pecuniary jurisdiction

Structure of the plaint

1. Heading and title –

a. name of the court in which the suit is filed. It would be written in capital letters. If
the suit is in High Court, then you have to write that either it is under original
jurisdiction or the appellate jurisdiction.
b. Civil suit or criminal suit no and then year of the suit after a slash (/).
c. Names of the parties (A, son of B, resident of xyz and write “plaintiff” and then
about defendant)
d. Nature of the suit –
2. Body of the plaint
a. Introductory fact. Every fact in a separate para and every para have to be
numbered. The para must in sequence and chronological order. Sub-para must also
be numbered
b. “The above-named plaintiff states as follows”- after this para 1 will start
c. In substantive portion – statement of all facts constituting the cause of action
and the facts showing the liability of the defendant. But before this, you have to
mention the introductory fact.
d. Formal portion- date when the cause of action arose
e. Statement of jurisdiction and statement of facts related to jurisdiction
f. Statement related to the valuation of the suit and the court fees
g. Limitation period –
 h. Relief – every plaint shall state the specifically the relief which the plaintiff has
claimed either simply or in the alternative and it shall not be necessary to ask for
general or to the relief which may always be given as the court may think just to
the same extent as if it had been asked for. A party can claim the special damage.
i. Signature (both plaintiff and advocate) and verification (by plaintiff). Language of
the verification- I, A, son/daughter of B, the aforesaid plaintiff/defendant do
hereby verify and that content of the para _ are true to the best of my
knowledge and that content of the para_, I believe it to be true based on the
information I have received
j. Order 6 rule 15- affidavit should also be attached

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Frame of suit- order 2 of CPC

1. Every suit shall as far as practicable be framed so as to afford ground for final decision
upon the subjects in dispute and to prevent further litigation concerning them.
2. Suit to include the whole claim. —

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in
respect of the cause of action; but a plaintiff may relinquish and portion of his claim in
order to bring the suit within the jurisdiction of any Court. (Interest reipublicae ut sit finis
litium” is a Latin phrase that translates to "it is in the interest of the state that there be an end to
litigation")

4 essentials to suit

1. Two or more parties to suit

2. Cause of action
3. Subject matter
4. Relief

Md vs Mahbub Ali 1949 Privy Council – cause of action means every fact which will be
necessary for the plaintiff to prove that it traverses in order to support his right to the judgement.
Where the claim in the new suit is in fact founded upon a cause of action distinct and separate
from that which was the foundation of the former suit. It includes not only the act which infringes
the right but also the right itself and the circumstances giving it birth.

Joinder, non-joinder and misjoinder

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Amendments of the pleading

The court will not allow the amendment if it substantially prejudices the right of other party.

Grounds FOR AMENDMENT

1. When the opposing party points out any defect in the plaint. The defect comes to the
judicial notice in two ways:
a. When the opposite party points out the defect
b. The plaintiff himself/herself points out the defect

Once the court has allowed the amendment, then the party have to do it.

When court can allow the amendment?

1. In cases other than these exception for not allowing the amendment
a. When the intention of the party is mala fide
b. If the amendment is sought at the time that it may cause injustice to the opposite
party
c. If the proposed amendment may cause examination of the case from the new point
d. If the proposed amendment may produce a new cause of action
2. If the proposed amendment may not change the subject matter of the suit, permission may
be given by the court for such amendment of pleadings under following ways
a. The court may allow the amendment of initial cause of action to clarify the points
of controversy between the parties to the suit without changing the nature and
object of the suit
b. To add new cause of action without changing the nature and scope of the suit
 c. The court may allow new relief clause or prayer
d. Presentation of alternative cause of action
3. If the proposed amendment is based on Bonafide intention of the parties to remove errors
4. It is the sole discretion of the court to allow or not to allow the amendment in the pleading.
The discretion must be exercised in the interest of the justice and not the interest of the
parties
5. There is no rule that the amendment which deprives the opposite party of the plea of
limitation should always be refused
6. That the rules related to amendment of pleadings must be exercised on the basis of rule of
justice, equity and good conscience.

When court will not allow?

1. Where the amendment allowed would introduce a totally new and inconsistent case
2. Where the proposed amendment will cause unnecessary delay in the fair trail of the case
3. Where the amendment is not necessary for the purpose of determining the issue between
the parties. It is not substantive to the case
4. Where the amendment would cause the opposite party such injury which cant be
compensated by cost
5. Where the amendment is not brought in good faith or with malafide intention
6. Where there has been excessive delay in filing the amendment
7. Where the amendment sought is of no substance
8. Where the effect of the proposed amendment would be to deprive the other party of the
legal right which has accrued to him by lapse of time
9. Where the amendment seeks to add to the plaintiff a fresh claim of new cause of action
which is barred by the law of limitation
10. Where the amendment allowed would begin the trial from beginning

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When the court allows the amendment, it becomes mandatory to do so – Rule 16 and 17 of Order
VI.

Four kinds of amendment that can be done-

a) Amendment as to the form of the pleading – technical things like signature is not there,
some points where names of the parties were misspelt – to remove such discrepancies, an
amendment is brought.
 b) Amendment as to the substance of the pleading – main content like addition of points to
the main cause of action, to remove frivolous or scandalous content from the pleading.

c) Amendment to the relief – sometimes when the suit is filed, probably the price of the suit
is not right due to price fluctuation, or there is a change in laws.

d) Amendment to the parties – if the necessary party is not joined, you need to amend the
pleading, to remove the names of the parties not important to the case.

Compulsory amendment – this is the inherent power under section 151 of the cpc

a) when the court says that it is important to amend (suo moto by the court calling any
particulars or better particulars if the court thinks that the pleading is incomplete or
determining the real question of issue between the parties (S. 151 of the CPC) – Rule 17
Order VI);
b) b) when an application is given by the opposite party and the same is allowed by the court
(Rule 16, Order VI) and if the party does not amend, it will be contempt of court.

Voluntary Amendment – party itself is filing for the amendment and since it is a discretionary
power, it has to be exercised with caution. It can be added by

1. Either by adding the particulars and this Can be done by the leave of the court
2. In the form of additional pleading
3. As per rule 17 of the order VI

Pre-requisite general condition for amendment

1. The application of the amendment is brought with the bona fide intention
2. The possibility of amendment will prejudice the other party as cant be compensated by
cost, it will cause such prejudice which cant be compensated by cost
3. The amendment is not such as to turn the suit of one character to another character

Parties to Suit

The party includes every person served with notice of or attending any proceeding although not
named in the report

1. Necessary party -in whose absence, no important decision can be given

2. Proper party - Even though it is not essential for the initiation of the suit but it is desirable
to have such party before the court in order to properly or completely adjudicate on the
matter. All necessary party are proper party but not vice versa .
 3. Interveners- has an interest in the property or the subject matter. They are third persons
not originally party to the suit but claim an interest in the suit
4. Representative party-
a. Party himself involved
b. Party have no interest – like trustee or the NGO
5. Party are not interested but bound to lend their name –

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Particulars of the pleading – as per MOGHA, particulars are the necessary details of the material
facts stated in the pleading. They are the various statements of claim or defense which the plaintiff
or the defendant has to make in the plant or the written statement. Particulars enable the party to
know what cases he has to meet at the trial and nothing comes as a shock or surprise to the party.
It also ascertain the nature or scope of the case. Sometimes they are considered as amendment in
the existing pleading.

Example – A suffered injury because of negligent driving. The plaint will have two facts-
introductory facts and then particulars and material facts. Time and place of the accident and injury
suffered by the person would constitute the particulars

Written statement –

It is the statement of the defense in writing and filed by the defendant in which he/she deals with
every material facts alleged by the plaintiff in the plaint and also states any new facts which may
be in his favour adding legal objections which he/she wishes to claim.

Order VIII Rule 1

Can any other person file the written statement? No

Order VIII Rule 9- Subsequent pleadings.—No pleading subsequent to the written statement
of a defendant other than by way of defence to set-off or counter-claim shall be presented except
by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any
time require a written statement or additional written statement from any of the parties and fix a
time of not more than thirty days for presenting the same.
Only in set off and counter claims, it can be without the permission of the court.

Rules regarding the framing of written statement

1. Rule 2 order VIII1- New facts must be specially pleaded.—The defendant must raise by
his pleading all matters which show the suit not be maintainable, or that the transaction is
either void or voidable in point of law, and all such grounds of defence as, if not raised,
would be likely to take the opposite party by surprise, or would raise issues of fact not
arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance,
or facts showing illegality.
2. Rule 3 order VIII- Denial to be specific.—It shall not be sufficient for a defendant in his
written statement to deny generally the grounds alleged by the plaintiff, but the defendant
must deal specifically with each allegation of fact of which he does not admit the truth,
except damages.
3. RULE 4 ORDER VIII- Evasive-denial.—Where a defendant denies an allegation of fact
in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is
alleged that he received a certain sum of money, it shall not be sufficient to deny that he
received that particular amount, but he must deny that he received that sum or any part
thereof, or else set out how much he received. And if an allegation is made with diverse
circumstances, it shall not be sufficient to deny it along with those circumstances.
4. Rule 5(1) of order VIII-

5. RULE 6 of order VIII- Particulars of set-off to be given in written statement.—(1) Where

in a suit for the recovery of money the defendant claims to set-off against the plaintiff's
demand any ascertained sum of money legally recoverable by him from the plaintiff, not
exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the
same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of
the suit, but not afterwards unless permitted by the Court, presents a written statement
containing the particulars of the debt sought to be set-off.
6. Rule 1A (1)- Where the defendant bases his defence upon a document or relies upon any
document in his possession or power, in support of his defence or claim for set-off or
 counter-claim, he shall enter such document in a list, and shall produce it in Court when
the written statement is presented by him and shall, at the same time, deliver the document
and a copy thereof, to be filed with the written statement.
7. RULE 1A(2)- Where any such document is not in the possession or power of the
defendant, he shall, wherever possible, state in whose possession or power it is.
8. RULE 1A(3)- A document which ought to be produced in Court by the defendant under
this rule, but, is not so produced shall not, without the leave of the Court, be received in
evidence on his behalf at the hearing of the suit.]

A fact neither admitted nor denied is deemed to be admitted until any disability has been associated
with that person.

Rule 2 order VIII of the cpc- New facts must be specially pleaded.—The defendant must raise
by his pleading all matters which show the suit not be maintainable, or that the transaction is either
void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely
to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as,
for instance, fraud, limitation, release, payment, performance, or facts showing illegality

ORDER VII RULE 11d- The plaint shall be rejected in the following cases:— where the suit
appears from the statement in the plaint to be barred by any law;

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Structure of the written statement

1. Heading
a. Name of the court
b. Case no
c. Description of the parties
2. Either admit or deny the facts
3. Objection in point of law- any plea wrt point of law
4. Counter claim

Body of written statement – 2 parts

1. Allegations made by the plaintiff in the plaint, whether they are admitted or denied
2. 2nd part is of the defences the person wants to take- it constitutes of the special pleas
 Different kinds of defences

Traverse

The defendant may deny, refuse or reject the fact made by the plaintiff in the plaint.

3 things about traverse

1. Rule 3 order VIII- must be specific and absolute

2. Rule 4 order viii- must not be evasive
3. That the allegation of fact not Denied shall be deemed to be admitted – rule 5(1) order
VIII

Matters which need not be traversed

1. Point related to law- point wrt to the absence of the cause of action
2. No new denial in the traverse until it has been stated in the plaint
3. Denial must be only of the fact stated in the plaint
4. Should not traverse what has not been alleged
5. The defendant need not plead to the prayer or claim for relief in the plaint

Confession and avoidance- the defendant may admit the alleged allegation by plaintiff and avoid
their effect by asserting fresh facts showing some justification or excuse of the matter charged
against him or some discharged or released from it. Eg- Yes, I hit him but didn’t use any weapon.

Objection to the point of law – there can be an admission of the fact and there could be a
rejection with respect to the statement of objection to law, basically as to what is required by law
and not the law. For example, there is a claim made by the party but the cause of action is not
there and thus, cause of action being an important part of the suit, this is a defect in the point of
law itself.

5/2 (Vidhi’s Notes)

Counter claim – order VIII Rule 6
A setoff needs to be from the same cause of action.

Conditions for set – off

a) The suit must be for recovery of money.

b) The amount claimed to be set-off must be an ascertained sum of money.

c) It must be legally recoverable from the plaintiff (must not be barred by limitation)

d) It must not exceed the pecuniary jurisdiction of the court.

e) Both the parties must fill the same character as they fill in the plaintiff’s suit – both
plaintiff and defendant should be in the character of claiming something.

f) Order VIII Rule 6 says that particulars of set-off must be stated in the written
statement.

There are two kinds of set-off – equitable set-off and legal set-off.

Counterclaim [Order VIII, Rule 6A] – claim set up against the plaintiff in the same suit being
raised on a cause of action, it is that claim of the defendant which he may base on any of the cause
of action whether related with plaintiff or not for some ascertained or unascertained sum of money.
There could be a combination of cause of action if the parties are same or joinder of
defendants for similar cause of action. The counterclaim should not exceed the pecuniary
jurisdiction of the court, so, the relief to be claimed from the other party should be decided first
and then the court before which you want to go to should be finalised. The counterclaim has an
effect of the cross suit and the counterclaim would be treated as a plaint if the plaintiff files a
written statement to the counterclaim.

Rule 6C, Order VIII – normally, there is a different cause of action in a counterclaim, so if an
independent suit is demanded by the plaintiff on the basis of that cause of action, giving reasons,
the court may allow that if it deems fit [this is the defence that a plaintiff can bring forward for the
counterclaim].

Rule 6D – if in any case in which the defendant sets up a counterclaim

6E, F and G

Rule 7 and 8 of Order VIII – every claim has to be in a separate paragraph, separately and
distinctly mentioned.

Note – know the jurisdictions of district court, sessions court, consumer courts, judicial
magistrate.

Special defences –

Rule 2, Order VIII – fraud, limitation, facts pertaining to illegality, specific performance. Defences
to be pleaded specifically:

Limitation

Section 3 of the limitation act –

 Limitation period comes as a defence.

Defence of release

I have given 10 lakhs to someone in 2000 and decided that he will return in 2002 years. I have
brought a suit after 3 years of the passing of 2 years i.e, in 2007. The limitation period has passed.
I can still bring the suit if the opposite party admits somewhere that the loan was taken. Suppose,
he has returned 9 lakhs rupees and waived off the remaining amount. This is the release. Now, if
later he wants to claim that one lakh amount, then the defendant can bring that release receipt as
evidence. Oral waiver is not applicable.

Acquiescence

Silence in some circumstances leads toa Acquiescence. This is where the person had the duty to
speak but remained silent. This is Acquiescence. You have to prove how this silence can amount
to defence.

Person chooses to remain silent. If a person has a duty to speak but chooses to stay silent, his
acquiescence would amount to speech and it can be used as a defence. Acquiescence cannot be
taken as a defence – 1) when the person’s silence was there on a mistaken understanding of his
legal right; 2) the person must have done some act or spent some money on the faith of such
belief; 3) the party claiming legal right must be aware of his legal right and such right must be
inconsistent with the legal right claimed by the party pleading acquiescence; 4) the plaintiff must
have encouraged the defendant in the expenditure of his money or in some act which he has done
either directly or by abstaining from asserting his legal right.

Acquiescence is an equitable right/defence and must be pleaded specifically, meaning thereby, it

is not given under a law so the party taking this defence must prove it.

Estoppel – it is an evidentiary defence wherein you have to prove that a promise was given and
some positive or negative action was taken as per that promise.

Coercion, fraud

Dilatory pleas – they are there to delay the matter and affect the quick disposal of the matter, like
pleas of suit being not maintainable, joining of proper parties is not there etc.

At the end, there is a signature and verification.

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Affidavit - Any declaration reduced in writing before the person who has the right to administer
the oath.

An affidavit is a written statement in the name of person called the deponent by whim it ism
voluntarily signed and sworned to or affirmed.

Order 19 of the CPC RULE 1

Power to order any point to be proved by affidavit.—Any Court may at any time for sufficient
reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of
any witness may be read at the hearing, on such conditions as the Court thinks reasonable:

Provided that where it appears to the Court that either party bona fide desires the production of a
witness for cross-examination, and that such witness can be produced, an order shall not be made
authorising the evidence of such witness to be given by affidavit.

RULE 2

Power to order attendance of deponent for cross-examination.—(1) Upon any application

evidence may be given by affidavit, but the Court may, at the instance of either party, order the
attendance for cross-examination of the deponent. (2) Such attendance shall be in Court, unless
the deponent is exempted from personal appearance in Court or the Court otherwise directs.

Rule 3
Matters to which affidavits shall be confined.—(1) Affidavits shall be confined to such facts
as the deponent is able of his own knowledge to prove, except on interlocutory applications, on
which statements of his belief may be admitted: provided that the grounds thereof are stated.

2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or
argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise
directs) be paid by the party filing the same.

General things

1. Facts must be stated

2. It should begin with the heading and title no of the suit, name and age of the person
3. The person making the affidavit would describe each and every fact in detail
4. Where the fact is based on any source and document , then that should be fully described
5. Affidavit should be confined to matters within the personal knowledge of the deponent
6. There should be declaration on oath about the accuracy of the statement and nothing has
been suppressed or concealed.
7. At the end, write, “I swear that this my declaration is true and that it contains nothing false
and that no part of it is false.”

In Between (Vidhi’s Notes)

How to draft a complaint and the answer to the complaint

Complaint is an allegation made by a person that a particular wrong has been done and it is
addressed to a magistrate.

Rules to keep in mind while drafting a complaint

1) Where the state fails to initiate a cognisable case, file a complaint to the judicial magistrate
first class or second class or whatever the case may be. Cognisable offence is where arrest
can be done without warrant.

2) An individual who is aggrieved by the commission of the non-cognisable offence has to

initiate a proceeding by filing of a complaint in the court of judicial magistrate first class
or second class or whatever the case may be triable.

3) After investigation of the report by the police which discloses the commission of a non-
cognisable offence, the report shall be considered to be a complaint.

What needs to be there in the complaint:

 I) The complaint must be addressed to the magistrate.

II) Must state all facts relating to the offence.

III) Prayer

Three parts of the complaint

a) Entitling – it has four parts in it-

I) In the court of judicial magistrate first class/second class/whatever the case may
be

II) Criminal suit no. ZYX/2025

III) Name of the parties with a description

IV) Section under which the complaint is being filed

b) Body of the complaint – the complainant begs to submit as under/the complainant

abovementioned begs to state as under/the complainant respectfully states as under

I) Introductory facts

II) Material facts – the facts which constitute the offence, offence which is alleged.

c) Prayer – action may be taken against the accused person/the accused person may be
summoned and tried according to law/Hon’ble court may be pleased to initiate appropriate
proceedings against the accused under the BNSS.

d) Place and date and signature of the complainant.

e) Enclosure – witness list, if any, and documents to support, if any.

f) No requirement of verification for complaint.

Sample Draft of the Complaint

In the Court of ____________

Criminal Case No. XYZ/2025

X, son of Y, resident of ABC – complainant

v.
 A, son of B, resident of PQR – accused

Complaint for the offence committed under S. ____ of BNS/any other statute

The complainant most respectfully submits that:

a) Introductory facts

b) Material facts – date when the cause of action arose along with other necessary facts
that show offence was committed.

c) The complainant therefore submits that the accused has committed the offence of
_____ under S. ___ of ___ (name of the statute)

d) Jurisdiction – the court has the jurisdiction.

e) Limitation – the suit is well within the limitation period.

f) List of documents being relied upon by the complainant.

g) Prayer – either the court may be asked to initiate a proceeding or issue a bailable/non-
bailable warrant offence or convict the accused for the offence committed or
attachment of the property and imposition of the fine or the cost and any other relief
which the court deems fit. – you can ask for all or any of these things in your prayer.

h) Place and date where the complaint is being drafted.

i) Signature – of the party only.

In the written statement to the complaint – the points mentioned in the complaint are answered.
He can either confess or deny and for this, he can rely on different defences.

What do you mean by bona fide eviction – if I am the landlord and I require the property now.

PETITION

Petition is a request in writing and in legal language describing an application to a court in writing
n contradiction to a motion which may be made by a word of mouth. It is an application made in
a summary way to the court based upon the written statement of the facts leading upto to the relief
sought and differing in that respect from a motion. A petition is a formal application in writing
made to court for judicial action for something that lies in its jurisdiction

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Review is done by the same court and the revision is done by the high court.
Order 47- REVIEW

Section 115 of the cpc- Revision

In review, new fact is found bit in the revision, it is only about the jurisdiction. Review can be
done of the order which are either appealable or not appealable also but in revision, the order
passed does not have an appeal. The revision is done by the high court but the review has to be
done by the same court.

Format of the review and revision

1. Heading and introductory statement – the name and the place of the court
2. Revision no and year and the section under which it has been filed
3. The name of the parties
 4. Revision petition under section 115 of the cpc from the judgement or order or decree,
dated ----passed by the (name of the subordinate court)
5. Ground for the revision – three grounds mentioned under section 115
6. It is most respectfully prayed before this hon’ble court to admit this revision application
and set aside the order of the subordinate court and the subordinate court may be ordered
that the suit be decided properly after taking proper evidence

In review, you have to mention that no appeal has been preferred either by the plaintiff or the
defendant against the said order.

Prayer for review - It is most respectfully prayed before this hon’ble court that this court may be
pleased to allow that the review application set aside the judgement or the decree dated--- passed
by this court.

Appeal is a right but the review is the discretion of the court.

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Appeal

It is the proceeding by which the defeated party in a law suit applies to a higher court to have the
judgement reversed because of the errors of law pr failure of considering some issue.

What is an appeal? How is it different from review and revision? A) Appeal is done by a
higher court, review by the same court and revision by the High Court. B) Review is done for
discovery of material facts; revision is done for jurisdictional purposes and appeal is done for the
dissatisfaction of the order passed by the lower court. C) Review and revision are not rights but
appeal is a right.

Observations
(i) When an ex parte decree is passed the defendant has two clear options. One to file an appeal
and another to file an application under O. 9, R. 13 to set aside the Order. Once application under
O. 9, R. 13 is dismissed, he cannot by filing first appeal dispute the correctness of Order posting
suit for ex parte hearing or show cause for his non-appearance-Bhanu Kumar Jain v. Archana
Kumar
(ii) The subsequent events in first and second appeals cannot be taken indiscriminately into
account. It may be permitted to be taken into account by appellate court by means of amendment
of pleadings, in Order to avoid multiplicity of proceedings but not where such amendment could
cause prejudice to vested right of plaintiff and render him remedied- Shyam Sunder v. Ram
Kumar

(iii) New plea relating to question of fact cannot be allowed to be raised for the first time before
the Ist appellate court- K. Shivalingaiah v. B.V. Chandra Shekara Gowda

4 kinds of appeal

1. Appeal from original decree- section 96 to 99 of the CPC and order XLI of the cpc
2. Appeal from appellate decree- second decree
3. Appeal from orders
4. Appeals to supreme court

Every appeal shall be preferred

Second Appeal

Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or by any other
law for the time being in force, an appeal shall lie to the High Court from every decree passed in
appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case
involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial
question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it
shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing
of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of
the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law,
not formulated by it, if it is satisfied that the case involves such question.]
Here, substantial question of law is involved.

Section 103

Rule 2 order 41

Appeal from orders – SECTION 104 of the cpc has given the list of orders

Appeals to supreme court – article 132 of the constitution of india

Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases

(1)An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High
Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court
certifies under article 134A that the case involves a substantial question of law as to the
interpretation of this Constitution.

(3)Where such a certificate is given, any party in the case may appeal to the Supreme Court on the
ground that any such question as aforesaid has been wrongly decided.

Explanation--For the purposes of this article, the expression "final order" includes an order
deciding an issue which, if decided in favour of the appellant, would be sufficient for the final
disposal of the case.

Memorandum of appeal- rule 2 order 41

1. Heading and title

2. Introductory statement – particular regarding the orders passed by the subordinate court
and the year in which it was passed
3. Valuation of the appeal
4. Material part- the ground for appeal – it will always start with the word “because”
 5. The relief –
6. Verification and signature

Rule 1 of the order 43- also tells about how the appeal should be drafted

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Criminal Appeal

Time period of appeal – 90 days

Three important things while drafting:

1. In which court you are appealing

2. Judgement against which you are appealing
3. Ground for appeal

Structure:

1. Heading and court name

2. Serial no
3. Name of appellant and respondent
4. Under which court the judgment was passed on such date and such year
5. You have been convicted under such sections and punishment given – from the point of
view of the convicted, you are not satisfied with the punishments
6. Ground for appeal – they are very important as you have to convice

Section 413 of the BNSS

No appeal to lie unless otherwise provided.

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this
Sanhita or by any other law for the time being in force:

Provided that the victim shall have a right to prefer an appeal against any order passed by the
Court acquitting the accused or convicting for a lesser offence or imposing inadequate
compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the
order of conviction of such Court.

INHERENT RIGHT TO APPEAL:

1. Against acquittal
2. Against the conviction
 3. Against inadequate punishment

Section 415 of the BNSS

You can challenge on the ground of the legality of the sentence.

Section 423
In the memorandum of appeal, in the prayer, you also have to mention about the bail.

Appeal to the supreme court: article 132, 143 and 136- read from these articles

Missing notes (Writ Petition)

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Jurisdiction of the supreme court

1. Original jurisdiction
a. Article 131 and order 36 AND 38 OF THE supreme court rules, 2013
b. Writ petition – article 132
c. Special leave petition- article 136
d. PIL- order 38 of the supreme court rules 2013 and rule 20(3) of the supreme court
rules says that it is mandatory to submit the affidavit while filing the PIL.
e. Transfer petition -wrt both civil – order 25 of the cpc and criminal transfer
petition- under section 446
f. Article 139A of the constitution- clubbing cases pending in different HC to one
HC or to the supreme court
g. Order 46 supreme court rules 2013- election petition – mandatory 5 judge bench
2. Appellate jurisdiction
a. Article 133 of the constitution and order 19 of the supreme court rules for civil
appeal
b. Article 134 and order 20 of the supreme court rules for criminal appeal

Approval from the HC has to be submitted in both of the cases

 3. Special Jurisdiction
a. Curative petition- article 145 and 142 and order 48 of the supreme court rules-
Rupa Hooda vs Ashok Hooda – it can be filed after the review petition also.

Requirements:

1. Miscarriage of justice

Conditions

1. Grounds raised in review petition must have been mentioned din the curative petition
2. Curative petition must be certified by the senior advocates
3. Curative petition must be circulated by three senior judges of the sc
4. If the judgement in question was passed by specific judges then the curative petition must
be circulated by those specific judges and if majority of the senior judges agree that there
is a requirement for hearing the petition, then it will be listed

b. Review petition -
c. Presidential reference – article 143

Letter of attorney general seeking his/her opinion is required in Presidential reference.

BAIL (Vidhi’s Notes)

S. 2(b) of the new Code defined bail. Bail bond – S. 2(d) and bond – S. 2(e).

Chapter 35 of BNSS sections 478 – 498

Different kinds of bails

1) Regular bail – S. 480 and S. 483 – it can be any court that may grant it depending on the
gravity of the offence. If the person is already in police custody and he tells in his
application that he will be in full cooperation with the investigating agencies and will be a
law-abiding citizen and will not move out of the country without the prior permission of
the authorities, he will be granted a regular bail.

2) Interim bail – not mentioned under BNSS explicitly. It means “a temporary measure
granted before the hearing of final disposition of a regular or anticipatory bail.” The court
looks into different documents like chargesheet and other materials to decide whether to
 grant an interim bail or not. Any court empowered to decide on the main bail application
can decide on the interim bail. Condition – the person will not leave the place.

3) Anticipatory bail – S. 482 of BNSS. On the anticipation that the person might be arrested
– to prevent the detention before arrest, anticipatory bail is granted. The arrest to be made
should be for a non-bailable offence and application should be made to HC or the court
of Session.

“(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may
include such conditions in such directions in the light of the facts of the particular case, as it may
think fit,

including—
(i) a condition that the person shall make himself available for interrogation by a police officer as
and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or
promise to any person acquainted with the facts of the case so as to dissuade him from disclosing
such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 480, as if the bail
were granted under that section.”

4) Medical bail – S. 483 – special power of High Court or the Court of Session.

5) Default bail/statutory bail – S. 187 – especially S. 187(3) – “(3) The Magistrate may
authorise the detention of the accused person, beyond the period of fifteen days, if he is
satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the
detention of the accused person in custody under this sub-section for a total period
exceeding—
(i) ninety days, where the investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term of ten years or more;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of
the said period of ninety days, or sixty days, as the case may be, the accused person shall
be released on bail if he is prepared to and does furnish bail, and every person released on
bail under this sub-section shall be deemed to be so released under the provisions of
Chapter XXXV for the purposes of that Chapter.” The person is required to be in custody
 for the investigation purposes. So, if in the particular time period, investigation is not
completed, the person will be released – default bail.

6) S. 478 – “ In what cases bail to be taken.—(1) When any person other than a person
accused of a nonbailable offence is arrested or detained without warrant by an officer in
charge of a police station, or appears or is brought before a Court, and is prepared at any
time while in the custody of such officer or at any stage of the proceeding before such
Court to give bail, such person shall be released on bail:
Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is
indigent and is unable to furnish surety, instead of taking bail bond from such person,
discharge him on his executing a bond for his appearance as hereinafter provided.
Explanation.—Where a person is unable to give bail bond within a week of the date of his
arrest, it
shall be a sufficient ground for the officer or the Court to presume that he is an indigent
person for the purposes of this proviso:
Provided further that nothing in this section shall be deemed to affect the provisions of
sub-section (3) of section 135 or section 492.
(2) Notwithstanding anything in sub-section (1), where a person has failed to comply with
the conditions of the bond or bail bond as regards the time and place of attendance, the
Court may refuse to release him on bail, when on a subsequent occasion in the same case
he appears before the Court or is brought in custody and any such refusal shall be without
prejudice to the powers of the Court to call upon any person bound by such bond or bail
bond to pay the penalty thereof under section 491.”

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Conveyance

Drafting is an act of the preparation of the legal document. Three things you should know while
drafting legal document:

1. Facts
2. Law
3. Language

Conveyancing is an art of the drafting deeds and documents whereby any right, interest or title
in any immovable property is transferred from one person to another.
 Deed Document
Deed is a document which transfer the right This is a wider term which could be anything
form one person to another

Why you should know the drafting and conveyancing?

1. For obtaining the legal consultancy

2. For carrying the things and documentation of the things
3. Interpretation of the document

27/3
Stamp act and ….(But different in the stamp act)

Stamp Act

Conveyance”, as defined in clause 10 of Section 2 of the Indian Stamp Act, 1899, “includes a
conveyance on sale and every instrument by which property, whether movable or immovable, is
transferred inter vivo and which is not otherwise specifically provided by Schedule I” of the Act.”
Section 5 of the Transfer of Property Act, 1882 (Indian) makes use of the word “conveyance”
in the wider sense as referred to above

Section 2(15) of the companies act –

Essentials:

1. Name, descriptions and address of the parties

2. Directions
3. Expressing the proper intention of the partiers

Fowler’s five rules

1. Prefer the familiar word to the far fetched (familiar words are readily understood). (
2. b) Prefer the concrete word to the abstract (concrete words make meaning more clear and
precise).
3. (c) Prefer the single word to the circumlocution (single word gives direct meaning avoiding
adverb and adjective).
4. (d) Prefer the short word to the long (short word is easily grasped).
5. (e) Prefer the Saxon word to the Roman (use of Roman words may create complications
to convey proper sense to an ordinary person to understand).
 6. (f) Always prefer active voice to the passive voice in the drafting of documents.

1/4
Contract is a wider term and in the case of contract, new right is crated but in the conveyancing,
new right is not created and these rights are already there and it is the transfer of these limited
rights.

Rules related to the interpretation of the document

Firstly, you have to look at the fact and then the law. Whether the laws allow the party to transfer
or not. The language has to be unambiguous.

Section 91 of the Indian evidence act

Section 92 says that oral evidence are not accepted unless in the exceptional situations. If any
instrument is required to be in written by the law, then that agreement or contract cant be proved
unless written.

Deed is proved before the court by the signatures of the witnesses.

Suppose no witness is there and there is ambiguity which cant be removed, then we have to look
at the facts and circumstances. In our country, we don’t have the law to interpret he deeds. We
look at the evidence act and other acts to look at the documents.

Some documents are presumed to be a genuine document like public documents or the decree of
the court.

There are 2 types of agreement:

 1. Formal agreement – any modification in this cant be allowed by any oral agreement. Only
in exceptional cases, court allow the oral evidence of the document. If there is an oral
agreement which is separately executable, then the court may allow this sometimes if this
is not contrary to the original written agreement.
2. Informal agreement – to prove this, the rule is that of the reasonable expectation

For documentary evidence, we need to see -

1) Whether the document is a genuine document or not

2) Who has executed the document
3) If there is no one to prove the veracity of the document – we can call experts
4) The person can also be asked to write in front of the court to prove whether the
document is genuine.

Clear and unambiguous words prevail over any hypothetical or supposed intention. If the words
used are not clear or ambiguous, the intention has to be ascertained. The intention is not to be
determined by any other manner but by giving actual interpretation or normal and primary
meanings of the words used in the deed. In case the terms are not ambiguous, it is legitimate to
take into account the surrounding circumstances. The court must interpret the words in their
popular, natural or ordinary sense subject to certain exceptions.

1) Where the contract affords an interpretation different from the ordinary meanings of
the words or where the conventional meanings are not the same with their legal sense.
2) No clause should be regarded as superfluous. The construction for interpretation
adopted should as far as possible give a meaning to every word in every part of the
document.
3) If certain words used in a particular transaction or business or in a particular locality
which have been used in a particular sense then they must be prima facie construed in
those technical senses.
4) Unless the language of two documents is identical, an interpretation placed by court
on one document is no authority for the proposition that a document differently
drafted though using partially similar language should be similarly interpreted.
However, judicial interpretation of similar documents in the past can be relied on but
as the effects of the words used must inevitably depend on the context and would be
conditioned by the tenure of each document. Such decisions are not very useful unless
words used are identical.
 5) If there is any clause in the deed that is not binding or authorised, in such a
circumstance, if severability is possible, the point has to be discarded and if it is not
possible, the entire document is discarded.

¾ and 4/4
A deed should be:

1. It should be written
2. Signed
3. Sealed
4. Delivered

Each document is original document which is executed in ad many copies as are the no of parties
would constitute the deed pool. Each document is a complete document in itself. The purpose of
executing the deed pool is that each party should have its own copy.

Deed Poll- It is a deed which is executed and signed by a single party. Eg- power of attorney

Indentures

escrow deed- it will be only executed when all the parties sign and if one of the member is
remaining

Format

THIS MORTAAGE DEED IS EXECUTED ON

FIRST DAY OF APRIL TWENTY TWENTY FIVE

AT -place

Description of the parties -

A, son of resident of

AND

B, son of, resident of

Recitals

1. Narrative recital – how I have acquired the property and the history of the same
2. Introductory recital- to whom I am giving the property
Ramchandra vs Girija Nandini 1965- recital carry evidentiary value in any deed and it is an
evidence against the parties to the instrument and those claiming under that instrument and it may
act as a estoppel also.

Recital starts with the word “whereas” and then the sentence starts with the next line

Testator -starts with the phrase, NOW THIS DEED WITNESSES AS FOLLOWS

Consideration – amount which would be getting from the deed.

Receipt clause- this would start with the phrase, NOW THIS DEED WITNESSES THAT IN
PURSUANCE OF THE AFORSEAID AGREEMENT AND IN CONSIDERATION OF RS.
-----PAID BY THE PURCHASER TO THE VENDOR BEFORE THE EXECUTION
THEREOF THE RECEIPT OF WHICH THE VENDOR HEREBY ACKNOWLEDGES

Operative clause – THIS WOULD contain the kind of right you are giving to the party and it is
the nature of the deed. It talks about the transaction involved in the deed.

Description of the property- size, - you can also attach the map of the property here. The entire
exact location of the property.

Parcels Clause – a detailed description of the property where you mention that this land is
surrounded by the xyz things or if there is any easementry right attached with the property

Exceptions and reservations – if you do not want to transfer any particular right in the property
or of any particular portion of the property. This is exception. Reservation is that you are
transferring the right but at the same time, you all want to have that right.

Premises and Habendum – habendum starts with the phrase, “to have and to hold” or “to the
use of the purchaser”.

Covenants and undertaking – condition which is mutually agreed by the parties , like lessee is
allowed to cut all the trees but not in the last row

Testimonium clause – indicated by the signatures of the parties

Signatures and attestation – this is necessary and must be done by 2 witnesses who have seen
the executant signing or received the information that they have signed the document. Right side,
the parties sign and left sign, the witnesses sign.

Endorsement and supplemental deed

Annexures and schedules

When the transfer is immediately done, then only it becomes a conveyancing deed or at the time,
the condition is fulfilled if it contains a condition precedent. Thus, only thus deed will be a
conveyancing deed.

Some points to note:

1. If it is a natural person then same as A, son of, resident of

2. If anyone of the person is juristic person, then the name of the company formed under
companies act with the main head office of the company or if some religious institution,
then the mathadhish’s name would come
3. If one of the person is unable to enter into a contract like minor, then the guardian’s name
would be there

7/4
Gift deed

The donor:

1. Should be major
2. Free from all encumbrances
3. Should have absolute ownership in the property

Format:

1. First line has to be in caps with the date in words

THIS GIFT DEED IS EXECUTED ON

FIRST DAY OF APRIL TWENTY TWENTY FIVE

AT -place

2. Description of the parties -

A, son of resident of – hereinafter called as the Donor

AND

B, son of, resident of- hereinafter called as the done

Recital- history of how you have acquired the property and what you are doing with the
property
 After that, if the property has any encumbrance

Description of the property

Consent of the parties

Premises and Habendum – habendum starts with the phrase, “to have and to hold”

Signatures and attestation – this is necessary and must be done by 2 witnesses who have seen
the executant signing or received the information that they have signed the document. Right side,
the parties sign and left sign, the witnesses sign.

9/4
Power of attorney – is a document of agency or a formal arrangement by which one person
(principal) gives another person (agent/ attorney) authority to act on his behalf and in his name.

This is governed by Power of attorney act 1882

Section IA- Power-of-Attorney” includes any instrument empowering a specified person to act for
and in the name of the person executing it.]

TYPES OF POA

1. General power of attorney- related to everything which a person can di wrt business, assets
which he transfers through the poa.
2. Specific or special poa- you specifically mention what specific rights the agents have been
given trough the deed. Here, the restrictions have also to be mentioned. Here, some acts
are allowed and some are restricted.

11/4
KNOW ALL MEN BY THESE PRESENCE THAT THIS GENERAL POWER OF
ATTORNEY IS EXECUTED

At Jodhpur

Date in words

By

Name of the person or the company through its managing director- hereinafter referred as
executant
Do hereby appoint, nominate, constitute and authorise, MR X, Position in the company, name of
the company as my true and lawful attorney to manage, control and look after and perform all
legal acts mentioned hereinunder.

Recital- why you are creating the power of attorney

NOW THIS GENERAL POWER OF ATTORNEY WITNESSES AS UNDER:

Now mention all the rights given to him/her

I, the said MD/CEO of the Company hereby agree to ratify and confirm, whatsoever the said
attorney shall lawfully do or cause to be done in or about the premises by virtue of this power of
attorney.

In witnesses whereof, I sign this document on the date and place in the presence of witnesses:

1. Witness 1- named and signed

2. Witness 2