• Drafting, Pleadings & Conveyancing — Comprehensive Exam Primer

Scope: Covers all topics taught in class except Constitutional Pleadings. Sources:
Professor's slides, class notes, classmate notes, and PDF handouts.

1. PART I: DRAFTING — FOUNDATIONS

2. 1. Writing as Thinking (Dickerson)
Writing is not merely the expression of pre-formed thoughts — it is itself a thinking
process. Dickerson's core idea is that drafts "talk back" to the writer, mostly in the
form of questions. You slow down, re-read, and ask: what is this sentence trying to
say? What is missing? This is productive friction — it is how good drafting works.
Key principles:
• Begin writing early, once you understand the problem and have a working
sense of the answer. Do not wait until all research is complete.
• Over-researching before writing can kill original insights, replace thinking with
information overload, and make writers afraid to take analytical positions.
• Good drafting eliminates hypotheses (it closes ambiguity); bad drafting creates
them.
• Do not interrupt the draft for grammar or polish. Capture the gist first. Let gaps
and questions surface — that is the talk-back working.
• The draftsman must uncover implicit concepts — assumptions buried in the
facts that are taken for granted by the client and unclear even to the lawyer at
first.

3. 2. Plain English Movement

Origins: Officially began in the US with President Carter's Executive Order of 1978,
directing federal regulations to be "as simple and clear as possible."
Plain English is not: oversimplification, loss of legal meaning, or informal writing.
The Five Cs (exam-important):
1. Coherence — writing must make sense as a whole.
2. Comprehensiveness — no loss of legal content.
3. Consistency — same word must carry the same meaning throughout.
4. Clarity — the reader must understand their obligations.
5. Care (also "Spelling and Grammar") — layout, grammar, structure, reader
focus.
Practical rules for plain English drafting:
• Avoid word clusters/doublets/triplets: "right, title, and interest" → use
"interest"; "save and except" → use "except"; "null and void" → use "void."
 • Avoid superfluous words: "true copy" — all copies are, by definition, meant
to be accurate. Drop "true." Similarly, "terms and conditions" — a condition is
already a term; use "terms." "Including but not limited to" — "including" is
already non-exhaustive; drop the rest.
• Avoid nominalisation (verb-noun padding): "make an application" →
"apply"; "provide an explanation" → "explain"; "draw a conclusion" →
"conclude."
• Avoid archaic/Latin words: hereinafter, hereto, thereof, aforesaid,
abovementioned, notwithstanding, wheresoever, etc. — all candidates for
deletion.
• Shall/Must/May: "Shall" is ambiguous and overused. Use "must" for
obligation, "may" for discretion, and the present tense where possible. Instead
of "the tenant shall keep the leased premises in repair" → "the tenant agrees to
keep the premises repaired."
• Use active voice: "The vendor cancelled the sale" is clearer than "a right of
termination was effected by the vendor."
• Use short sentences and the present tense.
• Use gender-neutral language.
• Reflection: The best final step before filing is reflection — re-reading to catch
grammar, spelling, and punctuation errors.

4. PART II: PLEADINGS — GENERAL PRINCIPLES (Order VI, CPC)

5. What are Pleadings?
Pleadings are formal written statements by the parties — the plaint (plaintiff) and the
written statement (defendant) — setting out facts and legal positions. The ultimate
goal is finality: draft in a manner that leaves nothing out so there is no further
litigation.
Key rules under Order VI:
• State material facts only — not evidence. Evidence is introduced at trial.
• Be specific about fraud, misrepresentation, breach of trust, or willful default —
these must be specifically pleaded with full particulars (date, time, parties,
conduct).
• Signing and Verification: Every pleading must be verified. The
plaintiff/defendant verifies what is true to their own knowledge and what they
have been informed and believe to be true. In commercial disputes, an affidavit
verifying the pleadings is also required.
Civil vs. Criminal pleadings — key differences:

Feature Civil Criminal

Feature Civil Criminal

Statute CPC BNSS

Cause Title Party A v Party B State v Accused

Evidence at Required (chargesheet must carry material

Not required
filing facts + evidence)

Verification By party (para-wise) By investigating authority

Dismissal Order 7 Rule 11 — no

S.528 BNSS — FIR quashing
standard cause of action

6. PART III: CIVIL PLEADINGS I — PLAINT (Order VII, CPC)

7. Frame of Suit — Order 2
• Order 2 Rule 1: The ultimate objective is finality — every subject in dispute,
every relief, every cause of action must be included in the same suit.
• Jural relationship: The relationship between the parties (lessor-lessee, buyer-
seller) defines the frame of the suit.
• Order 2 Rule 2: Do not split your cause of action (COA). All grounds arising
from the same COA in the same jural relationship must be pleaded together.
Splitting causes hardship (multiple suits) and is barred. Omission of a relief
does not void your right — but it bars your ability to obtain that relief from the
court (Section 11 bar). Your right survives; your remedy does not.
Exceptions (when splitting/amending is permitted):
1. Plaintiff was unaware of the additional claim at the time of institution — can
apply to amend.
2. Both parties agreed to split the COA.
3. A relief initially barred by limitation later becomes available — can seek
court's permission to amend.
8. Parties to a Suit
• Necessary party: Without them, the suit cannot proceed to final adjudication;
their absence may lead to dismissal.
• Proper party: Without them, the suit can continue, but adjudication may be
incomplete. Courts liberally allow impleadment of proper parties.
9. Condonation of Delay
When a suit or application is filed beyond limitation, the plaintiff must file an
Application for Condonation of Delay. Key principles:
 • Bonafide explanation required — the explanation for the delay must be honest
and reasonable. (Note: courts will scrutinize whether blame is being shifted to
the advocate — Rajnesh Kumar v. Ved Prakash, 2024.)
• Disclosure of material facts is required.
• No repetition of grounds already dismissed.
• Balance of prejudice: Court must weigh prejudice caused to both sides —
Thirunagaligam v. Lingeswaran, 2025.
• Statutory limits: Some statutes explicitly bar condonation beyond a period.
Courts have still allowed it in exceptional circumstances — Tata Stella v. Taj
Kumar.
• Decisive factor is the reason for delay — Balwant Singh v. Jagdish Singh &
Ors., 2010.
• Despite strict language of Order 8 Rule 1, courts have held this is directory, not
mandatory (for non-commercial suits).

10. PART IV: CIVIL PLEADINGS II — WRITTEN STATEMENT (Order

VIII, CPC)
11. What is a Written Statement?
The written statement (WS) is the formal defence filed by the defendant to the
allegations in the plaint. Filed under Order 8 CPC. Heading: "Statement on behalf of
the Defendant under Order 8 CPC."

12. A. Timeline for Filing (Rule 1)

• Normal period: 30 days from service of summons.
• Extension: up to 90 days with reasons recorded (court's discretion).
• If filed on the 32nd day: Still need a condonation of delay application, but the
threshold for acceptance is much lower because the statute itself permits
extension.
• SC has interpreted this 90-day limit as directory in non-commercial suits — if
delay exceeds 90 days (or even 120) and there are valid reasons, court may
allow it. Procedural rules are handmaidens of justice.
For Commercial Disputes (Commercial Courts Act):
• Maximum extension: 120 days from service of summons.
• This 120-day limit is mandatory (not directory) — commercial courts are
designed for timely disposal.
• Beyond 120 days: Forfeiture of right to file WS. But the defendant retains the
right to oral defence and cross-examination of plaintiff's witnesses.
• Condonation up to 120 days is permitted but costs are imposed.
 • Extension is the exception, not the norm.

13. B. Pleading Requirements (Rule 3)

• No blanket denials. If you deny everything globally, the court will deem the
allegations admitted against you.
• Para-wise reply is mandatory — admit or deny every single paragraph of the
plaint.
• When admitting, use language such as: "The contents of Para No. 2 are a
matter of record and merit no response." Or admit to a specific extent:
"Admitted to the extent that the amount of Rs. X is to be used for the beneficial
purpose of the leased premises..."
• When denying, you must give a reason. State your own version of the facts:
"The contents of Para No. 1 are denied as wrong and incorrect. It is submitted
that..."
• No evasive denials. If the plaint says "defendant borrowed Rs. 50,000 on
January 1, 2023" and you say "I deny that I received Rs. 50,000 on January 1,
2025" — that is evasive, because you may have received the money on a
different date, by a different method, or in a different amount. Instead say:
"Admitted that I received an amount from the plaintiff, but on [date], not on the
date stated by the plaintiff."

14. C. Consequence of Non-Filing (Rule 10)

• The defendant waives the right to file a written defence.
• The court may pronounce judgement under Order 8 Rule 10 — move ex parte.
• Important: Even in an ex parte proceeding, the plaintiff must still prove their
allegations. The court does not simply accept the plaint.
• If you are seeking ex parte proceedings: highlight the urgency — tell the court
why ex parte is warranted.

15. D. Counter-Claims — Order 8 Rule 6A

A counter-claim is a cross-suit by the defendant against the plaintiff. It is not the same
as a set-off. A set-off reduces the amount you owe; a counter-claim is an independent
cause of action asserted by the defendant.
Filing timeline:
• Must ideally be filed with the written statement.
• If not filed with the WS, the court may permit filing before the framing of
issues (discretion).
 • If issues have already been framed, court can still allow it only in rare
circumstances, provided it is important for justice and will not prejudice the
other side.
• Best practice: file with the WS.
Impermissible counter-claims:
• A counter-claim cannot be solely against a co-defendant. It must be directed
against the plaintiff. However, it may incidentally also claim relief against a co-
defendant. — Rajul Manoj Shah v. Kiranbhai Shakrabhai Patel, 2025 INSC
1109.
Computation of limitation for counter-claim:
• Under Section 3(2)(b) of the Limitation Act, 1963: A counter-claim is treated as
a separate suit and is deemed instituted on the date the counter-claim is
actually filed before the court — not from the date of the original suit.
Drafting the counter-claim — two methods:
1. After the prayer of the WS, add a fresh "Counter-Claim" section with a fresh
memo of parties.
2. Create a separate document altogether with a separate verification.
In both cases, a fresh memo of parties is mandatory:
Mr. B … Counter-Claimant (present position before court) / Defendant (position in
original suit) Versus Mr. A … Counter-Defendant / Plaintiff
The counter-claim must also contain: facts, valuation, court fee, jurisdiction, and
prayer. No proforma checklist is required.

16. E. Pleadings in Commercial Disputes

In addition to the above, under the Commercial Courts Act:
• Verification/affidavit is required for every pleading.
• Denial requirements are the same as Order 8 — para-wise with explanation.
• Order XI: Defendant must disclose all documents relied upon and provide
copies to the other side.
• Order XI declaration: When electronic records form part of disclosed
documents, a declaration must specify this.

17. F. Court Fees for Written Statement

• A WS by itself does not attract court fees.
• But if the defendant seeks monetary relief (including in a counter-claim),
court fees are calculated based on the valuation of that monetary relief under
the Court Fees Valuation Act.
 • For a counter-claim, value the counter-claim and calculate court fees
accordingly.
• If you are only asking for the plaintiff's suit to be thrown out and costs to be
awarded: no court fee.

18. G. Valuation of Suit / Written Statement

• You must tell the court how you arrived at the valuation — show your
calculation.
• Valuation is contingent on the relief sought, not on the value of the property
itself.
• For unliquidated damages (e.g., mesne profits): estimate at a slightly higher-
than-market-value figure; explain the basis in brackets. Include language like:
"These are estimations to the best of the defendant's knowledge; ad valorem
court fees are calculated on that estimation; defendant reserves the right to file
for additional court fees..." (This preserves jurisdiction.)
• Mesne profits: Rent from someone who is illegally occupying land is
classified as mesne profits (unliquidated). Under Order 20 Rule 12, the court
can pass a preliminary decree and then inquire into mesne profits — multiply
estimated area by market rent to arrive at a figure.
• Every relief claimed (declaratory, injunctive, monetary) must be part of the suit
valuation, and court fees are calculated accordingly.

19. H. Admission/Denial Affidavit — Documents

Separately from the WS verification, the defendant must file an Admission/Denial
Affidavit of the Plaintiff's Documents — a table format:

[Link]. Particulars of Document Page No. Admitted / Denied

• "Denied for want of knowledge" — when your client genuinely cannot verify
the document (e.g., board resolution of the opposing company).
• When denying, always explain why.
• When admitting partially: "Admitted to the extent that Rs. X is to be used for
the beneficial purpose of the leased premises and not as part of the security
deposit."
Document Index (Order XI format): Only list documents the defendant is relying
upon. Columns: [Link]. | Particulars + Original/Photocopy/Printout/Typed Copy |
Details of Parties (who executed/issued) | Mode of Execution/Issuance | Receipt (how
received) | Possession/Line of Custody | Page No.

20. PART V: IMPLEADMENT — Order 1 Rule 10

Impleadment means adding a party to a suit mid-proceeding. It is done through a
separate application, which can be filed by either side or by a third party.
Core elements (threshold is higher for a necessary party):
1. Direct legal interest in the subject matter of the suit.
2. Presence is essential for complete adjudication (applies specifically to
necessary parties).
3. Avoidance of multiplicity of litigation.
Necessary vs. Proper Party:
• Necessary party: Absence may lead to dismissal of the suit.
• Proper party: Suit will not be dismissed but adjudication may be incomplete.
Courts exercise greater discretion and liberally allow impleadment of proper
parties.
Judicial discretion — Order 1 Rule 10(2):
Limitations:
21. Dominus litis: The plaintiff is master of their suit and decides who to litigate
against.
22. No impleadment against the plaintiff's wishes (but court can override if
necessary — plaintiff can be added as a proforma defendant).
23. Reasonable timeliness — delay in seeking impleadment may weigh against
the applicant.
24. Knowledge and bona fides — party seeking impleadment must show they did
not have prior knowledge of the suit (if justifying lateness).
Limitation period for added defendants (Section 21, Limitation Act):
• Begins to run only when they are actually impleaded.
• But: a suit against an added party is time-barred if it was already barred on the
date of their addition.
• Court has discretion to change the date of institution if necessary for justice.
Burden of proof lies on the party seeking impleadment. Natural justice: The party to
be impleaded must be given an opportunity to be heard.
Case: CCI v. Steel Authority of India, 2010 INSC 587.

25. PART VI: SUMMARY SUITS — Order XXXVII & Order XIII-A
26. Order XXXVII — Summary Suits (Recovery Suits)
• Used for recovery of liquidated damages (e.g., cheque bounce cases).
• Based on documents — documents must be prima facie legal (properly
stamped, notarised, not forged or fabricated).
 • Defence is a privilege, not a right in a summary suit.
Procedure:
• Defendant must appear within 10 days of service of summons.
• If defendant fails to appear: allegations deemed admitted (but plaintiff must
still prove them).
• If defendant appears: plaintiff serves summons for judgment. Defendant may
apply for leave to defend, supported by an affidavit identifying triable issues
and showing that plaintiff's claim is not clear-cut.
• If leave granted: suit proceeds as a normal suit.
• If leave not granted: court passes order in plaintiff's favour (not ex parte —
defendant did appear).
27. Order XIII-A — Summary Judgments (Commercial Suits Only)
• Plaintiff can apply after summons are issued and before issues are framed.
• Defendant can also apply.
• The applicant must show: (a) the other side has no real prospect of
success/defence; (b) no oral evidence is needed.
• Application must precisely disclose all material facts, identify the point of law,
attach documentary evidence, and state the relief and grounds.

28. PART VII: APPEALS, REVISION & REVIEW (Civil)

29. A. Types of Civil Appeals
First Appeal — Section 96 CPC:
• Lies from any decree (or appealable order) of a subordinate court.
• Covers both facts and law — the first appellate court can re-examine
evidence, reconsider findings, and take additional evidence.
• It is a right of the litigant unless expressly barred by law or waived by mutual
agreement.
• Limitation: 90 days (HC); 30 days (any other court) — Article 116, Limitation
Act.
Duty of first appellate court (Order 41 Rule 31):
1. Frame points for determination.
2. Record reasons.
3. Analyse evidence independently.
4. Provide independent rationale if overturning the trial court.
5. Provide the disposition of the case — the final outcome (e.g., "This appeal is
dismissed without costs"). Without this, the judgment is erroneous.
Second Appeal — Section 100 CPC:
• Filed before the High Court.
• Not a matter of right — discretion of the HC.
• Restricted to a substantial question of law only — HC cannot re-examine
evidence or facts.
• HC must frame the question of law; the second appeal will be heard on that
question.
• HC must reason any rejection.
Appeals to Supreme Court — Section 109 CPC:
• HC must issue a certificate that there is a substantial question of law of general
public importance.
• Without certificate: file an SLP under Article 136 (see below).
Appealable Orders — Section 104 and Order 43 CPC: Orders under S.35A, S.91-
92, S.95; fining parties; orders under rules explicitly permitting appeals. Order 43
Rule 1 lists interlocutory orders including returning of plaint, attachment before
judgment, injunctions, receiverships, etc.

30. B. Correction/Recall Applications

Section 152 CPC — Correction Application:
• For clerical or arithmetical errors in a judgment or order.
• Must be a typographical or mathematical error only — not a substantive change
to the relief.
• Even if the other party opposes, the oral dictated order at the time of final
hearing is on record, so there is nothing to challenge.
• Process: "Mention" — go up to the judge in the first 15 minutes of the bench
sitting.
Recall Application:
• Courts generally cannot recall their own orders.
• Only the Supreme Court can recall, and only on three grounds:
1. Court lacked jurisdiction.
2. Order passed in violation of natural justice (other side not heard).
3. Order is apparently fraudulent or passed under collusion.

31. C. Revision Petition — Section 115 CPC

• A supervisory remedy — not a right. You can file it, but you have no right to
be heard.
 • When can you file:
1. Subordinate court exercised jurisdiction not vested in it.
2. Subordinate court failed to exercise jurisdiction vested in it.
3. Subordinate court acted illegally or with material irregularity (failed to
consider material evidence; failed to follow binding precedent).
Powers of a revisional court:
• Correct jurisdictional errors.
• Correct gross procedural errors.
• Correct non-compliance with legal provisions.
• Can be invoked on the basis of evidence the subordinate court ignored.
• Exercise judicial discretion.
Limitations:
• Cannot pass interlocutory orders.
• No mini-trial — cannot re-examine evidence, call witnesses.
• No appellate power — discretion only.
• Filing a revision petition does not automatically stay the execution of the
decree or proceedings. A stay must be separately applied for and expressly
granted.
Right to be heard: Extended only when the rights of the parties involved are
prejudiced. Routine revision to confirm an order — no hearing required.
Limitation: 90 days from the date of the decree/order — Article 131, Limitation Act.

32. D. Review Petition — Order 47 & Article 137

• Also discretionary — not a right.
• Filed before the same court that passed the decree or order.
• Limitation: 30 days from date of decree/order — Article 124, Limitation Act.
Grounds for Review (Order 47 Rule 1):
1. Discovery of new and important matter or evidence that was not within the
applicant's knowledge or could not be produced despite due diligence.
2. Mistake or error apparent on the face of the record — the mistake must be
so apparent that no further investigation is needed.
3. Any other sufficient reason — to be interpreted narrowly (SC: 1997 INSC
691).
Procedural safeguards:
• Finality and limited scope — review is not an appeal in disguise.
 • Change of law exception — you cannot file a review merely because the law
has changed.
• Prohibition on successive reviews — you cannot review a review order.
• The hearing on a review is a re-hearing process (notice to opposite party
required).

33. E. Comparative Table: Review v. Revision

Review (Order XLVII R.1

Aspect Revision (Section 115 CPC)
CPC)

New evidence, error apparent, Jurisdictional excess/defect,

Grounds
sufficient reason illegal/material irregularity

Appealable or non-appealable
Availability Only where no appeal lies
decrees

Court Same court that passed decree Superior court (HC/District)

Narrow; no re-appreciation of Jurisdictional errors only; no merits re-

Scope
evidence hearing

Hearing Notice + hearing required Discretionary; on record review

No auto-stay; can revise appellate

Finality No review of a review order
orders in some cases

Purpose Correct patent errors quickly Supervisory jurisdiction check

34. PART VIII: CRIMINAL PLEADINGS I — FIR QUASHING (S.528

BNSS)
[Formerly S.482 CrPC. The principles are identical.]
35. What is Quashing?
Quashing is the exercise of the High Court's inherent power to prevent abuse of
process and secure the ends of justice. It is the exception, not the rule. The threshold
is narrow and high.
Bhajan Lal Categories (State of Haryana v. Bhajan Lal, AIR 1992 SC 604) — Seven
grounds:
1. Allegations on the face of the FIR/complaint do not constitute any offence.
2. The allegations constitute a non-cognisable offence and investigation was
initiated without a magistrate's order.
 3. Allegations and evidence on record do not disclose the commission of any
offence.
4. A legal bar exists to proceedings (e.g., S.514, S.128 BNSS).
5. Absurd and inherently improbable allegations which no prudent person would
act upon.
6. Specific statutory redress is available under an existing law.
7. Mala fide prosecution and abuse of process.
In your petition: Identify which categories apply to your facts and explain how each
is satisfied. Do not argue all 7 indiscriminately — a petition that claims all 7 is often
rejected as frivolous.

36. Principles Governing Exercise of Quashing Power (2021 INSC 643):

1. Power to be exercised sparingly and with circumspection.
2. No enquiry into the reliability or genuineness of allegations — the court looks
only at the FIR, chargesheet, and annexures thereto, not external evidence.
3. Exception rather than ordinary rule.
4. No mini-trial at the threshold stage — the HC cannot evaluate evidentiary
merits, assess credibility of documents, or reassess calculations.
5. Police must be permitted to complete investigation.
6. Courts and police perform complementary functions — judicial interference
with police investigation is justified only in cases of grave miscarriage of
justice.
7. No vague assertions — back up every claim with facts. No blanket allegations.

37. When Has Quashing Been Granted:

• Non-disclosure of a cognisable offence — 2025 INSC 4.
• Procedural violations — 2025 INSC 4.
• Accused not named in FIR — 2023 INSC 687.
• Abuse of process in civil disputes (criminal case filed to harass a party in a
civil matter) — 2025 INSC 202.
38. Factors Against Quashing:
• Absconding accused and criminal antecedents — 2017 INSC 1003.
• Mala fides of informant is a secondary issue — 2009 INSC 498.
• Chargesheet has been filed after investigation — 2021 INSC 872.
• Delay in registration of FIR is not a ground for quashing.
 39. Quashing vs. Discharge

Feature Quashing (S.528 BNSS) Discharge (S.363 BNSS)

Court HC only Magistrate or Sessions Court

Before cognisance (generally); Post-cognisance, pre-charge

Stage
exceptions exist framing

Basis Bhajan Lal — abuse of process Prima facie no case made out

Documents FIR + chargesheet + external docs Material on record before court

Relief Immediate Post-cognisance only

After cognisance is taken, quashing is still possible but attracts stricter scrutiny —
Kaptan Singh v. State of UP, 2021.

40. How to Draft a Quashing Petition — Structure (S.528 BNSS)

Court: High Court of [State] [Link] No.: [leave blank] Cause Title: Petitioner
(the accused) vs. State + Complainant (if any)
Documents checklist:
• FIR + translation (if regional language)
• Chargesheet/forensic/science lab/medical examination reports
• S.35 BNSS notices
• Bail orders/interim orders
• Marriage proof, child birth certificates (matrimonial cases)
• Settlement MOU and wife's consent affidavit with ID proof (settlement cases)
• Proof negating cruelty: call records, chats, emails, travel records
• List of connected cases (DV, S.125, S.406, etc.) and their status
Structure of petition: Index → Court Fees (brief para, not a separate slip initially) →
Notice of Motion → Urgent Application (addressed to Registrar) → List of Dates and
Events → Memo of Parties → Main Petition under S.528/482 along with affidavit →
Annexures

41. PART IX: CRIMINAL PLEADINGS II — BAIL

42. A. Regular Bail — Section 480 BNSS
(For persons accused of non-bailable offences already in custody)
Mandatory contents and disclosures:
 1. Details of prior applications — if this is the first bail application, state: "No
other bail application has been filed and this is the first bail application." If
previous applications were filed, disclose the court, application number, date,
and outcome. This prevents forum shopping and allows the court to come up to
speed quickly.
2. Affidavit by the accused (or by a power of attorney holder, e.g., the accused's
mother — the POA holder verifies and signs the affidavit).
3. Bail performa (placed right after index and before main pleading — for court
registry).
Factors courts must consider:
1. Nature and gravity of the offence.
2. Severity of punishment prescribed for the offence.
3. Criminal history/antecedents.
4. Flight risk.
5. Risk of witness tampering (heightened if accused is influential).
6. Prima facie case: Do not provide elaborate reasons for innocence — no mini-
trial. Simply satisfy the court that continued detention violates Article 21.
Conditions that can be imposed (General):
• Report to the police station weekly/monthly.
• Submit passport.
• Bail bond.
• Not leave the state or country without permission.
Bail bond:
• A standard form is filled out. Bond amount is suggested by the prosecution
(based on the crime, earnings of the accused, etc.).
• Surety and accused must both be present in court.
• Bond money is returned to the surety once conditions are fulfilled or the case is
decided.
Judicial standards:
• Reasoned orders — 2022 INSC 610; 2021 INSC 265.
• Judicious exercise of discretion.
• DHC Circular (Zeba Khan judgment, March 18, 2026): Affidavit in Delhi
bail applications must now include specific particulars (see proforma).

43. B. How to Format a Bail Application

Structure: Index → Proforma (Bail Performa) → Memo of Parties (applicant/accused
vs. State) → Main Pleading → Affidavit → Form No. 45 (Bail Bond to be Executed
by Surety) → Vakalatnama
No court fees in criminal bail applications or appeals.
Drafting guidelines:
• State: Court name, cause title, FIR number, BNS/BNSS sections, how long the
client has been in custody.
• Organise grounds logically: Strongest ground first, then procedural grounds,
then personal circumstances, ending with undertakings.
• Grounds should be separate, numbered, and carry a legal anchor.
• For each ground: state the legal technicality and support it with the facts.
• Specific prayer: "Grant bail to the applicant/accused in FIR No. ___ under
Section ___, Police Station ___, upon furnishing bail bonds and sureties to the
satisfaction of the concerned Magistrate." Do not use vague language like "do
justice" or "grant appropriate relief."
• Can add a general prayer clause after the specific one.
• Undertakings: can be a separate heading at the end.
• Every bail application must cite the BNSS section under which it is filed.
Citing case laws in bail (DHC-specific rule): Not mandatory in DHC bail
applications. If you do cite, pick 3–4 cases on point, only HC or SC, and do not copy-
paste — apply the principle to your facts.
Documents required:
• FIR (if unavailable, annex the application letter sent to the Police Station
requesting a copy).
• ID and residence proof (Aadhaar, PAN).
• Vakalatnama.
• Court fee receipt (check HC guidelines for the applicable fee).
• Affidavit in support of bail — on stamp paper, sworn before a notary.
• Supporting documents depending on grounds:
o Medical bail: medical certificates.
o Flight risk rebuttal: employment/business proof.
o Character: certificates from employer, local councillor, MLA.
Case details to include in bail application (Zeba Khan proforma):
• FIR number, PS, district, state.
• Sections and maximum punishment.
• Status of custody.
 • Status of trial.
• Previous bail applications and their outcome.
• Details of any coercive processes (warrants, notices, etc.).

44. C. Interim Bail

• A temporary, short-term release granted while the regular or anticipatory bail
application is pending.
• Duration: typically 2–4 weeks.
• Granted for medical emergencies, personal crises, or pending final arguments.
• Functions as a stop-gap measure.

45. D. Anticipatory Bail — Section 482 BNSS

What it is: A direction by a court to release a person on bail even before arrest. It is
not merely procedural — it is a safeguard of Article 21. Social stigma attaches to
arrest; anticipatory bail was designed to counter wrongful implication.
Two types:
1. Normal anticipatory bail.
2. Transit anticipatory bail (protection while travelling between states).
Threshold: Significantly higher than regular bail. You are not only seeking bail —
you are also, in effect, asserting that no crime has been committed. Be comprehensive:
every single fact your client tells you must be dealt with in the application. Omitting a
fact (including past criminal history) amounts to suppression.
Conditions to satisfy:
• Demonstrate that you have reason to believe you will be arrested for a non-
bailable offence.
• "Reason to believe" examples: FIR filed, criminal complaint registered, police
summoned the applicant, search and seizure carried out, warrant issued, other
side has threatened to file a complaint.
• Application must be based on concrete facts — no vague or general
allegations.
Factors for consideration:
1. Nature and gravity of the accusation.
2. Antecedents of the applicant — must be disclosed to the court. Even if
unfavourable, pad the disclosure with context.
3. Possibility of fleeing from justice.
4. Mala fide accusation (plead facts strongly and convincingly).
 5. Likelihood of tampering with evidence or influencing witnesses.
Conditions courts can impose:
• Standard mandatory: do not leave country/state without informing court;
cooperate with investigation; appear in court as directed.
• Discretionary: surrender passport; specific days for reporting; do not contact
complainant/witnesses.
• Bond: generally Rs. 25,000 to Rs. 5 lakhs; higher in economic offences.
Duration: Generally until end of trial — Sushila Aggarwal v. State. Prosecution can
move to cancel before that.
Cancellation of anticipatory bail (Raghubir Singh v. State of Bihar):
• Misuse of liberty by indulging in criminal activity.
• Interference with course of investigation.
• Tampering with evidence or witnesses.
• Threatening witnesses.
• Likelihood of fleeing.
• Attempts to make himself scarce or unavailable to the investigating agency.
(Grounds are illustrative, not exhaustive.)
If application rejected:
• Sessions Court rejection → appeal to HC.
• HC rejection → SLP to SC (must show HC order was arbitrary, perverse, and
violated established legal principles for anticipatory bail).
When can you file a fresh anticipatory bail application? (Gurbaksh Singh Sibbia v.
State of Punjab, AIR 1980 SC 1632):
1. Change in circumstances:
o Investigation has now been completed.
o Key witness has turned hostile.
o New evidence of false implication has emerged.
o Subsequent SC judgment clarifying law in applicant's favour.
2. New ground not raised in the earlier application. Courts discourage successive
ABs on identical grounds — if you do so, the court will direct you to appeal
instead.
Situations where anticipatory bail is NOT available:
• Heinous crimes (sexual offences against children): absolute bar under S.482(4)
BNSS.
• SC/ST Act: AB generally not available, but one exception — if the FIR does
not, prima facie, make out the offences alleged under the Act.
 • PMLA: Must satisfy the twin test (court is satisfied the person is not guilty +
court is satisfied the person will not commit any offence while on bail) + the
threshold for anticipatory bail, both simultaneously — Directorate of
Enforcement v. M. Gopal Reddy.
• NDPS Act: Same twin test + anticipatory bail threshold.
• UAPA/NIA Act: Not explicitly barred, but extremely strict scrutiny is applied.

46. E. Transit Anticipatory Bail

When needed: When you are located in State A and face imminent arrest by police
from State B, where criminal proceedings are initiated.
Filed before: Either the Sessions Court or the HC — Priya Indoria v. State of
Karnataka.
Duration: Short — 2 to 4 weeks maximum. Protects only until you travel from one
state to the other; then you must apply for normal AB in the jurisdictional court.
Both sessions court and HC can grant transit AB even if FIR is registered outside
their territorial jurisdiction.
Application must state:
1. Apprehension of arrest by police of another state.
2. Need for temporary protection to approach jurisdictional court.
3. Bona fide residence and no intention to abscond.
Court order/prayer: Time-bound protection from arrest; direction to approach
correct court; continuity of protection.

47. PART X: SPECIAL LEAVE PETITION (SLP) — Article 136, Constitution

of India
48. What is an SLP?
A discretionary appeal to the Supreme Court under Article 136 of the Constitution.
Unlike a certificate appeal (Section 109 CPC / Section 109 BNSS), there is no right to
be heard — the court must first grant special leave. Only once leave is granted does
the SLP get converted into a regular appeal.
Who can file before the SC?
• Advocate on Record (AOR) or party-in-person.
• Designated senior advocates cannot file a vakalatnama or act in pleadings
before the SC — they focus solely on oral submissions. Therefore, the
vakalatnama is of the AOR only.
Monday and Friday: Miscellaneous dates (fresh matters). The cause list is
maintained by the court registry.
Types of cause lists:
• Advanced cause list: tentative (alerts AOR that matter may be listed, ~80%
accurate).
• Main cause list: the actual list for the day.
• Supplementary cause list: heard after the main list, sometimes before it.
• Registrar's Court list: for first-time filings and defect curing.

49. Limitation Period for Filing SLP

• Civil SLP (Order XXI, SC Rules): 90 days from date of impugned order (or
60 days in some cases — check the relevant proviso).
• Criminal SLP (Order XXII, SC Rules): 60 days if death sentence; 90 days
otherwise.
• Same proviso applies: if you applied for a certificate from the HC and it was
rejected, the period of that application is excluded.
• If beyond limitation: file an Application for Condonation of Delay.

50. Structure of an SLP (Form No. 28)

Mandatory elements and order:
1. Letter of Urgency (where applicable)
2. Index of Proceedings (available on SC website — include but do not fill
remarks column)
3. Office Report on Limitation (find standard form online; do not sign as Branch
Officer — leave blank for registry)
4. Listing Proforma (available on SC website — leave Point 4 blank in
assignment; fill Point 7 with AOR details)
5. Cover Page (state "With Prayer for Interim Relief" if applicable; state appellate
jurisdiction; details of impugned order; "In the matter of Petitioner vs. State of
[X] and Another")
6. Synopsis (2 pages ideally, max 4–5 pages; crisp, precise, convincing; highlight
the most essential facts; omit annexure references, sub-arguments,
justifications)
7. List of Dates and Events (draft this first — everything else flows from it)
8. Impugned Order (certified copy; if time does not permit, file an exemption
application; not marked as an annexure — labelled as "Impugned Order")
9. Main SLP Pleading:
 o Memo of Parties (table format showing position before trial court, HC,
and SC; no cause title; write "Hon'ble" before every court; if HC record
has a spelling mistake, replicate it and clarify in Para 1A/1B)
o Questions of Law
o Grounds
o Declarations (under Rule 2(2) and Rule 4 — copy from SC rules)
o Grounds for Interim Relief (if interim prayer included)
10. AOR Certificate (authenticating the SLP)
11. Affidavit (client verifies facts and annexures of SLP)
12. Vakalatnama / Memo of Appearance (form available on SC website)
13. Appendix (for statutes, sections, ordinances — labelled APPENDIX, not
annexure)
14. Annexures (marked and described in the List of Dates)

51. Drafting Key Components

List of Dates and Events:
• Draft this first.
• Include every date: incorporation, original action, issuance of notice/circular,
date of impugned judgment, intervening events, filing date.
• Build a favourable narrative — not administrative language.
• Mark annexures here on first reference: "A copy of the FIR dated ___ is
annexed herewith as Annexure P-1 (Pages 88–89)." Do not just put it in
brackets.
• If list of dates exceeds 20 pages, file a separate application for permission to
file a lengthy LOD.
Synopsis:
• After LOD in terms of drafting sequence, but placed before LOD in the final
document.
• Present the central issue to the court.
• Crisp and to the point — no unnecessary detail.
Memo of Parties:
• Table with 3 columns: position before trial court, position before HC, position
before this court.
• No cause title.
• Write "Hon'ble High Court of ___."
 • Replicate any spelling errors from the HC record; clarify in Para 1A/1B of
main pleading.
Questions of Law:
• Where you tell the court WHY you are filing the SLP.
• Must be: precise (1–2 crisp sentences), substantial (of general importance, or
raising an unsettled controversy), arising from the facts of the case (not
abstract), and not merely factual (not a re-appreciation of evidence).
• Example: "Whether the Hon'ble High Court erred in law by denying
anticipatory bail to the Petitioner solely on the ground of non-recovery of
alleged dowry articles, without appreciating that such recovery is not a legal
condition precedent for the grant of anticipatory bail?"
• Grounds must answer the Questions of Law.
Grounds:
• Cannot be purely factual. Must be evaluative — why something was legally
wrong.
• Do not merely say "the High Court erred" — add the legal anchor.
• Example: "...because the Hon'ble High Court failed to appreciate the law laid
down in Arnesh Kumar v. State of Bihar, which mandates caution in arrest in
S.498A IPC cases, especially when recovery..."
• Every ground must be numbered.
• Position strongest grounds first.
• Only cite SC judgments in an SLP.
Prayer (Standard — Mandatory):
• "(i) Grant special leave to appeal against the impugned order dated ___ passed
by ___ in ___; and"
• "(ii) Pass such further or other order(s) as this Hon'ble Court may deem fit and
proper in the interest of justice."
Prayer for Interim Relief (if applicable):
• "Grant ad-interim protection from arrest to the Petitioner in connection with
FIR No. ___ dated ___ registered at Police Station ___, District Sonepat,
during the pendency of the present Special Leave Petition."
AOR Checklist (Annexure D): Must be part of every SLP. Tick civil or criminal
checklist as applicable.

52. PART XI: CONVEYANCING

53. What is Conveyancing?
Conveyancing is the transfer of property interest through a deed. Under Section 2(10)
of the Indian Stamp Act, 1899: "conveyance includes a conveyance on sale and every
instrument by which property, whether moveable or immovable, is transferred inter
vivos and which is not otherwise specifically provided for by Schedule I."

54. Types of Deeds

• Deed Poll: Written on a single side; executed by only one party — examples:
Will, Power of Attorney, Bond.
• Indentured Deed: Executed by two or more parties — examples: Lease deed,
Rental agreement.

55. Component Parts of a Document

Non-Operative Part:
• Name/description of document.
• Date of the deed.
• Parties to the deed (with full details: name, address, capacity).
• Recitals: ("Whereas the parties are desirous of...") — sets out the background.
o When operative part is clear: recitals have no effect on interpretation.
o When operative part is ambiguous: recitals govern construction of the
deed.
Operative Part:
• Testatum/Premises: "Now this deed witnesses that..." — operative words such
as "grants," "transfers," "conveys," "assigns."
• Habendum: "To have and to hold" — defines the estate given to the transferee.
• Exceptions and Reservations/Reddendum: Carves out rights retained by the
transferor (e.g., mineral rights, right of way).
• Covenants:
o Implied covenants: Attached by law automatically — need not be stated.
o Express covenants: Must be clearly stated in the deed — especially
where excluding or modifying what law otherwise grants.
Formal Part:
• Testimonium: "In witness whereof the parties have set their signatures..."
• Signature and Attestation.
• Description of property (refer Sections 21–22, Registration Act).

56. Who Can Convey

Parties must be competent to contract: sound mind + legal age. A minor can convey
through a legal guardian.

57. Construction / Interpretation of Deeds

• Intention of parties is discovered from the expressions used.
• Clear words prevail; intention fills any gap.
• Words are taken in their literal meaning — but "literal meaning = parties'
habitual meaning." If parties always used "goods" to mean finished textiles, a
deed that says "goods" means finished textiles even if the dictionary says
otherwise.
• Technical legal terms carry their legal meaning.
• Extrinsic evidence is permitted only to explain what words mean — not to alter
them.
• Read the deed as a unified whole.

58. Attestation
Defined in Section 3, TPA. Not mandatory for all deeds, but good practice.
Requirements for valid attestation:
• Witness must sign as a witness.
• Purpose must be to attest to execution.
• A party to the document cannot be an attesting witness.
• Witness need not know the contents of the document.

59. Stamp Duty & Registration

Stamp Duty:
• Section 3 read with Schedule I of the Indian Stamp Act, 1899.
• Varies from state to state. If an instrument executed in State A (where lower
duty applies) is sought to be used in State B (higher duty), the difference must
be paid before use in State B.
• Conveyance: charged under Article 23 of Schedule I.
Registration:
• Section 12, Registration Act: mandatory registration for certain instruments
(e.g., sale deeds, lease deeds for more than one year).
• Section 18: Registration is optional for certain instruments.
• Time to present: 4 months from date of execution (Section 23).
 • Condonation window: Sub-Registrar can condone delay for a further 4
months (Section 25) — with urgent necessity or unavoidable accident; a fine up
to 10× the registration fee may be imposed.
• Beyond 8 months: No power to condone. Document cannot be registered.
• Document operates from the date of execution, not date of registration.
Who may present for registration:
• (a) A person executing or claiming under the document; (b) their representative
or assignee; or (c) their duly authorised agent under a POA (executed per
Section 33, Registration Act).

60. WILL
Definition: A testamentary document — the legal declaration of the testator's
intention regarding how their property shall be distributed after death. Defined in
Section 2(h), Indian Succession Act, 1925.
Codicil: An ancillary document that adds to or modifies a will without completely
altering its character — Section 2(b), Indian Succession Act.
Governing law: Part VI of the Indian Succession Act (does not apply to
Mohammedans).
Two essential elements:
1. Must come into effect only on the death of the testator.
2. Must be revocable at any time during the testator's lifetime.
Two types of Will:
1. Privileged Will: Only for soldiers, airmen, marines engaged in active warfare.
Can be made orally; does not need to be registered.
2. Unprivileged Will: Must be in writing, signed by the testator (invalid if
unsigned), signature must be clear and legible, attested by minimum 2
witnesses — every single page must be signed by the testator and the attesting
witnesses.
Who can make a will?
• Person of sound mind (a person of unsound mind can make a will during a
lucid interval — best attested by a doctor).
• Major (person who has attained majority).
• Person with disabilities, if they understand the contents.
• Married women can make a will.
Property that can be willed:
• All moveable and immoveable property owned by the testator.
 • Hindu coparcener can will away their undivided share — Section 30, Hindu
Succession Act.
• Life interest cannot be willed.
• Future property cannot be willed.
Legatees:
• Anyone can be a legatee, including a juristic person.
• If legatee dies before testator: their share becomes part of the residual estate —
include a residual clause.
• If 2 joint legatees and 1 dies: the survivor gets everything.
• If named legatee does not exist: bequest is invalid and reverts to residual estate.
Clauses that can be included:
• Distribution of assets.
• Maintenance of a person.
• Management of debts after death.
• Appointment of executor (executor must accept; can also be an attesting
witness).
• Creation of a trust.
• Appointment of guardian of a minor child.
Stamp duty: No stamp duty applicable on a will. Registration: Optional, but
strongly recommended.
Essential components of a will:
1. Personal details of testator (full name, age, address, ID proof like
PAN/Aadhaar).
2. Opening declaration (identifies this as the last will and testament; revokes all
previous wills and codicils).
3. Appointment of executor.
4. Details of heirs.
5. Description of assets.
6. Distribution plan (bequests, trusts, etc.).
7. Statement that will is made voluntarily and in a sound state of mind.
8. Signature and witness clause — attested by minimum 2 witnesses on every
page.
Revocation of will: Sections 62, 69, 70, 72, Indian Succession Act.
Probate (Section 213, Indian Succession Act): Required when the will is contested
and when institutional demands require it (banks, housing societies).
 61. GIFT DEED
What it is: A transfer of property during the lifetime of the donor, without
consideration, out of natural love and affection — Section 122, TPA.
Key rules:
• Unconditional — no consideration.
• Can only be made for existing property — not future interest.
• Must be accepted by the donee (oral, by signature, or by conduct such as
getting it registered).
• Once made, generally cannot be revoked — except in cases of fraud, coercion,
undue influence, specific conditions not being fulfilled, or the specific purpose
for which it was made not being fulfilled. It cannot be revoked at the donor's
discretion or will — this is a firm rule.
• Conditional gifts are permitted.
Who can make a gift? Any person competent to contract. Who can be a donee? Any
existing person — not an unborn child.
Under personal law:
• Gift by Muslims: governed by Mohammedan law (not TPA).
• Gifts under Hindu law: Section 123 TPA applies.
Stamp duty: Article 33 of Schedule I of the Indian Stamp Act (varies by state; a
conveyance is charged under Article 23).
Requirements for a gift deed:
• Donor must have clear title.
• Donor must have no monetary interest.
• Both parties must be present (for a minor: a guardian must be present).
• Property must be tangible and existing.
• Property should be registered.
• Identity proof of both donor and donee; NOC in case of agricultural land;
affidavit stating validity; encumbrance certificate.
10 categories of non-giftable property:
1. Future property.
2. Property with defective title.
3. Spes successionis (mere chance of succession).
4. Public office and emoluments.
5. Trust/fiduciary property.
 6. Mere right to sue.
7. Right to future maintenance.
8. Illegal / public policy-violating property.
9. Gifts vitiated by fraud.
10. Impossible or illegal conditions.

62. POWER OF ATTORNEY (POA)

Governing law: The Powers of Attorney Act, 1882; Section 85 of the Indian Evidence
Act (execution, attestation, authentication); Article 48, Indian Stamp Act (stamp duty);
Article 17 (cancellation stamp duty).
What it is: A document wherein one or more parties convey their authority to
someone to act on their behalf.
Two types:
1. Special Power of Attorney (SPA): Restrictive; executed for a limited, specific
purpose (e.g., "register the sale deed of Plot 5, Sector 12"). Automatically
revoked once the purpose is fulfilled. Agent must act strictly within the
mandate.
2. General Power of Attorney (GPA): Broad; covers multiple acts; continues
until revoked or principal dies; requires revocation by the donor; required when
authorising execution of registerable documents (Section 17, Registration Act).
Example: "manage all my property, file tax returns."
Key rules:
• Can be executed by and in favour of multiple persons (POA must clearly define
what powers each person can exercise and to what extent).
• Donee must act within the limitations of the POA — actions are protected only
to that extent.
• Once revoked, the donee has no authority.
• Section 3, POA Act: If the donor dies or becomes bankrupt and the donee,
unaware, continues to act in good faith, the donee is not personally liable. But
if the donee is aware, they are personally liable. Knowledge is the trigger.
• It is a deed poll — has to be in writing, signed by donor; always advisable to
get it registered.
• Drawn up on non-judicial stamp paper.

63. TRUSTS
Governing law: Indian Trusts Act, 1882, Section 3 (definition) and Section 4 (what
trusts cannot do — illegal, fraudulent, immoral, opposed to public policy, or defeating
the provisions of any law).
Parties:
• Author of the trust (creates the trust).
• Trustee (accepts the trust — any person competent to contract; owner of
property can also be trustee; person may disclaim before transfer).
• Beneficiary (every person — including an unborn child in some
circumstances).
• Trust property (subject matter).
• Instrument of trust (deed).
Types:
• Public trust: For the benefit of the public at large (e.g., charitable trust);
cannot be revoked once created.
• Private trust: Generally for family members.
• Wakf: Religious trust made by a person of Islamic faith of
moveable/immoveable property for religious/pious purposes — governed by
the Wakf Act; Section 3(r) of the Wakf Act. The Indian Trusts Act does not
apply.
• Hindu endowment: Can be public or private; Indian Trusts Act does not apply.
When is a trust created (essential elements):
1. Intent to create a trust.
2. Purpose of the trust (stated in the deed).
3. The beneficiary.
4. The trust property.
5. Transfer of trust property to the trustee (except where the trust is declared by a
will or the author is himself the trustee).
Revocation — Section 77 and 78, Indian Trusts Act.
Requirements for a private trust deed:
• Trust deed on stamp paper.
• ID proofs of all parties.
• Signature of 2 witnesses.

64. QUICK-REFERENCE: KEY CASES

Case Key Principle

Balwant Singh v. Jagdish Singh & Ors., Decisive factor in condonation of delay is
2010 the reason for delay
Case Key Principle

Balance of prejudice in condonation

Thirunagaligam v. Lingeswaran, 2025
applications

Preclusion of shifting blame to advocate in

Rajnesh Kumar v. Ved Prakash, 2024
condonation

Rajul Manoj Shah v. Kiranbhai Counter-claim cannot be solely against co-

Shakrabhai Patel, 2025 INSC 1109 defendant

CCI v. Steel Authority of India, 2010 Judicial discretion in impleadment (O.1

INSC 587 R.10)

State of Haryana v. Bhajan Lal, AIR

Seven categories for FIR quashing
1992 SC 604

2021 INSC 643 Principles governing quashing power

Non-disclosure of cognisable offence;

2025 INSC 4
procedural violation — quashing granted

Accused not named in FIR — quashing

2023 INSC 687
granted

Abuse of process in civil dispute —

2025 INSC 202
quashing granted

Stricter scrutiny for quashing post-

Kaptan Singh v. State of UP, 2021
cognisance

DHC practice directions — affidavit

Zeba Khan v. State of UP
requirements in bail

Mandatory disclosure of prior bail

2024 INSC 46
applications

Reasoned orders; judicious exercise of

2022 INSC 610; 2021 INSC 265
discretion in bail

Anticipatory bail generally valid till end of

Sushila Aggarwal v. State
trial

Raghubir Singh v. State of Bihar Grounds for cancellation of anticipatory bail

Case Key Principle

Gurbaksh Singh Sibbia v. State of When fresh AB can be filed; specificity in

Punjab, AIR 1980 SC 1632 AB application

Directorate of Enforcement v. M. Gopal

Twin test for AB under PMLA
Reddy

Priya Indoria v. State of Karnataka Sessions court and HC can grant transit AB

Arnesh Kumar v. State of Bihar Caution in arrest in matrimonial offences

65. QUICK-REFERENCE: KEY LIMITATION PERIODS

Article (Limitation
Remedy Limitation Forum
Act)

First Appeal (HC) 90 days High Court Art. 116(a)

First Appeal (other

30 days Any other court Art. 116(b)
court)

Second Appeal 90 days High Court Art. 116(a)

Court other than

Review Petition 30 days Art. 124
SC

Revision Petition 90 days HC (CPC S.115) Art. 131

Order XXI, SC
SLP (civil) 90 days / 60 days Supreme Court
Rules

SLP (criminal — Order XXII, SC

60 days Supreme Court
death) Rules

SLP (criminal — Order XXII, SC

90 days Supreme Court
others) Rules

WS (non-
30 days (max 90) Trial Court O.8 R.1 CPC
commercial)

Commercial Commercial Courts

WS (commercial) Max 120 days
Court Act
 Article (Limitation
Remedy Limitation Forum
Act)

Document for 4 months (condonable to S.23-25,

Sub-Registrar
registration 8 months) Registration Act

Prepared from: Professor's slides ([Link]), class notes (SEM_8_NOTES),

classmate's DPC notes, and the PDF handout on written statements. All cases and
sections cited are sourced directly from those materials.

• PART XII: EXTRAS — ADDITIONAL PROFESSOR'S NOTES

The following material is drawn from a second set of lecture slides covering theory,
doctrine, and conveyancing instruments in greater depth. Organised by topic for easy
cross-reference with the main primer above.

66. E1. THEORY OF PLEADINGS — READINGS SYNTHESISED

67. Charles E. Clark — "History, Systems, and Functions of Pleading"
Pleadings evolved from rigid English common law formalism (the medieval writ
system — you had to select the exact writ, and form trumped substance) to fact-based
pleading following the Judicature Acts. India's CPC 1908 inherited the English post-
Judicature structure.
Purpose of pleadings:
• Define the scope of the dispute so there are no surprises at trial.
• Give fair notice to the opponent of the case they must meet.
• Narrow the controversy to definite issues, saving time and cost.
• Record the precise questions for adjudication, preventing re-litigation.
• Help the court determine the most appropriate mode of trial.
Tone and temperament: Always use moderate, respectful language in pleadings.
Personal attacks or defamatory language against the opposing party can lead to
litigation against the drafter. Civility is non-negotiable.
Courts can strike out scandalous, irrelevant, or vexatious matter under Order 6 Rule
16 CPC.
Golden rule: Procedural rules facilitate justice — they do not create new rights or
extinguish existing ones. Do not weaponize minor technicalities.
Before drafting, always confirm: (a) the dispute is civil in nature; (b) there is no
express or implied bar; (c) jurisdiction exists under Section 9 CPC (civil courts hear
all civil matters unless excluded — Revenue matters under Tenancy Acts, Labour
disputes under Industrial Disputes Act, MACT, Consumer disputes, etc., are
excluded).

68. Foley & Robbins — "Fiction 101: A Primer for Lawyers"

Legal writing is not merely about stating facts — it is about structuring them to
persuade. Facts often matter more than law because judges already know the law; they
need clarity on how it applies to the facts of your case. Avoid the "data dump" — treat
facts as a persuasive narrative.
Six techniques:
1. Narrative arc: Beginning (background/context) → Middle (conflict/turning
point) → End (fallout/harm suffered). This creates emotional logic, not just
chronology. "After nearly a decade of loyal service, X received two sudden
warnings within a month..."
2. Perspective and point of view: Decide whose eyes the judge sees events
through. Use perspective to build empathy for your client.
3. Characterization — show, don't tell: Avoid adjectives; show behaviour. Not
"He was dedicated" but "He arrived 20 minutes early every day and stayed
past closing to help colleagues."
4. Control pacing: Slow down important scenes; summarize unimportant ones.
"The left turn signal flashed. The bus began to move. Suddenly, a screech —
brakes. A thud. Then silence."
5. Concrete detail: Specific, sensory details make stories credible. Not "She
looked nervous" but "She kept wringing her hands and avoided eye contact."
6. Avoid legal conclusions in facts: Let the judge draw the conclusion. Not "The
employer discriminated" but "After returning from medical leave, she was
removed from the client project she had led for two years and reassigned to
desk duty — without explanation."
For a criminal defendant (unsympathetic client):
• Strategy 1: Make the case about an ideal or constitutional right, not the client
(State of Punjab v. Baldev Singh, 1999 — framed as protecting the right against
unlawful search for all citizens).
• Strategy 2: Humanize with neutral, relatable traits (sole breadwinner,
community service).
• Strategy 3: "Man vs. Self" narrative — in drug cases, present addiction as the
antagonist and show rehabilitation potential.
For a corporate client (faceless, wealthy, unlikable):
• Strategy 1: Highlight social utility and employment impact.
 • Strategy 2: Humanize through relatable individuals — attribute actions to
people, not the entity.
• Strategy 3: If misconduct was by rogue employees, portray corporation as
victim (ICICI Bank Ltd. v. APS Star Industries Ltd., 2010).
Ethics: These are presentation techniques for the truth — not a licence to exaggerate,
omit key facts, or dramatize unfairly. The goal is to ensure your client is fully seen and
understood.

69. Dickerson — "One Approach to Teaching Legal Drafting"

"The process of drafting operates in two planes: the conceptual and the verbal."
Legal drafting is not about summarizing doctrine — it is about designing obligations
that anticipate real-world use. A contract is not a brief; it is law in motion.
Key principles reinforced:
• Write early, revise often — early drafts reveal gaps in logic, missing facts,
unclear structure.
• Clarity and precision are the top priorities; literary flair is irrelevant.
• Consistency in terms — using "Purchaser" in clause 2 and "Buyer" in clause 5
creates interpretive uncertainty. Using synonyms when you mean the same
thing is dangerous.
• Scaffolded learning: revise a clause → draft a full document → reflect on
shared errors. Students learn from each other's mistakes, as in a law firm.
• Ambiguity harms the public. Clear drafting protects rights and upholds the rule
of law.

70. Ros Macdonald — "Plain English in the Law"

• Plain English is a reader-centred, ethical drafting philosophy — not
dumbing down, but communicating with the reader's needs in mind.
• The myth that legalese equals precision is false. Plain English can be equally
precise, often more so, because it removes the clutter of synonym-stacking.
• Modernise style: "Shall have paid" → "Pays." "In the event that" → "If."
"Herewith enclosed" → "Enclosed."
• Use active voice wherever possible: "The vendor may terminate the
agreement" not "The agreement shall be terminated by the vendor."
• One concept per clause. Break long clauses. Avoid "Provided that..." — create
a separate rule instead.
• Short sentences (target under 25 words). Place important issues first.
• "Plain language is not a compromise. It's a higher standard."
 71. Vidhi Manual on Plain Language Drafting
Indian laws still reflect colonial drafting: endless long titles, confusing provisos,
gendered language. The Manual prescribes:
• Structure: Short titles; minimal preambles.
• Language: Replace hereinafter → "from now on"; mutatis mutandis → "with
necessary changes"; after > "subsequent to"; gender-neutral "the person shall"
instead of "he shall."
• Clauses: One idea per clause; avoid provisos; break into sub-clauses.
• Style: Positive framing ("The court may take cognizance only if...") over
negative ("No court shall take cognizance unless..."); consistent terminology —
don't alternate between "landholder" and "owner" unless intentional.
• Final test: "Will the person reading this understand it — the first time?" If not,
revise.

72. "Judgment by Thesaurus" — Critique of SC Language (Vardarajan)

The article critiques Subramanian Swamy v. Union of India for Justice Dipak Misra's
overly ornate language — phrases like "exposits cavil in its quintessential
conceptuality" and "made paraplegic on the mercurial stance of individual
reputation."
Lessons:
• Complex vocabulary ≠ legal intelligence.
• Obscure metaphors and adjective-heavy prose distract from legal reasoning.
• The job of a legal writer is not to impress — it is to express, with clarity,
precision, and purpose.
• Even judges are not above critique for their writing style — but professional
criticism must educate, not humiliate.

73. E2. FUNDAMENTALS OF PLEADINGS — MOGHA SYNTHESISED

74. Material Facts (Order 6 Rule 2 CPC)
• Facta probanda: Material facts to be proved (these go in pleadings).
• Facta probantia: Evidence to prove those facts (does NOT go in pleadings —
reserved for trial).
• State facts, not law (the judge applies the law), not evidence, not legal
conclusions.
 • If in doubt, plead it. The test: If all the pleaded facts are proved, does the
client succeed? If removing one fact still leaves the client succeeding, that fact
is not material and should not be pleaded.
• For fraud claims: must state full particulars.
• Admissions of the opposite party are evidence, not material facts — do not
include them in pleadings.
Exceptions where law must be pleaded:
• Foreign laws (court takes no judicial notice — plead as facts).
• Mixed questions of law and fact (plead both).
• Custom and usage (must plead if relying on them, unless judicially recognised).

75. Plaint Structure — Order VII, Rule 1 (complete list)

A plaint must contain: (a) Name of the court; (b) name, description, and place of
residence of plaintiff; (c) same for defendant; (d) statement if either party is a minor or
person of unsound mind; (e) facts constituting the cause of action and when it arose;
(f) facts showing court has jurisdiction; (g) relief claimed; (h) amount allowed or
relinquished (if applicable); (i) valuation for jurisdiction and court fees.
Where immovable property is involved: include boundaries or survey numbers.
If the suit is filed after expiry of limitation: plaint must show the ground for
exemption (Rule 6).

76. What is a Cause of Action?

(Lord Brett's definition via Privy Council): "The cause of action means every fact
which will be necessary for the plaintiff to prove, if traversed, in order to support his
right to the judgment."
Key distinctions:
• A single transaction may give rise to several causes of action (e.g., a collision
→ damage to cab + bodily injury = two separate COAs, though the same
event).
• One suit cannot cover two separate causes of action within the same COA
(cannot split: one suit for wheel damage, another for axle damage from the
same accident).
• COA has no relation to the defendant's defence, or the character of relief
claimed.
• It does determine: limitation period computation; proper forum; joinder rules.

77. Joinder and Misjoinder of Causes of Action

 • A plaintiff may join as many COAs against a defendant as they wish.
• Multiple plaintiffs can join if they are jointly interested in all COAs.
• Multiple defendants can be joined if all are jointly interested in all COAs.
Three types of misjoinder:
1. Misjoinder of COAs: Unrelated claims joined (tort damages + possession of
property) without leave of court.
2. Misjoinder of plaintiffs and COAs: Multiple plaintiffs whose claims are not
jointly interested and do not share a transaction or common question.
3. Misjoinder of defendants (multifariousness): Multiple defendants not jointly
interested in the COAs, and COAs do not arise from the same transaction or
present common questions.
Non-joinder of a necessary party is fatal to the suit. Non-joinder of a proper party is
not fatal but adjudication may be incomplete.

78. Written Statement — Mogha's Detailed Structure

Before drafting:
• Examine the plaint carefully for all particulars and documents.
• Seek inspection/discovery if documents are missing.
• Move to strike out scandalous or embarrassing allegations.
• If multiple defendants with conflicting defences: separate written statements
(e.g., Hindu father + sons in mortgage suit).
Formal portion:
• Same heading/title as plaint.
• State whose WS it is: "Written statement on behalf of all Defendants" or
"Written statement on behalf of Defendant No. 1."
• No relief should be claimed in the formal portion (except set-off/counterclaim).
Forms of defence (body of WS):
1. Traverse (total denial): "Defendant denies executing the bond."
2. Confession and avoidance (special defence): "Even if the bond was executed,
the amount has been paid."
3. Objection in law: "The plaint does not disclose a cause of action because no
consideration is mentioned."
4. Peremptory plea (limitation): "The suit is barred by limitation."
5. Set-off: "Defendant has a pending claim of Rs. 1 lakh from Plaintiff which
should be set off."
Alternative and inconsistent defences:
 • Alternative defences are permitted: "Claim is barred by limitation, OR the
amount has been repaid." Either ground alone defeats the claim.
• Inconsistent defences in theory are permitted: "I never signed the bond; but if I
did, I have repaid it."
• Completely self-contradictory factual assertions are NOT permitted: "I never
signed the bond and I signed it." These cancel each other out and cannot both
be true.
Recommended drafting order:
1. Preliminary objections (lack of jurisdiction, limitation, misjoinder, no COA —
placed before para-wise replies).
2. Para-wise admissions and denials.
3. Denials.
4. Dilatory pleas.
5. Objections in law.
6. Special defences (confession and avoidance).
7. Set-off/Counterclaim.
Key rule (O.8 R.7): Different grounds of defence based on separate facts must be
stated clearly and separately in the WS.
Subsequent pleadings (O.8 R.9): After WS is filed, no further pleadings can be filed
as of right except the plaintiff's reply to a set-off or counterclaim. Any other additional
pleading requires leave of the court (which may fix a maximum 30-day time limit).
Consequence of failure to file WS (O.8 R.10): Court may pronounce judgment
against the defendant, or make any other order it thinks fit.

79. Set-off vs. Counter-Claim — Detailed Comparison

Set-Off (O.8 R.6 CPC):
Essentials:
1. Plaintiff's suit must be for recovery of money.
2. Defendant's claim must also be for an ascertained sum of money — legally
recoverable, not vague or unliquidated.
3. Debt must be within the pecuniary jurisdiction of the court.
4. Both parties must sue in the same capacity (not trustee vs. personal capacity).
5. Must be pleaded in the Written Statement at the first hearing.
Legal set-off vs. Equitable set-off:
• Legal set-off: Under CPC; must be an ascertained debt.
 • Equitable set-off: Recognized in equity where both claims arise from the same
transaction — even if unascertained — court has discretion.
History: Rooted in the doctrine of compensation; known as "stoppage" in English
Chancery Courts; formally codified in 1729; adopted in India via CPC.
Counterclaim (O.8 R.6A–6G CPC):
Essentials:
• Filed by the defendant; claim must be independent/separable from plaintiff's
claim.
• Amount must accrue before or after filing of suit, but before WS is filed or
before the time limited for WS has expired.
• Can be filed after WS but before issues are framed and before recording of
evidence begins.
• Must be directed against the plaintiff (courts have occasionally allowed against
co-defendants if necessary for justice — but cannot be solely against a co-
defendant: Rajul Manoj Shah, 2025 INSC 1109).
• Cannot be filed at the appellate stage.
• Even if plaintiff withdraws their suit, the counterclaim survives and will be
adjudicated (O.8 R.6D).
Court's power to exclude (O.8 R.6C): Plaintiff can apply to exclude counterclaim if it
is inconvenient to try with the main suit or would delay/complicate proceedings.
Default (O.8 R.6E): If plaintiff does not file a WS against counterclaim, court may
pass judgment against the plaintiff.

Feature Set-Off Counter-Claim

Defensive (reduces plaintiff's

Nature Offensive (independent claim)
claim)

Any cause of action (contract, tort,

Trigger Must be for ascertained money
property)

Transaction Must arise from same

Need not arise from same transaction
link transaction (legal set-off)

Before issues framed (after WS if

Timing Raised at first hearing with WS
court permits)

Does not survive if plaintiff

Survival Survives even if plaintiff withdraws
withdraws

Amount Reduces plaintiff's claim; Can result in decree for defendant

Feature Set-Off Counter-Claim
balance may be decreed even if plaintiff's suit fails

80. E3. AMENDMENT OF PLEADINGS — ORDER VI RULE 17

The Rule: The court may at any stage allow either party to alter or amend their
pleadings on such terms as may be just, for the purpose of determining the real
questions in controversy.
Proviso: After trial has commenced (i.e., after issues are framed and first evidence is
recorded), no amendment is allowed unless the party can show that despite due
diligence, the matter could not have been raised earlier.
Test for granting amendment: Does the amendment help the court adjudicate the
real dispute?
What is typically allowed:
• Correction of party description (wrong address, name).
• Adding a relief of possession alongside declaration.
• Bringing subsequent events on record (e.g., cancellation of lease during
pendency).
• Clarifying valuation or prayer clause.
What is NOT allowed:
• Changing the entire nature of the suit (from contract claim to tort claim).
• Introducing a time-barred claim.
• Mala fide amendments to delay proceedings.
• Totally new/inconsistent case at a late stage (e.g., switching from contract to
adverse possession after trial begins).
Application must include:
1. Exact para/relief to be inserted or altered (quote it precisely).
2. Reason for the omission (inadvertence, new discovery, clerical error,
subsequent event).
3. Why the amendment is necessary for determining the real controversy.
4. Due diligence explanation (if trial has begun).
5. Statement that amendment will not cause prejudice.
Timeline approach: Before trial begins → liberal approach. After trial begins →
strict scrutiny; must show due diligence.
 81. E4. RETURN AND REJECTION OF PLAINT — ORDER VII RULES 10
& 11
82. Return of Plaint — Rule 10
"The plaint shall at any stage of the suit be returned to be presented to the Court in
which the suit should have been instituted."
This is a jurisdictional issue — the court lacks territorial, pecuniary, or subject-matter
jurisdiction. Application must state which jurisdictional defect applies and show that
no part of the COA arose within the current court's jurisdiction. Do not argue merits;
stick strictly to jurisdiction.

83. Rejection of Plaint — Rule 11

The plaint shall be rejected (mandatory — court has no discretion once conditions are
met) if:
(a) It does not disclose a cause of action — court looks at plaint only, not defence. (b)
Relief claimed is undervalued and plaintiff, on being required by the court, fails to
correct within the time fixed. (c) Plaint is insufficiently stamped and deficit is not paid
within time fixed. (d) Suit is barred by any law (limitation, SRA bars, statutory bars
like S.69 Partnership Act — unregistered firm cannot sue) — bar must appear from
the plaint itself. (e) Plaint is not filed in duplicate. (f) Plaintiff fails to comply with
Rule 9 (copies/summons).
Important: Courts scrutinise only the plaint and its annexures — not the written
statement or evidence — when considering a Rule 11 application.
Application can be made at any time before decree.
Drafting a Rule 11 application:
• Identify which precise clause (a–f) applies.
• Extract the plaint's own averments to demonstrate the defect.
• Stress that the defect appears from the plaint itself.
• Emphasize the mandatory language: "the court shall reject the plaint."

84. E5. INJUNCTIONS — DETAILED

85. Types
1. Temporary Injunction: Short-term, during pendency of suit — Order 39
Rules 1 and 2 CPC + Section 37(1) SRA. Preserves subject matter, maintains
status quo.
2. Permanent/Perpetual Injunction: Final decree at conclusion of trial —
Sections 36–38 SRA. Permanently restrains defendant.
 3. Mandatory Injunction: Compels a positive act — Section 39 SRA.
Exceptional; only where necessary to prevent irreparable harm (e.g., demolish
illegal structure, restore possession).
4. Prohibitory Injunction: Restrains a wrongful act — Sections 37–38 SRA.
Negative in form.

86. Temporary Injunction — Order 39 Rules 1 & 2

When it can be granted (Rule 1): (a) Property in dispute is in danger of being
wasted, damaged, alienated, or wrongfully sold. (b) Defendant threatens to
remove/dispose of property to defraud creditors. (c) Defendant threatens to dispossess
plaintiff or cause injury in relation to property in dispute.
Rule 2: In suits to restrain breach of contract or injury — court may grant injunction
on such terms as it thinks fit.
Rule 2A (Consequences of breach):
• Court may attach property of the violator.
• Detain person in civil prison (maximum 3 months).
• If attachment continues beyond 1 year and breach continues, property may be
sold and proceeds used for compensation.
Three tests (mandatory — all three must be satisfied):
1. Prima facie case: Applicant must establish existence of right and its violation
— not proof to the hilt, but a serious question for trial. The dispute must be
bona fide and arguable.
2. Irreparable injury: Injury not compensable adequately in money. Even with a
prima facie case, injunction may be refused if damages are adequate. The test:
would compensation ultimately payable, if successful, place the plaintiff in the
position they were in before the injunction was refused?
3. Balance of convenience/inconvenience: Comparative hardship test — who
suffers more if the injunction is granted/refused? Court weighs the substantial
mischief likely to occur to the applicant if refused against the harm to the
defendant if granted.
Equitable maxims:
• Ubi jus ibi remedium — where there is a right, there is a remedy.
• One who seeks equity must come with clean hands.
• Equity aids the vigilant, not those who slumber on their rights.
Courts may impose terms: Undertaking as to damages, security. But conditions must
be reasonable — cannot be so onerous as to virtually deny the relief.
Status quo: Same principles as injunction — maintain existing condition.
 87. Grounds for Refusing Injunction (Section 41, SRA)
Injunction cannot be granted:
1. Against another court case (except to prevent multiplicity of proceedings on the
same issue).
2. Against legislative action.
3. Against criminal proceedings.
4. To enforce a contract of personal service (master-servant contracts).
5. Against a nuisance that is not clearly proven.
6. If plaintiff knowingly accepted the breach (remained silent, allowing breach to
continue).
7. If another adequate legal remedy exists (except breach of trust).
8. When plaintiff's conduct is unfair (unclean hands).
9. When plaintiff has no real personal interest.

88. Section 42 SRA — Injunction to Perform Negative Agreement

Even if specific performance of the affirmative/positive part of a contract is not
possible (e.g., personal service contracts are barred under Section 14 SRA), the court
can still grant an injunction to enforce the negative covenant (the "don't do" part).
Classic example: A contracts to sing exclusively at B's theatre for 6 months and not to
sing elsewhere. The court cannot force A to positively perform at B's theatre (specific
performance of personal service — barred). But the court CAN restrain A from
singing elsewhere (enforcing the negative covenant).

89. Relationship between Order 39 CPC and Sections 36–42 SRA

• Order 39 is procedural law — governs when and how courts grant temporary
injunctions during pendency.
• Sections 36–42 SRA are substantive law — define what injunctions are, who
can get them, and when courts should or should not grant them (primarily
governing perpetual/permanent injunctions, but providing guiding principles
for interim relief too).
• Temporary injunctions (CPC) ensure that final permanent relief (SRA) is not
frustrated before trial ends.
Format of an injunction application: Heading → Introductory paras (facts +
urgency) → Legal basis (O.39 R.1–2 CPC, S.37 SRA) → Grounds (property in danger
/ dispossession / breach) → Three-limb test (prima facie case, irreparable injury,
balance of convenience) → Notice/ex parte clause (urgency reasons) → Specific and
limited prayer → Verification and Affidavit.
 90. E6. CIVIL APPEALS — DEEPER (Sections 96–115, Orders XLI–XLVII
CPC)
91. Section 96 — First Appeal: Sub-Sections Summarised
• S.96(1): Right of first appeal from any decree passed by a court exercising
original jurisdiction — lies on both questions of law and fact. Default: right to
appeal exists unless expressly barred.
• S.96(2): Can appeal even an ex parte decree.
• S.96(3): No appeal lies from a consent decree (parties agreed and asked the
court to pass it — Vikram example: cannot appeal a decree he consented to).
• S.96(4): For suits in Small Causes Courts below Rs. 10,000 — appeal only on
a question of law.
S.97: If you did not appeal a preliminary decree, you cannot challenge its correctness
when appealing the final decree.
S.98: If a two-judge bench is equally divided — the decree of the lower court stands
confirmed. If there are more judges available, the point of difference may be referred
to another judge; majority of all judges (including the original bench) decides.
S.99: A decree shall not be reversed or modified merely for errors, defects, or
irregularities in pleadings or procedure (including misjoinder of causes of action)
unless they affected the merits of the case or the jurisdiction of the court.
Order XLI — Form and rules for first appeals:
• Memorandum of appeal: signed by appellant/pleader, accompanied by certified
copy of judgment/decree.
• Structure: (i) parties and court below; (ii) relief sought; (iii) numbered grounds
(concise — no extended argument); (iv) concise statement of material facts; (v)
verification/affidavit.
• If appealing a money decree: court may require deposit of the amount in
dispute or security as a condition of stay of execution ([Link] R.1(3)).
• Additional evidence: Application under [Link] R.27 must explain specifically
why evidence could not be produced earlier.
• Cross-objections: Respondent may file cross-objections ([Link] R.22) — draft
as a separate pleading with numbered grounds and prayer.
Common mistakes to avoid in first appeals:
• Grounds written as long narrative arguments rather than concise grounds.
• No certified copy of decree/judgment attached.
• No security proposal when appealing a money decree and seeking stay.
• Missing or improper cross-objections when respondent seeks to challenge
adverse findings.
 92. Sections 100–103 — Second Appeal
S.100: Only if HC is satisfied there is a "substantial question of law" — the
memorandum must precisely state that question. HC frames the question; appeal is
heard on that question only.
S.101: No second appeal except on ground in S.100 (a substantial question of law).
S.102: No second appeal in suits for money recovery not exceeding Rs. 25,000.
S.103: Exception — HC can decide an issue of fact in a second appeal if (a) the lower
appellate court has not determined the issue, or (b) has wrongly determined it, AND
existing evidence on record is sufficient to determine it. HC cannot take new evidence
in second appeal.
Order XLII Rule 1: Provisions of Order XLI (first appeals) apply to second appeals
mutatis mutandis.
Common mistakes in second appeals:
• "Substantial question of law" stated as a factual dispute.
• No record or first appeal papers attached.
• Overbroad/vague questions of law.

93. Sections 104, Order XLIII — Appeals from Orders

Only those orders listed in S.104 or Order XLIII Rule 1 are appealable — there is no
general right to appeal every interlocutory order. Always check the Order 43 list
before drafting.
Caption: "Appeal under Section 104 read with Order XLIII CPC against Order dated
___."
Must state immediately which clause of Order XLIII the impugned order falls under
(to establish appealability at a glance).

94. Section 151 — Inherent Powers of Court

Court can make orders as are necessary for the ends of justice or to prevent abuse of
process — used sparingly. This is not a substitute for appeal or revision. Do not use
S.151 to re-argue merits. Verify by affidavit; ask narrowly for the particular order
needed.

95. Revision Petition — Additional Points (S.115 CPC)

Points to remember from Mogha/slides:
• Power is discretionary — no absolute right.
• Can only be filed against orders that have attained finality. Interim/temporary
orders are not revisable (e.g., an order restricting alienation for 6 months).
 Note: temporary injunctions, permanent injunctions, and mandatory injunctions
are appealable orders — revision does not lie.
• HC looks only at jurisdictional error — it does not reweigh evidence.
• HC after finding jurisdictional error passes directions to the lower court to
correct it — it does not pass orders/decisions like an appellate court.
• HC can exercise revisional powers suo motu.
• HC cannot set aside findings of fact of the lower court.
• Filing a revision petition does not operate as a stay of the original suit or
proceedings unless HC orders it.

96. E7. CRIMINAL PLEADINGS — ADDITIONAL PROVISIONS

97. Criminal Complaint — BNSS §223 (formerly S.200 CrPC)
Distinction: FIR vs. Criminal Complaint

Feature FIR (BNSS §173) Criminal Complaint (BNSS §223)

Filed with Police Station Magistrate

Offence
Cognisable offence Any offence
type

Effect Investigation begins Magistrate examines on oath

Further Police files chargesheet or Magistrate may dismiss (§226) or issue

step closure report process (§227)

Criminal Complaint defined (BNSS §2(h), formerly CrPC §2(d)): An allegation

made orally or in writing to a Magistrate that some person has committed an offence.
Does not include a police report.
Cognizance by Magistrate (BNSS §210, formerly CrPC §190): Magistrate takes
cognizance on (a) police report, (b) complaint, (c) other information, or (d) own
knowledge.
Examination of complainant (BNSS §223): When taking cognizance on a
complaint, Magistrate shall examine the complainant and any witnesses on oath and
reduce the substance to writing.
Drafting a criminal complaint: Always state (i) facts showing offence; (ii) sections
of BNS/BNSS; (iii) prayer to take cognizance.

98. Bail — Additional BNSS Provisions

Section 478 BNSS (formerly S.436 CrPC) — Bailable Offences:
 • In a bailable offence, bail is a matter of right.
• Police officer or court must release accused if surety/personal bond is
furnished.
• Indigent persons may be released on personal bond (no surety required).
• Drafting: State the offence is bailable, attach arrest memo/FIR, state readiness
to give bond, ask for immediate release under §478.
Section 479 BNSS (formerly S.436A CrPC) — Undertrial Release:
• If an accused has undergone detention for up to one-half of the maximum
sentence for the offence (or one-third for first-time offenders), the court shall
release on bail (subject to limited exceptions).
• Drafting: Compute and plead exact detention period (attach jail ledger/custody
certificate); show maximum prescribed sentence; identify whether first-time
offender; ask for release under §479.
Section 481 BNSS (formerly S.437A CrPC) — Bond for Appellate Court
Appearance:
• When a trial or appeal ends, before releasing the accused, the court must take a
bond with sureties requiring the accused to appear before the higher (appellate)
court if that court later issues notice in an appeal.
• Purpose: Prevents accused from disappearing after acquittal/conviction while
appeal may still be filed.
• Drafting: Always add a clause in bail bond: "The accused undertakes to
appear before the appellate court if called upon in any appeal arising from this
case."
Section 483 BNSS (formerly S.439 CrPC) — Special Powers of HC/Sessions:
• HC/Sessions Court can: (a) direct release on bail for accused in custody
(impose/modify conditions); (b) set aside or modify Magistrate's bail
conditions; (c) cancel bail and direct arrest.
• Drafting: Emphasise exceptional circumstances (grave miscarriage, improper
conditions, witness interference); demand specific relief.

99. Sureties and Bonds — BNSS §§486–496

Key provisions to know:
• §484: Bond amount must be reasonable; HC/Sessions may reduce excessive
bail.
• §485: Accused and sureties must execute bond binding appearance and
conditions.
• §486: Sureties must declare the number of persons they stand surety for.
 • §487: On execution of bond, accused must be released unless detained in
another case.
• §488: If sureties are insufficient, court may demand fresh sureties or arrest
accused.
• §489: Surety can apply to be discharged; accused must produce new surety.
• §490: Court may allow deposit of money/Government securities in place of
sureties.
• §491: If bond forfeited, court may recover penalty as fine (power to remit).
• §492: On bond forfeiture, court may cancel bail and issue arrest warrant.
• §495: Orders under §491 (forfeiture of bond) are appealable.

100. Maintenance — BNSS §§144–147 (formerly S.125–128 CrPC)

Section 144 (formerly S.125) — Order for Maintenance:
Who can apply: Wife (legally wedded, unable to maintain herself); minor children
(legitimate or illegitimate); unmarried daughters; parents (unable to maintain
themselves).
Conditions: Respondent has sufficient means and neglects or refuses to maintain.
Court: Magistrate of First Class.
Relief: Monthly allowance as Magistrate thinks fit. Interim maintenance can be
ordered quickly, even ex parte.
Drafting a maintenance application:
• Title: "Application under §144 BNSS for Maintenance."
• Para 1: State the relationship (wife/child/parent).
• Para 2: Inability to maintain (no income, no independent means).
• Para 3: Respondent's means (job, salary, business, property).
• Para 4: Neglect or refusal to maintain.
• Prayer: Direct respondent to pay Rs. ___ per month (interim + permanent).
Section 145 (formerly S.126) — Procedure: Proceedings can be taken against
person in district where they reside, or where they or their dependent last resided.
Power to proceed ex parte if respondent avoids service.
Section 146 (formerly S.127) — Alteration of Allowance: Magistrate can increase,
decrease, or cancel maintenance order on proof of changed circumstances.
• Husband loses job → allowance may be reduced.
• Wife remarries → allowance cancelled.
• Drafting: Application under §146 BNSS; plead "change of circumstances";
attach evidence.
Section 147 (formerly S.128) — Enforcement: If respondent fails to pay →
Magistrate may issue warrant to levy amount (like a fine); may sentence respondent to
imprisonment up to 1 month (or until payment); order can be executed anywhere in
India.

101. Criminal Appeals — BNSS §§413–435

• §419: District Magistrate can direct PP to appeal against acquittal in non-
bailable/cognisable offences. State Govt has similar power in HC.
• §423 + §425: Appeal = written petition + copy of judgment. If appellant is in
jail → petition via jail officer. Appeal may be summarily dismissed if no
sufficient grounds — but only after hearing appellant/advocate.
• §426: If not dismissed summarily → notice issued to appellant, state,
complainant (if conviction challenged), and accused. Full hearing required.
• §427 (Powers of appellate court): May reverse acquittal and order retrial;
reverse/alter conviction or sentence (reduce or enhance — but sentence
enhancement requires accused to be given chance to show cause); alter or
reverse other orders.
• §428: Rules for trial judgments apply to appellate judgments. Accused need not
attend pronouncement unless court directs.
• §430: Appellate court may suspend sentence execution and release appellant on
bail. For life imprisonment/death: prosecutor must be heard before bail.
• §432: Appellate court may collect/take new evidence if necessary.
Accused/advocate has right to be present when evidence is recorded.
• §434: Appellate decisions are final except appeals against acquittal or
enhancement. Appeals abate on death of appellant unless relatives continue
(e.g., wife continues appeal to clear deceased husband's name).

102. E8. CONVEYANCING — ADDITIONAL INSTRUMENTS

103. A. Sale of Immovable Property
Section 54, TPA: "Sale is a transfer of ownership in exchange for a price paid or
promised or part-paid or part-promised." The contract for sale of immovable property
must be in writing. Section 55 TPA lays down rights, duties, and obligations of vendor
and purchaser.
Where immovable property is valued over Rs. 100 → compulsory registration.
Why an Agreement to Sell precedes a Sale Deed:
• An Agreement to Sell is a preliminary contract — seller promises to transfer
ownership after certain conditions are met (full payment, regulatory approvals,
due diligence). Creates enforceable rights — buyer can compel seller to
execute deed (specific performance under Specific Relief Act).
 • A Sale Deed actually conveys legal title.
• You cannot go directly to a sale deed if conditions are not yet met.
• The agreement locks the deal and allows time for stamping, registration, and
compliance.

104. B. Stamp Duty — Key Provisions (Indian Stamp Act, 1899)

• S.3 (read with Schedule I): Every instrument shall be chargeable with duty as
per Schedule I. Stamp duty varies state to state.
• S.27: Requires full disclosure of consideration and all material facts to
determine correct duty.
• S.35: Bars courts from admitting unstamped or insufficiently stamped
documents in evidence until deficit duty plus penalty is paid.
• S.62: Penalizes evasion — fine up to 10 times the deficient duty; criminal
prosecution in fraud cases.
• Valuation rule: Duty is calculated on the higher of (a) the consideration
mentioned in the deed, or (b) the notified circle rate — to prevent
undervaluation.
• Process: Pay stamp duty → Execute document → Present for registration →
Registration complete → Title legally transferred.
Common instruments and stamp duty:

Instrument Stamp Duty

Agreement to Sell Varies; typically a percentage of sale value

Sale Deed Varies; typically a percentage of sale value

Lease Deed Varies; based on lease duration and rent

Mortgage Deed Varies; based on loan amount

105. C. Registration Act, 1908 — Key Provisions

• S.17 (Compulsory registration): Gift deeds, sale deeds, leases exceeding one
year, transactions under S.53A TPA (part performance).
• S.18 (Optional registration): Wills, leases below one year, certain agreements
not directly affecting immovable property.
• S.23 + S.25 (Timeline): 4 months from date of execution for normal
registration. Additional 4 months on payment of penalty (urgent necessity or
 unavoidable accident). Beyond 8 months — no power to condone — document
cannot be registered.
• S.28: Documents must be registered in the Registrar's office within whose
jurisdiction the property is situated.
• S.49: An unregistered document affecting immovable property:
o Cannot be admitted in evidence.
o Cannot create or transfer rights.
o But may be used for collateral purposes — proving possession or
character of holding.
Who may present a document for registration: (a) A person executing or claiming
under it; (b) their representative or assignee; or (c) their duly authorised agent under a
POA (executed per S.33 Registration Act).
Document operates from date of execution, not date of registration.

106. D. Arbitration Agreement — Section 7, Arbitration & Conciliation

Act, 1996
Definition (S.7(1)): An agreement by parties to submit to arbitration all or certain
disputes which have arisen or may arise in respect of a defined legal relationship,
whether contractual or not.
Forms (S.7(2)): Can be (a) an arbitration clause within the main contract, or (b) a
standalone/separate agreement.
Must be in writing (S.7(3)): An arbitration agreement is in writing if contained in:
• A document signed by the parties;
• An exchange of letters, telex, telegrams, or other telecommunication means
(including electronic) that provide a record of the agreement;
• An exchange of statements of claim and defence in which existence of the
agreement is alleged by one party and not denied by the other.
Incorporation by reference (S.7(5)): A reference in a contract to a document
containing an arbitration clause constitutes an arbitration agreement, provided the
reference is in writing and the reference is clearly intended to make that clause part of
the new contract.
Types of arbitration agreement:
1. Standalone/Separate Agreement: Independent document separate from the
main contract. Used when: main contract is silent on arbitration, or multiple
contracts share one arbitration mechanism. Even if the main contract becomes
invalid, the standalone agreement survives — doctrine of separability.
2. Arbitration Clause (within main contract): Most common form, embedded
as a clause. Constitutes an arbitration agreement under S.7(2).
 3. Incorporation by reference (S.7(5)): The purchase order refers to terms of the
Supply Agreement "including the arbitration clause therein" → arbitration
clause incorporated.
What to include in an effective arbitration clause:

Element Purpose

Which disputes are covered ("all disputes arising out

Arbitration trigger/scope
of or relating to this contract")

Determines lex arbitri (procedural law) and which

Seat/Place
court supervises

Number/Appointment of Sole arbitrator, three, appointing authority, default

arbitrators process

Institutional rules or ad hoc ICC, UNCITRAL, or parties' own rules

Language Language of proceedings and award

Interim measures/Emergency
Power to grant relief before tribunal is constituted
arbitrator

Governing law Law governing the arbitration agreement or procedure

Confidentiality Obligation regarding documents, hearings, awards

Costs/Fees/Interest Who bears costs; interest on awards

What happens if parties cannot agree on

Default provision
arbitrator/rules

Bharat Petroleum Corporation Ltd. v. Chembur Service Station, (2011) 3 SCC 710:
Arbitrary termination of dealership contracts is not sustainable; disputes in dealership
contracts (being contractual) must be referred to arbitration as per the agreement; civil
courts have limited jurisdiction when parties are bound by arbitration clause —
intervention only for illegality or public policy violations.

107. E. Partnership Deed

Governing law: Section 4, Indian Partnership Act, 1932. A partnership is a contract
between two or more persons to share profits of a business carried on by all or any of
them acting for all.
• A written partnership deed is not mandatory but highly recommended for legal
certainty.
 • Must be duly stamped and signed by all partners.

108. F. Assignment of Copyright

Governing law: Section 18, Copyright Act, 1957.
What it is: Transfer of ownership of copyright from the original owner
(author/assignor) to another person (assignee/publisher). The transferee becomes the
legal owner to the extent assigned.
Requirements:
• Must be in writing.
• Must be signed by the assignor.
• Assignment can be total or partial, territorially limited, and time-bound.

109. G. POA — Additional Points from Moman Lal Case

Moman Lal v. Anandi Bai & Ors., 1971 AIR SC 2177:
The SC held that authority to sell property must be expressly conferred in the
Power of Attorney. General words like "to manage" or "to deal with property" do not
include power to sell. The attorney's act of executing a sale deed without specific
authorisation was invalid and not binding on the principal.
Drafting tip: Always use clear, express, unambiguous language when granting
powers. If the intent is to authorise sale or transfer of property, state it specifically.
Avoid vague phrases like "manage" or "look after." Courts interpret POAs strictly; any
ambiguity is construed against the agent.
GPA vs SPA — Comparison:

Feature GPA SPA

Scope Broad; multiple matters Narrow; specific act(s) only

Limited to completion of
Duration Often longer-term
specified act

Legal representation, business Sale deed, specific legal

Examples
management transaction

Yes, but usually ends after

Revocability Yes, can be revoked
specific act

Not mandatory (except immovable

Registration Required if property involved
property)
Feature GPA SPA

Lower (restricted to specific

Risk Higher (wide-ranging powers)
purpose)

Essential legal considerations for POA:

• Principal must be of sound mind and legally competent.
• Attorney must act within the scope defined by the POA.
• POA can be revoked by principal at any time before expiry or completion of
purpose.
• Execution: signed by principal; witnessed by at least 2 people; must comply
with stamp duty and registration laws.
• Acts beyond authority may not be enforceable and may make the attorney
personally liable.

110. H. Components of a Deed — Detailed

(Complements Part XI of main primer)
Recitals (when operative part is ambiguous): "WHEREAS A is the absolute owner
of Plot No. 5 and Plot No. 6... AND WHEREAS A has agreed to sell..." — When
operative part says "the said plot" (singular, ambiguous), court refers to recitals to
identify which plot was intended.
Testatum (witnessing clause): "NOW THIS DEED WITNESSES"
Consideration and receipt clause: Must expressly state monetary consideration and
acknowledge receipt. Mandatory for sale deeds. "In consideration of Rs. 10,00,000
paid by B to A, the receipt whereof A acknowledges..."
Operative words: "grants," "sells," "transfers," "assigns" — these effect the transfer.
"...A hereby grants and conveys to B..."
Parcels (property description): Include survey number, boundaries, area, maps if
possible. "Plot No. 45, Survey No. 210, Area 200 sq. yards, Village Mehrauli..."
Exceptions and reservations:
• Exception = existing right excluded from transfer (e.g., specific trees retained
by vendor).
• Reservation = newly created right retained by vendor (e.g., right of way).
"Vendor reserves right of pathway to adjoining land."
Testimonium and signatures: "In witness whereof the parties have signed on the date
first above written."
Deed Poll (first-person style): "I, Mr. A, do hereby declare..." Indenture (bilateral
style): "This deed made between A and B..." (recitals use "between A and B" format).
End of EXTRAS section. All material sourced from the second set of professor's lecture
slides (merged_presentation_choladeck.pptx).