Module I: Fundamentals Rules of Pleadings

Meaning of Drafting, Pleading and Conveyancing

DRAFTING
Drafting is a science and can be acquired only by long practice. In simple terms, drafting
refers to the act of writing legal documents. The key feature of drafting is that it presents a
brief knowledge about the significant facts of the situation or issue. Drafting demands a lot
of skills combined with patience from the advocates. A properly drafted document aims at
accuracy and truth.
The whole process of drafting should follow three drafts before it is ready to be presented
before the authority. These drafts and their purposes are-
 The first draft: Aims at the comprehensiveness and fullness of the facts.
 The second draft: Aims at the improving of the first draft by the correction of the form
and the language by a considerable amount of trimming.
 The final draft: As the name suggests, it aims at giving a final touch and the finish up to
make the document authoritative and able to convince.

What principles govern “Drafting”?

The process of drafting is generally governed by 4 principles:
1) Formation of outline in a satisfactory manner: “the draft is the skeleton of a document.”
This statement suggests that the prepared draft should be elaborate and should address all
important issues.
In a nutshell, a draft should be:
 As detailed as possible
 Not be vague
 Able to fulfill the consideration of relevancy, content unity, chronology and
coherence.
 Such that every paragraph should contain one major point.

2) Emphasis on the arrangement of facts: A deep emphasis should be put on the manner in
which the facts of the case are arranged. The facts should be arranged step by step to
reflect an organized analysis of the problem. There must be uniformity and consistency in
the presentment of ideas.

3) Style and language: Style is an important factor for the transport of ideas. A clear
presentation is an essential requirement for clear thinking. The style should be simple
with the most appropriate use of legal terms that would convey the facts in a precise and
simple manner. The language too should be simple and faultless. Illogical paragraphing,
 poor punctuation, incorrect spelling and other such language that virtually render a
promising document to be worthless shall be avoided. Repetitions should be avoided.

4) Physical characteristics: The draft should be typed on standard quality paper (20 by 30
cms) with margins of 4 cms. at the top and left side and 2.5 to 4 cms. on the right side and
bottom.

PLEADING
“Pleadings” are statement of facts in writing drawn up and filed in Court by each party to a
case. As per Order VI, R.1 of Civil Procedure Code, 1908 pleading means plaint or a written
statement.
 Pleadings form the foundation for any case in the court of law. It is a statement in writing
filed by the counsel of plaintiff stating his contentions on the case, on the basis of which
the defendant shall file the written statement defending himself and explaining why the
plaintiff’s contentions should not prevail.

 Sometimes the plaintiff, having filed his plaint, may, with the leave of the court, file a
statement or the court may require him to file a written statement. In such cases, the
written statement forms part of the plaintiff’s pleadings.

 Similarly, there are cases in which the defendant having filed his written statement may,
with the leave of the court, file an additional written statement or the Court may require
him to do so. In such cases the additional written statement also forms part of the
defendant’s pleadings.

 This is the first stage of a suit. Code of Civil Procedure (CPC) in order 6, Rule 1 defines
pleadings as a written statement or a plaint. The plaintiff’s written statement and the
defendant’s additional written statement are termed supplemental pleadings.

Objective of pleading:
The whole objective behind pleading is to narrow down on the issues and provide a clear
picture of the case thereby enhancing and expediting the court proceedings. The pleadings
help both the parties know their point of dispute and where both parties differ so as to bring
forth the relevant arguments and evidence in the court of law.

Rules of Pleadings:
The four words which can crisply summarise the rule of pleading is ‘Plead facts not law’.
The counsel of both the parties should only project the facts in their respective case rather
than suggesting on the laws applicable in the particular case.
Basic or Fundamental Rules
Basic or Fundamental Rules are discussed in the sub-rule (1) of Rule 2 of Order VI of the
Code of Civil Procedure, 1908.
Summarising the provision, the basic rules of pleadings are the following:
 Facts should be pleaded upon and not the law
This was first held in the case Kedar Lal v. Hari Lal where it was held that the parties are
under the duty to state the facts on which they are claiming their compensation. The court
shall apply the law as per the stated facts to render the judgement. One should not assert or
apply any laws for claiming right on the stated facts.

 Material facts should be pleaded

The second basic rule is to present facts which are material only. Immaterial facts shall not
be considered. The question arose in the court of law that what is the actual scope of
‘material facts’.
It was decided by the judge in the case Union of India v. Sita Ram that material facts will be
inclusive of all those facts upon which the plaintiff’s counsel will claim damages or rights as
the case may be or the defendant will put forth his defence. In nutshell, facts which will form
the basis for claiming a right or compensation by the plaintiff or prove the defendant’s
defence in the written statement will fall under the ambit of being ‘material’.

 Evidence should not be included while pleading

It says that pleadings should contain a statement of material facts on which the party relies
but not the evidence by which those facts are to be proved.
There are two types of facts:
o Facts probanda: the facts which need to be proved, i.e material facts
o Facts probantia: facts by which a case is to be proved, i.e evidence
Only facts probanda should form the part of pleadings and not facts probantia. The material
facts on which the plaintiff relies for his claim or the defendant relies for his defence are
called facta probanda, and they must be stated in the plaint or in the written statement, as the
case may be.

 Facts in concise manner should be presented

This is the last and final basic rule of pleadings. Compressed and crisp presentation must be
adhered while presenting the pleadings. At the same time it must be kept in mind that in
order to maintain brevity of facts one should not miss out on important facts in the pleadings.
Pleadings can be saved from superfluity if one takes care in syntax.
Amendment of Pleadings:
Order VI Rule 17 Code of Civil Procedure:
Amendment of pleadings- The Court may at any stage of the proceedings allow either party
to alter or amend his pleadings in such manner and on such terms as may be just, and all
such amendments shall be made as may be necessary for the purpose of determining the real
questions in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced,
unless the court comes to the conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of trial.”

In which stage of civil suit pleading can be amended?

The Provision related to Amendment of Pleadings gives power to the civil court to allow
parties to alter, amend or modify the pleadings at any stage of proceedings. Provision for
Amendment of pleadings has been stated in Order 6 Rule 17 of the Code of civil procedure.
But the court will allow amendment only if this amendment is necessary to determine the
controversy between the parties. The purpose of this provision is to promote ends of justice
and not to defeat the law.
The Proviso of Order 6 Rule 17 states that court will not allow application of amendment
after the trial has been commenced unless court comes to the conclusion that party did not
raise the relevant facts before the commencement of the trial. This proviso gives
discretionary power to the court to decide on the application of pleadings after the
commencement of the Trial. An institution of the suit is necessary for applying for
amendment of pleadings.
This provision was deleted by the Civil Procedure (Amendment) Code, 1999. This omission
was made to ensure consistency in new changes in the civil code. But later, it was restored
by the Civil Procedure (Amendment) Code, 2000. This amendment has given power to the
court to allow application of the pleadings with some limitation.
In the case of Gurdial Singh v. Raj Kumar Aneja, the court stated that any person who is
applying for the amendment of pleadings should state that what is to be altered, amended or
modified in the original pleadings.
In the case of the Rajesh Kumar Aggarwal & Ors v. K.K. Modi & Ors, the court stated that
Amendment of pleadings consists of two parts :
1. In the first part, the word ‘may’ gives discretionary power to the court to allow or
disallow application of pleadings.
2. In the second part, the word ‘shall’ gives obligatory direction to the civil court to
allow the application of pleadings if this amendment is necessary for the purpose of
determining the real questions in controversy between the parties.
Why court allows amendment of Pleadings?
The primary objective for the court to allow application for Amendment of Pleadings is
secure the ends of the justice and prevent injustice to other parties. Also, this amendment is
necessary for the purpose of determining the real questions in controversy between the
parties. Amendments of pleadings help the parties to correct its mistakes in the pleadings. In
the case of Cropper v. Smith, the court stated that the object behind amendment of pleadings
is to protect the rights of the parties and not to punish them for the mistake made by them in
the pleadings.

What can be amended in pleading?

1. Plaint filed by the Plaintiff
2. Written Statements filed by the Defendant

Amendment of Pleadings when granted:

In the case of Kishan Das Vithoba Bachelor, the court stated that there are two necessary
conditions to be satisfied before granting leave for amendment of pleadings:
1. This grant of leave should not leads to the injustice to other party.
2. This Amendment of pleadings is necessary for determining the real question of
controversy between parties.

Amendment of Pleadings when refused:

1. Application of amendment of Pleadings is rejected by the court when this amendment is
not necessary for determining the real question of controversy between parties.

2. Application of amendment of pleadings is rejected when it leads to the introduction of a

totally new case. In the case of the Modi Spg. Mills v. Ladha Ram & sons7 Supreme
Court held that “ the defendant cannot be allowed to change completely the case made in
certain paragraphs of the written statement and substitute an entirely different and new
case”.

3. When the Plaintiff or defendant is negligent

4. When proposed alteration or modification is unjust

5. Application for Amendments of Pleadings is refused when it violates the legal rights or
cause injustice to the other party
6. Leave to amend is refused when it leads to the needless complications in the case.

7. Leave to amend is refused when there has been excessive delay by the parties in filing the
suit.

8. Application of Amendment is refused when it changes the nature of the disputes

9. The court will not grant application of amendment of pleadings if it is made with mala
fide intention.

[Link] several opportunities are given to parties to apply for amendment of pleadings.
But they failed to make an application.

Step by Step procedure for filing an application for Amendment of Pleadings

Step 1- Firstly the Plaintiff or Defendant who wants to amend its pleadings can write an
application for the amendment of pleadings to the concerned civil court.
Step 2- After drafting the application applicant needs to produce the application before the
concerned civil judge.
Step 3- He has to pay a required court fee under court fees Act, 1870.
Step 4- Applicant needs to tell the purpose of the alteration in his application.
Step 5- Judge will read the application and if he thinks fit that this alteration or amendment
is necessary for the purpose of determining the real questions in controversy between the
parties Than he will grant permission for amendment for pleading.
Step 6- After getting the order from the court, the applicant needs to file new pleadings
within the prescribed time and if no time has been prescribed by the court then he needs to
file it in 14 days from the date of order.
Step 7- He also needs to give a copy of altered pleadings to the opposite party.

Pleading

Written
Plaint
Statement

Plaint
 A Plaint is a legal document that contains the content of any civil suit which shows the
Plaintiff’s claim after filing suit. The plaint is the first step of the Plaintiff in the form of a
legal document for the commencement of suit and it shows what a Plaintiff wants from
that suit. The concept of a plaint is mentioned in the Civil Procedure Code. Through the
help of plaint, the plaintiff narrates or describes the cause of action and related
information which is considered as essential from the viewpoint of the suit.

 In the case of plaint, the cause of action consists of two divisions, first is the legal theory
(the factual situation based on which the plaintiff claims to have suffered) and second is
the legal remedy that the plaintiff seeks from the court. A plaint is considered an
important concept because it is the foremost and initial stage to initiate any lawsuit and
helps to find a civil court of appropriate jurisdiction.

 Section 26 of the Code of Civil Procedure states “Every suit shall be instituted by the
presentation of a plaint or in such other manner as may be prescribed.” This section
clearly shows that plaint is very much necessary for the establishment of a suit before the
civil or commercial court.

Necessary Contents of a Plaint:

A plaint is a legal document that contains a lot of necessary contents in the absence of which,
it cannot be considered as a plaint. The contents necessary for a plaint are mentioned in
Rules 1 to 8 of Order VII of CPC.
These are mentioned below:
 Plaint should contain the name of the commercial or civil court where a suit will be
initiated.
 Plaint should contain details of the plaintiff such as the name, address, and description.
 Plaint should contain the name, residence, and description of the defendant.
 When a plaintiff has some defects or problems in health or any type of disability, the
Plaint should contain a statement of these effects.
 Plaint should contain the facts due to which cause of action arises and where the cause of
action arises it should also be mentioned.
 Plaint should not only mention facts due to which cause of action arises but also those
facts which help in recognizing the jurisdiction.
 Plaint should also contain about that relief which the plaintiff seeks from the court.
 When the plaintiff is ready to set off a portion of his claim, the Plaint should contain that
amount which has been so allowed.
 Plaint should contain a statement of the value of the subject-matter of suit not only for
the purpose of jurisdiction but also for the purpose of court-fees.
 At last, the content that should be on plaint is the plaintiff verification on oath.
This shows that the plaint is a necessary component for the successful initiation of suits in
commercial or civil courts and plays a very important role throughout the suit. Some
additional particulars which were not mentioned above include the following: Plaintiff shall
state the exact amount of money to be obtained from the defendant as given under Rule 2 of
order VII whereas Rule 3 of order VII of CPC states that when the plaint contains subject
matter of immovable property, then the property must be duly described.

Rejection of plaint:
The Plaint shall be rejected in certain situations when requirements are not fulfilled. Some of
the situations in which the plaint is rejected are as follows:
1) CAUSE OF ACTION NOR MENTIONED
The plaint is rejected in a case where the cause of action is not disclosed. If the cause of
action is not disclosed then it is not possible to prove the damage caused to the plaintiff. To
seek relief against the defendant, the facts need to be mentioned clearly. In the case of Snp
Shipping Service Pvt. Ltd. v. World Tanker Carrier Corporation, the plaint was rejected and
the suit dismissed under Order 7, Rule 1(a) of the C.P.C.,1908.

2) IF RELIEF IS UNDERVALUED
The plaint is also rejected in a case where the plaintiff relief is undervalued and the plaintiff
is requested by the court to correct the valuation within the given time frame but the plaintiff
fails to do so.

3) IF DOCUMENTS ARE NOT PROPERLY STAMPED

The plaint is rejected in a case where all the documents are not properly stamped and the
plaintiff on being required by the court to supply the required stamp paper within a time to
be fixed by court fails to do so.

4) PLANTIFF HAVING NO RIGHT

The plaint is mostly rejected due to the statement mentioned in the plaint secured by any law
or statute that doesn’t give any right to the plaintiff to file the suit.

5) DUPLICATE COPY NOT SUBMITTED

When a duplicate copy of the plaint is not submitted whereas it is mentioned that it is
mandatory to submit the duplicate copy then in that condition plaint is liable to be dismissed.
Kalepur Pala Subrahmanyam v Tiguti Venkata: In this case, it was said that a plaint cannot
be rejected in part and retained part under this rule. It must be rejected as a whole and not
with the rejection of one part and acceptance of another. This judgment is considered as a
landmark judgment on the rejection of the plaint.
Drafting of a Plaint:
Drafting of plaint on any issue is considered as most important in order to file the suit in the
court and in this plaint drafted for the injunction on the use of unused land as a dumping area
by the resident of Malviya Nagar, New Delhi that leads to health problem of the plaintiff due
to huge collection of waste material and bad smell all the time.

IN THE CIVIL COURT AT SAKET NAGAR, DELHI

Suit No. 166 of 2020
Abhinav Sharma
B104, Malviya Nagar, New Delhi ……… Plaintiff
V.
Sharmistha Sharma
Malviya Nagar, New Delhi …….. Defendant
Suit for the Injunction On the use of Unused land as a dumping area

The Plaintiff submitted as under:

1. The plaintiff is a resident of Malviya Nagar, New Delhi, and the Defendant is a neighbor
of the plaintiff.

2. Unused land is near the house of the plaintiff, which is used by the resident of B106 i.e.
defendant as a dumping yard for the waste material of her house.

3. That the Defendant was all the time throwing the waste material in that unused land near
the house of the plaintiff.

4. Since a very long time of being used as a dumping yard by the defendant, there is a
collection of huge waste material that leads to the health problem of the plaintiff.

5. That the court has jurisdiction on this matter to fix an injunction on the use of unused land
as a dumping area as it restricts his free movement and also leads to affect health due to
defendant action.
Prayer:
It is Prayed that a decree for the injunction is passed in favor of the plaintiff against the
defendant. And some other relief as the court thinks fit.
Place: Malviya Nagar Signature
Date: 04/02/2020 (Abhinav Sharma)
Verification:
In the above-named plaintiff do hereby verify that the contents of the paras no. 1,2,3 and 4
are true to my knowledge and the contents of remaining paras are according to legal advice
from my advocate which I believe to be true.
Place: Malviya Nagar s/d of Plaintiff
Date: 04/02/2020 (Abhinav Sharma)

Written Statement
 The term written statement has not been defined under the code. But it can be defined as a
pleading of the defendant wherein he deals with every material fact alleged by the
plaintiff in the plaint and also states new facts and legal objections which are in his favour
and against the claim of plaintiff.

 The written statement is filed by the defendant or his duly constituted agent. Where there
are several defendants, they can either file different written statement individually or one
written statement, signed by all of them. But it can be verified by one of them who is
aware of the situation. A written statement filed by one defendant does not binds the other
defendants.

RULE 1: WRITTEN STATEMENT

The defendant within 30 days from the service of summons has to file the written statement
of his defence. In case the defendant fails to file his written statement within 30 days he can
file the same on any other day as the court permits with reasons to be recorded in writing, but
it shall not be later than 90 days from the date of service of summons.
There are some very important rules concerning the manner in which the statement of
defence ought to be presented. This includes:
1) All the documents supporting the defence or counterclaim must be produced
2) Any facts that the defendant considers relevant, whether new or old, must be brought up.
3) The denials and assertions must be specific, clear and explicit and must not be vague.
4) The statement must deal with every given fact, and any allegation that is not denied is
taken to be admitted.
For example, in the case of Bendat v. East India Company, the Court stated that the
combined effect of rules 3 & 4 specifically deal with every allegation of fact and deny the
same explicitly and to have the point of substance. If the denial is evasive the fact shall be
taken to be admitted and no other proof is needed.
It must be noted, however, that even if the defendant does not give a written statement the
plaintiff will still have to prove the case. It is the Court that needs to be convinced.
Defences in written statement:
In written statement defendant can specically deny the allegations made in the plaint by the
plaintiff against him. Besides this, he also can claim to set-o any sums of money payable by
the plaintiff to him as a counter defence (Order 8 Rule 6).
Further, if the defendant has any claim against the plaintiff relating to any matter in the issue
raised in the plaint, then he can separately le a counter-claim along with his written
statement. It is provided in Order 8 Rule 6A to 6G of the code.

Affidavits- Order 19
 Affidavits are dealt under Order 19 of the Code. It is a sworn statement made by the
person who is aware of the facts and circumstances which have taken place.
 The person who makes and signs is known as ‘Deponent’. The deponent makes sure that
the contents are correct and true as per his knowledge and he thereby concealed no
material therefrom. After signing the document, the affidavit must be duly attested by the
Oath Commissioner or Notary appointed by the court of law.
 The person who gives attestation to the affidavit shall make sure that the sign of the
deponent is not forged. The affidavit shall be drafted as per the provisions of the code. It
must be paragraphed and numbered properly.
 Even though the “affidavit” has not been defined in the code, it basically means “a sworn
statement in writing made specifically under oath or affirmation before an authorized
officer or Magistrate.”

Essentials
There are some basic essentials which are required to be fulfilled while submitting the
affidavit in the court:
 It must be a declaration by a person.
 It shall not have any inferences, it shall contain facts only.
 It must be in the first person.
 It must be in writing.
 It must be statements which are taken under oath or affirmed before any other
authorized officer or a Magistrate.

Contents of affidavit
As per Rule 3, an affidavit shall contain only those facts to which the deponent is aware of as
true to his personal knowledge. However, interlocutory applications can be filed wherein he
can admit his belief.
False affidavit
Under Section 191, 193, 195, 199 of IPC,1860, filing a false affidavit is an offence. Giving a
lenient view will undermine the value of the document and it will harm the proceedings and
will provide no justice to the parties. Criminal contempt of court proceedings can be initiated
by the court against the person who files false affidavits in the court of law. Strict actions are
taken against public officials who files false affidavits.
As per section 193 of the IPC:
 a person who intentionally gives false evidence or fabricates false evidence during a
judicial proceeding, he shall be punished with seven years of imprisonment and fine;
 and whoever intentionally gives or fabricates false evidence in any other case, shall be
punished with imprisonment of either description for a term which may extend to three
years, and shall also be liable to fine.

Verification of Pleadings
 Every pleading must be verified and signed by the person who makes the pleading. He
should also furnish an affidavit in support of his pleadings. For any reason, if the
deponent cannot verify and sign, it can be done by his authorized agent.

 Pleading starts with cause title and ends with relief asked for. After the relief the party
will subscribe his signature on the right side and the Advocate (where party engages an
Advocate) on the left side.

 Then comes the verification para. Verification is nothing but affirmation that the facts
mentioned in the plaint/written statement are true.
Rule 15 of Order VI C.P.C. reads as under:
Verification of Pleadings:
(1) Save as otherwise provided by any law for the time being in force, every pleading shall be
verified at the foot by the party or by one of the parties pleading or by some other persons
proved to the satisfaction of the court to be acquainted with the facts of the case.

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

(3) The verification shall be signed by the person making it and shall state the date on which
and the place at which it was signed.
(4) The person verifying the pleading shall also furnish an affidavit in support of his
pleadings.

Whatever may be the intention of the law makers, sub-clause (2) of Rule 15 is not
practicable in all cases. There are many practical difficulties, that too where suits are filed by
the corporations, institutions, banks, general power of attorney holders etc. In such cases, the
person who verifies the plaint may not be personally aware of the facts, truth or otherwise of
the particulars in the plaint. They simply file the suits as per the information available in the
records. For example, a power of attorney agent of a corporation is entitled to sign and verify
the plaint on behalf of corporation or one of the directors or other principal officer of the
corporation can sign and verify the plaint The object of verification is to make the party
verifying the pleading responsible for the particulars in the plaint or written statement as the
case may be. But in view of the practical difficulties mentioned above, verification simply
becomes a procedural one or just a formality simpliciter.
Normally the one who signs the plaint or written statement has to verify the same. But where
there are more than one plaintiff, it is sufficient if any of them verifies the plaint on behalf of
others.
Normal version of verification as is now in practice is as under:
I do hereby declare that the facts stated above are true to the best of my knowledge, belief
and information.

What is the significance of verification?

The verification requirement is significant, as it is intended to secure an assurance that the
allegations in the pleading are true and correct and not the product of the imagination or a
matter of speculation, and that the pleading is filed in good faith. (Martos et al. vs. New San
Jose Builders, Inc., G.R. No. 192650, October 24, 2012)

What is the effect of non-compliance with the requirements on or submission of a

defective verification?
 A pleading required to be verified but lacks the proper verification shall be treated as an
unsigned pleading (Sec. 4, Rule 7, Rules of'Court). Hence, it produces no legal effect
(Sec. 3, Rule 7, Rules of Court).

 An unsigned pleading produces no legal effect. However, the court may, in its discretion,
allow such deficiency to be remedied if it shall appear that the same was due to mere
inadvertence and not intended for delay. xxx. (Sec. 3, Rule 7, Rules of Court).
CONVEYANCING
 In law, conveyancing is the transfer of legal title to (of) real property from one person to
another, or the granting of an encumbrance such as a mortgage or a lien. A typical
conveyancing transaction has two major phases: the exchange of contracts (when
equitable interests are created) and completion (also called settlement, when legal title
passes and equitable rights merge with the legal title).

 It is the responsibility of the buyer of real property to ensure that he or she obtains a good
and marketable title to the land- i.e., that the seller is the owner, has the right to sell the
property, and there is no factor which would impede a mortgage or re-sale. Some
jurisdictions have legislated some protections for the buyer, besides the ability for the
buyer to do searches relating to the property.

 A system of conveyancing is usually designed to ensure that the buyer secures title to the
land together with all the rights that run with the land, and is notified of any restrictions in
advance of purchase. Many jurisdictions have adopted a system of land registration to
facilitate conveyancing and encourage reliance on public records and assure purchasers of
land that they are taking good title.

 The sale of land is governed by the laws and practices of the jurisdiction in which the
land is located. It is a legal requirement in all jurisdictions that contracts for the sale of
land be in writing. An exchange of contracts involves two copies of a contract of sale
being signed, one copy of which is retained by each party. When the parties are together,
both would usually sign both copies, one copy of which being retained by each party,
sometimes with a formal handing over of a copy from one party to the other. However, it
is usually sufficient that only the copy retained by each party be signed by the other party
only- hence contracts are "exchanged". This rule enables contracts to be "exchanged" by
mail. Both copies of the contract of sale become binding only after each party is in
possession of a copy of the contract signed by the other party—i.e., the exchange is said
to be "complete". An exchange by electronic means is generally insufficient for an
exchange, unless the laws of the jurisdiction expressly validate such signatures.