Professional Documents
Culture Documents
CS Professional Drafting Chapter 9 - Pleadings
CS Professional Drafting Chapter 9 - Pleadings
1. Introduction
2. Pleadings
3. Plaint
4. Written Statement
5. Affidavit and Execution Petition
6. Appeals
7. Other Concepts
8. Orders and Rules
9. Case Laws
Overview
INTRODUCTION
Consideration of Plaint by the Court & on satisfaction issuance of Summons/ Notice of the suit to the Defendant
WRITTEN STATEMENT
The defence statement containing all material facts and other
details filed by the defendant is called the “WRITTEN
STATEMENT”.
PLEADING
Pleadings are statements, written, drawn up and filed by each party to a
case, stating what his contentions will be at the trial and giving all such
details as his opponent needs to know in order to prepare his case in
answer”.
Overview
1. Objectives of Pleading
2. Fundamental Rules of Pleading
1. Rule 1- Meaning, Instances and Exceptions
2. Rule 2- Meaning, Instances and Exceptions
3. Rule 3- Meaning, Instances and Exceptions
4. Rule 4- Meaning
3. Points to be kept in mind while drafting Pleading
Index
OBJECTS OF THE PLEADINGS
• To define the issues involved between the parties;
• To provide an opportunity to the opposite party or other side to met up the particular allegation
raised against him or her, and
• To enable the Court to adjudicate the real issue involved between the parties.
A PLEADING SHALL
FUNDAMENTAL
RULES OF PLEADING
Foreign Law
Mixed
Customs question of
Exceptions to law and fact
the first rule
inferences
Legal Pleas
of law
RULE 2: A PLEADING SHALL Contain all material facts and material facts only Index
Why is it required to find the What if a material fact is
What are material facts? Role of a Lawyer
materiality of a fact? excluded?
• The facts which have a direct • A litigant brings all facts of • A fact may not appear to • Thus a lawyer must
and immediate bearing on the
a case even the ones may be material at the initial visualize all the possible
case are material which would
vary from case to case. Every have a little relevance to stage, but it may become directions or dimensions
fact on which the cause of the case to the lawyer. material at a later stage. which the pleadings are
action or the defence is founded likely to assume.
• Not all the facts can be • Thus it would be better to
is material fact.
included in the plaint as include than to exclude • There after he would
• Then there are other facts
which indirectly establish the this may lead the learned those facts because at the prepare an outline of the
cause of action or defence judge to miss the essential later stage, he will not be pleading and submit all
which are material facts are to
track. Other less relevant permitted to adduce such facts to a close
be proved at the time of
proceedings. facts may be omitted after evidence to prove such a analysis in order to prove
being checked by the fact unless the pleading is all such material facts he
lawyer. amended. The general rule would succeed.
is that a party cannot
prove a fact which he has
not pleaded.
INSTANCES FOR RULE 2 Index
• Condition Precedent (occurrence of an event without which a contract cannot be performed) - The performance of any
condition precedent need not be pleaded as its happening is implied in the pleading. But where a party chooses to
contest the performance or occurrence of such condition, he is bound to set-up the plea distinctly in his pleading. “Any
condition Precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in
his pleading by the plaintiff or defendant.”
• Presumption of law- neither party need in any pleading allege any matter of fact which the law presumes in his favour or
as to which the burden of proof lies upon the other side unless the same has first been specifically denied. A party
should not plead anything which the law presumes in his favour. Regarding legal presumptions the exception applies to
only such facts as the court “shall presume” and not to those facts which the court may presume”, and therefore the
facts falling under the latter class must be pleaded.
• Matters of Inducement- Another exception to the general rule is regarding facts which are merely introductory. Such
facts only state the names of the parties, their relationships, their professions and such circumstances as are necessary
to inform the court as to how the dispute has arisen. Such facts are hardly necessary or material to the pleading, but
they are generally tolerated and are set in the pleadings by both the parties in order to facilitate the court to take a
stock of the situation of the parties. It is better if such prefatory remarks are cut down to the minimum.
Index
The third fundamental rule of pleadings is that only facts must be stated and not the evidence there of as there is a tendency among
the litigants to mix up the bare facts with the facts which are in realty the evidence.
Every pleading shall contain a statement of the material facts on which the party pleading relies for his claim or defence but not the
evidence by which they are to be proved. While drafting a plaint, a lawyer must distinguish between facts which are asserted and
which must be established through evidence whether documentary or oral, and facts which are, by themselves, in the nature of
evidence.
The reason behind the rule stating evidence is that if the evidence were also allowed to be stated in the pleading that there shall
remain no limit of details and the chief object of the pleading would disappear. Evidence also consists of facts. How then to
distinguish between the two kinds of facts (i.e. material facts and evidence)? Long back in Ratti Lal v. Raghu AIR 1954 VP 53, the
question was answered thus: Material facts are those facts which a plaintiff must allege in order to show a right to sue or a defendant
must allege in order to constitute his defence.
At the initial stage only the former facts have to be narrated, and when the state of evidence comes, then the other facts will be
represented as a part of evidence in order to establish the first set of facts.
Evidence also consists of facts and there are two kinds of facts,
1. Facta Probanda- These are the material facts on which a party relies which are to be proved and are ought to be stated in the
pleading. On these facts, the party pleading relies for his claim or defence.
2. Facta Probantia- The facts by means of which material facts (facta probanda)are be proved and these are not to be stated in
Pleading. These facts are the evidence as to the existence of certain facts. Facta probanda are not facts in issue, but they are
relevant at the trial to proof the existence of facts in issue.
Mental Condition- Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be
sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. Thus it is sufficient to allege that the
CASES OF RULE 3
defendant has cheated the plaintiff to the extent of Rs. 10,000/-. It is not necessary, to plead how the defendant has cheated the plaintiff. The “how”
part would be evidentiary and should not be pleaded.
Notices- wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such notice as a fact unless the
form or the precise terms of such notice or the circumstances from which such notice is to be inferred, are material. In many cases notice has to be
alleged as a material fact.
Implied Contract or relations-wherever any contract or any rotation between any persons is to be implied from a series of letter or circumstances, it
shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters conversations or circumstances without setting them
out in detail.
Presumption of Law- neither party need in any pleading allege any matter of fact which the law presumes in this favour or as to which the burden of
proof lies up-on the other side unless the same has first been specially denied. Only exception to this rule is writ petitions and election petitions
Index
RULE 4- FACTS TO BE STATED PRECISELY
Index
Overview
PLAINT
In money suits- Where the plaintiff seeks the recovery of money, the plaint shall state the
precise amount claimed. But where the amount cannot be ascertained the plaint shall state
approximately the amount or value sued for.
Where the subject-matter of the suit is immovable property- where the subject-matter of
the suit is immovable property, the plaint shall contain a description of the property
sufficient to identify it or information about its boundaries or numbers.
When plaintiff sues as representative- Where the plaintiff sues in a representative character
the plaint shall show not only that he has an actual existing interest in the subject- matter,
but that he has taken the steps necessary to enable him to institute a suit concerning it.
Index
Index
STRUCTURE OF A PLAINT
1. Name of the Court in which the suit is filed along with jurisdiction
2. Before the heading of the plaint proper space should be left for affixing court-fee stamp. Just below the name of
the court, a space should be left for the number of the suit.
3. Thereafter the names of the parties to the suit with all necessary particulars should be given (Name, Son or
Daughter of, Age, Residence).
4. The title of the suit should be given
5. Where the plaintiff or defendant is a minor or a person of unsound mind, the fact should be mentioned in the
cause-title. At the same time the name and description to the person through whom such person sues or sued
should also be given in the cause-title.
6. Body of the Plaint: Then follows the body of the suit/plaint. The plaintiff acquaints the court and defendant with
the case. Always better to start with “The above named plaintiff states as follows” and follows with
1. That…..
2. That…..
Followed by claims of the Plaintiff stated with- “Wherefore the plaintiff claims –
1. That….
2. That….
7. Verification
8. Affidavit should also be enclosed with plaint as provided under Order 6 Rule 15 (4) CPC, 1908. All documents on
which the plaintiff relies for his claim should be enclosed with a separate List of Documents
Index
FEW EXAMPLES OF TITLES
• Individual person - AB S/o………Aged….. Res. of…………..
• Proprietary concern - AB S/o………Aged….. Res. of…………..proprietor of MIs XYZ and carrying on business at
• Partnership firm – M/s XYZ, a partnership firm registered under the Indian partnership Act, 1932 with its
principal place of business at ………….
• A company - M/s XYZ, Pvt. Ltd. A company incorporated under the companies Act having its registered office
at………….
• Company in Liquidation - M/s XYZ Ltd. In liquidation through liquidator Mr. ABC having office at ………….
• Statutory Corporation - The Life Insurance Corporation of India established and constituted under the Life
Insurance Act, having its registered office at ………….
• Municipality – Municipal Corporation of Delhi through its Chairman, Town Hall, Delhi.
• Minor - AB S/o………Aged….. a minor through his father and natural guardian S/o………Aged….. Res. of…………..
BODY OF THE PLAINT Index
THE BODY OF THE PLAINT IS DIVIDED INTO TWO PARTS
“Suit for specific performance and damages” Or “Suit for Recovery of money” Or “Suit for damages for malicious prosecution”
Or “Petition for Restitution of Conjugal Rights u/s 9 of the Hindu Marriage Act, 1955”
A written statement is required to be filed by the defendant in answer to the claim made by the plaintiff in his plaint in which he either accepts or denies the
allegations. The written statement must specifically deal with each allegation of fact in the plaint and when a defendant denies any fact, he must answer the
same in substance.
To make a written statement, the pleader of defendant side should carefully examine the plaint and check if all the details are present for him to understand the
case, If any particulars or documents are missing, defendant can ask the plaintiff to make available of those particulars or copies or documents before
defendant files the written statement.
If the defendant thinks any allegation/allegations in the plaint are embarrassing or scandalous, he should apply to have it struck out, so that he may not be
required to plead those allegations.
If there are several defendants, they may file a joint defence, if they have the same defence to the claim. If their defences are different, they should file separate
written statements, and if the defences are not only different but also conflicting, it is not proper for the same pleader to file the different written statements.
• Heading and title remains same as the plaint, except that, if there are several plaintiffs or defendants, the name of only one may be written with the addition
of “and another” or “and others”
• After the name of the parties and before the actual statement, there should be added some words to indicate whose statement it is, e.g., “written statement
on behalf of all the defendants” or “written statement on behalf of defendant No. 1”.
• The words “The defendant(s) states….…….” may be used before the commencement of the various paragraph of the written statement. No relief or dismissal
should be claimed in the written statement. But when a set off is pleaded or the defendant prefers a counter-claim for any excess amount due to him, a prayer
for judgment for that amount in defendant’s favour should be made.
Index
Body of the Written Statement
Forms of Defence
• a “traverse”, as where a defendant totally and categorically denies the plaint allegation
• “a confession and avoidance” or “special defence”, where he admits the allegations but seeks to destroy their effect by
alleging affirmatively certain facts of his own, as where he admits the bond in suit but pleads that it has been paid up, or
that the claim is barred by limitation
• “an objection in point of law” (which was formerly called in England “a demurrer”), e.g., that the plaint allegations do not
disclose a cause of action, or that the special damages claimed are too remote
Types of Pleas
• “Dilatory Pleas” may sometimes be taken which merely delays the trial of a suit on merits
• “Peremptory pleas” or “pleas in bar” which go to the root of the case
When the defendant relies on several distinct grounds of defence or set off, they should be stated in separate
paragraphs, and when a ground is applicable, not to the whole claim but only to a part of it, its statement
should be prefaced by words showing distinctly that it is pleaded only to that part of the claim, thus: “As to
the mesne(intermediate) profits claimed by the plaintiff, the defendant contends that, etc.” or “As to the price
of cloth said to have been purchased by the defendant, the defendant contends that, etc.”
All admissions and denials of facts alleged in the plaint should be recorded in the first part of the written
statement and before any other pleas are written.
If there are some defences which are applicable to the whole case, then those should be pleaded first over
other defences which apply only to a part of the claim.
When it is intended to take several defences in the same written statement, the different kinds of defences Index
should be separately written. It is convenient to adopt the following order for the several pleas:
5. Set off and counter-claim: According to Black’s Law Dictionary set off is the defendant’s counter demand against the plaintiff, arising
out of a transaction independent of the plaintiff’s claim. Following are the conditions: a. the sum claimed must be ascertained, b. it must
be legally recoverable, c. it must be recoverable by the defendant and from the plaintiff, e. It must not exceed the pecuniary limits, both
parties must fill the same character as they fill in the plaintiff’s suit. Set-off may be of two kinds: legal set-off and equitable set-off. The
counter claim is the claim made by the defendant against the averments made by the plaintiff. Counter claim must be treated as a
plaint.
Index
POINTS TO BE KEPT IN MIND FOR DRAFTING A WRITTEN STATEMENT
One has to deny the allegations of the plaint/petition which are incorrect or perverse. In any allegation contained in the plaint is not denied specifically, it is presumed to have
been admitted.
If the plaint has raised a point/issue which is not admitted by the defence, it is generally advisable to deny such point/issue and let the complainant prove that point. In reply,
one must submit the facts which are in the nature of defence in a concise manner.
Attach all relevant correspondence, invoice, challan, documents, extracts of books of accounts or relevant papers as annexures which should be duly page numbered and filed
with authority letter.
The reply should be given in such a manner that no para of the plaint is left unattended.
After reply, the same is to be signed by the constituted attorney of the defence otherwise it would be dismissed.
General rule is that no pleadings, no evidence. If any relief is not prayed for, will not be allowed. State all reliefs.
No party in any pleadings need to allege any matter of fact which the law presumes in his favour.
FORMAT OF A WRITTEN STATEMENT Index
Written Statement on behalf of the defendant to the suit for “specific performance and damages” Or “Recovery of money” Or “damages for malicious
prosecution” Or “Restitution of Conjugal Rights u/s 9 of the Hindu Marriage Act, 1955”
Original Petition: Suits are filed to lodge money claims in civil courts working under District
OTHER Courts while petitions are filed in High Courts which are above District Courts seeking some
directions against the opposite party; mostly the Government. After judgment in suit or
IMPORTANT petition, then any aggrieved party can challenge it by filing appeal in the higher court which is
called as Appeal but often in some court it is termed as Letters Patent Appeal (LPA) & as
I, A.B., aged………… years, son of Shri…………… resident of……………………, do hereby on oath (or on
solemn affirmation) state as follows:
1. Name of the court 1. That the
2. Description of the matter 2. That in proof of the aforesaid statement I attach hereto the documents marked A, B
and C.
3. The name, age, residence of the 3. That ….
person making the oath 4. That this my affidavit is true and, that it conceals nothing and no part of it is false.
4. The statements starting with “state Sd/- A.B.
as follows” followed by the points to Dated
be verified
Deponent
5. Reference to the documents Verification
attached I, the abovenamed deponent, verify that the contents of paragraphs 1 to 4 of this affidavit are
true to my personal knowledge. Sd/- A.B.
6. Date Dated……………………
7. Signature of the Deponent I,……………………S/o…………………R/o…………………………declare, from a perusal of the papers
8. Verification by the deponent (oath produced by the deponent before me that I am satisfied that he is Shri A.B.
maker) Sd/-……………………
9. Verification by the Authority Solemnly affirmed before me on this…………………… day of…………………… 20...... of……………………
(time) by the deponent.
certifying the Oath
10. Signature of the Authority
Sd/-……………………
(Oath Commissioner)
Specimen Affidavit of Creditor in proof of his debt in Proceeding for the Liquidation of a Company
IN THE (HIGH) COURT OF………………………………………… Index
In the matter of Companies Act, 1956
And
The matter of the liquidation of…………………… Company Limited.
I, A.B., aged………… years, son of Shri…………… resident of……………………, do hereby on oath (or on solemn affirmation) state as follows:
1. That the above named company was on the…………… day of………………, 20...., the date of the order for winding up the same, and still is
justly and truly indebted to me in the sum of Rupees……………………… (Rs……………………) only in account of (describe briefly the nature of the
debt).
2. That in proof of the aforesaid debt I attach hereto the documents marked A, B and C.
3. That I have not, nor have any person or persons by my order or to my knowledge or belief for my use, received the aforesaid sum
of Rupees……………… or any part thereof, or any security or satisfaction for the same or any part thereof except the sum or security (state the
exact amount of security).
4. That this my affidavit is true and, that it conceals nothing and no part of it is false.
Sd/- A.B.
Dated
Deponent
Verification
I, the abovenamed deponent, verify that the contents of paragraphs 1 to 4 of this affidavit are true to my personal knowledge. Sd/- A.B.
Dated……………………
I,……………………S/o…………………R/o…………………………declare, from a perusal of the papers produced by the deponent before me that I am satisfied
that he is Shri A.B.
Sd/-……………………
Solemnly affirmed before me on this…………………… day of…………………… 20...... of…………………… (time) by the deponent.
Sd/-……………………
(Oath Commissioner)
Index
EXECUTION PETITION
PETITION TO THE COURT FOR THE EXECUTION OF ANY DECREE OR ORDER
Index
No. of the suit, the name of the parties, the date of the decree and the amount of costs
awarded
the name of the person against whom execution of the decree sought, whether any
appeal has been preferred from the decree
1.the mode in which the assistance of the court is required, whether by delivery,
attachment, sale or sale without attachment of any property, arrest and detention of any
person, as the nature of the relief granted may require.
Any previous applications made for the execution of the decree, the dates and results of
such applications, whether any payment has been made between the parties
the amount with interest(if any), or relief granted, whether passed before or after the
date of the decree
Overview
APPEALS
1. Memorandum of Appeals
2. Types of Appeals
3. Appeals to the Supreme Court
4. Format of an Appeal
5. Grounds of an Appeal
6. Specimen Draft of an Appeal
Memorandum of Appeals
• The word “Appeal” has not been defined in the Index
Code of Civil Procedure, 1908.
• Any application by a party to an appellate First Appeals
Court, asking it to set aside or revise a decision
of a subordinate Court is an “Appeal”. • Appeal from original degree
• An Appeal cannot be filed unless so provided
for under the statute and when a law authorizes • Made to the Appellate Court
filing of an appeal, it can impose conditions as • On both Question of Facts and law
well.
• It is for the appellant to show that the statute
gives a right of appeal to him. Second Appeals
Made to the Court authorised to the High Court - The Supreme Court (the
hear appeals from the highest court)
decisions of former Court
involves Points on both Question Only points on Substantial Orders on grounds substantial question of
of Fact or Law question of law of defect or law of general
irregularity of law importance
Additional _ • Any appeal withdrawn Taken against order Taken only if the High
Points previously cannot be • Allowance of Court certifies: that the
restored special costs case involves a
• HC may determine any issue • Refusing leave to substantial question of
which was not or wrongly institute a suit law of general
determined previously • Compensation importance that needs to
for obtaining be decided by the
asset Supreme Court.”
• Imposing of fine,
orders of arrest
Appeals to the Supreme Court Index
Appeals in Constitutional cases : if the High Court certifies under Article 134A that the case
involves a substantial question of law as to interpretation of the Constitution.
Articles 132 to 135
of the Constitution
Appeals in civil cases : It should be a “judgement, decree or final order” of a High Court and
deal with ordinary
shall involve a substantial question of law.
appeals to the
Supreme Court:
Appeals in criminal cases: The Supreme Court has been constituted a Court of criminal appeal
in exceptional cases where the demand of justice requires interference by the highest Court
of the land. Certification of HC is not required in these cases.
In appeals, the
parties are not
entitled to produce When the party seeking The Appellate Court
additional evidence, When the lower Court to produce additional requires any document
but the Appellate has refused to admit evidence establishes to be produced or any
Court has discretion evidence which ought to that he could not witness to be examined
to allow additional have been admitted produce it in its trial to enable it to
evidence in the Court for no fault of his pronounce judgement
following
circumstances:
• Court Name
• Suit No.
FORMAT OF AN • Name of the Appellant
APPEAL • Name of the other party (whether plaintiff or
defendant)
• An introductory statement (the number and date of
decree, the court which passed it, and the name of the
presiding officer)
An appeal may be divided into three • Grounds of Appeal
parts:
1. formal part, known as the • Reliefs to be sought
memorandum of appeal, • Signature- A memorandum of appeal need not be
2. material part, grounds of appeal, and signed by the appellant himself. It may be signed by him
3. relief sought for. or by his counsel but if there are several appellants and
they have no counsel, it must be signed by all of them.
It is not required to be verified.
Index
GROUND OF APPEALS Index
The grounds of appeal be given under the heading “Grounds of Appeal”. The grounds of appeal are the grounds on which the decree or the
order appealed from is objected to or attacked. As a general rule, in the grounds of appeal, the following points may be raised:
• any mistake committed by the lower Court in weighing the evidence;
• any mistake in the view of law entertained by the lower Court;
• any misapplication of law to the facts of the case;
• any material irregularity committed in the trial of the case;
• any substantial error or defect or procedure;
• and the defect, error or irregularity of any inter-locutory order passed in the case, whether the same was appealable or not.
A ground taken but not pressed in the first Appellate Court cannot be revived in second appeal. A defendant can question the propriety of
ex parte proceedings in an appeal from the decree.
The general rule, besides being subject to Section 100 of the Code, is also subject to two conditions:
1. that the mistake of the lower Court should be material i.e., it should be such as affects the decision, and
2. that the objection taken must be such as arises from the pleadings and evidence in the lower Court.
Points for drafting “Grounds of Appeals”
1. Grounds of objection should be written distinctly and specifically;
2. They should be written concisely;
3. They must not be framed in a narrative or argumentative form; and
4. Each distinct objection should be stated in a separate ground and the grounds should be numbered consecutively.
SPECIMEN FORMAT OF AN APPEAL Index
IN THE HIGH COURT OF…………………… AT……………………
CIVIL APPELLATE JURISDICTION
REGULAR CIVIL APPEAL NO…………………… OF
IN THE MATTER OF:
A.B.C. Company Ltd. a company incorporated under the provisions of the Companies Act and having its registered
office………………………
Appellant
Versus
M/s…………………… a partnership concern (or XYZ company Ltd., a company incorporated under the Companies Act and having its
registered office at……………………)…
Respondents
May it please the Hon’ble Chief Justice of the High Court of…………………… and his Lordship’s Companion Justices,
The appellant-company
“Appeal from the decree of…………………… Civil Judge of…………………… at…………………… in Suit No…………………… passed on
the……………………”.
D. ……………………
8. That the valuation of this appeal for the purposes of payment of court-fee is fixed at ₹…………………… and the requisite court fee is
appended to this memorandum of appeal.
9. That this appeal is being filed within the prescribed period of limitation, the judgement and decree under appeal having been
passed on…………………
In the above facts and circumstances the appellant prays that this appeal be allowed, the judgement and decree under appeal be set
aside and the decree prayed for by the appellant in his suit before the court below be passed together with up-to-date interest and
costs of both courts.
APPELLANT
(………)
VERIFICATION
Verified at…………………… on this, the…………………… day of…………………, 20..... that the contents of the above appeal are correct to the
best of my knowledge and belief and nothing material has been concealed therefrom.
THROUGH
APPELLANT
Overview
OTHER MISCELLANEOUS
CONCEPTS
Complaint under section 2(d) of the Criminal Procedure Code means any allegation made orally or in writing to a
Magistrate, with a view to his taking action under this Code that some person, whether known or unknown, has
committed an offence, but it does not include a police report. In fact, the definition gives the requisites of the
complaint.
Report made by the police officer in a case which discloses after investigation, the commission of a non-
cognizable offence shall be deemed to be a complaint, and the police officer making the report to be deemed as a
complainant.
In general a complaint into an offence can be filed by any person except in cases of offences relating to marriage,
defamation and offences mentioned under Sections 195 and 197.
The facts which are connected with the incident and which can prove involvement of the accused in the offence
have to be stated in the complaint. The complaint must disclose the names of the witnesses of the offence.
Index
Criminal miscellaneous petition
• The filing of Criminal Miscellaneous Petition will start even BAIL
before registering the case by way of anticipatory bail
application. • Bail means the release of the accused from the custody of
• When a petition is filed seeking interim relief in criminal cases, the officers of law and entrusting him to the private
it is registered as Criminal Miscellaneous Petition. custody of persons who are sureties to produce the
accused to answer the charge at the stipulated time or
• Once the Petition is filed, primary duty of the Court is to see date.
whether the relief sought is provided under Criminal • Bail is liberty to the accused to remain at large till the
Procedure Code or not and If provided, the Petition shall be investigation, inquiry and trial is over. And to be given only
called in Public Court by assigning a particular miscellaneous in bailable offences. Section 437 of Cr.P.C. deals with non-
number and notices shall be ordered to the opposite party. bailable cases. When any person accused of, or suspected
Having heard both the parties, a speaking order has to be of, the commission of any non-bailable offence is arrested
pronounced. or detained without warrant or appears or is brought
before a Court such person may be released on bail by the
Court under section 437 (1) Cr.P.C.
• An “anticipatory bail” is granted by the High Court or a
Petition Memo Court of Session in non-bailable offence, to a person who
apprehends arrest for having committed a non-bailable
offence but has not yet been arrested (Section 438). An
• Memo is bringing a fact to • Petition is filed requiring opportunity of hearing must be given to the opposite
notice before a Court of some relief from the court party before granting anticipatory bail
Law • a notice to opposite party is
• No relief can be sought. No mandatory
order be passed on Memo.
CRIMINAL MISCELLANEOUS PETITION Index
Specimen Petition by Wife under section 125, Cr.P.C. 1973 for Maintenance
In the Court of ........ ... Judicial Magistrate 1st Class
Case No. ………… under s. 125, Cr.P.C.
Petitioner W (wife) Opposite Party H (husband)
Daughter of........... versus Son of...............................
Village .................... Village...............................
Thana .................... Thana ................................
Occupation............ Occupation........................
In the matter of petition for maintenance of petitioner W from the husband H under S.125, Cr.P.C.
The humble petition of W (wife), the petitioner above-named
Most respectfully Sheweth:
1. Your petitioner W is the married wife of the opposite party. The marriage between them was solemnized according to the Hindu rites on ……………
at
2. The opposite party H is a clerk on the staff of AB & Co. Ltd. holding a responsible position and drawing salary of Rs. 15,000 per month.
3. The opposite party severely assaulted the petitioner on .......... and drove her away from the matrimonial house on ............. in presence of several
gentlemen of the locality.
4. That the opposite party leads a life of drunkenness and debauchery. He is besides a man of uncertain temperament and would fly into rage in
season and out of season without any reason whatsoever. He has lost all sense of decorum and would use extremely filthy language.
5. Your petitioner after being driven out of the house by the opposite party came over to her father’s place on the same day and has been staying at
father’s house.
6. The opposite party was served with a pleader’s notice to send your petitioner Rs. ............................... every month for her maintenance but with
no result. Having regard to the violent temper of H and his inhuman way of beating your petitioner she does not venture to go back to the place of
the opposite party.
Your petitioner, therefore, prays that Your Honour may be pleased to issue notice on the opposite party and after taking evidence of both sides be
pleased to order the opposite party to pay the petitioner maintenance at the rate of Rs. ............................... per month. Remaining same like before.
Your petitioner, therefore, prays that Your Honour may be pleased to issue notice on the opposite party and after taking evidence of both sides be
pleased to order the opposite party to pay the petitioner maintenance at the rate of Rs. ............................... per month.
And your petitioner, as in duty bound, shall ever pray.
................... Petitioner
...................Through
Advocate AB
AFFIDAVIT
I, W daughter of MN resident at ……… do hereby solemnly affirm and say as following:
1. I am the petitioner above-named and I know the facts and circumstances of the case and I am able to depose thereto.
2. The statements in the paragraphs 1, 2, 3, 4, 5 and 6 of the foregoing petition are true to my knowledge and that I have not suppressed any
material fact.
Solemnly affirmed by the said
Mrs. W on the …….. day of ……. 20............... in the Court House at .......................................
Before me
Oath Commissioner / Notary / Magistrate.
Index
BAIL APPLICATION Index
Specimen Bail Application under Section 437, Cr.P.C. 1973
In the Court of............... Magistrate ......
................... State ...................
Versus
Accused AB son of TZ, Aged: ............. R/o ...................
Police Station: ............................................................
FIR No.: ............................................................
In the matter of petition for bail of accused AB, during police enquiry
The humble petition of AB the accused above-named
Most respectfully sheweth:
1. That your petitioner was arrested by the police on 5th March 20..... on mere suspicion. That nearly a month has passed after the arrest
but still the Investigating Police Officer has not submitted a charge-sheet.
2. That your petitioner was not identified by any inmate of the house of CM where the burglary is alleged to have taken place, nor was any
incriminating article found in his house. .
Your petitioner prays that your Honour may be pleased to call for police papers and after perusing the same be pleased to direct the
release of your petitioner on bail. And your petitioner, as in duty bound, shall ever pray.
................... Petitioner
...................
Through
Advocate AB
Index
BAIL APPLICATION… CONTINUATION
Verification
I, AB, son of TZ, residing at................ by occupation business, do hereby solemnly affirm and say as follows:
1. I am the petitioner above-named. I know and I have made myself acquainted with the facts and circumstances of the case and I am
able to depose thereto.
2. The statements in paragraphs 1 to 5 of the foregoing petition are true and correct to my knowledge and belief.
3. I sign this verification on the .................. day of .................. 20......
Solemnly affirmed by the said AB on ................................... at the Court
House at......................... AB
Before me
Oath Commissioner / Notary / Magistrate.
Index
FIR (FIRST INFORMATION REPORT)
Section 154 Cr.P.C 1973 deals with information in cognizable cases. Section 154 reads:
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced
to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in
such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under Sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in Sub-section (1)
may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such
information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by
any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of
the police station in relation to that offence.
In Lallan Chaudhary and Ors v. State of Bihar, AIR 2006 SC 3376, the Supreme Court held that section 154 of the Code thus casts a statutory duty
upon police officer to register the case, as disclosed in the complaint, and then to proceed with the investigation. The mandate of Section 154 is
manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has
no other option except to register the case on the basis of such information. Genuineness or credibility of the information is not a condition
precedent for registration of a case. That can only be considered after registration of the case. [Ramesh Kumari v. State (NCT of Delhi) and Ors,
2006 Cri.LJ 1622].
• Order VI Rule 11-Notice: wherever it is material to allege notice to any person of any fact, matter or thing, it shall be
sufficient to allege such notice as a fact unless the form or the precise terms of such notice or the circumstances from
which such notice is to be inferred, are material.
• Order VI Rule 12-Implied contract, or relation: wherever any contract or any rotation between any persons is to be
implied from a series of letter or circumstances, it shall be sufficient to allege such contract or relation as a fact, and
to refer generally to such letters conversations or circumstances without setting them out in detail.
• Order VI Rule 13-Presumptions of Law: neither party need in any pleading allege any matter of fact which the law
presumes in this favour or as to which the burden of proof lies up on the other side unless the same has first been
specially denied.
• Order VI Rule 14-Pleading to be signed: the pleading shall be signed by the party and his pleader (if any).
• Order VI Rule 15-Verification of Pleadings: Affidavit should also be enclosed with plaint. The court is bound to see
in every case that the pleadings are verified in the manner prescribed and that verifications are not mere formalities.
• Order VI Rule 17- 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.
• Order VII Rule 1. –Contents of Plaint
ORDERS AND RULES
• Order VII Rule 7-Relief to be specifically stated: Every plaint shall state specifically the relief which the plaintiff
claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may
always be given as the Court may think just to the same extent as if it had been asked for.
• Order VII Rule 14- Production of document on which plaintiff sues: All documents on which the plaintiff relies for
his claim should be enclosed with a separate List of Documents.
• Order VIII Rule 1-Written Statement: when a suit has been duly instituted, a summons may be issued to the
defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days
from the date of service of summons on that defendant.
• Order VIII Rule 5-Specific Denial: Every allegation of fact in the plaint, if not denied specifically or by necessary
implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as
against a person under disability
• Order VIII Rule 6-Particulars of set-off to be given in written statement: Any independent counter claims which is
not exactly set off but falls under some other statute which is not permitted to be pleaded by the courts but when the
.defendant files such counter claims, the written statements is treated as a plaint.
• Order XIX Rule 3-Matters to which affidavits shall be confined: An affidavit should be confined to such facts as the
depondent is able of his own knowledge to prove, except on interlocutory application, on which statements on his
belief may be admitted; provided that the grounds of such belief are stated.
Overview
CASE LAWS
• Ratti Lalv. Raghu AIR 1954 VP 53- Material facts are those facts which a plaintiff must allege in order to show a right
to sue or a defendant must allege in order to constitute his defence.
• It must be borne in mind that the denial has to be specific and not evasive. [1986 Rajdhani Law Reporter 213; AIR
1964 Patna 348 (DB), AIR 1962 MP 348 (DB); Dalvir Singh Dhilowal v. Kanwaljit Singh 2002 (1) Civil LJ 245 (P&H);
Badat & Co v. East India Trading Co. AIR 1964 SC 538]. However, general allegation in the plaint cannot be said to be
admitted because of general denial in written statement. [Union v. A. Pandurang, AIR 1962 SC 630.]
• If the plaint has raised a point/issue which is otherwise not admitted by the opposite party in the correspondence
exchanged, it is generally advisable to deny such point/issue and let the onus to prove that point be upon the
complainant. In reply, one has to submit the facts which are in the nature of defence and to be presented in a concise
manner. [Syed Dastagir v. T.R. Gopalakrishnan Setty 1999 (6) SCC 337.]
• The reply to each of the paras of the plaint be drafted and given in such a manner that no para of the plaint is left
unattended. The pleadings are foundations of a case. [Vinod Kumar v. Surjit Kumar, AIR 1987 SC 2179.]
• It may be noted that if the plaint or reply is not filed by a duly authorised person, the petition would be liable to be
dismissed [Nibro Ltd . v. National Insurance Co. Ltd., AIR 1991 Delhi 25; Raghuvir Paper Mills Ltd. v. India Securities
Ltd. 2000 Corporate Law Cases 1436]. However, at the time of filing of petition, if the pleadings are signed by a
person not authorised, the same could be ratified subsequently [United Bank of India v. Naresh Kumar, AIR 1997 SC
2.]
CASE LAWS
• It may be noted that if any of the important points is omitted from being given in the reply, it would be suicidal as there
is a limited provision for amendment of pleadings as provided in Order 6, Rule 17 CPC, and also the same cannot be
raised in the Affidavit-in-Evidence at the time of leading of evidence. Because if any point has not been pleaded in the
pleadings, no evidence could be led on that point. General rule is that no pleadings, no evidence. [Mrs. Om Prabha Jain
v. Abnash Chand Jain, AIR 1968 SC 1083; 1968 (3) SCR 111.]
• If a party is alleging fraud, undue influence or mis-representation, general allegations are insufficient even to amount to
an averment of fraud of which any court ought to take notice, however, strong the language in which they are couched
may be, and the same applies to undue influence or coercion. [Afsar Shaikh v. Soleman Bibi, AIR 1976, SC 163; 1976 (2)
SCC 142]. While pleading against fraud or misrepresentation, party must state the requisite particulars in the pleadings.
[K Kanakarathnam v. P Perumal, AIR 1994 Madras 247.]
• In every pleading, one must state specifically the relief which the party is claiming from the court or tribunal or forum.
While framing the prayer clause, one should claim all possible relief as would be permissible under the pleadings and the
law [Order 7, Rule 7 CPC]. The general principle is that the relief if not prayed for, will not be allowed. [R Tiwary v. B
Prasad, AIR 2002 SC 136.]
• No order to be passed on Memo (Held in a decision held in between Syed Yousuf Ali Vs. Mohd. Yousuf and Others
reported in 2016 (3) ALD 235)
MYSELF
Who am I?
This is Monika. Just want to give a disclaimer that I am neither a Faculty nor a founder or member of any
Education Institute. I am a student just like you people.
Why am I here?
I am here to help CS students struggling with these theory subjects running into hundreds of pages. Also to help
people who study other courses also and do not have enough time to take classes. These are my first notes and I am
going to make for other chapters also. These notes cover almost all the important points of the Pleading Chapter.