Pleading and Drafting, Lecture notes of Law

Download Pleading and Drafting and more Lecture notes Law in PDF only on Docsity! LESSON NO 1&2 ON PLEADING, DRAFTING AND CONVEYENCING [LLB 6 TH SEMESTER-2016] PLEADINGS AN OVERVIEW Drafting and Conveyancing: In law as practiced in countries that follow the English models, a pleading is a formal written statement of a party's claims or defenses to another party's claims in a civil action. The parties' pleadings in a case define the issues to be adjudicated in the action. Drafting may be defined as synthesis of law and facts in a language form. The essence of drafting is, therefore, crystallization and expression in definite form of legal right privileges function, duty or status. Drafting, in legal sense, means an act of preparing the legal documents like agreements, deeds etc. Pre-requisites of drafting of legal documents are the skills of draftsman, the knowledge of facts. A proper understanding of drafting cannot be realised unless the nexus between the law, the facts and the language is fully understood and accepted to give a correct presentation of legal status, privileges, rights and duties of parties, and obligations arising out of mutual understanding or prevalent customs or usages or social norms or business conventions, as the case may be, terms and conditions, breaches and remedies etc. in a self- contained and self-explanatory form without any patent or latent ambiguity or doubtful connotation. Thus, conveyance is an act of conveyancing or transferring any property whether movable or immovable from one person to another permitted by customs, conventions and law within the legal structure of the country. In the United States, a complaint is the first pleading filed by a plaintiff which initiates a lawsuit. A complaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief and sometimes a statement of damages claimed (an ad quod damnum clause). In some situations, a complaint is called apetition, in which case the party filing it is called the petitioner and the other party is the respondent. In equity, sometimes called chancery, the initial pleading may be called either a petition or a bill of complaint in chancery. In England and Wales, the first pleading is a Claim Form, issued under either Part 7 or Part 8 of the Civil Procedure Rules, which sets out the nature of the action and the relief sought, and may give brief particulars of the claim. When used in civil proceedings in England and Wales, the term "complaint" refers to the mechanism by which civil proceedings are instituted in the magistrates' court [1] and may be either written or oral. A demurrer is a pleading (usually filed by a defendant) which objects to the legal sufficiency of the opponent's pleading (usually a complaint) and demands that the court rule immediately about whether the pleading is legally adequate before the party must plead on the merits in response. Since demurrer procedure required an immediate ruling like a motion, many common law jurisdictions therefore went to a narrower understanding of pleadings as framing the issues in a case but not being motions in and of themselves, and replaced the demurrer with the motion to dismiss for failure to state a cause of action or the application to strike out particulars of claim. An answer is a pleading filed by a defendant which admits or denies the specific allegations set forth in a complaint and constitutes a general appearance by a defendant. In England and Wales, the equivalent pleading is called a Defence. [2] A defendant may also file a cross-complaint against another defendant named by the plaintiff, and may also file a third-party complaint bring other parties into a case by the process of impleader. A defendant may file a counter-claim to raise a cause of action to defend, reduce or set off the claim of the plaintiff. Common law pleading was the system of civil procedure used in England, which early on developed a strong emphasis on the form of action rather than the cause of action (as a result of the Provisions of Oxford, which severely limited the evolution of the common law writ system). The emphasis was on procedure over substance. PLEADINGS IN INDIA The present day system of pleadings in our country is based on the provisions of the Civil Procedure Code, 1908 supplemented from time to time by rules in that behalf by High Courts of the States. There are rules of the Supreme Court and rules by special enactments as well. For one, words ‘plaints’ and ‘complaints’ are nearly synonymous. In both, the expression of grievance is predominant. Verily, when a suitor files a statement of grievance he is the plaintiff and he files a ‘complaint’ containing allegations and claims remedy. As days passed, we have taken up the word ‘Plaint’ for the Civil Court and the word ‘Complaint’ for the Criminal Court. Order 6, R. 1 of Civil Procedure Code (C.P.C.) defines ‘pleading’. It means either a plaint or a written statement.’ With the passing of time written pleadings supplanted archaic oral pleadings. When reduced to writing the scope of confusion, for obvious reasons, was made narrower. In this we find the object of a pleading which aims at ascertaining precisely the points for contention of the parties to a suit. The rules of pleading and other ancillary rules contained in the Code of Civil Procedure have one main object in view. It is to find out and narrow down the controversy between the parties. The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them. Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take (Ganesh Trading v. Motiram, AIR 1970 SC 480). Necessarily, a pleading is accurate material fact which may subsequently be found to be so material as to decide the fate of the case this or that way. (ii) Not law: In a pleading, there is no scope of pleading a provision of law or conclusion of law. It is the intention 286 PP-DA&P of the framers of the Code that a pleading should state facts, and the position as in law shall be inferred if such facts are capable of raising any legal inference. The pleading should present facts in such a way that those would irresistibly and spontaneously draw a legal inference. Herein lies the art of pleading. To find out the law is the duty of the court. Legal effects are not to be stated by the party. In India, as in England, the duty of a pleader is to set out the facts upon which he relies and not the legal inference to be drawn from them. Likewise the conclusion of law or a mixed question of law and fact should not be pleaded. (iii)Not evidence: In like manner evidence has to be avoided in pleadings. We have noticed the wording of the rule of O. 6, R. 2 to wit, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be but not the evidence by which they are to be proved. A pleading should not contain facts which are merely evidence to prove the material facts. (iv) Immaterial facts to be discarded: Unnecessary details are the facts which are not material and, therefore, should be discarded. (v) Deficiency in pleading: Parties are related to each other and know everything. No element of surprise has been caused to the other party. Parties understood the case and led evidence accordingly. Deficiency in pleading would not affect case of the plaintiff [Kailash Chandra v. Vinod, AIR 1994 NOC 267 (MP)]. PLAINT STRUCTURE A suit is instituted by filing a plaint, which is the first pleading in a civil suit. It is a statement of the plaintiff’s claim and its object is simply to state the grounds upon, and the relief in respect of which he seeks the assistance of the court. Order VII of the Civil Procedure Code,1908 deals with plaint. As per Order VII, R.1 CPC, every plaint must contain the following things: (a) The name of the Court in which the suit is brought; (b) The name, description and place of residence of the plaintiff; (c) The name, description and place of residence of the defendant, so far as they can be ascertained; (d) Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect; (e) the facts constituting the cause of action and when it arose; (f) The facts showing that the Court has jurisdiction; (g) The relief which the plaintiff claims; (h) Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and (i) A statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits. Where the plaintiff seeks the recovery of money, the plaint must state the precise amount claimed. But where the plaintiff sue for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, or for movables in the possession of the defendant, or for debts of which the value he cannot, after the exercise of reasonable diligence, estimate, the plaint shall state approximately the amount or value sued for. [R.2] If the subject-matter of the suit is immovable property, the plaint must contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint must specify such boundaries or numbers. [R.3] When plaintiff sues as representative: As per Rule 4 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 (if any) necessary to enable him to institute a suit concerning it. Defendant’s interest and liability to be shown: The plaint must show that the defendant is or claims to be interested in subject-matter, and that he is liable to be called upon to answer the plaintiffs demand. [R.5] Grounds of exemption from limitation law: In case the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint must show the ground upon which exemption from such law is claimed. The Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint. [R.6] Relief to be specifically stated: Rule 7 says that 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. And the same rule shall apply to any relief claimed by the defendant in his written statement. Relief founded on separate ground: If the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and district grounds, they shall be stated as far as may be separately and distinctly. [R.8] DESCRIPTION OF PARTIES The description of parties in a plaint has had the only object of securing correct identification of the party suing and the party sued. There cannot be, for obvious reasons, any dogmatic rules as to what would constitute a proper description. It differs in varying circumstances. Generally speaking, father’s name, occupation and caste are sufficient description of an individual. It may include the age. When the description is defective, it is a case of misdescription. Misdescription of parties can be corrected at any stage. In a suit by a joint family firm, the suit was instituted in the firm name. Amendment seeking addition of individual partners can be allowed as the case is one of misdescription. X suing as proprietor of ‘Todi Financing Corporation’— amendment sought by describing ‘X’ as partner of the Corporation and by impleading the retired partner as defendant should be allowed. (AIR 1979 Cal. 10) To sum up, if, however, imperfectly and incorrectly a party is designated in a plaint, the correction of the error is not the addition or substitution of the party but merely clarifies and makes apparent what was previously shrouded in obscurity by reason of the error or mistake. The question in such a case is one of the intention of the party and if the court is able to discover the person or persons intended to sue or to be sued a mere misdescription of such a party can always be corrected provided the mistake was bona fide. WRITTEN STATEMENT It is incumbent on the defendant to file his defence in writing. If the defendant fails to file written statement, the court may pronounce judgment against him or may under O. 8, R. 10, make such order in relation to the suit as it deems fit. If the defendant has omitted to avail of his right to file a written statement at or before the first hearing, the court can extend the time for filing it, in exercise of its discretion, if the circumstances so warrant. The rule has to be worked in a manner so as to advance justice (Mehar Chand v. Suraj Bhan, AIR 1971 Punj 435). He can take such different defences either jointly or alternatively, even if such defenses are inconsistent. But certain inconsistent pleas such as those which depend for their proof, on entirely contradictory facts, are generally not tenable. A ground of defence, which has arisen to the defendant even after the institution of the suit, but before the filing of his written statement, may also be raised (O.8, R.8). All defences which are permissible should be taken in the first instance, for, if the defendant does not take any plea, he may not be allowed to advance it at a later stage, particularly when it involves a question of fact. How to Draft a Written Statement When the defendant relies on several distinct grounds of defence or set off, founded upon separate and distinct facts, they should be stated in separate paragraphs (O.8, R.7), 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 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.” When it is intended to take several defences in the same written statement, the different kinds of defences should be separately written. It is convenient to adopt the following order for the several pleas: (i) Denials. (ii) Dilatory pleas. (iii)Objections in point of law. (iv) Special defence (pleas in confession and avoidance). (v) Set off. 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 a defendant wishes to add an affirmative statement of his own version to the denial of a plaint allegation, or to add anything in order to explain his admission or denial, it is better and more convenient to allege the additional facts along with the admissions or denial, than to reserve them until after the admissions or denials have been recorded. If there are some defences which are applicable to the whole case and others which apply only to a part of the claim, the former should preferably be pleaded before the latter. Drafting of Reply/Written Statement – Important Considerations At the time of drafting the reply or written statement, one has to keep the following points in mind:- (i) One has to deny the averment of the plaint/petition which are incorrect, perverse or false. In case, averment contained in any para of the plaint are not denied specifically, it is presumed to have been admitted by the other party by virtue of the provisions of Order 8, Rule 5 of the Code of Civil Procedure. It must be borne in mind that the denial has to be specific and not evasive (Order 8, Rule 3 & 4 CPC) [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.] (ii) 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.] (iii)Attach relevant correspondence, invoice, challan, documents, extracts of books of accounts or relevant papers as annexures while reply is drafted to a particular para of the plaint; (iv) 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.] (v) After reply, the same is to be signed by the constituted attorney of the opposite party. If the opposite party is an individual, it could be signed by him or his constituted attorney or if the opposite party is a partnership firm, the same should be signed by a partner who is duly authorised under the Partnership Deed, because no partner has an implied authority to sign pleadings on behalf of the partnership firm by virtue of Section 22 of the Indian Partnership Act, 1932. In case of a body corporate, the same could be signed by any Director, Company Secretary, Vice-President, General Manger or Manager who is duly authorised by the Board of Directors of the company because any of the aforesaid persons per se are not entitled to sign pleadings on behalf of the body corporate. [Order 29 of Code of Civil Procedure.] 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.] (vi) The reply/written statement is to be supported by an Affidavit of the opposite party. Likewise, the Affidavit will be sworn by any of the persons aforesaid and duly notorised by an Oath Commissioner. The Affidavit has to be properly drawn and if the affidavit is not properly drawn or attested, the same cannot be read and the petition could be dismissed summarily. [Order 6, Rule 15 CPC]. 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. (vii) The reply alongwith all annexures should be duly page numbered and be filed alongwith authority letter if not previously filed. (viii) At the time of filing of reply, attach all the supporting papers, documents, documentary evidence, copies of annual accounts or its relevant extracts, invoices, extracts of registers, documents and other relevant papers. (ix) 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.] (x) 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 mis-representation, party must state the requisite particulars in the pleadings. [K Kanakarathnam v. P Perumal, AIR 1994 Madras 247.] (xi) It is well settled that neither party need in any pleadings 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. [Order 6, Rule 13 CPC; Sections 79 and 90 of Indian Evidence Act.] (xii) 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.] INTERLOCUTORY APPLICATION “Interlocutory” means not that decides the cause but which only settles some intervening matter relating to the cause. After the suit is instituted by the plaintiff and before it is finally disposed off, the court may make interlocutory orders as may appear to the court to be just and convenient. The power to grant Interlocutory orders can be traced to Section 94 of C.P.C. Section 94 summarises general powers of a civil court in regard to different types of Interlocutory orders. The old style of drafting of documents of the Eighteenth Century has given way for comprehensiveness, exactitude and clarity of expressions. “ The particular qualities that distinguish the modern style of drafting – the use of definitions, division into numbered paragraphs and sub-paragraphs with marginal notes, the growing disuse of the form ‘shall’ in stating circumstances and conditions, the use of one word (as ‘convey’ or ‘assign’) for the jumble (grant, bargain, sell, alienate, release, confirm and enforce or bargain, sell, assign, transfer, set-off and confirm) that had often previously been necessary or thought to be so are to be found in any current set of precedents.”- E.L Piesse & Gilchrist Smith: The Elements of Drafting. Drafting will be done of documents. Therefore it is essential to first elaborate the meaning of documents and the provisions in India relating to registration and stamping of documents. II. Documents Ordinarily the word "document" denotes a textual record. Increasingly sophisticated attempts to provide access to the rapidly growing quantity of available documents raised questions about which should be considered a "document". Meaning of Document The term "Document" has not been defined under the Registration Act, 1908. The object clause of the Registration Act, 1908 merely states that the Act was promulgated to consolidate the enactments relating to the registration of documents. Two Acts refer to the word "Document" in very similar terms: 1. Section 3 of the Indian Evidence Act, 1872 states that a "Document" means any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used or which may be used, for the purpose of recording that matter. Writing is a document; Words printed, lithographed or photographed are document; A map or plan is a document; An inscription on a metal plate or stone is a document; A caricature is a document. 2. Section 3 (18) of the General Clauses Act, 1897, states that a "Document" shall include any matter written, expressed or described upon any substance by means of letters, figures, or marks or by more than one of those means, which is intended to be used or which may be used for the purpose of recording that matter. Thus the word "Document” has been used in a wide sense, and it includes instruments, deeds, agreements etc. Documents will also include Electronic records. As per Section 3 of the Indian Evidence Act, 1872, - “Evidence" means and includes - (1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence. (2) All documents produced for the inspection of the Court; such documents are called documentary evidence. Documentary Evidence is an important piece of evidence of which the Court, Jury and Tribunal take judicial cognizance. It is therefore imperative that the document is drafted with utmost precision and application of mind. As per section 2(r) of the Information Technology Act,2000 - "electronic form" with reference to information means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device. As per section 92 of the Information Technology Act, 2000, the Indian Evidence Act, 1872 shall be amended in the manner specified in the Second Schedule to this Act. As per the Second Schedule to the Information Technology Act,2000, (a) in the definition of "Evidence", for the words "all documents produced for the inspection of the Court", the words "all documents including electronic records produced for the inspection of the Court" shall be substituted; Distinction between drafting and conveyancing: Both the terms "drafting and conveyancing" provide the same meaning although these terms are not interchangeable. Conveyancing gives more stress on documentation much concerned with the transfer of property from one person to another, whereas "drafting" gives a general meaning synonymous to preparation or drafting of documents, Documents may include document relating to transfer of property as well as other "documents" in a sense as per definition given in Section 3 (18) of the General Clauses Act, 1897 which include any matter written, expressed or described upon any substance by means of letters figures or mark, which is intended to be used for the purpose of recording that matter. For example, for a banker the document would mean loan agreement, deed of mortgage, charge pledge, guarantee, etc. For a businessman document would mean something as demanded under Section 2(4) of the Indian Sale of Goods Act, 1930 so as to include a document of title to goods i.e. "Bill of lading, dock warrant, warehouse- [Chapter # 1] General Principles of Drafting-I Q&A-2.17 keepers certificate, wharfingers certificate, railway receipt multi model transport document warrant or order for the delivery of goods and any other document used in ordinary course of business as proof of the possession or control of goods or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented". The Companies Act, 1956 defines vide Section 2(15) the term "document" in still wider concept so as to include "summons, requisitions order, other legal process, and registers, whether issued, sent or kept in pursuance of this or any other Act, or otherwise". Thus, drafting may cover all types of documents in business usages. In India, the commercial houses banks and financial institutions have been using the term "documentation". In substitution of the words "drafting and conveyancing". Documentation refers to the activity which symbolises preparation of documents including finalization and execution thereof. Deed : The term deed connects all the instruments by which two or more persons agree to effect any right or liability. A deed may be defined as a formal writing of a non-testamentary character, which purports and operates to create, declare, confirm, assign, limit or extinguish some right, title or interest. A deed is a present grant rather than a mere promise to be performed in the future. Deeds are in writing, signed, sealed and delivered. Deeds are instruments , but all instruments are not deeds. All deeds are documents. But it is not always that all documents are deeds. A document under seal may not be a deed if it remains undelivered e.g., a will, an award, a certificate of admission to a learned society, a certificate of shares or stocks, and share warrant to bearer, an agreement signed by directors and sealed with the company’s seal, license to use a patented article or letters of coordination. Explain in detail the general principles of drafting and conveyancing and other writings. Drafting of legal documents requires skill, At the very first instance, the names, description and the addresses of the parties to the instrument must be ascertained by a draftsman. He must obtain particulars about all necessary matters which are required to form part of the instrument. He must also note down with provision any particular directions or stipulations which are to be kept in view and to be incorporated in the instrument. The duty of a draftsman is to express the intention of the parties clearly and concisely in technical language. With this end in view , he should first form a clear idea of what these intentions are. A corporate executive, therefore, must note down the most important requirements of law which must be fulfilled while drafting complete instrument on the subject. Knowledge of law of the land in general and knowledge of the special enactments applicable in a particular situation is an essential requirement for a draftsman to ensure that the provisions of the applicable law are not violated or avoided. A limited company can do only that much which it is authorised by its memorandum. Further, a company being a legal entity, must necessarily act through its authorised agents. A deed, therefore, should be executed by a person duly authorised by the directors by their resolution or by their power of attorney. It is also to be ensured that the format of documents adopted adheres to the customs and conventions in vogue in the business community or in the ordinary course of legal transactions. For any change in the form of such document, use of juridical and technical language should invariably be followed. The statements of negatives should generally be avoided. The order of the draft should be strictly logical. Legal language should be, to the utmost possible extent, precise and accurate. The draft must be readily intelligible to layman. Document should be supported by the schedules enclosures or annexure in case any reference to such material has been made in that.