DRAFTS, PLEADINGS & CONVEYANCING

Q.1. What do you mean by pleading? Discuss its fundamental rules.

Pleading in Judiciary

“Pleading” refers to the formal written statements submitted by each

party in a case, outlining their contentions and providing all necessary
details for their opponent to prepare their case. It’s a crucial part of the
judicial process, serving as the foundation of litigation.

In a civil suit, there are two main types of pleadings:

1. Plaint: This is the plaintiff’s pleading, a statement of claim where

the plaintiff outlines their cause of action with all necessary details.
2. Written Statement: This is the defendant’s pleading, a defense
where the defendant addresses every allegation made by the
plaintiff in the plaint.

Fundamental Rules of Pleading

The fundamental rules of pleading, as outlined in Order 6 of the Code of

Civil Procedure, 1908, are:

1.State Facts, Not Law: Pleadings should only state facts, not the law.
The first fundamental principle of pleadings is that they should only
state facts and not the law.

In the case of Kedar Lal v. Hari Lal, the court held that it is the duty of
the parties to state only the facts on which they rely upon for their
claims. The court further said that it is the duty of the court to apply the
law to the facts pleaded.

The court in Gouri Dutt Ganesh Lall Firm v. Madho Prasad,

summarised the law of pleading in just four words, “Plead facts not
Law”

Therefore, a custom or usage is a question of fact which must be

specifically pleaded, also intention is a question of fact and it must be
pleaded. Similarly, waiver or negligence is a plea of fact which must be
mentioned in the pleading. However, a plea about maintainability of a
suit raises a question of law and thus need not be pleaded.

In Ram Prasad v. State of Madhya Pradesh, it was held that a mixed

question of law and fact however should be specifically pleaded.

In Union of India v. Sita Ram Jaiswal, the court held that a point of law
which is required to be supported by facts should be pleaded with
necessary facts.

2.Material Facts Only: Only material facts should be stated in

pleadings. The second principle of pleadings is that they should contain
a statement of material facts only. However, the term “material facts”
has not been defined in the code.

The Supreme Court in Udhav Singh v. Madhav Rao Scindia, has

defined material facts as, all the primary fact which needs to be proven
at the trial by a party to establish the existence of a cause of action or
his defence are material facts.

It has been observed by the courts that what type of facts or information
would amount to material fact is a subjective issue and depends on the
circumstances of a case and thus differs from case to case.

3.The Pleadings should state facts and not evidence : Pleadings

should state the facts, not the evidence required to prove those facts.
The third fundamental rule of pleadings says that in pleadings,
evidence of facts distinguished from the facts itself need not be
pleaded. In other words, the pleadings should contain a statement of
material fact on which a party relies but not the evidence by which such
facts are to be proved.

Facts are of two types:

o Facta Probanda: The facts required to be proven (material facts)

o Facta Probantia: The facts by means of which they are to be

proved (particulars or evidence)

The pleadings should only contain the Facta Probanda or the material
facts of the case. The material facts on which the plaintiff relies for his
claim or the defendant relies on for his defence is called the Facta
Probanda. The Facta Probanda must be mentioned in the plaint or
written statement. However, the evidence by means of which the
material facts are to be proved which is known as Facta Probantia need
not be stated in pleadings. They are not the fact in issue but only are the
relevant facts which required to be proved at the trial in order to establish
the fact of the issue.

4.The Pleading should be Concise: The facts in pleadings should be

stated in a concise but certain manner. The fourth and the last
fundamental rule of pleadings states that pleadings should be drafted
with sufficient brevity and they should also be precise.

In Virendra Kashinath v. Vinayak N. Joshi, the court observed that

pleadings should be brief and concise, also niggling should be avoided.
However, that does not amount to the fact that essential facts need to
be omitted or missed in an attempt to get brevity in pleadings.

Every pleading should be divided into paragraphs and sub paragraphs.

Each allegation should be contained in separate paragraph. Dates,
totals and numbers should be mentioned in figures as well as in words.

These rules ensure that the issues are clearly defined, and each party
understands the claims and defenses of the other, thereby promoting
fairness and efficiency in the judicial process.

Q.2. What do you mean by deed? Discuss in brief its components.

In the context of judiciary, a deed is a legal instrument that confirms and

transfers an interest, right, or property from one person to another. It’s a
written document that is signed and delivered, and it can be used to
create, affirm, confirm, assign, restrict, or end some right, title, or
interest. The most common application of deeds is to transfer property
ownership, either movable or immovable, between two parties.

The key components of a deed are:

1. Heading of Document: It should mention the title of the deed.

2. Description of the deed title: The deed must contain the
accurate title, i.e. “This Deed of Partnership” or “This Deed of
Sale”.
3. Date and place of execution: The execution date of the deed,
which is relevant for the applicability of the law, maturity period,
registration, and transfer of title.
 4. Name and Description of the parties: Name and details such as
age, address, etc. of all the parties and inter-parties, concerned
should be stated in the document.
5. Recitals: It includes the precise story of the property to the point, it
is bestowed to the transferors.
6. Description of Property: Full description of the property needs to
be provided in the document, presented for registration.
7. Terms and Conditions: It specifies the general and special
arrangements, rules, requirements, specifications, etc.
8. Exceptions and Reservations: It implies the introduction of
specific rights to be held by the transferor over the property to be
agreed by the transferee.
9. Covenants and Undertakings: It alludes to the agreement under
seal, by which the parties concerned, promises for the truth of the
certain fact.

10.Signature of the Parties and Witness: After attestation, the

signature of the parties and their witnesses need to follow.

11. Annexure or Schedule- A deed is incomplete unless the

particulars required by the registration law concerning the land or
property are provided in the Schedule to be attached with the deed.

CONCLUSION: A deed is any written legal document that transfers,

affirms, or confirms the interest, rights, property, and so on. A valid deed
is which that requires the grantor, the actual owner of the land conveys
his interest to the guarantee, the receiver of the title.

Q.3. What do you understand by cause of action?

In the context of judiciary, a “cause of action” refers to a set of facts or

circumstances that give rise to a legal right to seek a remedy. It is
essentially a bundle of facts which, if proven, would allow a person to
establish their legal rights against another.

The cause of action is the foundation of any legal suit. It is the reason
why a plaintiff brings a lawsuit against a defendant. If any person’s
constitutional rights are violated due to certain circumstances, they can
defend their right by showing how their lawful right has been harmed.
In the law of Civil Procedure Code 1908, the legal terms of the cause of
action are specified in different ways. But the word “cause of action” is
not specified either in the Code of Civil Procedure or elsewhere.

The legal meaning of the cause of action is that the plaintiff has the right
to take legal action against another person on the basis of the facts. A
plaintiff can thus secure his constitutional right by bringing a lawsuit
against the defendant underlying it.

According to the case of Om Prakash Srivastava v. Union of India

and Anr. (2006 6 SCC 207), the Supreme Court noted that “Cause of
action” means, in the restricted sense, the circumstances which
constitute a infringement of the right or the immediate cause for the
reaction.

In the case of Bloom Dekor Ltd. v. Subhash Himatlal Desai and Ors.
(1994 (6) SCC 322), the Supreme Court held that “cause of action”
applies to all facts which, if present, would enable the plaintiff to show
support for his right to a Court judgment.

In a broader sense, a cause of action is the legal right on which a

claimant sues. A cause of action is a label for a type of facts which will
justify a court award a legal remedy.

In summary, a cause of action is a crucial element in any legal

proceeding, as it outlines the reasons for which a plaintiff seeks judicial
remedy against a defendant.

Q.4. What do you mean by attestation?

In the context of judiciary, attestation refers to the act of witnessing

certain events or facts and validating them by signing a document. This
is often done to confirm that the actions or events described in the
document were carried out with the free will of the parties involved.

The concept of attestation is defined in Section 3 of the Transfer of

Property Act, 1882. According to this definition, there are two essential
conditions for a valid attestation:

1. Two or more witnesses have seen the executant sign the

instrument or have received from him a personal
acknowledgement of his signature.
 2. Each of these witnesses has signed the instrument in the presence
of the executant, with the intent to attest or bear witness to the
fact.
3. It’s important to note that the witnesses need not read the entire
document being attested. They can be called to court to prove that
the transfer was valid, but there is no need to call all the witnesses;
at least one person can be called to court as a witness to show the
sanctity of the transfer.

Conclusion:

The Indian provision of transfer of property relating to attestation is

adopted from British law, but due to the amendments passed in
India, the provision has a wider application in India. The
amendment has done away with the requirement of executor being
there at the time of signing of the document. Thus it has a wider
application.
Attestation does not refer to the mere signing of the document to
attest it but a valid attestation requires the intention to attest. This
is also called animo attestandi. There are numerous cases which
have explained the applicability of this term, and the understanding
is that an individual can give a valid attestation if she, at the time of
affixing mark, intended to be a witness to the fact of execution of
the document and was aware that the document was executed
without any undue influence or coercion on the executant.

Q.5. What do you mean by plaintiff?

In the judiciary context, a plaintiff is the party who initiates a lawsuit by

filing a complaint with the court against the defendant(s). The plaintiff
seeks a legal remedy, and if successful, the court will issue judgment in
favour of the plaintiff and make the appropriate court order.

In civil cases, a plaintiff is the person or group of persons who is

accusing another person or group of persons for some wrongdoing. The
plaintiff files the lawsuit and is responsible for filing a complaint in the
court, which contains the factual and legal basis for the plaintiff’s claim.

The term “plaintiff” can apply to different parties depending on the

context of the case:
  Individual plaintiffs: Individuals who have been wronged or
injured.
 Corporate plaintiffs: Companies or corporations seeking legal
remedies.
 Government plaintiffs: Government entities filing a lawsuit.
 Nonprofit organizations and advocacy groups: These groups
can also be plaintiffs if they have a direct interest in the case.
 Class action plaintiffs: In a class action lawsuit, a group of
people with the same or similar injuries caused by the same
product or action sue the defendant as a group.

It’s important to note that the burden of proof lies on the plaintiff as they
are the one to file the complaint. However, the defendant also has a right
to file a counter complaint against the plaintiff, in which case the plaintiff
becomes the counter defendant and the defendant becomes the counter
plaintiff. In this case, the burden of proof lies on the defendant.

Q.6. What is a Draft in judiciary and the rules for drafting.

In the context of judiciary, a draft refers to a preliminary version or an

outline of a legal document that is being prepared. It serves as a working
document from which a final version will be derived. Drafting, in simple
terms, 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.

The process of drafting generally follows these steps:

1. The first draft: Aims at the comprehensiveness and fullness of the

facts.
2. The second draft: Aims at improving the first draft by correcting
the form and the language.
3. The final draft: Gives a final touch to make the document
authoritative and convincing.

The rules for drafting in judiciary are:

1. Before making a draft, a design of it should first be conceived.

2. Make sure that none of the facts are omitted or admitted at
random.
3. Negative statements should generally be avoided.
4. Technical language should be followed.
 5. The legal language employed should be precise and accurate.
6. The draft should be readily intelligible.

Drafting demands a lot of skills combined with patience from the

advocates. A properly drafted document aims at accuracy and truth. It’s
an art that can be acquired only by long practice.

Q.7. What do you mean by interlocutory orders?

An interlocutory order is a provisional or temporary order issued by a

court during the progress of a case but before a final judgment is
pronounced. It does not finally dispose of the case but rather deals with
specific issues or matters that require immediate attention.

In the context of civil procedure, an interlocutory application is an

application to the Court in any suit, appeal, or proceeding already
instituted in such Court, other than a proceeding for execution of a
decree or order. The orders which are passed in those applications are
called as interlocutory orders.

Interlocutory orders can be used to protect the rights and the interests of
all people involved and to ensure the legal process. They are often used
to meet the ends of justice and to render timely justice to the parties.

For example, under the Code of Civil Procedure, 1908, interlocutory

orders can include applications for appointment of Commissioner,
Temporary Injunctions, Receivers, payment into court, security for
cause, and etc.

Please note that the court must give notice to the opposite party before
making any interlocutory order. If a delay occurs in imparting justice to
the party by serving a prior notice, then the interlocutory order can still
be passed without serving the notice.

Q.8. What do you mean by Deed Poll and deed indenture?

In the context of Indian judiciary:

 Deed Poll: A Deed Poll is a document which is executed

unilaterally in the first person. It is a special type of binding
 agreement which only requires one party and works to bind that
party to an active intention.

Examples of Deed Polls include bonds, power of attorney, and

wills. The term “poll” is an archaic legal term referring to
documents with straight edges.

 Indenture: An Indenture is a document which is executed

bilaterally or consists of a multilateral deed. It is a legal contract
that records a contract between two or more parties.

Examples of Indentures include mortgages, sale deeds, gifts,

and leases. The term “indenture” comes from the practice of
indenting or cutting a document with a wavy or indented line at the
top.

Both Deed Poll and Indenture are types of deeds used in conveyancing,
which refers to the transferring of real property to its new owner by
means of deeds.

Q.9. What do you mean by a Codicil?

A Codicil is an amendment to an existing will, used to add or remove
something. It’s a legal instrument made to modify an earlier will. It can
alter, change, add to, or subtract from the provisions in the will.

Codicils are often used to add or revoke certain provisions of an existing

will. These changes may include adding or deleting gifts, or changing the
named personal representative. All of the legal requirements for making
an original will apply to the creation of codicils.

In order for a person to create a will or a codicil, he or she must be

mentally competent. A codicil must contain the signature of the testator,
as well as the signatures of two or three witnesses who are not parties to
the will. These strict signature requirements are for the purpose of
preventing unauthorized people from making changes to a will.

When a codicil to a will is created, it should be placed with the original

document. Filing a will and any codicils with the local probate court may
help eliminate confusion in the future, but it is not required.
Q.10. What is ex-parte decree?
An ex-parte decree is a court ruling made in favour of one party when
the other party is not present or has not had a chance to participate in
the proceedings. This usually occurs when the defendant does not
appear in court on the day of the hearing specified in the summons that
was issued to them in compliance with the Code’s rules.

The court can pass an ex-parte decree under Order 9 Rule 6 of the
Code of Civil Procedure (CPC) if the defendant does not appear before
the court despite having summons served on them. However, if the
summons is not duly served, the court will issue another summons to the
defendant.

An ex-parte order can be set aside by the party it was made against by
making an application per order 9 rule 13 to the court that issued the
order. The applicant needs to provide valid grounds for reversing the ex-
parte order.

Q.11. What do you mean by legal representative?

A “legal representative” in the judiciary context refers to a person who, in

law, represents the estate of a deceased person12. This term is defined
under Section 2 (11) of the Civil Procedure Code (CPC) in India.

The definition is broad and inclusive, not limited to legal heirs. It can
refer to any person who may or may not be an heir, who is eligible to
inherit the deceased’s estate but who must represent the deceased’s
estate. This includes all heirs and individuals holding the assets either
without ownership, even as executors or administrators of the
deceased’s estate.

In essence, a legal representative is a person who has the legal

authority to act on behalf of another, particularly in managing their
property or interests. This can also include a person appointed by the
court to act on behalf of a participant or tenant, or a person acting
pursuant to a power of attorney.

Key Takeaways:
A legal representative, as defined by section 2(11) of the C.P.C., is a
person in law who represents the estate of a deceased person.
The representative who can be sued for executing the decree in a suit is
defined in Section 50 of the Civil Procedure Code of 1908.
The term "legal representative" has the meaning assigned to it in clause
(11) of section 2 of the Code of Civil Procedure, 1908, according to
section 2(29) of the Income-tax Act of 1961.
Sections 397 and 398 of the Companies Act of 1956 address the issue
of bringing legal representatives of a deceased party into a proceeding.

Q.12. Who can be a Legal Representative?

Anyone can act as a representative for a deceased person's estate.
There is no provision for a legal representative to receive a deceased
person's property; however, if a person receives any part of the property
through a will, he may be eligible to act as a legal representative for his
estate.
The Supreme Court held in Andhra Banks Ltd. v. R. Srinivasan and ors.
(1962 AIR 232) that a legal representative is a "person representing the
estate of the deceased" in law. However, the estate does not necessarily
mean the entire estate. A legatee who receives only a portion of the
deceased's estate under a will can be said to represent the deceased's
estate and thus be a legal representative under section 2(11) C.P.C.

Q.13. How can a plaint be amended?

The amendment of a plaint in the Indian judiciary is governed by Order 6

Rule 17 of the Code of Civil Procedure (CPC). Here’s a step-by-step
process:

1. Application: The plaintiff or defendant who wants to amend their

pleadings writes an application for the amendment of pleadings to
the concerned civil court.
2. Submission: After drafting the application, the applicant needs to
produce the application before the concerned civil judge.
3. Court’s Decision: The Civil Judge will grant Order VI Rule 17 if
they find that such amendments may be instrumental for
determining the matter in question.
It’s important to note that the court may allow amendments at any stage
of the proceedings in such a manner and on such terms as may be just.
However, the amendments should not cause harm to the other party and
should follow the time limits set by the court. The purpose of amending
pleadings is to ensure that the real issues in the case are addressed and
that justice is served.

Q.14. What is interpleaded suit?

An interpleader suit is a legal action initiated by a person or entity

holding property, funds, or assets that are claimed by two or more
conflicting parties. This type of suit is covered under Section 88 and
Order XXXV of the Code of Civil Procedure, 1908. The primary
dispute in an interpleader suit typically arises among the defendants who
interplead against each other, rather than involving the plaintiff and the
defendant of a case.

For instance, consider a scenario where ‘A’ owes money to ‘B’, which is
due on a certain date. However, ‘B’ dies before the due date and ‘C’ and
‘D’ approach ‘A’ for the payment of the money. Both ‘C’ and ‘D’ claim to
be the legal heirs of ‘B’. In such a situation where ‘A’ is ready and willing
to make the payment but has no means to find out whom to pay, ‘A’
would file an interpleader suit in the court where the defendants
interplead to establish their respective claims.

The fundamental idea behind the interpleader suit is “A person

confronted with conflicting demands that he do or pay something ought
not to be liable twice”. The plaintiff in an interpleader suit must not claim
any kind of interest in it apart from the necessary charges incurred in
filing such a suit or maintaining the property.

Section 88 and Order XXXV of the Code of Civil Procedure, 1908

encompass the provisions governing Interpleader suits.

Section 88 delineates the criteria and conditions under which an

interpleader suit can be initiated. It specifies the essential elements of an
interpleader suit as follows:
  Similar Property: There must be property involved that is of a
similar nature, which can include a mortgage, a sum of money, or
any movable or immovable property.
 Multiple Claims: Two or more parties must assert competing
claims against each other regarding the said property.
 Disinterested Claimant: The person initiating the suit (plaintiff)
claiming the property must not have any interest in it, except for
potential charges or expenses. This disinterest is crucial, as the
plaintiff must be in a position to deliver or transfer the property to
the rightful claimant.
 Interpleader Action: A person claiming property may commence
an interpleader action against all the claimants involved. The
objective is to determine which claimant is entitled to receive
payment or possession of the property. Additionally, the plaintiff
seeks indemnity for themselves in this process.

Q.15. What do you understand by an Affidavit?

An affidavit in the Indian Judiciary is a voluntarily made written

statement, signed by the deponent (the person making the affidavit), and
accompanied by an oath regarding the authenticity of the contents. It is
signed and witnessed by a notary authority.

The term “Affidavit” has its roots from a Latin word which literally means
to "pledge one’s faith". It can be thought of as a sort of written court
testimony. Just like in a court of law where you are required to place
your hand on a Holy Book and swear that you’re telling the truth,
similarly, in an affidavit, you do this in writing.

Affidavits are important as they can be used as an alternative to oral

submission/evidence/testimony which is only admissible before a judge.
However, misleading information in an affidavit can lead to a perjury
charge against the affiant.

The law on affidavits in India is governed by Section 139, Order XIX of

the Code of Civil Procedure and Order XI of the Supreme Court
Rules. The judiciary has upheld the importance of the veracity of an
affidavit by the virtue of these rules and sections.

Q.16. What is pauper suit?

A Pauper Suit in the Indian Judiciary refers to a legal provision that
allows an indigent person, who cannot afford the usual court fees, to
proceed in court. This provision is primarily aimed at enabling individuals
with limited means to seek justice without being hindered by financial
constraints.

The provision for filing a suit as a pauper is governed by Order 33 of the

Code of Civil Procedure, 1908 (CPC). To be recognized as a pauper,
the individual must satisfy the court regarding their inability to afford the
court fees. They need to provide evidence or a sworn statement
(affidavit) declaring their financial incapacity.

If the court is satisfied with the applicant’s inability to pay court fees, it
can allow the person to file the suit as a pauper. If approved, the court
exempts the applicant from paying court fees and appoints a lawyer
(known as a “pauper counsel”) to represent the pauper in court
proceedings.

In brief, a Pauper Suit is a suit where a person with limited means to live
or a poor person is supported or assisted at public expense. An
impecunious contestant is permitted to sue or defend without paying
costs. An impoverished criminal defendant has a right to receive legal
services without charge.

Q.17. What do you mean by written statement and what are the two
parts of written statement?

A Written Statement in the context of the Code of Civil Procedure

(CPC) in India is a formal legal document filed by the defendant in
response to a plaintiff’s complaint or petition. This document serves to
outline the defendant’s defenses, denials, and counterclaims, if any.

The written statement should be concise and focus on the key issues in
the case. It is a crucial part of the legal process and helps shape the
direction of the lawsuit.

The defendant is required to admit or deny each allegation made by the

plaintiff and present any affirmative defences they may have.
Additionally, if the defendant has any claims against the plaintiff, these
may be included as counterclaims in the written statement. It’s essential
to adhere to the legal requirements and deadlines when filing a written
statement in accordance with the CPC.
The written statement should be concise and focus on the key issues in
the case. It is a crucial part of the legal process and helps shape the
direction of the lawsuit.

The defendant is required to admit or deny each allegation made by the

plaintiff and present any affirmative defences they may have.
Additionally, if the defendant has any claims against the plaintiff, these
may be included as counterclaims in the written statement. It’s essential
to adhere to the legal requirements and deadlines when filing a written
statement in accordance with the CPC.

The two main parts of a written statement are:

1. Response to Allegations: The defendant is required to admit,

deny, or lack knowledge of each specific allegation made by the
plaintiff. This response should be clear and specific, addressing
each allegation individually.
2. Affirmative Defenses and Counterclaims: This part includes any
affirmative defenses that the defendant wishes to raise, which are
legal arguments that, if proven, could excuse the defendant from
liability. If the defendant has any claims against the plaintiff, these
may be included as counterclaims in the written statement.

Components of Written Statement Format

Here are the key components typically found in a written statement

format according to the CPC:

 Title: The title should clearly state that it is a “Written Statement”

filed under the CPC. It should also include the case number and
the names of the parties involved.
 Introduction: Begin with an introductory paragraph that identifies
the defendant, their address and their role in the case.
 Background: Provide a brief background of the case, including
the plaintiff’s claims and the circumstances that led to the lawsuit.
Mention the court where the case is filed.
 Response to Allegations: Respond to each allegation made by
the plaintiff in their complaint. Clearly indicate whether the
defendant admits, denies, or lacks knowledge of each specific
allegation. Use a numbered list for clarity.
 Affirmative Defenses: Include any affirmative defences that the
defendant wishes to raise. These are legal arguments that, if
proven, could excuse the defendant from liability.
 Counterclaims: If the defendant has any claims against the
plaintiff arising from the same set of circumstances, these should
be presented as counterclaims in the written statement.
 Witnesses and Evidence: Mention any witnesses or evidence the
defendant intends to rely on during the trial to support their
defence.
 Legal Citations: If there are relevant legal statutes, case law, or
precedents that support the defendant’s position, reference these
in the written statement.
 Relief Sought: Clearly state what the defendant seeks from the
court. This may include a request for the case to be dismissed, a
specific judgment, or any other appropriate relief.
 Verification: The written statement should typically be verified by
the defendant or their legal representative, confirming that the
contents are true and correct to the best of their knowledge and
belief.
 Date and Signature: Sign and date the written statement and
include the name and designation of the person signing it.
 Annexures: Attach any relevant documents, exhibits, or evidence
that support the defendant’s case. Refer to these in the written
statement.