Chapter 9 Pleadings – CS Professional Drafting, Pleadings and Appearances Notes is designed strictly as per the latest syllabus and exam pattern.
Pleadings – Drafting, Pleadings and Appearances Study Material
Question 1.
Write notes on the following: (June 2013)
(i) Written statement
(ii) Objects of pleadings (4 marks each)
Answer:
(i) 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 judgement against him or may under 0.8, 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 Pun’s & Haryana 435).
(ii) The present day system of pleadings in our country is based on the provisions of the Civil Procedure Code, 1908 as amended/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. Pleadings generally mean either a plaint or a written statement.
The main objective behind formulating the rules of pleadings is to find out and narrow down the controversy between the parties.
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 cause of action must take (Ganesh Trading v. Mojiram, AIR 1978 CS 484.) The whole object of pleading is that each side may be fully alive to the questions that are about to be argued in order that they may have an opportunity of bringing forward such evidence as may be appropriate (Lakshmi Narayan v. State of Bihar, AIR 1977 Patna 73.)
The fundamental rule of pleadings is contained in provisions of order 6 Rule 2 of the Civil Procedure Code, which enjoins :
- Every Pleading shall contain only 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.
- 2. Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively each allegation being, so far as is convenient, contained in a separate paragraph.
- Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.
Question 2.
Write note on the following.
Factors/considerations that a Judge looks for in the pleadings of parties in the cause (Dec 2013, 4 marks)
Answer:
While pleading, a judge in your pleadings looks for:
| (i) Clarity | The judge’s time is limited, so make the most of it. |
| (ii) Credibility | The judge needs to believe that what you are saying is true and that you are on the right side. |
| (iii) Demeanour | We don’t have a phrase “hearing is believing”. The human animal which includes the human judge, is far more video than audio. The way we collect most of our information is through our eyesight. |
| (iv) Eye contact | While pleading, maintain eye contact with your judge. |
| (v) Voice modulation | Voice modulation is equally important. Modulating your voice allows you to emphasize the points you want to plead. Be very careful about raising your voice. Use your anger strategically, but use it rarely. Always be in control of it. |
| (vi) Psychology | Understand judge’s psychology as your job is to make the judge prefer your version of the truth. |
| (vii) Be likeable | At least be more likeable than your opponent. If you can convert an unfamiliar Bench into a group of people who are sympathetic to you personally, you perform a wonderful service to your client. |
| (viii) | Ability to listen. |
| (ix) | Entertain your judge. Humour will often bail you out of a tough spot. |
Question 3.
Write note on the following :
Interlocutory application (June 2014, 4 marks)
Answer:
Interlocutory application is a general application, which can be filed with the Court to apply for any general direction of civil proceeding. An application of this type can be used to apply for an adjournment, to extend the validity of a Complaint, or to file documents outside the usual filing time limits. Interlocutory applications are usually made by a summons, supported by affidavits or affirmations, which have to be filed with the Court and served on the other party.
Some common interlocutory applications are listed below:
- Application for extension of time for complying with certain directions under the rules of Court or a Court order. For example, the plaintiff may apply (with substantial reasons) to extend the deadline for filing a reply to a defence.
- Application for further and better particulars (more detailed information) of the other party’s pleadings.
- Application for striking out a particular pleading or part of the pleading of the other party.
- Application for amendment to the pleadings. The plaintiff and the defendant each may amend their own pleadings once before the close of pleadings (note), without the court’s prior permission.
“Interlocutory proceedings” are proceedings that deal with the rights of the parties (plaintiff and defendant) in the interval between the commencement of the civil action and its final determination (i.e. before the Court delivers the final judgement). One of the main functions is to ensure that the matter proceeds expeditiously and properly to trial.
The power to grant Interlocutory orders can be traced to Section 94 of C.P.C., interlocutory orders may take various shapes depending upon the requirement of the respective parties during the pendency of the suit. Applications for appointment of Commissioner, Temporary Injunctions, Receivers, payment into Court, security for cause etc.
Question 4.
Write notes on the following :
Plaint structure (June 2018, 4 marks)
Answer:
Plaint Structure
A suit is instituted by filling 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) where the plaintiff has allowed a set – off or relinquished a portion of his claim, the amount so allowed or relinquished; and
(h) 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;
(i) the relief which the plaintiff claims;
(j) verification of the plaint.
Question 5.
Write note on the following :
Conditions for Appeals before the Hon’ble Supreme Court in Civil cases. (June 2019, 4 marks)
Answer:
The Supreme Court of India is the apex Court in the country and hence the final court of appeal for any litigant. The Supreme Court has appellate jurisdiction as well as original jurisdiction. Under Article 133 of the Constitution an appeal also lies in cases where the High Court certifies that a substantial question of law needs to be decided by the Supreme Court. Article 133 deals with conditions for appeals to the Hon’ble Supreme Court from decisions of High Court in civil proceedings. For an appeal to the Hon’ble Supreme Court the conditions laid down in this article must be fulfilled.
These conditions are:
- the decision appealed against must be a “judgement, decree or final order” of a High Court in the territory of India
- such judgement, decree or final order should be given in a civil proceeding, and
- a certificate of the High Court to the effect that (i) the case involves a substantial question of law of general importance, and (ii) in the opinion of the High Court the said question needs to be decided by the Supreme Court.
Question 6.
Write notes on the following :
Can revision application be made where aggrieved party has right to appeal in the matter? Elucidate with relevant provisions of Criminal Procedure Code. (June 2019, 4 marks)
Answer:
(i) Sub-section (4) of Section 401 of the Code of Criminal Procedure, 1973, provides where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
The Code of Criminal Procedure provides a remedy, by way of appeal under Chapter XXX and if the party does not file an appeal against an order of the inferior criminal Court, he will not be permitted to prefer a revision against that order. But legal bar does not stand in the way of High Court’s exercise of power of revision suo motu.
It can itself call for the records of proceedings of any inferior criminal Court and has power to enhance the sentence by exercising its revisional jurisdiction. The power however is to be exercised only in exceptional cases where there has been a miscarriage of justice owing to a defect in the procedure or a manifest error on the point of law, excess of jurisdiction, abuse of power, where decision upon which the trial court relied has since been reversed or overruled when the revision appeal is being heard.
Question 7.
Write notes on the following : (June 2019)
(i) Enumerate the stages of a criminal trial in a summons case.
(ii) FIR and Complaint. (4 marks each)
Answer:
(i) According to Section 2(w) of Code of Criminal Procedure, 1973, those cases in which an offense is punishable with an imprisonment of fewer than two years is a summon case.
Stages of Criminal Trial in a summons case are:
Pre-Trial: In the pre-trial stage, the process such as filing of FIR and investigation is conducted.
Charges: In summons trials, charges are not framed in writing. The accused appears before the court or is brought before the court then the Magistrate would orally state the facts of the offense he is answerable.
Plea of Guilty: The Magistrate after stating the facts of the offence will ask the accused if he pleads guilty or has any defense to support his case. If the accused pleads guilty, the Magistrate records the statement in the words of the accused as far as possible and may convict him on his discretion.
Plea of Guilty and Absence of the Accused : In cases of petty offences, where the accused wants to plead guilty without appearing in the court, the accused should send a letter containing an acceptance of guilt and the amount of fine provided in the summons.
Prosecution and Defense Evidence : If the accused does not plead guilty, then the process of trial starts. The prosecution and the defense are asked to present evidence in support of their cases.
Judgement : When the sentence is pronounced in a summons case, the parties need not argue on the quantum of punishment given. The sentence is the sole discretion of the judge. This right to appeal is also extended to the accused.
(ii) FIR : According to Section 154 of the Code of Criminal Procedure, 1973, FIR means 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.
Complaint under Section 2(d) of the Code of Criminal Procedure, 1973 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. The petition of complaint must be submitted to the Magistrate. If it is submitted to some other official it is not a complaint. In order to be a complaint, the petition must make allegations about occurrence of some offence.
The key differences between complaint and FIR are given hereunder:
A written document prepared by the police, when the police get the information about the commission of a crime for the very first time, is known as FIR or first information report. Conversely, a petition filed with the magistrate that contains an accusation regarding the commission of an offence and a prayer is made that the accused should be penalized, is called complaint.
While a complaint has no prescribed format, FIR can only be registered in the ormat prescribed by the law.
One can make a complaint to the metropolitan magistrate, whereas an informant or plaintiff can lodge FIR to the police officer of the respective police station.
The complaint is made for both cognizable and non-cognizable offences. Unlike, only cognizable offences are covered in case of FIR.
Any person can make a complaint to the magistrate regarding the offence, except in the case of marriage and defamation wherein only aggrieved party can make a complaint. On the contrary, any person who is an aggrieved party, witness or is having the knowledge of the crime can file FIR.
Question 8.
Distinguish between the following:
‘Special civil application’ and ‘special criminal application’. (June 2013, 3 marks)
Answer:
Special Civil Application and Special Criminal Application
Special Civil Application (SCA) is another name for a Writ Petition, i.e. Petition for issuing prerogative writs of mandamus etc., for enforcement of fundamental rights or for any other purpose under Article 226 of the constitution of India (only for High Courts).
In fact the SCA is a technically couched and framed civil application for enforcement of fundamental rights, but not well defined statutory legal rights. SCA is a popular term for Writ Petitions in Bombay High Court and other Southern State High Courts. In Delhi, the term Writ Petition (WP) (Civil) is used.
Special Criminal Application, on the other hand is a Criminal Application (Cr. A) for relief/orders to be obtained from the Court in criminal matters. A popular example is Special Criminal Application for grant of bail/anticipatory bail in case of refusal by lower criminal court. The Special Criminal Application is primarily directed for enforcement of fundamental rights under article 14 and 21 of the Constitution, which is criminal in nature (i.e., punishment and fine are involved).
Question 9.
Distinguish between the following:
‘Wordings in the order of permanent injunction’ and ‘wordings in the order of temporary injunction’. (June 2014, 4 marks)
Answer:
Permanent injunction restrains a party for ever from doing the specified act and the same can be granted only on merits at the conclusion of the trial after hearing both the parties to the suit. It is governed by Sections 38 to 42 of the Specific Relief Act, 1963.
A temporary or interim injunction on the other hand restrains a party temporarily from doing the specified act and can be granted until the disposal of suit. It is regulated by the provisions of Order 39 of the Code of Civil Procedure, 1908 and it may be granted at any stage of the suit. Injunctions are preventive, prohibitive or restrictive i.e. when they prevent, prohibit or restraint some one from doing some thing or mandatory, i.e. when they compel, command or order some persons to do some thing.
Question 10.
Distinguish between the following:
‘Set-off’ and ‘counter claim’. (Dec 2014, 4 marks)
Answer:
Set Off and Counter Claim
| SetOff | Counterclaim |
| Set-off is for an ascertained sum or arises out of the same transaction as the plaintiff’s claim. | A counter claim may not arise out of the same transaction. |
| Set-off is a defence and as such has to be pleaded in the written statement. | Counter-claim on the other hand is a weapon of defence enabling a defendant to enforce his claim against the plaintiff as effectively as in an independent action. It is a sort of cross-action. |
| In the case of set-off the plaintiff in order to establish his plea of limitation has to prove that set-off was barred when the plaintiff commenced his action. | In a counter-claim the plaintiff has to prove that it was barred when it was pleaded. |
| Set-off is a claim by the defendant in defence which exceed the plaintiff’s claim. | A counter claim by the defendant may, however, exceed the plaintiff’s claim being in the nature of a crossaction |
Question 11.
Distinguish between ‘complaint’ and ‘first information report’. (Dec 2014, 4 marks)
Answer:
COMPLAINT
Complaint under section 2(d) of the Criminal Procedure Code means any allegation made orally or in writing to 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.
However, a 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 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.
A complaint in a criminal case is what a plaint is in a civil case. The requisites of a complaint are:
- an oral or a written allegation;
- some person known or unknown has committed an offence;
- it must be made to a Magistrate; and
- it must be made with the object that he should take action.
FIRST INFORMATION REPORT (FIR)
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.
Question 12.
Distinguish between the following:
‘Complaint’ and ‘plaint’. (June 2015, 4 marks)
Answer:
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.
However, a 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 as a complainant.
A Complaint in a criminal case is what a Plaint is in a civil case. Order 6, R. 1 of Civil Procedure Code, 1908 (C.P.C.) defines ‘pleading’. It means either a plaint or a written statement. Plaint is the statement of claim, in writing and filed by the plaintiff, in which he sets out his cause of action with all necessary particulars.
Question 13.
Distinguish between the following:
‘Appellant’ and ‘defendant’. (Dec 2015, 4 marks)
Answer:
Appellant
Appellant is one who appeals against a decision, or remove a cause from a lower to a higher Tribunal/Court. An appellant, sometimes called the petitioner must demonstrate sufficient grounds for appeal, which are usually specified by statute, in order to challenge the judgement or findings.
Defendant
The party sued in an action. One who is sued or prosecuted. The title defendant is more generally applied to a party in civil than in a criminal suit or proceeding. The word defendant may include a respondent.
According to the Limitation Act, 1963, “defendant” includes:
- any person from or through whom a defendant derives his liability to be sued;
- any person whose estate is represented by the defendant as executor, administrator or other representative.
Question 14.
Distinguish between the following:
FIR and Complaint (Dec 2017, 4 marks)
Answer:
Complaint:
Complaint under section 2(d) of the Criminal Procedure Code means any allegation made orally or in writing to 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.
However, a 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 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.
A complaint in a criminal case is what a plaint is in a civil case. The requisites of a complaint are:
- an oral or a written allegation;
- some person known or unknown has committed an offence;
- it must be made to a Magistrate; and
- it must be made with the object that he should take action.
FIRST INFORMATION REPORT (FIR)
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.
Question 15.
Distinguish between “Plaint and Written Statement”. (June 2019, 4 marks)
Answer:
Plaint:
A plaint is a legal document which contains the written statement of the plaintiff’s claim. A plaint is the first step towards the initiation of a suit. In fact, in the very plaint, the contents of the civil suit is laid out. A plaint is usually divided in parts such as a heading, the cause title, the body, the prayer and signature and verification of the plaintiff.
The heading signifies the appropriate jurisdiction of the court while cause title is the name, description and capacity of litigating parties.. Plaint should contain name, description and residence of defendant. The entire legal machinery under the Civil Law is set in motion by filing of plaint and hence plaint is the actual starting point of all pleadings in a case.
Written Statement:
Written statement means a pleading for defense. In other words, a written statement is the pleading of the defendant wherein he deals with every material fact alleged by the plaintiff along with any new facts in his favor or that takes legal objections against the claim of the plaintiff. The defendant is required to file a written statement of his defense at or before the first hearing or such time as may be allowed along with the list of documents relied upon by him.
If defendant disputes maintainability of the suit or takes the plea that the transaction is void it must be specifically stated. A general denial of grounds alleged in the plaint is not sufficient and denial has to be specific and must be substantiated with documentary evidence wherever possible. The denial should not be an evasive denial but it must be on point of substance. Every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading shall be deemed to be admitted.
Question 16.
Differentiate between complaint and first information report (FIR) under the Criminal Procedure Code, 1973. (June 2022, 5 marks)
Question 17.
(a) Explain the following : (June 2012)
(i) Preliminary submissions/objections in legal pleadings. (4 marks)
(b) What are the different forms of defence that may be adopted by a defendant while replying to opponent’s pleadings? (8 marks)
Answer:
(a) (i) Preliminary submission/objection in legal pleading:-
While taking preliminary submissions/objections one should ensure that the legal provisions and or interpretation, thereof, is very clear and directly applicable to the issue involved in the matter.
Thus, here in :
(a) unregistered agreement;
(b) contract form the basis of a claim set up by a party.
(c) such agreement /contract which is compulsorily requires registration under Section 17 of the Registration Act.
(d) a legal plea should be taken that since agreement is not registered document.
(e) the same could not be looked into or relied upon by the Court for the reasons that the same cannot be read in evidence.
Following illustration are given below:
- suit is not maintainable for want of statutory notice
- plaint does not disclose cause of action
- plaintiff has no right to sue
- suit barred by principles of res-judicata
- suit barred by principles of waiver estoppel, acquiescence
- Court has no jurisdiction.
- suit is barred by limitation.
(b) Forms of Defence : A defence may be taken the form of:
(i) a “traverse” as where a defendent totally and categorically denies the plaint allegation.
(ii) “a confession and avoidance” or “special defence”, where he admits the allegation but seek 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.
(iii) an objection in point of law e.g. that the plaint allegations do not disclose a cause of action or that the special damages claimed are too remote.
Note: (i) Another plea may sometimes be taken which merely delays the trial of a suit on merits, example-under Section 10, C.P.C. 1908provides that a plea that the hearing should be stayed.
(ii) that the suit has not been properly framed, there being some defect in the joinder of parties or cause of action and the case cannot be decided until those defect are removed.
A defendant may adopt one or more of the above forms of defence and in fact he can take any number of different defences to the same action.
Question 18.
State the ten essential ingredients of an affidavit conforming to the provisions of Order XIX, Rule 1 of the Code of Civil Procedure, 1908. (June 2012, 10 marks)
Answer:
An affidavit being a statement or declaration on oath by the depoqent, is an important document. Therefore, great care is required in drafting it. The consequences of a false affidavit are serious. The following rules should be remembered when drawing up an affidavit:
1. Not a single allegation more than is absolutely necessary should be inserted;
2. The person making the affidavit should be fully described in the affidavit;
3. An affidavit should be drawn up in the first person;
4. An affidavit should be divided into paragraphs, numbered consecutively and as far as possible, each paragraph should be confined to a distinct portion of the subject;
5. Every person or place referred to in the affidavit should be correctly and fully described, so that he or it can be easily identified;
6. When the declarant speaks of any fact within his knowledge he must do so directly and positively using the words “I affirm” or “I make oath and say”;
7. Affidavit should generally be confined to matters within the personal knowledge of the declarant and if any fact is within the personal knowledge of any other person and the petitioner can secure his affidavit about it, he should have it filed. But in interlocutory proceedings, he is also permitted to verify facts on information received, using the words “I am informed by so and so” before every allegation which is so verified. If the declarant believes the information to be true, he must add “and I believe it to be true”.
8. When the application or opposition thereto rests on facts disclosed in documents or copies, the declarant should state what is the source from which they were produced and his information and belief as to the truth of facts disclosed in such documents;
9. The affidavit should have the oath or affirmation written out at the end. An affidavit has to be drawn on a non-judicial Stamp Paper as applicable in the State where it is drawn and sworn.
An affidavit shall be authenticated by the deponent in the presence of an Oath Commissioner, Notary Public, Magistrate or any other authority appointed by the Government for the purpose.
10. Affidavits are chargeable with stamp duty Under Articles 4, Schedule I, Stamp Act, 1899. But no stamp duty is charged on affidavits filed or used in Courts. Such affidavits are liable to payment of Court fee prescribed for the various Courts.
Question 19.
(a) Explain the following: (June 2013)
(i) Relevance of counter affidavit in pleadings. (4 marks)
(b) State the provisions relating to appeals under the Code of Civil Procedure, 1908. (8 marks)
Answer:
(a) (i) Counter Affidavit:
Pleadings filed by a defendant/respondent in answer to the claims set out by the plaintiff/petitioner, in the form of an affidavit and/or supported by an affidavit are referred to as a counter affidavit.
This nomenclature is generally used while filing pleadings on behalf of a defendant/respondent before the High Court and/or certain other Tribunals and Commissions etc.
The rules of pleadings as are applicable to a written statement, apply to a counter affidavit as well.
Filing of a counter affidavit is obligatory when the defendant/respondent is so required by the Court.
Failure of the defendant/respondent to file a counter affidavit on . the day fixed by the Court, will not entitle him, as of right, thereafter to file it.
It does not mean that the defendant/ respondent will be shut out once for all.
He may be permitted by the Court to file it on a later date on sufficient grounds shown for not filing the same in time.
(b) Appeals : Although “Appeal” has not been defined in the Code of Civil Procedure, 1908 yet any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate court, is an “appeal”. A right of appeal is not a natural or inherent right but is a creature of a statute.
It is the statute alone to which the Court must look to determine whether a right of appeal exists in a particular instance or not. Parties cannot create a right of appeal by agreement or mutual consent. The right of appeal is not a matter of procedure, but is a substantive right and can be taken away only by a subsequent enactment, if it says so expressly or by necessary intendment and not otherwise. It is for the appellant to show that the statute gives a right of appeal to him.
The Code of Civil Procedure, 1908 provides for four kinds of appeals:
- Appeals from original decrees (Sections 96 to 99 and Order XLI);
- Second Appeals (Sections 100 to 103);
- Appeals from Orders (Sections 104 to 106, Order XLII, Rules 1 and 2); and
- Appeals to the Supreme Court.
Question 20.
The plaintiff, ABC, had entered into a contract with Mass Global Investment Co. (MGI), defendant No. 1,for the execution of aturnkey project in Jordan. Three bank guarantees (BGs) issued by XYZ Bank, defendant No. 2 were furnished by plaintiff. During the execution of the contract, disputes arose between the parties as to the completion of the project. MGI threatened to encash the BGs. ABC filed a suit against MGI and moved an injunction application (IA) restraining MGI from encashing the BGs, pleading breach of faith, failure of consideration, lack of bona fides, fraud of defendants, etc., in the original contract. (Dec 2013, 20 marks)
After due hearings, the Court dismissed the IA, holding that defendant is restrainable only if the plaintiff succeeds in establishing that:
(a) It has a prima facie cause;
(b) It will suffer irreparable injury if injunction is not granted; and
(c) Balance of convenience is in its favour.
The learned Judge also held that “it is well settled that the bank guarantee is an independent contract, the invocation of which, especially if it is unconditional guarantee, ought not and cannot be stayed by Court except in case of fraud and irretrievable injury.”
The Plaintiff, ABC, being an aggrieved party intends to appeal in the High Court against the dismissal order on following main grounds:
(i) The bank guarantee is consequential and collateral to the main contract of execution of turnkey project. As per clause XX in both the contract agreements, it was specifically recorded; and also that the guarantee is conditionally valid only against intentional or unreasonable, legal and practical defaults. Vis major, Act of God, etc., are excluded. In this case, the default and dispute arose due to internal commotion in Jordan that caused frustration of contract. Hence, plaintiff is not liable.
(ii) Plaintiff suffers irreparable loss of goodwill for no fault on its part. This causes balance of convenience in its favour too. Draft an appeal from order of trial Judge keeping principles of drafting in view. Assume supplementary data, if necessary.
Answer:
IN THE MATTER OF: ……………………..
ABC : ………………………
……………….. Appellant
Versus
Mass Global Investment Co., an entity incorporated under the………………..
Respondent No. 1
&
XYZ Bank
Respondent No. 2
May it please the Hon’ble Chief Justice of the High Court of …………………. and his Lordship’s companion Justices,
The Appellant
MOST RESPECTFULLY SHOWETH
1. That the Appellant on ……………………… had entered into a legally valid contract with Respondent No.1 for the execution of a turnkey project named …………………. in Jordan. For satisfactory and timely completion of the project, XYZ Bank, Respondent No.2 upon assurances and consent by both the Appellant and Respondent No.1 issued three Bank guarantees and executed a collateral and linked-up contract of guarantee. Both the contract agreements are annexed herewith in original as Annexure I.
2. Within one month of starting the execution of the project, dispute arose between the parties as to the completion of the project. With due efforts of the law and order enforcement authorities, it could not be contained. As a consequence, the project execution was held up for over one month.
3. The Respondent No. 1 felt aggrieved, their GM(Project) refused to entertain all the reasonable pleas and notice/explanations tendered by Appellant. These documents are annexed herewith as Annexure II in original; the acknowledgments of Respondents to these are also enclosed with this Annexure collectively.
4. In highhanded manner, the Respondent No.1 then served on Appellant a notice dated …………………….. that they are encashing the Bank Guarantees (BGs) Issued by the Respondent No.2
5. Suffering irreparable damages thus for no fault of theirs, the Appellant instituted a civil suit ……………….. alongwith an injunction application (IA) under section 39(1) CPC, 1908 No …………………… seeking injunction restraining the Respondent No. 1 from encashing the BGs on grounds of breach of faith, lack of bona fide, vis major etc. The plaint and IA memo are enclosed herewith as Annexure III & Annexure IV.
6. The Court heard the matter and considered the written and oral pleadings of the parties as available on court’s record then. However, the learned judge dismissed the IA, holding that:
(a) The Appellant is guilty of breach of contract ipso facto; and commotion cannot reasonably exonerate him of his contractual liability.
(b) The appellant has no prima facie cause, nor does he suffer irreparable injury as monetary loss is reparable,
(c) BG contract is an independent contract, the invocation of which especially if it is unconditional guarantee, ought not and cannot be stayed by Court except in case of fraud and irretrievable injury.
7. Copy of the impugned order dated …………………….. is Annexed herewith as Annexure V. It is a notarized copy.
8. The Appellant aggrieved by the decision files this appeal before the Honourable High Court on the following main grounds:
(a) That the bank guarantee is consequential and collateral to the main contract of execution of turnkey project. As per clause XX in both the contract agreements, it was specially recorded; and also that the guarantee is conditionally valid only against intentional or unreasonable, legal and practical defaults. Vis major, Act of God, etc. are excluded. In this case, the default and dispute arose due to internal commotion in Jordan that caused frustration of the contact, hence he is not liable.
(b) That the Appellant has suffered irreparable loss of goodwill for no fault on its part. This causes balance of convenience in its favour too.
(c) ………………………..
(d) ……………………….
(Candidates may add further grounds if necessary)
That the valuation of this Appeal for the purposes of payment of Court fees is fixed at ₹ ………………. So, requisite Court fee stamps for ₹ ……………… have been affixed as the Memorandum of Appeal. That this Appeal is filed within the prescribed period of limitation, the impugned order being passed on …………………… and Appellant getting its certified copy from Reporting on ………………….
PRAYER
In view of the above facts and circumstances, the Appellant prays that this Appeal be allowed, the impugned order dated ……………….. be set aside and the original suit/IA prayer for restraining the Respondent from en-cashing bank guarantees be granted.
Also, costs of Appeal may kindly be awarded to Appellant against the Respondents.
Date :
Place :
Appellant
Through XXX
Advocate of the Appellant
Verification
Verified at …………………. on this ……………………. day of 2013, that the contents of the above Appeal are correct to the best of my knowledge and belief.
Appellant
Question 21.
Define ‘appeal’. Discuss various kinds of appeal provided under the Code of Civil Procedure, 1908. (Dec 2013, 8 marks)
Question 22.
Explain the following :
(a) A complaint in a criminal case is what a plaint is in a civil case, whether the complaint is made to police or to a Court.
(b) Material facts vis-a-vis immaterial facts while drafting a plaint. ((June 2014, 4 marks each)
Answer:
(a) A complaint in a criminal case is what a plaint is in a civil case. The requisites of a complaint are:
- an oral or a written allegation;
- some person known or unknown has committed an offence;
- it must be made to a magistrate; and
- it must be made with the object that he should take action.
There is no particular format of a complaint. A petition addressed to the Magistrate containing an allegation that an offence has been committed and ending with a prayer that the culprit be suitably dealt with is a complaint. (Mohd. Yousuf v. Afaq Jahan, AIR 2006 SC 705). Complaint need not be presented in person. A letter to a magistrate stating facts constituting an offence and requesting to take action is a complaint.
Police report is expressly excluded from the definition of complaint but the explanation to Section 2(d) makes it clear that such report shall be deemed to be a complaint where after investigation it discloses commission of a non-cognizable offence. Police report means a report forwarded by a police officer to a Magistrate under Subsection (2) of Section 173.
(b) A material fact is an occurrence, event, or information that is sufficiently significant to influence an individual into acting in a certain way, such as entering into a contract. In formal court procedures, a material fact is anything needed to prove one party’s case, or tending to establish a point that is crucial to a person’s position.
Whereas, Immaterial facts are facts not necessary or essential to the right of an action. Immaterial facts are of no importance or relevance. It will be inconsequential or irrelevant in a case. Immaterial facts have no material body or form. The case cannot be decided based on such facts. Immaterial facts are of no substantial consequence or of no material significance.
Plaint is the statement of claim in writing and filed by the plaintiff, in which he sets out his cause of action with all necessary particulars. Plaint is the first process in inferior court in the nature of an original writ, whereby a party seeks remedy from Court for the redressal of his grievances.
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.
The fundamental rule of pleadings is contained in provisions of O.6, R. 2 of C.P.C. 1908 which states that “Every pleading shall contain only, 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. Material facts which gave the plaintiff his cause of action or the defendant his defence are, briefly speaking, material facts which he must prove or fail.
It, therefore, stands to reason that facts which are not required to support the plaintiffs or the defendant’s case are not material. Whether a fact is material or not depends on the facts and circumstances of each case and can be held so or otherwise only in the context of relevant situation. Any fact which is not material should be avoided.
Question 23.
Critically comment on the following:
Pleading is just a written complaint for preventing deviations from the course which litigation must take as held in Ganesh Trading vs. Motiram AIR 1970 SC 480. (Dec 2014, 5 marks)
Answer:
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 only when stripped of verbosity it pinpoints succinctly the plaintiff’s grievances giving him the right to sue for the desired relief, or when it briefly sets out the defendant’s defence. When so done, there would be hardly any scope left to beat about the bush or to take the other party by surprise.
Pleadings should be read not by the piecemeal but as a whole and should be liberally construed. Every denial defect should not be allowed to defeat a pleading, for a plaintiffs case should not be defeated merely on the ground of some technical defect in his pleadings provided he succeeds on the real issues of the case.
It has been held: “Rigid construction of the law of pleadings was inappropriate and not calculated to serve the cause of justice for which the law of procedure was largely designed (AIR 1969 Del. 120). This should, of course, not be taken as an excuse for pleadings extremely lax and irrelevant, argumentative and inaccurate”.
In construing the plaint, the Court has to look at the substance of the plaint rather that its mere form. If, on the whole and in substance, the suitor appears to ask for some relief as stated, the Court can look at the substance of the relief. “Pleadings have to be interpreted not with formalistic rigour but with latitude of awareness of low legal literacy of poor people”.
Question 24.
In the light of judicial pronouncements, discuss the following:
It is well settled that evidence should be tailored strictly according to pleadings. (Dec 2014, 4 marks)
Answer:
Drafting of affidavit in evidence: The provisions of Sections 101, 102,
103, 106, 109, 110 and 111 of the Indian Evidence Act, 1872 must be considered before one proceeds to draft the affidavit in evidence. No extraneous evidence can be looked into in absence of specific pleadings (Habib Khan v. Valasula Devi, AIR 1997 A.P 52). The following must be kept in mind while preparing the affidavit in evidence by the parties –
(i) The best evidence is that of a person who was personally involved in the whole transaction. In case, that person is not available for any reason, then any other person who has joined in his place to make deposition by way of his affidavit.
(ii) In case, the petitioner himself was involved in the execution of a ) contract, he should file affidavit in evidence.
(iii) The allegations or charges or grounds relating to facts should be re-produced duly supported by documentary evidence.
It may be noted that in the affidavit in evidence, the position of law or legal provisions or principle of law are not reproduced because the position of law or settled principles of law are required to be proved by any party and they are deemed to exist and any party can argue and take help of those settled position of law while arguing their case before the Court or Tribunal or Forum and need to be proved by filing an evidence [Section 5, Indian Evidence Act.]
(iv) In case, the point or issue pertains to engineering, medical, technology, science or other complex or difficult issues, then the evidence of expert is to be filed in the form of his Affidavit. If necessary, the said witness has to appear before the Forum for the purpose of cross-examination by the counsel for the other party. For example, hand-writing or finger print experts etc.
(v) Besides the leading evidence on the points raised by the petitioner or by the opposite party in his written statement/reply, if possible, the party who is filing the affidavit-in-evidence should also file documents, papers or books or registers to demolish the defence or case set up by the opposite party.
(vi) It is also permissible for any party to bring any outside witness (other than the expert witness) in support of his case if the facts and circumstances of the case so warrant and permitted by the Court.
(vii) At the time of tendering affidavit-in-evidence, the party must bring alongwith it either the original of papers, documents, books, registers relied upon by it or bring with it the carbon copy of the same.
It may be noted that only photocopy of any paper or document (in the absence of its reply, original or carbon copy) can not be relied upon and tendered as an evidence.
Question 25.
“Several types of appeal have been provided in the ordinary civil law as well as constitutional framework.” Elucidate in respect of civil jurisdiction only. (Dec 2014, 8 marks)
Answer:
Although “Appeal” has not been defined in the Code of Civil Procedure, 1908 yet any application by a party to an appellate Court, asking it to set aside or revise a decision of a Subordinate Court, is an “appeal”. A right of appeal is not a natural or inherent right but is a creature of a statute. It is the statute alone to which the Court must look to determine whether a right of appeal exists in a particular instance or not. Parties cannot create a right of appeal by agreement or mutual consent. The right of appeal is not a matter of procedure, but is a substantive right and can be taken away only by a subsequent enactment, if it says so expressly or by necessary intendment and not otherwise. It is for the appellant to show that the statute gives a right of appeal to him.
The Code of Civil Procedure, 1908 provides for four kinds of appeals:
(1) Appeals from original decrees (Sections 96 to 99 and Order XLI);
(2) Second Appeals (Sections 100 to 103);
(3) Appeals from Orders (Sections 104 to 106, Order XLIII, Rules 1 and 2); and
(4) Appeals to the Supreme Court.
(1) Appeals from original decrees may be preferred from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court on points of law as well as on facts.
(2) Second Appeals lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
Under Section 100 to the Code, an appeal may lie from an appellate decree passed ex parte. The memorandum of appeal shall precisely state the substantial question of law involved in the appeal. The High Court, if satisfied, that a substantial question of law is involved, shall formulate that question. The appeal shall be heard on question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question.
In the second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal:
(a) which has not been determined by the Lower Appellate Court or both by the Court of first instance and the Lower Appellate Court, or
(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred in Section 100 of the Code (section 103).
(3) Appeals from, Orders under sections 104 to 106 would lie only from the following Orders on grounds of defect or irregularity of law:
(a) An Order under section 35A of the Code allowing special costs;
(b) An Order under section 91 or section 92 refusing leave to institute a suit;
(c) An Order under section 95 for compensation for obtaining arrest, attachment or injunction on insufficient ground;
(d) An Order under the Code imposing a fine or directing the detention or arrest of any person except in execution of a decree; and
(e) Appealable Orders as set out under Order XLIII, Rule 1.
(4) Appeals to the Supreme Court, the highest Court of Appeal, lie in the following cases:
(1) Section 109 of the Code of Civil Procedure, 1908 provides:
“Subject to the provisions in Chapter IV of Part V of the Constitution I and such rules as may, from time to time, be made by the Supreme j Court regarding appeals from the Courts of India and to the I provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgement, decree or final order in a civil proceeding of a High Court, if the High Court certifies:
(i) that the case involves a substantial question of law of general importance; and
(ii) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.
Order 45 of the Code of Civil Procedure, 1908 provides rules of procedure in appeals to the Supreme Court.
(2) Articles 132 to 135 of the. Constitution deal with ordinary appeals to the Supreme Court:
(i) Appeals in Constitutional cases: Clause (1) of the Article 132 of the Constitution provides that an appeal shall lie to the Supreme Court from any judgement, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceedings, if the High Court certifies under Article 134A that the case involves a substantial question of law as to interpretation of the Constitution.
(ii) Appeals in civil cases: Article 133 deals with appeals to the Supreme Court from decisions of High Court in civil proceedings. For an appeal to the Supreme Court the conditions laid down in this article must be fulfilled.
These conditions are:
(a) the decision appealed against must be a “judgement, decree or final order” of a High Court in the territory of India,
(b) such judgement, decree or final order should be given in a civil proceeding, and
(c) a certificate of the High Court to the effect that (i) the case involves a substantial question of law and (ii) in the opinion of the High Court the said question needs to be decided by the Supreme Court.
(iii) Appeals in criminal cases: A limited criminal appellate jurisdiction is conferred upon the Supreme Court by Article 134. It is limited in the sense that 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.
There are two modes by which a criminal appeal from any “judgement, final order or sentence” in a criminal proceeding of a High Court can be brought before the Supreme Court:
- Without a certificate of the High Court.
- With a certificate of the High Court.
- Appeal by Special Leave.
In appeals, as a general rule, the parties to an appeal are not entitled to produce additional evidence, whether oral or documentary, but the Appellate Court has discretion to allow additional evidence in the following circumstances:
- When the lower Court has refused to admit evidence which ought to have been admitted;
- When the party seeking to produce additional evidence establishes that he could not produce it in its trial Court for no fault of his;
- The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgement; and
- For any other substantial cause.
Question 26.
Explain the following:
In a pleading, there is no scope for law and evidence as per Order 6 of the Code of Civil Procedure, 1908; yet, in practice, both are pleaded in higher courts, like High Courts and Tribunals. (June 2015, 4 marks)
Answer:
“Pleading” shall mean plaint or written statement. In a pleading, there is no scope of pleading a provision of law or conclusion of law. It is the intention 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.
In like manner evidence has to be avoided in pleadings. We have noticed the wording of the rule of O. 6, R. 2, 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.
Question 27.
(a) Draft an application for grant of bail. (Dec 2015, 5 marks)
(b) Draft an affidavit of a creditor in proof of his debt in proceeding for the liquidation of a company. (5 marks)
Answer:
(a) BEFORE THE DISTRICT AND SESSIONS JUDGE Court AT __________
IN THE MATTER OF
STATE
vs
Mr. ABC
FIR Number: (Mention the FIR number)
Under Section: (Mention the sections under which the FIR has been filed)
Police Station: (Mention the name of the Police Station)
Accused under custody since (Give the date from when the accused is in custody)
Application u/s 439 Criminal Procedure Code 1973 for grant of bail on behalf of the accused (name of the applicant of the bail)
MOST RESPECTFULLY SUBMITTED AS UNDER:
1. That the present FIR has been registered on false fact. The facts stated in the FIR are fabricated, concocted and without any basis.
2. That the police has falsely implicated the applicant in the present case, and arrested him although, the applicant is a respectable citizen of the society and is not involved in any criminal case.
3. That the facts stated in the complaint against the applicant are civil disputes and does not constitute any criminal offence at all.
4. That the applicant is not required in any kind of investigation nor any kind of custodial interrogation is required.
5. That the applicant is having very good antecedents, he belongs to good family and there is no criminal case pending against them.
6. That the applicant is a permanent resident and there are no chances of his absconding from the course of justice.
7. That the applicant undertakes to present himself before the police/Court as and when directed.
8. That the applicant undertakes that he will not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.
9. That the applicant further undertakes not to tamper with the evidence or the witnesses in any manner.
10. That the applicant shall not leave India without the previous permission of the Court.
11. That the applicant is ready and willing to accept any other conditions as may be imposed by the Court or the police in connection with the case.
12. That the Court below has failed to consider all the facts and circumstances of the case and has wrongly dismissed the bail application.
It is therefore, prayed that the Court may direct the release of the applicant on bail in the interest of justice.
Any other order which the Court may deem fit and proper in the facts and circumstances of the case may be also passed in favor of the applicant.
APPLICANT
THROUGH
COUNSEL
(b) Affidavit of creditor in proof of his debt in proceeding for the liquidation of a company
IN THE (HIGH) COURT OF ……………………………..
The matter of the Indian Companies Act, 2013.
and
The matter of the liquidation of …………… Company Limited. I, AB, 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 ……………….. 2015, the date of the order for winding up the same and still is justly and truly indebted to me in the sum of Rupees (₹ ………………..) only in account of (describe briefly the nature of the debt).
2. That in proof of the aforesaid debt. I attach hereto the documents market 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, that it conceals nothing and no part of it is false.
Sd/-
AB
Deponent
Dated ……………………. 2015
Verification
I, the above-named deponent, verify that the contents of paragraphs 1 to 4 of this affidavit are true to my personal knowledge.
Sd/-
AB
Dated ………………….. 2015
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 AB
Sd/- ………………..
Solemnly affirmed before me on this ………………….. day of …………………. 2015 of ……………….. (time) by the deponent
Sd/- …………………..
(oath Commissioner)
Question 28.
Discuss the requisites of a valid complaint, citing relevant case laws. (Dec 2015, 4 marks)
Answer:
A complaint in a criminal case is what a plaint is in a civil case. The requisites of a complaint are:
- an oral or a written allegation;
- some person known or unknown has committed an offence;
- it must be made to a magistrate; and
- it must be made with the object that he should take action.
There is no particular format of a complaint. A petition addressed to the Magistrate containing an allegation that an offence has been committed, and ending with a prayer that the culprit be suitably dealt with is a complaint. (Mohd. Yousuf v. Afaq Jahan, AIR 2006 SC 705). Complaint need not be presented in person. A letter to a magistrate stating facts constituting an offence and requesting to take action is a complaint.
Question 29.
Examine the following statement:
The right of appeal is not a natural or inherent right. (Dec 2015, 4 marks)
Answer:
A right of appeal is not a natural or inherent right but is a creature of a statute. It is the statute alone to which the Court must look to determine whether a right of appeal exists in a particular instance or not. Parties cannot create a right of appeal by agreement or mutual consent.
The right of appeal is not a matter of procedure, but is a substantive right and can be taken away only by a subsequent enactment, if it says so expressly or by necessary intendment and not otherwise. It is for the appellant to show that the statute gives a right of appeal to him.
Question 30.
Draft a complaint under section 498 of the Indian Penal Code, 1860 for enticing away a married woman. (Dec 2015, 4 marks)
Answer:
A Complaint u/s 498 Indian Penal Code
In the Court of the Judicial Magistrate of the 1st Class, Hyderabad
Case No …………………… of 20 ……………….
AB ……………….. Complainant
Vs.
CD …………………. Accused
Offence u/s 498,1PC
1. The complainant is the mother of A residing along with her grandmother Z, son A, A’s wife B, and A’s two year old son ‘X’.
2. About six months back complainant’s son left for Bahrain, a foreign country on business purposes.
3. The accused who was a friend of the complainant’s son\ developed intimacy with B, in the absence of B’s husband.
4. On the …………….. day of ……………………. both the accused and B were found missing.
5. Friends and others on inquiry told the complainant that they saw both the accused and B at the Hyderabad Airport waiting to board a foreign bound flight.
6. The complainant, being the lawful guardian of B in the absence of B’s husband prays that a search warrant under Section 100 of the Criminal Procedure Code 1973 be issued for the production of B, the daughter-in law of the complainant before this Court.
7. The complainant also prays that a non-bailable warrant against the accused be issued as he is preparing to leave the country.
8. The police were informed about this offence that has referred the complaint to this Court.
Sd/-
Complainant
Witnesses:
1.
2.
Place:
Date:
Question 31.
In the light of judicial pronouncements, discuss the following:
Deficiency in pleading would not affect the plaintiff’s case. (June 2016, 4 marks)
Answer:
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 lead evidence accordingly. Deficiency in pleading would not affect case of the plaintiff [Kailash Chandra v. Vinod, AIR 1994 NOC 267 (MP)].
Question 31.
Draft a legal notice under section 80 of The Code of Civil Procedure, 1908 to the State Government through district collector. (June 2016, 4 marks)
Notice under section 80 Civil Procedure Code
Registered with A/D
Dated ……………………
To,
The Collector of the District of ………………….
P.O. ……………………..
Dt ……………………
Sir,
Under instructions and on behalf of my client Sri …………………… son of …………….. by caste ………….. by occupation ……………… resident at ………………. P.O ………………… P.S …………………… Distt ……………. I hereby serve you this notice under S. 80 C.P.C and state that my aforesaid client intends to sue the Government of …………………… on expiry of two months, after service of this notice, on the cause of action and for reliefs appearing herein below:
(a) Cause of action (facts of the case)
(b) Relief claimed
Please note that a true copy of the present notice is retained in my office for future use and reference.
Yours faithfully,
Advocate.
Question 32.
In the light of judicial pronouncements, discuss the following: (Dec 2016)
(a) Genuineness of information of an offence as a condition precedent for registration of offence under the Code of Criminal Procedure, 1973.
(4 marks)
(b) Courts generally do not grant relief, if not prayed for. (4 marks)
Answer:
(a) Registration of FIR is mandated in Section 154 of the Criminal Procedure Code, 1973, which clearly lays down that;
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.
The provision of Section 154 of Code of Criminal Procedure, 1973 is mandatory.
Hence, the police officer concerned is duty-bound to register the case on receiving information disclosing cognizable offence. 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].
(b) A plain reading of Order VII Rule 7 makes it clear that it is primarily concerned with drafting of relief in a plaint. It is in three parts – the first part directs that the relief claimed by the plaintiff simply or in the alternative shall be stated specifically. It incorporates in the second part the well settled principle that it shall not be necessary to ask for general or other relief which may always be given as the Court may think just on the facts of the case to the same extent as if it has been asked for. The third part says that in regard to any relief claimed by the defendant in his written statement, the same rule shall apply.
Rule 7 of Order VII – Code of Civil Procedure, 1908 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. [Rajendra Tiwary, vs. Basudeo Prasad and Another, AIR 2002 SC 136]
The Supreme Court in Shehla Burney vs. Syed AH Mossa Raza has reiterated that no relief can be granted against a party unless it has been specifically claimed in the suit or petition, as mandated by Order VII Rule(s) 5 & 7 of the Code of Civil Procedure.
Rule 8 of Order VII – Code of Civil Procedure, 1908 says that if the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as may be separately and distinctly.
Question 33.
Explain, with example, the scope of interlocutory applications filed by the parties in courts. Cite applicable law, if any. (Dec 2016, 4 marks)
Answer:
“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.
Interlocutory orders may take various shapes depending upon the requirement of the respective parties during the pendency of the suit. Applications for appointment of Commissioner, Temporary Injunctions, Receivers, payment into court, security for cause etc.
Question 34.
Comment on the following: (June 2017)
(a) FIR can be lodged with the Police Station only in case of cognizable offences. What do you understand by non-cognizable offences?
(b) Decree has been awarded by the court. Advice on information required for making written application for execution of decree. (5 marks each)
Answer:
(a) Section 154 of the Criminal Procedure Code, 1973 deals with cognizable offence. It provides that:
(i) Every information relating to the Commission of a cognizable offence, if given orally to an officer in-charge of a police station, it shall be reduced in writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing, or reduced in 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.
(ii) A copy of the information so recorded shall be given forthwith, free of cost to the informant.
(iii) A person aggrieved by refusal on the part of the Police Officer to record the said information, may send the substance of such information by post to the Superintendent of Police concerned.
The provisions of Section 154 are mandatory and the concerned Police Officer is duty bound to register the case on receiving information disclosing cognizable offence.
Non Cognizable Offence
- A non-cognizable case means, ‘a case in which, a police officer has no authority to arrest without warrant.’
- These offences are not much of serious in nature. Example: Assault, Cheating, Forgery, Defamation.
- Section 155 of Cr. P.C. provides that in a non-cognizable offence or case, the police officer cannot receive or record the FIR unless he obtains prior permission from the Magistrate.
(b) Every application for the execution of a decree shall be in writing signed and verified by the applicant or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely:
- The No. of the suit
- The names of the parties
- The date of the decree
- Whether any appeal has been preferred from the decree
- Whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree.
- Whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results.
- The amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross decree, whether passed before or after the date of the decree sought to be executed.
- The amount of costs (if any) awarded.
- The name of the person against whom execution of the decree sought.
- The mode in which the assistance of the court is required, whether:
(a) By the delivery of any property specifically decreed
(b) By the attachment or by the attainment and sale or by the sale without attachment of any property
(c) By the arrest and detention in prison of any person
(d) By the appointment of a receiver
(e) Otherwise, as the nature of the relief granted may require.
Question 35.
FIR can be lodged with the Police Station whereas a complaint is to be made to the Magistrate. (June 2017, 4 marks)
Answer:
Section 154 Criminal Procedure Code, 1973 deals with information in cognizable cases. 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. Such information is called FIR. A copy of the first information report shall be given forthwith, free of cost, to the informant.
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.
However, a 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 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.
Question 36.
Deficiency in pleading would not affect case of Plaintiff. State the points to be considered for supporting the above statement. (June 2017, 4 marks)
Answer:
In normal circumstances the pleading has to be complete in all respects. However, deficiency in pleading would not affect the case of the plaintiff in the following circumstances:
(a) Parties are related to each other and know everything in respect of facts and figures of the case.
(b) No element of surprise has been caused to the other party.
(c) Parties understood the case and lead evidence accordingly.
This was decided in Kailash Chandra v. Vinod, AIR 1994 NOC267(MP).
Question 37.
You are not happy with the judgement issued by the court. The client has approached the lawyer to file an application for review of the judgement. Draft an application for review of the judgement. (June 2017, 8 marks)
Answer:
Application for review of a judgement
(Under Or. 47, r. 1 of C.P. Code)
A.B. ………………….. …………………………. Plaintiff.
Versus
1. C.D.
2. E.F. ………………………… Defendants
The above-named defendants most respectfully sheweth:
1. That the plaintiff instituted a suit against the petitioner-defendants in this court and obtained a judgment and a decree in his favour on
2. That no appeal is allowed against the said judgment/decree by law. (Or, no appeal has been preferred against the said decree/judgment).
3. That the defendants are aggrieved with the said judgment/decree and pray for review of the said judgment/ decree on the following, amongst others,
Grounds
(a) Discovery of new and important matter or evidence.
(b) Discovery of some mistake or error apparent on the face of the record.
(c) Any other sufficient reason.
It is, therefore, prayed that Your Honour may be pleased to:
(i) set aside the judgment;
(ii) re-hear the suit and pass judgment accordingly.
Question 38.
What is an affidavit? What are the rules that should be remembered while drafting an affidavit? (Dec 2017, 2 + 4 = 6 marks)
Answer:
An affidavit being a statement or declaration on oath by the deponent, is an important document. Therefore, great care is required in drafting it. The consequences of a false affidavit are serious. The following rules should be remembered when drawing up an affidavit:
1. Not a single allegation more than is absolutely necessary should be inserted;
2. The person making the affidavit should be fully described in the affidavit;
3. An affidavit should be drawn up in the first person;
4. An affidavit should be divided into paragraphs, numbered consecutively and as far as possible, each paragraph should be confined to a distinct portion of the subject;
5. Every person or place referred to in the affidavit should be correctly and fully described, so that he or it can be easily identified;
6. When the declarant speaks of any fact within his knowledge he must do so directly and positively using the words “I affirm” or “I make oath and say”;
7. Affidavit should generally be confined to matters within the personal knowledge of the declarant and if any fact is within the personal knowledge of any other person and the petitioner can secure his affidavit about it, he should have it filed.
8. When the application or opposition thereto rests on facts disclosed in documents or copies, the declarant should state what is the source from which they were produced and his information and belief as to the truth of facts disclosed in such documents;
9. The affidavit should have the oath or affirmation written out at the end. An affidavit has to be drawn on a non-judicial Stamp Paper as applicable in the State where it is drawn and sworn.
An affidavit shall be authenticated by the deponent in the presence of an Oath Commissioner, Notary Public, Magistrate or any other authority appointed by the Government for the purpose.
10. Affidavits are chargeable with stamp duty Under Articles 4, Schedule I, Stamp Act, 1899. But no stamp duty is charged on affidavits filed or used in Courts. Such affidavits are liable to payment of Court fee prescribed for the various Courts.
Question 39.
Draft a notice of Suit Under Section 80, Code of Civil Procedure against a Public Officer of Government of Uttar Pradesh. Assume Data. (Dec 2017, 8 marks)
Answer:
Notice of suit under Section 80, C.P. Code against a Public Officer of a State Government or Central Government
Registered with A/D
Dated …………………
The …………………. 20 ……………….
To
…………………………..
(Name & official designation)
P.O. ………………………
Dt. …………………….
Notice under Section 80 of the Code of Civil Procedure
Dear Sir,
Please take notice that my client …………………… son of ……………………. residing at …………………… intends to bring a suit against the (state here the office the intended defendant holds), a Public Officer of the Government of (state the name of the province or simply, of the Government of India, as the case may be) in a competent court of law on the cause of action stated herein-under and for reliefs appearing below:
Cause of action for the intended suit …………………………..
Reliefs sought for ……………….
Yours faithfully,
Advocate.
Question 40.
Explain the following : (June 2018)
(a) Interlocutory orders (4 marks)
(b) Objects of Pleadings (4 marks)
Answer:
(a) Interlocutory Orders
Interlocutory refers to an order, sentence, decree or judgment, given in an intermediate stage between the commencement and termination of a cause of action, used to provide a temporary or provisional decision on an issue. 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 Code of Civil Procedure, 1908. Interlocutory orders may take various shapes depending upon the requirement of the respective parties during the pendency of the suit. Applications for appointment of Commissioner, Temporary Injunctions, Receivers, payment into Court, Security for cause etc.
(b) Objects of Pleadings
The present day system of pleadings in our country is based on the provisions of the Civil Procedure Code, 1908 as amended/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. Pleadings generally mean either a plaint or a written statement.
The main objective behind formulating the rules of pleadings is to find out and narrow down the controversy between the parties.
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 cause of action must take (Ganesh Trading v. Mojiram, AIR 1978 CS 484.)
The whole object of pleading is that each side may be fully alive to the questions that are about to be argued in order that they may have an opportunity of bringing forward such evidence as may be appropriate (Lakshmi Narayan v. State of Bihar, AIR 1977 Patna 73.)
The fundamental rule of pleadings is contained in provisions of order 6 Rule 2 of the Civil Procedure Code, which enjoins :
- Every Pleading shall contain only 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.
- Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively each allegation being, so far as is convenient, contained in a separate paragraph.
- Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.
Question 41.
Explain the provisions of Appeal under Civil Procedure Code, 1908. What points are to be considered while drafting an appeal ? (June 2018, 8 marks)
Answer:
“Appeal” has not been defined in the Code of Civil Procedure, 1908 yet any application made by a party to an appellate forum asking it to set aside or revise a decision of a subordinate forum. A right of appeal is not a natural or inherent right but is a creature of a statute.
It is the statute alone to which the Court must look to determine whether a right of appeal exists in a particular instance or not. The right of appeal is not a matter of procedure, but is a substantive right and can be taken away only by a subsequent enactment, if it says so expressly or by necessary intendment and not otherwise.
An appeal may be dividend into 3 parts :
- Formal part known as memorandum of appeal
- Material part or grounds of appeal
- Relief sought for
The memorandum of appeal must contain the name of the Court in, which it is filled, the number of the appeal and year in which it is filed. Then follows the names and address of the parties concerned. Thereafter, the grounds of appeal may be listed out.
While drafting the grounds of appeal,
- Grounds of objection should be written distinctly and specifically;
- They should be written concisely;
- They must not be framed in a narrative or argumentative form; and
- Each distinct objection should be stated in a separate ground and the grounds should be numbered consecutively.
It is an established practice to mention in the memorandum of the appeal, the relief sought by the appellant. It may be signed by the appellant himself or by his counsel. If there are several appellants and no counsel, it need to be signed by all of them. It is not required to be verified.
Question 42.
Comment on the following statement:
Essentials of a Written statement. (Dec 2018, 5 marks)
Answer:
- It is necessary for 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 Order 8, Rule.10 of Civil Procedure Code, 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 worked in a manner so as to advance justice (Mehar Chand v. Suraj Bhan, A.I.R. 1971 Punj. 435).
- When the defendant appears and files a written pleading by way of defence, his pleading should conform to all the general rules of pleading laid down in the preceding paras.
- A next pleading filed by the plaintiff, either in reply to a defendants’s claims of set off, or with leave of the Court, in answer to defendant’s pleas in defence, is also called a “written statements” (also called Replication or Rejoinder.
- All the rules relating to defendant’s written statement apply, mutatis mutandis to such written statement of the plaintiff also.
Question 43.
Explain the following :
Requisites of a complaint along with relevant case laws. (Dec 2018, 4 marks)
Answer:
A complaint in a criminal case is what a plaint is in a civil case. The requisites of a complaint are:
- an oral or a written allegation;
- some person known or unknown has committed an offence;
- it must be made to a magistrate; and
- it must be made with the object that he should take action.
There is no specific format of a complaint.
A petition addressed to the Magistrate containing an allegation that an offence has been committed, and ending with a prayer that the culprit be suitably dealt with is a complaint.
Complaint need not be presented in person. A letter to a magistrate stating facts constituting an offence and requesting to take action tantamounts to a complaint.
Question 44.
Draft a Bail application on behalf of the Director of a company who has been falsely implicated for financial irregularities in the company. Assume data if required. (Dec 2018, 8 marks)
Answer:
Specimen Bail Application
In the Court of ………………… Magistrate ………………….
The State ………………….
Versus
Accused XY son of AB village:
Thana ………………….
In the matter of petition for bail of accused
XY, during police enquiry
The humble petition of
XY the accused above-named
Most respectfully says:
1. That your petitioner was arrested by the police on 4lh November, 2018 on mere suspicion. That more than 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 Auditor of LKY Ltd. Where the financial bungling is alleged to have taken place, nor was any incriminating document found in his office or residence.
3. That your petitioner has not dealt any banking or financial transaction during the last one year and moreover, there is very strict internal control system in the company.
4. That the company has formed a committee and the internal committee has already placed a report before the management. There is no allegation against the petitioner so far.
5. That your petitioner has reason to believe that one GS with whom your petitioner is on bad terms and who is looking after the case for complainant has falsely implicated your petitioner in the case out of grudge.
6. That your petitioner shall fully co-operate with the police.
7. That your petitioner is not likely to abscond or leave the country.
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 every pray.
Advocate XY
Verification
I. XY, son of AB, residing at ……………………. by occupation business, do hereby solemnly affirm and say as follows:
- 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.
- The statements in Paragraphs 1 to 7 of the foregoing petition are true and correct to my knowledge and belief.
- I sign this verification on the 6th day of January, 2019.
Solemnly affirmed by the said XY
On 6th day of January, 2019 at the Court
House at ………………….. X Y.
Before me
Notary/Magistrate
Question 45.
Draft an Affidavit of a creditor in proof of his debt in proceeding for the liquidation of Company. Assume data. (Dec 2018, 8 marks)
Answer:
IN THE (HIGHT) COURT OF ………………….
The matter of the Companies Act, 2013
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 ………………….. 2018, the date of the order for winding up the same, and still is justly and truly indebted to me in the sum of ₹ ………………….. (Rupess ……………….. 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 of persons by my order or to my knowledge or belief for my use, received the aforesaid sum of ₹ …………………. or any part thereof, or any security or satisfaction for the same or any part thereof except the sum of security (state the exact amount of security).
4. That this my affidavit is true, that it conceals nothing and no part of it is false.
Sd/- A.B.
Dated …………………… Deponent
Verification
I, the above named 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 ……………….. 2018 of ………………… (time) by the deponent.
Sd/ …………………….
(Oath Commissioner)
Question 46.
Explain the following : (June 2019)
(a) Draft a specimen affidavit for issue of duplicate Share Certificate, as the original Share Certificate issued by the Company has lost. Assume data.
(b) Deficiency in Pleadings would not affect the Plaintiffs Case. Discuss with reference to relevant case laws. (4 marks each)
Answer:
(a)
Affidavit
(On stamp paper of ₹ 10/- or above)
I ____________ S/o or D/o ___________ R/o _________ do hereby solemnly affirm and declare oath as under:
- That I am a Shareholder of ___________ Ltd, holding.1000 Equity shares having Folio No _________; Certificate No. _________ and distinctive nos. ___________ to __________.
- That the said share certificates, covering the above said shares have been lost.
- That the FIR has been registered in P.S. vide no. dated
- That I have not sold and / or transferred the said shares in favour of any other person or persons.
- That I have not pledged, created any charge or encumbrance on said shares in favour of any person or persons.
- That I have filed a request to the Company viz ___________ duplicate certificate for the said shares.
Verification
I, the above named deponent, verify that the contents of paragraphs 1 to 6 of this affidavit are true to my Personal knowledge and belief.
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 ……………….. 2013 of ………………… (time) by the deponent.
Sd/- ……………………
(Oath Commissioner)
Question 47.
Draft a Specimen Petition by wife under Section 125 Cr.. P.C. 1973 for maintenance. (June 2019, 8 marks)
Answer:
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)
Daughter of ……………….
Village………………….
Thana ………………..
Occupation ………………..
versus
Opposite Party H (husband)
Son of ………………….
Village………………….
Thana ………………..
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 ………………..
2. The opposite party H is a clerk on the staff of AB & Co. Ltd. holding a responsible position and drawing salary of ₹ 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, infidelity and debauchery. Besides, he is a man of uncertain temperament and would fly into rage 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 with his family members.
6. The opposite party was served with a pleader’s notice to send your petitioner ₹ 2,000 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 ₹ 2,000 per month.
And your petitioner, as in duty bound, shall ever pray.
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. Won the ……………… day of ……………….. 2013 in the Court House at Calcutta
Before me Notary
Question 48.
Draft the following as per the instructions :
A sample FIR assume facts. Comment “Genuineness or creditability of the information is not a condition precedent for FIR”. (Dec 2019, 4 marks)
Answer:
Specimen Form of First Information Report
To
The Officer-in-Charge …………………….. (Name of the Police Station)
Sir
This is to inform you that my cycle has been stolen from the cycle stand in the daily market last evening. Last evening, before I went to the market, I placed my green model Hero Cycle in the cycle stand No. 1 as usual. I had locked the cycle. The cycle bears the No. ……………….. I had bought it only a month ago and it was almost new. The cycle had a full gear case, a carrier and a side basket. When such mishap occurred I was buying vegetables in the market. I asked everybody who were present there about the cycle. It was all in vain. I request you to kindly register a case of theft and initiate the necessary investigation to recover the stolen cycle.
Yours faithfully,
___________ (Your Name)
In Lallan Chaudhary and Ors v. State of Bihar, AIR 2006 SC 3376, the Supreme Court held that section 154 of the Cr.P.C 1973 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 of the Cr. P.C 1973 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.
The provision of Section 154 of the Cr. P.C 1973 is mandatory. Hence, the police officer concerned is duty-bound to register the case on receiving information disclosing cognizable offence. 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].
Question 49.
(a) A civil suit was filed without disclosing the cause of action in the Plaint and the Honorable Court rejects the Plaint. Comment and advise the plaintiff for remedial measures, if any. (Dec 2019) (4 marks)
(b) An application for revision had been made before the Sessions Judge, can another revision be filed before High Court? Whether application of revision can only be filed directly before the High Court ? (4 marks)
Answer:
(a) Order 7, Rule 11 of the Code of Civil Procedure provides for rejection of plaint on the following grounds:
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalues and the plaintiff on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law;
(e) Where it is not filed in duplicate;
(f) Where the plaintiff fails to comply with the orders of the court that the summons are to be served on the defendants, directing the plaintiff to present as many copies of the plaint on plain paper as there are defendants within seven days from the date of such order along with requisite fee for service of summons on the defendants.
Further, as per Order 7, Rule 13 of the Code of Civil Procedure, the rejection of plaint on any of the grounds mentioned above, shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of same cause of action.
Therefore, the court has power to reject the plaint where it does not disclose the cause of action. However the rejection of plaint on non-disclosure of cause of action does not of its own force bar the Plaintiff from presenting a fresh plaint. The plaintiff can present a fresh plaint.
(b) Section 397(3) of the Code of Criminal Procedure, 1973 states that if an application under this section has been made by any person for the revision either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
Since the application for revision is already made before the Session Judge the same cannot be filed before the High Court.
A person can directly move a revision application to the High Court without first approaching the Session Court. But if he has already filed the application before the Session Court, he cannot thereafter approach High Court for another revision.
Question 50.
Enumerate the different stages of a criminal trial in a Warrant case when instituted by Police Report. (Dec 2020, 4 marks)
Answer:
Under Section 2(x) of Code of Criminal Procedure, 1973 a warrant case is one which relates to offences punishable with death, imprisonment for life or imprisonment for a term exceeding two years. The trial in warrant cases starts either by the filing of FIR in a police station or by filing a complaint before a Magistrate.
Different Stages of Criminal Trial in a Warrant Case when instituted by the police report:
(1) First Information Report: As for Section 154 of the Code of Criminal Procedure, 1973 an FIR or First Information Report is registered by any person. FIR puts the case into motion. An FIR is information given by someone (aggrieved) to the police relating to the commitment of an offense.
(2) Investigation .-The another step after the filing of FIR is the investigation by the investigating officer. A conclusion is made by the investigating officer by examining facts and circumstances, collecting evidence, examining various persons and taking their statements in writing and all the other steps necessary for completing the investigation and then that conclusion is filed to the Magistrate as a police report.
(3) Charges : If after considering the police report and other important documents the accused is not discharged then the Court frames charges under which he is to be tried. In a warrant case, the charges should be framed in writing.
(4) Plea of guilty : Section 241 of the Code of Criminal Procedure, 1973 talks about the plea of guilty. After framing of the charges the accused is given an opportunity to plead guilty, and the responsibility lies with the judge to ensure that the plea of guilt was voluntarily made. The judge may upon its discretion convict the accused.
(5) Prosecution evidence: After the charges are framed, and the accused pleads not guilty, then the court requires the prosecution to produce evidence to prove the guilt of the accused. The prosecution is required to support their evidence with statements from its witnesses.
(6) Statement of the accused : Section 313 of the Criminal Procedure Code, 1973 gives an opportunity to the accused to be heard and explain the facts and circumstances of the case. The statements of accused are not recorded under oath and can be used against him in the trial.
(7) Defence evidence : An opportunity is given to the accused to produce evidence so as to defend his case. The defence can produce both oral and documentary evidence.
(8) Judgement : The final decision of the Court with reasons given in support of the acquittal or conviction of the accused is known as judgement. In case the accused is acquitted, the prosecution is given time to appeal against the order of the court.
Question 51.
What do you understand by the term “Cause of Action”. Why is this most important part of plaint? (Dec 2020, 4 marks)
Answer:
The term Cause of Action refers to a set of facts or allegations that make up the grounds for filing a lawsuit. A Cause of Action is therefore by its very nature essential to a suit, since without a Cause of Action a Civil Suit cannot arise.
‘The Cause of Action’ is that part of the Plaint which explains the background upon which the differences and disputes arose between the plaintiff and the defendant. In fact, the part of the plaint is the most important part, which explains the basis of the fight between the plaintiff and the defendant.
Further this will reveal the agreement, relationship between them, when the breach started, where is happened and whether the suit is filed within the limitation period etc.
To win a case the Plaintiff must prove the major legal points of the case lie in his favour; these are called the “elements” of that cause of action. For instance, for a claim of negligence, the elements are: the (existence of a) duty, breach (of that duty), proximate cause (by that breach), and damages.
If a plaint does not allege facts sufficient to support every element of a claim, the Court, upon motion by the opposing party, may dismiss the plaint for failure to state a claim for which relief can be granted.
The defendant to the Cause of Action must file a Written Statement to the plaint in which, he may admit or deny the claims made by the plaintiff and give his proof for the same and his written arguments to show how the law supports him.
The Written Statement (WS) may also contain counterclaims in which the states its own causes of action.
Lastly, the answer may contain affirmative defences. Almost all defences must be raised at the first possible opportunity either in the Written Statement or by motion, else they are deemed waived by the court.
Question 52.
Define affidavit. Draft a specimen affidavit of creditor in proof of the debt in proceeding for liquidation of a company. Assume facts. (Dec 2020, 6 marks)
Question 53.
Draft a specimen Bail application U/s 437 of Criminal Procedure Code, 1973. Assume facts if necessary. (Dec 2020, 8 marks)
Answer:
Specimen Bail Application under Section 437, Cr.P.C. 1973.
In the Court of ………………… Magistrate ………………..
…………….. State ……………..
Versus
Accused CD son of LK, Aged: ………………… R/o …………………
Police Station: ………………………..
FIR No.: …………………..
In the matter of petition for bail of accused CD, during police enquiry The humble petition of CD the accused above-named.
Most respectfully showeth:
1. That your petitioner was arrested by the police on 15th March 20 ………………… on mere suspicion. It is further stated 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.
3. That your petitioner has reason to believe that one MN with whom your petitioner is on bad terms and who is looking after the case for complainant has falsely implicated your petitioner in the case out of grudge.
4. That your petitioner shall fully co-operate with the police/investigating Agency, if any.
5. That your petitioner is not likely to abscond or leave the country. The petitioner further undertakes to comply with other conditions of grant of bail passed by this Hon’ble Court.
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 CD
Verification
I, CD, son of LK, 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 ¡n 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 CD on ……………………. at the Court House at ………………. CD .
Before me
Oath Commissioner / Notary / Magistrate.
Question 54.
Draft an application for Caveat U/s 148A of Civil Procedure Code, 1908 on a service matter with assumed facts. (Dec 2020, 8 marks)
Answer:
In the Court of the …………………………..
CAVEAT APPLICATION NO. …………………/20 …………
In the matter of:
A.B. S/o of C.D.
R/o ………………….. Caveator-Petitioner
Versus
Steel Authority of India Ltd(SAIL)
…………………………………
Respondent /Opposite Party
Most Respectfully Showeth:
1. That the caveator / petitioner was illegally terminated by the Respondent/Opposite Party from the post of Asst. Manager which was challenged before the Ld. Civil Judge ………………….
2. That the Ld. Civil Judge by his judgment dated ……………………. set aside the order of termination by further directing the respondent to reinstate the petitioner/ caveator with back wages. The copy of the said judgment is annexed herewith
3. That the petitioner reasonably apprehends that the respondent might file appeal against the said judgment and try ex parte order against the petitioner.
4. That the petitioner hereby lodges a caveat to the effect:
‘Let nothing be done in the foresaid matter without notice to the petitioner’. Caveator-Petitione.
Question 55.
Illustrate the exceptions to the general rule of pleadings that pleading must state material facts only. (Aug 2021, 5 marks)
Answer:
The second fundamental rule of pleading, namely, that every pleading musl state all the material facts and the material facts only is subject to the following well known exceptions:
i) Condition Precedent: The performance of occurrence of any condition precedent need not be pleaded as its averments shall be 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. This follows from the provision contained in Order VI Rule 6 C.P.C. which runs thus:
“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, as the case may be; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.”
ii) Presumption of Law: Order VI Rule 13, C.P.C., provides that 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. For example in a suit on a promissory note the plaintiff need not allege consideration as Section 118 of Negotiable Instruments Act, 1881 raises a presumption in his favour. It is also not necessary to state that the defendant executed the bond of his own free will and without any force or fraud because the burden of proving any fact invalidating the bond lies upon the defendant.
iii) 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.
Question 56.
Draft a specimen plaint of a suit for the arrears of rent. Assume facts. (Aug 2021, 4 marks)
Answer:
Suit for Arrears of Rent
In the Court of Small Cause, ……………… Suit No. ……………. Of …………….
(Space for Court-fee Stamp)
AB S/o CD Age ……… Resident of ………………… Plaintiff
Versus
PQ S/o RS Age …………….. Resident Of ……………… Defendant
Suit for Ejectment, Arrears of Rent and Mesne Profits
The above-named plaintiff states as follows:
1. That the plaintiff is the owner of the house no. ……………… situated at ……………….. and bounded as below: – Boundaries of the Houses.
2. That under verbal agreement made on ……….. 20 ……………… the defendant became a monthly tenant to the plaintiff in respect to the house described in paragraph 1 above at the rent of Rupees Per month and has been in occupation of the said house as such tenant since the above mentioned date of the agreement.
3. That the defendant has not paid the rent w.e.f ………………..
4. That the plaintiff duly determined the said tenancy by serving on the defendant, by registered post on (Date)…………….. a notice to quit the said house within thirty days of the receipt of the notice and pay the entire arrears of rent from (Date) ………….. It is submitted that the said notice was served upon the defendant on (Date) ………………… yet the defendant has not vacated the house, nor has he paid the said arrears of rent or any part thereof. Hence the defendant is liable to Ejectment under section …………………
5. That now a total sum of Rupees ………. is due to the plaintiff as against the defendant, that is Rupees ……………….. on account of arrears of rent from (Date) ……………….. to (Date) ………………, and Rupees …………. On account of damages for use and occupation from (Date) …………… to (Date), the date of filing the suit.
6. That the cause of action for the said arose on (Date) …………….., when the period stipulated in the said notice expired.
7. That the defendant resides at …. within the jurisdiction of this Honourable court.
8. That the valuation of the suit for the purpose of jurisdiction and payment of courtfee is Rupees …………………. the requisite court fee has been paid.
Wherefore the plaintiff claims –
(a) That the decree for Ejectment of the defendant from the house described in paragraph 1 above be passed in favour of the plaintiff as against the defendant.
(b) That the decree of Rupees on account of arrears of rent from (Date) ………………….. to (Date) …………….. be passed in favour of the plaintiff.
(c) That a decree for Rupees …. on account of damages for use and occupation at the rate of Rupees per month from (Date) …………….., to (Date) ………………, the date of suit, be passed in favour of the plaintiff as against the defendant.
(d) That a decree for further damages for use and occypation at the aforesaid rate till the Ejectment of the defendant be passed in favour of the plaintiff as against the defendant on payment of additional court-fee.
(e) That cost of the suit be allowed to the plaintiff.
Place: ………………… AB
Date: ……………… Plaintiff
Through
Advocate
Verification
I, AB, the aforesaid, plaintiff, do hereby verify the contents of paragraphs ………….. and ………………. of the above plaint are true to my personal knowledge and the contents of the paragraphs and , I believe to be true on information received.
Signed and verified this ……………… day of. 20 …………….., at ………….
AB
Plaintiff
Question 57.
Facta probanda and Facta probantia. (Dec 2021, 4 marks)
Answer:
The material facts on which the party pleading relies for his claim or defence are known as facta probanda and the facts by means of which the material facts are to be proved are known as facta probantia.
(i) Facta probanda : The facts which are to be proved. These are the facts on which a party relies and are ought to be stated in the pleading.
(ii) Facta probantia : These are the facts which are not to be stated because by their means facta probanda are proved. So these facts are the evidence as to the existence of certain facts on which the party relies for his cause of action or defiance as the case may be.
Facta probanda are not facts in issue, but they are relevant in that at the trial their proof will establish the existence of facts in issue. No doubt in certain cases both the facts in issue and there facts in evidence are mixed up and are almost indistinguishable. They should not be stated in the pleading.
For example, M was married to N in accordance with a particular custom governing marriage between M and N. In this case the custom” is both a fact in issue and a fact in evidence, because once the custom is proved, then the marriage also, stands proved. In the pleading it is sufficient to allege that the marriage was celebrated in accordance with a particular custom. At the evidence stage, it will be sufficient to refer to the manual of customary law which records customs.
Question 58.
In the light of Judicial pronouncement(s) discuss the following:
There is no particular format for making Complaint. (Dec 2021, 4 marks)
Answer:
No particular format for making complaint:-
- There is no particular form for narration of the incident in the body of complaint.
- It is sufficient if it contains a valid and correct description how and in what manner the offence was committed.
- Only facts which are connected with the incident have to be stated in the Complaint.
- Facts which can prove involvement of the accused in the offence should also be mentioned.
- The petition of complaint must disclose the names of the witnesses of the offence.
- A petition addressed to the Magistrate containing an allegation that an offence has been committed, and ending with a prayer that the culprit be suitably dealt with is a complaint.
- Complaint need not be presented in person. A letter to a Magistrate stating facts constituting an offence and requesting to take action is a complaint.
- Police report is expressly excluded from the definition of complaint but the explanation to section 2(d) of the Code of Criminal Procedure, 1973 makes it clear that such report shall be deemed to be a complaint where after investigation it discloses commission of a non-cognizable offence.
- Police report means a report forwarded by police officer to a Magistrate section 173(2) of the Code of Criminal Procedure, 1973.
Question 59.
Draft the following as per the instructions (Assume facts, if required):
Specimen Affidavit of creditor in proof of his debt in proceeding for liquidation of a company. (June 2022, 4 marks)
Question 60.
Draft a specimen written statement of a suit for ejectment and arrears of rent. Assume facts as required. (June 2022, 6 marks)
Question 61.
Vijay is holding 10,000 shares of Kamal Ltd., a listed company, in physical form. The price quoted for the share in stock exchange is ₹ 1,100. Due to change of house, Vijay could not locate the shares. He wrote to the Company Secretary of Kamal Ltd. for issue of duplicate share certificate. The company asked the following documents from Vijay to consider the request for issue of duplicate share certificate :
(a) A copy of FIR;
(b) An affidavit on a stamp paper of ₹ 10;
(c) An indemnity bond on a stamp paper of ₹ 300 to be executed by the shareholder to the effect that in case the company suffers any loss due to issue of duplicate share certificate, the shareholder will indemnify the company to make the loss good; and
(d) Since the value is large, a surety bond from a person other than the relative of the shareholder to make the loss good in case of any eventuality.
Draft
(i) an FIR;
(ii) an affidavit;
(iii) an indemnity bond; and
(iv) surety bond on the basis of facts given above. You may imagine the
facts/data wherever necessary. (June 2016, 4 marks each)
Answer:
(a) To
The Officer-in-charge
………………… (name of police station)
Sir,
This is to inform you that I have lost the physical shares certificate of Kamal Ltd., representing 10,000 shares at my house. The same was lost due to change of house. Tie details are mentioned below:
I request you to register an FIR and provide a copy of the same.
Yours Faithfully,
Vijay ………………….
(b) Affidavit
(on stamp paper of ₹ 10/-)
I Vijay ………….., S/o ………………. R/o …………….. am a shareholder of Kamal Ltd. and hold 10,000/- equity shares of the company as detailed below:
I do solemnly and sincerely swear and state as under:
- That the said share certificate(s), covering the said shares have been lost and it is not in my possession.
- That FIR has been registered in …………………… P.S vide no …………….. dated ………………
- That I have not transferred the said shares or any of them in favour of any other person and I have not executed any instrument of transfer for the said share(s) in favour of any person.
- That I have not created any charge or encumbrance on the said share in favour of any person.
- That I have filed a request to the company viz. Kamal Ltd. to issue duplicate certificate(s) for the said shares.
Name of Shareholder
Signature of Shareholder
(c) Indemnity Bond for Duplicate Share Certificate
I am Shareholder of Kamal Ltd., having its Registered Office at ………………….. and hold 10,000 equity shares of the face value ₹ ……………… each, as per the details below:
The share certificate in respect of the said shares had/have been lost. The said shares were not pledged nor I have assigned the interest in the same to anyone. I am the sole and absolute owner of the said shares.
I have therefore requested the company for issue of duplicate share certificates(s) in lieu of the original shares covered under Folio No. ……………….. and bearing Certificate No(s). ………………. held by me.
In consideration of the company so doing, I do hereby agree to indemnify the Company against any claims, charges, costs, damages and loses which the said company, may sustain, incur or be liable in consequences or in relation to issuance of duplicate share certificate(s) at my request. I further undertake to surrender the said share certificate(s) to the company if and when the same are found at a later date.
In witness whereof I signed this ………………… day of June, 2016-06-11.
Name and address of the Shareholder(s) Signature of the Shareholder(s)
Name and address of Witness Signature of the Witness
(d) Surety Bond
This surety bond made this ………………. day of …………….. by Sri ………………… Son of ……………… resident of ………………… (hereinafter called the surety) on one part and Shri Vijay, Son of ……………….. resident of ………………… (hereinafter called the principal).
Whereas the principal has lost the physical shares certificate of Kamal Ltd. representing 10,000 shares at his house. The same was lost due to change of house.
The details are mentioned below:
The principle has therefore requested the company, Kamal Ltd. for issue of duplicate shares certificates(s). The price quoted forthe share in stock exchange is ₹ 1,100/-. Since the value is large, a surety bond was requested by the company.
Therefore in consideration of the company issuing duplicate shares, the surety hereby agree to Indemnify the Company against any claims, charges, costs, damages and loses which the said company, may sustain, incur or be liable in consequences or in relation to issuance of duplicate share certificate(s) at the request of principle.
IN WITNESS WHEREOF, the parties hereto have hereunto set and subscribed their respective hands and seals the day, month and the year first above-written.
Signed, sealed and delivered in the presence of
1.
2.
Surety
Principal
Question 62.
VT Ltd. instituted a suit against KA Furnitures Ltd. for breach of contract for supply of 200 study tables priced at ₹ 500 per table, on the following three counts:
(i) KA Furnitures Ltd. did not supply full order within the stipulated time of three months from the date of contract.
(ii) The wood used for making the tables was not as per agreed specifications, instead of sheesham wood, neem wood was used.
(iii) Legs of 50 tables were found bent and weak.
All this occasioned a heavy loss of ₹ 25,000, which was claimed with interest @ 10% per annum and costs in the suit against defendants. – The defendant, KA Furnitures Ltd., refuted the claim made in the plaint by stating in written statement that “the defendant generally denies the allegations made by plaintiff as got up and unsustainable”. Explain with reasons whether this defense would sustain in courts. (Dec 2016, 8 marks)
Answer:
It is necessary that one has to deny the averment of the plaint/petition which are incorrect or false. In case any averment contained in any paragraph of the plaint is not denied specifically, it is then presumed to have been admitted by the other party. (Order 8, Rule 5 of Code of Civil Procedure).
It must be borne in mind that the denial has to be specific and not evasive or general. (Order 8, Rules 3 & 4 of CPC). This has been reiterated in Dalvir Singh Dhilowal v. Kanwaljit Singh 2002 (1) Civil LJ 245 (P&Hy, 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.]
It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
Thus, where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance.
In the light of the above, the general refutation and denial made by KA Furniture Ltd. against the specific averments of VT Ltd. are not valid.
Question 63.
In a pending suit for recovery of possession of house, the defendant filed written statement denying plaintiff’s right of recovery. A list of four witnesses, two of whom were employees of Municipal Corporation was also filed. It was approved by the court. Summons to two defence witnesses (DWs) were issued by court. They were duly examined. But the court, in a cryptic unreasoned order, refused to summon remaining DWs with public record in defense of the defendant, and closed the evidence stage.
Draft a specimen revision petition to cure this defect in the trial of the suit and, thus, to prevent the miscarriage of justice. Assume hypothetical data, if necessary. (Dec 2016, 8 marks)
Answer:
In the High Court of …………………………
Civil Appellate Jurisdiction
Civil Revision No ………………… of 2016
IN THE MATTER OF:
ABC S/o …………………………..
R/o …………………………..
……………. Petitioner
Versus
XYZ S/o ………………………..
R/o ………………………..
…………….. Respondent
AND
IN THE MATTER OF:
CIVIL REVISION AGAINST THE ORDER DATED ………………..
PASSED BY THE LEARNED SUB-JUDGE, 1ST CLASS …………………..
IN THE SUIT ENTITLED ABC -VS.- XYZ (CIVIL SUIT NO ………………… OF 2016)
May it please the Hon’ble Chief Justice, High Court of ……………… and his companion Justices.
The petitioner MOST RESPECTFULLY SHOWETH:
A. That the petitioner named above has filed a suit against the respondents for the recovery of possession of a house situated in ……………….. fully described in the plaint. The suit is pending in the court of Sub-Judge 1st Class ………………. and the next date of hearing is ……………………………………
B. That on being summoned the respondent appeared before the court below and filed his written statement wherein he denied the petitioner’s title set up in the suit property.
C. That the trial court framed issues on ………………….. and directed the petitioner (plaintiff) to produce evidence, upon which the petitioner promptly furnished to the court below a list of witnesses and also deposited their diet expenses etc., making a request that the witness be summoned by that Court.
D. That on a previous date of hearing that is …………………., 2016, two witness of the petitioner had appeared and their statements were recorded. However, the learned Presiding Officer of the court below passed an order that the remaining witnesses be produced by the petitioner-plaintiff on his own without seeking the assistance of the court. This order was passed despite a request by the petitioner that at least those witness named in the list who are State employees should be summoned by the court, as they are required to produce and prove some official records.
E. That on the next date of hearing the learned trial court by the order impugned in this revision closed the evidence of the petitioner-plaintiff on the ground that the remaining witnesses were not produced by him.
F. That the impugned order has caused great prejudice to the petitioner and if the same is allowed to stand the petitioner’s suit is bound to fail.
G. That the trial court has unjustifiably denied assistance of the court to the petitioner-plaintiff to secure the attendance of his witnesses. The interests of justice demand that he is provided with all legal assistance in this regard.
In the facts and circumstances discussed above the petitioner prays that this Hon’ble Court be pleased to quash and set aside the order under revision and direct the court below to provide assistance of the court for summoning the plaintiff-witnesses.
PETITIONER
Question 64.
‘A’ has filed a suit against ‘B’ for recovering possession of an agricultural land amounting to rupees 5 Lakh. ‘B’ contends that he is the owner of property and not a tenant. In first instance Court rejects the defence of ‘B’ and passes a decree for possession of property in Execution.
Now ‘B’ has filed an appeal against execution of decree. ‘B’ wants the execution of decree to be stayed. Draft an application as an advocate of ‘B’. You are at liberty to choose the necessary details. (Dec 2017, 10 marks)
Answer:
Application for stay of Execution
In the court of District Judge Karnal
Civil appeal number………………….. of 2017
B, S/o …………. R/o ………………..
Appellant
(Orig. Defendant)
V/S
A. S/o ……………….. R/o …………….
Respondent
(Orig. Plantiff)
This humble petition of the above named appellant is as under:
1. The appellant has filed this appeal against the judgement and decree passed by civil judge Karnal ordering possession of the agricultural land situated at ……………….. details ………………. to the Respondent.
2. The Respondent has been declared as the owner of property by the lower court.
3. The Respondent has filed an application for execution of decree in the lower court (Application No ……………. of 2017) before the civil judge attempting to take possession of the land. If this possession is granted to the respondent, the appellant will be put to an irreparable loss as material facts have been ignored by the learned judge while arriving at his decision against which appeal has been made in this honourable court vide No ………………… of 2017.
4. Appellant is prepared to tender such security to the satisfaction of the court for the performance of said decree.
5. The appellant therefore pray that execution of decree in suit no …………………… of 2017 be stayed during the pendency of this appeal.
Sd/-
Advocate
Sd/-
Appellant
Verification
Place:
Date:
Question 65.
‘A’, a landlord in Ahmedabad, engaged a servant to do household work, on a monthly salary of ₹ 5,000 plus food and clothing. After serving ‘A’ for a fortnight, the servant disappeared and it was found that the servant had taken away A’s gold watch, shirt with gold buttons, a purse which contained ₹ 20,000 and one silver flower pot.
Draft a complaint before First class Magistrate Ahmedabad. (Dec 2018, 8 marks)
Answer:
(a)
IN THE COURT OF FIRST CLASS MAGISTRATE,
AHMEDABAD
Case No. ________________
A, residing at ………………….. Complainant
versus
B, residing at ………………….. Accused
Charge : Theft by a servant under Section 381 of Indian Penal Code
May it please your honour,
I beg to state on oath as follows:
1. lam the landlord of a building in Ahmedabad. About a fortnight ago, I engaged the accused as domestic servant on a salary of ₹ 5,000 per month plus food and clothing. Yesterday, the accused suddenly disappeared. I made enquires and found my gold watch, shirt with gold buttons and purse containing ₹ 20,000 missing along with one silver flower pot. I at once lodged complain with the police.
2. I have made enquires from the accused’s place and have learnt that the accused is preparing to run away from Ahmedabad.
I therefore charge the accused as above, and pray for issue of a search warrant as well as warrant of arrest against him.
Sd/- A
Complainant
Before me
First Class Magistrate, Ahmedabad
Dated this 4th January, 2019
Question 66.
In a pending Suit defendant filed written statement denying Plaintiffs claim for right of recovery of building. In this process he filed list of five witnesses before the Hon’ble Court, three of whom were employees of City Development Authority. Court summoned three defense witnesses out of the list of five witnesses filed by the defendant and closed the evidence stage. Court passed a cryptic and unreasoned order.
With a view to cure this defect in trial of the suit and to prevent the miscarriage of justice, defendant decided to file Revision Petition. Draft a suitable Revision Petition taking into account the above facts and assume data, wherever required. (June 2019, 8 marks)
Answer:
SPECIMEN FORM OF REVISION
In the High Court of ………………….
Civil Appellate Jurisdiction
Civil Revision No…of 2018
IN THE MATTER OF:
ABC S/o …………………. R/o ……………………………….. Petitioner Versus
XYZ S/o ………………….. R/o ……………………………….. Respondent AND
IN THE MATTER OF:
CIVIL REVISION AGAINST THE ORDER DATED… PASSED BY THE LEARNED SUB-JUDGE, 1ST CLASS ………………… IN THE SUIT ENTITLED ABC -Vs. – XYZ (CIVIL SUIT NO. OF2013)
May it please the Hon’ble Chief Justice, High Court of…and his companion
Justices. The petitioner most respectfully showeth:
a. That the petitioner named above has filed a suit against the respondents for the recovery of possession of a house situated in…, fully described in the plaint (copy attached as Annexure -1). The suit is pending in the court of Sub-Judge 1st Class ………………….. and the next date of hearing is …………
b. That on being summoned, the respondent appeared before the court below and filed his written statement wherein he denied the petitioner’s title set up in the suit property.
c. That the trial court framed issues on ………………….. and directed the petitioner (plaintiff) to produce evidence, upon which the petitioner promptly furnished to the court below a list of witnesses, making a request that the witness be summoned by that Court.
d. That on a previous date of hearing that is…., two witness of the petitioner had appeared and their statements were recorded However, the learned Presiding Officer of the court below passed an order that the remaining witnesses be produced by the petitioner-plaintiff on his own without seeking the assistance of the court. This order was passed despite a request by the petitioner that at least those witness named in the list who are State employees should be summoned by the court, as they are required to produce and prove some official records.
e. That on the next date of hearing the learned trial court by the order impugned in this revision closed the evidence of the petitioner-plaintiff on the ground that the remaining witnesses were not produced by him.
f. That the impugned order has caused great prejudice to the petitioner and if the same is allowed to stand the petitioner’s suit is bound to fail.
g. That the trial court has unjustifiably denied assistance of the court to the petitioner-plaintiff to secure the attendance of his witnesses. The interests of justice demand that he is provided with all legal assistance in this regard.
In the facts and circumstances discussed above the petitioner prays that this Hon’ble Court be pleased to quash and set aside the order under revision and direct the court below to provide assistance of the court for summoning the plaintiff-witnesses.
PETITIONER
Question 67.
‘X’ filed a civil suit for eviction and possession of his property against ‘Y’, an unauthorized occupier. But the case was ‘dismissed by default’ without any hearing and not considering merits of the case by Honorable Court, due to several non-appearance of ‘X’. Now ‘X’ again wants to file another civil case before the same Court for same cause of action. Advise ‘X’. (Dec 2019, 4 marks)
Answer:
The principle of res judicata aims at bringing finality to the litigation. The basic principle is that a final judgement rendered by a court of competent jurisdiction is conclusive on merits as to rights of the parties and constitutes an absolute bar against subsequent action involving the same claim. The principle of resjudicata applies only under following circumstances:
- The matter directly and substantially in issue has been directly and substantially in issue in a former suit between same parties or between whom they claim litigation under the same title.
- The matter is in the court competent to try such subsequent suit or the suits in which such issue has been subsequently raised and has been heard and finally decided.
The word former suit means suit decided prior, irrespective of the date of institution. The matter must be decided on merits i.e. the issue was alleged by one party and denied by the other.
In the present case the competent court has dismissed without any hearing i.e. the case not been heard, and also case must be decided on merits. So the principle of Res judicata does not apply, Mr. X can file a fresh suit before the competent court.
Question 68.
Mr. X is an owner of a Bungalow situated at Jaipur. He has given the said Bungalow on rent to Mr. A at a monthly rent of ₹ 50,000. As per the rent agreement tenant has to pay rent before 10th of every month. Failure to pay rent in time for continuous two months will empower the owner to force the tenant to vacate the Bungalow before the expiry of agreement. Tenant Mr. A is not paying rent for last three months. Notice have been served on the tenant Mr. A to vacate the Bungalow and pay the rent due to him. However, no response in this regard is received by the owner. Now Mr. X, the owner of the Bungalow wants to file the suit for Ejectment and recovery of arrear of rent.
Draft appropriate suit to be filed before the Court of Small Causes. Assume other necessary facts, if required. ( Dec 2021, 8 marks)
Answer:
Suit for Ejectment and Arrears of Rent
In the Court of Small cause, Jaipur
Suit no ………………. of ………………
‘X’ S/o ………………. aged ……………….. years, resident of ………………… Plaintiff
Versus
‘A’ S/o ……………… aged ………………… years, resident of ……………….. Defendant
Suit for Ejectment and Arrears of Rent
The above named Plaintiff states as follows:
1. The Plaintiff is the owner of the Bunglow situated at ……………….. Jaipur, Rajasthan and bounded as below:
Boundaries of the Houses
***************
2. That under the agreement made on ……… 20 …………………. thedefendant became a tenant to the plaintiff in respect of the Bunglow described in paragraph 1 above at the rent of ₹ 50000/- per month and has been in occupation of the said house as such tenant since the above mentioned date of the agreement.
3. That the defendant has not paid the rent for last three months.
4. That the plaintiff is duly determined the said tenancy by serving on the defendant, by registered post on ………….. 20……………… a notice to quit the said bunglow within 30 days of the receipt of the notice and pay the entire arrears of rent. That the said notice was served upon the defendant on ……………, yet the defendant has not vacated the house, nor has he paid the said arrears of rent or any part thereof. Hence the defendant is liable to Ejectment.
5. That now a total sum of Rupees ………………… is due to plaintiff as against the defendant i.e. ₹ ……………….. on account of arrear of rent and ₹ ………………… on account of damages for use of and occupation of Bunglow from till the date of filing of this suit.
6. That the cause of action for the said arose on ………………, when the period stipulated in the said notice expired.
7. That the defendant resides at …………….., within the jurisdiction of the Court.
8. That the valuation of the suit for the purpose of jurisdiction and payment of court fee of ₹ ……………….. has been paid.
Therefore, the Plaintiff Claims:
(a) That the decree for Ejectment of the defendant from the bunglow ‘ described in paragraph 1 above be passed in favour of plaintiff.
(b) That the decree of Rupees ……………..; on account of arrear of rent be passed in favour of plaintiff.
(c) That the decree of Rupees ………………….; on account of damages for use and occupation at the rate of ₹ …………….. Per month be passed in favour of the plaintiff as against the defendant.
(d) That a decree for further damages for use and occupation at the aforesaid rate till the Ejectment of the defendant be passed in favour of the plaintiff as against the defendant on payment of additional court fee.
(e) That cost of the suit be allowed to the plaintiff.
Place:
Date:
AB Plaintiff
through Advocate
Verification
I, AB, the aforesaid plaintiff, do hereby verify the contents of paragraphs ……………… and ……………… of the above plaint are true to my personal knowledge and the contents of the paragraphs ………………….. and ………………… I believe to be true on information received.
Signed and verified this ………………. day of ……………… 20………………. at ………………… .
AB
Palintiff
Pleadings Notes
Fundamental rules of pleadings
The fundamental rule of pleadings is contained in provisions of O. 6, R. 2 of C.P.C. which enjoins :
- “Every pleading shall contain only, 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.
- Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is conveniently, contained in a separate paragraph.
- Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.”
The pleading shall contain- facts only, then again, material facts;
- not law;
- not evidence; and
- immaterial facts to be discarded.
- deficiency in pleading
Petitions / Applications
- Even though both the terms”applications” and “petitions” appear interchangeable terms, but in practice, the expression “petitions” is normally used to indicate formal applications for seeking a remedy provided by law.
- The present day system of pleadings in our country is based on :
- Provisions of the CPC, 1908
- Rules of High Courts
- Rules of Supreme Court
- Rules of special enactments
- Pleadings generally mean either a plaint or a written statement. The whole object of pleading is that each side may be prepared for the questions that are about to be argued so that they may have an opportunity of bringing forward such evidence as may be appropriate.
- The fundamental rules of pleadings are ;
- it shall contain only a concise statement of the material facts
- it shall be divided into paragraphs numbered consecutively.
- dates, sums and numbers shall be expressed in figures as well as words.
Plaint Structure
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;
Drafting of Applications / Petitions
- Every application should contain :
- Name of the Court
- Number of the suit
- Cause title of the suit
- Names of applicant and opposite party
- Provision of law under which it is made
- Affidavit (if required)
- These may be classified into :
- Applications under C.P.C
- Petitions under other statutes
- Petitions under the Constitution
1. Applications Under C.P.C
Various applications under the C.P.C have to be made from stage to stage. Examples of such applications are :
- For permission to sue or appeal as an indigent person.
- For appointment of a guardian if there is a minor defendant.
- For seeking an interim relief
- If the defendant desires to contest such an application, then he has to file a reply controverting the plaintiff’s allegations.
2. Petitions under other statutes
The rule of pleadings as provided for in the C.P.C remains the same viz – a – viz petitions / applications under other statutes are concerned, the only difference being the format of presentation.
3. Petitions under the Constitution
Written Statement
After the plaintiff has filed his plaint, the defendant appears & files a written pleading by way of defence. His defence should also conform to all the general rules of pleading discussed in the preceding paras. This is called a “written statement”.
Then, in answer to the defendant’s pleas in defence, a subsequent pleading is filed by the plaintiff, either in reply to a defendant’s claim of set off, or with leave of the Court. This is also called a “written statement” (also called Replication or Rejoinder).
Before drafting a written statement, the defendant should examine the plaint very carefully and make sure whether the whole information required for drawing up the defence is available. If not, then he may apply for discovery of documents.
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’. ,
A written statement can be divided into the following 2 parts :
- Formal portion of written statement
- It should have the same heading and title as the plaint, except that if there are several parties, the name of any one may be written with the addition of “and another” or “and others”
- The Formal Portion consists of:
- Name of the Court
- No. of the suit
- Names of parties
- Brief write up to indicate whose statement it is e.g. written statement on behalf of all the defendants
- No. relief should be claimed in the written statement
- 2. Body of the Written Statement
The rest of the written statement should be confined to the defence.
Forms of Defence
A defence may take the form of:
A traverse (i.e Denials)
Here, the defendant totally & categorically denies the plaint allegation.
Dilatory Pleas
It’s a plea which merely delays the trial of a suit on merits e.g. a plea that the suit has not been properly framed.
Objections in point of law (i.e. a Demurrer)
It’s a defence that the plaint allegations do not disclose a cause of action, or that the special damages claimed are too remote.
Special defence (i.e. confession and avoidance)
Here, he admits the allegations but seeks to destroy their effect by alleging affirmatively certain facts of his own. e.g. in a suit for a claim, the defendant admits the claim but alleges that it’s barred by limitation.
Set off
Here, the defendant admits the allegations and their effect also, but at the same time, seeks a set off from the plaintiff.
Drafting of Reply / Written Statement – Important Considerations
While drafting of reply/ written statement, one has to keep the following points in mind :
One has to deny the averment of the plaint which is incorrect, or false because if they are not denied specifically, it’s presumed to have been admitted by the other party.
- If the plaint has raised an issue which is otherwise not admitted by the opposite party in the correspondence exchanged, it’s advised to deny such issue and let the onus to prove that issue be upon the complainant.
- Attach the relevant correspondence, invoice, challan, documents etc. as annexures.
- The reply to each para of the plaint should be drafted and no para should be left unattended.
- It’s to be signed by the individual himself or their constituted attorney.
- In case of a partnership firm, the partner who signs should be duly authorised under the partnership deed.
- The reply / written statement is to be supported by an affidavit.
- The reply along with all annexures should be duly page numbered.
- No important point should be omitted from being given in the reply because if any point has not been pleaded in the pleadings, no evidence could be lead on that point, (i.e. No pleadings, no evidence)
- In every pleading, one must state specifically the relief which the party is claiming from the Court or tribunal in the ‘prayer clause’.
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, j 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 detailed procedure has been set out in the Schedule I of the C.P.C which deals with Orders and Rules.
Affidavits
An Affidavit is a statement or declaration on oath by the deponent. It’s a very important document and the consequences of a false affidavit are serious.
In the verification part of the Affidavit, it must be specified as to which portions are being sworn on the basis of personal knowledge and which, on the basis of information received and believed to be true. In the latter case, the source of info must also be disclosed.
The following rules should be followed while drawing up an Affidavit:
- Not a single allegation more than what is absolutely necessary should be inserted;
- The person making the Affidavit should be fully described in the affidavit;
- An Affidavit should be drawn in the first person;
- Affidavit should be divided into paragraphs, numbered consecutively;
- The affidavit should have the following oath or affirmation written out at the end:
“I swear / solemnly affirm that this declaration is true, that it conceals nothing, and that no part of it is false”. - Affidavits are chargeable with stamp duty. But no stamp duty is charged on Affidavits filed or used in Court.
Appeals- Meaning
- An appeal is:
- an application by a party
- to an appellate Court
- asking it to set aside or revise a decision
- of a subordinate Court.
- A right of appeal is not a natural or inherent right but is a creature of a statute. It is for the appellant to show that the statute gives a right of appeal to him.
- The appellate judgement must include the following:
- the points for determination;
- the decision thereon;
- the reasons for the decision; and
- the relief to which the appellant is entitled to.
Memorandum of Appeal
This part should contain the following details :
- Name of the Court in which appeal is filed
- Number of the appeal (as the number is noted by the officials of the Court, a blank space is left for it)
- Year in which appeal is filed
- Name and address of appellant
- Name and address of respondent
- An introductory statement giving the particulars of the decree or order appealed from (viz. the number and date, the Court which passed it, and the name of the presiding officer)
Grounds of Appeal
The grounds of appeal are the grounds on which the decree or the order appealed from is objected to. The following points may be raised in the grounds of appeal:
- any mistake committed by the lower Court in weighing the evidence;
- any mistake in the view of law entertained by the lower Court;
- any material irregularity committed in the trial of the case;
- any substantial error or defect.
Kinds of appeals
The C.P.C, 1908 provides for 4 kinds of appeals :
- Appeals from original decrees
- Second appeals
- Appeals from orders
- Appeals to the Supreme Court.
Now, let’s discuss them in detail.
- Appeals from original decrees
- These appeals are preferred from every decree passed by any Court exercising original jurisdiction.
- These, appeals can be on points of law as well as on facts.
- Second appeals
- These appeals lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court.
- These appeals can only be on a substantial question of law.
- In the second appeal, the High Court may determine any issue, necessary for the disposal of the appeal, which has not been determined / wrongly determined by the Lower Court or Lower Appellate Court.
- Appeals from orders
These appeals would lie only from the following orders on grounds of defect or irregularity of law :- Order u/s 35A, 91, 92, 95 of CPC, 1908
- Order under the CPC, 1908 imposing a fine or directing the detention or arrest of any person except in execution of a decree.
- Appeals to the Supreme Court (the highest Court of Appeal) Under the CPC, 1908 an appeal shall lie to the SC from any judgement, decree or final order of a High Court if the following 2 conditions are satisfied :
- the case involves a substantial question of law, and
- the HC opines that the said question needs to be decided by the Supreme Court (this is commonly known as “Fitness certificate from HC)
Drafting of Appeals
An appeal may be divided into 3 parts:
- Formal part i.e. Memorandum of Appeal
- Material part i.e. Grounds of Appeal
- Relief sought for.
Counter Affidavit
Pleadings filed by a defendant / respondent in reply to the claims set out by the plaintiff / petitioner, in the form of an affidavit and / or supported by an affidavit are referred to as a counter affidavit. The rules of pleadings as are applicable to a written statement, apply to a counter affidavit as well.
Reply
This term is used for pleadings filed by a party (plaintiff / petitioner as well as defendant / respondent) in answer to the claims raised by a party. The rules of pleadings as are applicable to a written statement, apply to Reply.
Rejoinder / Replication
A written statement / reply of the plaintiff / petitioner by way of defence to the pleas raised in the counter affidavit /written statement from the defendant / respondent, is termed as a Rejoinder or Replication.
A party cannot introduce new material facts or different cause of action in a rejoinder / replication except in a case where subsequent to filing of the petition / suit, the petitioner / plaintiff discovers new-matters and accordingly seeks leave of the Court to submit such further particulars.
Suit for specific performance
Specific performance is an order of a Court which requires a party to perform a specific act, usually what is stated in a contract. It is an alternative to awarding damages and is classed as an equitable remedy commonly used in the form of injunctive relief concerning confidential information or real property. While specific performance can be in the form of any type of forced action, it is usually used to complete a previously established transaction, thus being the most effective remedy in protecting the exnectation interest of the innocent party to a contract.
Complaint
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.
A complaint in a criminal case is what a plaint is in a civil case. The requisites of a complaint are:
- an oral or a written allegation;
- some person known or unknown has committed an offence;
- it must be made to a magistrate; and
- it must be made with the object that he should take action.
First Information Report (FIR)
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.