Drafting, Pleading and Conveyance

Date and Time: 19 September 2021 13:03:00 IST
Job Number: 153224203
Documents (99)
1. CHAPTER I PRINCIPLES OF LEGAL DRAFTING

Client/Matter: -None-
2. 1.1 Introduction
3. 1.2 Significance of Drafting
4. 1.3 Principles of Legal Drafting
5. 1.4 Conclusion
6. 2.1 Introduction
7. 2.2 Forms of Notice
8. 2.3 Modes of Service of a Notice
9. 2.4 Drafting of Legal Notices
10. 2.5 Notice Reply
11. 2.6 Specimens
12. 3.1 Introduction
13. 3.2 Objectives of Pleadings
14. 3.3 Fundamental Rules
15. 3.4 Construction of Pleadings
16. 3.5 Striking of Pleadings
17. 3.6 Alternative and Inconsistent Pleadings
18. 3.7 Signature and Verification of Pleadings
19. 3.8 Amendment of Pleadings
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20. 3.9 Consequences of Failure to Amend
21. 3.10 Conclusion
23. 4.2 Particulars of Plaint
24. 4.3 Rejection of Plaint
25. 4.4 Signature and Verification of Plaint
26. 4.5 Annexures to be Filed Alongwith the Plaint
27. CHAPTER V DRAFTING OF CIVIL SUITS
28. 5.1 Suit for Defamation
29. 5.2 Suit for Nuisance
30. 5.3 Suit for Trespass
31. 5.4 Suit for Malicious Prosecution
32. 5.5 Suit for Negligence
33. 5.6 Suit for Recovery of Price for Goods Sold and Delivered
34. 5.7 Suit for Dissolution of Partnership and for Taking Accounts
35. 5.8 Suit Based on Promissory Note
36. 5.9 Specific Performance of a Contract
37. 5.10 Suit for Cancellation of Instruments
38. 5.11 Suit for Partition
39. 5.12 Suit for Eviction and Possession
41. 6.2 Time of Filing of the Written Statement
42. 6.3 Documents to be Filed by the Defendant
43. 6.4 Defences in Written Statement
44. 6.5 Contents of the Written Statement
45. 6.6 Set-off
46. 6.7 Counter Claim
47. 6.8 Drafting of Written Statement
48. 6.9 Defences which can be Set up in Various Suits
49. 6.10 Specimen
50. CHAPTER VII CIVIL APPLICATIONS AND EXECUTION PETITION
52. 7.2 Contents of Civil Application
53. 7.3 Reply to Interim Application
54. 7.4 Application for Adjournment
55. 7.5 Application for Service of Summons by Substituted Service
56. 7.6 Application for Appointment of Court Commissioner
57. 7.7 Application for Arrest Before Judgment
58. 7.8 Application for Attachment before Judgment
59. 7.9 Application for Temporary Injunction
60. 7.10 Reply to an Interim Injunction Application
61. 7.11 Application for Appointment of Court Receiver
62. 7.12 Application to bring Legal Heirs of the Plaintiff/Defendant on Record
63. 7.13 Application to Sue as an Indigent Person
64. 7.14 Application for Restoration of Appeal
65. 7.15 Application for Restoration of Suit
66. 7.16 Application for Stay
67. 7.17 Application under Order 20 Rule 12 of Civil Procedure Code
68. 7.18 Application for Amendment of Pleadings
69. 7.19 Caveat
70. 7.20 Execution Petition
71. 8.1 Appeal
72. 8.2 Review
73. 8.3 Revision
75. 9.2 Drafting of Marriage Petitions
76. 9.3 Petition for Restitution of Conjugal Rights
77. 9.4 Petition for Judicial Separation
78. 9.5 Petition for Nullity of Marriage
79. 9.6 Marriage Petitions for Divorce
80. 9.7 Maintenance
82. 10.2 Application for Grant of Succession Certificate
83. 10.3 Probate on the Basis of Will
85. 11.2 Categories of Writs
86. 11.3 Specimen
87. 12.1 Introduction to Consumer Protection Act
88. 12.2 The Key Features of the Consumer Protection Act, 2019
89. 12.3 Meaning of Complaint
91. 13.2 Compensation in Case of Hit and Run Motor Accidents
92. 13.3 Compensation on the Principle of “No Fault Liability”
93. 13.4 Compensation under Section 166, Motor Vehicle Act, 1988
95. 14.2 Affidavits under the Code of Civil Procedure
96. 14.3 Affidavits under Criminal Procedure Code
97. 14.4 Effect of Swearing of a False Affidavit
98. 14.5 Drafting of an Affidavit
99. 14.6 Specimen
CHAPTER I PRINCIPLES OF LEGAL DRAFTING
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER I PRINCIPLES OF LEGAL DRAFTING

The difficult task after one learns how to think like a lawyer, is relearning how to write like a human being.
— FLOYD ABRAMS
End of Document
1.1 Introduction
Dr Medha Kolhatkar
1.1 Introduction
Legal drafting is an essential requirement of the legal profession. Drafting is an art and a skill which a legal
practitioner must possess. Every lawyer, therefore, should acquire and practice the skills of good drafting.
Mastering of legal writing skills takes time and requires practice and experience. The success of a case largely
depends on the drafting skills of a lawyer. Therefore, the significance of good drafting cannot be over emphasised.
The expression, “Draft” means a rough sketch of a writing or document, from which the final or fair copy is made.
Thus, “Drafting” is the primary stage of writing. One who drafts or frames a deed or document, such as a lease
deed, mortgage deed, etc. is called a draftsman.
End of Document
1.2 Significance of Drafting
Dr Medha Kolhatkar
1.2 Significance of Drafting

The draftsman of a document or of pleadings has dual responsibility. Firstly, through his writing he has to
accomplish the task for which his services are hired and secondly, he has to meet the needs and expectations of
his client. For example, while drafting a Will, the lawyer has to keep in mind the intention of the testator and also the
legal provisions which are applicable. Thus, the draftsman should ensure that both these requirements are fulfilled
and there are no lacunae in the document so drafted.
Improper drafting can damage the interest of the client or may affect title to immovable property. If pleadings are not
drafted carefully, it can spoil the case of the litigating party.
A legal document is likely to be handled by several persons concurrently or successively. Therefore, every care is
to be taken to ensure that the document is devoid of any ambiguity or vagueness, otherwise, the whole purpose of
drawing the deed will be defeated.
If pleadings are drafted with precision and clarity, half the legal battle is already won for the client. This will not only
safeguard the interest of the client, but will also save the valuable time of the judiciary, and the courts can decide
the disputes before it effectively and expeditiously.
A lawyer should obtain complete and correct information and instructions from the client, otherwise any omission or
error in drafting can jeopardise the rights and interests of the parties who are governed by such documents or
pleadings. Once a document or deed is drafted and duly executed by the parties it results in transferring of right,
title and interest in immovable property from one party to another. Therefore, utmost care needs to be taken while
drafting such deeds, agreements, etc.
Every lawyer before he begins to draft must be well versed with the facts, should have thorough knowledge of the
applicable substantive and procedural laws along with the latest amendments and judgments.
End of Document
1.3 Principles of Legal Drafting
Dr Medha Kolhatkar

Stated below are the principles of legal drafting:
(i) To generate a good draft, the writing should be concise, clear, convincing, complete and coherent.
(ii) Fowler has stated the following five rules of drafting:—“Anyone who wishes to become a good writer
should endeavour, before he allows himself to be tempted by more showy qualities to be direct, simple,
brief, vigorous and lucid.”
This general principle may be translated into general rules in the domain of vocabulary as follows:—
(a) Prefer the familiar word to the far fetched

(b) Prefer the concrete word to the abstract
(c) Prefer the single word to the circumlocution
(d) Prefer the short word to the long
(e) Prefer the Saxon word to the Romans
(iii) The draftsman must conceive the whole design of the document first and then begin with the process of
drafting.
(iv) The object and function of the document which is to be drafted should be understood and analysed by the
draftsman. So also one should prepare a rough skeleton as to the contents of the document proposed to
be drafted.
(v) The draftsman should follow the well established rules and practices of drafting.
(vi) The draftsman should always keep his audience in mind when crafting any piece of writing.
(vii) The choice of words plays an important role in good drafting. Choose the right words to convey the
meaning to the reader. If the words and phrases can have two or more possible meanings, make sure that
the one you want to convey is clear to the reader. This will make the draft readily intelligible to everyone.
(viii) The draftsman should have a good command over the language in which the document is drafted.
Sentences should be simple, brief and grammatically correct. Proper punctuation should be used wherever
necessary.
(ix) The use of superfluous adjectives should be avoided. Active voice should be used instead of passive
voice.
(x) The draft should be logically arranged and well organised. This is possible only when the draftsman has
complete clarity about the subject matter he is to write.
Charles Davidson has culled out some rules of drafting as follows:—
(a) Before a draft is begun the whole design should be conceived.

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(b) Nothing should be omitted or admitted at random.

(c) A necessary result should never be stated. For example, if it is said that ‘A’ died leaving ‘B’ as his heir
at law, it is absurd to add “him surviving” because unless ‘B’ survived ‘A’, ‘B’ would not be heir at law.
(d) Statements of negation should be avoided. For example, when the expression “tenants-in-common” is
used it need not be coupled with the expression “and not as joint tenants”.
(e) The order of the draft should be logical.
(f) The ordinary and accustomed forms of instruments and technical language should be employed.
(g) Language should be, to the utmost possible extent, precise and accurate, that is, every phrase should
have a clear meaning and all the phrases should be so connected together as to give rise to no
ambiguity.
(h) While the precedent should not be followed mechanically, at the same time, so long as the precedent
is not contrary to or inconsistent with the object to be achieved, it should be followed verbatim.
(xi) Arrange the drafts in various paragraphs and use devices such as sub-headings, titling, etc. to make the
content easy to understand.
(xii) Once the draft is ready the draftsman should carefully reconsider it in order to ensure that there are no
errors or lacunae in the draft.
(xiii) A draft should be prepared as soon as the necessary information and instructions are sought from the
client. Delay in drafting may result in omitting some vital details/information in the draft. Therefore, it is in
the interest of both, the client as well as the lawyer, that the document should be drafted at the earliest.
End of Document
1.4 Conclusion
Dr Medha Kolhatkar
1.4 Conclusion
Therefore, in conclusion it can be said that a lawyer who acquires the perfection and proficiency in drafting, shall
undoubtedly become a perfect professional. Good drafting skills are an integral part of Advocacy. Hence, every
aspiring legal professional should imbibe the basic skills of drafting.
As Professor Reed Dickerson puts it in his book “Legislative Drafting”:
Legal drafting is not for children, amateurs or dabblers. It is a highly technical discipline, the most rigorous form of writing
outside of mathematics.
End of Document
2.1 Introduction
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER II NOTICES
CHAPTER II NOTICES
2.1 Introduction
The word “notice” denotes merely an intimation to the party concerned of a particular fact. It cannot be limited to a
letter. Notice may take several forms. As per Black’s Law Dictionary, “When a person notifies or gives notice to
another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or
not such other actually comes to know of it” it is termed as giving notice. According to Chamber’s 20th century
Dictionary 1961 (p 731) the word “notice” stands for intimation, announcement, information, warning, a writing etc.
Notice is a direct and definite statement of a thing, as distinguished from supplying materials from which the
existence of such thing may be inferred. (The Judicial Dictionary, Words & Phrases Judicially Interpreted, 2nd ed.
By F. Stroud, p 1289)
“Notice” means making something known to a person of which he was or might be ignorant. A notice can be given
either orally or in writing. However, a notice should preferably be in writing because a written notice is easy to prove
and its contents are certain. A party sends a legal notice to communicate his grievances and to seek appropriate
remedy from the receiver of the notice. It gives an opportunity to the receiver to take appropriate action to address
the grievances set out in the notice, to resolve the issue cordially and thus can avoid litigation.
End of Document
2.2 Forms of Notice
Dr Medha Kolhatkar
CHAPTER II NOTICES
2.2 Forms of Notice

There are various forms of a Notice, which are discussed in detail below.
2.2.1 Statutory Notice
When a statute/enactment requires sending of a notice as a condition precedent to institute the legal proceedings,
such notice is called statutory notice. A statutory notice can be further classified into mandatory (or obligatory)
notice and directory (or recommendatory) notice.
2.2.2 Mandatory Notice
All mandatory notices are statutory. However, all statutory notices are not mandatory. Examples of statutory
(mandatory) notices are—notice under section 80 of Civil Procedure Code, notice under section 138 of Negotiable
Instruments Act, a notice under section 106 of the Indian Railways Act, a notice under section 10 of the Indian
Carriers Act, etc.
Where a party, who is under an obligation to comply with the provisions regarding mandatory notices, fails to
comply, then the legal action initiated by such party also fails.
2.2.3 Directory Notice
As the term indicates such a notice is directory in nature. If the party under obligation fails to comply with the same
then the consequences of such non-compliance are detrimental to the interests of such party. Directory notice is not
a condition precedent for the taking of a legal action by the party.
Following are the illustrations of Directory Notices:
• A notice of revocation or renunciation of agency is defined under section 206 of the Indian Contract Act. As
per section 206, a “Reasonable notice must be given of such revocation or renunciation”. However, this
does not mean that the agency cannot be revoked or renounced unless a prior notice was given. Absence
of notice would merely penalise the defaulting party in the shape of damages to the other.1
• Notice under section 131 of Transfer of Property Act, 1882. As per section 131 of Transfer of Property
Act—
Every notice of transfer of an actionable claim shall be in writing, signed by the transferor or his agent
duly authorised in this behalf, or, in case the transferor refuses to sign, by the Transferee or his agent,
and shall state the name and address of the transferee.
2.2.4 Public Notice

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2.2 Forms of Notice
All the notices which are issued regarding the matters in which the members of the general public are likely to be or
expected to be affected are “Public Notices”. Black’s Law Dictionary defines the term “public notice” as:
Notice given to the public generally, or to the entire community, or to all whom it may concern. Such notice must commonly
be published in a newspaper of general circulation.
Such public notices are generally published in the newspapers or Government Gazette. It is pertinent to note that
as far as possible a public notice should be given in the newspapers having wide circulation.
Following are the illustrations of Public Notices:
• A notice of sale or purchase of immovable property.

• A notice of Auction of property.
• A notice of dissolution of partnership firm.
• A notice of termination of an agent’s authority
Section 30(5) of the Indian Partnership Act, 1932 provides for the requirement of public notice by a partner on his
attainment of majority. Section 30(5) of the Indian Partnership Act, 1932 lays down as follows:
At any time within six months of his attaining majority, or of his obtaining knowledge that he had been admitted to the
benefits of partnership, whichever date is later, such person may give public notice that he has elected to become or that
he has elected not to become a partner in the firm, and such notice shall determine his position as regards the firm:
Provided that, if he fails to give such notice, he shall become a partner in the firm on the expiry of the said six months.
Section 45(1) of the Indian Partnership Act, 1932, also provides for giving of a public notice prior to the dissolution
of partnership.
2.2.5 Personal/Private Notice
These notices are addressed directly to the party who has either committed some breach or is likely to be affected.
Black’s Law Dictionary defines “personal notice” as under—
Communication of notice orally or in writing (according to the circumstances) directly to the person affected or to be
charged, as distinguished from constructive or implied notice, and also from notice imputed to him because given to his
agent or representative.
For example, notice to appoint an arbitrator, notice by landlord calling upon tenant to quit, notice of claim to a
debtor, notice for compensation for the civil wrong of defamation, etc.
2.2.6 Actual Notice
A notice is said to be actual and express, when notice of any fact is given to a person either orally or in writing.
As per Black’s Law Dictionary, Actual Notice has been defined as “Notice expressly and actually given, and brought
home to the party directly”.
Actual notice can be expressed or implied. According to Law Lexicon “Actual notice is when there is a positive
information of a fact.” Actual notice maybe either expressed or implied, in the one, it is established by direct
evidence; in the other, by proof of circumstances from which it is inferable as a fact.
2.2.7 Constructive Notice

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2.2 Forms of Notice
When due to existence of certain facts and circumstances, it is presumed by law that a person has a notice of those
facts, it is termed as constructive notice.
Law Lexicon defines Constructive Notice as under:
“Legal inference from established facts. Notice imputed by the law to a person not having actual knowledge.”
“Knowledge of any fact which would put a prudent man upon enquiry.”
For example—A registered deed, a pending law suit, lis pendens notice, etc. Thus, constructive notice means
notice inferred by law, as distinguished from actual or formal notice; that which is held by law to amount to notice.
1 SRST Narayana Chettiar v The Kaleeswarar Mills Ltd, AIR 1952 Mad 515 : 1951 21 CompCas 351 Mad : (1952) IMLJ
18.
End of Document
2.3 Modes of Service of a Notice
Dr Medha Kolhatkar
CHAPTER II NOTICES
2.3 Modes of Service of a Notice

The following are the modes of service of notice
1) Personal service
2) Service through Post
3) Statutory / prescribed mode of service
4) Service by implication
5) Special mode of service
In personal service the notice is served to the addressee personally. Service of notice by Registered Post
Acknowledgment Due (RPAD) is one of the convenient and safer modes of service, as one can prove the fact of
service of notice. So also law will presume that a notice which was sent by registered post was in reality duly
served.2
Where a statute prescribes a particular mode or manner of service of notice then the prescribed mode of service
has to be followed, for example, a notice under section 80 of Civil Procedure Code, directing the notice to be
delivered to or left at the office of the secretary to the Union/ Provincial Government.
In contractual mode of service, the mode which is agreed to by the concerned parties must be followed (e.g., in
arbitration, partnership, contracts), i.e., the notice should be served confirming to such mode. The indirect mode or
service by implication arises when the notice giver sends the notice through a bearer or special messenger or
through post but the addressee refuses to accept it. When the addressee refuses to accept the notice, the notice is
presumed to have been served by implication.
Leaving of a notice to any conspicuous part of the premises of the addressee is an illustration of special mode of
service.
2 Section 114 of the Evidence Act and section 27 of the General Clauses Act.
End of Document
2.4 Drafting of Legal Notices
Dr Medha Kolhatkar
CHAPTER II NOTICES
2.4 Drafting of Legal Notices

Stated below are some essential points to be remembered while drafting legal notices:
a. Notice is a foundation of any legal action/proceedings, therefore, utmost care should be taken while
drafting notice.
b. The draftsman must first obtain complete information of the facts/transaction regarding which the notice is
to be drafted.
c. The draftsman after securing information must then work on the legal issues which need to be addressed.
For example:—Whether the contract is void or voidable, whether any right is violated, whether the
client is entitled to damages, etc.
d. Understand the need and requirement of the client, and while drafting the notice, focus on the objective
which the client/party desires.
e. Arrange the facts in the chronological order and in numbered paras.
f. Every notice must state the name and full description of the sender of the notice.
g. It must state the name and full description of the person to whom the notice is given. (addressee/receiver)
h. Notice should also state and give reasonable time to the opposite party to comply with the demands made
in the notice.
i. The object of notice should be brought out clearly, directing the party to comply with, or to refrain from
doing certain things/acts.
j. The notice must be signed by or on behalf of the sender (i.e., the Advocate when the notice is sent through
him).
k. Notice must state the date, place and mode of service of notice.
l. If notice is required by law to be given within a certain frame of time, then, those details must be stated in
the notice.
End of Document
2.5 Notice Reply
Dr Medha Kolhatkar
CHAPTER II NOTICES
2.5 Notice Reply

Every notice received should be replied to, as promptly as possible.
The averments in the notice which are incorrect or fabricated should be generally and specifically denied, and then
the facts and objections on behalf of the addressee or receiver should be stated.
In notice reply, while making denials, reference should be made to relevant documents, correspondence, etc.,
based on which the denials are made.
Notice reply is the basis of written statement/reply to the complaint or proceedings; therefore, it is required to be
drafted carefully.
Finally Notice Reply like Notice should be sent by such mode of service which can be easily proved, and therefore,
preferably by RPAD or by Courier.
End of Document
2.6 Specimens
Dr Medha Kolhatkar
CHAPTER II NOTICES
2.6 Specimens
Specimen No. 1
(Breach of Leave and Licence Agreement)
NOTICE
(By R.P.A.D.)
From: __________
Date: __________
To,
ABC Co. Pvt. Ltd.
Address:
Kind Attn:—Mr._______________
Sir,
Under the instructions of my client (give the name and address of client) __________ and on being authorised by
him in this behalf I have to address you as under the contents whereof you may please note;
(1) That my client is the owner of the premises situated at ___________.

(2) That by an agreement dated ______ my client has given the said premises to you on leave and license
basis for 11 months.
(3) That my client states that as per the said leave and license agreement you were to use the said premises
for office purposes only.
(4) That my client states that on ________ date when my client inspected the premises he noticed that you are
using the said premises for manufacturing and packaging of ________.
(5) That my client states that the said act on your part of using the premises for manufacturing and packaging
of ________ is in total violation of the agreed terms of the Leave and Licence Agreement dated ________.
(6) That one Mr. _________ and Mr. __________ of your organisation promised my client that within 24 hours
they will stop the said manufacturing activity and use the premises only for office purposes as per the
agreed terms. They further requested my client, not to terminate the Leave & Licence Agreement dated
____________.
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2.6 Specimens
(7) That my client thereafter, visited the licensed premises on ______ date and found that the manufacturing
activity was going on in full force and in gross breach of the agreed terms of Leave and Licence
Agreement.
(8) That my client contends that in view of the gross violations committed by you repeatedly and thereby
damaging the licensed premises, my client has decided to terminate the said Leave and Licence
Agreement dated _________. Thus, the said agreement between you and my client stands terminated.
(9) That my client has therefore instructed me to call upon you and inform you that—
(10) The Leave and Licence Agreement dated _______ hereby stands terminated.
(ii) You are hereby called upon to remove all your furniture, computers, cartons, bottles etc. within 8 days from
the date of the receipt of this notice and handover one set of keys which were given to you by my client.
(iii) Pay Rs. ________/- as compensation for committing breach of the Leave & Licence Agreement and for
damaging the licensed premises.
(iv) Failing which my client will be constrained to initiate legal proceedings against you entirely at your risk as
to the cost and consequences of any such legal action including the charges of this notice of Rs. ______/-
which you may please note.
Yours sincerely,
Sd. Advocate
Specimen No. 2
(Dissolve the Marriage by Mutual Consent)
NOTICE
(By R.P.A.D.)
From: _________
Date: _________
To,
Mr. _____________
Address:__________
Sir,
Under the instructions from and on behalf of my client Mrs. __________ residing at ______ and on being
authorised by her in this behalf I address you as under, the contents whereof you may please note—
(1) My client states that my client’s marriage was solemnised with you on ____ date at (Place) as per Hindu
religious rites, rituals and ceremonies.
(2) My client states that my client, thereafter, started residing and cohabiting with you at _______.
(3) My client states that my client is an employee in ____ bank and after her leave (obtained for marriage) was
over she joined her duties on ______ date.
(4) My client states that in addition to her job commitments and responsibilities, she was attending and fulfilling
all the household activities and responsibilities before leaving for her office at ____ and also after returning
from her office.
(5) My client states that within 1 month from the date of her joining the office, you along with your parents and
your younger sister started picking up quarrels on trivial issues with my client. You along with your parents
and sister would abuse and insult my client and thereby committed mental cruelty on my client almost
everyday.
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2.6 Specimens
(6) My client states that she was never given the respect and status of a wife by you. The constant taunts and
quarrels caused great mental stress to my client. You along with your parents made demands for gifts from
client’s parents. My client states that 90% of her salary was given to you every month to meet the
household and other expenses. But you continued to demand more and more money from my client. My
client states that she was extremely disappointed by your behaviour and attitude.
(7) My client states that you have raised doubts about my client’s character and have alleged that my client is
having illicit relations with her co-workers at her office. All this has made the married life of my client
absolutely intolerable. My client states that by doubting the character of my client you have committed a
grave matrimonial offence.
(8) My client states that, on _______ date it was your mother’s birthday. My client had already informed you
that she would get late in the evening from her office as year-end workload was there in the bank.
However, when my client returned home at around 8 O’clock in the evening from the office after long hours
of work as usual you and your sister started abusing, insulting and taunting my client in the presence of
family friends and relatives, and when my client said that she should not be insulted, and should be treated
with respect, you asked my client to leave the matrimonial home immediately. Therefore, my client left the
matrimonial home on ____ date.
(9) My client states that she was thus forced to leave the matrimonial home on ____date against her will and
wish. My client states that since then my client is staying with her parents.
(10) My client states that, on ____ date you and your father came to meet my client and her parents and again
demanded money and when my client refused, you and your father abused my client and her parents.
(11) My client states that you have committed mental cruelty on my client on several occasions and my client
reserves the right to enumerate the said instances if required before the appropriate forum.
(12) Thus, my client states that, because of the mental cruelty committed by you and your family members, my
client wishes to seek divorce from you.
(13) My client states that in spite of all this, my client still wishes to dissolve the marital tie by filing mutual
consent petition rather than contending and contesting a divorce petition against you.
(14) My client states that if you fail to consent to divorce by mutual consent, my client will be constrained to
initiate legal proceedings against you entirely at your risk as to the cost and consequences of any such
legal action including the charges of this notice Rs. ____ which you may please note.
Yours sincerely,
Sd. Advocate
(Encl-Draft of petition for divorce by Mutual Consent)
Specimen No. 3
(Notice to Terminate Contract)
NOTICE
(By R.P.A.D.)
From: ________
Date:_________
To,
___________
___________
Sir,
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2.6 Specimens
Under the instructions of my client M/s ABC Company Pvt Ltd, a company registered under the Indian Companies
Act, 1956, having its registered office at ______, through its director Mr. __________ and on being authorised in
this behalf, I address you as under; the contents whereof you may please note—
(1) My client states that my client had entered into a contract with you on ________ date ____ for the sale and
supply of ________ (give the description of goods) goods.
(2) My client states that my client has paid Rs _______ as advance (i.e., 50% of the total value of goods) vide
cheque no. _______ drawn on ________ bank dated _________. My client states that there was a delay of
almost 3 months in supplying the aforementioned goods. Moreover, you have supplied only 1/3rd of the
agreed quantity of the goods.
(3) My client states that the goods supplied by you are sub-standard and are not as per the specifications
agreed upon mutually vide contract dated _________ (describe in details as to how the goods are not as
per the specifications).
(4) My client states that till date you have not supplied the remaining quantity of goods as per the contract
despite several reminders from my client.
(5) My client states that my client has suffered huge losses because of breach of contract committed by you.
(6) Under these circumstances, my client has no alternative, but to terminate the contract with you dated
___________
(7) Therefore, through this notice, the contract between you and my client hereby stands terminated and you
are hereby called upon to return the amount of Rs _______/- received as an advance payment from my
client and Rs. ______ as damages for breach of contract dated ______ within 8 days from the date of
receipt of this notice, failing which my client will be constrained to initiate legal proceedings against you
entirely at your risk as to the cost and consequences of any such legal action including the charges of this
notice of Rs. ___________/-.
Yours sincerely,
Sd. Advocate
Specimen No. 4
(Notice for compensation for permanent disablement and business loss)
NOTICE
(By R.P.A.D.)
From: _______
Date: _______
To,
____________
____________
Sir,
Under the instructions of my client (state the name and address of client) and on being authorised by him in this
behalf, I address you as under, the contents whereof you may please note:—
(1) My client states that my client has taken on rent shop no. ______ situated on the 2nd floor of the ______
commercial complex. My client is running the business of ______ at the aforementioned shop.
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2.6 Specimens
(2) My client states that the ______ commercial complex is owned by No. 1 of you and the lift at the ______
commercial complex has been installed by no. 2 of you.
(3) My client states that when my client on ______ date got into the lift in order to go to the shop premises on
the 2nd floor of ______ commercial complex, the rope of the lift suddenly snapped with the result the cabin
of the lift came down on the ground with a thud resulting in fracture of both the legs of my client.
(4) My client states that my client was incapacitated for 8 months and was treated by orthopaedic surgeons.
On ______ date my client underwent surgery on his left leg wherein a rod was inserted and my client was
hospitalised for ______ days. Thereafter, my client was required to undergo second surgery on his left leg.
The second surgery was performed on ______ date and my client this time was hospitalised for ______
days.
(5) My client states that it has been certified now by the orthopaedic surgeon ______ that my client has
suffered 28% of permanent disability.
(6) My client states that No. 1 and No. 2 of you are guilty of deficiency in services. The lift had a manufacturing
defect and was not installed and maintained properly.
(7) My client states that No. 1 of you is the owner of the commercial complex and No. 2 of you has
manufactured and installed the lift and thus both of you are jointly and severally responsible for the injury
caused to my client.
(8) My client states that no periodical inspection, maintenance and repair of the lift was done and this resulted
in the unfortunate accident.
(9) My client states that because of the said accident my client has not only suffered physical pain, mental
agony but has also suffered loss of business.
(10) The following are the particulars of the claims by my client:
i) Cost of medical treatment and other incidental expenses Rs. 4,75,000/-
ii) Loss of business for 9 months Rs. 11,00,000/-
iii) Suffering of physical pain, mental agony Rs. 75,000/-
iv) Compensation for loss of earning due to 28% permanent disablement Rs. 15,00,000/-
v) Cost of this notice Rs. 10,000/-
(11) My client states that No. 1 and No. 2 of you are jointly and severally liable to pay my client an amount of
Rs. 31,60,000/- as stated above together with interest thereon at the rate of 24% p.a. from the date of the
accident till the actual realisation of the amount of compensation within 7 days of receipt of this notice
failing which my client will be constrained to initiate legal proceedings against both of you entirely at your
risk as to the cost and consequences of any such legal action including the charges of this notice which
you may please note.
Yours Sincerely,
Sd. Advocate
Specimen No. 5
(Notice by Landlord to Tenant for Eviction)
NOTICE
(By R.P.A.D.)
From, ______
Date:_______
To,
_____________
Page 6 of 32
2.6 Specimens
_____________
Sir,
Under the instructions of my client, Mr._______________ residing at _____ and on being authorised by him in this
behalf, I have to address you as follows:
(1) That the bungalow bearing CTS No. __________ situated at ___________ in _______ city is owned by my
client, hereinafter called as the ‘said property’. That you approached my client and requested my client to
give the said bungalow on rent to you. That my client has entered into tenancy agreement with you on
_____ date.
(2) That my client has inducted you as his tenant in respect of the said property from ______ date. Thus, you
are a monthly tenant in respect of the said property. That the agreed monthly rent for the said property is
Rs. _____/- per month payable on or before 5th of each month.
(3) That my client states, that from September 20 _____ you have failed and neglected to make the payment
of rent to my client and thus, you have become a defaulter. Notwithstanding several reminders over the
phone you have not bothered to pay the rent as agreed from September 20________. Hence, you are in
arrears of rent from September 20 _____ till date.
(4) That my client states, that you have uprooted the trees planted by my client without my client’s permission
or consent and you have constructed permanent structure there. The municipal authorities are going to
demolish the said structure as the same is illegal and unauthorized. All this has caused a lot of harassment
to my client and damage to the “said property”. It has also resulted in deteriorating the value of the “said
property”.
(5) That my client states, that some of the trees were more than 10 years old and were helping in keeping the
premises cool and beautiful.
(6) That my client states, that you have committed serious breaches of the agreed terms and conditions, and
under these circumstances, my client has no alternative but to ask you to vacate the premises and
terminate the agreement dated _____.
(7) That, therefore, through this notice, my client hereby terminates your tenancy, i.e., the tenancy agreement
dated ______ and you are therefore, hereby, called upon i) to vacate the said property and handover the
vacant, peaceful and physical possession thereof to my client, ii) pay arrears of rent of Rs. ______ iii) Rs.
______for damaging the tenanted premises within 15 days of the receipt of this notice, failing which, my
client will be constrained to initiate legal proceedings against you, entirely at your risk as to the cost and
consequences of any such action including the charges of this notice which you may please note.
Yours Sincerely,
Sd. Advocate.
Specimen No. 6
(Notice for Dishonour of Cheque)
NOTICE
(By R.P.A.D.)your risk as to the cost and consequences of any such legal
From: ______
Date: _______
To,
____________
____________
Page 7 of 32
2.6 Specimens
Sir,
Under the instructions of my client (give the name and address of client) ___ and on being authorised by him in this
behalf I address you as under; the contents whereof you may please note:—
(1) My client carries on the business of ____ at ___ place for the past _____ years.
(2) My client states that you have been purchasing the _____ goods from my client since 2015. Due to the
said association my client allowed you to take delivery of the _____ quantity of _____ goods on _____ date
against the cheque dated _____ issued by you.
(3) My client states that you have issued cheque for an amount of Rs. ________ (Rupees _____ words) in
favour of my client dated _____ bearing No. _____, drawn on _____ bank.
(4) My client states that my client presented the said cheque issued by you on_____ date but the same was
dishonoured with the endorsement “insufficiency of funds in the Account of the Drawer” on _____ date vide
returning memo no. _____ of which my client received the information on _____ date from the bank.
(5) My client states that my client has supplied to you the goods/products worth Rs. _____ only on the
assurance that the said cheque will be honoured. My client states that you owe to my client an amount of
Rs. _____ under the said transaction and hence the said cheque was issued by you in discharge of your
liability to pay my client an amount of Rs. _____.
(6) My client states that my client tried to inform you regarding the dishonour of the said cheque but you have
deliberately not answered his phone calls.
(7) My client states that you all the while knew that the said cheque when presented would be dishonoured but
fraudulently in order to cheat my client you have issued the said cheque in favour of my client.
(8) My client states that under the circumstance my client is left with no option but to issue you this notice for
recovery of his legitimate dues from you.
(9) My client has, therefore, instructed me to call upon you and which I hereby do and inform you that you are
called upon to pay an amount of Rs. __________ together with interest at the rate of 24% p.a. within 15
days from the date of receipt of this notice, failing which my client will take appropriate legal action, civil as
well as criminal, particularly under section 138 of Negotiable Instruments Act, 1881 as amended up to date
including the charges of this notice entirely at your risk as to the cost and consequences of any such legal
action which you may please note.
Yours sincerely,
Sd. Advocate
Specimen No. 7
(Notice under Section 138 of Negotiable Instruments Act)
NOTICE
(By R.P.A.D.)
From: ______
Date: _______
To,
______________
______________
Sir,
Page 8 of 32
2.6 Specimens
Under the instructions from my client, Mr. __________ residing at _____, on being authorised by him in this behalf,
I address you as under:
(1) That my client had entered into a contract with you for the supply of _________ quantity of cement bags.
(2) That as per the contract, my client supplied to you ____ number of cement bags. The delivery of the same
has been acknowledged by you by endorsing and signing the delivery challan dated _____.
(3) That, against the supplies made by my client, my client raised bill no. _____ dated _____ of Rs.1,00,000/-
(Rupees One Lakh only)
(4) That my client states that against the aforesaid bill you issued a cheque of Rs. 1,00,000/- (Rupees One
Lakh Only) to my client bearing cheque No. ______ drawn on _______ bank dated ____________.
(5) That my client presented the said cheque on ________ date; however the bank has returned the said
cheque to my client with an endorsement “Dishonoured for insufficiency of funds.” My client states that you
have cheated my client and you fraudulently issued the said cheque knowing fully well that the same would
be dishonoured.
(6) That my client states that as the cheque has been dishonoured you have committed an offence under
section 138 of Negotiable Instruments Act and are also liable under the civil law.
(7) That my client, therefore, through this notice, calls upon you to make the payment of Rs. 1,00,000/- within
15 days from the date of the receipt of this notice, failing which, my client will be constrained to initiate
criminal as well as civil proceedings against you entirely at your risk as to the cost and consequences
thereof which you may please note.
Yours sincerely,
Sd. Advocate
Specimen No. 8
(Notice for Compensation for Defect in Goods)
NOTICE
(By R.P.A.D.)
From ______
Date: _______
To,
____________
____________
Sir,
Under the instructions of my clients Mr. _____ and Mr. _____ (give the name and address of clients) and on being
authorised by them in this behalf, I address you as under; the contents whereof you may please note:-
(1) My clients state that they are farmers and are carrying on farming at _____ place for the past _____ years.
(2) My clients state that my clients purchased _____ (state the type of seeds) seeds of _____ quantity from
you on _____date for the purpose of cultivation vide receipt no. _____ dated _____.
(3) My clients state that the _____ seeds on sowing did not germinate as the _____ seeds were defective. My
clients state that the seeds were sown only after preparing the soil for sowing the _____ seeds.
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2.6 Specimens
(4) My clients state that my clients informed you about the same on ______ date and asked you to visit the
field. But you neither responded to my client’s complaint nor did you visit the fields where the seeds were
sown.
(5) My clients state that it is on the permit granted by the _____ Agricultural Officer that the seeds were
purchased from you. My clients on _____ date informed the Agricultural Officer that the seeds are sown
but have not germinated. The Agricultural Officer visited the fields on _____ date confirmed that the seeds
were sown but there was no germination. The Agricultural Officer also sent a letter regarding the same on
_____ date.
(6) My clients state that my clients have suffered losses due to the defective _____ seeds sold by you to my
clients. My clients have suffered losses to the tune of Rs _____. My clients state that my clients are also
entitled to recover the price/cost of the seeds from you. My clients state that my clients have no other
source of income other than the agricultural activity.
(7) Therefore, through this notice you are hereby called upon to pay my clients Rs. _____ price/cost of _____
seeds purchased from you and Rs. _____ as compensation for the losses suffered by my clients due to
defective seeds, within 8 days of receipt of this notice, failing which my client will be constrained to initiate
legal proceedings against you, entirely at your risk as to cost and consequences of any such legal action
including the charges of this notice of Rs. _____ which you may please note.
Yours Sincerely
Sd. Advocate
Specimen No. 9
(Notice for Insurance Claim)
NOTICE
(By R.P.A.D.)
From: ______
Date: ______
To,
____________
____________
Sir,
Under the instructions of my client (state the name and address of client) and on being authorised by him in this
behalf, I address you as under, the contents whereof you may please note:-
(1) My client states that my client is the owner of _____ vehicle bearing registration no. _____. The said
vehicle has been purchased by my client on _____ date from _____ dealer.
(2) My client states that my client has insured the said vehicle with you bearing policy no. _____. During the
period of the validity of the insurance, the said vehicle was involved in an accident. The accident occurred
on _____ date at _____ place.
(3) My client states that thereafter my client filed his claim with you for Rs. 2,00,000/- (Rs. Two lakhs only). My
client states that you appointed a surveyor to assess the damage to the vehicle and the surveyor has
passed the claim of Rs. 1,75,000/-.
(4) My client states that you have denied the claim of my client on the ground that the said vehicle was
registered to carry five passengers apart from the driver but at the time of the accident there were eight
passengers in the said vehicle. You have further alleged that these persons were being carried for hire, in
violation of the terms and conditions of the policy dated _____.
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2.6 Specimens
(5) My client states that rejection of my client’s claim on the aforesaid alleged ground is not legal and proper.
(6) My client states that the persons travelling in the said vehicle are the family members and relatives of my
client and were travelling to _____ place on _____ date to attend the house-warming ceremony at my
client’s uncle’s place at _____. Thus your allegation that passengers had paid charges to my client is false
and imaginary.
(7) My client states that the accident did not occur on account of excess passengers as alleged by you in your
letter dated _____. My client states that, my client has not committed any breach of the terms and
conditions of the policy dated _____.
(8) My client states that you are trying to avoid the legitimate claim put forth by my client on false and flimsy
grounds.
(9) Therefore, my client through this notice calls upon you to pay my client an amount of Rs. 2,00,000/-
together with interest at the rate of 12% p.a. from the date of the claim till its actual realisation within 7 days
of receipt of this notice, failing which my client will be constrained to initiate legal proceedings against you,
notice of Rs. _____ which you may please note.
Yours Sincerely,
Sd. Advocate
Specimen No. 10
(Notice for Compensation for Deficiency in Services)
NOTICE
(By R.P. A.D)
From: ______
Date: ________
To,
____________ Transport Company Ltd.
____________
Sir,
Under the instructions of my client _______________ (give the name and address of client) and on being
authorised by Mr. _____, Director of the company, in this behalf I address you as under, the contents whereof you
may please note:
(1) My client states that, my client is a ________ Tea Company Ltd., having its registered office at _____. In
the course of its business my client had entrusted to you a consignment of tea of the value of Rs.
________ to be delivered at _____ place.
(2) My client states that the freight charges were to be paid by the consignee at _____, destination at the time
of taking delivery by the consignee.
(3) My client states that the said consignment was not delivered by you, i.e., _____ Transport Co. Ltd. as
agreed.
(4) My client on _____ date received complaint from the consignee regarding non-receipt of the consignment.
When my client inquired regarding the same with you, Mr. _____ of your company informed that the
consignment has been mistakenly/erroneously delivered on some other address. The said Mr. _____ also
assured my client that the consignment would be delivered soon to the consignee.
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2.6 Specimens
(5) My client states that on _____ date your representative wrongly informed that the consignment had been
delivered to the consignee at _____ on_____ date but failed to furnish any proof of delivery of the
consignment.
(6) My client states that on _____ date Mr. _____ from your office informed that since the delivery of the goods
was not taken for a long time, the goods have been auctioned as per the terms of the goods receipt and
that the money realised by auction of the goods was appropriated towards freight and other expenses.
(7) My client states that as per clause 6 of the goods receipt, “The Transport Operator shall have the right to
dispose of the goods after 30 days of arrival after giving to the Consignor, the Consignee Bank and the
holder interested at least a minimum of 15 days notice of such disposal of goods.” My client says that no
notice was given by you as required by the above clause (6) either to my client or to the consignee.
Moreover, no intimation has been sent regarding how much proceeds have been realised on auction.
(8) My client states that due to all this my client has suffered loss of Rs. _____ for which you alone are
responsible and liable. My client states that you are also guilty of deficiency in services.
(9) Therefore, through this notice you are hereby called upon to pay my client Rs. _____ together with interest
at the rate _____%, failing which my client will be constrained to initiate legal proceedings against you
notice of Rs. ________ which you may please note.
Yours sincerely,
Sd. Advocate
Specimen No. 11
(Notice to Claim Maintenance)
NOTICE
(By R.P.A.D.)
From: ______
Date: _______
To,
___________
___________
Sir,
Under the instructions of my client, Mrs. ____________ residing at _________ & on being authorized by her in this
behalf, I address you as under the contents whereof you may please note:
(1) My client Mrs. ________ is your legally wedded wife. My client states that out of the wed lock a son is born
and has been named Master ____________ and he is ___________ years old.
(2) That my client states that within 2 years of the marriage you started staying separately with one
Miss__________________.
(3) That my client states, that you have failed and neglected to provide the necessary maintenance amount to
my client and her son by name ________.
(4) That my client has studied only up to 7th std. She has no proper job. Her parents are poor and are working
as construction labourers / workers.
(5) That my client works as a domestic help, but the income she is earning is too meager to maintain herself
and her son named ____________.
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2.6 Specimens
(6) That my client states, that you are working as junior clerk in ________ college and your monthly salary is
Rs. ___________/-.
(7) That my client states, that now my client wants to enroll her son in a school and thus for the education of
the son my client needs finances.
(8) That my client states that you are under legal obligation to provide maintenance to my client and her son
________ as she is your legally wedded wife and Master ___ is your son.
(9) That my client, therefore, calls upon you to pay my client an amount of Rs. ______/- as maintenance to her
& her son every month, failing which my client will have no alternative, but to initiate legal proceedings
against you for her legitimate claim of maintenance, entirely at your risk as to the cost and consequences
of any such legal action which you may please note including the charges of this notice of Rs. _________/-
.
Yours sincerely,
Sd. Advocate
Specimen No. 12
(Notice for Restitution of Conjugal Rights)
NOTICE
(By R.P.A.D.)
From: ______
Date:_______
To,
______________
______________
Madam,
Under the instructions of my client, Mr. _________ residing at ________ and on being authorised by him in this
behalf, I have to address you as under:—
(1) That as per the information given by my client, my client states that my client and you got married on
____________(date) at ________ (place) according to Hindu religious rites, rituals and ceremonies.
(2) My client states, that after the solemnisation of marriage, you came to reside with my client.
(3) That on __________ date, that is, on the third day of the marriage, you along with my client visited your
parent’s house for performing some religious rites as is customary. On performing the ‘pooja’ and other
rites and after having meals, you requested my client, that you wanted to stay with your parents and would
return to your matrimonial home the next day to which my client readily agreed.
(4) That my client states, that to his utter shock and surprise you never came back to the matrimonial home.
All this has caused a lot of embarrassment, anxiety and humiliation to my client.
(5) That my client states that he tried to meet you personally on several occasions but, you avoided meeting
him. Now, it is almost four months, but there is no communication from your end.
(6) That my client states that even when his parents came to meet you and your parents and requested your
parents to send you to the matrimonial home, your parents assured my client’s parents that in a week’s
time, you will return to your matrimonial home, but you never returned to your matrimonial home as per the
assurance given by your parents.
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2.6 Specimens
(7) That my client states that in spite of this strange and rude behaviour on your part, my client is still ready
and willing to forgive and forget the past, and wants to start the matrimonial life with you and therefore,
wants you to come back to your matrimonial home and cohabit with my client.
(8) That my client states that you have withdrawn from the society of my client without any reasonable excuse
or ground.
(9) That my client, therefore, through this notice hereby, calls upon you to return to your matrimonial home,
within 8 days from the date of receipt of this notice, failing which my client will be constrained to file the
petition for restitution of conjugal rights against you, which you may please note.
Yours sincerely,
Sd. Advocate
Specimen No. 13
(Notice for Compensation for Defamation)
NOTICE
(By R.P.A.D.)
From ______
Date: ________
To,
____________
____________
Dear Sir/Madam,
Under the instructions of my client, Mr. _______ residing at________ and on being authorised by him in this behalf,
I address you as under, the contents whereof you may please note:
(1) That my client is working as Head clerk in ________ college, at ________ (address). My client further
states that you are working as Junior clerk in the same college and are subordinate to my client.
(2) That my client states that in the month of May ’20----, at least 1000 copies of college’s prospectus were
sold. The responsibility of selling the prospectus, collecting the cash and handing over the same to the
head clerk at the close of working hours everyday is your responsibility.
(3) My client states that you did not hand over the amount collected from the sale of prospectus to my client.
However, when my client started enquiring about the money, you initially gave evasive replies and later
told my client to give you 8 days’ time to deposit the amount. After 8 days when my client asked for the
money, you started abusing my client and threatened him that you will level false charges of sexual
harassment against him.
(4) That on _________ (date), my client informed the Principal, Mr. __________ about the said
misappropriation of funds and officially lodged a complaint against you with the authorities.
(5) That on ________________ (date) you gave a reply to the complaint alleging therein, that my client has
sexually harassed you.
(6) That thereafter, an inquiry was conducted by the college and it was found that you have misappropriated
the funds and that there was no truth or substance in the allegations regarding sexual harassment leveled
against my client by you.
(7) That my client states that due to all this, my client had to face a lot of embarrassment, harassment and
humiliation. Even his family life was disturbed because of the serious allegations made by you. All this has
resulted in loss of reputation and standing of my client for which you alone are responsible.
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2.6 Specimens
(8) That my client, therefore, through this notice calls upon you to tender an unconditional apology to my client
and pay compensation to the tune of Rs ___________/- within 8 days from the date of receipt of this
notice, failing which, my client will be constrained to initiate legal proceedings against you at your own risk
as to the cost and consequences of any such action which you may please note, including the charges of
this notice to the tune of Rs. ____________/-.
Yours sincerely,
Sd. Advocate
Specimen No. 14
(Notice to Refrain from Creating Third Party Interest in Property)
NOTICE
(By R.P.A.D.)
From: _________
Date: _________
To,
______________
______________
Sir,
Under the instructions of my client, Mrs. ________ residing at _______ and on being authorised by her in this
behalf, I have to address you as under:
(1) That my client is residing in a duplex flat at _________ (address). My client states that the said flat now
belongs to my client by virtue of WILL dated _________ made by her father, late Mr. _______________.
(2) That my client states that my client is in possession and custody of the WILL made by her father and has
initiated probate proceedings for the same.
(3) That my client states that you are my client’s elder brother. During the life time of late Mr. ____________
you had taken from him custody of all family valuables along with the Fixed Deposit Receipts, Shares etc.
My client’s father late Mr. _________ had signed all relevant papers, documents, etc. so that you can
effectively get the legal title and ownership of all the above mentioned movables.
(4) My client states that only the flat mentioned in para 1 herein above is given to my client by her father
through WILL dated ___________.
(5) That my client states that based on some papers/documents on which you had obtained signatures of late
Mr. _____________, you are trying to dispose of the said flat and are trying to create third party interest in
the flat fraudulently and high handedly, and thereby you are trying to deprive my client of her legitimate
right. You are fully aware of the WILL and the contents thereof.
(6) That my client, through this notice therefore, calls upon you to refrain from dealing with the said flat (which
belongs to my client) in any manner whatsoever and any such third party interest created by you
fraudulently will be of no legal consequences and will not be binding on my client which you may please
note.
Yours sincerely,
Sd. Advocate
Specimen No. 15
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2.6 Specimens
(Notice for Expulsion of a Partner)
NOTICE
(By R.P.A.D.)
From: ________
Date: ________
To
Mr. ____________________
Partner of ________________ Firm
Address: _________________
________________________
Sir,
Under the instructions of my clients, (1) (Name______________) residing at ___________________, (2)

(Name_____________) residing at ____________ who are partners of ___________________ (Name of the firm)
firm having its office at ____________ and being authorised by them in this behalf, I am addressing you this notice,
the contents whereof you may please note:
(1) My clients state that __________ is a partnership firm duly registered with the Registrar of firms bearing
registration No. ____________and carries on the business of ____________ for the past
____________years.
(2) My clients state that they are the partners of the said firm along with you. My clients state that for the last
one year, you have been constantly and continuously engaged in anti firm activities which have resulted in
huge losses to the firm. My clients state that contrary to the terms of the Partnership Deed dated
___________ you have been submitting tenders/quotes in the name of your wife and have got purchase
orders/contracts worth Rs. __________. My clients are enclosing herewith the detailed list wherein, the
customer list of the firm has been misused by you and you have without the knowledge and consent of my
clients quoted price marginally less than the firm price and got all the contracts awarded in favour of your
wife who runs a proprietary concern by name _________.
(3) My clients state that the said acts committed by you are conflicting with the interest of the partnership firm’s
business and it is a very serious misconduct on your part. Therefore, my clients sent you an email dated
_________, seeking your clarification in this regard and also informed you about the meeting of the
partners to discuss this issue and the necessary steps to be taken in this regard. My clients also tried to
talk to you over the phone, however, you have been very evasive and have refused to attend the meeting
nor you have replied to the mail. My clients state that you have committed serious breaches including
clauses _____, _____ and _____ of the Partnership Deed dated _____.
(4) My clients state that under these facts and circumstances, my clients are left with no alternative, but to
expel you from the partnership, as you have committed serious breaches of the Partnership Deed
intentionally and deliberately and have caused huge losses to the partnership firm. Therefore, by the
resolution passed in the meeting of the partners dated __________, you are hereby informed that you are
expelled from the _______ Partnership firm from _______ date.
(5) My clients state that you are liable to pay Rs. _________ /- (Rupees _________) for the losses incurred by
the firm on account of your acts. You are hereby, called upon to hand over all the data, confidential
information including the customer list and passbooks of __________ banks of the partnership firm
forthwith at the firms office.
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2.6 Specimens
(6) My clients state that my clients are enclosing herewith, the details of each and every order fraudulently
obtained by you and the losses incurred by my clients due to the same. The said annexure shall be treated
as part and parcel of this notice.
(7) Under the aforementioned facts and circumstances, my clients have therefore, instructed me to call upon
you and instruct you to (i) refrain from representing as a partner of ________ Partnership firm; (ii) pay my
clients an amount of Rs ____________/- (Rupees____________) for the losses suffered by my clients
because of you, together with interest at the rate of ___%, failing which, my clients will be constrained to
initiate legal proceedings against you entirely at your risk as to the cost and consequences of any such
action including the charges of Rs. _______ of this notice which you may please note.
Yours sincerely,
Sd. Advocate
Specimen No. 16
(Notice for Specific Performance of Contract))
NOTICE
(By R.P.A.D.)
From: ______
Date: _________
To,
______________
______________
Sir,
Under the instructions of my client (give the name and address of client) and on being authorised by him in this
behalf I have to address you as under the contents whereof you may please note:
(1) My client states that my client had entered into an agreement to sale with you on _____ date for the
property at _____.
(2) My client states that my client has paid an amount of Rs. _____ as earnest money vide cheque no.
________ dated _______ drawn on ________ bank. My client states that you have received the said
payment and have also acknowledged the same.
(3) My client is ready and willing to perform his part of obligations under the agreement executed on _____
date between you and my client.
(4) My client further states that as per clause _______ of the said agreement dated _____, the deed of
conveyance is to be executed within _____ months from the date of the said agreement. My client states
that despite several reminders you have failed and neglected to comply and to execute conveyance deed
in favour of my client.
(5) My client states that my client has already approached the bank and other authorities in order to make
beneficial use of the aforesaid property. The deliberate delay and evasive approach on your part is causing
great inconvenience and financial losses to my client.
(6) My client states that under the prevailing circumstances my client is left with no option but to serve you the
present notice.
(7) My client states that if you fail to complete the transaction, i.e., execution of sale deed/Deed of
Conveyance within 15 days from the date hereof, my client will be constrained to initiate legal proceedings
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2.6 Specimens
against you including filing of a suit for specific performance of the said agreement for sale with damages
entirely at your risk as to the costs and consequences of any such legal action which you may please note.
Yours sincerely,
Sd. Advocate
Specimen No. 17
(Notice for Cancellation of Tender Process and Call for Fresh Quotes)
NOTICE
(By R.P.A.D.)
From: _________
Date: _________
To,
_____________ Research Institute
At ___________
_____________
Through its Chairman
Sir,
Under the instructions of my client (Name____________), which is an advertising agency having its office at
____________________________, represented by ____________ who resides at …………………, and being
authorised by the advertising agency in this behalf, I am addressing you this notice, the contents whereof you may
please note.
(1) My client states that my client is carrying on the business of outdoor-advertising and publicity work for the
past ……… years in ________ (Place).
(2) In the course of business, my client came across your notice published in the daily newspaper
____________dated ____________, inviting tenders/bids for putting up hoardings at your premises. As
per the said notice, my client submitted its bid by quotation/bid dated ……………. However, my client
states that there are certain inherent drawbacks in your notice inviting tenders (N.I.T.).
(3) My client states that the said notice inviting tenders (N.I.T.) dated ____________ is vague, absurd and has
not set out in unequivocal and clear terms the entire scope of work. My client states that the necessary
details which would inform the prospective bidders of the scope and ambit and duration of the work were
not stated in the notice inviting tender.
(4) My client states that the N.I.T. did not state the following details:–
(a) The number of hoardings was not mentioned.
(b) The sizes of the hoardings were not mentioned.
(c) The duration or tenure of the tender was also not mentioned.
(d) The NIT surprisingly did not provide for any security-deposit or earnest-money deposit.
(e) The NIT is silent about the experience of the bidders in this field.
The aforementioned facts point out as to how the notice inviting tenders (NIT) is vague and
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2.6 Specimens
incomplete.
(5) My client states that when the notice inviting tenders lacks the significant and essential details and is
vague, then, on this count alone the entire tender process needs to be set aside and therefore, the NIT
dated ________ issued by you needs to be set aside.
(6) My client states that after submission of the quotes, my client was constantly in touch with your Institute,
checking on the date and details for the purpose of opening of tenders.
(7) My client states that without informing and inviting my client, the tenders were opened. It is a well-known
and established practice that, the date for opening of the tenders/bids is informed to all the bidders and it is
in their presence that the bids/quotations are opened. My client states that you deliberately, acting hand in
glove with one of the bidders viz. __________________, did not invite my client at the time of opening of
the tenders. Fair play in action and transparency is a must when tender process is involved, and
particularly when the authority involved is a public undertaking, and you have failed to comply with it. All
this only goes to show your ulterior motive and mala fide intention, to favour someone, i.e.,
_______________, for reasons best known to you.
(8) My client states that when the tenders were opened, it appears that in the “amount” column, one of the
bidders viz. _____________________, has quoted the amount in pen. It is to be noted that the said
amount is not typed, which is a prerequisite in fair and proper dealings, especially in the tender process.
On this count alone, the quotation of ____________________ should have been disqualified.
(9) My client states that my client’s offer/bid was the highest, which also provided for escalation of ______%
every year, and which was not provided by the other bidders. Inspite of all this, the contract was awarded
to ____________, who is neither the highest bidder nor has provided any escalation.
(10) My client states that it is very shocking to learn that an Institute of your repute and stature has indulged in
such unethical and illegal means to favour a party, which has also resulted in losses to you.
(11) My client states that in the past without any call for tenders the contract for putting up hoardings has been
awarded by your institution in favour of the same party namely _____. My client states that when serious
objections were raised about the same you decided to call for tenders to put up the said hoardings.
(12) My client states that on this backdrop, the tender notice issued by you seems to be an attempt to
whitewash the previous acts of awarding contracts to ____________ without inviting tenders.
(13) My client states that on ____________ date, the Institute’s authority called my client and requested my
client to enhance the amount of rental charges for the benefit of the Institute. To this, my client issued a
letter on ____________, thereby, stating that the Institute should consider not just the highest amount, but
also follow the guidelines of the Bombay Provincial Municipal Corporation (Control of Advertisement &
Hoardings Rules), 2003, regarding the sizes of the hoardings.
(14) My client states that my client issued another letter on ____________ date, in which he expressed the
desire to explain and elaborate many issues to you, and that, my client was not interested in disclosing his
best price of the bid to a single person then representing the Institute (as my client felt that the said person
had joined hands with Mr.____________).
(15) My client states that my client thereafter, issued a letter on ____________ with an offer of Rs. ____ lakhs
p.a. for the bid of hoardings for a duration of ____ years. As against this, Mr.____________ quoted an
amount of Rs. ____________/–. However, to the utter surprise and shock of my client, the contract was
awarded to Mr.____________, though they were the second-highest and without any valid reasons
therefor.
(16) My client states that on perusal of all the quotes received by you in response to the tender-notice dated
____________, other than the quote/bid of my client, it appears that all of them have formed a cartel and
thus, the entire tender-process stands vitiated, and under these circumstances, the action on your part of
entering into an agreement with ____________ for the display of hoardings speaks volumes about the
failure, on the part of an esteemed organisation like yours, to follow fair play in action. My client states that
the other quotes are used by the ____________ as supporting quotations only, as can be seen from the
bidding amounts quoted by them in their respective quotes. Since, the bidders/tenderers have formed a
cartel, thus the tender-process needs to be quashed and set aside.
(17) My client states that not only do the bids go to show that there exists a cartel, but, even the agreement
executed between you and ____________ goes to show the same.
Page 19 of 32
2.6 Specimens
(18) My client states that Mr. ____________ is one of the bidders, and the bid letter is signed by one
____________, an authorised signatory of ____________. The same ____________, with the same
address, has signed the said agreement (between you and ____________) as a witness. All this goes to
prove the mala fide and the fraudulent intentions of you and Mr.____________.
(19) My client states that as a cartel has been formed, the tender-process stands vitiated and cannot be acted
upon, as the same is illegal. Therefore, the agreement executed between you and ____________ is not
legal, and needs to be cancelled forthwith.
(20) My client states that your action of awarding the contract to ____________is actuated by bias, favouritism
and nepotism, and therefore, the same needs to be set aside and cancelled.
(21) My client states that all this has resulted in losses to you to the tune of about Rs. ______ lakhs per year, by
not awarding the contract to the highest bidder, i.e., my client.
(22) My client states that my client has lost a great business opportunity and has suffered business loss
because of the high-handed, unfair and unethical methods adopted by you for awarding the contracts. My
client also states that the hoardings put up by Mr. ____________ are not as per the prescribed rules of the
Bombay Provincial Municipal Corporation (Control of Advertisement & Hoardings Rules), 2003, and to this
illegal act, you also have become a party, which you may please note.
(23) My client has, therefore, instructed me to call upon you to terminate the agreement dated ……………
between you and ____________ forthwith, as the same is not legal and is in gross violation of the
established principles of the tender-process, and to award the contract in favour of my client, my client’s
bid being the highest; or, in the alternative, to call for fresh quotations in the interest of the Institute as well
as the prospective bidders; failing which, my client will be constrained to initiate civil and/or criminal
proceedings against you entirely at your own risk as to the cost and consequences of the same including
the cost of this notice of Rs. _______/– which you may please note.
Yours sincerely,
Sd. Advocate
Specimen No. 18
(Notice to Execute Cancellation of Sale Deed and
Power of Attorney and for Compensation)
NOTICE
(By R.P.A.D.)
From: ________
Date: ________
To,
Mr. ____________
_______________
_______________
Sir,
Under the instructions of my clients, _____________ and ________________ residing at _________________ and
on being authorised by them in this behalf, I am addressing you this notice, the contents whereof you may please
note.
Page 20 of 32
2.6 Specimens
(1) My clients are the undivided shareholders of the property, bearing S. No. ______ admeasuring
__________, situated at _____________ (Place), hereinafter referred to as the “said property”.
(2) My client states that the said property is an ancestral property, and the same was given as Inam to the
forefathers of my client. My client states that no partition or division of the said property is done till date.
The said property is, therefore, jointly owned, possessed and enjoyed by my clients along with other
owners.
(3) My clients state that my clients came to know that Mr. _____________, (who is one of the co-owners of the
said property) had executed a power of attorney in your favour to carry out certain corrections in the
Revenue records, and the said power of attorney has been cancelled and revoked by notice dated
________ and also due to the death of Mr.___________ on ________date.
(4) My clients state that you are fully aware that the aforementioned person did not have any right to execute
the power of attorney in your favour without the consent or authorisation, from my clients and other owners,
as the said property is a joint property.
(5) My clients state that the execution of the power of attorney in your favour itself is illegal and thus you have
no right to deal with the property of my client in any manner.
(6) My clients state that they have reliably learnt that you are trying to grab the property of my client either
under the alleged power of attorney or otherwise by executing an agreement to sell in your favour. My
clients state that neither my clients nor any of the other owners of the property have authorised you to
execute the alleged agreement to sell regarding the said property of my clients in your favour.
(7) My clients state that you with ulterior motives and mala fide intentions to defraud and divest my clients of
their joint property, are trying to execute such agreements. By doing so, you have committed the offence of
cheating. It is pertinent to note that no consideration has been exchanged between you and my client, nor
is any consideration given to you to deal with the property of my clients. My clients are in possession, use
and enjoyment of the said property and have no intention to part with it.
(8) My clients, therefore, state that you have no right to deal with the property of my clients either under the
alleged power of attorney or otherwise. Therefore, the agreement to sell executed by you needs to be
cancelled forthwith from the record of rights, as the same is null and void.
(9) My clients have, therefore, instructed me to call upon you, which I hereby do, to refrain from dealing with
the property of my clients in any manner whatsoever, and to forthwith get the alleged agreement to sell
cancelled and not to act upon the said agreement as the same is null and void. Also inform my client about
the cancellation of the same, and accept the cancellation of the said power of attorney, failing which my
client shall be constrained to initiate the necessary civil proceedings against you for declaration that the
alleged agreement to sell and further documents executed by you, if any, stand cancelled and revoked
being null and void, and further shall also be constrained to initiate criminal proceedings against you for
cheating and criminal breach of trust as may be directed by me to my client, entirely at your own risk as to
the cost and consequences of the same including the cost of this notice of Rs. ___________/– which you
may please note.
Yours sincerely,
Sd. Advocate
Specimen No. 19
(Notice to Refrain from Acting as Director of the Company)
NOTICE
(By R.P.A.D.)
From: _________
Date: _________
To,
Page 21 of 32
2.6 Specimens
Ms. ____________
_______________
_______________
Madam,
Under the instructions of my client Ms. _____________, residing at _____________ and on being authorised by
her in this regard, I am to address you as follows; the contents thereof you may please note:
(1) My client states that _____________ Pvt. Ltd., is a Company registered under the provisions of Indian
Company’s Act, 1956 having its registered office and place of business at _____________.
(2) My client states that _____________ Pvt. Ltd. was incorporated on ________ date with two Directors, i.e.,
you and my client. The object of the company was to run a service apartment and all the activities
connected and incidental to it, including providing of ethnic cuisine to the guests staying at the service
apartment. The capital of the company was Rs. _______ at the time of incorporation, contributed by both
the Directors in equal proportion.
(3) My client states that initially the business and working of _____________ Pvt. Ltd., was going on smoothly
and you and my client were working and conducting the business in consultation with each other and by
mutual cooperation.
(4) My client states that in the course of time you started conducting the business of the company in an
arbitrary and very high-handed manner, without consulting my client and without the consent and
knowledge of my client. My client tried to reason out with you that the decisions have to be taken
unanimously in the meetings of Directors; but you paid no heed to the same. My client states that you
started taking complete control of things in your hand and in complete disregard to the role and position of
my client in the company.
(5) My client states that all major and minor decisions such as carrying out the repairs in the service
apartment, selecting of vendor for buying vegetables and groceries or hiring of services of Staff for the
business of the Company etc., you started taking all the decisions unilaterally. My client states that
because of all this my client was completely disappointed and unhappy. Even the financial decisions were
taken by you unilaterally.
(6) My client was therefore, completely frustrated and fed up with your style of working and thus, stopped
taking any decisions pertaining to the day-to-day business activities of the company, since ___________
date. Your aggressive and high-handed behaviour compelled my client to withdraw from the day-to-day
business activities of the Company.
(7) My client states that as my client had stopped participating into the company’s day-to-day activities, you
and my client thereafter decided to close the Company sometime in the month of _________, year _____.
My client states that despite the said understanding reached, you continued to carry out the activities of the
company on your own.
(8) My client states that you have not maintained the accounts of the company properly. The statement of
accounts shows that withdrawals of very huge amounts have been made by you from _____________
(date) onwards. In fact, my client is shocked to know that the signatures on the balance sheet for the
Financial year 20____, and 20____ in the column of Director, the signature of my client has been forged.
My client states that this is a very serious offence. My client reserves her rights to initiate appropriate
criminal proceedings against you and all others involved in the said act of forgery. My client vehemently
states that my client has never signed the balance sheet of the company for the financial year ____, ____
and ________ as allegedly appears on the balance sheet of the Company, i.e., _________________Pvt.
Ltd.
(9) My client states that her signatures have also been forged on the Director’s report dated _________and
_______. My client states that the notice dated __________ issued by _________________ Pvt. Ltd. on
the ____ Annual General Meeting of the company which was held on _____________ again the signatures
of my client have been forged against the Column of Director of the company.
Page 22 of 32
2.6 Specimens
(10) My client states that even in the notice dated __________ pertaining to Annual General Body Meeting of
_________________ Pvt. Ltd., which was allegedly held to consider and adopt the report of Auditors by
the Director and the audited statements of accounts for the year ended on 31st March, ______ and to
appoint Auditor and fix their remuneration, in the signature column of the second Director, the signatures of
my client have been forged.
(11) My client states that on _____________ (date) a new Director has been appointed to the Board of
Directors of _________________ Pvt. Ltd., namely Mr. ___________, without the knowledge and consent
of my client. However, in the said letter appointing Mr. _________________ as the Director of the
Company, the signature of my client has been forged. My client states that by forging the signature of my
client you are mischievously and with deliberate design are trying to implead my client into the working and
business of company, i.e., _________________ Pvt. Ltd., with the mala fide intention to pass on all
financial and taxation liabilities to my client.
(12) As already stated hereinabove, my client states that from ________________ (date) my client has
withdrawn from the working of the Company and hence, all tax liabilities or other liabilities are only to your
account and you are responsible for the same. My client states that in order to fasten my client with the
liability of taxes, you have committed the act of forgery, i.e., forging the signatures of my client on the
balance sheets and on various other documents, thereby, giving an impression to the third party that, my
client along with you is answerable for service tax and other liabilities. My client strongly objects to the
same and denies the same.
(13) My client states that she is also lodging a complaint to the concerned Police Station pertaining to the
forgery committed by you. My client further states that in fact the appointment of Chartered Accountant and
Auditor was not made after consultation with my client. The same has been done without the knowledge
and consent of my client. It appears that you in collusion and in connivance with the Accountant and the
Auditor are creating false and bogus balance sheets and other documents, thereby, forging the signature
of my client on it. My client, therefore, states that my client has neither made any withdrawals from
___________ account nor has she participated in any decisions nor has she been given any amount in the
form of Director’s remuneration or in the form of profits from the company’s account. Thus, the question of
payment of any taxes either in the form of service tax or others does not fall on the shoulder of my client,
which you may please note. Failure to comply with any statutory obligation is your responsibility and liability
and not of my client.
(14) My client has, therefore, instructed me to call upon you to direct, which I hereby do, to refrain from carrying
out any activity of the company unilaterally with Mr. ______________ who has been illegally inducted as
Director and further refrain from doing any illegal act adverse to the interest and right of my client., failing
which, my client will be constrained to file civil as well as criminal proceedings including the Petition before
the Company Law Board for removal of Directors and closure of the company entirely at your risk and
consequences arising out of the same including the notice charges of Rs. ______/- which you may please
note.
Yours sincerely,
Sd. Advocate
Specimen No. 20
(Notice for Trespass and Damage to Property)
NOTICE
(By R.P.A.D.)
From: _________
Date: _________
To,
___________,
Page 23 of 32
2.6 Specimens
___________
___________
___________
Sir,
Under the instructions of my client, ………………… residing at ……………………, and on being authorised by him
in this behalf, I am addressing this notice to you, the contents whereof you may please note:
(1) My client states that my client is the owner of the property bearing Plot No. _________ out of Survey No.
__________ (Give complete description of the property), hereinafter, referred to as the said property.
(2) My client states that you are the owner of the property, i.e., Plot No. _____ out of S. No. ________ which is
the property adjoining to my client’s said property.
(3) My client states that on _________ date when my client visited his said property, he found some
construction material on the said property and also the barbed wire fencing on the right side of the property
removed. My client enquired with the villagers and they informed my client that, the construction material
has been dumped by you. So also the barbed wire fencing is removed by you.
(4) My client states that thereafter, my client phoned you on _______ date and asked you to remove the
construction material from the said property of my client and also to re-install the barbed wire fencing. My
client states that you spoke very rudely and abused my client and also refused to remove the construction
material and to re-install the barbed wire fencing.
(5) My client states that you are constructing poultry farm and thereby are encroaching on my client’s said
property. My client states that you are guilty of trespass and have caused damage to the said property of
my client.
(6) My client has therefore, instructed me to call upon you to:
(a) Remove all the construction material dumped on my client’s said property by you.
(b) Re-install the barbed wire fencing removed by you.
(c) Refrain from encroaching on the said property of my client either personally or through servants,
agents, employees, etc.
(d) Pay an amount of Rs. ________ for having committed the wrong of trespass and for damaging the said
property of my client.
(7) Failing which, my client will be constrained to initiate legal proceedings against you entirely at your risk as
to the cost and consequences of any such legal action including the notice charges of Rs. ______/- which
you may please note.
Yours sincerely,
Sd. Advocate
Specimen No. 21
(Notice for Recovery of Money and Appointment of Arbitrator)
NOTICE
By R.P.A.D.
From: _______
Date: _________
To,
Page 24 of 32
2.6 Specimens
M/S ABC Pvt. Ltd.
____________
____________
Sir,
Under the instructions of my client, M/s ____________, having office at ____________, represented by its
proprietor Mr. ____________, and being authorised by him in this behalf, I am addressing you this notice, the
contents whereof you may please note.
(1) My client is a proprietary concern carrying on the business of construction of factories, buildings etc. under
the name and style of ____________, and have its registered office at ____________ (Place).
(2) My client states that my client is a reputed construction firm particularly in the field of construction of
factories. You approached my client in the month of ____________ and informed my client about your
plans for construction of a factory-building at ____________ and forwarded the tender for executing civil
works for above referred factory to my client for submitting his offer. The tender duly filled was submitted
by my client on ____________ date to you.
(3) My client states that subsequent to the submission of tender by my client, negotiations took place between
you and my client, and pursuant to the same, in the second week of ____________ you asked my client to
mobilise the manpower and machinery for the purpose of carrying out the work in relation to the
construction of the factory shed and building.
(4) My client states that on ____________ date you handed over to my client the drawings only for the front
compound wall to be constructed initially, and my client commenced and completed the said work to your
satisfaction.
(5) My client further states that on ____________ date, you handed over the drawing of the development of
the area and requested my client to commence the work of land-development wherein the building of the
factory was to be constructed in phase 1.
(6) My client states that out of the total plot, half of the portion of the said land was to be utilised for the
purpose of construction of factory building in the first phase, and accordingly you requested my client to
commence the development of half portion of the land being the first phase.
(7) My client states that in the meantime, on ____________ date, you gave a work order for the total amount
of Rs. ____________ (Rupees ____________ Only) to my client. The same was given in pursuance of the
tender document submitted to you by my client, and pursuant to the said tender which was submitted by
my client on ____________date. That the said work order inter alia stated that the work order shall form
part and parcel of the terms and conditions mentioned in the tender document as well as the previous
correspondence between you and my client.
(8) My client states that since the work of the land development and compound wall was satisfactorily done by
my client, the first Running Account bill dated ______was paid by you.
(9) My client states that as per the work order and the tender document, the work of development of the entire
plot of land was within the scope of the contract, and pursuant to the same, my client had mobilised the
manpower and machinery as well as made arrangements for the purpose of development of the land and
to carry out construction thereon.
(10) My client states that pursuant to the work order, my client was to commence the work of construction of the
factory, and it was your responsibility to give the drawings, designs and the necessary clearances for the
same. However, there was inordinate delay on your part in providing necessary drawings, details and
clearances pertaining to the construction work to my client and as a result of the said delay, my client could
not commence and execute the work immediately as per the scheduled date.
(11) My client states that from day one, my client made every necessary effort to perform his part of the
obligations under the contract. This can be evidenced from the various emails sent by my client to you
informing you about the status of the work and seeking necessary clarifications and details so that the work
can be executed as per the contract, in a time bound manner.
Page 25 of 32
2.6 Specimens
(12) My client states that the construction-work could not commence and progress with the required pace
because of the lapses on your part, particularly due to non-issue of the requisite clearances, drawings and
designs in time, and my client has from time to time brought to your notice the aforementioned lapses.
Disregarding all these facts you are now trying to put the blame on my client for the delay caused, which is
neither true nor supported by any documentary evidence.
(13) My client states that from day one of commencement of the work, there were obstacles by the local
residents, and in the month of ____________, they had made my client stop the work totally with effect
from __________ date. My client had time and again informed you verbally and when no cognisance of
same was taken by you, my client had informed you by email dated _________ about the same. However,
no immediate action for the same was taken by you, and this led to the delay in completion of the work.
(14) My client says and submits that he was always ready and willing to commence the work on the scheduled
date, and had mobilised the manpower and machinery at the site and it is only because of the delay on
your part that the manpower and machinery of my client remained idle for a long time till the actual
commencement of the work. All this has caused great anxiety, additional expenses and enormous losses
to my client.
(15) My client states that my client was required to take continuous follow-up with you, since a lot of drawings,
as mentioned above, which were required at the time of commencement and execution of the work, were
not ready and were not handed over to my client, which affected the progress and pace of the work of my
client.
(16) My client states that certain jobs which were part of the work order dated _____, were assigned to another
contractor by name _____ without the consent of my client. My client states that bringing another
contractor to the site which was in the possession and control of my client caused hindrance, confusion
and nuisance. All this resulted in losses to my client to the tune of Rs. _____. My client states that you had
no right to de-scope the work of my client and the same is contrary to the contract between the parties.
(17) My client states that as per the clause ___ of “Special conditions of contract” of tender document it was
mandatory on your part to make the payment of the Running Account bills within 21 days from receipt of
the same. However, the sixth running account bill, the seventh running account bill and the eighth and the
final bill were not paid in specified time by you, in utter contravention of the contractual terms.
(18) My client states that despite all this, my client rigorously and expeditiously continued to execute the work
order dated _____ till _____ date when you arbitrarily and unilaterally asked my client to stop the work by
your email dated __________.
(19) My client states that till __________ date my client had raised ____________bills and out of the same an
amount of Rs. ______ is outstanding from you as on _______ date.
(20) My client states that it is pertinent to note that till ___________date, except the ____________ bill, all
these bills were checked and certified by the architect and amounts were outstanding under the same also.
However, you conveniently avoided to make payment of the same. My client states that the _________ bill
as well as the final bill have also been certified by the architect on ________ date and ________date
respectively, and in spite of the same, you have avoided to make the payment of the outstanding amount
to my client, though you have expressed your satisfaction about the quality of the work carried out by my
client by your email dated _____.
(21) My client states that my client has written numerous emails to you, calling upon you to settle all the
outstanding bills raised by him for the work executed by him so far.
(22) My client states that you abruptly instructed my client to stop the said work for no fault of my client. The
said act on your part, of abruptly discontinuing the contract, has caused great loss to my client. The said
act on your part is in gross violation of the agreed terms and conditions between you and my client. By
your email dated __________, you called upon my client to stop all the work at the site on “as is where is”
basis on __________date. In the said email, you also informed my client that all payment-related issues
would be sorted out at the Head Office in __________. However, in the same email you have wrongly put
the blame for the delay on my client which my client hereby vehemently objects to and categorically denies
the same.
(23) My client states that you have no right to bring to an end/terminate the agreement between you and my
client unilaterally, arbitrarily, high-handedly and abruptly. Only to deprive my client of his legitimate claims
and dues, you have issued the said email dated __________ directing my client to stop the work and
without assigning any proper and cogent reasons thereof.
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2.6 Specimens
(24) My client states that the said act of unilateral termination of the contract by you is not legal and proper. My
client has been taking constant and continuous follow-up with you for payments to which my client is
entitled. But you have failed and neglected to make the necessary payments to my client.
(25) My client states that whenever my client demanded his legitimate dues under numerous bills raised by him
from time to time, you only gave him false assurances but you never had any intention to make any
payment to my client. My client states that you had promised my client that you would make payment for
an amount __________of Rs. __________ on __________date, and all balance payments before
__________date. However, you did not honour your word and did not make any payment to my client.
(26) My client states that my client had to suffer escalation in the costs of manpower at various levels besides
the cost of material and equipment suffered and required for the project. Therefore, my client is entitled to
enhanced project price of 15 percent than the original contract rates for all the works carried out after the
original contract period of ____ months.
(27) My client states that contrary to the contractual terms agreed, you unilaterally reduced the scope of the
contract, which has resulted in heavy losses to my client, as it affected the entire costing and viability and
profitability of the project. The said act of reducing the scope of the work on your part without my client’s
consent is contrary to the agreed terms and conditions between you and my client.
(28) My client states that as per the work order, the entire work of construction of the factory building was to be
commenced and completed within a period of ______ months and my client was ready and willing to do
the same, and accordingly, immediately upon receipt of the work order, had mobilised the remaining
machinery for the same. However, my client received the first drawings, i.e., footing drawings for factory
building for excavation only on __________ date, i.e., after a span of more than one month from the date
of the work order.
(29) My client states that my client had not received all the required plans and specifications and designs
together at one time, but they were received in piecemeal, with a lot of delays. My client would like to put
the dates of receipt of various drawings required for commencement of the contract work of the factory
building, herein below:–
___________
___________
(30) My client states that without the consent of my client for the de-scoped part of the work, another contractor
by name _____ was called to the work site and he used the material of my client without his consent and
thereby added to my client’s losses. Because of the reduction in the scope of the work, the idling costs
were very heavy, for which you alone are responsible.
(31) My client states that you have given false assurances to my client from time to time, and based on the said
assurances, my client has made commitments to bankers, suppliers and labour-contractors etc. to make
their payments. My client is losing his credibility in the market as he is unable to keep his word about the
payments because of the failure on your part to make the payments on time.
(32) My client states that now the staff of your company as well as Mr. __________ have stopped receiving the
phone calls of my client. My client is put in a very helpless situation due to your approach and behaviour.
(33) My client states that you have no right to withhold any payments of my client, especially when you know
that my client has put in all efforts to execute the work order. Even you have admitted that there are no
issues about the quality of the work executed by my client. All this only goes to show that my client has
performed all his obligations under the contract in an effective and efficient manner without compromising
on the quality.
(34) My client further states that in fact, because of the delay and lapses on your part in submission of the
plans/designs in time, and giving the requisite decisions thereon in time, the work was delayed for a period
of 7 months, and as a result of the same, my client was required to bear the additional cost of manpower
and machinery. Further, on the funds raised by my client, my client was constrained to pay the additional
interest for the period of 7 months, for which you alone are responsible.
(35) My client states that due to lack of proper planning, failure to adhere to the scope of the work, not getting
clearances in time, frequent and last-minute changes in designs, all this caused delay in the execution of
Page 27 of 32
2.6 Specimens
the work order for which you are responsible. Unfortunately, you are now trying to put the blame on my
client for the delay caused. All the allegations made by you, that the delay has been caused because of my
client, are false and fabricated and without any iota of truth in it. The emails sent to you from time to time
amply prove that the delay has been caused by you and not by my client. My client has suffered losses to
the tune of Rs. __________/– because of the delay caused by you.
(36) My client states that my client is entitled to recover from you the following amounts:–
(a) Rs. __________/- amount outstanding against the final bill.
(b) Rs. __________/– for the loss suffered on account of additional over heads and interest on investment
for additional period.
(37) My client reiterates all the contentions and allegations raised by my client through various emails sent to
you, and the same may please be treated as part and parcel of this notice. My client states that all taxes,
levies, charges, liabilities arising from the said contract is your liability and responsibility and not of my
client.
(38) My client states that from the correspondence between my client and you, it seems that you are not ready
and willing to finally settle the claim of my client. My client states that considering the facts and
circumstances, my client hereby demands an amount of Rs. __________ (Rupees
_________________only), from you. You are hereby called upon to make the payment of the said amount
within 15 (fifteen) days from the receipt of this notice.
Please note that in case you do not agree to make the payment of the said amount, it shall be presumed that a
dispute has arisen between yourself and my client with reference to the tender submitted by my client on
__________date and the work order dated __________ and in that case my client would like to invoke __________
clause of the tender document. In that case my client hereby proposes Advocate _________________________ as
the Sole Arbitrator to resolve the dispute which has arisen between the parties, as expeditiously as possible.
Under the circumstances, you are hereby called upon to make the payment of Rs. __________ as stated in para 38
hereinabove, within 15 days of receiving this notice, failing which you are hereby asked to accept the appointment
of the said Advocate __________ as the Sole Arbitrator and my client shall proceed to file his claim-statement
before the said Sole Arbitrator on the date assigned by the sole arbitrator and the arbitration shall proceed
accordingly, entirely at your own risk as to the costs and consequences of the same including the cost of this notice
of Rs. __________ /–, which you may please note.
Yours sincerely,
Sd. Advocate
Specimen No. 22
(Notice under section 80 of CPC)
NOTICE
(By R.P.A.D.)
From: _________
Date: _________
To,
______________ State Government
______________
______________.
Kind Attention: Mr. ___________

Page 28 of 32
2.6 Specimens
Sir,
Under the instructions of my client Mr. _______, residing at: _______ and on being authorised by him in this behalf,
I address you as under, the contents whereof you may please note and also note that this notice is under section 80
of the Code of Civil Procedure:
(1) My client states that my client has been providing canteen and mess services to various corporate offices
etc. for the past 11 years. My client states that my client had submitted his offer dated _____ to provide
canteen and mess services at your training centre at _____.
(2) My client states that after due negotiations and discussions, you entered into an agreement with my client
on _____ date in order to provide canteen and mess services at your training centre for a duration of 2
years.
(3) That my client states that my client as per the terms of the agreement dated _____ started running the
canteen and providing mess services from 1st of April 20_____.
(4) That my client states that you called upon my client to supply additional food items and further informed my
client that for the said additional supplies made, payment shall be made by the 5th of each month as and
when the payment becomes due and payable.
(5) My client states that my client has supplied additional food items for 10 months and the total bill amount
payable by you is Rs. ________/-. However, in spite of repeated demands made by my client to you, you
have failed and neglected to make the said payments.
(6) That my client states that your officer Mr. ______ and Mr. _______ have acknowledged that the said
additional food items were supplied by my client.
(7) That my client states that he is small supplier and whatever he earns by running the canteen and the mess
is his only source of income. My client states that my client has already incurred huge expenses in order to
supply the additional food items as required by you and that now my client is in dire need of money.
(8) My client states that my client is now left with no money to buy vegetables, groceries etc. to continue to run
the canteen and the mess. My client states that due to non-payment of the bills by you my client is
suffering losses and going through anxious moments.
(9) My client through this notice once again requests you to clear all his bills (copy of the bills annexed to this
notice) which are overdue, totaling to Rs. _____ (Rupees_____) within 2 months from the date of receipt of
this notice, failing which my client will be constrained to institute suit against you for the recovery of the
aforesaid amount together with the interest at the rate of _____% and damages for breach of contract.
Yours sincerely,
Sd. Advocate
The information required by the Government under section 80 of the Code of Civil Procedure is as follows:
(a) Full name of Plaintiff (state complete name as in the agreement).

(b) Description and Place of residence (state relevant details and address)
(c) Cause of action (give details, i.e., the basis of the suit)
(d) Relief claimed by the proposed Plaintiff (what plaintiff wants the government body to comply with or pay).
Specimen No. 23
(Notice for Recovery of Price of Furniture Sold)
NOTICE
(By R.P A.D)
From: ______
Page 29 of 32
2.6 Specimens
Date: _______
To,
______________ Partnership Firm
______________
Sir,
Under the instructions of my client (give the name and address of client)____ and on being authorized by him in this
behalf I have to address you as under the contents whereof you may please note:
1) My client is a manufacturer and seller of furniture under the name and style M/S _____ which is a
proprietary concern at _____. My client states that my client has been selling the furniture to his customers
for the past _____ years.
2) My client states that the partner of your partnership firm Mr. _____ visited my clients’ shop on _____ date
and requested my client to visit your firm’s office as you required some furniture at your office.
3) My client states that, he visited your office on _____ date and on _____ date. Thereafter, my client
submitted the design and an estimate of the value of the furniture to you on _____ date. The same was
approved by you by letter dated _____. My client states that an advance of Rs. _____ i.e. 25% of the total
value of the furniture was given to my client on _____ date vide cheque no. _____ and it was agreed that
the balance amount was to be paid after the delivery of the furniture at your office.
4) My client states that my client accordingly has delivered and fixed the furniture at your office on _____ date
and submitted the credit bill no. _____ dated _____ for the balance amount of the price of the furniture.
5) My client states that you have approved and taken the delivery of the furniture and have also expressed
satisfaction about the quality and design of the furniture.
6) My client states that, however you have failed to pay the balance amount of Rs. _____ under the credit bill
no. _____ under one pretext or the other.
7) My client states that despite several reminders and visits made by my client and his staff at your office to
collect the balance amount of the price of the furniture, you have paid no heed to all the demands made by
client. My client states that, in gross violation of the agreed terms of payment, you have failed and
neglected to make the said payment to my client.
8) My client through this notice therefore, calls upon you to make the payment of Rs. _____ (balance price of
the furniture sold) together with interest at the rate of 18% p.a. within 7 days from the receipt of this notice
failing which my client will be constrained to initiate legal proceedings before appropriate court of law at
your cost and consequences thereof including the charges of Rs. _____ of this notice which you may
please note.
Yours sincerely,
Sd. Advocate
Specimen No. 24
(Notice Reply to Notice for Eviction))
Notice Reply
(BY R.P.A.D.)
From: ______
Date: _______
Page 30 of 32
2.6 Specimens
To,
______________
______________
Sir,
My client Mr. _____, has placed in my hands your notice dated _____ sent on behalf of your client Mr. _____ and
the same is received by my client on _____ date. I am instructed to reply on behalf of my client as follows; the
contents whereof you may please ask your client to note.
(1) At the very outset, my client states that the notice under reply is not legal, not valid and hence, not
admitted by my client. My client generally denies all the allegations made in the notice under reply except
those which are specifically admitted herein under.
(2) My client states that the contents in paras 1 and 2 of your notice under reply are substantially true and
correct and hence admitted by my client.
(3) My client states that the contents in para 3 of your notice that my client has committed serious breaches of
the tenancy agreement is not true and correct as alleged or otherwise. The contention that my client has
caused damage to the tenanted premises is not true and correct. My client states that the floor tiles of the
hall and kitchen were having cracks and some of them were broken when my client took the premises on
rent. Thus all allegations regarding the same are not true and hence denied by my client.
(4) My client states that the allegations in para 4 of your notice that my client is not adhering to the parking
norms of the society is not true and correct. My client states that my client was required to park his vehicle
at some other place as a guest who comes to flat no. 504 had parked his vehicle at the parking space
allotted to my client. My client states that my client had informed the watchman of society Mr. _____. On all
other occasions also when my client’s allotted parking space was encroached by someone that my client
had to park his vehicle at some other parking space. The allegation that your client has received complaint
about my client from Society Chairman is not true and correct. Thus all allegations in this regard are not
true and my client reiterates that he has not committed any breach of the tenancy agreement dated_____
(5) My client states that the contents in paras 5 and 6 in your notice under reply that your client is in need of
the tenanted premises for his bonafide use and occupation is not true and correct. My client states that
your client is staying in a bungalow admeasuring _____ square meters and consisting of hall, kitchen,
dining hall and threee bedrooms. In this lavish bungalow presently only three members are residing.
Therefore, even if your client’s son comes to reside, no inconvenience will be caused to your client.
(6) My client states that your client owns two more flats in the vicinity of the tenanted premises which are
bigger than the premises/flat rented to my client. My client states that only with a view to evict my client
under false and flimsy grounds, your client is building up all the baseless allegations against my client.
(7) My client states that the notice terminating the tenancy agreement dated _____ sent by you on behalf of
your client, therefore, is not legal and valid. Hence, the question of handing-over of the vacant possession
does not arise and my client is not liable to pay any compensation to your client as alleged or otherwise
which you may please ask your client to note. My client states that despite this if your client proceeds in the
court of law against my client, please inform him that he will be doing so entirely at his own risk as to the
cost and consequences of any such legal action.
Yours sincerely,
Sd. Advocate
Specimen No. 25
(Notice Reply Pertaining to Divorce Case)
Notice Reply
(By R.P.A.D.)
Page 31 of 32
2.6 Specimens
From: _______
Date: _______
To, ___________
______________
Sub: Notice & Petition dated _______ sent on behalf of Mr. __________
Sir,
My client Mrs. _________, has placed in my hand your notice dated ________ along with the draft of petition for
divorce by mutual consent, sent by you on behalf of your client Mr. ___________ and the same was received by my
client on _________(date).
On being authorised and instructed by my client, Mrs. ________, in this behalf I hereby reply as under; the contents
whereof you may please ask your client to note.
At the very outset, it may be noted that my client is ready and willing to dissolve the marital tie amicably and
peacefully provided her claim for maintenance as stated herein below is accepted by your client. However, my client
also desires to place on record certain facts as enumerated herein below:
(1) My client states that she has been constantly harassed for all these years, i.e., 25 years by your client, but,
she kept tolerating the same and suffered silently in the interest of her two children—son ________
(Name) and daughter ________ (Name).
(2) My client states that she was constantly subjected to mental cruelty by your client. Mr. ___________ never
allowed her to talk to any male member of the society, whether it was a plumber or any other neighbouring
acquaintance. He would constantly abuse my client and shout at her for no reason whatsoever.
(3) My client states that because of the whimsical behaviour of your client, she had to leave her flourishing
career half-way. From the date of marriage till the date of separation, your client has miserably failed and
neglected to look after my client’s health and has made her slog in the house endlessly and mercilessly.
(4) My client contends that your client always subjected her to severe criticism, taunting and humiliation. In
anything and everything that my client did, whether it be the upbringing of the children, cooking or any
other household matter, your client along with his sisters, particularly Mrs. _______ and Mrs. ________
would humiliate my client in the presence of relatives as well as in the presence of growing-up children.
Mrs. __________ has played pivotal role in instigating your client to act ruthlessly and insensitively towards
my client.
(5) The constant harassment at the hands of your client caused great mental anxiety and tension to my client.
Due to the same she went into a phase of depression. After a lot of efforts by her well wishers, friends and
children, my client with great difficulty has recovered from the bouts of depression. To overcome all this,
she was required to undergo medical treatment for a considerable period of time for which your client alone
is responsible.
(6) My client submits that due to the mental and physical cruelty committed by your client and all the
harassment done to my client and the children, my client at one point of time had even thought of lodging a
complaint with the police. However, as she wanted peace in her life, as well as in the life of her children,
who are both married and settled in their life, she decided against filing the said complaint. My client
reserves her right to state, in more details, the specific instances of mental and physical cruelty at the
appropriate time if and when required.
(7) Without prejudice to whatever is stated hereinabove and without prejudice to any of the rights of my client,
my client states that her claim for maintenance is as follows:
(a) The three FDs of Rs. 7 lakhs each belong to my client and the name of your client may please be
deleted from the same. (The flat at ________, where Mr. _________ is presently residing is in the
name of Mr. ____________, that is, your client. However, the said flat has been purchased out of the
funds contributed by both, i.e., my client along with your client. The loan documents amply prove the
Page 32 of 32
2.6 Specimens
said fact, as my client was a co-borrower for HDFC housing loan. So also the passbook entries prove
the same. Thus, Rs. ________ lakhs FD is nothing but her own earnings, which she had put in at the
time of purchase of the flat.)
(b) The flat at _________ where my client is presently staying, stands in the name of my client’s son by
name ______and your client. My client also has contributed heavily for the purchase of the said flat.
The said flat will be used and occupied mostly by her son, i.e., _________ (Name) when he returns to
India from Canada. Under these circumstances my client needs a small shelter of her own.
(c) Therefore, your client must provide for shelter to my client by purchasing 1 BHK flat in the vicinity of the
________ where she can spend the rest of her life joyfully and in peace or your client may transfer the
plot at _________ (which is jointly owned by him along with others) in favour of my client by a suitable
document absolutely and forever.
(d) Your client should arrange for Rs. 3 lakhs towards the medical expenses of my client.
(e) My client states that your client’s monthly income is Rs. 1,00,000/- and, therefore, he can easily afford
to comply with the terms mentioned herein above.
(8) My client states that only if your client accepts the above maintenance claim, she is ready and willing to
dissolve the marital tie by presenting a petition for divorce by mutual consent. My client reserves her right
to modify the draft petition sent by you.
(9) My client is looking forward to an amicable settlement, as she has neither the physical and mental strength
nor the requisite amount of financial resources to enter into long drawn process of separation through
litigation. Kindly inform your client about the same.
Yours sincerely,
Sd. Advocate
End of Document
3.1 Introduction
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER III PLEADINGS
CHAPTER III PLEADINGS
3.1 Introduction
In its generic sense pleadings are the statements made in writing to the court by the parties to the litigation stating
therein their contentions, allegations against the other. Pleadings are the foundation of any case before the court.
Therefore, the pleadings should be drafted very skillfully and carefully devoid of any vagueness or ambiguity.
It is the cardinal principle of law of evidence that, what is not pleaded cannot be proved. If there are certain
omissions or the pleadings are incomplete the party’s action can fail before the court, as the court cannot go
beyond pleadings.
Variance between pleading and proof is not permitted.1
Order VI, rule 1 of the Civil Procedure Code, 1908, defines pleadings as “Pleadings shall mean a plaint or a written
statement.” Plaint is a claim statement presented by the Plaintiff and the reply to the Plaint is termed as a Written
Statement.
Drafting of pleadings is no doubt an art. The language used should be simple, with the choice of precise words. The
strength of a case depends to a large extent on the frame of pleadings. Vague or absurd pleadings may prove fatal
to any legal action.
Thus, pleading of facts is essential. The facts narrated should be complete with necessary and relevant details.
1 Ram Prasad v State of Madhya Pradesh, AIR 1970 SC 1818 : 1970 SCR (2) 677.
End of Document
3.2 Objectives of Pleadings
Dr Medha Kolhatkar
3.2 Objectives of Pleadings

Procedural law is intended to facilitate and not to obstruct the course of substantive Justice. The object of pleadings
is to give each side an intimation of the case so that it may be met and to enable courts to determine the cause of
actual litigation.2 The main objectives of pleadings are as follows:
(i) To bring the parties to the real issues of dispute or conflict.

(ii) To know the case of the adversary and accordingly prepare the defence and lead evidence at the time of
hearing. Thus, the pleadings act as a fair notice to the other party.
(iii) It ensures that none of the parties is taken by surprise at the time of hearing.
(iv) The aim of pleading is also to inform the opposite party/defendant the contentions, allegations made
against them so as to give a fair chance to the opponent to put up his defence. For example, in case of
defamation, details of defamatory statement, when and where the statement was made and whether there
was any publication of the statement—all these facts will give a fair opportunity to the defendant to put up
his case.
(v) The basis of the claim and relief sought is disclosed in the pleadings.
(vi) Pleadings not only help the litigating parties to know each other’s case, but also aids the court to know the
actual issues to be discussed and decided and on whom the burden of proof rests, thus saving time,
reducing the bulk of evidence, and thereby diminishing the expense and the delay in respect of testimony.
(vii) To know the precise facts each party has to prove his or her contentions to succeed.
(ix) It prevents the issue from being enlarged.
2 Ganesh Trading Co v Moji Ram, AIR 1978 SC 484 : 1978 SCR (2) 614.
End of Document
3.3 Fundamental Rules
Dr Medha Kolhatkar

Order VI of Civil Procedure Code, 1908 lays down the general rules pertaining to pleadings in a court. The rules are
summarized as follows:
(1) Pleadings must state only the facts and not the law.
(2) Pleadings must state material facts and material particulars.
(3) Pleadings must state only those facts on which the party intends to rely and not the evidence by which they
are to be proved.
(4) The facts should be narrated concisely, precisely and with certainty.
Each of the above points is discussed below.
3.3.1 Plead Facts and Not Law
The plaint or the written statement should contain only the facts arranged in the chronological order in small
paragraphs on which the party relies and not the law or inference of law.
Examples—It is not sufficient to merely allege that the defendant is guilty of fraud but, the incident of fraud practiced
by the defendant on the plaintiff (i.e., when and how) should be stated. However, the effect of fraud on the contract
should not be stated. The plaintiff is not required to plead the law (i.e., section 17 of Indian Contract Act and its
consequence on the transaction) or the legal inferences.
3.3.2 Exceptions
To the general rule that every pleading must state facts and not the law or the legal inferences there are certain
exceptions:
(i) Customs and Usages of trade: Along with the pleading of facts, customs and usages of trade can be
pleaded, if the party desires to rely on it. Only those customs or usages of trade be pleaded, which are not
familiar ones. Customs which are well known and, relied by the courts and which have acquired the force
of law need not be pleaded.
(ii) Foreign laws and regulations: If a party intends to rely on any law, rule or regulation of a foreign country,
then same should be stated in the pleadings. The reason behind this exception is that Indian Courts do not
take any judicial notice of foreign laws.
(iii) Presumptions: As per O VI, rule 13, 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 case of bill of exchange, the plaintiff sues only on the bill
and not for the consideration as a substantive ground of claim.
All presumptions, of which courts are supposed to take judicial note of, need not be pleaded by the
party. For example, in case of a promissory note, it will be presumed to have been duly made and the
Page 2 of 3
party challenging it will have to rebut the said presumption. The party relying on promissory note is not
required to prove its genuineness.
(iv) Legal pleas: Legal pleas can be set up and pleaded; for example, the suit is barred by law of limitation, or
the plaintiff is not a class I heir, that the suit is barred by res judicata, plea of estoppel, etc. The legal pleas
raise objections to the point of law and are termed as issues of law.
3.3.3 Plead Material Facts
Another cardinal rule of pleading is that, every pleading must contain only a statement of the material facts on which
the party relies for his claim or defence (O VI rule 2 CPC). Material facts are those facts which the party is bound to
prove in order to succeed in his action. All the essential and relevant facts should be stated in the pleadings, as
they are the material facts. All those facts are material facts, without proving which the party cannot obtain any relief
from the court.
In Odger’s ‘Pleadings’ a ‘material fact’ has been defined as a fact, which is essential to the plaintiff’s cause of action
or to the defendant’s defence, which each must prove or fail. If there is a doubt as to whether the fact is material or
not then it is advisable to plead it rather than omitting it.
All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or
his defence are material facts.3
3.3.4 Plead Only the Facts, Not the Evidence
The next fundamental rule of pleading is that, plead only the facts and not the evidence by which the facts are to be
proved.
Order VI rule 2—
Pleading to state material facts and not evidence.—
(1) Every pleading shall contain, and 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) Material facts mean those facts upon which the plaintiff’s cause of action or the defendant’s defence
depends.
(3) Material facts must be pleaded with sufficient clarity and complete details.
(4) Material facts are the facts, which the plaintiff or the defendant must prove in order to succeed.
For instance in a suit for title by adverse possession, material facts would be—
(i) The plaintiff claims title by adverse possession.

(ii) The plaintiff must state how and when adverse possession commenced, what was the nature of his
possession and that he was in continuous physical possession of the property in question, peacefully,
uninterrupted, hostile to the title of the owner.
The necessary and material facts on which a party places reliance are called facta probanda. The evidence or the
facts, by means of which these facts are to be proved are called facta probantia. Thus, pleadings must state facta
probanda and not facta probantia.
Pleadings should be read as a whole.
Order VI rule 9—
Effect of document to be stated.—Wherever the contents of any document are material, it shall be sufficient in any pleading
to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words
Page 3 of 3
of the document or any part thereof are material.
Order VI rule 10—
Malice, knowledge, etc.—Wherever it is material to allege malice, fraudulent intention, knowledge or other conditions of the
mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the
same is to be inferred.
Order VI rule 11—
Notice.—Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege
such notice as a fact, unless the form or the precise terms of such notice, or the circumstances from which such notice is to
be inferred, are material.
3.3.5 Pleadings should be Concise and Precise
Pleadings should be stated in a concise form. Pleadings should be brief and to the point with accuracy.
While drafting pleadings, care has to be taken to ensure that all unnecessary facts and details are omitted and only
the material facts are pleaded with complete clarity devoid of any vagueness or uncertainty.
Thus, it is to be remembered that, the material facts should be stated in the pleadings in a concise form but with
precision and certainty. The pleadings shall, when necessary, be divided into paragraphs and numbered
consecutively. Dates, sums and numbers shall be expressed in figures as well as in words.4
3 Udhav Singh v Madhav Rao Scindia, AIR 1976 SC 744 : 1976 SCR (2) 246.
4 Order VI, rules 2(1), 2(2) and 2(3) CPC.
End of Document
3.4 Construction of Pleadings
Dr Medha Kolhatkar
3.4 Construction of Pleadings

Pleadings are generally loosely drafted. Therefore, the court should not scrutinize them strictly, otherwise it may
result in genuine claims getting defeated on trivial grounds. Pleadings should be read as a whole to gather its
meaning and effect.
Pleadings should not be construed with strictness. The pleadings have to be interpreted not with formalistic rigour
but with latitude or awareness of law, legal literacy of poor people.5 In construing a plea in any pleading, courts
must keep in mind that a plea is not an expression of art and science but an expression through words to place, fact
and law of one’s case for a relief.6
In construing a pleading or a petition in this country the court should not look merely to its form or pick out from it
isolated words or sentences; it must read the petition as a whole, gather the real intention of the party and reach at
the substance of the matter.7
In construing pleadings the court must look to the substance and not the form of pleading. Thus, in a case where
there were facts on the record to justify the inference of undue influence, it was held that the court had power to
administer relief notwithstanding inartistic pleadings. All that the court has to see is that the adversary of the party
pleading undue influence is not taken by surprise.8
5 Manjushri Raha v BL Gupta, AIR 1977 SC 1158 (1161) : 1977 SCR (2) 944.
6 Syed Dastagir v TR Gopalakrishna Setty, AIR 1999 SC 3029.
7 Katikara Chintamani Dora v Guatredde Annamanaidu, AIR 1974 SC 1069 : 1974 SCR (2) 655.
8 Karam Chand v Mian Mir Ahmed, AIR 1938 PC 121 : (1938) 40 Bom LR 1053.
End of Document
3.5 Striking of Pleadings
Dr Medha Kolhatkar

Pleadings which may be unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice,
embarrass or delay the fair trial of the suit or which is otherwise, an abuse of the process of court can be struck,
dismissed or amended by the court at any stage of the proceedings. The general rule that, only material facts
should be pleaded, is followed, but to this rule there are certain exceptions. They are as follows:
(I) Condition Precedent
Order VI rule 6—
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.
The performance of condition precedent need not be contended. However, the non-performance of such conditions,
if failed, should be pleaded.
Example—(i) It is a mandatory requirement to serve a notice under section 80 of Code of Civil Procedure, 1908
before instituting a suit against the Government. This is a condition precedent, which must be pleaded, as section
80 requires that the plaint must contain a statement that such a notice has been delivered.
(ii) In a suit for specific performance, the plaintiff must aver in his plaint that he was ready and willing to perform his
part of the contract and if the said averment is traversed, he must prove the said averment.9
(II) Presumptions
All such facts which a court “shall presume” need not be pleaded. All such facts which the court “may presume”
should be pleaded within the meaning of Indian Evidence Act.
(III) Matters of Inducement
The pleadings begin with certain introductory facts, such as who the plaintiff and defendant are, the nature of their
business, profession and other supporting facts which lead to the introduction to the nature of dispute/differences
between the parties. Though these are not material facts, the same can be pleaded and they are treated as matters
of inducement.
9 G Veeraya v N Subbiah Choudhury, AIR 1957 SC 540 : 1957 SCR 488.

Page 2 of 2
End of Document
3.6 Alternative and Inconsistent Pleadings
Dr Medha Kolhatkar
3.6 Alternative and Inconsistent Pleadings

Order VI rule 7—
No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact
inconsistent with the previous pleadings of the party pleading the same.
Pleadings can be in the alternative. Alternative means, a choice between two things. A party to litigation may
include in the pleadings two different sets of facts and may pray for alternative relief. Thus, a party as a matter of
law may claim ownership and easementary rights in the alternative.10 Thus, the Code of Civil Procedure, 1908 does
not prevent a party from making two or more inconsistent sets of allegations. However, the inconsistent pleas raised
ought to be tenable at law.
Example.—A plaintiff cannot pray for a declaration, that a particular contract is void, and in the alternative pray for
the specific performance of the same contract since it is not permissible under section 37 of the Specific Relief Act,
1877.11
10 C Mohammed v Ananthachari, AIR 1988 Ker 298.

11 Prem Raj v DLF Housing & Construction (Pvt) Ltd, AIR 1968 SC 1355 : (1968) 3 SCR 648.
End of Document
3.7 Signature and Verification of Pleadings
Dr Medha Kolhatkar

Order VI rule 14—
Every pleading shall be signed by the party and his pleader (if any):
Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may
be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf.
In cases where the suits are instituted or defended on behalf of Public Corporation, public interest should not be permitted
to be defeated on a mere technicality. Procedural defects, which do not go to the root of the matter, should not be permitted
to defeat a just cause.
Example—Dismissal of a suit filed by bank, for recovery of loan on the ground of the plaint being not signed and
verified by competent person is not proper.12
On reading O VI, rule 14 and O XXIX, rule 1 together it appears that even in the absence of any formal letter of
authority or power of attorney having been executed, person referred to in O XXIX, rule 1 by virtue of the office
which he holds may sign and verify pleadings on behalf of corporation.13
Every pleading has to be verified at the foot thereof, by the party (or by one of the parties) or by some other person
acquainted with the facts of the case.
The purpose of verification of pleadings is to fasten on the party verifying, the responsibility for the statements that it
contains. Verification is not a mere formality. However, if a party fails to verify or the verification is defective, the
same can be remedied at a later stage, and is a mere irregularity within the meaning of section 99 of Civil
Procedure Code.
Any verification, which is false, would make the party verifying liable to prosecution for giving or fabricating false
evidence (sections 191 and 193 of IPC).
A defect in the matter of signing and verification of pleadings is merely an irregularity and can be corrected at a later
stage of the suit with the leave of the court and a suit cannot be dismissed nor an order be passed against a party
on the ground of defect or irregularity in signing or verification of plaint or written statement.14
12 United Bank of India v Naresh Kumar, AIR 1997 SC 3.

Page 2 of 2
13 United Bank of India v Naresh Kumar, AIR 1997 SC 3.

14 Bhikaji v Brijlal, AIR 1955 SC 610 : 1955 SCR (2) 428.
End of Document
3.8 Amendment of Pleadings
Dr Medha Kolhatkar

Object of Amendment—
All material facts must come before the court in order to decide the rival claims of the parties, hence, amendment of
pleadings is permitted in all such cases.
The courts should allow all amendments, that may be necessary for determining the real question in controversy
between the parties, provided it does not cause injustice or prejudice to the other side. The rule of amendment is
essentially a rule of justice and good conscience.
The power of amendment should be exercised in larger interest of doing full and complete justice to the parties
before the court. The court always gives leave to amend the pleadings of a party, unless it is satisfied that the party
applying was acting mala fide. The amendment of pleadings should liberally be allowed since procedural obstacles
ought not to impede the dispensation of justice. The court should also take notice of subsequent events in order to
shorten the litigation, to preserve and safeguard the rights of both the parties and to subserve the ends of justice.15
In Vidyabai v Padmalata16 the Apex Court held that the primary duty of court is to decide as to whether the
amendment sought is necessary to decide the real dispute between the parties. The amendment should be allowed
only when such condition is fulfilled.
The provisions regarding amendment of pleadings are stated under O VI rule 17 of Civil Procedure Code.
Order VI rule 17—Amendment of pleadings—
The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on
such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining
the real questions in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the
conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial.
A party cannot claim amendment in the pleadings as a matter of right, but it is always at the discretion of the court.
The Supreme Court has most aptly held, Rules of procedure are intended to be a handmaid to the administration of
justice. A party cannot be refused relief merely just because of some mistake, negligence, inadvertence or even
infraction of the rules of procedure.17
When Amendment not allowed:
Amendment will not be allowed in the following cases:

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(1) Amendments which result in introducing a new case in a suit against Government may not be allowed
since that may require a fresh notice under section 80 of the Code of Civil Procedure, 1908.18
(2) It is not necessary for deciding the real question in controversy.
(3) It should take away from the defendant a legal right which has accrued to him by lapse of time.
(4) Amendment ought not to be allowed when the same would prejudice the rights of the other parties as
existing at the date of such amendment.
(5) It would introduce a totally different, new and inconsistent case or if its effect would be to substitute one
distinct cause of action from another or change the character of the suit.
(6) Where an amendment application is not made in good faith.
(7) It may wriggle out an admission made by the party.
(8) It causes serious injustice or irreparable loss to the other side.
(9) Amendment of such a nature as to displace the other party, cannot be allowed.
(10) Amendment would not be allowed after the trial has commenced, if the party fails to show cause as to why
even after exercise of due diligence it could not have moved amendment before the trial commenced.
15 Rajesh Kumar Agarwal v KK Modi, AIR 2006 SC 1647 : (2006) 4 SCC 385.
16 Vidyabai v Padmalata, AIR 2009 SC 1433.
17 Jai Jai Rammanohar Lal v National Building Material Supply, Gurgaon, 1969 AIR 1267 : 1970 SCR (1) 22.
18 Bishandayal and Sons v State of Orissa, AIR 2001 SC 544.
End of Document
3.9 Consequences of Failure to Amend
Dr Medha Kolhatkar
3.9 Consequences of Failure to Amend

Order VI rule 18-Failure to amend after Order.—
If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose
by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to
amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time
is extended by the court.
Once the party to the suit has been granted the leave to amend the pleadings, it is expected that the said
amendment is carried out as per the directions of the court. If the order allowing amendment states the time within
which the amendment should be carried out, then it should be carried out within the said time or otherwise within 14
days. If the party fails to do so, it may lose its right to carry out amendment. Amendment of pleadings is carried out
in red ink, so that all the persons who refer to them know that the said additions/ changes are made by way of
amendment.
End of Document
3.10 Conclusion
Dr Medha Kolhatkar
3.10 Conclusion
Pleadings are the backbone of any legal action. Therefore, the same should be drafted with utmost care and clarity.
The fundamental rule of pleadings is that a party can only succeed on the basis of what he has pleaded and
proved. The draftsman should have thorough knowledge of law relating to pleadings and must draft the pleadings
within the framework of the applicable rules and legal provisions. If the pleadings are incomplete, vague or lack the
necessary and material details, then the party to the suit may fail. It is pertinent to note that pleadings aid and guide
the courts in deciding all the controversies between the parties. Hence, the pleadings should be precise, concise
and complete.
End of Document
4.1 Introduction
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER IV PLAINT
CHAPTER IV PLAINT
4.1 Introduction
Plaint is a statement of averments made by the plaintiff in support of his claim and reliefs sought from the court.
“Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
In every plaint, facts shall be proved by affidavit”. (Section 26)
The requirement of affidavit in support of the plaint is provided by the Code of Civil Procedure Amendment Act of
1999. The affidavit in support of the plaint should stick to the averment in the plaint and should be such that the suit
can be decreed on the basis of the affidavit, unless objected by the opposite party.
End of Document
4.2 Particulars of Plaint
Dr Medha Kolhatkar
CHAPTER IV PLAINT

Order VII rule 1 enumerates the particulars, which the plaint shall contain.
Particulars to be contained in plaint.—A plaint shall contain the following particulars:—
(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 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 or the suit for the purpose of jurisdiction and of court-fees, so
far as the case admits.
Each of the particulars are discussed below.
4.2.1 Title of the Plaint
The name of the court is to be mentioned at the title of the plaint. The name of the court indicates the court in which
the plaintiff wants to present the plaint and believes that the court has jurisdiction. The name of the court is stated in
the following manner:
IN THE COURT OF CIVIL JUDGE AT__________ (state the name of the city/taluka/village) AT ___________
(state the name of the district).
IN THE COURT OF DISTRICT JUDGE AT ___________
IN THE COURT OF SMALL CAUSES AT _________
4.2.2 Description of the Plaintiff
The next requirement of a plaint is giving the name, description and place of residence of the plaintiff. The purpose
of the provision is to inform the court and the defendant about the relevant details of the plaintiff.
4.2.3 Description of Defendant

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The details of the defendant, like that of the plaintiff, should be given. The address should be complete so that
summons can be served on the defendant. In a suit with more than one plaintiff or defendant, the plaintiff and
defendant is referred to as Plaintiff No. 1, Plaintiff No. 2, Defendant No. 1, Defendant No. 2, etc.
If the plaint is presented on behalf of or against any of the following categories then the plaint must give the
description as follows:
Company: ABC Pvt. Ltd. Co.
(Registered under the companies Act, 1956)
having its registered office at _________
through its Director Mr. ______________
Age ______ Occupation ____________
R/at _______________
Partnership Firm: M/S PQR, a partnership firm
(Registered under the Indian Partnership Act) and
having its registered office at ____________
through its Partner Mr.______________
Age _______ Occupation ________ R/at ________
Co-operative Society: M/S LMN Ltd. a co-operative society
(Registered under the Maharashtra Co-operative Societies Act)
having its office at __________________
through its Chairman Mr._________
Age _______ Occupation _____________ R/at _________
Statutory Corporation:- The LIC of India Established and constituted under the Life Insurance Act, having its
registered office at _____________ and branch office at_____________through its authorised officer
Mrs._________ Age_____ Occupation ___________ R/at_____________
Minor: Miss XYZ,
daughter of _________ a minor,
through her mother and natural guardian/next friend
Mrs. __________ Age _____ Occupation _________ R/at ___________
Government of India:—The Union of India, through Secretary, Ministry of Health/Education/Defence etc., New
Delhi. Office at_____________
State Government:—State of _____________ (name of the State) through the secretary __________
4.2.3.1 Parties to the Suit
While drafting a plaint the draftsman should carefully scrutinize all the facts and then should consider who should
Page 3 of 7
be joined or impleaded as plaintiff/s and defendant/s.
4.2.3.2 Necessary and Proper Party
The parties necessary for constitution of a suit are necessary parties. Their nonjoinder affects the merits of the case
and the jurisdiction of the court and without them, no effective decree can be passed in the suit.1
A necessary party is one in whose absence the suit cannot legally proceed.
Example—In a suit for partition all co-sharers are necessary parties. In a suit for partnership accounts, all partners
are necessary parties. Sometimes the presence of a party is necessary in order to adjudicate the dispute before the
court. However, no relief maybe claimed against such a party. Such a party is termed as proper party to the suit.
4.2.3.3 Joinder of Plaintiffs
The Code of Civil Procedure permits joinder of plaintiffs and joinder of defendants in a suit.
Order I rule 1 provides the conditions under which several plaintiffs may join in one suit.
Order I rule 1—
Who may be joined as plaintiffs
R. 1. All persons may be joined in one suit as plaintiffs where—
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to
exist in such persons, whether jointly, severally or in the alternative; and
(b) if such persons brought separate suits, any common question of law or fact would arise.
4.2.3.4 Misjoinder of Plaintiffs
In a case where the aforesaid conditions of O I rule 1 do not exist and two or more persons are joined as plaintiffs in
one suit, the result would be misjoinder of plaintiffs.
4.2.3.5 Joinder of Defendants
Order I rule 3—
Who may be joined as defendants
R. 3. All persons may be joined in one suit as defendants where—
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to
exist against such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact would arise.
4.2.3.6 Misjoinder of Defendants
In a case where the aforesaid two conditions do not exist and if two or more persons are joined as defendants in
one suit, the result would be a misjoinder of defendants.
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4.2.3.7 Consequences of Misjoinder and Nonjoinder
The objection as to nonjoinder and misjoinder of the parties shall have to be taken at the earliest possible
opportunity. Though O I rule 9 of the Code of Civil Procedure mandates that no suit shall be defeated by reason of
misjoinder or nonjoinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that rule
shall apply to nonjoinder of a necessary party.2
4.2.4 Minor or Person of Unsound Mind
If the party to the proceedings is a minor or a person of unsound mind then a statement to that effect has to be
made and the plaint is to be filed through legal guardian/next friend.
4.2.5 Details of Cause of Action
The expression “cause of action” has not been defined in the Code of Civil Procedure, 1908. Lord Brett has very
aptly defined the expression “cause of action” in the case of Cooke v Gill:3
Cause of action means every fact which is material to be proved to entitle the plaintiff to succeed which would be necessary
for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.
“Cause of action” means every fact, which is necessary to establish in order to support a right or to obtain a
judgment.4
The plaint should disclose the cause of action and if cause of action is not disclosed then it is liable to be rejected.5
4.2.6 Jurisdiction of Court
Jurisdiction means the power or authority of a court of law to hear and determine a cause or a matter. It is the
power to entertain, deal with and decide a suit, an action, a petition or other proceedings.6 It is necessary to state in
the plaint that the court has pecuniary and territorial jurisdiction to entertain, try and decide the suit.
Jurisdiction is the power to hear and determine a cause and adjudicate, or exercise any judicial function in relation
to it. If the court has no jurisdiction, consent of the parties or their inaction cannot confer that jurisdiction. So also
jurisdiction cannot be ousted by consent.
Jurisdiction is broadly classified into three categories.
i. Jurisdiction over the subject matter

ii. Territorial jurisdiction
iii. Pecuniary jurisdiction
Section 9 of the Civil Procedure Code bestows jurisdiction on the civil courts to try all suits of a civil nature except
those which are expressly or impliedly barred by any other law.
If a court has no jurisdiction to try the case, it goes to the very root of jurisdiction and it is a case of inherent lack of
jurisdiction. A bar to file a civil suit may be express or implied. An express bar is where a statute itself contains a
provision that the jurisdiction of the civil court is barred, for example—the bar contained in section 293 of the
Income-tax Act, 1961. An implied bar may arise when a statute provides a special remedy to an aggrieved party like
a right of appeal, as contained in the Punjab Municipal Act, 1911. Section 86 of the said Act restrains the party from
challenging assessment and levy of tax in any manner other than as provided under the Act. A provision like this is
the implied bar envisaged in section 9 of the Civil Procedure Code against filing a civil suit.7
As per Explanation I to section 9, “A suit in which the right to property or to an office is contested is a suit of civil
nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or
ceremonies.”
Sections 15 to 20 of the Code of Civil Procedure lay down the rules as to jurisdiction of courts.
Page 5 of 7
a. “Court in which suits to be instituted—Every suit shall be instituted in the Court of the lowest grade
competent to try it.” (Section 15)
The object of the section is that courts of higher grades shall not be overcrowded with suits.
b. Suits pertaining to immovable property:
Suits pertaining to immovable property such as partition, foreclosure, sale, redemption or any other
right or interest, etc. shall be instituted in the court within whose jurisdiction the immovable property is
situated. (Section 16)
If the immovable property in respect of which any relief is claimed is situated within the jurisdiction of
different courts, the suit may be instituted in any court within the local limits of whose jurisdiction any
portion of the immovable property is situated.
c. Section 18 of the code provides for the “place of institution of suit where local limits of jurisdiction
of courts are uncertain—
(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more
Courts any immovable property is situate, any one of those courts, may, if satisfied that there is ground
for the alleged uncertainty, record a statement to that effect and there upon proceed to entertain and
dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if
the property were situate within the local limits of its jurisdiction:
Provided that the suit is one with respect to which the court is competent as regards the nature and
the value of the suit to exercise jurisdiction.
(2) Where a statement has not been recorded under sub-section (1), and objection is taken before an
Appellate or Revisional Court that a decree or order in a suit relating to such property was made by a
Court not having jurisdiction where the property is situate, the Appellate or Revisional Court shall not
allow the objection unless in its opinion there was, at the time of the institution of the suit, no
reasonable ground for uncertainty as to the Court having jurisdiction with respect thereto and there has
been a consequent failure of justice.”
d. Movable Property (Section 19)
Section 19 of the Code states the provisions regarding suits pertaining to movable property. Suits
pertaining to movable property can be instituted either at the place where the wrong is committed or
where the defendant resides, carries on business or personally works for gain.
Where the wrong consists of series of acts then the suit can be filed at any place where the acts have
been committed. Even a suit for tort (to a person) can be instituted by the plaintiff either where such
wrong is committed or where the defendant resides, carries on business or personally works for gain.
e. Other Suits (Section 20)
All the cases, which are not covered by abovementioned provisions, are dealt with by section 20. All
such suits at the option of the plaintiff can be filed in any of the courts as follows:
(a) where the cause of action, wholly or partly arises, or

(b) where the defendant resides or carries on business or personally works for gain, or
(c) where there are two or more defendants, any of them resides or carries on business or personally
works for gain, provided in such case (i) either the leave of the court is obtained, or (ii) the defendants
Page 6 of 7
who do not reside or carry on business or personally work for gain at that place acquiesce in such
institution.
4.2.7 Relief Claimed
Every plaint shall state the relief, which the plaintiff seeks from the court. Plaintiff cannot ask for those reliefs
pertaining to which there are no pleadings in the plaint. The plaint must specifically state the relief claimed either
simply or in the alternative (O VII rule 7).
“A party cannot be granted a relief which is not claimed, if the circumstances of the case are such that the granting of such
relief would result in serious prejudice to the interested party and deprive him of the valuable right under the statute.”8
“Where the relief prayed for in the suit is a larger relief and if no case is made out for granting the same but the facts, as
established, justify granting of a smaller relief, Order VII Rule 7 permits granting of such a relief to the parties. However,
under the said provisions a relief larger than the one claimed by the plaintiff in the suit cannot be granted.”9
Relief can be sought in the alternative. While drafting the prayer clause, care should be taken to pray for the whole
claim to which the plaintiff is entitled to seek in respect of cause of action. So also if the plaintiff is entitled to more
than one relief from the cause of action then he must pray for all, because subsequently he cannot seek the
remaining reliefs by filing another suit.
4.2.8 Set off or Relinquishment
Where a plaintiff has allowed a set off or relinquished a portion of his claim, the amount so allowed or relinquished
must be stated in the plaint.
4.2.9 Valuation of Suit
Every plaint shall contain a statement of the value of the subject matter of the suit for the purposes of pecuniary
jurisdiction and of court-fees, so far as the case admits.
4.2.10 Limitation Period
Every suit be filed within the prescribed period of limitation. A statement to that effect should be made in every
plaint. Plaint is liable to be rejected if it is barred by law limitation.
If the Plaintiff is seeking any exemption under the law of limitation then the Plaint shall show the ground upon which
exemption is claimed.
Order VII rule 6—
Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the
ground upon which exemption from such law is claimed:
Provided that the court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the
plaint, if such ground is not inconsistent with the grounds set out in the plaint.
1 Sahasaheb v Sadashiv, (1919) ILR 43 Bom 575.

2 Chief Conservator of Forests v Collector, AIR 2003 SC 1805.
3 Cooke v Gill, (1873) LR 8 CP 107.
Page 7 of 7
4 Sadanandan Bhadran v Madhavan Sunil Kumar, AIR 1998 SC 3043 : (1998) 6 SCC 514 (518).
5 Order VII rule 11 CPC.
6 Aiyar’s Advanced Law Lexicon (2005), Vol II, pp 2527.
7 NDMC v Satish Chand, (2003) 10 SCC 38.
8 Om Prakash v Ram Kumar, AIR 1991 SC 409 : JT 1991 (5) SC 51 : (1991) 1 SCC 441 : 1991 (1) UJ 89 SC.
9 Rajendra Tiwari v Basudeo Prasad, AIR 2002 SC 136.
End of Document
4.3 Rejection of Plaint
Dr Medha Kolhatkar
CHAPTER IV PLAINT

Order VII rule 11—
R. 11. The plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, 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 provisions of rule 9.
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall
not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of
an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the
time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
Rejection of plaint under O VII rule 11 of the Code of Civil Procedure is a drastic power conferred in the court to
terminate a civil action at the threshold. The conditions precedent to the exercise of the power under O VII rule 11
therefore are stringent and have been
consistently held to be so by the court. It is the averments in the plaint that have to be read as a whole to find out
whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power
under O VII rule 11, the stand of the defendant in the written statement or in the application for rejection of the plaint
is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading
thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will
have to be adjudicated in the course of the trial.
Averments in plaint should be accepted as correct for the purposes of consideration of application under O VII rule
11. Therefore, order rejecting plaints on the ground of applicability of the Benami Transaction (Property) Act, 1988
and on the ground of bar of limitation, is liable to be set aside.10
Defect of misjoinder of parties and causes of action cannot be said to be a ground for rejection of plaint.11
10 PV Guru Raj Reddy v P Veeradha Reddy, AIR 2015 SC 2485.

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11 Premlala Nahata v Chandi Prasad Sikaria, AIR 2007 SC 1247.
End of Document
4.4 Signature and Verification of Plaint
Dr Medha Kolhatkar
CHAPTER IV PLAINT
4.4 Signature and Verification of Plaint

The plaint has to be duly signed by the plaintiff or by any other person duly authorised by him in this behalf. The
pleader of the plaintiff should also sign the plaint. The plaint should also be verified by the plaintiff or by the person
signing the plaint on behalf of the plaintiff.
End of Document
4.5 Annexures to be Filed Alongwith the Plaint
Dr Medha Kolhatkar
CHAPTER IV PLAINT
4.5 Annexures to be Filed Alongwith the Plaint
(a) Every plaint should be filed alongwith requisite number of copies of the plaint to be given to the defendants.
(b) Vakalatnama or Vakilpatra should be filed alongwith the plaint.
(c) Address Purshis, i.e., giving the detailed and complete address of the parties to the litigation should be
submitted.
(d) List of documents to be filed by the plaintiff alongwith the plaint.
(e) The documents as per the list should be submitted.
(f) The requisite amount of court fee stamp should be annexed to the plaint.
(g) All interim applications alongwith copies for the defendant/s with court fee stamp paid thereon should be
submitted.
(h) Affidavit in support of plaint and interim applications should accompany the plaint.
End of Document
CHAPTER V DRAFTING OF CIVIL SUITS
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER V DRAFTING OF CIVIL SUITS

SUITS UNDER LAW OF TORTS
End of Document
5.1 Suit for Defamation
Dr Medha Kolhatkar

5.1.1 Introduction
It has been very aptly said that the right to reputation is considered to be an inherent personal right of every person.
A man’s reputation is his property and perhaps more valuable than any other property. Every person has therefore
a right to maintain and preserve his reputation unassailed.
Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of
society generally which tends to make them shun or avoid that person.1
Whenever the right to reputation of a person is violated then for the legal injury so caused, he may institute civil
proceedings for damages against the wrongdoer.
Defamation is the act of making untrue statements about another which damages his/her reputation. Defamation is
the act of saying false things in order to make people have a bad opinion of someone.
To derive defamatory meaning from words, the test applicable will be whether such words would tend to lower the
plaintiff in the estimation of right thinking members of the society generally.2 For the application of this test, it is
necessary to read the statement as a whole and the words used in it are to be given their natural or ordinary
meaning, which may be ascribed to them by ordinary men.3 The meaning of words in an action for defamation must
be a matter of impression that an ordinary man gets on the first reading, not on a later analysis.
5.1.2 Distinction between Libel and Slander
The defamation of a person can be committed in a variety of ways. It may be done in writing or in some permanent
form or it may be done by spoken words or gestures. When defamation is done in writing or in some permanent
form, it is called libel. Slander means defamation done by spoken words or gestures. Thus, it is said that libel is
addressed to the eye, whilst slander is addressed to the ear. It is pertinent to note that libel is not only a civil wrong
but is also a crime. Slander on the other hand is always a civil wrong, except where the words are blasphemous,
obscene, seditious or amounts to contempt of court.
5.1.3 Essentials of Defamation
To establish the civil wrong of defamation the plaintiff must plead and prove the following essentials of defamation.
5.1.3.1 The statement must be addressed to the plaintiff.

5.1.3.2 The statement must be false and defamatory.
5.1.3.3 The statement must be “Published”.
5.1.3.4 The extent of legal injury so caused.
5.1.3.5 Claim for damages.
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Each of the essentials are discussed below.
5.1.3.1 The statement must be addressed to the plaintiff
The plaintiff ought to prove that the statement which according to him is defamatory has been addressed to him by
the defendant. It is immaterial whether the defendant intended to defame somebody else and not the plaintiff. “The
liability for libel does not depend on the intention of the defamer but on the fact of defamation.”4 If the plaintiff can
prove that those who read the libel thought that it referred to the plaintiff then the plaintiff will succeed inspite of the
fact that the defendant did not intend to defame the plaintiff.
5.1.3.2 The statement must be false and defamatory
The statement must not only be false but it should also be defamatory. The plaintiff must show that the statement is
a defamatory one, as it tends to injure the reputation of the plaintiff. The statement should be of such a nature that it
tends to lower a person in the estimation of the right thinking members of the society generally.
In SNM Abidi v Profulla Kumar Mohanta,5 a news article published in the Illustrated Weekly alleged the misuse of
man and muscle power by former Chief Minister Profulla Kumar Mohanta. The court found that the article was false,
defamatory and harmed the plaintiff’s reputation and awarded damages amounting to Rs. 5,00,000/-
In the case of DP Chaudhary v Manju Lata,6 local daily published a statement that Manju Lata, a girl of 17 years,
and a student of B.A., had eloped with a boy named Kamlesh on the pretext of attending night classes in her
college. The court found the statement false and defamatory and held the defendants liable for damages amounting
to Rs. 10,000.
5.1.3.3 The statement must be published
There has to be publication of the defamatory statement. If the defamatory statement has not been published then
the defendant will not be liable for defamation.
“Publication” used here is not in the popular sense of giving publicity. To publish a defamatory statement or matter
is to make it known to any other person than the one defamed. Even communication to a single person is sufficient.
Matter contained in telegram and postcards amounts to publication. In such a case, law presumes that others will
probably read such documents, openly transmitted and thus amounts to publication.
5.1.3.4 The extent of legal injury so caused
The plaintiff in a suit for defamation must lead evidence before the court to show to the court the extent of legal
injury that has been caused to him due to the defamatory remarks. The plaintiff therefore must plead how his life
has changed because of the publication of the defamatory matter. The plaintiff may suffer not only loss of
reputation, but also loss of other opportunities such as business loss, etc.
5.1.3.5 Claim for damages
Last but not the least, the plaintiff must justify his claim for damages before the court for the tort of defamation
through his pleadings. There is no straight jacket formula to ascertain and quantify damages in such cases. The
extent of damages will be determined on the basis of the harm which the defamatory statement has done to the
plaintiff. The quantum of damages to be awarded would depend on the language, form and other circumstances for
the publication, and also on the status and social position of the parties. The amount of general damages may be
increased by aggravating circumstances or reduced by mitigating circumstances. Instances of aggravating
circumstances include malice, gross negligence, wantonly harmful kind of imputation calculated to outrage feelings
and cause mental pain to the plaintiff, repetition of libel etc. Instance of mitigating circumstances include an apology
by the defendant before or after the action, absence of malice, inadvertent publication, innocent repetition of libel
etc. The plaintiff must in his pleading, clearly aver the special damage before he can give evidence of it. He should
plead and prove that the defendant’s conduct was the legal cause of the damage complained of.
5.1.4 Defamation of a Class of Persons
If the defamatory statement is addressed to a group or a class of persons, then no member of that group or class
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can sue for defamation. However, if any member can prove that the defamatory statement is referred to him only
then he can sue for defamation. In the case of Dhirendra Nath Sen v Rajat Kanti Bhadra,7 it has been held that
when editorial in a newspaper is defamatory of spiritual head of a community, an individual of that community does
not have a right of action. Similarly “if a man wrote that all lawyers were thieves, no particular lawyer could sue him
unless there was something to point to the particular individual”.8
5.1.5 Defamation of the Deceased Person
Defamation of the deceased person is not a tort. Right to reputation is a personal attribute and thus, the right is
enjoyed only during a person’s lifetime. However, if the imputations in respect of the deceased are such that they
hurt the feelings of his near relatives and family, and if their imputations would have hurt the reputation of the
deceased had he been alive, the defamer can be prosecuted under the criminal law.9
5.1.6 Remedies
The aggrieved party may sue for damages and for injunction to prevent a threatened publication of defamatory
statements. The remedy of criminal prosecution is also available under the provisions of Indian Penal Code.
5.1.7 Limitation
The period of limitation is one year from the date of publication of the libel (Article 75, Indian Limitation Act, 1963).
Therefore, the date of publication should be clearly specified in the pleadings.
5.1.8 Defences
The following are the defences in an action for defamation.
(i) Justification or Truth:—The defendant can set up the plea of “truth” in a suit for defamation. Truth
published with good motives and for ends justifiable is the first defence. Here, the charges laid must be
true in fact and in substances. Truth is, therefore, a complete answer to civil action for defamation except in
criminal cases where different considerations prevail.10
If the defendant is not able to prove the truth of the facts, the defence cannot be availed.
(ii) Fair Comment:—Making of a fair comment on matters of public interest is a defence to an action for
defamation. The expression Fair and Bona fide comment means that:
(a) it must be a comment

(b) the comment must be fair and bona fide
(c) the matter of comment must be one of public interest.
Matters of Government administration, Public performances by artistes, public entertainment, books,

Conduct of Public men like ministers, officers of state etc., would fall in the category of matters of public
interest. For example, the review of a book or a movie must be a fair and bona fide one. Whether the
comment is fair or not depends upon whether the defendant honestly held that particular opinion.
(iii) Privilege:—On certain occasions the statement made by a person though defamatory in nature is not
actionable. Law treats such occasions as privileged. Privilege is of two kinds—Absolute Privilege and
Qualified Privilege.
5.1.9 Absolute Privilege
In special cases total protection is provided by law and the person making the defamatory statement is protected
under the defence of “Absolute Privilege”. Absolute Privilege is recognised in respect of “Parliament Proceedings”,
“Judicial Proceedings” and “State Communications”. The defence of absolute privilege is based on the principle that
in certain cases the public interest demands that an individual’s right to reputation should give way to the freedom
Page 4 of 7
of speech.
5.1.10 Qualified Privilege
The defence of qualified privilege is applicable when the defendant is exempted from the liability of making the
defamatory statement, but the exemption is granted if the statement was made without malice. In other words the
presence of malice negatives the defence.
Qualified privilege is enjoyed by the person when statements are made in discharge of a duty or protection of an
interest. For example, Mr. A informing Mr. B about the character of the servant who was working with Mr. A and
now Mr. B wants to employ the servant. Here even if the comment of Mr. A is defamatory he enjoys qualified
privilege as Mr. B is interested in the information given by Mr. A.
Reports of parliamentary proceedings, judicial and other public proceedings are also a subject of qualified privilege.
5.1.11 Specimen
Specimen No. I
IN THE COURT OF CIVIL JUDGE SR. DIV, Place
AT __________
C.S. No.__________/ 20___
Suit for Compensation for Defamation
The Plaintiff above named states most respectfully as follows:—
(1) The plaintiff states that the plaintiff is working as CEO of __________ Group of Companies for the last 15
years. Under the able leadership of this plaintiff, the company has made tremendous growth and progress.
The present turnover of the Company is______ for the financial year ______.
(2) That the plaintiff submits that the defendant No. 1 is the editor and the defendant No. 2 is the printer and
publisher of the Daily Newspaper by name ‘________’ which is a very renowned and reputed newspaper in
________ city having wide circulation.
(3) The plaintiff submits that during the period from _________ to _____ there was a minor skirmish between
the management and the workers of his company. The workers had put forth certain demands before the
management and had threatened to go on strike if their demands were not met.
(4) The plaintiff submits that, however through the process of discussions and negotiations the matter between
the management and the workers was sorted out amicably on ______ date and in pursuant to the said
settlement, an agreement was executed between the management and the workers committee on the
same day.
(5) The plaintiff submits that unfortunately during the process of settlement between the management and the
workers, one of the workers Mr. __________ a senior worker and a member of the workers’ committee
died in a road accident on ________ date.
(6) That the plaintiff submits that, in the ________ newspaper dated ________ the defendants falsely and
maliciously printed and published on page 2 that “Mr. _________ the CEO of _________ group of
companies has made progress only by fraudulent and illegal means. Anyone who opposes him is crushed
to death. Remember the death of _________ in a road accident? Was it really a road accident?” The
plaintiff has annexed herewith the said newspaper containing the defamatory statement. The plaintiff
submits that the said news be read as part and parcel of this plaint.
(7) The plaintiff submits that the said news is false, fabricated and highly defamatory. The aforesaid
defamatory statements have cast serious aspersions on the plaintiff’s standing and reputation. The people
in general and the business community in particular along with his fleet of employees now doubt the
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standing and credibility of this plaintiff. The CEOs of other companies have declined to have any public
meeting with the plaintiff so also they are reluctant to have any joint business ventures with the plaintiff.
(8) The plaintiff submits that the defendants without verifying any details as to the death of Mr. _______ have
deliberately and maliciously made allegations against this plaintiff. The plaintiff submits that this plaintiff
has built his image and reputation and the business empire over the years with lot of efforts and hard work.
The defendants by publishing such statements have tarnished the image of this plaintiff which has caused
a lot of anxiety, annoyance, embarrassment and business losses and loss of reputation to this plaintiff.
(9) The plaintiff submits that after the publication of the said defamatory matter by the defendants, now
reporters of various newspapers and TV channels are chasing this plaintiff to probe into the alleged news
dated _____, and as the plaintiff was already feeling low he did not and was not in a position to further
issue any statement or give any interview. The plaintiff submits that he has only issued a statement that the
said publication made by the defendants is false, fabricated and defamatory. All this has caused anxiety
and has harmed plaintiff’s reputation and standing.
(10) The plaintiff submits that the said publication has caused both loss of reputation and loss of business. The
defendants alone are responsible and liable for the same. Therefore, the plaintiff is entitled to recover
compensation of Rs ________ /- from the defendants for the defamatory matter published by them
together with interest thereon. Hence, the present suit.
(11) The plaintiff submits that in the police investigation report also it has been stated that the death of Mr.
________ is an accident. Thus the defendants are guilty of defaming this plaintiff.
(12) That the cause of action for the present suit arose on __________date, when the news was published
thereafter on ______ date, when the defendants refused to tender apology for the same and thereafter
everyday till the filing of this suit.
(13) That the cause of action arose on _________date, therefore, the suit is well within the prescribed period of
limitation.
(14) That the suit is valued at Rs __________/- for compensation, the reliefs claimed and for jurisdiction
including the Advocate’s fees and the appropriate court fee stamp is paid thereon.
(15) That the defamatory news was published in ______ newspaper at ______ place, the registered office of
the defendants is also situated at ________ place, therefore, this Hon’ble court has jurisdiction to entertain,
try and decide this suit.
(16) It is therefore most humbly prayed that,
(i) The defendants be directed to pay an amount of Rs _______ for the defamatory publication, together
with interest at the rate of _______% per annum from the date of publication till its actual realisation.
(ii) Award costs of this suit to the plaintiff from the defendants.
(iii) Pass any other just and equitable order as deemed fit in the interest of Justice.
An affidavit in support is filed herewith.
Place______ Plaintiff
Date______ Advocate for Plaintiff
Verification
I _______ age ______ occupation ________ residing at ________, the plaintiff above-named do hereby state and
declare that the contents of the above paragraphs from para 1 to 16 are true and correct to the best of my
knowledge, belief and information. I have signed and verified the same on the abovementioned date.
Signature of Plaintiff
Specimen No. II
IN THE COURT OF CIVIL JUDGE SR. DIV, Place

Page 6 of 7
AT __________
C.S. No.__________/ 20______
Suit for damages for defamation
The plaintiff above-named states most respectfully as under:—
(1) The plaintiff submits that the plaintiff is working as Head of the Department of Physics in ________
University for the past _____ years. The plaintiff has headed many research projects both of the
government and private bodies. The plaintiff has many research articles and papers to his credit published
in reputed national and international journals. The plaintiff is also recipient of many state and national
awards and honours for his valuable contribution in his field of study.
(2) The plaintiff submits that the defendant is working as a Reader in the same department with the plaintiff for
______ years.
(3) The plaintiff submits that on _______ date there was a conference held in the University of _______. Many
senior scientists, Heads of Departments of various other Universities, professors, scholars, authors, etc.
attended the said conference.
(4) The plaintiff states that in the second half of the 1st day of the conference when this plaintiff began with the
presentation of his research paper, the defendant started interrupting the presentation by asking some very
ridiculous and insulting questions such as “Have you ever read a book by ______? Have you read the
article by ________ on ______ subject?” The plaintiff submits that two senior scientists very politely told
the defendant to ask only the relevant questions at the end of the presentation, as they were keen to hear
plaintiff’s presentation uninterrupted.
(5) The plaintiff submits that thereafter the defendant refrained from asking any questions for the next 20
minutes or so. However, the defendant then suddenly stood up and started making highly defamatory
statements against the plaintiff.
The defendant said in the conference wherein 46 participants were present the following words to the
plaintiff:–
“You are a fraud. You have no right to become Head of Department. All research work is done by your
subordinate staff and juniors and you take the credit of the same. I am senior to you I should have
been the Head of Department. You have no knowledge about the subject. You have no research
ability.”
(6) The plaintiff submits that it is a practice in his university to video record selected conferences. At this
conference also video recording was done since this conference was a very prestigious and significant
one.
(7) The plaintiff submits that the plaintiff is also producing along with the plaint a clip/CD of the said video
recording wherein the above-stated false and highly defamatory statements were made by the defendant.
(8) The plaintiff submits that the said defamatory statements have cast serious aspersions on the standing and
reputation of this plaintiff. The plaintiff submits that due to all this his associates, colleagues and members
from the same field look at plaintiff with suspicion as to the level of his knowledge and research ability. One
of the professors Mr.________ remarked that “there cannot be any smoke without fire”. All this has caused
not only mental anxiety but also great harm to the standing and reputation of this plaintiff.
(9) The plaintiff submits that for the baseless, false and defamatory statements made by the defendant the
reputation of this plaintiff built through years of hard work as a reputed and renowned scholar in his field is
completely tarnished and his esteem and standing is lowered in the eyes of his colleagues, friends,
scholars etc. The said episode was also reported in ________ newspaper on ______ date. The newspaper
cutting is annexed with the plaint.
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(10) The plaintiff submits that. the defendant was very jealous and frustrated when this plaintiff was appointed
as Head of Department and was bestowed with many awards. The plaintiff submits that the defendant has
maligned the image of this plaintiff and is therefore liable to pay compensation of Rs. ________ to this
plaintiff for the said tort of defamation.
(11) The plaintiff submits that two of his publications are put on hold by the publishers because of the
defamatory statements made by this defendant. The names of the publishers are 1)_______and
2)__________.
(12) That the cause of action for the present suit arose on _____ date when the defamatory words were uttered
by the defendant and thereafter every day till the date of filing of this suit. Hence the present suit is well
within the period of limitation.
(13) The suit is valued at Rs.________ for compensation, advocate fees and other reliefs claimed and
appropriate court fee stamp is paid herewith.
(14) The cause of action arose at________ (place) where the defamatory statements were made and the
defendant resides and works for gain at ________and hence this Hon’ble court has jurisdiction to entertain,
try and decide this case.
(15) It is, therefore, most humbly prayed as follows:
(a) Direct the defendant to pay an amount of Rs.________ as compensation together with interest at the
rate of ___% from the date of the order till the actual realisation for the civil wrong of defamation
committed by the defendant.
(b) Award costs of this suit to the plaintiff from the defendant.
(c) Pass any other just and equitable order as deemed fit in the interest of justice.
Verification
I _______ age ____ occupation ______ residing at ______, the plaintiff above-named do hereby state and declare
that the contents of the above paragraphs in the plaint are true and correct to the best of my knowledge, belief and
information. I have signed and verified the same on the abovementioned date.
1 Winfield & Jolowiez on Tort, 10th ed Rep. (1975), p 240.

2 Lord Atkin, Sim v Stretch, [1936] 2 AII ER 1237, p 1240 (HL).
3 Ramakant v Devilal, 1969 MP LJ 805.
4 E Hulton Co v Jones, 1910 AC 20 .
5 SNM Abidi v Profulla Kumar Mohanta, AIR 2002 Gau 75.
6 DP Chaudhary v Manju Lata, AIR 1997 Raj 170.
7 Dhirendra Nath Sen v Rajat Kanti Bhadra, AIR 1970 Cal 216 : 1970 Cr LJ 662.
8 Eastwood v Holmes, (1858) 1F & F 347.
9 Section 499, Expln. 1, IPC.
10 Raghunath Damodhar v Janardan Gopal, (1891) ILR 15 Bom 599.
End of Document
5.2 Suit for Nuisance
Dr Medha Kolhatkar

5.2.1 Introduction
Nuisance means the unlawful interference with the use and enjoyment of land. According to Salmond, “the wrong of
nuisance consists in causing or allowing without lawful justification but not so as to amount to trespass, if escape of
any deleterious thing from his land or from elsewhere, into land in the possession of the plaintiff for example, water,
smoke, smell, fumes, gas, noise, heat, vibration, electricity, disease, germs, animals.”11 “Nuisance is an unlawful
interference with ‘persons’ use or enjoyment of land or of some right over or in connection with it.”12
The law of nuisance basically aims at protecting the use and enjoyment of the land. For example, if Mr. A does not
repair the drainage line on his property and the foul smell and poisonous gases spread on to Mr. B’s land, then the
act of Mr. A amounts to causing nuisance to Mr. B.
In case of nuisance, there is an indirect interference, with the use and enjoyment of property, example, smoke,
noise, vibrations, etc. In case of trespass there is direct physical interference with the plaintiff’s possession of land
through some materials or tangible object. For example, if Mr. X enters Mr. Y’s land without lawful justification and
without the consent of Mr. X, it amounts to trespass. But if Mr. X listens to music on a loudspeaker which is affecting
the comfort and enjoyment of Mr. B on his land, it amounts to nuisance.
Stephen defined nuisance to be “anything done to hurt or annoyance of the lands, tenements of another, and not
amounting to a trespass”.
Thus, acts which seriously interfere with the health, safety, comfort or convenience of the public generally or which
tend to degrade public morals have been considered public nuisance.
5.2.2 Kinds of Nuisance
Nuisance is of two kinds:—
5.2.2.1 Private Nuisance

5.2.2.2 Public Nuisance
Private nuisance is a tort, while public nuisance is a crime as stated in section 268 of the IPC. In case of public
nuisance, the plaintiff can claim compensation only if he has suffered any special or particular damage.
5.2.2.1 Private Nuisance
To constitute the tort of nuisance, the plaintiff has to prove
(i) that there was unreasonable interference,

(ii) that the interference was with the use and enjoyment of land,
(iii) damages.
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As civilised members of the society it is expected that each one of us must put up with certain degree of vibrations,
noise, smell, etc. But when the same becomes unreasonable then the sufferer can complain of nuisance.
What interference is unreasonable, varies according to the locality. As stated by Thesiger LJ in Sturges v
Bridgman13, “What would be nuisance in Belgrade square would not necessarily be so in Bremondsey”.
However, an act which is otherwise reasonable does not become unreasonable and actionable when the damage,
even though substantial, is caused solely due to sensitiveness of the plaintiff or the use to which he puts his
property.
In Radhey Shyam v Gur Prasad,14 the plaintiffs filed a suit against the defendant for a permanent injunction to
restrain them from installing and running a flour mill in their premises. It was contended that the said mill would
cause nuisance to the plaintiffs, who were occupying the first floor portion of the same premises, in as much as the
plaintiffs would lose their peace on account of rattling noise of the flour mill and thereby, their health would also be
adversely affected. The Hon’ble court held that substantial addition to the noise in a noisy locality, by the running of
the impugned machines, seriously interfered with the physical comfort of the plaintiff and as such it amounted to
nuisance and the plaintiffs were entitled to an injunction against the defendants.
In Ushaben v Bhagyalaxmi Chitra Mandir,15 the plaintiffs/appellants sued the defendants/respondents for a
permanent injunction to restrain them from exhibiting the film “Jai Santoshi Maa”. It was contended that exhibition of
the film was a nuisance because the plaintiff’s religious feelings were hurt as Goddess Saraswati, Laxmi and
Parvati were defined as jealous and were ridiculed. The court held that hurt to religious feelings was not an
actionable wrong. Moreover, the plaintiffs were free not to see the movie again.
It is essential to prove that there is substantial interference with the comfort and convenience in using the premises,
which will be actionable as a nuisance. The law does not take account of very trifling matters. (De minimis non curat
lex). Inconvenience and discomfort from the point of view of a particular plaintiff is not the test of nuisance but the
test is how an average man residing in the same area would take it. The plaintiff may be oversensitive.16
5.2.2.2 Public Nuisance
Public nuisance or common nuisance is an injury, danger or annoyance to the public generally and an offence
against public rights, safety and convenience. For example, obstructing the public way, constructing structures on
the public roads, etc. are actions due to which a large number of people are going to get affected. Thus, there may
be hundreds of actions and the courts would be flooded with cases for a single act of public nuisance. Therefore,
public nuisance is an offence. However, an individual can succeed in an action for public nuisance if he can prove
that special or particular damage is suffered by him. Suit for declaration and injunction can be filed for public
nuisance without suffering any special damage, as per section 91 of the Code of Civil Procedure, 1908.
5.2.3 Defences
The following are the defences in an action for nuisance:
5.2.3.1 Grant
5.2.3.2 Prescription
5.2.3.3 Statutory Authority
5.2.3.1 Grant
If the defendant had acquired right under the terms of contract to do an act of nuisance, no action can be brought
against him.
5.2.3.2 Prescription
An act of nuisance can be legalised by prescription. A right to commit a private nuisance can be acquired as an
easement if it has been peacefully and openly enjoyed as an easement, as of right without interruption and for a
period of 20 years. After 20 years nuisance becomes legalised.
5.2.3.3 Statutory Authority

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If the act in question has been authorised by a statute, then no action can lie. It is to be borne in mind that if the
statute authorises an act in question then its necessary consequences are also authorised.
Thus, in Vaughan v Taff Vale Rly Co,17 the defendant company had statutory authority to use locomotive engine
and a fire was caused by an escape of sparks. It was proved that the engines were constructed with all due care
and skill, and that it was impossible to prevent the escape of sparks, so the defendant company was not liable.
Without the statutory authority it would have been actionable nuisance to use engines which were a source of
danger.
5.2.4 Remedies
The following remedies are available if nuisance is committed:—
5.2.4.1 Abatement
5.2.4.2 Injunction
5.2.4.3 Damages
5.2.4.1 Abatement
Abatement means removal of nuisance by the party affected. The said removal should be done peacefully and
without danger to life or limb. Where there are more than one way of obtaining a nuisance, the least mischievous
one should be preferred. If it is necessary to enter on the land or property of another person then prior notice should
be given. However, such a prior notice is not required when:
(i) the act of nuisance is eminently dangerous to life or health,

(ii) the owner of the land was the original wrong doer,
(iii) the act of nuisance arises due to non-performance of some duty cast on the defendant by law.
5.2.4.2 Injunction
The order of injunction can be obtained from the court, if there is unreasonable interference without any lawful
justification with use of or enjoyment of land or property. The gravity of the act and its continuing nature should be
pleaded and the plaintiff must show that the resultant injury cannot be adequately compensated.
5.2.4.3 Damages
The plaintiff in a suit for nuisance can claim damages. The plaintiff should prove the extent and nature of nuisance
to claim damages.
5.2.5 Specimen
Specimen No. I
IN THE COURT OF CIVIL JUDGE SR. DIV, _________
AT __________
C.S. No.__________/ 20___
Suit for Injunction and Damages for Nuisance
The plaintiff most respectfully states as under:-

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1. The plaintiff states that he and his family members are residing at ________ for the past 20 years. The
said colony is a residential locality.
2. The defendant on the property adjoining to this plaintiff, i.e., on S. No. _____, around 6 months back has
started garage and is carrying on the business of repairing and servicing of cars, tempos and two
wheelers.
3. The plaintiff states that the defendant also carries on the business of colouring of cars and tempos. The
said business of the defendant in a residential locality especially on the property adjacent to the plaintiff’s
property is causing nuisance to the plaintiff and his family members.
4. The plaintiff states that the smithy work of these vehicles, using big hammers for dismantling the vehicles,
tempering of springs, reboring engines and keeping the cars and two wheelers’ engines working
continuously for 24 hours are all causing unbearable nuisance to the plaintiff, his family and to other
residents also in the said locality.
5. The plaintiff states that because of the garage activity the plaintiff and his family is suffering from
sleeplessness, blood pressure problems and mental irritation etc.
6. The plaintiff states that the defendant is also blocking road by keeping the vehicles for repair purpose and
this nuisance is going on round the clock which is causing physical and mental injury to the plaintiff and his
family.
7. The plaintiff states that when the plaintiff objected, the defendant initially agreed to shift his garage to some
other place but he has been dodging now and the nuisance is becoming more and more unbearable. The
plaintiff has also filed complaint against the defendant at ________ police station.
8. The plaintiff states that the defendant is carrying on the repair and servicing activity not only in the day time
but also during night which is unlawfully interfering with the peaceful use and enjoyment of the plaintiff of
his property.
9. The plaintiff states that the defendant is causing noise pollution, air pollution and is also causing road
obstruction. The smoke and dust are causing serious health issues especially to the young children and to
the elders of the plaintiff’s family.
10. The plaintiff states that, as the defendant paid no heed to the requests of this plaintiff, the plaintiff is
compelled to file the present suit for claiming compensation for nuisance from the defendant and for other
reliefs. The plaintiff submits that the defendant is liable to pay compensation of Rs. ________ to this
plaintiff for the act of nuisance committed by the defendant.
11. The plaintiff states that the defendant should be restrained by an order of permanent injunction from
carrying on the business of garage adjoining to the plaintiff’s residence. The said act of the defendant is
seriously infringing the right of the plaintiff and his family to use and enjoy their property.
12. The cause of action for the suit arose on ________ date when the defendant started the garage and
thereafter every day till the filing of the suit. Hence, the suit is well within the period of limitation.
13. The suit is valued at Rs. ________ for various reliefs claimed including advocate’s fees and the necessary
court fee stamp is paid herewith.
14. The cause of action arose within the territorial jurisdiction of this court; hence, this court has jurisdiction to
entertain, try and decide the suit.
15. It is, therefore, most humbly prayed that:
a) The defendant, his employees etc. be restrained by an order of permanent injunction from carrying on
the business of garage on the property bearing S. No. ________, adjacent to that of the plaintiff’s
property.
b) Award damages of Rs. ________ for the act of nuisance committed by the defendant from _______
date till the filing of suit together with interest thereon at ________ rate.
c) Award costs of this suit to the plaintiff from the defendant.
d) Pass any other just and equitable order as deemed fit in the interest of justice.

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Verification
I _______ age _______ occupation _______ residing at _______, the plaintiff above-named do hereby state and
declare that the contents of the above paragraphs in the plaint are true and correct to the best of my knowledge,
belief and information. I have signed and verified the same on the abovementioned date.
Specimen No. II
AT __________
C.S. No.__________/ 20___
Suit for Injunction and Damages for Nuisance
The plaintiff above-named states most respectfully as follows:—
(1) The plaintiff submits that the plaintiff is a resident of ___________ Housing Society. That the said society is
a bungalow society. The plaintiff’s Bungalow ‘Anand Villa’ at S. No. _________ at __(address)___ is
adjoining to defendant’s Bungalow ‘Taal’ which is at S. No. _______ at ___(Give the detailed address)__
(2) The plaintiff submits that the plaintiff is residing at the above mentioned bungalow for the past 13 years.
The defendant purchased the adjoining bungalow 2 years back that is in the year _____ and has named it
as ‘Taal’. The defendant is a ‘Kathak’ dancer.
(3) The plaintiff contends that the defendant initially would conduct dance practice only with 3 or 4 of his
disciples. But from June 20____ the defendant expanded his dance academy. The dance class of the
defendant’s academy begins at 7.30 in the morning and ends at 10:30 in the evening.
(4) The plaintiff states that each batch consists of almost 20 to 25 students. The students practice with the
‘Ghungroos’. Intolerable and unbearable sound and noise is generated during the dance class sessions
conducted by the defendant’s academy.
(5) The plaintiff submits that the music, sound of the footwork, Ghungroos, the chatting of the students,
vehicles, etc. continuously and constantly disturbs this plaintiff and his family members. This plaintiff’s son
is only two years old and is unable to sleep, due to which his health is deteriorating.
(6) The plaintiff submits that the plaintiff’s old parents are unable to carry on their daily routine, due to the
constant noise and disturbance caused by the defendant’s dance academy.
(7) The plaintiff submits that the plaintiff approached the defendant and explained to him, that running of dance
classes in this fashion is causing great nuisance to the plaintiff and his family members. He further called
upon the defendant and requested him, not to conduct the dance classes, as the same is causing nuisance
and disturbance to the plaintiff and his family members.
(8) The plaintiff submits that the defendant paid no heed to the requests made from time to time by this
plaintiff. The said act of the defendant is unlawfully interfering with the peaceful use and enjoyment of the
plaintiff of his property. The plaintiff states that the defendant is guilty of committing nuisance.
(9) That the plaintiff submits that the defendant has committed and is committing nuisance by conducting
‘kathak’ dance classes. The defendant started the dance classes in June in ____ year. Since then the
plaintiff and his family members are put to great discomfort and have suffered health problems because of
the noise caused during the dance classes. It is therefore necessary that the defendant be restrained by an
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order of permanent injunction from conducting the dance classes. The said act of defendant is seriously
infringing the right of the plaintiff and of his family members to use and enjoy their property.
(10) The plaintiff submits that the defendant is liable to pay compensation to the tune of Rs. _________ to this
plaintiff for the act of nuisance committed by the defendant. The plaintiff submits that the defendant has
been committing the wrong of nuisance from ________ date.
(11) The plaintiff submits that the cause of action for the suit first arose on _______ date when the defendant
started the dance classes and thereafter everyday till the filing of the suit. Hence the suit is well within the
period of limitation.
(12) That the suit is valued at Rs. _______ for various reliefs claimed including advocate’s fees and the
necessary court fee stamp is paid thereon.
(13) That the cause of action arose within the territorial jurisdiction of this court. Hence this court has jurisdiction
to entertain, try and decide the suit.
(14) It is, therefore, most humbly prayed that
(i) The defendant, his disciples, employees, agents etc. be restrained by an order of permanent injunction
from conducting dance classes at his bungalow ‘Taal’.
(ii) Award damages to the tune of Rs. ________/- for the act of nuisance committed by the defendant from
_______ date till the filing of the suit together with interest thereon at _______rate.
(iii) Award costs of this suit to the plaintiff from the defendant.
(iv) Pass any other just and equitable order as deemed fit in the interest of justice.
Date______ Adv. for Plaintiff
Verification
I _______ age _______ occupation _______ residing at _______, the plaintiff above-named do hereby state and
Specimen No. III
IN THE COURT OF CIVIL JUDGE SR.DIV, _________
AT __________
C.S. No.__________/ 20___
Suit for Declaration and Permanent Injunction (Public Nuisance)
(1) The plaintiff submits that the plaintiff is an orthopedic surgeon running orthopedic hospital by name
_________ at _________. To the east of the said hospital there is a public road by name _______.
(2) The plaintiff submits that the defendants had put up a pandal (temporary structure of bamboos and tin
sheds) on the said public road during Durga Pooja. The plaintiff submits that for constructing the said
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pandal the defendants have done digging of the road indiscriminately. It is also reliably learnt that the
defendants did not obtain any consent/permission from the civic body for the construction of the said
pandal. Thus, the public road has been considerably damaged by the defendant.
(3) The plaintiff submits that Durga Pooja was over on ______ date; however, till date the defendants have not
removed the said pandal. Now the defendants are using the said structure as a food stall.
(4) The plaintiff submits that the leftover food at the pandal/food stall is littered all over the place, which is
causing serious health hazards to the members residing in the vicinity. The said food stall is illegal and
unauthorised, and the defendants have no right to run the stall on the public road. This act on the part of
the defendants amounts to Public Nuisance. The said food stall is open from 6 O’clock in the morning till
midnight which causes annoyance and nuisance to all the residents in the vicinity and especially to the
patients in the plaintiff’s hospital.
(5) The plaintiff submits that the noise, smoke, foul smell, garbage etc. at the said food stall is causing great
trouble, inconvenience, harassment, nuisance and health hazards to patients at the plaintiff’s hospital. The
patients are constantly complaining about the said nuisance to the plaintiff and his staff. The plaintiff has
produced the written complaints alongwith this plaint made by the patients to him.
(6) The plaintiff submits that this plaintiff had lodged a complaint with ________ Municipal Corporation but to
no avail. The plaintiff had called upon the defendants several times, to remove the pandal as it is
unauthorised and illegal. The same is causing traffic problems, and air and noise pollution. The defendants
paid no heed to this plaintiff. Moreover, the defendants abused this plaintiff and threatened him of dire
consequences.
(7) The plaintiff, therefore, is left with no alternative but to file the present suit seeking permanent injunction
from the court thereby restraining the defendants from using the public road to run the food stall.
(8) The cause of action for the suit arose on _______date when the plaintiff orally requested the defendants to
remove the structure as Durga Pooja festival was over and on _______ date, when the defendants started
running a food stall and thereafter, everyday till the filing of this suit.
(9) The unauthorised and illegal structure is situated at _______(place), therefore, this Hon’ble court has
jurisdiction to entertain, try and decide the case.
(10) That the suit is filed well within the period of limitation and hence is not barred by limitation.
(11) That the suit is valued at Rs.______ for various reliefs claimed herein and the necessary court fee stamp is
paid herewith.
(12) It is, therefore, most humbly prayed as follows:—
(i) It be declared that the said pandal (temporary structure of bamboos and tin sheds) is illegal and
unauthorised and direct the defendants to remove the same.
(ii) The defendants, their agents, employees, servants etc. be restrained by an order of permanent
injunction from running the food stall on the public road.
(iii) Award costs to the plaintiff from the defendant.
Verification
I _______ age _____ occupation ______ residing at ______, the plaintiff above-named do hereby state and declare
Page 8 of 8
11 Salmond, Law of Torts, 20th ed, p 57.

12 Dr. Winfield on Tort, 6th ed, p 536.
13 Sturges v Bridgman, (1879) LR 11 Ch D 852.
14 Radhey Shyam v Gur Prasad, AIR 1978 All 86.
15 Ushaben v Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13.
16 Law of Torts by RK Bangia, 12th ed, p 213.
17 Vaughan v Taff Vale Rly Co, (1860) 5 H & N 679.
End of Document
5.3 Suit for Trespass
Dr Medha Kolhatkar

5.3.1 Introduction
Trespass to land means interference with possession of land without lawful justification. Trespass is a wrong
against possession rather than ownership. In trespass the interference with the possession is direct and/or through
some tangible object. Trespass could be committed either by a person himself entering the land of another or doing
the same through some material object, for example, throwing of stones on another person’s land, parking vehicles
on another person’s land, etc. Trespass is possible not only on the surface of the land but also on the sub soil. It is
actionable per se and the plaintiff need not prove any damage for such an action.
5.3.2 Trespass to Land
The word “trespass” is derived from the Latin term transgressio. Trespass means a voluntary wrongful act against
the person of another or to the disturbance of his possession of property against his will. The act of trespass may
be intentional or negligent, which results in violation of plaintiff’s right. If there is a direct interference with the
possession of the plaintiff, trespass is said to have been committed.
Trespass may be committed by:
(1) Entry on the land of another without consent.

(2) The defendant continues to remain on the land against the possessor’s will or consent, or
(3) by committing any such act which directly interferes with the plaintiff’s possession without any lawful
justification.
(4) Entry:—The entry of the defendant on the immovable property of the plaintiff must be voluntary one. If it is
an involuntary entry upon the land of the plaintiff, then it will not amount to trespass. Even where the entry
is made voluntarily but due to mistake, it will still amount to trespass. Entry below the surface of the earth
and above the earth would also amount to trespass. This principle is embodied in the maxim cujus est
solum, ejus est usque ad coelum et ad inferos. It means that whoever owns the soil, also owns everything
below and above the soil. This maxim does not mean any ownership over the infinite space. It means only
that portion of airspace, which is capable of being reduced to private ownership.
It is to be remembered that in trespass, the injury should be direct. If it is indirect or consequential, it

may be a case of nuisance and not of trespass.
(5) The defendant continues to remain on the land against the possessor’s will or consent:—When a
person lawfully enters upon the land of the plaintiff but remains on the land thereafter his right of entry has
ended or continues to remain on the premises without the consent or will of the plaintiff he will be
trespasser.
(6) By committing act which directly interferes with the plaintiff’s possession without any lawful
justification:—Every invasion of private property is an act of trespass. A person may commit trespass by
not only entering on to the premises but also by placing things, objects and materials on the plaintiff’s land.
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In case of trespass the interference with the possessory right of the plaintiff should be direct and not
consequential.
As regards trespass by remaining on land, Salmond and Heuston on the Law of Torts, 19th ed, p 50 reads:
Even a person who has lawfully entered on land in the possession of another commits a trespass if he remains there after
his right of entry has ceased. To refuse or omit to leave the plaintiff’s land or vehicle is as much a trespass as to enter
originally without right. Thus any person who is present by the leave and licence of the occupier may, as a general rule,
when the licence has been properly terminated, be sued or ejected as a trespass if after request and after the lapse of a
reasonable time he fails to leave the premises.
5.3.3 Aerial Trespass
The Indian Aircraft Act, 1934, under section 17 has stated that no suit shall be brought in any Civil Court in respect
of trespass or in respect of nuisance by reason only of the flight of aircraft over any property at a height above the
ground which having regard to wind, weather and all the circumstances of the case is reasonable, or by reason only
of the ordinary incidents of such flight. The Act also provides that for the articles or persons falling from the aircraft
without the default of the owner of the land, where those articles fall and cause damage to land or property, the
damage would be recoverable from the owner of the aircraft.
5.3.4 Trespass ab-initio
It means trespass from its very beginning. When a person enters on the land of another, under the authority of law
and is guilty of an abuse of that authority, by committing a wrong of misfeasance against the other person, he is
deemed to have entered the land without any authority and therefore, is guilty of committing trespass ab-initio for
the entry itself.
To treat the entry of a person on certain premises as trespass ab-initio, non-feasance (i.e., omission to do
something), it is necessary to prove that the defendant is guilty of the positive act of misfeasance (i.e., doing of
wrongful act). In ‘Six Carpenters’ case ((1610) 8 Co. rep. 146a), Six carpenters entered an inn and ordered some
wine and bread. After having the same they refused to pay for it. It was held that they had done no act of
misfeasance and mere non-payment being only non-feasance, did not amount to trespass ab-initio.
In Gokak Patel Volkart Ltd v Dundayya Gurushiddaiah Hiremath,18 the concept of continuity of a civil wrong was
found. Under law of torts trespass may be continuing one. If the entry is lawful but it is subsequently abused and
continued thereafter the permission is determined, the trespass may be ab-initio.
5.3.5 Defences
The following are the defences in an action for trespass.
5.3.5.2 Authority of Law
5.3.5.1 Consent
If the defendant enters the plaintiff’s premises with the plaintiff’s consent then it will not amount to trespass.
Consent may be given in the following manner:—
(i) Licence:—Section 52 of the Indian Easements Act, 1882 defines licence. A licence is permission to do
what is otherwise restricted, prohibited or illegal. It, therefore, gives an authority to enter on and be on land
which, but for licence, would be trespass.
(ii) Grant:—If grant by way of absolute right is given to another, then he can use it undisturbed. However, to
successfully plead the defence of grant, such document should be registered under the Indian Registration
Act, 1908.
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5.3.5.2 Authority of Law
If the plaintiff’s possession is interfered for inspection of premises, retaking of goods (if done peacefully) exercise of
easementary rights, prescription, abatement of nuisance, etc. all fall under the head of authority of law.
5.3.6 Remedies
The following remedies are available if trespass is committed:—
5.3.6.1 Right to re-enter

5.3.6.2 Action for ejectment or recovery of land
5.3.6.3 Suit for mesne profits
5.3.6.4 Distress damage feasant
5.3.6.1 The right to re-enter
The person who is entitled to possession of the land/immovable property can re-enter the premises in a peaceful
manner. He can use reasonable force to get a trespass vacated.
5.3.6.2 Action for ejectment or recovery of land
A person who is dispossessed, has a speedy remedy under section 6 of the Specific Relief Act, 1963 to restore his
possession.
Section 6 of the Specific Relief Act, amended by the Specific Relief (Amendment) Act, 2018 provides:
Section 6. Suit by person dispossessed of immovable property.—
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any
person [through whom he has been in possession or any person] claiming through him may, by suit, recover possession
thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought— (a) after the expiry of six months from the date of dispossession; or (b)
against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any
such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such
property and to recover possession thereof (w.e.f. 1-10-2018).
Therefore, the amended act has widen the scope of section 6. A suit for recovery of possession under section 6 of
the Act may be filed either by the person who was dispossessed without his consent or any person through whom
he has been in possession or any person claiming through that person.
5.3.6.3 Suit for mesne profits
The person who is dispossessed has right to restore his possession under section 6 of the Specific Relief Act, he is
also entitled to an additional remedy that is to claim mesne profits. The plaintiff thus, can claim the losses suffered
by him during the period of dispossession. Mesne profits also include profits taken by the defendant during the
period of his occupancy. The term “mesne profit” implies the profits that the trespasser has enjoyed during unlawful
occupancy of the plaintiff’s land or premises.
5.3.6.4 Distress damage feasant
Under the right of distress damage feasant, the person in possession of land can seize the trespassing cattle or
Page 4 of 7
other chattels, and detain them until compensation has been paid to him for the act of trespass and damage done.
The right of distress damage feasant can be exercised when the animals or chattels are committing trespass. If the
animal has gone out of the premises or the chattel is removed from the premises then it cannot be seized. Again it
is to be remembered that only those animals/chattel should be seized which had committed trespass. The object
behind detaining is to compel the trespasser to pay compensation. After the compensation is paid the seized
goods/animal should be returned.
5.3.7 Specimen
Specimen No. I
IN THE COURT OF ________
AT __________
C.S. No.________/ 20___
Suit against trespasser for recovery of possession and compensation.
The plaintiff above-named most respectfully submits as follows:—
(1) The plaintiff states that the plaintiff is the owner of flat No. 7 situated at ______ Housing Society CTS
No._____/ admeasuring _____ sq mts. (hereinafter, referred to as the suit property) and more particularly
described in the schedule given herein below.
(2) The plaintiff submits that the defendant and the plaintiff both work in the ___________Pvt. Ltd. Company.
The plaintiff and the defendant thus became good friends. The defendant, one afternoon during the lunch-
time in the office informed the plaintiff and other colleagues that his daughter namely _______ is getting
married on ______ date. He also informed that his would-be son-in-law and his parents stay in Canada
and the plaintiff has to make all the arrangements for their stay, as they neither have any property of their
own at______ (place) nor any relatives.
(3) The plaintiff states that the defendant further informed that it would be quite expensive to book hotel rooms
for 15 days and that, therefore, he intends to arrange the accommodation in a furnished flat, for 15 days.
(4) The plaintiff submits that as the plaintiff and the defendant were good friends, this plaintiff offered his flat at
______ (place), i.e., the suit property to the defendant for temporary use and occupation for 15 days. The
plaintiff gave one set of keys of the flat on ________date to the defendant for 15 days.
(5) The plaintiff submits that the defendant’s daughter got married on _______ date and the defendant was to
hand over the keys of the flat to this plaintiff on _____ date, as per the understanding reached between the
plaintiff and the defendant.
(6) The plaintiff submits that on _______ date as the defendant did not give the keys of the flat to this plaintiff,
the plaintiff demanded the keys and requested the defendant to remove all his belongings from the suit
property. The defendant verbally promised to hand over the keys and vacate the suit property by _____
date.
(7) The plaintiff submits that, however under one pretext or the other the defendant avoided handing over the
possession and keys of the flat to the plaintiff. The plaintiff states that from ______ date the defendant is a
trespasser with respect to the suit property as he failed and neglected to vacate the flat and hand over the
keys to this plaintiff on _______date. Therefore, the use and occupation of the suit property by the
defendant is without the consent of this plaintiff.
(8) The plaintiff submits that the defendant is liable to pay Rs.______ as compensation for the illegal use and
occupation of the suit property. The defendant is liable to hand over vacant and peaceful possession of the
suit property along with keys of the flat to the plaintiff. Hence, the present suit.
(9) The plaintiff submits that the suit is valued at Rs.______ for the various reliefs claimed herein and the
appropriate court-fee stamp is paid herewith.
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(10) That the cause of action first arose on ______ date, i.e., at the end of 15 days when the defendant did not
hand over the vacant and peaceful possession of the flat and thereafter, every day till the filing of this suit.
Hence, the present suit is well within the period of limitation.
(11) The suit property is situated at _____ (place), the suit is valued at Rs. ________ therefore, this Hon’ble
Court has territorial and pecuniary jurisdiction to entertain, try and decide the suit.
(12) It is, therefore, most humbly prayed as follows—
(a) The defendant be directed to vacate the suit property and hand over the keys of the suit property to
this plaintiff and deliver the vacant and peaceful possession of the suit property to the plaintiff.
(b) The defendant be directed and ordered to pay Rs.______ as compensation for the act of trespass with
interest thereon at the rate of 18% per annum from the date of filing of this suit till its actual realisation.
(c) Award costs of this suit to the plaintiff from the defendant.
(d) Pass any other just and equitable order as deemed fit in the interest of justice.
Schedule of the property
Verification
I _______ age ____ occupation _______ residing at _______, the plaintiff above-named do hereby state and
Specimen No. II
IN THE COURT OF CIVIL JUDGE, SR. DIV. ________
AT __________
C.S. No.________/ 20___
Suit for compensation for trespass.
The plaintiff above-named most respectfully states as follows:—
(1) The plaintiff submits that the plaintiff resides at ____________ (more particularly described in the schedule
herein given below) and the defendant is his neighbour, residing in Bungalow by name _________, at
_______.
(2) The plaintiff states that wedding of defendant’s son by name ________ was scheduled on ________ date.
A few days prior to the date of the wedding, various guests, relatives, friends, etc. of the defendant came to
attend and participate in the wedding ceremony. The guests and relatives who came to the defendant’s
house, parked their respective vehicles, cars without adhering to any parking norms in a very haphazard
manner. The plaintiff and his family members found it difficult to park their cars and move out from the
bungalow lane due to the inorderly parking done by the defendant and his guests.
(3) The plaintiff submits that the plaintiff requested the defendant to park the vehicles in an organised manner
so as to reduce the extent and degree of inconvenience that was being caused to the plaintiff and his
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family members. The defendant assured the plaintiff that he would instruct his guests and would personally
pay attention to ensure that all the vehicles are properly parked.
(4) The plaintiff submits that the plaintiff’s mother is _________ years old and is suffering from various health
issues and requires constant medical attention.
(5) The plaintiff submits that, on _______ date at around 2 am health of plaintiff’s mother suddenly
deteriorated and the doctor on examining her, advised that she should be immediately hospitalised for
further treatment and medical tests. The plaintiff called for ambulance but the ambulance could not reach
the plaintiff’s house because of the haphazard parking done by defendant and his guests. Therefore, the
ambulance was parked at a distant place from plaintiff’s house.
(6) The plaintiff submits that the defendant’s house was locked as the defendant was away with his guests and
relatives at __________ place for the wedding of his son. The said place, i.e., the wedding venue was
almost 35 to 45 km away from the plaintiff’s residence. The plaintiff tried to contact the defendant; however,
the defendant did not respond to the phone calls of the plaintiff.
(7) The plaintiff submits that the medical attendants informed that carrying plaintiff’s mother on stretcher for
such a long distance is not possible for them. The plaintiff states that almost half an hour to 45 minutes
time was spent in contacting the defendant to request him to move the vehicles wrongly parked and work
out the ways and means as to how the ambulance could reach the gate of this plaintiff.
(8) The plaintiff submits that all this caused great tension, anxiety, stress and harassment to the plaintiff and
his family members. The plaintiff submits that finally with great difficulty and with the help of neighbours,
the plaintiff somehow managed to take his mother to the ambulance, which was almost half a kilometre
away from the plaintiff’s house.
(9) The plaintiff submits that, due to the delay in admitting plaintiff’s mother, plaintiff’s mother suffered serious
medical complications which extended her stay in the hospital. Moreover, the doctors informed that any
further delay would have caused complete paralysis to the patient..
(10) The plaintiff submits that plaintiff’s mother was in hospital from ________ date to ________ date and this
plaintiff incurred medical expenses to the tune of Rs. __________ for which defendant alone is
responsible.
(11) The plaintiff submits that, because of the irresponsible behaviour of this defendant and his guests, who
parked their vehicles haphazardly, in front of this plaintiff’s bungalow and in the adjoining by-lane, this
plaintiff suffered inconvenience and immense harassment..
(12) The plaintiff states that, as per the society bye-laws and rules, only owners of Bungalows can park their
vehicles on the right hand side or the left side of the entrance gate. Therefore, the defendant has
committed trespass by parking his vehicles and allowing his guests to park their vehicles in front of the
plaintiff’s gate as well as on both the sides of the lane..
(13) The plaintiff states that the wrongly parked vehicles were removed by the defendant and his guests after 7
days, i.e., on _____ date. During this period, the plaintiff suffered inconvenience and hardship because of
the trespass and nuisance committed by the defendant.
(14) The plaintiff states that this plaintiff never consented to the said disorderly parking done by the defendant.
On the contrary the plaintiff repeatedly called upon the defendant to remove the said vehicles which were
parked wrongly and in violation of the various rules and bye-laws of the society. The plaintiff states that the
plaintiff suffered mental anxiety, inconvenience and incurred monetary expenses because of the
irresponsible and high-handed behaviour of the defendant.
(15) The plaintiff states that, for the said act of trespass and for the additional medical expenses incurred by the
plaintiff for his mother’s illness the defendant is liable to pay him an amount of Rs. _________/- as
compensation.
(16) The plaintiff submits that the suit is valued at Rs.______ for various reliefs claimed herein and the
appropriate court-fee stamp is paid herewith.
(17) That the cause of action arose on ______ date when the defendant and his guests parked their vehicles in
the parking area allotted to the plaintiff and also violated the bye-laws of the society, hence the present suit
is well within the period of limitation.
(18) The suit property is situated at _____, the suit is valued at ________ therefore this Hon’ble Court has
territorial and pecuniary jurisdiction to entertain, try and decide the suit.
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(19) It is, therefore, most humbly prayed as follows—

(a) The defendant be ordered and directed to pay Rs.______ as compensation for the act of trespass with
interest at the rate of 18% per annum from the date when the trespass was committed till the
realisation of the amount.
Verification
18 Gokak Patel Volkart Ltd v Dundayya Gurushiddaiah Hiremath, (1991) 2 SCC 141 : 1991 SCR (1) 396.
End of Document
5.4 Suit for Malicious Prosecution
Dr Medha Kolhatkar

5.4.1 Introduction
In order to check false accusations of innocent persons, the tort of malicious prosecution came to be recognised.
Malicious prosecution means institution of criminal or bankruptcy proceedings against another, or liquidation
proceedings against a company, or to procure the arrest and imprisonment of another by means of judicial process,
civil or criminal, or to cause execution to issue against the property of a judgment debtor, maliciously and without
reasonable and probable cause by which that other suffers damage to his fame, person or property, provided that
the proceedings terminate in other’s favour so far as may be possible.19
Malicious prosecution basically means instituting unsuccessful criminal proceedings against another maliciously
and without reasonable and probable cause. Whenever law is set in motion by abuse of legal process, not for the
purposes of indicating grievances but for ulterior and malicious purposes in order to cause agony and harassment
to others, an action will be maintainable against the person responsible for initiating the legal proceedings. The
consequences of such malicious criminal proceedings against a person are that it causes him worry, vexation,
annoyance, inconvenience, expenses etc.20
According to Supreme Court, malicious prosecution may be defined as prosecution on some charge of crime which
is willful, wanton or reckless or against the prosecutor’s sense of duty and right, or for ends he knows or is bound to
know are wrong and against the dictates of public policy.21
Once process of criminal law is set in motion without reasonable cause and damage results to the effected party
claim for damages by way of civil suit becomes maintainable. It is not at all necessary to maintain suit for damages
for malicious prosecution, that criminal process initiated by defendants should have reached stage where plaintiff
might have been formally prosecuted and then acquitted. Prosecution and acquittal in strict sense are not
conditions required for maintaining suit for malicious prosecution. What is required is that criminal law was set in
motion against plaintiff; he suffered damages due to that and ultimately that process of criminal law ended in favour
of plaintiff. Hence, it is not formal acquittal which is necessary. It is only ending of criminal process in favour of
plaintiff which makes his suit for damages maintainable.22
The term “malicious prosecution” imports a causeless as well as ill-intended prosecution. In Gangadhar Padhy v
Prem Singh,23 it has been held after relying upon the judgement of ST Sahib v N Hasan Ghani Sahib,24 the action
for Malicious Prosecution is not favoured in law and should be properly guarded and its true principles strictly
adhered to, since public policy favours the exposure of a crime and it is highly desirable that those reasonable
suspected of crime be subjected to the process of criminal law for the protection of society and the citizen be
accorded immunity for bonafide efforts to bring anti-social members to the society to the bar of justice. It was thus
held, that to be successful in a suit for Malicious Prosecution, it is imperative for the plaintiff to show that the
proceedings had been instituted against him for an offence which was groundless as evidenced by the successful
termination of the proceedings in his favour and which were instituted against him by the defendant “without
probable cause” and from “malicious motive”, i.e., for “indirect and improper motive”.
5.4.2 Essentials of Malicious Prosecution
In an action for malicious prosecution, the plaintiff must prove the following:—
Page 2 of 5
5.4.2.1 That the plaintiff was prosecuted by the defendant.
5.4.2.2 That the prosecution ended in the plaintiff’s favour.
5.4.2.3 That the defendant acted without reasonable and probable cause.
5.4.2.4 That the defendant was actuated by malice.
5.4.2.5 That the plaintiff suffered damages.
5.4.2.1 That the plaintiff was prosecuted by the defendant
The word “prosecution” carries a wider meaning and does not merely mean prosecution in criminal court. “It means
prosecution which may not be of criminal nature but is such as would cause any slur or odium upon the good name
of the plaintiff and an action for damages lies if the other essentials of ‘malicious prosecution’ are made out”.25 A
person cannot be deemed to be prosecutor merely because he gave information of some offence to the police. The
mere giving of information even though it was false, to the police cannot give cause of action to the plaintiff in a suit
for malicious prosecution if he (the defendant) is not proved to be the real prosecutor by establishing that he was
taking active part in the prosecution and that he was primarily and directly responsible for the prosecution.26
5.4.2.2 That the prosecution ended in the plaintiff’s favour
It is to be noted that prosecution does not commence when a complaint is made to the Police authorities and the
Police starts its proceedings. It is incumbent for the plaintiff in a suit for malicious prosecution to prove that the
prosecution against him by the defendant terminated in his favour. The prosecution is said to end in the plaintiff’s
favour when he shows that:
(i) He was acquitted by the court on merit or on technical grounds, or

(ii) That his conviction was quashed or set aside by the Appellant court, or
(iii) His prosecution was discontinued or withdrawn by the defendant.
Merely because the plaintiff came to be acquitted or discharged by the criminal court as the prosecution failed to
prove the case beyond doubt as is required in criminal law; it does not mean such acquittal or discharge could
necessarily boomerang upon the defendant as a case for malicious prosecution.27
5.4.2.3 That the defendant acted without reasonable and probable cause
The next condition for the plaintiff to prove the tort of malicious prosecution is that the defendant prosecuted him
without any reasonable and probable cause. Reasonable and probable cause may be defined to mean the
reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant any
ordinary, prudent and cautious man into believing that the person charged with the crime was probably guilty of the
offence with which he is charged.28
Thus, reasonable and probable cause implies honest belief in the guilt of the accused, based upon reasonable
grounds. In the case of Girja Prasad Sharma v Uma Shankar Pathak,29 the plaintiff Uma Shankar Pathak was an
advocate and also a Jana Sangh Leader. Jana Sangh started an agitation due to food scarcity in Panna District.
Girja Prasad the Sub-Inspector was deputed to control the agitation. He stated that while he was being assaulted,
his revolver got fired and the same day he lodged an FIR stating therein that he was assaulted, his wrist watch was
snatched and that the plaintiff Uma Shankar was present at the scene, and was continuously instigating the crowd.
The court found that the complaint was false as at the relevant time, Uma Shankar was not present at the scene but
was appearing in a case before the Civil Judge. Girja Prasad was, therefore, acting without reasonable and
probable cause and trying to use the machinery for an improper purpose of falsely implicating the plaintiff. And
therefore, he was held liable for malicious prosecution.
5.4.2.4 That the defendant was actuated by malice
Malice in its ordinary meaning is wish, desire or intention to hurt someone. Malice implies indirect and improper
motive.
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Malice means the presence of some improper and wrongful motive that is to say, an intent to use the legal process
in question or something other than its legally appointed or appropriate purpose. It is to be established by inference
from circumstances and cannot be proved by direct evidence.30 In Abdul Majid v Harbansh Chaube,31 the station
officer of the Police station had conspired with the defendants and said that the plaintiff was involved in a dacoity,
and the “Hansauli” used in the dacoity was recovered from the plaintiff’s house. The court acquitted the plaintiff on
the benefit of doubt. The plaintiff brought an action against the defendants. The court observed that the defendants
were actuated by improper and wrongful motive to prosecute the plaintiff and thus held that the defendant was
liable for malicious prosecution.
It is to be noted that the ultimate acquittal of the plaintiff does not mean that it was malicious. However, enmity,
retaliation, haste, omission to make due and proper enquiries, recklessness, harassment, personal spite, sinister
motive, etc. are some of the items which are relied upon for proving malice.32
5.4.2.5 That the plaintiff suffered damages
The plaintiff must prove that he suffered damage as a consequence of the prosecution complained of. In a claim for
malicious prosecution, the plaintiff can claim damages on the following three counts:
(i) Damage to plaintiff’s reputation

(ii) Damage to plaintiff’s person
(iii) Damage to plaintiff’s properties
While assessing damages the court will have to consider:
(1) the nature of the offence which the plaintiff was charged of
(2) the extent of inconvenience to which the plaintiff was subjected
(3) the monetary loss
(4) the status of position of law.33
5.4.3 Specimen
Specimen No. I
IN THE COURT OF CIVIL JUDGE, SR. DIV. ________
AT __________
C.S. No.________/ 20___
Suit for damages for malicious prosecution
The plaintiff most respectfully states as follows:—
(1) The plaintiff states that the plaintiff is a construction contractor and is residing on the above address for the
past ____ years. The plaintiff is carrying on the business as construction contractor for the past _______
years and has completed successfully many prestigious projects including the construction of _______
mall.
(2) The plaintiff states that the defendant no. 1 was working with the plaintiff as a sub-contractor was providing
workers and construction machinery. The plaintiff states that the defendant no. 1 in order to make secret
profits instigated the workers to demand excess wages from the plaintiff. The plaintiff further states that
differences and disputes arose between the plaintiff and the defendant no. 1. Thus, the plaintiff
discontinued to hire the services of the defendant no. 1 as a sub-contractor from _______ date.
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(3) The plaintiff states that the defendant no. 1 due to the enmity with this plaintiff had set up a trap to malign
the image and standing of this plaintiff. The defendant no. 1 instigated the defendant no. 2 who works as a
maid servant at plaintiff’s house to lodge a false complaint against the plaintiff. Thus, the defendant no. 1
and 2 lodged a false complaint against this plaintiff bearing complaint no. _______ at _______.
(4) The plaintiff states that in the said criminal complaint the defendant no. 2 has alleged that while she was
cleaning the bedroom, the plaintiff entered the room, closed the room and pulled the defendant no. 2
towards him and when the defendant no. 2 resisted, the plaintiff slapped her several times thereby causing
bodily injury to the defendant no. 2. It is further alleged in the said complaint that the plaintiff tried to rape
the defendant no. 2 and that the plaintiff has outraged the modesty of the defendant no. 2.
(5) The plaintiff states that it has been contended by the defendant no. 1 that the said offence was committed
by the plaintiff in his presence. The defendant no. 1 has deposed in the said criminal case that, he was at
the plaintiff’s house to call the defendant no. 2 to work at _______ construction site. The defendant no. 1
has categorically stated in the complaint and in his deposition that he was standing at the window of the
bedroom of the plaintiff when the alleged act was committed by the plaintiff.
(6) The plaintiff states that he was acquitted by the _______ court of all the charges leveled against him in the
criminal complaint no. _____ filed by the defendants.
(7) The plaintiff states that due to the filing of the false complaint, the plaintiff had to obtain bail, face trial, was
in custody from _______ date to _______ date. All this has caused to the plaintiff mental agony, stress,
harassment, tension, loss of reputation, loss of business and goodwill in the society.
(8) The plaintiff states that the defendants prosecuted this plaintiff maliciously without any reasonable and
probable cause and only to take revenge and out of enmity. The plaintiff states that the plaintiff’s image has
been tarnished because of the defendants. The plaintiff’s family life is also affected seriously due to the
false implication of this plaintiff in the alleged criminal case.
(9) The plaintiff states that the defendants with a malicious intention to harm the reputation and standing of this
plaintiff and without any reasonable and probable cause implicated the plaintiff on the false charge of rape.
The defendants are liable to compensate this plaintiff for the malicious prosecution.
(10) The plaintiff states that the defendants are liable to pay (i) Rs. _______ for loss of reputation and business
loss and (ii) expenses incurred for defending the criminal case of Rs. _____. Total Rs. _____ together with
interest @ ___ % p.a.
(11) That the cause of action arose when the defendant maliciously prosecuted the plaintiff and the plaintiff was
acquitted on _______ date, when the court pronounced the judgment and thereafter everyday till the filing
of the suit. Hence, the suit filed is within the period of limitation.
(12) That the appropriate court fee stamp is paid herewith.
(13) That the suit is valued at Rs. ________/- for the reliefs claimed, jurisdiction, advocate fees and the
necessary court fee stamp is paid therein.
(14) It is, therefore, most respectfully prayed as follows:—
(i) The defendants be ordered and directed to pay an amount of Rs. ______/- as damages.
(ii) The defendants be ordered and directed to pay interest at the rate of _____ % per annum from the
date of filing of the suit till the actual realisation of the amount.
(iii) Award costs of this suit to the plaintiff from the defendants.
An affidavit in support of the plaint is filed herewith.
Verification
Page 5 of 5
19 Osborne’s C.L. Dictionary, 1976 6th ed, 3rd Imp, p 212.

20 Winfield and Jolowiez: Tort, 17th ed, 2006, p 607.
21 West Bengal Electricity Board v Dilipkumar Roy, AIR 2007 SC 976 (983).
22 Roop Singh v Amarjit Singh, AIR 2018 P&H 110.
23 Gangadhar Padhy v Prem Singh, decided by Delhi High Court (RFA 269/13) on 15 January 2014.
24 ST Sahib v N Hasan Ghani Sahib, AIR 1957 Mad 646.
25 Kapoor Chand v Jagdish Chand, AIR 1974 P&H 215.
26 Ramesh Chandra v Jagannath, AIR 1975 Ori 121.
27 Ram Lal v Mahendra Singh, AIR 2008 Raj 8.
28 Ram Nath v Bashir-ud-din, AIR 1953 PH 213.
29 Girja Prasad Sharma v Uma Shankar Pathak, AIR 1973 MP 79.
30 Jogendra v Lingaraj, AIR 1970 Ori 91 : 1970 Cr LJ 819.
31 Abdul Majid v Harbansh Chaube, AIR 1974 ALL 129.
32 Rammayya v Sivayya, (1901) ILR 24 Mad 549.
33 CM Agarwalla v Halar Salt and Chemical Works, AIR 1977 Cal 356.
End of Document
5.5 Suit for Negligence
Dr Medha Kolhatkar

5.5.1 Introduction
Negligence is the breach of a duty caused by the omission to do something which a reasonable man guided by
those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a
prudent and reasonable man would not do.34
Negligence, therefore, means doing an act recklessly or carelessly whereby injury is caused to someone. According
to Winfield, “Negligence as a tort is a breach of a legal duty to take care which results in damage, undesired by the
Defendant to the Plaintiff.” According to Swayne J. of the United States, “Negligence is the failure to do what a
reasonable and a prudent person would ordinarily have done under the circumstances of the situation.”35
Negligence as a tort is an actionable wrong which consists in the neglect of the use of ordinary care or skill towards
a person to whom the defendant owes the duty of observing ordinary care and skill, by the neglect of which, the
plaintiff has suffered injury to person or property.36 From the analysis of the above definitions it becomes amply
clear that if the defendant owed duty of care to the plaintiff and commits breach of the same and because of it, if the
plaintiff suffers harm then it is assumed that the tort of negligence has been committed.
5.5.2 Essential Ingredients of Negligence
The plaintiff has to successfully prove the following essential ingredients for the tort of negligence:—
5.5.2.1 That the defendant owed a duty of care to the plaintiff.

5.5.2.2 That the defendant committed breach of the duty of care which he owed to the plaintiff.
5.5.2.3 And due to the said breach of duty, the plaintiff suffered damage/s
5.5.2.1 Duty of care to the plaintiff
For the tort of negligence, the defendant is liable only where he owed a legal duty of care towards the plaintiff. It is
crucial to decide whether under the facts and circumstances there existed any duty towards the plaintiff from the
defendant. Duty means some obligation or it may mean that there is some limitation or restriction on the conduct of
a person, that he would behave in such a manner as a reasonable person would have behaved in like
circumstances.
The principle of “forcibility and proximity” is to be taken into account while ascertaining the legal duty. Lord Atkin in
the historic case of Donoghue v Stevenson,37 has observed that a person must take reasonable care to avoid acts
or omissions which he can reasonably foresee are likely to injure the plaintiff. Lord Atkin expressed in following
words: “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely
and directly affected by my act that I ought reasonably to have them in contemplations as being so affected when I
am directing my mind to the acts or omissions which are called in question.” Only if the legal duty passes the test of
“forcibility and proximity” then the defendant can be held liable for negligence.
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5.5.2.2 Breach of duty
Once it is established that the defendant owed duty of care towards the plaintiff, then the plaintiff has to establish
that the defendant has committed breach of the duty. The test for ascertaining breach of duty by the defendant is
the yardstick of a reasonable and prudent man, i.e., whether the defendant omitted to do something which a
reasonable and prudent man guided by those considerations which ordinarily regulate the conduct of human affairs
would have done, or has he done something which a reasonable and prudent man would not have done?38
It is pertinent to note that in order to find out whether a breach of duty has been committed the standard and degree
of care needs to be taken into account. The degree of care owed by the defendant to the plaintiff will not and cannot
be uniform and would vary from case to case. Though the standard is uniform, the degree of care is not as it varies
in different situations. The greater the risk, the greater the care. The defendant is not liable if the damage is not
proximate or foreseeable. It is expected that one must guard against reasonable probabilities and not against
fantastic possibilities, which means if the consequences which flow from the negligent act are foreseeable and the
defendant failed to act as a reasonable and prudent person, then he is guilty of negligence.
5.5.2.3 Damages suffered due to negligence
After having proved that the defendant owed a duty of care towards the plaintiff and committed breach of the said
duty of care, the plaintiff further has to show that he has suffered actual damage consequent to the defendant’s
negligence. The quantum of damages would vary in proportion to the harm caused due to the negligent act of the
defendant.
There should be reasonable proximity between the act of negligence and the resultant damage. The damage
caused to the plaintiff should not be too remote. In other words damage or injury should be foreseeable.
In MP State Electricity Board v Jasbir Singh, (AIR 2004 MP 151) sparks were coming out from an electric pole and
a truck loaded with tendu leaves caught fire and were completely burned. The electricity board was held liable for
the negligence, and damages were awarded to the plaintiff.
5.5.3 Burden of Proof in an Action for Negligence
In an action for negligence the burden of proof is on the person who complains of negligence. The plaintiff must
show that injury was caused to him by an act or omission committed by the defendant.
5.5.4 Res Ipsa Loquitor
The general rule of Law of Evidence is that if the complainant/plaintiff wants the court to believe something, then, as
stated above, it is for the plaintiff to plead and prove the said facts before the court.
The doctrine of res ipsa loquitor is an exception to this general rule. Res ipsa loquitor means “the thing/mishap
speaks for itself.” Sometimes the facts of the case are so peculiar in nature that the plaintiff is unable to prove the
same or has no detailed knowledge about the same, it is also unfair to expect under those peculiar facts, for the
plaintiff to prove those facts about which he has no knowledge. This situation is recognised by the rule or doctrine of
res ipsa loquitor. When the accident/mishap explains only one thing and that is, that the accident could not
ordinarily occur unless the defendant had been negligent, the law raises a presumption of negligence on the part of
the defendant. In such a case it is sufficient for the plaintiff to prove the accident/mishap and nothing more. For the
maxim to res ipsa loquitor to apply, it is also necessary that the event causing the accident must have been in the
control of the defendant. Thus, where the maxim becomes applicable the burden of proof is shifted from the plaintiff
to the defendant. Instead of the Plaintiff proving negligence, the defendant has to disprove it. It is to be noted that
the maxim res ipsa loquitor is not a rule of law. It is a rule of evidence benefitting the plaintiff by not requiring him to
prove negligence.
5.5.5 Defences for Negligence
The following are the defences for negligence.
5.5.5.1 Contributory Negligence
Contributory negligence means negligence in not avoiding the consequence arising from the negligence of some
Page 3 of 9
other person, when means and opportunity could be afforded to do so. When the Plaintiff fails in exercising ordinary
care, diligence and skill to avoid the consequences of defendant’s negligence, he cannot claim damages. In simple
words, when alongwith the defendant the plaintiff by his own carelessness also contributes to the negligent act in
question, it is said to be a case of contributory negligence. Contributory negligence is a defence which the
defendant/opposite party can set up if they can prove that the plaintiff failed to take reasonable care of his own
safety, and that contributed to the ultimate harm the plaintiff suffered.
5.5.5.2 Vis-Major/Act of God
If the incident has occurred due to forces of nature which are beyond human control and contemplation, then such
acts are termed as vis-major/ act of God. Unprecedented heavy rains, earthquakes, storms, tempest, Tsunami, etc.
are the acts attributable to the will of God in which human agency has no role to play and therefore, is a defence in
an action for negligence.
5.5.6 Composite Negligence
When the act of negligence is committed by two or more persons which results in damage to the plaintiff then it is
termed as composite negligence and the persons responsible for causing such damage are known as composite
tort feasers. The liability of the composite tort feasers is joint and several liability.
5.5.7 Medical Negligence
In India the cases of medical negligence are on a rise. A greater degree of care and skill is expected from medical
professionals. Where the medical professional fails to exercise reasonable degree of skill and care towards his
patients and which results in some harm or injury to the patients, the medical professional is no doubt guilty of
negligence. In the case of Laxman B Joshi v Trimbak Bapu Godbole,39 the Court observed that, “the duties which a
doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment
impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by
a patient owes him certain duties viz—a duty of care in deciding what treatment to give or a duty of care in the
administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient.
The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable
degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the
particular circumstances of each case is what the law requires.”40
In the case, CDR Hospitals v Nirmala Manaseh,41 the complainant was treated by the opposite party at its hospital
for minor injury caused in the cheekbone in an accident. Nurse of the Appellant hospital while clearing ampoule
carelessly broke it and the broken pieces of ampoule got embedded due to which blisters appeared on the face of
the complainant. Subsequently three pieces were removed from the face of the patient. For negligence of the nurse
the state commission awarded Rs. 30,000/- as compensation.
In the case of Jaswinder Singh v JS Saini,42 the surgeon, that is, the opposite party performed operation to rectify
the congenital deformity in the size of the left eye, resulting in injury to cornea and eyeball. It was held that the
doctor was guilty of negligence and was thus liable to pay compensation.
5.5.8 Pleadings in Suit for Negligence
The plaintiff has to plead and prove that the defendant owed duty of care, the defendant committed the breach of
the said duty and what consequential harm the plaintiff has suffered.
5.5.9 Limitation
The period of limitation is three years for suits for compensation for negligence of the defendant and is governed by
Article 113 of the Limitation Act. If the case of negligence is filed before the consumer forum then the period of
limitation is two years from the date of cause of action (Section 24A, Consumer Protection Act, 1986).
5.5.10 Specimen
(When bulky evidence is not required the following specimen can be filed as a consumer complaint)
Specimen No. I
Page 4 of 9
IN THE COURT OF CIVIL JUDGE, SR DIVISION, _______ (Place),
AT _______(District)
C.S. No. __________/20___
Suit for compensation for negligence
The plaintiff hereby most respectfully submits as follows:—
(1) The plaintiff states that plaintiff alongwith his son was walking on ______ street at ___________(place) to
go to the main bazaar, to make domestic purchases on _________ date, at around _______ (time).
(2) The plaintiff states that it was raining and his son stepped on to a live electric wire which was hanging
down from the electric pole on the footpath. The plaintiff’s son was severely electrocuted due to the live
wire.
(3) The plaintiff states that as it was dark and it was raining, the plaintiff’s son suddenly fell down and started
screaming. But when his son continued to scream, the plaintiff realised that something was seriously wrong
with his son.
(4) The plaintiff states that, on hearing the traumatic screams of his son, the passersby on the street gathered
near his son and one Mr. ______ was the first to realise that the plaintiff’s son was electrocuted.
(5) The plaintiff states that, with the help of the passersby on the street, he rushed his son to the nearest
hospital, i.e., __________ hospital where plaintiff’s son was admitted in an unconscious state.
(6) The plaintiff states that the plaintiff’s son ________(age 16 years) underwent medical treatment for
electrocution. The plaintiff states that the electrocution was caused due to the negligence and carelessness
of the _________ state electricity board.
(7) The plaintiff states that the defendant electricity board had failed to maintain the electricity wires and to
keep them in safe and proper conditions. Due to the negligence of the _______ state electricity board the
plaintiff’s son_________ suffered serious and life threatening injuries.
(8) The plaintiff states that the plaintiff works as a clerk in a private school and does not have the adequate
financial resources to provide medical treatment to his son. The plaintiff and his family suffered mental
agony and pain due to the said mishap and has incurred huge expenses for the medical treatment of his
son. The plaintiff states that the plaintiff had to raise a loan of Rs. _____ for the treatment of his son and
the doctors have opined that his son would require medical treatment in future also.
(9) The plaintiff states that the defendant is liable to pay to this plaintiff the following amounts.
Particulars of claim:
(i) Medical treatment of the son Rs. ________/-
(ii) Damages for the mental agony and Rs. ________/-

suffering
(iii) Anticipated expenses for future medical Rs. ________/-

treatment
Total ___________/-
(10) The plaintiff states that the cause of action for the present suit arose on _______date when the mishap
took place and thereafter every day till the filing of the present suit and, therefore, the suit filed today is well
Page 5 of 9
(11) The cause of action arose within the territorial and pecuniary jurisdiction of this Hon’ble court, and,
therefore, this Hon’ble court has jurisdiction to entertain, try and decide the present suit.
(12) The suit is valued at Rs. ____________/- for the reliefs claimed, jurisdiction, advocate fees and the
necessary court fee stamp is paid herein.
(13) The plaintiff therefore most respectfully prays that
(a) The defendant, i.e. _________ State Electricity Board be directed to pay an amount of Rs.
__________/- together with interest at the rate of ________% per annum from the date of filing of this
suit till the actual recovery of the said amount.
(c) Pass any other just and equitable order in the interest of justice.
Place______ Date Plaintiff
Advocate for Plaintiff
Verification
(When bulky evidence is not required the following specimen can be filed as a consumer complaint)
Specimen No. II
IN THE COURT OF CIVIL JUDGE, SR. DIVISION, _______ (Place),
C.S. No. __________/20___
Suit for compensation for Medical Negligence
(1) The plaintiff states that this plaintiff after taking treatment for four and half years of infertility became
pregnant and registered herself at defendant no. 1 hospital. The defendant no. 2, i.e., Dr. _______ was her
gynaecologist at defendant no. 1 hospital. The plaintiff states that it was a precious pregnancy as she had
conceived after four and half years of treatment.
(2) The plaintiff states that as per the instructions of defendant no. 2 the plaintiff was taking every care. On
_______ date this plaintiff was admitted to defendant no. 1 hospital. It was found that there was
spontaneous rupture of membranes. No senior doctor was available at that time and the resident doctor
examined her.
(3) The plaintiff states that the defendant no. 2 Dr. _______, i.e., her gynaecologist examined her and advised
her medicines, started I.V. fluids and one ampoule of Syntocinon (hereinafter referred as Oxytocin) for
speeding up the process of delivery. Plaintiff submits that the dose was maximum, and the CTG machine
showed that the heart rate of the child began to sink (80/min) during the midnight of _______. The plaintiff
contends that plaintiff was not attended immediately. The plaintiff was shifted to operation theatre at 3 am
for emergency caesarean (LSCS) and at 3.40 am, female baby was delivered.
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(4) The plaintiff states that on delivery the baby did not cry for some time and the baby suffered birth asphyxia
and seizures. The baby was kept on ventilator in NICU. The defendant no. 2 assured that the condition of
the baby is normal and that all the reports of the baby are normal. The plaintiff contends that the condition
of the baby deteriorated further till _______ date. This plaintiff was discharged from the defendant no. 1
hospital on _______ date while the baby was discharged after 15 days from the date of discharge of this
plaintiff, i.e., on _______ date.
(5) The plaintiff states that the defendant no. 1 and 2 did not issue the entire medical record, reports, CTG
graphs etc. The plaintiff paid 3.5 lakhs towards hospitalisation.
(6) The plaintiff states that as the baby showed no signs of improvement, she was admitted to _______
hospital for treatment. After the EEG and CT scan, it was revealed that the baby was severely affected by
the atrophy of brain, which may lead to mental retardation. The plaintiff states that her baby was suffering
from the episodes of seizures. The baby was unable to hold her neck and unable to suck milk. Therefore,
this plaintiff had to appoint a special nurse and the baby was treated at _______ hospital.
(7) The plaintiff states that Dr. _______, Dr. _______ and Dr. _______ who is a Pediatric Neurologist opined
that a full term baby having such problems were because of the negligence during delivery. It is opined that
the LSCS should have been performed within 12 to 18 hours after rupture of the membrane as it was
delayed for about 27 hours and the excessive dose of Syntocinon which caused foetal distress and
cerebral anoxiapalsy. The relevant medical literature and the expert opinion are annexed herewith.
(8) The plaintiff states that this plaintiff suffered anxiety and trauma from the time she was admitted to
defendant no. 1 hospital. The plaintiff states that unfortunately the baby died on _______ date, i.e., after 18
months from the date she was born.
(9) The plaintiff states that the defendants herein are guilty of negligence and it was because of the careless
approach and negligence on the part of the defendants that this plaintiff lost her baby girl whom she had
named _______.
(10) The plaintiff states that the defendants owed duty of care but failed to discharge the same towards the
plaintiff and her child. The plaintiff suffered mental anxiety, trauma, pain, disappointment and stress
because of the critical condition of the baby from her birth till the time baby passed away and thereafter.
(11) The plaintiff contends that the defendants failed to exercise due care, skill and diligence while performing
their duties towards the plaintiff and hence, the defendants are responsible to compensate this plaintiff for
the anxiety and trauma suffered by this plaintiff due to the negligence on the part of the defendants.
(12) The plaintiff states that the plaintiff has incurred medical expenses amounting to Rs. _______. The
defendants are also liable to pay compensation of Rs. _______ for the mental agony and stress caused
and for loss of precious life.
(13) The plaintiff states that the cause of action for the present suit arose on _______date when the emergency
caesarean (LSCS) was performed negligently and thereafter everyday till the filing of the present suit and
this is a continuing cause of action, therefore the suit filed today is well within the period of limitation.
(14) The cause of action arose within the territorial and pecuniary jurisdiction of this Hon’ble court, and therefore
this Hon’ble court has jurisdiction to entertain, try and decide the present suit.
(15) The suit is valued at Rs. ____________/- for the reliefs claimed, jurisdiction, advocate fees and the
necessary court fee stamp is paid herewith.
(16) The plaintiff therefore most respectfully prays that
(a) The defendants be directed to pay an amount of Rs. __________/- together with interest at the rate of
________% per annum from the date of filing of this suit till the actual recovery of the said amount.

Page 7 of 9
Verification
Specimen No. III
IN THE COURT OF CIVIL JUDGE, SR. DIVISION, _______ (Place),
C.S. No. __________/20___
Suit for compensation for Negligence
The plaintiff most respectfully submits as follows:-
(1) The plaintiff is a doctor by profession and was earning Rs. _____ p.a. prior to the date of the accident.
(2) The defendant is a Private Ltd. Company and carries on the business of travel and tourism including jungle
safaris. The defendant company has its registered office at __________(place).
(3) The plaintiff states that the plaintiff had booked the tour to Kashmir with the defendant company for himself
and his family (plaintiff’s wife Shalini, son Sohan age ____, daughter Suhani age_____).
(4) The plaintiff states that the plaintiff had paid Rs. 30,000/- per person for the said tour which did not include
the airfare. The plaintiff paid in total Rs. 1,20,000/- vide cheque no. _______ dt. _______ drawn on
_______ bank.
(5) The plaintiff states that, on reaching Shrinagar the defendant Company’s representative did not reach the
airport on time and the plaintiff and his family were stranded at the airport for almost two hours. Moreover,
the defendant company did not bother to intimate the plaintiff about the said delay.
(6) The plaintiff states that, on the second day of the tour the defendant had arranged a bus to take all the
tourists to ‘Gulmarg’. However, the driver of the bus turned up only at 11 am instead of the scheduled time,
i.e., 9 am. Thus on the second of the tour as well, there was delay on the part of the defendants and the
defendants were evasive as to the cause of delay..
(7) The plaintiff states that, to the utter shock of the plaintiff and other tour members the driver was driving the
bus very recklessly and carelessly thereby endangering the lives of all those in the bus as well those on the
road. One Mr. ___ called upon the tour leader, representative of the defendant company, who was also in
the same bus, to instruct the driver to drive cautiously and not at such a high speed. However, the tour
leader Mr. _______ said that the driver is an experienced and responsible person who is familiar with all
the roads in Kashmir and the terrain around.
(8) The plaintiff states that the passengers in the bus including this plaintiff repeatedly requested the tour
leader Mr. _________and the driver Mr. _________ to drive slowly and carefully, but none of them paid
any heed to the same.
(9) The plaintiff states that while taking a turn to the left, the driver lost control; and first dashed on the fencing,
then on the stall and finally banged on a log of woods. As the bus was in high speed, the bus dashed with
great thrust and intensity. The passengers in the bus including this plaintiff suffered severe injuries.
(10) The plaintiff states that the plaintiff suffered serious injury to his right hand and left eye and the plaintiff was
required to undergo multiple surgeries for his right hand. Due to the accident and the consequential
Page 8 of 9
injuries, the plaintiff is now suffering from 20% permanent disablement of his right hand. The injury to the
eye has also affected the eye sight of the plaintiff.
(11) The plaintiff states that the defendant company failed to organise the tour properly. There were lapses at
every stage of the tour. The food and the lodging arrangements were also not upto the mark.
(12) The defendant company had made false promises regarding the same when plaintiff visited their office to
enquire about the tour programme and to book the same. So also the brochures of the company are false
and misleading. The defendant company is guilty of deficiency of services and negligence.
(13) The plaintiff states that, because of the serious accident, the plaintiff and his family members could not
continue the tour for which the defendant company alone is responsible. The plaintiff is therefore entitled to
recover the amount paid for the tour to the defendant company, i.e., Rs. ________.
(14) The plaintiff states that the said accident occurred only due to the reckless, careless and negligent driving
of the driver, Mr. _______ and the defendant company. The plaintiff further states that the defendant
company and its employees acted in an irresponsible and careless manner to supervise and manage the
tour. The plaintiff has suffered mental anxiety, physical pain, financial losses, etc. due to the said accident.
The plaintiff being a doctor by profession is now unable to practice like before due to the said accident. The
said accident and the resultant injury has decreased the earning capacity of the plaintiff.
(15) The plaintiff states that he is the only earning member in the family and he has to look after the financial
needs of his growing children. The plaintiff states that the defendant therefore is liable to pay to this plaintiff
an amount of Rs. ________/- for the financial losses and the disablement suffered by the plaintiff. The
necessary medical reports and the disablement certificate is annexed herewith.
(16) The following are the particulars of damages:-
(a) Amount spent on medical treatment Rs. ____________

including cost of the surgeries
(b) Amount spent on medicines, special Rs. ____________

diet, Follow up, check up
(c) Damages for the disablement Rs. ____________
(d) Damages for loss of earning capacity Rs. ____________
(e) Damages for mental anxiety and Rs. ____________

physical suffering
(f) Refund of tour amount Rs. ____________
Total Rs. ____________
(17) The plaintiff states that the cause of action for the present suit arose on _______date when the mishap
took place and thereafter every day till the filing of the present suit and therefore the suit filed today is well
(18) The plaintiff booked the tour at _______(place), also the registered office of the defendant company is at
__________(place), hence the Hon’ble Court has the Jurisdiction to entertain, try and decide the present
suit.
(19) The suit is valued at Rs. ______ for the reliefs claimed, jurisdiction and advocates fees and the necessary
court fee stamp is paid thereon.
(20) The plaintiff therefore most respectfully prays as follows:—
(i) The plaintiff be awarded damages to the tune of Rs. ________ as stated in para 16 of the plaint, together
with interest thereon at the rate of _________ % per annum from the date of filing the suit till its actual
recovery.
(ii) Award cost of this suit to the plaintiff from the defendant.
(iii) Pass any other just and equitable order as deemed fit in the interest of justice.
Page 9 of 9
Date______ Plaintiff
Place______ Adv. for Plaintiff
Verification
I _______ age ____ occupation ______ residing at _______, the plaintiff above-named do hereby state and declare
34 Blyth v Birmingham Waterworks Co, (1856) 11 Ex 781 , p 784; Nagpur Railway Co Ltd v Taraprasad Maity, (1926)
48 CLJ.
35 Balt and Potomac v Jones, (1877) 95 VS 506.
36 Heaven v Pender, (1883) 11 QBD 503 .
37 Donoghue v Stevenson, [1932] UKHL 100.
38 Blyth v Birmingham Waterworks Co, (1856) 11 Ex 781 .
39 Laxman B Joshi v Trimbak Bapu Godbole, 1969 AIR 128 : 1969 (1) SCR 206.
40 Cf. Halsbury’s Laws of England, 3rd ed, vol 26, p 17.
41 CDR Hospitals v Nirmala Manaseh, (2004) I CPJ 70(NC).
42 Jaswinder Singh v JS Saini, 2000 (1) CPR 487.
End of Document
5.6 Suit for Recovery of Price for Goods Sold and Delivered
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER V DRAFTING OF CIVIL SUITS > SUITS
ARISING OUT OF CONTRACT
SUITS ARISING OUT OF CONTRACT
5.6.1 Introduction
The transactions pertaining to sale of goods, the rights and duties of seller and buyer etc. are governed by the Sale
of Goods Act, 1930. The contracts for sale of goods are subject to the general principles of the law relating to
contracts, i.e., the Indian Contract Act. Therefore, the essentials of a valid contract such as consideration, free
consent, etc. become applicable to transactions pertaining to Sale of Goods.
As per section 2(7) of the Sale of Goods Act, 1930, goods has been defined as—
“Goods” means every kind of movable property other than actionable claims and money; and includes stocks and shares,
growing crops, grass and things attached to or forming part of the land, which are agreed to be severed before sale or
under the contract of sale.
In generic sense, the word “goods” is used to mean any movable property as distinct from immovable property. It
includes grass, crops and standing timber, which are agreed to be cut before sale or under the contract of sale.
Anything attached to earth or forming part of land becomes goods if they are agreed to be severed under the
contract of sale. Share of a company is “movable property” under the Companies Act, and goods under the Sale of
Goods Act, 1930 but application for allotment of shares cannot be construed as goods.
5.6.2 Contract of Sale of Goods
According to section 4 of Sales of Goods Act, 1930:
(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in
goods to the buyer for a price. There may be a contract of sale between one part-owner and another.
(2) A contract of sale may be absolute or conditional.
(3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the
contract is called a sale, but where the transfer of the property in the goods is to take place at a future time
or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.
(4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which
the property in the goods is to be transferred.
The definition includes ‘sale’ and ‘agreement to sell’ in a contract of sale. “Where under a contract of
sale the property in goods is transferred from the seller to the buyer, the contract is called a sale, but
where the transfer of the property in the goods is to take place at a future time or subject to some
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condition thereafter to be fulfilled, the contract is called an agreement to sell.43
5.6.3 Essentials of a Sale
The following are the essentials to constitute a contract of sale:—
5.6.3.1 Bilateral contract
A contract of sale has two parties, i.e., a buyer and a seller and both should be competent to contract to effectuate
a sale. The seller and the buyer must be two different persons.
5.6.3.2 Goods
The subject matter of a contract of sale must be goods. The goods may be either existing goods, owned or
possessed by the seller, or “future goods”.
5.6.3.3 Money consideration
The consideration for a sale of goods must be money, ordinarily known as the “price”. The price must be paid or
promised to be paid as a quid pro quo on a transfer of property in a sale. A contract of exchange or barter should be
distinguished from a contract of sale. If goods are exchanged for goods it cannot be a contract of sale. However,
consideration may be partly in goods and partly in money and such a contract shall be a “sale”.
5.6.3.4 Transfer of ownership
There must be transfer of ownership of the general property in the goods from the seller to the buyer. The transfer
of property in goods is in fact, the essence of a contract of sale. But a mere transfer of goods by owner, from one
place to another cannot amount to sale.
It is not necessary that a contract of sale should always be absolute. It may either be absolute or conditional
(Section 4 (2)).
5.6.4 Conditions and Warranties
A contract of sale may consist of a number of terms and stipulations. However, all the terms and stipulations are not
of equal importance. Certain terms and stipulations are so vital that their non-performance may amount to the
breach of the contract as a whole. Such stipulations are called conditions. The terms in a contract of sale which are
not so vital are called warranties.
As per the section 12(1) of Sale of Goods Act, 1930, a stipulation in a contract of sale may either be a condition or a
warranty.
Section 12(2)—A condition is a stipulation essential to the main purpose of the contract, the breach of which gives
rise to a right to treat the contract as repudiated.
Section 12(3)—A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives
rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated.
Section 12(4)—Whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the
construction of the contract. A stipulation may be a condition, though called a warranty in the contract.
5.6.5 Doctrine of Caveat Emptor
The expression Caveat Emptor means Let the Buyer Beware. The doctrine of Caveat Emptor means that when the
buyer effects a purchase of goods and relies on his own skill and judgment, and takes the risk of the suitability of
the goods for his purpose, then it is on the part of the seller’s obligation to caution the buyer if an article is suitable
for his purpose. If the buyer relies on his own skill and judgment and the goods turn out to be defective, he cannot
hold the seller responsible for the same.
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5.6.6 Rights and Duties of the Buyer
Stated below are the rights and the duties of the buyer.
5.6.6.1 Rights of the buyer
(1) To have the delivery goods as per contract. (Sections 31 and 32)
(2) To reject the goods when they are not as per description, quality or quantity, as specified in the contract.
(Section 37)
(3) To repudiate the contract when goods are delivered in installments without any agreement to that effect.
(Section 38(1))
(4) To have a reasonable opportunity to examine the goods for ascertaining whether they are in conformity
with the contract. (Section 41)
(5) To sue the seller for recovery of price, if already paid, when the seller fails to deliver the goods.
(6) To sue the seller for damages if he fails or neglects or refuses to deliver the goods to the buyer. (Section
57)
(7) To sue the seller for specific performance of the contract to sell. (Section 58)
(8) To sue the seller for damages for breach of warranty or for breach of a condition treated as breach of a
warranty. (Section 59)
(9) To sue the seller for damages for breach of contract and damages. (Section 60)
(10) To claim interest from the seller where there is a breach of contract on the part of the seller and price has
to be refunded to the buyer. (Section 61)
5.6.6.2 Duties of the buyer
(1) To accept the delivery of the goods, when the seller is willing to make the delivery as per the contract.
(Section 31)
(2) To pay price of the goods as agreed. (Section 32)
(3) To apply for delivery of goods. (Section 35)
(4) To demand the delivery of goods at a reasonable hour. (Section 36(4))
(5) As per the contract accept the delivery of the goods in installments and pay for them. (Section 38(2))
(6) To inform the seller in case the buyer refuses to accept or rejects the goods. (Section 43)
(7) To take the delivery of goods within a reasonable time after the seller tenders the delivery. (Section 44)
(8) To pay the price of the goods in accordance with the terms of contract. (Section 55)
(9) To pay damages for non-acceptance of goods. (Section 56)
5.6.7 Rights and Duties of the Seller
Stated below are the rights and duties of the seller
5.6.7.1 Rights of the seller
(1) To reserve the right of disposal of the goods until certain conditions are fulfilled (Section 25(1)).
(2) To assume that the buyer has accepted the goods, where the buyer—
(i) Conveys his acceptance
(ii) Does an act adopting the sale, or
(iii) Retains the goods without giving a notice of rejection, beyond the specified date (Section 24)
(3) To deliver the goods only when applied for by the buyer. (Section 35)
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(4) To deliver the goods in installments if so agreed. (Section 38(1))

(5) To exercise lien and retain possession of the goods, until payment of the price by the buyer. (Section
47(1))
(6) To stop the goods in transit and resume possession of the goods until payment of the price. (Sections
49(2) and 50)
(7) To resell the goods under certain circumstances. (Section 54)
(8) To withhold the delivery of the goods when the property in the goods has not passed to the buyer. (Section
46(2))
(9) To sue the buyer for the price of the goods if the buyer fails to pay as per the terms of the contract.
(Section 55)
(10) To sue the buyer for damages for having failed to accept the goods. (Section 56)
(11) To sue the buyer for damages for anticipatory breach of contract (Section 60)
(12) To sue the buyer for interest (and/or special damages) if the buyer fails to pay the price on the specified
day. (Section 61)
5.6.7.2 Duties of the Seller
(1) To perform all acts necessary for transfer of property in the goods to the buyer.
(2) To pass an absolute and effective title of the goods, to the buyer.
(3) To deliver the goods in accordance with the terms of the contract.
(4) To ensure that the goods supplied confirm to the implied/express conditions and warranties.
(5) To ensure that the goods are in a deliverable state and to deliver the goods when applied for by the buyer.
(Section 35)
(6) To deliver goods within the time specified in the contract or within a reasonable time and during reasonable
hours (working hours). (Section 36(2)(4))
(7) To bear all expenses of and incidental to making of delivery of goods and to deliver the goods in the
agreed quantity. (Sections 36 and 37)
(8) To deliver the goods in installments only if so agreed with the buyer. (Section 38 (1))
(9) To arrange for insurance of the goods while they are in transmission or custody of the carrier. (Section
39(2))
(10) To afford the buyer with a reasonable opportunity to examine the goods at the time when he tender the
delivery of goods. (Section 41(2))
(11) To give a notice to the buyer, informing him of the seller intention to resell the goods. (Section 54(2))
5.6.8 Pleadings
In a suit for recovery of price of the goods, the plaintiff must plead
(i) That there exists a contract of sale between the plaintiff and the defendant.
(ii) Date of the contract, details of the purchase order, invoice, proforma invoice, etc.
(iii) Details of price and payment, i.e., whether the plaintiff has received the agreed price partially or nothing
under the contract. Details as to how and when the payments where to be made if any prevailing trade
practice pertaining to the same exists.
(iv) Complete description of goods—if the goods were supplied as per the contract, whether it was sale by
sample or sale by description or a combination of both should be pleaded.
(v) Delivery of goods when made—if the delivery of goods has been effectuated, if goods could not be
delivered, the reasons for the same, should be enumerated in the pleadings. For Example, the defendant
failed to make available the warehouse/godown to unload the goods, etc.
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(vi) How breach of contract is committed, etc.—should be stated in the plaint. For example, the defendant is
guilty of breach of ‘conditions’ or “warranties” or both as defined under Sale of Goods Act.
5.6.9 Limitation
The period of limitation is three years under Articles 14, 15, 16 and 17 as may be applicable to the case.
5.6.10 Defences
The defendant may challenge the validity of the contract of sale, for example, the contract is vitiated by fraud,
misrepresentation, etc. The defendant may plead that the goods are not as per the description or sample etc. the
price of the goods is paid etc. the plaintiff failed to deliver the goods on the agreed date and time, etc.
The said defences are not exhaustive more defences can be setup depending on the facts of each case.
5.6.11 Specimen
Specimen No. I
IN THE COURT OF CIVIL JUDGE SR. DIVISION, _________
AT __________
C.S. No.__________/ 20___
Suit for recovery of money for the Goods/equipment sold
The plaintiff above-named most humbly submits as follows:—
(1) The plaintiff states that the plaintiff is a company registered under the Indian Companies Act, 1956, having
its registered office at ________. The company is carrying on the business of manufacturing and selling of
(state/describe the type of goods) for the past 11 years.
(2) The defendant is a pharma company registered under the Indian Companies Act, 1956 and is having its
manufacturing unit and registered office at ________.
(3) The plaintiff submits that the plaintiff company in the course of its business had approached the defendant
company for the sale and supply of (state/describe the goods/equipment) as the defendant company
desired to buy the above stated equipment for its unit at _______(place). The marketing executive of the
plaintiff company explained the features of the equipment and all technical and other relevant details to
Mr.______, who is the director of the defendant company and to the other officers/managers of the
defendant company.
(4) The plaintiff submits that, as the defendant company was satisfied with the features, specifications and
quality of the equipment, and therefore, the defendant company invited the representatives of the plaintiff
company for commercial discussions. After due discussions and negotiations the plaintiff company sent its
final offer with a discount of 10 % on ____ date.
(5) The plaintiff submits that the defendant company placed an order on or about ______ (date) with the
plaintiff’s company for the purchase of the said equipment/goods vide its purchase order no.________.
(6) The plaintiff submits that the plaintiff company as per the purchase order no._______ dated _______ and
as per its final offer and quotation dated ______, supplied the equipment to the defendant company
on_______ date. Thereafter, the plaintiff company deputed its installation Engineer to do the installation of
the equipment. The installation Engineer worked on _______date, ________date and _______ date to
complete the installation work as the defendant company was facing power supply problem. The
installation Engineer of the plaintiff company could not attend the calls of his other customers as the
installation work got extended than the scheduled time.
Page 6 of 7
(7) The plaintiff submits that the equipment was successfully installed and the performance tests were also
successful. The defendant company’s representative verified the same and accordingly signed the
installation and performance report.
(8) The plaintiff submits that, as per the terms of purchase, the defendant company was supposed to make the
payment on the supply and installation of the equipment. The defendant company however till date has
paid only Rs.______/- which is only 30% of the price of the equipment and is now avoiding the payment
under false and fabricated reasons.
(9) The plaintiff submits that the plaintiff company has also furnished performance guarantee as per the terms
of the purchase order. The plaintiff submits that the plaintiff company has complied with all the terms of the
contract; however, the defendant company is acting in total disregard to the terms of the contract by not
paying the balance amount of the price of the equipment.
(10) The plaintiff company states that through emails dated ________, _______, ________and ________ the
plaintiff company demanded the outstanding payments from the defendant company. The defendant
company did not respond to the emails dated _______ and ________. In response to the emails dated
________ and ________ the defendant gave false reasons for the delay in payment. The plaintiff company
demanded the outstanding payments over the phone several times. Thereafter the plaintiff company sent a
notice through its advocate Mr. __________ dated_________ by R.P.A.D. demanding the said outstanding
amounts. The defendant company sent a false notice reply wherein for the first time the defendant
company alleged that the equipment is not to the satisfaction of the defendant company and the same is
not delivering the expected results and thereby denied its liability to pay the balance amount of the price of
the equipment to the plaintiff company.
(11) The plaintiff submits that, under these facts and circumstances this plaintiff had no option but to file the
present suit for the recovery of the price of equipment to the tune of Rs.______ and other amounts payable
by the defendant company to the plaintiff company.
(12) The plaintiff company submits that the equipment was installed on ______ and 30% of the price was paid
on ______date. Thus, it is almost now 2 years that the defendant company has not made the payment.
Thus the plaintiff company has suffered huge business loss due to non-payment by the defendant
company.
(13) The particulars of the claim are as follows:—
(i) Balance amount of the price of the Rs. _____

Equipment
(ii) Interest on the said amount at the rate of Rs. _____

_____% p.a. from the date the amount
became payable upto the date of filing of
the suit
(iii) Loss of business due to delay in Rs. _____

payment
(iv) Damages for breach of contract Rs. _____
Total Rs. _____
(14) The plaintiff submits that the cause of action first arose on ______when successful installation of the
equipment was done and the defendant company did not pay the entire price money and thereafter on
______ date when the defendant company denied the payment in Notice Reply and thereafter, everyday till
the filing of this suit. Hence, the present suit is well within the period of limitation.
(15) That the suit is valued at Rs.______ for the purposes of court fees, Advocate fees etc. and appropriate
court fee stamp is paid herewith.
(16) That the cause of action arose at ___________ (place) and the registered office of the defendant company
is situated at ________(place) therefore this Hon’ble Court has territorial as well as pecuniary jurisdiction to
entertain, try and decide the present suit.
(17) It is therefore most humbly prayed that
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(i) The defendant company be directed and ordered to pay an amount of Rs.______ (as stated in para
13) together with interest thereon at the rate of ___% per annum from the date of filing of the suit till its
actual realisation.
(ii) Award the costs of this suit to the plaintiff from the defendant
Place______ Signature of Authorised Signatory
Date______ (Seal of the Plaintiff Company)
Advocate for Plaintiff
Verification
I Mr. ___________Age_______ Occupation – Director of the plaintiff company do here by state and verify that the
contents in this plaint from paras 1 to 17 are true and correct to the best of my belief, information and knowledge.
The same is verified by me on this ______ day of 20_____ at _______ (Place).
43 Section 4(3) of the Sales of Goods Act, 1930.
End of Document
5.7 Suit for Dissolution of Partnership and for Taking Accounts
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER V DRAFTING OF CIVIL SUITS > PARTNERSHIP
PARTNERSHIP

5.7.1 Introduction
A “‘Partnership’ is the relation between persons who have agreed to share the profits of a business carried on by all
or any of them acting for all.”44
Persons who have entered into partnership with one another are called individually as “partner” and collectively as
“firm” and the name under which they run their business is called the “firm name”.
When the contract of partnership does not, expressly or impliedly, provide for the duration or determination of
partnership, the partnership is “at will”.
(Section 7). When a partnership is formed for a specific period or for a particular venture, it is called a Particular
Partnership.
5.7.2 Essentials of Partnership
Discussed below are the essentials of a partnership.
5.7.2.1 Agreement (partnership deed)
A partnership is the outcome of a contract between the persons. The contract may be oral or written. But it is
always safe, in order to avoid future disputes to have a proper deed of partnership drawn up.
5.7.2.2 Two or more partners
A partnership necessarily requires two or more partners to constitute it. The persons associating to be partners
should be competent to contract and must give their free consent to the contract of partnership. If the firm has more
than the prescribed number of partners the firm shall be illegal.
5.7.2.3 Business
The contract of partnership is entered into to carry on some business activity.
5.7.2.4 Sharing of profits
The partners agree to share the profits of the partnership business in a specified ratio. Where no ratio is specified
the profits will be shared equally. The same is applicable in case of losses also.
5.7.2.5 Mutual agency

Page 2 of 5
The partnership business may be carried on either by all the partners or by any of them acting for all.
5.7.3 Who Can be a Partner
Every person who is competent to contract may become a partner. A minor cannot be a partner but can be admitted
to the benefits of the partnership. His rights on such admission are laid down under Section 30 of the partnership
Act. The “karta” of an HUF can be a partner in a partnership to represent the HUF. A firm can be a partner. A
company having a separate legal entity with distinct existence can become a partner in a firm.
5.7.4 Registration of Firm
Registration of a partnership firm is not compulsory (Section 58). However, if the firm is not registered then as per
section 69 of the Act, the partnership firm or its partner cannot file a suit against a third party. In Maharashtra, the
section is made more stringent making registration almost compulsory.
5.7.5 Rights and Duties of Partner
Stated below are the rights and duties of partners.
5.7.5.1 Rights of partners
The rights of a partner are determined either by the partnership deed or by the course of dealing. In the absence of
any contract, a partner shall have the following rights:—
(1) To take part in the conduct and management of the business of the firm.
(2) To express his opinion in deciding any matter when a difference of opinion arises. While ordinary matters
may be decided by a majority decision, there can be no change in the nature of business unless all the
partners agree unanimously.
(3) To have an access to and inspect and copy any of the books of the firm.
(4) To share the profits of the business equally, the partners shall bear the losses equally too.
(5) To receive interest on capital, if so agreed, out of profits only.
(6) To receive interest @ 6% p.a. or any payment or advance, in excess of the agreed amount of capital,
made for the purpose of the business.
(7) To be indemnified by the firm in respect of payments made and liabilities incurred either in the ordinary
conduct of the business or in an emergency to protect the firm from any probable loss.
(8) To do all such acts necessary to protect the firm from losses, as a person of ordinary prudence would do in
his own case.
(9) To retire from the firm (a) with the consent of all other partners, or (b) in accordance with the terms of the
deed, or (c) by giving a notice to all the other partners, of his intention to retire.
(10) To dissolve the firm by giving notice to all the partners, for its dissolution.
5.7.5.2 Duties of partner
(a) To carry on the business of the firm to the greatest common advantage, is the fundamental duty of each
partner. Each partner should attend diligently to his duties in the conduct of the business.
(b) To be just and faithful to each other.
(c) To render true accounts and full information of all things affecting the firm to any partner or his legal
representative.
(d) To indemnify the firm for any loss caused to it by his fraud or willful neglect, in the conduct of the business
of the firm.
(e) Not to ask for remuneration for taking part in the conduct of the business, unless so expressly agreed.
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(f) To shoulder the responsibility even in the firm’s losses.

(g) Not to derive secret profits from any transaction of the firm or from the use of the property or business
connection of the firm or the firm name, unless there is a contract to the contrary.
(h) Not to carry on a competing business to that of the firm, unless there is an agreement to the contrary.
5.7.6 Distinction between personal property of partner of firm and property of firm
Property of a partner can become property of the partnership firm if the partners expressly agree to do so. The partnership
documents such as Deed of partnership, income tax returns, etc. are the documents which indicate if the partner’s personal
property is brought into as the firm’s property.
For a property to become the property of the firm, must have been brought into the stock of the firm by the partners,
originally, when the firm was formed, or subsequently acquired by purchase or otherwise in the course of the
business of the firm. Property belonging to a partner as his personal property, in the absence of any agreement did
not ipso facto become the property of the partnership, merely because it was used for the business of the
partnership.45
5.7.7 Partnership Deed—sham and interpolated
In this case, claim for property was made by partnership deed; the defendant pleaded that the said document was
sham and interpolated one and at no point of time the partnership was acted upon. The defendant had not
challenged such document specifically asking for any relief for cancellation of the same either by filing cross suit or
making counter claim in the suit itself. It was held that such a plea was not tenable.46
In the case Nandasur Starch and Chemicals v CIT,47 it was held that if there is no partnership under section 4 of the
Partnership Act, but it does not affect the genuineness of the firm, if other incidents of partnership constituting valid
partnership are present the registration cannot be refused merely on the ground that no business was carried on in
the relevant previous year; the essential condition being the intention to carry on business.
Where a plaint was signed by manager of a firm as authorised by one of its partners but his name was neither
shown as partner in register of firms nor Power of Attorney was given by firm to him for verifying and signing plaint
on behalf of firm, the court held that the very institution of the suit and such defect, could not be cured by
subsequent amendment incorporating that the suit was verified and signed by a partner of a firm.48
5.7.8 Pleadings
In a suit for dissolution of partnership and for taking accounts, the plaintiff must plead other than the introductory
paras, the reasons as to why the plaintiff wants the partnership dissolved. A suit for dissolution of partnership can
be brought on any of the grounds mentioned in section 44. All partners should be made parties to suit for
dissolution. If a partner is dead, all his heirs must be impleaded. The particulars of the accounts must be stated.
When it is necessary to go into the accounts before giving the plaintiff an effective relief, the court may pass a
preliminary decree before passing a final decree (O XX rule 15). The plaintiff may also seek the relief for
appointment of court receiver.
5.7.9 Defences
The defendant may deny the grounds on which the plaintiff is seeking dissolution except in the case of partnership
at will. So also the defendant may challenge allegations regarding accounts. It may be contended that the accounts
are already settled and the plaintiff has been paid.
5.7.10 Specimen
Specimen No. I
IN THE COURT OF _________ _________ AT _________
C.S. NO. ___________/ 20___

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Suit for Dissolution of Partnership and Rendition of Accounts
(1) The plaintiff submits that the plaintiff and the defendant decided to carry on the business of selling plastic
products and glassware required for pharma industry. Accordingly, the plaintiff and the defendant entered
into a partnership and named their firm as “Plasgla Enterprises”.
(2) The plaintiff states that this plaintiff and the defendant decided to contribute Rs. _______ /- each as capital
of the firm and the office of the partnership firm was set up at __________(place) which is taken on rent for
_______ years.
(3) The plaintiff states that the plaintiff and the defendant thus decided to carry on the business jointly and
entered into a Partnership by executing the Deed of Partnership dated _________. The said Partnership
Deed is duly registered bearing registration no. _____________.
(4) The plaintiff states that the plaintiff and the defendant as per the understanding reached between them and
as per the clause no. _______ of Deed of Partnership, agreed to share the profits made and the losses if
any incurred in equal proportion.
(5) The plaintiff submits that this plaintiff has vast marketing experience and the defendant is an accounts
expert and has good administration skills. Therefore, it was agreed upon that the plaintiff would look after
the marketing of the firm and the defendant would be in charge of accounts and the administration. The
plaintiff states that this plaintiff obtained marketing rights for various products from Indian as well as
Foreign companies to market their products in India.
(6) The plaintiff submits that this plaintiff was required to travel for 20 to 25 days in a month to generate good
business for the firm. The firm was doing good business, its turnover for the year 20___________ was
Rs._______ and for the year 20____________ was Rs._________.
(7) The plaintiff further submits that, as the plaintiff had complete trust in the defendant and as the plaintiff was
tied down with the extensive marketing work, the plaintiff did not check the bank accounts and other
financial dealings of the firm. The plaintiff submits that the defendant orally informed the plaintiff about bank
balance and profit etc and the plaintiff blindly believed the same.
(8) The plaintiff submits that, on or about _______date, when this plaintiff was attending the office and the
defendant was absent due to minor illness, the plaintiff noticed glaring discrepancies in the accounts. The
plaintiff was shell shocked to see unjustified and unaccounted withdrawals made by the defendant from the
various accounts of the firm. The total withdrawals are to the tune of Rs.__________/- (Rupees
_____________).
(9) The plaintiff submits that, when this plaintiff confronted the defendant about the said withdrawals, the
defendant gave evasive replies and refused to give any details about the same.
(10) The plaintiff submits that the defendant had failed to submit tenders along with earnest money deposit at
various institutes for want of funds. Thus the firm lost enormous business due to the fraud and
misappropriation of funds of the firm committed by the defendant.
(11) The plaintiff submits that the plaintiff has annexed with the plaint statement of accounts of withdrawals of
Rs._____________/- by this defendant and also a list of institutes from where the plaintiff had procured the
tender forms and inquiries. The firm has been supplying to all these institutes for the past _____ years and
the plaintiff was confident of getting orders worth Rs.________ crores from these various institutes with
atleast 10 % profit margin. The plaintiff craves leave of this Hon’ble Court to read the annexures stated
above as part and parcel of this Plaint.
(12) The plaintiff submits that the defendant has taken custody of all the account books, pass books and other
records and therefore it has become difficult for this plaintiff to get any further information about financial
dealings and the status of the firm. The defendant has committed serious breaches of various terms of the
partnership deed and is guilty of fraud, misappropriation of funds and misconduct. Under the
aforementioned facts and circumstances this plaintiff had no alternative but to seek the dissolution of the
firm through the intervention of this Hon’ble court.
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(13) That the cause of action for filing the suit first arose on _______ date when the plaintiff learnt about the
discrepancies, fraud and misappropriation committed by the defendant and thereafter on _________ date
when the defendant refused to account for the withdrawals and took wrongful custody of the account
books, etc. hence the suit is not barred by law of limitation.
(14) The suit is valued at Rs.________ for the purposes of court-fee and jurisdiction and the appropriate court-
fee stamp is paid herewith.
(15) The partnership firm is having its registered office at _____ (place) and hence this Hon’ble Court has
jurisdiction to entertain and adjudicate the suit.
(16) The plaintiff therefore most humbly prays as follows:
(i) That the partnership firm by name “Plasgla Enterprises” between this plaintiff and defendant may
please be dissolved.
(ii) The defendant be directed to render full and true accounts of the business to the plaintiff
(iii) Direct the defendant to deposit an amount of Rs.____________/- in court or in any nationalised bank
as deemed fit by the court.
(iv) Award costs of this suit to the plaintiff from the defendant.
(v) Pass any other just and equitable order as deemed fit in the interest of justice.
Verification
44 Section 4 of the Indian Partnership Act, 1932.

45 Sujan Suresh Sawant v Kamlakant Shantaram Desa, AIR 2004 Bom 446 : 2005 (1) Bom CR 763.
46 Broadway Centre v Gopaldas Bagri, AIR 2002 Cal 78.
47 Nandasur Starch and Chemicals v CIT, (1981) 127 ITR 727 (MP).
48 Popular Automobiles v GK Chami, AIR 2002 Ker 33.
End of Document
5.8 Suit Based on Promissory Note
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER V DRAFTING OF CIVIL SUITS > PARTNERSHIP
PARTNERSHIP

5.8.1 Introduction
“A ‘Promissory note’ is an instrument in writing (not being a Bank-note or a currency note) containing an unconditional
undertaking signed by the maker to pay a certain sum of money only to, or to the order of a certain person, or to the bearer
of the instrument.”49
The definition of a promissory note in the Stamp Act is much wider than the one provided in the Negotiable
Instruments Act. A promissory note which is payable after three years would come within Article 49 of the Stamp
Act and the duty on such note is payable as that of a bond.50
5.8.2 Essential Elements
From the above definition the following essential elements of a promissory note can be inferred.
5.8.2.1 Written instrument
A promissory note, like other negotiable instruments, must be in writing.
5.8.2.2 Undertaking to pay
A promissory note (also called as pro-note or simply note) contains an express undertaking or promise to pay. A
mere acknowledgement of debt is not a promissory note. For example, “I promise to pay B on order Rs. 500” is a
promissory note as there is a promise to pay.
5.8.2.3 Undertaking must be unconditional
The promise or undertaking to pay must be unconditional or subject to a condition which is certain to happen, e.g.,
death of a person.
5.8.2.4 Promise to pay money only
An instrument promising to pay money or an undertaking to pay money is a pro-note. Thus, an instrument
containing a promise to pay something other than money or something in addition to money, is not a promissory
note. The sum of money payable must also be certain.
5.8.2.5 Parties to the instrument must be certain
Usually there are two parties in a promissory note, i.e., the person who makes the note called the maker and the
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person to whom the promise is made is called the payee. The maker of the instrument must sign the instrument.
5.8.2.6 Stamp
The pro-note must be appropriately stamped in accordance with the Indian Stamp Act.
5.8.3 Validity of a Pro-note
A promissory note is a promise in writing to pay a certain amount of money on a certain date. The parties to the
promissory note must also be certain. If there are any over writings or the note is a promise to pay but conditional
one, the same will not be a promissory note.
(1) A combined reading of sections 4 and 13 of the Negotiable Instruments Act, makes it clear that if an
instrument otherwise satisfies the definition of promissory note, it will not cease to be a pro-note simply
because the expressions “to order” is absent in the instrument. When all requirements of a promissory note
are there absence of the words “or order” will not cease to make it a promissory note.51
(2) “To make a document a promissory note it must substantially consist of a promise to pay a defined sum
and must not be something else and guaranteeing payment of a fixed sum on a certain date after certain
period, it becomes a promissory note payable otherwise than on demand.”52
(3) A document which contains a promise to pay on demand a certain sum to a specified person is a
promissory note though there may be no words of negotiability. The unconditional undertaking to pay a
specified amount is the sine qua non in a promissory note. It is essential that the note must be payable at
all events. The promise to pay must not be dependent upon a contingency. If the payment is dependent
upon a contingency it would definitely amount to uncertainty and the document cannot be construed as a
promissory note.53
(4) There must be express undertaking to pay. A mere implied undertaking by the use of the word “debt” or
pro-note in a document is not sufficient to constitute it a promissory note. There must be an express
undertaking to pay.54
(5) To make a promissory note, there must be a payee ascertained by name or designation. Section 4 of the
Negotiable Instruments Act does not state that the name of the payee must appear in the words of promise
nor does it say that the payee must be specified in any particular part of the instrument. But it must point
out with certainty the party who is to receive the money.55
5.8.4 Right to File a Suit on a Pro-note
The right to sue on a negotiable instrument vests
(i) In the holder of the instrument.

(ii) Legal representative in case of death of the holder.
(iii) When the holder loses his status as such for any other reason, pass to the person who becomes entitled to
the money under the instrument.
Thus, in the case Rai Ram Kishore v Ram Prasad,56 it was held: “the right to suit on a promissory note vested in the
person who could give a valid discharge to its maker or acceptor, and that it was not essential that, in order to
maintain a suit on the basis of a promissory note, the plaintiff must, on the face of the instrument, be the payee or
the holder or the holder in due course.”57
5.8.5 Suit on Promissory Note with Blank Date
(1) Suit on promissory note with the name of promisor but the date of promissory note was left blank. It was
held that the instrument is not a promissory note. Subsequent filling of blank does not cure the defects as
the instrument was not valid on the date of filing of the suit.58
(2) Suit was filed for recovery of amount under a pro-note against the legal heirs of the borrower, there was
nothing to show that the said heirs, though related to maker, had inherited his estate so as to become
liable to repay his debts. It was held that the suit was not maintainable.59
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(3) A promissory note insufficiently stamped is not admissible in evidence for any purpose. This means that
such a document should neither be received in evidence nor cited upon. Thus, a suit based on
insufficiently stamped promissory note is liable to be dismissed.60
5.8.6 Defences
The defendant may challenge the validity of the pro-note or may plead that payment is already made or that some
material alterations have been made in the negotiable instrument and therefore no suit can be filed. Or that the suit
is barred by law of limitation. Depending on the facts of the case, other defences can be set up by the defendant on
similar lines as enumerated hereinabove.
5.8.7 Specimen
Specimen No. I
AT __________
C.S. No.__________/ 20___
Suit based on promissory note.
(1) The plaintiff states and submits that, under the transaction of _______ (give brief description of transaction)
dated __________ certain amount of money was paid by defendant to the plaintiff.
(2) The plaintiff submits that the amount of Rs. _______(Rupees________) was outstanding from the
defendant under the aforementioned transaction.
(3) That the defendant executed a promissory note on ________date for Rs_____ (Rupees) in favour of the
plaintiff on demand.
(4) The plaintiff submits that the plaintiff called upon the defendant to make the payment as per the pro-note
executed by the defendant on ______date. However, the defendant refused to make the said payment.
(5) The plaintiff submits that till date the defendant has not made any payment as per the said promissory note
or any part of it. Therefore, the plaintiff has no other recourse to recover the said money from the
defendant, hence the present suit.
(6) The plaintiff submits that the defendant is liable to pay an amount of Rs ______/- together with interest
thereon from the date, the demand was made till its actual realisation at the rate of 18% per annum.
(7) That the cause of action arose on ________date when the defendant refused to make the payment and
thereafter every day till the filing of the present suit. Hence the suit is well within the prescribed period of
limitation.
(8) That the suit is valued at Rs_____ for jurisdiction, advocates fees and other reliefs claimed herein and
proper court fee stamp is paid herewith.
(9) That the cause of action arose on ________date and the suit is valued at Rs______ therefore the Hon’ble
court has jurisdiction to entertain, try and decide the case on merits.
(10) The plaintiff therefore most humbly prays as follows:
(a) Direct and order the defendant to pay an amount of Rs ______ to the plaintiff as per promissory note
dated ______.
(b) Direct the defendant to pay interest at the rate of 18% per annum from _______ date till the actual
realisation of the amount.
(c) Award costs of this suit to the plaintiff from the defendant.
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Verification
49 Section 4, Negotiable Instrument Act.

50 Raj Bahadur Singh v Mahadeo rPrasad, AIR 1981 All 58.
51 P Vajramma v More Agaiah AIR 1979 AP 2.
52 Y Veeraiah v Margadarsi Chit Fund Pvt Ltd, 1990 68 Comp Cas 484 AP.
53 CN Sankaram Nambuduripad v Vijayan AIR 1988 Ker 120 at 121.
54 Bachan Singh v Ram Avadh, AIR 1949 All 431.
55 Jagjivandas Bhikhabhai v Gumanbhai Narottamdas, AIR 1967 Guj 1 : (1965) GLR 778.
56 Rai Ram Kishore v Ram Prasad, AIR 1952 All 245.
57 Rai Ram Kishore v Ram Prasad, AIR 1952 All 245.
58 Sesharal Bajna v VC Surbramanian, AIR 1983 Mad 368.
59 Govindammal v Bhuvaneswari Financing Corporation, AIR 2002 Mad 296.
60 Jatindra Mohan v Khara Singh, AIR 1964 Assam 138.
End of Document
5.9 Specific Performance of a Contract
Dr Medha Kolhatkar
RELATING TO IMMOVABLE PROPERTY
SUITS RELATING TO IMMOVABLE PROPERTY

5.9.1 Introduction
When a party is called upon to perform the actual promise made to the other party, then it is called as specific
performance of the contract. According to Pomeroy, “Specific Performance as consisting in the contracting party’s
exact fulfillment of the obligation which he has assumed … in his doing or omitting the very act which he has
undertaken to do or omit.”61
The Specific Relief Act, 1963 has been amended by the Specific Relief (Amendment) Act of 2018. Under the Act of
1963, the courts had the discretion to grant specific relief. Now the grant of specific relief is a norm and is no more a
discretionary remedy. It would now be available to a party as a matter of right. As per the amendment Act (Section
10), the courts are bound to enforce the specific performance of a contract subject to limited exceptions.
As per the amendment act, only such contracts are not specifically enforceable where either (i) substituted
performance in accordance with section 20 of the Act has been obtained or (ii) where the performance is of a
continuous duty which the courts cannot supervise or (iii) where the contract is dependent on personal qualifications
of the parties that the court cannot enforce it or its material terms and (iv) where the contract is determinable.
Section 14A gives power to the courts to engage experts to assist the court on any specific issue involved in the
suit.
Under section 15 of the amended Act, a limited liability partnership (LLP) formed from the amalgamation of the two
existing LLPs, one of which may have entered into a contract before the amalgamation can now obtain specific
performance. Now the parties seeking specific performance only need to prove the same and the readiness and
willingness is not required to be stated in the pleadings.
5.9.2 Substituted Performance Contract
Under the amended law, a party suffering breach of a contract is now entitled to have the contract performed by a
third party/agents and can recover the cost and expenses actually incurred in substituting such performance, from
the defaulting party.
5.9.3 When Specific Performance of a Contract Can be Enforced by the Court
The Specific Relief (Amendment) Act of 2018 provides under section 10 as to contracts, which can be specifically enforced
by the court –
Except as otherwise provided in this chapter, the specific performance of any contract may, in the discretion of the court, be
enforced—
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(a) where there exists no standard for ascertaining the actual damage caused by the non-performance of the
act agreed to be done, or
(b) When the act agreed to be in done is such that compensation in money for its non performance would not
afford adequate relief.
Explanation: Unless and until the contrary is proved, the court shall presume—
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by
compensation in money; and
(ii) where the property is held by the defendant as the agent or trustee of the plaintiff.
10. Specific performance in respect of contracts.—The specific performance of a contract shall be enforced by the court
subject to the provisions contained in sub-section (2) of section 11, section 14 and section 16.62
5.9.4 Contracts which Cannot be Specifically Enforced
The Specific Relief Act declares that certain contracts cannot be specifically enforced. When the nature of the
contract is such that it requires continuous monitoring of the same or where compensation is an adequate relief, or
is dependent on the personal qualification or volition of the parties or otherwise then such contracts cannot be
specifically enforced.
Section 14 of the Specific Relief Act, 1963 lays down as to which contract cannot be specifically enforced.
Section 14 of Contracts not specifically enforceable—
14. The following contracts cannot be specifically enforced, namely:—
(a) where a party to the contract has obtained substituted performance of contract in accordance with the
provisions of section 20;
(b) a contract, the performance of which involves the performance of a continuous duty which the court cannot
supervise;
(c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce
specific performance of its material terms; and
(d) a contract which is in its nature determinable.
14A. (1) Without prejudice to the generality of the provisions contained in the Code of Civil Procedure, 1908, in any suit
under this Act, where the court considers it necessary to get expert opinion to assist it on any specific issue involved in the
suit, it may engage one or more experts and direct to report to it on such issue and may secure attendance of the expert for
providing evidence, including production of documents on the issue.
(2) The court may require or direct any person to give relevant information to the expert or to produce, or to provide access
to, any relevant documents, goods or other property for his inspection.
(3) The opinion or report given by the expert shall form part of the record of the suit; and the court, or with the permission of
the court any of the parties to the suit, may examine the expert personally in open court on any of the matters referred to
him or mentioned in his opinion or report, or as to his opinion or report, or as to the manner in which he has made the
inspection.
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(4) The expert shall be entitled to such fee, cost or expense as the court may fix, which shall be payable by the parties in
such proportion, and at such time, as the court may direct.
5.9.5 Who Can Obtain Specific Performance
Section 15 states as to who can enforce specific performance.
PERSONS FOR OR AGAINST WHOM CONTRACTS MAY BE SPECIFICALLY ENFORCED
15. Who may obtain specific performance.—Except as otherwise provided by this Chapter, the specific performance of a
contract may be obtained by—
(a) any party thereto;

(b) the representative in interest or the principal, of any party thereto:
Provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract,
or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not
be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the
performance thereof by his representative in interest, or his principal, has been accepted by the other party;
(c) where the contract is a settlement on marriage, or a compromise of doubtful rights between members of
the same family, any person beneficially entitled thereunder;
(d) where the contract has been entered into by a tenant for life in due exercise of a power, the remainder
man;
(e) a reversioner in possession, where the agreement is a covenant entered into with his predecessor in title
and the reversioner is entitled to the benefit of such covenant;
(f) a reversioner in remainder, where the agreement is such a covenant, and the reversioner is entitled to the
benefit thereof and will sustain material injury by reason of its breach;
(fa) when a limited liability partnership has entered into a contract and subsequently becomes amalgamated
with another limited liability partnership, the new limited liability partnership which arises out of the
amalgamation.
(g) when a company has entered into a contract and subsequently becomes amalgamated with another
company, the new company which arises out of the amalgamation;
(h) when the promoters of a company have, before its incorporation, entered into a contract for the purposes
of the company, and such contract is warranted by the terms of the incorporation, the company:
Provided that the company has accepted the contract and has communicated such acceptance to the other party to the
contract.
Section 16-Personal bars to relief –
Personal bars to relief.—Specific performance of a contract cannot be enforced in favour of a person—
(a) who has obtained substituted performance of contract under section 20; or
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(b) who has become incapable of performing, or violates any essential term of, the contract that on his part
remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion
of, the relation intended to be established by the contract; or
(c) who fails to prove that he has performed or has always been ready and willing to perform the essential
terms of the contract which are to be performed by him, other than terms of the performance of which has
been prevented or waived by the defendant.
Explanation.—For the purposes of clause (c),—
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or
to deposit in court any money except when so directed by the court; (ii) the plaintiff must prove performance of, or
readiness and willingness to perform, the contract according to its true construction
5.9.6 Substituted Performance of Contract
Section 20. Substituted performance of contract.—
(1) Without prejudice to the generality of the provisions contained in the Indian Contract Act, 1872 (9 of 1872), and, except
as otherwise agreed upon by the parties, where the contract is broken due to non-performance of promise by any party, the
party who suffers by such breach shall have the option of substituted performance through a third party or by his own
agency, and, recover the expenses and other costs actually incurred, spent or suffered by him, from the party committing
such breach.
(2) No substituted performance of contract under sub-section (1) shall be undertaken unless the party who suffers such
breach has given a notice in writing, of not less than thirty days, to the party in breach calling upon him to perform the
contract within such time as specified in the notice, and on his refusal or failure to do so, he may get the same performed
by a third party or by his own agency:
Provided that the party who suffers such breach shall not be entitled to recover the expenses and costs under sub-section
(1) unless he has got the contract performed through a third party or by his own agency.
(3) Where the party suffering breach of contract has got the contract performed through a third party or by his own agency
after giving notice under sub-section (1), he shall not be entitled to claim relief of specific performance against the party in
breach.
(4) Nothing in this section shall prevent the party who has suffered breach of contract from claiming compensation from the
party in breach.
20A. Special provisions for contract relating to infrastructure project.—
(1) No injunction shall be granted by a court in a suit under this Act involving a contract relating to an infrastructure project
specified in the Schedule, where granting injunction would cause impediment or delay in the progress or completion of such
infrastructure project.
Explanation.—For the purposes of this section, section 20B and clause (ha) of section 41, the expression “infrastructure
project” means the category of projects and infrastructure Sub-Sectors specified in the Schedule.
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(2) The Central Government may, depending upon the requirement for development of infrastructure projects, and if it
considers necessary or expedient to do so, by notification in the Official Gazette, amend the Schedule relating to any
Category of projects or Infrastructure Sub-Sectors.
(3) Every notification issued under this Act by the Central Government shall be laid, as soon as may be after it is issued,
before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one
session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or
the successive sessions aforesaid, both Houses agree in making any modification in the notification or both Houses agree
that the notification should not be made, the notification shall thereafter have effect only in such modified form or be of no
effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of
anything previously done under that notification.
Plaintiff’s readiness and willingness to perform his part of contract, is a sine qua non for maintainability of suit for
specific performance.63
In considering whether a person willing to perform his part of the contract, the sequence in which the obligations
under the contract are to be performed must be taken into account and if under the terms of the contract the
obligations of the parties have to be performed in a certain sequence, one of the parties to the contract cannot
require compliance with the obligations by the other party without, in the first instance, performing his own part of
the contract which, in the sequence of obligations, is performable by him earlier.64
5.9.7 Limitation
As per Article 54 of the Limitation Act, 1963 the period of limitation for a suit for specific performance of a contract is
three years from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that the
performance is refused.
5.9.8 Pleadings in a Suit for Specific Performance of the Contract
(1) The plaintiff must contend the details of the contract.

(2) The plaintiff should enumerate as to how breach of contract has been committed.
(3) The plaintiff has performed, his part of obligations under the contract.
(4) The plaintiff is ready and willing to perform his part of obligations under the contract. Readiness implies the
financial capacity to pay the balance amount of consideration and willingness shows the intention to
perform the obligation.
(5) In a suit if the plaintiff fails to plead readiness, willingness to perform the contract, then it may result in
dismissal of the suit.65
(6) In a suit for specific performance of contract the pleadings must be in conformity with section 16(1)(c) of
the Specific Relief Act, and the first Schedule of the plaint forms, specified for suit for specific performance
in Civil Procedure Code, otherwise the suit is not maintainable.66
5.9.9 Defences
The defendant may set up the following defences. However, this list is not exhaustive:
(1) that the parties have mutually rescinded the contract, or

(2) that no agreement was executed as alleged by the plaintiff, or
(3) that the plaintiff has failed and neglected to perform his part of obligations under the contract, or
(4) that the suit property is subjected to court orders in another case, or
(5) that the plaintiff has not come to the court with clean hands, the Plaintiff is guilty of delay and laches, and
hence, is not entitled to the equitable relief of specific performance of the contract, or
(6) that the plaintiff is already compensated for breach, or
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(7) that the plaintiff is guilty of fraud, misrepresentation, etc., or

(8) that the claim is barred by limitation.
5.9.10 Specimen
Specimen No. I
IN THE COURT OF CIVIL JUDGE __________ AT __________
C.S. NO. __________/ 20___
Suit for specific performance of contract
The plaintiff above-named submits most respectfully as follows:—
(1) The plaintiff states that this plaintiff was interested in purchasing farmhouse land at ________ and came
across the advertisement given by the defendant in ________ newspaper dated ________.
(2) The plaintiff therefore, approached the defendant. After due negotiations between the plaintiff and the
defendant, the plaintiff entered into an agreement with the defendant for sale of the of land, described
herein below and hereinafter referred to as the suit property for the sake of brevity.
Description of the suit property
All that piece and parcel of land bearing No.________ situate within the Registration Division and District
_________, sub-division and Taluka _____ within the local limits of the ______ bearing Survey No.______ totally
admeasuring about _______ sq. mtrs. and is bounded as follows-
On or towards the East –
On or towards the South –
On or towards the West –
On or towards the North –
(3) The plaintiff submits that the plaintiff entered into an agreement with the defendant on __________date for
the sale of the suit property. That as per the said agreement duly executed between the parties a total
consideration payable by the plaintiff to the defendant is Rs. _______________/- (Rupees ____________
Only). The plaintiff submits that the plaintiff paid an amount of Rs. _________/- as earnest money at the
time of executing the agreement. The defendant issued a valid receipt for the same and acknowledged the
said payment of earnest money.
(4) The plaintiff submits that, as per the agreement clause (7) it was agreed that the sale deed will be
executed by the defendant in favor of the plaintiff within 3 months from the date of the agreement and the
plaintiff shall pay the entire amount of balance consideration at the time of executing the sale deed.
(5) The plaintiff submits that the plaintiff had sent a draft of the sale deed to the defendant for his approval on
_______ date. The plaintiff submits that in spite of repeated requests over phone, and by emails, the
defendant neither approved the draft nor communicated anything to this plaintiff. The plaintiff states that
the defendant has failed and neglected to honour his obligations under the agreement dated ______ by
refusing to execute the sale deed of the suit property in favour of this plaintiff.
(6) The plaintiff finally sent him a legal notice dated ______ by RPAD calling upon the defendant to complete
all the formalities and execute the sale deed as per the agreement dated ______. The defendant sent a
false and fabricated notice reply which was received by the plaintiff on ______ date.
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(7) The plaintiff submits that plaintiff was and is always ready and willing to perform his part of the contract and
is ready with the balance amount of consideration to be paid to the defendant at the time of execution of
the sale deed. The plaintiff is producing herewith the relevant extracts of his bank passbook.
(8) The plaintiff submits that the defendant has committed breach of contract by not executing the sale deed
within 3 months from the date of the agreement hence there is need for seeking specific performance of
the contract from the Hon’ble Court.
(9) That the cause of action for the suit first arose on ______ date when the stipulated time for execution of the
sale deed elapsed and thereafter, every day till the filing of this suit.
(10) That the market value of the suit property is Rs.________ and the appropriate court fee stamp is affixed
herewith.
(11) The suit property is situated within the territorial jurisdiction of this Hon’ble Court and hence this court has
jurisdiction to entertain, try and decide the suit.
(12) It is therefore most respectfully submitted as under:
(i) That a judgment and decree be passed directing the defendant to execute the sale deed in favour of
the plaintiff in respect of the suit property on receiving the balance of the sale consideration of Rs.
_________/- within the time fixed by this Hon’ble Court.
(ii) In case of the failure on part of the defendant to execute sale deed as directed above, the Hon’ble
Court be pleased to appoint a commissioner or any officer of this Hon’ble Court to execute the sale
deed for and on behalf of the defendant in respect of the suit property described above free from all
encumbrances, at the cost of the plaintiff.
(iii) The defendant, his agents, employees, power of attorney holder etc. be restrained by an order of
permanent injunction from dealing with the suit property in any manner.
(iv) The defendant be directed to put the plaintiff in vacant possession of the suit property.
(v) Award costs of this suit to the plaintiff from the defendant.
(vi) Pass any other just and equitable order as deemed fit in the interest of justice.
Verification
Specimen No. II
IN THE COURT OF CIVIL JUDGE __________ AT __________
C.S. NO. __________/ 20___
Suit for specific performance of contract
The plaintiff above-named submits most respectfully as follows:
All that piece and parcel of land bearing No.________ together with structure standing thereon, situate within the
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Registration Division and District _________, sub-division and Taluka _____ within the local limits of the ______
bearing Survey No.______ totally admeasuring about _______ sq. mtrs and constructed portion admeasuring about
________ sq. mtrs. is bounded as follows—
On or towards the East—
On or towards the South—
On or towards the West—
On or towards the North—
(1) The plaintiff states that the defendant is the absolute owner of the property described hereinabove, i.e., the
suit property.
(2) The plaintiff states that the plaintiff was in need of premises for ________ purpose and came to know that
the defendant is interested in giving the suit property on lease.
(3) The plaintiff states that the plaintiff met the defendant on _______ date and discussed the terms and
conditions of lease.
(4) The plaintiff states that, thereafter on _______ date the defendant and plaintiff as per orally agreed terms
and conditions executed an agreement thereby recording the agreed terms and conditions.
(5) The plaintiff states that, as per clause (6) of the said agreement it was decided to execute the lease deed
within four months from the date of the agreement.
(6) The plaintiff states that, as per the agreement dated _____ the plaintiff has paid an amount of Rs. _____
as premium to the defendant. The said payment is made by cheque dated ______ drawn on _______ bank
bearing Cheque No. ________. The defendant has realised the cheque and received the said premium
amount.
(7) The plaintiff states that the plaintiff called upon the defendant on _____ date and requested him to execute
the lease deed but the defendant was evasive and refused to make any commitment for the execution of
the lease deed. Thereafter, the plaintiff again sent him an email dated ______ and _______ but the
defendant failed to respond to the same. The plaintiff states that the defendant is now avoiding to execute
lease deed as per agreement dated ______, in favour of the plaintiff with respect to the suit property.
(8) The plaintiff states that the plaintiff in anticipation of conducting his business at the suit property, printed
brochures, visiting cards, made purchases of computers, printers and other office equipments and
stationary. So also the plaintiff has obtained license under the Shop Act wherein he has shown the suit
property as his place of business.
(9) The plaintiff states that the plaintiff is ready, willing and is in a position to perform all the obligations under
the agreement dated ______. He is producing alongwith this plaint his passbook extracts.
(10) The plaintiff states that the defendant after agreeing to give on lease the suit property to this plaintiff, is
now trying to sell the suit property. The plaintiff submits that the defendant agreed to give on lease the suit
property for a duration of 10 years and this plaintiff in anticipation of obtaining the suit property on lease
has made all business plans and business commitments.
(11) The plaintiff states that, as the defendant failed to execute the lease deed within four months from the date
of the agreement and is now very evasive and is trying to avoid this plaintiff under one pretext or the other,
hence this plaintiff has no alternative but to approach this Hon’ble Court to seek the relief of specific
performance of the contract.
(12) That the cause of action arose on ______date when the defendant first refused to execute the lease deed
with respect of the suit property and thereafter every day till the filing of the suit.
(13) That the cause of action arose on ______ and the suit is filed on _____. Hence, the suit filed is well within
the prescribed period of limitation.
(14) The plaintiff states that the suit property is situated at ______ hence this court has jurisdiction to entertain,
try and decide the suit.
(15) That the suit is valued at Rs. _____ for the purposes of reliefs claimed herein and advocate fees, etc. and
the appropriate court fee stamp is paid herewith.
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(16) It is therefore most humbly prayed as follows:—

(i) That judgment and decree for specific performance of the contract of lease be passed in favour of the
plaintiff and against the defendant.
(ii) Direct the defendant in pursuance of the above decree to execute the Deed of Lease in favour of the
plaintiff with respect to suit property.
(iii) The plaintiff be put in possession of the suit property.
(iv) Award costs of the suit to the plaintiff from the defendant.
Verification
61 Pomeroy’s Specific Performance—A Control, 3rd ed, pp 4, 5.

62 Subs. by Act 18 of 2018, section 3, for section 10 (w.e.f. 1-10-2018).
63 Abdul Khader v PK Sara Bai, AIR 1990 SC 682.
64 Ajaib Singh v Tulsi Devi, AIR 2000 SC 2494 : (2000) 65 CC 566.
65 Abdul Khader Rowther v PK Sarabai, AIR 1990 SC 682.
66 Thimmo Gowda v Kalegowda, AIR 1986 Kant 204.
End of Document
5.10 Suit for Cancellation of Instruments
Dr Medha Kolhatkar

5.10.1 Introduction
Sections 31 to 33 of the Specific Relief Act provide for cancellation of Instruments. Section 31 of the Act lays down
the conditions on the fulfillment of which the relief of cancellation of an instrument can be granted by the court.
Before relief under this section can be granted, three conditions must be fulfilled:
(i) that the written instrument in question is either void or voidable as against the plaintiff.
(ii) Plaintiff may reasonably apprehend serious injury from the instrument being left outstanding, and iii) In view of all
circumstances of the case the court considers it reasonable and proper to administer the protective and preventive justice
asked for.67
The relief of cancellation of an instrument is based on the equitable doctrine, “one who seeks equity, must do
equity”. The relief under section 31 is founded upon the administration of protective justice for fear that the
instrument may be vexatiously or injuriously used by the defendant against the plaintiff when evidence to impeach it
may be lost, or that it may throw a cloud or suspicion over his title or interest.
The party is relieved upon the principle, as it is technically called, “quia toncit” that is for the fear that such
agreement securities, deeds or other instruments may be vexatiously or injuriously used against him, when the
evidence to impeach may be lost or they may now throw a cloud of suspicion over his title or “interest” (as per
Equity Jurisprudence).
In Yanala Malleshwari v Ananthula Sayamma,68 the Andhra Pradesh High Court has laid down that “if a person
sells away the property belonging to other, it would certainly be fraud on the statute. It would be adding insult to
injury, if a person is asked to go to Civil Court and get the subsequent sale deed cancelled or seek a declaration.
The title of a person remains intact even if a stranger conveys that title to another stranger, which is ineffective.”
5.10.2 Discretionary Relief
The relief provided for under section 31 is a discretionary relief as indicated by the use of the word “may” in its
discretion in the section. But the exercise of discretion must be sound and reasonable, guided by judicial principles
and is capable of correction is appeal, but the appellate court would not lightly interfere in the lower court’s
discretion.69
Section 31 of the Specific Relief Act, 1963 is not limited to a suit for cancellation of a written contract only. It covers
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a case where a person against whom a written instrument, be it a contract or deed of sale, or a deed of trust or any
other kind of written instrument, is void or voidable, and cancelled.70
No relief will be granted under this section if the instrument sought to be adjudged void or voidable accurately
represents the intention of the parties.71
If the instrument has been registered under the Indian Registration Act, 1908, the Court shall also send a copy of its
decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy
of the instrument contained in his books, the fact of its cancellation.
When the document in question is a void one, the question of seeking its cancellation would not arise at all. It is only when
a document is a voidable one that is valid until declared as void the question of seeking its cancellation would arise.72
5.10.3 Limitation
A suit to cancel or set aside an instrument or decree, or for the rescission of a contract must be fulfilled/filed within
three years from the date when the facts entitling the plaintiff to have the instrument or decree cancelled or set
aside or the contract rescinded, first became known to him.
(Article 59 of the Schedule of the Limitation Act, 1963)
Section 32 of the Act declares that where an instrument is evidence of different rights or different obligations, the
court may, in a proper case, cancel it in part and allow it to stand for residue.
Thus, instead of cancelling the whole document, if it is possible to separate the rights and obligations then the court
may cancel that portion which is not valid and allow the documents/instrument to be valid partially.
5.10.4 Pleadings in a Suit for Cancellation of an Instrument
(1) The plaintiff must state clearly the facts and circumstances based on which he seeks cancellation of the
instrument.
(2) The nature and the effect of the instrument.
(3) Facts stating as to how serious an injury will be caused to the plaintiff if the instrument is left outstanding.
When the plaintiff desires “to have the document avoided or cancelled, necessarily, a declaration has to be given by
the court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered
document remains valid and binds the parties.”73
5.10.5 Defences
The defendant may deny that the instrument in question is void or voidable and in other words the defendant may
claim that the instrument is valid and binding. According to section 32, the defendant may allege that partial
cancellation is not possible. The defendant may claim the benefit received by the plaintiff under the instrument, as is
stated in section 33.
Where the claim was based on settlement deed then a separate suit under section 31 of the Act should be filed
instead of filing of partition suit:74
The well settled principle of law is that if a particular document or decree is void the person affected by the said document
or decree can very well ignore the same and file a suit seeking substantive relief which may be available to him without
seeking any declaration that the said decree or document is void or any consequential relief of cancellation of the same.75
5.10.6 Specimen
Specimen No. I
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AT __________
C.S. No.__________/ 20___
Suit for cancellation of sale deed and power of attorney
The plaintiff above-named states most humbly as follows:—
(1) Description of the property:—All that piece and parcel of land together with the structure standing thereon
situate within the Registration Division and District _________, sub-division and Taluka _____ within the
local limits of the ______ bearing Survey No.______ totally admeasuring about _______ sq. mtrs and is
bounded as follows—
On or towards the East – by
On or towards the South – by
On or towards the West – by
On or towards the North – by
That the property described in para 1 above was jointly purchased by this plaintiff and defendant No. 1 on or about
________.
(1) The plaintiff submits that this plaintiff married the defendant No. 1 on _____ date. The plaintiff submits that
immediately after the marriage, this plaintiff came to know that the defendant was cheating on her and was
having an extra marital affair. Therefore, the plaintiff filed a divorce petition against the defendant no. 1.
The Hon’ble Family Court Judge was pleased to dissolve the marital tie between the plaintiff and defendant
no. 1 by its Judgment and order dated ______.
(2) That the plaintiff submits that the defendant no. 1 had obtained signatures of this plaintiff on certain papers,
documents including some blank papers and since the plaintiff that time, was not aware of the fraudulent
intentions of this defendant, she signed all the papers/ documents as required by the defendant no. 1, i.e.,
the husband of the plaintiff.
(3) The plaintiff submits that, when she had enquired with the defendant as to the reasons why the defendant
was obtaining her signatures he had falsely informed her that it was done to complete the sale transaction
of the suit property mentioned in para 1. The plaintiff thereafter believing the defendant no. 1 executed a
Power of Attorney dated _____ in favour of the defendant no. 1 and the same is registered with
__________.
(4) The plaintiff submits that this plaintiff is a software engineer drawing monthly salary of Rs. 60,000/- after all
tax and other deductions. The suit property was purchased at Rs._______ and out of the total
consideration, an amount of Rs.______, i.e., almost 64% of the consideration amount was paid by this
plaintiff.
(5) The plaintiff submits that, since the relations at the time of purchase of the suit property between the
plaintiff and defendant were cordial, this plaintiff completely trusted her then husband, i.e., defendant no. 1
and signed all the papers and documents.
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(6) The plaintiff submits that, on or about ______date this plaintiff came to know that the defendant no. 1 has
sold the suit property to defendant no. 2 which is a registered partnership firm. The said sale deed is
executed by the defendant no. 1 in favour of defendant no. 2 on _____ date and registered with the office
of the sub-registrar, at _______ date _____ at serial No.______.
(7) The plaintiff submits that she is the co-owner of the said suit property and the said sale transaction was
executed and registered without her knowledge and consent. The said alleged sale deed dated ________
is invalid and inoperative and needs to be declared as illegal and inoperative. Hence, the said transaction
should be cancelled forthwith and removed from the record of rights maintained at ________ office.
(8) The plaintiff submits that it appears that defendant no. 1 and the defendant no. 2 are acting in collusion to
deprive and defeat the legitimate rights of this plaintiff.
(9) The plaintiff submits that this plaintiff had temporarily shifted from the suit property to her parent’s house at
_______ as she had met with an accident and was undergoing treatment, but the possession of the suit
property was and is with this plaintiff including one set of keys of the suit property. However, for any reason
if it is found that the plaintiff is not in possession of the suit property then this suit is also for claiming
possession of the suit property.
(10) The plaintiff submits that if the said Power of Attorney dated ______ executed by the plaintiff in favour of
the defendant no. 1 and the Sale Deed dated _____ executed by defendant no. 1 in favour of defendant
no. 2, if left outstanding, against this plaintiff, then both these instruments may be vexatiously or injuriously
used by the defendants against this plaintiff.
(11) The plaintiff submits that the Power of Attorney was executed by the plaintiff due to fraud practiced on her
by the defendant no. 1. That the defendant no. 1 has no right, power or authority to dispose off the suit
property or to encumber it in any manner whatsoever unilaterally, without the knowledge and consent of
this plaintiff.
(12) The plaintiff submits that this plaintiff is annexing with the plaint all bank statements wherein, the entries
show that this plaintiff has made payment of Rs. ______ for purchasing the suit property, i.e., 64% of the
total consideration paid for purchasing the suit property.
(13) The plaintiff submits that the defendant no. 1 has executed the said Sale Deed dated ____ by practicing
fraud on this plaintiff and this plaintiff has no knowledge about the sale proceeds received by the defendant
no. 1 under the alleged sale transaction. The plaintiff strongly objects to the said transaction, as the same
is illegal and the entire transaction is tainted by fraud. Thus, the Sale Deed and Power of Attorney dated
_______ and _____ respectively need to be cancelled as the same are null and void.
(14) The plaintiff submits that the cause of action for this suit arose on _______ when the sale deed was
registered and therefore the suit filed today is well within the period of limitation.
(15) That the market value of the suit property is Rs.______ and therefore the suit is valued at Rs.________ for
various reliefs claimed herein and the appropriate court fee stamp is paid herewith.
(16) The suit property is situated within the local limits of the jurisdiction of this court and hence this Hon’ble
Court has jurisdiction to entertain, try and decide the present suit.
(17) That the plaintiff therefore most humbly prays as follows:
(a) That the sale deed dated ______ executed by the defendant no. 1 in favour of the defendant no. 2 of
the suit property be declared as illegal, invalid and inoperative and the same be called for and
cancelled.
(b) That the Power of Attorney dated ________ executed by the plaintiff in favour of defendant no. 1 be
declared as illegal and void.
(c) The defendants no. 1 and no. 2 be restrained by an order of permanent injunction from disturbing the
possession and peaceful enjoyment of the suit property by the plaintiff.
(d) If the plaintiff is not found in possession, the actual physical possession of the property be delivered to
the plaintiff.
(e) It may please be declared that the plaintiff is co-owner in respect of the suit property and her name be
added/included in the record of rights.
(f) Award the costs of this suit to the plaintiff from the defendants.
Page 5 of 8
(g) Pass any other just and equitable order as deemed fit in the interest of justice.
Verification
Specimen No. II
AT __________
C.S. NO. __________/ 20___
Suit for Declaration and injunction and for cancellation of Instruments
The plaintiff above named states most humbly as follows:
(1) Description of the property:—All that piece and parcel of land situate within the Registration Division and
District _________, sub-division and Taluka _____ within the local limits of the ______ bearing Survey
No.______ totally admeasuring about _______ sq. mtrs and is bounded as follows—
On or towards the East—
On or towards the South—
On or towards the West—
On or towards the North—
(2) That the plaintiff is the undivided shareholder in respect of the suit property. The suit property was given to
the forefathers of this plaintiff as “Inam”.
(3) The plaintiff submits that no partition or division of the suit property has been done till date.
(4) The plaintiff submits that the said property is, therefore, jointly owned, possessed and enjoyed by the
plaintiff alongwith other owners.
(5) The plaintiff submits that the plaintiff came to know that the suit property was given as “Inam” to the
forefathers of the plaintiff and this is evident from the Alienation register maintained by _________. Where
the suit property is shown to given as “Inam” to the forefathers of the plaintiff.
(6) The plaintiff submits that, however, due to some mistake the suit property is shown as “gairan” (i.e., land
not suitable for cultivation, fallow land or waste land) land in the record of rights. The plaintiff therefore
wanted to rectify the said entries in the record of rights and wanted the names of the owners to be shown
in the 7/12 extract.
Page 6 of 8
(7) The plaintiff submits that, therefore the plaintiff executed a power of attorney in favour of the defendant with
the object to carrying out the necessary corrections in the record of rights. The said defendant represented
to this plaintiff that he could not do the rectification of the entries in the 7/12 extract and for that purpose the
plaintiff executed Power of Attorney in his favour.
(8) The plaintiff submits that the plaintiff alongwith Mr. _____ and Mr. _____ (who have undivided share in the
suit property) executed a Power of Attorney on _______ date in favour of the defendant. The said Power of
Attorney has been duly registered in the office of Sub Registrar bearing No. _______.
(9) The plaintiff submits that the defendant represented that he will correct/ rectify/ modify the entries in the
7/12 extract and assured the plaintiff and Mr. ______ and Mr. _______ that he is acquainted with the
necessary procedure to carry out the said correction in the Revenue records and can carry out rectification
if he is authorised in this behalf by executing a Power of Attorney.
(10) The plaintiff submits that the plaintiff alongwith others completely relied on the representations made by the
defendant because of the long period of acquaintance and association with the defendant. The defendant
persuaded the plaintiff to execute the Power of Attorney to carry out the necessary changes/corrections in
the record of rights.
(11) The plaintiff submits that the defendant represented to the plaintiff that without the execution of the Power
of Attorney it will not be possible for the defendant to get the “gairan” (fallow land/waste land) entry deleted
from the record of rights as owners of the suit property.
(12) The plaintiff contends that the plaintiff is an agriculturist and does not possess the knowledge about the
procedure for correction/rectification of the entries in the Revenue records and the required prosecution of
the same before the concerned authorities.
(13) The plaintiff submits that, since the defendant was closely acquainted with the plaintiff and being local
residents of _______ village, the plaintiff believed the representation made by the defendant and therefore
executed the Power of Attorney, thereby authorising the defendant to get rectification of the entries done
and to do the necessary acts, deeds and things for that purpose.
(14) The plaintiff submits that the defendant has failed and neglected to modify/rectify the 7/12 extract
pertaining to the suit property, which was the responsibility given to the defendant as the lawful attorney of
the plaintiff.
(15) The plaintiff submits that, since the defendant failed and neglected to perform his obligations under the
Power of Attorney, the plaintiff through advocate ______ (having office at _______) served a notice dated
______ and thereby has revoked the said Power of Attorney dated _______.
(16) The plaintiff submits that the other persons who along with the plaintiff had executed the Power of Attorney
dated _____ viz Mr. _______ and Mr. _______ died on ______ and _______ respectively. Therefore, due
to all these reasons, this Power of Attorney dated _____ stands cancelled/revoked.
(17) The plaintiff submits that the plaintiff has also given public notice on ______date in ______ newspaper
regarding the cancellation of the Power of Attorney.
(18) The plaintiff submits that since the defendant failed to get the necessary rectification of the entries in the
Revenue records done for the last more than ______ years, the very purpose of executing the Power of
Attorney got completely frustrated and hence the plaintiff had no alternative but to cancel/revoke the Power
of Attorney dated ______. However, in spite of the revocation of Power of Attorney the defendant is
attempting to enter into certain transactions on the basis of the Power of Attorney and is trying to deprive
the plaintiff of the suit property.
(19) The plaintiff submits that the defendant, taking undue advantage of his acquaintance with the plaintiff and
his family members and of the fact that the plaintiff is ignorant about the procedure for
cancellation/rectification of the entries in the Revenue records, got the Power of Attorney executed with
mala fide intentions and persuaded the plaintiff and others to authorise him to do many other acts, deeds
and things pertaining to the suit property through the said Power of Attorney.
(20) The plaintiff submits that the plaintiff never had any intention to permit the defendant to execute the Sale
Deed/agreement to sell in favour of the defendant with respect to the suit property by virtue of the said
Power of Attorney. In fact, the power given to the defendant under clause ____ of the said Power of
Attorney was a restricted power for the purpose of negotiations with third parties regarding the execution of
the Sale Deed/agreement to sell with regard to the said property and that too, only upon the rectification of
the entries in the revenue records.
Page 7 of 8
(21) The plaintiff submits that in fact, from the public notice/reply to the Public Notice in the daily newspaper
_______ dated __________, the malicious intentions of the defendant has become evident. The defendant
never had any interest to rectify the entries in the Revenue Records for which the defendant was
authorised by the Power of Attorney to do so; on the contrary, the defendant’s intentions always seem to
grab the suit property and therefore the defendant has executed the Agreement to sell in his favour by
misusing the said Power of Attorney.
(22) The plaintiff submits that the plaintiff has not received any consideration of whatsoever nature under the
said Power of Attorney, and the said Power of Attorney only authorised the defendant to carry out certain
works, i.e., particularly about rectification of the entries in the revenue records with respect to the suit
property and all other authorities were incidental to the same.
(23) The plaintiff submits that the defendant never had any independent authority to get the agreement to sell
executed in his favour, as has been alleged by the defendant, nor has the defendant intimated to the
Plaintiff about the alleged execution of the alleged agreement to sell of the suit property on the basis of the
said Power of Attorney.
(24) The plaintiff states that the plaintiff never had any intention to execute the Power of Attorney in favour of
the defendant for the purpose of execution of any agreement to sale or sale deed in favour of the
defendant.
(25) The plaintiff reiterates that the plaintiff has never been paid any consideration for the said power of
attorney, or has been paid any consideration for the alleged agreement to sell or any other documents
which the defendant has allegedly executed under the Power of Attorney in his favour, or in favour of any
other third party, and as such, the alleged document/s if executed are null and void. The plaintiff is in
possession of the suit property and the plaintiff neither had any intention to part with the suit property nor
has he parted with his possessory and ownership rights pertaining to the suit property till date.
(26) The plaintiff submits that now the plaintiff has understood that the defendant’s intention since the beginning
were never to act pursuant to the authorisation given under the said Power of Attorney for the purpose of
rectification of entries in the Revenue records pertaining to the suit property, and the defendant only
intended to grab the suit property fraudulently and illegally and with this fraudulent and malicious intention
the defendant persuaded the plaintiff to execute the Power of Attorney and furthermore got executed the
alleged agreement to sell in his favour illegally.
(27) The plaintiff submits that no consideration is paid nor possession is handed over under the said Power of
Attorney and as the persons who executed the Power of Attorney are no more except the plaintiff and the
plaintiff also has served notice on ______ and thereafter sent notice through his advocate dated ______
which is returned as unclaimed. The plaintiff has called upon the defendant not to do any act pursuant to
the said Power of Attorney dated _____ and that the defendant is guilty of fraud and cheating.
(28) The plaintiff submits that though the said Power of Attorney is revoked by the plaintiff, yet it appears that
the defendant is fraudulently misusing the Power of Attorney to the detriment of the rights and interests of
the plaintiff and other owners of the said property.
(29) The plaintiff submits that it is necessary that the defendant should be permanently and absolutely
restrained from dealing with the suit property in any manner whatsoever either under the alleged Power of
Attorney or by virtue of any other document/s.
(30) The plaintiff submits that the alleged agreement to sell also is null and void as the defendant never had any
authority to execute any such agreement in his favour either under the said Power of Attorney or otherwise.
No consideration is paid to the plaintiff, and thus the same is null and void.
(31) The plaintiff submits that, if the said two instruments viz. the Power of Attorney dated _____ and the
alleged agreement to sell executed by the defendant in his favour, are left outstanding, then serious injury
will be caused to the plaintiff and to the other owners of the suit property. Therefore, it is necessary that
both the documents/instruments be delivered and cancelled from the record of rights, as the same are null
and void. The said Power of Attorney as well as the agreement to sell, if left outstanding, may be
vexatiously or injuriously used by the defendant against the plaintiff.
(32) The plaintiff submits that it is therefore necessary that it be declared that the defendant has no right to deal
with the suit property and it should further be declared that any transactions entered into alleged to be
based on the said Power of Attorney are illegal, null and void.
(33) The cause of action for the present suit arose on ______ thereafter on _______ and thus the present suit
is well within the period of limitation.
Page 8 of 8
(34) The necessary court fee stamp is paid herewith.

(35) The subject matter of the present suit is immovable property which is situated at __________ and for the
cancellation of instruments which are executed at _______ and thus the Hon’ble court has the territorial
jurisdiction as well as pecuniary jurisdiction to entertain, try and decide the suit.
(36) It is therefore humbly prayed as follows:
(i) That the Power of Attorney dated ______ registered at office of sub Registrar bearing Sr. No. _____ be
cancelled from record of rights as the same is null and void.
(ii) That the alleged agreement to sell be cancelled and declared as null and void.
(iii) That the defendant be restrained by an order of permanent injunction from dealing with the suit
property in any manner whatsoever either himself or through his agents, servants, employees,
assignees, Power of Attorney holders, etc. either under alleged Power of Attorney or otherwise.
(iv) That it be declared that the defendant has no right pertaining to the suit property in any capacity
whatsoever.
(v) That such interim reliefs as would be prayed for be granted.
(vi) That the costs of this suit be awarded to the plaintiff against the defendant.
(vii) That any other just and equitable reliefs in the interest of justice be passed in favour of the plaintiff
against the defendant.
Verification
67 Jeka Dula v Bai Jivi, AIR 1938 Bom 37.

68 Yanala Malleshwari v Ananthula Sayamma, AIR 2007 AP 57.
69 Rikhobram Kalita v Nalini Kanta Dawka, AIR 1950 Assam 72.
70 Manick Lal v Shiva Jute Bailing, (1948) 52 Cal WN 389.
71 Julien Marret v Mahomed Khaleel Shirazi & Sons, AIR 1930 PC 86.
72 Syed Rasool v Mohammad Moulana, AIR 1977 Kant 173.
73 Ramti Devi v UOI, 1995 SCC (1) 198 : JT 1995 (1) 223.
74 Kasireddy Ramayamma v Kasireddy Ramma Rao, 1999 (4) ALD 491 : 1999 (4) ALT 118.
75 Sanjay Kaushish v DC Kaushish, AIR 1992 Delhi 118.
End of Document
5.11 Suit for Partition
Dr Medha Kolhatkar

5.11.1 Introduction
Partition means division made between several persons of joint properties which belong to them as co-proprietors
and on partition each becomes sole owner of the part allotted to him. Thus, by partition joint ownership comes to an
end. Where property in question is jointly owned by many persons and then any one of joint owners, if he desires
separation of his share in the property can seek partition of the property. When the co-parcener is denied the said
right by the other joint owners then he can file a suit for partition. If the parties agree for division of shares amicably
then partition can be made orally or by an agreement in writing. Partition does not necessarily mean physical
division of the property by metes and bounds. Where a property cannot be partitioned by metes and bound, the
partition can still be effected by one or more sharers being paid in money on other consideration in lien of his or
their share or shares in the property. Right to partition is a continuing right.
5.11.2 Formalities of Partition
Partition can be made either orally or through an agreement. The partition so made can be reduced to writing by
way of memorandum. If suit is filed, then through court or by means of arbitration, partition can be effected.
The Indian Stamp Act defines in section 2(15) of the Act, An Instrument of Partition as “any instrument whereby co-
owners of any property divide or agree to divide such property in severality, and includes also a final order for
effecting a partition passed by any Revenue Authority or any Civil Court and a award by an arbitrator directing
partition.”
The Bombay Stamp Act, 1958 also defines under section 2(m)—
(m) “instrument of partition” means any instrument whereby co-owners of any property divide or agree to divide
such property in severally and includes—
(i) a final order for effecting a partition passed by any revenue authority or any civil court,
(ii) an award by an arbitration directing a partition, and
(iii) when any partition is effected without executing any such instrument, any instrument or instruments
signed by the co-owners and recording, whether by way of declaration of such partition or otherwise,
the terms of such partition amongst the co-owners;
As per O XX rule 18, the Code of Civil Procedure, 1908, the court can pass a preliminary decree before passing
final decree declaring the rights of the parties having interest in the property.
Order XX rule 18 of Code of Civil Procedure, 1908, reads:

Page 2 of 5
R. 18. Decree in suit for partition of property or separate possession of a share therein—
Where the court passes a decree for the partition of property or for the separate possession of a share therein, then—
(1) If and in so far as the decree relates to an estate assessed to the payment of revenue to the Government,
the decree shall declare the rights of the several parties interested in the property, but shall direct such
partition or separation to be made by the collector, or any gazetted subordinate of the collector deputed by
him in his behalf, in accordance with such declaration and with the provisions of section 54.
(2) If and in so far as the decree relates to any other immovable property on to movable property, the court
may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary
decree declaring the rights of the several parties interested in the property and giving such further
directions as may be required.
5.11.3 Partition is Not a Transfer
It is only a renouncement of existing rights in common properties in consideration of getting exclusive rights and
possession over specific plots.76
A partition is not a transfer because it merely effects a change in the mode of enjoyment of property and is not an
act of conveying property from one living person to another.77
5.11.4 Can Partition be Re-opened?
Partition once made cannot be re-opened except on the ground of fraud or mistake in including property which did
not belong to the joint family. If it is shown that partition was obtained by fraud, coercion, misrepresentation or under
influence, it can be reopened. If some members are minors and partition is proved to be unjust and unfair and
detrimental to their interest, it can be re-opened, no matter when, it had taken place.78
5.11.5 Pleadings in a Suit for Partition
(1) The plaintiff should contend that he has title to the suit property.
(2) That the suit property is jointly held by the plaintiff and the defendants.
(3) That the plaintiff now desires partition of the property.
(4) That the plaintiff is in possession or that the plaintiff is not in possession.
(5) Details if any as to how the division of shares should be made by the court.
5.11.6 Defences
(1) The defendant may challenge the plaintiff’s title to the suit property.
(2) The defendant may plead that the property is not jointly held or that the plaintiff has been given his share.
(3) The defendant can set up the defence that the suit property cannot be partitioned under any law or custom
or that the plaintiff has already entered into a valid agreement thereby agreeing not to partition the suit
property.
(4) The right to partition is a continuing right; therefore the plea of limitation must be setup very carefully.
5.11.7 Specimen
Specimen No. I
IN THE COURT OF CIVIL JUDGE, __________ AT __________
Spl. C.S. NO. __________/ 20

Page 3 of 5
Suit for Partition
The plaintiff above-named states respectfully as under:
(1) The plaintiff submits that the plaintiff is a government servant and is working as ___________at _______
(place). The plaintiff states that his job is transferrable and he is transferred every three years.
(2) The defendants are real brothers of this plaintiff and both of them are residing at ________. They are
managing the agricultural lands and other properties which belong to the HUF (Hindu Undivided Family)
and this plaintiff is a member of HUF.
(3) The plaintiff submits that the father of this plaintiff and the defendants, late Shri. ________ died on ______
date at _______(place). He was the Karta of HUF. All the properties mentioned herein below are the joint
family properties and the same as on date are held jointly by all and no division or partition of the said
properties have been done.
(4) That after the death of the Karta of HUF, i.e., late Shri._________ the properties were and are being
managed by both the defendants for past two years.
(5) The plaintiff submits that following are the details of the properties of HUF in which this plaintiff has 1/3
share in the property.
Description of Suit Properties
(i) All that piece and parcel of the agricultural land bearing S. No. ___________ admeasuring
____________ hectares situated within registration division and district __________ sub-division and
Taluka ___________, situated at Revenue village _____ and bounded as follows.
On or towards
East:
South:
West:
North
(ii) All that piece and parcel of the land_ ad measuring _________ Sq. mtrs. together with structures
standing thereon by name _____and _______ admeasuring _____ Sq. mtrs., situated within
registration division and district __________ sub-division and Taluka ___________, within the limits of
________ Corporation, bearing CTS No. _______ plot No. ________ carved out of the layout of S. No.
___________ and bounded by as follows:
On or towards
East:
South:
West:
Page 4 of 5
North:
(6) The plaintiff submits that this plaintiff has 1/3 share in all the properties mentioned above. The plaintiff
submits that, as the defendants were managing the agricultural activities, the plaintiff was given share of
only 25% of the agricultural produce and the remaining 75% was shared between the defendants.
(7) The plaintiff submits that the plaintiff has contributed Rs. ______ every year to the joint family income,
towards the maintenance of the joint properties, payment of taxes, cess levies, etc. The plaintiff has
produced the relevant bank extracts regarding the same along with this plaint.
(8) The plaintiff submits that the annual income from the HUF properties given on rent is Rs. ______/- and this
plaintiff is entitled to Rs. ________/- i.e. one-third of the amount which is the share of this plaintiff.
(9) The plaintiff submits that the defendants acting in collusion with each other are trying to deprive this plaintiff
of his legitimate share in the properties. The plaintiff submits that the defendants have now refused to give
25% of the agricultural produce or its price to this plaintiff. The plaintiff had demanded the same on ______
date orally and on _____date in writing, however, the defendants paid no heed to the same.
(10) The plaintiff submits that both the defendants are trying to grab the suit properties by hook or crook and are
depriving this plaintiff of his legitimate share in the property. Though, the agricultural yield for the year
________was good, the defendants falsely informed this plaintiff that the yield from the crop was not good.
They also informed this plaintiff that certain quantities of rice were stolen from the storeroom. The plaintiff
submits that the defendants have not lodged any complaint for the alleged theft.
(11) The plaintiff submits that the defendants have refused to give 25% of the agricultural produce or its price to
the plaintiff. The defendants have also refused to give this plaintiff his share from the income of the other
joint properties. The plaintiff was therefore left with no alternative but to seek partition of the suit properties
by metes and bounds. The defendants with ulterior motives and malafide intentions gave false information
regarding the income from the agricultural produce and other joint properties. The plaintiff states that the
defendants have denied to partition the suit properties by metes and bounds.
(12) The plaintiff submits that this plaintiff therefore served upon the defendant’s notice through Adv. _______
dated ________ calling upon the defendants to partition the suit properties. The defendants sent a notice
reply dated _____, wherein they denied this plaintiff’s right in the suit properties. The plaintiff submits that
due to the mischievous and fraudulent approach of these defendants, the plaintiff now wants the said
properties to be partitioned by metes and bounds.
(13) The cause of action for the suit first arose on _______ date when the plaintiff was not given his share in the
agricultural produce and in the other incomes of the joint properties and thereafter every day till the filing of
this suit. Hence the suit is well within the period of limitation.
(14) The suit property is situated at _______ and the suit is valued at Rs. _______ therefore this Hon’ble Court
has territorial and pecuniary jurisdiction to try, entertain and decide the suit.
(15) The suit is valued at Rs.________ for various reliefs claimed herein and the appropriate court fee stamp is
paid herewith.
(16) It is therefore most respectfully prayed as under:—
(i) It be declared that the plaintiff is entitled to one-third share in the suit properties;
(ii) The suit properties may please be divided by metes and bounds and the plaintiff be put in possession
of the suit properties to the extent of his share;
(iii) The defendants, their agents, employees etc. be restrained by an order of permanent injunction from
interfering with the right of use, occupation and enjoyment of the suit properties of this plaintiff.
(iv) Award the costs of the suit to the plaintiff from the defendants.
Page 5 of 5
Verification
76 Venkideswara Prabhu v Surendranatha Prabhu Sudhakara, AIR 1985 Ker 265.

77 Pohkar Singh v Mt. Dulari Kunwar, AIR 1930 All 687.
78 Sukhrani v Hari Shankar, AIR 1979 SC 1436.
End of Document
5.12 Suit for Eviction and Possession
Dr Medha Kolhatkar

5.12.1 Introduction
The Maharashtra Rent Control Act, 1999, under section 16 has enumerated the grounds on which the landlord can
seek eviction of the rented premises from the tenant. The rent legislations of the other states are on similar lines
with minor variations pertaining to the grounds of eviction. Therefore, the specimen provided herein below is at par
with all the other state rent legislations also, though only the grounds of eviction under The Maharashtra Rent
Control Act are enumerated here.d
Section 16 under Maharashtra Rent Control Act
16. When landlord may recover possession
(1) Notwithstanding anything contained in this Act but subject to the provisions of section 25, a landlord shall
be entitled to recover possession of any premises if the court is satisfied—
(a) that the tenant has committed any act contrary to the provisions of clause (o) of section 108 of the
Transfer of Property Act, 1882;
Explanation.—For the purposes of this clause, replacing of tiles or closing of balcony of the
premises shall not be regarded as an act of a causing damage to the building or destructive or
permanently injurious thereto; or
(b) that the tenant has, without the landlord's consent given in writing, erected on the premises any
permanent structure;
Explanation.—For the purposes of this clause, the expression “permanent structure” does not
include the carrying out of any work with the permission, wherever necessary, of the municipal
authority, for providing a wooden partition, standing cooking platform in kitchen, door, lattice work
or opening of a window necessary for ventilation, a false ceiling, installation of air-conditioner, an
exhaust outlet or a smoke chimney; or
(c) that the tenant, his agent, servant, persons inducted by tenant or claiming under the tenant or, any
person residing with the tenant has been guilty of conduct which is a nuisance or annoyance to the
adjoining or neighbouring occupier, or has been convicted of using the premises or allowing the
premises to be used for immoral or illegal purposes or that the tenant has in respect of the premises
been convicted of an offence of contravention of any of the provisions of clause (a) of sub-section (1)
Page 2 of 6
of section 394 or of section 394A of the Mumbai Municipal Corporation Act, or of sub-section (1) or of
section 376 or of section 376A of the Bombay Provincial Municipal Corporations Act, 1949, or of
section 229 of the City of Nagpur Municipal Corporation Act, 1948; or of section 280 or of section 281
of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965; or
(d) that the tenant has given notice to quit and in consequence of that notice, the landlord has contracted
to sell or let the premises or has taken any other steps as a result of which he would, in the opinion of
the court, be seriously prejudiced if he could not obtain possession of the premises; or
(e) that the tenant has,
(i) on or after the 1st day of February 1973, in the areas to which the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 applied; or
(ii) on or after the commencement of this Act, in the Vidarbha and Marathwada, areas of the State,
unlawfully sub-let or given on license, the whole or part of the premises or assigned or transferred
in any other manner his interest therein; or
(f) that the premises were let to the tenant for use as a residence by reason of his being in the service or
employment of the landlord, and that the tenant has ceased, whether before or after commencement of
this Act, to be in such service or employment; or
(g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by
any person for whose benefit the premises are held or where the landlord is a trustee of a public
charitable trust that the premises are required for occupation for the purposes of the trust; or
(h) that the premises are reasonably and bona fide required by the landlord for carrying out repairs which
cannot be carried out without the premises being vacated; or
(i) that the premises are reasonably and bona fide required by the landlord for the immediate purpose of
demolishing them and such demolition is to be made for the purpose of erecting new building on the
premises sought to be demolished; or
(j) that the premises let consist of a tenement or tenements on the terrace of a building such tenement or
tenements being only in part of the total area of the terrace, and that the premises or any part thereof
are required by the landlord for the purpose of the demolition thereof and erection or raising of a floor
or floors on such terrace.
Explanation.—For the purposes of this clause, if the premises let include the terrace or part
thereof, or garages, servants quarters or out-houses (which are not on the terrace), or all or any
one or more of them, this clause shall nevertheless apply; or
(k) that the premises are required for the immediate purpose of demolition ordered by any municipal
authority or other competent authority; or
(l) that where the premises are land in the nature of garden or grounds appurtenant to a building or part of
a building, such land is required by the landlord for the erection of a new building which a municipal
authority has approved or permitted him to build thereon; or
(m) that the rent charged by the tenant for the premises or any part thereof which are sub-let is in excess of
the standard rent and permitted increases in respect of such premises or part or that the tenant has
received any fine, premium other like sum of consideration in respect of such premises or part; or
(n) that the premises have not been used without reasonable cause for the purpose for which they were let
for a continuous period of six months immediately preceding the date of the suit.
(2) No decree for eviction shall be passed on the ground specified in clause (g) of sub-section (1), if the court
is satisfied that having regard to all the circumstances of the case including the question whether other
reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by
passing the decree than by refusing to pass it.
Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by
passing the decree in respect of a part of the premises, the court shall pass the decree in respect of
such part only.
Page 3 of 6
Explanation.—For the purposes of clause (g) of sub-section (1), the expression “landlord” shall not
include a rent-farmer or rent-collector or estate-manager.
(3) A landlord shall not be entitled to recover possession of any premises under the provisions of clause (g) of
sub-section (1), if the premises are let to the Central Government in a cantonment area, and such
premises are being used for residence by members of the armed forces of the Union or their families.
(4) The court may pass the decree on the ground specified in clause (h) or (i) of sub-section (1) only in respect
of a part of the premises which in its opinion it is necessary to vacate for carrying out the work of repair or
erection.
(5) Notwithstanding anything contained in any other law for the time being in force, an assignment of a decree
for eviction obtained on the grounds specified in clauses (g), (h), (i) and (j) of sub-section (1) shall be
unlawful.
(6) No decree for eviction shall be passed on the ground specified in clause (i) or (j) of sub-section (1), unless
the court is satisfied—
(a) that the necessary funds for the purpose of the erection of new building or for erecting or raising of a
new floor or floors on the terrace are available with the landlord,
(b) that the plans and estimates for the new building or new floor or floors have been properly prepared;
(c) that the new building or new floor or floors to be erected by the landlord shall, subject to the provisions
of any rules, bye-laws or regulations made by municipal authority contain residential tenements not
less than the number of existing tenements which are sought to be demolished;
(d) that the landlord has given an undertaking—
(i) that the plans and estimates for the new building or new floor or floors to be erected by the
landlord include premises for each tenant with carpet area equivalent to the area of the premises in
his occupation in the building sought to be demolished subject to a variation of five per cent in
area;
(ii) that the premises specified in sub-clause (i) will be offered to the concerned tenant or tenants in
the re-erected building or, as the case may be, on the new floor or floors;
(iii) that where the carpet area of premises in the new building or on the new floor or floors is more
than the carpet area specified in sub-clause (i) the landlord shall, without prejudice to the liability of
the landlord under sub-clause (i), obtain the consent 'in writing' of the tenant or tenants concerned
to accept the premises with larger area; and on the tenant or tenants declining to give such
consent the landlord shall be entitled to put the additional floor area to any permissible use;
(iv) that the work of demolishing the premises shall be commenced by the landlord not later than one
month, and shall be completed not later than three months, from the date he recovers possession
of the entire premises; and
(v) that the work of erection of the new building or new floor or floors shall be completed by the
landlord not later than fifteen months from the said date:
Provided that, where the court is satisfied that the work of demolishing the premises could not be
commenced or completed, or the work of erection of the new building or, as the case may be, the new
floor or floors could not be completed, within time, for reasons beyond the control of the landlord, the
court may, by order, for reasons to be recorded. extend the period by such further periods, not
exceeding three months at a time as may, from time to time, be specified by it, so however that the
extended period shall not exceed twelve months in the aggregate
(7) Where the possession of premises is recovered on the ground specified under clause (g), (h), (i) or (j) of
sub-section (1) and the premises are transferred by the landlord, or by operation of law before the tenant or
tenants are placed in occupation, then such transfer shall be subject to the rights and interests of such
tenants.
(8) For the purposes of clause (m) of sub-section (1), the standard rent or permitted increase in respect of the
part sub-let. shall be the amounts bearing such proportion to the standard rent or permitted increases in
Page 4 of 6
respect of the premises as may be reasonable having regard to the extent of the part sub-let and other
relevant considerations.
(9) Notwithstanding anything contained in this Act, where the premises let to any person include—
(i) the terrace or part thereof; or
(ii) any one or more of the following structures, that is to say, tower-rooms, sitting-out-rooms, ornamental
structures, architectural features, landings, attics on the terrace of a building, or one or more rooms of
whatsoever description on such terrace (such room or rooms being in the aggregate of an area not
more than one-sixth of the total area of the terrace); or
(iii) the terrace or part thereof and any such structure, and the court is satisfied that the terrace or structure
or terrace including structure, as aforesaid, are required by the landlord for the purpose of demolition
and erection or raising of a floor or floors on such terrace, the landlord shall be entitled to recover
possession of the terrace including such tower-rooms, sitting-out-rooms, ornamental structures,
architectural features, landings, attics or rooms, the court may make such reduction, if any, in the rent
as it may deem just.
(10) A suit for eviction on the grounds specified in clause (h), (i), (i) or (k) of sub-section (1) may be filed by the
landlord jointly against all the tenants occupying the premises sought to be demolished.
5.12.2 Pleadings in a Suit for Eviction
(1) The Tenanted premises should be described properly and completely.

(2) The breaches committed by the tenant such as causing nuisance, arrears of rent, sub-letting, etc. should
be stated.
(3) The details of the terms of tenancy should be enumerated.
(4) Whether termination notice was given and the details of the same.
(5) Any other ground on which eviction is sought such as
(a) Bona fide requirement of the landlord
(b) Property, subject matter of, acquisition, etc.
5.12.3 Defences in a Suit for Eviction
(1) No breach of tenancy agreement is committed. or

(2) The tenant is not in arrears of rent, or
(3) The defendant is not a tenant but co-owner of the property, etc.
5.12.4 Specimen
Specimen No. I
IN THE COURT OF SMALL CAUSE JUDGE, (Place)
AT__________
C.S. No.____________/20
The plaintiff above-named states most respectfully as under:—
(1) Description of Suit Property:—All that piece and parcel of premises consisting of four rooms with attached
W.C. block totally admeasuring 950 sq. ft situated on the first floor of the Bungalow by name “Chaitanya”
bearing CTS No. _________ in _________ Co-operative Housing Society, in _________ city.
Page 5 of 6
(2) The plaintiff states that the plaintiff is the owner and the landlord of the suit property described in para 1
above and the plaintiff has inducted the defendant in the suit property as a monthly tenant.
(3) That the plaintiff states that the plaintiff is residing in the same Bungalow “Chaitanya” on the ground floor
with his family members.
(4) The plaintiff submits that the defendant and his wife along with a group of 6 persons sing bhajans every
day from 9.00 PM to 11 PM and sometimes even during the early mornings. The plaintiff many a times has
requested the defendant, not to sing bhajans. The singing of bhajans by almost eight persons at a time
every evening is causing a lot of nuisance, annoyance and inconvenience to the plaintiff and his family
members. However, the defendant has paid no heed to the requests made by the plaintiff time and again.
(5) The plaintiff submits that even the neighbours namely Mr. ________ and Mr. __________ have told the
plaintiff that his tenant’s behaviour is causing a lot of nuisance to them also.
(6) That the plaintiff submits that the plaintiff’s son by name _______ is returning from UK as he has
completed his business commitments, and project. The plaintiff states that his son, his daughter-in-law and
grand-daughter are now going to reside with the plaintiff from _______ date. Thus, the plaintiff requires the
tenanted premises for the use and occupation of his family members.
(7) The plaintiff submits that the five rooms in which the plaintiff is residing will now be inadequate and
insufficient for his occupation and residence as now family members have increased. The plaintiff’s family
consists of 13 members. Therefore, the plaintiff requires the suit premises for his personal and bona fide
use and occupation.
(8) The plaintiff submits that the defendant has acquired one BHK flat at _______ in ________ Co-operative
Housing Society. That the defendant’s family consists of only four members out of which two are minor and
thus the property purchased by him is sufficient and suitable for him and his family members.
(9) The plaintiff states that the plaintiff has requested the defendant many a times to vacate the premises as
the plaintiff needs the suit premises for his personal and bona fide use and occupation but the defendant
has failed and neglected to vacate the suit premises.
(10) The plaintiff states that the defendant is in arrears of rent. The plaintiff states that the monthly rent for the
suit property is Rs. _____/- and the defendant has not paid the rent from _______month. Therefore, the
defendant is in arrears of rent for the last 8 months.
(11) The plaintiff submits that the plaintiff served a notice by RPAD to the defendant through his advocate Mr.
_________ and called upon the defendant to vacate and handover the suit premises. However, the
defendant has sent a false reply to the said notice after almost 2 months through his Advocate Mrs.
___________. Therefore, this plaintiff is now constrained a file eviction proceedings against the defendant.
Hence, the present suit.
(12) That the cause of action arose on ________date when the defendant first refused to vacate the suit
premises and failed and neglected to pay the rent. Hence, the suit is within the period of limitation.
(13) That the suit property is situated within the local limits of the jurisdiction of this court, hence this Hon’ble
Court has jurisdiction to try and decide this suit.
(14) The suit is valued at Rs. _______ for the reliefs claimed herein and the appropriate court fee stamp is paid
thereon.
(15) That the plaintiff therefore prays that—
(i) A decree of eviction be passed against the defendant.
(ii) The defendant be directed to handover physical, vacant, peaceful possession of the suit property to the
plaintiff.
(iii) The defendant be directed to pay the arrears of rent i.e. Rs. _________/- with interest at the rate of
_____% p.a.
(iv) Award costs of this suit to the plaintiff from the defendant.

Page 6 of 6
Verification
End of Document
6.1 Introduction
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER VI WRITTEN STATEMENT
CHAPTER VI WRITTEN STATEMENT
6.1 Introduction
Written Statement or WS is the reply filed by the defendant/defendants to the plaint. Written statement is the
pleading of the defendant in which every material fact of the plaint is dealt with specifically.
The defendant may admit or deny the claims, allegations or contentions made by the plaintiff but such admission
and denial must be specific and categorical. The written statement may also contain new facts in favour of the
defendant. The defendant may also raise preliminary objections, such as, jurisdiction of the court or bar of limitation
or maintainability of the suit in the written statement, etc. The principles governing pleadings apply to a written
statement also. Thus, the written statement must contain and contain only a statement in a concise form of the
material facts on which the defendant relies for his defence. It must disclose only facts and not the law. Likewise, in
a plaint, the written statement should state material facts only. It should be concise and precise. The written
statement must be divided in paragraphs duly numbered. A set off or counter claim must also be specifically
pleaded for in the written statement.
All defences which are permissible should be taken at the stage of submission of the written statement itself
because if the defendant fails to take up any plea, particularly which involves a question of fact, then he may not be
allowed to set up the plea at an advanced stage. A plea not raised in the written statement cannot be raised at the
time of trial of suit. Defendants must raise all pleas in written statement otherwise the plaint averments are deemed
to be admitted.1 A written statement may be divided into following parts:
(1) Heading
(2) Cause Title
(3) Averments, Submissions and Defences in the Written Statement
(4) Prayer
(5) Signature and Verification
1 Wungraoyo Tangkhul v Shanghar Tangkhul, (1996) 1 GLR 289.
End of Document
6.2 Time of Filing of the Written Statement
Dr Medha Kolhatkar
6.2 Time of Filing of the Written Statement

The defendant shall within 30 days from the date of service of summons to him, present a written statement for his
defence. The said period may be extended by the court but not beyond 90 days from the date of service of
summons, as stated in O VIII rule 1. If the defendant fails to submit the written statement within the stipulated
period, the court may proceed with the case without the written statement and may pronounce judgment on the
basis of the facts contained in the plaint against the defendant.
Order VIII rule 1 is directory and not mandatory, as it is a procedural law, which is meant for expediting the hearing
and not scuttling it.2
Filing of written statement—extension of time—The time limit under Order VIII Rule 1, has to be observed but in
exceptional circumstances in order to ensure that injustice is not done, the time can be extended. When the delay is
occasioned by reasons beyond the control of defendant, then court ought to permit the party to file written
statement beyond the period prescribed in Order VIII Rule 1 of the Code.3
Nature—The time schedule for filing written statement, provided by rule 1 of Order is directory. The rule 1 spells out
disability on the defendant and does not impose an embargo on Court’s power. Extension of time, however, is to be
granted only for exceptional circumstances.4
2 Mahendra Ram v Ashok Kumar Singh, AIR 2005 Pat 169.

3 Sandeep Thapar v SME Technologies Pvt Ltd, AIR 2014 SC 897.
4 Kailash v Naukhau, AIR 2005 SC 2441 (2452).
End of Document
6.3 Documents to be Filed by the Defendant
Dr Medha Kolhatkar
6.3 Documents to be Filed by the Defendant

The defendant shall produce along with the written statement all the documents on which he relies for his defences,
or claim for set-off or counter claim. If the document is not in the possession and power of the defendant, he shall
wherever possible state in whose possession or power the document is. If the defendant fails to produce the
document at the time of filing of the written statement then he cannot produce it without the leave of the court.
The defendant need not produce the following documents: [Order VIII rule 1A]
(i) Document produced for the cross-examination of the plaintiff witness or

(ii) Handed over to a witness merely to refresh his memory.
New facts must be specially pleaded. (Order VIII rule 2)
The defendant must raise by his pleading all matters which show the suit is not maintainable, or that the transaction
is either void or voidable in point of law and all such grounds of defence as, if not raised, would be likely to take the
opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud,
limitation, release, payment, performance, or facts showing illegality.
End of Document
6.4 Defences in Written Statement
Dr Medha Kolhatkar
(b) Dilatory pleas

(c) Objections in point of law
(d) Special defence
(e) Set-off
(f) Counter claim
6.4.1 Denials (General and Specific)
If the contentions, allegations in the plaint are not denied specifically then the same are taken to be admitted by the
defendant. The significance of General and Specific denials is discussed under the head of “Contents of Written
Statement.”
The defendant in written statement must categorically deny or dispute averments made in plaints, as evasive denial
would amount to an admission of the allegation made in the plaint.5
6.4.2 Dilatory Pleas
The defences in a written statement, such as, if the suit suffers from non-joinder of necessary parties, the suit is
barred by the rule of Res-Judicata, the plaintiff is a minor and therefore the suit should be filed through a next friend
etc., are all illustrations of dilatory pleas. Merely setting up the defence is not sufficient. The statement must be
supported by necessary facts and documents as may be applicable. For example, if the defendant sets up the
defence of non-joinder of necessary party, then the defendant ought to point out who the necessary party is.
All such pleas should be set up at the earliest, so that defects if any can be decided before proceeding with the trial
of the case on merits.
6.4.3 Objections in Point of Law
Objections in point of law such as—
The court has no territorial jurisdiction or pecuniary jurisdiction to entertain, try and decide the suit, or if the suit is
barred by limitation, or if the plaintiff is not a class I heir, etc., must be raised categorically depending on the facts of
each case. An objection in point of law should be framed in definite language.
6.4.4 Special Defence
The special defences provided under O VIII rule 2 of the Code of Civil Procedure are not exhaustive. Some special
defences by way of illustration are enumerated as follows:
Page 2 of 2
Act of God/Vis Major, accord and satisfaction, acquiescence, condition precedent—(a. imposed by statute, b.
imposed by party), Consideration—(a. total absence of consideration, b. inadequacy of consideration), Estoppel,
jurisdiction, Jus Tertii, acts of necessity, lien, limitation, waiver, etc.
Any special defence should also be set up clearly in the written statement, such as, “How the transaction in dispute
is void”, etc.
5 Jaspal Kaur Cheema v Industrial Trade Links, AIR 2017 SC 3995.
End of Document
6.5 Contents of the Written Statement
Dr Medha Kolhatkar

Components / Ingredients of Written Statements—
(1) Admitted Facts: The defendant must specifically state the facts which he admits from the plaint and must
do the same parawise.
(2) New Facts must be specifically pleaded: The defendant must specifically plead all the relevant facts
pertaining to the maintainability of the suit or that the transaction is either void or voidable in the eyes of
law, and all such grounds of defence and, if not raised, would be likely to take the opposite party by
surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release,
payment, performance or facts showing illegality.
(3) Denials must be specific: It shall not be sufficient for a defendant to generally deny the grounds in the
written statement as alleged by the plaintiff, but the defendant must deal specifically with each allegation of
fact of which he does not admit, except damages. Every allegation of fact in the plaint, if not denied
specifically, or by necessary implication, or stated to be not admitted in the pleadings of the defendant,
shall be taken to be admitted except as against a person under disability:
Provided that the court may in its discretion require any fact so admitted to be proved otherwise than
by such admission, where there is no specific denial of an allegation made in the plaint, there is no
duty cast on the Plaintiff to adduce evidence to prove that allegation.6
(4) Evasive Denial: Where a defendant denies an allegation of fact in the plaint, he must not do so evasively
but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not
be sufficient to deny that he received that particular amount, but he must deny that he received that sum or
any part thereof, or else set out how much he received.
Where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on
the basis of the fact contained in the plaint, except as against a person under a disability, but the court
may, in its discretion require any such fact to be proved.
Where the denial is general, evasive and not specific, allegations made in the plaint shall be deemed to
have been admitted.7
Mere delay is not sufficient to refuse amendment of pleadings or an additional written statement.
Furthermore, in case of Olympic Industries v Mulla Hussainy Bhai Mulla Akberally,8 the Hon’ble
Supreme Court held that even by filing an amendment or additional written statement, it is open to
defendant to add a new ground of defence or to substitute or alter the defence or even to take
inconsistent pleas in the written statement so long as the pleadings do not result in causing grave
injuries/irretrievable prejudice to plaintiff. It was further observed that mere delay is not sufficient to
refuse amendment of pleadings or an additional written statement. If there is delay in amendment of
Page 2 of 2
pleadings or filing of an additional written statement under O VIII rule 9 of the Code of Civil Procedure,
1908 where no prejudice was caused to the party opposing such amendment or acceptance of
additional written statement then it could be easily compensated by cost.
Apart from that, even if the examination of a prosecution witness or his cross-examination is over, then
also, it was open to the court to accept the additional written statement filed by the other party by
putting some cost penalty for the delay.
6 KA Louiz v AA Augustine, AIR 2005 Ker.

7 Radhabai K Vernekar v Gourawwabai S Bukha, 2001 (2) Bom LR 241 (Bom).
8 Olympic Industries v Mulla Hussainy Bhai Mulla Akberally, [2009] 15 SCC 528.
End of Document
6.6 Set-off
Dr Medha Kolhatkar
6.6 Set-off
Set-off means a claim which is set up against another. It is a cross claim which partially offsets the original claim. It
is an extinction of debts of which two persons are reciprocally debtors to one another by the credits of which they
are reciprocally creditors to one another. Where there are mutual debts between the plaintiff and the defendant, one
debt may be settled against the other [Concise Oxford English Dictionary (2002), p 1312]. Therefore, set-off
denotes mutual discharge of debts.
Example—Where A files a suit against B for recovery of Rs. 1,00,000/- but B already holds a decree of Rs. 50,000/-
against A, the defendant, i.e., B may plead for the set-off of the claim made by the plaintiff A.
Set-off can be claimed only in a suit for recovery of money.
The following conditions must exist for the applicability of the rule:
(a) Suit must be for recovery of money.

(b) The sum of money must be ascertained.
(c) It must be legally recoverable from the plaintiff.
(d) It must not exceed the pecuniary jurisdiction of the court.
(e) Both parties must fill the same character as they fill in the plaintiff’s claim.
(f) The claim must be made at the first hearing unless permitted by the court to do so afterwards.
6.6.1 Forms of Set-off
Set-off is of two types:—
(1) Legal Set-off

(2) Equitable Set-off
(a) Legal set-off is for an ascertained sum of money and O VIII rule 6 deals with legal set-off. Equitable
set-off may be allowed even for an unascertained sum of money.
(b) Legal set-off is claimed as of right and subject to above conditions the court is bound to entertain and
adjudicate it. Equitable set-off cannot be claimed as of right and the court has discretion to refuse the
same.
(c) In legal set-off, the cross demands may not arise out of the same transaction. However, in case of
equitable set-off the same can be allowed only when the cross demands arise out of the same
transaction. For example, claim to set-off a sum representing loss due to plaintiff’s breach in a suit by
the latter for price of goods.
(d) In a legal set-off it is necessary that the amount claimed as set-off must be legally recoverable and
should not be time barred. However, in case of equitable set-off a claim may be allowed even if it is
time barred when there exists a fiduciary relationship between the parties.
Page 2 of 2
6.6 Set-off
End of Document
6.7 Counter Claim
Dr Medha Kolhatkar
6.7 Counter Claim

The term counter claim means a claim which is raised by the defendant against the claim of the plaintiff in the same
suit. It is also described as a cause of action accruing to the defendant against the plaintiff.
A counter claim is substantially a cross action, not merely a defence to the plaintiff’s claim. Thus, in a counter claim
the defendant can set up any right or claim against the plaintiff which arises before the defendant has delivered his
defence or before the time limited for delivering his defence has expired. A counter claim has to be treated as a
plaint and is governed by rules applicable to the plaints.
A counter claim has to be treated as a cross suit which shall contain all the features of a regular suit. A counter
claim can be entertained against the plaintiff and not against a co-defendant. Just as in case of plaint, the
defendant is required to pay the appropriate court fee stamp on his counter claim.
End of Document
6.8 Drafting of Written Statement
Dr Medha Kolhatkar
6.8 Drafting of Written Statement

(1) Written statement just like the plaint, needs to be drafted very carefully. First the plaint should be scrutinised and
studied thoroughly along with the documents annexed to the plaint. The written statement starts with the denials of
the averments/contentions made in the plaint, which according to the defendant are not true and correct.
(2) Where the defendant denies an allegation of the fact in the plaint, he must not do so evasively. The
averments/allegations made in the plaint, if are not denied specifically, will be construed as admitted.
(3) Every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not
admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability;
provided that the court may in its discretion require any fact so admitted to be proved otherwise than by such
admission [O VIII rule 5(1)].
(4) Written statement should be given the same title as the plaint. Then the general and specific denials should be
made on the averments made in the plaint. After the denials the defences should be pleaded as applicable to the
case.
(5) No court fee is required to be paid on the written statement (except in case of counter claims).
End of Document
6.9 Defences which can be Set up in Various Suits
Dr Medha Kolhatkar

The defences stated below for each type of suit can be set up singly or in contribution of two or more defences. The
defences given below are not exhaustive. Depending on the facts of the case additional defences also can be set
up.
6.9.1 Defences in a Suit for Specific Performance
(1) That the defendant has not entered into any agreement with the plaintiff, or
(2) That the plaintiff has not performed his part of the obligation/s under the contract, or
(3) That the plaintiff has been guilty of fraud, or
(4) Inadequacy of consideration, or
(5) That the plaintiff was not ready and willing to perform his part of the contract, or
(6) That the defendant is unable to perform contract as the property agreed to be sold by him has been
attached by the court, or
(7) That the plaintiff’s claim is barred by limitation, etc.
6.9.2 Defences in a Suit for Eviction
(1) That no nuisance or annoyance has been caused by the defendant to the plaintiff, or
(2) The defendant is not in arrears of rent as claimed by the plaintiff or otherwise, or
(3) The defendant has not acquired any suitable accommodation as alleged by the plaintiff or otherwise, or
(4) The defendant submits that the defendant has not committed any breach of the terms of tenancy
agreement, and has regularly paid electricity bills and water cess, etc., or
(5) The defendant has used the property only for the purpose for which it was let.
6.9.3 Defences in a Suit for Dissolution of Partnership
(1) The defendant is not guilty of misappropriation of any partnership money nor he has withdrawn any amount
secretly, or
(2) The defendant is not guilty of any misconduct, or
(3) The defendant has not used any confidential information of the partnership business for his personal gains,
or
(4) The defendant had withdrawn an amount of Rs. _______/- from the firm’s account with the prior consent
and approval of the other partner for some personal reason (i.e.), or
(5) The defendant partner has not set up any business in competition with the _______ Partnership firm’s
business.
Page 2 of 3
6.9.4 Defences in a Suit on a Promissory Note
(1) The defendant admits the promissory note executed by him and that he has not paid as per the promissory
note, however, the defendant denies that any interest was payable under the said promissory note, or
(2) The plaintiff has tampered with promissory note and has materially altered the promissory note. Hence, the
suit is liable to be dismissed.
6.9.5 Defences in a Suit for Cancellation of Instrument
(1) The defendant states that, the instrument dated _____ i.e. the power of attorney is legal, valid and binding
and the plaintiff has signed the same out of his free will and without any fraud, coercion, etc., or
(2) The defendant states that, the defendant has paid huge sum of money to the plaintiff for the suit properties
and only on receipt of the same, the plaintiff executed irrevocable power of attorney thereby, delegating his
power absolutely to develop the suit properties and enter into Sale Deed with the prospective purchasers,
or
(3) The said power of attorney is duly registered as per section 17 of the Registration Act.
(4) Emphasise and justify the validity of the instrument for which the plaintiff is seeking cancellation.
(5) Estoppel
6.9.6 Defences in a Suit for Defamation
(1) The defendant submits that, whatever is stated by the plaintiff is not true and correct and the said
statements made by the defendant are true and correct to the best of his knowledge and hence no
defamation is committed, or
(2) The defendant states that, the defendant has no intention to commit any act of defamation against the
plaintiff, his article published in ____ newspaper dated ____ is a fair and bona fide comment, or
(3) The defendant pleads that the act is governed by various privileges.
6.9.7 Defences in a Suit for Malicious Prosecution
(1) The defendant submits that, the defendant has not brought the alleged action against the plaintiff
maliciously or without any reasonable and probable cause, or
(2) The defendant submits that, the defendant has filed a criminal case against the plaintiff based on true,
correct and valid grounds, or
(3) The defendant states that, under the circumstances wherein this defendant prosecuted the plaintiff, the
defendant had a reasonable and probable cause for believing the truthfulness of the plaintiff’s alleged acts,
or
(4) That the damages claimed by the plaintiff are not direct but too remote hence suit deserves to be
dismissed in toto.
6.9.8 Defences in a Suit for Negligence
(1) The defendant has not committed any act of negligence, or

(2) The defendant did not owe any duty of care towards the plaintiff.
(3) The plaintiff is guilty of contributory negligence, or
(4) The act in question occurred due to vis major, such as unprecedented storm and rainfall and thus, the
defendant could not have foreseen the incident/act, or
(5) The defendant is not guilty of breach of duty to care and inspite of reasonable care and caution, the mishap
has occurred and the same could not have been reasonably foreseen under ordinary course of events.
(6) The defendant is not guilty of deficiency of services.
6.9.9 Defences in a Suit relating to Nuisance

Page 3 of 3
(1) The defendant states that, the defendant has not interfered with the right to use and enjoyment of the
property of the plaintiff in any manner as alleged or otherwise, or
(2) The defendant states that, the plaintiff has exaggerated and leveled false allegations against this
defendant, or
(3) The defendant states that, the defendant is entitled to pursue his profession, trade or calling and the
plaintiff has no legitimate right to object to the same.
(4) The defendant states that, the plaintiff is an oversensitive person and has exaggerated and coloured the
actual facts.
6.9.10 Defences in a Suit for Partition
(1) The defendant states that, private partition between the parties had already been made orally on ____ date
and in furtherance of the same, the parties are enjoying their property separately, or
(2) The defendant states that, the plaintiff was given an amount of Rs. ____/- by cash on _______ date and
family jewelry worth Rs. __________/- as he was not interested to manage the agricultural joint property,
or
(3) The plaintiff has signed and has acknowledged the said amount and jewelry and therefore now has no right
to demand partition of the agricultural land or
(4) The properties were and are not joint.
6.9.11 Defences in a Suit for Trespass to Land
(1) The defendant states that, the defendant entered on the property only on the consent of the plaintiff, i.e., by
licence or grant, or
(2) The defendant states that, the defendant entered the premises to exercise easementary rights, or
(3) The defendant states that, the defendant entered the premises out of necessity, or
(4) The defendant states that, the defendant entered under the authority of law such as inspection of
premises, execution of legal process, etc., or
(5) The defendant states that, the defendant entered for abatement of nuisance.
Following are the specimens of written statements:
In the written statement, the specific denial of each and every averment made by the plaintiff in the plaint should be
specifically and categorically denied and thereafter, the defendant should proceed with his plea, that is his set of
facts and the defences which he intends to set up. No court fee stamp is payable on a written statement. However,
where a counter claim is made in the written statement, then, on the value of the counter claim the necessary court
fee stamp is to be paid.
(In cases where damages are claimed and the defendant disputes his liability to damages, he must deny the
agreement or the alleged breaches, or show whatever other ground of defence he intends to rely on, e.g., the
Indian Limitation Act, accord and satisfaction, release, fraud, etc.)
End of Document
6.10 Specimen
Dr Medha Kolhatkar
6.10 Specimen
Specimen No. I
IN THE COURT OF SMALL CAUSES JUDGE,_____
At ___
C.S. No. _______/20_______
Written Statement on behalf of the defendant
The defendant most respectfully submits as follows:
1. The suit of the plaintiff is not legal, not valid and hence not tenable at law.
2. The defendant generally denies all the contentions, allegations, submissions made in the plaint except
those which are specifically admitted hereinunder.
3. The contents in paras 1 and 2 of the plaint that the defendant is a monthly tenant with respect to the suit
property, is substantially true and correct and hence admitted by this defendant.
4. The contents in para 3 that the defendant is guilty of causing nuisance and annoyance to this plaintiff and
other neighbours is not true and correct and hence denied by this defendant. All allegations that this
defendant throws parties and get together bashes which causes nuisance is not true and correct hence
denied by this defendant. It is not true to say that the defendant does not follow parking rules of the society.
The defendant submits that this defendant has and is abiding by the rules and regulations of the ________
Housing Society.
5. The contention in para 4 that the defendant picks up quarrel every now and then with the security guards,
gardener without any just cause and reason, etc. and that the plaintiff has received complaints in this
regard from the chairman of the ________Society is not true and correct hence denied by this defendant.
6. The allegations in paras 5 and 6 that defendant has not paid maintenance charges of Rs. _________ to
the Society is not true and correct as alleged and as is tired to be made out and hence the same are
categorically denied by this defendant.
7. The contentions in paras 7 and 8 that plaintiff requires the suit property for his personal use and occupation
and that the plaintiff bonafidely needs the suit property for his family and that he has no suitable alternate
accommodation is not true and correct and hence the same is denied.
8. The contentions in para 9 that the defendant has not kept the suit property in good and proper condition is
not true and correct hence denied by this defendant.
9. The contentions in para 10 that the plaintiff had served notice dated ____ on this defendant thereby calling
upon the defendant to vacate the suit premises is true and correct and hence admitted. However, the
Page 2 of 3
6.10 Specimen
defendant vehemently denies the contents of the said notice dated ____ and the plaintiff be put to strict
proof thereof. The further contents in para 10 that the defendant has sent a false reply to the said notice
dated ____ is not correct as alleged and as is tried to be made out, except the fact of sending the notice
reply and the contents thereof.
10. The defendant denies para nos. 11, 12 and 13 of the plaint. The defendant submits that no cause of action
of whatsoever nature has arisen against this defendant.
Without prejudice to whatever is stated herein above without prejudice to any of the rights of this
defendant, this defendant states and submits as follows:
11. The defendant submits that this defendant has never caused any nuisance and annoyance to anybody.
The defendant on _____ date celebrated the birthday of his daughter_____. But no nuisance was caused
as only 22 guests were invited and the birthday party ended by 10:30 pm. The same can be verified from
the recording of the CCTV cameras of the Society. The defendant submits that on _____ date there was a
get together at his place as his wife won an award for _____ wherein only 20 people were invited. Other
than these two events this defendant has had no parties or functions at his flat.
12. The defendant submits that the plaintiff instigates the security guards and other society staff to behave
rudely with this defendant but inspite of all this, the defendant has been ignoring their rude behavior all
along.
13. The defendant submits that defendant had left the maintenance cheque in the society’s drop box which is
the usual practice followed by all the members of the society. However, the said cheque got misplaced.
When the defendant learnt about the same, he issued another cheque but was told that the plaintiff has
paid the said amount. Thereafter the defendant paid the said amount in cash to the plaintiff on ______date.
14. The defendant submits that the plaintiff is not in need of any accommodation for himself or his family
members. The plaintiff is a greedy person and in order to get more rent the plaintiff is making these false
allegations.
15. The defendant contends that this defendant has and is abiding by all the terms and conditions of the
tenancy agreement dated ______ including the parking rules, keeping the suit property in good and proper
condition, paying rent and other charges as per the said agreement.
16. The defendant therefore most humbly prays that:
a. Dismiss the suit of the plaintiff;
b. Award costs to the defendant from the plaintiff
c. Pass any other just and equitable order as deemed fit in the interest of justice
Date_____ Sd of defendant
Place_____ Adv. for the defendant
Verification
I Mr. ___________Age_______ Occupation _______ do hereby state and verify that the contents in this written
statement are true and correct and to the best of my belief, information and knowledge. The same is verified by me
on this ______ day of 20_____ at _______ (Place).
Signature of Defendant
Specimen No. II
Written statement in the suit for recovery of price for goods sold and delivered
IN THE COURT OF CIVIL JUDGE SR. DIV, Place______
AT __________
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6.10 Specimen
C. S. No.__________/ 20___
Written Statement on behalf of the defendant
This written statement on behalf of the defendant is as follows:—
(1) That the suit of the plaintiff is not legal, not valid and hence not tenable at law.
(2) That the defendant generally denies the contentions, allegations made in the suit except those which are
specifically admitted herein below:
(Now deny the material facts from the plaint parawise and for this please refer to the detailed written
statement in the Specimen I).
Without prejudice to whatever is stated herein above and without prejudice to any other right of this
defendant the defendant says and submits as under:—
(a) The defendant states that, the plaintiff has not supplied the goods/equipment as per agreed
specifications (enumerate what specifications were agreed upon and how the plaintiff has not complied
with the same).
(b) The defendant states that, the plaintiff had agreed to successfully complete the installation and
commissioning of the equipment but has failed to do so and it is the plaintiff who has committed breach
of contract.
(c) The defendant states that, the defendant had paid an amount of Rs. _________/- at the time of placing
of the Purchase Order (PO) dated ____________ and the defendant has not paid the Balance Amount
under the PO as the plaintiff has not fulfilled the terms and conditions of the PO.
(On similar lines other defences can be set up such as goods do not match the sample,
description, delay in supply of goods, defective goods, failure to insure the goods, etc.)
End of Document
CHAPTER VII CIVIL APPLICATIONS AND EXECUTION PETITION
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER VII CIVIL APPLICATIONS AND EXECUTION
PETITION

CIVIL APPLICATIONS
End of Document
7.1 Introduction
Dr Medha Kolhatkar
PETITION
7.1 Introduction
During the course of litigation, the litigating parties are required to move various applications before the court such
as adjournment application, injunction application, etc. It is therefore necessary to know the relevant provisions
under which various civil applications can be made and how to draft such applications.
Civil Procedure Code provides for various interim orders that may be passed during pendency of the suit. To obtain
such interim or interlocutory orders, the party to the suit is required to move civil application/s before the court. Such
applications are also called as interlocutory applications.
The object of such interim order is to protect the rights of the parties pending the final disposal of the suit.
An interlocutory application means an application to the court in any suit, appeal or proceeding already instituted in
such court other than an application for execution of a decree or order or review of judgment or for leave to appeal.
The expression “interim” means “for the time being,” “temporary,” “not final.” Some of the interim applications are
dealt with in this chapter.
An affidavit is to be filed in support of interim application. The contents, averments in an interim application are
proved with the help of an affidavit and documents produced by the party in support of the same.
End of Document
7.2 Contents of Civil Application
Dr Medha Kolhatkar
PETITION
7.2 Contents of Civil Application

Every civil application should be drafted carefully. The applicant is not required to reproduce the pleadings again in
the interim application. The application should state the reasons as to why the applicant is entitled to certain interim
reliefs, pending the final disposal of the case.
The application should highlight the harm, injury that may be caused if interim relief is not granted. The application
should be supported by all relevant documents and affidavit.
End of Document
7.3 Reply to Interim Application
Dr Medha Kolhatkar
PETITION
7.3 Reply to Interim Application

Reply to interim applications must be filed along with affidavit in support of the reply. All the documents on which
the opposite party/defendant intends to rely must be filed along with the reply. No court fee stamp is required to be
paid on the reply filed to the interim applications.
In the reply to the interim application the party must not only deny the averments of the application, but must
contend and state as to how the applicant is not entitled to the interim relief sought against this opponent. For
example, in a reply to the application for the appointment of court commissioner to carry out local investigation, it
can be contended that the applicant is trying to collect evidence through court commissioner thereby passing on the
burden of proof to the court commissioner etc. In a reply to injunction application it may be contended that the
plaintiff/applicant has not come to the court with clean hands and hence is not entitled to the equitable relief of
temporary injunction. It may be contended that there is no prima facie case, no balance of convenience etc. in favor
of plaintiff/applicant. On similar lines reply can be drafted for other interim applications.
End of Document
7.4 Application for Adjournment
Dr Medha Kolhatkar
PETITION

Once the hearing of a case starts, such hearing shall be continued from day to day and the adjournment should be
granted only for unavoidable reasons.
7.4.1 Provision for Adjournment
Order XVII of Civil Procedure Code lays down the provisions regarding adjournments—
(1) The court may grant adjournment to the parties or any of them at any stage of the suit, if there exists
sufficient cause for the same.
(2) The court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of
them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more than three times to a party during the
hearing of the suit.
(3) In every such case the court shall fix a day for the further hearing of the suit and shall make such orders as
to costs occasioned by the adjournment or such higher costs as the court deems fit.
(4) The hearing of the suit once commenced, it shall be continued from day to day until all witnesses in
attendance have been examined, unless the court finds that, for the exceptional reasons to be recorded by
it, the adjournment of the hearing beyond the following day is necessary.
(5) No adjournment shall be granted at the request of a party, except where the circumstances are beyond the
control of that party.
(6) The advocate on record is busy in another court cannot be a ground for seeking adjournment.
7.4.2 Adjournment is not the Right of a Party
No adjournment shall be granted except where the circumstances are beyond the control of the party. The
adjournment shall be refused if:
(i) the advocate reported to be busy in another court

(ii) the pleader is sick or is unable to conduct the case and the applicant has sufficient time to engage another
pleader
(iii) the conduct of the party is dilatory
(iv) a party or his pleader is absent or not ready to examine or cross-examine the witness present in the court
(v) there is abuse of process in the court
(vi) an undertaking was given by the party on the earlier occasion to proceed with the matter
Page 2 of 3
(vii) inconvenience is caused to the opposite party or its witness.
7.4.3 Court Shall Impose Cost of Adjournment
While granting adjournment to any party, the court shall impose costs on the applicant/party occasioned by such
adjournment or a higher cost. The costs shall be paid by the party seeking adjournment to the opposite party. The
amount of costs shall be reasonable and commensurate with the costs incurred by the other side.
7.4.4 Specimen
Specimen No. I
IN THE COURT OF SMALL CAUSES JUDGE_____________
AT___________
C.S. NO.________/20____
Application for adjournment
This application on behalf of the defendant is as follows:—
(a) Today the abovementioned case is fixed for cross-examination of the defendant.
(b) The defendant is however unable to attend the court today as his son has met with an accident on
__________ date and is hospitalized. He is required to undergo surgery today and this defendant therefore
has to attend his son. Hence the defendant is unable to remain present before the Hon’ble Court for cross-
examination.
(c) It is therefore most humbly prayed that the case may please be adjourned and fixed to next suitable date in
the interest of justice.
Medical report and certificate are attached herewith.
Place________
Date ________ Advocate for Defendant
Specimen No. II
IN THE COURT OF CIVIL JUDGE, SR. DIVISION____________
AT ______________
SPECIAL C.S. NO.__________/ 20___
Application for taking adjournment
This application on behalf of the defendant is as follows:—
(1) That today the abovementioned suit is fixed for cross-examination of the plaintiff.
(2) However, as the advocate on record for the defendant is not keeping well due to (state the illness). She is
unable to remain present and conduct the cross-examination of the plaintiff. (Medical Certificate is attached
herewith.)
Page 3 of 3
(3) It is therefore most humbly prayed that the case may please be adjourned today and fixed for hearing on
some suitable date in the interest of justice.
Place________
End of Document
7.5 Application for Service of Summons by Substituted Service
Dr Medha Kolhatkar
PETITION

After the suit is instituted by the plaintiff, the defendant has to be informed that a suit has been filed against him by
the plaintiff and the day/date on which he is required to appear in the court and answer the claim.
A “Summons’” is process issued from the office of a court of justice requiring the person to whom it is addressed to
attend the court for the purpose therein stated (Aiyar’s Law Dictionary).
Sections 27-29 and O V of the Code of Civil Procedure, 1908 enumerate the provisions regarding the “issue &
service of summons.”
Service of summons can be effectuated in various ways, as stated under Order V of the Code. One such mode of
service of summons is by substituted service.
7.5.1 Summons by Substituted Service
Order V Rule 20—
(1) Where the court is satisfied that there is a reason to believe that the defendant is keeping out of the way for the purpose
of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the court shall order
the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some
conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or
personally worked for gain, or in such other manner as the court thinks fit.
(1A) Where the court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be
a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided,
carried on business or personally worked for gain.
(2) Effect of substituted service—The service substituted by order of the court shall be as effectual as if it had been made
on the defendant personally.
(3) Where service substituted, time for appearance to be fixed—Where the service is substituted by order of the court, the
court shall fix such time for the appearance of the defendant as the case may require.
Where the defendant with ulterior motives and mala fide intentions avoids the service of summons, the plaintiff can
take help of the aforesaid provision to serve summons on the defendant. Unless and until summons are duly
served, the hearing of the proceedings cannot commence.
7.5.2 Specimen
Page 2 of 2
Specimen No. I
IN THE COURT OF CIVIL JUDGE, SR. DIVISION, ________
AT _________
C.S. No. _______/20___
Application for service of summons by substituted service.
The applicant/plaintiff above named most humbly submits as follows:—
(1) That the plaintiff has filed the accompanying suit for declaration and injunction and for various other reliefs
against the defendant herein.
(2) That the plaintiff submits that the defendant/opponent is mischievously and with mala fide intentions is
trying to avoid the service of summons.
(3) That on ________ date when the plaintiff tried to serve the summons on the defendant, bailiff was informed
that the defendant is not at home and would back by 6 O’clock (pm). The bailiff then again went with the
copy of summons but was told that the defendant is not at home.
(4) That thereafter, on ______ date and on _______ date the house of the defendant was found locked and
therefore the summons could not be served.
(5) The plaintiff submits that the defendant is trying to avoid the service of summons by hook or crook and
therefore this plaintiff now seeks permission of this Hon’ble Court to serve summons by substituted service,
i.e., by affixing a copy of summons upon some conspicuous part of the house or in such manner as the
court thinks fit. The bailiff report is also annexed herewith.
(6) It is therefore most humbly prayed that—
(a) The plaintiff may please be allowed to serve the defendant with summons under O V rule 20 of CPC
(substituted service).
(b) Pass any other just and equitable order as deemed fit in the interest of justice.
Place________
End of Document
7.6 Application for Appointment of Court Commissioner
Dr Medha Kolhatkar
PETITION

Order XXVI and sections 75 to 78 of the Code of Civil Procedure, 1908, lay down the provisions regarding grounds
for appointment of Court Commissioner.
As per Section 75 of Civil Procedure Code, a court may issue commissions for any of the following purposes:—
(a) to examine any person;

(b) to make a local investigation;
(c) to adjust accounts;
(d) to make a partition;
(e) to hold investigation;
(f) to conduct sale;
(g) to perform any ministerial act
7.6.1 Court to Give Commissioner Necessary Instructions
Order XXVI rule 12—
(1) Court shall furnish the commissioner with such part of the Proceeding and such instructions as appear necessary, and
the instructions shall distinctly specify whether the commissioner is merely to transmit the proceedings which he may hold
on the inquiry, or also to report his own opinion on the point referred for his examination.
7.6.2 Evidentiary Value of Court Commissioner’s Report (Order XXVI Rule 12(2))
The Proceedings and report (if any) of the commissioner shall be the evidence in the suit, but where the court has
reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit. The court commissioner’s
report can be taken as evidence in the suit, however, if the court feels that there are discrepancies in the same, the
court may reject the same. The court commissioner’s report is not binding on the court.
A report of the commissioner would furnish prima facie evidence of the facts and data collected by the
commissioner. It will constitute an important piece of evidence and cannot be rejected on sufficient grounds.1
7.6.3 Significance of Court Commissioner’s Report
In a dispute regarding identification of land the report of the court commissioner stated that the land handed over to
the decree holder is different from the land in respect of which decree was passed. The said report of the
commissioner was not challenged by either of the parties. The local investigation report of the court commissioner
would assume great significance and would be a relevant piece of evidence on record. The trial court erred in
ignoring the said report and the finding of the trial court that the land in disputeis one and the same in respect of
Page 2 of 3
which decree was passed is incorrect.2
7.6.4 Necessity for Appointment of Survey Commissioner
In a suit for declaration of title and permanent injunction, the pleadings show that there is boundary dispute between
the parties then for the final and effective adjudication of dispute, measurement of plot by survey commissioner is
necessary.3
7.6.5 Specimen
Specimen No. I
IN THE COURT OF SMALL CAUSES COURT (PLACE)
AT (PLACE)_________
C.S. NO. ___________/20___
Application for appointment of court commissioner
The plaintiff abovenamed begs to state most respectfully as under:—
(1) The plaintiff has filed the present suit against the defendant for eviction and other incidental reliefs.
(2) The plaintiff has contended in para 6 of the plaint that, the defendant has carried out permanent
construction on the leased bungalow without the written consent of the plaintiff and in breach of the
stipulations of the lease deed dated ____ executed between the plaintiff and defendant.
(3) The defendant vide his written statement at Ex.__________ in paragraphs 10 and 12 has denied the same
and has contended that the changes executed by him are of a temporary nature and therefore no prior
consent of this plaintiff was required.
(4) The plaintiff humbly submits that, plaintiff has already produced the photographs of the permanent
construction carried by the defendant at Ex. 3(3).
(5) The plaintiff submits that a court commissioner be appointed to inspect the suit premises to investigate the
nature of construction.
(6) That the appointment of the court commissioner will not cause any prejudice to the defendant.
(7) The plaintiff submits that if court commissioner as prayed for is not appointed grave injustice will be caused
to the plaintiff.
(8) That the plaintiff therefore most humbly prays:—
(a) That a court commissioner be appointed to carry out the local inspection, i.e., to ascertain the nature of
construction
(b) Pass any other just an equitable order as deemed fit in the interest of justice.
Place________ Signature of the Plaintiff / Applicant
Date________ Sd. of the Plaintiff’s Advocate
1 Tushar Kanti v Savitri Devi, AIR 1996 SC 2752.

Page 3 of 3
2 Sanwal Ram v Ramjan, AIR 2016 Chh 48.

3 Nakhula Sahu v Suresh Chandra Beherdolai, AIR 2016 Ori 24.
End of Document
7.7 Application for Arrest Before Judgment
Dr Medha Kolhatkar
PETITION

The object of O XXXVIII is to prevent any attempt/mischief on the part of the defendant to defeat/obstruct the
judgment and decree that may be passed against him. The creditor can either seek arrest of the defendant subject
to rules 1 to 4 of O XXXVIII or attachment of the property of the defendant. (Order XXXVIII rules 5 to 12).
The courtourt must be satisfied before exercising powers under O XXXVIII that the plaintiff’s suit is bona fide and
that plaintiff’s cause of action is prima facie unimpeccable and that there are adequate materials to believe that
unless the power is exercised the defendant will remove himself from the jurisdiction of the court.
As per the provisions of O XXXVIII, rules 1-4 of the Code of Civil Procedure, 1908, the plaintiff or creditor can
approach the court for the arrest of the defendant or debtor, or for the attachment of his property, even before the
judgment.
7.7.1 Grounds
Order XXXVIII rule 1 of Code of Civil Procedure enumerates the grounds on which the plaintiff can seek arrest
before judgment of the defendant. Where the plaintiff apprehends that the defendant is likely to leave the country or
is moving out of the jurisdiction of the court or is trying to dispose off his property or is trying to obstruct the due
process of law, then the plaintiff can seek arrest of the defendant. If the defendant furnishes security, then no arrest
can be made. The object of the provision is to ensure that the final judgment and decree that may be passed
against the defendant, should not be merely a paper decree without any fruits to the plaintiff.
Order XXXVIII Rule 1 is as follows—
Where at any stage of a suit, other than a suit of the nature referred to in Section 16, clauses (a) to (d), the court is
satisfied, by affidavit or otherwise;
(a) that the defendant, with intent to delay the plaintiff, or delay the execution of any decree that may be
passed against him—
(i) has absconded or left the local limits of the jurisdiction of the court or
(ii) is about to abscond or leave the local limits of the jurisdiction of the court or
(iii) has disposed of or removed from the local limits of the jurisdiction of the court his property or any part
thereof or
(b) that the defendant is about to leave India under circumstances affording reasonable probability that the
plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed
against the defendant in the suit, the court may issue a warrant to arrest the defendant and bring him
before the court to show cause why he should not furnish security for his appearance:
Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any
sum specified in the warrant as sufficient to satisfy the plaintiff’s claim; and such sum shall be held in deposit by the further
Page 2 of 5
order of the court.
Order XXXVIII Rule 2 — Security
(1) Where the defendant fails to show such cause the court shall order him either to deposit in court money or
other property sufficient to answer the claim against him, or to furnish security for his appearance at any
time when called upon while the suit is pending and until satisfaction of any decree that may be passed
against him in the suit or make such order as it thinks fit in regard to the sum which may have been paid by
the defendant under the proviso to the preceding rule.
(2) Every surety for the appearance of a defendant shall bind himself, in default of such appearance, to pay
any sum of money which the defendant may be ordered to pay in the suit.
Order XXXVIII Rule 4—
Where the defendant fails to furnish security or to find fresh security after the original surety has been discharged from his
obligation by the court, the court may commit him to civil prison until the decision of the suit or where the decree is passed
until the decree has been satisfied.
Provided that no person shall be detained in prison under this rule in any case for a longer period than six months, nor for a
longer period than six weeks when the amount or value of the subject matter of the suit does not exceed 50 rupees:
Provided also that no person shall be detained in prison under this rule after he has complied with such order.
7.7.2 When Arrest and Attachment Made on Insufficient Ground
Section 95 of the Civil Procedure Code states the consequences when arrest is made on insufficient grounds.
Section 95 is as follows—
95. Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under
the last preceding Section,—
(a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or
(b) the suit of the plaintiff fails and it appears to the court that there was no reasonable or probable grounds for
instituting the same,
the defendant may apply to the court, and the court may, upon such application, award against the plaintiff by its order such
amount, not exceeding fifty thousand rupees, as it deems a reasonable compensation to the defendant for the expense or
injury (including injury to reputation) caused to him;
Provided that a court shall not award, under this Section, an amount exceeding the limits of its peculiar jurisdiction.
(2) An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or
injunction.
The remedy under this Section is optimal and an injured party can file a regular suit against the applicant for
compensation if he has not already sought relief under the aforesaid provision. Section 95 is an alternative remedy
in cases of wrongful obtainment of an injunction and it does not in any way interfere with the principles regulating
suits for damages for tort of malicious legal process.4
Page 3 of 5
The court may award compensation when it appears that;
(1) application was made on insufficient grounds or

(2) when the plaintiff fails in the suit and there was no reasonable or probable ground for instituting it.
7.7.3 Specimen
Specimen No. I
IN THE COURT OF CIVIL JUDGE, _____(Place)________
AT___(Place)_________
C. S. No._______/ 20___
Application for arrest before judgment
The plaintiff abovenamed states most respectfully as under:—
(1) That the plaintiff has filed the accompanying suit against the defendant inter alia for recovery of money,
breach of contract etc. and the plaintiff has sanguine hopes of success in the matter. The plaintiff craves
leave of this Hon’ble Court to read this application as part and parcel of the plaint to avoid repetition.
(2) That the plaintiff submits that an agreement dated _______ was executed between the plaintiff and the
defendant. The defendant has failed to perform the obligations under the said agreement. The plaintiff
states that this plaintiff has supplied the goods as per the specifications described in the agreement dated
______ and as per the purchase order dated ____. The plaintiff states that, the plaintiff has also adhered to
the delivery schedule meticulously. The defendant has acknowledged the supply of goods as per the
delivery schedule and as per the specifications. However, the defendant has failed to make the payments
as per the agreed terms. Therefore, the defendant is guilty of breach of contract.
(3) The plaintiff states that the defendant under one pretext or the other postponed the payment. The plaintiff
states that the defendant represented to the plaintiff that he intends to repeat the same order and therefore
the plaintiff spent a huge amount procuring the raw material to manufacture and supply the goods as
required by the defendant. The plaintiff states that the defendant never placed any purchase order and did
not even pay for the previous supplies. The defendant has paid only an amount of Rs. _________ as
advance.
(4) The plaintiff states that the defendant has duped many suppliers in this fashion and now is avoiding this
plaintiff. The plaintiff states that the defendant is liable to pay this plaintiff an amount Rs. _____ which is a
huge amount. The plaintiff states that the defendant is a very shrewd person and keeps threatening this
plaintiff of dire consequences if this plaintiff proceeds against the defendant in the court of law. That this
plaintiff is under constant pressure and stress. The plaintiff submits that the defendant has told this plaintiff
that the plaintiff may do anything but will never be able to recover anything from the defendant. The
defendant has also almost closed all his business activities.
(5) The plaintiff submits that the defendant is now trying to leave India. He visited the passport office on
_______. He is trying to obtain visa also.
(6) The plaintiff submits that the plaintiff has a strong case on merits against the defendant and if the
defendant uses his men and muscle power it will be very difficult for this plaintiff to attend the court and
prove his case. So also it appears that the defendant is likely to leave India. Hence under these
circumstances it is necessary to arrest the defendant before the judgment.
(7) That the plaintiff submits that if the defendant is not arrested then the final decree which will be passed
against the defendant would remain only a paper decree without any fruits to this plaintiff.
Page 4 of 5
(8) That the plaintiff submits that plaintiff is entitled to recover Rs. _____ from the defendant which is a huge
amount. That the plaintiff therefore submits that under the aforementioned facts and circumstances it is in
the interest of justice to arrest the defendant or direct him to pay an amount of Rs. _______ in the Court.
(9) It is therefore most humbly prayed as under:—
(a) Pass an order of arrest before judgment against the defendant or direct him to pay an amount of Rs.
_______ in the Court.
(b) Award cost of this application to the plaintiff from the defendant.
(c) Pass any other order as deemed fit in the interest of justice.
Place________ Plaintiff
Specimen No. II
IN THE COURT OF CIVIL JUDGE, SR. DIVISION,________
AT _________
C.S. No. _______/20____
Application for arrest before judgment
(Order XXXVIII rule 1 Civil Procedure of Code)
The application on behalf of the plaintiff is as follows:—
(1) That the plaintiff has filed the accompanying suit against the defendant for injunction, damages to the tune
of Rs. ---- and other reliefs. The plaintiff harbors sanguine hopes of success in the matter. The plaintiff
craves leave of this Hon’ble Court to read the contents of the plaint as part and parcel of this application.
(2) That the plaintiff submits that the defendant is an influential and wealthy person and can go to any extent to
delay the execution of the decree that may be passed against him.
(3) That the plaintiff has reliably learnt that on ______ date the defendant has obtained visa and now has
confirmed air tickets for himself and his family members of _________ Airlines to New York.
(4) The plaintiff submits that if the defendant succeeds in his design to go out of India and thereby to move out
of the jurisdiction of this Hon’ble Court grave injustice and hardship will be caused to this plaintiff. The
plaintiff submits that the very purpose of filing this suit will be frustrated and the final decree passed in favor
of this plaintiff will be merely a paper decree without any fruit to this defendant.
(5) That the plaintiff submits that this plaintiff has been receiving threatening calls, pressuring him to withdraw
the case forthwith or else face dire consequences. The plaintiff has managed to record one such call and
shall produce the said recording before this Hon’ble Court.
(6) The plaintiff therefore submits that, in view of the aforestated facts and circumstances, it is necessary to
arrest the defendant and put him in civil prison or direct him to deposit an amount of Rs. ________ in the
court.
(7) It is therefore most humbly prayed that:—
(i) A warrant for the arrest of the defendant be issued or in the alternative direct the defendant to deposit
an amount of Rs. _______ in the court.
(ii) Award costs of this application to the plaintiff from the defendant.
Page 5 of 5
Date ________ Advocate for Plaintiff
4 Bank of India v Lekhimoni Das, AIR 2000 SC 1172.
End of Document
7.8 Application for Attachment before Judgment
Dr Medha Kolhatkar
PETITION

The provisions regarding attachment before judgment are contained in O XXXVIII rules 5 to 12 of Code of Civil
Procedure
The plaintiff can seek attachment of the property of the defendant before judgment where the defendant is
attempting to defeat the enforcement and recovery of the decree that may be passed against him.
Contents of the Application:—
(1) In an application for attachment, before the judgment the plaintiff must plead as to how the defendant is
trying to defeat the decree that may be passed in favor of the plaintiff.
(2) The plaintiff shall state the necessary details of the property which is required to be attached and its market
value.
7.8.1 Grounds
If the defendant disposes off all his property during the pendency of the suit, then the very purpose of filing of the
suit may get defeated and the realisation of decree may fail. Thus, when the defendant is trying to dispose off the
property or is trying to remove the property wholly or partially from the jurisdiction of the court, the plaintiff may
apply for attachment before judgment.
This is a harsh remedy and must be resorted to only when the said grounds exist.
The grounds under which attachment can be sought are as follows:
Order XXXVIII rule 5—
(1) Where, at any stage of suit, the court is satisfied, by affidavit or otherwise that the defendant with intent to
obstruct or delay the execution of any decree that may be passed against him—
(a) To dispose of the whole or any part of his property, or
(b) Is about to remove the whole or any part of his property from the local limits of the jurisdiction of the
court,
the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified
in the order, to produce and place at the disposal of the court when required the said property or the value of the same or
such portion thereof as may be sufficient to satisfy the decree or to appear and show cause why he should not furnish
security.
(2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the
estimated value thereof.
Page 2 of 3
(3) The court may also in the order direct the conditional attachment of the whole or any portion of the property
so specified.
(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such
attachment shall be void.
The power under O XXXVIII rule 5 should be exercised very sparingly and with utmost caution otherwise it will
become an instrument of great oppression. Attachment before judgment is an extraordinary power and the court
may grant the same with care and caution. The power under O XXXVIII is a drastic one and the same should not be
granted on a mere assertion by the plaintiff that the defendant is attempting to dispose of whole or part of his
property or to remove whole or any part of his property from the jurisdiction of the court.
It is pertinent to note that direction for attachment before judgment passed without recording satisfaction as to the
existence of conditions laid down in O XXXVIII rule 5 is illegal.
Averments satisfying the ingredients of O XXXVIII rule 5 should be stated in the application for attachment before
judgment and the court should apply its mind before passing the requisite orders.5
The court should satisfy itself of the practical certainty of the plaintiff’s success and of the existence of grave danger
and of the real fear that the dishonest defendant undoubtedly liable is trying to dispose of the property with
dishonest intention.6
7.8.2 Specimen
Specimen No. I
IN THE COURT OF CIVIL JUDGE, SR. DIVISION, _______
AT ______
Spl. C.S. NO. ______ /20
Application for Attachment before Judgment
This application on behalf of the plaintiff is as under:—
(1) That the plaintiff has filed the accompanying suit against the defendant for the recovery of an amount of
Rs. 16,00,000 against the defendant and for various other reliefs. The plaintiff craves leave of this Hon’ble
Court to read the plaint as part and parcel of this application to avoid repetition.
(2) The plaintiff submits that the defendant had agreed to pay the said amount in four installments. However,
he has not paid even the first installment.
(3) The defendant is a proprietor of JC systems having his office at ____________ which is owned by this
defendant.
(4) The plaintiff submits that the defendant is now trying to dispose of the said office premises and his flat at
__________ and in pursuance of the same he gave Public Notice dated _________ in _____ newspaper.
(5) The plaintiff submits that if the defendant disposes of the said properties then the very purpose of filing the
present suit will be defeated and the judgment and decree passed in favour of the plaintiff will be rendered
infructuous and the plaintiff bank will suffer irreparable loss and damage.
(6) The plaintiff submits that the defendant has no other properties except his office at _________ and flat at
_________ which is fully described in para 4 of the plaint. The plaintiff craves leave of this Hon’ble Court to
read the contents of the plaint as part and parcel of this application.
(7) The plaintiff apprehends that the defendant may dispose of the property and is likely to leave India and
therefore, this is a fit and proper case to attach the property of the defendant.
Page 3 of 3
(8) The plaintiff humbly submits that, for the reasons stated hereinabove the defendant be ordered to furnish
such security as the court thinks fit and proper, and on his failure to do so, the property described in para 4
of the plaint be attached.
(9) The plaintiff has also produced a copy of the said public notice along with other relevant documents.
(10) It is therefore most respectfully prayed as follows:—
(i) The defendant be directed to furnish security to the tune of Rs. ______ or such security as the Hon’ble
Court thinks proper.
(ii) That the property i.e. flat no. _____ at _____ society and office premises at ________ be attached by
an order of this Hon’ble Court.
(iii) Award costs of the application to the plaintiff from the defendant.
(iv) Pass any other order as deemed fit in the interest of justice.
5 Nagpal Steel Ltd v Arjun Deve Verma, AIR 1998 P&H 293, 295.
6 Cosmopolitan Trading Corp v Engg. Sales Corp, AIR 2001 Raj 331 (333) : 2001 (4) WLN 6.
End of Document
7.9 Application for Temporary Injunction
Dr Medha Kolhatkar
PETITION

Injunction means an order by which a court refrains a party to suit from doing certain acts, deeds, etc. or compels a
party to the suit to perform certain acts, deeds etc. An injunction is an equitable relief.
7.9.1 Grounds for Grant of Temporary Injunction
Order XXXIX rule 1—
R. 1. Where in any suit, it is proved by affidavit or otherwise;
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the
suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his
creditors,
(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to
any property in dispute in the suit,
the court may by order grant a temporary injunction to restrain such act, or make such other order for
the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition
of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to
any property in dispute in the suit as the court thinks fit, until the disposal of the suit or until further
orders.
Order XXXIX rule 2 also gives power to the court to grant injunction to restrain repetition or continuance of breach.
(1) In any suit for restraining the defendant from committing a breach of' contract or other injury of any kind,
whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement
of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the
defendant from committing the breach of contract or injury complained, of, or any breach of contract, or
injury of a like kind arising cut of the same contract or relating to the same property or right.
(2) The court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an
account, giving security, or otherwise, as the court thinks fit.
While passing an interim order of injunction under O XXXIX, rule 1 of the Code, the Court is required to consider
three basic principles, namely:
1. prima facie case,

2. balance of inconvenience, and
Page 2 of 6
3. irreparable loss or injury.7
7.9.1.1 Strong prima facie case in favour of applicant
The applicant must satisfy the court that he has a strong prima facie case in his favour. If there is a bona fide
dispute raised by the applicant that there is a strong case for trial and probability of the applicant being entitled to
the relief claimed by him, then it can be inferred that there exists a strong prima facie case in favour of the
applicant.
7.9.1.2 Balance of convenience in favour of applicant
For the grant of temporary injunction in favour of the applicant the court ought to be satisfied that the balance of
convenience is in favour of the applicant. The expression “balance of convenience in favour of applicant” means
that greater hardship will be caused to the applicant as compared to the opponent if injunction as prayed for is not
granted. Thus the balance of convenience lies in favour of the party which is to be inconvenienced more.
7.9.1.3 Irreparable injury/loss to the applicant
The applicant for the grant of temporary injunction must also satisfy the court that if his application is not allowed he
will suffer irreparable injury/loss which cannot be compensated in terms of money. It is well to remember that
aforesaid three ingredients are to be proved on affidavits as envisaged under O XXXIX rule 1. The power given to
the courts to act on affidavits is unfettered and it is not subject to the provisions of O XIX rules 1 and 2. All the three
condition precedents must coexist for granting temporary injunction under O XXXIX rules 1and 2. If any of them is
missing, then temporary injunction applied for is to be rejected.8
While considering an application for grant of injunction, the Court will also take into consideration the conduct of the
parties. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to
deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The court will not
interfere only because the property is a very valuable one. Grant or refusal of injunction has very serious
consequences depending upon the nature thereof. The Courts dealing with such serious matters must make all
endeavors to protect the interest of the parties. For the said purpose, application of mind on the part of the Courts is
imperative.9
Is Writ Petition maintainable against order refusing interim injunction?
Writ Petition under Article 227 of the Constitution of India against order passed in civil court refusing to grant interim
injunction under O XXXIX rule 12, is maintainable.10
7.9.2 Specimen
Specimen No. I
IN THE COURT OF CIVIL JUDGE, SR. DIVISION, (PLACE)
AT—(PLACE)_______
Special C.S. NO.____________/ 20____
Application for temporary injunction
The plaintiff abovenamed begs to state most respectfully as follows:—
(1) That the plaintiff has filed the above mentioned suit against the defendants herein for partition, declaration
and permanent injunction and other reliefs.
(2) The plaintiff and defendant No. 1 and 2 are real/full brothers. Their father late Shri. _______ died on
__________ intestate leaving behind the suit properties more particularly described in paragraphs 2 and 3
Page 3 of 6
of the plaint and this plaintiff craves leave of this Hon’ble Court to read the plaint as part and parcel of this
application to avoid repetition.
(3) The plaintiff submits that the plaintiff is a government servant and is working as ______ at _______ and is
presently posted in Mumbai.
(4) The plaintiff submits that the defendant No. 1 and 2 acting in collusion have fraudulently obtained the
signatures of this plaintiff on certain blank papers after the demise of their father. The defendants
represented to this plaintiff that the said signatures were required to submit certain applications, forms etc.
so as to delete the name of late Mr. _______ (i.e., father of this plaintiff and the defendants) from the
record of rights and to make further other compliances. The plaintiff completely relied on the
representations made by the defendants and signed certain blank papers and forms.
(5) The plaintiff states that, this plaintiff when demanded his share in the properties the defendant No. 1 and
No. 2 showing their true colors, refused to part away with any income earned from the properties and are
now obstructing the plaintiff from entering the suit properties.
(6) The plaintiff requested the defendant No. 1and 2 to carry out partition of the suit properties amicably. But
the defendant No. 1 and 2 have paid no heed to the repeated requests made by this plaintiff. The plaintiff
visited Pune on ___________ date and on ____________ date; however to his utter shock and surprise
the defendants did not allow him to enter the suit properties.
(7) The plaintiff has reliably learnt that the defendants are trying to either mortgage or lease the suit properties
without the consent of this plaintiff. The plaintiff has produced along with this application a copy of
advertisement in the daily newspaper “Prabhat” offering the suit properties for lease.
(8) The plaintiff submits that if the defendants succeed in their design to create third party interest in the suit
properties, great loss, injury and injustice will be caused to the plaintiff.
(9) The plaintiff has produced along with this application extracts of record of rights wherein the plaintiff has
been shown as the co-owner of the property along with defendant No. 1 and 2.
(10) The plaintiff has a strong prima facie case in his favour. If defendants are not restrained by an order of
temporary injunction from alienating or creating any third party interest in the suit properties then the final
judgment and decree passed in favour of this plaintiff will be merely a paper decree without any fruits to
this plaintiff and the plaintiff will suffer irreparable loss, which cannot be compensated in terms of money.
(11) The plaintiff further submits that the balance of convenience is in his favour and no hardship will be caused
to the defendant if injunction is granted to the plaintiff as prayed for.
(12) The plaintiff therefore most respectfully prays that—
(i) The defendant be restrained by an order of temporary injunction from alienating, damaging, wasting or
creating any third party interest or dealing with the suit property in any manner either themselves or
through their agents, servants, employees, power of Attorney holders, family members etc. pending the
final disposal of this suit.
(ii) Award costs of this application the plaintiff
Specimen No. II
IN THE COURT OF CIVIL JUDGE, JR. DIVISION, (PLACE)
AT (PLACE)
R.C.S. NO.___________ / 20___

Page 4 of 6
Application for temporary injunction
The plaintiff abovenamed states most respectfully as under:—
(1) That the plaintiff has filed the accompanying suit against the defendant herein for declaration and
injunction. That the plaintiff submits that, the plaintiff harbours sanguine hopes of success in the matter.
However, it will take considerable time to decide the suit on merits. That the purported illegalities
committed by the defendant are such that if the defendant is not restrained by an order of interim
injunction/temporary injunction, then the very purpose of preferring this application as well as the suit will
be frustrated and the final decree in favour of the plaintiff will only be a paper decree without any fruit to
this plaintiff. Hence this application.
(2) Description of property: All that piece and parcel of land together with building, structures and sheds
standing thereon, bearing plot No.____________ admeasuring about __________ sq. m. Within the
jurisdiction of sub-Registrar, Taluka _________, District ________, within the limits of ________ Municipal
Corporation and bounded as follows:
On or towards East: __________________
On or towards North: __________________
On or towards West: __________________
On or towards South: __________________
(3) That the plaintiff says and submits that the plaintiff is carrying on the business of running a restaurant and
lodging in the said premises for last ______ years under the name and style as ‘_________’. That the said
Hotel was earlier known as ___________.
(4) That the plaintiff says and submits that the plaintiff is the owner of the suit premises.
(5) That the plaintiff says and submits that plaintiff has obtained necessary permission/licenses from
concerned competent authorities such as Shop Act licence, licence under the Bombay Police Act, 1951
and Health licence from the corporation. That, the plaintiff submits that the said licence have been renewed
periodically.
(6) That the plaintiff says and submits that the plaintiff is carrying on the business of running restaurant by
following all rules, regulations as laid down by law or as per the directions of the defendant corporation and
has not committed any breach of any condition, rules, regulations etc. at any time.
(7) That the plaintiff says and submits that the owners of plot No._________ are trying to create
obstacles/hindrances in the smooth running of the said restaurant business with ulterior motives and mala
fide intentions and only to harass this plaintiff.
(8) That the plaintiff says and submits that the defendant at the instance and instigation of the owners of the
adjoining property i.e. Plot No.________ acting in collusion with them have issued a notice / letter to this
plaintiff dated ________ received by the plaintiff on __________, wherein have alleged that the plaintiff has
constructed certain sheds and is using the said sheds as pantry (Bhatarkhana) without valid permission /
licence and which is causing health hazards to the neighbouring occupiers and have called upon the
plaintiff to show cause as to why his licence should not be cancelled. That, the plaintiff has replied the
letter/notice on _____date.
(9) That the plaintiff says and submits that the said notice / letter issued by the defendant corporation is false,
not legal and valid and a misstatement of facts. That the plaintiff says and submits that the said sheds are
in existence for last ________ years and the plaintiff has also been paying property tax in respect of the
same.
Page 5 of 6
(10) That the plaintiff says and submits that the defendant corporation has further threatened in the said notice
that the defendant corporation would cancel the licence of this plaintiff.
(11) That the plaintiff says and submits that, the said sheds are in existence with prior permission and
intimation. That, the defendant corporation has even allotted ‘A’ Grade to then plaintiff’s restaurant on
________. That the officers of the defendant corporation had then visited the suit premises inspected the
same and had thereafter granted ‘A’ Grade to the plaintiff’s restaurant.
(12) That the plaintiff says and submits that, now the defendant corporation acting in collusion and under the
colourable exercise of their power and authority are trying to illegally cancel this plaintiff’s licence.
(13) That the plaintiff says and submits that the correspondence between the plaintiff and defendant corporation
and the records maintained by the defendant corporation reveals that the said sheds are in existence since
the starting of the restaurant and is not causing any health hazards as alleged by the defendant
corporation.
(14) That the plaintiff says and submits that the plaintiff has renewed the licence to run the restaurant business
in the suit premises from time to time and the last renewal obtained from the defendant corporation is valid
up to __________date.
(15) That the plaintiff says and submits that the plaintiff has not carried out any construction work as alleged or
otherwise in the suit premises. That the plaintiff says and submits that, after assessing and accepting taxes
for the said sheds, the defendant corporation is now alleging that the plaintiff has constructed the sheds
recently and using the same for pantry (Bhatarkhana). That all such allegations are misleading,
mischievous, false, fabricated and highly imaginary.
(16) That the plaintiff says and submits that notice/letter dated ________ issued by the defendant corporation is
not proper and legal and is contrary to the existing state of facts.
(17) That the plaintiff says and submits that, if the defendant corporation acting under the alleged notice/letter
dated _________ if cancels this plaintiff’s license then the plaintiff will suffer irreparable loss which cannot
be compensated in terms of money and will also suffer substantial injury.
(18) That the plaintiff says and submits that, as the plaintiff has not committed any breaches of rules,
regulations etc. or any other illegalities, the defendant corporation cannot cancel the license of this plaintiff.
(19) That the plaintiff says and submits that, if the license is cancelled, then the plaintiff along with his family will
have to starve, as this restaurant business is the only source of bread and butter to this plaintiff.
(20) That the plaintiff says and submits that, in view of the urgency in the matter and the highhanded, arbitrary
and illegal action on the part of the defendant, there is no time to send the notice under Section
_____________ of _____ Act. That, the notice under Section Act may please be dispensed with.
(21) That the plaintiff says and submits that the defendant corporation has not even bothered to check, verify,
confirm the previous record /correspondence nor have at time visited the suit premises before issuing the
alleged notice to ascertain the truthfulness and validity of the allegations contained in the notice. All these
facts make it crystal clear that the defendant corporation in collusion with the owners of the adjoining
property ___________ are trying to harass and pressurize this plaintiff and are attempting to throw this
plaintiff out of business.
(22) That the plaintiff says and submits that plaintiff has a strong prima facie case, the balance of convenience
is in favour of the plaintiff and it is fit and proper case for granting temporary/interim injunction. That the
plaintiff submits that, if injunction as prayed is not granted then the plaintiff will suffer irreparable loss and
substantial injury which cannot be compensated in terms of money. On the other hand the defendant
corporation will not suffer any loss, hardship or inconvenience if injunction as prayed is granted to this
plaintiff.
(23) It is therefore prayed that the Hon’ble Court be pleased to:—
(a) Restrain the defendant corporation, their agents, servants, employees, officers, labourers etc. by an
order of temporary injunction from giving effect to the notice dated _________ and from canceling the
license of this plaintiff pending the final disposal of the suit on merits.
(b) Award costs of this application to the plaintiff from the defendant.

Page 6 of 6
7 Kishor Singh Ratan Singh Jadeja v Maruti Corp, (2009) 11 SCC 229 (238).
8 Satya Prakash v First Additional District Judge, Etah, AIR 2002 AII 19.
9 Mandali Ranganna v T Ramchandra, AIR 2008 SC 2291.
10 State of Jharkhand v Surendra Kumar Srivastava, AIR 2019 SC 231.
End of Document
7.10 Reply to an Interim Injunction Application
Dr Medha Kolhatkar
PETITION

As stated in the beginning of this chapter, reply to any civil application is generally drafted on the lines of a written
statement. The defendant must state that the plaintiff has no prima facie case, the balance of convenience is not in
favour of the plaintiff and that no irreparable injury which cannot be compensated in terms of money is caused to
plaintiff. So also the plaintiff has failed to make out the case under O XXXIX of Civil Procedure Code for the grant of
temporary injunction.
7.10.1 Specimen
Specimen No. I
IN THE COURT OF CIVIL JUDGE, SR. DIVISION, (PLACE)
AT (PLACE)
Spl. C.S. No.____________
Reply to Injunction Application
This application on behalf of the defendants begs to state as under:—
(1) That the plaintiff has filed the abovementioned suits against the defendant for declaration, injunction and
for setting aside the agreement dated _________.
(2) That the defendants say and submit that the defendants have filed special civil suit no. _________ against
the plaintiff for specific performance of the contract and other reliefs.
(3) That the defendants submit that the plaintiff had orally requested the Hon’ble Court that the injunction
application in both the suits be heard and decided together to which the defendants have given their
consent.
(4) That with the mutual consent of the parties the matter was fixed for filing say by the defendants on
________. That the defendants sought time for filing say and the matter was fixed for filing say
on________.
(5) That the defendant submits that, on _________ behind the back of these defendants and contrary to the
understanding between the parties and by misleading the Hon’ble Court the present plaintiff had obtained
certain prohibitory orders.
(6) That the defendants submit that the Hon’ble Court is please to pass the following order:
“The defendants, their agents, servants or anyone acting on their behalf are hereby restrained from
entering, dispossessing or obstructing the applicant plaintiff and also creating any nuisance, with
Page 2 of 2
respect to the suit property. This order of restrain to remain in force till _______ date E.P. allowed oral
request for serving the defendants by R.P.A.D. through court is allowed” on ______.
(7) That the defendants submit that the defendants were and are in possession of the suit premises. All the
tactics of the plaintiff to misleading the court and thereby obtaining orders behind the back of the
defendants, are futile. The plaintiff is making lame efforts to create some evidence in his favour.
(8) That the defendants humbly submit that no interim orders of any nature be passed in the matter without
hearing the defendants.
(9) That the defendants say and submit that because of the mischievous misleading and misstatement of facts
made by the plaintiff the defendants are compelled to move the present application.
(10) That the defendants deny all the contentions raised by the plaintiff in her application dated __________.
(11) That the defendants are filing their detailed reply to Exh. 5 and the same may please be read as part and
parcel of this application.
(12) That the defendants submit that under the facts and circumstances the plaintiffs are not entitled to any
relief much less the equitable relief of injunction and since the defendants have appeared in the matter, the
injunction application be heard and decided on merits and the order passed on _____ date should not be
extended.
(13) That the defendants submit that all the allegations in the application that on _______date the defendants
tried to disturb the possession of the suit property are false.
(14) It is therefore prayed that the Hon’ble Court be pleased to:—
(a) Reject the application of the plaintiff-dated _________and no extension be granted in terms of order
dated ________.
(b) Award cost of this application to defendants from plaintiff.
Place________ Defendant
End of Document
7.11 Application for Appointment of Court Receiver
Dr Medha Kolhatkar
PETITION

The basic object of appointment of a court receiver is to protect, preserve and manage the suit property during the
pendency of the litigation. A receiver should not be appointed unless the plaintiff prima facie proves that he has an
excellent chance of succeeding in the suit. It is one of the harsh remedies which the law provides for the
enforcement of rights and therefore, should not be lightly resorted to. As appointment of a court receiver results in
the defendant being deprived of possession of the property before final judgment is pronounced, it should only be
granted for the prevention of a manifest wrong or injury.
Order XV rule 1 provides for the Appointment of Court Receivers.
(1) Appointment of Receivers: Where it appears to the court to be just and convenient, the court may by order,
(a) appoint a receiver of any property, whether before or after the decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management of the receiver and
(d) confer upon the receiver all such powers, as to bringing and defending suits and for realization,
management, protection, preservation and improvement of the property, the collection of rents and
profits thereof, the application and disposal of such rents and profits and the execution of documents
as the owner himself has, or such of those powers as the court thinks fit.
(2) Nothing in this rule shall authorize the court to remove from the possession or custody of property any
person whom any party to the suit has not a present right so to remove.
A receiver can only be appointed when it is just and convenient and also when there is a prima facie case in favour
of plaintiff calling for taking of an urgent measure.11
7.11.1 Remuneration
The Court may by general or special order fix the amount to be paid as remuneration for the services of the
receiver. (O XV rule 2–).
7.11.2 Duties
A court receiver so appointed has to furnish such security, as the court thinks fit and has duty to account for what
he shall receive in respect of the property. He has to submit accounts for such period and in such forms as the court
directs. The receiver has to pay amount due from him as per the direction of the court (Order XV rule 3).
Enforcement of Receiver’s Duties (O XV rule 4)
R. 4. Where a receiver—
Page 2 of 3
(a) fails to submit his accounts at such periods and in such form as the court directs, or
(b) fails to pay the amount due from him as the court directs, or
(c) occasions loss to the property by his willful defaults or gross negligence, the court may direct his property
to be attached and may sell such property, and may apply the proceeds to make good any amount found
to be due from him or any loss occasional by him, and shall pay the balance (if any) to the receiver.
7.11.3 Specimen
Specimen No. I
IN THE COURT OF CIVIL JUDGE, SR DIVISION,
AT
Spl. C.S. NO. ______ /20
Application for appointment of Court Receiver
The plaintiff / applicant states most respectfully as follows:—
(1) That the plaintiff has filed the accompanying suit against the defendants for partition of suit properties and
other reliefs.
(2) That the plaintiff craves leave of this Hon’ble Court to read the plaint as part and parcel of this application.
(3) That the plaintiff submits that suit properties described in Schedule I and Schedule II are in possession of
the defendant No. 1 who is the Karta of the HUF and the properties in Schedule III and Schedule IV are
occupied by the tenants.
(4) That the plaintiff submits that this plaintiff is a coparcener and has 1/4th share in the suit property however
the defendants are dealing with the suit properties to the detriment of this plaintiff. The plaintiff is also
obstructed by the defendants from entering upon the properties.
(5) That the plaintiff submits that it will take considerable time to decide the suit on merits and the plaintiff has
a strong prima facie case in his favor. Hence, to protect his rights and interests it is just and convenient and
necessary to appoint a court receiver to collect the rents from tenants and to maintain accounts thereof. So
also to supervise, protect, manage the agricultural produce, receive payments by selling agricultural
produce, make relevant payments, etc. of the suit properties.
(6) That the plaintiff submits that no hardship or inconvenience will be caused to the defendants if receiver as
prayed is appointed. However, if court receiver as prayed is not appointed, grave injustice will be cause to
this plaintiff and the final decree that may be passed against this plaintiff will be merely a paper order
without any fruit to this plaintiff.
(7) It is therefore humbly prayed as follows:—
(a) A receiver may please be appointed to manage, protect, preserve and improve the suit properties and
to collect rents and profits thereof.
(b) Award costs of this application to this plaintiff from defendant.
(c) Pass any other just and equitable order as deemed fit in the interest of justice
An Affidavit in support is filed herewith
Place________ Plaintiff/Applicant

Page 3 of 3
11 S Saleema Bi v Pyari Begum, AIR 2000 SC 3513.
End of Document
7.12 Application to bring Legal Heirs of the Plaintiff/Defendant on Record
Dr Medha Kolhatkar
PETITION

7.12.1 Effect of death of a party during pendency of suit
During pendency of the suit if the plaintiff or the defendant dies, then the crucial question which arises is whether
the legal heirs of the plaintiff or defendant can be brought on record as parties to litigation. Where the right to sue
survives, the suit is not abated by death of any party and the suit continues upon the death of a party. Order XXII
rules 1 to 6, 9 and 10A state the provisions regarding the same.
If the right to sue survives then the legal representative of the deceased party shall be added as party to the
litigation on an application made by the legal representative in this behalf. If the death of any party to the suit occurs
after hearing but before pronouncement of the judgment, there shall be no abatement, whether the cause of action
survives or not. The judgment may be pronounced irrespective of death and shall have the same force and effect as
if it had been pronounced before the death took place.
Order XXII rule 10A –Duty to communicate death of a party
Whenever a pleader appearing for a party to the suit comes to know of the death of the party, he shall inform the court
about it, and the court shall thereupon give notice of such death to the other party, and, for this purpose, the contract
between the pleader and the deceased party shall be deemed to subsist.
7.12.2 Procedure where one of several plaintiffs or defendants dies and the right to sue survives
In any case, where there are more plaintiffs and defendants than one, and anyone of them dies, and the right to sue
survives to the surviving plaintiffs or plaintiff alone, or against the surviving defendants or defendant alone, the court
shall cause an entry to that effect to be made on the record and the suit shall proceed at the instance of the
surviving plaintiffs or plaintiff, or against the surviving defendants or defendant.
7.12.3 If there is sole plaintiff and the right to sue survives
Where there is a sole plaintiff then upon his death the suit will not abate if the right to sue survives. As stated above,
the legal representative must present the application to the court to be added as a party to the litigation and such
application must be made within the prescribed period of limitation. If no application is made within the prescribed
period then the suit stands abated.
7.12.4 Where the sole defendant dies and the right to sue survives
When the sole defendant dies in a suit and the right to sue survives then an application, as stated above, should be
made within the prescribed period of limitation to bring the legal heirs of the defendant on record and the suit will
continue.
7.12.5 Limitation
Page 2 of 3
The application to bring legal heirs on record should be made within 90 days from the date of death of the party to
the suit otherwise the suit stands abated.
7.12.6 Specimen
Specimen No. I
IN THE COURT OF CIVIL JUDGE, SR. DIVISION________
AT _________
C.S. No. _______/20____
Application on behalf of the legal heirs of the plaintiff
This application on behalf of the legal heirs of the plaintiff is as follows:—
(1) That the plaintiff, i.e., Mr. ____________ died on _______ date at (place) due to ____________ (state the
cause of death). The death certificate is annexed herewith. The suit filed by the deceased plaintiff is for
seeking -------- from the defendant.
(2) That the plaintiff is survived by two sons, i.e., Mr.________ age:______ occupation:_______ r/at
_________ and Mr.________ age:______ occupation:_______ r/at _________. These two sons are the
only legal heirs of the plaintiff. The aforesaid legal heirs have preferred the present application.
(3) That the applicants submit that the right to sue survives to them on the death of the plaintiff and therefore
these applicants be added as legal heirs of the deceased plaintiff and may please be allowed to continue
the proceedings as plaintiffs in the suit.
(4) The application is well within the prescribed period of limitation and the necessary court/stamp fee is paid
herewith.
(5) The applicants submit that no hardship or inconvenience will be caused to the defendant if this application
is allowed. However if this application is not granted grave injustice will be caused to the applicants and
they would be deprived of their legitimate right.
(6) It is therefore most humbly prayed as follows:—
(a) These applicants be brought on record as legal heirs of the deceased plaintiff and the suit be
proceeded with against the defendant.
Affidavit in support is filed herewith
Place_______ Sd Applicant No.1

Page 3 of 3
Date________ Sd Applicant No. 2
Advocate for Applicant
End of Document
7.13 Application to Sue as an Indigent Person
Dr Medha Kolhatkar
PETITION

Every person is entitled to seek redressal irrespective of his financial capacity. Under O XXXIII, an indigent person,
i.e., a poor person can institute a suit without paying court/stamp fees. Poverty should not prevent anyone from
seeking justice. Order XXXIII rule 1 lays down as to who is a pauper or indigent person.
According to Order XXXIII rule 1—
R. 1. A person is an indigent person
(a) If he is not possessed of sufficient means (other than property exempt from attachment in execution of a
decree and the subject matter of the suit) to enable him, to pay the fee prescribed by law for the plaint in
such suit; or
(b) Where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the
property exempt from attachment in execution of a decree and the subject matter of the suit.
Any property which is acquired by a person after the presentation of his application for permission to sue as an
indigent person and before the decision of the application, shall be taken into account in considering the question
whether or not the applicant is an indigent person.
Where the plaintiff sues in a representative capacity the question whether he is an indigent person shall be
determined with reference to the means possessed by him in such capacity.
Any person who desires to sue as an indigent person has to make an application to the court, to obtain the court’s
permission to sue as an indigent person. On receiving such an application, every inquiry shall be made in the first
instance into the question whether or not the applicant is an indigent person. Such inquiry shall be made by the
Chief Ministerial Officer of the Court. The Court may either adopt the report of such officer as its own finding or may
itself make an inquiry into the question.
In AA Haja Muniuddin v Indian Railway, Hon’ble Supreme Court has observed:
Access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee.
The Supreme Court has held the word “person” occurring in O XXXIII in the explanation attached to rule includes
both natural as well as justice person, e.g., companies or association or body of individuals whether incorporated or
not.12
Where a litigant was not allowed to institute as an indigent person under Order XXXIII rule 1 of Civil Procedure
Code, yet he is entitled to file an application/appeal under O XLIV rule of Civil Procedure Code and can seek
permission from appellate court to allow him to file an appeal as an indigent person.13
Page 2 of 2
7.13.1 Specimen
Specimen No. I
IN THE COURT OF ____________
AT______
Misc. C. Appl. No. ________/ _____
Application to sue as an indigent person
The applicant above-named begs to state as follows:—
(1) The applicant/plaintiff has filed the suit for possession and declaration against the opponent herein. The
only immovable property, which this applicant had, is fraudulently obtained by the opponent herein.
(2) The applicant is an indigent person. He has no movable or immovable property and has no source of
income. Therefore, is unable to pay the requisite amount of court fee stamp as required by law.
(3) The applicant/plaintiff submits that this applicant harbors sanguine hopes of success in the matter and if
this applicant is not permitted to sue as an indigent person it will amount to denial of justice to this poor
litigant.
(4) The applicant/plaintiff submits that if the suit is decreed by the Hon’ble Court then this applicant will get his
immovable property and would be in a position to pay the court fee stamp.
(5) The applicant/plaintiff is unable to pay court fee stamp at this stage and has a strong case on merits and
thus desires to sue as a pauper.
(a) This applicant may please be allowed to sue as an indigent person in the interest of justice.
Place________ Applicant
Date ________ Adv for Applicant
12 Bhopal Wholesale Consumer Co-operate Store Ltd v Madan Lal Gandhi, 2009 (2) MPLJ 219.
13 Sushil Thomas Abraham v Skyline Build, AIR 2019 SC 512.
End of Document
7.14 Application for Restoration of Appeal
Dr Medha Kolhatkar
PETITION

Order IX rule 7 lays down as follows:
Where the court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing,
appears and assigns good cause for his previous non appearance, he may, upon such terms as the court directs as
to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.
7.14.1 Specimen
Specimen No. I
IN THE COURT OF DISTRICT JUDGE _________
AT__________
Misc. C. Appl. No.________/ _____
Application for restoration of appeal under O IX rule 7 read with section 151 of Civil Procedure Code.
The applicant/appellant abovenamed states most respectfully as follows:—
(1) The applicant had filed the appeal no.______/_____ against the opponent/respondent herein on various
grounds.
(2) The applicant submits that the Hon’ble District Judge was pleased to dismiss the said appeal for default of
the appellant/applicant and for the default of the advocate by its order dated______.
(3) The applicant submits that, on the last date of hearing, on the application of the respondent seeking
adjournment, the Hon’ble Court while granting the application fixed the next date as _______date. The
next date of hearing was informed by the Hon’ble Court to the parties and was mentioned below Exh
_______ by the Hon’ble Court.
(4) The applicant/appellant submits that, however in the Roznama the next date for hearing is stated as
______ date.
(5) The applicant and his advocate recorded the date informed by the Hon’ble Court in the open court and
mentioned below Ex______. Thus there was no need to refer to Roznama. As per Roznama’s date the
matter was called out on ______ date and therefore this applicant and his advocate was not present. The
matter was dismissed by the Hon’ble Court.
(6) The applicant/appellant had no knowledge about the date in the Roznama and his absence is not willful.
(7) The applicant/appellant submits that due to the two dates given in the matter for no fault of this
applicant/appellant, the appeal is dismissed for default.
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(8) The applicant/appellant submits that, great loss and injustice will be caused to this applicant if the appeal is
not restored back to its original file.
(9) The applicant/appellant submits that no hardship or inconvenience will be caused to the
respondent/opponent if the appeal is restored to its original file.
(10) In view of the aforementioned facts the applicant most respectfully prays:—
(a) That the appeal No._____/ 20___ be restored back to its original file.
Place________ Applicant/Appellant
Date ________ Advocate for Applicant/Appellant
End of Document
7.15 Application for Restoration of Suit
Dr Medha Kolhatkar
PETITION

Order IX rule 4 lays down as follows:
Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he
may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for such failure
as is referred to in rule 2 or for his nonappearance, as the case may be, the court shall make an order setting aside the
dismissal and shall appoint a day for proceeding with the suit.
7.15.1 Specimen
Specimen No. I
IN THE COURT OF CIVIL JUDGE _________ _________
AT __________
Misc. C. Appl. No.________/ _____
Application for restoration of suit under O IX rule 4 read with section 151 CPC.
The applicant above named begs to state most respectfully as follows:—
(1) The applicant/original plaintiff submits that, C.S. No.______/ ____ was dismissed by this Hon’ble Court
on_____date __ as neither the plaintiff nor his advocate on record was present when the case was called
for hearing.
(2) The applicant submits that, this applicant had gone to Delhi for official work and his return flight got delayed
due to thick fog. Therefore, this applicant could not reach the court in time.
(3) The applicant further submits that, the advocate on record was held up in traffic jam as many roads were
closed due to the visit of _______(VIP).
(4) Thus even the advocate could not reach court in time.
(5) The applicant submits that, this applicant has due regards to the directions and orders of the Hon’ble Court
and has no intention whatsoever to disobey them.
(6) The applicant submits that, grave injustice will be caused to this applicant/plaintiff if the suit which was
dismissed for default on ______ date is not restored to its original file.
(7) The applicant submits that, no hardship or injustice will be caused to the defendant/respondent if the suit is
restored to its original file.
Page 2 of 2

(a) the suit No.______/20___ be restored to its original file and the order dated ______ dismissing the suit
for default be set aside.
(b) pass any other just and equitable order as deemed fit in the interest of justice.
Place________ Applicant/Plaintiff
Date ________ Advocate for Applicant/Plaintiff
End of Document
7.16 Application for Stay
Dr Medha Kolhatkar
PETITION

Order XLI rule 5, enumerates the provisions pertaining to stay of proceedings and stay of execution of a decree or
an order. Filing of an appeal does not result in stay of judgment and decree. A separate application has to be
preferred before the Appellate Court with a request to grant stay to the judgment and decree passed by the Trial
Court, pending the disposal of the appeal. The Appellate Court after considering of O XLI rule 5 may grant stay to
the party praying for same.
Order XLI rule 5 declares as follows:
R. 5. Stay by the Appellate Court
(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far
as the Appellate Court may order nor shall execution of a decree be stayed by reason only of an appeal
having been preferred from the decree, but the Appellate court may for sufficient cause order stay of
execution of such decree.
Explanation—
An order by the Appellate court for the stay of execution of the decree shall be effective from the date
of the communication of such order to the court of first instance, but an affidavit sworn by the appellant,
based on his personal knowledge, stating that an order for the stay of execution of the decree has
been made by the Appellate Court shall, pending the receipt from the Appellate Court of the Order for
the stay of execution or any order to the contrary be acted upon by the court of first instance.
Stay by Court which passed the decree:
A stay can also be granted by the court which passed the decree, before the expiration of the time allowed for appealing
therefrom on sufficient cause shown by the applicant (Order XLI rule 5(2)).
7.16.1 Grounds
The Appellate Court or the court which passed the decree can grant stay only if the courts are satisfied
(a) That substantial loss may result to the party applying for stay of execution unless the order is made;
(b) That the application has been made without delay; and
Page 2 of 3
(c) That security has been given by the applicant for due performance of such decree or order as may
ultimately be binding upon him.
If the applicant fails to furnish security or the deposit as directed by the court, then the court shall not make an order
staying the execution of the decree.
Stay of execution proceedings by the Appellate Court may be refused only for special reasons.14
7.16.2 Specimen
Specimen No. I
IN THE DISTRICT COURT (PLACE)
AT ___________(PLACE)
Misc. Appl. No. __________/ 20____
Application for Stay
The applicant above named begs to state most respectfully as under:—
(1) That the applicant/appellant has filed the accompanying appeal against the judgment, order and decree
passed by the Hon’ble small causes court on ______ date in C.S. No._____.
(2) That the appellant submits that being aggrieved and dissatisfied by the judgment and decree of the learned
lower court the appellant has preferred this appeal and the appellant harbors sanguine hopes of success in
the matter.
(3) That it will take considerable period of time to hear and decide the present appeal on merits. In the
meantime the respondents with ulterior motives and mala fide intentions will throw this appellant out of the
house and dispossess him.
(4) The appellant submits that if the respondents succeed in their fraudulent intentions the appellant and his
family will be on streets without any roof on their head and the very purpose of filing the appeal will get
frustrated and hence in the interest of justice it is necessary to stay the judgments and decree passed by
the learned Small Causes Court in Civil Suit __________ /______.
(5) The appellant submits that no hardship or inconvenience will be caused to the respondent if stay as prayed
is granted.
(6) The necessary court/stamp fee is paid herewith.
(7) It is therefore prayed that:—
(a) The judgment and decree passed by the learned small causes court be stayed till the final disposal of
the appeal on merits.
(b) Pass any other just and equitable order as deemed fit in the interest.

Page 3 of 3
Place________ Appellant
Date ________ Advocate for Appellant
14 Rajaram Gupta v Ram Chandra, (2008) 10 SCC 796 (797).
End of Document
7.17 Application under Order 20 Rule 12 of Civil Procedure Code
Dr Medha Kolhatkar
PETITION

7.17.1 Specimen
Specimen No. I
IN THE COURT OF CIVIL JUDGE, SR. DIVISION _______(PLACE)
AT _____ (PLACE)_________
Mesne Profit Application No._______/20___
In Spl. Civil Suit No.________
Application under O XX rule 12 of Civil Procedure Code
The applicant abovenamed most respectfully submits that:—
(1) The applicant was the original defendant in Special Civil Suit No.______ which was filed by the opponent
(original plaintiff in Special Civil Suit No.______) for specific performance of oral agreement. In this special
civil suit, the defendant (present applicant) had filed counter-claim for possession of the suit property
i.e.____________. This special civil suit no._______ filed by the plaintiff (present opponent) was dismissed
and the counterclaim of the defendant (present applicant) was decreed by the Hon’ble Civil Judge Senior
Division ______in ________ in favor of the defendant (present applicant). The claim of the plaintiff (present
opponent) was dismissed in total and the counterclaim of the defendant (present applicant) was allowed
along with costs and damages. The opponent was ordered to handover the vacant possession of the suit
property to the applicant and to pay the costs and damages to the applicant and also directed enquiry
under O XX, rule 12 of Civil Procedure Code for mesne profits to be made on separate application.
(2) However, the opponent did not obey the order of the Hon’ble Civil Judge Senior Division in Special Civil
Suit No._____ of ______ and hence the applicant was compelled to file special darkhast no. _______ for
possession of the suit property and the Hon’ble Court handed over the vacant possession of the suit
property to the applicant on ________date. Thereafter, the applicant is in exclusive possession of the suit
property.
(3) The opponent also did not pay the costs and damages awarded by the Hon’ble Civil Judge Senior Division
in special civil suit no._____ to the applicant and hence, for recovery of the costs and damages, the
Applicant filed special darkhast no.______ and the recovery of the costs and damages was made from the
opponent and the decree of the Hon’ble Civil Judge, S.D. in special civil suit no._____ has now been fully
satisfied.
(4) The Hon’ble Court had decreed damages amounting to Rs._________/ @ Rs._______/-P.M. for one year
from the date of institution of the suit, i.e., _____ to ______. The Hon’ble Court also directed that separate
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application be filed by the Applicant (Original Defendant) for recovery of the mesne profits due till the
possession of the suit property was handed over to the applicant. The possession of the suit property was
handed over to the applicant vide darkhast no._____ on ______ by the Hon’ble Court.
(5) The applicant submits that in spite of the decree of the Hon’ble Court the opponent failed to handover the
vacant and peaceful possession of the suit property to the applicant and the opponent also played delay
tactics for prolonging the delivery of possession of the suit property and thereby gained profit of more than
Rs.______/- P.M. from the suit property. It is also submitted by the applicant that the suit property was in
wrongful/illegal possession of the opponent from ______ to ______ and that the opponent was utilising the
suit property for commercial purpose and was running ________ in the said property and that the opponent
has gained huge monitory benefit from the suit property through wrongful/illegal possession. The mesne
profit for the period for which the property was in wrongful possession of opponent amounts to Rs.______/-
(Rs._________ P.M.) which is wrongful gain to the opponent and wrongful loss to the applicant. Thus, the
applicant submits that the wrongful gain to the opponent and wrongful loss to the applicant is the mesne
profit out of the suit property, which the applicant is entitled to claim as mense profit and the opponent is
legally bound to pay to this applicant till the date of handing over the possession of suit property (date).
(6) Since the suit property was in wrongful/illegal possession of the opponent the applicant had to make
alternate arrangement for her own residence as well as clinic and incurred huge expenditure by way of
loans and interest for the same. The Applicant submits that in the interest of justice and in accordance to
the principles of equity, interest on the arrears of mesne profits till its realisation, be allowed by the Hon’ble
Court.
(7) The estimated claim of mesne profit to be paid by the opponent to the applicant is as below:—
(a) Mesne profit till the possession by the applicant________
(b) Interest on the above amount (a) from date of possession to filing of this application, i.e., _______to
_______ @ __% P.A. ___________Total claim = (a)+(b) = Rs._________/-
(8) The cause of action of filing this application is as per the directions of the Hon’ble Court in the order and
decree in special civil suit no.______ of _____. Also the cause for filing this application arose on ________
and there after it continues to arise from day to day till the payment of mesne profit is made by the
opponent.
(9) This application filed today is within the period of limitation as the execution proceedings no._______ for
execution of decree in special civil suit no.______ has been fully satisfied on ________. Hence this
application is filed well within the time and hence there is no bar of limitation.
(10) In view of the decree passed by this Hon’ble Court in special civil suit no. ________ on the counterclaim of
the defendant, this Hon’ble Court has jurisdiction to try, decide and due enquiry of this application.
(11) For the purpose of stamp fee, the suit is valued at Rs._______/- considering the claim of Rs.______/- as
per abovementioned paragraph 7, and also considering any other monitory relief like costs, fees for the
advocates etc. as this Hon’ble Court may order. Accordingly the stamp fee Rs.______/- has been paid.
(12) It is, therefore, humbly prayed before this Hon’ble Court that:—
(a) The application of the applicant be allowed.
(b) After due enquiry under O XX, rule 12 of Civil Procedure Code, the opponent may kindly be directed to
pay the mesne profits of the suit property at least at the rate of Rs._______/- P.M., amounting to
Rs._____/- (Rs.__________).
(c) Interest @____% P.A. from the date of possession of the suit property (_______) by the applicant till
filing of this application (_______) amounting to Rs._____/- (Rs.________), be ordered to be paid by
the opponent to the applicant.
(d) Interest at reasonable rate be allowed by this Hon’ble Court on the entire amount claimed from the
date of filing of this application till its realisation, to be paid to the applicant from the opponent.
(e) The costs of this application be rewarded to the applicant from the opponent.
(f) Any other just and equitable relief as this Hon’ble Court may think fit in the interest of justice.
Place________ Applicant
Page 3 of 3
Date ________ Advocate for the Applicant
Verification
I, ______________, age______, residing at_________, state that the above whole contents of the application are
true and correct to the best of my knowledge, belief and information and in witness thereof I have signed and
verified the same at _____ this day of ______ in the year _____.
Applicant
End of Document
7.18 Application for Amendment of Pleadings
Dr Medha Kolhatkar
PETITION

Order VI rule 17—
The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on
such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining
the real questions in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the
conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
A party cannot claim amendment in the pleadings as a matter of right, but it is always in the discretion of the court.
The Supreme Court has most aptly held, “Rules of procedure are intended to be a handmaid to the administration
of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even
infraction of the rules of procedure.”15
Amendments which result in introducing a new case in a suit against government may not be allowed since that
may require a fresh notice under section 80 of Civil Procedure Code.16
Rule 17 of O VI provides for amendment of pleadings. A pleading shall mean plaint and written statement. If the
plaint is amended, the defendant gets a right to amend his written statement to answer the contentions put forward
in the amended plaint. The defendant may file an additional written statement in respect of the matters covered by
the amendment of the plaint.
While additional written statement is governed by rule 9 of O VIII which provides that no pleading subsequent to the
written statement of a defendant other than by way of defence to set off or counterclaim shall be presented except
by leave of the court and upon such terms as the court thinks fit within a fixed period of time of not more than 30
days for presenting the same. But the court may, at any time, require a written statement or additional written
statement from any of the parties. As a matter of practice, courts allow the additional written statement to be filed
after the plaint is amended.17
Amendment when can be allowed.—All amendments ought to be allowed which satisfy the two conditions, (a) not
working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in
controversy between the parties. Amendments should be refused only where the other party cannot be placed in
the same position as if the pleading had been originally correct, but the amendment would cause him an injury
which could not be compensated in costs.18
7.18.1 Consequences of failure to amend
Order VI rule 18 — Failure to amend after Order—

Page 2 of 3
If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that
purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall
not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the
case may be, unless the time is extended by the court.
7.18.2 Specimen
Specimen No. I
IN THE COURT OF ___________________
AT PLACE
C.S. NO. ________/20____
Application for amendment of pleadings
(1) The plaintiff has filed the abovementioned suit for dissolution of partnership and for taking accounts against
the defendant. The plaintiff after filing the suit came to know of certain other transactions and withdrawals
made by the defendant as a partner of the partnership firm ___________________ (name of the firm)
(2) The plaintiff submits that in spite of due diligence and best efforts on the part of this plaintiff; the plaintiff
had no knowledge of the above referred transactions and withdrawals at the time of filing the present suit.
(3) The plaintiff submits that, therefore it has become just and necessary to amend the plaint suitably for
determining the real questions in controversy between the parties. The plaintiff further submits that if the
amendments as prayed are allowed no hardship or injustice will be caused to the defendant. On the other
hand if amendment as prayed is not allowed grave injustice will be caused to this plaintiff.
(4) The plaintiff submits that plaintiff may be allowed to add the following paras after para 14 in the plaint.
14(a) The plaintiff submits that the defendant received cash amount of Rs._______/- from
_____________ on ____date __ against the bill no. _______ of ______________. But the defendant
has not deposited the said cash to the partnership account nor has he accounted for the said amount.
14(b) The plaintiff submits that the defendant received again cash amount of Rs.________/- from
____________ having its registered office at ________ against bill no. ____ but the said amount has
not been deposited to the firm account of this plaintiff and defendant, i.e., ____________. On the
vouchers of both these firms the defendant has signed, endorsing acceptance of the abovementioned
payments.
14(c) The plaintiff submits that the defendant has made certain withdrawals from the partnership account
but has not used it for partnership business and has misappropriated the entire amount.
The details of withdrawals are as follows:—
(i) Rs. ______ withdrawn to purchase tender of M/s___________ Co. Pvt. Ltd. but in fact no such tender
was purchased.
(ii) Rs.__________ for going to Delhi on _______ date. The defendant neither went to Delhi/ nor
deposited back the amount to the account.
(iii) Rs. ________ for purchase of office stationery. No bills are produced nor any stationery was
purchased by the defendant. The relevant certified pass book extracts are produced herewith.
(iv) Rs. ____________ on _______date and Rs. ______ on _____ date were withdrawn but the defendant
has not accounted for the said withdrawals.
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(5) The plaintiff submits that these pleadings mentioned above are very crucial to decide the controversy
between the parties. Hence amendment may please be allowed.
(6) It is, therefore, most humbly prayed before this Hon’ble Court that:—
(a) Allow the plaintiff to amend the pleadings by adding para 14a, 14b, 14c to the plaint in the interest of
justice.
15 Purushottam v Manilal, AIR 1961 SC 325.

16 Ibid
17 Gurdial Singh v Raj Kumar Aneja. AIR 2002 SC 1003.
18 Pirgonda H Patil v Kalgonda S Patil, AIR 1957 SC 363 (365) : 1957 SCR 595 : 59 Bom LR 401; see also Harish
Chandra v Triloki Singh, AIR 1957 SC 444 : 1957 SCR 370.
End of Document
7.19 Caveat
Dr Medha Kolhatkar
PETITION
7.19 Caveat
7.19.1 Caveat (Section 148A CPC)
The object of section 148A of the Code of Civil Procedure is to protect a party from any ex parte orders that are
likely to be passed against the party in any case/proceedings.
As per section 148A, where a party contemplates an application to be made or has been made, in a suit or
proceeding instituted or about to be instituted in court, then any such party claiming a right to appear before the
court on the hearing of such application may lodge a caveat in respect thereof.
The expression caveat is derived from Latin language, which means, “beware”. Thus, caveat application acts as a
precautionary measure taken by a party to ensure that court should not take any action or grant any relief to the
applicant without notice being given to the party lodging the caveat.
A caveat may be lodged in contemplation of any ex parte interim relief or a caveat may be lodged after the
judgment is pronounced or order is passed thereby ensuring that no ex parte stay or other orders are passed
against the caveator.
The object of Section 148-A is two-fold. First, it provides an opportunity to the opposite party to be heard before an
order is passed and to show cause why the order should not be passed. Secondly, it avoids multiplicity of
proceedings, because if such a provision was not there, the affected person would have to file a separate
proceeding to have the adverse order set aside.
The caveator (i.e., party lodging the caveat application) has to serve a copy of the application on the person who is
likely to file or has filed any application in any suit or proceedings. The caveator shall serve a notice of the caveat
by registered post, acknowledgment due (RPAD).
No particular form of caveat has been prescribed under the Code. Therefore, the same is drafted in the form of an
application wherein the caveator has to specify the nature of dispute or proceedings which are contemplated to be
made by the opposite party and the right of the caveator to appear before the court at the hearing of any such
application.
The postal receipt issued by the post office on sending the caveat application by RPAD has to be affixed to the
caveat application.
The caveat application must also state the details of the opponent such as full name, address etc.
A caveat lodged as per section 148A of the CPC will remain in force for 90 days from the date of its filing.
Where a party contemplates that the other party may file an application before one of the two courts exercising
concurrent jurisdiction then the party can file caveat application before both the courts. There is no restriction as to
the number of caveat applications that can be preferred by the caveator. Thus, the caveator may file caveat
Page 2 of 3
7.19 Caveat
application before court in Delhi where the parties signed the contract and may simultaneously file before the
Mumbai court where the caveator has its registered office or works for gain.
If no suit/application is filed against the caveator as apprehended during the validity of the caveat application, and if
caveator’s apprehension continues that the opposite party may obtain any ex parte orders then the caveator can file
a fresh caveat application. As mentioned already there is no restriction on the number of caveat applications that
can be preferred by the caveator. After 90 days the caveator can file a fresh caveat application and continue to do
so as long as the apprehension continues.
7.19.2 Specimen
Specimen No. I
IN THE COURT OF DISTRICT JUDGE, ________
AT _________
Caveat Application No. _______/20____
Caveat application under section 148-A of the Civil Procedure Code
The caveator herein states respectfully as follows:—
(1) The caveator-original plaintiff had filed a suit bearing No. ______ before the Hon’ble small causes court at
(place). The Hon’ble small causes court was pleased to decree the suit by its judgment and order
dated_______ and also directed the opponent/defendant to handover the vacant and peaceful possession
of the suit premises to this caveator.
(2) That being aggrieved by the said judgment and decree the opponent- original defendant is likely to file an
appeal and stay application before the Hon’ble District Court against this caveator.
(3) The caveator therefore prays that no ex parte/interim orders be passed in the matter without serving a
notice of such appeal/application for stay upon the caveator and without hearing him.
(4) That the caveator has sent notice of this caveat by registered post; acknowledgment due (RPAD) to the
opponent. A copy of postal slip is annexed to this caveat application and for this act of kindness; the
caveator shall be duty-bound forever.
Place________ Caveator
Date ________ Advocate for Caveator
Verification
I _________________ the present caveator, do hereby state that the contents of this application as stated in Paras
1 to 4 are true and correct to the best of my knowledge, belief and information. Hence, verified the same on
________ date.
Caveator
Specimen No. II
IN THE COURT OF CIVIL JUDGE, SR. DIV.________
AT _________
Caveat Application No. _______/20___

Page 3 of 3
7.19 Caveat
Caveat application U/s 148-A of the Civil Procedure Code
The caveator most respectfully submits as follows:—
(1) That the caveator is the owner of the landed property situated at (Place) bearing C.T.S. No. (give details of
the property)___. That the caveator started construction work on the said plot of land on _______ date for
which he has obtained plans duly approved and sanctioned by the _______ Municipal Corporation.
(2) That the opponent on ________ date came to the premises of this caveator and obstructed the
construction activity and threatened the caveator of dire consequences if he constructed a multi speciality
hospital on the abovementioned land.
(3) That this caveator apprehends that the opponent may file a suit for declaration and injunction and also for
various interim reliefs against this caveator.
(4) That the caveator therefore prays that no ex parte/interim orders may please be passed against this
caveator in any suit, applications, proceedings etc. wherein the opponent will be the plaintiff-applicant and
the caveator the defendant-opponent without serving notice to this caveator and without hearing this
caveator.
(5) The caveator has sent a copy of this application by registered post, acknowledgement due (RPAD) to the
opponent. A copy of postal slip is annexed herewith.
(6) The appropriate court/stamp fee is affixed to this application.
Place________ Caveator
Date ________ Advocate for Caveator
Verification
I _________________ the present caveator, do hereby state that the contents of this application in paras 1 to 6 are
true and correct to the best of my knowledge, belief and information. Hence verified the same on ________ date.
Caveator
End of Document
7.20 Execution Petition
Dr Medha Kolhatkar
PETITION

7.20.1 Introduction
Execution means the actual enforcement or giving effect to the judgment of the court. A decree may be executed
either by the court which passed it or by the court to which it is sent for execution. The execution is complete when
the decree holder gets his money or to whatever he is entitled to the said decree. There are several modes of
execution of decree and the decree holder can choose any of the modes to recover the decretal dues.
The following persons may apply for execution:—
(i) Decree holder.

(ii) Legal representative of the decree holder, if the decree holder is dead.
(iii) Representative of or a person claiming under the decree holder.
(iv) Any person claiming under the decree holder.
(v) Transferee of the decree holder.
7.20.2 Contents of Application
Order XXI rule 11 lays down that except in the case of money decree, every application for execution 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. The application shall contain the following particulars, namely:—
(a) The number of suit.

(b) The name of the parties.
(c) The date of the decree.
(d) Whether any appeal has been preferred from the decree.
(e) Adjustment of payments if any made.
(f) If any previous applications have been preferred. (With necessary details)
(g) The amount of interest due on decree.
(h) The amount of costs (if any) awarded.
(i) The name of the person against whom execution of the decree is sought.
(j) The mode in which the assistance of the court is required, whether:—
(i) By the delivery of any property specifically decreed.
(ii) By the attachment or by attachment and sale or by the sale without attachment or any property.
(iii) By the arrest and detention in prism of any person.
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(iv) By the appointment of the receiver.

(v) Otherwise, as the nature of the relief granted may require.
Every application for execution of decree must be accompanied by the certified copy of the decree.
7.20.3 Limitation
As per Article 136 of the Limitation Act, 1963, the period of limitation for the execution of a decree (other than
mandatory injunction decree) is 12 years from the date of the decree. The period of limitation is three years for the
execution of a decree for mandatory injunction.
The application for execution of decree is generally available in a printed format. The application is required to be
filled by the decree holder. Appendix E No. 6 of Civil Procedure Code states the format of application for execution
of decree (Order XXI rule 11). The decree holder can plead any additional information for the purposes of execution
by moving either a separate application or the additional information can be annexed to the aforestated application.
End of Document
8.1 Appeal
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER VIII APPEAL, REVIEW AND REVISION
CHAPTER VIII APPEAL, REVIEW AND REVISION
8.1 Appeal
Appeal is defined as “the right of entering a superior court and invoking its aid and inter position to redress the error
of the court below. The appeal is the judicial examination of the decision given by the trial court both on facts and
law points.”
An appeal which arises from the original decree is known as the first appeal.
Section 96 of the Code of Civil Procedure lays down the provision pertaining to appeals from original decrees.
(1) Save where otherwise expressly provided in the body of this code or by any other law for the time being in
force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the Court
authorised to hear appeal from the decisions of such court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of Parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by
Courts of Small Causes, when the amount or value of the subject matter of the original suit does not
exceed (ten thousand rupees).
8.1.1 Decree from which an Appeal Lies
An appeal lies from following decrees:
(i) Every original decree, i.e., a decree passed by a court in exercise of its original jurisdiction in a suit.
(ii) Ex-parte decree (original).
(iii) A decree passed in petty suits cognizable by small causes court where the value of the subject matter of
original suit is less than Rs. 10,000/- and the intended appeal relates to question of law.
8.1.2 Decree from which No Appeal Lies
No appeal is maintainable from following categories of decrees:
(i) Consent or compromise decree.

(ii) Decree passed in petty suits cognizable by small causes court where value of the subject matter of original
suit is less than Rs. 10,000/- and the appeal relates to questions of fact.
8.1.3 Form and Contents of an Appeal Memo
(1) The Appeal memo is submitted in the form of a memorandum.

(2) Every appeal memo should be accompanied by the certified copy of the judgment and order against which
the appeal has been preferred.
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8.1 Appeal
(3) The appeal memo must states the title, i.e., the court where the appeal is filed and the party who files the
appeal is called the appellant and the party against whom the appeal is filed is called the respondent.
(4) The appeal memo in the introductory paras should state the details of the suit no., application no., etc. and
the date of the judgment and order against which the present appeal is preferred.
(5) Thereafter the appeal memo should state the grounds of objection to the judgment and order appealed
from.
(6) The grounds of objection should be concise and clear and there should not be any argument or narration.
(7) The grounds of objection should be numbered consecutively.
(8) The memorandum of appeal should state that the appeal is within limitation and that the requisite amount
of court fee is paid thereon.
(9) The memorandum of appeal must be signed by the appellant or by his pleader.
8.1.4 Limitation
An appeal against a decree or order to the High Court has to be filed within 90 days, and to any other court within
30 days.
Appeal preferred beyond the period of Limitation.—When the appeal is filed beyond the period of limitation then
the appellant has to make an application for condonation of delay thereby stating the reasons for delay as per
section 5 of The Limitation Act, 1963.
Only when the delay is condoned by the court, the appeal filed by the appellant is numbered and taken on record.
An affidavit must be filed alongwith the application for condonation of delay.
8.1.5 Cross Objections
Order XLI rule 22—
Sometimes a suit is partly decided in favour of the plaintiff and partly in favour of the defendant. In such a scenario
either of the parties may file an appeal challenging the part of the decree which is passed against them. The party
who is aggrieved by the judgment and who has not filed cross appeal, may take objections in the appeal filed by the
other side and thereby challenge the judgment and decree which is partially against the respondent. Such
objections are called as cross objections.
The cross objections should be in the form of memorandum of appeal and like a memorandum of appeal, the cross
objections should be served on the opposite party.
8.1.6 Cross Appeal
As stated above, when judgment is partly in favour of the plaintiff and partly in favour of defendant, both the plaintiff
and defendant being aggrieved and dissatisfied by the judgment, and decree passed by the trial court may prefer
appeals. Such appeals filed by both the parties against each other from the same judgment and decree are called
as cross appeals. Where cross appeals are filed in this fashion they are clubbed together and are heard and
decided together.
8.1.7 Section 107—Powers of Appellate Court
(1) The Appellate Court shall have the following powers:

(a) To determine a case finally
(b) To remand a case
(c) To frame issues and refer them for trial
(d) To take additional evidence or to require such evidence to be taken.
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8.1 Appeal
(2) Subject as aforesaid, the Appellate Court shall exercise same powers and shall perform the same duties
as are conferred and imposed by this code on course of original jurisdiction in respect of suits instituted
therein.
8.1.8 Second Appeal
The appeal which is filed or preferred from a decree passed by an appellant court in the first appeal is known as
second appeal. Section 100 of Code of Civil Procedures states the scope and ambit of second appeal. The second
appeal lies on substantial question of law only and shall lie to the High Court from every decree passed in appeal by
any court subordinate to High Court.
The substantial question of law involved in appeal must be stated precisely in the memorandum and second appeal
can be preferred only subject to the satisfaction of the High Court that the case involves a substantial question of
law. When the High Court is satisfied that a substantial question of law is involved, it shall formulate that question
and the appeal shall be heard only on such question. However, the High Court has power to hear appeal on any
substantial question of law not formulated by it, if it is satisfied that the case involves such question. No second
appeal shall lie except on the ground mentioned in section 100.
A second appeal lies to a High Court within a period of 90 days from the date of the decree appealed against.
(Article 116 of the Limitation Act, 1963)
8.1.9 Appeals from Orders
Sections 104 to 108 and O XLIII of the Code of Civil Procedure, 1908 lay down the provisions regarding appeals
from order. No appeal lies against other orders. However, the other orders against which no appeal lies, can be
challenged in appeal from final decree.
Period of Limitation: An appeal from an order preferred to the High Court shall be filed within 90 days from the
date of the order and appeal from order in other courts within 30 days from the date of the order.
8.1.10 Appeals to Supreme Court
Sections 109 to 112 read with O XLV of the Code of Civil Procedure, 1908 lay down the provisions regarding
appeals to the Supreme Court.
An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High
Court, if the High Court certifies that—
(a) The case involves a substantial question of law of general importance and
(b) In the opinion of the High Court, the said question needs to be decided by the Supreme Court.
Subject to the constitutional provisions as set out in Article 132 and Article 133, the appeals to Supreme Court
under the aforestated provisions of the Code of Civil Procedure are to be preferred.
8.1.11 Specimen
Specimen No. I
IN THE COURT OF THE DISTRICT JUDGE, (PLACE)
AT _______ (PLACE)
Civil appeal No.____________/20___
The appellant above named begs to state as follows:

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8.1 Appeal
(1) The appellant, i.e., the original plaintiff had filed C.S. No. __________ / 20___ before the Hon’ble small
causes court at ______ against the respondent / defendant herein for eviction and other reliefs.
(2) The Hon’ble small causes court has dismissed the suit of the appellant / plaintiff by the judgment and order
dated ___________.
(3) Being aggrieved and dissatisfied by the judgment and order dated ________ passed by the small causes
judge, ______ in civil suit No. _______ / 20___ the present appellant prefers this appeal against the same,
inter alia on the following grounds of objections thereto:
(a) That the order passed by the learned lower court is contrary to the provisions of law and the principles
of natural justice.
(b) That the order passed by the learned lower court is violative of the principles of justice, equity and
good conscience.
(c) That the learned lower court has not framed the issues properly.
(d) That the learned lower court has misunderstood and misconstrued the facts of the case.
(e) That the findings arrived at by the learned lower court are not supported by the evidence on record.
(f) That the learned lower court ought to have held that the appellant needs the suit premises for his bona
fide use and occupation.
(g) That the learned lower court ought to have held that the respondent has acquired suitable alternative
accommodation.
(h) That the learned lower court grossly erred in holding that the respondent has not committed breach of
any terms of tenancy agreement.
(i) That the learned lower court has grossly erred in interpreting the documentary evidence produced on
record by the appellant.
(j) The learned lower court ought to have taken into consideration the admission made by the respondent
in his cross-examination at Exhibit _______.
(k) That the learned lower court was at error in holding that the act of the respondent and his family
members did not cause any nuisance and annoyance to the appellant.
(l) That the learned lower court has not answered the issue No. 7 with clarity. The reasoning is vague and
ambiguous, and thus has resulted in miscarriage of justice.
(m) That the learned lower court ought to have relied only on the testimony of witness-2 of the appellant
while answering the issue No. 3.
(n) That the learned lower court ought to have decreed the suit of the appellant with costs in view of the
pleadings, oral and documentary evidence, arguments advanced and case law cited.
(4) That the said order is passed on ___________ date the appellant applied for the certified copies on
_____________ date the same were made available on _______ date and hence, the appeal preferred
today is well within limitation.
(5) That the appeal is valued for the purpose of jurisdiction and court fee at Rs. ________ that being the
valuation of the suit and proper court fee stamp is paid thereon.
(6) The appellant therefore most humbly prays:
(i) The record and proceedings be called for.
(ii) The appeal be allowed and the judgment and order of the learned lower court be set aside and
quashed.
(iii) Award costs of this appeal to the appellant from the respondent.
Date ________ Adv. for Appellant

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8.1 Appeal
Specimen No. II
Civil Appeal 2
IN THE HIGH COURT OF JUDICATURE (PLACE)
AT _______ (PLACE)
Civil appellate Jurisdiction
Appeal No.____________/20___
To,
The Hon’ble Chief Justice
And his companion judges of
High Court of ___________.
The appellant above named most respectfully to state as follows:
(1) The Appellant is a renowned educational institution and imparts training and conducts courses in various
fields of management.
(2) The Respondent was appointed purely on temporary basis on a consolidated salary of Rs. __________ /-
as ___________ (designation) for the period of one year only. The Appellant states that at the end of one
year the Respondent was given further extension of 6 months and thereafter again of 6 months.
Thereafter, the services of the Respondent were terminated on _________ date by reasons of end of the
tenure of service.
(3) The Respondent filed an Appeal no. ________ before the presiding officer, university tribunal __________
challenging the said termination order. The Hon’ble tribunal was pleased to allow the said appeal of the
Respondent.
(4) Being aggrieved and dissatisfied by the judgment and order passed by the Hon’ble University Tribunal in
Appeal no. _______ dated _________ the present Appellants have preferred this appeal against the same
inter alia on the following grounds of objections thereto—
(i) That the orders passed by the Hon’ble University Tribunal are contrary to the principles of justice,
equity and good conscience.
(ii) That the orders passed by the Learned Presiding Officer are contrary to the provisions of law and the
principles of natural justice.
(iii) That the findings reached by the Hon’ble Tribunal are contrary to the documentary evidence on record.
(iv) That the Learned University Tribunal has misunderstood and misconstrued the facts of the case.
(v) That the Learned University Tribunal grossly erred in holding that the Respondent is a permanent
employee of the Appellant.
(vi) That the Learned University Tribunal failed to interpret the various documents on record.
(vii) That the Learned University Tribunal ought to have held that the Respondent had not completed
continued service of 3 (three) years and thus has no right to continue in the service of the Appellant
institute.
(viii) That the Learned University Tribunal has failed to consider the actual facts of the case and failed to
consider the fact that the Respondent was working on contractual basis and was on consolidated
salary of Rs. _________/-.
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8.1 Appeal
(ix) That the Learned University Tribunal ought to have held that the Respondent was never confirmed in
service and even the leave applications made by the Respondent himself from time to time to the
Appellant institute shows that the Respondent was not a permanent employee of the Appellant.
(x) That the Learned University Tribunal lost sight of the fact that the Respondent was signing in a
different attendance register which is kept and maintained by the Appellant institute for the temporary
employees and the employees working on contractual basis.
(xi) That the Learned University Tribunal ought to have upheld the contentions of the Appellant which were
not only legal but also judicious.
(xii) That the Learned University Tribunal has given undue weightage to the contentions of the Respondent
and failed to consider the applicable legal provisions and the fact that the Appellant was entitled to
appoint persons on contractual basis to perform various functions and duties for the smooth functioning
of the institute and in pursuance of the same, this Appellant had appointed the Respondent purely on
contractual basis as ____________.
(5) That the Learned University Tribunal passed its judgment on _______ date and on the same dated the
Appellant applied for certified copies and obtained the certified copies on ___________ date and hence
this Appeal filed today is well within the prescribed period of limitation.
(6) The appropriate court fee stamp is paid herewith.
(7) It is therefore mostly humbly prayed that:
(a) The record and proceedings in the Appeal No. _________ be called for.
(b) The judgment and order passed by the Hon’ble University Tribunal dated _________ in Appeal No.
__________ be set aside and quashed and this Appeal be kindly allowed.
(c) That costs of this Appeal be awarded to the Appellant from the Respondent.
Date ________ Adv. for Appellant
End of Document
8.2 Review
Dr Medha Kolhatkar
8.2 Review
Review means a judicial re-examination of the case by the same court and by the same judge. Section 114 read
with O XLVII of the Code of Civil Procedure empowers the court to review its order if the conditions laid down
therein are satisfied.
Section 114 lays down as follows:
Subject as aforesaid, any person considering himself aggrieved
(a) by a decree or order from which an appeal is allowed by this code but from which no appeal has been
preferred,
(b) by a decree or order from which no appeal is allowed by this code, or
(c) by a decision on a reference from a Court of Small Causes,
may apply for a review of judgment to the court which passed the decree or made the order, and the court may
make such order thereon as it thinks fit.
8.2.1 Grounds for Review and Procedure thereof (Order XLVII)
As per Cogent Emr Solutions Ltd v Virendra Kr. Sharma,1 grounds on which an application for review may be filed
and they are as under:
(i) Discovery of new and important matter or evidence which was not within the knowledge or could not be
produced by the applicant at the time when the decree was passed or order made; or
(ii) Some mistake or error apparent on the face of the record or any other sufficient reason.
(iii) Any other sufficient reason.
Review power & appellate power.—A power of review is not to be confused with appellate power which may
enable an Appellate Court to correct all kinds of errors committed by the subordinate Court. Whereas, the power of
review may be exercised on the discovery of new and important matter or evidence which the person seeking
review could not know and which could not be produced before the order was made. It cannot be exercised on the
ground that the decision was erroneous on merits. That would be a province of Court of appeal.2
Error apparent.—There is a distinction between a mere erroneous decision and a decision which could be
characterised as vitiated by “error apparent.” A review is by no means an appeal in disguise whereby an erroneous
decision is reheard and corrected, but lies only for patent error.3
8.2.2 Hearing of Review Application
(1) The Court shall hear the review application ex-parte and if the court is satisfied regarding the grounds raised in
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8.2 Review
the application, then the court may issue notice to the opposite party, and if the court is not satisfied, the court may
reject the review application.
(2) The review application shall be heard by the same court and on hearing both the parties on merits, the court
may confirm either the original judgment or decree or order, or the court may amend or modify the same.
8.2.3 Order Rejecting Review
If the court rejects the review application, then such order shall not be appealable, however an order granting a
review application may be objected to by an appeal.
8.2.4 Limitation
The period of limitation for preferring an application for review of a judgment by a court, other than the Supreme
Court, is 30 days from the date of the decree or order.
8.2.5 Specimen
Specimen No. I
REVIEW
IN THE COURT OF CIVIL JUDGE SR. DIV, (PLACE)
AT _______ (PLACE)
Misc App__________/ 20___
Review Application U/S 114
Read with O XLVII of CPC
This application on behalf of the applicant is as follows:
(1) That the applicant had filed the special civil suit No. _________/20___ for the specific performance and
other reliefs the said suit has been partly decreed by the Hon’ble court by its order dated ____________.
(2) The Hon’ble court has held in the said judgment and order while answering issue No. 2 that the parties to
the suit have not produced any document to prove the payment of Rs. ______/- only, which is part of the
consideration under the contract, hence, the said issue is answered in negative.
(3) It is submitted that the document Ex-22 is the receipt which shows that the payment of Rs. _______/- has
been paid by the Applicant/Plaintiff and acknowledged by Opponent/Respondent.
(4) The applicant submits that the Opponent/Defendant has admitted the same in his cross-examination in
paragraph 9 and by the applicant in his affidavit.
(5) The Applicant submits that grave injustice and hardship will be caused if the said judgment and order are
not reviewed by the Hon’ble court. No hardship or inconvenience will be caused to opponent if the review
application is granted.
(6) The applicant submits that the amount of Rs. ______ /- was paid by a cheque bearing No.___________
drawn on _______________bank dated __________ and the passbook is produced before the Hon’ble
court at Ex-20.
(7) The amount of Rs _____ /- was given in cash in two installments of Rs. ____ /- and Rs. ______ /- each.
The opponent has acknowledged all the payments vide Ex-22.
(8) The applicant has also pleaded the said facts in the plaint at paragraph 18.
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8.2 Review
(9) The applicant submits that in view of the above stated facts the Judgment Order dated __________ needs
to be reviewed and rectified as the same is incorrect, erroneous and contrary to the evidence on record.
(10) The applicant states that the Judgment and Order was passed on _________ date thus, the present
application is well in time.
(11) The appropriate court fee is paid thereon.
(12) It is therefore prayed that
(13) Review the judgment and order with reference to issue No. 2 in the judgment passed on _______ date.
(14) Pass any other just and equitable order as deemed fit in the interest of justice.
Date ________ Adv. for Plaintiff
1 Cogent Emr Solutions Ltd v Virendra Kr. Sharma, 2009 (111) DRJ 673.
2 AT Sharma v AP Sharma, AIR 1979 SC 1047 : (1979) 4 SCC 389.
3 Thungabhadra Industries v Govt of AP, AIR 1964 SC 1372 (1376, 1377) : (1964) 5 SCR 174.
End of Document
8.3 Revision
Dr Medha Kolhatkar
8.3 Revision
Revision means the act of examining once again, in order to remove any defect or grant of relief against the
irregular or improper exercise or non-exercise of jurisdiction, by a lower court.
Section 115 of the Code of Civil Procedure, 1908 states the revisionary powers of the court and the objective of the
provision, which is to keep a check on the subordinate courts and to ensure that they exercise their proper
jurisdiction without exceeding, and do not act arbitrarily and illegally.
The object/aim of section 115 of the Code of Civil Procedure, 1908, which deals with the revision, is to provide the
litigating party with the remedy in case of jurisdictional error committed by any court subordinate to the High Court.
The High Court’s revisional powers can be invoked subject to following conditions—
(i) there must be a case decided;

(ii) the court deciding the case must be subordinate to the High Court;
(iii) no appeal should lie to the High Court against the decision;
(iv) in deciding the case the subordinate court must appear to have:
(a) exercised jurisdiction not vested in it by law; or
(b) failed to exercise jurisdiction vested in it by law; or
(c) acted in the exercise of its jurisdiction illegally or with material irregularity.4
8.3.1 Scope of Revisionary Powers
The High Court is not to enter into the merits of evidence. The Court must see whether the requirements of law are
duly and properly obeyed by the court whose order is the subject of the revision, and whether the irregularity as to
failure or exercise of jurisdiction is such as to justify interference with the order.
For the effective exercise of High Court’s superintendence and visitorial powers over subordinate Courts, this
revisional jurisdiction has been conferred on the High Court by section 115. The powers given are clearly limited to
the keeping of the subordinate Courts within the bounds of their jurisdiction.5
8.3.2 Who may File a Revision
(a) The person aggrieved by an order passed by a subordinate court may file a revision against that order.
(b) Courts may suo moto exercise revisionary powers.
(c) The High Court may suo moto exercise its revisional jurisdiction.
8.3.3 Form of Revision
No particular form of revision is prescribed in the court. Such petition, however, must contain grounds as to error of
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8.3 Revision
jurisdiction covered in section 115 of the Code of Civil Procedure, 1908.
8.3.4 Limitation
The period of limitation for filing a revision application is 90 days from the date of decree or order sought to be
revised.
8.3.5 Specimen
Specimen No. I
IN THE HIGH COURT OF JUDICATURE (PLACE)
AT _______ (PLACE)
Revision Petition No._______of 20________
Petition U/S 115 of Code of Civil Procedure
To,
The Hon’ble Chief Justice
And his companion judges of
High Court of ___________.
This Petitioner respectfully submits as follows:
(1) The address of the Petitioner for service of all processes of this Hon’ble Court is as stated hereinabove in
the cause title. The address of the Petitioner for the said purpose is also that of his counsel Mr.
___________.
(2) The address of the Respondent for the purpose of process of service of this Hon’ble Court as stated
hereinabove in the cause title.
(3) The Respondent was represented before the Hon’ble Trial Court through his advocate Mr. ___________.
This Petitioner has preferred this civil revision petition against the order dated __________ passed in civil
suit No. _________ below exhibit _____________ on the following amongst other grounds:
(4) This Petitioner had filed the suit for declaration and injunction and various other reliefs against the present
Respondent.
(5) That the original Defendant/Respondent preferred an application challenging the maintainability of the
present suit.
(6) That the Hon’ble Court was pleased to frame a preliminary issue “whether the court has jurisdiction to
entertain and decide the present suit and whether the case needs to be heard and decided by co-operative
court.”
(7) That on hearing the parties the Hon’ble Court was pleased to hold that the Hon’ble Court, i.e., Civil Judge
Sr. Div has no jurisdiction to decide the suit in question by its order dated __________ and that the nature
of dispute should be heard and decided by the Co-operative Court.
(8) Being aggrieved by the said order of the Trial Court passed in Civil Suit No. _____of 20________ below
Exhibit _______ the Petitioner has filed the present Petition.
(9) Grounds—
(a) That the learned Trial Court grossly erred in holding that it has no jurisdiction to entertain the civil
dispute.
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8.3 Revision
(b) The Petitioner states that the Hon’ble Trial Court lost site of the fact that the Petitioner was seeking
declaration of his certain civil rights and that there is no implied or express bar provided in any statute
of Civil Procedure Code for granting the same.
(c) The Hon’ble Trial Court misconstrued and misinterpreted the pleadings of this original
Plaintiff/Petitioner.
(d) The Hon’ble Trial Court failed to consider that the dispute between the parties is not within the scope
and ambit of the Co-operative Society’s Act ________.
(e) And that the court had the jurisdiction to entertain and pass interim as well as final orders in the matter.
(f) The Trial Court ought to have granted the interim order in favour of the Petitioner thereby protecting his
possessory rights and failed to consider the fact that defendant has not made any specific averments
regarding him possessing the suit property.
(10) The Petitioner states that great injustice and irreparable loss, damage and injury is caused to this Petitioner
by the said impugned order passed by the Trial Court dated _____________ thereby refusing to exercise
jurisdiction which is lawfully vested in the Hon’ble Court.
(11) The Petitioner was therefore left with no alternative but to invoke the revisionary powers of this Hon’ble
Court to seek interference, redressal and justice.
(12) It is therefore most respectfully prayed that:
(i) The Order passed below Exhibit No. _____ dated ____ in civil suit No. _____ be quashed and set
aside.
(ii) It be directed that, civil suit No. ________ be restored back to its original file and to conduct the
proceedings as per law.
Place________ Petitioner
Date ________ Adv. for Petitioner
4 Baldevdas Shivlal v Filmistan Distributors (India) Pvt Ltd, (1969) 2 SCC 201 : AIR 1970 SC 406.
5 SS Khanna v FJ Dillon, AIR 1964 SC 497 (502, 505) : (1964) 4 SCR 409 : 1963 ALJ 1068.
End of Document
9.1 Introduction
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER IX DRAFTING OF PETITIONS UNDER
MATRIMONIAL LAWS
CHAPTER IX DRAFTING OF PETITIONS UNDER MATRIMONIAL LAWS
9.1 Introduction
The institution of marriage is an integral part of any civilised society all over the world. As the society progressed a
need was felt to regulate and legally recognise the institution of marriage. It was earlier believed; especially in Hindu
shastras that marriage is an inseparable union. However, today it is accepted and well recognised that
divorce/dissolution of marriage is an essential aspect of matrimonial laws.
In Bajrang Gangadhar Revdekar v Pooja Bajrang Revdekar,1 it was held:
Marriage between a man and woman is considered to be a sacred ceremony. It is a social contract between two individuals
that unites their lives legally, economically and emotionally. The husband and wife perform the marriage ceremony with a
fond hope that they will stay together for the rest of their life and both of them will have love and affection amongst each
other and if any issues are born out of the said wedlock, they will be looked after by them. With this pious objective,
marriages take place and that too in a sacred manner in the presence of a priest. Therefore, the said ceremony is a sacred
ceremony which is not required to be treated lightly by either spouse treating it as a child’s play. It is said that marriages are
made in heaven but they are broken on earth. Appropriate care is required to be taken to see that such marriages are not
broken casually and that is how laws are enacted for providing dissolution of marriage as per statutory grounds available.
The manner in which various divorce petitions are filed, creates doubts as to—
(i) whether the marriages which are treated as sacred ceremony will continue to be the same in future,
(ii) whether the tradition which is prevailing since time immemorial in this country will continue for a long time
and
(iii) whether the child who is born out of the said wedlock will be able to get the love and affection of father and
mother in case the marriage is dissolved in a light fashion.
The marriage law in India is governed by the personal laws of the parties. For example, The Hindu Marriage Act,
1955, The Special Marriage Act, 1954 (Inter-religious or inter-communal or international marriages are possible in
India only under the Special Marriage Act, 1954), The Dissolution of Muslim Marriage Act, 1939, The Indian
Christian Marriage Act, 1872, The Indian Divorce Act, 1869 and The Parsi Marriage and Divorce Act, 1936.
The Hindu Marriage Act, 1955 recognises two theories of divorce – i) the fault theory and ii) divorce by mutual
consent theory. As per the fault theory, as recognised under section 13 of the Act, a marriage can be dissolved only
when either party to the marriage has committed a matrimonial offence. The fault theory contemplates that it is
necessary to have a guilty party and an innocent party, and the innocent party can seek the remedy of divorce.
Where both the parties are at fault, then there is no remedy available.
The other theory recognised is divorce by mutual consent. This theory helps the parties to dissolve their marital tie
without any allegations, anxiety, anger and stress.
The Hindu Marriage Act, 1955 under section 13(1) lays down the grounds for divorce available to both the spouses,
and section 13(2) lays down the additional grounds available to the wife to seek divorce.
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9.1 Introduction
There is a radical increase in the number of divorce cases today. Many couples are now realising that it’s easier to
get married than to get a divorce.
1 Bajrang Gangadhar Revdekar v Pooja Bajrang Revdekar, decided by the Bombay High Court on 18 August 2009.
End of Document
9.2 Drafting of Marriage Petitions
Dr Medha Kolhatkar
MATRIMONIAL LAWS

Stated below are the essentials for drafting a Marriage Petition.
9.2.1 Title of the Petition
A marriage petition whether it is for divorce, restitution of conjugal rights, judicial separation, maintenance etc., has
to be presented before the family courts as established under the Family Courts Act, 1984. In other cases where
there are no family courts established the petition has to be presented before the Civil Court. After the title, give full
details of the petitioner and respondent.
9.2.2 Details of Marriage
In the first paragraph of the petition set out the details of the marriage, i.e., the date of the marriage, the place of the
marriage and how the marriage was solemnised.
For example.—That the marriage was solemnised according to the Hindu Vedic rites and ceremonies (when the
parties to the petition are Hindus). Also the religion of the parties should be stated where necessary.
9.2.3 Details of Child/Children Born Out of the Wedlock
The next paragraph in the petition should give the details of the child/children, if any, born out of the wedlock. If no
issue is born out of the wedlock then a statement to that effect should be made.
9.2.4 Details of Maiden Name and Name after the Marriage
The next paragraph should give the maiden name of the wife, along with her name after the marriage. Domicile of
the wife and husband, before and after marriage should be stated.
9.2.5 Introductory Details of Petitioner and Respondent
In this paragraph, the introductory details of the petitioner and the respondent such as their qualifications, nature of
work, place of work, working hours, monthly earnings, etc. should be given.
9.2.6 Facts of the Petition
The facts should be narrated in a chronological order, giving rise to the petition in small numbered paragraphs. Also
while stating the facts, details should be given as to where the parties to the petition cohabited.
For example,
(i) If it is the case of the petitioner that the respondent is treating her with cruelty, both mental and physical
cruelty then the instances of cruelty should be narrated in the petition.
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(ii) If desertion is the ground pleaded for seeking divorce then the details of desertion, i.e., the date etc.,
should be stated.
9.2.7 No Collusion or Connivance
After narrating the facts precisely and clearly the petition must state other technical details. In the next paragraph a
declaration has to be made by the petitioner that there is no collusion or connivance with the respondent in filing the
petition. The purpose of this declaration is to emphasise that the petition is genuine and bona fide and the same is
not presented with any ulterior motives.
9.2.8 Jurisdiction
The next paragraph/clause should give details as to how the present court has jurisdiction.
For example:
(i) The parties last resided together at (place) as husband and wife, hence the court has jurisdiction to
entertain, try and decide the petition
(ii) That the marriage was solemnised at (place), hence the court has jurisdiction to entertain, try and decide
the petition.
9.2.9 Court-fee
A declaration regarding payment of court fee stamp should be made in the petition.
This paragraph should state that appropriate court fee stamp is paid herewith.
9.2.10 No undue delay
The next paragraph should state that there is no undue delay in presenting the petition, which indicates that the
petitioner has acted within reasonable time.
9.2.11 Prayer
Last but not the least, is the prayer clause. The prayer made to the Court through the Marriage petition should be
stated clearly devoid of any vagueness or ambiguity.
For example, pass a decree of divorce on the ground of cruelty/desertion etc.
9.2.12 Signature and Affidavit
The petitioner has to sign the petition and the verification. An affidavit in support of the petition should be filed along
with the petition.
End of Document
9.3 Petition for Restitution of Conjugal Rights
Dr Medha Kolhatkar
MATRIMONIAL LAWS

The provision for Restitution of Conjugal Rights is contained in section 9 of the Hindu Marriage Act, 1955.
Section 9 lays down :
When either the husband or the wife has, without reasonable excuse withdrawn from the society of the other, the aggrieved
party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth
of the statements made in such petition and that there is no legal ground why the application should not be granted, may
decree restitution of conjugal rights accordingly.
9.3.1 Burden of Proving Reasonable Excuse
Explanation:- Where a question arises whether there has been reasonable excuse for withdrawal from the society,
the burden of proving reasonable excuse shall be on the person who has withdrawn from the society
Matrimonial obligations include an obligation on both the spouses to cohabit with each other and to live with each
other. The term “withdrawal from the society” means cessation of cohabitation voluntarily by the respondent to bring
to an end the consortium.
The object of section 9 is to save marriage.
Therefore, the above provision makes it clear that if either the husband or the wife, without reasonable excuses,
withdraws from the society of the other, the aggrieved party may approach the court for restitution of conjugal rights.
If the decree of restitution of conjugal rights is not honoured for a period of more than one year, subsequent to the
date of decree, it becomes a ground for divorce.
The decree of restitution of conjugal rights cannot be actioned by forcefully making the party who has gone away
from the society of the other to live with the one who sets the petition for restitution.
9.3.2 Specimen
Specimen No. I
IN THE COURT OF FAMILY JUDGE, ____________
AT __________
M.P. NO. ___________ / 20___

Page 2 of 9
Petition for restitution of conjugal rights
The petitioner above-named most respectfully submits as under:—
(1) That the marriage between the Petitioner and the respondent was solemnised as per Hindu religious rites
and ceremonies on ______ date at _________ (Place).
(2) That the petitioner’s maiden name was ______ and after marriage now her name is ______________.
(3) The Petitioner states that the Respondent was never interested in marrying this Petitioner. The Petitioner
states that the Respondent informed this petitioner after solemnisation of the marriage on or about ______
date that he married this Petitioner because his parents pressurised him to marry this Petitioner as this
Petitioner is well qualified and belongs to the same community as that of the Respondent.
(4) The Petitioner states that the marriage between the Petitioner and the Respondent has not been
consummated because of the Respondent.
(5) The Petitioner states that the Respondent never showed any desire or inclination to cohabit and
consummate the marriage with the Petitioner. The Petitioner states that this Petitioner was completely
shocked and shattered to know that the Respondent wanted to marry some other girl and not this
Petitioner.
(6) The Petitioner states that on _________ date as there was function at her parent’s place, this Petitioner
went along with the Respondent to her parent’s house. The Respondent told the petitioner that he has to
go out of station for business work and would come back and take her from her parent’s home after two
days. The Petitioner readily agreed to the same.
(7) The petitioner states that the respondent is avoiding the company of this petitioner without any reasonable
cause or excuse. The petitioner was and is ready and willing to stay with the respondent as husband and
wife.
(8) The Petitioner states that the Respondent though returned from the business tour never came to meet this
Petitioner. The Petitioner states that because of the Respondent’s behaviour the Petitioner’s parents kept
questioning the Petitioner as to what has gone wrong between the two of them. The Petitioner states that
she avoided telling her parents the truth for a long period of time as they would get stressed and tensed.
The parents of the Petitioner are B.P. patients. So, all this would aggravate their health condition. The
Petitioner also has two younger sisters who are of marriageable age. The Petitioner states that all this may
affect their marriage prospects.
(9) The Petitioner states that this Petitioner on _____ date and on _____ date went to meet the Respondent at
her matrimonial home to sort out the matter but the Respondent was not available. The Petitioner states
that, her in-laws are assuring her time and again that the Respondent will soon meet her and bring her
back to the matrimonial home.
(10) The Petitioner states that, this Petitioner tried to talk to the Respondent over the phone and every time the
Respondent told her that he needs some time and that very soon he will visit her and take her to the
matrimonial home.
(11) The Petitioner submits that the respondent has caused a lot of embarrassment and mental cruelty to the
Petitioner by refusing to cohabit and avoiding the company of this petitioner. Yet the petitioner is ready to
excuse and forgive the respondent if the respondent is genuinely interested in living with the Petitioner as
husband and wife.
(12) The Petitioner submits that the respondent has forced the petitioner to stay with her parents from
__________ date and thus the respondent is living separately from the Petitioner without any just cause
and reason.
(13) That there is no collusion or connivance between the petitioner and respondent in presenting the petition.
(14) That there is no legal impediment or other ground as to why the relief as prayed, should not be granted.
(15) That the marriage was solemnised at (Place), and the parties are presently residing at (Place), i.e., within
the territorial jurisdiction of this Hon’ble court. Hence, this court has jurisdiction to entertain, try and decide
the present petition.
(16) The appropriate court fee is paid herewith.
Page 3 of 9

(i) A decree of restitution of conjugal rights may please be passed against the respondent.
(ii) Pass any other just & equitable order as deemed fit in the interest of justice.
Place________
Date ________ Petitioner
Verification
The above-named petitioner hereby states that, the contents of the above petition from paragraphs 1 to 17 are true
& correct to the best of the knowledge, belief and information of this petitioner and the same is verified by the
petitioner on this _______ day of _________.
Petitioner
Specimen No. II
AT __________
M.P. NO. ___________ / 20___
Reply to the Petition for Restitution of Conjugal Rights
The Respondent above-named most respectfully submits as under:—
(1) The Respondent states that the Petition of the Petitioner is not legal, not valid and hence not tenable at
law.
(2) The Respondent generally denies all the contentions, allegations, averments made in the petition except
those which are specifically admitted.
(3) The Respondent states that the contents in Para No. 1, that the marriage between the Petitioner and the
respondent was solemnised as per Hindu religious rites and ceremonies on _______ date at _________
Page 4 of 9
(Place). An affidavit in support is filed herewith are true and correct to the best of his knowledge and belief
and hence admitted by this Respondent.
(4) The Respondent states that the contents in Para No. 2 that the petitioner’s maiden name was ______ and
after marriage now her name is ______________ are substantially true and correct and admitted by this
Respondent.
(5) The Respondent states that the allegations in Para No. 3 that the Respondent was never interested in
marrying this Petitioner and that the Respondent married this Petitioner because his parents pressurised
him to marry this Petitioner as this Petitioner is well qualified and belongs to the same community as that of
the Respondent, are not true and correct as is tried to be made out and hence denied by this Respondent.
(6) The Respondent states that the allegations in Para No. 4 that the Respondent told this Petitioner the same
after solemnisation of the marriage and that the marriage between the Petitioner and the Respondent has
not been consummated because of the Respondent are not true and correct and hence specifically denied
by this Respondent.
(7) The Respondent states that the allegations in Para No. 5 that the Respondent never showed any desire or
inclination to cohabit and consummate the marriage with the Petitioner, and that this Petitioner was
completely shocked and shattered to know that the Respondent wanted to marry some other girl and not
this Petitioner are not true and correct and vehemently denied by this Respondent.
(8) The Respondent states that the allegations in Para No. 6 that on _________ date as there was function at
her parent’s place this Petitioner went along with the Respondent to her parent’s house and that the
Respondent told her that he has to go out of station for business work and would come back and take her
from her parent’s home after two days and the Petitioner readily agreed to the same are not true as is tried
to be made out and hence denied by this Respondent.
(9) The Respondent states that the allegations in Para No. 7 that the respondent is avoiding the company of
this petitioner without any reasonable cause or excuse. The petitioner was and is ready and willing to stay
with the respondent as husband and wife are not true and correct as alleged and is tried to be made out
and hence specifically denied by this Respondent.
(10) The Respondent states that the allegations in Para No. 8 that the Respondent though returned from the
business tour never came to take this Petitioner and that because of the Respondent’s behaviour the
Petitioner’s parents kept questioning the Petitioner as to what has gone wrong between the two of them
and that she avoided telling her parents the truth for a long period of time as they would get stressed and
tensed. And that the parents of the Petitioner are B.P. patients. So, all this would aggravate their health
condition. That the Petitioner also has two younger sisters who are of marriageable age and that all this
may affect their marriage prospects are not true and correct as is alleged and is tried to be made out and
hence strongly objected and specifically denied by this Respondent.
(11) The Respondent states that the allegations in Para No. 9 this Petitioner on _____ date and on _____ date
went to meet the Respondent at her matrimonial home to sort out the matter but the Respondent was not
there. And that her in-laws assured her time and again that the Respondent will soon meet her and bring
her back to the matrimonial home are not true and correct and hence denied by this Respondent.
(12) The Respondent states that the allegations in Para No. 10 that this Petitioner tried to talk to the
Respondent over the phone and every time the Respondent told her that he needs some time and that
very soon he will visit her and take her to the matrimonial home are false and fabricated and hence denied
by this Respondent.
(13) The Respondent states that the allegations in Para No. 11 that the Respondent has caused a lot of
embarrassment and mental cruelty to the Petitioner by refusing to cohabit and avoiding the company of this
Petitioner is not true and correct and hence denied by the Respondent. The further allegations that the
petitioner is ready to excuse and forgive the respondent if the respondent is genuinely interested in living
with the petitioner as husband and wife are not true and correct as is tried to be made out and hence not
admitted by this Respondent. The Respondent states that, the Respondent has done nothing wrong
therefore the question of forgiving this Respondent does not arise at all.
(14) The Respondent states that the allegations in Para No. 12 that the respondent has forced the Petitioner to
stay with her parents from __________ date and thus the respondent is living separately from the
Petitioner without any just cause and reason, are not true and correct and hence specifically denied by this
Respondent and the Petitioner be put to strict proof thereof.
Page 5 of 9
Without prejudice to whatever is stated herein above and without prejudice to any of the rights
of this Respondent, the Respondent states and submits as follows:
(15) The Respondent submits that the Petitioner has put forth a bull and cock story and that there is no truth in
it and hence denied by this Respondent.
(16) The Respondent submits that the marriage could not be consummated as the Petitioner was not keeping
well. The Respondent states that the Petitioner from day one is reluctant to co-habit with this Respondent
probably because some of the Respondent’s friends were teasing him during marriage that Miss ________
is now going to miss this Respondent. The Respondent explained to the Petitioner that this Miss _______
was interested in marrying the Respondent but the Respondent was never interested in marrying her and
that his friends were just casually teasing him and that such teasing goes on between friends and that
there is nothing serious about it. But the Petitioner is not ready to believe this Respondent.
(17) The Respondent states that the Petitioner is now looking at the marriage with lot of prejudice and bias. The
Respondent states that the marriage is based on mutual trust, faith and confidence. The Respondent
states that Petitioner got to trust this Respondent. The Respondent states that this Petitioner is constantly
after the Respondent asking him to tell the truth. The Respondent is now tired of reiterating the same thing
again and again but the Petitioner is not ready to believe him.
(18) The Respondent states that the Petitioner did visit his house on _____ date and ______ date deliberately
at the time when she knew that the Respondent would be in his office. She questioned the in-laws
repeatedly about the Respondent’s relationship with Miss ________. The Respondent states that the
Petitioner never came to stay with the Respondent. When the Respondent asked her as to when she
would come to the matrimonial home, the Petitioner told him that only when she knows the truth she will
come to the matrimonial home.
(19) The Respondent states that it is the Petitioner who has withdrawn from the society of this Respondent
without any just cause and reason. The Respondent states that this suspicious nature of the Petitioner has
caused and is causing lot of embarrassment and harassment to this Respondent.
(20) The Respondent submits that this Respondent is interested in living with this Petitioner as husband and
wife and expects the Petitioner to have faith and trust in this Respondent only then the marriage can work.
The Respondent once again reiterates at the cost of repetition that he has married the Petitioner out of his
free will and not out of any pressure and genuinely desires that the marriage becomes successful between
him and the Petitioner.
(21) The Respondent submits that under the aforesaid facts and circumstances the Petition deserves to be
dismissed as it is based on false grounds.
(i) Dismiss the Petition in limine.
(ii) Pass any order which is just and equitable as deemed fit in the interest of justice.
Place________
Date ________ Respondent
Verification
The above named Respondent hereby states that, the contents of the above reply from paragraphs 1 to 23 are true
and correct to the best of the knowledge, belief and information of this Respondent and the same is verified by the
respondent on this _______ day of _________.
Respondent
Specimen No. III

Page 6 of 9
AT __________
M.P.NO ___________ / 20___
Petition for Restitution of Conjugal Rights
The Petitioner abovementioned begs to state most respectfully as follows:—
(1) The Petitioner states that the marriage between the Petitioner and the Respondent was solemnised as per
the Hindu Vedic rites and ceremonies on _______ date at _______ (Place). The Petitioner was a bachelor
and the Respondent was a spinster before the solemnisation of the marriage.
(2) The Petitioner states that the maiden name of the Petitioner was __________ and after marriage her name
is ___________.
(3) The Petitioner states that the Petitioner after marriage started residing with the Respondent at the
matrimonial home immediately after the marriage. The Petitioner states that the Respondent told the
Petitioner on _________ date that his office is sending him to _________ country on some project work for
the duration of three weeks and that during this tenure she should stay with her parents. The Petitioner
was surprised to know about the travel plan and stay of the Respondent and told the Respondent that she
would stay in the matrimonial home with her mother-in-law and would occasionally visit her parents.
(4) The Petitioner states that the Respondent insisted that this Petitioner should not stay at the matrimonial
home but go and stay with her parents. The Petitioner therefore as per the desire and wish of the
Respondent went to stay with her parents. The Petitioner states that, the Respondent had gone abroad
only for 10 days and not for three weeks as was told to her by the Respondent. The Petitioner came to
know about the same through Mr. _________ who is the relative of the Respondent. The Petitioner states
that the Respondent after returning from the business tour never contacted the Petitioner. The Petitioner
was shocked, hurt and was deeply saddened to know that the Respondent had lied to her and was not
interested to take the Petitioner to the matrimonial home.
(5) The Petitioner submits that in order to sort out the matter, the Petitioners father on _________ date met the
Respondent. The Respondent agreed to meet the Petitioner and take her back to the matrimonial home on
the following day. However, the Respondent never came to meet the petitioner and her parents. The
Petitioner states that whenever this Petitioner contacted the Respondent over the phone, the Respondent
made false promises. The Petitioner’s father also tried to meet the Respondent again but he avoided
meeting the Petitioner’s father under some pretext or the other..
(6) The Petitioner submits that the behaviour of the Respondent has caused embarrassment and harassment
to her. The Petitioner states that in spite of all this she is still ready to excuse and forgive the Respondent,
if the Respondent is genuinely interested in living with the Petitioner as husband and wife.
(7) The Petitioner submits that the Respondent has refused to cohabit with the Petitioner and is avoiding the
company of this Petitioner. The Petitioner submits that the Respondent has forced the Petitioner to stay
with her parents from _________ date and thus the Respondent is living separately from the Petitioner
without just cause and reason.
(8) The Petitioner submits that as all her efforts failed, she is seeking intervention of the Hon’ble Court for
restitution of conjugal rights. Hence the present petition.
(9) The Petitioner states that there is no collusion or connivance between the Petitioner and the Respondent in
presenting this petition.
(10) That there is no legal impediment or other ground as to why the relief as prayed should not be granted.
(11) That the marriage was solemnised at _________ (Place) and the parties are presently residing at
________ (Place), i.e., within the territorial jurisdiction of this Hon’ble Court. Hence this court has the
jurisdiction to entertain, try and decide the present petition.
Page 7 of 9
(12) That the appropriate court fee and stamp fee is paid hereunder.
(a) A decree for restitution of conjugal rights may please be passed against the Respondent.
(b) Pass any order which is just and reasonable and deemed fit in the interest of justice.
An Affidavit in support is filed herewith.
Place________
Verification
Petitioner
Specimen No. IV (Reply)
BEFORE THE HON’BLE FAMILY COURT, _______,______
AT ______
M.P. No. __________/20_________________
Reply to Petition for Restitution of Conjugal Rights
The Respondent abovementioned most respectfully submits as follows:—
(1) The Respondent states that the petition of the Petitioner is not legal, valid and hence not tenable at law.
(2) The Respondent generally denies the contentions, allegations, etc. made in the petition under reply except
those which are specifically admitted herein.
(3) The Respondent states that the contents in Para 1 that marriage between the Petitioner and the
Respondent was solemnised as per the Hindu Vedic rites and ceremonies on _______ date. And that the
Petitioner was a bachelor and the Respondent was a spinster before the solemnisation of the marriage are
substantially true and correct and hence admitted by the Respondent.
(4) The Respondent states that the maiden name of the Petitioner was __________ and after marriage her
name is ___________ substantially true and correct and hence admitted by the Respondent.
(5) The Respondent states that the contents in Para No. 3 that the Petitioner after marriage started residing
with the Respondent at the matrimonial home immediately after the marriage, and that the Respondent told
the Petitioner that his company is sending him to _________ country on some project work for the duration
of three weeks and that during this tenure she should stay with her parents are not true. That the Petitioner
was surprised to know about the travel plan and stay of the Respondent and told the Respondent that she
would stay in the matrimonial home with her mother-in-law and would occasionally visit her parents as
alleged is not true and correct and as is tried to be made out and hence denied by this Respondent. The
Respondent states that he had informed the Petitioner before marriage that he is required to travel almost
for 10 to 15 days in a month since he is the senior Marketing Executive of ______ Company and at times
this Respondent is required to work on certain projects out of India also. Therefore all allegations in this
regard made by the Petitioner are false and hence denied. The Respondent submits that it was the
Petitioner who refused to stay at the matrimonial home and told the Respondent that she would stay at her
parent’s place when the Respondent is away on tours.
Page 8 of 9
(6) The Respondent states that the contents of Para 4 that, the Respondent insisted that this Petitioner should
not stay at the matrimonial home but go and stay with her parents and that the Petitioner therefore as per
the desire and wish of the Respondent went to stay with her parents are not true and correct and hence
denied by the Respondent. The further allegations that Respondent had gone abroad only for 10 days and
not for three weeks as was told to her by the Respondent and that the Petitioner came to know about the
same through Mr. _________ who is the relative of the Respondent as alleged is not true and correct and
is tried to be made out and hence strongly objected and vehemently denied by this Respondent. The
Respondent states that he never told the Petitioner that he is going for three weeks. He had told the
Petitioner that he is going for one month only. All allegations that the Respondent never contacted the
Petitioner after returning from the business tour and thus the Petitioner was hurt etc. are not true and
correct and the same are categorically denied by this Respondent.
(7) The Respondent states that the contents of Para No. 5 that Petitioner’s father to sort out the matter met the
Respondent on ______ date and the Respondent agreed to meet the Petitioner and take her back to the
matrimonial home on the following day and that the Respondent never came to meet the Petitioner and her
parents are not true and correct and hence denied by this Respondent. The further allegations that
whenever this Petitioner contacted the Respondent over the phone, the Respondent made false promises
and that the Petitioner’s father also tried to meet the Respondent again but he avoided meeting the
Petitioner’s father under some pretext or the other are not true and correct as alleged and as is tried to be
made out and therefore the same is denied by the Respondent.
(8) The Respondent states that the allegations of Para No. 7, that the behaviour of the Respondent has
caused embarrassment and harassment to her and that in spite of all this she is still ready to excuse and
forgive the Respondent, if the Respondent is genuinely interested in living with the Petitioner as husband
and wife are false and fabricated and highly imaginary. The Respondent states that there is no question of
Petitioner forgiving or excusing this Respondent. This Respondent has done nothing wrong to the
Petitioner thus the question of she forgiving and excusing him does not arise at all.
(9) The Respondent states that the contents of Para No. 8 that, the Respondent has refused to cohabit with
the Petitioner and is avoiding the company of this Petitioner. And that the Respondent has forced the
Petitioner to stay with her parents from _________ date and thus the Respondent is living separately from
the Petitioner without just cause and reason are not true and correct as alleged and as it is tried to be
made out and hence denied by this Respondent.
(10) The Respondent states that the contents of Para No. 9 that, as all her efforts failed, are not true and
correct hence denied by this Respondent.
(11) The Respondent states that no cause of action of any nature has accrued to the Petitioner and hence the
averments made in this regard are denied by this Respondent.
(12) The Respondent states that the Petitioner is not entitled to any relief as prayed for and the entire petition is
liable to be dismissed in toto.
Without prejudice to whatever stated herein above and without prejudice to any other right of this
Respondent, the Respondent states as follows:
(13) The Respondent states that the Petitioner on her own has gone to stay with her parents, in fact this
Respondent always wanted the Petitioner to stay with his mother and sister at the matrimonial house even
during the time that he was required to travel as part of his official duties. The Respondent states that the
Petitioner never wanted to stay so she left the matrimonial house and went to stay with her parents.
(14) The Respondent states that the Petitioner while they were on honeymoon told the Respondent that she
wants to stay in a big house with all modern amenities and facilities in a high class society. The
Respondent assured the Petitioner that within few years he will buy a big house and a car. The
Respondent states that the Petitioner was constantly comparing her parent’s house and the Respondent’s
house. The Respondent states that, by her constant comparison and comments the Respondent and his
family members were very upset and hurt and this Respondent time and again told the Petitioner to refrain
from making such comments.
(15) The Respondent states that when the Respondent informed the Petitioner that he has returned from the
tour, she did not show any readiness and willingness to come to the matrimonial home. The Respondent
states that the Petitioner is putting forth a false story that she came to know through a relative that the
Respondent has returned from the tour.
Page 9 of 9
(16) The Respondent states that the Respondent has shifted to another flat which is a bigger one so that the
Petitioner will be more comfortable. The Respondent states that the said flat is taken on rent only because
of the Petitioner. The Respondent states that, the Petitioner is well aware as to where the Respondent has
now shifted. The Respondent states that it is only after consulting the Petitioner and only on her approval
that the new premises have been acquired by this Respondent. It is very unfortunate that the Petitioner is
making such allegations against this Respondent.
(17) The Respondent states that the Respondent wants the Petitioner to cohabit with him at the matrimonial
home. The Respondent humbly states that, he has not withdrawn from the society of the Petitioner and all
such allegations are false, fabricated and imaginary and on these averments, decree for restitution of
conjugal rights cannot be passed.
(18) It is therefore most humbly prayed,
(i) Dismiss the Petition in limine.
(ii) Pass any order which is just and equitable as deemed fit in the interest of justice.
Place________
Verification
The above named Respondent hereby states that, the contents of the above reply from paragraphs 1 to 18 are true
and correct to the best of the knowledge, belief and information of this Respondent and the same is verified by the
respondent on this _______ day of _________.
Respondent
End of Document
9.4 Petition for Judicial Separation
Dr Medha Kolhatkar
MATRIMONIAL LAWS

Under the Hindu Marriage Act, 1955 either of the spouse can sue for Judicial Separation on any one of the grounds
stated in section 13(1), and a wife can also sue for judicial separation on any of the additional grounds laid down in
section 13(2) of the Act. Section 10 of the Hindu Marriage Act, 1955 which states the provision regarding judicial
separation is as under:—
(1) Either party to a marriage, whether solemnised before or after the commencement of this act, may present
a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of
section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as
grounds on which a petition for divorce might have been presented.
(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to
cohabit with the respondent, but the court may, on the application by petition of either party and on being
satisfied of the statements made in such petitions rescind the decree if it considers it just and reasonable to
do so.
Where a decree for judicial separation has been passed in favour of Petitioner then it shall no longer be obligatory
for the party/spouse to cohabit with the other party. A decree for judicial separation temporarily suspends the
marriage. However, the parties can remarry during the period of separation. If any of them remarries he or she will
be guilty of bigamy. Either party may be entitled to get maintenance from the other if the situation so warrants.
In the event of one of the parties dying, the other party will be entitled to inherit the property of the deceased.2
9.4.1 Specimen
Petition for Judicial Separation
Specimen No. I
BEFORE THE HON’BLE FAMILY COURT ______________
AT____________
Petition No.__________ /20____
Name -
Age -
Occupation Petitioner
R/at –
Vs.
Page 2 of 4
Name -
Age -
Occupation Respondent
R/at –
Petition for judicial separation
The petitioner above-named states most respectfully as follows:
(1) The Petitioner states and submits that the Petitioner and the Respondent got married on _________ date
at _____ (Place), as per Hindu religious rites and ceremonies. That no issues are born out of the wedlock.
(2) The maiden name of the Petitioner was __________ and after marriage her name now is __________.
(3) The Petitioner states that the Respondent and his parents have treated this Petitioner with cruelty. Due to
the constant mental and physical cruelty and torture committed by them, the Petitioner had filed police
complaint against the Respondent and her in-laws at ______ police station. The Petitioner craves leave of
this Hon’ble Court to read the said police complaint as part and parcel of this petition.
(4) The Petitioner states that because of the intervention of the uncle of the Respondent and because of the
assurance given by the Respondent that henceforth no demands for dowry would be made and the
Petitioner will be treated well by him and his parents, this Petitioner returned to her matrimonial home on
______date.
(5) The Petitioner states that contrary to the assurances made, the Respondent and his parents again started
treating this Petitioner with cruelty. The in-laws continued to humiliate and taunt her for not getting
sufficient dowry. The Petitioner states that on ______ date the Respondent came home drunk and the
Petitioner was beaten mercilessly by the Respondent. The Petitioner submits that her in-laws have
snatched her valuable belongings and jewelry. Hence, it became impossible for the Petitioner to stay at her
matrimonial home.
(6) The Petitioner states that because of the harassment for not bringing dowry and the ill-treatment meted-out
to her, she was forced to leave matrimonial home on _____ date and from then onwards the Petitioner is
staying with her parents. The Petitioner has annexed herewith a list of her belongings and jewelry which is
in the possession and custody of the Respondent. The said belongings and jewelry are given to her by her
parents and the Respondent has no right over the same. Therefore, the Respondent is liable to hand-over
the same to this Petitioner.
(7) The Petitioner states that, all efforts made by her to save the marriage have failed hence the present
petition for judicial separation.
(8) That the petition is not presented in collusion with the Respondent.
(9) That there are no other proceedings between the parties.
(10) The Petitioner submits that there has not been any unnecessary or improper delay in presenting this
petition.
(11) That the marriage was solemnised at _________ and the Petitioner and Respondent last resided together
as husband and wife at _______ therefore this Hon’ble Court has jurisdiction to entertain, try and decide
(12) It is, therefore, most respectfully prayed as follows:—
(i) That a decree for judicial separation may be passed in favour of the petitioner and against the
respondent.
(ii) Award costs of this petition.
(iii) Any other just and equitable order may please be passed as deemed fit in the interest of justice.

Page 3 of 4
Place________
Verification
I, ____________ Age ________ Occupation.__________ R/at ______________ The petitioner above-named do

hereby state and declare that the contents of the above paragraphs are true and correct to the best of my
knowledge, belief and information. The Petitioner has signed and verified the same on the abovementioned date.
Petitioner
Specimen No. II
IN THE COURT OF FAMILY JUDGE ___________
AT __________
M.P. NO. _____________/ 20____
Petition for judicial separation
The petitioner above-named states most respectfully as under:
(1) That the Petitioner married the Respondent on ________ date at _____ (Place) as per Hindu Vedic Rites
and Ceremonies including “Saptapadi” and “Lajja Home”.
(2) That after marriage the Petitioner came to reside with the Respondent at his home at ________ (Place)
where the Respondent was residing with his parents and sister.
(3) That from the very next day the Respondent along with the parents started telling the Petitioner that
marriage ceremony was not performed as per their standard and status in life and therefore now she
(petitioner) should get money, silverware, gold ornaments from her father. The Petitioner was not even
allowed to have full meals. The Petitioner was made to work in the house like slave from morning to
evening.
(4) The Petitioner submits that when she protested against the unreasonable and cruel behaviour of the
Respondent, Respondent slapped the Petitioner and pushed her with so much of force that her head
banged on the iron rod fixed along the wall. Because of the said injury she fell unconscious. The
Respondent did not bother to give the Petitioner any medical attention for the injury caused by him.
(5) The Petitioner submits that the Respondent constantly taunted her and called her an illiterate and rustic
villager. The mental and physical cruelty committed by the Respondent and his parents have made it
impossible for the Petitioner to stay in the matrimonial home under these circumstances. The constant
harassment for money, slogging like a slave from dawn to dusk either with little food or no food made the
petitioner very weak and anaemic.
(6) The Petitioner, therefore, on _____ date somehow managed to send a message to her father explaining
the miserable condition in which she was. The Petitioner’s father therefore immediately came on _______
date and took away this Petitioner on _______ date from her matrimonial house. Since then the Petitioner
is staying with her parents.
(7) The Petitioner submits that for all the above reasons, the petitioner is unable to live with the Respondent
and therefore is entitled to a decree for judicial separation.
(8) That the petition has not been presented or is being prosecuted in collusion with the Respondent and there
has been no delay in presenting this petition.
(9) That the marriage was solemnised at _______ (Place) and the parties last resided together at _______
(Place). Hence this Hon’ble Court has jurisdiction to entertain, try and decide this petition.
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(10) It is therefore most respectfully prayed as follows:—

(i) That a decree for judicial separation may be passed in favour of the Petitioner and against the
Respondent.
(ii) Award costs of this petition to the petitioner.
(iii) Any other just and equitable order may please be passed as deemed fit in the interest of justice.
Place________
Verification
Petitioner
2 Narasimha Reddy v M Boosamma, AIR 1976 AP77.
End of Document
9.5 Petition for Nullity of Marriage
Dr Medha Kolhatkar
MATRIMONIAL LAWS

Section 12 of Hindu Marriage Act, 1955 lays down the provision pertaining to Nullity of Marriage.
Many a times marriages are solemnised without informing the other party about the true, correct and full details of
the other party. As a result of the same, great hardship is caused to the aggrieved party. Therefore, section 12 of
the Hindu Marriage Act provides for declaration of such a marriage as a nullity. For example, if the respondent is
impotent, or if the consent is not a free consent then such a marriage becomes voidable and the aggrieved party
may apply to the court for decree of nullity to seek the marriage as null and void.
Section 12 is as follows:
(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be
annulled by a decree of nullity on any of the following grounds, namely:—
(a) that the marriage has not been consummated owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was
required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint
(Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to
the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding any contained in sub-section (1), no petition for annulling a marriage:—
(a) On the ground specified in clause (c) of sub-section (1) shall be entertained if:—
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may
be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or
wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied:—
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement
of this Act within one year of such commencement and in the case of marriages solemnised after such
commencement within one year from the date of the marriage; and
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(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the
petitioner of the existence of the said ground.
(iv) Non disclosure of age and factum of having major children by husband at the time of marriage
amounts to fraud and suppression of material facts having bearing on marriage. Marriage founded on
fraud from very inception is a nullity; Sunder Lal Soni v. Smt. Namita Jain, AIR 2006 MP 51.
(iv) Misrepresentation as to the age of the bridegroom made to the mother who acted as an agent and the
daughter consented for the marriage believing the statement to be true. It was held that the consent
was vitiated by fraud; Babui Panmate v. Ram Agya Singh, AIR 1968 Pat 190.
9.5.1 Specimen
Specimen
IN THE COURT OF FAMILY JUDGE ____________
AT__________
Marriage Petition No ______/20___
Petition under section 12 of Hindu Marriage Act, 1955, for a decree of nullity of marriage.
The Petitioner above-named states most respectfully as under:—
(1) That the Petitioner is a Software Engineer working for ________ company earning Rs 15 lakhs per annum.
(2) That the Petitioner submits that he married the Respondent on _______ date. The maiden name of the
Respondent is ______.
(3) That the Petitioner states that his marriage with the Respondent is an arranged marriage. The
Respondent’s father had approached the Petitioner’s maternal uncle with the marriage proposal for his
daughter.
(4) The Petitioner states that the Respondent’s father had informed this Petitioner’s maternal uncle Mr. _____
that the Respondent is well educated and is M. Com. from _____ University.
(5) The Petitioner states that as this Petitioner lost his father when he was 3 years old, it is his maternal uncle
Mr. _____ and his mother who have looked after this Petitioner.
(6) The Petitioner states that the Respondent’s father had given the horoscope and other personal details of
this Respondent wherein it is clearly stated that the Respondent is M. Com.
(7) The Petitioner states that the Respondent is only 12th pass and the said fact now has been admitted by
the Respondent and her parents. Thus the respondent and her parents have practiced fraud on this
Petitioner. The Respondent has poor eye sight and is suffering myopia and the retina of her right eye is
severely damaged. All these important facts were not revealed to this Petitioner at the time of obtaining his
consent for the marriage.
(8) That the Petitioner met the Respondent at his uncle’s place for the first time. They spoke to each other for
almost 20-25 minutes. Thereafter the Petitioner met the Respondent at the Respondent’s house to spend
some time together. The Respondent in all the meetings with the Petitioner did not disclose her eye sight
problem to this Petitioner.
(9) The Petitioner submits that, at the time of marriage ceremony the Petitioner noticed that the Respondent is
unable to participate and perform the religious ceremonies comfortably. The Petitioner states that because
of the weak eye sight, the Respondent was finding it difficult to perform the marriage ceremonies.
(10) That thereafter, when the Respondent came to the house of this Petitioner, it is then the Petitioner and his
mother realised that the Respondent has great difficulty in seeing and her eyesight is weak. They took her
to the eye specialist who said that she is suffering from myopia and her retina is damaged. Even after
Page 3 of 3
surgery there is no guarantee that her eyesight will improve and also informed that the Respondent has
been having poor eyesight for many years.
(11) That due to all this the Petitioner and his mother were in a state of shock. They decided to seek second
opinion in the matter. They thereafter took the Respondent to Dr. ______ who told them that he has
examined the Respondent in the past and gave the same opinion as that of Dr. ____. Dr. _______ also
informed the Petitioner that the respondent’s father was completely aware about the condition of the
Respondent.
(12) That the Petitioner, therefore, submits that the Respondent and her relatives have practiced fraud on this
Petitioner and his mother by withholding the vital information as to the status of the eyesight of the
Respondent and her educational qualifications. This Petitioner would not have agreed and consented to
the said marriage if these significant facts had been disclosed by the Respondent and her parents at the
time of fixation of the marriage. The said marriage therefore, is liable to be annulled.
(13) That the petition filed today is within time as the discovery of fraud was made on or about ________ date.
(14) That the petition is not presented or prosecuted in collusion with the Respondent.
(15) That the marriage was solemnised at _______ (Place) hence the court has jurisdiction to entertain, try and
decide the present petition.
(16) It is, therefore, most respectfully prayed that
(a) A decree of nullity be passed in Petitioner’s favour against the Respondent annulling the marriage
solemnised on _______ date between the parties.
(b) Award costs of this petition to the Petitioner from the Respondent.
Place________
Verification
Petitioner
End of Document
9.6 Marriage Petitions for Divorce
Dr Medha Kolhatkar
MATRIMONIAL LAWS

Section 13 of Hindu Marriage Act, 1955 states the grounds on which either of the spouses to the marriage can seek
divorce.
Section 13 of Hindu Marriage Act, 1955 lays down:
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition
presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the
other party—
(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other
than his or her spouse; or
(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding
the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live
with the respondent.
Explanation—In this clause,—
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind,
psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not
including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible
conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment;
or
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vi) has not been heard of as being alive for a period of seven years or more by those persons who would
naturally have heard of it, had that party been alive;
Explanation.—In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the
marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful
neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be
Page 2 of 21
construed accordingly.
(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a
petition for the dissolution of the marriage by a decree of divorce on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of
one year or upwards after the passing of a decree for judicial separation in a proceeding to which they
were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of
one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which
they were parties.
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the
ground,—
(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had
married again before such commencement or that any other wife of the husband married before such
commencement was alive at the time of the solemnisation of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or
bestiality; or
(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a
proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or under the
corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as
the case may be, has been passed against the husband awarding maintenance to the wife
notwithstanding that she was living apart and that since the passing of such decree or order,
cohabitation between the parties has not been resumed for one year or upwards; or
(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen
years and she has repudiated the marriage after attaining that age but before attaining the age of
eighteen years.
Explanation.—This clause applies whether the marriage was solemnised before or after the commencement of the
Marriage Laws (Amendment) Act, 1976 (68 of 1976).
9.6.1 Divorce by Mutual Consent
In case of divorce by mutual consent, the mere filing of such a petition does not authorise the court to pass a
decree for divorce. There is a period of waiting from 6 to 18 months. This period is intended to give time and
opportunity to the parties to think upon their move. A party to the petition can unilaterally withdraw the consent, the
mutual consent contemplated by the section must continue till divorce decree is passed in the case.3
Section 13B(2): Cooling off period—The object is to enable the parties to dissolve marriage by consent if marriage
has irretrievably broken down to enable the parties to rehabilitate as per available options.
Object of cooling-off period of six months before grant of decree of divorce is to safeguard against hurried decision
if there is possibility of reconciliation. The object is not to perpetuate purposeless marriage or to prolong agony of
parties where there are no chances of reconciliation.4
9.6.2 Specimen
Specimen
Page 3 of 21
IN THE COURT OF FAMILY JUDGE, ___________ (PLACE)
AT ________ (PLACE)
M.P. NO.________ /20____
Petition for divorce by mutual consent under section 13B(1) of The Hindu Marriage Act, 1955
The Petitioners above-named most respectfully submit as under:—
(1) That the Petitioner No. 1 and Petitioner No. 2 got married on __________date at _________(Place)
according to the Hindu Vedic rites and ceremonies.
(2) That after the marriage was solemnised between the parties they cohabited and resided together for 1 year
at _________ (Place). No child was born out of the wedlock.
(3) The maiden name of the petitioner No. 2 is ____________ and after marriage her name is ____________.
(4) The petitioners submit that, that the parties to the petition could not get along due to temperamental
differences and life-style differences. Thus the parties are living separately from ___________ date and
have also not cohabited since then.
(5) That the parties to this petition have amicably agreed to dissolve their marital tie by mutual consent. Hence
(6) That the parties further submit that, the Petitioner No. 1 has agreed to pay and shall pay an amount of Rs.
_______ (Rupees ________________) to the Petitioner No. 2 towards one time maintenance and
thereafter no claim shall be made by the Petitioner No. 2 against the Petitioner No. 1
(7) That the parties hereby declare that, this mutual consent petition is presented and executed by them out of
their free-will and is not actuated by any force, fraud, or undue influence etc.
(8) That the petitioners submit that, there is no collusion or connivance in presenting the said petition.
(9) That there is no legal impediment in granting the petition.
(11) That the marriage between the parties was solemnised at ______ (Place) and they last resided together as
husband & wife at ______ (Place) therefore this Hon’ble court has jurisdiction to entertain, try and decide
(12) It is, therefore, most humbly prayed as under—
(i) That the marriage between the parties may please be dissolved by a decree for divorce by mutual
consent under section 13B(1) of the Hindu Marriage Act, 1955.
(ii) That any other relief(s) which this court may deem fit and proper under the circumstances of the case
may be passed in favour of petitioners.
An affidavit in support is filed herewith
Place________ Petitioner No. 1
Date ________ Petitioner No. 2
Verification
The petitioners above-named, residing at __________ and _________ do hereby solemnly declare and state that
whatever is stated in Paragraph 1 to Paragraph 12 is true and correct to the best of the knowledge & belief of these
petitioners.
Page 4 of 21
Verified at _________(Place) on this _______ day of _________ 20____.
Petitioner No. 1
Petitioner No. 2
9.6.3 Petition for Divorce on the Ground of Cruelty
Cruelty for the purpose of section 13(1)(ia) is to be taken as a behaviour by one spouse towards the other, which
causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the
matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to
the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to
establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of
the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can
only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial
life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively.
In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then
pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to
take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a far
inference whether the Petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the
other.5
In A Jayachandra v Aneel Kaur, the court observed that the expression “cruelty” has not been defined in the Act.
Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful
and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give
rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light
of the norms of marital ties of the particular society to which the parties belong, their social values, status,
environment in which they live.6
Specimen No. I
AT __________
M.P. NO. ___________ / 20___
Petition for divorce on the ground of cruelty
The Petitioner states most respectfully as follows:-
Hindu Vedic rites and ceremonies on ____ date at ____ place.
(2) The maiden name of the Respondent is ____ and after marriage her name is ____.
(3) The Petitioner states that no children are born from the said wedlock.
(4) The Petitioner states that the Respondent’s behaviour towards him and his family members has never
been good. The Respondent is rude, ill-mannered and quarrelsome by nature. The Respondent never
respects the elders and talks to all in an arrogant manner. The Petitioner states that, on number of
occasions the Petitioner tried to tell the Respondent to be polite and respectful to his parents but the
Respondent has not changed at all.
(5) The Petitioner states that this Petitioner is an Army Officer. On the day of Holi, some Jawans had visited
this Petitioner to greet him on the occasion of Holi and in the presence of these Jawans and other officers
the Respondent shouted and abused this Petitioner in a filthy language. The Respondent was unable to
Page 5 of 21
find keys of her Scooter and thus she created a scene on the day of Holi. The Petitioner says that the
behaviour of the Respondent has caused a lot of disappointment, frustration and anxiety to this Petitioner.
(6) The Petitioner states that the Respondent on ____ date without the knowledge and consent of the
Petitioner, terminated her pregnancy. The Petitioner was shocked and felt aghast. The Petitioner states
that the Respondent has caused mental cruelty to this Petitioner. The Petitioner states that the Respondent
does not feel slightest remorse and regret for her follies.
(7) The Petitioner states that whenever this Petitioner expresses his displeasure regarding Respondent’s
behaviour, the Respondent threatens this Petitioner as well as his family members saying that her uncle
and cousin are advocates and that they would make the life of the Petitioner and his family miserable.
(8) The Petitioner states that the Respondent has also made false and baseless complaints of this Petitioner
to his superior which has seriously affected his career prospects.
(9) The Petitioner states that on ____ date he has joined his new posting at ____. The Respondent on ____
date has left the matrimonial home and is now staying with her uncle at ____.
(10) The Petitioner states that under these circumstances it is impossible for the Petitioner to continue with the
marital tie. The Respondent has time and again committed cruelty on this Petitioner. Thus due to the
behaviour of the Respondent, the marriage between the Petitioner and the Respondent has reached a
stage beyond salvage. Hence, the petition for divorce.
(12) The marriage between the Petitioner and the Respondent was solemnised at____ (Place), the parties last
resided together at ____ (Place), therefore this Hon’ble Court has jurisdiction to entertain, try and decide
the petition.
(13) That the cause of action for the petition arose on _______ date and thereafter everyday till the filing of this
petition.
(15) It is therefore most humbly prayed that the Hon’ble Court be pleased to:—
(a) Pass a decree of divorce, thereby dissolving the marriage between the Petitioner and the Respondent,
(b) Award costs of the petition from the Respondent to the Petitioner.
(c) Pass any other order which is just and equitable as deemed fit in the interest and justice.
Place________
Verification
Petitioner
Specimen No. II
IN THE COURT OF FAMILY JUDGE ____________(PLACE)
AT __________ (PLACE)
M.P. No.__________ /20___

Page 6 of 21
Petition for divorce on the ground of cruelty
The Petitioner above-named most respectfully states as under:—
(1) That the Petitioner and the Respondent were married on ________date as per Hindu Vedic Rites and
Ceremonies at _____ (Place). That after the marriage the Petitioner and the Respondent made their
matrimonial home at _____(Place).
(2) That the Petitioner says and submits that two children are born out of the said wedlock. The names of the
children are _________ and ________. They are studying at ______ school and are in _________ and
_______ standard respectively.
(3) That the Petitioner says and submits that during the first few years of marriage there were minor
differences and the Respondent occasionally used to come drunk to the house. However, the Petitioner
tried to prevail upon the good sense of the Respondent and called upon him to give up the obnoxious
habit. However, with the passage of time the Respondent’s drinking habit increased and the Respondent
has now become a total alcoholic.
(4) That the Petitioner says and submits that the Respondent within few years of the marriage started showing
his true colours, by harassing, torturing and using physical violence against the Petitioner. That the
Respondent started coming home drunk at any time of the day or night, used to abuse or accuse the
Petitioner and would demand money from her and when the Petitioner refused, the Respondent used to
mercilessly beat her and the children.
(5) That the Petitioner says and submits that the Respondent even used to take away the household articles,
jewellery etc. and used to sell them and the money so made was spent on alcohol.
(6) That the Petitioner says and submits that the conduct of the Respondent has not only financially weakened
the Petitioner, it has also started affecting the education, proper upbringing of the children. The Petitioner is
required to borrow money from her father, friends etc. to meet the educational and other expenses of
herself and the children. The Respondent neither is earning nor is making any effort to settle the bills of
household expenses.
(7) That the Petitioner says and submits that the Respondent has even stopped going to work and if any effort
was made to find a new job either by the Petitioner or her father, the Respondent refused to take up the
job. That the Petitioner, therefore, submits that the Respondent has failed and neglected to look after the
Petitioner and the children and has failed to perform all his marital obligations and responsibilities.
(8) That the Petitioner says and submits that the Respondent is guilty of having committed the matrimonial
offence of cruelty both physical and mental.
(9) That the Petitioner says and submits that the Petitioner is working as an office assistant and with great
efforts is trying to meet the two ends. That the Petitioner is out of the house for quite some time and due to
the conduct of the Respondent, the Petitioner has kept the children with Petitioner’s father.
(10) That the Petitioner says and submits that the Petitioner tolerated all the torture, harassment etc. hoping
against hope that the Respondent will change some or the other day.
(11) That the Petitioner states that with the help of her father and her brother, she admitted the Respondent to
_____ centre to cure his alcohol addiction. But the Respondent refused to take any treatment.
(12) That the Petitioner says and submits that the Respondent’s cruel behaviour reached its climax when the
Respondent took away the Mangalsutra and the other jewellery of the Petitioner and expelled the Petitioner
and the children from the matrimonial home.
(13) That the Petitioner says and submits that the Respondent’s barbaric, inhuman and violent behaviour
continued to increase and the Respondent has dragged out the petitioner from the matrimonial home on
_____ date.
(14) That the Petitioner says and submits that the Petitioner is now staying with her father and is making efforts
to maintain herself and the children. The Petitioner states that the marriage between the Petitioner and the
Page 7 of 21
Respondent has come to an end due to the cruel and irresponsible behaviour of the Respondent. Hence,
the present petition for divorce.
(15) That the Petitioner says and submits that there is no collusion or connivance between the Petitioner and
the Respondent in presenting this petition.
(16) That the marriage between the Petitioner and the Respondent was solemnised at _______ (Place) the
parties last resided together at _______(Place) and therefore this Hon’ble Court has jurisdiction to try,
entertain and decide the petition.
(17) That the cause of action for the petition arose on _______date and thereafter, every day till the filing of this
petition.
(19) It is, therefore, prayed that the Hon’ble Court be pleased to:—
(a) Pass a decree of divorce, thereby dissolving the marriage between Petitioner and the Respondent.
Place________
Verification
I, ____________ Age ________ Occupation.__________ R/at ______________
The Petitioner above-named do hereby state and declare that the contents of the above paragraphs are true and
correct to the best of my knowledge, belief and information. I have signed and verified the same on the
abovementioned date.
Petitioner
SPECIMEN No. III (Reply)
Reply to Petition of Cruelty
BEFORE THE HON’BLE FAMILY COURT, _______,
______AT ____
M.P. No. __________/20___
______________ Petitioner
Vs.
______________ Respondent
Reply to the Petition for Divorce on the Ground of Cruelty
The Respondent abovementioned most respectfully submits as follows:—
law.
Page 8 of 21
(3) The Respondent states that the contents in Para No. 1 of the Petitioner and the Respondent were married
on ______ date as per Hindu Vedic rites and ceremonies at _______ (Place). That after the marriage the
Petitioner and the Respondent made their matrimonial home at ________ (Place) is substantially true and
correct and hence admitted by the Respondent.
(4) The Respondent states that the contents in Para No. 2 of the Petition that two children are born out of the
said wedlock and the names of the children are _______ and _____ is substantially true and correct and
hence admitted by the Respondent.
(5) The Respondent states that the allegations in Para No. 3 that during the first few years of marriage there
were minor differences and the Respondent occasionally used to come drunk to the house and that the
Petitioner tried to prevail upon the good sense of the Respondent and called upon him to give up the
obnoxious habit; however, with the passage of time the Respondent’s drinking habit increased and that the
Respondent has now become a total alcoholic is not true and correct as alleged and as is tried to be made
out and hence strongly objected to and vehemently denied by this Respondent.
(6) The Respondent states that the allegations in Para 4 that the Respondent soon after the marriage showing
his true colours started harassing, torturing and using physical violence against the Petitioner and that the
Respondent started coming drunk at any time day or night, used to abuse the Petitioner, demand money
from her and when the Petitioner refused, the Respondent used to mercilessly beat her and the children.
All the allegations are false, fabricated and highly imaginary and hence denied by this Respondent.
(7) The Respondent states that the allegation in Para No. 5, that the Respondent even used to take away the
household articles, jewellery etc. and used to sell them and the money so made was spent on alcohol is
not true and correct and hence denied by the Respondent.
(8) The Respondent states that the allegation in Para No. 6 that the conduct of the Respondent has not only
financially weakened the Petitioner and it has also started affecting the education, proper upbringing of the
children is not true and correct and hence denied by the Respondent.
(9) The Respondent states that the allegation in Para No. 7 that the Respondent has even stopped going to
work and if any effort was made to find a new job either by the Petitioner or her father, the Respondent
refused to take up the job and that the Petitioner therefore submits that the Respondent has failed and
neglected to look after the Petitioner and the children and has failed to perform all his matrimonial
obligations and responsibilities is not true and correct and hence denied by the Respondent.
(10) The Respondent states that the allegation in Para No. 8 that the Respondent is guilty of having committed
the matrimonial offence of cruelty both physical and mental is not true and correct and hence denied by the
Respondent.
(11) The Respondent states that the allegation in Para No. 9 that the Petitioner is working as an office assistant
and with great efforts is trying to meet the two ends. That the petitioner is out of the house for quite
sometime and due to the conduct of the Respondent, the petitioner has kept the children with their
grandfather is not true and correct and is tried to be made out and hence denied by the Respondent.
(12) The Respondent states that the allegation in Para No. 10 that the petitioner tolerated all the torture,
harassment etc. hoping against hope that the Respondent will change some or the other day is not true
and correct and hence denied by the Respondent.
(13) The Respondent states that the allegation in Para No. 12 that the Respondent’s cruel behaviour reached
its climax when the Respondent took away the Mangalsutra and the other jewellery of the Petitioner and
has expelled the Petitioner and the children from the matrimonial home is not true and correct as is alleged
and as is tried to be made out and hence denied by the Respondent.
(14) The Respondent states that the allegation in Para No. 13 that the Respondent’s barbaric, inhuman and
violent behaviour continued to increase and the Respondent has dragged out the petitioner from the
matrimonial home on _____ date is not true and correct and is tried to be made out and hence denied by
the Respondent.
(15) The Respondent states that the allegation in Para No. 14 that the Petitioner is now staying with her father
and making efforts to maintain herself and the children is not true and correct as alleged and is tried to be
made out and hence denied except for the fact that the Petitioner is staying at her parent’s house.
Page 9 of 21
Without prejudice to whatever is stated hereinabove and without prejudice to any of the rights
of this Respondent the Respondent contends and states as follows:
(16) The Respondent states that he is not an alcoholic but the Respondent drinks only to socialise and that too
only occasionally and therefore the Respondent beating the Petitioner or ill treating her in order to demand
money to consume alcohol is all imaginary.
(17) The Respondent states that the Respondent was working at __________ (Place) but there was reduction
in staff and therefore the Respondent’s services were terminated. The Respondent has made several
attempts to get a job but without any success. The Respondent had applied at __________,
____________ and __________ places.
(18) The Respondent states that the Petitioner is unhappy with the respondent as he is unable to earn for the
family and she has been constantly instigated and brain washed by her parents to leave the Respondent
and hence she has filed the present petition.
(19) The Respondent states that as the financial condition was not good and many bills were pending, and to
meet other financial commitments, the Respondent and the Petitioner decided to sell the gold ornaments of
the Petitioner including the Mangalsutra.
(20) The Respondent states that the Petitioner herself had made this suggestion to the Respondent and
whatever money they received has been utilised to settle the bills and other expenses.
(21) The Respondent states that the Petitioner after arguing and fighting with this Respondent left the
matrimonial home on her own and has gone to stay with her parents.
(22) The Respondent states that the Petitioner has levelled all false allegations against this Respondent at the
instigation of her parents and her brother. Hence, the present petition is liable to be dismissed.
(23) The Respondent therefore most humbly prays as follow:—
(a) Dismiss the Petition for Divorce.
(b) Award costs to this Petitioner.
Place________
Verification
I, ____________ Age ________ Occupation.__________ R/at ______________ The Respondent above-named do

hereby state and declare that the contents of the above paragraphs are true and correct to the best of my
knowledge, belief and information. I have signed and verified the same on the above mentioned date.
Respondent
9.6.4 Divorce on the Ground of Desertion
Specimen No. I
BEFORE THE HON’BLE FAMILY COURT
AT ________
M.P. NO. ________ / 20____

Page 10 of 21
Petition for Dissolution of Marriage on the ground of “Desertion” under section 13(1)(1b) of the Hindu Marriage Act,
1955.
The petitioner above-named states most respectfully as follows:—
(1) That the marriage between the Petitioner and Respondent was solemnised as per Hindu Vedic rites &
ceremonies on _________ date at _______ (Place) and an affidavit in support of the same is filed
herewith.
(2) That the Petitioner was a bachelor and the Respondent was a spinster before the marriage and the maiden
name of the Respondent was ________ and after marriage her name is ____________.
(3) That no child was born out of the said wedlock.
(4) That the Petitioner submits that on or about ___________ date the Respondent left her matrimonial home
without any cause or justification. The Petitioner thereafter phoned her parents requesting them to send the
Respondent back. The Petitioner even tried to call the Respondent but she would either disconnect the call
or give evasive answers.
(5) The Petitioner submits that the Petitioner along with his elder brother and his wife went to the residence of
the Respondent’s parents and asked them to send the Respondent to the matrimonial home. The
Respondent’s parents said “we are helpless in the matter.” Thus all the efforts made by the Petitioner to
get the Respondent back to her matrimonial home are without any success.
(6) The Petitioner submits that after a lot of persuasion the Respondent revealed that she never wanted to
marry the Petitioner but her parents pressurised her to marry the Petitioner as he is of the same caste as
theirs and is financially well placed.
(7) The Petitioner submits that the Respondent informed him that she desires to marry some other person by
name _________ who is neither of their caste nor is financially well placed.
(8) The Petitioner submits that the Respondent has withdrawn from the company of the Petitioner in order to
continue her relationship with Mr. ____ and has deserted the Petitioner for a continuous period of two
years. The Petitioner states that the Respondent left the matrimonial home on ____ date and has never
returned to stay with this Petitioner. Thus the petitioner is now forced to seek divorce on the ground of
desertion from the Respondent.
(9) That there is no collusion or connivance in presenting the petition between the parties to this petition.
(10) That there has not been any unnecessary or improper delay in filing the petition.
(11) That the marriage was solemnised between the parties at _________ and they last resided together at
________ (Place) and hence this Hon’ble court has jurisdiction to entertain, try and decide this petition.
(13) It is therefore most humbly prayed as under—
(i) That the marriage between the Petitioner and the Respondent may please be dissolved by a decree for
divorce on the ground of desertion under section 13(1)(ib) of the Hindu Marriage Act, 1955.
(ii) Award costs of this petition to the Petitioner from the Respondent.
(iii) Pass any other order which is just and equitable as may deem fit in the interest of justice.
Place________
Verification
Page 11 of 21
I Mr.____________ Age _____Occupation________ R/at _____________the petitioner above-named do hereby

state that the contents of paragraphs 1 to 13 are true & correct to Petitioner’s knowledge, belief and information.
Verified at _________ on this __________ day of _____________.
Petitioner
Specimen No. II (Reply)
Reply for Divorce on the ground of Desertion
BEFORE THE HON’BLE FAMILY COURT
AT ________
M.P. NO. ________ / 20____
Reply to the Petition for Dissolution of Marriage on the ground of “Desertion” under section 13(1)(1b) of the Hindu
Marriage Act, 1955.
The Respondent above-named states most respectfully as follows:—
(1) The petition filed by the Petitioner is not legal, not valid and hence not tenable at law.
(2) The Respondent generally denies the contentions, allegations made in the petition except those which are
specifically admitted herein under.
(3) The Respondent states that the contents in Para 1 that the marriage between the Petitioner and the
Respondent was solemnised as per Hindu Vedic rites and ceremonies on ________ date at _____(Place)
is substantially true and correct and hence admitted by this Respondent
(4) The Respondent states that the contents in Para 2 that the Petitioner was a bachelor and the Respondent
was a spinster before the marriage and the maiden name of the Respondent was _____ and after marriage
her name is _______ is substantially true and correct and hence admitted by this Respondent.
(5) The Respondent states that the contents in Para 3 of the Petition that no child was born out of the said
wedlock is substantially true and correct and hence admitted by this Respondent.
(6) The Respondent submits that the averments in Para 4 of the petition that the Petitioner submits that on or
about _______ date the Respondent left the matrimonial home without any cause or justification and the
Petitioner phoned her parents requesting them to send the Respondent back and the Petitioner even tried
to call the Respondent but she would either disconnect the call or give evasive answers is not true and
correct and hence denied by this Respondent. The Respondent says and submits that all averments made
in this regard are false, fabricated and highly imaginary and the Petitioner be put to strict proof thereof.
(7) The Respondent submits that, the contentions in Para 5 of the petition that the Petitioner along with his
elder brother and his wife went to the residence of the Respondent’s parents requesting them to send back
the Respondent to her matrimonial house. The Respondent’s parents said that “we are helpless in the
matter” and thus all efforts made by the Petitioner to get the Respondent back to her matrimonial home are
without any success. All these allegations are false and fabricated and hence the same are vehemently
denied by this Respondent.
(8) The Respondent submits that, the contents in Para 6 of the petition that after a lot of persuasion
Respondent revealed that she never wanted to marry the Petitioner but her parents pressurised her to
marry the Petitioner as he is of the same caste as theirs and is financially well placed. The Respondent
strongly objects to the said allegations and denies them in toto.
(9) The Respondent submits that, the contents in Para 7 of the petition that the Respondent informed the
Petitioner that she is in relationship with some other person by name __________ working at _______ who
Page 12 of 21
is neither of their caste nor is financially well placed. The Respondent submits that all these allegations are
not true and correct and are only imaginary and hence denied by this Respondent.
(10) The Respondent submits that the contents in Para 8 of the petition that the Respondent has withdrawn
from the company of the Petitioner in order to continue her relationship with Mr. _____ and has deserted
the Petitioner for a continuous period of two years and thus the Petitioner has now forced to seek divorce
on the ground of desertion from the Respondent also that the Respondent left the matrimonial on -_____
date and has never returned to stay with the Petitioner is not true and correct and hence the same are
strongly objected and completely denied by the Respondent.
Without prejudice to the aforesaid contentions and without prejudice to any of the rights of the
Respondent, the Respondent mostly humbly submits as follows:
(11) The Respondent submits that the Petitioner was never interested in leading matrimonial life with this
Respondent right from the date of solemnisation of the marriage.
(12) The Respondent states that the Petitioner never looked after the Respondent and attended to her
requirements during her stay at the matrimonial house. The Respondent is well educated and is working as
a school teacher in a private school. The Respondent submits that whenever this Respondent interacted
with her male colleagues, the Petitioner would pick up quarrels with the Respondent. However, she soon
realised that the Petitioner was looking for some excuse or the other to drive away the Respondent from
the matrimonial house. The Respondent was under lot of stress because of this behaviour of the Petitioner.
The Respondent states that the Petitioner is of very suspicious nature and this has made it difficult for the
Petitioner to stay with the Respondent.
(13) The Respondent submits that the Petitioner has levelled disgusting allegations of unchastity and indecent
familiarity of this Respondent with different persons outside the wedlock.
(14) The Respondent states that the Petitioner by his conduct has caused acute mental pain, agony and
suffering to this Respondent. The Respondent states that on _____ date it was the Petitioner who expelled
the Respondent from the matrimonial home and told her never to return to matrimonial home.
(15) The Respondent submits that the Respondent’s parents met the Petitioner and his elder brother and his
wife regarding the Petitioner’s behaviour towards the Respondent and it is the elder brother of the
Petitioner and his wife said that they are helpless in the matter.
(16) The Respondent submits that she never was in any relationship outside the wedlock as alleged or
otherwise. The Petitioner is shamelessly making these allegations against this Respondent. In fact when
the Respondent’s parents asked the Petitioner about his behaviour, he very rudely told the in-laws that the
Respondent should accept him the way he is.
(17) The Respondent submits that the Petitioner never came to the Respondent asking her to come back to the
matrimonial house and thus the Respondent had no alternative but to continue to live with her parents.
(18) The Respondent submits that the Petitioner has made false and imaginary allegations against this
Respondent and therefore this Petitioner is not entitled to any relief based on the said false and imaginary
allegations. Therefore, the petition deserves to be dismissed.
(i) Dismiss the petition of the Petitioner
(ii) Award costs to the Respondent.
Place________
Verification
Page 13 of 21
I, ____________ Age ________ Occupation.__________ R/at ______________
The Respondent above-named do hereby state and declare that the contents of the above paragraphs are true and
correct to the best of my knowledge, belief and information. I have signed and verified the same on the above
mentioned date.
Respondent
9.6.5 Petition for Divorce on the Ground of Cruelty and Desertion
Specimen No. I
________ AT _______
M.P. No. __________/20___
Vs.
Petition on the Ground of Cruelty and Desertion
The Petitioner abovementioned states most respectfully as follows:—
(1) The Petitioner states that both the Petitioner and the Respondent are Hindus by religion and had entered
into an arranged marriage on ____________ date. The marriage was performed as per the Hindu Vedic
rites and was solemnised at _______ (Place). At the time of marriage the Petitioner was a bachelor and
the Respondent was a spinster.
(2) The Petitioner states that after marriage the Petitioner and the Respondent started residing at the family
residence of the Petitioner/husband at _____________ (Place). The Petitioner contends that soon after the
marriage the respondent/wife started picking up quarrels with the husband and other family members on
trifling matters. The Petitioner states that the Respondent also started insisting for separate
accommodation. This Petitioner had in fact asked the Respondent before marriage as to whether she was
ready to stay in a joint family and the Respondent had agreed to stay in a joint family.
(3) The Petitioner states that the Respondent constantly pestered the Petitioner for separate accommodation.
The Petitioner reminded the Respondent that she had consented to stay in a joint family at the time of
marriage. The Petitioner tried his level best to persuade the Respondent and told her not to be adamant
but the Respondent instead of attempting to adjust with the family of the Petitioner denied him physical
contact thereby caused him mental and physical torture.
(4) The Petitioner states that the Respondent neglected and failed to perform all her household
responsibilities. The Respondent either watched T.V. or would sit in a corner of the room without doing any
work and did not bother to help the other members of the family when they did the household work and did
not interact with any member of the Petitioner’s family.
(5) The Petitioner states that the Respondent every now and then either after picking up quarrels with the
Petitioner or with other family members or otherwise, went to her parent’s house. So also the Petitioner
would go to _________place_ to visit her maternal uncle. The Respondent used to go to her parent’s
house or to her maternal uncle’s house without informing the Petitioner or any family member.
(6) The Petitioner states that on _________ date, the Respondent on a very trivial issue that the Petitioner’s
mother switched off the T.V. as the Respondent was in another room, the Respondent picked up quarrel
with the Petitioner’s mother and left the matrimonial home without informing anybody. When the Petitioner
came to know about the same, he went to the Respondent’s parent’s house to get the Respondent back to
Page 14 of 21
the matrimonial home and he was informed by her parents that the Respondent had gone to her maternal
uncle’s house.
(7) The Petitioner states that thereafter the Petitioner went to meet the Respondent at her maternal uncle’s
house, to bring her back to the matrimonial home but the Respondent refused to return to her matrimonial
home. She once again insisted on having a separate accommodation or else she would want divorce. The
Petitioner was now completely stressed and shattered. The Petitioner states that he did not want to stay
separately as he wanted to look after his ageing parents; moreover he neither had the necessary financial
capability to invest in separate accommodation. However, in order to save the marriage, this Petitioner
purchased a flat at ____________ (Place) on ______ date.
(8) The Petitioner states that at the time of purchasing the said flat the Petitioner called the Respondent
several times to see and approve the flat so that he can buy the same, but the Respondent was very
adamant and did not even bother to see the flat which the Petitioner was buying only on her demand and
insistence. The Petitioner on __________ date went to _______, i.e., to the house of Respondent’s
maternal uncle to get the Respondent back to the matrimonial home, but the Respondent refused to return
to the matrimonial home and told the Petitioner that she wanted divorce and was not interested to carry on
with the marital relationship. The maternal uncle of the Respondent also abused this Petitioner and told
him never to visit this place ever again.
(9) The Petitioner states that from ______ date, the Respondent has deserted the Petitioner without any just
cause. The Petitioner states that the Respondent has committed cruelty physical as well as mental from
time to time on this Petitioner. The Petitioner and the Respondent are staying separately for more than 3
(three) years. The Petitioner states that under the abovementioned facts and circumstances the present
Petitioner is seeking divorce on the ground of cruelty and desertion.
(11) The marriage between the Petitioner and the Respondent was solemnised at __________ (Place), the
parties last resided together at ___________ (Place), therefore this Hon’ble Court has jurisdiction to
entertain, try and decide the petition.
(12) That the cause of action for the petition arose on _______ date and thereafter everyday till the filling of this
petition.
(14) It is therefore most humbly prayed that the Hon’ble Court be pleased to:—
(b) Award costs of the Petition from the Respondent to the Petitioner.
(c) Pass any other order which is just and equitable as deemed fit in the interest and justice.
Place________
Verification
Petitioner
Reply to Cruelty and Desertion

Page 15 of 21
________ AT ______
M.P. No. __________/20___
Name_____
Age________ Petitioner
Occupation________
Residing At_________
Vs.
Name________
Age__________ Respondent
Occupation_______
Residing At________
Reply to the Petition for Divorce on the Ground of Cruelty and Desertion
The Respondent abovementioned states most respectfully as follows:—
(1) The Respondent states that the petition of the Petitioner is not legal, not valid and hence not tenable at
law.
(3) The Respondent states that the contents of Para No. 1 of the petition, that both the Petitioner and the
Respondent are Hindus by religion and had entered into an arranged marriage on ____________ date.
That the marriage was performed as per the Hindu Vedic rites, and was solemnised at _______ (Place).
That at the time of marriage the Petitioner was a bachelor and the Respondent was a spinster is
substantially true and correct and hence admitted by this Respondent.
(4) The Respondent states that the allegations in Para No. 2 of the petition that after the marriage the
respondent/wife started picking up quarrels with the Petitioner/husband and other family members on
trifling matters. That the Respondent also started insisting for separate accommodation are not true and
correct as alleged and tried to be made out and hence denied by this Respondent.
(5) The Respondent states that allegations in Para No. 3 of the petition that this Petitioner reminded the
Respondent that she had consented to stay in a joint family at the time of marriage. That Petitioner tried his
level best to persuade the Respondent and told her not to be adamant but the Respondent instead of
attempting to adjust with the family of the Petitioner denied him physical contact thereby caused him
mental and physical torture, all the allegations and averments are false as alleged and as is tried to be
made out and hence specifically denied by the Respondent.
(6) The Respondent states that allegations in Para No. 4 of the petition that the Respondent neglected and
failed to perform all her household responsibilities. That the Respondent either watched T.V. or would sit in
a corner of the room without doing any work and did not bother to help the other members of the family
when they did the household work are false and fabricated and strongly denied by the Respondent.
(7) The Respondent states that allegations in Para No. 5 of the petition that the Respondent every now and
then either after picking up quarrels with the Petitioner or with other family members or otherwise went to
her parents house; that the Petitioner would go to __________ to visit her maternal uncle; that the
Respondent used to go to her parent’s house or to her maternal uncle’s house without informing anybody;
that this Petitioner was required to search for her and used to find her at her parents’ house, all the
Page 16 of 21
allegations and averments are false and highly imaginary and hence vehemently denied by the
Respondent.
(8) The Respondent states that allegations in Para No. 6 of the petition that on _________ date, the
Respondent on a very trivial issue that the Petitioner’s mother switched off the T.V. as the Respondent was
in another room, the Respondent picked up quarrel with the Petitioner’s mother and left the matrimonial
home without informing anybody is false and denied by the Respondent. That, when the Petitioner came to
know about the same, he went to the parent’s house of the Respondent to get the Respondent back that
the Petitioner thereafter contacted the maternal uncle of the Respondent, who informed him that Petitioner
had come to stay with him are not true and correct and hence specifically denied by the Respondent.
(9) The Respondent states that allegations in Para No. 7 of the petition that the Petitioner went to meet the
Respondent and to bring her back to the matrimonial home but the Respondent refused to return to her
matrimonial home. That the Respondent insisted to have a separate accommodation or else she would
want divorce are not true and correct and are fabricated for the reasons best known to the Respondent.
The rest of the contents of the para that the Petitioner did not want to stay separately as he wanted to look
after his ageing parents are not true and correct, and hence denied by the Respondent. That Petitioner
neither had the necessary financial capability to invest in separate accommodation. And that, in order to
save the marriage, this Petitioner purchased a flat at ____________ (Place), are not true and correct, as
are tried to be made out and hence denied by the Respondent.
(10) The Respondent states that allegations in Para No. 8 of the petition that at the time of purchasing the said
flat the Petitioner called the Respondent several times to see and approve the flat so that he could buy the
same. That the Respondent was very adamant and did not even bother to see the flat which the Petitioner
was buying only on her demand and insistence. The Petitioner on __________ date went to _______, i.e.,
to the house of Respondent’s maternal uncle to get the Respondent back to matrimonial home, but the
Respondent refused to return to the matrimonial home and said that now she wanted divorce. That the
maternal uncle of the Respondent also abused this Petitioner and told him never to visit this place ever
again are not true and correct and hence not admitted by the Respondent.
(11) The Respondent states that allegations in Para No. 9 of the petition that from ______ date, the
Respondent has deserted the Petitioner without any just cause. That the Respondent has committed
cruelty physical as well as mental from time to time are false and specifically denied by the Respondent.
And the fact that the Petitioner and the Respondent are staying separately for more than 3 (three) years
are admitted by the Respondent.
Without prejudice to whatever is stated hereinabove and without prejudice to any of the rights
of this Respondent the Respondent contends and states as follows:
(12) The Respondent states and submits that at the time of marriage the Respondent’s parents had given 40
tolas of Gold ornaments and 2 kg of silver ware and silver ornaments and gifts to all relatives of the
Petitioner. The Respondent’s parents spent almost 4 to 5 lakhs at the time of marriage. The Respondent
states that the marriage was performed at the place decided by the Petitioner and his family. The venue
and the menu for all the matrimonial functions and ceremonies were decided by the Petitioner and his
family, only the bills were paid by the Respondent’s parents. The Respondent states that her parents are
clerks by profession and thus they had to raise a loan to meet the expectations of the Petitioner and his
family members.
(13) The Respondent states that this Respondent within one month’s time realised and understood that the
Petitioner and his family are all greedy people. Education, hard work and self esteem have no meaning in
the selfish and greedy world they live in. The Petitioner continuously pestered this Respondent to get
something or the other from her parents and when she refused, she was ill treated. All the family members
would sit and chat together but the Respondent was not included in the same and if she attempted to
participate, she was asked to shut her mouth and was made to sit in the corner or to do household duties.
(14) The Respondent states that she did her level best to adjust in her matrimonial home but the Petitioner or
her in-laws would pick up quarrels and find faults in anything and everything she did. The Respondent
continued to pull on against all odds hoping that the situation would change some day or the other.
However, on _______ date the quarrel between her and the Petitioner was a very serious one wherein the
Petitioner called her parents beggars. The manner in which the Petitioner spoke about the Respondent and
her parents, the Respondent was forced to leave her matrimonial home. As going to her parents would
Page 17 of 21
cause them more anxiety, this Respondent went to her maternal uncle who was helping her in searching
for a suitable job.
(15) The Respondent states that the Petitioner did come to her maternal uncle’s place but only to fight and
humiliate her. He never asked the Respondent to come back to her matrimonial home. It is the Petitioner
who has committed cruelty and forced the Respondent to leave the matrimonial home. It is true that the
Petitioner and the Respondent are living separately from _________date.
(16) The Respondent submits that the Petitioner purchased the flat at __________ by way of investment and
not at the behest of this Respondent. The Petitioner and his family have caused a lot of harassment,
tension and anxiety to this Respondent. The Respondent to come out of all this, is working in a private firm
as assistant accountant. The Petitioner never allowed this Respondent to work though she is well qualified.
Hence, the present petition is liable to be dismissed as it is based on false and fabricated facts.
(17) The Respondent therefore most humbly prays as follows:—
(a) Dismiss the petition for divorce.
Place________
Verification
mentioned date.
Respondent
9.6.6 Petition for Divorce on the Ground of Adultery and Desertion
Specimen No. I
______ AT _______
M.P. No. __________/20___
Vs.
Petition on the Ground of Desertion and Adultery
The Petitioner abovementioned states most respectfully as follows:—
the Hindu Vedic rites at _____ (Place) on ____________ date. The marriage was performed and was
solemnised at _______ (Place). The Petitioner was a spinster and the Respondent was a bachelor before
marriage.
Page 18 of 21
(2) The Petitioner states that the maiden name of the Petitioner was __________, after marriage her name is
__________.
(3) The Petitioner states that two daughters are born out of the wedlock. Their names are _______ and
_______ and they are of 10 years and 8 years old respectively. Both the daughters are studying in English
medium school.
(4) The Petitioner states that this Petitioner is a housewife and has no independent source of income. This
Petitioner wanted to work after marriage but the Respondent told her not to work but to perform household
responsibilities and look after her in-laws.
(5) The Petitioner states that sometime in the year ________ the Respondent changed his job and joined
_______ Company. It is at this new job the respondent became friendly with one Miss _________. Initially
this Petitioner did not get suspicious and thought that the two of them are just good friends. However,
gradually the Respondent under false excuses started coming home late. This Petitioner states that as she
grew suspicious, she checked the Respondent’s phone and the mobile phone messages on her husband’s
phone and the exchange of e-mails made it amply clear that the two of them are having an affair. Thus the
Respondent is guilty of adultery.
(6) The Petitioner states that on _____ date, quarrel took place between the Petitioner and Respondent, and
the Petitioner questioned the Respondent about his relation with Miss ________. The Petitioner states that
at that time the Respondent told the Petitioner that he is no more interested in the Petitioner and would be
very soon shifting with Miss_________ at a new flat at _____. The Petitioner requested the Respondent
not to leave her and their daughters. But the Respondent paid no heed to all the pleadings and requests of
this Petitioner and left the Petitioner and their daughters and shifted to the flat at _____ where he is staying
with Miss______ for almost 3 years.
(7) The Petitioner states that Petitioner’s parents and relatives met the Respondent and his parents in order to
save the marriage but all efforts were without any success. The Petitioner states that she was hoping
against hope that someday her husband, i.e., the Respondent would realise his mistakes and come back
to her and shoulder his responsibilities towards her and the daughters.
(8) The Petitioner states that this Petitioner waited patiently for all these years but now the Petitioner has lost
her hope and aspiration to lead a happy married life with the Respondent. The Petitioner states that the
Respondent has given only an amount of Rs. 1 lakh other than that he has done nothing for her and her
daughters. The Respondent does not even visit the daughters on their birthdays. The Respondent’s cold
and indifferent behaviour sufficiently indicates that he is not interested either in the Petitioner or her
daughters.
(9) The Petitioner states that under these facts and circumstances this Petitioner is left with no alternative but
to file this petition for dissolution of marriage.
(10) The marriage between the Petitioner and the Respondent was solemnised at ___________ (Place), the
parties last resided together at ___________ (Place), therefore, this Hon’ble Court has jurisdiction to
entertain, try and decide the petition.
(11) That the cause of action for the petition arose on _______date and thereafter everyday till the filling of this
petition.
(13) It is therefore most humbly prayed by the Petitioner that the Hon’ble Court be pleased to:—
(c) Pass any order just and equitable order as deemed fit in the interest and justice.
Place________
Verification
Page 19 of 21
Petitioner
REPLY TO THE PETITION OF DESERTION AND ADULTERY
______ AT _______
M.P. No. __________/20___
Vs.
Reply to the Petition on the Ground of Desertion and Adultery
The Respondent abovementioned states most respectfully as follows:—
law.
those which are specifically admitted hereinunder.
(3) The Respondent states that the contents of Para No. 1 of the Petition that the marriage between the
Petitioner and the Respondent was solemnised as per the Hindu Vedic rites at _____ (Place) on
____________ date. The marriage was performed and was solemnised at _______ (Place). The Petitioner
was a spinster and the Respondent was a bachelor before marriage is substantially true and correct and
hence admitted by this Respondent.
(4) The Respondent states that the contents of Para No. 2 of the Petition that, the maiden name of the
Petitioner was __________, after marriage her name is __________ are true and correct and hence
admitted by this Respondent.
(5) The Respondent states that the contents of Para No. 3 that the daughters are born out of the wedlock.
Their names are _______ and _______ and they are of 10 years and 8 years old respectively. Both the
daughters are studying in English medium school are substantially true and correct and hence admitted by
this Respondent.
(6) The Respondent states that the allegations of Para No. 4 that this Petitioner is a housewife and has no
independent source of income. This Petitioner wanted to work after marriage but the Respondent told her
not to work but to perform household responsibilities and look after the in-laws are not true and correct as
alleged and tried to be made out and hence denied by this Respondent.
(7) The Respondent states that the allegations of Para No. 5 that, the Respondent changed his job and joined
_______ Company and at this new job the respondent became friendly with one Miss _________. Initially
this Petitioner did not get suspicious and thought that the two of them are just good friends. However,
gradually the Respondent under false excuses started coming home late. And that the mobile phone
messages on her husband’s phone and the exchange of e-mails made it amply clear that the two of them
are having an affair. That the Respondent is guilty of adultery are not true and correct as alleged and tried
to be made out and specifically denied by this Respondent.
(8) The Respondent states that the allegations of Para No. 6 that, on _____ date, quarrel took place between
the Petitioner and Respondent, and the Petitioner questioned the Respondent about his relation with Miss
Page 20 of 21
________ and that the Petitioner states that at that time the Respondent told the Petitioner that he is no
more interested in her and would be very soon shifting with Miss _________ at a new flat at _____ and
that the Petitioner requested the Respondent not to leave her and their daughters. But the Respondent
paid no heed to all pleadings and requests of this Petitioner and left the Petitioner and their daughters and
shifted to the flat at _____ where he is staying with Miss ______ for almost 3 years are not true and correct
as alleged and as is tried to be made out and hence vehemently denied by this Respondent.
(9) The Respondent states that the allegations of Para No. 7 that Petitioner’s parents and relatives met the
Respondent and his parents in order to save the marriage but all efforts were without any success. And
that the Petitioner states that she was hoping against hope that someday her husband, i.e., the
Respondent will realise his mistakes and come back to her and shoulder his responsibilities towards her
and their daughters as alleged are not true and correct as alleged and hence specifically denied by this
Respondent.
(10) The Respondent states that the allegations of Para No. 8 that this Petitioner waited patiently for all these
years but now the Petitioner has lost her hope and aspiration to lead a happy married life with the
Respondent. And that the Petitioner states that the Respondent has given only an amount of Rs. 1 lakh
other than that he has done nothing for her and her daughters. The Respondent does not even visit their
daughters on their birthdays. The Respondent’s cold and indifferent behaviour sufficiently indicates that he
is not interested either in the Petitioner or her daughters are not true and correct and as is tried to be made
out and hence vehemently denied by this Respondent and the Petitioner be put to strict proof for the same.
Without prejudice to whatever is stated hereinabove and without prejudice to any other right of
this Respondent, the Respondent submits as follows:
(11) The Respondent states that from the time of the marriage the Petitioner criticised this Respondent for
some reason or the other. The Petitioner is a woman of very demanding nature. The Respondent states
that this Respondent made numerous purchases though they were not required, only to keep the Petitioner
happy. The Respondent states that Petitioner constantly compared the Respondent’s family with her
brother’s family, sometimes with the neighbours and even with the family of Respondent’s brother.
(12) The Respondent states that the constant cribbing nature of the Petitioner caused lot of anxiety and tension
in the house. The Respondent many a times tried to explain the Petitioners that such comparison is not
correct. The Respondent states that this Respondent is an Engineer and works as a Senior Manager in
__________ Company. The Petitioner’s brother is an estate agent. The Respondent states that, when any
new purchase used to be made at the place of the Petitioner’s brother, the Petitioner used to pressurise
this Respondent to buy the same. The Respondent states that if the Respondent refused, then the
Petitioner would abuse the Respondent and refuse to cook and perform her matrimonial responsibilities.
(13) The Respondent states that because of the Petitioner’s behaviour there was lot of tension in the house.
Even the daughters were scared to speak or play freely in the house. The Respondent states that because
of all the constant stress and tension created by the Petitioner, the health of the Respondent started
deteriorating. On ______ day again a heated argument took place between the Petitioner and the
Respondent. The Respondent started feeling uneasy and he phoned his friend who rushed him to the
hospital. The blood pressure of the Respondent had shot up because of the stress.
(14) The Respondent states that because of the medical condition of this Respondent the doctors advised the
Respondent to lessen the travelling and stress and therefore the Respondent told the Petitioner that they
should now look for flat close to the place of work of this Respondent. The Respondent states that
Respondent had also arranged admission to _____________ school for his daughters at _______. The
Respondent states that because of the constant quarrels between him and the Petitioner, the Respondent
lost all mental peace and his health was being affected. The Respondent states that in spite of the health
conditions of the Respondent, the Petitioner was very adamant and told the Respondent that she would not
stay with him at the new flat purchased at _________, nor the daughters would go there.
(15) The Respondent states that, therefore on ______ date the Respondent shifted to ___________ flat for
health reasons. The Respondent is a B.P. patient. The Respondent states that this Respondent meets the
daughters when they leave from school to go home as the Petitioner does not allow the Respondent to
meet their daughters. The Respondent states that on ___________ date the Respondent met with a minor
accident. The Respondent’s friend Miss ____ stays close to the residence of this Respondent and
therefore as a good friend, colleague and neighbour she was taking care of this Respondent. The
Respondent states that the Petitioner’s allegations in this regard are not only false but highly objectionable.
Page 21 of 21
(16) The Respondent states that the Petitioner has leveled all false and fabricated allegations against the
Respondent.
(17) The Respondent therefore most humbly prays as follow:—
(a) Dismiss the petition for divorce.
Place________
Verification
mentioned date.
Respondent
3 Sureshta Devi v Om Prakash, AIR 1992 SC 1904.

4 Amardeep Singh v Harveen Kaur, AIR 2017 SC 4417.
5 Praveen Mehta v Inderjit Mehta, (2002) 5 SCC 706, pp 716-717 (Para 21).
6 A Jayachandra v Aneel Kaur, (2005) 2 SCC 22.
End of Document
9.7 Maintenance
Dr Medha Kolhatkar
MATRIMONIAL LAWS
9.7 Maintenance
The Hindu Marriage Act, 1955 under section 25 provides for permanent maintenance and alimony. A similar
provision exists under other matrimonial statutes. However, it is only under the Hindu Marriage Act, 1955 that both
the wife and the husband can claim maintenance and alimony. The other statutes recognise only the right of the
wife to claim maintenance. In the case of Ramesh Chandra Rampratapji Daga v Rameshwari Ramesh Chandra
Daga,7 on the husband’s petition, a decree declaring the second marriage null and void had been granted. The
court held that the wife is entitled to maintenance after the court held that the marriage was a nullity as the
expression “at the time of passing of any decree” (section 25) encompasses all kinds of decrees including a decree
of nullity of marriage.
9.7.1 Criteria for Grant of Maintenance
Grant of maintenance is discretionary relief, and the discretion has to be exercised judiciously based on sound legal
principles and not capriciously or arbitrarily.
9.7.2 When Maintenance can be Granted
The applicant to succeed in his or her claim for maintenance has to establish before the court that he or she has no
independent income sufficient to maintain themselves. Income of the respondent, income of the claimant (if any),
position and status of the parties and number of persons the respondent is duty-bound to maintain, properties held
jointly and separately by the spouses both movable and immovable, is taken into consideration by the court while
granting maintenance.
9.7.3 Drafting of Maintenance Applications
(1) The application can be made for maintenance pendente lite, permanent alimony and maintenance.
(2) It is necessary to state the monthly incomes of the petitioner and the respondent. As far as possible the
petitioner should produce documentary evidence regarding the same.
(3) The application should also state the details of movable and immovable property owned by the petitioner
and the respondent, as the case may be.
(4) If maintenance is claimed for the children also born out of the wedlock, then their details such as the age,
education details, fees payable and other expenses etc. should be stated.
(5) Every application for maintenance has to be supported by an affidavit of the applicant.
(6) The applicant must give details of the claim and justification for the same.
(7) In the end, prayer to the court for granting the maintenance as claimed, should be stated.
9.7.4 Maintenance Pendente Lite
Pending the proceedings between the parties, the court can grant maintenance pendente lite.
Page 2 of 5
9.7 Maintenance
Section 24 of the Hindu Marriage Act, 1955 reads as under:
24. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be,
has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the
application of the wife or the husband, order the respondent to pay the petitioner the expenses of the proceeding and
monthly during the proceeding such sum as, having regard to the petitioner’s own income and income of the respondent, it
may seem to the court to be reasonable.
Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the
proceeding, shall as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the
husband, as the case may be.
9.7.5 Grant of Maintenance Pendite lite
Discretionary exercise of jurisdiction while granting alimony pendite lite should be judicious and cannot be arbitrary
nor capricious but should be guided on sound principles of matrimonial law and to be exercised within statutory
provisions having regard to the object of the Act.
Court would not be in position to judge merits of rival contentions when deciding applications for interim alimony
and should not allow its discretion to be fettered by nature of allegations made and should not examine merits of
case. Court must have regard to income of parties and is conditional on circumstance that wife or husband who
makes claim for same has no independent income sufficient to support him/her or to meet necessary expenses of
proceedings. Financial position of wife’s parents as well as education of wife, who could support herself, is
inconsequential.8
9.7.6 Interim Maintenance
In the case of L Yuvraj v Kirubaarani Devi, no reason was given by husband as to why he has not filed any of the
copies of Income Tax returns before the Lower Court to highlight his actual income. Adverse inference could be
drawn to limited extent that the husband did not want to disclose his real income, whereas, the respondent/wife
would come forward with the categorical statement that she is not working anywhere and earning. In such a case,
the burden of proof is on the petitioner to prove the place in which she is working and earning. In the absence of
such evidence, the Family Court considering the overall circumstance involved in the case felt that the husband,
i.e., the revision petitioner is capable of paying a sum of Rs. 5,000/- per month as interim maintenance towards the
respondent and the minor child and such a conclusion cannot be labelled or dubbed as unreasonable or illegal,
warranting interference by this Court.9
9.7.7 Grant of interim maintenance and expenses
It was held, granting of interim maintenance and expenses without recording a definite finding regarding the income
of husband was not proper, in the case of Pushpa v State of Uttar Pradesh.10
9.7.8 Specimen
Specimen
IN THE COURT OF FAMILY JUDGE, _____________
Place at ___________
Misc. Application No._______/20___
Petition under section 24 of the Hindu Marriage Act, 1955 for maintenance pendente lite
Page 3 of 5
9.7 Maintenance
This application on behalf of the Petitioner is as follows:—
(1) That the Petitioner has filed a petition for divorce against the Respondent on various grounds which is
pending before this Hon’ble court.
(2) That the Petitioner submits that she has two children (one son and one daughter). It is submitted that the
Respondent is duty-bound to maintain this Petitioner and the two children. Master _______ is ___ years
old and studying in _______ school and Miss ______ is ___ years old studying in _________school. Both
the children are living with this Petitioner.
(3) That the Petitioner submits that presently the Petitioner is not in job and thus has no means of livelihood
and therefore is unable to maintain herself and the two children. The Petitioner requires Rs.______ per
month to maintain herself and her two children according to their status in life.
(4) The Petitioner submits that the Respondent is working as project manager in a software company by name
___________ and is drawing a monthly salary of Rs. ______/-. The Petitioner has also produced the salary
statement of the Respondent along with this application.
(5) That the Petitioner submits that in view of the earnings of the Respondent he can very well afford to pay an
amount of Rs. ________ per month to the Petitioner.
(6) That the Respondent has no other financial liabilities or responsibilities.
(7) It is therefore most humbly prayed that the
(i) Respondent may please be directed to pay an amount of Rs. _______ per month as maintenance
pendente lite.
(ii) Award costs of this application to the Petitioner.
Affidavit in support is filed herewith.
Place________
9.7.9 Permanent Alimony and Maintenance
Section 25 of the Hindu Marriage Act, 1955 states the provision for permanent alimony and maintenance.
(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time
subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the
case may be, order that the respondent shall pay to the applicant for her or his maintenance and support
such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as,
having regard to the respondent’s own income and other property, if any, the income and other property of
the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to
be just, and any such payment may be secured if necessary, by a charge on the immovable property of the
respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has
made an order under sub-section (1), it may at the instance of either party vary, modify or rescind any such
order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under this section has
remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband,
that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other
party vary, modify or rescind any such order in such manner as the court may deem just.
The order passed by the court for permanent alimony can be modified if changes of circumstances are shown to the
court.
Page 4 of 5
9.7 Maintenance
In order to claim the relief of permanent alimony and maintenance, there must be a legal right based on legal
status. When status of woman as “wife” is not recognised by provisions of Act, which confers the right of permanent
alimony, she cannot be entertained for the grant of relief in the absence of recognition of her status by the Act.11
9.7.10 Specimen
Specimen No. I
IN THE COURT OF FAMILY JUDGE (Place)
AT ______ (PLACE)
Misc. Application No.______/ 20___
Application for permanent alimony and maintenance under Hindu Marriage Act, 1955
The Applicant above-named states most respectfully as under:—
(1) That the Hon’ble Court by its order dated _______ is pleased to grant decree of divorce in M.P. No.
______/ 20___ in favour of this applicant/ petitioner and against the respondent.
(2) The applicant submits that the applicant has spent Rs. ______ towards costs and other expenses
incidental to the divorce petition. For this purpose the petitioner/applicant has borrowed money from her
friends and now the same has to be repaid.
(3) It is humbly submitted that this applicant has left her job at the time of her marriage with the
opponent/respondent and therefore at present the petitioner is not having any independent source of
income sufficient to maintain herself.
(4) That the applicant/petitioner is staying with her old parents who do not have the required resources to
maintain her as both of them are retired and are facing old age health problems.
(5) That the applicant/petitioner submits that the opponent is working as General Manager in _______
company. His monthly income is Rs. ________. The opponent is also owner of building at _________
(Place), which is given on rent to various offices. The monthly income from rent is Rs. ______. Therefore,
after all deductions, taxes etc. the annual income of the opponent is Rs. ______/-.
(6) That the applicant/petitioner therefore submits that opponent can very well pay Rs. _______ as permanent
alimony payable every month to this applicant and also Rs. _______ towards the expenses incurred in
divorce proceedings.
(7) That the applicant submits that the applicant and the opponent live within the local jurisdiction of this
Hon’ble Court, so also the subject matter falls within the jurisdiction of this Hon’ble Court. Hence this
Hon’ble Court has jurisdiction to entertain and grant this application.
(8) The applicant submits that this applicant has not filed any other suit or legal proceedings in any other court
or before any other authority in connection with the present relief.
(a) the opposite party may please be directed to pay an amount of Rs. ________ as permanent alimony
every month.
(b) the opposite party may please be directed to pay an amount of Rs. _____ toward expenses incurred
due to the said divorce proceedings.
(c) pass such other or further order or orders as this Hon’ble Court may deem fit and proper in the facts
and circumstances of the case.

Page 5 of 5
9.7 Maintenance
Place________
Date ________ Applicant
Advocate for Applicant
7 Ramesh Chandra Rampratapji Daga v Rameshwari Ramesh Chandra Daga, AIR 2005 SC 422.
8 Manish Jain v Akansha Jain, AIR 2017 SC 1640.
9 L Yuvraj v Kirubaarani Devi, AIR 2009. MAD 138.
10 Pushpa v State of Uttar Pradesh, AIR 2005 All 187.
11 Bhausaheb v Leelabai, AIR 2004 Bom 283 : 2003 (4) Mh Lj 1019.
End of Document
10.1 Introduction
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER X DRAFTING OF PETITIONS UNDER LAW OF
SUCCESSION
CHAPTER X DRAFTING OF PETITIONS UNDER LAW OF SUCCESSION
10.1 Introduction
Indian Succession Act, 1925 deals with the provisions regarding succession to the property both in case of
testamentary and intestate succession. When the parties are not governed by their personal laws, then Indian
Succession Act is applicable.
In case of death of a person, the legal heirs or the executors or the successors in title are required to move certain
applications to the court in order to claim succession and to give effect to the intentions and desires of the
deceased person. Where a person dies intestate, then, to claim his shares, securities, etc., application for
succession certificate is required to be made and in case of testamentary succession, application for grant of
probate is required to be made as per the provisions of Indian Succession Act. Therefore, it is important to know the
relevant provisions under the Indian Succession Act and as to how to draft these applications.
End of Document
10.2 Application for Grant of Succession Certificate
Dr Medha Kolhatkar
SUCCESSION

Section 372 of the Indian Succession Act, 1925 lays down that an application for grant of succession certificate
should be made to the District Judge. Section 371 in the Indian Succession Act, 1925 states:
371. Court having jurisdiction to grant certificate.—The District Judge within whose jurisdiction the deceased ordinarily
resided at the time of his death, or, if at that time he had no fixed place of residence, the District Judge within whose
jurisdiction any part of the property of the deceased may be found, may grant a certificate under this Part.
Indian Succession Act, 1925 under section 370 has laid down certain restrictions on the grant of succession
certificate.
10.2.1 Restriction on Grant of Certificates
Section 370 states as under:—
370. Restriction on grant of certificates under this part—
(1) A succession certificate (hereinafter in this part referred to as a certificate) shall not be granted under this
part with respect to any debt or security to which a right is required by Section 212 or Section 213 to be
established by letters of administration or probate:
Provided that nothing contained in this section shall be deemed to prevent the grant of a certificate to
any person claiming to be entitled to the effects of a deceased Indian Christian, or to any part thereof,
with respect to any debt or security, by reason that a right thereto can be established by letters of
administration under this Act.
(2) For the purposes of this Part, ‘security’ means—

(a) any promissory note, debenture, stock or other security of the Central Government or of a State
Government;
(b) any bond, debenture, or annuity charged by Act of Parliament [of the United Kingdom] on the revenues
of India;
(c) any stock or debenture of, or share in a company or other incorporated institution;
(d) any debenture or other security for money issued by, or on behalf of, a local authority.
(e) Any other security, which the [State Government] may, by notification in the Official Gazette, declare to
be a security for the purposes of this part.
10.2.2 Contents of Application for Succession Certificate

Page 2 of 4
The contents of application for grant of succession certificate are governed by section 372 of the Indian Succession
Act, 1925.
372. Application for Certificate:—
(1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or
on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908 (V of 1908) of
1908 for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following
particulars, namely:
(a) the time of the death of the deceased;
(b) the ordinary residence of the deceased at the time of his death and such residence was not within the
local limits of the jurisdiction of the judge to whom the application is made, then the property of the
deceased within those limits;
(c) the family or other near relatives of the deceased and their respective residence;
(d) the right in which the petitioner claims;
(e) the absence of any impediment under section 370 or under any other provision of this Act or any other
enactment, to the grant of the certificate or to the validity thereof if it were granted; and
(f) the debts and securities in respect of which the certificate is applied for.
(2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not
believe to be true, that person shall be deemed to have committed an offence under section 198 of the
Indian Penal Code, 1860 (45 of 1860.)
(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor
or in respect of portions thereof.
On receiving the application, the court has to inquire into the contents of the application. If required the court can
also record the evidence to complete its investigation and only then the application would be granted or rejected.
10.2.3 Drafting of Succession Certificate
Stated below are the essentials for drafting a succession certificate—
(1) The first paragraph should give the details of the applicants, and how they are related to the deceased.
(2) The next paragraph should give the details of the deceased such as when and where the deceased died.
(3) The application should contain a declaration that the deceased has died intestate and hence, the need for
succession certificate.
(4) The next paragraph should give details of the near relatives of the deceased.
(5) The properties of the deceased for which the succession certificate application is made should be
described completely and correctly. (A separate schedule of properties can be annexed to the application).
(6) A declaration has to be made in the application that there is no impediment as stated under section 370 of
the Indian Succession Act.
(7) The applicant/applicants, in the next paragraph, should make a declaration that no other application is
made either for grant of succession certificate or for grant of probate regarding the estate of the deceased.
(8) The application should state as to how the court has jurisdiction to decide the application. For example, the
deceased resided at ______ at the time of death.
(9) Every such application should be duly signed and supported by an affidavit by the applicant.
(10) The prescribed fee, as per the Court Fees Act, should be paid at the time of filing application or at the time
of issuance of the succession certificate.
Page 3 of 4
(11) In the end comes the prayer clause wherein the applicant must seek relief for the grant of succession
certificate.
10.2.4 Specimen
Specimen
IN THE COURT OF ___________
AT_________ (place)_________
Misc. Appl. No._________/ 20__
An application for grant of succession certificate.
The applicant above named submits most respectfully as under:
(1) That the applicant No. 1 is the wife and the applicant No. 2 is the daughter of late Mr. ________, who died
on _______ date at _____ (place) in a car accident, hereinafter referred to as the said deceased.
(2) The applicants submit that the said deceased during his life time till his death was permanently residing at
_____ with the applicants.
(3) That the said deceased was working as _____ (Designation) _____ in (name of the office/company etc.).
That the said deceased has died intestate. It is submitted that due and diligent search has been made for a
Will but none has been found.
(4) The applicants state that the present applicants, i.e., the wife and daughter of the said deceased are the
only legal heirs and that there are no other heirs who can claim the property/estate of the deceased.
(5) That the applicants are the residents of the mentioned address and have been residing there for the last 10
years.
(6) That the applicants therefore require a succession certificate to claim the properties/securities mentioned in
the schedule herein below.
(7) The applicants submit that there is no impediment of whatsoever nature either under section 370 of the
Indian Succession Act or under any other enactment that may be applicable to grant the succession
certificate in favour of these applicants.
(8) The applicants submit that no other application has been made in any other court for the grant of
succession certificate for claiming the securities/properties belonging to the deceased. So also no
application has been made for grant of probate of will or for letters of administration with or without will and
pertaining to the properties of the deceased.
(9) The applicants submit that these applicants reside at ______ (place) and the said deceased was working
at ________ (place) so also the deceased died at ______ (place); therefore this Hon’ble Court has
jurisdiction to entertain, try and decide this application.
(10) That the appropriate Court fee is paid herewith.
(11) In view of the abovementioned facts and circumstances, these applicants most humbly pray as under:
(i) that a succession certificate may please be issued in respect of the properties/securities as detailed in
the schedule herein below
(ii) pass any other just and equitable order as deemed fit in the interest of justice.
Schedule of the Properties of the deceased late Mr. _________

Page 4 of 4
Amount Details
1]
2]
3]
4]
Place— Applicant No. 1
Date— Applicant No. 2
Advocate for Applicants
VERIFICATION
I, _____ Age _____ occupation _____ the applicant No.1 above named do hereby state and verify that the contents
of the above application and the schedule are true and correct to the best of my belief, information and knowledge.
The same is verified by me on this_____ day of 20_____at_____. (Place)
Signature of Applicant No.1
End of Document
10.3 Probate on the Basis of Will
Dr Medha Kolhatkar
SUCCESSION

Section 2(f) of the Indian Succession Act defines the word probate. According to section 2(f) “probate means the
copy of a will certified under the seal of a Court of a competent jurisdiction with a grant of administration to the
estate of the testator.”
10.3.1 Provisions Regarding Grant of Probate
Section 276. Petition for Probate
(1) Application for probate or for letters of administration, with the Will annexed, shall be made by a petition
distinctly written in English or in the language in ordinary use in proceedings before the Court in which the
application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or
statement of the contents thereof, annexed, and stating:
(a) the time of the testator’s death,
(b) that the writing annexed is his last Will and testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to the petitioner’s hands, and
(e) when the application is for probate, that the petitioner is the executor named in the Will.
(2) In addition to these particulars, the petition shall further state,—
(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed
place of abode, or had some property, situate within the jurisdiction of the Judge; and
(b) when the application is to a District delegate, that the deceased at the time of his death had a fixed
place of abode within the jurisdiction of such Delegate.
(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s
hands is situate in another State, the petition shall further state the amount of such assets in each State
and the District Judges within whose jurisdiction such assets are situate.
Grant of Probate operates as a judgement in rem: —
One must keep in mind that the grant of probate by a competent court operates as a judgement in rem and once
the probate of the Will is granted, then such probate is good not only in respect of the parties to the proceedings,
but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the
purpose of limitation under Article 137 of the Limitation Act, 1963 in proceedings for revocation of probate.1
10.3.2 Contents of the Petition for Grant of Probate
(1) In the 1st para, who the petitioners are and how they are related to the deceased is stated.
(2) The details of the Will, that it is the last testament, date of death of the testator, are to be stated.
Page 2 of 4
(3) In the next para, details are given as to the value of the assets that the Petitioners would be entitled to,
under the Will, for which the petitioner/petitioners are seeking probate.
(4) Details of the properties should be stated.
(5) The next paragraph should give details as to how the present court has jurisdiction.
(6) A declaration that no other application is presented by the Petitioners in any other court for grant of probate
should be made in the application.
(7) Finally the prayer, for grant of probate of the Will dated _____ executed by ________ should be made in
the petition.
10.3.3 Specimen
Specimen No. I
IN THE COURT OF ________ AT __________
Misc. Appl. No.______
Application for grant of probate
The petitioners above named state most respectfully as under:—
(1) The petitioners submit that these petitioners are the beneficiaries, executors and sons of the deceased late
Shri _________ hereinafter referred to as the said deceased.
(2) That the petitioners submit that late Shri_______ died on _______ date at ______ (place). The said
deceased had executed a Will dated ______ in the presence of the witnesses named in the said Will.
(3) That the petitioners are the executors named in the said Will.
(4) The Will dated ______ produced along with this application is the last Will of the deceased and the same
has not been revoked at any time by the said deceased.
(5) That the petitioners submit that the amount of assets which are likely to come to the hands of these
petitioners are to the tune of Rs. _______. The details of immovable property are given in Schedule I and
details of movable property are given in Schedule II.
(6) The petitioners submit that the deceased was permanently residing at ______ (place) and the properties
mentioned in the Will are also situate at _______ (place) therefore this Hon’ble Court has jurisdiction to
grant the probate application.
(7) The petitioners submit that these petitioners are the only beneficiaries under the Will and there are no rival
claims from any person pertaining to the said Will.
(8) That the petitioners have not made any application before any other court for grant of probate/letter of
administration to the estate of late Shri_________.
(9) That the necessary court fee stamp is paid herewith.
(10) The petitioners submit that all the documents annexed herewith such as the Will of the deceased, death
certificate of the deceased etc. be read as part and parcel of this application.
(11) It is therefore most humbly prayed
(a) That probate may please be granted of the Will annexed herewith.
(b) Pass such other orders as deemed fit in the interest of justice.
Schedule I
Page 3 of 4
Description of Immovable Property
Its Market value Rs. ______
Schedule II
Description of movable properties
Market Value Rs. ________
Place— Petitioner No. 1
Date— Petitioner No. 2
Advocate for Petitioner
VERIFICATION
I, _____ Age _____ occupation ____ the petitioner No. 1 above named do hereby state and verify that the contents
of the above petition and the schedules are true and correct to the best of my belief, information and knowledge..
The same is verified by me on this___ day of 20 _____ at _____. (Place)
Signature of Petitioner No.1
10.3.4 Section 237 of Indian Succession Act
Probate of copy or draft of lost Will.—
When a Will has been lost or mislaid since the testator’s death, or has been destroyed by wrong or accident and not
by any act of the testator, and a copy or the draft of the Will has been preserved, probate may be granted of such
copy or draft, limited until the original or a properly authenticated copy of it is produced.
Specimen No. II
IN THE COURT OF ________ AT __________
Misc. Appl. No.______
Application for grant of probate of a lost Will
The petitioners above named state most respectfully as under:—
(1) That the Petitioner No. 1 is the son and the Petitioner No. 2 is the daughter of the deceased late Smt.
__________ who died on _______ date at ______ (place). The death certificate is annexed herewith.
(2) That the petitioners submit that late Smt. ________ had executed a Will dated _____ to be her only and
last Will with regard to her estate.
(3) That the petitioners submit that these petitioners are the beneficiaries and executors appointed under the
Will of late Smt. _________ i.e. the mother of these petitioners.
(4) That the petitioners submit that as per the Will they already have partitioned/divided/distributed the
immovable and movable properties between them.
(5) That the petitioners submit that Petitioner No. 1 was in possession of the Will and the true copy of the
same was in the possession of Petitioner No. 2. However, due to short circuit on _____ date fire broke out
Page 4 of 4
in the house of Petitioner No. 1, the original Will was destroyed by fire. However, the true copy of the Will is
safe.
(6) That the petitioners are already amicably and peacefully enjoying the share of the properties bequeathed
to them by the Will dated _____. That there are no cross claims of these petitioners or of any other person
regarding the execution of the Will dated _____.
(7) That the petitioners submit that the market value of the immovable property is Rs. _____ and by the Will
each one of them has acquired ½ (half) share in the same. (The details of immovable property are
mentioned herein below in Schedule I). That the market value of other assets such as jewellery, shares,
securities etc. is Rs. ______ (approx). (The details of which are given in Schedule II herein below.)
(8) That the petitioners submit that as the original Will is destroyed due to fire, the petitioners humbly request
the Hon’ble Court to grant probate on the basis of the true copy of the Will dated ______ of late Smt.
______.
(9) That the petitioners submit that these petitioners have not moved any application/proceedings before any
other court for the grant of letter of administration/probate.
(10) That the court fee stamp as payable based on the market value of the properties bequeathed in the Will, is
paid herewith.
(11) The petitioners submit that the deceased/the testatrix had a permanent place of abode at ______ (place)
and the property is situate at ______ (place) therefore this Hon’ble Court has jurisdiction to try and decide
this petition of these petitioners.
(12) It is therefore most respectfully prayed,
(i) That probate of Will executed by late Smt. _______ dated ____ be granted.
(ii) Pass any other just and equitable order as deemed fit in the interest of justice.
Schedule (I) of the Property
Schedule (II) of the Property
Place—
Date—
Petitioner No. 1
Petitioner No. 2
VERIFICATION
I, ____ Age ____ occupation ____ the petitioner No.1 above named do hereby state and verify that the contents of
the above petition and the schedules are true and correct to the best of my belief, information and knowledge. The
same is verified by me on this ____ day of 20 ____ at ____. (Place)
Signature of Petitioner No.1
1 Lynette Fernandes v Gertie Mathias, AIR 2017 SC 5453 : (2018) 1 SCC 271.
End of Document
11.1 Introduction
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER XI WRIT PETITIONS
CHAPTER XI WRIT PETITIONS
11.1 Introduction
Writ means “a written command, precept or formal order, issued by a court, directing or enjoining the person or
persons to whom it is addressed to do or refrain from doing some act specified therein.”—Oxford English Dictionary.
The Constitution of India under Articles 32 and 226 lays down the provisions for issuance of writs. Article 32 of the
Constitution provides the remedies for enforcement of fundamental rights only by the Supreme Court, and Article
226 of the Constitution of India confers powers on the High Court to issue writs for enforcement of Fundamental
Rights as well as other rights.
End of Document
11.2 Categories of Writs
Dr Medha Kolhatkar

Following are the various forms of writs, namely:
(1) Writ of Habeas Corpus

(2) Writ of Mandamus
(3) Writ of Prohibition
(4) Writ of Quo Warranto
(5) Writ of Certiorari
11.2.1 Habeas Corpus
Writ of Habeas Corpus means a judicial order issued by the Supreme Court or a High Court by which a person who
is confined by public, private or governmental agency may secure his release. It is in the form of an order calling
upon the person confining him, to let the court know the legal justification for such detention, or to release him.
The writ of habeas corpus is available in every case of unlawful detention. Where the detention is by a private
person, then the remedy is available only in the High Court. A person cannot be deprived of his liberty except by
procedure established by law (Article 21).
A writ of habeas corpus is primarily designed to give a person in restraint of his liberty, a speedy and effective
remedy for having the legality of his detention enquired into, determined and if the detention is found to be unlawful,
get him discharged and freed from such restraint. The Supreme Court has issued this writ even based on a
postcard sent by a prisoner.
While applying the principle of Res Judicata to a habeas corpus proceeding, the court will look at the previous
decision only in regard to the pleas actually raised and decided; the principle of constructive Res judicata does not
apply.1
The writ of habeas corpus provides a prompt and effective remedy against illegal detention. By this writ, the court
directs the person to bring the body of the prisoner before the court so as to enable the court to decide the validity,
jurisdiction or justification for such detention. The principal aim of the writ is to ensure swift judicial review of alleged
unlawful detention on liberty or freedom of the prisoner or the detenu.2
In habeas corpus proceedings, the court is to have regard to the legality or otherwise of the detention at the time of
the return and not with reference to the institution of the proceedings. A fortiorari the court would not be concerned
with a date prior to the initiation of proceedings for a writ of habeas corpus.3
11.2.2 Writ of Mandamus
The writ of mandamus is derived from the Latin word which means we command. It is a command being issued
from a court of competent jurisdiction in the name of a state or officer, corporation or person requiring the
performance of a particular duty.
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It is a high prerogative writ of the most extensive remedial nature. Its purpose is to remove the defects of justice. It
is issued so that justice may be done in all cases where there is a specific legal right and no specific legal remedy.
The form of order of mandamus is usually a command directing the Respondent to act according to law or to refrain
from acting contrary to law.
Writ of mandamus lies to enforce a public duty in the performance of which the petitioner has a sufficient legal
interest, but he must show that he has demanded performance which has been refused.
The writ of mandamus might under certain circumstances lie against a private individual if it is established that he
has colluded with a public authority.4
Mandamus does not lie to enforce a contract inter parties, but it will lie where the petitioner’s contractual right with a
third party is interfered with by the state.5
It is a settled legal position that pure question of law can be raised at any time of the proceedings but a question of
fact which requires investigation and inquiry, and for which no factual foundation has been laid by a party before the
court or tribunal below, cannot be allowed to be agitated in the writ petition. If the writ court for some compelling
circumstances desires to entertain a new factual plea, the court must give due opportunity to the opposite party to
controvert the same and adduce the evidence to substantiate its pleadings.6
11.2.3 Writ of Prohibition
Writ of prohibition is issued to ensure that judicial tribunals and courts act within the limits of jurisdiction. A writ of
prohibition is a writ by which the Supreme Court under Article 32, or the High Court under Article 226 issues an
order directing an inferior court or tribunal forbidding it from continuing with a proceeding therein on the ground that
the proceeding is without or in excess of jurisdiction or contrary to law of the land, statutory or otherwise.7
The writ of prohibition is preventive rather than corrective remedy, and it issues only to prevent the commission of a
future act and not to undo an act already performed. When, therefore, the proceedings which it is sought to prohibit
have already been disposed of by the court, and nothing remains to be done either by the court or by the parties,
the cause having been absolutely dismissed by the inferior tribunal prohibition will not lie.8
11.2.4 Writ of Quo Warranto
The object of the writ of quo warranto is to prevent a person who has wrongfully usurped an office from continuing
in that office. The writ calls upon the holder of the office to show to the court, under what authority he holds the
office. If the court decides that he is holding the office in question illegally, it passes the order of ouster.
Before a citizen can claim writ of quo warranto, he must satisfy the court that the office in question is a public office
and it is held by an usurper without legal authority.
It is trite law that the writ of quo warranto may be refused where it is an outcome of malice or ill will. It is also trite
law that only a person who comes to the court with bona fides and public interest can have locus.
The doctrine of delay and laches are not applied if the writ of quo warranto has been prayed and the writ of quo
warranto may be prayed if any person is holding an independent substantive public office without having any legal
authority to that effect. In other words, the constitutional courts are to see that a public office is not held by usurper
without any legal authority.9
The Supreme Court in the case of Central Electricity Supply Utility of Odisha observed that “The jurisdiction of the
High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the
public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the
concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality
or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits
of quo warranto which is impermissible.
11.2.5 Writ of Certiorari
A writ of certiorari may be issued by a superior court requiring that the record of the proceedings in some cause or
Page 3 of 3
matter pending before an inferior court should be transferred to the superior court in order to be dealt with by the
superior court. It is issued in a case where there is an error of law, or in a case where the principles of natural
justice are violated.
The object of certiorari is to secure by the exercise of the authority of the superior court that the jurisdiction of the
inferior court should be properly exercised. No writ of certiorari can lie against legislature. The reasons for issuance
of writ of certiorari are for correcting the errors of jurisdiction committed by the inferior court or tribunal when it has
acted:
(i) Without jurisdiction, or

(ii) In excess of its jurisdiction, or
(iii) In flagrant disregard of law or rules of procedure.10
A writ of certiorari or a writ in the nature of certiorari can’t be issued for declaring an act or an ordinance as
unconstitutional or void. A writ of certiorari or a writ in the nature of certiorari can only be issued by the Supreme
Court under Article 32 of the Constitution and by the high court under Article 226 of the Constitution to direct inferior
courts, tribunals or authorities to transmit to the court the record of proceedings pending therein for scrutiny and if
necessary for quashing the same.11
A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these
are cases where orders passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of
failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the
court of tribunal acts illegally or improperly; as for instance, it decides a question without giving an opportunity to be
heard to the party affected by the order or where the procedure adopted in dealing with the dispute is opposed to
principles of natural justice.12
Certiorari may be and is generally granted when a court has acted without or in excess of its jurisdiction. When the
jurisdiction of the court depends upon the existence of some collateral fact, it is well settled that the court cannot by
a wrong decision of the fact give its jurisdiction which it would not otherwise possess.13
It is well established that the writ of certiorari will not be granted in a case where there is negligence or omission on
the part of applicant to assert his right as taken in conjunction with the lapse of time and other circumstances,
causes prejudice to the adverse party.14
1 Lalu Bhai J Patel v UOI, AIR 1981 SC 728.

2 State of Maharashtra v Bhaurao Punjabrao Gawande, decided on 3 March 2008.
3 B Ramachandra Rao (Col. Dr.) v State of Orissa, AIR 1971 SC 2197 : (1972) 3 SCC 256 : 1971 III UJ 767 SC.
4 Praga Tools Corp v CV Imanual, AIR 1969 SC 1306 : 1969 SCR (3) 773.
5 Calcutta Gas Co v State of West Bengal, AIR 1962 SC 1044, 1047 : 1962 SCR Supl. (3) 1.
6 Greater Mohali Area Development Authority v Manju Jain, AIR 2010 SC 3817.
7 Mackonochie v Lord Penzance, (1881) 6 AC 424 .
8 Janes L. High, A Treatise on Extraordinary Legal Remedies, 3rd Edn, 1896, p 710.
9 Kundan Singh v State of UP through Prin. Secy. decided on 16 August 2019 by Allahabad H.C.
10 Surya Devi Rai v Ram Chander Rai, AIR 2003 SC 3044.
11 Prabodh Verma v State of Uttar Pradesh, 1985 AIR 167 : 1985 SCR (1) 216.
12 Syed Yakoob v KS Radhakrishnan, AIR 1964 SC 477 : 1964 SCR (5) 64.
13 TC Basappa v T Nagappa, AIR 1954 SC440 : 1955 SCR 250.
14 Udit Narayan Singh v Additional Member, Board of Revenue, AIR 1963 SC786 : 1963 SCR Supl. (1) 676.
End of Document
11.3 Specimen
Dr Medha Kolhatkar
11.3 Specimen
Specimen No. I
WRIT OF HABEAS COPRUS
IN THE HIGH COURT OF JUDICATURE AT _____________
Writ Petition No. ____/20____
Under Article 226 of Constitution of India
Mr. A
Age: ____________
Occupation: __________
R/at:
Through Smt ___________
Age:__________
Occupation:__________
R/at: ____________
As next friend
Petitioner
V/s
State of __________________
District Magistrate (Place)
Superintendent Dist Jail ________________
Respondents
To
The Hon’ble Chief Justice and his Companion judges of the High Court of Judicature, _____________
Page 2 of 12
11.3 Specimen
This Humble petition of the Petitioner above named most respectfully showeth praying for a writ of Habeas Corpus
or such other direction.
(1) That the Petitioner is a respectable and law abiding citizen of India and was arrested by _____________
Sub Inspector of ___________ Police station at ______________.
(2) That on __________ date the police authorities produced this Petitioner before the judicial magistrate at
__________ (place) without complete and relevant papers. The police authorities did not produce FIR,
Case Diary or extract of other relevant entries etc.
(3) That in spite of such serious lapses on the part of the police authorities to submit all the relevant
documents and details pertaining to the arrest of this Petitioner, the Judicial Magistrate First Class Court,
without calling for the relevant papers and details and without any enquiry regarding the same and without
any judicial application of the mind, the Hon’ble Magistrate mechanically passed an order remanding the
Petitioner to Police custody for a period of 7 days.
(4) That thereafter, the Petitioner was again produced before the said magistrate on ____________ date by
the Police and false allegations were made orally against the Petitioner by the Police authorities. On this
date as well the Police authorities failed and neglected to produce the case diary before the Hon’ble
Magistrate and once again the Magistrate passed an order without application of mind thereby remanding
the Petitioner to judicial custody for a period of 14 days.
(5) The Petitioner states that, the Petitioner should have been produced before the Magistrate on
___________ date as per the order passed below Exhibit ___________ by the Judicial Magistrate.
However, the Petitioner has not been produced at all before the Magistrate even after the expiry of the
Order of the Judicial Custody and the said detention is in direct violation of his fundamental rights and
therefore the Petitioner has approached this Hon’ble Court for a writ of Habeas Corpus or other appropriate
writ, order or direction directing the Respondents to release the Petitioner inter alia on the following
grounds:
(a) The orders passed by the Magistrate on _________ date remanding the Petitioner to Police custody in
the absence of any relevant papers and documents is not legal and valid and the same is not in
accordance with the provision of section 167 of Criminal Procedure Code.
(b) The Order dated ________ remanding the Petitioner to the Judicial Custody without any just and legal
grounds is again not in accordance with law.
(c) The failure to produce the Petitioner before the Magistrate on __________ date, i.e., when the judicial
custody ended has deprived the Petitioner of his fundamental right enshrined under Article 21 of the
Constitution of India, i.e., the fundamental right to Liberty. Thus the said detention of this Petitioner is
absolutely illegal.
(6) That the said Petitioner namely Mr. ___________is unable to present a petition for a writ of Habeas
Corpus personally and thus the petition is presented through next friend Mrs. ____________ i.e. the wife of
the Petitioner.
(7) It is therefore prayed that
(a) A writ of Habeas Corpus be issued against the Respondents for production of the Petitioner in the
Hon’ble Court.
(b) The detenue be set at liberty forthwith.
(c) Direct that the Petitioner be awarded costs of this petition.
(d) To pass such other and further orders and grant such other and further reliefs as Hon’ble Court may
deem just, fit and proper in the circumstances of the case. And for this act of kindness your Lordship’s
Petitioner, as in duty bound shall pray.
An affidavit in support of the Petition is filed herewith.
Next friend of Petitioner
Adv for the Petitioner

Page 3 of 12
11.3 Specimen
Date _______
Place _______
Specimen No. II
WRIT OF MANDAMUS
IN THE HIGH COURT OF JUDICATURE ______ AT _______
WRIT PETITION NO. _____ 20_______
District- ____________
Mr. _____
Age:______
Occupation:
R/at: ____________
Mr. _____
Age:______
Occupation:
R/at: ____________
Petitioners
Vs.
_________Municipal Corporation
Through __________
Mr. _____
Age:______
Occupation:
R/at: ____________
Respondent
To,
The Hon’ble Chief Justice and other Puisne Judges of the Hon’ble High Court of Judicature, _________
The Petitioners most respectfully showeth as under:
(1) The Petitioners state that, Petitioners are residents of _______ city, residing within the limits of
___________ Municipal Corporation and are taxpayers of ______ Municipal Corporation and are citizens
of India. Petitioners have filed the present writ petition for and on behalf of all persons who are residing in
___________city and on behalf of the villagers of the villages proposed to be included within the limits of
_____Municipal Corporation.
Page 4 of 12
11.3 Specimen
(2) The Petitioners submit that, the Urban Development Authority issued notification No. __________ under
the _____________ Municipal Corporation Act. By the said Notification dated _________, the Urban
Development Authority is intending to increase the limits of ________Municipal Corporation. The said
notification is enclosed with the memo of this petition and is marked as Exhibit A __________.
(3) The Petitioners submit that, the Petitioners have serious objections to the said notification. The Petitioners
therefore, made several representations to ________ Municipal Corporation orally as well as in writing,
calling upon the ____ Municipal Corporation to hear out their objections to the same. The Petitioners also
raised objections and expressed their opinions through various newspaper articles and at various public
meetings. However, the Petitioners felt that the ________ Municipal Corporation is not paying any heed to
the requests and the representations made by the Petitioners to hear their objections and therefore the
Petitioners were left with no alternative but to approach this Hon’ble High Court under Article 226 of the
Constitution of India and object to the same inter alia on the following grounds:
(A) By including ___ villages within the limits of ____ Municipal Corporation, greater burden will be created
on the limited resources of the ____ Municipal Corporation, and all this will adversely affect the rights
of the residents of ___ and the quality of Civic amenities and facilities provided to them by ____
Municipal Corporation.
(B) Based on the geographical area covered by those ___ villages and the fact that the population of those
__ villages is 5 to 6 lakhs approximately as per the census carried out in the year 20____, it is
necessary and it will be in the interest of all that a separate Municipal Council or a Municipal
Corporation should be constituted. As per the provisions of the ___ Municipal Corporation Act also, a
separate Nagar Panchayat or municipal council or municipal corporation should be constituted for
population exceeding ____.
(C) The Petitioners state that, the population of these ___ villages is more than ______ lakhs and hence
as per the ______Municipality Act a new Municipal Corporation can be constituted. Constitution of a
separate municipal corporation will be in the interest of both, the residents of ___city and the residents
of ______ villages, and with this the ____ Municipal Corporation will not get further overburdened. By
creation of a separate Municipal Body for the ______villages, the interest of residents of these villages
would be protected as they would get better civic amenities and facilities.
(D) If as per Section ____ of the______Municipal Corporations Act____, a new municipal body will be
constituted, then it can cater to the civic needs and amenities of the residents in a better and effective
way rather than adding discomfort and inconvenience to the people residing presently within the limits
of ______ Municipal Corporation.
(E) Presently ____ Municipal Corporation has ____ TM of water to supply to the residents of ___ Municipal
Corporation. In spite of this, the people residing in ___ Municipal Corporation limits are constantly
facing water shortage problems. To any construction project ___ Municipal Corporation sanctions the
project subject to the builder providing the water supply, this being the current status, how can ____
Municipal Corporation cater to the water requirements of the residents of ____ villages proposed to be
included into the ____ Municipal Corporation. It is submitted that the ____ Municipal Corporation has
no provision to meet the additional demand of water supply to the proposed villagers.
(F) The Petitioners are already facing water scarcity problems. The inclusion of the proposed villages will
only add to the current problems faced by the residents.
(G) The waste/garbage disposal is yet another issue. The place where the ___ Corporation is dumping the
garbage is at _____. The residents of this region are already facing a lot of health hazards and
discomfort. The waste catching fire in the summer due to excess heat is a common feature.
Approximately ____ tons of garbage is daily dumped here and ___ tons is processed and the rest is
kept dumped due to lack of systems for processing. The ground water is completely polluted and has
become black in colour. The dumping of garbage has created serious environmental issues and the
residents of ____ find it difficult to stay there. On this background, if the proposed villages are included
in the _____ Municipal Corporation there will be an increase in the garbage/waste. The Corporation will
probably dump the additional garbage there, which will raise serious health and environmental issues.
(H) The ____ Municipal Corporation already has a huge area to look after, having an annual budget of Rs.
____ Crores every year. Therefore, by expanding the area, it is felt that ____ Corporation will be
overburdened and will not be in a position to administer the proposed area in an effective way, and the
needs of the residents will not get addressed and attended. Therefore, a separate municipal body
Page 5 of 12
11.3 Specimen
needs to be constituted for these villages and the existing municipal body should not be allowed to
include these villages within its limits.
(I) Presently ____ Municipal Corporation is unable to address some long pending issues such as metro
project, construction of flyovers, maintenance and repair of roads, providing drainage facilities and
water supply. Thus, the ____ Municipal Corporation should not be overburdened with any new areas.
(J) Many giant reputed builders/promoters have already acquired hundreds of acres of lands in these
villages with the idea that they can float township schemes once these villages are included in the ___
Corporation. If the builder’s lobby acting hand in glove with the ___ Municipal Corporation succeeds in
their design to bring these proposed villages within the Corporation limits, then serious environmental,
health and other problems will be faced by the residents of the proposed villages as well as the present
residents of the ___ Municipal Corporation.
(K) Farming and agriculture will take a back seat if the said impugned notification is given effect. It will
result in depriving the farmers of their right to livelihood which in turn will increase the price of food
grains and vegetables and thus residents of ____ will suffer.
(L) The residents of all villages in the impugned notification have unanimously objected to the said
impugned notification and have submitted their statement of objection to the Urban Development
Authority. Thus, neither the residents of the villages nor the residents of ___ city want the said
notification to take effect.
(M) ____ Municipal Corporation has no action plan/study/ survey done as to how it is going to address the
questions of basic civic needs of the residents of the proposed villages, without adversely affecting the
rights of the residents of ____city. Water, electricity supply, drainage, roads, waste management, are
the basic requirements, and the ____ Municipal Corporation has neither consulted the experts in this
field nor done any feasibility – study to provide these facilities to the residents of these proposed
villages.
(N) If the said impugned notification is given effect, then the villagers/residents of the proposed villages will
be deprived of their basic rights such as livelihood, right to environment, right to basic civic amenities
etc. and the residents of ____ will be deprived of their basic needs.
(O) The Petitioners state that, the Petitioners have published articles in the ____ newspaper dated ____
and have made representations opposing the impugned order. The said articles and representations
are enclosed as Exhibit _____.
(P) The objects of Part 9A of the Constitution of India aim at decentralisation of power. The impugned
notification is in contravention of Part 9A of the Constitution of India. The principles of town planning
support the idea of decentralisation of power. Decentralisation of power is needed for better co-
ordination. For the effective participation and involvement of the residents of these villages a separate
Municipal Body should be constituted.
(Q) The Petitioners most humbly urge that the Respondents should not take decisions for political gains
nor to support the builder’s lobby, but in the public interest, and the present notification does not serve
any public interest and thus the same needs to be set aside.
(4) The Petitioners submit that, proper court fee stamp is paid.
(5) The cause of action has arisen in the district of ____, viz. within the extra territorial jurisdiction of this
Hon’ble Court. Hence this Hon’ble Court has jurisdiction to entertain, try and decide this petition.
(6) That the Petitioners have no other remedy which is efficacious and expeditious in this behalf.
(7) The Petitioners have not preferred any other writ petition, appeal, or application either in this Hon’ble Court
or any other court or in the Hon’ble Supreme Court of India in respect of this cause of action.
(8) The impugned notification is dated ____. The Petitioners thereafter consulted their advocate taking into
consideration the time required for this. The Petitioners are approaching this Hon’ble Court without any
laches or negligence on their part. Hence this petition is filed within the period of limitation.
(9) The Petitioners have not received any notice regarding any caveat application in respect of the impugned
notification.
(10) The Petitioners therefore most respectfully pray:
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11.3 Specimen
(a) That this Hon’ble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or
any other appropriate writ direction or order under Article 226 of the Constitution of India 1950,
quashing and setting aside the notification No. _____ issued by the Respondent dated ____________.
(b) That ad interim reliefs in terms of prayer clause ‘a’ hereinabove may kindly be granted.
(c) That this Hon’ble Court be pleased to give necessary directions to Respondent to take steps to
constitute a separate municipal body of these proposed villages.
(d) That this petition be allowed with costs.
(e) That any other just and equitable order in the interest of justice may kindly be passed.
An affidavit in support of the Petition is filed herewith.
Petitioners
Advocate for Petitioners
Date _____
Place _____
Specimen No. III
WRIT OF PROHIBITION AND OTHER DIRECTION OR ORDER
Mr. A
Age: ____________
R/at:
Through Smt. ___________
Age:__________
R/at: ____________
As next friend
Petitioner
Vs.
(1) Judicial Magistrate First Class at ___________ and

(2) Another
Respondents
To
Page 7 of 12
11.3 Specimen
The Hon’ble Chief Justice and his Companion judges of the High Court of Judicature, _____________
This Humble petition of the Petitioner above named most respectfully showeth praying for a writ of prohibition or
such other.
The Petitioner above named states respectfully as under:
(1) The Petitioner states that, the Petitioner is the Chairman of __________ education Society and is also a
director of ____________ Company Pvt. Ltd. and is a respectable and well known person in the society.
So also the Petitioner has been bestowed with many awards and citations for his valuable contribution in
various fields and has no criminal record whatsoever.
(2) The Petitioner submits that, a criminal case was filed in the court of judicial magistrate first class at ____
bearing CC No. __________ of 20___________ against only two persons namely Mr. _______ and Mr.
__________. However, without any reason or rhyme this petitioner was implicated in the case as accused
No. 3 on ________date.
(3) The Petitioner states that, the implication of this Petitioner as accused in the aforesaid Criminal case is
illegal and is actuated by some bias and prejudice.
(4) The Petitioner states that, in the FIR also his name was never mentioned. This petitioner has been added
as a party, i.e., as accused No. 3 in a very haphazard and hasty manner. The said criminal case is pending
before the First Respondent. It is submitted that the first Respondent, i.e., Hon’ble JMFC at _______ is
proceeding with the hearing of the case hurriedly. The Hon’ble JMFC has failed to consider the contentions
raised by this Petitioner and has not deleted the name of this Petitioner as an accused in the criminal case
No. _____/20____.
(5) The Petitioner states that, inclusion of the Petitioner as accused No. 3 in the said criminal case is
absolutely illegal, unconstitutional and therefore the said proceeding against this Petitioner needs to be
quashed at once.
(6) The petitioner being aggrieved by the said act of the Hon’ble JMFC has no alternative but to seek
interference of this Hon’ble Court and hence the present petition challenging the Order implicating this
Petitioner as accused No. 3 inter alia on the following grounds:
Grounds
(a) That adding the Petitioner in Criminal Case No. ___________of __________ as accused No. 3 is
illegal, invalid, unconstitutional.
(b) That the first Respondent ought to have considered the fact that the name of this accused is not
included either in the FIR or other relevant case papers and that there exists no valid ground to include
this Petitioner as accused No. 3 in the said proceedings.
(c) The Petitioner’s implication in the said case has tarnished his image, standing and reputation. Thus he
has been deprived his right to live with dignity within the meaning of Article 21 of the Constitution of
India.
(d) The Petitioner has been included in the criminal case at a later stage of the proceedings and the said
action of the Respondent No. 1 is actuated by bias and prejudice and this Petitioner has no connection
with the alleged land dealings complained of in the said criminal case. Thus this Petitioner has no
connection with the said criminal case and he has been included only with the intention to tarnish his
reputation in the eyes of the right thinking members of the society.
(e) The Petitioner states that, the Respondent No. 1 has no jurisdiction to conduct the trial against this
Petitioner and therefore the Respondent must be prohibited from proceeding against this Petitioner in
view of the aforestated facts.
(7) The Petitioner states that, this Petitioner has no other effective alternative remedy except to invoke the
jurisdiction of this Hon’ble Court under Article 226 of the Constitution.
(8) The Petitioner states that this Petitioner has not filed any other writ or proceedings either before this
Hon’ble court or before any other court pertaining to the said order.
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11.3 Specimen
(9) It is therefore most humbly prayed that:

(i) The Hon’ble Court may be pleased to issue a writ, order or direction and particularly a writ in the nature
of prohibition, prohibiting the Respondents herein from proceeding against this Petitioner in criminal
case no. ____ of ____ pending before Hon’ble Respondent No. 1.
(ii) That all proceedings initiated against this Petitioner be declared as illegal, unconstitutional, arbitrary
and contrary to the principles of criminal law and practice.
(iii) Pass such other orders as deemed fit and proper in the facts and circumstances of this Petition.
An affidavit in support of the petition is filed herewith.
Petitioner
Adv for Petitioner
Date ______
Place ______
Specimen No. IV
WRIT OF QUO WARRANTO AND OTHER DIRECTION OR ORDER
Mr. A
Age: ____________
R/at:
Through Smt ___________
Age:__________
R/at: ____________
As next friend
Petitioner
Vs.
1. Mr. _____________
Age: ___________
Occupation: _______
Page 9 of 12
11.3 Specimen
R/at: ______________
2. Municipality (Place)
Respondents
To
The Hon’ble Chief Justice and his Companion judges of the High Court of Judicature _____________.
This Humble petition of the Petitioner above named most respectfully showeth praying for a writ of quo warranto or
such other.
(1) The Petitioner states that, the Petitioner is the resident of _____ place and works for the welfare of the
people residing in his city, i.e. ______.
(2) That the Petitioner states that, the Municipal Board of _______ is also aware of the standing and reputation
of this Petitioner. The Petitioner has conducted various camps, e.g., eye-check up camp, blood donation,
AIDS awareness programmes, etc.
(3) The Petitioner states that, the Respondent No. 1 was nominated by the Respondent No. 2, i.e., _______
Municipal Board as per the ________ provisions of the Municipalities Act. Such a nomination can be made
and as there was a vacancy in the Municipal Board of _______, the Municipal Board of _______
nominated the Respondent No. 1.
(4) The Petitioner submits that, the Municipal Board has acted mala fidely and contrary to the provisions of the
Municipality Act.
(5) The Petitioner submits that, according to section ______ of the Municipality Act, a person who has stood
as a candidate, at the previous general election and had not been elected could not be nominated to the
Municipal Board.
(6) The Petitioner states that, the Respondent No. 1 was a candidate at the previous general election, i.e., in
the year ______ but, was not elected in the said election.
(7) The Petitioner states that, in view of the specific provisions of the _______ Municipalities Act and the fact
that the Respondent No. 1 was not elected in the previous elections of the Municipality, i.e., in the year
_______, the nomination of the Respondent No. 1 is invalid and illegal.
(8) The Petitioner submits that, the Petitioner is a resident as stated above within the ________ municipality
and has a valid voter ID card in ward No. _______ of the said Municipality.
(a) A writ of quo warranto be issued thereby declaring that the nomination of Respondent No. 1 as a
member of _______ municipal board by the Respondent No. 2 is invalid and illegal and it may further
be declared that the Respondent No. 1 has no right to hold the office as a member of _______
Municipal Board.
(b) Direct that the Petitioner be awarded costs of this petition.
(c) To pass such other and further orders and grant such other and further reliefs as Hon’ble Court may
deem just, fit and proper in the circumstances of the case. And for this act of kindness your Lordship’s
Petitioner, as in duty bound shall pray.
Place________ Adv for Petitioner

Page 10 of 12
11.3 Specimen
Specimen No. V
WRIT OF CERTIORARI AND OTHER DIRECTION OR ORDER
IN THE HIGH COURT OF JUDICATURE AT ____________ (PLACE)
Mr. A
Age: ___________
R/at:
Through Smt. ___________
Age:__________
R/at: ____________
As next friend
Petitioner
Vs.
__________State Transport Corporation
Respondents
To
The Hon’ble Chief Justice and his Companion judges of the High Court of Judicature, _____________.
This Humble petition of the Petitioner above named most respectfully showeth praying for a writ of certiorari or such
other direction.
(1) The Petitioner submits that, the Petitioner was appointed by the Respondent ___________ State Road
Transport Corporation having its office at __________ (Place).
(2) The Petitioner submits that, the Petitioner was appointed as _______ and after tenure of 5 years in service
was promoted as ________. The Petitioner during his service tenure was discharging his duties honestly,
efficiently and sincerely.
(3) The Petitioner submits that, the Petitioner was charge sheeted on ________ date for keeping the urgent
and important work assigned to him incomplete, i.e., for negligence and misconduct.
(4) The Petitioner states that, a departmental enquiry was initiated and the enquiry officer found this petitioner
guilty of the charges. Thereafter, the Respondent authority through Mr. __________ (state the designation)
dismissed this petitioner from his services on ________ date.
(5) The Petitioner states that, the Petitioner being aggrieved and dissatisfied by the said order of dismissal
issued by the Respondent authority challenged the same before the labour court at ___________ (place).
Page 11 of 12
11.3 Specimen
However, to the further agony and shock of this petitioner, the labour court vide its order dated ________
approved the dismissal order passed by the Respondent authority.
(6) The Petitioner states that, the Hon’ble Labour Court has passed the impugned order dated _________
without appreciating the evidence on record, without adhering to the well established legal principles and
other norms and procedures.
(7) The Petitioner states that, the impugned order by the Hon’ble Labour Court dated ____________ is passed
without following the principles of natural justice and the said order is illegal and arbitrary.
(8) The Petitioner states that, this petitioner is the only earning member in the family and has the responsibility
on his shoulders not only of his wife and growing children but also of his old and ailing parents.
(9) The petitioner therefore, has filed the present writ petition challenging the legality and validity of the
impugned order dated __________ passed by the Hon’ble Labour Court inter alia on the following grounds:
Grounds
(a) The impugned order passed by the Hon’ble Labour Court at _________ place is illegal, arbitrary,
unconstitutional and contrary to the evidence on record.
(b) The learned Labour Court failed to follow the principles of natural justice and to follow the procedure
relating to service matters.
(c) The Hon’ble Labour Court grossly erred in concluding that the Petitioner was guilty of negligence and
misconduct.
(d) The learned Labour Court failed to appreciate the serious lapses in the so called departmental inquiry
conducted by the Respondent authorities.
(e) The learned Labour Court failed to consider the fact that the Petitioner was not given the relevant
papers, documents, etc. which were necessary to complete the assigned work to him.
(f) The learned Labour Court failed to take cognizance of the past record of the Petitioner and that the
dismissal order passed by the Respondent authorities is totally against the spirit and letter of ______
state Road Transport Corporation Regulations, rules, etc.
(10) The Petitioner states that, the Petitioner had no other effective alternative remedy except to approach this
Hon’ble High Court under Article 226/ 227 of the Constitution of India.
(i) This Hon’ble Court be pleased to issue a writ. Order or direction/s particularly a writ in the nature of
certiorari and to call for the record and proceedings relating to the said impugned order dated
____________ and set aside and quash the same as illegal, arbitrary and against the principles of
natural justice and fair play.
(ii) And Direct the Respondent authorities herein to reinstate the Petitioner in service as _____________
with all applicable monetary and service benefits including the benefit of back wages with effect from
the date of suspension of this Petitioner from service, i.e., _____ date.
(iii) Direct that the Petitioner be awarded costs of this petition.
(iv) Pass such order or further orders as this Hon’ble Court may deem fit and proper in the facts and
circumstances of the case.
Petitioner
Adv for Petitioner
Date _____
Place _____
Page 12 of 12
11.3 Specimen
End of Document
12.1 Introduction to Consumer Protection Act
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER XII DRAFTING OF COMPLAINTS AND
APPLICATIONS UNDER CONSUMER LAW
CHAPTER XII DRAFTING OF COMPLAINTS AND APPLICATIONS

UNDER CONSUMER LAW
12.1 Introduction to Consumer Protection Act

12.1.1 Consumer Protection Act of 2019
The Consumer Protection Act of 1986 has been replaced by the Consumer Protection Act of 2019. The Act of 2019
received the assent of the President of India and was published in the official gazette on 9 August 2019. The New
Act has come into force from 20th July 2020.
The following provisions of the act shall come into force:
• Section 2 [Except clauses (4), (13), (14), (16), (40)] [Definitions]

• Sections 3 to 9 (both inclusive); [Consumer Protection Councils]
• Sections 28 to 73 (both inclusive); [Except sub-clause (iv) of clause (a) of sub-section (1) of section 58.]
[Consumer Disputes Redressal Commission]
• Sections 74 to 81 (both inclusive); [Mediation]
• Sections 82 to 87 (both inclusive); [Product Liability]
• Sections 90 and 91; [Except sections 88, 89, 92 & 93] [Offences and Penalties]
• Sections 95, 98, 100, Section 101 [Except clauses (f) to (m) and clauses (zg), (zh) and (zi) of sub-section
2] [Miscellaneous]
• Sections 102, 103, 105, 106, 107 [Except sections 94, 96, 97, 99, 104] [Miscellaneous]
End of Document
12.2 The Key Features of the Consumer Protection Act, 2019
Dr Medha Kolhatkar

UNDER CONSUMER LAW

The Consumer Protection Act, 2019 seeks to replace the 1986 Act which is more than 3 decades old. Some of the
key features of the new legislation are as under:
12.2.1 Definition of Consumer
A consumer is defined as a person who buys any good or avails a service for a consideration. It does not include a
person who obtains a good for resale or a good or service for commercial purpose. It covers transaction through all
modes including offline, and online through electronic means, teleshopping, multilevel marketing or direct selling.
Definition of Consumer under the Act of 2019
“Consumer” means any person who—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or
under any system of deferred payment and includes any user of such goods other than the person who
buys such goods for consideration paid or promised or partly paid or partly promised, or under any system
of deferred payment, when such use is made with the approval of such person, but does not include a
person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment and includes any beneficiary of such service other
than the person who hires or avails of the services for consideration paid or promised, or partly paid and
partly promised, or under any system of deferred payment, when such services are availed of with the
approval of the first mentioned person, but does not include a person who avails of such service for any
commercial purpose.
Explanation.—For the purposes of this clause,—
(a) the expression “commercial purpose” does not include use by a person of goods bought and used by
him exclusively for the purpose of earning his livelihood, by means of self-employment;
(b) the expressions “buys any goods” and “hires or avails any services” includes offline or online
transactions through electronic means or by teleshopping or direct selling or multi-level marketing.
12.2.2 Consumer Complaint
Under the Consumer Protection Act, 2019, now the consumer can file complaint at the forum located at the place of
residence or work of the consumer. The new Act aims to reduce the inconvenience to the consumers. Under the
Act of 1986, the consumer complaint could be filed where the cause of action arose or where the opposite party
Page 2 of 3
resides or works for gain. The 2019 Act also provides for filing of e-complaint and for hearing and/or examining
parties through video conferencing. This provision will ensure that procedure for hearing consumer complaints is
now not only convenient but will also encourage the consumers to come forward to seek redressal.
12.2.3 Enhancement of Pecuniary Jurisdiction
Under the new Act the following is the pecuniary jurisdiction.
National Commission___ above Rs. 10 crore
State Commission______ Up to Rs. 10 crore
District Commission____ Up to Rs. 1 crore
12.2.4 Establishment of Central Consumer Protection Authority
A new regulatory body by name Central Consumer Protection Authority is proposed to be established under the
new Act. The Central Consumer Protection Authority will regulate matters relating to violation of rights of
consumers, unfair trade practices and false or misleading advertisements which are prejudicial to the interests of
public and consumers and to promote, protect and enforce the rights of consumers as a class. The Central
Authority shall have an investigation wing for the purpose of conducting inquiry or investigation under this Act.
12.2.5 Establishment of Consumer Mediation Cell
A Consumer Mediation Cell is proposed to be established for each of the district commissions and the state
commissions of that state. Pursuant to mediation, if an agreement is reached between the parties with respect to all
of the issues involved in the consumer dispute or with respect to only some of the issues, the terms of such
agreement shall be reduced to writing accordingly, and signed by the parties to such dispute or their authorised
representative. Based on the settlement report, the District Commission or State Commission or the National
Commission shall within 7 days pass suitable order recording such settlements of consumer dispute and dispose of
the matter accordingly.
12.2.6 Product Liability and Penalties
A product liability action may be brought by a complainant against a product manufacturer or a product service
provider or a product seller, as the case may be, for any harm caused to him on account of a defective product. Any
manufacturer or service provider who causes a false or misleading advertisement to be made which is prejudicial to
the interest of consumer shall be punished with imprisonment for a term which may extend to 2 years and with fine
which may extend to Rs 10 lakh; and for every subsequent offence, be punished with imprisonment for a term
which may extend to 5 years and with fine which may extend to Rs 50 lakh. The Act also provides punishment for
manufacturing, for sale or storing, selling or distributing or importing products containing adulterant and spurious
goods. The new legislation also prescribes punishment on failing to comply with any direction given by the central
authority under sections 20 and 21 of the Act. The Central Consumer Protection Authority can also prohibit the
endorser of a misleading advertisement from endorsing that particular product or service for a period up to 1 year.
For every subsequent offence, the period of prohibition may extend to 3 years. However, there are certain
exceptions when an endorser will not be held liable for such a penalty.
12.2.7 Consumer Disputes Redressal Commissions (CDRC)
Consumer disputes redressal commissions will be set up at the District, State and National levels. A consumer can
file a complaint with CDRC in relation to (i) Unfair Trade Practice or Restrictive Trade Practice (ii) Defective goods
or deficient services (iii) Overcharging or deceptive charging (iv) The offering of goods or services for sale which
may be hazardous for life and safety.
12.2.8 Review Power
The District Commission under section 40 and the State Commission under section 50 can exercise review power
pertaining to the order passed by them if there is an error apparent on the face of record, either of its own motion or
an application made by any of the parties within thirty days of such order.
Page 3 of 3
12.2.9 Appeal
(i) An appeal is maintainable to the State Commission against the order passed by the District Commission
on the grounds of facts or law within a period of forty five days. Appeal filed beyond forty five days may be
entertained by the State Commission if there was a sufficient cause for the delay. No appeal will be
entertained unless the appellant has deposited 50% of amount specified by the District Commission. No
appeal is maintainable pursuant to a settlement by mediation.
(ii) An appeal is maintainable before the National Commission against the order of the State Commission. The
appeal must be filed within a period of thirty days from the date of the order. All other conditions remain
same as stated above. An appeal shall lie to the National Commission from any order passed in appeal by
any State Commission, if the National Commission is satisfied that the case involves a substantial question
of law.
(iii) Any person aggrieved by an order made by the National Commission may prefer an appeal to the
Supreme Court within a period of 30 days from the date of the order. The Supreme Court may entertain an
appeal filed beyond 30 days if sufficient cause is shown. An appeal will be entertained by the Supreme
Court only on payment of 50% of the amount as may be prescribed.
12.2.10 Limitation for Filing Complaint
No complaint shall be admitted by the District Commission, State Commission or the National Commission unless it
is filed within 2 years from the date on which the cause of action arises. Delay in filing complaint may be condoned
if sufficient cause is shown. The reasons for condoning the delay should be recorded by the concerned authority.
End of Document
12.3 Meaning of Complaint
Dr Medha Kolhatkar

UNDER CONSUMER LAW

Section 2 (6) has defined the expression complaint as under:
(6) “complaint” means any allegation in writing, made by a complainant for obtaining any relief provided by or
under this Act, that—
(i) an unfair contract or unfair trade practice or a restrictive trade practice has been adopted by any trader
or service provider;
(ii) the goods bought by him or agreed to be bought by him suffer from one or more defects;
(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from any deficiency;
(iv) a trader or a service provider, as the case may be, has charged for the goods or for the services
mentioned in the complaint, a price in excess of the price—
(a) fixed by or under any law for the time being in force; or
(b) displayed on the goods or any package containing such goods; or
(c) displayed on the price list exhibited by him by or under any law for the time being in force; or (d)
agreed between the parties;
(v) the goods, which are hazardous to life and safety when used, are being offered for sale to the public—
(a) in contravention of standards relating to safety of such goods as required to be complied with, by
or under any law for the time being in force;
(b) where the trader knows that the goods so offered are unsafe to the public;
(vi) the services which are hazardous or likely to be hazardous to life and safety of the public when used,
are being offered by a person who provides any service and who knows it to be injurious to life and
safety;
(vii) a claim for product liability action lies against the product manufacturer, product seller or product
service provider, as the case may be;
A careful perusal of the above definition indicates that a complaint has to be made in writing to the appropriate
forum in case of unfair trade practice, restrictive trade practice, defective goods, deficiency in services, excessive
pricing and for hazardous goods.
12.3.1 Manner in which complaint shall be made
A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided may
be filed before the appropriate forum by the consumer or any recognised consumer association or one or more
consumers, the central government, the state government or the central authority. Complaint may be filed
electronically as prescribed. Every complaint shall be accompanied with such fee and payable in such manner,
Page 2 of 13
including electronic form as may be prescribed.
12.3.2 Who Can File a Complaint
(i) a consumer; or
(ii) any voluntary consumer association registered under any law for the time being in force; or
(iii) the Central Government or any State Government; or
(iv) the Central Authority; or
(v) one or more consumers, where there are numerous consumers having the same interest; or
(vi) in case of death of a consumer, his legal heir or legal representative or
(vii) in case of a consumer being a minor, his parent or legal guardian.
The above mentioned clauses thus make it clear that a complaint can be filed by the affected consumer himself or
by any recognised consumer association, even though the consumer is not the member of such association. The
term recognised consumer association means any voluntary consumer association registered under the Companies
Act, 1956 or any other law for the time being in force. The consumer protection 2019 has included two new
categories as complainants i.e. the central authority and in case of a minor his legal guardian.
12.3.3 Contents of the Complaint
A complaint must contain the following particulars:
(a) The name, description and the address of the complainant;

(b) The name, description and the address of the opposite party or parties, as the case may be, so far as they
can be ascertained;
(c) The facts relating to complaint and when and where it arose;
(d) Documents in support of the allegations contained in the complaint;
(e) The relief which the complainant claims.
The complainant or his authorised agent can present the complaint in person before the appropriate Consumer
Redressal Forum Commission. The complaint may also be sent by post to such forum/commission. The complaint
should be signed by the complainant or his authorised agent.
12.3.4 Reliefs Granted by the Consumer Court
Section 14 of the Act enumerates the reliefs that can be granted to the complainant under the Act. The provisions of
the section 14 are applicable not only to the District Forum but also to the State Commission according to section
18, and to the National Commission according to section 22. The Forum/Commission can grant only such reliefs as
are enumerated in section 14(1) of the Act and not beyond that.
According to section 14(1)
Finding of the District Forum—(1) if after conducting proceedings as per section 13, the District Forum is satisfied that
the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations
contained in complaint about the services are proved, it may grant relief by directing the opposite party to do one or more of
the following things, namely;
(a) To remove the defect pointed out by the appropriate laboratory;

(b) To replace the goods with new goods of similar description;
(c) To return the price or charges paid by the Complainant;
(d) To pay compensation for loss or injury suffered by the consumer due to negligence of the opposite party;
Page 3 of 13
(e) To remove the defects in goods or deficiencies in the services in question;

(f) To discontinue the unfair trade practice or the restrictive trade practice or not to repeat it;
(g) Not to offer the hazardous goods for sale;
(h) To withdraw the hazardous goods from being offered for sale;
(a) To cease manufacture of hazardous goods and to desist from offering services which are hazardous in
nature;
(b) To pay such sum as may be determined by it if it is of the opinion that loss or injury has been suffered
by a large number of consumers who are not identifiable conveniently;
(c) To issue corrective advertisement to neutralise the effect of misleading advertisement at the cost of the
opposite party responsible for issuing such misleading advertisement;
(i) To provide for adequate costs to parties;
The Amendment Act, 2002 has inserted clauses (ha), (hb), and (hc) in section 14(1) of the Act.
12.3.5 Limitation for Filing Consumer Complaint
Limitation for filing consumer complaint as per section 24A of the Consumer Protection Act, 1986 is 2 years from
the date on which the cause of action has arisen.
On the plain reading of section 24A(2), it becomes clear that the Consumer Forums can entertain the complaint
beyond the period of 2 years if the complainant can show that he had sufficient cause for not filing the complaint
12.3.5.1 Enforcement and Remedies
If the District Forum, the State Commission or the National Commission, as the case may be, is satisfied that the
goods suffer from any defects then it may direct removal of the defects; to replace the goods, to return the price, to
pay compensation for the loss and injury suffered by the consumer and to grant punitive damages and also to
remove deficiency in services, to discontinue Unfair Trade Practice and Restrictive Trade Practice as may be
relevant, necessary and applicable. The Consumer Commission is also empowered to ensure that no hazardous
goods are offered for sale. The Consumer Commission is provided with sufficient powers to ensure proper and
effective enforcement of their orders passed from time to time.
12.3.6 Drafting of Consumer Complaints and Applications under COPRA
(1) While drafting the consumer complaint the language should be simple and the facts should be stated in a
concise and chronological order.
(2) The complaint should be in such a form that the Consumer Commission is able to comprehend the facts,
contentions, allegations and grievance suffered by the complainant and the relief which the consumer
desires from the forum.
(3) If the consumer complaint is regarding some defect of the goods, then what the defects are should be
stated. Also a reference should be made to the documents proving the purchase of goods, defect in goods,
deficiency in services and the same should be produced along with the complaint.
(4) Enumerate as to how the consumer has suffered due to the negligence or breach committed by the
opposite party, thereby justifying quantum of compensation, to be claimed in the complaint.
(5) Details should be given as to how the present redressal commission has jurisdiction to entertain and
decide the complaint.
(6) In the next Para, the complainant should state when the cause of action accrued to him, i.e., when the
wrong was committed or when the opposite party refused to attend to the complaint or grievances of the
complainant.
(7) The complaint is within the period of limitation, should be stated. The complaint must also state that the
court fee stamp is paid.
Page 4 of 13
(8) In the next Para, the complainant should set out the various reliefs which he wants the redressal
commission to grant him.
(9) The complaint should end with the signature, verification and an affidavit has to be filed in support of the
complaint.
12.3.7 Reply to the Complaint
(1) The reply must be filed within the time prescribed.

(2) Reply should be drafted like a written statement, i.e., there should be general and specific denials of the
allegations made in the complaint.
(3) The contentions, defences of the opposite party should be stated after the specific denials. If a fact is not
denied it is presumed to have been admitted. Hence, care should be taken to deny all the averments which
are not admitted by the opposite party.
(4) The reply also must be supported by an affidavit.
(5) The reply must refer to the various documents based on which the defence is set up. All the documents
must be produced at the time of submitting the reply.
Every complaint and reply to the complaint should be accompanied by an affidavit along with all documents on
which the consumer and the opposite party relies for their respective contentions.
12.3.8 Specimen
How to draft a complaint
Specimen No. 1
BEFORE THE HON’BLE STATE COMMISSION
AT_ (PLACE)_________
Complaint No._______/_________
Complaint for_______
The complainant above-named respectfully submits as under.
(1) Introduction
In this paragraph who the complainant and respondent/opposite party/ies are should be explained.
(2) Narration of facts
In the second paragraph start narrating the facts in chronological order. When the facts are numerous,
introduce the basic facts in this paragraph.
(3) Continuation of the facts
For example, in paragraph 2 state what goods were purchased and in this paragraph state the defects
in the goods, delay in delivery, deficiency in service etc.
(4) Rectification
Page 5 of 13
Elaborate what communication, correspondence has taken place between the parties to resolve the
issue between the parties. Particulars of notices if any exchanged between the parties.
(5) State the responses of opposite party to the defect/deficiency, which were pointed out by the complainant.
(6) Other Details if any
(7) Details of documents
In this paragraph the complainant should give details of the documents, which he/she is producing
before the forum; for example, Agreement between the parties, Purchase Order, Tickets, Receipts,
Invoice, details of medical treatment, Discharge card, etc. as may be applicable. Any other reference or
any medical tests, diagnosis, etc. These documents should be annexed with the complaint and
attested as “True Copy”.
(8) Details of the suffering/losses and compensation claimed by the complainant and to what reliefs the
complainant is entitled..
(9) Jurisdiction
In this paragraph the complainant should explain how the District Commission, State Commission or
the National Commission has jurisdiction (pecuniary and territorial) to entertain, try and decide the
complaint in question.
(10) Limitation and cause of action
The complainant should state in this paragraph as to when the cause of action arose for filing the
complaint and that how the present complaint is well within the period of limitation.
(11) Prayer clause
Detail of the reliefs which the complainant wants the Forum to grant in his favour.
Date________
Place________ Sd. Complainant
Verification
I_______________________ Age_______ Occupation________ R/at___________ the complainant above-named

do hereby solemnly verify that the contents of my above complaint are true and correct to the best of my
knowledge, belief and information verified by me on this _________ day of _________ at _________.
Sd, Complainant
Specimen No. II
Consumer Complaint for Defect in Goods
BEFORE THE DISTRICT COMMISSION _________
AT_____________
Page 6 of 13
Complaint No.__________/20___
Complaint under section _________of Consumer Protection Act
The complainant above-named begs to state most respectfully as under:
(1) That the complainant on _____ date purchased a Microwave Oven from opponent No. 1 who is a Dealer of
opponent No. 2. The said Microwave Oven is manufactured by the opponent No. 2
(2) The complainant states that, the complainant has produced the receipt of purchase of the said Microwave
Oven from the opponent No. 1 along with the list of documents.
(3) The complainant further submits that the Microwave Oven was delivered on the same day, i.e., ______
date. However, the dealer informed him that their authorised person would come after two days to give
demonstration and other instructions pertaining to the use and maintenance of the said oven.
(4) The complainant waited for 2 days however, the opponent No. 1 failed to send any of his staff to give
demonstration of the said oven and so the complainant again called up the opponent No. -1 to send
someone for demonstration.
(5) That after 4 days the opponent No. 1 finally deputed his staff by name Mr. ___________ who unpacked the
Oven, installed it and tried to operate it. Mr.___________ asked this complainant to give something to be
roasted so that he can show the demonstration.
(6) The complainant submits that the complainant gave him some “Papad”s to be roasted, on keeping the
papads in the oven there were sparks and the papads were in flames inside the oven. The complainant
and the demonstrator Mr._________ of opponent No. 1 all got scared and switched off the power supply.
The demonstrator Mr.__________ tried to switch on the oven after 15 minutes but the oven was non-
operational. He informed the complainant that he would try to repair the same or would replace the oven.
(7) The complainant submits that the complainant informed the opponent No. 1 about all these happenings
and requested to replace the oven. However, to the utter surprise and shock of this complainant the
opponent No. 1 started contending that complainant had used the oven before the demonstration and as
this complainant had no knowledge to use the oven, he has damaged the said oven and that neither
opponent No. 1 nor the opponent No. 2 are responsible for the replacement of the oven.
(8) The complainant submits that, the oven was unpacked and operated only and only by the demonstrator of
opponent No. 1 Mr. __________, and in his report he had stated the said fact. The said report was given to
the opponent No. 1.
(9) The complainant submits that this complainant is entitled to get the oven either repaired, replaced, or
should get entire amount of consideration, i.e., the purchase price from the opponents. The complainant
submits that the opponents are guilty of negligence and have given defective oven to this complainant..
The complainant states that, a lot of harassment and anxiety has been caused because of this
irresponsible, negligent, and fraudulent attitude of the opponent No. 1.
(10) The complainant submits that as the opponents failed to adhere to the requests made orally and in writing
by letter dated_________, therefore complainant had no other alternative but to approach this Hon’ble
Commission for redressal.
(11) The cause of action first arose on ________date when the complainant came to know that Microwave
Oven is defective and thereafter every day till the filing of this complaint. Thus the complaint filed today is
well within the period of limitation.
(12) The opponent No. 1 works for gain in __________, and oven was also purchased at __________, and
claim of this complainant is Rs ________ therefore this Hon’ble Commission has territorial as well as
pecuniary Jurisdiction to try, entertain and decide this complaint.
(13) The applicable court fee stamp is paid herewith.
Page 7 of 13
(a) The opponents be directed to replace the oven or return the price of the oven of Rs _______to the
complainant.
(b) Award compensation of Rs________ for supplying defective goods & for the harassment and anxiety
caused.
(c) Award costs of this complaint.
Place________
Date ________ Sd. Complainant
Consumer Complaint for Deficiency in Services
Specimen No. 1
BEFORE THE HON’BLE STATE COMMISSION
AT__ (PLACE)________
Complaint No.__________/20____
Complaint for deficiency in services
The complainant above named most respectfully states as under:—
(1) The complainant entered into an agreement for sale with the opponents on _________date for the
purchase of flat at ______________. The said agreement was registered on ____________ date at
__________. The complainant has annexed the copy of the Agreement & Registration receipt along with
this complaint.
(2) The opponent No. 1 is a registered Partnership firm of Builders & Promoters carrying on the business of
construction for the last 12 years.. The opponent No. 2 and opponent No. 3 are the partners of the
opponent No. 1 firm.
(3) The complainant submits that as per the agreement dated_____in clause No. ___ the opponents were to
deliver the possession of the flat on ______________ date. However, the opponent delivered the
possession of the flat on ____________ date. Thus there was a delay of almost 8 months. The opponent
No. 1 issued possession note on __________ date. Thus the opponents also admit that there was a delay
on their part to deliver possession of the flat as per agreed terms and conditions.
(4) The opponents had been promising verbally to the complainant that they would adequately compensate
the complainant for the said delay but have failed to honour their promise. The opponents, therefore, are
guilty of deficiency in services.
(5) The complainant submits that, due to the delay in the delivery of possession of the flat for almost 8 months,
this complainant was required to continue to stay in the rented premises and had to incur expenses worth
Rs. ____________/- and also suffered a lot of inconvenience.
(6) The complainant submits that as per the agreed terms & conditions this complainant has paid the entire
consideration, i.e., Rs ____________/- (Rupees____________) to the opponents. The said payment is
duly acknowledged by the opponents and have issued valid receipts thereof.
(7) The complainant contends that the opponents are guilty of deficiency in services as the opponents have
used sub-standard construction material. The bathrooms and the toilet blocks have already started leaking.
The complainant has brought this fact to the opponent’s notice.
Page 8 of 13
(8) The complainant states that the opponents had sent one of their employees to inspect the leakage but after
that, opponents have taken no corrective action. The said leakage is causing a lot of inconvenience and
health hazards to the complainant. The leakage persists in few other flats as well.
(9) The complainant submits that the opponents have neither compensated this complainant for the delay in
delivering the possession of the flat and nor have carried out the necessary repairs.
(10) The complainant submits that the opponents are guilty of breach of contract, negligence and deficiency in
services.
(11) The complainant submits that the opponents should be directed to carry out the necessary repairs or in the
alternative be directed to pay the complainant expenses that would be incurred by him to carry out the said
repairs. The opponents are also liable to pay an amount of Rs_________, i.e., rent of 8 months due to
delay in delivery of possession, so also the opponents are liable to pay compensation for breach of
contract, negligence and deficiency in services to the tune of Rs. ________ together with interest thereon
at the rate of 18% p.a.
(12) The complainant had sent a notice on _____ date but the opposite party instead of complying with the
notice has sent a false reply on _____ date. Thus, the complainant had no other option but to approach
this Hon’ble Commission for redressal.
(13) The cause of action first arose on _______________date when there was a delay in delivery of
possession, then on ___________date when the opponents failed to carry out repairs and thereafter
everyday till the filing of this complaint. Thus the complaint filed today is well within the period of limitation.
(14) The cause of action arose at ______________ and the opponents also work for gain at _______________,
the complainant is claiming Rs._____ as compensation thus the Hon’ble Commission has jurisdiction to try,
entertain and decide this complaint.
(15) The appropriate court fee is paid herewith.
(1) The opponents be directed to pay Rs _______________, i.e., rent paid by the complainant for the
rental premises due to the delay in delivery of possession of this complainant’s flat at ______ by the
opponents.
(2) The opponents be directed to carry out repairs to stop the leakage in the bathrooms & toilet block or in
the alternative to pay Rs ____________, i.e., (approximately) expenses necessary to carry out the said
repair work.
(3) The opponents be directed to pay an amount of Rs___________ together with interest thereon at the
rate of Rs. 18% p.a. as compensation for the delay, breach of contract, negligence & deficiency in
services.
(4) Award costs of this complaint.
(5) Pass any other just & equitable order as deemed fit in the interest of justice.
Place________
Date ________ Sd. Complainant
Verification
I, ____ age ____ occupation ____ R/at ____ the complainant hereinabove do hereby state and verify that whatever
is stated in the above complaint is true and correct to the best of my knowledge, belief and information. The same is
verified by me on ____ date at ____ (Place).
Specimen No. II
BEFORE THE HON’BLE DISTRICT COMMISSION AT _____

Page 9 of 13
______
Consumer Complaint No. _____ /20__
Recovery of Insurance Claim of Rs. 26,07,500/- and for compensation
The Complainant most respectfully states as under:-
(1) The Complainant states that the Complainant _____ Jewellers Pvt. Ltd. having its office at _____ is a firm
engaged in the business of manufacturing and export of gold and diamond jewellery.
(2) The Complainant states that the Complainant sent an export consignment of gold jewellery to _____ by Air
Freight through _____ Airlines (i.e., O.P. No. 3) as per Airway Bill No. _____. A copy of the said airway bill
has been produced along with this complaint.
(3) The Complainant submits that the said export was effected through the _____ company as per the invoice
dated _____.
(4) The Complainant states that in accordance with the usual practice and procedure the customs authorities
conducted the inspection of the consignment and it was only thereafter that the jewellery was finally
packed securely in a tin box. The Custom Officer who inspected the consignment had signed on the
invoice in token of his having inspected and satisfied himself about the correctness of the description and
contents of the box set out in the invoice. The Consignee was _____ Trading Company.
(5) The Complainant contends that the Complainant had taken out Marine Insurance Policy and insured the
said consignment against all risks including war risk etc with the Opposite Party No. 1 and 2 who presented
the _____ Insurance Company Ltd., by taking out a policy of Marine Insurance for a total sum of Rs.
26,07,500/-. The Cover Note dated _____ has been produced by the Complainant herewith. The Cover
Note specifically states that the policy issued to the Complainant covers “all risks from warehouse to
warehouse”.
(6) The Complainant states that since the export in question was effected through _____ company, the
Complainant handed over all the export documents to the branch office of the _____ company at Chennai
and they, in turn sent the documents to _____ Bank at Chennai for being transmitted to the _____ Bank
Chicago Branch for collection.
(7) The Complainant states that the Consignee _____ Co. Pvt. Ltd., were informed by the _____ Airlines from
its Chicago office that the consignment has been received in Chicago on _____ date, but it was
subsequently found missing. The _____ Airlines i.e. O.P. No. 3 has sent a letter dated _____ confirming
that the consignment could not be located as on _____ date.
(8) The Complainant submits that on learning from the Consignee, i.e., _____ Company and from _____
Airlines that the consignment was missing, this Complainant wrote a letter dated _____ to the O.P. No. 2
(Insurer) conveying the particulars of the loss and lodging a claim for the full insured amount on the ground
of loss of the packet.
(9) The Complainant states that the O.P. No. 1 and 2 replied to the letter of the Complainant on _____ date
and called upon the Complainant to furnish negotiable documents. The Complainant complied with the
same; however, there was no response from the O.P. No. 1 and 2 towards settlement of the claim of the
Complainant.
(10) The Complainant states that on _____ date the Complainant wrote to the O.P. No. 2 _____ insurance
company reiterating its claim and requesting for its settlement at an early date. Complainant also pointed
out the fact that the company’s bankers were charging the firm penal interest at the rate of 26% per annum
and that the O.P. No. 1 and 2 are liable to pay the said interest.
(11) The Complainant states that the Complainant again through letter dated _____ and _____ requested the
insurance company, i.e., Opposite Party No. 2 to settle the claim at the earliest.
(12) The Complainant states that as the Opposite Party did not respond to the request letters of this
Complainant, the Complainant is compelled to file the present complaint for recovery of an amount of Rs.
Page 10 of 13
26,07,500/- from the Opposite Party being the insured value of the consignment with interest @ 18% per
annum from _____ date till the actual recovery of the claim amount and for compensation for refusal to
settle the claim. Thus the _____ insurance company, i.e., O.P. No. 2 is guilty of deficiency in services.
(13) The cause of action arose on _____ date when the Opposite Party did not settle the claim and thereafter
every day till the filing of this complaint. Hence, the complaint filed today is well within the period of
limitation.
(14) That the Opposite Party is having its registered office at _____, the consignment was booked and insured
at _____, the claim is made at Rs. _____ hence, this commission has pecuniary and territorial jurisdiction
to entertain, try and decide this complaint.
(15) The necessary Court Fee Stamp is paid herewith.
(16) It is therefore, most respectfully prayed as under:—
a) Direct the opposite party to pay an amount of Rs. 26,07,500/- together with interest @18% per annum
from _____ date till the actual recovery of the amount.
b) Direct the opposite party to pay an amount of Rs. _____ as compensation for deficiency services
c) Award cost of this complaint.
d) Pass any other just and equitable order as deemed fit in the interest of justice.
Place________
Date ________ Sd of Complainant
Verification
I, _____ age _____ occupation _____ R/at _____ the complainant hereinabove do hereby state and verify that
whatever is stated in the above complaint is true and correct to the best of my knowledge, belief and information.
The same is verified by me on _____ date at _____ (Place)
Specimen No. III
(Affidavit Filed in support of the complaint)
BEFORE THE HON’BLE DISTRICT FORUM/
STATE COMMISSION/NATIONAL COMMISSION
AT___(PLACE)________
Complaint No. ______/20___
Affidavit
I name ____________ Age ______ Occupation ___________ R/at ___________, the above-named deponent do
hereby state on solemn affirmation and declare as under:
(i) That I am the complainant in the above titled consumer case. I am thoroughly conversant with the facts
and circumstances of the present case and competent to swear this affidavit.
(ii) That the facts contained in the accompanying complaint, the contents of which have not been repeated
herein for the sake of brevity may be read as an integral part of this affidavit.
(iii) I state that the opposite party is liable to pay compensation of Rs. _____ to me for supplying defective
goods/for deficiency in services.
Page 11 of 13
(iv) The facts of the said mentioned complaint are true and correct to the best of my knowledge, belief and
information.
I hereby solemnly affirm and declare that whatever is stated hereinabove is true and correct to the best of my
knowledge, belief and information and nothing material has been concealed therein. Verified this ______ day of
____ 20____ at ________.
I know the Affiant.
Affiant
APPLICATION FOR CONDONATION OF DELAY
Specimen
Application for Condonation of delay
BEFORE THE HON’BLE ___________________
AT _____________
Complaint No.______ /20_____
Application for Condonation of delay.
The applicant / appellant most respectfully states as under:
(1) That the appellant has filed the accompanying appeal against the respondent on various grounds. This
applicant / appellant craves leave of this appellate authority to read the appeal memo as part and parcel of
this application.
(2) That the appellant humbly submits that the Hon’ble District Commission passed the order on ________
date and the certified copies of the Judgment and order were applied on _________ date and the same
were ready on _________ date. Thus there is a delay of 22 days in filing this appeal (In the second
paragraph explain how many days’ delay is there.)
(3) The appellant/applicant submits that the day on which the certified copy was ready, this appellant’s mother
suffered severe heart attack and had to undergo angioplasty at ___________ Hospital and therefore from
________ date to _______ date this appellant was busy attending his mother. Thereafter due to outbreak
of swine flu he was stranded at ________. Thus this applicant/ appellant was prevented for bona-fide
reasons from filing the present appeal. (In paragraph 3 explain the cause of the delay).
(4) That the applicant/appellant states that he has a good case on merits and is seriously aggrieved by the
impugned order passed by the Hon’ble Forum. If the delay of 22 days in filing this appeal is not condoned
grave injustice will be caused to this appellant/applicant.
(5) That the applicant/appellant submits that no hardship, inconvenience will be caused to the opposite party if
delay as prayed for is condoned.
(6) That the applicant/appellant submits that along with this application the appellant has produced all the
relevant documents, medical certificates etc. evidencing the fact of hospitalisation and medical treatment.
(7) That the applicant, therefore, most respectfully submits that the applicant had sufficient cause for not filing
the present complaint within limitation as stated above and there are just and sufficient grounds justifying
and warranting the condonation of delay and deciding the present appeal on merits.
(8) Therefore, in view of the aforesaid facts and circumstances, this applicant / appellant most humbly prays
as under:
(i) Kindly condone the delay of 22 days in filing the present appeal and admit the same.
(ii) Pass any other just and equitable order as deemed fit in the interest of justice.
Page 12 of 13
Place________
Date ________ Sd. Appellant
APPEALS
Any party aggrieved by the decision of the Consumer Redressal Commission can move up the hierarchy to set
aside the impugned order by filing appeal.. Every appeal has to be accompanied by the certified copy of the
Judgment and order passed by the lower Redressal Commission. The District Commission has no appellate
powers. An appeal can be filed before the State Commission, National Commission or the Hon’ble Supreme Court
of India.
Specimen
BEFORE THE HON’BLE______COMMISSION AT______
(APPELLATE JURISDICTION)
AT_(PLACE)________
Appeal No. _________/20_____
Appeal against the Judgment and order Passed by __________ on_____ date__
The appellant above-named states most respectfully as under:
(1) Being aggrieved and dissatisfied by the judgment and order passed by the ______ on ______date, the
present appellant has preferred this appeal.
(2) This Para should state the brief facts of the case and the order passed by the District Forum / State
Commission, as the case may be.
(3) That the impugned order dated _______ passed by the consumer fora is liable to be set aside / modified /
quashed, inter alia on the following grounds.
(a) ________
(b) ________
(c) ________ etc.
(Here enumerate the reasons based on facts and law as to why the impugned order is bad / incorrect.)
(4) That the appellant has not preferred any other appeal against the impugned order.
(5) (In this Para state that the appeal is within the period of limitation.)
The impugned order was passed on ______ date the appellant applied for certified copies on _______
date the same were made available on ________ date. Hence the present appeal filed today is within
the period of limitation.
(6) This Para should give the details of the amount deposited at the time of filing the appeal as is required by
the Act.
(7) The necessary Court Fee Stamp is paid here with.
Page 13 of 13
(8) (This Para should state the prayer made to the Appellate Consumer Commission.) It is therefore, most
respectfully prayed that this Hon’ble Commission may kindly be pleased to allow the appeal / set aside /
modify / quash the order dated______ passed by the District Forum / State Commission.
Place________
Date ________ Appellant
End of Document
13.1 Introduction
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER XIII PETITIONS AND APPLICATIONS UNDER
MOTOR VEHICLES ACT, 1988
CHAPTER XIII PETITIONS AND APPLICATIONS UNDER MOTOR

VEHICLES ACT, 1988
13.1 Introduction
Motor Vehicles Act, 1988 is a central legislation through which the road transport is regulated in the country. The
said Act has been amended from time to time to keep it updated with the changes taking place in the movement of
road transport. The Act aims to provide speedy and adequate compensation for the victims/legal heirs of the victims
of a road accident caused due to motor vehicle. The doctrine of no fault liability ensures prompt and speedy remedy
to the aggrieved person, i.e., who suffers because of accident.
13.1.1 Motor Vehicle Act, 2019
In order to prevent the menace of road accidents, the central government has amended the Motor Vehicles Act,
1988, by promulgating the Motor Vehicle Act, 2019. Under the Act of 2019, for hit and run cases, the compensation
now provided is:
i) In case of death Rs. 2 lakh

ii) In case of grievous injury Rs. 50,000/-
The new Act allows the central government to order for recall of defected motor vehicles. A new body namely, “The
National Safety Board” is to be created by the central government to advice the central government and state
governments on all aspects of road safety and traffic management. The amount of fine has been increased under
various heads. Driving without license will be fined at Rs. 5,000/- instead of Rs. 500/- earlier. Fine for drink and
driving is now Rs. 10,000/- along with imprisonment of 6 months. For the repetition of this act, fine is Rs. 15,000/-.
The Motor Vehicles Act, 2019 has not been implemented by many states. Some states have reduced the quantum
of fines payable under the Motor Vehicle Act, 2019.
End of Document
13.2 Compensation in Case of Hit and Run Motor Accidents
Dr Medha Kolhatkar

VEHICLES ACT, 1988

(Motor Vehicles Act, 2019)
Section 161. (1) Notwithstanding anything contained in any other law for the time being in force or any instrument having
the force of law, the Central Government shall provide for paying in accordance with the provisions of this Act and the
scheme made under sub-section (3), compensation in respect of the death of, or grievous hurt to, persons resulting from hit
and run motor accidents.
(2) Subject to the provisions of this Act and the scheme made under sub-section (3), there shall be paid as
compensation,— (a) in respect of the death of any person resulting from a hit and run motor accident, a fixed sum of two
lakh rupees or such higher amount as may be prescribed by the Central Government; (b) in respect of grievous hurt to any
person resulting from a hit and run motor accident, a fixed sum of fifty thousand rupees or such higher amount as may be
prescribed by the Central Government.
(3) The Central Government may, by notification in the Official Gazette, make a scheme specifying the manner in which the
scheme shall be administered by the Central Government or General Insurance Council, the form, manner and the time
within which applications for compensation may be made, the officers or authorities to whom such applications may be
made, the procedure to be followed by such officers or authorities for considering and passing orders on such applications,
and all other matters connected with, or incidental to, the administration of the scheme and the payment of compensation
under this section.
(4) A scheme made under sub-section (3) may provide that,— (a) a payment of such sum as may be prescribed by the
Central Government as interim relief to any claimant under such scheme; (b) a contravention of any provision thereof shall
be punishable with imprisonment which may extend to two years, or with fine which shall not be less than twenty-five
thousand rupees but may extend to five lakh rupees or with both; (c) the powers, functions or duties conferred or imposed
on any officer or authority by such scheme may be delegated with the prior approval in writing of Central Government, by
such officer or authority to any other officer or authority.
Section 162. (1) Notwithstanding anything contained in the General Insurance Companies (Nationalisation) Act, 1972 or
any other law for the time being in force or any instrument having the force of law, the insurance companies for the time
being carrying on general insurance business in India shall provide in accordance with the provisions of this Act and the
schemes made under this Act for treatment of road accident victims, including during the golden hour.
Page 2 of 2
(2) The Central Government shall make a scheme for the cashless treatment of victims of the accident during the golden
hour and such scheme may contain provisions for creation of a fund for such treatment.
Section 163. (1) The payment of compensation in respect of the death of, or grievous hurt to, any person under section 161
shall be subject to the condition that if any compensation (hereafter in this sub-section referred to as the other
compensation) or other amount in lieu of or by way of satisfaction of a claim for compensation is awarded or paid in respect
of such death or grievous hurt under any other provision of this Act or any other law for the time being in section force or
otherwise, so much of the other compensation or other amount aforesaid as is equal to the compensation paid under
section 161, shall be refunded to the insurer.
(2) Before awarding compensation in respect of an accident involving the death of, or bodily injury to, any person arising out
of the use of a motor vehicle under any provision of this Act other than section 161 or any other law for the time being in
force, the Claims Tribunal, court or other authority awarding such compensation shall verify as to whether in respect of such
death or bodily injury compensation has already been paid under section 161 or an application for payment of
compensation is pending under that section, and such Tribunal, court or other authority shall— (a) if compensation has
already been paid under section 161, direct the person liable to pay the compensation awarded by it to refund to the
insurer, so much thereof as is required to be refunded in accordance with the provisions of sub-section (1); (b) if an
application for payment of compensation is pending under section 161 forward the particulars as to the compensation
awarded by it to the insurer.
Explanation.—For the purpose of this sub-section, an application for compensation under section 161 shall be deemed to
be pending— (i) if such application has been rejected, till the date of the rejection of the application; and (ii) in any other
case, till the date of payment of compensation in pursuance of the application.
Section 164. (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument
having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or
grievous hurt due to any accident arising out of the use of motor vehicle, a compensation, of a sum of five lakh rupees in
case of death or of two and a half lakh rupees in case of grievous hurt to the legal heirs or the victim, as the case may be.
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the
death or grievous hurt in respect of which the claim has been made was due to any wrongful act or neglect or default of the
owner of the vehicle or of the vehicle concerned or of any other person.
(3) Where, section in respect of death or grievous hurt due to an accident arising out of the use of motor vehicle,
compensation has been paid under any other law for the time being in force, such amount of compensation shall be
reduced from the amount of compensation payable under this section.
Section 164A. (1) The Central Government, may make schemes for the provision of interim relief to claimants praying for
compensation under this Chapter.
(2) A scheme made under sub-section (1) shall also provide for procedure to recover funds disbursed under such scheme
from the owner of the motor vehicle, where the claim arises out of the use of such motor vehicle or other sources as may be
prescribed by the Central Government.
End of Document
13.3 Compensation on the Principle of “No Fault Liability”
Dr Medha Kolhatkar

VEHICLES ACT, 1988

Liability without fault—No fault liability.
13.3.1 Section 140 of the Motor Vehicles Act, 1988
Section 140 of the Motor Vehicles Act, 1988 recognises the principle of “No fault liability” in awarding compensation.
The plain reading of section 140 states that liability for compensation is present, irrespective of the fact whether the
owner of the vehicle was negligent or not. No fault liability means liability of a person even without any negligent act
on his part or even if he has taken due care and caution.
140. Liability to pay compensation in certain cases on the principle of no fault.—
(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor
vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and
severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this
section.
(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall
be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the
permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees.
(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the
death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or
default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default
of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of
compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such
person in the responsibility for such death or permanent disablement.
(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the
owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for
Page 2 of 2
the time being in force:
Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of
compensation payable under this section or under section 163A.
End of Document
13.4 Compensation under Section 166, Motor Vehicle Act, 1988
Dr Medha Kolhatkar

VEHICLES ACT, 1988

Section 165 of the Motor Vehicles Act provides for adjudicating of claims for compensation in respect of accidents
involving the death or bodily injury to persons arising out of the use of motor vehicles, or damages to any property
of a third party.
Section 166 lays down the provisions as to who can claim compensation. Sections 166 of the Motor Vehicles Act
states as follows:
166. Application for compensation
(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of
section 165 may be made—
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased;
or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the
deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such
application for compensation, the application shall be made on behalf of or for the benefit of all the
legal representatives of the deceased and the legal representatives who have not so joined, shall
be impleaded as respondents to the application.
(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims
Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local
limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction
the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall
contain a separate statement to that effect immediately before the signature of the applicant.
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an
application for compensation under this Act.
13.4.1 Specimen
Page 2 of 8
Specimen No. I
BEFORE THE HON’BLE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL ______
AT _______(PLACE).
Application No. _______/20__
Application under section 140 of the Motor Vehicles Act, 1988 for claim of Rs. ________
The above mentioned applicant most respectfully submits and prays as under:
(1) That the legal representatives of the deceased, have filed the claim application for compensation of Rs.
_______/- against the opponents for the grant of compensation on account of the death of
Late____________, under section 166 of the Motor Vehicles Act, 1988. The accident took place at
___________place in front of ______ temple on _______ date.
(2) That all the necessary particulars in respect of the accident, the details of the following, i.e., deceased,
offending vehicles, particulars of Insurance, Owner, driver, etc. are given in detail in the main claim
application under section 166. The applicant craves leave of this Hon’ble Court to read the main claim
application as part and parcel of this application.
(3) That the applicant has sanguine hopes to succeed in the claim application so filed. But some considerable
time is required for final disposal of the Claim Application. Therefore, the applicants have preferred this
application for the grant of interim relief under section 140 of the Motor Vehicles Act against the opponents
under the principle of “no fault liability.”
(4) The opponents are therefore liable to pay Rs. __________/- to the applicants on the ground of “no fault
liability,” as per the provisions of section 140 of the Motor Vehicles Act as amended by the amendment Act,
54 of 1994.
(5) The applicants therefore most respectfully pray that:
(a) The notice be issued to all the above opponents and insurer and they be directed to deposit
immediately a sum of Rs. _______/- in the Hon’ble tribunal as per the provisions of section 140 of the
Motor Vehicles Act.
Place _______ Applicants
Date _______ Advocate of Applicants
Specimen No. II
Application under section 140
BEFORE THE HON’BLE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL ______
AT _______(PLACE)
Application No. _______/20__

Page 3 of 8
Application under section 140 of the Motor Vehicles Act, 1988 for claim of Rs. ________
The above mentioned applicant most respectfully submits and prays as under:
(1) The applicant has filed the present claim application for the grant of compensation for an amount of Rs.
___________/- against the opponents. It is respectfully submitted that the facts and the circumstances in
which the accident took place are stated and pleaded by the applicant in the main claim application. The
contents of the main claim application, therefore, may kindly be referred at the time of hearing the present
application.
(2) The applicant submits that at the time of the accident, the injured, i.e., the applicant was driving the car viz.
Indica Vista bearing registration No._________ (hereinafter referred as the “said car”) and was proceeding
from _______ (place) towards __________ (place)/ direction. The applicant was driving the said car at a
moderate speed and was also observing/following all the rules and regulations of the traffic by driving on
the left side of the road.
(3) The applicant submits that, when this applicant’s car reached close to the place of the accident, at that
time, the driver of the opponent No. 2 was driving the tempo bearing Reg. No. __________ (hereinafter
referred to as “said tempo”) and was proceeding towards ______ direction, i.e., the same direction of the
vehicle of the applicant. The driver of the opponent was driving the said offending vehicle in a very rash,
negligent and reckless manner and was in excessive speed.
(4) The applicant states that the driver of the opponent No. 2 was not bothered about the safety of the public at
large and was driving the vehicle as if the entire public road was his private property.
(5) The applicant submits that the vehicle driven by the driver of the opponent No. 2 came crashing near the
applicant’s vehicle as the opponent’s driver was in high speed and lost control over the said tempo and
therefore dashed on to the vehicle of the applicant.
(6) The applicant states that the applicant suffered severe injuries all over the body including head injuries,
multiple fractures, etc. The applicant was thereafter admitted to the nearest Hospital at _______ place and
was later shifted to ______ Hospital in _________ place for treatment for a period from ______ date to
_____ date. The applicant states that the medical and hospital expenses amounted to Rs. __________/-
pursuant to the accident.
(7) The applicant submits that under the circumstances mentioned hereinabove, it is clear that the accident in
question took place due to the rash and negligent driving of the driver of the opponent No. 2.
(8) The applicant submits that the applicant has sustained multiple injuries all over the body. It is further
submitted that due to said injuries, the applicant is permanently disabled. In the circumstances referred
Page 4 of 8
hereinabove, it is clear that the applicant is permanently disabled. The certificate regarding permanent
disablement is produced. The applicant has filed the following documents, i.e.,
(i) FIR Complaint,
(ii) Spot Panchanama,
(iii) Form Comp AA, etc.
(9) It is stated that in the interest of justice the applicant be awarded an amount of Rs. _________/- under
section 140 of the Motor Vehicles Act under No Fault Liability, from the opponents. If the same is awarded,
no prejudice or harm would be caused to any of the opponents.
(10) It is therefore humbly prayed that:
(a) The applicant be awarded an amount of Rs. _________/- under section 140 of the Motor Vehicles Act
under No Fault Liability, from the opponents;
(b) The applicant be awarded an interest at the rate of ____% p.a. from the date of the application till the
realization of the amount;
(c) The applicant be awarded the cost of the application from the opponents;
(d) Pass any other order, which is just and equitable in the interest of justice.
Place: _______ Applicant
Date: _______ Advocate of Applicant
Specimen No. I
DRAFT PETITION FOR COMPENSATION IN CASE OF DEATH BEFORE THE MOTOR ACCIDENT CLAIMS
TRIBUNAL
Claim Application No. _______/20__
Application under sections 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation
Sir,
1. Name and father’s name of the Name and father’s name of the
deceased (husband’s name in case of deceased is required to be given and in
married women and widows) case the deceased was known by more
than one name, then all names be
mentioned
2. Full address of the deceased Address of the deceased is to be

repeated here
3. Age of the deceased Age of the deceased (enclose proof of

age)
4. Occupation of the deceased Occupation of the deceased may be

mentioned with all details
Page 5 of 8
5. Name and address of the employer of Name and address of the employer of
the deceased the deceased is to be given, if the
deceased was in service
6. Monthly income of the deceased Monthly income of the deceased from all
sources be given
7. Does the person in respect of whom Income details be furnished in this

compensation is claimed pay income column in case the deceased was an
tax? If so, state the amount supported by income tax payee
the documents
8. Place, date and time of accident Place, date and time of accident are to
be mentioned
9. Name and address of the police station Name and address of the police station
in whose jurisdiction the accident took in whose jurisdiction the accident took
place or was registered place or FIR was registered may be
mentioned
10. Was the person in respect of whom In case the deceased was traveling in
compensation is claimed traveling by the the vehicle then the details of the same
vehicle involved in the accident? If so may be furnished
give the name and place of starting the
journey and destination
11. Nature of injuries sustained Complete details of the injuries

sustained by deceased may be
mentioned
12. Name and address of the medical All details of the hospital etc in which the
officer/practitioner, if any who attended deceased was medically treated may be
on the injuries mentioned
13. Period of treatment and expenditure if Period of treatment and expenditure

any incurred incurred in treatment may be mentioned
14. Registration number and type of vehicle Registration number of the offending
involved in accident vehicle may be mentioned alongwith
type of vehicle as for example truck, bus,
car etc.
15. Name of the owner of the offending Name and address of the owner of the
vehicle offending vehicle as mentioned for
respondent no. 2 may be given
16. Name of driver of the offending vehicle Name of the driver as given for
respondent no. 1 may be mentioned
17. Name and address of the insurer of the Name and address of the insurer of the
vehicle vehicle may be mentioned and details of
the insurance, if available may be given
18. Has any claim been lodged with the In any case any claim been lodged with
owner/ insurer if so, with what result the owner/ insurer before filing claim
petition, the details of the same may be
mentioned
19. Name and address of the applicant Complete details of petitioners may be
mentioned
20. Relationship with the deceased The particulars regarding relationship of

petitioners with deceased are required to
Page 6 of 8
be given
21. Title of property of the deceased Being legal heir of the deceased
22. Amount of compensation claimed Amount of compensation being claimed

is to be given
23. Any other information that may be

necessary and helpful in the disposal of
the case
(i) That petitioner no. 1 is the wife, petitioner no. 2 is the father and petitioner no. 3 is the mother of the
deceased who had died because of accident caused by respondent no. 1, who was driving the offending
vehicle i.e. truck/bus car no_________
(ii) That the accident took place when the deceased was returning home from his office i.e. ___________ at
about 6.00 pm and was on his motorcycle no ______ and was hit by the offending vehicle which was being
driven rashly and negligently by respondent no. 1. The deceased was driving his motorcycle at a moderate
speed and by following the traffic norms.
(iii) That respondent no. 1 while driving the offending vehicle did not observe the rules of road and hit the
deceased from behind mercilessly.
(iv) That respondent no. 1 is principally liable for compensation to the petitioners and respondent no. 2 is
vicariously liable for the same.
(v) That respondent no. 3 is liable as insurer of the offending vehicle.
(vi) That all the respondents are jointly and severally liable to pay compensation to the petitioners.
PRAYER
It is, therefore, prayed as under:
(i) An award for compensation for a sum of Rs. __________ may be made in favour of the petitioners and
against the respondents.
(ii) That an interim award of “no fault liability” may also be made as per the provisions contained in section
140, Motor Vehicles Act in favour of the petitioners and against the respondents.
Date _______ Petitioners Through Counsel
Place _______ Counsel
Verification
Verified at _______ on ______ date, that the contents of above petition are true and correct to the best of our
knowledge, belief and information
Petitioners
Specimen No. II
DRAFT PETITION FOR COMPENSATION IN CASE OF BODILY INJURY
IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL
Claim Application No. _______/20__

Page 7 of 8
Application under section 166 of the Motor Vehicles Act, 1988 for grant of compensation.
Sir,
1. Name and father's name of the person Name and father's name of the petitioner
injured (husband's name in case of is to be mentioned
married women and widow)
2. Full address of the injured Address of the petitioner is to be

mentioned here
3. Age of the person injured Age of the petitioner
4. Occupation of the person injured Occupation of the petitioner
5. Name and address of the employer of Name and address of the employer of
the injured the injured is to be given and in case the
person injured is not in employment then
particulars of his business or profession
may be given
6. Monthly income of the person injured Monthly income of the petitioner from all
sources be given
7. Does the person in respect of whom Income tax details may be furnished
compensation is claimed pay income
tax? If so, state the amount of income
tax (to be supported by the documents)
8. Place, date and time of accident Place, date and time of accident are to
be mentioned
9. Name and address of the police station Name and address of the police station
in whose jurisdiction the accident took in whose jurisdiction the accident took
place or was registered place or FIR was registered may be
mentioned
10. Was the person in respect of whom In case the petitioner was traveling in the
compensation is claimed traveling by the vehicle then the details of the same may
vehicle involved in the accident? If so be furnished
give the name and place of starting the
journey and destination
11. Nature of injuries sustained Complete details of the injuries

sustained by petitioner may be
mentioned
12. Name and address of the medical All details of the hospital etc in which the
officer/ practitioner, if any who attended petitioner was medically treated may be
on the injuries mentioned
14. Registration number and type of vehicle Registration number of the offending
involved in accident vehicle may be mentioned alongwith
type of vehicle as for example truck, bus,
car etc
15. Name of the owner of the offending Name and address of the owner of the
vehicle offending vehicle as mentioned for
respondent no. 2 may be given
Page 8 of 8
16. Name of driver of the offending vehicle Name of the driver as given for
respondent no. 1 may be mentioned
17. Name and address of the insurer of the Name and address of the insurer of the
vehicle vehicle may be mentioned and details of
the insurance, if available may be given
in this column
18. Has any claim been lodged with the In any case any claim is lodged with the
owner/insurer if so, with what result owner/insurer before filing claim petition,
the details of the same nay be
mentioned in this column
19. Name and Address of the applicant Complete Name and Address of the
petitioner may be mentioned in this
column and in case the petition is
presented by some other person then
the Name and address of the other
person may be mentioned
20. Amount of compensation claimed Amount of compensation may be

mentioned
21. Any other information that may be

necessary and helpful in the disposal of
the case
(i) That the Petitioner on the date of the accident left his house at around ________ time to go to his place of
work, i.e., ________ when he was crossing the road on the zebra lane, the truck, driven by respondent no.
1 and owned by respondent no. 2 hit the petitioner from behind and the petitioner sustained serious injuries
because of the said accident.
(ii) That the offending vehicle was being driven by respondent no. 1 negligently and with high speed without
observing the rules of the road and respondent no. 1 was solely responsible for causing the accident.
(iii) That respondent no. 1 is principally liable being the driver of the vehicle and respondent no. 2 is vicariously
liable being owner of the vehicle and respondent no. 3 is liable being insurer of the vehicle.
(iv) That all the respondents are jointly and severally liable to pay compensation to the petitioners.
PRAYER
It is, therefore, prayed that an award for a sum of Rs. ________ may be made in favour of the petitioner and against
the respondents.
Date _______
Place _______ Petitioner Through Counsel
Verification
Verified at ________ on this ________ date, that the contents of the above petition are true and correct to the best
of my knowledge, belief and information.
Petitioner
End of Document
14.1 Introduction
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER XIV AFFIDAVITS
CHAPTER XIV AFFIDAVITS
14.1 Introduction
Affidavit means a solemn declaration of a statement made on oath.
“An affidavit is an oath in writing signed by the party deposing, sworn before and attested by him who hath the
authority to administer the same.”1
An affidavit is a written statement in the name of a person called the deponent by whom it is voluntarily signed and
sworn to or affirmed.
“Affidavit” shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead
of swearing. (General Clauses Act, section 3(3))
Affidavit is a self declaring written statement or a document which is sworn and affirmed before an authority who
has the power to administer an oath. The person who makes the affidavit is called a deponent/affiant. The deponent
must swear or affirm the contents of the affidavit as true and correct before the authority administering the oath.
Affidavit should contain only the information/declaration pertaining to which the deponent/affiant has personal
knowledge. Any hearsay information or information which is not correct cannot be included in an affidavit. When the
deponent deposes on the basis of information received from others, he must clearly mention so by using specific
words like “I am informed”.
Affidavit is treated as “Evidence” within the meaning of section 3 of the Evidence Act.
Affidavits are required to be sworn in by the parties not only in court proceedings but for numerous other purposes
also, e.g., to change one’s own name/surname, to obtain a birth certificate, to banks while applying for loans,
admission to university, driving licence, passport etc.
If the court permits any fact to be proved by affidavit, there is a duty enjoined upon the court to permit the cross-
examination of such deponent where any party bonafide desires production of witnesses for such cross-
examination.2
The Oaths Act, 1969 under section 3 provides for administration of oaths.
Section 3. Power to administer oaths.—
(1) The following courts and persons shall have power to administer, by themselves, or subject to the
provisions of sub-section (2) of section 6, by an officer empowered by them in this behalf, oaths and
affirmations in discharge of the duties imposed or in exercise of the powers conferred upon them by law,
namely:—
(a) all courts and persons having by law or consent of parties authority to receive evidence;
(b) the commanding officer of any military, naval, or air force station or ship occupied by the Armed Forces
of the Union, provided that the oath or affirmation is administered within the limits of the station.
Page 2 of 2
14.1 Introduction
(2) Without prejudice to the powers conferred by sub-section (1) or by or under any other law for the time
being in force, any court, Judge, Magistrate or person may administer oaths and affirmations for the
purpose of affidavits, if empowered in this behalf—
(a) by the High Court, in respect of affidavits for the purpose of judicial proceedings, or
(b) by the State Government, in respect of other affidavits.
1 Aiyar Concise Law Dictionary 2003.

2 Resources International (Regd. Partnership Firm) v Ana Bertha Do Rego E Fernandes, 2014 (2) MLJ 164.
End of Document
14.2 Affidavits under the Code of Civil Procedure
Dr Medha Kolhatkar

Section 139 of Civil Procedure Code enumerates as to who can administer oath to the affiant. Only when the
authorities as specified herein below administer the oath, the affidavit will be valid and legal.
Section 139 of the Code of Civil Procedure, 1908 lays down as to who can administer oath.
In the case of any affidavit under this Code—
(a) any Court or Magistrate, or

(aa) any notary appointed under the Notaries Act, 1952 (53 of 1952); or
(b) any officer or other person whom a High Court may appoint in this behalf, or
(c) any officer appointed by any other Court which the State Government has generally or specially
empowered in this behalf, may administer the oath to the deponent.
Order XIX of the Code of Civil Procedure, 1908 lays down the provisions as to what can be proved by an affidavit.
Order XIX, which deals with affidavits states:
1. Power to order any point to be proved by affidavit—
Any court may at any time, for sufficient reason, order that any particulars fact or facts may be proved by affidavit, or that
the affidavit of any witness may be read at the hearing or such conditions as the court thinks reasonable.
Provided that where it appears to the court that either party bona fide desires the production of a witness for cross
examination & that such witness can be produced, an order shall not be made authorising the evidence of such witness to
be given by affidavit.
2. Power to order attendance of deponent for cross-examination
(1) Upon any application, evidence may be given by affidavit but the court may, at the instance of either party,
order the attendance for cross examination of the deponent.
(2) Such attendance shall be in court unless the deponent is exempted from personal appearance in the court
or the court otherwise directs.
3. Matters to which affidavit shall be confined—

Page 2 of 2
(1) Affidavit shall be confined to such facts as the deponent is able to his own knowledge to prove, except on
interlocutory applications on which statements of his belief may be admitted provided that the grounds
thereof are stated.
(2) The costs of every affidavit, which shall unnecessarily set forth matters of hearsay or argumentative matter,
or copies of extracts from documents, shall (unless the court otherwise directs) be paid by the party filing
the same.
When affidavit is filed in reply to the affidavit filed by the applicant, it is called as counter affidavit.
Section 26(2) read with O VI rule 15(4) of the Code of Civil Procedure (as amended by the Act of 1999 w.e.f. 1-7-
2002) provides that an affidavit in support of the factual base of the case would have to be filed along with the
plaint. A plaint will not be entertained without an affidavit in proof of facts stated in the plaint. A party becomes
bound by the contents of his affidavit.
Affidavit fixes an additional responsibility on a deponent about the truth of facts stated. A fresh affidavit is required
on amendment. Affidavit so filed, however, would not be evidence for the purpose of the trial.3
3 Salem Advocate Bar Association v UOI, AIR 2005 SC 3353 (3357).
End of Document
14.3 Affidavits under Criminal Procedure Code
Dr Medha Kolhatkar
14.3 Affidavits under Criminal Procedure Code

Just like civil proceedings, evidence can be given in the form of an affidavit even in case of criminal trials. The
evidence which is of a formal character and which does not require any further detail enquiry can be proved with the
help of an affidavit.
As per Section 296, the Evidence of formal character on affidavit
(1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may,
subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and
examine any such person as to the facts contained in his affidavit.
Section 297 enumerates the authorities before whom affidavits may be sworn:
(1) Affidavits to be used before any Court under this Code may be sworn or affirmed before—
(a) any Judge or any Judicial or Executive Magistrate, or
(b) any Commissioner of Oaths appointed by a High Court or Court of Session, or
(c) any notary appointed under the Notaries Act, 1952 (53 of 1952).
(2) Affidavits shall be confined to, and shall state separately, such facts as the deponent is able to prove from
his own knowledge and such facts as he has reasonable ground to believe to be true, and in the latter
case, the deponent shall clearly state the grounds of such belief.
(3) The Court may order any scandalous and irrelevant matter in the affidavit to be struck out or amended.
End of Document
14.4 Effect of Swearing of a False Affidavit
Dr Medha Kolhatkar
14.4 Effect of Swearing of a False Affidavit

Swearing a false affidavit is an offence under section 191 of the Indian Penal Code, and the punishment for the
same is stated under section 193 of the Indian Penal Code. Therefore, utmost care needs to be taken while making
an affidavit.
End of Document
14.5 Drafting of an Affidavit
Dr Medha Kolhatkar
14.5 Drafting of an Affidavit
(i) Generally affidavit is drafted in First person, so it is termed as Deed Poll document.
(ii) The person who makes the affidavit is called the Affiant or Deponent.
(iii) The Affiant’s or Deponent’s full description should be made in the affidavit so that the party can be correctly
identified.
(iv) After the description of the affiant, the affidavit (which is divided in paragraphs), must state the facts clearly
pertaining to which the affiant or deponent is making the affidavit.
(v) As an affidavit is a statement made on oath, therefore, only those facts which are true and correct, and
regarding which the deponent has knowledge should be stated in the affidavit.
(vi) At the end the affidavit should be signed by the affiant/deponent. If the deponent is illiterate his thumb mark
is his valid signature.
(vii) The affidavit must be sworn or affirmed before a Magistrate or an authorised officer (refer to the relevant
legal provisions stated above).
(viii) If any clerical or typographical errors occur in the affidavit, then the same may be scratched by ink.
However, every correction should be made before swearing-in of the affidavit. The authority before whom
the affidavit has to be sworn must sign or initial all such corrections. No correction should be made once
the affidavit has been duly sworn-in or affirmed.
(ix) No affidavit having any interlineation, alteration or erasure shall be filed in Court unless the interlineation or
alteration is initialed or unless in the case of an erasure the words or figures written on the erasure are
rewritten in the margin and initialed, by the authority before which the affidavit is sworn.
(x) An affidavit after being sworn-in cannot be amended. A new affidavit incorporating any such
amendment/alteration should be filed. The new affidavit should not repeat all the facts. Only the matter
sought to be amended should be stated in such affidavit.
(xi) An affidavit for non-judicial purpose has to be duly stamped and notarised.
(xii) Affidavits are required to be drafted not only for court purposes but also for submitting the same before
quasi judicial bodies, tribunals, registrar’s office, government bodies, etc.
End of Document
14.6 Specimen
Dr Medha Kolhatkar
14.6 Specimen
Specimen No. I
AFFIDAVIT
(Filed in support of Interim Application)
I name ________Age___________ Occupation_______, R/at: ______ do hereby state on solemn affirmation as

follows:
(i) That I have filed the C.S. No. _________20/_______ for various reliefs. I have also preferred the injunction
application against the defendants.
(ii) I say that whatever is stated in the plaint and the injunction application is true and correct. For the sake of
brevity I reiterate all the contentions made by me in the temporary injunction application without repeating
the same here.
(iii) I say that great hardship, loss and injustice will be caused to me if injunction as prayed is not granted.
(iv) That whatever is stated in the temporary injunction application herein above from Paras 1 to 18 is true and
correct to the best of my knowledge, belief and information.
In witness whereof, solemnly affirmed on this day of _____20____ at ______Place.
Place______
Date______
I know the affiant
Affiant
Specimen No. II
AFFIDAVIT
(Affidavit filed in support of delay condonation application)
I name ________ Age ___________ Occupation_______, R/at: ______ do hereby state on solemn affirmation as
follows:
(i) That there is a delay of ______ number of days in filing the appeal before the _____ Hon’ble Court.
(ii) That the reason for the delay is _______, which is also stated in the delay condonation application.
Page 2 of 4
14.6 Specimen
(iii) I state that if the delay is not condoned grave injustice will be caused to me. I say that the delay caused in
preferring the present appeal is not deliberate but due to the circumstances beyond my control. No
hardship or inconvenience will be caused to the respondent if delay is condoned.
(iv) That whatever is stated hereinabove and in the application for condonation of delay is true and correct and
I have personal knowledge of the same. That no part of this affidavit is false and no material has been
concealed.
I _____ the above-named deponent do hereby solemnly affirm the same, on this ___ day of ____ 20___ at ____
place.
Place______
Date______
I know the affiant
Affiant
Specimen No. III
Affidavit in support of plaint/petition/complaint
I, (Name) ______ Residing at ______ do hereby solemnly affirm and say as follows:
(1) I say that, I am fully conversant with the facts enumerated in the present plaint/complaint/petition and
therefore, I am able to depose to the same. I have filed the present plaint/complaint/petition against ______
for seeking reliefs more particularly stated in the plaint/complaint/petition in para no. ______.
(2) I say that for the sake of brevity, I repeat and reiterate each and every statement, submissions and
contentions made in the plaint/complaint/petition are true and correct.
(3) I say that in support of the statements, submissions and contentions set out by me in the
plaint/complaint/petition I have filed documents, the contents whereof are true and correct.
(4) I say that if the reliefs as prayed for in the plaint/complaint/petition are not granted, great harm, loss, injury
and injustice will be caused to the plaintiff/ complainant/petitioner. Thus, in the circumstances, the reliefs as
prayed for may please be granted with costs.
(5) That whatever is stated hereinabove is true and correct and I have personal knowledge of the same. That
no part of this affidavit is false and no material has been concealed.
In witness whereof, solemnly affirmed on this _____ day of _____ 20 _____ at _____ place.
Place_____
Date_____
I know the affiant
Affiant
Specimen No. IV
Affidavit in support of Plaint
I, (Name) ______ Residing at ______ do hereby solemnly affirm and say as follows:
(1) I have filed the above-stated suit against _____ and I have full knowledge about the facts and
circumstances of this case as stated in the plaint and I have verified the accompanied plaint.
(2) I say that the contents of paras 1 to 3 of the plaint is a matter of record and the same is true to my
knowledge.
Page 3 of 4
14.6 Specimen
(3) I say that the contents of paras 4 to 9 of the plaint are the statements of facts supported by relevant
documents filed along with the plaint and the contents thereof are true to my knowledge and belief.
(4) I say that the contents of paras 10 to 15 of the plaint are the details of the breaches committed by the
defendant and paras 16 to 19 of the plaint are the submissions pertaining to the losses suffered by this
plaintiff. I say that the contents in the abovementioned paras are true and correct.
(5) I say that my prayer as stated in para ____ of the plaint may please be granted as grave injustice and loss
will be caused to me if the same is refused by the Hon’ble Court.
(6) I hereby affirm and verify each and every averment set out in the plaint as true and correct to the best of
my knowledge, belief and information and no material has been concealed therein.
In witness whereof, solemnly affirmed on this ____ day of ____ 20____ at _____ place.
Place_____
Date_____
I know the affiant
Affiant
Specimen No. V
Affidavit for Lost Deed of Conveyance
Or
Sale Deed
I, (Name) _____ Residing at _____ do hereby solemnly affirm and say as follows:
(1) I say that, by a deed of conveyance/sale deed dated _____ executed between Mr. _____ therein called the
Vendor of the One Part and myself as the Purchaser of the Other Part, wherein I purchased an immovable
property situated at ________ and more particularly described in the Schedule hereunder written for a
consideration of Rs. _____.
(2) I further state that, the said Deed has been duly registered at the office of the Sub-Registrar _____ at
Serial No. _____ of Book No. 1.
(3) The said Deed of Conveyance/Sale Deed has been misplaced and lost and in spite of best efforts made by
me I have not been able to trace the same.
(4) I hereby declare that I have neither deposited the said Deed as security by way of mortgage or otherwise
with anybody nor I have given the said Deed to anybody for any purpose.
(5) I have agreed to sale the property to Mr. _______ and he has agreed to buy the property from me on my
assurance that the said Deed is lost/misplaced. Therefore, I am unable to produce the said Deed for the
inspection and scrutiny by Mr. _______. He has, however, agreed to complete the purchase on the basis
of the declaration made by me.
(6) I hereby state and declare that whatever is stated hereinabove is true and correct to the best of my
knowledge, belief and information. I undertake that, if and when, the said Deed is found, I will hand it over
to the said purchaser, i.e., Mr. ________.
Schedule of the above referred Property
In witness whereof, solemnly affirmed on this _____ day of _____ 20 ____ at _____.
Place_____
Date_____
Page 4 of 4
14.6 Specimen
I know the affiant
Affiant
BEFORE ME
End of Document
Date and Time: 19 September 2021 13:04:00 IST
Job Number: 153224205
Documents (24)
2. 15.2 Important concepts under Criminal Procedure Code
3. 15.3 Criminal Complaints
4. 15.4 Bail and Anticipatory Bail
5. 15.5 Maintenance
6. 15.6 Other Applications
7. 15.7 Criminal appeals
8. 15.8 Revision
9. CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE
10. 16.1 Conveyancing
11. 16.2 Adoption
12. 16.3 Arbitration
13. 16.4 Gift
14. 16.5 Indemnity
15. 16.6 Lease
16. 16.7 Leave and Licence
17. 16.8 Mortgage
18. 16.9 Partition
19. 16.10 Partnership
20. 16.11 Power of Attorney
21. 16.12 Releases/Relinquishments
22. 16.13 Sale Deed/Deed of Conveyance
23. 16.14 Trust
24. 16.15 Will and Codicils
15.1 Introduction
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER XV DRAFTING AND PLEADING UNDER
CRIMINAL LAW
CHAPTER XV DRAFTING AND PLEADING UNDER CRIMINAL LAW
15.1 Introduction
Criminal Pleading means the statements of facts in proper form and manner regarding any act of commission or
omission of an offence punishable under the Indian Penal Code, or any other penal legislation for the time being in
force.
The procedure to deal with criminal cases is provided for in the Code of Criminal Procedure, 1973 (CrPC) and
except otherwise so provided.
Some of the significant terms from the Code of Criminal Procedure are discussed below.
End of Document
15.2 Important concepts under Criminal Procedure Code
Dr Medha Kolhatkar
CRIMINAL LAW
(1) Bailable and Non-Bailable

(2) Cognizable offence
(3) Non-Cognizable Offence
(4) Summons Case
(5) Warrant Case
(6) FIR
(7) Stages in case of cognizable offence
(8) Rights of an accused
15.2.1 Bailable and Non-Bailable
According to section 2(a) of CrPC “bailable offence means an offence which is shown as bailable in the first
schedule, or which is made bailable by any other law for the time being in force; and non bailable offence means
any other offence;”
Bailable offences are considered less serious in nature whereas non-bailable offences are more serious in nature. It
can be generally stated that bailable offences are those for which punishment is for or less than three years but
there are some exceptions to this rule. Such offences are tried by any Magistrate, e.g., being a member of unlawful
assembly etc. In non-bailable offences, all serious offences are included where the quantum of punishment is for
three years or more, e.g., murder, rape etc. In bailable offences, bail can be claimed as a right under section 436
CrPC. In non-bailable offences, bail is not a matter of right but only a privilege to be granted at the discretion of the
court after considering the facts and circumstances of the case. Section 437 of CrPC provides the conditions for
grant of bail in non-bailable offences. In case of bailable offence, if the accused produces proper surety after his
arrest and fulfills other conditions, it is binding upon the investigating officer to release him. In non-bailable offence,
the investigating officer must present the accused before the Judicial Magistrate/Judge within 24 hours of the arrest.
At that time the accused has a right to apply for the bail.
15.2.2 Cognizable Offence
As per section 2(c) of CrPC “cognizable offence means an offence for which, and cognizable case means a case in
which, a police officer may, in accordance with the first schedule or under any other law for the time being in force,
arrest without warrant;”
Cognizable offence means an offence for which a police officer may, in accordance with the first schedule or under
any other law for the time being in force, arrest without a warrant. Offences which are serious in nature are
cognizable offences, e.g., murder, dowry death, kidnapping, rape etc. If a cognizable offence has been committed,
a police officer can investigate without the Magistrate’s permission. As per section 154 of CrPC in case of
cognizable offence, the police has to receive the First Information Report (FIR) relating to cognizable offence which
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can be obtained without the Magistrate’s permission. The police on entry in the General Diary can immediately start
the investigation. An FIR sets the criminal law in motion. The Supreme Court in Lalita Kumari v Government of UP1
held that “the police must compulsorily register the FIR on receiving a complaint if the information discloses a
cognizable offence and no preliminary inquiry is permissible in such a manner.”
15.2.3 Non-Cognizable Offence
Section 2(l) of CrPC defines non-cognizable offence as an offence for which, and non-cognizable case means a
case in which, a police officer has no authority to arrest without warrant.
A non-cognizable offence or non-cognizable case has been defined in the CrPC as an offence for which the police
have no authority to arrest without warrant. Non-cognizable offences are less serious in nature, e.g., defamation,
forgery, cheating etc. As per section 155 CrPC, if a police receives information regarding commission of a non-
cognizable offence, he is supposed to enter the same in the Station Diary and refer the informant to approach the
concerned Magistrate. It is important for the police officer to obtain the permission from the Magistrate to start
investigation for non-cognizable offence.
15.2.4 Summons Case
Section 2(w) of CrPC defines summons case as a case relating to an offence and not being a warrant case.
15.2.5 Warrant Case
Section 2(x) of CrPC defines, “warrant case means a case relating to an offence punishable with death,
imprisonment for life or imprisonment for a term exceeding two years.”
15.2.5.1 Procedure for Summons Case and Warrant Case
The Procedure for Summons Case is simpler and speedy. The procedure for warrant case is complex and lengthy.
In warrant cases, formal charges are framed under sections 240 and 246 of CrPC. In Summons Cases, there is no
necessity to frame formal charges against an accused (as per section 251 CrPC), instead only the substance of the
allegation is stated. In warrant case the accused gets more than one opportunity to cross-examine the prosecution
witnesses while in summons case, he gets only one opportunity to cross-examine the prosecution witnesses. The
Magistrate is empowered to convert a summons case into a warrant case but a warrant case cannot be converted
into a summons case. A trial in a warrant case commences either by filing FIR in police station or by filing it before
Magistrate. A warrant trial can be classified into (i) cases instituted on the police report and (ii) cases instituted
otherwise than on police report. However, there is no such categorization for summons cases. In summons trial, an
accused can plead guilty through post (i.e., without being physically present in the court) if he is served summons
for a petty offence. However, this is not possible in warrant cases. A complainant can withdraw his complaint with
the permission of the court in summons trial while he cannot do so in warrant trial.
15.2.6 FIR
When information is given to police by any person, in respect of commission of a cognizable offence then such
information is termed as First Information Report or FIR. FIR in a criminal case sets the criminal law in motion. It is
an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence at the time of
trial. FIR in respect of some cognizable offences must be lodged as soon as possible. The information given by the
informant shall be definite and must not be vague to start investigation.
FIR acts as a tool on which the police authorities base and commence their investigations. Section 154 CrPC states
the provision regarding FIR. As per section 154(1), an FIR can be registered in cognizable offences only. In
cognizable offences, the police officer can arrest an accused without a warrant because of the serious nature of the
offences.
Who Can Lodge FIR:- Any person who has information about the commission of a cognizable offence can lodge an
FIR. It is not necessary for the person lodging the FIR to be an eyewitness or that he/she should be the victim. A
police officer can lodge an FIR if he has knowledge about the commission of cognizable offence.
15.2.7 Stages in Case of Cognizable Offence

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Following are the stages in cognizable offence:—
(i) FIR
(ii) Recording of evidence of witnesses
(iii) Discoveries made
(iv) Punchanama
(v) Filing of charge sheet to the court
15.2.8 Rights of an Accused
(1) Under the Indian Penal Code, an accused is innocent unless his guilt is proved beyond reasonable doubt.
(2) Any person who is arrested should be informed about the grounds of arrest, and should be produced
before a magistrate within 24 hours of his arrest.
(3) The accused has a right to cross-examine the prosecution witnesses; however, an accused cannot be
cross-examined.
(4) An accused has the right to be represented through a lawyer to defend himself and where he cannot afford
the fees of a lawyer, the state is duty bound to provide him with a counsel.
(5) The accused has a right to get himself medically examined.
(6) Last but not the least, the accused is entitled to an expeditious and fair trial.
1 Lalita Kumari v Government of UP, (2014) 2 SCC 1.
End of Document
15.3 Criminal Complaints
Dr Medha Kolhatkar
CRIMINAL LAW

Section 2(d) of CrPC defines the word complaint. It “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 does not include a police report.
The explanation added to section 2(d) states that a report made by a 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
by whom such report is made shall be deemed to be the complainant.”
15.3.1 Forms of Criminal Complaint
Criminal complaints can be broadly divided into two types namely public and private. In public complaint the state is
the aggrieved party, because it is the primary duty of the state to safeguard the person and property of every citizen
and therefore the state takes up the responsibility of prosecuting the offender.
In private complaints, the victim or where the victim is no more, his legal heirs become the complainants. It is
pertinent to note that the state is always the de facto complainant. Thus, the burden of proving the commission of
an offence rests on the state. The state is represented through Police station house in charge and the Public
Prosecutor. The Respondent is termed as accused in criminal complaint.
Dismissal of Complaint: As per section 203, if, after considering the statements on oath (if any) of the complainant
and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of the
opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he
shall briefly record his reasons for doing so.
In exercising his discretion under section 203, the Magistrate should not allow himself to be influenced by
consideration of the motive by which the complainant may have been actuated in moving in the matter; nor by any
other consideration outside the facts which are adduced by the complainant in support of his complaint.2
Withdrawal of Complaint:- In a summons case the complainant can withdraw complaint with the permission of the
court (Section 257 CrPC).
15.3.2 Drafting of Criminal Complaints
A complaint under the Code of Criminal Procedure may be made orally or in writing.3
No form of complaint has been prescribed in the Code. The requisites of a complaint are:—
(i) an oral or written allegation;

(ii) That person known or unknown has committed an offence;
(iii) It must be made to a magistrate so that he can take action regarding the same.4
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15.3.3 Complaint for Criminal Trespass
The offence of criminal trespass is laid down under section 441 of the Indian Penal Code:
441. Criminal trespass–Whoever enters into or upon property in the possession of another with intent to commit an
offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon
such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to
commit an offence, is said to commit “criminal trespass”.
The ingredients of section 441 are as follows:—
(1) Entry into or upon property in the possession of another

(2) If such entry is lawful, then unlawfully remaining upon such property
(3) Such entry or unlawful remaining must be with intent—
(a) to commit an offence or

(b) to intimidate, insult or annoy any person in possession of the property.
From the above ingredients it can be seen that the original entry may be lawful, but if the person entering remains
on the property with the intent specified in the section he commits trespass.
The offence can be committed only against a person who is in actual physical possession of the property in
question. However, it is pertinent to note that the offence may be committed even when the person in possession is
at the time of trespass not present on the property.
The expression “property” here implies immovable property.
15.3.3.1 Specimen
Specimen No. I
Complaint for Criminal Trespass
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS AT _________
Cri. C. No._________/ 20____

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Complaint for the offence of criminal trespass, hurt and threatening
The complainant above-named states most respectfully as under:—
(1) That the complainant is the “Factory Manager” of ________ Co. Pvt. Ltd. The _______ company is having
its manufacturing plant at _______ industrial area. The company manufactures various electronic goods
and components.
(2) That all the accused above-named are the workers in the said factory. That on ______ date, the accused
were sitting idle and were not doing any of the job/work assigned to them. The senior supervisor repeatedly
told them to stop chit-chatting, not to sit idle and to do their work. The Senior Supervisor Mr. ________
then reported the matter to the Factory Manager, i.e., the complainant.
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(3) The complainant submits that the complainant went to the shop floor around _______ and told the workers,
i.e., the accused herein that as they are not doing their work and are sitting idle, he would make deductions
in their salary.
(4) That the accused no. 1 and no. 2 thereafter started arguing with the complainant. The complainant told all
the accused that for the last three days they had not done any work so the employer would not pay them
for the same and left the shop floor at _________.
(5) The complainant submits that at around 6.30 in the evening on the same day, i.e., on ______ date, all the
accused barged inside the cabin of this complainant and started abusing this complainant and threatened
him of dire consequences if he deducted their salary. The complainant called upon all the accused not to
use bad language and asked them to leave his cabin immediately. On this the accused no. 2 caught the
complainant by collar and told him to keep shut and that the complainant should pay accused the salary
without any deductions.
(6) The complainant submits that the accused no. 1 was carrying a dagger. He pointed the dagger to the
complainant and told him that he would cut the complainant into pieces if he took any action against any of
the accused. The complainant was shocked, horrified and was numb due to the terrorizing attack by the
accused. The secretary of this complainant by name _______ informed the other officers and workers
about the said attack.
(7) The complainant submits that only when other workers and officers came to the complainant’s cabin that
these accused left the cabin.
(8) That the complainant submits that none of the accused had obtained any permission at the gate to enter
the factory premises. Their shift was over at 4 O’clock in the afternoon. Thus the entry of the accused into
the factory premises and inside the cabin of this complainant is unlawful and unauthorised. Thus, the
accused have committed the offence of criminal trespass among other offences punishable under the
Indian Penal Code.
(9) That the offence has been committed within the territorial jurisdiction of this Hon’ble Court and hence, this
Hon’ble Court has territorial jurisdiction to try and entertain the present complaint.
(10) The cause of action arose on ______ date when the accused committed criminal trespass and other
offences. Hence, the complaint filed today is well within the limitation.
(11) That the complainant therefore prays that all the accused be dealt with according to the law and such other
orders may please be passed as deemed fit and appropriate in the interest of justice.
Place_______ Complainant
Date_______ Advocate for Complainant
15.3.4 Complaint for the Offence of Bigamy
This section is not applicable to Mohammedan males; however, the section is applicable to Mohammedan females
and to Hindus, Christians and Parsis of either sex.
Section 494 declares bigamy as an offence. A person is said to have committed the offence of bigamy when—
(1) A person has wife or husband living at the time of solemnisation of the second marriage (subject to the
exceptions enumerated in section 494).
(2) The second marriage being void by reason of subsistence of first marriage.
Section 494 of Indian Penal Code is as follows—
494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case
in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
15.3.5 Exception
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This section does not extend to any person whose marriage with such husband or wife has been declared void by a
court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or
wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such
person for the space of seven years, and shall not have been heard of by such person as being alive within that
time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the
person with whom such marriage is contracted of the real state of facts so far as the same are within his or her
knowledge.
Specimen No. II
Criminal Complaint for Bigamy
IN THE COURT OF JUDICIAL MAGISTRATE, FIRST CLASS
Place__At.__(Dist)_____
Criminal Complaint No. _______/20___
Complaint under section 494 of IPC, read with section 34 of IPC.
The complainant above-named most humbly submits as follows:—
(1) The complainant herein is the legally wedded wife of the accused no. 1 and the accused no. 2 is the
second wife of the accused no. 1.
(2) That the complainant states that the marriage between the complainant and the accused was solemnised
on ______ date according to Hindu Vedic rites and ceremonies at _________ (place).
(3) That the complainant states that the complainant and the accused co-habited together only for 3 months
thereafter the accused under the false and flimsy grounds started avoiding the company of the
complainant.
(4) The complainant states that this complainant is a government servant and was transferred to _____
(Place) on or about _______date. Thereafter, she joined her new posting at_______.
(5) The complainant submits that the accused had assured this complainant that he would travel to the
complainant’s place which is only 3 hours from their matrimonial home so that they would be together
during the week-ends.
(6) The complainant submits that till date the accused has not visited the complainant even once. Whenever
this complainant came to her matrimonial home to be with the accused no. 1, the accused no. 1would
immediately leave the house and avoid the company of this complainant.
(7) That the complainant thereafter from relatives and family friends learnt that the accused is seen in the town
with the accused no. 2 and to whom accused no. 1 wanted to marry but as the accused no. 2 is from a
different caste, the accused no. 1’s parents did not allow him to marry accused no. 2 and therefore the
accused no. 1 married this complainant.
(8) The complainant states that the accused no. 1 had started staying with accused no. 2 at the residence of
accused no. 2 as husband and wife from ______ date. The complainant was also informed that the
accused no. 1 and the accused no. 2 are planning to get married soon.
(9) The complainant sates that the accused no. 1 on or about _____ date informed the complainant that he
intends to dissolve the marital tie between the complainant and the accused no. 1 by filing a petition for
divorce by mutual consent as he intends to marry accused no. 2.
(10) The complainant states that she was in a state of shock when she learnt that the accused no. 1 has
married accused no. 2 on______date at ________ place. More than 50 people attended the said marriage.
(11) The complainant submits that the marriage between the accused no. 1 and 2 was solemnised as per Hindu
Vedic rites and ceremonies. The complainant states that the marital tie between the accused no. 1 and this
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complainant has not been dissolved by any court order. The complainant states that, the accused no. 1 is
guilty of the offence of bigamy. The complainant states that the accused no. 1 and 2 have obtained
marriage certificate from ______ office. The marriage certificate and the photographs of the marriage
solemnised between the accused no. 1 and 2 are annexed herewith.
(12) That the second marriage was solemnised by the accused on _______date and therefore this complaint
filed today is well within the period of limitation.
(13) That the offence has been committed within local limits of the jurisdiction of this court hence this Hon’ble
court has jurisdiction to try and decide this complaint.
(14) That appropriate court fee stamp is paid herewith.
(15) It is therefore most humbly prayed that the accused no. 1 & 2 be tried for the offence of bigamy punishable
under section 494 read with section 34 IPC and be punished as per law.
Place______ Complainant
Date______ Advocate for Complainant
15.3.6 Complaint for the Offence of Defamation
Right to reputation is an inherent right of every person. All statements made orally or in writing or by signs or visible
representation which imputes the standing, reputation of a person and are made with the intention of harming or
with the knowledge or reason to believe that it will harm the reputation of such person, then the person making or
publicising such statements is said to have committed the offence of defamation.
“Publication” of the defamatory matter means that there must be communication of the same to some other person,
than the person about whom the remarks are made. If the derogatory remarks or defamatory matter is
communicated, only to the person defamed it will not amount to publication of the statement.
Sometimes the defamatory statement may not directly refer to the complainant but he is defamed in an indirect
manner. This is termed as innuendo. The complainant must prove how the defamatory statements are addressed to
him.
The offence of defamation is defined under section 499 of Indian Penal Code as under:
499. Whoever by words, either spoken or intended to be read, or by signs or by visible representations, makes or publishes
any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will
harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
Explanation 1:—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the
reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2:—It may amount to defamation to make an imputation concerning a company or an association or collection
of persons as such.
Explanation 3:—An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4:—No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the
estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in
respect of his caste or his calling, or lowers the credit of that person, or causes it to be believed that the body of that person
is in a loathsome state, or in a state generally considered as disgraceful.
Specimen No. III

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Complaint for the offence of Defamation
IN THE COURT OF JUDICIAL MAGISTARTE FIRST CLASS, (PLACE)
Criminal Case No. ______of _____
Complaint for the offence of defamation
The complainant above-named submits as under:—
(1) The complainant states that the complainant is working as Principal of ________school and is a
respectable member of the society residing at ________. The complainant is also the Managing Trustee of
________ society which runs the ______ school. The complainant states that he enjoys a certain degree of
standing, status and reputation in the society.
(2) The complainant submits that one Miss._________ joined the complainant’s school on _______ date as a
teacher. In a short span of time Miss.________ due to her job commitment and talent impressed one and
all. This complainant as head of the institution at a school function publicly appreciated Miss._______
hoping that it would further encourage Miss.________ to continue to work towards excellence and it would
also motivate other school teachers to work with commitment and efficiency.
(3) That the accused Mr._______ thereafter started spreading the rumor that the complainant is having an
affair with Miss._______ and that is the reason Miss._______ who is so junior and inexperienced is
appreciated publicly by the complainant.
In fact the accused is very jealous and upset as he was also competing with the complainant for the
post of Principal and finally this complainant was selected and not the accused for the post of Principal
of _____ the school.
(4) That on ______ date after the open house meeting with the parents, when the parents were leaving the
school premises the accused distributed hand-outs to the parents. The accused has charged this
complainant as a womanizer and a corrupt person and has made other false allegations in the said hand-
outs. At the end of the hand-out it was printed “Do you want such a Principal/ Teacher for your ward?” The
copy of the said hand-out is annexed herewith and the same may please be read as part and parcel of this
complaint.
(5) The complainant submits that the accused out of jealousy and frustration has leveled these highly
defamatory statements against the complainant. The complainant submits that all the allegations made by
the accused in the said hand-outs are false, baseless and made out of malice and without any proof.
(6) The complainant submits that all this has caused great harm to the standing and reputation of this
complainant and has further lowered his image in the eyes of right thinking members of the society. The
allegation that the complainant is having an extra-marital affair with Miss.______ has definitely lowered the
public image of this complainant. His colleagues, relatives are now trying to avoid his company.
(7) That the accused has done all this only with the intention to defame the complainant and thereby has
brought this complainant to disrepute and discredit. All this has grossly maligned the image of this
complainant in the eyes of the staff of the school, the student body, the parents of these students, relatives
and friends.
(8) That all the imputations alleged in the said hand-out are false, highly defamatory and objectionable and
accused has intentionally done the same out of jealousy, ill will and hatred for the complainant. One hand-
out is annexed herewith and is marked as Exhibit ‘A’.
(9) That the accused by printing and circulating the said hand-outs has committed the offence of defamation
punishable under section 500 and section 501 of the Indian Penal Code.
(10) The complainant submits that the offence has been committed within local limits of the jurisdiction of this
court; hence, this Hon’ble Court has jurisdiction to try and decide this complaint.
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(11) The defamatory matter, i.e., the hand-outs were circulated on ______ date; hence, the present complaint is
well within the period of limitation.
(12) The appropriate court fee stamp is paid herewith.
(13) That the complainant, therefore, prays that the Hon’ble Court may be pleased to issue necessary process
against the accused and the accused be dealt with according to law.
15.3.7 Complaint for the offence of cheating (Section 420 of Indian Penal Code)
For an offence under this section, it must be proved that the complainant parted with his property acting on a
representation which was false to the knowledge of the accused and that the accused had a dishonest intention
from the outset.
Section 420 of Indian Penal Code lays down as under:
420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the
person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable
security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be
punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to
fine.
In Sonbhandra Coke Products v State of UP5 it was held that offence of cheating can be made out only if it has
been shown that the damage or harm has been caused to the person so deceived.
Specimen No. IV
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS ________
AT (PLACE)__________
Criminal Case No._______/20___
Complaint for the offence of cheating under section 420 of IPC
The complainant above-named most respectfully submits as follows:—
(1) That the complainant is a small trader in garments having his shop at _______. The complainant is the
Proprietor of _________ and carries on the business under the said proprietorship at _____________.
(2) That the complainant states that in the month of _______ the accused herein came to the shop of this
complainant and expressed his desire to buy garments from the complainant. The accused informed the
complainant that he is having his cloth shop at _______ village. The accused told the complainant that he
also purchases his stock of garments from the same wholesale trader in Surat by name _______.
(3) The accused further told this complainant that as the wife of the accused was seriously ill and his daughter
is busy preparing for board exams, this festive season he could not go to Surat to make any purchases and
therefore he is buying from the complainant.
(4) That the complainant submits that the accused also phoned Mr._______ (partner) wholesale trader of
________ and after greeting him over the phone called upon this complainant to talk to Mr._______. That
Mr._______ is a close business associate of this complainant. and thus the complainant believed the
accused and agreed to sell him certain quantities of garments.
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(5) The accused purchased garments from the complainant on ______ date. The total price of the garments
purchased is Rs._________/-. That out of the said amount the accused gave Rs._________/- in cash and
he requested the complainant to give him two days time to make the balance payment.
(6) That the complainant submits that the complainant had no reason to disbelieve the bona fides of the
accused and thus agreed to give the goods of Rs. _________/- on credit. The accused signed on the copy
of the bill book, thereby acknowledging receipt of garments worth Rs.______/- and also gave in writing that
he will pay in two days time.
(7) That the complainant submits that the accused also gave his address, his contact number and also his
business card to this complainant. The accused also invited the complainant to his shop at ______.
(8) That the accused again on _______ date came to the complainant’s shop and again made purchases
worth Rs._____/-. This time again the accused paid Rs. ___ in cash and assured that he will clear both the
bills, i.e., of Rs. _____ and of Rs. ______ dated _______ and ______by _________date.
(9) The complainant submits that the accused never came back to the complainant’s shop to make any
payment. The complainant then tried to contact the accused on the phone number given by him, but it
turned out to be the number of some other person and not of the accused.
(10) That the complainant, therefore, along with his sales staff Mr._____, went to personally meet the accused
on the address given by him. The landlady there informed that Mr._______ has left the rented premises six
months back and has cheated many people like this and complained that even she has been duped of
three months’ rent.
(11) That the complainant on further enquiries learnt that the accused is working as sales staff in _______ shop
and when the complainant met him there the accused told the complainant that the garments sold by the
complainant are defective and not up to the mark and he would make only part payment. However, no
payment is made so far. The complainant states that the garments sold to the accused were without any
defect and were from the fresh stock. The accused only to avoid payment is making these false
allegations.
(12) That the complainant submits that the accused has cheated this complainant and is liable to be tried for the
offence of cheating. The garments supplied by the complainant were not defective or old stock as alleged
or otherwise and the complainant has all the receipts of the purchases made. The accused has
fraudulently taken from the complainant garments worth Rs. _______/- and has not paid for the same and
has refused to pay for the same.
(13) That the accused made false representation that he owns and runs a garment shop at _______ place, he
made false representation that he makes his purchases from ________ (a wholesale dealer), i.e., the
same source from where the complainant has been purchasing. It is submitted that the accused had no
honest intention to pay the complainant for the purchases made by him. The accused thus acted
fraudulently and dishonestly and induced this complainant to part away with all the said garments on _____
date and on _____ date and thus has cheated the complainant.
(14) That the transaction took place and offence has been committed within the territorial jurisdiction of this
Hon’ble Court and hence this Hon’ble Court has territorial jurisdiction to try and entertain the present
complaint.
(15) That the cause of action arose on ______ date when the accused failed to pay the amount of Rs. ______/-
to the complainant and hence the complaint filed today is well within the period of limitation.
(16) It is, therefore, most humbly prayed that:-
i) An arrest warrant be issued against the accused and the accused be dealt with according to law
ii) Order and direct the accused to pay compensation under section 357 of Criminal Procedure Code
1973 in the end of justice
iii) Any other order in the interest of justice may kindly be passed.

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Specimen No. V
BEFORE THE HON’BLE JUDICIAL MAGISTRATE FIRST CLASS______
AT_______
Criminal Complaint No. ______/2019
Criminal Complaint under section 420 of Indian Penal Code and under section 8, 13 of Maharashtra Ownership of
Flats Act, 1963
The Complainants abovementioned state and submit as under:
1. The complainant states that accused had floated a scheme / project of residential flats at Village_____, at
Survey No. _____, Hissa No. ____ under the name and style _____, and consisting of_____ units. The
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complainants submit that based on the representations made by the accused, in various advertisements
and the brochures printed and published by accused that the accused is developing the said project with
the intention to construct 1 and 2 BHK luxury flats, these complainants decided to purchase a flat from the
accused.
2. The complainants state that on____ date, the complainants have booked a 2 BHK apartment bearing flat
No.___, Wing ____, total area admeasuring about____ sq. ft.; for the same the complainant has paid an
amount of Rs._____/- being the booking amount. Thereafter, the complainant also paid an amount of
Rs._____/- at the time of agreement and towards stamp duty and registration.
3. Following are the details of the payments made by the complainant to the accused:-
a) Rs. _____/- Cheque bearing _____ drawn on _____ Bank dated._____

b) Rs. _____/- towards ____% consideration amount before agreement, paid through Bank RTGS on
_____ Bank dated _____
c) Rs._____/- through RTGS from____Bank on dated ____ towards Stamp Duty and Registration
charges.
d) Rs._____/- Through RTGS from ____ Bank on dated _____ towards VAT and Service Tax
______________________
Total Rs. _____/-
4. The complainants further state and submit that, accordingly agreement to sale was executed with the
accused on _____ date at Haveli No.___, at Sr. No._____. At the time of the agreement to sale, the
accused had assured that the accused would hand over the possession of the said flat to the complainant
within ______ months from the date of the agreement, i.e., on or before _____ date.
5. The complainants state that it was specifically agreed by and between the accused and the complainants
that the mode of payment for total consideration amount would be as per the schedule mentioned in the
agreement. Accordingly, the complainant obtained loan from ______ bank and also paid Rs. ______ as
processing fees for the loan and for property insurance. The accused are well aware of these facts.
6. The complainants state and submit that the said loan was sanctioned in the name of complainants by
______ bank. Further the accused on ______ date furnished commencement certificate in respect of the
said project stating that the building in which complainant has booked a flat has been completed till plinth
and further demanded an amount of Rs. _____/-. The complainant after completing formalities with their
banker paid an amount of Rs. _____/-, the said amount has been paid through Bank Transfer on ______
date by NEFT UTR No. ______ to the accused. It is pertinent to note that the complainant has paid an
amount of Rs. ______/- as interest on the bank loan obtained by them.
7. The complainants state and submit that they have invested in the said project from their income/savings
earned from hard labour. The complainants state that the accused have cheated the complainants and the
complainants now know that the accused’s tall claims about the project were only empty promises. The
complainants state that the accused have stopped the construction work from ____ date and the whole
project is stuck at plinth level, from ______ date. The complainant repeatedly visited the construction site
only to see that the construction has been completely stopped.
8. The complainants state and submit that since last 1 year no progress beyond plinth level has been made
by the accused. The complainant asked for the cancellation of agreement and refund of the amount
through letter dated______. However, the accused promised that everything is in control and work will
commence in few weeks. The complainants state that contrary to the assurance, the construction work was
not commenced by the accused nor the amount was refunded to the complainants. Hence, on ______ date
the complainants sent email and cancelled the agreement and asked the refund of the amount from
accused via email.
9. The complainants state that these complainants have through mail dated______ and through notice dated
______ have demanded the amount of refund which they have paid at the time of booking as well as all the
amount paid towards all the expenses of stamp duty, registration, bank loan processing fee, property
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insurance and compensation for deficiency in services, for mental and physical pain, agony and
harassment etc. totalling to Rs. ______.
10. The complainants state and submit that despite the email and notice sent to the accused, the accused
have not bothered to resolve the issue amicably nor have refunded any amount to these complainants. The
accused with dishonest intention to cheat these complainants have extracted huge amounts from time to
time from the complainants.
11. The complainants state and submit that as the accused are not responding to the repeated requests and
demands made by the complainants, the complainants are left with no alternative but to file the present
complaint before this Hon’ble Court.
12. That the transaction took place and offence has been committed within the territorial jurisdiction of this
Hon’ble Court and hence this Hon’ble Court has territorial jurisdiction to entertain, try and decide the
present complaint.
13. That the cause of action arose on _____ date when the Accused finally failed to repay the consideration
amount paid by the Complainants, hence the present complaint filed is well within the limitation. Otherwise
also, the act of the accused under the agreement is continuous one therefore the present complaint filed is
well within the limitation.
14. It is therefore prayed that,
a. The accused may be dealt and punished according to the provisions of law.
b. The matter may kindly be sent to the ______ Police Station for thorough investigation under section
156(3) with the direction to investigate the matter in detail and the report in that regard may kindly be
called.
In alternate to that,
c. The issue process order may kindly be passed against the accused.
d. Accused shall refund a total amount of Rs. ______/- by way of fine and compensation under section 357 of
CrPC for the payment made by complainant, i.e., Rs. ______/- along with interest at____% per annum
from the date of receipt of the aforementioned amount along with the monthly EMI the complainant is
paying, and the mental and physical harassment to the complainant.
e. Any other order in the interest of justice may kindly be passed by this Hon’ble Court.
Place______ Sd. Complainants
Date______ Sd. Advocate for Complainant
15.3.8 Complaint for Dishonour of Cheque
Section 138 of Negotiable Instrument Act lays down as under:
138. Dishonour of cheque for insufficiency, etc., of funds in the account.— Where any cheque drawn by a person on
an account maintained by him with a banker for payment of any amount of money to another person from out of that
account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of
the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the
amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have
committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a
term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless—
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn
or within the period of its validity, whichever is earlier;
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(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the
payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within
thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the
case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.—For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.
The ingredients required to invoke section 138 are as follows:
(1) A person must have drawn a cheque for payment of money to another for the discharge of any debt or
other liability.
(2) That the cheque is presented to the bank within a period of 3 months from the date of issue.
(3) The cheque is returned by the bank unpaid, either because of insufficient funds or that it exceeds the
amount arranged to be paid from that account by an agreement made with the bank.
(4) The payee makes a demand for the payment of money by giving a notice in writing to the drawer within 15
days from the date of receipt of information from the bank regarding dishonour/return of the cheque.
(5) The drawer fails to make the payment within 15 days of receipt of the notice to the payee.
(6) If payment is not made then complaint can be filed under section 138 of the Negotiable Instruments Act
within 30 days from the date of expiry of 15 days specified in the notice.
As per RBI Guidelines, w.e.f. 1 April 2012, the validity period of cheques, D.D.’s, P.O.’s and Bankers Cheque has
been reduced from 6 months to 3 months from the date mentioned in the instrument.
Specimen No. VI
Complaint for Dishonour of Cheque
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS
AT ___________
Criminal Case No.______/___
Complaint under section 138 of the Negotiable Instruments Act
The complainant above-named states most respectfully as under:—
(1) That the complainant and accused were good friends and colleagues. Both of them are working at
________which is a Private Limited Company.
(2) That the complainant states that the accused approached this complainant with a request to give him a
hand loan of Rs. 1,00,000/- as the accused had to meet certain expenses on account of his daughter’s
marriage and towards the admission and other expenses of his son to Medical College.
(3) That the complainant in view of the friendly relations and in pursuance of the promise made by the accused
to repay the loan amount in six-months time, gave Rs. 1,00,000/- to the accused on _______ date by
cheque bearing no.____ drawn on ______ bank. The accused has acknowledged the receipt of the hand
loan amount and his liability to repay the same by email dated ______.
(4) The complainant submits that after 6 months the accused started avoiding this complainant under one
pretext or the other and now the complainant realised and understood the fraudulent intention of the
accused.
Page 14 of 17
(5) The complainant submits that after a lot of persuasion and chase the accused met the complainant and in
order to repay the loan amount issued a cheque dated ______bearing no.________ of Rs. 1,00,000/-
drawn on _____ bank..
(6) That the complainant presented the cheque on ______ date for realisation. However, the same was
returned/dishonoured with the banker’s endorsement reading “Insufficient Funds”. The copy of the cheque
and the endorsement of the bank are produced along with this complaint.
(7) That the complainant over the phone tried to contact the accused but the accused avoided the
complainant. Therefore, the complainant issued a legal notice on ______ date to the accused thereby
informing him about the dishonour of the cheque and also called upon the accused through the said notice
to make the payment of Rs. 1,00,000/- (Rupees One Lakh only), i.e., the cheque amount within 15 days.
That the said notice was sent to the accused by R.P.A.D.
(8) That the accused has failed to respond to the notice and has not made any payment to the complainant.
The said notice was received by the accused on _____ date.
(9) The accused with dishonest and fraudulent intention issued the said cheque to the complainant knowing
fully well that the same will be dishonoured.
(10) That the accused has thus committed an offence punishable under section 138 of Negotiable Instruments
Act.
(11) That the complainant has complied with the statutory requirements under section 138 of the Negotiable
Instruments Act and also given the accused the statutory period to make the payment as required by law.
(12) That the transaction took place and offence has been committed within the territorial jurisdiction of this
Hon’ble Court and hence this Hon’ble Court has territorial jurisdiction to try and entertain the present
complaint.
(13) The cause of action arose on ____ date when the accused failed to pay the amount of Rs. ______ to the
complainant hence the complaint filed today is within the period of limitation.
(14) The accused is liable to be tried and prosecuted for the offences under sections 138 and 142(b) of the
Negotiable Instruments Act.
(15) That the complainant most respectfully prays that this Hon’ble Court may be pleased to:—
(i) register a case against the Accused

(ii) the accused be dealt with as per law and
(iii) order and direct the accused to pay compensation under section 357 of Criminal Procedure Code,
1973 in the end of justice.
(iv) any other order in the interest of justice may kindly be passed.
15.3.9 Complaint under section 498A of Indian Penal Code
This section has been enacted to put a control on the menace of dowry deaths. Indian Evidence Act has also been
amended accordingly by inserting section 113A to raise a presumption regarding abetment of suicide by a married
woman,
It is not that every type of harassment or cruelty would attract section 498A. To attract the section 498A, the
complainant has to conclusively establish that the beating and harassment in question was with a view to force her
to commit suicide or to fulfill the illegal demands of dowry.
What is required to be established before the court is that, the woman soon before her death was subjected to
harassment, torture or cruelty by her husband or his family members with the intention to get dowry from the said
woman.
Page 15 of 17
In the case of Deepak v State of Maharashtra,6 the wife had died due to strangulation. She was also harassed for
dowry. The defence that injury was caused by a falling object was held to be unnatural and the accused was
convicted.
498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the
relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to fine.
Explanation.—For the purpose of this section, “cruelty” means—
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to
her to meet any unlawful demand for any property or valuable security or is on account of failure by her or
any person related to her to meet such demand.
Specimen No. VII
Complaint under section 498A of Indian Penal Code
IN THE COURT OF JUDICIAL MAGISTRATE, FIRST CLASS
Place__At.__(Dist)_____
Criminal Complaint No. _______/20___
Complaint under section 498A read with section 34 of the Indian Penal Code
That the complainant above-named most humbly states as under:—
(1) That this complainant married the accused no. 1 as per Hindu Vedic rites and ceremonies on ______date
at ________place.
(2) That the accused no. 2 is the mother of the accused no. 1 and the accused no. 3 is the father of the
accused no. 1.
(3) That the maiden name of the complainant was _________.
(4) That the complainant submits that the accused no. 2 and accused no. 3 at the time of marriage told the
complainant’s father that all the marriage expenses should be incurred by the complainant’s father
including expenses incurred to give the gifts/presents to the business partners of the accused no. 3 and
their relatives.
(5) The complainant submits that the complainant’s father as desired and expected by the accused no. 2 and
accused no. 3 spent almost Rs. 8 lakhs on account of marriage and other incidental expenses. The
complainant’s father also gave ______ tolas of gold in the form of jewellery to this complainant at the time
of marriage.
(6) The complainant submits that, after fifteen days of the marriage the accused no. 2 took all the jewellery
from this complainant to keep it safe in a bank locker. The accused no. 1 pressurised this complainant to
withdraw Rs. 55,000/- from her account as he wanted to buy computer and a printer for his office.
(7) The complainant submits that she soon realised that all the accused are very money minded, spendthrift
and greedy. As soon as all the money which complainant had got with her was spent by the accused, all
the accused started ill-treating and harassing this complainant. The accused no. 2 told the complainant that
during Diwali festival she should get silverware from her parents and also some cash to buy new sofa set.
Page 16 of 17
The complainant submits that the complainant was constantly under stress because of the constant dowry
demands made by the accused under one pretext or the other.
(8) The complainant submits that the accused no. 1 would continuously taunt her and insult her in presence of
family friends, relatives and neighbours. The complainant was labeled as a bad cook, horrible at house-
keeping with no intelligence. The accused no. 1 would constantly humiliate the complainant by saying that
he deserved a better life partner than the complainant.
(9) The complainant submits that the accused no. 2 & 3 pressurised this complainant to get
cash/jewellery/gifts from her parents every now and then. When this complainant expressed her inability to
do the same all the accused subjected her to mental and physical torture. That on the auspicious day of
_________ they asked the complainant to bring from her parents gold chain and gold bracelet for the
accused no. 1. When the complainant refused, all the accused abused her and did not allow her to have
meals.
(10) The complainant submits that the complainant was starved and was forced to do household work even
when she was running high-fever. On _______date when this complainant almost fainted, she through her
friend sent a message to her parents about her miserable condition.
(11) The complainant submits that, this complainant was admitted to the hospital by her father. After 15 days
she was discharged from the hospital.
(12) The complainant states that neither her husband, i.e., accused no. 1 nor the accused no. 2 & 3 have
bothered to meet this complainant.
(13) The complainant states that all the accused have subjected the complainant to harassment, torture and
mental and physical cruelty. The accused have made unreasonable dowry demands time and again. The
complainant’s valuables, jewellery and other articles are in the possession and custody of the accused.
The complainant, therefore, states that all the accused have committed offence under section 498A of IPC
read with section 34 of IPC.
(14) The complainant submits that this complainant due to the mental and physical torture and harassment
meted out to her by all the accused is left with no alternative but to stay with her parents.
(15) The complainant states that this complainant has filed complaint against the accused at ______ police
station on ______ date.
(16) The complainant states that after the complainant was discharged from the hospital on _____ date and
after obtaining necessary legal advice in the matter, the complainant has filed the present complaint hence
the same is well within the period of limitation.
(17) That the offence has been committed within the local limits of the jurisdiction of this court, and hence this
Hon’ble Court has jurisdiction to try and decide this complaint.
(18) That the necessary court fee is paid herewith.
(19) That the complainant therefore prays that
(i) all the accused may please be dealt as per law and punished accordingly;
(ii) any other just and equitable order as deemed fit may please be passed in the matter.
2 KS Chockalingam v T Kannappan, 1977 Cr LJ 1382, 1386 (Mad).

3 Bhimappa v Laxman, AIR 1970 SC 1153.
4 J&K v Ismail Sher, 1979 Cr LJ 557.
5 Sonbhandra Coke Products v State of UP, 1994 Cr LJ 657(All).
Page 17 of 17
6 Deepak v State of Maharashtra, (1995) 2 Cr LJ 2219 (Bom).
End of Document
15.4 Bail and Anticipatory Bail
Dr Medha Kolhatkar
CRIMINAL LAW

Bail means to set at liberty, a person arrested or imprisoned, on security being taken for his appearance on a day
and a place certain, which security is called ‘Bail.’
Bail connotes the process of procuring the release of an accused charged with certain offence by ensuring his future
attendance in the court for trial and compelling him to remain within the jurisdiction of the Court.7
“Bail” means the process by which a person is released from custody.8
The provisions regarding bail can be classified as (i) bailable cases and (ii) non-bailable cases. Therefore, from the
above provision it can be inferred that in every bailable offence, bail is granted as a matter of right. It can be given
either by the Police officer in charge of a Police station having the accused in his custody, or by the court.
15.4.1 Grounds for Grant of Bail
(i) the nature and seriousness of the offence;

(ii) the stage of investigation;
(iii) a reasonable possibility of the presence of the accused not being secured at the trial;
(iv) a reasonable apprehension of evidence being tampered with or such other circumstances which may be
brought to the notice of the Court which might hamper proper investigation into the matter.
The Calcutta High Court in the case of Legal Affairs v Amiya Kumar Roy Choudhury9 has explained the
principle behind giving bail: “The law of bails …has to dove tail two conflicting demands, namely on
one hand the requirements of the society for being shielded from the hazards of being exposed to the
misadventures of a person alleged to have committed a crime and on the fundamental canon of
criminal jurisprudence viz, the presumption of innocence of an accused till he is found guilty.
The primary object of arrest and detention of the accused person is to secure his appearance at the
time of trial and to ensure that if he is found guilty he can be punished as per the sentence. If the
presence of the accused at the time of trial could be reasonably ensured otherwise than by his arrest
and detention it would be unjust and unfair to deprive the accused of his liberty during the pendency of
criminal proceedings against him. In cases where a person is accused of a crime of a serious nature
then he may be prone to abscond or jump the bail so as to avoid the trial and the consequential
sentence.
A person accused of a bailable offence can be released on bail under section 436 of CrPC. It reads:
Page 2 of 12
436. In what cases bail to be taken.—(1) When any person other than a person accused of a non-bailable offence is
arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and
is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail,
such person shall be released on bail:
Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his
executing a bond without sureties for his appearance as hereinafter provided: Provided further that nothing in this section
shall be deemed to affect the provisions of sub-section (3) of section 116 or section 446A.
(2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply with the conditions of the
bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent
occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without
prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section
446.
Cancellation of Bail: The court has power to cancel a bail granted at any stage. The court can cancel the bail
granted by it under sections 437(5) and 439(2) of the CrPC.
15.4.2 Anticipatory Bail
Every individual’s liberty needs to be protected more so when someone is trying to take it away by falsely
implicating such an individual in the commission of an offence. Thus section 438 of the Code of Criminal Procedure
provides the guidelines for granting bail to a person apprehending arrest on the ground of having committed a non-
bailable offence.
15.4.3 Who can grant Anticipatory Bail
The High Court or the Court of Sessions is empowered under section 438 to grant anticipatory bail. The courts on
such an application directs that in the event of such arrest, the applicant shall be released on bail.
Anticipatory bail may be granted on such conditions as the court may think fit and proper, depending on the facts of
the particular case, including:—
(1) a condition that the person shall make himself available for interrogation by a police officer as and when
required;
(2) a condition that the person shall 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;
(3) a condition that the person shall not leave India without the previous permission of the Court;
(4) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted
under that section.
Anticipatory bail is not to be granted as a matter of rule; it is only granted when a special case is made out and the
court is convinced that the person is of such a status that he would not misuse his liberty.10
Section 438 does not require that the offence in respect of which the anticipatory bail is asked for, have been
registered with the police. The filing of FIR is not a condition precedent to the exercise of the power under section
438.11
Anticipatory bail can be granted in respect of non-bailable offences whether they are cognizable or non-cognizable
offences.
15.4.4 Distinction between Bail and Anticipatory Bail

Page 3 of 12
Bail is granted after arrest and therefore means release from the custody of the police. In case of anticipatory bail, it
is granted on apprehension or anticipation of arrest and is therefore effective at the very moment of arrest.
The power of anticipatory bail has to be exercised sparingly and in exceptional cases. The jurisdiction under section
438 is not to be freely exercised without reference to the nature and granting of the offence alleged, the possible
sentence that may be ultimately imposed, the possibility of interference with the investigation or the witness and the
public interest.
Every petition for anticipatory bail should be supported by an affidavit.12
The distinction between an ordinary order of bail and an order of “anticipatory bail” is that where the former is
granted after arrest and, therefore, means release from the custody of the police, the latter is granted in anticipation
of arrest and is, therefore, effective at the very moment of arrest.13
The object of section 438 is to protect the life and the applicant and to protect him from unnecessary trauma and
defamation of frivolous and false charges and arrest. As opposed to bail, which is granted to a person who is under
arrest, in anticipatory bail a person is directed to be released on bail even before arrest is made.
The power conferred under section 438 is of an extraordinary character only in the sense that it is not ordinarily
resorted to and it is only in exceptional cases where it appears that the person may be falsely implicated or where
there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his
liberty then power is to be exercised under section 438.
Section 438 does not require that the offence in respect of which the “anticipatory bail” is asked for has been
registered with the police. The filing of FIR is not a condition precedent to the exercise of the power under section
438.14
The words “may, if it thinks fit” used in section 438(I) and the absence of any specific restraints on the exercise of
the power to grant “anticipatory bail” clearly indicate that the legislature intended to confer and has in fact conferred
very wide discretion on the High Court and the Court of Session to grant “anticipatory bail”. These courts in the
exercise of their judicial discretion can grant “anticipatory bail” if they consider it fit to do so on the particular facts
and circumstances of the case and on such conditions as the case may warrant. Similarly, these courts are free to
refuse bail if the circumstances of the case so warrant, on consideration similar to those mentioned in section 437
or which are generally considered to be relevant under section 439 of the Code.15
If the application filed in the Court of Session for “anticipatory bail” is rejected, the applicant can again approach the
High Court under section 438(I) as there is no bar to do so.16
The provision of the anticipatory bail is abused many a times. The discretionary power vested with the High Court
and Sessions Court is being repeatedly invoked by persons accused of heinous offences. Pre-arrest bail
applications by murderers, rapists etc. are flooding the courts and the precious time of High Court is being spent in
dealing with these applications.
In the case of Sushila Aggarwal v State (NCT of Delhi)17 it was held that, conditions can be imposed by the
concerned court while granting pre-arrest bail order including limiting the operation of the order in relation to a
period of time if the circumstances so warrant, more particularly the stage at which the anticipatory bail application
is moved, namely whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and
the investigation is in progress or at the stage when the investigation is complete and the charge sheet is filed.
However, as observed hereinabove, the normal rule should be not to limit the order in relation to a period of time.
Cancellation of Bail: The court has power to cancel a bail granted at any stage. The court can cancel the bail
granted by it under sections 437(5) and 439(2) of the CrPC.
Specimen No. I
BEFORE THE HON’BLE MAGISTRATE_____, AT_____
Cri. Misc. Application No.____/20

Page 4 of 12
In C.R. No____/20____ registered with _____
Police Station under section____, ____ & ____ of IPC
First bail Application under section 436 of CrPC
The Applicant most respectfully submits as under:
(1) The ______ Police station has registered the above mentioned case against this accused for the alleged
offences punishable under Section ____, _____ and _____of Indian Penal Code. The accused was
arrested on _____ date.
(2) It is submitted that this accused is not guilty of any offence as alleged or otherwise. The allegations made
against the applicant/accused are false, frivolous, vexatious and lack in the material substance.
(3) The applicant is a resident at the above address and is residing there for past 20 years. The applicant is
working at ______ place as ______.
(4) The accused is innocent and is a respectable member of the society. The accused belongs to a very good
and reputed family and there is no criminal case pending against him.
(5) The applicant states that the dispute is of civil nature and does not attract any penal provisions of law. The
applicant states that the applicant has done the digging of the borewell on his premises by following all the
necessary norms. The applicant nor any of his employees, agents have entered the adjoining property i.e.
survey no. _____ at the time of digging of the borewell on this applicant’s premises. So also, no damage is
caused to Mr. _____ as alleged or otherwise.
(6) The applicant states that neither any recovery is to be effected from the applicant nor the applicant is in a
position to tamper with the prosecution evidence. The applicant undertakes to cooperate with the
investigation whenever he is required to do so.
(7) The applicant states that he is the only bread earner and his old parents are dependent on him.
(8) The applicant is a permanent resident and is working at _____ place and hence, there are no such
chances of his absconding from the course of justice.
(9) The applicant undertakes to present himself before the police/court as and when directed. The applicant
shall not leave India without the previous permission of the court.
(10) The applicant is willing to accept any other conditions as may be imposed by the court or the police in
connection with the case.
(11) If the applicant is not granted bail he will be deprived of his fundamental right to liberty.
(12) The applicant therefore most humbly prays:-
Page 5 of 12
(i) That the application for bail may kindly be allowed and the accused may please be enlarged on bail.
(ii) Pass any such other orders as deemed necessary proper in the interest of justice.
Place______
Date______ Advocate for Applicant/Accused
Specimen No. II
IN THE COURT OF HON’BLE SESSIONS JUDGE ______ AT______
Cri. Misc. Application No. ______/20____
In the Matter of section 439 of CrPC In the Matter of _____ P. Stn. C.R. No. ____/20__. In the Matter of sections
324, 143, 147, 148, 149, 504, 506 and 326, 307 of Indian Penal Code Date of FIR: ______
Most Respectfully Submited Herewith:-
1. The informant Shri. ______ has filed complaint that the present applicants have injured Shri. ______ the
grandson of the informant as the opponent has obstructed to construct the road near his farming field at
Village ____ near ____ in Gat No. ____. Thereby the complaint has been registered on _____ date against
the present applicants under sections 324, 143, 147, 148, 149, 504, 506 of Indian Penal Code. The
applicants are the residents at Gat No. _____, and having their residence in farm itself.
2. It is a fact that both the informant and present applicants are the residents of the same area, and also
having agriculture land adjacent to each other at Gat No.____ and _____. There are civil suits and
applications before revenue offices, pending between both the parties.
3. It is also pertinent to note that one application is also pending before Tahasildar at _____. In the said
application the Tahasildar at _____ has permitted and allowed the present applicants to have access to the
road from the land of the informant/opponent. The informant has approached the appellate court in the said
matter.
4. The applicants state and submit that the applicants on the day of incidence, i.e., on _____ date, were
working on their agriculture land and were digging road in order to take sugarcane out of the field from Gat
No. _____. The informant along with 9 other persons came in and started arguing with the applicants and
finally started pelting stones towards the applicants. The Applicant No. 2 herein has been injured in the
said incident and was admitted to hospital wherein stitches had to be put on his face. Thereafter,
immediately the Applicant No. 2 herein has filed complaint at _____ Police Station bearing Cr. No. __/20__
against the opponent _____ and 9 other persons.
5. The applicants further state that during the said incident while running and pelting stones towards the
present applicants from the place of the informant, the grandson namely. _____ of the opponent fell on the
ground and injured himself. The applicant states that one day after the said incident, i.e., on _____ date, in
the afternoon the informant Shri. ______ in order to nullify the complaint of the present Applicant No. 2 has
filed the counter-complaint against the present applicants.
6. It is further stated by the applicants that only to counter to the complaint filed by the present applicants, the
informant Mr. _____ has filed false case against the present applicants before _____ Police Station under
sections 324, 143, 147, 148, 149, 504, 506 of Indian Penal Code. The police of _____ Police Station have
added section 326 of the Indian Penal Code on _____ date and later on, on _____ date, the police of
______ Police Station have added section 307 of the Indian Penal Code.
7. It is pertinent to note that sections 326 and 307 of the Indian Penal Code have been added by the police
after one week of the said incident in the said CR.
Page 6 of 12
8. The present applicants have been arrested by the _____ Police Station on _____ date at midnight,
thereafter both have been in PCR till _____ date and on _____ date, both have been taken in MCR by the
Hon’ble JMFC _____, Dist. _____.
9. The Applicants therefore, have Approached this Hon’ble Court for Bail on the following amongst other
Grounds thereto:-
i) That applicants are citizens of India and permanent residents of above mentioned address and the
applicants are having immovable properties at the above mentioned addresses.
ii) That the applicants have been falsely implicated by the opponent only due to the land dispute and
family feud between the applicants and the opponent. Applicants submit that number of civil disputes
are pending between the parties and the present complaint is an outcome of various applications and
complaints filed before various authorities including the police by the applicants from time to time
against the opponent herein.
iii) That there is absolutely no overt act whatsoever attributed towards the applicants. The applicants
submit that the present FIR registered on false and unsubstantial facts and the facts stated in the FIR
are fabricated, concocted and are baseless and the police has wrongly implicated these applicants in
the present case.
iv) That it can be gathered from the annexure annexed herewith that the applicants were digging the road
on their land and they never went to the premises of the informant, also that the informant along with 9
others entered applicants land and attacked the applicants.
v) That nothing is to be recovered or discovered from the present applicants.
vi) That there is ample delay in lodging the FIR. The said FIR is an after-thought and is filed after the FIR
of the present applicants.
vii) The applicants are not likely to abscond or flee away from justice. The applicants undertake not to
change their residence during the investigations.
viii) That the applicants are ready to abide by the terms and conditions imposed by this Hon’ble Court and
that the applicants are ready to cooperate with the police machinery during investigation.
ix) The applicants submit that the applicants have very good antecedents, they belong to a good family
and other than the present case, there is no criminal case pending against them.
10. It is, therefore, prayed that,
a. The applicant may kindly be released on bail in C.R. No. ___/20___ registered by_____Police Station.
b. Any other just and equitable orders may kindly be passed in the interest of justice.
Place______
Date______ Advocate for the Applicants
Specimen No. III
IN THE COURT OF HON’BLE SESSIONS COURT____, AT____
Cri. Misc. Application No. ____/20
In C.R. No ____/20____ registered with ____ Police Station under section 467, 468, 471, of I.P.C
First bail Application under section 439 of CrPC

Page 7 of 12
(1) The ______ Police station has registered the above mentioned case against this accused for the alleged
offences punishable under section ____, ____ and ____ of the Indian Penal Code. The accused was
arrested on _____ date.
(2) It is submitted that this accused is not guilty of any offence as alleged or otherwise. The allegations made
against the applicant/accused are false, frivolous, vexatious and lack in the material substance.
(3) The accused is innocent and is a respectable member of the society. The accused belongs to a very good
and reputed family and there is no criminal case pending against him.
(4) That the applicant/accused is wrongly implicated due to enmity and family feud.
(5) The applicant states that neither any recovery is to be effected from the applicant nor the applicant is in a
position to tamper with the prosecution evidence. The applicant undertakes to cooperate with the
investigation whenever he is required to do so.
(6) The applicant states that he is the only bread earner and his old parents are dependent on him.
(7) The applicant is a permanent resident and is working at _____ place and hence, there are no such
chances of his absconding from the course of justice.
(8) The applicant undertakes to present himself before the police/court as and when directed. The applicant
shall not leave India without the previous permission of the court.
(9) The applicant is willing to accept any other conditions as may be imposed by the court or the police in
connection with the case.
(10) If the applicant is not granted bail he will be deprived of his fundamental right to liberty.
(11) The applicant therefore most humbly prays:-
i) That the application for bail may kindly be allowed and the accused may please be enlarged on bail.
ii) Pass any such other orders as deemed necessary proper in the interest of justice.
Place______
Date______ Advocate for Applicant/Accused
Specimen No. IV
[Bail before the court convicting an accused who intends to present an appeal]
IN THE HON’BLE MAGISTRATE/SESSIONS COURT AT __ (PLACE)_________
Cri. Misc. P. No. ________/ 20___
In _________
S.C. /C.C. No.________ of 20____
Petition under section 389(3) CrPC for grant of bail on conviction
The petitioner/accused most respectfully submits as under:—
(1) The petitioner/accused states that this accused has been convicted of offence under section ________ of
Indian Penal Code by the judgment and order dated _____ by the Hon’ble Court. The accused by the said
order is sentenced to ______ years’ imprisonment.
Page 8 of 12
(2) The petitioner/accused is dissatisfied and aggrieved by the order of this Hon’ble Court and hence intends
to prefer an appeal. The petitioner/accused harbours sanguine hopes of success in the appeal.
(3) It is most humbly submitted that the offence for which the petitioner is punished is a bailable offence and
the petitioner/accused was on bail throughout the trial of the proceedings.
(4) The petitioner/accused therefore most respectfully prays that
(a) This accused may please be released on bail in view of the aforestated facts in the interest of justice.
(b) Pass such other orders as deemed necessary and proper in the matter.
Place______
Date______ Advocate for Petitioner
Specimen No. V
Anticipatory Bail
BEFORE THE HON’BLE SESSIONS JUDGE, _____ AT____
Misc. Application No.______ /20____
In case under investigation with ____ Police Chawky,
____ Police Station, at ____
First Anticipatory bail Application under section 438 of CrPC
1. The applicant submits that the applicant is residing at the address mentioned in the caption of the
application since last ____ years. The applicant is highly qualified; he has completed his B.E. in electronics
and telecommunication (specialized in Radio Wave Propagation) M-Tech in electronics and
telecommunication (specialized in Planner antenna for mobile and aircraft based application, Frequency
selective surface, numerical methods) applicant is presently serving at ____ as _____.
2. The applicant submits that the applicant was serving at _____ in the year _____ for duration of _____
months, where he was working as Sr. Engineer. The_____ Company deals in the business of _____
Software. The applicant was also handling the Technical support team, handling Simulation tool for
advance industrial application, Antenna placement in the said company, wherein except the present
applicant nobody was as technically qualified as this applicant. The present applicant has left the company
in the month of October _____ to start his own consultancy.
3. The applicant submits that the applicant was called by the constable Mr. ______ of _____ Police Chawky
(under _____ Police Station) at _____. There he came to know that Mr. _____ the Director of _____
company (where this applicant was working) has lodged a complaint against the present applicant of
cheating. Applicant further states that it is contended in the said complaint by Mr. ______ in January
20____ that the present applicant has done cheating of “System Password Lock” etc., against the
company. The present applicant states that Mr. _____, the Director of the company was not happy with the
fact that this applicant was to start his private consultancy and apprehended that he would be a strong
competitor to the company. Thus, in order to threaten this applicant and dissuade him from starting his
consultancy, Mr. _____ has leveled false and fabricated allegations against this applicant. The Director Mr.
_____ has also threatened this applicant of dire consequences. Mr. _____ did not stop there and he gave
constant threatening calls to the present applicant because of which the present applicant has filed criminal
complaint at _____ Police Chawky on ____ date, under sections 504, 506 of the Indian Penal Code
against Mr. _____.
Page 9 of 12
4. The applicant submits that the constable Mr. _____ of _____ Police Chawky has questioned and inquired
about the detailed relevant documents and information of the account regarding the said transaction with
_____ company to the present applicant and the same has already been provided by this applicant to the
police of _____ Police Chawky (under _____ Police Station).
That the police of _____ Police Chawky (under _____ Police Station) again called this applicant on
_____ date and inquired and verified all the relevant details but found that no offence is made out
against the present applicant. Hence police of _____ Police Chawky (under _____ Police Station) did
not register any offence against this applicant. But on _____ date when the present applicant was out
of station at ______, Dist. ______ the said police personnel from ______ Police Chawky again called
the present applicant for further inquiry. Since the present applicant was out of station he telephonically
instructed his Advocate Mr. ______ to reply the said police station in writing that he is ready to face all
the inquiry of the said police station.
5. The applicant submits that the applicant herein therefore apprehends that this applicant may be arrested in
a false and concocted complaint made by the Director of ______ Company. That the nature of complaint
attracts the provisions of cognizable and non-bailable offences and thus this applicant is approaching this
Hon’ble Court with a request that the police may be directed to release this applicant on bail in the event of
his arrest on the following amongst other grounds thereto—
i. This applicant is an innocent person. The applicant has not committed any offence as alleged by the
complainant or otherwise.
ii. The allegations and averments made in the complaint are of civil nature and do not attract any criminal
liability. The said allegations are not well founded.
iii. That there are no incriminating circumstances against the present applicant to connect him with the
offence, besides this, this applicant has not committed any act, which will amount to an offence.
iv. This applicant says that his detention in the police custody and the Magistrate’s custody is not at all
required for investigation of the complaint.
v. Considering the nature of the complaint there is no likelihood of tampering with any kind of witness and
evidence. Also there is no likelihood of any intervention from the side of the present applicant for the
investigation. The applicant hereby undertakes to help and co-operate the investigating machinery to
find out the truth about the said complaint.
vi. The applicant is also ready to furnish security/surety and comply with terms and conditions whatever
the Hon’ble Court will impose.
vii. That the complaint does not disclose even a prima facie case and moreover the dispute is of a civil
nature. That the alleged complaint is totally based on documentary evidence, papers regarding the
issues, copies of any transaction, relevant documents etc. regarding the same are already given to the
police by the present applicant.
viii. That Mr. ______ has filed the complaint with an intention to pressurize this applicant and to extract
money from this applicant.
ix. It is pertinent to note that the present applicant has left the said company on ______ date, and
thereafter has not participated in the said business or the business of the company till date.
x. That there are no incriminating circumstances against this applicant to connect him with the offence.
This applicant has not committed any act, which will amount to an offence.
xi. That the applicant has never been sentenced at any time before this case nor is he prosecuted for any
other offence under any of the sections of the IPC or any other prevalent law. This applicant says that
he is otherwise also entitled for bail.
xi. The present applicant is permanently residing at ______ since last 10 years along with his old aged
mother, wife and one-year-old son______. All the family members are dependent on the present
applicant. The applicant is the only bread-earner in the family.
6. The applicant submits that except the present application no other application for anticipatory bail is filed
before this court, High Court or any other court.
Page 10 of 12
7. It is therefore prayed that:
(a) The applicant may kindly be released on anticipatory bail in connection with the case under
investigation with Police Chawky under _____ Police station, at ______.
(b) This applicant may be given interim anticipatory bail till the disposal of final application.
(c) Any other just and equitable order in the interest of justice may be passed.
Place______ Applicant
Date______ Advocate for Applicant
Specimen No. VI
Anticipatory Bail
BEFORE THE HON’BLE SESSIONS JUDGE, _____ AT____
Misc. Application No.______/20____
In case under investigation with _____ Police Chawky, _____ Police Station, at ______
First Anticipatory bail Application under section 438 of CrPC
The applicant most respectfully states as follows:—
(1) That the applicant is an employee at______for the past ____ years and is elected by ______ number of
workers of the said organisation as their Union leader.
(2) That the applicant is a sincere worker and has always supported the cause of the workers and enjoys good
standing and popularity amongst the workers of______ Company.
(3) The applicant states that on or about ______ date the applicant met the managing committee members
with the demand for providing certain facilities and salary increments to the workers/employees.
(4) The applicant states that Mr. ______ of the management committee spoke very arrogantly and rudely with
the applicant. The applicant provoked by the rudeness said to Mr. ______, that the Directors and members
of management committee are adding more and more luxuries to their lives at the cost of the blood and
sweat of the poor workers. That the management committee members are making foreign tours but are not
bothered about the plight of the workers and that he will always fight for justice for all his colleague
workers. The applicant states that the managing committee was very annoyed due to the remarks made by
this applicant.
(5) The applicant states that this applicant has no enmity with any of the members of the management
committee and was only advocating his concern for his colleague workers at the meeting with the
committee on ______ date.
(6) The applicant states that on ______ date at night Mr. ______, Director of the company, was attacked by
some unidentified persons and was stabbed. He is unconscious and is seriously injured. Mr. ______ is in
the ICU in _________ hospital.
(7) The applicant submits that other members of the managing committee are trying to implicate this applicant
falsely and intentionally for the said attack on Mr. _________
(8) The applicant submits that the applicant is a law abiding person and believes in fighting for a cause but by
abiding to the procedure established by law. This applicant has been working for the past ______ years as
Union Leader.
Page 11 of 12
(9) This applicant submits that the applicant has not committed nor is concerned with such a non-bailable
offence in anyway whatsoever.
(10) The applicant submits that on ______ date when Mr. ______ was attacked this applicant was with his
family members and relatives at ______ lawns attending the wedding of his nephew Mr. ______. The
wedding card is also produced herewith as also the photographs.
(11) The applicant apprehends that he may be falsely implicated into this coward and criminal attack on Mr.
______ by the members of the managing committee and hence this application.
(12) The applicant states that the constable Mr. ______ of ______ police chawky (under ______ Police station)
had called this applicant for inquiry. The applicant accordingly visited the said police chawky and has
submitted detailed information and relevant documents.
(13) The applicant states that Mr. ______, Director of the company is threatening this applicant of dire
consequences as he thinks that this applicant is involved in the attack on Mr. ______.
(14) The applicant submits that the applicant therefore fears and apprehends that he may be wrongly implicated
in a false complaint by the members of managing committee. That the nature of the complaints attracts the
provisions of cognizable and non-bailable offences and therefore this applicant has approached this court
with request that the police may be directed to release this applicant on bail in the event of his arrest inter
alia on the following grounds:-
i. This applicant is an innocent person. The applicant has not committed any offence as alleged by the
complainant or otherwise.
ii. The allegations and averments made in the complaint are false. The said allegations are not well
founded.
iii. That there are no incriminating circumstances against the present applicant to connect him with the
offence, besides this, this applicant has not committed any act, which will amount to an offence.
iv. This applicant says that his detention in the police custody and the Magistrate’s custody is not at all
required for investigation of the complaint.
v. Considering the nature of the complaint there is no likelihood of tampering with any kind of witness and
evidence. Also there is no likelihood of any intervention from the side of the present applicant for the
investigation. The applicant hereby undertakes to help and cooperate the investigating machinery to
find out the truth about the said complaint.
vi. The applicant is also ready to furnish security/surety and comply with terms and conditions whatever
the Hon’ble Court will impose.
vii. The applicant states that he will not leave the country without the prior permission of the court and that
there is no criminal case pending against this applicant.
viii. That the applicant is a permanent resident and there are no chances of his absconding from the course
of justice.
ix. The applicant is having very good antecedents; he belongs to good and reputed family.
x. The applicant is the only bread earner and his wife, children and old parents are dependent on him.
xi. If the applicant is arrested based on false and fabricated allegations he will be deprived of his right to
liberty.
(15) The applicant submits that except the present application no other application for anticipatory bail is filed
before this court, High Court or any other court.
(16) It is therefore prayed that:
(a) The applicant may kindly be released on anticipatory bail in connection with the case under
investigation with ______ Police Chawky under ______ Police station, at ______.
(b) This applicant may be given interim anticipatory bail till the disposal of final application.
(c) Any other just and equitable order in the interest of justice may be passed.
Page 12 of 12
7 Natturasu v State, 1998 Cr LJ. 1762 (Mad).

8 Webster New International Dictionary.
9 Legal Affairs v Amiya Kumar Roy Choudhury, (1974) 78 CWN 320, 325.
10 Lilaram L Revani v RD Gandhi, 1998 Cr LJ 14.
11 Suresh Vasudeva v State, 1978 Cr LJ 677.
12 Prafulla Jena v State of Orissa, Cr LJ 2681 (2684) MP.
13 Gurubaksh Singh Sibbia v State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 464, 474-75 : 1980 Cr LJ II25.
14 Suresh Vasudeva v State, 1978 Cr LJ 677 (Del).
15 Gurubaksh Singh Sibbia v State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 464, 474-75 : 1980 Cr LJ II25.
16 Jagannath v State of Maharashtra, 1981 Cr LJ 1808 (Bom).
17 Sushila Aggarwal v State (NCT of Delhi), 2020 SCC OnLine SC 98.
End of Document
15.5 Maintenance
Dr Medha Kolhatkar
CRIMINAL LAW
15.5 Maintenance
The provisions regarding maintenance are laid down in sections 125 to 128 of the Code. Section 125 is a measure
of social justice and special enactment to protect women and children, and falls within the constitutional sweep of
Article 15(3) reinforced by Article 39 of the Constitution of India.
These provisions provide for a speedy remedy to those who are in distress. They are intended to achieve this social
purpose. This section gives effect to the natural and fundamental duty of a man to maintain his wife, children and
parents so long as they are unable to maintain themselves. These provisions apply and are enforceable whatever
may be the personal law by which the persons concerned are governed.18
The provisions contained in sections 125 to 128 are applicable to all persons belonging to all religions and have no
relationship with the personnel of the parties.19
A woman who was in a marriage-like relationship, though not a legally wedded wife under section 125 could claim
maintenance under the protection against Domestic Violence Act.20
15.5.1 Section 125, of Criminal Procedure Code, 1973
The proceedings under section 125 of Criminal Procedure Code are in the nature of civil proceedings. Though they
are wholly governed by the procedure of Code of Criminal Procedure they are really of civil nature and are to be
dealt summarily.
The expression “maintenance” is not defined in the Code. But undoubtedly it includes food, clothing, shelter,
medical expenses and other expenses related to the normal pursuit of life.21 Section 125 of Criminal Procedure
Code is as follows.
(1) If any person having sufficient means neglects or refuses to maintain:—
(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such
child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, A Magistrate of the first class may, upon
proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance
of his wife or such child, father or mother, at such monthly rate as such magistrate thinks fit, and to pay
the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause
(b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is not possessed of sufficient means.
Page 2 of 7
15.5 Maintenance
Provided further that the Magistrate may, during the pendency of the proceeding regarding
monthly allowance for the maintenance under this Sub-Section, order such person to make a
monthly allowance for the interim maintenance of his wife or such child, father or mother, and
the expenses of such proceeding which the Magistrate considers reasonable, and to pay the
same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and
expenses of proceeding under the second proviso shall, as far as possible, be disposed of
within sixty days from the date of the service of notice of the application to such person.”;
Explanation.—For the purposes of this Chapter-
a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is
deemed not to have attained his majority;
b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband
and has not remarried.
(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be
payable from the date of the order, or, if so ordered, from the date of the application for maintenance or
interim maintenance and expenses of proceeding, as the case may be.;
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may,
for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying
fines, and may sentence such person, for the whole, or any port of each month’s allowance for the
maintenance or the interim maintenance and expenses of proceeding, as the case may be remaining
unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or
until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless
application be made to the Court to levy such amount within a period of one year from the date on
which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and
she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and
may make an order under this section notwithstanding such offer, if he is satisfied that there is just
ground for so doing.
Explanation.—If a husband has contracted marriage with another woman or keeps a mistress, it shall
be considered to be just ground for his wife’s refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and
expenses of proceeding, as the case may be from her husband under this section if she is living in
adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living
separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or
that without sufficient reason she refuses to live with her husband, or that they are living separately by
mutual consent, the Magistrate shall cancel the order.
In Bhuwan Mohan Singh v Meena, the Supreme Court held that any delay in adjudication of maintenance of cases
by the Family Court is not only against human rights but also against the basic embodiment of dignity of an
individual. The object of maintenance is to provide speedy remedy for supply of food, clothing and shelter to the
deserted wife and to prevent vagrancy and destitution. The court also observed in para 3 “be it ingeminated that
section 125 of the CrPC was conceived to ameliorate the agony, anguish, financial suffering of a woman who left
Page 3 of 7
15.5 Maintenance
her matrimonial home for reasons provided in the provision so that some suitable arrangements can be made by
the court and she can sustain herself and also her children if they are with her”.22
Specimen
Petition for Maintenance under section 125 CrPC
IN THE COURT OF ________ (PLACE)
Petition No._________/20___
Petition for Maintenance under section 125 CrPC
The petitioner/applicant above-named submits most respectfully as under:—
(1) The petitioner submits that the petitioner and the opponent are Hindus and were married on _______ date
as per Hindu Vedic rites and ceremonies.
(2) The petitioner submits that after the solemnisation of the marriage, the petitioner went to her matrimonial
home to stay with her husband, i.e., the opponent herein.
(3) The petitioner states that the opponent was and is habituated to drinking. During the petitioners stay at her
matrimonial home the opponent would constantly pick up quarrel with the petitioner, he would come drunk
to the house and mercilessly beat the petitioner. Due to all this the petitioner left her matrimonial home and
went to reside with her father at __________. The petitioner states that because of the mental and physical
cruelty committed by the respondent/opponent this petitioner against her wishes and desire had to leave
the matrimonial home.
(4) The petitioner submits that she left her matrimonial home on ______ date and since then the petitioner has
been living with her parents. The petitioner’s father is a worker in a flourmill. He has to look after his two
sons and wife along with the petitioner. The petitioner submits that she is unable to maintain herself.
(5) The petitioner submits that the opponent is working as Senior Clerk in _______ and is drawing a salary of
Rs._______/- per month. The opponent has no other financial responsibilities. His parents are not alive.
(6) The petitioner submits that the opponent has not bothered to talk to this petitioner after she left the
matrimonial home. When the petitioner through letter dated _____ called upon the opponent to pay her
maintenance, as she has no other means to maintain herself, the opponent has not bothered to reply to the
said letter till date nor has provided any money to the petitioner in lieu of maintenance.
(7) The petitioner submits that the opponent/respondent should pay an amount Rs. _______/- per month as
maintenance to the petitioner for the reasons stated hereinabove.
(8) It is therefore most respectfully prayed that—
(i) The opponent be directed to pay an amount of Rs._______/- per month to the petitioner.
(ii) Award costs of this application to the petitioner from the respondent.
(iii) Pass any other order as deemed fit and appropriate in the matter.
Place______ Petitioner
Section 126 elucidates the provisions regarding the jurisdiction, manner of taking evidence and grant of costs in
respect of proceeding under section 125. The proceedings under section 125 can be initiated either where the
husband resides or where he or his wife resides and where he last resided with his wife or with the mother of an
Page 4 of 7
15.5 Maintenance
illegitimate child as the case may be. The court must record the evidence in presence of the person against whom
the maintenance order is sought to be obtained.
The court can conduct the proceedings ex-parte if the person is avoiding the service or in spite of service, fails to
attend the court.
Section 126 of Criminal Procedure Code is as follows:—
(1) Proceedings under section 125 may be taken against any person in any district—
(a) where he is, or

(b) where he or his wife, resides, or
(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for
payment of maintenance is proceed to be made, or, when his personal attendance is dispensed with, in the
presence of his pleader, and shall be recorded in the manner prescribed for summons- cases: Provided
that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is
proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate
may proceed to hear and determine the case ex parte and any order so made may be set aside for good
cause shown on an application made within three months from the date thereof subject to such terms
including terms at to payment of costs to the opposite party as the Magistrate may think just and proper.
(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs
as may be just.
15.5.2 Section 127 of Criminal Procedure Code
Section 127 of Criminal Procedure Code empowers the court to modify, alter, amend the maintenance order passed
under section 125. The party seeking modification of such an order may apply to court. The relevant change of
circumstances must be pleaded in the application.
For example, the wife starts earning after the order is passed under section 125 of Criminal Procedure Code, then
the husband can seek modification of the said order.
Order passed under section 127 of Criminal Procedure Code can be cancelled if it is superseded by the civil court
decree or if the parties enter into a compromise.
Section 127 in the Code of Criminal Procedure, 1973 is as follows:
127. Alteration in allowance. —
(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly
allowance for the maintenance or interim maintenance, or ordered under the same section to pay a
monthly allowance, for the maintenance or interim maintenance to his wife, child, father or mother, as case
may be, the Magistrate may make such alteration as he thinks fit, in the allowance for the maintenance or
the interim maintenance as the case may be.
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any
order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may
be, vary the same accordingly.
(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or
has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—
(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her
remarriage;
Page 5 of 7
15.5 Maintenance
(b) the woman has been divorced by her husband and that she has received, whether before or after the
date of the said order, the whole of the sum which, under any customary or personal law applicable to
the parties, was payable on such divorce, cancel such order,—
(i) in the case where, such sum was paid before such order, from the date on which such order was
made,
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been
actually paid by the husband by the woman;
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her
rights to maintenance after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a
monthly allowance has been ordered to be paid under section 125, the Civil Court shall take into account
the sum which has been paid to, or recovered by, such person as monthly allowance from the maintenance
and interim maintenance or any of them, as the case may be, in pursuance of] the said order.
Specimen
IN THE COURT OF________________ AT___________
M.P. No.________/ 20____
Application for enhancement of maintenance
The applicant/petitioner above-named most respectfully submits as follows:—
(1) That the petitioner submits that the respondent/opponent herein has been paying an amount of
Rs._______/- per month as maintenance amount as per the order and direction of this Hon’ble Court to this
petitioner and daughter by name _________.
(2) That the petitioner submits that the daughter Miss._________ was an infant at time of the order. Now the
daughter is ______ years old and the amount of maintenance is very less as compared to the growing
needs of her daughter.
(3) That the petitioner submits that the opponent/respondent’s financial status also has grown. He is now
working as “Manager” in _______ Bank, drawing monthly salary of Rs.______/- per month.
(4) That the respondent, therefore, can very well afford to pay an enhanced amount of maintenance to this
petitioner and their daughter _______ now aged _____ years.
(5) That the petitioner/applicant therefore submits that due to the change in the circumstances (financial status
of the respondent and financial needs of their daughter due to age) there is a need to enhance the amount
of maintenance payable to this petitioner/applicant and her minor daughter by name _______.
(6) That in view of the aforementioned facts and circumstances the petitioner most humbly prays that the
amount of maintenance may please be enhanced to Rs._______/- per month payable by the respondent
herein and pass such further and other orders as deemed fit in the interest of justice.
15.5.3 Section 128

Page 6 of 7
15.5 Maintenance
When an order under section 125 of the Criminal Procedure Code is made, but the party fails to make payment
then, the said order can be enforced under section 128 of the Criminal Procedure Code.
Section 128 in the Code of Criminal Procedure, 1973 is as follows:
128. Enforcement of order of maintenance.—A copy of the order of maintenance or interim maintenance and expenses
of proceedings, as the case may be shall be given without payment to the person in whose favour it is made, or to his
guardian, if any or to the person to [whom the allowance for the maintenance or the allowance for the interim maintenance
and expenses of proceeding, as the case may be,] is to be paid; and such order may be enforced by any Magistrate in any
place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties
and the non- payment of the [allowance, or as the case may be, expenses, due.
For the enforcement of the order of maintenance under section 125, the normal rule is, at first, to issue a distress
warrant in the manner provided in the code for levying fines; but this rule need not necessarily be followed in each
and every case without considering the attending circumstances of the particular case. In a case where the
husband flatly refused point blank to make any payment to the wife in the matter of the huge arrears of
maintenance amount and persistently indulged in irresponsible behavior during the court proceedings, the order
sentencing the defaulting husband to imprisonment was held to be justified even though a distress warrant was not
issued by the Magistrate in the first instance.23
An application for an increase or decrease of the allowance can be made consequent upon a change in the
circumstance of either party at the time of the application for alteration.24
Specimen
IN THE COURT OF _________________
AT __________
Cri. M.P. No.__________/ 20____
Petition under section 128 CrPC
The petitioner most humbly submits as follows:—
(1) That this petitioner/applicant had filed Maintenance Petition under section 125 of CrPC bearing M.P.
No.______/ 20____. The Hon’ble Court was pleased to grant the petition by its order dated _______
thereby directing the respondent/ opponent to pay an amount of Rs._______/- per month to this applicant
from 1st of June 20____.
(2) That the petitioner submits that in spite of the Hon’ble Court’s orders and repeated demands made by this
petitioner including the notice dated _______, the opponent/ respondent has failed and neglected to pay
the maintenance amount to this petitioner.
(3) The copy of the said order passed by the Hon’ble Court is annexed herewith.
(4) That the petitioner is facing serious hardship due to non-compliance of the order by the
opponent/respondent.
(5) The petitioner most humbly prays that,
a) The Hon’ble Court may be pleased to sentence the respondent to civil prison in lieu of enforcement of
maintenance claim proportionate to the default amounts till such time it is paid and continues to pay
maintenance amount awarded, regularly and pass appropriate orders.
b) Award costs of this application to the petitioner from the respondent.
c) Pass any other order as deemed fit in the interest of justice.
Page 7 of 7
15.5 Maintenance
18 Bhatiya v State of Gujarat, 2005 (1) Crimes 1 (SC) : (2005) 3 SCC 636.
19 Nanak Chandra v Chandra Kishore Aggarwal, (1969) 3 SCC 802.
20 D Velusamy v D Patchaiammal, (2010)10 SCC 469.
21 Sushilaben Muhanlal v Mali Chunilal Hargovind, 1991 (2) Crimes 736, 738 (Guj.).
22 Bhuwan Mohan Singh v Meena, AIR 2014 SC 2875.
23 Bhure v Gomatibai, 1981 Cr LJ 789 (MP).
24 Meenakshi Ammal v J Balakrishnan, 1980 Cr LJ 1200, 1201(Mad).
End of Document
15.6 Other Applications
Dr Medha Kolhatkar
CRIMINAL LAW

Criminal Procedure Code provides for various applications that may be made during the trial. The object is to
protect the rights of the parties and to meet the ends of justice. It is therefore significant to learn how to draft these
various criminal applications under the Code of Criminal Procedure.
15.6.1 Application under Section 70(2)
Section 70 – Form of Warrant of Arrest and duration
(1) Every warrant of arrest issued by a court under this code shall be in writing, signed by the presiding officer
of such court and shall bear the seal of the court.
(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is
executed.
Every warrant of arrest shall be in writing and it must state the offence. The full description of the person to be
arrested must be given. It must state the name and designation of the person/s who is/are to execute the warrant.
The warrant of arrest should be duly signed by the presiding officer and sealed (Form No. 2 of the Second
Schedule of the Code of Criminal Procedure Code).
Specimen No. I
IN THE COURT OF THE DISTRICT AND SESSION JUDGE
AT __________
Cri. M. P. NO______ of 20____
S.C./ C.C. No.________ of 20____
Application under section 70(2) CrPC for cancellation of warrant of arrest
The petitioner/accused above-named states as under:
(1) The petitioner/accused is accused of an offence under section ______ of Indian Penal Code. The
petitioner/accused is innocent and has not committed any offence whatsoever.
(2) The petitioner/accused submits that on______ date the case was fixed for hearing but the accused failed
to remain present before the Hon’ble Court due to (state the reason) the sad demise of his mother.
(3) As the petitioner/ accused failed to appear the Hon’ble Court was pleased to issue warrant of arrest against
the accused. It is submitted that the warrant of arrest has not been yet executed against the accused.
Page 2 of 7
(4) That the accused no. 1 submits that the non-appearance of this accused at the time when the case was
called out was due to genuine and bona fide reasons and not intentional or deliberate.
(5) That the accused no. 1 submits that the accused has due regards to the orders and directions of this
Hon’ble Court and has no intention to disobey the same.
(6) The petitioner/accused states that he is a law-abiding person and undertakes to appear before the Hon’ble
Court in future as directed by the court.
(7) The petitioner/accused therefore humbly prays that the Hon’ble Court may be pleased—
(a) To cancel/recall the warrant of arrest issued against this accused.

(b) Pass any such other order or further orders, as the court may deem fit and necessary in the
circumstances of the case.
Place______
Date______ Counsel/Advocate for Accused
Specimen No. II
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS
AT _________
C.C. NO._________ / ___
Application under section 70(2) of the Code of Criminal Procedure for cancellation of warrant of arrest
The accused no. 1 above-named most respectfully submits as follows:—
(1) The complainant has filed the abovementioned case against this accused and others on false and
vexatious grounds without any iota of truth in the complaint. The accused is not guilty of any offences as
alleged or otherwise.
(2) It is submitted that the above mentioned case was fixed on _______ date for orders on the applications
filed by the accused for discharge. The accused no. 1 could not remain present before this Hon’ble Court
as his younger brother met with a serious accident on the same day. The accused no. 1 had to admit and
attend his brother in the hospital. Thus the accused no. 1 could not reach the court in time.
(3) That when the accused no. 1 reached the court, the case was already called out and this Hon’ble Court
was pleased to issue NBW (Non-bailable Warrant) against this accused no. 1.
(4) That the accused no. 1 submits that the non-appearance of this accused at the time when the case was
called out was due to genuine and bona fide reasons and not intentional or deliberate.
(5) That the accused no. 1 submits that the accused has due regards to the orders and directions of this
Hon’ble Court and has no intention to disobey the same.
(6) The accused no. 1 hereby undertakes to appear before this Hon’ble Court on all the future dates of hearing
without fail.
(7) Therefore, the accused no. 1 prays that this Hon’ble Court may be pleased to recall the NBW issued on
_______ date in the interest of justice.

Page 3 of 7
Place______
Date______ Advocate for Accused No. 1
15.6.2 Calling and Recalling of Witnesses
Section 217 of the Code of Criminal Procedure, 1973 provides for calling and recalling of witnesses.
Section 217 states as follows;—
217. Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor
and the accused shall be allowed—
(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may
have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor
or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of
vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material.
This section allows both the prosecutor and the accused to apply to the court for calling and recalling of witnesses if
a charge is altered or added to by the Court after the trial has commenced. However, the Court may deny such right
if it is of the opinion that the object is only to delay for the purpose of vexation or defeating the ends of justice.
Specimen
IN THE COURT OF SESSIONS JUDGE AT_____________
Cr. C. No.__________/ 20_____
Application for recalling witness under section 217 of CrPC
The accused above-named states most respectfully as under:—
(1) That in the abovementioned complaint the complainant has examined PW1 and PW2 to prove the charges
in the complaint.
(2) That the accused submits that PW2 has deposed in his evidence that he was present at the scene of the
offence. However, it has now come to the knowledge of the accused that the PW2 who is a trustee of
________ was at ________ place and was attending meeting of Board of Trustees of _______ at
________.
(3) That the PW2 has also signed the minutes of the meeting wherein the day, date and timing are specified.
(4) That the accused therefore submits that the accused desires to recall the PW2 for further cross-
examination on this point in the interest of justice. The accused states that the testimony of PW2 cannot be
relied on as the PW2 was not present at the scene of offence. It is therefore essential to further cross-
examine PW2 to disprove his deposition.
(5) That it is therefore most humbly prayed that the Hon’ble Court may be pleased to order recalling of PW2
for further cross-examination in the interest of justice and pass such further and other orders as deemed
appropriate.
Place______
Date______ Advocate for Accused

Page 4 of 7
15.6.3 Section 205 of CrPC. Magistrate may dispense with personal attendance of accused
Section 205 recognises the right of the accused to seek exemption from personal appearance before the court. The
general rule is that the accused should be present on all the days of hearings. However, where there are genuine
difficulties in remaining present before the court, exemption can be granted.
However, where the accused is moving freely and appearing in different offices, refusal of exemption from personal
appearance on the ground of old age, illness and distance place was held justified.25
Section 205 is as follows:—
(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal
attendance of the accused and permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings,
direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner
hereinbefore provided.
[Application of Exemption from Personal attendance under section 205 CrPC]
Specimen
IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS
Cr. I. M. P. No.______ of 20__
In __________________
C.C. No._________of _______
Petition by Accused under section 205 of CrPC
The petitioner/accused most humbly submits as follows:—
(1) That the petitioner/accused is charged with offences under sections ______ _______ and _______ of IPC.
The accused has received summons for his appearance before this Hon’ble Court on _______date.
(2) The petitioner/accused humbly submits that he is suffering from advance stage of cancer and is
undergoing chemotherapy. The accused is advised complete rest during the sessions of chemotherapy.
The accused is also advised not to travel and avoid going to crowded places to protect from infection.
(Medical Certificate is enclosed herewith)
Therefore the petitioner/accused is unable to attend the court on _________date, i.e., the date of his
first appearance before the court pursuant to the receipt of summons.
(3) The petitioner/accused submits that due to above-mentioned reasons, this petitioner/accused is unable
abide by the orders of this Hon’ble Court and therefore prays that the accused may please be dispensed
with the personal attendance on _________ date and the Adv __________ may please be allowed to
appear to represent and defend this accused.
(4) And pass such order or orders as the court may deem fit and proper.
Place______
Date______ Petitioner/Accused
Page 5 of 7
15.6.4 Disposal of Property under Sections 451 and 452 of Criminal Procedure Code
451. Order for custody and disposal of property pending trial in certain cases.—When any property is produced
before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of
such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if
it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or
otherwise disposed of.
Explanation.—For the purposes of this section, “property” includes—
(a) property of any kind or document which is produced before the Court or which is in its custody,
(b) any property regarding which an offence appears to have been committed or which appears to have been
used for the commission of any offence.
Under section 451, the Criminal Court can thus pass an order for interim custody of the property produced before it
during inquiry and trial.
The power under Section 451, Cr.P.C. should be exercised expeditiously and judiciously during inquiry or trial keeping in
mind various purposes, namely:—
(1) the owner of the article would not suffer because of it remaining unused or by its misappropriation
(2) the court or police would not be required to keep the article in safe custody and
(3) if proper zimanama before handing over possession of the article is prepared, that can be used in evidence
instead of its production before the court during the trial. If necessary, evidence should also be recorded
describing the nature of the property in detail.26
The provisions of section 451 are not confined merely to property which is subject to speedy and natural decay but
also wide rangingly extends to each and every case of property if the court is of the opinion that it is otherwise
expedient to make an order for sale or disposal thereunder.27
An order under section 451 of the Code of Criminal Procedure, granting interim custody of the disputed land till the
conclusion of the trial by delivery of custody of the land to the complainant is legal and proper.28
15.6.5 Section 452
Section 452 deals with the provisions regarding disposal of property at the conclusion of trial. The provisions to this
refer to four classes of property or document:
(i) Produced before the Court or

(ii) In its custody or
(iii) Regarding which any offence is committed or
(iv) Which is used in committing any offence.
Such property can be disposed off in the following ways—
(a) destruction;
(b) confiscation;
(c) delivery to person entitled to its possession or otherwise.
Page 6 of 7
The power of the court extends to the confiscation of the property in the custody of the court but it is not in every
case in which the court must necessarily pass an order of confiscation irrespective of the circumstances of the
case.29
Section 452 is as follows:—
(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks for
the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession
thereof or otherwise, of any property or document produced before it or in its custody, or regarding which
any offence appears to have been committed, or which has been used for the commission of any offence.
(2) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be
entitled to the possession thereof, without any condition or on condition that he executes a bond, with or
without sureties, to the satisfaction of the Court, engaging to restore such property to the Court, if the order
made under sub-section (1) is modified or set aside on appeal or revision.
(3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to be
delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in
sections 457, 458 and 459.
(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has
been executed in pursuance of sub-section (2), an order made under sub-section (1) shall not be carried
out for two months, or when an appeal is presented, until such appeal has been disposed of.
(5) In this section, the term “property” includes, in the case of property regarding which an offence appears to
have been committed, not only such property as has been originally in the possession or under the control
of any party, but also any property into or for which the same may have been converted or exchanged, and
anything acquired by such conversion or exchange, whether immediately or otherwise.
Specimen No. I
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS __________
AT___________
Cr. R. C. No._________/20___
Application under section 451 of CRPC
The above-named applicant states most respectfully as follows:—
(1) The applicant submits that on _________ date theft had taken place at the residence of this applicant, i.e.,
at ___________place. That valuables such as gold and silver ornaments, articles studded with precious
stones, etc. were stolen from the house of this applicant at ___________ place.
(2) The applicant has lodged a Police complaint regarding the same immediately on the same date.
(3) The applicant states that on investigation by the police, the said valuables were recovered from Mr.
_________ and has confessed the commission of offence of theft, at the applicant’s house.
(4) The applicant states that the list of valuables and its complete description is annexed to this application.
The said property has been duly identified by the applicant before the police as well as before the Hon’ble
Court.
(5) The applicant states that this applicant is the owner of the said property and has every right to be in
possession and in custody of the said property. Therefore, this applicant desires to have the possession
and custody of the said valuables. The trial will take considerable amount of time. The applicant is ready
and willing to furnish any bond or undertaking as may be directed by the Hon’ble Court.
(6) It is, therefore, most humbly prayed that:—
Page 7 of 7
(a) The applicant may please be given the possession and custody of the valuable articles as per the list
annexed herewith.
(b) Pass such other and further orders as deemed fit and appropriate by the Hon’ble Court in the interest
of justice.
25 Kamaljeet Singh Ahulwalia v State of Orissa, 1998 CrLJ 2191 (Ori).

26 Priyabrata Sukla v State of Orissa, 2003 Cr LJ 2787 (2789) (Ori).
27 Balraj Singh v State of Punjab, 1982 Cr LJ 1314, 1377 (P&H (DB)).
28 Mag Das v State of Rajasthan, 1986 (2) WLN 586.
29 Suleman Issa v State of Bombay, AIR 1954 SC 312.
End of Document
15.7 Criminal appeals
Dr Medha Kolhatkar
CRIMINAL LAW

Right to appeal is a statutory right. Appeal means rehearing of the case both on facts and law points by a superior
court in hierarchy. Section 372 of the Code of Criminal Procedure states that no appeal shall lie unless so provided
by the Code.
Section 372 of the Code of Criminal Procedure declares that no appeal to lie unless otherwise provided.––“No
appeal shall lie from any judgment or order of a Criminal Court except as provided for by the code of criminal
procedure or by any other law for the time being in force.”
Section 374. Appeals from convictions:—
(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may
appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on trial held
by any other Court in which a sentence of imprisonment for more than seven years has been passed
against him or against any other person convicted at the same trial to the High Court.
(3) Save as otherwise provided in sub-section (2), any person—
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the
first class, or of the second class, or
(b) sentenced under section 325, or
(c) in respect of whom an order has been made or a sentence has been passed under section 360 by any
Magistrate, may appeal to the Court of Session.
Thus, the Code enumerates against which judgment and order appeal is maintainable—
For example, section 373 lays down the provisions regarding appeals from orders requiring security or refusal to
accept or rejecting security for keeping peace or good behaviour.
There are other provisions also in the Code of Criminal Procedure which provide for right of appeal, e.g., sections
250, 449, 454, etc.
Specimen No. I
Appeal
IN THE COURT OF SESSION JUDGE ____________
C.A. No._______ of 20___

Page 2 of 3
Criminal Appeal against the judgment and order dated______ in C.C. No.______/ 20____
The appellant above-named states and submits most respectfully as under:-
(1) The appellant/accused has preferred this appeal against the judgement dated _____ passed by the judicial
magistrate first class under section ______ and ____ of IPC wherein the appellant has been convicted and
sentenced under section ____ and ____ of IPC for one year of imprisonment. Being aggrieved and
dissatisfied by the said judgement and order, the appellant has preferred the present appeal on following
grounds:
i) The learned lower court has not followed proper procedure and this has resulted into miscarriage of
justice.
ii) The order passed by the learned lower court is violative of principles of natural justice, equity and good
conscience.
iii) The Hon’ble trial court failed to consider evidence in a judicious manner and the findings arrived at are
not supported by evidence on record.
iv) The Hon’ble trial court ought to have held that there was no criminal intent on the part of the
appellant/accused which is an essential ingredient to constitute an offence.
v) The trial court ought to have acquitted the accused/appellant on the ground of benefit of doubt for the
great many controversies committed in the evidence adduced by almost all prosecution witnesses.
vi) The learned lower court should have rejected the entire prosecution case as highly improbable
because no proper punchnama was drawn up in support of the prosecution case.
vii) The trial court grossly erred in arriving at a tacit conclusion that there was an illegal omission on the
part of the accused.
viii) The learned lower court failed to consider the fact that the act of appellant in its nature is not at all
criminal and only on that merit the accused appellant deserves a clear exoneration.
(2) The appellant/accused states that on the aforestated grounds the judgement and order passed by the
Hon’ble Magistrate’s Court deserves to be set aside in the interest of justice.
(3) It is, therefore, most respectfully prayed as under:-
a) Call for record, release the appellant pending the disposal of appeal on bail.
b) Allow the appeal and the conviction and sentence passed by the trial court by its judgement and order
dated ______ in C.C.No. ______ may please be set aside.
c) Pass such other order as the ends of justice may call for and your appellant as in duty bound shall ever
pray.
Place______ Appellant/Accused
Date______ Advocate for Appellant/Accused
Specimen No. II
Appeal
IN THE COURT OF SESSION JUDGE ____________
C.A. No_______ of 20___

Page 3 of 3
Criminal Appeal against the judgment and order dated______ in C.C. No.______/ 20____
That the appellant above-named states most respectfully as under:—
(1) That the appellant/accused being aggrieved and dissatisfied by the judgment and order passed by the
Court of the ____ Sessions Judge at _______ in C.C. No.________/20____ on _______ date prefers this
criminal appeal on following grounds:—
Grounds of Criminal Appeal:
(i) That judgment passed by the Trial Court is against law, incorrect and improbable.
(ii) That the Trial Court has grossly erred in ignoring the contradictions of prosecution witnesses.
(iii) That the learned Trial Court has not taken into account the documentary evidence adduced before the
Hon’ble Court.
(iv) That the learned Trial Court ought to have taken into account the evidence in totality while passing the
judgment and sentence.
(v) That the learned Trial Court ought to have held that the appellant/ accused is innocent and has been
falsely implicated by the complainant/ respondent.
(vi) That the learned Trial Court ought to have given due weightage to the evidence of the accused.
(2) It is therefore most respectfully prayed that:
(i) This appeal of the appellant may please be allowed and the conviction and sentence passed by the
trial Court by its judgment and order date _______ in C.C. No._______ may please be set aside.
(ii) Pass any other and further orders as deemed fit in the interest of justice
Place______ Appellant
Date______ Counsel for the Appellant
End of Document
15.8 Revision
Dr Medha Kolhatkar
CRIMINAL LAW
15.8 Revision
Sections 397 to 405 of the Code of Criminal Procedure, 1973 lay down the provisions of Revision. Session Judge,
Additional Sessions Judge and the High Court are vested with revisionary powers. It is to be remembered that the
revisionary powers conferred on these courts are very wide in nature and are purely discretionary in nature.
The courts exercising revisionary powers can call for and examine the record of any proceedings before any inferior
court and satisfy itself as to the correctness, legality or propriety of order passed by the inferior court. They can
pass orders to remove the irregularity or illegality to prevent miscarriage of justice. Revisional jurisdiction can be
exercised on application of party or suo motu.
Revisionary powers cannot be exercised in relation to any interim or interlocutory order passed in any appeal,
inquiry, trial or other proceedings (Section 397(2))
The revisional jurisdiction is normally to be exercised only in exceptional cases where there is some glaring defect in the
procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice.30
15.8.1 Section 399. Sessions Judge’s powers of revision
(1) In the case of any proceedings the record of which has been called for by himself, the Sessions Judge may
exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of
Section 401.
(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1),
the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such
proceeding and references in the said sub-sections to the High Court shall be construed as references to
the Sessions Judge.
(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the
decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding
by way of revision at the instance of such person shall be entertained by the High Court or any other Court.
15.8.2 Section 400. Power of Additional Sessions Judge
An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter
in any case which may be transferred to him by or under any general or special order of the Sessions Judge.
15.8.3 High Court’s power of Revision
Section 401 lays down the scope and ambit of exercise of revisionary powers by the High Court.
Section 401. High Court's powers of revision. —

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15.8 Revision
(1) In the case of any proceeding the record of which has been called for itself or which otherwise comes to its
knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of
Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges
composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner
provided by Section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has
had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one
of conviction.
(4) 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.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by
any person and the High Court is satisfied that such application was made under the erroneous belief that
no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat
the application for revision as a petition of appeal and deal with the same accordingly.
Specimen No. I
(Revision)
IN THE HIGH COURT OF JUDICATURE OF __________
AT___(PLACE)________
Cr. R. C. No._________/20___
The above-named Revision Petitioner craves leave of this Hon’ble Court to state most respectfully as follows:—
(I) That the revision petitioner being aggrieved of and dissatisfied by the Judgment of the _______ Sessions
Court (Place) in CA NO._______ of 20___ passed on _______ date thereby confirming the judgment of
_______ Magistrate (Place), passed on _______ convicting the accused to undergo rigorous imprisonment
for _____ term and to pay a fine of Rs.______ and in case of default to undergo simple imprisonment for
_______ among the followings:
(II) Grounds of Revision
(1) The Hon’ble Appellate Court has grossly erred in confirming the judgment of the Trial Court as well as
the sentence. The said decision is against law, improper, and against the probabilities of the case.
(2) That by giving undue weightage to the evidence of PWs, both the courts have convicted this petitioner
to undergo ________ years of rigorous imprisonment is bad in law and needs to be rectified as the
same has resulted in gross miscarriage of justice.
(3) The court’s below have ignored the discrepancies of PWs in their cross-examination.
(4) The courts below have not decided the case on legal and admissible evidence and were swayed away
by considerations not relevant for the purpose of deciding the relevant questions before it.
(5) The Hon’ble Courts below have overlooked the material evidence while passing the order convicting
this petitioner. (Give details from the judgment)
(6) [In similar way enumerate other grounds as applicable to the case/s].
(7) This Revision Petitioner therefore prays that the Hon’ble Court may be pleased to
i) Set-aside the judgment of the _________ Sessions Court at Place passed in C.A. No._____ of
20___ date_______ and also that of _______ Magistrate passed in C.C. No.________ of 20___
on _______date and
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15.8 Revision
ii) Pass such other order or orders as deemed appropriate.
Date______ Counsel for Petitioner
Specimen No. II
(Revision)
IN THE HIGH COURT OF JUDICATURE OF __________
AT___(PLACE)________
Cr. R. C. No._________/20___
The above named Revision Petitioner craves leave of this Hon’ble Court to state most respectfully as follows:—
(1) The Revision Petitioner being aggrieved and dissatisfied by the judgement of the ______ Sessions Court
(Place) in criminal appeal no. ______ of 20____ passed on ______ date thereby confirming the judgement
of ______ Magistrate (Place) passed on ______ date convicting the Accused/Petitioner to undergo
rigorous imprisonment for ______ term and to pay a fine of Rs. ______ and in case of default to undergo
simple imprisonment for ______ term, has therefore, preferred the present revision petition inter alia on the
following grounds:-
(2) Grounds of Revision:
i) The courts below failed to take into notice the considerable unexplained delay caused in lodging the
FIR.
ii) There was no injury on the person of the injured to make out the case punishable under section _____
of IPC.
iii) The judgement and order passed by the courts below is against the weight of evidence on record as
the courts below failed to scrutinize and properly appreciate the prosecution evidence on record.
iv) There is no independent corroboration of the statement of the complainant and the conviction based
upon the single testimony is wrong and illegal.
v) The judgement and order passed by the courts below are wrong, illegal perverse and against the
settled principle of law hence, liable to be set aside.
vi) The courts below ought to have held that the injury caused to the complainant was due to accident and
for which the Revision Petitioner is not responsible.
vii) The Prosecution has miserably failed to prove its case beyond all reasonable doubts. Hence, the
conviction order passed is bad in law The judgment and the orders passed by the court below are
contrary to the provisions of Criminal Procedure Code.
(3) The Revision Petitioner, therefore, prays that the Hon’ble Court may be pleased to;—
a) Set aside the judgement of Hon’ble Sessions Court passed in criminal appeal no. ______ dated
______
b) Pass such other and further orders as deemed fit and appropriate by the Hon’ble Court in the interest
justice.
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15.8 Revision
Place______ Petitioner/Accused
30 Jagannath Choudhary v Ramayan Singh, AIR 2002 SC 2229.
End of Document
CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE
Dr Medha Kolhatkar
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE

CONVEYANCING
End of Document
16.1 Conveyancing
Dr Medha Kolhatkar
PROCEDURE
16.1 Conveyancing
16.1.1 Introduction
Conveyancing means an art of transferring titles to real estate from one person to another. In other words
conveyance means an act by which property is conveyed or voluntarily transferred from one person to another by
means of a written instrument and other formalities.
Conveyancing is described as an art of creating, transferring and extinguishing interests in property both in dealing
with substantive law and providing examples to illustrate its principles.1
The society which recognises private ownership of property and is governed by the rule of law must have laws
protecting the ownership and other incidental rights. Thus, a system of documentation was evolved in course of
time. If documentation is done systematically and meticulously, transactions would be devoid of any ambiguity and
vagueness. This would avoid future disputes and differences.
Conveyancing is an art of drafting deeds, whereby the land or any interest in land is transferred by one party to
another. “Law of Conveyancing” is that branch of law which governs and is related to the drafting of the legal
documents. The subject matter of this branch of law is related to the transfer of property and the necessary
document is used for the purpose of transferring any right, title or interest in any immovable property from one
person to another.
16.1.2 Meaning of Deed/Instrument
The Indian Evidence Act, 1872, under section 3 defines a document—“‘Document’ means any matter expressed or
described, upon any substance by means of letters, figures or marks, or by more than one of those means,
intended to be used, or which may be used, for the purpose of recording that matter”. Section 3(18) of the General
Clauses Act, 1897 also defines “document” in the same words, with the only difference being that the definition
stated by General Clauses Act is inclusive and the definition given under the Evidence Act is exhaustive.
The Indian Stamp Act, 1899, under section 2(14) defines an “Instrument” to include every document by which any
right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded.
A deed means an instrument which is written on a paper or even a parchment or vellum, executed by a party under
seal and delivered as his act or deed expressing that the person so named, makes, confirms, concurs in, or
consents to some assurance, other than by way of testamentary disposition of some interest in the property or
some legal or equitable right, title or claim or undertakes or enters into some obligation, duty or agreement
enforceable at law or in equity or does or concurs in some other act affecting the legal relation or position of a party
to the instrument or some other persons or corporation.2
According to Black’s Law Dictionary, 8th Edition, “Deed” means something that is done or carried out; an act or
action; a written instrument by which land is conveyed; at common law, “any written instrument that is signed,
sealed and delivered that conveys some interest in property.”
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16.1 Conveyancing
According to the Oxford Companion to Law by David M. Walker, “Deed” means instrument written or otherwise
marked on paper or similar substances expressing the intention or consent of some person to make, confirm or
concur in some assurance of some interest in property or some obligation, duty or agreement, sealed and delivered
as that party’s act and deed.
It has been rightly said, “deeds are instruments but all instruments are not deeds.” Deeds are of various forms and
they are usually classified as unilateral deeds or bilateral deeds or multilateral deeds. The deeds which are made
only by one party are called as Deed Poll and they are generally drafted in first person. Those deeds wherein there
are two or more parties they are called as indentures.
16.1.3 Drafting of a Deed
Drafting of a deed involves the following components:
(i) The law by which the parties are governed

(ii) Effect of the transaction
(iii) Certainty and clarity by using appropriate words and expressions. For any deed, the foundation is the law,
the facts are the structure and the language is the architecture.3 The draftsman must conceive the design,
effect of document before beginning with the drafting of a deed.
The draftsman must have thorough knowledge of the applicable laws, for example, Indian Registration Act, Stamp
Act, Transfer of Property Act etc. wherever they may be applicable.
16.1.4 Components of a Deed
There are certain features of a deed of conveyance. A deed of conveyance is generally drafted with the following
components:—
16.1.4.1 Name or title of the Deed
A name or title of the deed gives a clue to the reader as to the nature of transaction between the parties. However,
it is to be noted that it is not the name given to the document but the contents which decide the name and nature of
the document.
16.1.4.2 Date and place
The date of the deed and the place where the deed is executed are important because by virtue of the deed of
conveyance certain rights and obligations are created or transferred. Therefore, date and place must be specified
very clearly in every deed and generally at the start of the document.
16.1.4.3 Parties
Complete description of parties to the deed must be given. If the transferor or transferee is a corporate body,
Partnership firm, HUF, etc., the details, such as the name, registered office, karta of HUF, etc., should be stated in
the deed. Depending on the type of document, the parties are described as ‘vendor’ and ‘purchaser’, ‘lessor and
lessee’, ‘transferor and transferee’, etc. The parties to the deed are also described as Party of the First Part, Party
of the Second Part, etc. or Party of the One Part and Party of the Other Part. A deed relating to Transfer of Property
is not only binding on the parties, thereto, but also on the persons claiming through them. Therefore, after
describing the vendor or purchaser it is written “which expression unless repugnant to the context or meaning
thereof shall mean and include his heirs, executors, administrators and assigns”; and in the case of corporate
bodies, “their successors and assigns”.
Sometimes a third party is required to be added as a party to the transaction though such party is neither the
transferor nor the transferee. Such a party is added as ‘Consenting Party’ to the transaction. Transferee is not a
necessary party in all deeds of conveyance. But where the statute lays down so, then it is mandatory to execute the
document both by the transferor and transferee.
16.1.4.4 Recitals
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16.1 Conveyancing
Recitals state the background and purpose of the document. Recitals generally are of two types, narrative and
introductory. The narrative recitals relate to the title of the present vendor. They include a brief narration of tracing
the title of the transferor. Recitals should always be arranged in chronological order of events narrated in it.
Generally, the Paras in recitals begin with ‘whereas’.
16.1.4.5 Testatum
After the recitals, the operative part of the deed is to be drafted which is the main/primary operative part, termed as
Testatum. Testatum means witness. The main part begins with “NOW THIS DEED WITNESSES AS FOLLOWS.”
16.1.4.6 Terms and Conditions
This part of the deed describes the terms and conditions which the parties have mutually agreed upon, such as:—
(i) Transfer of property or interest

(ii) Consideration
(iii) Method of payment of consideration
(iv) Acknowledgement of payments made
(v) Covenant as to title
(vi) Nature of interest transferred
(vii) Possession
(viii) Other incidental clauses such as easement, etc.
16.1.4.7 Habendum
Now comes the habendum clause which states the estate/property which the purchaser takes as an owner or
otherwise. Therefore, in habendum the transferor allows and declares that the transferee is entitled “To Have and
To Hold” the property described in the deed.
16.1.4.8 Testimonium
The testimonium is the last or the concluding part of the deed. It is generally written as “IN WITNESS WHEREOF
the parties have put their respective hands/signatures on the day and year first hereinabove written.”
16.1.4.9 Schedule of the property
After the testimonium the schedule of the property must be given with full description. Sometimes the
deed/document in question may require more than one schedule of the property. Then the title is given as schedule
of property-I and schedule of property-II, etc. The description of the property must state where the property is
situated, area of the land in square Metre, survey numbers, boundaries, etc., so that the property can be identified.
16.1.4.10 Execution and Attestation
Any document will be of no legal consequences if the same is not executed and attested as required by law. In the
end, the parties to the deed put their respective signatures and initials on all the pages of the deed. This is called as
execution of the document. In case of a corporate body it is necessary to affix the seal of the company. If a person
is illiterate then his thumb impression is obtained by smearing the thumb, left or right with ink.
There is a difference between executing and signing of a document. Execution is not mere signing. Execution of a
document means signing a document written out, read over and understanding it. It does not consist of merely
signing a blank paper.4
The next formality to be complied with is defined under section 3 of the Transfer of Property Act, 1882 and under
section 3 of the Indian Succession Act, 1882 for attesting Wills.
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16.1 Conveyancing
Section 3 of the Transfer of Property Act, 1882 reads:
“Attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more
witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person
sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal
acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the
instrument in the presence of the executant; but it shall not be necessary that more than one of each witnesses shall have
been present at the same time, and no particular form of attestation shall be necessary.
The document or deed after the parties have signed, requires to be attested by two witnesses who sign the
document with the intention to attest it.
For a valid attestation four conditions are laid down, namely—
(i) attestation must be by two witnesses at least where it is so required.

(ii) the witnesses must sign in the presence of the executants.
(iii) they must sign at the direction of the executant.
(iv) the signature of the executant should be either made in the presence of the witness or if earlier made, it
should be admitted or acknowledged by the executant to the witnesses.
Under Section 3 of the Transfer of Property Act, it is not essential for the attesting witness to actually see the executant sign
the document in question. It is sufficient if the attesting witness receives from the executant a personal acknowledgement of
his signature or mark in the document in question and he (the attestor) signs the said instrument in the presence of the
executant.5
It is important to add that the attesting witness should put his signature for the purpose of attestation only and not in
any other capacity.
16.1.5 Interpretation of Deed
The intention of the parties to the Deed has to be gathered by considering the recitals and the terms and conditions
in the document in totality. The principles governing the construction of a document are:
(a) The entirety of the document must be read as a whole;

(b) The document must be so read as to give effect to the pre dominant intention of the executants;
(c) The document must be construed in such a manner as to make it workable and make it operative;6
(d) Where the words create some sort of uncertainty in the document, such words may be ignored and if two
interpretations of the document are possible then that interpretation maybe adopted which gives meaning
and effect to all parts of the document;
(e) It is the basic and well established principle of interpretation of documents that a deed should be read and
interpreted as a whole for ascertaining the true meaning of its several clauses. The interpretation of a part
of document should be in harmony with the other parts of the deed if such interpretation does not violate
the meaning, which can naturally be suspected. While interpreting a deed, it is the duty of the courts not to
confine to the force of a particular expression but to collect the intention of the parties from the whole of the
instrument taken together.
16.1.6 Stamping and Registration
No transaction under the deed is complete without proper stamping. Today practically all documents are required to
be stamped under the relevant stamp legislation, except in the case of Wills. A document is required to be stamped
before, or at the time of execution, or immediately thereof (Section 17 of Indian Stamp Act, 1899). The Indian
Stamp Act of 1899 is an all India Act. However, the stamp duty being a concurrent subject, many states have
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16.1 Conveyancing
passed their own stamp legislations. Therefore, the draftsman should have knowledge about the Stamp Act
provisions by which the parties are governed.
The object of the Indian Stamp Act is to increase revenue and its provisions must be construed as having in view
only the protection of revenue.
It is now well settled principle of law that the stamp duty is leviable on the instrument and not on the transaction. It is
the substance of the transaction and not the form of the instrument that determines the stamp duty. “If two
interpretations are possible, the one favourable to the person who is required to pay the tax or the duty will have to
be adopted.”7
A document which requires to be stamped, if not stamped adequately or at all, is not admissible in evidence before
any person having authority to receive evidence and shall not be acted upon or registered (Section 35 of the Indian
Stamp Act). A document not duly stamped cannot be admitted even for collateral purposes.8
Section 35 of the Stamp Act, read with section 91 of the Evidence Act excludes both the original instrument and
secondary evidence of its contents if it is unstamped or insufficiently stamped.
If a document is not stamped or properly stamped, it is liable to be impounded (Section 33 of Indian Stamp Act) and
the person executing the document is liable to be prosecuted and fined/punished (Section 62 of the Indian Stamp
Act).
16.1.7 Registration of Documents
The purpose of Registration Act, as disclosed in its provisions, is to provide information to people, who may deal
with property, as to the nature and extent of the rights which persons may have affecting that property; in other
words, it is to enable people to find out whether any particular piece of property, with which they may be concerned,
has been made subject to some particular legal obligation. There are other purposes of the Registration Act. One is
to give solemnity of form and legal importance of certain classes of documents by directing that they shall be
registered. Another purpose is to perpetuate documents which may afterwards be of legal importance; and the
general purpose is to put on record somewhere, where people may see the record and enquire, what the particulars
are and as far as land is concerned what obligations exist with regard to it. The purpose of this is to prevent fraud.9
All documents enumerated under section 17 of the Indian Registration Act, 1908 are required to be compulsorily
registered.
Section 17. Documents of which registration is compulsory.—
(l) The following documents shall be registered, if the property to which they relate is situate in a district in
which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian
Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act
came or comes into force, namely:—
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or
extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of
the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on
account of the creation, declaration, assignment, limitation or extinction of any such right, title or
interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a
yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award
when such decree or order or award purports or operates to create, declare, assign, limit or extinguish,
whether in present or in future, any right, title or interest, whether vested or contingent, of the value of
one hundred rupees and upwards, to or in immovable property:
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16.1 Conveyancing
Provided that the [State Government] may, by order published in the Official Gazette, exempt from
the operation of this sub-section any lease executed in any district, or part of a district, the terms
granted by which do not exceed five years and the annual rents reserved by which do not exceed
fifty rupees.
(1A) The documents containing contracts to transfer for consideration, any immovable property for
the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if
they have been executed on or after the commencement of the Registration and Other Related
laws (Amendment) Act, 2001 and if such documents are not registered on or after such
commencement, then, they shall have no effect for the purposes of the said section 53A.
(m) Nothing in clauses (b) and (c) of sub-section (l) applies to—
(i) any composition deed; or

(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such
Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or
extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the
holder to the security afforded by a registered instrument whereby the Company has mortgaged,
conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to
trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) any document other than the documents specified in sub-section (1A) not itself creating, declaring,
assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and
upwards to or in immovable property, but merely creating a right to obtain another document which will,
when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court 29 except a decree or order expressed to be made on a compromise
and comprising immovable property other than that which is the subject-matter of the suit or
proceeding; or
(vii) any grant of immovable property by 30 Government; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act,
1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the
repayment of a loan made under that Act; or
(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a
Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the
mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt
does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or
Revenue-Officer.
Explanation.—A document purporting or operating to effect a contract for the sale of immovable property
shall not be deemed to require or ever to have required registration by reason only of the fact that such
document contains a recital of the payment of any earnest money or of the whole or any part of the
purchase money.
(n) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall
also be registered.
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16.1 Conveyancing
A document which is compulsorily registrable and has not been registered can be used for collateral purposes and
such collateral purposes vary from case to case and can be determined by the facts of each particular case. The
crux of the matter is that all purposes other than those which try to create, declare, assign, limit or extinguish right,
title or interest in immovable property are collateral purposes.10
Registered document operates from the date of its execution and not from the date of its registration.11
16.1.8 Documents of which Registration is Optional
The registration of certain documents is optional under section 18 of the Registration Act, 1908.
18. Documents of which registration is optional—Any of the following documents may be registered under this Act,
namely:—
(a) instruments (other than instruments of gift and wills) which purport or operate to create, declare, assign,
limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent,
of a value less then one hundred rupees, to or in immovable property;
(b) instruments acknowledging the receipt or payment of any consideration on account of the creation,
declaration, assignment, limitation or extinction of any such right, title or interest;
(c) leases of immovable property for any term not exceeding one year, and leases exempted under section 17;
(cc) instruments transferring or assigning any decree or order of a Court or any award when such decree or
order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in
future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees, to
or in immovable property;
(d) instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any
right, title or interest to or in movable property;
(e) wills; and
(f) all other documents not required by section 17 to be registered.
16.1.9 Effect of Non-registration of Documents Required to be Registered
The consequences or effect of non registration of a document are stated under section 49 of the Registration Act.
49. Effect of non-registration of documents required to be registered—
No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered
shall—
(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has
been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property
Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under
Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected
by registered instrument.
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16.1 Conveyancing
A compulsory registrable document, if unregistered, is inadmissible only for a limited purpose mentioned in section 49(c),
namely, as evidence of a transaction affecting immovable property comprised therein. It is admissible for collateral purpose.
For any purpose other than that of creating, declaring, assigning. Limiting or extinguishing any right, title or interest in
immovable property.(Bai Gulab Bai Vs. Dattayarji, 9 Bom.L.R 393) Where a document, which as a whole, required
registration, contains separable parts which do not require registration, those parts may be admitted in evidence to prove
transactions which ex-hypothesi do not affect immovable property of the value of Rs. 100 or upwards.12
16.1.10 Time for Presenting Documents for Registration
Subject to the provisions of sections 24, 25 and 26 of the Indian Registration Act, a document other than a Will, is
required to be lodged for registration within four months from the date of its execution.
A copy of a decree or order may be presented within four months from the day on which the decree or order was
made or where it is appealable, within four months from the day on which it becomes final. In case a document is
executed by several persons at different times, it may be presented for registration and re-registration within four
months from the date of each execution.
16.1.11 Persons Who Can Present Document for Registration
A document for registration is required to be presented by:
a. A person executing or claiming under the document;

b. By the legal representative; or
c. Assignee of such person; or
d. By the agent of such person duly authorized by the power of attorney which is required to be executed only
before the sub-registrar.
The amending act of 48 of 2001 has inserted a new section 32(a) which provides that the person presenting a
document for registration as well as the executing parties must affix their passport size photographs and finger
prints on the document of registration.
The Registration Act, 1908 has been amended by several states wherein certain documents which are not required
to be registered under the said Act, are made compulsorily registrable and have incorporated various other
amendments which may be noted.
1 Goodeves Real Property (1929), p 72.

2 Halsbury’s Laws of England, 4th Edn, Vol 12, para 1305.
3 Deed & Document by GM Divekar, 9th Edn, p 11.
4 Birbal Singh v Harphool Khan, AIR 1976 All 23.
5 Sogra Khatun v Bhagaban Das, AIR 1977 Orissa 146.
6 Rabindra N Das v Santosh Kumar Mitra, AIR 1975 Cal 381.
7 Arundeep Singh v State of UP, (2005) 1 AWC 47.
8 Doddabasappa v Gurubasappa, AIR 2001 Kant 149 : 2001 (4) Kar LJ 104.
9 K Roy and Brothers v Ramanathdas, AIR 1945 Cal 37, p 40. Sanjeevarao’s Registration Act, 11th Edn, p 133.
10 Salam Rather v Mohd. Ganai, AIR 1964 J&K 46, p 49.
11 Principal Secretary, Government of Karnataka v Ragini Narayan, AIR 2016 SC 4545.
12 Hope Mills Ltd v Cawasji J Radheymoney, Bart, 13 Bom LR 162.
End of Document
16.2 Adoption
Dr Medha Kolhatkar
PROCEDURE > ADOPTION
ADOPTION
16.2 Adoption
The law relating to adoption is governed by the Hindu Adoption and Maintenance Act, 1956.
The concept of adoption is a unique and ancient practice among the Hindus wherein, for religious and secular
reasons a son was adopted. Muslims, Parsis and Christians have no adoption law. They can take children only for
foster care.
Under the prevalent law, for valid adoption, no religious ceremonies are required to be performed. The adopted
child should be actually given and taken in adoption and there cannot be any consideration at the time of giving or
taking the child in adoption. So once adoption is done it cannot be cancelled. There must be a physical delivery of
the child from him or her, who gives in adoption, to him or her who takes in adoption.
16.2.1 Requisites for a Valid Adoption under the Hindu Adoption and Maintenance Act, 1956
Section 6 of the Act speaks about the requisites of valid adoption. It reads as under:
6. Requisites of a valid adoption
No adoption shall be valid unless—
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.
16.2.2 Who Can Adopt
(a) Any male Hindu, who is not a minor or of unsound mind, can take a son or daughter in adoption.
(b) Any female Hindu, who is not a minor or of unsound mind, whether she is unmarried or divorcee or widow,
can take a male or female child in adoption as son or daughter.
(c) Either the father or the mother (if father is dead) or a guardian can give the child in adoption, the guardian
may be a legal or testamentary and de facto guardian.
(d) Any unmarried Hindu (except the one who is already adopted) and who has not completed 15 years of age
can be taken in adoption, barring any special custom to the contrary.
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16.2 Adoption
16.2.3 Who Cannot Adopt
(a) A person who has a son, or son’s son or son’s son’s son cannot adopt a son, and who has a daughter or
son’s daughter cannot adopt a son or daughter as the case may be (whether by legitimate blood
relationships or by adoption), living at the time of adoption,
(b) The age difference between adoptive father and adoptive daughter, or the adoptive mother and the
adoptive son cannot be less than 21 years.
(c) Same child cannot be adopted by two or more persons.
In case of adoption of an orphan, court’s order should be obtained as per section 9 of the Hindu Adoption and
Maintenance Act.
16.2.4 Persons Capable of Giving in Adoption
Section 9 of the Act speaks about the persons capable of giving in adoption. It reads as under:
9. Persons capable of giving in adoption.
(1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in
adoption.
(2) Subject to the provisions of sub-section (3) and sub-section (4), the father, if alive, shall alone have the
right to give in adoption, but such right shall not be exercised save with the consent of the mother unless
the mother has completely and finally renounced the world or has ceased to be a Hindu or has been
declared by a court of competent jurisdiction to be of unsound mind.
(3) The mother may give the child in adoption if the father is dead or has completely and finally renounced the
world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of
unsound mind.
(4) Where both the father and mother are dead or have completely and finally renounced the world or have
abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or
where the parentage of the child is not known, the guardian of the child may give the child in adoption with
the previous permission of the court to any person including the guardian himself.
(5) Before granting permission to a guardian under sub-section (4), the court shall be satisfied that the
adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of
the child having regard to the age and understanding of the child and that the applicant for permission has
not received or agreed to receive and that no person has made or given or agreed to make or give to the
applicant any payment or reward in consideration of the adoption except such as the court may sanction.
Explanation.—For the purposes of this section—
(i) the expressions “father” and “mother” do not include an adoptive father and an adoptive mother;
(ia) “guardian” means a person having the care of the person or a child or of both his person and property and
includes—
(a) a guardian appointed by the will of the child’s father or mother; and
(b) a guardian appointed or declared by a court; and
(ii) “court” means the city civil court or a district court within the local limits of whose jurisdiction the child to be
adopted ordinarily resides.
16.2.5 Inheritance Rights of an Adopted Child
The inheritance rights of an adopted child are similar to that of a natural born in the new family. Upon adoption, a
child loses his rights in the biological family but if a property vests in him before the adoption, then the property will
continue to be in his name.
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16.2 Adoption
16.2.6 Valid Adoption Cannot be Cancelled
Once a valid adoption is made it cannot be cancelled by the person taking in adoption or any other party to it. The
adoptee also cannot renounce the adoption and return to his or her family of birth (Section 15)
Though formal ceremony of giving and taking is essential ingredient for valid adoption, long duration of time during
which a person is treated as adopted cannot be ignored. Such fact by itself may carry a presumption in favour of
adoption.13
Burden of proving adoption is heavy and in the absence of documentary evidence in the support of adoption, court
should be cautious in relying upon oral evidence.14
16.2.7 Drafting of Deed of Adoption
(1) Adoption can be oral. However, considering the consequences of adoption, it is desirable that parties make
a record of adoption by executing an adoption deed.
(2) Full description and relevant information of the parties and the child, to be adopted, should be given.
(3) The only formality of adoption, i.e., that the child was actually handed over by the person giving in adoption
to the person taking in adoption with the intention to transfer the child from the family of birth to the
adoptive family, should be clearly mentioned in the adoption deed.
(4) It is necessary to obtain consent of the mother whose child is given in adoption and also the consent of the
wife of the adoptive father.
(5) When the parents of a child are not alive, or who are not known or traceable, then the legal guardian or
testamentary guardian, as the case may be, can give the child in adoption with the permission of the court.
16.2.8 Stamp Duty
Article 3 of the Indian Stamp Act, 1899 states the duty payable on an instrument recording an adoption or conferring
or purporting to confer an authority to adopt.
However, it is to be noted that no duty is payable if “Will” states the fact of adoption or if permission to adopt is
given by a Will.
16.2.9 Registration
It is not compulsory to register the adoption deed, except in Uttar Pradesh. However, as per section 16 of the Hindu
Adoption and Maintenance Act, 1956, if the adoption deed is executed and registered, there shall be a presumption
that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.
16.2.10 Specimen
Specimen No. I
ADOPTION DEED
DEED of ADOPTION is made at (place) on this____day of ___20—
BETWEEN
1) Mr.______________ Age________ Occupation ____________ Residing at ________, a Hindu by religion

(Hereinafter referred to as the party of the First Part,)
2) Mrs. ______ Age ___ Occupation ____ Residing at____________ a Hindu by religion (Hereinafter referred to as
the party of the Second Part)
AND
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16.2 Adoption
Mr._____ Age ___ Occupation ______ Residing at ____________ being the manager of the ___ orphanage at
_____, (Hereinafter referred to as the party of the Third Part)
WHEREAS,
(1) Mr._______ i.e. party of the first part and Mrs. ____ i.e. party of the second part are married for last 8
years and have no child.
(2) That the medical experts have opined that due to health complications in the party of first part and party of
second part they will not be able to have their natural child.
(3) The parties herein are therefore desirous of adopting a child and hence visited the ‘____(name)’
orphanage and have decided to adopt a boy by name _____ who is 1-year old.
(4) The said boy by name _______ was found abandoned on the steps of the temple at _______. The NGO by
name ______ brought the baby boy to the _____ orphanage.
(5) The orphanage officials and the police made all efforts to trace the parents of the boy but without any
success.
(6) An application to the court at _____(place)was made under section 9(4) and (5) of the Hindu Adoption and
Maintenance Act, 1956 by the manager of the _____ orphanage i.e. party of the third part and the Hon’ble
Court by its order dated _________ has authorised the party of the third part to give the said boy in
adoption to the party of first part.
(7) The party of the third part on ________ date delivered the said boy by name _________ to the party of the
first part with the intention to give the boy by name _____ in adoption and the party of the first part took
_____ (name) with the intention to take him in adoption as his son, in the presence of witnesses to this
deed.
(8) The party of the second part has given her full and free consent to the said adoption and endorses the
same by executing these presents.
NOW THIS DEED THEREFORE RECORDS THAT the party of the first part has taken the said boy by name
__________in adoption and the party of third part has given the said boy in adoption to the party of the first part as
authorised by the said court order dated ____.
IN WITNESSS WHEREOF, the parties hereto have put their hands on the day, month and year first hereinabove
written.
Signed by the First Part
Signed by the Second Part
Signed by Third Part
In the presence of –
(1)
(2)
Specimen No. II
ADOPTION DEED
(Adoption by an unmarried woman)
THIS DEED OF ADOPTION is made on _________ day of __________ BETWEEN

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16.2 Adoption
WHEREAS,
(i) The party of the first part is working as “Branch manager” in ____ bank, and she is __________ years old.
The party of the first part is unmarried and does not wish to marry in future.
(ii) The party of the second part is a widow and is diagnosed with advanced stage of cancer. The party of the
second part has a daughter by name _________, age _________ years.
(iii) The party of the first part and party of the second part are friends and know each other for almost 20 years.
The party of the first part thus knows Miss_________, and has agreed to take her in adoption.
(iv) That on __________ date at the residence of the party of second part, the party of the second part
delivered her only daughter by name ________ Age _______ years to the party of the first part with the
intention to give her in adoption to the party of the first part and the party of the first part took her with the
intention to take her in adoption as her daughter. The said informal function was attended by close family
friends who have attested this deed of adoption.
(v) Parties now are desirous of recording the said adoption as follows:
NOW IT IS THEREFORE DECLARED AND RECORDED AS FOLLOWS
(1) That on ________ date the party of the second part the natural mother of _________ Age____ years gave
the custody of her daughter to the party of the first Part with the intention to give her in adoption and the
party of first Part took the custody of the girl; i.e. ________, with an intention to take her in adoption and
has now become her adoptive mother.
(2) The parties hereby declare that the said daughter i.e.______ has now ceased to be a member of ______
family i.e. party of the second part.
(3) The said girl child ______ will now be known by the name of ______.
IN WITNESS WHEREOF the parties have put their hands on the date written hereinabove.
Signed by Party of the First Part
Signed by Party of the Second Part
(1)
(2)
13 Kamala Rani v Ram Lalit Rai, (2018) 9 SCC 663.

14 Ratanlal v Sundarabai Govardhandas Samuka, AIR 2017 SC 5797.
End of Document
16.3 Arbitration
Dr Medha Kolhatkar
PROCEDURE > ARBITRATION
ARBITRATION
16.3 Arbitration
Settlement of disputes by means of alternative dispute resolution mechanism has gained momentum in today’s
techno-commercial era. Arbitration is one of the most common and popular forms of Alternate Dispute Resolution,
today. Arbitration is a reference to the decision of one or more persons, either with or without an empire, of a
particular matter pertaining to which a dispute has arisen between the parties. The provisions of arbitration are
governed by the Arbitration and Conciliation Act, 1996 (as amended from time to time, i.e., 2015 and 2019).
16.3.1 Arbitration Agreement
Arbitration agreement is the foundation stone on which the entire edifice of the arbitral process is structured. The
jurisdiction of the arbitral tribunal emanates from the agreement between the parties. The arbitration agreement
prescribes the parameters of the scope and extent of the arbitral jurisdiction to decide any or all the disputes
comprehended by it.15
In an arbitration agreement, it is essential that the parties should intend to make a reference or submission to
arbitration, and should be ad idem in this respect. No particular form is necessary.
An arbitration agreement is defined under section 7(1) of the Arbitration and Conciliation Act, 1996 as follows:
7. Arbitration agreement.—
(1) In this part, “Arbitration agreement” means an agreement by the parties to submit to arbitration all or
certain disputes which have arisen or which may arise between them in respect of a defined legal
relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a
separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is contained in–
(a) A document signed by the parties;
(b) An exchange of letters, telex, telegrams or other means of telecommunications (including
communication through electronic means) which provide a record of the agreement; or
(c) An exchange of statements of claim and defence in which the existence of the agreement is alleged by
one party and not denied by the other.
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16.3 Arbitration
(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration
agreement if the contract is in writing and the reference is such as to make that arbitration clause part of
the contract.
From the above definition, it becomes clear that an arbitration agreement has to be in writing, and it will be inferred
that there is an arbitration agreement in writing when the parties have duly signed the agreement, or exchange of
correspondence indicates so, as is stated under section 7(4)(b) of the Act. When there is an exchange of statement,
claim and defence, and one of the parties asserts arbitration agreement and the same is not denied by the other, it
shall be presumed that there is an arbitration agreement between the parties.
The terms of the arbitration agreement must be clear and certain. An arbitration agreement is void if its terms are
uncertain or there is no clear reference of arbitration. The words in the agreement and conduct of the parties should
disclose a determination and obligation to go for arbitration and not merely contemplation or possibility for going to
arbitration. An arbitration agreement has to be in writing even though it may not be signed by the parties.16
An agreement even if not signed by the parties can be spelt out from the correspondence exchanged between the
parties.
A perusal of section 7(4)(b) and (c) would show that a written document which may not be signed by the parties
even then it can be an arbitration agreement. In present day of e-commerce, internet purchases, tele purchases,
ticket bookings on internet and in standard forms of contract, terms and conditions are agreed upon. In such
agreements, if the identity of the parties is established, and there is a record of agreement, it becomes an
arbitration agreement if there is an arbitration clause showing ad idem between the parties. Therefore, signature is
not a formal requirement under section 7(4)(b) or section 7(4)(c) or under section 7(5) of the Act.17
Reference to arbitration can be made even when there is an arbitration clause in the contract document executed
between the parties. Therefore, an arbitration agreement is an agreement to submit disputes, which have arisen or
which may arise, at present or in future, to arbitration. An agreement to refer future disputes to arbitration is valid
and binding.
The burden of proving the arbitration agreement lies on the party asserting it18 once this is satisfied, then the burden
of proof shifts on the other party to prove that the arbitration agreement cannot be relied upon.
16.3.2 Arbitration Clause—Interpretation
The rules of interpretation require that an arbitration clause should be read in the ordinary and natural sense except
where that would lead to an absurdity. No part of a term/clause should be considered as a meaningless surplusage
when it is in consonance with the other parts of the clause and expresses the specific intention of the parties.19
16.3.3 Form of Arbitration Agreement
The Hon’ble Supreme Court in Rukmanibai Gupta v The Collector, Jabalpur, has laid down that the “Arbitration
Agreement is not required to be in any particular form. What is required to be ascertained is whether the parties
have agreed that if disputes arise between them in respect of the subject-matter of contract such disputes shall be
referred to arbitration, then such an arrangement would spell out an arbitration agreement.”20
16.3.4 Drafting of Arbitration Agreement
Arbitration agreement can broadly be put in two categories:
(1) A separate or independent agreement executed by the parties thereby consenting to refer all their disputes
to arbitration pertaining to a contract executed between them.
(2) By way of a clause in a contract document, wherein, it is mutually agreed to refer disputes arising under
that contract to arbitration.
It is not necessary to name the arbitrator in the clause or agreement; parties may state a name of sole arbitrator in
the agreement or clause, as the case may be.
It is an essential condition to invoke the arbitration agreement that a dispute has arisen between the parties. A
Page 3 of 7
16.3 Arbitration
dispute is said to be between the parties when there is a claim, of one party and a denial or repudiation of the said
claim by the other party.
An Arbitration Agreement must have the following details:
1) Details of the contracting parties

2) Brief details as to the nature of activity of the parties to the contract
3) Mention the nature of relationship between both the parties to the agreement
4) Nature of disputes which can be referred to the Arbitral Institution/sole arbitrator/Arbitration Tribunal
5) The procedure of referring the disputes
6) Period of notice before invoking arbitration agreement
7) The place of arbitration
8) The qualifications of the arbitrator/s, the powers and the process of their appointment
9) The language in which the arbitration proceedings to be conducted
10) Time frame within which the award must be made
11) Covenant as to costs of Arbitration
(To be borne by one party or by both the parties. Generally, the cost of Arbitration is split between the
parties and may be claimed as a part of the award.)
12) Stamp Duty and other incidental charges incurred at the time of an execution are to be borne equally by
both the parties
13) At end the place and date of the execution of the agreement and the signatures of the parties to the
Arbitration Agreement
16.3.5 Stamp Duty
Arbitration agreement is a form of an agreement which requires to be stamped like an ordinary agreement, and is
chargeable with a duty as stated under Article 5(c) of the Indian Stamp Act.
16.3.6 Registration
Arbitration agreement is not required to be registered even when the scope of the dispute relates to immovable
property because an arbitration agreement does not create a right, title or interest in the immovable property.
However, an award which purports or operates to create or declare, assign, limit or extinguish, whether at present
or in the future, any right title or interest, whether contingent, of the value of rupees one hundred and upwards to an
immovable property, is to be registered compulsorily under section 17(1)(b) of the Registration Act.21
16.3.7 Specimen
Specimen No. I
This Arbitration Agreement is made and executed on this _________ day of __________ at (place)__________
BETWEEN
Mr. P
Age: ___________;
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16.3 Arbitration
Residing at: __________
Hereinafter referred to as Party of the One Part
(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his heirs,
executors, administrators and assigns).
And
M/S. ST Firm
Through its proprietor
Mr. Q
Age: ___________;
Hereinafter referred to as Party of the Other Part
WHEREAS Mr. P is the owner of the property situated at _________ bearing S. No. __________ admeasuring
__________ Sq. mtrs and more particularly described in the schedule herein below stated.
AND WHEREAS Mr. P i.e. party of the one part is desirous of constructing a bungalow at the aforestated premises.
AND WHEREAS the party of other part i.e. Mr. Q is a contractor by profession and carries on construction work on
contract basis under his proprietary firm name ______________
AND WHEREAS the party of other part has agreed to construct a bungalow as per the specifications annexed to
this agreement and the parties have also entered into an agreement dated ___________ regarding the terms and
conditions of the construction of the said bungalow at _____________.
AND WHEREAS the parties have mutually agreed to resolve any/all dispute/s arising under the agreement dated
_____________ by means of arbitration.
NOW THEREFORE THIS AGREEMENT WITNESSES AS UNDER:—
(1) That if any dispute arises out of the agreement dated ___________ or with respect to interpretation of any
clause/s under the said Agreement then the dispute so arisen shall be referred to the sole arbitrator Mr.
__________, Age: _________, Residing at :__________ and that the decision of the said Arbitrator shall be binding
on both the parties.
(2) The parties agree to submit to arbitration as per the Arbitration Act of 1996 or any other law which becomes
applicable to the parties.
(3) That the said sole arbitrator shall make his award within a period of three months from the date of service of a
copy of this agreement by any of the parties hereto, provided that, the arbitrator will have power to extend the said
period from time to time with mutual consent of both the parties.
(4) That the Arbitrator will be bound to give reasons for the award and the place of Arbitration shall be at
___________place.
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16.3 Arbitration
(5) That the arbitrator shall make such inquiries and shall call upon such evidences as he deems fit for the
determination of the dispute between the parties.
(6) That the parties agree that this arbitration reference shall not be revoked in the event of death of either parties.
(7) The parties further agree that in case Mr.-----, the sole arbitrator stated hereinabove is unable to act as arbitrator
for any reason then the parties by mutual consent shall substitute the named arbitrator herein.
SCHEDULE OF THE PROPERTY
All that piece and parcel of land bearing S. No. ______ admeasuring ______ Sq. mtrs. situated at ____________
within the local limits of ________ Municipal Corporation and is bounded as under:
ON OR TOWARDS:
East :
West :
North:
South:
IN WITNESS WHEREOF, the parties have signed this agreement on the date mentioned hereinabove.
Sd of Party of the One Part
Sd. of Party of the Other Part through its proprietor
In presence of
Witness No. 1
Witness No. 2
Specimen No. II
This Arbitration Agreement is made on this _________ day of ________ at (Place)
BETWEEN
_____ Pvt Ltd Company
(Incorporated under the provisions of the
Indian Companies Act, 1956/2013
Having its registered office at _____________________________ Party of the First Part through its Director, name
_____ age _____ residing at __________
Hereinafter referred to as Party of the First Part
(which expression shall, unless repugnant to the context or meaning thereof shall mean and include its successors,
AND
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16.3 Arbitration
_____ Pvt Ltd Company
(Incorporated under the provisions of the
Indian Companies Act, 1956/2013
Having its registered office at ______________ Party of the Second Part through its Director, name _______ age
_______ residing at __________
Hereinafter referred to as Party of the Second Part
(which expression shall, unless repugnant to the context or meaning thereof shall mean and include its successors,
WHEREAS
i) The party of the First part and the party of the Second part have entered into an agreement dated
________ for the supply of (describe the goods) by the party of the Second part to the party of the First
part.
ii) The party of the First part and the party of the Second part have agreed to resolve any/all disputes which
may arise, pertaining to any aspects of the Agreement dated._______ by means of Arbitration.
NOW THIS AGREEMENT WITNESSES AS FOLLOWS:-
The parties to this agreement hereby covenant and declare that:
(1) In the event of any dispute/s of every nature and kind both the abovementioned parties in respect of the
Agreement dated_____, executed on_______ dt between the aforesaid parties including but not limited to
the existence, validity, meaning and interpretation, enforcement, operations, performance, non-
performance, breach, continuance or termination of the agreement shall be referred to arbitration.
(2) It is further stipulated that after a dispute has arisen, either party may demand the arbitration proceedings
to commence in writing within ______ days with the details of the dispute stated in the said notice.
(3) The language of the arbitration proceedings shall be (Language).
(4) The place of the arbitration shall be ______ city.
(5) That the arbitrator/s shall make such inquiries and shall call upon such evidences as deems fit for the
determination of the dispute between the parties.
(6) Any amendments or modifications in the agreement or any additional obligation in connection with this
agreement shall be binding only in case the following is in writing and is signed by each party.
(7) The terms of this agreement serves as a bar to any suit, actions or proceeding instituted in any other court
with regard to the disputes which require being referred to arbitration as per this agreement.
(8) The parties agree to submit to Arbitration as per the Arbitration Act of 1996 as amended or any other
arbitration law that becomes applicable to the parties.
IN WITNESS WHEREOF the parties have signed this agreement on the date first written hereinabove.
Sd of the First Part
Sd of the Second Part
(1)
(2)
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16.3 Arbitration
Specimen No. III
16.3.8 Arbitration Clause
All the disputes and differences which may arise between the parties hereto, including any dispute or difference
pertaining to the interpretation of any provision or terms and conditions or the meaning thereof or with regard to any
claim made by one party against the other or with regard to the rights and obligations of any party/s hereto under
this agreement or otherwise, howsoever, the same shall be referred to the sole arbitrator if agreed upon by the
parties to this agreement or otherwise to two arbitrators wherein each party will appoint an arbitrator of their choice
and the two so appointed arbitrators would appoint an umpire to resolve the dispute or difference arisen and that
such arbitration shall be governed by the provisions of the Arbitration Act for the time being in force.
Specimen No. IV
Arbitration Clause for resolving disputes in a partnership firm
The parties/partners to the Partnership Deed dated _____ hereby declare and agree that the undermentioned
disputes shall be resolved and decided by the process of arbitration.
i. Disputes arising from the interpretation of any of the clauses enumerated in the partnership deed dated
______;
ii. Disputes among the partners in respect of their powers, functions, liabilities and responsibilities;
iii. Disputes pertaining to the running of the business of the firm among the partners;
iv. Disputes requiring dissolution of the firm;
It is hereby agreed that sole arbitrator shall be selected and appointed by the parties to the dispute who will act and
conduct the proceedings, in accordance with the Arbitration and Conciliation Act, 1996.
15 The Law and Practice of Arbitration, Indu Malhotra, 3rd Edn, p 354.
16 Tranvancore Devaswom Board v Panchamy Pack Pvt Ltd, 2004 13 SCC 510.
17 Govind Rubber Ltd v Louis Dreyfus Commodities Asia, Pvt Ltd, (2015) 13 SCC 477.
18 UC Aggarwal v Container Corp, AIR 2006 Delhi 199.
19 National Agricultural Co-op Marketing Federation India Ltd v Gains Trading Ltd, AIR 2007 SC 2327 : 2007 (5) SCC 692.
20 Rukmanibai Gupta v The Collector, Jabalpur, AIR 1981 SC 479 : (1980) 4 SCC 556 : 1980 (12) UJ 988 SC.
21 Lachhman Dass v Ram Lal, AIR 1989 SC 1923 : 1989 SCR (2) 250.
End of Document
16.4 Gift
Dr Medha Kolhatkar
PROCEDURE > GIFT
GIFT
16.4 Gift
A gift is defined under section 122 of the Transfer of Property Act, 1882 as a transfer of certain existing movable or
immovable property made voluntarily and without consideration by one person called the donor, to another called
the donee, and accepted by or on behalf of the donee.
Therefore, the essentials of a valid gift are:—
(a) Gift is a transfer of an existing property (movable or immovable), by the owner/donor to the donee.
(b) It must be made voluntarily and without consideration.
(c) It should be accepted by or on behalf of the donee.
(d) The acceptance of the gift must be during the life of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.
16.4.1 Donor and Donee
The donor is a person who gives. Any person who is sui juris can make a gift of his property.
On behalf of the donor the essential ingredient is that he should voluntarily and without consideration transfer the
property to the donee and the giving away implies a complete divesting of the ownership in the property by the
donor.
The donee is a person who accepts the gift. A gift may be accepted by or on behalf of a person who is not
competent to contract.
16.4.2 Subject Matter of Gift
As stated above, the subject matter of the gift must be certain existing, movable or immovable property.
16.4.3 Forms of Gift
A gift may be made of any of the forms—
16.4.3.1 A Permanent gift
When a gift is unconditional or unqualified it will be a permanent lifetime gift.

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16.4 Gift
16.4.3.2 A conditional or revocable gift
When the gift is conditional; it would be void if the condition is not fulfilled.
16.4.3.3 Mortis Causa
When the donor makes a gift in contemplation of death it is called gift mortis causa.
A donor who makes a gift cannot give away more than what he is entitled to. A gift deed divests the donor of all his
rights, titles and interests in the property gifted.
16.4.4 Proving of Gift
In the absence of any specific denial to the execution of the gift deed, it was held by the court that it is not
mandatory for the donee to examine one of the attesting witnesses to the gift deed to prove it.22
16.4.5 Drafting of Deed of Gift
(1) A gift deed is similar to a deed of conveyance, as in both cases there is a transfer of property. The
significant difference between the two is as to consideration. A gift deed is without consideration, or the
consideration is generally of natural love and affection between the parties.
(2) A gift deed should unambiguously describe the property gifted. A gift deed should be of existing property
only. If any future property is included it will be void to that extent.23
(3) A gift has to be accepted by the donee. Therefore, it is desirable to make donee not just a party but an
executing party to the deed. However, if the donee is a minor, in such a case his guardian can accept the
gift on his behalf.
(4) A gift deed must include a clause that physical possession of movable or immovable property has been
given to the donee.
(5) A gift may be made revocable on the happening of certain specific event, which does not depend on the
will of the donor. Such clause can be added wherever applicable and necessary.
(6) A gift has to be absolute and therefore, the donor should gift the property absolutely without reserving any
right for himself in the gifted property.
(7) Gift can be made only by a person who is competent to contract. A minor cannot make a gift unless the
minor’s guardian is authorised to do so.
(8) As per section 123 of Transfer of Property Act, 1882, for the purpose of making a gift of immovable
property, the transfer may be effected either by a registered instrument signed by or on behalf of the donor
and attested by at least two witnesses. For the purpose of making a gift of movable property, the transfer
may be effected either by a registered instrument singed as aforesaid or by delivery. Such delivery maybe
made in the same way as goods sold maybe delivered.
(9) Where a Gift is in the form of a single transfer to the same person of several things of which one is, and the
others are not burdened by an obligation, the donee can take nothing by the gift unless he accepts it fully.
Where a gift is in the form of two or more separate and independent transfers to the same person of
several things, the donee is at liberty to accept one of them and refuse the others, although the former may
be beneficial and the latter onerous gift to disqualified person.—A donee not competent to contract and
accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming
competent to contract and being aware of the obligation, he retains the property given, he becomes so
bound.24
16.4.6 Gift under Muslim Law
The provisions of the Transfer of Property Act, 1882 regarding gift are inapplicable to the Mohammedans. The
Muslim law recognises an oral gift as valid even with respect to immovable property. As per Muslim law, gift is a
transfer of property without consideration, without duration and it is unconditional. The donee must accept the gift.
The other important requirement of gift is delivery of possession. The delivery of possession may be actual or
constructive.
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16.4 Gift
16.4.7 Registration of Gift
(a) A gift of immovable property must be made by a registered deed. However, if the deed is registered but the
gift is not accepted by the donee, the mere registration will not make it valid.25
(b) A Muslim can make an oral gift of an immovable property but where it is recorded in writing, the deed is
required to be registered.
(c) A gift of movable property can be made by actual delivery of the property or by a registered deed.
16.4.8 Execution of Gift
A deed of gift must be signed by the donor. The donor’s signature must be attested by at least two witnesses. The
donee has to sign the gift to endorse his acceptance.
The gift cannot be evidenced by consideration, same cannot be valid, within the meaning of section 122 of the
Transfer of Property Act. But it is clear from the document itself that no consideration is passed on as per the
registered gift deed. Mentioning of Rs. 5,000/- in the first page for the purpose of valuation cannot be said to be
consideration received by the donor for executing the gift deed.26
16.4.9 Stamp Duty
Stamp duty on a deed of gift is the same as on a deed of conveyance.
16.4.10 Specimen
Specimen No. I
GIFT DEED
(MOVABLE PROPERTY)
THIS DEED OF GIFT, made on this _______ day of ____ 20 ________ BETWEEN
Mrs. __________
Age: _________,
Occupation: __________,
PAN: ________
(Hereinafter called the Donor)
(which expression shall, unless repugnant to the context or meaning thereof shall mean and include her heirs,
executors, administrators and assigns)
Party of the First Part
AND
Mrs. __________
Age: _________,

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16.4 Gift
PAN: ________
(Hereinafter called the Donee)
(which expression shall, unless repugnant to the context or meaning thereof shall mean and include her heirs,
Party of the Second Part.
WHEREAS
i. The donor owns a collection of 30 books on ______ subject and 7 paintings which she has purchased from
time to time out of her own funds and means.
ii. The donor is a childhood friend of the donee and the donor bears natural love and affection for the donee
and therefore intends to gift her the said books and the paintings unto the donee.
AND WHEREAS the donee is ready and willing to accept the gift of the donor.
NOW THIS DEED WITNESSES as follows:
i. That the donor out of her natural love and affection for the donee does hereby makes a gift of her 30 books
on _______subject and 7 paintings described in further details in the schedule hereunder unto the donee
absolutely and forever as the owner thereof.
ii. That the donee does hereby accept the said gift made to her by the donor.
i) List of books
ii) Description of 7 paintings
IN WITNESS WHEREOF the parties have signed hereunder on the date and the place first abovementioned.
Sd of Donor
Sd of Donee
In the presence of
1.
2.
Specimen No. II
GIFT DEED
(Immovable property)
THIS DEED OF GIFT, made on this __________ day of 20________ BETWEEN
Name _______;
Age: _________,

Page 5 of 6
16.4 Gift
PAN: ________
(Hereinafter called the Donor)
AND
Name _______;
Age: _________,
PAN: ________
(Hereinafter called the Donee)
Party of the Second Part
WHEREAS the donor, that is the party of the first part is the absolute and exclusive owner of the property bearing
CTS No. ___________ admeasuring ______________ Sq. Ft. and more particularly described in detail in the
schedule herein below. The value of the aforesaid immovable property is Rs. __________/. The donor is also in
physical possession of the aforesaid property.
WHEREAS the said property is the self acquired property of the donor purchased and acquired by him out of his
own funds and means.
WHEREAS the donee is the donor’s elder brother’s son by name Mr. ___________ i.e. the donee is the nephew of
the donor. The donee has been residing with the donor since the donee was 10 years old i.e. from _________ year.
The donor has no children of his own. The donor has great love and affection for the donee and is therefore
desirous of gifting the property mentioned above and more particularly described in the schedule herein below to
the donee out of natural love and affection.
WHEREAS the donee is ready and willing to accept the gift of the said property, if made to him by the donor.
NOW THIS DEED OF GIFT WITNESSES AS FOLLOWS:
1. That in pursuance of the intention and desire and in consideration of natural love and affection which the
donor has for the donee, the donor out of his free will, without any fraud, coercion, undue influence, etc.,
from any person whomsoever and in full possession of his senses does hereby gift, convey, grant, transfer
and confirm to the donee the property bearing No. _____, admeasuring ________ together with all
privileges, profits, advantages and all their appurtenances whatsoever to the said tenements,
hereditaments and premises TO HAVE AND TO HOLD the premises hereby gifted unto and to the use of
the donee forever and absolutely.
2. That the donee may from time to time and at all times hereafter quietly and peaceably without any
obstruction or hindrance from any person upon, have, hold, occupy, possess and enjoy the property
hereby gifted and receive and take the rents and profits thereof absolutely and forever.
3. That the donor does hereby declare and confirm that he the donor, shall not have any right, title or interest
in or over the said property or any part thereof.
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16.4 Gift
4. That the donor does hereby assures unto the donee that the donor has clear and marketable title to said
property and the same is free from encumbrances and also that it is not a subject matter of any pending
litigation, acquisition or requisition proceedings.
5. That the donor also assures the donee that all the taxes, cesses, charges and assessments payable in
respect of the said property have been duly paid upto date by the donor.
6. That the donee hereby accepts the said gift made to him by the donor by executing these presents.
SCHEDULE OF THE IMMOVABLE PROPERTY GIFTED
All that piece and parcel of the land___________ admeasuring ____________ Sq. mtrs. situate within registration
division and district __________ sub-division and Taluka ___________, within the limits of ________ Corporation,
bearing CTS No. _______ plot No. ________ carved out of the layout of S. No. ___________ alongwith a building
standing thereon admeasuring __________ Sq. mtrs. And bounded by as follows
On or towards
East :
South:
West :
North:
IN WITNESS WHEREOF the parties have signed hereunder on the date and the place first abovementioned
Signature of Donor
Signature of Donee
Witness
(1)
(2)
22 Govindbhai Chhotabhai Patel v Patel Ramanbhai Mathurbhai, AIR 2019 SC 4822.

23 Section 124 of Transfer of Property Act, 1882.
24 Section 127 of Transfer Property Act, 1882.
25 Chennupati Venkatasubbamma v Nelluri Narayanaswami, AIR 1954 Mad 215.
26 Jagdish Chander v Satish Chander, decided on 27 February 2019 by the Supreme Court.
End of Document
16.5 Indemnity
Dr Medha Kolhatkar
PROCEDURE > INDEMNITY
INDEMNITY
16.5 Indemnity
Indemnity means a formal legal acceptance of responsibility against damage or loss. “A contract by which one party
promises to save the other from loss caused to him by the conduct of the promisor himself or by conduct of any
other person, is called a “contract of indemnity.” ”27
Distinction between Indemnity and Guarantee:—
Indemnity is express or implied, to keep a person who has entered, or is about to enter, into a contract of liability
indemnified against the liability independently of a question whether a third person makes default or not, it differs
from a guarantee which is a promise to pay the creditor if the principal debtor makes default in payment. A contract
of guarantee is rendered void without valid consideration.
16.5.1 Extent of Liability of the Indemnifier
The indemnifier is liable to make good his promise only when the indemnified suffer actual loss. Section 125 of
Indian Contract Act states as follows:
125. The Promisee in a contract of Indemnity, acting within the scope of his authority, is entitled to recover from the
Promisor:
(i) all damages which he may be compelled to pay in any suit in respect of any matter to which the promise to
indemnify applies;
(ii) all costs which he may be compelled to pay in any such suit, if in bringing or defending it, he did not
contravene the orders of the Promisor, and acted as it would have been prudent for him to act in the
absence of any contract of indemnity, or if the promisor authorised him to bring or defend the suit;
(iii) all sums which he may have paid under the terms of any compromise of any such suit, if the Compromise
was not contrary to the orders of the Promisor, and was one which it would have been prudent for the
Promisee to make in the absence of any contract of Indemnity, or if the Promisor authorised him to
compromise the suit.
The purpose of contract of Indemnity is to ensure that the other party to the contract is safe from any loss caused,
damages or costs required to be paid in any proceedings. It is a remedial measure and it is compensatory in nature.
16.5.2 Form of Indemnity
An indemnity can be executed either as a clause inserted in any other deed or it can be a separate indemnity bond.
When an indemnity is given in the form of a bond, it is in the form of an agreement or an undertaking. Indemnity
may be against any loss, costs, charges and expenses suffered by the indemnified without specifying the amount,
Page 2 of 4
16.5 Indemnity
or the liability may be limited to a specific amount.
16.5.3 Stamp Duty
Under the Stamp Act an agreement of Indemnity to make good the loss or damages is chargeable with stamp duty
as on an agreement, and in case of a bond, the stamp duty is payable depending on the nature and type of the
bond as stated under the Stamp Act. When indemnity is given as a clause in a deed then the duty is payable as on
the deed.
16.5.4 Registration
An Agreement of Indemnity or an Indemnity bond need not be registered unless it creates a charge on an
immovable property.
16.5.5 Specimen
Specimen No. I
Deed of Indemnity
THIS DEED OF INDEMNITY is made and executed at _________on this _____ day of ____________, 20____
BETWEEN
Mr. __________
Age: _________
Occupation: _____________
Residing at: _______________________________
PAN:____________
(Hereinafter referred to as “the Indemnifier”),
(which expression shall, unless repugnant to the context, mean and include his heirs, executors, administrators and
assigns).
Party of the One Part
And
Mr. __________
Age: _________
Occupation: _____________
Residing at: _______________________________
PAN:____________
(Hereinafter referred to as “the Indemnified”),
(which expression shall, unless repugnant to the context, mean and include his heirs, executors, administrators and
assigns)
Party of the Other Part

Page 3 of 4
16.5 Indemnity
WHEREAS party of the one part has executed Sale Deed in favour of party of the other part dated ____________
and the same is registered in the office of Sub-Registrar at Sr. No. _____________.
AND WHEREAS the property bearing CTS No. ____________ admeasuring ________Sq. mtrs. together with the
structure standing thereon and as fully described in the schedule written herein below and hereinafter referred to as
the said property is the property which has been sold to the party of the other part by the party of the one part as
Karta of the said property which is a coparcenary property.
AND WHEREAS the party of the one part had assured and represented to the party of the other part that the said
property is sold for legal necessity and for the benefit of the estate and the other coparceners are also a party to the
aforestated sale deed of the said property.
AND WHEREAS the party of the other part is desirous of executing an indemnity deed from the party of the one
part in case of any cross claims in future or other losses caused to the other party.
AND WHEREAS as the sale deed has been executed between the parties and consideration has been received by
the party of the one part, the party of the one part agreed to execute this deed of Indemnity in favour of the party of
the other part.
NOW THEREFORE THIS DEED OF INDEMNITY WITNESSES AS UNDER:
(1) That the party of one part hereby declares and undertakes to indemnify and to keep indemnified the party
of the other part for any loss or damage caused to the party of the other part or to his successors entitled
with respect to the said property.
(2) That the party of one part hereby undertakes that in case of any dispute arising regarding the title of the
said property and any loss or damage is caused to the party of the other part or its nominees, the party of
one part shall indemnify and compensate the party of the other part to that effect.
SCHEDULE OF PROPERTY
All that piece and parcel of the ___________ admeasuring ____________ Sq. mtrs. situate within registration
division and district __________ sub division and Taluka ___________, within the limits of ________ Corporation,
bearing CTS No. _______ plot No. ________ carved out of the layout of S. No. ___________ alongwith a building
standing thereon admeasuring __________ Sq. mtrs. And bounded by as follows
On or towards
East :
South:
West :
North:
IN WITNESS WHEREOF the parties hereto have signed on the day and date first hereinabove written.
Signature of Party of the One Part Signature of Party of the Other Part
Witness
1. ________
2. ________
Specimen No. II
INDMENITY BOND
Page 4 of 4
16.5 Indemnity
I Mr.___________________ Age: ___________ Occupation ___________ Residing at _______________, do

hereby execute this Indemnity Bond and hereby declare and confirm as follows:
(1) That in consideration of supplies made by ABC Firm having its registered office at _______________ vide
purchase order No.________ dated ____________ the said firm had issued me a cheque of Rs.
____________/-.
(2) That I have lost my bag which had the said cheque in it and I have lodged a police complaint regarding the
same on _________ date at __________ police station.
(3) That on my request ABC Firm has issued me a second cheque of the same amount against the cheque
which has been lost.
(4) That I hereby undertake to indemnify the said ABC firm in the event of the earlier cheque being presented
to and paid by the Bank and further indemnify the said firm against all expenses which may be incurred by
it in relation thereto.
IN WITNESS WHEREOF I HAVE SIGNED HEREUNDER ON THIS __________DAY OF ____________ 20 ____
Indemnifier
I know the indemnifier
Advocate
27 Section 125 of Indian Contract Act.
End of Document
16.6 Lease
Dr Medha Kolhatkar
PROCEDURE > LEASE
LEASE
16.6 Lease
The expression “lease” has been defined under section 105 of the Transfer of Property Act, 1882 as:
A lease of immovable property is a transfer of a right to enjoy such property, made for certain time, expressed or implied, or
in perpetuity, in consideration of price paid or promised, or of money, a share of crops, service or any other thing of value,
to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such
terms.
From the above definition, therefore, it can be inferred that by a deed of lease, what is transferred by the lessor or
the owner to the lessee is his right to enjoy the property, subject to the terms of the lease. Therefore, by a deed of
lease what is transferred by a lessor to the lessee is the right to enjoy and to possess the demised premises and
not the whole or any other part of the rights of ownership of the lessor. A lease is not a mere contract but is a
transfer of an interest in land, and creates a right in rem.
A lease must have some period for its duration, though the period may be in perpetuity. A lease without a period
would be void.28
16.6.1 Lessor, Lessee, Premium and Rent Defined
The transferor/owner is called the lessor and the transferee is called the lessee. The price is called the premium
and the money, share, service or other thing to be so rendered is called the rent.
The expression lease and tenancy are used interchangeably many a times. Generally, the expression lease is used
when the premises are given for a longer period, i.e., more than a year or so. Thus, a tenancy for more than a year
is generally called lease, though no distinction has been made by law.
A lease of an immovable property from year to year, or for a term exceeding one year, or reserving yearly rent can
be made by a registered instrument. All other forms of leases can be made either by oral agreement, or by delivery
of possession, or by registered instrument.
16.6.1.1 Section 106
According to section 106, in the absence of a contract or local law or usage to the contrary a lease of immovable
property for agricultural or manufacturing purposes, shall be deemed to be a lease from year to year. The same can
be terminable on the part of either the lessor or lessee by six months’ notice and all other leases shall be deemed to
be from month to month, terminable on the part of either lessor or lessee by fifteen days’ notice. Existence of a valid
lease a pre-requisite to invoke the rule of construction embodied in section 106.
16.6.2 Rights and Liabilities of the Lessor

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16.6 Lease
(a) The lessor is bound to disclose to the lessee any material defect in the property, with reference to its
intended use, of which the former is and the latter is not aware and which the latter could not with ordinary
care discover.
(b) The lessor is bound on the lessee’s request to put him in possession of the property.
(c) The lessor shall be deemed to contract with the lessee that if the latter pays the rent, reserved by the lease
and performs all the obligations binding on the lessee, he may hold the property during the time limited by
the lease without interruption.
16.6.3 Rights and Liabilities of the Lessee
The Lessee’s rights and liabilities are stated hereunder.
(a) The lessee is bound to pay rent.

(b) The lessee is entitled to pay taxes and outgoings (subject to any agreement to the contrary).
(c) The lessee is entitled to use the land for the purpose for which the lease is given and for no other purpose.
(d) The lessee is bound to keep the property in good condition subject to normal wear and tear.
(e) The lessee is bound to adhere to all municipal rules and regulations governing the property and the use
thereof.
(f) The lessee is bound to allow the lessor or his agent to inspect the property.
(g) The lessee is bound not to use the property in such a manner as would be dangerous or hazardous or
amount to nuisance to the adjoining owners or occupiers.
(h) The lessee is bound to deliver the possession of the property to the lessor on the expiration of the period of
lease or earlier termination thereof.
(i) The lessee is entitled to enjoy the lease property for the duration as agreed to with the lessor without any
interference.
16.6.4 Agreement to Lease
Generally, when the lease is for a long period it is preceded by an agreement to lease, and finally by execution of
the deed of lease. The essential ingredients of an agreement to lease are:—
(1) The parties to the deed

(2) The property to be demised
(3) The duration of the lease
(4) The rent payable and deposit, if any
(5) The date of commencement of Lease
(6) Retransfer of property
(7) Covenants of the lessor and leasee
(8) Determination of lease
When a lessor enters into an agreement to sell the tenanted property to his lessee during the
subsistence of the lease, the execution of such agreement would not ipso facto result in the termination
of the lease unless the parties intended to surrender the lease, whether expressly or impliedly.
The Supreme Court recently reaffirmed the non-arbitrability of disputes relating to tenancy and
eviction.29
16.6.5 Contents of Lease Deed

Page 3 of 9
16.6 Lease
16.6.5.1 Parties to a Lease
The lease deed must state the parties to a lease, i.e., the lessor or the landlord and the lessee and the tenant.
According to section 7 of the Transfer of Property Act, every person competent to contract and entitled to
transferable property or authorised to dispose off transferable property, not his own, is competent to transfer such
property either wholly or in part, and either absolutely or unconditionally in the circumstances, to the extent and in
the manner allowed and prescribed by law for the time being in force. So it means that the lessor must be
competent to contract and must have the title or the authority to execute the lease deed.
16.6.5.2 Subject Matter of a Lease
The subject matter under lease which shall be immovable property whether for agricultural, commercial or
residential purposes, the question whether a transaction in a particular case amounts to one of a lease depends
inter alia upon whether the subject matter of the lease is or is not immovable property. The expression immovable
property as defined in section 3 of the Transfer of Property Act does not include standing timber, growing crops and
grass, but it has been held to include benefits to arise out of land.
16.6.5.3 Delivery of Peaceful Possession
The lease deed should incorporate a clause as to delivery of possession of the lease property by the lessor to the
lessee.
16.6.5.4 Duration
The lease deed should state the duration of the lease. The deed must show the duration for which it will operate,
i.e., the date of commencement and the date on which it will expire if not renewed.
16.6.5.5 Consideration/Rent
The consideration/rent for the lease of the property should be specifically stated in terms of money and the manner
of payment as well as whether it is to be paid monthly or otherwise should be stated clearly to avoid any
vagueness.
16.6.5.6 Retransfer of Property
The lease deed must include a clause regarding retransfer of the property under lease, on the determination of the
lease period by the lessee to the lessor.
16.6.5.7 Covenants of the Lessor and Lessee
All the covenants of the lessor and lessee should be enumerated explicitly in the deed and also the consequences
in case of breach of the agreed covenants. The covenants are generally similar to those which are already stated
under the heading rights and liabilities of the lessor and lessee.
16.6.5.8 Determination of Lease
Section 111 of the Transfer of Property Act lays down conditions for determination of a lease of immovable
property:
111. Determination of lease.—A lease of immoveable property determines—
(a) by efflux of the time limited thereby,

(b) where such time is limited conditionally on the happening of some event- by the happening of such event,
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends
only to the happening of any event-by the happening of such event,
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16.6 Lease
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same
time,
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor
by mutual agreement between them,
(f) by implied surrender
(g) by forfeiture that is to say
(i) in case the lessee breaks an express condition which provides that on breach thereof the lessor may
re-enter
(ii) in case the lessee renounces his character as such by setting up a title in a third person or by claiming
title in himself, or
(iii) the lessee is adjudicated and insolvent and the lease provides that the lessor may re-enter on the
happening of such event and in any of these cases the lessor or his transferee gives notice in writing to
the lessee of his intention to determine the lease).
(h) on the expiration of a notice to determine the lease or to quit or of intention to quit the property leased duly
given by one party to the other.
Other general requirements of a deed of transfer as that of a mortgage deed or sale deed are also applicable to a
lease deed. A renewal clause may be inserted in the lease if agreed between the parties and also the terms of such
renewal.
16.6.6 Registration
As per section 17(1) of the Indian Registration Act, 1908, an agreement of lease with possession and a lease for a
period of one year or more is compulsorily required to be registered. However, an agreement to lease without
possession is not required to be registered. It is pertinent to note that a lease of more than one year, an assignment
of lease, surrender of lease and sub-lease are required to be compulsorily registered under the said Act.
16.6.7 Stamp Duty
For the purposes of stamp duty, the annual rent payable under the lease deed and the number of years of the lease
or on premium, or partly on premium and partly on rent, as the case may be, the duty is chargeable under Article 35
of the Indian Stamp Act. In case of surrender of lease, the duty is a fixed amount under Article 61 of the Indian
Stamp Act.
16.6.8 Specimen
Specimen No. I
Lease of Flat for Residential Purpose
THIS LEASE is made on the ______ day of 20___ at ______________,
BETWEEN
Mr. ABC
Age ___,
Occupation _________,
Residing at _______,
PAN
(Hereinafter called the ‘Landlord’ / Lessor )

Page 5 of 9
16.6 Lease
(which expression shall unless repugnant to the context or meaning thereof shall mean and include his heirs,
Party of One Part
AND
Mr. DEF,
Age _____,
Occupation _______,
Residing at _____
PAN
(Hereinafter called the ‘Tenant’/ Lessee)
WHEREAS
(ii) Mr. DEF _______ i.e. party of the other part was in need of residential premises for him and his family
members and that Mr. ABC is desirous of letting out his flat No.___ at ________Housing Society, bearing
CTS No._______ in ______city along with the furniture and fixtures (more particularly described in the
schedule) on monthly basis for ____________ duration.
(ii) That after due negotiations between the parties the party of the one part has agreed to give the premises
on lease to Mr. DEF i.e. party of other part on certain terms and conditions as enumerated herein below.
NOW THEREFORE THIS DEED WITNESSES AS FOLLOWS:
(1) That in consideration of the rent hereinafter reserved and of the tenant’s covenants hereinafter contained
the landlord (party of the one part) hereby leases unto the tenant (party of the other part) the flat No.
_____situate at _______ city ________along with all the fixtures, fittings, furniture and effects therein and
more particularly described the schedules I and II respectively annexed herewith) and TO HAVE AND TO
HOLD the same unto the tenant for a term of ______ year/ years, from _____20____ and paying during
the said term a monthly rent of Rs.________/- (Rupees in words ______________) only payable in
advance in the first week of each month and the tenant hereby covenants with the landlord, as follows:
The tenant covenants:—
(i) The tenant shall pay the rent at the times and in the manner specified herein above.
(ii) Pay all other rates, cess and taxes as levied by concerned authorities during the term of lease
including payment of electricity bills other than the property tax.
(iii) To use the leased premises only for residential purpose.
(iv) Not to damage or injure the property or make any alteration in or addition to it.
(v) Not to misuse or cause damage to the demised premises and if any damage or loss is caused to the
demised premises then the tenant, i.e., the lessee shall compensate and indemnify the landlord to that
extent.
(vi) To use and preserve fixtures, fittings, furniture and effects from being destroyed or damaged and not to
remove any of them from the property.
Page 6 of 9
16.6 Lease
(vii) To allow the landlord or the landlord’s agents at reasonable hours in the day time to enter the property
to view the state and condition thereof.
(viii) Not to sublet or part with possession of the property without the previous consent in writing of the
landlord.
(ix) To leave the furniture and effects at the end of the tenancy in the rooms or places in which they were
at the beginning of the tenancy.
(x) Not to do or suffer to be done to the leased property anything which may be or become annoyance or
nuisance to the neighbouring occupiers or may vitiate any insurance of the property against fire or
otherwise or increase the ordinary premium for such insurance.
(2) If the tenant fails to make the payment of the monthly rent or any part thereof and therefore is in arrears of
rent for a duration of 15 days after the same has become due and payable whether demanded or not or if
there shall be breach of any of the terms and conditions of this lease agreement by the tenant, the landlord
may re-enter on the property and the tenancy rights shall forthwith absolutely determine without prejudice
to the other rights and remedies to the landlord. However, in order to re-enter the premises, the landlord
shall give one month’s written notice to the tenant, i.e., lessee.
(3) The landlord agrees to pay and shall keep the tenant indemnified against all rates, assessments and
outgoings in respect of the property except the water cess and electricity charges pertaining to the leased
premises.
(4) The lessor assures unto the lessee, the lessee shall have unobstructed enjoyment of the demised
premises during the period of lease.
(5) The lessor hereby undertakes to keep the demised premises in tenable and habitable condition and if any
repairs and maintenance is required then the lessor shall do the same at his own cost.
(6) That after expiry of the lease period the tenant, i.e., the lessee shall deliver the possession of the demised
premises to the lessor.
(7) That all expenses towards stamp duty, registration charges and incidental expenses thereto are to be
borne by the lessee and accordingly he has paid for the same.
All that piece and parcel of the flat no___________ admeasuring ____________ Sq. mtrs. situate within registration
division and district __________ sub division and Taluka ___________, within the limits of
__________________Corporation, bearing CTS No. _______ plot No. ________ carved out of the layout of S. No.
___________
On or towards
East :
South:
West :
North:
Schedule II
Description of Furniture and Fixtures
IN WITNESS WHEREOF, the parties have signed this deed on the day, month and year as above mentioned.
Mr. ABC
Lessor
Mr. DEF
Page 7 of 9
16.6 Lease
Lessee
WITNESSES
1.
2.
Specimen No. II
(Lease for open plot of land)
THIS LEASE DEED is made on the ______ day of ____ 20___ at _______________,
BETWEEN
Name
Age: ___
Occupation: _________
Residing at: _______
PAN: _______
(Hereinafter called the Lessor )
Party of One Part
AND
Name:
Age: _____
Occupation: _______
Residing at: _____
PAN: _______
(Hereinafter called the Lessee)
WHEREAS the lessor is absolutely ceased and possessed of the property bearing plot No. __________
admeasuring __________ Sq. mtrs. situated at ___________ which is adjoining to ___________ Resort and more
particularly described in the schedule herein below and hereinafter referred to as the demised premises.
AND WHEREAS the lessee is the owner of the adjoining resort by name ____________ and desires to use the said
demised premises for parking of vehicles by the guests who visit the resort and for his staff who works in the resort.
Page 8 of 9
16.6 Lease
AND WHEREAS the lessee approached the lessor and expressed his desire and after due discussions between the
lessor and lessee, the lessor has agreed to grant to the lessee the demised premises on lease for a term of
____________ years on certain terms and conditions enumerated herein below:
NOW THIS DEED WITNESSES AS FOLLOWS:
(i) In consideration of the rent hereby reserved and the terms and conditions contained herein, the lessor
does hereby grant and confer unto the lessee a lease of the property bearing CTS No. __________more
particularly described in the schedule written herein below for duration of ________years and
TO HAVE AND TO HOLD THE SAID DEMISED PREMISES SUBJECT TO TERMS AND
CONDITIONS.
(ii) That the premium is agreed at Rs. ________/- and the lease rent is agreed at Rs. ____________/ per
month.
(iii) That the lessee has paid the said amount of premium, i.e., Rs. _________/- by cheque No. ________
drawn on ________ bank dated ________ and the lessor hereby acknowledges the said payment of
premium for the said demised premises and a separate receipt for the same shall not be necessary.
(iv) That the lessee shall pay the lease rent at the rate of Rs. ________ per month to the lessor on or before
10th (tenth) of each month. If the lessee delays the said payment then the lessor is entitled to charge
interest on the said payment at the rate of _____% p.a. from the date of delay till its actual realisation.
(v) That the lessor has delivered the actual and physical possession of the demised premises to the lessee at
the time of execution of these presents and the lessee hereby acknowledges the same.
(vi) That the lessor hereby declares and assures unto the lessee that:
(a) The lessor is the absolute owner of the demised premises and has full and absolute right to grant lease
in favour of the lessee.
(b) The lessor shall not create any encumbrance or any third party interest with respect to the demised
premises in any such manner which may affect the use and enjoyment of the demised premises by the
lessee.
(c) The lessor hereby allows the lessee to put up a covered parking shed on the demised premises of a
temporary nature.
(vii) That the lessee hereby undertakes and assures unto the lessor that:
(a) The lessee shall pay the monthly rent on time whether demanded or not by the lessor.
(b) The lessee shall construct the temporary parking shed by causing least damage to the demised
premises.
(c) Not to sell or dispose off any earth, gravel or sand from the demised premises and to excavate the
same except so far as may be necessary for the construction of temporary parking shed.
(d) The lessee shall not sublet or sub-lease the demised premises.
(e) The lessee shall use the said open plot i.e. the demised premises only for parking of vehicles and for
no other purpose.
(f) The lessee shall not part with the possession of the demised premises during the tenure of lease.
(g) The lessee shall keep the demised premises in good and proper condition at his own cost.
(h) The lessee shall not commit any act which affects the title of the lessor to the demised premises in any
manner whatsoever.
(viii) That if the lessee commits breach of any terms and conditions enumerated hereinabove then the lessor
shall be entitled to terminate the lease by giving a notice of one month and on such termination; the lessor
shall be entitled to recover the possession of the demised premises from the lessee.
Page 9 of 9
16.6 Lease
(ix) That at the end of the lease tenure or prior termination thereof the lessee shall remove the temporary
parking shed put up on the demised premises at his own cost and shall hand over actual, vacant and
physical possession of the demised premises to the lessor.
(x) That all expenses towards stamp duty, registration charges and incidental expenses thereto are to be
borne by the lessee and accordingly he has paid for the same.
All that piece and parcel of land bearing S. No. ______ admeasuring ______ Sq. mtrs. situate at ____________
within the local limits of ________ Municipal Corporation and is bounded as under:
ON OR TOWARDS:
East :
West :
North:
South:
Sd of Lessor
Sd. of Lessee
WITNESSES
1.
2.
28 Anwarali v Jamini Lal Roy, AIR 1940 Cal 89.

29 Himangi Enterprises v Kamaljeet Singh Ahulwalia, (2017) 10 SCC 706.
End of Document
16.7 Leave and Licence
Dr Medha Kolhatkar
PROCEDURE > LEAVE AND LICENCE
LEAVE AND LICENCE

The expression Licence, with reference to leave and licence agreement means permission to use any premises,
i.e., immovable property either for residence, business or storage, subject to the terms and conditions stipulated in
the agreement between the parties.
Indian Easements Act, 1882 defines Licence under section 52 as,
Where one person grants to another or to a definite number of other persons, a right to do or continue to do in or upon the
immovable property of the grantor something which would in the absence of such right, be unlawful and such right does not
amount to an easement or an interest in the property, the right is called a licence.
Therefore, licence is a personal right given to the licensee. Licence does not create any interest in the immovable
property. It merely gives right to use the immovable property in a particular manner. No exclusive possession is
given in case of licence as can be seen from the definition. In case of licence, the permission is given to use the
property of which legal possession continues with the owner.
When interest is transferred in an immovable property then the transaction is a lease. Where merely a right is
created to use the immovable property without any interest, it is a licence. In order to make out whether the parties
intended it to be lease or licence, the intention of the parties needs to be considered by carefully perusing the terms
of the agreement.
A licence is a personal right given to the licensee and hence, it cannot be transferred by the licensee or exercised
by his servants and agents, except a licence to attend a place of public entertainment.30
16.7.1 Distinction Between Lease and Licence
1. A lease is a transfer of an interest in immovable property; however, in licence there is no transfer of any
interest in immovable property.
2. Lease grants tenant with exclusive possession of an immovable property while leave and licence
agreement only provides a permission to occupy a certain property.
3. In case of lease possession stands transferred; but in case of licence the legal possession is never
transferred, it remains with the licensor.
4. Leases are transferrable but licences are not.
5. Generally leave and licence agreement is signed up for a period of 11 months and can be renewed once
the term expires depending upon the mutual understanding of the licensor and licensee; lease is generally
for a longer duration.
6. A licence agreement is easier to terminate than a rent agreement/lease.
Page 2 of 8
As seen from the meaning of licence given under section 52 of the Indian Easement Act, a licence is a personal
right granted to a person to do something upon immovable property of the grantor and does not amount to creation
of an interest in the property itself. It is purely a permissive right and is personal to the grantee. It creates no duties
and obligations upon the persons making the grant and is therefore revocable except in certain circumstances
expressly provided for in the Act itself.
Licence only legalizes a certain act which would otherwise be unlawful and does not confer any interest in the
property itself in or upon or over which such act is allowed to be done.
16.7.2 Drafting of Leave and Licence Agreement
1. The Leave and Licence Agreement should clearly identify the Licensor and Licensee.
2. The details of the property to be given on Leave and Licence, should be stated clearly.
3. The purpose of Leave and Licence should be stated (whether property is to be given for residential or
commercial purpose).
4. The authority of the Licensor to enter into the agreement must be stated (i.e., whether he is the owner of
the property or is authorized by the owner, etc.)
5. The term of licence should be explicitly mentioned in the agreement and that after the completion of the
term of licence, the relationship between the Licensor and Licensee comes to an end. A renewal clause
may be included in the agreement.
6. The details of security deposit should be mentioned in the agreement. The licensee is required to maintain
an interest- free security deposit with the Licensor. The purpose of keeping the security deposit is to
protect the licensor’s interest in case of non-payment of licence-fee or any other breach committed by the
licensee.
7. The licence agreement must state details about other facilities like use of common passage, parking, club
house, etc. if applicable. Details of furniture and fixtures should be meticulously given.
8. Clause regarding termination of licenses –
The agreement must state grounds on which the leave and licence agreement is liable to be
terminated.
16.7.3 Contents of a Leave and Licence Agreement
(1) The title of the document – the title stating that it is a leave and licence Agreement.
(2) The date and place of the agreement.
(3) Parties—full details of the parties, i.e., the licensor and the licensee.
(4) Description of the property.
(5) Recitals.
(a) Narrative
(b) Introductory
(i) Narrative Recitals—these recitals should state the information about the title of the licensor to the
immovable property which is the subject matter of the agreement.
(ii) Introductory Recitals—the reasons for the transaction____ “the licensor was desirous of giving the
licensed premises on leave and licence basis.”
(6) Testatum—NOW THEREFORE THIS AGREEMENT WITNESSES AS FOLLOWS:
(7) The terms and conditions of the licence agreement
(i) Purpose of licence-residential/ commercial/ others (charitable / religious).
Page 3 of 8
(ii) The duration of the agreement

(iii) The licence fee (state the amount)
(iv) When and how to be paid (mode of payment) (i.e., paid on 5th of each month by cheque drawn in the
name of ___________).
(v) Stipulations as to how the licensed premises ought to be used
(vi) Other obligations of the licensee.
(vii) Possession- no exclusive possession given.
(viii) Right of the licensor to revoke the licence in case of breach.
(8) Habendum —the right to the licensee to use and enjoy the licensed premises _______
(9) TESTIMONIUM—That the parties have signed the agreement in the presence of each other and in the
presence of the witnesses i.e. IN WITNESS WHEREOF _____.
(10) EXECUTION—The parties to the agreement, i.e., the licensor and the licensee shall sign the document in
the end and also should state in which capacity they are executing the said document/s.
(11) ATTESTATION—The details of the witnesses, i.e., name, address, etc., and must sign the
document/agreement with the intention to attest the same.
16.7.4 Stamp Duty
Leave and licence agreement falls under Article 5(C) of the Indian Stamp Act, 1899, and hence, requires stamping
like any ordinary agreement. It is to be noted that as per the Bombay Stamp Act, 1958 under Article 36A, it is
chargeable with stamp duty.
16.7.5 Registration
A leave and licenceagreement does not create any interest in the immovable property, therefore, the same is not
required to be registered under section 17 of the Registration Act, 1908. In Maharashtra it is compulsory to register
by the virtue of section 55 of Maharashtra Rent Control Act, 1999.
16.7.6 Specimen
Specimen No. I
Leave and Licence Agreement
This agreement is made at ________on ____________day of _______/ 20_____
BETWEEN
Name: __________
Age: _________
PAN: __________
Herein after referred to as Licensor
(which expression shall unless repugnant to the context or meaning thereof be deemed to mean and include his
heirs,, executors, administrators and assigns etc.)
__________________________Party of the One Part/ Licensor

Page 4 of 8
AND
Name: __________
Age: _________
PAN: __________
Hereinafter referred to as Licensee
heirs,, executors, administrators and assigns etc.)
__________________________Party of the Other Part/ Licensee
Whereas,
(i) The licensor is the owner of a residential flat No. _____ in building No. _________ on ______floor in
_______housing society on land bearing Survey No. _________, which is more particularly described in
the schedule written hereunder.
(ii) The said flat consists of hall, kitchen and two bedrooms and two toilet blocks totally admeasuring
________sq. mtrs. (built up). The said flat is owned by the licensor and is presently in his possession and
he is also the member of the said society.
(iii) The party of other party, i.e., Mr. ____wanted a flat on leave and licence basis and therefore approached
the party of the one part to obtain the aforementioned flat on temporary basis on following terms and
conditions:
Now, it is agreed by and between the parties as follows:—
(1) The licensor hereby grants on leave and licence to the licensee to occupy and use the said flat (hereinafter
referred to as the licensed premises) for a period of 11 months from the date hereof for the residence of
the licensee and his family.
(2) The licensee shall pay to the licensor a sum of Rs. ______/- per month as licence fee or compensation to
be paid in advance on or before the 5th day each month.
(3) All the Municipal taxes and other taxes and levies in respect of the licensed premises will be paid by the
licensor alone.
(4) The licensee shall be entitled to use common parking space for the purposes of parking vehicles.
(5) The parties hereby agree that the licensee shall not be deemed to be in the exclusive possession of the
licensed premises and the licensor will have the right to enter upon the premises from sunrise to sunset to
inspect the premises. The juridical possession shall be deemed to be with licensor and one set of keys of
the flat will remain with the licensor.
(6) The licensee hereby undertakes to maintain the licensed premises in good and proper condition and will
not cause any damage thereto.
(7) The licensee shall not cause any nuisance or annoyance to the people in the neighbourhood or store any
hazardous goods on the premises or near about and shall not do any act which would be a breach of the
bye laws of the said society or otherwise illegal.
(8) The electricity charges due and payable for the consumption of electricity shall be paid by the licensee and
the licensor shall not be responsible for the same. The licensee shall handover all the paid electricity bills
to the licensor during licence tenure. In case the licensee commits any default in payment of electricity bill
the licensor will be entitled to adjust it from the deposit amount of Rs. ________/-.
Page 5 of 8
(9) The licensed premises are given to the licensee on personal basis and the licensee will not be entitled to
transfer the benefit of this agreement to anybody else or will not be entitled to allow anybody else to
occupy the premises or any part thereof. Nothing in this agreement shall be deemed to grant a lease /
tenancy and the licensee agrees and undertakes that no such contention shall be taken up by the licensee
at any time.
(10) The licensee shall not carry out any work of structural repairs or additions or alterations to the said
premises. Only such alterations or additions as are not of structural type or of permanent nature may be
allowed to be made by licensee inside the premises with the previous permission of the licensor.
(11) The licensee shall maintain the licensed premises in good condition and will not cause any damage
thereto. If any damage is caused to the premises or any part thereof by the licensee, his family members,
servants etc the same shall be made good by the licensee at his cost either by rectifying the damage or by
paying cash compensation as may be determined by the licensor.
(12) If the licensee commits a breach of any of the terms of this agreement then notwithstanding anything
herein contained the licensor will be entitled to terminate this agreement by 15 days notice to the licensee.
(13) On the expiration of the said term or period of the licence or earlier termination thereof, the licensee shall
handover vacant and peaceful possession of the licensed premises to the licensor in the same condition in
which presently the premises are subject to normal wear and tear. The licensee remaining in occupation of
the premises after such termination will be deemed to be an act of trespass.
(14) The licensor has received from licensee under this agreement an amount of Rs. ________/- by way of
deposit without interest for the due performance of the obligations assumed and undertaken and agreed by
way of security. If the licensee commits any breach of obligation the licensor shall recover the said amount
from the deposit amount. If however, this agreement is terminated without any default or breach on the part
of the licensee, its servants/agents the said deposit will be refunded to the licensee on such termination
forthwith.
(15) This agreement will stand terminated on the licensee going into liquidation.
I. DESCRIPTION OF THE PROPERTY
All the piece and parcel of land admeasuring ________i.e. ________sq. mtrs. bearing S. No. ________ and within
the Registration District _________.
Sub-District Tal. ________ and within the limits of Municipal Corporation and bounded as follows:
ON OR TOWARDS:
EAST:
SOUTH:
WEST:
NORTH:
II. DESCRIPTION OF THE FLAT
Flat No. ______in building number _____on the _____ Floor (Give full description of the flat).
Note: The word First Floor shall always mean the floor above plinth or above the slab of stilt.
Admeasuring built-up area ______ sq. mtrs. including the area under balconies and exclusive overhead/attached
terrace/garden adjoining to said flat admeasuring ______ sq. mtrs.
IN WITNESS WHEREOF the parties hereto have put their hands the day,month and year first herein above written.
Sd of Licensor
Page 6 of 8
Sd of Licensee
Witness
(1)
(2)
Specimen No. II
FOR COMMERCIAL PURPOSE
This agreement of Leave and Licence is made on this ____________day of _______ 20_____at ____________
(place).
BETWEEN
Hereinafter referred to as “the Licensor”
AND
Hereinafter referred to as ‘the Licensee’
WHEREAS
(i) The licensor is the absolute owner of the Shop no. ________ in complex bearing S. No. ________
admeasuring ___________ sq. mtrs., situated at __________ and the same is described in the schedule
written herein below and hereinafter referred to as the licensed property or the said property.
(ii) The licensor was desirous of giving the licensed property on leave and licence basis subject to certain
terms and conditions and had accordingly put notice outside the said shop/property.
(iii) The licensee who is in business of selling books, stationery, etc. and who owns shop No. _________ in
same complex read the said notice displayed by the licensor and approached the licensor with the intention
to obtain the said property on leave and licence basis.
(iv) The licensor and the licensee after due discussions and negotiations between them mutually agreed to
enter into leave and licence agreement on certain terms and conditions.
NOW THEREFORE IT IS AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
(1) The licensor hereby grants leave and licence to the licensee to occupy and use the shop No. ___ in _____
Complex admeasuring _______ sq. mtrs. bearing S. No. ________ situated at _______ (more particularly
described in schedule written herein below and referred to as the licence property/said property) for a
duration of 11 months from ________ date.
Page 7 of 8
(2) The licensee hereby agrees to pay Rs. __________/- as licence fees to the licensor per month on or
before the _________day of each month.
(3) The licensor has fitted certain fixtures to the said licensed premises, i.e., fan, racks, two tube lights and the
Licensee hereby agrees to use the said fittings properly and cautiously subject to normal wear and tear.
(4) The licensed premises shall be used only for business purposes (i.e. the book and stationary business) of
the licensee and for no other purpose.
(5) If the licensee desires to have any additional fittings and fixtures, then the licensee may do so at his cost
and as per applicable rules and regulations both of the local authority and the society. The licensee shall
remove such additional fittings and fixtures on the termination of the licence failing which the said fittings
and fixtures shall be deemed to be the property of the licensor.
(6) The licensee shall maintain the licensed premises in good condition and should not cause any damage
thereto. If during the licence period any damage is caused to the licensed property or any part thereof by
the licensee or by his servants, employees or agents the same shall be made good by the licensee at the
cost of the licensee either by rectifying the damage or by paying the amount as compensation for the said
damage as may be determined by the licensor’s architect.
(7) The licensee shall abide by all the society rules and regulations including the parking rules and shall not
cause any nuisance or annoyance to the members of the society or store any hazardous goods on the
licensed property.
(8) The licensee shall not be deemed to be in the exclusive possession of the licensed premises and the
juridical possession of the premises at all times vests with the licensor. The licensor shall have the right to
enter upon the licensed property at any time during the reasonable working hours to inspect the same.
(9) The licensed property is given to the licensee purely on personal basis and the licensee is not entitled to
transfer the benefits of this agreement to anybody else and also is not entitled to allow anybody else to use
and occupy the licensed premises or any part thereof. Nothing in this agreement shall be deemed to grant
a lease and the licensee hereby declares, agrees and undertakes that no such contention shall be taken
up by the Licensee at anytime.
(10) All the municipal taxes and levies in respect of the licensed property would be borne by the licensor alone.
The electric charges and water charges for the said licensed premises are to be borne by the licensee
during the licence period and after having made the necessary payments shall handover the receipts of the
same to the licensor.
(11) The licensee shall not carry out any work of structural repairs or additions or alterations in the licensed
property. Only those changes/ alterations which are not of structural type or of permanent nature may be
allowed to be made by the licensee on the licensed property with the previous written permission of the
Licensor.
(12) In case the licensee commits a breach of any term of this Agreement, then notwithstanding anything
contained herein the licensor shall be entitled to terminate this agreement by 15 days notice to the
licensee.
(13) On the expiration of the term of this agreement or earlier termination thereof the licensee shall handover
vacant peaceful possession of the licensed premises to the licensor in the same condition in which the
premises now exists subject to normal wear and tear. The licensee’s occupation of the licensed property of
the said termination will be deemed to be that of a trespasser.
(14) The licensor has received from licensee under this agreement an amount of Rs. ________/- by way of
deposit without interest for the due performance of the obligations assumed and undertaken and agreed by
way of security. If the licensee commits any breach of obligation the licensor shall recover the said amount
from the deposit amount. If however, this agreement is terminated without any default or breach on the part
of the licensee, its servants/agents the said deposit will be refunded to the licensee on such termination
forthwith.
(15) This agreement will stand terminated on the licensee going into liquidation.
SCHEDULE
All that piece and parcel of shop No. ___ in _____ Complex admeasuring _______ sq. mtrs. bearing S. No.
________ situated at _______ within the local limits of ______ Municipal Corporation.
Page 8 of 8
IN WITNESS THEREOF the parties hereto have put their hand on the date first hereinabove written.
Sd. of Licensor
Sd of Licensee
WITNESS
1. ________________
2. _______________
30 Section 56 of Indian Easements Act.
End of Document
16.8 Mortgage
Dr Medha Kolhatkar
PROCEDURE > MORTGAGE
MORTGAGE
16.8 Mortgage
The expression Mortgage is defined under section 58 of the Transfer of Property Act, 1882.
A mortgage is the transfer of an interest in specific immovable property for the purpose of securing payment of money
advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may
give rise to pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee, the principal money and interest of which payment is
secured for the time being are called the mortgage money, and the instrument (if any) by which the transfer is effected is
called a mortgage deed.
In case of mortgage there is transfer of an interest in an immovable property. The purpose of such transfer is to
secure a loan.
16.8.1 Kinds of Mortgages
The Transfer of Property Act under section 58, states six kinds of mortgages.
16.8.1.1 Simple mortgage
In simple mortgage:
(i) The mortgagor does not deliver possession of the mortgaged property.
(ii) The mortgagor binds himself personally to pay the mortgage money.
(iii) If the mortgagor fails to pay according to the contract then the mortgagee is entitled to cause the
mortgaged property to be sold.
(iv) The proceeds of sale are to be applied, so far as may be necessary, in payment of the mortgage money.
16.8.1.2 Mortgage by conditional sale
In the case of mortgage by conditional sale:
(i) The mortgagor ostensibly sells the mortgaged property.

(ii) On the condition that on default of payment of the mortgage money on a certain date, the sale shall
become absolute, or
Page 2 of 7
16.8 Mortgage
(iii) On the condition that such payment being made, the sale shall become void, or
(iv) On such payment being made, the mortgage property is to be retransferred.
(v) The said transaction must be stated in the mortgage deed.
(vi) The mortgagee, thus, in case of default can exercise the right of foreclosure.
16.8.1.3 Usufructory mortgage
The peculiar features of this kind of mortgage are as follows:
(i) The mortgagee is put in possession of the mortgaged property as an essential part of the transaction.
(ii) The mortgagee continues to remain in possession of the property till the payment of the mortgage money.
(iii) The repayment is to be made from the rents and profits of the property.
(iv) The property is returned when the amount due is personally paid or adjusted towards the rents and profits
received.
16.8.1.4 English mortgage
In the case of an English mortgage:
(i) The mortgagor binds himself to repay the mortgage money on a certain date.
(ii) The mortgagor transfers the mortgaged property absolutely to the mortgagee.
(iii) There is a covenant that the mortgagee will retransfer the property to the mortgagor upon payment of the
mortgage money as agreed.
(iv) The mortgagee can exercise the right of sale in case of mortgagors default.
16.8.1.5 Mortgage by deposit of title deeds/equitable mortgage
Mortgage by deposit of title deeds is also called an equitable mortgage. The peculiar features of this kind of
mortgage are:
(i) This mortgage is created where a person in any of the following towns, namely the towns of Calcutta,
Chennai, and Mumbai and in any other town which the state government may, by notification in the Official
Gazette, specify, in this behalf.
(ii) The mortgagor or his agent delivers to the mortgagee all the documents of title deed with intention to
create a security thereon is a mortgage by deposit of title deeds.
(iii) There is no delivery of possession of property in this kind of mortgage.
16.8.1.6 Anomalous mortgage
The features of an anomalous mortgage are stated below:—
(i) A mortgage which is not of any of the kinds stated herein above is called an anomalous mortgage.
(ii) This mortgage is a mixture of two or more of the mortgages above mentioned.
16.8.2 Drafting of Mortgage Deed
The following points shall be included while drafting a mortgage deed.
(a) Title to deed

(b) Date and place
(c) Description of the parties (mortgagor and mortgagee)
(d) Introductory recitals
Page 3 of 7
16.8 Mortgage
(e) Narrative recitals

(f) Testatum
(g) Terms and conditions of the mortgage deed—the terms and conditions in the mortgage deed will vary
according to the form or type of mortgage.
(h) Habendum—To Have and To Hold
(i) Testimonium
(j) Schedule of the property
(k) Execution and attestation
16.8.3 Stamp Duty
All documents of mortgage of any kind, except equitable mortgage, including second mortgage and sub mortgage
or charge, are chargeable under Article 40 Schedule 1 of the Indian Stamp Act, 1899.
16.8.4 Registration
All the documents of mortgage as stated above, except an agreement to mortgage, require compulsory registration
under the Registration Act, 1908.
16.8.5 Specimen
Specimen No. I
DEED OF MORTGAGE
THIS DEED OF MORTGAGE is made at this day of ________20_______ BETWEEN
Mr./Mrs.________
Age: ________
Occupation:_________
Residing at: ________
PAN: __________
Hereinafter referred to as ‘The Mortgagor’
(which expression shall unless repugnant to the context mean and include his heirs executors, administrators and
assigns) Party of the One Part.
AND
Mr./Mrs.________
Age: ________
Occupation:_________
Residing at: ________
PAN: __________
Hereinafter referred to as “The Mortgagee”.

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16.8 Mortgage
(which expression shall unless repugnant to the context mean and include his heirs executors, administrators and
assigns) Party of the Other Part.
WHEREAS
(a) The mortgagor is absolutely seized and possessed of the immovable property bearing CTS No.
__________ admeasuring ________ sq. mtrs., i.e., land with building on it and more particularly described
in the schedule written herein below and hereinafter referred to as the mortgage property/said property.
The said property is the self acquired property of the mortgagor herein.
(b) The mortgagor is in dire need of money for the medical treatment of the mortgagor’s wife who is to undergo
kidney transplant and other medical treatment and also for the business purposes of the mortgagor.
(c) The mortgagor therefore approached the mortgagee to give him a loan of Rs. _______ for the
aforementioned reasons and after due discussions and deliberations between the mortgagor and
mortgagee, the mortgagee has agreed to advance loan to the mortgagor on certain terms and conditions
against the said/mortgaged property of the mortgagor as security for the repayment of the loan.
(d) Thus the mortgagor has agreed to mortgage the said property in favour of the mortgagee as a collateral
security. The parties hereto have arrived at an understanding which they have decided to reduce into
writing being the presents as follows
(1) That the mortgagor does hereby mortgage the said/mortgaged property more particularly described in
Schedule i.e. _____ sq. mtrs., i.e., land with building on it and more particularly described in the Schedule
written herein below and hereinafter referred to as the mortgage property/said /mortgaged property in
consideration of the amount of Rs. ________/- lent and advanced by the mortgagee.
(2) That the mortgagor is liable to pay unto the mortgagee an amount of Rs. __________/- per month and the
mortgagor hereby agrees to repay the amount of said debt within a period of ______ years from the date of
execution of these presents.
(3) The mortgagor hereby assures to pay unto the mortgagee the said amount of Rs. ____ alongwith interest
thereon at the rate of _________ % per annum.
(4) That the mortgagor assures unto the mortgagee that the mortgage property/ said property is his absolute
property and no one else has any right, title or interest in the same and further more the mortgagor hereby
assures unto the mortgagee that the said property is free from all encumbrances.
(5) That the mortgagor hereby assures and undertakes unto the mortgagee that he will not deal with the said
property in any manner so as to prejudicially affect the rights of the mortgagee.
(6) That on payment of the mortgage money that is the loan amount together with interest and other monies as
may be due and payable to the mortgagee by the mortgagor within the stipulated period then the
mortgagor shall be entitled to claim redemption of the said property from the mortgagee.
(7) And it is further agreed and declared by the mortgagor that if the mortgagor fails to pay the loan amount,
i.e., Rs. ______/- with interest and all other monies when the same shall become due and payable under
these presents the mortgagee shall be entitled to claim foreclosure of the mortgage and in the default of
the mortgagor the mortgagee shall be entitled to enforce all such remedies available against the mortgagor
as are available to the mortgagee under simple mortgage.
(8) It is further agreed that during the pendency of the security hereby created and until the repayment of the
mortgage amount the mortgagor will get insured and keep insured the building and structure standing on
the said land against any loss and or damages due to fire or any other accident in the sum of atleast Rs.
_________/- with some insurance company of repute and pay all premium on the insurance policy as and
when it becomes due and payable in respect thereof to such company and shall handover the policy
document to the mortgagee duly endorsed in his name as assignee.
(9) That all the expenses towards stamp duty, registration charges and other incidental expenses thereto are
to be borne by the mortgagor.
SCHEDULE
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16.8 Mortgage
All that piece and parcel of the land ___________admeasuring _________ sq. mtrs. together with structure
standing thereon by name _____ admeasuring _____ sq. mtrs., situate within registration division and district
__________ sub division and Taluka ___________, within the limits of ________ Corporation, bearing CTS No.
_______ plot No. ________ carved out of the layout of S. No. ___________ and bounded by as follows:
On or towards
East:
South:
West :
North:
IN WITNESS WHEREOF THE PARTIES HERETO HAVE SIGNED HEREUNDER AT _______ AT THIS
_________DAY OF_______ 20________
Sd. of Mortgagor:
Sd. of Mortgagee:
WITNESS
1. ____________
2. ____________
Specimen No. II
Deed of Usufructory Mortgage
THIS DEED OF Usufructory Mortgage is executed at _____on this _____day _____20— BETWEEN
XYZ Pvt. Ltd, through its Director_____ (Company incorporated under the provisions of the Companies Act,
1956/2013 having its registered office at_____.
(Hereinafter referred to as “The Mortgagor”).
(which expression shall unless repugnant to the context or meaning thereof be deemed to mean and include its
successors, executors, administrators and assigns) of the ONE PART.
AND
Name: _______
Age: __________
Occupation: _____
Residing at: _____
PAN: _________
(Hereinafter referred to as “The Mortgage”).
heirs, executors, administrators and assigns) of the OTHER PART
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16.8 Mortgage
WHEREAS
I) The Mortgagor is the owner and is otherwise well and sufficiently entitled, seized and possessed of the
property at _____and which is more particularly described in the Schedule hereunder written (hereinafter
referred to as “the said property/Mortgage property”).
II) The Mortgagor is in need of finance to expand its business therefore approached the Mortgagee to provide
the necessary finance of Rs. _____/-.
III) The Mortgagee has agreed to lend and advance and has advanced Rs. _____/-(Rupees in words____ )
with interest @ _______ % p.a. against the security of mortgage/said property by way of Usufructory
mortgage on certain terms and conditions stated herein below.
NOW THIS INDENTURE WITNESSES as follows:
1) That in consideration of the sum of Rs. _____/- (Rupees ____ only) paid to the Mortgagor by the
Mortgagee on or before execution hereof (the receipt whereof the Mortgagor hereby acknowledges and
admits.) the Mortgagor hereby transfers by way of usufructory mortgage, to the mortgagee the mortgaged
property/said property more particularly described in the Schedule annexed hereto inclusive of right of
possession of the mortgage property with intention that the Mortgagee shall have right to reserve/retain
such possession until payment of mortgage money, and to receive rents and profits and to appropriate the
same (after paying the necessary taxes, levies as may become payable from time to time) in lieu of interest
on the said sum of Rs. _____/-
2) The Mortgagor hereby declares and assures unto the Mortgagee that the mortgage property is free from all
encumbrances or charge and that the Mortgagor has duly paid and discharged all dues and liabilities with
respect to the said property including the Municipal taxes, levies etc. till date.
3) The Mortgagee hereby covenants that the mortgagor may redeem the mortgage at any time after _____
years on repaying the said loan of Rs. _____/- with interest. On such repaying, the Mortgagee will re-
transfer the mortgaged property to the Mortgagor and will put him in actual possession of the property.
4) The Mortgagee at the cost and expense of the Mortgagor shall be entitled to insure the said property
against any loss of damage to the said property by fire etc.
5) The Mortgagor hereby declares that no winding up petition is pending against the Mortgagor before any
court of law and neither have any winding-up notices been received by the Mortgagor.
6) The parties hereby covenant that the Mortgagor shall register this Mortgage deed with the Registrar of
Companies under the provision of the Companies Act, 1956/2013.
7) That the parties shall have all such rights and be subject to all such liabilities of a Mortgagor and
Mortgagee provided in the Transfer of Property Act 1882 as may be applicable to them.
8) The Stamp duty and registration charges payable on this instrument as also all other incidental costs and
expenses thereof shall be borne and paid by the Mortgagor.
Schedule of the Property
All that piece and parcel of the land ___________admeasuring _________ sq. mtrs. together with structure
standing thereon by name _____ admeasuring _____ sq. mtrs., situate within registration division and district
__________ sub-division and Taluka ___________, within the limits of ________ Corporation, bearing CTS No.
_______ plot No. ________ carved out of the layout of S. No. ___________ and bounded by as follows:
On or towards:
East:
South:
West :
North:
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16.8 Mortgage
IN WITNESS WHEREOF THE PARTIES HERETO HAVE SIGNED HEREUNDER AT _______ ON THIS
_________DAY OF _______ 20________
Sd. of Mortgagor:
Sd. of Mortgagee:
WITNESS
1. ____________
2. ____________
End of Document
16.9 Partition
Dr Medha Kolhatkar
PROCEDURE > PARTITION
PARTITION
16.9 Partition
Partition is considered to be one of the species of transfer. The Indian Stamp Act, 1899 defines “Instrument of
partition” under section 2(15). “‘Instrument of partition’ means any instrument whereby co-owners of any property
divide or agree to divide such property in severality, and includes also a final order for effecting a partition passed
by any revenue-authority or any civil court and an award by an arbitrator directing a partition”. The right to enforce a
partition is a continuous right.31
The right of a co-owner to claim partition primarily depends on a fact to be proved that there are divisible joint
properties held by the co-owners. Partition is a division of a property between the joint owners, whereby the
property/s or their interests held by them in common are severed according to their respective shares or rights,
therein so that every co-owner holds his share independently and becomes the sole owner of the part which is
allotted to him.
Partition generally comes into effect either by executing an agreement or through court or by arbitration. Partition
within its scope includes an element of release, as each of the sharers relinquishes in favour of the other or others,
his interest in property allotted to other or others. If a document of release shows that the executants are to get
cash or other assets which formed part of common property, the document is an instrument of partition.32
In dividing joint property, by metes and bounds it is sometimes not possible to allocate properties of equal value to
the co-owners. Properties of larger value go to one co-owner and properties of smaller value go to another. In such
a case there would have to be an adjustment of the values by providing for the payment by the former to the latter
by way of equalisation of their shares. Such a provision is termed “a provision for owelty or equality of partition.”33
Partition is a division of a joint property among several co-owners, so that each person gets a share and becomes
the exclusive owner of the share allotted to him. On partition, each of the divided properties gets a new title and
each shareholder gives up his interest in the property in favour of others. Hence, it can be said that partition is a
combination of surrender and transfer of certain rights in the estate except those which are easements in nature.
Partition under the Hindu law is governed by two schools of thought, i.e., Mitakshara and Dayabhaga.
Liabilities attached to Joint Property: While executing partition of Hindu Undivided Family property provisions should
be made for liabilities attached to the property such as debts if any, maintenance, etc.
16.9.1 Formalities of Partition
Partition can be made either orally or through an agreement. If suit is filed then, through court or by means of
arbitration. The partition so made can be reduced to writing by way of memorandum.
It is not necessary for the partition that the joint family property is divided by every bit of it.
16.9.2 Deed of Partition

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16.9 Partition
A deed of partition does not require any particular form. The intention to divide and to hold the property
independently and in severality should be clearly indicated. The deed of partition generally enumerates and
declares the share of each of the party on partition and therefore it takes the form of transfer or release by each co-
owner as to his share in the joint property which is the subject matter of partition. It is a common practice to execute
a deed of partition in duplicate or triplicate, etc., and each of the instruments is considered as an original so that
each party can take and preserve a copy of the said deed of partition. On executing deed of partition the title
documents relating to the property/s allotted to the share of a party should be delivered to the said party by others.
16.9.3 Can partition be re-opened?
Partition once made cannot be re-opened, except on the ground of fraud or mistake in including property which did
not belong to the joint family. If it is shown that partition was obtained by fraud, coercion, misrepresentation or under
influence, it can be reopened.
If some members are minors and partition is proved to be unjust and unfair and detrimental to their interest, it can
be re-opened, no matter when it had taken place.34
16.9.4 Contents of Partition Deed
(a) In a deed of partition the necessary recitals should be stated correctly and the description of the property/s
partitioned should be accurate and complete.
(b) The significant clauses in a deed of partition are the shares allotted to the parties under the deed and the
release clauses. The release clause indicates that each party relinquishes or releases his right, title and
interest in the properties allotted to the other party.
All the joint owners/co-owners should be parties to the deed of partition. If one of the co-owners is minor he should
be added as a party to the deed and should be represented by a guardian. The partition is valid and binding on the
minor if the same has been made for his benefit and is fair and equitable. If the partition is not just and fair then the
minor, on attaining majority, can repudiate the same and can exercise his right to reopen the partition.
16.9.5 Registration of Partition Deed
When partition is made in writing, then it requires registration under the Registration Act, 1908, if the immovable
property involved is worth Rs. 100/- or more. As per section 17(1)(b) of the Registration Act “other non testamentary
instruments which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future,
any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in
immovable property” requires registration. Therefore, a deed of partition requires registration.
Document effecting partition in present and crystallising rights of parties is to be registered compulsorily. If the
document is not registered, it would not be admissible under section 49 of the Registration Act. If the effect of
partition or fact of partition cannot be looked into then benefits flowing from the said partition also cannot be looked
into.35
16.9.6 Stamp Duty
The instrument of partition is covered under Article 45 Schedule I of the Indian Stamp Act, 1899, and the stamp
duty is to be payable accordingly. Under the Indian Stamp Act of 1899, the duty is payable on the value of the
separated property/s.
16.9.7 Specimen
Specimen No. I
PARTITION DEED
THIS DEED OF PARTITION is made on this ________day of ________ BETWEEN

Page 3 of 7
16.9 Partition
Hereinafter called the “party of the First Part”.
executors, administrators and assigns.)
AND
Hereinafter called the “party of the Second Part”.
AND
Hereinafter called the “party of the Third Part”.
WHEREAS the party of first part, second part and third part are the sons of late Mr. D who was resident of
__________. Late Mr. D died on ____ (date)____ at _____(place)__.
And Whereas, the parties to this deed own and possess certain properties jointly. The said properties are ancestral
properties.
AND WHEREAS the parties hereto are the joint and absolute owners of the properties briefly mentioned herein
below (and described in detail in the schedule ‘A’, ‘B’ and ‘C’)
(1) A flat at _________
(2) A shop at _________
(3) A shop at_________
WHEREAS, during the life time of late Mr. D, i.e., the father of the parties to this deed, the said properties were
orally divided and the parties herein were put in physical possession as stated below:
AND WHEREAS the party of the first part is in possession and occupation of the flat at _________ admeasuring
________sq. ft. in ________ housing society and is residing there with his wife and two children.
AND WHEREAS the party of the second part is running Sweetmart business in shop at ____________,
admeasuring _________sq. ft. in lane no._______.
AND WHEREAS the party of the third part is running a Bakery by name ________ in the shop at ____________.
AND WHEREAS all the three brothers, i.e., party of the first part, second part and third part have mutually and
amicably agreed to execute this partition deed thereby retaining the property in their possession, use and
occupation and releasing rights in respect of other properties.
AND WHEREAS all the immovable properties are approximately of the same value.
NOW THEREFORE THIS DEED WITNESSES AS FOLLOWS:
(1) That in pursuance of the fact that all the three properties are of equal value and in consideration of the full
and absolute ownership acquired by the parties as per the mutual transfers and releases:
Page 4 of 7
16.9 Partition
(i) Party of the first part shall now by virtue of this deed of partition become absolute owner of the Flat
no.______ at _______ and party of second and third part shall have no rights in respect of the said flat
(more particularly described in Schedule A)
(ii) The party of second part shall become the absolute owner of the shop at _________ and party of the
first part and third part shall have no rights in respect of the said shop. (more particularly described in
Schedule B)
(iii) The party of third part shall become the absolute owner of the shop at _________ and party of the first
part and second part shall have no rights in respect of the said shop (more particularly described in
Schedule C)
(2) That the relevant title documents and papers pertaining to the abovementioned properties are already in
the possession of the respective parties to this deed.
(3) That the parties to this deed hereby declare that this partition deed is executed by all of them out of their
free will and consent without any duress, coercion or undue influence.
(4) That the parties further covenant that the partition effected by this deed shall not be re-opened under any
circumstances whatsoever.
(5) The parties hereto shall get their names entered in the record of rights in respect of the property given to
their respective shares.
(6) That all the expenses of stamp duty and registration charges and other incidental charges have been
borne out by the parties hereto equally.
SCHEDULE OF THE PROPERTIES PARTITIONED
SCHEDULE ‘A’, ‘B’ ‘C’
(1) Description of Property ‘A’

(2) Description of Property ‘B’
(3) Description of Property ‘C’
IN WITNESS WHEREOF, the parties have signed this deed on the day, month and year as first written
hereinabove.
Sd. of Party of the First Part
Sd of Party of the Second Part
Sd. of Party of the Third Part
WITNESSES
1. ____________
2. ____________
Specimen No. II
DEED OF PARTITION BETWEEN TWO CO-OWNERS
THIS DEED OF PARTITION is made on this ________day of ________ at __________
BETWEEN
PAN: _______Hereinafter called the “party of the First Part”.

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16.9 Partition
AND
Hereinafter called the “party of the Second Part”.
WHEREAS the party of the first part and party of the second part are co-owners and have equal share with respect
to the agricultural land bearing no ____ admeasuring ____ at Village _____. more particularly described in the
schedules of this deed of partition.
AND WHEREAS the parties to this deed had purchased the properties at___________ more particularly described
in the Schedule I and II from one Mr. ______________ vide a Registered Sale Deed dated __________.
AND WHEREAS the family members of the party of the first and second part do not get along well with each other
and therefore the parties have now mutually agreed to partition/divide the said properties so as to avoid any future
dispute and to peaceably and quietly enjoy the said properties.
AND WHEREAS the parties after mutual discussions and deliberations and after considering the pros and cons,
have agreed to carry out partition of the said properties amicably and without any coercion, force, fraud, etc.
AND WHEREAS the party of the first part has agreed to assign the said land described in Schedule I written herein
below comprising of area of_______ acres to the party of the second part and the party of the second part has
agreed to assign the land comprising of area of ______acres as described in Schedule II to the party of the first
part.
AND WHEREAS the parties hereby agree to extend necessary co-operation to each other for better and beneficial
enjoyment of the said properties.
AND WHEREAS the parties have taken the possession of the assigned properties respectively.
(1) That in consideration of party of the first part releasing/relinquishing his right with respect to the property
described in Schedule I in favour of party of the second part, the party of the second part has also released
his right in favour of party of the first part pertaining to the property described in Schedule II.
(2) That therefore now party of the first part has become the absolute owner of the property described in
Schedule II and the party of the second part hereby declares that he has no right, title and interest with
respect to the said property.
(3) That therefore now party of the second part has become the absolute owner of the property described in
Schedule I and the party of the first part hereby declares that he has no right, title and interest with respect
to the said property.
(4) That the parties have jointly paid all the taxes, levies, etc. jointly till __________ date with respect to the
properties described in Schedule I and II and thereafter it shall be the liability of the respective owners as
per this deed of partition to pay the relevant taxes, cess, etc.
(5) That each party will execute such deed or document or do all other acts necessary which may be requisite
for more effectually assuring the party so requiring and at his cost and in the manner required by law and
to swear affidavits and appear before revenue and other authorities to have mutation entries effected with
respect to the property assigned to the party concerned.
(6) That the market value of the properties described in Schedule I and II together is Rs. __________/-
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16.9 Partition
(7) The parties hereto shall get their names entered in the record of rights in respect of the property given to
their respective shares.
(8) That all the expenses of stamp duty and registration charges and other incidental expenses have been
borne out by the parties hereto equally.
SCHEDULE I
All that piece and parcel of the agricultural land bearing S. No. ___________ ad-measuring ____________
hectares situated within registration division and district __________ sub division and Taluka ___________,
situated at Revenue village _____ and bounded as follows.
On or towards:
East:
South:
West:
North:
SCHEDULE II
All that piece and parcel of the agricultural land bearing S. No. ___________ ad-measuring ____________.
hectares situated within registration division and district __________ sub-division and Taluka ___________,
situated at Revenue village _____ and bounded as follows.
On or towards:
East:
South:
West:
North:
Sd. of Party Of The First Part
Sd. of Party Of The Second Part
WITNESSES
1. ____________
2. ____________
31 Manohar Lal Behari Lal v Onkar Das, AIR 1959 P H 252.

32 Nanjunda Setty v. State of Mysore, AIR 1964 Kant 124 : AIR 1964 Mys 124.
33 TS Swaminathan v Official Receiver of West Tanjore, AIR 1957 SC 577.
34 Sukhrani v Hari Shankar, AIR 1979 SC 1436 : 1979 SCR (3) 671.
35 Luhar Tulsidas Narsibhai v Vrajlal Lalji Vaghela, AIR 2007 Guj 77.
Page 7 of 7
16.9 Partition
End of Document
16.10 Partnership
Dr Medha Kolhatkar
PROCEDURE > PARTNERSHIP
PARTNERSHIP
16.10 Partnership
Partnership is defined under section 4 of the Indian Partnership Act, 1932 as:
“Partnership is the relation between persons who have agreed to share the profit of a business carried on by all or any of
them acting for all
Persons who have entered into partnership with one another are called individually “as partners” and collectively “a Firm”
and the name under which their business is carried on is called the “firm name”.
Therefore, it can be seen from the above definition that the following are the requirements to constitute a
Partnership:
(a) There should be an agreement entered into, orally or in writing, between the persons who intend to form a
partnership.
(b) The partnership is formed with the object to share the profits of business which the parties intend to carry
on and the business must be carried on by all the partners or by any of them acting for all of them.
(c) Partnership can be inferred even by conduct of the parties.
(d) Section 6 of the Indian Partnership Act, 1932 states:
6. Mode of determining existence of partnership—In determining whether a group of persons is or is not a firm, or
whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all
the relevant facts taken together.
Explanation I.—The sharing of profits or of gross returns arising from property by persons holding a joint or common
interest in that property does not of itself make such persons partners.
Explanation II.—The receipt by a person of a share of the profits of a business, or of a payment contingent upon the
earning of profits or varying with the profits earned by a business, does not of itself make him a partner with the persons
carrying on the business;
and in particular the receipt of such share or payment—

Page 2 of 11
16.10 Partnership
(a) by a lender of money to persons engaged or about to engage in any business.

(b) by a servant or agent as remuneration.
(c) by the widow or child of a deceased partner, as annuity, or
(d) by a previous owner or part owner of the business, as consideration for the sale of the goodwill or share
thereof.
does not of itself make the receiver a partner with the persons carrying on the business.
The word “person” in section 4 of the Partnership Act means only natural and legal persons.36 A person competent
to enter into contract can enter into a Partnership. A minor cannot be a partner in a firm; however, with the consent
of all the partners he can be admitted to the benefits of the partnership (Section 13).
The liability of the partners is joint and several.
16.10.1 Duration of Partnership
A partnership can be entered into for a specific duration or it may be limited to a particular adventure, as laid down
in section 8, or it may be partnership at will. It is pertinent to note that where the duration of the partnership is not
ascertained and the partnership is also not for a particular adventure then, as per section 7 of the Act, the
partnership shall be deemed to be a partnership at will.
16.10.2 Capital of the Firm
Generally, a Partnership Firm has its own capital to carry on its activities; however, it is not necessary that each
partner must contribute to the capital of the firm. Capital of the firm may be in the form of money or any other
property.
Capital of a firm is, however, different from the assets of the firm. On dissolution, the capital contributed by the
partner is refundable to him subject to payments of all the debts and liabilities. Hence, it is essential to provide
specifically about the capital contributed by the partner/s at the time of formation of the partnership firm.
16.10.3 Authority of Partners
The contract of partnership is a variant of contract of agency; every partner is an agent of the firm for the business
of the firm (Section 18).
Besides the express authority that may be provided in a partnership deed, every partner has the implied authority to
bind the firm, by doing an act in the course of the business of the firm. However, unless there is a usage or custom
of trade to the contrary, a partner has no implied authority to do the following acts:
(a) Submit a dispute relating to the business of the firm to arbitration.

(b) Open a bank account on behalf of the firm in his own name.
(c) Compromise or relinquish any claim or portion of claim by the firm.
(d) Withdraw a suit proceeding filed on behalf of the firm.
(e) Admit any liability in a suit or proceeding against the firm.
(f) Acquire immovable property on behalf of the firm.
(g) Transfer immovable property belonging to the firm, or
(h) Enter into partnership on behalf of the firm.
Therefore, it becomes amply clear that a partner must not do any of the above acts without consulting the other
partner/s.
16.10.4 Rights and Duties of Partner

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16.10 Partnership
The rights of a partner are determined either by the partnership deed or by the course of dealing. In the absence of
any contract, a partner shall have the following rights:
(1) To take part in the conduct and management of the business of the firm.
(2) To express his opinion in deciding any matter when a difference of opinion arises. While ordinary matters
may be decided by a majority decision, there can be no change in the nature of business unless all the
partners agree unanimously.
(3) To have an access to, inspect and copy any of the books of the firm.
(4) To share the profits of the business equally, the partners shall bear the losses equally too.
(5) To receive interest on capital, if so agreed, out of profits only.
(6) To receive interest @ 6% p.a. or any payment or advance, in excess of the agreed amount of capital,
made for the purpose of the business.
(7) To be indemnified by the firm in respect of payments made and liabilities incurred, either in the ordinary
conduct of the business or in an emergency to protect the firm from any probable loss.
(8) To do all such acts necessary to protect the firm from losses, as a person of ordinary prudence would do in
his own case.
(9) To retire from the firm—(a) with the consent of all other partners, or (b) in accordance with the terms of the
deed, or (c) by giving a notice to all the other partners, of his intention to retire.
(10) To dissolve the firm by giving notice to all the partners, for its dissolution.
16.10.4.1 Duties of partner
(a) To carry on the business of the firm to the greatest common advantage, is the fundamental duty of each
partner. Each partner should attend diligently to his duties in the conduct of the business.
(b) To be just and faithful to each other.
(c) To render true accounts and full information of all things affecting the firm to any partner or his legal
representative.
(d) To indemnify the firm for any loss caused to it by his fraud or willful neglect, in the conduct of the business
of the firm.
(e) Not to ask for remuneration for taking part in the conduct of the business, unless so expressly agreed.
(f) To shoulder the responsibility even in the firm’s losses.
(g) Not to derive secret profits from any transaction of the firm or from the use of the property or business
connection of the firm or the firm name, unless there is a contract to the contrary.
(h) Not to carry on a competing business to that of the firm, unless there is an agreement to the contrary.
16.10.4.2 Property of partnership
All the assets, movable and immovable property brought in by any or all the partners into the firm, and also the
goodwill of the firm constitutes the property of the partnership firm.
16.10.4.3 Admission of a partner
No person can be admitted into partnership without the consent of the other partner or partners, unless there is any
contract to the contrary (Section 31).
16.10.4.4 Expulsion of a partner
Generally, a partner cannot be expelled from the firm by any majority of partners. Thus, a partner may be expelled
only when all the other partners unanimously agree to it. However, a partner may be expelled if the following
conditions are satisfied:
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16.10 Partnership
(a) The partnership deed expressly contains the power of expulsion.

(b) Such power is exercised by majority of partners.
(c) The majority must exercise this power in absolute good faith in the interest of firm (Section 33(1)).
Where a partner cannot be properly expelled it is better to go for dissolution of the firm. An improper expulsion
would be of no effect and the expelled partner would be reinstated in his position.
16.10.4.5 Insolvency of a partner
When a partner is declared as insolvent, he ceases to be a partner from the date of his insolvency, whether or not
the firm is dissolved by such insolvency (Section 34). Unless the partnership deed contains a contrary provision, the
firm shall be dissolved on insolvency of any partner.
In case the partnership deed specifically provides that the firm shall not be dissolved on insolvency of any partner,
the estate of the insolvent partner shall not be liable for any act of the firm, and the firm is not liable for any act of
the insolvent partner done after the date of his insolvency.
16.10.4.6 Death of a partner
The death of a partner ordinarily results into the dissolution of the firm, as regards all the partners. However, the
partners may agree otherwise, by way of a provision in the partnership deed that is they may agree that the death
of any of partners will not cause the dissolution of the Firm and the surviving partners shall continue the business of
the firm (Section 42).
16.10.4.7 Retirement of a partner (section 32)
A partner may retire
a) with the consent of all other partners,

b) in accordance with an express agreement by the partners, or
c) where the partnership is at will, by giving notice in writing to all the other partners of his intention to retire.
16.10.4.8 Dissolution of partnership
A partnership may be dissolved in the following manner:
a. as a result of any agreement between all partners;

b. by adjudication of all the partners or all the partners but one as insolvent; or
c. by the happening of an event which makes it unlawful for the business of the firm to be carried on in
partnership; or
d. by events such as:
i. efflux of time
ii. death of a partner
iii. due to any incapacity arising in any one partner, i.e., insanity or bankruptcy.
If a firm is unregistered it cannot enjoy the following benefits:
i. a partner in an unregistered partnership firm cannot sue the firm for enforcing any rights under the Indian
Partnership Act
ii. cannot claim setoff in a dispute with a third party
iii. the firm cannot sue third parties whereas the third parties would be able to sue the firm irrespective of
registration.
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16.10 Partnership
16.10.5 Contents of Partnership Deed
The agreement of partnership may be oral or written. However, in order to avoid any dispute, it is always desirable
to have a written agreement which is commonly known as partnership deed. From the Income tax point of view also
a partnership deed is a pre-requisite for the assessment of the firm, as a firm.
A partnership deed is a contract in writing of the partnership entered into by the partners. It is blue print of the rights
and liabilities of partners, as to their capital, profit sharing ratio, drawings, interest on capital, commission, salary,
etc., and about the terms and conditions as to the working and functioning of the firm, and the dissolution of the
partnership business.
The contents of the partnership deed can be broadly divided into two categories, the general clauses in the
partnership deed and the special clauses in the partnership deed.
16.10.6 General Clauses
The following clauses are generally required to be clearly and explicitly stated in every Partnership Deed:
(a) Name and style of the firm, nature of business and place/s of business
(b) Commencement, duration and determination of partnership business
(c) Details about capital to be contributed by the partners separately
(d) The Profits and losses sharing ratio of the partners in the firm
(e) Withdrawals by the partners from the capital or assets of the firm
(f) Provision for opening bank account and the operation, thereof
(g) Maintaining of the account books of the firm and the place where the same shall be kept, and the person
who will be primarily responsible for its maintenance
(h) The preparation of balance sheet and profit and loss account
(i) The management of partnership business
(j) Increase of capital of the firm
(k) Stipulations as to loans, mortgage, etc.
(l) Provision for dissolution, disposal of the Goodwill and assets of the partnership, the realisation of the
outstanding due to the firm and restrictions regarding carrying on of similar business by the partner/s
(m) Provision that in all other matters not provided for, the Indian Partnership Act shall apply
(n) The arbitration clause in case of dispute between the parties.
16.10.7 Special Clauses
Subject to agreement between the parties, certain special clauses may be incorporated in the partnership deed, as
regards the rights and duties of partners and restrictions thereon, retirement, death and expulsion of partners, etc.
16.10.8 Registration of the Firm
Registration of a partnership firm under the Partnership Act is not compulsory, but is desirable. However,
registration of partnership firm has been made compulsory in some of the states by way of introducing state
amendments to that effect. Every change in the constitution of a partnership is also required to be registered. If it is
not so registered then there are certain serious consequences as stated in section 69 of the Act. As per section 69,
the partnership firm or its partner cannot file a suit against a third party. In Maharashtra the section is made more
stringent making registration almost compulsory. In order to avail the Income tax benefits it is necessary to register
a partnership with the department of Income tax under sections 184 and 185 of the Income Tax Act, 1961.
Registration may be applied for at any time. Registration of partnership firm may be done at any time before starting
a business or anytime during the continuing of partnership.
Therefore, it is always advisable to register the firm with the Registrar of Firms since the registered firms enjoy
Page 6 of 11
16.10 Partnership
special rights which are not available to the unregistered firms.
16.10.8.1 Application to Register the Firm
An application from duly filled along with the appropriate fees is to be submitted to Registrar of Firms of the State in
which the firm is situated.
16.10.9 Stamp Duty
The Deed of Partnership is to be stamped in accordance with the provisions of the Indian Stamp Act, 1899. Article
47 of the Bombay Stamp Act, states the stamp duty payable on the deed of partnership.
16.10.10 Specimen
Specimen No. I
PARTNERSHIP DEED
THIS DEED OF DISSOLUTION is made on this ______day of _______(month and year) at _______ (place).
BETWEEN
Mr. XY
Age: _______
Occupation: _______
PAN: _____
Party of The First Part
Hereinafter referred to as the” arty of the First Part”
AND
Mr. UV
Age: _______
Occupation: _______
PAN:_______
Party of The Second Part
(Hereinafter referred to as the “party of the Second Part”.)
AND
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16.10 Partnership
Mr. WZ
Age: _______
Occupation: _______
PAN:_______
Party of the Third Part
Hereinafter referred to as the “party of the Third Part”.
WHEREAS –
The parties above named desire to carry on the business of _____ at ________ place and in future at such other
places as the parties may mutually decide to do so.
The parties hereto have proposed to commence and to carry on business in partnership on the following terms and
conditions and have proposed to execute this deed of partnership.
NOW THEREFORE THIS DEED WITNESSES AND IT IS HEREBY MUTUALLY AGREED BY AND BETWEEN
THE PARTIES AS FOLLOWS:
(1) The parties hereby agree to carry on the business of _________ in partnership on the terms and conditions
herein set out under the name and style of __________.
(2) The partnership shall commence its activities and come into effect from _____ date and the period of the
partnership shall be __________ years from the date mentioned above. The parties may extend the said
period by mutual consent.
(3) The partnership shall have its office at ___________ that will be the registered office of the firm and the
parties may open branches at such other places as may be suitable and mutually agreed upon.
(4) The capital of the firm in the beginning shall be Rs. ____________/- to be contributed by the partners as
under:
(a) Party of the 1st part – Rs. ___________
(b) Party of the. 2nd part – Rs. __________
(c) Party of the. 3rd Part – Rs.__________
And the party of the third part has also brought in his immovable property, i.e., the
premises where the registered office of the partnership firm shall be.
(5) The net profits and losses of the firm shall be shared by the partners hereto in the following proportions:
(a) Party of the first part – 20%

(b) Party of the second part – 20%
(c) Party of the third part- 60%
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16.10 Partnership
The net profit means the gross profits made in each year less the expenses and other outgoings in respect
of the business of the firm including salaries and wages of the staff, taxes and other commissions paid.
(6) The firm shall regularly maintain in the ordinary course of its business a true, correct, complete account of
all its incomings and outgoings and all of its assets and liabilities in proper books of accounts and the same
shall be kept at the firm’s place of business. The accounting year of the firm will be 1st April to 31st of March
of each year.
(7) At the end of each accounting year, an account of the business carried on in that year will be made and the
statement of the accounts, i.e., the Balance Sheet and the Profit and Loss account will be prepared and
signed by the partners.
(8) The party of the third part will be managing the firm and will be primarily responsible for carrying on the day
to day business of the firm. The policy decisions however will be taken with the consent of all the partners.
The party of the third part will be paid Rs. _________/- per month as remuneration.
(9) The partnership firm shall open a bank account in_________Bank in order to transact the business of the
firm and the authority to operate such account shall be given to any partner/s as mutually agreed.
(10) No partner shall without the written consent of the partners do any of the following act, deeds or things:
(a) Either directly or indirectly conduct/carry on any business activity competing with the business of this
firm.
(b) Transfer his interest in the firm by mortgage, sale or otherwise, introduce or attempt to introduce any
person into the firm under whatever name but being entitled to claim right in the business of the
partnership firm.
(c) To withdraw any amount for his own benefit or use or for any other reason without the consent of the
other except to the extend herein before provided.
(d) Commit any act whereby the property of the firm may become liable.
(e) Submit any dispute with any other person to arbitration or compromise or relinquish the claim.
(f) Withdraw any legal suit of proceeding filed by the firm, admit any liability of the firm, borrow any monies
for or in the name of the firm or create any security or charge on the assets of the firm.
(g) Stands as guarantor or surety for any person in the name of the firm or for and on behalf of the firm.
(11) The parties agree to carry on the business of the firm:
(a) to the greatest common advantage of the firm and to be just and faithful to each other;
(b) render true accounts and full information of all the transactions and monies affecting the firm to the
other;
(c) indemnify the firm against any loss caused to it by willful negligence or fraud in the conduct of the
business;
(d) to attend to the business of the firm diligently and actively.
(12) All the assets of the firm including the goodwill, stock in trade, benefit of the business, benefits of contracts
will belong to the partners in proportion to their respective shares in the profits of the firm and the property
on which the firm shall carry on the business shall be used by the partners exclusively for the business of
the firm.
(13) No partner shall be entitled to dissolve the partnership during the said period of partnership for ___ years.
However, any party hereto desires to retire from the firm he shall give to the others atleast one month’s
previous notice about the same and on the expiration of the said notice period he shall be deemed to have
retired from the partnership.
(14) Upon retirement from the firm the said partner will not be entitled to carry on the same or similar business
as that of the firm directly or indirectly for a period of ______ years from the date of retirement and he shall
not be entitled to carry on any business in the same name as that of the firm.
(15) Where a partner retires from the partnership, an account of the assets and profits or losses of the firm to be
calculated and after ascertaining his share the same will be paid to him lump sum or installments as may
be agreed upon or in the absence of agreement as may be decided by the majority.
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16.10 Partnership
(16) The partnership will stand dissolved on the expiration of the duration of _________ years unless the
partners or the majority of them desire to continue the partnership for such further period as may be
decided by majority.
(17) The insolvency or death of any partner shall not dissolve the partnership between the other partners.
(18) On dissolution of the partnership an account will be made of the profits and losses and the share of each of
the partner will be ascertained and paid out of the assets of the firm or by the sale of the assets or any part
thereof.
(19) Any differences which may arise between the partners touching the business of the firm or regarding the
interpretation of these presents or regarding the liabilities of any partner or any other matter or thing
concerning the firm, the same shall be referred to arbitration of an arbitrator if agreed upon failing which,
the parties may approach the court for constituting a panel of arbitrators to resolve the dispute by means of
arbitration and the arbitration shall be governed by the Arbitration and Conciliation Act of 1996.
(20) This deed is executed in three copies and one copy will remain with each of the parties hereto.
IN WITNESS WHEREOF the parties have put their respective hands the day, month and year first above written.
Sd by Party of the First Part
Sd by Party of the Second Part
Sd by Party of the Third Part
IN WITNESS OF
Witness No. 1. ____________
Witness No. 2. ____________
Specimen No. II
DEED OF DISSOLUTION OF PARTNERSHIP
THIS DEED OF DISSOLUTION is made on this _________ day of _________ (month and year) at _________
(place).
BETWEEN
MR. XY
Age: ______
Occupation: ______
Residing at: ______
PAN: ____________
Hereinafter referred to as the “party of first part”
AND
Mr. UV
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16.10 Partnership
Age: ______
Occupation: ______
Residing at: ______
PAN:___________
Party of the Second Part
Hereinafter referred to as the “party of second part”
WHEREAS –
(1) The party of the first part and the second part mentioned hereinabove have been carrying on the business
of ____________in Partnership under the name and style as M/s. ABC Partnership firm as per the terms
and conditions in the partnership deed dated. ______.
(2) In the course of business association, some sharp differences have surfaced between the parties hereto
and therefore the partners, i.e., the party of the first part and the second part have now decided to mutually
dissolve the said partnership from ______date on the terms and conditions stated herein below.
(3) The Partnership firm by name M/s. ______ has following properties:
(i) The office premises admeasuring ______sq. mtrs. situated at ____________and more particularly
described in the Schedule I.
(ii) An amount Rs______ (Rupees______) contributed as capital to the said partnership business.
(iii) The goodwill, the stock-in-trade, furniture, two scooters (for the staff), bank balances and out
standings.
(4) The parties have mutually agreed that the property described in Schedule I, i.e., the office premises of the
said partnership firm will be the property of the party of first part (as he had provided this property
belonging to him to run the firm office). The furniture, fittings, the two scooters described in Schedule II will
be the property of the party of the Second part on dissolution and an amount of Rs ______ (brought as
capital) will be returned to party of the second part.
(5) That all other things, profits, payments bank balance, dues etc are to shared equally between party of the
first part and the party of the second part.
(1) The parties hereby agree and declare that the partnership firm by name M/s. ______having its registered
office at ______and carrying on the business of ______ is hereby dissolved with effect from ______date.
(2) That the property described in schedule I shall now be the property of party of first part and the same shall
now cease to be a part of the assets of the firm. The party of the second part hereby releases and
renounces all his rights, interests, title if any as partner of the firm from the said property.
(3) That the property described in the Schedule II shall now be the property of the party of the second part and
the same shall now cease to be a part of the assets of the firm. The party of the first part hereby now
releases and renounces all his rights, interests, title etc as partner of the firm from the said property.
(4) The accounts of the firm, its assets, profits and losses are made and settled between the partners (i.e.,
party of the first part and the second part) and the same are duly signed by the parties and the parties
confirm the same and hereby covenant and declare that no party is liable to the other in respect thereof.
(5) The parties hereby agree and undertake to sign all applications, documents and other papers as may be
required to properly transfer the properties and other assets allotted, assigned or released to the other
including all licenses and permits in the government or municipal or any other official records or otherwise.
Page 11 of 11
16.10 Partnership
The parties further agree that all costs, charges and expenses in respect thereto shall be borne by the
party requiring any such documents to be signed.
(6) The parties to this deed hereby declare and assure each other that they have not received, collected or
discharged any claim, payment, demand or credit due or to become due to the firm or incurred any debt or
liability or obligation that may now or hereafter directly or indirectly charge or affect the partnership or any
of its property or assets.
(7) It is hereby agreed that all the expenses, i.e., the stamp duty and registration charges and other incidental
charges for the purposes of execution of this Deed of Dissolution shall be borne by the parties equally.
SCHEDULE I
All that piece and parcel of the _______________situated within registration division and district __________ sub-
division and Taluka ___________, within the limits of ________ Corporation, bearing CTS No. _______ plot No.
________ carved out of the layout of S. No. ___________.
And bounded by as follows:
On or towards:
East :
South:
West :
North:
SCHEDULE II
(Give details of Schedule II)
IN WITNESS WHEREOF the parties have put their respective hands on the day and year first mentioned
hereinabove.
Sd by Party of the First Part}
Sd by Party of the Second Part}
Witnesses
1. ____________
2. ____________
36 Dulichand v CIT, AIR 1956 SC 354 : 1956 SCR 154.
End of Document
16.11 Power of Attorney
Dr Medha Kolhatkar
PROCEDURE > POWER OF ATTORNEY
POWER OF ATTORNEY

Power of Attorney is a document of agency. As stated by Butterworths: “A power of attorney is a formal
arrangement by which one person (donor/principal) gives another person (the attorney/agent) authority to act on his
behalf and in his name”. A power of attorney is executed in the form of a “Deed poll” document.
16.11.1 Principal/Grantor/Donor
The person who grants the power to the other person to act on his behalf is termed as the principal or grantor or
donor.
16.11.2 Attorney/Agent/Donee
The person to whom the power is granted is termed as the attorney or agent or donee.
In a special power of attorney some specific or particular act is required to be done by the attorney. Once the
particular act is performed then the special power of attorney comes to an end.
The Power of Attorney Act, 1882 lays down the duties of an attorney.
Duties of an Attorney:
(a) To act for, and on behalf of the donor and in the name of the donor.
(b) To perform acts/deeds in accordance with the terms of his authority.
(c) The attorney should not exceed his authority.
(d) To exercise due care and skill.
(e) The attorney should not delegate his powers unless he is duly authorised to do so.
(f) Not to take advantage of his position to obtain any benefits to himself.
(g) Not to put himself in a position where his duties as attorney conflict with his own personal interest or with
the interest of the third party.
16.11.3 General and Special Power of Attorney
A power of attorney may be general or special. A general power of attorney covers more than one subject matter
while a special power of attorney relates to a specific subject matter, though it may contain several powers relating
to the same subject matter. The test to decide whether a power is general or special is as to what is the subject
matter in respect of which the power is given. If it is restricted to some specific matter it is a special power,
otherwise it is general.37
Page 2 of 6
Where an authority is given by the principal to the agent to act on all matters relating to him it is called General
Power of Attorney. In Special Power of Attorney, the power granted by principal to the agent/attorney is to do some
specific or particular act.
A general power of attorney grants extensive powers to the attorney whereas in case of special power of attorney
only specific powers are granted to the attorney.
16.11.4 Durable and Non-durable Power of Attorney
Power of attorney stands revoked on the death of the Principal. However, if the Principal desired that the power of
attorney should continue even after his death then he has to mention in the power of attorney instrument. Such a
power of attorney is termed as durable power of attorney. If the instrument makes no such mention, then it is a non-
durable power of attorney.
16.11.5 Persons Competent to Execute Power of Attorney
Any person who is competent to contract can execute a power of attorney. A power of attorney given by a company
must be in conformity of the “Articles of Association” and bear the Common Seal of the company.
A power of attorney which creates an interest in any immovable property, i.e., charge in favour of donee is required
to be registered.
16.11.6 Construction of Power of Attorney
The principles governing the construction of power of attorney are:
(1) The operative part of the deed is controlled by the recitals;

(2) Where an authority is given to do particular acts, followed by general words, the general words are
restricted to what is necessary for the performance of the particulars;
(3) The general words do not confer general powers but are limited to the purpose for which the authority is
given and are construed as enlarging the special powers only when necessary for that purpose;
(4) A power is construed so as to include all incidental powers for its effective execution.38
(5) By a general or special power, a donor cannot, however, delegate to the attorney any function which
relates to the status of the donor, such as the status of a trustee, his professional work, etc. His officer also
cannot delegate his function or duty to give evidence in court. He cannot delegate his power to make a will
or to make an affidavit on oath. He cannot delegate his duty to sign the income tax returns unless he is
physically incapable to do so.39
(6) A power of attorney is an expressed authority as it is in writing.
16.11.7 Revocation of Power of Attorney
A power of attorney can be revoked or it would stand revoked under the following circumstances:
(1) It is revoked by the principal unless it is irrevocable

(2) If the principal dies or becomes of unsound mind
(3) If the business of the donor comes to an end
(4) If the principal/donor is declared insolvent
(5) With the efflux of time
Butterworth has summarised the events under which a power of attorney is revoked, they are as follows:
(i) By express revocation

(ii) By implied revocation, when the donor does anything which is inconsistent with the continued operation of
the power
Page 3 of 6
(iii) By donor’s death

(iv) By donor’s bankruptcy
(v) By the donor’s supervening mental incapacity
(vi) The winding or dissolution of corporate donor
(vii) By attorney’s death, if he is the sole attorney or has been appointed to act jointly (and not jointly and
severally) with others
(viii) By the attorney’s supervening mental incapacity, if he was the sole attorney
(ix) By the winding up or dissolution of corporate attorney
(x) By efflux of time
(xi) By fulfillment of the purpose
(xii) By any event which renders the agency or its object illegal.40
A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property.
The power of attorney is creation of an agency whereby the grantor authorises the grantee to do acts specified
therein, on behalf of the grantor, which when executed will be binding on the grantor as if done by him. It is
revocable in a manner known to law. Even an irrevocable attorney does not have an effect of transferring title to the
grantee.41
16.11.8 Drafting of Power of Attorney
Every Power of Attorney needs to have the following clauses:
1. The identity of the Principal and the Attorney

2. The purpose for granting the Power of Attorney and the said object of granting/ execution Power of
Attorney should be legally valid.
3. Duration of Power of Attorney If no duration then whether Power of Attorney is durable or non-durable
4. Enumerate all the powers granted to the attorney in case of General Power of Attorney
5. In Special Power of Attorney, the specific subject matter or particular act pertaining to which the power is
granted/authorized should be clearly mentioned. So also, the time frame within which the specific act
should be done must be stated in the power of attorney.
16.11.9 Execution of Power of Attorney
Section 4 of the Power of Attorney Act, 1882 provides that, when a power of attorney is executed by the donor and
the execution being verified by affidavit, statutory declaration or other sufficient evidence, such an affidavit or a
declaration should be filed in the High Court or the District Court within whose local limits of jurisdiction it is made.
Thereafter the court, on application will issue a certified copy of the power of attorney and such certified copy shall
without further proof be sufficient proof of the contents of the instrument and of the deposit made thereof in the
court. This procedure is very rarely followed and is almost unknown to many. However, the other and the most
common method for execution of power of attorney is to sign it in the presence of and to get the same authenticated
by a notary public or by any Judge, Magistrate, Indian Counsel or Vice Counsel or representative of the Central
Government. It is better to get the power of attorney authenticated so as to avail the presumption under section 85
of the Evidence Act, 1872. By virtue of section 85, a presumption is raised as to valid execution if it is executed in
the aforesaid manner.
16.11.10 Stamp Duty and Registration
A power of attorney is not required to be registered under the Registration Act, 1908. However, it is to be borne in
mind that by virtue of the provisions of sections 32 and 33 of Evidence Act, a power of attorney executed for the
purpose of presenting a document for registration must itself be registered.
A power of attorney authorising the donee to sell an immovable property and for consideration is required to be fully
Page 4 of 6
stamped as a conveyance but need not be registered. Power of attorney is required to be stamped as per Article 48
of the Stamp Act.
Under the Bombay Stamp Act, a power of attorney given to a promoter or builder for development of property is
required to be stamped as a conveyance as per the market value of the property.
16.11.11 Specimen
Specimen No. I
GENERAL POWER OF ATTORNEY
Know all men by these presents that I __________ son of __________Age_____ Occupation
____________Residing at _______________ about to leave India for _____ purpose on date _______whereas, I
am unable to attend to all my property and other matters personally and therefore I hereby nominate, constitute and
appoint my brother Name ___________ Age ___ Occupation _________ Residing at ________
To be my true and lawful attorney (hereinafter called attorney) for me and in my name and on my behalf to do all or
any of the acts, deeds and things hereinafter mentioned that is to say.
(1) To operate all my current, savings bank a/c, fixed deposit/s or other accounts and also or safe deposit
lockers standing with any bank or bankers and to open and operate in my name all bank accounts
whatsoever.
(2) To sell, endorse, transfer and assign all or any government securities, units, bonds, NSCs, shares, stock or
debentures of any description whatever corporate or any other securities which do now or shall hereafter
stand in my name or to which I am now or may at any time hereinafter be entitled.
(3) To demand, and receive from any person, company, corporation, government or other statutory body,
deposits, dividends, interests, bonuses or any other sums that may become due to me in respect of any of
my investments and likewise any capital sum represented by or compromised in any of my investments
and when the same shall be payable or repayable and for any such purpose to sign, endorse and execute
all receipts, dividends and interest warrants, cheques, releases etc. that may be necessary or usual in the
circumstances.
(4) To invest any moneys belonging to me in company deposits, provident fund, accounts, shares, debentures,
bonds, units, NSCs, mutual funds or corporate or other securities in such manner and upon such terms
and conditions as my attorney shall in his absolute discretion think fit and from time to time withdraw any
such moneys and apply the same for any purpose he may think fit.
(5) To apply for the inspection of and to inspect all records and documents which I myself would have been
entitled to inspect and take copies of the same thereof.
(6) To appear and file petitions and applications before the appropriate authority for and on my behalf in
respect to the recovery of any claims relating to the shares, units and other investments.
(7) To draw, sign, endorse and negotiate all cheques, promissory notes, bills of exchange or other orders for
payment of money or delivery of property of every description.
(8) To sign and file returns under the Income Tax Act, 1961 and any other statutes to appear before
appropriate authorities for purpose of assessment of taxes and to represent me before any tribunal or
authority concerned and for all such purpose to sign, execute and deliver all such documents as may
become necessary or expedient.
(9) To appear and act on my behalf in all courts, civil, revenue or criminal whether original or appellate and
any other offices of Government or District Board, Municipal Board or any other competent authority in
connection with or in relation to exercise of the powers hereby conferred.
(10) To appoint and discharge any advocate, solicitor, revenue agents or any other legal practitioner if needed
and required.
(11) To compromise, compound and withdraw any or all actions, suits, proceedings claims and demands
whatsoever in connection with the powers hereby conferred.
Page 5 of 6
(12) To purchase, take or lease on otherwise acquire lands, houses, flats as shall be considered necessary and
expedient for or in relation to any of the purposes or effects aforesaid.
(13) To perform all obligations related and incidental to such purchase of property such as stamp duty,
registration charges, payment of taxes and levies in order to complete all formalities of said sale
transaction.
(14) To execute and deliver on my behalf tenancy agreement, leave and Licence Agreement, lease deed, for
letting or leasing or licensing the whole or any part of the property so purchased or acquired by my
attorney.
(15) To repair from time to time and do other acts and things to keep the said building in good repair and
condition.
(16) To collect and receive from the licensees, tenants and occupiers of such properties all licence fees, rents
and other sums of money that may be due and to take all lawful proceedings for recovery of the said sum.
(17) For the latter doing and executing of the matters and thing aforesaid, I hereby further grant to the said
attorney full power and authority to substitute and appoint in his place and stead on such terms and salary
as he thinks fit, one or more attorney or attorneys to exercise for me as my attorney any or all the powers,
authorities hereby confirmed and to revoke duly such appointment from time to time and to substitute or
any other or others in the stead of such attorneys or attorney as the said attorney shall from time to time
think fit.
(18) And I hereby agree to ratify and confirm and promise at all times to ratify and confirm whatsoever the
attorney shall lawfully do and cause to be done in and about the premises aforesaid.
Witness
I know the Executant Executant
Specimen No. II
SPECIAL POWER OF ATTORNEY
Know all men by these presents that I __________ son of __________Age_____ Occupation
____________Residing at _______________
Do hereby send greetings
(a) That I own the property bearing CTS No. _________ situate at ___________ admeasuring ____________
sq. mtrs.
(b) That I have sold off the said property to Mr. ______________ and have also executed a Sale Deed on
___________ date in his favour.
(c) That the sale deed has been executed in favour of Mr.___________ however the formality of registering
the sale deed remains and it is not possible for me to attend the office of the Registrar of Assurances for
completing the registration formalities as I am required to take my mother by name Mrs._______________
to ____________hospital for surgery and treatment and hence I have decided to appoint Mr. ___________
to be my lawful attorney in this behalf.
I therefore do hereby nominate, constitute and appoint Mr. __________ Age: ____________
Occupation:___________ Residing at: ______________
To be my true and lawful attorney (hereinafter called attorney) to do for me and on my behalf all or any of following
acts, deeds and things regarding registration and registration formalities with regard to the sale deed executed by
me on ____________ date pertaining to the property mentioned herein above in favour of Mr. ______________.
(i) To present the Sale Deed for registration and to admit the execution thereof before the Registrar of
Assurances to comply with other registration formalities including payments to be made for obtaining
copies, acceptance and acknowledgement of receipts.
Page 6 of 6
(ii) To apply and obtain certified copies of the registered sale deed and other relevant documents.
(iii) To do all such acts, deeds and things as may be necessary for due and effectual execution of the powers
hereby conferred by me on my said attorney.
I hereby confirm and agree to ratify all acts and deeds done by my attorney in this regard, which shall be deemed to
have been done by me personally and I hereby undertake to confirm, own and ratify all and every act whatsoever
that my said attorney shall lawfully do or may cause to be done in my name, on my account and behalf and for my
benefit by virtue of this authority conferred on him by this power of attorney.
IN WITNESS WHEREOF I HAVE SIGNED THE SAME ON THIS ______________DAY OF _____________ AT

_______________.
I know the Executant Executant
Witness
37 Western India Theatres v Ishwar Bhai, AIR 1959 Bom 386 : (1958) 60 Bom LR 1288 : ILR 1959 Bom 295.
38 Syndicate Bank, Bangalore v IK Amitha, ILR 1985 Kar 1900 : 1985 (2) Kar LJ 145.
39 Butterworth, vol. 31, 5th Edn, p 499.
40 Butterworth, Vol 31, 5th Edn, p 506.
41 Suraj Lamp and Industries Pvt Ltd v State of Haryana, (2012) 1 SCC 656.
End of Document
16.12 Releases/Relinquishments
Dr Medha Kolhatkar
PROCEDURE > RELEASES/RELINQUISHMENTS
RELEASES/RELINQUISHMENTS
The word release implies a discharge or renunciation of a right of action. To release is to set free or absolve.
Release or Relinquishment is a specie of Transfer of Property. A person is said to have released or relinquished his
right when he gives up his claim over a specified property in favour of another. Release may take the form of a
principal transaction and sometimes it is a reciprocal or consequential transaction.
Releases are broadly of two types:—
(a) A form of conveyance by which an interest in land or in goods and chattels is transferred by one person to
another person who has already a vested interest therein and
(b) A discharge or renunciation by one person of some right of action or claim which he has against another or
against another’s property.42
Generally, when property is owned jointly by two or more persons, release deed or relinquishment deed is
executed.
A deed or release may be executed even if a person has no interest in the property. This is done either when his
claim to the interest is disputed or for the sake of caution and as a matter of estoppel. But in such a case it is not
proper or desirable to obtain a deed of release. ‘Release’ implies an interest which is intended to be released or
given up. The correct form of document would be a declaration stating that the declarant claims no interest in the
property.43
A disclaimer is a negative form of release. In case of a disclaimer, the person disowns his interest in a property
though he has an interest in the property. However, in a release the releasor admits that he has an interest in the
property, but he releases it, i.e., he transfers it to the releasee. A release deed can be executed with or without
consideration.
16.12.1 Drafting of a Release Deed
(i) A release deed or relinquishment deed can be drafted either as a deed poll document or can be drafted as
a deed.
(ii) The specific property which is the subject matter of release should be clearly described along with the
nature and extent of interest of the releasor in the said property.
(iii) The reasons for the release should be stated in the deed
(iv) In a release deed, all releasors and all persons having an interest in the claim or property should be
included as parties to the deed.
Page 2 of 4
16.12.2 Stamp duty
As per Article 55 Schedule I of the Stamp Act, a simple release deed is chargeable with stamp duty like a bond
(Article 13). Releases which fall within the provisions of section 23-A(1) of Stamp Act are chargeable to duty, same
as the instrument.
16.12.3 Registration
Where the deed of release is executed with respect to an immovable property, it shall be registered. Release in
respect of movable property, personal right or obligation is not required to be compulsorily registered.
16.12.4 Specimen
Specimen No. I
RELEASE DEED
(Immovable Property)
THIS DEED of RELEASE is made and executed at ____________ on this __________day of _________20
BETWEEN
Hereinafter referred to as ‘the Releasor’ ’
AND
Hereinafter referred to as ‘the Releasee’
The party of the Other Part
WHEREAS the party of the one part and party of the other part are real brothers and are the members of Hindu
joint family and coparcenary.
AND WHEREAS the parties hereto are the joint owners of the immovable property situate at ___________(place)
and more particularly described in the schedule hereinunder written. There are no other coparcenary members
other than the parties hereto.
AND WHEREAS the releasor does not desire to claim any interest or share in the said property as he has settled
abroad (state the details) and has achieved a respectable position in his profession.
AND WHEREAS the releasor has therefore decided to release and relinquish his share in the said property so as to
enable the releasee to enjoy the said property absolutely and exclusively as per his wishes.
NOW THIS DEED WITNESSES THAT:

Page 3 of 4
(1) That the releasor does hereby releases, relinquishes, surrenders and transfers in favour of the releasee all
his rights, title and interest in respect of the said property and he is relinquishing all his rights out of free will
and without any coercion, fraud, undue influence, etc.
(2) That the releasor hereby confirms that he has no claims or demands of whatsoever nature against the said
property and confirms that the releasee is now in exclusive possession of the said property. And that the
releasee will be the sole owner of the said property.
IN WITNESS WHEREOF the parties have put their respective hands on the day, month and year first written herein
above.
Sd by Releasor
Sd by Releasee
In presence of witness
1. ____________
2. ____________
Specimen No. II
RELEASE DEED
THIS DEED of RELEASE is made and executed at ____________ on this __________day of _________20 ____
BETWEEN
Hereinafter referred to as ‘the Releasor’
The party of the One Part
AND
Hereinafter referred to as ‘the Releasee’
WHEREAS the party of the one part is the real/full brother of the party of other part and they jointly own certain
movable properties such as jewellery, books, antique furniture, which is more particularly described in the schedule
written herein below.
AND WHEREAS the releasor has decided to spend his remaining life to promote and preach Yoga and therefore
has no interest in the movable properties which are held jointly by him and his sister i.e. party of the other part.
AND WHEREAS the releasor has therefore decided to release and relinquish his share in the said movable
properties in favour of his sister i.e. the party of the other part.
Page 4 of 4
NOW THIS DEED WITNESSES AS UNDER:—
(1) That the releasor hereby releases, relinquishes his share in the said movable property consisting of books,
jewellery, antique furniture, etc. described in detailed in schedule hereinbelow, absolutely and forever in
favour of the party of the other part.
(2) That the releasor hereby confirms that the movable property has been delivered to the releasee and is now
in exclusive possession of the party of the other party. i.e. the release.
MOVABLE PROPERTY
Jewellery
Books
Antique Furniture
IN WITNESS WHEREOF the parties have put their respective hands on the day, month and year first .written
herein above.
Sd by Releasor
Sd by Releasee
1. ____________
2. ____________
42 Butterworth’s 59th Edn, Vol 33, p 160.

43 M Krishna Rao v ML Narasikha Rao, AIR 2003, A.P. 498.
End of Document
16.13 Sale Deed/Deed of Conveyance
Dr Medha Kolhatkar
PROCEDURE > SALE DEED/DEED OF CONVEYANCE
SALE DEED/DEED OF CONVEYANCE

Sale is one of the species of transfer under the Transfer of Property Act, 1882. Section 54 of the Transfer of
Property Act defines Sale as “Sale is a transfer of ownership in exchange for a price paid or promised or part-paid
or part-promised.”
From the above definition, the following are the ingredients of sale:—
(a) There should be a transfer

(b) The transfer must be of full ownership
(c) The transfer must be backed by consideration
(d) Consideration implies the price paid or promised or partly paid and partly promised
A deed of sale is popularly called as a deed of conveyance. The contract for sale of immovable property must be in
writing. Section 55 of the Transfer of Property Act, lays down the duties, obligations and rights of the vendor and the
purchaser under an agreement for sale, as well as for sale. However, this section applies only in the absence of a
contract to the contrary.
16.13.1 Duties and Obligations of the Vendor
Stated below are the duties and obligations of a vendor:—
(a) To disclose to the buyer any material defect in the property and in the title, of which the seller is and the
buyer is not aware, and which the buyer could not with ordinary care discover.
(b) To produce documents of title in his possession and power.
(c) To answer all requisitions.
(d) On payment of the amount (price) (as agreed) to execute a deed of conveyance of the property in favour of
the purchaser.
(e) To take as much care of the property and all the documents of title relating thereto, pending the delivery of
possession to the purchaser.
(f) To handover possession of the property, on completion of sale.
(g) To pay all taxes and other outgoings and encumbrances upto the date of sale.
(h) To deliver title deeds to the purchaser on completion.
(i) To give a covenant for title.
16.13.2 The Vendor/Seller has the following Rights

Page 2 of 7
(a) To receive rents of the property till possession is delivered to the purchaser.
(b) To receive the price on completion of sale.
(c) To have a charge on the property for unpaid share/price.
16.13.3 Duties of the Purchaser
(1) To disclose to the vendor/seller the nature or extent of the vendor’s interest in the property not known to
the vendor but known to the purchaser (if applicable).
(2) To pay price as agreed, on completion.
(3) To pay all taxes and outgoings of the property after the completion of sale.
16.13.4 Rights of the Purchaser
(1) Where the ownership of the property has passed to him, to the benefit of any improvement in or increase in
value of the property, and to the rents and profits thereof;
(2) To have a charge on the property for money paid to the vendor, if the vendor improperly fails to complete
the sale.
16.13.5 Contract for Sale
The contract for sale of immovable property is usually preceded by an agreement for sale. The terms and
conditions are thereof settled at the time of agreement for sale.
The following are the contents of an agreement for sale:
(1) Description of the deed

(2) Date and place
(3) Name and description of the parties
(4) Recitals leading to the agreement
(5) The description of the property intended to be sold
(6) Consideration
(7) Mode of payment of consideration
(8) Acknowledgment of receipts
(9) Covenant as to marketable title
(10) Covenant regarding encumbrance
(11) Covenant as to production and inspection of title deeds
(12) Possession and delivery of possession
(13) Taxes, levies, cesses etc.
(14) Covenant as to other terms as may be applicable (recovery of rent, restrictive or protective clause if any)
(15) Date of execution of conveyance (sale deed)
(16) Stamp duty and registration
16.13.6 Deed of Conveyance
A document, whereby an immovable property is sold by one party to another is generally called a deed of
conveyance or a sale deed. As per section 55(1)(d), the vendor shall, on payment of price execute a conveyance.
The recitals in a sale deed or conveyance are:
Page 3 of 7
(1) Description of deed

(2) Date and place of execution
(3) Full description of the parties
(4) Recitals
(5) Testatum
(6) Consideration
(7) Receipt
(8) Operative part
(9) Description of the property
(10) All estate clause
(11) Habendum
(12) Covenant, obligations, terms and conditions
(13) Testimonium
(14) Signatures
(15) Attestation
(16) Stamp duty and registration
16.13.7 Stamp Duty
Sale Deed is chargeable with the stamp duty as per Article 23 of the Indian Stamp Act, 1899 (subject to state
amendments).
Where the value of the immovable property is more than Rs. 100, it is required to be compulsorily registered under
section 17 of the Indian Registration Act.
Registered sale deed reinforces valid execution of the sale deed. A registered document carries with a presumption
that it was validly executed. It is, therefore, the party challenging the genuineness of the transaction to show that
transaction is not valid in law.44
16.13.9 Specimen
Specimen No. I
AGREEMENT FOR SALE
THIS AGREEMENT is made on this __________day of ________ _________ at (Place)
BETWEEN
Hereinafter referred to as “the Vendor”
The party of the One Part
AND
Page 4 of 7
Hereinafter referred to as “the Purchaser”
WHEREAS
(i) The vendor is absolutely seized and possessed of or otherwise well and sufficiently entitled to property
bearing survey No. ________, Hissa No.________, admeasuring __________ situated at __________
more particularly described in the schedule written herein below and hereinafter referred to as the said
property.
(ii) The vendor has agreed to sell the said property to the purchaser at the price and on the terms and
conditions hereinafter mentioned.
NOW IT IS AGREED BETWEEN THE PARTIES HERETO AS FOLLOWS:—
(1) The vendor hereby agrees to sell, transfer and convey the said property in favour of the purchaser or his
nominees.
(2) That the consideration of Rs. _________ (Rupees_____) is to be paid by the purchaser in the following
manner:—
(i) Rs._______ (Rupees_____) at the time of execution of this agreement (earnest money).
(ii) Rs. ________ (Rupees______) on ________date.
(iii) Rs. _______(Rupees______) at the time of final conveyance/sale deed.
(3) That the vendor hereby acknowledges and admits the payment of Rs. _____ (earnest money) paid vide
cheque No. ________ drawn on _______bank.
(4) The vendor shall make out a marketable title to the said property free from all encumbrances and
reasonable doubts.
(5) The vendor shall deliver to the purchaser the title deeds relating to the said property in his possession and
power on execution of these presents for inspection and investigation of title by the purchaser or his
advocate.
(6) That the vendor hereby agrees to apply for, obtain and furnish unto the purchaser all such permissions as
may be necessary under the prevalent laws for registration of sale deed.
(7) That the purchaser hereby agrees to make the payment of the agreed consideration within the stipulated
period and enumerated in Para (2) hereinabove.
(8) That it is hereby agreed that the sale will be completed within six months from the date of execution of this
agreement.
(9) All the taxes, levies etc. due and payable against the said property shall be paid by the vendor till the
completion of sale and thereafter it will be the responsibility of the purchaser. The vendor shall handover all
the tax receipts etc. duly paid to the purchaser at the time of completion of sale.
(10) That the vendor agrees to handover actual, physical and vacant possession of the said property unto the
purchaser at the time of sale deed.
(11) That if the vendor fails to make out the clear marketable title to the said property as aforesaid then the
purchaser will have the right to cancel this agreement by giving at least 15 days’ notice to the vendor and
after the expiration of the said period the agreement shall stand terminated and the vendor agrees to return
the earnest money to the purchaser.
(12) That if the purchaser fails to perform his obligations under this agreement within the stipulated time then
the vendor shall be entitled to make time as essence of the contract and will have the right to cancel these
Page 5 of 7
presents by giving at least 15 days’ notice in writing to the purchaser. On termination the vendor will be
entitled to forfeit the earnest money paid by the purchaser.
(13) That all the expenses towards the payment of stamp duty, registration charges and other incidental
expenses in respect of these presents as well as for the sale deed shall be borne out by the purchaser.
SCHEDULE OF PROPERTY
All the piece and parcel of _____ land admeasuring ______________ Sq. mtrs. within the registration Division and
District _______ Sub-Division and Taluka ________ within the limits of _______ Gram Panchayat/ Municipal
Corporation, bearing Survey No. ________, Hissa No. _____ and is bounded as under.
ON OR TOWARDS
East :
West :
South:
North:
IN WITNESS WHEREOF the parties have put their respective hands the day and year first above written.
Sd by Vendor
Sd by Purchaser
1. ____________
2. ____________
Specimen No. II
SALE DEED
THIS DEED OF SALE is made and executed at _______ on this ______ day of ____
BETWEEN
Hereinafter referred to as “the Vendor”
(which expression shall, unless repugnant to the context and meaning thereof shall mean and include his heirs,
The Party of the One Part
AND
Hereinafter referred to as “the Purchaser”
Page 6 of 7
The Party of the Other Part
WHEREAS
(i) The vendor is absolutely seized and possessed of or otherwise well and sufficiently entitled to the property
bearing Gat No/ Survey No_____ admeasuring ________situated at ________ and more particularly
described in the schedule herein below as the “said property”.
(ii) That the said property originally belonged to one Mr. ______, who has sold the said property to the vendor
by sale deed dated ________ which is registered with the office of Registrar of Assurances at ______ at
Serial No. _______ on ________date and accordingly the name of the present vendor, i.e., Mr. _______
came to be entered into the record of rights, vide mutation entry No. ________dated ________.
(iii) That the vendor has entered into an agreement to sell with the purchaser herein on _______date which is
registered with the Registrar of Assurances at ______ at serial No. _______ on _______date.
(iv) That the purchaser has requested the vendor to execute these presents which he has agreed to do.
NOW THIS DEED WITNESSES as follows:
(1) That in pursuance of the agreement to sell dated ________ and in consideration of the sum of Rs
_________/-(total consideration) paid by the purchaser to the vendor, the vendor hereby conveys,
transfers by way of sale unto the purchaser all that piece of land bearing Gat No./Survey No. ________
admeasuring ______ situated at ______ and more particularly described in the schedule hereunder written
and referred to as the said property together with all the things permanently attached thereto or standing
thereon and all other privileges, easements, profits, rights, appurtenances whatsoever to the said property
and other premises or any part thereof belonging or anyway appurtenant thereto and ALL THE estate, right
title, interest, use possession, benefit claim and demand whatsoever at law or otherwise of the vendor to
said property hereby conveyed and every part thereof TO HOLD the same to the absolute use and benefit
of the payment of all rents, rates, dues, taxes etc. that may be payable respect of the said property.
(2) That the vendor has put the purchaser in actual physical and peaceful possession of the said property on
________ date and the purchaser hereby admits and acknowledges the same.
(3) That the vendor hereby assures unto the purchaser herein that the said property or any part thereof is
neither a subject matter of any acquisition or requisition nor subject matter of any dispute or pending
litigation.
(4) That the vendor hereby assures and declares that the vendor has in himself good right and full power and
absolute authority to sell and transfer the said property in favour of the purchaser herein.
(5) That the vendor hereby further declares and assures unto the purchaser that the title of the vendor to the
said property is clean, clear and marketable and the same is free from encumbrances.
(6) That the vendor has delivered the prior sale deed of the said property as well as property tax-bill and
receipts which are all duly paid till the date of execution of these presents.
(7) That all the expenses towards stamp duty, registration charges and other incidental expenses thereto are
to be borne by the purchaser.
THE SCHEDULE OF THE PROPERTY
All that piece and parcel of the ___________ admeasuring ____________ Sq. mtrs. situated within registration
division and district __________ Sub Division and Taluka ___________, within the limits of ________ Corporation,
bearing CTS No. _______ plot No. ________ carved out of the layout of S. No. ___________ along with.
IN WITNESS WHEREOF the parties have put their respective hands the day and year first mentioned hereinabove.
Sd. by Vendor
Sd by Purchaser
In presence of
Page 7 of 7
1. ________
2. ________
44 Jamila Begum v Shami Mohd, AIR 2019 SC 72.
End of Document
16.14 Trust
Dr Medha Kolhatkar
PROCEDURE > TRUST
TRUST
16.14 Trust
Section 3 of The Indian Trusts Act, 1882 states “A trust is an obligation annexed to the ownership of property and
arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit
of another, or of another and the owner”.
The person who reposes or declares the confidence is called the “author of the trust”. The person who accepts the
confidence is called the Trustee. The Person for whose benefit the confidence is accepted is called the beneficiary. The
subject matter of the trust is called the Trust Property or trust money and the instrument if any by which the trust is declared
is called the Instrument of Trust.
A Trust has some features which are common and similar to certain other legal relations such as contract, agency,
gift, etc.
In Halsbury’s Laws of England (3rd Edition) Vol. 33, p 87, it is observed:
a trust in the modern and confined sense of the word is a confidence reposed in a person with respect to property of which
he has possession or over which he can exercise a power to the intent that he may hold the property or exercise the power
for the benefit of some other person or object.
16.14.1 Types of Trust
A Trust is created or comes into existence mainly in two ways:—
(i) By act of party

(ii) By operation or fiction of law
(iii) By act of party, includes the following:
(a) By a document or
(b) Orally or
(c) By conduct
16.14.2 Who Can Create a Trust
As per section 7 of the indian trust act, trust may be created by:
(a) Every person competent to contract, and

Page 2 of 6
16.14 Trust
(b) with the permission of a principal civil court of original jurisdiction, by or on behalf of a minor; but subject in
each case to the law for the time being in force as to the circumstances and extent in and to which the
author of the trust may dispose of the trust property.
As per section 4 of the indian trust act, all purposes are said to be lawful unless it:
i. Is forbidden by law
ii. Defeats the provisions of law
iii. Is fraudulent
iv. Involves injury to another person or his property
v. Is immoral or against public policy
16.14.3 Subject of Trust (Section 8)
The subject matter of a trust must be property transferable to the beneficiary. it must not be merely beneficial
interest under a subsisting trust.
16.14.4 Who May be Beneficiary (Section 9)
Every person capable of holding property may be a beneficiary.
Disclaimer by beneficiary.—A proposed beneficiary may renounce his interest under the trust by disclaimer
addressed to the trustee, or by the setting up, with notice of the trust, a claim inconsistent therewith.
16.14.5 Who May be Trustee (Section 10)
Every person capable of holding property may be a trustee; but, where the trust involves the exercise of discretion,
he cannot execute it unless he is competent to contract. no one is bound to accept a trust.
Acceptance of trust.—a trust is accepted by any words or acts of the trustee indicating with reasonable certainty of
such acceptance.
Disclaimer of trust.—Instead of accepting a trust, the intended trustee may, within a reasonable period, disclaim it,
and such disclaimer shall prevent the trust property from vesting in him. a disclaimer by one of two or more co-
trustees vests the trust property in the other or others and makes him or them sole trustee or trustees from the date
of the creation of the trust.
16.14.6 Conditions Essential for a Valid Trust
For creation of a valid Trust it is essential that the author of the Trust must indicate with reasonable certainty, his
intention to create Trust, the object of the Trust, who will be the beneficiaries and the Trust property.
16.14.6.1 Intention to create
A Trust can be created by word of mouth. It must, however, be shown that there was either an express declaration
as to the Trust or that there is evidence of language or expressions used by the owner of the property to indicate
with reasonable certainty that a Trust was created.
If there is no express declaration or if there is no language, from which it can be inferred that a Trust was declared
or created, then there must be at least evidence of acts or conduct and that evidence must be clear evidence to
show that the owner of the property intended to constitute himself or another person, a trustee of the property for
someone else. No formal language is necessary to constitute an effective declaration of Trust but the language
used must be certain.
(i) That the settlor intended to constitute a trust binding in law on himself or the person to whom the property
was given and
(ii) That he intended to bind definite property by the trust.
Page 3 of 6
16.14 Trust
(iii) That he intended to benefit a definite person/s in a definite way.45
16.14.7 Private Trust and Public Trust
A Trust may be a private Trust or a public Trust. Where the purpose of the Trust is to benefit an individual or a
group of individuals, or his or their descendants, or any legal person, and who is capable of holding property, it is a
private Trust.46
When a Trust is created for the benefit of public at large or any section of the public, then such a Trust is a public
trust. Private Trust is governed by the Indian Trust Act, 1882. Many states have passed special Acts governing the
public trusts, e.g., The Maharashtra Public Trust Act, 1950.
A private Trust is Trust for the private convenience and support of individuals or families, while a public Trust is for
the benefit of public at large or some class of it answering a particular description, the object being to benefit an
uncertain and fluctuating body and the Trust being of a permanent and definite character.
16.14.8 Duties and Liabilities of Trustees
The Indian Trust Act, 1882 under sections 11 to 30 has prescribed the duties and liabilities of the trustees. These
duties and liabilities are absolute and not subject to any contrary provisions in the Trust deed. Similarly, the
obligations, duties and liabilities of the trustees of a public Trust are laid down under the relevant state enactments.
16.14.9 Extinction and Revocation of Trust
A Trust is extinguished:
(i) When its purpose is completely fulfilled, or

(ii) When its purpose becomes unlawful, or
(iii) When the fulfillment of its purpose becomes impossible by destruction of the Trust property or otherwise, or
(iv) When the Trust being revocable, is expressly revoked (Section 77 of the Indian Trust Act, 1882).
A Trust created by Will can be revoked at the desire of the testator, and a trust, otherwise created, can be revoked
in the following conditions:
Where all the beneficiaries are competent to contract by their consent, or
(1) Where the Trust is created by a non-testamentary instrument or by word of mouth, then in exercise of
power of revocation expressly reserved to the author of the Trust, or
(2) Where the Trust is for the payments of the debts of the author of the trust and not being communicated to
creditors at the pleasure of the author of the Trust.
16.14.10 Declaration of Trust
In order to create a Trust, the intention should be expressed in the deed in unequivocal language and with certainty.
If the author of the Trust proposes himself to hold the property on Trust he can execute a declaration of Trust
declaring that he would be holding the property as a trustee instead of as the beneficial owner for the benefit of
some individuals, in case of a private Trust or for the benefit of some charitable object.
The declaration of Trust pertaining to an immovable property must be registered irrespective of the value of the
property.47
However, a Trust created by “Will” requires neither any registration nor stamp duty.
16.14.12 Stamp Duty
A trust created, otherwise than by a “Will”, is covered under Article 64 Schedule I of the Indian Stamp Act, 1899,
Page 4 of 6
16.14 Trust
and accordingly, is chargeable with stamp duty under Article 64.
16.14.13 Specimen
Specimen No. I
TRUST DEED
(Private Trust for the Benefit of Children)
This Deed of Trust made and executed on this____________day on __________at ____________
BETWEEN
Mr. _____________
Age: ____________
Occupation:_____________
Residing at: _____________
PAN: _______
Hereinafter referred to as “The Settlor”
(which expression shall, unless repugnant to the context mean and include his heirs, executors, administrators and
assigns).
The Party of the One Part
AND
(i) Mr. _____________
Age: ____________
Residing at: _____________
PAN:
(ii) Mr. _____________
Age: ____________
Residing at: _____________
PAN:
(iii) Mr. _____________

Page 5 of 6
16.14 Trust
Age: ____________
Residing at: _____________
PAN: ________
Hereinafter jointly and collectively referred to as the Trustees
(which expression shall, unless repugnant to the context mean and include the said trustees, surviving trustees,
trustees appointed for the purpose of trust).
The Party of the Other Part
WHEREAS the settlor is having a sum of Rs. ____________ and he desires to settle the amount of Rs. ____ in
Trust for the benefit of his children namely _________ and ___________
AND WHEREAS the settlor lost his wife in an accident on __________ date and the settlor is suffering from serious
illness and therefore now the settlor is desirous to settle the said fund in Trust for the beneficiaries being the minor
sons of the settlor.
AND WHEREAS the trustees have at the request of the settlor (who are all close friends of the settlor) have agreed
to act as the trustees of the said Trust.
AND WHEREAS the settlor has already transferred a sum of Rs. __________/- to the trustees to be held by them
on Trust.
NOW THEREFORE THESE PRESENTS WITNESSES AS FOLLOWS:—
(a) In consideration of the premises and in order to give effect to the said desire of the settlor, the settlor
hereby transfers an amount of Rs. ____________unto the trustees and the trustees are now to hold the
said total amount of Rs. ______________/- upon the Trust and with the powers, provisions, claims and
declarations contained herein. The said amount so transferred to the trustees shall be referred to as the
Trust fund.
(b) That the trustees shall act collectively and shall take decisions by majority. The trustees shall invest the
Trust fund, and shall collect and receive the interest, dividend, rents and profits and other income accruing
on such investments from time to time.
(c) That the trustees shall use and utilise the Trust fund for the education of the settlor’s sons, their day-to-day
maintenance, medical expenses, other necessary and incidental expenses of the beneficiaries and after
meeting all these expenses of the beneficiaries, the trustees shall make investments as stated above and
in keeping with the provisions of law.
(d) That the trustees in order to manage the Trust funds shall open bank accounts and any two of them will be
entitled to operate such accounts. All income by way of interest, dividend, etc. shall be deposited in the
said account and all expenses should be made as far as possible by cheques, except where
circumstances require payment by cash.
(e) That the trustees shall hold and continue to hold the said property or fund for the benefits of the minor, i.e.,
master _________ and master_________ (the beneficiaries herein) till they attain majority. In the event
when the youngest child, i.e., Mr. ____________ attains majority, the children of the settlor thus having
acquired majority shall have a free choice and option to put an end to the Trust and in that event the
trustees shall cease to be trustees for them.
(f) That the Trust hereby created is irrevocable in nature for the settlor, and the beneficiaries may in their
option be entitled to put an end to the Trust after attaining majority.
Page 6 of 6
16.14 Trust
(g) That the trustees shall not use and enjoy the said property/Trust fund for their personal benefits nor shall
lend the same to each other.
(h) That the trustees shall cause proper accounts to be kept of the Trust funds and all additions thereto and
the income thereof respectively and the accumulations of such income and the application thereof from
time to time and shall on checking the same sign the account books every six months in each year. The
account books so signed by the trustees shall be examined, audited and certified by one or more properly
qualified auditors once in each year and the audited statements of accounts shall be likewise be signed by
all the trustees.
(i) That the trustees shall not keep in hand any cash which is not required for any immediate application of
Trust objects and shall invest the said amounts in any nationalised bank or banks.
(j) That in the event, the trustees cannot act or any trustee dies or goes abroad or retires or refuses to act or
become incapable of acting, the remaining trustees may appoint one or two trustees as the case may be
and if the settlor is alive, he may also appoint one or more trustees so that there can always be three
trustees in a position to act and carry out the purposes of the Trust.
(k) That in an event of putting an end to the Trust by the beneficiaries, the beneficiaries shall be entitled to the
Trust fund together with the interest, dividends, etc. and all other benefits and additions thereunder in equal
proportion.
IN WITNESS WHEREOF the settlor has executed these presents and the trustees have accepted the trusteeship
on terms and conditions contained herein on the day, month and year first above written.
Signature of Settlor. ____________
Settlor
Signature of Trustees
(1) Mr. _________________

(2) Mr. _________________
(3) Mr. _________________
Trustees
Witness
1. ____________
2. ____________
45 Madhav Prasad Nanuram Pandit v Monghilal Ramchand Maheshi, (1928) 30 Bom LR 186 : 108 Ind Cas 482, the
Madras HC has expressed the same view in R Venugopala Reddiar v Krishnaswamy Reddiar, AIR 1971 MAD 262 :
(1971) 84 Mad LW 263.
46 State of UP v Bansi Dhar, AIR 1974 SC 1084 : 1974 SCR (2) 679.
47 Section 17, Registration Act.
End of Document
16.15 Will and Codicils
Dr Medha Kolhatkar
PROCEDURE > WILL AND CODICILS
WILL AND CODICILS

WILL:—A will or testament means a declaration made by a person making the Will as to his wishes to take effect
upon or after his death. The Indian Succession Act, 1925 under section 2(h) defines Will as the “legal declaration of
the intention of a testator with respect to his property which he desires to be carried into effect after his death.”
A Will takes effect only on the death of the testator. It can be revoked by the testator during his lifetime. Through the
instrument of “Will”, a testator can dispose off or deal with any property movable or immovable pertaining to which
he has a right to dispose off.
Codicil:—The expression “codicil” is defined in section 2(b) of the Indian Succession Act, 1925. Codicil is “an
instrument made in relation to a will, and explaining, altering or adding to its disposition, and shall be deemed to
form part of the will.”
16.15.1 Forms of Will
The Indian Succession Act recognises two kinds of wills. (i) an unprivileged Will and (ii) privileged Will.
Under certain special circumstances and situations, a Will can be made orally or may be with or without attestation.
Sections 63 and 64 of the Indian Succession Act provide for such special situations, and a Will made under these
circumstances is termed as a “Privileged Will”.
A soldier, an airman or a mariner engaged on an expedition or in actual warfare can make a Will (i) in writing or
orally; (ii) if the Will is in the testator’s hand writing, it need not be signed by him or attested; (iii) if it is written, wholly
or partly, by another it must be signed by the testator but need not be attested by any witnesses. A Will made by
any other person is an “Unprivileged Will”.
16.15.2 Forms of Unprivileged Will
An unprivileged Will can be of different forms. Stated below are the various forms of a Will:
(i) Oral Will

(ii) Holograph Will
(iii) Mutual Will
(iv) Joint Will
(v) Contingent Will
16.15.2.1 Oral Will

Page 2 of 6
A Will can be made orally only among the Muslims. As per section 64 of the Indian Succession Act, 1925, a
privileged Will can be oral.
16.15.2.2 Holograph Will
When a Will is written in the hand writing of the testator, it is called as holograph Will. The handwritten Will must be
duly signed and attested.
16.15.2.3 Mutual Will
This type of Will is generally made by husband and wife. In this Will one bequeaths his or her property to the other,
and vice versa.
16.15.2.4 Joint Will
A joint Will is a testamentary disposition by more than one testator of their properties operating on the death of each
testator on his properties, and is, in effect more than one Will combined into one.48
16.15.2.5 Contingent Will
A Will that is made to be effective on the happening of any event or condition is called a contingent Will.
Property that can be disposed of by Will: Any property movable or immovable over which the testator can exercise
disposing power, can be disposed of by Will. The testator is said to have disposing power where he is the absolute
owner of the property and he can transfer the property inter vivos during his life time.
16.15.3 Validity of Will
A Will or testament, will be construed as valid if the testator had the capacity to make the Will (sound state of mind,
no coercion, fraud etc.) and all other formalities as required by law are complied with, such as attestation and
execution.
The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by
reading the Will as a whole, with all the provisions and ignoring none of them as redundant or contradictory.
16.15.4 Revocation of a Will
A Will can be revoked during the life of the testator, though the Will is stated to be irrevocable. A Will must be
revoked in the manner stated in section 70 of Indian Succession Act. A Will may be revoked by conduct as well. If
there are two Wills made, the latter one will not revoke the previous one unless the latter Will clearly provide to that
effect or the latter Will is inconsistent with the provisions. They will be treated as one Will.49
Section 70 of the Succession Act, 1925 provides that no unprivileged Will or codicil, nor any part thereof shall be
revoked otherwise than by marriage or by another Will or codicil or by some writing, giving instruction to revoke the
same and executed in the same manner in which an unprivileged Will is required to be executed or by burning,
tearing or otherwise destroying the same by the testator or by some person in his presence or by his direction with
the intention of revoking the same50
For treating a Will as having been destroyed under section 70 of the Act, destruction is not sufficient. It must be with
the intention to revoke the Will. Mere cancellation is not the mode of revocation of a Will.51
16.15.5 Drafting of a Will
The relevant provisions of the Indian Succession Act, 1925 (Sections 74 to 111) should be thoroughly studied
before drafting a “Will”. There is no standard form prescribed by law. The language of the Will should be clear and
unambiguous.
Full and complete instructions should be obtained from the testator at the time of drafting the “Will”. The properties
which the testator intends to bequeath should be described in detail with complete clarity.
Page 3 of 6
A Will is drafted in first person as a deed poll document.
The following points should be enumerated in the Will—
(1) The details of the testator (name, age, occupation, address etc.).
(2) Mention that all previous testaments, if any, stand revoked. Such a declaration is very important as it
makes the present “Will” valid and binding.
(3) Details of assets and beneficiaries. If they are in relation to the testator, the relationship, e.g., son,
daughter, wife, etc. should be stated. If the property is bequeathed to a third party then reasons for such
bequeath should be stated in order to avoid any discrepancy.
(4) Details of the executors of the Will (the beneficiary under a Will can be appointed as executor).
(5) The sound state of mind and health of the testator should be stated.
(6) Testimonium comes in the end. The date of the Will can be mentioned either at the beginning or in the
testimonium.
(7) Last but not the least is the signature and attestation. The testator must sign the Will and after his signature
the attesting witnesses should sign. The details of the witnesses also should be stated.
(8) In case of senior citizens it is better to annex a medical certificate of fitness to give authenticity to the Will.
16.15.6 Stamp and Registration
No stamp duty is required to be paid on a Will. Therefore, a Will can be made on any plain paper.
As per the provisions of the Indian Registration Act, a “Will” is not required to be compulsorily registered. The
registration of a Will is optional as per section 18 of the Registration Act.
16.15.7 Specimen
Specimen No. I
I, (state the name, age, occupation) an Indian inhabitant, residing at _________, do hereby revoke all my previous
Wills and/or Testamentary Writings that I may have executed and
I hereby declare this to be my last Will and Testament:-
(1) I appoint (i) Name__________ R/at __________ (ii) Name_____ R/at____ to be the executors of this Will.
(Hereinafter referred to as “the executors”).
(2) The following are my only legal heirs and representatives:
(i) Mrs. ‘W’ is my wife (state the complete details of wife, i.e., name, age, R/at)
(ii) Mr. ‘S’ is my son unmarried (state the complete details of son, i.e., name, age, R/at)
(ii) Mrs. ‘D’ is my daughter (married) (state the complete details of daughter, i.e., name, age, R/at)
(3) The following are the assets and properties owned by me:
(a) Villa by name ______ situated at _______ (here give complete address of the property)
(b) Land at _________ admeasuring ______ sq. mts/acres at ________ (state the details of the property)
(c) Flat at ______ in _______ Housing Society (State the details of the flat)
(d) Flat at _______ in _________ Housing Society
(e) Bank accounts, shares, debentures, investments in UTI, National Saving Scheme, Public Provident
Fund Scheme and jewellery and fixed deposits etc. and
(f) Any other residuary estate standing in my name or belonging to me or inherited or bequeathed to me
or acquired by me at any time hereinafter or otherwise.
Page 4 of 6
(4) I hereby give, devise and bequeath the property mentioned 3(a) and 3(b), 3(e) and 3(f) to my wife (state
the name – Mrs. ‘W’) solely, absolutely and forever. I further declare that my wife shall have absolute right
to deal with and dispose of the said bequeathed properties to her in the manner she deems fit and proper
and at her own discretion. If my wife predeceases me then the properties shall go to my son ‘S’ and
daughter ‘D’ in equal proportion.
(5) I hereby give, devise and bequeath the estate mentioned in clause 3(c) to my daughter ‘D’ solely and
absolutely.
(6) I hereby give, devise and bequeath the estate mentioned in clause 3(d) to my son Mr. ‘S’ absolutely and
forever.
(7) I am in sound state of mind and good health and I have made this Will without any duress and out of my
free will, knowing fully well the consequences of this testament.
Signature of the Testator
Witnesses
1. ________
2. ________
(Signed in the presence of each other and testator)
Specimen No. II
Will
I Mrs. _______ Age _______Occupation ________ Residing at________ on this _______ day of ________(month)
20_____, do hereby make this as my last Will and Testament.
I have not made any Will or any testamentary document earlier; however, if any made, I hereby revoke all my
previous Wills and codicils if any and hereby state and declare that this is my last Will and testament.
(1) My family consists of one daughter by name________ age ________ Residing at _________ who is
married and is living happily at her matrimonial home at _________. One son by name ______ age
_______ Residing at ______ with whom I am presently staying.. My husband by name______ died on
______ date in a road accident.
(2) I own and possess the following immovable properties—
(i) Bungalow by name ________ situated at S. No. ________, in ________ Society. ______________
(here give complete address of the property.)
(ii) Flat no. _______on _________Floor, admeasuring _________ sq. mtrs in ________wing, in
_______building constructed on land bearing S. No. ________ at _________ ___________.
(3) I hereby bequeath my bungalow by name ______ as described above to my son _______ absolutely and
forever.
(4) I hereby bequeath my flat admeasuring _______ sq. mtrs in _______housing society to my daughter by
name _____ absolutely and forever.
(5) All my movable property is as follows—
(a) Fixed deposit receipts—
(i) Rs. _________in _________ bank
(ii) Rs. _________in _________ bank
(iii) Rs. _________in _________ bank
(iv) Rs. _________in _________ bank
(b) Locker No. ______ in ________bank.
Page 5 of 6
(6) I bequeath all the gold ornaments in my locker No. _______in_____ bank mentioned in (5)(b) to my
daughter by name ________.
(7) I hereby bequeath my fixed deposit receipts mentioned in (5)(a) _______ and also all my properties which I
may be found to be possessed of or entitled to but not stated hereinabove to my son
__________absolutely and forever.
(8) I am in a sound state of mind and health and I have made this Will without any duress and out of my free
will, knowing fully well the consequences of this testament.
(9) I hereby put my signature hereunder in the presence of attesting witnesses on this _______ day of
________20______.
Sd. of Testator
Witnesses
1. ________
2. ________
Specimen No. III
(CODICIL)
I, Mrs. ________ Age _________ Occupation _________ Residing at __________make this codicil to my last Will
and testament dated_______.
(1) I have made my last Will and testament on _______ date and I have not revoked the said Will and
testament.
(2) In my last Will dated ________ inadvertently I have not mentioned about my bank locker No. __________
in ________Bank at ________(place and address). The said locker has gold jewellery worth
________tolas (two necklaces, four bangles, 1 chain and 2 hand rings).
(3) Therefore, now through this codicil I hereby bequeath the aforementioned gold jewellery of _______ tolas
to my daughter-in-law by name _______ forever.
(4) Subject to above addition by this codicil, I hereby confirm my last Will and testament dated _______.
(5) This codicil is made by me on this _______ day of _____20_____. I have made this codicil out of my free
will and I am in a sound state of mind and health.
(6) I hereby sign this codicil in the presence of witnesses.
Signed by the Testator
Signed by the witnesses
1. ________
2. ________
48 K Govindan v T Lakshmi Amma, AIR 1959 SC 71 : 1959 SCR Supl. (1) 1.

49 Gendlal v Ratanchand, AIR 1960 MP 255.
50 Jaswant Kaur v Amrit Kaur, AIR 1977 SC 74.
Page 6 of 6
51 CG David Tharakan v Lily Jacob, AIR 1993 Ker 9 : I (1994) DMC 154.
End of Document

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Date and Time: 19 September 2021 13:03:00 IST

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1. CHAPTER I PRINCIPLES OF LEGAL DRAFTING

CHAPTER I PRINCIPLES OF LEGAL DRAFTING

CHAPTER I PRINCIPLES OF LEGAL DRAFTING

CHAPTER I PRINCIPLES OF LEGAL DRAFTING

1.2 Significance of Drafting

CHAPTER I PRINCIPLES OF LEGAL DRAFTING

1.3 Principles of Legal Drafting

(a) Prefer the familiar word to the far fetched

Charles Davidson has culled out some rules of drafting as follows:—

(a) Before a draft is begun the whole design should be conceived.

(b) Nothing should be omitted or admitted at random.

CHAPTER I PRINCIPLES OF LEGAL DRAFTING

As Professor Reed Dickerson puts it in his book “Legislative Drafting”:

2.2 Forms of Notice

2.2.1 Statutory Notice

2.2.2 Mandatory Notice

2.2.3 Directory Notice

Following are the illustrations of Directory Notices:

2.2.4 Public Notice

Following are the illustrations of Public Notices:

• A notice of sale or purchase of immovable property.

2.2.5 Personal/Private Notice

Black’s Law Dictionary defines “personal notice” as under—

2.2.6 Actual Notice

2.2.7 Constructive Notice

Law Lexicon defines Constructive Notice as under:

2.3 Modes of Service of a Notice

2.4 Drafting of Legal Notices

2.5 Notice Reply

(Breach of Leave and Licence Agreement)

ABC Co. Pvt. Ltd.

(1) That my client is the owner of the premises situated at ___________.

(Dissolve the Marriage by Mutual Consent)

(Encl-Draft of petition for divorce by Mutual Consent)

(Notice to Terminate Contract)

(Notice for compensation for permanent disablement and business loss)

(Notice by Landlord to Tenant for Eviction)

(Notice for Dishonour of Cheque)

(Notice under Section 138 of Negotiable Instruments Act)

(Notice for Compensation for Defect in Goods)

(Notice for Insurance Claim)

(Notice for Compensation for Deficiency in Services)

(By R.P. A.D)

____________ Transport Company Ltd.

(Notice to Claim Maintenance)

(Notice for Restitution of Conjugal Rights)

(Notice for Compensation for Defamation)

(Notice to Refrain from Creating Third Party Interest in Property)

(Notice for Expulsion of a Partner)

Partner of ________________ Firm

Under the instructions of my clients, (1) (Name______________) residing at ___________________, (2)

(Notice for Specific Performance of Contract))

_____________ Research Institute

Through its Chairman

(Notice to Execute Cancellation of Sale Deed and

Power of Attorney and for Compensation)

(Notice to Refrain from Acting as Director of the Company)

(Notice for Trespass and Damage to Property)

(Notice for Recovery of Money and Appointment of Arbitrator)

M/S ABC Pvt. Ltd.

(Notice under section 80 of CPC)

______________ State Government

Under the instructions of my clients, (1) (Name) residing at _____, (2)

Age Occupation ______

Age _ Occupation R/at __