E-Notes - Drafting, Pleadings & Conveyance - Unit-1

Chanderprabhu Jain College of Higher Studies
&
School of Law
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E-Notes
Class : B.A.LL.B-IX (A+B+C); BB.A.LL.B-IX (A+B)
Paper Code : LLB-503
Subject : Drafting, Pleading and Conveyancing
Faculty Name : Ms. Aastha Sharma
Unit-1
Fundamental Rules of Pleadings
DRAFTING OF DOCUMENTS IMPORTANT INITIAL ASPECTS:
 A document is intended to be evidence and has to stand the test of law.

Hence, knowledge of law is the basic essential requirement. Since the laws
are many and multiple, the concept of super specialization within some
branches involves specialization in the specific branch of law or practice.
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 The drafting professional should conceive the sketch or skin of the draft so
that no important aspects or omitted or irrelevant aspects get admitted
randomly.
 The paragraphs in the draft should come in strictly logical order highlighting
the purpose and scheme of the document.
 Since a document is intended to operate within a legal framework, use of

legal language is indispensable but it should be to utmost possible extent
precise and accurate. The draft must be readily intelligible to layman.
 The drafting professional should appreciate and use precise words to convey
what he means to say, what he does not mean to say and what he need not
say.
 Document should be self-explanatory and unambiguous.
 Prefer separate documents where subject matters are distinct or applicable

rules of law are different.
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 Before releasing the draft, it be reconsidered/verified to satisfy that before it

is too late, the draft means what it intends and terms are clear and definite.
Introduction
Pleading is the beginning stage of a lawsuit in which parties formally submit their
claims and defenses. The plaintiff submits a complaint stating the cause of action --
the issue or issues in controversy. The defendant submits an answer stating his or
her defenses and denials. The defendant may also submit a counterclaim stating a
cause of action against the plaintiff. Pleadings serve an important function of
providing notice to the defendant that a lawsuit has been instituted concerning a
specific controversy or controversies. It also provides notice to the plaintiff of the
defendant's intentions in regards to the suit.
Meaning of Pleadings
The act of a person who pleads.
Ø The advocating of a cause in a court of law.
Ø The art or science of setting forth or drawing pleas in legal causes.
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Ø A formal statement, usually written, setting forth the cause of action or defense
of a case.
Ø Pleadings, the successive statements delivered alternately by plaintiff and

defendant until the issue is joined.
Types of Pleadings
 Plaint: Plaint is the statement of claim in writing and filed by the plaintiff,
in which he sets out his cause of action with all necessary particulars. Plaint
is the first process in inferior court in the nature of an original writ, whereby
a party seeks remedy from court for the redressed of his grievances.
 Written Statement: Written statement is the statement of defense in writing

and filed by the defendant, in which he deals with every material fact alleged
by the plaintiff in the plaint. Defendant can state any new facts, which he
considers to be in his favor, and can raise legal objections to the merits of
the case, prescribed by various laws e.g. plea of limitation, plea of estoppels,
plea of res-judicata etc.
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 Rejoinder: Rejoinder means answer of the plaintiff, which he gives keeping

in view new facts alleged by the defendant in written statement.
Essentials of a Plaint
Order 7, Rule 1 Order 7 of CPC lays down that a plaint must contain the following
particulars.
Pleading refers to plaint and written statement. In plaint, plaintiff should allege
facts about his cause of action. In fact, plaint consists of some contents, and it is
mandatory that such contents should be present in plaint;
 Plaint should contain name of that court in which suit is brought.
 Plaint should contain name, description and residence of plaintiff.
 Plaint should contain name, description and residence of defendant.
 When plaintiff or defendant is minor or person of unsound mind, plaint

should contain a statement to that effect.
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 Plaint should contain those facts, which have constituted cause of action. In
addition to this, it should also be described in plaint when cause of action
has arisen.
 Plaint should contain those facts, which show the court has jurisdiction.
 Plaint should contain that relief, which plaintiff claims.
 When plaintiff has allowed set off or has relinquished a portion of his claim,
plaint should contain that amount, which has been so allowed or so
relinquished.
 Plaint should contain statement of value of subject-matter of suit not only

for purpose of jurisdiction, but also for purpose of court-fees.
 Plaint should contain plaintiff’s verification on oath.
 If the suit is for recovery of money, the plaint should contain the exact
amount claimed. If the suit is for manse profit, or for an amount which will
be due on taking accounts or a debt the value whereof cannot be estimated
with reasonable diligence, the approximate amount may be stated instead of
the exact amount.
 If the suit is for immovable property, the plaint should contain a proper
description sufficient to identify such property along with boundaries,
survey numbers, etc., wherever possible
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 Where the plaintiff files a suit of a representative character, the plaint must
show not only that he has an actual existing interest in the subject matter of
the suit, but also that he has taken the necessary steps to enable him to file
such a suit; If the suit if filed after expiry of the limitation period, the plaint
must state the ground on which exemption from the law of limitation is
claimed;
 Where the plaintiff seeks relief in respect of several distinct claims or

causes of action founded on separate and distinct grounds, they should be
stated separately and distinctly.
 The plaint must state specifically the relief claimed by the plaintiff, either
simply or in the alternative.5 Order 6, Rule 2 of Order 6 of CPC provides
following as to the ingredients of pleadings. v Pleading should state facts
and not law.
 The facts should be material facts.
 Pleadings should not state the evidence.
 The facts should be stated in a concise for.
 Dates, sums and numbers shall be expressed in figures.
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Who can offer an affidavit?
An individual can offer an affidavit, as long as they have the mental capacity to
understand the seriousness of the oath. The contents of an affidavit reflect the
personal knowledge of the individual making the statement. This means that an
individual making an affidavit cannot be penalized for failing to include
information of which they were not aware.
Personal knowledge can in some circumstances, include personal opinion rather

than fact.
In certain cases, an affidavit can be offered on behalf of somebody else. This may
be the case in relation to the guardianship of an individual who is severely
mentally ill.
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When should an affidavit be used?
You are required to use an affidavit in the following circumstances:
• Divorce proceedings, e.g. that both spouses have agreed to dissolve the
marriage.
• Property disputes, e.g. how somebody came to inherit or purchase certain

property.
• Debt cases, e.g. the circumstances leading to the debt and the fact that the
debt is still outstanding.
An affidavit is a required piece of documentation in any dispute before a court.

You will be prompted on their use when the rules of the court require them.
Completing an Affidavit
When completing an affidavit, you must ensure that you set out your account of the
facts/events exactly as they happened. Take care to ensure that you have read the
affidavit to ensure that it is correct.
As the document is accompanied by an oath that is legally binding, it is imperative

to ensure that the facts are clearly and accurately represented. If any errors are
found in the affidavit, they should be corrected before the affidavit is signed. This
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is a condition, regardless of whether it is convenient for the officials taking down

the information and witnessing the document.
If an individual knowingly makes a false affidavit by making a statement, which is

false, then they can be found to have committed contempt of court.
Execution of an Affidavit
If an individual is completing an affidavit, then in most cases, the document must

be signed in the presence of a solicitor or other person commissioned to receive
oaths (e.g. a notary public or another judicial officer who has administered the
oath). The purpose of this is to check that your signature is valid.
If you sign your affidavit in front of a solicitor, they will usually be entitled to
charge a fee for swearing the affidavit. If this process is done at court, there will be
no charge.
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Section 5: Condonation of delay under The Limitation Act,
1963Background of the Limitation Act, 1963
In India, the legislation, which governs and regulates the period within which a suit
is supposed to be instituted, is known as the Limitation Act, 1963. This legislation
enumerates relevant provisions regarding the delay in filing application, suit and
appeal under competent jurisdiction and how that delay can be condoned. This
legislation extinguishes the remedy to the party and not the right to file delayed
documents in court, which substantially prevents the legal right from getting
defeated.
The limitation Act works on the principle of two legal maxims, which can be stated
as follows:
1. Interest republicae ut sit finis litium which means that for the public
interest, litigation must come to an end.
2. Vigilantibus non dormentibus jura subveninet which means that court

protect those who are vigilant about their own rights.
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Objective and Applicability of the Limitation Act, 1963
The main objective that the Limitation Act, 1963 serves is to primarily provide a
bar upon the time limit within which the aggrieved party can institute a suit,
application or appeal in the court. If legislation upon limitation is not enacted, then
it would lead to an unconditional and never-ending litigation procedure, as no party
would be concerned to refer a timely litigation and the party will file suit for a
cause of action that has been executed a long time back and which may have no
relevance in the present time.
In Balakrishnan v. M.A. Krishnamurthy (1998)7 SCC 123, the apex court held
that the limitation Act, 1963 is primarily based on public policy to fix a time
during which the aggrieved party can ask for a legal remedy for the general
welfare.
Meaning of limitation
The term limitation as the restriction or the rule or circumstances which are
limited. It means that the circumstance under which legal remedy is obtained is
barred by time as per the law. The law of limitation specifically prescribes a
particular time limit during which an aggrieved party shall approach the court to
receive the legal remedy.
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As per the law of limitation, no court shall have the jurisdiction to try a suit, or
entertain an application or appeal, if it is filed after the prescribed period.
Meaning of Condonation of Delay
The condonation of delay means the extension of prescribed time in certain cases
subject to sufficient cause. The concept of condoning a delay is primarily preferred
to the applications and appeal and does not cover the suits. The rationale behind
the doctrine not including the suit is that this doctrine is regarded as an exception
to the general rule that is Bar of limitation under the legislation and hence, it does
not include suit.
The term condonation means an implied pardon of an offense by treating the

offender as if it had not been committed. Here, the referred offense is the offense
of ignoring the law of period that has been prescribed by the Limitation Act, 1963.
Condonation of Delay under the Indian Limitation Act, 1963- Primary Focus
on Section 5
Section 5[6] of the Limitation Act, 1963 dealt with the extension of the prescribed
period in a certain case. It states that if the appellant or the applicant satisfies the
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court that he had a sufficient cause for not preferring the appeal or making the
application within such period, then such an application or appeal shall be admitted
after the prescribed period.
In IOCL v. Subrata Borah Chowlek (2010) 12 SCALE 209: 2010 (262) ELT 3 it
was held that though section 5 envisages the explanation of delay to the
satisfaction of the court, and makes no distinction between the state and the
citizens, nonetheless adoption of a strict standard of proof in case of Government,
which is dependent on the actions of its official, who often do not have any
personal interest in its transactions may lead to grave miscarriage of justice and
therefore, certain amount of latitude is permissible in such cases.
General Principles to Be Followed
1. In Collector Land Acquisition v. Mst. Katiji AIR 1987 SC 1353The

Supreme Court also gave certain principle, which binds the Courts to follow
while adjudicating and interpreting the issue regarding condonation of delay.
These are ordinarily; a litigant does not have the right to receive benefit from
filing a late appeal.
2. Â If the delay is condoned, then the case must be decided after both parties
have been provided with an opportunity of being heard before the court. But
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if condonation is refused, then there is a chance that a meritorious matter

would be thrown out on the basis of technicalities.
3. It is not required to take a pedantic approach while dealing with an

explanation of the delay. The doctrine has to be applied in a rational and
pragmatic manner.
4. Between substantial justice and technical considerations, the substantial

justice should be preferred before since the other side cannot contend to
have a superior right in injustice being done under a bona fide mistake.
The court should not presume that the delay is occasioned deliberately or on
account of mala fide or the applicant is guilty of culpable negligence since no
litigant takes recourse to delay the filing of his application.
Following are the instances when the delay can be condoned
1. Subsequent changes in the law
2. Illness of the party
3. Party being a Pardanishin Lady
4. Imprisonment of a party
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5. The party belongs to a minority group who has insufficient funds
6. Poverty or paupers
7. Party is a government servant
8. The delay is caused due to pendency of writ petition
9. The party is illiterate
Section 5 applies to all applications except an application under 21 of code civil

procedure. Order 21 of the code deals with the law relating to the execution of
decrees and orders. To obtain an extension of time by invoking the provisions
of section 5 of the Act, the party seeking extension must satisfy the court that he
had sufficient cause for not filing the suit, appeal, revision or objections within
the prescribed period.
In Ram Lal v. Rewa Coalfields Ltd AIR 1962 SC 361, SC held that there are two
important considerations, which have to be borne in mind while considering the
condonation of delay:
1. The expiration of the period of limitation gives rise to the legal rights in
favor of the decree-holder to treat the decree passed in their favor as binding
between the parties. The legal right, which is accrued, to the decree-holder
by lapse of time should not be lightly disturbed.
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2. If sufficient cause for the execution of delay is shown, then the discretion is
given to the court to condone the delay and admit the appeal. Even if
sufficient cause has been shown, the party is not entitled to the condonation
of delay in question as a matter of right. Proof of sufficient cause is a
condition precedent in the exercise of the discretionary jurisdiction.
Therefore, there is no exhaustive list of grounds on which the delay can be

condoned. It has to be decided on the facts and circumstances of each case.
Object of limitation act
The main objective that the Limitation Act, 1963 serves is to primarily provide a
bar upon the time limit within which the aggrieved party can institute a suit,
application or appeal in the court.
Condonation of delay is the remedy provided to the parties if they fail to approach
the court during the limit that the law has provided to them. This remedy is
exercised at the discretion of the court.
Hence, condonation of delay is a remedy where a meritorious case be heard after

providing a sufficient cause to the court when the prescribed period has ended.
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Ex parte decree
An ‘Ex parte decree’ is a decree passed against a defendant in absentia. Despite
service of summons, where on the date of hearing only plaintiff does and a
defendant does not appear the Court may hear the suit ex parte and pass a decree
against the defendant. The legal validity, enforceability and operation of such
decree is similar to any bi-parte decree.
The article critically analyses various provisions in the Code of Civil Procedure,
1908 pertaining to ex parte decree. Part I of the article enumerates the nature of an
ex parte decree and cause of an ex parte decree. Part II titled Relief Available
against an ex parte deal with various remedies available to the person against
whom an ex parte decree is passed and the abuse of such remedies. Part III titled
Sufficient Cause for Non-appearance analyses various instances and circumstances
where non-appearance of the party is excusable. Part IV titled Ex Parte Decree
obtained by Fraud deals extensively with one of the remedy available against an ex
parte decree.
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Limitation on Filing the Application for Setting Aside an Ex Parte Decree
Limitation period for filing an application for setting aside an ex parte decree is 30
days from the date of knowledge of the decree.
In Gauhati University v. Niharalal Bhattacharjee 1995 SCC (6) 731, JT 1995 (8)
206 summon was served to the petitioner on May 28th, 1990 for appearance on the
next day. As per Rule 6 of Order V as there was lack of sufficient time for
appearance the suit was adjourned to July 19th, 1990 but the date was not
communicated to the other party. The SC held that as the summons was not duly
served the limitation began to run only when the petitioner had the knowledge of
the order. Hence, as the applicant filed within the 30-day period the decree was set
aside.
Conclusion
The Right to be heard in a suit is one of the tenets of principles of natural justice
and our civil procedure duly provides for such right to the party. Despite the
sufficient opportunity provided if the party does not avail this to explain himself, in
court hears the suit ex parte. In order for the justice system to be efficient and to
not prejudice the rights of the plaintiff this is justified.
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However, owing to unavoidable reasons the party might not appear for the hearing.
In such cases the Code is sensitive those genuine cases. On careful reading of
Order IX Rule 13 it is obvious that the applicant for setting aside the ex parte
decree should satisfy the Court that there was sufficient cause for its non-
appearance on the date of hearing. As noted earlier an application under this rule
cannot be entertained on moral or humanitarian grounds however; the Courts
cannot be deaf toward the realities of life.
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FORMAT OF WRIT PETITION
IN THE HIGH COURT OF DELHI AT New Delhi
(WRIT JURISDICTION)
WRIT PETITION (CIVIL) NO. OF2016
IN THE MATTER OF:
S/o
R/o _ PETITIONER
VERSUS
Muncipal Corporation of Delhi,
Through Its Commissioner … RESPONDENT
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WRIT PETITION UNDER ARTICLE 226 OF CONSTITUTION OF INDIA

FOR ISSUANCE OF PREROGATIVE WRIT OF MANDAMUS OR ANY
OTHER APPROPRIATE WRIT
Most Respectfully showeth:
1. That the petitioner is a citizen of India residing at_ . The respondent is

Municipal Corporation of Delhi having their office at Town Hall, Chandni
Chowk, Delhi
BRIEF FACTS: -
2. That the petitioner is aggrieved by the illegal appointments of daily wage

workers by the M.C.D. office in defiance of Notification No. MCD/LF/01-103
dated 1.2.2014, which requires the M.C.D. to appoint only those person as Daily
wage worker who are below the age of 30 years as on 01.10.2014. The said
Notification was issued after it was duly approved.
3. That the petitioner is of 27 years of age and was working as a daily wage
worker, when on 1.12.2014 his services were terminated without notice/prior
intimation. The Petitioner during his service worked to the satisfaction of his
superiors. The respondent has appointed Sh. Ompal, Sh. Ram and Smt Maya in
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defiance of the said notification M.C.D./LF/01-/03 at 01.02.2014 as all the three

person namely Om Pal, Sh. Ram and Smt. Maya are more than 30 years of age as
on 01.10.2014. The about named persons were appointed in utter disregard of
Notification. The respondent, however, removed the petitioner from service
although petitioner met the requirements.
That the Petitioner made representation to the respondent vide letter dated
1.12.2014, 2.1.2015 and also met the commissioner personally and apprised them
of his grievance, however nothing materialized.
4. That in spite of oral and written representations the respondent has not cared to
act and are maintaining stoic silence on the whole issue.
5. That the petitioner has thus approached the Hon’ble court on amongst others the
following grounds
GROUNDS:
(a) Because the action of the respondent is contrary to law and good conscience.
(b) Because the action of the respondent is arbitrary, unreasonable, irrational

and unconstitutional.
(c) Because respondent have no right to play with the career of the petitioner.
(d) Because the petitioner was removed from job inspite of the fact that he was
below age and fulfilled all requirements.
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(e) Because respondent appointed. Sh. Ompal, Sh. Ram and Smt Maya despite
their being overage and not meeting requirements of Notification No.
MCD/LF/01-103 dated 1.2.2014.
(f) Because the action of the respondent is bad in law
(g) That the Petitioner craves, leave of this Honorable Court to add, amend,
alter the grounds raised in this petition.
6. That the cause of action in present case arose on 1.2.2014 when the respondent
brought out the Notification No. MCD/LF/01-103 dated 1.2.2014., it further arises
when on 1.12.2014 the petitioner was removed from job inspite of the fact that he
was below age and fulfilled all requirements, it further arose when respondent
appointed. Sh. Ompal, Sh. Ram and Smt Maya despite their being overage and not
meeting requirements of Notification No. MCD/LF/01-103 dated 1.2.2014; it
further arose when representations were made to respondent orally and in writing
on 1.12.2014, and 2.1.2015. The cause of action further arose when respondent did
not act in spite of the fact having brought to their notice. The cause of action is
continuing one.
7. That the Petitioner has no other alternative efficacious remedy except to

approach this Hon'ble Court by way of this writ petition
8. That the petitioner has not filed any other similar writ petition either before this
Hon'ble Court or before the Supreme Court of India.
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9. That there has been no undue delay in filing of this petition.
10. That the honorable court has territorial jurisdiction to entertain the writ
petition.
11. That the requisite court fee of Rs. 50/- has been affixed on this petition.
PRAYER:
The petitioner most humbly prays that this Hon'ble Court may be pleased to: -
(a) issue appropriate writ in the nature of mandamus or any other appropriate
writ directing the Respondents to cancel the illegal appointment made in
disregard of Notification No. MCD/LF/01-103 dated 1.2.2003: and
(b) issue necessary directions to appointment of petitioner and
(c) issue any other further order/orders or direction/directions as this Hon’ble

Court may deem fit and appropriate to know the facts and the circumstances
of this case.
FOR THIS ACT OF KINDNESS, THE PETITIONER ABOVENAMED SHALL

EVER PRAY.
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Delhi PETITIONER
THROUGH
Date ADVOCATE
[NOTE: The petition will be supported by an affidavit
Sd/-
Ms. Aastha Sharma
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Chanderprabhu Jain College of Higher Studies

Class : B.A.LL.B-IX (A+B+C); BB.A.LL.B-IX (A+B)

Paper Code : LLB-503

Subject : Drafting, Pleading and Conveyancing

Faculty Name : Ms. Aastha Sharma

Fundamental Rules of Pleadings

DRAFTING OF DOCUMENTS IMPORTANT INITIAL ASPECTS:

 A document is intended to be evidence and has to stand the test of law.

 Since a document is intended to operate within a legal framework, use of

 Document should be self-explanatory and unambiguous.

 Prefer separate documents where subject matters are distinct or applicable

 Before releasing the draft, it be reconsidered/verified to satisfy that before it

The act of a person who pleads.

Ø The advocating of a cause in a court of law.

Ø The art or science of setting forth or drawing pleas in legal causes.

Ø Pleadings, the successive statements delivered alternately by plaintiff and

 Written Statement: Written statement is the statement of defense in writing

 Rejoinder: Rejoinder means answer of the plaintiff, which he gives keeping

 Plaint should contain name of that court in which suit is brought.

 Plaint should contain name, description and residence of plaintiff.

 Plaint should contain name, description and residence of defendant.

 When plaintiff or defendant is minor or person of unsound mind, plaint

 Plaint should contain that relief, which plaintiff claims.

 Plaint should contain statement of value of subject-matter of suit not only

 Plaint should contain plaintiff’s verification on oath.

 Where the plaintiff seeks relief in respect of several distinct claims or

 The facts should be material facts.

 Pleadings should not state the evidence.

 The facts should be stated in a concise for.

 Dates, sums and numbers shall be expressed in figures.

Who can offer an affidavit?

Personal knowledge can in some circumstances, include personal opinion rather

When should an affidavit be used?

You are required to use an affidavit in the following circumstances:

• Property disputes, e.g. how somebody came to inherit or purchase certain

An affidavit is a required piece of documentation in any dispute before a court.

As the document is accompanied by an oath that is legally binding, it is imperative

is a condition, regardless of whether it is convenient for the officials taking down

If an individual knowingly makes a false affidavit by making a statement, which is

If an individual is completing an affidavit, then in most cases, the document must

Section 5: Condonation of delay under The Limitation Act,

1963Background of the Limitation Act, 1963

2. Vigilantibus non dormentibus jura subveninet which means that court

Objective and Applicability of the Limitation Act, 1963

Meaning of Condonation of Delay

The term condonation means an implied pardon of an offense by treating the

General Principles to Be Followed

1. In Collector Land Acquisition v. Mst. Katiji AIR 1987 SC 1353The

if condonation is refused, then there is a chance that a meritorious matter

3. It is not required to take a pedantic approach while dealing with an

4. Between substantial justice and technical considerations, the substantial

Following are the instances when the delay can be condoned

1. Subsequent changes in the law

2. Illness of the party

3. Party being a Pardanishin Lady

5. The party belongs to a minority group who has insufficient funds

7. Party is a government servant

8. The delay is caused due to pendency of writ petition

9. The party is illiterate

Section 5 applies to all applications except an application under 21 of code civil

Therefore, there is no exhaustive list of grounds on which the delay can be

Object of limitation act

Hence, condonation of delay is a remedy where a meritorious case be heard after