Pleadings – Drafting, Pleadings and Appearances Important Questions

Question 1.
Explain the following; Objects of Pleadings
OR
Pleadings is just a written complaint for preventing deviations from the course which litigation must take as held in Ganesh Trading vs. Motiram AIR 1970 SC 480.
Answer:
“Pleadings” are statement of facts in writing drawn up and filed in Court by each party to a case. As per Order VI, R. 1 of Civil Procedure Code, 1908 pleading means plaint or a written statement.

Objective of a pleadings:

  • Aims at ascertaining precisely the points for contention of the parties to a suit.
  • Gives a fair notice/intimation of the case to the opposing party, enabling him to produce evidence to the issue disclosed.
  • Enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.

Pleadings are required to enable the Court to decide true rights of the parties in trial. In the case of Ganesh Trading Co. v. Moji Ram (1978) 2 SCR 614, Supreme Court held:
“Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleading in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.”

Question 2.
Deficiency in Pleadings would not affect the Plaintiff’s Case. Discuss with reference to relevant case laws.
Answer:
Following are considered as Material facts:

  • Every fact on which the cause of action or the defence is founded is material fact.
  • All facts which will be required to be proved at the trial in order to establish the existence of a cause of action or defence are material facts.
  • Whether a particular fact is material or not will depend upon the circumstances of the case.

Omission to state material facts in pleadings:
If a party omits to state or plead any material fact, he will not be permitted to adduce evidence to prove such a fact at the trial. The general rule is that a party cannot prove a fact which he has not pleaded.

Remedy:
Pleadings need to be amended under Order VI Rule 17.
Following are the case laws on this subject:

KedarLal v. Hari Lai AIR 1952 Cal 176:
“It is the duty of the parties to state only the facts on which they rely upon their claims. Here one most important question is arose i.e. what is the meaning of the term material facts.”

Union of India v. Sita Ram 1977 SCR (1) 950:
“Material facts means all facts upon which the plaintiff’s cause of action or the defendant’s defense depends, or in other words, all those facts which must be proved in order to establish the plaintiff’s right to relief claimed in the plaint or the defendant’s defense in the written statement. ”

Udhav Singh v. Madhav Rao Scindia Air 1976 SC 744 The Supreme Court held that:
“The term material fact means “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 defense are material facts. ”

VirenderNath v. Satpal Singh (2007) 3 SCC 617 The Supreme Court held that:
“The phrase ‘material facts’ may be said to be those facts upon which a party relies for his claim or defense. In other words, ‘material facts’ are facts upon which the plaintiff’s cause of action or the defendant’s defense depends. What particulars could be said to be ‘material facts ’ would depend upon the fats of each case and no rule of universal application can be laid down. ”

Therefore, in the light of aforesaid case laws it is evident that omission to state material fact renders the pleading defective.

Question 3.
Amendment of the pleadings with reference to the general rule ‘no pleadings, no evidence’.
Answer:
Pleadings can be amended by the parties in a suit if:
Any of the important points is omitted from being given in the pleadings, it would be suicidal and the same cannot be raised in the Affidavit-in-Evidence at the time of leading of evidence.

There is a limited provision for amendment of pleadings as provided in Order 6, Rule 17 Civil Procedure Code, 1908. If any point has not been pleaded in the pleadings, no evidence could be led on that point. General rule is that no pleadings, no evidence.

Mrs. Om Prabha Jain v. Abnash Chand Jain AIR 1968 SC 1083; 1968 (3) SCR
“If a party omits to state or plead any material fact; he will not be ‘ permitted to adduce evidence to prove such a fact at the trial ”

Question 4.
Examine and comment on the following; Where an amendment changes the character of the suit, it cannot be allowed.
Answer:
Amendment of pleadings under Order 6, Rule 17 Civil Procedure Code, 1908 may be allowed by the Courts in the following manner:

  • The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purposes of determining the real question in controversy between the parties.
  • Any amendment which is not material or an amendment in other than material fact will not be allowed.
  • Any such amendment if it changes the nature or character of a suit should not be allowed. Only those changes which are necessary to adjudicate the disputes should be allowed.
  • It is a discretionary power of the Courts to allow an amendment. Courts may impose costs on the parties seeking amendment to compensate the other party for his loss of time and energy.

Question 5.
Examine and comment on the following; Pleadings cannot be constructed too technically.
Answer:
Pleadings should be construed in the following manner:-

  • The Court to look at the substance of the plaint and the relief sought.
  • A plaintiff’s case should not be defeated merely on the ground of some technical defect in his pleadings provided he succeeds on the real issues of the case. Substance of the plaints shall be seen rather than its mere form.
  • Pleadings should be read not by the piecemeal but as a whole and should be liberally construed.
  • The pleadings are not to be considered as constituting a game of skill between the advocates.

Question 6.
Material facts vis-a-vis immaterial facts while drafting a plaint.
Answer:
Facts in respect to a plaint may be either material or immaterial as given below:
Material Facts:
Every fact on which the cause of action is founded is material fact in a plaint. All facts which will be required to be proved at the trial in order to establish the existence of a cause of action are material facts.

Example of material facts: Where the case is based on a sale-deed, it is material to state that a particular person has sold property to him by a sale-deed dated …. which was duly registered.

Immaterial facts:
Facts other than material facts are immaterial facts. If such facts are incorporated, the pleadings, become voluminous, so much so that at the time of framing the issues, the matter becomes really a hard nut to crack. The litigation drags unnecessarily.

Example of Facts not Material: In a suit on a promissory note, it is not material to state that the plaintiff requested the defendant to make the payment and he refused, because no demand is necessary when the promissory note becomes due and it is payable immediately.

Question 7.
Write notes on the following; plaint structure.
Answert:
A suit is instituted by filing a plaint, which is the first pleading in a civil suit. A plaint comprises of:

1. Heading and Title:
Name of the court in which the suit is filed indicated at the top of the first page. Heading of the plaint means the court in which the suit is instituted [Order VII, Rule 1(a)]. Then comes the suit No. Thereafter the names of the parties to the suit with all necessary particulars is given. If there are more plaintiff or defendant than the names of all plaintiffs/and defendant should be given in plaint as plaintiff No. 1/ Defendant No.l and so on. Then comes the title of the suit.

Specimen:

IN THE COURT OF DELHI AT NEW DELHI
CS(OS) NO…./2020

IN THE MATTER OF:
A
S/o…
R/o…

Plaintiff

Versus

B
S/o…
R/o…

Defendant

SUIT FOR RECOVERY OF MONEY

2. Body of the plaint:
Heading and title is followed by the body of the plaint. The plaintiff acquaints the Court and defendant with the case. The statement of facts is divided into paragraphs numbered consecutively. Dates, time and numbers should be expressed in figures as well as in words.

Specimen:
The above named plaintiff states as follows:
1. That ………………………..
2. That ………………………..
3. That ………………………..

Body of the plaint is further divided into two parts:
1. Substantive portion:
This portion of the body of plaint is devoted to statement of all facts constituting the cause of action and the facts showing the defendant’s interest and liability.

2. Formal portion:
This portion of the plaint shall state the following essential particulars:
1. Date when the cause of action arose.

2. Statement of facts pertaining to jurisdiction.

3. Statement as to valuation of the suit for the purpose of jurisdiction and court fees and it should be stated that the necessary court fee has been affixed to the plaint.

4. Statement as to minority or insanity of a party or if he is representing some other body then statement as to plaintiff’s representative character.

5. When a suit is filed after the expiry the period of limitation a statement showing the ground or grounds on which he has claimed, exemption or condonation of delay in Limitation Law.

6. Every relief sought for by the plaintiff should be accurately worded either simply or in the alternative, and it shall not be necessary to ask for general relief which may always be given as the Court may think just.

7. Signature and Verification: The plaint must be signed by the plaintiff through advocate and if plaintiff is unable to sign the plaint, it must be signed by any person duly authorized by him to sign the same. The verification is done by the plaintiff himself. Affidavit should also be enclosed with plaint.

Question 8.
In a pleading, there is no scope for law and evidence as per Order 6 of the Code of Civil Procedure, 1908; yet, in practice, both are pleaded in higher courts, like High Courts and Tribunals.
Answer:
“Pleading” shall mean plaint or written statement. In a pleading, there is no scope of incorporating a provision of law or conclusion of law.

It is the intention of the framers of the Code of Civil Procedure 1908, that a pleading should state facts, and the position as in law shall be inferred if such facts are capable of raising any legal inference.

Key elements of drafting of pleadings as per Order VI, Rule 2, Civil Procedure Code, 1908 are as follows:

  • pleadings must contain 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.
  • Pleadings must not state the evidence by which the material facts are to be proved.
  • The pleading should present material facts showing the cause of action or defence as the case may be.
  • Provisions of law need not be placed in a pleading as general principle is that to find out the law is the duty of the court. Legal effects are not to be stated by the party.
  • In India, the duty of a pleader is only to set out the facts upon which he relies and not the legal inference to be drawn from them ie. the conclusion of law or a mixed question of law and fact should not be pleaded.
  • In like manner evidence has to be avoided in pleadings.

Question 9.
In the light of judicial pronouncements, discuss the following: Courts generally do not grant relief, if not prayed for.
Answer:
Order VII Rule 7 and Rule 8 of Code of Civil Procedure, 1908 deals with relief claimed in a plaint as given below:

Rule 7 of Order VII of Code of Civil Procedure, 1908

  • A relief claimed by the plaintiff simply or in the alternative shall be stated specifically.
  • It shall not be necessary to ask for general or other relief which may always be given as the Court may think just on the facts of the case to the same extent as if it has been asked for.

Rajendra Tiwary vs. Basudeo Prasad and Another AIR 2002 SC 136
“The same rule shall apply in cases of any relief claimed by the defendant in his written statement.”

Rule 8 of Order VII of Code of Civil Procedure, 1908

  • If the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and district grounds, they shall be stated as far as may be separately and distinctly

Shehla Burney vs. Syed Ali Mossa Raza (2011) 6 SCC 529 The Supreme Court has reiterated that:
“No relief can be granted against a party unless it has been specifically claimed in the suit or petition, as mandated by Order VII Rule(s) 5 & 7 of the Code of Civil Procedure. ”

In the light of aforesaid case laws it is correct to state that Courts generally do not grant relief, if not prayed for.

Question 10.
Write notes on the following; Written statement.
Answer:
A “written statement” is an answer to the claim made by the plaintiff in his plaint. It is required to be filed by the defendant.

Written statement is the statement or defence of the defendant by which he either admits the claim of the plaintiff or denies the allegations or averments made by the plaintiff in his plaint.

The written statement must:

  • Specifically deal with each allegation of fact in the plaint and when a defendant denies any fact, he must not do so evasively but answer the same in substance.
  • Confirm all the general rules of pleading.

Legal provision on written statement:

  • Order VI Rule I of Code of Civil Procedure 1908, pleadings include written statement.
  • Order VIII of Code of Civil Procedure 1908, deals with a detailed procedures of written statement.

Note: All the rules relating to defendant’s written statement apply, mutatis mutandis to such written statement of the plaintiff also.

Question 11.
Comment on the following statements; Essentials of a written statement.
Answer:
Following are the key essentials of a written statement:

  • A written statement is required to be filed by the defendant in answer to the claim made by the plaintiff in his plaint which is delivered to the defendant along with the summons to attend at the first hearing of the suit.
  • It is essential for the defendant to file his defence in writing.

Failure to file written statement:

  • If the defendant fails to file written statement, the court may pronounce judgment against him or may under O. 8, R. 10 of Civil Procedure Code, 1908
    • Mehar Chand v. Suraj Bhan AIR 1971 Putt; 43:
      “If the defendant does not file a written statement at or before the first hearing, the court can extend the time for filing it, ”
  • Written statement should conform to all the general rules of pleading
  • Written statement of the plaintiff
    • A subsequent pleading filed by the plaintiff, either in reply to a defendant’s claim of set off, or with leave of the court, in answer to defendant’s pleas in defence.
    • All the rules relating to defendant’s written statement apply, mutatis mutandis to such written statement of the plaintiff also.

Question 12.
Examine and comment on the following statement;,;Where the defendant pleads set off, he will be in the position of plaintiff.
Answer:
Order VIII Rule 6 of Code of Civil Procedure 1908 deals with particulars of set off to be given in written statement.

Where in a suit for the recovery of money the defendant claims to set off against the plaintiff’s demand any ascertained sum of money legally recoverable by him from the plaintiff, present a written statement containing the particulars of the debt sought to be set off.

Effect of Set off
The written statement shall have the same effect as a plaint in a cross suit so as to enable the court to pronounce a final judgment in respect both of the original claim and of the set off; but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

Thus it is correct to state that where the defendant pleads set off, he will ^ be in the position of plaintiff.

Question 13.
It is incumbent upon the defendant to file his defence in writing, else the court may pronounce judgment against him or make such order as it deems fit. Examine the statement and enumerate important points while drafting the reply or a written statement.
OR
While drafting written statements, certain important considerations must be borne in mind. Identify at least ten requirements with reference to law on the subject.
Answer:
Following are the important points which should be kept in mind while drafting a written statement:
1. If the plaint has raised a point/issue which is otherwise not admitted by the opposite party in the correspondence exchanged, it is advisable to deny such point/issue and let the onus to prove that point be upon the complainant. In reply, one has to submit the facts which are in the nature of defence and to be presented in a concise manner.

2. Attach relevant correspondence, invoice, challan, documents, extracts of books of account or relevant papers as annexures while reply is drafted to a particular para of the plaint;

3. The reply to each’ of the paras of the plaint be drafted and given in such a manner that no para of the plaint is left unattended.
Vinod Kumar v. Surjit Kumar AIR 1987 SC 2179
“The pleadings are foundations of a case”.

4. The reply/written statement should be supported by an Affidavit of the opposite party. The Affidavit to be sworn by any of the persons aforesaid and duly notorized by an Oath Commissioner. The court is bound to see in every case that the pleadings are verified in the manner prescribed and that verifications are not mere formalities.

5. The reply along with all annexures should be duly page numbered and be filed along with authority letter if not previously filed.

6. At the time of filing of reply, attach all the supporting papers, documents, documentary evidence, copies of annual accounts or its relevant extracts, invoices, extracts of registers, documents and other relevant papers.

7. I any of the important points is omitted from being given in the reply, it would be suicidal as there is a limited provision for amendment of pleadings as provided in Order 6, Rule 17 CPC, and also the same cannot be raised in the Affidavit-in-Evidence at the time of leading of evidence.

Mrs. Om Prabha Jain v. Abnash ChandJain AIR 1968SC1083; 1968 (3) SCR
“It is a settled law if any point has not been pleaded in the pleadings, no evidence could be led on that point. General rule is that no pleadings, no evidence.”

8. If a party is alleging fraud, undue influence, coercion or mis-representation, general allegations are insufficient. Party must state the requisite particulars in the pleading.

9. It is well settled that neither party need in any pleadings allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side unless the same has first been specifically denied.

10. In every pleading, one must state specifically the relief which the party is claiming from the court or tribunal or forum. All possible relief as would be permissible under the pleadings and the law.

Question 14.
Distinguish between the following; Plaint and Written statement.
Answer:
Following are the differences between aplaint and a written statement:

Plaint  Written Statement
1. The document stating the cause of action and other necessary details and particulars in support of the claim of the plaintiff is called the “plaint”. The defence statement containing all material facts and other details is called the “written statement”.
2. Plaint is filed by the plaintiff stating its facts and relief to be claimed by the plaintiff. The written statement is filed by the defendant as an answer to the contentions of the plaintiff and it contains all materials and other objections which the defendant might place before the court to admit or deny the claim of the plaintiff.                ’
3. Plaint is the first stage in a civil suit setting the legal machinery in motion. The defendant is required to file a written statement of his defense within 30 days from the date of receipt of the copy of the plaint. This time period is extendible to 90 days.
4. A plaint is usually divided in parts such as a heading, the cause title, the body, the prayer and signature and verification of the plaintiff. A general denial of grounds alleged in the plaint is not sufficient and denial has to be specific and must be substantiated with documentary evidence wherever possible.
5. Plaint should contain name, description and residence of defendant. Every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading shall be deemed to be admitted.
6. Order VII of Civil Procedure Code, 1908 deals with plaint. Order VIII of Civil Procedure Code, 1908 deals with written statement.

Question 15.
VT Ltd. instituted a suit against KA Furnitures Ltd. for breach of contract for supply of 200 study tables priced at ? 500 per table, on the following three counts:
i. KA Furnitures Ltd. did not supply full order within the stipulated time of three months from the date of contract,
ii. The wood used for making the tables was not as per agreed specify cations, instead of sheesham wood, neem wood was used.
iii. Legs of 50 tables were found bent and weak.
All this occasioned a’ heavy loss of ₹ 25,000, which was claimed with interest @10% per annum and costs in the suit against defendants. The defendant, KA Furnitures Ltd., refuted the claim made in the plaint by stating in written statement that “the defendant generally denies the allegations made by plaintiff as got up and unsustainable”.

Explain with reasons whether this defense would sustain in courts.
Answer:
Following are the legal provisions on denials to be made in a written statement:

Order VIII R. 3: Denial to be specific
It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth.

Order VIII R. 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.

Example: If it is alleged that defendant 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.

Order VIII R. 5: Specific denial
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.

Judicial precedent on denials:
Badat & Co. v. East India Trading Co. AIR 1964 SC 538
“It must be borne in mind that the denial has to be specific and not evasive ”

Union v. A. Pandurang AIR 1962 SC 630
“General allegation in the plaint cannot be said to be admitted because of general denial in written statement. ”

Conclusion
It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. In the light of the above, the general denials made by KA Furniture Ltd. against the specific averments of VT Ltd. are not valid.

Question 16.
Distinguish between the following; ‘Set-off’ and ‘Counter claim’ in the light of case law on counter claim.
Answer:

Set off  Counter Claim
1. Where the plaintiff sues a defendant for the recovery of money the defendant can defend that suit and he can claim a set-off in respect of any claim of his own. Counter claim is the claim made by the defendant against the averments made by the plaintiff in his plaint.
2. Order VIII Rule 6 deals with set off. Order VIH Rule 6 A deals with counter claim.
3. According to Black’s Law Dictionary set off is the defendant’s counter demand against the plaintiff, arising out of a transaction independent of the plaintiff’s claim. Black’s Law Dictionary defines it as a claim for relief asserted against an opposing party after an original claim has been made, especially a defendant’s claim in opposition
4. A claim by way of a set-off is allowed in the following conditions:

a. The sum claimed must be as-certained sum of money.

b. It must be legally recoverable.

c. It must be recoverable by the defendant.

d. It must be recoverable from the plaintiff.

e. The sum claimed by the defendant must not exceed the pecuniary limits of the jurisdiction of the Court.

A claim by way of a set-off is allowed in the following conditions:

a. The plaintiff has instituted a plaint against the defendant.

b. The defendant has a claim against the plaintiff.

c. It must be legally recoverable.

d. It must be recoverable from the plaintiff.

e. The sum claimed by the defendant may/may not exceed the pecuniary limits of the jurisdiction of the Court.

5. Set-off may be of two kinds: legal set-off and equitable set-off. There are no types of a counter claim.
6. Set off may be pleaded in the written statement itself. A separate document named ‘counter claim’ will be filed along with the written statement.
7. The plaintiff shall at the discretion of the Court, file a replication in answer to the written statement of the defendant within such period as may be fixed by the court. The plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by the court.

Question 17.
Explain the following; Preliminary submissions/objections in legal pleadings.
Answer:
Preliminary submissions confine to the true and correct facts regarding the issue involved and which have been suppressed or not disclosed by the other side in the pleadings.

Legal pleadings/submissions should be taken under the heading “preliminary submissions/objections”

While taking such plea one should ensure that the legal provisions and/ or interpretation thereof, is very clear and directly applicable to the issues | involved in the matter.

Following can be pointed out under the head preliminary submissions and objections:

  • The suit is barred by res judicata,
  • Jurisdictional defect if any,
  • Any incorrect fact forming part of the pleadings,
  • Plaint does not disclose cause of action etc.

Question 18.
What are the different forms of defence that may be adopted by a defendant while replying to opponent’s pleadings?
Answer:
Following are the different forms of defences that may be adopted by a defendant while replying to opponent’s pleadings:

  • Traverse: Where a defendant totally and categorically denies the allegations made out in the plaint.
  • Confession and Avoidance or special defence: Where the defendant admits the allegations but seeks to destroy their effect by alleging affirmatively certain facts of his own.
  • Objection in point of law: These objections are not founded on merits and are restricted to the point of law. These could be Dilatory or Peremptory pleas/pleas in bar.
  • Dilatory pleas: Another form of plea which delays the trial of a suit on merits is dilatory plea.

Example: Plea that the hearing be stayed under section 10, C.P.C.
or
The suit has not been properly framed, there being some defect in the joinder of parties or cause of action and the case cannot be decided until those defects are removed.

Some dilatory pleas are must be taken by separate proceedings g and some may be taken in the written statement under the heading “Preliminary Objections”

A defendant may adopt one or more of the above forms of defence. He can take such different defences either jointly or alternatively, even if such ‘ defences are inconsistent.

Question 19.
Explain, with example, the scope of interlocutory applications filed by the parties in courts. Cite applicable law, if any.
OR
Explain the following; Interlocutory orders.
Answer:
“Interlocutory” refers to an order, sentence, decree, or judgment, given in an intermediate stage between the commencement and termination of a cause of action, used to provide a temporary or provisional decision on an issue.

Following are the key element of interlocutory applications:

  • Interlocutory means not that decides the cause but which only settles some intervening matter relating to the cause. The court may make interlocutory orders as may appear to the court to be just and con¬venient at any stage of the suit.
    Example: Applications for appointment of Commissioner, Temporary Injunctions, Receivers.
  • An interlocutory application is an application which is moved in the main petition.
  • It is filed for some urgent relief or to bring certain new facts to the knowledge of the court.
  • Interlocutory Applications or Interlocutory Petitions are filed to sup¬port the main petition for an interlocutory relief during pendency of the main Petition.’
  • Powers of Court:
    Section 94 of Code of Civil Procedure, 1908 gives general powers of a Civil Court in regard to different types of Interlocutory orders. Also known as supplemental proceedings.
    Detailed procedures are set out in the Schedule I of the Code of Civil Procedure, 1908 providing 51 Orders and its corresponding Rules.

Question 20.
Distinguish between the following; Wordings in the order of perma¬nent injunction and wordings in the order of temporary injunction.
Answer:
Injunctions are preventive, prohibitive or restrictive le. when they prevent, prohibit or restraint someone from doing something or mandatory, i.e. when they compel, command or order some persons to do something. It is not the plaintiff alone who can apply for interim injunction.

Temporary injunction:
A temporary or interim injunction restrains a party temporarily from doing the specified act and can be granted until the disposal of suit. It is regulated by the provisions of Order 39 of the Code of Civil Procedure and it may be granted at any stage of the suit. The various circumstances under which the temporary injunction can be granted has been provided for under Order 39 Rule 1 C.P.C.

Permanent injunction:
Permanent injunction restrains a party for ever from doing the specified act and the same can be granted only on merits at the conclusion of the trial after hearing both the parties to the suit. It is governed by Sections 38 to 42 of the Specific Relief Act, 1963.

Question 21.
In light of the judicial pronouncements, discuss the following: It is well settled that evidence should be tailored strictly according to pleadings.
Answer:
According to Section 3 of the Evidence Act, 1872, Evidence means and includes

  • All statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry; such statements are called oral evidence.
  • All documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.

Habib Khan v. Valasula Devi AIR 1997 AP 52
“It is well settled that evidence should be tailored strictly according to the pleadings. No extraneous evidence can be looked into in | absence of specific pleadings.”

Question 22.
Relevance of counter affidavit in pleadings.
Answer:
Pleadings filed by a defendant/respondent in answer to the claims set out – by the plaintiff/petitioner in the form of an affidavit and/or supported by an affidavit are referred to as a counter affidavit.

Counter affidavits are filed in response to writ petitions filed before High Courts and Supreme Courts. Fundamental rues of pleadings are equally applicable on counter affidavits as they are applicable on plaints and written statements.

Question 23.
Write notes on the following: Affidavit in evidence.
Answer:
According to Section 3 of the Evidence Act, 1872, Evidence means and includes

  • All statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry; such statements are called oral evidence.
  • All documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.

Habib Khan v. Valasula Devi AIR 1997 AP 52
“It is well settled that evidence should be tailored strictly according to the pleadings. No extraneous evidence can be looked into in absence of specific pleadings.”

Considerations to be kept in mind while preparing the affidavit-in-evidence by the parties are:

  • The best evidence is that of a person who was personally involved in the whole transaction. In case, that person is not available for any reason, then any other person who has joined in his place to make deposition by way of his affidavit.
  • In case, the petitioner himself was involved in the execution of a contract, he should file affidavit-in-evidence.
  • The allegations or charges or grounds relating to facts should be re-produced duly supported by documentary evidence.
  • In the affidavit in evidence, the position of law or legal provisions or principle of law are not required to be proved by any party.
  • Section 5, Indian Evidence Act: Evidence may be given of facts in issue and relevant facts.
  • In case, the issue pertains to engineering, medical, technology, science etc., the evidence of expert is to be filed in the form of his Affidavit who shall also appear before the Forum for cross-ex¬amination by the counsel for the other party.
  • The party who is filing the affidavit-in-evidence should also file documents, papers or books or registers to demolish the defence or case set up by the opposite party.
  • Any party may bring any outside witness (other than the expert witness) in support of his case if permitted by the Court/Tribunal.
  • At the time of tendering affidavit-in-evidence, the party must bring along with it either the original document relied upon by it or bring with it the carbon copy of the same. Only photocopy of any paper or document cannot be relied upon and tendered as an evidence.

Question 24.
State the ten essential ingredients of an affidavit conforming to the provisions of Order XIX, Rule 1 of the Code of Civil Procedure, 1908.
OR
What is an affidavit? What are the rules that should be remembered while drafting an affidavit.
Answer:
An affidavit is a sworn statement in writing under oath before an authorized officer. Person swearing an affidavit is known as a deponent.
Order XIX Rule 3 of Civil Procedure Code, 1908 provides that affidavit should be confined to such facts as the deponent is able of his own knowledge to prove.

Following are the rules of drafting an affidavit:
1. Not a single allegation more than is absolutely necessary should be inserted

2. The person making the affidavit should be fully described in the affidavit.

3. An affidavit should be drawn up in the first person.

4. An affidavit should be divided into paragraphs, numbered consecutively, and as far as possible, each paragraph should be confined to a „j distinct portion of the subject.

5. Every person or place referred to in the affidavit should be correctly p» and fully described, so that he/she or it can be easily identified. 25

6. When the declarant speaks of any fact within his knowledge he must do so directly and positively using the words.
“I affirm” or “I make oath and say”.

7. Affidavit should generally be confined to matters within the personal knowledge of the declarant, and if any fact is within the personal knowledge any other person and the petitioner can secure his affidavit about it, he should have it filed. But he is also permitted to verify facts on information received, using the words “I am informed by so and so” before every allegation which is so verified. If the declarant believes the information to be true, he must add “and I believe it to be true”.

8. When the application or opposition rests on facts disclosed in documents or copies, the declarant should state what is the source from which they were produced, and his information and belief as to the truth of facts disclosed in such documents.

9.. The affidavit should have the following oath or affirmation written out at the end:
“I solemnly affirm that this my declaration is true, that it conceals nothing and that no part of it is fabe”.

10. Any alterations in the affidavit must be authenticated by the officer before whom it is sworn.

11. An affidavit has to be drawn on a non-judicial Stamp Paper as appli¬cable in the State where it is drawn and sworn.

12. An affidavit shall be authenticated by the deponent in the presence of an Oath Commissioner, Notary Public, Magistrate or any other authority appointed by the Government for the purpose.

13. Affidavits are chargeable, with stamp duty under Article 4, Schedule I, Stamp Act, 1899. But no stamp duty is charged on affidavits filed or used in Courts. Such affidavits are liable to payment of Court fee prescribed for the various Courts.

Question 25.
Draft the following Documents; Affidavit in support of Writ Petition filed against the State before the Hon’ble High Court of Rajasthan.
Answer:

IN THE HON’BLE HIGH COURT OF JUDICATURE AT RAJASTHAN
Writ petition No …………… of 2019

IN THE MATTER OF:
Mr……………………….
S/o ………,
R/o……………….

………………… Petitioner

VERSUS

The State of Rajasthan
Through the Secretary,
Education Department, Rajasthan

………………. Opposite Party

AFFIDAVIT

I …………….. son of …………….. aged about …………….. years resident of …………….. here by solemnly affirm and states on oath as under:
1. That the deponent is the Petitioner in the above noted Writ Petition and is fully conversant with the facts of the case deposed in the Writ Petition.
2. That the contents of Paragraph …………….. to …………….. of the accompanying Writ Petition are true to my personal knowledge.
3. That the contents of paragraph …………….. to …………….. are based on legal advice, which I believe to be true.
4. That no part of it is false and nothing material has been concealed. So help me God.

DEPONENT

VERIFICATION

I …………….., the above named deponent, do hereby verify that the contents of paragraphs 1 to 4 of this Affidavit are true to the best of my knowledge. Signed and verified this …………….. day of …………….. at

DEPONENT

Question 26.
Draft an Affidavit of a creditor in proof of his debt in proceeding for the liquidation of Company. Assume data.
Answer:
IN THE (HIGH) COURT,OF………………………………………..

The matter of the Companies Act, 2013
And

The matter of the liquidation of ……………….. Company Limited.
I, A.B., aged ……………….. years, son of Shri ……………….. resident of ……………….., do hereby on oath (or on solemn affirmation) state as follows:

1. That the above named company was on the ……………….. day of ……………….., 2018, the date of the order for winding up the same, and still is justly and truly indebted to me in the sum of ₹ ……………….. (Rupees ……………………….. only) in account of (describe briefly the nature of the debt).
2. That in proof of the aforesaid debt I attach hereto the documents marked A, B and C.
3. That I have not, nor have any person or persons by my order or to my knowledge or belief for my use, received the aforesaid sum of Rupees ………………………. or any part thereof, or any security or satisfaction for the same or any part thereof except the sum or security (state the exact amount of security).
4. That this my affidavit is true, that it conceals nothing and no part of it is false.

Sd/- A.B.
Deponent

Dated………………………..

VERIFICATION

I, the above named deponent, verify that the contents of paragraphs 1 to 4 of this affidavit are true to my personal knowledge.

Deponent

Solemnly affirmed before me on this ………………….. day of ………………….. 2018 of ………………….. (time) by the deponent.

Sd/-…………………..
(Oath Commissioner)

Question 27.
Decree has been awarded by the court. Advice on information re¬quired for making written application for execution of decree.
Answer:
Every application for the execution of a decree shall:

  • Be in writing
  • Signed and verified by the applicant or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case, and

Contain in a tabular form the following particulars, namely:

  • The No. of the suit
  • The names of the parties
  • The date of the decree
  • Whether any appeal has been preferred from the decree
  • Whether any payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree
  • Whether any previous applications have been made for the execution of the decree, the dates of such applications and their results.
  • The amount with interest if any due upon the decree, or other relief granted thereby, together with particulars of any cross decree, whether passed before or after the date of the decree sought to be executed.
  • The amount of costs if any awarded.
  • The name of the person against whom execution of the decree sought.

Question 28.
Examine the following statements; The right of appeal is not a natural or inherent right.
Answer:
A right of appeal is a statutory right. Following are the key elements of a right to appeal:

  • It is a creation of the statute.
  • It is the statute alone to which the Court must look to determine if a right of appeal exists in a particular instance or not.
  • Parties cannot create a right of appeal by agreement or by mutual consent.
  • It is not a matter of procedure but a substantive right and can be taken away only by a subsequent enactment if it says so expressly or by necessary intendment and not otherwise.
  • It is for the appellant to show that the statute gives a right of appeal to him.

Question 29.
Distinguish between the following; ‘Appellant’ and ‘defendant’.
Answer:
Appellant:
Appellant is one who appeals against a decision, or remove a cause from a lower to a higher Tribunal/Court. An appellant, sometimes called the petitioner must demonstrate sufficient grounds for appeal, which ‘ are usually specified by statute, in order to challenge the judgment or findings.

Defendant:
Defendant is the party sued in an action. The title defendant is more generally applied to a party in civil than in a criminal suit or proceed¬ing. The word defendant may include a respondent.”
According to the Limitation Act, 1963, “defendant” includes-
a. Any person from or through whom a defendant derives his liability to be sued;
b. Any person whose estate is represented by the defendant as executor, administrator or other representative.

Question 30.
Explain the provisions of Appeal under Civil Procedure Code, 1908. What points are to be considered while drafting an appeal?
Answer:
Appeal is an application made by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court. The term “Appeal” has not been defined in the Code of Civil Procedure, 1908.
The appellate authority is conferred with the powers to:
a. Reverse the order under appeal
b. Modify the order
c. Dismiss the appeal and thus confirm the order.

Statutory Right:
It is the statute alone to which the Court must look to determine whether a right of appeal exists in a particular instance or not.

The right of appeal is not a matter of procedure, but is a substantive right and can be taken away only by a subsequent enactment, if it says so expressly or by necessary intendment and not otherwise.

Following are the points to be considered while drafting an appeal:

  • The memorandum of appeal must contain the name of the court in which it is filled, the number of the appeal and year in which it is % filled. Then follows the names and address of the parties concerned. Thereafter, the grounds of appeal may be listed out.
  • A body of appeal may be divided into 3 parts:
    a. Formal part known as memorandum of appeal
    b. Material part or grounds of appeal
    c. Relief sought for
  • Grounds of appeal:
    • Grounds of objection should be written distinctly and specifically.
    • They should be written concisely.
    • They must not be framed in a narrative or argumentative form.
    • Each distinct objection should be stated in a separate ground and the grounds should be numbered consecutively.
  • The memorandum of the appeal must contain the relief sought by the appellant.
  • The memorandum of the appeal may be signed by the appellant himself or by his counsel. If there are several appellants and no counsel, it need to be signed by all of them. It is not required to be verified.

Question 31.
Write notes on the following; Conditions for Appeals before the Hon’ble Supreme Court in Civil cases.
Answer:
The Supreme Court of India is the Apex Court in the country and j hence the final court of appeal for any litigant. The Supreme Court has j appellate jurisdiction as well as original jurisdiction.

Under Article 133 of the Constitution of India an appeal lies in cases where the High Court certifies that a substantial question of law needs to be decided by the Supreme Court. Article 133 deals with conditions for appeals to the Hon’ble Supreme Court from decisions of High Court in civil proceedings. For an appeal to the Hon’ble Supreme Court the conditions laid down in this article must be fulfilled.

These conditions are:

  • The decision appealed against must be a “judgment, decree or final order” of a High Court in the territory of India.
  • Such judgment, decree or final order should be given in a civil proceeding.
  • A certificate of the High Court to the effect that:
    a. The case involves a substantial question of law of general importance.
    b. In the opinion of the High Court the said question needs to be decided by the Supreme court.

Question 32.
In What respect, if any, pleadings in the memorandum of appeals under sections 96 to 99, Order XLI, sections 100 to 103, 104 to 106, Order XLIII, Rules 1 and 2 and Appeals to Supreme Court under the Code of Civil Procedure, 1908, differ from the pleadings in appeals under Articles 132(1), 133 and 134 of the Constitution of India.
OR
Define ‘appeal’. Discuss various kinds of appeal provided under the Code of Civil Procedure, 1908.
OR
State the provisions relating to appeals under the code of Civil Procedure, 1908.
Answer:
Provisions of appeal under the Code of.Civil Procedure, 1908

Appeals from original decrees:
Sections 96 to 99 and Order XLI of Code of Civil Procedure, 1908 may be preferred from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.
Appeals lie on points of law as well as on facts.

Second Appeals:
Appeals under sections 100 to 103 of Code of Civil Procedure, 1908 lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court,
Appeals lie if the High Court is satisfied that the case involves a sub-stantial question of law.

Appeals from Orders:
Appeals under sections 104 to 106 along with Order XLIII of Code of Civil Procedure, 1908 would lie only on grounds of defect or irregularity of law pertaining to:
a. An Order under section 35A of the Code allowing special costs.
b. An Order under section 91 or Section 92 refusing leave to institute a suit.
c. An Order under section 95 for compensation for obtaining arrest, attachment or injunction on insufficient ground.
d. An Order under the Code imposing a fine or directing the detention or arrest of any person except in execution of a decree.
e. Appealable Orders as set out under Order XLIIL

Provisions of appeal under the Constitution of India
Appeals to the Supreme Court

Article 132 of the Constitution of India:
provides that an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceedings, if the High Court certifies under Article 134A that the case involves a substantial question of law as to interpretation of the Constitution.

Article 133 of the Constitution of India:
deals with appeals to the Supreme Court from decisions of High Court in civil proceedings.

Article 134 of the Constitution of India:
A limited criminal appellate jurisdiction is conferred upon the Supreme Court by the Constitution of India. It is limited in the sense that the Supreme Court has been constituted a Court of criminal appeal in exceptional cases where the demand of justice requires interference by the highest Court of the land.

Question 33.
A suit for specific performance was instituted in the civil Court at Delhi against Positive Energy Ltd. The managing director asked the Company Secretary to file written statement under his own signature as if he had implied authority to do so. This was done, but the plaintiff sought dismissal of the written statement for want of proper legal authority for verifying written statement. In the meantime, the company granted ex post facto sanction and ratification of the authority of the Company Secretary to sign pleadings on behalf of the company. Yet, the Court dismissed the written statement.
On what legal grounds, should the aggrieved company prefer an appeal impugning civil court’s order? Cite case law, if any.
Answer:
Following are the judicial pronouncements on this subject:

  • In the case of Nitre Ltd. v. National Insurance Co. Ltd. 41 (1990) DLT 63, it was held that: I
    • “If the plaint or a reply is not filed by a duly authorized person, the petition would be liable to be dismissed.”
  • In the case of United Bank of India v. Naresh Kumar, Justice Kirpal B.N on 18 September, 1996 held that:
    • “In case of signing/filing written statement of pleadings by a person not duty authorized the authority exercised could be ratified subsequently.”

Conclusion
In the above case, ex-post/acforatification has been accorded. Therefore the lacuna has been dealt with and the company is in a position to defend the allegations made against it in the plaint through its authorized representative. An appeal can lie on this ground and order dismissing the suit should be set aside.

Question 34.
‘A’ has filed a suit against ‘B’ for recovering possession of an agricul¬tural land amounting to rupees 5 Lakh. ‘B’ contends that he is the owner of property and not a tenant. In first instance Court rejects the defence of ‘B’ and passes a decree for possession of property in Execution. Now ‘B’ has filed an appeal against execution of decree. ‘B’ wants the execution of decree to be stayed.

Draft an application as an advocate of ‘B’. You are at liberty to choose the necessary details.
Answer:

IN THE COURT OF DISTRICT JUDGE, SAKET
CIVIL APPEAL NUMBER ……………. OF 2017
(CIVIL APPELLATE JURISDICTION)

IN THE MATTER OF:
B,
S/o……..
R/o……………

Appellant
(Original Defendant)

Versus

A,
S/o……..
R/o……..

Respondent
(Original Plaintiff)

APPLICATION FOR EXECUTION

This humble petition of the above named appellant is as under:
1. The appellant has filed this appeal against the judgment and decree dated …………… passed by civil judge, Saket ordering possession of the agricultural land situated at …………… details …………… to the Respondent.
2. The Respondent has been declared as the owner of property by the subordinate Court.
3. The Respondent has filed an application for execution of decree in the lower court Application No …………… of 2017 before the civil judge attempting to take possession of the land.
4. If this possession is granted to the respondent, the appellant will be put to an irreparable loss as material facts have been ignored by the learned judge.
5. That appeal has been preferred before this Hon’ble Court on the follow grounds:-
a. That the Hon’ble Judge has erred in examining the witnesses of the appellant.
b. That the Hon’ble Judge has erred in interpreting the law on the subject matter.
c. Hon’ble Judge has erred in passing an order that the claim of the appellant herein is false and frivolous.
6. That the valuation of this appeal for the purposes of payment of court-fee is fixed at ₹ …………… and the requisite court fee in the form of stamps is appended to this memorandum of appeal.
7. That this appeal is being filed within the prescribed period of limitation, the judgment and decree under appeal having been passed on ……………

PRAYER

In the above facts and circumstances the appellant prays that this appeal be allowed, the judgment and decree under appeal be set aside and the decree prayed for by the appellant in his suit before the court below be passed together with up-to-date interest and costs of both courts.
Place……………                                                                                                                                    APPELLANT

THROUGH

Date……………                                                                                                                                   ADVOCATE

VERIFICATION

Verified at …………… on this, the …………… day of …………… , 2013 that the contents of the above appeal are correct to the best of my knowledge and belief …………………………

APPELLANT

Question 35.
Business contracts these days specify the rights, liabilities and activities of the parties in detail. Still in the event of breach of the contractual f obligations, irreparable intangible damages like loss of reputation and market do occur. Advise the remedies and redressal action’, an aggrieved party to the contract can take under the civil law in such an event if the contract could still be saved. Cite legal provisions, if any.
Answer:
There are different set of remedies available for an aggrieved party to the contract. It depends on facts to facts basis as to which form remedy will be most appropriate. An aggrieved party may seek the following remedies:

Injunction:

  • An injunction is a specific order of the Court forbidding the commission of a wrong or the discontinuance of a wrongful course of action already begun.
  • Injunction may be either temporary or permanent.

Permanent injunction:
It restrains a party for ever from doing the specified act and the same can be granted only on merits of the case at the conclusion of the trial after hearing both parties to the suit. It is governed by Sections 38 to 42 of Specific Relief Act, 1963.

Temporary injunction:
It restrains a party from doing the specified act and can be granted until the final disposal of the suit. It is regulated by the provisions of Order 39 of the Code of Civil Procedure, 1908 and it may be granted at any stage of the suit.

The power to grant temporary injunction is at the discretion of the Court. This discretion however should be exercised reasonably, judiciously and on some legal principles.

Suit for specific performance:

  • Specific performance is an order of the court which requires a party to perform a specific act, usually what is stated in the contract.
  • Specific performance is granted when damages are not an adequate remedy and in some specific cases such as sale of land.
  • The power to grant specific performance is at the discretion of the Court.

The Supreme Court in Babulal vs. Hazari Lai and others 1982 AIR 818 has held that:
“No special form of decree on a suit for specific performance is supplied by CPC. Chapter 11 of Special Relief Act, 1963 deals with the various , circumstances under which a contract may be enforced specifically and when it cannot be allowed. When a contract is to -be specifically enforced, it means simply that when the parties do not agree to perform the contract mutually, the intervention of court is required.”

Question 36.
Ankush leased out his plot No. 111 in village Pilakhua, to Dinesh for three years from 1st June, 2012 for carrying out only nursery business therefrom. The plot has several Sheesham trees. A lease deed was signed by both the parties and registered as required by law. Dinesh has been | doing nursery business but with effect from 1st October, 2014, he started digging earth from said plot for using it in his adjoining brick-kiln. A notice dated 5th October, 2014 served on him by Registered AD post asking him to stop digging earth from said plot, was ignored by Dinesh, the lessee. The plot continues to be damaged in this manner. It causes irreparable damage thus. Ankush intends to institute an injection-cum-damages suit in a court of competent jurisdiction praying for restraining Dinesh from digging earth from said plot and damages pendente lite. Interests and costs are also to be claimed. Assuming supplementary data, draft a specimen plaint.
Answer:

IN THE COURT OF CIVIL JUDGE AT ……………….
CS (OS) No …of 2015

Ankush
S/o ………….
Aged ……..
R/o …………..

Plaintiff

Versus

Dinesh
S/o………….
Aged……….
R/o………….

Defendant

PLAINT FILED ON BEHALF OF THE PLAINTIFF SEEKING PERMANENT INJUNCTION

The above named plaintiff states as follows:
1. That the plaintiff is the owner of a plot comprising in Khata Khatauni No. _______ , Khasara No._______ measuring __________ Biswas situated in _______ which is against the Municipal Corporation Act and Bye-Laws and Town & Country Planning Act and Rules.
2. The plaintiff let plot No. 111 in village Pilakhua to the defendant by a deed of lease, dated 1st June, 2012 for the purpose of a nursery for 3 years and the defendant agreed by the said deed of lease not to use the land for any other purpose. A copy of the lease deed dates… is filed as ANNEXURE-1.
3. The defendant has since 1st October, 2014 commenced to dig earth from the said plot for the purpose of his adjoining brick kiln. Photo¬graphs of complainant digging the earth as annexed as ANNEXURE-2.
4. The removal of earth from the land would make it unfit for cultivation for several years and would even otherwise reduce its quality and value and compensation in money would not afford adequate relief to the plaintiff.
5. The defendant threatens and intends unless restrained from so doing to continue to dig earth from the said plot.
6. That the plaintiff sent a legal notice to defendant calling upon him to stop digging on 15th October 2014.
7. That the plaintiff has suffered damages of ₹ ………
8. That the cause of action arose when the defendant started digging the earth on 1st October 2014. It further arose when the defendant refused to stop digging o 1st November 2014.
9. That the said land is within the jurisdiction of this Hon’ble Court hence this court has each and every jurisdiction to try and entertain this suit.
10. That the value of the suit for the purposes of jurisdiction has been fixed for ₹ … and for the purposes of declaration and correct and authorized court fee stamp of ₹ ______ has been affixed on the plaint.
11. That no suit has been instituted against the defendants on the same or similar cause of action in any other court.

PRAYER

In light of the aforesaid circumstances, it is most respectfully prayed that j this Hon’ble Court may be pleased to:

Pass a decree of permanent injunction restraining the defendant and his 1 servants from digging the land over the suit plot Directing the defendant g to remove illegal and unauthorized construction over the suit land owned and possessed by the plaintiff.
Place…………                                                                                                                                   PLANTIFF

Through

Date………..                                                                                                                                   ADVOCATE

VERIFICATION

I Ankush, plaintiff in above suit do nearby solemnly verified that the contents of above plaints in Paras 1 to 8 are true to my knowledge and belief. Nothing material has been concealed.
Verified at ______________ .

PLAINTIFF

Followed by affidavit

Question 37.
Explain the following; Complaint under Criminal Procedure Code and Requisite of Valid Complaint.
‘OR’
Explain the following; Requisites of a complaint along with relevant case laws.
Answer:
Section 2(d) Criminal Procedure Code defines a “complaint” as any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, stating that some person, whether known or unknown, has committed an offence, but it does not include a police report.

However, a report made by the police officer in a case which discloses after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and the police officer making the report as a complainant.

In general a complaint into an offence can be filed by any person except in cases of offences relating to marriage, defamation and offences mentioned under sections 195 and 197 of Indian Penal Codes, 1860.

Requisites of a complaint:
Following are the requisites of a complaint:

  • An oral or a written allegation.
  • Some person known or unknown has committed an offence
  • It must be made to a magistrate.
  • It must be made with the object that he should take action.

Format of Complaint:
There is no particular format of a complaint.
Mohd. Yousuf v. Afaq Jahan AIR 2006 SC 705
“A petition addressed to the Magistrate containing an allegation that an offence has been committed, and ending with a prayer that the culprit be suitably dealt with is a complaint. ”

Complaint need not be presented in person. A letter to a magistrate stating facts constituting an offence and requesting to take action amounts to a complaint.

Question 38.
Distinguish between the following; ‘Complaint’ and ‘plaint’.
OR
A complaint in a criminal case is what a plaint is in a civil case, whether the complaint is made to police or to a court.
Answer:
Following are the differences between ‘Complaint and Plaint’:

Complaint:
Complaint under section 2(d) of the Criminal Procedure Code, 1973 means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence, but it does not include a police report.

However, a report made by the police officer in a case which discloses after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and the police officer making the report as a complainant.

Plaint:
Order VI, R. 1 of Civil Procedure Code 1908 defines ‘pleading’. It means either a plaint or a written statement.
Plaint is the statement of claim, in writing and filed by the plaintiff, in which he sets out his cause of action with all necessary particulars.
Order VII of Code of Civil Procedure, 1908 deals with plaint.

The purpose that complaint accomplishes in criminal trial is accomplished by a plaint in a civil trial. A Complaint in a criminal case is what a plaint is in a civil case.

Question 39.
Draft a complaint under section 498 of the Indian Penal Code, 1860 for enticing away a married woman.
Answer:

IN THE COURT OF THE JUDICIAL MAGISTRATE OF THE 1ST CLASS, HYDERABAD
Complaint Case No…………of 2015

AB                                                                                                                                   Complainant

Versus

CD

Accused
Offence u/s 498, IPC
Police station:………………

COMPLAINT

1. The complainant is the mother of A residing along with her grandmother Z, son A, A’s wife B, and A’s two year old son ‘X’.
2. About six months back complainant’s son, A left for Bahrain, a foreign country on business purposes.
3. The accused who was a friend of the complainant’s son developed intimacy with B, in the absence of B’s husband.
4. On the ……….. day of …………… the accused and B were found missing.
5. Friends and others on inquiry told the complainant that they saw both the accused and B at the Hyderabad Airport waiting to board a foreign bound flight.
6. The complainant, being the lawful guardian of B in the absence of B’s husband prays that a search warrant under section 100 of the Criminal Procedure Code be issued for the production of B, the daughter-in-law of the complainant before this Court.
7. The complainant also prays that a non-bailable warrant against the accused be issued as he is preparing to leave the country.
8. The police were informed about this offence that has referred the complaint to this Court.

PRAYER

In light of the aforesaid circumstances, it is most respectfully prayed that this Hon’ble Court may be pleased to:
i. Register a complaint against the accused under section 498 Indian Penal Code, 1860
ii. Issue search warrant under section 100 of the Criminal Procedure Code, 1973
iii. Direct such further orders as this Hon’ble Court may deed fit and proper.

Place…………..                                                                                                                                   COMPLAINANT

Through

Date………….                                                                                                                              ADVOCATE DETAILS

VERIFICATION

I, AB, complainant in above suit do nearby solemnly verified that the contents of above plaints in Para … to … are true to my knowledge and belief. Nothing material has been concealed.
Verified at…………….

COMPLAINANT

Followed by affidavit

Question 40.
‘A’, a landlord in Ahmedabad, engaged a servant to do household work, on a monthly salary of ₹ 5,000 plus food and clothing. After serving ‘A’ for a fortnight, the servant disappeared and it was found that the servant had taken away A’s gold watch, shirt with gold buttons, a purse which contained ₹ 20,000 and one silver flower pot. Draft a complaint before First class Magistrate Ahmedabad.
Answer:
IN THE COURT OF FIRST CLASS MAGISTRATE, AHMEDABAD
Complaint Case No.___________________

IN THE MATTER OF:
A,
D/o…………
R/o…………

Complainant

Versus

B,
S/o………….
R/o…………

Accused
U/Section 381 IPC
Police station:……..

COMPLAINT

Most respectfully showeth:
1. That the complainant is the landlord of a building bearing No……. in Ahmedabad.
2. That about a fortnight ago, complainant engaged the accused as domestic servant on a salary of ₹ 5,000/- per month plus food and clothing.
3. Yesterday, the accused suddenly disappeared.
4. complainant made enquires and found her gold watch, shirt with gold buttons and purse containing ₹ 20,000/- missing along with one silver flower pot.
5. The complainant, at once lodged complaint with the police.
6. The complainant has made enquiries from the accused’s place and have learnt that the accused is preparing to run away from Ahmedabad.
7. That the Magistrate has the jurisdiction to try the present case.

PRAYER

In light of the aforesaid circumstances, it is most respectfully prayed that this Hon’ble Court may be pleased to:
i Register a complaint against the accused under section 381 Indian Penal Code, 1860.
ii. Issue search warrant under section 100 of the Criminal Procedure Code, 1973.
iii Direct such further orders as this Hon’ble Court may deed fit and proper.
Place………..                                                                                                                                   COMPLAINANT

Through

Date…………                                                                                                                                   ADVOCATE

VERIFICATION

I, A, complainant in above suit, do nearby solemnly verified that the contents of above plaints in Para … to … are true to my knowledge and belief. Nothing material has been concealed.
Verified at…………..

COMPLAINANT

Followed by affidavit

Question 41.
Draft an application for grant of bail.
OR
Mr. X from Teerathgarh in Jagdalpur District. He is an old man of 56 years of age hailing from a responsible family. He has been put on trial u/s 409 of IPC, Criminal breach of trust by Public Servant which is a non-bailable offence. He had collected ? 1100 as a land revenue and failed to deposit it in Treasury. He has been arrested and is under trial. Draft an application of bail on behalf of Mr. X by choosing your own facts, name ‘
of Court hearing the trial and other necessary details.
Answer:

IN THE COURT OF SH. ……………….. MAGISTRATE
FIRST CLASS JAGDALPUR
CRIMINAL COMPLAINT NUMBER ……………….. OF 2019

Police Station :…………………

IN THE MATTER OF:                                                                                                                                   COMPLAINT
State of Chhattisgarh

Versus

Mr. X
S/oY
R/o….

ACCUSED

APPLICATION FOR BAIL UNDER SECTION 436 CODE OF CRIMINAL PROCEDURE 1972
It is submitted on behalf of aforesaid accused as under:
1. That the accused was arrested by the Teerathgarh police station on 22nd January 2019 under section 409 of Indian Penal Code and is under police custody for last 10 days.
2. The main allegation is that the accused in the capacity of public servant has failed to deposit a petty sum of Rupees 1100 in the State treasury and hence has committed criminal breach of trust.
3. Although the offence is non-bailable, but considering such a small amount involved, it is highly improbable that he would ever think of misappropriating such a small sum.
4. This could be due to some honest mistake on part of the accused which can well be attributed to his growing age.
5. The accused has otherwise an absolute clean record, belongs to a responsible family in the village and his chances to abscond are remote.
6. Under the above circumstances it is prayed that the said accused may be enlarged on bail for which the accused is willing to give such H security as may be determined by the Hon’ble Court.
7. For this act of kindness the accused shall be duty bound and is prayed accordingly

Place:……………..                                                                                                                                   SD/-
Date :…………….                                                                                                             Advocate for Mr. X

Question 42.
Draft a Bail application on behalf of the Director of a company who has been falsely implicated for financial irregularities in the company. Assume data if required.
Answer:

IN THE COURT OF…………….MAGISTRATE………….
The State……………….
Versus
Accused AB son of TZ, Village:………………..
Thana:……………
In the matter of petition for bail of accused
AB, during police enquiry

The humble petition of AB the accused above-named
Most respectfully showeth:
1. That your petitioner was arrested by the police on 4th December, 2018 on mere suspicion. That more than a month has passed after the arrest but still the Investigating Police Officer has not submitted a charge-sheet.
2. That your petitioner was not identified by any auditor inmate of PQ Ltd. where the financial bungling is alleged to have taken place, nor was any incriminating document found in his office or residence.
3. That your petitioner has not dealt any banking or financial transaction during the last one year and moreover, there is very strict internal control system in the company.
4. That the company has formed a committee and the internal commit¬tee has already placed a report before the management. There is no allegation against the petitioner so far.
5. That your petitioner has reason to believe that one GS with whom
your petitioner is on bad terms and who is looking after the oase for complainant has falsely implicated your petitioner in the case out of H grudge.
6. That your petitioner shall fully co-operate with the police.
7. That your petitioner is not likely to abscond Or leave the country.

PRAYER

Your petitioner prays that your Honour may be pleased to call for police, papers and after perusing the same be pleased to direct the release of your petitioner on bail.
And your petitioner, as in duty bound, shall ever pray.

PETITIONER

THROUGH

ADVOCATE AB

VERIFICATION

I, AB, son of TZ, residing at…………… by occupation business, do hereby solemnly affirm and say as follows:
1. I am the petitioner above-named. I know and I have made myself acquainted with the facts and circumstances of the case and I am able to depose thereto.
2. The statements in paragraphs 1 to 7 of the foregoing petition are true and correct to my knowledge and belief.
3. I sign this verification on the 6th day of January, 2019.

PETITIONER

Solemnly affirmed by the said AB
On ………2019 at the Court
House at ………………… AB
Before me
Notary/Magistrate

Question 43.
Draft a Specimen Petition by wife under section 125 Cr. P.C. 1973 for maintenance.
Answer:
IN THE COURT OF JUDICIAL MAGISTRATE 1ST CLASS, SAKET
Case No. 25 of 2020 under section 125, Cr. P.C.
Pleadings – Drafting, Pleadings and Appearances Important Questions 2

PETITION FOR MAINTENANCE OF PETITIONER FROM THE OPPOSITE PARTY UNDER SECTION 125, CR.P.C.

MOST RESPECTFULLY SHOWETH:
1. Your petitioner is the married wife of the opposite party. The marriage between them was solemnised according to the Hindu rites on 3rd ‘ January 2010.
2. The opposite party is a clerk on the staff of AB & Co. Ltd. holding a responsible position and drawing salary of ₹ 15,000/- per month.
3. The opposite party severely assaulted the petitioner in January 2018 and drove her away from the matrimonial house in presence of several gentlemen of the locality.
4. That the opposite party leads a life of drunkenness and debauchery. He is besides a man of uncertain temperament and would fly into rage in season and out of season without any reason whatsoever. He has lost all sense of decorum and would use extremely filthy language.
5. Your petitioner after being driven out of the house by the opposite party, came over to her father’s place on the same day and has been staying at father’s house with his family members.
6. The opposite party was served with a pleader’s notice to send your petitioner ₹ 2000 every month for her maintenance but with no result. Copy of the notice is annexed herewith as ANNEXURE-1.
7. Having regard to the violent temper of the opposite party and his in-human way of beating your petitioner she does not venture to go back to the place of the opposite party.
8. That this Court has jurisdiction to admit, entertain and adjudicate the present petition.
9. That this petition is not barred by limitation.

PRAYER

In the facts and circumstances discussed above the petitioner prays that this Hon’ble Court be pleased to:
i. Issue notice to the opposite party and after taking evidence of both sides be pleased to order the opposite party to pay the petitioner maintenance at the rate of ₹ 2000 per month.
ii Such other orders as this Hon’ble Court may deem fit and proper. And your petitioner, as in duty bound, shall ever pray.

PETITIONER

PLACE:_________                                                                THROUGH
DATE:_________

ADVOCATE DETAILS

Verification

I, ___________ daughter of Shri _________ resident of __________ do hereby solemnly affirm and say as following:
i. I am the petitioner above-named and I know the facts and circum¬stances of the case and I am able to depose thereto.
ii The statements in the paragraphs 1-7 of the foregoing petition are true to my knowledge and that I have not suppressed any material fact.

S/D
PETITIONER

Followed by Affidavit

Question 44.
FIR can be lodged with the Police Station only in case of cognizable offences. What do you understand by non-cognizable offences?
Answer:
Section 154 of the Criminal Procedure Code, 1973 deals with cognizable offence.
1. Every information relating to the Commission of a cognizable offence, if given orally to an officer in-charge of a police station, it shall be reduced in writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing, or reduced in writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe.

2. A copy of the information so recorded shall be given forthwith, free of cost to the informant.

3. A person aggrieved by refusal on the part of the Police Officer to record the said information, may send the substance.

The provisions of Section 154 are mandatory and the concerned Police Officer is duty bound to register the case on receiving information disclosing cognizable offence.

Non-Cognizable Offence:

  • A non-cognizable case means, ‘a case in which, a police officer has no authority to arrest without warrant.
  • These offences are not much of serious in nature. Example: As-sault, Cheating, Forgery, Defamation.
  • Section 155 of Cr. P. C. provides that in a non-cognizable offence or case, the police officer cannot receive or record the FIR unless he obtains prior permission from the Magistrate.

Question 45.
Write notes on the following; FIR and Complaint.
OR
FIR can be lodged with the Police Station whereas a complaint is to be made to the Magistrate.
Answer:
Complaint:
According to Section 2(d) of the Code of Criminal Procedure, 1973
“Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence, but it does not include a police report.

Complaint must be submitted to the Magistrate. If it is submitted to some other official it is not a complaint. In order to be a complaint, the petition must make allegations about occurrence of some offence.

FIR:
According to Section 154 of the Code of Criminal Procedure, 1973,”FIR” means every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant.

Every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

Question 46.
Distinguish between the following; First Information Report (FIR) and Complaint.
Answer:
Following are the differences between complaint and FIR:
Pleadings – Drafting, Pleadings and Appearances Important Questions 2

Question 47.
Genuineness of information of an offence as a condition precedent for registration of offence under the Code of Criminal Procedure, 1973.
OR
Draft the following as per instructions:
A sample FIR assume facts. Comment “Genuineness or creditability of the information is not a condition precedent for FIR”.
Answer:

  • According to Section 154 of Code of Criminal Procedure, 1973, The police officer concerned is duty-bound to register the case on receiving information disclosing cognizable offence.
    • Lallan Chaudhary and Ors v. State of Bihar AIR 2006 SC 3376, The Supreme Court held that:
    • “Section 154 of the Cr.P.C 1973 casts a statutory duty upon police officer to register the case, as disclosed in the complaint, and then to proceed with the investigation. The mandate of Section 154 of the Cr.P.C 1973 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer-in-charge of a police station, such police officer has no other option except to register the case on the basis of such-information.”
  • Genuineness or credibility of the information:
    • Ramesh Kumari v. State (NCT of Delhi) and Ors. 2006 Cri.LJ 1622
    • “Genuineness or credibility of the information is not a condition precedent for registration of a case. That can only be considered after registration of the case.”
  • Remedy on refusal to register FIR:
    • If the police refuses or fails to register or lodge a FIR upon receipt of information, the informant should intimate the superior police officials Le. Superintendent of Police.
    • In the event of failure on the part of superior police officials to ledge FIR, the informant can approach the Court under section 156(3) of Criminal Procedure Code, 1973 seeking directions from the Court to the police to investigate the matter.

DRAFT OF FIR
To,
The Officer-in-Charge —-                                                                                                    Date
(Name of the Police Station)

Sir,
This is to inform you that my cycle has been stolen from the cycle stand in the daily market last evening.

Last evening, before I went to the market, I placed my green model Hero Cycle in the cycle stand No. 1 as usual. I had locked the cycle. The cycle bears the No.___ I had bought it only a month ago and it was almost new. The cycle had a full gear case, a carrier and a side basket. When such mishap occurred I was buying vegetables in the market. I asked everybody who were present there about the cycle. It was all in vain.

I request you to kindly register a case of theft and initiate the necessary investigation to recover the stolen cycle.

Yours faithfully,
__________ (Your Name)

Question 48.
Vijay is holding 10,000 shares of Kamal Ltd., a listed company, in physical form. The price quoted for the share in stock exchange is 1,100. Due to change of house, Vijay could not locate the shares. He wrote to the Company Secretary of Kamal Ltd. for issue of duplicate share certificate. The company asked the following documents from Vijay to consider the request for issue of duplicate share certificate:
(a) A copy of FIR;
(b) An affidavit on a stamp paper of 10;
(c) An indemnity bond on a stamp paper of 300 to be executed by the shareholder to the effect that in case the company suffers any loss due to issue of duplicate share certificate, the shareholder will indemnify the company to make the loss good; and
(d) Since the value is large, a surety bond from a person other than the relative of the shareholder to make the loss good in case of any eventuality.

Draft
I. An FIR;
II. An affidavit;
III. An indemnity bond; and
IV. Surety bond on the basis of facts given above. You may imagine the facts/data wherever necessary.
Answer:
I. FIR
To,
The Officer-in- charge

Name of police station                                                                                                            Date
Sir,

This is to inform you that I have lost the physical shares certificate of Kamal Ltd, representing 10,000 shares at my house. The same was lost due to change of house. The details are mentioned below:

Pleadings – Drafting, Pleadings and Appearances Important Questions 3

I request you to register an FIR and provide a copy of the same.

Yours Faithfully,
Vijay
S/o…
R/o…
Contact No….

II. Affidavit

AFFIDAVIT
(on stamp paper of ₹ 10/-)

I Vijay…., S/o……… R/o…………………am a shareholder of Kamal Ltd. and hold 10,000/- equity shares of the company as detailed below:

Pleadings – Drafting, Pleadings and Appearances Important Questions 4

I do solemnly and sincerely swear and state as under:
1. That the said share certificates, covering the said shares have been lost and it is not in my possession.
2. That FIR has been registered in ………. P.S vide No. ………. dated………..
3. That I have not transferred the said shares or any of them in favour of any other person and I have not executed any instrument of transfer for the said share(s) in favour of any person.
4. That I have not created any charge or encumbrance on the said share in favour of any person.
5. That I have filed a request to the company viz. Kamal Ltd. to issue duplicate certificate(s) for the said shares.

DEPONENT

VERIFICATION

I, Vijay, S/o.. R/o… do hereby solemnly affirm and depose that the facts are true to my knowledge and that I have not suppressed any material fact.

DEPONENT

III. Indemnity Bond

Indemnity Bond for Duplicate Share Certificate

1. I am shareholder of Kamal Ltd., having its Registered Office at ………… and hold 10,000 equity shares of the face value ₹ …… each, as per the details below:
Pleadings – Drafting, Pleadings and Appearances Important Questions 5
2. The share certificate in respect of the said shares had/have been lost. The said shares were not pledged nor I have assigned the interest in the same to anyone. I am the sole and absolute owner of the said shares.
3. I have therefore requested the company for issue of duplicate share
certificates in lieu of the original shares covered under Folio No. _________ and bearing Certificate Nos. ____________ held by me.
4. In consideration of the company so doing, I do hereby agree to indemnify the Company against any claims, charges, costs, damages and loses which the said company, may sustain, incur or be liable in consequences or in relation to issuance of duplicate share certificate(s)
at my request.
5. I further undertake to surrender the said share certificate(s) to the company if and when the same are found at a later date.
In witness whereof I signed this bond on …………… in the presence of:
Name and address of Witness

Name and address of Vijay

Signature of the Witness

Signature of the Vijay

IV. Surety Bond
THIS SURETY BOND made on ……….. by Sri. X Son of Vijay, R/o …………. (here in after
called the “Surety”) on one part and Shri Vijay, Son of…………… R/o……………… (hereinafter called the “Principal”)on the other part.

WHEREAS the principal has lost the physical shares certificate of Kamal Ltd, representing ₹ 11000/- shares at his house. The same was lost due to change of house. The details are mentioned below:

Pleadings – Drafting, Pleadings and Appearances Important Questions 6

1. The principle has therefore requested the company, Kamal Ltd. for issue of duplicate share certificates. The price quoted for the share in stock exchange is ₹ 1100/-. Since the value is large, a surety bond was requested by the company.

2. Therefore in consideration of the company issuing duplicate shares, the surety hereby agree to Indemnify the Company against any claims, charges, costs, damages and loses which the said company, may sustain, incur or be liable in consequences or in relation to issuance of duplicate share certificate at the request of principle.

IN WITNESS WHEREOF, the parties hereto have hereunto set and subscribed their respective hands and seals the day, month and the year first above written.
Signed, sealed and delivered in the presence of:
Witness
1.                                                                                                                                   Surety
2.                                                                                                                                   Principal

Drafting, Pleadings and Appearances Notes