DRAFTING

1. Drafting may be defined as the synthesis of law and fact in a language form.
2. Legal drafting is the crystallization and expression in definitive form of a legal right, privilege,
function, duty, or status.
3. It is the development and preparation of legal instruments such as constitutions, statutes,
regulations, ordinances, contracts, wills, conveyances, indentures, trusts and leases, etc.
4. The process of drafting operates in two planes: the conceptual and the verbal. Besides
seeking the right words,
5. the draftsman seeks the right concepts. Drafting, therefore, is first thinking and second
composing.
6. d. Drafting of legal documents requires, as a pre-requisite, the skills of
7. a draftsman, the knowledge of facts and law so as to put facts in a systematised sequence to
give a correct
8. presentation of legal status, privileges, rights and duties of the parties, and obligations
arising out of mutual
9. understanding or prevalent customs or usages or social norms or business conventions, as
the case may be,
10. terms and conditions, breaches and remedies etc

1. Clarity and Precision: Legal documents must be clear and precise to avoid ambiguity. Use
unambiguous language and avoid vague terms.
2. Consistency: Ensure consistency in terminology and format throughout the document to
prevent confusion.
3. Hierarchy of Information: Organize the document logically, with headings and subheadings
to guide the reader through the content.
4. Use of Definitions: Define key terms at the beginning of the document to establish their
meanings and ensure consistency in interpretation.
5. Avoidance of Ambiguity: Drafters should avoid ambiguous language or provisions that could
be interpreted in multiple ways. Ambiguity can lead to disputes and uncertainty.
6. Legislative Intent: Consider the purpose and intent behind the document when drafting its
provisions. The language should reflect the legislative or contractual objectives.
7. Compliance with Legal Requirements: Ensure that the document complies with relevant
laws, regulations, and legal principles. Failure to do so can render the document
unenforceable.
8. Use of Standard Language and Forms: When applicable, use standard language and forms to
ensure consistency and compliance with legal conventions.
9. Incorporation by Reference: Instead of restating lengthy provisions, incorporate them by
reference to avoid redundancy and improve clarity.
10. Plain Language: While legal documents often involve complex concepts, strive to use plain
language whenever possible to enhance understanding, especially for non-legal
professionals.
11. Technical Accuracy: Ensure technical accuracy in the use of legal terminology and concepts.
Errors or inaccuracies can undermine the document's validity and enforceability.
 12. Consideration of Jurisdictional Differences: Take into account jurisdictional differences when
drafting legal documents to ensure compliance with local laws and customs.
13. Attention to Detail: Pay close attention to grammar, punctuation, and formatting to enhance
readability and professionalism.
14. Revision and Review: Legal drafting often involves multiple revisions and reviews to eliminate
errors, improve clarity, and ensure consistency with the drafter's intentions.
15. Clarity in Remedies and Enforcement: Clearly specify the remedies available in case of breach
and the procedures for enforcement to avoid confusion and disputes

PLEADING
Pleadings are the statement of facts in writing and filed in a court by each party to the case stating
therein what his contention shall be at the trial and giving all such details as his opponent will need
to know in order to prepare his case in answer.

pleadings in a suit as defined under Order 6, rule 1 of the Code of Civil Procedure, it says that
pleading means “Plaint or Written Statement”.

The plaint and written statement are defined as:

(a) Plaint: A statement of claims, called the “plaint” in which the plaintiff sets out his cause of action
with all necessary particulars; and

(b) Written Statement: A statement of defences, called the “written statement” which the

defendant deals with every material fact alleged by the Plaintiff in the plaint and also sets any

new facts which tells in his favour, adding such objection as he wishes to take to the claim.

Function and Object of Pleadings

The object of pleadings is to assist the court and the parties to the dispute in its adjudication.

Stable. J., in Pinson v. Lloyds Bank Ltd., (1941) 2 K.B. 72, has expressed the function of

pleading in the following words

INITIATION OF SUIT FOR ADJUDICATION This enables the court to understand the issues in dispute
and facilitates the orderly presentation evidence.

Notice: Pleadings provide notice to the opposing party of the claims or defenses being asserted
against them. This allows parties to prepare their responses and build their cases accordingly The
object of pleading is to give a fair notice to each party of what the opponent’s case is to;ascertain
with precision, the points on which the parties agree and those on which they differand thus to bring
the parties to a definite issue

Formulation of Issues: Pleadings help in the formulation of precise and specific issues that need to
be adjudicated by the court. The issues framed based on the pleadings guide the subsequent stages
of the litigation, including evidence gathering and trial proceedings.

Admissibility of Evidence: Pleadings define the scope of admissible evidence by outlining the specific
claims and defenses at issue. Evidence that is relevant to the pleadings is generally admissible, while
evidence pertaining to matters outside the scope of the pleadings may be excluded.
Determination of Jurisdiction: Pleadings assist the court in determining its jurisdiction over the
subject matter and the parties involved in the lawsuit. Jurisdictional allegations in the pleadings help
establish whether the court has authority to hear and decide the case.

Basis for Judgment: Pleadings provide the foundation for the court's judgment or decision in the
case. The court's ruling is typically based on the issues framed by the pleadings and the evidence
presented in support of those issues.

Fundamental Rules of Pleadings

The English law of pleading has got four fundamental rules of pleading upon which Order 6

of the Code of Civil Procedure is based which are set out as under:

1. Every pleading must state facts and not law.

2. It must state all material facts and material facts only.

3. It must state only the facts on which the party’s pleading relies and not the evidence by

which they are to be proved; and

4. It must state such facts concisely, but with precision and certainty.

1) Facts, not law

The first fundamental rule is that neither provisions of law nor conclusions of law should be

alleged in a pleading. The pleading should be confined to facts only and it is for the judge to draw
such interference from those facts as are permissible under the law of which he is bound

to take judicial notice.

The reason for not mentioning the law in the pleading is that it is the duty of the court to find

out and examine all plea of Law that may be applicable to the facts of the case. However, the

parties can make their submission about law any time. For example, the non maintainability

of the suit which is a point of law can be urged although no specific plea has been raised in

the pleading. The rule that every pleading must state facts and not law or an interference of

law has got following exceptions:

(a) Foreign Laws: The courts do not take any judicial notice of foreign laws and hence they

must be pleaded as facts. The status of the foreign country intended to be relied upon should

be set-forth as substantially as any other facts. .

(b) Mixed question of Laws and facts: Where a question is one of mixed law and fact, it is

permissible and proper to plead both the facts and the legal conclusion. For instance, the

defendant may say that the suit is barred by the law of limitation, or he may say he is entitled

to set off after narrating the facts on which he bases his conclusions.
(c) Condition precedent: The Code of Civil Procedure provides that any condition precedent

the performance of which is intended to be contested shall be distinctly specified in the

pleading of the plaintiff or defendant (Order 6 r.6 of C.P.C.), as for instance, the legality of the

notice under section 80, C.P.C.

(d) Custom and Usage of Trades: Custom and usage of any trade and business shall be

pleaded like any other facts, if a party wants to rely on them. But a custom repeatedly brought

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before Court and recognised by them regularly is deemed to have acquired the force of law

and need not be pleaded. For example, an occupancy tenant is entitled by local custom and

usage to cut trees growing upon his holding it is not necessary for the occupancy tenant to

plead this custom, if he wishes to rely on this right to cut the trees. Similarly, a party who

wishes to rely on the usage of a particular trade and business and if it is at variance with any

provision of the Contract Act, he must not plead the usage of such trade and business with its

detailed incident. If it is not pleaded, no evidence to prove it shall be admitted

(2) Material facts

The second fundamental rule of pleading is that every pleading shall contain only a statement

of material facts on which the party pleading relies for his claim or defence. This rule has

been enunciated in Order 6, Rule 2 of the Code of Civil Procedure. The omission to observe

this rule may increase the difficulty in the Court’s task of ascertaining the rights of the parties.

Now, the question arises what are material facts?

The facts which are essential to the plaintiff’s cause of action or to the defendant’s defence. It

can be said that fact is material for the pleading of a party which he is bound to prove at the

trial unless admitted by the other party before he can succeed in his claim or defence. If one is

in reasonable doubt about a particular fact as a material fact it is better for him to plead that

fact rather than omit it because unless a fact is pleaded he shall not be allowed to prove it at

the hearing of the suit. A plea of fraud and misrepresentation in a suit must set forth full

particulars of fraud and misrepresentation, because these particulars constitute material facts

unless raised by the plaintiff or the defendant in his pleading, he will not be allowed to prove

at the trial.

Facts, Not Evidence

The third fundamental rule of pleading has been laid down by Order 6, rule 2 of the Code of
Civil Procedure. It says that every pleading must contain a statement of material facts but not

the evidence by which they are to be proved. The material facts on which a party relies are

called Facta Prabanda, i.e. the facts to be proved, and they should be stated in the pleadings.

The evidence or facts by which Facta Probanda are to be proved are called Facts Probantia,

and they are not to be stated in the pleadings. Facta Probanda are not the facts in issue but

only relevant facts which will be proved at the trial in order to established facts in issue. For

instance, in a suit of damages for malicious prosecution the plaintiff should only allege in the

plaint that the defendant was actuated by malice in prosecuting him. He must not allege that

he had previously given evidence against the defendant and the defendant had vowed to take

revenge

(4) Concise Form with Precision and Certainty

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The material facts must be stated in a summary form, succinctly and in a strict chronological

order. All unnecessary allegations and their details should be omitted in order to attain brevity

in pleadings. Pleading is not a place for fine writing but only assertion of hard facts. It is

desirable to go straight to the point and state fact, boldly, clearly and concisely and to avoid

all paraphrasing and all circumlocutions. As far as possible an active voice should be

preferred to passive in pleading. The same person or thing should be called by the same name

throughout the pleading. The pleading shall be divided into paragraph numbered

consecutively. Dates sums and numbers shall be expressed in figures, even though the

pleading should be concise, it should never be obscure. It should be both concise, as well as

precise. The parties cannot change the case and get the relief.

A good pleader should bear in mind the following points in relation to a pleading:

i. Describe the names and places accurately and spell them correctly and adopt the

same spelling throughout.

ii. One should always avoid the use of pronoun as ‘He’, ‘She’, ‘This’, or ‘That’. The

plaintiff or the defendant should not be addressed by their names at some place and at some

place by the word ‘Plaintiff’ and ‘ defendant’, call them throughout your pleading by the

expression ‘the plaintiff’ and ‘the defendant’ as the case may be. Where one has to distinguish
between two or more plaintiffs or defendants, they can be referred to as ‘the plaintiff

Ramashankar’ or ‘the defendant-Hariharan’ as the case may be.

iii. A lawyer should allege all facts boldly and plainly. He should use the language of the

document or the act itself; and he should not invent his own language however correct it may

be, e.g. of a policy becomes void in case, “the assured shall die of his own hand.” Now, inthis

case while drafting the pleading instead “ the assured killed himself” or he committed

suicide,” plead that “the assured died of his own hand.”

iv. A lawyer should allege all facts boldly and plainly. He should avoid ifs and buts. As

far as possible complex sentences should also be avoided. Facts should not be repeated.

Pleading should be divided into separate paragraphs and as far as possible only one fact

should be contained by one paragraph embodying all necessary particulars in the pleading.

v. Every pleading shall be signed by the party and his advocate and, if the party is

unable to sign the pleading it may be signed by this agent.

vi. Every pleading shall be verified by the party or the parties. Verification can also be

made by any other person if acquainted with the facts of pleadings. False verification is an

offence punishable by the Indian Penal Code.

vii. In cases where a corporation is a party, pleading may be verified by Secretary or by

the director or by any other principal officer of that corporation who is able to depose the

facts of the case. In verification clause one should denote according to the numbers of

paragraph what he verified outy of his own knowledge and what he verified upon the

information received and believed to be true

AFFIDAVIT
affidavit" is not defined in the Code, it generally means "a sworn statement in writing made
especially under oath or on affirmation before an authorised officer or Magistrate." An affidavit is, to
put it simply, a written declaration of facts that is sworn in front of a witness with the power to
conduct oaths. Every affidavit must be written and should only include facts, not conclusions.

Essentials of Affidavit:

It must be a statement made by an individual.

It must be related to facts.

It must be in written form.

It must be written in the first person and sworn or confirmed in front of a magistrate or another
authorised official.

Contents of Affidavit

An affidavit should only contain information that the deponent can personally attest to. However, the
deponent is permitted to mention such facts in interlocutory applications that are founded on belief
under Rule 3(1) of Order 19.

A sense of responsibility should be shown when filing affidavits on behalf of the state.

Conflicting affidavits submitted by the same officer are inappropriate; the government spokesperson
exhibits complete neglect for the truth.

Verification of Affidavit

An affidavit has to be validated. The purpose of verification is to hold the deponent accountable for
the allegations made and to determine whether the deponent's claims are true and authentic.

According to Section 3 of The Evidence Act, affidavits are considered "evidence." The Supreme Court,
however, held that an affidavit can only be used as evidence if the Court so orders for adequate
reasons (Khandesh Spg & Wvg Mills CO. Ltd. Vs Rashtriya Girni Kamgar Sangh). Therefore, without a
particular court order, an affidavit cannot typically be used as evidence.

The Supreme court in case of Amar Singh v. Union of India and others, has given instructions to the
courts registry to carefully review all affidavits, petitions, and applications and reject any that do not
follow Order XI the Supreme Court Rules and Order XIX of the Code of Civil Procedure. In this ruling,
the Supreme Court emphasised the significance of affidavits and analysed numerous judicial rulings
on the subject.

In case of Virendra Kumar Saklecha v. Jagjiwan and others, the court ruled that failure to provide
information will show that the election petitioner failed to identify the information's source at the
earliest opportunity. The significance of revealing such a source is to notify the opposing party and to
give them a chance to verify the accuracy and authenticity of the information source.

Filing of False Affidavit

A person intentionally swears false and irrelevant statements to be true, correct, and accurate in an
affidavit and signs it with the intent to deceive the Court. This is known as a false affidavit. This
significantly slows down the legal process and is a blatant abuse of it. Filing of false affidavit is an
offence under Sections 191, 193, 195, and 199 of the Indian Penal Code.

The person who submits a fraudulent affidavit may face criminal contempt of court charges. If a
person files false affidavit in a situation when a court has ordered a party to do so is punished under
Section 2(c) of the 1971 Contempt of the Courts Act. It is punishable by a term of up to six months

Section 200 of the Indian Penal Code allows a private compl

VERIFICATION
Order VI Rule 15 CPC deals with “verification” of pleadings. As per Order VI Rule 1 a “Pleading” shall
mean plaint or a written statement. Order IV Rule 1 states that every suit shall be instituted by
presenting a plaint and as per Rule 2 of Order IV, every plaint shall comply the rules contained in
Order VI and Order VII. Rules as provided under Order VI deal with the manner in which Pleadings
are to be made, which particulars are necessary to be disclosed, whom to sign the pleadings and
how are the pleadings to be verified. Order VI Rule 15 lays down the procedure in which the
pleadings are to be verified.

Features of Order VI Rule 15 CPC

Order VI Rule 15 CPC lays down that a pleading must be verified in the following manner:

i) Every pleading compulsorily needs to be verified at the foot by the party or by one of the
parties pleading or by some other person proved to the satisfaction of the court to be acquainted
with the facts of the case.

ii) The person who verifies a pleading needs to specify, by reference to the numbered
paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon
information received and believed to be true.

iii) The date on which such pleading is verified needs to be stated

iv) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.

The purpose of the Verification of the pleadings is to fix responsibility for the averments and
allegations made either in the Plaint or Written statement and to fix the responsibility of the
averments and allegations made either in the plaint or written statement. It is expected from the
author of a pleading to clearly state that which portion of the pleading is as per the knowledge of the
said person and which is the portion he believes to be correct. The later portion is generally with the
legal information which a person receives from the lawyer representing him and the same is
incorporated in the pleading such as; pleadings made in relation to cause of action for approaching
the Courts, the pleadings made in respect of valuation of suit, pleadings on jurisdiction of court etc.
It is the former, with which the objection is raised frequently in various litigations.

Meaning of Amendment of Pleadings CPC

Amendment of pleadings means making changes to the formal written statements submitted by
parties in a court case. In India, according to the Code of Civil Procedure (CPC), parties can make
these changes during a trial with the court’s permission. The purpose of amending pleadings is to
make sure that the real issues in the case are addressed and that justice is served. However, there
are conditions for making these changes, such as not causing harm to the other party and following
the time limits set by the court.

Order VI, Rule 17 of the Code of Civil Procedure deals with amending pleadings. Pleadings are the
statements made by the Plaintiff or the Defendant in their respective claims and responses. An
amendment can involve altering, modifying, or deleting something in these statements.

Order VI Rule 17 reads as under:

“17. Amendment of pleadings – The Court may at any stage of the proceedings allow either party to
alter or amend his pleadings in such manner and on such terms as may be just and all such
amendments shall be made as may be necessary for the purpose of determining the real questions in
controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless
the Court comes to the conclusion that in spite of due diligence, the party could not have raised the
matter before the commencement of trial.”

Importance of Amendment of Pleadings

Amending pleadings is crucial in the Indian legal system, especially in civil cases. Pleadings are formal
written statements that parties use to present their case to the court, including facts, issues and legal
arguments. Allowing amendments to these statements is essential for several reasons:

Ensuring Justice: Amendment of pleadings helps ensure that justice is served. It allows parties to
correct errors or omissions in their defence, making their case presentation more effective. It also
helps address new issues that may arise during the trial, ensuring that the real matters in dispute are
properly addressed.

Resolving Disputes: Amendments to pleadings help parties identify and resolve key issues in a
dispute more effectively. This leads to more accurate and fair dispute resolution, saving time,
reducing the need for additional evidence or hearings and promoting settlements between parties.

Avoiding Delays: Allowing parties to amend their pleadings before the trial begins helps prevent
delays. By addressing problems or omissions early on, the risk of delays due to introducing new
evidence or arguments is reduced. This speeds up case resolution, lightens the burden on the justice
system and improves efficiency.

Promoting Fairness: Amending pleadings promotes fairness in the justice system. It prevents one
party from gaining an unfair advantage over the other by allowing both sides an equal opportunity to
present their case.

Conditions for Amending Pleadings in CPC

While amending pleadings is permitted under the Indian Code of Civil Procedure (CPC), specific
conditions must be met, including:

Necessity for Dispute Resolution: The proposed amendment must be necessary to resolve the
dispute between the parties. The court assesses whether the change is essential to ensure the
proper resolution of the issues in dispute and the delivery of justice.

Absence of Prejudice to the Other Party: Amendments should not unfairly prejudice the other party.
The court examines whether the proposed change would harm the opposing party through delays,
increased costs, or substantive alterations to the case.
Good Faith: The requested amendment must be made in good faith. The court considers whether the
party seeking the change has a legitimate reason and isn’t attempting to deceive the court or gain an
unfair advantage.

Compliance with Time Limits: Proposed amendments must adhere to any court-imposed deadlines.
Parties must file these changes within the timeframes specified by the court for pleading
submissions.

What Can Be Amended in Pleadings

In legal proceedings in India, there are specific aspects of pleadings that can be amended:

Plaint Filed by the Plaintiff: The plaintiff, who initiates the legal action, can amend the contents of the
plaint, which is the formal document outlining their claims and allegations.

Written Statements Filed by the Defendant: The defendant, in response to the plaintiff’s claims, can
amend their written statements. These statements present the defendant’s version of events and
defenses.

Conditions for Granting Amendment of Pleadings

To obtain permission for amending pleadings, certain conditions must be met:

No Injustice to the Other Party: The amendment should not cause unfair harm or prejudice to the
opposing party.

Necessary for Determining Real Controversy: The proposed amendment must be necessary to
determine the actual dispute be

tween the parties