DRAFTING PLEADING AND CONVEYANCING

FUNDAMENTAL RULES OF PLEADING

MODULE 1

MEANING: PLEADING AND CONVEYANCING: Drafting, Pleading and Conveyancing are the
three common terms used in the law sector. Drafting refers to the act of preparing the legal
document like agreements, contracts and deeds. In drafting besides seeking right words, the
draftsman seeks the right concepts. Conveyancing refers to the transferring of a real property to its
new owner by means of deeds and whereas pleading refers to a legal document filed in a law suit.
This can be a document pertaining to the initiation of litigation or a document in response to this
initiation.
Meaning of pleading: The art of drafting the pleading has not yet fully developed in spite of the
increase in the civil litigation. Many dead sure win cases drag on for years in the Courts only
because of the faulty drafting. Hence it is important to understand that pleading is an art, of course,
and art which requires not only technical and linguistic skill but also an expert knowledge of the
law on the given point brought before a lawyer. Even the experienced lawyers and attorneys are not
infallible and sometimes they also make mistakes.
However, in the matter of pleading longer experience and great linguistic acumen are both essential
ingredients and ultimately what matters is how clearly and systematically have the facts been
presented before the court of law.
According to Lord Halsbury – “Where system of pleadings may exist, the sole object of it is that
each side may be fully alive to the questions that are brought to be argued in order that they have an
opportunity of bringing forward such evidence as may be appropriate to the issue”.
When a person comes to seek the assistance of court of law in any matter, he has to prepare a
statement of his claims, and the facts on which such claims are founded. Such statements fully
drawn up, setting out all contentions are called “pleadings”. Thus pleadings are the foundations of
all sort litigation.
No judicial system in the world can do justice in any matter unless and until the court of justice is
fully aware as to the claims and contentions of the plaintiff and of the counter claims and defences
of the defendant. There can be Civil Pleadings like Plaint, Interlocutory Applications, Execution
Petition, Affidavits etc. and Criminal Pleadings like Complaint, Bail
Application etc.
When the civil codes came to be drafted, the principles of pleadings were also given statutory form.
Vide Order VI Rule 1 “pleading” – shall mean plaint or written statement. The elaborated definition
of pleading is that pleadings are statements, written, drawn up and filed by each party to a case,
stating what his contentions will be at the trial and giving all such details as his opponent needs to
know in order to prepare his reply for the same.

Meaning of conveyancing: Conveyancing is an art of drafting deeds and documents whereby any
title, right or interest in an immovable property is transferred from one person to another. Such
person can be natural or artificial i.e. Corporate, the Company, the Society or the Corporate Sole as
the case may be.
Conveyancing is based on law and legal principles which have been evolved in the sphere of
conveyancing over years or rather centuries. The objective of Conveyancing cannot be possible
without a thorough knowledge and understanding of the legal provisions applicable on the subject
matter of transfer of property or right therein.
In the present world, the scope of conveyancing has become very wide and extensive in use and
advantage to different fields of business, profession and industries. Drafting document is now a
legal task and not merely a technical one. Different types of deed require knowledge of different
types of law on which those deeds are based.
In India the forms of conveyancing are based on the present English forms. No legislation in India
has been ever passed on the law of conveyancing. Both in India and England, there are two types of
deeds namely – “Deed Poll” and “Indenture”. The deed poll is a document which is executed
unilaterally in the first person like bonds, power of attorney and will etc. The Indenture is a
document which is executed bilaterally or consist of multilateral deed like mortgages, sale deed,
gifts and lease etc.

PLAINT STRUCTURE:
 IN THE CIVIL COURT AT SAKET NAGAR, DELHI

Suit No. 166 of 2020

Abhinav Sharma

B104, Malviya Nagar, New Delhi ……Plaintiff

V.

Sharmistha Sharma

Malviya Nagar, New Delhi ……Defendant

Suit for the Injunction On the use of Unused land as a dumping area

The Plaintiff submitted as under:

1. The plaintiff is a resident of Malviya Nagar, New Delhi, and the Defendant is a neighbor of
the plaintiff.

2. Unused land is near the house of the plaintiff, which is used by the resident of B106 i.e.
defendant as a dumping yard for the waste material of her house.

3. That the Defendant was all the time throwing the waste material in that unused land near the
house of the plaintiff.

4. Since a very long time of being used as a dumping yard by the defendant, there is a
collection of huge waste material that leads to the health problem of the plaintiff.

5. That the court has jurisdiction on this matter to fix an injunction on the use of unused land
as a dumping area as it restricts his free movement and also leads to affect health due to
defendant action.
Prayer:

It is Prayed that a decree for the injunction is passed in favor of the plaintiff against the defendant.
And some other relief as the court thinks fit.

Place: Malviya Nagar Signature

Date: 04/02/2020 (Abhinav Sharma)

Verification:

In the above-named plaintiff do hereby verify that the contents of the paras no. 1,2,3 and 4 are true
to my knowledge and the contents of remaining paras are according to legal advice from my
advocate which I believe to be true.

Place: Malviya Nagar s/d of Plaintiff

Date: 04/02/2020 (Abhinav Sharma)

WRITTEN STATEMENT: The Code of Civil Procedure does not provide a clear definition for a
‘written statement.’ In simple terms, it is a written defence statement submitted by the defendant,
addressing all the important points raised by the plaintiff in their complaint.

This statement includes objections to the plaintiff’s claims and can also introduce new facts if
needed. Think of it as the defendant’s version of events, just as the plaintiff’s complaint represents
their side. The rules for the written statement are outlined in Order VIII of the Code of Civil
Procedure.
In the written statement, the defendant should present their case succinctly. It should only contain
the facts that support their defence, not the evidence to prove those facts.

A written statement is a document filed by the defendant in a legal case. This document can be
submitted by the defendant personally or through an authorised representative, but it cannot be filed
by someone who is not directly involved in the legal dispute.

In situations where there are multiple defendants in a case, they can choose to file a single, common
written statement signed by all of them. Alternatively, at least one of the defendants, who is
knowledgeable about the facts of the case, can verify and submit the written statement on behalf of
all the defendants. This allows for a unified response from the defendants in the case.

When Should a Written Statement Be Filed?

Order VIII Rule 1 sets the timeframe for the defendant to submit a written statement. Here’s a
breakdown:

Initial Deadline: The defendant must file their written statement within thirty days from when they
receive the legal summons.

Extension Possibility: In certain situations, this thirty-day period can be extended, but not beyond
ninety days from the date of the court serving the summons. However, any extension must be
supported by written reasons.

Commercial Disputes: In commercial disputes, the defendant is still initially given thirty days to
file their written statement after receiving the summons. However, the court can extend this period
for up to one hundred and twenty days from the date of the summons. Once again, the court must
record its reasons for the extension and the defendant may be required to cover any associated costs.
If the defendant misses these deadlines, they lose the right to file a written statement.
Late Submission: If the defendant cannot meet the prescribed time frame, they should file the
written statement as soon as possible along with an application requesting the court’s permission for
the delay. However, this application should have a valid reason for the delay, one that was beyond
the defendant’s control. If the court finds the reason acceptable, it will accept the application and
proceed with the case; otherwise, it will reject it.

In the case of Mohammed Yusuf v. Faij Mohammad and Ors. (2009), the defendant filed a
written statement three years after the prescribed deadline and requested the court to condone the
delay. However, the court initially rejected this application. Later, the Allahabad High Court,
responding to a writ petition filed by the defendant challenging the rejection, allowed the
application. Nevertheless, the Supreme Court disagreed with the High Court’s decision.

The Supreme Court ruled that the High Court should not have intervened because there was no clear
failure of justice or a glaring error in the case record. The Supreme Court emphasised that extending
the time beyond the initial thirty-day period should not be automatic. Courts should exercise caution
and consider whether sufficient and valid reasons exist to justify such an extension. Granting
extensions indiscriminately could undermine the pursuit of justice.

AFFIDAVIT:

VERIFICATION OF PLEADING: Order VI of Civil Procedure Code (CPC) deals with pleadings
in general. Order VII deals with plaint and Order VIII deals with written statement. Order VI, Rule
1 defines pleadings as follows: 1. Pleading: Pleading shall mean plaint or written statement.
Pleading is nothing but what a party to a suit pleads in support of his contention or case. A Plaintiff
pleads is called Plaint, and what defendants plead is called Written Statement. Rule 15 of Order VI
of CPC provides verification of pleadings as under-
(1) Save as otherwise provided by any law for the time being in force, every pleading shall be
verified at the foot by the party or by one of the parties pleading or by some other persons
proved to the satisfaction of the court to be acquainted with the facts of the case.
(2) The person verifying shall 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.
(3) The verification shall be signed by the person making it and shall state the date on which and the
place at which it was signed. (4) The person verifying the pleading shall also furnish an affidavit in
support of his pleadings. Every pleading must be verified and signed by the person who makes the
pleading. He should also furnish an affidavit in support of his pleadings. For any reason, if the
deponent cannot verify and sign, it can be done by his authorized agent. Verification is nothing but
affirmation that the facts mentioned in the plaint/written statement are true. It is submitted that
special amendments were made in CPC through the Commercial Courts Act, 2015 (Earlier known
as the Commercial Courts, Commercial Division and Commercial Appellate Division of High
Courts Act, 2015). A special amendment was made in respect of commercial dispute of a specified
value, for verification of pleadings. In its application to any suit in respect of a commercial dispute
of a specified value, in order VI, after rule 15, insert the following rule namely-

OBJECT OF VERIFICATION: Rule 15: Verification of pleadings

(1) Save as otherwise provided by any law for the time being in force, every pleading shall 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.

(2) The person verifying shall 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.

(3) The verification shall be signed by the person making it and shall state the date on which and the
place at which it was signed.

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

AMENDMENT OF PLEADINGS: Order VI Rule 17 Code of Civil Procedure :

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.”

In which stage of civil suit pleading can be amended?

The Provision related to Amendment of Pleadings gives power to the civil court to allow parties to
alter, amend or modify the pleadings at any stage of proceedings1. Provision for Amendment of
pleadings has been stated in Order 6 Rule 17 of the Code of civil procedure. But the court will allow
amendment only if this amendment is necessary to determine the controversy between the parties.
The purpose of this provision is to promote ends of justice and not to defeat the law.

The Proviso of Order 6 Rule 17 states that court will not allow application of amendment after the
trial has been commenced unless court comes to the conclusion that party did not raise the relevant
facts before the commencement of the trial. This proviso gives discretionary power to the court to
decide on the application of pleadings after the commencement of the Trial. An institution of the
suit is necessary for applying for amendment of pleadings.

This provision was deleted by the Civil Procedure (Amendment) Code, 1999. This omission was
made to ensure consistency in new changes in the civil code. But later, it was restored by the Civil
Procedure (Amendment) Code, 2000. This amendment has given power to the court to allow
application of the pleadings with some limitation.

In the case of Gurdial Singh v. Raj Kumar Aneja4, the court stated that any person who is applying
for the amendment of pleadings should state that what is to be altered, amended or modified in the
original pleadings.

In the case of the Rajesh Kumar Aggarwal & Ors v. K.K. Modi & Ors5, the court stated that
Amendment of pleadings consists of two parts :
1. In the first part, the word ‘may’ gives discretionary power to the court to allow or disallow
application of pleadings.

2. In the second part, the word ‘shall’ gives obligatory direction to the civil court to allow the
application of pleadings if this amendment is necessary for the purpose of determining the
real questions in controversy between the parties.