DRAFTING PLEADING AND CONVEYANCING EBOOK PDF

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Important Questions Suggested Reading. The art of drafting the pleadings has not yet fully developed in spite of the increase in the civil litigation. Because of this absence of rigorous training, the young lawyers often indulge in prolixity rather than. Many dead-sure-win cases drag on for years in the courts only because of faulty. Irrelevant matters, unnecessary details are often included and the facts placed before the lawyer.

The result is that the martial facts are often mixed up with inessential matter. According to Lord Halsbury - "Where system of pleading may exist, the sole object of it is that each side may.

Pleading is a n art, of course, and art which requires not only technical and linguistic sk ill but also an expert. Even experienced la wyers and attorneys. However, in the matter of pleadings longer. What ultim ately matters is how. It is a matter of common knowledge that when a person comes to seek the assistance of the court of law in. Such statem ents fully drawn up, setting out all contentions, are called "pleadings".

Th us pleadings are the. In the ancien t times when the king was the fountainhead of all justice, a petitioner used to appear before the. After such o ral hearing, the king. There used to be same sort of cross examination or cross questioning of the parties by the. Thereafter, the decision was announced.

There was hardly any system of written statements;. The king and his courtiers kept on what may be. Perhaps only r. With the passage of time, judicial system underwent a change. The administration at justice was separated from the executive and assigned to the court of law.

Complexity of resulted in enormous litigation, and oral hearing of the ancient times became almost impossible. Scribes used to keep records of all the proceedings Gradually this procedure was also abandoned and the litigants were allowed to bring their claims and contetions duly drawn up to fie them before the Honb6e courts.

When this change exactly happened, it is difficult to say. Experience was a better teacher; and the changes in court procedure took place not only in the light of the past experience but also in the face of expediency.

Written proceedings. By the turn of 19th century the procedure of pleadings has become fairly elaborate and systematized. 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. Mogha has elaborated this definition when he remarked 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 case in answer".

The document stating the cause of action and other necessary details and particulars in support of the claim. The defence statement containing all material facts and other details. The written statement is filed by the defendant as an. Pleadings are, therefore,. Any material omission in the pleading. In some cases the court ma y allow amendment. This can be done unde r order VI Rule 17 of.

Civil Procedu re Code. Another case of departure is where a party pleads for set-off. Pleadings co ntain material facts, contentions and claim of the plaintiff, and the materia l facts, contentions,. There may also be counter claim s by the defendant. While the for mer is permitted to be pleaded by the courts, the latter is not, but when the. Object of Pl eadings. The whole o bject of pleading is to give a fair notice to each party of what the opponent 's case is.

It is necessary for the p arties to know each. Pleadings al so eliminate the element of surprise during the trial, besides eradicatin g irrelevant matters. The facts admitted by any parties need not be pursued or proved. Thus the. There is another advantage of the pleadings.

The parties come to know before hand what points the opposite party will raise at the trial, and thus they are a prepared to meet them and are not taken by surprise, which would certainly be the case if there were no obligatory rules of pleadings whereby the parties are compelled to lay bare there cases before the opposite party prior to the commencement of the actual trial.

On the basis of above discussion we deduce the following fundamental rules of pleading, which also have been incorporated in order VI of the Civil Procedure Code Fundamental Rules of Pleadings. That a pleading shall contain, only a statement of facts, and not Law;. That a pleading shall contain all material facts and material facts only. That a pleading shall state only the facts on which the party pleading relies and not the evidence by.

That a pleading shall state such material facts concisely, but with precision and certainty. And it is for the judge to. A judge is bound to apply the correct law and draw correct legal inferences and facts,. If a plaintiff asserts a right in himself without showing on what facts his claim of right is funded. The parties should not take legal pleas but state the facts on the basis o f which such legal. Thus where a. In su ch cases, the plaintiff must state facts which establish the guilt or negligen ce of the defendant,.

Thus in a declaratory suit, it is not enough-to plead that the plaintiff is the legal heir of the deceased. The plaintiff must show how he was related to the deceased, and also.

Simil arly on money suit it is not enough that the plaintiff is entitled to get money from the defendant. He m ust state the facts showing his title to the money.

For example, he s hould state that the. If some witnesses were present. In a matrimonial petition, it is not enough to state that the respondent is guilty of cruelty towards the petitioner-wife and that she is entitled to divorce. The petitioner must state all those facts which establish cruelty on the part of the respondent. She may state that her husband is a drunkard and used to come home fully drunk and in a state of intoxication he inflicted physical injuries on her, she should specify dates on which such incidents took place; or that the husband used to abuse her or.

LLB students:. It is such facts which can establish physical or mental cruelty. In another example plaintiff files a suit for negligence and damages. It is not enough for him to state negligence. First of all the plaintiff must state those facts which establish the defendant's duty towards the plaintiff.

Thereafter, he must state how and in what manner was the defendant guilty of negligence. Thus he must state all the facts on which his plaint is based. The inference of law to the. The only prayer that he may add is that the relief may kindly be granted to him. Omission to state all the fact renders the pleading defective whatever inferences of law might. Such a plaint may be rejected on the ground that it discloses no.

The plaintiff or the defendant as the case may be, and his counsel must be on their. For e xample, in a suit for recovery of money for the goods sold, the defendant should not just take.

Such a statement is a plea of law, and can hardly stand and in spite of. In such a case the defendant must clearly state that he did not. He may also state that. Such facts would be valid. In an other example of a suit for defamation and damages, it is not sufficient fo r the plaintiff to state. Wherever possible the plaintiff must give the exact word s spoken or used in.

Wherever there is any ambiguity, he may take the plea of "inuendo" and. Thus the plaintiff should build his case on facts from which the conclusion would naturally and logically follow.

Examples of Bad Pleading:. A few instances of bad pleading for the benefit of the law students who whish to join the Bar: A lawyer should be careful while drafting a plaint or a written statement. Sometimes, there is slight difference between a statement of fact and a statement of law and a lawyer fails to notice it. The mental computer must constantly be at work marshalling the facts and separating such facts from legal inferences.

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