1
DRAFTING RULES & SKILLS
Drafting in its general connotation means, putting one‟s own ideas in writing. Drafting of any
matter is an art. Drafting of legal matters requires greater skills and efficiencies. It requires
thorough knowledge of law, procedure, settled judicial principles, besides proficiency in
English Language. A perfect drafting of matters in relation to Suits, Applications,
Complaints, Writ petition, Appeals, Revision, Reviews and other such matters connected
therewith shall obviously leads to good result in terms of money, time, energies and
expectation of not only the learned members of the Bench, but also the Bar as well as the
parties to the litigation. It creates a congenial atmosphere where the glory of the judiciary and
the Law grows to sky-heights. So in the case with regard to the drafting of Deed of
Conveyancing.
“Drafting, Pleadings and Conveyancing” (DPC) is made as a compulsory practical subject
study forming part of the curriculum of the Law Course in India. It envisages, inter alia,
drafting of Civil Pleadings; Criminal complaints and other proceeding; Writ Petition, Appeal-
Civil, Criminal and Writ; Revisions-Civil and Criminal, Reviews, Writ Appeals-Civil and
Criminal, and also Special Leave Petition; Contempt Petition, Interlocutory Applications, etc.
A student who acquires the requisite knowledge, perfection and proficiency in drafting of
these matters, shall undoubtedly become a perfect legal professional. He will be an asset in
the legal world.
History of Pleadings
The method of arriving at an issue by alternate allegations has been practised in the civilized
countries from earliest times. The art of pleadings apparently is as ancient as any portion of
our procedural law. In ancient India it certainly existed but not in the present form. The art of
pleading is also traceable in substantially the same in form in England in the days of Henry II.
The “issue” is found in the year, i.e., in the first year of the reign of Edward II. It shows that
the art of arriving at an issue was not only practised during the reign of Edward II but had
been practised even before “for an issue had not been only the constant effect, but the
professed aim and the object of pleading”. At first the pleading were oral. The parties
actually appeared in person in open Court and oral altercation took place in the presence of
the judges. These oral pleading were conducted either by the party himself or by a person who
was an eloquent orator and well versed in Dharma Sastras and Koran whom people
generally called Pandit and Maulvi in ancient and medieval India respectively. In English
countries such person was called narrator and advocates before the adoption of this present
lawyers‟ institution. The Pandits, Maulvis and narrators helped Kings and Judges in the
administration of justice in those days.
The duty of the King and the judge was to superindent of „moderate‟ the oral contentions
conducted before him. His aim was to arrive at some specific point or matter affirmed on the
one side, and denied on the other, which they both agreed was the question requiring decision;
on resulting this the parties were said to be „at issue‟ and the pleading were over. The parties,
then, were ready to go before a jury if it were an issue of England. In those days the judges
were very strict and they never allowed more than one issue in respect of each cause of action.
,2
When a defendant more than one defence to the plaintiff‟s claim he had to elect one out of the
defences. Since the reign of Queen Victoria the parties were allowed to raise more than a
single issue, either of law or fact.
During Viva voce altercation an officer of the court was busy writing on a parchment roll an
official report of the allegation of the parties along with the act of Court which together was
called record. As the suit proceeded similar entries were made from time to time and on the
completion of the proceedings, the roll was preserved as perpetual judicial record. When each
pleader in turn started borrowing parchment roll and entered his statement thereon himself,
the oral pleading fell into disuse on thus obvious defect. Later, with the development of print
machinery, paper etc. the method of drawing up the pleading on the plain paper and their
interchange between parties started and this happened probably in the reign of Edward IV.
The Judicature Act 1873 in England brought in many reforms in the realms of pleading like
which with frequent changes are still in force. The modern Indian law of pleading like any
other law is based on English system and the whole law civil pleading is governed by the
Code of Civil Procedure which lawyer has to master over for the thorough knowledge of
practice and procedure required in a civil litigation.
Meaning of Pleadings
Pleadings are the statement of facts in writing drawn up and filed in a Court by each party to
am 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. In India there are only
two pleading 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”. This definition is not very clear in itself.
The plaint and written statement are defined in the following clauses:
(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.
Beside the plaint and the written statement, order pleading that may be filed, may be classed
under two heads: (i) subsequent pleadings, and (ii) additional pleadings.
(i)Subsequent Pleadings: The only subsequent pleading which is filed as a matter of
right, without the leave of the court, is a written statement of a plaintiff by way of
defence to a plea set-off set up by a defendant in the written statement of his
defences. No other pleading subsequent to the written statement of a defendant other
than that by way of defence to a plea of set off can be presented except with the leave
of the court and upon such terms as the court may think proper. But the Court may at
any time require a written statement or an additional written statement from any of
, 3
the parties and fix a time for presenting the same (O.8, r.9). Any ground of defence
which has arisen after the institution of the suit or the presentation of the written
statement, may be, raised by the plaintiff or the defendant as the case may be, in his
written statement (O.8, r.9). This is also a subsequent pleading. The subsequent
pleading, i.e., this written statement in some states is also termed as “replication”.
This term was formerly used in England where plaintiff‟s written statement is now
called “reply”.
(ii)Additional Pleading: Although no pleading subsequent to the written statement of
a defendant other than by way of defence to a plea of set-off can be presented without
the leave of the court, yet the court may at any time require a written statement or
additional written statement from any of the parties, i.e., plaintiff or defendant or both
(O.8, r.8). The additional pleadings are not subsequent pleadings in the true sense of
the term. They are pleading by way of further and better statement of the nature of the
claim or defence or further and better particular of any matter or state in the
pleadings. These pleading may be ordered under order 6, rule 5 of the Code of Civil
Procedure.
Under the English Law, pleading has been defined as follows: “pleading includes any petition
or summons and also include the statement in writing of the claim or demand of any plaintiff
and of the defence of any defendant thereto and of reply of the plaintiff to nay counter-claim
of a defendant.”
Function and Object of Pleadings
The object of pleadings is to assist the Court and the parties to the dispute in its adjudication.
Its function is of multi-dimension, and is in various ways. Stable j., Pinston v. Loyds Bank
Ltd., (1941) 2 K.B. 72, has expressed the function of pleading in the following words:
“The function of a pleading is not simply for the benefit of the parties but also and
perhaps primarily for the assistance of a Court by defining with precision the area
beyond which without the leave of the court, and consequential amendment of
pleading, conflict must not be allow to extend”.
“The while 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
the they differ and thus to bring the parties to is also a definite issue. The purpose of pleading
is also eradicate irrelevancy. The parties, thus themselves know what are the matters left in
dispute and what facts whey have to prove at the trial. They are saved from the expense and
trouble of calling evidence which may prove unnecessary in view of the admission of the
opposite party. And further, by knowing before hand, what point the opposite party raise at
the trial they are prepared to meet them and are not taken by surprise as they would have
, 4
been, had three been no rules pleadings to compel the parties to lay bare their cases before the
opposite party prior to the commencement of the actual trial”.
Truly speaking the object of the pleading is to narrow down the controversy of the parties to
definite issue. The sole object of pleadings is that each side may be fully active to the question
that are about to be argued in order that they may have an opportunity of bringing forward
such evidence as may be appropriate to the issues. The Court has no power to disregard the
pleading and reach conclusions that they think are just and proper.
A few year ago Hon‟ble Mr. Justice Lord William of the Calcutta High Court in the case of,
strongly emphasize the need of careful study of the art of pleading and condemned the
obscure pleading which were shocking and were filed even in Calcutta High Court. It is,
therefore, the duty of every advocate to take extreme care in drafting of his pleadings. There
is no force in saying that the pleading in this country are not to be strictly construed. Has this
been the object of the law of pleading the framers of the Code of Civil Procedure would not
have laid down the rules of civil pleadings.
A select committee of eminent lawyers having knowledge of Indian conditions was appointed
to frame the present Code of Civil Procedure which has been amended and redrafted in 1976.
Order 6, 7 and 8 of the Code of Civil Procedure are very important from the point of view of
drafting of pleading in the High Court and Mofussils Court. Appendix A to the Code of Civil
Procedure contains some model form of pleadings which are useful. Unfortunately these
forms are seldom consulted by the mofussil pleader the reason being that the pleadings are
being drafted by their clerks who are not trained in this direction and do not have legal
knowledge.
The pleading should always be drawn up and conducted in such manner so as to evolve some
clear and definite issues i.e., some definite propositions of law and/or fact, asserted by one
party and denied by the other. But both the parties must agree on the points sought to be
adjudicated upon in action. When this has been fairy and properly ascertained then following
advantages flow from pleadings:
(i) It is a benefit to the parties to know exactly what are the matters left in dispute.
They may discover that they are fighting about nothing at all; e.g. when a plaintiff in
an action of libel finds that the defendant does not assert that the words are true, he is
often willing to accept an apology and costs, and so put an end to the action.
(ii)It is also a boon to the parties to know precisely what facts they must prove at the
trial; otherwise, they may go to great trouble and expense in procuring evidence of
facts which their opponent does not dispute. On the other hand, if they assume that
their opponent will not raise such and such a point, they may be taken suddenly by
surprise at the trial.
(iii)Moreover, it is necessary to ascertain the nature of the controversy in order to
determine the most appropriate mode of trial. It may turn out to be a pure point of
law, which should be decided by judge.
DRAFTING RULES & SKILLS
Drafting in its general connotation means, putting one‟s own ideas in writing. Drafting of any
matter is an art. Drafting of legal matters requires greater skills and efficiencies. It requires
thorough knowledge of law, procedure, settled judicial principles, besides proficiency in
English Language. A perfect drafting of matters in relation to Suits, Applications,
Complaints, Writ petition, Appeals, Revision, Reviews and other such matters connected
therewith shall obviously leads to good result in terms of money, time, energies and
expectation of not only the learned members of the Bench, but also the Bar as well as the
parties to the litigation. It creates a congenial atmosphere where the glory of the judiciary and
the Law grows to sky-heights. So in the case with regard to the drafting of Deed of
Conveyancing.
“Drafting, Pleadings and Conveyancing” (DPC) is made as a compulsory practical subject
study forming part of the curriculum of the Law Course in India. It envisages, inter alia,
drafting of Civil Pleadings; Criminal complaints and other proceeding; Writ Petition, Appeal-
Civil, Criminal and Writ; Revisions-Civil and Criminal, Reviews, Writ Appeals-Civil and
Criminal, and also Special Leave Petition; Contempt Petition, Interlocutory Applications, etc.
A student who acquires the requisite knowledge, perfection and proficiency in drafting of
these matters, shall undoubtedly become a perfect legal professional. He will be an asset in
the legal world.
History of Pleadings
The method of arriving at an issue by alternate allegations has been practised in the civilized
countries from earliest times. The art of pleadings apparently is as ancient as any portion of
our procedural law. In ancient India it certainly existed but not in the present form. The art of
pleading is also traceable in substantially the same in form in England in the days of Henry II.
The “issue” is found in the year, i.e., in the first year of the reign of Edward II. It shows that
the art of arriving at an issue was not only practised during the reign of Edward II but had
been practised even before “for an issue had not been only the constant effect, but the
professed aim and the object of pleading”. At first the pleading were oral. The parties
actually appeared in person in open Court and oral altercation took place in the presence of
the judges. These oral pleading were conducted either by the party himself or by a person who
was an eloquent orator and well versed in Dharma Sastras and Koran whom people
generally called Pandit and Maulvi in ancient and medieval India respectively. In English
countries such person was called narrator and advocates before the adoption of this present
lawyers‟ institution. The Pandits, Maulvis and narrators helped Kings and Judges in the
administration of justice in those days.
The duty of the King and the judge was to superindent of „moderate‟ the oral contentions
conducted before him. His aim was to arrive at some specific point or matter affirmed on the
one side, and denied on the other, which they both agreed was the question requiring decision;
on resulting this the parties were said to be „at issue‟ and the pleading were over. The parties,
then, were ready to go before a jury if it were an issue of England. In those days the judges
were very strict and they never allowed more than one issue in respect of each cause of action.
,2
When a defendant more than one defence to the plaintiff‟s claim he had to elect one out of the
defences. Since the reign of Queen Victoria the parties were allowed to raise more than a
single issue, either of law or fact.
During Viva voce altercation an officer of the court was busy writing on a parchment roll an
official report of the allegation of the parties along with the act of Court which together was
called record. As the suit proceeded similar entries were made from time to time and on the
completion of the proceedings, the roll was preserved as perpetual judicial record. When each
pleader in turn started borrowing parchment roll and entered his statement thereon himself,
the oral pleading fell into disuse on thus obvious defect. Later, with the development of print
machinery, paper etc. the method of drawing up the pleading on the plain paper and their
interchange between parties started and this happened probably in the reign of Edward IV.
The Judicature Act 1873 in England brought in many reforms in the realms of pleading like
which with frequent changes are still in force. The modern Indian law of pleading like any
other law is based on English system and the whole law civil pleading is governed by the
Code of Civil Procedure which lawyer has to master over for the thorough knowledge of
practice and procedure required in a civil litigation.
Meaning of Pleadings
Pleadings are the statement of facts in writing drawn up and filed in a Court by each party to
am 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. In India there are only
two pleading 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”. This definition is not very clear in itself.
The plaint and written statement are defined in the following clauses:
(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.
Beside the plaint and the written statement, order pleading that may be filed, may be classed
under two heads: (i) subsequent pleadings, and (ii) additional pleadings.
(i)Subsequent Pleadings: The only subsequent pleading which is filed as a matter of
right, without the leave of the court, is a written statement of a plaintiff by way of
defence to a plea set-off set up by a defendant in the written statement of his
defences. No other pleading subsequent to the written statement of a defendant other
than that by way of defence to a plea of set off can be presented except with the leave
of the court and upon such terms as the court may think proper. But the Court may at
any time require a written statement or an additional written statement from any of
, 3
the parties and fix a time for presenting the same (O.8, r.9). Any ground of defence
which has arisen after the institution of the suit or the presentation of the written
statement, may be, raised by the plaintiff or the defendant as the case may be, in his
written statement (O.8, r.9). This is also a subsequent pleading. The subsequent
pleading, i.e., this written statement in some states is also termed as “replication”.
This term was formerly used in England where plaintiff‟s written statement is now
called “reply”.
(ii)Additional Pleading: Although no pleading subsequent to the written statement of
a defendant other than by way of defence to a plea of set-off can be presented without
the leave of the court, yet the court may at any time require a written statement or
additional written statement from any of the parties, i.e., plaintiff or defendant or both
(O.8, r.8). The additional pleadings are not subsequent pleadings in the true sense of
the term. They are pleading by way of further and better statement of the nature of the
claim or defence or further and better particular of any matter or state in the
pleadings. These pleading may be ordered under order 6, rule 5 of the Code of Civil
Procedure.
Under the English Law, pleading has been defined as follows: “pleading includes any petition
or summons and also include the statement in writing of the claim or demand of any plaintiff
and of the defence of any defendant thereto and of reply of the plaintiff to nay counter-claim
of a defendant.”
Function and Object of Pleadings
The object of pleadings is to assist the Court and the parties to the dispute in its adjudication.
Its function is of multi-dimension, and is in various ways. Stable j., Pinston v. Loyds Bank
Ltd., (1941) 2 K.B. 72, has expressed the function of pleading in the following words:
“The function of a pleading is not simply for the benefit of the parties but also and
perhaps primarily for the assistance of a Court by defining with precision the area
beyond which without the leave of the court, and consequential amendment of
pleading, conflict must not be allow to extend”.
“The while 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
the they differ and thus to bring the parties to is also a definite issue. The purpose of pleading
is also eradicate irrelevancy. The parties, thus themselves know what are the matters left in
dispute and what facts whey have to prove at the trial. They are saved from the expense and
trouble of calling evidence which may prove unnecessary in view of the admission of the
opposite party. And further, by knowing before hand, what point the opposite party raise at
the trial they are prepared to meet them and are not taken by surprise as they would have
, 4
been, had three been no rules pleadings to compel the parties to lay bare their cases before the
opposite party prior to the commencement of the actual trial”.
Truly speaking the object of the pleading is to narrow down the controversy of the parties to
definite issue. The sole object of pleadings is that each side may be fully active to the question
that are about to be argued in order that they may have an opportunity of bringing forward
such evidence as may be appropriate to the issues. The Court has no power to disregard the
pleading and reach conclusions that they think are just and proper.
A few year ago Hon‟ble Mr. Justice Lord William of the Calcutta High Court in the case of,
strongly emphasize the need of careful study of the art of pleading and condemned the
obscure pleading which were shocking and were filed even in Calcutta High Court. It is,
therefore, the duty of every advocate to take extreme care in drafting of his pleadings. There
is no force in saying that the pleading in this country are not to be strictly construed. Has this
been the object of the law of pleading the framers of the Code of Civil Procedure would not
have laid down the rules of civil pleadings.
A select committee of eminent lawyers having knowledge of Indian conditions was appointed
to frame the present Code of Civil Procedure which has been amended and redrafted in 1976.
Order 6, 7 and 8 of the Code of Civil Procedure are very important from the point of view of
drafting of pleading in the High Court and Mofussils Court. Appendix A to the Code of Civil
Procedure contains some model form of pleadings which are useful. Unfortunately these
forms are seldom consulted by the mofussil pleader the reason being that the pleadings are
being drafted by their clerks who are not trained in this direction and do not have legal
knowledge.
The pleading should always be drawn up and conducted in such manner so as to evolve some
clear and definite issues i.e., some definite propositions of law and/or fact, asserted by one
party and denied by the other. But both the parties must agree on the points sought to be
adjudicated upon in action. When this has been fairy and properly ascertained then following
advantages flow from pleadings:
(i) It is a benefit to the parties to know exactly what are the matters left in dispute.
They may discover that they are fighting about nothing at all; e.g. when a plaintiff in
an action of libel finds that the defendant does not assert that the words are true, he is
often willing to accept an apology and costs, and so put an end to the action.
(ii)It is also a boon to the parties to know precisely what facts they must prove at the
trial; otherwise, they may go to great trouble and expense in procuring evidence of
facts which their opponent does not dispute. On the other hand, if they assume that
their opponent will not raise such and such a point, they may be taken suddenly by
surprise at the trial.
(iii)Moreover, it is necessary to ascertain the nature of the controversy in order to
determine the most appropriate mode of trial. It may turn out to be a pure point of
law, which should be decided by judge.
