UNIT -5 Drafting and Pleading -

Unit-5

Question:- Write short notes on followings ; (I)Interlocutory Application? (I) Memorandum of Appeal ? (iii) Restitution of Conjugal Rights?(iv) Revision (Criminal) ? (V) Power of Attorney ? (vi) Will? (vii) Leave & Licence ?(viii) Notices ?(ix) Agreement of sale

1. Interlocutory Application

An interlocutory application is a petition filed during the pendency of a main suit or legal proceeding to address urgent or interim reliefs. It does not decide the primary rights of the parties but focuses on temporary orders required for justice until the main matter is resolved.

Examples: Temporary injunctions, stay orders, or appointment of a receiver.
Relevant Provision: Order XXXIX of the Civil Procedure Code, 1908, deals with injunctions.
Purpose: To ensure justice is not delayed and the parties’ rights are protected while the case is ongoing.

2. Memorandum of Appeal

A memorandum of appeal is a formal document filed by an aggrieved party to challenge the decision of a lower court in a higher court.

Essentials:
The grounds of appeal (specific reasons for challenging the decision).
Statement of facts.
Relief sought.
Relevant Provision: Order XLI, Rule 1 of the Civil Procedure Code, 1908 (civil appeals) and Section 372-394 of the Criminal Procedure Code, 1973 (criminal appeals).
Purpose: To provide a framework for the appellate court to understand the errors in the lower court’s judgment.

3. Restitution of Conjugal Rights

Restitution of conjugal rights refers to a legal remedy available to a spouse whose partner has unjustifiably withdrawn from their company. The aggrieved spouse can file a petition to restore marital obligations.

Relevant Provision: Section 9 of the Hindu Marriage Act, 1955.
Essential Requirements:
Withdrawal from the society of the spouse without reasonable cause.
No valid legal ground for refusal to cohabit.
Purpose: To promote reconciliation and preserve the sanctity of marriage.
Case Law: Sarla Mudgal v. Union of India (1995) discussed the relevance of matrimonial duties.

4. Revision (Criminal)

A criminal revision is a procedural remedy where a higher court reviews the legality, correctness, or propriety of an order or decision of a subordinate court.

Relevant Provision: Section 397-401 of the Criminal Procedure Code, 1973.
Purpose: To prevent miscarriage of justice where no appeal lies.
Scope: It addresses jurisdictional errors or gross irregularities in trial proceedings.
Limitation: The revisional court cannot interfere in findings of fact unless a glaring error exists.

5. Power of Attorney

A power of attorney (POA) is a legal document through which one person (the principal) authorizes another person (the agent) to act on their behalf in legal or financial matters.

Types:
General Power of Attorney: Grants broad authority for various acts.
Special Power of Attorney: Grants specific, limited authority.
Relevant Law: Power of Attorney Act, 1882.
Essentials:
Name and details of the principal and agent.
Scope of authority.
Date and place of execution.
Purpose: To facilitate delegation of authority, especially in property dealings, banking, or court matters.

6. Will

A will is a legal declaration of a person’s intention regarding the distribution of their property after death.

Essentials:
Made by a person of sound mind.
Free consent without coercion or undue influence.
Must be signed and attested by two witnesses (as per Section 63 of the Indian Succession Act, 1925).
Revocability: A will can be revoked or altered during the lifetime of the testator.
Purpose: To ensure the property is distributed according to the wishes of the deceased.
Case Law: H.V. Rajan v. R. Krishnaswamy (2001) emphasized the importance of compliance with formalities.

7. Leave and Licence

A leave and licence agreement is a legal document through which the owner of a property (licensor) grants permission to another person (licensee) to use the property for a specific purpose without transferring any interest or ownership.

Relevant Law: Section 52 of the Indian Easements Act, 1882.
Key Features:
No transfer of ownership or tenancy rights.
Can be revoked by the licensor.
Purpose: To facilitate temporary use of property without creating tenancy.
Example: Agreements for renting residential premises for a limited period.

8. Notices

A notice is a formal written communication sent to an individual or entity to inform them about legal action, demand, or requirement to act in a particular manner.

Types:
Legal Notice: For initiating legal proceedings (e.g., under Section 80 of CPC for suits against the government).
Demand Notice: For recovering unpaid dues.
Purpose: To provide the recipient an opportunity to address grievances or comply with legal requirements before litigation.
Example: Notice under Section 138 of the Negotiable Instruments Act, 1881 for cheque dishonor.

9. Agreement of Sale

An agreement of sale is a legal contract between a seller and a buyer to transfer ownership of property under agreed terms and conditions.

Example: Sale of residential or commercial property.

Essentials:

Identification of parties.

Description of the property.

Sale consideration.

Date of execution and possession.

Relevant Law: Section 54 of the Transfer of Property Act, 1882, governs agreements of sale for immovable property.

Purpose: To ensure clarity and legally bind the parties for the intended sale.

Question :- Write short notes on the following : (a) Gift (b) Licence (c) Cause of Action (d) Misjoinder (e) Equitable set off (f) Review (g) Power of Attorney (h) ex parte

Short Notes

(a) Gift

A gift is a voluntary transfer of ownership of property by one person (the donor) to another (the donee) without any consideration.

Relevant Law: Governed by Section 122 of the Transfer of Property Act, 1882.
Essentials:
Transfer must be voluntary and without any consideration.
Donor must be competent to contract.
Property must be tangible or movable.
Acceptance of the gift by the donee during the lifetime of the donor.
Example: A parent gifting a house to their child.

(b) Licence

A licence is a legal permission granted by one person (licensor) to another (licensee) to use their property for a specific purpose without transferring ownership or possession.

Relevant Law: Defined under Section 52 of the Indian Easements Act, 1882.
Essentials:
Permission must be granted.
Does not create any interest in the property.
Can be revoked by the licensor unless irrevocable by agreement.
Example: Renting a property for a temporary business setup.

(c) Cause of Action

A cause of action refers to the legal reason or set of facts that gives a person the right to file a lawsuit in a court of law.

Essentials:
Violation of a legal right or duty.
Facts that provide a basis for the claim.
Purpose: It determines whether the court has jurisdiction to entertain the case.
Example: In a breach of contract, the cause of action arises when one party fails to fulfill their obligations.

(d) Misjoinder

Misjoinder refers to the improper joining of parties or causes of action in a lawsuit.

Types:
Misjoinder of Parties: Inclusion of parties not relevant to the matter.
Misjoinder of Causes of Action: Combining unrelated claims in one suit.
Relevant Law: Governed under Order I, Rule 9 of the Civil Procedure Code, 1908.
Effect: Misjoinder does not invalidate the suit but may lead to amendment or striking out of irrelevant parties/claims.

(e) Equitable Set-Off

Equitable set-off refers to the right of a defendant to counter a plaintiff’s claim by asserting a connected or reciprocal claim arising from the same transaction.

Relevant Law: Based on equity and recognized under Order VIII, Rule 6 of the Civil Procedure Code, 1908.
Essentials:
Both claims must arise from the same transaction.
The defendant’s claim must be legally enforceable.
Example: If a supplier sues a buyer for the price of goods delivered, the buyer can set off the cost of defective goods delivered earlier.

(f) Review

A review refers to the re-examination of a court’s judgment or order by the same court to correct an error apparent on the face of the record.

Relevant Law: Governed under Order XLVII, Rule 1 of the Civil Procedure Code, 1908.
Grounds for Review:
Discovery of new and important evidence.
Apparent error on the face of the record.
Any other sufficient reason.
Purpose: To prevent miscarriage of justice due to oversight or mistakes in judgment.

(g) Power of Attorney (Ex Parte)

Power of Attorney: A legal document authorizing one person (agent) to act on behalf of another (principal) in legal, financial, or property matters.
Types: General and Special Power of Attorney.
Relevant Law: Governed by the Power of Attorney Act, 1882.
Ex Parte: Refers to proceedings conducted in the absence of one party, usually because the absent party failed to appear despite notice.
Application: Ex parte orders are common in injunctions or temporary reliefs.
Purpose: To ensure justice is not delayed when one party fails to appear.
Relevant Law: Order IX, Rule 6 of the Civil Procedure Code, 1908.

(h) Leave and Licence

Leave and Licence: It is a contractual arrangement where the licensor permits the licensee to use their property for a specific purpose without transferring any interest or ownership.
Governed under Section 52 of the Indian Easements Act, 1882.
Key Features:
- Temporary permission.
- Revocable unless otherwise agreed.
- Does not create tenancy rights.
Example: A landlord allowing a shopkeeper to operate in a commercial property temporarily.

(i) Notices

Notices: A legal intimation served by one party to another, informing them about a legal obligation, breach, or intention to take legal action.
Types:
1. Legal Notice: A formal communication indicating legal action.
2. Notice Under Section 80, CPC: A mandatory notice served to the government or public officer before filing a suit against them (Civil Procedure Code, 1908).
3. Public Notice: Issued to inform the public about a legal matter (e.g., property sale).
Purpose: Ensures fair opportunity for compliance or settlement before legal proceedings.

Additional Examples:

Agreement to Sale: It precedes the actual sale and outlines terms and conditions. It is governed by Section 54 of the Transfer of Property Act, 1882, and specifies the intention of parties.
Ex Parte: Applied in cases like injunctions where urgent relief is sought, ensuring the absence of one party does not delay justice.
Will: A legal declaration of a person’s intentions regarding their property, governed by the Indian Succession Act, 1925. It must be signed and attested as per Section 63 of the Act.

Question:- Answer the following question briefly: (a) Whats plaint? o w e r o f attomey of Notice (d) Define exchange deed. (e) Ex-parte decree (f) Mortgage deed (h) What is division C (criminal) ? (g) What is criminal complaint?

Brief Answers:

(a) What is a Plaint?

A plaint is the written statement of claim filed by the plaintiff in a civil suit to initiate legal proceedings. It outlines the facts, cause of action, relief sought, and jurisdiction under the Civil Procedure Code, 1908 (Order VI, Rule 1 and Order VII).

(b) What is a Power of Attorney?

A power of attorney is a legal document in which a person (principal) appoints another person (agent) to act on their behalf for specific or general purposes.

Types: General Power of Attorney and Special Power of Attorney.
Governed by the Power of Attorney Act, 1882.

(c) What is a Notice?

A notice is a formal written communication informing the recipient of a legal obligation, breach, or intention to take legal action.

Key Types:
Legal Notice: A demand notice sent before initiating litigation.
Notice Under Section 80, CPC: A mandatory notice sent to the government or public officers before filing a suit.

(d) Define Exchange Deed.

An exchange deed is a legal document that facilitates the transfer of ownership of property between two parties without monetary consideration.

Governed by Section 118 of the Transfer of Property Act, 1882.
Essential elements: Offer, acceptance, and mutual agreement.

(e) What is an Ex-parte Decree?

An ex-parte decree is a court judgment passed in the absence of the defendant when they fail to appear or contest the case despite proper notice.

Governed under Order IX, Rule 6 of the CPC, 1908.

(f) What is a Mortgage Deed?

A mortgage deed is a legal instrument where the mortgagor transfers an interest in immovable property to the mortgagee as security for a loan.

Governed by Section 58 of the Transfer of Property Act, 1882.
Must be registered under the Registration Act, 1908.

(g) What is a Criminal Complaint?

A criminal complaint is a formal allegation made to a magistrate regarding the commission of an offense, requesting action under the Code of Criminal Procedure, 1973 (Sections 2(d) and 200).

(h) What is Division C (Criminal)?

Division C in criminal law refers to the classification or categorization of offenses based on severity, nature, or procedural aspects under the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC).

Typically, it addresses serious offenses like theft, robbery, or breach of trust.

Question:-Write Short notes on the following : (a) Fundanental rules of pleading (b) Crimir..I Pleading (c) Promissory note (d) Requisites of notice (e) Formal parts of a plaint (f) Special power of attorney (g) Wil (h) Meaning of pleading.

Short Notes:

(a) Fundamental Rules of Pleading

Pleading refers to presenting material facts in a civil suit in written form, either as a plaint or a written statement. The fundamental rules of pleading are:

Facts, not Law: Only facts should be stated, not legal arguments.
Material Facts: Only relevant and material facts are required.
No Evidence: Pleading should not include evidence.
Brevity: Clear, concise, and precise statements must be made.
Consistency: Facts must be stated without contradiction.
Governed by Order VI of the Civil Procedure Code, 1908.

(b) Criminal Pleading

Criminal pleading refers to written submissions in criminal cases, such as complaints, charges, or applications under the Code of Criminal Procedure, 1973. Key aspects include:

Complaints under Section 2(d) of CrPC.
Charge framing under Section 211 of CrPC.
Applications for bail, anticipatory bail, or other remedies.
Criminal pleadings must be precise and establish the offense alleged.

(c) Promissory Note

A promissory note is a legal instrument in which one party (maker) promises in writing to pay a specific sum of money to another party (payee) on demand or at a specified future date.

Governed by Section 4 of the Negotiable Instruments Act, 1881.
Essentials:
Unconditional promise to pay.
Specified amount.
Signed by the maker.

(d) Requisites of Notice

A notice is a formal communication conveying information, demand, or intention to act legally. Essentials include:

Clarity: The subject matter must be clear.
Addressed Properly: To the correct individual or entity.
Timely Delivery: Served within a reasonable or prescribed time.
Legal Compliance: Must comply with statutory requirements, e.g., Section 80 of the CPC for notices to the government.

(e) Formal Parts of a Plaint

A plaint is a written complaint initiating a civil suit. Its formal parts include:

Heading: Court name and jurisdiction.
Cause Title: Details of parties (plaintiff and defendant).
Body:

Jurisdiction.
Facts of the case.
Cause of action.
Relief sought.

Verification: Statement verifying the truth of facts signed by the plaintiff.
Governed by Order VII, Rule 1 of CPC.

(f) Special Power of Attorney

A special power of attorney authorizes an agent to perform specific tasks or acts on behalf of the principal.

Purpose: Limited to one act or transaction.
Governed by the Power of Attorney Act, 1882.
Essentials:
Authority explicitly defined.
Proper execution and attestation.
Can be revoked or terminate upon completion of the specified act.

(g) Will

A will is a legal declaration by a person regarding the distribution of their property after death.

Governed by the Indian Succession Act, 1925 (Section 63).
Essentials:
Legal capacity of the testator.
Free consent.
Attestation by at least two witnesses.
Can be revoked or amended by the testator during their lifetime.

(h) Meaning of Pleading

Pleading refers to the formal written statements of parties in a legal proceeding that set out their claims or defenses.

Includes:
Plaint (filed by the plaintiff).
Written Statement (filed by the defendant).
Governed by Order VI, Rule 1 of the CPC, 1908.
Purpose: To ensure clarity and define the issues for trial.

Question:-Answer the following briefly : (a) Define written statement. (b) What do you mean by an affidavit ? (c) Discuss three grounds of revision (civil). (d) What do you mean by criminal complaint? (e) Define Mortgage Deed: (f) Define Lease Deed.’ (g) Differentiate between leave and Licence. (h)What is Exchange Deed?

Brief Answers:

(a) Define Written Statement

A written statement is the reply filed by the defendant in response to the plaint submitted by the plaintiff in a civil suit. It contains the defendant’s defenses, admissions, or denials of the allegations made in the plaint.

Governed by Order VIII of the Civil Procedure Code, 1908.

(b) What do you mean by an Affidavit?

An affidavit is a sworn written statement made voluntarily by a person under oath or affirmation, used as evidence in courts.

Governed by Section 139 and Order XIX of the Civil Procedure Code, 1908.
Must be signed, witnessed, and verified by an authorized officer or notary.

(c) Discuss Three Grounds of Revision (Civil)

Revision refers to the supervisory jurisdiction of higher courts to examine the legality of orders passed by subordinate courts.
Grounds for civil revision under Section 115 of the CPC:

Jurisdictional Error: Subordinate court exercised jurisdiction not vested in it or failed to exercise jurisdiction vested in it.
Material Irregularity: A grave procedural error that affects the rights of the parties.
Failure of Justice: Where the order results in a miscarriage of justice or irreparable harm.

(d) What do you mean by Criminal Complaint?

A criminal complaint is a formal allegation made to a Magistrate under Section 2(d) of the Criminal Procedure Code, 1973, stating that an offense has been committed.

It can result in the Magistrate initiating criminal proceedings or an investigation under Section 190 of the CrPC.

(e) Define Mortgage Deed

A mortgage deed is a legal document that transfers an interest in immovable property by the mortgagor to the mortgagee as security for a loan.

Governed by Section 58 of the Transfer of Property Act, 1882.
Essentials:
Description of the property.
Terms and conditions of repayment.
Rights and liabilities of the parties.

(f) Define Lease Deed

A lease deed is a legal agreement between the lessor (owner) and the lessee (tenant) for the transfer of a right to use an immovable property for a specified period in exchange for rent.

Governed by Section 105 of the Transfer of Property Act, 1882.
Essentials:
Rent amount.
Duration of the lease.
Rights and obligations of both parties.

(g) Differentiate Between Leave and Licence

Leave and Licence:

A license is a permission granted by the owner of a property to another person to use it without transferring any interest in the property.
Governed by the Indian Easements Act, 1882.

Lease:

A lease involves the transfer of an interest in the property for a specified period, allowing exclusive possession to the lessee.
Governed by the Transfer of Property Act, 1882.

(h) What is an Exchange Deed?

An exchange deed is a legal document facilitating the transfer of ownership of one property for another, where both parties transfer ownership without involving monetary consideration.

Governed by Section 118 of the Transfer of Property Act, 1882.
It must include the terms of the exchange and be registered under the Registration Act, 1908 if the property value exceeds ₹100.

Question:-Write short note on hollowing (I) What do you mean by plaint? (ii) What do you mean by written statement ii) What do you understand by amendments of pleadings? (iv) What is bail application? (v) What is the distinction between G.P.A. & S.P.A.? (vi) What is sale deed? (vii) What is mortgage deed? (viii) What do you mean by notice?

Short Notes:

(i) What do you mean by Plaint?

A plaint is a legal document filed by the plaintiff to initiate a civil suit. It contains the facts of the case, relief sought, and the cause of action.

Governed by Order VI and VII of the Civil Procedure Code, 1908.
Essentials: Name of the court, parties, facts, cause of action, relief claimed, and verification.

(ii) What do you mean by Written Statement?

A written statement is the reply filed by the defendant in response to the plaint. It contains admissions, denials, or defenses against the allegations made by the plaintiff.

Governed by Order VIII of the Civil Procedure Code, 1908.
Time limit: 30 days from the date of service of summons, extendable to 90 days with permission.

(iii) What do you understand by Amendments of Pleadings?

Amendments of pleadings refer to changes made in the plaint or written statement to correct errors, include omitted facts, or meet legal requirements.

Governed by Order VI, Rule 17 of the CPC, 1908.
Allowed to prevent injustice, provided it does not change the nature of the suit or delay proceedings.

(iv) What is Bail Application?

A bail application is a formal request made to a court to release an accused person from custody while ensuring their appearance for trial.

Governed by Sections 436-439 of the Criminal Procedure Code, 1973.
Types: Regular bail, anticipatory bail (Section 438 CrPC), and interim bail.

(v) Distinction Between G.P.A. and S.P.A.

General Power of Attorney (G.P.A.):

A document authorizing the agent to perform a broad range of activities on behalf of the principal.

Special Power of Attorney (S.P.A.):

A document authorizing the agent to perform specific acts for the principal.
Both are governed by The Powers of Attorney Act, 1882.

(vi) What is Sale Deed?

A sale deed is a legal document that transfers ownership of immovable property from the seller to the buyer in exchange for consideration.

Governed by Section 54 of the Transfer of Property Act, 1882.
Essentials: Description of the property, consideration, and registration under the Registration Act, 1908.

(vii) What is Mortgage Deed?

A mortgage deed is a legal document by which an interest in immovable property is transferred by the mortgagor to the mortgagee as security for a loan.

Governed by Section 58 of the Transfer of Property Act, 1882.
Must specify the property, loan amount, and repayment terms.

(viii) What do you mean by Notice?

A notice is a formal written communication informing a person or party of an intended action or a legal obligation.

Examples: Legal notices, demand notices, or termination notices.
Governed by various laws, including the General Clauses Act, 1897 and Section 80 of the CPC (Notice to Government).