Skip to main content

A broad approach to drafting


A broad approach to drafting of any Application / Petition / Complaint may be undertaken in three chronological “Heads” –

1.      Reliefs prayed for / claimed;

2.      Grounds for Reliefs prayed for / claimed; (both factual and legal);

3.      Narration of facts substantiating the said grounds.

Further, there may be narration of such facts in the   beginning of the draft, which would lay foundation for “material facts of the case”. Materiality of facts would always mean those “facts which are very material to the relief claimed”.



Grounds for Reliefs prayed for / claimed implies (a) the essence / conclusion of material facts or proposition of facts; and (b) other legal provisions which supports the reliefs prayed for / claimed.



1.      AND, in every case before the Court, it is of utmost importance to “fence the case” in four corners, i.e. to say, the controversy which is to be dwelled upon must be duly and clearly set out. In my limited exposure to court hearings, and, reading of various judgments, I have observed that quite often, legitimate reliefs are denied on consideration of irrelevant facts, and, reliefs are given on consideration of irrelevant facts.



2.      Relevancy of a particular fact or set of facts to concerned nature of litigation has huge importance in our jurisprudence.



3.      If we look at the mandate of section 101 of Evidence Act, it says that, “facts asserted” by the “Plaintiff” must prove their existence, to claim judgment in respect of any right asserted or liability attributed.



4.      S. 5 of Evidence Act says that evidence may only be given of relevant facts and of no others.



5.      What could be relevant facts to the controversy would always depend upon the ingredients of the right claimed or ingredients of the liability attributed, or to say the principal or main reliefs prayed or claimed in the Petition or complaint. But the difficulty may always arise to decide the “relevancy of facts”, to a controversy.



6.      The definition of “Facts in issue” perhaps furnishes the classic explanation to decide, as to what could be relevant facts to a controversy. I reproduce the definition –



"Facts in issue": The expression "facts in issue" means and includes-any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows. And the test is –





Fact asserted
The Test of Relevancy / Materiality of fact asserted

If proved (whether solely or in connection with other facts), the inference would be drawn –
(a) of the existence of the (ingredient) of the right or the whole right itself, which is asserted; or
(b) of the non-existence of the (ingredient) of the right or whole right itself, which is asserted;

If proved (whether solely or in connection with other facts), the inference would be drawn –
(a) of the existence of the (ingredient) of the liability or the whole liability, which is attributed; or
(b) of the non-existence of the (ingredient) of liability or the whole liability, which is attributed;

If proved (whether solely or in connection with other facts), the inference would be drawn –
(a) of the existence of the (ingredient) of the disability or the whole disability itself, which is claimed; or
(b) of the non-existence of the (ingredient) of the disability or the whole disability itself, which is claimed.






7.      Therefore, in my view, in every pleading, the Petitioner or the Suitor, must set out, with due emphasize, that if the “following facts” are “proved”, the Petitioner / Suitor would be entitled for the judgment in his favour; and the adversary may argue that if the “following facts” are “proved”, the case of the Petitioner / Suitor be dismissed.



8.      In the entire aforesaid discussion, however what has been left out is to understand and appreciate what is a “fact”. The Evidence Act, does defined this very important term.



S.3: "Fact": "Fact" means and includes

(1) any thing, state of things, or relation of things, capable of being perceived by the senses;

(2) any mental condition of which any person is conscious.



Illustrations

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.

(b) That a man heard or saw something, is a fact.

(c) That a man said certain words, is a fact.

(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

(e) That a man has a certain reputation, is a fact.



9.      The illustration of “Fact” are –

a)      Admission of facts

b)      Confession of facts

c)      Certain conduct of persons

d)     Certain behaviour of persons

e)      Certain knowledge of fact of persons

f)       Certain intention of persons

g)      Certain acts or omissions of persons

h)      Occurrence or happening of things, events, natural course of events

i)        Existence of certain motives of a person

j)        Opinion of Experts



10.  I have observed that in every other case, parties make general allegations of negligence, fraud etc, without specifying the substance of negligence or fraud. These kinds of assertion of facts of mere allegations do not constitute “fact”. A “Fact” is something which is independently capable of being proved, which is capable of being identified / perceived by our senses.







Sandeep Jalan

Advocate.


Legal issues !!
If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts., including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR, deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders of the Courts / Tribunals, among others.
or
If you are looking for draft of any legal proceeding; or if you want to know the nature and attribute of any legal proceeding; or if you want to know the procedure followed in any legal proceeding; or if you want to know the grounds on which any order of the court / tribunal is challenged; or if you are facing any frivolous litigation.

https://www.litigationplatform.com/



Thank you.

Comments

Popular posts from this blog

The Commercial Courts / Suits - Pleadings and Procedure

The Commercial Courts, Act, 2015 – A broad framework In order to ensure speedy disposal of disputes which arises from commercial transactions involving high value, the Parliament of India has come out with a unique legislation namely, The Commercial Courts, Act, 2015; wherein Commercial Courts / Divisions are to be constituted in the existing district Courts and in High Courts; and wherein disputes arising from specified commercial dealings involving claim of Rs.1.00 Crore or above would be adjudicated by these newly constituted commercial Courts / Divisions. By virtue of recent Amendments, the limit of Rs.1.00 crore has been reduced to Rs.3.00 Lakhs; and accordingly claims relating to commercial disputes involving Rs.3.00 Lakhs could now be maintainable under this special regime.  And accordingly, the Code of Civil Procedure, 1908, is substantially amended, wherein new Order XIII-A and XV-A are inserted, apart from new Order XI, Sections 35 for costs, Verification of ...

Leading Evidence during trial

1.       In case where the accused refused to plead guilty of the offence to which he is charged with, and claims to be tried, the Court calls upon the Prosecution / Complainant to lead all the evidences he has in support of his case. 2.       In criminal trial, the evidence are required to be led by the complainant and / or their witnesses by stepping into the witness box and illustrating / demonstrating to what they have witnessed. The Complainant is to examine before the Court, himself, and all other witnesses, who are “witness” to the crime, which is alleged to have been committed by the accused named in the complaint. This examination of himself and other prosecution witnesses is called “Examination – in – Chief. 3.       Giving evidence of facts is critical to any trial, be it civil trial or criminal trial. And therefore, it becomes imperative to understand the dynamics of evidence in legal sens...

Form II under Rule 6 of Rules, 2006, framed under the impugned Act

Impugned Provision / other anomaly Breach of Section / Article FORM II [See Rule 6(1)] Application to the Magistrate under Section 12 of the impugned Act Section 3 – Explanation II; Section 18, 19, 20, 22 and 23 of the impugned Act. Principles of natural justice. FORM II [See Rule 6(1)] Application to the Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005)     To The Court of Magistrate .................................... .................................... .................................... .................................... Application under section ........................ of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005)            SHOWETH: That the application under section.................of Protection of Women from Domestic Violence Act, 2005 is b...