Drafting Applications Under CPC and CrPC: An Essential Guide for Young Lawyers and Law Students

By Swetang Rataboli

A Lawyer's profession, apart from sound eloquence and presentation requires good drafting skills. Sound drafting skills are essential for putting across one's pleadings effectively. Importance of Legal drafting skills emanate from the legal maxim "verba volant, scriptamanent" which means spoken words fly away, written remain. Haggard has said that "Drafting is one of the most intellectually demanding of all lawyering skills. It requires knowledge of the law, the ability to deal with abstract concepts, investigative instincts, an extraordinary degree of prescience, and organizational skills."
Pleadings should be drafted in such fashion that the person reading them is able to maintain a constant flow of thought with regards to the subject in question. A judge has to sometimes fish through large files to infer and to decide an issue in controversy between the parties to the suit. If the judge is not able to deduce the facts of the case accurately and with consistency, his/her judgement could go for a toss. Therefore it is pertinent to draft pleadings in such a way, that it not only puts forth the respective party's facet of facts effectively before the court, but also assists the court in drawing an informed inference. Poorly drafted pleadings not only make the case of the respective party incoherent but also confuse the judge altogether. 
Legal pleadings should be as simple as simple as possible, without the use of excessive legal jargon or phraseology. Sure, a certain level of formality is necessary since court pleadings are formal in nature but having said so, an endeavour is required to be made not to complicate pleadings unnecessarily.
Through my years in practice, I have noticed many young lawyers who in spite of being a couple of years in law practice, are very poor in drafting applications to be filed in courts. Most of them though, require just an initial push or to be given a basic idea of the application, in order to start drafting it. With the intention of doing the very same for the young lawyers and law students alike, I have taken the initiative of writing this book. This book is not exhaustive by any means, but is meant to give young draftsmen a basic reference on drafting applications. 

• Language: English
• Publisher: House of Law Publications
• Release date: Jun 14, 2019
• ISBN: 9781393426066

Book preview

#Essential Guidelines for drafting Applications

✓  Before drafting any application, read the entire provision under which the application is to be filed, properly and understand it. That will widen your scope of pleadings to be included in the application.

✓  Incorporate the wordings and phraseologies used in the respective section, in the pleadings of application that is being drafted. Such incorporation enhances the legitimacy and credibility of the application.

✓  Applications need not be filed under a single provision of law. They can be filed under multiple provisions too as long as the provisions are within the same context as that of the applications.

✓  Although Order VI rule 15 of the Code of Civil Procedure, 1908 requires the verification of every pleading and furnishing of an affidavit in support of the pleadings, to be filed in the courts in India, the same is not strictly followed since it’s a cumbersome and a time consuming process. Pleadings alleging vital facts such as that of the facts stated in an application for a temporary injunction should be necessarily verified on oath and should be supported by an affidavit.

✓  Start drafting the application by explaining the previous developments in the respective case, followed by the circumstances/reasons for which the application is being made. Such a practice helps the judge as well as the parties to the respective case, comprehend and respond to the application better.

✓  While responding to an application, the prayer in the reply to the application need not only be to dismiss the application of the opposite party. The prayer can also be to partly allow it or to allow it conditionally.

✓  In a reply to an application, separate and independent prayers cannot be made since every prayer before the court requires the payment of court fees. However a prayer within the context of the application, to which the reply is filed, can be made.

Civil Applications

#Application for Temporary Injunction

(Draft 1)

IN THE COURT OF THE CIVIL JUDGE JUNIOR DIVISION AT MARGAO GOA

Regular Civil Suit No......../2018

.... Plaintiffs

V/s

.... Defendants

APPLICATION FOR TEMPORARY INJUNCTION UNDER ORDER 39 RULE (1) OF THE CODE OF CIVIL PROCEDURE, 1908

MAY IT PLEASE YOUR HONOUR

The plaintiff states as under:

The plaintiffs state that there exists a residential house of the plaintiffs, registered in the records of the ............. Municipal Council having H. No. .............., in the suit property. The plaintiffs further state that the defendants are in occupation of a structure, which is an extension to the residential house of the plaintiffs on the Southern side, which is surveyed under Chalta No. ........ and ............ of P.T Sheet No............ in the Office of the City Survey of ............. Goa, as tenants of the plaintiffs.

The plaintiffs state that since the defendants were threatening to carry out an illegal extension to the suit structure, present occupied by them as the tenants of the plantiffs, the plaintiffs had filed the present suit praying for permanently restraining the defendants from carrying out any illegal construction to the suit structure.

The plaintiffs state that during the pendency of the present proceedings, somewhere on the .............., when a Mason engaged by the defendants, sought permission from the plaintiffs to carry out construction to the suit structure and in the suit property, the plaintiffs came to the knowledge that the defendants intend on extending the structure by carrying out construction, thereby also encroaching upon in the suit property of the plaintiffs, without their consent. The plaintiffs further state that the defendants on being confronted by the plaintiffs abused the plaintiffs with filthy words and refused to relent from their intention to extend the suit structure by carrying out construction in the plaintiff’s property. The plaintiffs also submit that the defendants, in furtherance of their intention to carry out construction, have already procured and kept laterite stones and wooden planks on the suit property. The plaintiffs apprehend that the defendants will carry out illegal construction to the suit structure with feverish speed during the holidays thereby circumventing the due process of law.

The plaintiffs state the defendants have no right, title or authority to carry out construction in the suit property. The plaintiffs further submit that the defendants are in possession of the said structure only as tenants of the plaintiffs and hence they do not have any right to carry out an extension to the said structure or illegal construction in the suit property.

The plaintiffs state that Grave injury and irreparable loss will occasion to the plaintiff if the defendants, their agents, servants, relatives or representatives are not restrained from interfering with or encroaching in the suit property belonging to the plaintiffs.

The plaintiffs therefore pray: -

For an order of Temporary Injunction restraining the defendants, their agents, servants, relatives or representatives from interfering with or carrying out any illegal construction in the suit property and/or extending suit structure, belonging to the plaintiffs, pending the present suit.

For an ex-parte ad interim relief in terms of prayer (a) be granted

––––––––

Margao-Goa

Date:        

(Draft 2)

IN THE COURT OF THE CIVIL JUDGE JUNIOR DIVISION AT MARGAO GOA

Regular Civil Suit No......../2018

.... Plaintiffs

V/s

.... Defendants

APPLICATION FOR TEMPORARY INJUNCTION UNDER ORDER 39 RULE (1) OF THE CODE OF CIVIL PROCEDURE, 1908

MAY IT PLEASE YOUR HONOUR

The plaintiff states as under:

The plaintiffs state that the plaintiffs have filed to-day a suit for specific performance of contract, Permanent Injunction among other reliefs, as against the defendants whereby the plaintiffs have prayed for directing the defendants to specifically perform the contracts/Agreements entered into by them with the plaintiffs and further a permanent injunction restraining the defendants, their agents, servants, relatives or representatives from interfering with or encroaching in the suit plot.

In order to avoid needless repetition, the contents of the said suit may be incorporated herein and the same be read along with the present application so as to form its integral part.

The plaintiffs state that vide an Agreement of Sale dated ..............., the plaintiffs and the defendant No. 1 along with his late wife Mrs. ..........., entered into an Agreement, for the sale of the suit plot, better described hereinabove, for total consideration of Rs. ............./-.  The plaintiffs state that the plaintiffs had paid a sum of Rs. .........../- to the defendant No.1 and his late wife, by virtue of the said Agreement of Sale. The plaintiffs further state that the defendant No.1 and his late wife, vide the said Agreement of Sale, had granted the exclusive possession of the suit plot to the plaintiffs herein and had also permitted the plaintiffs to carry out all necessary work, required for the development of the suit plot at their own expense. The plaintiffs state that the defendant No.1 and his late wife Mrs. ............, had also executed an irrevocable Power of Attorney dated ............., in favour of the plaintiff No.1, in furtherance of the said Agreement of Sale, for development of the suit plot better described hereinabove.

The plaintiffs state since the wife of the defendant No.1, Mrs. ............., expired on ............., the plaintiff No.1 entered into a fresh Agreement of Sale dated ............., with the defendant No.1 and the defendant No.2, for the sale of the suit plot, on similar terms and conditions as that of the previous Agreement of Sale dated ............... The plaintiffs state that the plaintiff No.1 further advanced a sum of Rs. ............./- to the defendant No.1 and defendant No.2, at the time of execution of the said fresh Agreement of Sale, thereby paying a total amount of Rs. .............../- to the defendants. The plaintiffs state that the plaintiffs No.1 further tendered to the defendants, two post dated cheques drawn on ................... Bank, bearing No. ........... and ........... dated ............. and ............. respectively of Rs. .............../- each, with a promise to pay the balance amount of Rs. .............../-  within six months of obtaining the natural Guardianship Order of the then two minor daughters of the defendants No.1, i.e. the defendant No. 3 and 4 herein.

The plaintiffs state that inspite of the possession of the suit plot surveyed under No. ............. of village ............., being handed over to and exclusively retained by the plaintiffs, by virtue of the said Agreements of Sale dated ............. and .............. respectively, the defendant No.1, somewhere in the month of ................,  illegally trespassed in the said plot surveyed under No. ............ and forcibly, without consent of the plaintiffs, attempted to construct a compound wall on the Northern side of the suit plot. The plaintiffs state that upon confronting the defendant No.1 as regards his said

Reviews for Drafting Applications Under CPC and CrPC

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[winny gavana · Rating: 5 out of 5 stars]

I have never come across such a simple guideline book on legal drafting ,I wish to have my own hard copy of it.