Pleading-Conveyancing and Oral Argument: Khyber Pakhtunkhwa Judicial Academy Peshawar

PLEADING AND CONVEYANCING

Contents

1. Legal drafting
2. Drafting of pleadings
3. Replication and better statement
4. Return and Rejection of plaint
5. Orator-ship skills

Refer Code of Civil procedure

LEGAL DRAFTING

Legal drafting is one of the most intellectually demanding of all lawyering skills.

The creation of legal document includes: Agreements ,Legal Documents ,Litigation claims and complaints, Legal Opinions AND so on

It requires knowledge of the law, the ability to deal with abstract concepts, investigative instincts, an extraordinary degree of prudence, and organizational skills.

METHODOLOGY

How to make a draft: Inexperienced in job commits mistake by using defective languages, which does not express fully the intention of the executant. Such a scribe may use such language, which is capable of being understood in more than one sense.

A scribe well versed in drafting would use balanced and perfect language.

He shall express the executants intent in unambiguous language and contained in
formal style.

He must be also aware of at-least basics relating to subject matter .

1. Put the important material up front
2. Give a proper context
3. Build on that context
4. Build a container in readers mind

DIVIDE PARAGRAPHS

• Paragraph tells the reader what is coming Should convey information
• Headings gives a breath & break to the reader

LAYOUT

1. Form is important
2. Use standard fonts
3. Use proper margins
4. Properly align all the paragraphs
5. Check the documents carefully
6. Keep it short

STRUCTURE

1. Active voice
2. Proper use of punctuation
3. One word is usually enough…
4. Avoid unnecessary preamble.. It may be recalled that….it is interesting to note that..
5. Use names of the parties … names remain the same

ARTICULATE YOUR POSITION

1. Be clear and straightforward
2. Be direct and upfront
3. Powerful introduction and conclusion
4. Be credible
5. Maintain integrity
6. Never exaggerate
7. Know your boundaries

VETTING COMMENTS (NECESSITIES)

1. Command over law
2. Command over the language and grammarGrammar It is the study of the rules governing the use of a language. That set of rules is also called the grammar of the language, and each language has its own distinct grammar. Grammar is part of the general study of language called linguistics.
3. Practice makes the man perfect
4. Check and recheck
5. Think about the legal and factual implications
6. Ponder over the direct and indirect meanings
7. Think twice before adding, amending or subtracting technical details/ data
8. Consistency in language, tense and content
9. Avoid duplication
10. Legal language
11. Legal formalities
12. Use lead pencil
13. Use standard signs
14. Know the court
15. Be familiar with local Rules
16. Take Notes
17. Brief from A/D
18. Consult record.

WHY PLEADINGS?

1. Stance of the parties made known
2. The matter in issue is shrinked
3. Court is assisted and timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) is saved
4. Conflict is restricted… cant go beyond
5. without the leave of the court
6. Prevent multiplicity of litigation
7. Advance Justice
8. The details which the opponent has to answer

PLAINT- Important points

1. Plaint should be in accordance with (O VI, VII, CPC).
2. Pleadings 0 VI, Rule 1 CPC.
3. Contents of pleadings 0 VI, Rule 6 CPC.
4. Appendix A CPC. (Forms, O VI Rule 3 CPC)
5. Particulars in pleadings (0 VI Rule 4 CPC)
6. Better statement (0 VI Rule 5 CPC)
7. Condition of precedents (0 VI Rule 6 CPC)
8. Departure in pleadings (0 VI Rule 7 CPC)
9. Denial of contractContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act. (0 VI Rule 8 CPC)
10. Documents (0 VI Rule 9 CPC)
11. Malice (0 VI Rule 9 CPC)
12. Implied contract (0 VI rule 12 CPC)
13. Presumptions (0 VI rule 13 CPC)
14. Signature (0 VI Rule 14 CPC)
15. Verification of pleadings (0 VI Rule 15 CPC)
16. Striking out pleading (0 VI Rule 16 CPC)
17. Amendment of pleadingAmendment of pleading An amendment that would enable the real issues between the parties to be tried should be allowed subject to penalties on costs and adjournment, if necessary unless the amendment would cause injustice or injury to the opposing party which could not be compensated for by costs or otherwise. The court should be extremely hesitant to punish litigants for mistakes they make in the conduct of their cases, by deciding otherwise than by their rights. The court has to determine the stage of the proceedings in which the amendment to the pleadings is being sought, which can affect how the principles relating to amendments are being applied. Generally, in case of late application, the stronger the grounds required to justify the amendment sought, but this is all a matter of the court’s discretion. (0 VI Rule 17 CPC)
18. Particulars required in a plaint (0 VII Rule 1 CPC)
19. Procedure of admitting plaint (0 VII Rule 9 CPC)
20. Documents sued on (0 VII Rule 14, 15, 16 CPC)
21. Address with the plaint and consequences of failure to file address, change of address (0 VII Rule 19, 20,21,22 CPC)
22. List of legal representatives (0 VII Rule 26 CPC)

PLAINT-Ensure that:

1. names of the parties and their addresses are mentioned in the heading of the plaint
2. the claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. is precisely stated
3. the cause of action is clearly stated
4. the court has jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case.
5. the suit is properly valued for the purpose of court feeCourt fee It has to be paid on the plaint as framed and not as it ought to have been framed. Law of Suit Valuation in India and jurisdiction
6. plaint has material for effective adjudication

WRITTEN STATEMENT

1. Written statement should be ensured to be according to O 8, CPC.
2. When parties are not at variance, procedure laid down in O. 12 & 15 CPC may be followed.
3. For better statement, procedure contained in O 6, R 5 may be followed.
4. Permission for amendment in written statement may be given per O 6, R 17, CPC.
5. Timely procurement of written statement (0. 8 CPC/),
6. Setoff
7. Consenting written statement
8. Replication
9. Bold denials
10. Evasive denials
11. Cognovits
12. AffidavitAffidavit An ex parte statement in writing made under oath before a notary public or other officer authorized to administer oaths, about facts which the affiant either knows of his own personal knowledge or is aware of to the best of his knowledge. of facts

Ensure that:

• The court has jurisdiction
• All the facts are specially pleaded
• The preliminary objections are relevant.
• All the points raised in the plaint are properly answered
• There is no evasive denial
• In case of set off, proper court fee is affixed.
• Necessary material for effective adjudication

REPLICATION AND BETTER STATEMENT

1. Order 6 Rule 5 CPC
2. Order 8 Rule 9 CPC

IMPORTANT DO’S 

1. Clear
2. Prolix/verbose
3. Concise
4. Protracted
5. Material facts
6. Wordy
7. Definiteness
8. Argumentative
9. Precise
10. EvidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023
11. Claim …specific
12. LawLaw Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis.
13. Consistent Signed Verified
14. Not to push Irrelevant

RETURN OF PLAINT

Text of Order VII Rule 10:

The plaint shall at any stage of the suit be returned to be presented to the Court in whom the suit should have been instituted.

Procedure on returning plaint; on returning a plaint the judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

The plaint shall be returned as soon as the fact of its being placed before the wrong forum comes to the notice of the court. The term at “any stage” include the appeal stage. However every effort should be made to determine the jurisdiction of the court as soon as the plaint is filed.

Where the court having no jurisdiction gives its verdict; its decision is coram non judice and is not binding on anyone.

REJECTION OF PLAINT 

The court is under a duty, before issuing any summonsSummons It means an application to the Court in relation to an action or appeal which has to be served on other parties or non‑parties., to examine the plaint and shall reject the plaint if;

1. It does not disclose a cause of action.
2. Where the relief claimed is under-valued and not corrected after the court has requested
   revaluation.
3. The plaintiff has failed to furnish the court with sufficient stamp-paper within the time allowed after the request.
4. The suit appears time barred.
5. The grounds are set out in 0.VII.r.11. the above grounds for rejection must be based upon defects that are on the face of the plaint alone, which the judge in his own deliberate judgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2).  Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022) make a finding. Before rejecting the plaint, the judge must record an order to that effect with the reasons for such order. Such rejection does not by itself preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action (0.VII.r.10-r.13)

ORATOR-SHIP SKILLS

Power of persuasion .

Aristotle identified three components of communication that if followed correctly would
make for the most powerful method of conveying ideas. He highlighted Ethos, Pathos, and Logos. Ethos involves gaining the respect of the listeners, Pathos is the appeal to the listeners’ emotions, and Logos includes the facts used to convey a message.

The Big Idea:

It is important for the pleader to get to the main points of the arguments. Give the P.O something that he can take with him.

Artful Pause:

Taking a moment of silence before beginning is a method of gaining the attention. This strategy adds weight to the words about to be said

Be Authentic and polite

Use legal wording and a tone that would appeal to the logical and legal mind.

Confidence –

It requires lots of inner strength to go up and face several pair of eyeballs who are eager to hear to what you want say next.

Good content –

The content of the arguments is also extremely important. The content should be precise to the point on the same hand it should also convey your facts of case and legal points

Good structure –

The structure of your arguments is also very much important factor. It should have brief introduction, interesting body and good ending.

Tone –

The flat and monotonous tone actually puts audience into sleep. Really, I’ve been to sound sleep so many times while listening to the talks.

Memory power

This is utmost required property for a good orator Glancing through small notes may
help to remember the points so that you can refer during the oration. But constant looking at notes or reading out whole arguments may not amuse the PO.

Practice

To acquire decent amount of focus, optimum speed of speech delivery , a good tone
fluctuation, a good body language requires fare amount of Practice.

Length

If any duration is mentioned for your arguments, please stick to the timing. You should
not drift off the topic. If your purpose is not met, then you can ask for extending the time and try to complete within the time limit.

COMMON MISTAKES

• Casual approach .Stereo-type comments/replies
• Non attachment of proper documents
• Mention of non verified facts
• Non consultation with the department
• Responsible officer of AD if proposal of ADR is floated
• Correspondence with the department conveying the
  matters regarding court proceedings/ order sheets
• None balance between Quality and Quantity of work
• Deficiency of material provided
• Disrespectful behavior
• Lack of proper knowledge of Principle and
  subordinate legislation
• No briefing before evidence
• No data collection/Technical details

REMEDIES/ POINTS TO BE REMEMBER

1. Proper knowledge of High court Rules and orders
2. Effective liaison with the concerned departments
3. Effective control over subordinate staff
4. Maximum time may be spends in court
5. Preparation of stage wise list of cases and its communication to the departments
6. Inter personal communications
7. Brief and to the point
8. Follow-up of correspondence and court directions
9. Court and Case Management
10. How to protect government interests
11. Call for final draft on facts and give it to legal shape
12. Specific denial
13. Clarity in comments
14. Evidence in accordance with the pleadings
15. State material facts
16. Interim order/ interrogatory order
17. Material facts
18. Know the judge
19. Ruling in previous cases
20. Conduct in the court room
21. Review the judicial opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. before drafting
22. Know the judges preference

Khawaja Wajihuddin ( Khawaja Wajihuddin) Dean Faculty Khyber Pakhtunkhwa Judicial Academy-Peshawar, Pakistan