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Unit-2 and Unit-3 DPC.pptx

  1. 1. Unit-2 & Unit-3 Drafting, Pleading & Conveyancing MS. SAMRITI, ASSISTANT PROFESSOR, VSLLS, VIPS-TC DISCLAIMER: No copyright violation is intended. The content is purely for educational purpose.
  2. 2. Application for setting aside ex parte decree Order IX, Rule 6 of the Code provides for the procedure that is to be adopted when on the first date of hearing of the suit only the plaintiff appears and the defendant does not appear despite the summons being duly served on the defendant, or, summons being duly served on the defendant but not within sufficient time, or, when summons were not duly served. Under Order IX, Rule 6 of the Code, the defendant can be proceeded against ex parte provided summon were duly served upon him within sufficient time. Order IX, Rule 7 of the Code contemplates a situation where by the case was proceeded ex parte since the defendant did not appear before the court of law, or, where the defendant failed to appear before the court of law after filing of the written statement, but, thereafter the defendant appears before the court of law and assigns good cause for his previous non-appearance, and thereby, prays for the setting aside of the ex parte order.
  3. 3. Cont. Order IX, Rule 13 of the Code states that an ex parte decree passed against a defendant can be set aside if the defendant satisfies the court on either of the two counts: (a) the summons were not duly served on the defendant, or, (b) the defendant was prevented by any “sufficient cause” from appearing before the court when the suit was called out for hearing. The court has the discretion to set aside the ex parte decree passed against the defendant on such terms as to costs or otherwise (deposit of decretal amount in the court) as the court deems fit in the facts and circumstances of each case.
  4. 4. Cont. An ex parte decree is a decree that is passed by the court in absence of any response from the defendant as per Order 9 Rule 6 of CPC. As per Order 9 Rule 13, the defendant may apply before the court that passed the decree to set it aside on the following grounds: If he satisfies the court that the summons was not duly served he was prevented by any other sufficient cause from attending the hearing. For example, bona fide mistake as to the date or hearing, late arrival of the train, etc. are sufficient causes for the absence of the defendant. Such an application for setting aside may be made within 30 days from the date of the decree as per Section 123 of Limitation Act.
  6. 6. Cont. Body of the application Prayer IN THE PREMISES STATED HEREIN ABOVENAMED THE APPLICANT MOST RESPECTFULLY PRAYS THAT THIS HON’BLE COURT MAY BE PLEASED TO: a. Pass an order setting aside the decree dated 18.07.0000 in Suit no. 000/2013; b. Pass any other order(s) which this Hon'ble Court may deem fit and proper under the facts and circumstances of this case; OPPOSITE PARTY NO. 4 THROUGH ADVOCATE PLACE: DATED:
  7. 7. Exercise-I: Application for setting aside ex parte decree Application Under Order IX Rule 13 Of The Code Of Civil Procedure Filed By The Defendant for Setting Aside Exparte Decree passed by the High Court on 8.8.2021
  8. 8. Suit under O. XXXVII of the Code of Civil Procedure (Summary Suits) The court dealing with summary suits can pass the judgment in the favour of the plaintiff if:  the defendant has not applied for leave to defend or if such application has been made but refused, or  the defendant who is permitted to defend fails to comply with the conditions on which the leave to defend was granted. This order shall apply to the following Courts-The High Courts, City Civil Courts and Courts of Small Causes and Such other Courts as may be specifically empowered in this behalf by the High Court from time to time by a Notification in the Official Gazette:
  9. 9. Cont. The Order applies to the following class of suits: Suits upon bills of exchange, hundies and promissory notes Suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest arising on a  written contract, or  on an enactment wherein the amount to be recovered is a fixed sum of money, or a debt other than a penalty, or  guarantee, where the claim against the principal is in respect of a debt or for liquidated demand only.  suit for recovery of receivables instituted by any assignee of a receivable. In case of a summary suit it should be specifically averred that the suit has been filed under order XXXVII. No other claim has been made other than what lies within the ambit of order XXXVII.
  10. 10. Cont. Where plaintiff desires to institute a plaint under order XXXVII, it shall contain specific averment to that effect & that no relief which does not fall within the ambit of this rule has been claimed in the plaint.  (Under Order XXXVII of the Code of Civil Procedure, 1908) to be inscribe immediately below the suit number in the title of the suit. Leave to defend: The Defendant is obliged to enter appearance within 10 days of service of summons. After entering appearance, the Defendant shall be required to file its Leave to Defend as in a summary suit the Defendant does not have a right to contest till it proves that there is a triable dispute and that the debt is not an admitted debt/liability.
  11. 11. Exercise-I: Suit under O. XXXVII of the Code of Civil Procedure (Summary Suits) A had to be recover Rs. 5 crores from B for cement supplied by A. In lieu of a contract signed by both the parties at New Delhi in September 2018. The price of cement bag was fixed at Rs. 500/- per kg and the entire order was to be delivered in six months by A. Draft a suit for recovery of Rs. 5 crores.
  12. 12. Suit for Permanent Injunction All the civil courts are empowered to issue injunctions. An injunction may be issued for and against individuals, public bodies or even State. Civil suit is an effective legal remedy by any person against the other seeking a Relief of restraint under the facts when the person approaching the court is aggrieved by any mischief of the other person. The Injunction may be temporary or permanent as per Specific Relief Act. In some cases Injunction will not be issued. Circumstances in which injunction will not be issued are: (i) where damages are the appropriate remedy, (ii) where an injunction is not the appropriate relief, (iii) where the plaintiff is not entitled to an injunction on account of his conduct, (iv) where the contract cannot be specifically enforced, (v) where the injunction would operate inequitably. Suit can be filed by any affected party. Format of Suit for Injunction is given below
  13. 13. Exercise: Suit for Permanent Injunction Suit for Permanent Prohibitory Injunction and Mandatory Injunction restraining the defendant from raising any construction over the suit land comprising in Khata Khatauni No. 08, Khasara No. 1232 measuring 100 sq ft Biswas situated at Dwarka. Restraining the defendant from causing any construction over the suit land against the Laws and Rules. Also directing the defendant to remove illegal and unauthorised construction over the suit land owned and possessed by the plaintiff.
  14. 14. Suit for Dissolution of Partnership According to Section 39 of the Partnership Act, dissolution of a firm is The dissolution of a partnership between all the partners of a firm. Dissolution of Partnership by Agreement- According to Section 40 a firm may be dissolved with the consent of all the partners or in accordance with a contract between the partners. Section 40 - DISSOLUTION BY AGREEMENT Section 41 - COMPULSORY DISSOLUTION Section42- DISSOLUTION ON THE HAPPENING OF CERTAIN CONTINGENCIES Section43 - DISSOLUTION BY NOTICE OF PARTNERSHIP AT WILL Section44 - DISSOLUTION BY THE COUR
  15. 15. The Court may dissolve a firm on grounds specified u/s 44 of PA,1932 A partner has become of unsound mind A partner has become in any way permanently incapable of performing his duties as partner A partner is guilty of conduct which is likely to affect prejudicially the carrying on of the business regard being had to the nature of the business A partner wilfully or persistently commits breach of agreements relating to the management of the affairs of the firm of the conduct of its business; or otherwise so conducts himself in matters relating to the business that it is not reasonably practicable for the other partners to carry on the business in partnership with him, A partner has in any way transferred the whole of his interest in the firm to a third part, The business of the firm cannot be carried on save at a loss, Or on any other ground which renders it just and equitable that the firm should be dissolved.
  16. 16. Exercise: Suit for Dissolution of partnership Draft a suit for Dissolution of partnership between Neha, Rita and Sita. The partnership deed was made on 10.4.2019 and was for the purpose of supplying hand sanitizer and face mask to various companies. Sita has lost trust on both his partners Neha and Rita as she thinks that they are doing similar business outside the Partnership.
  17. 17. Appeal from Original Decree under Order 41 of CPC Rule 1 Order XLI of Code of Civil Procedure 1908 "Form of appeal, What to accompany memorandum" (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the Judgment on which it is founded: Provided that where two or more suits have been tried together and a common Judgment has been delivered therefor and two or more appeals are filed against any decree covered by that Judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the Judgment. (2) Contents of memorandum- The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively. (3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.
  18. 18. Cont. Rule 2 Order XLI of Code of Civil Procedure 1908 "Grounds which may be taken in appeal" The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection set forth in the memorandum of appeal, but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule: Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.
  19. 19. Cont. Rule 3 Order XLI of Code of Civil Procedure 1908 "Rejection or amendment of memorandums" (1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there. (2) Where the Court rejects any memorandum, it shall record the reasons for such rejection. (3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment.
  20. 20. Cont. Rule 5 provides Stay by Appellate Court (1) An appeal shall not operate as a stay of proceedings under a decree or Order appealed from except so far as the Appellate Court may Order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause Order stay of execution of such decree.
  21. 21. Cont. Rule 30 provides Judgment when and where pronounced- (1) The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders. (2) Where a written judgment is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment is pronounced. Rule 31 provides Contents, date and signature of judgment- The judgment of the Appellate Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and, (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.
  22. 22. Cont. Rule 32 provides what judgment may direct The judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly. Rule 33 provides power of Court of Appeal The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees
  23. 23. Essentials of Appeal from Original Decree under Order 41 of CPC The Material Part
  24. 24. SAMPLE DRAFT
  25. 25. Cont.
  27. 27. Exercise The Civil Judge granted a decree of Rs.5 lakhs with interest to Tom against Jerry. Jerry wants to challenge the decretal amount on the ground of limitation amongst other grounds as well as the grant of interest at the rate of 18% per annum. Draft an Appeal against the said decree for Jerry.
  28. 28. UNIT-III
  30. 30. Application For Grant Of Bail The concept of bail, which is a basic part of the Indian criminal jurisprudence and it is well recognized principle among all the judicial systems of the world. Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. Bail for Bailable offences: section 436 of CrPC (If the offence alleged is bailable, then, the Accused is entitled for Bail as a matter of right) Bail for non-Bailable offences: section 437 of CrPC (Section 437, Criminal Procedure Code, deals with the powers of the court, to grant or refuse bail to person accused of, or suspected of the commission of any non- bailable offence) Application For Grant Of Bail Under Section 437 Of Code Of Criminal Procedure, 1973
  31. 31. General Principles of Criminal Pleading Nature & Gravity Previous records of the accused Statement in regard to flee from justice Object of injury or humiliation Claim from the Court
  32. 32. Contents Of The Bail Application The name of the magistrate court under whom the bail application is filed. The section of CrPC must be mentioned under which the application is moved. The name of the parties must be mentioned. The FIR number should be mentioned. The name of the police station in which the accused is in custody should be mentioned. The date on which the accused was taken into custody. The reason based on which the accused should be granted bail should be mentioned. The surety of accused not absconding if bail is granted should be mentioned. The accused will present before the court whenever required to be present. The accused will not leave the country without the permission of the court should be mentioned. The counsel in prayer should ask the court for granting the bail. The applicant should sign the bail application.
  33. 33. EXERCISE Draft an application for bail for ABC who has been accused of an offence u/s 124A.
  34. 34. Section125 CrPC An woman not lawfully married, is not entitled to maintenance u/s 125 CrPC. The marriage of a woman in accordance with the Hindu rites with a man. An order of interim maintenance u/s 125 CrPC may be passed by magistrate. for maintenance of wives, children and parents. If any person having sufficient means neglects or refuses to maintain-- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct:
  35. 35. Cont. Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means: Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub- section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. (2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each months 4[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. (If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wifes refusal to live with him.)
  36. 36. Cont… (4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. (Explanation.--For the purposes of this Chapter "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority and "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.)
  37. 37. Draft of application u/s 125 CrPC IN THE COURT OF PRINCIPAL JUDGE, FAMILY COURT, DELHI CRIMINAL COMPLAINT NO. _____ OF 2019 IN THE MATTER OF: Smt. ABC w/o Shri R Kumar R/o 123, Rani Bagh, Delhi Complainant Vs Shri Zee S/o Shri K Kumar R/o 134, Green Enclave, New Delhi Respondent PS: Karol Bagh Application under Section 125 of the Cr PC, 1973 claiming maintenance @ Rs.10000 per month in favour of the Complainant.
  38. 38. Cont. IN THE PREMISES MENTIONED HEREINABOVE, THIS HON’BLE COURT MAY PASS AN ORDER: a. Directing the Respondent to pay monthly maintenance of Rs. 25,000.00 (Rupees Twenty five Thousand Only) w.e.f March, 2012; b. Cost of the litigation of the present proceedings be also awarded in favour of the Complainant. Complainant Through (Advocate) • Body of the application • Prayer Place: Date:
  39. 39. EXERCISE The complainant/applicant ABC is the legally wedded wife of the Respondent Zee. ABC and Zee stayed together after their marriage and for the last two years. The matrimonial life of the ABC and Zee got disturbed on account of the illegitimate affair of Zee with a girl. ABC made best possible efforts to persuade the Zee to desist from indulging in an affair outside their wedlock. However, the same had no effect on the Zee. Rather, the behavior of the Zee towards ABC became rude and cruel as a consequence she had to leave the matrimonial home along with the legitimate son of the Zee and ABC. ABC made repeated attempts to join the Zee in the matrimonial home. ABC has no independent source of livelihood and as such is unable to maintain herself & her son. The son is a minor and is also staying with ABC. He is studying in DS, New Delhi, and his monthly expenditure including school fees, dresses etc. is more than Rs. 30,000. Draft an application for maintenance u/s 125 of CrPC.
  40. 40. Compounding of Offences by way of Compromise u/s 320 (i) CrPC Section 320 of the Code of Criminal Procedure, 1973 deals with compounding of offences. Section 320 (1) list down the offences which are compoundable at the interest of the parties. “to settle a matter by a money payment, in lieu of other liability.” Compounding of offences means the complainant and the accused persons agreeing to compromise i.e. the complainant can take back charges that are levied against the accused and in exchange the accused can give money for such compromise. Merely because an offence is compoundable under Section 320 CrPC, still discretion can be exercised by the court having regard to nature of offence.
  41. 41. Complaint under Section 138, Negotiable Instruments Act 138 Dishonour of cheque for insufficiency, etc., of funds in the account. When is the offence u/s 138 of Negotiable Instruments Act, 1881 committed? It is committed when a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank. A complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section 138.
  42. 42. Cont. The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if: (a) the dishonoured cheque is presented to the drawee bank within a period of three months from the date of its issue. (b) If the complainant has demanded payment of cheque amount within thirty days of receipt of information by him from the bank regarding the dishonour of the cheque and (c) If the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice. According to section 142(c) of the negotiable instruments act, 1881, no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.
  43. 43. Exercise Draft appropriate remedy on behalf of ABC Ltd. who was given a cheque of Rs. 10,00,000/- by XYZ but the same was not honoured by the SBI Bank. The Bank returned the cheque stating “insufficient funds”.
  44. 44. Application u/s 482 of Cr. P.C Section 482 of the Code Of Criminal Procedure, 1973 pertains to saving of inherent powers of High Court. Under Section 482 CrPC – “nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice”. This provision confers the HC with an inherent power to quash an FIR or a complaint, upon satisfaction of well-established parameters. It cannot be invoked with respect to any matter covered by the specific provision of the Code, or when there is another remedy available
  45. 45. Exercise Draft an application u/s 482 of Cr PC for having a FIR quashed in a matrimonial case where both the Ram and Radha, husband and wife have decided to peacefully live together after settling their dispute.
  46. 46. THANK YOU

Editor's Notes

  • Where the matter concerns penalties or any other uncertain amount, one cannot file a summary suit.
    When there is no written contract/agreement between the parties, then a normal suit for recovery has to be instituted.