1 BALLB SEMESTER 2
UNIT- III Drafting Legal Documents: Language and Structure 3.1 Skills & Techniques of Drafting and Pleading
DRAFTING
Drafting is an essence of any litigation ‘Legal Drafting’ can be defined as the crystallization and expression of a legal right, privilege, function, duty, or status in a definitive formatting. It’s a primary stage of any writing.
Drafting may be defined as the synthesis of law and fact in a language form [Stanley Robinson: Drafting Its Application to Conveyancing and Commercial Documents (1980); (Butterworths); Chapter 1, p.3].
This is the essence of the process of drafting. In other words, legal drafting is the crystallization and expression in definitive form of a legal right, privilege, function, duty, or status. It is the development and preparation of legal instruments such as, statutes, regulations, ordinances, contracts, wills, conveyances, trusts and leases, etc. The process of drafting operates in two planes: the conceptual and the verbal. Besides seeking the right words the draftsman seeks the right concepts. Drafting, therefore, is first thinking and second composing. Drafting, in legal sense, means an act of preparing the legal documents like agreements, contracts, deeds etc. A proper understanding of drafting cannot be realised unless the nexus between the law, the facts, and the language is fully understood and accepted. Drafting of legal documents requires, as a pre-requisite, the skills of a draftsman, the knowledge of facts and law so as to put facts in a systematised sequence to give a correct presentation of legal status, privileges, rights and duties of the parties, and obligations arising out of mutual understanding or prevalent customs or usages or social norms or business conventions, as the case may be, terms and conditions, breaches and remedies etc. in a self-contained and self-explanatory form without any patent or latent ambiguity or doubtful connotation. To collect, consolidate and co-ordinate the above facts in the form of a document, it requires serious thinking followed by prompt action to reduce the available information into writing with a legal meaning, open for judicial interpretation to derive the same sense and intentions of the parties with which and for which it has been prepared, adopted and signed.
IMPORTANCE OF DRAFTING IN LITIGATION:
helps in meeting the client’s goal and carry out the client’s instructions.
form an essential part of drafting and the same can be very helpful in litigation
Types of Legal Drafting (03 major types of legal drafting are:)
1. Functional
It’s having an interactional function and its purpose it to regulate and defines the legal relationship between two or more parties.
• Examples: sale deeds, mortgage deeds, Gift and will deed, rent deed, lease deed etc.
Language used should be clear, unambiguous, and friendly.
2
Role of the parties should be written clearly.
2. Persuasive
The layout of a persuasive draft is usually dictated by the line of arguments intended to emanate from the document and is designed to convince the reader to accept a certain viewpoint.
To achieve the desired goal, drafter needs to develop a logical and reasonable argument which supports his opinion.
Its language should be humble, convincing and requesting
Examples: Plaints, Written Statements, Memorandums of Appeal, Bail Applications etc.
3. Informative
This type of drafting is having a transactional function.
Its purpose is to transfer the information from one side to large number of readers.
Such drafts normally only contain the information necessary and useful for the readers.
Examples: Letters to Client, Legal Opinions, Acts & Bill of Parliament, notices, circulars etc.
The language used should be very formal an as per to the particular document.
Stages in Legal Drafting (3 major stages)
1. The Planning Stage
•Take all the necessary information from the client
•Analyze those instructions and compartmentalize them in a factual and legal context.
•Ascertain the purpose and objective behind creating the document.
•Research the relevant up-to-date law and form appropriate forms or precedents.
•Identify options
The Writing Stage
•Prepare a skeleton draft (first draft)
•Create ideas for the draft
•Ensure that all the information conceived during the Planning stage has been incorporated in the draft.
Revision Stage
•Re-analyze the instructions, factual situation
•Re-write to ensure coherence;
•Re-organize the material in a clear and user friendly manner;
•Edit the material; (proof reading, adding, deleting, modifying )
• Concentrate on spelling and grammar.
Create the final draft
3 Pleadings: Definition and Fundamental Rules
Pleadings are the backbone of legal profession. It is the foundation stone on which case of a party stands. The case of a party must be set out in the pleadings. Moreover, the relief cannot be claimed on the grounds which are not contained in the pleadings. The immaterial or vague or ambiguous matter should be avoided and pleadings should be properly framed. In Devki Nandan v.
Murlidhar,(1) it was held that a finding cannot be sustained which is based on no pleading and no evidence.
Pleadings are those materials or essential facts which are necessary to be averred in order to put forward a cause or to establish a defence in a judicial proceeding. It is the backbone of the suit upon which the entire edifice of the suit rests. It includes allegations and counter allegations made by one party and denied by the other. Etymologically, it means a formal statement to propound the cause of action or set up a defence against the case of the plaintiff.(2) According to Mogha,
“Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contentions will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer.”(3)
Order VI of the Code of Civil Procedure, 1908 deals with pleadings in general. Rule 1 defines pleading, while Rule 2 lays down the fundamental principles of pleadings.
As per Rule 1 of Order VI of the Code of Civil Procedure, 1908, pleading is defined as plaint or written statement. It is important to know here the meaning of plaint and written statement. Plaint is the statement of the plaintiff containing grievances in order to initiate an action in a court of law.
It helps the court to determine the real nature of the suit.(4) Written statement is the statement or defence of the defendant by which he either admits the claim of the plaintiff or denies the allegations or averments made by the plaintiff in his plaint.(5)
Object and Importance of Pleadings
In the leading case of Throp v. Holdsworth,(6) Jessel, M. R. stated:- “The whole object of pleadings is to bring parties to an issue, and the meaning of the rules (relating to pleadings) was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
4 The object of pleadings are – (i) to bring the parties to definite issues; (ii) to prevent surprise and miscarriage of justice; (iii) to avoid unnecessary expense and trouble; (iv) to save public time; (v)
to eradicate irrelevancy; and (vi) to assist the Court.
Importance of pleading cannot be underestimated. Jacob states, “Pleadings do not only define the issues between the parties for the final decision of the court at the trial, they manifest and exert their importance throughout the whole process of the litigation.” Pleadings provide a guide for the proper mode of trial. They demonstrate upon which party the burden of proof lies, and who has the right to open the case. They also determine the range of admissible evidence which the parties should adduce at the trial. They also lay down limit on the relief that can be granted by the Court.(7)
Fundamental or Basic Rules of Pleadings:- Rule 2 of Order VI of the Code of Civil Procedure, 1908, lays down the fundamental principles of pleadings
(1) Pleadings should state facts and not law:- It is the first fundamental rule of pleadings. It says that pleadings should state only facts and not law. In the case of Kedar Lal v. Hari Lal,(8) it was held that it is the duty of the parties to state only the facts on which they rely upon their claims. It is for the Court to apply the law to the facts pleaded. In the case of Gouri Dutt Ganesh Lall Firm v. Madho Prasad,(9) it was held that the law of pleading may be tersely summarized in four words;
“Plead facts not law.”
In Ram Prasad v. State of M.P.,(10) it was held that a mixed question of law and fact, however, should be specifically pleaded. Again in Union of India v. Sita Ram Jaiswal,(11)the Court held that a point of law which is required to be substantiated by facts should be pleaded with necessary facts.
(2) The facts stated in pleadings should be material facts:- It is the second fundamental rule of pleadings. It says that pleadings should contain a statement of material facts and material facts only.
Here one most important question is arose i.e. what is the meaning of the term “material facts”.
This term has not been defined in the Code of Civil Procedure, 1908. But the Court defined this term in many judicial pronouncements. Like in the case of Union of India v. Sita Ram,(12) the court said that “material facts” means all facts upon which the plaintiff’s cause of action or the defendant’s defence depends, or in other words, all those facts which must be proved in order to establish the plaintiff’s right to relief claimed in the plaint or the defendant’s defence in the written statement. Again in the case of Udhav Singh v. Madhav Rao Scindia,(13) the Supreme Court said that the term material fact means “All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts.”
5 Again in Virender Nath v. Satpal Singh,(14) the Supreme Court held that:- “The phrase ‘material facts’ may be said to be those facts upon which a party relies for his claim or defence. In other words, ‘material facts’ are facts upon which the plaintiff’s cause of action or the defendant’s defence depends. What particulars could be said to be ‘material facts’ would depend upon the fats of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by as the party.” In the same case the Supreme Court also said:- “A distinction between ‘material facts’ and ‘particulars’, however, must not be overlooked. ‘Material facts’ are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. ‘Particulars’, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. ‘Particulars’ thus ensure conduct of fair trial and would not take the opposite party by surprise.” The Supreme Court further said that whether a particular fact is or is not a material fact which is required to pleaded by a party depends on the facts and circumstances of each case.
(3) Pleadings should not state the evidence:- It is third fundamental rule of pleadings. It says that pleadings should contain a statement of material facts on which the party relies but not the evidence by which those facts are to be proved. The facts are of two types:- (a) Facta probanda- the facts required to be proved (material facts); and (b) Facta probantia- the facts by means of which they are to be proved (particulars or evidence).
The pleadings should contain only facta probanda and not facta probantia. The material facts on which the plaintiff relies for his claim or the defendant relies for his defence are called facta probanda, and they must be stated in the plaint or in the written statement, as the case may be. But the facts or evidence by means of which the material facts are to be proved are called facta probantia and need not be stated in the pleadings.
(4) The facts in pleadings should be stated in a concise form:- It is the fourth and last fundamental rule of pleadings. It says that the statements in pleadings should be stated in a concise and in brief form. In Virendra Kashinath v. Vinayak N. Joshi,(15) The words “in a concise form” are definitely suggestive of the fact that brevity should be adhered to while drafting pleadings. Of
6 course, brevity should not be at the cost of excluding necessary facts, but it does not mean niggling in the pleadings. If care is taken in syntactic process, pleadings can be saved from tautology.
Conclusion
Pleadings are the backbone of legal profession. It is the foundation stone on which case of a party stands. The case of a party must be set out in the pleadings. Pleadings do not only define the issues between the parties for the final decision of the court at the trial, they manifest and exert their importance throughout the whole process of the litigation. Pleadings provide a guide for the proper mode of trial. They demonstrate upon which party the burden of proof lies, and who has the right to open the case. They also determine the range of admissible evidence which the parties should adduce at the trial. They also lay down limit on the relief that can be granted by the Court.
Four fundamental rules of pleading are; (1) Pleadings should state facts and not law; (2) The facts stated in pleadings should be material facts; (3) Pleadings should not state the evidence; and (4) The facts in pleadings should be stated in a concise form. The main points to be considered before a party is allowed to amend his pleading are: firstly, whether the amendment is necessary for the determination of the real question in controversy; and secondly, can the amendment be allowed without injustice to the other side.
Endnotes
1. AIR 1957 SC 133.
2. Srivastava K. K. Dr., The Law of Pleadings, Drafting and Conveyancing, 8th Edition, Central Law Agency, Allahabad, 2014, p. 1.
3. Mogha’s Law of Pleadings (1983) at p. 1.
4. Srivastava K. K. Dr., The Law of Pleadings, Drafting and Conveyancing, 8th Edition, Central Law Agency, Allahabad, 2014, p. 126.
5. Ibid, p. 141.
6. (1876) 3 Ch D 637.
7. Takwani C. K., Civil Procedure with Limitation Act, 1963, 7th Edition, Eastern Book Company, Lucknow, 2013, pp. 194-195.
8. AIR 1952 SC 47 at p. 51: 1952 SCR 179.
9. AIR 1943 PC 147: 209 IC 192.
10. (1969) 3 SCC 24: AIR 1970 SC 1818.
11. (1976) 4 SCC 505: AIR 1977 SC 329.
12. Ibid.
7 13. (1977) 1 SCC 511: AIR 1976 SC 744.
14. (2007) 3 SCC 617: AIR 2007 SC 581.
15. (1999) 1 SCC 47 at p.52: AIR 1999 SC 162 at p. 165.
PLAINT
Order VII, Rule 1 1908 of the CPC lays down the Essentials,) which must be stated in a Plaint:
1.a The name of the court in which a suit is brought;
1.b The name, description, and place of residence of the Plaintiff;
1.c The name, description, and place of residence of the Defendant, so far as they can be ascertained;
1.d Where the Plaintiff or Defendant is a minor or a person of unsound mind, a statement to that effect;
1.e The facts constituting the cause of action and when it arose;
1.f The fact showing that the court has jurisdiction;
1.g The relief which the plaintiff claims;
1.h Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and
1.i A statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits.
All Plaints can be virtually divided into the following:
Heading and Cause-title
Body
Prayer
Heading and Cause Title
•
The Heading includes the description of the court and cause-title, including the name, age and the place of residence of both parties, along with respective descriptions as the Plaintiff and Defendant.Body
•The body of the Plaint could be sub-divided into the following :
8
•The introductory part, being explanatory statements, introducing the substantial or material averments of the Plaint following the matter of inducement;
•All the material facts and material particulars;
•Statements disclosing a cause of action; and •Statements regarding jurisdiction of the Court, either pecuniary and/or territorial and including the valuation of the suit for the purpose of court-fee.
Prayer
•The reliefs, which the Plaintiff is entitled to, depend on the prayers made in the Plaint, and therefore, relief has to be sought accurately. It may also be noted that even if the Plaintiff fails to establish her own case, she may get relief on the basis of the case made out be the Defendant.
Plaint Structure
Name of the court in which the suit is filed indicated at the top of the first page.
IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION), ALLAHABAD (Just below the name of the court, a space should left for the number of the suit.)
Suit No. 227/2017
Therefore the names of the parties to the suit with all necessary particulars should be given. For ex.:
AS s/o CD aged…………yrs. ……Occupation…………. Resident of... plaintiff Versus
MN, s/o OP aged ……….Yrs………….,occupation……….. Resident of ………. Defendant If there are more plaintiff or defendant than the names of all plaintiffs/and defendant should be given in plaint as plaintiff No. 1/defendant NO.1 and so on.
After the names of the parties the title of the suit should be given for ex.
"suit for specific performance and damages".
Or
"Suit for Recovery of Rs………as of house-rent Or
"Suit for damages for malicious prosecution"
Then follows the body of the suit/plaint all paragraphs should be numbered consecutively. The body of the plaint consists of two parts (1) substantive part (2) formal part.
(1) Substantive parts of the plaint consist of the portion of the plaint in which a statement of all facts constituting the cause of action for the suit has to be stated. Those facts shall consist of such
particulars as are necessary to state to obtain "the relief” in the suit. The plaintiff seeking relief for distinct claims or causes of action founded upon separate and distinct grounds shall state all of them distinctly and separately.
(2) Formal part of the plaint shall state the following essential particulars:
9 (i) date when the cause of action arose.
(ii) Statement showing that the court has jurisdiction;
(iii) Statement of the value of the suit for the purpose of jurisdiction and court fees and it should be stated that the necessary court fee has been affixed/paid.
(iv) Every relief sought for by the plaintiff should be accurately worded. The plaintiff can claim more than one relief, in the suit.
Signature of the plaintiff along with the signature of the advocate.
At the foot of the pleading, the plaintiff should /or anyone else, who is acquainted with the facts of the case, should make verification.
Here is a SAMPLE PLAINT as an example
IN THE COURT OF CIVIL JUDGE (SENIOR DIVISION) MEERUT Suit No.347/2012
Mr. A, son of B, aged about 40 years, R/O civil Lines, Meerut...
Vs
Mr. P, S/O Q, aged about 45 years, R/O civil Lines, Meerut...
The abovementioned Plaintiff humbly submits as under:
1. That the plaintiff is the owner of a house situated in Civil Lines, Meerut city, and defendant is a tenant since 1st January, 2011 in that house at Rs. 5000 per month. A rent note of which was executed by the defendant dated 30th December, 2011 in favour of the plaintiff undertaking to pay the said rent.
2. That the tenancy of the defendant starts on 1st of every month and ends at the last date of the month according to English calendar.
3. That the defendant did not pay the rent since Ist February , 2012 and notice had been served through counsel to defendant to pay the said rent and evicting the house within 30 days.
4. That the notice had been served on defendant on the date of 5th September, 2012 but the defendant did not give any rental amount nor did he leave the house.
5. That the plaintiff has stopped the tenancy of the defendant by giving him the court notice dated 5th September, 2012.
6. That from 6th of September, 2012, the possession of the defendant should be presumed as being a trespasser and he is liable to compensate the plaintiff on account of use and possession of a house.
7. That the causes of action arose on 5th September, 2012 when the notice has been served to the defendant and again on the First of every month and the court has jurisdiction over the matter.
8. That the value of the suit for purposes of court fee and jurisdiction is Rs. 60,000.Hence the court has jurisdiction.
9. That the Plaintiff humbly prays that a decree for the payment of Rs.60,000 with cost of the suit be passed in favour of the plaintiff and against the defendant, and the court should pass the
10 decree of ejectment in favour of plaintiff of the house. Any other relief which court deems fit in interest of justice.
Verification
I, Mr. A the plaintiff, hereby verify that the contents of paras 1 to 6 of this plaint are true to my personal knowledge and contents of paras 7 to 9 are believed to be true upon the advice of the counsel.
Verified at Meerut on this 15th day of December 2012.
Date:...
Place
Signature Plaintiff Through Counsel
WRITTEN STATEMENT
A Written Statement can be described as the Defendant’s reply to the Plaintiff’s Plaint, dealing with all the material facts set out in the Plaint. When a Defendant files a Written Statement to the suit, it discloses her defence, and the suit enters into a contest, and invites the Court to adjudicate upon the dispute. All the rules applicable to pleadings generally, and to the Plaint, are also applicable to the Written Statement.
Written statement is the defense of the defendants. A 'defense' called the written statement ,in general this is a reply of plaint ,in which defendant deny or admit the each and every allegation or facts given in the plaint. Denial or admission must be Para wise and clear. In the written statement defendant can put his case also under the heading additional plea, and can states new facts or ground which is necessary to defeat the opponent. If defendant want to put his own claim against the plaintiff he can put it by way of set- off and counterclaim u/o 8 Rule 6 and 6A of C.P.C.
NOTE:-The facts which remain unanswered by the defendant, it will be presumed that the said fact was admitted by the defendant. In general the fact which is taken to be admitted need not be proved. Pleading must be unambiguous clear and correct
"if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved." (v) (2010) 10 Supreme Court Cases 512 (MAN KAUR v. HARTAR SINGH SANGHA):-
11 Drafting of Written Statement:
Order VIII provides for the filing of a written- statement, the particulars to be contained therein and the manner of doing so. It requires what a written statement should contain. Before drafting the written statement it is the duty of the defendant to study the plaint thoroughly and all the documents submitted by the plaintiff with the plaint in support of his claim. After the thorough study of the plaint and supported documents a para wise answer of the plaint can be prepared. Order VIII of the Code of Civil Procedure deals with the written statement, set off and counterclaim.
Time for Filing of Written Statement (Order VIII Rule 1) : The text of Order VIII, Rule 1, as it stands now, reads as under :-
"l. Written Statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defense and maximum time limit from the date of service of summons is ninety days.
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons". Order, 8 Rule 1
Duty of defendant to produce document upon which relief is claimed or relied upon by him (Order VIII Rule 1A.):-
"(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counterclaim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
(3) document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to documents-
(a) produced for the cross-examination of the plaintiff s witnesses, or (b) handed over to a witness merely to refresh his memory."
NOTE:-
Order VII Rule 14 of the Civil Procedure Code (CPC) deals with the documents of the Plaintiff and Order VIII Rule 1-A of the CPC with regard to the documents of the Defendant. Besides this, Order XIII deals inter alia with the production of documents. This relates to production by both the parties, the Plaintiff and the Defendant. Under Order XIII Rule 1 of the CPC, the original documents are
12 required to be produced by the parties and received by the Court.
New Facts Must be Specially Pleaded (Order VIII Rule 2.):-
Order VIII,Rule 2. requires that the defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the -transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise. or would raise issues of fact not arising out of the plaint, as for instance,fraud, limitation, release,payment, performance, or facts showing illegality.
Denial to be Specific (Order VIII Rule 3.):-
Order VIII Rule 3. requires that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff. but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
"if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an
Inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved." (v) (2010) 10 Supreme Court Cases 512 (MAN KAUR v. HARTAR SINGH SANGHA):-
Evasive denial (Order VIII Rule 4.):-
Rule 4 of Order VIII of C.P.C. says that where a defendant denies an allegation of fact in a plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
Specific Denial(Order VIII Rule 5.):-
[(1)] Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against person under disability.
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
[(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
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(3) In exercising its discretion under the proviso to sub- rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.]"
Note: It is settled law that denial for want of knowledge is no denial at all. The provisions contained in Order 8 Rule 5 require pleadings to be answered specifically in written statement. 2016 (3)UAD 30 SC Muddasani venkata narsaiah (D) through LRS versus Muddasani sarojana.
Note: Procedure Where Written Statement by the Defendant is not Filed.
"Order VIII provides the procedure where written statement by the defendant is not filed. Order VIII Rule 5(2)(4) provides that where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of facts contained in the plaint and after pronouncing the judgment a decree is required to be drawn up in accordance with such judgment. Under Order VIII Rule 10 where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. This rule gives a discretion to the Court either to pronounce the judgment against the defendant or make such order in relation to the suit as it thinks fit."
While interpreting Order VIII, this Court in Balraj Taneja & Another v. Sunil Madan & Another [(1999) 8 SCC 396] held that merely because written statement is not filed the Court should not proceed to pass judgment blindly and observed thus:-
"The court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant, it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the courts satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement."
Supreme Court of India
14
Case Diary
475-1. Section 172 CrPC requires that every Police Officer making an investigation should enter day by day his proceedings in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation.
2. The case diary proper, which should contain the details mentioned above, should be written in Form 64.
3. Statements of witnesses examined by the Police during investigation should be recorded in Form 65 and should be attached to the case diary for the day.
4. There will be a docket sheet in Form 66, for each case file.
476-1. Case diary is a confidential and privileged document. Though the accused has no right to look into it, the court may look into the diary. However if the police officer refreshes his memory while giving evidence by looking into the case diary, the accused is entitled to look into that portion as referred by the police officer and may use it for contradicting the police officer.
2. The Investigating Officer and his superiors shall ensure the physical safety of the case diary as well as its contents. Any leakage of the contents to any person other than authorized by law leads to undesirable consequences and will be detrimental to prosecution. They should not permit access to any unauthorized person particularly the accused or their agents or their counsel. The officer who has custody of case diaries either as an IO or a superior officer supervising investigation should ensure that it is handed over to their successors in office. The access to the case diaries is limited only to the IO, the superior officers and the concerned legal officers who are in charge at a given time and not to others.
477. The following instructions shall be observed in writing case diaries.
1. Every case diary should be in the Form 64 and contain the following information noted in the margin:
A. date and hour of taking action;
B. date of report of the case;
15 C. name of the complainant or informant;
D. names of accused known, if any;
E. property lost;
F. property recovered;
G. date and last page of the previous case diary, if the case diary is not the very first one;
H. name of the deceased, if any, and I. names of witnesses examined.
2. The first Case Diary should commence with a brief summary of the FIR, the time of receipt of the complaint, delay if any, in starting for the scene, the time of departure for and arrival at the scene, and description and plan of the scene as prescribed in Order 420 and 421 of Chapter 22. In cases where there is no scene as such like in Financial Crimes, the records and places where such records or data recording, storage or retrieval systems are located, the method of crime as reflected at such places, objects, computers, documents etc. and the plan or sketch or diagram representing the crime scene so to say may be described or drawn up as is possible.
3. A statement of circumstances ascertained through the investigation at the place or places visited by the investigating officer, and the date and hour of closing the investigation shall be noted. Every step taken by the IO shall be mentioned as concisely as possible. Every clue obtained, even if at the time it appears likely to be of no value, houses searched with reasons for the search and the names of witnesses to the search, property recovered, its description and place where it was found, arrests, information obtained which is likely to prove of value, and methods adopted by the suspects/accused are among the things to be mentioned in the case diary. The substance of the statements of witnesses shall find place in the case diary. The IO shall record in Form 65 the statements of persons examined by him in detail separately and attach to the case diary of the day as Part II.
4. The case diary shall be written incorporating the investigation done on each day.
Statements of witnesses should be reduced to writing on the spot in Form 65. If it is not possible they should be written in the IO’s note book, and transcribed in the prescribed form as soon as he returns to the Station House. If, for any unavoidable reason, notes had to be taken on separate sheets of paper, these should not be destroyed after the case diary is written but preserved in the case file.
5. Case diaries and statement of witnesses will be duplicated by carbon process, or by photocopiers. The original is retained in the station and the other sent to the SDPO concerned who shall deal with the case diaries in the manner prescribed. In cases investigated by Sub-Inspector who is also SHO of Police Station the case diaries will be directly forwarded to SDPO concerned who in turn shall, after scrutiny and necessary instructions to the I.O., dispose them off as prescribed.
16 6. In the concluding diary, the investigating officer shall record a summary of the reasons which have guided his final decision in the case. If he considers that there is no case, his reasons will, of course, be more detailed and fuller than the one sent up for trial.
7. The names of informers need not be entered in the diary and no court can compel an investigating officer to disclose the name of an informer.
8-A. When a case is reported and police reach the scene, they should guard the scene and take other measures to apprehend or pursue the offenders.
B. When a case is transferred from one investigating officer to another, the officer taking over the investigation shall take charge of the diary, noting therein the date of assuming charge of the investigation of the case.
C. The question, whether it is necessary to re-examine the witnesses already examined and record their statements when a subsequent investigation is taken up by another officer, is often raised. Ordinarily, such further investigation is taken up in the following instances:
When a case was first investigated by a Head Constable or a Sub-Inspector and is later taken up by his superior officer, i.e., the Sub-Inspector or the Inspector;
When local Police or Traffic Police or Railway Police takes over the investigation from one another on point of jurisdiction;
When a case is reinvestigated by the Crime Investigation Department.
D. In such cases, it is incumbent on the succeeding investigating officer to verify the investigation made by the previous I.O. and to re-examine all the important witnesses already examined, to ascertain the facts and circumstances of the case.
But, as regards the recording of their statements, law does not require the investigating officer to reduce such statements into writing. The Andhra Pradesh High Court has observed that, “Courts will not expect a Police Officer to stultify his investigation for the purpose of making such a record”. It is, therefore, enough if the second investigating officer, in case he is the superior to the first investigating officer, re-examines witnesses with reference to their previous statements already on record and certifies to their correctness. If any additional facts are spoken to by any witness, the second investigating officer will have to record those facts and note such other facts as may be necessary in clarification of the facts and omissions in the statement already recorded. However, in a case where the statement recorded by the first investigating officer is devoid of essential details or has omissions or defects, it is advisable for the second investigating officer to record the statement once again in detail. In such case both the statements will remain on record and supplied to the accused.
E. In a case taken up by the CID, the I.O. of the CID is expected to verify and re- investigate the entire case and not merely to continue the investigation already done by the local Police Officer. To that end, it is necessary that he should not only re-examine the witnesses but also record their statements in full. The fact that
17 the recording of such statements may lead to possibility of contradictions and deviations in the statements of witnesses and may cause inconvenience to the police in furnishing copies to the accused cannot be valid and lawful ground for evading it.
9. Those who, under the orders and directions of the investigating officer, assist him by making any enquiries, do not thereby become investigating officers under Chapter 12 of CrPC. Therefore, it is not necessary for them to write case diaries under section 172 of CrPC. The result of any enquiries such officers make or action they take pursuant to the orders or instructions of the investigating officer will be communicated by the former to the latter by means of a special report. Head Constables will also make necessary entries in their notebooks. The investigating officer shall incorporate the gist of such special reports in his case diary u/s 172 CrPC.
10. In inquiries under section 174 CrPC relating to suicide and accidental deaths, statements of witnesses examined during the inquest will be recorded separately and attached to the inquest report. However, in a case where it has not been clearly established that it is a suicidal or accidental death, though the panchayatdars at the inquest have so opined, a case diary should be written discussing the evidence gathered and available during the inquest and the grounds for treating the case as an accidental or suicidal death not warranting investigation. When a Head Constable holds an inquest, the Sub-Inspector should subsequently verify the investigation, and the result of such verification should be embodied by him in a case diary. A case diary should also be written summarizing the result of the postmortem examination, if conducted.
11. In order to report the progress of trials in courts, case diaries should be written, reporting details of all hearings and adjournments, the witnesses examined at each hearing, how each of them fared, gist of arguments of defence and prosecution, Court observations or orders and other matters of interest, if any, particularly with reference to their statements before police earlier and other material particulars including name and designation of the Police Officer who attended the Court.
12. Remands should be applied for along with case diary. Sub- Section (1) of Section 167 of CrPC requires a copy of the case diary to be sent when remand is sought. The investigating officer should, therefore, prepare an additional copy of the case diary, when he is aware that he will have to send a prisoner for remand. The statements recorded under section 161 Cr.PC till then should also be enclosed to the case diary.
13. Case diary forms should be used for applying to Magistrates for warrants of arrest or search, for proclamations and other orders connected with investigation and for forwarding search lists provided these communications refer to registered cases.
Ordinarily, the memorandum form will be used.
18 14. Case diaries should also be written in cases, referred by a Magistrate to the police for
investigation under section 155, 156 or 202 of CrPC.
SUMMARY (Case Diary)
Section 172 Cr.P.C. lays down that every police officer making an investigation should maintain a diary of his investigation. Each State has its own police regulations or otherwise known as police standing orders and some of them provide as to the manner in which such diaries are to be maintained. These diaries are called case diaries or special diaries. Like in Uttar Pradesh, the diary under section 172 is known as ‘special diary’ or ‘case diary’ and in some other States like Andhra Pradesh and Tamilnadu, it is known as ‘case diary’. The Section itself indicates as to the nature of the entries that have to be made and what is intended to be recorded is what the police officer did, the places where he went and the places which he visited etc. and in general it should contain a statement of the circumstances ascertained through his investigation. Sub-section (2) is to the effect that a criminal court may send for the diaries and may use them not as evidence but only to aid in such inquiry or trial. The aid which the court can receive from the entries in such a diary usually is confined to utilising the information given therein as foundation for questions to be put to the witnesses particularly the police witnesses and the court may, if necessary, in its discretion use the entries to contradict the police officer who made them. Coming to their use by the accused, Sub-section (3) clearly lays down that neither the accused nor his agents shall be entitled to call for such diaries nor he or they may be entitled to see them merely because they are referred to by the courts. But in case the police officer uses the entries to refresh his memory or if the court uses them for the purpose of contradicting such police officer then provisions of Section 161 or Section 145, as the case may be, of the Evidence Act would apply.
Section 145 of the Evidence Act provides for cross-examination of a witness as to the previous statements made by him in writing or reduced into writing and if it is intended to contradict him by the writing, his attention must be called to those parts of it which are to be used for the purpose of contradiction. Section 161 deals with the adverse party's rights as to the production, inspection and cross-examination when a document is used to refresh the memory of the witness. It can therefore be seen that the right of accused to cross-examine the police officer with reference to the entries in the General Diary is very much limited in extent and even that limited scope arises only when the court uses the entries to contradict the police officer or when the police officer uses it for refreshing his memory and that again is subject to the limitations of Sections 145 and 161 of the Evidence Act and for that limited purpose only the accused in the discretion of the court may be permitted to peruse the particular entry and in case if the court does not use such entries for the purpose of contradicting the police officer or if the police officer does not use the same for refreshing his memory, then the question of accused getting any right to use the entries even to that limited extent does not arise.
19 ASSIGNMENT : 2
Draft a plaint, giving details, in suit for recovery of damages for injuries caused by negligent driving car?
Suggested Readings:
1.
