Untaught Rules of Written Advocacy and Legal Drafting-Part II

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By Mr. Bhavya Nain[1]

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Introduction:

Written Pleadings are important. Lawyers do it. But, nobody talks about it. Everything is kept hush-hush, at-least in India. This the most unfortunate part of the whole process. In the last Article on legal drafting, available here[2], the author had given a brief introduction to the topic of written advocacy and legal drafting. Now, in the present second Article in the series, the author would like to discuss certain more basic grundnorms of legal drafting. The important thing to note is that these grundnorms are judicially recognised and are, in fact, derived from various judicial pronouncements given by the Courts in India. These grundnorms give the basic parameters of all written advocacy in India. These grundnorms are generally applicable to all kinds of drafting irrespective of form, format, court involved, subject matter of dispute, etc. These grundnorms are, however, indicative only. There may be need for deviances from them in certain cases. These grundnorms should be adopted by all who are interested in legal drafting in India. These grundnorms are not adequately publicised, till yet, and, hence, remain largely secret to the public in India. This article is a humble attempt to make them public.

There are basically seven grund norms of legal drafting. These are:-

Firstly, vague plea is no plea in the eye of law. Sometimes, it happens that the lawyer is fed with vague, imprecise and indefinite pleas by the client. In order to impress him or her, the lawyer includes these pleas in the pleadings. This is improper and incorrect approach to legal drafting. Nothing concrete can be achieved by doing this. To the contrary, adopting such a practice works to the detriment of the client because such vague pleas reduce the palpable and apparent merit of the case at hand. Vague pleas create distrust among the judges as to the veracity of the claims pleaded. Thus, this should be avoided at all costs and should be desisted from. Making sweeping claims and averments, without any legal basis, only annoys the Court. The drafting lawyer must understand this basic rule. In Santosh Malik v. Maharaj Krishan [DB] [2012 (127) DRJ 582], the Hon’ble Delhi High Court has held that a vague plea sans the particulars thereof would be no plea in the eyes of law and no issue can be settled between parties on said basis as required by the Code of Civil Procedure. This judgement has been used for indicative purpose only. The broader rule emphasized herein by the author is generally applicable to all kinds of pleadings.

Secondly, pleadings must not be frivolous, vexatious or scandalous. Sometimes, it happens that the lawyer drafting the pleadings does not work on showing the actual cause of action in the brief because of paucity of time. This approach is palpably wrong. The drafting lawyer needs to raise only those pleas which are not in the nature of being frivolous or vexatious. Incorporation of such pleas in the brief / petition only invites censure from the Court. There must be deliberate effort to not to include such pleas in the brief/ petition. In Pawan Kumar Dalmia V/s. HCL [RFA 180/2004; 235/2004; 239/2004, decided on 13.03.2012], the Delhi High Court had dismissed the suit on the ground that the same is frivolous and vexatious and without any legal basis. Caution should be adopted by the drafting lawyers so that their brief/ petitions do not suffer the same consequence.

Thirdly, pleadings should not be without legal basis. Sometimes, it happens that the drafting lawyer does not show the legal right which has been infringed in his/ her brief/ petition. Pleading the existence of a legal right and pleading the breach of the said legal right is mandatory. Sometimes, due to paucity of time or other intervening circumstances, the drafting lawyer ignores this requirement. This approach should be desisted from. In the T. Arivandandam’s case [AIR 1977 SC 2421],the Hon’ble Supreme Court introduced the concept of a real cause of action. Meaning thereby if the brief/ petition does not in actuality plead a real and subsisting cause of action, then the brief/ petition is liable to be rejected.

Fourthly, pleadings should not be contrary to evidence proposed. Many a times, it happens that the documentation involved in the case is humongous. If careful drafting is not adopted, there is a possibility that the pleadings in the brief/ petition may have some inconsistency with the documentary record. When the documentary record is produced in evidence, later on, the fact that the evidence and the pleadings are contradictory to each other goes to the detriment of the case. This eventuality must be prevented by adopting careful drafting after analysing all the record and meeting the proposed witnesses. In Manasa Housing Society V/s. Marikellaiah [AIR 2006 Kar 273], the Hon’ble Karnataka High Court lamented the eventuality above-mentioned.

Fifthly, pleadings should include averments to so as to incorporate all important proposed evidences. Many a times, it happens that the evidences are clearly in favour of a particular party, but because there are not necessary pleadings in that regard, the Court ignores and does not consider these evidences. This eventuality is one of the most common occurring fiascos in legal drafting. The drafting lawyer must prevent this eventuality. The said rule of pleading is based on a settled law that evidence beyond pleadings ought to be ignored. This dictum has also been reiterated by the Hon’ble Delhi High Court in Mahipal Pur Cooperative Society V/s. Prabhati [AIR 1986 Del 194] and by the Hon’ble Supreme Court of India in Kalyan Singh V/s. C.P. Joshi [2011 (11) SCC 786].

Sixthly, pleadings should not contain mutually destructive pleas. It is a settled law that inconsistent pleas may be incorporated in the brief/ petition. Generally, inconsistent pleas are taken in the alternative. However, inconsistent pleas which are mutually destructive of each other must not be taken up in the brief/ petition. This is because it is a settled law that no relief can be granted on the basis of mutually destructive pleas.

Seventhly, pleadings should not contain express or implied admissions. This rule is undermined by many. Many a times, it happens that while making an averment in the pleading, certain tacit admissions are made unknowingly. These admissions hugely damage the case of the client. The only way out here being the amendment of pleadings. This eventuality must be prevented. The drafting lawyer should review the pleadings time and again. Only on reviews, such tacit admissions can be removed. Only, thereafter, the pleadings should be filed. This rule of pleading is based on a settled law that a fact which has been admitted need not be proved by way of the positive evidence.

Conclusion:

To conclude, the basic rules of pleading must be known to all. The said grundnorms of the pleadings are like a hidden judicial/ legal code which is generally followed by the Courts and the senior lawyers, but not adequately discussed. The author has tried to explore the basic grundnorms of the pleadings. These are not exhaustive. However, they are important for anyone interested in legal drafting. These grundnorms should be used as a stepping stone for doing better legal drafting. The author has come to know of them through experience. But, there can be exceptions to them. The author will be dealing with other important principles of written advocacy and legal drafting in the forthcoming articles.

Link to Part I: http://lawlex.org/lex-bulletin/untaught-rules-of-written-advocacy-and-legal-drafting/8959


[1] Advocate, Supreme Court of India; and Former Law Clerk-cum-Research Assistant, Supreme Court of India.

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