Understanding the Basics of Litigation Drafting (LITIGATION DRAFTING 1)

Drafting is an essential skill for lawyers. Law students and junior lawyers who wish to pursue litigation practice must first acquire essential drafting skills. Drafting and Arguments are two interdependent functions in the trial. Poor drafting can lose your case no matter how good your arguments are.

The drafting of pleadings is an art. It demands a high degree of professional skill and professional knowledge, expertise and experience. It is not a child’s play as some young members of the Bar fancy. (Mogha, Law of Pleadings).

(A) LITIGATION DRAFTING

Litigation Practice involves different areas of practice, such as civil, commercial, and criminal. The Civil Procedure Code (CPC) and Bharatiya Nagarik Suraksha Sanhita (BNSS) (Old statutes CrPC) are procedural laws that provide rules for the Drafting of Pleadings and various applications.

(1) Civil Litigation –

Pleadings are the base of civil litigation. CPC defines ‘Pleading’ shall mean plaint or written statement. The Orders 6, 7 and 8 of CPC deals with the law of pleadings. Order 6 provides general rules of pleadings. Order 7 provides rules for the drafting of Plaint and Order 8 provides rules for the drafting of a Written Statement. Further Appendix A of CPC provides various forms of Pleadings.

A thorough understanding of the above rules is essential for the drafting of pleadings.

Apart from the pleadings, there are different forms of drafting required in civil litigation such as drafting of miscellaneous applications required during trial, drafting of appeals, references and revision etc.

(2) Criminal Litigation

The BNSS does not prescribe any rules for the drafting of pleadings. There are standard formats used for drafting of Criminal Pleadings. BNSS provides provisions for various miscellaneous applications used during trials, appeals, revisions etc.

(B) THINGS TO BE CONSIDERED BEFORE DRAFTING

1. Understand the rules of drafting given in Procedural Laws and Special Statutes
2. Thoroughly Understand the facts of the case
3. Read and Research Relevant Laws and Precedent
4. Finalise all relevant things and Draft Clearly and Precisely

(C) DIFFERENT TYPES OF DRAFTING USED IN LITIGATION

There are different types of drafting used in various courts from trial courts to higher courts and tribunals. Legal Practitioners require a thorough understanding of drafting used in different matters.

(1) TRIAL COURTS –

Trial Court drafting includes drafting in Civil and Criminal Matters.

Civil Matters

1. Legal Notice
2. Plaint
3. Written Statement
4. Written Arguments
5. Interlocutory Applications
   • Example – Application under Order 39 Rule 1&2 of CPC
6. Miscellaneous Applications under CPC
   • Example – Application for Rejection of Plaint (Order 7 Rule 11)
7. Appeals
   • Appeals from Decree
   • Appeals from Order
8. Reference, Review and Revisions

Criminal Matters

1. Complaint to Police Authorities
2. Applications to Jail Authorities
3. Private Complaint to Magistrate
4. Bail – Anticipatory Bail Application, Regular Bail Application, Applications for Relaxation or Modification of Bail and All Other Applications Concerning Bail
5. Quashing Petition – FIR/Proceedings
6. Protest Petition
7. Miscellaneous Applications under BNSS
   • Examples –
   • Petition for transfer of case (S. 447 of BNSS)
   • Application for withdrawal of Case
   • Application for Discharge (S. 250 of BNSS)
   • Etc.
8. Written Arguments
9. Petitions under Special Criminal Statutes
   • Example – Petition under PWDVA 2005 to Magistrate
10. Appeals
11. Reference and Revision

(2) HIGH COURTS

The High Court is the highest judicial court in the state. The High Court enjoyed the following Jurisdiction – Original Jurisdiction, Writ Jurisdiction, Appellate Jurisdiction and Supervisory Jurisdiction. There are five High Courts in India that have Pecuniary Original Side Jurisdiction.

The High Court follows provisions of CPC and BNSS along with Practice Rules framed by High Courts. For example – the Bombay High Court has framed appellate side rules (1960) and original side rules (1980).

(a) APPELLATE SIDE OF HIGH COURT

The drafting of the following matters is required to practice at the appellate side of the High Court - 

Public Interest Litigations (PIL)

Civil Matters

1. Writ Petitions under Articles 226 and 227 of the Constitution
2. Civil Writ Petitions
3. Appels –
   • First Appeal (S. 96 of CPC)
   • Second Appeal (S. 100 of CPC)
   • Appeal from Order
4. Civil References
5. Civil Revision Applications
6. Civil Contempt
7. Civil Miscellaneous Applications
8. Applications and Petitions under Special Statutes

Criminal Matters

1. Writ Petitions
2. Criminal Writ Petitions
   • Examples –
   • Applications for quashing of FIR, Charge Sheet and order directing investigation under section 175 (3) of the BNSS
   • Criminal Writ Petitions and Criminal Applications u/s 528 of BNSS
3. Bail – Anticipatory Bail Application, Regular Bail Application, Applications Relaxation or Modification Of Bail And All Other Applications Concerning Bail
4. Miscellaneous Applications under BNSS
   • Example – Application U/S 447 of BNSS (Transfer Of Case)
5. Criminal Appeal
   • Applications for Leave To Appeal
   • Conviction Appeals
   • Criminal Appeals against acquittal
6. Criminal Revision Applications
7. Criminal Contempt Petition

(b) ORIGINAL SIDE OF HIGH COURT

The drafting of the following matters is required to practice at the original side of the High Court.

1. Public Interest Litigations (PIL)
2. Writ Petition
3. Civil Writ Petitions
4. Appeals, References and Applications
5. Criminal Contempt Petitions
6. Suits & Matters
   • Examples –
   • Summary Suits
   • Administration Suits
   • Matters pertaining to Land Acquisition
   • Testamentary Matters
   • Matters arising out of the Guardians and Wards Act and Juvenile Justice Act
   • Commercial Disputes
   • Arbitration Matters
   • Company Act
   • Etc.

(3) SUPREME COURT

The Supreme Court is the highest court of appeal in India. The Supreme Court enjoyed following Jurisdiction – Original Jurisdiction, Writ Jurisdiction, Appellate Jurisdiction, Advisory Jurisdiction and Power of Judicial Review.

Drafting of matters used in the Supreme Court –

1. Petitions under Article 32 of the Constitution
2. Appeals
3. Petition under Original Jurisdiction (Article 131 of the Constitution)
4. Special Leave Petition (SLP) under Article 136 of the Constitution
5. Review Petition

(4) TRIBUNALS

There are different tribunals established under different statutes to handle particular types of matters. Rules for the drafting of applications used in tribunals governed by CPC and special statutes.

Examples –

• Motor Accident Claim Tribunal (MACT) – Motor Vehicle Act and Rules provide formats of petition used before MACT.
• Consumer Courts – Consumer Protection Act and Rules provide formats of different applications used before court.
• Debt Recovery Tribunals (DRT) – SARFAESI Act 2002 and RDB Act 1993 with Rules provide procedures and various applications used before DRT.