DRAFTING OF PLEADING AND CONVEYANCING
- General Principles of Drafting and Relevant Rules
- Execution Petition
- Memorandum of Appeal and Revision
- Petition under Art. 226 and Art. 32 of the Constitution of India
- Criminal Miscellaneous Petition
- Bail Application
- Memorandum of Appeal and Revision
- Essentials of a Deed
- Sale Deed
- Mortgage Deed
- Lease Deed
- Gift Deed
- Promissory Note
- Power of Attorney
ORIGINAL - PETITION
ORIGINAL PETITION:- Petitions. or suits are interchangeable terms. However, in practice, the words 'petitions' and 'suits' are generally used to mean formal applications for seeking legal remedy. Suit of a civil nature is ordinarily tried in civil court. Every person has a right to bring a suit of a civil nature and civil court has jurisdiction to try an the suits a civil nature.
Petitions. or suits are interchangeable terms. However, in practice, the words 'petitions' and 'suits' are generally used to mean formal applications for seeking legal remedy. Suit of a civil nature is ordinarily tried in civil court. Every person has a right to bring a suit of a civil nature and civil court has jurisdiction to try an the suits a civil nature. Due to increasing litigation and delays in civil suits, parliament and state legislative created special courts and Tribunals with special enactments. The reason behind this exercise is for speedy disposal of cases of various types. For ex. Cases of ejectment in respect of urban buildings between the land lord and tenant are now dealt with by special courts created under various state legislations. Railway accidents claims are decided by railway claim Tribunals, claims by Industrial woken for payment of wages are entrusted to prescribed authorities. So is the case with the workman's compensation claims. In some states and in center also service tribunal have been created for adjudication of cases of public servants in disputes arising out of their employment, including dismissal, terminator of service, etc. At many places family courts have been established to deal with matrimonial disputes.
In such cases which are dealt with by special courts under special enactments the party aggrieved expected to approach such special courts or tribunal and the jurisdiction of the civil courts under sec. 9 CPC is barred. These tribunals are given various powers of a civil court while trying a suit under CPC through they are not regular civil courts. Very often the presiding officer of these tribunals courts are also presiding officer, of regular civil courts for ex. In family courts and Motor Vehicle Tribunal.
The provisions of the CPC do not as such necessarily apply to proceedings before these tribunals although proceedings are civil in nature. To what extent provisions of the CPC are applied to a particular civil proceeding depends on the statute under which the tribunal is created.
The fundamental rule of pleadings mentioned in the part I of this study material are broadly applicable even to civil proceedings, though because of the relatively summary nature of those proceedings the same rules may not apply in their full rigors. In may case the proceedings are commenced not through -Plaint" but through "petition".
Even though the fundamental rule should apply to a petition also, yet it is necessary for the pleader to study the statutory provisions carefully so that a blind adherence to the provisions of CPC may not land him in difficultly. For ex., Order 30, Rule I, permits a partnership firm to sue or to be sued in the name of the name of the firm. If the CPC has been applied as a whole to such civil proceedings, then of course, order 30 Rule 1 would also apply, but if the statute is silent on this point, then it would be necessary for all the partners the firm to sue or to be sued jointly in their individual names, instead of in the name of the firm. Like wise in respect of a claim petition before a service tribunal it may be necessary to implied the appointing authority of the public servant. In a suit before the civil court it is the Union of India or the state concerned which is required to be sued vide Art, 300 of the constitution of India. The appointing authority may be an authority subordinate to the Government but in a civil court it is not necessary or proper to impaled such and authority as defendant. These points of difference should be kept in mind while drafting pleading in such civil proceedings.
(1) Hindu Marriage Act. 1955
(2) Administrative Tribunals Act. 1988
(3) Consumer Projection Act. 1986
(4) Arbitration and Conciliation Act. 1996
(5) Motor Vehicle Act. 1988
(6) Indian Succession Act.
(7) Guardians and Wards Act, 1890
(8) Companies Act. 1956