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  • INTERLOCUTORY APPLICATIONS (IA) | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back INTERLOCUTORY APPLICATIONS (IA) INTERLOCUTORY APPLICATIONS (IA) Interlocutory applications or interim applications are filed during the pendency or course of litigation. Such applications should be drafted with the same care as pleadings. Like pleading the (IA)should be both precise as well as brief and devoid of irrelevant matters. वार्ता आवेदन (IA) लंबित या मुकदमेबाजी के दौरान इंटरलोक्यूटरी आवेदन या अंतरिम आवेदन दायर किए जाते हैं। इस तरह के आवेदनों का मसौदा उसी तरह से तैयार किया जाना चाहिए जैसे कि दलीलें। जैसे (IA) की दलील सटीक और संक्षिप्त दोनों होनी चाहिए और अप्रासंगिक मामलों से रहित होनी चाहिए। INTERLOCUTORY APPLICATIONS (IA) Interlocutory applications or interim application are filed during the pendency or course of litigation. Such applications should be drafted with the same care as pleadings. Like pleading the lA's should be both precise as well as brief and devoid of irrelevant matters. Drafting of Interlocutory Application: The grounds on which application is moved should to the extent possible be stated in the words of the law under which the application is fitted. For ex., in an application for setting aside an expert decree against the defendant, the defendant should say that "the summons was not duly served" or that "the defendant was prevented by any sufficient cause from appearing when the suit was called on for the hearing". It is not advisable to employ a language different from the law under which the application is made. Like a plaint every application should have a heading and a title. The name of the Court should be given at the top and thereafter should follow the name of the applicant and the opposite party. When the . application is moved in connection with a suit or proceeding, the number and the cause title of that suit or proceeding alone should be given after the name of the court. The body of the application should be either in the form of petition: "The humble application of the plaintiff in the above mentioned suit, respectfully submits as follows' or it may be written like plaint. "Application for restituting under section 144, CPC by the defendant in the above mentioned suit The applicant humbly begs to submit as follows: It is not absolutely necessary that the law under which the application is filed should be given. Like pleadings facts in the application should be stated in brief and concise language. The application should be divided into paragraphs and one paragraph as far as possible should narrate one allegation except where two or more allegations are so connected with each other that it is better to give them in one paragraph. With some application affidavits are filed and if in such cases the facts are too long things need not be narrated in the application. They should only be narrated in the affidavit and in such cases the application should be worded in some such form: "For the reasons above in the annexed affidavit, the applicant prays that etc". The application should end with a prayer. The payer should be in the following form: "The applicant! Plaintiff! Defendant, therefore prays": etc. After prayer, should follow the signature of the applicant where law requires the verification, the application should also be verified. Examples of Interlocutory Applications Provided under CPC a) Application under order 6 Rule 17 CPC for amendment, b) Application under section 95 CPC for compensation for arrest or attachment before judgment on insufficient grounds. c) Application under sec. 144 for restitution. d) Application under sec. 151. e) Application under sec. 152 for amendment of judgments, decrees or orders, f) Application under order IX Rule4 for setting aside an order dismissing a suit for default of the parties, g) Application under order IX Rule 9 CPC for setting aside and order dismissing a suit for plaintiff's default, h) Application under order IX Rule I, for leave to deliver interrogatories, i) Objections under sec. 47 or sec.60. j) Objections under order XXI Rule 58, or order XXI Rule 89, 90, 91, or order XXI, Rule 98, k) Substitution applications under order XXII CPC. l) Application under order XXVIII Rule 1 or Rule 5, m) Applications under order XXIX. For an interim injunctions, application under order XL, for appointment of receiver, n) Application under order XLVII for review. DRAFTING Gallery www.lawtool.net Previous Next

  • Indian Laws, Bare Acts

    < Back THE CODE OF CIVIL PROCEDURE, 1908 (Act No. 5 of 1908) An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; it is hereby enacted as follows:- PRELIMINARY CHAPTER I SUITS IN GENERAL CHAPTER II EXECUTION CHAPTER III INCIDENTAL PROCEEDINGS CHAPTER IV SUITS IN PARTICULAR CASES CHAPTER V SPECIAL PROCEEDINGS CHAPTER VI SUPPLEMENTAL PROCEEDINGS CHAPTER VII APPEALS CHAPTER VIII REFERENCE, REVIEW AND REVISION CHAPTER IX SPECIAL PROVISION RELATING TO T HE HIGH COURTS NOT BEING THE COURT OF A JUDICIAL COMMISSIONER CHAPTER X RULES CHAPTER XI MISCELLANEOUS The First Schedule ORDER I-PARTIES OF SUITS ORDER II- FRAME OF SUIT ORDER III- RECOGNIZED AGENTS AND PLEADERS ORDER IV-INSTITUTION OF SUITS ORDER IVA CONSOLIDATION OF CASES ORDER V-ISSUE AND SERVICE OF SUMMONS ORDER VI-PLEADINGS GENERALLY ORDER VII- PLAINT ORDER VIII-WRITTEN STATEMENT, SET-OF AND COUNTER- CLAIM ORDER IX- APPEARANCE OF PARTIES AND CONSEQUENCE OF NON- APPEARANCE ORDER X-EXAMINATION OF PARTIES BY THE COURT ORDER XI-DISCOVERY AND INSPECTION ORDER XII-ADMISSION ORDER XIII-PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS ORDER XIV-SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON ORDER XV-DISPOSAL OF THE SUIT AT THE FIRST HEARING ORDER XV-A. STRIKING OFF DEFENCE IN A SUIT BY A LESSOR. ORDER XVI-SUMMONING AND ATTENDANCE OF WITNESSES ORDER XVIA-ATTENDANCE OF WITNESSES CONFINED OR DETAINED IN PRISONS ORDER XVII-ADJOURNMENTS ORDER XVIII- HEARING OF THE SUIT AND EXAMINATION OF WITNESSES ORDER XIX- AFFIDAVITS ORDER XX- JUDGMENT AND DECREE ORDER XXA ORDER XXI-EXECUTION OF DECREES AND ORDERS ORDER XXII- DEATH, MARRIAGE AND INSOLVENCY OR PARTIES ORDER XXIII- WITHDRAWAL AND ADJUSTMENT OF SUITS ORDER XXIV- PAYMENT INTO COURT ORDER XXV-SECURITY FOR COSTS ORDER XXVI-COMMISSIONS ORDER XXVII-SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERSR IN THEIR OFFICIAL CAPACITY ORDER XXVII-A SUITS INVOLVING A SUBSTANTIAL QUESTION OF LAW AS TO THERINTERPRETATION OF THE CONSTITUTION OR AS TO THERVALIDITY OF ANY STATUTORY INSTRUMENT ORDER XXVIII-SUITS BY OR AGAINST MILITARY OR NAVAL MEN ORAIRMEN ORDER XXIX- SUITS BY OR AGAINST CORPORATIONS ORDER XXX- SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN ORDER XXXI-SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS ORDER XXXII [ORDER XXXIIA-SUITS RELATING TO MATTERS CONCERNING THE FAMILY ORDER XXXIII- SUITS BY INDIGENT PERSONS ORDER XXXV- INTERPLEADER ORDER XXXVI-SPECIAL CASE ORDER XXXVII-SUMMARY PROCEDURE ORDER XXXVIII-ARREST AND ATTACHMENT BEFORE JUDGMENT ORDER XXXIX-TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS ORDER XL- APPOINTMENT OF RECEIVERS ORDER XLII-APPEALS FROM APPELLATE DECREES ORDER XLIII-APPEALS FROM ORDERS ORDER XLIV-[432][APPEALS BY INDIGENT PERSONS] ORDER XLV- APPEALS TO THE SUPREME COURT ORDER XLVI-REFERENCE ORDER XLVII- REVIEW ORDER XLVIII-MISCELLANEOUS Order L PROVINCIAL SMALL CAUSE COURTS ORDER LI- PRESIDENCY SMALL CAUSE COURTS Previous Next

  • Re South of England Natural Gas and Petroleum Co. Ltd. 1911

    Re South of England Natural Gas and Petroleum Co. Ltd. 1911 Re South of England Natural Gas and Petroleum Co. Ltd. 1911 FACT: The shareholders of the company had received copies of the Prospectus with the title that clearly specified that it is meant for private circulation. This was not advertised to the public. JUDGEMENT: The court ruled that the prospectus was a public oer of shares despite the indication that described it as private circulation only.

  • RAMVIR v. STATE OF U.P. (A.M. Sapre, J.) (2019)

    RAMVIR v. STATE OF U.P. (A.M. Sapre, J.) (2019) RAMVIR v. STATE OF U.P. (A.M. Sapre, J.) (2019) 2 Supreme Court Cases 237 (BEFORE ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.) 237 I RAMVIR Versus Appellant; STATE OF UTTAR PRADESH Criminal Appeal No. 183 of 2013t, decided on October 26, 2018 Respondent. A. Penal Code, 1860 - Ss. 148/149 r/w S. 302-Conviction with aid of Ss 148/149 cannot be recorded in the absence of at least 5 accused: either at least 5 accused should stand convicted, or total number of convicted accused plus unnamed accused should not be less than 5 Tatal 6 named accused and no unknown persons involved of all accused of all charges except appellant their attaining finality-In such circumstances, held, possibility of conviction of appellant under Ss. 148/149 IPC could have arisen only if there would have been certain unknown persons besides the named five acquitted co-accused- Acquittal Hence, appellant also (Paras 13 to 15) acquitted R. Penal Code, 1860 S. 302 simpliciter – Conviction under, if Sustainable as conviction with aid of S. 149 not sustainable No evidence that appellant was author of gunshot that hit and killed dareased-Ballistic report not supporting that shot was fired from appellant's aile-Appellant's rifle not taken in police custody immediately after incident, but appellant surrendered same in court - Appellant sole accused, acquittal of rest five co-aceused, not challenged, thus, attaining finality Conviction, under S. 302, set aside Ramvir v. State of U.P., 2012 SCC OnLine All 4523, reversed (Paras 16 to 18) Appeal allowed SS-D/61267/CR Advocates who appeared in this case: S.R. Singh, Senior Advocate (Mangat Prasad, Adarsh Verma and Ms Namita Choudhary, Advocates) for the Appellant; Manoj K. Mishra, Pradeep Misra, Advocates, for the Respondent. Chronological list of cases cited 1. 2012 SCC OnLine All 4523, Ramvir v. State of U.P. (reversed) on page(s) 237g, 239a, 239a-b, 239d, 240c, 240f The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J.

  • CONVEYANCING | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back CONVEYANCING CONVEYANCING Conveyancing is a system of documentation relating to transactions of properties movable or immovable as well as contracts. CONVEYANCING Conveyancing is a system of documentation relating to transactions of properties movable or immovable as well as contracts. Meaning: The law and practice of effecting property transactions and of contracts in general is commonly known as 'Conveyancing', Conveyancing is described as an "art of creating, transferring and extinguishing interests in property both in dealing with substantive law and providing examples to illustrate its principles. Importance of Conveyancing: The question arises, what is the importance or advantage of the conveyancing system. The importance arises out of the legal system prevailing in the society. The society which recognizes private ownership of property and is governed by the Rule of Law must have necessarily laws governing rights and obligations of persons owning properties R or otherwise and the laws governing dealings of properties and other transactions. DRAFTING Gallery www.lawtool.net Previous Next

  • Kedarnath Bhattacharji vs Gorie Mahomed

    Kedarnath Bhattacharji vs Gorie Mahomed Kedarnath Bhattacharji vs Gorie Mahomed on 26 November 1886 Equivalent citations: (1887) ILR 14 Cal 64 JUDGMENT W. Comer Pethekam, C.J. 1. The questions which are proposed for us in this Reference from the Small Cause Court are, first, whether the suit as laid by the plaintiff is legally maintainable; and, secondly, whether, upon the facts stated in the reference, the trustees are entitled to judgment. 2. The facts of the case appear to be these : The plaintiff is a Municipal Commissioner of Howrah and one of the trustees of the Howrah Town Hall Fund. Some time ago, it was in contemplation to build a Town Hall in Howrah, provided the necessary funds could be raised, and upon that state of things being existent, the persons interested set to work to see what subscriptions they could get. When the subscription list had reached a certain point, the Commissioners, including the plaintiff, entered into a contract with a contractor for the purpose of building the Town Hall, and plans of the building were submitted and passed, but as the subscription list increased, the plans increased too, and the original cost, which was intended to be Rs. 26,000, has swelled up to Rs. 40,000; but for the whole Rs. 40,000 the Commissioners, including the plaintiff, have remained liable to the contractor as much as for the original contract because the additions to the building were made by the authority of the Commissioners and with their sanction. The defendant, on being applied to, subscribed his name in the book for Rs. 100, and the question is, whether the plaintiff, as one of the persons who made himself liable under the contract to the contractor for the cost of the building, can sue, on behalf of himself, and all those in the same interest with him, to recover the amount of the subscription from the defendant. 3. We think he can. Without reference to his being a trustee or a Municipal Commissioner, we think that under the provisions of the Code of Civil Procedure he is entitled to bring an action on behalf of himself and others jointly interested with him. If the action could be maintained on behalf of all, and there were no other sections that would preclude this being done, that would cure any technical defect in the case. 4. Then the question is, whether this is a suit which could be maintained by the whole of the persons who made themselves liable to the contractor if they were all joined. 5. It is clear that there are a great many subscriptions that cannot be recovered. A man for some reason or other puts his name down for a subscription to some charitable object, for instance, but the amount of his subscription cannot be recovered from him because there is no consideration. 6. But in this particular case, the state of things is this: Persons were asked to subscribe, knowing the purpose to which the money was to be applied, and they knew that on the faith of their subscription an obligation was to be incurred to pay the contractor for the work. Under these circumstances, this kind of contract arises. The subscriber by subscribing his name says, in effect,--In consideration of your agreeing to enter into a contract to erect or yourselves erecting this building, I undertake to supply the money to pay for it up to the amount for which I subscribe my name. That is a perfectly valid contract and for good consideration; it contains all the essential elements of a contract that can be enforced in law by the persons to whom the liability is incurred. In our opinion, that is the case here, and therefore we think that both questions must be answered in the affirmative, because, as I have already said, we think that there is a contract for good consideration, which can be enforced by the proper party, and we think that the plaintiff can enforce it, because he can sue on behalf of himself and all persons in the same interest, and, therefore, we answer both questions in the affirmative, and we consider that the Judge of the Small Cause Court ought to decree the suit for the amount claimed, and we also think that the plaintiff ought to get his costs including the costs of this hearing.

  • The preamble

    Albania 1/1 Constitution of Albania The present Constitution defines Albania as a unitary parliamentary constitutional republic . It has a unicameral legislature composed of 140 members, who elect the President as the head of state, the Cabinet, which consists of the Prime Minister as the head of government, Deputy Prime Minister and all other Ministers. ALBANIA We, the people of Albania, proud and aware of our history, with responsibility for the future, and with in God and/or other universal values, ah determination to build a social and democratic state based on the rule of law, and to guarantee the Jamental human rights and freedoms, With a spirit of tolerance and religious coexistence, With the pledge for the protection of human dignity and personhood, as well as for the prosperity of the le nation, for peace, well-being, culture and social solidarity, with the centuries-old aspiration of the Albanian people for national identity and unity, With a deep conviction that justice, peace, harmony and cooperation among nations are among the hest values of humanity, We establish this Constitution.

  • AFFIDAVIT | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back AFFIDAVIT Affidavit is a written declaration. on oath. A written statement sworn before a person having authority to administer on oath. An affidavit must be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications on which statements as to his belief, with the grounds thereof, may be admitted. AFFIDAVIT Affidavit is a written declaration. on oath. A written statement sworn before a person having authority to administer on oath. An affidavit must be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications on which statements as to his belief, with the grounds thereof, may be admitted. Affidavits are required for filing in judicial proceedings before courts or in proceedings before other authorities. Usually the rules of courts of courts or the rules governing the proceedings before the authorities prescribe the form and contents of affidavits. Order XIX of the CPC deals with Affidavits in Civil Courts. Rule 1 empowers the court to order that any particular fact or facts may be proved by Affidavits Rule 2 provides power to order attendance of deponent for cross-examination, and Rule 3 sets out the matters to which Affidavits shall be confined. The Allahabad High Court has added Rule 405 to order XIX which prescribe in detail the form, the contents and the male of execution of Affidavits. Section 139 of CPC prescribes the authorities who may administer oaths to the deponent of an Affidavit. Section 3 (2) of the oath Act 1969 provides; Without prejudice to the powers conferred by sub-sec.(1) or by or under any other law for the time being in force, any court judge, Magistrate or person may administer oaths and affirmations for the purpose of Affidavits, if empowered in this behalf: - a) By the High Court, in respect of Affidavits, for the purpose of judicial proceedings, b) By the state Govt. in respect of other Affidavits. Oath Commissioners for swearing and Affidavits have been appointed- for all courts from- the amongst advocates and members of the staff of the court. Affidavits are chargeable with stamp duty under Act. 4, schedule I, stamp Act. 1899. But no stamp duty is charged on Affidavits filed or used in courts. Such Affidavits are liable to payment of court fee prescribed for the various courts. All Affidavits must strictly conform to the provisions of order XIX, Rule 3,CPC and in the verification it must be clearly stated as to which portion are being ,sworn on the basis of personal knowledge and which on the basis if information received and believed to be true. In the latter case the sources of information are not disclosed, the Affidavits is not in accordance with law and such an Affidavit is inadmissible in evidence. It is very important and material that the Affidavit should be properly verified otherwise it cannot be treated as evidence. Affidavit is an important document and, therefore, it should be prepared very carefully, furnishing of a false affidavit is punishable under sections 199 and 200 of the Indian penal code. An Affidavit is sometimes also required to be filed in support of an application and in that the facts and grounds etc. should be mentioned in the Affidavit only. But the application must state that the facts and grounds in support of the application are being given in the accompanying Affidavit. Affidavit being and important document requires great care and skill in its drafting. It may be noted in this connecting that various High Courts have made it rules and Affidavit should be drafted so as to meet the requirements of those rule following general guidelines should be following general guidelines should be followed while preparing an Affidavits : - a) The person making the Affidavit shall be fully described in an Affidavit in order to establish his identity clearly. For this purpose, it shall contain the full name, father's name, his professional status, occupation or trade and complete residential address. b) An Affidavit should be divided into paragraphs and numbered consecutively and each paragraph should be confined to a distinct fact. c) The declaring when speaks to any fact within his own knowledge he should use the words "I solemnly affirm" or "I make oath and say" or that "the deponent solemnly affirm and states as under". d) Affidavit should generally be confined to matters within the personal knowledge of the declarant. If he verifies a fact on information received he should make a specific mention to this effect and use the words, "the information received from so and so which I believe it to be true". e) Every person making an Affidavit for use in a civil court shall, if not personally known to the person before whom the Affidavit is made, be identified to the person by some one known to him and the person before whom the Affidavit is made state at the foot of the Affidavit the name, address and descript of the person the person by whom the identification was made as well as the date, time and place of such identification. Such identification. Such identification may be made by a person personally acquainted with the person to be identified or satisfied from papers in that person's possession or otherwise of his identity. f) The person before whom Affidavit is bring made shall, before the same is made, ask the person proposing to make such Affidavit if he has read the affidavits and understood the contents thereof and if the person proposing to make such affidavit stats that he has not read the affidavit or appears not to understood the contents thereof or appears to be illiterate, the person before whom the Affidavit is being made shall read and explain, or cause some other competent person to read and explain in his presence the affidavit to the person proposing to make the same, and when the person before whom the affidavit is being made is thus satisfied that the person proposing to make such affidavit understood the contents thereof, the Affidavit maybe made. g) The person before whom an Affidavit is made shall certify at the foot of the Affidavit the fact of the making of the affidavit before him and the date time and place when and where it was made and shall for the purpose of identification mark and initial exhibits referred to in the affidavit. h) Any clerical error corrected in the Affidavit shall be initiated by the person before whom the affidavit is made. i) Amendment in an Affidavit is not permitted, but a supplementary Affidavit can be filed with the leave of the court when any error or mistake is intended to be corrected or any addition is intended to be made. j) The Affidavit should contain the following oath or affirmation at the end. "I swear or, solemnly affirm that my this declaration is true or, that the contents of this Affidavit are time, and that it conceals nothing material, and that no part of it is false". Verification: An Affidavit must be verified to show the genuiness and authenticity of facts and allegations made therein and also to make the deponent liable for the allegation. Verification of an Affidavit must be done in the lines of order XIX, Rule 3 CPC. The verification must specifically make a mention with reference to the numbered paragraphs of the Affidavit as to what he verifies of his personal knowledge and what he verifies upon information received and believed by him to be time. It has been held that where an averment is not based on personal knowledge, the source of information should clearly be disclosed. DRAFTING Gallery www.lawtool.net Previous Next

  • Hikmat Alikhan v.Ishwar Prasad Arya (AIR 1977 SC 864)

    Hikmat Alikhan v.Ishwar Prasad Arya (AIR 1977 SC 864) FACT of the case :- Ishwar Prasad Arya, respondent No.1, was registered as an advocate with the Bar Council of Uttar Pradesh and was practicing at Badaun. An incident took place on May 18, 1971, during lunch interval at about 1.55 p.m. in which respondent No.1 assaulted his opponent Radhey Shyam in the courtroom of Munsif/Magistrate, Bisauli at Badaun with a knife. A pistol shot is also said to have been fired by him at the time of the incident. After investigation, he was prosecuted for offenses under Section 307 of the Indian Penal Code and section 25 of the Arms Act. Hikmat Alikhan v.Ishwar Prasad Arya (AIR 1977 SC 864) Ishwar Prasad Arya was an Advocate practicing in Badann, U.P. He stabed his opponent with the knife for that he has convicted 3 years rigorous imprisonment. On appeal the High court also confirmed the punishment. Thereafter, by using a forged letter of the Governor asking the court to suspend his sentence under art. 161 of the constitution he got his conviction suspended and he was released. Later the sessions Judge found the letter as forged one and he lodged a complaint with the Bar Council of U.P. for necessary action against him. The State Bar Council debarred him from practice for 2 years. On appeal the Bar Council of India set aside this order on the ground that there is no clear evidence to show that the Advocate himself has prepared that forged letter. Subsequently by taking into account of the bad conduct of the Advocate ie. Conviction for the offence under S.307 of I.P.C and his name being entered by the police in a register which contains the list of persons with bad character he was debarred for the practice for a period of 3 years by the State Bar Council. On appeal this order was also set aside by the Bar Council of India because it is interconnected with the earlier matter. Hikmit Ali Khan preferred an appeal before Supreme Court against this order. The Supreme court held that the second order of the State Bar Council was based on totally a different ground not connected with the grounds of the first order and the Bar Council of India was eronious in setting aside the second order of the U.P. Bar Council. Further Supreme court held that the gravity of the misconduct committed by him is so serious and the punishment of suspending him from practice for 3 years is not sufficient and ordered the removal of his name from the roll of Advocates. Judgement of the case :- 1) The Ist Temporary Civil and Sessions Judge, by his judgment dated July 3, 1972, convicted him of the said offense and sentenced him to undergo rigorous imprisonment for three years for the offence under Section 307 I.P.C. and for a period of nine months for offence under Section 25 of the Arms Act. 2) The conviction and sentence for the offence under Section 307 I.P.C. were maintained by the High Court by its judgment dated September 10, 1975 in Criminal Appeal No. 1873 of 1972 but he was given the benefit of doubt regarding offence under Section 25 of Arms Act and the conviction and sentence for the said offence were set aside. 3) April 28, 1976, purporting to have been sent by Shri L.R. Singh, Deputy Secretary, Ministry of Home, U.P., Lucknow, addressed to the District Magistrate, Badaun bearing endorsement No. 1513(II)-75-76 was received in the Court of the IIIrd Additional District and Session Judge, Badaun, who was responsible for executing the order of the court of the Ist Temporary Civil & Sessions Judge on its abolition. In the said letter it was stated that the Governor has been pleased to suspend the conviction of Ishwar Prasad Arya under Article 161 of the Constitution with immediate effect and until further orders, he should remain free. 4) After receiving the copy of the said letter dated April 28, 1979, stayed the proceedings in the case and despite repeated inquiries by the court from the State Government about the suspension of the sentences the execution of the sentence awarded to respondent remained suspended till September 27, 1977, when on receipt of a crash radiogram message from the Home Ministry, Lucknow, it was found that the letter dated April 28,1976 was fraudulent and thereupon a warrant for the arrest of respondent no.1 was issued by the court on September 28, 1977 and he was arrested the same day and was sent to Badaun Jail to undergo the imprisonment.

  • Re: D An Advocate Of The Supreme ... vs Unknown on 23 November, 1955

    Re: D An Advocate Of The Supreme ... vs Unknown on 23 November, 1955 1. This Rule was issued by this Court under Order IV, rule 30 of the Rules of this Court after receipt of a report from the Bombay High Court that that High Court had, by its order made on the 13th October, 1955 in Civil Application No. 1506 of 1955, suspended the respondent from practice as an Advocate of that High Court for a period of one year from the date of the said order. By the rule the respondent has been required to show cause why, in view of the matter specified in the judgment and order of the Bombay High Court referred to above, appropriate action, disciplinary or otherwise, should not be taken against him by this Court. 2. The respondent is an Advocate of some standing in the Bombay High Court and as such was also enrolled as an Advocate of this Court. It appears that in the earlier part of the year 1953 the Advocate was prosecuted before Mr. Sonavane, one of the Presidency Magistrates at Bombay, on a charge of having committed an offence under the Bombay Prohibition Act. The trial lasted from July 1953 to November 1953. On the 18th November, 1953 the Magistrate convicted the Advocate of the offence with which he was charged and sentenced him to rigorous imprisonment for one month and to a fine of Rs. 201 and to rigorous imprisonment of four weeks in default of payment of the fine. The Advocate went up on appeal to the High Court. The High Court on the 24th February, 1954 upheld the conviction but altered the sentence to one of fine of Rs. 1,000 only. 3. In the meantime, on the 25th November, 1953, the trial Magistrate, Mr. Sonavane, made a report to the Registrar (Appellate Side) of the Bombay High Court as to the conduct of the Advocate who appeared in person as the accused before him. On a perusal of that report the Hon'ble the Chief Justice of the Bombay High Court constituted a Tribunal consisting of three members of the Bar Council to enquire into the conduct of the Advocate. The Tribunal issued a summons against the Advocate intimating that it would enquire into his conduct as disclosed in :- (a) the report dated the 25th November, 1953, of Shri T. A. Sonavane, B.A. LL.B., Presidency Magistrate, 18th Court, Girgaum, Bombay, to the Registrar, High Court, Appellate Side, Bombay, regarding Case No. 593/P of 1953 tried by him, and (b) the judgment recorded by the High Court of Judicature at Bombay in Criminal Appeal No. 1532 of 1953 (with Criminal Appeal No. 1564 of 1953) upholding the judgment and order of conviction passed against him by the aforesaid learned Magistrate in the aforesaid case. 4. The proceedings appear to have been somewhat protracted by reason of frequent objections made and petitions filed by the respondent but eventually on or about the 16th March, 1955 the respondent forwarded to the Secretary to the Bar Council Tribunal a copy of a letter addressed by him to the Registrar, High Court, Bombay, and requested the Tribunal to send a report to the High Court in terms of his pleading guilty to the charges leveled against him. He concluded the letter by expressing regret for having wasted the time of the Tribunal. In his letter to the Registrar, the respondent enclosed a separate written apology unconditionally withdrawing his contention that the proceedings before the Tribunal were misconceived in law and admitting that the High Court had full authority in law to refer the matter to the Bar Council Tribunal and further that the statements made by Mr. Sonavane in his report were true except in two respects therein specified. On the 28th March, 1955 the respondent submitted an additional statement clarifying and supplementing his previous apology. Thereupon the Tribunal made a report to the High Court. By this report the Tribunal held, on the respondent's own admission, the allegations in the report of Mr. Sonavane to be proved and recommended that a very serious notice should be taken of the respondent's conduct. As regards the second item in the summons the Tribunal held that the mere conviction of the respondent under the Prohibition Act did not amount to professional or other misconduct under section 10 of the Indian Bar Councils Act and, therefore, found him not guilty of that charge. 5. On a perusal of that report the High Court issued notice to the respondent for final hearing of the matter. The matter came up for final disposal before a Bench consisting of the Chief Justice and Tendolkar, J. on 13th October, 1955. Learned counsel appearing for the respondent offered an unconditional and unqualified apology on behalf of the respondent and pleaded that the ends of justice would be met if the Court only administered a warning to the respondent. After considering the report of the Tribunal the High Court took the view that the misconduct of the respondent was so serious and so grave that a deterrent punishment must be imposed on him. Accordingly, taking everything into consideration, the High Court suspended the respondent from practice for a period of one year from the date of that order. The respondent's application for a certificate of fitness for appeal to this Court having been refused, the respondent filed a petition for special leave to appeal before us. That petition has, however, been dismissed by us. The rule for disciplinary action now remains to be dealt with. 6. In answer to the rule the respondent has filed a petition by way of showing cause. Paragraph 7 of that petition runs as follows :-"7. That the report of the learned Presidency Magistrate, 18th Court, is a highly exaggerated, garbled and manifestly incorrect version of the incidents that occurred during the trial of the case. And looking to the circumstances under which the petitioner was more or less compelled to tender a humiliating apology, this Hon'ble Court be pleased to direct that a proper inquiry be held in the matter by or under the directions of this Hon'ble Court". 7. Appearing in person before us the respondent has contended with a certain amount of vehemence that he had not had any fair deal before the Tribunal, that the Tribunal had no jurisdiction to enter upon the enquiry inasmuch as the misconduct complained of was not committed by him in his capacity as an Advocate, for he appeared in person as the accused in the Prohibition case, that the Tribunal had at one stage held that it had no jurisdiction but had without giving him a hearing gone back on that decision and declined to decide that question in his presence, that the Tribunal failed to formulate any formal charge, that he made an application to the High Court under article 227 for quashing the proceedings for want of jurisdiction but the High Court had rejected that application and declined to give him a certificate of fitness for appeal to this Court and pointed out various other matters which he characterised as showing prejudice and bias on the part of the Tribunal. 8. It was pointed out to the respondent that his application for special leave to appeal from the judgment and order of the High Court having been dismissed we were not, in this Rule, concerned with the proceedings in the Bombay High Court or before the Tribunal of the Bar Council as observed by this Court in In the matter of Mr. G, a Senior Advocate of the Supreme Court . The respondent then fell back upon paragraph 7 of his petition quoted above and asked this Court to hold a fresh enquiry into the matter. From the judgment of the Bombay High Court which is referred to in the Rule issued herein it appears that the respondent had admitted the truth of everything contained in Mr. Sonavane's report except two matters only. In his present petition showing cause he does not, apart from a vague allegation that the report is an exaggerated, garbled and manifestly incorrect version of the incidents that occurred during the trial of the case, refer to and particular statement therein which is exaggerated garbled or incorrect. In view of his unconditional admission of the truth of the statements in the report of Mr. Sonavane we are not prepared to permit him to go back on the same on such vague allegations as are to be found in paragraph 7 of his petition. It is needless for us to emphasise that a person holding the responsible position of an Advocate of a High Court and of this Court cannot be permitted to play with the Court in the way this Advocate has done. He admitted the correctness of the report, confessed his guilt and tendered an unconditional apology evidently in the hope that he would get away with it by merely tendering an apology. Finding that the tactics did not work with the High Court as he expected the same to do, he now wants to charge his tactics by asking for an enquiry which he had himself avoided by means of his admission and apology. This we are not prepared to permit to do. We have carefully gone through the report of Mr. Sonavane and we find ourselves in entire agreement with the High Court when it says that that report makes an extremely sad reading. The conduct of the respondent in the criminal trial was, as pointed out by the High Court, entirely indefensible by any standard. It discloses a continuous and persistent attempt on the part of the respondent to be rude to and contemptuous of the Magistrate, to hold up the trial and to do everything in his power to bring the administration of justice into contempt. Such a conduct, in our opinion, merits severe condemnation. 9. The respondent has drawn our attention to the case of In re Thomas James Wallace ([1866] L.R. 1 P.C. 283), which was followed in In re An Advocate of Benares . We do not conceive that the Privy Council intended to lay down any fixed and rigid rule of law or did anything more than indicate the course which, in the circumstances of that case, it considered to be reasonable, satisfactory and convenient and the Allahabad case simply followed the same. As has been held by a Full Bench of the Bombay High Court in The Advocate-General of Bombay v. Three Advocates ([1934] I.L.R. 59 Bom. 57), the Indian Legislature by using the words "professional or other misconduct" in section 10 of the Indian Bar Councils Act intended to confer on the Court disciplinary jurisdiction to take action in all cases of misconduct whether in a professional or other capacity leaving it to the discretion of Court to take action only in suitable cases. To the like effect is the decision of a Special Bench of the Calcutta High Court in In the matter of an Advocate ([1936] I.L.R. 63 Cal. 867). The pleader concerned in the case of In re a Pleader (I.L.R. [1943] Mad. 459), was certainly not, by shouting slogans in Court, functioning as an Advocate, nevertheless he was dealt with under section 13(f) of the Legal Practitioners Act. Wallace's case (supra) was not a decision on any statutory provision such as we have in the Legal Practitioners Act or the Bar Councils Act. 10. For the reasons stated above and in view of the conduct of the Advocate seen in the light of the surrounding circumstances we are clearly of opinion that the Advocate should, by reason of his having indulged in conduct unworthy of a member of the honourable profession to which he belongs, be suspended from practice for some time. He is an Advocate of this Court and according to a majority decision of this Court he is entitled, under the Supreme Court Advocates (Practice in High Courts) Act, to exercise his profession in all Courts throughout the Union of India. Any suspension for a period less than the period fixed by the Bombay High Court will obviously lead to serious anomaly and inconvenience. We accordingly direct that the Advocate concerned be suspended from practice for a period co-terminous with the period of suspension fixed by the Bombay High Court, namely, up to the 13th October, 1956.

  • TukaRam vs State Of Maharashtra on 15 September, 1978

    TukaRam vs State Of Maharashtra on 15 September, 1978 Mathura's Gang Rape Case. The day of 26th March 1972, considered as the black day in the history of empowerment of women. On 26 March 1972, Mathura rape case became the episode of custodial rape in India, where Mathura,a young harijan girl, was badly raped by two policemen on the compound of Desaiganj Police Station in Chandrapur district, of Maharashtra as it led to amendments in Rape Law via TheCriminal Law Amendment of 1983. The judgment is given by Justice Jaswant Singh, Kalisam and Khosal who were highly criticized by the people for their legal fallacies and the interpretation of the law for ambiguous and the sexiest tone. Then after the Supreme Courtacquitted the accused, there was a huge public outcry and protests against the laws of the country. FACTS OF THE CASE: A young tribal girl named Mathura lived with her brother Gama She worked as the laborer at the Nushi's house for the employment. During the period of employment she developed the sexual relations with the son of Nushi's sister, Ashok. They decided to get married. Her brother filed a complaint to the police ensuring that Mathura had been kidnapped by Nushi, her husband Laxman and Ashok on 26th of March, 1972. The statements of Ashok and Mathura were recorded at about 10:30 P.M., and the head constable Baburao asked all the persons to leave witha direction to Gama to bring a copy of the entry regarding the birth date of Mathura. Theappellants also asked Mathura to stay at the police station only. Thereafter closing the doors andturning off the lights inside, Ganpat, the appellant No.1 took Mathura to the washroom and rapedher. After the Ganpat was done, the appellant No. 2 Tukaram, tried to rape her but failed due to highly intoxication but touched her private parts. After the incident Mathura was examined by the doctor and found no injury on her body. Theexaminer did not found the symptoms of semen, even on the pubic hair. The semen however found on the girl's clothes. After examining her doctors has also estimated the age of Mathura as between 14 to 16 years. JUDGMENT BY THE SESSION JUDGE: The session court held that both of the accused are not liable for the offence of rape because the intercourse between the girl and accused was a “consensual sexual intercourse” as the girl was habituated to the sexual intercourse. And also she was scared of Ashok and Nushi that is why she had not made any sound. The district judge therefore acquitted both of the appellants. JUDGMENT BY THE HIGH COURT: The Bombay High Court has reversed the order of the Session Court and held that the sexualintercourse was a rape and not a consensual sexual intercourse. It is proved by the evidence thatsince, both the accused were stranger to Mathura, how she can have sexual intercourse with them to fulfill the sexual needs of her. JUDGMENT BY THE SUPREME COURT: The appellant contended for the special leave. And Supreme Court again converted the decision of the High Court and acquitted the accused. It was agreed with the decision of the Session Judgeand held that this was a case of consensual sexual intercourse. On this spot the Supreme Court more added that as “no marks of injury” were found on Mathura’s body there was “no battle” on her part and since she did not “raise an alarm” for help she “consented to sex". ISSUES BEFORE THE COURT: 1. Whether there was consent of girl? 2. Whether the appellant No.1 and No.2 will be charged for Section 376 of Indian Penal Code? 3. Whether the act of police officer will amount to rape? 4. Whether the grounds of acquittal of the police officer by the Court are valid?

  • BAIL APPLICATION | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back BAIL APPLICATION BAIL APPLICATION:- The concept of bail has a long history and deep roots in English and American law. In medieval England, the custom grew out of the need to free untried prisoners form disease ridden jails while they were waiting for the delayed trials conducted by traveling justices, prisoners were bailed, or delivered, to reputable third parties of their own choosing who accepted responsibility for assuring their appearance at trial. If the accused did not appear, his' bailor would stand trial in his place. It became the practice for property owners, who accepted responsibility for assuring persons to forfeit money when their charges failed to appear for trial. In the event of non-appearance, the bond is forfeited. Hindi Meaning जमानत आवेदन:- जमानत की अवधारणा का एक लंबा इतिहास है और इसकी जड़ें अंग्रेजी और अमेरिकी कानून में गहरी हैं। मध्ययुगीन इंग्लैंड में, अप्रशिक्षित कैदियों को बीमारी से ग्रस्त जेलों से मुक्त करने की आवश्यकता से रिवाज बढ़ गया, जबकि वे यात्रा करने वाले न्यायाधीशों द्वारा किए गए विलंबित परीक्षणों की प्रतीक्षा कर रहे थे, कैदियों को जमानत दी गई थी, या वितरित किया गया था, अपने स्वयं के चुने हुए तीसरे पक्ष के लिए जिन्होंने जिम्मेदारी स्वीकार की थी परीक्षण में उनकी उपस्थिति सुनिश्चित करने के लिए। यदि आरोपी पेश नहीं होता तो उसके स्थान पर उसके जमानतदार पर मुकदमा चलेगा। यह संपत्ति के मालिकों के लिए प्रथा बन गई, जिन्होंने व्यक्तियों को पैसे जब्त करने का आश्वासन देने की जिम्मेदारी स्वीकार की, जब उनके आरोप परीक्षण के लिए उपस्थित होने में विफल रहे। गैर-उपस्थिति की स्थिति में, जमानत जब्त के लिए है। BAIL APPLICATION www.lawtool.net The concept of bail has a long history and deep roots in English and American law. In medieval England, the custom grew out of the need to free untried prisoners form disease ridden jails while they were waiting for the delayed trials conducted by traveling justices, prisoners were bailed, or delivered, to reputable third parties of their own choosing who accepted responsibility for assuring their appearance at trial. If the accused did not appear, his' bailor would stand trial in his place. It became the practice for property owners, who accepted responsibility for assuring persons to forfeit money when their charges failed to appear for trial. In the event of non-appearance the bond is for feited. 'Bail' in English common law is the freeing or setting at liberty of one arrested or imprisoned or imprisoned upon any action, either civil or Criminal, on surety taken for his appearance on certain day and a place named. Under the Indian law the word 'bail ' has not been defined in the code Criminal procedure 1973 have defined the expression 'bailable offence' and non- bailable offence respectively in section 4( 1) (b) and sec; 2 (a). The word 'bail' means the security for a prisoner's appearance for trial. The effect of granting bail is accordingly not to set the prisoner free from jailor custody, but to release him form the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. Under the provisions of Cr P.C., bails may be studied under three heads: (1) Bails in bailable offences. (2) Bails in non-offences. (3) Anticipatory Bail. 1. Bails in Bailable offences - where an arrested person is accused of a bailable offence he shall be released on bail at any time while n custody, if he is prepared to give bail. But the officer in charge of a police station detaining the accused without a warrant may, instead of taking bail form such person, discharge him on executing a bond without sureties for his appearance. In every bailable offence bail is granted as a matter of favour. No discretion has been granted to courts in such cases. The granting of bail is imperative under sec. 436 of code of Criminal Procedure. Where a person fails to comply with the conditions of the bail bond regarding time and place of attendance, the court may refuse to release him on bail, when on a subsequent accession in the same the appears before the court or is brought in custody and any such refusal shall be without prejudice to the powers of the court to call upon any person bond by such bond to pay the penalty there of under sec. 446 in which the procedure when bond his been for feinted is given. 2.Bails in Non-Bailable Offences : All offences which do not fall under the category of bailable offences are non-bailable offences.A person accused of a non-bailable offence maybe released on bail, subject to certain restrictions. Sec. 437, Cr P.C., lays down that a person arrested for a non-bailable offence shall not be so relapsed if there appears reasonable grandees for believing that he has been guilty of an offence punishable with death or imprisonment for life. But there is also an exemption in the section, in the case of a person under the age. Of sixteen years or any woman or any sick or infirm person identification by witnesses is no ground for refusing bail. 3.Anticipatory Bails: Sec. 438 Cr. P.C. 1973 says the issuance of a direction that in the event of arrest of the application he shall be released on bail. Sec. 438 confers power on the High Court as also the Court of Session to grant bail to any person apprehending arrest on an accusation of having committed a non-billable offence in anticipation of his arrest, which is called anticipatory bail. The object of this section is that if a person has already obtained an order from the session judge or the High Court, he would be released immediately without having to undergo the rigours of jail even for a few days which would necessarily be taken up if he has to apply for bail after arrest. Application for Anticipatory bail and its Contents It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not the requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge the reasonableness of his belief. Apart from the fact that the very language of the statute compels this contraction there is an important principle involved in the insistence that facts on the basic of which a direction under sec. 438 (1) is sought must be clear and specific, not vague and general it is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to on investigate into crimes reported to them can be avoided. Rule of prudence requires that the notice should be given to the other side before passing a final order for anticipatory bail so that wrong order of anticipatory bail so that wrong order of anticipatory bail is not obtained by a party placing incorrect or misleading facts or suppressing material facts. Authorities Competent to grant bail Police officers, Magistrates, courts and Government are empowered to grant bail under the various provisions of the code of Criminal Procedure code. (a) Police Officers: Police officer are empowered to grant bail to persons arrested without a warrant under sec. 41 (when police may arrest without warrant) or sec. 42 (Arrest on refusal to give name and residence) or Sec. 43 (Arrest by private person and procedure on such arrest) or Sec. 151 Cr. P.C. (Arrest to prevent the Commission of cognizable offences) or to a person arrested under a available warrant issued by a court, or to accused person to appear before the court when required. (b) Magistrates and Courts: The Magistrates and Court are empowered to grant bail to any accused person. The provisions elating to bail are laid down in various sections of the Cr. P.C. like 436 to 439 in chapter XXIII of the Cr. P.C. the question of granting bail for apprehending arrest has been provided in sec. 438 of Cr.P.C. (c) Government: Under sec.339 Cr. P.C. the Government may, upon and application who is lunatic and on such relations or friends giving security to the satisfaction of the state Government concerned, Order relatively or friend. Under sec. 432 Cr.P.C. The Government is empowered to suspend or remit sentence. The usual practice is that a person desiring bail should first approach the lower court, but this practice is not inflexible because under sec 439 Cr P.C. special power have been conferred on the High Court or the court of session regarding bail. Further when a person has reason to believe that he may/be arrested on an accusation of having committed a non-bailable offence he may under sec, 438 Cr P.C. apply to the High Court or the court of session for a direction under the said section and that the Court may if it thinks fit direct in the event such arrest that he shall be released on bail. In order to enable the judge to decide whether bail should be granted or not and what exactly are the terms on which he should be granted bail. It would be advantageous of notice is given to the public prosecutor. Though there is no provision which compels the court to give notices to the public prosecutor before granting bail the court has such power to direct notice in appropriate cases. Since bail in bailable cases is a matter of right for the accused to be enlarged on bail, there is no scope for giving notice to the Public prosecutor. The circumstances which should be weighted on behalf of the prosecution and against the accused are: 1)That there is every liklyhood that the accused will be absconding on his release. 2)That there is a reasonable apprehension that the accused might tamper with the evidence of the prosecution witnesses by his influence where by the prosecution would be hindered and would not get a fair opportunity of adducing incriminating evidence against the accused. 3)That there is danger of such offence being repeated and continued etc. FORM OF BAIL APPLICATION It is also keep in mind by the students that so long as an accused is not charge-sheeted, the case against him is not numbered as the court case on its file; and hence it is referred as Cr P.C. No. (Crime Register Number) which relates to the particular Police station to which the offence has been reported to. But, as soon as the charge-sheet is filed in the court, the case s numbered as Court-case on its file. DRAFTING Gallery www.lawtool.net Previous Next

  • The preamble

    ARGENTINA 1/1 The Constitution establishes a Bill of Rights and Guarantees for all individuals, Argentine or foreign; the inviolability of the right of life, liberty, equality, security and property. The second chapter, added in 1994, deals with public ethics, political rights, environmental protection and consumer rights. ARGENTINA We, the representatives of the people of the Argentine Nation, gathered in General Constituent Assembly the will and election of the Provinces which compose it, in fulfillment of pre-existing pacts, in order to m a national union, guarantee justice, secure domestic peace, provide for the common defense, promote general welfare and secure the blessings of liberty to ourselves, to our posterity, and to all men of the world who wish to dwell on argentine soil: invoking the protection of God, source of all reason and justice: o ordain, decree, and establish this Constitution for the Argentine Nation.

  • The preamble

    PAKISTAN 1/1 The preamble of the Constitution of Pakistan 1973 states that the sovereignty over the entire universe belongs to Al-Mighty Allah alone and the authority is to be exercised within limits prescribed by him by the people of Pakistan through its elected representatives and the principles of democracy , freedom, equality, ... Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust; And whereas it is the will of the people of Pakistan to establish an order Wherein the State shall exercise its powers and authority through the chosen representatives of the people, Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed; Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah: Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures; Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such baoundries and limitaions on their powers and authority as may be prescribed . Therein shall be guaranteed tundamental rights, including equality of status, of opportunity and before law, social, economie and political justice, and freedom of thought, expression, belief, faith, worship and with such boundaries and limitations on their powers and authority as may be prescribed, association, subject to law and public morality Wherein adegquate provision shall be made to safeguard the legitimate interests of minorities and May backward and depressed classes: Wherein the independence of the judiciary shall be fully secured: Wherein the integrity of the territories of the Federation, its independence and all its rights, including its So that the people of Pakistan may prosper and attain their rightful and honoured place armongst the sovereign rights on land, sea and air, shall be safeguanded; nahions of the Wotld and make their full contribution towards international peace and prognese happiness of humanity: Now, therefore. we, the people of Pakistan, Cognisant of our responsibility before Almighty Alialrand men; Cognisant of the sacrifices made by the people in the cause of Pakistar: Faithful to the declaration made by the Founder of Pakistan, Quaid-i-Azam Mohammad Ali linneh it Pakistan would be a democratic State based on Islamic principies of social justice, Dedicated to the preservation of democracy achieved by the unremitting struggle of the people again oppression and tyranny: Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new order; Do hereby, through our zepresentatives in the National Assermbly, adoapt, enact and give to ourselyes, thin Constitution .

  • GOLAK NATH VS. STATE OF PUNJAB, 1967

    GOLAK NATH VS. STATE OF PUNJAB, 1967 GOLAK NATH VS. STATE OF PUNJAB, 1967 ISSUE In this case, the Petitioner Golak Nath and his family claimed in excess of 500 sections of land in Punjab. Be that as it may, during then the state government made an enactment ‘Punjab Securities and Land Tenures Act’ wherein under this Act, Golak Nath and his family were not permitted to keep in excess of 30 sections of land. Along these lines, Golak Nath recorded a writ request under Article 32 of the Indian Constitution testing the legitimacy of the enactment and that his fundamental right to property was being abused. The issue was whether the parliament has the ability to revise the fundamental rights cherished under Part III of the Constitution of India or not. The candidates contended that the parliament had no capacity to alter fundamental rights, while the respondents contended that our constitution was never implied as static and non-adaptable by the constitution-creators. JUDGMENT In this case, the apex court overruled the judgment given if there should arise an occurrence of Sajjan Singh by most of six: five and held that the revision under Article 368 is ‘law’ inside the importance of Article 13(2). It was additionally governed by the Hon’ble court that Legislature detests the ability to revise Part III of the Constitution to remove or compress fundamental rights. The Supreme Court fought that Fundamental Rights are not amendable as expressed under Article 13 and further more expressed that Article 368 gives the technique to correct the Constitution yet doesn’t present on Parliament the ability to revise the Constitution. Golaknath’s dominant part see mirrors the anxiety and vulnerability in their psyches with respect to the then Parliament’s course. Various enactment that had in some affection penetrated crowded’s FR’s have been passed since the 1950 ‘s Parliament by summoning Article 368. The greater part was suspicious that in the event that Sajjan Singh remained the rule that everyone must follow, at that point a period could come when all the FRs received by our Constituent Assembly would be weakened and in the end stifled by corrections. Sajjan Singh and Shankari Prasad overruled this conceivable elimination of FR’s as a primary concern and dreading the possible progress of Democratic India to most of Totalitarian India. Consequently, to check this colourable exercise of intensity and spare Democracy from dictatorial actions of Parliament, the larger part held that Parliament can’t revise Fundamental Rights.

  • Pandurang dattatray Khandekar vs Bar Council of India and others AIR,1984 Supreme Court 110.

    Pandurang dattatray Khandekar vs Bar Council of India and others AIR,1984 Supreme Court 110. A group of 12 advocate practicing in two courts of S.D. Ms in the collectorate of Pune are the complainants both the state bar council and Bar Council of Delhi through its disciplinary committee found the appellant and one Agvane Guilty of giving improper legal advice and held the charge of professional misconduct provided the and suspended the appellant for a period of 4 months and Agvane for a period of 2 months therefrom. As regard the lenient punishment as stated above, the disciplinary committee observed: " we take into consideration the age of the Advocate the family they have to maintain, the environment in which they practice and the practice and the standard which is maintained in such an environment is not very high as the bar council Association rules certify toutism and provide for toutism which could be unthinkable anywhere else ." In appeal , the supreme court observed that there is a difference between the Giving of improper advice and giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the on the part of legal practitioner in the exercise of profession does not amount to professional misconduct; into that offence there must enter the element of professional misconduct element of moral delinquency. of that there is no suggestion here, and there is no case to investigate, and that no reflection adverse to his professional honour.

  • The preamble

    EGYPT 1/1 EGYPT The constitution adopted in 2014, like the constitution drafted under Morsi, is based on the Egyptian Constitution of 1971. ... Under the constitution, there is a guarantee of equality between the sexes and an absolute freedom of belief, but Islam is the state religion. CONSTITUTION 2014 PREAMBLE In the Name of God, Most Gracious, Must Merciful. God or other deities. This is Cur Constitution Egypt is the gift of the Nile and the gift ofEgyptians to humanity. Blessed with a unique location and history, the Arab nation of Egyptis the heart of the whole world. It is the meeting point of its civilizations and cultures andthe crossroads of its maritime transportation and communications. It is the tip of Africa onthe Mediterranean and the estuary of its greatest river: the Nile. This is Egypt, an immortal homeland to Egyptians, and a message of peace and love to all peoples Iri the beginning ofhistory, the dawn of human conscience rose and shone forth in the hearts of our great ancestors,uniting their good intention to build the first central state that regulated and orgarized thelife of Egyptians on the banks of the Nile, It is where they created the most amazing wondersof civilization, and where their hearts looked up to the heavens before earth knew the three revealed religions Reference to country's history Egypt is the aradle of religiors and the banner of glory of the revealed religions. On its land, Moses grew up, the light of God appeared, andthe message descended on Mount Sinai, On its land, Egyptians welcomed Virgin Mary and herbaby and offered up thousands of martyrs in defense of the Church of Jesus. When the Sealof the Messengers Mohamed (Peace and Blessings Be Upon Him) was sent to all mankind toperfect the sublime morals, our hearts and minds were opened to the light of Islam We were thebest soldiers on Earth to fight for the cause of God, and we disseminated the message of truth and religious sciences across the world. This is Egypt; a homeland that we live in as much asit lives in us In the modern age, minds were enlightened, humanity became mature, and nationsand peoples progressed on the path of science, raising the banners of freedom and equality.Mohamed Ali founded the modern Egyptian state with a national army as its pillar. Refaa, theson of Al-Azhar, prayed that the homeland become "a place of common happiness for its people We, Egyptians, strived to keep up with the pace of development, and offered up martyrs andmade sacrifices in several uprisings and revolution until our patriotic army delivered victory tothe sweeping popular will in the "Jan 25 - June 30" Revolutiee that called for bread, freedom andhuman dignity within a framework of social justice, and brought hack the homeland's free willThis revolution is but an extension to a procuss of national struggle whose brightar symbolswere Ahmed Oraby, Mostafa Kamel, and Mohamed Farid. It was the capstorie of two grealrevolutions in our modern history: The 1919 revolution that had rid Egypt and the Egyptiansof the British guardianship, and had established the principle of citizenship and equalitybetween the people of the same country. Its leader, Saad Zaghloul, and his successor, MosfataEI-Nahhas, walked the path of democracy asserting that "Truth is above power and the nationis above the government". During this revolution Talaat Harb laid down the comerstone of thenational economy, The July 23, 1952 revolution that was lod by the leader Ganal Abdel Nasserand was embraced by the poptular will achieved the dream of generations for evacuation andindependence. As a result, Egypt affirmed its Arab allegiance, opened up to its African cantinentand Muslim world, supported liberation movements across.continerits, and took firm stepson the path of development and social justice This revolution represents an extension of therevolutionary march of Egyptian patriotism, and supports the strong bond between the Egyptianpeople and their patriotic army that bore the trust and responsibility of protecting the homelandThanks to it, we achieved victory in our greatest battles including driving of the 1956 TripartiteAggression and the glorious victory of October that granted President Sadat a special place inour recent history. Compared to major revolutions in the history of mankind, the fan 25 - June30 Revolution is a unique revolution, because of the heavy popular participation involved - whichwas estimated to be in the tens of millions -- and the significant role of youth who aspire to abrighter future, the masses who transcended class and ideulogy to reach out to more exparisivepatriotic and human horizons. the manner in which the people's army protected the popular willand the blessings granted to it by Al- Azhar and the patriotic church. Itt is also unique becauseof its peacefulness and ambition to achieve freedom and social justice together. This revolutionis a sign and a good omen. It is a sign ut a past that is still present and a good omen of a futureto which all humanity aspires. The world has almost forgotten about an age that was torm byconflicts of interest between the east and the west, and ihe nurth and the south; an age wheredisputes and wars erupled between classes and peoples, where risks grew, threatering theexistence of mankind and life on Earth, which God created for us Humanity hopes to move fromthe age of maturity to the age of wisdom to build a new world where truth and justice prevail,and where freedoms and human rights are protected. We, Egyptians, believe that our revolutionis an opporturuty to return to help write a new history for mankind. We believe that we arecapable of using the past as an inspiration, stirring up the present, and making our way to thefuture. We are capable of developing this homeland that develops us. We believe that every itizenis entitled to ive in this homecland in safety and security, and that every citizen is entitled to atoday and a tomorrow. We believe in democracy as a path, a future, and a way of life; in politicalmultiplicity, and in the peaceful transfer of power. We affirm the right of the people to make theirfuture. They, alone, are the source of authority. Freedom, humari dignity, and social justice are aright of every citizen. Sovereignty in a sovereign homeland belongs to us and future generations. We are now drafting a Constitution that embodies the dream of generatiuns of a prosperous united society and of a fair state that achieves the aspirations of today and tomorrow forindividuals and society We are now drafting a Constitution that completes building a modermdemocratic state with governmenit. We are drafting a Constitution that closes the door for anycorruption or tyranny, heals the wounds of the past from the time of the old Eloquent Peasant tothe victims of negiigence and the martyrs of the revolution in our time, and relieves our peopleof the injustice they have sulfered from for long. We are drafting a Constitution that affirms thatthe principles of Islamic Sharia are the principle source of legislation, and that the reference forinterpretation thereof is the relevant texts in the collected rulings of the Supreme ConstitutionalCourt. we are drafting a Constitution that paves the way to the future for us, and which is in line with the universal Declaration of Human Rights, which we took part in the drafting of and approved . We are drafting a Corstitution that maintains our freedom and protects the nation againat every threatagainst it or against our national unity. We are drafting a Constitution that achieves equalitybetween un in tights and duties with no discrimination. We are the citizens. We are the Egyptianpeople, sovereigns in a sovereign homeland. This is our will and this is the Constitution of our revolution. This is our Constitution.

  • EXECUTION - PETITION | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back EXECUTION - PETITION EXECUTION PETITION Execution is the enforcement of decrees and orders of courts by the process of the court.n It is the act if carrying into effect the final judgment of a court or other tribunal. In its practical sense, execution is the formal method prescribed by law, whereby the party, entitled to the benefit of a judgment or of any obligation equivalent to the judgment, may obtain that benefit. EXECUTION PETITION Execution is the enforcement of decrees and orders of courts by the process of the court.n It is the act if carrying into effect the final judgment of a court or other tribunal. In its practical sense, execution is the formal method prescribed by law, whereby the party, entitled to the benefit of a judgment or of any obligation equivalent to the judgment, may obtain that benefit. Sections 36 to 74 and order 21 (XXI) of the code of Civil Procedure deal with the law and procedure for the execution of decrees. The order consists of 106 rules and is the longest of all he order of the code. The question as to the execution of decree shall arise only when the person against whom the decree has been passed, does not comply with it. Order XXI of the code deals with those steps which a decreeholder shall have to follow in the execution of he decree against the judgment- debtor. According to Rule 30 or order XXI the expression, 'execution of a decree means the enforcement of the decree against a judgment debtor's person or property or both through the forum of the court. According to court to Rule 21 of the same order the court may, in its discretion, refuse execution at the some time against the person and property of the judgment debtor. The true executing against the person of the judgment- debtor means his arrest and detention in civil prison the term, execution against the property of the judgment debtor, means the attachment and sale of his property and then payment of the amount of the decree out of the sale proceeds to the decreeholder. A decree may be executed either by the court which passed it, or by the court to which it is sent for execution. Application for Execution : Where a decree-holder desires to execute it, he shall apply to the court which passed the decree. Every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person who is acquainted with the facts of the case, and it shall contain the following particulars as provided under rules 11 (2) to 14 of the Order XXI. a. The name of the court, b. The number of the suit, c. The names of the parties, d. The date of the decree; e. Whether any appeal has been preferred from decree, and if so what is the result thereof, f. The nature, character and the amount of the decree and costs. g. The mode of execution, against person or property movable and immovable and their detailed description. If the application complies with rules 11 (2) to 14, the court will direct exclusion under rule 24; and if it does not it may be rejected or ordered to be amended under rule 17. When the application is rejected, the decree- holder can present another application properly framed. Where the application is made for arrest and detention of the judgment-debtor in prison, it shall state the grounds on which artest is applied for and shall be accompanied byan Affidavit of the applicant or any other person conversant with the facts of the case, (Rule 11- A). But where the decree is for the payment of money and the judgmentdebtor is present in the court at the time when the decree is passed, on the oral application (Rule 11 (1) Orper XXI) of the decree- holder, the court may order immediate execution of the decree by arresting the judgment-debtor without prior preparation of warrant under rule 11 (1) of the order. Who May Apply for Execution: The application for execution is made by the decree-holder. Where the decree has been passed jointly in favour of more persons than one, anyone or mare of such persons may apply for execution (rule 15). Where a decree is transferred by the decree-holder, the transferee may apply for execution (Rule 16). If the decree-holder is dead, his legal representative may apply for execution. Against Whom Execution May be Applied for: where judgment-debtor is living, the execution is applied for against him, but if he is dead, execution is applied for against his legal representative. When the execution is applied for against legal representative of the deceased judgment-debtor, it cannot be against the person of the legal representative, but only against the property of the jUdgment-debtor which has come to the legal representative and has not been disposed of by him (sec. 50). Form of Execution Petition: An application for execution of decree under rule must state certain particulars. The decree-holder is required to state the details as number of The suit, names of e parties, the date of decree, etc, in his executions application, and if upon scrutiny, it appears that any of this detail is missing in the application; the court may give an opportunity to the decree-holder to remedy the effect. An application for execution is generally made in a tabular form given in form NO.6 in appendix E to the first schedule of the civil procedure code. But the fact that the petition for execution was not in a tabular form is, in itself, not a sufficient ground for rejection the application. Verification of Application Sub rule (2) of 11 enjoins that every application for the execution of ta decree shall be verified by (i) The application, or (ii) Some other person proved to the satisfaction of the court to be acquainted with the facts of the case. A valid application can be signed and verified by any person proved to the satisfaction of the court to be acquainted with the facts of the case. So, if an incorporate body obtains a decree through its secretary and the application for execution is sighed and verified by its president, the application is competent. Rule 11 (1) does not require that the execution petition must be verified by a person authorised by the decree-holder. It may be verified by any person acquainted with the facts of the case. The provisions, as regards the signing and verification in sub-rule (2) in respect of an execution application are mandatory and the omission to comply with the same constitutes a material irregularity, which unless cured, renders the application open to the objection that the some is not in accordance h law. Where they are more applicants than are, the verification need not be signed by all a verification one of them acquainted with the facts of the case is sufficient. 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  • Dr. D.C. Saxena vs Hon'Ble The Chief Justice Of India on 19 July, 1997

    Dr. D.C. Saxena vs Hon'Ble The Chief Justice Of India on 19 July, 1997 PETITIONER: DR. D.C. SAXENA Vs. RESPONDENT: HON'BLE THE CHIEF JUSTICE OF INDIA DATE OF JUDGMENT: 19/07/1997 BENCH: K. RAMASWAMY J U D G M E N T K. Ramaswamy, J. In a clash of competing interests in constitutional contours, this case calls to strike a balance between the freedom of speech and expression, a salutary right in a liberal democratic society and paramount countervailing duty to maintain public confidence in the administration of justice. The petitioner has initiated public interest litigation under Article 32 of the Constitution to direct Sri P.V. Narasimha Rao, the President of Indian National Congress and the former Prime Minister of the country to pay a sum of Rs.8.29 lakhs and odd said to be due to the union of Indian for use of Indian Air Force aircraft or helicopters from October 1, 1993 to November 30, 1993. When writ Petition No. 432/95 was posted for hearing on July 17,1995 before the learned Chief Justice of India and brother Justice S.C. Sen the solicitor General for India, Shri Dipankar P. Gupta was sent for and the Court directed him to have the averments verified to be correct and directed the petition to be listed after two weeks. On August 7,1995, the writ petition came before the Bench comprising the learned CJI, Justice S.C. Sen and Justice K.S. Paripoornan. It is not in dispute that the Solicitor General had placed the record before the Court and upon perusal thereof and after hearing the petitioner-in-person, the Bench summarily "dismissed"" the writ petition which had triggered the petitioner to file yet another writ petition, this time against the learned Chief Justice of India, Justice A.M. Ahmadi. The Registry raised objections for its maintainability but, at eh insistence of the petitioner, it was posted, with office objections, for hearing, as unregistered Writ petition After hearing the petitioner, the Bench dismissed the second writ petition with the order as under: "The several averments in the writ petition are scandalous and it is surprising that the petitioner, who is said to be a Professor in a University, has chosen to draft and file such a writ petition. His understanding of the meaning of Article 32 of the Constitution, is to say the least, preposterous. The allegations made are reckless and disclose irresponsibility on the part of the petitioner. This writ petition is wholly misconceived and is an abuse of the process of the Court. The writ petition has no merit. The writ petition is, therefore, dismissed. In view of the attitude of the petitioner even at the hearing, when the persisted in this stand and, on our asking him, reiterated that he stood by the scandalous averment made therein, we consider it our duty to issue to the petitioner a notice to show cause why proceedings to punish him for contempt of this Court should not be initiated against him. The Registry to take the necessary steps for registering the matter as a contempt petition. The petitioner who is present- in-person is given notice of the contempt petition. He is required to file his reply within four wheels to show cause why proceedings for contempt should not be initiated against him. We request the learned Solicitor General to assist the Court in this contempt matter. List the matter after notice of the date fixed by Registry is given to Dr. D.C. Saxena and the Solicitor General."

  • Affidavit For Bail Bond With Form No. 45 For Bail Under Section 436, 437 And 438(3) Of Code Of Criminal Procedure. | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back Affidavit For Bail Bond With Form No. 45 For Bail Under Section 436, 437 And 438(3) Of Code Of Criminal Procedure. Affidavit for Bail Bond with Form No. 45 for bail under Section 436, 437 and 438(3) of Code of Criminal Procedure. Format of affidavit for Bail Bond under section 436, 437 and 438(3)of Criminal Procedure Code. The Accused who is seeking Anticipatory bail or regular bail need to file Bail Bond in Form NO. 45 with the Court. The bail bond should be supported with affidavit as per the format shown here. Sample Format of affidavit for Bail Bond under section 436, 437 and 438(3)of Criminal Procedure Code is as under. IN THE COURT OF SESSIONS JUDGE, _____________________COURT CRIMINAL MISCELLANEOUS (BAIL) APPLICATION NO ____ OF 20__ IN THE MATTER OF: MR. ____________ APPLICANT VERSUS STATE OF _____________ RESPONDENT AFFIDAVIT I _____________ son / daughter / wife of_____________ _____________ Aged about_____________ R/o__________________________ _____________ _____________ _____________ _____________ _____________ _____________ do hereby solemnly affirm and declare as under _____________ 1. That deponent is the resident of above said address and having his/her Ration Card no. is _____________ _____________ and Election Card No. _____________. 2. That accused is_____________ _____________of the deponent and deponent has full control over him/her and capable to produce him/her before this hon'ble court. 3. That deponent is working as _____________ _____________ at _____________ T/C. No _____________ earns Rs _____________ per month. 4. That deponent is the owner of household articles valued about of Rs. ____________ _____________ _____________ 5. That deponent is the owner of the immovable property bearing No. _____________ Measuring _____________ sq. yards situated at _____________ valued not less than Rs _____________. 6. That deponent undertakes to produce the accused before the honourable court on every date of hearing. 7. That I have an F.D.R. No _____________ Issued by _____________ For Rs. ______ 8. That I own a vehicle No. _____________ make _____________ R/C no _____________ at present valued not less than Rs. _____________. DEPONENT VERIFICATION Verified at Delhi on this _____________ day of 20 _____________ that the contents of this Affidavit are true and correct to the best of my knowledge & nothing material has been concealed therefrom, no part of it is untrue. DEPONENT Section 437 of the Criminal Procedure Code, 1973 437. When bail may be taken in case of non- bailable offence. (1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but- (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence: Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail it such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that It is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non- bailable offence, but that there are sufficient grounds for further inquiry into his guilt the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub- section (1), the Court may impose any condition which the Court considers necessary- (a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) otherwise in the interests of justice. (4) An officer or a Court releasing any person on bail under sub- section (1) or sub- section (2), shall record in writing his or its 1 reasons or special seasons] for so doing. (5) Any Court which has released a person on bail under sub- section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. (7) If, at any time after the conclusion of the trial of a person accused of a non- bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. DRAFTING Gallery www.lawtool.net Previous Next

  • Bablal v.Subash Jain BCI TR Case No.115/1986

    Bablal v.Subash Jain BCI TR Case No.115/1986 The complainant and the Respondent are Advocates. The complainant filed a petition before the Madhya Pradesh Bar Council stating that the respondent to guilty of professional misconduct under s.35. The allegation of the complainant is that the respondent a practicing lawyer, is working as an Editor , Printer and Publisher of a weekly called ``Aaj Ki Janta’’ He is the owner of the press which prints the weekly. It is also alleged that the respondent did not disclose these facts while applying for enrolment to the State Bar Council. The respondent denied all the allegations. He contended that before enrolment, the job of printing and publishing was transferred to his wife and thereafter he was working only as an editor of the said weekly. Since the enquiry was not completed within one year, the case was transferred to the Bar Council of India. In the enquiry it was found that he enrolled in 1973 and continued as the printer, publisher and editor of the weekly till 1983. Only in 1983 printing and publishing was transferred in the name of his wife. But, by a general power of attorney from his wife the respondent was looking after the entire work of the weekly. Based on this findings the Bar Council of India held that the respondent is guilty of professional misconduct punishable under S.35 of the Advocates Act and passed the following orders. 1. He was suspended from practice for a period of one year. 2. Suppression of the fact that he is the owner of the weekly in the enrolment application cannot be treated as professional misconduct punishable under S.35.

  • Prahalad Saran Gupta v. Bar Council of India (AIR 1997 Sc 1338).

    Prahalad Saran Gupta v. Bar Council of India (AIR 1997 Sc 1338). Gupta was practicing Advocate at Gaziabad . He was appearing for the decree-hold in an execution case between Atma Ram manak Chand v.Shriram in the Ghaziabad court. The degree holder has filed a complaint in the State Bar Council against his Advocate (Gupta) alleging the following professional misconduct. 1. He has colluded with the judgement debtor and accepted Rs. 1500 out of the total decreed amount and allowed time for the payment of the remaining balance. 2. The amount so received is not given to the degree holder. 3. He has helped the judgement Debtor to get the execution stayed by the High Court. 4. When he was Acting as a standing counsel for the railways ,he drafted the notice under S.80.C.P.C to be served to the railways on behalf of M/s. Agerwal traders who was the compliment against the Railways. This is a serious professional misconduct. The draft prepared by his own handwriting was produced before the disciplinary committee. Gupta denied all the allegations and informed that he was holding the amount of Rs.1500 as trustee on behalf of his client. Since the enquiry was not completed within one year the matter was transferred to the Bar Council of India. The Bar council of India has found the appellant guilty of serious professional misconduct and passed an order suspending him from the practice for a period of one year. Gupta challenged this order before the Supreme court. The Supreme court passed the following orders. 1. It is not advisable for the Disciplinary Committee to base its conclusion purely on the basis of its own comparison of the hand writing of Gupta with the alleged draft prepared by him. The court held that the charge of professional misconduct is quasi- criminal in nature requires proof beyond reasonable doubt. 2. Addressing a letter to the counsel of the opposite party (judgement debtor) in the execution proceedings amounts to professional misconduct. 3. Holding the money with him which he has received in the execution proceedings without any sufficient reason amounts to professional misconduct. 4. For this misconduct suspending him from practice for 1 year is too much , So the Bar Council of India’s order is set aside and he was reprimanded with strong words.

  • PETITION UNDER ARTICLE 226 AND ARTICLE 32 OF THE CONSTITUTION | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back PETITION UNDER ARTICLE 226 AND ARTICLE 32 OF THE CONSTITUTION PETITION UNDER ARTICLE 226 AND ARTICLE 32 OF THE CONSTITUTION This section deals with the writs. The writs ate obviously intended to enable the Supreme Court and High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in vacation of the principles of natural justice, PETITION UNDER ARTICLE 226 AND ARTICLE 32 OF THE CONSTITUTION This section deals with the writs. The writs ate obviously intended to enable the Supreme Court and High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in vacation of the principles of natural justice, or refuse to exercise jurisdiction vested I them, or there is an error apparent on the face of the record, and such act, omission, error or excess, has resulted in manifest injustice. However, extensive the a jurisdiction maybe it seems that it is not so wide or large as to enable the court to convert .itself into a court of appeal and examine for it self the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made. Art. 32 of the constitution of India give the right to move the Supreme Court by appropriate proceeding. For enforcement of the rights conferred by part III, of the constitution of India. The provision merely keeps open the doors of the Supreme Court in much of the same way as is used to be said, the doors of chancery court were always open the state cannot place any hindrance in the way of an aggrieved person seeking to approach the supreme court. This is logical enough for it is against state action that fundamental rights are claimed. But the guarantee goes no further at least on the terms of Art. 32 Having reached the Supreme Court, the extent or manner of interference is for the court to decide. It is clear that every case does not merit interference. That must always depend upon the facts of the case. In dealing with cases which have come before it, the Supreme Court has already settled many principles on which it acts. The Supreme Court does not take action in cases covered by the ordinary jurisdiction of the civil court that is to say; it does not convert civil and criminal actions into proceedings for the obtainment of writs. Although there is no rule or provision of law to prohibit the exercise of its extraordinary jurisdiction, the Supreme Court has always insisted up on recourse to ordinary remedies or the exhaustion of other remedies. It is in rare cases, where the ordinary process of law, appears to be inefficacious that the Supreme Court interferes even where other remedies are available. This attitude arises from acceptance of a salutary principle that extraordinary remedies should not take the place of ordinary remedies. Then again the Supreme Court refrains from acting under Art. 32, of the Constitution, if the party has already moved the High Court under Art.26. This constitutes a comity between the Supreme Court and the High Court. Similarly, when a party had already moved the High Court with a similar complaint and for the same relief and failed, the Supreme Court insisted in an appeal to be brought before it and does not allow fresh proceedings to be started. In this connection the principle of res-judicata has been applied. The citizens are ordinarily entitled to appropriate relief under Art. 32 once it is shown that their fundamental rights have been illegally or unconstitutionally violated. Therefore; Art. 32 does not give merely a discretionary power to the Supreme Court t grant an appropriate relief. To enforce fundamental rights, resort can be had to art. 32 of the Constitution of India. Art. 32 is not to be invoked for infringement of a personal right of contract, nor is to be invoked for agitating questions which are capable of disposal under special enactments. The amount there is a threat to a threat to fundamental rights to a citizen, he is entitled to approach the High Court under Article 32 not with standing actual threat has not taken place. The general attitude of the Supreme Court is not to answer any hypothetical question or a question if the same does not arise out if pleadings. (Sanjeev Coke V. Bharat Coking. AIR 1983 SC 239) Art 32 provides in some respects for more effective remedy through Supreme Court then Art. 226 does through the High court. But the scope of the remedy is clearly narrower in that it is restricted solely to enforcement of fundamental right conferred by part III of the constitution. Art. 32 does not merely confer power on the Supreme Court as Art. 226 does on the High Court to issue certain writs for the enforcement of the rights conferred by part III, or for any other purpose, as part of its general jurisdiction. Art. 32 provides a "Guaranteed" remedy for the enforcement of those rights and this remedial right is itself made a fundamental right by being included in part III, the Supreme Court is thus the protector and guarantor of fundamental right and it cannot refuse to entertain applications seeking protection, against infringements of such rights. So and application for relief can be made to the Supreme Court direct. Art. 226 is wider in its scope vis-a- vis Art. 32, in that Art. 226 can be availed of both for enforcement of fundamental rights. But also of ordinary legal rights. Art.32 (3) enables parliament to make a law empowering any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2) thereof one thing to be noticed is that the parliament can only empower any other court to exercise any of the powers exercisable by the Supreme Court under clause (2), it cannot confer guaranteed right mentioned in clued (1) on any person to move that curt. That is to say, the court to courts to which such powers are given would be in the same position as the High Court in respect of the enforcement of the fundamental rights. In short no person would have a guaranteed right to move any such other court for the enforcement of fundamental lights. A discretionally jurisdiction similar to that of the High Court be . conferred on them. Application for writ and its maintainability In the case of K.K. Kochunni v.state of Madras (AIR 1959 SC 725) it was observed that the Supreme Court is bound to entertain a partition under Art. 32 of the constitution and to decide the same on merit even if it may encourage litigants to file many petitions under Art. 32 instead of proceedings by way of a suit. That consideration cannot by it self, be a cogent reason for denying the fundamental right of a person to approach the Supreme Court for the enforcement of his fundamental right which may, primafacie, appear to have been infringed. Even, if the existence of other adequate legal remedy may be taken into consideration by the High Court in deciding whether it should issue any of the prerogative writs on an application under Art.226 of the constitution, the Supreme Court cannot on a similar ground decline to entertain a petition under Art. 32, for the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by part III of the constitution is itself, a guaranteed right. The mere, existence of an adequate alternative legal remedy cannot perse be a good and sufficient ground for throwing out a petition under Art. 32, if the existence of a fundamental right and a breach, actual or threatened, of such right is alleged and is prima- facie established on the petition. In the following cases or circumstances writ petition under 32 lie: - (a) Where action is taken under an ultra vires statutes, (b) Where the statute is intravires but the action taken is without jurisdiction, and (c) Where the action taken is procedurally ultra-vires - The scope of Art-32 is being enlarged by judicial activism. In MC. Mehta V. Union of India (AIR 1987 SC 1086) it was pointed out that the court can entertrain claim for compensation suffered by a citizen on account of violation of fundamental rights. Amendment of writ petition which cause no injustice to other side, avoids multiplicity of proceedings, and is necessary for determining real controversy of matter, should be allowed. Aggrieved party can file a petition under Art. 32. and a petition for write under Art. 32 is not maintainable unless there has been a violation of some fundamental right. In the case of Ravindra Nath Bose V. UOI (1970, 1SCC84) Supreme Court held that no relief should be given to petitioners who, without any reasonable explanation, approach the Supreme Court under Art 32 of the constitution after in ordinate delay. The Supreme Court administers justice in accordance with law and principles of equity and good conscience. Applicability of Art. 226: The jurisdiction under Art.226 is to seeing that the judicial or quasi- judicial tribunals or administrative bodies exercising quasi- judicial powers, do not exercise their powers in excess of their statutory jurisdiction, but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them where the Act has created its own hierarchy of officers and appellate authorities, to administer the law and so long as those authorities function within the letter and spirit of law, the High Court has no concern with the manner in which those powers have been exercised. Writ jurisdiction is a discretionary and equitable jurisdiction. But since fundamental rights guaranteed by the Constitution the courts cannot refuse to enforce them on the ground of discretion. In the case of other rights the High Court generally refuse to exercise their discretion (a) Where an alternative remedy is available to the petitioner, (b) Where the petition is guilty of laches or unreasonable delay or acquiescence; (c) Where the petition has, misrepresented or suppressed martial facts; (d) Where it is no equitable to issue a writ; (e) Where the writ, if issued, would be futile or ineffective or merely academic, (f) Where the petition has become in fructuous; (g) Where the grant of relief depends on investigation of disputed facts. The writ jurisdiction of Supreme Court can be invoked only in cases of actual or threatened violation of fundamental rights guaranteed by part III of the constitution. The jurisdiction of the High Court is wider and can be exercised for the protection of fundamental rights as well as other legal rights. ' WRITS UNDER ARTICLE 32 & 226 1) Habeas Corpus: It is a writ in the nature of an order calling upon the person who has detained another to produce the detained person before the court, in order to let the court know on what ground he has been confined and to set him free if there is no legal justification for the detention. The writ is available in every case of unlawful detention either by an instrumentality of the state or by a private person.Art. 21 provide that no person shall be deprived of his life or personal liberty except according to procedure established by law. Art.22 provides protection against arrest and detention in certain cases. Whenever a case of arrest or detention by the authorities in violation of these provisions is established writ of habeas corpus would be issued. The jurisdiction can be invoked not only when a person is in actual detention but also when there is a real threat to his liberty and also when a person is on bail. But it cannot be invoked in the case of detention as a result of conviction on a criminal charge by a court of competent jurisdiction. 2) Mandamus: The writ of mandamus is a prerogative writ of a most extensive remedial nature, and is form, a command issuing from the court directed to any person, corporation inferior court, requiring him or them to do some particular thing specified which appertains to his or their office and is in the nature of a public duty. A writ of mandamus maybe granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. In order to obtain a writ of mandamus the petitioner must establish i. That he has a legal right to the performance of a legal duly by the respondent. ii.That such duty is one imposed by the constitution, a statute, common law or by rules or orders having the force of law; iii. That the duty is of a public nature and iv. That a demand for justice was made and refused. 3) Certiorari: The object of a writ of certiorari is to keep the exercise of powers by judicial and quasijudicial tribunals within the limits of the jurisdiction assigned to them by law and to restrain them from acting in excess of their authority. Whenever the body of personas, having, legal authority to determine questions affecting rights of subjects and having the duty to act judicially act in excess of their authority, certioraris may issue to quash the decision that goes, beyond jurisdiction. The decision of a judicial or quasi- judicial tribunal may be quashed by the issue of a writ of certiorari of one or more a the following grounds ate made out: - (i) The tribunal has acted without or in excess of its jurisdiction, (ii) That there is an error if law apparent on the face of the record; (iii) That the tribunal has acted contrary to the principles of natural justice; (iv) That the tribunal has acted in flagrant disregard of the procedure prescribed. (v) That the tribunal was biased, (vi) That the tribunal has acted malafide. 4) Prohibition : A writ of prohibition is also directed to wares keeping judicial and quasi judicial tribunals within the Iimits of their jurisdiction while a writ of certiorari can issue only after the tribunal has passed orders a writ of prohibition may be issued while the matter is still pending before the tribunal. A writ of prohibition is intended to prohibit or restrain the tribunal from action without or in excess of jurisdiction. A writ of prohibition is issued to prevent the tribunal from proceeding further, when the tribunal proceeds to act: (i) Without or on excess ofjurisdiction; (ii) In violation of the rules of natural justice; (iii) In utter disregard of the procedure prescribed; (iv) In contravention of fundamental rights; and (v) Under a law which is ultra-vires of unconstitutional. 5) Qua-warran to: In order to invoke the jurisdiction for issuing a writ of quo-warranto the following conditions have to be satisfied - (i) That the officer is a public office; (ii) That it is substantive in character; (iii) That it has been created by a statute, or the constitution to by rules having the force of law; (iv) That the respondent has asserted a claim to the office; and (v) That the respondent aid not legally qualified to hold the office or remain in the office, or that some statutory provisions have been violated in making the appointment, so that his title to the office becomes invalid or without legal authority. 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  • Harish Chandra Singh v.S.n.Tripathi (AIR 1997 SC 879)

    Harish Chandra Singh v.S.n.Tripathi (AIR 1997 SC 879) Harish Chandra Singh v.S.n.Tripathi (AIR 1997 SC 879) Mr.Daya Ram engaged Mr. Harish Chandra as a lawyer in a consolidation proceeding pending before the consolidation officer. Since Daya Ram could not attend the case regularly, harish Chandra asked him to appoint a mukhtar. Daya Ram appointed one mr. Syed Hussain, a junior Advocate of harish Chandra as the mukhtar (power agent). Syed Hussain in the capacity as mukhtar sold certain properties of Daya Ram to the father of Harish Chandra (This he did under the pressure of his senior Harish Chandra). Daya Ram filed a complaint against both Harish Chandra and his junior Syed Hussain before the Local Bar Association. The president of the Bar Association forwarded the complaint to the U.P.State Bar Council. Since the matter was not disposed off within one year it was transferred to the Bar Council of India. During the enquiry Daya Ram submitted the following. 1.The mukhtar was obtained fraudulently. 2.Therefore, the sale deed executed by using the mukhtar should be treated as void. 3.The act of Harish Chandra and Syed Hussain amounts to professional misconduct, So they should be punished for that. Syed Hussain confessed the guilt stating that being a junior, by obeying his senior, he did these things and asked for pardon. Harish Chandra contented that his father was living separately and he did not have any contact with him. He also contented that Syed Hussain is not his junior. The Bar Council of India held that Harish Chandra is Guilty of professional misconduct and he was suspended from the practice for two years. His junior Syed Hussain was pardoned. Against this order Harish Chandra filed an appeal before the Supreme court. The Supreme court dismissed the appeal and affirmed the decision of the Bar Council of India.

  • Freelance Cartoonist Aseem Trivedi Section 66A of the IT Act,

    Freelance Cartoonist Aseem Trivedi Section 66A of the IT Act, In September 2012, a freelance cartoonist Aseem Trivedi was arrested under the Section 66A of the IT Act, Section 2 of Prevention of Insults to National Honour Act, 1971 and for sedition under the Section 124 of the Indian Penal Code. His cartoons depicting widespread corruption in India were considered offensive. On 12 April 2012, a Chemistry professor from Jadavpur University, Ambikesh Mahapatra, was arrested for sharing a cartoon of West Bengal Chief Minister Mamata Banerjee and then Railway Minister Mukul Roy. The email was sent from the email address of a housing society. Subrata Sengupta, the secretary of the housing society, was also arrested. They were charged under Section 66A and B of the IT Act, for defamation under Sections 500, for obscene gesture to a woman under Section 509, and abetting a crime under Section 114 of the Indian Penal Code. On 30 October 2012, a Puducherry businessman Ravi Srinivasan was arrested under Section 66A. He had sent tweet accusing Karti Chidambaram, son of then Finance Minister P. Chidambaram, of corruption. Karti Chidambaram had complained to the police. On 19 November 2012, a 21-year-old girl was arrested from Palghar for posting a message on Facebook criticising the shutdown in Mumbai for the funeral of Bal Thackeray. Another 20-year-old girl was arrested for "liking" the post. They were initially charged under Section 295A of the Indian Penal Code (hurting religious sentiments) and Section 66A of the IT Act. Later, Section 295A was replaced by Section 505(2) (promoting enmity between classes).A group of Shiv Sena workers vandalised a hospital run by the uncle of one of girls.On 31 January 2013, a local court dropped all charges against the girls. On 18 March 2015, a teenaged boy was arrested from Bareilly, Uttar Pradesh, for making a post on Facebook insulting politician Azam Khan. The post allegedly contained hate speech against a community and was falsely attributed to Azam Khan by the boy. He was charged under Section 66A of the IT Act, and Sections 153A (promoting enmity between different religions), 504 (intentional insult with intent to provoke breach of peace) and 505 (public mischief) of Indian Penal Code. After the Section 66A was repealed on 24 March, the state government said that they would continue the prosecution under the remaining charges. Criticisms Section 66A and restriction of free speech From its establishment as an amendment to the original act in 2008, Section 66A attracted controversy over its unconstitutional nature:

  • Appointment of Muttawalli for Administration of Wakf | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back Appointment of Muttawalli for Administration of Wakf Format of Deed for Appointment of Muttawalli for Administration of Wakf. English :- As per Section 3(i) of Vakf Act 1995 (i) "mutawalli" means any person appointed, either verbally or under any deed or instrument by which a wakf has been created, or by a competent authority, to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any wakf or wakf property: Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office bearer of such committee or corporation. Hindi:- वक्फ अधिनियम 1995 की धारा 3 (i) के अनुसार (i) "मुतवल्ली" का अर्थ किसी भी व्यक्ति को मौखिक रूप से या किसी भी विलेख या साधन के तहत नियुक्त किया गया है जिसके द्वारा वक्फ बनाया गया है, या एक सक्षम प्राधिकारी द्वारा, एक के मुतवल्ली होने के लिए वक्फ और इसमें कोई भी व्यक्ति शामिल है जो किसी भी प्रथा के आधार पर वक्फ का मुतवल्ली है या जो नायब-मुतवल्ली, खादिम, मुजावर, सज्जादनाशिन, अमीन या मुतवल्ली द्वारा नियुक्त अन्य व्यक्ति है जो मुतवल्ली के कर्तव्यों का पालन करता है और अन्यथा को छोड़कर इस अधिनियम में प्रदान किया गया है, कोई भी व्यक्ति, समिति या निगम किसी वक्फ या वक्फ संपत्ति का प्रबंधन या प्रशासन कर रहा है: बशर्ते कि किसी समिति या निगम के किसी भी सदस्य को मुतवल्ली नहीं माना जाएगा जब तक कि ऐसा सदस्य ऐसी समिति का पदाधिकारी न हो या निगम। Sample format of Deed for Appointment of Muttawalli for Administration of wakf is given below: APPOINTMENT OF MUTTAWALLI To all to whom these presents shall come I _________ son of _________ _________by faith _________ by occupation_________ residing at_________ send greeting whereas by a deed of Declaration of Wakf made by_________ (hereinafter referred to as the wakif) on and bearing date the day of_________and registered by the Sub-Registrar of Assurance of_________ in Book No. 1, volume _________, pages_________ being, _________ for the year the said wakif dedicated the properties therein and in the schedule hereto particularly mentioned and described absolutely by way of wakf, divested himself of the ownership thereof to all intents and purposes and intended that the said properties shall be held and so treated and the rents, issues and profits thereof shall at all times thereafter be appropriated for the objects and purposes as indicated therein the ultimate benefit under the said wakf being reserved for purposes recognized by Mahomedan law as religious, pious or charitable as appearing in clauses _________ to _________ thereof and whereas the said Deed is in fall force and virtue and the income of the properties dedicated being utilised for the purposes mentioned therein and whereas by the said deed hereinbefore recited the said wakif laid down the following scheme for administration of the wakf and made provisions for the appointment of mutawalli, that is to say. (a) (b) (c) Now know ye all that in exercise of the powers, authorities and liberties given to and vested in me under by virtue of the deed hereinbefore recited and every and any other powers enabling me I the said do hereby nominate and appoint son of_________ deceased at present residing at by faith by occupation a Mahomedan belonging the Sunni School of Mahomedan law as mutawalli to be my successor in office after my death and in the event of his death during my lifetime his sons/daughters named _________ of the same place and caste as mutawalli or mutawallis next after me to administer the said Wakf estate. In witness whereof I the said _______ have hereunto set and subscribed my hand and seal this _________ day of _________ 20__. Signed, sealed and delivered by _______________ in the presence of: Witnesses: Signature __________ (Name) 1. 2. The Wakf Act, 1995 Section 6. Disputes regarding Wakfs (1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs. Explanation.-For the purposes of this section and section 7, the expression "any person interested therein", shall, in relation to any property specified as wakf property in the list of wakfs published after the commencement of this Act, shall include also every person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under section 4. (2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit. (3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder. (4) The list of wakfs shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive. (5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a court in that State in relation to any question referred to in sub-section (1). Section 7 Power of Tribunal to determine disputes regarding wakfs (1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or not, or whether a wakf specified in such list is a Shia wakf or a Sunni wakf, the Board or the mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final: Provided that- (a) in the case of the list of wakfs relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of wakfs; and (b) in the case of the list of wakfs relating to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement: Provided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question. (2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under this section in respect of any wakf shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding. (3) The Chief Executive Officer shall not be made a party to any application under sub-section (1). (4) The list of wakfs and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final. (5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of section 6, before the commencement of this Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be. DRAFTING Gallery www.lawtool.net Previous Next

  • MEMORANDUM OF APPEAL AND REVISION | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back MEMORANDUM OF APPEAL AND REVISION MEMORANDUM OF APPEAL AND REVISION The memorandum of appeal shall set forth concisely and under distinct heads, the grounds of objection to the decree appealed form without any argument or narrative and such grounds shall be numbered consecutively. (Order XVI Rule 1 C.P.C.)The memorandum according to order XLI, Rule 1 shall be accompanied by a copy of the decree appealed from and unless the appellate court dispenses there with, of the judgment on which it is founded. The word 'copy' means a certified copy. This is a mandatory requirement, in the sense that an appeal filed without a certified copy of the decree makes the appeal incompetent. defective and [competent. But where the circumstances require it, the court has power to treat the appeal as competent and maintainable even in the absence of a copy of the decree attached. (Phool Chand V. Gopal Lal, AIR 1967 SG 1470) MEMORANDUM OF APPEAL AND REVISION www.lawtool.net The memorandum of appeal shall set forth concisely and under distinct heads, the grounds of objection to the decree appealed form without any argument or narrative and such grounds shall be numbered consecutively. (Order XVI Rule 1 C.P.C.)The memorandum according to order XLI, Rule 1 shall be accompanied by a copy of the decree appealed from and unless the appellate court dispenses there with, of the judgment on which it is founded. The word 'copy' means a certifieed copy. This is a mandatory requirement, in the sense that an appeal filed without a certified copy of Jhe decree makes the appeal incompetent. defective and [competent. But where the circumstances require it, the court has power to treat the appeal as competent and maintainable even in the absence of a copy of the decree attached. (Phool Chand V. Gopal Lal, AIR 1967 SG 1470) The term 'appeal' means the judicial examination by a higher court of the decision of inferior court while the memorandum of appeal contains the grounds on which the Judicial examination is invited (Lakshmi Ratan Engineering Works, Ltd. V. Asst. Commissioner of sales Tax, AIR 1968 SC 488) An appeal in legal paralence is held to mean the removal of a cause from an inferior or subordinate to a superior tribunal or forum in order to test and scrutinise the correctness of the impugned decision. It amounts in essence and pith to a complaint to a higher forum that the decision of a subordinate tribunal is erroneous and, therefore liable to be rectified or set right. There is a basic distinction between the right of suit and the right of appeal. There is and inherent right in every personto bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, however, frivolous the claim, that the law confers no such right to sue. Asuit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the positition in regard to appeal is quite the opposite. The right of appeal inheres in no one and, therefore, and appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described a creature of statute. Under the code of civil procedure an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by order XLIII, Rule 1. No appeal can lie against a mere finding for the simple reason that the code does not provide for any such appeal and if it is directed against a mere findlng recorded by the trial court, it is not maintainable. (Gangabai V. Vijay Kumar AIR 1974 SC 1126). The right of appeal is not a guaranteed or a constitutional right. There is nothing whatsoever in the constitution which may even remotely vest any such inalienable right in the citizens. The right of appeal is not a fundamental right nor a constitutional one. It has been repeatedly held that the right of appeal is the mere creature of the stature. The creator that is the legislature which confers such right can equally take the same away, if necessary. It inevitably follows there form that if the whole right can be thus taken away it can equally be impaired, regulated or burdened with condition either onerous or otherwise. Grounds of Appeal: A memorandum of appeal is meant to be a statement of the grounds upon which the appellant proposes to support the appeal. It is a notice to the court that such and such specific grounds are proposed to be urged on behalf 0 the appellant, as also a notice to the respondent that he should be ready to meet those specific grounds. The parties concerned and their legal advisers should concentrate and focus their attention on the essential feature of cases so as to facilitate speedy and consequently, cheap administration of justice. (Kapil Deo Shukla V. state of Uttar Pradesh, 1958 SC R 640) An appeal is essentially a continuation of the original proceedings. The theory of an appeal is that the suit is continued in the court of appeal and re-heard there. An appeal is a continuation of a suit but this is only in a limited sense, it does not, however, mean that the rights which could be pleaded and enforced before a suit was finally adjudicated by the first court could be pleaded as of right for the first time during the pendency of the appeal. It is also true that courts do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff 's suit would by wholly displaced by the proposed amendment and a fresh suit by him would be barred by limitation. Although in cases where it would not be so barred different considerations might came into play and a different view might be possible. It cannot be, however, disputed that ordinarily an appellate court- can give effect to such rights only as had come into being before the suit had been disposed of and which the trial court was competent to dispose of (chunni Lal khusaldas Das V.K.Adhyaru, AIR 1956 SC 655,675 ). But if during dependency of the appeal it transpires that the respondent landlord has transferred the respondent landlord has transferred the property (House) which he, according to his petition required for his personal use, and the transfree had filed a suit for eviction against the tenant, the appellate court can take notice thereof and dismiss the transferor landlord's suit. Right of appeal is not an inherent right of the subject but only exists where it is expressly conferred by statute. Point of limitation not taken in the memorandum of appeal, being a pure ground of law, may be entertained at the hearing thereof. Although the general rule may be that a plea once abandoned may not be raised, the right view seems to be that such fundamental issues as limitation and resjudicata are exceptions to it. Appoint of limitation is prima facie admissible even in a court of last resort. The essential requirement of an appeal is rehearing of a grievance and merits. Under order XLI of code of civil procedure, the expressing "appeal" and "memorandum of appeal" are used to denote two distinct things. The appeal is the judicial examination, the memorandum of appeal contains the grounds on which the judicial examination is invited. Order XLI, Rule 1 of C.P.C. deals with the form of appeal, what to accompany memorandum and contents of memorandum. Memorandum Appeal consist of :- (1) The formal part, (2) The material part, (3) The Relief, The formal part of the memorandum of appeal contains the heading of the case. After the name of the court, the number of the appeal and the year in which it is filed ad mentioned the number is written by the official of the court for which space is left blank. There after the names and addresses of the parties are given. The name of the app~lIant is given first and then of the respondent. It is also to be noted against the name of the parties as to what character each filled in the lower court. After the names of the parties an introductory statement giving the particulars of the decree or order against which the appeal is directed. Its number and date the court which passed it and the name of the presiding officer should be written. It may be stated that wherever the High Court has prescribed forms of heading of appeal from decrees and orders, the same should be followed. Material part of the memorandum consists of the grounds of appeal. A memorandum of appeal is meant to be a succinct statement of the grounds upon which the appellant proposes to support the appeal. The grounds of appeal should be carefully drafted since these grounds are the very basis of the appellant's case for raising objection and attacking the decree or order appealed. While taking the grounds of objection, the defects and errors of the decision of the lower court should be pointed out. Errors of law, f any may also be indicated. The facts and circumstances which require the decision of the lower court o be altered and make it erroneous should be specifically high lighted in the grounds of appeal. It is mportant to note that no new plea, which was not taken in the pleadings and on which no issue was ramed nor evidence was led, should be raised. An appellant cannot argue in regard to any ground of )bjection not taken in the memorandum of appeal. It is of utmost importance that the memorandum of appeal should be drawn up in accordance with order (L1, Rule 1, C.P.C. which provides form of appeal, its presentation, documents to be filed and grounds )f objection. It these provisions are not adhered to then the memorandum of appeal may be rejected by he court as provided in order XLI, Rule 3, C.P.C. Order XLI Rule' 1,2,3 lays down the c conlents of memorandum: - a. Grounds of objection should be in the concise form; b. They should be written distinctly; c. They should not be written in argumentative or narrative form; d. Each ground should be numbered consecutively. The ground should be written concisely to avoid vagueness and unnecessary details. It should be briefly iescribed to ensure that nothing irrelevant is unclouded. The grounds objections constitute an important actor of appeal and should be very carefully framed. Each ground of attack should be clearly and separately stated. There should not be any vagueness in he ground of appeal. The grounds should be specifically and distinctly stated. The particular point and he error of law, the particular point and the error of law, the particular finding of fact found to be wrong Ind the other mistakes committed by the lower court must be specifically stated. The grounds of objection should not be framed in argumentative or narrative form. These should be distinctly and concisely stated. No argument or narration is required while taking grounds of objection. Each ground should be numbered chronologically. Each objection should be different and not form the )art of another objection. It means that an objection taken should be complete in itself and not interdependent on another. An objection already stated in a Para should not be described subsequently n another form. Relief : It is a general practice to mention the relief sought by the appellant though it is not mandatory to is so. Generally the relief would be to set aside the decree appealed against but if the appeal is by a defendant against a decree passed against him, it may be enough to say that the decree be set aside and the suit be dismissed. DRAFTING Gallery www.lawtool.net Previous Next

  • The preamble

    NEPAL 1/1 NEPAL THE CONSTITUTION OF NEPAL DATE OF PUBLICATION IN NEFPAL GAZETTE 20 SEPTEMBER 2015 (2072.6.3) Preamble Constitution of Nepal 2015 (Nepali: नेपालको संविधान २०७२) is the present governing Constitution of Nepal. Nepal is governed according to the Constitution which came into effect on Sept 20, 2015, regarding the Interim Constitution of 2007. The constitution of Nepal is divided into 35 parts, 308 Articles and 9 Schedules . We, the Sovereign People of Nepal, Internalizingthe people's sovereign right and right to autonomy and eli-rule, while maintaining freedom,sovereignty, territorial integrity , national unity, independence and dignity of Nepal, Recallingthe glorious history of historic people's movements, armed conflict, dedication and sacriticeundertaken by the Nepalese people at times for the interest af the nation, democracy and progressive changen, and respecting for the martyrs and disappeared and victim citizens, Ending all forms of discrimination and oppression created by the feudalistic, autocratic.centralized, unitary system of governance, Protecting and promoting social and culturalsolidarity, tolerance and harmony, and unity in diversity by recognizing the multi-ethric,multi-lingual, multi-relagious, multi-cultural and diverse regional characteristics, Tesolving tobuild an egalitarian society founded on the proportional inclusive and participatory principles inorder to ensure economie equality, prosperity and social justice, by eliminating discriminationbased on class, caste, region, language, religian and gender and all farms of caste baseduntouchability, and Being committed to socialism based on democratic norms and valuesincluding, the people's competitive multiparty dermocratic system of governance, civilliberties, fundamental rights, human rights, adult franchise, periodic elections, tull freedom ofthe press, and independent, impartial and competent judiciary and concept of the rule of law,and build a prosperous nation, Do hereby pass and promulgate this Constit ution, through theConstituent Assembly, in order to tulfil the aspirations for sustainabie pecace, good governance,development and prosperity through the federal, democratic, republican, system of governance.

  • Writ Petition of Mandamus to High Court under Article 226 of Constitution to quash termination order | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back Writ Petition of Mandamus to High Court under Article 226 of Constitution to quash termination order English :- Writ Petition of Mandamus to High Court under Article 226 of Constitution to quash termination order, Reinstate Petitioner and pay back wages. A writ of mandamus is a direction to an authority to either do or refrain from doing a particular act. For instance, a writ to the Police Department to to strictly enforce Traffic Rules under the Acts. For a mandamus to be issued, it must be shown: a) That the authority was under obligation, statutory or otherwise to act in a particular manner; b) that the said authority failed in performing such obligation; c) that such failure has resulted in some specific violation of a fundamental right of either the petitioner or an indeterminate class of persons. Sample and brief format of Writ of Mandamus to High Court is given below. This is only body of the Writ Petition. Please include other details also: Hindi:- बर्खास्तगी आदेश को रद्द करने, याचिकाकर्ता को बहाल करने और वेतन वापस करने के लिए संविधान के अनुच्छेद 226 के तहत उच्च न्यायालय में परमादेश की रिट याचिका। परमादेश की एक रिट एक प्राधिकरण को किसी विशेष कार्य को करने या करने से परहेज करने का निर्देश है। उदाहरण के लिए, अधिनियमों के तहत यातायात नियमों को सख्ती से लागू करने के लिए पुलिस विभाग को एक रिट। परमादेश जारी करने के लिए, यह दिखाया जाना चाहिए: ए) कि प्राधिकरण एक विशेष तरीके से कार्य करने के लिए दायित्व, वैधानिक या अन्यथा के अधीन था; बी) उक्त प्राधिकारी ऐसी बाध्यता को पूरा करने में विफल रहे; ग) कि इस तरह की विफलता के परिणामस्वरूप या तो याचिकाकर्ता या व्यक्तियों के अनिश्चित वर्ग के मौलिक अधिकार का कुछ विशिष्ट उल्लंघन हुआ है। उच्च न्यायालय को परमादेश की रिट का नमूना और संक्षिप्त प्रारूप नीचे दिया गया है। यह रिट याचिका का एकमात्र निकाय है। कृपया अन्य विवरण भी शामिल करें: IN THE HIGH COURT OF DELHI AT NEW DELHI CIVIL ORIGINAL (EXTRA-ORDINARY) JURISDICTION WRIT PETITION (CIVIL) NO. OF 20__ (UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA) IN THE MATTER OF: 1. ________________________ S/o ______________________ R/o_______________________ PETITIONER VERSUS 1. ABC Company Ltd having its registered office at_____ Through its Chairman____ RESPONDENT NO. 1 2. The Managing Director ABC Company Ltd RESPONDENT NO. 2 WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING INTER ALIA FOR QUASHING THE IMPUGNED ORDER DATED ____PASSED BY RESPONDENT NO.1 AND REINSTATING THE PETITIONER IN SERVICE WITH ALL CONSEQUENTIAL BENEFITS INCLUDING BACK WAGES To, The Hon'ble Chief Justice of High Court, And His Companion Judges of the Hon'ble High Court of Delhi. The humble petition of the Petitioner above named. THE PETITIONER MOST RESPECTFULLY SHOWETH: 1. That the Petitioner is filing the present writ petition under article 226 of the constitution of India praying inter alia for quashing the impugned order dated ____ passed by Respondent No. 1______ and reinstating the petitioner in service with all consequential benefits including back wages. 2. That the petitioner is a citizen of India and is therefore entitled to enjoy all the rights guaranteed by the Constitution of India. 3. That respondent No. 1 is a company registered under the Companies Act, 2013 having its registered office at_________. 4. That respondent No. 2 is the Managing Director of the Company with powers of Appointment, termination and manage all day to day affairs of the Company. 5. The respondent-company is wholly owned by the Government of India and is, thus, an instrumentality of state is given in Article 12 of the Constitution. 6. That the petitioner was working as ______________ with respondent-company and was appointed on _______. He has been a diligent employee and been discharging his duties and obligations according to the employment norms and applicable rules of the Respondent Company. 7. That on_____ respondent No. 2 issued the impugned order dated_____ terminating the services of the petitioner without giving an opportunity to be heard to the Petitioner. The petitioner came to be relieved of his duties on ______. A copy of the impugned order is annexed hereto and marked as ANNEXURE-1. 8. The Petitioner states that the order of the termination of the service of the Petitioner was passed without following the due process of the principle of nature justice. 9. That the Petitioner has been discharging his duty as an employee according to the Respondent Company norms and therefore has not committed any act which would constitute as misconduct. GROUNDS 10. That the present Writ Petition is being filed on the following, amongst other, grounds without prejudice to each other; a. Because the petitioner being a permanent employee of the respondent-company his services could not be terminating without holding an enquiry under the rules applicable to the employees of the company. b. Because the termination of the Petitioner is against the principle of natural justice as the Respondent was not given opportunity to heard. d. Because the impugned order is arbitrary and contravenes Article 14 and Article 21 of the Constitution. 11. That the Petitioners have no other efficacious remedy except to approach this Hon'ble Court by way of this Petition under Article 226 of the Constitution of India. 12. That the Petitioners have not filed any other petition or preceding in any court or tribunal throughout the territory of India regarding the matter. PRAYERS In view of the facts & circumstances stated above, it is most respectfully prayed that this Hon'ble Court may be pleased to:- a) Issue a Writ of Mandamus to the Respondent 1 with a direction for quashing the impugned order and reinstating the Petitioner in service with all consequential benefits including back wages; b) Issue an appropriate Writ Directing the Respondents to pay Cost to the Petitioner; c) Any other relief, order or direction this court may deem fit and proper under the facts and circumstances of this case. AND FOR THIS ACT OF KINDNESS THE APPLICANT AS IN DUTY BOUND SHALL EVER PRAY. FILED BY: (________________) ADVOCATE FOR THE PETITIONER DRAWN ON: Drawn by: New Delhi Date: OTHER DOCUMENTS TO BE INCLUDED WITH WRIT PETITION OF MANDAMUS 1. Notice of motion 2. Urgent application 3. Court fee 4. Certificate 5. Synopsis & list of dates 6. Memo of parties 7. Annexure to the Petition 8. Application for exemption from filing certified copies, dim and small font Annexure with affidavit. 9. Vakalatnama on behalf of the petitioner. DRAFTING Gallery www.lawtool.net Previous Next

  • The preamble

    RUSSIA 1/1 We, the multinational people of the Russian Federation , united by a common fate on our land, establishing human rights and freedoms, civic peace and accord, preserving the historically established state unity, proceeding from the universally recognized principles of equality and self-determination of peoples, revering ... We, the multinational people of the Russian Federation, united by a common destiny on our land. asserting human rights and liberties, civil peace and accord, preserving the historic unity of the State, proceeding from the commonly recognized principles of equality and self-determination of the peoples. honoring the memory of our ancestors, who have passed on to us love of and respect for our homeland and faith in good and justice, reviving the sovereign statehood of Russia and asserting its imumutable democratic foundations, strving to secure the well-being and prosperity of Russia and proceeding from a sense of responsibility for our homeland before the present and future generations, and being aware of ourselves as part of the world community, hereby approve the Corstitution of the Russian Fedieration.

  • ORIGINAL - PETITION | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back 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. 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. 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. Special Enactments (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 DRAFTING Gallery www.lawtool.net Previous Next

  • PLEADING | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back PLEADING PLEADING Pleading is an art, and like any other art, its perfection depends only on practice. Pleadings are the backbone of litigation. Defective and bad pleadings are too many, and they are like bad diseases. PLEADING Pleading is an art, and like any other art, its perfection depends only on practice. Pleadings are the backbone of litigation. Defective and bad pleadings are too many, and they are like bad diseases. Meaning: Pleadings are statement of parties in writing, setting out their contention and claims or counter claims giving details, so that the opposite party may know what case he/she has to meet or what is the reply to his/ her case. Shri P.C. Mogha defines it as, "Pleadings are statements written, drawn up and filed by each party to a case stating what his contention will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer. " IMPORTANCE OF PLEADINGS: 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. Golden Rules of Pleading: In England, pleading is a customary law, while in India, it is much Codified. There are three golden rules of pleading, and they as are as under: [1] Plead facts, not law. [2] Plead facts, not evidence. [3] Plead facts, and only material facts. Material facts mean relevant and important facts. Objects of Pleadings: The object of pleadings as provided by the Supreme Court in the case of Ladle Prasad v. Kamal Distillery Co, AIR 1963 SC 1279, is to narrow down the parties to definite issues and to confine the trial within due limits so as to save time and expenses which might otherwise be needlessly thrown away. Object of Pleadings The whole object of pleading is to give a fair notice to each party of what the opponent's case is. Pleadings bring forth the real matters in dispute between the parties. It is necessary for the parties to know each other's stand, what facts are admitted and what denied, so that at the trial they are prepared to meet them. Pleadings also eliminate the element of surprise during the trial, besides eradicating irrelevant matters which are admitted to be true. The facts admitted by any parties need not be pursued or proved. Thus the pleadings save the parties much bother, expense and trouble of adducing evidence in support of matters already admitted by a party, and they can concentrate their evidence to the issue framed by the Court in the light of the facts alleged by one party and denied by the other. There is another advantage of the pleadings. The parties come to know before hand what points the opposite party will raise at the trial, and thus they are a prepared to meet them and are not taken by surprise, which would certainly be the case if there were no obligatory rules of pleadings whereby the parties are compelled to lay bare there cases before the opposite party prior to the commencement of the actual trial.On the basis of above discussion we deduce the following fundamental rules of pleading, which also have been incorporated in order VI of the Civil Procedure Code 1908. Fundamental Rules of Pleadings 1) That a pleading shall contain, only a statement of facts, and not Law; 2) That a pleading shall contain all material facts and material facts only. 3) That a pleading shall state only the facts on which the party pleading relies and not the evidence by which they are to be proved, 4) That a pleading shall state such material facts concisely, but with precision and certainty. DRAFTING Gallery www.lawtool.net Previous Next

  • Bail bond Format | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back Bail bond Format What is Bond and Bail bond under CrPC 1973 after Arrest under a Warrant? A bail bond is a written document signed by an accused person and his friends or families (known as surety), to ensure that the accused will appear before the court at the scheduled time and date, as ordered by the court. HINDI वारंट के तहत गिरफ्तारी के बाद CrPc 1973 के तहत बांड और जमानत बांड क्या है? जमानत बांड एक लिखित दस्तावेज है जिस पर आरोपी व्यक्ति और उसके दोस्तों या परिवारों (जिन्हें जमानतदार के रूप में जाना जाता है) द्वारा हस्ताक्षरित किया जाता है, ताकि यह सुनिश्चित किया जा सके कि आरोपी अदालत के आदेश के अनुसार निर्धारित समय और तारीख पर अदालत में पेश होगा। FORM NO.45 (Section 436, 437, 438 (3) and 441Cr.P.C.) In the Court of Shri _______________________________________ Police Station : Next date of hearing _____________ Under Section : Sent to Jail on _____________ F.I.R. No. : Bail Bond I, _________________________ son of Shri ________________________________ Resident of ___________________________________________________________ having been arrested or detained without warrant by the officer Incharge of ________________________ Police Station for having been brought before this Hon'ble Court charged with the offence of ________________________ and required to give surety for my attendance before such Officer or Court on condition that I shall attend such officer or Court on every day on which any investigation or trial is held with regard to such charge and in case of my making default there in I hereby bind my self to forfeit to Government the sum of Rs _______________ . DELHI DATED: Signature I ___________________________ son of Shri _____________________________ Resident of __________________________________________________ hereby declare myself for the above said Shri _____________________ that he shall attend the officer-in-charge of ______________________ Police Station or the Court of Shri ______________________________ every day on which any investigation in the charge is made or any trial on such charge is held that he shall be and re-appear before a such officer or Court for the purpose of such investigation to answer the charge against him (as the case may be) and in the case of his making default herein I have bind myself to forfeit to Government the sum of Rs. __________. Dated this _______________ day of _____________ 200___. Witnesses: 1. __________________ 2. __________________ Signature DRAFTING Gallery www.lawtool.net Previous Next

  • CRIMINAL | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back CRIMINAL COMPLAINT: Cases relating to crimes are triable by the Criminal courts of which the fir court is that of judicial or Metropolitan Magistrate Ordinary and simple crimes are tribal by Metropolita Magistrates, while the serious ones are initially investigated and then sent up to the sessions courts trial. The schedule appended to the code of Criminal procedure gives and provides a list of crimes and offences tribal by Metropolitan Magistrate and by the count of sessions. CRIMINAL (I) COMPLAINT: Cases relating to crimes are triable by the Criminal courts of which the fir court is that of judicial or Metropolitan Magistrate Ordinary and simple crimes are tribal by Metropolita Magistrates, while the serious ones are initially investigated and then sent up to the sessions courts trial. The schedule appended to the code of Criminal procedure gives and provides a list of crimes and offences tribal by Metropolitan Magistrate and by the count of sessions. What the students have to remember is that in cases of a serious nature where the police take cognizance of the case, it is the police which takes over the task of prosecuting the accused and leads evidence to establish the guilt of such. persons. In the cases of defamation, malicious prosecution complaints are generally taken up by the private individuals on their own expenses; Generally the formate used in all such complaints is similar because the complaint, whatever it nature, has to be filed before the Metropolitan Magistrate of the Area/District. Normally a criminal case begins with the filling of an F.I.R. with the police station of the area and if there is a serious case, fatal! serious injury/ rape etc. the victim (s) have to undergo medical examination in order to establish the nature of the injury and the real cause of the injury (death) etc. thereafter the prosecution completes the investigation and puts the accused on trial. Students are advised to read the CR. P. C. of the author for further commentary. There are certain private complaints which may be taken direct to the Metropolitan Magistrate with or without the participation of the police. However the complainant must have reported the nature and the facts of the case to the local police and must have obtained a receipt thereof which must from a part of the complaint. Hints on Drafting a Complaint : while drafting a complaint everyone should, remember the "Ten commandants" :- 1. Be brief, 2. Be positive, 3. Be precise, 4. Be relevant, 5. Plead fact and not evidence, 6. Plead fact not low, 7. Do not plead what the low or the court takes for granted or what the other side has got to prove. 8. Give particulars of fraud etc. 9. Do not change your terminology and do not use fine language or words that you do not understand. 10. Do not use the passive voice participle, phrases, pronouns or any sort of ambiguity. Form of Complaint: No special form as such is provided by law. The minimum requirements of a complaint are: i. It must be addressed to a Magistrate; 11. Stating facts which fulfill the ingredients to the offence complained of, iii. And praying for action against the offender for punishment. Apart from the other legal requirement, in practice the complaints are drafted in the following manner, and it should state; a.Name of the court in which the complaint is to be lodged; b.The Criminal case No. of the court c.The name and description including age, occupation and place of residence of the complainant. d.Then "versus" or "vs". e.The name or names of the accused with his address. f.The heading of- the complaint showing the section or section constituting the offences and prescribing punishment therefore. g.The body or the substance of complaint. It is usually commenced in anyone of the following manners: i.The complaint begs to state as follows: ii.May it please the complainant above named begs to state on oath or solemn affirmation as follows: iii.The complainant above named; iv.The prayer, v.The place and date; vi.Lastly the signature or the thumb mark of the complainant. vii.The list of witnesses to be examined. While giving the substance of the offence in the main body of the complainant, care should be taken to see that all the ingredients of the offences are complied with and incorporated without any exaggeration. It is advisable to avoid, as far as practicable, the details and circumstances of the commission of offence which consequently widen the scope of the cross-examination. To entitle a magistrate to take cognizance there should not, only a complaint, which means allegation of commission of offence, but it must contain facts which constitute the offence. The basic facts and materials should be pleaded on which the allegation is founded are required to be stated. Factual details or evidential details need not be however incorporated in the complaint, but it must contain the path and substance of primary facts on the basic if which the allegation of the commission of on offence is being made. Taking cognizance of an offence is the first and foremost step towards trial. The code of Criminal procedure has not defined the expression "cognizance of an offence" or "taking cognizance of an offence". Literally meaning of cognizance is knowledge or notice and taking cognizance of offence means taking notice, or becoming aware of the alleged commission of an offence. The judicial officer wit have to take cognizance of the offence before he could proceed to conduct a trial. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as seen as a magistrate as such applies his mind to the suspected commission of an offence for the purpose of proceeding to take steps (under sec.200, or section 202, 204) towards inquiry or trial. It includes intention of a judicial proceeding against an offender in respect of an offence or taking steps to see whether there is a basis for initiating Judicial proceeding. When a magistrate applies his mind not for the purpose of proceeding as mentioned above, but for taking action of some other kind, that is ordering investigation under sec. 156 (3), or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of the offence. A magistrate can take cognizance of an offence only within the time limits prescribed by law for this purpose (sec. 467 - 473) the accused is entitled to raise on objection to the maintainability of the complaint either on the ground of limitation or of jurisdiction or any other analogous ground. It is desirable that such preliminary points should be raised and decided at the beginning so that the time of the court could be saved and the accused person would also be saved from trouble and unnecessary expend time. There may be cases in which preliminary points should not be allowed to be raised. But there are cases where the objection goes to the very root of the maintainability of the complaint and in such cases it is not only permissible but desirable that such objections should be raised at the earliest opportunity and decided so that unnecessary waste of time of the court and of the litigant public might be avoided. An accused person has a right to raise a preliminary objection to the maintainability of the complaint and to have it decided so that he may not be put to the necessity of under going a trial in case he succeeds on the preliminary objection. The complaint is in the nature of an indictment. Therefore averments in a complaint must be established and properly proved by evidence. Before anyone can be convicted on charges formulated in a complaint, all those charge must be fully and properly proved in accordance with procedure and the law of evidence applicable to Criminal charges. DRAFTING Gallery www.lawtool.net Previous Next

  • Durga Prasad V Baldeo; 1880

    Durga Prasad V Baldeo; 1880 Durga Prasad V Baldeo; 1880 FACT: Latest article Durga Prasad had constructed some shops at the market with the promise of paying commissions on the sales made from the shop. Baldeo had spent some money for the improvement of the condition of the market on the authority of the government. The issue of a consideration was brought before the court. JUDGEMENT: The court nullified the agreement because of the lack of a consideration which must be as desired by the promisor.

  • Criminal Complaint u/s 138 of Negotiable Instruments Act | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back Criminal Complaint u/s 138 of Negotiable Instruments Act Format of Criminal Complaint u/s 138 of Negotiable Instruments Act against return of cheque. Draft format for filing criminal complaint under section 138 of Negotiable Instruments Act is given below to get idea to prepare the complaint. Draft Format of Criminal Complaint against return of Cheque Draft Format of Criminal Complaint against return of Cheque IN THE COURT OF _____________________________ COMPLAINT NO ___________ OF____ IN THE MATTER OF: Mr.____________________ COMPLAINANT VERSUS Mr. _______________ ACCUSED POLICE STATION:____________ COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 (AS AMENDED UPTO DATE) FOR THE SUM OF RS. ______________ (RUPEES ________________ ONLY) MOST RESPECTFULLY SHOWETH: That the Complainant is working as _________________________ and is residing at ______________________________________ That the present complaint is being field by the complainant Mr.___________________ to cause appearance in this Hon'ble Court and to depose and conduct the proceedings. That on _______________ the accused namely Mr. ______________ had approached the complainant personally and asked for a friendly loan of Rs. ________________. That on __________ complainant paid Rs. ___________ (Rupees _____________ as friendly loan repayable on demand. That towards payment of amount of loan the accused issued Cheque No. ______________ Dated ____________for Rs. ___________to the complainant. That in order to discharge their above said liability and in accordance with the agreed terms and conditions, the accused had issued Cheque No. _____________ Dated ___________for Rs. ___________/- drawn on ___________________. The said cheque was issued from Account No. ____________________which is held in the name of the accused. That the present complaint is based on the dishonor of the above said cheque which was issued in discharge of a lawful debt. That at the time of handing over the above said cheque the accused had assured the complainant that the said cheque will be honored/encashed on presentation. Taking the above assurance/representation as true, the complainant had accepted the above said cheque. That on the basis of the assurances given by the accused, the complainant presented the above said cheque with its bankers namely ___________________________________ and was dishonored vide cheque return advice dated _____ issued by the complainants bank. The aforesaid cheque was returned unpaid vide returning memo dated ____________with the remarks "FUNDS INSUFFICIENT". That the dishonor of the cheque clearly shows and establishes that the accused did not intend to honor the amount under the said cheque. That on account of the dishonor of the said cheque, the complainant had served a legal notice dated ____________upon the Accused by way of Registered Post vide Receipt No. _________________ dated ___________However, despite service of notice, the accused has not taken any steps to liquidate his liability and has failed to make balance payments to the complainant towards the amount covered under the said cheque, within the statutory period of 15 days or thereafter. Thus, the Accused has, therefore committed an offence within the meaning of Section 138 and other sections of the amended provisions of the Negotiable Instruments Act, 1881, for which he is liable to be prosecuted and punished. That the accused have failed to make payment against the said cheque which has been done by them malafidely, intentionally and deliberately and knowingly. That at the time of issuing the said cheques the accused were fully aware that the said cheques will not be honored on presentation. Therefore, the accused has dishonestly induced the complainant to advance a sum of _________________ /- (Rupees __________________ Only) fully knowing that he cannot repay the said amount to the complainant. That the accused is guilty offence under Section 138, Negotiable Instruments Act and is also liable to be prosecuted under Section 420 of the Indian Penal Code. That in view of the facts and circumstances, the complainant has a cause of action and right to file the present complaint. The cause of actions has arisen in favour of the complainant when, on the expiry of the notice period, the Accused has not come forward to pay the amount relating to the dishonored cheques. The cause of action is still subsisting and continuing in nature. That the cause of action has arisen at __________ as the cheques was issued at _________, and the same was payable at __________ and was also dishonored at _________. Therefore this Hon'ble Court has jurisdiction to try and adjudicate upon the present complaint. That the complaint is well within limitation period prescribed under the Act: i. Date of Dishonor ______ ii. Date of Notice ______ iii. Date of filing Complaint _______ That a list of documents and list of witnesses are annexed with this complaint. PRAYER It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to: Summon, prosecute and punish the Accused and also direct the accused to pay the amount as double to the amount covered under the said dishonored cheques, under the provisions of Section 138 read with Section 142 of the Negotiable Instruments Act,1881 as amended by the Negotiable Instrument laws (Amended and Miscellaneous Provisions) Act, 2002. In accordance with Section 357 of Code of Criminal Procedure 1974, out of the penalty imposed, the Accused be ordered to compensate the Complainant to the extent of Rs._______ /- (Rupees ______________ Only) and Such other and further orders may be passed as may be deemed fit and proper by this Hon'ble Court. It is prayed accordingly. PLACE: DATED: COMPLAINANT THROUGH : ADVOCATES DRAFTING Gallery www.lawtool.net Previous Next

  • (TAJ TRAPEZIUM CASE) M. C. Mehta v Union of India AIR 1997 SC 734

    (TAJ TRAPEZIUM CASE) M. C. Mehta v Union of India AIR 1997 SC 734 Activist-lawyer M. C. Mehta fought a long and arduous battle over the pollution caused by industries in the vicinity of the famous Taj Mahal in Agra, which were causing damage to the famous monument, especially from the Mathura refinery. Mehta moved the Supreme Court in 1984, claiming that the Sulphur dioxide released by the Mathura refinery combined with oxygen and moisture in the air to produce sulphuric acid in the atmosphere, which was corroding the white marble of the Taj Mahal. The petitioner also claimed that brick kilns, vehicular traffic and generator sets were also responsible for polluting the ambient air around the Taj, and that the white marble had yellowed and blackened in places. There were ugly brown and black spots at some places in the monument, Mehta also alleged. In his ruling, Justice Kuldip Singh observed that the Taj was not only a cultural heritage, but was an industry by itself since over two million tourists visit every year. It is a source of revenue for the country. The apex court created a Taj Trapezium,' which consists of 10,400 square kilometers of area roughly in the shape of a trapezium around the Taj. This was done to regulate the activities in the region so that pollution could be controlled. Industries were asked to shift to eco-friendly fuel and reduce the use of diesels generators. The Government of Uttar Pradesh was asked to improve power supply to the city so that the use of diesel generators could be reduced. Tanneries operating from Agra were asked to shift from the trapezium, The Central Pollution Control Boards and the UP Pollution Control Board were asked to monitor the quality of air and report the same to the court. The apex court also asked the government to take steps to undo the damage to the environment and the white marbles at Taj and to undertake cleaning up operations.

  • Drafting, Pleadings and Conveyancing | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back Drafting, Pleadings and Conveyancing GENERAL PRINCIPLES OF DRAFTING AND RELEVANT RULES The art of drafting the pleadings has not yet fully developed in spite of the increase in the civil litigation. As a matter of fact, the art of pleading should be the foundation course and great emphasis should be laid on this paper. Because of this absence of rigorous training, the young lawyers often indulge in prolixity rather than clarity and conciseness. Many dead-sure-win cases drag on for years in the courts only because of faulty drafting. Irrelevant matters, unnecessary details are often included and the facts placed before the lawyer by his client are not marshaled. The result is that the martial facts are often mixed up with inessential matter. Drafting, Pleadings and Conveyancing Drafting : To draft = To draw up = To outline in the form of rough notes. Pleading: (Definition, according to the Civil Procedure Code) Plaint or written statement, All statements are written statements. To Plead :To address the court as an advocate on behalf of the plaintiff or the defendant, i.e. client. Pleading: Formal written statements, replies to the accusations made Pleadings by the parties in a legal action. Conveyancing:To convey To give to somebody full legal rights in land or building = Real Property Land and Buildings. Conveyance : A document conveying the property. The meaning of the word DRAFTING is to draft or to draw up or to outline in the form of rough notes, while PLEADING, according to the Civil Procedure Code, means a Plaint, or a written statement. Therefore, all pleadings are written statements. To plead on behalf of the plaintiff or the defendant, The meaning of the word CONVEYANCING is O convey or to give to somebody full legal rights in land or building, which is called real property, and real property includes land and buildings. A conveyance means a document conveying the property. The importance of the study of law need not be explained. It is said that Law is the King of the Kings. It is, therefore, most powerful and rigid, too. In the whole world, there can be nothing stronger than law. With legal power, even the weak may be superior to the strong. At this background, we have to consider the fact that if Law is the King of the Kings, drafting or pleadings and conveyancing is undoubtedly the Queen of that King. GENERAL PRINCIPLES OF DRAFTING AND RELEVANT RULES The art of drafting the pleadings has not yet fully developed in spite of the increase in the civil litigation. As a matter of fact, the art of pleading should be the foundation course and great emphasis should be laid on this paper. Because of this absence of rigorous training, the young lawyers often indulge in prolixity rather than clarity and conciseness. Many dead-sure-win cases drag on for years in the courts only because of faulty drafting. Irrelevant matters, unnecessary details are often included and the facts placed before the lawyer by his client are not marshaled. The result is that the martial facts are often mixed up with inessential matter. According to Lord Halsbury - "Where system of pleading may exist, the sole object of it is that each side may be fully alive to the questions that are about to be argued in order that they have an opportunity of bringing forward such evidence as may be appropriate to the issue" Pleading is an art, of course, and art which requires not only technical and linguistic skill but also an expert knowledge of the law on the given point brought before a lawyer. Even experienced lawyers and attorneys are not infallible and sometimes they also make mistakes. However, in the matter of pleadings longer experience and a great linguistic acumen are both essential ingredients. What ultimately matters is how clearly and systematically have the facts been presented before the court of law. DRAFTING Gallery www.lawtool.net Previous Next

  • WRITTEN STATEMENT (ORDER VII) C.P.C. | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back WRITTEN STATEMENT (ORDER VII) C.P.C. WRITTEN STATEMENT (ORDER VII) C.P.C- A written statement is required to be filed by the defendant in answer to the claim made by the plaintiff in his plaintiff, which is delivered to the defendant along with the summons to attend at the first hearing of the suit. The number of the suit is noted in the summons. WRITTEN STATEMENT (ORDER VII) C.P.C A written statement is required to be filed by the defendant in answer to the claim made by the plaintiff in his plaintiff, which is delivered to the defendant along with the summons to attend at the first hearing of the suit. The number of the suit is noted in the summons. Before drafting a written statement, one should verify the provisions set out for drafting a plaint under order VI of CPC. Examine whether the suit is barred under order II Rule 2 CPC, carefully study the material facts and the documents referred to in the plaint, check whether the documents are duly stamped, see that the material facts are specifically denied. Study order VIII, CPC, make sure set-off or a counter-claim to be pleaded or not. Verify also whether the claim is barred under principles of res judicata. In the written statement, the defendant should mention at the top the name of the judge or court, trying the suit. Next, the name of the parties first named are mentioned, as it is not necessary to mention the names, description and place of residence of all the parties in the title of the written statement. The answering defendant thereupon replies to each Para of the plaint, unless there is some preliminary objection, the consideration of which is necessary in the first instance before the suit is tried on the merits of the case. Objections relating to the maintainability of the suit, locus standi of the plaintiff to file the suit, the non-joinder or mis-joinder of parties as to the jurisdiction of the court or as to limitation may: be included in the preliminary objection. Similarly, objections relating to court fees paid or valuation of the suit for process of jurisdiction are taken up in the first instance, The defendant may have additional facts to be stated which do not find and appropriate place in reply to the assertions made by the plaintiff in his plaint such additional facts or pleas maybe added in the written statement as additional pleas. The filing of a written statement by any defendant, whether it is a Government or not a Government, whether it is an ordinary person or a statutory body a corporation or any body else, is covered by the same provision, namely, order VIII, Rule 1.there is no other provision dealing with the filing of a written statement. 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. Every allegation of fact in this plaint, if not denied specifically of by' necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted. The pleading 'not know' is not tantamount to the pleading 'not admitted'. So also the plea of no knowledge' of fact pleaded in the plaint is not tantamount to a 'denial' of the existence of those facts and does not even amount to an implied denial according to order VIII, Rule 3 or Rule 5. DRAFTING Gallery www.lawtool.net Previous Next

  • The preamble

    GERMANY 1/1 GERMANY The German constitution, the Basic Law (Grundgesetz), guarantees the right to own property, freedom of movement, free choice of occupation, freedom of association, and equality before the law . Conscious of their responsibility before God and Men, Animated by the resolveto serve world peace as an equal partner in a united Europe, the German people haveadopted, by virtue of their constituent power, this Basic Law. The Germans in the Laender ofBaden-Wuerttemberg, Bavaria, Berlin, Brandenburg, Bremen, Hamburg Hesse, Lower Saxony ,Mecklenburg-Western Pomerania, North-Rhine-Weststphalia, Rhineland-Paltinate, Saarland,Saxony, Saxony-Anhalt, Schleswig-Holstein, and Thuringia have achieved the unity and freedom ofGermany in free self-determination This Basic Law is thus valid for the entire German People.

  • A.K GOPALAN VS. STATE OF MADRAS, 1950

    A.K GOPALAN VS. STATE OF MADRAS, 1950 A.K GOPALAN VS. STATE OF MADRAS, 1950 ISSUE AK Gopalan was a Communist leader who was kept in the Madras Jail in 1950 under the Preventive Detention Law. By writ of Habeas Corpus in accordance with Article 32 of the Indian Constitution Law, he tested his detainment while contending that Sections 7, 8, 10, 11, 12, 13, and 14 of the Act abuses Articles 13, 19, and 21 of the Indian Constitution and along these lines, the said Act is ultra vires of the essential thing arrangements as revered under the Constitution of India. The solicitor further represented the issue of the Indian Constitution’s ‘method characterized by resolution’ condition. The case involved the following issues: • Whether section 7, 8, 10, 11, 12, 13 and 14 are ultra-virus and violates the Art. 13, 19 and 21. • Whether article 19 and 21 are interrelated to each other in the protection of life and liberty. • Whether the detention of the petitioner under the Preventive Detention Act, 1950 is illegal. • Whether article 22 is the complete code in itself while dealing with preventive detention cases. JUDGMENT Then again, while dismissing the applicant’s contentions, the Hon’ble Supreme Court of India fought that Article 22 of the Indian Constitution is an independent Code and that he was kept by the system set up by law. The court additionally held that if an individual’s freedom is removed by the State as per the system set up by law for example in the event that the detainment was according to the technique of law, at that point it can’t be said that it disregards the arrangements contained in Article 14, 19 and 21 of the Constitution of India. In this specific case, the Supreme Court took a restricted perspective on Article 21 of the Constitution of India. While applying the regulation of severability, the zenith court pronounced segment 14 as void as it discovers it to be unconstitutional and violative of the key rights. Court stated the rule of system set up by law and proclaimed the use of fair treatment condition and worldwide common liberties contracts unimportant in Indian premises. Further, the court proclaimed segments 7, 8, 10, 11, 12, and 13 as intrainfection the constitutions, thus legitimate. At long last, the Court found that the detainment was legitimate and thus writ was discarded in like manner.

  • SALOMON v SALOMON & Co [U.K. 1897]

    SALOMON v SALOMON & Co [U.K. 1897] Aaron Salomon was a successful leather merchant who specialized in manufacturing leather boots. For many years he ran his business as a sole trader. By 1892, his sons had become interested in taking part in the business. Salomon decided to incorporate his business as a Limited company, Salomon & Co. Ltd. At the time the legal requirement for incorporation was that at least seven persons subscribe as members of a company i.e. as shareholders. Mr. Salomon himself was managing director. Mr. Salomon owned 20,001 of the company's 20,007 shares - the remaining six were shared individually between the other six shareholders (wife, daughter and four sons). Mr. Salomon sold his business to the new corporation for almost £39,000, of which £10,000 was a debt to him. He was thus simultaneously the company's principal shareholder and its principal creditor. When the company went into liquidation, the liquidator argued that the debentures used by Mr. Salomon as security for the debt were invalid, on the grounds of fraud. The judge, Vaughan Williams J. accepted this argument, ruling that since Mr. Salomon had created the company solely to transfer his business to it, the company was in reality his agent and he as principal was liable for debts to unsecured creditors. High Court: The judge, Vaughan Williams J. accepted this argument, ruling that since Mr. Salomon had created the company solely to transfer his business to it, then the company and Salomon were one unit; the company was in reality his agent and he as principal was liable for debts to unsecured creditors. The appeal: The Court of Appeal also ruled against Mr. Salomon, on the grounds that Mr. Salomon had abused the privileges of incorporation and limited liability, which the Legislature had intended only to confer on "independent bona fide shareholders, who had a mind and will of their own and were not mere puppets". The lord justices of appeal variously described the company as a myth and afiction and said that the incorporation of the business by Mr. Salomon had been a mere scheme to enable him to carry on as before but with limited liability. The Lords: The House of Lords unanimously overturned this decision, rejecting the arguments from agency and fraud. Salomon followed the required procedures to set the company; shares and debentures were issued. The House of Lords held that the company has been validly formed since the Act merely required 7 members holding at least one share each. There was no fraud as the company was a genuine creature of the Companies Act as there was compliance and it was in line with the requirements of the Registrar of Companies. The Company is at law a separate person. The 1862 Act created limited liability companies as legal persons separate and distinct from the shareholders. They held that there was nothing in the Act about whether the subscribers (i.e. the shareholders) should be independent of the majority shareholder. It was held that: "Either the limited company was a legal entity or it was not. If it were, the business belonged to it and not to Mr Salomon. If it was not, there was no person and nothing to be an agent [of] at all; and it is impossible to say at the same time that there is a company and there is not." Hence the business belonged to the company and not to Salomon, and Salomon was its agent. The House further noted: "The company is at law a different person altogether from the [shareholders] ...; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands received the profits, the company is not in law the agent of the [shareholders] or trustee for them. Nor are the [shareholders], as members, liable in any shape or form, except to the extent and in the manner provided for by the Act."

  • Indian Laws, Bare Acts

    < Back THE PETROLEUM ACT, 1934 (Act No. 30 of 1934) THE PETROLEUM ACT, 1934 (Act No. 30 of 1934) An Act to consolidate and amend the law) relating to the import, transport, storage, production, refining and blending of petroleum [16th September, 1934] Whereas it is expedient to consolidate and amend the law relating to import, transport, storage, production, refining and blending of petroleum. It is hereby enacted as follows: CONTENTS Chapter I : Preliminary Chapter II : Control Over Petroleum Chapter III : The Testing Of Petroleum Chapter IV : Penalties And Procedure Chapter V: Supplemental THE SCHEDULE first_schedule second_schedule third_schedule fourth_schedule THE PETROLEUM RULES, 1976 Part I : Preliminary Part II : General Provision Part III : Importation of Petroleum Part IV : Importation by Sea Part V : Importation by Land Part VI : Transport of Petroleum Part VII : Transport by Water Part VIII : Coastwise Transport of Petroleum Class a Otherwise Than in Bulk Part IX : Transport on Land by Vehicles Part X : Transport by Pipelines Part XI : Electric Installation Part XII : Storage of Petroleum Requiring Licence Part XIII : Storage of Petroleum Class C Not Requiring a Licence Part XIV : Licences Part XV : Refining And Blending of Petroleum Part XVI : Tetra Ethyl Lead Mixtures Part XVII : Testing of Petroleum Part XVIII : Notice of Accident Part XIX : Exemption Previous Next

  • CRIMINAL MISCELLANEOUS PETITION | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back CRIMINAL MISCELLANEOUS PETITION In offences state becomes the party and the accused has to put up his defence. It is the duty of the prosecution on behalf of the state to prove the guilt of an accused. In such a situation the aggrieved party is not required to institute any petition. It is the responsibility of the state to launch prosecution against the criminal who has committed the offences of Criminal nature. CRIMINAL MISCELLANEOUS PETITION In offences state becomes the party and the accused has to put up his defence. It is the duty of the prosecution on behalf of the state to prove the guilt of an accused. In such a situation the aggrieved party is not required to institute any petition. It is the responsibility of the state to launch prosecution against the criminal who has committed the offences of Criminal nature. The constitution of India empowers the Supreme Court and the High Courts under Art. 32 and 226 to provide remedy to the petition by way of issuing writs the jurisdiction of the High Court under 226 is in nature of ordinary original jurisdiction. It empowers every High Court, within its territorial jurisdiction to issue directions, orders or writs including writs in nature of habeas corpus etc. for the enforcement of any of the fundamental rights as well as "for any other purpose". By virtue of Art.227 every High Court has superintendence on all courts and tribunals through out the territories in relation to which it exercises jurisdiction except those constituted under any law relating to armed forces. The High Court May a)Call for returns from such courts; b)Make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts, and c)Prescribe form in which books, entries and accounts shall be kept by the officers of any such courts. It must be remembered that in exercise of its jurisdiction under 227 High Court does not act as a court of appeal. It cannot, therefore, review or reweigh the evidence upon decision. The supervisory jurisdiction conferred under Art.227 is limited to seeing that the inferior court or tribunal functions within limits of its authority and not to correct any error of law. (Mohd.Yunus V. Mohd. Mustquim AIR 1984 SC 38, 40) Under the code of Criminal procedure High Court has also empowered its inherent jurisdiction, under sec. 482 Under this sec. the High Court may be exercised its inherent powers in a proper case either to prevent the abuse of process of any court or to secure the ends of justice. Inherent power of the High Court should be exercised only in the exceptional cases. (Amar Chand V. Shanti Bose, AIR 1973 SC 799) In the following cases the inherent jurisdiction of the High Court should be exercised to quash the proceedings. (R.P. Kapur V. state of Punjab AIR 1960 SC 866) i. Where there is a legal bar against the institution or continuance of the proceedings; ii. Where the allegations in the first information or complaint do not constitute the offence alleged; and iii. Where either there is no 'legal evidence adduced in support of the charge or the evidence adduced in support of the charge or the evidence clearly or manifestly failed prove the charge. No limitation period has been prescribed for making an application under sec. 482 Cr. P.C. However the application is to be filed within a reasonable time. The High Court may, to prevent the abuse of the process of court and secure the ends of justice, in a long drawn out proceedings where no prima-facie case is made out against the accused, internee and quash the proceedings, for more details for this provision or inherent powers of the High Court student should consult sec. 482 Cr. P.C. from their text book and bare Act. of Cr. P.C. DRAFTING Gallery www.lawtool.net Previous Next

  • The preamble

    SWITZERLAND 1/1 The Federal Constitution (SR 101) is the constitution of the Swiss Confederation. It is the primary piece of legislation in the Swiss legal system, taking precedence over all the federal, cantonal and communal acts, ordinances and other enactments; these may not contradict the Constitution. In the name of God Almighty! We, the Swiss People and the Cantons, being mindful of our responsibility towards creation, in renewing our alliance to strengthen liberty and democracy, independence and peace in solidarity and openness towards the world, determined, with mutual respect and recognition, to live our diversity in unity, conscious of our common achievements and our responsibility towards future generations, certain that free is only who uses his freedom, and that the strength of the people is measured by the welfare of the weak, hereby adopt the following Constitution:

  • The preamble

    INDIA 1/1 Preamble declares India to be a sovereign, socialist, secular and democratic republic . The objectives stated by the Preamble are to secure justice, liberty, equality to all citizens and promote fraternity to maintain unity and integrity of the nation. WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into aSOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE , social, economic and political; LIBERTY of thought, expression, belief, faith andworship; EQUALITY of status and of opportunity, and to promote among them all FRATERNITY assuring the dignity of the Individual and the unity and integrity of the Nation: IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION

  • CIVIL- PLEADING - PLAINT | www.lawtool.net

    CONTENTS DRAFTING OF PLEADING AND CONVEYANCING - General Principles of Drafting and Relevant Rules CIVIL - Plaint - Written Statements - Interlocutory Applications - Original Petition - Affidavit - Execution Petition - Memorandum of Appeal and Revision - Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL - Complaint - Criminal Miscellaneous Petition - Bail Application - Memorandum of Appeal and Revision CONVEYANCING - Essentials of a Deed - Sale Deed - Mortgage Deed - Lease Deed - Gift Deed - Promissory Note - Power of Attorney - Will - Agreements < Back CIVIL- PLEADING - PLAINT PLAINT: Particulars to be contained in plaint provided under order VII, Rule 1. According to this rule the plaint shall contain the following particulars. PLAINT: PLAINT: Particulars to be contained in plaint provided under order VII, Rule 1. According to this rule the plaint shall contain the following particulars. a) The name of the court in which the suit is brought; for ex. "in the court of District Judge al N. Delhi" when the suit is to be filed before the district judge, The number, of the suit has to be noted in the following line titled "suit No- of 2009". b) Next to the heading the name, description and place of residence of the plaintiff, c) The name, description and place of residence of the defendant, so far as they can be ascertained; d) Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect, e) The facts constituting the cause of action and when it arose,; f) The facts showing that the court has jurisdiction; g) The relief which the plaintiff claims; h) Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount 50 allowed or relinquished, and (i) A statement of the value of the subject matter of the suit for the purpose of jurisdiction and of court- fees, so far as the case admits. Plaint Structure Name of the court in which the suit is filed indicated at the top of the first page. Just below the name of the court, a space should left for the number of the suit. Therefore the names of the parties to the suit with all necessary particulars should be given. For ex.: (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 relied in the suit. The plaintiff seeking relief for district claims or causes of action founded upon separate and district grounds shall state all of them distinctly and separately as far as possible. (2) Formal part of the plaint shall state the following essential particulars: (i) date when the cause of action arose,  Statement showing that the court has jurisdiction; Statement of the value of the suit for the purpose of jurisdiction and court fees and it should be stated that the necessary count fee has been affixed/paid. When a suit is filed after the expiry the period of limitation a statement showing the ground or grounds on which he has claimed exemption from limitation. Every relief sought for by the plaintiff should be accurately worded. The plaintiff can claim more then one relief, in the suit. He can seek reliefs alternatively. If the plaintiff can seek more than one relief on the same cause of action he must seek all. If he omits to seek a relief in the suit his subsequent suit for such relief omitted would be barred under order 2. Rule 2 CPC unless he has obtained leave in the earlier suit to file a fresh suit on the said relief omitted. 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. Affidavit should also be enclosed with plaint as provided under CPC order 6 Rule 15 (4). All documents on which the plaintiff relies for his claim should be enclosed with a separate Iist of documents according to order 7 Rule 14 (1) CPC 1908. DRAFTING Gallery www.lawtool.net Previous Next

  • Baswarooponi v.Babulalsoni BCI DC Appeal No.25/1992

    Baswarooponi v.Babulalsoni BCI DC Appeal No.25/1992 Babulalsoni is the father of Balswaroopsoni. He filed a complaint against his son alleging professional misconduct before the Madhya Pradesh Bar Council. The allegations are as follows: 1. A criminal case under S.307 I.P.C. is pending against him. 2. while appearing as a defence counsel for one munna in a criminal case No.125/89 he has introduced his own brother as Dwarha Pradesh and arranged him to stand as surety for munna. 3. He has withdrawn a sum of Rs.1500 deposited in the court in the name of Babulalsoni in a civil case without his consent. Before the State Bar Council, Babulalsoni personally appeared and produced certain documentary evidence in support of his case but the present appellant did not appear though many chances are given to him. Finally the Bar Council held that Balswaroopsoni is guilty of professional misconduct and passed an order removing his name from the Advocates Roll. Against this order Balswaroopsoni filed an appeal the Bar Council of India. In the appeal he denied all the allegations against him but, failed to produce any documentary evidence in his support. Regarding the second allegation he took a defence that munna brought one person and introduced him as Dwarakha Prasad. Believing Munna’swords only he also introduced him to the court as Dwarakha Prasad. This defence was not accepted by the Bar Council of India because Balswaroopsoni knows that the person brought by Munna Dwarakha Prasad. Regarding the third allegation he took the defence that he is also one of the plaintiff in the said case and his father has given power to withdraw that amount of Rs .1500/.But no documentary evidence in support of this difference was produced by him. After hearing the parties the Bar Council of India reduced the punishment and suspended him from practice for a period of 5 years.

  • Indure Ltd.v.Deo Raj Guptha BCI TR Case No.58/1993

    Indure Ltd.v.Deo Raj Guptha BCI TR Case No.58/1993 The complainant company is one of the highest producer of ash handling system in the world, having large manufacturing and engineering factories. The respondent was the Advocate of the company and various cases related to the company was entrusted with him. In April 1986 NELCO precisions, a company located atFaridabad gave a false advertisement in the papers that Indure Ltd. is using the parts manufactured by NELCO precisions. To stop this false advertisement Indure Ltd. instructed the respondent to serve a legal notice to NELCO. Notice was sent, but the notice has not given the desired result. Therefore, the respondent was instructed to file a case against NELCO. A plaint was prepared and it was approved by the petitioner company and necessary court fees was also paid to him. The respondent informed the complainant that he has filed the suit in the Delhi High Court and got a stay order. Infact no suit had been filed. The complainant filed a complaint in the Bar Council of U.P.alleging professional misconduct against the respondent. They alleged that the respondent had made a similar type of misrepresentation earlier also when he was instructed to file a case against Anoel Industries Ltd.A criminal complaint was also filed against Gupta in this regard. The respondent filed a very brief counter and failed to give any explanation about the serious allegation of professional misconduct. He simply prayed that for the same matter there is already a criminal case pending against him, so the Bar Council should not proceed with the complaint. When the petition was pending before the Bar Council, the criminal case was disposed off and he was convicted. Since the U.P Bar Council could not able to complete the enquiry within one year the petition was transferred to the Bar Council of India. The Bar Council of India examined the complainant and the respondent and finally came to the conclusion that the allegations against the respondent the complainant has been proved beyond reasonable doubt and directed the removal of his name from the roll of Advocates and prohibited him from practicing as an Advocate.

  • The State Trading Corporation of India Ltd. & Ors V. The Commercial Tax Officer, Visakhapatnam & Ors; 1963

    The State Trading Corporation of India Ltd. & Ors V. The Commercial Tax Officer, Visakhapatnam & Ors; 1963 FACTS: The State Trading Corporation had approached the court for the issuance of special writs against agencies of the state governments based on sales tax which were targeted on the corporation. The petition was to ascertain the facts in Article 32 of the Constitution which allows the Supreme Court to issue special orders for the enforcement of the rights of citizens. The question as to whether the State Trading Corporation which is a company that is registered under the Indian Companies Act, 1956 can be regarded as a citizen and can seek for the enforcement of thefundamental rights of citizens and whether the STO is an organ of the government and can request for the enforcement of the rights of citizens against a state as under part III of the constitution of India. JUDGEMENT: Latest article The Appeal was dismissed by the Supreme Court on the 26 of July 1963 because as implied by the Powers of the Corporate entity; all citizens are persons but all persons cannot be a citizen and a Company or a corporation ceases to be a person from the date of its incorporation. Also, since the corporation performs the functions of a commercial entity, it cannot be regarded as an organ or a department of the government of India.

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