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1 92

PLEADING , DRAFTING AND CONVEYANCING

h e h a s omitted to concur in such appointment although more


tha~ 30 days have elapsed since the service of the aforesaid
notice.
9. It is prayed th_at an arbitrator be appointed, under Section 11
of the Arb1tr~t10n Act, with the direction to give his award in
a ccordance with law. CHAPTER 6
Place ............ .
Sd- ......
Date .......... .. .
Applicant
ORIGINAL PETITION
Sd-.. ......
Advocate Introduction.
Application and Petitions or Suits are somewhat identical term
which are almost governed by Code of Civil Procedure , 1908 except whe1
a case is of a criminal nature then it is governed by the Code of Crimim
Procedure, 1973. However, in practice, the words 'Petitions' and 'Suits' ar
generally used to mean formal applications for seeking legal remedy. Su i
of a civil nature is ordinarily tried in civil court. Every person has
right to bring a suit of a civil nature and the civil court has jurisdictio
to try all the suits of a civil nature. According to Section 9, C.P.C. , a
suits of a civH nature are within the jurisdiction of the civil court excei;
those of which cognisance is either expressly or impliedly barred . It i
relevant to mention in this context that even executive orders , whic
violate principles of natural justice, can be challenged in a civil court, th
suit being of a civil nature. [Anand Babu Agarwal v. Ajodhya Prasa
Tewari, 1981 ALJ 1317.) A suit is said to be impliedly barred when it
barred . by general principles of law or on grounds of general policy. [R. V :
Mani v. Balkrishna, AIR 1953 Nag 302.) It is a fundamental principle
law that a person having a grievance of a civil nature has, independent
of any statute, a right to institute a suit in a civil court and that eve·
presumption should be made in favour of jurisdiction in a civil court, ar
the existence of the jurisdiction of a civil court should not be light
assumed.
Every civil suit shall be instituted by presenting a plaint to the cou
or such officer as it appoints in this behalf. There are different grades
courts in a State, in respect of their pecuniary, territorial or oth
exclusive jurisdiction with regard to the subject-matter. Every suit sh:
be instituted in the court of the lowest grade competent to try it.
Section 16, C.P.C. deals with the place of suing which lays dO\
that :
"Suits to be instituted where subject-matter situate.-Subject to t
pecuniary or other limitations prescribed by any law, suits-
(a) for the recovery of immovable property with or without re
or profits;
(b) for the partition of immovable property;
(c) for foreclosure, sale or redemption in the case of a mortgf
of or charge upon immovable property;
(d) for the determination of any other right to or interest
immovable property;
( 93 )

i
95
ORIG INAL PETITION
PLE ADING , DRAFTING AND CONVEYANCING
. •t f whose jurisdiction-
(cl for co mpe nsa ti on for wrong to immovable property; the local hm1 s o h f the defenda nts where there are
( f) for th e recovery of immovable property actually under (a) the defendant, . or ~;~he ocommencement of the suit , actually
d ist rai nt or a ttachm ent, more than one , at t~e time . n business, or p er sonally works
and voluntarily resides , or carries o
di be in s tit uted in the court within the local limits of whose jurisdiction
pro pe rty is si tu a te : for gain; or l re there are more than one, at
Provid ed that a su it to obtain relief respecting, or compensation for (b) any of the defendants , wf 1teh 't actually and voluntarily
ncement o e sm , ·d d
mg t o, immovable property held by or on behalf of the defendant may, the time of t h e commbe . r personally works for gain , provi e
'd
res1 es, or c arries on usmess h l o of the court is given, or t h e
. .
ere t he r elie f sought can be entirely obtained through his personal
,die nce, be insti t uted either in the court within the local limits of whose that in such case either t de eave ry on business or personally
d t resi e or car ,
isdiction th e property is situate, or in the court within the local limits defendants ~ho o nfio . d ~cquiesce in such institution; or
whose jurisdicti on the defendant actually and voluntarily resides , or works for gam, as a oresa1 ' . . "
f f wholly or m part, anses.
r ies on bu siness , or personally works for gain." (c) the cause o ac w_n, shall be deemed to carry on busin~ss
According to section 17, C.P.C., if the immovavle property in. dispute Explanation.-A corpor~tl<f d " in respect of any cause of action
1a te within the jurisdiction of different courts, the suit may be at its sole ·or principal offic~/~ n :1~00: subordinate office, at such place.
:ituted in any court within the local limits of jurisdiction any portion arising at any place where i as . . following illustrations attached
the property is situate provided that, in respect of . the value of the To understand the above provisions,
ject-matter of the suit, the entire claim is cognizable by such court. .
to Sect 10n 20 , ere
· meaningful : . C tta B carries on b usmess · ·
in
Section 18, C.P.C ., contains the provision for place of institution of "(a) A is a tradesman in a1cu . d of A and requests A
: where local limits of jurisdiction of courts are uncertain . Where it is Delhi. B - by his agent in Calcu~ta, :~ri~;ooC~mapny. A delivers the
ged to be uncertain within the local limits of the jurisdiction of which to deliver them to the East InAdian sue J for the price of the goods
;wo or more courts any immovable property is situate, any of those goods accor din gly in Calcutta · may f action has arisen , or in · D elh1' ,
rts may if s atisfied that there is ground for the alleged uncertainty, either in Calcutta, wher~ the ..cause o
,rd a statement to that effect and thereupon proceed to entertain and where B carries on business. th t " Every suit shall be instituted by
,ose of any suit relating to that property and its decree in the suit Section 26, C.P.C. lays _d own _a such other manner as may be
U ha ve the sam e effect as if the property were situate within the local the presentation ~f . a plamth ~r ;n_ t is an important document which
ts of its jurisdiction : provided that the suit is one with respect to prescribed.'.' Thus , it . l~ cltaret~ti~o~ ~; suit. Therefore , it is necessary to
ch the court is competent as regards the nature and value of the suit is the basis of a ongma P . t t ain Order VII Rule 1, C.P.C.
!Xercise jurisdiction . · ~;n what particulars a plaint mus con . '
asce rt = ..
The afor esaid provisions of C.P.C. are in respect of place of suing lays down the following provision
,re the s ubject-matter of dispute is immovable property.
Section 19, C .P.C. deal s with the suits for compensation for wrongs
Particulars to be contained in plaint. .
>erson or mov a bles which lays down that : The plaint shall contain the following particular~ . b ht·
t - hich the smt 1s roug ,
"\.Vhe re a su it is for compensation for wrong done to the person (a) the name of the cour m w .d of the plaintiff
or to movable property, if the wrong was done within· the local limits (b) the name , des_cription and place of res1 ence .d of th;
. . d phce of res1 ence
of the jurisdiction of one court and the defendant resides, or catries (c) the name, description an .'
on business or personally works for gain , within the local limits of defandant , so far as they can be ascertained ; - . erson
the jurisdiction of another court, the suit may be instituted at the (d) where the plaintiff or the defendant is a mmor or a p
option of the plaintiff in either of the said courts." mind a statement to that effect; .
of unsoun d , f t ion and when it arose;
The follo wing ill u strations attached to Section 19 will explain the (e) the facts constituting the cause o ac . . . . .
ris ion clearly : . . that the court has Junsd1cbon ,
(t) the facts s h owmg .
(a ) A residing in Delhi, beats B in Calcutta. B may Sue A (g) the relief which the plaintiff c:ims; t- ff or relinquished a
eithe r in Cakutta or Delhi.
(h) where the plaintiff hast allowl~ow:d s~r orelinquished; a nd
(b) A , residing in Delhi , publishes in Calcutta statements hi l ·m the amoun so a ·t
d efamato ry of B . B may sue A either in Calcutta or in Delhi . portion of s c a1 ' f the subject-matter of th e su1
(i) a statement. ot: t~e. value do of court-fees , so far as the case
S ection 20 , C.P.C. relates to other suits to be instituted where for the purposes of Junsd1ction an
ndan t res id es or cau se of action arises . It lays down that "Subject to
limi tation a fores aid , every suit shall be instituted in a court within admits .
~ PLEADING , DRAFTING AND CONVEYANCING ORIGINAL PETITION 97

I (a) The plaint shall contain t h e nam e of the court in which the suit repeated in the plaint and the s ame should be mentioned at the
is brought. There is n o need of m entionin g the name of the Judge or- the • appropriate place. If the case is rela ted to property, fu ll descri ption of
Presi ding officer. e.g.- . . property viz . Number of Plot or House, location , surround ing bou ndaries
In the Court of Munsif East at .......... .. of plots and houses be clearly specified. The da te on which the cause of
action arose is very material and if need be , time a nd place of occurrence
In the Court of District Judge at.. ........ ...... .
of the cause of action must be given .
In the High Cou r t of Judicature at.. .... .. .... ........... .
The pleader has to be very careful in drafting the petition . All
In the Suprem e Court of India at New Delhi . particulars required to be alleged by law and duly supported by m ate rial
~t is also prp~er t o m ention the type of jurisdiction which is being facts must be given . The pleader should ensure tha t no relevan t particula r
exerc1~ed ?Y .th ~ J:Iigh <;ou r t or the Supreme Court or · other court having is omitted . As far as possible the grounds on which the peti ti on is based
exclusive Junsd1ct10n with regard to a subj ect-matter. Thus- should be stated in the language of statute under which th e a ppli catio n
In re civil origin al jurisdiction . or petition is made .
In re matrimon ial jurisdiction, etc . The facts may be pleaded on the basis whereof th e p lai ntiff may
The plaint shall n ext contain the suit number. At the time of filing claim in alternative one relief or the other. The plain ti ff must gi ve s uch
a plaint the plac~ for giving a s uit number is left blank which is pa rticulars as will enable the defendant and the court t o asce rtai n from
mentioned or fi lled in by t h e office of the r espective court. In the plaint t he pl ai nt whether factually and legally the ca use of a ction d id a r ise as
only year sh ould be writt en . e.g. suit No .. .... of 2009. Hence we file a a ll eged or not. Where the suit is filed for the r ecovery of mo ney, the
suit without su it No . which is to be filled in afterwards by the court. plaint shall state the precise amnw1t claimed. As has been s t a ted ea rl ie r,
the plead ings should be in a concise form , but with precision . Th er e sho ul d
(b ) Particulars regarding plaintiff.-The plaint shall next contain
not be any ambiguity in the statement of facts. The lack of a ma te ri al
the name, d escription and pl a ce of r esidence of the plaintiff. If there are
fact in the averments in the plaint was sufficient to d ism iss t h e s uit as
more plaintiffs than one , the p articulars of each plaintiff must be stated
not disclosing a caus e of action . [H.D. Vashishta v. Glaxo Labora tories {I)
and nu mbered like 1, 2, 3. All concerned persons are made party to the
suit and , t h er efor e, full d escription which includes name father 's name Ltd., AIR 1979 SC 134.)
age of the person and complete postal address should be' given . ' Cause of action means a bundle of essential facts wh ich it is
necessary fo.r the plaintiff to prove before he can succeed in the case .
(c) Particulars regarding defendant.-Defendant is one of the
[Sidramappa v. Rajashetty, AIR 1970 SC 1059.) A cause of action me an s
impertant parties. Defendant indicates the person against whom suit has
every fact which it is essential to be established by the plaintiff to support
been instituted . There m ay be one or more than one defendant. Therefore,
his claims.
full desc r iption viz. name, fa ther's name , age and complete postal address
shou ld be m ent ioned. If ther e are more defendants than one the Order II, Rule 1, C.P.C. lays down that "Every suit shall, as far as
particulars of each defend ant must be stated and numbered like 1,' 2, 3. practicable, be framed so as to afford ground for final decision upon the
The n ame of the defendant should be correctly ascertained before subjects in dispute and to prevent further litigation concerning them ." The
mentioning in th e plaint. If the correct name and address of the defendant meaning of this rule is obvious that all matters in dispute should be
is not mentioned , there will be difficultly in serving the summons ·and disposed of in the same suit. The intention behind it is to pr event further
the plaintiff may have to suffer. As such it is very essential to ascertain litigation.
and mention th e correct particulars of the defendant. Order II, Rule 2, C.P.C. provides that every suit shall include the
(d) Minor or person of unsound mind.-Every suit by ·a minor whole of the claim which the plaintiff is entitled to make in respect of
shall be instit ut ed in hi s name by a person who in such suit shall be the cause of action and where a plaintiff omits to sue in r espect of, or
called the next fri end or guardian of the minor. Similarly, if the plaintiff intentionally relinquishes , any portion of his claim , he shall not afterwards
is of unsound m ind , a stat ement to that effect shall be made. sue in respect of the portion so omitted or relinquished .
(e) C ause of action.- Th e pl aint must next contain in its body the The main obJective of the aforesaid provision is that t h r. whole ca use
facts constituting t h e cause of action and when it arose. of action must be determined in a single suit and all the reliefs arising
The facts con stituting the ca use of action should be given in out of a cause of action must be claimed .
chronological ord er in separat e paras duly number ed . The plaintiff must (0 Jurisdiction.-The plaint must conta in the fac ts showing tha t
specify hi s relation to t he cause of a cti on to show the genuinen ess of his the court has jurisdiction. It would not s uffi ce only t o m ention in the
claim . The m aterial facts be given in a concise form although the s a me plaint that the court has jurisdiction but t he r elevant pa r ticulars of facts
should be complete . The vague st at em en t of p a rticulars should be avoided . should be mentioned to show that the court h as j urisdictio n to try the
Th e facts s hould be n arrated mentio n ing . ther ein th e r elevant particulars case. S ections 15 to 20 of the Code of Civi l Procedure provide for
in regard t o ca use of action . Th e fac ts or p articul a rs should not be determining the court in which the su it shou ld be bro u~ht .
ORIGIN;,\L PETITION 99
98 PLEADING , DRAFTING AND CONVEYANCING

Order VII , Rule 10 (1) provides that subject to the provisions of Rule for the relief. [Multipurpose Cooperatiue Society v. S tate of B ihar, AIR
10-A, the plaint shall at any stage of the suit be returned to be presented 1984 Punj 128.] Thus equitable relief under Order Vil , Rule 7, C.P.C .
~ ~h e court in which the suit shou\d have been instituted. The rule clearly may be granted, ev_e n though ground o~ which relief is s~ught has not
indicates that the court may return to plaint at any stage of the suit for been stated as required by rule . (Kashz Chowdhary v. Mu1ataba Hasan ,
want of proper jurisdiction. 1981 BLJ 679.] .
This is an important function of the pleader to ensure that the court A plaintiff may also abandon a part of his claim or relief or give up
where he proposes to institute the suit has proper jurisdiction to try it. relief against particular defendant or defend~nt~, and the cou~t canno~
The facts must show that the court has jurisdiction-territorial, pecuniary compel him not to do so, [Thakur Ram Sahaz Sznha v. Mst. Bzmla De uz
and over the subject-matter of the suit. 1981 BLJ 236] but not 50 as to affect the court's pecuniary j urisdiction.
~i) '!'er_rit_or_ial Jurisdi~tion.-It is true that ordinarily the courts (Sudarshan Singh v. Mohan Lal , 1983 Srin. LJ 13 (J & K).]
exercise Junsd1ct10n only against persons who arc within their jurisdiction · It goes without saying that claiming relief by the plaintiff is the
and when they can reach with the arm of the law. It would not be proper essential ingredient of the plaint. In a civil suit different kinds of relief
for a court to assume jurisdiction when it cannot issue, process against may be available to a plaintiff. A plaintiff may choose to claim any one
the party _against_ whom it is seeking jurisdiction. But an exception is to or more of such reliefs . while granting the relief, the court must consider
be found m Section 20 (C ) of the Code of Civil Procedure. [Bhagwan v. the whole plaint and the substance and not merely the form of the plaint .
Ra;aram , AIR 1951 Born 125 (FB).] A Court in India cannot disclaim (h) Set-off or relinquished claim.-The plaintiff is required to
jurisdiction against a non-resident foreigner if the plaintiff's cause of mention the exact amount which has been set-off or relinquished out of
action , wholly or in part arose within its jurisdiction. [Gaekwar, Baroda his claim. According to Order II, Rule 2 (2) , C.P.C. where a plaintiff omits
State Railway v. Habibullah , AIR 1934 All 740; see also, R.K. Maheshwari to sue in respect of, or intentionally relinquishes any portion of his claim ,
v. Nagarjun Construction Company Ltd. , AJR 2007 (NOC) 1119 (M.P.)] . he shall not afterwards sue in respect of the portion so omitted or
A suit can be entertained at place where money was payable or goods relinquished.
were delivered, since a part of cause of action arose there . [Sreeniuasa A plaintiff may have many causes of action at a particular point of
Puluaris ing Industries v. Ja i Glass and Chemicals Put. Ltd, AIR 1985 Cal time but he is under no obligation to sue in respect of all of them. Order
74 .I II, Rule 2 (2) provides a check for splitting up of any claim arising out
(ii) Pecuniary Jurisdiction.-For determining pecuniary of any one cause of action. It is not permitted to sue part of that claim
jurisdiction of court in respect of plaint filed in suit, its market value of first and then in respect of the rest of the claim in a latter suit.
property as given in plaint should be the guiding factor and not the value Order II , Rule 2(3) relates to omission to sue for one of several
adopted for purpose of payment of court fee . [John Deuadoss v. Ruth reliefs. It lays down that "A person entitled to more than one relief in
Mosis , (1995 ) 2 Mad LJR 357)] There are different courts in India with respect of the same cause of action may sue for all or any of such reliefs ;
having different pecuniary limits of jurisdiction and in accordance with but if he omits, except with the leave of the court, to sue for all such
the provision of the Code of Civil Procedure a suit must be instituted in reliefs , he shall no,t afterwards sue for any relief so omitted."
the court of the lowest grade competant to try it. This rule is based on the principle that the defendant should not be
(g) Relief claimed.-Order VII , Rule 7 provides that "every plaint vexed twice for the same cause. To raise the plea on this count, the
shall state specificaJly the relief which the plaintiff claims either singly defendant must establish (i) that the latter suit and the former suit were
or in the alternative, and it shall not be necessary to ask for general or based on the sanie cause of action, (ii) that in regard to that cause of
other relief which may always be given as the court may think just to action the plaintiff was entitled to more than one relief, and (iii) that
the same extent as if it had been asked for. And the same rule shall being entitled to, more than one relief the plaintiff without leave obtained
apply to any relief claimed by the defendant in his written statement." from the court for his omission filed the second suit for relief so omitted .
As a general rule the plaintiff is not entitled to relief for which there As a matter of fact the rule requires every suit to include the whole
is no foundation in the plaint. In Vishram Arjun v. Irukulla Shankariah , of the claims which the plaintiff is entitled to make in respect of the
(AIR 1957 Andhra Pra . 784) it has. been laid down that in a case where cause of action on which the suit has been filed .
on the plead ings , issues and the evidence, the relief is clear then the (i) Valuation.-The valuation in a suit is required for the purpose
primary duty of court is to do justice and rules or procedure are meant of pecuniary jurisdiction. The valuation has nothing to do \vith the cause
to a dvance the cause of justice and not to impede it. Thus, this is an of action . A suit has to be valued for purposes of pecuinary jurisdic~ion
cxeption _to the aforesaid general rule. Under the rules, the court can not according to the special rules of court fees , but according to the
gra nt rcl_ief on the facts ~roved in the case. A plaintiff ought to be given market value of the subject-matter of the suit. [Kalu Bhiwanji _v. Bisram
i;u ch re lief as he 1s entitled to get on the facts established upon the Mowaji, ILR 1 Born 543 .]
evid ence m the cas e even if the plaint does not contain a specific prayer The plaintiff m 1st distinctly and separately give in his plaint the
1

Ill
PLEADING , DRAFTING AND CONVEYANCING
ORIGINAL PETITION 101
vo luulion of his claim for the pur poses of court fees and of jurisdiction
thoug h bot h may be stat ed in one paragraph . Valuation of the suit The objection regarding the under-valuation or t he over-valuation
determines the pecuniary juris diction of the court. must be taken ~t the earliest opportunity. I t is clear policy of law that
In suits for which a fixe d court-fee is payable e.g . in suit for when any question of jurisdiction is raised, it should be raised in the
declaration without a consequenti al r elief, no value for the purposes of court of the first instance nt the earl.iest stage and should be given effect
court-fees need be given, bu t it may be mentioned and written that a to by ~e _Appellate Court only when there has been prejudi ce caused by
lixecl court-fee has been paid on the plaint. According to Section 17, the trial 10 the. fi~t court. Where no objection is taken in the court
Cou rt-Fees Act , wh ere a cl a im embraces several distinct causes of action, concerned, no o_bJection can be taken in court above it. (Raghauachariar
as a suit on several bon ds , the v aluation of claim in respect of each such v. Raghauachanar, 20 MW 726.) If the plaintiff on being asked by the
cause of action should be separat ely given, as court-fee is separate)y court to make up the correct valuation, if the plaintiff does not do so
payable on each. Bu t where the sa me cause of action gives rise to several within the time given, it is open to the court to reject the plaint. [Limbaji
clai ms or reliefs, t h e valu ation of t he s u it is the aggregate of the v. Ahmed Bin , AIR 1956 Hyd 49.J
valuations of all the claims or reliefs .
Valuation of a cl aim for the purpose of jurisdiction is required so ns
Plaintiff's valuation
to ascertai n wh ether the suit is within the pecuniary jurisdiction of the Cla use (iv) of Section 7 of the Court Fees Act lays down a s foll ows :
court, and a lso further, for determining the forum of appeal. "In auit&-
Order VII , Rule 1 (i) requires th at the plaint must contain n (a ) for movable property of no market-value-for movable
statemen t of the value of the subj ect-matter of the suit for the purposes property where the subject-matter has no marke t-value as for
of jurisdiction and of court-fees. The two valuations are completely instance, in the case of documents relating to titl e ; '
different in ch aracter, though in most cases they may be the same . The (b) to enforce a right to share in joint-fam ily property-to
valuation for the pu r poses of the court-fees is required in those cases only enforce the right to share in any property on the ground that
in which cou r t-fee is charged under the Court-Fees Act, on the valuation it is joint-family property;
i.e . ad val orem e .g. in s uits for r ecovery of money, property etc .
. {c) for a declaratory decree and consequ e nti a l rel ie f-to
U n der O r der VII , Rul e 11 , C.P.C. there are provisions for rejection obtam a declaratoty decre e or order, where consequential rel ief
of plaint. Cla use (b) of the a bove rule cle arly lays down that where the is prayed;
rel ief clai m ed is under-valu ed and the plaintiff, on being required by the
(d) for an injunction-to obtain an ·injuncton ;
court to correct the valu ation w ithin a tim e t o be fixed by the court, fails
to do so , the plaint shall be r ej ected. Similarly, according to clause (c) of (e) for easements-for a right to some ben e fit (not he rei n
otherwise provided for) to arise out of land ; and
the above rul e, where the r elief claim ed is properly valued but the plaint
is written upon pa per insuffic iently sta mped , and the plaintiff, on being . (f) for a_ccount-for accounts according to th e a mount a t
required by the court to supply the requisite stamp-paper within a time which the rehef sought is valued in t he plaint or memorandum
of appeal.
to be fixed by th e Court, fails to do so , the plaint shall be rejected .
The provisions of S ection 4 of the Court-Fees Act are mandatory in In all such ~uits the plaintiff shall state the amount a t which
their character and prohibit a court from filing, recording or receiving he values the rehef sought."
improperly st amped document mentioned in the First and Second h . T~e ~o~-Fees Act, being a fiscal enactment, has nothin g to do with
Schedules to the Act . But the provisions of Order VII, Rule 11 and Section t f e J~s~iction of a court, but it simply lays down certain rules for val ue
0
149 of t h e Code of Civil Procedure, 1908 are very pertinent in this sm or P~ps~s of revenue and obviously such valuation cannot be
con nection a n d they must be construed and interpreted alongwith Sections ac~eptedf as a c:1teno!l of a T?atter of fact, such as the actual a mou n t of
4 and 28 of t he Court Fees Act and Section 11 of the Suits Valuation va ue O a claim, upon which the jurisdiction of the court d epen ds
Act where t h e wh ole or any part of any fee prescribed for any document [Rupcha nd Khan Chand v. Balwant Naray an , ILR 11 Born 591.J The Cou rt
by the law fo r t h e time being in force relating to the court-fees . has not Fee~ Act should not be_ resorted to for the purposes of valuation of the
been paid, the court m ay, in its discretion at any stage allow th~ person i;;;b~ect matter of the suit for jurisdictional purposes. [Palam m al v. Rathna
by whom such fee is p aya ble, to pay the whole or part as the case may u a iar, AIR 1949 Ma~ 448 .) An exception, however, mus t be m ade when
be of such court-fee and on such payment, the document in respect of a case fal~s under Section 8 of the Suits Valuation Act, for in such a
which such fee is payable shall h ave the same force and effect . as if such case, by virtue of the section, the value for purposes of jurisd iction is to
fee had been paid in t h e fi r st instance . In case of default of payment of follow the value for purposes of court-fee. [Raj abola Desa i v. Radhica
court-fee , the su it is t o be r ejected in toto . [Chandrakant Lotlikar v. Charan, 79 _Ind Cas 982.] As a matter of fact, the plainti ff is n ot entitled
Vam cin M a hadeo Lotlihar, AIR 1989 Born 17 .] 4> put a hi~her valu~ti~n ~n the plaint for purposes of j urisdiction and
thereby obtam an adJudication from a superior cou rt and to put a lower
value for the purposes of court-fee . [K. Oj ha v. Jagrani Kaur, ILR 46 All
\ 03
ORIGINAL PETITION
a nd t o ..... ....... .of .. ... .... ...... . .
02 PLEAD ING , DRAFTING AND CONVEYANCING . ted by the petitioner on .....h•·· · .d arbitrat ors appointed
of .. ..... of.. ........ appom
h spondent on ....... .. ... ... . and t th
e saip r ovisions of t h e sa1. d
119.I The valuation of a suit for purposes of court-fees and valuation of appointed by t e re an arbitrator under e
he subject-mutter of th e s uit for purposes of determining the jurisdiction ..... ......... of. .. ...... .. .... .as
,f the court are two different things . Where there is any conflict between arbitration. . rs entered on the reference on .. ............... .. ..
,ection 7 of the Court F ees Act and Section 8 of the Suits Valuation Act, 2 That the arb1trato h ·ng arisen on .............. between
he right constructi on of the latter section is that the valuation for the . differences of opinion aV1 by them to the arbitration
,urposes of jurisd iction should in the cases mentioned therein, be the 3. That. on the matter was referredproceedings under r efe r ence
the said arbitrators , ho commenced
iamc as t h e va lu ati on for the court-fee . [Sailendra v. Ramesh Chandra , of the arbitrator on ........ .... w
l4 C LJ 94 .I . t a ken no p r oceedings and
In Sujir Kcshey Naick v. Suj ir Ganesh Nayak , [(1992) 1 SCC 731 : on .............. . b·t ator has since............ • d althou gh
4 . That the said ar i r e nor has made his awar
\IR 1992 SC 1526] the Supreme Court has laid down as follows :
·is not proceeding with the ;e;~;~;che entered on the reference .
\ 1 ) Wh ere the question of court-fee is linked with jurisdiction
about 4 months have passe Or
t he defe ndant has a right to raise objection and the court (with . . but has taken
limited jurisdiction) shoulc decide a preliminary issue; the petit10ner

l
That the arbitrator re~us;~ to et~f:ner submitted to him by t~e
( 2 ) but in those cases where the suit is filed in court of
evidence in the absence o t o~ rent from the respondent at a ra ~
unl imited jurisdiction the valuation as disclosed by the plaintiff on
payment of court-fee on itself claimed in the plaint or memorandum
shou Id be tak en as correct; I
~~s:::~::e~~h~:\~t::an~a~~ rden~ a~!eh::bf
about Rs ... .. .. .......from the respon en .
~::~:r
i~o;i~~d o~ ti;ci~l
(3 ) this does not preclude the Court even in suits filed in courts · d u ct •
of unlimited jurisdiction from examining the valuation on averments miscon . h . h the court shoul d remove him under
5 • Th at it is a fit case m w ic ·1· ti. n Act 1996 and order that
on plaint. . t· and Conci ia o • t th
Section 12 of the Arb1tra 10n 11 to have effect with respect o e
For the purposes of valuing a suit, it is the plaint alone that has the arbitration agreement sha cease
,0 be cons idered . The provision of the Court Fees Act, being a fiscal Sd-
difference referred .
mactment should be so construed as not to furnish a chance of escape Sd-
md rneans of evasion . [Nanlie Lal v. Joginder Chandra, AIR 1924 Cal Place... ........ ... .. ......... ... Advocate Petitioner
l8 1.] But if a party can successfully evade the court-fee, he must. It is Dated............ .... ........... . . the contents stated in paras no. 1-5
1 common act to attempt an evasion of the Court Fees Act by casting
Verification.-It is verified that . N thin" has been concealed
knowledge and behef. o "
he prayers in the plaint into a declaratory shape. Where the evasion is are correct to my
mccessful , it cannot be touched but the device does not merit therein . Sd-
mcouragement or favour. IDeokali Koer v. Kedar Nath, ILR 39 Cal 704.) Place ......... .. ............... . . Petitioner
!t is the plaintiff and plaintiff only who can put the valuation of his suit, Date ............ ..... .. ......... .
>r plaint . The court has no right to interfere in the valuation of the plaint FORM No. 2
mless it is illegal , palpably absurd , manifestly illogical or arithmetically di and Wards Act, 1890
vro ng . The parties may avail themselves of any camouflage that the law
Petition under Guar ans AT... K.AITHAL ........ .
IN THE COURT OF.......... .... .. JUDGE
dl ows or does not forbid . IP. Uruma v. Mohideen, 110 Ind Cas 752 .] Guardianship Case No ............ of... .. .. ........ .
MODEL FORM OF PETITIONS
FORM No. 1 In the matter of A , a minor Petitioner
C (add description and residence)
· Petition under Section 12 versus
IN THE COURT OF......... ... AT..NOOH ..... ..... ...
(add description and residence) Petitioner (1) E (add description and residence) Respondents
vers us (2) G ( a dd description and
.
residence) .
10 f the Guardians
and Wards Act ,
(a dd descript ion and residence) Respondent Petition under Section o d" of the said minor
1890, for appointment of a guar ian
Pe ti tion und e r Section 12 of the Arbitration and Conciliation
Act , 199H for removal of Arbitrator. The petitioner states as under . : n of p who was .. ...... ... (add
The petitioner states 1 That A abovementioned . i~ the so
· • · ) d was residing at ... .. ... ... ..
description an
I . That under a n abrrecment of reference to arbitration, date<l ........ the
2. That p died on ........ .. ... at.. ... .... .. ..... .
,art.ies h ere to refer red thei r di spute aris ing out of.. ... .. .... to the arbitration

1
I
I PLEADING , DRAFTING AND CONVEYANCING

3 . That A is a m inor, having been born on .... .. ..... He is now


approximately............... years of age .
of the minor.
13. It is therefore prayed that-
ORIGINAL PETiTION 105

4 . That the said A is residing with .... ............. .who is related to him (i) the said L or some other fit and proper pe rson may be
as ............... . appointed the guardian of the person and property of the
5 . That the said A is entitled in his own right to several assets said minor ;
and properties , given below- (ii) that security to be given by the appointed guardian may be
(i) ... ... .. ........... . fixed at.. .. .... .. and Shri .. .......... .. . and Shri .......... may be
(ii) accepted as sureties of the said L ;
(iii) .................... . (iii) that a sum of Rs .... ........ .. a month may be fixed for the
6. That the said A is governed by Hindu Law. maintenance and education of the minor;
7 . That the other relations of the said minor now living are : (iv) that a sum of Rs .. .. ... ......... a month may be allowed to the
said guardian as hfa remuneration in respect of the collection
(i) ............... (add address, description and relationships)
of the rents of the immovable properties of the minor ;
(ii) .... .. .. .... .. (add address , description and relationships)
(v) that the said guardian may be at liberty out of the income of
(iii) .. .... .. .. .(add address, description and relationships) the said minor to expend the sum of Rs ................. in h is
8 . That no guardian of the person or property of the said minor thread-wearing ceremony;
has been appointed either by Will of the said P or by court. (vi) that the said guardian may be at liberty to invest any
Or balance of the net income of the minor, after payment of the
That Shri ............... of.. ..........was appointed by Will of P as said sums and the costs of the application in ........ .. ... ;
guardian of the person and property of the said minor, but the (vii) that the said guardian may be at liberty to raise the sum ol
said Shri ........ .. died on .......... at .. .... .. .. .. . Rs ............. by a · mortgage of items (i) and (ii) of the said
Or properties mentioned in para 5 above a t the rate ol
That Shri .. ...... .... .. .. of.. .... ...... elder brother of the said minor Rs ............... per cent per annum as interest and to apply thE
appointed Shri .............. ... of.. .................. as the guardian of the said said sum for payment of the mortgage· mentioned in para 1C
minor, but the said appointment is invalid and of no effect under above;
the law to which the minor is subject. (viii) that the costs of this petition may be directed to be paid (0 1
9 . That L the person proposed as guardian, is a land-owner. He is deducted) out of the income of the said minor;
the nearest male relation of the said minor, is married and and any such other direction as the court may deem fit be giver
has .... .... .... .. children and resides with his family at .... .. ...... .. He is in this behalf.
in good circumstances, having an income of about Rs ................ a Place.... ... .. ... .. ..... ......... Sd- Sd-
year, and of good character and reputation and of good business Dated ............... ....... ..... Advocate Petit io ner
habits and a proper person to be appointed guardian of the
person and property of the said minor.
Verification.-It is verified that the contents stated in paras n o
1-12 are correct to my knowledge and belief. Nothing has bee n concealec
10 . That items Nos . (i) and (ii) of para 5 above are in bad state of therein .
repair, and unless they are at once repaired , will seriously
Place............. ........... .... S<l -
deteriorate in value , and it is in the interest of the minor th~t
a sum of about Rs ................. should at once be expended for this Date.. ... .. .... .. .. .. .... Petitione r
purpose. FORM No . 3
Or IN THE COURT OF DISTRICT JUDGE AT FARIDABAD
The mortgagees of items (i) and (ii) of para 5 above threaten In the matter of A minor
to take proceedings to realise their security; and in such case Original Petition No ............. of... ......... ..
it is apprehended that the property will not realise its full value. Petition of C (add description and residence) under Section 39
11 . That the present environment in which the said minor is being of the Guardians and Wards Act, 1890, for removal of E
brought up is not conducive to his proper education and guardian of the said Minor
development of good character. The petitioner states as under :
12. That it is in the interest of the minor that a fit and proper 1. That the minor has attained the age of ...... .years . Shri ....... haci
person be appointed as guardian of the person and properties