CS Professional - Drafting, Pleadings & Appearances common mistakes
CS Professional - Drafting, Pleadings & Appearances · Understand the traps and how to avoid them.
Drafting a sale deed (or lease, mortgage, gift) as a single flowing narrative without the conventional recitals-and-operating-clauses skeleton, omitting the 'WHEREAS' recitals that establish title and the testatum/operative words that actually transfer the property.
Candidates revise conveyancing by memorising clause content but never internalise the structural grammar of a deed - recitals, testatum, habendum, covenants, testimonium, attestation. Under time pressure they write a summary of the transaction rather than an instrument that would operate in law, and examiners mark structure and operative words separately from substance.
What to do instead
Before writing, lay down the skeleton as headings in the answer: parties/description, recitals (title chain, agreement to sell), operative/testatum clause ('doth hereby grant, convey, transfer, sell and assure'), habendum, covenants (title, quiet enjoyment, further assurance), exceptions/reservations, testimonium and execution/attestation. Then fill each heading. Practise drafting one full deed per week from a bare fact pattern using this fixed template until the skeleton is automatic.
Describing the property or the parties in vague or ambiguous terms - 'the said property', 'the vendor's flat at Mumbai', a party described only by name with no parentage/address/description, or a schedule of property without boundaries, area, and municipal/registration particulars.
Candidates focus on the legal clauses and treat identification as boilerplate. They forget that a deed must identify the subject matter with certainty so that the instrument is enforceable and registrable, and that a court reading only the schedule must be able to locate the property.
What to do instead
Always draft a full schedule of property: exact municipal number, floor, built-up/super built-up area, boundaries on all four sides (north/south/east/west with adjoining owners or roads), and any rights of way or easements. Describe each party with name, age, parentage/spouse, occupation, and full address, and define them once ('the VENDOR') then use the defined term consistently. Check the schedule against the recitals for internal consistency before finishing.
Drafting company documents without checking the Companies Act 2013 and the articles: a board resolution that purports to do something requiring shareholder approval, a notice of general meeting without the required explanatory statement, or a resolution described as 'special' when the section requires only ordinary (or vice versa).
Candidates treat company drafting as generic business writing and rely on memory of the section numbers rather than the procedural requirements. The distinction between board and shareholder competence, and between ordinary, special and unanimous-consent routes, is examined precisely because it is where real drafting fails.
What to do instead
For every company document, run a three-step checklist: (1) which organ has power - Board, members, or both; (2) which section and article authorise it; (3) what form is required - ordinary resolution, special resolution (three times the votes / specific majority), or consent by all. Then draft the notice with the explanatory statement under the relevant section, the resolution in the exact statutory wording, and the minutes recording the quorum, discussion and vote. Build a one-page table of the sections you most often misremember and revise it before the exam.
Writing a legal notice or statutory notice that is argumentative, mixes the cause of action with the demand, omits the specific relief or time period demanded, and fails to state the facts that give rise to the claim with dates and amounts.
Candidates write notices as if they were letters of complaint, because that is the register they read in practice. A good notice is a structured pre-litigation document: parties, facts, breach, legal basis, demand, time to comply, and consequence of non-compliance. Without that structure it is neither effective as a notice nor a good answer.
What to do instead
Use a fixed notice template: sender/recipient particulars; the agreement or relationship and its date; the specific breach with dates and amounts; the legal basis (section or clause); the demand stated in the imperative; the time allowed to comply; the consequence of failure (suit, termination, or the statutory consequence); and a statement that the notice is issued without prejudice to rights. Keep the tone factual and firm, not abusive. Practise converting a fact pattern into a notice in under 20 minutes.
Drafting a plaint that pleads evidence rather than material facts, or conversely omits the jurisdictional facts, cause of action, and the relief claimed - and then failing to verify the pleading or to state the valuation and court fee.
Candidates confuse 'pleadings' with 'narration'. Order VI of the Code of Civil Procedure requires material facts, not the evidence by which they are proved; and a plaint without jurisdiction, cause of action, valuation and verification is liable to be returned or rejected. Under exam pressure, the relief paragraph is often the first casualty.
What to do instead
Draft the plaint to the Order VII checklist: parties and their description, jurisdiction of the court, limitation and the facts showing it, the cause of action with its date, the material facts in numbered paragraphs (one fact per paragraph), the relief claimed with its valuation, the court fee, and the verification signed by the plaintiff. Keep evidence out - no witness names, no documents quoted at length; refer to documents instead. End with the prayer clause drafted precisely, including any interim relief sought.
Drafting a criminal complaint or application without the statutory ingredients: a complaint under the relevant provision that fails to state the offence, the date and place of the act, the accused's identity, and the facts constituting the offence, or an application that ignores the limitation period and the requirement of sanction.
Candidates revise criminal procedure as a list of sections but do not practise converting a fact pattern into the statutory elements. The result is a document that reads plausibly but would not be entertained because an essential ingredient or procedural precondition is missing.
What to do instead
For every criminal drafting answer, first write out the ingredients of the offence or the conditions for the application as a checklist, then draft to tick each one. Include: the accused's particulars, the date, time and place, the specific act and the provision it offends, the injury or loss, the complainant's locus, the limitation and any condonation sought, and the sanction where required. Cross-check the final draft against the checklist before closing the answer.
Drafting a commercial contract without defining the operative terms, without a clear payment/delivery/termination mechanism, and without dispute resolution, governing law and notice clauses - or with an arbitration clause that is unenforceable because it is vague or optional.
Candidates write contracts as a list of obligations in plain English and stop there. The clauses that make a contract work in practice - definitions, conditions precedent, representations and warranties, indemnity, termination for cause, force majeure, dispute resolution, notices, entire agreement, severability - are the ones most often tested and most often missing.
What to do instead
Draft to a contract checklist: parties and recitals; definitions; scope and obligations; consideration and payment terms; representations and warranties; indemnity and limitation of liability; term and termination; force majeure; confidentiality; intellectual property; dispute resolution and governing law; notices; assignment; entire agreement; severability; counterparts and execution. For an arbitration clause, specify the seat, the number of arbitrators, the appointment mechanism and the rules adopted, and make the reference mandatory.
Treating the appearance section as general knowledge and failing to state, in a question on appearance before a tribunal or quasi-judicial forum, the specific procedural steps - the authority under which the forum acts, the form of appearance (vakalatnama, authorisation, appearance in person), the limitation on who may appear, and the remedies available from that forum.
Candidates prepare appearances by reading about advocacy in the abstract and never connect the forum's constituting statute to the mode of appearance and the limits on representation. The examiner is testing whether you know that a tribunal, a consumer commission, and a criminal court each have different rules about who may appear and how.
What to do instead
For each forum, memorise a small fact card: constituting statute, who may appear (advocate, authorised representative, in person), the document that authorises appearance, the limitation period, the appeal route, and any bar on legal representation. Then practise a short answer that names the forum, the authority, the mode of appearance and the procedural consequence of default. Do not write a general essay on advocacy.
Ignoring professional ethics as a substantive subject: answering questions on the advocate's duties, conflict of interest, advertising, fees, or the bar on appearing against a former client with vague moral language instead of the specific rule and its consequence.
Candidates assume ethics questions are 'common sense' and do not revise the Advocates Act and the professional conduct rules. The examiner is looking for the specific duty, the rule that embodies it, and the disciplinary consequence of breach - not a general statement that an advocate must be honest.
What to do instead
Learn the ethics content as rules with numbers: the duties to the court, the client, the opponent and the profession; the specific prohibitions (advertising, touting, fee-sharing with non-advocates, appearing where conflicted); the disciplinary machinery and the consequences of misconduct. For each answer, state the duty, the rule, the application to the facts, and the consequence. Practise with short hypotheticals rather than essays.
Spending the answer on facts and law and omitting the drafting itself - giving a description of what the document should contain instead of writing the document, or running out of time and leaving the operative clauses unwritten.
Candidates read the question, recognise the legal issue, and write a legal analysis because that is the skill rewarded in other law papers. This paper rewards the ability to produce a usable instrument. Time management compounds it: candidates over-write the preamble and never reach the operative part.
What to do instead
Read the question and immediately identify the deliverable ('draft a notice', 'draft the plaint', 'draft the resolution'). Allocate time so that at least half the allotted time is spent writing the document itself, and write the operative clauses first if time is short, then the recitals. Use headings and numbered clauses so the examiner can see the instrument's structure. In the last five minutes, check that the document has parties, subject matter, operative words, execution and any required statutory particulars.