LIVE Online Course on NDPS by Riva Pocha and Adv. Taraq Sayed. Starting from 24th May. Register Now!!
LAW Courses

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


The straight answer to this is – to insist the presiding Judge to record “finding of facts”. Every decision of court, as far as possible, must be based on record of findings of facts. Finding based decisions

Finding of fact: The “finding of fact” may be a process wherein the presiding Judge is expected to record answer to the issues which naturally arises in the nature of proceeding before it and the reliefs claimed for. It is a process wherein the presiding Judge examine (a) the facts alleged, (b) apply the applicable laws to the facts of the case, (c) appreciate the materials and the evidences which are placed before him in support of the facts alleged, and (d) records his finding as to the existence or the non existence of the facts alleged. The said presiding Judge is also expected to record reasons for in support of his such findings of fact.

Findings for “which facts”: The question may arise as “which set of facts” for which findings are to be recorded in a given proceeding. The facts for which findings are to be recorded, would depend upon (a) the issues which naturally arises in the nature of Application / Petition which is filed and (b) the Principal / Temporary Reliefs which are claimed for in the Suit or any other proceeding.

Like for example, in winding up cases, where the Petitioner satisfies the Court about the legitimacy of the debt, the bonafides of the contentions raised by the Respondent Company are under consideration, and the key issues which arises before the Court are – (a) Whether the defense raised by the company is in good faith and one of substance; (b) Whether the defense raised is legally sustainable; and (c) Whether the company adduces prima facie evidence in support of the defense which is raised. And therefore the Court, based on findings of fact which it will record on above issues, would proceed to allow or reject the Winding up petition. [AIR 1971 SC 2600]

Similarly, in Application for obtaining Anticipatory Bail, the main issues which arise before the Court are – 

The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

The possibility of the applicant to flee from justice;

The possibility of the accused's likelihood to repeat similar or the other offences.

Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

And therefore the Court, based on findings of fact which it will record on above issues, would proceed to allow or reject the Anticipatory Bail. [AIR 2011 SC 312]

What is a Material fact: The finding of facts must be in respect of material facts. The Materiality of facts would always mean those “facts which are material to the Relief claimed or prayed for. Every Relief which is being claimed presupposes the existence or the non existence of certain facts, which are required to be pleaded and proved.


How to “arrive” at Finding of a Fact: In so far as Plaintiff / Petitioners / Complainants are concerned, a fact which if proved (whether solely or in connection with other facts), the inference would be drawn – (a) of the existence of the (ingredient) of the right or the whole right itself, which is asserted; or (b) of the existence of the (ingredient) of the liability or the whole liability itself, which is attributed against. In so far as adversary is concerned, a fact, which if proved (whether solely or in connection with other facts), the inference would be drawn – (a) of the non-existence of the (ingredient) of the right or the whole right itself, which is asserted; or (b) of the non-existence of the (ingredient) of the liability or the whole liability itself, which is attributed against. [Definition of “Facts in issue” contained in Evidence Act, 1872]


What constitute Material facts: the answer lies in Cause of action: The first and the principal attribute of any litigation is existence of cause of action. Every litigation presupposes the accrual of “cause of action”, that is to say, reason for initiating legal action in the Court of law / Tribunal, etc. Accrual of cause of action implies and presupposes infringement of litigant’s some statutory right / fundamental right / equitable right / contractual right / or any other right recognized under the statutes or customs. For the right to move the court of law, the right sought to be enforced, should have already come into existence, and there should be an infringement of it, or at least a serious and imminent threat exist of its infringement.

Broadly speaking, Cause of action has two dimensions, one, the accrual of cause of action, i.e. that moment of time when the rights of the Person is infringed and such infringement of right entitles him to move the Court of law, although he may choose not to move the Court immediately; like for example, a Persons sells goods and raise Invoice, dated 01.01.2016, and where the terms of payment agreed was 7 days from the date of Invoice; and therefore, if the payment is not made by 08.01.2014 (7 whole days would be calculated from 02.01.2014 to 08.01.2014), the Seller will have accrual of “Cause of action” on 09.01.2014; 

And second, cause of action means, the bundle of facts which are necessary (sufficient) to prove by the Party claiming certain reliefs from the court. From the second definition, it also follows that the Claimant is not obliged to prove every fact which is being “disputed” by the opposite party (adversary); and he is required to prove only those facts which are “necessary” / sufficient, in order to support his claim for the judgment in his favour.

In my brief exposure to province of litigation, I may have read around 2500 judgments of various High Courts and of Apex Court, and I have found bulk of the Orders, which were impugned, were suffering from either of the infirmities set out hereinbelow –

Findings ignoring vital evidence: Where a finding which is recorded without considering the vital relevant facts / evidences, placed on record, which is akin to frustration of principles of natural justice;

Misunderstanding as to nature of controversy: Where there is complete misreading / misunderstanding as to material proposition of facts advanced;

Absence of Finding: Where the impugned Order was passed without recording a finding on material fact, which has direct nexus with the controversy at hand, which is akin to frustration of principles of natural justice;

Finding based on consideration of irrelevant facts / evidence: Where the impugned Order is based on a finding which is recorded whilst taking into consideration irrelevant facts / evidences;

Impugned Order contrary to findings: Where the impugned Order is contrary to findings recorded by the Court;

Finding based on no evidence: Where there is no evidence on record to support the finding which is recorded in the impugned Order;

Findings without reasons: Where the impugned Order is based on a finding which is recorded without assigning any appreciable / cogent reason;

Findings on irrelevant reasons: Where the reasons employed to arrive at a finding, in the impugned Order are vague / irrelevant / irrational / unheard in law.

At this juncture, it is desirable to make useful reference to observations made by Apex Court in few cases before it, wherein the Apex Court inter alia, observed to say that proper findings have not been recorded.


(2010) 13 SCC 427 


20 The show cause notice dated 23.01.2008 was issued by the third respondent in exercise of this power.

37 The appellant gave a reply to the show cause notice but in the order of the third respondent by which registration certificate of the appellant was cancelled, no reference was made to the reply of the appellant, except saying that it is not satisfactory. The cancellation order is totally a non-speaking one. 

38 Therefore, the bias of the third respondent which was latent in the show cause notice became patent in the order of cancellation of the registration certificate. The cancellation order quotes the show cause notice and is a non-speaking one and is virtually no order in the eye of law. Since the same order is an appealable one it is incumbent on the third respondent to give adequate reasons.

40 On the requirement of disclosing reasons by a quasi- judicial authority in support of its order, this Court has recently delivered a judgment in the case of Kranti Associates Pvt. Ltd. & Anr. V/s. Sh. Masood Ahmed Khan & Others on 8th September 2010.

41 In M/s Kranti Associates (supra), this Court after considering various judgments formulated certain principles in para 51 of the judgment which are set out below

a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

b. A quasi-judicial authority must record reasons in support of its conclusions.

c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

g. Reasons facilitate the process of judicial review by superior Courts.

h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.

i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

j. Insistence on reason is a requirement for both judicial accountability and transparency.

k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.

m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).

n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya V/s. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".

o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".


AIR 2016 SC 948

26 Mere perusal of the afore-quoted order of the High Court would show that the High Court neither set out the facts of the case of the parties, nor dealt with any of the submissions urged, nor took note of the grounds raised by the appellant and nor made any attempt to appreciate the evidence in the light of the settled legal principles applicable to the issues arising in the case to find out as to whether the award of the Tribunal is legally sustainable or not and if so, how, and if not, why?


Apart from the infirmities in finding of facts, the Orders and judgments suffers from yet another serious irregularity. There appears to be no “order” in which the Order is made, that is to say, whilst reading the passages (sometimes very long) in the Orders, the readers get lost as what were the material facts of the case; what were the applicable laws; what were submissions and grounds for claiming certain reliefs; what was the “ratio decidendi” to reach the conclusion recorded, and so on.


And therefore, your written submission should become the order / judgment of the Court. A tabular written submission is suggested hereinafter.

Record of Findings
http://legaldraftsjalan.blogspot.in/2015/01/record-of-finding.html


Further, whenever any patent infirmity is observed in respect of any of the aforesaid finding of fact, in any Order of the court / tribunal, Recall of the said Order may be preferred before the same Court, instead of challenging the same before Appellate forum. 


Recall jurisdiction: 
http://commonlaw-sandeep.blogspot.in/2015/02/the-recall-jurisdiction-of-courts.html

Some Relevant Rulings:
http://judgmentshighcourtsapexcourt.blogspot.in/2015/05/adjudicatory-process.html


The readers may continue to read further – 

The other grounds, broadly, which are available to challenge any Order, are –

(A) Jurisdictional errors 

Want of jurisdiction: That the Court / Tribunal / Quasi judicial body / administrative authority passing the impugned Order had no jurisdiction to entertain the subject matter of the dispute; or that the Court / Tribunal / Quasi judicial body / administrative authority wrongly assumed the jurisdiction; or that the Court / Tribunal / Quasi judicial body / administrative authority usurped the jurisdiction of _____ Court / Tribunal / Quasi judicial body / administrative authority; or

Mistake of jurisdiction: That the condition precedents, for the exercise of jurisdiction, were not complied with; or

Excess of jurisdiction: That the impugned Order contains such directions / reliefs which the Court / Tribunal / Quasi judicial body / Administrative authority whilst passing it, were incompetent to pass / grant; 

Failure of jurisdiction: That the Court / Tribunal / Quasi judicial body / administrative authority did not exercised the powers vested in it.

The want of jurisdiction may arise from the nature of the subject matter of the proceeding or from the absence of some preliminary proceedings or the court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances. When the jurisdiction of the courts depends upon the existence of some collateral fact, it is well settled that the court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess. Basappa versus Nagappa [SC 1954].


(B) Procedural lapses / Breach of principles of natural justice:

Impugned Order in breach of procedure: That the impugned Order was passed without following the procedure / or in breach of the procedure established under the law.

Impugned Order without hearing: That the impugned Order was passed without affording opportunity of hearing, or opportunity of hearing contemplated under the law.


(C) Illegality

Breach of provision of law: That the impugned Order was passed in disregard of substantive and specific provision of law, which has immediate bearing on the controversy at hand;

Misreading of provision of law / Misreading of ratio of judgments of HC / SC: That there is complete misreading / misunderstanding of the express mandate of law / law declared in HC / SC Ruling;

Ignoring the very relevant judgments of HC / SC cited: That, judgments of the Apex Court / High Court, referred and relied upon, were not considered whilst recording findings, and it amounts to contravention of the fundamental policy of Indian law, as observed by Apex Court in the cases of [Renusagar Power Co. Ltd. V/s. General Electronic Co., 1994; Associate Builders Versus Delhi Development Authority 2015 ].


(D) Evidentiary misgivings: 

Misplaced burden of proof: That the issues were not correctly framed due to which / or otherwise, the burden of proof in respect of proving of a fact was placed upon the wrong party;

False evidence / Falsity / incorrectness of facts / false certificate / forged document: That the finding of a material fact is recorded on the strength of False evidence / Falsity of facts / incorrect facts / false certificate / forged document;

Inadmissible evidence: That the finding of a material fact is recorded on the strength of inadmissible evidence, like evidence of irrelevant facts or privileged communication, or of the unregistered documents of immovable property, etc.

Documents not proved: That the finding of a material fact is recorded on the strength of documents which have not been duly proved, as required under the law, that is to say, either originals were not produced without any explanation; or the secondary evidence was not duly led to prove the document; or to say that execution of the document as required u/s 67 of the Evidence Act was not proved.

Breach of principle of exclusion of oral evidence: The finding of a material fact in the impugned Order is based on a oral evidence, in breach of express mandate of sections 91 and 92 of Evidence Act, 1872;

Findings based on hearsay evidence: That the findings to a material fact was recorded on the premise of a hearsay evidence, that is to say, the evidence of the witness does not satisfy the mandate of section 60 of Evidence Act, 1872;


(E) Fraud upon Courts / Tribunal / Administrative Authority

Where any party had played deception upon the Courts / Tribunal / Administrative Authority Court, wherein he had brazenly misled the Courts / Tribunal / Administrative Authority as to material facts of the case, by agitating incorrect / false facts or by suppressing material facts / documents; and obtained Order of the Courts / Tribunal / Administrative Authority.


(F) Infirmities in the impugned Order which are peculiar to Criminal proceedings only

That the allegations in the FIR / Complaint are speculative in nature, wanting in specific allegations of acts and omissions on the part of the Petitioner herein, who is accused an offence of ……..;

That the allegations made in the FIR / Complaint does not constitute the offence alleged of; 

That there are no grounds (No evidence, oral or documentary) to proceed against the Accused, which is the condition precedent u/s 204 of CrPC, 1973, for initiating criminal prosecution against the accused person. 


Attributes of any Order passed by any Court / Tribunal / Quasi judicial body

First of all, the Court / Tribunal / Quasi judicial authority, must have jurisdiction to entertain the nature of dispute presented to it. The constitution of the said Court / Tribunal / Quasi judicial authority must also be in accordance to law.

The second and equally foremost is the principle that in every determination whether by a court or other authority that affects the rights of a citizen or leads to any civil consequences, the court or authority concerned is bound to adopt what is in legal parlance called a "judicial approach" in the matter. 

Judicial approach ensures that the authority acts bona fide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration.

A Judgment/ Order must be a self contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court.

The process of reasoning by which Court came to a particular conclusion and decreed or dismissed the suit should clearly be reflected in the Judgment/Order.

The judgment / decision should be on the basis of evidence on record and in accordance with law. 

Equally important and indeed fundamental to the policy of Indian law is the celebrated principle of audi alteram partem, i.e. principle that a court and so also a quasi-judicial authority must, while determining the rights and obligations of parties before it, do so in accordance with the principles of natural justice, i.e. sufficient opportunity must be given to each of the party to deal with the allegations which are made against it.

Besides the celebrated audi alteram partem rule, one of the facets of the principles of natural justice is that the court/authority deciding the matter must apply its mind to the attendant facts and circumstances while taking a view one way or the other. Non-application of mind is a defect that is fatal to any adjudication. Application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the court or authority is taking. The requirement that an adjudicatory authority must apply its mind is, in that view, so deeply embedded in our jurisprudence that it can be described as a fundamental policy of Indian law.

Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning. Proper reasoning is an imperative necessity which should not be sacrificed for expediency. The statement of reasons not only makes the decision easier for the parties to understand and many a times such decisions would be accepted with respect. The requirement of providing reasons obliges the judge to respond to the parties' submissions and to specify the points that justify the decision and make it lawful and it enables the society to understand the functioning of the judicial system and it also enhances the faith and confidence of the people in the judicial system.

Judicial decision are perceived by the parties and by the society at large, as being the result of a correct and proper application of legal rules, proper evaluation of the evidence adduced and application of legal procedure. The parties should be convinced that their case has been properly considered and decided.

No less important is the principle now recognized as a salutary juristic fundamental in administrative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same, will not be sustained in a court of law. Perversity or irrationality of decisions is tested on the touchstone of Wednesbury principle. Decisions that fall short of the standards of reasonableness are open to challenge in a court of law often in writ jurisdiction of the superior courts but also in statutory processes wherever the same are available.

It is settled law that where a finding is based on no evidence, or where the Court / tribunal takes into account something irrelevant to the decision which it arrives at; or ignores vital evidence in arriving at its decision, such decision would necessarily be perverse. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.

A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."

Reasoned Orders are inescapable in the entire scheme of administration of Justice. And explained decisions breathe life into court order. Reasons disclose how the mind is applied to the subject matter and reveal a rational nexus between the facts considered and conclusions reached. Recording of reasons is also an assurance that the authority concerned has applied its mind to the facts on record. The reasons employed not only be intelligible but which will also deal with the substantial points which have been raised. The giving of satisfactory reasons is required by the ordinary man’s sense of justice. Reasoned decisions are vital for the purpose of showing that he is receiving justice. An unreasoned Order presupposes the non consideration of submissions on record made by the Party therein and the opportunity of affording due hearing would be rendered meaningless and empty formality and thus in essence occasion the breach of principles of natural justice.

Having said all this, and to say that reasons must be given for Orders, what we really expect from the court or authorities, by saying so. Let me try to search.

Reasons are appreciation of such facts and evidences which are on record, and from which the Courts are entitled to draw inferences and results.

Then, I may address what is appreciation of facts and evidences. 

Appreciation of facts and evidences is, drawing natural and logical inferences, drawing natural and logical results, which necessarily flow from those facts and evidences [the facts would mean those facts which are self evident or are admitted, or facts which are reasonably proved, disproved or not proved].

Appreciation of facts and evidence is an exercise wherein the existence of certain facts, provokes or persuades the decision maker to reach a certain conclusion.

And to put it further straight, Reasons are those statements, whereby the decision maker will tell you, why your submissions to claim certain reliefs, OR why your submissions to deny certain reliefs, are meritorious or if are meritless; or to say, the decision maker will tell you, why you are entitled to the reliefs or why you are not entitled to the reliefs, claimed or prayed for.

And whereas the decisions of the Courts / Tribunals are subject to Appeal / judicial review, the Appellate Court / Writ Court in judicial Review jurisdiction cannot exercise their powers of reviewing the impugned Order, unless they are duly informed of the consideration reflected in the impugned Order.

Having all said and done, the principles cherished hereinabove are flouted with impunity and sometimes with ignorance, to the serious prejudice of the litigants, and the advocates face the agony and annoyance of their Client.    


The Orders which are passed may be divided into four categories – 

Orders passed in Civil Suit proceedings; 
Orders passed in Criminal proceedings;
Orders passed by Special Courts and Tribunals;
Orders passed by Administrative authorities.

The Civil Courts are regulated by Civil Procedure Code, 1908; the Criminal Courts are regulated by Criminal Procedure Code, 1973, Special Courts and Tribunals are regulated by respective Statutes under which they are constituted; and the Administrative Orders are passed by Public officials under different Statutes / Laws.

The Orders which are passed have wide-ranging facets / dimensions, and the legal remedy to challenge any such Order, would depend upon – 
 

Whether the Impugned Order [Order under challenge] is passed by Civil Courts, Criminal Courts, Statutory Tribunals, Specially constituted Civil Courts, Specially constituted Criminal Courts, Revenue Courts; and

Whether the Impugned Order is Interim or Final.

It must be bear in mind that whilst exercising jurisdiction by Appellate Court / Tribunal or Authority, the concerned “Appellate” Court / Forum has defined and limited scope as –
 

- to entertain the grounds of challenge to the Order complained of; 

- to the extent of powers, the Court can exercise or to say, to what extent the Court may enter into the merits or the depth of the case; and 

- to what extent the Appellate Court / Tribunal / Authority grant the nature of reliefs.

The following proceedings may arise in a Civil Suit filed before City Civil Courts / District Courts / High Courts in the exercise of its Original Jurisdiction / 

After institution of Suit, the Plaintiff, with intent to secure some Interim reliefs pending the final disposal of Suit, may take out appropriate proceedings, may be in the form of Notice of Motion.

The trial Court whilst deciding this Application for Interim Relief may or may not grant the Interim Relief which were prayed for. 

The Plaintiff or the Defendant, as the case may be, may challenge the said Order by way of Appealable Orders (AO), contemplated u/s 104 of CPC, 1908. 

The AO may be preferred before the Court to which an appeal would lie from the decree in the suit, by following the procedure prescribed under O.43 of CPC, 1908, i.e. if Order is passed by Civil Judge Junior Division, AO may be preferred before Civil Judge Senior Division; if Order is passed by Civil Judge Senior Division, AO may be preferred before District Judge; if Order is passed by City Civil Court, the AO may be preferred before the concerned High Court.

Before preferring this AO, the aggrieved person, depending upon the facts of the case, may prefer Review or Recall of the Order, before the same Court who has passed the Interim Order. 

If any of the parties are further aggrieved with the Order passed in AO, and if the Order is passed by a High Court, and if intra Court Appeal is available by virtue of Clause XV of Letters Patent Act, 1861, the aggrieved may then prefer intra court Appeal (Before the same Court and before Two judges Bench);

If any party is further aggrieved, SLP before the Apex Court may be preferred.

Before invoking the Appellate jurisdiction of any Court, the aggrieved person, depending upon the facts of the case, may prefer Review or Recall of the Order, before the same Court who has passed the Order. 

At the institution of the Suit, there may be a challenge as to the maintainability of the Suit for want of jurisdiction, and for this Section 9A Application (In Maharashtra) or Application under O.14 R.2 of CPC, 1908; or Notice of Motion may be taken out under O.7 R.11(a)(b)(c)(d) of CPC, 1908, including on the grounds of limitation.

If the Order disallowing the said Application / Motion, was passed by City Civil Court, then Civil Revision Application (CRA) u/s 115 of CPC, 1908 would lie before concerned High Court; if Order is passed by Civil Judge Junior Division, said Order may be impugned before Civil Judge Senior Division; if Order is passed by Civil Judge Senior Division, said Order may be impugned before District Judge; 

If the Order allowing the said Application / Motion, was passed by Civil Judge Senior Division / Civil Judge Senior Division / City Civil Court, First Appeal u/s 96 r/w O.41 of CPC would lie before the concerned Court. 

If any of the parties are further aggrieved with the Order passed in CRA, may then prefer an SLP before the Apex Court.

Before invoking the Appellate jurisdiction of any Court, the aggrieved person, depending upon the facts of the case, may prefer Review or Recall of the Order, before the same Court who has passed the Order. 

The other Application which may be taken out by the Plaintiff, after filing of Written Statement by the Defendant, is Application under O.12 R.6, that is, Judgment on Admission. This Application may be taken out by way of Notice of Motion or by any other appropriate Application. 

If the Order disallowing the said Application / Motion, was passed by City Civil Court, then Civil Revision Application (CRA) u/s 115 of CPC, 1908 would lie before concerned High Court; if Order is passed by Civil Judge Junior Division, said Order may be impugned before Civil Judge Senior Division; if Order is passed by Civil Judge Senior Division, said Order may be impugned before District Judge; 

If the Order allowing the said Application / Motion, was passed by Civil Judge Senior Division / Civil Judge Senior Division / City Civil Court, First Appeal u/s 96 r/w O.41 of CPC would lie before the concerned Court. 

If any of the parties are further aggrieved with the Order passed in CRA, may then prefer an SLP before the Apex Court.

Before invoking the Appellate jurisdiction of any Court, the aggrieved person, depending upon the facts of the case, may prefer Review or Recall of the Order, before the same Court who has passed the Order

Amendment of Plaint or Written Statement is one of the most common things in Suit proceedings. By virtue of O.6 R.17 of CPC 1908, the parties to the proceedings, may by taking out appropriate proceedings, amend the pleadings of their case which is filed in the Court. The said O.6 R.17 also defines the scope of amendment which is permissible and the stage of the proceeding at which amendments is permissible. 

If the Order passed under this Application / Motion, was passed by City Civil Court / Civil Judge Junior Division / Civil Judge Senior Division, an Application under Article 227 of the Constitution of India before concerned High Court would lie;

If any of the parties are further aggrieved with the Order passed in Application under Article 227 of the Constitution of India, may then prefer an SLP before the Apex Court.

Before invoking the Appellate jurisdiction of any Court, the aggrieved person, depending upon the facts of the case, may prefer Review or Recall of the Order, before the same Court who has passed the Order.

Then, there could be a situation where despite Summons were duly served upon Defendants, the Defendant fails to appear, or after appearing, do not file their Written Statement (WS), within 30 days or 90 days, from the date of service of Summons, or any other further period as may be granted by the Court under O.8 R.10. In this situation the trial Court is empowered to pass Ex-parte decree under O.9 R.6; or judgment followed by decree under O.8 R.10, as the case may be.

If any Order is passed under O.9 R.6, the same may be set aside by Defendant by making Application before the same Court under O.9 R.13. If Order is passed under O.8 R.10 (failure to file WS), the Defendant may have to prefer a First Appeal u/s 96 of CPC, 1908.

If any of the parties are further aggrieved with the Order passed in Application under O.9 R.13, and if the Order was passed by Civil Judge Junior Division / Civil Judge Senior Division, AO stated hereinbefore, may be preferred before the District Judge; and then Civil Revision Application (CRA) u/s 115 of CPC, 1908 before concerned High Court may be preferred;

If any of the parties are further aggrieved with the Order passed in Application under O.9 R.13, and if the Order is passed by a High Court, and if intra Court Appeal is available by virtue of Clause XV of Letters Patent Act, 1861, the aggrieved may then prefer intra court Appeal (Before the same Court and before Two judges Bench);

If any of the parties are further aggrieved with the Order passed in CRA, or Order passed in Letters Patent Appeal, may then prefer an SLP before the Apex Court;

Before invoking the Appellate jurisdiction of any Court, the aggrieved person, depending upon the facts of the case, may prefer Review or Recall of the Order, before the same Court who has passed the Order.

Then there could be a dispute between the Plaintiff and Defendant as to correctness of Framing of Issues or addition or modification of Issues. The Issues framed by the Court, or refusing or granting to delete or modify issues, may be a subject matter of challenge, for which Motion may be taken out under O.14 R.5 of CPC, 1908. The remedies are the same as suggested hereinbefore in cases of Orders passed in Application under O.6 R.17.

Then, there could be a challenge as to admissibility or exhibiting of documentary evidence led by any of the parties during the course of trial. The remedies are the same as suggested hereinbefore in cases of Orders passed in Application under O.6 R.17.

Then there could be a situation where any of the Plaintiff or Defendant dies during the course of trial. In this situation, the heirs or any other Legal representatives of the deceased party has to be brought on record by the Plaintiffs by taking out appropriate proceedings, may be by Chamber Summons. It is the responsibility of the Plaintiff to adopt appropriate proceedings in these cases even if any of the Defendants dies, where the right to sue survives against the estate of the deceased. For this Application under O.22 of CPC, 1908, is required to be adopted, and the Application must be made within 90 days from the date of knowledge of the death of the party.

Then there could be a withdrawal or compromise between the parties to the Suit. For this Application under O.23 of CPC, 1908, is required to be adopted.

Then there could be a final disposal of the Suit on merits of the case, by passing a judgment, followed by a decree of the Court. This judgment may be challenged by way of First Appeal, as provided u/s 96 r/w O.41 of CPC, 1908, to the Court authorized to hear Appeals from the decisions of such Court.

Before invoking the Appellate jurisdiction of any Court, the aggrieved person, depending upon the facts of the case, may prefer Review or Recall of the Order, before the same Court who has passed the Order.

Any party aggrieved by the Order passed in First Appeal may prefer a Second Appeal u/s 100 r/w O.42 of CPC, 1908, which lie before the concerned High Court, but on the ground that the said second Appeal raises a substantial question of law, which may include the perversity in the finding of facts.

Any person aggrieved by an Order passed in Second Appeal or CRA, as the case may be, may prefer to invoke SLP jurisdiction of Apex Court.

In all the above cases, before invoking the Appellate jurisdiction of any Court, the aggrieved person, depending upon the facts of the case, may prefer Review or Recall of the Order, before the same Court who has passed the Order.


Orders passed by Criminal Courts

The Criminal proceedings are ordinarily set into motion by –
Registering Complaint before Police authorities u/s 154 of CrPC, 1973; 

Filing Private Criminal Complaint u/s 200 of CrPC, 1973 before competent Magistrates Court; 
Filing Application u/s 156(3) of CrPC, 1973, before competent Magistrates Court, for investigation of the crime and filing Chargesheet, if necessary.

The FIR so registered u/s 154 may be quashed by filing a Petition / Application u/s 482 before the concerned High Court, on the ground that (a) “acts” and “omission” attributed towards the accused person in the FIR does not constitute any offence; or (b) No incidence of offence as alleged in the FIR has happened; or (c) the FIR contains “bare allegation” without attributing “acts or omission” on the part of the accused person, towards the commission of the offences; (d) There are unimpeachable evidence to show that the offence could not have been committed by the accused person as alleged; (e) The complainant intends to withdraw his / her complaint against the persons accused, and the High Court may allow such withdrawal.

Where a Private Criminal Complaint u/s 200 of CrPC, 1973 is filed before competent Magistrates Court, the Magistrate may either reject the Complaint u/s 203 or may issue Summons / Warrant to the Accused named therein in the Complaint u/s 204 of CrPC, 1973. 

Any party aggrieved by the Order of the Magistrate, whether u/s 203 or 204, may prefer Criminal Revision Application u/s 397 of CrPC, 1973, before the concerned Sessions Court.

Any party further aggrieved by the Order passed by Sessions Court, may prefer an Application u/s 482 of CrPC, 1973, before the concerned High Court.

Any party further aggrieved by the Order passed in Application u/s 482, may then invoke the SLP jurisdiction of the Apex Court.

Where an Application u/s 156(3) of CrPC, 1973 is filed before competent Magistrates Court, the Magistrate may either reject the said Application or may allow the said Application. 

Any party aggrieved by the Order of the Magistrate, may prefer Criminal Revision Application u/s 397 of CrPC, 1973, before the concerned Sessions Court.

Any party further aggrieved by the Order passed by Sessions Court, may prefer an Application u/s 482 of CrPC, 1973, before the concerned High Court.

Any party further aggrieved by the Order passed in Application u/s 482, may then invoke the SLP jurisdiction of the Apex Court.

During the course of trial, any of the parties may move Application u/s 311 of CrPC, 1973, for adducing additional evidence. The trial Court may allow or may not allow the said Application. Any party aggrieved by the Order passed in such Application, may prefer Revision Application u/s 397 before Sessions Court; or Application u/s 482 of CrPC, 1973.

In every Criminal Complaint / Criminal Application / Criminal Petition, the non-compliance to provisions of section 297 of CrPC, 1973, in respect of necessary averments in the Verification Clause, may render the said Criminal Complaint / Criminal Application / Criminal Petition as “DEFECTIVE” and said Criminal Complaint / Criminal Application / Criminal Petition shall be liable to be dismissed. A Miscellaneous Application may be made before the concerned Court in this regard for the dismissal of the said Criminal Complaint / Criminal Application / Criminal Petition.

If the trial results in acquittal of the Accused, the Complainant may prefer an Appeal u/s 378 of CrPC, before concerned High Court.

If the trial results in conviction of the Accused, if the Orders is passed by the Magistrates Court, the convict may prefer an Appeal u/s 374 or Revision u/s 397 of CrPC, before the concerned Sessions Court. If the Sessions Court uphold the Order of Conviction, the Convict may prefer a Revision u/s 401 of CrPC, 1973 before High Court.

Orders passed by Specially constituted Criminal Courts / Statutory Tribunals

The procedure to be followed before the concerned Special Court or Tribunal would be provided under the concerned statute under which the said Courts / Tribunals are constituted, and ordinarily, the provisions of CPC or CrPC, as the case may be, are made applicable to these specially constituted courts / tribunals, to the extent they are not inconsistent with the express provision of the statute governing the said court / tribunal, and further to the extent, the subject matters for which the concerned statute is silent. 

Whilst challenging Interim Orders passed by Statutory Tribunals / Courts, whereas they ordinarily are not possessed of powers of Review of their own orders, the remedy of Recall may be preferred. The Statute may provide a Revision to a higher forum or like nature remedy to challenge such Interim Orders. Further, Writ jurisdiction of High Court under Article 226 may be invoked in cases of Orders passed by Tribunals or by Administrative Authorities, if the nature of error is jurisdictional.

As regards Final Orders, the Statute would ordinarily provide Appeal mechanism. In the absence of such mechanism, or to challenge the Orders passed by Appellate Forum, Writ jurisdiction of High Court under Article 226, and  [Application under Article 227 (in cases of criminal proceedings)] or Civil Revision Application provided u/s 115 of CPC, 1908, before concerned High Court, may be preferred. 

Writ Jurisdiction

There had always been confusion amongst the lawyers as whether Writ jurisdiction is to be invoked under Article 226 or Supervisory jurisdiction of High Court under Article 227 is to be invoked whilst challenging the Orders passed by Civil Courts, Criminal Courts, Tribunals and quasi Judicial bodies. The judgment of Apex court in the case of Radhey Shyam Versus Chhabi Nath [2015] appears to have settled this controversy. The essence of the judgment is, all Orders passed by Civil and Criminal Courts may only be challenged under Art.227 of our Constitution and not under Article 226. And, all Orders passed by Tribunals or by any other Quasi judicial bodies / Administrative bodies discharging judicial functions, may be challenged under Article 226.

Miscellaneous instances

If where the Case was dismissed by the Court on technical shortcoming of any nature, the aggrieved party may argue before the Court / Tribunal that –

(a) A Party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Rules of Procedure are intended to be a handmaid to the Administration of Justice and they must therefore be construed liberally and in such manner as to render the enforcement of substantive rights effective. . [Ram Manohar Lal Vs NBM Supply]

(b) Every defect or error not going to the root of the matter cannot be allowed to defeat justice or afford an excuse to the Govt or a public officer to deny just claim. [Jones V Nicholls, (1844) 13 M & W 361.]

(c) Parties win or lose on substantial questions, not on technical tortures and Courts cannot be "abettors".[Noronha V Prem Kumari, 1980.]

(d) We cannot be oblivious of facts of life, namely the parties in Courts are mostly ignorant and illiterate, unversed in Law. Sometimes there Counsels are also inexperienced and not properly equipped, and the Court should endeavor to ascertain the truth to do justice to the parties. [Pahali Raut V Khulana Bewa, 1985.]

(e) The court should realize that the rules of the procedure of which pleadings form but a part, are matters of mere machinery for rendering justice. Courts approach should be pragmatic and not highly technical. Prakash Chandra versus Commissioner & Secretary, GOI – 1986 SC;

Where one is aggrieved by the Order of the Court, due to Collusive litigation between two parties, the said person may prefer an Application u/s 340 read with 195 of CrPC, 1973, before the Court which has passed the order in the said alleged Collusive litigation, praying that the person who has suffered under the Collusive litigation may be charged with section 208 of IPC, 1860.

Where a person fraudulently obtains a decree or order against any person for a sum not due or for a larger sum than is due, or for any property or interest in property to which he is not entitled, or fraudulently causes a decree or order to be executed against any person after it has been satisfied or for anything in respect of which it has been satisfied, or fraudulently suffers or permits any such act to be done in his name, may be charged u/s 210 of IPC, and for this, Application u/s 340 read with 195 of CrPC, 1973, may be preferred in the Court which has passed such decree, to initiate proceeding for offence u/s 210.


"Loved reading this piece by Sandeep Jalan?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"






Tags :


Category Others, Other Articles by - Sandeep Jalan 



Comments


update
Post a Suggestion for LCI Team
Post a Legal Query