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Chandra (owner)     26 April 2013

Can we file written arguments for i.a ?

Dear Experts,

I have filed an I.A for interim custody of my 4 year old child and my wife filed the counter for it 7 months after the receipt of the notice. Facts are in my favor but she is blindly objecting on vague grounds stating that it would be harmful for the child to be with me. I have completed 6 visitations in 6 months so far. I am not being heard in the court be it with lawyer or without lawyer. Hence I am contemplating of filing written arguements for this I.A. Please let me know if I can submit written arguements for I.A. Your experienced suggestion would surely contributes to the success of my case. Thank lots for your support.



 23 Replies

Adv Archana Deshmukh (Practicing Advocate)     26 April 2013

You can submit written arguments. However, argue orally also.

1 Like

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     26 April 2013

What ever you may think the custody law is gender biased so normal custody is with mother.

 

Arguments  written  or spoken is legal expertise which comers by experience only so let your advocate do it.

Anjuru Chandra Sekhar (Advocate )     26 April 2013

@Adv. Archana.  I have some questions like, "what is the weightage given by court for Written and Oral representation of case" (50:50, 75:25....in those terms).  And where can I find this subject on Internet or in any book?  If yes who is author?  Can you give me any case laws where Apex court or High courts have discussed this subject.


(Guest)

It is always beneficial for any case to put all arguments/objections in writing. As, oral arguments/objections everything cannot be noted by the judge. So if there is any one sided order and when the party wants to approach the higher court, there the upper court will only see what is actually written in the case sheets, and based on that the higher court will quash or setaside orders passed by the lower court.

1 Like

Anjuru Chandra Sekhar (Advocate )     26 April 2013

@Adv. Archana.  Also whether the proceedings in court hearings are recorded.  If yes, by what mode?  And under which topic I can find the subject of Basic Purpose of Court Hearing.

Anjuru Chandra Sekhar (Advocate )     26 April 2013

@Helping hand.  Thanks very much.  I have not seen your reply while posting the second question.  Can you enlighten me on the second question.


(Guest)

 

Originally posted by : chandrasekhar.7203@ gmail.com

@Helping hand.  Thanks very much.  I have not seen your reply while posting the second question.  Can you enlighten me on the second question.

I hope you are talking about this question

 

"Also whether the proceedings in court hearings are recorded.  If yes, by what mode?  And under which topic I can find the subject of Basic Purpose of Court Hearing."

 

There will be a stenographer like in olden days, now there is a computer operator who will take down what he or she is told to take down by the judge.


In oral arguments/objections two lawyers or sometimes 3-4 lawyers will be talking at the same time.  That is a real argument scene in the court.


Given such a case, the judge might miss a point or two here or there, or the computer operator might miss a point.


Though the judge will look into what has been typed, later on.  There is no gaurantee that each point has been noted down.


So as I said, it is better to put everything in writing.


In sessions court or the high court, there are hardly any arguments in front of the judge like what I described above.


The judge in a higher court will look only into the merits of the case and in accordance to law will pass an order, when such being the case its better to put each and everything in writing.

1 Like

Anjuru Chandra Sekhar (Advocate )     26 April 2013

I have attended one High court proceeding.  I had seen that the judge was grilling the Advocates there.  One judge was sitting and watching without uttering even a single word.  It was a Division Bench.  What do they question the Advocates? 

Tajobsindia (Senior Partner )     26 April 2013

1.    It should be prayed first and then get allowed so that same forms part of material records of the file.

2.    Here is interesting insight for other repliers; Ref. Mst. Kiran Chhabra and Anr. Vs. Mr. Pawan Kumar Jain and Ors. [CS (OS) No. 1671/2009 – Annexed herein in PDF file format], which deals with an aspect not usually touched or detailed by Courts i.e. ‘How to write Written Arguments in a case’. It is a very short crisp and complete judgment briefing about what the Court expects to be there in the written arguments when it asked for the same from the counsel.

3.    Here is yet another interesting insight for other repliers; Written arguments are recognized in Order XVIII Rule 2 (3A) CPC.


Attached File : 305786580 mst kiran chhabra vs mr. pawan kumar jain.pdf downloaded: 234 times
2 Like

Anjuru Chandra Sekhar (Advocate )     26 April 2013

@Tajobsindia.  Can you help me know by reading which topic/book/weblink I can know about the Purpose of Hearing in courts.  I want a historical perspective of it.  How the hearing came into existence in judicial proceedings and all.  I have been searching on the Internet I am not finding the subject anywhere.

Tajobsindia (Senior Partner )     26 April 2013

1.    You are actually inviting me to invest result of 1,000 years of legal evolution that also for free !

2.    Sorry I like to recuse myself from this very discussion after leaving few hints.

 

[-     Geoffrey Rivlin, Understanding the Law, Oxford, 2004.

-      Lorch, Robert (1980). Democratic Process and Administrative Law. Wayne State - University Press.

-      read about Trial by Ordeal.

-      read about Trail by Water.

-      read about Trail by Combat.

-      read about seeds of modern justice system laid by Henry II (1154 - 1189)

-      read about Assize of Clarendon.

-      then read History of First World Court]

1 Like

Chandra (owner)     26 April 2013

I am very grateful to the esteemed experts of LCI for your continuous support in my endeavor and once again many thanks to all for your invaluable inputs to the present post.

Adv Archana Deshmukh (Practicing Advocate)     28 April 2013

@ Chandrasekhar ji,

Your other queries are aptly replied by Tajobsindia, so I will now restrict my reply to your query relating to difference in weightage given by the court to the oral and written arguments. You thinking in terms of proportion is itself erroneous. In some cases it is better to give written notes of argumens bcoz they form a part of the record and if the judge misses some of the point and judgment goes against you,  it can be shown to the appeallate court that it was raised. Of course is not at all necessary nor required to submit written arguments in all the cases. There are citations of high court where the courts also have held that filing of written arguments does not dispense with the advocate’s liability of doing oral arguments. Apart from this legal mandate, oral arguments should be there for the practical reason that during the course of arguments we can explain and clarify our case on fact and law in a better manner also the judges do put up their queries and views in respect of legal points involved and its applicability to the case and the advocate can better resolve them on the spot and clarify his point in a better manner and ensure that the judge is convinced on that point.

1 Like

Anjuru Chandra Sekhar (Advocate )     28 April 2013

Advocates are very busy professionals.  They may forget what is submitted in written pleadings/arguments. Supposing there is inconsistency between what is written and what is being extemporaneously explained, which one the judge will take?


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