Upgrad LLM

precedents


Hello every one.

I am parctising as an advocate in lowers court since almost 8 years .And what i have learned from my seniors advocates is that rel;ying of Judgements is a good practice and its supports your case much.And as suggested by my seniors i am following the same policy.But on many occasion i had come across to face situations where the orders were passed blindly as per the wish of the Presiding officer that too without any discussion on the Rulings we file .And the above thing has happened to me many times.And i went sleepless nights many times thinkinh why it happened.The opponent ADVOCATE who just remains mumum by folding hands before the Presiding officer gets an order in his favour.And i who put lot of hardwork and effort fails .And when ever i ask share this to my friends and colleague ADVOCATE they just sinply suggest me sayaing that you file an Appeal.I know that thier is an appeal from my order.But why the lower court judges doesnot feel necessary to discuss thye Judgements we file .And when we go thorugh HSupreme Court and High Court Judgements they discuss everything.But the lower court judges with premind pass order.Really i want the same to be questioned before the Hon'ble Justice of Supreme Court regarding this beacuse sometimes i feel to quit of this profession.Please suggest me how can i overcome this pain .

 
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ADVISOR

The problem you are facing is the reality and the inherent powers to courts and the judges not being answerable is the root cause of the situation.You can not do anything to improve the situation.Bar Association in my opinion too would not raise the matter as every advocate has to face the judges.

You deserve admiration for raising the issue.Try to raise further as it may help in long run and also may be instrumental in bringing other advocates to raise the issue.

In the meantime,I would like to suggest a few safeguards that you should follow:

1.Keep in mind that trial court is most important hence,fight with full spirit,don't ever depend on appeals.

2.Prepare a list of issues yourself and ensure that all the issues listed by you are included while the court frames issues.

3.Never depend on CITATIONS as these are normally used to justify the decision given by the judge.In the jungle of citations truth and facts are easily missed .

4.In case you have to file an appeal then also keep in mind that first appellate court being the final court so far as facts are concerned so impress upon there to get the facts noticed and for it you have to exercise the same procedure as explained in point 2 above.

5.Normally the appellate court does not list the issues but it is dutybound to frame issues and discuss each and every point and then come to the decision,so don't hesitate and get the issues listed there too.


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ADVISOR

Dear Mr Sanjay I

I would like to draw your attention to the judgment quoted herein.You too can adopt the principle laid down in the judgment :

 

                                                             REPORTABLE
 
                    IN THE SUPREME COURT OF INDIA
 
                     CIVIL APPELLATE JURISDICTION
 
                   S.L.P. Civil) No(s).2896 OF 2010
 
 
B.S.KRISHNA MURTHY & ANR.                               Petitioner(s)
 
                         VERSUS
 
B.S.NAGARAJ & ORS.                                       Respondent(s)
                             O R    D    E   R
 
    Heard learned counsel for the appearing parties.
 
    This is a dispute between brothers. In our opinion, an
 
effort should be made to resolve the dispute between the
 
parties by mediation.
 
    In      this    connection,     we   would   like   to   quote   the
 
following     passages     from      Mahatma     Gandhi's    book    'My
 
Experiments with Truth'       :-
 
 
 
         "I saw that the facts of Dada Abdulla's case
         made it a very strong indeed, and that the
         law was bound to be on his side. But I also
         saw   that  the   litigation,  if   it  were
         persisted in, would ruin the plaintiff and
         the defendant, who were relatives and both
         belonged to the same city. No one knew how
         long the case might go on.     Should it be
         allowed to continue to be fought out in
         court, it might go on indefinitely and to no
         advantage of either party. Both, therefore,
         desired an immediate termination of the
         case, if possible.
 
                                   :1:
I approached Tyeb Sheth and requested and
advised him to go to arbitration.          I
recommended him to see his counsel. I
suggested to him that if an arbitrator
commanding the confidence of both parties
could be appointed, the case would be
quickly finished. The lawyers' fees were so
rapidly mounting up that they were enough to
devour all the resources of the clients, big
merchants as they were. The case occupied so
much of their attention that they had no
time left for any other work.        In the
meantime   mutual   ill-will  was   steadily
increasing. I became disgusted with the
profession. As lawyers the counsel on both
sides were bound to rake up points of law in
support of their   own clients.   I also saw
for the first time that the winning party
never recovers all the costs incurred. Under
the Court Fees Regulation there was a fixed
scale of costs to be allowed as between
party and party, the actual costs as between
attorney and client being very much higher.
This was more than I could bear.      I felt
that my duty was to befriend both parties
and bring them together. I strained every
nerve to bring about a compromise. At last
Tyeb Sheth agreed.       An arbitrator was
appointed, the case was argued before him,
and Dada Abdulla won.
 
But that did not satisfy me. If my client
were to seek immediate execution of the
award, it would be impossible for Tyeb Sheth
to meet the whole of the awarded amount, and
there was an unwritten law among the
Porbandar Memons living in South Africa that
death should be preferred to bankruptcy. It
was impossible for Tyeb Sheth to pay down
the whole sum of about # 37,000 and costs.
He meant to pay not a pie less than the
amount, and he did not want to be declared
bankrupt. There was only one way.       Dada
Abdulla should allow him to pay in moderate
installments. He was equal to the occasion,
and granted Tyeb Sheth installments spread
over a very long period.       It was more
difficult for me to secure the concession of
payment by instalments than to get the
parties to agree to arbitration. But both
were happy over the result, and both rose in
         the   public   estimation.     My  joy   was
          boundless. I had learnt the the practice of
          law. I had learnt to find out the better
          side of human nature and to enter men's
          hearts. I realized that the true function of
          a lawyer was to unite parties riven asunder.
          The lesson was so indelibly burnt into me
          that a large part of my time during the
          twenty years of my practice as a lawyer was
          occupied    in    bringing   about   private
          compromises of hundreds of cases.     I lost
          nothing thereby-not even money, certainly
          not my soul."
 
 
 
 
    In our opinion, the lawyers should advise their clients
 
to try for mediation for resolving the disputes, especially
 
where   relationships,       like    family   relationships,        business
 
relationships,      are     involved,       otherwise,     the    litigation
 
drags   on    for   years    and    decades   often   ruining      both   the
 
parties.
 
 
 
    Hence, the lawyers as well as litigants should follow
 
Mahatma      Gandhi's     advice      in    the   matter    and    try    for
 
arbitration/mediation.         This is also the purpose of Section
 
89 of the Code of Civil Procedure.
 
 
 
    Let the matter be referred to the Bangalore Mediation
 
Centre.       The   parties are      directed to      appear before       the
 
Bangalore Mediation Centre on 21.02.2011.
 
                                      :3:
    List after receiving report from the Mediation Centre.
 
 
 
 
                                  .....................J.
                                  (MARKANDEY KATJU)
 
 
 
                                  .....................J.
                                  (GYAN SUDHA MISRA)
NEW DELHI;
JANUARY 14, 2011.
 
 
 
 
                        :4:
 
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