a)
In order to commence a
legal action, the person must have some real grievance against any person, i.e.
he must claim that his rights, whether under the law, or under the contract, or
under equity, or under the common law or customs, is infringed; or must say
that law has been breached to his prejudice.
b)
A heavy burden is ordinarily
cast upon the Person who invokes the jurisdiction of the Court, claiming that
his rights have been infringed or the law is breached to his prejudice; and he
has to make out a clear cut case for the reliefs he claim / pray for.
c)
Narration of material
“Facts of the Case” is the “backbone”
of any litigation; and is perhaps one of the most important skills of the
draftsman, and which really decides the “fate” and “length” of the concerned
litigation. Therefore, it is of core importance to understand what really
constitute “Material Facts of the Case”.
d)
The question may arise
as what constitutes “Material facts of the case”. But before dealing with
Material facts, we may understand well what are “Facts of the case”.
e)
“Facts of the case”
are “chain of events” which has ultimately resulted in the dispute / resulted
in accrual of Right or Reason for a person to adopt legal action. However, not
all facts of the case are “Material facts of the case”.
f)
Almost, in every
dispute / alleged infringement of right, the suffering party is entitled for
one or more reliefs which he may lawfully obtain from the Court of law.
g)
“Material facts of the
case” has a direct nexus with “Principal nature of relief” which is sought to
be obtained from the concerned Court of law; and the “Principal nature of
relief” sought to be obtained from the concerned Court of law would determine
“Material facts of that case”.
h)
“Material facts of the
case” are only those facts which if proved by the party, will entitle the said
party to claim the Principal and incidental reliefs against the other, from the
concerned Court of law.
i)
The O.6 R.2 of CPC says
that every pleading (Plaint and Written statement) shall contain, and contain
only, a statement in a concise form of the material facts on which the party
pleading relies for his claim or defense, as the case may be, but not the
evidence by which they are to be proved.
j)
In this write up, I am
trying to assess what is the scope of “material facts of the case”.
k)
THE acts and omissions of the parties prior to the filing of the Suit; and
nature of legal obligations voluntarily / or under the law, incurred by the
parties against each other, ordinarily may constitute “Material facts of the
Case”.
l)
AND, it may further be
appreciated that, what is required to be set out in the Plaint / Written
statement, are the “material facts of the case”, i.e. the facts which have
immediate / close nexus with the Reliefs claimed in the Plaint.
m)
Like for example, in a
dispute between Husband & Wife over allegations of cruelty, wherein the
Wife registers complaint before the Police, and the Police, unlawfully and
without following the due process of law, arrest / detains the Husband and his
relatives; and therefore, if a Suit for damages for misuse of powers / illegal
arrest and confinement (Articles 72/73/74 of Limitation Act, 1963), is to be
filed against the State Govt., then material facts for the said Suit would be
the “fact of arrest / detention” and “fact of its patent illegality. In the
said Suit, the facts of allegations or denial of cruelty may not be elaborately
set out. Those facts of cruelty may be of relevance in a case for divorce
Petition or in alike proceedings.
n)
AND, it is of equal
significance to import maximum objectivity in the Pleadings which will
invariably struck the opposite party to deal with the allegations made in the
Plaint / WS; and failure to explain and the mere denial of fact by the opposite
party, may amount to admission of fact, and may result in the conclusion of the
proceedings, by virtue of “judgment on admission”, as provided under O.12 R.6
of CPC or rejection of Plaint as provided under O.7 R.11(a) to (d); and if the
facts alleged are denied with false defense, the opposite party may be
subjected to criminal prosecution of perjury, as provided under S.191., 193,
199 of Indian Penal Code, for which proceedings may be adopted u/s 340 r/w 195 of
CrPC.
o)
Further, in the absence
of “required pleadings”, the Plaint may be wanting in “Material proposition of
fact” [contemplated under O.14 R.1(2)] which the Plaintiff must prove (if
disputed by the adversary) in order to claim reliefs; and therefore no issues
could be framed if the pleadings are alleged to be wanting in specific details,
or alleged to be vague or general in nature. “Material proposition” appears to
be such proposition of facts which are peculiar to each kind of Suits, which
must be alleged to exist in the Plaint to claim relief.
p)
AND, whereas what
material facts are to be pleaded, would of course depend upon the nature of
relief claimed / prayed for, however, the judicially ascertained definition of
“cause of action” would furnish a brilliant answer as what should be pleaded in
the Plaint / WS. Let us look at Cause of action.
q)
In order to commence a
legal action, the person must have some real grievance against the person,
which is the foundation of any legal action, i.e. he must claim that his
rights, whether under the law, or under the contract, or under equity, or under
the common law or customs, is infringed.
r)
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 01.01.2014, 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
Plaintiff, to claim a decree from the court; or to say, every fact, which, if traversed, it would be necessary
for the Plaintiff to prove, in order to support his right to the judgment of
the Court.
s)
From the second definition, it also follows that
the Plaintiff is not obliged to prove every fact which is being “disputed” by
the defendant; and he is required to prove only those facts which are
“necessary”, in order to support his right to the judgment of the Court. The expression “material facts” is also
known as “Integral facts”. (2007) 6 SCC 769 – Paras 40, 41.
t)
Therefore, in the
backdrop of reliefs he is claiming, it is for the Plaintiff to ascertain, the
facts he has to prove, to authoritatively ask for judgment in his favour; and
therefore must clearly set out in his pleadings, those facts. The pleadings, as
far as possible, must be supported by documentary evidences [O.7 R.14; O.8
R.1A] available under the law.
u)
And, so as to have
comprehensive understanding of pleadings, regard may be had to mandate of O.7
R.1(e), O.14 R.1(2) and O.7 R.14 and O.8 R.1A.
v)
O.7 R.1(e) mandates that
Plaint shall contain the facts “constituting the cause of action”, and when it
arose;
w)
O.14 R.1(2) mandates
that the Plaintiff must lay down the Material propositions of fact in order to
show that he has a right to sue, so that an issue may be framed by the Court,
if the said proposition of fact is disputed by the defendant. Further, the right
must be subsisting on the date of filing of the Suit.
x)
O.7 R.14 / O.8 R.1A mandates
that where a plaintiff / Defendant sues / rely upon a document or relies upon
document in his possession or power, in support of his claim / defense, he
shall annex the same along with the Plaint / WS; and where any such document is
not in the possession or power of the plaintiff / Defendant, they shall,
wherever possible, state in whose possession or power it is.
y)
And whereas issues are
framed on the basis of pleadings of the parties, and issues [O.14 R.1(5)] can
only be framed, when the Court finds that required evidentiary foundation is
laid down in the pleadings to prove a “disputed fact”. If the facts are merely pleaded
or disputed by the party in his pleading, without any basis or grounds, the
Court is not bound to frame issue on the said disputed fact; and the relief
claimed by the Plaintiff may be denied on the basis of such pleading; or the
fact if disputed but grounds for such dispute if not set out in the WS, the
said fact may said to be admitted by the defendant.
z) In this respect, it is also useful to look
into the definition of “fact”, “facts in issue”, “evidence” provided u/s 3 of
Evidence Act; and mandate of section 5 of Evidence Act, which states that Evidence
may be given in any suit or proceedings of every fact in issue and that of such
other facts as are hereinafter declared to be relevant, and of no others.
S.3:
"Evidence""Evidence" means and includes: All statements which the Court permits or
requires to be made before it by witnesses, in relation to matters of fact
under inquiry, such statements are called oral evidence; all documents
including electronic records produced for the inspection of the Court, such
documents are called documentary evidence.
S. 5: Evidence may be given of facts in
issue and relevant facts: Evidence may be given in any suit or
proceedings of the existence or non-existence of every fact in issue and of
such other facts as are hereinafter declared to be relevant, and of no others.
S.3:
"Fact".-"Fact" means and includes: Anything, state of things, or relation of things, capable of being
perceived by the senses; any mental condition of which any person is conscious.
S.3: "Facts in issue".-The
expression "facts in issue" means and includes- any fact from which,
either by itself or in connection with other facts, the existence,
non-existence, nature, or extent of any right, liability, or disability,
asserted or denied in any suit or proceeding, necessarily follows.
aa) The “Fact” implies– something that actually
exists; an aspect of reality; an actual or alleged event or circumstance, as
distinguished from its legal effect, consequence or interpretation; an evil
deed; a crime. (Source: Blacks Law dictionary). It is also very
essential to appreciate the distinction between “Facts” and “Facts in issue”.
bb) The
“Facts” are principal facts; and the trial court while appreciating the
evidence adduced (“facts in issue” / “relevant facts”) would record a finding
to the existence or non existence of the alleged “fact”; and the said process
may also be termed as “finding of fact” or a fact “proved / disproved / not
proved”.
cc)
It is essential to
appreciate the distinction between “Facts” and “Facts in issue”.
dd) “Facts
in issue” are those facts by which the existence of principal facts are sought
to be established; are also known as “predicate fact”, from which presumption
or inference arises, also termed as fundamental fact or evidentiary fact. Facts
in issue may also be referred to as Physical fact: a fact having a physical
existence, such as finger print left at a crime scene. Also known as Primary
facts: a fact, which can be established by direct testimony and from which
inferences are made, leading to ultimate facts. (Source: Blacks Law Dictionary)
ee)
Facts in issue are those
facts which are so closely and intimately attached to the “Issue”; and by the
natural inference from which the existence / non-existence of said “issue” may
be determined.
ff)
The mandate of S.5 of
the Evidence Act may be instructive in this respect which says that evidence
may be given of “facts in issue” and of “relevant facts”, and of no others
[Sections 6 to 55 of Evidence Act]. It is also well settled that the party
leading any evidence, must in the first instance, plead such facts, and then
only he is allowed to lead evidence on such fact. [(2014) 5 MhLJ 233] (2010) 1 SCC 466; (2007) 10 SCC
21, 27; (1999) 4 SCC 403; (1999) 8 SCC 692; AIR 2012 SC 264. AND, therefore,
“Facts in Issue” and “Relevant Facts” also constitute material facts of the
case and must also be pleaded, alongwith principal facts.
gg) Therefore, a heavy burden is cast upon the Plaintiff
who invokes the jurisdiction of the Court, to make out a clear cut case for the
reliefs he claims; and my brief experience shows that a frivolous Suit would
always be wanting in “pleading of material facts”, and the Plaint may liable to
be rejected as provided under O.7 R.11(a) to (d), as the case may be; and in
every Application under O.7 R.11(a), it must be shown that, in the chain of
events, Plaintiff is obliged to prove “this fact” to claim “this Relief”, and
the said “this fact” is not “duly” pleaded in the Plaint; and therefore, the
Plaint does not disclose cause of action. “Duly” implies a fact which is
pleaded and which is supported by applicable / required documentary evidence,
upon which the Court can frame an “issue” if the said fact is disputed;
hh) And if the Plaintiff makes out a good case, the burden
then falls upon the Defendant to “traverse” the material facts; and his failure
to adequately “traverse” the material facts, as provided under O.8 Rr.1A, 3, 4,
and 5, may entitle the Plaintiff to claim decree based on the mandate of O.12
R.6, r/w O.15, r/w Sections 17 and 58 of Evidence Act.
ii)
While deciding O.7 R.11
Applications, whilst WS may not be looked into, at the same time, for the
purpose of securing that Plaint discloses complete cause of action, it may be
presumed that everything stated in the Plaint is denied in the WS, and then,
based on this presumption, the Court may see, Principal issues which invariably
arises in the nature of Suit which is filed, if can be framed. It may be
appreciated that “Issues” can only be framed where the Party adduces sufficient
evidence (documentary or otherwise) in support of his plea, in the Plaint.
jj)
Therefore, in every litigation,
the Plaintiff must discern / make himself duly acquainted with, as which set of
facts he must prove, so as to authoritatively ask for the relief he is claiming;
and more so, it is important for the defendant to discern / make out those “set
of facts” which must be pleaded and proved by the Plaintiff, before he can
authoritatively ask for judgment in his favour, for, if the Plaintiff fails to
plead or prove even one fact among those “set of facts”, may render the case of
the Plaintiff “fall”.
kk) In my
limited understanding of things, a broad approach to drafting of any case may
be undertaken in three chronological “Heads” –
i.
Reliefs prayed for /
claimed;
ii.
Grounds for Reliefs
prayed / claimed for; (both factual and legal);
iii.
Narration of Facts substantiating
the said grounds. Further, there would be narration of such facts, which would
lay foundation for “material facts of the case”.
ll) It is of central importance that any Relief prayed for
/ claimed, must be duly articulated, keeping in mind (a) the jurisdiction of
the concerned court, where the case is sought to be instituted; (b) the rights
/ interest claimed of, by the Plaintiff/Petitioner/ Complainant; (c) the
obligations and liabilities of the opposite parties / defendant alleged of;
mm) Further, every principal
Relief claimed, must be supported by sufficient grounds, to make a strong case
for the entitlement of the said Relief and further claim of consequential
reliefs thereupon;
nn)
Grounds for Reliefs
prayed for / claimed, implies (a) the essence / conclusion of material facts;
and (b) other legal provisions which supports the reliefs prayed / claimed.
oo) Also, Courts exercises limited jurisdiction, in
respect of certain Applications, wherein the provision of law itself prescribes
the conditions, on the satisfaction of which, the court may exercise its
jurisdiction. Like for example, in Civil Revision Application, conditions
prescribed for exercising jurisdiction are narrated in Section 115 itself.
Likewise, there could be Review Applications, Application for condonation of
delay, Bail Applications, Criminal Revision Application, Application u/s 482 of
CrPC, 1973 and so on.
pp) Also, while claiming any relief under Specific Relief
Act, 1963, the said Act also indicates the conditions to be satisfied with,
while claiming respective relief. In fact, in the exercise of every
jurisdiction, the conditions to be satisfied with, for the exercise of said
jurisdiction by the Court, are provided in the concerned Section / Article
itself, which confers jurisdiction upon the Court to entertain the concerned
Application / Suit / Petition. Further, Appendix A, annexed to CPC, 1908, may
be of great assistance in this respect.
The great importance of adequate and necessary
pleadings in Civil litigation was emphasized by Supreme Court in recent two
judgments. The relevant portion of the judgment is produced hereinafter.
Maria Margarida Judg of Supreme Court in March 2012.
[AIR 2012 SC 1727:(2012) 5 SCC 370]
Para 39: Certainly, the above,
is not true of the Indian Judicial system. A judge in the Indian System has to
be regarded as failing to exercise its jurisdiction and thereby discharging its
judicial duty, if in the guise of remaining neutral, he opts to remain passive
to the proceedings before him. He has to always keep in mind that "every
trial is a voyage of discovery in which truth is the quest". In order to
bring on record the relevant fact, he has to play an active role; no doubt
within the bounds of the statutorily defined procedural law.
Para 42: In civil cases,
adherence to Section 30 CPC would also help in ascertaining the truth. It seems
that this provision which ought to be frequently used is rarely pressed in
service by our judicial officers and judges. Section 30 CPC reads as under:-
Section 30. Power to order
discovery and the like. - Subject to such conditions and limitations as may be
prescribed, the Court may, at any time either of its own motion or on the
application of any party, - (a) make such orders as may be necessary or reasonable
in all matters relating to the delivery and answering of interrogatories, the
admission of documents and facts, and the discovery, inspection, production,
impounding and return of documents or other material objects producible as
evidence;
(b) issue summons to persons
whose attendance is required either to give evidence or to produce documents or
such other objects as aforesaid;
(c) order any fact to be
proved by affidavit
Para 52: Truth is the
foundation of justice. It must be the endeavour of all the judicial officers
and judges to ascertain truth in every matter and no stone should be left
unturned in achieving this object. Courts must give greater emphasis on the
veracity of pleadings and documents in order to ascertain the truth.
Para 53: Pleadings are the
foundation of litigation. In pleadings, only the necessary and relevant
material must be included and unnecessary and irrelevant material must be
excluded. Pleadings are given utmost importance in similar systems of
adjudication, such as, the United Kingdom and the United States of America.
Para 64: There is a
presumption that possession of a person, other than the owner, if at all it is
to be called possession, is permissive on behalf of the title-holder. Further,
possession of the past is one thing, and the right to remain or continue in
future is another thing. It is the latter which is usually more in controversy
than the former, and it is the latter which has seen much abuse and misuse
before the Courts.
Para 67: In an action for
recovery of possession of immovable property, or for protecting possession
thereof, upon the legal title to the property being established, the possession
or occupation of the property by a person other than the holder of the legal
title will be presumed to have been under and in subordination to the legal
title, and it will be for the person resisting a claim for recovery of
possession or claiming a right to continue in possession, to establish that he
has such a right. To put it differently, wherever pleadings and documents
establish title to a particular property and possession is in question, it will
be for the person in possession to give sufficiently detailed pleadings,
particulars and documents to support his claim in order to continue in
possession.
Para 69: The person averring a
right to continue in possession shall, as far as possible, give a detailed
particularized specific pleading along with documents to support his claim and
details of subsequent conduct which establish his possession.
Para 70: It would be
imperative that one who claims possession must give all such details as
enumerated hereunder. They are only illustrative and not exhaustive.
(a) who is or are the owner or
owners of the property;
(b) title of the property;
(c) who is in possession of
the title documents
(d) identity of the claimant
or claimants to possession;
(e) the date of entry into
possession;
(f) how he came into
possession - whether he purchased the property or inherited or got the same in
gift or by any other method;
(g) in case he purchased the
property, what is the consideration; if he has taken it on rent, how much is
the rent, license fee or lease amount;
(h) If taken on rent, license
fee or lease - then insist on rent deed, license deed or lease deed;
(i) who are the persons in
possession/occupation or otherwise living with him, in what capacity; as family
members, friends or servants etc.;
(j) subsequent conduct, i.e.,
any event which might have extinguished his entitlement to possession or caused
shift therein; and
(k) basis of his claim that
not to deliver possession but continue in possession.
Para 71: Apart from these
pleadings, the Court must insist on documentary proof in support of the
pleadings. All those documents would be relevant which come into existence after
the transfer of title or possession or the encumbrance as is claimed. While
dealing with the civil suits, at the threshold, the Court must carefully and
critically examine pleadings and documents.
Para 72: The Court will
examine the pleadings for specificity as also the supporting material for
sufficiency and then pass appropriate orders.
Para 73: Discovery and
production of documents and answers to interrogatories, together with an
approach of considering what in ordinary course of human affairs is more likely
to have been the probability, will prevent many a false claims or defences from
sailing beyond the stage for issues.
Para 74: If the pleadings do
not give sufficient details, they will not raise an issue, and the Court can
reject the claim or pass a decree on admission.
Para 75: On vague pleadings,
no issue arises. Only when he so establishes, does the question of framing an
issue arise. Framing of issues is an extremely important stage in a civil
trial. Judges are expected to carefully examine the pleadings and documents
before framing of issues in a given case.
Para 78: The Court must ensure
that pleadings of a case must contain sufficient particulars. Insistence on
details reduces the ability to put forward a non-existent or false claim or
defence.
Para 79: In dealing with a
civil case, pleadings, title documents and relevant records play a vital role
and that would ordinarily decide the fate of the case.
Para 80: It is a settled
principle of law that no one can take law in his own hands. Even a trespasser
in settled possession cannot be dispossessed without recourse of law. It must
be the endeavour of the Court that if a suit for mandatory injunction is filed,
then it is its bounden duty and obligation to critically examine the pleadings and
documents and pass an order of injunction while taking pragmatic realities
including prevalent market rent of similar premises in similar localities in
consideration. The Court's primary concern has to be to do substantial justice.
Even if the Court in an extraordinary case decides to grant ex-parte ad interim
injunction in favour of the plaintiff who does not have a clear title, then at
least the plaintiff be directed to give an undertaking that in case the suit is
ultimately dismissed, then he would be required to pay market rent of the
property from the date when an ad interim injunction was obtained by him. It is
the duty and the obligation of the Court to at least dispose off application of
grant of injunction as expeditiously as possible. It is the demand of equity
and justice.
Para 81: Due process of law
means nobody ought to be condemned unheard. The due process of law means a
person in settled possession will not be dispossessed except by due process of
law. Due process means an opportunity for the defendant to file pleadings
including written statement and documents before the Court of law. It does not
mean the whole trial. Due process of law is satisfied the moment rights of the
parties are adjudicated by a competent Court.
Para 82: The High Court of
Delhi in a case Thomas Cook (India) Limited V/s. Hotel Imperial 2006 (88) DRJ
545 held as under:
"28. The expressions `due
process of law', `due course of law' and `recourse to law' have been
interchangeably used in the decisions referred to above which say that the
settled possession of even a person in unlawful possession cannot be disturbed
`forcibly' by the true owner taking law in his own hands. All these
expressions, however, mean the same thing -- ejectment from settled possession
can only be had by recourse to a court of law. Clearly, `due process of law' or
`due course of law', here, simply mean that a person in settled possession
cannot be ejected without a court of law having adjudicated upon his rights qua
the true owner.
Now, this `due process' or
`due course' condition is satisfied the moment the rights of the parties are
adjudicated upon by a court of competent jurisdiction. It does not matter who
brought the action to court. It could be the owner in an action for enforcement
of his right to eject the person in unlawful possession. It could be the person
who is sought to be ejected, in an action preventing the owner from ejecting
him. Whether the action is for enforcement of a right (recovery of possession)
or protection of a right (injunction against dispossession), is not of much
consequence. What is important is that in either event it is an action before
the court and the court adjudicates upon it. If that is done then, the `bare
minimum' requirement of `due process' or `due course' of law would stand
satisfied as recourse to law would have been taken. In this context, when a
party approaches a court seeking a protective remedy such as an injunction and
it fails in setting up a good case, can it then say that the other party must
now institute an action in a court of law for enforcing his rights i.e., for
taking back something from the first party who holds it unlawfully, and, till
such time, the court hearing the injunction action must grant an injunction
anyway? I would think not. In any event, the `recourse to law' stipulation
stands satisfied when a judicial determination is made with regard to the first
party's protective action. Thus, in the present case, the plaintiff's failure
to make out a case for an injunction does not mean that its consequent
cessation of user of the said two rooms would have been brought about without
recourse to law."
Para 84: False claims and
defences are really serious problems with real estate litigation, predominantly
because of ever escalating prices of the real estate. Litigation pertaining to
valuable real estate properties is dragged on by unscrupulous litigants in the
hope that the other party will tire out and ultimately would settle with them
by paying a huge amount. This happens because of the enormous delay in
adjudication of cases in our Courts. If pragmatic approach is adopted, then
this problem can be minimized to a large extent.
Para 85: This Court in a
recent judgment in Ramrameshwari Devi and Others (supra) aptly observed at page
266 that unless wrongdoers are denied profit from frivolous litigation, it
would be difficult to prevent it. In order to curb uncalled for and frivolous
litigation, the Courts have to ensure that there is no incentive or motive for
uncalled for litigation. It is a matter of common experience that Court's
otherwise scarce time is consumed or more appropriately, wasted in a large
number of uncalled for cases. In this very judgment, the Court provided that
this problem can be solved or at least be minimized if exemplary cost is
imposed for instituting frivolous litigation. The Court observed at pages
267-268 that imposition of actual, realistic or proper costs and/or ordering
prosecution in appropriate cases would go a long way in controlling the
tendency of introducing false pleadings and forged and fabricated documents by
the litigants. Imposition of heavy costs would also control unnecessary
adjournments by the parties. In appropriate cases, the Courts may consider
ordering prosecution otherwise it may not be possible to maintain purity and
sanctity of judicial proceedings.
Ramrameshwari Devi Judg of SC in July, 2011. [(2011) 8
SCC 249]
Para 31: The learned Amicus
Curiae has taken great pains in giving details of how the case has proceeded in
the trial court by reproducing the entire court orders of 1992 suit. In order
to properly comprehend the functioning of the trial courts, while dealing with
civil cases, we deem it appropriate to reproduce the order sheets of 1992 suit.
This is a typical example of how a usual civil trial proceeds in our courts.
The credibility of entire judiciary is at stake unless effective remedial steps
are taken without further loss of time. Though original litigation and the
appeal which commenced from 1977 but in order to avoid expanding the scope of
these appeals, we are dealing only with the second litigation which commenced
in 1992.
Para 43: Framing of issues is
a very important stage in the civil litigation and it is the bounden duty of
the court that due care, caution, diligence and attention must be bestowed by
the learned Presiding Judge while framing of issues.
Para 44: In the instant case
when the entire question of title has been determined by the High Court and the
Special Leave Petition against that judgment has been dismissed by this court,
thereafter the trial court ought not to have framed such an issue on a point
which has been finally determined upto this Court. In any case, the same was
exclusively barred by the principles of res judicata. That clearly demonstrates
total non-application of mind.
Para 45: We have carefully
examined the written submissions of the learned Amicus Curiae and learned
counsel for the parties. We are clearly of the view that unless we ensure that
wrong- doers are denied profit or undue benefit from the frivolous litigation,
it would be difficult to control frivolous and uncalled for litigations. In
order to curb uncalled for and frivolous litigation, the courts have to ensure
that there is no incentive or motive for uncalled for litigation. It is a
matter of common experience that court's otherwise scarce and valuable time is
consumed or more appropriately wasted in a large number of uncalled for cases.
Para 52: The main question
which arises for our consideration is whether the prevailing delay in civil
litigation can be curbed? In our considered opinion the existing system can be
drastically changed or improved if the following steps are taken by the trial
courts while dealing with the civil trials.
A. Pleadings are foundation of
the claims of parties. Civil litigation is largely based on documents. It is
the bounden duty and obligation of the trial judge to carefully scrutinize,
check and verify the pleadings and the documents filed by the parties. This
must be done immediately after civil suits are filed.
B. The Court should resort to
discovery and production of documents and interrogatories at the earliest
according to the object of the Act. If this exercise is carefully carried out,
it would focus the controversies involved in the case and help the court in
arriving at truth of the matter and doing substantial justice.
C. Imposition of actual,
realistic or proper costs and or ordering prosecution would go a long way in
controlling the tendency of introducing false pleadings and forged and fabricated
documents by the litigants. Imposition of heavy costs would also control
unnecessary adjournments by the parties. In appropriate cases the courts may
consider ordering prosecution otherwise it may not be possible to maintain
purity and sanctity of judicial proceedings.
D. The Court must adopt
realistic and pragmatic approach in granting mesne profits. The Court must
carefully keep in view the ground realities while granting mesne profits.
E. The courts should be
extremely careful and cautious in granting ex-parte ad interim injunctions or
stay orders. Ordinarily short notice should be issued to the defendants or
respondents and only after hearing concerned parties appropriate orders should
be passed.
F. Litigants who obtained
ex-parte ad interim injunction on the strength of false pleadings and forged
documents should be adequately punished. No one should be allowed to abuse the
process of the court.
G. The principle of
restitution be fully applied in a pragmatic manner in order to do real and substantial
justice.
H. Every case emanates from a
human or a commercial problem and the Court must make serious endeavour to
resolve the problem within the framework of law and in accordance with the well
settled principles of law and justice.
I. If in a given case, ex
parte injunction is granted, then the said application for grant of injunction
should be disposed of on merits, after hearing both sides as expeditiously as
may be possible on a priority basis and undue adjournments should be avoided.
J. At the time of filing of
the plaint, the trial court should prepare complete schedule and fix dates for
all the stages of the suit, right from filing of the written statement till
pronouncement of judgment and the courts should strictly adhere to the said
dates and the said time table as far as possible. If any interlocutory
application is filed then the same be disposed of in between the said dates of
hearings fixed in the said suit itself so that the date fixed for the main suit
may not be disturbed.
Para 53: According to us,
these aforementioned steps may help the courts to drastically improve the
existing system of administration of civil litigation in our Courts. No doubt,
it would take some time for the courts, litigants and the advocates to follow
the aforesaid steps, but once it is observed across the country, then
prevailing system of adjudication of civil courts is bound to improve.
Para 54: While imposing costs
we have to take into consideration pragmatic realities and be realistic what the
defendants or the respondents had to actually incur in contesting the
litigation before different courts. We have to also broadly take into
consideration the prevalent fee structure of the lawyers and other
miscellaneous expenses which have to be incurred towards drafting and filing of
the counter affidavit, miscellaneous charges towards typing, photocopying,
court fee etc.
Para 55: The other factor
which should not be forgotten while imposing costs is for how long the
defendants or respondents were compelled to contest and defend the litigation
in various courts. The appellants in the instant case have harassed the
respondents to the hilt for four decades in a totally frivolous and dishonest
litigation in various courts. The appellants have also wasted judicial time of
the various courts for the last 40 years.
Ideally, for one’s case to be disposed of at the
earliest time period, ordinarily, the case must fall within the four corners of
either of the proposition –
(a) "There are No
disputed facts", that is to say, "there is no dispute as to material
facts of the case";
(b) The Plaintiff / Petitioner
/ Complainant has no “Cause of action”, that is to say, Plaintiff / Petitioner
/ Complainant has no “Right or Reason” to adopt legal action against the
Respondent / Defendant / Opposite party;
(c) The case filed by the
Plaintiff / Petitioner / Complainant is barred by any law in force;
(d) The Court in which the case
is filed has no jurisdiction;
(e) The case is barred by law
of limitation;
(f) The case is barred by Res
Judicata;
(f) The list above, is
illustrative, and there might be many more propositions.
For the case to fall within
the four corners of aforesaid either of the propositions, the Pleadings of the
party concerned, must be so drafted, so as to separate “Material facts” from
"rest of alleged other facts and submissions", thereby making the
case based on either of the aforesaid propositions.
When material facts of the case are self
evident / unambiguously admitted / not disputed, “expressly” or by natural
inference to the undisputed facts, than by applying under, applicable legal
provisions, one may seek the immediate adjudication of his case.
The aforesaid either of
propositions may also be asserted by employing applicable legal principles and
doctrines, to the material facts of the case. Some of Legal principles and
doctrines - Admissions, Confessions, Judicial Notice of fact, Estoppel, Res
Judicata, Demurer, Issue Estoppel, Cause of action, Limitation, Rule of law,
Equality before law, Merger, Equal protection of law, Waiver, Acquiescence,
good faith, etc.
Rich jurisprudence cultivated
for about in last 62 years in the form of Binding precedents of HC (Articles
227, 235, 215) and SC (Articles 129, 141), vis-a-vis to Contempt by Judges of
Subordinate Courts (S. 16 of Contempt of Courts Act, 1971).
Wherein it is alleged by the
Plaintiff / Petitioner / Complainant
that Respondent / Defendant / Opposite party has in any way made false
statements / false declarations in his pleadings or has filed false Affidavit
or has filed a forged document; or wherein it is alleged by the Respondent /
Defendant / Opposite party that Plaintiff / Petitioner / Complainant has made a
false claim, and/or that Plaintiff / Petitioner / Complainant has made false
statements / false declarations in his pleadings or has filed false Affidavit
or has filed a forged document or has suppressed material facts in the
pleadings; Please refer following links:
Legal Prescriptions (Index)
Sentence of Caution
Legal issues !!
If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts., including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR, deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders of the Courts / Tribunals, among others.
or
If you are looking for draft of any legal proceeding; or if you want to know the nature and attribute of any legal proceeding; or if you want to know the procedure followed in any legal proceeding; or if you want to know the grounds on which any order of the court / tribunal is challenged; or if you are facing any frivolous litigation.
Tap “Lawyer” in your Cell to explore.
Thank you.
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