A
broad approach to drafting of any Application / Petition / Complaint may be
undertaken in three chronological “Heads” –
1.
Reliefs prayed for /
claimed;
2.
Grounds for Reliefs
prayed for / claimed; (both factual and legal);
3.
Narration of facts
substantiating the said grounds.
Further, there may be narration of such facts in
the beginning of the draft, which would lay foundation for
“material facts of the case”. Materiality of facts would always mean those
“facts which are very material to the relief claimed”.
Grounds
for Reliefs prayed for / claimed implies (a) the essence / conclusion of
material facts or proposition of facts; and (b) other legal provisions which
supports the reliefs prayed for / claimed.
1. AND,
in every case before the Court, it is of utmost importance to “fence the case”
in four corners, i.e. to say, the controversy which is to be dwelled upon must
be duly and clearly set out. In my limited exposure to court hearings, and,
reading of various judgments, I have observed that quite often, legitimate
reliefs are denied on consideration of irrelevant facts, and, reliefs are given
on consideration of irrelevant facts.
2. Relevancy
of a particular fact or set of facts to concerned nature of litigation has huge
importance in our jurisprudence.
3. If
we look at the mandate of section 101 of Evidence Act, it says that, “facts
asserted” by the “Plaintiff” must prove their existence, to claim judgment in
respect of any right asserted or liability attributed.
4. S.
5 of Evidence Act says that evidence may only be given of relevant facts and of
no others.
5. What
could be relevant facts to the controversy would always depend upon the ingredients
of the right claimed or ingredients of the liability attributed, or to say the principal
or main reliefs prayed or claimed in the Petition or complaint. But the difficulty
may always arise to decide the “relevancy of facts”, to a controversy.
6. The
definition of “Facts in issue” perhaps furnishes the classic explanation to decide,
as to what could be relevant facts to a controversy. I reproduce the definition
–
"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. And the test is –
Fact
asserted
|
The Test of Relevancy / Materiality of
fact asserted
|
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 non-existence
of the (ingredient) of the right or whole right itself, which is asserted;
If proved (whether
solely or in connection with other facts), the inference would be drawn –
(a) of the existence of
the (ingredient) of the liability or the whole liability, which is
attributed; or
(b) of the non-existence
of the (ingredient) of liability or the whole liability, which is attributed;
If proved (whether
solely or in connection with other facts), the inference would be drawn –
(a) of the existence of
the (ingredient) of the disability or the whole disability itself, which is claimed;
or
(b) of the non-existence
of the (ingredient) of the disability or the whole disability itself, which
is claimed.
|
7. Therefore,
in my view, in every pleading, the Petitioner or the Suitor, must set out, with
due emphasize, that if the “following facts” are “proved”, the Petitioner /
Suitor would be entitled for the judgment in his favour; and the adversary may
argue that if the “following facts” are “proved”, the case of the Petitioner /
Suitor be dismissed.
8. In
the entire aforesaid discussion, however what has been left out is to
understand and appreciate what is a “fact”. The Evidence Act, does defined this
very important term.
S.3: "Fact": "Fact"
means and includes
(1) any thing, state of things, or relation
of things, capable of being perceived by the senses;
(2) any mental condition of which
any person is conscious.
Illustrations
(a) That there are certain objects arranged
in a certain order in a certain place, is a fact.
(b) That a man heard or saw
something, is a fact.
(c) That a man said certain
words, is a fact.
(d) That a man holds a certain opinion, has a
certain intention, acts in good faith, or fraudulently, or uses a particular
word in a particular sense, or is or was at a specified time conscious of a
particular sensation, is a fact.
(e) That a man has a certain
reputation, is a fact.
9.
The
illustration of “Fact” are –
a)
Admission of facts
b)
Confession of facts
c)
Certain conduct of persons
d) Certain
behaviour of persons
e)
Certain knowledge of fact of persons
f)
Certain intention of persons
g)
Certain acts or omissions of persons
h)
Occurrence or happening of things, events, natural
course of events
i)
Existence of certain motives of a person
j)
Opinion of Experts
10. I
have observed that in every other case, parties make general allegations of
negligence, fraud etc, without specifying the substance of negligence or fraud.
These kinds of assertion of facts of mere allegations do not constitute “fact”.
A “Fact” is something which is independently capable of being proved, which is
capable of being identified / perceived by our senses.
Sandeep Jalan
Advocate.
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