How to “take away” whims & fancies /
arbitrariness, etc. from the decisions of the Court
Issue / finding based decisions: Every decision
of court, as far as possible, must be based on record of findings of facts; and
record of finding is always is in respect of an issue which naturally arises
having regard to relief claimed. Therefore, every decision must answer a “Principal
Issue” which arises before the Court.
Issues are crux
of any legal proceeding, and they arose in every stage of litigation, and in every
litigation, be it Writs, Contempt Petitions, Arbitration Petitions, Criminal
Petitions Consumer complaints, and so one, notwithstanding the Courts are not
formally framing them. In C.V. Joshi versus Elphinstone Spinning Mills,
reported in 2001 (Supp) Bom CR (2) 57, the Bombay high Court observed that even
in execution proceedings, the issues comes into play, though it is not
technically necessary to frame them.
The nature of
issue which arises in a particular legal proceeding would depend upon the grounds
on which the Reliefs are claimed. Like for example, where a Suit is filed for possession
of immovable property, on the ground that the Plaintiff is the owner and has
title to the said immovable property; the principal issue before the Court is “who
is the owner and has title to the said immovable property”. Similarly, where a
Suit is filed for possession of immovable property, on the ground that the
Plaintiff was in possession of the Suit property, and without due process, was dispossessed,
the principal issue before the Court is “who was in actual or juridical possession
of the Suit property at the time of dispossession”.
Issues
are like asking or addressing the right question, for the court to deal with;
addressing the principal contentions between the parties; and once that is decided,
the other supplementary issues, either don’t survive, or if survive, they may
be addressed with greater clarity.
How Finding of fact is “arrived” at: 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, having
regard to the Reliefs claimed – (a) would examine the (legality) of facts
alleged, (b) would examine the (legality) of stand of the adversary (c) would
examine the materials and the evidences which are placed before him in support
of the facts alleged (d) would apply the applicable laws (including precedents)
to the facts of the case; and (e) would record 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.
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.
a)
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].
b)
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.
c)
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.
d)
And
whereas the decisions of the Courts / Tribunals / Authorities are subject to
Appeal / judicial review, the Appellate Forum / Court / Writ Court in judicial
Review jurisdiction, cannot exercise their powers of reviewing the impugned
Order, unless they are duly informed of the reasons / consideration reflected
in the impugned Order.
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 –
a)
The
nature and gravity of the accusation and the exact role of the accused must be
properly comprehended before arrest is made;
b)
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;
c)
The
possibility of the applicant to flee from justice;
d)
The
possibility of the accused's likelihood to repeat similar or the other
offences.
e)
Where
the accusations have been made only with the object of injuring or humiliating
the applicant by arresting him or her.
f)
Impact
of grant of anticipatory bail particularly in cases of large magnitude affecting
a very large number of people.
g)
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;
h)
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;
i)
The
Court to consider reasonable apprehension of tampering of the witness or
apprehension of threat to the complainant;
j)
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.
What constitute Material facts of the
case: the answer lies in Cause of action and in “Facts in issue”: 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 addition to above, a
fact is a material fact, which if it is proved, (whether
solely or in connection with other facts), the inference would be drawn – (a)
as to 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.
And, in so far as
adversary is concerned, a fact is a material fact, which if it is proved, (whether solely
or in connection with other facts), the inference would be drawn – (a) as to
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” in Evidence
Act, 1872]
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 –
a)
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;
b)
Misunderstanding
as to nature of controversy: Where there is complete misreading /
misunderstanding as to material proposition of facts advanced;
c)
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;
d)
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;
e)
Impugned Order
contrary to findings:
Where the impugned Order is contrary to findings recorded by the Court;
f)
Finding based on
no evidence:
Where there is no evidence on record to support the finding which is recorded
in the impugned Order;
g)
Findings without
reasons:
Where the impugned Order is based on a finding which is recorded without
assigning any appreciable / cogent reason;
h)
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?
State Of Punjab
Versus Bhag Singh 2004 (1) SCC 547
It was a case where the High Court
rejected “Leave to Appeal” contemplated u/s 378(3) of CrPC, 1973,, with a
cryptic order “No merit. Dismissed”, without assigning reasons.
According to the appellant it was
imperative on the High Court to indicate reasons as to why the prayer for grant
of leave was found untenable. In the absence of any such reasons the order of
the High Court is indefensible.
The observations of the Apex Court: Para 5: The absence of reasons has rendered the High Court
order not sustainable. Similar view was expressed in State of Uttar Pradesh
V/s. Battan and Ors. (2001 (10) SCC 607). About two decades back in State of
Maharashtra V/s. Vithal Rao Pritirao Chawan (AIR 1982 SC 1215) the desirability
of a speaking order while dealing with an application for grant of leave was
highlighted. The requirement of indicating reasons in such cases has been
judicially recognized as imperative. The view was reiterated in Jawahar Lai
Singh V/s. Naresh Singh and Ors. (1987 (2) SCC 222). Judicial discipline to
abide by declaration of law by this Court, cannot be forsaken, under any
pretext by any authority or Court, be it even the Highest Court in a State,
oblivious to Art. 141 of the Constitution of India, 1950 (in short the
'Constitution').
Para 6: Even in respect of administrative orders Lord
Denning M.R. in Breen V/s. Amalgamated Engineering Union (1971 (1) All E.R.
1148) observed "The giving of reasons is one of the fundamentals of good
administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974
LCR 120) it was observed:
"Failure to give reasons amounts to denial of
justice". Reasons are live links between the mind of the decision taker to
the controversy in question and the decision or conclusion arrived at".
Reasons substitute subjectivity by objectivity. The
emphasis on recording reasons is that if the decision reveals the
"inscrutable face of the sphinx", it can, by its silence, render it
virtually impossible for the Courts to perform their appellate function or
exercise the power of judicial review in adjudging the validity of the
decision. Right to reason is an indispensable part of a sound judicial system,
reasons at least sufficient to indicate an application of mind to the matter
before Court. Another rationale is that the affected party can know why the
decision has gone against him. One of the salutary requirements of natural
justice is spelling out reasons for the order made, in other words, a speaking
out. The "inscrutable face of a sphinx" is ordinarily incongruous
with a judicial or quasi judicial performance.
In the aforesaid
ruling, the Apex Court have not only emphasized upon necessary to record
reasons, but have also reiterated that Authority, be the judicial, quasi
judicial or administrative, cannot ignore the mandate of Article 141 of the
Constitution of India, which says that law declared by Supreme Court is binding
on all Authorities. The Apex Court also equated “absence of reasons” with
“frustration of natural justice requirements”.
It is not
exaggeration if I were to say that judgments cited before the Court / Tribunals
/ Administrative Authorities, are either not dealt with in their orders; or are
summarily rejected, with a standard rejection argument, “the facts are
different in the present case, and therefore the judgment cited doesn’t help
the party advancing it.
In the aforesaid
backdrop, I would suggest that in every proceeding whether before judicial,
quasi judicial or administrative Authority, the aforesaid judgment of Bhag
Singh and judgment reported in (2010) 13 SCC 427 may be cited, with a request
that the concerned Authority pass a reasoned order; and where the concerned
authority passes orders without recording reasons for their findings or for
their orders, the contempt proceedings may also be initiated against them.
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.
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, citing judgments of (a) Bhag Singh, (b) judgment reported in
(2010) 13 SCC 427 stated hereinbefore, and (c) judgment reported at (1985) 2 SCC 670, Para 13.
Para 13: The final
submission of Shri Ramamurthi was that several other questions were raised in
the writ petition before the High court but they were not considered. We attach
no significance to this submission. It is not unusual for parties and counsel
to raise innumerable grounds in the petitions and memoranda of appeal etc.,
but, later, confine themselves, in the course of argument to a few only of
those grounds, obviously because the rest of the grounds are considered even by
them to be untenable. No party or counsel is thereafter entitled to make a
grievance that the grounds not argued were not considered. If indeed any ground
which was argued was not considered it should be open to the party aggrieved to
draw the attention of the court making the order to it by filing a proper
application for review or clarification. The time of the superior courts is not
to be wasted in enquiring into the question whether a certain ground to which
no reference is found in the Judgement of the subordinate court was argued
before that court or not?
Recall jurisdiction:
Review jurisdiction
Some Relevant Rulings:
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.
Therefore, in any legal proceedings, you may summarize your
Arguments / Written submission in the format suggested hereinafter. This will
significantly assist the presiding Judge / Authority to pass “Order in Order”.
Record of Findings
The readers may continue to read further
–
The other grounds, broadly, which are available to
challenge any Order, are –
(A) Jurisdictional
errors
i)
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
ii)
Mistake of jurisdiction: That the condition precedents, for the exercise of
jurisdiction, were not complied with; or
iii) 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;
iv)
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:
i)
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.
ii)
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
i)
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;
ii)
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;
iii)
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:
i)
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;
ii)
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;
iii)
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.
iv)
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.
v)
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;
vi)
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
i)
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
i)
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 ……..;
ii)
That
the allegations made in the FIR / Complaint does not constitute the offence
alleged of;
iii)
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
1.
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.
2.
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.
3.
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.
4.
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.
5.
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.
6.
The
judgment / decision should be on the basis of evidence on record and in
accordance with law.
7.
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.
8.
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.
9.
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.
10.
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.
11. 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.
12.
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.
13.
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."
14.
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.
15. 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.
e)
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].
f)
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.
g)
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.
h)
And
whereas the decisions of the Courts / Tribunals / Authorities are subject to
Appeal / judicial review, the Appellate Forum / Court / Writ Court in judicial
Review jurisdiction, cannot exercise their powers of reviewing the impugned
Order, unless they are duly informed of the reasons / consideration reflected
in the impugned Order.
i)
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 –
1.
Orders
passed in Civil Suit proceedings;
2.
Orders
passed in Criminal proceedings;
3.
Orders
passed by Special Courts and Tribunals;
4.
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 –
a)
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
b)
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 –
a)
to
entertain the grounds of challenge to the Order complained of;
b)
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
c)
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 /
1.
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.
2.
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.
3.
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
4.
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.
5.
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.
6.
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.
7.
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.
8.
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.
9.
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.
10.
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.
11.
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 –
1.
Registering
Complaint before Police authorities u/s 154 of CrPC, 1973;
2.
Filing
Private Criminal Complaint u/s 200 of CrPC, 1973 before competent Magistrates
Court;
3.
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.
1.
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.
2.
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.
3.
Any
party further aggrieved by the Order passed in Application u/s 482, may then
invoke the SLP jurisdiction of the Apex Court.
4.
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.
5.
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.
6.
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.
7.
Any
party further aggrieved by the Order passed in Application u/s 482, may then
invoke the SLP jurisdiction of the Apex Court.
8.
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.
9.
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.
10.
If
the trial results in acquittal of the Accused, the Complainant may prefer an
Appeal u/s 378 of CrPC, before concerned High Court.
11.
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
1.
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;
2.
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.
3.
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.
Sandeep Jalan
Advocate
Mumbai
Legal issues !!
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