Orders are passed by Civil Courts, Criminal Courts, various
Statutory Tribunals, and Special Courts, Quasi judicial and Administrative
bodies. In this write up, I am excited to share an
Apex Court ruling which in my view takes away the whimsical “discretion” of the
judges in deciding cases, and puts obligation upon judges to record findings in
support of their decisions.
Apex Court decision:
The Apex Court in a case before it [(2006) 9 SCC 222], set aside the Order
passed by the High Court on the grounds that the High Court failed to record
finding in support of its decision. It was a case where the Defendant in a Suit
gave undertaking to the trial Court that Defendants will not interfere with the
possession of the Plaintiff’s land. The Suit was disposed of on the basis of
above undertaking. Thereafter, the Plaintiff moved Execution Application under
O.21 R.32 before the trial Court alleging that Defendants have constructed some
structure on the Suit land. The trial Court dismissed said Execution
Application. The Plaintiff challenged trial Court’s Order before High Court.
The High Court directed the Defendants to clear the encroachment effected by
them on the suit land. The Apex Court set aside the Order of the High Court on
the grounds that, the High Court, before directing the Defendants to “clear the
encroachment”, should have recorded the findings that “Defendants had entered
upon the suit land and put up construction subsequent to the undertaking given
to the trial court”.
Finding of fact on principal Issue:
Every decision / order of the court, be interim or final, must be based on finding
of facts recorded by it, whether prima facie or conclusive. The finding of fact
is always in respect of an issue which naturally arises having regard to principal
relief claimed. Issues arise from cause of action. Among other attributes, cause of action means, the bundle of facts which are necessary
(sufficient) to prove by the Party claiming certain reliefs from the court. These bundle of facts constitute “material facts”;
and when these material facts are disputed by the opposite party, the “Issue” emerges
/ arises.
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. A fact is a material fact, which if it is proved, the
inference would be drawn as to the existence / non existence of the right which
is asserted, or of the liability which is attributed against.
How Finding of fact is “arrived” at:
The “finding of fact” 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 reasoned finding as to the existence or
the non existence of the facts alleged.
Finding
of facts is appreciation of facts and evidences, drawing natural and logical and
legal 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]. Appreciation of facts and evidence is also an exercise wherein the
existence of certain facts, provokes or persuades the decision maker to reach a
certain conclusion.
The Illustration: To illustrate the proposition of “Findings”, agitated hereinabove,
therefore, in a Writ Petition, the High Court, before refusing to exercise its
writ jurisdiction, depending upon the nature of facts alleged, must record a
prima facie finding that, having regard to the facts on record, (a) fundamental
rights of the Petitioners are not infringed; and / or (b) principles of natural
justice have not been infringed; or (c) the Authority / Subordinate court /
Tribunals have acted within their respective jurisdiction. Similarly, in an
Application for Anticipatory Bail, the Session Judge / High Court, before
rejecting Anticipatory Bail must record a prima facie finding that, having regard
to the facts on record, (a) the Applicant is not cooperating in the
investigation; (b) custodial interrogation of the Accused is essential; or (c)
There is a apprehension of tampering of the witness by
the Applicant; or (d) There is a possibility of the Applicant to flee from
justice; or that there is a possibility of the Accused's likelihood to repeat
similar or the other offences.
Taking away the arbitrariness:
The necessity of recording of finding on material facts, would take away the
arbitrary and whimsical discretion of the Court, for, they have to record reasoned
findings, based on facts which are explicitly placed on record. Any such
arbitrary / whimsical Order of the Court may be challenged on the grounds that
(a) finding which is recorded is without considering the vital relevant facts /
evidences, placed on record; or (b) impugned Order was passed without recording
a finding on material fact, which has direct nexus with the controversy at
hand; or (c) impugned Order is based on a finding which is recorded whilst
taking into consideration irrelevant facts / evidences; or (d) impugned Order
is contrary to findings recorded by the Court; or (e) there is no evidence on
record to support the finding which is recorded in the impugned Order; (f)
impugned Order is based on a finding which is recorded without assigning any
appreciable / cogent reason; (g) reasons employed to arrive at a finding, in
the impugned Order are vague / irrelevant / irrational / unheard in law.
Another infirmity:
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.
What are requisite elements of Orders
of the Court: Therefore, the Order of the Court may
contain the following – (a) starting with nature of proceeding filed / the
nature of jurisdiction invoked; (b) brief introduction of parties; (c) the
principal relief claimed; (d) to claim this Relief – the Petitioner is obliged
to prove “facts constituting the cause of action”; (e) in this backdrop, the
Petitioners comes out with these set of facts and documentary evidence; (f) the
stand of the adversary is – and in support of the said stand the adversary has
produced these materials and evidence; (g) the principal issue therefore arises
is; (g) the applicable law to the facts of the case are; (h) the judgments
cited; (i) appreciation of evidence and material on record; (j) reasoned
finding of fact; (k) grant or the denial of Relief.
What are the attributes of any Order
passed by the Court: (a) First of all, the Court / Tribunal /
Quasi judicial authority, must have jurisdiction to entertain the nature of
dispute presented to it. (b) Court / Tribunal / Quasi judicial authority,
should not have any personal / pecuniary interest in the subject matter of the
dispute presented before it; (c) Judicial approach towards the dispute, i.e. to
say, the authority deals with the subject in a fair, reasonable and objective
manner and that its decision is not actuated by any extraneous consideration. (d) Strict adherence to principles of
natural justice, i.e. to say, all the parties must be afforded due opportunity
to present their case. (e) The court/authority deciding the matter must apply
its mind to the attendant facts and circumstances. Application of mind is best
demonstrated by recording reasons in support of the decision. The requirement
of providing reasons obliges the judge to respond to the parties' submissions
and to specify the points that justify the decision. The parties should be
convinced that their case has been properly considered and decided. 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. 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.
Sandeep Jalan
Advocate
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.
https://www.litigationplatform.com/
Thank you.
Comments
solicitor will near me