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Testing Orders of the Court, etc, at the benchmark of Jurisdictions and Findings


Whilst various grounds are available under the law, the Orders of the Court / Tribunals / Authorities, may be tested at the touchstone of two broad benchmarks – one – the Jurisdictional errors and second – errors in findings on facts. First, let us look at Jurisdictional benchmarks. Jurisdiction essentially means legal powers to act.

1.    The Jurisdiction starts with proper constitution of the Members of the Tribunal / Court / Authority.

Therefore, the Order of the Court, etc must emanate from a validly constituted Tribunal. One of the important aspect of constitution of Tribunal is, the judge should not have a pecuniary or personal interest in the lis (Litigation) which is presented before it for adjudication, nor should have a bias in favour or against any of the litigant who are before it for decision on their lis. The second important aspect is the statutory compliance to its constitution, if there is any.

2.    Second critical aspect of jurisdiction is the territorial, pecuniary and subject matter jurisdiction. The Court /Tribunal / Administrative / Statutory Authority, deciding the lis must possess all the three aspects of jurisdiction.

The sin of “usurpation of jurisdiction” sometimes emanates from erroneous assumption of jurisdiction, which otherwise was lacking in the Court / Tribunal / Authority, although it assumes that it has it.

The issue of Limitation is also an jurisdictional issue, and it is the obligation of the Court to see that any lis presented before it, is not a stale claim.

3.    Third critical aspect of jurisdiction is existence of “Jurisdictional facts” or to say, “condition precedent facts” / “facts disclosing Cause of action”, that is to say, the Courts / Tribunals / Authorities despite possessing all other jurisdictional attributes, still may not have a jurisdiction to enter upon a lis unless certain facts exists, or at least claims to exist, so as to enable any Court / Tribunal / Authority to exercise their powers and pass Orders.

The Jurisdictional errors leading to “wanting of Jurisdictional facts” would also include the class of cases where, whilst passing of the Order, the (essential) procedure was not complied with. This is because, the factual foundation qua the essential procedure is “absent” whilst in the exercise of powers and passing of Orders. This will also include class of cases where there is frustration of principles of natural justice in passing of the Order, for, quite often, before passing of an adverse Order, obligation to afford reasonable opportunity of hearing to the affected party, are essentially ingrained in the procedural compliance. These instances will fall in jurisdictional error, also because the Courts / Authorities can assume jurisdiction once the procedure established under the law, is complied with.

The Jurisdictional errors leading to “wanting of Jurisdictional facts” would also include the class of cases where the Courts / Authorities, etc, have acted without complying with the essential requirements of law (apart from procedural law), which are aptly spelled out in the relevant provision of law, and which forms the conditions precedent for the exercise of powers. This is because, again the factual foundation qua the essential compliance to applicable law is “absent” whilst in the exercise of powers and passing of Orders. This will also include class of cases where there is patent disregard to applicable precedents, for, these precedents forms the exposition of law, and are the declaration of laws by our Constitutional Courts.

Thus, we come to end of jurisdictional errors.

Once the Jurisdiction is properly assumed, the Courts / Authorities enter upon the “facts of the case”, and decide the lis / issue, on such material facts advanced by the parties (essentially on such facts which naturally arises in the light of nature of legal proceeding and having regard to Reliefs claimed), by applying the applicable laws and precedents.

In the process of recording finding on facts, the Court also invariably, records finding on position of Law, as the Court first reiterate the applicable law and with the aid of that position of Law in force, the findings on material facts are arrived at.

And therefore the second benchmark is, testing Orders at the altar of “erroneous findings on facts”.

In my view, the errors of “findings on facts” may again be divided into two classes. One – Evidence based errors and Non evidence based errors.


First let us explore Evidence based errors.

Evidence is the rock solid pillar on which any Order stands. It is incomprehensible if any Order can sustain without supporting Evidence. An assertion of a fact is a frivolous plea, if the same is not supported by Evidence; and any such pleas deserves to be rejected at the outset.

Evidence is, privy witnesses / material / document, what you advance in support of assertion of a material fact. Evidence is also an evaluation of material and documents placed on record, to arrive at a finding, as to existence or the non existence of the fact asserted.

The following infirmities in an Order may be tagged as Evidence based errors / infirmities.

a)    Findings on material / principal fact arrived at without there being any material / Evidence on record.

b)    Findings on material / principal fact arrived at ignoring vital evidence/ admissions, available on record.

c)    Findings on material / principal fact arrived at in consideration of irrelevant facts and evidence.

d)    Finding on material / Principal fact arrived at by grossly misevaluating the material and evidence available on record.

e)    Absence of finding on a material / principal fact, ignoring the facts and the evidences available on record.

f)     Where the Order under challenge, is contrary to findings on facts and evidences, recorded by the Court.

Among other errors, the errors spelled out at Clause (e) above is the most common and mischievous; and is being discussed at some length hereinafter.

Now coming to second part of errors on findings on facts, it may include the following:

a)    Where the finding on fact is recorded in violation of specific provision of law, which has immediate bearing on the controversy at hand.

b)    Where the finding on fact is recorded overlooking the binding precedent / Judgments of superior Court, placed on record.

c)    Fraud upon Court, etc., by agitating incorrect / false facts or by suppressing material facts; and persuades the Court to believe in a false or incorrect proposition of facts or law; or where the Court itself decides the case on erroneous assumption of material facts or law.


Again, the “Evidence based errors / infirmities, may further be categorized as trial based evidentiary errors / infirmities. These may include the

a)    Misplaced burden of proof: That the issues were not framed correctly, due to which / or otherwise, the burden of proof in respect of proving of a fact was placed upon the wrong party;

b)    Unproved facts: That the finding of a material fact is recorded on the strength of unproved facts;

c)    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.

d)    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.

e)    Breach of principle of exclusion of oral evidence: The finding of a material fact is based on a oral evidence, in breach of express mandate of sections 91 and 92 of Evidence Act, 1872;

f)     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;

g)    Appreciation of evidence / material on record in breach of established principles laid down in various rulings of Higher Courts.


Certain jurisdictional errors may be committed whilst lawfully exercising the jurisdiction. Like for example,

a)    Excess of jurisdiction: Excess of jurisdiction would imply such actions / Order where the Court / Authorities etc. although have lawfully assumed and exercised their vested powers, but in the course of exercise of their powers, they travelled beyond their powers, and have done acts or have passed Orders which they were not empowered under the law to act or to pass;

b)    Failure of jurisdiction: Failure of jurisdiction would include such cases where the Courts / Authorities, in a given situation, have neglected / failed to exercise the discretion / powers conferred upon them. If a law confers a public Officer with authority to do an act in a specified set of circumstances, it is imperative upon them to exercise their authority in a manner appropriate to the case, when a party interested and having a right to apply, moves in that behalf, and circumstances for exercise of powers and authority are shown to exist. [AIR 1971 SC 33]

However, the fine distinction between the jurisdictional errors and non jurisdictional errors, must be clearly understood. Jurisdictional errors are those errors which are committed whilst “entering into” the province of the exercise of powers. The non jurisdictional errors are those errors which are committed during the course of exercise of powers, amidst the lawful invocation and lawful assumption of powers.


The errors of “findings on facts”, are much more complex than jurisdictional errors. To better appreciate this benchmark, it is necessary to outline the broad decision making process.

Broadly, the decision making is a process (excluding criminal trials) but including Criminal Applications like Bail Applications, wherein, having regard to the principal Reliefs claimed, the presiding Judge –
a)    examine the (legality) of facts alleged,
b)    examine the (legality) of stand of the adversary,
c)    examine the materials and the evidences which are placed before him in support of the facts alleged by both the sides;
d)    would record his reasoned finding (prima facie or conclusive) as to the existence or the non existence of the facts alleged.
e)    followed by his decision / Order


      i.        The process of recording finding on facts is, having regard to the applicable laws and precedents, the testing of facts and evidences, advanced by both the litigating parties.

     ii.  ii. Once the finding on facts are recorded, the “Logical Inferences” are drawn by the Court.

    iii.        The process of drawing of Logical inferences, in essence is, by applying common sense and common man prudence standards, drawing natural, logical and legal inferences and outcomes, which should necessarily flow from established facts [the established 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 and evidence, provokes or persuades the decision maker to reach a certain conclusion.

   iv.  Once findings on material facts are arrived at, and the inferences are drawn from such findings, the decision follows, either granting the reliefs claimed for, or the denial of.

However, what is witnessed in many Orders of the Courts is, “glaring absence of finding on material facts”, that is to say, finding on the material / principal fact is not recorded at all, overlooking the palpable materials and the evidences available on record. The material or the principal fact is the one, which naturally arises in view of the nature of legal proceedings.

In wealth of judgments, the Apex Court and High Courts have insisted upon recording of reasons whilst arriving at findings of facts and law. In a case (AIR 2011 SCW 5486) before it, the Apex Court have observed to say that Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning, on law and facts.

Therefore, IF it is contempt of the Court, if reasoned findings are not recorded, then it is regressive and aggravated contempt, to not to record findings at all.

Can we really compel the Courts to record finding of fact in their decisions? At least the Apex Court in a case before it [(2006) 9 SCC 222], have said Yes. The Apex Court have held that before subjecting a party to the adverse decision, adverse findings must be recorded against it.

The Apex Court in the aforesaid case, have 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”.

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. In this backdrop, 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”.

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 on the grounds of availability of alternate remedy, and 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. This is because, there are ample judgments of Apex Court, wherein it is held that, on the existence of any of the aforesaid grounds in the case, notwithstanding availability of alternative remedy, the High Courts must exercise their Writ Jurisdiction under Article 226 of the Constitution of India. [AIR 1970 SC 645; AIR 2010 SCW 7184; AIR 1999 SC 22; AIR 2012 SCW 616; AIR 2003 SC 2120; AIR 2005 SC 3936; AIR 1958 SC 86 (Constitution Bench Judg); (2011) 5 SCC 697; AIR 1969 SC 556; (2015) 6 All MR 35 (BHC)]

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.

The necessity of recording of finding on material principal facts, would take away the arbitrary and whimsical discretion of the Courts, for, they have to record findings, based on facts and evidences which are explicitly placed on record. And when the facts / evidence are seen large, the Courts (may) abstain from recording illogical findings, which are contrary to facts / evidence placed on record, and seen large.

The Administrative decisions are also tested at the touchstone of Wednesbury principle, whence the Impugned decision defies logic, and is such which no person / decision-maker, on the material before him and within the framework of the law, would ever pass such Order / decision; the impugned Order / action would shocks the conscience of the Court.

To summarize the discussion, the fatal / fundamental errors in Orders and Judgments arises due to (a) findings on material facts are not recorded at all, or irrelevant facts are considered in arriving at findings on material facts; and; (b) Incorrect application of Law whilst arriving on findings qua the material fact, which may be the ingredient of the offence, or the civil wrong.


The broad Principles of appreciating evidence as to a particular fact:
1.    No mathematical precision in proving of a fact;
2.    Prudent person satisfaction test;
3.    Whether fact asserted is rebutted in cross;
4.    Evidence is to be weighed and not counted – section 118 Evidence Act
5.    Irrelevant evidence
6.    Inadmissible evidence like privilege communication, etc.
7.    Bare assertion / allegations
8.    Burden of proof / misplaced burden of proof / section 106 burden of proof
9.    Suppression of material fact which has had direct bearing on the decision of the Court


The Orders of the Court – findings as to –

1.    Its own jurisdiction / conditions precedent for exercise of it; and the Locus of the Petitioner:
2.    Within Limitation, if law of limitation is applicable:
3.    Material facts asserted by Claimant (Section 101 Evidence Act) whilst dealing with all conceivable defenses
4.    False claims / frivolous defenses:
5.    False statements / evidence
6.    Costs




How to persuade the Ld. Judge / Authority to record Reasoned finding of fact, in their Orders. By filing brief written Arguments / submissions.





Sandeep Jalan
Advocate
https://www.litigationplatform.com/

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