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/
Comments