Common Law

1.  Order XIV of CPC, 1908, deals with Issues. Sub Rule (4) of Rule 1 of Order XIV, says: Issues are of two kinds: (a) Issues of Fact; (b) Issues of Law. Don’t know who is the genius who has formulated this third term: mixed question of law and fact. 2.  This third category of “mixed question of fact and law”, actually doesn’t exist, and is thoroughly misconceived. The Courts, it is observed, are quite reluctant in deciding the legal proceedings, at the threshold, ordinarily on the grounds that the “Plea” agitated is a mixed question of law and fact. Let us try to comprehend the vagueness of this expression. 3.  A fact is composed of Law. A fact can never be looked upon in isolation to Law. That is to say, an assertion of a fact must be in consonance to the mandate of Law; and a factual assertion must derives its legitimacy from Law itself. 4.  Whence one say that a plea / assertion of a fact raises a mixed question of law and fact, he / she appears to be saying that...

Any Litigation hinges on Facts and Facts alleged are require to be proved. A fact is proved by Evidence. Evidence is that which makes the fact asserted - clear and evident, demonstrative and established. The word evidence in its relation to law includes all the legal means, exclusive of mere arguments which tend to prove or disprove any fact, the truth of which is submitted for judicial investigation. Facts are state of things such as events, circumstances, acts and omissions, capable of being perceived by the senses; state of mind, i.e. intentions of dishonesty, fraudulently; negligence; ill will etc. or of good faith; state of law, and such forth. According to Section 3 of Evidence Act 1872, Evidence means and includes  all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry (oral evidence; and   all documents including electronic records produced for the inspection of the Court (documentary evid...

“The Petitioners have been able to make out a strong prima facie Case”, said the Court; or, “the Respondents have been able to show reasonable defense or the existence of a dispute”. We do find such observations of Courts at the stage of Admissions of matters, like in Writ jurisdiction, or during applications for urgent interim reliefs in Suit proceedings, hearings in Summons for Judgment in Summary Suits, and qua “existence of dispute”, u/s 8(2)(a) of the Insolvency and Bankruptcy Code, 2016. These expressions assumes critical significance, because, based on the legal import of these expressions, the Courts ventures to grant decisive interim reliefs at interim stage of the litigation; and in fact, also finally decide the lis, under various jurisdictions. The Courts in such jurisdictions, endeavour to strike a delicate balance between two rival and elementary legal principles: (a) a party must have full opportunity to defend the allegation made against it, before subjecting it to...