Pre-trial, Disclosures and Other Applicable Rules

Yaman Kumar


01/12/2017  

PRE-TRIAL CONDUCT

In pre-trial hearing parties to the dispute and their lawyers hold a pre-schedule meeting before the trial begins in the presence of judge, or a magistrate or a judicial officer who possesses fewer judicial powers than a judge.

In India, the system of pre-trial hearing is not clearly celebrated as a distinctive feature of the judicial process, although both the Civil Procedure Code and Criminal Procedure Code contain certain provisions that can be utilized for this purpose.

The Law Commission has rejected the proposal for pre-trial conferences in the Fourteenth Report. It observed that conditions in our country are not yet ripe for the introduction of such an innovation. Although, government is seeking to speed up disposal of cases by introducing the system of ‘pre-trial hearings’ on the lines of the UK and the US.

DISCLOSURES

  1. Disclosure refers to that juncture of the litigation process when each party is required to disclose the documents that are relevant to the issues in dispute to the other party. Under Civil Procedure Code, a party by the way of discovery is enabled to obtain material facts or information in the form of documents from the other party.
  2. An application for discovery of documents may be made to the court and the court may direct the other party to the suit to disclose the documents requested by the other side in case such document is in the possession of the opposite party. However, such a discovery shall not be ordered if the court is of the opinion that it is not necessary either for disposing of the suit or for saving costs.
  3. The process of the discovery of documents is made after the examination of parties in three stages:
    1. the disclosure in writing by one party to the other of all the documents which he has in his possession;
    2. the inspection of the documents disclosed, other than those for which privilege from or other objection to production is properly claimed or raised: and
    3. the production of the documents disclosed either for inspection by the opposite party or to the court.
  4. The court has the power to make an order, at any time during the pendency of any civil proceedings, where it deems appropriate, production of any document in the possession or power of any party to such proceedings.
  5. While it must be noted that an arbitral tribunal constituted under Arbitration & Conciliation Act, 1996, is not bound by the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872, however, in practice, the rules of document disclosure followed in arbitration proceedings remain largely similar to those applied in civil proceedings. However, it is significant that under the Arbitration Act, parties are free to decide the procedure to be followed by the arbitral tribunal and the tribunal may conduct the proceedings in a manner it deems fit on a case to case basis.
  6. Whereas, when conciliation proceedings are conducted under the Arbitration & Conciliation Act, 1996, the conciliator and the parties are required to keep and maintain secrecy concerning all matters relating to the conciliation proceedings or including any settlement agreement apart from where its disclosure is necessary for purpose of implementation and enforcement of any order.

OTHER APPLICABLE RULES
In practice, the Courts in India in their respective jurisdictions, in the form of notifications, circulars, handbooks, etc. issue rules governing litigation procedures applicable to advocates and courts all over India.

Awards and Remedies in Civil Suits

Yaman Kumar


01/12/2017  

DAMAGES

The term damages may be defined as the monetary compensation which is payable by the defaulting party to the aggrieved party for the loss suffered by him. It can be granted by the Civil Courts as well as by Arbitral Tribunals where parties agreed to submit their disputes to arbitration. The primary aim of damages is to compensate the aggrieved party and to place him in the same position which he would have occupied had the breach of contract not occurred.

A contracting party who has suffered loss due to the breach of contract can file a suit in a Civil Court or pray for an award from the Arbitral Tribunal seeking damages against the defaulting party under the applicable provisions of law.

Kinds of damages recognised under Indian laws are:

  1. Compensatory Damages – There are two categories of compensatory damages. The first category, General Damages which include damages that arise from breach of contract. The second categories called Special Damages, which arise due to the special circumstances foreseeable.
  2. Nominal Damages – Where a person brings a legal action for breach of contract and proves that a breach actually occurred but fails to prove that any actual damage has been suffered, the injured party may be awarded nominal damages.
  3. Liquidated Damages – The contracting parties may stipulate in the contract a sum of money to be paid as damages in case the contract is breached by either party.
  4. Incidental Damages – Includes reasonable charges, expenses, or other costs which directly flow from breach.

Difference between damages and compensation is that damages provide for monetary compensation to a person from a court of law or arbitrators for injuries or losses suffered by him because of the breach of another person. Whereas, compensation seeks to redress injustice to a person by way of providing him monetary help or assistance from the guilty party.

DECLARATIONS

Declaration is the pronouncement by the Civil Court in respect of a person’s right to property whether movable or immovable or in respect of any other right, which once passed, becomes binding on the world at large. It is pronounced in civil cases where Court declares the rights, liabilities, duties of the parties over certain issues. This is not specific performance of a contract or award of compensation/ damages but merely a declaration of rights of the parties. The Court shall not give the decree of declaration where a party do not seek consequential relief but a mere declaration of title.

Who can file suit for declaration:

  1. Persons having any legal character or
  2. Person having any right in any property.

Against whom the suit can lie:

  1. Any person who is denying a right or
  2. Interested to deny his title of such character of right.

OTHER RELIEFS

Temporary Injunction

A Civil Court on an application by any party to a suit, if is satisfied that, till the passing of the final decree/order, the subject matter of suit is likely to be damaged, wasted or being moved out of the jurisdiction of the court where suit is pending, the Court may grant Temporary Injunction to protect the subject matter.

Permanent/ Perpetual Injunction

A permanent or perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually prohibited from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the person seeking the injunction.

Interlocutory Order

Interlocutory or interim orders are interim in nature which are passed during the pendency of the suit to achieve some purpose necessary and essential for the progress of a suit, which are collateral to the issues/ disputes to be settled by the court in the final judgement.

Specific Performance

It is equitable relief granted by the courts in case of breach of a contract in the form of a judgment that the defaulting person must perform the contract according to its terms and stipulations. Where no compensation can be considered enough, in such a case, law provides a way to enforce the parties to actually fulfill their obligations. However, no direction for specific performance of a contract will be passed where the breach can be compensated monetarily.

Evidence, Appeals and Judgment

Yaman Kumar


01/12/2017  

EVIDENCE

Evidence is defined under Section 3 of Indian Evidence Act, 1872 as oral statements made by the witnesses and documents produced into the court.

Procedure under law-
  • According to the Code of Civil Procedure, 1908, the parties state their cases through their pleadings which are accompanied by the documents being relied upon by the parties. Thereafter, both the parties file evidence to support their issues.
  • Once the stage of pleadings is over and issues are framed by the Court, parties proceed to the stage of evidence whereby examination-in-chief and cross-examination of the witnesses takes place. The procedure of evidence in a civil suit is explained below.

Examination and Cross-examination-

  • As per the Indian Evidence Act, a witness is first examined by the party who has produced him as a witness, the said process is called examination-in–chief. Subsequently such witness is cross-examined by the opposite party and the statements made therein through their examination and cross-examination are recorded.

Doctrine of Estoppel-

  • Doctrine of Estoppel prevents a person from taking up different positions from what he had stated earlier.

Final Judgment/ Decree

  • After the stage of evidence is over, final arguments take place by the respective parties and final judgment/ decree is passed by the court.

APPEALS

An appeal is a process through which an aggrieved party challenges any order to the Appellate Court. Right to appeal is neither an inherent nor natural right but a statutory and a substantive right.

There are four kinds of appeals provided under Code of Civil Procedure, 1908 (CPC):

Appeal from original Decree

  • An appeal can be filed under CPC challenging any final decree passed by the Court exercising Original Jurisdiction except under certain circumstances.

Second Appeals

  • As per CPC, an appeal shall lie to High Court against any decree passed in the first appeal by any subordinate court, if the High Court is satisfied that a substantial question of law is involved.

Appeals from Orders

  • No appeal lies from an order, unless it falls within the category of appealable orders provided under Section 104 or Section 105.

Appeal to the Supreme Court

  • A party may approach Supreme Court of India against any judgment, decree or final order in a civil proceeding of a High Court subject to the conditions below:
  • The High Court has to certify that the case involves a substantial question of law of general importance and that in the opinion of the High Court the said question needs to be decided by the Supreme Court of India.
  • A Special Leave Petition can still be filed in case the High Court refuses to grant the certificate of fitness for appeal to Supreme Court of India.

Judgement

A Judgement is defined under Section 2 (9) of the CPC as the statement given by the Judge on the grounds of a Decree or Order. A judgment states the ground and the reasons for the Judge to have arrived at a decision. It is the decision of a court of justice upon the respective rights and claims of the parties in a suit. A judgment includes-

  • A crisp statement of facts of the case.
  • The points or issues for determination.
  • The decision on such issues and finally.
  • The reasons for such a decision.

Decree

  • A decree is the formal expression of an adjudication which is expressed by the Court, and the same conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It can be final or preliminary. It is defined under Section 2(2) of CPC.
  • Adjudication of a decree in the court is a necessity.
  • Decree can only be given in relation to any or all of the matters in controversy in the suit.
  • There must be a conclusive determination of the rights of the parties in the suit
  • .A mere comment of the judge cannot be a decree.

Order

  • Order means the formal expression of any decision of the Court which is not a decree. It is defined under section 2(14) of CPC.
  • An order need not conclusively determines the rights of parties on any matter in dispute. However, it may relate to the issues in controversy.
  • An order need not always be passed on presentation of a plaint in the Court, it can also be passed on presentation of an application or a petition.
  • An order is different from a decree. In case of a decree, an aggrieved party has the right to second appeal on the grounds mentioned in Section 100 of CPC. But in case of appealable orders an aggrieved party does not have the right to second appeal.