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Tag: On Trial by J Sai Deepak

When can a Civil Suit be disposed of without a trial? Lessons from the commercial courts law

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Framing of issues, as I had observed in my last article here, sets the ball rolling for a conventional trial, that is, the recording of the evidence of both parties. But is a conventional trial mandated in every civil suit? In other words, can a suit be disposed of without parties having to go through this rigmarole? Yes.

For instance, a suit may be disposed of through rejection of the plaint on the ground that, having regard to the pleadings contained in the plaint, the suit is barred by law under Order 7, Rule 11(d) of the Code of Civil Procedure, 1908 (CPC”). Order 7, Rule 11 provides six grounds for rejection of a plaint, some of which are factual in nature and some are procedural. Ground (d) is legal. Procedural grounds relate to curable defects and are not necessarily fatal to the suit. Factual grounds are usually treated as issues which require trial and therefore do not result in rejection of the plaint upon filing of an application invoking such grounds. These are framed as preliminary issues for trial and taken up at the stage of final arguments based on evidence led by the parties. A legal ground however, could result in the rejection of the plaint and even the decree of the suit, before trial. For example, if a defendant in a suit for copyright infringement takes the defense that the subject matter in which copyright allegedly vests, is ineligible for copyright protection since it falls outside the definition of “work” under the Indian Copyright Act, 1957, it may be possible for a court to reject the plaint and decree the suit on that ground alone if it concurs with the defendant.

Another provision which may be invoked to obviate the need for trial is Order 12, Rule 6, which empowers a court to pronounce judgment and decree a suit on the basis of admissions of fact made by a party to the suit in a pleading or otherwise, orally or in writing. This would, however, require such admission to be unequivocal, unambiguous, and material to the claim of the plaintiff or defense of the defendant, as the case may be. If there is scope for more than one plausible interpretation of the fact or further evidence needs to be led in relation to that fact, a court may deem it fit to allow the suit to proceed to trial on the ground that a clear-cut case of admission as required under Order 12, Rule 6 has not been made out by the applicant.

A suit may also be decreed in terms of a settlement arrived at by the parties under Order 23, Rule 3. While a judgement delivered under Order 7, Rule 11 or Order 12, Rule 6 is appealable, a consent decree is not unless the terms were arrived at by fraud or misrepresentation.

Summary judgment under Order XIIIA of the CPC

The CPC as amended by the Commercial Courts Act, 2015, has provided yet another way to decree a suit of a commercial nature without it having to go through the motions of a conventional trial. Order XIIIA of the amended CPC, which I have discussed once earlier in the series, provides a mechanism under which a summary judgement may be delivered in commercial suits if the conditions set out in the provision are satisfied. In a recent judgment of a division bench of the Delhi High Court, I had the privilege of assisting the Court in examining the stage at which Order XIIIA may be invoked, the manner of its invocation and application. I was instructed in this matter by the NCR-based law firm, Sim & San.

The judgement, which I would strongly recommend law students to read, discusses the institution of a suit in great detail with analysis that spans several provisions of the CPC. One of the questions before the Court, perhaps for the first time, was whether it is open for a court to invoke Order XIIIA suo moto in a commercial suit to dismiss it even before issuing summons to the defendant.

In addressing the issue, the Court undertook a detailed examination of the scheme of Order XIIIA, including its placement in the CPC after issuance of summons to the defendant under Order V and before framing of issues in Order XIV. A clear reading of the procedure laid out reveals the following:

  1. An application under Order XIIIA is contemplated to set the ball rolling.
  2. The application may be made at any time after summons has been served on the defendant, but not after issues have been framed in the suit.
  3. The application may be moved by either the plaintiff or the defendant.
  4. What the application must specifically contain has been prescribed in Rule 4 of Order XIIIA.
  5. The respondent to the application must be given a period of 30 days to respond to it.
  6. Apart from the evidence already on record, both parties may lead additional evidence to support their respective contentions.
  7. A date of hearing in the application must be fixed, of which the respondent to the application must be informed.
  8. The necessary grounds on which a summary judgement may be delivered by a court are – (a) that the respondent to the application (either the plaintiff or the defendant) has no real prospect of succeeding in the suit and (b) there is no compelling reason why the suit should not be disposed of before recording of oral evidence.
  9. Rules 6, 7, and 8 set out the various orders that a court may pass in deciding such an application.

Nowhere does Order XIIIA permit a court to invoke and apply this framework suo moto, much less dismiss the suit even before the defendant enters appearance. Apart from the fact that Order XIIIA does not empower a court to do so, such power, if it had been vested, would have been at loggerheads with the adversarial legal system followed by Indian courts. Extracted below are the relevant observations of the Division Bench in this regard:

“23. From the provisions laid out in Order XIIIA, it is evident that the proceedings before Court are adversarial in nature and not inquisitorial. It follows, therefore, that summary judgment under Order XIIIA cannot be rendered in the absence of an adversary and merely upon the inquisition by the Court. The Court is never an adversary in a dispute between parties. Unfortunately, the learned Single Judge has not considered the provisions of Order XIIIA CPC in this light. 24. In view of the discussion above, since no summons had been issued and obviously no application had been filed by the respondents for a summary judgment, the learned Single Judge could not have dismissed the suit invoking the provisions of Order XIIIA CPC.

  1. In view of the discussion above, since no summons had been issued and obviously no application had been filed by the respondents for a summary judgment, the learned Single Judge could not have dismissed the suit invoking the provisions of Order XIIIA CPC.”

 To me, the court’s recognition and reinforcement of the adversarial nature of the Indian legal system, notwithstanding the amendments made to the discovery mechanisms in the CPC in 2002 and through the Commercial Courts Act, 2015, is one of the highlights of the decision. In the near future, we can expect a few more decisions that revolve around provisions introduced through the Commercial Courts Act.

In the next part, I will proceed with a discussion on commencement of and preparation for trial.

Sai Deepak is an engineer-turned-law firm partner-turned-arguing counsel. Sai is the founder of Law Chambers of J. Sai Deepak and appears primarily before the High Court of Delhi and the Supreme Court of India. He is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation, and policy. All opinions expressed here are academic and personal.

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What’s the issue – Understand why and how courts frame issues in civil suits

JSaiDeepak_OnTrialIt helps to occasionally step back and seek the true meaning of an element of procedure. This is true about the framing of issues in a civil suit since the significance of this step in a trial is often taken for granted.

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What is an issue?

The title of Order 14 of the Code of Civil Procedure, 1908 (“CPC”) is “Settlement of Issues and Determination of Suit on Issues of Law or on Issues Agreed Upon”. Clearly, a suit is determined on the basis of issues of law or other issues agreed upon by the parties in a suit. But what is an “issue”? Although the CPC does not define the term, Sub-rule 1 of Rule 1 of Order 14 says that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. In other words, both parties must disagree on a material proposition of fact or law.

The Evidence Act, 1872 also defines “Facts in issue” to mean and include any fact which, either by itself or in connection with other facts, has a bearing on a right or liability asserted or denied in a suit. According to the explanation to this definition, when a court records an issue of fact under the CPC, the fact to be asserted or denied in response to such an issue would also be treated as a fact in issue.

What is a material proposition giving rise to an issue? Sub-rule 2 of Rule 1 states that material propositions are those propositions of law or facts which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute a defence. Simply put, a material proposition is one that advances a party’s case factually or legally.

Sub-rule 3 mandates that each material proposition on which the parties disagree shall be framed as a distinct issue. Could it be said therefore, that propositions of fact or law which do not further a party’s case are not material and therefore ought not to be framed as issues? What consequences follow when a proposition of fact or law, although material, is not framed as an issue despite the parties being at variance with each other?

On this, the Supreme Court has held that the non-framing of an issue does not vitiate the proceedings as long as the pleadings of parties bear out that the issue exists and both parties have led evidence at trial to prove their respective contentions on the issue. In other words, a court can rule on an issue even if it has not been specifically framed, so long as it is material to the determination of the suit.

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The process of framing

How does a court go about framing an issue? Sub-rule 5 of Rule 1 lays down the procedure for this. At the first hearing of a suit, the court shall, after reading the plaint and the written statement, and after examination under Order 10 Rule 2, and after hearing the parties or their counsel, ascertain upon what material propositions of fact or law the parties are at variance, and shall then proceed to frame and record the issues on which the right decision of the case appears to depend.

What does this mean? Simply, that a court has to understand the contentions of the parties from their written pleadings and oral submissions and distill only those propositions of fact and law on which the parties differ and which are “material” for the adjudication of the suit. The question of materiality in Sub-rule 5 has no bearing on the tenability of the contentions of parties on factual or legal propositions. It simply refers to testing an issue for its relevance to the determination of the case.

For instance, in a suit for patent infringement, if there is no dispute between the parties about the plaintiff’s ownership of the patent, there is no point in framing an issue on it. Even though the question of ownership is material, the parties do not disagree on it. Contrast this with a situation where the plaintiff claims to be an assignee of the erstwhile patent owner and the defendant disputes the fact of assignment. The question of ownership or assignment of the patent is material because under the Patents Act, only a patentee or the exclusive licensee may institute a suit for infringement. In other words, the maintainability of the plaintiff’s action is in question. Moreover, since the parties disagree on this material question, the court has to frame an issue on it.

This procedure of framing of an issue needs to be clearly understood. Some people tend to read more into the mere framing of an issue under Order 14 than is warranted. The framing of an issue does not amount to a court taking a position on the contentions of the parties on a material question of fact or law. The court is merely etching the contours of the trial so that the progress of the trial is not waylaid by a slugfest on immaterial issues that have no bearing on the adjudication of the rights and liabilities of the parties. Reading the Supreme Court’s decision in Makhanlal Bangal v. Manas Bhunia (2001), delivered in the context of the Representation of the People Act, 1951, but relevant since the procedure under the CPC applies to the statute, will help clear the fog around the framing of issues.

In the next post, I will deal with the commencement of trial.

Sai Deepak is an engineer-turned-law firm partner-turned-arguing counsel. Sai is the founder of Law Chambers of J. Sai Deepak and appears primarily before the High Court of Delhi and the Supreme Court of India. He is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation, and policy. All opinions expressed here are academic and personal.

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More tools for litigators after Commercial Courts Act boosts discovery in India

JSaiDeepak_OnTrialI have often heard it lamented that India lacks U.S.-style discovery mechanisms at trial. While I am no expert on U.S. procedural law, I believe that Indian civil procedure contains substantial mechanisms for discovery. Let us now look at the mechanisms available under the Code of Civil Procedure, 1908 (“CPC”) including those recently introduced to the CPC through the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Commercial Courts Act“). Employed effectively, they can narrow down the scope of facts and issues that need examination at trial.

Discovery under the CPC

Section 30 of the CPC provides for a court’s power to order discovery. At any time during the conduct of a suit, this provision empowers a court, either of its own motion or on the application of a party, to pass necessary and reasonable orders relating to the delivery and answering of interrogatories; the admission of documents and facts; and the discovery, inspection, production, impounding, and return of documents or other material objects that may be produced as evidence. The provision also empowers a court to issue summons to persons whose attendance is required either to give evidence or to produce documents or other objects that may be led in evidence. A court can also order any fact to be proved by way of an affidavit. While it is commonly assumed that only Order XI of the CPC corresponds to Section 30, Orders XII, XIII, and XVI also contain provisions that relate to Section 30.

What’s the role of a court in discovery proceedings?

The framework that emerges from a combined reading of Section 30 and Orders X, XI, XII, XIII, XVI, and XVIII informs us that the assumption that Indian courts lack powers of discovery because they adhere to the adversarial system of justice may not be true. In Maria Margadia Sequeria v. Erasmo Jack De Sequeria (2012), the Supreme Court, holding that discovery was one of the main purposes of the existence of courts, made some telling observations:

“A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that “every trial is a voyage of discovery in which truth is the quest”. In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.

41. World over, modern procedural Codes are increasingly relying on full disclosure by the parties. Managerial powers of the Judge are being deployed to ensure that the scope of the factual controversy is minimized.

42. In civil cases, adherence to Section 30 CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges.”

The Court also quoted from the report of the Malimath Committee, which had highlighted the drawbacks in a strictly adversarial system and recommended that courts be statutorily mandated to become active seekers of truth. This fundamental shift in the Indian approach to disputes must be borne in mind when one invokes the mechanisms for discovery. In A. Shanmugam v. Ariya K.R.K.M.N.P.Sangam (2012), the Court, apart from reiterating the ratio of Maria Margadia Sequeria, categorically observed that ensuring discovery and production of documents and a proper admission or denial is imperative for the effective adjudication of civil cases.

Bar raised by Commercial Courts Act

The Commercial Courts Act, 2015 builds on this approach further by introducing an improved discovery mechanism, evident from the language and structure of Rules 1 to 5 in the revised Order XI, which is specific to suits of a commercial nature. The spirit of the revised framework is perhaps best captured by Sub-rule 12 of Rule 1. It unequivocally states that the duty to disclose documents that have come to the notice of the party shall continue until the disposal of the suit. It goes without saying that the reference here is to documents, which are relevant and necessary to decide any question that is germane to the dispute before the court. Critically, both parties are expected to file a list of all relevant documents which are in their power, possession, or control regardless of whether those documents support or undermine their respective positions on merits. Clearly, the bar has been raised under the Commercial Courts Act and both the parties and the courts have access to fairly effective discovery options to facilitate expeditious disposal of suits. The actual employment of these options, of course, remains to be seen.

In the next part of this series, I shall discuss framing of issues and the commencement of trial.

J. Sai Deepak is an engineer-turned-law firm partner-turned-arguing counsel. Sai is the founder of Law Chambers of J. Sai Deepak and appears primarily before the High Court of Delhi and the Supreme Court of India. He is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation, and policy. All opinions expressed here are academic and personal.

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Know all available interim reliefs but be smart about using them

JSaiDeepak_OnTrialIn my previous post here, I discussed a few important terms from the Code of Civil Procedure, 1908 (“CPC”). That discussion alone illustrates that mechanical compliance with procedural law is not enough. Even though they are regularly described as the handmaidens of justice, procedural legislations are also statutes to which rules of statutory interpretation apply. If you are still not convinced, just talk to some colleagues about some of the most basic terms and clauses in the CPC and you will see for yourself the varied and equally plausible interpretations they can give rise to. Imagine how much trouble the creative interpretation of procedure can cause!

Let us take the case of interim applications. These are applications filed as an adjunct to the primary suit proceeding and may result in interlocutory orders, dismissals of suits, or decrees. If you represent the plaintiff, you will file along with the suit, a host of interim applications — starting from the seemingly mundane applications under Order 13 of the CPC seeking exemption from filing original documents to the important ones seeking urgent ex parte interim reliefs under Order 39 pending disposal of the suit. If you represent the defendant, you will move applications along with your written statement objecting most frequently to the maintainability of the suit on the procedural and substantive grounds under Order 7, Rules 10 and 11. Clearly, while interim applications are expected in theory to proceed in parallel to the suit, more often than not they interfere with the progress of the suit and vice versa.

More interim reliefs in the CPC, Horatio, than are dreamt of in your philosophy

Because of practice and convention, a few interim applications are invoked more often than others. But lawyers cannot afford to limit their knowledge to provisions that they frequently encounter. In fact, what better way to impress a court than to invoke a less-trod procedural provision and to explain to the court the manner in which it should be construed and applied? For instance, when sued by a foreign party that has no immovable property in India, it might help to test waters by drawing the court’s attention to Order 25 of the CPC to require the plaintiff to deposit security in court. This will help you understand the plaintiff’s will to fight to the finish since an order for depositing security casts an additional financial burden on the plaintiff besides the court fee and legal costs it has already incurred.

Another example is Order 13-A of the CPC, introduced recently through the Commercial Courts Act, 2015. It allows a defendant to seek a summary judgment in any commercial dispute if it is able to convince the court that the plaintiff is unlikely to succeed at trial and therefore no need for a protracted conventional trial. The Commercial Courts Act, 2015 is replete with such opportunities because it is designed to reduce frivolous litigation and expedite genuine litigation.

Know when to press a procedural button

That said, it is also important to appreciate the distinction between the theoretical availability of a procedural option at any stage and the appropriateness of invoking it from a strategic perspective. For instance, interrogatories under Order 11 of the CPC allow a party to put factual questions or questions relating to documents with a view to elicit answers which are not evasive. While this mechanism has certain benefits on paper, it gives the other side a peek at the interrogating party’s potential strategy at trial, besides the obvious advantage of answering questions without being under the pressure of cross-examination. Similarly, while it may seem routine to lodge a caveat under Section 148A of the CPC with a view to pre-empt the grant of ex parte orders, it is important to consider how such a course of action may be perceived and the adverse inference that a court may draw. Once again, this is a question of strategy and a litigator has to strike a balance between knowledge of a provision and the advisability of its application.

Substantive legislations also provide for a host of interim applications addressing various aspects of the subject-matter they cover. For instance, on February 5, 2016, a full bench of the Delhi High Court delivered a decision on the application of Section 124 of the Trademarks Act, 1999 under which infringement suit proceedings can be stayed subject to the satisfaction of the conditions under the provision. This decision is being considered by a division bench in a batch of appeals where Section 124 has been commonly invoked. I happen to be arguing in one of the appeals and hopefully, shall be able to write on this issue once there is more clarity.

In the next post, I will discuss discovery proceedings.

J.Sai Deepak, an engineer-turned-litigator, is an Associate Partner in the Litigation Team of NCR-based Saikrishna & Associates. Sai is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation and policy. All opinions expressed here are academic and personal.

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‘Material facts’, ‘material particulars’ and other common CPC terms that are vital for a trial lawyer

JSaiDeepak_OnTrialThere are some terms that are frequently used in the Code of Civil Procedure, 1908 (“CPC”), and it is important to understand them well because the maintainability of a civil action can depend on your understanding. As you know, the court will not address the merits of a dispute until it is prima facie satisfied about the maintainability of an action.

Cause of action, act, and interest

In Orders 1 and 2 of the CPC, where joinder of parties and causes of actions are discussed among other things, one frequently comes across the terms “cause of action”, “interest”, and “act or transaction”. While Order 1 Rule 1 refers to “acts or transactions”, Order 1 Rule 8, which permits the filing of a representative suit, clarifies in its explanation that those claiming to file a representative suit need only have the “same interest”, they need not have the “same cause of action”. What do these terms mean?

An “act or transaction” is different from “cause of action”. The former gives rise to the latter. An actionable cause arises from an act when the act amounts to the infraction of a party’s right. For instance, selling a patented product without consent is an act which gives rise to a cause of action in favour of the patentee. The same act could also give rise to different causes of action in favour of the same right owner or several right owners. In the example above, the sale of a product could result in infringement of a patent as well as a trademark held by the same individual or could infringe several patents held by unrelated parties.

In contrast to Order 1, Rule 1, which deals with joinder of plaintiffs and Order 1, Rule 3 which deals with joinder of defendants, Order 1, Rule 8,which permits filing of a representative suit, uses the term “interest” to increase the scope for joinder of parties beyond what is provided in Rules 1 and 3. The word “interest” has been used to facilitate adjudication of all questions which arise from the same set of acts or transactions. This provision is intended to avoid multiplicity of litigation where all persons are aggrieved by the same acts or transactions. Importantly, this permits one person to represent all other “interested parties”. For instance, if a host of tenants have an issue with an act or acts of the landlord, instead of filing multiple suits or instead of naming all tenants as parties in one suit, one tenant may represent the rest. Therefore, Rule 8 enlarges the scope of joinder of parties so long as there is a communion of “interest” between the parties.

The distinction between “act or transaction”, “cause of action”, and “interest” affects the maintainability of a civil action. The failure to disclose a prima facie cause of action, for instance, would result in the dismissal of a suit at the outset under Order 7, Rule 11. Similarly, to justify arraying a host of parties as defendants, a plaintiff must set out their relationship inter se, along with their nexus to the transaction which has given rise to the cause of action in favour of the plaintiff against all the defendants. Should the plaintiff fail to justify this, his plaint could be assailed for misjoinder of parties or non-joinder of necessary parties.

Now, let us look at “facts” and “particulars”, two terms that occur frequently in relation to pleadings in Order VI.

Facts, material facts, and material particulars

CPCcontentsOrder VI of the CPC, as discussed earlier, deals with pleadings. It uses the terms “material facts” and “particulars” in different places. Are “material facts” and “particulars” the same? The rules of statutory interpretation and even a common sense understanding of the English language tell us that there is a clear difference. “Facts” refer to the broad matrix or the canvas in the backdrop of which a dispute is contested. “Material facts” are those facts which must find mention in a party’s pleadings in order to establish a claim. “Particulars”, on the other hand, refer to the addition of greater detail to the facts.

The absence of material facts prejudices a party’s case at the outset. The absence of material particulars on the other hand, is curable. The Supreme Court has discussed the distinction between material facts and particulars in Udhav Singh v. Madhav Rao Scindia (1975)In this case, the Court held that “all primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts”. The Court also explained the consequences of the absence of material facts and material particulars.

“The distinction between “material facts” and “material particulars” is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16, Code of Civil Procedure.

If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the court has discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.”

These terms not only affect the the maintainability of an action, they also influence a party’s prospects at trial when a party is expected to lead evidence with respect to facts in issue. If such facts have not even been pleaded, the party cannot lead evidence to prove such facts. This would necessitate amendment of pleadings under Order 6, Rule 17, which can be a pretty messy affair.

In the next post, I will discuss interim applications under the CPC and the circumstances in which they may be employed.

 J.Sai Deepak, an engineer-turned-litigator, is an Associate Partner in the Litigation Team of NCR-based Saikrishna & Associates. Sai is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation and policy. All opinions expressed here are academic and personal.c 

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While drafting opinions and notices, be circumspect and remember the context of a potential litigation

JSaiDeepak_OnTrialSince Orders VI, VII, and VIII of the Code of Civil Procedure, 1908 provide a framework for the drafting of pleadings (which I wrote about previously), it is relatively easier for a litigator to understand the requirements. There is however, no similar codified framework for legal opinions for clients and legal notices and as a result, a litigator naturally falls back on the practice of the chamber or firm that he is working with or for. Drafting legal opinions and notices however, presents a litigator with a wonderful opportunity to showcase and develop acumen, foresight, and a sense of discretion. Needless to say, the ingredients of an opinion and a notice differ and so does the approach.

Understand the situation and the client before you draft an opinion

Generally speaking, a legal opinion addresses a specific query from a client. It presents the client with the options available along with their pros and cons. Since the client must be made aware of the position of the law, the outcome of legal research forms an indispensable component of an opinion but there are sensitive aspects that go beyond an exposition of the law. While one kind of opinion presents a bouquet of options to the client and stops short of recommending the way forward, the other type also strongly recommends a specific option that (in the litigator’s opinion) is the most viable and advisable. To be clear, the ultimate decision is the client’s. The difference only lies in the degree to which the litigator leans on the client and pushes an option. In my opinion, it would help to not subscribe rigidly to either school of thought because the approach must depend on (a) the situation, (b) the client’s awareness of the legal and commercial consequences, and (c) his appetite for taking risk.

For instance, if the client is not a legally savvy individual whose personal liberty is at stake in a criminal case, it is for the litigator to help the client make the choice by uncluttering the options before him. In contrast, if the matter is a civil commercial dispute and the client is a seasoned litigant who merely wants options from which he can choose, the litigator may do just that. This rudimentary illustration is not meant to convey the impression that the stakes in a civil commercial dispute are never as high as those in a criminal matter. Regardless of the situation however, in rendering a written opinion, at all points of time the litigator must be aware that his credibility and credentials are on the line each time.

You are not an oracle

AdvocateInspectingPaperYoung litigators should remember what is at stake because in their eagerness to prove themselves to their seniors and clients, they sometimes stick their necks out to such an extent that they unwittingly offer their heads on a platter to people looking for a convenient scapegoat when things don’t pan out as anticipated. Since reputation is paramount in the legal profession, the litigator must ensure that the client knows that given the several variables involved, no amount of comprehensive legal research and preparation can predict litigation outcomes with certainty. A litigator is not an oracle. Importantly, on issues where there is not enough judicial guidance, no matter how confident the litigator may be in his interpretation of the law or assessment of the situation, it is best to observe a fair degree of caution in the opinion because judicial outcomes can be bizarre no matter how clear the language of the law may be or how open-and-shut a case may seem.

Prepare before you issue notice

A legal notice is the precursor to potential litigation and therefore, a litigator should pay attention to both the content and the language. To borrow from the words of Fali Nariman, notices, like suits for defamation, are often issued in haste and regretted at leisure. Since there is no one statute for legal notices, each notice is implicitly governed by the legislation which applies to a certain act or a transaction to which the notice pertains to. For instance, if the subject-matter of the notice is an alleged contractual violation, the Contract Act and the terms of the contract have an obvious bearing on the ingredients of the notice. Similarly, if the notice alleges an infringement of trademark rights or copyright, the respective legislations and causal facts dictate the elements of the notice.

Before issuing a notice, the litigator should be satisfied that the facts placed before him by the client are reliable and give rise to at least an arguable cause of action because some legislations provide remedies to the recipient of the notice (“noticee”) for groundless threats or allegations. That being said, it would help to keep the language of the notice slightly open-ended because at the time of issuing the notice, one may not always be in possession of complete facts, and the object of the notice may be to test waters and elicit potential defenses from the noticee who is a prospective defendant or even a plaintiff. If the object of the notice is to forewarn the noticee of the existence of a right and thereby lay the foundation for the wilful violation of rights or contractual terms, as the case may be, the language of the notice and the contents of the allegation must clearly identify the scope of the right or the import of the contractual term, although this could result in limiting the scope of pleadings in litigation by estoppel. This clearly calls for a fair bit of due diligence before the notice is issued.

Limit your notice to its role in a potential litigation

Sometimes, in cases involving reputation, the tendency is to resort to puffery or to exaggerate. This is typical of trademark litigation where the trademark owner claims that his products are sold across the length and breadth of the country. In doing so, he inadvertently allows the noticee to initiate legal proceedings at a place of his choosing because the law legitimately permits him to do so. In one such case, a Division Bench of the Delhi High Court held that by claiming in a legal notice that its products were sold across the length and breadth of the country, the defendant had given the plaintiff a legitimate reason to institute a suit in Delhi. Since the law is that the veracity of such a claim by the defendant can only be tested at trial, the Delhi High Court held that the plaint could not be returned under Order VII, Rule 10 for want of territorial jurisdiction. Such examples abound partly because the client may at times insist on capturing his anger, outrage, or position in harsher or more pompous language than necessary in a legal notice. But it is for the litigator to explain to the client that a legal notice forms an integral part of litigation and therefore, it is advisable to keep the language clinical and objective. Emotion too must be used only to the extent that it serves to further the legal merits of the case. Again, this is an exercise in client-counselling, which forms a large part of the litigator’s job.

In the next post, I will proceed to discuss the use of interim reliefs available under the Code of Civil Procedure, 1980.

J.Sai Deepak, an engineer-turned-litigator, is an Associate Partner in the Litigation Team of NCR-based Saikrishna & Associates. Sai is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation and policy. All opinions expressed here are academic and personal.

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Drafting need not be a chore if you reflect on what you want to tell the court

JSaiDeepak_OnTrialWith a series of posts that will appear here under the header “On Trial”, I want to give lawyers who are about to embark on their professional journey, a flavour of what I have learnt in six years as a trial and appellate litigator. I believe that although law schools equip students with some basic skills, by and large they do not prepare them for the rigours and demands of a law practice. I hope that my posts here will help them scale the learning curve faster and with fewer mistakes.

Another recent trend that I noticed was that students are keen to take “activist” positions without doing their research on the law as it exists. There is nothing wrong in taking positions or having opinions on matters of policy but lawyers need to first have clarity on what the law is before commenting on what the law ought to be. That apart, no matter how good one is at substantive law, it is important to know how to present and prove a case in a court of law. Command over procedure is equally important and procedure is best learnt through application and practice.

Introspect when you make errors

StressedLitigatorOnce you join the profession, you will realise that most experienced lawyers do not have the time to sit you down and explain how things work. You learn on the job and naturally, are bound to commit a lot of mistakes. The experience can be soul-shattering and may shake your confidence in yourself. What has helped me in these moments is the realisation that a lawyer must not only be a doer, but must also be a conscious observer of his actions. In other words, every time you goof up, your first instinct must be to look inward and be brutally honest, instead of passing the buck or making anyone else the scapegoat. This realisation led me to create my own “Mistakes Log” which has captured nearly every mistake I have committed in the last six years. I have preffered to assess the quality of my journey using the number and quality of my mistakes because success is the product of several factors, many of which are external and are beyond one’s power.

In these posts, I will draw on my experiences (both personal and vicarious) and share a few practical inputs. I will not, unless absolutely necessary, use much legalese or cite precedent because, thanks to the tools and databases available to most lawyers and even non-lawyers these days, it is not really difficult to read up on the case law on any issue, procedural or substantive. That said, it is important to bear in mind that individual journeys vary and consequently, the lessons drawn as well. Therefore, caveat lector applies to what I have to say.

I will write about aspects of both civil and criminal litigation. Under civil litigation, I will discuss pleadings, interim reliefs, discovery, the trial, oral arguments, and finally, appellate reliefs. Let us look at the general approach to drafting and pleadings first.

Orders VI to VIII of the Code of Civil Procedure, 1908 deal with pleadings. A pleading is defined in Order VI, Rule 1 to mean a plaint or a written statement. Orders VII (read with Section 26) and VIII deal with the requirements of a plaint and written statement respectively and the rules that govern pleadings generally are laid down in Order VI. Adherence to these rules, it is important to understand, is mandated only to the extent that the ends of justice are advanced. Departures from them are not uncommon in practice, nor are they frowned upon by courts unless they are egregious or fatal. This is not to trivialise or discourage adherence to these rules, it is merely an observation about the state of affairs.

In practice, when it comes to pleadings, the tendency is to play safe. This manifests in several ways – right from faithfully adopting boilerplates to making repetitive submissions for the fear of being accused of not denying an allegation or a claim or an assertion by the other side, so much so that even evidence affidavits turn out to be slavish reproductions of pleadings.

Drafting need not be a chore

Although there is a sense of safety in treading the conventional path and in reiterating, errors tend to creep in when templates are adopted without discrimination and that could cause embarrassment when they are scrutinised by the opposing side during trial. Also, from the litigator’s point of view, drafting becomes a chore as opposed to the active learning and simulation exercise it is supposed to be, which certainly does not bode well for the quality of the final product. So how does one go about drafting pleadings?

For starters, it would help to bear in mind that drafting is different from writing. Although good writing skills contribute to good drafting, being adept at English or at writing do not necessarily translate to good drafting. In fact, sometimes there is even a mismatch between the flair that people exude for spoken English and the quality of their writing, and even the converse holds good. Therefore, although a fair command over language and lucidity in writing are essential, what separates writing from drafting, is the realisation that:

(a) it has a real and serious bearing on the fortunes of a litigant.

(b) it caters to an audience that is trained in the law,

(c) it has to present the litigant’s case in the best possible manner while conforming to the requirements of the law, and finally

(d)it will be subjected to withering adversarial dissection by the opposing party (a draft looks great only until the opposing party steps into the picture).

Bearing all of this in mind helps lend sharpness to a draft. That said, given the critical role of pleadings, it is natural to be bogged down by the tedium and gravity of the process. So, given that in the initial years of practice, a litigator is primarily expected to be a researcher and a drafter, how does one quickly churn out sharp drafts and yet make it an engaging exercise?

Although it may not always be desirable or possible, crisp and concise pleadings make life easier for the litigator and the court, more so for the latter since it does not have the time or patience for rambling pleadings. In fact, the volume of pleadings invariably weans a court away from hearing a matter even if the dispute is otherwise fairly straightforward. That said, a litigator’s primary challenge in keeping pleadings to the point is to convince the client that volume of pleadings is not directly proportional to the strength of the case and certainly does not guarantee a successful outcome. This is where the litigator has to fall back on her or his client counselling skills to set reasonable expectations to the client. While it is true that not every client may be convinced, the effort is worth it.

Reflect on what you want to present to the court

The key to clear-cut pleadings is to spend time thinking about what one wishes to present to the court before starting to draft. This means that the broader and the narrower points must be broadly identified and supported with factual and legal research. Subsequently, the litigator must decide the sequence in which the points must be captured so that the court can quickly grasp the nub of the matter without having to wade through several pages. This sequence must not be treated as final because during the course of drafting, an alternate sequence of arguments may seem more logical, or appeal from a strategic perspective. Although this approach may seem time-consuming at first, the advantages of spending time on the matter before drafting will become apparent with time as one becomes more adept at identifying issues and developing a feel for the forum. After all, in our profession, hard work is not measured by the number of hours spent in thoughtless labour or the number of pages drafted. The effort lies in rumination.

J.Sai Deepak, an engineer-turned-litigator, is an Associate Partner in the Litigation Team of NCR-based Saikrishna & Associates. Sai is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation and policy. All opinions expressed here are academic and personal.

Written by myLaw