HOW LITIGATION BEGIN: THE BASICS

-

                                      HOW LITIGATION BEGIN: THE BASICS

Shubham Budhiraja[1]



Criminal law machinery start into motion by filling an FIR or complaint to Magistrate u/s 156(3) thereafter Investigation which followed by submission of final report u/s 173 subject to subsequent filling of report which can be filled till trial starts. The court take cognizance on basis of final report and issue process and thereafter prosecution make deposition of its witness u/s 164 and the court at this stage on basis of material on record frame charges. There is argument on charge order where accused file their written arguments against discharge. The moment there is charge order only then the trial starts. Thereafter there is summoning to the defense and there is cross examination of PW and accused statements u/s 313 CRPC. Summoning made according to 82 and 83 CRPC and lastly followed by Judgment of trial court. The Judgment of trial court is essence of law applied to the facts on basis of evidence.

Civil law machinery starts into motion by filling a plaint or complaint. There is a requirement of cause of action- some bundle of facts giving a right of cause. Unlike criminal trial, there is no requirement of cognizance as such. However there has to be satisfaction of prima facie case at first stage of hearing by plaintiff so that court summons the defendants. The defendant thereafter on receipt of summon has to file written statement within prescribed period. The pleading is plaint and written statement. There may be a case of additional pleading by filling an application which court usually allow by cost. The defendant often file order 7 rule 11 application along-with WS to reject plaint or some defendant instead of filling Order 7 rule 11 application may take preliminary objections in their WS only. Replication or Rejoinder is a subsequent pleading though they are not matter of right and not a part of original pleading. Thereafter there is framing of Issues as per Order 15 of CPC where Issue could be Issue of fact or Issue of law but where there is an Issue of law which goes on to the Jurisdiction of court then same have to decided by court before determining the Issue of fact. Once Issues are determined, the trial finally started. The Issues in civil case is similar to charges framed in Criminal case however the burden of proof in former is different from burden of proof in latter. Also, there is no concept of Discharge application in civil litigation unlike Criminal. Thereafter there is summoning and attendance of Witness in civil as per Order 16 CPC. The summoning and attendance of witness in CRPC is managed through Section 82 to 86 CRPC where there is consequence of attachment order also after declaration of proclaimed offender. Once witness are been called, they are examined, cross examined and re-examined as per Order 18 CPC read with provisions of Evidence law and finally there is a Judgment which finally determine the controversy between the parties. Thereafter the situation of enforcement of this decree which is in accordance to Order 21 CPC r/w Section 36 to 74. There may be a situation where plaintiff applies for attachment before Judgment as well as per Order 38 CPC. The filling of suit is a natural right but filling of appeal is not a natural but creation of statute.  In duration of all these stages, there may be miscellaneous orders passed and many revisions may be filed against it if it is not appealable.

 

This article meant only for academic purpose and should not be construed as a professional or legal advice. The author reserve all rights against creation of this work and any breach to the authors right might invite appropriate actions in accordance to law in force in India.


[1] Associate company secretary and final year law student from faculty of law, University of Delhi

Comments

Post a Comment

Popular posts from this blog

REPUGANCY UNDER ARTICLE 254 & TEST OF VALIDATING LAW

-
Image
  Shubham Budhiraja [1] [1] Company Secretary, LLB Final Year,DU & Bcom (H) The land acquisition falls in concurrent list and parliament in year 2013 has introduced a new act which provides for rehabilitation, compensation and procedure on land acquisition of property. The State of T.N has made 3 different state laws w.r.t. land acquisition which was struck off by the High Court. Thereafter, state of TN in year 2019 enacted the same law but with president assent under Article 254 to avoid the repugnancy with 2013 act under Article 254. The appeal filed before apex court w.r.t. repugnancy of 2019 state law with 2013 central law & test of validating the struck off law. The Supreme Court observed as: VALIDATING A LAW WITH RETROSPECTIVE EFFECT Case Law Relevant Remarks National  Agricultural  Cooperative  Marketing  Federation  of India Ltd. & Anr. vs. Union o...
Read more

Whether a person can be appointed as an arbitrator if his daughter is married to the son of the eldest brother of one of the parties in the arbitration proceedings?

-
Image
    Shubham Budhiraja [1] Two brothers running a family business in the form of a company and dispute arise between them and both decide to resolve through arbitration. During course of arbitration proceedings, one of party filed Section 14(2) r/w Section 15 Petition filed challenging mandate of arbitrator as being terminated because son of arbitrator is married to daughter of eldest brother of one of party and thus should be disqualified under Section 12(5) being ‘close family relationship’. The Hon’ble Delhi High Court declined the relief and held that neither the Seventh Schedule of the A&C Act nor the IBA Guidelines define the expression ‘close family relationship’. The plain language of Entry no. 9 indicates that it is not the legislative intent to render a distant relative of the parties to be ineligible for being appointed as an arbitrator, if both the parties so agree. It is not sufficient that the arbitrator is related to any one of the parties; the relation...
Read more

Whether unstamped agreement to sell executed in the year 1988 can be relied upon in suit for possession?

-
Image
  Whether unstamped agreement to sell executed in the year 1988 can be relied upon in suit for possession?   Under what circumstances, photocopy of agreement to sell can be relied upon as secondary evidence?   Shubham Budhiraja [1]   A filed a suit for possession against B on basis of agreement to sell executed in the year 1989. During the hearing, A filed IA for reading photocopy of agreement to sell as secondary evidence because he is not able to find the original agreement to sell. The Trial Court allowed the IA but in review rejected that because agreement to sell was insufficiently stamped therefore bar of section 35 of stamp act applies. The High Court confirmed the order. The Hon’ble Supreme Court held that bar of Section 35 will not apply because amendment of 1990 wherein explanation was added to the stamp act was substantive in nature and therefore new obligation of stamping cannot be imposed on agreement of sell executed between A and B. [2] ...
Read more