Friday, May 27, 2011

How to write Written Arguments?

Recently while researching on a case, my friend came across a very recent and rare piece of judgment from Delhi Court by Justice J.R. Midha, which I found very interesting and worth sharing. This is the case of Mst. Kiran Chhabra and Anr. v. Mr. Pawan Kumar Jain and Ors. [CS(OS) No. 1671/2009] (available at, which deals with an aspect not usually touched or detailed by Courts i.e. ‘How to write Written Arguments in a case’. It is a very short crisp and complete judgment briefing about what the Court expects to be there in the written arguments when it asked for the same from the counsel. Written arguments are recognized in Order XVIII Rule 2(3A) of the Code of Code of Civil Procedure which provides that:

Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record.

Justice Midha stated that the Written Arguments should comprise - a very brief list of dates, the admitted facts and the disputed facts; wherein the points to be decided should be duly formulated as questions or propositions. It also stated that if issues have been framed, separate arguments on each issue must be provided with factual premises in light of which the particular argument is to be appreciated.

Court further stated that: “For each proposition, after stating the factual premises on which a particular argument is given, there should be first the applicable statute which can even be excerpted. Only then, case law may be cited not just as the legal database on a computer shows up on a query; but each judgment has to be examined and only the more relevant ones for each topic be cited. The Court expects the lawyers to place all case laws, both for and against his case, so long as it is relevant to the proposition in question. Those from the Supreme Court be placed first; those from our High Court be placed next; and those from other High Courts be placed thereafter. In each grouping, the judgments are to be arranged in a reverse chronological order. This is in line with the law relating to precedents. Thereafter, for each decided case which appears to be important, a brief resume of the factual scenario in which the judgment was rendered, is necessary where after the relevant portion can be excerpted or described.

It was also cited that in case any older judgment is noticed in a later judgment, then the older judgment need not be cited; but if the later judgment merely follows and says nothing new, then the older judgment, which contains the reasoning and also lays down the law, should be cited and against the first (later judgment) it ought to be noted that it simply follows or approves a particular earlier judgment. In that event, the earlier judgment may be excerpted or discussed together with a brief resume of the factual scenario in that case. The court also emphasized on the ratio-decidendi of the cited case. It stated that after citing or quoting from the judgment, the ratio of the judgment must be stated as it is the ratio and not the conclusion that is binding as a precedent.

Subsequent to that, if there is a contention of the opposite side, it must be answered in entirety and should not be ignored or left for the court to look for an answer. In final, there must be a conclusion or summing up of the case for the Court to get a fair idea of what the arguments are leading to. In addition to the written content, Court also briefed about the minor points such as proper numbering of pages, putting up of placitums of the documents or other material on the court record, and the reported judgments.

Court also stated that “Structuring is most important. If an approach as this followed, the Court gets full assistance, much lesser time of the Court is consumed, and there is less likelihood of the Court falling into error.

This gives a very clear idea of how a written arguments it to be presented before the Court and what is its significance.

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