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 http://judg-mental.blogspot.com/2011/05/mst-kiran-chhabra-and-anr-v-mr-pawan.html), 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.

Who is a ‘person aggrieved’? Is the ‘grievance’ a ‘spark plug’ or ‘fuel’ for rectification proceedings?

Trademarks and most other forms of IP (except Patents) could be termed as subset of common law and may not necessarily require a special legislation. The special legislations were enacted primarily to impart clarity in substantive issues and enabling procedural aspects. Still, it is presumed that any substantive issue, could well be resolved by referring to the common law without help of to the special legislation, and the answer, in most circumstances, should be non-conflicting with the one obtained from the special legislation. But not always!!! The present post pertains to the issue of who is a ‘person aggrieved’ and the whether it is sufficient for an applicant in a rectification proceedings to show itself as ‘person aggrieved’ only at the time of filing or should the grievance continue until the decision of rectification? It was the moot question in the case of Infosys Technologies Ltd. v. Jupiter Infosys Ltd. and Anr. before the Hon’ble Supreme Court of India. In this case, the Respondent filed a petition for company name change during the pendency of the rectification petition, so as to remove the word ‘Infosys’ from the company name. The appellant, argued that an application for rectification, whether under Section 46 or Section 56 of the 1958 Act, can only be preferred by a ‘person aggrieved’ and the applicant must not only be a person aggrieved on the date of the application but must continue to remain a person aggrieved until such time as the rectification application is finally decided. Therefore, the appellant urged that the defendant ceased to be an aggrieved person after the filing of petition for company name change. In response, the respondent replied that as per Section 46 (1) of the 1958 Act an aggrieved person relates only to the period upto the date of the filing of the rectification application and the rights of the parties crystallized at that stage itself.

The Hon’ble Supreme Court, while considering the first issue of who is a ‘Person aggrieved’, stated that to be an aggrieved person under Section 46, the person must be one whose interest is affected in some possible way; it must not be a fanciful suggestion of grievance. A likelihood of some injury or damage to the applicant by such trade mark remaining on the register may meet the test of locus standi. The Hon’ble Supreme Court also relied on the Kerly’s Law of Trade Marks and Trade Names (11th edition) to cull out the definition of ‘person aggrieved’ at page 166 as: The persons who are aggrieved are all persons who are in some way or the other substantially interested in having the mark removed – where it is a question of removal – from the register; including all persons who would be substantially damaged if the mark remained, and all trade rivals over whom an advantage was gained by a trader who was getting the benefit of a registered trade mark to which he was not entitled.

The Hon’ble court also stated that the meaning of the phrase ‘person aggrieved’ in section 46 and section 56 have different connotations. As per the Hon’ble Court, in latter case, the locus standi would be ascertained liberally, since it would not only be against the interest of other persons carrying on the same trade but also in the interest of the public to have such wrongful entry removed. Court also relied on decision of House of Lords in the matter of Powell’s Trade Mark for the definition of “person aggrieved” in this context of section 56 as: “... although they were no doubt inserted to prevent officious interference by those who had no interest at all in the register being correct, and to exclude a mere common informer, it is undoubtedly of public interest that they should not be unduly limited, inasmuch as it is a public mischief that there should remain upon the register a mark which ought not to be there, and by which many persons may be affected, who, nevertheless, would not be willing to enter upon the risk and expense of litigation.

On the second, and perhaps more critical, aspect of whether the person should be an aggrieved person only at the time of filing of rectification petition or the grievance should continue till the date of decision, the Hon’ble Court stated that the grievance of the applicant when he invokes Section 46(1) must not only be taken to have existed on the date of making application but must continue to exist when such application is decided. If during the pendency of such application, the applicant’s cause of complaint does not survive or his grievance does not subsist due to his own action or the applicant has waived his right or he has lost his interest for any other reason, there may not be any justification for rectification as the registered trade mark cannot be said to operate prejudicially to his interest. Therefore, not only that the applicant has to show that he is an aggrieved person as his interest is being affected but the IPAB must also be satisfied, before it directs the removal of registered trade mark, that the applicant is an aggrieved person before it invokes the power in directing the removal of the registered trade mark. This is so because the pre-requisite for exercise of power under Section 46(1) is that the applicant is a person aggrieved.

Thus, unlike other civil actions, where the cause of action may not be a continuing one and still maintainable before the Court of law, the rectification proceedings are to be ceased as soon as the person ceases to be an aggrieved person.

What does a "Suit" means?

I realized, quite lately, that I started this blog during my college days but could not continue it for no good reasons. I have decided not only to revive it but also to try keeping it alive now with regular posts on some interesting issues in civil laws, ofcourse with all your support and comments.

I was reading an interesting decision of IPAB (Intellectual Property Appellate Board) in the case of Enercon India Limited v. Aloys Wobben, (available at http://www.ipab.tn.nic.in/Orders/245-2010.htm), which is basically a case of revocation of patent under section 64 of the Patents Act, 1970. One of the issues raised by the Patentee in this case was that the revocation petition was not signed by an authorized person. Patentee, therefore, questioned the locus standi of the applicant to maintain the revocation application while challenging the competency of the signatory to the application for revocation. According to the patentee, the signatory was authorized by the Board Resolution “to defend the Company and file suits on behalf of the company on matters that may arise out of contractual laws, corporate laws, taxation laws or any other statutory acts” but not to initiate these revocation proceedings. It was contended by the Patentee that the revocation proceedings doesn't come under the definition of "Suit".

The IPAB while deciding that the revocation proceedings comes within the purview of the definition of "Suit", placed reliance on the law laid down by the Supreme Court of India in Patel Roadways Ltd. v. Birla Yamaha Ltd., (2000) 4 SCC 91. As per IPAB, the Hon’ble Supreme Court, at paragraph 48 (sic) and 49 (sic), observed as follows:

42. “Suit, Action – ‘Suit’ is a term of wider signification than action; it may include proceedings on a petition

43. From the above it is clear that the terms “suit” is a generic term taking within its sweep all proceedings initiated by a part for realization of a right vested in him under law. The meaning of the term “suit” also depends on the context of its user which in turn, amongst other things, depends on the Act or the rule in which it is used. No doubt the proceeding before a National Commission is ordinarily a summary proceeding and in an appropriate case where the Commission feels that the issues raised by the parties are too contentions to be decided in a summary proceeding it may refer the parties to a civil court… A proceeding before the National Commission, in our considered view, comes within the term “suit.”

It was held that, the term “suit” is not to be strictly construed but construed in the manner in which it is used. It was also stated by the IPAB that the term “suit” has been used in the Board resolution in the context of ‘initiation of proceedings’ and has to be liberally construed. Therefore, any proceedings before this Appellate Board are construed to be in the nature of a suit.

I read the judgment of Supreme Court in the above case where the primary issue was whether the expression ‘suit’ in Section 9 of Carriers Act is applicable to proceeding under Consumer Protection Act before the National Commission which is a forum which is to decide complaints by consumers following a summary procedure. The term ‘suit’ was not defined in the Carriers Act nor is it provided in the said Act that the term suit will have the same meaning as in the Civil Procedure Code.

The Hon’ble court, while adopting the view that the ordinary dictionary meaning of the term will have to be taken for ascertaining its meaning, insightfully cited P. Ramanatha Aiyars Law Lexicon 1997 Edition, wherein some of the references of the term are: Suit Prosecution of pursuit of some claim, demand or request; the act of suing, the process by which one endeavours to gain an end or object; attempt to attain a certain result; the act of suing; the process by which one gains an end or object, an action or process for the recovery of a right or claim; the prosecution of some demand in a Court of Justice; any proceeding in a Court of Justice in which plaintiff pursues his remedy to recover a right or claim; the mode and manner adopted by law to redress Civil injuries; a proceeding in a Court of Justice for the enforcement of a right.

Therefore, the word suit does not mean only what is usually called a regular suit, but it also embraces all contentious proceedings of an ordinary civil kind, whether they arise in a suit or miscellaneous proceedings.

Judgment, Decree and Order

In our common usage, most of us use the term “judgment”, but what does it actually refer to? How is it different from a decree or an order? s.2(9) of the Code of Civil Procedure (CPC) defines a judgment. It states that a “judgment” means the statement given by the judge on the grounds of a decree or order. When is a judgment pronounced? S. 33 of the CPC tells us that a Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow. S.33 indicates that a decree follows a judgment.

From s.2(9), we understand that judgment is the statement of the Court on the grounds for having arrived at a decision. Every judgment delivered by a Court to which the CPC applies has to deliver a reasoned judgment. A judgment must contain the following components:
1. a crisp statement of facts of the case;
2. the points or issues for determination;
3. the decision on such issues and finally
4. the reasons for such a decision

Is this a mandatory requirement? Yes it is, but why? There are several reasons based on public interest and practical necessities. A judgment is meant to be adhered to by those to whom it applies and such people have a right to know the reasons of the Court for holding a particular point of view. This also helps them challenge the decision and the reasons for the decision in a higher forum. Again, when it goes to a higher forum, the appellate forum too has to have an opportunity to know the reasons for a decision which proves application of the mind by the Judge concerned. Must a judgment always be passed on all issues in a case? No, the decision or order of a Court on a preliminary issue too is a judgment.

Now, let us move to “decree”. S.2(2) defines decree to mean the formal expression of an adjudication which, so far as the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. “Formal expression” means the recordation of the ruling of the Court on the matter presented before it; “so far as the Court expressing it” alludes to the fact that the same issue cannot be adjudicated by or before the Court again but only before a higher forum i.e. an appellate forum (We shall discuss “review” of a decree in a later post). What is the starting point for a decree? It is the initiation of a suit from a plaint. Only a plaint may lead to a decree unless otherwise required by certain statutes under which an application is treated as a suit. Under Order 20, Rule 6 a decree must be drawn separately after a judgment. It must be understood that no matter what a particular document is ostensibly referred to as, if it starts with a plaint in a suit and fulfils the requirements of a decree, it shall be a decree.

The Code recognises certain categories of “deemed decrees”. A deemed decree is one which, though not fulfilling the essential features of a decree as required by the Code, has been expressly categorised as a decree by the legislature. The rejection of a plaint and the determination of questions under s.144 are “deemed decrees”. Only those rejections which are authorised by the CPC may be termed as decrees. What this means is an appeal may lie from the rejection of a plaint for a decree has been passed. Alternately, the Code does not bar remedying the situation by presenting a fresh plaint.

The difference between a preliminary and final decree though fairly straightforward has been the subject matter of debate. A final decree here means disposal of the suit; if a decree has been passed but the suit has not been completely disposed off, then the decree is a preliminary one. A preliminary decree is usually passed where the Court waits for the situation to mature itself to a stage where a final decree may be passed. It is usually passed in suits for possession and mesne profits, suits for pre-emption etc.

How is a decree different from an order? What is an order? S.2(14) defines order to mean the formal expression of any decision of a Court which is not a decree. The starting point for an order need not always be a plaint, it may be an application or petition. Though being a formal expression, it follows that an order need not conclusively determine the rights of parties on any matter in dispute. However, it may relate to the matters in controversy. There may be a preliminary decree, but not a preliminary order. Every decree is appealable but every order is not. Only orders under s.104 are appealable. Again, a second appeal lies to the High Court from a first appeal, but there is no second appeal from appealable orders.

The Angrez

Welcome to our blawg “Civil Devil.” This forum is meant to be a platform for discussion, deliberation and demystification of the major civil laws of India. In this very first post, I would like to start off with a short note on the “Code of Civil Procedure”, the primary and foremost statute on adjective civil law in the country. No understanding of any law is complete without knowledge of its origins and the throes of its birth. Therefore, it is justified that the history of codification of the C.P.C be the theme of this post.

 

To understand the magnitude and importance of this time-tested and proven Act (C.P.C), we must travel back to the early 19^th Century, when the English were beginning to taste success and gaining more than a toehold in the Indian subcontinent. To be precise, it traceably started with ardent arguments about the future role of British governance in India before the British Parliament on 10^th of July, 1833, by a young English lawyer named Thomas Babington Macaulay. According to him the role of the British colonizers was "to give good government to a people to whom we cannot give a free government." At the heart of Macaulay's good but not free government stood what he saw as one of the England's greatest gifts to the people of India: the rule of law.

 

Later the same year, Macaulay set for Indian subcontinent, charged with the momentous task of codifying the law of India, defining in his own words as "one great and entire work symmetrical in all its parts and pervaded by one spirit." By that time the East India Co. already administered a vast number of regional legal sources in India, based on Roman principle of "justice, equity and good conscience," but it was Macaulay's aim to streamline the unwieldy and confusing system. Despite the apprehensions that codification would bring sub-continental chaos by replacing the arbitrary and personal will with the rational objectivity of a universal law, Macaulay found British Empire under obligation to the reform of Indian society and envisioned it as "an enlightened and paternal despotism."

 

With that effort, four Indian Law Commissions were set to work intermittently on the Anglo-Indian Codes from 1834 to 1879, which resulted in the three most important contributions i.e. Indian Penal Code (1860), the Code of Civil Procedure (1859), and the Code of Criminal Procedure (1861), which were the first three codes enacted by the Government of India.  The Royal Commission of England was working on a criminal code for England, and very unsurprisingly Macaulay first set himself to drafting the Indian Penal Code and submitted its draft in 1837 itself. However, the reforms in criminal law were believed to meet least social resistance because the principles are universally understood, the real challenge was the codification of civil laws, which according to Henry Maine touched upon "the local peculiarities of the country."

 

The codification process is certainly an integral part of nation-building since those times and is usually inspired by the ones already in successful existence. And without the exception, Colonial Indian Codifiers were inspired with the Livingston's Louisiana Code and Field's New York Code, well established before them. The challenging phase during uniform codification of civil and criminal laws in India, which continued for several years, was to convince their own fellow Englishmen in India to subject themselves to laws framed for the subject population. And the Great Rebellion of 1857 played a prominent role therein, which resulted not only in heightened racial animosities and substantial state restructuring, but also in a renewed commitment to institute a codified set of laws. Doubts are still posed as to whether the Rebellion was the cause or the effect of such drastic changes in the legal status. The original Code of civil Procedure (1859) went through several changes in light of the interest of East India Company, to come to its most modern form i.e. the 1908 Act.

 

Therefore, it can be said that the codification patterns of renowned English jurist Bentham, which involves eliminating and replacing the historical dead weight of the common law traditions with a complete set of knowable and understandable rules designed to guide conduct for all imaginable actions, worked well in India. Further, it is also well-known but little explored fact that whereas the English in England firmly opposed codification, the English in India radically transformed the legal landscape in a fashion that has largely outlived the departure of the colonial masters.

 

The C.P.C spells out the entire procedure to be followed in a civil suit. The procedure is, as very well said, a means towards the realization of justice i.e. machinery for achieving the goals embodied in the substantive law. The 1908 Code has been amended by the Amendment Act 1999 and the Amendment Act 2002, with effect from 1 July 2002, to address the concerns of expeditious adjudication and cutting down the time consumed in the disposal of civil cases. However, the basic idea behind any amendment to machinery provisions has been and should be that the “means should not defeat the end.”