First published on LiveLaw
The Journey of a civil case isn’t a straight road where you start from a particular point and reach your final destination, without any interruptions. Rather a civil case is like one of those tedious Haryana Roadway’s bus journeys – with multiple halts – before it reaches its final destination.
A civil suit from its very onset (presentation of plaint) till the very end (execution of decree) generally faces countless applications by one party or the other. The decision of a civil court on these applications is referred to as an “Order”. (As opposed to a final disposal/adjudication which manifests itself in the form of a “Decree”).
Talking about Orders, Section 2(14) of the CPC defines “Order” as a formal expression of any decision of a civil court which is not a decree. These orders, it is important to note, do not usually bring the suit to an end but help in deciding some procedural issues.
To understand the term “Order” better, here are some examples:
- Decision of a court rejecting a plaint (Order VII, Rule 11) [Although, this particular order of rejection of a plaint is a deemed decree by the virtue of Section 2(2), but more on that some other day!].
- Decision of a court allowing parties to amend their pleadings (Order VI, Rule 17).
- Decision of a court permitting the addition/removal of parties to the case (Order I, Rule 10).
- Interim injunctions, appointment of receivers, and many more.
In a nutshell, a Civil Judge has to pass many orders in the life of a civil case. In this column, we will try to explain, broadly, the considerations to be kept in mind while passing these orders. We also try and share a few insights on how to actually word such orders. We conclude with a sample order on an application under Order VII, Rule 11, CPC (Rejection of a plaint)
Before picking the pen (or the keyboard), READ AND THINK.
- When presented with a problem, analyse what exactly is the party seeking from the court?
- Is the party entitled to that relief under the law?
- You must identify the applicable provision and see if the ingredients of the provision are met.
- For instance, if a party is seeking an injunction, examine as to whether it has a prima facie case?
- Whether the balance of convenience or inconvenience lies in favour of the party asking for the relief?
- Is it a case where irreparable injury will ensue if the said relief is not granted? And so on…
Don’t forget the legislative intent
Before writing any order, always ask – WHY was the law enacted?
- Every application, every provision in the CPC, has an object, a purpose. (Unlike us, sections don’t live in an existential vacuum!).They are enacted for a specific purpose. This “purpose”, “the legislative intent”, can be ascertained from either the parliamentary debates on that provision or the words used in that provision.
Standard of proof
- Understand the “degree of proof” required for allowing an application.
- Convincing a Judge to allow an application demands a certain weight or degree of proof.
- A certain conviction in favour of the applicant in the mind of the Judge, even if prima facie.
- This “degree of proof” may vary for different applications.
- It suggests – What a Judge is expecting from litigants in terms of weight of evidences at that stage?
- In order to understand this better, let us take an example – if a court has adjourned hearing of the suit due to non-appearance of the defendant. Now, to be heard in answer to the suit and for the lost opportunity to be revived, he has to put before the court “a good cause for non-appearance” (Order IX, Rule 7). Whereas, in a suit which has been dismissed for non-appearance. The order of dismissal can be set aside, only if the plaintiff satisfies the the court as to “sufficient cause for their non-appearance’’ (Order IX, Rule 9).
- Please note the difference between words like good cause and sufficient cause.
- Observing and understanding their meaning will help you to ascertain the standard/degree of proof required for allowing an application.
Too late, kindly explain the delay!
Do keep the delay aspect in mind. Certain applications are allowed till a particular stage. There is an express bar for entertaining those applications beyond that stage. For example, an application for amendment of pleadings “shall not be allowed after the trial has commenced” unless party satisfies the court that despite due diligence, it could not have raised the matter before commencement of trial. (Order VI, Rule 17). Similarly, counter claims are non-entertainable, normally, beyond a particular stage. (Order VIII, Rule 6A).
Let us move on to the next stage.
Picking the pen..
After understanding these fundamentals, let’s dive deeper into the process/format of order writing.
Just a disclaimer before we begin: There is no rigid format for a civil order. It’s all about deciding and communicating with clarity. The order should flow in such a way that a reader can easily understand what is the order about, what are the arguments set forth by the parties, how a Judge applies law, logic and reasoning to arrive at a finding. Last but not the least – the findings itself (Whether the application is allowed/disallowed). Here’s an example of the most followed sequencing scheme :
WHO is seeking WHAT?
We start-off by telling the readers who the parties are and what exactly is the order that the party is seeking.
Factual background & Arguments
Then, in brief, narrate the factual background of the case & arguments of the parties. Facts should be stated as plain as possible. Arguments should include both oral arguments as well as averments in the written application.
Once you are clear as to what the parties are saying, next step is to know – On what points, they are at variance? Each such variance is an issue. Issues act as guiding lamp posts. Once, you have stated the issue, it would be easy to decide the application. Also, always note what are the admitted /undisputed facts? As there is no variance on these points, no proof of the same is required.
Framing and articulation of issues even in an order is just for good order; for the ease of writing and reading. It is not a mandate of law. CPC mandates framing of issues and issue-wise decision only in a final Judgment. But we feel, articulating a clear “point of determination/issue” in a case helps one to write better and stay focused. It also ensures that the order does not meander and answers everything that it is supposed to. The art of raising a question and answering it oneself is a good thinking process and ensures you stay anchored.
The heart of the matter
After this comes the most important organ of the body of an order which is – The application of law, logic & reasoning to arrive at a particular finding. Always remember – you can arguably be wrong in the allowing/disallowing the application (i.e the final result) but must be absolutely thorough with the “clarity of your thoughts and reasoning”. The result of a case may be debatable, what is most crucial is laying down the decision making process and the reasons. This is the least we owe to the litigants. One must discuss here, in this section, in brief, the particular provision of law applicable to the issue and then apply that law to the case. If you know any case law applicable to the given situation then you may place reliance on that also. But don’t fetishize case laws; no need to rely on them when the provision is, by itself, clear. Rely on them only when there is an interpretative gap/nuance, or the statute, by itself, is a bit ambiguous and there is a genuine doubt as to its application.
Also, discuss the contentions of the parties here. If you accept a particular contention, then why? & if you don’t, why not. Also, please remember that orders are essentially written for the losing parties. So that they know why they lost and for the appellate courts to appreciate that. Therefore, LOPP (Losing party’s position) and FLOPP (Flaws in the losing party’s position) are important to be highlighted.
Conclude your order with an “order”
Lastly, lay out your findings. Clearly mention here : whether you are allowing/disallowing the present application. In appropriate cases, you may also impose costs on the parties which needs to be specified here.
Alright, enough with the theory, it’s time for some action ! Since we have always believed that – it’s better to “show” than to “tell”, we share a sample order (for an application under Order VII, Rule 11, CPC).
An important caveat though: please don’t mechanically emulate this! This order is hardly an ‘ideal’ and you must take this with an age-old adage : Take what’s worthy of being taken from this, disregard the rest. Legal assessments and conclusions are for the sake of understanding only and are subjective; one can, however, refer to this order for broader guidance on structure, on how to write, how to appreciate arguments, evidences, how to reason, etc. If you learn what not to do while reading this, our job is done. Remember – The best style, always, is the one that you evolve for yourself. With that, here goes:
Plaintiff is a company having office at ground floor of the property bearing No. 27, E-Block, Andheri, Mumbai (hereinafter referred as ‘suit property’) and carrying on business of sale of wool products. Defendant is occupying the entire first floor of the suit property and has been carrying on the business of sale of electronic products. The premises under the possession of defendant consists of two washrooms which are being used by the customers of the defendant. The portion under the ownership and possession of the plaintiff got damaged due to flow from the faulty drainage system as well as water pipes fitted in the portion under the occupation of the defendant. Flow has also caused damage to walls, ceiling fans and raw material. Plaintiff had informed the defendant regarding the damage but the same went overlooked. Plaintiff waited for the repairs to be carried out by the defendant but the defendant did not get the repair work done. Thereafter, plaintiff got the repair work done and spent pprox.. Rs. 1,60,000. Consequently, the present suit was instituted by the plaintiff seeking direction for the defendant to take appropriate & necessary action for repair of their washrooms so as to prevent the further damage to the property of the plaintiff & for compensation of Rs. 1,60,000. Instead of filing the Written Statement, defendant moved an application under Order VII, Rule 11(a), CPC averring that the suit filed by the plaintiff is manifestly vexatious, meritless & plaintiff has miserably failed to show any cause of action in his favour. Plaintiff has not filed any bills with the plaint to prove the alleged expenditure by the plaintiff. Also, no photographs have been annexed with the plaint to show the damage caused to plaintiff’s property. Defendant prayed that the plaint of the plaintiff is liable to be rejected under Order VII, Rule 11(a), CPC as it does not disclose any cause of action.
Plaintiff in his reply to the application filed by the defendant stated that plaint of the plaintiff discloses a cause of action in his favour. The present application of the defendant is an abuse of the process of law and the same should be dismissed with heavy cost.
(Before the actual order, at the start, you need to mention details like title of the court passing the order, suit details, description of parties, counsel’s name. Also, after the final conclusion- end it with wordings like “Order announced in the open court today i.e. <date>” followed by the signature, name, designation of the Judge & the Court’s name)
1. By this Order, I decide an application under Order VII, Rule 11, CPC moved by the defendant seeking rejection of the plaint.
2. In order to make out a case of rejection of the Plaint, Defendant states:
- That the Plaintiff has not filed any document with the plaint to prove the alleged expenditure by the Plaintiff;
- That the Plaintiff has not annexed any photographs to show the damage allegedly caused to his property.
Arguing the above, the Defendant prayed that the Plaintiff has no case and the plaint is liable to be rejected under Order VII, Rule 11(a), CPC as it does not disclose any cause of action.
3. Opposing this application, the Plaintiff argues that the present application is an abuse of the process of law. He argued that a legally justifiable cause of action is clearly discernible from his plaint and documents. The Defendant has filed the present application purely with a view to delay the case and the same should be dismissed with heavy cost.
4. Arguments heard at length and record perused.
5. Before deciding the present application, let us take a quick look at the law on the subject –
Order VII, Rule 11, CPC is the provision under consideration here. Order VII, Rule 11 provides an opportunity to the Defendant to present a threshold challenge to the very maintainability of a suit (as opposed to sustainability, which merits a trial). The Defendant, in cases of a patently meritless plaint, may apply for rejection of the plaint, and avoid being subjected to the rigmarole of a protracted entire trial.
Given the fact that such challenges are in the nature of threshold challenges, while deciding an application seeking rejection, the Court has to confine itself to the averments in the Plaint and cannot travel beyond that. The Court is not supposed to scrutinise and appreciate evidence, or test the evidence set up by the Defendant. This is simply because the Court cannot conduct a mini-trial (before a trial) and test the case meticulously at an initial stage. The Court has to, therefore, confine itself to an examination of the plaint alone.
Rejection of a plaint can be sought on many grounds, one of them being: Non-disclosure of a cause of action (Order VII, Rule 11(a), CPC). This is the ground which is canvassed by the Defendant in the present case.
6. To make his submission good, Ld. Counsel for the Defendant argued that the Plaintiff has neither placed on record the photographs of the premises which show that the damage has been caused to the portion of the Plaintiff nor has he adduced any bills to show the amount spent by him to carry out the necessary repairs. He further argued that Order VII, Rule 1, CPC makes it clear that – plaint shall contain “facts constituting the cause of action”. Such facts are missing in the present plaint.
The above submission, in this Court’s opinion, is not tenable.
7. In this case, if the plaint is looked at- in isolation, it reveals facts which constitutes the cause of action. Facts in the plaint such as “That the property of the Plaintiff got damaged due to flow from the faulty drainage system & water pipes fitted in the property of the Defendant. Flow has also caused damage to walls, ceiling fans and the raw material”. Plaintiff had informed the defendant regarding the damage but the same went overlooked. Plaintiff waited for the repairs to be carried out by the defendant but the defendant did not get the repair work done.” Without commenting on the merits of these claims, these averments clearly disclose a cause of action.
8. Cause of action, as well established, is a bundle of facts, necessary for a plaintiff to prove to get a decision in his favour. It does not comprise the evidence necessary to prove the bundle of facts. All of that is a matter of evidence and tiral. Defendant’s argument that there is no evidence to substantiate the cause of action, is not something this court can get into, at this point. The same is a disputed question of fact and, consequently, a matter of trial. The Court cannot conduct a trial before a trial at this stage and prejudge the Plaintiff’s case.
9. In view of the aforesaid discussions, the application moved on behalf of the defendant stands dismissed.
Authored by Bharat Chugh, Former Judge and Advocate, and Vishal Vyas, Civil Judge (Rajasthan Judicial Services)