13 - 08 - 15 - DR Arun - Mohan's - Presentation

The material in this presentation is adapted from the main research work:
Justice, Courts And Delays

by Dr. Arun Mohan, Sr. Advocate.
(Volumes 3 to 7 are pending publication)
Reducing the lifespan of Civil

Litigation : Tools and Techniques
Apart from pointing out the general problems and some cause
therfor, this presentation relates more to general civil procedures
and practices. It also attends to an important issue – of court costs
and delays – that we need to be concerned with.
Justice has much a wider connotation than merely settling a dispute

between two persons or determining whether a person is guilty of the
crime of which he is accused by the State. Gone are the days when
concept of justice dispensation was treated within narrow confines.
Justice, in today’s day & age and democratic set-up, includes ensuring
that every citizen gets his aliquot share of social goods & services, and
opportunities – his human rights – and also treated fairly.
1. The Larger Issue – Delayed Justice and Access to Justice
1.1 Delayed justice is a much discussed issue. There are, however, two
more issues, which, despite their seriousness, find little discussion:
(1) docket exclusion, i.e., the injustice suffered by those who lack the
wherewithal to access justice; and (2) succumbing en route, i.e., those
who come to Court, after waiting for few years, and despite being in the
right, give up (abandon) as they are unable to bear the cost and delay.
1.2 Literature on the first (docket exclusion) is meagre, although the

problem is recognised. The second (succumbing en route) is not a
problem in the developed nations, and therefore, jurisprudence there
has not addressed this issue. In our country, despite the problem being
acute, it has not been the recipient of any academic discussion.
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Reducing the lifespan of Civil Litigation : Tools and Techniques
1.3 We are a nation governed by Rule of Law. ‘Rule of Law’, in its most
basic form, is the inviolable principle that no one is above the law.
The stability of the government, the well-being of the citizens, and
economic activity, all depend on it. The term ‘Rule of Law’ carries a
very wide meaning, and includes a number of concepts within it – each
contributing to the total confidence of the citizen in the democratic set-
up and the perception of its qualitative functioning.
1.4 Rule of Law is the foundation of civilised society. It establishes a

transparent process accessible by all, and equal to all. It includes:
quality of laws; security of persons and property; respect for law in
relations between citizens inter se and between the citizen and the
government. Accessibility and efficiency of the justice delivery system
is an important component of the Rule of Law.
1.5 The economic growth rate is directly dependent on the quality of laws
and justice delivery systems. And, on economic growth depends what
the citizens can be allocated in terms of freedom from poverty and
quality of life. The Rights – Human and Socio-economic – include the
Right to clean drinking water; the Right to basic Health care; the Right
to Housing (as an opportunity); the Right to food; the Right to Education;
the Right to Development; and a host of other rights. A reasonable
opportunity for employment is also required. These rights become
mere teasing illusions if citizens lack access to justice. What are the
ground realities re access to justice ? is a question that each one of
us must ask ourselves. Fair distribution of social goods & services to
citizens without short delivery is possible only when there is access to
justice.
1.6 It is not only the corporates and the rich (with their ability to afford
expensive lawyers and incur other expenses), but also the common man,
or the typical citizen of India, who is entitled to justice – and equally.
The ‘value’ of justice to a common man cannot be measured in terms of
a table annexed to a Court Fees Act or a Suit Valuation Act.
Socio-economic Stratification
1.7 It is necessary to look at our 1.2 billion population from an economic
perspective regarding their affordability of access to justice by putting
ourselves in their shoes. Only 3% pay tax. The socio-economic strata
chart below will help us examine the problem from the standpoint of a
typical citizen. It will also help us understand the gravity.
Excerpts from Justice, Courts and Delays

3
1.8 For each strata (segment and sub-segment) of the populace – depending
on education, avocation and placement in life – let us ask ourselves a
few questions:
1. What is the extent of injustice suffered by

a citizen at the hands of another citizen
(or the State) and which remains without
effective recourse or remedy ?
2. What is the extent of injustice suffered by

a typical citizen due to short delivery of
social goods & services and opportunities
?
3. Viewed from the perspective of the

person in need of justice, what is the
affordability of access to justice ?
4. Ofthose who come to Court, how many,

being unable to bear the delays, and
mounting costs & losses, surrender to the
wrongdoer without receiving justice ?
5. What (keeping in view his economic

placement) can be done to make access to
justice effective, practical, and a reality
for every citizen ?
The ‘volume’ of the various blocks in the columnar chart
denotes the ‘size’ of the sectors (or percentage of the
population in each sector) based on annual household
income levels.
1.9
A related question is: Of the increase in GDP over the last decade, which
segment has availed how much benefit ? An effort by us to answer these
questions, for each strata (and sub-strata), will show the seriousness of
the problem. Also to be remembered is the phenomenon that accessible
and effective justice delivery improves primary (ex ante) behaviour of
citizens as also the working of the State machinery.
Docket exclusion
1.10 Equal access to a civil justice system that can uphold citizens’ rights and
fairly and effectively resolve disputes, is a fundamental component of a
democratic society. It influences citizens’ lives every day via ownership
& distribution of property, family matters, contracts, employment,

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personal safety, human rights, and the benefits made available by the
State to the citizens both as money value and as opportunity.
1.11 An efficient and effective justice delivery system in the country is

necessary to ensure that: (1) there is economic growth, for it is only
upon economic growth, that a proportionately greater chunk is
available for welfare activities; and (2) the citizens receive their ‘rights’
– aliquot share of social goods & services with minimal ‘short-changing’
in delivery of that which the State allocates for the citizens.
1.12 The bulk of the population suffers civil injustice, without even knowing
that their rights are being violated, and the few who are aware, hesitate
to take action. Many believe that for the wrongs done to them, there is
nothing they can do. Most find themselves unable to access the justice
system for financial reasons. To add insult to injury, with the delays
that take place, most of those who do come to Court, unable to bear the
wait and the mounting costs, and with little hope of recompense for
the loss, give up (surrender) en route and blame the system. Others
(who do not come to Court) quietly suffer injustice, blaming their own
destiny.
1.13 There is a cascade effect in which the emergence of a problem in one

area leads to related problems appearing in other areas of life. People
with a legal problem or those involved in a delayed court case also
experience ill-health; lose out on their earnings; and suffer family,
social and other problems. At times, unresolved legal disputes, or
delayed justice, lead to violence and crime.
1.14 Resultantly, the level of economic activity takes a downturn. The poor
suffer. These burdens fall more heavily on the middle class, who are the
worst sufferers. The poor at least get sympathy; the middle class does
not get even that – despite the fact that it is the middle class who makes
greater contribution to economic growth. The cost to the nation of this
delayed delivery, and short delivery, of justice is staggering.
1.15 In terms of access to justice, going by plain socio-economic stratification

and as a ground reality, the bulk of the population is socially and
economically disadvantaged. Awareness (of rights) is at low ebb. Even
those who are aware have little wherewithal. The cost of justice is
beyond their economic means. Their need for justice gets little attention
by way of an effective solution. All this – or Docket Exclusion – is well
known as a problem, and despite the gravity, it is not attended to.

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Succumbing en route
1.16 The other or the second problem is the phenomenon of a party in the
right, who has come to the Court,1 succumbing (or surrendering)2 to
the wrongdoer en route, i.e., before receiving justice at the hands of the
Court. He gives up the whole or part of a genuine claim, or pays up
something to remove the nuisance only because he could no longer bear
the burden of mounting costs, the obstructionist tactics of the other
side, and the court delays.
1.17 This problem – of succumbing en route – has assumed alarming

proportions. To further explain, we take a typical case. One party
(say, A) was in the right, the other (say, B) was not. The latter did
everything to put forward confusion and falsehood in his presentation
– to obstruct and delay the proceedings. After years of waiting, unable
to bear the mounting costs and the delays, the party in the right (A)
succumbs and surrenders to the whims of the wrongdoer (B). This is
succumbing en route. It means: (1) giving up the whole or a part of
the (genuine) claim; or (2) paying up something (which one should not
have) for removing the nuisance and injury of continuing litigation.
1.18 For a person embroiled in litigation, although he may be in the right,

one year, two years or even three are okay, but with more years rolling
by, and no solution in sight coupled with mounting costs, would he not
become prone to succumb to the illegal demands of the other (party in
the wrong) only in order to put an end to his ordeal? With the passage
of time, how many will survive? And when he succumbs (and ‘settles’),
has he got justice? Or is it only operating as a message to the public
at large that it pays to be in the wrong? For the few who do stand
up, what do they get in the end? Seeing their plight and misfortunes,
others also surrender.
1.19 Let us use the chart on the next page (by attempting to fill-in the blanks)
to remind ourselves of how delays in justice delivery mean decreased
accuracy of the result; increase in costs (for the party and the Court);
uncalled for gain for the wrongdoer; succumbing en route by many; and
if a party has had the nerve to survive the delays, the injustice that he
still suffers. For each type of litigation that we come across, we must
ask ourselves the aforesaid and other questions that occur to us.
1 whether as a plaintiff in the right or as a defendant

foisted with a false case by a plaintiff in the wrong
2 leaving an uncalled for gain for the wrongdoer
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1.20 Looked at in another way, when, after some years, a case is settled
or abandoned, if we were to ask ourselves: Is it a genuine settlement
or has only injustice been done in the process? The answers would be
revealing. The many ‘compromises’ (after delays in courts) also need
to be inquired into – whether it was genuine or only succumbing by the
one in the right unable to bear the wait.
1.21 To tackle this menace, we need to recognise – and penalise – the Three
Wrongs, as illustrated by the diagram below:
Substantive Law
1.22 Law regulates progressively more aspects of relationships amongst

people, i.e., between citizens inter se and between citizens and the
government (with its many departments or public authorities). The
quality of substantive law, which affects society and economic growth,
calls for improvement. There is also the need to update it.

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Procedural law and practice

1.23 Procedural law is that set of rules which help guide the adjudication
process. The quality of procedural law, as also the depth, determines:
(1) accuracy of the result; (2) the time taken; and (3) the costs incurred.
The procedural law in our country – civil and criminal – is outdated
and in need of complete reform. Further, in order to achieve greater
efficiency in justice delivery, it calls for subject-specific tailoring of
procedures, regular issue of practice directions, and attention towards
Forms, checklists and instruction notes.
‘Cost’ of justice
1.24 To initiate, carry out and complete the judicial process has a cost. That
‘cost’3 depends on two factors: (1) efficiency of the procedures & practices;
and (2) the ‘consumption’ (or waste) of court time by wrong-doers, only
to make their own unfair gain, and thereby delay the whole process
and increase costs. Explained as notional numbers, the processing of a
case, which should cost Rs.100, comes to cost Rs.500.
1.25 To explain / analyse, some of the questions to be considered are:

1 What is the true (actual) cost to the Court and to the parties
of a typical civil suit, and to what extent can that be reduced ?
2 What are the social and economic costs of: (1) inability to
have access to justice; (2) delays; and (3) docket-exclusion ?
Or simply, can the cost of justice not be reduced, and more so to ensure
greater access to justice to the masses?
1.26 In so far as reducing costs is concerned, there are three parts to it:
1. preventing consumption and waste at the instance of those who
seek to abuse the judicial system for their own wrongful private
gain (this accounts for 90% of the time consumption today);
2. improving procedures and practices for adjudication; and
3. improving functioning of the court and the support staff so as
to turn out greater productivity (per unit expense) as compared
to present, and this includes keeping the volume of work with a
judicial officer at optimal, i.e., preventing overload.
The purpose is to identify the problem and work towards a solution.
The Vicious Circle
1.27 The dynamics behind the development of the current state of affairs in
our litigation with endless delays is actually a vicious circle – in fact,
vicious circles. The component element of every such vicious circle –
each with its individual feedback loop – needs to be analysed. Only
thereafter would any meaningful tailor-made procedural reforms and
3
to the Court and to each of the two parties
8
practices work as an exogenous factor to break the loop of the various

adverse elements – primarily by removing the incentives that create
the requisite momentum for that loop, or reversing a few.
1.28 It will also be worthwhile to state here the elements – the cause and
effects – in table form so as to identify the feedback loops:
1. The lesser the courts’ the greater the: (1) generation of
attention towards full uncalled for litigation; and (2) exercise of
restitution and realistic skills for achieving delays by impurity
costs (which translates in presentation and deployment of
as ‘profit’ for the obstructive tactics.
wrongdoer) …
2. The greater the the greater the: (1) creation of
impurity in presentation controversies that do not exist and
… ‘expansion’ of those which do; (2)
time to final disposal; (3) costs to the
opposite party and to the court; and (3)
probability of error in the end result.
3. The greater the the greater the: (1) time required for
impropriety in final disposal; (2) costs to the opposite
conduct … party and the Court; and (3) probability
of error in the end result.
4. The greater the courts’ the greater the incidence of impurity in
tolerance to impurity pleadings & evidence, which creates and
in presentation and / or then expands the scope of litigation, and
impropriety in conduct the greater the incidence of impropriety.
…
5. The lesser the courts’ the greater the willingness to plead
willingness to prosecute (aver) falsehood, produce false documents
for perjury and like or deny genuine ones, adduce false
offences … evidence, which then delays litigation
and causes injustice.
6. The greater the the lesser the productivity for every unit
overload, i.e., cases in of court time & resources, and the poorer
one court beyond the the quality of the end result.
optimal number …

9
7. The greater the the greater the: (1) incidence of the

delay, or time to party in the right succumbing to delays
final disposal … and other forms of coercion and thus
not receiving justice; (2) profit for the
wrongdoer;
(3) generation of uncalled for litigation;
(4) impurity in presentation;
(5) impropriety in conduct; (6) cost to
the parties and to the court; (7) error
in the end result; (8) reduction in the
productivity per unit of court-time;
(9) extent of docket-exclusion and denial
of access to justice; and (10) stifling of
economic growth and social welfare.
1.29 Perhaps the importance and the role of these various elements as
creating the many vicious circles has not been appreciated. Unless
we do that, we cannot go about (to begin with) changing our attitudes
and practices, though complete procedural reform with subject-specific
tailoring of procedures is the ultimate goal.
The Resources frittered away / misused
1.30 Today, 90% of our court time and resources (civil courts) are consumed
in attending to uncalled for litigation, which is ‘created’ and ‘carried on’
only because our current procedures and practices hold out an incentive
for the wrongdoer. Of the two parties involved, one receives less than
full justice. Then there are many more in the country, in fact a greater
number than those who approach the Court, who suffer injustice
because either they have little access to justice or lack awareness and
confidence in the justice system.
1.31 To express pictorially the extent of bona fide litigation (claim or defence)
vis-à-vis uncalled for litigation that consumes court resources, the pie
chart from pp100 of the research work is reproduced on the next page.
1.32 This uncalled for component of litigation (claims and defences), together
with obstructive and delaying tactics by the party who seeks to benefit
from the delays, takes away the bulk – 90% – of the court resources.
Resultantly, the high costs, delays, and rationed time cause serious
prejudice to delivery of justice in the country. If we are able to prevent
this waste of resources, there will be greater justice in the country.
Filtration – Source Control
1.33 In order to address the seemingly insurmountable problem of court
delays, as part of the research, a Root Cause Analysis was carried out.
Apart from interviewing hundreds of persons, a number of decided
10
case records were obtained and analysed by using reverse engineering.

It revealed that a sizeable amount of court resources are consumed
in treating the symptoms rather than controlling the problem at the
source. ‘Prevention is better than cure’ goes the old adage, but do our
procedural rules and practices pay attention to it ? Perhaps Not.
1.34 To prevent this waste, here, one endeavour is to demonstrate: Whether

before coming to the Court, the parties ‘filter’ or purify (i.e. improve)
their perception4 before actually making the presentation,5 or, instead,
they6 deliberately add impurity, i.e., ‘worsen’ the same. The former
is assisting the Court, which is a duty. The latter is obstructing the
judicial process, which is undesirable, but still occurs and everyone is
aware of it. Nothing, however, is done in that regard. What applies to
presentation equally applies to party conduct before the Court.
1.35 The ‘Source’ of the uncalled for component of litigation may be first
explained. A simple illustration would be that for preventing mosquito
bites, it is more important to look at the breeding grounds (stagnant
water) than at (only) fumigation, mechanical barriers or chemical
creams. A more apt analogy for the present discussion would be of
water pollution, where we first look at the source and only then at
filtration. See also the illustration infra, which seeks to depict how the
extent of the controversy can be reduced at each successive stage.
4 by carrying out a: ‘Stop, think, investigate and reverify.’

5 whether as pleadings, documents, evidence or contentions
6 usually, one of the two parties in the adversarial system
11
1.36 To tackle court delays, the first area of focus ought to be Source control,
i.e., before or at the time pleadings are presented to the Court. This
can be done by recognising
human behavioural patterns
and ensuring that there are no
incentives left for wrongdoing
and there are penalties for
those who deviate.
1.37 We may, here, try and look into

the thought process of a person
in the days before he comes to
the Court with a plaint, and
equally of a defendant in the
days before he files his Written
Statement in response to the
summons of a suit from the
Court.
1.38 During this period, whatever

initial perception of facts
and law7 a person may have
initially had, does he leave that
perception as it is ? Or, does
he try and ‘filter’ (Stop, Think,
Investigate and Reverify) so as
to improve upon it ? Or does he
deliberately add impurity, i.e.,
worsen it ?
1.39 Unless we ponder over these

questions and find an answer
ourselves, we will not be able
to do justice in our endeavour
at removal of delays and access
to justice. It is axiomatic that
his thought process / behaviour
will be influenced by: (1) the
profit / benefit; (2) the risk, i.e.,
his assessment of what will
7 on which he bases his claim / defence

12
ultimately be the Court’s response. This is why it is important for

the judicial system to send out the right message and correct the
impressions harboured by litigants today.
1.40 Litigation having commenced, judicial procedures can be likened to a

multi-stage filter – where the ‘pleadings’ is the first stage and there
are several stages before we reach to the trial. The schematic on the
previous page seeks to depict the procedural stages. The objective,
at each stage, is to: (1) intercept the impurity8 during the process,
i.e., ‘filter’; and (2) obtain information & admissions, and do so in
search of truth9 and thus narrow down, or even eliminate, the factual
controversy.
1.41 Taking the analogy of air and dust filters, the illustration below seeks
to depict how the aforesaid five stages act like, or ‘operate’ as, successive
filters (in series).
1.42 Stated simply, the civil judicial process is a multi-stage filter. The
five stages are: (1) pleadings; (2) preparatory procedures; (3) pre-trial,
8 irresponsible or false denials, twists and distortions, and even concealments

9 See Maria Margarida infra.
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summary and issues; (4) trial, recording oral evidence; and (5) final
arguments.
1.43 We do not ‘manage’ the case – oversee the operation of the entry point
and other early stage ‘filters’ – so as to narrow down (or hopefully
eliminate) factual and other controversies at each of these early
stages. In fact, we allow controversies to be created and expanded.
Even the fourth stage filter (recording of oral evidence at the trial) is
not properly deployed in the sense that the not so relevant and even
repetitive evidence may be let in, and evidence on points which are
or ought not to be in controversy is let in. It is only at the fifth stage
(arguments) that attention to ‘what the rival cases are’ and ‘what the
decision should be’, is given.
1.44 Continuing, another schematic of the judicial process, appearing below,

seeks to point out the typical party’s (one of the two in the adversarial
system) thinking and approach at each of the successive stages.
1.45 The schematic on next page seeks to point out why there is impurity in
presentation of fact and law, and impropriety in conduct.
1.46 Analysing this phenomena as also the thought process of a typical

party before the Court – more importantly, the influences that operate
upon such a party, including the opportunity ‘to obtain uncalled for
gain from a wrong’ that abounds – will help us to identify the precise
problem area. This, in turn, will help us to develop procedural tools and
practices that will work to prevent worsening and, instead, encourage,
in fact enforce, improvement, i.e., make a move towards purity in
presentation and propriety in conduct.
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1.47 At
the risk of repetition, the operation of this phenomena may be
further explained. The cost (risk)-benefit ratio is directly dependent on:
the benefit which will come in as the other party succumbing
en route and leaving an uncalled for gain with him; or
even if it is a contest to the end,10 the ‘sufficiency’ of the
Court’s orders towards restitution and costs & penalties.11
In other words, the determining factor is a wrongdoer’s perception of
the probability of the other party getting exhausted, succumbing to the
delays and ‘settling’ with him; and failing that, the Court ultimately
awarding what kind of restitution, costs and fines against him – paltry
or realistic.
1.48 Emphasis, therefore, must be laid on making the parties (and lawyers)
aware of the need to: ‘Stop, Think, Investigate and Reverify’, before
signing pleadings, making affidavits, giving evidence and even putting
forward contentions. If we are able to enforce this, a substantial chunk
of the uncalled for component of litigation that clogs our courts today
will be prevented and a fair part of our problem would stand solved.
1.49 Thus, it boils down to recognising the operation of the procedural rules
and practices as being the main influencing factors in the days prior
to affixing his signatures on the pleadings and their filing. And, if the
practices are such that give the litigant one kind of message, his mind
behaves in one way, and if they give another kind of message (as they
presently do), his mind will behave in another way. In other words, his
10 once the case is decided, or the wrong exposed

11 as also the costs of his own effort and that of his legal team
15
actions and omissions are primarily influenced by what he perceives

and assesses as the cost (risk)-benefit ratio.
1.50 Such being the scenario, what is the quality of input being presently
received by the judicial system (as also the ‘conduct’ that it faces) from
one of the two parties and, therefore, the productivity, is best left to
the reader’s own experience, analysis and consideration. There can,
however, be no doubt that all of us want the judicial system to function
more efficiently than it does at present. To achieve that, it is important
that we ensure: (1) purity in presentation; and (2) propriety in conduct.
1.51 The moment we begin making an effort in this direction, civil court
resources, which are today consumed in attending to impurity in
presentation and impropriety in conduct, will be saved. Once the
message spreads, the malaise will begin reducing substantially and
make way for lesser incidence of succumbing en route (surrender) and
open the courts’ doors for new (fresh) genuine litigation – for those who
today suffer injustice in silence for lack of confidence in timely delivery
of justice.
Criminal Justice System
1.52 The criminal justice system too calls for attention. Focus is required
not just on the severity of the punishment, but attention is first
required towards all those factors as would prevent occurrence of
crime and, should one occur, minimise the possibility of it escaping
detection. Citizens do not have to live in insecurity – or fear. Policing
and investigation require an overhaul. Evidence gathering and
presentation need to have greater thoroughness and integrity. The
thought process of the typical offender in the 30-second period before
he embarks on the crime calls for a study, and remedial measures.
1.53 Then, apart from reducing the current overloads12 or establishing

‘more courts’13 the criminal court procedures and practices also call for
reform. Although this paper is primarily addressing civil litigation,
for the sake of comprehensiveness, the following four flow charts to
indicate the criminal process as per the CrPC 1973 are also included on
the next few pages. It is only intended to give the younger lawyers a
better insight of the procedural law that is provided by the CrPC 1973
as it stands.
12 An overload on a court drastically reduces its productivity. Parties become

complacent, the Court cannot be strict for default, for there is not enough
time to attend to all the cases that are posted.
13 so as to not suffer from the inefficiencies of overloading
16

17

18

19

20
Generally
1.54 Stated simply, speedy and affordable justice is the sine qua non of
human rights, social welfare and economic growth. Improvement in
the quality of substantive laws and the efficiency of the justice system
can help boost the annual GDP by several per cent. The situation being
acute, some drastic reforms are required.
1.55 These are, however, measures that will require attention on several
fronts, many of which are being addressed in the main research work.
This presentation raises points to ponder and then puts forward
proposals that do not need statutory reform, i.e., what can be done as
a ‘practice’ within the existing procedural framework. In fact, taking
such an approach will make us feel less frustrated at the end of each
day – about what we have done as our duty towards society.
2. What Motivates Civil Litigation and Delays?
2.1 Continuing our quest to understand, and expatiating on the latent
incentives, the question, once again, is a broader one: What is genuine
litigation and what is not (i.e., not bonafide)? What motivates non-
genuine civil litigation ? Further, is the putting forward of pleas and
using other procedural tactics over a period of time, simply to ‘postpone’,
not an abuse of court procedures ? The answer is a clear ‘Yes’. Court
time is consumed, one may say ‘wasted’, only in the hope of one party
that the other party will succumb and ‘settle’.
2.2 The reasons for this are: (1) the incentive of uncalled for gains from such
litigation; and (2) absence of penalty for the wrongdoer. In fact, both
these are not shortcomings of our statutory law, but are shortcomings
of our practices – in not caring to order full restitution, realistic costs
and appropriate penalty.
2.3 Examining it further, there is a difference between putting forward a

claim (or a defence)14 on the one hand and putting in effort (and some
expense) to insert falsehood, and obstruct & delay the court proceedings.
To the one in the wrong, it takes little effort and cost to create obstacles
and it could take 50 times more effort for the other (i.e., for the one in
the right) to overcome the obstacles / hurdles so placed. Court time is
wasted. Naturally, costs rise and delays mount. Frustration sets in.
2.4 During the course of research, it was found that the two are polar
opposites, and although the second is in abundance before our courts,
14 and preferably doing so after a ‘Stop, Think, Investigate and Reverify’

21
somehow or the other, no effort has been made to study this phenomenon
and apply remedial tools.
2.5 At this stage, it would be worthwhile asking oneself with a file of a

typical case that has gone on for more than a few years, the following
questions with respect to the party who has lost:
1. How much was the court time consumption (as hours) and
the delays (as months) for adjudicating the non-bona fide
claim / defence?
2. How much was the court time consumption (as hours) and
the delays (as years) in attending to the obstructing &
delaying tactics?
An answer of 80% plus will not come as a surprise.
2.6 Research reveals that a major part of the court’s time is consumed in
attending to: (1) the unnecessaries, falsehood, confusion and other
impurities in presentation (pleadings, etc.); and (2) obstructions and
improprieties of conduct. Further, these are put forward before the
Court not out of ignorance, but because the wrongdoer calculates that
by doing so, he will in the end make a gain – and he actually does so.
2.7 Informal surveys also show that the bulk of the litigation accrues for
this reason and even the ‘compromises’ that take place are usually such
by which the party in the right gives up something (or pays something
under the table, i.e., in unaccounted cash) which he should not have,
only because he can no longer bear the costs and the wait.
2.8 To illustrate, every loan is not to end in a suit for recovery, or every
consumer transaction in a claim before the consumer forum. A contract
need not result in litigation only because the wrongdoer sees an un-
called for gain in breaching the contract. For the same reason, every
lease on its expiry, or a licence on its revocation, cannot be allowed
to convert itself into litigation. Or, a servant employed in a premises
(whose legal status is of a licencee) files a suit for injunction not to be
dispossessed, making all kinds of averments and, maybe, even filing a
forged document, and then demands a bagful of money for withdrawing
the suit. Presently, it is that which happens all the time – because
a person who is not bound by his own morality feels that it will be
beneficial to foist a false case and then make the other contest it.
2.9 It becomes profitable because it is a general impression (and not a wrong

one), that there is a fair chance that the opposite side (i.e., the party in
the right) would tire out and succumb, i.e., pay up something or give up
22
something which will be uncalled for gain for the wrongdoer. Secondly,
even if he has the nerves to survive till the end, the courts will award
only a paltry amount as mesne profits and costs, and, therefore, there
will, in any case, be an uncalled for gain for him.15
2.10 To achieve such ends, false pleas are raised and false documents filed,
and so without fear because the impression is that the Court will never
order prosecution for perjury.
2.11 The falsehood exposed, often, the party in the right is told that: If you
do not absolve me by withdrawing your plaint (or WS), I will continue
(with the litigation). Tired and weary, and exhausted as he is, he
accepts less than his real due (or pays up money) and also lets go a
punishable wrong (perjury) against the system.
2.12 This is how uncalled for litigation accrues and then expands. The
result is that courts are overloaded, costs multiply, there are delays in
justice delivery and there is large scale docket exclusion.
2.13 One knows from experience how long it takes for justice to be delivered.
Why does this happen ? What is the effect and how can this be prevented ?
The questions may loom over us, but the answer is simple. The ability
to tire out the other and then get away with the wrong (un-called for
gain) operates as the incentive. Unfortunately, this incentive drives
most of the litigation, and it must be identified and removed.
2.14 The creation and continuation (with obstructionist tactics) of most of

the civil litigation in our courts can be attributed to one fact, and one
fact alone, and that is the impression harboured, and not wrongly, that
(putting it in a serial order):
1. the other side will get tired and settle for less or pay up;
2. even if he does not, the Court will grant only a paltry
sum as mesne profits;
3. costs awarded will be only token and not realistic; and
4. for the wrongs, there will be no penalty.
If the party knew that one day he will have to pay for his wrong, he
would have approached it differently.
2.15 In sum, why does all this happen? It happens because, till the recent
past, the courts (at the time of finally deciding the matter) did not spend
a few minutes to look into this factor (or simply examine the record from
15 In many ways, it can even be termed as extortion or
uncalled for gain by misusing the process of courts / law.
23
this angle) and then did not: (1) order restitution and impose realistic
costs; and (2) impose penalty for wrongdoing. Fortunately, the move
to do so has now begun. The day we start doing so often, things will
change.
2.16 Before proceeding on thoughts towards solution, some observations

from the Supreme Court may be cited. In Dalip Singh vs State of
U.P,16 the Supreme Court noted:
1 For many centuries, Indian society cherished two basic values of
life i.e. ‘Satya’ (truth) and ‘Ahimsa’ (non-violence). Mahavir, Gautam
Buddha and Mahatma Gandhi guided the people to ingrain these
values in their daily life. Truth constituted an integral part of the
justice-delivery system which was in vogue in pre-Independence
era and the people used to feel proud to tell truth in the courts
irrespective of the consequences. However, post-Independence
period has seen drastic changes in our value system. The
materialism has over-shadowed the old ethos and the quest for
personal gain has become so intense that those involved in litigation
do not hesitate to take shelter of falsehood, misrepresentation and
suppression of facts in the court proceedings.
2 In the last 40 years, a new creed of litigants has cropped up. Those
who belong to this creed do not have any respect for truth. They
shamelessly resort to falsehood and unethical means for achieving
their goals. In order to meet the challenge posed by this new creed
of litigants, the courts have, from time to time, evolved new rules
and it is now well established that a litigant, who attempts to
pollute the stream of justice or who touches the pure fountain of
justice with tainted hands, is not entitled to any relief, interim or
final.
2.17 In Maria Margarida Sequeria Fernandes vs Erasmo Jack de Sequeria

(Maria Margarida for short),17 the Supreme Court observed:
33 Justice system will acquire credibility only when people will be
convinced that justice is based on the foundation of the truth.
35 What people expect is that the Court should discharge its obligation
to find out where in fact the truth lies. Right from inception of the
judicial system it has been accepted that discovery, vindication
and establishment of truth are the main purposes underlying the
existence of the courts of justice.
39 … 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
16 2010-2 SCC 114

��
17 2012-5 SCC 370 = AIR 2012 SC 1727= 2012-3 SCALE 550
24
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 minimised.
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. …
See also similar observations by the Supreme Court in A. Shanmugam
vs Ariya Kshatriya Rajakula18 and Kishore Samrite vs State of U.P.19
2.18 To conclude this topic, in fact to reiterate, the major problem with civil
litigation and court delays can be identified, and placed, under three
broad heads:
1 The practices with regard to pleadings, which are the
foundation of the litigation, far from encouraging statement
of truth, actually offer an incentive for mis-statements, mis-
representations, concealments and confusion;
2 The reluctance to ‘manage’ the case by deploying preparatory
and pretrial procedures and thus reduce the width of the
controversy going to trial; and
3 The reluctance of courts to Order: (1) restitution pendente lite;
and (2) realistic costs – or simply, make the successful party
whole.
Can we delay giving our attention to these three? Perhaps not. Per
force, in order to achieve efficiencies and reduce costs of justice delivery,
the cost (risk) - benefit perception of the wrongdoer must be targeted.
In an endeavour to make the best use of existing procedures, and

in any case, reminding ourselves of certain fundamentals, we may
address some major shortcoming in our practices today–of not giving
sufficient attention to: (1) an important principle; (2) Pleadings; and
(3) Other procedures and practices.
18 [27.04.2012] 2012-6 SCC 430 = AIR 2012 SC 2010

19 [18.10.2012] 2013-2 SCC 398 = 2012 (10) SCALE 330
25
3. Fact, Law and Application of Law

3.1 The problem areas having been identified, we proceed in our effort
towards speedier justice. The larger goal being justice delivery, an
analysis of the problems, as surveyed and researched, revealed that, as
a primary area (and by reason of a shortcoming in our legal education
system), sufficient attention is not paid to the distinction between fact,
law, and application of law.
3.2 In Grand Vasant Residents Welfare Association vs DDA,20 a Division

Bench of the Delhi High Court noted:
57 Inall judicial adjudication in our courts, it is: (1) fact; (2)
law; and (3) application of law. The first (fact) has three sub-
elements: (1.i) pleadings; (1.ii) documents; and (1.iii) evidence,
for then follow: (2) law (selection & interpretation); and (3)
application of law to the facts as established. …
3.3 The generational bind further exacerbates the problem. In any case,
to be able to tackle the mass of irrelevance as also the false / baseless
factual averments, and other legal contentions that are thrown before
our courts, we need to be better equipped with our understanding of
certain fundamentals – the distinction between: (1) fact; (2) law; and
(3) application of law.
3.4 Today, bulk of the court time is consumed in adjudicating controversies

which arise because one party (of the two) knowingly puts forward false
averments, concealments or denials of fact in the pleadings21 – all for
the motives noted earlier, and with no fear of penalty. To help tackle
this problem, it is not only useful but imperative for each one of us to be
well versed in understanding this distinction as also the ‘types’ of facts.
In any case, inculcating a technique to readily identify and segregate
the three, and then approach them accordingly, enhances grasp and
fosters clarity, as also accuracy, in the decision, and generally, the
speed and quality of working.
3.5 The term ‘fact’ has a variety of meanings.22 It may signify a state
of things, i.e., an existence or a motion; an event or incident or
occurrence; an act, action or deed; a thing done; an effect produced
or achieved; a reality as distinguished from supposition or opinion; a
20 LPA 775/2003 decided by a DB of the High Court of Delhi on 5.03.2014

21 and also adopts other tactics to stall the proceedings
22 Per Section 3 of the Evidence Act, it means and includes any thing, state
of things, or relation of things capable of being perceived by the senses
and includes any mental condition of which any person is conscious.
26
truth as distinguished from fiction. Facts can be both physical and

psychological. All rights and liabilities are dependent upon, and arise
out of, facts.
3.6 As distinguished from ‘law’, a ‘fact’ may be regarded as that which has
occurred or is (or was) in existence; or as that (state of things / affairs)
out of which the point of law arises; or that which is asserted to be or
not to be; and is to be presumed or proved to be or not to be for the
purpose – after applying the law – of granting or refusing to grant, the
relief prayed.
3.7
Broadly stated, ‘facts’ can be described as being of three types:
1. Material facts: – Facts that may or may not be in dispute, but are
necessary to be averred so as to constitute a cause of action for a
claim, or form the basis of a defence.
(once the process of fact-finding is complete and before the process
of application of law begins) Any fact that is of consequence to the
determination of the action.
2. Facts-in-issue: – They are the principal matters in dispute or
the facts to be proved. They arise from pleadings,23 but do not
include such of the material facts which are not in dispute. An
‘issue’ arises when a material proposition of fact is averred by one
and disputed by the other, and if in the chain of facts and events
it becomes necessary to adjudicate upon it, it is called a fact-in-
issue.
3. Evidentiary facts: – They are those facts that are not by themselves
‘material’ to constitute the cause of action or the defence, but
become necessary to be brought on record as evidence so as to
(directly or by inference) prove or disprove the facts-in-issue.24
The term ‘Ultimate fact’, denotes a combination of material facts which
lead to the main result (consequence).
3.8 Material facts are those that are of consequence to merits of the litigation
while relevancy, in turn, is function of whether evidence tends to make
the existence of a material fact (defined as aforesaid) more probable or
less probable than it would be without evidence. ‘Material facts’ of
a case usually correspond to the elements prescribed by the statute
or principle of law invoked. Statement of a material fact necessarily
includes a degree of detail, i.e., particulars and evidentiary facts. There
is an overlap and this is best depicted by a Venn diagram on next page.
23 and also from the contents of a document, answers

to interrogatories, statement before issues, etc.
24 A material fact that, by reason of a dispute raised, has become a fact-in-issue.
27
3.9
The degree of detail
and particulars, which
constitute the material
fact, will vary according
to circumstances. It will
be less in respect of those
material facts which are
not likely to be in dispute
and more in respect of
those material facts which
are, or are likely to be,
disputed. Further, the
number of words required
to state a material fact can
(illustratively) vary from
three on the underside to 300 on the upper. How many need to be
used? – depends on the fact and the context in which it is being averred
or responded to. There is also the ability at editing before presentation
where the useful content is maximised – by including details,
particulars, numbers, dates, etc. – while the number of words used is
minimised – by removing redundancy, repetition and also those words
removing which does not reduce the useful / necessary informational
content.
3.10 The material fact, and also its relationship with the evidentiary
facts, having been described, we may now proceed with a few other
descriptions. The diagram on the next page represents the relationship
of the material facts25 to the Ultimate fact, the Particulars and the
Evidentiary facts.
3.11 Documents, including absence of documents / record, have a completely

different bearing today than they did when the CPC was framed (1908).
Therefore, it is necessary to attend to documents as proving (or
disproving) facts. Absence of a document, where in the ordinary course
one ought to have existed, has today much more to say than it did in
the past. By itself, the absence constitutes an important evidentiary
fact. The probative force can be medium or strong or, at times, can
even be conclusive. The distinction between ‘proof of a document’ and
‘what the document proves’ has always to be kept in mind.
25 also called in the American literature as the ‘penultimate facts’

28

29
3.12 The diagram on the below is a slight variant of the diagram on the
previous page because it depicts litigation based on a document, say,
a Will, a Contract, a Sale Deed, and the like. Here, it assumes the
role of a principal document, rather than remaining as an evidentiary
document/s – the distinction being further depicted by the two
comparative diagrams on the next page.

30
3.13 A material fact when ‘admitted’ by the opposite party ceases to be a

fact-in-issue. Similarly, an evidentiary fact can be ‘admitted’, or its
proof ‘dispensed with’, in which case it can operate, by a process of
inference / presumption, to prove or disprove a fact-in-issue.
3.14 Proceeding in greater detail, the diagram on the next page seeks to
emphasise that only those material facts which are disputed, ‘emerge’
as facts-in-issue and thus require evidence.
3.15 The present malaise (after 2002) of the Affidavit Evidence (examination-
in-chief) virtually repeating the pleadings is because this ‘difference’
31

32
between material facts and evidentiary facts, and that while admitted
facts do not require evidence, facts which are disputed require placing of
evidentiary facts and documents to prove / disprove, is not appreciated.
3.16 In a criminal prosecution, the material (or penultimate) facts

correspond to the elements of the offence as defined by the statute and
are required to be proved beyond reasonable doubt by the prosecution,
by adducing evidence. The position here is slightly different. This is
sought to be depicted by the diagrams on next page.
3.17 Then, in a criminal prosecutions, some evidence may be direct, but

a fair amount can be, in fact usually is, circumstantial. In such a
situation, the alleged material fact/s have to be taken as ‘hypothetical’
for working purposes, i.e., for discerning from the evidentiary facts
(circumstantial evidence) whether the material fact/s were existing or
not existing, i.e., stand proved or not.
3.18 Moving then from fact to law, ‘law’ can be classified into two parts –
Substantive and Procedural. In broad terms, substantive law may be
defined as those rules and standards of general application by which
the State regulates human affairs, i.e., defines the rights & duties of
citizens. The part which deals with procedures for enforcing those
rights & duties, i.e., is designed to manage ongoing litigation, is called
procedural law.
3.19 This is treated as part of fact-finding. The law is that which is laid
down by the legislature as statute, or absent a statute, developed by the
courts as common law. There is also the interpretation of the statutory
law by the courts. The task, after the first step of fact-finding, for
the second step, is to ascertain, select and interpret the law, and then
for stage three, apply such law to the facts or stated differently, test
the material facts against the elements of law / legal principle. All
legal principles proceed on a hypothetical (generalised) set of facts and
provide for consequences if those facts occur and that is the legal rule.
3.20 On the fact-law question, in common legal parlance, oft-heard phrases

are: (1) questions of fact; (2) questions of law; and (3) mixed questions of
fact and law. Very many times, it is more convenient, and efficient, to
split the third into separate components (of fact and law).26
26 It will come as a surprise that on such ‘splitting’,

the factual component would be predominant.
33

34
3.21 Expatiating, the questions of fact in a given controversy are those

questions which may be determined without reference to any law as
such. The Court adjudicates upon the existence or non-existence of
disputed facts without calling to its aid the consequences that law may
attach to the determination.

35
3.22 In so far as law is concerned,27 the effort required is in relation to

application of that law to the facts as admitted by the parties, and /
or if there has been a dispute, to the facts as found by the Court upon
evidence as part of its process of fact-finding. It is only after the chain
of material facts has been drawn and the disputed questions of facts
(facts-in-issue) have been resolved that the next step of attending to
the questions of law arises.
3.23 Properly analysed, the question of law in this context has two steps:
ascertaining and interpreting the law; and applying such law to the
facts, and by that process, coming to a conclusion as to the respective
rights and liabilities.
3.24 Here, instead of beginning with case law, first search for and select the
applicable statute/s. Once statute has been found and selected and the
text (bare Act) is in our hand, we go back to: (1) the first principles; and
then to (2) the rationale behind, or the objective of, the statute. Prior
to carefully reading the text of the statutory provision, consideration
of these two will take only a few seconds, but will give much greater
clarity. The case law (only the latest) may be looked at thereafter.
Forming a habit of this sequential process has immense utility to offer.
3.25 Often, legal rules and legal standards are worded in indeterminate
terms, as for example, ‘reasonable’, ‘negligent’, ‘sufficient or good cause’,
or ‘bonafide requirement’. Specific rules provide the important virtues
of certainty and predictability, while standards fixed as aforesaid
afford flexibility, allow for more equitable solutions, and for a more
informed development of the law. This is where the Court has to first
‘judge’ (interpret) the standard – usually by relying on first principles
and the case law – and then only proceed to match (test) the established
facts against the standard so understood.
3.26 If we were to segregate, it will be found that: Of the time & resource
consumption for deciding a typical case in our courts today, 95% is in
relation to disputed facts;28 0.4% for ascertaining and understanding
the law; 4.5% for application of law to the facts; and only 0.1% for
27 The term question of law is sometimes referred to when examining the

relevancy and admissibility of the evidence in relation to a fact-in-issue,
i.e., in proof or disproof thereof. This is a question of procedural law and
not substantive law. Similarly, a perverse finding of fact is an error of law.
28 A portion of it involves questions of procedural law of evidence
– in relation to relevancy or admissibility in evidence.
36
development of law.29 Many questions appearing to be of law are those

where the basis lies in a false averment / plea of fact.30
3.27 As noted earlier, in every civil dispute, there are certain material facts
which are admitted and others which are in dispute. For those that are
29 i.e., where the matter is not covered by law or calls

for interpretation of law or development of law
fn The material facts which a plaintiff may have averred as part of his claim, or a
defendant as part of his defence, usually have to be re-arranged, simplified and
then re-stated as a part of fact-finding.
37
in dispute, documents and evidentiary facts are placed on record and

they (the probative value or persuasive force of each) are then weighed
as part of fact-finding. The schematic on previous page seeks to depict
and distinguish the three areas in the judicial process – (1) fact; (2) law;
and (3) application of law.31
3.28 Only when the fact-finding process (or the first task / function) is
complete that the principle of law is culled from the statute and the
case law is selected, interpreted, understood (second task / function),
and then for the third task / function, law is applied to the facts as
established, or the facts are tested against the elements required by
the legal rule / principle. Depending on whether they fit in or do not
fit in, the result or the judgment is announced and the formal order
follows.
3.29 That was on the civil side. The process – as also the distinction between
the three functions – is similar on the criminal side except that, there
is usually no defendant’s (accused’s) evidence, and instead, it is the
presumption of innocence which operates as a weight in the pan of
the judicial scales against the persuasive force of the prosecution
evidence.32 The schematic on the next page depicts that.
3.30 In case the accused has adduced any evidence, its weight is also placed
alongside the presumption of innocence, to be weighed in the judicial
scales, but the more important part is that the prosecution evidence
has to generate a persuasive force which is depicted by the evidentiary
material on the left. The ‘document’ [DOC] here often is, or could
well be, in the nature of an article, or even a forensic science report.
Further, in the civil proceedings, it is preponderance of evidence, but in
criminal proceedings, the persuasive force of the prosecution evidence
has to generate belief in the mind of the judge to a degree (or standard)
beyond reasonable doubt.
3.31 A deeper understanding of the principles regarding the difference

between facts, law and application of law, as also a constant reminder,
31 The figure shows only Material Fact-3 in dispute and the evidence in relation
thereto. There could be more material facts in dispute. The bottom row
takes five material facts on a notional basis as having been finally established
(whether on admission or on fact-finding upon evidence), and to which facts the
law is applied.
32 The presumption of innocence operates as an invisible weight in one pan
of the judicial scales – and substitutes what in a civil case is the evidence
of the Defendant.
38
will enable us to more quickly grasp the rival cases being put forward,
and to separate the grain from the chaff. Or simply, carry out the legal
process with greater ease and certainty. 33
fn Same as the last footnote, except that here, it is the facts as alleged by the
prosecution in the charge sheet, which if established at the trial are to be
considered for being tested against the elements of the statutory provision for
the offence/s.
39
4. Pleadings – the Filter and the Foundation

4.1 The problem, the incentives that fuel uncalled for litigation and
some basic principles for judicial adjudication having been stated, we
proceed further. After a dispute has arisen, one party comes to the
Court with his plaint / petition. The Court issues summons / notice and
the other party responds with a written statement, and there may be a
replication. These constitute the pleadings.
4.2 Here, the recent decisions of the Supreme Court may be excerpted.
In Maria Margarida:34
52 A Pleadings are foundation of the claims of parties. Civil litigation is
largely based on documents. It is the bounden duty and obligation
of the trial judge to carefully scrutinize, check and verify the
pleadings and the documents filed by the parties. This must be
done immediately after civil suits are filed.
53 Pleadings are the foundation of litigation. In pleadings, only the
necessary and relevant material must be included and unnecessary
and irrelevant material must be excluded. …
After referring (in paras 54 to 60) to foreign law, the Court continued:
61 In civil cases, pleadings are extremely important for ascertaining
the title and possession of the property in question.
71 … While dealing with the civil suits, at the threshold, the Court
must carefully and critically examine pleadings and documents.
72 The Court will examine the pleadings for specificity as also the
supporting material for sufficiency and then pass appropriate
orders.
74 If the pleadings do not give sufficient details, they will not raise
an issue, and the Court can reject the claim or pass a decree on
admission.
75 On vague pleadings, no issue arises. Only when he so establishes,
does the question of framing an issue arise. Framing of issues is
an extremely important stage in a civil trial. Judges are expected
to carefully examine the pleadings and documents before framing
of issues in a given case.
78 The Court must ensure that pleadings of a case must contain
sufficient particulars. Insistence on details reduces the ability to
put forward a non-existent or false claim or defence.
79 In dealing with a civil case, pleadings, title documents and relevant
records play a vital role and that would ordinarily decide the fate
of the case.
34 2012-5 SCC 370 = AIR 2012 SC 1727= 2012-3 SCALE 550

40
A. Shanmugam vs Ariya Kshatriya Rajakula Vamsathu Madalaya

Nandhavana Paripalanai Sangam:35
26 … the pleadings are foundation of litigation but experience
reveals that sufficient attention is not paid to the pleadings and
documents by the judicial officers before dealing with the case. It
is the bounden duty and obligation of the parties to investigate
and satisfy themselves as to the correctness and the authenticity
of the matter pleaded.
27 The pleadings must set-forth sufficient factual details to the extent
that it reduces the ability to put forward a false or exaggerated
claim or defence. The pleadings must inspire confidence and
credibility. …
See also the observations in Kishore Samrite vs State of U.P.36
From the High Court of Delhi, the following decisions may also be

noted:
Ved Parkash vs M/s. Marudhar Services Ltd:37

7 … Merely because a palpably false case has been set up, in the
present circumstances relating to the waiver of the notice, it would
not lead to the consequence that a judgment should not be passed.
Failure to plead facts which constitute a valid defence, must be
read as admissions made as contemplated by Rule VI of Order 12.
To hold otherwise would be an emasculation of judicial powers to
dispense complete justice. Justice delayed is justice denied.
P.K. Gupta vs Ess Aar Universal (P) Ltd:38

11 We need to highlight that the fundamental principles, essential
to the purpose of a pleading is to place before a Court the case of
a party with a warranty of truth to bind the party and inform the
other party of the case it has to meet. It means that the necessary
facts to support a particular cause of action or a defence should be
clearly delineated with a clear articulation of the relief sought. It
is the duty of a party presenting a pleading to place all material
facts and make reference to the material documents, relevant for
purposes of fair adjudication, to enable the Court to conveniently
adjudicate the matter. The duty of candour approximates
uberrima fides when a pleading, duly verified, is presented to a
Court. In this context it may be highlighted that deception may
arise equally from silence as to a material fact, akin to a direct lies.
35 2012-6 SCC 430 = AIR 2012 SC 2010

36 2013-2 SCC 398 = 2012 (10) SCALE 330
37 [26.05.2000] 2000-V AD (Delhi) 845 = 2000 (54) DRJ 654
38 RFA (OS) 78 of 2011 decided by a DB of the High Court of Delhi on 21.11.2011.
http://lobis.nic.in/dhc/PNJ/judgement/23-11-2011/PNJ21112011RFAOS782011.pdf
41
Placing all relevant facts in a civil litigation cannot be reduced to

a game of hide and seek. …
Om Wati vs Panchi Devi:39

7 In the written statement cum counter claim filed, Om Wati …
… stated that the plaintiff had agreed to sell her the subject
property for a sale consideration of Rs.20,00,000/- and that the
agreement in question was an oral agreement.
8 Without furnishing any proof of any such sale consideration paid,
she pleaded in the written statement that at the request of the
plaintiff, defendant’s husband had requested defendant’s nephew
Sh. Manoj to deliver jewelry worth Rs.13,50,000/- to the plaintiff
which was to be adjusted against the sale consideration. Counter
claim was by way of specific performance of the oral agreement to
sell.
13 With respect to the defence taken, we must hold the same to be
a sham and of a kind which no court of justice or equity would
countenance. If these kinds of defences are to be permitted to be
set up, it would create havoc in the society. Every tenant would
start claiming that some relative of his or hers or he himself
rendered some services or effected delivery of certain goods which
was to be recompensed by way of sale consideration for the sale of
the tenanted property.
14 … the defence to retain possession is a moonshine defence and
has to be ignored.
4.3 Proceeding then at the ground level, pleadings are the foundation of the
rival cases. Ideally, pleadings should contain only those averments /
pleas, which are factually correct, make complete disclosure, and only
put forward a claim or raise a dispute that carries reasonable prospects
of success.
4.4 Facts stated in the pleadings are required to be properly investigated,

rechecked and verified for correctness before signatures and filing, but
as a ground reality, far from such ‘self-filtration’, there is (usually by
one party of the two), deliberate distortion as also addition of impurity
(chaff). If we pick up sample files of decided cases and then carry out
reverse engineering, we will know, how, instead of ‘filtration’, there was
deliberate insertion of impurity at the pleading stage.
4.5 For putting forward a false claim (or defence) in the pleadings, what is
today the perception of the cost (risk)-benefit ratio in the mind of the
39 RFA (OS) 93 of 2011 decided by a DB of the High Court of Delhi on 14.12.2011.

http://lobis.nic.in/dhc/SPG/judgement/15-12-2011/SPG14122011RFAOS932011.pdf
42
wrongdoer? Should that not be corrected or can we allow it to continue?

Surely, pleadings are not a licence to create controversy where none
exists. It is time we took note.
4.6 The figure on the right seeks

to demonstrate the role of
pleadings as a ‘filter’ or as a
‘gatekeeper’. The question, once
again, is: Do the pleadings entail
a duty to filter and purify? Or, do
they give a ‘licence’ to make all
kinds of false and exaggerated
claims (or defences), in the
hope that under the weight of
the controversy so created, the
matter will go on and the other
party will succumb en route, and
even if not, the wrongdoer will
still have something to gain?
4.7 Should such conduct (of adding

falsehood, chaff, etc.) be rewarded
or penalised? is a question that
needs to be kept in the forefront.
While a substantial amount of
enforcement (of pleadings as a
‘filter’) can be carried out under the existing procedures, to achieve the
highest efficiencies, it requires reform in: (1) Rules; (2) Forms; (3) Post-
pleadings and pre-trial procedures; and (4) Sanctions (appropriate) for
breach.
4.8 A few words on lawyer-client communication. The client who comes

to the lawyer either wanting to file a case or having to respond upon
receiving summons of a case against him, is not always conversant with
his legal rights & obligations. Even of facts, he may carry a distorted
or an erroneous perception. He looks more at what he wants without
being able to appreciate the right or the wrong of it, or of the tenability
of his claim (or defence) in law. There are also those who give wrong
instructions, or conceal facts from the lawyer.
4.9 To remove misperceptions and miscommunication, effort is required.

As much attention as can be bestowed, ought to be bestowed. Here,
43
Checklists and Forms, particularly List of Events (date-sheets), can be

very useful. Studies conducted in the course of this work have shown
that where the lawyer and his client prepare a list of events and flow
charts in the beginning, each knows the case much better and what
comes out as the pleadings is far more focussed and less prone to failure
in the end.
4.10 The documents can then also be collected and examined better. More
particularly, the lawyer has to advise a client on how he could look
for and collect documents which could be useful for the purpose of
formulating his case. This is required because a party may not be
able to comprehend what is relevant and what is not, even though the
documents may be lying with him at home.
4.11 It is worthwhile to explain to the client what could be relevant, give

photocopies as reading material, and then let him do the homework
and come back. A lawyer can then ask more questions based on
his experience. This will give the client a feeling that his lawyer
has given him a patient hearing. More importantly, there will be
clearer understanding of what is the available evidence in the form of
documents or even as absence of documents.
4.12 Drawing the List of Dates, as also the chain of facts, usually sequential,
but sometimes grouped item-wise, is essential. This helps reduce
errors of perception and even wrong instructions. The rule is that if
an irrelevant thing is told by the client to the lawyer, the lawyer can
score it out, but if he keeps quiet, the lawyer has no way of knowing it.
The effort should be to receive from him as many facts as are possible
so that the irrelevant ones or the not so important ones could be scored
out.
4.13 This prevents the ‘missing out’ of, at times, crucial details, which the
party may not have otherwise remembered or may have thought of
them as not worth telling the lawyer. Lack of communication means
an error, and later, when that error is exposed, a good case can be lost.
Justice is the casualty. It is the lawyer who gets a bad name. It calls
for much more effort at explaining to the client what the case needs,
and spending time on it, before proceeding further.
4.14 Once the communication between the client and the lawyer is complete,
the next step is pleadings. Of the two parties, in 90% cases, one (and
sometimes both) knows that he is in the wrong with his claim or contest;

44
and yet he puts it forward, and then persists. The mindset of a typical
litigant (in the wrong) is: ‘Let me take a chance. In all probability, I will
get something out of it,’ and in the end he does.
4.15 This has two facets: (1) a plaintiff coming forward with a false or
simply exaggerated case; and (2) a defendant knowing that he has an
obligation, refusing to perform in the hope that the plaintiff would be
forced to go to Court where he will deploy his skills at defence and other
tactics to delay till the plaintiff gets tired and settles for much less.
4.16 The result is that what comes before the courts as pleadings is far below
in standard of purity than it should be. When such a case comes before
it, naturally the Court has to go into all these pleas and contentions
before finally deciding, and that takes time.
4.17 A plaint is best tailored around a chronological structure of material

facts. Drawing the chain of facts is like the very many carriages hauled
by the train engine where some carriages (facts) would be undisputed
and some disputed. There will be documents to support some and
there will be absence of documents for others. Once this chain of facts
is drawn, it is then examined for two things: (1) logic; and (2) availability
of evidence, preferably documentary. The sequence may have to be
restructured to make it appeal to human logic and easier to understand.
4.18 At this stage, reading a judgment or two, which discusses facts of a

similar case, is helpful as that throws light on that which appeals to
the Court, or points out the requirements (elements) of law (legal rule).
This then helps give a more accurate and a finer quality finish to the
structure.
4.19 Cross-examining one’s own client in the privacy of the office is a useful
tool. Once this exercise has been gone through, to put forward the
pleadings becomes a simpler task. Mis-statements are reduced and
so are concealments. Effort at checking the layout and structure is
essential. The legal ground should also be stated as that gives sharp
focus.
4.20 The position with regard to a written statement (as also a replication)
is somewhat similar except that the case put forward by the other side
is to be understood and then answered. It may be admission of certain
facts; it may be denial of certain facts; and there are many types of
cases where it calls for an affirmative defence. Even otherwise, the
defendant must state what he knows of the facts and not rest content
45
with a mere denial. There is also the problem of jumbling up paras

while replying, i.e., replying to two or more paras in a single para. In
such event, the Court can always direct separate reply to each para and
sub-para, i.e., direct a para-wise (and sub-para-wise) reply.
4.21 While putting down pleadings, full care, in fact extra care, must be
taken. The distinction between: (1) facts (material or evidentiary); (2)
law; and (3) application of law to admitted facts, or facts as are likely
to be found (or not found), must not be ignored by the lawyers. The
detail has to suffice, and repetitions and confusions have to be avoided.
Proper structuring is important. Before making an averment or raising
a plea, the parties must ‘Stop, Think, Investigate and Re-verify’.
4.22 Pleadings must state the material facts with sufficient detail, and, at
the same time, be as brief as possible. Repetitions and unnecessaries
are to be discouraged. Further, long paragraphs and long sentences
must be avoided. Sentences in an averment that is likely to be disputed
should be so simple that they cannot be split into further sentences.
4.23 Clauses of a sentence should be split into sub-paragraphs (or even

sub-sub-paragraphs). It then calls for separate response to each. Any
attempt at avoiding a specific response should be met with a direction
that a fresh pleading answering each para and sub-para or even sub-
sub-para separately be filed.
4.24 While pleadings are to contain only a statement of material facts

in concise form and not the evidence, it may be pointed out that the
typical pleading of today, particularly by the person who knows that he
is not in the right (as 90% plus of them do), tends to make averments
of material facts in vague terms without including any details and
particulars. Including details makes the averments of material facts
credible. The documents and records must find reference. At the same
time, repetitions, irrelevance and confusion cannot be permitted. The
pleading of legal theory also helps in this respect if it clarifies the basis
of the claim or defence in relation to the legal principles either party
may need to establish at trial.
4.25 Insisting upon proper pleadings and where pleadings are improper
or less than proper, drawing appropriate inferences or even levying
penalties, will help resolve the disputes speedily.

46
5. Using the existing procedural laws:

5.1 In this presentation, the first topic detailed the larger issue, while
the second topic has further detailed the incentives and operational
mechanics to show why uncalled for litigation accrues and then drags
on. The per case cost of the judicial process multiplies. To remove
court delays, reduce the cost of justice, and thus achieve the highest
possible efficiencies in judicial adjudication, we need: (1) general reform
of procedures; and (2) subject-specific tailoring of procedural rules.
5.2 That may be a long term measure, but there are also a few practices –
within the confines of the existing procedural law – which can be easily
followed. Two fundamental issues in that regard were detailed in
Topic 1 and Topic 2. Continuing – and without waiting for law reform
– we can begin to ‘fully use; the existing procedural law. And by doing
so, our output would straightaway double and we will also have the
satisfaction of preventing waste and delivering justice. Thoughts in that
regard follow.
5.3 Case Management is a court process that allows a judge to monitor and
manage the progress of a court case as it moves through the system –
from initial filing to final disposal. As part of this process, the attempt
of one party – at times, even both – to delay is prevented by the Judge
who endeavours to ensure that obstructive and delaying tactics do not
succeed and the case can proceed to its logical conclusion. The two
main goals of Case Management are: (1) to reduce unnecessary delay in
reaching a final determination of a case; and (2) to reduce the costs of
those involved in the case.
5.4 Case Management is best termed as Case and Court Time Management.
The former implies that in the multi-stage filter, which the adversarial
process is, the entry point filter (pleadings) and the subsequent stage
filters (preparatory and pre-trial) are not ignored, and they are properly
deployed. Second, if any party seeks to obstruct and delay, the Court
cannot adopt a stance (say to the other): I am helpless.
5.5 The Court has to ensure that the speed is maintained, i.e., the tasks are
done and deadlines are honoured. This is part of Case Management.
Some of the Western concepts of Case Management, which have also
appeared in our literature, have so appeared without due adaptation.
5.6 The Case Management is best looked at, therefore, as:

47
1 manage a particular case in a manner that all ‘filtration’ stages

– particularly attention to pleadings – are actually deployed;
2 the parties are prevented from obstructing, delaying, straying
from the path, etc., so that at minimal costs, a case is decided;
3 Court Time Management;
4 Litigation Management; and
5 Court Administration Management.
Some overlap will be there. They should not be mixed up together.
5.7 Before we proceed in Topic 6 to the many steps on the way forward,
we need to address the principle behind preparatory procedures that
enable reduction of the factual controversy.
Pre-trial procedures
5.8 With respect, the present mindset to avoid pre-trial filtering and post
it for trial is wrong. It is perhaps because of an erroneous approach
harboured by some that the expending of time and effort in these is a
waste. To achieve efficiencies, for pleadings and pre-trial practices in
civil cases, a new approach is required.
5.9 In Maria Margarida (supra), the Supreme Court observed:

39 … … 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
52 Truth is the foundation of justice. It must be the endeavour of all
the judicial officers and judges to ascertain truth in every matter
and no stone should be left unturned in achieving this object.
Courts must give greater emphasis on the veracity of pleadings
and documents in order to ascertain the truth.
Narrowing the Width
5.10 Continuing, civil litigation has stages – like a multi-stage filter. Despite
the 1908 CPC so providing, we, in practice, adopt a passive attitude and

48
do not use the filters, i.e., do not use the early stages to identify and
narrow down the controversy by eliciting documents and admissions.
Put differently, we do not ‘Manage’ the civil suit as it progresses, and
leave all issues for the final judgment to tackle (and solve) with the
result that the perceived dispute remains wide, in fact, gets enlarged.
5.11 Further, this (a wide controversy) enables obstructions being placed at

every step40 by the one seeking to make the other succumb en route, or
otherwise profit from delay. The figure below depicts a comparison in
the extent (width) of the controversy at each of the many stages.41 The
width of the band after each stage denotes the extent of the surviving
controversy.
5.12 It will be seen that by enforcing a Stop, Think, Investigate and Reverify,
and insisting on proper pleadings,42 at the pleading stage itself, far
from expansion there will be lesser controversy that will come before
the court. The endeavour is to continue it at each successive ‘filtration’
stage before the trial. Further, unlike in the past when it was mostly
oral, ‘evidence’ today is documentary, i.e., in the form of records, and
can be received at a preparatory stage.
5.13 Let us take any decided case,43 and list all the ‘facts’ (material,
evidentiary and sub-evidentiary) that came on the record, first as
40 as wider the controversy, the greater the opportunity for

obstruction and delays
41 The stage numbers at the centre have been kept the same
as in the display chart placed before.
42 by taking action for deviance
43 preferably one where we participated in the trial
49
averred / pleaded, then as admitted or disputed, and finally, as evidence.

Looking at them in retrospect, at first blush itself, most would appear
to have been unnecessary. The more important question to be noted
here is, how many of these factual and legal disputes were bona fide
(or genuine) and how many were created only with a view to tire out
the other by reason of mounting costs and delays. In other words, how
much of the presentation to the Court was not pure, or even deliberately
made impure.
5.14 Properly applied, preparatory and pre-trial procedures can further

narrow the issues, and only very narrow issues with the onus correctly
placed go for trial. Naturally, the area to be covered by the final
arguments, i.e., which is primarily fact-finding and then selection and
application of law to facts, becomes a shorter process, and ultimately,
the judgment has to be delivered over a much smaller area of dispute.
5.15 Let us go further and ask ourselves the more pertinent question: By
adopting appropriate preparatory procedures and practices in relation
to such ‘facts’,44 what savings in time and cost could have been achieved ?
An answer of 50% plus will not come as a surprise.
5.16 Similarly, we ask ourselves a question: Of the contentions of law that

were raised, how many were bona fide and how many were not?
5.17 Keeping this distinction between fact, law and application of law
(addressed in Topic 1 supra) in mind will help us collect the documents,
obtain admission / denial of facts and thus narrow down the controversy
and also more correctly place the burden / onus of proof. It will do so
by reason of first being able to clear out the factual arena, i.e., better
understand the cause of action and the defence, the material facts
and then proceed with regard to evidentiary facts only where there
is requirement. More importantly, it will help us tackle the problem
regarding impurity in presentation. In any case, to achieve efficiencies,
there must be a shift in our focus to the earlier stages from pleadings
till the framing of issues.
5.18 It will thus be seen that with correction in our approach towards our
practices, and only a slightly increased effort at the earlier stages, we
will achieve substantial savings in the larger terms. The total costs of
justice delivery will be less and the vicious circle will then break.
44 by first discovering, listing and grouping, and then calling for

admission / denial, and / or dispensation of proof for each such fact
50
5.19 So much for attention to the pleadings and pre-trial so that the extent
of the factual controversy is minimised. If the other devices and aids
such as Video recording of court proceedings, preventing overloads
etc. are put into practice, the output will go up by over four times as
compared to the present.
5.20 One word more before we set sail. As a ‘pre-’measure, Mediation must
be encouraged before the commencement of litigation. Even if a suit
is filed, parties could be told to appear before the Mediation Cell and
make an attempt there before filing the Written Statement.45 Many of
the genuine disputes can be resolved through this methodology.
6. The Way Forward
6.1 The problem, the principles and other thoughts having been stated, we
may now proceed to the practical steps. Some of the procedural tools
and practices as are permissible under the existing Code (CPC-1908)
will help contain the ability of the wrongdoer to create confusion, and
also enable the Court to exercise control. Adoption of other practices /
tools will further increase the efficiency of the courts.
6.2 Put differently, by just moulding our practices within the existing
framework of law, delays can be substantially curtailed, cost of justice
reduced, and many of the ills faced by our system remedied.
Enforce Responsible Pleadings – 1
6.3 We begin with pleadings. The importance of pleadings has been
pointed out earlier. They must be detailed and specific so as to inspire
confidence. There can be no doubt that purity in pleadings is essential.
The Supreme Court has also pointed its importance in Maria Margarida
and Shanmugam (supra). In Kishore Samrite vs State of U.P.46 while
reiterating the same principles, the Supreme Court also said that a
litigant is bound to make “full and true disclosure of facts”.
32 … … To enable the courts to ward off unjustified interference
in their working, those who indulge in immoral acts like perjury,
prevarication and motivated falsehood, must be appropriately
dealt with. The parties must state forthwith sufficient factual
details to the extent that it reduces the ability to put forward false
and exaggerated claims and a litigant must approach the Court
with clean hands. …
45 Section 89 and Order 10 Rule1-A CPC are not happily worded.

However, an approach as suggested will require guidelines / practice directions
from the High Court.
46 [18.10.2012] 2013-2 SCC 398 = 2012 (10) SCALE 330
51
33 … … A litigant is bound to make “full and true disclosure of

facts”. …
35 No litigant can play ‘hide and seek’ with the courts or adopt ‘pick
and choose’. True facts ought to be disclosed as the Court knows
law, but not facts. …
The question is of how to enforce proper pleadings.
6.4 Here, it needs a clear message that pleadings have to be responsibly put
down, and any impurity therein or lack of detail will not be tolerated.
Inasmuch as the problem has continued from long, as a transition, it
may be advisable to, at times, give an opportunity to amend before
proceeding to harsher penalties – i.e., re-file the pleadings after
including the relevant component and excluding the irrelevant and
unnecessary component.
6.5 The plaint must include the necessary details and reference to the
documents. Similar is the requirement for the Written Statement.
Then, at times, the ‘denial’ in the Written Statement / Replication is
evasive, or separate paragraphs are jumbled up to avoid answering.
Giving an opportunity (or even a direction) for a fresh para-wise (and
sub-para-wise) reply, as also calling for an explanatory affidavit on
any point, are useful procedural devices which must be wielded. Very
often, questions of ‘deemed admission’ arise, and many of them can be
decided at the ‘issues’ stage without leaving things open for the trial.
6.6 Rule 16 of Order VI CPC enables the Court, at any stage of the
proceedings, to strike out or amend any pleadings that are unnecessary,
scandalous, frivolous or vexatious, or which may tend to prejudice,
embarrass or delay the fair trial of the suit, or which are otherwise
an abuse of the process of the Court. This is a useful provision which
should be deployed wherever the pleadings are less than proper. Use of
this power (under Rule 16 of Order VI CPC) to strike out redundancies
and irrelevance will give the pleadings (which are foundation of any
litigation) a whole new dimension. Added to that is the wielding
of power under Section 30 CPC to ensure details and particulars.
Consequently, little will be left to reach – or sail past – the stage of
issues.
6.7 Deploying preparatory procedures (first) as hereinafter detailed, and

(secondly) pruning at the stage of the first hearing before framing issues
will bring about a lot of clarity. Lastly, if falsehood or concealment is
found, it requires directing prosecution at the appropriate stage. For

52
those contents which are improper, but not grave enough to fall within
the realm of perjury, appropriate costs need to be imposed.
Preparatory Procedures – 2
(1) Documents; (2) Interrogatories; and (3) Directions
6.8 After the close of pleadings, there is so much that can be done till the
framing of issues, to help achieve efficiencies. The preparatory stage
has, in fact, three separate procedural tools, as noted above. These
tools, which our Rules can deploy, are actually victims of non-use by
reason of lethargy. Let us examine this further.
6.9 With the change in the pattern of life, the pattern of evidence has also
undergone a sea change. The bulk of civil litigation in 1908 would have
been decided on the basis of oral evidence and given its due place by
the procedural laws. However, today, civil litigation is decided mostly
upon documents and records.
6.10 Courts look at claims (and defences) of ‘oral’ origin, and without
documentary evidence where it ought to be available, as hardly worthy
of consideration. Litigation between the citizen and the State – which
accounts for almost half the litigation pending in our courts today
– is all based on documents and records with the component of oral
evidence being next to nil.
6.11 In 1908, the role of documents was only 5% (and the remaining was
of oral witnesses). It has now reversed. Today, it is documents and
records that comprise the bulk – 95% documents and only 5% oral.
Consequently, pleadings and pre-trial procedures need more attention.
6.12 Today, unlike the witnesses at a trial, documentary evidence (and more
so with the photocopier) can be received in advance and processed so
that there is very little left to go for a trial.
6.13 Courts should readily direct discovery & production of documents, even
summoning from outside sources at an early stage, followed by proper
admission / denial, which the present Code enables, to help prevent the
creation of uncalled for controversies, and narrow down the controversy.
6.14 Moreover, there is a difference between proof of a document and what

the document proves. Proper admission / denial, dispensation of proof,
and in the event of dispute, supporting evidence followed by methodical
exhibit marking, is essential. Procedural law and practices need to
keep pace with the change in times.

53
6.15 The next step in the preparatory procedures is Interrogatories. On

receiving answers to interrogatories, so many ‘facts’ which were in
dispute or simply appearing to be in dispute can be removed from the
arena of dispute, thus making the case shorter and simpler – in fact,
at many times, leaving no dispute at all. This is a very useful step, but
in practice, not resorted to. Lawyers need to be encouraged to prepare
and file interrogatories. Courts also should not be reluctant in giving
leave to deliver interrogatories. In Ramrameshwari Devi vs Nirmala
Devi,47 the Supreme Court noted:
52B The Court should resort to discovery and production of documents
and interrogatories at the earliest according to the object of the
Act. If this exercise is carefully carried out, it would focus the
controversies involved in the case and help the court in arriving
at truth of the matter and doing substantial justice.
The Court can also do so suo motu. See Section 30 C.P.C.
6.16 It is an impression that in most cases, if the Court, after obtaining

or preparing a three-column List of Events,48 and going through the
file, with the assistance of the two counsel, formulates a few questions
and asks the parties to file an affidavit in answer, at least half the
disputes regarding fact would stand resolved, i.e., the party in the
wrong will no longer be able to persist with his false averment, or false
or irresponsible denial.
6.17 The next part is issue of Directions, which can be very wide, and can
take very many types, forms and shapes. If one party disputes an
assertion of fact by the other, it is useful to direct that party to prepare
its own detailed version of facts in relation thereto and file that. It
could be plans or photographs of a property, or an affidavit detailing
his version, or other forms of information seeking, as the facts and
circumstances of the case may call for.
List of Dates, and a List in Three-columns – 3
6.18 One useful form of Directions is calling for a List of Dates. A List of
Dates or Events, commonly asked for in writ jurisdictions, comprises
a chronological narration with the date in the left column and the
description of the (important) event / fact in the right (main) column. A
proper List of Dates greatly enhances communication and uptake, and
also prevents the Court from being misled by one party or the other.
47 [4.07.2011] 2011-8 SCC 249 = 2011 (6) SCALE 677

48 Another helpful tool is a pencil-drawn flow chart of events.
54
Considering its utility, every Court, particularly the trial court, should
insist upon one.
6.19 In preparing a List of Dates (or Events), everything of importance has

to be incorporated. The language deployed has to be as succinct as
possible; and it should also contain the necessary cross-references, and
may be a short description of the contention, but nothing more. The
technique is to state the most in the least words while ensuring that
nothing is missed out.
6.20 The focus must be on material facts and important documents.

Evidentiary facts (unless very important) ought to be avoided mention
as that shifts the focus. Alternatively, the evidentiary facts (in relation
to a material fact in dispute) may be grouped separately and a reference
thereto made in the list.
6.21 To successfully overcome the complexities with which litigation

comes before our courts today, a useful device is a three-column List
of Dates, prepared at a stage after the close of pleadings and other
preparatory procedures – like discovery & production of documents,
their admission / denial, interrogatories, etc. In a three-column List
of Dates, the date appears in the central column, and the Plaintiff’s
version of the event appears in the left column while the Defendant’s
version appears in the right column. The sample below illustrates:
Plaintiff’s version Date Defendant’s version

DD.MM.YYYY
keep on adding rows
6.22 Before our courts, the quantum of irresponsible averments and denials
in the pleadings is huge. Many times, a particular fact averred by one
is denied by the other, and when the same fact is averred by the other,
it is denied by the former. Presented in this form, a ‘three-column List
of Dates’ will make the admitted facts stand out. The real controversy
will become easy to discern as rival versions will be there side-by-side.
It will be easy for the Judge to pick up the point till which point the case
is common; the point where the controversy or divergence commences;
and the point where such diversion ceases. Those that are common can
55
be treated as admitted and can help draw the chain of facts, which are
admitted or non-disputed.
6.23 To compile a three-column List of Dates on the computer, first adjust

the document to the landscape mode and thereafter insert a table with
three columns and several rows. In this table, place the date in the
central column and then place (in relation to that date) the Plaintiff’s
case in the left column and the Defendant’s in the right column. Keep
adding rows for each relevant date. The material for the rows has to be
taken from the pleadings and documents, and short-form expressions
can be used, but, as far as possible, page numbers also be given. The
parties should confine themselves to that which is on record.
6.24 Reference in these connection may be made by the High Court of Delhi
in Dr. V.J.A. Flynn vs UoI 49 copy whereof appears at the end.
6.25 In practice, both parties can be required to file their own three-column
list. The Judge is then free to choose the better one after verifying
the entries from the pleadings and the documents, or based on that
material, prepare his own. The parties can then be asked to confirm.
6.26 Interestingly, an Order directing both the parties to file their own
three-column List of Dates will, in most cases, find resistance from one
of the two parties. Lethargy apart, it is the party in the wrong (i.e. the
one who does not expect to succeed), who will first oppose the Order
requiring him to file a three-column List of Dates, and then also decline
to file it. The party in the right, will, once he comes to appreciate its
utility, file it at the earliest.
6.27 If one finds difficulty in drawing a three-column List of Dates in

the aforesaid manner, then it is better to draw it separately as a
conventional List of Dates by each of the two parties, i.e., for the rival
cases. The two can then be merged together. Thereafter, a rechecking
with the pleadings and documents on record be carried out.
6.28 There is another form that each party must be required to fill, and file,
before the issues are framed. This will simply be a list of documents
which are admitted, exhibited and given an exhibit mark in the upper
portion, while in the lower portion, there will be the list of documents
which are still to be given an exhibit mark. Ideally, if they could be
49 Orders dated 11.01.2013 & 22.03.2013 in C.S. (OS) No. 391 of 2000
56

57

58
grouped according to the material fact for which they are required, it
will be still better.
6.29 A form50 for placing the material facts in a side-by-side mode has been
developed and is placed on previous pages (as two facing pages) in which
the reference details can be recorded by the parties and placed before
the Court in order to assist in appreciating the surviving controversy
and framing the issues.
6.30 It may be reiterated that this form as also the earlier three-column List
of Dates will not state anything new and will be confined to what is
already on record. It is only a reference index of that which is already
there on record so that the Court – at one glance – gets an overall
picture and can proceed to look at the concerned pleadings, documents,
affidavits, etc.
6.31 One look at the factual contentions of one party viewed with the
contention (or response) of the other – as appearing in the respective
columns – will give a clear picture of where the controversy lies. An
additional advantage is that a relevant act or event, which may have
been omitted or even deliberately concealed by one party, will find
inclusion by the other so that at the end of it, nothing is missed out. It
will also help visualise the evidentiary facts required to prove the truth
of the disputed rival material facts.
6.32 Apart from the aforesaid, there are a number of other directions that
can be issued, depending on the nature of the case, thus ensuring
availability of information. Samples are of preparing indices,
compilations, tables, comparative charts, flow charts, etc. as will help
the Court in reaching to and even narrowing down the real controversy.
Directions regarding presentation of data / information in a tabulated or
comparative or grouped form, depending on the nature of the case, and
then also stated sequentially for a particular topic, or in juxtaposition
with other facts & events, can bring about clarity.
6.33 True, it takes effort to prepare such a list, but once prepared, the
utility is unparalleled. The Court can then confine itself to the real
controversy and proceed to the relevant documents and the evidentiary
facts in order to adjudicate on the disputed question of fact.
50 one for the plaintiff and a separate one for the defendant
59
6.34 As noted earlier, and preferably after the three-column List of Dates
has been prepared, even if it be one in a rudimentary form, it is useful
for the Court to itself consider what Questions can be posed to the party/
ies or what ‘Directions’ can be given for being complied with. Section
30 CPC confers a very wide jurisdiction on the court.
6.35 The utility of Section 30 was emphasised by the Supreme Court in

Maria Margarida (supra), para 42 whereof reads:
42 In civil cases, adherence to section 30 would also help in
It is submitted that this provision can be used at any stage of the
proceedings and on occasions more than one. It can even be used at
the appellate stage or for the purposes of execution.
6.36 It has been the experience, confirmed by surveys, that in most of the
cases, there are just a few (two or three) basic questions, and the party
who knows that he is in the wrong seeks to avoid answering these,
and instead, endeavours to cause confusion. If the Court formulates
and poses these questions at an early stage, in most of the cases, the
litigation may not even survive the ‘issues’ stage – or will be greatly
narrowed.
6.37 Then, there is a distinction between non-production of a document and

non-existence of a document where a document ordinarily ought to
exist. Proof of a document and what the document proves is another
part which must be kept in mind.
6.38 A good method to train ourselves would be to make it a practice when

examining a judgment with reference to the pleadings and the trial
proceedings as to the Basic Questions that could have been posed by
the Court (or Directions given) at an early stage to be answered on
affidavit, which would have worked towards shortening the dispute
and bringing clarity. Soon, we would have acquired skills in this art –
Visualising the Basic Questions – thereby increasing our productivity.
We can then use such skills to exercise power under Section 30 CPC at
various stages of the litigation, preferably the early stages.
6.39 In the event the suit appears to be one which is prima facie likely to
be decreed, the directions would also include such clarifications and

60
undertakings as will help prevent disputes and trouble in the execution

stage.
6.40 The effort and the ability to identify, discern, and segregate fact, law
and application of law will greatly improve our ability to prevent a party
from being able to put forward irrelevance, confusion, concealment and
falsehood, and also enable better (re)structuring of the rival cases and
thus reduce the disputed area of fact and then proceed to fact-finding.
6.41 With a properly prepared List of Dates, and other comparative or

explanatory Lists or Tables, falsehood and concealments stand exposed.
So do irresponsible averments or denials. The component of ‘Confusion’
becomes more apparent. Directing the parties to file a Memo (as an
index to their case) before the first hearing is another useful step. If
one takes across the board litigation in our courts, simply preparing a
list of dates in a three-column format will shorten it by one-fourth.
6.42 With respect, that the present mindset is to avoid pre-trial filtering
and post it for trial, which is wrong. For pleadings, preparatory and
pre-trial procedures / practices in civil cases, an approach as this is
required to save on time consumed by a typical case.
Record statements of the parties before
framing the issues, prune untenable averments
& pleas, and then, carefully frame the issues – 4
6.43 Thirty eight years ago, in T. Arivandandam vs. T.V. Satyapal,51 the
Supreme Court observed:
And, if clever drafting has created the illusion of a cause of
action, nip it in the bud at the first hearing by examining the
party searchingly under Order X, C.P.C. An activist Judge is the
answer to irresponsible law suits. The trial Courts would insist
imperatively on examining the party at the first hearing so that
bogus litigation can be shot down at the earliest stage. The Penal
Code is resourceful enough to meet such men, (Chp. XI) and must
be triggered against them.
This has great practical utility. It must become a regular practice.
6.44 The Court can always ask the parties to familiarise themselves with
the controversy in the case and come with all the records. The lawyers
can give suggested questions for the other party. A three-column List
of Dates and the Memo referred to earlier comes in handy.
51 AIR 1977 SC 2421,’24 = 1977-4 SCC 467

61
6.45 The Court can also narrow down the scope of the controversy, both
during the statement by asking pertinent questions and thereafter
by hearing the parties and passing orders. Averments / pleas which
are irrelevant or have no prospect of success can be so designated.
Depending on the facts of the case, and keeping in mind the type of
difficulties faced in the execution process (in the event of the suit being
decreed), appropriate clarifications and undertakings can be taken.
6.46 The importance of issues, and the need to frame issues carefully, was
highlighted by the Supreme Court in Makhan Lal Bangal vs Manas
Bhunia52 and Hiralal vs Badkulal.53 A vague averment / plea does not
give rise to an issue. In Maria Margarida (supra), the Supreme Court
observed:
73 Discovery and production of documents and answers to
interrogatories, together with an approach of considering what
in ordinary course of human affairs is more likely to have been
the probability, will prevent many a false claims or defences from
sailing beyond the stage for issues.
75 On vague pleadings, no issue arises. Only when he so establishes,
does the question of framing an issue arise. Framing of issues is
an extremely important stage in a civil trial. Judges are expected
to carefully examine the pleadings and documents before framing
of issues in a given case.
After having read the case file, while hearing the parties for framing
of issues, the Court can always seek clarifications, receive answers or
explanations and even reject those averments / pleas which are not
sufficient, or, on the face, untenable.
6.47 It is a good practice to make a prefatory note describing very briefly

the cause of action and the defence. This is a terse statement of the
averred / pleaded facts and the important documents. Thereafter,
making a note of the admitted facts and the principal documents, as
also the disputed material facts and documents, as a preface to the
issues, is helpful. A little effort at this – about one typewritten page –
makes all the difference to the time required for final disposal, as also
the accuracy of the end result.
6.48 The issues that are framed must be narrow and pointed, and not wide.
The difference between a wide issue on the one hand and a pointed
issue on the other ought not to be ignored. The Court has also to
52 2001-2 SCC 652,’62-63 = AIR 2001 SC 490

53 AIR 1953 SC 225,’6 = 1953 SCR 758
62
consider the pleadings and other material on record and then fix the
onus of proof. The ‘Onus’ of proof here is understood not in the sense of
risk of non-persuasion, but that on the particular issue/s which party
(of the two) will first begin the evidence and the other will thereafter
rebut. Put differently, placing of onus here is more towards fixing the
order (sequence) of adducing evidence.
6.49 The advantages of insisting on proper pleadings and carrying out

pre-trial procedures and framing of issues as aforesaid would be: (1)
lesser uncalled for litigation will accrue; (2) fewer cases will need to
go to trial. For those that still go to trial, it will be something like the
equivalent of the difference in searching for a small needle (the truth)
in a large haystack, or searching for a lost bunch of keys over a 100 sq.
metre area, 40 sq. metre area, or only over a 10 sq. metre area.
Use the tool of interim Costs (Section
35B CPC) to ensure Propriety in conduct
and prevent waste of court resources – 5
6.50 It cannot be denied, as your own experience will also tell you, that
in the adversarial system, at times, of the two parties, one seeks to
accelerate the proceedings to its logical end, while the other seeks to
stall (obstruct). The latter is the one who is in the wrong and wants to
tire out the other into a ‘surrender’ – or succumbing en route.
6.51 Every posting of a case before the Court has a cost to the Court and to
the parties. With so many postings turning out nothing useful, the
costs mount, and so does the frustration. It is these mounting costs,
and delays, which affect the functioning of our system.
6.52 To convince ourselves in this regard, when a case, in which pleadings

and documents are complete, comes up before the Court, if we were
to examine the file and then ask ourselves: What is the likely result ?
and Is one party only obstructing / delaying with a view to tire out
the other ? – the answer which our mind gives us will not be ordinarily
wrong. We must make it a practice to spend a few moments examining
the case from this perspective, before proceeding further.
6.53 Adjournments have to be tackled – not by always refusing, but by:

(1) considering the overall circumstances of the case and the previous
record; and (2) granting adjournment for very short periods,54 may be
for a period not exceeding one week, and against actual / realistic costs,
54 not more than one week, and making it clear in the order
as to who sought the adjournment
63
which should increase each time an adjournment is asked for by that

party again.
Trial and Evidence – 6
6.54 The evidence that is received, including the cross-examination that is
carried out, is largely dependent on how the case has been processed in
the previous stages. A careful / comprehensive processing on the lines
discussed above will not only reduce the need for evidence but also
allow focussed evidence and prevent irrelevance.
6.55 The present malaise (after 2002) of the Affidavit Evidence (examination-
in-chief) virtually repeating the pleadings is because the ‘difference’
between material facts and evidentiary facts, and that while admitted
facts do not require evidence, facts which are disputed require placing of
evidentiary facts and documents to prove / disprove, is not appreciated.
6.56 Presently, the voluminous evidence, much of which is redundant or

even irrelevant, causes nothing but confusion and derailment. Proof
of documents and proof of facts must be given attention in advance so
that no loopholes or shortcomings are left at the trial.
6.57 A proper read through the file, preparation of memo, insisting on a

list of witnesses that details what the witness will prove, and keeping
exhibit numbers, page numbers and references in the pleadings and
affidavits handy in a table form, will help proper recording of evidence.
The three-column list of dates and a flowchart, even if drawn in
pencil or comparative tables kept on side will be of help in recording
the evidence. A continuous trial has its advantages and is far more
efficient than a piecemeal trial.
Final Arguments – 7
6.58 The trial (recording of oral evidence) is followed by final arguments.
When hearing arguments, placing a one-page List of Heads (or points)
under which they are going to be addressed is (alongside the three-
column List of Dates discussed above) an absolute essential. Proper
indices to the court file and List of Exhibits is also required. The
statutory provisions relied upon by each of the two parties also need to
be listed and actually looked at.
6.59 The Court can always, and ought to, insist that written arguments be
filed well before commencing the final hearing. The decision in Kiran
Chhabra vs Pawan Kumar Jain55 contains useful guidelines on their
55 [14.02.2011] 178 (2011) Delhi Law Times 462. Also available as a PDF file:–
http://lobis.nic.in/dhc/JRM/judgement/26-02-2011/JRM14022011S16712009.pdf
64
form and pattern. This will reduce both the time required for the
hearing as also the probability of error in the judgment.
At the end, ensure that no deprivation of the
successful party remains unrestituted and
thus remove incentive for the wrongdoing – 8
6.60 One major factor which causes litigation to accrue, and thereafter
causes the parties to adopt obstructive and other delaying tactics, is
a general perception that the other party will tire out and abandon or
settle for less or pay up – succumb en route – and this means ‘benefit’
to the party in the wrong that he was looking for. Unfortunately, it
happens in eight cases56 out of 10 and therefore operates as a strong
incentive. Even if the party in the right does not succumb and
surrender, the Court ordinarily will not: (1) order restitution; (2) grant
realistic costs; and / or (3) impose penalties.
6.61 Thus, in any event, the party in the wrong benefits. In this view of the
matter, and to prevent this from happening, the power of the Court to
do complete justice should be readily exercised. The Court should ask
itself: What all has the party, who has otherwise won, lost by way of
injury, costs, etc.? and What should be awarded to remedy that loss?
Then, it should proceed to make such orders as may be necessary to
do complete justice – and in the process, remove all incentives for the
wrongdoing.
v. State of M.P.,57 it was noted:

6.62 In South Eastern Coalfields Ltd.
26 … In law, the term ‘restitution’ is used in three senses: (i) return
or restoration of some specific thing to its rightful owner or status;
(ii) compensation for benefits derived from a wrong done to another;
(iii) compensation or reparation for the loss caused to another. …
… The successful party can demand (a) the delivery of benefit
earned by the opposite party under the interim order of the court,
or (b) to make restitution for what it has lost; and it is the duty
of the court to do so unless it feels that in the facts and on the
circumstances of the case, the restitution would far from meeting
the ends of justice, would rather defeat the same. …
The doctrine of restitution is wide enough to do justice in every situation
and appropriately compensate the wronged party. Failure to order
complete restitution and costs will be doing injustice and allowing the
56 Further research reveals that of the 8 who abandon, (i.e. succumb en-route)
only 1 was in the wrong and 7 were those who were in the right. In other
words, a person in the wrong is less likely to abandon and it is the person
in the right who abandons and suffers injustice.
57 2003-8 SCC 648,’62-3 [para 26] = AIR 2003 SC 4482
65
wrongdoer to profit from his wrong. See also Kalabharati Advertising

vs Hemant Vimalnath.58
6.63 In Trilochan Singh vs Daya Shankar,59 it was observed:

48 Every party is expected to comply with the law and the contract
that he has entered into and his failure to do so and his causing
unnecessary litigation should mean a penalty and not a benefit
for him. Our courts are overloaded because it is widely believed
that to force the other party to start litigation will in the end be
beneficial for the wrongdoer.
49 To tackle court delays, the motivation for raising disputes and
delaying litigation must be removed. A party who makes a claim
or raises a dispute before a Court must know that whenever
the case is decided, and if it is decided against him, not only all
benefits that he may have received in the meantime will have to
be paid back, but all losses of the other party will also have to be
compensated. Unless all losses and deprivations of the successful
party have been fully compensated for, the Court fails in its task of
doing justice. If courts pass orders directing payment of realistic
costs and compensation that sufficiently make up for the losses
of the other, the motivation behind raising of disputes will be
removed and the courts will be freed of a lot of frivolous litigation.
50 Keeping in view this state of affairs and the prevalent general
impression, it will be a useful approach if the court, when deciding
a matter, considers what all orders ought to be passed so as to
do complete justice and ensure that the party which has lost,
does not get away without having to compensate the other for the
deprivation it caused to it by raising the dispute.
6.64 In Ramrameshwari Devi vs Nirmala Devi,60 the Supreme Court noted:

45 … unless we ensure that wrong-doers are denied profit or undue
benefit from the frivolous litigation, it would be difficult to control
frivolous and uncalled for litigations. In order to curb uncalled
for and frivolous litigation, the courts have to ensure that there
is no incentive or motive for uncalled for litigation. It is a matter
of common experience that court’s otherwise scarce and valuable
time is consumed or more appropriately wasted in a large number
of uncalled for cases.
58 2010-9 SCC 437,’48 [para 24] = AIR 2010 SC 3745

��
59 Rent Control Second Appeal No.34/2000 decided by the Delhi High Court on
25.11.2010 and reported as 174 (2010) DLT 266 = 2011 (1) RCR (Civil) 283.
Available as a PDF file on the Net. http://lobis.nic.in/dhc/MCG/judgement/
26-11-2010 / MCG25112010RCSA342000.pdf
60 [4.07.2011] 2011-8 SCC 249 = 2011 (6) SCALE 677
66
6.65 In Indian Council for Enviro-Legal Action vs Union of India,61 the Apex
Court, while further developing the law of Restitution, pointed out the
difference in jurisdiction for the pre-suit and post-suit period:
162 We may add that restitution and unjust enrichment, along with
an overlap, have to be viewed with reference to the two stages, i.e.,
pre-suit and post-suit. In the former case, it becomes a substantive
law (or common law) right that the court will consider; but in the
latter case, when the parties are before the court and any act/
omission, or simply passage of time, results in deprivation of one,
or unjust enrichment of the other, the jurisdiction of the court to
levelise and do justice is independent and must be readily wielded,
otherwise it will be allowing the Court’s own process, along with
time delay, to do injustice.
163 For this second stage (post-suit), the need for restitution in
relation to court proceedings, gives full jurisdiction to the court,
to pass appropriate orders that levelise. Only the court has to
levelise and not go further into the realm of penalty which will be
a separate area for consideration altogether.
167 … Unless this differential is paid, justice has not been done to
the creditor. It only encourages non-compliance and litigation.
Even if no benefit had been retained or availed even then, to do
justice, the debtor must pay the money. In other words, it is not
only disgorging all the benefits but making the creditor whole i.e.
ordering restitution in full and not dependent on what he might
have made or benefitted is what justice requires.
The emphasis is on making the successful party whole (see para 167).
Approving (in paras 174 to 176) the Delhi High Court judgment in
Padmawati vs Harijan Sewak Sangh,62 the Supreme Court (in para
192) emphasised that all incentives for wrongdoing and delaying court
proceedings must be removed, and that to do so courts must adopt a
pragmatic approach. See also the guidelines in para 197 thereof.
6.66 Kishore Samrite vs State of U.P.63 observed:

32 … … It is the bounden duty of the Court to ensure that dishonesty
and any attempt to surpass the legal process must be effectively
curbed and the Court must ensure that there is no wrongful,
unauthorised or unjust gain to anyone as a result of abuse of the
process of the Court. …
61 [18.07.2011] 2011-8 SCC 161,’36 = 2011 (7) SCALE 768

62 [6.11.2008] CM (Main) 449 of 2002 decided by the Delhi High Court,
also reported as 154 (2008) DLT 411
63 [18.10.2012] 2013-2 SCC 398 = 2012 (10) SCALE 330
67
6.67 Qua restitution, the lawyers must make a detailed submission

(preferably with data) as will help the Court pass appropriate orders. If
the process of near accurate determination takes a few more hearings,
it will be more than worth the effort.
6.68 In this connection, it may be pointed out that pendente lite mesne profits
are to be assessed by taking judicial notice and applying common sense.
Mesne profits are not required to be proved as damages for breach of
contract. Unless the amount awarded slightly exceeds the prevailing
market rates, incentive to cause, create and then delay litigation
subsists. It is not always that mesne profits are payable or are enough
to make good the loss, but here there is the principle of ‘Restitution’
which is very wide in its scope. In fact, mesne profits are only a specie
of the wider genus (restitution).
6.69 Such an approach is also essential for civil revisions and appeals, the
bulk whereof is filed not because there is reasonable prospect of success,
but because admission and stay (or even mere pendency without stay)
would cause continuing injury to the other who will be coerced by delays
into settling. Attention to the undoing of all such injuries is essential.
6.70 The day courts start paying attention to these, and the message goes
across, things will begin to change. This, along with video recording
of court proceedings, will solve half the present problems immediately.
And, a few changes in the procedural rules will make it even better.
Order realistic costs and also costs to the Court – 9
6.71 The ‘costs’ that are awarded must be realistic. It should cover all
expenditure, direct and indirect, that a reasonable person would
have to incur. See also the observations of the Supreme Court on the
need for realistic or meaningful costs in the Salem Bar case64 and in
Vinod Seth vs Devinder Bajaj.65 Useful guidelines have been given in
Ramrameshwari Devi vs Nirmala Devi66 (para 52). See also Indian
Council for Enviro-Legal Action vs Union of India67 (para 216), which
calls for imposition of realistic costs, i.e., costs which a successful party
has in fact incurred. Even punitive costs could be imposed where legal
process has been abused. See also the decision in Sanjeev Kumar Jain
64 2005-6 SCC 344,’69-70 [paras 36 & 37] = AIR 2005 SC 3353

65 2010-8 SCC 1 = JT 2010(8) SC 66
66 [4.07.2011] 2011-8 SCC 249 = 2011 (6) SCALE 677
67 [18.07.2011] 2011-8 SCC 161 = 2011 (7) SCALE 768
68
vs Raghubir Saran Charitable Trust,68 and the later judgments in A.

Shanmugam69 and Kishore Samrite.70
6.72 In this connection – as also with Restitution – let us ask ourselves that
if we ourselves were involved in a typical litigation and at the end a
judgment came in our favour, what would be the difference between
the costs incurred by us and the costs which the Court did not award ?
Could we afford it ? Was it justice as it should have been ? It is this
which will spur our thinking towards redemption on this score.
6.73 Then, the Court must also be reimbursed the cost for the time that it
spent, particularly that which was spent on the uncalled for component
of litigation.71 However, it may be clarified that law and practice
on this score is presently under development with only a few courts
having so considered and it will be better to await guidelines on this
from the High Court before the judicial officers actually pass an Order
for payment of costs to the Court.
6.74 Similarly, for the ‘wrongs’ by a party – the first, against the other party;
the second, by his stance at mediation / pre-action protocol; and the
third, before the Court72 – there must be an appropriate penalty as a
monetary fine payable to the State. The schematic diagram on the
next page explains the stage/s where the ‘wrongs’ occur. This diagram,
though similar in appearance to the one in para 1.41 (which sought to
depict the stages of the judicial process), is distinct therefrom. This
one seeks to denote the ‘three wrongs’, with references to the (three)
stages of dispute accrual and its resolution; and also how the third
wrong is persisted-with – past each stage of the judicial process. An
image of the one in para 1.21 is reiterated here to help illustrate.
68 2012-1 SCC 455 (decided on 12.10.2011)

69 [27.04.2012] 2012-6 SCC 430 = AIR 2012 SC 2010
70 [18.10.2012] 2013-2 SCC 398 = 2012 (10) SCALE 330
71 Court fee is charged on the assumption that there will be no wastage of court
time. Ideally, the court time consumed by each case from the beginning to the
end should be recorded on the Court’s computer so that a printout – on the lines
of a cell-phone bill – will depict the total, and based on the Rules prescribed
by the High Court, the total cost calculated, the court-fees paid in advance
deducted and the losing party made to pay the amount to the Court. Doing so
will substantially reduce the present wastage.
72 A wrong before the Court mainly comprises:
(1) impurity in presentation; and (2) impropriety in conduct.
69

70
6.75 Explained, rather illustrated, in another way:
Presently, there are (unintended) incentives for – or profitability from

– wrongdoing at each of the three stages. Those ‘incentives’ have to be
identified and removed.73 Further, keeping in view human behavioural
psychology & characteristics, a penalty for each of the three wrongs
has to imposed in order to prevent waste (and abuse), and achieve
efficiencies.
6.76 To understand the phenomena, you are only to recall the cases you
have come across / examined over the last few months, to realise in how
many cases how much of such wrongs were to be found.
6.77 It is only when action against such wrongs is taken will the present
waste and abuse of the resources of the justice delivery system be
prevented. It must be made clear that at present there is no specific
law which empowers a court to impose a civil penalty (where the
penalty amount is made payable as a fine to the State) for wrongs such
as these.
6.78 Ask yourselves: if law gave judicial officers the power to impose such
penalties, and such power was actually exercised for: (1) impurity in
presentation; and (2) impropriety in conduct, will the typical party
behaviour before the court not change for the better ? So done, how
much of the court resources will it take to decide a typical case, and
in the time so saved how many more cases would have been decided ?
Delays and arrears would reduce.
6.79 In any case, till the law so empowers, the court has to rest content
with full restitution and realistic costs. But an academic debate can
73 By orders for Restitution and realistic costs.

71
certainly commence on the need for, and the utility of, power (to the
court) to impose a civil penalty (fines) for: (1) impurity in presentation;
and (2) impropriety in conduct.
More readily order prosecution for
perjury in pleadings or evidence – 10
6.80 Lastly, the extent of perjury before our courts – in pleadings and in
evidence – is simply mind-boggling. In Dalip Singh vs State of U.P.,74
the Supreme Court recognised the drastic changes that had taken place
in our value system. It noted that materialism has over-shadowed the
old ethos and the quest for personal gain has become so intense that
those involved in litigation do not hesitate to take shelter of falsehood,
misrepresentation and suppression of facts in the court proceedings.
6.81
It occurs because a typical person (and his advisor) feels that:
Make any false averment, conceal any fact, raise any plea,
produce any false document, deny any genuine document, it will
successfully stall the litigation, and in any case, delay the matter
endlessly. The other party will be coerced into a settlement which
will be profitable for me and the probability of the court ordering
prosecution for perjury is less than that of meeting with an accident
while crossing the road.
To understand the real situation and its effect on justice delivery, all it
needs is pondering over your own experience.
6.82 About reluctance to order prosecution for perjury, in Swaran Singh vs

State of Punjab,75 the Supreme Court observed:
36 … … Perjury has also become a way of life in the law courts. A trial
Judge knows that the witness is telling a lie and is going back on
his previous statement, yet he does not wish to punish him or even
file a complaint against him. He is required to sign the complaint
himself which deters him from filing the complaint. Perhaps law
needs amendment to clause (b) of Section 340(3) of the Code of
Criminal Procedure in this respect as the High Court can direct
any officer to file a complaint. To get rid of the evil of perjury, the
court should resort to the use of the provisions of law as contained
in Chapter XXVI of the Code of Criminal Procedure.
After these observations, the statute was amended.76 See Cr.P.C.
Section 340(3)(b) as it now stands, i.e., w.e.f. 16.04.2006.
74 2010-2 SCC 114 = JT 2009(15) SC 201 = 2009 (14) SCALE 473

75 2000-5 SCC 668,’79 = AIR 2000 SC 2017
76 Substituted by Act 2 of 2006, Section 6, for clause (b).
72
6.83 Mahila Vinod Kumari vs State of Madhya Pradesh,77 notes:

12 The evil of perjury has assumed alarming proportions in cases
depending on oral evidence and in order to deal with the menace
effectively it is desirable for the courts to use the provision more
effectively and frequently than it is presently done.
What the Supreme Court observed in relation to oral evidence in a
criminal case applies equally to false statements in pleadings as they
form the foundation for civil proceedings and all further proceedings
and evidence are dependent on the averments / pleas therein.
Sanjeev Kumar Mittal vs The State,78 the Delhi High Court noted:
6.84 In
6.6 If there is falsehood in the pleadings (plaint, written statement
or replication), the task of the Court is also multiplied and a lis
that could be decided in a short time, then takes several years. It
is the legal duty of every party to state in the pleadings the true
facts and if they do not, they must suffer the consequences and the
Court should not hold back from taking action.
6.16 In an effort to redeem the situation, not only realistic costs and
full compensation in favour of the winning party against the
wrongdoer are required, but, depending on the gravity of the
wrong, penal action against the wrongdoers is also called for.
Unless the judicial system protects itself from such wrongdoing
by taking cognizance, directing prosecution, and punishing those
found guilty, it will be failing in its duty to render justice to the
citizens. Litigation caused by false claims and defences will come
to be placed before the courts, load the dockets and delay delivery
of justice to those who are genuinely in need of it. …
See also paras 8.7 to 8.9 of the judgment.
6.85 The Supreme Court in Ramrameshwari Devi vs Nirmala Devi79 said:

52C … In appropriate cases the courts may consider ordering
prosecution otherwise it may not be possible to maintain
purity and sanctity of judicial proceedings.
6.86 In sum, because there is profitability from wrongdoing, and no action

is taken against those who make false averments in pleadings or
create confusion or otherwise obstruct and delay, the parties readily
resort to it. If the courts were to more frequently order prosecution
77 2008-8 SCC 34,’37 = AIR 2008 SC 2965

78 Testamentary Case No. 19 of 2004 decided by the Delhi High Court on
18.11.2010 and reported as 174 (2010) DLT 214 = 2011 (121) DRJ 328
Available as a PDF file on the Net. http://lobis.nic.in/dhc/JRM/judgement/1
8-11-2010 / JRM18112010PR192004.pdf
79 [4.07.2011] 2011-8 SCC 249 = 2011 (6) SCALE 677
73
for falsehood in pleadings, documents (or response) and evidence and

impose heavy costs for those presentations which fall short of perjury
but nevertheless were undesirable or intended to delay, and also do so
in respect of conduct that tends to obstruct and delay, a fair amount of
the problem will begin to find solution.
6.87 It is felt that the aforesaid practices, which are all within the confines
of the existing procedural law and the rules, and can be easily followed,
by the lawyers and the courts, will make a world of difference to the
reduction of court delays and otherwise to efficiency of the judicial
process. It will prevent accrual (and expansion) of fresh litigation or
simply, the effort will more than pay for itself in the long run.
6.88 If we keep in mind these ten points, not only each one of us will get
a degree of self-fulfillment, but litigation that today lasts 10 years
will then conclude in less than two years. The ‘costs’ of justice will
substantially reduce. Procedural reforms, when carried out, will bring
it to even less.
7. The Effort and its Worth
7.1 Before concluding, it may be added that a question is often put: While
trying to reduce the consumption of court time, will carrying out all
these pre-trial processes as also attention to restitution and ordering
perjury be worth it ?
7.2 The answer is simple. True, there will be effort and expense involved.
Spending a notional one hour on this will save approximately five hours
of court time and, more importantly, might finish the litigation with no
appeals and execution being necessary, and is therefore essential to do
complete justice.
7.3 The many (in the right) who abandon and give up en route (surrender
without getting their due as justice, or unable to bear the delays,
‘pay’ the party in the wrong only to receive what is otherwise theirs)
will receive justice. The Court’s doors will also be accessible by the
marginalised and the docket excluded of today. Public will come to
have greater trust and confidence in the justice system.
7.4 Alongside is another aspect. Over the past decades, the study of legal
reasoning and analysis has been given a short shrift in our law schools.
Further, despite its importance, it has not been given due attention
by us in the legal profession. However, it is never too late to begin
self-study of the subject, and it will not be long before we find that
74
it pays dividends – being able to more quickly grasp as also identify

the component of irrelevance and fallacies in the rival cases that are
presented before a court of law.
7.5 Doing our work is one thing, but we cannot forget that we have to:
(1) improve productivity (and prevent waste), and thereby
reduce the ‘cost’ of justice to the parties; and
(2) give some hope to those waiting in the queue (as also
those beyond the queue), who are in need of justice.
It does not feel good when a person who is before the Court (and in the
right), with increasing costs and delays, gets exhausted, fatigued and
surrenders to the wrongdoer – succumbs en route. We might treat it
as a disposal on compromise; but looking beneath the files, it would
reveal someone’s tears, which we as a part of justice system could not
be successful in wiping.
7.6 Allocating just about 2% of our time & effort in this direction so as to
develop our own thoughts and act as a constant reminder, will suffice.
The little extra effort will go a long way to deliver justice to the society
– and also give great personal satisfaction to each one of us.
To Conclude
7.7 Over the past two decades, there has been an impressive rise in the
GDP, but have the proportionate benefits been made available to the
non-rich, particularly the middle class who have contributed to this
rise ? And to what extent has lack of access to justice been responsible ?
Questions as these we cannot avoid pondering over.
7.8 The rule of law and access to justice with efficient justice delivery
systems fosters economic growth and social welfare. This is the
only way we can remove poverty. The wealth of a nation – which is
ultimately available to the citizens as social goods & services – today,
depends not so much on the availability of natural resources. It has
come to depend more on the human capital, including the intellectual
capital developed by its citizens, in an environment of quality set of
substantive laws and an efficient justice delivery system.
7.9 We study law, get the degree, follow it up by enrolment, and enter the
legal profession. To earn money within the four corners of ethics is a
career goal. Some enter the judicial services where service conditions
are far better than they were earlier. In this scenario, allocating a
small amount of our intellectual skills and labour towards thoughts,
actions and deeds in helping improve access to justice – or simply

75
justice delivery – in our country, in whichever way we can, is, today in

the twenty-first century, also part of our ‘Human Duty’.80
7.10 To conclude, what has been submitted is, in all humility, only a
collection of thoughts. It is for us to develop these further so that one
day we as a nation can proudly say: We have the best judicial system
in the world.
80 which corresponds to our claim for Human Rights

76
IN THE HIGH COURT OF DELHI AT NEW DELHI

C.S. (OS) No.391 of 2000
Dr. V.J.A. Flynn versus Union of India and Ors.

(Hon’ble Ms. Justice Gita Mittal)
O R D E R dated 11.01.2013
1. Pursuant to the last order, Dr. Arun Mohan, learned senior counsel
who was appointed as amicus curiae, is present. He submits that
the digitalized record of the case has been received by him. Dr. Arun
Mohan, learned amicus curiae has drawn the attention of this court
to the following format of the list of events in multi-column format in
which the parties may be required to give their factual narration with
regard to their case which would facilitate adjudication:
List of Events
in multi-column format
Plaintiff’s
Date Defendants’ version
version
Dfs-4, 6,
Dfs-1 & 2 8, 10, 11 Df-9
and 13
21.06.1994
keep on
DD . MM . YYYY
adding rows
Note: Prepare the list in landscape mode. Use the most telegraphic language.
Also give reference to court file page number as Vol : page
2. Learned counsel for the parties are agreeable to furnishing the list of
events in the above format. Let them do so.
3.
(portion not excerpted as not relevant) … The parties shall effect the
compliance and furnish the list of events in multi-column format
within a period of four weeks from today.
4.
(para 4 not excerpted as not relevant)
GITA MITTAL, J
January 11, 2013

77
O R D E R dated 22.02.2013
1-6. (paras 1 to 6 not excerpted as not relevant)
7. On request of counsel for the parties and Dr. Arun Mohan, learned
Amicus Curiae, the following directions were made on 11th January,
2013:-
1. Dr. Arun Mohan, learned amicus curiae has drawn the attention
of this court to the following format of the list of events in multi-
column format in which the parties may be required to give their
factual narration with regard to their case which would facilitate
adjudication:
List of Events
in multi-column format
Plaintiff’s
Date Defendants’ version
version
Dfs-4, 6,
Dfs-1 & 2 8, 10, 11 Df-9
and 13
21.06.1994
keep on
DD . MM . YYYY
adding rows
Note: Prepare the list in landscape mode. Use the most telegraphic language.
Also give reference to court file page number as Vol : page
2. Learned counsel for the parties are agreeable to furnishing the list
of events in the above format. Let them do so.
8. The plaintiff is stated to have filed table in the above format. It
is submitted by Dr. Arun Mohan, learned Amicus Curiae that the
dispute could be further narrowed down if (from the pleadings and
documents on record):
(i) In the dates selected by the plaintiff, defendants insert in the
respective cell, whatever the said defendant wishes to comment
in relation thereto.
(ii) If there is some relevant ‘date’ not selected by the plaintiff, the
defendants may add a row with the ‘date’ in the central column
and then insert matter (their comment) in the respective (right)
cell.
The defendants are at liberty to supply the omissions, if any, which are
so deemed by the defendants.
9. Preparing a table in the above format would facilitate reduction
of the factual dispute in the matter and assist expeditious
78
adjudication in the matter. The court is amply empowered to so

direct in exercise of inherent powers.
10. The parties shall ensure that the required information in the
above format is positively filed within two weeks of the completion
of the pleadings.
GITA MITTAL, J
March 22, 2013

79
178 (2011) DLT 462
IN THE HIGH COURT OF DELHI
C.S. (O.S.) No. 1671 of 2009
Mst. Kiran Chhabra versus Mr. Pawan Kumar Jain
JUDGMENT
1. Learned Counsel for the plaintiff has filed the brief note of submissions.
However, the learned Counsel has utterly failed to address the number
of judgments relating to the issues involved. Some of the relevant
judgments in this regard to the notice of this Court are Harshad
Chiman Lal Modi v. DLF Universal and Anr., AIR 2005 SC 4446, Shri
Sant Singh v. Shri K.G. Ringshia, CS(OS) No. 2011/1984 decided on
24th May, 2010, Splendor Landbase Limited v. Mirage Infra Limited
and Anr., CS(OS) No. 582/2009 decided on 8th February, 2010 and
Splendor Landbase Limited v. Mirage Infra Limited and Anr., FAO(OS)
No. 150/2010 decided on 9th April, 2010.
2. When the Court calls for written arguments to be submitted, it is

expected to be something as would assist the Court in its endeavour
to do justice and decide the case. Simply filing a list of judgments
and attaching photocopies does not assist the Court nor does filing
longwinded arguments which are not structured and properly arranged.
3. Written arguments, which Order XVIII Rule 2(3A) of the Code of Civil
Procedure also recognizes, ought to be such that would assist the
Court. The pattern would vary from case to case but generally Written
Arguments should comprise a very brief list of dates, the admitted
facts and the disputed facts. The points to be decided should be duly
formulated as questions or propositions. In case issues have been
framed, separate arguments on each issue are necessary unless two
or more issues are such which can be more conveniently addressed
together. The factual premises on which a particular argument is given
has to be stated on each issue so that the proposition can be appreciated
in that light.

80
4. 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.
5. If there are older judgments which have been 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.
6. After the judgments have been cited or portions excerpted, the ratio-
decided of the judgment needs to be stated, for, it is the ratio decided
and not the conclusion, that is binding as a precedent.
7. If there is a contention of the opposite side, it must be answered, and

not ignored or left for the court to look for an answer. When all the
points or proposition on which the arguments are addressed have been
stated, there has to be a summing up so that the Court can get a fair
idea of what the arguments are leading to.
8. Throughout these written arguments, page numbers and placitums of

the documents or other material on the court record, and the reported
judgment, must be given so that the Court can readily reach it in order
to verify.
9. Lastly, keeping them brief is more helpful than giving a long mass
of something which could even be incoherent. Structuring is most

81
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.
10. The parties are directed to file the written submissions not exceeding
five pages on the above terms along with the copies of the judgments
with relevant portions highlighted for the convenience of the court
at least one week before the next date of hearing. The photocopies of
the relevant pages of the documents already on record with relevant
portions highlighted be also attached to the written submissions for
ready reference and convenience of the Court.
Paras 11 & 12 not copied.
February 14, 2011 J. R. Midha, J

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The material in this presentation is adapted from the main research work:

Justice, Courts And Delays

Reducing the lifespan of Civil

Justice has much a wider connotation than merely settling a dispute

1.2 Literature on the first (docket exclusion) is meagre, although the

1.4 Rule of Law is the foundation of civilised society. It establishes a

Excerpts from Justice, Courts and Delays

1. What is the extent of injustice suffered by

2. What is the extent of injustice suffered by

3. Viewed from the perspective of the

4. Ofthose who come to Court, how many,

5. What (keeping in view his economic

Excerpts from Justice, Courts and Delays

1.11 An efficient and effective justice delivery system in the country is

1.13 There is a cascade effect in which the emergence of a problem in one

1.15 In terms of access to justice, going by plain socio-economic stratification

Excerpts from Justice, Courts and Delays

1.17 This problem – of succumbing en route – has assumed alarming

1.18 For a person embroiled in litigation, although he may be in the right,

1 whether as a plaintiff in the right or as a defendant

1.22 Law regulates progressively more aspects of relationships amongst

Excerpts from Justice, Courts and Delays

Procedural law and practice

1.25 To explain / analyse, some of the questions to be considered are:

practices work as an exogenous factor to break the loop of the various

Excerpts from Justice, Courts and Delays

7. The greater the the greater the: (1) incidence of the

case records were obtained and analysed by using reverse engineering.

1.34 To prevent this waste, here, one endeavour is to demonstrate: Whether

4 by carrying out a: ‘Stop, think, investigate and reverify.’

1.37 We may, here, try and look into

1.38 During this period, whatever

1.39 Unless we ponder over these

7 on which he bases his claim / defence

ultimately be the Court’s response. This is why it is important for

1.40 Litigation having commenced, judicial procedures can be likened to a

8 irresponsible or false denials, twists and distortions, and even concealments

1.44 Continuing, another schematic of the judicial process, appearing below,

1.46 Analysing this phenomena as also the thought process of a typical

10 once the case is decided, or the wrong exposed

actions and omissions are primarily influenced by what he perceives

1.53 Then, apart from reducing the current overloads12 or establishing

12 An overload on a court drastically reduces its productivity. Parties become

Excerpts from Justice, Courts and Delays

Excerpts from Justice, Courts and Delays

Excerpts from Justice, Courts and Delays

Excerpts from Justice, Courts and Delays

2.3 Examining it further, there is a difference between putting forward a

14 and preferably doing so after a ‘Stop, Think, Investigate and Reverify’

2.5 At this stage, it would be worthwhile asking oneself with a file of a

2.9 It becomes profitable because it is a general impression (and not a wrong

2.14 The creation and continuation (with obstructionist tactics) of most of

2.16 Before proceeding on thoughts towards solution, some observations

2.17 In Maria Margarida Sequeria Fernandes vs Erasmo Jack de Sequeria

16 2010-2 SCC 114

the proceedings before him. He has to always keep in mind that

In an endeavour to make the best use of existing procedures, and

18 [27.04.2012] 2012-6 SCC 430 = AIR 2012 SC 2010

3. Fact, Law and Application of Law

3.2 In Grand Vasant Residents Welfare Association vs DDA,20 a Division

3.4 Today, bulk of the court time is consumed in adjudicating controversies

20 LPA 775/2003 decided by a DB of the High Court of Delhi on 5.03.2014