Monday, 20 June 2022

First Hearing

 First Hearing

  • In First Hearing, the first step that is to be taken is for the court to determine what the dispute is about. Both parties appear before the court and explain their facts and circumstances and the dispute from their perspective. 

  • Order XIII culminates the fact that at the first hearing, the court has to go through the pleadings and frame the questions i.e. it has to figure out what are the basic questions of dispute that arise in the matter.

  • Types: Facts, Law and Mixed. 

  • Facts have to be material which are obvious from pleadings and evidence. 

  • The court relies on the following for framing issues:

    • Pleadings

    • Interrogatories

    • Affidavit of Documents 

    • Affidavit of Evidence  

  • Ideally courts frame the issues but in order to gain a coverage of all the issues, courts ask the advocates to prepare draft issues. Then, the court goes through the draft issues and frame the final issues by the way of court order. 

  • These issues can be amended anytime before passing of the decree and the burden of proof to determine these issues lies on the parties equally. 

  • The issues are in a question format. 

  • If the party or advocates feel that the any issue has been missed out, they may apply to the court to include that issue with the reasoning of why the issue is extremely important to be answered for determination of the suit. 

  • Trial process is conducted with the focus on answering these issues. In case of a question of law, arguments and supporting judgements come and questions of fact has to be based on trials. 

  • A suit can be decided on a single issue provided that single issue is an issue of law and issue which questions the maintainability of the suit vis a vis limitation vis a vis jurisdiction. If the suit is dismissed, the order of dismissal applies as a final decision and sec. 11 will be applicable.   

  • The answer to the questions raised comes from evidence/ arguments. Hence, evidence stage of the suit commences where witnesses are examined, based on Affidavit of statement in chief, witnesses are cross examined and wherever required witness may be reexamined to bring about certain clarifications vis a vis any doubts which were created during the course of cross-examination (Order XVIII)

  • After this, both the council present the final arguments and if called for, written submissions are made before the court. Otherwise, the case is closed from the perspective of the advocates and the parties and it is for the judge to pronounce the decision.

  •  Cross examination and re-examination happens either in open court or before a commission i.e. where judges appoint a particular person to look into a certain matter either for enquiry purposes or for purposes of trial and evidence. Judges have a panel list of advocates who are appointed as commissioners, they sit in the courtrooms but after the court hour sometimes. They record the trial procedure and provide a report of the trial of the evidence admitted to the judge, which is then taken on record from the perspective of  evidence in a suit. Order 16, 18 and 26 deal with commissions. 

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