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BASIC CONCEPTS IN FRAMING OF ISSUES AND JUDGMENT WRITING

 Deepthi Arivunithi, B.A., B.L.,

Principal District Judge, Erode

I. Framing of issues:

The role of framing of issues in a litigation is often underrated. The Hon'ble Apex

Court, the High Court of Madras and the High Courts of various States have often

observed that the framing of issue is the most important stage of a litigation. In fact, it

has been often observed that if the issues are framed accurately, then the time and energy

involved in the trial is shortened and the focus can be maintained in a better way on the

actual dispute between the parties. This article is only a small attempt to broach upon the

basic concepts in framing of issues, as understood by the author.

The term 'issue' is not specifically defined in the Civil Procedure Code, 1908

(hereinafter referred to as ' the CPC'). This is a term most commonly used day in and day

out. The dictionary meaning of the term 'issue' is stated as 'an important topic or problem

for debate or discussion'. In litigations, the term 'issue' assumes much significance

because, it is the bedrock of the litigation that lies before us. In this context, it is relevant

to look into the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act).

Section 5, which reads as follows.

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“5. Evidence may be given of facts in issue and relevant facts.—Evidence

may be given in any suit or proceedings of the existence or non-existence of
every fact in issue and of such other facts as are hereinafter declared to be
relevant, and of no others.”
Section 5 of the Evidence Act would indicate that the evidence has to be confined to the

facts in issue and relevant facts. Therefore, properly framed issues can direct and

indicate the footpath on which the trial has to proceed. Once, the foot path is properly

indicated, there can be no unnecessary diversions or deviations.

Having understood the importance of framing proper issues, it is necessary to

comprehend the stage during which the issues have to be framed. In a civil suit, the

framing of issues can be compared to the stage of framing of charges in a criminal case.

Of course, the comparison is only to indicate the importance of the stage and not to

even remotely suggest that both are similar. The stage of framing of issues commences

after the pleadings are completed. The pleadings in a civil case comprises of the plaint

and the written statement.

The aspects that have to be looked into at the time of framing the issues assumes

much importance. As is well known, Order XIV of the CPC deals with the settlement of

issues and determination of suit on issues of law or on issues agreed upon. Order XIV

has Rules 1 to 7. For easy understanding, the rules are dealt with hereunder one by one.

Rule 1 deals with the framing of issues. Clause (1) would read as follows. 'Issues
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arise when a material proposition of fact or law is affirmed by the one party and denied

by the other.'

As we have already understood, issue is defined as an important topic or problem,

which has to be discussed. Now, on reading sub-clause (1) it is seen that the issue arises

from a 'material proposition of fact or law' and the same has to be affirmed by one party

and denied by other. Now it has to be seen as to what is a material proposition of fact or

law. Hence, referring to clause (2) of Rule 1 is relevant.

Clause (2) would state that material propositions are those propositions of law or

fact which the plaintiff must allege in order to show her right to sue or a fact that the

defendant must allege in order to constitute his defence. Thus, it is seen that the material

propositions are those facts that gives rise to the cause of action in a suit and the facts

that are put forth to resist the claim. For the said purpose, it is necessary that the

pleadings be analyzed carefully so as to separate the grain from the chaff. So, it is the

first duty the presiding officer, with the assistance of the parties and the pleaders to cull

out the material propositions in a case.

Now, a question may arise as to what could be the necessity to decipher the

material propositions in dispute in a case. As already referred herein above, s.5 of the

Evidence Act provides that the evidence has to be given to prove the existence or non-
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existence of a fact in issue and relevant fact. Therefore, unless the fact in issue is

unearthed, the evidence cannot be led in a proper manner. Clause (4) of Rule 1 provides

that the issues can be divided into two kinds, issues of fact and issues of law. Hence, the

first task of the presiding officer is to cull out the material propositions, which are

affirmed by one and denied by the other and then to classify it as issue of fact or of law.

For the purpose of narrowing down on the issues, the procedure to be adopted is

provided in Clause (5). It provides that on the first hearing of the suit, the Court shall

(1) after reading the plaint and the written statements, if any, and

(2) after examination under Rule 2 of Order X; and

(3) after hearing the parties or their pleader,

ascertain upon what material propositions of fact or of law the parties are at

variance, and shall thereupon proceed to frame and record the issue on which the right

decision of the case appears to depend. The words employed in the Clause would clearly

indicate that all the three steps have to be followed by the presiding officer prior to

framing of the issues. The second clause pertaining to examination of party under

Order X Rule 2 CPC. was introduced by the amendment Act 104 of 1976, s.64 w.e.f.

01.02.1977. It is interesting to note that the 27 th report of the Law Commission gave

particular emphasis to the introduction of the mandatory examination of the parties

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under Order X Rule 2 of the CPC. An extract of observation made in the report 1 is set

out hereunder for ready reference.

“29. The object of the examination under Order X' is to ascertain precisely
the matters which are in dispute between the parties. If a proper use is made
of the provisions contained in this Order, the Judge will, at an early stage of
the suit, be in a position to sift the chaff from the grain, and to pinpoint his
attention on the matters on which the parties are at variance. A complete
grasp of the case at an early stage of the suit will enable the Judge, when the
suit comes up for hearing, to dispose it of expeditiously. It will enable him to
narrow down the issues between the parties, and eliminate the need for
recording formal or irrelevant evidence. The parties to the suit can also
benefit by the examination under Order X. After such examination, they will
know exactly which of their contentions have survived the examination and
what they have to prove in support of their case. The Law Commission in its
Fourteenth Report, therefore, rightly stressed the importance of the provisions
of Order X.
Under Order X, however, it is discretionary for the Court to examine the
parties. In practice the salutary provisions of this Order are rarely used. The
Courts often get over these provisions by observing, that since the pleadings
are clear it is not necessary to examine the parties. We think, that in order
that the provisions of Order X may be effective and achieve the object in view,
the examination of parties by the Court should be made mandatory. The Law
should also briefly indicate the purpose for which the parties should be
examined. We recommend that Order X should be amended on these lines'.”
In fact such a recommendation was made in comparison with the methods adopted

in England and the United States of America. In fact, it is also relevant to take note of

the procedure followed by the United States of America, as observed in the Law

Commission report.

1 Twenty seventh law comission report – dated 13.12.1964 – Report on the Civil Procedure Code,
1908.
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“In America2 the object is achieved by what are known as "pre-trial

conferences". The relevant rule relating to pre-trial conferences is in the
following terms.
"In any action, the court may in its discretion direct the attorneys for the
parties to appear before it for a conference to consider---
(1) the simplification of the issues;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admission of fact and of documents which will
avoid unnecessary proof;
(4) the limitation of the number of expert witnesses;
(5) the advisability of a preliminary reference of issues to a master for
findings to be used in evidence when the trial is to be by jury;
(6) such other matters as may aid in the disposition of the action."
In America, pre-trial conferences have resulted in a large number of arrears
being wiped out3. The Law Commission has, in the Fourteenth Report,"
rejected the proposal for pre-trial conferences. It was of the opinion, that
Order X which provides for the examination of parties by the court, can serve
the same purpose. We generally agree with this view”
It is interesting to note that such a similar pre-trial conference, has been

introduced in the civil procedure code, by enactment of the Commercial Courts Act,

2018, wherein the case management hearing has been introduced under Order XVA.

However, it is to be noted that the case management hearing as introduced in CPC is not

related to the stage of framing of issues. The above discussion is to only emphasize the

2 'Rules of Civil Procedure for the United States District Courts, Rule 16
(14th Report, Vol. 1, pages 321-322).
3 "See articles in the Annual Magazine of the American Judicature Society, October--December
1956, particularly the one under the caption " Calendar Decongestion in the Southern Districts
of New York " by Irwing R. Kaufman. 314th Report, Vol. 1, pages 311-313.
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importance given to examining the parties under Order X Rule 2 CPC at the stage of

framing of issues.

Based on the rules of procedure as discussed above, the following questions, if

raised in relation to the pleadings, could be helpful in narrowing down on the issues.

 What is the relief for which the suit/counter claim is filed?

 What are the averments which support the cause of action and are relevant to

that claim?

 Are there any questions of law involved in the suit?

While saying so, the practice of framing issues based on the relief has been

deprecated by the Hon'ble Apex Court4 and the Hon'ble High Courts5. The main reason

for such observation is that the real issues are not focused if such improper issues are

framed.

For example:-

The suit is one for partition claimed by the plaintiff under s. 8 of the Hindu
Succession Act. The plaintiff 'A' being a daughter claims share in her father's
self acquired property after he died intestate. The suit is filed against her
brothers 'B' and 'C'. The sons would claim that the father executed a Will
4 AIR 2001 SC 490 Makhan Lal Bangal v. Manas Bhunia and others
5 2006 (3) ALT 708 Maddaa Sai Lakshmi v. Medishetti Lakshmi Narasamma; (1999) 2 Kar LJ 548
Nanjundhachari v. The Chairman
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during his lifetime bequeathing the suit properties equally to 'B' and 'C'.
In such a suit, it is seen that the material propositions of fact are those
relating to the intestacy of the father, the execution of the Will, the validity of
the Will. Hence, the issues in the said suit has to focus on these material
proposition. The issue cannot be limited to 'Whether the plaintiff is entitled to
the relief of partition or not'. Hence, the identification of the material
proposition is very important. It is also relevant to note that the party who is
to commence the trial could also be determined if the material propositions
are properly identified.
In the example stated, it is clear that the facts regarding relationship of the

plaintiff with the defendants or with her father is not disputed. The plaintiff claims

intestacy and the defendant base their claim on a testamentary instrument. Hence, in the

said facts, it is for the defendant to prove the execution of the Will and its validity. If not

proved, the plaintiff is entitled to succeed to her claim. Therefore, an understanding of

the pleadings and framing of proper issues can help focus on the actual dispute between

the parties and also determine who has the right to begin the trial as per Order XVIII

Rule 1 CPC6.

Clause (6) would state that there is nothing in the rule that requires the court to

frame and record issues where the defendant at the first hearing of the suit makes no

defence. This clause would simply mean that if a perusal of the written statement reveals

no defence or if the case of the plaintiff is admitted, then the issues need not be framed.

6 Order XVIII Rule states as follows. Rule 1. Right to Begin – The plaintiff has a right to begin
unless the defendant admits the facts alleged by the plaintiff and contends that either in point
of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any
part of the relief which he seeks, which case the defendant has a right to begin.”
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The court can then resort to Order XII Rule 6 CPC and proceed to pass a judgment

based on the admissions.

For example:

The suit is one for recovery of money by 'A' against 'B' and 'C'. 'B' is the
husband of 'C'. The amount was jointly borrowed and the promissory note
signed by both of them. While so, 'C' left the matrimonial home and is living
separately. There is a proceeding for divorce pending between 'B' and 'C'.
Without knowledge of all these facts, 'A' files a suit for recovery of money as
against 'B' and 'C'. The cause of action is based on the Demand Promissory
note and the legal notice sent by A. The notice was refused by B and returned
as 'No Such addressee' from 'C'. Now, the suit is laid. 'B' and 'C' appear on
summons and engage separate counsels and file separate written statements.
The written statements contain several allegations by B against C and vice
versa, all pertaining to the breach of trust committed by each other. The
factum of loan and the execution of the promissory note is admitted. 'B' would
state that 'C' took the entire loan amount and spent it by herself. Further, that
he is not liable for the loan amount. 'C' would also make a similar allegation
against 'B'.
In this case, if the exercise as stated above is undertaken, we can see if the
issues can be drafted clearly.
- What is the relief? Recovery of money – there is no counter claim
- Averments relevant to the cause of action and claim – plaintiff – Date on
which loan was given, execution of promissory note, Legal notice, amount not
repaid
Defendants – receipt of loan and execution of promissory note admitted by 'B'
and 'C', No denial of legal notice
- Are there any questions involved in the case? No.
In this case, though there are averments by 'C' against 'B' and several
pleadings relating to their matrimonial relationship and breach of trust, the
same cannot be considered as a material proposition with relevance to the
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claim made by the plaintiff. Hence, the said averments cannot form the basis
of the issues. In fact, it is apparent that the case of the plaintiff has been
admitted by both the defendants and there is no triable issue in this case.
Hence, suit can be decreed based on the admission under Order XII Rule 6
C.P.C.
Recourse may also be had to Order XV Rule 1 CPC which empowers the court to

pronounce judgment if the parties are not at issue at the first hearing. The question

whether a suit can be decreed without framing of issues came up for consideration

before the Hon'ble High Court of Andhra Pradesh in the case of Desi Kedari v.

Huzarabad Co-operative Marketing Society Ltd7. In the said case, the plaintiff had filed

a suit for specific performance of the sale agreement against the defendant society. The

defendant society filed a written statement admitting the sale agreement, they also

expressed their readiness to perform the contract, subject to the approval of the authority

concerned. Holding that no permission was necessary to execute the sale deed, the trial

court decreed the suit on admission, without framing the issues. The correctness of the

judgment of the trial court was called in question before the High Court. In that case, it

was held by the Hon'ble High Court that when there is no denial of the material

proposition of facts or law, then issues need not be framed. Hence, it is the settled

position of law that when there is no denial of material propositions as stated in the

pleadings, the court need not frame issues.

The importance of framing of proper issues was emphasized by the Hon'ble Apex
7 AIR 1994 AP 301
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Court in Makhan Lal Bangal v. Manas Bhunia and others8, and it was observed as

follows.

“...An obligation is cast on the court to read the plaint/petition and the
written statement/counter, if any, and then determine with the assistance of
the learned counsel for the parties, the material propositions of fact or of
law on which the parties are at variance. The issues shall be framed and
recorded on which the decision of the case shall depend. The parties and
their counsel are bound to assist the court in the process of framing of
issues. Duty of the counsel does not belittle the primary obligation cast on
the court. It is for the Presiding Judge to exert himself so as to frame
sufficiently expressive issues. An omission to frame proper issues may be a
ground for remanding the case for retrial subject to prejudice having been
shown to have resulted by the omission. The petition may be disposed of at
the first hearing if it appears that the parties are not at issue on any
material question of law or of fact and the court may at once pronounce the
judgment. If the parties are at issue on some questions of law or of fact, the
suit or petition shall be fixed for trial calling upon the parties to adduce
evidence on issues of fact. The evidence shall be confined to issues and the
pleadings. No evidence on controversies, not covered by issues and the
pleadings, shall normally be admitted, for each party leads evidence in
support of issues the burden of proving which lies on him. The object of an
issue is to tie down the evidence and arguments and decision to a particular
question so that there may be no doubt on what the dispute is. The
judgment, then proceeding issue-wise would be able to tell precisely how the
dispute was decided.”

The above decision was followed by the Hon'ble High Court of Madras in CRP.

(PD)No.1836 of 2001, dated 27.07.2005 (A. Dhanasekaran v. V. K. O. Ramanathan

Chettiyar and R. Vijayalakshmi9). In another case before the Hon'ble High Court of
8 AIR 2001 SC 490
9 Relying on the decision of the Hon'ble Supreme Court, mentioned Supra, in para 17. it was
observed that “Issues are framed for a right decision of the case with an object to pinpoint the real
and substantial points of difference between the parties, specifically emerging out of the
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Karnataka10, the non-framing of proper issues was considered to have vitiated the trial

and on framing proper issues, the matter was remanded to the trial court for a de novo

trial.

The question arose whether the court can decide upon a contention raised without

framing of an issue. Answering the said issue, the Hon'ble Supreme Court has in the case

of Kali Prasad v. M/s. Bharat Coking Coal Lt.11, held that when the parties adduce

evidence and are fully aware as to what they should prove, they cannot later raise a

contention that the issue was not framed. It was also held by the High Court of

Bombay12 that if there are pleadings and sufficient evidence available on record, the

court can go into that question, even if issue is not framed and decide the aspect of the

matter.

Rule 2 of Order XIV CPC requires that the court should pronounce its judgment

on all issues. Clause (1) provides that notwithstanding the fact that the suit is decided

upon the preliminary issue, the court is required to pronounce judgment on all the issues.

Clause (2) deals with circumstances under which the court decides to try an issue of law

first. Where the court is of the opinion that any case may be disposed on an issue of law

pleadings. The object of framing the issue is to bring the evidence, arguments and the decision to
a particular question so that there would be no doubt as to what is the dispute. The correct
decision of the civil litigation largely depends upon the correct framing of issues.”
10 1999) 2 Kar LJ 548 Nanjundhachari v. The Chairman
11 AIR 1989 SC 1530.
12 Siddhi Chunnilal v. Suresh Gopikrishnan (2009) 6 BCR 857; See also Mohammed Kareemuddhin
Khan and others v. Syed Azam 1997 (2) ALT 625 (Andhra Pradesh)
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only, then it may try the issue first. The issue to be tried so is limited to the issues

relating to (1) jurisdiction of the court; and (2) a bar is created by any law for the time

being in force. If the court decides to take up the preliminary issue first, then the

settlement of other issues are to be postponed and be dealt with in accordance with the

decision in the preliminary issue.

Therefore, it is to be borne in mind that when the court decides to invoke Order

XIV Rule 2(2) CPC, the preliminary issue alone is to be taken up first. Even in that

circumstance, the court has to postpone the settlement of the other issues till the decision

is taken on the preliminary issue. Hence, Rule 2(2) CPC is to be understood to operate

on a distinct platform and it is not to be treated as an exception to Rule 2(1) which

requires the court to pronounce judgment on all issues.

Rule (3) speaks about the material which can be considered at the time of framing

of issues. They are (1) allegations made on oath by the parties, any person present on

their behalf or made by the pleaders of such parties; (2) allegations made in pleadings

and by way of answers to interrogatories and the contents of the documents produced by

either of the party. As per Rule (4), the Court has the power to compel the attendance of

a witness or to direct the production of a document by summons or for other reasons, for

the purpose of framing the issues. In this regard, it is relevant to recall that the

examination of the parties or a person present on his behalf cannot be considered as

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evidence for any purpose. In this regard, the Hon'ble Supreme Court has in no uncertain

terms held as follows.

“The object of oral examination under Rule 2 of Order 10 is to ascertain the

matters in controversy in suit, and not to record evidence or to secure
admissions. The statement made by a party in an examination under Rule 2 is
not under oath, and is not intended to be a substitute for a regular
examination under oath under Order 18 of the Code. It is intended to
elucidate what is obscure and vague in the pleadings. In other words, while
the purpose of an examination under Rule 1 is to clarify the stand of a party
in regard to the allegations made against him in the pleadings of the other
party, the purpose of the oral examination under Rule 2 is mainly to elucidate
the allegations even in his own pleadings, or any documents filed with the
pleadings. The power under Order 10 Rule 2 of the Code, cannot be
converted into a process of selective cross-examination by the court, before
the party has an opportunity to put forth his case at the trial.”
The above ratio was laid down in M/s. Kapil Corepacks Pvt. Ltd.& ... vs Harbans

Lal (D) through Lrs13. The difference as laid down by the Hon'ble Apex Court has to be

borne in mind by the trial courts.

Rules (6) and (7) deal with the circumstances in which the parties can agree upon

the issues to be decided between them and enter into an agreement in writing stating

certain conditions. If the court finds that the agreement is in good faith, then the court

may pronounce judgments on the agreed issues.

Thus, it is seen that the framing of issues is a very important stage in a civil suit

and there is a duty cast upon the Presiding Officer, with the help of the parties and their

13 (2010) 8 SCC 452

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pleaders to frame appropriate and correct issues to be decided in each case. Correctly

framed issue can help focus the attention of the court to the exact dispute before it and

serve as a pathway for the trial. It can in turn avoid irrelevant, voluminous evidence and

save the time and energy of all the stake holders concerned. As trial judges, one should

not fail to understand or underrate the importance of the stage of framing of issues. It is

also essential that the trial be commenced by the counsels after verifying the correctness

or otherwise of the issues that are framed. Skipping this important exercise would

definitely be disastrous and would not yield the desired result for the litigants before the

court.
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Judgment Writing

“Judges do not speak, as do actors, to please. They do not speak, as do

advocates, to persuade. They do not speak, as do historians, to recount the
past. They speak to give Judgment. And in their judgments, you will find
passages, which are worthy to rank with the greatest literature....”
- Lord Denning
Judgment is a unique piece that is written by the Judge, which is exclusive to the

facts of a particular case. A judgment can be compared to that of a work of a writer sans

the creativity and imagination. It is a well known principle that a judgment has to be

based on the facts and materials placed before the Judge. There is no room for creative

writing, imagination, conjectures or surmises. The first and the foremost thing to be

borne in mind while writing a judgment is about the audience. The audience to a

judgment are essentially the litigants involved in that particular case. Therefore, the

primary purpose of writing a judgment is to tell the audience, i.e. the parties before the

court, the reasons for which the decision was taken by the court. It is to be borne in mind

that litigants of all walks of life approach the court and therefore, the Judge is in a

position to dispense justice to all the different categories of the litigants.

What should be an ideal approach while writing a judgment is a topic which is

often debated. The prime reason for such a debate is the sacred principle that “Justice

should not only be done but should appear to have been done.” In this article, the focus
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of the author is only upon the trial courts, which the first forum approached by the

litigants. It is a well known fact that a litigant approaches the Court only as a last resort

as in our Indian Society there is a lot of stigma attached to bringing rival parties to the

court or to approach the Court with problems, they perceive to be essentially private in

nature. One cannot help but notice the faith of the litigant in this sacrosanct forum. So,

as trial judges, it is our primary duty to deliver a verdict that is transparent, cogent,

understandable and expressive.

The skill of judgment writing has to evolve as an attempt to travel beyond the

formal knowledge of the format to be adopted and the materials to be included. Only

when there is an attempt to introspect on the larger perspective, the skill can possibly be

acquired and sharpened.

The primary don'ts of a judgment14 are jotted down hereinafter for easy

understanding.

 The judgment should not be prolix (consisting of long complex sentences) and

verbose (using unnecessary words).

 A judgment should not be sketchy (lacking material particulars or incomplete),

vague and haphazard. Sketchy is also where a few points of either side are put

14 Input based on https://en.wikiversity.org/wiki/Indian_Law/Art_of_Writing_Judgment#cite_note-1

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together and findings recorded are vague.

 A judgment should not be laconic. Laconic means a form of judgment where the

losing litigant is not informed about the reason why he lost his case. The lack of

reasoning can never be covered up under the shield of brevity15.

 A judgment should not contain abbreviations and code words16.

 A judgment should not contain the emotions and sentiment of a judge 17.

Sentiment is a dangerous will-o'-the-wisp that misguides the adjudicating

authority to go away from the evidence and constrains the Judge to decide a case

being carried by his sympathy for either party.

 The judgment should not be lopsided (one-sided). A judgment should not appear

to have considered material produced by one party alone and in complete

disregard for the material produced by the other side.

 Hypothetical questions should not be discussed in a judgment 18. A hypothetical

question is one which is neither raised by the plaintiff nor the defendant and the

fact which does not find place in the materials produced before the judge.

15 Baiju v. Emperor AIR 1939 Oudh 37 It was observed that - ‘A Judge should remember that
brevity cannot be to the extent of obscurity.’
16 Corporation of Calcutta v. Padma Devi AI 1957 Cal 466
17 Governor General of India v. Bibi Saliman AIR 1948 Patna 388
18 Madan Mohan Dhur v. Netai Gaus Juv AIR 1934 Calcutta 30; Rehala Khatoon v. Iqtida Undan AIR
1943 Allahabad 184
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Though the above list is not exhaustive, the same could be taken as pointers. In this

aspect, what is expected of the Counsels also has to be looked into. A counsel presenting

his case before the Judge must remember that the contentions have to be raised only in

reference to the material before the court. Unnecessary reference to extraneous

circumstances, set out hereinbefore, has to be avoided. The contentions relating to

hypothetical defence or claim has to be avoided. A counsel should not undertake an

exercise to cover up or suppress any material that lies before the court. Conscious effort

should be taken by the Advocates concerned to put the court on notice of the existing

position of law.

Now, since the ‘don'ts’ have been discussed, it is necessary to look into the 'do's'

of judgment writing. Since, I am only going to discuss the general guidelines, I will not

refer XX CPC and s. 353 of the Criminal Procedure Code, 1973 (hereinafter referred to

as 'Cr.P.C.'). In the opinion of the author, the following may be the basic parts that have

to be incorporated in a judgment.

Parts of a judgment:

Introduction: The first part of a judgment is the introduction. It is not necessary that the

judgment has to be divided under headings or sub-headings. Each judge has a unique

style of writing and therefore, setting a standard format is unnecessary. However, a

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cogent narrative is imperative and therefore, the headings are only indicators. Firstly, in

each case, it is the duty of the judge to set out the introduction of the case. The same has

to contain the nature of the case filed by the plaintiff or the party concerned.

Facts: The next important part of the judgment is the facts put forth by the rival

parties. The same can be set out in a precise manner. There is no necessity to set out all

the facts as narrated in the plaint or to employ the same words. The court has a duty to

separate the grain from the chaff and to only indicate the material propositions of facts,

which are to be discussed in the decision.

The issues/point for determination: After setting out the facts presented, the court has

to advert to the issues or points framed, that are to be determined in the judgment. At

this point, the court must be cautious as to the number of issues and points indicated. A

judge must ensure that all such issues or points are answered in the judgment.

Evidence and Appreciation of Evidence: After setting out the issues, the court has to

determine, the order of determination of the issues. If more than one issue is answered

together, the reason has to be mentioned for clubbing the issues. The facts that are

relevant to that issue must be set out and the materials relied upon by either of the

parties has to be set out. At this juncture, it is to be noted that there is no necessity to

translate or quote the entire version of the witnesses. Only those statements which are
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relevant for appreciation of evidence may be stated. The same can be stated in a

narrative form. Unless found utmost necessary, the evidence of the party need not be

quoted within the judgment. Care should be taken that the witnesses are referred to in

the order of their ranking. For instance if reference is made to the 2nd plaintiff side

witness 'X', she may be referred to as PW2 'X'. The same would bring clarity to the

reasoning. Further, if any document is referred, they have to be denoted along with the

Exhibit number for easy reference.

One must understand that the judgment is not a justification to one's decision but a

statement of reasoning for the judgment. Therefore, it is not necessary for the judge to

justify himself, when the issue is answered. Rather, the reasoning given, by itself should

offer justification for the decision made. There is a subtle difference between the two,

that has to be deciphered by the presiding officer by self introspection or by going

through the judgments already pronounced by her. Once a while, it is also worthwhile to

undertake an objective exercise of self evaluation.

Application of law: The court has to indicate in its judgment as to what law has

been applied and the reasons for application of the law concerned. It is not necessary

that the court should restrict itself to the contentions of either parties in this regard. If the

court is of the opinion that some other law is applicable, the same may be applied. The

same also holds good for precedents.

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While referring to precedents, it is common practice to quote the head-note, which

in the opinion of the author is not proper. The head-note is written not by the Judge but

by the publishing agencies, who publish the judgments. The head-notes are given in

publications only to facilitate quick reference and the same do not denote the exact ratio

laid down by the Higher forum. It is also not out of place to mention that there are

instances wherein the head-note do not convey the exact meaning of the ratio laid down

in the cases. Therefore, the said practice has to be consciously refrained from. The right

approach is to read through the judgment and ascertain the law laid down and then to

quote the said portion from the judgment.

Another practice that is widely used is to merge the writings of the Hon'ble High

Court and the Hon'ble Supreme Court with the narration of our judgments. The said

practice is not healthy and the same in fact robs our opportunity to explore and improve

our writing skills. Quotations to be indicated separately to show that they are quoted

texts. It is also relevant to note that as trial judges, we are bound to follow the law and

the precedents laid down by the Hon'ble High Court and the Hon'ble Supreme Court.

Therefore, unless the issue is 'res integra' we may not have to use our interpretation

skills in the judgment. Therefore, careful attention has to be paid at the time of deciding

questions of law.
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Reasonings and Findings: Based on the appreciation of evidence and the

application of law, a judge is to render his reasonings and findings on the issue/point for

determination. The practice of throwing in the contentions of both sides randomly and

agreeing on one party's contention as reasoning has been deprecated in many cases. The

said practice therefore has to be abstained from. A simple presentation in an

understandable language is the key to write a good judgment. Therefore, the reasoning

of the court has to be indicated by employing its own words rather than just sailing with

one of the parties. It is to be ensured that the findings are based upon the reasoning

given. In some cases, it is seen that the finding given and the reasoning of the judge are

diametrically opposite and it gives all the reason for a counsel to contend before the

appellate forum that the judgment suffers from non-application of mind.

Conclusions/relief given: The most neglected portion is the conclusion/relief. The

application of mind at the time of granting relief is most important because, the relief

granted in the case will be used to for drafting the decree. An ill drafted decree when

presented for execution will be a great challenge for the court. It is also not out of place

to mention that s.11 of CPC which deals with res-judicata Explanation V would state

that when a relief is not expressly granted, the same is deemed to have been refused.

This provision also underscores the importance of granting specific relief in a judgment.

It is often noticed that the relief is not granted in express terms and is simply decided as
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'the suit is decreed as prayed for'. In those circumstances if the prayer is not drafted

properly, then ambiguity creeps into the decision. Hence, at the time of granting the

relief, the court has to apply its mind to the relief sought for and expressly indicate what

relief is granted and to what extent.

In certain cases, like the suit for specific performance, the plaintiff would have

deposited the balance sale consideration into court. However, at the time of deciding the

suit, the court would have omitted to take note of the amount. If the suit is decreed, then

the defendant is entitled to withdraw the amount on execution of the sale deed and if the

suit is dismissed, then the plaintiff is entitled to be refunded the amount so deposited. In

cases of recovery of money suits, the court must indicate the interest allowed after filing

of suit till date of realization. It must further indicate that the interest is to reckoned only

for the principal amount. Ideally the time to make such payment also can be indicated. If

the amount is reduced, then the cost has to be awarded proportionally. In case of

partition, the court has to declare the rights of the plaintiff and such other person, who

has submitted to the decree. Only a preliminary decree can be passed by the court. If the

property is agreed to be divided into metes and bounds during the course of trial or by

way of compromise or settlement, a preliminary decree and the final decree has to be

passed. Such a decree has to be engrossed in Non-Judicial Stamp paper. In case of

mortgage suits also, initially a preliminary decree is passed, and the amount due to the
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the plaintiff is declared by directing the defendant to pay a specified amount within the

prescribed time.

The above indicate only few examples to show the necessity of a judge to give her

attention at the time of granting relief in a suit. The above can be taken to be the aspects

that have to be necessarily covered in a judgment.

As far as criminal cases are concerned, after setting out the introduction, the

procedure followed by the court relating to furnishing of copies, availability of the legal

assistance to the accused, framing of charges are set out. The witnesses examined by the

prosecution and the defence are also set out. The narration of the witnesses can be stated

in a brief manner, if found necessary. Then the point for determination is framed. The

court while answering the point for determination has to consider the evidence,

appreciate the evidence, apply the law, give its reasoning and findings. The verdict of the

court to indicate specifically whether the accused was found guilty of the charges or not.

If found not guilty, the accused has to be acquitted. The bail bonds except the one

executed under s.437 A Cr.P.C. has to be discharged. The order relating to the material

objects, produced by the prosecution, has to be passed.

In case the accused is found guilty then he has to be heard on sentencing and the

reasoning has to be given with regard to the adequacy of sentence and the accused must
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be sentenced to the appropriate sentence. While considering the sentence, the court has

to also consider whether the victim require rehabilitation and accordingly also speak

about the reasons for granting and not granting compensation.

That the accused is to get the benefit of set-off under s.428 Cr.P.C. is to be

specifically stated. If the sentence is of life imprisonment then the availability of set-off

if s.433A Cr.P.C. invoked is to be specifically stated. The nature of the imprisonment

(rigorous/simple) has to be stated specifically. Whether the sentence is to run

concurrently or consecutively to be stated expressly. If it is not so stated, the the

sentence shall run consecutively under s.31 Cr.P.C. An interesting issue came up for

discussion before the Apex Court with regard to the application of s. 31 Cr.P.C. In

Muthuramalingam and others. v. State19 the question arose about the effect of a

consecutive sentence if two life imprisonment was imposed on a convict. In the said

case, it was held that in cases where two life imprisonments are granted, the said

sentences would be reimposed on each other and would run together. This was held by

considering the fact that life imprisonment would necessarily mean the remainder of a

life of a person and each man can be presumed to have only a single life. Hence, it was

so held and it was also observed that such a person cannot claim any automatic right to

remission.

19 2016 SCC Online SC 713

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In the end, I would like to conclude by saying that a good judgment is one that is

understandable and that covers all aspects. The litigant must know the reason why he

won or lost. A counsel must have the satisfaction that the points raised by him were

considered. Writing a judgment involves lot of preparation and reading the materials in

detailed manner. A judgment should be such that the mental and analytical process used

by the judge to arrive at the decision should be visible to others. In short, a judgment

should be readable, clear, precise, unambiguous and capable of being followed.