Subordinate and Trial Judges’ Handbook

justice

Technical Terms

Law

  • Adjournment – Adjournment of cases of all kinds for hearing shall only be granted on proper application filed by Advocate-on-Record except where it is sought by a party conducting his case in person.
  • ‘Advocate’ means a person whose name is entered on the roll of advocates prepared and maintained by a State Bar Council under the Advocates Act, 1961 (25 of 1961); ‘Senior advocate’ means any advocate so designated under subsection (2) of Section 16 of the Advocates Act, 1961 (25 of 1961), and all such advocates whose names were borne on the roll of the senior advocates of the Court immediately before the commencement of Chapter III of the Advocates Act, 1961; An advocate on-record shall, on his filing a memorandum of appearance on behalf of a party accompanied by a Vakalatnama duly executed by the party should contain office address, roll  and telephone number.  He/she is entitled to act as well as to plead for the party in the case and to conduct and prosecute before the Court all proceedings that may be taken in respect of the said case or any application or miscellaneous application connected with the same or any decree or order passed therein. An advocate performs his/her duty as a court officer. No person having an advocate-on-record shall be heard in-person save by leave of the Court. A senior or other Advocate shall not appear or plead unless he is instructed by an Advocate-on-Record.
  • Affidavit-An affidavit for the purpose of any cause, appeal or matter before the Court may be sworn before a Notary or any authority mentioned in Section 139 of the Code or before a Registrar of the Court duly
    authorized in this behalf by the High Court, or before an Oath Commissioner. An affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications or miscellaneous applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated. In case of affidavits filed in respect of a minor or a person of unsound mind under Order VII of the Rules, the proposed guardian/affiant shall state “that he has no interest in the matter in question in the appeal or petition adverse to that of the minor and that he is a fit and proper person to be so appointed”. 
  • Arbitration Petition – A petition under Section 11(5) of the Arbitration and Conciliation Act, 1996, shall be registered as an Arbitration Petition.
  • Bench Clerk-The Bench Clerk shall update the status of the case in the computer (CIS)forthwith. The cause list for the following day shall be prepared taking into account also the said updation. 
  • ‘Code’ means the Code of Civil Procedure, 1908 (5 of 1908) or the Code of Criminal Procedure, 1973 (2 of 1974), as the case may be.
  • Constitution Bench-Every case involving a substantial question of law as to the interpretation of the Constitution under Article 145(3) or any Reference made under Article 143 of the Constitution heard by a Bench consisting of not less than five Judges. A Division Bench of two or more Judges may refer any cause, appeal or other proceedings, pending before it, to a larger Bench of not less than five Judges involving a substantial question of law as to the interpretation of the Constitution, as per proviso to Article 145(3) of the Constitution of India.
  • Cost– Subject to any provisions of any statute or  Rules, the costs of an incidental to all proceedings shall be in the discretion of the Court
  • Contempt Petition – A petition under Section 2(b) of the Contempt of Courts Act, 1971.
  • District Court Rules and Regulations- to be followed
  • Dismiss for Default-an appellant, whose appeal has been dismissed for default of appearance, may, within
    thirty days of the order, present a petition praying that the appeal may be restored or as per Limitation Act.
  • Evidence– In the case of oral evidence, “Plaintiffs evidence” or “Defendant’s evidence” shall appear beneath the name of the court, and then the marginal note consisting of the number in the index and the witness’s name, with “Examination”, “Cross-Examination”, or “reExamination”, as the case may be. 
  • ‘High Court’ means-  as respects anything done before the commencement of the Constitution, a High Court within the meaning of Section 219 of the Government of India Act, 1935; and  as respects anything done or to be done after the commencement of the Constitution, a High Court established by or recognized under the Constitution;
  • ‘Interlocutory/interim application’ means an application filed in a pending main case praying for relief, interim or otherwise, from the Court;
  • Jail Petition-Jail petitions, transfer petitions and bail petitions, where the accused is in custody, special category cases and applications for early hearing shall not be deleted on account of excess matters, except in unavoidable circumstances.
  • ‘Judgment’ includes decree, order, sentence or determination of any Court, Tribunal, Judge or Judicial officer;
  • Judicial ConductTo be guided by Bangalore Principles 2002
  • Limitation– Where limitation has not been prescribed under any provision of law, every interlocutory application or miscellaneous application shall be filed within thirty days from the date of the order or the cause and shall be accompanied by an application for condonation of delay in case the same is barred by limitation.
  • Memo of appearance-A memo of appearance shall, inter alia, consist of a declaration signed by the advocate on-record that he has been authorized, instructed and engaged to appear, act and plead for the party.
  • Mentioning-Any party or advocate on-record desirous of out of turn listing or early hearing of an admission hearing case or application on the ground of urgency may make a Putup Application before the Bench at 10.30 a.m.
  • ‘Minor’ in relation to Order VII of the Rules means a person who has not attained majority within the meaning of Section 3 of the Indian Majority Act, 1875 (9 of 1875), where the appeal, petition or other proceeding relates to any of the matters mentioned in clauses (a) and (b) of Section 2 of that Act or to any other matter; Every suit, appeal, petition or other proceedings by a minor shall be instituted or defended in his name by his next friend or guardian, as the case may be.
  • Modification Order –The Supreme Court has held that “by describing an application as one for clarification or modification, though it is one for review, a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open court. The Court has further held that what cannot be done directly cannot be permitted to be done indirectly and that an application for ‘clarification’, ‘modification’ or ‘recall’ cannot be entertained where, in sum and substance, the same is clever move for review [APSRTC and Others v. Abdul Kareem [2007 (2) SCC 466].
  • Office Time – Except during vacation and holidays, the offices of the Court shall, subject to any order of the District Judge, remain open from 10.00 a.m. to 5.00 p.m. but only work of urgent nature may be admitted after 4.30 p.m. 
  • Party in-person-Any person not represented by an advocate on-record, subject to the
    provisions of Code, can be permitted by the Court to appear and argue his case in-person. He can remain present
    in Court at the time of hearing of his case and be escorted by a police personnel. A party in-person shall maintain decorum and dignity of the Court during the hearing of his case.
  • Petition– All petitions shall consist of paragraphs numbered consecutively and shall be fairly and legibly written, type-written or lithographed on one side of standard petition paper demy-foolscap size or on paper ordinarily used in High Courts for transcribing Petitions, with quarter margin and endorsed with the name of the Court , the full
    title or the full title of the petition as the case may be and the name and address of the Advocate-on-Record, if any, of the petitioner or of the petitioner where the petitioner intends to appear in person. A petitioner who desires to withdraw his petition shall give notice in writing to that effect. Where the petition is opposed, the opponent shall, subject to any agreement between the parties to the contrary, be entitled to apply to the Court for his costs, but
    where the petition is un-opposed, or where, in the case of an opposed petition, the parties have come to an agreement as to the costs of the petition, the petition may, if the Court deems fit, be disposed of in the
    same way mutatis mutandis as a Consent Petition. At the hearing of a petition not more than one counsel shall be
    allowed to be heard on one side.
  • ‘Record’  means the aggregate of papers  (including the pleadings, proceedings, evidence and Judgments) of a trial Court .
  • Registrar of Court – The Registrar is the executive head of the Office. He shall have custody of the records of the Court and shall exercise such powers as are assigned to him by District Judge. He keeps a list of all cases pending before the Court, and prepare, publishes and ports on the official website. The Registrar shall not be absent from the Court without leave of the District Judge, and any other officer of the Court without leave of the Registrar.
  • ‘Respondent’ includes an intervener;
  • Review- Subject to the law and the practice of the Court, the Court may review its judgment or order in a Civil proceeding on grounds mentioned in the Civil Code and on the ground of an error apparent on the face of the record.
  • Roster: The roster is prepared by the Registrar under the orders of the district judge. It may contain general or special instructions regarding assignment/allocation of work to a Court and includes allocation of work
    of a Court, on account of non-availability, to another Court.
  • Service of Notice– In a pending main case, no interlocutory application, affidavit in opposition, rejoinder affidavit, affidavit, a notice of motion or any other document shall be filed, unless a copy thereof has been previously served on the advocate on-record, or his registered clerk, of the opposite party or parties, as the case may be, or party in-person, who has entered appearance. 
  • Urgent Matters – The following cases shall be considered as cases of urgent nature:
    (i) cases relating to imminent apprehension of demolition of property;
    (ii) cases relating to dispossession/eviction;
    (iii) cases relating to violation of injunction order;
    (iv) cases seeking anticipatory bail and cases filed against order refusing/granting bail.
  • Writ Courts –  Supreme Court/High Courts have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III of the Constitution. Under the Extra-ordinary Original Jurisdiction, a writ petition in the nature of public interest litigation can be filed in the Supreme Court. 
  • Writing of Judgment
  • Vakalatnama– A vakalatnama filed by the State or its instrumentality under Article 12 of the Constitution or any body corporate shall be signed by the appropriate authority with official seal. Vakalatnama shall be of the same or the date prior to the drafting date of the plaint/petition. A vakalatnama shall –
    (i) be filed on demy-foolscap size paper and one side of the paper be used;
    (ii) mention the name, age, father’s name and address of the person(s) appointing the advocate as also the serial number in the array of parties;
    (iii) contain State Bar Council Enrolment Number, postal address, telephone number, mobile number, eMail address and registration number of the advocate on-record accepting the vakalatnama, for service;
    (iv) mention name of the person(s) executing the vakalatnama and advocate accepting the same, below their respective signatures;
    (d) The Advocates Welfare Fund Stamp shall be pasted on the header of the vakalatnama, without covering any part of the text.
    (e) Wherever a Vakalatnama is found to be defective in any respect, the case in which it has been filed shall be dealt with as a defective case.
  • Verification-In the verification of petitions, pleadings or other proceedings, statements based on personal knowledge shall be distinguished from the statements based on information and belief. In the case of statements based on information, the deponent shall disclose the source of his information, including official records.

Law

Caveat

Where a caveat has been lodged, it shall not remain in force after the expiry of ninety days from the date of lodgment unless the petition has been made before the expiry of the said period.

1. A person claiming a right to appear before the Court on the hearing of a petition may lodge a caveat in the matter, where such a petition is expected to be lodged or has been lodged.
2. The caveator shall forthwith, after lodging his caveat, give notice thereof to the plaintiff/petitioner, if the plaint/petition has been lodged.
3. Where, after a caveat has been lodged, any petition is filed in any matter, the Registrar shall serve a notice of lodging of the petition on the caveator.
4. Where a notice of any caveat has been served on the petitioner, he shall forthwith furnish the caveator, at the caveator’s expense, with a copy of the petition and copies of any papers lodged by the petitioner in support of his petition.

Where the caveator is represented by an advocate-on-record, his vakalatnama shall accompany the caveat.If the caveat is filed by the party in-person, his full postal address, telephone number, mobile number, eMail address, fax number with S.T.D. Code, if any, shall be furnished along with a memo of appearance. The Memo of appeal shall be in the form of a petition in writing,

Criminal Appeal

1. The memo of the petition of appeal shall, with necessary modifications and adaptations, be filed as per district court regulation or by using the High Court Form.

2. It shall state succinctly and briefly, in chronological order, the principal steps in the proceedings from its commencement till its conclusion in the Court appealed from and shall state clearly in the following order —

(a) (i) the name of the Judge and designation of the Court;
(ii) date of the impugned judgment/order; and
(iii) case number in which such judgment/order was passed by the original and/or appellate Court.
(b) facts of the case, in brief;
(c) question(s) of law;
(d) grounds, in seriatim;
(e) grounds for interim relief;
(f) main prayer; and
(g) interim relief, if any.

3. It shall contain the provisions of law under which the conviction has been recorded and the details of the sentence imposed, including fines, if any.

4. It shall be accompanied by a certified copy of the judgment or order appealed from.

5.  (a) A memorandum of appeal against conviction shall contain a declaration that the convicted person is in custody or has surrendered after the conviction as also the prison in which he is lodged.
(b) Where the appellant has not surrendered to the sentence, the petition of appeal shall not be accepted by the Registry/filing section, unless it is accompanied by an application for exemption from surrendering. A certified copy of the order of the Court in which the appellant has surrendered or a certificate of the competent officer of the Jail in which he is undergoing the sentence shall be filed as the proof of surrender. A mere attestation of the signatures on the vakalatnama from the Jail authorities shall not be considered as sufficient proof of surrender.

The Court may, where it thinks fit so to do in the interests of justice, direct the production of an accused person at the hearing of the appeal.

After the disposal of the appeal, the Registrar shall, with the utmost expedition, send a copy of the Court’s judgment,  order and LCR to the Court concerned.

Transfer Petition

A petition shall state concisely in separate paragraphs the facts and particulars of the case, the name of the High Court or other criminal court in which the case is pending, and the Court to which the transfer is sought and the grounds on which the relief is sought supported by an affidavit or affirmation. 

Law

Scrutiny and Processing of Plaint/Applications/Memo of Appeal

The following requirements shall be ensured for the purpose of registration of an interlocutory application or miscellaneous application, wherever applicable, in terms of the following checklist:

1. Whether prescribed Court fee has been paid, wherever applicable?
2. Whether case number has been correctly mentioned?
3. Whether cause title of the parties is correct?
4. Whether the applicant is a party in the main case or not?
5. Whether memo of parties has been filed, in case of application for directions?
6. Whether particulars of the impugned order are correct?
7. Whether the provision of the Rules under which an application is filed has been mentioned?
8. Whether the application has been filed by the advocate on-record in the main case; if not, whether ‘No Objection Certificate’ has been taken from the earlier advocate on-record.
9. Whether a copy of the application has been served on the opposite parties, who have entered appearance?
10. Whether copies of annexures, if filed, along with the application have been certified to be true copies?
11. Whether annexures marked in the index and body of the application have been put in chronological order?
12. Whether custody certificate from jail authority has been filed in case of bail application?
13. Whether application for exemption from filing certified copy or official translation has been filed, wherever required?
14. Whether contents of the application and annexures are clear, sharp, legible, in proper font size and in double space on one side of the paper?
15. Whether relief sought by the petitioner/applicant has been clearly stated?
16. Whether details of the case and particulars of the Trial Court  in the prayer portion have been corrected
mentioned?
17. Whether the main prayer clearly indicates the purpose of the application?
18. Whether affidavit has been duly filled/signed by the party and notarized by the Notary or any other Authority. 
19. Whether the application has been properly worded without any unnecessary remarks against the  Judge?
20.(a) In case of application for intervention or impleadment, it should be clearly mentioned whether impleadment is sought as respondent or petitioner; or intervenor, as the case may be.
(b) Whether full address of the party seeking impleadment or intervention has been given?
21. No impleadment or intervention application shall be entertained in a disposed of main case, unless otherwise ordered by the Court.
22.(a) In case of application for substitution, proper heading shall be given and it should clearly indicate as to which petitioner or respondent has died.
(b) The particulars of legal representative(s) of the deceased party should be stated, such as, relationship, address, minor or major, age and lineage.
(c) Death certificate having proper particulars, including name, parentage, age and date of death should be filed.
(d) If the application for substitution is filed by the proposed legal representative of the deceased party, it shall be accompanied by vakalatnama, except in the case of an application filed by a party other than the proposed legal representative of the deceased party.
(e) If the application for substitution is barred by limitation, it shall be accompanied by an application to set aside the abatement and application for condonation of delay in filing the said applications, wherever applicable.
(f) Delay shall be calculated from the date of death of a party or abatement, as the case may be.

23. If a miscellaneous application for restoration, recall or rehearing a case or application has been filed after the expiry of a period of thirty days from the date of order, it shall be accompanied by an application for condonation of delay.


References

  1. Supreme Court Practice and procedures
  2. Calcutta High Court Rules

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