Saturday, 19 May 2012

Draft format – Writ of Certiorari




Drafting / Institution of Writ petitions



Short title of the Petition


Index


Proforma (Roznama)


Synopsis of the case
The chronology of happening of events (acts and omissions of the parties) which led to the filing of this case.

Main points to be urged;

Acts (Statutes) and authorities (judgments) relied upon


Heading – 
Name and Place of the court,
Jurisdiction of the court,
Petition No.

Cause title –
Full Name, age, adult, Indian Inhabitant, place of residence / place of business of the Petitioners and Respondents


  1. Brief introduction of the parties, i.e. of Petitioner and Respondents. It must be secured that all necessary and formal parties are joined in the Petition / Complaint.

  1. The gist of the grievance of the Petitioner.

  1. Material and other relevant facts of the case:

Narration of material “Facts of the Case” is perhaps one of the most important skill of the draftsman, which really decides the “fate” and “length” of any litigation. Therefore, it is of core importance to understand what really constitute “Facts of the Case”.

The acts and omissions of the parties prior to the filing of the Petition constitute “Facts of the Case”; and “Facts of the Case” should not be misunderstood as interpretation and conclusions which are ordinarily drawn and alleged by the Parties from the said “Facts of the Case”; NOR the Evidence which are advanced in support of the “Facts of the Case” constitute any “Facts of the Case”.

Ordinarily, it is seen that parties to the litigation “argues and disputes” what “logically” flows from the “Facts of the Case”; and they sometimes really do not “dispute” the “Facts of the Case”.

Writ proceedings are “Summary” in nature. If the “Facts of the Case” are not in dispute, than, the High Court may proceed to adjudicate the Petition, based on undisputed “Facts of the Case” and interpretation and conclusions, whether logical or absurd, which are drawn and alleged by the Parties.

Each allegation should be contained in separate para; dates and numbers, amounts, should be expressed in figures as well as in words;

Where party pleading alleges any misrepresentation, fraud, breach of trust, wilful default or undue influence and in other alike cases, particulars of such allegation should be pleaded.

If there is any condition to be complied with before filing of the Petition, it must be stated that the said condition is complied with, or if it is not complied, stating the reasons for not complying with the same.

Where any document is relied in the Petition, the main part of the document may only be stated.

Where there is allegation of malice, fraudulent intention, knowledge or other condition of the mind of any person, necessary details may be incorporated.

Where there is allegation of “knowledge” of any fact, necessary details may be incorporated.

  1. the main point of controversy between you and Respondents, i.e. the Respondents is contending this and the Petitioner is contending this.

  1. Briefly stating the applicable provisions of law and relevant text of the authoritative judgments relied upon.

  1. submissions of the Petitioner in the light of (a) facts of the case and the position of law; (b) interpreting principles of statutes, (c) identifying the specific infirmities in the impugned Order / Notice / act of the Respondent;

  1. Drawing the apparent illegalities of the Respondent, in the light of the position of law.

  1. Drawing main points to be emphasized upon, to show that Petitioner, is either in law or in equity, entitled for the relief claimed.


  1. Where the Petition is filed by Authorized Representative / power of attorney holder – a para to that effect that POA is duly executed and Resolution, wherever necessary, is passed accordingly.

  1. Valuation of the Petition and applicable court fees: A Para thereby valuing the subject matter of the Petition and stating that the Petitioner accordingly pays the applicable Court fees.

  1. A Para narrating facts that this court has territorial and subject matter jurisdiction to adjudicate upon the present dispute and pass authoritative orders. For High Courts to assume Writ Jurisdiction, any one of the Condition must be satisfied – (a) The place of the Office of the Respondent “State” must be within the territorial jurisdiction of that High Court; OR (b) The Cause of action must have accrued within the territorial jurisdiction of that High Court, and it would be immaterial the place of the Office of the Respondents. The “Material acts and omissions” of the Parties, ordinarily, constitutes the “Cause of action”.

  1. Limitation: The date on which the cause of action have arose and stating that therefore the Petition is filed within a reasonable period after the accrual of the cause of action. There is no limitation period prescribed for instituting Writ Petitions; but in any case, any right must be exercised within a reasonable period of time after the accrual of the cause of action. If the Petition is filed after a long period from the date of accrual of action, then, a statement showing the grounds on which the Writ proceedings could not be preferred;

  1. A Para stating that the Petitioners, with the leave of the Hon'ble Court, shall be entitled to add / amend / delete any clause in the present Petition.

  1. No other Petition: A Para stating that the Petitioners has not filed any other Petition in respect of the reliefs claimed in this Petition, in any other Court of law; nor the Petitioner has any other efficacious alternative remedy other than to invoke the Writ jurisdiction of the Hon’ble ________High Court.

  1. A Para stating that no notice has been received of lodging a caveat by the opposite party; or if Notice of caveat has been received and the copy of this petition together with the annexure (if any) have been supplied to the caveator.

  1. Grounds for each relief claimed;

  1. Reliefs and Interim Reliefs, if any, claimed: In my view, drafting of Petition must start from the Prayer Clause, that is to say, one must be very clear in his mind as what are the Reliefs he is seeking from the Court and so he must first articulate the Reliefs to be claimed; and than proceed to draft the rest of the Petition. The Reliefs Claimed, of course, would depend upon the nature of Petition filed and it must be secured that Reliefs Claimed in the Petition, should fall within the Jurisdiction” of the Court.

18. The Petitioner and the Advocate of the Petitioner (If there is any) shall Sign at the end of the Petition, i.e. after Prayer Clause. The Petitioner shall sign on the right side of the page and the Advocate shall sign on the left side of the page. (Before Verification clause)

Standard Paragraphs in every Petition


Verification clause


Vakalatnama


Memorandum of Regd address of the Petitioner /Advocate on record


List of Documents relied upon



Exhibits


Affidavit in support of Petition



Docket


Please Note:

High Courts and Supreme Court has exclusive Jurisdiction to exercise Writ Jurisdiction; and therefore, it must be secured that the Petition is made in accordance and compliance to the applicable High Court / Supreme Court Rules in that behalf;


Check list before finalizing draft and before lodging –



Steps after Institution of petitions / complaints

1.                  Service of Copy of the Petition to the Respondent;
2.                  Affidavit of Service;
3.                  Admission stage of the Petition;
4.                  Issuance of Notice by the Court (Rule Nisi)
5.                  Reply of the Respondent;

6.                  Wherein it is alleged by the Petitioner / Complainant that Respondent has in any way made false statements / false declarations in his reply or has filed false Affidavit or has filed a forged document; or wherein it is alleged by the Respondent that Petitioner has made a false claim in the Petition / Complaint and/or that Petitioner / Complainant has made false statements / false declarations in his Petition / Complaint or has filed false Affidavit or has filed a forged document; Please refer following links:



6.                  Rejoinder of the Petitioner
7.                  Oral Arguments and Submission of Written Arguments
8.                  Judgment.





Related Links:

Imp Article of Constitution of India:
(Will be added soon)


Writ Jurisdiction – HC


Writ of Certiorari - Challenge to Subordinate Court Order / Ultra Vires acts of quasi judicial / tribunals / judicial authorities – [acting beyond Statutory Powers resulting in excess of jurisdiction)






Important Sections of Indian Evidence Act, 1872:
(Will be added soon)



Important Judgments
(Will be added soon)



Important aspects of any Litigations

Objective approach to any Litigation

Principles of Natural Justice

Transition to – “Due Process of law”: A “Proposition” to address almost every illegality
(Will be added soon)




Sentence of Caution


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