Thursday, 24 June 2021

Adversarial and Inquisitorial Systems

Jay Shree Ram law students, professionals and aspirants. Welcome to my blog on the adversarial and inquisitorial systems of justice dispensing. The main objective of this blog is to understand the difference between two main classes of the legal system.

Adversarial and Inquisitorial Systems

Introduction:

Every legal system in this world can be broadly classified into two models: Adversarial and Inquisitorial. This classification is depending on the techniques of adjudication and justice delivery mechanisms but both the systems aim at dispensing justice. [1]

Adversarial legal system

Basic framework:

Advantages:

The use of cross-examination can be an effective way to test the credibility of witnesses presented; [1]
The parties may be more willing to accept the results when they are given effective control over the process. [1]

Disadvantages:

The cost of the justice system falls upon the parties. This creates an in-built discrimination amongst the litigants. Parties with better resources are able to access justice by hiring competent lawyers and presenting sophisticated evidences which may not be immediately available for parties that lack these resources. Accessibility and affordability to justice are important challenges for the adversarial system of dispute resolution. [1]
The role of lawyers and the procedural formalities, e.g. cross examination may prolong the trial and lead to delays in several matters. [1]
Judges play less active role; a judge is not duty bound to ascertain the truth but only to evaluate the matter based on the evidences presented before him/her. [1]

Inquisitorial legal system:

Basic working framework:

Advantages:

The system offers procedural efficiency as the active role of judges prevents delays and prolonged trials. [1]
The system preserves equality between the parties as even the stronger party with more resources and expert lawyers may not be able to influence the judges. [1]

Disadvantages:

In an inquisitorial system, since the judge steps into the shoes of an investigator, he/she can no longer remain neutral to evaluate the case with an open mind. [1]
There may be a lack of an incentive structure for judges to involve themselves in proper fact finding. [1]

Differences between adversarial and inquisitorial systems:

Sr. No.	Adversarial Legal System	Inquisitorial Legal System
1.	In an adversarial system, the parties in a legal proceeding develop their own theory of the case and gather evidence to support their claims.	In an inquisitorial legal system the parties come with the matter in dispute in their own words and can submit the evidence as required by the judge/decision maker.
2.	The parties are assisted by their lawyers who take a pro-active role in delivering justice to the litigants.	In an inquisitorial system, the judge/decision maker takes a centre-stage in dispensing justice.
3.	The lawyers gather evidence and even participate in cross-examination and scrutiny of evidence presented by the other disputing party.	The judge/decision maker decides the manner in which the evidence must be presented before the court. For example, the judge may decide for presentation of a specific form of evidence, i.e. oral (witness statement) or documentary (correspondence between the parties through letters/emails) or a combination of both. The judge then evaluates the evidence presented before him/her and decides upon the legal claims.
4.	The role of the judge/decision maker is rather passive as the judge decides the claims based solely on the evidences and arguments presented by the parties and their lawyers.	The role of the judge/decision maker is active as he/she determines the facts and issues in dispute.
5.	This is common law model.	This is an interventionist/investigative model.
6.	More reliance on cross examination and other techniques often used by lawyers to evaluate evidences of their opposing counsel.	Less reliance is placed on cross-examination and other techniques often used by lawyers to evaluate evidences of their opposing counsel.

Reference:

1) CBSE Class XII Legal Studies

Wednesday, 17 February 2021

Affidavit: Uses and types.

Jay shree Ram friends! How are you?

Here are notes on use of an affidavit and all of its types depending upon its use. Please read till the end. To support me please share and follow this blog.

Introduction with meaning and definition of Affidavit

Essential Features of An Affidavit

The components of an Affidavit

Use of Affidavit: -

An Affidavit can be required as a piece of documentation in any dispute before a court.

In Indian law, although an affidavit may be taken as proof of the facts stated therein, the courts have no jurisdiction to admit evidence by way of affidavit.

Affidavit is not treated as "evidence" within the meaning of Section 3 of the Evidence Act.

However, it was held by the Supreme Court that an affidavit can be used as evidence only if the court so orders for sufficient reasons, namely, the right of the opposite party to have the deponent produced for cross-examination.

Therefore, an affidavit cannot ordinarily be used as evidence in absence of a specific order of the court. Means there should be a specific order of the Court to use an Affidavit as Evidence.

Types of affidavit

There are various occasions or circumstances when a person needs an affidavit for a specific purpose and for that reason there are multiple as listed below:

Name Change Affidavits

1. General Name Change Affidavit

2. Change of Name After Marriage Affidavit

3. Change of Name of Minor Affidavit

4. One and the Same Person Affidavit

Change of Signature Affidavit

Address Proof Affidavit

Proof of Date or Proof of Birth Affidavit

Income Proof Affidavit

Joint Affidavit for Registration of Marriage

Affidavit for No-criminal record

Affidavit for Claim Settlement in Bank

Affidavit for Issue of Duplicate Certificates/Documents/Mark lists

First Child Affidavit

Affidavit for Educational Loan

Anti Ragging Affidavit

Affidavit for gap in education/employment

Passport Affidavits – also known as Annexure; Annexure are to be made strictly according to the formats issued by the Ministry of External Affairs

LPG Annexure

Affidavit of Heirship

Affidavit of Identity Theft

Affidavit of Small Estate

Affidavit of Support

Affidavit of Residence

Affidavit of Service

Divorce Affidavit

Financial Affidavit

The common times when an individual uses an affidavit are:

Property disputes

Divorce proceedings

Debt cases

Bail pleas

Family law issues

Estate planning

Legal issues

Name change

Identify theft cases

Death

Date of birth proof

Bail affidavit

To issue a legal notice

House declaration

Loan agreement

Rent agreement

In cases (sometimes) for service of process business

What Happens On Filing Of A False Affidavit?

Swearing of a false affidavit can make a person liable to be charged under the Indian Penal Code for the offence of Perjury. It is a grave matter which warrants strict action.

Such provisions ensure that persons who swear untruths in affidavits are aware of the consequences and to prevent them from committing such offences.

Monday, 8 February 2021

Preparation of Decree: O20 R6A

Code of Civil Procedure

¹[6A. Preparation of decree.—(1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced.

(2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the court shall for the purposes of rule 1 of Order XLI be treated as the decree. But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose.]

Note 1. Subs. by Act 104 of 1976, s. 70, for “names and descriptions of the parties” (w.e.f. 1-2-1977).

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Drawing up of a Decree

Rule 6A Order XX of Code of Civil Procedure,1908 states that a decree shall be drawn within 15 days of the judgement. An appeal can be favoured or preferred without filing a copy of a decree if it is not drawn within 15 days of the judgement.

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Further reading:

Decree

Judgment

Difference between Judgement and Decree

Reference:

1) https://blog.ipleaders.in/judgement-and-decree-under-cpc/

Notice to Surety of His Liability Under a Decree: Appendix H: No. 13

Code of Civil Procedure

No. 13: NOTICE TO SURETY OF HIS LIABILITY UNDER A DECREE (Section 145)

(Title)

WHEREAS you .......................................... did on ............................................. become liable as surety for the performance of any decree which might be passed against the said ......................................................... defendant in the above suit; and whereas a decree was passed on the ...................... day of .......................... 20....... against the said defendant for the payment of ............................................................ and whereas application has been made for execution of the said decree against you:

Take notice that you are hereby required on or before the................... day of............................ 20...... to show cause why the said decree should not be executed against you, and if no sufficient cause shall be, within the time specified, shown to the satisfaction of the Court, an order for its execution will forthwith issued in the terms of the said application.

GIVEN under my hand and the seal of the Court, this........................... day of................ 20...

Judge.

Note: In original bare act of CPC the year of date is 19...... but as we are more than 20 years ahead of 20th century I just changed the year of the date in the given format. But complete date should be written as per the documentary evidences.

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It is general format for "Notice to Surety of His Liability Under a Decree." This is given by the Court under Section 145 of the CPC.

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Further Reading:

Section 145. Enforcement of liability of surety.

Decree

Liability under a decree

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Contribution Between Judgement-Debtors

Code of Civil Procedure

Liability under a decree:

Persons liable jointly and severally under a decree are in the same position as joint promisors.

All the liable persons will bound a contribution to the extent of their respective shares towards the discharge of the decree. e.g. If A and B are the persons liable jointly and their share is 20% and 80% respectively then A have to contribute 20% towards discharge of the decree and B have to contribute 80% for the same.

A co-debtor may not be liable to contribute if he shows that the other co-debtor had an amount of joint money sufficient to discharge the decree. e.g. If A and B are the persons liable jointly and their share is 20% and 80% respectively. If A proves that B is having joint money which is sufficient to discharge the decree then A may not be liable to contribute towards discharge of decree.

A decree-holder can recover his decretal debt from one or more or any of the judgment-debtors and the latter can compel contribution from the other judgment debtors, who have not been compelled to pay. e.g. D is a decree-holder who can recover his decretal debt from A, B and C who are the judgement debtors. If D recovers all of his decretal debt from A then A can compel the contribution from B and C.

In the absence of a contract to the contrary, the liability to contribute is not affected by the release of any judgment-debtor by the decree-holder.

Vayangara Vadaka Vittil Manja v Pariyangot Padingara Kurupath Kadugochen

The question as to whether there is any right of contribution as between persons against whom a joint decree has been passed depends upon the question whether the defendants, in the former suit were wrong-doers in the sense that they knew or ought to have known that they were doing an illegal or wrongful act. In that case, no suit for contribution will lie. If an act is manifestly unlawful, or the doer of it knows it to be unlawful as constituting either a civil wrong or a criminal offense, he cannot maintain an action for contribution or indemnity to him for the commission of such act is also void. Thus, where a decree for costs against two defendants jointly was executed against one of them, who had set up a false defense in the suit in collusion with the other, and the former sue the latter for contribution. It was held that the suit would not lie.

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Further reading:

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Reference:

1) Ipleaders

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The components of an Affidavit

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Here are notes regarding components of an affidavit. Please read and get your knowledge improved. To support me please follow and share this blog. Thank you!

For previous reading please visit:

Introduction with meaning and definition of Affidavit

Essential Features of An Affidavit

The components of an Affidavit: -

The document's component parts are typically as follows:

1) A commencement which identifies the "affiant or deponent of truth", generally stating that “everything in it is true, under penalty of perjury, fine, or imprisonment”;

2) an attestation clause, usually a jurat, at the end certifying that the affiant or deponent made oath and the date;

3) signatures of the author and witness.

4) If an affidavit is notarized or authenticated, it will also include a caption with a venue (place) and title in reference to judicial proceedings.

In some cases, an introductory clause, called a preamble, is added attesting that the affiant or deponent personally appeared before the authenticating authority.

For further reading please visit:

Affidavit: Uses and types

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Essential Features of An Affidavit

Jay Shri Ram friends. How are you?

Here are notes regarding essential features of affidavit. Please read and get your knowledge improved. To support me please follow and share this blog. Thank you!

Previous articles

Introduction with meaning and definition of Affidavit

1) An Affidavit should be in writing: Since an Affidavit is used as a record in court; it has to be in writing. This is to make the person who makes the affidavit accountable for the contents sworn in the affidavit. It also deters people from making false claims since they amount to punishable offences.

2) It must be a declaration made by an individual: An Affidavit can be created only by an individual, and not by any artificial persons like Companies and other associations or Groups of individuals.

3) It must relate to facts alone: An Affidavit should mention only the facts according to the best knowledge of the deponent. The only exception to this rule is Interlocutory Applications submitted in civil proceedings which may be based on the belief of the deponent. However, it is subject to the rule that the source of the information shall be specified and that the deponent shall be subject to cross verification by the other party. It should not be based on mere inferences or assumptions.

4) It must be made in the first person: Affidavits cannot be created on behalf of other persons. The purpose is to prevent declaring of things beyond the reasonable knowledge of a person. It is the duty of the deponent to state facts which are known to him/her. However it is subject to the exception where affidavits are sworn on behalf of minor children or insane individuals.

5) It must be sworn before an officer or magistrate who is authorised to administer oath.

6) An affidavit can be sworn only before a person having authority to attest it.

For example, a name change affidavit may be attested either by a Notary Public or by an Executive or Judicial magistrate for documents created in India; while an affidavit for lost or damaged passport can be attested only by a Judicial or Executive Magistrate and it is beyond the authority of a Notary Public.

For further reading please visit:

The components of an Affidavit

Affidavit: Uses and types

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