E-Paper
Writ or suit: A dilemma
Before the Constitution came into force (26 Jan. 1950) most lawyers had not even heard of writ petitions. Even in the first decade thereafter very few lawyers had started writ practice. The High Courts too were reluctant to entertain writ petitions whenever the remedy of suit in the Civil Court was available. They were also very technical about locus standi and also about the form of relief to be claimed or to be granted on a writ petition. Many petitions were thrown out on grounds of delay or laches.
Before the Constitution came into force (26 Jan. 1950) most lawyers had not even heard of writ petitions. Even in the first decade thereafter very few lawyers had started writ practice. The High Courts too were reluctant to entertain writ petitions whenever the remedy of suit in the Civil Court was available. They were also very technical about locus standi and also about the form of relief to be claimed or to be granted on a writ petition. Many petitions were thrown out on grounds of delay or laches.
Even today the rules relating to locus standi, alternative remedy, laches remain the same. But no judge today cites Ferris’s Extraordinary Remedies or British or American cases to apply these rules. The old rulings on these subjects are also now gathering dust and all the rules have been considerably relaxed, though occasional lip service is paid to them.
The trend started with the Supreme Court itself. Originally there was nothing like a Supreme Court Bar. Today there are thousands of lawyers who regularly practise in that court. The High Court Bars have also multiplied tens of times and are ever growing with the law degree colleges and universities enrolling thousands each and there remaining no restriction even about one year’s training under a senior.
The collective pressure of the Bar to entertain even untenable petitions and also to grant some sort of interim “relief” or if nothing else, at least to keep the petition pending and issue notice, and some judges’ attempt to court cheap popularity among them have all gone to alter the situation. The Supreme Court is no exception, though there the lawyers even today are more respectful and less prone to attempt bullying tactics. The judges there are able to reject at the threshold most Special Leave Petitions, and they come to court after reading the briefs and almost making up their mind, something unthinkable in the High Court.
In this altered scenario an aggrieved person seeking a remedy in courts is often left wondering whether to go to a local civil judge with a suit or to the High Court or the Supreme Court with a writ petition. Lawyers of High Court and civil court sometimes give conflicting advice often according to which court they practise in.
Earlier everyone went to the civil court as a matter of course. But not so any more. There are some inhibiting factors in both alternatives. In the High Court and even more in the Supreme Court, the lawyers are much more expensive, though court fee is nominal. In the lower court, except in a suit for injunction or declaration alone, the court fees are very high. The plaintiff in other suits is required to pay in the very beginning about 11% (in UP) of the value of his claim as court fee. Claim for mere injunction or declaration is not admissible if a larger relief can be claimed.
There are other relevant factors too. If it is only a monetary claim then normally only the civil court has jurisdiction. Writ jurisdiction does not contemplate such claims, though sometimes the claim, if against the government or any official agency (statutory or non-statutory), may be disguised as one for consequential relief to declaratory or injunctive remedy against some administrative action or inaction of the respondent.
Likewise in cases of breach of contract the civil court is the proper forum and not the writ court, but if the respondent is an official agency a writ petition may lie against non-award of contract for discriminatory reasons. In matters of distribution of largesse also the State has to act fairly and bona fide and not arbitrarily or by favouritism. If moreover, the contract is not purely commercial but has a statutory flavour the writ court has a wider jurisdiction. Even wrongful cancellation or curtailment of the term of such contract can be set right under Art.226.
The High Court will normally decline to entertain a writ petition where the contract contains an arbitration clause. For arbitration the procedure under the Arbitration and Conciliation Act has to be followed.
Very few High Court lawyers these days have had experience of practising in the lower courts. Thanks to the Advocates’ Act, it has become so easy to start practice direct in the High Court or even in the Supreme Court. So High Court lawyers having monthly income even in five or six figures need not be treated as more dependable than a good trial court lawyer in matters of drafting plaints or even applications to the Chief Justice for nomination of an arbitrator. Often they are even in the names of parties arrayed as respondent.
In a suit or arbitration application they would name the authority who granted the contract such as DM or Superintending Engineer PWD or the local officer of the telephone department instead of the State of UP or the BSNL, as the case may be. They make similar mistakes in preparing claims to be filed before the arbitrator.
The reason is that they are so used to name the officers concerned as respondents in a writ petition. But a money decree cannot be executed against the officers as they have unlike the government or a corporation, no legal identity which may be owning any property or having a bank account.
The Civil Procedure Code makes detailed provisions regarding names of parties. There are not applicable to writ petitions. Apart from array of parties a writ lawyer, however eminent, may not have so much experience as a good trial court lawyer, in respect of basic laws like the Transfer of Property Act, the personal laws of Hindus and Muslims, and so on.
Due to familiarity with only one type of litigation you should not be surprised if you come across such bloomers as making the child, whose guardianship is the subject of a petition, a party (respondent) or in a matrimonial petition framing reliefs as if it were a civil suit or writ petition.
What is absolutely necessary is that the lawyer must study carefully before drafting a petition or plaint, the statute to which it relates instead of relying merely on his experience or common sense or vague impressions about the law.
