Advocate's Diary is a project aimed at addressing the dearth of literature on court practice and litigation advocacy.

In our previous column, we covered the stage of evidence in a civil suit and focused on the examination and cross-examination of witnesses. There is a significant interplay between the provisions of the Code of Civil Procedure (CPC) and the Indian Evidence Act (now the Bharatiya Sakshya Adhiniyam) during the stage of evidence.

This column will focus on the next and final stage in a civil suit – when pleaders on both sides bring their overall case together during oral arguments and the matter is finally decided by the court through the pronouncement of judgment and the passing of the final decree.

In many ways, the stage of arguments is one that is most symbolically associated with the practice of litigation: lawyers on both sides making impassioned arguments, as is often depicted in the media. While arguments made by lawyers in court in real life are not nearly as dramatic, they play a crucial role in bringing together the chain of events which was first laid down in a party’s substantive pleading (through the plaint or the written statement). It is developed subsequently through rejoinders, witness statements, evidence and cross-examination. Arguments in a civil trial focus on the issues framed by the court under Order XIV, since those form the main questions which the court will address in its final judgment and pass its decree disposing of the suit.

Under each issue, the burden of proof will be placed on either the plaintiff or the defendant and it is their role to satisfy the court that on the specific issue. Arguments on a specific issue will focus primarily on the relevant facts and evidence led before the court, before turning to legal authorities (relevant statutory provisions and judgments of higher courts).

Order XVIII Rule 3 of the CPC lays down the order in which the parties lead evidence and argue their case, in suits where multiple issues have been framed by the court. In such suits, the party beginning its case (usually the plaintiff) has the option to lead its evidence on those issues where the burden of proof is on the defendant, or to reserve it, in which case the defendant will begin leading evidence on that issue first. Then the plaintiff will have the right to reply (specifically and then in general on the whole case).

The right to begin the case rests with the plaintiff under Order XVIII Rule 1, except in those cases where the defendant has admitted to the facts presented by the plaintiff, and relies on either a point of law or on additional facts to allege that the plaintiff is not entitled to the relief sought in the case, where the defendant has the right to begin.

Order XVIII Rule 2(3A), which was inserted by the Amendment Act of 2002, provides that the party may address oral arguments on the case and shall file written arguments if the court so permits. Concise and cross-referenced written arguments play an important role in effective advocacy in civil litigation. Given the enormous pendency of cases in trial courts across India, judges are overburdened. Brief written arguments - with appropriate references to exhibits, judgments and pleadings - make the role of adjudication a lot more efficient and aids in the cause of effective and fast dispute resolution.

The requirements for commercial suits under the Commercial Courts Act are even stricter, although judges do exercise discretion in allowing parties to file written arguments after the completion of oral arguments. Under Rule 3A, as added through the amendment relating to the Commercial Courts Act, parties are required to file written arguments four weeks prior to the commencement of oral arguments in the case. Rule 3F also allows the court to limit the time for oral submissions in commercial matters, depending on the nature and complexity of the case. These changes, brought in respect of commercial suits, highlight the rigid timelines which epitomise the expedited procedure laid down under the Commercial Courts Act – which is followed all the way to oral arguments and the filing of written arguments.

Under Order XVIII Rule 2(3), the plaintiff has a right to reply generally to the whole case, which in court parlance is called an argument made in rejoinder. Arguments made in rejoinder, much like their namesake pleadings (which we discussed in an earlier column in this series), are limited to responding to any new factual or legal points raised by the defendant and are not supposed to reiterate the plaintiff’s original case.

After the completion of arguments, the case is reserved for the Court’s judgment and decree. The definitions of ‘judgment’ and ‘decree’ in Sections 2(9) and 2(2) of the CPC help explain their individual places in the civil adjudication process. A ‘judgment’ is the court’s written exposition of the reasons behind its decision. A ‘decree’, on the other hand, is the formal dispositive: informing the parties of the eventual result, containing its directions for the parties, division of costs etc. The decree becomes the enforceable portion of the court’s decision, while the judgment carries the reasons for why the court reached the result it did.

Order XX Rule 1 provides that a judgment shall be pronounced by a judge in open court and where it is being pronounced on a future date, the parties shall be provided notice of the date on which the judgment is to be pronounced. The proviso to Order XX Rule 1 states that the court shall make every endeavour to pronounce the judgment within 30 days from the date on which hearing in the case concluded. This period shall not ordinarily be extended beyond 60 days (only in cases where there are “exceptional and extraordinary circumstances”).

The prerequisites of a judgment are provided in Order XX Rule 4(2), which include a concise statement of facts, the issues framed, the decision of the court and the reasons for why the decision was reached. Order XX Rule 5 also states that the court shall give its findings on each of the issues framed, unless the findings of more than one issue is sufficient to dispose of the entire case. The requirement to provide cogent reasons is the hallmark of a judgment under Order XX Rule 4(2) and can be a fatal omission if found absent in a judgment.

The Supreme Court in Balraj Taneja v. Sunil Madan and in Union of India v. M/s Jain and Associates held that even in cases where the defendant fails to file a written statement and the plaintiff wins based on default, a court cannot mechanically pass a decree, without providing reasons in its judgment. The court must conduct an independent analysis on the merits of its case and comply with the requirements of Order XX Rule 4(2). A judgment is a self-contained, reasoned decision containing brief facts, the points for determination and the reasons forming the basis for the court’s verdict.

The Supreme Court’s decision in Balraj Taneja reinforces the fundamental principle of natural justice that any order passed by a judicial authority, especially a court of law, must be a speaking order and contain reasons for why the court decided a case in a particular manner.

The CPC also contains rules for what a decree should specify in respect of suits involving immovable property (Order XX Rule 9), movable property (Rule 10), possession and mesne profits (Rule 12), specific performance (Rule 12A), partnership (Rule 15) etc.

The pronouncement of the judgment and the passing of a decree brings a civil case to a close. But as is often said about litigation in India, the real battle for a litigant begins after he/she has secured a decree, in having it executed. This thorny issue of execution is what our series will turn to next.

Tanvi Dubey is an Advocate-on-Record at the Supreme Court of India, with a diverse practice ranging from civil, commercial and constitutional disputes to service matters.

Sumit Chatterjee is an LL.M. candidate at NYU School of Law and was previously a dispute resolution lawyer in Bangalore.

The authors would like to thank Mr Pranab and Ms Sloka for their research assistance with the article.