Advanced Civil Litigation: Practice, Procedure & Drafting

Welcome to Advanced Civil Litigation: Practice, Procedure & Drafting. Follow Programme Reader 02 — Core Concepts & Vocabulary, then practise in the learning system. Sign in and use the study header to open your authorised course. Select this published lesson. Start Course Tutor with Auto audio on: it teaches continuously, answers a typed question, then resumes. Begin with the three that juniors most often confuse. A judgment is the statement given by the judge of the grounds of the decision. A shopkeeper, Mr Verma, supplied goods to a company and was not paid. He sued. During the suit the company said it had a claim against him for defective goods supplied under an earlier, separate contract. The trial court passed an order refusing to frame an issue on that claim. Mr Verma's suit was later dismissed. He now asks you two questions: can the company still pursue its claim, and can he appeal. Work through the vocabulary. First, what was passed against Mr Verma at the end? A dismissal of the suit conclusively determines the rights of the parties in the matter in controversy, so it is a decree, and a first appeal lies as of right against it. Second, the earlier refusal to frame an issue was an order, and it is not among the orders made separately appealable, so it could not have been appealed on its own; but the Code permits an error in such an order to be taken as a ground in the appeal against the decree. Third, the company's claim. Because the company's claim arose out of a separate contract, it was never a set-off in the strict sense, which requires an ascertained sum recoverable in the same character. It could only have been a counterclaim, and a counterclaim must be properly pleaded in the written statement. If the company never filed it as a counterclaim, the dismissal of Mr Verma's suit does not decide the company's claim at all, and the company remains free to sue separately, subject to limitation. Now the drafting consequence. If you had acted for the company at the outset, the correct step was to plead the claim as a counterclaim in the written statement, with its own cause of action, its own valuation and its own court fee, so that it would survive independently. If you act for Mr Verma now, your memorandum of appeal must attack the decree and, within it, the refusal to frame the issue, and your advice must warn him that a separate suit by the company is still possible. Ask Course Tutor to explain this step: Second, the earlier refusal to frame an issue was an order, and it is not among the orders made separately appealable, so it could not have been appealed on its own; but the Code permits an error in such an order to be taken as a ground in the appeal against the decree. Say what you tried. Pause and try this source task. The trial court rejects your client's plaint at the threshold. Is that a decree or an order, and why does the answer matter? The source answer is: Rejection of a plaint is treated as a decree, because it conclusively determines the rights of the parties in that suit. It matters because a first appeal therefore lies as of right, and your client need not look for a discretionary remedy such as revision. Compare your method and result, correct an error, then continue. Use Stop to end Course Tutor.