1 Legal framework

1.1 What system of jurisprudence applies in your jurisdiction? What implications does this have for litigation?

Indian jurisprudence is largely based on the British common law system. This means that the judicial precedents passed by higher courts (eg, the Supreme Court and high courts) have binding value and are referred to in subsequent cases involving similar questions of law and fact which are dealt with by lower courts. Further, the courts follow an adversarial system.

However, India's legal system also incorporates elements of civil law, equitable law and customary and religious laws.

In this scenario, the implications for litigation are as follows:

  • There is a certain amount of predictability of outcomes in cases where the law is well settled by a decision passed by the Supreme Court or a division bench of a high court.
  • Both sides are entitled to legal representation and the court acts as a neutral umpire.
  • In some cases, the court may choose an equitable outcome rather than taking a strictly legalistic stance. The Indian Supreme Court has the power to do complete justice under Article 142 of the Indian Constitution and has used this power to render judgments that are based not on any legal statute, but rather on a perceived sense of justice.
  • Certain situations may arise where a personal or customary law conflicts with the provisions in a statute or the Constitution of India. The courts have sometimes given preference to personal laws by holding that the Constitution is not applicable in the private sphere; in other cases, the Supreme Court has intervened and tested customary laws/personal laws for their constitutionality. Thus, the outcome of litigation cannot be predicted in such cases.

1.2 What rules govern litigation in your jurisdiction?

The rules governing litigation are encapsulated in the relevant procedural codes. Civil disputes are typically governed by the Code of Civil Procedure, 1908; whereas criminal cases are governed by the Code of Criminal Procedure, 1973. Rules of evidence are contained in the Evidence Act, 1872.

Further, certain judicial authorities – such as the National Company Law Tribunal, the National Company Law Appellate Tribunal and the Debt Recovery Tribunal – are not bound by the Code of Civil Procedure or the Evidence Act, which typically govern civil disputes.

The state high courts (25 in all) and the Supreme Court of India also have their own rules governing procedure: the Supreme Court Rules, 2013 and the High Court Original Side or Appellate Side Rules, as the case may be. These are supplemental to the Code of Civil Procedure, the Code of Criminal Procedure and the Evidence Act.

In addition to the procedural and evidentiary rules, the relevant substantive acts passed by the Parliament and/or state legislatures applicable to a case – such as the Transfer of Property Act, 1882, the Contract Act, 1872 or the Indian Penal Code, 1860 – will govern the substantive rights of the parties.

Also, various rules framed by the Bar Council of India under the Advocates Act, 1961 govern the professional conduct of advocates in India.

1.3 Do any special regimes apply to specific claims?

Yes, special regimes apply to specific claims in many spheres. A number of tribunals and adjudicating authorities have been statutorily created under the Constitution to deal with claims in certain areas. Some of the regimes established are under:

  • the Consumer Protection Act, 2019;
  • the Securities and Exchange Board of India Act, 1992;
  • the National Green Tribunal Act, 2010;
  • the Insolvency and Bankruptcy Code, 2016;
  • the Companies Act, 2013;
  • the Right to Information Act, 2005;
  • the Armed Forces Tribunal Act, 2007; and
  • the various labour laws.

A common feature of most of these regimes is a body in the form of a tribunal that is quasi-judicial in nature and that has judicial members as well as members with expertise in the relevant subject area.

1.4 Which bilateral and multilateral instruments have relevance to litigation in your jurisdiction?

Many bilateral and multilateral instruments have relevance to litigation in India. For example, the New York Convention 1958 and the Geneva Convention 1927 are relevant, as India recognises and enforces foreign arbitral awards issued by arbitral tribunals in a country which has ratified the New York Convention or Geneva Convention.

Some of the relevant bilateral agreements include the following:

  • the Agreement between India and Morocco on legal and judicial cooperation in civil and commercial matters, including the service of summons, judicial documents, letters of request and the execution of judgment decrees and arbitral awards;
  • the Agreement between India and Oman on legal and judicial cooperation in civil and commercial matters;
  • the Agreement between India and Afghanistan on juridical and judicial cooperation in civil and commercial matters for the service of summons, judicial documents, commission, execution of judgments and arbitral awards;
  • the Treaty between India and Azerbaijan on legal and judicial cooperation in civil and commercial matters; and
  • the Treaty on mutual legal assistance in civil and commercial matters between India and Ukraine.

India has also entered into a number of bilateral investment treaties with countries including Brazil, Mauritius, Chile and Belarus.

2 Judicial structure

2.1 What courts exist in your jurisdiction and how are they structured?

Broadly speaking, there are three levels of courts.

The Supreme Court of India is the highest constitutional court and the highest court of appeal in the country. Appeals from the high courts and appellate tribunals (created under specific statutes) lie before the Supreme Court. It also entertains powers of original jurisdiction with respect to disputes between states or between a state and the central government. Further, it exercises writ jurisdiction under Article 32 of the Constitution, hearing disputes pertaining to infringement of fundamental rights of citizens. It also exercises advisory jurisdiction, providing opinions on questions of law or facts of public importance which are referred to it by the president under Article 143 of the Constitution. The Supreme Court also exercises review jurisdiction – that is, it has the power to review its own decisions under Article 137 of the Constitution.

The high courts are the highest court of law at the state or union territory level. High courts entertain appeals from courts that are subordinate to them (ie, district and session courts). Certain high courts (Bombay, Delhi, Kolkata and Madras) also exercise original jurisdiction with regard to disputes of a civil nature which meet the prescribed pecuniary limit. For instance, the Delhi High Court has a pecuniary jurisdiction of INR 20 million; therefore, suits with a value lower than INR 20 million will not be entertained by the Delhi High Court, but will be entertained by the concerned court at the district level.

The district and sessions courts are the highest courts in a district. Subordinate to them are the chief metropolitan magistrate, metropolitan magistrates, senior civil judges, civil judges and so on. Depending on the subject matter or value of the dispute, or the nature of the offence, the concerned court hears the matter at first instance.

This court system is supplemented by a system of tribunals. Tribunals have their own structure as established under their respective statutes. However, even in the case of tribunals, the ultimate court of appeal is the Supreme Court of India.

2.2 What specialist courts or tribunals exist in your jurisdiction?

There are a number of specialist courts and tribunals in India, which include the following:

  • The National Company Law Tribunal hears company and insolvency matters at the first instance.
  • The National Company Law Appellate Tribunal hears appeals against decisions of the National Company Law Tribunal and the Competition Commission of India.
  • The National Green Tribunal hears disputes under various environmental laws.
  • The Central Electricity Regulatory Commission and State Electricity Regulatory Commissions hear electricity-related matters at first instance.
  • The Appellate Tribunal for Electricity hears appeals from the Central Electricity Regulatory Commission or State Electricity Regulatory Commissions.
  • The State Commissions or District Forums hear consumer-related disputes at first instance, depending on the value of the dispute.
  • The National Consumer Disputes Redressal Commission hears consumer disputes with a value of more than INR 10 million at first instance. It also hears appeals from the State Commissions or District Forums.
  • The Income Tax Appellate Tribunal (ITAT) hears appeals from Direct Taxes Acts. Appeals against orders of the ITAT are heard by the high court, provided that a substantial question of law is involved.
  • The Central Administrative Tribunal hears disputes or complaints with regard to recruitment and conditions of service of persons appointed by the government or other authorities under the control of the government.
  • The Competition Commission of India hears competition-related disputes such as those involving abuse of dominant position or anti-competitive agreements.
  • The Customs, Excise and Service Tax Appellate Tribunal hears appeals against orders passed by the Commissioners of Customs and Excise and Service Tax under the Customs Act, 1962, the Central Excise Act, 1944 and the Finance Act 1994. It is also empowered to hear appeals against orders passed by the Designated Authority in relation to anti-dumping duties under the Customs Tariff Act, 1975, and appeals concerning customs house agent licensing.
  • The family courts hear family-related disputes such as those involving divorce or guardianship.
  • The labour courts hear labour-related disputes under the different labour laws in India.

3 Pre-litigation

3.1 What formalities apply before litigation can be commenced in your jurisdiction?

In India, in general, no codified pre-litigation formalities must be followed before commencing litigation. However, before litigation commences, the injured party will generally issue a legal notice setting out the details of the dispute – such as the damage caused, the breach and so on – to the other party, to inform the latter of its intention to initiate litigation. If the other party fails or refuses to comply, the injured party may initiate proceedings in the appropriate forum.

That said, pre-litigation formalities will depend on the nature of the dispute.

3.2 Do any pre-action protocols or similar rules apply prior to the commencement of litigation? What are the consequences of non-compliance?

There are no universal pre-action protocols applicable to all disputes across the board; instead, this will depend on the nature of the dispute. For example, where an operation creditor (ie, a creditor which is owed money for the supply of goods or services) wishes to initiate insolvency proceedings against a corporate debtor (ie, the party that owes it money), it must first issue a demand notice as per Section 8 of the Insolvency and Bankruptcy Code. If the operational creditor is not paid within 10 days or does not receive a response from the corporate debtor in terms of Section 8(2) of the code, it may initiate insolvency proceedings against the corporate debtor under the code.

General preconditions of advance service and payment of court fees also apply. If a party wishes to initiate proceedings against the government, it must serve the case papers on the relevant government authority before the case is actually heard by the court. Similarly, if a party has filed a caveat pre-empting litigation against it, then the prospective plaintiff must serve the case papers on that party before the case is heard by the court/tribunal. Failure to do so will prevent the case from being listed/put up for hearing before the court.

Failure to pay the requisite court fees (which will depend on the value or nature of the dispute) will prevent the case from being listed or heard by the court/tribunal. Ongoing non-compliance may result in dismissal of the case.

3.3 What other factors should a party consider before commencing litigation in your jurisdiction?

Court proceedings in India can be a time-consuming and costly affair. It may take years before a decision is delivered. Sometimes, a judge may get transferred while the case is pending, with a new judge appointed midway through, which may lead to further delay. Additionally, even if a favourable verdict is secured, the other side may appeal; indeed, many cases are appealed all the way up to the Supreme Court and this process can take years. Further, legal costs in India – such as court fees, the cost of engaging lawyers and other miscellaneous expenditure – can be very expensive and may be unaffordable for many.

Parties should also seek to understand the entire process of litigation – especially the mechanism for the enforcement of judgments.

Therefore, a party should properly assess its case and conduct a cost-benefit analysis before deciding whether to proceed with litigation.

4 Commencing litigation

4.1 What rules on limitations periods apply in your jurisdiction?

Limitation periods are generally governed by the Limitation Act, 1963. This statute sets out different limitation periods for different types of cases. Sometimes, additional provisions pertaining to limitation periods (eg, for filing an appeal under a statute) are also set out in the relevant statutes pertaining to the dispute.

4.2 What rules on jurisdiction and how this is determined apply in your jurisdiction?

Rules on jurisdiction are generally set out in the Code of Civil Procedure, 1908. The jurisdiction of a particular court or tribunal is determined on the basis of:

  • the subject matter of the dispute;
  • the value of the dispute; and
  • the place where the defendant resides or where the cause of action or part thereof arose.

Generally, there are two types of jurisdiction: territorial jurisdiction and pecuniary jurisdiction. First, depending on the nature of the dispute, one must determine which court has territorial jurisdiction. Typically, this will depend on:

  • where the defendant resides;
  • where the subject matter of the dispute is situated; or
  • the place where the cause of action or part thereof arose.

Next, one must determine pecuniary jurisdiction based on the value of the dispute. For instance, the Delhi High Court has a pecuniary jurisdiction of INR 20 million; as a result, suits with a value of under INR 20 million will not be entertained by the Delhi High Court, but will be heard by the relevant court at the district level.

Different statutes also include provisions on which court or tribunal will have jurisdiction to hear a case. For instance, if a case pertains to insolvency proceedings under the Insolvency and Bankruptcy Code, the National Company Law Tribunal (NCLT) will hear the matter. Which branch of the NCLT will hear the matter will depend on where the registered office of the corporate person (ie, the party against which the proceedings are initiated) is located, pursuant to Section 60(1) of the code. If the registered office is in New Delhi, then the NCLT, Principal Bench, New Delhi, will have jurisdiction to hear the matter.

4.3 Are class actions permitted in your jurisdiction?

Yes. Class actions are permitted in India, but they are not very popular. Order I, Rule 8 of the Code of Civil Procedure allows a person to sue or defend on behalf of others where they have the same interest in the suit.

The Consumer Protection Act also provides for the filing of a consumer complaint as a class. While the previous Consumer Protection Act, 1986 allowed consumer organisations and two or more consumers with the same interest to file a case, Section 17 of the new law allows the Central Consumer Protection Authority to initiate proceedings on behalf of consumers.

Section 245 of the Companies Act also provides for class actions.

4.4 What are the formal requirements for commencing litigation?

When commencing litigation in India, the prospective plaintiff typically issues a legal notice informing the other party of its grievance or dispute. If the grievance or dispute is not resolved, the prospective plaintiff will approach the court with its case, disclosing:

  • the nature of the dispute;
  • the jurisdiction of the court to hear the dispute; and
  • the nature of the relief sought.

If the court is prima facie satisfied as to the maintainability of the case, it will issue notice/summons to the other side to hear its case.

4.5 What are the procedural and substantive requirements for commencing litigation?

A party seeking to litigate in India must:

  • ensure that its plaint/petition/application is in the format prescribed by the court or tribunal that will hear the case – certain statutes also specify such formats;
  • investigate whether advance service of the court papers is required or whether the other side is on caveat – if so, the other side must be served with the court papers in advance; and
  • ensure that the requisite court fees have been paid, and that all necessary and proper parties to the proceedings have been accounted for.

4.6 Are interim remedies available in your jurisdiction? If so, how are they obtained?

Yes, interim remedies are available in India. The broad principles regarding interim relief are set out in Order 39 of the Code of Civil Procedure. To obtain interim relief, a party must establish that:

  • it has a prima facie case;
  • the balance of convenience lies in its favour; and
  • it would suffer irreparable loss and injury if interim relief were not granted.

An application for interim relief is typically submitted with the main plaint or petition, setting out the pleading for such interim relief.

4.7 Under what circumstances must security for costs be provided?

Order 25 of the Code of Civil Procedure provides for security for costs. The court, either ex officio or on an application by the defendant, may order the plaintiff to pay security for costs that are incurred or likely to be incurred in the following circumstances:

  • The plaintiff/all of the plaintiffs reside outside India; or
  • The plaintiff or none of the plaintiffs has sufficient immovable property within India, apart from the suit property.

However, this is a discretionary power of the court, which will be exercised if it is shown that this is necessary for the reasonable protection of the defendant.

5 Disclosure

5.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply to certain types of documents?

All necessary documents on which the plaintiff/petitioner/applicant wishes to rely must be filed along with the plaint/petition/application. Similarly, the defendant/respondent must file all necessary documents on which it wishes to rely together with its written statement/reply. If either party requires more information from the other party regarding facts or documents in the possession or power of that party, this may be obtained by way of interrogatories or discovery of documents. In India, a party is entitled to know only those facts that comprise part of its case (facta probanda), and not the facts by which its case may be proved (facta probantia).

Interrogatories are a series of questions posed by one party to the other with the intent of learning of the nature of the opponent's case and/or of supporting its own case by obtaining admissions or impeaching or destroying the opponent's case. They are permitted after the written statement is filed. They must be questions of fact and not as to conclusions of law, inferences of facts or construction of documents. Interrogatories must be answered by way of an affidavit. Impermissible interrogatories are those which:

  • seek to obtain discovery of facts that constitute evidence of the opponent's case;
  • pertain to confidential and privileged communication between a party and its legal advisers;
  • involve disclosures that would be injurious to the public interest;
  • are scandalous, irrelevant or not bona fide for the purpose of the suit;
  • are in the nature of cross-examination;
  • concern questions of law;
  • constitute a fishing expedition; or
  • are unreasonable, vexatious, prolix, oppressive, unnecessary or scandalous.

Any party to a suit may apply to the court to direct the other party to make discovery on oath of documents which are or were in its possession, custody or power relating to any matter in question in the suit. The court will exercise its discretion to allow or reject its request. Objection to such a request can be made on grounds such as the following:

  • The documents are irrelevant to the dispute;
  • The documents are privileged; or
  • The request would involve the disclosure of public official records which would be injurious to the public interest.

A party is entitled to inspect the documents referred to in the pleadings or affidavits or other documents in the possession or power of the other party not referred to in the pleadings, provided that it can satisfy the court that these are relevant to the case.

5.2 What rules on third-party disclosure apply in your jurisdiction?

Generally, in India, a party to a suit can apply to the court for an order of discovery only against a person that is also a party to the suit. However, where a suit is instituted by a nominal plaintiff (known as a ‘benamidar'), interested persons may be ordered to give discovery. Thus, discovery against third parties is allowed only to a limited extent.

5.3 What rules on privilege apply in your jurisdiction? Does attorney-client privilege extend to in-house counsel?

The rules on privileged communication are contained in the Evidence Act. For example, communications between a husband and a wife are privileged under Section 122 of the Evidence Act, provided that they are made during the marriage. Such information can also be disclosed if:

  • the person who made such communications or his or her representative gives free consent to such disclosure;
  • there is a suit between a married couple; or
  • one of the spouses has been prosecuted for a crime committed against the other.

Communications between attorneys and their clients are protected under Section 126 of the Evidence Act. However, to be privileged, such communications must:

  • be made during the existence of the client-attorney relationship; and
  • not be in furtherance of any illegal purpose.

Further, any fact observed by an attorney in the course of his or her engagement, showing that a crime or fraud has been committed since he or she was engaged by the client, will not be protected under this provision. This statutory protection – which is granted to barristers, attorneys, pleaders and vakil – is not available to in-house counsel. An advocate is someone who is enrolled with the State Bar Council as per the Advocates Act, 1961. Where an advocate joins a company in full-time employment, he or he must give up this enrolment; on doing so, the aforesaid provision will no longer apply. However, if an in-house counsel does not give up this enrolment and continues to provide legal advice to his or her employer, the situation may be different. That said, the courts must decide this issue, which has not happened thus far.

Similarly, the Evidence Act also protects unpublished documents pertaining to the affairs of the state and official communications of public officers whose disclosure would harm the public interest. Information on how and when a magistrate or police or revenue official obtained any information regarding the commission of a crime is also privileged.

5.4 How have technological advances affected the disclosure process in your jurisdiction?

India has no disclosure process such as that followed in the United Kingdom. Although technological advances such as artificial intelligence tools are gradually being utilised in the context litigation, they are too new as yet to have been incorporated into the Indian judicial system.

5.5 What specific considerations should be borne in mind during the disclosure process, for both plaintiff and defendant?

The parties should ensure that:

  • the disclosures made or requested are pertinent to the dispute;
  • the disclosures requested do not harm or dilute their case in any way; and
  • the disclosures are properly checked and necessary objections are raised to prevent disclosures which could harm one's case.

6 Evidence

6.1 What types of evidence are permissible in your jurisdiction?

The Evidence Act typically recognises two types of evidence: oral evidence and documentary evidence, including electronic records. A party must prove its case through primary evidence. In the absence of primary evidence, in certain circumstances a party may be allowed to prove its case through secondary evidence. Another principle that should be kept in mind is the best evidence rule, which means that the best evidence or proof should be presented. In this regard, documentary evidence establishing a particular fact is given greater weight than oral evidence.

Only evidence which is admissible (ie, relevant to the issue or subject matter of the dispute) is permitted. If the evidence is relevant and satisfies all provisions of admissibility, it will be considered permissible and may be admitted to the court.

6.2 What rules apply to expert evidence in your jurisdiction? What specific considerations should be borne in mind when preparing and presenting expert evidence?

The rules on expert evidence are set out in the Evidence Act. Sections 45 and 45A specify who may be considered to be an expert, including those who are skilled in the fields of:

  • foreign law;
  • science and art;
  • identity of handwriting or fingerprints; and
  • electronic evidence.

Expert evidence can be provided only by a person who is an expert in the relevant field. The expert should have superior knowledge and practical experience in that field. Facts that are not otherwise relevant become relevant if they support or are inconsistent with the expert's opinion.

The first step is to identify an expert who is well known and has credibility in the field in which the evidence is required. Thereafter, the expert should be apprised of the factual background and asked pertinent questions pertaining to the issue at hand; he or she should give definitive answers to those questions as far as possible, so that the court can arrive at a conclusive decision. The opinion that the expert gives to the court should in no way be contrary to what he or she may have previously stated in interviews, articles or other materials which are available in the public domain or which could otherwise be obtained.

6.3 What other factors should be borne in mind when preparing and presenting evidence in your jurisdiction?

Evidence is the most crucial part of a case: it is the backbone of the case and can make or break it. An advocate should ensure that all relevant documents and information pertaining to the matter are provided to him or her as soon as possible. After a thorough document review and briefing with the client, the necessary pleadings will be prepared. The aim is to prove one's case by way of relevant documentary evidence, as far as possible. Oral evidence should be relied on only when proper documentary evidence is not available. Inconsistencies in the evidence produced must be thoroughly scrutinised.

7 Court proceedings

7.1 What case management powers do the courts have in your jurisdiction?

The Constitution of India vests extraordinary powers in the high courts relating to rules of court and conditions of service of their employees. The high courts have administrative power of superintendence over all courts of the state. Court management encompasses all actions that a court takes to monitor and control the progress of cases, from initiation to trial.

The courts have the power to frame rules and ensure that:

  • laws, regulations and court policies are followed;
  • the needs of court employees are properly addressed; and
  • administrative tasks are carried out.

The courts generally have the power to frame rules with respect to issues such as:

  • case management;
  • prioritisation of old cases;
  • supervision of court managers; and
  • inspection of subordinate courts.

Judicial officers must be proficient in the art of planning and preparing budgets, so that the budget meets the requirements for the following year and neither is excessive nor falls short. It further entails proper maintenance of the annual confidential reports of members of the subordinate judiciary.

7.2 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?

Proceedings before the courts or tribunals are public in nature. Proceedings can be kept confidential in certain circumstances, such as family disputes or cases involving offences against women. That said, the court record can be inspected or scrutinised only by the parties to a case.

7.3 How is the applicable law determined? What happens in the event of a conflict of laws?

The supreme law of the land is the Constitution of India. The courts and tribunals are also governed by relevant statutes passed by the Parliament and state legislatures, and rules and regulations framed thereunder. Additionally, the lower courts are bound by the decisions of the higher courts. Decisions of the Supreme Court are binding on all courts and tribunals in India. The statute with the closest connection to a given dispute will apply to the dispute. Tribunals created under specific statutes have well-defined jurisdiction – for example, the National Company Law Tribunal hears matters under the Companies Act and the Insolvency and Bankruptcy Code, whereas the State Commissions or District Forums hear matters relating to consumer disputes governed by the Consumer Protection Act.

The courts will try to harmonise international/foreign law with municipal law in light of the comity of nations principle; if conflicts remain, municipal law will be given precedence.

7.4 What rules apply to the joinder of third parties?

The courts' powers in relation to the joinder of third parties are set out in Order 1, Rule 10 of the Code of Civil Procedure. A tribunal may invoke these powers if they are prescribed under the statute under which it was established or the rules framed thereunder. If no such provision or rule is available to the tribunal, it may refer to the principles enshrined in Order 1, Rule 10. The court or tribunal may add third parties to the proceedings on an application by a party or suo moto.

This is a discretionary power that is exercised by the court or tribunal. The primary objective of joinder of a third party is to ensure that the suit is decided finally and conclusively on the merits in the presence of all parties. If the suit relates to property, the party sought to be added should have a direct interest in the property. If the subject matter of the suit is a declaration regarding status or legal character, the direct interest principle may be relaxed if the court is of the opinion that this would put it in a better position to adjudicate upon the controversy at hand.

The principle of a necessary and proper party is also important when adding a third party to the proceedings. A ‘necessary' party is one:

  • whose presence is indispensable to the suit;
  • against which relief is sought; and
  • in whose absence an effective order cannot be passed.

A ‘proper' party is one in whose absence an effective order can be passed, but whose presence is necessary for a complete and final decision on the issue at hand. Therefore, while it is important for the court to add a necessary party, this might not be the case with regard to a proper party.

7.5 How do the court proceedings unfold in your jurisdiction? What specific considerations should be borne in mind at each stage of the process, for both plaintiff and defendant?

Court proceedings will depend on the nature of the case. Suits broadly involve the following steps:

  • The plaint is filed, along with the necessary documents and applications.
  • The first hearing before the court is then held, at which the court will decide whether the plaintiff has made out a prima facie case that would warrant the issuance of summons to the defendant to appear and present its case.
  • Once service on the other side is effected, the pleadings are completed: the defendant files its written statement and counterclaim, if any, and the plaintiff files its replication and/or reply to the counterclaim.
  • Thereafter, the documents that have been filed will be admitted or denied.
  • When the trial commences, the court will begin by framing the issues.
  • Thereafter, any witnesses will be produced. Their testimony is generally given by way of affidavit. The other side will cross-examine each witness based on his or her testimony.
  • Once cross-examination of all witnesses is complete, the matter is finally heard by the court.

Different applications may also be filed by the parties during the process, such as:

  • an application for interim relief;
  • an application for rejection of the plaint;
  • the filing of interrogatories; or
  • a request for discovery and production of documents.

Typically, applications for interim relief and rejection of plaint are heard and decided as soon as possible by the court, once both sides have filed their respective pleadings.

The process is different in summary proceedings before tribunals and high courts, and in appeals before the relevant appellate forum. Unlike suits, these proceedings do not involve leading evidence in terms of the production and cross-examination of witnesses. They also do not involve the admission or denial of documents. The lengthy trial process further does not figure here. This is also the case at the Supreme Court, which will decide the case based on the pleadings filed before it and the lower court record.

The parties should be vigilant at each step of the proceedings. Each party must ensure that it has filed all necessary documents, and consider all issues relating to the filing of interrogatories and the discovery and production of documents. Objections to the filing of irrelevant or inadmissible evidence should be raised at the relevant time. Contradictions in witness testimony should be highlighted in cross-examination. The defendant should scrutinise the plaint and the papers filed alongside it to see whether it might be feasible to file an application for rejection of plaint. The plaintiff should be vigilant in ensuring that the defendant files its written statement in time and should move the court in the event of any violation by the defendant.

7.6 What is the typical timeframe for the court proceedings?

In India, litigation is a time-consuming process. While the courts and tribunals endeavour to decide cases as quickly as possible, this nonetheless takes some considerable time. Suits in particular take a substantial amount of time – generally between three and seven years on average; some even take decades. Each appeal stage generally takes between two and three years. The primary reason for these lengthy timelines is the high volume of cases being heard by the courts and tribunals.

8 Judgment and remedies

8.1 What types of judgments, orders and other remedies are available in your jurisdiction?

Both judicial and extrajudicial remedies are available. Judicial remedies include legal and equitable relief. Legal relief can broadly be divided into constitutional and statutory relief. Statutory relief in civil cases ranges from injunctions to declarations and damages. In criminal cases, the typical relief available is in the form of punishment and/or monetary compensation.

As per the Code of Civil Procedure, adjudications by a court of law are issued as either decrees or orders. For a decision to be a decree:

  • there must be an adjudication in a suit;
  • it must determine the rights of the parties with regard to any or all matters in controversy;
  • this determination must be conclusive in nature; and
  • there must be a formal expression of such adjudication.

There are three types of decrees, as follows:

  • In a preliminary decree, the rights of the parties with regard to any or all matters in controversy are decided, but the suit is not finally disposed of. This is one stage in working out the rights of the parties, which will be finally adjudicated by a final decree. If a party does not challenge a preliminary decree, it is precluded from challenging this in any appeal resulting from the final decree.
  • A final decree finally disposes of the suit, settling all questions in dispute between the parties, with nothing remaining to be decided.
  • A decree may be partly preliminary and partly final. For example, in a suit for possession and mesne profit, the court may decree possession and direct enquiry into mesne profit. While the former is a final decree, the latter is a preliminary decree; but as both are contained in one decree, it is partly preliminary and partly final.

An order is a formal expression of any decision of a civil court which is not a decree. A judgment is a statement given by the court on the grounds of a decree or order.

An aggrieved party may appeal an order if this is permitted under the Code of Civil Procedure or the relevant statute, or a decree before a higher forum.

9 Appeals

9.1 On what grounds may a judgment be appealed in your jurisdiction?

The right of appeal is not an inherent right and must rather be provided for by statute. With regard to suits, a first-instance decision may be appealed on a question of fact or on law, or a mixed question of fact and law; whereas a second-instance decision may be appealed only on a question of law. Certain statutes – such as the Insolvency and Bankruptcy Code and the Arbitration Act – specify certain grounds based on which an appeal can be filed against an order or judgment issued by the National Company Law Tribunal or the National Company Law Appellate Tribunal, or an arbitral award, as the case may be.

The broad grounds of appeal include:

  • improper application of law to the facts;
  • patent illegality of the judgment;
  • arbitrariness;
  • non-consideration of material facts; and
  • violation of principles of natural justice.

9.2 What is the appeals process? Is the judgment stayed while the appeal is pending?

When filing an appeal, one must first identify the relevant appellate authority. Thereafter, the appeal should be filed in the format as prescribed by the relevant appellate forum. Typically, the appeal should disclose the relevant factual background leading up to the appeal, along with the grounds on which the lower court order is challenged. The appeal should be accompanied by the impugned lower court order and all relevant documents (which formed part of the lower court record) necessary for the adjudication of the appeal. The necessary procedural requirements – such as payment of court fees and advance service of the appeal papers on the other party, if required – must also be complied with.

By simply filing an appeal, the lower court order is not stayed. A specific request should be made to the appellate forum; and upon satisfying that forum that the impugned order or judgment should be stayed, the lower court order or judgment will be stayed.

9.3 What specific considerations should be borne in mind during the appeals process, for both plaintiff and defendant?

First, the winning party should be vigilant and file a caveat before the relevant appellate forum. The appellant should ensure that all relevant grounds are considered in the appeal. The party opposing the appeal should be vigilant of the grounds being considered in the appeal and object to any new facts being introduced at the appeal stage.

10 Enforcement

10.1 How are domestic judgments enforced in your jurisdiction?

Decrees are enforced by way of execution proceedings before the relevant executing court with jurisdiction – that is:

  • the court of first instance;
  • the court which actually passed the decree, in the case of an appellate decree; or
  • the court which has jurisdiction to try the suit at the time of execution, if the court of first instance has ceased to exist.

On receiving an application from the decree holder, the executing court may order:

  • execution of the decree by:
    • delivery of the movable property specifically decreed;
    • attachment and sale; or
    • sale without attachment;
  • arrest and detention of the judgment debtor; or
  • appointment of a receiver.

Such orders will be passed after once objections that may be raised by the judgment debtor have been heard.

Judgment and orders of the high courts and the Supreme Court which are not decrees may also be enforced through contempt proceedings.

10.2 How are foreign judgments enforced in your jurisdiction?

A foreign judgment or decree is not automatically enforceable in India. It must pass the test set out in Section 13 of the Code of Civil Procedure. Further, as per Section 44A of the code, foreign judgments are enforced on the basis of reciprocity. While India is not a signatory to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, it has entered into bilateral treaties with many countries on reciprocity in enforcement of judgments and decrees.

The process of executing a foreign decree or judgment passed in a reciprocating territory is similar to that of executing a domestic decree. The difference is that the judgment debtor can raise objections under Section 13 of the Code of Civil Procedure. However, in the case of a non-reciprocating state, the decree holder must file suit on the basis of the foreign decree or judgment. Once the suit is decreed, it can be executed in terms of the Code of Civil Procedure.

10.3 What specific considerations should be borne in mind during the enforcement process, for both plaintiff and defendant?

To obtain execution of a decree, the decree holder should conduct due diligence to ascertain the assets of the judgment debtor and seek disclosure of the same before the execution court. The decree holder should be vigilant and ensure that the judgment debtor does not alienate or dispose of its property for the purpose of frustrating the execution proceedings. The decree holder should approach the executing court swiftly and comply with all procedural requirement, including:

  • disclosing all necessary details in its execution application;
  • effecting service of notice of the execution proceedings upon the judgment debtor as per the Code of Civil Procedure; and
  • paying the requisite court fees.

The judgment debtor should raise all legitimate objections to execution of the decree that are available to it, including the objections under Section 13 and Section 44 A of the Code of Civil Procedure, in case of a foreign judgment.

11 Costs, fees and funding

11.1 What costs and fees are incurred when litigating in your jurisdiction?

When litigating in India, the primary costs are court fees and legal fees. Miscellaneous expenses may also be incurred by parties, such as those relating to the appointment of a receiver or local commissioner. As most filings are accompanied by an affidavit, the cost of having the affidavit sworn before an oath commissioner or notary public is also relevant. At times, the court may direct a party to secure the value of the dispute or part thereof by way of a cheque or demand draft; this should also be borne in mind. A party may also wish to conduct a cost-benefit analysis by appointing necessary professionals such as chartered accountants or independent valuers.

11.2 Are contingency fees and similar arrangements permitted in your jurisdiction?

No, contingency fees and similar arrangements are not permitted in India. The Bar Council of India strictly prohibits lawyers from charging contingency fees.

The Bar Council of India Rules state, in Part VI, Chapter II, Section II, Rule 20, that: "An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof."

In B Sunitha v The State of Telangana (2018) 1 SCC 638, the Supreme Court of India specifically held that advocates' fees that are charged on the basis of a percentage of the result of litigation are illegal.

11.3 Is third-party funding permitted in your jurisdiction?

Yes, third-party funding is permitted in India. In 2015, in Bar Council of India v AK Balaji, the Supreme Court confirmed the legal permissibility of third-party funding and observed that: "There appears to be no restriction on third parties (non-lawyers) funding the litigation and getting repaid after the outcome of the litigation." As yet, there is no legislative instrument that regulates third-party funding. However, the Code of Civil Procedure, as amended by a few Indian states – including Maharashtra, Karnataka, Gujarat and Madhya Pradesh – expressly acknowledges the role of financiers of plaintiffs' litigation costs and sets out the situations in which such financiers may be made a party to the proceedings.

11.4 What other strategies should parties consider to mitigate the costs of litigation?

The most effective ways to mitigate the cost of litigation are to ensure that:

  • it is brought to its logical conclusion in a timely manner; and
  • contracts are drafted effectively and dispute resolution clauses are clearly spelled out.

While certain aspects which may affect the timely disposal of the suit are beyond the control of the parties, other aspects – such as timely filing of pleadings and swift cross-examination – can be explored in order to mitigate costs.

It is also important to engage a professional legal firm that can follow up relentlessly. In the Indian court system, a lax legal representative might not press the court to set regular dates within shorter timeframes, might not appear at some listed hearings and could thus contribute to delays and thus increase the costs.

12 Trends and predictions

12.1 How would you describe the current litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The COVID-19 pandemic has dramatically changed the litigation landscape in India. While the pandemic has wreaked havoc around the world, it has also resulted in certain favourable changes. The pandemic has forced litigants, litigators and the courts to embrace new technology. Once-full courtrooms have been replaced by remote hearings, where a judge may be sitting in Delhi and the lawyers may be arguing their case from a different city or even a different country. Further, bulky paper filings in court have now been reduced to a folder on one's computer or tablet.

The end of the pandemic may also result in a return to the old methods; but that would be taking a step backwards. While reforms have taken place in the form of virtual hearings, e-pleadings and so on, this has been more of a stop-gap arrangement. The current reforms in this space also have their shortcomings. It appears that the government and courts may take steps to implement these arrangements on a more permanent basis. However, in doing so, the interests of litigants and access to justice must be the prime considerations.

13 Tips and traps

13.1 What would be your recommendations to parties facing litigation in your jurisdiction and what potential pitfalls would you highlight?

While potential litigants always feel that they have been wronged and have a good case, this is not always correct. Therefore, one should properly assess one's case and conduct a thorough cost-benefit analysis before commencing litigation. As litigation involves significant time, money and effort, this objective analysis is very relevant.

A litigant must always be vigilant not only of the proceedings, but also of the steps being taken by the other side outside the court.

One should always keep communication channels open with the other side open, should an opportunity for amicable settlement present itself.

The author would like to acknowledge the contribution of Shatrajit Banerji, Principal Associate Designate at Cyril Amarchand Mangaldas.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.