CHANAKYA NATIONAL LAW UNIVERSITY

“DISPUTE RESOLUTION SYSTEM IN INDIA:

LITIGATION”

FINAL DRAFT SUBMITTED IN THE FULFILLMENT OF THE COURSE

TITLED-

Legal methods and Research methodology

SUBMITTED TO- SUBMITTED BY-

Mr. VIJAYANT SINHA NAME: HARSHIT SHUKLA

Faculty of LRM COURSE: B.A, LL.B (Hons.)

ROLL NO: 1730

st
SEMESTER: 1

1
 DECLARATION BY CANDIDATE

I, hereby, declare that the work reported in the B.A., LL.B (Hons.) Project Report entitled
“DISPUTE RESOLUTION CENTRE IN INDIA:LITIGATION” submitted at Chanakya
National Law University is an authentic record of my work carried out under supervision of
Mr. VIJAYANT SINHA. I have not submitted this work elsewhere for any other degree or
diploma. I am fully responsible for the contents of my project report.

SIGNATURE OF CANDIDATE

NAME OF CANDIDATE: HARSHIT SHUKLA

CHANAKYA NATIONAL LAW UNIVERSITY

2
 ACKNOWLEDGEMENT

I would like to thank my faculty Mr. VIJAYANT SINHA whose guidance helped me a lot
with structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely

with materials throughout the project and without whom I couldn’t have completed it in the
present way.

I would like to extend my gratitude to my parents and all those unseen hands that helped me
out at every stage of my project.

THANK YOU

NAME: HARSHIT SHUKLA

ROLL NO: 1730

st
SEMESTER: 1

3
 INDEX

1. INTRODUCTION 5-7

2. ORIGIN OF LITIGATION SYSTEM 8-9

3. LITIGATION SYSTEM IN INDIA 10-15

4. LITIGATION SYSTEM IN OTHER COUNTRIES 16-18

5. ADVANTAGES OF LITIGATION SYSTEM 19-20

6. DISADVANTAGES OF LITIGATION SYSTEM 21-22

7. CONCLUSION AND SUGGESTION 23

8. BIBLIOGRAPPHY 24

4
 1.INTRODUCTION

Dispute resolution is the process of resolving disputes between parties. The term dispute
resolution may also be used interchangeably with conflict resolution, where conflict styles
can be used for different scenarios. One could theoretically include violence or even war as
part of this spectrum, but dispute resolution practitioners do not usually do so; violence rarely
ends disputes effectively, and indeed, often only escalates them.

The legal system provides resolutions for many different types of disputes. Some disputants
will not reach agreement through a collaborative process. Some disputes need the coercive
power of the state to enforce a resolution. Perhaps more importantly, many people want a
professional advocate when they become involved in a dispute, particularly if the dispute
involves perceived legal rights, legal wrongdoing, or threat of legal action against them. The
most common form of judicial dispute resolution is litigation. Litigation is initiated when one
party files suit against another. In the United States, litigation is facilitated by the government
within federal, state, and municipal courts. The proceedings are very formal and are governed
by rules, such as rules of evidence and procedure, which are established by the legislature.
Outcomes are decided by an impartial judge and/or jury, based on the factual questions of the
case and the application law. The verdict of the court is binding, not advisory; however, both
parties have the right to appeal the judgment to a higher court. Judicial dispute resolution is
typically adversarial in nature, for example, involving antagonistic parties or opposing
interests seeking an outcome most favorable to their position.1

Definition: Litigation is the use of the courts and civil justice system to resolve legal
controversies. Litigation can be used to compel opposing party to participate in the solution.

The Process: Litigation is begun by filing a lawsuit in a court. Specific rules of procedure,
discovery and presentation of evidence must be followed. The attorney for the other side will
want to take your deposition to learn more about the facts as you see them and your position
in the case. There can be a number of court appearances by you and/or your lawyer. If the
parties cannot agree how to settle the case, either the judge or a jury will decide the dispute
for you through a trial.2

1
https://en.wikipedia.org/wiki/Dispute_resolution
2
http://www.okbar.org/public/brochures/methodsforresolvingconflictsanddisputes.aspx
5
A trial is a formal judicial proceeding allowing full examination and determination of all the
issues between the parties with each side presenting its case to either a jury or a judge. The
decision is made by applying the facts of the case to the applicable law. That verdict or
decision can conclude the litigation process and be enforceable; however, if appropriate, the
loser can appeal the decision to a higher court. In some cases, the losing party may have to
pay the costs of the lawsuit and may have to pay the other party’s attorney fees.

If you cannot settle your differences through negotiation, mediation, arbitration or some
other means, then you should pursue litigation through the courts with your lawyer.

Characteristics of Litigation:

 Involuntary - a defendant must participate (no choice)

 Formal and structured rules of evidence and procedure

 Each party has the opportunity to present its evidence and argument and cross-
examine the other side - there are procedural safeguards

 Public - court proceedings and records are open

 The decision is based on the law

 The decision can be final and binding

 Right of appeal exists

 Losing party may pay costs

Aim and Objectives

The Researcher intends to study about dispute resolution centre in india with special
reference to litigation.

Hypothesis

1.The researcher believes that litigation is one of the most suitable method to resolve a
dispute.

6
2.The researcher believes that litigation is also most known method to resolve a dispute.

Review of Literature

Book: CIVIL PROCEDURE AND LITIGATION

Author: JACK S.EMERY

Publication date: January 21, 2001

Integrating legal theory with practice in a most unusual way, this user-friendly text uses an
intriguing story line to engage students. The book has well described the fundamentals of
litigation system.

Book: The International comparative legal guide to: LITIGATION AND

DISPUTE RESOLUUTION .

Author: CRAIG POLLACK

This guide provides corporate counsel and international practitioners with a comprehensive
worldwide legal analysis of the laws and regulations of litigation and dispute resolution.

Research Methodology

The research is totally based on doctrinal types of research work.

LIMITATIONS OF THE PROJECT

7
The most important limitation for this project is the Time limit. Insufficient time is the
limitation of this research. Also, no non doctrinal research was possible in this research
So only doctrinal research could take place.

8
 2. ORIGIN OF LITIGATION SYSTEM

The litigation system basically evolved among the Greeks. The reason behind the origin of the
litigation system among the Greeks was the then time disputed and chaos among the people. This
ancient custom is supposed to have been gradually developed into a system under which the parties
were denied the right to seek realization of their claims by private force and compelled to submit
their cases to authorities.3

The Constitution of India is supreme and it governs the legal system in India. The Constitution is
premised on separation of powers among the Judiciary, the Executive and the Legislature and
independence of each arm; hence the Judiciary in India is independent of the Executive and the
Legislature. The Indian legal system is based on the common law tradition and governed by the
principle of precedent (stare decisis).
The Civil Procedure Code of 1908 (CPC) codifies the procedure for
initiation and conduct of civil actions, in India. It deals inter alia, with:

Procedure for institution of civil case.

Rights of the parties to a case, viz. Plaintiff and Defendant.

Jurisdiction and parameters within which the Courts canfunction and pass diverse orders.

Specific rules for conduct of proceedings.

Right of Review, Appeals, Revision and Reference.

Appeals raising legal issues (from Orders passed by the High Courts), lie to the Supreme Court,
which is the Court of last instance. Per Article 141 of the Constitution of India, the decisions
of Supreme Court are binding on all Courts in India.Civil proceedings in India commence at the
Subordinate Courts level and in some States (depending upon the pecuniary jurisdiction) initiated
in High Court. India has set up numerous specialised Courts/Tribunals over the years to try matters
relating to a specific field viz., Company, Consumer,Taxation, Telecom, Banking, Capital Markets
and Securities.

3
https://en.wikipedia.org/wiki/Civil_law_(legal_system)#History
9
 WHERE THE LAW COMES FROM

There are two major ways in which legal principles are developed in the United States. One is
through appellate court decisions in individual cases, called case law. The other is through the
passage of laws by voters and legislative bodies, called statutes.4

CASE LAW

Legal principles that are developed by appellate courts when deciding appeals are collectively
termed the case law or common law. Since the 12th century, the common law has been England's
primary system of law. When the United States became independent, states adopted the English
common law as their law. Since that time, decisions by U.S. courts have developed a body of U.S.
case law which has superseded English commonlaw in most areas.

SIDE BAR--PRECEDENT

Precedent is a legal principle, created by a court decision, which provides an example or authority
for judges deciding similar issues later. Generally, decisions of higher courts (within a particular
system of courts) are mandatory precedent on lower courts within that system that is, the principle
announced by a higher court must be followed in later cases. For example, the California Supreme
Court decision that unmarried people who live together may enter into cohabitation agreements
(Marvin v. Marvin), is binding on all appellate courts and trial courts in California (which are lower
courts in relation to the California Supreme Court). Similarly, decisions of the U.S. Supreme
Court (the highest court in the country) are generally binding on all other courts in the U.S.

Decisions of lower courts are not binding on higher courts, although from time to time a higher
court will adopt the reasoning and conclusion of a lower court. Decisions by courts of the same
level (usually appellate courts) are considered persuasive authority. That is, they should always be
carefully considered by the later court but need not be followed.
As a practical matter, courts can usually find precedent for any direction they want to go in
deciding a particular case. Accordingly, precedent is used as often to justify a particular outcome in
a case as it is to guide the decision.

4
http://www.tenant.net/Court/Legsystm/jud23.html
10
 3. LITIGATION SYSTEM IN INDIA

The main disputes resolution methods in India are court litigation and arbitration. Most large
commercial contracts (particularly in the field of infrastructure, financial transactions and trading)
contain arbitration clauses. However, many large contracts do not contain an arbitration clause, and
the parties must use the courts for the resolution of their disputes. Commercial disputes in India are
referred to the Commercial Courts.
India has a common law system. Therefore, the system is adversarial and both parties must prove
their case. The standard of proof in civil matters is on a "preponderance of probabilities", while the
criminal courts apply a standard of proof "beyond reasonable doubt".
Additionally, various alternative disputes resolution methods are used within arbitration/court
proceedings, such as conciliation, mediation, dispute adjudication board, and so on.5

COURT STRUCTURE

India has a unitary court system. The Supreme Court of India is the highest court for all disputes
relating to both state laws and federal laws, and also decides on constitutional law issues.
Each state has a High Court, which is the highest court in the state (a few states also share a High
Court). High Courts have certain original powers. Writ petitions relating to legal and constitutional
rights can be filed directly before a High Court.
In addition, there are High Courts that were originally set up by a Charter (before India's
independence) and continue to have original jurisdiction over civil disputes of a value exceeding a
certain amount. The value of the claims must be above certain amount to be filed directly with
chartered High Courts.
The subordinate judiciary (both civil and criminal) is below the High Court. Their structure varies
depending on the state. Typically, there are district courts, munsif courts and other small causes
courts below the High Court. High Courts hear appeals from both civil and criminal courts.
Commercial disputes are brought before the Commercial Courts. In accordance with the
Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act
2015, Commercial Courts are constituted both at the level of the High Courts and the District
Courts. Commercial claims must be filed before the appropriate Commercial Court, except where
chartered High Courts have exclusive jurisdiction.
5
https://uk.practicallaw.thomsonreuters.com
11
PROVISION RELATED TO LAWYERS

Lawyers who are registered with the Bar Council of any Indian state have the right to appear before
any court or tribunal in India. There are only a few rare cases where lawyers are not entitled to
appear, for example in an enquiry for sexual harassment. However, in certain High Courts, only
solicitors can file claims and petitions (although this rule has now been relaxed). Similarly, only
advocates on record can file appeals and petitions with the Supreme Court of India, but any lawyer
can appear before the Court if he is instructed by an advocate on record.

Foreign lawyers cannot practise law in India. However, in certain cases, foreign lawyers have been
allowed to argue a case with the permission of the High Court. It is not entirely clear whether a
foreign lawyer can appear in arbitration proceedings or advise on commercial matters. However,
there are many instances where foreign lawyers have been appearing in arbitration proceedings.

COURT PROCEEDINGS

CONFIDENTIALITY

Court proceedings are not confidential. Judgments or orders passed by the courts are public
documents that are available on their websites. However, court proceedings are confidential in
certain cases in order to protect the identity of the victim and/or the accused (for example, rape
cases). Certain matrimonial cases are also heard in private. The publication of certain proceedings
is not allowed under section 7 of the Contempt of Courts Act 1971, for which the court can hold in
camera proceedings. Otherwise, all proceedings are open to the public.6

PRE ACTION CONDUCT

The Indian Code of Civil Procedure 1908 contains detailed provisions on the pre-trial process, but
these are rarely used. This process must be initiated by the parties. If an order is passed on an
application by a party, then penalties can be imposed for non-compliance. However, it is not usual
for penalties to be imposed in these cases. Typically, courts draw adverse inferences if parties do
not comply with any order.

6
https://www.out-law.com/topics/dispute-resolution-and-litigation
12
Court litigation

Court structure
India has a unitary court system. The Supreme Court of India is the highest court for all disputes
relating to both state laws and federal laws, and also decides on constitutional law issues.
Each state has a High Court, which is the highest court in the state (a few states also share a High
Court). High Courts have certain original powers. Writ petitions relating to legal and constitutional
rights can be filed directly before a High Court.
In addition, there are High Courts that were originally set up by a Charter (before India's
independence) and continue to have original jurisdiction over civil disputes of a value exceeding a
certain amount. The value of the claims must be above certain amount to be filed directly with
chartered High Courts.
The subordinate judiciary (both civil and criminal) is below the High Court. Their structure varies
depending on the state. Typically, there are district courts, munsif courts and other small causes
courts below the High Court. High Courts hear appeals from both civil and criminal courts.
Commercial disputes are brought before the Commercial Courts. In accordance with the
Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act
2015, Commercial Courts are constituted both at the level of the High Courts and the District
Courts. Commercial claims must be filed before the appropriate Commercial Court, except where
chartered High Courts have exclusive jurisdiction. Arbitration petitions that must be filed in the
High Court are heard by a two-member bench.7
The Commercial Courts must comply with strict timelines, including:
 30 to 120 days for filing a written statement.
 30 days for inspection of documents.
 15 days for admission/denial of documents.

Thereafter, the first case management meeting must be held within four weeks from the filing of
affidavit of admission/denial of documents. In this meeting, a further schedule will be fixed so that
arguments are completed within a period of six months and the judgment is then pronounced within
90 days.

7
http://litigation.findlaw.com/legal-system/glossary-courts-and-the-law.html
13
There are also many specialised tribunals, including the:
 National Company Law Tribunal.
 Competition Commission and Competition Appellate Tribunal, for anti-trust/competition
issues.
 Telecom Regulatory Authority and Telecom Dispute Settlement and Appellate Tribunal, for
telecom and broadcasting issues.
 Copyright Board, for certain copyright issues.
 Consumer Disputes Commission, for consumer issues including claims relating to insurance
matters.
 National Green Tribunal, for environmental matters.
 Board for Industrial and Financial Reconstruction and Appellate Authority for Industrial
and Financial Reconstruction.
 Debt Recovery Tribunal and Debt Recovery Appellate Tribunal.

A number of large commercial disputes are submitted to these specialised tribunals.

Main stages

Starting proceedings
Under the Indian Code of Civil Procedure 1908, a claimant starts proceedings by filing a plaint (the
claim). The claimant must also pay the requisite court fees (unless they file a petition as a pauper).
The court will then issue summons to the defendant. 8

Notice to the defendant and defence

When the suit is instituted, the court will normally issue summons to the defendant to appear and
answer the claim, and to file a written statement of defence. Every summons is accompanied with a
copy of the plaint. The summons is served either by an Officer of Court or by registered post with
acknowledgement due. In the case of refusal to accept the summons, alternative methods of service
of notice are available (including publication by pasting on the wall or newspaper publication).

8
http://litigation.findlaw.com/legal-system/how-is-the-court-system-structured.html
14
Subsequent stages
The parties must file supporting documents along with the pleadings (that is, claim, written
statement, counterclaim (if any) and replies). The documents that must be filed are documents on
which the claim is based (for example, deed of lease, bill of exchange, letter of credit and so on).
All other documents relied on in evidence must also be filed.
Parties can also file applications for various purposes (for example, interim relief, production of
documents, service of interrogatories and so on). The second stage in proceedings is the hearing of
these applications.
After the application stage, the matter proceeds to trial, which consists of the following stages:
 Admission/denial of documents.
 Oral evidence by way of affidavit.
 Cross-examination.
 Final hearing.

Summary proceedings are also available in certain cases (for example, where a debt is admitted).

Availability and grounds

In deciding whether to grant interim relief, the court will consider the following factors:
 Whether there is a prima facie case.
 The balance of convenience.
 Whether irreparable injury will be caused if interim relief is not granted.

Additionally, where appropriate, parties must show a danger that property will be destroyed,
damaged or alienated.
In cases relating to injunction against a bank guarantee, other grounds must be made out, including
fraud or irretrievable injustice.

Prior notice/same-day
Without notice interim injunctions are available if the court is convinced that an irretrievable and
irreparable damage will be caused in the case the injunction is not granted. However, there are
judgments ruling that no without notice interim injunction or stay can be ordered with respect to
public and economic projects and schemes.
After an order for an interim injunction is passed, there are stringent provisions regulating the
notice of the injunction to the respondent.
15
Mandatory injunctions
Both mandatory and prohibitory interim injunctions are available in India.

Rights of appeal
Interim orders are appealable under Order XLIII, rule 1 of the Code of Civil Procedure. An appeal
can be made at any stage within the specified period of limitation. However, the appeal courts do
not normally interfere with without notice and interim orders, and will normally hear these appeals
after an interim order is confirmed or rejected, after hearing both sides.9

Final remedies
 Money decree.
 Specific performance.
 Damages.
 Permanent (prohibitory) and mandatory injunctions.
 Various other statutory remedies.

In India, damages are compensatory and punitive damages (in terrorem damages) are prohibited by
law.
Generally, the person claiming damages must prove the loss claimed. However, where contracts
provide for liquidated damages that are genuine pre-estimates of the likely loss, these are awarded
unless the party in breach shows that no loss was actually caused.

4. LITIGATION SYSTEM IN OTHER COUNTRIES

AUSTRALIA
9
http://litigation.findlaw.com/legal-system/how-is-the-court-system-structured.html
16
Australia inherited its legal system from the English common law and that inheritance is still quite
clear today. However, since the Federation of the Australian States merged into one
Commonwealth in 1901, the Commonwealth and state governments have enacted legislation
independently from the British Parliament and the common law of Australia has developed
separately from that of England.
Each state has its own court hierarchy with the Supreme Court of each state being its highest court,
with an unlimited financial jurisdiction. The Federal Court of Australia hears matters of federal law.
The High Court of Australia hears appeals from the state Supreme Courts and the Federal Court
and is responsible for interpreting the Constitution. Rules of evidence and procedure are set partly
by legislation and partly by the courts themselves. The length of the litigation process varies
considerably between courts and depends also on the complexity of the dispute10

CHINA

Modernisation of the legal system of Mainland China (“China”) is catching up to the pace of its
successful economic development. Although it is essentially a civil law system, China is now
making concerted efforts to cope with the huge volume of disputes arising out of the staggering
growth of complex commercial activities and awareness of civil rights as part of the exercise of
developing a “Harmonious
Society” with a view to promoting better societal balance.In a nutshell, the Chinese court system
comprises the Supreme People’s Court, the Higher People’s Courts,
the Intermediate People’s Courts and the District People’s Courts with jurisdictions primarily
dependent on the size of the claims.

INDONESIA

10
https://uk.practicallaw.thomsonreuters.com
17
Indonesia’s legal system is based on civil law. The Indonesian judicial system is comprised of
separate courts of first instance that have the authority to try
civil, criminal, industrial relations, state administrative, tax and constitutional cases. High Courts
are the courts of appeal for decisions made by the District Courts. These courts are under the
supervision of the Supreme Court of the Republic of
Indonesia which is the court of appeal for decisions made by the High Courts. In addition,
Indonesia also has a Constitutional Court, which has the authority
to conduct judicial review of laws enacted by the People’s Representative Assembly as well as to
adjudicate whether or not the President and/or Vice President has violated the law based upon the
application of the House of Representatives. Both the Supreme Court and Constitutional Court are
the highest courts in Indonesia and they are independent of each other. 11

MALAYSIA

The Malaysian legal system is based on common law which is a direct result of the colonisation of
Malaya from the early 19th century to the 1960s. The Constitution of Malaysia is the supreme law
of the land which sets out the legal framework and rights of all Malaysians while federal laws
enacted by the Parliament apply throughout the country. There are also state laws enacted by the
respective State Legislative Assemblies which apply to a particular state. Malaysia’s legal system is
unique as it provides for a dual justice system comprising of secular laws (criminal and civil
litigation) and syariah laws. Syariah laws only apply to Muslims. With regards to civil law, the
Syariah courts only have jurisdiction in personal law matters such as marriage, inheritance
and apostasy. The court process is adversarial. In very recent times, the Malaysian legal system has
made various improvements to its procedures and management of cases. Alternative Dispute
Resolution (“ADR”) have also been greatly encouraged by the courts. These recent developments
in the system aim to improve efficiency, effectiveness and fairness in the administration of justice
in Malaysia.

SINGAPORE

11
http://www.aseanlaw.com.cn/en/law/yd/Indonesia.html
18
As an ex-British colony (becoming self-governing in 1959 and gaining full independence from
Malaysia in 1965) Singapore’s legal system is based very much on the English legal system.
Singapore inherited English common law, characterised by the doctrine of judicial precedent. The
court system has two tiers, consisting of the subordinate courts (the Family, Coroner’s, Juvenile
and Community Courts, together with the Small Claims Tribunal) and the Supreme Court,
consisting of the High Court and the Court of Appeal.
Singapore lawyers are not permitted to charge contingency fees under the Legal Profession Act.
The Singapore Legal Aid Bureau was established under the Legal Aid and Advice Act for the
purpose of providing legal advice and legal services in civil matters for those that qualify. Third
parties are not permitted to fund the cost of litigation on behalf of a claimant.12

So, these above mentioned countries have different styles or way of working. In some countries
approach of litigation system is as same as India while in some other countries it is little bit
difficult from the approach of india.

5.ADVANTANGES OF LITIGATION SYSTEM

12
http://www.lawgazette.com.sg/2001-11/Nov01-focus2.htm
19
Flexibility. Court litigation is largely controlled by statutory and procedural rules. Through
provisions set forth in a construction agreement or upon mutual agreement of the parties once
arbitration has commenced, the parties have the opportunity to establish rules and limits for pre-
hearing exchange of documents or interrogation of witnesses, the manner in which an arbitration
hearing will be conducted and the level of detail to be included in an arbitration award.13

Joinder of Parties. Parties may be compelled to participate in arbitration proceedings only by

agreement. Thus, if any additional parties are necessary for complete relief, those other parties
either must have agreements requiring such participation or otherwise must consent to their joinder
in the proceedings. In contrast, in court proceedings, all persons and entities involved in a dispute
typically can be joined as parties.

Clear procedural and evidential rules: The law of evidence, also known as the rules of evidence,
encompasses the rules and legal principles that govern the proof of facts in a legal proceeding.
These rules determine what evidence must or must not be considered by the trier of fact in reaching
its decision. The trier of fact is a judge in bench trials, or the jury in any cases involving a jury.[1]
The law of evidence is also concerned with the quantum (amount), quality, and type of proof
needed to prevail in litigation.

Formal process for evidence disclosure (witness statements and expert evidence):once a lawsuit
gets underway, parties to the lawsuit or their lawyers start gathering information related to the
lawsuit. This investigative process is aptly named "discovery," because it often turns up facts and
documents that were previously unknown -- to at least one party to the lawsuit anyway.

Parties can employ procedural rules and interim remedies: The term interim order refers to an
order issued by a court during the pendency of the litigation. It is generally issued by the Court to
ensure Status quo. The rationale for such orders to be issued by the Courts is best explained by the
Latin legal maxim "Actus curiae neminem gravabit" which, translated to (English,) stands for "an
act of the court shall prejudice no one". Therefore, to ensure that none of the interests of the parties

13
http://www.tuckerlaw.com/2015/02/13/advantages-disadvantages-arbitration-vs-court-litigation/
20
to the litigation are harmed, the court may issue an interim order.14

Obtain court precedent: In legal systems based on common law, a precedent, or authority, is a
principle or rule established in a previous legal case that is either binding on or persuasive for a
court or other tribunal when deciding subsequent cases with similar issues or facts[citation needed].
Common law legal systems place great value on deciding cases according to consistent principled
rules so that similar facts will yield similar and predictable outcomes, and observance of precedent
is the mechanism by which that goal is attained. The principle by which judges are bound to
precedents is known as stare decisis.

Judicial decision: The judgment of any Court, High Court or Supreme Court is a decision of the
court in that particular case. It would bind the parties on the principle of res judicata but so far as its
binding nature on other courts or other parties is concerned, it has been clearly laid down that what
is binding as a judicial precedent is ‘ratio decidendi’. The expression ‘ratio decidendi’ means the
underlying principle,

Open system of justice (pubic): Open justice is a legal principle describing legal processes
characterized by openness and transparency.[1] The term has particular emphasis in legal systems
based on British law, such as in the United Kingdom, Commonwealth countries such as South
Africa and Canada and Australia, and former British colonies such as the United States. The term
has several closely related meanings: it is seen as a fundamental right guaranteeing liberty;[1][2] it
describes guidelines for how courts can be more transparent;[3] and it sometimes identifies an ideal
situation.[3][4] In a courtroom, it means steps to promote transparency such as letting the public
see and hear trials as they happen in real time,[5] televising trials as they happen, videotaping
proceedings for later viewing,

14
https://quizlet.com/70253497/advantages-and-disadvantages-of-litigation-and-adr-flash-cards/
21
 6. DISADVANTAGE OF LITIGATION SYSTEM

Costly: The inadequacies of legal aid system in India push millions of litigants — majority of
which belongs to the economically weaker section (a fact highlighted in various reports) — to hire
'expensive’ courtroom heroes, making justice impossible for many. litigation is expensive for a
number of reasons, but the primary reason is that litigation is very time consuming and labor-
intensive. For a lawyer to be ready at trial, he must know virtually every aspect or facet of the case,
and be familiar with each and every document associated with the case. Some lawyers estimate that
they must spend at least 10 hours in preparation for every one hour of actual trial time. Sometimes
the cost of expert witnesses greatly increases the litigation expenses. In other cases, the sheer
number of witnesses to be interviewed and/or cross-examined can greatly influence the expense of
the case.

Time consuming: The length of time from starting a lawsuit until actual trial of a lawsuit is
very difficult to generalize, because scheduling issues will depend upon the individual judge,
whether you are in federal court or state court, whether either side will purposely delay, whether
extensive discovery is necessary, and many other factors. In some counties, a trial may take place
within nine months of initial filing. In counties having a large amount of filings, in particular
Hennepin County and Ramsey County, the expected time between initial filing and a trial date
might range anywhere from 12 months through 2 years. The Minnesota court system is generally
making efforts to move cases along as rapidly as possible. If you have a case that you want to move
forward, make sure that your attorney actually files and serves the lawsuit in a timely manner, and
make sure the attorney files the paperwork to request a court date.15

Parties cannot decide outcome and select judge: as this leisure is available in the
process of arbitration but it is not available in the process of litigation system. soundness of any
adjudication is largely dependent upon the quality of the arbitrator or trial judge. In the arbitration
process, the parties select the arbitrator(s). Any pre-hearing disputes between the parties are
decided by the same arbitrator(s) that ultimately decide the case. In contrast, in many courts, no
individual judge is assigned to a case and, therefore, multiple judges may be involved in
adjudicating pre-trial disputes. The judge is assigned by the court without input from the parties.
Thus, arbitration affords the parties the ability to select the decider, whereas court litigation does

15
https://www.lawteacher.net/free-law-essays/contract-law/the-disadvantages-of-litigation-contract-law-essay.php
22
not.

Adversarial: The adversarial system or adversary system is a legal system used in the common
law countries where two advocates represent their parties' case or position before an impartial
person or group of people, usually a jury or judge, who attempt to determine the truth and pass
judgment accordingly. It is in contrast to the inquisitorial system used in some civil law systems
(i.e. those deriving from Roman law or the Napoleonic code) where a judge investigates the case.16

Solution imposed on parties by judge can lead to client dissatisfaction.: the judgements given by
the court in any case may lead to the dissatisfaction of any of the party. In arbitration this is an
advantage that both parties usually satisfied with the decisions comes at last.in litigation system we
have not that luxury. Unexpected decisions may come and parties are bound by it.

Decided on the balance of probabilities: "The balance of probability standard means that a court is
satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event
was more likely than not. When assessing the probabilities the court will have in mind as a factor,
to whatever extent is appropriate in the particular case, that the more serious the allegation the less
likely it is that the event occurred and, hence, the stronger should be the evidence before the court
concludes that the allegation is established on the balance of probability
Having to disclose damaging evidence

16
http://www.metrocorpcounsel.com/articles/7110/experts-compare-advantages-and-disadvantages-litigation-and-
adr
23
 7.CONCLUSIONS AND SUGGESTIONS

The Indian judiciary has a reputation of being independent and non-partisan. Judges are not
appointed on political considerations. They enjoy a high standing in society. Though their salaries
are modest, they are provided colonial style government accommodation and liberal perks. The
influence of the British Judicial System continues in significant aspects. The official language for
Court proceedings in the High Court & the Supreme Court is English. Lawyers don a gown and a
band as part of their uniform and Judges are addressed as "My Lord".

The procedural law of the land as well as most commercial and corporate laws are modeled on
English laws. English case law is often referred to and relied upon both by lawyers and judges. As
in England, a certain class of litigation lawyers are designated as "Senior Advocates" (equivalent to
QCs). They do not deal with clients directly and take instructions only through solicitors. Certain
lawyers however, follow a mixed practice i.e., both plead and act in relation to court matters.

There is a great tradition and emphasis on oral arguments. Counsel are seldom restrained in oral
arguments and complex hearings may well take days of arguments to conclude. Specialisation is
relatively a new phenomenon. Most lawyers have a wide-ranging practice.

Through the research, researcher came to know about the various flaws in the current litigation
system. The litigation process should become more fast so that the justice can be ensured when
required because in many case it happens that decisions come after a long period of time and then
the decision doesn’t matter for the parties.

Another suggestions that researcher would like to give is that the litigation process should be make
cheap. Nowadays, it has become very costly and in consequence, poor people are not able to get
good lawyers and it results in losing of cases which shows defects in our so called equal justice
judicial system.

24
 8. BIBLIOGRAPHY

BOOKS

1.) The litigation parameter: a system approach by James W.H. McCord

2.) Civil procedure and litigation by Jack S. Emery

2.) The International comparative legal guide to: LITIGATION AND

DISPUTE RESOLUUTION by CRAIG POLLACK

WEBSITES

1.) https://uk.practicallaw.thomsonreuters.com

2.) http://www.tuckerlaw.com

3.)http://www.aseanlaw.com.cn/en/law/yd/Indonesia.html

4.)https://uk.practicallaw.thomsonreuters.com

25
26