Things to keep in mind before initiating a litigation

Initiating a litigation may be made easy if the plaintiff is sensitised before filing a lawsuit headlong. Here are some points that the clients must keep in mind before initiating a litigation in order to make an informed decision and purse the best course of action. Stage one states the things that must be kept in mind while evaluating whether initiation a litigation is the right option and stage two states the things that must be kept in mind while initiating the litigation.

Stage one

  1. Litigation is an expensive and time taking affair. One must analyse whether they are willing to and can afford to invest the required time and effort.
  2. If the answer is in affirmative, next step is to conduct cost-benefit analysis. Compare cost of litigation with the benefit it will yield and further analyse the chances of winning.
  3. Explore alternative cost-effective and efficient methods of dispute resolution.
  4. Matters that come for litigation generally become public. In case the parties need to keep things private, they must opt for alternative form of dispute settlement.

Stage two

The important things to keep in mind depend on specific facts and circumstance of each case. But broadly the key things to be considered by the party planning to initiate a claim is the jurisdiction of the court of law, the nature of the relief that party seeks and the limitation period pertaining to the claim. The plaintiff must also be aware about the forms of interim relief available.

What is Jurisdiction?

It means the power of a court to make legal decisions and judgements. The suit may be filed in multiple courts except in the cases where parties have a contract for exclusive jurisdiction, in which case only the court that has been conferred with the jurisdiction in the contract can exercise the jurisdiction.

Bases on which jurisdiction may be established:

(i) Value of the subject matter (pecuniary jurisdiction)

(ii) Location of the defendant (territorial jurisdiction)

(iii) Place where the cause of action arose (territorial jurisdiction)

What is Cause of action?

It refers to a chain of facts that sufficiently justify plaintiff’s right to sue the defendant in a court of law and obtain a remedy for the wrong that has been done to him. One must analyse the sufficiency of the facts and evidence available, before initiating a suit. A weak cause of action could lead to wasted effort towards litigation.

What is Relief?

It means the amount of money or any other right or property that is awarded to a party in a lawsuit. The nature of relief depends on the jurisdiction of the court and the case meted out by the parties.

What is interim relief?

It ensures that the defendant does not fraudulently dispose or create third-party rights on the assets.

Some forms of interim relief:

  1. Attachment of property
  2. Detention of property
  3. Interim sale
  4. Deposit of the claim amount with the court
  5. Appointment of receivers for the property
  6. Deposit of security in the form of immovable property
  7. Bank guarantee equivalent to the claim amount

What is Limitation period?

It means the period of limitation prescribed for any suit, appeal or application by the Schedule and is defined under Section 2(j) of The Limitation Act, 1963. It is the time mandated by the statute to initiate litigation and seek relief for a cause of action.

Other statutory requirements

Plaintiff must comply with the requirements mentioned under the Court fees Act, 1870 and must Disclose relevant documents with court filings.

Hence, one must keep in mind that litigation is an expensive and time-consuming affair. One must fully analyse the chances of their cause of action being accepted by the court and only then proceed with moving ahead with their matter. A badly managed litigation can cause more problems than an unresolved issue.

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.

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