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Report No. 58

Questions of fact

5.32. It would appear that as to the question how far, in a writ petition, the High Courts goes into questions of fact which involve the recording of evidence, a simple answer cannot be given. The following analysis of the representative judicial decisions will, to some extent, illustrate the various aspects of the question.

(a) There are decisions which hold that the Court will not ordinarily decide disputed questions of fact,1 in proceedings for writs.

There are, in particular, decisions holding that the court will not decide disputed questions of fact if they require a protracted inquiry,2 or except in exceptional cases.3

(b) But it is also established4 that the High Court is not, as a matter of jurisdiction, precluded from deciding such questions.

For example, the High Court would determine the facts if the jurisdiction of an administrative tribunal itself depends on findings of facts.5

(c) When it becomes necessary to decide questions of facts in a writ petition, the High Court would normally take recourse to affidavits, and it is a matter within its discretion whether to allow cross-examination or not of a person who has sworn to an affidavit.6

Usually, the High Court, in the exercise of its discretion, declines to do so.7

1. (a) Rajiv Singh v. State, AIR 1967 Pat 163 (166), para. 16 (Question about nature of particular land);

(b) Indian Chemical & Pharmaceutical Works v. State of Andhra Pradesh, AIR 1964 AP 430 (433), para 10 (Question whether chloral hydrate is a "narcotic);

(c) Abdul Barik v. Union of India, AIR 1964 Cal 324 (326-327), para 10, (P.B. Mukerji J.);

(d) Jagir Singh v. State of Punjab, AIR 1964 Punj 98 (99), para. 13 (Dispute as to accuracy of Rent revenue records, distinguishing Karishan Khanna v. State of Punjab, AIR 1962 Punj 32 (36).

2. See, for example, Union of India v. T.R. Varma, AIR 1957 SC 882 (885), para. 6 (Dismissal of employee).

3. See for example, Mohammad Ibrahim v. Assansol Iron & Steel Workers' Union, AIR 1955 Cal 189 (191-192) (para. 10 and para. 18) (D.N. Sinha J).

4. (a) Moti Dass v. S.P. Sahi, AIR 1950 SC 942 (951), para. 17 (Question whether properties here trust properties.)

(b) Union of India v. Chaus Mohd., AIR 1961 SC 1526 (1527), (whether respondent foreign citizen.

(c) Pioneer Traders v. Chief Controller, Exports and Import, AIR 1963 SC 569 (574), para. 12.

(d) Express Newspapers v. Worker, AIR 1963 SC 569 (574), para. 12.

(e) S.T.O. v. Shiv Rattan, AIR 1966 SC 142 (144) (facts to be decided related to taxability).

(f) State of Orissa v. Binapani Dei, AIR 1967 SC 1269.

5. State of Madhya Pradesh v. D.K. Jadav, AIR 1968 SC 1186 (1190), para. 7, quoting Rex v. Shored itch Assessment Committee, (1910) 2 KB 859 (873).

6. Barium Chemical Ltd. v. Company Law B.a.ard, AIR 1967 SC 295.

7. (a) Dabur Ltd. v. Workmen, AIR 1968 SC 17 (19), para. 4.

(b) Sri Triumala Venkateswara v. C.T.O. Rajah Mandi, AIR 1968 SC 784 (786), para. 5.

Structure and Jurisdiction of the Higher Judiciary Back

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