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Report No. 58

Broad propositions

5.43. In the course of our oral discussions at a few places with the Judges and the bar, we put the query whether the following propositions substantially reflect the present practice, and we understand that they broadly reflect the present practice.

Where in a petition for a writ or order under Article 226, a question of fact arises,-

(a) where the question of fact is frivolous and appears to have been raised only to oust the jurisdiction of the High Court tries it;

(b) where the question of fact is genuine but cannot, by reason of any provision of law, be tried in a proceeding other than such petition, the High Court tries it;

(c) where the question of fact is genuine, and can be more appropriately tried in a proceeding other than a petition under Article 226, the High Court declines to try it, except where the question can be decided on admitted documents and can, in the opinion of the High Court, be satisfactorily disposed of in such a petition;

(d) if the High Court decides to try a question of fact in any such petition, it gives an opportunity to the parties to cross- examine the opposite parties and persons who have made affidavits supporting their case with reference to the statements made in their affidavits.

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