Special Case

In one line

A special case is a question of fact or law that the parties agree to put to the court for its opinion, having settled in advance what will follow from the answer.

There is no plaintiff suing a defendant in the ordinary sense. There is an agreement, a question, and an agreed consequence.

Why the Code provides for it

Sometimes the parties do not really disagree about the facts at all. Two people may accept exactly what happened and differ only about what the law makes of it. Litigating that in the ordinary way means pleadings, issues, witnesses and a trial, all to reach a point that could have been reached in a morning's argument.

Order XXXVI lets them skip to the argument. They agree the facts in writing, frame the question, and agree what each will do depending on the answer. The court then decides the question and gives effect to their agreement.

It is worth seeing what the parties give up in exchange. Under Rule 4 they become subject to the jurisdiction of the Court and bound by the statements contained in the agreement. They cannot later dispute the facts they themselves set down.

The enabling section

Section 90: where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.

That is the whole section. The manner prescribed is Order XXXVI.

What the agreement must contain: Rule 1

Rule 1(1): parties claiming to be interested in the decision of any question of fact or law may enter into an agreement in writing stating that question in the form of a case for the opinion of the Court, and providing that upon the finding of the Court with respect to that question:

(a) a sum of money, fixed by the parties or to be determined by the Court, shall be paid by one of them to the other; or (b) some property, movable or immovable, specified in the agreement, shall be delivered by one of them to the other; or (c) one or more of the parties shall do, or refrain from doing, some other particular act specified in the agreement.

Rule 1(2): every case so stated shall be divided into consecutively numbered paragraphs, and shall concisely state such facts and specify such documents as may be necessary to enable the Court to decide the question raised.

Two features of Rule 1 deserve emphasis.

The agreement must specify the consequence. It is not enough to ask the court an abstract question. One of the three outcomes in clauses (a), (b) and (c) must be provided for, so that the court's answer actually disposes of something.