Special Case

The case is drafted like a pleading, in numbered paragraphs, stating the facts concisely and specifying the documents. That is the same discipline Order VI Rule 2 imposes generally. See [Pleadings].

Rule 2: where the agreement is for the delivery of property, or for the doing or refraining from doing any particular act, the estimated value of the property, or of that to which the act has reference, shall be stated in the agreement. That figure is what fixes the court's pecuniary jurisdiction under the next rule.

How it is filed and treated: Rules 3 and 4

Rule 3(1): the agreement, if framed in accordance with the preceding rules, may be filed with an application in the Court which would have jurisdiction to entertain a suit the amount or value of whose subject matter is the same as that of the agreement.

Rule 3(2): the application when so filed shall be numbered and registered as a suit between one or more of the parties claiming to be interested as plaintiff or plaintiffs, and the other or others as defendant or defendants; and notice shall be given to all the parties to the agreement other than those by whom the application was presented.

Rule 4: where the agreement has been filed, the parties to it shall be subject to the jurisdiction of the Court and shall be bound by the statements contained in it.

So the proceeding is converted into a suit for procedural purposes, with parties allotted to each side, but the contest is confined to the stated question and the parties are held to their own recital of the facts.

Hearing and disposal: Rules 5 and 6

Rule 5(1): the case shall be set down for hearing as a suit instituted in the ordinary manner, and the provisions of the Code apply so far as applicable.

Rule 5(2): where the Court is satisfied, after examination of the parties or after taking such evidence as it thinks fit, that the agreement was duly executed by them, that they have a substantial question of law or fact to be decided, and that the case is fit for decision, it proceeds to decide it. Where it is not so satisfied, it may refuse to proceed.

Rule 6: where the Court is not satisfied on those matters, it shall order the agreement to be filed and proceed to pronounce judgment thereon, or make such other order as the justice of the case requires, according to the terms of the rule.

The safeguard in Rule 5(2) is the important one for an answer. The court does not simply accept the parties' framing. It satisfies itself that the agreement was duly executed and that there is a substantial question to decide, which prevents the procedure being used to obtain an advisory opinion or a collusive judgment.

A worked example

Two neighbouring firms, Chirag Traders and Dhruv Enterprises, are agreed about everything that happened under a supply contract. They differ only on whether a particular clause entitles Dhruv to a rebate.

Can they use Order XXXVI? Yes. They are persons claiming to be interested in the decision of a question of law, and section 90 with Order XXXVI Rule 1 allows them to state it as a case for the opinion of the Court.

What must the agreement contain? The question, stated in the form of a case, in numbered paragraphs, concisely setting out the facts and specifying the documents. And it must provide the consequence: for instance that on the Court's finding, a sum fixed by the parties or determined by the Court shall be paid by one to the other, under Rule 1(1)(a).

Suppose the agreed consequence is delivery of goods rather than payment. Rule 2: the agreement must state the estimated value of the property to be delivered, which then fixes which court can take it.

Where is it filed? Under Rule 3(1), in the Court which would have jurisdiction to entertain a suit of that value. It is then numbered and registered as a suit, with the parties allotted as plaintiffs and defendants, and notice to every party to the agreement other than those who applied.

Can they later dispute the facts they stated? No. Rule 4 makes them subject to the jurisdiction of the Court and bound by the statements in the agreement.

Is the Court obliged to answer? Not automatically. Under Rule 5(2) it must be satisfied that the agreement was duly executed, that there is a substantial question of law or fact, and that the case is fit for decision. If it is not satisfied, it need not proceed as the parties intended.

What it does not mean

A special case is not a contested suit. The facts are agreed; only the stated question is decided.

It is not an advisory opinion. Rule 1 requires the agreement to specify what follows from the answer, and Rule 5(2) requires a substantial question and a duly executed agreement.

The parties are not free to resile from the facts. Rule 4 binds them to the statements in the agreement.

It is not filed anywhere the parties choose. Rule 3(1) requires the Court that would have jurisdiction over a suit of that value, which is why Rule 2 requires the value to be stated.

Quick revision

Section 90: where persons agree in writing to state a case for the opinion of the Court, the Court shall try and determine it in the manner prescribed, which is Order XXXVI.

Rule 1: an agreement in writing, stating a question of fact or law, providing that on the Court's finding either (a) a sum of money be paid, (b) specified property be delivered, or (c) a party do or refrain from doing a specified act. The case is in numbered paragraphs, stating the facts concisely and specifying the documents.

Rule 2: where the consequence is delivery of property or an act, the estimated value must be stated.

Rule 3: filed with an application in the Court that would have jurisdiction over a suit of that value, then numbered and registered as a suit, with notice to all other parties to the agreement.

Rule 4: the parties are subject to the jurisdiction of the Court and bound by the statements in the agreement.

Rule 5: heard as an ordinary suit; the Court must be satisfied that the agreement was duly executed, that there is a substantial question, and that the case is fit for decision.

Test yourself

1. What is a special case? A question of fact or law which parties interested in its decision agree in writing to state, in the form of a case, for the opinion of the Court, providing that upon the Court's finding a sum of money shall be paid, or specified property delivered, or some particular act done or refrained from: section 90 and Order XXXVI Rule 1.

2. What must the agreement provide for besides the question? The consequence of the answer, being one of the three matters in Rule 1(1): payment of a sum fixed by the parties or to be determined by the Court, delivery of specified movable or immovable property, or the doing or refraining from doing of a specified act.

3. In which court is it filed? Under Order XXXVI Rule 3(1), in the Court which would have jurisdiction to entertain a suit the amount or value of whose subject matter is the same as that of the agreement, which is why Rule 2 requires the estimated value to be stated where the agreement is for delivery of property or for an act.

4. What is the effect of filing the agreement? It is numbered and registered as a suit, with one or more parties as plaintiffs and the others as defendants, notice being given to all parties to the agreement other than those who applied; and under Rule 4 the parties become subject to the jurisdiction of the Court and are bound by the statements contained in the agreement.

5. Must the Court decide the question the parties have framed? Not automatically. Under Rule 5(2) it must first satisfy itself, after examining the parties or taking such evidence as it thinks fit, that the agreement was duly executed by them, that they have a substantial question of law or fact to be decided, and that the case is fit for decision.