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The concept of preliminary objections in Law
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Posted on Fri, Aug 24, 2012 at 10:29 IST (last updated: Fri, Aug 24, 2012 @ 12:15 IST)
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Preliminary objections are generally a form of pleadings by lawyers around the world in common law jurisdictions. While the exact term of usage may vary across different legal jurisdictions, the fundamental principle is the same.
Preliminary objections are points of law or fact raised at the outset of a case or lawsuit by the defence without going into the merits of the case. In other words, preliminary objections take no account of the validity of the claims of the claimant or plaintiff.
Instead preliminary objections may be taken on the basis of the following:
- The jurisdiction of the particular court or tribunal to hear the case is lacking. Jurisdictional objections may be in regard to either territory (the Court chosen by the claimant/plaintiff has no authority to try a case in the place where the cause of action arose) or pecuniary (the Court chosen by the claimant/plaintiff does not have the authority to try the case because the value of the case in monetary terms is higher than the upper limit that can be tried by the Court).
- The suit discloses no cause of action. In other words, there is no underlying basis or dispute for which the suit could have been initiated.
- The suit is time-barred by limitation. For example, many types of civil suits may be barred after a period of three years from the time the dispute or cause of action arose. This limitation is imposed in many legal systems to avoid excessive abuse of the system and to prevent litigants who sleep over their rights from exercising it after considerable lapse of time. However, in some situations, courts may have the power to condone delay for legitimate reasons.
- The relief claimed by the claimant in the suit cannot be granted by the Court, either because it is barred in law or the Court has no jurisdiction to grant the relief claimed or otherwise infructuous.
- The doctrine of Res Sub Judice. In other words, another suit by the same claimant against the same defendant, disclosing the same cause of action, is pending before another court.
It may be noted that preliminary objections are narrow in scope and cannot raise substantive issues raised in the pleadings that may have to be determined by the court after perusal of evidence. The maximum relief that a preliminary objection can seek is a return of the suit (not a dismissal on merits) to the claimant/plaintiff with appropriate directions.
Understanding the nature and scope of preliminary objections is very important for practicing lawyers. Knowing how to raise a properly formulated preliminary objection, and when to raise it, can save a lot of time and costs for clients. On a related note, defending a suit is always easier than prosecuting as there are several ways by which a defendant can break down the claim of the plaintiff or claimant. Preliminary objections are the basic legal weapons that a defendant can utilize without expending too much effort.
In this series
- Why Contempt of Court ought not be diluted or removed
- In favour of retaining criminal defamation laws
- Supreme Court upholds freedom of speech
- The slippery slope of "Justice"
- The concept of preliminary objections in Law
- The Art of being in Two Places at once
- Interpreting Law and its pitfalls
- Drafting legal pleadings - an overview
- The art of drafting contracts
- Two methods of learning in the legal profession
- பாரம்பரிய அறிவும், அறிவுசார் சொத்துரிமைச் சட்டமும்
- வீண் பேச்சால் விபரீதம்
- Law and paperwork go together like bread and butter
- ஒரு வழக்கை நடத்துவதற்கு ஏன் வழக்கறிஞர் தேவை?
- The 3 Ds of the legal profession
- Is occasional swift justice a failure of law?
- Contempt of Court - an overview
- Chemical pollution caused by industries: why they invite heavy sanctions
- Business law - the most boring aspect of law
- Legal ethics: how can a lawyer defend the guilty?
- Criminal jurisprudence and the presumption of innocence
- Is tolerance a legal virtue?
- Road accident cases - how to deal with emergencies
- Blogging in anger and its legal implications
- Common wrong assumptions by amateur internet "lawyers"
- On Legal Opinions
The blog owner has closed further commenting on this entry.
Comment by Hariprasad G V (visitor) on Wed, Jan 29, 2014 @ 16:52 IST #
Comment by Hari (blog owner) on Wed, Jan 29, 2014 @ 19:42 IST #
Comment by Prakash Deval (visitor) on Wed, Apr 13, 2016 @ 16:27 IST #
You can also file quash petition in criminal cases before the High Court raising preliminary grounds. In fact, you can even raise defences such as "the case is a civil dispute to be determined by appropriate civil court" in criminal cases where it is obvious that a false criminal case has been made out when the primary dispute is of civil nature. This is particularly applicable in contractual disputes where an obligation has not been fulfilled by one party but the other party (wrongly) chooses to file criminal case for fraud, breach of trust etc.
Comment by Hari (blog owner) on Wed, Apr 20, 2016 @ 20:40 IST #