By
Sareesh Lohid
1st Semester, III Year Unitary LL.B 2025
Government Law College, Kozhikode
Date of publishing: 21-Nov-2025
Version 2: Updated on 28-Nov-2025
Version 3: Updated on-7 Dec-2025
Version 4: Updated on 01-Feb-2026
Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from sareeshllb.blogspot.com or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.This blog post is a combined collection of information referencing various books and open sources.
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Unit I
=================================================================1.1 Law
1.2 Definition
1.3 Relevance of Law
1.4 Significance of Language in learning law
1.5 Nature of disputes
1.6 Classification/Kind of Law
1.7 Hierarchy of courts (civil & criminal)
1.8 Jurisdiction
1.9 Tribunals
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1.1 WHAT IS LAW?
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behaviour.
1.2 DEFINITION OF LAW:
Positivists definition/Law in terms of command of the sovereign:
John Austin’s definition of law”-Law is the general command of a sovereign to his subjects obliging them to a course of conduct.
Idealistic Definition/ Law in terms of administration of justice.
John Salmond definition of Law: Law is the body of principles recognised and applied by the state in the administration of justice.
Thomas Erskine Holland (T.E Holland) -Law is a general rule of external human action enforced by a sovereign political authority.
Jeremy Bentham: Law is the will or command of the legislature.
Leslie Green: The Law is a system of rights and obligations which the state enforces.
Roscoe Pound: Law is social engineering which means a balance between competing interests in the society.
1.3 RELEVANCE OF LAW
Law is important in society because it provides a framework for behaviour that helps people cooperate and survive. Law is relevant in many ways, including:
• Social change: Law can be an instrument of social change by influencing society and social relationships.
• Rule of law: The rule of law is the foundation for communities of justice, opportunity, and peace. Research shows that countries with a strong rule of law have higher economic growth, greater peace, and better education and health outcomes.
• Protection from damage: Law protects citizens from damage.
• Equal opportunities: Law helps ensure equal opportunities.
• Morals and ethics: Law helps build a society based on high standards of morals and ethics.
• Intellectual property: Law protects intellectual property through trademark and copyright protection.
• Dispute resolution: Law helps manage disputes and disagreements.
1.4 SIGNIFICANCE OF LANGUAGE IN LEARNING LAW:
Legal language is the language of law, lawyers and courts. Necessity of legal language arises in many circumstances which includes the following:
1. Oral representations, submissions and arguments before the courts.
2. Consultation among the judges.
3. Communication between the judge and advocates.
4. Communication among lawyers.
5. Consultation among lawyers, clients and witnesses.
6. Interpretation of statutes.
7. Drafting and pleading of procedures such as plaints, original petitions, written statements etc.
8. Drafting of legal documents of conveyancing in order to confer, create, define, extend, extinguish ,restrict ,release or transfer property or other rights such as deeds of agreement, exchange, gifts, guarantee, hire purchase, indemnity, lease, licence, mortgage, notice, partition, partnership, power of attorney, promissory note, receipt, release , reconveyance, sale, settlement, trust, will etc.
9. Editing and writing textbooks, articles, reports, commentaries, digests etc on subject of law.
10. Legislative drafting of statutes, ordinances, rules, regulations, orders, notifications, circulars, bye laws etc.
11. Lecturers on law and law teaching.
12. Communication between teachers and students on subjects of law.
1.5 NATURE OF DISPUTES
A dispute is a disagreement, argument, or controversy that can lead to a legal proceeding. The nature of a dispute can be described in terms of the factual situation and its consequences. For example, a dispute can be caused by the use of force, a breach of agreement, or the application of a treaty.
Disputes can be civil or criminal in nature:
• Civil disputes
These disputes are between two individuals and can involve financial issues, housing, defamation, family law, or employment law.
• Criminal disputes
These disputes involve criminal activity and concern the public as a whole. Criminal offenses can be summary or indictable. Summary offenses are less serious and are usually dealt with by a magistrate. Indictable offenses are more serious and are usually dealt with by a judge and jury.
Disputes can be settled through a variety of means, including:
• Alternative dispute resolution (ADR): A generic term that refers to a wide range of practices, including negotiation, mediation, conciliation, judicial settlement, and min-trials. In ADR, a neutral third person is selected by the parties to help settle the dispute.
• Courts: Courts provide a means to settle legal disputes.
1.6 CLASSIFICATION/KIND OF LAW
Law in its widest sense
Law in its most general and comprehensive sense, signifies a rule of actions, and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational, or irrational -Blackstone
Laws may be classified as follows.
1. Physical laws.
2. Technical laws.
3. Customary laws.
4. Conventional laws.
5. International laws.
6. Imperative law.
7. Natural law.
8. Civil law.
Law in terms of command of sovereign
Law is the general command of a sovereign to his subjects obliging them to a course of conduct-John Austin
Law in this sense is classified as Imperative Law
Law in terms of administration of justice.
Law is the body of principles recognised and applied by the state in the administration of justice-Salmond
These are classified as
A. General Law
B. Special Law
General Law has three divisions:
1. Statute law
2. Equity law
3. Common law
Special law – Under special conditions and circumstances.
Following are the classification of special laws.
1. Local law
2. Foreign law.
3. Conventional law.
4. Autonomic law.
5. Martial law.
6. International Law.
Other class of law.
1. Public law
2. Private law
3. Substantive law.
4. Procedural law.
5. Civil law
6. Criminal law.
7. Personal law.
8. Environmental law.
9. Intellectual property law.
10. Cyber law.
1.7 HIERARCHY OF COURTS (CIVIL AND CRIMINAL)
Courts are the institutions or tribunals through which state administers public justice to its citizens. Courts are established by the law and constituted by the government.
Courts are different classes with distinct powers or jurisdiction.
Jurisdiction means the extend of power of a court to entertain legal proceedings, jurisdiction is of different kinds namely, Civil, Criminal, Original, appellate, Local or territorial, Pecuniary , As regards Subject-matter.
1.7.1 CIVIL COURTS:
Classes of subordinate civil court ands and their pecuniary jurisdiction.
In order to administer civil justice the following courts are established:
Supreme court of India
The High Court
The District Courts
The Subordinate judges courts (Sub and Court)
The Munciffs Courts.
1.7.2 SUPREME COURT OF INDIA
The apex court of India, with the power to hear appeals against High Court decisions and make binding judgments
The Supreme Court is made up of one Chief Justice and other judges. The President of India appoints the judges, and the Chief Justice is appointed after consulting with other judges.
Article 124 of the constitution of India provides for the establishment of the supreme court.
Article 32 of the constitution of India provides for the writ jurisdiction of the supreme court. It guarantees the right to move the supreme court by appropriate proceedings for the enforcement of the fundamental rights conferred by part III of the constitution.
It has the following functions:
• Final interpreter of the Constitution: The Supreme Court is the final authority on the interpretation of the Constitution.
• Court of appeal: The Supreme Court hears appeals against judgments from lower courts. These appeals can be in constitutional, civil, criminal, or special leave matters.
• Original jurisdiction: The Supreme Court has original jurisdiction in certain cases, such as disputes between the government and states, or between states. The Supreme Court also has original jurisdiction to enforce fundamental rights.
• Advisory jurisdiction: The President of India can seek the Supreme Court's opinion on matters of public importance. The Supreme Court's opinion is advisory and not binding on the President.
• Court of record: The Supreme Court keeps records of all its proceedings.
• Binding decisions: The Supreme Court's decisions are binding on all lower courts in India.
1.7.3 HIGH COURT
Article 214 of the constitution provides for the establishment of a hight court in every state. The high court is the head of judiciary in the state. The high court can entertain the appeals from the judgement of subordinate civil courts.
Every Hight court shall have power, throughout the territories in relation to which it exercises jurisdiction issue to any person or authority including appropriate cases , any government,within those territories,directions, orders or writs in the nature of habeas corpus, Mandamus, Prohibition, Quo Warranto and certiorari or any of them for the enforcement of fundamental rights conferred by part III of the constitution for any other purpose.
Here are some more details about high courts in India:
• Powers- High courts have the power to hear appeals in civil and criminal cases, and to exercise original jurisdiction in certain matters.
• Organization -The Indian Constitution, Articles 214 to 231, covers the organization and powers of high courts.
• Appointment-The President of India appoints the Chief Justice and other judges of the High Court.
• Number of high courts-There are currently 25 high courts in India. Some states share a high court, such as Haryana, Punjab, and Chandigarh, and Tamil Nadu and Puducherry.
• History-The first high court was established in Calcutta in 1862.
• Sittings-High courts operate during four traditional periods of the year, known as sittings.
1.7.4 THE DISTRICT COURTS:
District courts are established in every district as per the provision in Kerala Civil Courts Act 1957 for trying civil suits and to hear appeals from subordinate civil courts.
The district court have unlimited pecuniary jurisdiction and so they can try any civil suit.
They can hear appeals from the judgement of Munciffs courts and subordinate judges court up to the value of Rs two lakhs. If the value of the suit exceeds two lakh rupees, the appeal is to be preferred to the High Court.
1.7.5 SUBORDINATE JUDGES COURTS (SUB-COURT)
In the state of Kerala, the subordinate judges courts are established as per the provisions of the Kerala civil courts act 1957 for trying civil suits. The subordinate judges have unlimited pecuniary jurisdiction and hence they can hear and decide a suite irrespective of its value.
1.7.6 THE MUNSIFFS COURTS
In the state of Kerala, the Munciffs courts are established as per the provisions of the Kerala civil courts act 1957 for trying civil suits. A Munciffs court is competent to try a suit if the amount or value of the subject matter does not exceed ten lakhs rupees. Thus if a person wants to institute a suit for recovery of ten lakhs or lesser amount , he can institute a suite in the Munciffs court.
1.7.7 CRIMINAL COURTS
Criminal courts are for deciding the criminal cases and their powers are provided in Section 21 to 29 of Bhartiya Nagarik Suraksha Sanhita (BNSS)
Other sections of the BNSS that relate to criminal courts include:
• Section 6: Establishes the classes of criminal courts in each state, including Courts of Session, Judicial Magistrates of the first and second class, and Executive Magistrates
• Section 8: Provides for imposing imprisonment in default of community service
• Section 48: Makes abetment an offense if it occurs outside of India but in relation to an offense that would be considered criminal in India
Courts
• Supreme Court
• High Courts
• Session Judge and Additional Session Judge
• Assistant Session Judge
• Chief Judicial Magistrate (CJM)
• Additional Chief Judicial Magistrate (ACJM)
• Sub Divisional Judicial Magistrate (SDJM)
• Judicial Magistrate of the First Class
• Judicial Magistrate of the Second Class
• Metropolitan Magistrate- The court of a chief metropolitan Magistrate shall have the power of the court of a Chief Judicial magistrate and that of a Metropolitan Magistrate, the powers of the court of a Magistrate of the first class.
1.8 JURISDICTION
Jurisdiction is the authority given to a legal body like a court to administer justice within a defined field of responsibility.
Jurisdiction means the extent of the power of the court. To entertain a case the court needs power. Only the courts which have the power to hear the matter can only entertain the case. Otherwise, that suit will not stand before the court. Any suit, case or appeal or any application given in the technical sense before the court of law shall be maintained only according to the jurisdiction.
The authority of a court to administer justice, not only with reference to the subject matter of the suit but also to the local and the pecuniary limitation of its jurisdiction
Different systems of court based on Jurisdiction
Indian courts are called the bouquet of the SC and all other benches of courts have to
follow the decision of the SC.
● Jurisdiction based on subject matter
● Jurisdiction based on territory
● Jurisdiction which is pecuniary
1.Jurisdiction based on subject matter
Subject matter means the subject which is in question, the court has the authority to hear the type of case or controversy initiated in the court. First of all the court goes through the subject matter which is to be discussed in the case. It can be a civil or criminal matter. Based on this the court will decide the subject matter of the case.Sometimes the court will be hearing small matters or causes, for example, the munsiff court will hear the case of account of loan etc and the court will decide the case on the basis of its jurisdiction or the subject matter specified.
2. Jurisdiction based on Territory
This is the type of jurisdiction that many people think of when they think of jurisdiction. It involves the geographic boundaries a court can act over. The court in which the matter should be heard will be decided on the basis of the territory of the case. The court has its own limitations to hear the matter if it is beyond its territory.
3. Pecuniary Jurisdiction
Pecuniary means money matters. It is based upon the amount claimed in the suit. A large number of civil cases are classified on the basis of pecuniary jurisdiction. That is the case is heard according to the amount or value claimed through the case. The court has unlimited pecuniary jurisdiction only in certain cases. The HC and SC can hear any case of pecuniary jurisdiction, while the district courts and other courts have pecuniary jurisdiction and judges will decide the case only based on its pecuniary jurisdiction.
Jurisdiction of the Supreme Court
The Supreme Court in India has three types of jurisdictions – original, appellate and advisory as provided in Articles 131, 133 – 136 and 143 respectively of the Indian Constitution.
Original Jurisdiction of the SC in India
Original jurisdiction of a court refers to a matter for which the particular court is approached first. In the case of the Supreme Court in India, its original jurisdiction is covered under Article 131. It involves the following cases:
● Any dispute between the Indian Government and one or more States.
● Any dispute between the Indian Government and one or more States on one side and one or more States on the other side.
● Any dispute between two or more States.
● Article 32 of the Constitution provides original jurisdiction to the SC for matters regarding the enforcement of Fundamental Rights.
● The SC can issue writs, directions, or orders including writs in the nature of mandamus, habeas corpus, quo warranto, prohibition and certiorari.
● The SC also has the power to direct the transfer of a criminal or civil case from the High Court in one State to the High Court in another State.
● It can also transfer cases from one subordinate court to another State High Court
● If the SC deems that cases involving the same questions of law are pending before it and one or more High Courts, and that these are significant questions of law, it can withdraw the cases before the High Court or Courts and dispose off all these cases itself.
The Arbitration and Conciliation Act, 1996 gives SC the authority to initiate international commercial arbitration.
Appellate Jurisdiction
Under this, the Supreme Court can hear cases only when they are appealed against a High Court order.
Advisory Jurisdiction
Under this, the President can request the Supreme Court to offer its opinion on any issue of law or fact.
Review Jurisdiction
This is covered under Article 137 and it gives SC the authority to review its judgements. There are two grounds on which a review is permitted. They are as follows:
● If there has been an apparent error on the face of record leading to the perversity of judgment, or
● If new evidence has been uncovered which was not available earlier despite the best attempt by the party or out of no fault of the party.
Writ Jurisdiction
A writ is an order by a court, directing lower courts to either do something or not do something. The concept of a writ was first developed by the Anglo-Saxons in England. The Monarch would issue letters which held orders and directions. Since then, writs have been incorporated by various countries into their legal systems. India has also done so, empowering the Supreme Court and the High Courts to issue such writs.
Article 32 in the Indian Constitution deals with constitutional remedies that an Indian citizen can seek from the Supreme Court of India and High Court against the violation of his/her fundamental rights. The same article gives the Supreme Court power to issue writs for the enforcement of rights whereas the High Court has the same power under Article 226.
Types of Writs
There are five types of writs which can be issued by the High Courts, but Article 226 has also given the power to issue other writs if they are of like nature to the five types of writs expressly spelled out in the Constitution. The types of writs are as follows:
● Habeas Corpus
Habeas corpus is a Latin term which translates to “you have the body.” This type of writ is used in cases of illegal detainment and imprisonment. This writ allows the court to direct the detainer to appear before the court and give a valid reason for the imprisonment or detention. They must provide proof that it is legal, thus the onus of proof is on the detainer, and he must show proof of authority to do the same. If the court finds that the person has been illegally detained, it can order the detainee or prisoner to be set free.
Scope and Grounds
The court has greatly expanded the scope of this writ as it protects the right to life and liberty. In the case of Sheela Bharse v. State of Maharashtra AIR 1983 SC 378, the court expanded the scope of this writ by adjudging that it is not necessary that the detainee should be the petitioner. An interested party who has some connection with the case may also do so.
In the case of Kanu Sanyal v. District Magistrate AIR 1973, SC 2684 the court held that it is not necessary to produce before the court the detainee.
● Prohibition
The writ of prohibition is issued by the High Court to judicial and quasi-judicial bodies, refraining the said bodies from continuing with any proceeding which is in excess of their jurisdictions. The writ of prohibition can be issued only when the case is continuing.
Scope and Grounds
In the case of Calcutta Discount Co. Ltd. v. ITO AIR 1961 SC372, the Supreme Court held that when a subordinate court or tribunal is shown decisively that they have acted in excess of their jurisdiction, the court will issue a writ of prohibition regardless of whether there exists an alternative remedy or not.
● Mandamus
Mandamus is a Latin term meaning “to command,” and it is a writ which is issued to any person or authority who has been prescribed a duty by the law. Mandamus cannot be issued to a private person or company with private obligations. It also cannot be issued to enforce a private contract. This writ compels the authority to do this duty.Mandamus does not create a new duty instead it compels the performance of an already existing duty.
Scope and Grounds
Like the other prerogative writs, the court has taken on the burden of setting the parameters for the application of the writ of Mandamus.
In the case of, State of West Bengal v. Nuruddin(1998) 8 SCC 143, the Supreme Court held the writ of mandamus is a personal action where the respondent has not done the duty they were prescribed to do by law. The performance of the duty is the right of the applicant.
In Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V. R. R Udani and Ors. AIR 1989 SC 1607, the court held that it is not necessary that the duty is imposed by statute, mandamus may apply even in cases where the duty is imposed by common law or custom. The ambit of mandamus is very wide, and it must be available when an injustice has occurred. It should not be bogged down with too many technicalities.
● Quo Warranto
Quo warranto is the Medieval Latin term for “by what warrant” and it is the writ which is issued directing subordinate authorities to show under what authority they are holding the office. The writ cannot be issued to a person working in a private field. This writ is issued to a person in an office, the legality of which is being questioned.
Scope and Grounds
In the case of Anand Bihari v. Ram Sahay AIR 1952 MB 31, the court held that the office in question must necessarily be one which is public.
In G. Venkateshwara Rao v. Government of Andhra Pradesh AIR 1966, SC 828, the court held that a private person may file an application for a writ of Quo Warranto. It is not required that this person is personally affected or interested in the case.
● Certiorari
Certiorari means “to certify,” and it is a writ which is issued by the High Court to subordinate judicial or quasi-judicial bodies directing them to transfer the records of a particular case in order to ascertain whether the court has the jurisdiction to give the order or whether it is against the principles of natural justice. A writ of certiorari is corrective in nature.
Scope and Grounds
The scope of the writ of certiorari has been given in the case of Hari Vishnu Kamath v. Ahmad Ishaque AIR 1955 SC 233 as follows:
● When there is an error of jurisdiction.
● When the court has not given the proper time for both parties to be heard or has violated principles of natural justice.
● This writ is supervisory in nature, and thus the High court cannot review the findings of the lower courts.
● If the error is evident.
Difference between Writ Jurisdiction of the High Court and the Supreme Court
The Constitution of India has given the power to issue writs to the Supreme Court in Article 32. This power is wider in case of High Courts as the Supreme Court has restricted powers when it comes to issuing writs.
The difference is given below:
● The Supreme Court can issue writs only in case there is a violation of Fundamental Rights.
The High Court has a wider scope to exercise this power. They can issue writs not only when there is a violation of Fundamental Rights but also in other cases.
Name of Jurisdiction.
Nature and Purpose
Civil For deciding civil cases
Criminal For deciding criminal cases
Original Original Jurisdiction arises from the original cause of action leading to an original Suit or Original petition in the court of the first instance.
Appellate This is the jurisdiction to hear the appeals. Appeals are filed before the court of superior jurisdiction.
Local or territorial This is the jurisdiction over a specified area.
Pecuniary This is the jurisdiction according to the amount of valuation of the subject matter and reliefs claimed in the suit.
As regards Subject-matter This is the jurisdiction according to the subject matter and reliefs.
Eg Divorce -Family Courts
Writs: High Court and Supreme Court
Reference
Revision
Advisory
Writ Jurisdiction
Case Law:
Bilkis Yakub Rasool V Union of India 2024 1 SCR 743
- In this case the respondents were convicted by a special court, Mumbai and consequently the Maharashtra Government was the approporiate government.
- But Gujarat Governemnt passed the orders of remission based on State of Gujarat "policy on remission", and after getting opinion of the Session Judge at Dahod , Gujarat
- It was held that Gujarat Government was not the appropriate authority.
1.9 TRIBUNALS
There are civil courts to decide disputes which are of civil nature. The criminal courts are establishes to decide criminal cases.
These courts are bound to follow the procedures prescribed in the procedural laws such as code of civil procedure, code of criminal procedure, the Limitation Act, the Evidence Act and so on. The procedures of these courts are time consuming and expensive. Further, the number of cases pending adjudication before these courts are more than what these courts can accommodate. They are overburdened. This also constitutes another cause for delay. The Indian Legal system is slow , costly, complex and formalistic. The delay in deciding disputes, in fact, results in denial of justice.
As the ordinary judicial system proved inadequate to decide and settle all types of disputes, special courts and tribunals were established. They are possessed of the techniques and expertise to handle complex problems. The tribunals are not bound to follow the procedural laws which the ordinary courts are bound to follow. They can render justice in a speedy manner. Though they are not bound to follow the procedural laws, they have to follow the “Principles of natural justice”.
Following are some of the special courts , tribunals and forums.
1. Family Court
Established as per the provisions of family court act 1984-Divorce, Maintenance, Restitution, custody of children etc…
2. Motor Accident Claims Tribunal (MACT)-
For claims for compensation arising from motor accidents.
3. Consumer Dispute redressal forum (District Forum )
Consumer Dispute redressal commission (state commission)
National Consumer Dispute redressal commission (National commission)
4. Labour Court and Industrial Tribunal
Industrial tribunals are established as per provisions of section 7A of Industrial dispute act 1947. The industrial tribunal are competent to adjudicate the following matters:
1. Industrial disputes relating to wages.
2. Disputes relating to compensatory and other allowances.
3. Disputes relating to hours of work and rest intervals.
4. Disputes relating to leave with wages and holidays.
5. Disputes relating to bonus, profit sharing and gratuity.
6. Disputes relating to shift working.
7. Disputes relating to classifications by grades.
8. Disputes relating to rules of discipline.
9. Disputes relating to rationalisation.
10. Disputes relating to retrenchment of workmen and closure of establishments.
5. The Central Administrative Tribunal and the state administrative tribunal.
Administrative tribunal Act 1985 provides for establishment of central administrative tribunal and state administrative tribunals. The main object of establishing administrative tribunal is to decide disputes between the government employee and their master, the government.
A Bench of Central administrative tribunal (CAT) is functioning in Kochi,Kerala and its function is to adjudicate disputes between Central Govt and its employees.
In Kerala, State administrative tribunal is known as Kerala Administrative Tribunal and its function is to adjudicate disputes between Government of Kerala and its employees.
6. Income Tax Appellate tribunal
It is established as per the provision of Income Tax Act 1961 to decide the disputes between the income tax department and assesses (person liable to pay Income Tax).
1.10 FUNCTIONS AND OBJECTS OF LAW
a) Maintain law and order in the society.
b) Ensure Justice
c) A stable, Steadfast and peaceful change in society
d) Law provides principles for conflict resolution between individuals and groups within a society.
e) Law provides procedure for conflict resolution.
Prepared by Sareesh Lohid, 1st semester, Govt Law College Kozhikode
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Unit II
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2.1 Sources of Law
2.2 Legislation - Subordinate and delegated
2.3 Precedent
2.3.1 Stare decisis
2.3.2 Ratio decidendi
2.3.3 Obiter dictum
2.4 Custom
2.4.1 Contract
2.4.2 Conventional
2.5 Secondary sources of law
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2.1 SOURCES OF LAW
Sources of the law are the following:
1. Legislation
2. Precedent
3. Custom
4. Contracts or conventions
2.2 LEGISLATION
The term legislation is derived from two latin words :Legis and Latum. Legis means law and Latum means to make. Legislation means making or setting of laws.
Legislation is the enunciation or promulgation of laws by legislature of a state. Since it is the formal and express declaration of law by the competent body whose duty is to make law, it is known as DIRECT LEGISLATION. It is also called SUPREME LEGISLATION because such laws proceed from supreme law making authority ,namely legislature.
Law making by any other subordinate authority is indirect legislation or subordinate legislation. Instance of such subordinate legislations are the following-
A. Executive legislation-/Delegated Legislations This is rule making by executive authorities by virtue of powers given to them by statues made by the legislature.
B. Judicial Legislations (Judicial Law Making)- These are the legal principles formulated and applied by the judges while deciding cases. These are also called precedents.
C. Autonomous Legislations-These are the rules and bye laws made by the autonomous bodies like university and companies for their own affairs and not for the people generally.
D. Subordinate Legislations:
Subordinate Legislation: Subordinate legislation is that which proceeds from any authority other than the legislature of the state. A subordinate legislation is dependant for its continued existence and validity on some superior authority. A subordinate legislation is made under the powers delegated by supreme authority.
When parliament of India or a state legislature (example Legislative assembly of Kerala) enacts a law and confers to an authority the power to make rules or orders or to issue notifications, the Act which confers such power is known as ‘Parent Act’ or ‘Enabling Act’. If provisions in a subordinate legislation is in violation of the provisions in the Parental Act, the subordinate legislation will be declared ULTRA VIRES (Beyond powers of) and void by the Supreme Court or High Courts. So also ,if the provisions in the subordinate legislation is violative of the Constitution of India, such law can be declared void. If an Executive authority makes a rule, bye-law, regulations or notifications without specific delegation of power in the parent act, the rules, bye-laws etc will be declared void.
Validity of Subordinate Legislation/Delegated Legislation
Certain requirements must be met for the delegation of legislative authority to be valid. These prerequisites are as follows:
- The parent Act, i.e., the Act under which the power to make subordinate legislation is exercised, must be valid.
- The Parent Act's delegation clause must be valid.
- The statutory instrument must not violate certain general norms laid down by judicial decisions, e.g., norms regarding ouster of court jurisdiction, imposing a penalty or tax, giving retrospective effect etc.
- The statutory instrument must not violate any provisions of the Constitution
Reasons for Delegated Legislation are:
Want of Time: Parliament is a busy body. If it devotes its time on entertaining minor and subsidiary issues and attempts to lay down all rules itself, all of its time will be consumed in preparing only a few Acts. Thus, it has to confer rule making power to the executive12.
Technicality of the Matters: Many rules are technical in nature and require consultations with the experts. It is, therefore, more convenient to delegate such rule-making power to the experts who are none else than the executive itself.
Local Matters: There are matters which concern only a particular locality or particular group or profession. Any legislation on these matters needs consultation with the people of that particular locality, group or profession. Thus, some departments are given powers to make changes and rules in consultation with the people acquired with and interested in it.
Advantages of Legislation Over Precedent
- Abrogative Power - Legislation in both constitutive and abrogative whereas precedent merely possesses constitutive efficacy. Legislation not only acts a source of law, but it also has the power to create new laws and change or repeal already existing ones. Contrarily, precedent cannot override the current laws, even though it sometimes results in laws that are in some respect better than legislation.
- Efficiency - The essential functions of formulating and enforcing laws are divided by legislation, thereby enabling a beneficial division of labour. As a result, efficiency is increased. Contrarily, precedent unites the job of creating the law and that of enforcing it in the same hands.
- Provision for future cases - Legislation can make rules in anticipation for cases that have not as yet arisen, whereas precedent must wait for the occurrence of some dispute before the court can create any definite rule of law.
Comparison between Legislation and Custom
Pointing out the importance of enacted law over customary law, Keeton observed that in earlier times legislation was supplemental to customary law but in modern time the position has reversed and customary law is treated supplementary to the enacted law. Laws passed by the legislature are clear, well-written, and comprehensive, thereby making them simple to comprehend. Enacted law is a product of the legislative branch; as a result, it reflects the general will of the populace19. Only after being followed for a considerable amount of time can a custom be recognised as a customary law. Legislation differs from custom in the following aspects:
The existence of legislation is essentially de jure whereas customary law exists de facto.
- Legislation develops from theoretical concepts, whereas customary law develops from usage and a long existence.
- Legislation as a source is historically much latter as compared with custom which is the oldest form of law.
- In contrast to customary law, which is largely unwritten (jus non scriptum) and difficult to trace, legislation is comprehensive, precise, written in form, and easily accessible.
2.3 PRECEDENTS:
Precedents are case laws or judge made laws. They are legal principles formulated and applied by the judges while deciding the cases. These legal principles are followed as precedents in subsequent similar cases. These legal principles are followed as precedents in subsequent similar cases. A decision on a point of law, which has to be normally followed as correct expositions of law in subsequent decisions, is called precedent on the point. Article 141 of the constitution of India states: “The law declared by the Supreme court shall be binding on all courts within the territory of India.”
CLASSIFICATION OF PRECEDENTS
1. Authoritative precedent and Persuasive Precedent
2. Original precedent and declarative precedent
An authoritative precedent is one in which the judges must follow whether they approve of it or not. A decision of House of Lords of England is an authoritative precedent as far as subordinate English courts are concerned.
Decisions of Supreme Court of India are authoritative precedents as far as other courts of India are concerned. Authoritative precedents are legal source of law.
Authoritative precedents are of two types:
1. Absolute Authoritative precedent.
2. Conditionally Authoritative precedent.
Absolute Authoritative Precedent is one which is absolutely binding and must be followed at all circumstances,even though it is unreasonable and erraneous.
Conditionally Authoritative Precedent is one which may or may not be followed at all circumstances. Conditionally authoritative precedent is one which is normally binding on the judge, but he may disregard it in limited circumstances. When he disregard it, he has to show reasons for rejecting it.
A persuasive precedent is one which judges are under no obligation to follow. Foreign judgement have only persuasive effect in India. Decision of Supreme court of America need not be followed by the Indian Judges.
Difference between persuasive precedent and Conditionally authoritative precedent is that in the case of persuasive precedent the judge who accepts it has to state reason for it. In the case of conditionally authoritative precedent , the judge has to show reason for rejecting it.
Original precedent and declarative precedent
Original precedent are those which lay down original or new principle of law.
The original precedent light for the original development of law.
An Original Precedent is a source of law for subsequent conduct.
Case Law: Donogue V Steveson 1932 AC 562. Manufacturer of consumable items should not contain noxious element in consumables. If found, the manufacturer is liable.
Declarative Precedents are those which merely reiterate a recognised principle of law.
Case Law: Mohri Bibi Vs Dhamdas Gosh 1903 ILR 30 -Ab Initio valid
2.3.1 STARE DECISIS
The term ‘Stare Decisis’ originates from Latin. It means ‘to abide by things decided.’
The doctrine of Stare Decisis is used by all courts in all cases/legal issues.
For instance, if the Supreme Court passes a judgment and it becomes a precedent, then as per the doctrine of Stare Decisis, the lower courts must follow such a judgment.
The same principle has been mentioned in Article 141 of the Constitution.
The doctrine of Stare Decisis means that courts refer to the previous, similar legal issues to guide their decisions. Such previous decisions that courts refer to are known as “precedents”. Precedents are legal principles or rules that are created by the decisions given by courts. Such decisions become an authority or an example for the judges to decide similar legal cases/issues in the future. The doctrine of Stare Decisis creates an obligation on courts to refer to precedents when taking a certain decision.
In Reg v Button, 1966 AC 591, the English court over ruled a precedent that stood for a century and half. The court observed that lapse of long time is not a good reason to continue a wrong principle.
In the case of Hari Singh v. The State of Haryana (1993), it was held that in a judicial system that is administered by courts, one of the primary principles to keep note of is that the courts under the same jurisdiction must have similar opinions regarding similar legal questions, issues and circumstances. If opinions given on similar legal issues are inconsistent then instead of achieving harmony in the judicial systems, it will result in judicial chaos. The decision regarding a particular case that has been held for a long time cannot be disturbed merely because of the possibility of the existence of another view.
Further, in the case of ICICI Bank v. Municipal Corporation of Greater Bombay (2005), it was held that the decision given by the Apex Court must be read following the context of the statutory provisions which have been interpreted by the competent court. It was also stated that no judgment can be read if it is a statute. Since the law cannot always be static, based on the relevant principles and rules, the Judges must cautiously make use of the precedents in deciding cases.
2.3.2 RATIO-DECIDENDI
• Literally means ‘Reason for the decision’
• Is the legal principles formulated and applied in the decisions of a case.
• It is the principle declared by judge in the course of its decision and actually made use of for deciding the point in dispute in the case
• Whenever a case comes before a judge for adjudication he is bound to decide the whole matter before his. He cannot decide a case undecided on the ground that there is no law covering the point. If the case before him is not covered by an existing law, then he will have to make a legal principle and apply the same to decide the case in hand. The principle which governs this decision is called RATIO DECIDENDI. The ration decidenti in the decision becomes the law for subsequent cases.
It is this part of the precedent which has to be followed by the courts in subsequent decisions but not the general observations of the court. There is a dispute of law involved with respect to the reasoning given by the judgment and not a dispute of fact. As the facts cannot be similar in other cases, the observations pertinent to the facts made by the judge cannot be binding in the other cases though the similar laws are attracted. But the reasons for arriving at a decision are binding. In case there are multiple reasons for deciding in a manner, all those reasons will be binding in the subsequent cases.
In the case of B. Shama Rao v. UT of Pondicherry, it was observed that any of the decisions of a court which is binding as a precedent is not because of the end result or the order of that decision but based on the reasons and principles referred to in such a decision. The ratio in deciding a case would evolve from the interpretation of a statute, principles of natural justice, and the common law principles. In the case of multiple judges deciding a case, the reasons cited by the majority of them will have an effect of precedent on further cases. But if the judges agree with the judgment or order but not with the ratio for arriving at such a decision, such judgment or order does not carry an obligation to be followed as a precedent. Though it is difficult to pick a ratio from a judgment, the primary duty of judges while arriving at a decision is to determine a ratio, and the court’s duty while citing a case as precedent is to identify what is the ratio in such a case.
Ratio decidendi can be determined by prioritizing the material facts and leaving the unimportant facts behind. Another way to identify ratio is to narrow down the precedents which could be applicable in determining the case. Even in this method, due importance must be given to the majority opinions and the crux of the cases.
Rather than these general techniques, certain specific tests are laid down by the jurists such as Halsbury, Wambaugh, Goodhart, and Julius Stone. These tests are used to this day to correctly determine the ratio of a case.
Descriptive ratio
The descriptive ratio is the rationale or the reason which helped the court to arrive at a decision. It is the original ratio and is used as an aid in future cases.
Prescriptive Ratio
On the other hand, the prescriptive ratio is the way in which the descriptive ratio is used as a precedent in a future case. No case is totally similar to the facts or the law. Due to this reason, there arises a problem in the application of the principle as it is laid down in a future case. Hence, the descriptive ratio is slightly altered by using the level of generality so as to apply it as a prescriptive ratio. In an ordinary sense, we refer to the reason behind the decision but actually, it is much more than that.
● The reason in this regard is not merely applying the law to the facts and coming up with an order.
● Ratio instead refers to the steps that are involved to resolve a dispute, this resolution must be directly related to the issue or issues that are at the core of the dispute at hand.
● It must come from disputes of law, not disputes of fact.
● Ratio Decidendi must be argued in court and the facts of the precedent case shape the level of generality to which the later courts decide the level of generality.
● Ironically when a precedent has multiple reasons, all reasons are binding.
● Ratio becomes a very powerful tool in the hands of a lawyer and that is why it becomes essential for him to comprehend it well.
● To find the ratio in a judgement one looks at the abstract principles of law that have been applied to the facts of that particular case.
Case Laws:
1.Donogue Vs Stevenson (1932)AC 562
2.Reyland Vs Fletcher (1868)
3.M.C Mehta Vs Union of India (1987) 1 SCC 395
2.3.3 OBITER-DICTUM/OBITER-DICTA
A mere say by the way.
Legal principles discussed in the judgement but not applied in the case. Such principles are expression of opinion immaterial to the decision.
In the course of judgement, the judge may declare certain principles to be applied in a hypothetical situation.
An obiter dicta is a legal principle enunciated by the judge but not applied by him for deciding the case in hand. When comparing with ration decidendi (reason for decision) the obiter dictum (by the way) has only little legal authority. It shall have only persuasive effect. Nevertheless, an obiter dictum of supreme court of India will be followed by subordinate courts in India.
Obiter is the term used for remarks made by the judge which are not binding on the parties to the case.
● Statements that are not crucial and refer to hypothetical facts or issues of law not related to the case also form a part of obiter dicta in a judgement.
● Unlike ratio, obiter is not the subject of the judicial decision even if the statements made in this part are correct according to law.
Wambaugh’s Inversion Test provides that to determine whether a judicial statement is ratio or obiter, you should invert the argument, that is to say, ask whether the decision would have been different, had the statement been omitted. If so, the statement is crucial and is ratio; whereas if it is not crucial, it is obiter.
● This is another part of any judgment. Obiter dictum is defined in the case of Mohandas Issardas v. A.N. Sattanathan as the opinion expressed by the judge in the court or during the pronouncement of judgment which does not have any importance in the decision. This is not an important constituent to arrive at a decision but is just used to describe the circumstances. They are the incidental remarks made by the court while dealing with the actual conflict between parties.
● In the case of Sarwan Singh Lamba v. Union of India, the SC observed that in general circumstances, even the obiter dictum mentioned in a decision of the court is expected to be followed. Moreover, the Supreme Court’s obiter dictum carries a considerable weightage. But such weightage depends upon the kind of dictum given by the court. If the dictum is a casual remark by the court, it does have any effect on the parties or the subsequent cases. In another scenario, certain obiter dicta have recommendatory or persuasive value but do not bind anyone. Hence, the ratio decidendi is an important constituent of judgment rather than obiter dicta.
● During erstwhile India, the obiter dicta of Privy Council was given the highest position. In Mohandas’ case, it was held that as the Privy Council is the highest court of appeal, the obiter dictum will also be binding on all the courts in India. But in England, the situation was different with respect to the effect of obiter dicta and it was not binding on any court. (As per Halsbury Laws of England, Volume 22, page. 797)
2.4 CUSTOM
Custom can simply be explained as those long established practices or unwritten rules which have acquired binding or obligatory character. In ancient societies, custom was considered as one of the most important sources of law; In fact it was considered as the real source of law. With the passage of time and the advent of modern civilization, the importance of custom as a source of law diminished and other sources such as judicial precedents and legislation gained importance.
There is no doubt about the fact that custom is an important source of law.
Broadly, there are two views which prevail in this regard on whether custom is law. Jurists such as Austin opposed custom as law because it did not originate from the will of the sovereign. Jurists like Savigny consider custom as the main source of law. According to him the real source of law is the will of the people and not the will of the sovereign. The will of the people has always been reflected in the customs and traditions of the society. Custom is hence a main source of law.
○ General Customs:
These types of customs prevail throughout the territory of the State.
○ Local Customs:
Local customs are applicable to a part of the State, or a particular region of the country.
Custom is a rule of action voluntarily and uniformly observed by people for generations from time immemorial. For a custom to have the force of law, it must conform to the conditions namely.
1. Reasonableness
2. Conformity with statue law
3. Observance as of right
4. Immemorial antiquity
5. Continuity
6. Peace ableness
7. Certainty
8. Consistency with other customs.
9. Antique and immemorial
10. Moral Ethics.
11.Execrcised as matter of right
2.4.1 CONTRACT
A contract is an agreement enforceable by law. An agreement is law for the contracting parties only. It is governed by the law of contracts.
In addition to the above laws are also contained in ordinances, rules, regulations, resolutions, orders, notifications and circulars issues by government and other institutions having powers to the same.
2.4.2 CONVENTIONAL LAW
Conventional law is a set of rules that people agree to follow when they interact with each other. It can be used to supplement or replace the general laws of a country. An example of conventional law is the rules of a game like basketball or golf. Another example is the rules of a club or professional association. Conventional law can also be used in international agreements between countries. It is like a special agreement that has the force of law between the parties involved.
2.5 SECONDARY SOURCES OF LAW:
Secondary sources of Indian law include:
• English law
• Statute Law
• Common law
• Equity
• Law Merchant
• Justice, equity, and conscience
If statutory or personal law is absent in a particular case, Indian courts go ahead with decisions made through ‘Justice, Equity, and Good Conscience’.
2.5.1 English Law
Primary sources of English law include common law, statute law, equity, and law merchant. The English law is referred to by Indian courts when it fails to find a provision from primary sources of Indian law on a particular case. Acts like the Indian Contract Act of 1872, Indian Partnership Act of 1932, Negotiable Instruments Act of 1872, and the Sale of Goods Acts of 1930 have simplified judiciary concerns related to business transactions. Hence, the application of English law is selective in our country
2.5.2 Common-Law
Common law implies to all undocumented legal doctrines which are followed in a country’s judicial arena. These laws have originated out of traditions, and customs followed over centuries, and are not embodied in statutes. It refers to previous judgements made on several cases over years to deliver better justice.
Common law England has originated collectively from preceding case judgements issued in English courts over the years. It is also called ‘case law’. The same has been incorporated in the English and Wales law. However, in an unwritten form.
2.5.3 Principle of Equity
Equity means ‘natural justice’. The principle of equity came into existence to eliminate shortcomings of Common Law. Equity principle in English law refers to a set of rules which were formed from the administration of justice based on every dictate issued in the Courts of Chancery.
For English law cases, in which the common law of England could not prevail, a Chancellor had to take up the responsibility of judgement. Special courts called ‘equity courts’ were set up, and they had a separate existence from that of the Common law courts. These courts followed customs such as:
1. He who seeks justice must do equity.
2. He who comes to equity must come with clean hands.
Just like common law, the principle of equity is also an unwritten and undocumented form of doctrine to solve various limitations of the common law.
2.5.4 Statute Law
Statute law is the written law of a country. It is enacted by the Parliament of that country. The laws are embodied in the Constitution. Statutory law is also an important source of Mercantile Law. These written doctrines can override the unwritten English law of common law and equity.
2.5.5 Law Merchant or Lex Mercatoria
Law Merchant is the primary source from where the Mercantile Law originated. It contains rules which apply to business, trade, and all the people dealing with it. Law Merchant came into existence due to the unsuitability of early English laws in terms of business transactions.
The prevailing common law failed to settle the disputes between merchants. Thus, merchants themselves set up some rules and guidelines of transactions based on customs. These rules and regulations later came to be known as Law Merchant or Lex Mercatoria.
Presently, Law Merchant is a crucial part of the Common Law in England. Certain parts of the Law Merchant have also been codified to form English Law articles. This includes the Sale of Goods Act, 1893, Bills of Exchange Act, 1882, and so on.
2.5.6 Justice, Equity, and Good Conscience
These English law terms were first introduced through the Impey's Regulation of 1781 in India. If in any case or dispute, personal or statutory law does not satisfy the issue, the court can follow the ‘Justice, Equity, and Good Conscience’ procedure. In such cases, the court has to refer to English law.
Early Hindu rules and legal proceedings, which were prevalent in India, had its own version of ‘Justice, Equity and Good Conscience’. Its modern version owes its origin to the British rule. The High courts which were established under British rule suggested that when common or statutory law is silent regarding a matter, it can be solved on basis of ‘Justice, Equity and Good Conscience’.
These three English law terms are usually interpreted as English rules and laws which are applied when written legalities do not suffice. Indian courts also resort to ‘Justice, Equity and Good Conscience’ in absence of Hindu law when it comes to cases related to personal law.
Prepared by Sareesh Lohid, 1st semester, Govt Law College Kozhikode
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Unit III
=================================================================3.1 Plaint
3.2 Written Statement
3.3 Affidavit
3.4 Interlocutory application
3.5 Appeal
3.6 Revision
3.7 Bail
3.8 Memorandum
3.9 Articles of Association
3.10 Deeds
3.11 Conveyancing
3.12 Pleading
3.13 Cause of action
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3.1 PLAINT
Plaint is the grievances of the plaintiff in writing against the defendant, based upon an original cause of action praying for reliefs filed before the civil court of competent jurisdiction.
By Section 26(1) of the code of civil procedure
• A suit is instituted by presentation of a plaint.
• The plaint is the pleading of the plaintiff.
Plaint (Order VII of CPC)
1. Name of the court: The name of the commercial or civil court where the suit will be initiated must be mentioned in the plaint.
2. Details of the plaintiff: The name, address, and description of the plaintiff must be included in the plaint.
3. Details of the defendant: The name, residence, and description of the defendant must also be mentioned in the plaint.
4. Plaintiff's defects: If the plaintiff has any defects or disabilities, a statement to that effect should be included in the plaint.
5. Cause of action: The facts that give rise to the cause of action must be mentioned in the plaint, along with the place where the cause of action arises.
6. Jurisdiction: The plaint must include not only the facts that give rise to the cause of action but also those facts that help in recognizing the jurisdiction.
7. Relief sought: The plaint should clearly state the relief that the plaintiff seeks from the court.
8. Set-off amount: If the plaintiff is ready to set off a portion of their claim, the amount that has been allowed for set-off must be mentioned in the plaint.
9. Value of subject-matter: The plaint must contain a statement of the value of the subject matter of the suit, not only for the purpose of jurisdiction but also for the purpose of court fees.
10. Plaintiff verification: The plaint must be verified by the plaintiff on oath. These necessary contents highlight the importance of a plaint in the successful initiation of suits in commercial or civil courts. A well-drafted plaint plays a vital role throughout the suit.
CPC Rules:
Rules 1 to 8: These rules explain what specific details should be included in the plaint.
Rule 9: This rule tells us how the court should admit the plaint.
Rules 10 to 10-B: These rules discuss what happens if the plaint in CPC needs to be returned and how parties should appear.
Main Rules 11 to 13: These rules lay out the situations in which the court can reject the plaint.
Order VII rule 1 of CPC necessary elements or the various particulars of the plaint.
Order VII rule 2 -In a suit for the recover of the money , the plaint must specify the exact amount that is being claimed by the plaintiff.
Order VII Rule 10,10A,10B-Return of the plaint.
Joginder Tulsi v SL Bhatia 1996->Once the plaint is returned under the order VII rules 10,10A and 10B, the suit must proceed in the proper court from the same stage from which it was transferred.
Order VII Rule 11,Rule 12 and Rule 13-Rejection of the plaint and the reason for rejection.
snp shipping service pvt ltd v world tanker carrier corporation 1999->HC Bombay rejected the plaint due to non disclosure of cause of action in the plaint.
Ashar Hussain v Rajiv Gandi 1986->Meaningless and sham litigation is not permitted.
Meenakshi Sundaram chettiar v Venkatachalam chettiar 1979->11(b) Court can dismiss the plaint if the relief sought is not adequate in nature.
Order VII rule 14- Documents that are to be attached to the plaint.
Order VI Rule 15, the plaint shall consist of a verification and affidavit
Sample Plaint:
IN THE COURT OF THE CIVIL JUDGE, SENIOR DIVISION, [City Name]
Suit No. ______ of 20___
In the matter of:
Mr. A.B.C., s/o ______, aged _____, r/o _______________ ...Plaintiff
Versus
Mr. X.Y.Z., s/o ______, aged _____, r/o _______________ ...Defendant
Plaint filed under Order VIII Rule 1 of CPC by Plaintiff Mr A B C
SUIT FOR [e.g., Specific Performance/Recovery of Money/Permanent Injunction]
The Plaintiff above-named respectfully submits as under:
Description of Parties: That the Plaintiff is [details] and Defendant is [details].
Facts of the Case: That on [Date], the Defendant entered into an agreement with the Plaintiff for [describe transaction/dispute].
Cause of Action: That the cause of action arose on [Date] when [describe breach/incident].
Jurisdiction: That the property is situated/cause of action arose in [City], which is within this Court’s jurisdiction.
Valuation: That the suit is valued at Rs. ______ for the purpose of court fees and jurisdiction.
PRAYER
It is, therefore, prayed that this Hon’ble Court may be pleased to:
a) Pass a decree of [Specific Relief] in favor of the Plaintiff;
b) Award costs of the suit;
c) Pass any other order deemed fit.
[Signatures]
Plaintiff
VERIFICATION
I, [Name], the Plaintiff, do hereby verify that the contents of paragraphs 1 to ___ are true to my personal knowledge and belief. Verified at [City] on [Date].
[Signatures]
Plaintiff
3.2 WRITTEN STATEMENT
Written statement is the statement of defence of the defendant.
When a suit is filed by the presentation of the plaint, the court may issue summons to the defendant calling upon him to appear on a day specified in the summons and answer the claim of plaintiff. The defendant shall present a written statement of his defence.
The Written Statement is an important component of civil litigation in India. It is a response filed by the defendant in a civil case to the plaintiff's claim. The Written Statement is a pleading that specifically denies the allegations made against the defendant in the plaintiff's plaint. The provisions regarding the Written Statement are provided in the Code of Civil Procedure, 1908. The Written Statement is a legal document that provides the defendant with an opportunity to present their side of the story and defend themselves against the plaintiff's claims. It is a written reply statement that contains specific particulars, including a clear and concise statement of the facts of the case, the legal defences that the defendant wishes to raise, and any counterclaims that the defendant may have against the plaintiff. The Code of Civil Procedure, 1908, provides guidelines for drafting and filing the Written Statement. The Written Statement must be filed within thirty days from the date of service of the summons, failing which the court may proceed with the case ex-parte. It should also be in compliance with the rules and regulations governing civil procedure in India. In conclusion, the Written Statement is an important document in civil litigation in India. It provides the defendant with an opportunity to present their side of the story and defend themselves against the plaintiff's claims. The provisions regarding the Written Statement are provided in the Code of Civil Procedure, 1908, and it is crucial to file the Written Statement within the stipulated time limit and ensure that it contains all the necessary particulars.
Order VIII Rule 1->Written statement should be filed by the defendant within 30 days from the day when the summons was served to him.
Order VIII Rule 2->Pleading of new facts
Order VIII Rule 3->Defendant to make an express and specific denial.
Order VIII Rule 10-Consequence of not filing a written statement.
Grant adjournment to defendant.
Pass an ex parte decree
Mohammed Yusuf v Faij Mohammed 2009->Defendant had filed written statement after 3 years, praying for condonation of the delay.
The application was rejected.
Christian Broadcasting Network inc v CBN News p Ltd 2018->Youtube channel CBN news had trademark identical to the CBN news.Defendant did not respond and temp injunction was passed.
Components of Written Statement Format
Here are the key components typically found in a written statement format according to the CPC:
Title: The title should clearly state that it is a “Written Statement” filed under the CPC. It should also include the case number and the names of the parties involved.
Introduction: Begin with an introductory paragraph that identifies the defendant, their address and their role in the case.
Background: Provide a brief background of the case, including the plaintiff’s claims and the circumstances that led to the lawsuit. Mention the court where the case is filed.
Response to Allegations: Respond to each allegation made by the plaintiff in their complaint. Clearly indicate whether the defendant admits, denies, or lacks knowledge of each specific allegation. Use a numbered list for clarity.
Affirmative Defenses: Include any affirmative defences that the defendant wishes to raise. These are legal arguments that, if proven, could excuse the defendant from liability.
Counterclaims: If the defendant has any claims against the plaintiff arising from the same set of circumstances, these should be presented as counterclaims in the written statement.
Witnesses and Evidence: Mention any witnesses or evidence the defendant intends to rely on during the trial to support their defence.
Legal Citations: If there are relevant legal statutes, case law, or precedents that support the defendant’s position, reference these in the written statement.
Relief Sought: Clearly state what the defendant seeks from the court. This may include a request for the case to be dismissed, a specific judgment, or any other appropriate relief.
Verification: The written statement should typically be verified by the defendant or their legal representative, confirming that the contents are true and correct to the best of their knowledge and belief.
Date and Signature: Sign and date the written statement and include the name and designation of the person signing it.
Annexures: Attach any relevant documents, exhibits, or evidence that support the defendant’s case. Refer to these in the written statement.
Sample Written Statement:(Order VIII Rule 1)
IN THE COURT OF THE CIVIL JUDGE, SENIOR DIVISION, [City Name]
Suit No. ______ of 20___
In the matter of:
Mr. A.B.C. ...Plaintiff
Versus
Mr. X.Y.Z. ...Defendant
Written statement filed under Order VIII Rule 1 of CPC by Defendant XYZ
The Defendant above-named respectfully submits as under:
PRELIMINARY OBJECTIONS:
That the suit is not maintainable either in law or on facts.
That the suit is barred by limitation.
PARA-WISE REPLY:
Para 1: Paragraph 1 is admitted/denied.
Para 2: The contents of paragraph 2 are denied. It is false that [give specific denial].
ADDITIONAL PLEAS:
That [Set out new facts or legal defenses].
PRAYER
It is prayed that the suit be dismissed with costs.
[Signatures]
Defendant
VERIFICATION
I, [Name], the Defendant, do hereby verify that the contents of paragraphs 1 to ___ of the written statement are true to my knowledge and belief. Verified at [City] on [Date].
[Signatures]
Defendant
3.3 AFFIDAVIT
A solemnly affirmed or sworn statement in writing made before an officer authorised to administer the oath.
An affidavit is a written statement of facts made under oath before an authorised person, such as a magistrate, notary, or oath commissioner. It is primarily used to present factual information in civil proceedings without the necessity of oral evidence.
The person who is swearing the affidavit is called the deponent. The following rules are to be followed in drafting and affidavit.
a) An affidavit shall be drawn up in the first person.
b) It shall be divided into consecutively numbered paragraphs.
c) The affidavit shall state the full name, age, description and place of abode of the deponent.
d) Every affidavit shall clearly express how much of the statement is to the deponents information knowledge or belief it shall be signed by the deponent.
e) Affidavit is to be sworn or affirmed before any judicial officer, gazetted officer, etc….
f) The person before whom an affidavit is sworn or affirmed shall state the date on which and place where the same is made and sign under his name and designation at the end.
AFFIDAVIT Order XIX of the CPC
The key characteristics of an affidavit are:
Written Statement: The affidavit must be in writing, signed by the deponent (the person making the statement).
Sworn under Oath: The deponent swears or affirms before an authorised officer (e.g., a magistrate or notary) that the contents are true.
Fact-Based: An affidavit must state facts and should not include opinions, arguments, or conclusions.
First-Person Narrative: The affidavit must be written in the first person, as it reflects the personal knowledge of the deponent.
In civil litigation, affidavits serve as evidence. However, courts exercise caution in relying on affidavits and often require additional verification and cross-examination to ensure their authenticity.
Essentials of a Valid Affidavit
To be considered valid and acceptable in court, an affidavit must meet several essential criteria. These are critical for ensuring that the document serves its intended purpose and maintains the integrity of the judicial process.
Declaration by an Individual: An affidavit must be sworn by a single person, known as the deponent, who declares the truth of the facts contained in the document.
Factual Information: The affidavit must only contain facts that the deponent personally knows to be true. It cannot include inferences, opinions, or arguments. This ensures that the affidavit remains grounded in reality and not influenced by the deponent’s subjective beliefs.
Written Form: An affidavit must be presented in written form, either typed or handwritten. It should be legible and clearly state the facts.
First-Person Narrative: The affidavit must be written in the first person, as the deponent is swearing to the truth of their own knowledge.
Oath or Affirmation: The deponent must swear an oath or make an affirmation before an authorised officer, such as a magistrate or a notary. This adds solemnity and authenticity to the document.
Verification of Affidavit
Verification is a crucial component of the affidavit process. The purpose of verification is to confirm that the deponent is personally accountable for the facts presented in the affidavit. Without proper verification, the affidavit may not be considered reliable by the court.
An affidavit must be verified by the deponent, and this verification confirms that the deponent has read and understood the affidavit and is asserting that the facts are true to the best of their knowledge. It also serves to hold the deponent accountable for the contents of the affidavit.
In the case of Khandesh Spg & Wvg Mills Co. Ltd. v. Rashtriya Girni Kamgar Sangh, the Supreme Court held that an affidavit can be used as evidence only when the court directs it to be so. In the absence of such a directive, an affidavit remains a procedural tool but does not automatically carry the weight of evidence.
Rules:
Rule 1: Power to Prove Facts by Affidavit
Rule 2: Attendance for Cross-Examination
Rule 3: Contents and Costs of Affidavits
3.4 INTERLOCUTARY APPLICATION
An Interlocutory Application (IA) is a legal term referring to an application made to a court during the pendency of a case that seeks an interim or provisional order. These applications are crucial in ensuring that justice is not delayed, and they address urgent issues that arise during the course of litigation. Interlocutory applications are filed to address interim relief or urgent matters that cannot wait until the final disposal of the case.
An application in a pending proceeding for interim reliefs during the pendency of any suit ,appeal or other proceedings. It must be supported by an affidavit.
By virtue various provisions of the code of civil procedure and civil rules of practice,
Kerala interlocutory applications may be filed for the following purpose.
1. Advancement of hearing.
2. Attachment before judgement.
3. Amendment of pleading.
4. Restoration of the suit dismissed for default.
5. Setting aside of Ex-parte decree.
6. Temporary injunction.
7. Appointing commission for local investigation.
8. Appointment of receiver.
9. Impleading of parties.
Purpose
Interim Relief: To secure provisional orders while the main case is still pending.
Preventing Harm: Ensures that a party is not prejudiced by delay.
Speedy Resolution: Address urgent issues that cannot wait for the final judgment.
Preservation of Rights: Maintains the status quo or protects rights until the case is finally decided.
Civil Rules of Practice and Circular Orders, Rule 2 (J)
• “Interlocutory application” means an application to the Court in any suit, appeal or proceeding already instituted in such Court, other than a proceeding for execution of a decree or order. The orders which are passed in those applications are called as interlocutory orders.
Rules:
Legal Framework for Interlocutory Applications under CPC
(i) Order 39 – Rules 1-5 (Interim Injunction and Attachment)
These rules under CPC govern the grant of interim relief in the form of injunctions or attachment orders.
Rule 1: Authorizes the court to grant a temporary injunction to prevent harm.
Rule 2: Lays down the conditions for granting such orders, including the requirement for a prima facie case and irreparable injury.
Rule 3: Authorizes the court to order the attachment of property before the judgment.
(ii) Order 40 – Rule 1 (Appointment of Receiver)
Rule 1 deals with the power of the court to appoint a receiver when necessary to safeguard the property and ensure justice.
The court can appoint a receiver to preserve property that is in dispute or is at risk of being misused.
(iii) Order 41 – Rule 5 (Stay of Execution)
Rule 5 gives the court the authority to stay the execution of a decree or order in a case.
This is typically used when a party appeals a judgment and seeks to stop the implementation of the order until the appeal is heard.
3.5 APPEAL
Appeal is a case brought by the party aggrieved by the decision of the lower court, to the higher court.
Appeals can be files in both civil cases and criminal case.
Civil Appeal- Appeal from the Decrees and orders of the district judge’s court and the subordinate judge’s court as provided in the concerned enactments of the respective states.
Second appeals if the case involves a substantial question of law(Section 100 CPC)
In civil cases, appeal is also provided if the high court certifies under artcle 134 A
a) That the case involves a substantial question of law of general importance
b) That in the opinion of the High Court,the said question need to be decided by supreme court.
Criminal Appeal-
Appeal from confirmation of death sentence
Appeal from conviction by a session judge
Appeal from conviction and sentence by any court for more than seven years.
Appeal by government against inadequacy of sentence.
Appeal in case of original or appellate order of acquittal.
In criminal matters the appeal is also provided:
1. If the High Court has on appeal , reversed an order of acquittal, of an accused and sentenced him to death.
2. If the High Court has withdrawn from trial before itself any cases from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death.
3. If the High Court certifies under article 134 A that the case is a fit one for appeal to the Supreme court.
What is an Appeal?
An appeal is a vital legal remedy allowing a higher court to review and potentially correct the decision of a lower court. This process ensures that errors in judgement, fact, or law are addressed, maintaining justice and uniformity in legal proceedings. Appeals serve as a mechanism to provide a second layer of scrutiny, particularly in cases where a party believes that a significant error has affected the outcome.
Legal Framework for Appeals
The Indian legal system provides detailed provisions for appeals under the Code of Civil Procedure, 1908 (CPC), and the Code of Criminal Procedure, 1973 (CrPC). Civil appeals are governed by Sections 96 to 105 of the CPC, whereas criminal appeals fall under Sections 372 to 376 of the CrPC. These frameworks outline the rights of litigants to challenge judgements and specify the procedures for filing and adjudicating appeals.
Purpose of Appeals
The purpose of an appeal is two fold.
Firstly, it seeks to rectify errors of law or fact made by a lower court, ensuring that justice is served.
Secondly, appeals help maintain consistency in the application of legal principles, enabling higher courts to provide authoritative guidance on contentious issues. By addressing procedural and substantive errors, the appellate process reinforces public confidence in the judiciary.
3.6 REVISION
In case where no appeal lies, and if the lower court has exceeded jurisdiction, or failed to exercise jurisdiction, or has acted illegally ,or with material irregularity ,the High court may call for the records and make such order as it thinks fit.
For Criminal revision , the High Court and the court of session are given concurrent jurisdiction.
3.7 BAIL
Bail is the permission granted for a person arrested or imprisoned or detained under custody to be released or set liberty on security
Provision relating to bail can be broadly classified as follows:-
1.Bail in case of bailable offences -is a matter of normal course and if the person is prepared to furnish bail,he shall be released on bail.Such bails can be granted even by the police officer having the accused in custody.It is also provided that the accused may be released on his executing a bond.
2.Bail in case of non bailable offences-is not a matter of normal course. If the person appears or is brought before a court other than the High Court or court of session and is prepared to furnish bail,he may be released on bail.There is an exception.If there appears reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail.This rule of exception does not apply to
• Person under the age of 16 years.
• A women
A sick or infirm person
While granting bail ,the court may impose such condition as it considers necessary:
• To ensure the attendance of the person
• To ensure that he shall not commit a similar offence
• In the interest of justice
3.Direction for grant of bail to person apprehending arrest- This is also known as anticipatory bail. The power is conferred to High Court and Session Courts only.
When any person has reason to believe that he may be arrested on an accusation of having commited a non bailable offence,he may appy for anticipatory bail.The court may, if it think fit, direct that in the event of such arrest, he shall be released on bail.
Conditions that may be imposed by the court:
i.Person shall make himself available for interrogation by a police officer as and when required.
ii.Person shall not directly or indirectly make any inducement , threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer.
iii.Person shall not leave India without the previous permission of the court.
iv.Other conditions:
a) The persons attendance.
b) That he shall not commit a similar offence
c) Interest of justices.
3.8 MEMORANDUM OF ASSOCIATION
Memorandum of association is the basic document of the company. It sets out the constitution of the company and defines the company’s relations with the outside world.
It enables others to know the permitted range of activities of the company. The company cannot do anything beyond the powers stated in the object clause of the memorandum of association. If the act is in excess of the powers, it is ultra vires and void. Alteration of the memorandum is strictly limited to such cases, manner and extent as provided in company’s act.
The memorandum of association shall contain the following clauses:
1. Name Clause- States the name of the company. In case of public limited company the last word must be limited and in case of private limited company the last word must be private limited.
2. Registered Office Clause: State in which the registered office situates
3. Object Clause: Sphere of the activities of the company.
4. Territorial extend Clause: The clause states to which territories the objects of the company extend.
5. Liability clause: This clause states the nature of liability. For limited companies, the fact that the liability of its members is limited ,should be stated.
6. Capital Clause: Capital clause specifies the amount of capital and the division thereof into shares of a fixed amount.
7. Association clause and Subscription: This clause states that the person subscribing their signatures intend to form the association in accordance with the memorandum. They must subscribe their names and signatures which must be attested by witness.
Memorandum of Association SECTIONS
Section 2(26) of Companies act 2013, defines memorandum
Section 3 of companies act 2013, for registering a company,
- In case of public limited company,7 or more people
- In case of Pvt ltd company,2 or more people
- In case of single person company, one person
4(1) of companies act, 1956 -Contents of memorandum
3.9 ARTICLE OF ASSOCIATION:
Articles of association are rules regarding the internal management of the company. It usually contains rules and regulations relating to preliminary contracts,share certificates,calls on shares,lien, transfer, transmission and forefeiture of shares,Directors, dividents ,reserves, alteration of capital, general meetings,accounts, audit and winding up procedures.
Article of association can be altered by special resolution within the powers specified in the memorandum.
Rules:
Article of Association 2(5) of Companies Act 2013
Section 14 -alteration of Article of amendment
Case law Ashbury Railway Carriage and Iron Ltd V Riche
3.10 DEEDS:
Legal documents of conveyancing in order to confer, create, define, extend, extinguish, restrict, release or transfer property of other rights.
Example: Deeds of agreement, exchange, gifts, guarantee, hire purchase, trust , will etc…
3.11 CONVEYANCING
Conveyancing is the legal process of transferring property ownership from one person to another. The legal language used in conveyancing is formal and impersonal, and often uses complex sentences, passive constructions, and multiple negations.
Here are some key aspects of conveyancing:
• Conveyance instrument
A legal document, such as a deed, title, lease, or contract, that solidifies the agreement between the buyer and seller. This document includes the purchase price, transfer date, and other obligations and responsibilities of both parties.
• Conveyancing process
The process begins when the seller accepts the buyer's offer on a property and continues until the buyer receives the keys. The process involves two main phases: the exchange of contracts and completion.
• Conveyancer
A licensed conveyancer or conveyancing solicitor acts on behalf of the buyer or seller to ensure the house purchase is valid under law.
• Jurisdiction
The laws and practices of the jurisdiction where the land is located govern the sale of land.
Conveyance tax
Transfers may be subject to a conveyance tax.
• Fraudulent conveyance
An illegal or unfair transfer of assets to avoid taxes or creditors during bankruptcy.
3.12 Pleadings:
Pleading under the Code of Civil Procedure (CPC), 1908, is a critical aspect of civil litigation in India. Pleadings are the formal written statements filed by the parties in a civil suit to present their claims and defences. They serve as the foundation of the judicial process, helping to delineate the issues in dispute, facilitating a clear understanding of the case and promoting a fair and efficient trial.
What is Pleading?
The CPC defines two main types of pleadings: the plaint and the written statement. The plaint is the document filed by the plaintiff, detailing the facts of the case, the legal basis for the claim and the relief sought. The written statement is the response submitted by the defendant, addressing the allegations made in the plaint and presenting any defences.
Rules of Pleadings
The essence of the rules of pleading can be encapsulated in the phrase, “Plead facts, not law.” This principle requires that the counsel for both parties focus on presenting the facts of their case rather than interpreting or suggesting applicable laws.
Facts are of two types:
Facts Probanda: Facts that need to be proved (material facts).
Facts Probantia: Facts by which a case is to be proved (evidence). Only facts probanda should be included in pleadings.
Basic or Fundamental Rules of Pleadings
- Pleading Facts, Not Law: This principle was first emphasised in the case of Kedar Lal v. Hari Lal, where it was held that parties must state the facts upon which they base their claims. The court applies the law to these facts to render a judgement. Parties should not assert or apply laws in their pleadings.
- Material Facts Only: Only material facts should be included in pleadings. Immaterial facts are not considered. In Union of India v. Sita Ram, the court clarified that material facts include all facts upon which the plaintiff claims damages or rights or upon which the defendant bases his defence.
- Exclusion of Evidence: Pleadings should contain statements of material facts but not the evidence by which those facts are to be proved.
- Conciseness: Facts should be presented concisely, without omitting important details. This ensures brevity and clarity without sacrificing essential information.
Amendment of Pleadings
Rules 17 and 18 of Order VI of the Code of Civil Procedure, 1908, govern the amendment of pleadings. These provisions aim to achieve justice by allowing necessary amendments that help clarify the issues in dispute.
Rule 17: Amendment of Pleadings
Rule 17 provides that either party may be ordered to amend their pleadings at any stage of the proceedings in a manner that is fair and just. The objective is to determine the exact controversial questions between the parties, ensuring that the pleadings accurately reflect the issues at hand.
Rule 18: Failure to Amend
Rule 18 addresses the consequences of failing to amend pleadings as ordered by the court. If a party does not amend their pleadings within the specified time limit or within 14 days if no time is specified, they will not be permitted to amend after the expiration of this period unless the court extends the time.
Case Law:
Kedar Lal v. Hari Lal, where it was held that parties must state the facts upon which they base their claims. The court applies the law to these facts to render a judgement. Parties should not assert or apply laws in their pleadings.
3.13 CAUSE OF ACTION:
• Cause of action is all the facts and circumstances available to a party to institute a suit and to obtain a favourable decree.
• Cause of action is a legal claim that allows a person to seek judicial relief.
• It is a legal right to seek a remedy because of a defendant’s act or omission, failure to perform a duty or breach of obligation.
• It’s a set of facts that justify suing to obtain money or property or to enforce a legal right against another party.
Examples:
1. Breach of contract.
2. Trespass
3. Conspiracy
4. Tort of negligence
5. Passing off.
6. Copyright infringement.
Prepared by Sareesh Lohid, 1st semester, Govt Law College Kozhikode
====================================================Prepared by Sareesh Lohid, 1st semester, Govt Law College Kozhikode
4.1 Use of Law Library – case reading – comment – abbreviation
1.Caveatemptre
2.Actus non-facit reum nisi mens rea
3.Nemo dat quod non habet
4. Autrefois acquit
5.Autrefois convict
6.Causa Proxime, non remota spectata
7.Damnum sine injuria
8.Delegatus non potest delegere
9.De minimis non curat lex
10.Ex nudo pacto non oritur action
11.In turpicausa non oritur actio
12. Fiat justitia ruat coelum
13. Falsus in uno falsus in omnibus
14.Generalia specialibus non derogant
15. Ignorantia juris nominum excusat
16. Necessitasnon habet legem
17. Novus actus interveniens
18.Qui facit per alium facit per se
19. Quid pro quo
20.Ubi jus ibi remedium
21. Audi alterum partem
22. Nemo judex in causa sua
23. Rebus sic stantibus
24. Res ipsa loquitur
25.Spes successionis
26.Ut res magis valeat quam pereat
27. Expressio Unius est exclusio alterius
28.Obiter dicta
29.Populi est suprema lex
30.Volenti non fit injuria
31.Ultra vires
32.Ratio decidendi
33.Lis pendens –
34.Injuria Sine Damnum
4.1 LAW LIBRARY
A law library must contain authoritative books on law for the use of lawyers, judges, law teachers,law students and anyone interested in law.
With respect to the person using law library, it may be classified as:
1. Law Library for Institutions.
2. Law Library for Lawyers.
Law Library for Institution
Eg. Law library for courts, law department of government, Law colleges, Law department of universities.
Law library for Lawyers
In addition to the books generally on all branches of law, a law library for a lawyer,shall also include the law books and publications on the particular branch of law in which he practices.
- State code,
- District code,
- Establishment code,
- Case filing number, and
- Year of the case.
- You can use the CNR number to search for a case on the eCourt India High Courts Services website
In this case, a sailor threw passengers overboard to prevent a lifeboat from sinking. The court held that necessity could be a defence but imposed strict conditions, emphasising that sacrifices must be equitable and not arbitrary.
Rex v. Bourne (1938)
This case involved a doctor who performed an abortion on a minor who had been raped. The court ruled that the act was justified under the doctrine of necessity, as it was performed in good faith to prevent greater harm to the victim.
- Nemo judex idoneus in propria causa est
- nemo debet esse judex in propria causa
- in propria causa nemo judex
- nemo judex in parte sua
- Nemo judex in re sua
- ·The party must notify the other parties of its claim; be it withdrawal, termination, operations suspension or invalidity. This notification shall state the measure to be taken.
- ·There is an expiry period of three months after the receipt of the notification, during which parties to the treaty are allowed to raise objections against the actions of the claimant party. If after the expiry period, no party has raised an objection, the claimant party can proceed with its stipulated measure according to Article 67.
- ·In the event of an objection being raised by any other party, the parties shall together operate to get a solution.
- A law should not be declared invalid just because it is vague or unclear.
- When the courts interpret a law, the primary goal is to ensure that the law remains valid and effective.
- When determining the constitutionality of a law, the courts should start with the assumption that the law is constitutional.
- The correct interpretation of a law is one that aligns with the intention of the lawmakers. The legislature’s goal is to make all parts of the law useful for achieving its intended let the thing be more valued than it perishes
- Interpreting a law in a way that makes any part of it useless or unworkable goes against the legislature’s intent.
- Courts have the authority to declare a law unconstitutional, but they should not introduce vagueness or unconstitutionality into a law by adopting an unusual interpretation or construing it in a specific manner.
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A few of the legal maxims which are followed by Courts in India are as follows:
1. Ab initio – From the very beginning of the law/ act it was bad. Such a term is used in reference to the law, agreements, a deed executed between parties, marriage, etc. If something is said to be void ab initio, the thing was never created or void to begin with.
2. Actus Dei Nemini Injuriam – law holds no man responsible for the Act of God.
3. Actio Personalis Moritur Cum Persona – A personal right of action dies with the person.
It was held that an action for the account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory – Girja Nandini Devi & Ors. Vs Bijendra Narain Choudhury, MANU/SC/0287/1966: AIR 1967 SC 1124: 1967 (1) SCR 93.
4. Actus Curiae Neminem Gravabit – An Act of the Court shall prejudice no man –
Jayalakshmi Coelho Vs Oswald Joseph Coelho, MANU/SC/0145/2001: AIR 2001 SC 1084: 2001 (4) SCC 181..
5. Actori incumbit onus probandi – the burden of proof lies on the plaintiff
6. Actio personalis moritur cum persona – a personal action dies with the person
7. Actus Non-Facit Reum Nisi Mens Sit Rea – The intent and act must both concur to constitute the crime
8. Allegiants Contrarie Non-Est Audiendus – He is not be heard who alleges things contradictory to each other. The principle Estoppel used in the Indian jurisprudence is based on this maxim.
9. Animus Possidendi – intention to possess
10. Assignatus utitur jure auctoris – an assignee is clothed with the rights of his principal
11. Audi Alterem Partem – No man shall be condemned unheard. It is one of the fundamental principles of administrative law and judicial procedure that no decision shall be given against a party without giving him/her a reasonable hearing.
Maneka Gandhi Vs Union Of India & Ors., MANU/SC/0133/1978: AIR 1978 SC 597: 1978(1) SCC 248: 1978 (2) SCR 621.
Swadeshi Cotton Mills Vs Union of India, MANU/SC/0048/1981: AIR 1981 SC 818: 1981 (1) SCC 664: 1981 (2) SCR 533
12. Affirmatis est probare – he who affirms must prove and Affirmanti non neganti incumbit Probatio – the burden of proof lies upon him who asserts and not upon him who denies.
13. Caveat venditor – seller beware
14. Contemporanea Expositio Est Optima Et Fortissimo In Lege –
15. Delegatus non potest delegare – In the absence of power, a delegate cannot sub-delegate its power to another person.
16. Ei incumbit probation, qui dicit, non qui negat – burden of proof lies upon him who asserts and not upon him who denies.
17. Ejusdem Generis – Of the same class, or kind.
18. Falsus in Uno Falsus in Omnibus – False in one thing, false in everything.
19. Habeas Corpus – You have the body. It is a remedy available for a person aggrieved to approach a court of law for an order directing the government to produce a person restrained by it in Court, at a designated time and place, and to ascertain whether the detentions are lawful or not. This power is specifically enshrined in our Constitution – Article 32 and 226. Few examples of the use of the Writ of Habeas Corpus are as under:
20. Ignorantia Facti Excusat Ignorantia Juris Non-Excusat – Ignorance of facts may be excused but not ignorance of the law – the legal principle being that a person who is unaware of a law may not escape liability for violating that law merely because he was unaware of its content.
21. Impotentia Excusat Legem (Impossibility excuses the law and Inability excuses the non-observance of the law) / Lex Non-Cogit Ad Impossiblia (the law shall not expect the performance of the impossible):
“The impossibility of holding the election is not a factor against the Election Commission. The maxim of law impotentia excusat legem is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly be performed. “Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him.” Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like an act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents compliance with the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God.”
22. In absentia – “In absence,” or more fully, in the absence of the person involved.
23. Lex Posterior Derogat Priori/ Leges Posteriores Priores Contrarias Abrogant – A later law repeals an earlier law. A later statute derogates from a prior.
If either of these two conditions is fulfilled, the later law, even though general, would prevail – (i) R.S. Raghunath Vs State of Karnataka, MANU/SC/0012/1992: AIR 1992 SC 81: 1992 91) SCC 335; (ii) Chandra Prakash Tiwari Vs Shakuntala Shukla, MANU/SC/0447/2002: AIR 2002 SC 2322: 2002 (6) SCC 127.
The principle that the latter Act would prevail the earlier Act has consistently been held to be subject to the exception that a general provision does not derogate from a special one – which means that where the literal meaning of the general enactment covers a situation for which specific provision is made by another enactment contained in the earlier Act, it would be presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one – Yakub Abdul Razak Memon Vs State of Maharashtra, MANU/SC/0268/2013: 2013 (13) SCC 1: 2013 (5) JT 142 SC.
24. Lex specialis derogat legi generali – Special law repeals general laws.
25. Locus Standi – The right of a party to bring an action or to appear before the court.
26. Mandamus – means “We command”. A writ of Mandamus is an order or a command that is issued from a superior court such as Supreme Court or a High Court to an inferior Court/ Tribunal to perform or refrain from performing, a particular act, the performance of which is required by law as an obligation. This power is specifically enshrined in our Constitution – Article 32 and 226. Few examples of the use of the Writ of mandamus areas under:
Janet Jeyapaul Vs SRM University & Ors., MANU/SC/1438/2015: AIR 2016 SC 73: 2015 (16) SCC 530.
27. Mutatis Mutandis – With necessary changes.
28. Nemo Debet Esse Judex in Propria Sua Causa – No man can be a judge in his own case. No one ought to be a judge in his own cause.
Bidhannagar (Salt Lake) Welfare Association Vs Central Valuation Board & Ors., MANU/SC/2553/2007: AIR 2007 SC 2276: 2007 (6) SCC 668.
29. Nemo debet bis vexari pro una et eadem causa [A man shall not be vexed twice for one and the same cause] / interest republicae ut sit finis litium (it is in the interest of the State that there should be an end to litigation)
30. Nemo Moriturus Praesumitur mentire – a man will not meet his maker with a lie in his mouth – the underlying principle of Law of Evidence in India which also proceeds on the basis that “a dying man seldom lies”.
31. Noscitur a Sociis – “the meaning of a word is to be judged by the company it keeps”. The meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it. This rule means that when two or more words that are susceptible to analogous meaning are coupled together, they are understood to be used in their cognate sense.
32. Nova Constitutio Futuris Formam Imponere Debet, Non Praeteritis – A new law ought to be prospective and not retrospective, in operation.
33. Nullus Commodum Capere Potest De Injuria Sua Propria/ Juri Ex Injuria Non Oritur – No man can take advantage of his own wrong/ No person can claim any right arising out of his own wrongdoing.
34. Nunc pro tunc – “now for then”.
35. Obiter Dicta – “things said by the way” – meaning remarks of a judge which are not necessary to reaching a decision but are made as comments, illustrations, or thoughts.
36. Pari Materia – Of the same matter; on the same subject.
37. Per Incuriam – By Mistake
38. Qui Facit Per Alium Facit Per Se – He who acts by or through another, acts for himself. A person who does a thing through the instrumentality of another is held as having done it himself.
39. Quid pro quo – What for what or Something for something – there has to be a correlation between a favor or advantage granted in return for something.
40. Quo Warranto – An order issued by the authority of the king. A legal proceeding during which an individual’s right to hold any office or government’s privilege is challenged.
41. Ratio Decidendi – The reason or rationale for the decision by Court.
42. Res Integra – An entire thing; an entirely new or untouched matter. This maxim is usually applied to those points of law which have not been decided and are untouched by any previous dictum or decision of the same court or higher bench of the same court or a higher court to enable Courts to decide the point of law, otherwise, they are bound to follow the general principles already laid down in previous judgments on the issue at hand.
43. Res Ipsa Loquitur – The thing speaks for itself;
44. Res Judicata – A thing adjudged.
Saroja Vs Chinnusamy (Dead) by L.Rs & Ors., MANU/SC/3416/2007: AIR 2007 SC 3067: 2007 (8) SCC 329.
45. Sub Silentio – Under silence; without any notice being taken
46. Suppressio Veri or Suggestio Falsi – Concealment of truth or a statement of falsehood
47. Ubi Jus Ibi Remedium Est– For every wrong, the law provides a remedy. There is no wrong without a remedy – where there is a right, there is a remedy – every right when it is breached must be provided with a right to a remedy.
48. Vigilanti bus et non d ormientibus jura sub veniunt – Law aids the vigilant and not the dormant or laws aid/assist those who are vigilant, not those who sleep upon/over their rights.
49. Volenti Non Fit Injuria – To the consenting, no injury is done.
De minimis non curat lex - Section 33 BNS- The law takes no account of trifles-Trivial acts Not offenses
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References:
Prof K Mony , K.Usha ,LEGAL LANGUAGE, Second Edition -Reprint 2020
https://bnblegal.com/
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