MODULE 1:

Legal Concepts –
LAW

It is not easy to give a precise and concise definition of the term "law". Several authors have attempted
to define this term - only to be faced by criticism from other authors. Defining this term assumes
greater difficulties because everything depends on the perspective from which one looks at "law".
Nevertheless, it is the basic concept in jurisprudence, and it is interesting to see how eminent jurists
have attempted to define this term.

According to Blackstone, "Law, in its general and comprehensive sense, signifies a rule of action, and
is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational.

" Salmond gives a simpler definition of law: "The law consists of the rules recognized and acted upon
in the courts of justice.

" Austin's definition is even simpler: "Law is the command of the sovereign."

In a broad sense, however, the term "law" would include any rule of action, as when one speaks of
the law of gravity and other scientific "laws".

'The law' and 'a law'

The term law is used in two senses : abstract and concrete. When used in the abstract sense, it means
a system of law, as when one speaks of the law of India, the law of defamation, and so on. Used in its
concrete sense, if means a particular statute or enactment, as for instance, the Indian Contract Act,
the Indian Penal Code, and so on.

Kinds of laws

There are many kinds of laws, as for instance, natural or moral law, physical or scientific law,
imperative law, conventional law, commercial law, constitutional law, administrative law, common
law, civil law, criminal law, prize law, procedural law, international law, and so on.

Again, in the law of crimes, the Indian Penal Code is the substantive law, whereas the Criminal Procedure
Code is the procedural law.

Sources of law

The two main sources of law are : formal sources and material sources. Material sources can further
be divided into legal sources and historical sources. This can be summarised as under:

Sources of law

1. Formal

2. Material

a. Legal

Legislation
 Precedent

Custom

Professional opinion

Historical

CUSTOM

Custom is one of the most fruitful sources of law. In fact, it is rightly said that custom is to society what
law is to the State. It is the expression and realisation of the principles of right and justice.

According to Paton, custom is useful to the law-maker in two ways. Firstly, it provides the material out of
which the law can be fashioned, because it usually takes a great deal of intellectual effort to create new
law. Secondly, human psychology being what it is, it is easier to secure reverence and obedience for a law
which is based on a custom which has been observed from times immemorial. There is always a tendency
to feel that what has been followed in the past, would be a safe guide for the future.

Customs are of two types: legal and conventional. Legal customs, in turn, may be general or local.

A legal custom is one which has the force of law, irrespective of any agreement between the parties who
are bound by it. It can be general or local. If it is observed by all the members of a society, it is called a
general custom. But, where a custom is observed only by residents of a particular locality, it is called a
local custom. Thus, a local custom prevails in some defined locality and constitutes a source of law for
that place only. General custom, on the other hand, is that which prevails throughout the country, and
constitutes one of the important sources of the law of the land.

The following are the six requirements of a local custom :

(i) Firstly, it must be reasonable. No court would enforce or accept an unreasonable custom. Thus, in India,
a custom allowing sale of a religious office has been held to be unreasonable.

(ii) Secondly, it should be immemorial antiquity. It must be a custom which has stood the test of time.

(iii) Thirdly, there should be an ethical conviction on the part of those who follow the custom that it is
obligatory, and not merely optional. Thus, when it was shown that sending a cheque by post was
optional in a particular trading community, i. e., it was followed by some traders and not by others, it
could not be said to have become a custom.

(iv) Fourthly, a custom must not be contrary to an Act of the Parliament.

(v) Fifthly, a local custom must also possess the attribute of continuity, i. e., it must have been recognised
by the community without any break or interruption.

RIGHTS

The concept of a right is of fundamental significance in modern legal theory, because we cannot live
without rights which are recognised and enforced by law. In all civilized societies, law consists of those
principles in accordance with which justice is administered by the State, for the purpose of enforcing the
rights of its citizens and for punishing the wrong-doers.
 Learned authors of Jurisprudence have looked upon rights from various angles, and hence, have defined
this term in different ways. Salmond defines a right as "an interest which is recognized and protected by
a rule of law." According to Austin, a party has a right when others are bound or obliged by law to do, or
forbear, something towards, or in regard to, him. Holland defines a right as the ability possessed by a
person to control others' actions and self-protection with the help and assistance of the State. According
to Dr. Sethna, a right is any interest, vested or created under a law or a contract.

Objects of rights

The following are six kinds of rights, with reference to their objects:

1. Rights over material things, as for instance, one's rights over one's house, furniture, car, books, etc.

2. Rights over immaterial or intangible property, as for instance, copyrights, patents, trade- marks,
goodwill, etc.

3. Rights in respect of one's own person, as for instance, the right not to be assaulted or falsely imprisoned.

4. Rights in respect of one's reputation, as for instance, the right not to be defamed.

5. Rights in respect of domestic relations, which includes marital rights (i.e., rights between a husband and
wife), parental rights (i.e., rights of a parent over his child) and a master's rights over his servant.

6. Rights in respect of other rights, as for instance, when a right has another right as its subject- matter.
Thus, under a contract of sale, the buyer acquires a right over the right of ownership of what is sold to
him.

Q. State four different Kinds of rights B u Nov 2005. kinds of rights.

Rights can be divided into the following eleven categories :

1. Legal and moral rights

The right of a wife to be loved by her husband (— who may actually be fond of his neighbour's wife

—) is a moral right, but the right of A to recover money from B on a promissory note is a legal right.

2. Perfect and imperfect rights

The right of A to recover money on a pro-note is a perfect right. But, if he does not file a suit within the
period of limitation, his right becomes an imperfect right, i.e., a right which cannot be enforced in a court
of law. All cases of imperfect rights are exceptions to the maxim, Ubi jus ibi remedium (discussed in
Chapter II of this book).

3. Proprietary and personal rights

Proprietary rights are rights in respect of property, as for instance, a man's rights over his house, furniture,
car, etc., whereas personal rights are rights with regard to a man's status or person, as for instance, his
right of freedom of speech and expression or his free choice of a profession.

4. Inheritable and uninheritable rights

A right is inheritable if it survives its owner; it is uninheritable if it dies with its owner. Generally speaking,
proprietary rights are inheritable, whereas personal rights are not inheritable and die with the owner.

5. Primary and sanctioning rights

If A enters into a contract with B, to supply him with 100 bales of cotton, B’s right to receive the cotton is
a primary right. But, if there is a breach of contract by A, B’s right to receive damages for nonperformance
is a sanctioning right.

6. Principal and accessory rights

The right of a man to a tree which belongs to him is a principal right, but the right to enjoy the fruits of
that tree is an accessory right.

7. Positive and negative rights

If A has bought goods from B, the latter has a positive right to claim the purchase price from A. But, if A is
taken as an apprentice by B in his business, and A agrees not to serve a rival business for two years, B has
a negative right to ensure that, for two years, A forbears from serving anyone else in a competing business.

8. Legal and equitable rights

Legal rights were those which were recognised by the Courts of Common Law. Equitable rights, also called
equities, are those which were recognised solely by the Courts of Chancery.

9. Real and personal rights

A real right corresponds to a duty imposed upon persons in general; a personal right corresponds to a
duty imposed upon determinate individuals. A real right is available against the world at large; a personal
right is available only against particular persons. Thus, X's right not to be defamed is available against the
whole world, but his right to file a suit in a court of law against a person who defames him is personal,
being against a particular person only, or sometimes, only against a specific group of persons.

10. Rights in rem and rights in personam

A right in rem is one which is available against the whole world. A right in personam is one which is
available against a particular person (or persons) only. Thus, the rights of a person not to be defamed or
assaulted, are examples of rights available against the whole world. Such rights are rights in rem, and their
number is countless. But, if X agrees to sell his house to Y, the mutual rights of X and Y are created by
agreement. These rights are personal to both, and if there is a breach of
contract, X can sue Y, or Y can sue X (as the case may be), but third parties can neither sue nor be sued.

11. Rights in re propria and rights in re aliena

If A is the owner of a house, he has a right in propria over that house. Later, he mortgages this house to
B, and gives him possession thereof. B becomes the temporary occupier of the house, but A is still the
owner of the house and has the right to redeem the mortgage. This right, which is for the time being,
detached from as complete ownership of the house, is a right in re aliena.

12. Servient and dominant rights

A, as the owner of a house, has a right of way over the land of his neighbour, B. A's house is the dominant
heritage, and A is the dominant owner. B’s land is the servient heritage, and B is the servient owner.

IV. DUTY

According to Salmond, a duty is an obligatory act; it is an act, the opposite of which would be a wrong.
Duties and wrongs are correlative. The commission of a wrong is the breach of a duty, and the
performance of a duty is the avoidance of a wrong.

A highly debatable question is whether rights and duties are necessarily correlative. There are two views
in the matter. According to one view, every right has a corresponding duty, and therefore, there can be no
duty, unless there is some other person to whom it is due. Proponents of this view argue that there can
be no right without a corresponding duty, or a duty without a corresponding right, — just as there cannot
be a husband without a wife, or a father without a child.

According to this view, every duty is a duty towards some person or persons, in whom the corresponding
right is vested. Likewise, every right is against some person or persons, upon whom a correlative duty is
imposed. Every right or duty thus involves a vinculum legis or a bond of legal obligation, binding two
persons together. According to this school of thought, there is no duty unless there is someone to whom
it is due. Likewise, there can be no right, unless there is someone from whom it is claimed.

The other school of thought does not accept the above, and distinguishes between absolute duties and
relative duties. Relative duties are those which have corresponding rights, whereas absolute duties have
no such rights. This school believes that the essence of a right is that it should be vested in some
determinate person, and should be enforceable by some legal process by such a person.

But, a duty to refrain from committing a public nuisance has no correlative rights.
 According to Austin, every right implies a corresponding duty, but every duty does not necessarily imply
a corresponding right. Thus, if A has a right to receive a debt due to him from B, B also has a duty to pay
that amount to A. But take a case like this : It is the duty of a Magistrate to punish an offender, if his guilt
is proved. In such a case, can it be said that the offender has a corresponding right to be punished?

One may conclude that duties in the strict sense of the term do have corresponding rights, but duties in
the wider sense do not.

V. WRONG : CIVIL WRONG : CRIMINAL WRONG

A wrong is an act contrary to the rules of right and justice. It may be of two kinds:

(a) moral or natural wrong, i.e. an act which is morally or naturally wrong, being contrary to the rules of
natural justice; and

(b) legal wrong, i.e. an act which is contrary to the rules of legal justice and is a violation of the law.

The former falls within the ambit of ethics or morals, whereas the law student is concerned mainly with
the latter, i.e., legal wrongs.

A legal wrong is an act which is authoritatively determined to be wrong by a rule of law, and is therefore
treated as a wrong for the purposes of the administration of justice. The essence of a legal wrong consists
in its recognition as a wrong by the law. It is synonymous with injuria, i.e. a violation of a legal right. A
mere loss (damnum) without the violation of a legal right (injuria) does not give rise to a cause of action.

In the eyes of law, wrongs are of two types:

Civil wrongs and Criminal wrongs.

The former are referred to as torts, whereas the latter are called offences or crimes. (The concept of an
offence is discussed later in this Chapter.)

When a civil wrong is committed, a suit is filed in a civil court, and the Judge may award compensation if
the plaintiff proves the civil wrong, e.g. a tort or a breach of contract. On the other hand, when a criminal
wrong, i.e. an offence, is committed, a complaint is filed in a criminal court, and the Magistrate may
sentence the accused to simple or rigorous imprisonment if the complainant proves the offence, e.g.
murder, rape, kidnapping, etc.

Every wrong inflicts damage, which, in common language means the physical effect of another person's
act. However, legal damage, or damage that constitutes liability in the eyes of law, is neither identical with
actual damage, nor does it necessarily mean any pecuniary loss. Every invasion of a person's legal right or
unauthorised interference with his property imports legal damage. Thus, although the injured person may
not suffer any pecuniary loss by the wrongful act of the other
person, yet, if it is shown that there was a violation of some legal right, the law will presume damage. This
is what is called legal damage.

The principle underlying the maxim, Ubi jus ibi remeaium, is that "if a man has a right, he must have a
means to vindicate and maintain it, and a remedy if he -is injured in the exercise and enjoyment of it, and
indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are
reciprocal". ( Holt C. J. in Ashby v. White, 2 Raym Ld, 938 )

In Ashby v. White (above), it was held that if a man has a right to vote, and the Returning Officer
maliciously refuses to allow him to vote, he can maintain an action against him. in such a case, it is no
defense to argue that the candidate in whose favour he wanted to vote was anyway elected, and that his
single vote would not have made any difference. The plaintiff had a right to vote and this legal right was
violated. He would, therefore, have a remedy at law.

In The Gloucester Grammar School case (1410, 11 Han IV, 47), the defendant, a school-master set up a
rival school next door to the plaintiff's school, with the result that the boys from the plaintiff's school
flocked to the defendant's. When the plaintiff sued the defendant for this pecuniary loss, it was held that
no suit would lie, as bona fide competition is no ground for action, whatever damage it may cause. Fair
and free competition may cause damage, but there is no legal damage in such cases.

REMEDY

(Kindly refer to the maxim, Ubi jus ibi remedium, in Chapter II of this book, where the concept of
"remedy"is discussed at length.)

FACT

The term "fact' has a technical meaning in law. The Indian Evidence Act defines it as —

(a) any thing, state of things or relation of things, capable of being perceived by the senses; or

(b) any mental condition of which any person is conscious.

 Thus, that a man saw something or that he heard something is a fact. That a man holds a certain opinion
or has a certain intention is also a fact.

From the above, it follows that a misrepresentation as to the intention of a person would be a
misrepresentation of fact. In the famous words of Lord Bowen, "the state of a man's mind is as much a
fact as the state of his digestion".

Principal and evidentiary facts

The fact which is sought to be proved in a court of law is called the principal fact (factum probandum),
whereas the facts which lead to establish it are called evidentiary facts (factum probans).

Of which facts evidence can be given

Under the Indian Evidence Act, evidence can be given of the existence or non-existence of facts in issue
and relevant facts, — and of no others. Thus, evidence of all other facts ( — collateral facts — ) is excluded.

Relevant facts

One fact is said to be relevant to another, when it is connected to the other in any of the ways specified
in the Indian Evidence Act.

Facts in issue

A fact in issue means —

(a) any fact from which (either by itself or in connection with other facts), the existence, non- existence,
nature or extent of any right, liability or disability, asserted in any suit or proceedings, necessarily
follows; or

(b) any fact asserted or denied in answer to an issue of fact recorded under the CPC.

Mistake of fact : Effect on contracts

If both parties to an agreement are under a mistake of fact essential to such agreement, the agreement
is void. This rule applies only when the mistake of fact is a mutual, and not a unilateral mistake. However,
a mistake of law, mutual or unilateral, does not affect the validity of a contract unless it is a mistake of
foreign law.

Mistake of fact : Effect under criminal law

Mistake of fact is sometimes a good defence in criminal law. If a person, owing to a mistake of fact, in
good faith, believes himself either bound or justified by law to do that act, he does not commit an offence
under the Indian Penal Code. Thus, in one case, a Police Officer, after making reasonable inquiries, and on
well-founded suspicion, arrested a person under a warrant. In fact, he had arrested

IV. PERSON

The classic definition of the term "person' is given by Salmond in the following words :

"So far as legal theory is concerned, a person is any being' whom the law regards as capable of rights and
duties. Any being that is so capable is a person, whether a human being or not, and no being that is not
so capable is a person, even though he be a man. Persons are the substances of which rights and duties
are the attributes."

Under the Indian Penal Code, the word "person" includes any company or association, or body of persons,
whether incorporated or not.

In common parlance, one tends to personify groups which are not "persons" in the eyes of law. Thus, one
speaks of a firm as a collection of partners; yet, the law does not look upon a partnership firm as a separate
 or distinct person. Likewise, sometimes, a group of persons is personified, as when Judges are referred to
as "the Court", or jurors are referred to as the "jury". One often speaks of "the estate of the deceased",
as if it were a person, although the law does not recognise it as such.

A "legal person", i.e., a person in the eyes of law, as for instance, a company, is a separate, juristic entity.
It has a distinct personality (often referred to as its corporate personality), it can own property and assets,
it can sue and be sued, and it is, in law, separate and distinct from its shareholders and its directors.

Kinds of persons

Persons are of two types, —

Natural and

Legal.

The term natural persons refer to human beings, i.e., persons in fact as well as in law. A legal person, on
the other hand, is any being to whom the law attributes personality by way of a legal fiction.

These are persons in law, but not in fact, as for instance, corporations, registered societies, etc.
Sometimes, they are described as juristic, artificial or fictitious persons.

There are three types of legal persons :

(a) Corporations : Thus, a company is regarded as a separate juristic entity, distinct and separate from the
members who constitute it. Corporations are of two types : corporation aggregate (e.g. a private or
public company) and corporation sole (e.g. the Attorney-General, the Advocate- General, the
Postmaster-General, and so on).

(b) Institution — as for instance, a church or a university.

(c) Fund or estate — as for instance, a charitable fund or a trust.

XII. OFFENCE

An act which is wrong in the eyes of law may be wrong from the angle of civil law or from the angle.of
criminal law. The former is called a tort, whereas the latter is referred to as an offence.

The Indian Penal Code (IPC) defines an offence as something which is made punishable under the IPC or
under any special or local law, as for instance, the Indian Arms Act or the Bombay Prohibition Act.

Punishments for offences under the IPC are also to be found in the said Code. These range from the death
penalty (for grave offences), imprisonment (which may be simple, rigorous or solitary), fine and forfeiture
of property.,

The IPC deals with the following offences:

(c) Criminal conspiracy

(d) Offences against the State, e.g. waging war against the Government of India

(e) Offences relating to the Army, Navy and Air Force

(f) Offences against public tranquility, e.g. unlawful assembly, rioting and affray

(g) Offences by or relating to public servants

(h) Offences relating to elections

 (i) Offences relating to coins and Government stamps

(j) Offences relating to weights and measures

(k) Offences relating to public health, safety, decency and morals

(l) Offences relating to religion

(m) Offences affecting the human life, e.g. culpable homicide and murder

(I) Offences against the human body, e.g. hurt, assault, kidnapping and abduction

(m) Offences against property, e.g. theft, robbery, extortion and dacoity

(n) Offences relating to documents, currency, bank-notes and cheating

(o) Offences relating to marriage

(p) Offence of defamation

(q) Offences of criminal intimidation, insult and annoyance.

Four stages in the commission of an offence

The first stage in the commission of an offence is the intention to commit the offence. Before A actually
shoots his rival, B, at some point of time prior to the actual killing, he forms an intention to eliminate his
rival. However, mere intention to commit a crime (murder, in this case), not followed by any overt act, is
not an offence.

The second stage is preparation to commit the crime. Even this stage is not punishable by the IPC, except
in two cases : preparation to wage war against the Government and preparation to commit dacoity. So,
when A goes to a licensed ammunition shop and buys a gun to kill B, he has still not committed any
offence, — presuming, of course, that he was in possession of a valid license to purchase a gun. He may
still change his mind and spare the life of B. He has not gone beyond the stage of preparation, and so, is
not guilty of any offence.

The third stage is the attempt to commit the offence, — which is a direct movement towards the
commission of the crime after preparations are made. An attempt to commit an offence is punishable,
whether or not the person succeeds in committing the ultimate crime. Thus, A aims the gun at B, and with
the intention of shooting B, pulls the trigger. The bullet misses B, but A is nevertheless guilty of an attempt
to murder B.

The last stage is when the commission of the crime or offence is complete, and the attempt is successful.
If the bullet hits B, killing him, A has committed the offence of murder.

STATE

A state may be defined as a society of men established for the maintenance of peace and justice within a
determined territory. According to Salmond, a state is "an association of human beings established for
the attainment of certain ends by certain means". According to the U. S. Supreme Court, a state is "a body
of free persons, united for the common benefit, to enjoy peaceably what is their own and to do justice to
others".

The end of every organized political association is to provide defence against external enemies and to
maintain peaceful and orderly relations within the association itself. As Hobbes said, the Sovereign carries
two swords : the sword of war and that of justice. The essential functions of a State
are thus war and administration of justice. However, a modern State goes much beyond this. Today, the
State engages in all kinds of social activities, by looking after the welfare of its citizens and promoting their
well-being, by procuring employment, social security and freedom from want. In modern times, in the
strength and welfare of citizens lies the strength and welfare of the State.

Secondary functions of a State

Apart from the two primary functions of a State, viz., war and administration of justice, the modern State
has several secondary functions, which may be grouped under the following three heads:

(a) Legislation, i.e., the making of laws.

(b) Taxation, which is the instrument by which the State obtains the revenue which it requires for
all its activities, and which assumes two forms: direct taxation and indirect taxation.

(c) Other activities, like post office, railways, education, government schools and hospitals,
maintenance of welfare activities, etc.

Types of States

States can be broadly divided as under:

I. Unitary or composite States

1. Unitary (or simple)

2. Composite

a. Imperial

b. Federal

A unitary (or simple) State (e.g. England) is one which is not made up of territorial divisions, which are
themselves States. A composite State is one which is itself an aggregate or group of constituent States,
e.g., India, which consists of the State of Maharashtra, the State of Gujarat, and so on. In an imperial State,
the Government of one of the parts is the common government of all, whereas in a federal State, (like
India), the common government is not one of its parts, but a central government in which all the
constituent States participate.

II Dependent and independent States

1. Independent

a. Fully sovereign

b. Semi-sovereign

Dependent

An independent State is one which possesses a separate existence, being complete in itself. It is fully
sovereign if its sovereignty is, in no way, derogated from, by any control exercised over it by another State.
It is semi-sovereign if it is subordinate to some other State. A dependant (or non-sovereign) State is one
which is merely a constituent portion of a greater State, which includes other States also, and to whose
government it is subject.

XIII.PLAINT : PLAINTIFF : DEFENDANT

A plaint is a statement of claim. It is by presenting this document that a suit is instituted and commenced.
The plaintiff is the person who institutes the plaint, and the person against whom the plaint is filed is
 called the defendant. Thus, the plaintiff seeks relief against the defendant from the court, on the basis of
the cause of action stated by him in the plaint.

When there are two or more plaintiffs in the same suit, they are referred to as co-plaintiffs. Likewise, two
or more defendants are referred to as co-defendants. At times, the plaintiff may not be seeking any relief
against a person, and yet, he is a necessary and proper party to the suit. In such cases, he may be added
as a defendant, but no relief may be claimed against him in the suit. Such a person is sometimes referred
to as a proforma defendant.

The structure of a plaint can be broadly divided into three parts :

I. The heading and the title.

II. The body of the plaint

III. The relief claimed.

Part I - The heading and the title

Every plaint begins with the name of the court in which the suit is instituted, e.g. 'In the High Court of
Judicature at Bombay'. Next to the heading is the title, indicating —

(a) the name, description and place of residence of each plaintiff; and

(b) the name, description and place of residence of each defendant.

Part II- The body of the Plaint

The body of the plaint contains the Plaintiff's statement of his claim and of other, matters which he is
required to state. This would include the following particulars:

(a) A statement of facts constituting the cause of action, and as to when the cause of action arose.

(b) Facts showing that the court has jurisdiction.

(c) Where a party is a minor or a person of unsound mind, a statement to that effect.

(d) A statement of the value of the subject-matter of the suit for the purposes of jurisdiction and court fees.

(e) A statement that since the cause of action has arisen on a particular date, the suit is not time-barred. If,
however, the suit is prima facie time-barred, the plaint must state the ground on which the Plaintiff
claims exemption from the law of limitation.

Part III - The relief claimed

The plaint must specifically state the relief claimed by the Plaintiff. If he is entitled to more than one relief
in respect of the same cause of action, he can claim all or any of such reliefs. But, if he omits (without the
leave of the Court) to sue for any particular relief, he cannot afterwards sue for the relief so omitted.

XIV. COMPLAINT

The concept of a complaint is of prime importance in the law of criminal procedure. The CrPC defines
complaint as any allegation made orally or in writing to a Magistrate, with a view to his taking action under
the CrPC, that some person, whether known or unknown, has committed an offence. A complaint is, in a
criminal matter, what a plaint is in a civil matter. It is one of the modes in which a Magistrate can take
cognizance of an offence.

Any oral or written allegation to a Magistrate would be a complaint, if it satisfies the following four
conditions:
 (i) The complaint must be to a Magistrate, and not to a Judge.

(ii) It must be made with a view that the Magistrate may take action on it. If it is only by way of
information, with no request that action be taken on it, it will not amount to a complaint.

(iii) It should be a request that the Magistrate should take action under the CrPC. If action is
requested to be taken under some other law, e. g. the Bombay Gambling Act, it would not
amount to a complaint. (Hotu v. Emp. 1914 15 Cr. L. J. 657)

(iv) It must allege the commission of an offence. If there is no such allegation, it cannot be a
complaint.

Thus, the following have been held to be complaints:

(a) the presentation of a petition by a complainant, requesting that his complaint should be inquired into;

(b) the petition of a complaint who has withdrawn his case and asks to be allowed to proceed with the
same;

(c) a letter addressed to a Magistrate, conveying the information of an offence and requesting the
Magistrate to take appropriate action.

However, the following have been held not to be complaints:

(a) a statement made in a deposition;

(b) an application for issue of process;

(c) a petition by a wife against her husband for maintenance under S. 125 of the CrPC.

When a complaint is made to a Magistrate, he must examine the complainant on oath to satisfy himself
about the veracity of the complaint. If he finds no prima facie reason to distrust the complainant and the
facts constitute an offence under the law, he must issue a process forthwith. If, on the other hand, he
distrusts the complaint, he must dismiss the complaint.

If it is found that the complaint relates to a dispute of a civil nature, it must be dismissed, even if dressed
up as a criminal offence. If, on the other hand, the allegations disclose a crime, the Magistrate should not
dismiss it, simply because proper technical language is not used in the complaint.
the wrong person. In the circumstances, it was held that he could not be prosecuted for wrongful
confinement. (Emp. v. Gopalia, 1924 26 B. L. R. 138)

Mistake of fact : Effect under the law of torts

Under the law of torts, a mistake of fact is no excuse, except where motive is an essential ingredient
constituting the wrong. Thus, for instance, a mistake of fact is no defence in an action for trespass. If A
trespasses on B's land, he cannot argue that he made a mistake, and thought that the land was his, and
not B's.

Note : A reference may be made to the maxims, Ignorantia facti excusat and Ignorantia juris non excusat,
discussed in the next Chapter.

XII. SUIT

A suit is a legal proceeding between two or more parties in connection with a civil dispute. In the words
of the Privy Council, "the word suit ordinarily means, and apart from some contexts must be taken to
mean, a civil proceeding instituted by the presentation of a plaint." (Hansraj v. Dehradoon- Moussourie
Electric Tramways Co. Ltd. (AIR 1933 P C. 63)

The cause of action, which is a set of circumstances giving rise to the suit, is an important ingredient of a
suit. Where there is no cause of action, there cannot be a suit.

Although this term is not defined by the CPC, it is laid down (in S. 9 of the CPC) that civil courts in India
are empowered to try all suits of a civil nature, excepting suits of which their cognizance is barred. It is
clarified that a suit, in which the right to property is in dispute, is a suit of a civil nature

— even if such a right may depend entirely on questions as to religious rites or ceremonies. However,
suits for vindication of a mere dignity attached to an office are not suits of a civil nature. Thus, a claim by
a swami that he is entitled to be carried on the road in a palanquin on ceremonial occasions is not a suit
of a civil nature and will not be entertained by a civil court. (Sri Sunkar v.

Sidha, 1843 3 MIA 198)

Certain types of suits are expressly barred by the CPC. Thus, the Code bars a fresh trial of matters which
have already been adjudicated upon between the same parties by a competent court.

Likewise, suits for determination of all questions relating to execution, satisfaction and discharge of
decrees and arising between parties or their representatives, are expressly barred.

There are also suits which are impliedly barred. Thus, a suit may be impliedly barred by a general principle
of law, as for instance suits relating to acts of State. A civil court would, therefore, have no jurisdiction to
try such suits. Likewise, no suit will lie to recover costs incurred in a criminal court.

The relevant provisions of the CPC also lay down as to who can be joined as plaintiffs in the same suit, and
likewise, who may be joined as co-defendants. It also makes provisions for representative suits, i. e., suits
where there are numerous persons having the same interests.

The CPC also contains detailed provisions which govern specific types of suits, viz., —

(i) Suits by or against Government or Public Officers

(ii) Suits by aliens

 (iii) Suits by or against foreign states, foreign rulers, ambassadors and envoys

(iv) Suits by or against Rulers of former Indian States

(v) Suit by or against Military, Naval or Air personnel

(vi) Suits by or against corporations

(vii) Suits by or against partnership firms

(viii) Suits by or against trustees, executors and administrators

(ix) Suits by or against minors or persons of unsound mind

(x) Suits relating to family matters

(xi) Suits by indigent persons (sometimes also referred to as pauper suits)

(xii) Suits involving interpretation of the Constitution of India

(xiii) Suits relating to mortgages of immovable property

(xiv) Interpleader suits

(xv) Summary suits

(xvi) Suits relating to public nuisances

(xvii) Suits relating to public charities.

XV. AFFIDAVIT
An affidavit is a statement made by a person on oath. It is a written statement signed by a person and
sworn or affirmed by him before a person who is authorised to administer an oath, as for instance, a
Magistrate or a Notary Public.

All affidavits must strictly confirm to the provisions of Order 19 of CPC. As per this Order, an affidavit
should be confined to such facts as the deponent is able of his own knowledge to prove — except in the
case of interlocutory applications, when statements of his belief may be admitted, provided the grounds
thereof are stated.

An affidavit which is not properly verified cannot be treated as evidence. However, it has been held by
the Supreme Court, that where a writ petition is based on an affidavit which has not properly been
verified, it is not necessary to dismiss the petition on this ground without first affording the party a chance
to file a duly verified affidavit. (Dwarka Nath v. I.T.O., AIR 1966 SC 81)

In order to save the valuable time of the court, evidence of a witness may be allowed to be given on
affidavit, but in such a case, if the opposite party wishes to cross-examine the witness, the court may
order the attendance of the witness, i.e. the deponent, for such cross-examination.

Mogha, in his Law Of Pleadings, enumerates the important rules to be followed in drafting an affidavit.
Some of them are as under :

(i) The name of .the court in which the affidavit is presented should appear at the top of the affidavit.

(ii) Then the full name of the person making the affidavit should be given.

(iii) Then comes the body of the affidavit.

(iv) An affidavit should be divided .into paragraphs, numbered consecutively, and as far as possible, each
paragraph should be confined to a distinct fact.
(v) The words generally used by the declarant are, 'I solemnly affirm' or 'The deponent solemnly affirms
and states as under.

(vi) If there are any alterations or interlineations in the affidavit, they must not only be initialed by the
deponent, but should also be authenticated by the officer before whom it is sworn.

XVI. STAY OF SUITS: STAY ORDER

A stay refers to the postponement or halting of further proceedings in a given case pending before a court
of law. A stay order is an order of the court to suspend all or part of a judicial proceeding.

There are several provisions in the CPC, which deal with stay of suits. The object underlying this provision
is to prevent two courts of concurrent jurisdiction from simultaneously trying two parallel suit6 in respect
of the same subject-matter and between the same parties. It is easy to see that, in the absence of such a
provision, two courts could pass contradictory decrees in respect of the same subject matter litigated
between the same parties.

Cases when the court can stay suits

I. The main provision relating to stay of suits is to be found in S. 10 of the CPC, which provides that no
court can proceed with the trial of any suit if the subject-matter in issue is also directly and substantially
in issue in a previously instituted suit between the same parties, and such previous suit is pending in
the same or any other court in India. Thus, this rule will not cover any pending suit in a foreign court.
For the purposes of S. 10, a suit also includes an appeal.

II. The second instance where a court would stay suits is to be found in Order 30 of the CPC. It is provided
that if a suit is filed by a partnership firm in the name of the firm, the defendant may demand that the
names of the partners and their residential addresses be disclosed to him. If the firm does not comply
with such a demand, the defendant can call upon the court to stay all further proceedings in the matter.

III. Again, when a suit is filed by a minor, it must be filed in his name by another person (like his parent or
guardian) who is called the next friend of the minor. Now, if the next friend retires or dies, or is removed
by the court, the suit te to be stayed until another person is appointed as the next friend in his place.

IV. Every High Court also has the power to stay a suit pending in a subordinate court.

V. In the case of interpleader suits, if any of the defendants is actually suing the plaintiff in respect of the
same subject-matter, the court in which the suit against the plaintiff is pending, must, on being informed
by the court in which the interpleader suit has been filed, stay the proceedings against him. (Order 35
of the CPC)

VI. Lastly, a court has the inherent power to stay —

(i) a suit which is an abuse of its process;

(ii) cross-suits, on the ground of convenience; and

(iii) any suit — even if the case is not covered by S. 10 of the CPC (seen above).

Stay Order & Injunction Order

Laymen sometimes loosely use the term Injunction Order as synonymous with Stay Order. Thus, if a
person obtains an interim injunction against the demolition of his shop, he may say that he has got a stay
order against the threatened demolition. The correct terminology, however, would be to state that he has
obtained an injunction against such demolition.
Lastly, a local custom must be capable of peaceable enjoyment, i. e., enjoyment without any
disturbance or contest.

Recently, custom has lost much of its efficacy as a source of law, owing to the growth of legislation and
precedents. However, the role of custom in India is far more significant than in England or USA. For
instance, a large portion of Hindu Law and Mohammedan Law is uncodified and is based on custom.

JUSTICE

The Dictionary meaning of the term justice is "moral or legal fairness". Thus, justice is of two types :
natural or moral justice, and positive or legal justice. The first is meted out by Nature, by God, whilst
the latter is administered by man. Natural justice is also sometimes referred to as Divine Law or Moral
Law. It is said that natural justice, though often not administered or administered in an invisible form,
is perfect; legal justice is necessarily imperfect.

Natural justice is the ideal and the truth, of which legal justice is the more or less imperfect realisation
and expression. Natural justice and legal justice represent two intersecting circles, as shown in the
figure below. Justice may be legal but not natural or moral. On the other hand, it may be moral but not
legal. At times, it may be both legal and moral, as in the following diagram :

A = Natural Justice

B = Legal Justice

AB = Natural & Legal Justice

The two concepts can be illustrated with an example. X, a notorious cheat, takes a loan from a poor
widow against a promissory note, on which he affixes a postage stamp, instead of a revenue stamp.
Such a promissory note would not be admissible in evidence, and when sued by the poor widow, X is
likely to succeed on a point of law. Legal justice may be done in this case, but moral justice is not. If,
however, after winning the suit, when coming out of the court, Xis hit by a passing car, and is disabled
for life, one may say that, now, natural justice is done in the matter, as God has punished him for
cheating the poor widow.

XII. JUDGMENT

The CPC defines "judgment" as the statement given by the Judge on the grounds of a decree or order.

Under the CrPC, a judgment is to be given immediately after the termination of a trial or at any
subsequent time, of which notice should be given to the parties or their pleaders. However, no
judgment delivered by a criminal court is invalid only by reason of the absence of any party or his
pleader on the day notified for the delivery of the judgment.

The CrPC also provides that every judgment must comply with the following eight requirements:

(1) It must be written in the language of the court.

(2) It must contain the points of determination, the decision on those points, and the reasons
for the decision.
 (3) It must specify the offence of which the accused is convicted (including the section of the
Indian Penal Code, or any other law, as the case may be) and the punishment to which he is
sentenced.

(4) If the accused is acquitted, it must state the offence of which the accused is acquitted and
direct that he should be set at liberty.

(5) If the conviction is under the Indian Penal Code and it is doubtful under which of two sections
the offence falls, the court must distinctly express the same and pass a judgment in the
alternative.

(6) If the conviction is for an offence which is punishable with imprisonment or life-
imprisonment or death sentence, the judgment must state the reason why that particular
sentence was awarded. If a death sentence is awarded, the specific reasons for awarding the
extreme penalty should be mentioned.

(7) If a conviction is for an offence which is punishable with imprisonment for one year or more,
but the court imposes a sentence of imprisonment for three months or less, it must record
its reasons for awarding such sentence, —

(a) unless the sentence is for imprisonment till the rising of the court, or

(b) unless the case was tried summarily under the provisions of the CrPC.

(8) If the accused is sentenced to death, it must be stated that he is to be hanged by the neck
until he is dead.

XVII. APPEAL

The term "appeal" is not defined by the CPC. In Black's law Dictionary, the term is defined to mean
a complaint to a superior court of the injustice done or error committed by an inferior court, whose
judgment or decision the court above is called upon to correct or reverse, it is thus the right of
carrying a case to a superior court to ascertain whether the judgment of the lower court is
sustainable.

The Supreme Court has defined the term appeal as "the judicial examination by a higher court of
the decision of an inferior court". (Lakshmiratan Eng. Works v. Asst. Commissioner of Sales Tax, AIR
1969 S. C. 488)

It is to be remembered that a right of appeal is not a natural or inherent right. It is well-established

that an appeal is a creature of the statute; there is no right of appeal unless it is expressly provided for
by the terms of an Act.

An appeal filed against the decree passed by the court of the first instance is known as a first appeal.
An appeal filed against the decree of the appellate court is called a second appeal. For instance, if a
litigant files an appeal in the High Court against a decree of the City Civil Court, it would be the first
appeal. When he does not succeed, and files a further appeal against the decree of the High Court in
the Supreme Court, that would be a second appeal.
Appeals in civil matters

The CPC provides that every appeal should be in the form of a Memorandum, signed by the Applicant
or his pleader, and must be accompanied by a copy of the judgment appealed against. The general rule
is that any mistake committed by the lower court in weighing evidence, any mistake in the view of law
entertained by the lower court, any misapplication of law to the facts of the case, any material
irregularity committed in the trial of a case, or any substantial error or defect of procedure, is a good
ground of attack in a Memorandum of Appeal.

However, no appeal lies against a Consent Decree,i. e., a decree passed by the court with the consent
of all the parties.

The general rule is that only a party to a suit, who is adversely affected by the decree, or his
representative, can file an appeal. However, even a third party can appeal, if he is aggrieved or
prejudicially affected by the judgment. This can, however, be done only with the leave of the court.

Appeals in criminal matters

Provisions for appeals in criminal matters are to be found in the CrPC. Detailed provisions are made
therein about appeals to the Sessions Court, appeals by the State Government, appeals from
convictions, appeals against acquittals, appeals against convictions by the High Court, etc. The detailed
procedure for hearing appeals in criminal matters, as well as the powers of the Appellate Court are
also to be found in the CrPC. It is also to be noted that a sentence against an accused cannot be
enhanced in appeal unless an opportunity is given to him to show cause against such enhancement.

Appeals under the Constitution of India

Under the Constitution of India, an appeal lies to the Supreme Court in the following four cases :

(a) Appeals from High Courts in civil matters;

(b) Appeals from High Court in criminal matters;

(c) Appeals from High Courts in constitutional matters; and

(d) Special leave appeals, where the Supreme Court, in its discretion, can grant special leave to
appeal from any judgment, decree, sentence or order of a lower court. Such petitions are
also known as Special Leave Petitions (SLPs).

XVIII. REVIEW

Review is an application for a reconsideration of the matter before the court by the same judge
who had earlier decided it.

Under the CPC, any person considering himself aggrieved:

(a) by a decree or order from which an appeal is allowed by the CPC, but from which no appeal
has been preferred; or
 (b) by a decree or order from which no appeal is allowed by the court; or

(c) by a decision on a reference from a Court of Small Causes, — may apply for a review of the
judgment to the court which passed the decree or made the order.

Such an application for review can be filed on any of the following three grounds, namely, —

(i) discovery of new and important matter or evidence, which after the exercise of due diligence, was
not within the knowledge of the appellant or could not be produced by him at the time when the
decree was passed; or

(ii) on account of some mistake or error apparent on the face of the record; or

(iii) for any other sufficient reason.

Thus, although the remedy of review is a unique concept, it is self-limited in its application, in so far as
a review can be granted only in the above circumstances. Where the court feels that there is no
sufficient ground for review, it rejects the application.

The grounds for review explained

(i) The first ground, i. e., the discovery of new and important matters or evidence, will depend upon the
facts and circumstances of each case. However, the new and important matters should be such as, if
produced at the appropriate time, might have changed the decision; they should have existed at the
time of the hearing of the case, but only their discovery was somehow prolonged.

(ii) A mistake or error apparent on the face of record will include both errors of facts and law. The test
should be that no error would be apparent unless it is evident in itself and it should not require any
elaborate argument to establish it.

(iii) The expression 'any other sufficient reason' has quite a wide scope. Nevertheless, it would still
consist of the grounds that are incidental or analogous to the other two grounds.

Incidental provisions

Before an application for review is granted by the court, a notice is issued to the opposite party, so as
to enable him to appear and be heard in the matter. However, a court or tribunal has no inherent
jurisdiction to review its decisions. It can do so only if it is specifically authorised by a statute.

Under the Limitation Act, 1963, the limitation period for a review is 30 days for judgments of all courts
except the Supreme Court.

XII. REVISION

Concept of Revision under CPC

The provisions of the CPC empower the High Court to interfere in revision in any case decided by a
subordinate court in specified circumstances. Under this provision, the High Court may call for the
records of any case decided by a subordinate court in cases in which no appeal lies to such a High
Court, if such subordinate court appears—

— to have exercised a jurisdiction not vested in it by law; or

— to have failed to exercise a jurisdiction so vested; or

 — to have acted in the exercise of its jurisdiction illegally or with material irregularity.

The object of conferring the power of revision to the High Court is to prevent subordinate courts from
acting capriciously, arbitrarily or illegally in the exercise of their jurisdiction. It enables the High Court
to correct errors of jurisdiction committed by the lower courts.

It is also provided that the High Court, cannot, under this provision, vary or reverse any order made in
the course of a suit or proceeding, except where the order, if it had been made in favour of the party
applying for revision, would have finally disposed of the suit or other proceedings.

The High Court has the power to revise any decision, as aforesaid, either suo motu or on an application
made to it by either party.

However, it cannot vary or reverse any decree or order which is appealable.

The following four conditions must be satisfied before a High Court can exercise its power of revision
in civil matters:

(d) A case must have been decided.

(e) The court which has decided the case must be subordinate to The High Court.

(f) The order of the subordinate court should not be an appealable order.

(g) The subordinate court must have passed such an Order in one of the three ways referred to
above.

Revision under the CrPC

Under the CrPC, the High Court or any Sessions Court may call for and examine, the records of any
proceedings before any subordinate criminal court within its local jurisdiction for the purpose of
satisfying itself as to the correctness, legality or propriety of any finding, sentence or other order
passed by such court or as to the regularity of any proceeding of such a subordinate court.

Revision under the Constitution of India

The power of revision has also been conferred on the High Courts under Article 227 of the Constitution
of India, by giving them the power of superintendence over the lower courts and tribunals within their
jurisdiction. However, this power is distinct from the one given by the CPC or the CrPC, because it is
wider in nature, and is not limited by any statutory provisions, as in the case of the CPC and the CrPC.

XII. REFERENCE

Reference in civil matters

Under the CPC., a subordinate court may state a case and refer the same for the opinion of the High
Court when it is of the view that some doubt exists about a question of law. The High Court then
considers the matter, and makes such Order thereon as it deems fit.

The raison d'etre of this useful provision is to enable subordinate courts to obtain the opinion of the
High Court on a question of law in non-appealable cases. A court may make a reference suo motu or
on the application of any of the parties.

Before a reference can be made, the following three conditions must be satisfied :

(a) There must be a pending suit or appeal in which the decree is not subject to appeal.
 (b) A question of law — or of a usage having the force of law — must have arisen in the course
of such a proceeding.

(c) The court trying the suit or appeal must entertain a reasonable doubt on such a question.

In such cases, the court may draw up a statement of the facts and the law point on which the doubt
arises, and after recording its opinion, make a reference to the High Court. Similarly, the party who
makes a prayer to the court for reference must, in his Application, make a mention of the facts of the
case and the doubtful point of law.

It follows from what is stated above, that no reference can be made on hypothetical questions of law.

Reference in criminal matters

Under the CrPC, if a criminal court is satisfied that a case pending before it involves a question as to
the validity of an Act, Regulation or Ordinance, and that it is necessary to determine the same in order
to dispose of the case, it must state a case, setting out its opinion, and refer the matter for the decision
of the High Court. This provision applies when such Act, Regulation, etc. has not been declared to be
invalid or inoperative by the Supreme Court or by the High Court to which such court is subordinate.

XII. WRITS

One of the outstanding features of the Constitution of India is the declaration of Fundamental Rights,
like the right to equality, right to freedom, cultural and educational rights, etc. Any person whose
fundamental rights are violated can move the High Court (under Art. 226 of the Constitution) or the
Supreme Court (under Art. 32), and the court can issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of such Fundamental Rights.

Writ of Habeas Corpus

Habeas Corpus is a Latin term which literally means, "Produce the body". This remedy is available in
all cases of deprivation of personal liberty and wrongful detention. If the court is satisfied that such

detention is illegal, it orders the immediate release of the person who is detained. Normally, it is the
arrested person who makes the application. However, even a relative or a friend can do so to obtain
such release. In one case, even a telegram sent by a prisoner to the Judge was treated as a Habeas
Corpus Petition. (Prem Shankar Shukla v. Delhi Administration, 1980 3 SCC 526)

Writ of Mandamus

The Writ of Mandamus (literally meaning "We command") is directed against any person, requiring
him to do something stated therein, relating to his office, and which the court feels is in the interest of
justice. Its object, thus, is to compel the performance of a public duty. A Writ of Mandamus lies, not
only against executive authorities, but also against judicial and quasi-judicial authorities.

Writ of Prohibition

A Writ of Prohibition is issued by a superior court, directing an inferior court not to exercise jurisdiction
which is not legally vested in it. In other words, .it compels a court to keep itself within the limits of its
jurisdiction. It is issued against a Tribunal when such Tribunal —

(h) is acting without jurisdiction; or

(i) is acting beyond its jurisdiction; or

 (j) is acting in the violation of the rules of natural justice; or

(k) is proceeding under a law which is unconstitutional or ultra vires; or

(l) is acting in contravention of a fundament?1 right. Writ of Certiorari

Certiorari means "to be more fully informed of". This is a Writ issued by a superior court directing an
inferior court to transmit to the superior court, all the records of a pending matter, to be dealt with by
the superior court, in order to ensure that speedy justice would be done in the matter. This Writ is so
named, because in its original Latin form, it required that the King should "be certified" of the
proceedings to be investigated. The object of this Writ is that a superior court may exercise its authority
to ensure that a subordinate court is properly exercising its jurisdiction.

Writ of Quo Warranto

Quo Warranto literally means, "By what warrant" or "By what authority". This is a Writ issued by the
court to a person when he acts in a capacity in which he is not entitled to act. If a person asserts his
claim to a public office, and he is not legally qualified to hold such office, this Writ can be issued.

Thus, a Writ of Quo Warranto can be prayed for against a Chief Minister, a Judge of a High Court, the
Chairman of a Municipality or a member of the University Senate, as all these persons can be said to
hold a public office.

XII. STAY OF SUITS: STAY ORDER

A stay refers to the postponement or halting of further proceedings in a given case pending before a
court of law. A stay order is an order of the court to suspend all or part of a judicial proceeding.

There are several provisions in the CPC, which deal with stay of suits. The object underlying this
provision is to prevent two courts of concurrent jurisdiction from simultaneously trying two parallel
suit6 in respect of the same subject-matter and between the same parties. It is easy to see that, in the
absence of such a provision, two courts could pass contradictory decrees in respect of the same subject
matter litigated between the same parties.

Cases when the court can stay suits

XIX. INJUNCTION

Injunction may be defined as the order of a competent court to —

i) forbid or restrain the commission of a threatened wrong, or

ii) forbid or restrain the continuation of a wrong already begun, or

iii) command the restoration of status quo.

Kinds of injunctions

Injunctions can broadly be classified into two kinds, temporary and permanent injunctions.

Temporary injunction

The equitable remedy of temporary injunction is also known as interim injunction. This injunction may
be granted on an application made at any stage of a suit. It is called temporary because it is effective
only until a particular date, or till the next date of hearing, or till the final disposal of the suit, or till
further orders are passed by the court. The provisions regarding grant of temporary injunctions are to
be found in the CPC, where the circumstances in which a temporary injunction may be granted by the
court are laid down.

In Sitaram v. Banwarilai, (AIR Cal. 105), the court reiterated the three tests to be applied when issuing
temporary injunctions, as under :

(i) whether the plaintiff has made out a prima facie case;

(ii) whether the balance of convenience is in favour of the plaintiff; and

(iii) whether the plaintiff would suffer any irreparable loss or injury if his application for
injunction was disallowed.

In all cases, except where it appears that the object of granting the injunction would be defeated by
the delay, before granting an injunction, the court directs notice of the application to be given to the
opposite party. In cases where such notice is dispensed with, an ex parte injunction can be passed by
the court.

Permanent injunction

A permanent injunction is contained in a decree passed by the court, after fully hearing the merits of
the case. This injunction is the final outcome of the suit. It is also called a perpetual injunction since it
prohibits the defendant from exercising a right or committing an act, indefinitely or perpetually, — as
opposed to a temporary injunction that remains in force only for a certain period of time. The object
of a perpetual injunction is to protect the rights of the plaintiff.

The Specific Relief Act, 1963, lays down certain conditions when a perpetual injunction may be granted
(section 38) and when it may be refused (section 41). Section 39 of the said Act also provides for
mandatory injunctions. Whereas preventive injunctions are issued to prevent breach of a right, a
mandatory injunction is one that directs the performance of the requisite act. However, like all other
reliefs under the Specific Relief Act, the court has ample discretion in the matter of granting
injunctions1 and it may refuse to grant an injunction even if all the requirements of the Act are fulfilled.

XII. ADJOURNMENT

The dictionary meaning of 'to adjourn' is 'to postpone' or 'to break off until later'. Although the court's
power to grant an adjournment is completely discretionary, provisions have been made with regard to
adjournments.

The general rule is that the court may, at any stage of the suit, grant time to any of the parties, and
from time to time, adjourn the hearing of the suit, if sufficient cause is shown for so doing, and reasons
for such adjournment are recorded in writing. In such a case, the court fixes a fresh date for the hearing
of the suit, and it may pass such order as it thinks fit for the costs occasioned by such adjournment.

Order 17 of the CPC also lays down five subsidiary rules governing adjournment, as under :

(a) If the hearing of the suit has commenced, it must be continued from day to day, until all the
witnesses have been examined, unless the court finds, for exceptional reasons (to be
recorded in writing) that an adjournment of the hearing beyond the following day is
necessary.
 (b) No adjournment is to be granted at the request of a party, except where the circumstances
are beyond the control of that party.

(c) The fact that the party's lawyer is engaged in another court is not a ground for obtaining an
adjournment.

(d) If the illness of the party's lawyer or his inability to conduct the case for any reason (other
than his being engaged in another court) is put forward as a ground for adjournment, — the
Court must not grant the adjournment unless it is satisfied that the party applying for the
adjournment could not have engaged another lawyer in time.

(e) If a witness is present in the court, but a party or his lawyer is not present, or though present,
is not ready to examine or cross-examine the witness, the court may, if it thinks fit, record
the statement of the witness, and pass such orders as it thinks fit, dispensing with the
examination or cross-examination of the witness, as the case may be.

The CPC was amended in 1999 to provide that not more than three adjournments can be given to any
party during the hearing of the suit. This is an obvious effort to deal with the tendency of the parties,
particularly the defendant, to unnecessarily delay the progress of the case.

XII. CAUSE OF ACTION

The term 'cause of action' is a basic concept of the law of civil procedure. The term is, however, not
defined by the Civil Procedure Code. The Supreme Court has described it as a bundle of essential facts,
which it is necessary for the plaintiff to prove. (Ganesh Trading Co. v. Moji Ram, 1978 2 SCC 91)

The cause of action is thus the entire set of facts that give rise to an enforceable claim. It gives occasion
for, and forms, the foundation of the suit. The classic definition of the term is to be found in the
judgment of Lord Brett in Cooke v. Gill (1873 8 C.P., 107), where he observed as follows :

" Cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed,
in order to support his right to the judgment of the court."

A suit is always based on a cause of action. There can be no suit without a cause of action. A cause of
action must include some act or omission on part of the defendant, as in the absence of such an act
or omission, no cause of action can possibly accrue. However, it is important to note that it does not
include the evidence necessary to prove such facts, but every fact which the plaintiff must prove to
enable him to obtain a decree.

A cause of action may consist of a single fact or an assemblage of facts. It has however no relation to
the defence which may be set up by the defendant; likewise, it also has no bearing on the nature of
relief claimed by the plaintiff.

Thus, if A sues B in the High Court at Mumbai for non-repayment of a loan, A would aver that the
agreement to give the loan to B was signed in Mumbai, the loan money was paid by A to B in Mumbai,
and the repayment was also to be made in Mumbai. In the circumstances, A would plead that the
entire cause of action has arisen in Mumbai.

As laid down in State of M. P. v. State of Maharashtra ( AIR 1977 SC 1466), a cause of action "refers
entirely to the grounds set forth in the plaint as the cause of action or the media upon which the
plaintiff asks the court to arrive at a conclusion in his favour." Whether or not any particular facts
constitute a cause of action has necessarily to be determined with reference to the facts of each case.
A cause of action must be antecedent to the institution of the suit. Accordingly, when a plaintiff filed
a suit for ejection fifteen days before he was entitled to possession, he failed for want of cause of
action. (Gulzar Singh v. Kalyan Chand (1893) 15 All 399)

It is not uncommon that two claims arise out of the same cause of action, and it is not always that two
claims have to arise from different causes of action. For instance, due to a collision with the defendant's
truck, the plaintiff's bicycle is damaged and he suffers injuries all over his body. Here, though the
transaction [viz. the collision) is one, two causes of action have arisen viz.(i) damage to the bicycle, and
(ii) injury to this body. Here, the plaintiff can bring two separate actions for damages

— one for his own injuries and another for the damage caused to his bicycle. However, he cannot bring
one suit for the injury to his hands and another for the injury to his legs, or one suit for damage to the
handle of the bicycle and another for damage to its wheels.

XII. ISSUES

Under the CPC, an "issue" is said to arise when a material proposition of fact or law is affirmed by the
one party and denied by the other. Material propositions are those propositions of law or fact which a
plaintiff must allege in order to show a right to sue or which a defendant must contend in order to
constitute his defence. Each material proposition which is affirmed by one party and denied by the
other constitutes a distinct and separate issue.

Kinds of issues

Issues can be classified into :

(a) issues of facts,

(b) issues of law, and

(f) mixed issues of law and fact.

At the hearing of the suit, after reading the plaint and the written statement, after hearing the parties
or their pleaders, and after examining the parties, if necessary, the court decides upon what material
propositions of fact or law the parties are at variance. Then, the court proceeds to frame the issues on
which the right decision of the case appears to depend. The main object behind this is to record
precisely the points of disagreement between the parties.

The issues should not be inconsistent with the contentions of the parties made in the plaint or in the
written statement. Hence, framing issues is a very important stage in any suit. Issues are also a notice
to the parties, as to on whom the burden to prove a particular fact in issue lies. The parties accordingly
have to produce evidence in support of their contentions pertaining to the issues.

In view of the above, a court would commit a grave irregularity if it took up the final hearing of a case
without first framing the issues arising in that case.

Often, in the course of the judgement, the court reproduces the issues framed in the case and proceeds
to lay down its findings on such issues.

Amendment of issues
The court also has the power to amend any issues or frame any new issues as it deems fit, at any time
before passing a decree. The court can also, at its discretion, strike out any issue if it appears to be
wrongly framed, at any time before passing a decree.

Further, an application for amendment of the issues can be moved by any of the parties, if the party
finds that an issue which ought to have been framed has not been framed or that the burden to prove
a particular issue is wrongly cast on that party.

While it is true that the parties should be vigilant in ensuring that proper issues are framed, at the
same time, it is also the primary duty of the court to do so, and the court cannot be absolved from this
responsibility merely because the parties have been negligent. (Alleemuddin v. Haji Bashir Ahmad,
1977 A. W. C. 683)

Framing of wrong issues

If the Court frames issues wrongly, the appellate court should frame the proper issues, «nd remand
the case for a new trial. This is, however, not necessary, if in spite of framing the wrong issues, the
judgment gives a finding on the correct issue.

XII. EX PARTE

An ex parte decree is a decree passed in the absence of the defendant. Thus, if in spite of serving the
summons on the defendant, he does not appear, the court may pass an order that the suit shall
proceed ex parte. If the plaintiff makes out a prima facie case, the court may pass a decree in favour
of the plaintiff. However, the judge should take care to see that the plaintiff's case is prima facie proved.
The mere absence of the defendant does not, of itself, justify the presumption that the plaintiff has a
good case.

Setting aside an ex parte decree

In any case in which a decree is passed ex parte against a defendant, he can apply to that court for an
order to set aside the decree. If the court is satisfied that the summons was not duly served, or that
the defendant was prevented from a sufficient cause from appearing before the court on the date of
hearing, the court may pass an order setting aside the decree on such terms as to costs it deems fit.

However, a court shall not set aside a decree merely on the basis of irregularity in the service of the
summons, if it is satisfied that the defendant had notice of the date and sufficient time to appear.
Likewise, no ex parte decree can be set aside, unless a notice thereof has been served on the opposite
party.

Remedies available to the defendant

When an ex parte decree is passed against the defendant, he has five remedies open to him :

(g) He may apply to the court which passed the ex parte decree to set it aside, as stated above.

(h) If such application is rejected by the court, he can appeal against that order of dismissal.

(i) He may file an appeal against the ex parte decree.

(j) He may apply for a review of the judgment passed against him.
 (k) When the ex parte decree is alleged to have been obtained by fraud, he can file a separate
suit to set aside the decree on the ground of fraud. (Abdul v. Mahomed, 1894 21 Cal. 605)

Limitation period for setting aside ex parte decrees

The application to set aside an ex parte decree must be filed within thirty days from the date of passing
such decree.

XII. CHARGE

"Charge" under the Criminal Law

A charge is an important step in a criminal proceeding, which separates the state of inquiry from a
trial. A charge may be defined as a precise formulation of a specific accusation made against a person
for an offence alleged to have been committed by him.

The purpose of a charge is to inform the accused, as precisely and concisely as possible, about the
matter with which he is charged. The framing of a proper charge is thus vital to a criminal trial and is a
matter on which the Judge ought to bestow the most careful attention.

The object of a charge is to warn the accused about the case which he has to answer. It therefore
cannot be an accusation in the abstract, but should be a concrete accusation of an offence alleged to
be committed by a person. In the words of the Privy Council, "The necessity of a system of written
accusation specifying a definite criminal offence is of the essence of criminal procedure." ( Subramania,
5 C. W. N. 866)

The following are the four ingredients of a charge:

(a) It must state the offence with which the accused is charged.

(b) If the law has given a specific name for that offence (as for instance, murder, kidnapping,
abduction, theft, robbery, etc.), it must be described by that name only. If there is no such
specific name, so much of the definition of the offence must be stated, as to give the accused
notice of the matter with which he is charged.

(c) The law (i.e. the name of the Act, e.g. the Indian Penal Code) and the section of such an Act
under which the offence is alleged to have been committed must be mentioned in the
charge.

(l) The charge must be written in the language of the court.

The whole idea of framing a charge is to enable the defence to concentrate its attention on the case
that it has to meet. Hence, if the charge is framed in a vague manner, so that the necessary ingredients
of the offence are not brought out, the charge would be defective.

There must be a separate charge for every distinct offence for which a person is accused, and every
separate charge must be tried separately. However, a Magistrate may try together all or any number
of charges framed against an accused, if the accused applies in writing and the Magistrate is also of
the opinion that such a person is not likely to be prejudiced thereby.
"Charge" under the Transfer of Property Act

Under the Transfer of Property Act, the term "charge" has a totally different connotation. The said Act
provides that where immovable property of one person is made security for the payment of money to
another, and the transaction does not amount to a mortgage, the latter person is said to have a charge
on such property. This may happen either by act of parties or by operation of law. A charge is governed
by all the provisions of the said Act which apply to simple mortgages.

The word "charge" is a wider term than "mortgage". A mortgage can be created only by act of parties,
whereas a charge can be created either by act of parties or by operation of law.

XII. BAIL

The dictionary meaning of 'bail' is setting an accused person free before he is tried, often on a condition
that a sum of money would be forfeited if he does not attend the trial. Thus, a bail is a security given
to the court to assure that the accused person shall remain present on the day of the trial.

All offences are either bailable and non-bailable. In the case of a bailable offence, bail must be granted
to the accused, and the magistrate has no discretion in the matter. Thus, in the case of bailable
offences,the grant of bail is a matter of course. However, in the case of a non-bailable offence, the
court may release such a person on bail, only subject to the conditions laid down in S. 437 of the
Criminal Procedure Code. Needless to state, bailable offences are relatively minor in nature, whereas
non-bailable offences are more severe in nature. To find out whether an offence is bailable or not, one
has to refer to the Schedule of the Criminal Procedure Code.

While granting bail, the court has the discretion to put restrictions on the movements of the accused.
It can direct the accused to remain present in the police station at a particular time; it may also direct
him not to leave that particular city or not to go abroad, in which case, it may also direct the accused
to surrender his passport.

Kinds of Bail

There are various kinds of bail. Bail can be in the form of cash amount to be deposited in the court
which is forfeited in case the accused remains absent. Bail can be also in the nature of a personal bond
executed by the accused, undertaking to pay to the court, the amount of money decided by the court,
in case he remains absent on the day of the trial. This bond can be with one or more sureties, wherein
the sureties undertake to pay to the court, the amount of money mentioned in the bond on the failure
of the accused to so remain present.

Yet another kind of bail is anticipatory bail. As the very name suggests, it is a bail in anticipation of
arrest. If any person has reason to believe that he may be arrested on an accusation that he has
committed a non-bailable offence, he may apply to the High Court or to the Sessions Court for
anticipatory bail. The Supreme Court has defined anticipatory bail as a pre-arrest legal process when
the court directs that if such person is thereafter arrested on that particular charge, he should be
released on bail. It is thus an insurance against police custody upon arrest on a particular charge.
(Gurbaksh Singh v. State of Punjab, 1980 2 SCC 565)

Judicial discretion in granting or refusing bail

The process of granting or refusing bail involves a careful use of judicial discretion, so as to serve the
twin object of social defence and individual freedom. This discretion should, therefore, be exercised in
a sound and judicious manner, and not arbitrarily or capriciously. All relevant considerations must be
kept in mind, as for instance, the gravity of the offence, the nature of the evidence, the possibility of
the accused influencing the witnesses, the possibility of his going "underground", and so on.

There is a strong feeling that, in India, the worst sufferers of the legal provisions relating to bail are the
poor, whilst the not-so-poor (to put it mildly) take undue advantage of such provisions. One recalls the
recent Tandoor case, where the accused was alleged to have killed the victim in a tandoor, and whilst
the Police were trying to arrest him, he obtained an anticipatory bail from the Sessions Court in
Chennai.

It is in this context that the mechanical granting of bail, sometimes as a matter of course, and
sometimes for undesirable reasons, came in for vehement criticism from the Supreme Court in
Hussainara Khatoon v. State of Bihar (AIR 1978 SC 1675), where it was observed as under:

"The system of bail operates very harshly against the poor, and it is only the non-poor who are able to
take advantage of it by getting themselves released on bail."

XII. CONVICTION : ACQUITTAL : DISCHARGE

The terms conviction, acquittal and discharge are peculiar to the branch of criminal law, although the
word discharge is also used in a totally different sense in civil law, particularly in the law of contracts.
Incidentally, the term conviction also has another connotation in the English language, when it means
a strong belief or opinion, as, when one says that a person has a strong conviction about a particular
religion.

Under the criminal law, if the court finds no ground to proceed against an accused brought before it,
the court may discharge him. However, if the court deems otherwise, the trial begins and at the end
thereof, it is proved that the accused had, in fact, committed the offence, he is convicted of that
offence. If it is shown that he had not committed the act for which he was charged, he is acquitted.

Under the provisions of the CrPC, when an accused appears, or is brought before the court, the latter
examines all the relevant documents and gives an opportunity, both to the prosecution and to the
accused, to be heard in the matter. Thereafter, if the court considers that there is no sufficient ground
for proceeding against him, it must discharge the accused, and record its reasons for doing so. The
object of the provision (of recording the reasons) is to enable a superior court to examine the
correctness of the order discharging the accused. (L. M. Muniswamy, AIR 1977 SC 1489)

On the other hand, if such court is of the opinion that there is ground for presuming that the accused
has committed the offence, the court frames a charge against him, and such charge is to be read out
and explained to him. The accused is then asked whether he pleads guilty of such offence, or whether
he claims to be tried by the court.

When the accused pleads guilty, the court records such plea, and may, in its discretion, convict him on
such plea. If, however, he refuses to plead, or does not plead, or claims to be tried, or when he is not
convicted despite pleading guilty, the case proceeds against him. At the end of the trial, if the court
finds that the accused is not guilty, i.e., if the court considers that there is no evidence that he
committed the offence, it must acquit him, and record an order of acquittal. If, on the other hand, the
court finds that the accused is guilty, it convicts him of that offence.

However, before a sentence is passed, the accused has to be heard on the question of the sentence to
be passed against him. Only after this, the court passes a sentence against him according to law. This
requirement gives an opportunity to the accused to urge some ground in regard to the quantum of
the sentence, as for instance, that he is the sole bread-earner of the family, a fact that may not have
come out during the entire trial. This provision has serves a healthy social purpose.

The Supreme Court has held that when the minimum sentence provided by law is imposed by the
court, as for instance, in the case of murder, the question of providing an opportunity to make
submissions on the quantum of punishment, does not arise. (Tarlok Singh, AIR 1977 SC 1747)

In cases where the court discharges or acquits all or any of the accused and it is of the opinion that
there was no reasonable cause for making the accusation against him or them, it may order the person
against whom the offence was alleged to have been committed, to pay compensation to the accused,
or to each of them, as the case may be.

Rule against double jeopardy

In England, the common law maxim, nemo debet bis vexari, postulates that "a man cannot be brought
into danger for one and the same offence more than once". Therefore, if a person is, once again,
charged for the same offence, he can plead, as a complete defence, his former acquittal or conviction,
as the case may be. In other words, he can take the plea of autrefois acquit or autrefois convict.

This rule is also referred to as the rule against double jeopardy, and in India, this right is conferred by
Article 20 of the Constitution of India and S. 300 of the CrPC. It is, however, also clarified (by S. 300 of
the said Code) that the dismissal of a complaint or the discharge of an accused does not amount to an
acquittal for the purpose of the rule against double jeopardy.

The American Constitution also recognizes this rule and provides that no person shall be subject, for
the same offence, to be put twice in jeopardy of life or limb.

Other legal connotations of the term "discharge"

The term discharge is also used in the law of contracts, albeit in a totally different sense. There are
several ways in which a contract is discharged, as for instance, by performance, breach, frustration,
novation, and so on. (A reference may be made to a book on the law of contracts for a detailed
discussion on discharge of contracts.)

Likewise, a bankrupt may be discharged under the Insolvency Acts, or a surety may be discharged, as
when he is released from his liability as a surety. Similarly, when a debtor pays all his debts, he is
discharged from further liability towards his creditors. In the same way, a jury is discharged after it
gives its verdict or on failure to agree on a verdict. So also, when an employee is discharged for
unlawful reasons, one talks of his wrongful discharge. Under English law, the term constructive
discharge is used when an employer makes the working conditions of an employee so intolerable that
the employee is compelled to leave the job.

IV. LEGAL HEIRS

When a person has made a valid will in his lifetime, his estate goes to the legatees mentioned in the
will. However, if he dies intestate, i.e., without having made a will which is capable of taking effect, his
property devolves upon his legal heirs. An heir is thus a person who is entitled to inherit the property
of a person who has died intestate.

Kinds of legal heirs

1. An heir apparent is an heir (e. g., a son), who will inherit the property — unless he himself dies before
the father or is excluded by a valid will.

2. An heir presumptive is an heir (e. ga daughter) whose right to inherit may be lost by the birth of an
heir with a higher priority (e. g., a son).

3. An after born heir is one who is born after the death of an intestate from whom he inherits.

4. A collateral heir is one who is not a direct descendant, but whose kinship is through a collateral line,
such as a brother, sister, uncle, aunt, etc.

5. A forced heir is a person whom the deceased could not have excluded because of a law which
reserves a part of the estate for such an heir.

Provisions governing Hindus

As far as Hindus are concerned, the Hindu Succession Act, 1956, defines an heir as any person who is
entitled to succeed to the property of a Hindu dying intestate. The said Act lays down detailed lists of
heirs, separately for Hindu males and Hindu females.

Under the Hindu Succession Act, if two persons die simultaneously, in circumstances which make it
uncertain as to who died first (e.g. in a plane crash or a shipwreck), then, for the purpose of

determining the legal heirs, it is to be presumed, until the contrary is proved, that the younger survived
the older.

Provisions governing Muslims

The Muslim law of inheritance is not codified by statute, but can be traced to the customs of ancient
Arabia and the rules laid down by the Koran.

The three principal classes of heirs under the Hanafi (Sunni) law are the Koranic heirs, the Agnatic
heirs, and the Uterine heirs.

The Shia law, however, does not accept the above classification of legal heirs. The three classes of legal
heirs under the Shiite (Shia) law are : (a) Class I heirs, e. g., parents and children; (b) Class II heirs, e. g.,
grandparents, brothers and sisters; and (c) Class III heirs, e. g., paternal and maternal uncles and aunts.

Provisions governing Parsis

The Indian Succession Act, 1925, provides for the classes of legal heirs, when a Parsi dies intestate.
Prior to its amendment in 1991, separate rules were laid down for Parsi males and Parsi females.
However, after the 1991 Amendment, Sections 51 to 56 of this Act lay down rules which are common
to male and female Parsis.

Provisions governing other communities

Sections 31 to 49 of the Indian Succession Act lay down a list of legal heirs in the case of intestates
other than Hindus, Mohammedans, Buddhists, Sikhs, Jains and Parsis. Thus, these provisions would
apply mainly to Indian Christians, Europeans and Jews.

IV. LEGAL REPRESENTATIVES

In Black's Law Dictionary, a representative is defined as one who stands for, or acts on behalf of,
another. A legal or personal representative is defined in the said Dictionary as a person who manages
the legal affairs of another because of incapacity or death, as for instance, an executor or administrator.
Under S. 211 of the Indian Succession Act, the executor or administrator of a deceased person is his
legal representative, and all the property of a deceased person vests in such a legal representative.
However, a person who comes forward to provide funeral expenses of the deceased does not, for that
reason only, become his legal representative.

Under (i) the Patents Act, (ii) the Designs Act, and (iii) the Arbitration and Conciliation Act, a legal
representative is defined as a person who in law represents the estate of a deceased.

Under the income-tax Act, if income is received by a person in whose hands it is taxable, a notice can
be served on him. If, however, he dies before this can be done, a notice can be served on the executor,
administrator or legal representative of the deceased, who is bound to comply with the same, and the
income of the deceased in his hands is liable to be assessed. The legal representative

is, in such cases, obviously not personally liable, and tax is to be paid only out of the estate of the
deceased.

The maxim, Actio personalis moritur cum persona, means that a personal right of action dies with a
person, meaning thereby that his legal representatives are not liable after his death. However, recent
legislation in India and England has virtually abolished this doctrine. Shortly stated, today, if the
deceased has committed a tort which involves a wrongful appropriation of the plaintiff's property and
has added it, or its proceeds, to his own property, the plaintiff can sue the legal representative of the
deceased. Likewise, the Workmen's Compensation Act gives a right to the legal representatives of a
workman to sue the employer. Under the law of torts, if the cause of action is personal in nature, e.g.
defamation, adultery or seduction, the same does not survive against the legal representative of the
person who committed such a tort.

The CPC defines a legal representative as a person who, in law, represents the estate of a deceased
person. The term also includes any person who intermeddles with the estate of the deceased.

Where a party sues, or is sued, in a representative character, the term aiso covers the person on whom
the estate devolves on the death of the party so suing or sued.

Thus, the term legal representative denotes "the classes of persons />n whom the status of a
representative is fastened, by reason of the death of a person whose estate they are held to represent".
(Bisheshar Dayal v. B. B. Singh, 1929 Oudh 353)

However, a mere trespasser is not a legal representative, as he does not intermeddle with the estate
of the deceased with the intention of representing it. (Nagendra v. Haran, 1933 37 CWN 758)

It is also not necessary that the legal representative should be a person who is in possession of the
property of the deceased. All that is necessary is that he should be a person on whom the estate
devolves.

If a suit is filed by two plaintiffs and one of them dies, in cases where the right to sue does not survive
to the remaining plaintiff alone, an application for substitution of the legal representative of the
deceased plaintiff becomes necessary. If no such application is made, the suit will abate (i.e. it will not
be allowed to continue).

If there is a dispute as to who is the legal representative of the deceased plaintiff or defendant, the
court may hold an inquiry into the matter and determine the question.

XII. POWER OF ATTORNEY

Before the Powers of Attorney Act, 1882, was passed, there was no codified law relating to powers of
attorney. This Act was hence passed to amend the law relating to powers of attorney.

The Act defines a power of attorney as including any instrument empowering a specified person to act
for and in the name of the person executing it. In simple words, a power of attorney is a document by
which one person authorises another to act and do something on behalf of the person authorising.
The person who executes the power of attorney is called the donor and the person in whose favour it
is executed is called the donee.

A document executed by the donee in the name of the donor, by virtue of his power of attorney, is as
effective as if the document is executed by the donor himself. A power of attorney is valid only in the
lifetime of the donor and it automatically ceases to operate on the death of the donor.

In a way, a power of attorney is an example of an agency. The holder of the power of attorney acts as
an agent of the donor of the power ( - the principal - ), and whatever he does on behalf of the principal
is binding on the principal and also on third parties.

Kinds of powers of attorney

Powers of attorney can be general and special. A general power of attorney is one that authorises the
donee to do anything on behalf of the donor. Thus, if A is going abroad for a year, he may authorise
anybody, say, his father, sister, friend, etc., to do anything and everything which A himself could do. On
the other hand, a special power of attorney is one which authorises the donee to do any act in respect
of a particular transaction only. Thus, A can execute a power of attorney in the name of B in connection
with the sale of his property only. This would include negotiating the sale of the property, receiving
the purchase amount, giving a receipt to the purchaser, etc.

A power of attorney can be restricted for a particular period, and such a power would be ineffective
on the expiry of that period. If no such period is specified, it will be effective until it is revoked by the
donor.

I. INTERNATIONAL LAW

There are two branches of law which use the terminology, International Law : Public International Law
(or the Law of Nations) and Private International Law (also known as Conflict of Laws).

Public International Law

Public international law consists of rules acknowledged by the general body of civilized independent
States, to be binding upon them in their mutual relations. (Birkenhead)

According to Salmond, public international law is essentially a species of conventional law and has its
source in international agreements. It consists of those rules which sovereign states have agreed to
observe in their dealings with one another.

Thus, public international law is that body of rules which regulates the relations between different
states, as also between individuals and states. Rules of international law have developed as a result of
international conferences, multilateral treaties, opinions and writing of jurists, etc.

According to Dr. Sethna, international law is "all that body of customs, usages, conventions, and
principles of international propriety and natural justice, as have been accepted or recognized by the
nations of the world".
There is an interesting controversy on whether public international law can really be called "law".
Austin and his followers do not consider it as law proper, because, in their opinion, there is no sanction
behind such law. Perhaps the only sanction is international opinion, and according to the Austinians,
this is not sufficient for the purpose of enforcement of law. Modern jurists are, however, of the opinion
that law need not have sanction or force for is enforcement. They feel that restraint is not necessarily
an important element of any law, though it is a powerful characteristic of law. They argue that, today,
international censure is a more powerful weapon than the sanction which underlies civil law.

Private International Law

Private International Law, also referred to as Conflict of Laws, is a totally different subject.

It deals mainly with cases of private individuals, where a foreign element is involved. Thus, a dealer
from India sells his goods to a dealer in France, the delivery to be effected in Germany, and the money
to be paid in Italy. In case of a breach of contract, a question may arise as to whether a suit may be
filed in India or in France or in Germany or in Italy. After that question is answered, the next question
would be : Which of the four legal systems would apply ? Additionally, if the same two traders have
already litigated earlier, a further question would arise as regards the recognition and enforcement of
the earlier judgment.

Thus, the three primary questions before the court in a case involving Private International Law are :

(a) choice of jurisdiction, i. e., which court would have the right to try the case;

(b) choice of law, i. e., which law would the court apply; and

recognition and enforcement of foreign judgments

XII. ARBITRATION
Arbitration is a process by which parties to a dispute get the dispute settled through the intervention

of a third person called the arbitrator. According to Mozely and Whitely, arbitration takes place
when two or more parties submit all matters in dispute to the judgment of arbitrators who are to
decide the controversy. Halsbury describes it as a reference of a dispute between two or more
parties, for determination, after hearing all the parties, by a person or persons other than a court
of competent jurisdiction.

Arbitration is thus a means of settlement of disputes by the decision, not of the regular courts of
law, but of a person or persons appointed by the parties themselves. It is thus a form of Alternate
Dispute Resolution (ADR). It is in vogue today, both at the national as well as international levels,
as it is a much faster mode of resolving legal disputes. Whereas court cases can drag on
indefinitely, arbitration is much quicker. The principal aim of arbitration is to have a dispute settled
without wasting time and money in a regular suit. Legal technicalities do not attach to arbitration
proceedings and the provisions of the Indian Evidence Act do not apply. The arbitrator or
arbitrators hear the parties, and give their decision (called the Award), which is binding on the
parties.

A dispute may be referred to a sole Arbitrator, i.e. an Arbitrator chosen with the consent of all the
parties. The other alternative is to have an odd number of Arbitrators, the most common being
three. One Arbitrator is appointed by each of the parties, and then, these two Arbitrators appoint
the third Arbitrator (sometimes referred to as the Referee or Umpire).
 An arbitration agreement may take the shape of a separate agreement between the parties, or
may be in the form of an arbitration clause in a commercial agreement. In India, an arbitration
agreement must be in writing, which includes not only a signed document, but also an exchange of
letters, telegrams, telex, fax, etc.

Under S. 28 of the Indian Contract Act, an agreement to oust the jurisdiction of a court is void.
However, an agreement to refer past or present disputes to arbitration does not contravene this
provision.
In India, provisions governing arbitration are to be found in the Arbitration and Conciliation Act, 1996,
which is enacted on the lines of the Model Law and Rules of UNCITRAL (United Nations Commission
on International Trade Law), and designed for universal application. It covers both domestic and
international arbitration, and makes special provisions for enforcement of foreign Awards.

Matters which cannot be referred to arbitration

The following matters lie within the ambit of law courts only, and therefore, cannot be referred to
arbitration:

(m) Criminal proceedings.— An arbitrator cannot arrogate to himself the powers of a Magistrate,
and decide whether or not a person has committed an offence.

(n) Matrimonial matters. — It is the exclusive privilege of law courts (e.g. family courts) to decide
on matters of divorce, alimony, custody of children, and so on. These matters cannot be
settled by an arbitrator.

(o) Insolvency proceedings. — The question of insolvency is decided by civil courts, and not by
arbitrators. However, disputes between an insolvent and his creditors can be referred to
arbitration.

(p) Lunacy proceedings. — An arbitrator has no power to declare a person to be a lunatic. This
is the sole privilege of law courts and other authorities appointed by statute.

XX. JURISDICTION

Jurisdiction means the extent of the authority of a court to administer justice. Jurisdiction is of three
kinds, namely, pecuniary jurisdiction, territorial jurisdiction and jurisdiction as regards the nature of
the suit.

Pecuniary jurisdiction refers to a bar on a court from trying a case when the value of the suit exceeds
a given monetary limit. Thus, when the Small Causes Court is conferred jurisdiction in all cases where
the amount or value of the subject-matter of the suit does not exceed Rs. 10,000/-, this would be an
instance of pecuniary jurisdiction.

The rule that a court cannot try a suit for immovable property situated beyond certain limits refers to
the territorial jurisdiction of the court.

When certain types of suits, e.g. partnerships suits, are excluded from the cognition of the Small
Causes Court, it can be said that the court has no jurisdiction in such matter on account of the nature
of the suit.

The jurisdiction of the court may be original or appellate. In the exercise of its original jurisdiction, the
court entertains a suit filed before it for the first time. When exercising its appellate jurisdiction, the
court entertains appeals from decrees passed by subordinate courts. Thus, the High Court at Mumbai
exercises both these types of jurisdiction. On the original side of the High Court, one finds suits filed
in the High Court itself, i. e. not in appeal from a lower court. When exercising its appellate jurisdiction,
the High Court disposes of appeals against decrees passed by subordinate courts.

It is to be noted that when a court has no jurisdiction in a particular case, the parties cannot, by mutual
consent, confer such jurisdiction on the court. No amount of consent or waiver can create jurisdiction
which a court does not possess.

If, in a particular case, two courts would have concurrent jurisdiction, it is open to the parties to agree
that only one of them would decide disputes arising out of a contract entered into between them. In
such a case, one would say that a particular contract is, for instance, "subject to Mumbai jurisdiction".

XII. AMICUS CURIAE

The term amicus curiae, in Latin, means "a friend of the court". Such a person is not a party to the
proceeding, but since he is a friend of court his sole function is to advice — or make suggestions — to
the court. In State v. Finley, it was observed that "An amicuscuriae is one who gives information to the
court on some matter of law in respect of which the court is doubtful." Thus, the function of such a
person is only to make useful suggestions to the court.

The term amicus curiae is explained in Black's Law Dictionary as a person who is not a party to a suit,
but who petitions the court, or is requested by the court, to file a brief in the suit, because that person
has a strong interest in the subject-matter of the suit. In American jurisprudence, such a person is
sometimes also referred to as a "bystander" or "stander-by", who informs, or makes suggestions to,
the court.

In Village of North Atlanta v. Cook, it was observed as under:

"The literal meaning of amicus curiae is friend of the court, and the term includes persons, whether
attorneys or laymen, who interpose in a judicial proceeding to assist the court by giving information or
otherwise, or who conduct investigation or other proceeding on request or appointment thereof by
the court." Thus, amicus curiae implies the friendly intervention of counsel to call the court's attention
to a legal matter which has escaped, or might escape, the court's consideration; but, a right to be so
heard is entirely within the discretion of the court.

According to the Oxford Dictionary of Law, the term implies a Counsel who assists the court, by putting
arguments in support of an interest that might not be adequately represented by the parties to the
proceedings ( - such as a public interest litigation - ), or by arguing on behalf of a party who is otherwise
unrepresented. In the modern practice prevailing in England, when a court requires the assistance of
an amicus curiae, it is customary to invite the Attorney-General to attend, either in person or by
counsel instructed on his behalf, to represent public interest. Likewise, counsel have been permitted
in England to act as amicus curiae on behalf of professional bodies like the Law Society.

In one case, it was observed that amicus curiae is not appointed as a private counsel of the parties in
a suit to represent them in a partisan manner and for their personal use and benefit. His function is
not, however, to take over the conduct of a case for the litigating parties. (City of Kansas v. Kindle)

In other words, the concept connotes the friendly intervention of a Counsel to "remind" the court of
some matter of law which might have escaped its notice, and with regard to which there may be a
danger of its giving a wrong finding. Such a person is not a party to the suit and has no control over
such a suit.

In one case, a person who was neither an officer nor an attorney nor an agent of a railroad company,
and who was not authorised to act for it, filed a notice of appeal from a judgment against the company
as amicus curiae. The court held that he had no power to do so. (Southern Rly. Co. v.

Locke)

To take just one example from the Indian context, in D. K. Basu v. State of West Bengal (discussed at
length in a later Chapter), whilst hearing the Writ Petitions before it, the Supreme Court felt the
necessity of getting some assistance from the Bar, and therefore, requested a Senior Advocate, Dr.

A. M. Singhvi, to assist the Court as amicus curiae.

Legal Maxims -
Actus de nemini facit injuriam" is a Latin legal maxim that translates to "An act does not wrong
anyone." This principle is foundational to tort law and implies that no one has a legal right to complain
or seek redress for an act that does not violate another person's legal rights.

In the context of torts, which are civil wrongs that result in harm or loss and lead to legal liability, this
maxim emphasizes the idea that a person cannot be held liable for a legal wrong if their actions do not
infringe on the rights of others. Essentially, for a legal claim in tort to be valid, there must be a violation
of a legal right.

It's important to note that this principle has its limitations, and there are situations where an act, even
if it does not directly harm someone, could still lead to legal consequences. Additionally, the legal
interpretation and application of maxims can vary based on jurisdiction and legal traditions.

Salus Populi Est Suprema Lex

"Salus populi est suprema lex" is a Latin legal maxim that translates to "The welfare of the people is
the supreme law." This principle reflects the idea that the well-being and safety of the public should
be the highest priority and can justify actions that might otherwise be considered legally or ethically
questionable.

Example: Public Health Measures During a Pandemic

During a public health crisis, such as a pandemic, government authorities may need to implement strict
measures to protect the health and safety of the population. These measures could include
quarantine, lockdowns, travel restrictions, and mandatory vaccinations.

In such a situation, the principle of "Salus populi est suprema lex" justifies these actions, even if they
involve limitations on individual freedoms or privacy. The well-being of the entire community is
considered paramount, and measures taken to prevent the spread of a contagious disease are deemed
necessary for the greater good.
While the principle underscores the importance of public welfare, it's crucial to strike a balance
between protecting the population and respecting individual rights. Legal systems often provide
mechanisms for scrutinizing and challenging government actions to ensure that they are proportionate
and reasonable in relation to the public health threat.

1. Nemo Tenetur Sepisum Accusare:

 Translation: "No one is bound to accuse themselves."

 Example: In criminal law, a person cannot be compelled to testify against themselves.

This is the principle behind the right to remain silent, protecting individuals from self-
incrimination.

2. Leges Postpriores Priores Contrarias Abrogant:

 Translation: "Later laws repeal earlier conflicting ones."

 Example: If there are two conflicting statutes, the one enacted later in time prevails.
For instance, if an old law prohibited certain activities but a new law allows them, the
new law takes precedence.

3. Nova Constitutio Futuris Formam Imponere Debet Non Praeteritis:

 Translation: "A new law ought to impose a form for the future and not for the past."

 Example: If a new tax law is enacted, it applies to future income and transactions, not
retroactively to income earned or transactions completed before the law's enactment.

4. Noscitur a Sociis:

 Translation: "A word is known by the company it keeps."

 Example: If there is ambiguity in the interpretation of a legal term, surrounding words

or phrases can be examined to understand its meaning within a specific context.

5. Expressio Unius Est Exclusio Alterius:

 Translation: "The expression of one thing is the exclusion of another."

 Example: If a statute lists specific items or categories, it is presumed that anything not
listed is intentionally excluded. For instance, if a law mentions specific types of
vehicles, it might imply the exclusion of other types.

6. Vigilantibus, Non Domientibus, Jura Subveniunt:

 Translation: "The laws assist those who are vigilant, not those who sleep."

 Example: This maxim emphasizes the importance of diligence. In legal matters, it

suggests that those who actively protect their rights are more likely to receive legal
remedies compared to those who are passive or negligent.

7. Quod Ab Initio Non Valet in Tractu Temporis Non Convalescit:

 Translation: "What is not valid from the beginning does not become valid with the
passage of time."
  Example: If a contract is initially invalid due to a legal defect, the passage of time alone
cannot cure that defect. The contract remains invalid unless corrected through legal
means.

1. Nullus Commodum Capere Potest De Injuria Sua Propria:

 Translation: "No one can take advantage of his own wrong."

 Example: If someone willingly damages their property, they cannot later claim
compensation for the harm caused by their own actions.

2. Cessante Ratione Legis, Cessat Ipsa Lex:

 Translation: "The reason of the law being ceased, the law itself is ceased."

 Example: If a law was enacted to address a specific problem, and that problem no
longer exists or is no longer relevant, the law may become obsolete.

3. Acta Exteriora Indicant Interiora Secreta:

 Translation: "Outward acts indicate the inward intent."

 Example: In contract law, if someone signs a document indicating their agreement to

certain terms, it is presumed that they intended to be bound by those terms,
regardless of their internal thoughts or intentions.

4. Domus Sua Cuique Est Tutissimum Refugium:

 Translation: "To every man his home is his castle."

 Example: Emphasizing the inviolability of one's home, this maxim implies that
individuals have a right to privacy and security within their own homes, and
unwarranted intrusion may be legally challenged.

5. Nemo Est Haeres Viventis:

 Translation: "No one is an heir to the living."

 Example: A person cannot inherit property from someone who is still alive.
Inheritance comes into play after the death of the person leaving the property.

6. Ignorantia Facti Excusat, Ignorantia Lex Non Excusat:

 Translation: "Ignorance of fact excuses, ignorance of the law does not excuse."

 Example: If someone is unaware of a specific fact relevant to a legal matter, it might

be a valid defense. However, not knowing the law itself is generally not a valid defense.

MODULE 2:

Law Reports, Magazines and References to Case Laws

Law Reports
In law, as in all other sciences, reference is often made to what are known as "first principles". One
look at the early Law Reports would show the importance attached, even in those days, to legal maxims
(which are usually expressed in Latin). Although Latin may be a dead language today, these maxims
are so manifestly steeped in reason, public interest and convenience, that they find a place in the
jurisprudence and laws of every civilized country.

The last few centuries have seen a tremendous increase in commerce, unfortunately accompanied by
a corresponding increase in commercial and personal litigation. This, in' turn, has brought about many
subtleties and nice distinctions in the application, and sometimes, even the exclusion, of these maxims.
This development has, however, not diminished their value, but has rather emphasised the importance
of studying them even more intimately, so that they may be applied, qualified or limited, as required
by the facts and circumstances of each case.

A knowledge of these maxims or first principles is therefore of utmost value, not only to a student of
law, but also to the legal fraternity, the lawyer and the judge.

Thirty important maxims of law are given below, with a brief discussion of their meaning, contents,
illustrations and references in case-law. Equally important are their exceptions and limitations, if any,
because such qualifications to the maxims are always to be borne in mind before a particular maxim
is argued by the lawyer or applied by the judge. The cases where courts in India and in England have
applied these maxims, as well as cases where they have refused to do so, have also been highlighted.

I. UBI JUS IBI REMEDIUM

(There is no wrong without a remedy)

"Jus" means the legal authority to do or demand something, and "remedium" means the right of action
in a court of law, i.e., a right to sue. Thus, the maxim lays down that whenever there is a legal right,
there is also a legal remedy. In other words, there is no wrong without a remedy. Needless to say, both
the right infringed and the remedy sought should be legal.

The principle underlying this maxim was explained by Holt C. J. in Ashby v. White (discussed below)
thus:

"If a man has a right, he must have a means to vindicate and maintain it, and a remedy, if he is injured
in the exercise and enjoyment of it, and indeed it is a vain thing to imagine a right without a remedy,
for want of right and want of remedy are reciprocal."

Exceptions

Although, in a way, the law of torts owes its development to this maxim, it should not be understood
to mean that there is a legal remedy for every wrong. If the damage suffered is not legal damage
(injuria), no suit will lie, and the maxim will not apply. Such damage would be a case of damnum sine
injuria or damnum absque injuria, i.e., damage without legal injury. (A reference may be made to the
discussion under the next Maxim.)

At times, the law offers immunities to certain classes of persons, as for instance, the Crown, Judges,
Diplomats and Members of Parliament. Likewise, no action will lie against a witness in a legal
proceeding for defamation. (Seaman v. Netherclift, 2 C.P.D. 53)

Moreover, there are many moral and political wrongs, which are not recognised by law and are,
therefore, not actionable. A cruel war may raze houses to the ground, or oppressive legislation may
reduce men to moral slavery, or a contract required to be made on a stamped paper may be made
orally; in all these cases, irreparable harm may be caused, and yet, a legal remedy may not be available.

It has, therefore, aptly been remarked by Justice Stephen that the maxim would be more intelligibly
and correctly stated, if it were to be reversed to say that where there is no legal remedy, there is no
legal wrong.

Illustrative cases where the maxim was applied Ashby v. White : (1703) 2 Raym Ld. 938

In this leading English case, the defendant, a returning officer at a voting booth, wrongfully and
maliciously refused to register a duly tendered vote of the plaintiff, who was a qualified voter. The
candidate for whom the vote was sought to be tendered was, however, elected and no actual loss was
suffered by the rejection of the plaintiff's vote. The court held that the plaintiff had a right to

D.K. Basu v. State of West Bengal : (1997) 1 SCC 416

In this landmark case, the Executive Chairman, Legal Aids Services, West Bengal, a non-political
organisation wrote a letter to the Chief Justice of India, drawing his attention to the news items
published in some newspapers regarding custodial deaths. Applying this maxim, the court held that a
mere declaration of invalidity of an action or finding of custodial violence or death in lock-up, does not
by itself provide any meaningful remedy to a person whose fundamental right to life has been
infringed. Hence, although the Constitution has no provision for compensation, the Supreme Court
judicially evolved a right to compensation in such cases.

Illustrative cases where the maxim was not applied Munster v. Lamb : 11 Q.B.D. 588

A lawyer who is working in his professional capacity under the instructions of his client, will fall under
the class of privileged persons, and hence, no action will lie against an advocate for slander uttered in
the course of a judicial inquiry. In such a case, this maxim will not hold good.

Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan : AIR 1997 S. C. 152

This writ petition was filed by pavement dwellers who were in unauthorised occupation of footpaths
on the main road in Ahmedabad, contending that the Corporation sought to remove their
encroachments before granting them an opportunity of being heard. Reversing the decision of the
High Court, the Supreme Court held that the encroacher cannot claim any legal right so as to have a
remedy, and therefore, cannot demand compliance with the principles of natural justice.

I. DAMNUM SINE INJURIA

(Actual damage suffered without legal injury)

By "damnum" is meant damage or injury in the ordinary sense of the term, as for instance, loss of
money, physical hurt, loss of health or reputation, and so on. The term "injuria', on the other hand,
connotes a legal injury, as for instance, a tort. Such injuria may or may not be accompanied by
damnum, i.e. actual loss or damage.

The maxim thus covers actual damage, where there is no infringement of a legal right. In such cases,
the mere fact of harm or loss does not make the act wrongful, although the loss may be substantial,
and in some cases, irreparable. Damage thus suffered in the absence of the violation of any legal right
is referred to as damnum sine injuria or damnum absque injuria.

Thus, in order to make a person liable in law, some legal injury must be proved. Actual damage without
such legal injury would not be actionable. There are many acts, which though harmful, are

not wrongful in the eyes of law, and therefore, do not give rise to a right of action in favour of the
person who suffers such harm.

This maxim is a reflection of the fact that there are many acts which may inflict the most terrible harm,
and yet, no legal redress is available in respect of such acts. Thus, if Dr. A is the only doctor in his
neighbourhood, and Dr. B decides to open his clinic just across the same street, Dr. A may suffer a huge
financial loss, but he will have no remedy at law, as his damnum is not accompanied by injuria.

The general principle underlying this maxim is that exercise of one's ordinary rights, within reasonable
limits, does not give rise to an action, merely because it causes damage to another. If it were otherwise,
it would become almost impossible to carry on the ordinary affairs of life without doing anything which
may cause loss or inconvenience to others. Every act of one man may, in this sense, cause detriment
to another.

Illustrative cases in which the maxim was applied Gloucester Grammar School Case : (1410) Y. B. 11
Hen. IV

In this case, the defendant, a school-master, set up a rival school next to that of the plaintiff, with the
result that boys from the plaintiff's school flocked to that of the defendant. The plaintiff sued the
defendant for the loss thus suffered by him. The court held that no suit would lie, because bona fide
competition can afford no ground of action, whatever damage it may cause.

Chasemore v. Richards : (1895) 7 H. L. C. 349

In this case, the plaintiff was the owner of an ancient water-mill. For more than sixty years, the occupier
of the mill was enjoying the flow of a river for the purpose of working the mill. The Local Board of
Health sank a well in their own land and pumped up large quantities of water. The result was that the
percolating underground water, which would otherwise have found its way to the river and helped to
work the plaintiff's mill, was obstructed, and the plaintiff could not work his mill.

When he sought to make the defendant liable, the court held that doing of an act which is otherwise
lawful cannot give rise to a cause of action in tort, however much the loss caused to the other party
may be.

Illustrative cases of injuria sine damnum

The expression injuria sine damnum is just the reverse of damnum sine injuria. There are cases where
"legal injury" is present, though no actual loss or damage has been inflicted. The law believes that if
there is an infringement of a legal right, the same is actionable, whether or not any actual loss or
damage has been caused, — as will be clear from the following cases.
 Ashby v. White : (1703) 2 Raym. Ld. 938

In this leading English case referred to earlier, the defendant, a returning officer at a voting booth,
wrongfully and maliciously refused to register a duly tendered vote of the plaintiff, who was a qualified
voter. The candidate for whom the vote was sought to be tendered was, however, elected and no
actual loss was suffered by the rejection of the plaintiff's vote. The court held that the plaintiff had a
right to vote and this legal right was violated by the defendant. He, therefore, would

have a remedy at law. The plea that the rejection of the vote did not result in an injury was not allowed
as a defence.

Marzetti v. Williams : (1830) 1 B. & Ad. 415

In this case, it was held that a suit can be filed against a bank which has sufficient funds belonging to
the customer in its hands, for refusing to honour the customer's cheque. In such cases, whether the
customer has or has not sustained any actual loss or injury would be immaterial. Although the
customer could not show that he suffered any actual loss, the court held that he was entitled to
damages.

I. VOLENTI NON FIT INJURIA

(Damage suffered by consent is not a cause of action)

The maxim, volenti non fit injuria, means that an act is not actionable at the instance of any person
who has expressly or impliedly consented to it. If an act is done with the consent of the plaintiff, or the
plaintiff has freely and voluntarily, with full knowledge of the nature and extent of risk, agreed to an
act, he cannot complain against that act.

This maxim, which is based on sound principles of justice and good sense, has a dual application. It
applies, in the first place, to intentional acts, which would otherwise be torts, as for instance, consent
to a physical harm which would otherwise be an assault, consent to entry on land which would
otherwise be a trespass. In the second place, it applies to consent to run the risk of accidental harm,
which would otherwise be actionable, as due to the negligence of*the person who caused it. On this
ground, a master is not liable for an injury inflicted on a servant who has undertaken the service
knowing the risks incidental thereto. So also, spectators at cricket or football or hockey matches or at
motor races are presumed to undertake the risk which may reasonably be expected to occur at such
meets.

Although consent is sometimes manifested by words, it may often be implied by conduct or by acts
which speak louder than words. As observed by one American author, the girl who makes no protest
at a proposal to kiss her in the moonlight may have mental reservations that it is without her consent,
but the man who kisses her is nonetheless protected.

Exceptions

The maxim has four important exceptions which may be summed up as under:

(i) No consent can legalise an unlawful act, e. g., a duel with sharp swords, where such a duel is
prohibited by law.

(ii) The maxim has no validity against an action based on a breach of statutory duty.
(iii) The maxim does not apply where the plaintiff has, under an exigency caused by the defendant's
wrongful misconduct, consciously and deliberately faced a risk, even of death, whether the person
endangered is one to whom he owes a duty of protection (as a member of his family) or is a mere
stranger to whom he owes no such special duty,

(iv) The maxim does not apply to cases of negligence. For instance, one could give consent to the risk
arising out of surgery, but such a person can never be deemed to give consent for such operations
being conducted negligently.

Illustrative cases where the maxim was applied

Hall v. Brooklands Auto-Racing Club : (1933) 1 K. B. 205

In this case, a racing car shot over the railing and killed two spectators. It was proved to the court that
this was the first time that such an accident took place. It was held that there was no negligence, and
that this type of danger to spectators was inherent in car racing. The defendants were, therefore, held
not liable.

Scalon v. Wedgor : 156 Moss. 462

In this American case, the plaintiffs were injured by the explosion of a bomb during a display of
fireworks conducted by the defendant in a square falling on a public highway. It was proved that the
defendant, in firing the bomb, had in fact exercised reasonable care. It was also shown that the
plaintiffs were present at the fireworks display as voluntary spectators, and were of ordinary
intelligence. The court held in favour of the defendant, observing that a voluntary spectator who is
merely present for the purpose of witnessing the display must be held to consent to it, and he suffers
no legal wrong if he is accidentally injured without any negligence on anyone's part.

Illustrative cases where the maxim was not applied Dann v. Hamilton : (1939) 1 K.B. 509

In this case, the plaintiff, knowing that the driver of a motorcar was under the influence of drink, and
that, consequently the chances of accident were thereby increased, chose to travel by that car,
although there was no compulsion of necessity or otherwise, to do so. She was injured in an accident
caused by the drunkenness of the driver, in which the driver was killed. In an action against the
personal representative of the driver, the defendant raised the defence of volenti non fit injuria. The
court held that, except perhaps in extreme cases, the maxim does not apply to the tort of negligence
and that the plaintiff was entitled to recover damages.

Haynes v. Harwood : (1935) 1 K.B. 146

The defendant's horses, negligently left unattended in a crowded street, bolted when a boy threw a
stone at them. The plaintiff, a constable on duty inside a police station, seeing that persons were in

grave danger, ran out, stopped the horses, and was severely injured in doing so. It was held, in the
circumstances, that he was entitled to recover. The defendant was negligent in keeping the carriage
unattended in the public street. Therefore, the defence of voluntarily incurring the risk would not be
open to him. He could have foreseen the consequences.

I. DE MINIMIS NON CURAT LEX

The law does not take trifling things into account. Nothing is a wrong which a person of ordinary
temper would not complain about. If A is driving along a dusty road at a good speed, and a little bit of
dust is thrown on B, a pedestrian, which does no harm to him, A would not be liable to B. This would
be a case of de minimis non curat lex. Thus, some injuries merit so little consideration of law that no
suit can be filed in such cases.

In other words, the Courts do not generally take trifling and immaterial matters into consideration,
except under peculiar circumstances. Thus a housewife who takes grains of wheat to a chakki (flour
mill) would not be allowed to complain that, in the process, a few scattered grains of wheat were
retained by the owner of the mill in his machine and not returned to her.

Likewise, in normal circumstances, the Courts would not take into account a fraction of a day. However,
in the case of a claim for demurrage of a ship, a fraction of a day would be counted as one full day
(Commercial S.S. Co. v. Boulton, L. R. 10 O. B. 346). However, in such a case, good drafting.,would
provide an answer, and explicitly lay down, for instance, that a certain sum would be payable per day
or any part thereof.

This maxim is also recognized in Section 95 of the Indian Penal Code, which provides that "Nothing is
an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to
cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain
of such harm."

Illustrative cases where the maxim was applied Coward v. Baddley : (1859) 4 H & N 478

In this case, a bystander touched a fireman on the arm to attract his attention to another part of a
building where a fire was raging. On a suit filed by the fireman against the bystander for battery, the
court held that the bystander was not liable for the tort of battery as this amounted to a trivial act.

Branson v. Didsbury : 12 A. & E. 631

Here, the court approved a practice followed by the Courts at Westminster, that where the amount
involved was less than twenty pounds, no re-trial would be allowed, at the instance of either party, on
the ground that the court's judgment was contrary to the evidence produced in court.

[Note ; In India also, S. 96 of the Civil Procedure Code provides that, unless a question of law is involved,
no appeal can be filed against a judgment in a suit decided by the Small Causes Court, if the subject-
matter of the original suit is less than Rs. 10,000.]

Illustrative cases where the maxim was not applied Holford v. Bailey : (1849) 18 L. J. Q. B. 109

In this case, X casts and draws a net in water where Y has an exclusive right of fishing. Now, whether
any fish is caught or not, X has committed a tort against Y, because the act, if repeated, would tend to
establish a claim or right to fish in that water. So even if the act in itself is trivial, yet this maxim cannot
be invoked.

Glanville v. Stacey : 6 B. & C. 543

In this case, a farmer followed a particular mode of harvesting barley, resulting in a considerable
amount of the barley being left scattered after the barley was bound into sheaves. On the question
whether tithe (-a payment made to the Parish calculated on the amount of crop harvested, which is
now abolished-), was payable on these rakings also, or whether such rakings could be ignored, the
court held that the tithe would be payable on such rakings, although the farmer had taken great care
to minimise the rakings as much as possible.

I. RES IPSA LOQUITOR

(The thing speaks for itself)

There is a general rule of evidence that a person has to produce proof before he can get the court's
judgment in his favour. Notwithstanding this general rule, in certain cases, the mere fact that a
particular accident has taken place may become prima facie evidence of negligence. Such cases are
referred to in Latin as res ipsa loquitor.

The connotation of this maxim has been explained thus: 1 Where the thing is shown to be under the
management of the defendant or his servants, and the accident is such, as in the ordinary course of
things, does not happen if those who have the management use proper care, it affords reasonable
evidence, in the absence of any explanation by the defendant, that the accident arose from want of
care.'

Thus, if a hammer falls out of a window, it could be a case of somebody's negligence, or even mischief.
But it is not a case of res ipsa loquitor, as it is not unusual for small things to fall out. But if a chair or a
cupboard or a table falls out of a window, surely such articles never fail, or should fall, like that. This
very fact is itself clear evidence of somebody's gross negligence. So also, if a man's dead body is found
on the railway lines near a level crossing, having been apparently run over by a

passing train, it is not a proper case for the application of this maxim. It cannot be presumed, in such
cases, that persons who cross railway lines are always careful.

The principal requirement for the application of the maxim is that the mere fact of the accident having
happened should tell its own story, and raise the inference of negligence, so as to establish a prima
facie case against the defendant. Thus, the following are the three essential requirements of the
application of the maxim :

(1) The thing causing the damage shpuld be under the control of the defendant or his servants.

(2) The accident must be such as would not, in the ordinary course of things, have happened
without negligence.

(3) There must be no evidence of the actual cause of the accident.

However, it is not enough for the plaintiff to prove that he has sustained an injury under circumstances
which may lead to a suspicion that there may have been negligence on the part of the defendant. Thus,
if injury is caused by a horse bolting in the street, the maxim would not apply, as horses do sometimes
become unmanageable from fright or some other cause, without any want of care or skill of the person
in charge. So also, if a car skids and runs into a person, the maxim cannot be invoked, as skidding can
result from many causes other than the negligence of the driver.

Illustrative cases where maxim was applied Byrne v. Boadle : (1863) 2 H. & C. 722

In this case, the plaintiff was passing along the street, and when he came near the defendant's shop,
was injured by the fall of a barrel of flour which rolled out of a window on the second floor. There was
no evidence on the part of the plaintiff as to how the accident happened, beyond the facts that, while
 on the road, he was knocked down by the barrel and was injured. It was held that the accident was a
prima facie case of negligence.

The Annot Lyle : 11 P. D. 114

Here, when a ship in motion collided with a ship which was anchored, it was held that such collision is
prima facie evidence of the negligence of the moving ship.

Illustrative cases where maxim was not applied Crisp v. Thomas : (1891) 63 L. T. R. 756

In this English case, the blackboard of a classroom slipped down and fell, injuring one of the stuoents.
It was held that the mere fall of the blackboard was not evidence of the teacher's negligence.

State of Punjab v. V.K, Kalia : A I R. 1969 P & H 172

In this case, a Superintendent of Police, while on an official tour, received injuries as a result of the
accident to the official jeep registered in his name and under the control of the constable driver. The
jeep was not, at that time, in a road-worthy condition. The cause of the accident was established to

be the worn out tyres and tubes and slippery roads during rainy season. Here, the court held that the
State could not be said to be negligent, through the constable or otherwise, when the plaintiff was
fully aware of the facts and circumstances. Hence this maxim was held not to be applicable.

I. REX NON POTEST PECCARE

(The King can do no wrong)

One of the most fundamental principles of the English Constitution is that the King can do no wrong.
In the early twentieth century, the proponent 0f the doctrine of sovereign immunity was Mr Justice
Holmes who (in Kawanakoa v. Polybank, (1903) 205 U.S. 349) observed as follows:

"A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the
logical and practical ground that there can be no legal right as against the authority that makes the law
on which the right depends." Today, the ground of exemption stated by Justice Holmes appears neither
logical nor practical, and total immunity of the State from tortuous liability is not acceptable in the
modern context. Therefore, this maxim must not be understood to mean that the king is above the
law, and that whatever he does is necessarily just and lawful.

English Law

In England, the Crown Proceedings Act, 1947, has diluted the efficacy of this maxim to a considerable
extent. Today, the Crown is made liable in all cases in which, if it were a private person of full age and
capacity, it would be liable on the ordinary principles of vicarious liability.

Indian Law

Under Article 361 of Constitution of India, the President, Governors . and Rajpramukhs of states are
not answerable to any court for the exercise and performance of the powers and duties of their office
or for any act done by them in the exercise of those powers and duties.

The legal position in India as regards the liability of the Government can be summed up as under:

(i) The Government is liable for the torts of its servants in the course of a transaction which any private
person can also engage in, e.g. trading, selling timber, etc.
(ii) The Government cannot, however, be sued in respect of acts done by its servants in the exercise of
its sovereign powers.

(iii) The Government is liable for injury to any person resulting from an act done by its servants, if such
act is done under colour of municipal law.

(iv) The Government is liable to restore property or money wrongfully obtained by it or its servants.

(v) The Government is, however, not liable for any wrong done by its servants in the course of their
official duty, unless the wrong was expressly authorised or ratified by it.

Illustrative cases where the maxim was applied State of M.P. v. Chironji Lai, AIR 1981 M. P. 65

In this case, whilst regulating a procession, the State Police made a lathi-charge to prevent a riot.
Unfortunately, the Respondent's property was badly damaged during this lathi-charge, and he filed a
suit against the State Government for damages. Rejecting his claim, the court held that the powers of
the State Police to regulate processions and quell riots are part of its sovereign functions, and, if in
doing so, the Respondent's property is damaged, the State Government is not liable to compensate
him.

Kasturilal v. State of U.P. : A.I.R. 1956 S. C. 1039

In this case, Police Officers of the State of U. P., in the exercise of their statutory powers, seized some
gold from Kasturilal. Owing to their negligence in keeping safe custody of the gold, it could not be
returned to Kasturilal. In a suit filed by him against the State for return of the gold or its value in cash,
the Supreme Court held that the State was not liable for the tortuous acts of its servants done in the
exercise of its sovereign power.

Illustrative cases where maxim was not applied State of Rajasthan v. Vidyawati : A.I.R. 1962 S. C. 933

In this case, the defendant was a driver employed on probation by the State of Rajasthan. While he
was driving a jeep car to a workshop for repairs, he knocked down a person who was injured, and later
died. His widow filed a suit for damages against the State of Rajasthan. The court held that the State
was liable for the tortuous acts of its servants like any other employer, on the ground that the maxim
" The king can do no wrong", had no place in the Constitution of India. It was observed that the
immunity of the Crown was based on a feudal concept not accepted or recognised in India.

Union of India v. Sugrabai : 70 B. L. R. 212

A military driver of a School of Artillery was transporting in a lorry, a machine for locating enemy guns.
Due to his rash and negligent driving, he knocked down A and killed him. In a suit filed against the
Government of India by A's widow, the Government pleaded that the driver was doing a duty in
discharge of the Government's sovereign power. Rejecting this contention, the court held that the
transport of this machine could even have been arranged through a private carrier. The Government
was, therefore, held liable for the tort of its driver.

I. RESPONDEAT SUPERIOR

(Let the principal be responsible)

 Every person is, no doubt, responsible for his own acts, but in certain circumstances, he also becomes
liable for wrongs committed by other persons. This is called vicarious liability, i. e., liability incurred for,
or instead of, another. Thus, a master is liable for the wrongful acts of his servants, and

a principal for the wrongful acts of his agent. The underlying principle on which such liability is fixed is
Respondent Superior : Let the superior be responsible.

If this were not so, a master would employ a servant to do a wrongful act, and a principal would
likewise employ an agent, and in both cases, the master or the principal would get away scot-free, and
the wronged person would be left without a remedy.

The two main reasons underlying the principle of this maxim are :

(vi) It would generally be very difficult to show that the master had actually authorised the servant to
commit the act in question.

(vii) Secondly, the servant would normally not be financially sound to bear the monetary liability, and a
rich master could employ a poor servant to commit wrongful acts.

Thus, to borrow a familiar example from English law, if the master is himself driving a carriage and
causes injury to a passerby on account of his want of skill, he is, of course, liable. So also, if instead of
driving it himself, he employs a servant to do it, the servant is only an instrument set in motion by the
master, and whatever the servant does would, in law, be regarded as the act of his master. Qui facit
per alium facit per se : He who does an act through another is deemed, in law, to do it himself.

Illustrative cases where the maxim was applied

Milner v. Great Northern Railway : (1884) 5 L. T. N. 367

A cloak-room clerk in the employment of a Railway Company had to take parcels of the passengers in
the cloak-room to the train as part of his duty. Whilst doing so one day, when he was coming back, he
ran against another porter, who in turn dashed against the ticket collector, and the ticket collector
collided with the plaintiff's wife, causing injuries which resulted in her death. When the plaintiff sued
the Railway Company, it was held that the Company was liable in damages, as, at the time of the
accident, the clerk was acting within the scope of his employment.

Lambert v. Great Eastern Railway : (1909) 2 K. B. 776

A Railway Company was empowered to employ special constables.

One such constable arrested a person for felony, without any reasonable cause. The court held that
the Railway Company was liable for the constable's act.

Illustrative cases where the maxim was not applied

Brinkly v, Farmers Elevator Mutual insurance Co. : 485 F. 2d 1283

In this case, the interesting issue before the court was whether, under the above maxim, a client is
liable for the conduct of his lawyer, which causes injury to a third party. The plaintiffs had sustained
serious injuries in a collision due to the negligence of their lawyer, Mr. A, who was returning home
after representing his client's case when the accident occurred. The client denied any vicarious liability
on his _ part. The court held that, even if it is argued that the relationship between the client and Mr.
A was one of agency at the time of the collision, he was not engaged in furtherance of the
client's business to such a degree that it could be said that the client had the right to direct and control
his physical conduct. Accordingly, it was held that the client was not vicariously liable.

Deatons Proprietary Ltd. v. Flew : (1949) 79 C. L. R. 370

In this case, X entered the defendant's hotel and spoke to a barmaid, who threw a glass of beer on his
face. According to X, he had asked her a polite question, but the bar-maid said that he had insulted
her. When the matter went to court, it was held that although the barmaid was liable, the owner of
the hotel was not liable, as the barmaid's act was an independent personal act, which was not
connected to the work which she was employed to perform.

Q. Explain : Actus non facit reum nisi mens sit rea. B.U. Nov. 2001 Apr. 2005 Nov. 2005 Apr. 2006

II. ACTUS NON FACIT REUM NISI MENS SIT REA

(The intent and the act must both concur to constitute the crime)

As a general rule, a guilty mind is an essential ingredient of an offence. The fundamental principle of
penal liability is that a mere act does not amount to g crime. It must be accompanied by a guilty mind,
as laid down by this Latin maxim. Therefore, if a person is to be punished under criminal law, it is
generally agreed that he must have not only done some criminal act, but he must have done such act
with a guilty mind (mens rea). No person can be punished merely because his act has led to some
mischievous result. The law must also inquire into the mental component of the person doing the act.

Although a guilty mind normally consists of either intention or negligence, even knowledge of the
consequences of an act can be a part of the guilty mind.

It is to be noted that mens rea should extend to all the three parts of an act, namely, the physical doing
or not doing, the circumstances, and the consequences. If the mens rea does not extend to any part
of the act, there will be no guilty mind behind the act.

Thus, in an English case, where a woman was charged with an attempt to commit suicide, and it was
shown that she was totally drunk at that time, Jervis C. J. observed : "If the prisoner was so drunk as
not to know what she was about, how can you say that she intended to destroy herself ?" (R. v.

Moore, 3 C. & K. 319)

Exceptions to the maxim

Though this is the general principle of penal liability, there may be some exceptional cases when the
law might impose absolute or strict liability, as in the case of liabilities created by some special statutes.
In such cases, the legislature can create an offence which may consist solely in doing an act, whatever
the intention or state of mind of the person acting may be.

Sir J. Stephens has been rather critical of this doctrine of mens rea. According to him, this doctrine
originated when criminal law dealt with offences which were not defined. However, today we have
come a long way from that stage and each crime has a precise definition. Hence, at a stage of criminal
law where every offence has been well defined, the general doctrine of mens rea is misleading and
also unnecessary. Similarly, J.D. Mayne, the learned author of Criminal Law in India,

has pointed out that since each offence in the Indian Penal Code is well-defined, all that the
prosecution has to do is to prove the ingredients of the particular offence {e.g., dishonest or fraudulent
 intention, and so on) in the relevant section of IPC. And hence this doctrine has little scope under the
Indian Penal Code.

Some exceptions where mens rea is not required in criminal law are :

(i) Mens rea is not required when it is difficult to prove it, where the penalties are petty fines and where
a statute has done away with the necessity of mens rea on the basis of expediency.

(ii) In cases of public nuisance. In the interest of public safety, strict liability may be imposed, and if one
causes public nuisance with or without a guilty mind, he must be punished.

(iii) In cases which are criminal in form, but are in fact only a summary mode of enforcing a civil right.

(iv) If a person violates a law without the knowledge of the law, the fact that he was not aware of the
rule of law and that he did not intend to violate it, is no defence; he would be liable although he had
no intention to commit an offence. This is so because 'Ignorance of the law is no excuse.'

Illustrative cases where the maxim was applied In Re. Tunda : (1950) 51. Cr. L. J. 402

In this case, the accused and the deceased were wrestlers. They arranged a bout in the course of which
the deceased fell as a result of a blow from the accused and broke his skull. Under the circumstances,
the court held that this was a case of an accident and there was no guilty intention on the part of the
accused. Therefore, he was not liable.

R. v. Tolson : 23 Q. B. D. 164

In this indictment for bigamy filed against a wife, she proved that she believed, on reasonable grounds,
that her husband was not alive. The court accepted the defence, as the crucial element of mens rea
was not present.

Illustrative cases where the maxim was not applied Parker v. Alder : (1899) 1 Q. B. 20

In this case, it was held that a person may be guilty of an offence of selling milk adulterated with water
under the Food and Drugs Act, although the water may have been added without his knowledge or
authority and without any default or negligence on his part or on the part of his servant or employee.

R. v. Prince : L. R. 2 C. C. R. 154

Here, the accused was charged with unlawfully taking an unmarried girl under sixteen out of the
possession, and against the will, of her father. His defence was that he believed that the girl was over
sixteen. The court rejected the defence, observing that, notwithstanding such belief, the

accused intended to do, and in fact did, an unlawful and immoral act, and not an innocent act, when
he took away the girl.

I. SALUS POPULI 3ST SUPREMA LEX

(Regard for the public welfare is the highest law)

This maxim is of prime importance and lays down that individual welfare must, in cases of necessity,
yield to the welfare of the community. Not only that, but when necessary, an individual's property and
liberty may be placed in jeopardy, or even sacrificed, for public good. As observed by Buller J. in Plate
Glass Co. v. Meredith (4 T. R. 794) :
"There are many cases in which individuals sustain an injury for which the law gives no action, as where
private houses are pulled down, or bulwarks are raised on property, for the preservation and defence
of the kingdom against the king's enemies."

Thus, a person would be excused by the law for committing a private injury for the public good, as
when a house is pulled down to stop a fire from spreading. As observed by Cockburn C. J., the ordinary
right of property must give way to considerations of protection and safety of the public, but

only to the extent to which it is absolutely necessary that private rights should be sacrificed for the
larger benefit of the people. (Greenwich v. Maudslay, L.R. 5 Q.B. 397)

It is also a settled principle of law that if a statute is capable of two constructions, one of which would
have the effect of destroying properties of a large number of citizens and the other would not have
such an effect, the courts would assume that the legislature had the latter in mind when the Act was
passed. (Chelsea Vestry v. King, 17 C.B.N.S. 625)

As far as penal laws are concerned, it is to be noted that before a man is subjected to a penalty, a clear
case should be made out for imposing a penalty on him. (Walsh v. Bishop of Lincoln, L.R. 10 C.P. 518)

Illustrative cases where the maxim was applied Taylor v. Whitehead : 2 Dougl. 745

It was held in this case that if a highway is under repairs, a person can lawfully go over the adjoining
private land of a person, since it is for the paramount public good, that there should be, at all times,
free passage through the highways for all subjects of the realm.

Edginton v. Swindon Borough Council : (1939) 1 K.B. 86

In this case, power was given to a local authority to erect bus shelters, and it was found to be practically
impossible to do so, without taking away the access of some persons from their properties to the
highway. The court held that no action would lie against the local authority, even though the Act had
not specified the exact locations of the shelters. When the legislature gave this power to the local
authority it would have known that such construction would interfere with private rights of some
persons. As the local authority had actea reasonably, no suit would lie against it.

Illustrative cases where the maxim was not applied R v. Dudley, Stephens : (1884) 14 Q.B.D. 173

Three seamen, along with a young boy of eighteen years, were travelling on a small boat after a
shipwreck. For many days, no food and water were available to them, and if this were to continue for
some more time, they would have died of hunger. So, two of the seamen killed the boy, so that they
could survive on his flesh. Later, they were rescued and brought to England, where they were tried for
murder. Their defence of necessity was ruled out and they were held guilty of murder, as the court
held that though self-preservation is a duty, self-sacrifice is a higher duty, and since all human lives are
equal in value, it is unjustifiable to take another's life for self-preservation.

Metropolitan Asylum Bd. v. Hill : 6 Appeal Cases 193

In this case, it was observed that when the legislature has given authority to do an act, but the terms
of the statute are not imperative, but permissive, and it is left to the discretion of the persons on whom
such powers are conferred, to determine whether or not to execute their general powers, the
inference is that the legislature intended that such discretion should be exercised in strict conformity
with private rights, and without committing any nuisance.
 I. QUOD AB INITIO NON VALET IN TRACTU TEMPORIS NON CONVALESCIT

(That which was originally void, does not, by lapse of time, become valid)

This maxim lays down a fundamental principle of law, applicable to all walks of life. As once remarked,
an apple that is rotten today will stay rotten tomorrow too.

To take one simple illustration from the law of contracts, an agreement executed by a minor who is,
say, seventeen years old is void under the Indian Contract Act. However, this agreement does not
become valid a year later, when he becomes eighteen. Upon attaining majority, he cannot also ratify
the earlier document, as there is nothing to ratify, the earlier document being void ab initio.

Exceptions

The law of prescription is, in a way, an exception to this maxim. Thus, under ancient Roman Law, if the
owner of a piece of land was absent from the country for twenty years or more, and another person
took possession of such land during this period, on the lapse of this period of twenty years, the other
person's possession would mature into ownership, and give him a good title. The Indian law relating
to prescription is to be found in the Limitation Act and the Indian Easements Act.

The law of ratification can also be looked upon as an exception to the maxim. Thus, if an agent does
an act which lies outside his authority, it is null and void in the eyes of law. But, if that act is
subsequently ratified by the principal, it becomes valid, and the law looks upon it as if it was done with
the prior authority of the principal.

Yet another exception peculiar to English law is in the form of the "doctrine of aider by verdict". When
an averment necessary to support the pleading is not properly stated, and the court comes to a finding
favourable to such verdict, the defective averment is cured by the verdict. This doctrine will not,
however, apply when the necessary averment is totally omitted. It is also to be noted that aider by
verdict applies only to criminal proceedings, and is of no significance in civil proceedings.

illustrative cases where the maxim was applied Doe Brammal v. Collinge : 7 C. B. 939

In this case, a bishop made a lease of certain lands for four lives in succession, which was contrary to
the law. One of the lives fell in, and later, the bishop died. The court held that the lease was not binding
on the bishop's successor, "for those things which have a bad beginning cannot be brought to a good
end".

Indrau Ramaswami v. Anthappa Chcttiar : (1906) 16 Mad. L. J. 224

A minor signed and delivered a promissory note in consideration of money received by him at that
time. On attaining the age of majority, he executed a second promissory note in settlement of the
earlier one, no fresh loan having been taken by him at that time. When sued on the second promissory
note, the Madras High Court held that the same was void for want of consideration. The argument
that the consideration supporting the second promissory note was the first promissory note was
rejected, as the first note was void in the eyes of law.

Illustrative cases where the maxim was not applied

R. v. Lord Newborough : L. R. 4 Q. B. 585

After special constables were paid by ^county treasurer, it was discovered that neither their
appointment nor me order for their payment was done in accordance with the provisions of the Special
Constables Act, 1831. When such payment was sought to be recovered, Lush J. held that since the
 order for payment was acted upon, and the money was also paid to them for the work they had put
in, the proceedings need not be re-opened.

Blake v. Foster : 8 T. R. 487

A leases out a piece of land to B, but the land does not belong to A. Later, A purchases the same plot
of land. Now, this becomes a good lease, and the relation of lessor and lessee will exist as perfectly
between A and B, as if A was actually the owner of the land when he leased it to B.

I. IGNORANTIA FACTI EXCUSAT : IGNORANTIA JURIS NON EXCUSAT

(Ignorance of fact excuses : Ignorance of law does not excuse)

These two maxims are recognised by almost every legal system. Ignorance may be either of fact or of
law. For instance, if an heir is ignorant of the death of his ancestor, he is ignorant of that fact; but, if
being aware of the death, and of his own relationship with the ancestor, he is nevertheless ignorant of
those rights that have thereby become vested in him, he is ignorant of the law.

Thus, generally, a mistake of fact is excused in law but a mistake of law is not. What then is to lie treated
as a mistake? It has to be noted that mere forgetfulness is not a mistake. A mistake is a slip made by
mischance and not by design. Even under English Common law, an honest and reasonable belief in the
existence of circumstances which would have made that act an innocent act, has always been a valid
defence.

The plea of mistake of fact as a defence has been recognised by the Indian Penal Code in Sections 76
and 79.

When mistake of fact is no defence

Though a mistake of fact is normally considered as a good defence, it is not a defence if the fact itself
is illegal. One cannot do an illegal act and then plead ignorance of a fact. Thus, a person cannot by
mistake of fact, shoot X and then plead in defence that he did not intend to kill X at all, but had mistaken
him for Y whom he actually wanted to eliminate from this world. The plea of mistake of fact cannot
operate in such a case, because killing a person is itself illegal and cannot be pleaded as a defence. But,
if a person, intending to kill a burglar in justifiable self-defence, mistakenly kills one of his neighbours,
he would not be guilty of an offence.

Why mistake of law is not an excuse

The basic reason for not excusing a mistake or-ignorance of law is that every man is presumed to know
the law of the land. If mistake of law was to be allowed as a defence, it would be urged in almost every
case and lead to absurd results.

This maxim is of great importance in the law of crimes. When a person commits a wrong, it is not open
for him to say that he did not know that it was an offence, and that, but for his ignorance of the law,
he would not have committed it.

The three main reasons underlying this rule are:

(1) Firstly, the law is definite. It is something which can be known and it is the duty of every man to know
at least that part which most concerns him. Even if he does not know a specific point of law, it is
always open to him to consult a lawyer.
(2) Secondly, it would be very difficult for a court to decide whether a given person is really ignorant or
is only pretending to be ignorant.

(3) Lastly, the law is generally based on* natural justice and common-sense. So, even if he is not aware
that he is breaking the law, a sane man would know that he is violating a rule of right.

When mistake of law is excused

However, the above rule has its own limitations. Modern systems of law use language which is both
technical and complex, and it would be impossible for everyone to know all the laws of the land.

Thus, this maxim must be understood in its qualified, and not in an absolute, sense, as will be clear
from the following three illustrations :

1. It was held in Re Barry & Staines Linoleum Ltd. (1934 1 Ch. 227), that ignorance of some of the
provisions of the Companies Act may amount to inadvertence and the person concerned may be
reasonably excused.

2. Section 78 of Indian Penal Code states that total ignorance of the law is no excuse, but a mistaken
interpretation of the law can be considered a good excuse.

3. A mistake of foreign law is considered as a mistake of fact, because though everyone is supposed to
know the law of his own country, he cannot be expected to know the law of other countries. This is,
however, not so in the field of criminal law.

Illustrative cases where the maxim was applied Higgs v. Scott : 7 C. B. 63

A, a tenant of B received a notice from C, a mortgagee of B's property, that his interest was in arrears,
and requiring payment to C of the rent due to B. Notwithstanding this notice, A paid the rent to B and
afterwards was compelled by distress to pay it again to C. It was held that the money had been paid to
B with full knowledge of the facts, but on account of ignorance of the law, and hence could not be
recovered.

Tolson's case : (1889) 23 Q. B. 168

Mrs. Tolson, who had been deserted by her husband, and had married again within seven years of
desertion, was held not guilty of the offence of bigamy, because she had believed, on reasonable
grounds, that her husband had died (which was a mistake of fact), and her act of getting married could
not be regarded as an act which was illegal per se.

Illustrative cases where the maxim was not applied Prince's case (1875) L. R. 2 C. C. R. 15

It was held, in this case, that a person who kidnaps a girl under the legal age of consent (i.e., eighteen
years) is guilty of kidnapping, even though the girl might have urged the accused to take her away from
her parents, and she lied about her age and even appeared to be more than eighteen. The accused
was held guilty, as the girl's consent was immaterial, she being a minor. In such cases, the accused
must take the risk of having involved himself with a minor, which is an act

mala in se (bad in itself). Thus, in such case^, ignorance of fact (in this case, the fact being the age of
the girl) does not excuse.

Consolidated Co. v. Curtis and Son : (1982) 1 Q. B. 495

The owner of certain furniture assigned it by a bill of sale to the plaintiff. Subsequently, he employed
the defendants, a firm of auctioneers, to sell it by auction. The defendants, who had no notice of the
bill of sale, accordingly sold the furniture and delivered it to the purchaser. The defendants pleaded
that they had acted under a mistake as to the true ownership of the property, but the court held that
the mistake of fact was no excuse for interfering with the plaintiff's property and the defendants were
liable for the value of the property wrongly sold and delivered.

III. NULLUS COMMODUM CAPERE POTEST DE INJURIA SUA PROPRIA

(No man can take advantage of his own wrong)

It is a well-recognised maxim of law that no man can take advantage of his own wrong, and this maxim,
which is based on elementary principles, is fully recognized in every branch of the law. As observed by
Lord Hatherley, "a wrong-doer ought not to be permitted to make a profit out of his own wrong". This
rule has been used by the courts to promote justice in various, and often dissimilar, situations.

The doctrine of estoppel is also based on this maxim. For instance, if A, the owner of goods, by his
conduct, gives a wrong impression to the world at large, that B is his agent, he cannot, when B sells A's
goods as agent, challenge the sale on the ground that B was not, in fact, his agent. Similarly, if at the
time of accepting a bill of exchange, the acceptor knew that the payee was a fictitious person, he
cannot later take advantage of his own fraud and set up this defence.

It is also a sound principle of law that he who prevents a thing from being done cannot complain of
the non-performance by the other side, for which he himself is responsible. Thus, if A has agreed to
paint a house for S, under a contract where B has to supply the scaffolding, if B does not supply such
scaffolding, A cannot be made liable for a breach of his contract to paint the house.

As observed by Lord Redesdale, "At law, fraud destroys rights. If I mix my corn with another's, he takes
all; but if I induce another to mix his corn with mine; I cannot then insist on having the whole." So also,
under the Indian Contract Act, if A makes a bailment of his corn to 6, the latter is obliged, under the
law, to return that corn to A. So, if he mixes it up with his own inferior corn, he will have to compensate
A for the value of A's corn.

Illustrative cases where the maxim was applied Trueman v. Lader : 11 A. & E. 589

In this case, A executed an instrument under an assumed name. When sued by the other party, he
sought to deny his liability on the ground that he could not, in law, be bound by such an instrument.
Rejecting this argument, the court held that he was bound by this instrument in the same manner as
if A had executed it in his true name.

Harris v. Truman : An agent represented to his principal that some barley lying on the agent's premises
had been bought by him for his principal, and thereby induced the principal to make a payment to him
to cover the price of such barley. In fact, only a part of the barley lying on the agent's premises had
been bought on behalf of the principal, but the agent had mixed it up with his own barley, in a way
that the two could not be separated or distinguished. When the agent became bankrupt, the trustee-
in-bankruptcy claimed to hold tho entire barley as belonging to the agent, on the ground that the
portion actually bought for the principal could not be identified. The court held that he could not do
so, — as no man can take advantage of his own wrong.

I. ACTA EXTERIORA INDICANT INTERIORA SECRETA

(Acts indicate the intention)

It is said that, in some cases, the law judges a man's previous intention by his subsequent acts. In a
famous case, it was observed that if a man abuses an authority given to him by the law, he becomes a
trespasser ab initio, but that if he abused an authority given to him by the other party, he does not.
The reason given for this distinction is that, where a general license is given by the law, the law judges,
by the subsequent acts, with what intent the original act was done. But, where the party himself gives
a license, he cannot, for any subsequent cause, punish that which is done by his own license, in the
latter case, therefore, the abuse alone is punishable.

To take a simple example, the law gives authority to the owner of land to distrain cattle which enter
into his property and to detain them until he is compensated for the loss caused to him and his
property by such cattle. However, if the landowner, after distraining, kills the cattle, the law presumes
that he distrained the cattle for the specific purpose of committing the particular injury. In other words,
the subsequent illegality shows the original intention of the person.

In this connection, Broom (in Broom's Legal Maxims) observes as follows :

"With respect to the proposition that the abuse of a license given by the party does not make a man
trespasser ab initio, it may be noticed, that if a person wrongfully takes my goods and places them on
his own close, I may enter for the purpose of reception, and that the reason given is that I have an
implied license from the wrong-doer. For the like reason, if my neighbour has wrongfully placed goods
upon my close, I may enter his for the purpose of there depositing them for his use.

On the other hand, the mere fact that my goods are upon my neighbour's land does not justify my
entry thereon to recover them; nor does the fact that they were placed there by a trespasser who had
wrongfully taken them from me."

Illustrative cases where the maxim was applied Elias v. Pasmore : (1934) 2 K. B. 164

In order to effect the arrest of a person, the defendant who was a Police Officer, entered the plaintiff's
premises. Whilst there, he seized and carried away documents found on the premises. Amongst the
documents, there were some which constituted evidence on the trial of the person who was arrested,
but there were others which did not so constitute, and these were subsequently returned. In an action
for trespass, it was held that the defendant was trespasser ab initio only as regards documents that
were seized and returned, — but was not liable for any damages on the- oremises for the purpose of
the arrest.

Price v. Woodhouse : 1 Exch. 559

In this case, it was held that both, the entry by the lord of the manor to seize a beast and the seizure,
were rendered unlawful, because of the wrongful seizure of an additional beast. As the court observed,
"to make the entry good, it must be good with reference to the seizure".

Illustrative cases where the maxim was not applied

Vaux v. Newman (The Six Carpenters' Case ) : (1610) 1 L. C. 134

In this case, the proprietor of an inn brought an action for trespass against six carpenters, who having
entered the inn, ordered a quart of wine, drank it, and refused to pay for it. The question was, whether,
in these circumstances, the failure to pay for the wine could be treated as misfeasance, which would
make their original entry unlawful as a trespass. Answering the question in the negative, the court
observed that "not doing cannot make the party who has authority by the law, a trespasser ab initio,
because not doing is no trespass. So, in the case at the Bar, for the denying to pay for it is no trespass,
and therefore, they cannot be trespassers ab initio."

Winterbourne v. Morgan : 11 East 395

In this case, it was observed that the Distress for Rent Act provides . that where a distress is made for
rent justly due, and an irregular or unlawful act is afterwards done, the distress is not deemed to be
unlawful, and the party distraining cannot be looked upon as a trespasser ab initio, — although
compensation for the special damage can be recovered from him by filing an action against him.

I. DOMUS SUA CUIQUE EST TUTISSIMUM REFUGIUM

(Every man's house is his castle)

The house of every one, however small or humble it may be, is for him his castle, not only for his
defence against injury and violence, but also for his repose and quiet enjoyment. So, although human
life is a precious thing in the eyes of law, yet if thieves come to a man's house to rob or murder him,
and he or, his servants kill any of the thieves in defence of himself and his house, this will not be a
crime.

Accordingly, if a person attempts to break and enter a dwelling-house in the night-time, or attempts
to break open a house in the daytime with intent to rob, and he is killed in the attempt, the slayer

will not be punished, for such homicide is justifiable. And in such cases, not only the owner whose
person or property is thus attacked, but also his servants and the members of his family, or even
strangers who are present at the time, are equally justified in killing the assailant. In general, however,
in order that a case may fall within this rule, the intent to commit the crime above mentioned must be
clearly manifested by the offender. Even a violent and unlawful attempt to take from a man possession
of his house may be resisted with as great force as would be permissible in defence of his person,
although there is no intention to commit one of the above offences.

This right of private defence of property is, in India, conferred by S. 98 of the Indian Penal Code, which
allows every person to protect his property against theft, robbery, mischief, criminal trespass, etc.

However, this rule will not be allowed to be used to evade the law. So, if a defendant escapes from
arrest, the sheriff may, after demanding admission, and on the defendant refusing such demand, break
open either his own house or that of a stranger for the purpose of retaking him; and if an officer or
bailiff, who has lawfully entered a house to execute a process, is forcibly ejected, or locked in, he may
break open the outer door to re-enter the house, or to quit it, as the case may be. In such cases, a
request to re-open the door may not even be necessary.

Moreover, although a man's house is surely a castle for himself, it is not one for fugitives or persons
who flee to his house, or for the goods of any other person which are brought into his house to prevent
a lawful execution, or to escape the ordinary process of the law. In such cases, after requesting that
the house be opened, the sheriff or the police officer, or anyone authorised by law, may break open
the house.

Illustrative cases in which the maxim was applied r Smith v. Shirley : 3 C. B. 142

In this case, the court held that mere entry by an open door, by an officer of law,' into a man's house
on suspicion of felony, but without a warrant, is not justified by a plea which does not show that the
defendant had reason to believe that the suspected person was there, and entered for the purpose of
apprehending him.

Burdett v. Abbot : 14 East 1

The importance of this maxim was highlighted in this case, where the court observed as under :

"Nothing is more certain than that in the ordinary cases of the execution of civil process between
subject and subject, no person is warranted in breaking open the outer door in order to execute such
process; the law values the private repose and security of every man in his own house, which it
considers as his castle, beyond the civil satisfaction of a creditor."

Cases where the maxim does not apply

Statutory provisions relating to search and seizure constitute important exceptions to this maxim.

Thus, S. 132 of the Income-tax Act empowers the tax authorities to enter and search any place or
building, and even break open the door of any lock, if the keys are not available. Likewise, under S.

37 of the Foreign Exchange Management Act, the Directorate of Enforcement and certain other officers
have been conferred the same powers as are conferred on income-tax authorities.

Similarly, if Customs Officers have reason to believe that any goods which are liable to confiscation are
secreted in any place, they may, under the Customs Act, conduct a search of that place.

S. 93 of the Criminal Procedure Code also empowers the court to issue search warrants and S. 165 of
that Code confers powers on Police Officers to conduct searches in certain cases.

I. NEMO EST HAERES VIVENTIS

(No one can be heir during the life of his ancestor)

It is not only law, but also sound common sense, that no inheritance can vest, nor could any person be
the heir of another, till the ancestor is dead. Before the happening of this event, i.e., the death of the
ancestor, he is only an heir-apparent or heir-presumptive, a description that can be applied to the son
of a man, who has no wife, daughter, etc. In the life-time of the father, the son cannot claim to be the
heir of the property of the father. When the father dies, his claim would be limited only to that property
of which his father was the owner at the time of his death. Property which the father had gifted away
in his lifetime, or which he has willed to some other person under a valid will, would, naturally, not go
to the son.

S. 6 of the Transfer of Property Act recognises this maxim when it lays down that the chance of an heir-
apparent succeeding to his estate cannot be transferred. Likewise, the chance of a relation obtaining
a legacy on the death of the ancestor cannot be transferred. The technical expression for such a
"chance" is spes successionis, i. e., the hope of succession. Such a chance does not amount to
"property" under the said Act, and even if it is attempted to be transferred, such "transfer" is totally
void.

Illustrative cases where the maxim was applied Doe Winter v. Peratt : 7 Scott N. R. 1

Under a will, a piece of land was given to A for life, and the remainder to the heirs of B. If A dies before
B, at the time of A's death, it cannot be said that B has any "heirs", as B is very much alive. Therefore,
the remainder under the will would fail.
However, in this case, if B had died before A, B would have heirs at the time of A's death, and the land
would vest in B's heirs immediately on the death of A.

Ram Nath v. Nagina

In this case, a Hindu of advanced age made a "will", dividing his property amongst his sons. The "will"
ended with the following clause : "If I, at any time, come back from pilgrimage, and find
mismanagement or the character of anyone bad, then, I shall have the power to cancel this will."

The court held that the effect of this clause was to make the document a family arrangement, and not
a "will". In a true will, the disposal of the testator's property can take place only after his death.

Illustrative pases where the maxim was not applied

In Re Hooper : (1936) Ch. 442

In this case, a testator gave his property to his wife for life, and after her death, "to such person as, at
the decease of my wife, shall be my heir", and the testator's wife predeceased him. In the
circumstances the court held that the property went to the person who would have been the testator's
heir if he had died at the time of his wife's death, — for the law leans against intestacy.

Lightfoot v. Maybery : (1914) A. C. 782

In this case, it was held that the maxim under consideration has no place where the testator uses the
word "heir", not in its strict legal sense, but in a popular sense of giving a child, even during the life of
his parent. If "the plain and undeniable intention" of the grantor, who knows of the existence of the
parent, is that the devise to the child shall take effect during the life of the parent, this "popular idea
of heirship" would be given effect to.

I. LEGES POSTERIORES PRIORES CONTRARIAS ABROGANT

(Later laws repeal earlier laws inconsistent therewith) t

The legislature is the supreme law-making authority in the State, and by definition, it has not only the
power to make laws, but also to amend and abrogate the existing laws. To say that one Parliament can,
by its laws, bind future Parliaments, would be a total negation of this basic principle. Thus, if an Act of
Parliament contains a clause that it would not be lawful for Parliament to repeal that Act for the next
seven years, such a clause (technically called "clausula derogrataria’) would be void, and the Act could
be repealed at any time, even within the next seven years.

The principle embodied in this maxim is of universal application. Thus, the English Parliament can
amend, alter or repeal an Act in any of its sittings, including the same session in which such Act was
passed. Likewise, the Indian Parliament also enjoys the same power. The only limitation of such power
in India is that the Parliament cannot alter the basic structure or framework of the Constitution of
India. (.Kesavananda Bharti v. State of Kerala, AIR 1973 S. C. 1461)

From what is stated above, it follows that an earlier Act must give way to a later Act, if the two cannot
be reconciled. Moreover, one Act can repeal another by express words or even by necessary
implication. However, a repeal by implication is not favoured by the law, and must not be imputed to
the legislature unless absolutely necessary. (Dobbs v. Gr. Junction Waterworks Co., 9 Q.B.D. 151)
But, if two Acts are merely affirmative, and their substance is such that both can stand together, the
later Act would not repeal the earlier one, and both would have concurrent efficacy. (Foster's Case, 11
Rep. 56)

The principle underlying this maxim is also reflected in S. 88 of the Indian Succession Act, which lays
down that if two clauses of a will cannot be reconciled, it is the later clause that will prevail. So, if at
the commencement of his will, A gives his house to B, and towards the end of the will, he states that
his house (i.e., the same house) is to be sold, and the sales proceeds thereof be invested for the benefit
of C, the later clause will prevail, and C, and not B, will be the rightful legatee of the house under A's
will.

Illustrative cases where maxim was applied Fortescue v. St. Matthew : (1891) 2 Q. B. 170

In this case, it was held that when an Act lays down the quality of an offence or prescribes a particular
punishment for it, and a later Act alters the quality of the offence or prescribes some other punishment
for it, the earlier Act is impliedly repealed by the later Act.

R. v. J. J. of Middlesex : 2 B. & Ad. 818

In this case, the court held that if two Acts are passed in the same session of Parliament, and are
repugnant or contradictory to each other, that Act which last received the royal assent (or, the
President's assent in India) prevails, and has the effect of repealing the other Act, either wholly or pro
tanto.

Illustrative cases where maxim was not applied

R. v. St. Edmund's Salisbury : 2 Q. B. 72

An Act of Parliament provided that a particular offence was triable in Court X. Later, another Act was
passed, which made the same offence triable in Court Y, without adding any express words such as "...
and not elsewhere". It was held that in the circumstances, the earlier Act was not repealed, and Court
X did not lose its jurisdiction. In the circumstances, the offence could be tried by either court.

Daw v. Metropolitan Board : 12 C. B. N. S. 161

In this case, when a special Act was already in force, a general Act was passed by the legislature. The
question before the court was whether the earlier (special) Act stood repealed by the later (general)
Act. The court held that special Acts are not repealed by general Acts, — unless there is an express
reference to the previous legislation, or a necessary inconsistency, if both the Acts stood together. It
was, therefore, held that the earlier Act was not repealed.

XXVIII. EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS

(The express mention of one thing implies the exclusion of another)

This maxim, which incorporates one of the basic principles of legal interpretation, lays down that
mention of one or more things of a particular class silently excludes all the other members of that
class. The maxim is sometimes also stated as : Expressum facit cessare taciturn.

Thus, if in a contract, one finds certain express stipulations, such stipulations should not be extended
by implication. It is to be presumed that since the parties have incorporated some stipulations, they
have expressed all the conditions by which they have agreed to bind themselves under that
instrument. So, if A and B enter into a contract, A should not be allowed to prove that A meant
something different from what is stated in the contract, and that B also agreed to it. If such proof were
to be allowed, in the words of Pollock, "every written document would be at the mercy of witnesses,
who might be called to swear anything". So, when there is an express contract between the parties,
none can be implied.

This maxim is, however, to be applied with a great degree of caution. When general words are used in
an instrument, at the outset, it must be determined if such words were intended to include other
things which are not specifically mentioned, or to exclude such things, in which case the present maxim
can be applied.

Illustrative cases where the maxim was applied Dickson v. Zizinia : 10 C. B. 602

!n this case, the seller of a horse warranted it "to be sound". The buyer discovered that the horse,
though sound, was not fit for the purpose of carrying a lady, and sued the seller. The court held that
the present maxim applied in this case, and the seller was, therefore, not liable.

Mathew v. Blackmore : 1 H. & N. 762

In this case, a mortgage was created on dwelling houses, foundries and other premises, with "all
boilers, bells and other fixtures in the said dwelling houses and the brew-houses". On the question of
whether the fixtures of the foundries were also covered by the mortgage, the court answered the
question in the negative, observing that the fixtures falling under the mortgage would only be those
which were in the dwelling houses and the brew-houses, as expressly stated in the document. The
fixtures in the foundries would not thus be part of the mortgage.

Morgan v. Crawshay : L. R. 5 H. L. 304

Where the Poor Relief Act provided that every occupier of lands, houses and coal mines would have
to pay a tax, it was held by the House of Lords, that as coal mines alone were mentioned in the Act,
iron mines would not have to pay this tax.

Illustrative cases where the maxim was not applied Cripps v. Gee : 4 Bro. C. C. 472

In this case, it was held that, if because of fraud or mistake, the written document expresses something
other than what was, in fact, agreed to between the parties, oral evidence can be given of the real
agreement between the parties.

Illustrative listing in a statute

If the language of an Act cover many different cases or situations, whereof only some are expressly
mentioned by way of example, the maxim cannot be applied to exclude others of a similar nature,
which are not mentioned in the Act. Thus, the definition of the term "unfair trade practice" under the
Consumer Protection Act, 1986, runs as under :

"Unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or
supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive
practice, including any of the following practices, namely,—

" This is followed by a long list of different types of trade practices. Now, from the above language, it
is clear that the list of such trade practices is merely illustrative, and not exhaustive, and a trade
practice which is not specifically enumerated in the list can nevertheless amount to an unfair trade
practice.

Similarly, when defining 'fraud", the Indian Contract Act lays down that "Fraud means and includes

..." This language shows that the categories of fraud which follow are merely illustrative, and not
exhaustive, and that there may be other types of fraud which have not been enumerated.

XXVIII. VIGILANTIBUS, NON DORMIENTIBUS, JURA SUBVENIUNT

(The law assists those who are vigilant and not those who sleep over their rights)

In the olden days, there was a system of Equity Courts (or Chancery Courts, as they were sometimes
called), which ran parallel to the law courts. The statutes of limitation were not applicable to Equity
Courts, as these were courts of conscience, deciding matters, not on the basis of Acts and statutes, but
on the basis of equity, justice and good conscience. The Latin maxim under consideration is one of the
twelve maxims which form the basis of Equity, its literal translation being "Equity aids the vigilant and
not the indolent".

What this maxim calls for is reasonable diligence. If the plaintiff is careless or negligent for a long and
unreasonable time, the law refuses to lend him any assistance. Thus, this doctrine works as "a
punishment for the negligence of the creditor". Hence, in order to enforce a claim in a court of equity,
the plaintiff must approach the court as quickly as possible and there should be no delay on his part.
Even a comparatively short period of delay goes against the plaintiff in equity, and he must
satisfactorily account for the same, because equity considers delay to be evidence of waiver of the
right of action, and sometimes a release of the right itself.

Delay which prevents a party from obtaining an equitable remedy is technically called "laches". Where
a person is guilty of laches, he loses a remedy which would otherwise have been available to him.
Laches is not, however, constituted by mere delay, but only by delay of such a length, or in such
circumstances, or accompanied by such conduct, as either to raise the inference that the plaintiff has
waived his right or to affect the position of the defendant and to put him in a situation in which it
would not be reasonable to put him if the remedy was afterwards to be asserted. ( Blake v. Gale, 32
Ch. D. 581) Exceptions

In the first place, the maxim would not apply when the period of limitation is fixed by law. In India, the
provisions of the Limitation Act would apply and the courts are bound by its provisions.

However, as regards matters wherein the said Act does not apply, as for instance, filing of writ petitions,
undue deiay would be fatal, and to that extent, the maxim can be to apply.

Secondly, the maxim would not apply when the defendant is guilty of fraud, as it has always beets a
principle of equity that "no length of time is a bar to relief in cases of fraud, where there has been no
laches on the part of the person defrauded".

Lastly, it is well-accepted that "time does not run against a party who is unable to act". If, for instance,
a loan is repayable after ten years, the limitation period will begin only when the ten years have passed.
In such circumstances, it cannot be said that the creditor could have sued during this period of ten
years.
Illustrative cases where the maxim has been applied Allcard v. Skinner : (1887) Ch. D. 145

In this leading English case, a young girl joined a Sisterhood at the age of 27, and bound herself to
observe the triple vows of chastity, poverty and obedience. The rule of obedience required her to
regard the voice of Mother Superior as the voice of God. Moreover, no sister was allowed to take any
independent advice from an outsider without the leave of Mother Superior. When the girl's father
died, leaving considerable money and shares, she made a gift thereof to the sisterhood, and also made
a will bequeathing everything to the sisterhood on her death. In 1879, she left the sisterhood, and
revoked her will soon thereafter. In 1885, she filed a suit to revoke the gift (which she had made to the
sisterhood at the time of her father's death) on the ground that the transaction was vitiated by undue
influence, and therefore, voidable at her option. The Court came to the conclusion that religious
influence is indeed a strong form of undue influence. However, in the present case, since six years had
elapsed between the date of her leaving the sisterhood and the date of filing the suit, the Court held,
by a majority (Cotton, L.J. dissenting) that her claim was barred by laches.

Cases relating to mortgages This maxim has been applied :

(i) to a claim to redeem a mortgage (Weld v. Petre); and

(ii) a claim to foreclose a mortgage ( Brooks v. Mukleston).

In such cases, delay is fatal to a claim for equitable relief, not only because it is a reflection of the
negligence of the plaintiff, but also because it would result in the destruction or loss of valuable
evidence on which the defendant could have relied.

Illustrative cases where the maxim was not applied Hemp v. Garland : 4 Q. B. 519

In this case, it was held that where a debt is repayable on the happening of a certain event, time begins
to run only on the happening of that event, and no delay can be imputed to the creditor before the
event has occurred.

Musurus Bey v. Gadban : 1894 2 Q. B. 352

Here, the court held that if a person incurs a debt whilst he is immune from legal process, as for
instance, because he is an ambassador of a foreign country, the period of limitation does not begin to
run until such immunity has ceased, i.e., when he has ceased to be ambassador.

.In such cases, however, once the statute has begun to run, the plaintiff cannot plead subsequent
disability.

LAW REPORTS & MAGAZINES

This Chapter contains a discussion on law reports and magazines, under the following five heads :

A. Law Reports

B. Law Magazines

C. Explanation of citations

D. Search for case law

E. Abbreviations of Law Reports.

 . LAW REPORTS

Although legislation still remains the main source of law in most countries of the world, precedents or
judge-made law is now emerging as an equally important, if not more important, source of law. The
principle that judges do not make the law, but only declare it, is now largely a myth, all the more so in
fields where legislation is at its minimum, as for instance, the law of torts or the law relating to Hindu
undivided families.

The law laid down by higher courts is binding on the lower courts. Under Art. 141 of the Constitution
of India, the law declared by the Supreme Court is binding on all courts within the territory of India. If
this be so, some interesting questions arise. How are lower courts informed about the numerous
judgments of the higher courts ? Likewise, how are all courts in India made aware of all the
pronouncements of the Supreme Court ? The answer is simple : Law Reports.

A law report is a compilation of judgments of higher courts, published at regular intervals. All decisions
of a particular court are not mechanically reported. Only those that involve an important interpretation
of the law or lay down an important or new principle of law, find a place in the law reports.

Broadly speaking, law reports are of two types:

Official law reports and Private law reports.

Official law reports are the official publications of the Government. Thus, the Supreme Court Reports
(SCR) is an official report, published under the authority of the Supreme Court by the Controller of
Publications, Delhi. On the other hand, the All India Reporter (AIR) is a private publication of the All
India Reporter Pvt. Ltd., Nagpur.

Again, there are some general reports like AIR, which publish judgements in all fields of law. Specialized
law reports, on the other hand, report judgments only in a particular field of law. Thus, the Criminal
Law Journal reports judgments in criminal matters, the Income-tax Reports contain tax cases, and
Company Cases has judgments in the field of company law and related matters.

Most law reports are published on a monthly basis. However, there are some that are published every
fortnight (as for instance, Unreported Judgments), and some that come out every week (as for
instance, Supreme Court Cases (SCC) and the Weekly Law Reporter).

Most law reports follow a standard format. Before the full text of the judgment appears, one finds the
citation, the name of the court, the names of the parties and their pleaders, the case number, the
names of the Judges and the date of the judgment. These details are followed by the head-notes
prepared by the law reporter, which give a synopsis of the judgment with cross-references to the
relevant paragraphs of the text of the judgment. Cases which were referred to, followed, distinguished
or over-ruled are generally shown along with their citations. This is followed by the name of the Judge
who has dictated the judgment, followed by the full text of the judgment of the court.

Mr. M. C. Setalvad, the then Attorney General of India, once formulated the following guidelines for
reporting a case, namely, —

(i) The report must contain proper head-notes. The head-notes must be accurate and must contain the
salient points raised and decided in the case.

(ii) Judgments dealing with construction of documents may be omitted, except when they state definite
rules or principles of law which are aids to construction.
(iii) Minority judgments should not be omitted, as the dissenting view is equally important.

(iv) Quotations in a judgment are important too, and hence, they should not be omitted.

(v) Judgments of a single Judge should also be reported, if they contain binding principles of law.

(1) All India Reporter

The All India Reporter heads the list of the most popular and the most widely used law reporters in
India. Published monthly by All India Reporter Private Ltd. from Nagpur, it was founded in 1922 by the
late Mr. V. V. Chitale. Its current Chief Editor is Mr. V. R. Manohar, Advocate. Familiarly referred to as
"AIR" by lawyers and judges alike, this reporter is a comprehensive journal covering recent judgments
from all branches of law, — civil, criminal, revenue, etc.

The AIR, sometimes fondly described as a "treasure house of Indian case law", reports the latest cases
decided by the Supreme Court as well as all the High Courts of India. These cases cover all central and
local (State) Acts.

Perhaps the most interesting feature of the AIR is the head-notes which precede every judgment. A
lawyer can always refer to these meticulously prepared head-notes for a quick gist of the entire
judgment. One gets a fast glimpse of the ratio of the case, along with references to the relevant
paragraphs of the judgment where such proposition of law is discussed by the Judge. This feature is
extremely useful when a judgment runs into several pages — sometimes hundreds of pages — and a
quick review thereof is urgently required. Cases referred to in the body of the judgments are also
separately listed after the head-notes, ' followed by the names of the Advocates representing the
parties.

Another prominent feature of the AIR is its Journal Section, where one finds interesting and
enlightening articles on various topics of legal interest. In yet another section, recent Acts passed by
the Parliament are published, so that Judges and lawyers alike can keep themselves abreast with the
latest legislation in the country. The extensive coverage and quick reporting of recent judgments have
made this reporter one of the most familiar names in the legal fraternity. From February 2003 onwards,
the AIR includes a Digest of the latest cases of the Supreme Court of India, which has remarkably
enhanced the utility of this reporter.

Almost all textbooks on Indian law make copious references to cases with reference to citations from
the AIR. It is difficult to imagine a legal commentary in India without liberal references to the AIR.

Mode of citation: AIR (Name) 2004 (Year) SC (Court) 102 (Page)

Note: The above citation would appear as AIR 2004 SC 102. The line below has been added (in this
citation and others that follow) only to explain to the reader, the various components of this citation,
and would, naturally, not appear in the actual citation.

Q. Write a note on : Supreme Court Cases B.U. Apr. 2004 Apr. 2006

2. Supreme Court Cases

Familiarly known as SCC, this law reporter is published on a weekly basis from Lucknow. A publication
of the Eastern Book Co., the reporter includes reportable as well as non-reportable judgments of the
Supreme Court. Currently, the Editors of this law reporter are Mr. Surendra Malik and Mr. P L. Malik.
As this is an exhaustive law reporter, it is published in about eight volumes every year, each volume
running into approximately 800 pages.

Its prompt and authentic reporting, its maximum coverage and its analytical head-notes make SCC
quite user-friendly. The head-notes give a fair gist of the case that follows, so that time is not wasted
on perusing a lengthy judgment, in case the reader feels that it is not relevant for his purpose.

The Journal Section of this reporter contains interesting and thought-provoking articles on topics of
current interest in the legal field. Like most other law reporters, SCC has a list of reported cases as also
a useful Subject Index. In a section called "Notable Excerpts", it lists interesting quotations from
judgments in recently decided cases. The Supreme Court Cases (Cri) contains useful judgments of the
Supreme Court in criminal matters.

The full text of Supreme Court Cases is now also available on a CD-Rom, and updates can be
downloaded from the site of the Publishers on the internet.

Mode of citation: (2004)(Year)1 (Vol)SCC (Name)25 (Page)

Q. Write a short note on : Supreme Court Reports B.U. Apr. 2003

3. Supreme Court Reports

Familiarly referred to as "SCR", this reporter is published under the authority of the Supreme Court of
India by the Controller of Publications, Delhi. An official publication of the Supreme Court, it is
published on a monthly basis. Its current Editor is Mr. Rajendra Prasad and the Assistant Editor is Dr.
Tirlok Nath Arora.

SCR reports all judgments in important cases decided by the Supreme Court of India. These cases are
reported in a chronological order in a series of volumes which are fully indexed for ready reference. In
order to accommodate the vast number of cases, this reporter runs into several volumes every year. It
contains a simple "Contents", giving only the names of the cases, followed by a detailed Subject Index
of all the reported cases.

This reporter has brief head-notes, followed by detailed head-notes. Cases referred to or relied upon
or overruled are also listed with their citations before the text of the judgment. This is followed by the
names of the parties and the name of the Judge delivering the judgment. Then comes the full text of
the judgment.

As Judges and lawyers refer extensively to SCR in the court-room, this law reporter has acquired an
enviable reputation in the legal fraternity. Along with the frequently used AIR (-see above-), the SCR
occupies a prominent place in every law library and in every court-room.

Q. Write a note on : Criminal Law Journal. B.U. May 2002 Apr. 2003 Nov. 2003 Apr. 2004 Apr. 2006

4. Criminal Law Journal

The Criminal Law Journal, as the name suggests, is a collection of landmark judgments of the Supreme
Court, as well as all the High Courts, in cases involving criminal matters. It is published monthly by the
All India Reporter Private Ltd., from Nagpur. It was first published in 1904, and its current Chief Editor
is Mr. V. R. Manohar, Advocate.

This law reporter is a veritable gold mine of judgments of Indian courts in matters involving criminal
law. With a sense of remarkable promptness, it reports a plethora of cases relating to criminal matters
from all over the country. At a moderate price, one can avail of a coverage of more than 5,000 pages
every year.

This reporter contains a Nominal Table of the reported cases and a Subject Index with detailed head-
notes of reported cases, arranged subject-wise. A List of Cases which are followed or overruled or
reversed or dissented from, during a given period, adds tremendously to the utility of this reporter.
Another interesting feature is the Journal Section, containing interesting and illuminating articles in
the field of criminal law and jurisprudence. Two or three important decisions are also summarised in
a few lines on the cover page of each issue. - Interestingly, the Journal accepts articles, not only from
lawyers and jurists, but also from Government Officers, — and even from law stadents.

Given its prompt and accurate reporting, the Criminal Law Journal is an indispensable tool for all
practitioners in the interesting field of criminal law.

Mode of citation: 2004(Year)Cri. L. J. (Name) 1 (Vol)(Kerala) (State)55 (Page)

Q. Write a note on: Maharashtra Law Journal. B.U. May 2002 Dec. 2002 Nov. 2005 Nov. 2006

5. Maharashtra Law Journal

This law reporter is published every month by Chandurkar Publishing House, Nagpur, since 1963, its
current Chief Editor being Mr. Chandurkar. Its utility lies in the fact that it reports all important
judgments of the Bombay High Court, including its Benches outside the city of Mumbai, namely,
Nagpur, Aurangabad and Goa. As it is published monthly, it is of immense value, as it keeps the lawyer
- as well as the Judge - up-to-date with judicial decisions passed in the previous month. The reporter
also publishes the bare texts of new statutes passed by the Legislature of Maharashtra, as well as
recent amendments to the existing statutes.

Although this law reporter is mainly concerned with cases from Maharashtra, it also contains an
interesting section called "Notes from Supreme Court cases", where cases of general importance,
recently decided by the Supreme Court, are briefly discussed.

Maharashtra Law Journal (or MLJ, as it is familiarly referred to) is well-indexed, having a short Nominal
Index, a detailed Subject Index, an Index of Notes from Supreme Court Cases and an Index of Cases.
The Publishers have also come out with a useful 32-years' Digest of the Maharashtra Law Journal,
covering the period 1960 to 1991. Subsequent thereto, 6-years' Digests have also been published. MLJ
is now also available on a CD-Rom, right from the date of its first publication, that is, 1963, till date.

Mode of citation: 2004(Year)(2) (Vol) Mh. L. J. (Name)10(Page)

Q. Write a note on: Bombay Law Reporter.B.U. Nov. 2001

6. Bombay Law Reporter

The Bombay Law Reporter (BLR for short) is a leading law reporter, popular with lawyers and Judges
alike since 1899. Published from Pune, this law reporter, which describes itself as "the premier Law
Journal of Maharashtra" contains all important judgments recently delivered by the Supreme Court of
India and the Bombay High Court, including its Benches at Aurangabad, Nagpur and Goa. It was
founded by the late Mr. Ratarilal. The present Editor of this reporter is Mr. Divekar, and the Managing
Editor is Mr. Tipugade. Its Editorial Board and its Advisory Board consist of distinguished lawyers.

The Bombay Law Reporter contains a List of Cases reported therein, with a separate Subject Index. The
Journal Section, which is separately indexed, also includes recent amendments, mainly relating to Acts
which are in force in Maharashtra.

This law reporter is very popular with the lawyers and Judges and is cited very often by lawyers arguing
in courts in Maharashtra. Interestingly, it is relied upon in judgments passed all over the country.
Previous volumes of BLR, from 1978 onwards, are also available with the Publishers.

Mode of citation : (2004) (Year) (3) (Vol) Bom.L.R. (Name)101 (Page)

7. Labour and Industrial Cases

This is a monthly law reporter dedicated to labour and industrial cases, including civil service cases. It
is published by All India Reporter Ltd., Nagpur, and its Chief Editor is currently Mr. V. R. Manohar,
Advocate.

The Nominal Table of this reporter gives a list of cases reported, and the Subject Index gives a subject-
wise classification of the cases reported in this journal. Its Journal Section contains not only interesting
articles, but also the latest Notifications, Rules, Schemes, etc.

A veritable treasure-house of judgments on labour and industrial matters, this law reporter is a must
for any lawyer practising in the field of labour laws.

Mode of citation: 2004 (Year) Lab. I. C. (Name) 101 (Page) Kerala (Court)

Q. Write a short note on: Income tax Reports. B.U. Apr. 2005

8. Income Tax Reports

Founded in 1933 by Mr. Aiyar, this law reporter, familiarly referred to as "ITR", publishes cases
pertaining to tax matters, namely, income tax, wealth tax, gift tax, etc. Published from Chennai, this
reporter contains all important cases decided by the Supreme Court and the various High Courts in the
field of direct and indirect taxation.

This reporter also publishes statutes, rules, notifications and circulars relating to tax laws, as for
instance, Circulars issued by the Central Board of Direct Taxes. Recent amendments to existing statutes,
the Finance Bill and the Finance Act, passed by Parliament every year, are also to be found in this
reporter. Cases contained in this reporter are profusely cited before several courts, like the High Court
and the Supreme Court, as well as before Tribunals like the income-tax Appellate Tribunal. This law
reporter is thus a must for every tax practitioner.

Mode of citation: [2004] (Year)48 (Vol)ITR (Name)(S.c.) (Court)20 (Page)

9. Company Cases

Reports of Company Cases (including cases on banking and insurance), popularly referred to as
"Company Cases", is a law reporter dedicated to the corporate sector. Published by Company Law
Institute of India, Chennai, it was founded in 1931 by Mr. A. M. Aiyar. Currently, its Editors are Mr. T.
A. Rajgopal, Advocate, Mr. T. A. Ramchandran, Advocate and Mr. T. A. Ramakrishnan, Advocate.

One finds in this law reporter, important judgments of the Supreme Court, as also of all High Courts,
on corporate law. Apart from reporting judgments on cases under the Companies Act, it also includes
judgments on related topics like banking, insurance, mortgages, taxation, arbitration, etc.

Apart from a Table of Reported Cases, it also has a Table of Cases Cited, along with a General Index,
which follows a subject-wise classification. All these features add immensely to the utility of this
reporter. A separate Index refers the reader to Statutes, Rules, Circulars and Notifications.

Mode of citation: [2004] (Year)88 (Vol)( Comp. Cas. ) (Name)10 (Page)

10. Consumer Protection & Trade Practices Journal

This monthly journal is being published since 1993 by Kumar Publications, New Delhi, its Chief Editor
being Mr. S. S. Kumar, Advocate. The journal contains a comprehensive reporting of all cases involving
consumer protection, whether under the Consumer Protection Act or under the Monopolies &
Restrictive Trade Practices (MRTP) Act. Its Journal Section contains highly stimulating articles penned
by leading lawyers and jurists.

The three main sections of this journal are: (i) Judgments on consumer-related cases decided by
various courts constituted under the Consumer Protection Act, as for instance, the National
Commission in New Delhi and the various State Commissions all over India; (ii) Judgments passed by
the MRTP Commission in New Delhi; and (iii) Judgments passed by the Supreme Court and the High
Courts in cases relating to consumer protection.

Apart from consumer cases, the journal also includes full-length Orders passed by the MRTP
Commission in matters relating to restrictive, unfair and monopolistic trade practices. It is thus an
extremely useful journal, not only for lawyers, but also for professionals and businessmen.

Mode of citation: 2003 (Year)CTJ(Name)22(Page)(MRTP)(Under the MRTP Act) O R

2003 (Year)CTJ (Name)101(Page)(CP) (Under the Consumer Protection Act)

Q. Write a short note on : Divorce & Matrimonial cases.B.U. Apr. 2007

11. Divorce and Matrimonial Cases

This monthly reporter is published by DLT Publications, Delhi, its current Editor-in-Chief being Mr. S.

M. Suri, Advocate. Its Editorial Committee consists of eminent lawyers and retired judges.

This law reporter (familiarly known as "DMC") deals exclusively with cases in the matrimonial field, as
for instance, divorce, judicial separation, maintenance, etc. Interestingly, it also reports judgments on
allied matters like dowry and dowry death cases. One also finds English matrimonial cases in this law
reporter, which are of great use, even to Indian lawyers.

A very brief but precise head-note, followed by the result of the case, e.g. "Appeal allowed" or "Appeal
dismissed" adds to the utility of this reporter dedicated to matrimonial matters. Apart from a Nominal
Index, it also has a topic-wise Subject Index as well as a separate section-wise Subject Index.

Owing to its wide coverage of latest cases from all over the country, DMC is a must for all practitioners
in the matrimonial field.
Mode of citation : I(vol)(2004)(Year)DMC (Name)22 (Page)

Q. Write a note on : Bombay Cases Reporter. B.U. Nov. 2000

12. Bombay Cases Reporter

This Law Reporter describes itself as "a complete Journal of the Bombay High Court", and is published
monthly from Mumbai, since 1975. Its Advisory Committee consists of eminent lawyers and ex-Judges.
The current Chief Editor is Mr. V. G. Madhbhavi, Advocate and the current Editor is Mr. J. C. Agnihotri,
Advocate.

The Bombay Cases Reporter publishes judgments of the Bombay High Court in Mumbai, as also its
Benches at Nagpur, Aurangabad and Goa. The Subject Index of this Reporter is followed by a Nominal
Index of cases. Another section called "Acts and Amendments Section" gives all the latest Acts passed,
mainly by the Maharashtra Legislature, as also recent amendments to existing local Acts. Yet another
interesting feature is a Table showing the names of all the Judges of the Bombay High Court, along
with their dates of birth, their dates of appointment and their dates of retirement.

Bombay Cases Reporter has served the Bench and the Bar since 1975, and has grown from a single
volume of 500 pages to six volumes running into over 6,000 pages today. Previous issues have now
been converted into a digital format for providing easier access to all its readers.

This reporter is very useful to lawyers who are concerned mainly with State legislation of Maharashtra,
as well as with cases decided by courts in Maharashtra. However, relevant judgments of the Supreme
Court, particularly where judgments of the Bombay High Court have been appealed against in the
Supreme Court, are also to be found in this reporter.

A separate law reporter, Bombay Cases Reporter (Criminal), dealing with cases in criminal matters is
also brought out by the same Publisher.

Mode of citation: 2004 (Year)(2) (Volume)Bom. C.R.(Name)10(Page)

13. All Maharashtra Law Reporter

This law reporter is published on a monthly basis from Indore, its current Editors being Mr. Lai C. Sahita
and Mr. R. S. Kelkar.

Contrary to what its name may suggest, this reporter also gives the full text of important judgments of
the Supreme Court, with a separate Nominal Table for those cases Although its main aim is to report
cases from the Bombay High Court (including its Benches outside the city of Mumbai), it also reports
important cases from other High Courts, a feature that adds considerably to the utility of this reporter.
It also has an enlightening Journal Section.

An interesting feature of this reporter is that it also contains a Consolidated Nominal Table (separately
for the High Court and the Supreme Court), as also a Consolidated Topical Index and a Consolidated
Statutory Subject Index, which makes search for case law much easier. The top ten decisions reported
in any particular issue of this law reporter are all listed on one page in the opening pages of this
reporter.

Mode of citation: 2004 (Year)(2) (Vol)ALL MR(Name) 10(Page)

Q. Write a note on: Indian Law Reports. B.U. Apr. 2000, May 2001, Nov- 2001, Dec. 2002 Nov. 2003

14. The Indian Law Reports

This is an official publication of various High Courts of India. These Reports are divided into various
series, as for instance, the Gujarat Series, the Kerala Series, and so on, containing reports of cases from
that particular High Court. For instance, the Bombay Series is published under the authority of the
Governor of Maharashtra, and is edited by Mr. Tipnis, Advocate.

The Table of Cases in this Reporter neatly divides all cases into Original Cases, Appellate Cases (sub-
divided into Civil Appellate Cases and Criminal Appellate Cases), Income-tax References, and so on.
Cases which are cited in the reported cases are also shown separately in an alphabetic Index, it also
has a fairly exhaustive General Index, sometimes running into seventy to eighty pages.

The cases are reported in a fairly simple manner. First comes the name of the Judge of the Court,
followed by the names of the parties. Next comes a meticulously prepared head-note that gives the

reader an excellent gist of what was decided in that case. This is followed by a list of cases referred to
in the body of the judgment, with the relevant citations by way of footnotes. Next comes a sentence
which states : "The material facts of the case are stated in the judgment." Then come the names of the
lawyers representing the parties, followed by the name of the Judge delivering the judgment, followed
lastly, by the full text of the judgment.

Mode of citation : ILR (Name)(1999) (Year)3 (Vol)Mad. (Court)102 (Page)

Q. Write a short note on : Madras Law Journal. B.U. Apr. 2007

15. Madras Law Journal

The Madras Law Journal is perhaps the oldest privately published law reporter in India. It was first
published in 1891 from Madras (now, Chennai), from where it continues to be published even today.
As its name suggests, it reports all important cases decided in Tamil Nadu, and in particular, by the
Madras High Court.

The remarkably long innings of this law reporter speak volumes for this journal's popularity and
dependability. Every year, this journal runs into several volumes, and currently, its Editor-in-chief is
Justice Subramani, a former Judge of the Madras High Court and the Editor, Mr. Kannan, Advocate. For
a lawyer practising in the State of Tamil Nadu, this law reporter is indeed indispensable.

Mode of citation : 2004 (Year)(2)(Vol)MLJ(Name)10(Page) tip Unreported Judgments

This law reporter-cum-magazine with an interesting name reports almost all judgments, reported and
unreported, of the Supreme Court of India, on civil, criminal and revenue matters. It is published
fortnightly from Jodhpur, Rajasthan. Currently, its Chief Editor is Dr. S. K. Awasthi and its Publisher is
Mr. G. C. Sachdeva. The Advisory Board of this law reporter is an impressive list of not only senior
lawyers and Judges, but also of Law Professors. This Magazine is one of the newer ones, having been
introduced to the legal fraternity as recently as in 2002.

Being a fortnightly publication, it reports the most recent cases of the Supreme Court, though only
about 10 to 15 in every issue. This law reporter has a useful Table of Cases and a Subject Index, with
detailed head-notes. It also has a Journal Section, containing interesting articles penned by leading
lawyers and jurists on topics of current interest.

The full text of the judgment is preceded by a short head-note, as also a detailed head-note, with
reference to the corresponding paragraphs of the body of the judgment. This is followed by the names
of the Advocates representing the parties, as also a list of cases referred to in the body of the judgment.

Mode of citation: 2004 (Year)(1)(Vol)UJ(Name)10(Page)(SC)(Court)

Q. Write a short note on : Judgments Today. B.U. Nov. 2005 Nov. 2006

17. Judgements Today

In this law reporter, one finds important cases decided by the Supreme Court of India. It does not
confine itself only to civil or only to criminal cases, but encompasses all recent judgments of the

Supreme Court in diverse fields. Judgements Today is published by Taxation Publishers Private Ltd.,
New Delhi. Its current Editor is Mr. V. Gopalan, the Publisher being Manjula Pandit. The Editorial
Advisory Committee of this popular law reporter consists of eminent members of the legal fraternity,
including retired Justices and Chief Justices of the Supreme Court and various High Courts.

This law reporter is known for its quick and efficient reporting of the judgments of the Supreme Court.
Every issue of Judgements Today contains only five to seven cases, some of which are decided as
recently as three or four days before its publication. Its Nominal Table, Comparative Chart and Subject
Index add greatly to its utility. The usefulness of its Subject Index lies in the fact that, under the
appropriate topic, the relevant case is shown with the names of the parties, the names of the Judges,
and even very short head-notes which give the reader a gist of what was held by the court in that
particular case.

Although this law reporter is of immense value to all lawyers, it is of particular value to those whose
aim is to keep themselves up-to-date with the latest cases decided by the Supreme Court.

Mode of citation : JT (Name)2004(Year)(4)(Vol)SC(Court)10(Page)

Q. Write a note on : All England Reports. B.U. Apr. 2000 Nov. 2001 Dec. 2002

18. All England Law Reports

The All England Law Reports is one of the best known and most reliable law reporters of England,
which publishes important judgments of all the superior courts of Great Britain. Its publisher is a
leading house of law publications in England, Butterworths.

The Editorial Board of this law reporter consists of eminent jurists and members of the Bar, who have
contributed to its reputation in the past, and continue to do so today. The current Editor of this
publication is Mr. Craig Rose, Barrister.

Apart from its Table of Contents, this reporter also has a Digest of Cases, which is a subject-wise
classification of all the reported cases. An innovative feature is a separate Index of all statutes referred
to in the judgments, indicating the page number on which a reference to such statute appears in the
judgments. In a special Section, interestingly entitled "Notes-up", it gives a list of cases which were
considered, approved, affirmed, applied, distinguished or over-ruled in the cases reported by it. The
text of the judgment is preceded by the name of the case, the names of the Judges, excellent head-
notes, a List or Cases referred to in the judgment, as also a List of Cases referred to in the arguments
of the respective lawyers.

The credibility and utility of this law reporter become evident when one sees that it is extensively
referred to, not only by English lawyers and Judges, but also by their Indian counterparts. Most
references to English cases, whether in books on Indian law or in decisions of Indian courts, prefer to
cite English cases with reference to this law reporter.

Mode of citation : [2004] (Year)2 (Vol)ALL E R (Name)22 (Page)

 19. The Weekly Law Reports

As its name suggests, this law reporter, familiarly referred to as "WLR", is published every week by the
Incorporated Council of Law Reporting (ICLR), London. Currently, its Editor is Mr. Robert Williams,
Barrister. The ICLR for England and Wales has an impressive Council, consisting of a Chairman, ex-
officio members, elected members, co-opted members and a secretary.

WLR is known for its meticulous standards of reporting. One has only to leaf through this reporter for
the names of the Lord Chancellor and other Lords of the House of Lords, as well as Judges of the Court
of Appeal, High Court, Queen's Bench Division and the current Attorney-General of England.

This law reporter enjoys an edge over others inasmuch as barristers, and even Judges, can keep
themselves abreast of the latest case-laws on a weekly basis.

. LAW MAGAZINES

1. INDIAN BAR REVIEW

The Indian Bar Review was first published in 1972 as the Journal of the Bar Council of India. In April
1974, the Bar Council of India Trust was established as a Public Charitable Trust designed to serve two
broad areas which from the statutory obligations of the Bar Council of India, being maintenance of
professional standards and improvement of legal education. In keeping with this ideology, -inJ980, this
Trust took over the publication of the Journal. Today, the journal is being brought out regularly as a
quarterly publication in March, June, September and December every year.

Rechristened as the Indian Bar Review, this Journal enjoys a mass readership of judges, lawyers, law
teachers and researchers. Its articles reflect the state of law and legal education in the country and it
is rated as one of the top legal periodicals published in the country.

2. THE PRACTICAL LAWYER

The Practical Lawyer is one of the latest magazines to be introduced in the legal world. It is published
on a monthly basis from Lucknow by the Eastern Book Company and is edited by Mr. Surendra Malik.
A single issue costs Rs. 40, while an annual subscription is available for Rs. 600.

The Practical Lawyer is divided into numerous sections, affording in totality an all-comprehensive
glimpse of the latest legal happenings. The "Important Enactments" section of the magazine
enumerates the latest changes in the law, whether by way of legislative enacments or by subordinate
legislation. Likewise, the "Important Judgments" section lists the latest judgments with a one-line gist.

The magazine also contains a section called "News Briefs", where current happenings in the judicial
arena are provided court-wise. The magazine also publishes some scholarly articles relating to various
areas of law-constitutional, corporate, intellectual property, etc. Additionally, the magazine provides
detailed information of the most recently published law books.

The bulk of the magazine is formed by the digest of the Supreme Court Cases, the Law Reports and
the Weekly Law Reports reporting the judgments of the Supreme Court and High Courts in a head-
note style. Citations are provided so that one may trace the judgment in the corresponding law report
without much effort.
 3. MANUPATRA NEWSLINE

The first of its kind, Manupatra Newsline, founded in 2006, is a one-stop newsletter for judges,
practitioners, professionals, academicians and students. A fine blend of the most critical articles,
insightful interviews, captivating news, comprehensive information, latest events and the most recent
happenings in the legal arena across the country, MANUPATRA NEWSLINE is a must read for all
members of the legal fraternity. The goal of its publishers is to create an active forum for exchange of
ideas and information amongst the legal fraternity in India.

The section on 'Law Firms' shares with the legal fraternity the achievements and happenings of the
legal community at large. It provides information regarding new appointments, movements,
relocations, mergers, promotions, formation of new associations, awards, degrees, honours, elections,
authors and speakers.

The 'Campus Watch' section invites Law Colleges and Faculty to sent in their contributions for covering
happenings and news from the campus on various Moot Competitions, Scholarships, Campus
Placements, Meritorious Students, Outstanding Faculty, Seminars, Events, Festivals, New Courses and
more.

This magazine is published monthly by Manupatra Information Solutions Pvt. Limited from Noida,

U.P. The annual subscription is Rs. 540, while a single copy costs Rs. 75.

Q. Write a note on : Law Teller. B.U. Apr. 2000 Nov. 2000 Nov. 2001 May 2002 Dec. 2002

4. LAW TELLER

Law Teller is a legal awareness magazine published every month from Chandigarh, and nominally
priced at Rs. 25. (Annual subscription : Rs. 300.)

The Magazine seeks to keep the reader up-to-date, by reporting important judgments of various
courts, as well as publishing interesting articles on various socio-legal subjects,^ Summarised versions
of recent pronouncements of courts (mainly the Supreme Court) are listed under a regular feature
called "Flash Points".

Law Teller also has a regular feature called "Law For You", which contains useful extracts from cases
decided by various courts, of interest not only to lawyers, but also to law students and the layman.
The point decided by the courts, i. e., the ratio decidendi, is aptly summarised in one paragraph, and
a reference is given to the name and number of the Petition, Appeal, etc., so that the interested reader
can profitably refer to the entire text of the judgment.

Yet another unique feature of this Magazine is called "Lighter Side of Law", containing cartoons
depicting court-room jokes, etc.

In its own words, Law Teller has only one policy : To strive for legal awareness. In furtherance of this
policy, it even provides free legal advice to its readers to help them solve their legal problems, justifying
its claim to be "a boon to the common man". This is what the Magazine has to say for itself:
"We feel if students are disclosed the latest case-law, they can act as torch-bearers for showing the
legal path in their houses, neighbourhood and villages. Legal awareness should be created regarding
certain important aspects which will help to remove numerous evils.

xxxxxx xxxxxx xxxxxxx xxxxxxxx

Keeping in mind that "Law is the last interpretation of the last Judge", we certainly hope to fulfill your
requirements by keeping you abreast with the very latest."

Write a note on : Lawyers Collective. B.U. Apr. 2000 Dec. 2002 Apr. 2003 Nov. 2003 Apr. 2004 Apr.
2005

Q. Who is the Editor of The Lowyers Collective ? B.U. Nov. 2005

5. LAWYERS COLLECTIVE

The Lawyers Collective, published since 1986, is a monthly Magazine, aiming to use law as an
instrument of social change. Edited by Ms. Indira Jaising, and printed by All India Reporter (AIR) Pvt.
Ltd., Nagpur, it is priced at Rs. 30. (Annual Subscription : Rs. 300.)

This Magazine provides legal information for use by lawyers and activists on issues of socio-legal
concern. An interesting feature of this Magazine is that it invites articles from its readers, especially
law students, which are then published. Thus, if any reader has strong views about any issue, legal, or
even otherwise, the Magazine can be profitably used as a platform to voice his / her concerns and
opinions.

The Magazine has a thought-provoking Editorial and a "Cover Story' section on current topics of
general interest. Another interesting feature is "Monthly Updates", — which is a good summary of
important Judgments of the Supreme Court of the previous month. Five or six Judgments of the Apex
Court are summarised in plain language, so that a lawyer and student alike may keep himself abreast
of the most recent pronouncements on Indian law. The citation of the Judgments given at the end of
the summary allows the reader to refer to the text of the Judgment for further details.

Yet another feature of the Legal Diary is entitled "Court Round Up". This provides national and
international tit-bits of legal happenings culled out from newspapers of the previous month. Another
feature called "Adalat Antics" touches the lighter side of the law.

The Magazine does not accept commercial advertisements, — although one does find it advertising its
own ( i. e. AIR ) publications.

Q. Write a note on : One India, One people. B.U. Apr. 2003 Apr. 2005

6. ONE INDIA, ONE PEOPLE

This is a unique monthly magazine, published since August 1997. As can easily be gauged from its
name, this is not a law magazine. It describes itself as the "Magazine for a Great, Strong, United India".
It is edited by Mr. Sadanand A. Shetty, and is published monthly from Mumbai. It is priced at Rs. 50.
(Annual subscription : Rs. 500.)

This Magazine caters to a variety of readers with articles on multifarious topics. It has an in-depth and
interesting Editorial. The objective of the magazine is to make the general public, as well as the policy-
maker and the decision-takers, aware of the causes which come in the way of the progress of our
nation.

Topics of national importance are taken up for discussion, as for instance, population, accountability
in public life, alleviation of poverty, education, gender justice, corruption, judicial and electoral
reforms, public accountability, globalization, the problem of migration, rural development, and so on.

Aiming at a united India, it incorporates articles of general interest, helping the reader to know his
country better. In its own words, —

"In all cases, you are Indian first, last and always. Be a proud Indian. Make this country great, strong &
united."

A popular feature of this Magazine is the Young India Quiz, which gives Questions with multiple- choice
Answers, which test the readers' knowledge of various facets of India. Entries containing the answers
can be posted to its office at Mumbai. Alternately, the Quiz can also be answered on-line. One winner
is chosen as the "Cool Winner" every time, and his / her name is published in the next issue with a
photograph, if available.

On "Morparia's Page", one finds some of the best cartoons of Morparia. Another column called "Great
Indians" profiles Indians who have contributed to the betterment of the country in various fields, be it

Writi J.e on : Consui,,<*." Confrontation.

B.U. Nov. 2003

Write a note on : Lex et Juris.

B.U. Nov. 1999 Nov. 2000 Nov. 2001 May 2002 Apr. 2004

freedom struggle or politics or science or technology or theatre or music. Another important feature
is called "Know your India better", introducing the reader to various places of interest and monuments
of India.'

One noticeable feature of this Magazine is that it accepts commercial advertisements, — a practice
that is rightly avoided by other Magazines like INSIGHT and Law Teller.

Explanation of citations
Most citations of Indian cases found in legal text-books are either of the Supreme Court or of a High
Court. Where it is a case decided by a High Court, the party whose name appears first would be a
Plaintiff (in cases where the plaint is originally filed in that High Court), and the opposite party would
then be described as the Defendant. If, however, he has filed a Petition in the High Court (as for
instance, a Writ Petition or a Matrimonial Petition), he would be described as the Petitioner and the
opposite party would be the Respondent. It is also possible, that the party whose name appears first,
has filed an Appeal in the High Court from a lower court, in which case, he would be called the
Appellant and the opposite side would be described as the Respondent.

Just by looking at the citation, it is not possible to know as to which one of the above alternatives exists
in a particular citation, and therefore, for all High Court citations, the first party can best be described
as "the Plaintiff / Petitioner / Appellant", and the opposite party as "the Defendant / Respondent".

If, however, the citation is of a case decided by the Supreme Court, since no plaints are filed in that
court, the party whose name is stated first can only be a Petitioner (if he has filed a Petition) or an
Appellant (if he has filed an appeal). As one cannot make out which of these two alternates exist in a
given citation, such a party can best be described as "the Petitioner / Appellant" (as he cannot be a
Plaintiff). The opposite party, in both cases, is called the Respondent (as he cannot be a Defendant).

Examples of citations

1) Ramdas v/s Chinnappa (1958) 2 SCC 304

This is the citation of a case where Ramdas is the Petitioner / Appellant and Chinnappa is the
Respondent. The case is reported in the Second Volume of Supreme Court Cases in the year 1958, on
page 304.

2) Laxman versus Meena AIR 1997 Cal 312

This is the citation of a case where Laxman is the Plaintiff / Petitioner / Appellant and Meena is the
Defendant / Respondent. The case is reported in All India Reporter in the year 1997 on page 312. This
case was decided by the Calcutta High Court.

3) Allen V/s Hume (1957) 3 SCC 304

This is the citation of a case where Allen is the Petitioner / Appellant and Hume is the Defendant /
Respondent. The case is reported in Supreme Court Cases in the third volume of the year 1957 on page
304.

4) Ranjit v. Mohan AIR 1997 Cal 310

This is the citation of a case where Ranjit is the Plaintiff / Petitioner / Appellant, and Mohan is the
Defendant / Respondent. This case is reported in All India Reporter in 1997 on page 310. This case was
decided by the Calcutta High Court.

5) Laxman v/s Radhika AIR 1995 Orissa 420

This is the citation of a case where Laxman is the Plaintiff / Petitioner / Appellant and Radhika is the
Defendant / Respondent. This case is reported in the All India Reporter of 1995, on page 420. This case
was decided by the Orissa High Court.

1) A. K. Gopalan v/s State of Madras AIR 1950 SC 27

This is the citation of a case where A. K. Gopalan is the Petitioner / Appellant and the State of Madras
is the Respondent. This case is reported in All India Reporter in the year 1950 on page 27, and was
decided by the Supreme Court.

6) Reena Mitra v/s Ashesh Mitra 95 (WN) 185

This is the citation of a case where Reena Mitra is the Plaintiff / Petitioner / Appellant and Ashesh Mitra
is the Defendant / Respondent. This case is reported in Volume No. 95 of Weekly Notes on page 185.

7) Ramesh vs. Sanjeev AIR (1997) Cal 452

This is the citation of a case where Ramesh is the Plaintiff / Petitioner / Appellant and Sanjeev is the
Defendant / Respondent. This case is reported in 1997 issue of the All India Reporter on page 452 and
was decided by the Calcutta High Court.

8) Lakshman vs. Manu (2001) 2 SCC 420

This is a citation of a case where Lakshman is the Petitioner / Appellant and Manu is the Respondent.
This case is reported in the Supreme Court Cases in the Second Volume of the year 2001 on page 420,
and was decided by the Supreme Court.

9) S.T.O. v/s Shiv Ratan AIR 1966 SC 142

This is a citation of a case where S.T.O. is the Petitioner / Appellant and Shiv Ratan is the Respondent.
This case is reported in the All India Reporter in the year 1966 on page 142, and has been decided by
the Supreme Court.

10) Nagarjun v/s State 1985 Cr. L.J. 2071

This is the citation of case where Nagarjun is the Appellant and the State is the Respondent. This case
is reported in Criminal Law Journal in the year 1985 on page 2071.

11) Raghavan v/s Sumitradevi (1989) 2 SCC 470

This is the citation of a case decided by the Supreme Court where Raghavan is the Petitioner /
Appellant and Sumitradevi is the Respondent. This case is reported in the Second Volume of Supreme
Court Cases of the year 1989, on page 470.

12) Shiv Prakash Naryan v/s S. K. Tiwari AIR 1956 Cal 273

This is the citation of a case where Shiv Prakash Naryan is the Plaintiff / Petitioner / Appellant and S.

K. Tiwari is the Defendant / Respondent. This case is reported in All India Reporter in the year 1956 on
page 273 and is decided by the Calcutta High Court.

13) Laxminarayan Iyer Vs. State of Maharashtra (1995) 3 SCC 583 This is the citation of a case
decided by the Supreme Court where Laxminarayan Iyer is the Petitioner / Appellant and the
State of Maharashtra is the Respondent. This case is reported in Supreme Court Cases in the
third volume of the year 1995 on page 583.

14) Cheema Services Pvt.Versus Rajan Singh (1997) 88 Comp. Cas 400

This is the citation of a case where Cheema Services Pvt. is the Plaintiff / Petitioner / Appellant and
Rajan Singh is the Defendant / Respondent. This case is reported in Volume 88 of Company Cases in
the year 1997, on page 400.

15) Laxman Baburao Jadhav v. State of Maharashtra & others(1997) 99 Bom L R 220

This is the citation of a case where Laxman Baburao Jadhav is the Plaintiff / Petitioner / Appellant and
State of Maharashtra and others are the Defendants / Respondents. This case is reported in Volume
99 of the Bombay Law Reporter of the year 1997, on page 220.

16) William Rodrigues & Anr. v. Goa University 1993(2) Bom C.R. 158

This is the citation of a case where William Rodrigues and another person are the Plaintiffs / Petitioners
/ Appellants and the Goa University is the Defendant / Respondent. This case is reported in the second
volume of Bombay Case Reporter of the year 1993, on page 158.

[ Where there are several Petitioners or Respondents, it is customary to refer to them as "X and

others" or "X & Ors", rather than list out all the names of the parties. When there are two parties,
the citation is "X...... and Another" or "X & Anr." ]

17) P. Venkata Krishna Rao v. Dr. B. Seetharam 1990(1) RCJ 45

This is the citation of a case where P. Venkata Krishna Rao is the Petitioner/ Appellant and Dr. B.
Seetharam is the Respondent. This case is reported in the first volume of Rent Control Journal in the
year 1990, on page 45.

18) Sudarshan Marketing v. Chief Commercial Manager, Railway 2004(2) All M R 357

This is the citation of a case where Sudarshan Marketing is the Plaintiff / Petitioner / Appellant and
Chief Commercial Manager, Railways, is the Defendant / Respondent. This case is reported in the
second volume of All Maharashtra Reporter of the year 2004 on page 357.

19) Amritlal Patel v. Himmatbhai Patel 1969 ( 1) SCR 277

This is the citation of a case decided by the Supreme Court, where Amritlal Patel is the Petitioner /
Appellant and Himmatbhai Patel is the Respondent. This case is reported in the first volume of
Supreme Court Reports of the year 1969, on page 277.

20) Pratap Singh v. State of Punjab 1966(1) LLJ 458

This is the citation of a case where Pratap Singh is the Plaintiff / Petitioner / Appellant and the State of
Punjab is the Defendant / Respondent. The case is reported in first volume of Labour Law Journal of
the year 1966, on page 458.

SEARCH FOR CASE LAWS

"God forbid that it should be imagined that an Attorney, or a Counsel, or even a judge, is bound to
know all the law."

Chief Justice Abbott

It is quite true that a good lawyer must have a good knowledge of law. However, it would be going too
far to assume that he should be knowledgeable in all the laws of the country and also be well- versed
with all the niceties of every field of law. Therefore, what is important for the lawyer is not only to
know the law but also to know how to find the law. Acquiring a good command over the various
techniques of finding case-law, calls for special techniques and methods of searching for case law.

A lawyer uses several methods of locating cases, but the most useful amongst them are the following
four :

(a) Statute approach;

(b) Subject or topic approach;

(c) Case method approach; and

(d) Search on the Internet.

Each of these is briefly discussed below.

(a) Statute approach

Under this traditional method, the relevant case law is found by searching for cases under the relevant
statute, rule, regulation, order, etc. The approach is mainly based on commonly used words, phrases
and headings. After successfully locating the Act, one has to go to the relevant section which deals
with the subject-matter in question. Thus, if one has to search for cases relating to a minor's
agreement, one would go to the Indian Contract Act, and the relevant sections thereunder, namely,
Sections 10 and 11. Practically every text would contain a plethora of cases under these sections, and
the lawyer would have to judiciously pick up those that he feels are relevant for his purpose.

(b) Subject or topic approach

This approach is an easy and convenient method of finding cases, and is particularly useful where the
law is not codified, as for instance, the law of torts or administrative law or the law relating to
interpretation of statutes. It is, however, also very useful for locating cases under the codified law, like
the Indian Contract Act or the Indian Penal Code. Thus, for instance, if the lawyer is looking out for
cases on negligence, the relevant cases will be found under the chapter on Negligence in any book on
the law of torts, as for instance, the book by Ratanlal and Dhirajlal. Following this method, me lawyer
will find, not only cases which support his brief, but also those that have been decided against the
point which is being canvassed by him in his case.

Even when a lawyer is not familiar with a given Act, most text books would have a Synopsis, listing all
relevant statutes and sub-topics, thus further facilitating the search for the cases by a lawyer following
this method. Moreover, in several text books, important concepts, doctrines and maxims, which have
been discussed at several places in the book, are separately listed in the Index or in the Contents. Many
text books not only give a synopsis, but also print the heading of the synopsis on the top of the column
on all subsequent pages where the topic continues to be discussed.

(c) Case method approach

The case method approach is yet another widely-used method of locating cases. If one known case on
the point in question is available, other cases can easily be traced, following their citations in the first
mentioned case. For instance, a famous English case on negligence is Donoghue v. Stevenson, and a
perusal of this judgment will take the reader to other cases on negligence, along with their citations.
Likewise, the most notable case on the measure of damages in the case of breach of contract, namely,
Hadley v. Baxendale, can be profitably read to discover other cases (with their citations) on the same
point of law.

ABBREVIATIONS OF LAW REPORTS

Whenever one comes across a case, one can refer to it only if the citation of the case is also given. It is
only then that one can go to the relevant law reporter and refer to the judgment in that case on the
page number given in the citation. The names of the law reports are, however, generally given in an
abbreviated form, and the list given below will help the reader to understand these abbreviations.

ABBREVIATIONS OF IMPORTANT LAW REPORTS, JOURNALS & PERIODICALS

A.C Appeal Cases

A.C.C Accident & Compensation Cases

A.C.J Accident Claims Journal

A.I.H.C All India High Court Cases

A.I.R S.C.W All-India Reporter Supreme Court Weekly

A.I.R. (NOC) All India Reporter (Notes of Cases)

A.I.R. (NSC) All India Reporter (Notes of Supreme Court Cases)

A.I.R All India Reporter

A.I.TC All India Tribunal Cases

A.L.J Allahabad Law Journal

A.S.I.L Annual Survey of Indian Law

A.T.C Administrative Tribunal Cases

A.T.L.T Administrative Tribunals Law Times

A-T.R Administrative Tribunal Reporter

All E.R All England Law Reports

All. Cri. L. R All India Criminal Law Reporter

All, L. R Allahabad Law Reports

All Mah. L. R All Maharashtra Law Reporter

All Serv. Rep All India Services Reports

Arbi. TLR or A.T.R Arbitration & Trade Mark Law Reporter

B.H.C.R Bombay High Court Reports

Bank OL.R Banking Commercial Law Reporter

Bank. L.J Banking Law Judgment

Writ L.R Writ Law Reporter

Y.L.J Yale Law Journal

E.L.Rs------------- Election Law Reports

E.S.C Education & Service Cases

Ed.Cas Education Cases

Ex.C.C Excise & Customs Cases

Ex.C.R Excise & Customs Reporter

Ex.F.R Excise & Food Adulteration Reports

Ex.L.T Excise Law Times

F.A.C Prevention of Food Adulteration Cases

F.A.J Prevention of Food Adulteration Journal

F.C.R Federal Court Reports

F.J.R Factories Journal Reports

F.L.J Federal Law Journal

Fac.L.R Factories & Labour Reports

G.O.C.(S.C.) Gist of Cases (Supreme Court)

Goa L.T Goa Law Times

Guj. L.J Gujarat Law Journal

H.C.R High Court Reporter

H.R Hyde's Reports

Harv. L. Rev Harvard Law Review

Hindu L.R Hindu Law Reporter

I.A Indian Advocate

I.B. Rev Indian Bar Review

I.C.C Indian Civil Cases

I.C.R Industrial Court Reporter

I.J. Leg. Studies Indian Journal of Legal Studies

I.J.R Indian Judgment Reporter

I.J.R Indian Judicial Reports

I.L. Rev Indian Law Review

I.L.R Indian Law Reports

I.T.A.T.R Income-tax Appellate Tribunal Reporter

I.T.C.-------- Income-tax Tribunal Cases

I.T.D Income-tax Tribunal Decisions

I.T.R Income-tax Reports

Ind.App Law Reports, Indian Appeals

Ind.Cas Indian Cases

Ind.J. Indian Jurist

Ind.R. Indian Rulings

Ind.Tax Cas Indian Tax Cases

Int.L.R. International Law Reporter

J.B.C.I. Journal of Bar Council of India

J.I.L.I. Journal of Indian Law Institute

J.S.C.T.L Journal of Shipping, Customs & Transport Laws

J.T Judgments Today

K.B King's Bench Law Reports

Statutes (Enactments) - Meaning and Classification

Statutes, also known as enactments, are laws that are formally written and enacted by a legislative
body. These bodies can include parliaments, congresses, legislatures, and other similar institutions,
depending on the specific legal system. Statutes are a primary source of law and play a crucial role in
shaping and governing various aspects of society.

Meaning of Statutes: Statutes are laws created by a legislative body through a formal process of
proposal, debate, and approval. They are often written in a clear and precise manner to convey specific
rules, regulations, and requirements. Statutes can cover a wide range of legal areas, including criminal
law, civil law, administrative law, and more.

Classification of Statutes:

1. Public and Private Statutes:

 Public Statutes: Apply to the general public and are meant to regulate society as a
whole.

 Private Statutes: Apply to specific individuals or entities and are often enacted to
address unique or exceptional situations.

2. Declaratory and Remedial Statutes:

 Declaratory Statutes: Clarify the meaning of existing law without changing its
substance. They often address ambiguities or uncertainties in the law.

 Remedial Statutes: Introduce changes to the law to correct defects, provide remedies,
or improve legal processes.

3. Temporary and Permanent Statutes:

 Temporary Statutes: Have a limited duration and are enacted to address specific
situations or issues. They automatically expire after a certain period unless renewed.

 Permanent Statutes: Have no expiration date and remain in force until repealed or
amended by the legislative body.

4. Enabling and Interpretative Statutes:

 Enabling Statutes: Grant authority to other bodies or officials to create rules and
regulations in a particular area.

 Interpretative Statutes: Provide clarification or interpretation of existing laws without

introducing substantive changes.

5. Codifying Statutes:
  Codifying Statutes: Combine and organize existing laws on a particular subject into a
single, comprehensive statute. This is common in areas like criminal codes, tax codes,
and family law codes.

6. Money Bills and Appropriation Bills:

 Money Bills: Deal exclusively with national taxation or public expenditure.

 Appropriation Bills: Authorize the government to spend money from the treasury for
specific purposes.

7. Imperial and Local Statutes:

 Imperial Statutes: Enacted by a central or federal legislature, applying to the entire

jurisdiction.

 Local Statutes: Enacted by regional or local legislatures, applying to specific regions or

jurisdictions.

8. Public Health and Safety Statutes:

 Public Health Statutes: Address matters related to public health, sanitation, and
disease control.

 Safety Statutes: Focus on ensuring the safety of individuals in various contexts, such
as workplace safety or consumer product safety.

Commencement of Statutes- Prospective application

The commencement of statutes refers to the time when a law comes into effect and becomes legally
binding. Statutes can have different commencement provisions, and one common approach is
prospective application.

Prospective Application of Statutes:

1. Definition:

 Prospective application: A statute is applied to future events, actions, and

circumstances rather than retroactively affecting past situations.

2. Implementation:

 When a statute has a prospective commencement date, it means that it applies to

conduct or events occurring after that specified date.

3. Reasons for Prospective Application:

 Fairness and Predictability: It is often considered fair to provide individuals and

entities with notice of legal changes, allowing them to adjust their behavior
accordingly.

 Avoiding Retroactive Impact: Retroactive laws can be disruptive and may infringe on
established legal expectations. Prospective application helps avoid unexpected
consequences.
 4. Example:

 Suppose a new tax law is enacted on January 1, 2023, with a prospective

commencement date. In this case, the new tax provisions would apply to income
earned or transactions occurring on or after January 1, 2023. Income earned or
transactions completed before this date would be subject to the previous tax law.

5. Exceptions:

 Some statutes may explicitly provide for retroactive or retrospective application in

certain circumstances. However, such provisions are typically clearly stated in the
legislation.

6. Legislation Language:

 The language used in the legislation is crucial in determining the intended

commencement. If the statute specifies that it applies "from" or "after" a certain date,
it indicates prospective application.

7. Impact on Legal Rights:

 Prospective application generally means that legal rights and obligations arising from
past actions are not affected by the new law. Existing contracts, licenses, and other
legal relationships remain governed by the law in effect at the time they were formed.

8. Clarity in Drafting:

 To avoid confusion, legislators aim for clarity when drafting statutes. If there is any
ambiguity about the commencement date, it may lead to legal disputes or challenges.

Understanding the commencement provisions of statutes is crucial for legal practitioners, businesses,
and individuals to ensure compliance with the law and to navigate changes in the legal landscape. It
also contributes to legal certainty and fairness in the application of laws.

Retrospective effect
When a statute or law is said to have "retrospective effect," it means that the law applies to events,
transactions, or situations that occurred before the law was enacted. Unlike prospective application,
which applies to future events, retrospective effect reaches back in time to affect past occurrences.

1. Definition:

 Retrospective effect: The application of a statute or legal provision to events or

circumstances that occurred before the law came into force.

2. Legislation Language:

 The language used in the legislation is crucial in determining whether a law has
retrospective effect. If the statute explicitly states that it applies "retrospectively" or
"from a date prior to enactment," it indicates retrospective application.

3. Exceptions:
  Retrospective laws are generally disfavored because they can disrupt established legal
expectations. Legislators may include specific provisions justifying or allowing
retrospective application in certain situations.

4. Justification for Retrospective Laws:

 Curative Legislation: Retrospective laws are sometimes enacted to cure defects in

previous laws or to rectify unintended consequences.

 Clarification: A law may have retrospective effect to clarify the original legislative
intent or to resolve ambiguities in prior legislation.

5. Challenges:

 Retrospective laws can face legal challenges on the grounds of fairness, due process,
and legal certainty. Individuals and entities affected by such laws may argue that it is
unjust to apply new rules to past actions.

6. Example:

 Suppose a tax law is amended in 2023 to include a new deduction for certain business
expenses. If the amendment explicitly states that the new deduction applies from
January 1, 2020 (retrospective effect), businesses may be entitled to claim the
deduction for expenses incurred in 2020 and subsequent years.

7. Impact on Legal Rights:

 Retrospective laws can impact existing legal rights and obligations. They may alter the
legal consequences of past actions, contracts, or transactions.

8. Express Language in Legislation:

 Courts often look for clear and express language in the legislation to determine the
legislature's intent to give a law retrospective effect.

Repeal of Statutes
Repeal of statutes refers to the process by which a legislative body revokes or annuls an existing law,
rendering it void and no longer effective. Repeal can be total or partial, and it can occur for various
reasons, including the need for legal reforms, the obsolescence of certain laws, or the consolidation of
legislation.

1. Definition:

 Repeal: The formal act of revoking, abrogating, or abolishing a law, making it no longer
operative.

2. Types of Repeal:

 Total Repeal: The entire statute is revoked, and it ceases to have any legal effect.

 Partial Repeal: Only specific provisions of a statute are revoked, while the rest of the
law remains in force.
3. Methods of Repeal:

 Express Repeal: A new statute explicitly states that it repeals or amends certain
provisions of existing law.

 Implied Repeal: When a new statute contains provisions that are inconsistent or
incompatible with existing law, it may be interpreted as repealing the earlier law to
the extent of the inconsistency.

 Operative Repeal: A new law comes into effect, making the old law redundant or
unnecessary.

4. Reasons for Repeal:

 Legal Obsolescence: Laws may become outdated, irrelevant, or inconsistent with

contemporary legal principles, leading to their repeal.

 Reform: Legislative bodies may repeal laws as part of broader legal reforms or to
streamline and simplify legal frameworks.

 Consolidation: Multiple statutes on the same subject may be consolidated into a

single comprehensive law, leading to the repeal of redundant or conflicting provisions.

5. Repeal and Saving Clauses:

 Saving Clause: A provision in a new law that explicitly saves the operation of certain
provisions of the repealed law. This is done to ensure continuity in areas where the
old law is still relevant.

 Repeal without a Saving Clause: If a new law does not include a saving clause, the
repeal may have the effect of entirely abolishing the legal provisions of the old law.

6. Repeal and Legal Consequences:

 Once a statute is repealed, its legal effects cease. However, legal consequences arising
from actions taken under the repealed law before its repeal generally remain valid.

7. Notice of Repeal:

 The repeal of a statute is typically communicated through official legal publications

and other channels to inform the public, legal professionals, and affected entities.

8. Effect on Legal Rights:

 Repeal does not affect legal rights that have already vested or actions that have been
initiated under the repealed law unless the repealing statute provides otherwise.
Legislative Material - Internal Aids -Parts of a statute and their function in interpretation of a statute
– Short and long titles, preamble, schedules, marginal headings, parts, and their captions, chapters
and their captions, marginal and section-headings, Definition‘s clause and types of definitions,
Explanations, exceptions, illustrations, and provisos, Language, and punctuation, non-obstante
clause and saving clause.

LEGISLATIVE MATERIAL

In order to understand any legislative enactment, that is, an Act, in its proper perspective, it is
necessary to read the entire enactment as a whole and not any isolated, part thereof. This makes each
portion of the enactment equally important, as each detail contributes in realising the significance of
the other provisions of the Act. For the sake of convenience and good order, every Act is divided into
various parts, called sections', sometimes, a section is further divided into sub- sections. A notable
exception is the Constitution of India, which is divided into Articles and not sections.

Explanation of the different parts of a statute Short title

The short title of the Act is the title by which the Act is known. It always appears at the beginning of
the Act. The short title includes the name by which the Act may be called, followed by the year in
which the Act was passed by the legislature, as for instance, the Indian Contract Act, 1872, or the
Special Marriage Act, 1954.

Long Title

The purpose for which the particular Act was enacted is reflected in the long title of the Act. This
generally appears after the date of assent. The object behind the Act is comprehensively stated in this
one-lined title. For instance, the long title of the Medical Termination of Pregnancy Act, is 'An Act to
provide for the termination of certain pregnancies by registered medical practitioners and for matters
connected therewith or incidental thereto.'

Preamble

The gist of the purpose behind passing a particular enactment can be easily understood by looking at
the Preamble of the Act. However all Acts do not have a Preamble. The Preamble follows the long title,
and summarises the intention of the legislature behind passing the Act or the need for passing it. A
Preamble generally begins with the words

'WHEREA When the meaning of a particular section is not clear, the Preamble can be relied

to throw some light on the exact connotation or meaning of the words used in that section. In the
words of Story, a Preamble is "a key to open the mind of its makers".

To take just one example, the Preamble to the Indian Contract Act, 1872, runs as under : "WHEREAS it
is expedient to define and amend certain parts of the law relating to contracts"

For a classic illustration of a long Preamble, one may refer to the Preamble to the Constitution of India.

1. Schedules:
  Function: Schedules contain supplementary information, lists, or details that support
or elaborate on the main provisions in the statute.

2. Marginal Headings:

 Function: Marginal headings offer brief summaries or descriptions of the content of

each section, aiding in navigation and understanding.

3. Parts and Their Captions:

 Function: Parts divide the statute into logical sections, often identified by Roman
numerals or letters, organizing the content for reference and comprehension.

4. Chapters and Their Captions:

 Function: Chapters are larger divisions within a statute, grouping related parts or
sections for a higher level of organization.

5. Marginal and Section Headings:

 Function: Marginal headings within the text of a section provide concise summaries,
aiding in understanding the content of each section.

6. Definition's Clause and Types of Definitions:

 Function: The definition's clause clarifies key terms in the statute, preventing
ambiguity. Definitions can be interpretation clauses, contextual, or specific.

7. Explanations, Exceptions, Illustrations, and Provisos:

 Function: These elements add specificity and clarity to statutory provisions.

Explanations provide additional details, exceptions exclude certain cases, illustrations
offer examples, and provisos set conditions or exceptions to a rule.

8. Language and Punctuation:

 Function: The language and punctuation used in statutes influence interpretation.

Courts consider the ordinary meaning of words and the grammatical structure.

9. Non-Obstante Clause and Saving Clause:

 Function: A non-obstante clause indicates that the provision to which it is attached

prevails over contrary provisions. A saving clause preserves the operation of certain
laws or rights despite the enactment of a new law.
External Aids - External Aids to the interpretation of a statute – Dictionaries, Translations,
Travaux Preparatiories, Statutes in pari materia, Contemporanea Exposito, Debates, and
Reports. explain in detail.
External aids to the interpretation of a statute are sources of information outside the statute itself that
can assist in understanding legislative intent and clarifying the meaning of statutory provisions. These
aids provide context, background, and insights that may not be explicitly stated within the text of the
law.

1. Dictionaries:

 Explanation: Ordinary language dictionaries provide definitions and meanings of words. Legal
dictionaries, like Black's Law Dictionary, offer definitions specific to legal terms.

 Function: Dictionaries help interpret the language used in the statute based on its common or
legal meaning at the time of enactment.

2. Translations:

 Explanation: If a statute is written in a language unfamiliar to the interpreter, translations help

in understanding the content accurately.

 Function: Translations ensure that the intended meaning of the statute is conveyed correctly,
especially in cases involving multilingual jurisdictions.

3. Travaux Preparatoires:

 Explanation: Travaux preparatoires refers to the preparatory work, such as committee reports,
debates, and drafts, leading to the enactment of a statute.

 Function: Examining travaux preparatoires provides insights into the legislative process,
discussions, and intentions behind the statute.

4. Statutes in Pari Materia:

 Explanation: "Statutes in pari materia" means statutes dealing with the same subject matter
or related issues.

 Function: Interpreting a statute in conjunction with related laws helps ensure consistency in
legal principles and avoids conflicting interpretations.

5. Contemporanea Exposito:

 Explanation: Contemporanea Expositio means contemporaneous exposition. It involves

considering how the law was understood or applied at the time of its enactment.

 Function: Examining how the law was interpreted or applied soon after its enactment provides
context for understanding its original meaning.

6. Debates:

 Explanation: Legislative debates involve discussions among lawmakers during the passage of
a bill into law.

 Function: Reviewing debates helps understand the rationale, arguments, and concerns raised
by legislators, shedding light on legislative intent.
7. Reports:

 Explanation: Reports from committees or commissions responsible for reviewing and

recommending legislation.

 Function: Reports can clarify the background, purpose, and policy considerations behind the
statute, aiding in interpretation.

Important Considerations:

 Hierarchy of Aids: Courts often prioritize aids in a hierarchy. The text of the statute remains
the primary source, and external aids are consulted if there is ambiguity or uncertainty.

 Admissibility: The admissibility of external aids can vary by jurisdiction. Some legal systems
have strict rules about when and how external aids can be considered in statutory
interpretation.

 Clear and Unambiguous Language: Where the language of the statute is clear and
unambiguous, courts may be reluctant to resort to external aids. However, if ambiguity exists,
external aids become more relevant.

 Judicial Discretion: The use of external aids is often at the discretion of the judiciary, and
courts may weigh different aids differently based on the context of the case.

Judicial material – Ratio and guidelines of courts in the following cases,

minority, and majority
judgements: 1. D.K. Basu v. State of West Bengal - AIR1997 SC610

D.K. Basu v. State of West Bengal is a landmark case in Indian jurisprudence, particularly in the context
of protecting the rights of individuals in police custody. The case involves the interpretation of
constitutional and statutory provisions to safeguard the rights of arrestees.

Case Background:

 Case Citation: D.K. Basu v. State of West Bengal, AIR 1997 SC 610

 Date of Judgment: December 18, 1996

 Bench: A.S. Anand, CJI and K. Venkataswami, J.

Ratio and Guidelines:

1. Rights of Arrestees:

 Ratio: The court emphasized that the right to life and personal liberty guaranteed
under Article 21 of the Constitution includes the right to be treated with dignity and
not to be subjected to torture or other cruel, inhuman, or degrading treatment during
arrest or detention.

 Guidelines: The court laid down specific guidelines to be followed by the police during
arrest and detention, including the mandatory recording of the memo of arrest,
informing the arrestee of their right to have a friend, relative, or legal counsel
informed, and ensuring medical examination after arrest.
 2. Legal Representation:

 Ratio: The court recognized the importance of legal representation during police
interrogation and emphasized the right to consult with a lawyer of the arrestee's
choice.

 Guidelines: The court directed that the arrestee has the right to consult with a lawyer
during interrogation, and this right must be communicated to them.

3. Detention Records:

 Ratio: The court highlighted the need for accurate and contemporaneous records of
detention, including the time of arrest, the name of the arresting officer, and the place
of detention.

 Guidelines: It mandated the preparation of a memo of arrest at the time of arrest, to

be attested by at least one witness. This memo should be countersigned by the
arrestee, creating a record of the arrest.

4. Medical Examination:

 Ratio: Recognizing the vulnerability of a person in police custody, the court stressed
the importance of medical examination to ensure their well-being.

 Guidelines: The court directed that the arrested person should be medically examined
every 48 hours during detention, and a copy of the medical report should be provided
to the arrestee.

Minority and Majority Judgments:

In the context of the D.K. Basu case, there was no minority judgment. The decision was unanimous,
delivered by Chief Justice A.S. Anand and Justice K. Venkataswami. The judgment represents a
consensus view of the bench on the rights and protections afforded to individuals in police custody.

The guidelines laid down in the D.K. Basu case have since become fundamental principles governing
the treatment of arrestees and detainees in India, and they serve as a benchmark for protecting the
rights of individuals during the process of arrest and detention.

M.C. Mehta V. Union of India - AIR1987SC965

The case of M.C. Mehta v. Union of India (1987) is a landmark environmental litigation case in India.
The case dealt with the issue of pollution in the Ganges River due to industrial and other activities.

Case Background:

 Case Citation: M.C. Mehta v. Union of India, AIR 1987 SC 965

 Date of Judgment: February 22, 1987

 Bench: Justice E.S. Venkataramiah and Justice Ranganath Misra

Facts of the Case:

1. Pollution in the Ganges:

  The case primarily focused on the pollution of the Ganges River, one of the holiest
rivers in India, due to industrial and other discharges.

2. PIL Filing:

 M.C. Mehta, an environmental lawyer, filed a Public Interest Litigation (PIL) seeking
court intervention to address the pollution issue and protect the river's environment.

3. Court's Intervention:

 The Supreme Court took suo motu cognizance of the matter and expanded the scope
of the case to address broader environmental issues.

Key Issues and Rulings:

1. Pollution Control Measures:

 Ruling: The court issued directives to industries to adopt pollution control measures
to prevent the discharge of harmful substances into the Ganges.

2. Closure of Industries:

 Ruling: In cases where industries failed to comply with pollution control measures, the
court ordered the closure of such industries.

3. Strict Liability Principle:

 Ruling: The court introduced the principle of absolute or strict liability, holding
industries strictly liable for environmental damage caused by their operations.

4. Creation of the Central Pollution Control Board (CPCB):

 Ruling: The court directed the creation of the CPCB to address pollution control at the
national level, emphasizing the importance of centralized efforts.

5. Environmental Audits:

 Ruling: The court introduced the concept of environmental audits, requiring industries
to undergo regular audits to assess their compliance with environmental standards.

6. Public Awareness:

 Ruling: The court emphasized the importance of public awareness and involvement in
environmental protection, urging citizens to actively participate in preserving the
environment.

Significance:

1. Setting Precedent:

 The M.C. Mehta case is considered a pioneering judgment in environmental

jurisprudence in India. It set a precedent for using PILs to address environmental
concerns and established strict liability for industries.

2. Shift in Legal Approach:

  The case marked a shift in the legal approach towards environmental protection,
emphasizing the need for preventive measures, accountability, and public
participation.

3. Creation of Legal Framework:

 The directives issued by the court led to the creation of a legal framework for
environmental protection, with the CPCB playing a crucial role in monitoring and
enforcing environmental standards.

The M.C. Mehta case is an important milestone in the development of environmental law in India and
has had a lasting impact on the legal and regulatory landscape concerning environmental issues.

Vishakha v. State of Rajasthan - AIR1997SC3011

Vishakha and Others v. State of Rajasthan (1997) is a landmark case in Indian jurisprudence that
addressed the issue of sexual harassment at the workplace. The judgment laid down guidelines to
prevent and address sexual harassment and contributed to the establishment of a safe working
environment for women.

Case Background:

 Case Citation: Vishakha and Others v. State of Rajasthan, AIR 1997 SC 3011

 Date of Judgment: August 13, 1997

 Bench: Chief Justice J.S. Verma, Justice Sujata V. Manohar, and Justice B.N. Kirpal

Facts of the Case:

1. Incident of Sexual Harassment:

 The case originated from a writ petition filed by several social activists on behalf of
Bhanwari Devi, a social worker who faced sexual harassment while working in a rural
development program in Rajasthan.

2. Failure of Legal Protections:

 Bhanwari Devi's case highlighted the absence of legal provisions addressing sexual
harassment at the workplace. The incident brought attention to the need for legal
safeguards for women in the workplace.

Key Issues and Rulings:

1. Constitutional Violation:

 Ruling: The Supreme Court held that the incident of sexual harassment violated the
constitutional rights of Bhanwari Devi, particularly her right to equality (Article 14) and
right to life and liberty (Article 21).

2. Guidelines for Prevention of Sexual Harassment:

  Ruling: Recognizing the absence of legislation on the subject, the court issued
comprehensive guidelines to prevent and address sexual harassment at the
workplace. These guidelines became known as the "Vishakha Guidelines."

3. Definition of Sexual Harassment:

 Ruling: The court defined sexual harassment broadly, including unwelcome sexually
determined behavior, physical contact, and advances, and also addressed situations
creating a hostile or intimidating work environment.

4. Duty of Employers:

 Ruling: The court imposed a duty on employers to prevent and deter acts of sexual
harassment. Employers were required to create mechanisms for complaint redressal
and take action against offenders.

5. Legal Duty:

 Ruling: The court held that employers have a legal duty to ensure a safe working
environment for women, and the failure to discharge this duty would result in legal
consequences.

6. Internal Complaints Committee (ICC):

 Ruling: The court recommended the establishment of Internal Complaints

Committees (ICCs) in workplaces to handle complaints of sexual harassment. The ICC
is mandated to conduct inquiries and recommend action.

7. Non-Compliance Consequences:

 Ruling: Non-compliance with the Vishakha Guidelines may result in legal

consequences for employers, including potential liability for damages.

Impact and Significance:

1. Legal Framework:

 The Vishakha judgment laid the foundation for addressing sexual harassment in the
absence of specific legislation. It played a pivotal role in shaping subsequent laws such
as the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act, 2013.

2. Awareness and Implementation:

 The judgment raised awareness about the issue of sexual harassment and prompted
organizations to implement preventive measures. It facilitated a cultural shift toward
recognizing and addressing workplace harassment.

3. Vishakha Guidelines:

 The Vishakha Guidelines provided a template for employers to create policies and
mechanisms for addressing sexual harassment, serving as a reference for workplaces
across the country.

4. Legal Precedent:
  The case set a legal precedent for addressing gender-based discrimination and
harassment, emphasizing the constitutional rights of women in the workplace.

The Vishakha case is considered a watershed moment in the legal recognition and response to sexual
harassment in India. It marked a significant step toward creating a safer and more inclusive working
environment for women.

Joseph Shine v. Union of India - AIR2018SC4898

The case of Joseph Shine v. Union of India - AIR2018SC4898 was a landmark judgement delivered by
the Supreme Court of India on September 27, 2018. The case challenged the constitutional validity of
Section 497 of the Indian Penal Code (IPC), which criminalized adultery, and Section 198(2) of the Code
of Criminal Procedure (CrPC), which restricted the right to file a complaint for adultery to the husband
of the adulteress. The case was filed by Joseph Shine, a non-resident Keralite, who argued that these
provisions violated the fundamental rights of equality, dignity, privacy, and personal liberty guaranteed
by Articles 14, 15, 19, and 21 of the Constitution of India.

The Supreme Court, by a unanimous decision of a five-judge bench, struck down Section 497 of the
IPC and Section 198(2) of the CrPC as unconstitutional. The court held that these provisions were based
on the archaic and patriarchal notions of marriage, where the wife was considered as the property of
the husband, and the husband had the sole right to protect her chastity and fidelity. The court also
held that these provisions discriminated against women and men on the basis of their gender and
marital status, and violated their autonomy and consent in matters of sexuality and intimacy. The court
also held that these provisions were arbitrary and irrational, as they did not criminalize adultery in all
circumstances, but only when the husband did not consent or connive to it. The court also held that
these provisions were not in the public interest, as they did not serve any legitimate state purpose,
but rather intruded into the private sphere of the individuals and the couples.

The court, in its judgement, relied on various precedents, principles, and authorities, both national
and international, to support its reasoning and conclusions. The court also referred to the changing
social and moral values, and the evolving concept of marriage and relationships, to justify its decision.
The court also clarified that its judgement did not legalize or encourage adultery, but only
decriminalized it, and that adultery could still be a ground for divorce or other civil remedies under the
relevant laws. The court also observed that its judgement was in consonance with the constitutional
vision of a progressive and egalitarian society, where the rights and dignity of all individuals are
respected and protected.

The ratio and guidelines of the court in this case can be summarized as follows:

 Section 497 of the IPC and Section 198(2) of the CrPC are unconstitutional and void, as they
violate Articles 14, 15, 19, and 21 of the Constitution of India.

 Adultery is not a criminal offence, but a civil wrong, which can be dealt with under the
matrimonial laws or other civil laws.

 Adultery is a matter of personal choice and consent, which cannot be regulated or penalized
by the state, unless it affects the public order, morality, or health.

 Adultery does not affect the sanctity or stability of marriage, but rather reflects the breakdown
or dissatisfaction of the marital relationship, which can be addressed by other means.

 Adultery cannot be based on the gender or marital status of the parties, but on the nature and
quality of the relationship between them.
  Adultery cannot be treated as a violation of the rights of the husband or the wife, but as a
violation of the rights of the individual or the couple.

The judgement of the court was delivered by a five-judge bench, comprising Chief Justice Dipak Misra,
and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra. The judgement was
divided into four separate but concurring opinions, written by Chief Justice Misra (for himself and
Justice Khanwilkar), Justice Nariman, Justice Chandrachud, and Justice Malhotra. The majority
judgement was written by Chief Justice Misra, which was endorsed by Justice Khanwilkar. The minority
judgements were written by Justice Nariman, Justice Chandrachud, and Justice Malhotra, which
agreed with the majority judgement on the outcome and the main issues, but differed on some aspects
of the reasoning and the analysis.

Aruna Shanbaug v. Union of India – AIR2011SC1290

Aruna Shanbaug v. Union of India is a landmark case in Indian legal history that dealt with the sensitive
and complex issues surrounding euthanasia and the right to die with dignity. The case was heard by
the Supreme Court of India.

Case Background:

 Case Citation: Aruna Shanbaug v. Union of India, AIR 2011 SC 1290

 Date of Judgment: March 7, 2011

 Bench: Justices Markandeya Katju and Gyan Sudha Misra

Facts of the Case:

1. Aruna Shanbaug's Condition:

 Aruna Shanbaug was a nurse working at King Edward Memorial Hospital in Mumbai.
In 1973, she was brutally assaulted and sexually assaulted by a hospital staff member,
leading to severe brain damage.

2. Persistent Vegetative State (PVS):

 As a result of the assault, Aruna Shanbaug was left in a persistent vegetative state
(PVS) for several decades. She was being cared for at the hospital.

3. PIL for Euthanasia:

 In 2009, journalist Pinki Virani filed a Public Interest Litigation (PIL) seeking permission
for euthanasia on behalf of Aruna Shanbaug, arguing that her continued existence in
a vegetative state was akin to a living death.

Key Issues and Rulings:

1. Euthanasia and Passive Euthanasia:

 Ruling: The court distinguished between active euthanasia (intentional administration

of lethal substances to end a patient's life) and passive euthanasia (withdrawal or
withholding of medical treatment with the intention of causing the patient's death).
The court allowed passive euthanasia under certain conditions.
 2. Guardianship and Best Interests:

 Ruling: The court appointed the hospital staff as Aruna Shanbaug's guardians and held
that any decision related to her treatment should be based on her best interests.

3. Legalization of Passive Euthanasia:

 Ruling: The court held that passive euthanasia could be allowed under strict
safeguards and specific guidelines. It emphasized the need for a high-level medical
board's decision, consent from family members, and approval from the jurisdictional
court.

4. PIL Dismissed:

 Ruling: The court dismissed the PIL filed by Pinki Virani seeking permission for active
euthanasia, stating that only passive euthanasia was allowed under the
circumstances.

Significance:

1. Legal Framework for Euthanasia:

 The Aruna Shanbaug case laid down a legal framework for the passive euthanasia of
patients in a persistent vegetative state, setting guidelines for making decisions in the
best interests of the patient.

2. Right to Die with Dignity:

 The judgment affirmed the right of individuals to die with dignity and provided legal
recognition to the concept of living wills, allowing individuals to express their desire
for the withdrawal of life support in certain situations.

3. Ethical and Moral Considerations:

 The case raised important ethical and moral considerations regarding the end-of-life
decisions, medical treatment, and the quality of life in cases of severe disability.

4. Precedent for Future Cases:

 The judgment became a precedent for future cases involving euthanasia and end-of-
life decisions, providing a legal framework for addressing complex and sensitive issues.

The Aruna Shanbaug case marked a significant development in Indian jurisprudence, addressing the
right to die with dignity and establishing guidelines for passive euthanasia.

Young Lawyers Association v. the State of Kerala – AIR2018SC1690

Young Lawyers Association v. the State of Kerala – AIR2018SC1690 is a case decided by the Supreme
Court of India in 2018. It concerned the constitutional validity of the custom and practice of prohibiting
women of menstruating age (10 to 50 years) from entering the Sabarimala temple, a Hindu shrine
dedicated to Lord Ayyappa, in Kerala. The case involved the issues of whether the custom and practice
violated the fundamental rights of women to equality, dignity, freedom of religion, and non-
discrimination, and whether the temple had the right to manage its own affairs in matters of religion.

The Supreme Court, by a 4:1 majority, struck down the custom and practice as unconstitutional and
discriminatory. The court held that the custom and practice violated Articles 14, 15, 19, 21, and 25 of
the Constitution of India, which guarantee the rights to equality, liberty, and freedom of religion. The
court also held that the temple did not have the right to claim the status of a separate religious
denomination, and that the custom and practice was not an essential part of the Hindu religion. The
court also held that the custom and practice was based on the patriarchal and stereotypical notions of
purity and impurity, and that it infringed the dignity and autonomy of women.

The judgement of the court was delivered by a five-judge bench, comprising Chief Justice Dipak Misra,
and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra. The judgement was
divided into four separate but concurring opinions, written by Chief Justice Misra (for himself and
Justice Khanwilkar), Justice Nariman, Justice Chandrachud, and Justice Malhotra. The majority
judgement was written by Chief Justice Misra, which was endorsed by Justice Khanwilkar. The minority
judgement was written by Justice Malhotra, who dissented from the majority and upheld the custom
and practice as a matter of faith and religious freedom.

The case of Young Lawyers Association v. the State of Kerala – AIR2018SC1690 is considered to be a
landmark case in the field of human rights law, especially for the protection of the rights of women
and the promotion of gender justice. The case challenged the age-old custom and practice that
discriminated against women on the basis of their biological and physiological features, and that
denied them the right to worship and enter a place of their choice. The case also affirmed the principle
that the right to equality and non-discrimination prevails over the right to freedom of religion, and
that the state has the duty to protect the rights of all individuals and groups from any form of
oppression or exclusion. The case influenced the subsequent development of the legal and policy
framework on women’s rights and religious freedom in India and other countries.

MODULE 4:

Rules of interpretation of Statutes – Literal

Literal interpretation is one of the rules of statutory interpretation, which guides how courts
understand and apply the language of a statute. The literal rule emphasizes giving words in a
statute their ordinary and natural meaning.
Literal Rule of Interpretation:
1. Plain Meaning:
 Principle: The literal rule requires that the words of a statute be given their
plain, ordinary, and grammatical meaning. The court interprets the statute
based on what the words commonly mean.
2. No Extension or Modification:
 Principle: Courts do not extend or modify the language of the statute. If the
words are clear and unambiguous, the court does not add, subtract, or alter
them.
3. Literal Application:
 Principle: The court applies the statute exactly as written, even if the outcome
seems harsh or unjust. The focus is on the literal application of the law.
4. Avoiding Presumptions:
 Principle: The literal rule avoids relying on presumptions about legislative
intent or considering the consequences of a particular interpretation. Instead,
it prioritizes the plain language of the statute.
5. Use of Dictionaries:
 Principle: Courts may refer to dictionaries to understand the ordinary meaning
of words if there is any ambiguity or if a term is not commonly known.
6. Strict Interpretation:
 Principle: The literal rule is associated with a strict or formalistic approach to
interpretation. It limits judicial discretion and ensures fidelity to the text of the
law.
Criticisms and Limitations:
1. Rigidity:
 Critics argue that a strict adherence to the literal rule can result in rigidity and
fail to address the underlying purpose or intention of the legislature.
2. Ambiguity and Absurdity:
 In cases of ambiguity or where a literal interpretation leads to an absurd result,
courts may depart from the literal rule.
3. Evolution of Language:
  The literal rule may not account for changes in language over time. Words or
phrases that were clear at the time of enactment may acquire different
meanings.
4. Context and Purpose:
 Critics argue that statutes should be interpreted in context, considering the
purpose and intention of the legislature, rather than relying solely on the literal
meaning of words.
Application Example:
Consider a statute that states "no vehicles in the park." The literal interpretation would mean
that no motorized vehicles are allowed. However, if the purpose of the statute is to prevent
any kind of vehicle, including bicycles, from entering the park, a court may depart from the
literal rule and consider the broader context.
While the literal rule is an important principle in statutory interpretation, courts often balance
it with other rules, such as the mischief rule, the golden rule, and the purposive approach, to
ensure a more nuanced and contextually sensitive interpretation of statutes.

Mischief and Golden rule of interpretation Secondary Rules or Subsidiary Rules of

Interpretation
The mischief rule and the golden rule are secondary or subsidiary rules of interpretation used by courts
when the primary rule, such as the literal rule, leads to absurd results or fails to capture the legislative
intent effectively. Both rules aim to achieve a more purposive and pragmatic interpretation of statutes.

Mischief Rule:

1. Purposeful Interpretation:

 Principle: The mischief rule involves determining the "mischief" or problem that the
statute was designed to remedy.

2. Historical Context:

 Principle: Courts look into the historical context and the state of the law before the
enactment of the statute to understand the problem or mischief the legislature
intended to address.

3. Remedial Approach:

 Principle: The court interprets the statute in a way that suppresses the mischief and
advances the remedy intended by the legislature.

4. Broad Interpretation:

 Principle: The mischief rule allows for a broader interpretation of the statute to
achieve its intended purpose, even if it deviates from the literal meaning of the words.

Golden Rule:
 1. Avoiding Absurdity:

 Principle: The golden rule allows a departure from the literal meaning of words when
a strict adherence to the literal rule would lead to an absurd or unreasonable result.

2. Reasonable Interpretation:

 Principle: The court interprets the statute in a manner that avoids the absurdity while
still adhering to the overall purpose and intention of the legislature.

3. Narrow Application:

 Principle: The golden rule is applied more narrowly than the mischief rule. It is invoked
primarily when the literal interpretation would lead to a result that is so unreasonable
that it cannot have been intended by the legislature.

Distinctions:

1. Scope:

 Mischief Rule: Focuses on identifying and remedying the mischief or problem that the
statute was meant to address.

 Golden Rule: Focuses on avoiding absurd or unreasonable outcomes while still

adhering to the overall purpose of the statute.

2. Historical Context:

 Mischief Rule: Involves an examination of the historical context and the problem the
legislature sought to solve.

 Golden Rule: Less concerned with historical context and more focused on the
immediate language of the statute and its purpose.

3. Interpretive Approach:

 Mischief Rule: Allows for a broad and purposive interpretation to address the
identified mischief.

 Golden Rule: Allows for a departure from the literal meaning but applies a more
restrictive approach compared to the mischief rule.

Noscitur a Sociis, Ejusdem Generis, Reddando Singula Singulis

"Noscitur a Sociis," "Ejusdem Generis," and "Reddendo Singula Singulis" are Latin legal maxims that
are used as rules of interpretation to guide courts in understanding the meaning of words and phrases
within a statute.

1. Noscitur a Sociis:

 Meaning: "Noscitur a Sociis" translates to "it is known by its associates."

 Principle: This maxim suggests that the meaning of a word can be understood by the words
with which it is associated in a statute.
  Application: When a term is ambiguous, courts look at the context and the words surrounding
it to determine its meaning.

 Example: If the term "vehicle" appears in a statute with words like "car," "bus," and "truck," it
may be interpreted to include motorized modes of transportation.

2. Ejusdem Generis:

 Meaning: "Ejusdem Generis" means "of the same kind or nature."

 Principle: This rule is applied when a general term follows specific terms in a list. It suggests
that the general term should be interpreted to include only things of the same kind or nature
as the specific terms.

 Application: Prevents the general term from being interpreted too broadly.

 Example: If a law refers to "vehicles, such as cars, buses, and trucks," and then uses the term
"vehicle" again, the term "vehicle" would be limited to similar motorized modes of
transportation.

3. Reddendo Singula Singulis:

 Meaning: "Reddendo Singula Singulis" translates to "by attributing each to each."

 Principle: This rule is applied when a list of words is followed by a description, and each word
in the list should be read with its corresponding part of the description.

 Application: Ensures that each word in the list is associated with the appropriate element in
the description.

 Example: If a statute says, "apples, oranges, and other fruits that are red," "apples" should be
associated with "red" and "oranges" should be associated with "red."

Common Application:

These maxims are often used together to interpret statutes and contracts where there is ambiguity or
uncertainty. By considering the context, the associated words, and the specific nature of the terms
used, courts aim to ascertain the legislative or contractual intent and ensure a more accurate and just
interpretation.

Interpretation with reference to the subject matter and purpose – Restrictive

and beneficial construction
Interpretation with reference to the subject matter and purpose is a fundamental principle in statutory
interpretation. This principle involves examining the broader context, purpose, and objectives of a
statute to understand and give effect to the legislative intent. Within this context, two important
approaches are "restrictive construction" and "beneficial construction."

1. Restrictive Construction:

 Principle: Restrictive construction involves interpreting a statute narrowly or in a limited

manner.
  Application: This approach is employed when the language of the statute is ambiguous or
capable of multiple interpretations.

 Purpose: The goal is to limit the scope of the statute to avoid unintended consequences or to
adhere closely to the literal meaning of the words used.

 Example: If a statute grants certain powers to an authority but does not explicitly define those
powers, a court applying restrictive construction may limit the authority's powers to only what
is expressly stated in the statute.

2. Beneficial Construction:

 Principle: Beneficial construction involves interpreting a statute broadly or in a manner that

promotes its underlying purpose and objectives.

 Application: This approach is used when the literal interpretation may lead to an absurd result
or frustrate the legislative intent.

 Purpose: The aim is to give effect to the overall purpose and policy behind the statute, even if
it requires departing from the strict literal meaning of the words.

 Example: If a social welfare statute is intended to benefit a specific group, a court applying
beneficial construction may interpret the statute broadly to include those who are within the
spirit of the law, even if they do not precisely meet the statutory criteria.

Importance of Context and Purpose:

 Legislative Intent: The primary goal of both restrictive and beneficial construction is to
ascertain and give effect to the legislative intent.

 Avoiding Absurdity: Beneficial construction is particularly important in preventing absurd or

unjust results that may arise from a strict and narrow interpretation.

 Contextual Analysis: Both approaches emphasize the importance of considering the broader
context, the subject matter of the statute, and the legislative purpose to arrive at a reasonable
and just interpretation.

Balancing Act:

Courts often engage in a balancing act between restrictive and beneficial construction, considering the
language of the statute, the legislative history, and the practical consequences of various
interpretations. The ultimate goal is to achieve a reasonable and harmonious construction that aligns
with the legislature's objectives.