- Biological Inventions
- BRAND VALUATION
- Comparative Advertisement
- Copyright Infringement
- Copyright Litigation
- Digital Marketing Rights
- Geographical Indication
- Indian Patents Act
- Intellectual Property
- Interim Injunction
- IP Commercialization
- IP Licensing
- IP Litigation
- IP Practice in India
- IPAB Decisions
- Legal Issues
- Net Neutrality
- News & Updates
- Patent Commercialisation
- Patent Cooperation Treaty
- patent infringement
- Patent Licensing
- Patent Litigation
- Patent Opposition
- Patent Prosecution
- Patent Rule Amendment
- Patent Term Extension
- Punitive Damages
- Section 3(D)
- section 64
- South-east Asia
- Technology Transfer
- Trademark Litigation
A legal maxim is an established principle or proposition of law or a legal policy usually stated in latin form. Most of these Latin maxims originated from the Medieval era in the European states that used Latin as their legal language. These principles guides Courts all over the world in applying the existing laws in a fair and just manner to enable the Courts in deciding issues before it. Such principles don’t have the authority of law but when Courts apply the maxims in deciding issues of law or the legislature incorporates such maxims while framing laws, they take the form of law and form the basis of sound judgements.
Few of the legal maxims which are followed by Courts in India are as follows:
1. Ab initio – From the very beginning of the law/ act it was bad. Such a term is used in reference to law, agreements, a deed executed between parties, marriage etc. If something is said to be void ab initio, the thing was never created or void to begin with.
- SC used the latin term “ab initio” to arrive at a conclusion that the proceedings were ab initio defective as they could not have been instituted since the firm in whose name the proceedings were instituted was not registered at the date of the institution of the proceedings – Delhi Development Authority Vs Kochhar Construction Work & Ors., MANU/SC/1279/1998: 1998 (8) SCC 559.
- Void marriages are void ab initio which means that in the eye of law that marriage has never come into being – Manjeet Singh Vs Parson Kaur, MANU/PH/0220/1990.
- Transactions of the sale made during the pendency of the proceedings were held to be wholly illegal and void ab initio in law and therefore the same were held to be not sustainable in law – R. Rajashekar & Ors. Vs Trinity House Building Co-operative Society & Ors., MANU/SC/1005/2016: AIR 2016 SC 4329: 2016 (16) SCC 46.
- A purchaser after notification under Section 4 of the Land Acquisition Act, 1894 does not acquire any right in the land as the sale is ab initio void and has no right to claim land under the Policy – Shiv Kumar & Ors. Vs Union of India (UOI) & Ors., MANU/SC/1407/2019: AIR 2019 SC 5374: 2019 (10) SCC 229.
2. Actus Dei Nemini Injuriam – law holds no man responsible for the Act of God.
- Court held strike to be an act of god and held the maxim Actus Dei Nemini Facit Injuriam squarely applicable to such cases. Court further stated that in abnormal situations like strike in question, which can hardly be resisted by any litigant by applying any amount of skill or ability of his own, the courts should not insist for strict adherence to the procedural law so as to prejudice the interest of such litigants. In legal sense such incidents are well covered by the expression “Acts of God.” – Mali Ram Mahabir Prasad Vs Shanti Debi & Ors., MANU/BH/0010/1992: AIR 1992 PAT 66.
3. Actio Personalis Moritur Cum Persona – A personal right of action dies with the person.
- Supreme Court held that the maxim “actio personalis moritur cum persona” – a personal action dies with the person – has a limited application – operates in a limited class of actions such as:
- actions for damages for defamation,
- actions for assault or
- actions for other personal injuries not causing the death of the party,
- and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory.
It was held that an action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory – Girja Nandini Devi & Ors. Vs Bijendra Narain Choudhury, MANU/SC/0287/1966: AIR 1967 SC 1124: 1967 (1) SCR 93.
- Save and except the personal cause of action which dies with the deceased on the principle of “action personal is moritur cum persona” i.e. a personal cause of action dies with the person, all the rest of causes of action which have impact on proprietary rights and socio legal status of the parties cannot be said to have died with such a person – Yallawa Vs Shantavva, MANU/SC/0016/1997: AIR 1997 SC 25: 1997 (11) SCC 159.
- In the event of the death of the executor of a will, the maxim actio personalis moritur cum persona does not apply to probate proceedings initiated by the executor before his death. An executor in applying for probate is not fighting a personal action but fighting for the interests of all the beneficiaries under the will and that therefore the action of an executor in applying for a probate is not in substance a personal action. If the executor fails in his duty, any of those whom he represents are entitled to intervene and carry on the proceedings with a formal modification’ that the prayer must then be for letters of administration with the will annexed – Vatsala Srinivasan Vs Shyamala Raghunathan, MANU/SC/0498/2016: 2016 (13) SCC 253.
- It was held that a decree for injunction can also be executed against legal representatives of the deceased judgment-debtor. It further stated that “The maxim “actio personalis moritur cum persona” is limited to certain class of cases… and when the right litigated upon is heritable, the decree would not normally abate and can be enforced by LRs. of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment-debtor when the cause and injunction survives – Prabhakara Adiga Vs Gowri & Ors., MANU/SC/0183/2017: AIR 2017 SC 1061: 2017 (4) SCC 97.
4. Actus Curiae Neminem Gravabit – An Act of the Court shall prejudice no man –
- This principle has been held to be fundamental to the system of justice and application to Indian Jurisprudence – that no man should suffer because of the fault of the court or delay in the procedure – Busching Schmitz Private Limited Vs P.T. Menghani & Ors., MANU/SC/0344/1977: AIR 1977 SC 1569: 1977 (2) SCC 835.
- A 3 Judge bench of Supreme Court held that if the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. It further went on to say that “there is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: Actus curiae neminem gravabit; Thus, in view of the mistake of the District Court which needed to be righted, the parties were relegated to the position they occupied when the error was committed by the Court, which error was rectified by SC nunc pro tunc. Jang Singh Vs Brijlal & Ors., AIR 1966 SC 1631: 1964 (2) SCR 145.
- Supreme Court used the legal phrase “actus curiae neminem gravabit” in support of its conclusion that the legislature could not have intended to put a period of limitation on the act of the court of taking cognizance of an offence so as to defeat the case of the complainant – Bharat Damodar Kale & Ors. Vs State of A.P., MANU/SC/0794/2003: AIR 2003 SC 4560: 2003 (8) SCC 559.
- Supreme Court held that the maxim “actus curiae neminem gravabit” formed the basis of the principle of rectification of decree under Section 152 of Code of Civil Procedure whereby any error occurring in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the Court. After considering plethora of case laws, it laid down certain situations in which the Court can invoke the said maxim:-
- In a matter where it is clear that something which the Court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake.
- But before exercise of such power the Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits something which was intended to be otherwise i.e. to say that while passing the decree the court must have in its mind that the order or the decree should be passed on a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip.
- The facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does not mention in the order or the judgment or something which was intended to be there stands added to it.
- The power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the matter and to find that a better order or decree could or should be passed. There should not be re-consideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification.
Jayalakshmi Coelho Vs Oswald Joseph Coelho, MANU/SC/0145/2001: AIR 2001 SC 1084: 2001 (4) SCC 181..
- Court held that no one shall suffer by an act of the Court. The factor attracting the applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the court; the test is whether an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party suffering an impoverishment which it would not have suffered but for the order of the Court and the act of such party. There is nothing wrong in the parties demanding to be placed in the same position in which they would have been had the Court not intervened by its interim order, when at the end of the proceedings, the Court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the Court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the Court would be restored to or conferred on the party by suitably commanding the party liable to do so. Thus the Court held the successful party to be entitled to compensation in terms of money at the end of litigation – South Eastern Coalfields Ltd. Vs State of M.P. & Ors., AIR 2003 SC 4482: 2003 (8) SCC 648: 2003 Supp 4 SCR 651.
- Supreme Court applied the effect of the maxim in criminal law as well and used it as one of the guiding principles to interpret Section 468 of the Code of Criminal Procedure to conclude that the said provision is made for condonation of delay and thus treated the date of filing of complaint or date of initiation of proceedings as the relevant date for computing limitation. The Court further stated that the court’s inaction in taking cognizance i.e. court’s inaction in applying mind to the suspected offence should not be allowed to cause prejudice to a diligent complainant – Sarah Mathew Vs Institute of Cardio Vascular Diseases and Ors., 2014 (2) SCC 62: AIR 2014 SC 448: 2014 (2) SCC 62.
- In situations where interim orders have been passed and ultimately petition/ suit dismissed as being frivolous or devoid of any merit, Supreme Court was of the view that “no litigant can derive any benefit from the mere pendency of a case in a Court of Law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the Court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim “Actus Curiae neminem gravabit”, which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court – Kalabharati Advertising Vs Hemant Vimalnath Narichania and Ors., AIR 2010 SC 3745: 2010 (9) SCC 437: 2010 (10) SCR 971.
- Supreme Court cautioned against use of the maxim “actus curiae neminem gravabit”. It stated “the legal maxim that has been taken recourse to cannot operate in a vacuum. It has to get the sustenance from the facts. As is manifest, after the admissions were over as per the direction of this Court, the Appellants, who seemed to have resigned to their fate, woke up to have control over the events forgetting that the law does not assist the non-vigilant. One cannot indulge in luxury of lethargy, possibly nurturing the feeling that forgetting is a virtue, and thereafter, when the time has slipped through, for it waits for none, wake up and take shelter under the maxim “actus curiae neminem gravabit”. It is completely unacceptable.” Court thus declined to come to the rescue of such lethargic party – Neeraj Kumar Sainy And Ors. Vs State of U.P. & Ors., MANU/SC/0283/2017: AIR 2017 SC 1524: 2017 (14) SCC 136: 2017 (3) SCALE 583.
- Supreme Court relied upon the said maxim to arrive at a conclusion that since the interim order was passed at the instance of the Respondent, the Appellant should be permitted to retain the amount and complete the process by providing opportunity to the private Respondents. The Court went on to say that when it is prima-facie indicated that due to the delay caused at the instance of the private Respondents the value of the Kendu leaves had reduced, thereby causing loss, in view of legal proceedings initiated by the private Respondents, the Court will have to bear in mind the maxim actus curiae neminem gravabit, namely, no party should suffer due to the act of Court – Odisha Forest Development Corporation Ltd. Vs Anupam Traders & Ors., MANU/SC/1643/2019: 2019 (17) SCALE 531.
5. Actori incumbit onus probandi – the burden of proof lies on the plaintiff
- The cardinal principle of law of evidence is that “Actori incumbit onus probandi” – The burden of proof rests upon the plaintiff – Indra Raja & Ors. Vs John Yesurethinam, MANU/TN/4369/2011.
6. Actio personalis moritur cum persona – a personal action dies with the person
- This rule operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for property received by him does not therefore affect the liability of his estate – Girja Nandini Devi & Ors. Vs Bijendra Narain Choudhury, MANU/SC/0287/1966: AIR 1967 SC 1124: 1967 (1) SCR 93.
- Save and except the personal cause of action which dies with the deceased on the principle of actio personalis moritur cum persona i.e. a personal cause of action dies with the person, all the rest of the causes of action which have an impact on proprietary rights and socio-legal status of the parties cannot be said to have died with such a person – Smt. Yallawwa Vs Smt. Shantavva, MANU/SC/0016/1997: (1997) 11 SCC 159.
- Decree for injunction can also be executed against legal representatives of the deceased judgment-debtor. The maxim “actio personalis moritur cum persona” is limited to certain class of cases as indicated by this Court in Girijanandini Devi v. Bijendra Narain Choudhary and when the right litigated upon is heritable, the decree would not normally abate and can be enforced by LRs. of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment-debtor when the cause and injunction survives. No doubt, it is true that a decree for injunction normally does not run with the land. In the absence of statutory provisions it cannot be enforced. However, in view of the specific provisions contained in Section 50 Code of Civil Procedure, such a decree can be executed against legal representatives – Prabhakara Adiga Vs Gowri & Ors., MANU/SC/0183/2017: AIR 2017 SC 1061.
7. Actus Non Facit Reum Nisi Mens Sit Rea – The intent and act must both concur to constitute the crime
- Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively – R.Balakrishna Pillai Vs State of Kerala, MANU/SC/0212/2003: 2003 (9) SCC 700: 2003 (2) SCR 436.
- To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosi nulla voluntus est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behavior – State of Rajasthan Vs Shera Ram, MANU/SC/1428/2011: AIR 2012 SC 1: 2012 (1) SCC 602.
- Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that their can be no crime without a guilty mind. To make a person criminally accountable it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively – C.K. Jaffer Sharief Vs State (Through CBI), MANU/SC/0960/2012: AIR 2013 SC 48: 2013 (1) SCC 205.
- Court relying on Halsbury Laws of England held that in general a person does not incur criminal liability unless he intended to bring about, or recklessly brought about, those elements which constitute the crime which is traditionally expressed in maxim “actus non facit reum nisi mens sit rea”. Enforcement of a right and seeking remedy are two distinct facets. It should not be confused – Subramanian Swamy Vs Union of India (UOI) and Ors., MANU/SC/0621/2016: AIR 2016 SC 2728: 2016 (7) SCC 221.
8. Allegiants Contrarie Non Est Audiendus – He is not be heard who alleges things contradictory to each other. The principle Estoppel used in the Indian jurisprudence is based on this maxim.
- Supreme Court was of the view that if a man either by words or by his conduct intimates that he consents to an act, he cannot question the legality of the act to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct. This Estoppel was held to be based on the maxim, allegiants contraire no est audiendus (a party is not be heard to allege the contrary) – B.L.Sreedhar & Ors. Vs K.M. Munireddy (Dead) & Ors., MANU/SC/1101/2002: AIR 2003 SC 578: 2003 (2) SCC 355.
- Conditions of a contract cannot be altered/avoided on presumptions or assumptions or the parties having a second thought that a term of contract may not be beneficial to them at a subsequent stage. They would have to abide by the existing facts, correctness of which, they can hardly deny. Such conduct, would be hit by allegans contraria non est audiendus – Transmission Corporation of Andhra Pradesh Ltd. & Ors. Vs Sai Renewable Power Pvt. Ltd. & Ors., MANU/SC/0486/2010: 2011 (11) SCC 34: 2010 (8) SCR 636.
- Court applied the well-established rule of law and equity principle of estoppel to hold that a person is not entitled to do what is commonly known as blowing hot and cold. It further went on to hold that the maxim allegans contraria non est audiendus is incorporated in S. 115 of the Evidence Act – Chhotey Lal Kasera Vs Kanhaiya Lal Kasera, MANU/UP/3310/2014.
9. Animus Possidendi – intention to possess
- Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence – Saroop Singh Vs Banto & Ors., MANU/SC/1146/2005: AIR 2005 SC 4407: 2005 (8) SCC 330.
- Animus possidendi is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title but the possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title – Annakili Vs A. Vedanayagam & Ors., MANU/SC/8027/2007: AIR 2008 SC 346: 2007 (14) SCC 308; For claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi – Vishwanath Bapurao Sabale Vs Shalinibai Nagappa Sabale & Ors., MANU/SC/0442/2009: 2009 (12) SCC 101: 2009 (5) JT 395 (SC).
- It is well-settled that mere possession of the land, however long it may be, would not ripe into possessory title unless the possessor has ‘animus possidendi‘ to hold the land adverse to the title of the true owner. It is true that assertion of title to the land in dispute by the possessor would, in an appropriate case, be sufficient indication of the animus possidendi to hold averse to the title of the true owner. But such an assertion of title must be clear and unequivocal though it need not be addressed to the real owner. For reckoning the statutory period to perfect title by prescription both the possession as well as the animus possidendi must be shown to exist. Where, however, at the commencement of the possession there is no animus possidendi the period for the purpose of reckoning adverse possession will commence from the date when both the actual possession and assertion of title by the possessor are shown to exist. The length of possession to perfect title by adverse possession as against the government is 30 years – Konda Lakshmana Bapuji Vs Government of Andhra Pradesh & Ors., MANU/SC/0066/2002: AIR 2002 SC 1012.
10. Assignatus utitur jure auctoris – an assignee is clothed with the rights of his principal
- A leading rule concerning alienations and forfeitures is “assignatus utitur jure auctoris” – an assignee is clothed with the rights of his principal – K. Subbanna Rai Vs Deranna Rai & Ors., MANU/KE/2503/2010.
- Essentially, the principle underlying Sections 41 and 43 of the Transfer of Property Act, is by way of exception to the general rule that a person cannot convey a better title than what he himself has in the property. An assignee makes use of only the rights of the assignor and is clothed only with the rights of the assignor (assignatus utitur jure auctoris) and nothing more. It is a well known rule that no one can transfer to another a right or title greater than he himself possesses, nemo plus juris in alium transferre potest quam ipse haberet. But after effecting the transfer, if the transferor acquires certain rights, that he did not possess at the time of transfer, Section 43 comes into play so as to bind him to the covenant that he made at the time of transfer. Therefore unless the transferor’s rights had enlarged subsequent to the transfer, the question of applying Section 43 would not arise – C. Rameswaran & Ors. Vs N. Sambandam & Ors., MANU/TN/0248/2009.
- Generally, the maxim assignatus utitur jure auctoris, i.e. an assignee is clothed with the rights of his assignor is subject to many restrictions; as a general rule, if a transaction has been originally founded on fraud, the original vice will continue to taint it, and not only is the person who has committed fraud is precluded from deriving any benefit under it, but an innocent person is so likewise, unless there has been some consideration moving from himself. In the cases at hand, it is not in dispute that all the petitioners had obtained licences for valuable consideration without any notice of the fraud alleged to have been committed by the original licence holders while obtaining licences. If that be so, the concept that fraud vitiates everything would not be applicable to the cases where the transaction of transfer of licence is for value without notice arising out of mercantile transactions, governed by common law and not by provisions of any statute – Taparia Overseas (P) Ltd. & Ors. Vs Union of India (UOI) & Ors., MANU/MH/0188/2003: 2003 (2) Mah LJ 532.
11. Audi Alterem Partem – No man shall be condemned unheard. It is one of the fundamental principles of administrative law and judicial procedure that no decision shall be given against a party without giving him/her a reasonable hearing.
- A 7 Judge Constitutional Bench of the Supreme Court held it to be a wholesome rule designed to secure the rule of law, vital in the field of administrative law and laid down that it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It held that the court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise. What opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation. Thus it held that in cases of impounding of passports by the Passport Authority, it may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, and opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport Authority and point out why his passport should not be impounded and the order impounding it recalled. The Court also laid down certain exceptions to the applicability of the said maxim:
- The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law ‘lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation’.
- the audi alteram partem rule would be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands.
Maneka Gandhi Vs Union Of India & Ors., MANU/SC/0133/1978: AIR 1978 SC 597: 1978(1) SCC 248: 1978 (2) SCR 621.
- Supreme Court explained the facets of the said maxim – (a) notice of the case to be met and (b) opportunity to explain. It also explained certain exceptions to the said rule:
- Express exclusion by Statute
- Exclusion may be necessitated due to urgency, where the obligation to give notice and opportunity to be heard would obstruct the taking of prompt action of a preventive or remedial nature.
- Audi alteram partem rule may be disregarded in an emergent situation where immediate action brooks no delay to prevent some imminent danger or injury or hazard to paramount public interests.
Swadeshi Cotton Mills Vs Union of India, MANU/SC/0048/1981: AIR 1981 SC 818: 1981 (1) SCC 664: 1981 (2) SCR 533
- It is well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial. There can be exceptions to the said doctrine but whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred and the purpose for which the power is conferred and the final effect of the exercise of that power – Automotive Tyre Manufacturers Association Vs The Designated Authority & Ors., MANU/SC/0022/2011: 2011 (2) SCC 258: 2011 (1) SCR 198.
12. Affirmatis est probare – he who affirms must prove and Affirmanti non neganti incumbit Probatio – the burden of proof lies upon him who asserts and not upon him who denies.
- Madras High Court followed the above 2 maxims for arriving at its conclusion that it is the bounden duty of the plaintiff to prove his case. The burden of proof is ambulatory. It reiterated the law on the point that the initial burden of proof is only on the plaintiff, who should enter into the box and prove his title positively – Pappannan & Ors. Vs Kolandasamy, MANU/TN/1886/2012: 2012 (7) Mad LJ 693
- High Courts assessed the evidence led by the parties, including the plaintiff by applying the above 2 principles – (i) Ramaiyan Chinnadurai & Ors. Vs Ramamirtham, MANU/TN/8822/2019; Arjunan Vs Munusamy & Ors., MANU/TN/0233/2013; (ii) Balbir Singh Vs Ganga Vishan, MANU/DE/1141/2015.
13. Caveat venditor – seller beware
- The concept of ‘as is where is’ and ‘as is what is’ basis has lost its significance in the current commercial milieu and the principle of caveat venditor is more on the rise as compared to the outdated principle of caveat emptor. The Transfer of Property Act, 1882, requires the seller to own up to certain duties and it is not open to a responsible bank to take an innocent auction purchaser for a ride by selling to him a tainted property and thereafter claim protection under the principles of ‘buyer beware’ – (i) Mandava Krishna Chaitanya Vs UCO Bank, Asset Management Branch, MANU/AP/0087/2018 (DB); (ii) V. Ravi Kumar Vs UCO Bank, MANU/AP/0398/2018 (DB).
- Various judgements of SC and HC have replaced the rule of caveat emptor by caveat venditor and when a property is put to sale, the Bank is under statutory obligation to sell the secured asset with clear title free from any encumbrance – The Corporation Bank & Ors. Vs Jayesh Kumar Jha, MANU/WB/2300/2019; Rekha Sahu Vs UCO Bank & Ors., MANU/UP/1191/2013.
14. Contemporanea Expositio Est Optima Et Fortissimo In Lege –
- Contemporaneous exposition or interpretation is the best and strongest in law. The best and surest mode of construing an instrument is to read it in the sense which would have been applied when it was drawn up. This maxim was used to construe ancient statutes but not to interpreting Acts which are comparatively modern. However, the fundamental rule of construction remains the same –whether the Court is asked to construe a provision of an ancient statute or that of a modern one – namely, what is the expressed intention of the Legislature. Further, the Court observed that in a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made and, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them – (i) The Senior Electric Inspector and Ors. Vs Laxmi Narayan Chopra & Ors., MANU/SC/0221/1961: AIR 1962 SC 159: 1962 (3) SCR 146; (ii) Dineshkumar Hanumanprasad Tiwari Vs State of Maharashtra, MANU/MH/0267/1984: AIR 1984 BOM 34.
- The rule of construction by reference to contemporane a expositio is a well established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the statute is plain and unambiguous – K.P. Varghese Vs Income Tax Officer, Ernakulam & Ors., MANU/SC/0300/1981.
15. Delegatus non potest delegare – In the absence of power, a delegate cannot sub-delegate its power to another person.
- A 7 Judge Constitution bench of Supreme Court held that no legislative body can delegate to another department of the government, or to any other authority, the power, either generally or specially, to enact laws which embodies the principle underlying the maxim, delegatus non potest delegare. The Court further clarified that all that it means is that the legislature cannot abdicate its legislative functions and it cannot efface itself and set up a parallel legislature to discharge the primary duty with which it has been entrusted – In Re: The Delhi Laws Act, 1912, MANU/SC/0010/1951: AIR 1951 SC 332: 1951 (2) SCR 747
- A 5 Judge Constitution bench of Supreme Court held that the maxim deals with the extent to which a statutory authority may permit another to exercise a discretion entrusted by the statute to itself. It is true that delegation in its general sense does not imply a parting with statutory powers by the authority which grants the delegation, but points rather to the conferring of an authority to do things which otherwise that administrative authority would have to do for itself. If, however, the administrative authority named in the statute has and retains in its hands general control over the activities of the person to whom it has entrusted in part the exercise of its statutory power and the control exercised by the administrative authority is of a substantial degree, there is in the eye of law no “delegation” at all and the maxim “delegatus non potest delegare” does not apply In other words, if a statutory authority empowers a delegate to undertake preparatory work and to take an initial decision in matters entrusted to it but retains in its own hands the power to approve or disapprove the decision after it has been taken, the decision will be held to have been validly made if the degree of control maintained by the authority is close enough for the decision to be regarded as the authority’s own – Union of India & Ors. Vs P.K. Roy and Ors., MANU/SC/0049/1967: AIR 1968 SC 850: 1968 (2) SCR 186.
- Supreme Court discussed the maxim at length and distinguished delegation of legislative from non-legislative powers and held that the duty cast upon the legislature to make laws cannot be delegated by the Legislature to the executive. After performance of the essential legislative function by the Legislature and laying the guiding policy, the Legislature may delegate to the executive or administrative authority, any ancillary or subordinate powers that are necessary for giving effect to the policy and purposes of the enactment. In construing the scope and extent of delegated power, the difference between the essential and non-essential functions of the delegate should also be borne in mind. While there cannot be sub-delegation of any essential functions, in order to achieve the intended object of the delegation, the non-essential functions can be sub-delegated to be performed under the authority and supervision of the delegate – Sidhartha Sarawgi Vs Board of Trustees for the Port of Kolkata & Ors., MANU/SC/0324/2014: AIR 2015 SC 1271: 2014 (16) SCC 248.
- Court used the said maxim to hold that under the AIR (Prevention And Control of Pollution) Act 1981, the delegatee (the Chairman of the Board) could not have further delegated the authority vested in him, except by a clear mandate of law in as much as Section 43 of the Air Act vested the authority to file complaints with the Board only and the Chairman of the Board, therefore, had no authority to delegate the power to file complaints, to any other authority, for taking cognizance of offences under the Air Act – P. Pramila & Ors. Vs State of Karnataka & Ors., MANU/SC/0456/2015: AIR 2015 SC 2495: 2015 (17) SCC 651.
- Court applied the principle of the said maxim to hold that BIFR being a statutory authority, in absence of any provision empowering it to delegate its power in favour of any other authority had no jurisdiction to do so – NGEF Ltd. Vs Chandra Developers Pvt. Ltd. & Ors., MANU/SC/2471/2005: 2005 (6) COMP LJ 203 (SC): 2005 (8) SCC 219.
16. Ei incumbit probation, qui dicit, non qui negat – burden of proof lies upon him who asserts and not upon him who denies.
- The general rule as to the onus of proof is, that the proof of any particular fact lies on the party who alleges it, not on him who denies it, “ei incumbit probatio qui dicit, non qui negat”. The reason of the rule is, first that it is but just that he who invokes the aid of the law should be the first to prove his case, and, secondly, that a negative is more difficult to establish than an affirmative. These principles have been clearly laid down in Sections 101 and 103 of the Evidence Act – Patel Ramanbhai Mathurbhai Vs Govindbhai Chhotabhai Patel & Ors., MANU/GJ/0774/2018.
- This rule is adopted principally because it is but just that he who invokes the aid of the law should be the first to prove his case; and partly because, in the nature of things, a negative is more difficult to establish than an affirmative. This is simply a rule of convenience which in the Roman Law is thus expressed, Ei incumbit probatio, qui dicit, non qui negat and is adopted in practice, not because it is impossible to prove a negative assertion but because the negative does not admit of the direct and simple proof which the affirmative is capable of – Jaytee Exports Vs Natvar Parikh Industries Limited & Ors., MANU/WB/0244/2018.
- Section 101 enacts that whoever desires a Court to give judgment as to any legal right or liability dependent upon existence of facts which he asserts must prove that those facts exist. This section is based on a Maxim Ei Incumbit Probatio Qui Dicit Non Qui Negat which means that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not on the party who denies it, as the negative is usually incapable of proof – Bhoora Singh Vs State of U.P., MANU/UP/0378/1991.
- SC applied the principles underlying the maxim to hold that it is a well settled principle of law that the person who sets up a plea in existence of relationship of employer and employee, the burden would be upon him – Workmen of Nilgiri Co-op. Mkt. Society Ltd. Vs State of T.N., MANU/SC/0100/2004: (2004) 3 SCC 514.
- In an industrial claim, its procedure is guided by the general principles of the law of evidence that he who asserts must prove. Based on the rule of Roman Law – `ei incumbit probatio, qui dicit, non qui negat’ – the burden of proving a fact rests on party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative does not admit of direct and simple proof. It is well settled that the onus and burden of proof of establishing the employment is consequently on the workman – (i) Ravi N. Tikoo Vs Deputy Commissioner (S.W.) & Ors., MANU/DE/3015/2005: 2006 (128) DLT 267; (ii) G.D. Engineering Works Vs Arvind Kumar, MANU/DE/3031/2015.
- Throughout the web of the Criminal Jurisprudence, one golden thread is always seen that it is the duty of the prosecution to prove the guilt of the accused. This burden of proof on prosecution to prove guilt is also known as presumption of innocence. The presumption of innocence, sometimes refer to by the latin expression “ei incumbit probatio qui dicit, non qui negat” (the burden of proof is on one who declares, not to one who denies) is the principle that one is considered innocence unless proven guilt – Ram Pal Vs State of U.P., MANU/UP/2378/2017.
17. Ejusdem Generis – Of the same class, or kind.
- A 5 judge Constitution bench held that the rule under the maxim is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. As laid down clearly by decided cases, the specific words must form a distinct genus or category – Kavalappara Kottarathil Kochuni & Ors. Vs The State of Madras & Ors., MANU/SC/0019/1960: AIR 1960 SC 1080: 1960 (3) SCR 887.
- The principle of ejusdem generis does not apply in every situation and it is essential for its application that the enumerated things before the general words must constitute a category or a genus or a family which admits of a number of species or members. Thus the specific words must form a distinct genus or category”. If the specified things preceding general words belong to different categories, this principle of construction will not apply. At the same time this rule has no inverse application in as much as general words preceding the enumeration of specific instances are not governed by this rule and their import cannot be limited by any such principle….. The Rule of ejusdem generis has to be applied with care and caution. It is not an inviolable Rule of law, but it is only permissible inference in the absence of an indication to the contrary, and where context and the object and mischief of the enactment do not require restricted meaning to be attached to words of general import, it becomes the duty of the courts to give those words their plain and ordinary meaning – B.H.E.L. Vs Globe Hi-Fabs Ltd., MANU/SC/2140/2009: 2015 (5) SCC 718.
- SC interpreted the Latin expression “ejusdem generis” as meaning “of the same kind or nature” and held it to be a principle of construction i.e. when general words in a statutory text are flanked by restricted words, the meaning of the general words are taken to be restricted by implication with the meaning of restricted words. This principle is presumed to apply unless there is some contrary indication. The said principle was held to be applied only when a contrary intention does not appear – Maharashtra University of Health Sciences and Ors. Vs Satchikitsa Prasarak Mandal and Ors., MANU/SC/0136/2010: AIR 2010 SC 1325: 2010 (3) SCC 786: 2010 (3) SCR 91.
18. Falsus in Uno Falsus in Omnibus – False in one thing, false in everything.
- This maxim has been held not applicable in India and the witnesses cannot be branded as liars. It was held that the maxim falsus in uno falsus in omnibus has not received general acceptance nor has this maxim come to occupy the status of a Rule of law. It is merely a Rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called “a mandatory Rule of evidence”. Merely because some of the Accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted – (i) Rizan & Anr. Vs State of Chhattisgarh, MANU/SC/0036/2003: (2003) 2 SCC 661; (ii) Krishna Mochi & Ors. Vs. State of Bihar, MANU/SC/0327/2002: AIR 2002 SC 1965: 2002 (6) SCC 81: 2002 (3) SCR 1.
- Coming to the applicability of the principle of falsus in uno, falsus in omnibus, even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an Accused, notwithstanding acquittal of large number of other co-accused persons, his conviction can be maintained – R. Jayapal Vs State of Tamil Nadu & Ors., MANU/SC/1072/2019: AIR 2019 SC 3727: 2019 (8) SCC 342.
19. Habeas Corpus – You have the body. It is a remedy available for a person aggrieved to approach a court of law for an order directing the government to produce a person restrained by it in Court, at a designated time and place, and to ascertain whether the detentions is lawful or not. This power is specifically enshrined in our Constitution – Article 32 and 226. Few examples of use of the Writ of Habeas Corpus are as under:
- Writ filed in the High Court of Kerala seeking production of a student, Rajan who was taken into custody and tortured by the Kerala police during the then declared nationwide emergency in 1976, without following the due process and without informing his family about his whereabouts. The writ application was filed by Rajan’s father, T. V. Eachara Warrier after he was informed of his son’s arrest by his son’s college principal.
- The Habeas Corpus remedy was used by the Jammu and Kashmir National Panthers Party as it filed a habeas corpus petition in the Supreme Court seeking to produce Anna Hazare before it, who was alleged to have been arrested hours before he was to launch his fast against corruption, stating that his arrest was an outrageous act by the Delhi Police commissioner and the Home minister – W.P. (Crl.) Nos. 310 of 2005 and 82 of 2010, Bhim Singh Vs Union of India & Ors.
- Supreme Court held that a writ of habeas corpus can only be issued when the detention or confinement of a person is without the authority of law. Though the literal meaning of the Latin phrase habeas corpus is ‘to produce the body’, over a period of time production of the body is more often than not insisted upon but legally it is to be decided whether the body is under illegal detention or not. Habeas corpus is often used as a remedy in cases of preventive detention because in such cases the validity of the order detaining the detenu is not subject to challenge in any other court and it is only writ jurisdiction which is available to the aggrieved party. The scope of the petition of habeas corpus has over a period of time been expanded and this writ is commonly used when a spouse claims that his/her spouse has been illegally detained by the parents. This writ is many times used even in cases of custody of children. Even though, the scope may have expanded, there are certain limitations to this writ and the most basic of such limitation is that the Court, before issuing any writ of habeas corpus must come to the conclusion that the detenu is under detention without any authority of law – The Home Secretary (Prison) & Ors. Vs H.Nilofer Nisha, (decided on 23.01.2020) MANU/SC/0071/2020.
- Writ of habeas corpus have been entertained if the child is in the custody of another parent – settled law that the court can invoke its extraordinary writ jurisdiction for the best interest of the child – (i) Yashita Sahu Vs State of Rajasthan & Ors., MANU/SC/0052/2020: AIR 2020 SC 577; (ii) Elizabeth Dinshaw Vs Arvand M. Dinshaw & Ors., MANU/SC/0689/1986: (1987) 1 SCC 42; (iii) Nithya Anand Raghavan Vs State (NCT of Delhi) and Anr., MANU/SC/0762/2017: (2017) 8 SCC 454; (iv) Lahari Sakhamuri Vs Sobhan Kodali, MANU/SC/0382/2019: (2019) 7 SCC 311.
- The writ has also been extended to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction – Tejaswini Gaud & Ors. Vs Shekhar Jagdish Prasad Tewari & Ors., MANU/SC/0692/2019: AIR 2019 SC 2318: 2019 (7) SCC 42.
20. Ignorantia Facti Excusat Ignorantia Juris Non Excusat – Ignorance of facts may be excused but not ignorance of law – the legal principle being that a person who is unaware of a law may not escape liability for violating that law merely because he was unaware of its content.
- The principle underlying the said maxim was used to counter the stand taken by an accused that he could not be convicted because he did not know that bringing gold on his person amounts to an offence. Court held that the ignorance on the part, of the respondent, who was coming to India from the foreign country, was not sufficient to save him from punishment on the ground that mens rea was necessary. In the above maxim, the terms ‘fact’ obviously does not include the existence of a law in force. Therefore, ignorance of law cannot be regarded as ignorance of fact for the purpose of protecting offenders from punishment – S.A. Qadir Vs The Union of India & Ors., MANU/RH/0695/2000 (DB of High Court of Rajasthan).
- Court used the maxim to not entertain the plea of a party that he was not aware of the right to file an appeal i.e. ignorance of law is not an excuse – Inder Singh Vs Union of India, MANU/DE/1552/2014.
- Court held that the maxim “ignorantia juris non excusat” is not an inflexible rule when the Court is dealing with the case of a rustic farmer and the condonation of delay application was allowed by the Court and the legal representatives of the deceased Respondent were brought on record – Dolatram & Ors. Vs Kishan & Ors., MANU/MP/0241/1999.
21. Impotentia Excusat Legem (Impossibility excuses the law and Inability excuses the non-observance of the law) / Lex Non Cogit Ad Impossiblia (the law shall not expect the performance of the impossible):
- Supreme Court observed that where law creates a duty or charge and the party is disabled to perform it, without any default in him and has no remedy over, there the law will in general excuse him; and though impossibility of performance is, in general, no excuse for not performing an obligation which a party has expressly undertaken by contract, yet when the obligation is one implied by law, impossibility of performance is a good excuse – Industrial Finance Corporation of India Ltd. Vs Cannanore Spinning & Weaving Mills Ltd. & Ors., MANU/SC/0317/2002: 2002 (5) SCC 54.
- In Re: Special Reference No.1 of 2002, Ref. by President, MANU/SC/0891/2002 MANU/SC/0891/2002: AIR 2003 SC 87: 2002 (8) SCC 237, the legal maxim was used in the question of deciding holding of elections. It was held as follows:-
“The impossibility of holding the election is not a factor against the Election Commission. The maxim of law impotentia excusat legem is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly be performed. “Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him.” Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like an act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance with the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God.”
- Apart from General Clauses Act, the Court relied upon the general principle that a party prevented from doing an act by some circumstances beyond his control, can do so at the first subsequent opportunity – HUDA & Ors. Vs Babeswar Kanhar & Ors., MANU/SC/1008/2004: AIR 2005 SC 1491: 2005 (1) SCC 191.
- A 5 judge Constitutional Bench used the legal maxim “impotentia excusat legem” to hold that law does not compel a man to do that which cannot possibly be performed and concluded that where custodial sentence and fine are prescribed modes of punishment, the court can impose the sentence of fine on a company which is found guilty, as the sentence of imprisonment is impossible to be carried out – Standard Chartered Bank Vs Directorate of Enforcement MANU/SC/0380/2005: (2005) 4 SCC 530.
- Court discussed all legal maxims embodying the doctrine of impossibility and concluded that where the law creates a duty or charge, and the party is disabled to perform it, without any fault on his part, and has no control over it, the law will in general excuse him. Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like an act of God, the circumstances will be taken as a valid excuse – Narmada Bachao Andolan & Ors. Vs State of Madhya Pradesh & Ors., MANU/SC/0599/2011: AIR 2011 SC 1989: 2011 (7) SCC 639.
22. In absentia – “In absence,” or more fully, in the absence of the person involved.
- Court held that in our criminal judicial system, firstly, Courts do not try or sentence an accused in absentia (except in petty cases and when represented by a pleader) and that secondly, the judgment must be pronounced in open Court, signed and dated; and that if these formalities are not strictly complied with, the conviction and sentence become vitiated and cannot be sustained as they become illegal – In Re: Athipalayan & Ors., MANU/TN/0367/1960: AIR 1960 MAD 507.
23. Lex Posterior Derogat Priori/ Leges Posteriores Priores Contrarias Abrogant – A later law repeals an earlier law. A later statute derogates from a prior.
- This maxim embodies a principle of statutory interpretation which is to be followed in the case of conflict between 2 statutes – Life Insurance Corporation of India & Ors. Vs D.J. Bahadur & Ors., MANU/SC/0305/1980: AIR 1980 SC 2181: 1981(1) SCC 315.
- There is an exception to this maxim – a 5 Judge Constitution Bench of SC held that this principle is subject to the exception embodied in the maxim: generalia specialibus non derogant, (a general provision does not derogate from a special one). This means that where the literal meaning of the general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one – Ashoka Marketing Ltd. & Ors. Vs Punjab National Bank & Ors., MANU/SC/0198/1991: AIR 1991 SC 855: 1990 94) SCC 406.
- The general Rule to be followed in case of conflict between the two statutes is that the latter abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied.
- The two are inconsistent with each other.
- There is some
express reference in the later to the earlier enactment.
If either of these two conditions is fulfilled, the later law, even though general, would prevail – (i) R.S. Raghunath Vs State of Karnataka, MANU/SC/0012/1992: AIR 1992 SC 81: 1992 91) SCC 335; (ii) Chandra Prakash Tiwari Vs Shakuntala Shukla, MANU/SC/0447/2002: AIR 2002 SC 2322: 2002 (6) SCC 127.
- Where two statutes provide for overriding effect on the other law for the time being in force and the court has to examine which one of them must prevail, the court has to examine the issue considering the following two basic principles of statutory interpretation:
- Leges posteriores priores
contrarias abrogant (later laws abrogate earlier contrary laws).
- Generalia specialibus non derogant
(a general provision does not derogate from a special one)
The principle that the latter Act would prevail the earlier Act has consistently been held to be subject to the exception that a general provision does not derogate from a special one – which means that where the literal meaning of the general enactment covers a situation for which specific provision is made by another enactment contained in the earlier Act, it would be presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one – Yakub Abdul Razak Memon Vs State of Maharashtra, MANU/SC/0268/2013: 2013 (13) SCC 1: 2013 (5) JT 142 SC.
24. Lex specialis derogat legi generali – Special law repeals general laws.
- Court applied the principle underlying the said maxim to hold that Orissa Agricultural Produce Markets Act, 1956 being a special act, the provisions would prevail over the provisions of the general act – the Orissa Municipality Act, 1950 – Talcher Municipality Vs Talcher Regulated Mkt. Committee & Ors., MANU/SC/0559/2004: AIR 2004 SC 3954: 2004 (6) SCC 178.
- Bihar Sugarcane (Regulation of Supply and Purchase) Act (Act 37 of 1982) being a special act, purchase tax could only be levied under it and not general act like the Bihar Finance Act, 1981 – Belsund Sugar Co. Ltd. Vs The State of Bihar, MANU/SC/0457/1999 : AIR 1999 SC 3125.
- Recovery of Debts Due to Banks and Financial Institutions Act, 1993 being a special enactment would prevail over the Companies Act which is a general Act – Allahabad Bank Vs Canara Bank, MANU/SC/0262/2000: AIR 2000 SCC 1535.
- It is a well-settled principle of law that if a special statute lays down procedures, the ones laid down under the general statutes shall not be followed – Jeevan Kumar Raut & Anr. Vs Central Bureau of Investigation, 2009 (7) SCC 526.
- Division Bench of Bombay HC held that Information Technology Act, 2000 being a special enactment, mechanism provided under said Act for dealing with acts arising under it will be applicable and will override general provisions under the Indian Penal Code – Gagan Harsh Sharma & Ors. Vs The State of Maharashtra & Ors., MANU/MH/3012/2018: MANU/MH/3012/2018: 2019 CRI LJ 1398.
25. Locus Standi – The right of a party to bring an action or to appear before court.
- The requirement of locus standi of a party to a litigation is mandatory, because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold – Janata Dal Vs H.S. Chowdhary & Ors., MANU/SC/0532/1992: 1992(4) SCC 305: AIR 1993 SC 892.
- Those who invoke Court’s jurisdiction seeking a waiver of the locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed and the Court should permit waiver of said rule only when it is satisfied that the carriage of proceedings is in the competent hands of a person who is genuinely concerned in public interest and is not moved by other extraneous considerations – S.P Anand Vs H.D. Deve Gowda, MANU/SC/0075/1997: AIR 1997 SC 272: 1996 (6) SCC 734.
- A person acting bonafide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration – Dr. B. Singh Vs Union of India & Ors., AIR 2004 SCW 1494.
- An assessee being a person aggrieved to question the validity of the demand raised on it, it will also have the locus standi to maintain a writ petition – BOC India Ltd. Vs State Of Jharkhand & Ors., 2009 (237) ELT 7 (SC): MANU/SC/0351/2009.
- Appellant who had paid excise duty to manufacturer, had necessary locus standi to file application claiming refund of duty – Oswal Chemicals & Fertilizers Ltd. Vs Commissioner of Central Excise, Bolpur, 2015 (318) ELT 617 (SC): 2015 (4) SCC 431.
26. Mandamus – means “We command”. A writ of Mandamus is an order or a command that is issued from a superior court such as Supreme Court or a high Court to an inferior Court/ Tribunal to perform, or refrain from performing, a particular act, the performance of which is required by law as an obligation. This power is specifically enshrined in our Constitution – Article 32 and 226. Few examples of use of the Writ of mandamus are as under:
- A 5 Judge bench of SC held that executive instructions do not have force of law and are in the nature of administrative instructions without any statutory force of law – they confer no right of any kind on teachers and thus the High Court cannot issue mandamus against the State Government for enforcement or non-enforcement of the said rules; not be issued against a private individual to enforce a private right – State of Assam & Anr. Vs Ajit Kumar Sharma & Ors., AIR 1965 SC 1196: MANU/SC/0051/1964.
- Held that a Writ of Mandamus cannot be issued unless there is non-compliance with some mandatory provision and Court is asked to get that provision enforced because some obligation towards them is not carried out by the authority alleged to be flouting the law – Isha Beevi & Ors. Vs Tax Recovery Officer, Quilon & Ors., MANU/SC/0254/1975: AIR 1975 SC 2135.
- Held that no one has a right to ask for or stick to a current duty charge. The impugned order did not cause any financial loss or prejudice of any kind to the employee and hence Petitioner had no cause of action to invoke the writ of jurisdiction of the High Court and same was a patent misuse of process of the Court by the High Court – State of Haryana Vs S.M. Sharma & Others, MANU/SC/0338/1993: AIR 1993 SC 2273.
- A writ in the nature of Mandamus was issued commanding the State of U.P. to pay post-retiral benefits including pension, gratuity etc. to Petitioner with effect from the date of his superannuation – Ashok Kumar Dixit Vs State of U.P., MANU/UP/0927/2020.
- 5 Judge Bench of SC held that a College/ educational institution when affiliated with a University, does not make the educational institution an instrumentality of state, but since they impart education, they perform public duty and are thus duty bound to act fairly – Unni Krishnan, J.P. & Ors. Vs State of Andhra Pradesh & Ors., MANU/SC/0333/1993: AIR 1993.
- Exceptions to Mandamus – There are 2 exceptions to the right of mandamus:
- If the rights are purely of a private character no mandamus can be issues.
- If the management of the college is purely a private body with no public duty mandamus will not lie.
Janet Jeyapaul Vs SRM University & Ors., MANU/SC/1438/2015: AIR 2016 SC 73: 2015 (16) SCC 530.
27. Mutatis Mutandis – With necessary changes.
- When a law directs that a provision made for a certain type of case shall apply mutatis mutandis in another type of case, it means that it shall apply with such changes as may be necessary – (i) Corporation of Calcutta Vs Sirajuddin & Ors., MANU/WB/0116/1957 (FB): AIR 1957 CAL 399; (ii) Vasudev Anant Kulkarni Vs Executive Engineer, M. S. E. B. , MANU/MH/0470/1994: 1994 Mah LJ 960 (DB);
- Meaning of the expression ‘mutatis mutandis’ was discussed and concluded that extension of an earlier Act mutatis mutandis to a later Act brings in the idea of adaptation, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the thing changed, subject of course to express provisions made in the later Act – Ashok Service Center & Ors. Vs State of Orissa, MANU/SC/0313/1983: AIR 1983 SC 394: 1983 (2) SCC 82.
- The phrase “mutatis mutandis” implies that a provision contained in other part of the statute or other statutes would have application as it is with certain changes in points of detail – The Rajasthan State Industrial Development and Investment Corporation & Ors. Vs Diamond and Gem Development Corporation Ltd. & Ors., MANU/SC/0116/2013.
28. Nemo Debet Esse Judex in Propria Sua Causa – No man can be judge in his own case. No one ought to be a judge in his own cause.
- Justice Bhagwati held that one of the fundamental principles of our jurisprudence that no man can be a Judge in his own cause and that if there is a reasonable likelihood of bias it is “in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting” – Ashok Kumar Yadav & Ors. Vs State of Haryana & Ors., MANU/SC/0026/1985: AIR 1987 SC 454: 1985 (4) SCC 417.
- It is an accepted principle of natural justice that a person should not be a judge in his or her own cause. In common law, this principle has been derived from the Latin maxim – `nemo debet esse judex in propria sua causa’. A reasonable permutation of this principle is that no judge should adjudicate a dispute which he or she has dealt with in any capacity, other than a purely judicial one. The failure to adhere to this principle creates an apprehension of bias on part of the said judge – A.U. Kureshi Vs High Court Of Gujarat & Ors., MANU/SC/0209/2009: 2009 (11) SCC 84.
- Principles of natural justice are based on two basic pillars:
- Nobody shall be condemned unheard (audi alteram partem)
- Nobody shall be judge of his own cause (nemo debet esse judex in propria sua causa)
Bidhannagar (Salt Lake) Welfare Association Vs Central Valuation Board & Ors., MANU/SC/2553/2007: AIR 2007 SC 2276: 2007 (6) SCC 668.
29. Nemo debet bis vexari pro una et eadem causa [A man shall not be vexed twice for one and the same cause] / interest republicae ut sit finis litium (it is in the interest of the State that there should be an end to litigation)
- The two fundamental maxims of Roman law, namely, interest reipublicae ut sit finis litium (it concerns the State that there be an end to law suits) and nemo debet bis vexari pro una et eadem causa (no man should be vexed twice over for the same cause) was held to be applicable universally in Indian laws – Canara Bank Vs N.G. Subbaraya Setty & Ors., MANU/SC/0433/2018: AIR 2018 SC 3395: 2018 (16) SCC 228.
- The Rule against double jeopardy is based on a maxim nemo debet bis vexari pro una et eadem causa, which means no man shall be put in jeopardy twice for one and the same offence. Article 20 of the Constitution provides that no person shall be prosecuted or punished for the offence more than once. However, it is also settled that a subsequent trial or a prosecution and punishment has no bar if the ingredients of the two offence are distinct – Department of Customs Vs Sharad Gandhi, MANU/SC/0295/2019: 2019 (3) SCALE 447.
- The principle of res-judicata as enshrined in Section 11 of Code of Civil Procedure, is founded on the maxim “Nemo Debet Bis Vexari Pro Una Et Eadem Causa” – (i) Andanur Kalamma & Ors. Vs Gangamma (dead) by L.Rs., MANU/SC/0210/2018: 2018 (15) SCC 508; (ii) Nagabhushanammal Vs C.Chandikeswaralingam, MANU/SC/0231/2016: 2016 (4) SCC 434;
- Court was of the view that these maxims cannot be applied as a rule of thumb in taxation matters where in the matters of classification of goods, the principles that have been followed by the courts are that there may not be justification for changing the classification without a change in the nature or a change in the use of the product – Commissioner of Central Excise, Nagpur Vs Shree Baidyanath Ayurved Bhawan Ltd., MANU/SC/0565/2009.
- This maxim is applied fully in criminal law. Court held that the rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una et eadem causa. It is a significant basic rule of Criminal Law that no man shall be put in jeopardy twice for one and the same offence – State of Rajasthan Vs Hat Singh & Ors., MANU/SC/0006/2003: AIR 2003 SC 791: 2003 (2) SCC 152.
30. Nemo Moriturus Praesumitur mentire – a man will not meet his maker with a lie in his mouth – the underlying principle of Law of Evidence in India which also proceeds on the basis that “a dying man seldom lies”.
- Held that principle on which dying declarations are admitted in evidence is based upon the legal maxim “Nemo meritorious prasumiter mentire” i.e., a man will not meet his maker with a lie in his mouth – (i) Uka Ram Vs State of Rajasthan, MANU/SC/0242/2001: AIR 2001 SC 1814: 2001 (5) SCC 254; (ii) Babu Lal & Ors. Vs State of Madhya Pradesh, MANU/SC/0855/2003: 2003 (12) SCC 490: 2003 (8) JT 387 (SC); (iii) State of Maharashtra Vs Nisar Ramzan Sayyed, MANU/SC/0388/2017: AIR 2017 SC 2363: 2017 (5) SCC 673.
31. Noscitur a Sociis – “the meaning of a word is to be judged by the company it keeps”. The meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it. This rule, means that when two or more words which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense.
- noscitur a sociis is a legitimate Rule of construction to construe the words in an Act of Parliament with reference to the words found in immediate connection with them – Ahmedabad Pvt. Primary Teachers’ Association Vs Administrative Officer & Ors., MANU/SC/0032/2004: AIR 2004 SC 1426: 2014 (1) SCC 755.
- It is a legitimate Rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them; They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. The same Rule is also used to interpret Words and Phrases as well – Parle Agro (P) Ltd. & Ors. Vs Commissioner of Commercial Taxes, Trivandrum and Ors., MANU/SC/0646/2017.
- Exception to the Rule – Noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words are intentionally used by the legislature in order to make the scope of the defined word correspondingly wider – (i) Prabhudas Damodar Kotecha & Ors. Vs Manhabala Jeram Damodar & Ors., MANU/SC/0797/2013: AIR 2013 SC 2959: 2013 (15) SCC 358; (ii) The State of Bombay & Ors. Vs The Hospital Mazdoor Sabha & Ors., MANU/SC/0200/1960: AIR 1960 SC 610.
32. Nova Constitutio Futuris Formam Imponere Debet, Non Praeteritis – A new law ought to be prospective and not retrospective, in operation.
- Legal Maxim “nova constitutio futuris formam imponere debet non praeteritis”, i.e. ‘a new law ought to regulate what is to follow, not the past’, contains a principle of presumption of prospectivety of a statute – Commissioner of Income Tax 5 Mumbai Vs Essar Teleholdings Ltd., MANU/SC/0057/2018: AIR 2018 SC 1116: 2018 (3) SCC 253.
- It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. There is a presumption of prospectivity articulated in the legal maxim ‘nova constitutio futuris formam imponere debet non praeteritis’, i.e. ‘a new law ought to regulate what is to follow, not the past’, and this presumption operates unless shown to the contrary by express provision in the statute or is otherwise discernible by necessary implication. But the Rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is “deemed to be prospective only – (i) Shanti Conductors (P) Ltd. & Ors., Vs Assam State Electricity Board & Ors., MANU/SC/0972/2016: 2016 (15) SCC 13; (ii) Zile Singh Vs State of Haryana, MANU/SC/0876/2004: (2004) 8 SCC 1.
- The presumption against retrospective operation is not applicable to declaratory statutes…. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is “to explain” an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended…. An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect–Zile Singh Vs State of Haryana, MANU/SC/0876/2004: (2004) 8 SCC 1.
- A statute is presumed to be prospective unless held to be retrospective, either expressly or by necessary implication. A substantive law is presumed to be prospective. It is one of the facets of the rule of law – State of Punjab Vs Bhajan Kaur, MANU/SC/7644/2008: (2008) 12 SCC 112.
- Even though an Act may be welfare legislation enacted to protect the interest of suppliers, especially suppliers of the nature of a small-scale industry, but, at the same time, the intention and purpose of the Act cannot be lost sight of and the Act in question cannot be given a retrospective effect so long as such an intention is not clearly made out and derived from the Act itself – Shakti Tubes Limited Vs State of Bihar MANU/SC/1149/2009: (2009) 7 SCC 673.
33. Nullus Commodum Capere Potest De Injuria Sua Propria/ Juri Ex Injuria Non Oritur – No man can take advantage of his own wrong/ No person can claim any right arising out of his own wrong doing.
- The maxim nullus commodum capere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations – (i) Eureka Forbes Limited Vs Allahabad Bank, MANU/SC/0322/2010: (2010) 6 SCC 193; (ii) Advanta India Limited Vs B.N. Shivanna, MANU/SC/0190/2018: (2018) 14 SCC 666.
- A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court, thus applying the principle underlying the legal maxim Nullus Commodum Capere Potest De Injuria Sua Propria. The person(s) violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation…. Nor can a person claim any right arising out of his own wrong doing. (Juri Ex Injuria Non Oritur) – (i) Devendra Kumar Vs. State of Uttaranchal, MANU/SC/0772/2013: (2013) 9 SCC 363; (ii) Akhilesh Shrivastava Vs State of Madhya Pradesh & Ors., MANU/MP/0396/2020.
34. Nunc pro tunc – “now for then”.
- In view of the mistake of the District Court which needed to be righted, Supreme Court relegated the parties to the position they occupied when the error was committed by the Court, same said error was rectified by Supreme Court nunc pro tunc – Jang Singh Vs Brij Lal & Ors., AIR 1966 SC 1631: 1964 (2) SCR 145.
- The maxim nunc-pro-tunc was held to mean that if owing to the delay in what the court should, otherwise, have done earlier but did later, a party suffers owing to events occurring in the interrugnum, the Court has the power to remedy it. The area of operation of the maxim was, generally, held to be procedural. Errors in judicial findings, either of facts or law or operative decisions consciously arrived at as a part of the judicial-exercise cannot be interfered with by resort to this maxim – A.R. Antulay Vs R.S. Nayak & Ors., MANU/SC/0002/1988: AIR 1988 SC 1531.
- The three words, namely, nunc pro tunc, is basically in the realm of doctrine of relation back and it is applied because of the fault of the Court, the litigant should not suffer – S. Krishna Sradha Vs State of Andhra Pradesh & Ors., MANU/SC/0083/2017: 2017 (4) SCC 516.
35. Obiter Dicta – “things said by the way” – meaning remarks of a judge which are not necessary to reaching a decision, but are made as comments, illustrations or thoughts.
- While applying the decision to a later case, the Court dealing with it should carefully try to ascertain the principle laid down by the previous decision. A decision often takes its colour from the question involved in the case in which it is rendered. The scope and authority of a precedent should never be expended unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative; Mere casual expression carry no weight at all. Nor every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement having the weight of authority – The Divisional Controller, KSRTC Vs Mahadeva Shetty & Ors., MANU/SC/0529/2003: AIR 2003 SC 4172: 2003 (7) SCC 197.
- Obiter dictum (plural obiter dicta) is an opinion or a remark made by a Judge which does not form a necessary part of the court’s decision. The word obiter dicta is a Latin word which means “things said by the way.” Obiter dicta can be passing comments, opinions or examples cited by a Judge. The statements by way of obiter dicta are therefore not considered binding – State of Meghalaya Vs Sujata Gupta & Ors., MANU/MG/0033/2020.
- Discussed the nature and scope of “obiter dicta”; Held an expression in an opinion which is not necessary to support the decision reached by the court is dictum or obiter dictum – Arun Kumar Aggarwal Vs State of Madhya Pradesh & Ors., MANU/SC/1011/2011: (2014) 5 SCC (Cri) 803: (2014) 13 SCC 707.
- Decision rendered on a question which was not germane to the case cannot be said to be a binding precedent as it is obiter dicta and thus has to be ignored – Indore Development Authority & Ors. Vs Shailendra (Dead) Through L.Rs. & Ors., MANU/SC/0095/2018: AIR 2018 SC 824: 2018 93) SCC 412.
36. Pari Materia – Of the same matter; on the same subject.
- Doctrine of pari materia was discussed and held that it is settled law that two statutes are said to be in pari materia with each other when they deal with the same subject-matter. The rationale behind this Rule is based on the interpretative assumption that words employed in legislations are used in an identical sense. However, this assumption is rebuttable by the context of the statutes – Bangalore Turf Club Ltd. Vs Regional Director, ESI Corporation, MANU/SC/0681/2014: (2014) 9 SCC 657; State of Gujarat Vs Mansukhbhai Kanjibhai Shah, MANU/SC/0417/2020.
- Statutes in pari materia although in apparent conflict, should also, so far as reasonably possible, be construed to be in harmony with each other and it is only when there is an irreconcilable conflict between the new provision and the prior statute relating to the same subject-matter, that the former, being the later expression of the legislature, may be held to prevail, the prior law yielding to the extent of the conflict – Union of India (UOI) & Ors. Vs Ranjit Kumar Saha & Ors., MANU/SC/0892/2019: 2019 (7) SCC 505.
- Discussed the meaning of the phrase “pari materia” – and under what circumstances statutes can be considered to be in pari materia, and the nature of the construction to be placed on such statutes – Shah and Co., Bombay Vs The State of Maharashtra & Ors., MANU/SC/0341/1967: AIR 1967 SC 1877: 1967 93) SCR 466.
37. Per Incuriam – By Mistake
- A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute – Municipal Corporation of Delhi Vs Gurnam Kaur, MANU/SC/0323/1988: AIR 1989 SC 38: 1989 91) SCC 101.
- It was held that the principle of per incuriam has been developed, accepted, approved and adopted by SC Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedent as a matter of law – Vinod Kumar Vs Ashok Kumar Gandhi, MANU/SC/1028/2019.
- 7 judge Constitution Bench of SC held that ‘Per incuriam’ are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong – A.R. Antulay Vs R.S. Nayak, MANU/SC/0002/1988: (1988) 2 SCC 602: AIR 1988 SC 1531.
- 5 Judge Constitutional Bench of SC held that the Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when SC Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court. It further held without any doubt that Article 141 embodies, as a Rule of law, the doctrine of precedents on which Indian judicial system is based – Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs Presiding Officer, Labour Court, Chandigarh & Anr., MANU/SC/0479/1990: (1990) 3 SCC 682: 1990 (2) JT 490 (SC).
38. Qui Facit Per Alium Facit Per Se – He who acts by or through another, acts for himself. A person who does a thing through the instrumentality of another, is held as having done it himself.
- SC held that the Indian Income-tax Act being a self contained code, exhaustive of the matters dealt with therein, is excluded from the application of the common rule embodied in the maxim, qui facit per alium facit per se – Ravula Subba Rao & Ors. Vs The Commissioner of Income Tax, Madras, MANU/SC/0042/1956: AIR 1956 SC 604: 1956 (1) SCR 577.
- 5 Judge Constitutional Bench of SC held that although the maxim qui facit per alium facit per se is not generally applicable in criminal law, however it applied the principles underlying the maxim to strike down Section 88 of the Gold Control Act, 1968 (Repealed) as being unconstitutional as it imposes an unreasonable restriction on the fundamental right of the party and held it to have been extended beyond reasonable limits – Harakchand Ratanchand Banthia & Ors. Vs Union of India (UOI) & Ors., MANU/SC/0038/1969: AIR 1970 SC 1453.
- SC applied the principle underlying the maxim: “qui facit per alium facit per se” (what one does through another is done by oneself) to hold that that which cannot be done directly may not be done indirectly by engaging another outside the prohibited area, to do the illegal act within the prohibited area – Pratapchand Nopaji Vs Kotrike Venkata Setty & Sons, MANU/SC/0028/1974: (1975) 2 SCC 208.
39. Quid pro quo – What for what or Something for something – there has to be a correlation between a favour or advantage granted in return for something.
- Court applied the maxim to hold that a reasonable relationship between collection and the services rendered must be evident; the element of quid pro quo in the strict sense is not always a sine qua non for a fee. It is needless to stress that the element of quid pro quo is not necessarily absent in every tax – Sreenivasa General Traders Vs State of Andhra Pradesh, MANU/SC/0278/1983: (1983) 4 SCC 353.
- The principle of quid pro quo principle was applied to come to a conclusion that the Standing Order does not impose a compulsory levy but it only gives an option to the transporter to take the advantage of the provision and this makes it further clear that it is not a levy or an imposition of tax but merely a fee charged for the privilege or services rendered to the payer – Municipal Corporation of the City of Baroda Vs Babubhai Himatlal, MANU/SC/0372/1989: AIR 1989 SC 2091: 1989 (4) SCC 103.
- While there is no quid pro quo between a tax payer and the authority in case of a tax, there is a necessary co-relation between fee collected and the service intended to be rendered. The quid pro quo need not be understood in mathematical equivalence but only in a fair correspondence between the two. A broad co- relationship is all that is necessary – Sri Krishna Das Vs Town Area Committee, Chirgaon MANU/SC/0477/1990:  183 ITR 401 (SC).
- Court was considering the issue of the enhancement of fee and after examining the scheme and operation of the rules, it came to the conclusion that the State Government was providing sufficient services to the timber merchants at every check-point and as such the principle of quid pro quo was satisfied – T.V. Balakrishnan Vs State of T.N. & Ors., MANU/SC/1389/1995: 1995 SUPP 4 SCC 236: 1994 (2) SCALE 661.
- The principle of quid pro quo has been applied mostly in respect of fees levied in lieu of some service rendered – M. Chandru Vs The Member Secretary, Chennai Metropolitan Development Authority & Ors., MANU/SC/0232/2009: 2009 (4) SCC 72.
40. Quo Warranto – An order issued by authority of the king. A legal proceeding during which an individual’s right to hold an office or government’s privilege is challenged.
- 5 Judge Constitution bench held that the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. The Court further went on to hold that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that (i) the office in question is a public office and (ii) is held by a usurper without legal authority, and (iii) that inevitably would lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not – The University of Mysore & Ors. Vs C.D. Govinda Rao & Ors., MANU/SC/0268/1963: AIR 1965 SC 491: 1964 (4) SCR 575.
- SC held that the High Court in exercise of its writ jurisdiction of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one – while issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. Further, it was stated that a writ of quo warranto can only be issued when the appointment is contrary to the statutory rules – High Court of Gujarat & Anr. Vs Gujarat Kishan Mazdoor Panchayat & Ors., MANU/SC/0214/2003: AIR 2003 SC 120: 2003 (4) SCC 712.
- Court concluded that the jurisdiction of the High Court while issuing a writ of quo warranto is limited and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority. The Court further laid down that while dealing with the writ of quo warranto, Courts ought not to allow application of the principle of doctrine of delay and laches because the person holds the public office as a usurper and such continuance is to be prevented by the court. The Court is required to see that the larger public interest and the basic concept pertaining to good governance are not thrown to the winds – Central Electricity Supply Utility of Odisha Vs Dhobei Sahoo & Ors., MANU/SC/1147/2013: AIR 2014 SC 246: 2014 (1) SCC 161.
41. Ratio Decidendi – The reason or rationale for the decision by Court.
- A Constitution Bench reflected on the true nature of ratio decidendi – heldthat the ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it – Krishena Kumar Vs Union of India, MANU/SC/0317/1990: AIR 1990 SC 1782: 1990 (4) SCC 207.
- 5 Judge Constitution bench – was of the view that a judgment, it is trite, is not to be read as a statute. The ratio decidendi of a judgment is its reasoning which can be deciphered only upon reading the same in its entirety. The ratio decidendi of a case or the principles and reasons on which it is based is distinct from the relief finally granted or the manner adopted for its disposal – Islamic Academy of Education Vs State of Karnataka, MANU/SC/0580/2003: AIR 2003 SC 3724: 2003 (6) SCC 697.
- Every judgment of superior courts has three segments, namely, (i) the facts and the point at issue; (ii) the reasons for the decision; and (iii) the final order containing the decision. The reasons for the decision or the ratio decidendi is not the final order containing the decision. In fact, in a judgment of this Court, though the ratio decidendi may point to a particular result, the decision (final order relating to relief) may be different and not a natural consequence of the ratio decidendi of the judgment. This may happen either on account of any subsequent event or the need to mould the relief to do complete justice in the matter. It is the ratio decidendi of a judgment and not the final order in the judgment, which forms a precedent – Sanjay Singh Vs U.P. Public Service Commission, Allahabad, MANU/SC/0563/2007: AIR 2007 SC 950: 2007 (3) SCC 720.
42. Res Integra – An entire thing; an entirely new or untouched matter. This maxim is usually applied to those points of law which have not been decided and are untouched by any previous dictum or decision of same court or higher bench of same court or a higher court to enable Courts to decide the point of law, otherwise they are bound to follow the general principles already laid down in previous judgements on the issue at hand.
- Court held that the powers of the first appellate Court while deciding the first appeal are well defined by various judicial pronouncements of this SC and are, therefore, no more res integra and thus it is apt for Courts to take note of the law on this issue – Union of India Vs K.V. Lakshman & Ors., MANU/SC/0714/2016: AIR 2016 SC 3139: 2016 (13) SCC 124.
- SC was of the view that the only question in the matter which arose for consideration – whether the Appellants are entitled for an order against the Insurer of the offending vehicle to pay the awarded sum to the Appellants and then to recover the said amount from the insured (owner of the offending vehicle-Tata Sumo)-Respondent No. 1 in the same proceedings – is no longer res integra as it was subject matter of several decisions of this Court rendered by three Judge Bench and two Judge Bench in the past – Manuara Khatun & Ors. Vs Rajesh Kr. Singh & Ors., MANU/SC/0194/2017: 2017 (4) SCC 796: AIR 2017 SC 1204.
- Held that reasonable opportunity of hearing which is synonymous to ‘fair hearing’, is not longer res integra as it has been held to be an important ingredient of audi alteram partem Rule and embraces almost every facet of fair procedure – Kanachur Islamic Education Trust (R) Vs Union of India (UOI) & Ors., MANU/SC/1058/2017: 2017 (15) SCC 702.
43. Res Ipsa Loquitur – The thing speaks for itself;
- 3 judge bench discussed the applicability of said maxim in cases arising out of negligence of the party – State of Punjab Vs Modern Cultivators, Ladwa, MANU/SC/0011/1964: AIR 1965 SC 17: 1964 (8) SCR 273
- res ipsa loquitur (thing speaks for itself) is a principle which, in reality, belongs to the law of torts and excluded application of said principle to criminal trials, explained 2 facets of applicability of the said maxim – Syad Akbar Vs State of Karnataka, MANU/SC/0275/1979: AIR 1979 SC 1848: 1980 (1) SCC 30.
- The principle of res ipsa loquitur – a rule of evidence – which is based on rule of prudence and public policy, was held to be fully applicable in departmental proceedings as well – where the Corporation beyond a particular limit cannot lead any evidence to prove negligence of a driver employed by it in driving vehicle entrusted to him – North West Karnataka Road Transport Corporation Vs B.U. Doni MANU/KA/0798/2002.
- In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence; for eg. a case of mismatch blood transfusion is one of the illustrations given to indicate the application of res ipsa loquitur – V. Kishan Rao Vs Nikhil Super Speciality Hospital & Ors., MANU/SC/0332/2010: 2010 (5) SCC 513: 2010 (4) JT 630 SC.
- SC was of the view that the material relied by the Department during the enquiry supported the fact that the Respondent was driving the vehicle at the relevant time and because of the high speed of his vehicle the impact was so severe that the two vehicles were extensively damaged and the passengers travelling in the vehicle suffered fatal injuries resulting in death of five persons on the spot and four persons in the hospital besides the injuries to nine persons. These facts stood established from the material relied by the Department, as a result of which the doctrine of Res ipsa loquitur came into play and the burden shifted on the Respondent who was in control of the bus to establish that the accident did not happen on account of any negligence on his part – The Management of TNSTC (Coimbatore) Ltd. Vs M. Chandrasekaran, MANU/SC/0971/2016: AIR 2016 SC 4055: 2016 (16) SCC 16.
- SC approved of Consumer District Forum’s application of the principle underlying the maxim res ipsa loquitur to the situation to hold the doctors guilty of negligence resulting in the physical and mental disability of the child and enhanced the compensation awarded by the Forums below – Shilaben Ashwinkumar Rana Vs Bhavin K. Shah & Ors., MANU/SC/0468/2019: 2019 (IV) CPJ 4 (SC).
44. Res Judicata – A thing adjudged.
- To constitute a matter res judicata, the following conditions must be proved: (a) that the litigating parties must be the same; (b) that the subject-matter of the suit also must be identical; (c) that the matter must be finally decided between the parties; and (d) that the suit must be decided by a court of competent jurisdiction – Syed Mohd. Salie Labbai Vs Mohd. Hanifa, MANU/SC/0510/1976: AIR 1976 SC 1569: (1976) 4 SCC 780.
- SC held that one of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied – Narayana Prabhu Venkateswara Prabhu Vs Narayana Prabhu Krishna Prabhu, MANU/SC/0025/1977: AIR 1977 SC 1268: (1977) 2 SCC 181.
- Under Section 11 of the CPC, in order to constitute res judicata, the following conditions must be satisfied:
- There must be two suits – one former suit and the other subsequent suit;
- The Court which decided the former suit must be competent to try the subsequent suit;
- The matter directly and substantially in issue must be the same either actually or constructively in both the suits.
- The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit;
- The parties to the suits or the parties under whom they or any of them claim must be the same in both the suits;
- The parties in both the suits must have litigated under the same title.
Saroja Vs Chinnusamy (Dead) by L.Rs & Ors., MANU/SC/3416/2007: AIR 2007 SC 3067: 2007 (8) SCC 329.
- ‘Res judicata’ literally means a “thing adjudicated” or “an issue that has been definitively settled by judicial decision”. The principle operates as a bar to try the same issue once over. It aims to prevent multiplicity of proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies and was decided and has become final, so that the parties are not vexed twice over; thus vexatious litigation is put an end to and valuable time of the court is saved – Nagabhushanammal Vs C. Chandikeswaralingam, MANU/SC/0231/2016: AIR 2016 SC 1134: 2016 (4) SCC 434.
- The doctrine of res judicata is a wholesome one which is applicable not only to matters governed by Code of Civil Procedure but to all litigations – it is well settled that the said principle is applied for the purpose of achieving finality in litigation – Kaushik Coop. Building Society Vs N. Parvathamma & Ors., MANU/SC/0416/2017: AIR 2017 SC 1962: 2017 (13) SCC 138.
- SC held that the doctrine of res judicata cannot be applied between co-defendants. However there are exceptions to this rule by which the principles of res judicata may apply as between co-defendants as well and laid down the requisite conditions (a) there must be conflict of interest between the Defendants concerned, (b) it must be necessary to decide this conflict in order to give the Plaintiff the relief he claims and (c) the question between the Defendants must have been finally decide – (i) Govindammal (Dead) by L.Rs. & Ors. Vs Vaidiyanathan & Ors., MANU/SC/1188/2018: 2018 (14) SCALE 198; (ii) Mahboob Sahab Vs Syed Ismail & Ors., MANU/SC/0698/1995: (1995) 3 SCC 693.
45. Sub Silentio – Under silence; without any notice being taken
- A decision passes sub silentio when the particular point of law involved in the decision is not perceived by the court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio – Municipal Corporation of Delhi Vs Gurnam Kaur, MANU/SC/0323/1988: AIR 1989 SC 38: 1989 (1) SCC 101.
- A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. This is the Rule of sub silentio, in the technical sense when a particular point of law was not consciously determined – Arnit Das Vs State of Bihar, MANU/SC/0376/2000: (2000) 5 SCC 488.
- The principle of sub silentio has also been applied to novation of contracts – (i) McDermott International Inc. Vs Burn Standard Co. Ltd. & Ors., MANU/SC/8177/2006: 2006 (11) SCC 181: 2006 (11) JT 376 (SC); (ii) BSNL Vs BPL Mobile Cellular Ltd., MANU/SC/7717/2008: (2008) 13 SCC 597;
46. Suppressio Veri or Suggestio Falsi – Concealment of truth or a statement of falsehood
- ‘Concealment of income’ and ‘furnishing of inaccurate particulars’ carry different connotations. Concealment refers to deliberate act on the part of the assessee. A mere omission or negligence would not constitute a deliberate act of suppressio veri or suggestio falsi – (i) T. Ashok Pai Vs Commissioner of Income Tax, Bangalore, MANU/SC/7720/2007: 2007 (7) SCC 162: 2007 (8) JT 525 (SC); (ii) Dilip N. Shroff Vs JCIT, MANU/SC/3182/2007: 2007 (6) SCC 329: 2007 (7) SCR 499.
- 3 Judge bench of SC held that one of the principles to be kept in mind by an employer is that before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him – Avtar Singh Vs Union of India (UOI) & Ors., MANU/SC/0803/2016: AIR 2016 SC 3598: 2016 (8) SCC 471.
47. Ubi Jus Ibi Remedium Est– For every wrong, the law provides a remedy. There is no wrong without a remedy – where there is a right, there is a remedy – every right when it is breached must be provided with a right to a remedy.
- In our jurisprudence it is not palatable to turn down the prayer for high prerogative writs on the negative plea of alternative remedy, since the root principle of law married to justice, is ubi jus ibi remedium – Shiv Shanker Dal Mills Vs State of Haryana. MANU/SC/0032/1979: AIR 1980 SC 1037:  2 SCC 437.
- 5 Judge Constitution bench held that as far as possible Courts must always aim to preserve and protect the rights of parties and extend help to enforce them rather than deny relief and thereby render the rights themselves (sic) ‘ubi jus ibi remedium’ (where there is a right, there is a remedy) being a basic principle of jurisprudence. Such a course would be more conducive and better conform to a fair, reasonable and proper administration of justice – S. Amarjit Singh Kalra (Dead) by Lrs. & Ors. Vs Pramod Gupta (Dead) by Lrs. & Ors., MANU/SC/1214/2002: AIR 2003 SC 2588: 2003 (3) SCC 272.
- A person having a grievance as against other must have a remedy. The maxim ‘ubi jus ibi remedium’ is not an empty formality. The jurisdiction of the Civil Court exemplifies the said doctrine. The jurisdiction of the Civil Court cannot he held to have been ousted unless it is so, expressly or by necessary implication, stated in the statute – Atmananda & Ors. Vs Ramakrishna Tapovanam & Ors., MANU/SC/0287/2005: AIR 2005 SC 2392: 2005 (10) SCC 51.
- 5 Judge Constitution Bench of SC concluded that access to justice is and has been recognised as a part and parcel of right to life in India and in all civilized societies around the globe. The right is so basic and inalienable that no system of governance can possibly ignore its significance, leave alone afford to deny the same to its citizens. The Magna Carta, the Universal Declaration of Rights, the International Covenant on Civil and Political Rights, 1966, the ancient Roman Jurisprudential maxim of “Ubi Jus Ibi Remedium’, the development of fundamental principles of common law by judicial pronouncements of the Courts over centuries past have all contributed to the acceptance of access to justice as a basic and inalienable human right which all civilized societies and systems recognise and enforce – Anita Kushwaha & Ors. Vs Pushap Sudan & Ors., MANU/SC/0797/2016: AIR 2016 SC 3506: 2016(8) SCC 509
- Ubi jus ibi remedium lays down the principle that where there is a right there is a remedy and it can be excluded only by substantial legislation expressly extinguishing the said right – Rajender Bansal & Ors. Vs Bhuru (D) thr. L.Rs. & Ors., MANU/SC/1315/2016: AIR 2016 SC 4919: 2017 (4) SCC 202.
48. Vigilanti bus et non d ormientibus jura sub veniunt – Law aids the vigilant and not the dormant or laws aid/assist those who are vigilant, not those who sleep upon/over their rights.
- Independently of the Statutes of Limitation, a plaintiff may be precluded by his own laches from obtaining equitable relief. Laches pre-supposes not only lapse of time, but also the existence of circumstances which render it unjust to give relief to the plaintiff; and unless reasonable vigilance is shown in the prosecution of a claim to equitable relief, the Court, acting on the maxim vigilanti-bus non dormientibus subveniunt leges, will decline to interfere – Gattu Lal Vs Gulab Singh & Ors., MANU/SC/0006/1985: AIR 1985 SC 547: 1985 (1) SCC 432.
- The doctrine “vigilanti bus, et non dormentibus, jura subvenient” is attracted to the present case. Law helps those, who are vigilant and not those who sleep – law comes to the rescue of such persons, who are themselves vigilant about their rights – Lala Vs Lal Khan & Ors., MANU/RH/0006/1990: AIR 1990 RAJ 17.
- It is well settled principle that laws aid and assist those who are vigilant not those who sleep over their rights (Vigilanti bus, non dormientibus, jura subveniunt). The relief of specific performance of agreement is an equitable relief. A person seeking such an equitable relief, has to approach the Court with clean hands and exhibit bona fide conduct – N. Satyanarayana Vs Vedprakash Dusaj & Ors., MANU/AP/0340/2003: AIR 2003 AP 385
- Vigilantibus et non dormientibus jura subveniunt – The laws aids those who are vigilant, not those who sleep upon their rights – Pushpammal Vs Jayavelu Gounder & Ors., MANU/TN/3711/2010.
49. Volenti Non Fit Injuria – To the consenting, no injury is done.
- One of the defense recognised in common law against action brought on the strength of the rule in Rylands Vs Fletcher is the Consent of the plaintiff i.e. violenti non fit injuria – Kaushnuma Begum & Ors. Vs The New India Assurance Co. Ltd. & Ors., MANU/SC/0002/2001: AIR 2001 SC 485: 2001 (2) SCC 9.
- HC applied the maxim/doctrine “volenti non fit injuria” to the case as it was of the view that the injured persons voluntarily entered into the lorry at their own risk and thus there is no reason to fasten liability on the Insurance Company. For applying the doctrine “volenti non fit injuria” the insurance company must prove by acceptable evidence that the claimants/respondents entered into the lorry without permission of the driver – United India Insurance Co. Ltd. Vs Guguloth Khana & Ors., MANU/AP/1441/2001.
- One of the exception to the rule of strict liability is the consent of the plaintiff, i.e. volenti non fit injuria – State of Himachal Pradesh & Ors. Vs Raj Kumar & Ors., MANU/HP/0121/2005.
- Damage suffered by consent is not a cause of action (volenti non fit injuries). The statements/allegations made by the Respondent No. 2 patently and latently involve her in the alleged fraud committed upon the court. Thus, she made herself disentitled for any equitable relief – Inderjit Singh Grewal Vs State of Punjab & Ors., MANU/SC/0988/2011: 2011 (12) SCC 588: 2011 (10) SCR 557.
- The driver, who sustained injury or his legal representative, for the death of the driver in connection with a vehicular accident, which took place due to the fault or negligence of the driver are not entitled for compensation in an application, filed under Section 166 of the MV Act. In such a case, the claimant must prove fault of the owner of the vehicle. The principle of volenti non fit injuria i.e. harm suffered voluntarily does not constitute legal injury and not actionable. No person can complain of the injury or loss to which he exposed himself having knowledge about risk or danger and for undertaking such act with free will – Mary Yimchunger Vs Chief Secretary, MANU/GH/0271/2014.
Author: Meenakshi Ogra Mukherjee a Principal Associate in Litigation, at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at firstname.lastname@example.org .