Legal Language Notes | B.A. LL.B. (Five Year Course) Semester 5 | Mumbai University | munotes

It is laid down by a recognised authority. In India that is Parliament and the State legislatures under articles 245 and 246, the President and Governors through Ordinances, and, in delegated form, the Government through rules, regulations, orders, bye-laws and notifications. It also includes the law declared by the Supreme Court, which article 141 makes binding on all courts within the territory of India.

It applies generally, not to one named person. A rule directed at one individual is an order, not a law.

It is backed by the force of the State. A rule nobody will enforce is a moral rule or a social convention. The distinguishing mark of a legal rule is that a court will act on it, and behind the court stands the machinery of the State.

Article 13(3)(a), the definition to quote

The Constitution does not define "law" for all purposes. It defines it for Part III, which contains the fundamental rights, and that definition is the one a student should be able to reproduce.

Article 13(3)(a): "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

Three things are worth noticing in that list. It is an inclusive definition, opening with "includes", so it widens rather than closes. It reaches subordinate legislation, so a bye-law of a municipality is "law" and can be struck down for violating a fundamental right just as an Act of Parliament can. And it expressly names custom or usage, which is the bridge to the next concept on MU's list.

Where Indian law actually comes from

The Constitution, which is the supreme law and the source of the power to make all the rest.

Legislation: Acts of Parliament and of the State legislatures. This is the largest source and the one that grows fastest.

Subordinate or delegated legislation: rules, regulations, notifications, orders and bye-laws made under an Act by the authority the Act names. Section 3(51) of the General Clauses Act 1897 defines "rule" as a rule made in exercise of a power conferred by any enactment.

Precedent, the decisions of courts. Article 141 makes the law declared by the Supreme Court binding on all courts in India, so a decision of that Court is a source of law and not merely a record of one.

Custom, where it satisfies the tests set out below.

Personal law, which for a first-year student is best understood as a body of rules derived from religion and custom, much of it now put into statutory form. Article 372 kept all law in force before the Constitution in force after it, until altered, repealed or amended, which is why Acts of 1872 and 1882 are still being applied today.

Custom

What it is

A custom is a practice which a community has followed for so long, and so consistently, that the law will enforce it as a rule even though no legislature ever enacted it.

Custom is the oldest source of law there is. Legislation is a recent invention by comparison. Long before anyone drafted an Act, disputes were settled by asking what had always been done in that place, in that trade or in that family, and the answer was treated as binding.

The statutory test

Note that there is no general Indian statute defining "custom" for all purposes. What exists is a definition inside one Act, and it is the one to quote because it puts the judge-made tests into statutory words.

Section 3(a) of the Hindu Marriage Act 1955: the expressions "custom" and "usage" signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family. There is a proviso that the rule must be certain and not unreasonable or opposed to public policy, and a second proviso that a family custom must not have been discontinued by the family.

The tests, taken apart

Pull that definition to pieces and you get the conditions a custom must satisfy. This is the list that earns marks.

One, antiquity. It must have been observed "for a long time". How long is not fixed by any number in Indian law; what matters is that it is old enough for people to have regarded it as binding rather than as a recent convenience.

Two, continuity. It must have been observed "continuously". A practice abandoned for a generation and revived is not a custom.

Three, uniformity. It must have been observed "uniformly". If half the community did one thing and half did another, no rule can be extracted.

Four, certainty. The proviso requires the rule to be "certain". A vague practice cannot be enforced, because a court could not say what it required.

Five, reasonableness. The proviso requires that it be "not unreasonable".

Six, not opposed to public policy, and, more generally, not contrary to any statute. A custom cannot override an Act. This is the single most important limit and it is where custom most often fails in modern cases.

Seven, it must be proved. Custom is a question of fact. The party who asserts a custom must prove it by evidence, and a court will not assume it.

Custom and the Constitution

Custom sits inside article 13(3)(a), which means a custom having the force of law is "law" for the purposes of Part III. The consequence is direct: a custom that violates a fundamental right is void to the extent of the violation, exactly as a statute would be.

That is not theoretical. In the Sabarimala case, worked at length in [Indian Young Lawyers Association v. State of Kerala], the majority tested a temple custom against articles 15 and 25 and held it could not stand. The minority judgment of Indu Malhotra J. took the opposite view of how far a court should test a religious practice at all. Both sides accepted that a custom is examinable; they differed on the standard.

Justice

Why no statute defines it

Justice is the standard by which law is judged, so it cannot be defined by law without circularity. What can be done, and what an examiner is looking for, is a clear account of the senses in which the word is used and of where the Constitution uses it.

The Preamble

The Preamble to the Constitution records that the people of India resolved to secure to all citizens JUSTICE, social, economic and political. Those three adjectives are the syllabus's own vocabulary and each means something distinct.

Social justice means the removal of inequalities of status: caste, sex, religion, place of birth. Articles 15, 16 and 17 are its operative provisions.

Economic justice means the removal of gross inequality of wealth and opportunity. Much of Part IV, the Directive Principles, is directed at it.

Political justice means an equal share in political power: one adult, one vote, of equal value.

Note carefully what the Preamble can and cannot do with this. In In re Berubari Union, AIR 1960 SC 845, it was argued that the Preamble itself prohibited the cession of Indian territory. Facts. The President referred to the Supreme Court under article 143(1) the question whether the Indo-Pakistan Agreement of 1958, dividing Berubari Union and exchanging the Cooch-Behar enclaves, involved a cession of territory and how it could be implemented. Held. Although it may be correct to describe the Preamble as a key to the mind of the makers of the Constitution, it forms no part of the Constitution, is not a source of any substantive power, and equally is not a source of any prohibition or limitation. Implementing the agreement needed an amendment under article 368. Why it matters here. The Preamble tells you what justice the Constitution is aiming at; it does not by itself confer a right or impose a bar. The chapter on internal aids, [Internal Aids to the Interpretation of a Statute], returns to this case for the general rule about preambles.

The classical divisions

Two divisions are worth knowing, because they let you answer a question about justice without drifting into opinion.

Distributive justice is about how benefits and burdens are shared out in a society: who gets the reservation, who pays the tax, who receives the subsidy. It is addressed mainly to the legislature.

Corrective justice is about restoring the balance after a wrong: damages, restitution, punishment. It is addressed mainly to the courts.

Procedural justice, sometimes called natural justice, is about how a decision is reached rather than what it is. Two rules make it up: nobody may be a judge in their own cause, and both sides must be heard. A decision can be substantively right and still be set aside for breach of these.

A worked example

Anjali's grandfather dies in a village in Maharashtra. A local practice, which the family says has been followed in their community for as long as anybody can remember, gives the family house to the eldest son alone. Anjali's brother relies on it. Anjali says she is entitled to an equal share.

Step one: is the practice a custom in law? Her brother must prove antiquity, continuity and uniformity by evidence. Assertion is not enough; custom is a question of fact.

Step two: is it certain and reasonable? A rule that says "the eldest son takes the house" is at least certain. Whether it is reasonable is a separate question.

Step three, and this is where it fails: does it conflict with a statute? Since the Hindu Succession (Amendment) Act 2005, a daughter is a coparcener by birth in the same manner as a son. A custom cannot override an Act of Parliament. That is the sixth test, and it is decisive.

Step four: article 13(3)(a). Even without the statute, the custom has the force of law and is therefore "law" for Part III, so it would have to survive article 15's prohibition of discrimination on grounds of sex.

Notice how the analysis ran. Not "this is unfair", which is an appeal to justice in the abstract, but "this fails test six", which is an argument a court can act on. That is the difference the subject exists to teach.

Distinctions table

What these words do NOT mean

Law is not the same as morality. They overlap and they are not identical. Ingratitude is immoral and is not unlawful. Parking on a yellow line is unlawful and is not immoral. A student who defines law as "rules of right conduct" has defined morality.

Custom is not "what people usually do". Most habits are not customs. Without antiquity, continuity, uniformity, certainty and consistency with statute, a practice is a habit, and a court will not enforce it.

Custom does not beat a statute. This is the error most often made in an exam answer. Custom is a source of law that yields to legislation, not one that competes with it.

Justice is not the same as law. A rule can be perfectly valid and produce an unjust result; that is why appeals, amendments and the Directive Principles exist. Equally, an answer that treats "unjust" and "illegal" as the same word is wrong.

Limits and criticism

Custom is a shrinking source. As Parliament and the legislatures cover more ground, and as codification proceeds, there is less space where a custom can operate at all. Much of what was once Hindu customary law is now in the Hindu Marriage Act 1955 and the Hindu Succession Act 1956.

Proving a custom is hard and getting harder. Oral evidence of what a community has always done becomes weaker as communities disperse.

"Justice" in the Preamble is not directly enforceable. Berubari settles that the Preamble is not a source of power or of prohibition. Its value is as a guide to construction and as a statement of purpose, and that is the honest way to use it in an answer.

Quick revision

Law: three senses, a body of rules, one enactment, a law of nature. Made by a recognised authority, general in application, backed by the force of the State. Article 13(3)(a) includes Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law. Sources: Constitution, legislation, delegated legislation, precedent (article 141), custom, personal law. Article 372 continued pre-Constitution law.

Custom: section 3(a), Hindu Marriage Act 1955. Continuously and uniformly observed for a long time, has obtained the force of law, certain, not unreasonable, not opposed to public policy. Seven tests: antiquity, continuity, uniformity, certainty, reasonableness, not contrary to statute or public policy, and proved as a fact. Inside "law" in article 13(3)(a), so testable against the fundamental rights.

Justice: not statutorily defined. Preamble: social, economic and political. Distributive, corrective and procedural. In re Berubari Union, AIR 1960 SC 845: the Preamble is a key to the mind of the makers, not a source of power or of prohibition.

Test yourself

1. Define "law" as the Constitution defines it, and say for what purpose that definition operates.

Article 13(3)(a) provides that in that article, unless the context otherwise requires, "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. It is an inclusive definition and it operates for Part III, the fundamental rights, so that anything within it can be tested against those rights and is void to the extent of any inconsistency.

2. State the tests a custom must satisfy before a court will enforce it.

Antiquity, that it has been observed for a long time; continuity, that observance has not been broken; uniformity, that it has been observed consistently; certainty, so that a court can say what it requires; reasonableness; that it is not opposed to public policy and not contrary to any statute; and that it is proved by evidence, custom being a question of fact. Section 3(a) of the Hindu Marriage Act 1955 puts the first five into statutory words for that Act.

3. Can a custom prevail over an Act of Parliament?

No. Custom is a source of law that yields to legislation. A custom inconsistent with a statute is unenforceable to the extent of the inconsistency, and a custom having the force of law is also "law" within article 13(3)(a), so it must additionally survive the fundamental rights.

4. What did the Supreme Court hold about the Preamble in the Berubari reference?

That although it may be correct to describe the Preamble as a key to the mind of the makers of the Constitution, it forms no part of the Constitution and cannot be regarded as the source of any substantive power, and that the same is true of prohibitions and limitations. The argument that the Preamble by itself prevented the cession of territory was therefore rejected, and the Court held that a constitutional amendment under article 368 was required.

5. Distinguish law from morality with two examples.

Law is enforced by the State through courts; morality is not. The two overlap without coinciding. Ingratitude to a benefactor is immoral and no court will act on it. Parking a car on a yellow line is unlawful and nobody would call it immoral. A definition of law as "rules of right conduct" is a definition of morality and will lose marks.

6. What are the three kinds of justice named in the Preamble, and what does each mean?

Social justice, the removal of inequalities of status such as caste, sex, religion and place of birth, given effect by articles 15, 16 and 17. Economic justice, the reduction of gross inequality of wealth and of opportunity, addressed largely by the Directive Principles in Part IV. Political justice, an equal share in political power, expressed in universal adult suffrage under article 326.

Positive and negative. A positive right requires somebody to do something, such as pay. A negative right requires somebody to refrain, such as not to trespass.

Right in rem and right in personam. A right in rem is available against the world at large: ownership of land is the standard example, because everybody is under a duty not to interfere with it. A right in personam is available against a definite person only, and a right under a contract is the standard example, because only the other contracting party owes the duty. The distinction decides who can be sued.

Legal and equitable, a division inherited from English law and of limited use in India, where the two systems were never administered separately.

Fundamental rights, which are the rights in Part III of the Constitution, enforceable against the State and, in some cases, against private persons. They are dealt with in the chapters on writs and on the six named judgments.

Hohfeld, briefly, and why it is worth two sentences

The word "right" is used loosely for four different relations, and a well known analysis by Hohfeld separates them: a claim, which is a right in the strict sense with a duty facing it; a liberty or privilege, meaning simply the absence of a duty not to do something; a power, an ability to change legal relations, such as the power to make a will; and an immunity, a freedom from another's power.

Two sentences on this will improve an answer on the meaning of "right". A whole page on it will lose marks in a first-year paper, because the question asked is almost always simpler.

Duty

What it is

A duty is an obligation to act or to refrain from acting, imposed by law, whose breach the law treats as a wrong.

Correlativity, and its one exception

Every right has a duty facing it. That is what makes the right real: a right without anybody bound by it is a wish.

Does the reverse hold, so that every duty has a right facing it? Mostly yes, and there is a familiar class of exceptions: absolute duties, owed to the State or to the public generally rather than to any identified person. The duty not to commit an offence is the clearest case. Nobody holds a corresponding private right that they can sue on; the State prosecutes.

Fundamental duties

Article 51A of the Constitution lists the fundamental duties of every citizen: to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; to cherish the noble ideals of the freedom struggle; to protect the sovereignty, unity and integrity of India; to defend the country; to promote harmony and the spirit of common brotherhood; to value and preserve the rich heritage of the composite culture; to protect and improve the natural environment; to develop the scientific temper; to safeguard public property and abjure violence; to strive towards excellence; and the duty of a parent or guardian to provide opportunities for education to a child between six and fourteen years.

Note the point that carries marks: article 51A is not directly enforceable. No court will issue a writ compelling a citizen to develop a scientific temper. Its value is as a guide to construction and as a foundation on which the legislature may build.

Wrong

What it is

A wrong is the breach of a legal duty. That is the whole definition, and it is the one to write down.

A moral wrong is not a legal wrong unless the law has made the conduct a breach of duty. This follows from the chapter before this one: law and morality overlap and are not the same.

Civil wrong and criminal wrong

This division decides who brings the case, what has to be proved, and what the court can do.

A civil wrong is a breach of duty owed to a determinate person, who sues in their own name for a remedy that compensates or restores. Breach of contract, tort and breach of trust are the main classes.

A criminal wrong, or offence, is a breach of duty owed to the community. The State prosecutes, in the name of the State, and the outcome is punishment rather than compensation. "Offence" is defined in section 3(38) of the General Clauses Act 1897 as any act or omission made punishable by any law for the time being in force, and it is dealt with in [Fact, Person, Offence and State].

The same act can be both. If Rahul drives negligently and injures Sameer, Sameer may sue in tort for damages and the State may prosecute for the offence. The two proceedings are independent: an acquittal does not bar the civil suit, because the standard of proof is different.

Two Latin tags worth knowing

Damnum sine injuria, meaning loss without legal injury. A person suffers real damage but no legal right of theirs has been violated, so there is no wrong and no remedy. A new shop opens next to yours and your profits fall. That is loss, and it is not a wrong, because you have no right to be free of competition.

Injuria sine damno, meaning legal injury without loss. A legal right is violated but no actual damage follows. A trespass across an empty field harms nothing and is still actionable, because the right to exclusive possession has been invaded. Rights in rem, such as ownership, are typically actionable without proof of damage.

Remedy

What it is

A remedy is what a court gives to enforce a right or to redress a wrong.

The maxim

Ubi jus ibi remedium: where there is a right, there is a remedy. Understand what it means and what it does not. It does not mean a court will invent relief whenever somebody feels wronged. It means that the law will not recognise a right and then leave it bare, so where a legal right exists and has been violated, the law provides some means of enforcing it.

The corollary is used constantly in argument: if the law gives no remedy at all for a supposed injury, that is a strong indication no legal right was involved. That is the reasoning behind damnum sine injuria.

The kinds of remedy

Damages, a money payment to compensate for loss. The commonest civil remedy.

Specific relief, where money is not enough and the court orders the very thing to be done. The Specific Relief Act 1963 governs it. Section 4 states the boundary: specific relief can be granted only for enforcing individual civil rights and not for the mere purpose of enforcing a penal law.

Declaration. Section 34 of the Specific Relief Act allows a person entitled to any legal character, or to any right as to property, to sue for a declaration that he is so entitled. The court declares the position; it does not order anybody to do anything.

Injunction, an order to do or refrain from doing something. Section 36 says preventive relief is granted at the discretion of the court by injunction, temporary or perpetual. Section 37(1) says temporary injunctions continue until a specified time or until further order and may be granted at any stage of a suit, being regulated by the Code of Civil Procedure 1908. Section 37(2) says a perpetual injunction can only be granted by the decree at the hearing and on the merits, and perpetually restrains the defendant from an act contrary to the plaintiff's rights. Section 38 sets out when a perpetual injunction may be granted. Injunctions are worked in full in [Writ, Stay Order, Injunction and Adjournment].

Restitution, restoring a party to the position they were in before.

Constitutional remedies, the writs under articles 32 and 226, dealt with in [Writ, Stay Order, Injunction and Adjournment].

Punishment, which is the criminal law's answer to a criminal wrong, and is not a remedy in the private law sense at all.

The remedy can die while the right lives

Two situations, and both are examinable.

Limitation. Section 3(1) of the Limitation Act 1963 provides that, subject to sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. The right is not extinguished by lapse of time in the ordinary case; the ability to enforce it in court is. The maxim behind this rule, vigilantibus, non dormientibus, jura subveniunt, meaning the law assists those who are vigilant and not those who sleep on their rights, is worked in [Legal Maxims: the First Eight].

A right with no forum. If the only court that could hear the claim has had its jurisdiction ousted, the right may exist and be unenforceable. Whether jurisdiction has in fact been ousted is a question dealt with in [International Law, Arbitration, Jurisdiction and Amicus Curiae].

A worked example

Meera owns a plot in Thane with a right of way over Nikhil's adjoining land, granted by a registered deed in 2015. In March 2026 Nikhil builds a wall across the path.

The right. Meera has an easement, a right in rem over Nikhil's land, whose title is the deed of 2015. Its content is passage; its object is the strip of land; the person of inherence is Meera; the person of incidence is Nikhil and, because it is a right in rem, everybody else as well.

The duty. Nikhil is under a negative duty not to obstruct the way.

The wrong. Building the wall is a breach of that duty and so a civil wrong. Note that Meera need not prove she lost money: this is injuria sine damno, an invasion of a right which is actionable in itself.

The remedy. Damages would be useless, because what Meera wants is to use the path. So she asks for an injunction. She will seek a temporary injunction under section 37(1) of the Specific Relief Act read with the Code of Civil Procedure to have the wall left alone or removed while the suit runs, and a mandatory perpetual injunction at the hearing under sections 37(2) and 38 requiring the wall to be pulled down. She may add a claim for a declaration under section 34 that the right of way exists.

And the trap. If Meera waits until 2036 to sue, section 3 of the Limitation Act will require the court to dismiss the suit even if Nikhil never raises the point. Her right will still exist; her remedy will be gone.

Distinctions table

What these words do NOT mean

A right is not the same as what you want. An interest becomes a right only when the law recognises and protects it. "I have a right to be left alone by competitors" is not a right, which is why damnum sine injuria exists.

A duty is not always owed to somebody in particular. Absolute duties are owed to the State or the public, and the criminal law is built on them.

A wrong is not the same as harm. Harm without breach of duty is damnum sine injuria and gives nothing. Breach of duty without harm is injuria sine damno and can still give a remedy.

A remedy is not automatic. Specific relief and injunctions are discretionary: section 36 says preventive relief is granted "at the discretion of the court".

Losing the remedy is not always losing the right. Limitation ordinarily bars the suit and leaves the right standing, which is why a time barred debt voluntarily paid is validly paid.

Limits and criticism

Correlativity is a useful rule and not a universal one. Absolute duties have no corresponding private right, and some rights, on the Hohfeldian analysis, are liberties with no duty facing them at all.

Article 51A is a list without a sanction, and it is fairly criticised for that. The answer usually given is that it guides interpretation and gives the legislature a foothold, which is real but modest.

Ubi jus ibi remedium is a principle, not a rule of jurisdiction. It does not create a court where none exists, and it does not survive an express statutory bar.

Quick revision

Right: an interest recognised and protected by law, whose violation is a legal wrong. Five elements: holder, person of incidence, content, object, title. Kinds: perfect and imperfect, positive and negative, in rem and in personam, fundamental.

Duty: an obligation imposed by law. Correlative to a right, except an absolute duty owed to the State. Article 51A, eleven fundamental duties, not enforceable.

Wrong: breach of a legal duty. Civil, sued on by the injured person for a remedy; criminal, prosecuted by the State for punishment. The same act can be both. Damnum sine injuria, loss without legal injury, no remedy. Injuria sine damno, legal injury without loss, actionable.

Remedy: damages, specific relief, declaration (Specific Relief Act 1963, s.34), injunction (ss.36, 37, 38), restitution, writs, punishment. Ubi jus ibi remedium. Limitation Act 1963, s.3: a suit filed after the prescribed period shall be dismissed although limitation has not been set up as a defence.

Test yourself

1. Define a legal right and name its five elements.

A legal right is an interest recognised and protected by law, the violation of which is a legal wrong. Its five elements are the holder or person of inherence; the person of incidence, who bears the correlative duty; the content, being what the right entitles the holder to; the object, the thing to which it relates; and the title, the fact or event from which it arose.

2. Explain the correlativity of rights and duties, and state its exception.

Every legal right in one person implies a corresponding legal duty in another, and it is that duty which makes the right effective. The converse is not universal: absolute duties are owed to the State or to the public generally and no determinate person holds a matching right. The duty not to commit an offence is the standard example, which is why the State and not a private individual prosecutes.

3. Distinguish damnum sine injuria from injuria sine damno, with an example of each.

Damnum sine injuria is damage without legal injury: real loss is suffered but no legal right has been violated, so there is no wrong and no remedy, as where a new competing shop reduces a trader's profits. Injuria sine damno is legal injury without damage: a right is violated although no loss follows, as in a trespass over vacant land, and it is actionable because the right to exclusive possession has itself been invaded.

4. A debt becomes time barred. Has the creditor's right been extinguished?

Ordinarily no. Section 3 of the Limitation Act 1963 requires the court to dismiss a suit filed after the prescribed period, and to do so although limitation has not been pleaded, so the remedy by suit is lost. The right itself survives, which is why a payment voluntarily made by the debtor after the period has expired is a good payment and cannot be recovered back. It is an example of an imperfect right.

5. What is the difference between a temporary and a perpetual injunction?

A temporary injunction, under section 37(1) of the Specific Relief Act 1963, continues until a specified time or until the further order of the court, may be granted at any stage of a suit, and is regulated by the Code of Civil Procedure 1908. A perpetual injunction, under section 37(2), can be granted only by the decree made at the hearing and upon the merits, and perpetually restrains the defendant from asserting a right or committing an act contrary to the plaintiff's rights.

6. Are the fundamental duties in article 51A enforceable in a court?

Not directly. Article 51A lists eleven duties of every citizen but attaches no sanction and creates no cause of action, so no writ will issue to compel a citizen to perform one. Its practical value is that courts use it in construing statutes and in weighing the reasonableness of restrictions, and it gives the legislature a constitutional foothold for laws that give effect to those duties.

The half students miss

Read the definition again. It has two limbs, and the second is the important one.

The first limb is physical: things, states of things and relations of things that the senses can perceive. A knife on a table. A wall that has been built. A signature on a page.

The second limb is mental: any mental condition of which a person is conscious. That a person had a particular intention, or knew something, or acted in good faith, or held an opinion, is a fact. It is not merely an inference about a fact; the statute says it is one.

This matters everywhere. Almost every offence requires a guilty mind, and almost every contractual dispute turns on what somebody intended. If a state of mind were not a fact, it could not be proved by evidence at all, and none of those cases could be decided.

Fact and law

Two words a first-year student needs, because they decide what an appeal can be about.

A question of fact is a question about what happened: was the signature genuine, was the shop open, did the accused know.

A question of law is a question about what the rules require: does that conduct fall inside section 318, is the suit barred by limitation.

The line matters because a second appeal under section 100 of the Code of Civil Procedure 1908 lies only on a substantial question of law, and because custom, as [Law, Custom and Justice] explains, is a question of fact that must be proved by evidence.

Facts in issue are the facts that the case actually turns on, which the pleadings or the charge put in dispute. Relevant facts are facts connected with them in a way the Adhiniyam recognises, so that evidence about them may be given.

Person

The definition

Section 3(42) of the General Clauses Act 1897: "person" shall include any company or association or body of individuals, whether incorporated or not.

Section 2(26) of the Bharatiya Nyaya Sanhita 2023 is in the same terms: "person" includes any company or association or body of persons, whether incorporated or not.

Natural and legal persons

A natural person is a human being.

A legal person, also called an artificial or juristic person, is anything else the law treats as capable of holding rights and owing duties. A company incorporated under the Companies Act 2013 is the standard example: it can own property in its own name, contract, sue and be sued, and it continues to exist when its members change or die. A registered society, a corporation created by statute such as a municipal corporation, and an idol in a Hindu temple treated as a juristic person for the purpose of holding property, are all legal persons.

What follows from that

A company can commit an offence. Because "person" includes a company, a penal provision that speaks of a person reaches a company, subject to the practical limit that a sentence of imprisonment cannot be executed against it.

A company can hold fundamental rights, but not all of them. Rights available to "any person", such as article 14, are available to a company. Rights available only to "citizens", such as those in article 19, are not, because a company is not a citizen.

A partnership firm is not a separate legal person in general law, though it is treated as a unit for some purposes such as suing in the firm name under Order XXX of the Code of Civil Procedure 1908.

The word to be careful about

"Person" in the criminal law includes the accused, the victim and third parties, and a provision often has to be read to see which is meant. Note also that in the Bharatiya Nyaya Sanhita a separate word, "public", is defined in section 2(27) as including any class of the public or any community, and it is not interchangeable with "person".

Offence

The definitions, and there are three

The general definition, and the one to quote unless the question is about a particular Code, is section 3(38) of the General Clauses Act 1897: "offence" shall mean any act or omission made punishable by any law for the time being in force.

The procedural definition is section 2(1)(q) of the Bharatiya Nagarik Suraksha Sanhita 2023, which is in the same words and adds that it includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act 1871.

The penal definition is section 2(24) of the Bharatiya Nyaya Sanhita 2023, and it is narrower and more complicated. Except in the chapters and sections it lists, "offence" means a thing made punishable by the Sanhita itself. In Chapter III and in a long list of named sections, it means a thing punishable under the Sanhita or under any special or local law. In a further list of sections it carries that wider meaning only where the act punishable under the special or local law is punishable with imprisonment for six months or more.

What the general definition actually tells you

An offence is defined by its consequence, not by its wickedness. If a law makes an act or omission punishable, it is an offence. If no law does, it is not, however bad it is. This is the legal answer to "surely that should be a crime".

An omission counts. Failing to do something the law requires is as much an offence as doing something the law forbids, where the law makes that failure punishable. Section 3(2) of the General Clauses Act reinforces this: "act", used with reference to an offence or a civil wrong, includes a series of acts, and words which refer to acts done extend also to illegal omissions.

"For the time being in force" are words that carry weight. An act is an offence only if a law making it punishable was in force when it was done. That is why article 20(1) forbids conviction for an act that was not an offence at the time of commission, and it is the basis of the rule against retrospective penal law, worked in [Prospective Application and Retrospective Effect].

Two classifications worth carrying

Cognizable and non-cognizable. Section 2(1)(g) of the Sanhita defines a cognizable offence as one for which a police officer may, in accordance with the First Schedule or any other law, arrest without warrant. Everything else is non-cognizable.

Bailable and non-bailable. Section 2(1)(c) defines a bailable offence as one shown as bailable in the First Schedule or made bailable by any other law, and a non-bailable offence as any other offence. This is dealt with further in [Cause of Action, Issue, Charge and Bail].

State

The definition

Article 12 of the Constitution: in Part III, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Why this is one of the most litigated definitions in Indian law

Part III contains the fundamental rights, and most of them are enforceable against the State. So whether a body is "the State" decides whether a citizen can bring a writ petition against it at all. A refusal of admission by a State university is testable against article 14; the same refusal by a purely private club is not.

The four categories in the article, and the fifth the courts added

The Government and Parliament of India. The Union executive and legislature.

The Government and the Legislature of each State.

All local authorities. Municipal corporations, municipalities, panchayats, improvement trusts, port trusts. The word "local authority" is itself defined in section 3(31) of the General Clauses Act 1897.

All other authorities within the territory of India or under the control of the Government of India. This is the open-ended limb and it is where the litigation is. The courts have read it to cover statutory corporations and, beyond them, bodies which are instrumentalities or agencies of the State, looking at matters such as whether the entire share capital is held by the Government, whether it enjoys a monopoly conferred or protected by the State, whether it is under deep and pervasive State control, and whether its functions are of public importance and closely related to governmental functions.

The fifth category is the judiciary, and the position is more careful than students usually state it. A court is plainly an authority. The working position is that the judiciary is "the State" when it acts on its administrative side, and that a judicial order made in a dispute between two private parties is not ordinarily attacked as a violation of fundamental rights.

The escape clause

Article 12 opens with "unless the context otherwise requires", and article 12 is a definition for Part III only. Elsewhere in the Constitution, "State" often means the political unit, as in article 1 or in the First Schedule. Reading the article 12 meaning into article 246 would produce nonsense.

A worked example

Sunita is refused a seat in a professional college. She wants to file a writ petition under article 226 alleging that the refusal violates article 14.

Is the college "the State"? If it is a government college, yes, as part of the State Government's own machinery. If it is a university created by a State Act, it is a statutory authority and so an "other authority". If it is a private unaided college with no State funding and no statutory status, it is ordinarily not the State, and Sunita's remedy against it lies elsewhere.

What are the facts in issue? That she applied, that she was eligible, that a seat was available, that the refusal happened, and, if she alleges hostile discrimination, the state of mind of the persons who refused. The last one is a fact, because section 2(1)(f) of the Adhiniyam brings a mental condition inside the word.

Is a "person" involved? Yes, in two senses. Sunita is a natural person. The college, if incorporated or registered, is a legal person, and it is that legal person, not its individual officers, who will be the respondent.

Is any offence involved? On these facts, no. Refusing admission is not made punishable by any law for the time being in force, so it is not an offence within section 3(38), whatever anybody thinks of it. That is exactly the point of defining an offence by punishability.

Distinctions table

What these words do NOT mean

"Fact" is not limited to what you can see. A state of mind is a fact by definition. A student who writes that intention is "not a fact but an inference" has contradicted the statute.

"Person" is not limited to human beings, and forgetting this makes company law incomprehensible.

An offence is not simply something wrong. Unless a law in force makes the act or omission punishable, it is not an offence.

"State" in article 12 is not the same as a State of the Union. Article 12 defines the word for Part III; Maharashtra is a State in the other sense.

Article 12 is not exhaustive. It says "includes", so it widens the ordinary meaning rather than confining it, which is why the courts have been able to bring instrumentalities of the State inside it.

Limits and criticism

The open-ended fourth limb of article 12 has been criticised as uncertain. Whether a body is an instrumentality is decided on a multi-factor test, and multi-factor tests are hard to predict. The competing view is that a rigid rule would let the State escape the fundamental rights by choosing a corporate form for what is really governmental work.

The three definitions of "offence" do not read alike, and section 2(24) of the Bharatiya Nyaya Sanhita in particular is a definition by exception and cross-reference which is very hard to read. For general purposes the General Clauses Act definition is the one to use, and it should be identified as such.

The line between fact and law is not always clean. Whether particular conduct amounts to negligence, for instance, is often described as a mixed question of fact and law, and appellate courts spend a good deal of time on which side of the line a question falls.

Quick revision

Fact: Bharatiya Sakshya Adhiniyam 2023, s.2(1)(f). Two limbs: anything perceptible by the senses, and any mental condition of which a person is conscious. A state of mind IS a fact. Facts in issue and relevant facts. Question of fact against question of law; second appeal under CPC s.100 lies only on a substantial question of law.

Person: General Clauses Act 1897, s.3(42), and Bharatiya Nyaya Sanhita 2023, s.2(26). Includes any company or association or body of individuals, incorporated or not. Natural and legal persons. A company holds rights given to "any person" but not those given to "citizens".

Offence: General Clauses Act 1897, s.3(38), and BNSS 2023, s.2(1)(q): any act or omission made punishable by any law for the time being in force. BNS 2023, s.2(24) is narrower and lists exceptions. Section 3(2) of the General Clauses Act extends "act" to illegal omissions. Cognizable and non-cognizable, s.2(1)(g) BNSS; bailable and non-bailable, s.2(1)(c) BNSS.

State: Constitution, article 12, for Part III only. Government and Parliament of India; Government and Legislature of each State; all local authorities; all other authorities within India or under the control of the Government of India. "Includes", so not exhaustive.

Test yourself

1. Give the statutory definition of "fact" and explain why its second limb matters.

Section 2(1)(f) of the Bharatiya Sakshya Adhiniyam 2023 says "fact" means and includes any thing, state of things or relation of things capable of being perceived by the senses, and any mental condition of which any person is conscious. The second limb matters because almost every offence requires a guilty mind and most civil disputes turn on intention. By making a state of mind a fact, the statute makes it something that can be proved by evidence, without which those cases could not be tried at all.

2. Is a company a "person"? What follows?

Yes. Section 3(42) of the General Clauses Act 1897 and section 2(26) of the Bharatiya Nyaya Sanhita 2023 both include any company or association or body of individuals, whether incorporated or not. It follows that a company can own property, contract, sue and be sued in its own name, and can be prosecuted for an offence, subject to the practical limit that it cannot be imprisoned. It also holds those fundamental rights conferred on "any person", such as article 14, but not those conferred on citizens, such as those in article 19.

3. Define "offence" and explain the significance of the words "for the time being in force".

Section 3(38) of the General Clauses Act 1897 defines an offence as any act or omission made punishable by any law for the time being in force. The quoted words mean that the act must have been punishable when it was done. An act that was lawful when committed does not become an offence because a later statute forbids it, which is what article 20(1) of the Constitution guarantees, and it is the criminal law's application of the presumption against retrospective operation.

4. Why does it matter whether a body is "the State" under article 12?

Because most fundamental rights in Part III are enforceable against the State, so the answer decides whether a writ petition can be brought at all. A body within article 12 must comply with articles 14, 15, 16 and the rest; a purely private body ordinarily need not, and a person aggrieved by it must look to contract, tort or a statutory remedy instead.

5. Article 12 lists four categories. Which is the contested one, and how do courts approach it?

"All other authorities within the territory of India or under the control of the Government of India". Courts have read it to include statutory corporations and bodies that are instrumentalities or agencies of the State, weighing such matters as government shareholding, a State conferred or protected monopoly, deep and pervasive State control, financial assistance meeting most of the expenditure, and functions of public importance closely related to governmental functions. No single factor is decisive.

6. Distinguish a question of fact from a question of law, and give one consequence of the distinction.

A question of fact asks what happened and is decided on evidence; a question of law asks what the legal rule requires and is decided by construing the provision and the precedents. One consequence is that a second appeal under section 100 of the Code of Civil Procedure 1908 lies only where a substantial question of law is involved, so a party dissatisfied with a concurrent finding of fact ordinarily has no further appeal.

The stages, in order

A student who can list these can answer almost any question about civil procedure at first-year level. Plaint filed. Summons issued to the defendant under section 27. Written statement filed by the defendant. Issues framed by the court under Order XIV. Evidence led by both sides. Arguments. Judgment. Decree drawn up. Execution, or appeal.

Plaint

What it is

A plaint is the written statement of the plaintiff's claim, presented to the court, which institutes the suit. It is the first pleading in a civil case.

A pleading, for a reader meeting the word for the first time, means a plaint or a written statement: the formal documents in which each side sets out the facts it relies on. Order VI is the Order that governs pleadings generally.

What must be in it

Order VII rule 1 lists the particulars a plaint must contain, and this list is asked directly. The plaint shall contain:

the name of the court in which the suit is brought; the name, description and place of residence of the plaintiff; the name, description and place of residence of the defendant, so far as they can be ascertained; where the plaintiff or defendant is a minor or a person of unsound mind, a statement to that effect; the facts constituting the cause of action and when it arose; the facts showing that the court has jurisdiction; the relief which the plaintiff claims; where the plaintiff has allowed a set-off or relinquished part of his claim, the amount so allowed or relinquished; and a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of court fees.

Two of those carry most of the weight. The cause of action, which is worked in [Cause of Action, Issue, Charge and Bail], is the bundle of facts the plaintiff must prove to succeed. The relief claimed is what the plaintiff actually wants the court to do, and a court will not ordinarily give relief that was never asked for.

Verification

Order VI rule 15(1) requires every pleading to be verified at the foot by the party, or by one of the parties pleading, or by some other person proved to the satisfaction of the court to be acquainted with the facts. Rule 15(2) requires the person verifying to specify, by reference to the numbered paragraphs, what is verified of his own knowledge and what upon information received and believed to be true.

That distinction is not a formality. A witness can be cross-examined on the difference between what they saw and what they were told.

When a plaint is thrown out

Order VII rule 11 says the plaint shall be rejected in these cases: where it does not disclose a cause of action; where the relief claimed is undervalued and the plaintiff fails to correct the valuation within the time fixed; where the relief is properly valued but the plaint is on insufficiently stamped paper and the plaintiff fails to supply the stamp paper within the time fixed; where the suit appears from the statement in the plaint to be barred by any law; where it is not filed in duplicate; and where the plaintiff fails to comply with rule 9.

Note two things. The word is "shall", so rejection is not discretionary once a ground is made out, which is a point to carry into [Interpretation of Directory and Mandatory Provisions]. And clause (d) says "appears from the statement in the plaint": the court looks at the plaint itself, not at the defence.

Complaint

The definition

Section 2(1)(h) of the Bharatiya Nagarik Suraksha Sanhita 2023: "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Sanhita, that some person, whether known or unknown, has committed an offence, but does not include a police report.

There is an Explanation: a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and the police officer making it shall be deemed to be the complainant.

The equivalent provision of the repealed Code of Criminal Procedure 1973 was section 2(d), in substantially the same words.

Taking the definition apart

"Any allegation made orally or in writing". A complaint need not be a document at all. This is the sharpest contrast with a plaint, which must be written and must be presented.

"To a Magistrate". Not to the police. An allegation made to the police is not a complaint within this definition; it may lead to a first information report, which is a different thing.

"With a view to his taking action under this Sanhita". The person must be asking the Magistrate to act, not merely informing him.

"That some person, whether known or unknown, has committed an offence". The accused need not be named. And what is alleged must be an offence, which as [Fact, Person, Offence and State] explains means an act or omission made punishable by a law in force.

"But does not include a police report". This is the exclusion that carries the Explanation, and it is the line between the two routes into a criminal court.

What happens to a complaint

Section 210(1) provides that any Magistrate of the first class, and any Magistrate of the second class specially empowered, may take cognizance of any offence upon receiving a complaint of facts which constitutes such offence; upon a police report of such facts; or upon information received from any person other than a police officer, or upon his own knowledge, that the offence has been committed. "Taking cognizance" means the Magistrate applying his mind to the offence for the purpose of proceeding.

Section 223(1) then requires a Magistrate taking cognizance on complaint to examine the complainant and any witnesses present upon oath, and to reduce the substance of the examination to writing, signed by the complainant, the witnesses and the Magistrate. A proviso in the Sanhita adds a requirement that did not exist under the old Code: no cognizance shall be taken without giving the accused an opportunity of being heard. Further provisos excuse the examination where the complaint is in writing and is made by a public servant acting in the discharge of official duties or by a court, or where the case is made over to another Magistrate under section 212.

Section 223(2) adds a further protection for public servants: no cognizance on a complaint against a public servant for an offence alleged in the discharge of official functions unless the public servant has had an opportunity to make assertions about the situation and a report from a superior officer has been received.

Section 224 deals with a complaint made to a Magistrate who is not competent to take cognizance: if it is in writing he returns it for presentation to the proper court with an endorsement, and if it is not in writing he directs the complainant to the proper court.

Affidavit

The definition

No Indian statute defines "affidavit" positively. What exists is section 3(3) of the General Clauses Act 1897, which extends the word: "affidavit" shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing.

So the working definition, which is what to write, is this: an affidavit is a written statement of facts, made by a person called the deponent, sworn or affirmed before an officer authorised to administer an oath. It is evidence, given on oath, in writing, without the deponent standing in the witness box.

The Act's extension exists because not everybody swears on a religious text. A person who by law may affirm instead of swearing makes an affirmation, and section 3(3) puts it on the same footing.

The rules that govern it in a civil case

Order XIX rule 1: any court may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable. There is a proviso that where it appears that either party bona fide desires the production of a witness for cross-examination, and the witness can be produced, an order shall not be made allowing the evidence to be given by affidavit.

That proviso is the whole balance of the rule. An affidavit is convenient, and the right to cross-examine is more important than convenience.

Order XIX rule 2: upon any application, evidence may be given by affidavit, but the court may order the deponent to attend for cross-examination.

Section 26(2) of the Code requires that in every plaint, facts shall be proved by affidavit, in the form and manner prescribed under Order VI rule 15A.

What an affidavit must and must not contain

It states facts, not argument and not law. It states them in the first person, in numbered paragraphs. It distinguishes what the deponent knows of his own knowledge from what he believes on information, and it says the source of the information.

A false statement in an affidavit is made on oath, which is why an affidavit is taken seriously and why swearing a false one exposes the deponent to prosecution.

A worked example

Two disputes arising out of one incident. Priya's neighbour Vikram builds a shed that encroaches two feet onto her plot in Kalyan, and in the argument that follows he pushes her and she falls.

The civil side. Priya wants the shed removed. She files a plaint in the competent civil court. It must contain the particulars in Order VII rule 1: the court's name, both parties' names and addresses, the facts constituting the cause of action, namely her title, his encroachment and the date, the facts showing jurisdiction, namely that the property is situated within that court's local limits, the relief claimed, namely a mandatory injunction to remove the shed and a declaration of title, and the value of the subject matter. She verifies it at the foot under Order VI rule 15, specifying what she knows personally and what she was told by the surveyor. On presentation under section 26 and Order IV, the suit is instituted. Because she also wants the construction stopped meanwhile, she applies for a temporary injunction and supports the application by an affidavit under Order XIX rule 2, which Vikram may ask the court to have her attend and be cross-examined on.

The criminal side. The push is a separate matter. Priya may go to the police, or she may go directly to the Magistrate and make a complaint under section 2(1)(h) of the Sanhita, orally or in writing, alleging that Vikram has committed an offence. The Magistrate, if he proposes to take cognizance under section 210(1)(a), must examine her on oath under section 223(1), reduce the substance to writing, and, under the first proviso, give Vikram an opportunity of being heard before taking cognizance.

Two proceedings, one incident. Neither bars the other, because as [Right, Duty, Wrong and Remedy] explains a single act can be both a civil wrong and a criminal one.

Distinctions table

What these words do NOT mean

A complaint is not a first information report. An FIR is information about a cognizable offence given to the police. A complaint is an allegation made to a Magistrate, and section 2(1)(h) expressly excludes a police report.

A complaint need not name the accused. The definition says "whether known or unknown".

A plaint is not the suit. The plaint is the document; the suit is the proceeding the document begins.

An affidavit is not a pleading. A plaint is a pleading and states the case; an affidavit is evidence and states facts on oath. A student who writes "I filed an affidavit to start the suit" has confused the two.

"Complaint" in ordinary speech is not "complaint" in law. Telling a police constable you have been cheated is not a complaint within section 2(1)(h), however much it feels like one.

Limits and criticism

The requirement in section 223 of hearing the accused before cognizance is new, and its practical effect is contested: it protects a person from being dragged to court on a frivolous private complaint, and it also delays the taking of cognizance and gives an accused notice at a very early stage.

Order VII rule 11 is a blunt instrument. Rejection for non-disclosure of a cause of action is decided on the plaint alone, which is meant to be a filter and is sometimes used to try the case at the threshold.

Proof by affidavit saves time and weakens testing. The proviso to Order XIX rule 1 is the safeguard, and it works only if the other side asks.

Quick revision

Suit: a civil proceeding of a civil nature, CPC s.9. Instituted by presenting a plaint, s.26(1) and Order IV. Stages: plaint, summons, written statement, issues, evidence, arguments, judgment, decree, execution or appeal.

Plaint: the first pleading in a civil suit. Contents, Order VII r.1, nine particulars including the facts constituting the cause of action and when it arose, the facts showing jurisdiction, and the relief claimed. Verified under Order VI r.15. Rejected under Order VII r.11 on six grounds, including no cause of action and barred by any law.

Complaint: BNSS 2023, s.2(1)(h). Any allegation, oral or written, to a Magistrate, with a view to his taking action, that some person known or unknown has committed an offence, but not a police report. Explanation: a police report on a non-cognizable offence is deemed a complaint. Cognizance under s.210; examination of the complainant on oath under s.223(1), and no cognizance without hearing the accused.

Affidavit: a written statement of facts sworn or affirmed. General Clauses Act 1897, s.3(3) includes affirmation and declaration. CPC Order XIX rr.1 and 2; the proviso to r.1 protects the right to cross-examine. CPC s.26(2): facts in a plaint to be proved by affidavit.

Test yourself

1. Distinguish a plaint from a complaint.

A plaint is the written first pleading of a plaintiff, presented to a civil court under section 26 and Order IV of the Code of Civil Procedure 1908, containing the particulars in Order VII rule 1, which institutes a civil suit and asks for a civil remedy. A complaint, under section 2(1)(h) of the Bharatiya Nagarik Suraksha Sanhita 2023, is any allegation made orally or in writing to a Magistrate, with a view to his taking action, that some person known or unknown has committed an offence; it excludes a police report, needs no prescribed form, and seeks the punishment of the offender by the State.

2. List the particulars a plaint must contain.

Under Order VII rule 1: the name of the court; the name, description and residence of the plaintiff; the same for the defendant so far as ascertainable; a statement where either is a minor or of unsound mind; the facts constituting the cause of action and when it arose; the facts showing that the court has jurisdiction; the relief claimed; the amount allowed by way of set-off or relinquished; and a statement of the value of the subject matter for jurisdiction and court fees.

3. On what grounds shall a plaint be rejected?

Under Order VII rule 11: where it does not disclose a cause of action; where the relief is undervalued and the plaintiff does not correct the valuation in the time fixed; where the relief is properly valued but the paper is insufficiently stamped and the stamp paper is not supplied in the time fixed; where the suit appears from the statement in the plaint to be barred by any law; where it is not filed in duplicate; and where the plaintiff fails to comply with rule 9. The word used is "shall", so rejection is mandatory once a ground is established.

4. Can a complaint be made orally, and can it be made against an unknown person?

Yes to both. Section 2(1)(h) says "any allegation made orally or in writing", so no document is required, and it says "that some person, whether known or unknown, has committed an offence", so the accused need not be identified. What the definition does require is that the allegation be made to a Magistrate, that it be made with a view to his taking action under the Sanhita, and that what is alleged amounts to an offence.

5. What is an affidavit, and when may a court refuse to allow a fact to be proved by one?

An affidavit is a written statement of facts made by a deponent and sworn or affirmed before an authorised officer; section 3(3) of the General Clauses Act 1897 provides that the word includes affirmation and declaration by persons allowed by law to affirm or declare instead of swearing. Under the proviso to Order XIX rule 1 of the Code of Civil Procedure 1908, the court shall not order evidence to be given by affidavit where it appears that either party bona fide desires the production of the witness for cross-examination and that witness can be produced.

6. A police officer investigates and reports that a non-cognizable offence has been committed. Is that report a complaint?

Yes, by deeming. Section 2(1)(h) excludes a police report from the definition of a complaint, but the Explanation provides that a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and that the officer making it shall be deemed to be the complainant. The deeming is necessary because a non-cognizable case cannot proceed on a police report in the ordinary way.

Section 2(14): "order" means the formal expression of any decision of a civil court which is not a decree.

The relation between the three

The judgment carries the reasons. The decree carries the result. An order is defined by what it is not.

That single line answers most questions on this group. A judgment explains why; a decree is the formal document drawn up afterwards recording what follows; and anything a civil court formally decides is either a decree or, if it is not a decree, an order.

What a judgment must contain

Order XX rule 4(2) requires a judgment of a court other than a Court of Small Causes to contain a concise statement of the case, the points for determination, the decision on those points, and the reasons for the decision. Rule 5 requires the court to state its finding or decision, with the reasons, on each separate issue.

The last requirement is the one worth remembering: reasons on each issue. A judgment that decides the suit without dealing with an issue that was framed is defective, and that is a ground of appeal.

Appeal

What it is

An appeal is the removal of a case from an inferior to a superior court for the purpose of testing the soundness of the decision. It is a continuation of the suit, not a new proceeding, and it is a creature of statute: there is no inherent right of appeal, so an appeal lies only where some law gives it.

First appeal

Section 96(1): save where otherwise expressly provided in the Code or by any other law, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from its decisions.

Three limits sit in the rest of the section. Section 96(2): an appeal may lie from an original decree passed ex parte. Section 96(3): no appeal shall lie from a decree passed with the consent of parties. Section 96(4): no appeal shall lie, except on a question of law, from a decree in a suit of the nature cognisable by Courts of Small Causes where the value of the subject matter does not exceed ten thousand rupees.

A first appeal is on both facts and law. The appellate court can reappraise the evidence and reach a different conclusion on the facts. Order XLI is the procedure.

Second appeal

Section 100(1): save as otherwise expressly provided in the Code or any other law, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

Two consequences follow, and both are examinable. A second appeal is not available on facts, so concurrent findings of fact by the trial court and the first appellate court are ordinarily final. And the High Court must formulate the substantial question of law, and the appeal is heard on the question so formulated.

Appeals higher up

Appeals from orders lie under section 104 and Order XLIII, and only from the orders those provisions list. Appeals to the Supreme Court lie under articles 132, 133 and 134 of the Constitution with a certificate from the High Court, and under article 136 the Supreme Court may in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order of any court or tribunal, which is a discretionary power and not a right of appeal at all.

Review

What it is

A review is an application to the same court, by a person aggrieved, asking it to reconsider its own decree or order.

Section 114: subject as aforesaid, any person considering himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred, or by a decree or order from which no appeal is allowed, or by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

The grounds

Section 114 gives the right; Order XLVII rule 1 gives the grounds. A person within one of the three categories above may apply for review where one of these is satisfied:

One, discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made. Note the two conditions: the material must be new AND important, and due diligence must have been exercised. A party who simply forgot to lead the evidence fails.

Two, some mistake or error apparent on the face of the record. This means an error that is self-evident and does not need a long argument to establish. A wrong section number, an arithmetical slip, a decision given in ignorance of a binding provision. It does not mean an error that has to be demonstrated by reasoning, because that is what an appeal is for.

Three, any other sufficient reason, which the courts read as a reason analogous to the first two rather than as an open door.

Revision

What it is

A revision is the High Court's supervisory check on whether a subordinate court kept within its jurisdiction.

Section 115(1): the High Court may call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies to it, and if the subordinate court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.

A proviso, inserted in 1999, restricts it further: the High Court shall not vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or proceeding. Section 115(2) bars revision where an appeal lies to the High Court or to a court subordinate to it, and section 115(3) provides that a revision does not operate as a stay unless the High Court so orders.

The three grounds are all about jurisdiction

This is the whole point of revision and it is where answers go wrong. The High Court in revision is not asking whether the decision was right. It is asking whether the subordinate court had the authority to decide, whether it refused to use authority it had, or whether it used its authority illegally or with material irregularity.

A subordinate court that has jurisdiction and reaches a conclusion the High Court thinks wrong has not committed a jurisdictional error. That is a matter for appeal, where one lies, and if none lies the decision ordinarily stands.

Alongside section 115 sits article 227 of the Constitution, which gives every High Court superintendence over all courts and tribunals throughout the territories over which it exercises jurisdiction. It is wider than section 115 and is exercised sparingly.

Reference

What it is

A reference is the subordinate court's own act. It does not involve a party going upstairs; the court itself sends a question to the High Court because it is unsure of the answer.

Section 113: subject to such conditions and limitations as may be prescribed, any court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit.

The proviso is the important half. Where a court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation, or of any provision in one, the determination of which is necessary for the disposal of the case, and is of opinion that the provision is invalid or inoperative but it has not been so declared by the High Court to which that court is subordinate or by the Supreme Court, the court shall state a case setting out its opinion and the reasons, and refer it for the opinion of the High Court.

That is a rule of judicial discipline. A subordinate court may not simply declare a statute invalid; it must refer the question up.

Order XLVI sets out the procedure: the court states the facts, the point on which doubt is entertained and its own opinion on the point, and may either stay the proceedings or proceed and postpone the decree or order.

A worked example

The court of a Civil Judge, Junior Division, at Kalyan decides a suit for possession in favour of Manoj against Farida.

Farida thinks the judge misread the evidence. That is a challenge on the facts. Her remedy is a first appeal under section 96 to the District Court, which can look at the evidence afresh.

The District Court dismisses her appeal and she still says both courts were wrong on the facts. She has no further remedy on the facts: section 100 allows a second appeal to the High Court only if the case involves a substantial question of law.

Instead, after the trial court's decree, Farida finds the registered sale deed of 1998 in her late father's papers. It was not within her knowledge, she could not have produced it despite due diligence, and it is important. Her remedy is a review to the very court that passed the decree, under section 114 read with Order XLVII rule 1, first ground.

Suppose instead the trial court had passed an order on an interlocutory application, no appeal lay from it, and the court had decided a matter that lay outside its pecuniary jurisdiction altogether. That is not "wrong", it is jurisdictional. The remedy is a revision to the High Court under section 115(1)(a), and, because of the 1999 proviso, only if an order the other way would have finally disposed of the suit.

Now suppose that during the trial Farida had argued that the State Act under which Manoj claimed was itself invalid, and the judge agreed but found no ruling of the High Court or the Supreme Court saying so. The judge cannot declare the Act invalid. Under the proviso to section 113 he must state a case and make a reference to the High Court for its opinion.

Four different faults, four different remedies. That is the map.

Distinctions table

What these words do NOT mean

A judgment is not a decree. The judgment gives reasons; the decree follows from it and is drawn up separately. Limitation for an appeal runs by reference to the decree.

A review is not an appeal to the same court. The grounds are narrow. A party who simply disagrees with the reasoning has no ground of review, and saying "the court was wrong" is not "an error apparent on the face of the record".

A revision is not a second appeal. The High Court in revision does not ask whether the decision was correct; it asks whether the court kept within its jurisdiction.

A reference is not a remedy of a party. No litigant "files a reference". The court states the case.

An appeal is not available as of right against everything. It is a creature of statute: no provision, no appeal. That is why section 104 and Order XLIII list the orders that are appealable, and everything not listed is not.

Limits and criticism

The 1999 proviso to section 115 narrowed revision sharply. It was intended to stop interlocutory orders being carried to the High Court and delaying trials; the criticism is that a party facing a plainly jurisdictional error in an interlocutory order may now be left with only article 227, which is discretionary.

"Error apparent on the face of the record" resists definition, and courts have said that no exhaustive definition is possible. The working test is whether the error can be seen without an elaborate argument.

Second appeals are frequently entertained on questions dressed up as questions of law. Section 100 requires a substantial question of law and requires it to be formulated, and the requirement is not always observed.

Quick revision

Judgment: CPC s.2(9), the statement by the Judge of the grounds of a decree or order. Decree, s.2(2). Order, s.2(14), anything formally decided that is not a decree. Order XX rr.4 and 5: concise statement of the case, points for determination, the decision, and reasons on each issue.

Appeal: a creature of statute, a continuation of the suit. First appeal, s.96, on facts and law; no appeal from a consent decree, s.96(3). Second appeal, s.100, only on a substantial question of law, which must be formulated. Appeals from orders, s.104 and Order XLIII. Special leave, article 136.

Review: s.114 and Order XLVII r.1. Same court. Grounds: new and important evidence not available despite due diligence; error apparent on the face of the record; any other sufficient reason.

Revision: s.115. High Court, where no appeal lies to it. Three jurisdictional grounds: jurisdiction not vested, jurisdiction not exercised, jurisdiction exercised illegally or with material irregularity. 1999 proviso: only where the order the other way would have finally disposed of the suit. Article 227 sits alongside.

Reference: s.113 and Order XLVI. The court refers, not a party. Mandatory under the proviso where the court thinks an Act invalid and no High Court or Supreme Court ruling says so.

Test yourself

1. Define judgment, decree and order, and state the relation between them.

Section 2(9) of the Code of Civil Procedure 1908 defines a judgment as the statement given by the Judge of the grounds of a decree or order. Section 2(2) defines a decree as the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties as to all or any of the matters in controversy in the suit, and it may be preliminary or final. Section 2(14) defines an order as the formal expression of any decision of a civil court which is not a decree. The judgment carries the reasons, the decree carries the result, and an order is the residue: whatever a civil court formally decides is one or the other.

2. Distinguish review from revision.

A review under section 114 and Order XLVII rule 1 is heard by the same court that passed the decree, at the instance of an aggrieved party, on three narrow grounds: new and important evidence that could not be produced despite due diligence, an error apparent on the face of the record, or any other sufficient reason. A revision under section 115 is heard by the High Court over a subordinate court whose decision is not appealable to it, and only on jurisdictional grounds: that the court exercised a jurisdiction not vested in it, failed to exercise one that was, or acted illegally or with material irregularity in the exercise of jurisdiction. Review reconsiders the decision; revision examines the authority to decide.

3. When does a second appeal lie, and what cannot be argued in it?

Under section 100 a second appeal lies to the High Court from every decree passed in appeal by a subordinate court only if the High Court is satisfied that the case involves a substantial question of law, and the High Court must formulate that question. What cannot be argued is the facts: concurrent findings of fact by the trial court and the first appellate court are ordinarily final, and re-appreciation of evidence is not open in a second appeal.

4. What is a reference, and when is a court bound to make one?

A reference under section 113 is the act of the court itself, which states a case and refers a question for the opinion of the High Court, the High Court then making such order as it thinks fit. Under the proviso the court is bound to refer where a case before it involves a question as to the validity of an Act, Ordinance or Regulation or of a provision in one, the determination of which is necessary to dispose of the case, and the court is of opinion that the provision is invalid or inoperative although no such declaration has been made by the High Court to which it is subordinate or by the Supreme Court.

5. Is there a right of appeal against every decision of a civil court?

No. An appeal is a creature of statute and exists only where a law gives it. Section 96 gives an appeal from a decree of a court of original jurisdiction, subject to exceptions such as a consent decree under section 96(3). Against orders, an appeal lies only from those listed in section 104 and Order XLIII; every other order is not appealable, and the party's remedy, if any, is a revision under section 115 or the High Court's power of superintendence under article 227.

6. Give two examples of an "error apparent on the face of the record" and one that is not.

An arithmetical mistake in computing the decretal amount, and a decision reached in ignorance of a statutory provision that plainly governs the case, are errors apparent on the face of the record because they can be seen at once without argument. A finding that the plaintiff's witness was more credible than the defendant's is not, however wrong a party thinks it is, because establishing the error would need a re-examination of the evidence, and that is the office of an appeal rather than of a review.

Article 32(4): the right guaranteed by this article shall not be suspended except as otherwise provided for by the Constitution.

Notice what article 32 is. It is itself a fundamental right, sitting inside Part III, and the remedy is available only for the enforcement of a Part III right. That is its limit and it is examinable.

Article 226

Article 226(1): notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

Article 226(2) extends the power to a High Court within whose territories the cause of action wholly or in part arises, even if the authority is outside them.

"And for any other purpose" is the difference. The High Court's writ jurisdiction is wider than the Supreme Court's under article 32: it covers not merely fundamental rights but legal rights generally. A person whose statutory right has been infringed by a public authority can move the High Court under article 226 and cannot move the Supreme Court under article 32.

The five writs

Habeas corpus, "you may have the body". Issued to a person detaining another, requiring them to produce the detained person before the court and justify the detention. If the detention is unlawful the court orders release. It is the writ that protects personal liberty, and it lies against a private person as well as against the State. It is the writ behind the whole subject matter of [D.K. Basu v. State of West Bengal].

Mandamus, "we command". Issued to a public authority, or to an inferior court or tribunal, commanding it to perform a public duty it has refused or failed to perform. It does not lie to compel a private person to perform a private contract, and it does not lie to compel a discretionary act to be done in a particular way, though it does lie to compel the discretion to be exercised at all.

Prohibition, issued by a superior court to an inferior court or tribunal forbidding it to continue proceedings in excess of its jurisdiction. It is preventive and it operates while the proceeding is still pending.

Certiorari, "to be certified". Issued by a superior court to an inferior court or tribunal to quash an order already made, on the ground of want or excess of jurisdiction, violation of natural justice, or an error of law apparent on the face of the record. It is curative and it operates after the decision.

Quo warranto, "by what authority". Issued against a person holding a public office, requiring them to show by what authority they hold it. If the answer is that they were never validly appointed, the court ousts them. The office must be a public office of a substantive character created by statute or by the Constitution.

Prohibition and certiorari go together and the difference is one line: prohibition stops a proceeding before the order, certiorari quashes it after.

Stay order

What it is

A stay order is an order suspending, for the time being, a proceeding or the operation of a decision.

There is no single section headed "stay order", which is exactly why students find it slippery. What exist are several powers scattered through the codes, and a stay is the exercise of one of them.

Where the power comes from

Section 10 of the Code of Civil Procedure 1908 requires a court not to proceed with the trial of a suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. That is a stay of the later suit.

Order XLI rule 5 provides that an appeal shall not of itself operate as a stay of proceedings under the decree appealed from, nor as a stay of execution, but that the appellate court may for sufficient cause order a stay of execution.

The first half of that rule is the part that is asked. Filing an appeal does not by itself stop the decree from being executed. The appellant must apply for and obtain a stay. Students very often assume the opposite.

Section 151, the court's inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court, is the residual source where no specific provision fits.

In writ proceedings, a High Court under article 226 or the Supreme Court under article 32 can and constantly does stay the operation of the order under challenge while the petition is heard.

Injunction

What it is

An injunction is a specific order of a court directing a person to do a particular act, or to refrain from doing one.

Section 36 of the Specific Relief Act 1963: preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.

Temporary and perpetual

Section 37(1): temporary injunctions are such as are to continue until a specified time, or until the further order of the court; they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure 1908.

Section 37(2): a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.

So the difference is when it is granted and how long it lasts. A temporary injunction is interlocutory, granted on an application during the suit, and lasts until a date or until further order. A perpetual injunction is part of the final decree, granted after the case has been decided on the merits, and lasts indefinitely.

Section 38 sets out when a perpetual injunction may be granted: to prevent the breach of an obligation existing in favour of the plaintiff, expressly or by implication; and, where the defendant invades or threatens to invade the plaintiff's right to or enjoyment of property, in the cases the section lists.

Prohibitory and mandatory

A prohibitory injunction tells the defendant not to do something: not to build, not to publish, not to transfer.

A mandatory injunction tells the defendant to do something, usually to undo what has already been done: to pull down the wall. Section 39 governs it, and it is granted more sparingly, because compelling positive action is a heavier interference than restraining it.

The Code's side of it

Order XXXIX rule 1 lists the cases in which a temporary injunction may be granted, where it is proved by affidavit or otherwise that property in dispute is in danger of being wasted, damaged or alienated by a party or wrongfully sold in execution; that the defendant threatens or intends to remove or dispose of his property with a view to defrauding his creditors; or that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to property in dispute.

Order XXXIX rule 2 allows an injunction to restrain a breach of contract or other injury. Rule 2A provides the consequence of disobedience: attachment of property and detention in civil prison.

Beyond the words of the rules, a court granting a temporary injunction applies three settled requirements, and an answer should name all three: a prima facie case, meaning a serious question to be tried; the balance of convenience lying in favour of the applicant; and irreparable injury that could not be compensated in money.

When an injunction cannot be granted

Section 41 of the Specific Relief Act lists the cases in which an injunction cannot be granted. They include restraining a person from prosecuting a pending judicial proceeding, unless to prevent multiplicity of proceedings; restraining a person from instituting or prosecuting a proceeding in a court not subordinate to that from which the injunction is sought; restraining a person from applying to a legislative body; restraining proceedings in a criminal matter; preventing the breach of a contract the performance of which would not be specifically enforced; preventing a continuing breach in which the plaintiff has acquiesced; and where equally efficacious relief can certainly be obtained by any other usual mode of proceeding.

Adjournment

What it is

An adjournment is the postponement of a hearing to a later date.

The civil rule

Order XVII rule 1(1): the court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing. There is a proviso, inserted by the amendment of 1999 and brought into force in 2002: no such adjournment shall be granted more than three times to a party during the hearing of the suit.

Rule 1(2) requires the court, in every such case, to fix a day for the further hearing and to make such orders as to the costs occasioned by the adjournment, or such higher costs as the court deems fit. A proviso requires that once the hearing has commenced it shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds, for exceptional reasons recorded, that an adjournment is necessary.

Two things there are asked directly: sufficient cause, reasons in writing, and a cap of three adjournments per party; and costs, because the point of costs is that delay should be paid for by the party who causes it.

The criminal rule

Section 346(1) of the Bharatiya Nagarik Suraksha Sanhita 2023 states the same principle for a criminal case: in every inquiry or trial the proceedings shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment beyond the following day to be necessary for reasons to be recorded. For the sexual offences it lists, the inquiry or trial must be completed within two months from the date of filing of the chargesheet.

A worked example

A builder starts putting up a compound wall that will block the only access to Rehana's shop in Mumbai. She sues for a declaration and a mandatory injunction.

Before the suit is decided she needs the building stopped. She applies under Order XXXIX rules 1 and 2 for a temporary injunction, supported by an affidavit. The court asks the three questions: is there a prima facie case, that is, a serious question to be tried about her right of access; where does the balance of convenience lie, weighing the builder's loss from stopping against her loss from being walled in; and would damages be an adequate remedy, or is the injury irreparable. If she succeeds the injunction runs until further order under section 37(1).

At the end of the suit, if she wins, the decree can carry a perpetual injunction under section 37(2) restraining the builder permanently, and a mandatory injunction under section 39 requiring the wall already built to be pulled down.

Suppose instead the builder is a municipal corporation acting under a statutory power, and Rehana says the sanction was granted without hearing her. Now she is complaining of a public authority's breach of a legal duty, so the remedy is a writ petition under article 226, in which she may seek certiorari to quash the sanction and mandamus to compel the corporation to decide afresh after hearing her, and she will ask for a stay of the sanction while the petition is pending.

And if the corporation, having lost, appeals, Rehana should note that under Order XLI rule 5 the appeal does not by itself stay the decree in her favour, and the corporation must apply for a stay.

Meanwhile the builder's advocate seeks time on three successive dates. Order XVII rule 1 lets the court grant time only on sufficient cause, for reasons recorded, not more than three times to that party, and with costs.

Distinctions table

What these words do NOT mean

A stay is not an injunction. A stay operates on a proceeding or on the effect of an order; an injunction operates on a person and tells them what to do or not to do. Breach of an injunction is punishable under Order XXXIX rule 2A.

Filing an appeal does not stay the decree. Order XLI rule 5 says so in terms. A stay must be applied for and obtained.

Article 32 is not as wide as article 226. Article 32 is available only to enforce a fundamental right; article 226 is available for that "and for any other purpose".

A writ does not lie against a purely private body in the ordinary case. Whether the respondent is "the State" or a public authority is the threshold question, and it takes you back to [Fact, Person, Offence and State].

An adjournment is not a right. It requires sufficient cause and reasons in writing, it is capped at three per party under the proviso to Order XVII rule 1, and it carries costs.

Limits and criticism

The three-adjournment cap is widely ignored in practice, and that gap between the rule and the reality is the standard criticism of Order XVII rule 1. The provision is mandatory in form; the enforcement is not.

The writ jurisdiction is discretionary. Even where a right has been infringed, a court may decline relief because of delay, because an alternative remedy exists, or because the petitioner has suppressed material facts. A student who writes that a writ "must" issue once a violation is shown has overstated it.

Injunctions are equally discretionary, and section 41 lists a long series of cases in which one cannot be granted at all, so the existence of a right does not guarantee this particular remedy.

Quick revision

Writ: articles 32 and 226. Five writs, all "in the nature of": habeas corpus, produce the detained person; mandamus, command performance of a public duty; prohibition, forbid an inferior court from proceeding; certiorari, quash its order; quo warranto, question the holding of a public office. Article 32 is itself a fundamental right and is confined to Part III. Article 226 adds "and for any other purpose" and so is wider. Article 227 is superintendence, not a writ.

Stay order: no single provision. CPC s.10, Order XLI r.5 (an appeal is not of itself a stay), s.151, and the writ courts' power. Suspends a proceeding or the operation of an order.

Injunction: Specific Relief Act 1963, s.36 discretion, s.37 temporary and perpetual, s.38 when perpetual is granted, s.39 mandatory, s.41 when it cannot be granted. CPC Order XXXIX rr.1, 2 and 2A. Three requirements: prima facie case, balance of convenience, irreparable injury.

Adjournment: CPC Order XVII r.1, sufficient cause, reasons in writing, not more than three times to a party, costs; day-to-day hearing once commenced. BNSS s.346 for criminal trials.

Test yourself

1. Name the five writs and give the function of each in one line.

Habeas corpus, requiring a detained person to be produced and the detention justified, failing which release follows. Mandamus, commanding a public authority or inferior tribunal to perform a public duty it has failed to perform. Prohibition, forbidding an inferior court or tribunal to continue a proceeding in excess of its jurisdiction. Certiorari, quashing an order already made by an inferior court or tribunal for want or excess of jurisdiction, breach of natural justice, or error of law apparent on the record. Quo warranto, requiring a person holding a public office to show by what authority he holds it.

2. How does article 226 differ from article 32?

Article 32 is itself a fundamental right and is confined to the enforcement of the rights in Part III, and it is exercisable by the Supreme Court. Article 226 is exercisable by every High Court within its territories, and it extends to the enforcement of Part III rights "and for any other purpose", so it covers ordinary legal and statutory rights as well. Article 226(2) further allows a High Court to act where the cause of action arises wholly or in part within its territories even though the authority is outside them.

3. Distinguish prohibition from certiorari.

Both are issued by a superior court to an inferior court or tribunal, and the difference is one of timing and effect. Prohibition is preventive: it is issued while the proceeding is still pending and forbids the inferior body from continuing beyond its jurisdiction. Certiorari is curative: it is issued after an order has been made and quashes it, on the ground of want or excess of jurisdiction, violation of natural justice, or an error of law apparent on the face of the record.

4. Distinguish a temporary from a perpetual injunction.

Under section 37(1) of the Specific Relief Act 1963, a temporary injunction continues until a specified time or until the further order of the court, may be granted at any stage of a suit, and is regulated by the Code of Civil Procedure 1908, in particular Order XXXIX. Under section 37(2), a perpetual injunction can be granted only by the decree made at the hearing and upon the merits of the suit, and it perpetually restrains the defendant from asserting a right or committing an act contrary to the plaintiff's rights.

5. Does filing an appeal automatically stay execution of the decree?

No. Order XLI rule 5 of the Code of Civil Procedure 1908 provides that an appeal shall not of itself operate as a stay of proceedings under the decree appealed from, nor as a stay of execution; the appellate court may order a stay for sufficient cause, on an application. Until such an order is made the decree-holder may proceed to execute.

6. What must a plaintiff show to obtain a temporary injunction, and what does the court also consider?

Beyond bringing the case within Order XXXIX rules 1 or 2, the plaintiff must show a prima facie case, that is, a serious question to be tried, not a case certain to succeed; that the balance of convenience lies in favour of granting the injunction, weighing the harm to each side; and that refusal would cause irreparable injury, meaning injury that could not adequately be compensated in money. The court also remembers that under section 36 of the Specific Relief Act 1963 preventive relief is granted at its discretion, and that section 41 lists cases in which an injunction cannot be granted at all.

For a suit on a loan: that money was lent, on what terms, that repayment fell due, and that it was not repaid. Those four facts are the cause of action. The plaintiff's motive for lending, the borrower's reputation, and the fact that the plaintiff has a copy of the cheque, are not.

The three things it decides

Whether the plaint survives at all. No cause of action, and Order VII rule 11(a) requires rejection. The court looks at the plaint alone, taking its statements as true.

Where the suit can be filed. Section 20(c) makes the place where the cause of action arose, wholly or in part, a court of competent jurisdiction. This is dealt with in [International Law, Arbitration, Jurisdiction and Amicus Curiae].

When limitation starts to run. That is why Order VII rule 1(e) requires the plaint to say when the cause of action arose, and not merely what it was.

One suit, one cause of action

Order II rule 2(1): every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Rule 2(2): if the plaintiff omits to sue for, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue for the portion so omitted or relinquished. Rule 2(3): a person entitled to more than one relief in respect of the same cause of action may sue for all or any of them, but if he omits to sue for a relief without the leave of the court, he shall not afterwards sue for it.

The rule exists to stop a defendant being harassed by a series of suits on one grievance. A plaintiff who has lent money and also been assaulted has two causes of action and may bring two suits; a plaintiff who has lent money and sues only for the principal, forgetting the interest, has split one cause of action and will be shut out.

Issue

What it is

An issue is a disputed point of fact or of law which the court formally frames, and on which the parties then lead evidence and argue.

Order XIV rule 1(1): issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. Rule 1(2): material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue, or a defendant must allege in order to constitute his defence. Rule 1(3): each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

How issues are framed

Rule 3 tells the court where to look: the allegations made on oath by the parties or by persons present on their behalf, the allegations in the pleadings, and the contents of documents produced by either party. Rule 2 requires the court, where issues of both law and fact arise in the same suit, ordinarily to pronounce judgment on all issues.

Why they matter so much

Because from the day issues are framed, the case has a shape. Evidence is led on the issues and on nothing else. A finding must be given on each issue, which Order XX rule 5 requires. And an appeal is argued issue by issue.

Three kinds are worth naming. Issues of fact, which need evidence. Issues of law, which do not, and which can sometimes dispose of the suit by themselves. And a preliminary issue, which under Order XIV rule 2(2) the court may try first where it can dispose of the case and relates to the jurisdiction of the court or to a bar to the suit created by any law.

Charge

What it is

A charge is the precise written accusation informing the accused of exactly what he is alleged to have done, so that he can prepare his defence.

Section 2(1)(f) of the Sanhita is a partial definition: "charge" includes any head of charge when the charge contains more heads than one.

What a charge must state

Section 234(1): every charge shall state the offence with which the accused is charged. Section 234(2): if the law creating the offence gives it a specific name, the offence may be described in the charge by that name only. Section 234(3): if the law gives it no specific name, so much of the definition of the offence must be stated as gives the accused notice of the matter with which he is charged. Section 234 also requires the law and the section to be mentioned, and states that the fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled.

Section 235(1): the charge shall contain such particulars as to the time and place of the alleged offence, and the person, if any, against whom, or the thing, if any, in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.

Where those particulars do not give sufficient notice, section 236 requires the charge to state the manner in which the alleged offence was committed.

Who frames it, and when

In a sessions trial, section 251(1): if after considering the record and hearing both sides the Judge is of opinion that there is ground for presuming that the accused has committed an offence, he frames a charge. If he thinks there is no sufficient ground he discharges the accused instead, which is [Ex Parte, Discharge, Acquittal and Conviction].

In a warrant case tried by a Magistrate, the charge is framed under section 263 if the Magistrate is of opinion that there is ground for presuming.

In a summons case there is no formal charge at all: section 274 provides that when the accused appears, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence.

Alteration, and errors

Section 239 allows any court to alter or add to any charge at any time before judgment is pronounced, and requires the altered or added charge to be read and explained to the accused.

The governing idea behind all of this is notice. An error in the charge does not by itself vitiate a conviction unless the accused was in fact misled and a failure of justice has been occasioned.

Bail

The definitions

The Sanhita defines the whole family of terms, which the old Code did not.

Section 2(1)(b): "bail" means release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or court on execution by such person of a bond or a bail bond.

Section 2(1)(d): "bail bond" means an undertaking for release with surety.

Section 2(1)(e): "bond" means a personal bond or an undertaking for release without surety.

Section 2(1)(c): "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence.

That last definition is the one everything turns on, and it is worth reading twice. Non-bailable is defined as the residue: everything not shown as bailable. It does not mean bail cannot be granted.

Bailable offences

Section 478(1): when any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared to give bail, that person shall be released on bail.

The word is "shall". In a bailable offence bail is a right, and the officer or the court has no discretion to refuse it, though conditions as to the bond may be imposed.

Non-bailable offences

Section 480(1): when a person accused of or suspected of a non-bailable offence is arrested or detained without warrant, or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, subject to the restrictions the section then sets out, which include that a person shall not be released if there appear reasonable grounds for believing he has been guilty of an offence punishable with death or imprisonment for life.

So in a non-bailable offence bail is a matter of judicial discretion. Section 483 gives the High Court and the Court of Session a wider special power to direct release on bail.

Anticipatory bail

Section 482(1): when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section, and that court may, if it thinks fit, direct that in the event of arrest he shall be released on bail.

Note the two limits in that sentence. It is available only for a non-bailable offence, since there is no need for it otherwise, and only from the High Court or the Court of Session.

The undertrial provision

Section 479(1) is new in its present form and it matters. Where a person has, during investigation, inquiry or trial, undergone detention for up to one half of the maximum period of imprisonment specified for that offence, other than an offence for which death or imprisonment for life is one of the punishments, he shall be released by the court on bond. There is a proviso reducing the period to one third for a first-time offender who has never been convicted.

A worked example

Two proceedings again, and the same four words in each.

Civil. Arjun lent Bhavna four lakh rupees on 1 March 2023, repayable in one year, and she has not repaid. His cause of action is: the loan, the terms, the due date of 1 March 2024, and the failure to repay. His plaint must state those facts and the date, under Order VII rule 1(e). He must include the whole claim, principal and interest, in the one suit, or Order II rule 2 will shut him out of a second. He may sue where Bhavna resides under section 20(a) or where the cause of action arose in whole or in part under section 20(c). Bhavna's written statement admits the loan and says she repaid in cash. The court then frames the issues under Order XIV rule 1: whether the plaintiff proves the loan; whether the defendant proves repayment; what relief. Evidence is led on those three and nothing else, and Order XX rule 5 requires a finding on each.

Criminal. Bhavna alleges that when Arjun came to demand the money he assaulted her. Arjun is arrested. Whether he must be released depends on the classification of the offence: if it is shown as bailable in the First Schedule, section 478 makes his release on bail a right once he is prepared to give bail. If it is non-bailable, section 480 makes it discretionary. If Arjun fears arrest before it happens, section 482 allows him to apply to the Court of Session or the High Court for anticipatory bail, but only because the offence is non-bailable. When the case reaches the stage of trial, the court frames a charge under section 251 or section 263, stating the offence, and under section 235 giving the time, the place and the person against whom it was committed, so that Arjun knows precisely what he has to meet.

Distinctions table

What these words do NOT mean

A cause of action is not the section you sue under. It is the facts. Naming the wrong section is curable; pleading no facts is not.

"No cause of action" does not mean "a weak case". Order VII rule 11(a) is decided on the plaint alone, assuming its statements to be true.

An issue is not a question the parties argue about generally. It arises only where a material proposition is affirmed by one and denied by the other. An admitted fact generates no issue.

A charge is not a conviction, and it is not an opinion that the accused is guilty. Section 251 speaks of "ground for presuming", which is a far lower threshold than proof.

Non-bailable does not mean bail cannot be granted. It means bail is not a right and is left to the court's discretion under section 480, and to the wider powers in section 483.

Bail is not an acquittal. It is release from custody on conditions while the case continues.

Limits and criticism

Order II rule 2 is severe. A plaintiff who innocently omits part of a claim loses it forever, and the rule is defended on the ground that a defendant should face one suit and not five.

The framing of issues is often mechanical, with issues copied from the pleadings without thought, and that produces trials in which evidence is led on things nobody disputes.

Section 479 is a real reform on paper. Whether an undertrial who has served half the maximum sentence is actually released depends on somebody in the prison system counting the days and moving the court, and that is where the provision has historically failed.

Quick revision

Cause of action: the bundle of facts the plaintiff must prove. Not defined in the Code. Order VII r.1(e), state the facts and when they arose; Order VII r.11(a), plaint rejected if none disclosed; s.20(c), place of suing. Order II r.2, include the whole claim or lose the rest.

Issue: Order XIV r.1. Arises where a material proposition of fact or law is affirmed by one party and denied by the other. Framed from pleadings, documents and examination. Order XIV r.2(2), preliminary issue on jurisdiction or a statutory bar. Order XX r.5, a finding on each issue.

Charge: BNSS ss.234 to 239. States the offence, the law and section, the time, place, person or thing, and, where needed, the manner. Framed on "ground for presuming", s.251 in a sessions trial and s.263 in a warrant case; no charge in a summons case, s.274. Alterable at any time before judgment, s.239.

Bail: BNSS s.2(1)(b) release on conditions on a bond or bail bond; s.2(1)(d) bail bond, with surety; s.2(1)(e) bond, without surety; s.2(1)(c) bailable offence is one shown as bailable in the First Schedule, non-bailable is the residue. s.478, bail as of right in a bailable offence. s.480, discretion in a non-bailable one. s.482, anticipatory bail from the High Court or Court of Session. s.479, release of an undertrial who has served half the maximum period.

Test yourself

1. What is a cause of action, and what three questions does it decide?

It is the bundle of essential facts a plaintiff must prove to obtain the relief claimed, not the provision relied on and not the evidence. It decides whether the plaint survives, because Order VII rule 11(a) requires rejection where none is disclosed; where the suit may be filed, because section 20(c) confers jurisdiction on the court within whose limits the cause of action arose wholly or in part; and when limitation began to run, which is why Order VII rule 1(e) requires the plaint to state when it arose.

2. When does an issue arise, and why does it matter that it is framed?

Under Order XIV rule 1(1) an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other, a material proposition being one the plaintiff must allege to show a right to sue or the defendant must allege to constitute his defence. It matters because evidence is led on the issues and on nothing else, because Order XX rule 5 requires the court to give a finding with reasons on each issue, and because an appeal proceeds issue by issue.

3. What must a charge contain?

Under section 234 it must state the offence; if the law gives the offence a specific name the charge may use that name alone, and if not, so much of the definition as gives the accused notice; and it must mention the law and section. Under section 235 it must give such particulars as to the time and place of the offence and the person or thing concerned as are reasonably sufficient to give the accused notice. Under section 236, where those particulars do not give sufficient notice, it must state the manner in which the offence was committed. The whole purpose is notice, so that the accused can prepare a defence.

4. Distinguish a bailable from a non-bailable offence, and state the practical consequence.

Section 2(1)(c) of the Bharatiya Nagarik Suraksha Sanhita 2023 defines a bailable offence as one shown as bailable in the First Schedule or made bailable by any other law in force, and a non-bailable offence as any other offence, so the second class is defined as the residue. The consequence is that in a bailable offence section 478 makes release on bail a right once the person is prepared to give bail, while in a non-bailable offence section 480 makes it a matter for the discretion of the court, with wider powers in the High Court and the Court of Session under section 483.

5. What is anticipatory bail and who may grant it?

Under section 482, a person who has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence may apply to the High Court or the Court of Session for a direction that in the event of arrest he shall be released on bail. It is available only in respect of a non-bailable offence, because in a bailable one release is already a right, and it may be granted only by those two courts and not by a Magistrate.

6. A plaintiff lends money and sues only for the principal, forgetting to claim interest. Can he sue later for the interest?

No. Order II rule 2 requires every suit to include the whole of the claim the plaintiff is entitled to make in respect of the cause of action, and provides that a plaintiff who omits to sue for or relinquishes any portion of his claim shall not afterwards sue for the portion omitted. Interest on the loan arises from the same cause of action as the principal, so the omission bars the later claim unless the court's leave was obtained under rule 2(3).

An ex parte decree is not a decree obtained by default alone

The plaintiff still has to prove his case. The court hears his evidence and decides on it. What is missing is the defence, not the proof.

Getting back in

Three routes, and a student should know all three.

Order IX rule 7, before the ex parte decree. Where the court has adjourned the hearing ex parte and the defendant appears at or before that hearing and assigns good cause for his previous non-appearance, he may, on such terms as to costs as the court directs, be heard in answer to the suit as if he had appeared on the day fixed.

Order IX rule 13, after the ex parte decree. The defendant may apply to the court that passed it to set it aside, and if he satisfies the court that the summons was not duly served, or that he was prevented by sufficient cause from appearing, the court shall set aside the decree on such terms as to costs or payment into court as it thinks fit and appoint a day for proceeding with the suit.

Section 96(2), an appeal. An appeal may lie from an original decree passed ex parte. So the defendant may either apply to set aside or appeal, and the choice matters because the grounds are different: rule 13 asks about service and sufficient cause, while an appeal attacks the decision on the merits.

The plaintiff's mirror image

If the defendant appears and the plaintiff does not, Order IX rule 8 requires the suit to be dismissed, unless the defendant admits the claim or part of it. Order IX rule 9(1) then bars a fresh suit on the same cause of action, though the plaintiff may apply to set the dismissal aside on showing sufficient cause. Rule 9(2) requires notice of that application to the opposite party.

Ex parte in the criminal law

The phrase is used less often, but the idea appears. Section 356 of the Sanhita provides for an inquiry, trial or judgment in the absence of a proclaimed offender who has absconded and where there is no immediate prospect of arresting him. That is new, and it is a considerable change: under the earlier Code a trial in absentia in that form did not exist.

Discharge

What it is

A discharge is an order releasing an accused from the proceedings before the prosecution evidence has been recorded, because the material does not disclose a case fit to be tried.

Where it happens

In a sessions trial, section 250. The accused may prefer an application for discharge within sixty days from the date of supply of copies of the documents under section 230, and if the Judge, on considering the record and hearing both sides, considers that there is not sufficient ground for proceeding against the accused, he shall discharge him and record reasons.

In a warrant case on a police report, section 262. Sub-section (1) allows the accused to apply for discharge within sixty days from the supply of copies. Sub-section (2) requires the Magistrate, on considering the police report and the documents, and after examining the accused if he thinks fit and hearing both sides, to discharge the accused if he considers the charge to be groundless, recording his reasons.

In a warrant case otherwise than on a police report, section 268(1). If, on taking all the evidence referred to in section 267, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, he shall discharge him.

The test

Notice the words: "not sufficient ground for proceeding", "groundless", "no case which, if unrebutted, would warrant conviction".

None of them asks whether the accused is innocent. The question is whether there is enough to put him on trial at all. That is why a discharge is not a verdict.

Acquittal

What it is

An acquittal is the court's finding, after the trial, that the prosecution has not proved the guilt of the accused beyond reasonable doubt.

Section 271(1): if, in a case in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.

The same result follows at the end of a sessions trial under section 258, and in a summons case under section 275 and the sections around it.

What it means

It is a verdict on the merits. The court has heard the evidence and found it insufficient.

It does not mean the court believes the accused is innocent, though it may. It means guilt was not proved to the required standard. That standard, proof beyond reasonable doubt, is what makes an acquittal compatible with a suspicion of guilt.

It bars a second trial. Article 20(2) of the Constitution: no person shall be prosecuted and punished for the same offence more than once. Section 337 of the Sanhita gives the rule its statutory form: a person once convicted or acquitted of an offence by a court of competent jurisdiction shall not, while the conviction or acquittal remains in force, be liable to be tried again for the same offence.

This bar is the doctrine of autrefois acquit and autrefois convict, French for "previously acquitted" and "previously convicted", and in the general law it is called double jeopardy. It also has an echo in the General Clauses Act, section 26 of which deals with an act punishable under two or more enactments and is worked in [The Miscellaneous Provisions of the General Clauses Act].

Conviction

What it is

A conviction is the court's finding that the accused is guilty of the offence charged, on proof beyond reasonable doubt.

Section 271(2): where the Magistrate finds the accused guilty and does not proceed under section 364 or section 401, he shall pass sentence upon him according to law.

Section 275: if the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused, and may in his discretion convict him on it. The word "may" is deliberate: a court is not bound to convict on a plea of guilty, and a careful court will satisfy itself that the plea is understood and unqualified.

Conviction and sentence are two steps

The conviction is the finding of guilt. The sentence is the punishment that follows. Section 355 requires the accused to be heard on the question of sentence in the cases it covers, so that mitigating circumstances can be put before the court. Section 401 allows release on probation or after admonition instead of sentencing.

Keeping the two apart matters because an appeal may be against conviction, or against sentence, or against both.

A worked example

The civil half. Deepak sues Farhan for possession. The summons is served on Farhan personally on 4 January and he does not appear on the date fixed. The court, service being proved, orders the suit to be heard ex parte under Order IX rule 6(1)(a), hears Deepak's evidence and passes a decree. Farhan, who was in hospital, has three routes. If he comes to court on the adjourned ex parte hearing before the decree and shows good cause, Order IX rule 7 lets him in on terms. If the decree has already been passed, Order IX rule 13 lets him apply to set it aside on proof that he was prevented by sufficient cause. And under section 96(2) he may instead appeal against the ex parte decree on the merits.

The criminal half. Farhan is also prosecuted for criminal trespass on the same premises. Three different endings, and each has a different consequence.

If, at the stage of section 262, the Magistrate reads the police report and finds nothing in it that could amount to trespass, he discharges Farhan for reasons recorded. The prosecution is over for now, and if fresh material emerges the matter can be revived, because a discharge is not a verdict.

If the charge is framed, evidence is led, and the Magistrate finds that the prosecution has not proved that Farhan entered with intent to commit an offence, he records an acquittal under section 271(1). Now article 20(2) and section 337 bar a second trial for the same offence while that acquittal stands.

If the Magistrate finds the case proved, he records a conviction, hears Farhan on the question of sentence under section 355, and then passes sentence.

Distinctions table

What these words do NOT mean

Ex parte does not mean unfair or improper. It describes a hearing at which one side was absent, and the Code requires proof of due service before it is allowed.

An ex parte decree is not a decree without proof. The plaintiff must still prove his case; only the defence is missing.

A discharge is not an acquittal. This is the error to avoid. A discharge means there was not enough material to put the accused on trial; an acquittal means the trial was held and the case was not proved.

An acquittal is not a certificate of innocence, though it is often described as one. It is a finding that guilt was not proved beyond reasonable doubt.

A conviction is not a sentence. The conviction is the finding of guilt; the sentence is the punishment, imposed afterwards and, in the cases section 355 covers, only after hearing the accused on it.

Limits and criticism

Order IX rule 13 applications are a standing source of delay. A defendant who has genuinely been misled deserves relief, and the same provision can be used to reopen decrees years later. The safeguard is that the court sets terms as to costs and payment into court.

The discharge stage is criticised from both directions. Some say it is a real filter that spares people a trial they should never have faced; others say Magistrates rarely discharge, so the filter does not work and the sixty-day limits in sections 250 and 262 merely add a step.

Trial in absence of a proclaimed offender under section 356 is new and contested. It answers the problem of the accused who absconds indefinitely, and it sits uncomfortably with the principle that a person should be present at their own trial.

Quick revision

Ex parte: from one side only. Order IX r.6(1)(a), suit heard ex parte where service is proved and the defendant is absent; r.6(1)(b) and (c), second summons or postponement where service is not proved or was late. Remedies: r.7 before decree, r.13 after decree on proof of no service or sufficient cause, or appeal under s.96(2). Plaintiff absent: r.8 dismissal, r.9 bar on a fresh suit with power to set aside.

Discharge: before evidence. BNSS s.250 sessions, s.262 warrant case on police report, s.268 otherwise. Tests: no sufficient ground for proceeding; charge groundless; no case which if unrebutted would warrant conviction. Not a verdict, no bar to fresh proceedings.

Acquittal: after trial. BNSS s.271(1). Guilt not proved beyond reasonable doubt. Barred from re-trial by article 20(2) and BNSS s.337, autrefois acquit.

Conviction: finding of guilt. BNSS s.271(2); s.275 conviction on a plea of guilty, which is discretionary; s.355 hearing on sentence; s.401 probation or admonition. Conviction and sentence are separate steps.

Test yourself

1. When may a suit be heard ex parte, and what must the court do if service is not proved?

Under Order IX rule 6(1)(a) of the Code of Civil Procedure 1908, where the plaintiff appears and the defendant does not when the suit is called on, and it is proved that the summons was duly served, the court may order the suit to be heard ex parte. Where service is not proved, rule 6(1)(b) requires the court to direct a second summons to be issued and served; and where it was served but not in sufficient time to allow the defendant to appear and answer, rule 6(1)(c) requires the hearing to be postponed.

2. Distinguish a discharge from an acquittal.

A discharge is made before the prosecution evidence, at the charge stage, on the test whether there is sufficient ground for proceeding, whether the charge is groundless, or whether any case has been made out which if unrebutted would warrant conviction: sections 250, 262 and 268 of the Bharatiya Nagarik Suraksha Sanhita 2023. An acquittal comes after the trial, under section 271(1), on the finding that guilt has not been proved beyond reasonable doubt. A discharge is not a verdict and does not bar a fresh proceeding if better material emerges; an acquittal is a verdict and bars a second trial under article 20(2) and section 337.

3. What are the remedies of a defendant against whom an ex parte decree has been passed?

He may apply under Order IX rule 13 to the court that passed the decree to set it aside, and the court shall do so if satisfied that the summons was not duly served or that he was prevented by sufficient cause from appearing, on such terms as to costs or payment into court as it thinks fit. Alternatively he may appeal, because section 96(2) provides that an appeal may lie from an original decree passed ex parte. Before the decree is passed, Order IX rule 7 allows him to be heard on assigning good cause for his earlier non-appearance.

4. What does article 20(2) protect against, and what is its statutory counterpart?

Article 20(2) provides that no person shall be prosecuted and punished for the same offence more than once, which is the rule against double jeopardy and is expressed in the pleas of autrefois acquit and autrefois convict. Its statutory counterpart is section 337 of the Bharatiya Nagarik Suraksha Sanhita 2023, under which a person once convicted or acquitted of an offence by a court of competent jurisdiction shall not, while that conviction or acquittal remains in force, be liable to be tried again for the same offence.

5. Must a court convict an accused who pleads guilty?

No. Section 275 of the Sanhita provides that if the accused pleads guilty the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon. The word is permissive, so the court retains a discretion, and it will ordinarily satisfy itself that the plea is unqualified, that the accused understands what he is admitting, and that the facts admitted amount in law to the offence charged.

6. Are conviction and sentence the same thing?

No. The conviction is the court's finding that the accused is guilty; the sentence is the punishment imposed afterwards. Section 271(2) requires the Magistrate who finds the accused guilty to pass sentence according to law unless he proceeds under section 364 or section 401, and section 355 requires the accused to be heard on the question of sentence in the cases it covers. The distinction matters because an appeal may be brought against the conviction, against the sentence, or against both.

An agnate is a person related to the deceased wholly through males; a cognate is a person related otherwise than wholly through males.

Section 9 provides that among the heirs in the Schedule, those in class I take simultaneously and to the exclusion of all others.

Section 10 sets out how the property is divided among class I heirs.

Class I

The class I heirs in the Schedule are: son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son; and, added by the amendment of 2005, son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; and daughter of a pre-deceased daughter of a pre-deceased son.

Two points carry marks. The father is not a class I heir; he is the first entry in class II. And the amendment of 2005 added four female-line heirs to class I, which is part of the wider movement of that amendment towards equality between sons and daughters.

Section 15 sets out the corresponding scheme for a female Hindu dying intestate, and it is different in structure, which is itself a standing subject of criticism.

Legal representative

The definition

Section 2(11) of the Code of Civil Procedure 1908: "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and, where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued.

Three classes, and the second is the surprise

One, a person who in law represents the estate. In the ordinary case this is the heir or the executor or administrator under a will.

Two, any person who intermeddles with the estate. This is the limb students miss. A person who has no right to the property at all, but who takes possession of it, deals with it, collects its rents or disposes of it, becomes a legal representative by that conduct. In older language such a person is an executor de son tort, meaning an executor "of his own wrong". The purpose is protective: a person who has taken the dead man's property should not escape the dead man's liabilities by saying he was never an heir.

Three, where a party sued in a representative character dies, the person on whom the estate devolves.

So a legal representative may be an heir, and need not be. That is the whole distinction and it is asked directly.

Why the Code needs the concept

Because litigation outlives litigants.

Order XXII rule 1: the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

Order XXII rule 3(1): where one of two or more plaintiffs dies and the right to sue does not survive to the survivors alone, or where a sole plaintiff dies and the right to sue survives, the court shall, on an application, cause the legal representative of the deceased to be made a party and shall proceed with the suit. Rule 3(2): where no application is made within the time limited by law, the suit shall abate so far as the deceased plaintiff is concerned.

Order XXII rule 4 is the mirror provision for the death of a defendant, and rule 4(2) allows the person so brought on record to make any defence appropriate to his character as legal representative.

Order XXII rule 9 provides that where a suit abates or is dismissed under the Order, no fresh suit shall be brought on the same cause of action, but the plaintiff may apply for an order to set aside the abatement or dismissal on showing sufficient cause.

Abatement means the suit dies. That is the practical consequence of failing to bring the legal representative on record in time, and it is why the concept matters.

The extent of liability

A legal representative is liable only to the extent of the property of the deceased that has come to their hands and has not been duly disposed of. They do not become personally liable for the deceased's debts out of their own pocket.

Power of attorney

The definition

Section 1A of the Powers-of-Attorney Act 1882: in this Act, "Power-of-Attorney" includes any instrument empowering a specified person to act for and in the name of the person executing it.

Two words to know. The person who gives the authority is the donor or principal; the person who receives it is the donee, agent or attorney. Note that "attorney" here does not mean a lawyer.

What it does

Section 2: the donee of a power of attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal where sealing is required, by the authority of the donor; and every such instrument or thing shall be as effectual in law as if it had been executed or done by the donee in the name and with the signature and seal of the donor.

That is the whole point: an act done by the donee within the authority binds the donor as if the donor had done it.

Section 4 allows a power of attorney to be deposited in the High Court, and a certified copy of a deposited instrument to be evidence of its contents.

General and special

A general power of attorney authorises the donee to act for the donor in a class of matters generally, such as the management of all the donor's property.

A special or specific power of attorney authorises a particular act, such as executing one sale deed of one flat, or appearing in one suit.

The distinction matters because the donee's authority is limited to what the instrument gives. An act outside the authority does not bind the donor.

In litigation

Order III rule 1 of the Code of Civil Procedure 1908: any appearance, application or act in or to any court required or authorised by law to be made or done by a party may, except where otherwise expressly provided, be made or done by the party in person, or by his recognised agent, or by a pleader on his behalf, with a proviso that the court may direct any appearance to be made by the party in person.

Order III rule 2(a): the recognised agents of parties include persons holding powers of attorney authorising them to make and do such appearances, applications and acts on behalf of the parties.

So a holder of a power of attorney may conduct a case for the party. There is a limit that is constantly missed: an attorney can do the acts of the party, but cannot give evidence about facts that were within the personal knowledge of the principal alone, because the attorney did not witness them.

Ending it

A power of attorney comes to an end on revocation by the donor, on renunciation by the donee, on the death or insolvency or insanity of either, on the completion of the business for which it was given, or on the expiry of any period fixed in it. A power coupled with an interest, meaning one given to secure an interest of the donee, is not revocable in the same way, so long as that interest subsists.

A note that saves students marks in a later subject: a "power of attorney sale", in which property is transferred by a general power of attorney with an agreement to sell and a will instead of a registered sale deed, does not convey title. Title in immovable property passes by a registered instrument of transfer, not by a power of attorney.

A worked example

Ramesh sues Suresh in 2024 for recovery of a plot in Nashik. Three things then happen.

Ramesh falls ill and cannot attend. He executes a special power of attorney in favour of his brother Girish, authorising him to appear, to instruct counsel and to sign applications in that suit. Under Order III rules 1 and 2(a), Girish is a recognised agent and may do those acts. He cannot, however, step into the witness box and depose to the negotiations of 2019 at which only Ramesh was present.

Suresh dies in 2025. Under Order XXII rule 1 the suit does not abate, because the right to sue for possession survives. Under Order XXII rule 4 Ramesh must apply to bring Suresh's legal representatives on record. Suresh left a widow and two daughters, who are his legal heirs under class I of the Schedule to the Hindu Succession Act 1956 read with sections 8 and 9. Suresh's nephew, who is not an heir at all, has moved into the plot and is collecting rent from a tenant. He too is a legal representative under section 2(11), because he has intermeddled with the estate, and he can be brought on record and made answerable to the extent of what has come to his hands.

Ramesh does not apply in time. Under Order XXII rule 3(2) and rule 4(3) the suit abates as against the deceased, and under rule 9 no fresh suit lies on the same cause of action, though Ramesh may apply to have the abatement set aside on showing sufficient cause.

Three concepts, one file, and each of them decides something concrete.

Distinctions table

What these words do NOT mean

A legal heir is not automatically the legal representative, and a legal representative is not necessarily an heir. Section 2(11) is wider on purpose.

"Intermeddler" is not an insult in the Code; it is a defined category, and it exists to protect creditors of the estate.

A power of attorney does not transfer ownership. It confers authority to act. A "power of attorney sale" of immovable property does not pass title.

An attorney under a power of attorney is not necessarily a lawyer, and holding the power does not entitle a person to plead as an advocate.

Abatement is not dismissal for default. A suit abates because a party died and nobody was substituted in time, and Order XXII rule 9 then bars a fresh suit on the same cause of action.

Limits and criticism

The intermeddler limb is easy to state and hard to prove. Establishing that a person dealt with the estate as their own often needs the very evidence the estate no longer has.

Section 15 of the Hindu Succession Act 1956, which governs succession to a female Hindu, is structured differently from section 8, and the difference has been criticised for decades as unequal treatment. The 2005 amendment addressed coparcenary rights and did not rewrite section 15.

Powers of attorney are widely misused in property dealings, and the practice of transferring immovable property by a general power of attorney with an agreement to sell has caused a great deal of litigation, precisely because a power of attorney is not a conveyance.

Quick revision

Legal heir: entitled by the applicable law of succession. Hindu Succession Act 1956, s.8: class I, then class II, then agnates, then cognates. Section 9: class I heirs take simultaneously and to the exclusion of others. Father is class II, not class I. The 2005 amendment added four female-line heirs to class I. Section 15 for a female intestate.

Legal representative: CPC s.2(11). Three limbs: a person who in law represents the estate; an intermeddler; and, where a party sued in a representative character dies, the person on whom the estate devolves. Order XXII r.1, no abatement if the right to sue survives; rr.3 and 4, substitution; r.9, no fresh suit after abatement, subject to an application to set it aside. Liability limited to the estate that has come to his hands.

Power of attorney: Powers-of-Attorney Act 1882, s.1A, any instrument empowering a specified person to act for and in the name of the executant; s.2, acts done by the donee are as effectual as if done by the donor. Donor and donee. General and special. CPC Order III rr.1 and 2(a): a holder of a power of attorney is a recognised agent. Ends on revocation, renunciation, death, insolvency, insanity, completion or expiry; a power coupled with an interest is not freely revocable. It is not a conveyance.

Test yourself

1. Distinguish a legal heir from a legal representative.

A legal heir is a person entitled under the applicable law of succession to inherit the property of the deceased, for a Hindu male dying intestate the class I and class II heirs, agnates and cognates under section 8 of the Hindu Succession Act 1956. A legal representative under section 2(11) of the Code of Civil Procedure 1908 is a person who in law represents the estate of the deceased, and expressly includes any person who intermeddles with the estate, and the person on whom the estate devolves where a party sued in a representative character dies. An heir is usually a legal representative; a legal representative may be a stranger to the family who has merely intermeddled.

2. Who are the class I heirs of a Hindu male dying intestate, and where does the father stand?

Class I of the Schedule to the Hindu Succession Act 1956 comprises the son, daughter, widow and mother, the son and daughter of a pre-deceased son, the son and daughter of a pre-deceased daughter, the widow of a pre-deceased son, the son, daughter and widow of a pre-deceased son of a pre-deceased son, together with four female-line heirs added in 2005. The father is not a class I heir at all; he is the first entry in class II, and so takes only if there is no class I heir.

3. What happens to a suit if the sole defendant dies?

Under Order XXII rule 1 the death does not cause the suit to abate if the right to sue survives. Under rule 4(1) the court shall, on an application, cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit, and under rule 4(2) that person may make any defence appropriate to his character as legal representative. If no application is made within the time limited by law the suit abates as against the deceased, and under rule 9 no fresh suit lies on the same cause of action, subject to an application to set aside the abatement for sufficient cause.

4. Define a power of attorney and state the effect of an act done under it.

Section 1A of the Powers-of-Attorney Act 1882 provides that "Power-of-Attorney" includes any instrument empowering a specified person to act for and in the name of the person executing it. Under section 2 the donee may execute or do any instrument or thing in his own name and signature by the authority of the donor, and every such instrument or thing is as effectual in law as if executed or done by the donee in the name, and with the signature and seal, of the donor. The act therefore binds the donor, provided it is within the authority given.

5. May a power of attorney holder conduct a case for the party, and what may he not do?

Yes. Order III rule 1 of the Code of Civil Procedure 1908 allows an appearance, application or act to be made by the party in person, by his recognised agent or by a pleader, and rule 2(a) makes a person holding a power of attorney a recognised agent, subject to the court's power to direct the party to appear personally. What he may not do is depose as a witness to facts within the personal knowledge of the principal alone, because he did not witness them; his evidence on such matters is hearsay.

6. Does a "power of attorney sale" transfer title to immovable property?

No. A power of attorney is an instrument of authority, not an instrument of transfer. Title to immovable property passes by a duly executed and registered conveyance, and an arrangement consisting of a general power of attorney, an agreement to sell and a will does not amount to one. The holder may execute a sale deed on behalf of the donor if the power authorises it, but the power itself conveys nothing.

The Indian position on treaties

India follows what is called the dualist approach. A treaty binds India internationally once it is ratified. It does not by that fact become part of Indian law that an Indian court will enforce; that requires legislation, which is what article 253 exists for.

That is the general rule, and there is an important qualification which this book returns to twice. Where there is no domestic law occupying the field, and the international norm is consistent with the fundamental rights and in harmony with their spirit, the Supreme Court has read the norm into the Constitution as an aid to interpretation. That is what happened in Vishaka v. State of Rajasthan, AIR 1997 SC 3011, and it is worked in [Vishaka v. State of Rajasthan] and again in [External Aids to the Interpretation of a Statute].

Arbitration

What it is

Arbitration is a method of resolving a dispute outside the courts, in which the parties agree to submit it to one or more arbitrators whose decision, called an award, is binding on them.

Section 2(1)(a) of the Arbitration and Conciliation Act 1996 is a definition that assumes you already know: "arbitration" means any arbitration whether or not administered by a permanent arbitral institution. What it does tell you is that both institutional arbitration, run by a body with its own rules, and ad hoc arbitration, run by the parties themselves, are covered.

It rests on agreement

Section 7(1): "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

Section 7(2): it may be in the form of an arbitration clause in a contract or a separate agreement.

Section 7(3): an arbitration agreement shall be in writing.

Section 7(4) sets out when it is in writing: a document signed by the parties; an exchange of letters, telex, telegrams or other means of telecommunication including electronic means, which provide a record of the agreement; or an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

Two consequences follow, and both are examinable. No agreement, no arbitration: a party cannot be forced into it. And an oral agreement to arbitrate is not enough.

What a court does when there is an arbitration agreement

Section 8(1): a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party or a person claiming through or under him so applies not later than the date of submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.

Notice how narrow the court's role is. The word is "shall", the timing is fixed, and the only question left to the court is whether there prima facie is an agreement at all.

Challenging an award

Section 34 allows an application to set aside an arbitral award, and only on the grounds it lists, which include incapacity of a party, invalidity of the agreement, want of proper notice, the award dealing with a dispute outside the submission, an improperly constituted tribunal, non-arbitrability of the subject matter, and conflict with the public policy of India.

The point to take away is that an award is not appealed against on its merits. A court hearing a section 34 application is not sitting in appeal, and an award that is simply wrong on the facts is not for that reason liable to be set aside.

Arbitration and the other methods

Arbitration is one of several methods grouped as alternative dispute resolution. The others named in section 89 of the Code of Civil Procedure 1908 are conciliation, judicial settlement including settlement through a Lok Adalat, and mediation. Arbitration is the one that most resembles a court: there is a tribunal, evidence and a binding decision. Mediation and conciliation produce a settlement only if the parties agree to it.

Jurisdiction

What it is

Jurisdiction is the authority of a court to hear and determine a particular cause. A decree passed by a court without jurisdiction is a nullity, and its invalidity can be set up even in execution and in collateral proceedings.

The four kinds

Subject matter jurisdiction, which asks whether this class of dispute may be brought before this court at all. Section 9 of the Code of Civil Procedure 1908: the courts shall, subject to the provisions contained in the Code, have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. So a civil court's jurisdiction is presumed, and the burden lies on the person asserting the bar.

Pecuniary jurisdiction, fixed by the statute constituting the court, which sets the value up to which it may try suits. Section 15 adds a rule of grade: every suit shall be instituted in the court of the lowest grade competent to try it.

Territorial jurisdiction, which asks whether the dispute belongs to this place. Section 16 requires suits for the recovery, partition, sale, redemption or determination of rights in immovable property to be instituted where the property is situate. Section 20 covers the rest: subject to the earlier limitations, every suit shall be instituted in a court within the local limits of whose jurisdiction the defendant, or each of the defendants, actually and voluntarily resides, carries on business or personally works for gain; or where any of several defendants does so, subject to the proviso; or where the cause of action wholly or in part arises.

Original and appellate jurisdiction, which asks whether the court is hearing the case for the first time or on appeal.

Objections, and why timing matters

Section 21(1): no objection as to the place of suing shall be allowed by any appellate or revisional court unless it was taken in the court of first instance at the earliest possible opportunity, and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. Section 21(2) says the same for pecuniary limits, and section 21(3) for the limits of a court's jurisdiction as an executing court.

This produces the rule students most often get wrong. A defect of territorial or pecuniary jurisdiction is curable: it must be raised early and it must have caused a failure of justice, or it is waived. A defect of subject matter jurisdiction is not curable, and consent cannot confer it. That distinction is worth writing out in full whenever jurisdiction is asked about.

Amicus curiae

What it is

Amicus curiae is Latin for "friend of the court". An amicus curiae is a person, in India almost always an advocate, who assists the court on a question before it, without representing any party.

Why courts appoint one

Because a party is unrepresented. Where an accused in a serious criminal case has no lawyer, the court appoints one to appear for him, and the appointment is described as amicus curiae although in substance the advocate is defending him. This flows from the right to a fair trial.

Because a view is not being argued. In a public interest matter, both sides may want the same outcome and the opposing view may reach nobody. An amicus is appointed to put it.

Because the court needs help with a subject. In a matter turning on a technical field or on a large body of material, an amicus may be asked to marshal it.

Because the litigation is continuing and needs a steady hand. In long-running matters an amicus is often appointed to coordinate.

Where it appears in this book

An amicus curiae appeared in Indian Young Lawyers Association v. State of Kerala, decided on 28 September 2018, and the judgment records his submissions. Facts. A writ petition under article 32 challenged the practice at the Sabarimala temple of excluding women between ten and fifty, and rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965. Held. By four to one the Court allowed the petition, holding the exclusion violative of article 15(1) and rule 3(b) ultra vires the Act insofar as it prohibited the entry of women, Indu Malhotra J. dissenting. Why it matters here. The amicus argued the ultra vires point independently of the petitioners, and both the majority and the minority deal with his argument by name, which is exactly what the office is for. The case itself is worked in [Indian Young Lawyers Association v. State of Kerala].

What an amicus is not

An amicus curiae is not a party and cannot be treated as one. He does not take instructions from a litigant, cannot compromise the matter, and does not carry a client's interests. His duty is to the court.

A worked example

An Indian company in Mumbai has a supply contract with a company in Singapore. The contract contains a clause saying that all disputes shall be referred to arbitration in Mumbai under the rules of a named institution.

A dispute arises and the Singapore company sues in the Bombay High Court instead. The Indian company, before filing its first statement on the substance of the dispute, applies under section 8. The court's task is narrow: unless it finds that prima facie no valid arbitration agreement exists, it shall refer the parties to arbitration. Section 7 is satisfied, because the clause is in writing and is contained in a document signed by the parties.

Suppose there had been no arbitration clause. Then the question would be jurisdiction. Subject matter: a contractual claim is a suit of a civil nature and no statute bars it, so section 9 is satisfied. Pecuniary: the value decides which court, and section 15 requires the lowest grade competent. Territorial: section 20 allows the suit where the defendant resides or carries on business, or where the cause of action arose wholly or in part, so if the goods were to be delivered in Mumbai, part of the cause of action arose there.

Suppose the suit is filed in the wrong district and nobody objects until the appeal. Section 21(1) shuts the objection out, because it was not taken at the earliest opportunity in the court of first instance and no failure of justice is shown. Had the objection been that a civil court could not entertain the claim at all, no lapse of time would have cured it.

And suppose the case raises a novel question about the enforcement of an international convention on which nobody has argued the contrary view. The court may appoint an amicus curiae to put it, exactly as happened in the Sabarimala matter.

Distinctions table

What these words do NOT mean

A ratified treaty is not automatically Indian law. Article 253 exists because implementation needs legislation. The Vishaka route operates only where there is no domestic law in the field.

Arbitration is not compulsory ADR. It rests on a written agreement, and section 8 is available only where one exists.

A section 34 application is not an appeal. The grounds are listed and closed, and the merits of the award are not reopened.

Jurisdiction is not the same as being right. A court can have jurisdiction and decide wrongly, which is what appeals are for. It can also decide correctly without jurisdiction, and the decree will still be a nullity.

An amicus curiae is not counsel for a party, even where the appointment is made because a party is unrepresented. His duty runs to the court.

Limits and criticism

Article 51 is a Directive Principle and is not enforceable, so the constitutional commitment to international law is a commitment of aspiration until Parliament legislates.

Arbitration was meant to be faster and cheaper than litigation, and the standing criticism is that section 34 challenges followed by appeals reproduce in court the delay arbitration was chosen to avoid.

Section 21 protects finality at the cost of correctness. A decree passed by a court of the wrong district stands if the objection was not taken in time, which is defensible as a rule against tactical silence and is uncomfortable to state as a principle.

The appointment of an amicus in a criminal case is sometimes formal rather than real, and that is a fair criticism of how the office is administered rather than of the office itself.

Quick revision

International law: rules States accept as binding between themselves. Sources: treaties, custom, general principles, with judicial decisions and writings as subsidiary. Constitution articles 51 and 253, Union List entry 14. India is dualist: a treaty needs legislation, except that in the absence of domestic law a consistent international norm may be read into the fundamental rights, as in Vishaka.

Arbitration: Arbitration and Conciliation Act 1996, s.2(1)(a), institutional or ad hoc. s.7, agreement in writing, in a clause or a separate agreement. s.8, the court shall refer unless prima facie no valid agreement exists. s.34, setting aside on listed grounds only, not an appeal. CPC s.89 lists the ADR methods.

Jurisdiction: subject matter, CPC s.9, presumed unless expressly or impliedly barred; pecuniary, by the constituting statute, with s.15 requiring the lowest competent grade; territorial, s.16 for immovable property and s.20 otherwise; original and appellate. s.21: objections to place and to pecuniary limits must be taken at the earliest opportunity and require a failure of justice; a defect of subject matter jurisdiction is not curable by consent or by waiver.

Amicus curiae: friend of the court. Appointed to represent an unrepresented accused, to argue a view nobody is arguing, to assist on a technical subject, or to coordinate long litigation. Owes a duty to the court, not to a party.

Test yourself

1. Is a treaty ratified by India enforceable in an Indian court?

Not by itself. India follows the dualist approach, so a treaty binds India in international law on ratification but becomes enforceable domestically only when Parliament legislates, which is what article 253 empowers it to do. The qualification is that where no domestic law occupies the field, and the international norm is consistent with the fundamental rights and in harmony with their spirit, the Supreme Court has read it into those rights as an aid to construction, as it did in Vishaka v. State of Rajasthan.

2. What are the requirements of a valid arbitration agreement?

Under section 7 of the Arbitration and Conciliation Act 1996 it must be an agreement to submit to arbitration all or certain disputes which have arisen or may arise in respect of a defined legal relationship, whether contractual or not; it may be an arbitration clause in a contract or a separate agreement; and it must be in writing. It is in writing if contained in a document signed by the parties, in an exchange of letters or other telecommunication including electronic means providing a record of it, or in an exchange of statements of claim and defence in which its existence is alleged by one party and not denied by the other.

3. What must a court do when a suit is filed in a matter covered by an arbitration agreement?

Under section 8(1), if a party to the agreement, or a person claiming through or under him, applies not later than the date of submitting his first statement on the substance of the dispute, the judicial authority shall refer the parties to arbitration, notwithstanding any judgment, decree or order of any court, unless it finds that prima facie no valid arbitration agreement exists. The application must be accompanied by the original agreement or a certified copy.

4. Name the kinds of jurisdiction of a civil court and the provision governing each.

Subject matter jurisdiction, under section 9 of the Code of Civil Procedure 1908, which gives the courts jurisdiction over all suits of a civil nature except those expressly or impliedly barred. Pecuniary jurisdiction, fixed by the statute constituting the court, with section 15 requiring the suit to be filed in the lowest grade competent to try it. Territorial jurisdiction, under section 16 for suits relating to immovable property and section 20 for other suits. And original as against appellate jurisdiction, according to whether the court hears the matter for the first time or on appeal.

5. A suit is filed in the wrong district and the objection is taken for the first time in appeal. What happens?

Section 21(1) provides that no objection as to the place of suing shall be allowed by any appellate or revisional court unless it was taken in the court of first instance at the earliest possible opportunity, and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. The objection therefore fails. The result would be different if the complaint were that the civil court had no jurisdiction over the subject matter at all, because such a defect goes to the root and cannot be cured by consent or by waiver.

6. What is an amicus curiae, and how does the office differ from that of counsel for a party?

An amicus curiae, literally a friend of the court, is a person, usually an advocate, appointed or permitted to assist the court on a question before it. Courts appoint one where an accused is unrepresented, where a view is not being put by anybody, where technical or voluminous material needs marshalling, or to assist in long-running litigation. The difference from counsel for a party is that an amicus takes no instructions, holds no client's brief, cannot compromise the matter, and owes his duty to the court alone.

The exception. An act of God excuses only where the loss is caused by the natural event and not by the defendant's own failure. A wall that would have fallen in an ordinary monsoon does not become an act of God because the rain was heavy. And where liability is absolute, the defence is not available at all: in M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Court held that an enterprise carrying on a hazardous activity is absolutely liable and not entitled to any of the exceptions available under strict liability. That case is worked in [M.C. Mehta v. Union of India].

Do not confuse it with actus curiae neminem gravabit, "an act of the court shall prejudice no one", which is about a court's own mistake and not about natural events.

2. Salus populi est suprema lex

Literally: the welfare of the people is the supreme law.

As a rule: where private interest and public welfare collide, the law prefers public welfare. It is the principle behind every power the State has to restrict what a person may otherwise do.

Where it operates. In the reasonable restrictions permitted on the freedoms in article 19(2) to (6); in the power of eminent domain, by which the State acquires private land for a public purpose on payment of compensation; in public nuisance; in quarantine and public health powers; and in the whole of environmental regulation.

Illustration. A factory owner has every right to run his factory. When its effluent poisons a river that a town drinks from, the State may close it. The private right yields.

The exception, and it is important. The maxim is not a licence. Public welfare justifies a restriction only where a law authorises it and the restriction is reasonable. Article 21 requires a procedure established by law before life or personal liberty is taken, and the welfare of the people is not itself a procedure.

Companion maxim. Salus populi is often quoted with necessitas publica major est quam privata, public necessity is greater than private necessity, which says the same thing from the other side.

3. Nemo tenetur seipsum accusare

MU prints it as "Nemo Tenetur Sepisum Accusare". The maxim is nemo tenetur seipsum accusare.

Literally: no one is bound to accuse himself.

As a rule: a person cannot be compelled to give evidence against himself. It is the rule against self-incrimination and it is a constitutional guarantee in India, not merely a maxim.

Where it operates. Article 20(3): no person accused of any offence shall be compelled to be a witness against himself.

Three conditions have to be satisfied before article 20(3) applies, and listing them is the answer to any question on this maxim. The person must be accused of an offence; there must be compulsion; and the compulsion must be to be a witness against himself, meaning to furnish testimonial material that by itself tends to incriminate.

Illustration. A confession extracted by threat is inadmissible and its extraction is unlawful. Being required to give a specimen signature or a thumb impression for comparison is not, on the accepted view, being a witness against oneself, because it furnishes material for comparison rather than testimony.

The exception. The protection is against compulsion. A statement voluntarily made is not hit by it. And the article protects an accused; a witness who is not accused of an offence is in a different position.

The protection is personal, and that is asked. Article 20(3) protects the person accused from being compelled to be a witness against himself. It gives no right to stop somebody else speaking. So where two suspects are questioned and one chooses to remain silent, he cannot invoke the maxim to prevent the other from making a statement, even one that incriminates him: the other person's statement is not compelled testimony by him, and what weight it carries against him is a question of evidence and not of article 20(3).

Where else it shows. The eleven requirements in D.K. Basu v. State of West Bengal, AIR 1997 SC 610, exist because custodial interrogation is where compulsion actually happens, and they are worked in [D.K. Basu v. State of West Bengal].

4. Leges posteriores priores contrarias abrogant

MU prints it as "Leges postpriores priores contrarias abrogant". The maxim is leges posteriores priores contrarias abrogant.

Literally: later laws repeal earlier contrary laws.

As a rule: where two statutes of the same legislature conflict and cannot be reconciled, the later prevails, and to the extent of the inconsistency the earlier is impliedly repealed.

Where it operates. It is the foundation of the doctrine of implied repeal. It is also why section 6 of the General Clauses Act 1897 exists, since a repeal, express or implied, would otherwise destroy everything done under the earlier Act; section 6 preserves it. Repeal is worked in [Repeal of Statutes, and the Provisions Dealing with Repeal under the General Clauses Act].

Illustration. A 2010 Act says a licence lasts five years. A 2020 Act by the same legislature says every such licence lasts three years and says nothing about the earlier provision. The later provision prevails and the earlier one is impliedly repealed to that extent.

The exception, and it carries marks. Implied repeal is not favoured. A court will strain to read the two provisions together, and will hold there is an implied repeal only where they are so inconsistent that they cannot stand together. And a general later Act does not repeal a special earlier one: that is the maxim generalia specialibus non derogant, general things do not derogate from special ones.

5. Nova constitutio futuris formam imponere debet, non praeteritis

MU prints it as "Nova constituito futris formam imponere debet non praetertis". The maxim is nova constitutio futuris formam imponere debet, non praeteritis.

Literally: a new law ought to impose form upon what is to come, not upon what is past.

As a rule: a statute is presumed to operate prospectively. It is not read as affecting things already done, or rights already accrued, unless the legislature has said so expressly or by necessary implication.

Where it operates. It is the presumption against retrospective operation, worked in full in [Prospective Application and Retrospective Effect]. In the criminal law it is not a presumption but a guarantee: article 20(1) provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged, nor be subjected to a greater penalty than that which might have been inflicted under the law in force at that time.

Authority. In Commissioner of Income Tax v. Vatika Township Private Limited, decided on 15 September 2014, a Constitution Bench put the modern position. Facts. A proviso added to section 113 of the Income Tax Act 1961 by the Finance Act 2002 imposed a surcharge on block assessments, and the Revenue applied it to periods before it came into force. Held. The basis of the principle against retrospectivity is fairness; legislation that modifies accrued rights or imposes obligations, new duties or a new disability is prospective unless a contrary intent is clear. Where a benefit is conferred without a corresponding detriment, a purposive construction may make the statute retrospective, which is why procedural provisions are treated as retrospective. The presumption does not apply to declaratory statutes, which remove doubts about an earlier law. The proviso here was onerous, so the normal presumption applied and it operated prospectively. Why it matters. It gives the maxim, its exceptions and the reason for both in a single judgment.

Two exceptions to name. A procedural amendment can apply to pending proceedings, because nobody has a vested right in procedure. A declaratory or clarificatory amendment operates from the date of the Act it explains.

6. Noscitur a sociis

Literally: a word is known by the company it keeps.

As a rule: where a word of doubtful meaning stands in a list with other words, its meaning may be gathered from those others. The associated words colour it.

Where it operates. It is a subsidiary rule of statutory interpretation and it is on this syllabus twice, here and in [Secondary Rules: Noscitur a Sociis, Ejusdem Generis and Reddendo Singula Singulis].

Illustration. A provision refers to "buildings, structures, walls, fences and other erections". "Erections" standing alone might mean anything erected; in that company it means something of the same physical, permanent kind, and not, say, a scaffolding put up for a day.

Authority. In State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610, the Court both applied and limited the maxim. Facts. Two ward servants of a State run hospital in Bombay were retrenched without the compensation required by section 25F(b) of the Industrial Disputes Act 1947, and the question was whether a hospital is an "industry" within the wide definition in section 2(j), which includes any business, trade, undertaking, manufacture or calling of employers. Held. The hospital was an industry, and the maxim could not be used to cut down "undertaking" by reference to the narrower words around it: noscitur a sociis is a rule of construction which can apply only where the intention of the legislature in associating words of wider import with those of narrower import is in doubt, or the meaning of the wider word is itself in doubt. Why it matters. It supplies the limit on the maxim, which is the half students leave out.

The exception. Where the wider word is clear, the maxim has nothing to work on. It is a tool for doubt, not a general licence to narrow.

7. Expressio unius est exclusio alterius

MU prints it as "Expressio unis est exclusio alterius". The maxim is expressio unius est exclusio alterius.

Literally: the express mention of one thing is the exclusion of another.

As a rule: where a statute expressly mentions certain things, the implication is that things of the same class not mentioned are excluded.

Where it operates. Throughout statutory interpretation, and particularly in reading lists of exceptions, of grounds and of persons entitled.

Illustration. A rule says "a candidate may be exempted from the fee if she is a member of a Scheduled Caste or a Scheduled Tribe". A candidate from some other disadvantaged group is not exempted; the express mention of two categories excludes the rest.

Authority in this book. Tolaram Relumal v. State of Bombay, AIR 1954 SC 496, is a good illustration of the same instinct at work in a penal provision. Facts. Section 18(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 made it an offence for a landlord to receive any premium in respect of the grant, renewal or continuance of a lease, and the appellants had received money under a contract to grant a lease of premises not yet built. Held. The words "grant, renewal or continuance of a lease" suggest a lease that exists, and do not cover an executory agreement to grant one; and where two possible and reasonable constructions can be put on a penal provision, the court must lean towards the one that exempts the subject from penalty. Why it matters here. What was expressly named was three situations, and a fourth outside them could not be brought in.

The exception, and it is a large one. The maxim is a weak aid and is easily displaced. A list may be illustrative rather than exhaustive, and a definition introduced by "includes" is by its nature not exhaustive at all. The maxim applies only where the list is naturally read as complete.

8. Vigilantibus, non dormientibus, jura subveniunt

MU prints it as "Vigilantibus, non domientibus, jura subveniunt". The maxim is vigilantibus, non dormientibus, jura subveniunt.

Literally: the laws assist those who are vigilant, not those who sleep upon their rights.

As a rule: a person who delays in enforcing a right may lose the ability to enforce it. The law fixes time limits and expects them to be observed.

Where it operates. It is the whole justification of the law of limitation.

Section 3(1) of the Limitation Act 1963: subject to sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

Those last words are the point. The court applies limitation on its own; the defendant need not plead it.

Illustration. A creditor lends money repayable on 1 March 2024 and does nothing until 2032. His suit will be dismissed, even if the debtor never raises the point, because the ordinary period for a suit on a debt is three years.

Two qualifications that a complete answer names. Limitation ordinarily bars the remedy and does not extinguish the right, which is why a time barred debt paid voluntarily is validly paid; the exception is section 27, under which the right to property is extinguished when the period for a suit for possession expires. And section 5 allows an appeal or application, though not a suit, to be admitted after the period where the applicant satisfies the court that he had sufficient cause for not coming in time.

A worked example

Ashwin's house in Pune is damaged in 2020 when a builder next door excavates carelessly. Ashwin files a suit in 2032.

Vigilantibus, non dormientibus. The suit is out of time and section 3 of the Limitation Act 1963 requires the court to dismiss it, whether or not the builder pleads limitation. Ashwin's right is not extinguished; his remedy by suit is.

Suppose the builder says the collapse was caused by unprecedented rain. He is pleading actus Dei nemini facit injuriam. It will succeed only if the rain, and not his excavation, caused the damage, and only if the rainfall was genuinely beyond what could reasonably have been guarded against.

Suppose the statute under which Ashwin claims compensation was amended in 2031 to raise the amount, and he says the new figure applies to his 2020 claim. Nova constitutio futuris formam imponere debet, non praeteritis. The amendment is presumed prospective, and Vatika Township explains that a provision imposing a burden is prospective while a benefit conferred without detriment to anyone may be read retrospectively.

Suppose the compensation provision lists "damage caused by excavation, blasting or piling". Ashwin's neighbour, whose wall cracked because of vibration from heavy vehicles, cannot bring himself within it: expressio unius est exclusio alterius, subject to the caution that the list must genuinely be read as complete.

And suppose the same provision then says "or any other operation". Now noscitur a sociis and its stronger cousin ejusdem generis come into play, and Hospital Mazdoor Sabha warns that neither can be used unless there is a genuine doubt to resolve.

Distinctions table

What these maxims do NOT mean

A maxim does not override a statute. Where the Act is clear, the maxim has no work to do.

"Act of God" is not any accident. It is an operation of natural forces that no human foresight could reasonably provide against, and even then it is no answer where liability is absolute.

Salus populi does not permit action without law. Article 21 requires a procedure established by law.

Article 20(3) does not protect a person who is not accused of an offence, and it does not protect against every kind of compelled production, only against being compelled to be a witness against oneself.

Implied repeal is not presumed. Courts reconcile where they can, and a general later Act does not repeal a special earlier one.

Noscitur a sociis and expressio unius are weak aids. Both give way to a clear intention and to an inclusive definition.

Quick revision

Actus Dei nemini facit injuriam: an act of God injures no one; a tort defence, close to frustration under Contract Act s.56; unavailable against absolute liability, M.C. Mehta.

Salus populi est suprema lex: public welfare is the supreme law; article 19(2) to (6), eminent domain, public nuisance, environmental regulation; but article 21 still requires a procedure established by law.

Nemo tenetur seipsum accusare: article 20(3); three conditions, accused of an offence, compulsion, being a witness against himself.

Leges posteriores priores contrarias abrogant: implied repeal; not favoured; generalia specialibus non derogant; General Clauses Act s.6 saves what was done.

Nova constitutio futuris formam imponere debet, non praeteritis: presumption against retrospectivity; article 20(1); Vatika Township for the exceptions, procedural and declaratory.

Noscitur a sociis: a word known by its company; Hospital Mazdoor Sabha, applies only where there is a doubt.

Expressio unius est exclusio alterius: express mention excludes the rest; a weak aid, displaced by an inclusive or illustrative list.

Vigilantibus, non dormientibus, jura subveniunt: Limitation Act s.3, dismissal although limitation is not pleaded; s.5, sufficient cause for an appeal or application; s.27 extinguishes the right in a possession case.

Test yourself

1. What is a legal maxim, and what are its limits as an aid?

A legal maxim is a short traditional statement of a legal principle, usually in Latin, which compresses a rule the courts have long applied. Its limits are that it is not a source of law and cannot prevail over a statute; that it is an aid to reasoning and to interpretation rather than a rule that decides a case by itself; and that almost every maxim carries an exception, so an answer that states the maxim without the exception is incomplete.

2. State the maxim about acts of God and its limits.

Actus Dei nemini facit injuriam, the act of God does injury to no one, meaning that a person is not liable for loss caused by an operation of natural forces so unexpected that no human care or skill could reasonably have provided against it. Its limits are that the natural event must have caused the loss, so a defect the defendant should have remedied is not excused by heavy rain; and that where liability is absolute the defence is not available at all, as M.C. Mehta v. Union of India held for enterprises carrying on hazardous activities.

3. What are the three conditions for article 20(3) to apply?

The person must be accused of an offence, so a person against whom no accusation exists is not protected by it. There must be compulsion, so a voluntary statement is outside the article. And the compulsion must be to be a witness against himself, meaning to furnish testimonial material of an incriminating character, which is why furnishing a specimen signature or thumb impression for comparison has not been treated as being within it.

4. Explain implied repeal and the two limits on it.

Leges posteriores priores contrarias abrogant means that where two statutes of the same legislature are irreconcilable the later prevails and repeals the earlier to the extent of the inconsistency, even if it says nothing about repeal. The first limit is that implied repeal is not favoured: a court will read the two together if it can, and will find an implied repeal only where they cannot stand together. The second is generalia specialibus non derogant, that a later general Act does not repeal an earlier special one.

5. When may a statute operate retrospectively despite the presumption?

Commissioner of Income Tax v. Vatika Township Private Limited identifies the situations. Where the legislature has said so expressly or by necessary implication. Where the provision is procedural, because nobody has a vested right in procedure. Where a benefit is conferred without a corresponding detriment to anyone, so that a purposive construction supports retrospective operation. And where the statute is declaratory, that is, passed to remove doubts as to the meaning or effect of an earlier law, of which the words "shall be deemed always to have meant" are a plain indication.

6. What does the Limitation Act do to a right that is not enforced in time?

Section 3(1) requires the court to dismiss a suit, appeal or application made after the prescribed period, and to do so although limitation has not been set up as a defence, which is the statutory form of vigilantibus, non dormientibus, jura subveniunt. The general effect is to bar the remedy and not to extinguish the right, so a time barred debt paid voluntarily is validly paid. The exception is section 27, under which the right to the property itself is extinguished when the period for a suit for possession expires. Section 5 allows an appeal or application, but not a suit, to be admitted late on sufficient cause.

Illustration. A landlord locks the gate so that the tenant cannot reach the office to deposit the rent, and then applies for eviction for non-payment. The application fails: the default he relies on is his own doing.

In this book. The principle is the reason for the last of MU's six presumptions in [Presumptions in Statutory Interpretation], which is the presumption against a construction that would permit a person to take advantage of their own wrong.

The exception. Like every maxim it yields to a statute. Where an Act attaches a consequence to a state of affairs and does not care how it came about, the court applies the Act.

11. Cessante ratione legis, cessat ipsa lex

MU prints it as "Cessante retione legis cessat ipsa lex". The maxim is cessante ratione legis, cessat ipsa lex.

Literally: when the reason for a law ceases, the law itself ceases.

As a rule: a rule of law that exists for a particular reason has no application where that reason does not apply. Used carefully, it is a rule of construction and of the development of the common law.

Where it operates. Chiefly in the growth of judge-made law. A court which finds that the justification for an old rule has disappeared may decline to apply the rule.

Authority, and it is the clearest illustration on this syllabus. In M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Court refused to apply a rule of 1868. Facts. Oleum gas escaped from the caustic chlorine plant of Shriram Foods and Fertilizer Industries in a densely populated part of Delhi on 4 and 6 December 1985, and the Court, hearing a petition under article 32, had to decide on what principle such an enterprise is liable. Held. The Court declined to be bound by the rule in Rylands v. Fletcher with its exceptions, saying it would not hold its hands back merely because the English courts had not gone further, and laid down that an enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non delegable duty to the community, is absolutely liable for harm resulting, and cannot answer that it took all reasonable care; and that compensation must be correlated to the magnitude and capacity of the enterprise. Why it matters here. The reasoning is the maxim: the conditions that produced the nineteenth century rule no longer obtain, so the rule no longer governs.

The exception, and it is a serious one. The maxim has no application to a statute. A court cannot refuse to apply an Act of Parliament on the ground that the reason for it has passed; only the legislature can repeal. A student who writes that an outdated Act ceases to bind has made the standard error on this maxim.

12. Acta exteriora indicant interiora secreta

Literally: external acts indicate internal secrets.

As a rule: what a person intended is proved by what they did. Since intention cannot be observed directly, the law infers it from conduct and from the surrounding circumstances.

Where it operates. Everywhere that a state of mind has to be established, which is most of the criminal law and a great deal of the civil law.

The statutory hook is section 2(1)(f) of the Bharatiya Sakshya Adhiniyam 2023, which provides that "fact" means and includes any thing, state of things or relation of things capable of being perceived by the senses, and any mental condition of which any person is conscious. Because a mental condition is a fact, it can be proved; and because it cannot be perceived, it is proved by inference from other facts. That definition is worked in [Fact, Person, Offence and State].

Illustration. Nobody can see dishonest intention. What can be seen is that the accused bought a ticket for another city on the morning of the transfer, that he used a false name, and that he closed the account the same day. The intention is inferred from those acts.

The exception. An inference is not a presumption of guilt. The conduct must be capable of supporting the inference, and where the conduct is equally consistent with innocence the inference cannot be drawn, because in a criminal case guilt must be proved beyond reasonable doubt.

13. Domus sua cuique est tutissimum refugium

Literally: to everyone, his house is his safest refuge. The idea is more familiar in the English form: an Englishman's home is his castle.

As a rule: the home has a special protection in law. Entry into it, and search of it, are permitted only in the manner the law allows.

Where it operates. In the right of private defence of property, which is at its strongest in the home. In the requirements for a lawful search: the Bharatiya Nagarik Suraksha Sanhita 2023 requires a search of a closed place to be conducted in the presence of independent and respectable witnesses of the locality, requires a list of the things seized to be prepared and signed, and gives the occupant a right to be present and to a copy of the list. In article 21, from which the right to privacy has been developed. And in the rule that a person residing in a house may refuse entry to anybody who has no legal right to enter.

Illustration. Police officers wish to search a flat. They must comply with the safeguards the Sanhita lays down. A search conducted in defiance of them does not automatically make the evidence inadmissible in India, and it exposes the officers to consequences and weakens the prosecution's case.

The exception. The protection is not absolute. It yields to a lawful warrant, to the specific powers of search and seizure the codes confer, and to the requirements of public safety. The maxim describes a presumption in favour of the occupant, not an immunity.

14. Nemo est haeres viventis

Literally: no one is the heir of a living person.

As a rule: nobody has any right of inheritance in the property of a person who is still alive. Until death, what an heir apparent has is a spes successionis, a mere hope or chance of succeeding, and that is not property and cannot be transferred.

Where it operates. In the law of succession and in the law of transfer of property. Section 8 of the Hindu Succession Act 1956 speaks of the property of a male Hindu dying intestate; nothing devolves before that. And a transfer of a mere chance of an heir apparent succeeding to an estate is void under the Transfer of Property Act 1882.

Illustration. Kiran's father is alive and owns a house. Kiran sells "his share" in that house to a purchaser. The sale conveys nothing, because Kiran has no share; he has a chance of becoming an heir, and only if he survives his father and the father dies intestate and the property is still there.

The exception, and it is important in family law. Under the Hindu Succession Act 1956 as amended in 2005, a daughter, like a son, becomes a coparcener by birth in a Hindu undivided family. A coparcenary interest is not a spes successionis: it exists during the father's lifetime. So the maxim governs succession, and not the coparcenary interest that arises by birth.

15. Ignorantia facti excusat, ignorantia juris non excusat

MU prints it as "Ignorantia facti excusat, ignorantia lex non excusat". The maxim is ignorantia facti excusat, ignorantia juris non excusat.

Literally: ignorance of fact excuses, ignorance of law does not excuse.

As a rule: a person who acts under a mistaken belief about a fact may be excused; a person who acts in ignorance of what the law is, is not.

Where it operates. Directly in the criminal law.

Section 14 of the Bharatiya Nyaya Sanhita 2023: nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.

Section 17: nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in doing it.

Both sections put the maxim into statutory words, and both contain the phrase that carries it: mistake of fact, and not mistake of law.

Illustration. A soldier fires on a mob on the order of his superior officer, in conformity with the commands of the law. He has committed no offence. Contrast a person who takes another's property believing that the law allows him to do so: that is a mistake of law and it excuses nothing.

Why ignorance of law does not excuse. Not because everyone is assumed actually to know every statute, which nobody does, but because a legal system in which a person could escape liability by pleading ignorance of the rule would be unworkable: the plea would always be available and could rarely be disproved.

The qualifications. The mistake of fact must be in good faith and must be reasonable. And where a statute makes knowledge of a fact or of an order an ingredient of the offence, an accused who did not know it is not guilty, because the prosecution has failed to prove an ingredient rather than because ignorance excuses.

Companion maxim. Ignorantia juris quod quisque scire tenetur non excusat, ignorance of the law which everybody is bound to know does not excuse, is the fuller form and is worth a line.

A worked example

In 2019 Nikhil, whose father is alive, executes a document selling his "share" in the family house to Priyanka, who pays him. In 2026 the father dies, and Priyanka sues for possession.

Nemo est haeres viventis. In 2019 Nikhil had no share. He had a spes successionis, a chance of succeeding, which is not property and cannot be transferred.

Quod ab initio non valet, in tractu temporis non convalescit. The document was ineffective when made, and the father's death seven years later does not breathe life into it. What was void at the beginning does not become valid with time.

Nullus commodum capere potest de injuria sua propria. Nikhil, having taken Priyanka's money on a document he knew conveyed nothing, cannot rely on his own conduct to keep both the money and the property. Priyanka's remedy lies in restitution of the price rather than in the conveyance.

Acta exteriora indicant interiora secreta. If Priyanka alleges that Nikhil acted dishonestly, she will prove it not by asserting his state of mind but by pointing to what he did: that he described himself as an owner, that he produced a copy of the mutation entry, that he took the money in cash.

Ignorantia juris non excusat. Nikhil's plea that he did not know a chance of succession could not be sold does not assist him.

And a variation. Suppose Nikhil is prosecuted for cheating and says he genuinely believed his father had already gifted him a share, because he had seen a document that turned out to be a draft. That is a mistake of fact, and if it is in good faith and reasonable, sections 14 and 17 of the Bharatiya Nyaya Sanhita 2023 are engaged.

Distinctions table

What these maxims do NOT mean

"Void never becomes valid" does not mean a claim about it never becomes time barred. Validity and remedy are different questions, and section 27 of the Limitation Act 1963 can extinguish a right to property.

Cessante ratione legis does not apply to a statute. A court cannot decline to apply an Act on the ground that its reason has passed. This is the standard error on the maxim.

Acta exteriora does not reverse the burden of proof. Conduct is evidence from which intention may be inferred; where the conduct is equally consistent with innocence, no inference can be drawn.

Domus sua cuique is not an immunity from search. It is a protection that operates through the safeguards the codes prescribe.

Nemo est haeres viventis does not defeat a coparcenary interest, which arises by birth and exists during the father's lifetime, and since 2005 belongs to a daughter as it does to a son.

Ignorance of law does not excuse, and that is not the same as saying everyone knows the law. It is a rule about what may be pleaded, adopted because the contrary rule would be unworkable.

Limits and criticism

The maxims are English and Roman in origin and are used in a codified system. Once a principle is in an Act, quoting the Latin adds nothing to a court's reasoning, which is why modern judgments cite the section and mention the maxim in passing.

"Ignorance of law is no excuse" is defended on necessity rather than on fairness, and it is uncomfortable in a country with a very large body of subordinate legislation. The answer the law gives is that the alternative is worse.

Cessante ratione legis is unstable. Given a free hand, it lets a court set aside any rule it thinks has outlived its purpose, which is why it is confined to judge-made law and why even there it is used sparingly.

Quick revision

Quod ab initio non valet, in tractu temporis non convalescit: void stays void; void against voidable; but the remedy can still be barred by limitation, s.27.

Nullus commodum capere potest de injuria sua propria: no advantage from one's own wrong; suppression of facts in a writ petition; the sixth presumption in statutory interpretation.

Cessante ratione legis, cessat ipsa lex: the reason gone, the rule goes; M.C. Mehta refusing Rylands v. Fletcher; and NO application to a statute.

Acta exteriora indicant interiora secreta: conduct proves intention; BSA 2023 s.2(1)(f) makes a mental condition a fact.

Domus sua cuique est tutissimum refugium: the home is protected; safeguards on search; private defence; article 21 and privacy; not an immunity.

Nemo est haeres viventis: spes successionis is not property and cannot be transferred; Hindu Succession Act s.8 speaks of a person dying intestate; a coparcenary interest by birth is different.

Ignorantia facti excusat, ignorantia juris non excusat: BNS 2023 ss.14 and 17, mistake of fact and not mistake of law, in good faith.

Test yourself

1. Explain the maxim about void transactions, and state its limit.

Quod ab initio non valet, in tractu temporis non convalescit means that what is not valid from the beginning does not become valid by the passage of time. A void transaction is a nullity when made and remains one, whatever the parties do later, which is why a decree of a court without subject matter jurisdiction stays a nullity however long it goes unchallenged. The limit is that the maxim goes to validity and not to remedy: a suit to set aside a void transaction can itself become time barred, and section 27 of the Limitation Act 1963 can extinguish a right to property altogether.

2. Give three applications of "no one may take advantage of his own wrong".

A party who himself prevents performance of a contract cannot complain of the other side's non-performance. A petitioner who suppresses material facts in a writ petition is refused relief on that ground alone, without the merits being reached. And a party who has caused the delay in a proceeding cannot rely on that delay to defeat the opposite party. The principle also appears among the presumptions of statutory interpretation, as a presumption against a construction that would let a person profit from their own wrong.

3. Why can cessante ratione legis not be applied to a statute?

Because repeal is for the legislature and not for a court. The maxim says that where the reason for a rule has ceased the rule ceases, and it works in the development of judge-made law, where the court that made the rule may decline to apply it once its justification has gone. An Act of Parliament remains in force until it is repealed or is held unconstitutional, and a court has no power to disapply it on the ground that the circumstances that produced it have passed.

4. How is intention proved, and what statutory provision supports the maxim?

By inference from external acts and surrounding circumstances, which is what acta exteriora indicant interiora secreta expresses. The supporting provision is section 2(1)(f) of the Bharatiya Sakshya Adhiniyam 2023, which defines a fact as including any mental condition of which any person is conscious. Because a state of mind is a fact it may be proved, and because it cannot be perceived by the senses it is proved indirectly, by evidence of conduct from which the inference can be drawn.

5. Can an heir apparent transfer his expected share during the owner's lifetime?

No. Nemo est haeres viventis means that nobody is the heir of a living person, so before the death the expectant heir has only a spes successionis, a chance of succeeding, which is not property and is not transferable; a transfer of it is void. Section 8 of the Hindu Succession Act 1956 confirms the timing, since it deals with the property of a male Hindu dying intestate. The exception is a coparcenary interest in a Hindu undivided family, which arises by birth and belongs since 2005 to a daughter as it does to a son.

6. Distinguish a mistake of fact from a mistake of law, with the provisions.

A mistake of fact is a wrong belief about a factual matter and it may excuse; a mistake of law is ignorance or misunderstanding of what the law is and it does not. Sections 14 and 17 of the Bharatiya Nyaya Sanhita 2023 both state the distinction in terms, protecting a person who, by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself bound, or justified, by law in doing what he did. The mistake must be in good faith and reasonable, and where a statute makes knowledge an ingredient of the offence, the absence of knowledge defeats the charge because an ingredient is missing.