CONCEPTS OF CIVIL LAWS AND

LATIN MAXIMS

ARVIND NATH TRIPATHI

DSNLU
 Civil Procedure Code
The Code of Civil Procedure,1908 (CPC.) regulate the
functioning of Civil courts.
It lays down the:
- Procedure of filing the civil case.
- Powers of court to pass various orders.
- Rights of the parties to case (plaintiff & defendant)
- Jurisdiction & parameters of civil courts functioning.
- Specific rules for proceedings of a case.
- Right of Appeals, review or reference.
 Contents of Plaint
• Parties
• Facts
• No Law, no evidence
• Cause of Action
• Court Fees
• Relief
 Definition : Sec.148
• “Bailment is the delivery of goods by one person
to another for some purpose, upon a contract that
they shall, when the purpose is accomplished, be
returned or otherwise disposed of according to the
directions of the person delivering them”.
 Essential features of Bailment
• Delivery of goods
• Contract
• Return of goods
• Movable property
• In contract of bailment, the person who delivers
the goods is called the “bailor” and the person to
whom the goods are delivered is called the
“bailee”.
 DUTIES OF BAILEE
• Duty to take reasonable care of the goods bailed;
• Duty not to make unauthorized use of the goods
bailed;
• Duty to return the goods on fulfilment of the
purpose;
• Duty to deliver to the bailor increase or profit on
the goods bailed.
 Rights of Bailor:
• Right of termination;
• Compensation from a wrong doer;
• Right to get an increase or profit from goods bailed;
• Right to sue the bailee
 EVIDENCE
• The word ,evidence is derived from the Latin word
evidens or evidere, which means “ to show clearly; to
make clear to the sight; to discover clearly; to make
plainly certain; to ascertain; to prove”.
• The main principle which underlie the law of
evidence are-
• (1) evidence must be confined to the matter in
issue; and
• (3) best evidence must be given in all cases.

• The law of evidence is the same in civil and

criminal proceedings
 Evidence

• "Evidence" means and includes--

• (1) all statements which the Court permits or requires
to be made before it by witnesses, in relation to
matters of fact under inquiry; such statements are
called oral evidence;
• (2) all documents produced for the inspection of the
Court; such documents are called documentary
evidence.
 Bona Fide
• Authentic,genuine,real and true.
• without intention to deceive.
• The court will assume that they have acted bona
fide.
 Ex officio
• Ex officio is a Latin terms meaning “by right of
office” or “by virtue of one’s office or position”.
Ex officio members of boards and committees
are persons who are members by virtue of some
other office or position that they hold.
 Jurisdiction Of Civil Court Under Civil
Procedure Code, 1908
• The word Jurisdiction is derived from Latin terms
“juris” and “dicto” which means “I speak by the
law”.
• Power or authority of the court of law to hear and
determine a cause or matter.
• It is the power to entertain,deal with and decide a
suit,an action,petition or other proceeding.
• Consent can neither confer nor take away
jurisdiction of acourt.
 Jurisdiction and Consent
• 1.A.R.Antulay vs.R.S.Nayak,Mukharji,J.
stated,
“ This court ,by its directions,could not confer
jurisdiction on High Court of Bombay to try
any case for which it did not possess….. . ”
2. Kiran Singh vs.Chaman Paswan
Consent can neither confer nor take away
jurisdiction of acourt.
 Jurisdiction
• Jurisdiction means the authority by which a
court has to decide matters that are brought
before it for adjudication. The limit of this
authority is imposed by charter, statute or
commission. If no such limit is imposed or
defined that the jurisdiction is said to be
unlimited.
 Kind of Jurisdiction
• Territorial or local jurisdiction
• Pecuniary jurisdiction
• Subject-matter jurisdiction
• Original and appellate jurisdiction
• Every presumption should be made in favour of
jurisdiction of a civil court.
• Burden of proof of exclusion of a court is on the
party who asserts it.
 Kind of Jurisdiction
• Jurisdiction may be further classified:
– Original jurisdiction
– Appellate jurisdiction
•
• Criminal and appellate jurisdiction- Supreme
Court, High Courts and District courts have both
original and appellate jurisdiction in various
matter.
 Jurisdiction of Civil Courts
• Courts to try all civil suits unless barred— The
Courts shall (subject to the provisions herein
contained) have jurisdiction to try all suits of a civil
nature excepting suits of which their cognizance is
either expressly or impliedly barred.
 General Rule
• Section 15 of the Code states that every suit
should be instituted in the court of the lowest
grade competent to try it.
Object-
• to see that the courts of higher grades shall not be
overburdened with suits; and
• to afford convenience to the parties and witness
who may be examined in such suits.
 Suits of Civil nature
• Suits relating to rights to property;
• Suits relating for damages for Civil wrongs;
• Suit for restitution of conjugal rights;
• Suits for dissolution of marriages;
• Suit for rents;etc.
 Suits not of civil nature
• Suits involving principally caste questions;
• Suits against expulsions from caste, etc.
 Status quo
Status quo generally refers to the existing state of
affairs or circumstances. A status quo order may be
issued by a judge to prevent any of the parties
involved in a dispute from taking any action until
the matter can be resolved. It seeks to prevent
harm or preserve the existing conditions, so that a
party's position isn't prejudiced in the meantime
until a resolution is reached.
 Judgment

• Defined u/s 2 (9) of the Civil Procedure

Code. It means the statement given by
the Judge on the grounds of a Decree or
Order. Thus a judgment sets out the
ground and the reason for the Judge to
have arrived at the decision.
• Judgment is the decision of a court of
justice upon the respective rights and
claims of the parties to an action in a suit
submitted to it for determination – State
of Tamilnadu V. S. Thangaval.
 Judgment

• Judgment is the statement of the Court on the

grounds for having arrived at a decision.
• A judgment must contain the following
components:
1. Statement of facts of the case;
• 2. The points or issues for determination;
• 3. The decision on such issues and finally;
• 4. The reasons for such a decision.
 Decree

• Defined u/s 2(2) of Civil Procedure Code, 1908. It

means the formal expression of an adjudication
which conclusively determines the rights of the
parties with regard to all or any of the matter in
controversy in the suit.
 Decree

• 1. There must be an adjudication - Adjudication means

Judicial Determination of the matter in dispute. In other
words, the court must have applied its mind on the facts
of the case to resolve the matter in dispute.
2. There must be a suit - Decree can only be given in
relation to a suit. Although CPC does not define what suit
means, in Hansraj vs Dehradun Mussoorie Tramways Co.
Ltd. AIR 1933, the Privy Council defined the term suit as "a
civil proceeding instituted by the presentation of a
plaint".
 Decree

• 3. Rights of the parties - The adjudication must

be about any or all of the matters in controversy
in the suit. The word right means substantive
rights and not merely procedural rights. For
example, an order refusing leave to sue in forma
pauperis (i.e. an order rejecting the application
of a poor plaintiff to waive court costs) is not a
decree because it does not determine the right
of the party in regards to the matters alleged in
the suit.
 Decree

• 4. Conclusive Determination - The determination

of the right must be conclusive.

5. Formal expression - To be a decree, the court

must formally express its decision in the manner
provided by law. A mere comment of the judge
cannot be a decree.
 Decisions which are decrees:
Illustrations
• Dismissal of appeal as time barred;
• Dismissal of suit or appeal for want of evidence
or proof;
• Order holding that the right to sue does not
survive;
• Order holding that there is no cause of action;
• Order refusing one of several reliefs;
• Order holding appeal not maintainable;
• Rejection of plaint for non-payment of court
fees.
 Decisions which are not decrees:
Illustrations
• Return of plaint for presentation to proper
court;
• Order refusing to set aside sale;
• Order directing assessment of mesne profits.
• “Decree-holder” means any person in whose
favour a decree has been passed or an order
capable of execution has been made.
• “Judgment-debtor” means any person against
whom a decree has been passed ,or an order
capable of execution has been made.
 Order
• Order
As per Section 2 (14), The formal expression of
any decision of a civil court which is not a
Decree is Order.
 Mesns profits

Mesnes profits of property means those profits

which the person in wrongful possession of such
property actually received or might with ordinary
diligence have received there from together with
interest on such profits but shall not include profits
due to improvement made by the person in
wrongful possession.

.
 Mesns profits

Every person has a right to possess his property. And

when he is deprived of such right by another person
he is not only entitled to restoration of possession
of his property but also damages for wrongful
possession from that person. The mesne profits are
thus a paid to the real owner.

The object of awarding a decree for mesne profits is

to compensate the person who has been kept out of
possession and deprived of enjoyment of his
property even though he was entitled to possession
thereof.
 Meaning of Hostile Witness

• Reasons
• Absence of Witness Protection Programs
• Protracted Trials;
• Easy Availability of Bail to the Accused;
• Defaults in Payments of Allowances;
• Lack of Adequate Facilities in Courts;
• Use of Stock Witness ;
• Use of Money Power by the Accused;
• Threat
 Result
• In Indian Criminal Justice system the Prosecution
has to prove his case beyond reasonable doubt
and the benefit of doubt always go in favors of the
accused. If witness changes his statement then
accused may get acquittal's. As a result people’s
faith in efficacy and credibility of judicial process
will be shattered.
 What is BENCH?

• A seat of judgment or tribunal for the

administration of justice; the seat occupied by
judges in courts; also the court itself or the
aggregate of the judges composing a court, as in
the phrase “before the full bench.”
(Black's Law Dictionary)
 Full Bench - What is the meaning to
full bench in court language ?
• Full Bench in High Courts comprises of Three
or more Judges hearing a case and giving
independent judgment if their opinion differs
or collective judgment if their opinion agrees.
Recently such Full Bench Judgment was
delivered by Three Allahabad High Court
Judges in Ram Janma Boomi case.
 General rule a decision
• As general rule a decision of Bench consisting
of larger number of Judges prevails over the
decision rendered by a Bench of lesser
number of Judges. AIR 1974 S.C. 1596,
Muttulal v. Radhe's Lal, AIR '1976 SC 2433,
Union of India and another v,K.S.
Subramanian, (1995) 1 SCC 58, Commissioner
Sales Tax J & K and Ors. v. Pine Chemicals Ltd.
& others.
 Precedent
A principle of Jurisprudence or policy of Courts
by which
the Courts and Authorities
are required to follow
a rule of law
established previously in cases involving similar
issue.
 Precedent
• An important feature of the administration of
justice is that 'like cases should be decided
alike', to avoid any kind of discrimination in
the matter of application of laws in similar
cases, though may be decided by different
Courts in any part of a State or the country. It
is possible only through binding judicial
pronouncements.
 Precedent
• As a matter of public policy, it is also
important that there must be some degree of
certainty in the laws so that people may
conduct their affairs and plan their future
accordingly. In one of the decisions reported
In AIR 1968 Alld. 100, Ram Manohar Lohia
and others v. State of U.P. and others, it has
been observed that it is necessary to
maintain judicial uniformity and judicial
discipline. Precedents maintain judicial
uniformity .
 Precedent
• The observation of Lord Denning as quoted in AIR
1985 S.C. 1585, Distributors v. Union of India, is: “The
doctrine of precedent does not compel your lordship
to follow the wrong path until you fall over the edge
the cliff." The gist of the matter seems to be that as
far as possible within a reasonable limits a view
which is coming down since long may be adhered to
in the interest of public of predictability and certainty
of law but as observed by the Supreme Court also it
cannot stretched beyond a limit of rigidity. An
obviously wrong Judgment against the law, cannot be
protected either by doctrine of binding precedents
nor stare decisis.
 Persuasive Value
• So far decisions of High Courts are concerned,
they have binding effect within the State and
the decisions of the High Courts of other
States have on persuasive force. The High
Court while deciding a matter, if faced with
decisions of its own High Court of co-equal
number of Judges, taking irreconcilable view
on the point the proper course is to refer the
matter to larger Bench.
 Ratio decidendi
It refers to
the rule of law
established
in a particular case.
 Obiter dictum
It refers to the
incidental findings
of the Court on various legal
issues arising during the
arguments for arriving at the
final judgments.
Obiter dicta of the Supreme Court
• Obiter dicta of the Supreme Court is binding on all Courts.
This we find in AIR 1959 SC 814, The Commissioner of
Income Tax, Hyderabad,Deccan v. Mls Vazir Sultan and
sons, AIR 1975 S.C. 1087, Municipal Committee, Amritsar
v. Hazara Singh, AIR 1969 Allahabad 304 (FB), Chobey
Sunder Lal v.Sonu alias Sonpal and another, AIR 1989
Delhi 193(FB), D.C.M. Limited v. Union of India and others,
AIR 1960 Allahabad 672, Union of India v. Firm Ram Gopal
Hukum Chand and others, and AIR 1967 Rajas than 1,
Radha Kishan v. State of Rajasthan and others.
It has been observed that judicial uniformity and judicial
discipline require that courts must also follow the obiter
dicta of the Supreme Court.