(1)

SR.NO " # $
Ubi Jus ibi remedium
Qui facit per alium facit per se.

Actus non facit reum, nisi mens sit rea.

! " # $# ! #
Actio personalis moritur cum persona. % & #% & ' ""
' ' (
Volenti non fit injuria. ( Leave & License)
) * ') ' #
Vigilantibus et non dormientibus jura subveniunt. " ""
+ "
Damnum Sine Injuria, Injuria Sine Damnum.
( + (
Salus populi est supreme lex. , ' * "
Nemo dat quod non habet. ! !' ( #
Impossibilium nulla obligatia est.
Res Ipsa Loqutor. ) )
Rex Non Potest Peccare. -. #
Respondeat Superior. "
Ignorantia Facti Excusat: Ignorantia Juris non Excusat. ,/ 01 +
" ,
In Jure Non Remota causa sed Proxima Spectatur. " 2
3 + " )#
Affirmanti Non neganti Incumbit Probatio. % & ' ) ,
+ !4
Nemo Debet Bis Puniri Pro Uno Delicto. ! ' . -
(
nemo debet esse judex in propria causa
in pari delicto, potior est conditio possidentis – .' / +

Nemo contra factum suum venire potest " 05 3 #

'De minimis non curat lex.'
Caveat Emptor. - "
Delegata potestas non potest delegari.
In pan i delicto poitor est conditio Defendantis
utere tuout alienum non loedas
A Discussion on Law of Double Jeopardy in India : – 6 7 ' 0 Jeopardy
0 + .! 0 ' . ( + 8 & 9 & - (
# - '

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 (2)

(( 1)) : - % & % '

(There is no wrong without a remedy) OR (Where there is a right there is a remedy)
If the plaintiff has right he must of necessity have a means to vindicate and maintain it
and a remedy if he is injured in the exercise or enjoyment of it and it is a vain thing to imagine
a right without a remedy, because want of right and want of remedy are reciprocal. The
significance of this maxim means that law provides a remedy for every wrong. If man will
multiply injuries action must be multiplied too, for every man that is injure ought to have bis
recompense.
It is a general rule that remedy is provided for every violation ( ) of a right. The
law of torts is said to be a development of the maxim “Ubi jus ibi remedium”. Here, Jus
signifies that the legal authority to do or to demand something and remedium may be the right
of action, or the means given by law, for the recovery or assertion of a right ( ). “If a
man has a right, he must have a means to vindicate ( ) and maintain it and a remedy if
he is injured in the exercise or enjoyment of the right, and it is useless thing to imagine a right
without a remedy; want of right and want of remedy are reciprocal.” (Ashby V. White).
The maxim does not mean, as it is sometimes supposed, that there is a legal remedy for
every moral or political wrong. If this were its meaning, it would be absolutely untrue. There
is no legal remedy for the breach of a solemn ( ) promise not under seal ( ) and made
without consideration; nor for many kinds of verbal slander ( ); nor for oppressive
( ) legislation, though it may reduce men practically to slavery ( ).
The maxim means only that legal wrong and legal remedy are correlative terms; and it
would be more intelligibility and correctly stated, if it were reversed so as to stand, where
there is no legal remedy, there is no legal wrong. Again, there is in law no right without a
remedy; and if all remedies for enforcing (executing) a right are gone, the right has in point of
law ceased (prevent, to close, to terminate) to exist.
The maxim was not applied in the following cases: -
(1) Ashby V. White : (1703) 2 Raym Ld. 938
In this leading English case, the defendant, a returning officer at a voting booth, wrongfully
and maliciously refused to register a duly tendered vote of the plaintiff, who was a qualified
voter. The candidate for whom the vote was sought to be tendered was, however, elected and
no actual loss was suffered by the rejection of the plaintiff’s vote. The court held that the
plaintiff had a right to vote and this legal right was violated by the defendant. He would,
therefore, have a remedy at law. The plea that the rejection of the vote did not result in an
injury was not allowed as a defence.
(2) D.K. Basu V. State Of West Bengal : (1997) 1 SCC 416
In this landmark case, the Executive Chairman, legal aid Services, West Bengal, a non-
political organization wrote a letter to the Chief Justice of India drawing his attention to the
news items published in some newspapers regarding custodial deaths. Applying this maxim,
the court Held that a mere declaration of invalidity of an action or finding of custodial violence

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 (3)

or death in lock-up, does not by itself provide any meaningful remedy to a person whose
fundamental right to life has been infringed. Hence, although the Constitution has no provision
for compensation, the Supreme Court has judicially evolved a right to compensation in such
cases.

The maxim was applied in the following case: -

(1) Munster V. Lamb : 11 O.B.D. 588
A lawyer, who is working in his professional capacity under the instruction of his client, will
fall under the class of privileged persons, and hence, no action will lie against an advocate for
slander uttered in the course of a judicial inquiry. In such case, this maxim will not hold good.
(2) A’Bad Municipal Corporation V. Nawab Khan Gulab Khan : AIR 1997 S.C. 152
This writ petition was filed by pavement dwellers who were in unauthorized occupation of
footpaths on the main road in A’Bad, contending that the Corporation sought to remove their
encroachments before granting them an opportunity of being heard. Reversing the decision of
the High Court, the Supreme Court Held that the encroacher cannot claim any legal right so as
to have a remedy, and therefore, cannot demand compliance with the principles of natural
justice.

(( )) * + +

( he who does a thing through another does it himself.) OR (He who does an act or thing
through another is deemed in law to do it himself.)
This maxim based on the principle of vicarious liability. A master may be held
liable in damages for the negligence or wrongful act of his servant. If it is done in the ordinary
course of the employment. This is so because a master is supposed to have control over his
servant. The master is held responsible in damages, as the servant may be too poor to pay the
damages.
So, also a person who employs another to do an act for him or to represent him, is
answerable, in civil law, for the act of the agent, done by the agent in the ordinary course of
agency and within the scope of the agent’s authority. Moreover, the agent was appointed to act
for the benefit of the principle. So the principle should be prepared for the liability, as much as
for the benefit.
The doctrine of liability of the master for the acts of his servant is of modern
growth. A master may be liable in damages for the negligence or wrongful act of his servant, if
it is done in ordinary course of employment. This is so because a master is supposed to have
control over his servant. The master is held responsible in damages as the servant may be too
poor to pay the damages. The master’s responsibility for his servant’s acts has also its origin in
the maxim, ‘qui facit per alium facit per se’.
In civil law (torts),

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 (4)

A person who employs another to do an act for him or to represent him is answerable
for the acts of the agent done by the agent in the ordinary course of agency and within the
scope of the agent’s authority. Moreover, the agent was appointed to act fro the benefit of the
principal. So the principal should be prepared for the liability as much as for the benefit.
In criminal law,
Vicarious liability is something exceptional. A master who entrusts some risky work
with an incompetent employee is responsible even criminally for his criminal negligence,
e.g. where the incompetent servant is asked to clean a revolver which goes off in the act,
is liable vicariously. The master is also liable for the act of his servant, where he has left
the whole management to his servant.
Under the Bombay Prevention of Adulteration of Food Act, the Bombay shops and
establishment Act, the Bombay Weight and Measures Act, the master can be held
responsible criminally for the act of the servant.
Where a work involves a danger to the public, a person cannot escape liability by having
it done by an independent contractor, for he knows or ought to know that the work
involves a public nuisance as danger. Both the independent contractor and his engager
are liable in such cases.
Every man in the management of his own affairs whether by himself or by his agents or
by servant shall so conduct them as not to injure another and if he does not and another
thereby sustains damages, he shall answer for it.
He who acts through another is deemed to act in person. A principal is liable for the acts
of his agents.
MASTER IS VICARIOUSLY LIABLE FOR THE ACTS OF HIS SERVANT - A master
is vicariously liable for the acts of his servant in the course of his employment, for the master’s
liability to arise, the act should be authorised by the master or a wrongful and unauthorised mode of
doing some act be also authorised by the master. The driver of a car taking the car on the master’s
business makes him vicariously liable if he commits an accident. But it is equally well settled that if
the servant, at the time of the accident, is not acting within the course of his employment, but is doing
something for himself, the master is not liable. There is a presumption that a vehicle is driven on the
master’s business and by his authorised agent or servant but the presumption can be met
FRAUD BY SERVANT, MASTER IS LIABLE - A master is liable for his servant’s fraud
perpetrated in the course of master’s business, whether the fraud is for the master’s benefit or not, if it
is committed by servant in the course of his employment. There is no difference in the liability of a
master for wrongs whether or not fraud or any other wrong is committed by a servant in the course of
his employment, and it is a question of fact in each case whether it is committed in the course of the
employment.
SERVANT, CONTRACTOR AND AGENTS DISTINGUISHED - An agent is to be
distinguished on the one hand from a servant and on the other hand from an independent contractor. A
servant acts under the direct control and supervision of his master and is bound to conform to all
reasonable orders given to him in the course of his work. An independent contractor, on the other
hand, is entirely independent or any control on interference and merely undertakes to produce a
specified result employing his own means to produce that result. An agent, though bound to exercise

!
 (5)

his authority in accordance with all lawful instructions which may be given to him from time to time
by his principal, is not subject to the direct control or supervision of the principal. An agent as such is
not a servant. But the converse may not be true. A servant may for some purposes be his master’s
implied agent. The extent of the agency depends upon the duties or position of the servant. For
ascertaining whether a person is a servant or an agent of another, a rough and ready test is whether
under the terms and conditions, governing their mutual relationship, a supervisory control is exercised
by the latter in respect of the work entrusted to the former. But this test is not universal in its
application. In determining whether a relationship of employer and employee exists, due regard must
also be had to the nature of particular business, the terms of the engagement and the nature of the
duties to be performed by the person in respect of whom the question has arisen as to whether he is an
employee.

(( )) , -
! " # $# ! #
(The intent and the fact must both concur ( ) to constitute a crime)

An act done without a guilty mind ( ) does not constitute a crime

because the crime is not complete unless there is a guilty mind behind it. Act and intent
together with to create an offence. It means an offence = Criminal Act + Criminal Intention.
Bear intention by itself is not an offence. No crime is committed if the mind of the person
doing the fact is innocent. Law must enquire into the mental attitude of the doer. The
principles of English Common Law embodied in the maxim ‘Actus non facit reum, nisi mens
sit rea.’
This maxim has a limited application and in the modern day, crimes are more
accurately defined by statutes. The doctrine of “Mens Rea (Guilty mind)” in its application to
criminal law requires that a guilty mind should be associated with the fact. The guilty mind
must consist of either intention or negligence. Very often even, knowledge of the
consequences will be considered as a part of guilty mind.
This maxim has no application to offences under the Indian Penal Code, because the
definitions are clear. Every ingredient or elements of the offence is stated in the definition
expressly as to the state of mind of the accused. It states whether the act must have been done
knowingly, dishonestly, fraudulently, voluntarily etc. thus, the definition of the offence is self-
sufficient ( ). Crime is proved by proving the ingredients in various Sections of the I.P.C.
However, mens rea is an essential ingredient of every offence except: -(Exceptions)
(1) Where statutes impose strict liability- cases not criminal in real sense but are
prohibited under public interest.
(2) Public nuisance.
(3) Cases criminal in form but are really only summary mode of enforcing a civil
right.
(4) Ignorance of law is no excuse- the fact that he was not aware of the rule of
law and he did not intend to do it, is no defence.

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 (6)

Cases where the maxim was applied: -

In Re. Tunda ; (1950) 51 Cr. L. J. 402 : - In this case, the accused and the deceased were
wrestlers. They arranged a bout in the course of which the deceased fell as a result of a blow
from the accused and broke his skull. Under the circumstances, selecting books for educational
institutions were themselves the author of the books whish were to be considered for selection.
It was held that the Supreme Court that the possibility of bias could not be ruled and that “ it is
not the actual bias in favour of the author-member is material, but the possibility of such bias.”
Cases where the maxim was not applied: -
(1) Jaswant Singh Nerwal V. State of Punjab (1991) Supp 1 SCC 311: -
In this case, at the viva voce examination held by the Public Service Commission for
recruitment of officers, where the marks were distributed between the examiners, one of the
examiner’s son was appearing it. Hence, that examiner was not present and his marks were
distributed amongst the other examiners. When the examiner’s son was declared successful,
the unsuccessful candidates challenged the results as being in violation of natural justice due to
existence of reasonable likelihood of bias. Reversing the order of lower Court, the Supreme
Court held that, considering the manner evidence showing the father’s involvement in the
selection of his son, and hence this maxim could not apply.
(( . )) , + + % & #% & ' "
" ' ' (
(A person right of action dies with the person)
This maxim refers to extinction of liability on the death of a person common law if
and injury was done either to the person of the poetry of another for which only damages
could be recovered the on died with the person to whom or by whom the injury was sed in
other words a personal right of action didn’t survive on death of either paety. Exception to the
maxim are almost the same under Indian law also the statutory exception being contained in
the legal representatives suits act 1855 the fatal accidents act 1855 and the Indian succession
act,1965.

At common law, if an injury were done either to the person or property of another ,
for which damages only could be recovered in satisfaction, the action dies with the person to
whom, or by whom, the wrong was done. It is not known when this principle came into being,
the ambit (border) of its application was limited or shorten by several statutes.
=> At common law, none can recover damages for the death of another. This is known
as the rule of Baker V. Bolton.
‘In civil court, the death of a human being could not be complained of as an injury’-
meaning an actionable injury. A husband, parent, or master can’t recover damages in respect
of instantaneous ( ) death of a wife, child or servant. If there is interval between
the wrongful act and the death, damages may only be recovered for loss of society or services
upto the time of death.

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 (7)

=> In Baker’s case the plaintiff ( ) and his wife were passengers on the top
of a stage-coach belonging to the defendants. Owing to the negligence of the defendants, the
stage-coach was over-turned and the plaintiff was much bruised ( ) and his wife so
severely hurt that she died a month after. It was held that the plaintiff was entitled to damages
for the bruises sustained by him and for the loss of the wife’s society till the moment of her
death.
Indian Law : - According to a Section-306 of the Indian Succession Act, 1625, “All
demands whatsoever and all rights existing in favour of or against a person at the time of his
decease, survive to and against his executors or administrators; except causes of action for
defamation (sec-499), assault (sec-351) as defined in the I.P.C., or other personal injuries not
causing the death of the party.”
=> The general rule of common law still applies for causes of action for defamation,
seduction (sec-366,366A of I.P.C.) ( : + ! "! "#$ ), including one’s spouse to live
with another, and to claims for damages for adultery (%& ; & <3
" )$ & ( ) (sec-497 of IPC). The right of a father to sue for
compensation for the seduction of his daughter is a personal right and dies with the father.
=> Except in the cases specified above, the right to sue for a tort does not cease with the
life of either party. Hence the application of the maxim ‘actio personalis moritur cum
persona’ is confined only to those cases. For example, the maxim does not apply to torts
which involve the wrongful appropriation or acquisition by one man of property belonging to
another and the remedy for such wrongful act can be pursued (sec-48 of CrPC) ( ' )
against the deceased wrongdoer.
Illustrative cases where the maxim was applied:-
Prusti v. Mohanty:A.I.R1978 / in this cases the orissa high court held that where a money
decree was passed against a hindu in respect of the amount received by him from the decree
holder by misrepresentation of facts the liability would be personal and could not be extended
to his son under hindu law it was held that whatever relief the decree holder had against the
father under the law of torts did not subsist against his son as it ended with his father’s death.
Illustrative cases where the maxim was not applied:-
Hyde v. Dean of Windsor: cro. Elliz.552/ in this case the court held that the personal
representatives of the deceased defendant were liable in so far as they had assets on all the
contracts of the deceased broken during his lifetime and also contracts broken after his death
for the performance of which the deceased’s skill was not required and which were not to be
performance by the deceased in person.

(( / )) 0 ) * ') ' #
[L. volens / willing + non / no + facere / to make, do + iniuria / injury, injustice, wrong]
( Damage suffered by consent not cause of action OR Concent does not creat any harm )
( Harm suffered voluntarily does not constitute a legal injury and is not actionable) OR (He
who volunteers cannot complain injury)

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 (8)

Where the sufferer is willing no injury is done. It means a man cannot complain of
harm to the chances of which he has exposed himself with knowledge and his free will. The
maxim ‘Volenti Non fit Injuria’ is founded on good sense and justice.
The maxim literally means that no breach of a legal right is committed against one who
is a willing party.
In other words no man can enforce a right which he has voluntarily waived or
abandoned.
It applies to cases where one consents to run the risk of unintentional harm, e.g.
spectators at cricket, football, and hockey matches etc., or a patient in the case of a
surgical operation.

The maxim applies in the first place, to intentional acts which would otherwise be
tortuous ( # ()& *&). A trespasser, having knowledge that there are spring guns in a wood,
although he may be ignorant of the particular spots where they are placed, cannot maintain an
action for injury received in consequence of his accidentally treading (walking) on the latent
( (+& , ) wire communication with the spring gun and thereby letting it off, for he voluntarily
exposes himself to the mischief (damage). But a person, who climbs over a wall in a stray ( -
. $ ) fowl and is shot by a spring gun, set without notice, can recover damages pursuit. (Bird
V. Holbrook).
The maxim applies; in the second place, to consent to run the risk of harm which would
otherwise be actionable. Thus the master is not liable for injury done to a servant who
undertaken service knowing the risks incidental there to.

There are certain limitations to the applicability to this maxim: -

(1) No consent can legalise an unlawful act e.g. fighting with naked fists ( / 0
) , a duel (11&23) with sharp swords (3 0).
(2) The maxim has no validity against an action based on a breach of statutory duty.
Thus, it is no answer to a claim made by a workman against his employer for injury
caused through a breach by the employer of a duty imposed upon him by a statute.
(3) Rescuing ( & 4 5- %& 3 '): - It doesn’t apply where the plaintiff
has, under an exigency ( " +& ) caused by the defendant’s wrongful misconduct,
consciously ( 6 " ) and deliberately ( 3 0 7 ) faced a risk, even of death,
to rescue another from imminent ( $ 7 ) ) danger of personal injury or death, whether
the person endangered ( & ) is one to whom he owes a duty of protection, as a
member of his family, or is a mere stranger to whom he owes no such special duty.
(4) It doesn’t apply to cases of negligence.

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 (9)

(( 1 )) Vigilantibus et non dormientibus jura subveniunt. " "" +

"
(Law helps those who are alert/the vigilant ( "&) and not those who sleep on their tights/the
dormant( # " &)

In order to avoid the difficulty and error that necessarily result from the lapse of time,
the presumption of the coincidence (one time made event) of fact and the right is accepted as
final after a certain number of years. Whoever wants to dispute this presumption within that
period, his right will be forfeited as a penalty for “Vigilantibus et non dormientibus jura
subveniunt”.
The Indian Limitation Act, 1963 says that “to consolidate and amend the law of
limitation of suits and other proceedings and for purposes connected therewith”. The
provisions of this Act will apply to all civil and criminal proceedings which can be taken in to
a court of law. However, the Limitation Act cannot apply to proceedings like an election
petition in as much as the Representation Of the People Act is a Complete and self-
contained Code which does not admit of the introduction of the principles or the provisions of
law contained in the Indian Limitation Act.
( Ex. Indian Criminal Law : IPC_376 Under 15 year wife RAPE case, The Nagociable Instrument
Act_ dis Honour of cheque, In civil Law : suit, aplication, apeal & 9 -
The principles upon which laws of Limitation, the court will denied enforcement of
duty when last demand was made. It is enforceable by law to pay the amount. According to
Pothier, upon the presumption of payment or Release ( ) arising from length of time, and
partly also because a debtor should not to be obliged to take care forever of his evidence,
which prove a demand to have been satisfied and it is proper to limit a time beyond which he
shall not be under the necessity of producing them. In the great variety and complexity of the
questions which arise on this subject there are yet some general rules of almost universal
application.
The utility of a Statute Of Limitation has never been a matter of serious doubt or
dispute. It has been said that the statute of repose ( 8 , Trust), peace and justice. It is one of
repose because it extinguishes stale demands, and title. It secures peace as it ensures security
of rights: and it secures justice, as by lapse of time evidence in support of rights may have
been destroyed. There can thus be no doubt that it rests on sound policy.

(( 2 )) # " 0 -" 0 #
( + (
(Actual Damage suffered without legal injury)
‘Damnum’ means damage or injury in the legal sense of the term means legal injury, as
for instance, a tort. Such injuria may or may not accompanied by damnum, i.e. actual loss or
damage. The maxim thus covers actual damage, where there is no infringement of a legal

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 ( 10 )

right. The mere fact of harm or loss does not make the act wrongful in such cases, although the
loss may be substantial, and in some cases, irreparable (means it cannot be rectified). Damage
thus suffered in the absence of the violation of any legal right is referred to as Damnum Sine
Injuria. (
Thus, in order to make a person liable in law, some legal injury must be proved. Actual
damage without such legal injury would not be actionable. There are many acts, which though
harmful, are not wrongful in the eyes of law, and therefore, don’t give a right of action in
favour of the person who suffers such harm.
This maxim is a reflection of the fact that there are many acts which may inflict ( -
.$ ) the most terrible harm, and yet, no legal redress (relief) is available in respect of such
acts. For Example, Dr. A is the only doctor in his neighborhood, and Dr. B decides to open his
clinic just across the same street. Dr. A may suffer a huge financial loss, but he’ll have no
remedy at law, as his Damnum is not accompanied by injuria.
The general principle under this maxim is that exercise of one’s ordinary rights, within
reasonable limits, does not give rise to action, merely because it causes damage to another. If it
were otherwise, it would become almost impossible to carry on the ordinary affairs of life
without doing anything which may cause loss or inconvenience to others. Every act of one
man may, in this sense, cause damage (detriment) to another.

Gloucester Grammar School case : (1410) Y.B. 11. Hen. IV : -

In this case, the defendant, a school-master, set up a rival (competitive) school next to that of
plaintiff, with the result that boys from the plaintiff’s school flocked to that of the defendant.
The plaintiff sued the defendant for the loss thus suffered by him. The court held that no suit
would lie, because bona fide competition can afford no ground of action, whatever damage it
may cause.
= > !? - " # !: " ! !' 9#
" = ' " = ( # ( # ( #
# - _ wind power water mill case
Injuria Sine Damnum : ( - The expression Injuria Sine Damnum is just the
reverse of Damnum Sine Injuria. There are cases where ‘legal injury’ is present, though no
actual loss or damage has been inflicted. The law believes that if there is an infringement of a
legal right, the same is actionable, whether or not any actual loss or damage has been caused. –
as will be clear from the following cases.
injuria sine damno - Injury without damages ( . Whenever there is an
invasion of a legal right, the person in whom the right is vested is entitled to bring an action
and may be awarded damages although he has suffered no actual damage. The law presumes
damage owing to the mischievous tendency of the act and therefore, prohibits it absolutely. In
short, a man is entitled to have his person and property preserved inviolable. Every injury

!
 ( 11 )

imports a damage, though it does not cost the party one farthing; a damage is not merely
pecuniary, but an injury imports a damage when a man is thereby hindered of his right.
(1) Ashby V. White : (1703) 2 Raym Ld. 938
In this leading English case, the defendant, a returning officer at a voting booth, wrongfully
and maliciously refused to register a duly tendered vote of the plaintiff, who was a qualified
voter. The candidate for whom the vote was sought to be tendered was, however, elected and
no actual loss was suffered by the rejection of the plaintiff’s vote. The court held that the
plaintiff had a right to vote and this legal right was violated by the defendant. He would,
therefore, have a remedy at law. The plea that the rejection of the vote did not result in an
injury was not allowed as a defence.
(2) Larzetti V. Williams : (1830) 1 B. & Ad. 415
In this case, it was held that a suit can be filed against a bank, which has sufficient funds
belonging to the customer in its hands, for refusing to honour the customer’s cheque. In such
cases, whether the customer has or has not sustained any actual loss or injury would be
immaterial. Although the customer could not show that he suffered any actual loss, the court
held that he was entitled to damages.

(( 3 )) + + + 4 , ' * "
(the public welfare is the supreme law)
(Regard for the public welfare is the highest law) OR (the good of the people is the supreme
law)
The welfare of the people, or of this public, is supreme law. The maxim is founded on
the implied assent on the part of every member of so-city, that his own individual welfare shall
in case of necessity, yield to that of the community and that his property, liberty, and life, shall
under certain circumstances, be placed in jeopardy or even sacrificed for the public good.
This maxim is of prime importance and lays down that individual welfare must, in
cases of necessity, yield to the welfare of the community. Not only that, but when necessary,
an individual’s property and liberty may be placed in jeopardy- or even sacrificed- for public
good. (Buller J. In Plate Glass co. V. Meredith)
“There are many cases in which individuals- sustain an injury for which the law gives
no action, as where private houses are pulled down, or bulwarks ( 7 23 ) are raised on
property, for the preservation and defence of the kingdom against the king’s enemies”.
Thus, a person would be excused by the law for committing a private injury for the
public good, as when a house is pulled doen to stop a fire from spreading. (Greemwich V.
Moudslay)
Case where the maxim was applied: -
Edginton V. Swidon Borough Council : (1939) 1 K.B. 86
In this case, power was given to a local authority to erect bus shelters, and it was found to be
practically impossible to do so. Without taking away the access of some persons from their

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properties to the highway. The court held that no action would lie against the local authority,
even though the Act had not specified the exact locations of the shelters. When the legislature
gave this power to the local authority, it would have known that such construction would
interfere with private rights of some persons. As the local authority had acted reasonably, no
suit would lie against it.
Case where the maxim was not applied: -
R.Vs. Dudly , Stephens: (1884) 14 Q.B.D. 173
Three seamen, along with a young boy of 18 years, were traveling on a small boat after a
shipwreck. For many days, no food and water were available to them, and if this were to
continue for some more time, they would have died of hunger. So, two of the seamen killed
the boy, so that they could survive on his flesh. Later, they were rescued and brought to
England, where they were tried for murder. Their defence of necessity was ruled out and they
were held guilty of murder, as the court held that though self-preservation is a duty, self-
sacrifice is a higher duty, and since all human lives are equal in value, it is unjustifiable to take
another’s life for self-preservation.
The Andhra Pradesh High Court observed in Special Deputy Collector v. N. Vasudeva Rao
[2003] 12 ILD 342 :
“The maxim ‘salus populi suprema lex’ i.e. ‘the welfare of the people is the supreme law’
adequately enunciates the idea of law. This can be achieved only when justice is administered
lawfully, judicially, without fear or favour and without being hampered and thwarted, and this
cannot be effective unless respect for it is fostered”

(( 5 )) 6 %
! !' ( #
(No one can give what he does not possess) OR (If you don’t have, you can’t give)
‘Nemo dat qoud non habet’ means that “The buyer cannot acquire a better title to the
goods than the seller has. The seller cannot convey to buyer of goods, a better title than the
himself has”. It is a general rule of the Transfer of Property Act. If a person acquires
possession of property by theft and sells it to another, the buyer acquires no title, though he
may have acted honestly and paid the value of the goods, the real owner of the goods is
entitled to recover the possession without paying anything to the buyer. The mere fact of an
innocent and bonafide purchase from a person with no title is no answer to the claim of the
true owner. This rule does sometimes results in hardship to the innocent buyer, but it is
necessary in the larger interests of society and for security of property.
Exceptions: - The rule reflected in the maxim admits of nine important exceptions as uder :-
1. sale with consent or authority of the owner:- if A is the owner of goods B can sell such
goods, if he is authority by A or if A has consented to such sale.
2.title by estoppel :- if B sells goods belonging to A the sale will be valid if A by his words or
conduct causes the buyer to believe that B was the owner of such goods. This is also known as
title by estoppel

!
 ( 13 )

3.sale by mercantile agent:- if a mercantile agent is in possession of goods or a document of

title of goods with the consent of the owner i.e. his principal and he makes a sale of those
goods in the ordinary course of business as mercantile agent the sale would be valid provided
the buyer acted id good faith and had no notice at the time of the sale.
4.sale by a joint owner:- if goods belong jointly to A & B but B has sole possession there of
with A’s consent B can make a valid sale of those goods. Provided that the buyer acts in good
faith and has no notices at the time of the sale that B had no authority to sell such goods.
5.sale by a person having possession under a voidable contract:- if B has obtained possession
of goods form A under a voidable contract but if such contract has not been rescinded B can
sell the goods if the buyer acts in good faith and has no notice of B’s defect of title.
6.sale by a seller in possession:- if A sells goods to B but B allows A to continue in
possession any sale of such goods by A has the same effect as if he was expressly authority by
B to sell the goods, provided the subsequent buyer buys them in good faith and had no notice
of the previous sale.
7.sale by buyer in possession before property has vested in him:- if B has bought or agreed to
buy goods form A and with A’s consent , he has taken possession of the goods ,any sale by B
of such goods to a buyer who buys them in good faith and without notices of any lien or other
right of A over the goods has effect as if such lien or other right did not exist.
8.sale by unpaid seller:- if A has sold goods to B but has not received the full amount of the
price he may resell the goods if B does not pay or tender the price within a reasonable time if
the goods are of a perishable nature or if a has given notice of his intention to resell the goods.
9.sale in market overt:- under English law if goods are sold in market overt according to the
usage of the market the buyer acquires good title to the goods provided he buys in good faith a
without notice of any defect or want of title on the part of the seller.

(( 78 )) " + % %
(It is not obligatory to do anything impossible. OR there is no obligation to impossible thing
or act.)
According to Section-56 of the Indian Contract Act, an agreement to do an impossible
act is void. The impossibility may be prior to contract or subsequent to contract. An agreement
to do an act impossible in itself is void-prior- an agreement to discover the treasure by magic.
Sometimes, the performance of a contract is quite possible when it is made by the
parties. But some event subsequently happens which renders its performance impossible or
unlawful. For instances,
(i) A contract of marriage- one party goes mad afterwards.
(ii) Contract for import of goods-import thereafter forbidden.
(iii) A Singer contract to sing- becomes too ill.
Impossibility of performance may be due to : -

!
 ( 14 )

(1) Destruction of the subject matter (The destroyed subject matters).: - Where the actual
and specific subject-matter has ceased to exist i.e.: music hall destroyed by lighting,
crops destroyed by flood.
(2) Change of circumstances:-Performance will be impossible, where circumstances
arises which makes the performance of the contract impossible in the manner and at
the time contemplated partition of the country.
(3) Non-occurrence of a contemplated event: - i.e. contract to hire room-coronation-
which was postponed
(4) Death of or incapacity of party: - A party to a contract is excused fro performance
if it depends upon the existence of a given person if that person parishes or becomes
too ill to perform. Contract requires personal performance by the promissor his
death or incapacity puts an end to the contract.
(5) Government or legislative intervention: -Where a vender of land could not
execute the sale-deed as he ceased to be the owner by operation of law-cultivator- or
acquisition.
(6) Intervention of war-acquisition of certain thing:- Impossibility must be legal or
physical and not from the point of view of inability of the parties acts upon the
belief so induced and whose position is altered by his belief is entitled to plead
acquiescence-irrespective of the period of limitation.
(( 77 )) 9 "+ 6 ) )
(The thing speaks for itself)
There is a general rule of evidence that a person has to produce proof before he can
receive benefits. In certain cases, the mere fact that a particular accident has taken place may
become prima facie evidence of negligence. Such cases are referred to in Latin as ‘Res Ipsa
Loquitor’.
The application of the maxim has been explained that “Where the thing is shown to be
under the management of the defendant or his servants, and the accident is such, as in the
ordinary course of things, does not happen if those who have the management use proper
care, it affords reasonable evidence, in the accident arose from want of care.”
Thus, if a man’s dead body is found on the railway lines, near a level crossing, having
been apparently run over by a passing train; it is not a proper case for the application of this
maxim. It cannot be presumed, in such case, that persons who cross railway lines are always
careful. Also, if a hammer falls out of a window it could be a case of somebody’s negligence
or even a mischief. But it is not a case of ‘Res Ipsa Loquitor’.
The following are the three essential requirements of the application of the maxim----
(1) The thing causing the damage should be under the control of the defendant or his
servants.

!
 ( 15 )

(2) The accident must be such as would not, in the ordinary course of things, have
happened without negligence.
(3) There must be no evidence of the actual cause of the accident.
It is a general rule that the plaintiff should prove the negligence of the
defendant and not for the defendant to disprove it.
Cases where the maxim was applied: -
Byrne V. Boadle : (1863) 2 H. & c. 722: - In this case, the plaintiff was passing along the
street, and when he came near the defendant’s shop, was injured by the fall of a barrel of flour,
which rolled out of a window on the second floor. There was no evidence on the part of
plaintiff as to how the accident happened, beyond the facts that, while on the road, he was
knocked down by the barrel and was injured. It was held that the accident was a prima facie
case of negligence.
Cases where the maxim was not applied:
(1) Crisp V. Thomas : (1891) 63 L.T.R. 756: - In this English case, the blackboard of a
classroom slipped down and fell, injuring one of the students. It was held that the mere fall of
the blackboard was not evidence of the teacher’s negligence.
(2) Brick falling from the arch: - One essential features common to all such cases is that the
subject matter is under the control of one something happens while it is under control of that
party which would not in the ordinary course of things happens without negligence.
(3) where the defendant’s motor car being left unattended runs down a hill and an injury is
caused to the plaintiff.
(4) A barrel rolled out of open doorway on the upper floor of the defendant’s warehouse and
fell upon the plaintiff, a passerby in the street below.
One essential feature common to all such cases is that the subject-matter is under
the control of one something happens while it is under the control of that party which would
not in the ordinary course of the things happens without negligence.

(( 7 )) 9 4 : : -. #
(The king can do no wrong)
[L. rex / king + non / not, negative + posse, potui / to be able or possible + pecco, peccare / to make a mistake, do
something wrong]
One of the most fundamental principles of the English Constitution is that ‘The king
can do no wrong’. According to Mr. Justice Holmes, “ A sovereign is exempt from suit, not
because of any formal conception or obsolete theory, but on the logical and practical ground
that there can be no legal right as against the authority that makes the law on which the right
depends.” Today, the ground of exemption stated by Justice Holmes appears neither Logical
nor practical, and total immunity of the State from tortuous liability is not acceptable in the
modern context. Therefore, this maxim must not be understood to mean that the king is above
the law, and that whatever he does, is necessarily just and lawful.

!
 ( 16 )

Under Article 361 of Constitution of India, the President, Governors and Rajpramukhs
of states are not answerable to any court for the exercise and performance of the powers and
duties of their office, or for any act done by them in the exercise of those powers and duties.
According to Austin, a subject or citizen can have no rights against the state of which
he is a member. He says that a State has no legal duties by which it can be bound to its
subjects.
Cases where the maxim was applied: -
Kasturilal V. State of U.P. : A.I.R. 1956 S.C. 1039
In this case, Police Officers of the State of U.P. in the exercise of their statutory powers,
seized some gold from Kasturilal. Owing to their negligence in keeping safe custody of the
gold, it could not be returned to Kasturilal. In a suit filed by him against the State for return of
the gold, or its value in cash, the Supreme Court held that the State was not liable. The court
observed that the State was not liable for the tortuous acts of its servants done in the exercise
of sovereign power.
Cases where the maxim was not applied: -
State of Rajasthan V. Vidyawati: A.I.R. 1962 S.C. 933
In this case, the defendant was a driver employed on probation by the State of Rajasthan.
While he was driving a jeep car to a workshop for repairs, he knocked down a person who was
injured, and later died. His widow filed a suit for damages against the State of Rajasthan. The
court held that the State was liable for the tortuous acts of its servants like any other employer,
on the ground that the maxim “The king can do no wrong”, had no place in the Constitution of
India. It was observed that the immunity of the Crown was based on a feudal concept not
accepted or recognized in India.

(( 7 )) 9 + + "
(Let the principal be held responsible)
The two main reason underlying the principles of this maxim are: -
(1) It would generally be very difficult to show that the master had actually
authorized the servant to commit the act in question.
(2) Secondly, the servant would normally not be financially sound to bear the
monetary liability, and a rich master could employ a poor servant to commit
wrongful acts.
This rule has its origin in the legal presumption that all acts done by the servant in and about
his master’s business are done by his master’s express or implied authority and are, in truth the
act of the master. This maxim on the ground of policy and general convenience, puts the
master in the same position as if he had. The loss in such cases is not caused by wrong but by
another’s exercise of legal right.
Cases where the maxim was applied: -
(1) Lambert V. Great Eastern Railway: (1909) 2 K.B. 776

!
 ( 17 )

A Railway Company was empowered to employ special constables. One such constable
arrested a person for felony ( 3), without any reasonable cause. The court held that the
Railway Company was liable for the constable’s act.
(2) Milner V. Great Northern Railway : (1884) 5 L.T.N. 367
A cloak-room in the employment of a Railway Company had to take parcels of the passengers
in the cloak-room to the train as part of his duty. Whilst doing so one day, when he was
coming back, he ran against another porter, who in turn dashed against the ticket collector, and
the ticket collector collided ( 0- ) with the plaintiff’s wife, causing injuries, which resulted
in her death. When the plaintiff sued the Railway Company, it was held that the Company was
liable in damages, as, at the time of the accident, the clerk was acting within the scope of his
employment.
The superior must be responsible or let the principal be liable. In such cases not only
he who obeys but also he who commands becomes equality liable. This rule has its origin in
the legal. Presumption that all acts done by the servant in and about his master’s business are
done by his master’s express or implied authority and are in truth. The act of the master. This
maxim on the ground of police and general convenience puts the master in the same position
as if be had. The loss in such cases is not caused by wrong but by another’s exercise of legal
right. Chas more vs. Richards interception of under ground percolating water.
Cases where the maxim was not applied: -
Deatons Proprietary Ltd. V. Flew: (1949) 79 C.L.R. 370
In this case, X entered the defendant’s hotel and spoke to a barmaid (woman serving in a pub
etc.), who threw a glass of beer on his face. According to X, he had asked her a polite
question, but the barmaid said that he had insulted her. When the matter went to court, it was
held that although the barmaid was liable, the owner of the hotel was not liable, as the
barmaid’s act was an independent personal act which was not connected to the work which she
was employed to perform.

(( 7. )) " ; 4 '" & 4

,/ 01 + " ,
(Ignorance of fact is an excuse, ignorance of law is not an excuse)
This maxim is recognized by every legal system. Ignorance may be either of fact or of
law. For example, if an heir is ignorant of the death of his ancestor, he is ignorant of that fact;
but if being aware of the death, and of, his own relationship with the ancestor, he is
nevertheless ignorant of those rights that have thereby become vested in him; he is ignorant of
the law.
Mistake is not mere forgetfulness. It is a slip made, not by design but by mischance.
Under English Common Law, an honest and reasonable belief in the existence of
circumstances which would have made that act an innocent act, has always been a valid
defence. Under Section-76 of the Indian Penal Code- “Nothing is an offence which is done by

!
 ( 18 )

a person who by reason of mistake of fact and not by reason of mistake of law, in good faith
believes himself to be bound by law to do it.”
When mistake of fact is no defence: - It is not a defence if the fact itself is illegal. One
cannot do an illegal act and then plead ignorance of a fact.
Why mistake of law is not an excuse: - The basic reason for not excusing a mistake or
ignorance of law is that every man is presumed to know the law of the land, if mistake of
law was to be allowed as a defence, it would be urged in almost every case and lead to
absurd results.
When mistake of law is excused: - Under Section 78 Of Indian Penal Code, total
ignorance of the law is no excuse, but a mistaken interpretation of the law can be
considered a good excuse. A mistake of foreign law is considered as a mistake of fact
because though everyone is supposed to know the law of his own country, he cannot be
expected to know the law of other countries. This is, however, not so in the field of
criminal law.
Cases where the maxim was applied: -
Tolson’s case: (1889) 23 Q.B. 168
Mrs. Tolson, who had been deserted by her husband, and had married again within seven years
of desertion, was held not guilty of the offence of bigamy, because she had believed, on
reasonable grounds, that her husband had died (which was mistake of fact), and her act of
getting married could not be regarded as an act which was illegal per se ( & 9).
Cases where the maxim was not applied: -
It was held, in this case, that a person, who kidnaps a girl under the legal age of consent i.e. 18
years, is guilty of kidnapping even though the girl might have urged the accused to take her
away from her parents, and she lied about her age and even appearing to be more than 18, the
accused was held guilty, as the girl’s consent was immaterial, she being a minor. In such cases,
the accused must take the risk of having involved himself with a minor, which is an act mala
in se (bad in itself). Thus, in such cases, ignorance of fact does not excuse.

(( 7/ )) " & 9 : 4 +
" 2 3 + " )#
(In law, the proximate cause ( : is considered and not the remote cause ( 0 ).

The damage suffered by the plaintiff must be the direct and natural cause of the
defendant’s act. These teach us law as to remoteness of damage. The law will permit no
damages to be recovered excepting such as are the natural and legal consequences of a
wrongful act. In law the immediate and proximate, not the remote cause must be considered. A
man is presumed to intend the natural, but not the remote consequences of his act. A man is
not liable for all consequences of his wrongful act or default. Where the casual connection

!
 ( 19 )

between the wrongful act and the injury is not sufficiently direct, there is no liability, for the
damage is too remote.
Under the law of Contracts, no compensation can be recovered for any remote or
indirect loss or damage sustained by a breach of contract.
Under the law of Torts, when a plaintiff sues on the ground of negligence, he must
show that the defendant was under a legal duty to exercise due care and skill towards
him—which he did not exercise. However, he must also show that the breach of such
duty was the causa causans ( %& ), i.e. the direct and proximate cause of his loss or
injury. If the connection between the negligent act and the damage suffered is not direct,
the damage is too remote, and the plaintiff cannot succeed. If an accident is partly caused
by the interference of a third person, the defendant will be responsible only if it is found
that his negligence is the effective cause of the accident.
Cases where the maxim was applied: -
9 < ' 7. = > < .21 ' ?
( ; 6 ). When the ship was being loaded, it was damaged by negligent
loading of cargo by the natives of Africa, and since it was pronounced unseaworthy, it was run
ashore to prevent it from sinking and to save the cargo. In the circumstances, the court held
that the maxim, “In Jure Non Remota causa sed Proxima Spectatur”, would apply. The
immediate cause of the loss, i.e. the stranding of the ship, was a peril of the sea.
Cases where the maxim deos not applied: -
Lord bacon’s case: - In this case, the maxim does not apply in criminal matters, as will be
clear from the following example. A, intending to kill B, fires a gun at him, but misses. So, he
throws down his gun and runs away. B, however, runs after him in order to kill him.
Thereupon, A takes out a dagger and stabs B, resulting in B’s death. In this case, if only the
immediate cause is to be taken into consideration, A may go scot-free, as his act would be
justified as being in self-defence. But the law would look beyond the immediate cause, and
when the remoter cause is seen, would be guilty of murder, having done an act in execution of
his earlier murderous intentions.

(( 71 )) , " % : %
% & ' ) , + !4
(The burden of proof lies upon him who asserts not upon him who denies)
(EVI. ACT SEC.101-102)
The burden of proof means the duty of proving a disputed assertion (declaration) or
charge. The most important canon (principle) of evidence is that the point in issue is to prove
by the party, who asserts the affirmative. When a person is bound to prove the existence of any
fact it is said that the burden of proof lies on that person. The expression burden of proof really
means two different things.

!
 ( 20 )

(1) It means that a party is required to prove an allegation (unproved, assertion) before
judgment can be given in his favour.
(2) It also means that on a contested (dispute) issue, one of the two contending parties has
to introduce evidence.
There is a difference between the burden of proof on the pleadings and the burden of adducing
evidence.
The burden of proof on pleadings depends upon the facts asserted of denied and is
determined by ruled of substantive or statutory law. Such a burden never shifts.
While burden of adducing (proof, evidence) evidence shifts-in case of admission by
defendant, but alleging another thing e.g. receiving of money but paid.
The burden of proof on pleadings is fixed on the basic of the pleadings and is unchanged
during the entire trial.
Whereas the burden of adducing evidence is not constant but shifts as soon as the party
adduces sufficient evidence to raise a presumption in his favour.
The burden of proof lies upon the party, whether plaintiff or defendant who substantially
asserts the affirmative of the issue. The reason is partly, that he who invoke the aid of the law
should be the first to prove his case and partly because in the nature of things a negative is
more difficult, if not impossible, to establish than an affirmative.
The expression burden of proof really means two different things. It means sometime that a
party is required to prove an allegation before judgment can be given in his favor. It also
means that on a contested issue, one of the two contending parties has to introduce evidence.
There is a difference between the burden of proof on the pleadings and the burden
of adducing evidence. The burden of proof on pleadings depends upon the fact asserted or
denied and is determined by rules of substantive or statutory law. Such a burden never shifts
while burden of adducing evidence shifts-in case of admission by defendant, but alleging
another thing. e.g.- receiving of money but paid. The burden of proof on pleadings is fixed on
the basic of during the entire trial, whereas the burden of adducing evidence is not constant but
shifts as soon as the party adduces sufficient evidence to raise a presumption in his favors.

(( 72 )) # % : : #
! ' . - (
(No one must be punished twice for the same offence) OR ( No one should be punished twice
for one fault )
No one aught to be punished twice for the same offence double jeopardy. Once a
person id acquitted by a court of competent jurisdiction he can’t be charged or tries again on
the same facts. Once he is acquitted he can’t be tried again for his case been determined and he
has been found not guilty and acquitted. The same principal applies to conviction.

!
 ( 21 )

This maxim is embodied in article 20 of the Constitution. It means that a man must
not be put twice in peril for the same offence. If a man is indicted again for the same offence
in an English court, he can plead, as a complete defence, his former acquittal or conviction, or
as it is technically expressed, take the plea of autrefois acquit or autrefois convict
Once a person is acquitted ( ) by a court of competent
jurisdiction, he cannot be charged again on the same facts. Once he is acquitted, he cannot be
tried again, for his case been determined and he has been found not guilty and acquitted. The
same principle applies to conviction.
Article 20(2) of the Constitution Of Indian says that no person shall be prosecuted and
punished for the same offence more than once. But before any one can claim the punishment
of acquittal before a judicial tribunal. An earlier prosecution and punishment must be to/for an
offence-an act forbidden by law and punishable by way of fine, imprisonment or death. The
prosecution must be before a court of law or judicial tribunal in accordance with the procedure
prescribed by the statute which creates the offence.
Under the American Law, the principle is known as that of protection from double jeopardy.
The Fifth Amendment to the Constitution Of U.S.A. provides that no person shall be subject
for the same offence, on the same facts, to be twice put in jeopardy of life or limb.
The English Common Law also provides that rule Nemo Debet Bis Vexeri-means that a man
may not be put twice in peril for the same offence.
Section -26 of the General Clauses Act also operates as a bar against double punishment.
Section -300 of Criminal Procedure Code, this rule is incorporated.
The ambit and content of guarantee under our constitution is narrower that Common Law and
American Constitution. In the American system, the constitutional bar applies to the second
prosecution irrespective of the result of the first prosecution.
The object of Res Judicata is also founded on this maxim-Nemo debet Bis vexari Pro Una Et
Eadem cause- no man should be vexed ( ) twice over the same cause.
The bar which law impasses on subsequent litigation is created by the existence of a previous
judgment whereby the matter has once already fully canvassed and finally decided between
the parties by a competent court. By the general law, where a material issue has been tried and
determined between the same parties in a proper suit, and in a competent court, it cannot be
tried in another suit between them.

(( 73 )) -

The maxim is based on the principle that the justice should not only be done but should
manifestly be seen to be done. This could be possible only when a judge or an adjudicating
authority decides the matter impartially and without carrying any kind of bias. Bias may be of
different kind and form. It may be pecuniary, personal, or there may be bias to the subject-
matter etc. [Amar Nath Chowdhury v. Braithwaite & Co. [2002] 111 Comp. Cas. 707 (SC)]

!
 ( 22 )

This maxim applies only when the interest attributed is such as to render the case his own
cause. This principle applies not only to the justices but also to all tribunals and bodies which
are given jurisdiction to determine judicially the rights of parties. ' 0 0 @AB
- ( + 6 -

(( 75 ))
– .' / +
(Where both parties are equally in fault, the condition of the possession is the best.)
This maxim has much relevance to the money paid by mistake and the refusal
to refund resulting in the unjust enrichment. The money may not be recoverable if in paying
and receiving it the parties were in pari delicto. Tax paid under mistake of law is refundable.
A person is entitled to recover money paid by mistake or under coercion, and if it is
established that the payment, even though it be tax, has been made by the person labouring
under a mistake of law, the party receiving the money is bound to repay or return it though it
might have been paid voluntarily, subject, however, to questions of estoppel, waiver,
limitation or the like. The person and the Government in paying and receiving are not in pari
delicto; and, therefore, the aforesaid person is entitled to recover the amount. The amount does
not become recoverable if in paying and receiving both the payer and the recipient are in fault,
i.e., they are pari delicto. Where each party is equally in fraud, the law favours him who is
actually in possession, or where both parties are equally guilty, the estate will lie where it was.

( 8) +

Nemo Contra Factum Suum Venire Potest is a Latin maxim which means ‘no one can go
against his own act’. When an act has once been performed, which is binding on the actor,
s/he cannot at will depart from that act or do anything contrary to it. Thus if one has submitted
a question to arbitration s/he cannot resile there from. S/he cannot validly do anything to
prevent the submission proceedings. An agent who enters into a contract on behalf of his
principal cannot subsequently depart from his contract on the ground that he had no authority
from the principal to enter into it. That might be a good defence in the mouth of the principal,
but would not be available to the agent.

( 7) 4 " 05 3 #
(The law takes no account of trifles.)
Sec. 95 of the I. P. C. lays down that an act is not an offence if the
harm resulting from it is so slight that no man of ordinary sense and temper would
complain of it.
There are innumerable acts, without performing such acts men cannot
live together in society. Acts which all men constantly do and suffer in turn and
which it is desirable that they should do and suffer in turn and which such acts
ought not to be treated as crimes. It is theft to dip a pen in another man's inkpot,
mischief to crumble one of his wafers are trifles of which law takes no account.
They are so minute that no person of ordinary sense and temper would
complain of it.

!
 ( 23 )

( )@ + - "
Under the contract of sale there is no implied condition or warranty as to quality or fitness of
goods supplied for any particular purpose. The buyer buys on his own judgement and skill if he
selects the specific goods he requires. Also where the goods are inspected by the buyer without
any fraud on the part of the seller, the maxim applies even though the defect which exists in
them is latent and not discoverable on examination. Thus, if the buyer depends upon his own
skill and integrity and the goods turn out to be defective, it is his own fault and it is not the duty
of the seller to point out the defects in the goods he is selling.
The principle of Caveat emptor lays down that---
( 1) Where the contract is for sale of a specified article under its patent or other trade name, there
is no implied condition as to its fitness for any particular purpose.
(2) Where the buyer has examined the goods, there shall be no implied condition as regards
defect Exceptions to the rule of Caveat emptor The rule of Caveat emptor does not
apply where there is an implied warranty or condition as to the quality or fitness.

1. Where the buyer expressly or by implication makes known to the seller the particular purpose for
which the goods are required, there is an implied condition that the goods shall be reasonably fit for
such purpose.

2. Where the goods are bought by description from the seller who deals in goods of that description;
[whether he be the manufacturer or not], there is an implied condition that the goods shall be of
merchantable quality. But if the goods are examined by the buyer there shall be no implied condition
as regards defect.

( ) # + +

The Indian constitution, though a federal constitution has not adopted the doctrine of
separation of powers, unlike the American Constitution.
The state legislature under the Indian Constitution is not a delegate of the Union
Parliament. Both legislatures derive powers from the same constitution. Since both the Union and
the State legislatures derive their respective powers from the same constitution, one cannot by
delegation of subjects clothe the other, with the legislative capacity to make laws on that subject.
Hence, the Union legislature cannot delegate or transfer its powers to the State legislatures and
vice versa.
The Supreme Court has held that the Legislature cannot delegate its essential functions
which have been entrusted to it by the Constitution.
The essential legislative functions are the determination of the legislative policy and
its formulation. In other words, it cannot delegate to another agency the exercise of its judgement
on the question as to what the law should be. The Administrative Law of India does recognise the

!
 ( 24 )

principle of delegated legislation. The power to frame rules not altering or modifying the basic
policy of law can be conferred Qn the Executive.
( .)
( Where both parties are equally to blame, neither can hold the other liable. )
Contributory negligence is negligence in not avoiding the consequence arising from
the negligence of some other person, when means and opportunity are afforded to do so. It is the
non-exercise by the plaintiff of such ordinary care, diligence and skill, as would have avoided the
consequences of the defendant's negligence The doctrine of contributory negligence rests upon
the view that though the defendant has been in fact negligent, yet the plaintiff has by his own
carelessness served the causal connection between the defendant's negligence and the
accident which has occured; and that the defendant's negligence accordingly is not the
true proximate cause of the injury. The doctrine is founded upon the maxim - ' in jure
non remota causa sed proxima spectatur' The law takes into consideration any act or
conduct of the party injured or wronged which may have immediately contributed to
that result. And one who has by his own negligence contributed to the injuiry of which he
complains cannot maintain an action against another in respect of it for he will be considered
in law to be the author of his own wrong, But Lord Halsbury is of the opinion that this
doctrine is merely a special applicatibn of the maxim "in pan i delicto poitor est conditio
defendantis " ( Where both parties are equally to blame, neither can hold the other liable. )
Where the plaintiff so far contributes to the misfortune by his own negligence or
want of ordinary and common care and caution, he is not entitled to recover.
There is no rule of law that a person riding or driving in the dark must be held to be
negligent if he is driving at such a speed that he is not able to pull up within the limit of his
vision.
Contributory negligence, to afford a defence must be that of the plaintiff
himself or of his servants, whom he has selected from his knowledge or belief in their
care or skill, the contributory negligence of a third person, not being the servant of the
plaintiff, will not suffice. The defence of contributory negligence has no place in suit
brought for damages on account of an intentional wrong.
The onus of proving affirmatively that there was contributory negligence on
the part of the person injured rests, in the first instance upon the defendants, and in the
absence of evidence tending to that conclusion, the plaintiff is bound to prove its non
existence. If the Court finds itself unable to discover the extent of negligence of the plaintiff
or that of the defendant who contributed to bring about the accident, the defendant is
entitled to succeed, for in pan i delicto poitor est conditio defendantis.
When contributory negligence is set up as a defence, its existence does not depend
on any duty owed by the injured party to the party sued and all that is necessary to establish
such a defence is to prove to, the satisfaction of the Court that the injured did not in his own
interest take reasonable care of himself and contributed, by that want of care to his own
injury.
( /)
! "

!
 ( 25 )

Whoever does any act, whether negligently or not, whereby damage is done to property of another,
is held responsible for it Holt, C, J, laid down the strict principle of law sic utere tuo ut alienum
non loedas ( every one must so use his own as not to do damage to another ). An improper use by
one man of his land, that is a use in excess of his rights, may cast an additional burden on to his
neighbour. and there by curtail the later's legitimate enjoyment of his property or cause him grave
personal inconvenience; or even danger. The plaintiff must show not only that he has sustained
damage, but that the defendant had caused it by going beyond what was necessary in order to
enable him to have the natural use of his own land If the plaintiff only shows that his own land is
damaged by the defendant using his land in the natural manner he cannot succeed.
If an alteration is made in the normal stage of things, calculated to cause injury to a
neighbour, an obligation is cast upon the person who makes such an alteration to protect his
neighbour from injury ; the liability of an occupier on whose land such an alteration has been
made would be absolute unless the case falls within one of the exceptions or the liability is
excluded or limited by statute.
An occupier is liable for the escape of fire caused by the negligence not only of his
servant but also of his independent contractor and one who is on his Land with leave and licence.
The maxim applies in day to day activities of man. It regulates every day human affairs and is
based on common sense; rules of safety and precautions.
(26) A Discussion on Law of Double Jeopardy in India
The principle of double jeopardy as enshrined in Article 20(2) of the Constitution of India,
Section 300 Cr.P.C, Section 26 of the General Clauses Act, and Section 71 I.P.C lays down foundation
for the plea of autrefois acquit and autrefois convict. The pre-requisite for the rule of double jeopardy
to come into play is that the accused should have been tried for the same offence on an earlier
occasion. The second prosecution must be for the same offence. The ingredients of the two offences
should be identical. If the offences are distinct the embargo placed by the doctrine of double jeopardy
will not be applicable. The doctrine of double jeopardy does not bar prosecution for the same offence
under different sections of the same act or under different acts.

The pre-condition for double jeopardy rule to be applicable is that the second
prosecution must be for the same offence. The ingredients of one offence should be same as the
ingredients of another offence. To determine whether the second prosecution is hit by the rule of
double jeopardy the emphasis has to be on the ingredients of both the offences and not the allegations.
If the ingredients of both the ffences are different, then notwithstanding the rule of double jeopardy the
subsequent prosecution is not hit by double jeopardy even if the allegations are same. Principle of
double jeopardy does not bar rosecution under different sections of the same act or different acts.
However, if the offence falls under two different sections, the sentencing power of the court is
circumscribed by s.71 IPC to impose a sentence which does not exceed the maximum sentence which
the court could award for any of those offences. Going by your statement of facts, if the investigation
in relation to the first complaint has not been completed yet, the trial has effectively not started.
Therefore, there is no double jeopardy.

DOUBLE JEOPARDY IN FAMILY LAWS?

Article 20 (2) of the constitution of India states " NO PERSON SHALL BE PROSECUTED AND
PUNISHED FOR THE SAME OFFENCE MORE THAN ONCE." Similarly Sec. 26 of the General
clause Act 1897 says: Where an act or omission constitutes an offence under two or more enactments,

!
 ( 26 )

then the offender shall be liable to be prosecuted and punished under either or any of those
enactments,but shall not be liable to be punished twice for the same offence.
The question is : Is a simultaneous prosecution under Section 20 (1) (d) of Protection of Women from
Domestic Violence Act-2005 and also U/S 125 Cr.P.C. contrary to the aforesaid Article of the
Constitution 20(2) and also to Sec. 26 of General Clause Act 1897.
An expert said that "First of all please note that proceedings under SEc.125 is not criminal prosecution
at all. It is for claim of maintenance. Therefore in your case doctrine of double jeopardy has no
application at all.. "From the womb of this reply another question came out that if section 125 CRPC
is criminal case if we read it's prefix (CRPC) but its run in family court, when we look into Indian
Constitution article 20(2) does not mention anything like CRIMINAL or NONCRIMINAL but they
talk about "PROSECUTED AND PUNISHED FOR THE SAME OFFENCE MORE THAN ONCE."
But to the contrary Sec. 26 of General Clause Act 1897 " the offender shall be liable to be prosecuted
and punished under either or any of those enactments" by reading this above line its is indirectly
implies Criminal prosecution "offender " so I would like to still go ahead and ask the same question.
Once CRPC 125 case trial completes and gives judgment awarding amount XXXX to petitioner, how
can the same petitioner asks for the same relief of XXXX amount because of the same offence again
under DVC ACT? Why Is this not called "Double jeopardy" ? Really it is a "Double jeopardy" hit by
article 20(2) of constitution of India and section 26 of the General clause Act 1897.
ABSTRACT This paper traces the shifting contours of double jeopardy in India and how it
evolved from procedural criminal law top being a constitutional right. The paper would have in-depth
analysis of judicial pronouncements on the limits and boundaries of doctrine of double jeopardy and
would try to sensitize readers alien to Indian laws on the variations present in Indian system in this
near universal doctrine that a man should not be punished twice for one crime.

Constitution of India - Double Jeopardy

DOUBLE JEOPARDY – A GURANTEE AGAINST MISCARRIAGE OF JUSTICE :

The term "double jeopardy" refers to the "danger" of a second punishment whenever an individual
is brought to trial again for the same crime (or a greater or lesser included crime). This means that there cannot
be a second prosecution for the same criminal act (both in fact and in law) upon which a first prosecution was
based. The accused must be released and the case dismissed. The challenge is determining what constitutes the
"same" crime for double jeopardy purposes. Some of the simpler examples include:
• an acquittal or conviction for murder will bar any prosecution for manslaughter if based on the same facts
(lesser included example)
• an acquittal or conviction for larceny-theft will bar any prosecution for robbery if based on the same facts
(greater included example)
• an acquittal or conviction for burglary will bar any prosecution for robbery (even if the burglar woke up the
sleeping couple and robbed them) unless there are distinct elements in one crime that are not included in the
other (multiple criminal transaction example).
• an acquittal or conviction for R.I.C.O. will bar any prosecution for conspiracy or attempted R.I.C.O.
(continuing crime example)
• an acquittal or conviction for battery will not bar any later prosecution for murder if the victims later dies as a
result of injuries (separate and distinct new crime example)
ANALYSIS OF DOUBLE JEOPARDY IN INDIAN CONSTITUTION Art . 20 (2 ) which runs as “ No person
shall be prosecuted and punished for the same offence more than once “ contain the rule against double
jeopardy .
The principle was in existence in India even prior to the commencement of the Constitution , but the
same has now been given the status of a constitutional , rather than a mere statutory , gurantee .
Both Prosecution and Punishment should co-exist for Article 20 (2) to be operative . A prosecution without
punishment would not bring the case within Art 20 (2 ) . If a person has been prosecuted for an offence but
acquitted , then he can be prosecuted for the same offence again and punished .
Ex- a person was prosecuted and punished under S.161 I.P.C . On appeal , the High Court quashed the trial

!
 ( 27 )

holding it void ab- initio as no sanction for the same had been obtained under the law . Art 20 (2 ) would not bar
a second trial for the same offence , as the accused had not been prosecuted and punished fot that offence .
Enhancement of punishment by the revising authority does not amount to a second punishment . Preventive
Detention is not ‘prosecution and punishment’ and , therefore , it does not bar prosecution of the person
concerned . Prosecution has no fixed meaning and is susceptible both of a wide and a narrow meaning . But as
used in Art 20 (2) it embodies the following
THREE ESSENTIALS :
a) There must be a person accused of an offence . The word “offence” has to be taken in the sense in which it is
used in the General Clauses Act , 1897 as meaning ‘an act or omission made punishable by any law for the time
being in force’
b) The proceedings should have been taken before a ‘court’ or ‘judicial tribunal’ . The revenue authorities , like
the sea customs authorities , are not judicial tribunals . . Likewise proceedings before a tribunal which entertains
departmental or administering enquiries
c) cannot be considered as proceedings in connection with proceedings in connection with prosecution and
punishment .
d) The proceedings should have been taken before the judicial tribunal or court in reference to the law which
creates offences . Thus , where an enquiry is held before a statutory authority against a government servant , not
for the purposes of punishing for the offence of cheating and corruption but to advise the government as to the
disciplinary action to be taken against him , it cannot be said that the person has been prosecuted . It would
make no difference even if the enquiry is required to act judicially
DOUBLE JEOPARDY FOLLOWED IN OTHER COUNTRIES:
1.Australia 2.Canada 3.Europe 4.Germany 5.United Kingdom 6. USA

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* ' -Mr. A, a Talathi of a village is put up for a trial for an offence under section
409 of the IPC. The prosecution case against him is that he failed to send to the Government
treasury an amount of Rs. 5 out of the amount he had collected as land revenue. An offence
under Section 409 is non-bailable offence. The accused is an old man of 52, and comes of a
respectable family. He has been arrested and is an under trial prisoner.
Draft an application for bail on his behalf, you may choose your own set of facts. Such
as the court in which he is being put up for trial, the name of the accused and other necessary
details.
ANS: -
BAIL APPLICATION

IN THE COURT OF THE JUDICIAL MAGISTRATE F.C., SURAT

CASE NO. 111/2013
STATE OF GUJARAT ………..Complainant
V/S
Mr. A ………….Accused
Sub: -Application for bail under section 536 of Cr.P.C.

It is submitted on behalf of the above named accused as follows: -

(1) The accused was arrested by the Varachha Police Station on 2nd April, 2013 under
Section 409, IPC and is in police custody for last 10 days.
(2) The main allegation of the police is that the accused who is a Talathi of the village Mota
Varachha in the capacity of public servant has failed to account for a paltry (worthless,
) sum of Rs. 5 to the Government treasury, and has hereby committed criminal
breach of trust.
(3) Although the offence is a non-bailable one considering such a small amount involved, it
is highly improbable that he would ever think of misappropriating such a paltry sum,
there must be some honest mistake on the part of the accused concerned which can well
be attributed of his old age.
(4) The accused is a respectable family man and is a resident of the said village having
immovable property of his own and he is not likely to abscond (
(5) Under the above circumstances it is requested that the said accused may be released on
bail and the accused is ready and willing to give such surety as the court would be
pleased to order.
(6) And for this act of kindness the accused as in duty bound shall ever pray.
PLACE: SURAT
Date.: 16th December, 2013. Sd.
(Advocate for Accused)

!
 ( 56 )

( ) ,++ B . 2(7) @ :@
' "F" ' >

1. A person may be accused of a Bailable or a Non Bailable offence. In case of a

bailable offence, the accused has a right to secure his release by applying for bail
under S. 436(1) of Cr P C, while in case of non-bailable offence, the accused may be
released by the court on its discretion after he applied for bail under S. 437(1) of Cr
P C. In case of a bailable offence, if the accused in indigent, he may be released my
executing a personal bond without sureties.
2. The application for bail is made to the court in which the accused is tried (that
depends on the offence). However, S. 439 gives special powers to HC and Court of
Session to release a person on bail (after imposing certain conditions), and so an
application may be made to HC or Court of Session as well if the person is under
arrest.
3. No Verification, Notary, and Affidavit required.

Before the Judicial Magistrate Ist Class at Surat

Criminal Misc. Petition No ....../2009
in
Crime No. 1234 / 2009
(or Criminal Complaint No 1234/2009)
A. B. s/o B. C.
age 30 yrs
resident of 123, A B Road, Surat, ......................................... Petitioner/Accused

vs

State of Gujarat
through Station House Officer,
Police Station, Katatgam, Surat ......................................... Respondent/Prosecution
(or M. N. s/o N.O.
resident of 222 AB Road, Surat ......................................... Complainant)

Application for Bail under under S. 437(1) of Cr P C

The aformentioned accused/applicant begs to state as under:-

1. That the accused is facing trial before this Hon'ble Court in case titled as State of
MP vs A.B. for the offence under Sections 323 and 325 of IPC.

!
 ( 57 )

2. That this Hon'ble court was pleased to issue a Warrant and the Police has
accordingly arrested the accused/applicant.
3. That the accused was not at all involved in the crime alleged in the said case.
4. That the accused is a permanent resident of Surat and earning livelihood by working
as a fruit vendor in trains.
5. The accused has his old parents dependent upon him and the accused is the only
bread earner for the family.
6. That by getting the accused/applicant arrested the accused has been deprived of his
valuable fundamental right of liberty by abuse of powers and process of law by the
complainant.
7. That the accused is willing to furnish surety and bail bonds to the satisfaction of this
learned court in case he is ordered to be released on bail.
8. That the accused will abide by all the conditions as imposed by this Honourable
Court.

It is, therefore, most respectfully prayed that this application for bail may kindly be
allowed in the interest of justice and the accused be released on bail upon such conditions a
this Honorable Court may deem fit.

Surat
10/11/2009 Through, Advocate

( )# , ? " 0 ++
+
IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE at SURAT
Civil Suit No. 91 of 2012
PARMANAND GANESHNAND OJHA
Room No. 12, Maruti Colony,
SURAT. …….Plaintiff
V/S
KARUNBABU RAMBABU KANANI
Room No. 19, Bomaby Colony,
SURAT. ……..Defendant
Sub: - Application for Ad-interim Injunction (easement of light and air)

(1) The above named plaintiff submits by this application as under that ----
(2) The plaintiff has filed a suit for declaration and injunction against the defendant claiming a
right of easement of light and air peaceably enjoyed for continuous period of 20 years and
more through the window on this western side of the plaintiff’s house.
(3) The defendant is contemplating ( ! " # ! ) to erect a wall on the
western side of the house belonging to the plaintiff and obstruct the light and air enjoyed
by the plaintiff for the last 20 years and more.

!
 ( 58 )

(4) The plaintiff is likely to put to an irreparable loss by the erection of the wall by the
defendant. It is therefore in the interest of justice that the defendant may be restrained
( "$ " % ! ) from committing the contemplated injury to the plaintiff
and the status quo should be maintained during the pendency (pending, $ ) of the
suit.
(5) The plaintiff has filed the necessary affidavits of his neighbours and his own affidavit
swearing ( & &' () that A has enjoyed light and air for 20 years without
interruption (! *) " + ) from the window in the room on the upper storey
(floor).
(6) The plaintiff therefore prays that the defendant may be restrained from creating the wall
on the western side during the pendency of this suit.
Sd. Sd.
PARMANAND GANESHNAND OJHA Plaintiff’s Advocate

(4) A Plaint in a Civil Suit : for Specific Performance of Contract

' "F" ' >As per Order VI (Pleading) and Order VII (Plaint) CPC, Every
plaint must contain the following things:

a. Name of the court

b. Name and details of the Parties
c. If the plaintiff or the defendant is a minor/insane, a declaration to that effect
d. facts of the case - ( )
e. facts constituting cause of action and when it arose
f. a statement about the value of the subject matter for the purpose of
jurisdiction and court fees.
g. facts showing that the court has jurisdiction (territorial as well as pecuniary)
h. Relief prayed
i. Description of the set-off (if claimed)
j. Verification

Although there is no special rule for this but general convention seems to be that, in the
title of a suit, the word "Respondent" is used in Original civil suit while the
word"Defendant" is used in applications made to - appellate court or supreme court.
IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE at SURAT

Civil Suit No. ………… / 20…….

A. B. s/o B. C.
123, A B Road, Surat, ......................................... Plaintiff

!
 ( 59 )

Vs.

M. N. s/o O. P.
456, A K Road, Surat, ......................................... Respondent

Suit for Specific Performance of Contract to sell a residential plot

The plaintiff respectfully states as follows : -

Inducement:
(1) Plaintiff is a Govt. Servant working in Surat, MP. and so on
(2) Respondent is a property broker having an office at ...

Material Facts of the case:

(3) The plaintiff agreed with the respondent on 10 Aug 2008 to purchase the Plot No 123 at
Rani Bagh Colony, Surat. A copy of the contract is attached with the petition.
(4) The boundaries of the plot is as under:
East: Road
West: Plot number 124
North: Road
South: Colony wall
(4) The total value of the plot to be paid by the plaintiff to the respondent, as agreed upon
in the contract, is Rs. 40,000/-.
(5) The respondent accepted a payment of 10,000/- though Check No. 123 of SBI, Surat
Branch at the time of making the contract and promised to do registry upon payment of
remaining amount of 30,000/-
(5) The plaintiff tried to pay the remaining amount on several occasions by cash as well as
check but the respondent refused to take the payment.
(6) The plaintiff also sent a notice about the same to the respondent on 10/10/2009.
(7) The plaintiff is ready to pay the remaining amount of Rs 30,000/- but the respondent is
not willing to transfer the said plot.

Cause of Action and Limitation

(8) The cause of action for the present suit first arose on 10/10/2009, when the respondent
refused to convey the said property as per the terms of the agreement and hence, the suit
filed today is within time.

Valuation:
9 The suit is valued for the purpose of jurisdiction and court-fee at Rs. 30000/-.

Jurisdiction:
(10) The plot is located in Surat, which is within this court's territorial jurisdiction.

(11) The value of the contract is 40,000/- which is within this court's pecuniary

!
 ( 60 )

jurisdiction.

Relief Claimed:
(12) The plaintiff, there fore prays that

1. the court be pleased to order the respondent to perform his part of the contract by
accepting the remaining payment and conveying the said plot to the plaintiff.
2. the plaintiff be permitted to deposit the balance of consideration in this Hon'ble
Court.
3. the respondent be ordered to pay compensation for mental harrasment, loss of
wages, and cost of this litigation.

Place: …………………. (Signature of the plaintiff)

Date: …………………..
YYY
Advocate

Verification

I, ______, do hereby solomnly verify that the contents from paras 1 to 4 are correct and
true to the best of my knowledge and contents from para 5 to 12 are based on legal advice,
which I believe to be correct. Affirmed at Surat this 4th Day of September 2009.

(Signature)
Plaintiff

(/) 38 @ : @ - 7583
Notice: Registered A.D & Speed Post.
Advocate
Mr. Ashvin B. Prajapati
Resident of 96, Gita Nagar Society,
SURAT.
Date: 16-12-2013
To,
The General Manager,
Central Railway,
Bandra Terminal,
Surat-395 006.
SUB: - Notice under Section 80 of C.P.C., 1908.
Dear Sir,

!
 ( 61 )

I, do signature hereunder Advocate, Mr. Arvind K. Shah, under instruction of my

client Mr. Rameshkumar J. Patel, Aged about 30 years, Resident of 10, Jivandeep Society,
Varachha Road, SURAT, I write a Notice to you that: -
(1) My client’s office in MUMBAI had booked a Consignment in favour of my client at
SURAT by the Central Railway.
(2) When my client made inquiries on 1st October, 2013 at the Sardar Railway Station he
was informed that the Consignment would be release to him only on payment of sum of
Rs. 5,000/- while according to my client, it was totally illegal and without the authority of
law.
(3) As the Parcel Office at the Sardar railway Station refused to deliver the Consignment to
my client, if the said amount was not paid. My client paid a sum of Rs. 5,000/-under
Protest and without prudence to his legal right in the matter. A photo copy of the Receipt
issued to my client in respect of the said amount is enclosed.
(4) Thereafter on 1st November, 2013 and again on 20th November, 2013, my client writes to
you requesting you to refund the sum of Rs. 5,000/- illegally charged charges. But he has
not received any reply till date.
(5) In view of what is stated in above my client intends to file a suit against the Central
Railway in a Competent Court of law, after the expiry of 2 (two) months from the receipts
of this Notice by you.
(6) As per the draft plaint enclosed unless the relief claimed in the said plaint are granted to
my client within the said period of 2 (two) months.
(7) Kindly treat this as a Statutory Notice under Section 80 of the Code of Civil Procedure,
1908.
(8) Central Railway is liable for the expenses of this Notice.
PLACE: SURAT Sd/
DATE: - 16TH DECEMBER, 2013 Advocate

(1) : A"A"C <"; # 9 @A"C 7 /- @ :@

;C9 =," A , @
( ) " - + # ( .' + #
.( . : ' . .( : : (
. : Judicial Magistrate Ist Class ' . < #+
. ( = : # . ' 2+ .( &
' " ' - < #

Before the Principal Judge, Family Court at Surat

In the Court of Judicial Magistrate Ist Class at Surat

Maintenance Application No. 125 of 2005

!
 ( 62 )

A. B. d/o B. C. & w/o. M.N. ( name of D )

123, A B Road, Surat, ......................................... : B +
Vs.
M. N. s/o O. P.
456, A B Road, Surat, ......................................... Oponant

%' ? ,++ B 7 / @ :@ +

The above named applicant hereby states on solemn affirmation as under: -

(1)The applicant as a legally wedded wife of the opponent where marriage was solemnly as
per Hindu Rights and Customs on at the date: 12-10-2000 at SURAT. There is no issue out of
the said wed look even though three years time has been lapsed.
(2)The applicant began to ill treat that applicant for the reason that she could not conceive any
child through three years has lapsed. The applicant was beaten and driven out of the house on
01-06-2003. The applicant being helpless return to her parent’s house and ever since than she
is living with her parents. The parents of the applicant are old people and are striving hard for
survival
(3)The applicant cannot be found fault of the non-conception. The opponent is trying to
remarry with another woman. The applicant approached danger to her life in the hands of the
opponent, even if she joints him at any moment.
(4)The applicant is thus justified in living away from the husband who is the opponent herein.
(5)The opponent has neglected and refused to maintain the applicant which he is legally liable
to maintain her
(6)The applicant has no source of income for her livelihood. The applicant is unable to
maintain herself.
(7)The opponent is working as a contractor earning a salary of Rs. 10,000/- per month. Apart
from his source the opponent is in possession of 4 acres of land in Village. Fetching him an
income of Rs. 50,000/- per annum.
(8)The applicant claims a sum of Rs. 5,000/- per month towards her Maintenance.
(9)The applicant therefore prays: -
(A)That the honorable Court may be pleased to award a sum of Rs. 5,000/- toward.
(B)Any other order, which the honorable Court claim fit may be made
(C)Caused of his applicant may please be awarded from the opponent.

Sd.
Advocate for the Applicant
VERIFICATION
I, the applicant to hereby declare that the facts maintain declare that the facts maintain above
all true and correct to the best of my (notice), knowledge, belief and information.
PLACE: SURAT
DT.: 16TH DECEMBER, 2006
Sd.
OF THE APPLICANT

!
 ( 63 )

: A"A"C <"; # 9 @A"C 7 /- @9 :@ ;C9 =," A , @

In the Court of Judicial Magistrate Ist Class at Surat

Maintenance Petition No. ... / 2009

A. B. w/o B. C.
123, A B Road, Surat, Gujarat ......................................... Petitioner

Vs.

M. N. s/o O. P.
456, A B Road, Surat, Gujarat ......................................... Respondent

Application for maintenance by wife under S. 125 Cr P C, 1973

The aformentioned petitioner begs to state as under:-

That the petitioner is the wife of the respondent, their marriage having been solemnized at
Surat on 10/10/2006 according to the Hindu religion, vedic ceremonies.

1. That after the marriage, the petitioner and the respondent cohabited and resided
together for about threeyears, and during this period, the petitioner did not bear any
child.
2. That since the petitioner did not bear a child, the respondent started to ill-treat her,
and on a number of occasions, she was driven out of the matrimonial house, and had
no other go but to stay with her parents against her and their wishes.
3. That on 10/10/2009, the repondent beat the petitioner up and threw her out of the
house and did not let her come back in the house.
4. The petitioner and her parents tried their best to convince the respondent and his
parents but the respondent did not allow the petitioner to cohabit with him.
5. That the petitioner is, thus, forced to stay with her parents, who are very poor.
6. Due to extreme emotional stress, that the petitioner is not able to pursue any job or
vocation and so is unable to maintain herself.
7. That the respondent is employed in XYZ Company and is drawing a salary of
Rs. 20,000/- per month, and even though he has sufficient means, the respondent has
refused and neglected to maintain the petitioner.
8. That the petitioner served upon the respondent a notice, on 20/10/2008 calling upon
him to pay to the petitioner a maintenance allowance @ Rs. 5000/- per month, but
the opponent has not done so, and hence this application.
9. That the petitioner resides within the local limits of the jurisdiction of this Court,
and hence, this hon’ble Court has jurisdiction to try and decide this application.

!
 ( 64 )

10. That this application being chargeable with a fixed rate of Court fee, the same is
paid herewith.
11. That the petitioner, therefore, prays that –
(a) This application be kindly allowed, and the opponent be ordered to pay to this
petitioner maintenance allowance @ Rs. 5000/- per month from the date of this
application;
(b) The Costs of this application be awarded from the opponent;
(c) Any other orders in the interest of justice be kindly passed.

Place: …………………. (Signature of the Petitioner)

Date: …………………..

Advocate for Petitioner

Verification

I, ______, do hereby verify that the contents from paras 1 to 12 are correct
and true to the best of my knowledge and personal belief and no part of it is
false and nothing material has been concealed therein. Affirmed at Surat this
4th Day of September 2009.
(Signature)
Petitioner
(7) Notice in case of Cheque Bouncing
' "F" ' >
Cheque Bouncing is a quasi criminal matter covered under Sec. 138 of Negotiable
Instruments Act.
Conviction under this section may incurr prison sentence.
1. However, before a law suit can be filed, the receiver of the cheque must send a
notice to the cheque issuer demanding money. The demand should clearly mention
the details of the transaction that obligated the issuer to issue the cheque and the
request that the money should be paid within 15 days.
2. The notice must be sent within 30 days of receiving information from the bank that
the cheque has been dishonoured.
3. If the payment is not received within 15 days after sending the notice, a law suit can
be filed within the next 30 days.
4. For example:
o Cheque given on 1/1/2010
o Cheque put up in the bank on 5/1/2010 (cheque must be put up within six
months of the date on the cheque).
o Bank dishonours the check on 10/1/2010.
o Notice demanding money sent on 15/1/2010.(Notice must be sent within 30
days i.e. before 9/2/2010).

!
 ( 65 )

o Need to wait for payment for 15 days i.e. 30/1/2010

o Law suit may be filed between next 30 days i.e. 1/2/2010 and 2/3/2010.

@ @ + # @ 6
7 3 % " , '?
IN THE HONORABLE COURT OF JUDICIAL MEGISTRATE FC at SURAT.
Criminal Complaint No.: 100 of 2005.
Date: - 20-3-2005
Shri Bharatkumar Babulal Shah
Aged: 42 years, Resident of 11, Keshav Park,
Surat. ………………….Complainant
V/S.
Shri Arvind Nirubhai Kakdiya
Aged: 48 years, Resident of 10, Deep Society,
Surat. ………………….Accused
SUB: - Complained filed under Section-138 of the negotiable Instrument Act.
(1) The accused is carrying on business in the name ‘GOPI TRADERS’.
(2) The accused in the course of business had to repaid the balance amount against the legal
dues of the complaint for which the accused had drawn and delivered a Cheque
NO.12345 of Rs. 1,00,000/- on 11-03-2005 drawn in the Bank Of Baroda,
(3) The Bank memo of which was issued on 14-03-2005, the complainant has received the
intimation from the Bank on 15-03-2005.
(4) Thus the accused had committed an offence of drawee cheque without funds and the
cheque was dishonoured on the ground of “Insufficient of Funds”.
(5) Hence, the accused has committed an offence punishable U/S 138 of N. I. Act as the
cheque was dishonoured by the drawee Bank on 18-03-2005 and intimation of which was
received on 19-03-2005.
(6) The Complainant served upon a legal demand notice U/S 138 of N. I. Act on your
Registered Post which was served to him on 01-04-2005 and a copy of said notice was
also sent to them by on 02-04-2005 which has been received. Thus notice is served to the
accused, but even after the expiry of 15 (fifteen) days after the serving of the said notice,
he has not paid the amount to the complainant and thus he has committed an offence
punishable under Section 138 of N. I. Act and therefore he is required to the prosecuted
and punished.
(7) Under the above circumstances the accused had committed an offence punishable U/S 138
of N. I. Act as the cheque was dishonoured at SURAT by the Bank at SURAT.
(8) The offence has been taken place within the jurisdiction of this court.
(9) The complainant prays as follow that: -
(a) Process made please be issued against with the accused, and
(b) He may please be tired and punished in according with the providence of law.
PLACE: SURAT
DATE: 16TH DECEMBER, 2006
Sd/
Advocate for the Complainant Complainant

!
 ( 66 )

The complainant realized upon the following list of document.

(1) Copy of the Cheque.
(2) Copy of the Bank Memo dated 15-03-2005.
(3) Copy of the intimation received by the Complainant of Bank.
(4) Copy of the Notice sent by the Complainant.
(5) Copy of the white slip of the registered post.
(6) Copy of the acknowledgement.
The complainant realized upon the following list of witnessed.
(1) The Complainant himself.
(2) The officer of the Bank of Baroda.
PLACE: SURAT
DATE: 16TH DECEMBER, 2006 Sd/
Complainant

Note: Attaching a copy of all the referred documents is not necessary.

(3) : 9 = : '?
IN THE COURT OF THE SMALL CAUSES JUDGE, SURAT
Suit No. 50 of 2005
Shri Balwant Kumar Chopra
Aged: 42 years, Resident of 11, Keshav Park,
Surat. ………………….Plaintiff
V/S.
Shri Amit Nirubhai Sangani
Aged: 48 years, Resident of 10, Deep Society,
Surat. ………………….Defendant
The above named plaintiff states as follows that: -
(1) The plaintiff is money-lender carrying on business of money-lending in SURAT. The
defendant is serving as clerk in “A. V. and Sons Pvt. Ltd.”.
(2) The defendant on or about 10th January, 2005 approached the plaintiff for a sum of Rs.
5,00,000/- which sum he needed at that time for the purchase of plot of land in the out of
city. The plaintiff agreed to lend the said sum at an interest of 12% per annum.
(3) The plaintiff lent and advanced the said sum of Rs. 5, 00,000/- to the defendant on or
about the 10th January, 2005 and defendant as a collateral security executed a promissory
note in favour of the plaintiff for the said amount. The defendant had agreed to pay the
amount to the plaintiff whenever demanded.
(4) On 15th July, 2005, the plaintiff demanded the said amount from the defendant by letter
which was not responded.
(5) On 31st August, 2005, the plaintiff served a notice by registered post which also was not
replied.
(6) The defendant has failed to repay the amount as per agreement.
(7) The cause of action arose on 31st August, 2005 when the defendant refused to repay the
said amount finally.
(8) The promissory note was executed in SURAT and the defendant is residing in SURAT,
therefore, this court has a jurisdiction to hear and decide the matter.

!
 ( 67 )

(9) The suit or plaint is not time barred by any limitation.

(10) The suit is valued at Rs. 3000/- for the purpose of court fees and jurisdiction.
(11) The plaintiff therefore prays that: -
(a) The Court be pleased to pass a decree against the defendant for a sum of Rs. 5,
00,000/- and interest thereon in favour of the plaintiff.
(b) Cost of the suit.

PLACE: SURAT
DATE: 16TH DECEMBER, 2006
Plaint drawn by
Sd/ Sd/
Advocate for the plaintiff Plaintiff

VERIFICATION
I, the applicant to hereby declare that the facts maintain declare that the facts maintain above
all true and correct to the best of my knowledge, belief and information.

PLACE: SURAT
DATE: 16TH DECEMBER, 2006
Sd/
Plaintiff

(9) Application to report an offence to Magistrate

' "F" ' >

1. As per S. 190 of Cr PC, any Magistrate of First Class (or any Magistrate of Second
Class specially appointed for this purpose by Chief Judical Magistrate) can take
cognizance of any offence upon receiving a complaint, or upon a police report, or
upon information received from any person other than a police officer, or upon his
own knowledge.
2. As per S. 193 of Cr PC, a Court of Session cannot directly take cognizance of any
offence. The JMFC may "commit" the case i.e. transfer the case to Court of Session
if the offence is trialable only by Court of Session (S. 209).
3. S. 200 specifies the procedure for complaining to a magistrate of any offence.
4. There is no prescribed form of a complaint. In general:
1. the complaint should be about a non-cognizable offense (because for a non-
cognizable offense, the police does not register FIR). For a congizable
offence, if the police refuses to register FIR, a complaint may be made about
it to the JMFC.
2. it must be addressed to JMFC
3. state facts relating to the offence
4. must pray for action against the prepetrators
5. Important IPC Sections under which complaint is usually made:

!
 ( 68 )

Crime Cognizable? Bailable? Tried By

False Evidence - 193 NC B JMFC
False Charge - 211 NC B JMFC
Adulteration of food - 272 NC B JMFC
Water Pollution - 277 C B Any Magistrate
Atmosphere - 278 NC B Any Magistrate
Rash Driving - 279 C B Any Magistrate
Negligent Conduct w.r.t. Poison - 284 C B JMFC
Public Nuisance - 290 NC B Any Magistrate
Murder - 302, Culpable Homicide N A Murder - 304 C NB Court of Session
Death by rash or negligent Act - 304 A C B JMFC
Dowry Death - 304 B C NB Court of Session
Hurt - 323 NC B Any Magistrate
Grievous Hurt - 325 C NB Any Magistrate
Theft - 379, Robbery - 392 C NB Any Magistrate
Criminal Breach of Trust - 406 C NB JMFC
Defamation - 500 NC B Court of Session
Criminal Intimidation - 506 NC B Any Magistrate

In the Court of Judicial Magistrate Ist Class at Surat

Criminal Complaint No. ... / 2009

A. B. s/o B. C.
123, A B Road, Surat, ......................................... Complainant

Vs.

M. N. s/o O. P.
456, A B Road, Surat, ......................................... Accused

Complaint of Offence under S. 506 (Criminal Intimidation) I P C

Complaint of Offence under S. 290 (Public Nuisance) I P C

The aforementioned complainant begs to state as under:-

1. That the complainant is a resident of 123, MG Road, Surat.

2. That the accused is a resident of 222, MG Road, Surat, which is in the same area.
3. Since 10/10/2009, the accused and his friends have started playing cards on the
street in front of the plaintiff's house every evening and late night.
4. The accused and his friends create a lot of noise while playing and also shout
obscenities at each other.
5. Due to this behavior the plaintiff is not able to life peacefully in his house.

!
 ( 69 )

6. The plaintiff has requested the accused several times to stop playing in front of or
near his house but to no avail.
7. The plaintiff also gave the respondent a written notice in this respect.
8. The complainant, therefore, prays that –
(a) appropriate proceeding be initiated against the accused under Cr P C.
(b) the accused be stopped from continuing the nuisance in the residential locality.
(c) the accused be convicted of the offence under S. 290.
(d) the accused be ordered to pay compensation for medical treatment, mental
agony to the amount of 100,00/-

Place: …………………. (Signature of the

Complainant)
Date: …………………..

No Verification

No Notary

(10) Application by husband and wife for Divorce by mutual consent

Hindu Marriage Act, 1955

!"# $ % & '

' "F" ' >

1. All petitions related to family matters such as divorce, restitution of conjugal rights,
adoption, child custody, etc are filed before Family Court. There is a family court
for each district and it is at the same level as the District Court. If no Family Court
has been set up for a district, a petition may be filed in the District Court.
2. The petition for such matter is to be submitted directly by the applicants. No
advocate is allowed. [For a applicant to appear through advocate, a special
permission from court is required.]

Before the Principal Judge, Family Court at Surat

Divorce Petition No. ... / 2009
A. B. s/o B. C.
123, A B Road, Surat,
......................................... Petitioner 1

!
 ( 70 )

M. N. wife /o O. P.
456, A B Road, Surat, ......................................... Petitioner 2

Application for Divorce by husband and wife under S. 13-B of H M Act, 1955.

The aformentioned parties beg to state as under:-

1. That the parties to this present petition are both by religion and faith Hindus and
they were married per Hindu rites/customs at Surat on 10/10/2006 and the said
marriage is still existing. They are of age above 21 years.
2. That ever since the marriage, the petitioners did not live happily being of different
tastes habits, ideas, and bearing and so being completely different nature and
temperament.
3. That the petitioners could never adjust themselves even for some days and so had no
love nor heart for each other
4. That the petitioners have no hope for reconciliation between them in future.
5. That the parties last lived/cohabited at Surat, within the jurisdiction of this court.
6. On 10/10/2008 respondent, of own and out of free will broke the matrimonial home
and withdrew herself from the company of said petitioner 1 and since then she has
been residing and living at her father's house.
7. That both the parties have decided to dissolve the marriage.
8. That except as hereunder stated there were no other proceedings between parties.
9. That the above petition is bona fide and not presented in collusion between the
parties.
10. That there is every legal ground in granting the relief.

Your petitioners hence pray for a decree of dissolution of marriage by mutual consent
under section 13B of the Hindu Marriage Act 1955.

Place: …………………. (Signature of the Petitioner 1)

Date: …………………..

Place: …………………. (Signature of the Petitioner 2)

Date: …………………..

Verification
I, A. B s/o B. C., do hereby verify that the contents from paras 1 to 9 are correct and true
to the best of my knowledge and personal belief and no part of it is false and nothing
material has been concealed therein. Affirmed at Surat this 4th Day of September 2009.

(Signature) Petitioner 1

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 ( 71 )

Verification

I, A. B w/o B. C., do hereby verify that the contents from paras 1 to 9 are correct and true
to the best of my knowledge and personal belief and no part of it is false and nothing
material has been concealed therein. Affirmed at Surat this 4th Day of September 2009.

(Signature) Petitioner 2
.( - " "" " - (
!"# $ % &
the petition is above named most respectfully begs to submit as under.(1)that the
petitioner’s are husband and wife. Their marriage having been solemnized at surat on 1-1-
1998 according to the Hindu religion. (2) that out of the said wedlock the petitioners have got
a son by name suraj and daughter name nisha. (3) that the petitioner is submit that during the
recent past, they reqlised that they their, likings testes of life temperaments ideas, thinkings,
nature and life are so different from each other that it wailed not be possible in future.(4) that
the petitioners have tried their best to have a reconciliation for a happy domestic life, but they
have been very unfortunate to bring about the same. (5) that the petitioners have, therefore
decided to dissolve their marriage by mutual consent and hence this petition. (6) that the
petitioners do here by declare and confirm by them is not collusive. (7) that the petitioners
also submit and declare that they have been residing separately for last more than 2 years and
hence this petition is maintainable. (8) that this petition is file on the court fee stamps of
rs.50/- (9) that the petitioner therefore prey that- this petition be allowed and marriage
between the petitioners be dissolved by a decree of divorce on the basis of their mutual
consent.-no orders be passed as to the costs. –any other order in the interest of justice be
kindly passed.

(77) : 9 0 E= 75//
D

Before the Principal Judge, Family Court at Surat

case/pitition No. ... / 2009

M. N. wife /o O. P.
456, A B Road, Surat, .................................... Petitioner/applicant
V/s

A. B. s/o B. C.
123, A B Road, Surat, ......................................... Oponanet

SUB:- petition for Restitution of conjugal right of H.M.act.1955

The above named of petitioner most respectfully begs to submit as under:-
(1) the petitioner wedded with the opponent on 10-04-2001 lawfully according to the custom
and tradition. We both lived to 11-05-2013. we have no any child for during the marriage life.

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 ( 72 )

(2) the opponent makes/represent excuse for going to the out of city, the said opponent left me
at parent’s house on 12-05-2013. The opponent gave me a trust that when he will come back
from out of city, he will take me at our house.
(3) That opponent is coming from out of city on 15-07-2013 for this matter the time has passed
for 6 months, even though the opponent did not took me yet. The petitioner has sent latter on
01-08-2013 and on 15-08-2013 and on 01-09-2013. By her father and by her brother, but there
is no answer for the said latter.
(4) the opponent is breaching the duty of the restitution of conjugal right without any reason.
(5) the reason for this petition, opponent made excuse for going out of city, he left ma at my
parent’s hours on 12-05-2013,he gave me trust to took me at our house when he came back
from out of city, and so many latter’s sent on 10-08-2013 and 15-08-204 and on 01-09-2013,
he did breach the right and duty of restitution of conjugal right , from and when produced.
(6) the petitioner has married with opponent at surat within the territorial limits of the
jurisdiction, so you gave me decree on behalf it.
(7) the petitioner and opponent are Hindu by birth and they continue to be so.
(8) there has no action has been taken except this petition.
(9) at this time the petitioner is living her parent’s house . there is no fixed source of income.
The petitioner was ready to fulfill the right of marriage and to be continue.
(10) The petitioner has applied this petition by bona fide, not by mal fide.
(11) The petitioner pray that:-
(a) a decree for the restitution of conjugal right against the opponent may please be
passed.
(b) cost of this petition.
(c) any other decree this honorable court deems fit may please be passed.

Sd.
OF THE APPLICANT

VERIFICATION
I, the applicant to hereby declare that the facts maintain declare that the facts maintain above
all true and correct to the best of my (notice), knowledge, belief and information.
PLACE: SURAT
DT.: 16TH DECEMBER, 2006
Sd.
OF THE APPLICANT

Sd. Advocate for the Applicant

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 ( 73 )

(12) A Plaint claiming compensation for Defamantion

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE at SURAT

Suit No. ………… / 20…….

A. B. s/o B. C.
123, Katatgam Road, Surat, ......................................... Plaintiff

Vs.

M. N. s/o O. P.
456, Katatgam Road, Surat, ......................................... Respondent

Plaint under Order 7 Rule 1 for Compensation for Defamation

The plaintiff respectfully states as follows : -

Brief Description of the case:

(1) The respondent publicly accused the plaintiff of selling watered down milk, which has
caused immense harm to the reputation of the plaintiff. The present suit is meant for
compensation for the harm done to the plaintiff's reputation.

Matters of Inducement:
(2) Plaintiff is a milk man and sells milk in many colonies of Surat including Katatgam
Road, AB Nagar.
(3) Respondent is the president of an informal residents association of Katatgam Road.

Facts constituting cause of action:

(4) In a residents association meeting held on 10/10/2009, the respondent publicly accused
the plaintiff of selling milk mixed with water. A tape record of the respondent making the
accusation is attached with this petition.
(5) The said speech made by the respondent was heard by hundrends of residents of
Katatgam Road, where the plaintiff sells milk.
(6) The said speech has caused the plaintiff a lot of embarrament and loss of business.
(7) The plaintiff denies that he sells watered milk and claims that the statement made by
the respondent was completely baseless.
...
Jurisdiction:
(10) The meeting where the defamatory statement was made by the respondent happened
in Surat, which is under this court's jurisdiction.
(11) The plaintiff claims, on account of the loss of business as well as mental agony, an
amount of 40,000/- which is under this court's jurisdiction.

Relief Claimed:
(12) The plaintiff prays that the court be pleased to order the respondent to pay sum of Rs

!
 ( 74 )

40000 on account of the loss of business because of his baseless and false speech. The
plaintiff further prays that the respondent be ordered to pay compensation for mental
harassment and cost of this litigation.

Place: …………………. (Signature of the plaintiff)

Date: …………………..

Advocate for Plaintiff

Verification

I, ______, do hereby verify that the contents from paras 1 to 12 are correct
and true to the best of my knowledge and personal belief and no part of it is false
and nothing material has been concealed therein. Affirmed at Surat this 4th Day of
September 2009.............................................................................
(Signature) Plaintiff

(13) Notice By Lessor To Lessee To Quit For Non Payment Of Rent

Notice: Registered A.D & Speed Post.
Advocate
Mr. Ashvin B. Prajapati
Resident of 96, Gita Nagar Society,
SURAT.
Date: 16-12-2013

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 ( 75 )

(14) Suit for ejection of a tenant

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A, son of B, aged about 55 years,
residing at ...Plaintiff
X, son of Y, aged about 30 years,
residing at ...Defendant

The plaintiff begs to state as under that :-

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The plaintiff, therefore, prays that....................
(a) The Honourable Court be pleased to order the ejectment of the defendant,
(b)A decree for arrears of rent of Rs. 3000/- be made against the defendant in favour of the plaintiff.
(c) C o s t s o f t h e s u i t
Plaint drawn by Sd.
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 ( 76 )

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 ( 77 )

(16) Suit for arrears of rent u/s 12(2) A of The Rent Act.

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The Plaintiff is the owner of the premises situate at.... The defendant, prior to
termination of the tenancy, was monthly tenant in respect of premises belonging to
the plaintiff as aforesaid at monthly rent of Rs. 16/-
The defendant failed to pay rent of the said room in spite of repeated demands, the
plaintiff by his. Advocate's notice dated 20-10- 19 demanded arrears of rent from 1-1-
19 and also duly terminated his tenancy and called upon him to quit and deliver vacant
and peaceful possession of the said room. The defendant has been duly served with
the said notice but failed to vacate the said room and is holding over.
The plaintiff submits that in as much as the defendant failed to pay arrears of rent as
demanded of him in terms of section 12(2) of the Rent Act., he is not ready and willing
to pay the rent and therefore, is not entitled to the protection under the Rent Act. The
plaintiff is, therefore entitled to a decree and order in respect of the said room against
the defendant under section 12(2) A of the. Rent Act.
The premises in suit are situate in Surat and both the plaintiff and the
defendant are residing in Surat. This Honourable Court has, therefore,
jurisdiction to try this suit.
The plaintiff values the subject - matter of the suit for court fees and jurisdiction at
Rs. 192/- being the annual back rent the suit room.
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The plaintiff therefore prays for a judgement and decree against the defendant ordering him
to quit and deliver over vacant possession of the rent room... situate at.... and for costs and such order and
further reliefs as this Honourable Court may in the circumstances of the case deem fit and. proper. .
Sd. Sd.
Advocate for plaintiff Plaintiff

I, Ramkhilawan Shivram Pathak, the plaintiff herein do hereby solemnly affirm and
say that what is stated in the fore going plaint is true to my knowledge and to the best of my
information and belief. Solemnly affirmed at Bombay this 18th day of Dec
Sd, Sd,
Advocate for plaintiff Plaintiff
List of documents 1. Rent bills.
2. Copy of notice with R. P. acknowledgement and service endorsement.
3. Other documentary evidence.

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 ( 78 )

(17) Civil Suit : Application for interim injunction for easement of

light and air
IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE at SURAT
Civil Suit No. - of

////////////////////////////////////////////////////////////// 5
//// 2
Suit for declaration and injunction

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: & : :

The plaintiff has filed a suit for declaration and injunction against the defendant claiming a
right of easement of light and air peaceably enjoyed for continuous period of 30 years and
more through the window on this western side of the plaintiff's house.
The defendant is contemplating to erect a wall on the western side of the house belonging to
the plaintiff and obstruct the light and air enjoyed by the plaintiff for the last 30 years
and more.

The plaintiff is likely to be put to an irreparable loss by the erection of the wall by the
defendant. It is therefore in the interest of justice that the defendant may be restrained
from committing the contemplated injury to the plaintiff and the status quo should be
maintained during the pendency of the suit.
The plaintiff has filed the necessary affidavits of his neighbours and his own affidavit
swearing that A has enjoyed light and air for 30 years without interruption from the
window in the room on the upper storey.
The plaintiff therefore prays that the defendant may be restrained from creating the wall on
the western side during the pendency of this suit.
Sd. Sd.
5 I & 5
Verification.

(73) ,++ = "

Before the Principal Judge, Family Court at Surat

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 ( 79 )

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(75) @ ' ;C9 :,9A"A"C :9C:,9A

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE at SURAT
Civil Suit No .................. /200.

Shri SI __.(Full Name) ________ Plaintiff

age 32 years, occupation - agriculture,
resident of .....................

Versus

Shri _F__ (Full Name) ________________

age 63 years, occupation - agriculture,
Smt. _M_ (Full Name) _
age 55 years, occupation - agriculture,
Shri _S2_. (Full Name) _______________
age 26 years, occupation - agriculture,
all residents of ............................ Defendant

A SUIT FOR PARTITION

The plaintiff abovenamed submits this plaint, praying to state as follows :

1. The Pedigree G : That the pedigree is as follows :
F (Defendant No. 1)
M (Defendant No. 2)
SI (Plaintiff) S2 (Defendant No. 3)

That the defendant No. 1 is the father of the plaintiff and the defendant No. 3 and
husband of the defendant No. 2, while the defendant No. 2 is the mother of the plaintiff
and the defendant No. 3, and the plaintiff and the defendant No. 3 are full/real brothers.
2. Description of Property : All that piece and parcel of land situate within the
Registration Division & District Surat, Sub-Division & Taluka City, within the local limits
of the Surat Municipal Corporation, revenue village Katargam, bearing R.Survey No. 302,
admeasuring 2 hectares or thereabouts, and bounded
by as follows:
On or towards the East _ CTS No. 300,
On or towards the South _ CTS No. 299,
On or towards the West _ Public Road,
On or towards the North _ Nullah.
3. That the property described in para 2 above originally belonged to GF, who died in June
200_, and on his death, the suit property came to be devolved upon the family of the

!
 ( 81 )

plaintiff and the defendants, and since then, the defendant No. 1 has been managing the
suit property as a Karta of the joint family.
4. That since last one and a half years, the relationship between the plaintiffs wife and the
defendant No. 2 is so strained that there have been frequent quarrels, and it has finally
become necessary for the plaintiff to live apart.
5. That the plaintiff accordingly called upon the defendant No. 1, on , to effect
partition, but he refused to do so.
6. That the plaintiff submits that the defendants have been obstructing this plaintiff
in his enjoyment of the suit property along with them, and this plaintiff has no other
source of income except and save the suit property.
7. That the plaintiff, therefore, served upon the defendants a notice, dated ____calling
upon them to effect partition, but the defendant No. 1, once again, refused to do so, and
hence, this suit.
8 . T h a t t h e p l a i n t i f f a n d t h e d e f e n d a n t s a r e g o v e r n e d b y t h e Mitakshara School of
Hindu Law, and accordingly, the plaintiff i s e n t i t l e d t o o n e - f o u r t h s h a r e i n t h e s u i t
property.
9 . T h a t t h e c a u s e o f a c t i o n f o r t h i s s u i t f i r s t a r o s e o n _______________ ., when the
plaintiffs demand for partition was turned down by t h e d e f e n d a n t s a n d h a s s i n c e t h e n
been arising every day thereafter, and hence, the suit filed today is well within
limitation.
10. T h a t t h e p r o p e r t y i s s i t u a t e w i t h i n t h e l o c a l l i m i t s o f t h e j ur isdi cti on o f t hi s
Cour t, and hence, th is H on 'bl e Co urt h as j u r i s d i c t i o n t o t r y a n d d e c i d e t h i s s u i t .
1 1 . T h a t t h e s u i t i s v a l u e d f o r t h e p u r p o s e o f j u r i s d i c t i o n a t Rs.__t h a t b e i n g t h e
a m o u n t e q u a l t o 2 0 t i m e s t h e r e v e n u e as s e s s m e n t , a n d o n t h e o n e - f o u r t h o f su c h
a m o u n t , p r o p e r c o u rt -f e e i s p ai d h e r ew i t h .
12. That the plaintiff, therefore, prays that –
(A)It be declared that the plaintiff is entitled to one-fourth share i n t h e su i t p r o p e r t y ;
( B ) T h e p l a i n t i f f s o n e - f o u r t h s h a r e b e d i v i d e d a n d g i v e n i n h i s po s se s si on ;
( C ) T h e d ef e n d a nt s b e p e r m a n e n tl y r e st r ai ne d f r o m o b st ru c t i ng t h i s pl ai nt i ff i n hi s
e n jo y m e nt of th e su i t p r op e rt y;
(D)The plaintiff be paid the costs of this suit from the defendants,
and
(E) A n y ot h er o r d e r s i n t h e i nt e r e st o f j u st i c e b e k i n d l y p a s se d .

Surat,
Dated:
Sd/- S1 PLAINTIFF
Sd/- xXx
ADVOCATE FOR PLAINTIFF

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 ( 82 )

VERIFICATION

I, Shri S1, the present plaintiff, do hereby state on solemn affirmation that the contents of
this plaint in paras 1 to 12 are true and correct to the best of my knowledge and belief,
and I have signed hereunder.

Sd/- SI PLAINTIFF

#'($ )
Important points (Assuming that the reader knows what is an interpleader suit)

Format of all Civil suits are pretty much the same. They are governed by Order VI
(Pleading) and Order VII (Plaint) CPC.

1. Conditions required for an Inter pleader Suit:

1. There must be some debt, sum of money, or other property - movable or
immovable, in dispute.
2. Two or more persons must be claiming the same property advesrly to each
other.
3. Plaintiff must not be interested, partly or wholely, in the same property
(subject matter of the suit).
4. There must not be a suit pending wherein the rights of rival claimants can be
properly adjudicated.
2. As per Order 35 of CPC, in every interpleader suit, the plain must state the
following -
1. the plaintiff claims no interest in the subject matter in dispute other than
charges and costs
2. the claims have been made by the defendants severally
3. there is no collusion between the plaintiff and any of the defendants
3. As per O 35, R 5, an agent cannot sue his principal or a tenant his landlord for the
purpose of compelling them to interplead with persons other than persons claiming
through such principal or landlord. This is because an agent cannot dispute the title
of his principal and a tenant cannot dispute the ownership of his landlord.

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE at SURAT

Suit No. ………… / 20…….

1. A. B. s/o B. C.
123, M G Road, Surat, MP ......................................... Plaintiff

Vs.

1. M. N. s/o O. P.
456, M G Road, Surat, MP ......................................... Respondent 1

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 ( 83 )

2. X. Y. s/o Y. Y.
555, M G Road, Surat, MP ......................................... Respondent 2

Plaint under Order 35 Rule 1

The plaintiff respectfully states as follows : -

(Matters of Inducement)
(1) Plaintiff is a Govt. Servant employed with ... .
(2) Respondents 1 and 2 are both is the president of an informal residents association of
MG Road.

(Facts constituting cause of action)

(3) On 10/10/2008, Respondent 1 gave the plaintiff gold bangles for safekeeping.
(4) On 10/11/2008, Respondent 2 came to the plaintiff asking for the gold bangles claiming
that they were pawned by respondent 1 to respondent 2.
(5) On the same date, 10/11/2008, Respondent 1 also came asking for the bangles.
Respondent 1 denied pawning the bangles to respondent 2.

(Statements as per O 35)

The plaintiff has no interest in keeping the gold bangles.
There is no collusion between the plaintiff and any of the defendants
The bangles are being claimed by the respondents severally and the plaintiff is ignorant of
the respective rights of the claimants.
...
(Jurisdiction)
(10) Respondent 1 is a resident of MG Road, which is under this court's jurisdiction.
(11) The cost of the bangles is 40,000/- which is within this court's pecuniary jurisdiction.

(12) Relief Claimed: The plaintiff prays that

1. the respondents be restrained , by injunction, from taking any proceedings again the
plaintiff in relation thereto
2. the respondents by required to interplead together concerning their claims to the said
property
3. some person be authorized to receive the said property pending such litigation
4. upon delivering the property to such receiver the plaintiff be discharged from all
liability to either defendants in relation thereto.

Place: …………………. (Signature of the plaintiff)

Date: …………………..

Advocate for Plaintiff

!
 ( 84 )

Verification

I, ______, do hereby verify that the contents from paras 1 to 12 are correct and true to the
best of my knowledge and personal belief and no part of it is false and nothing material has
been concealed therein. Affirmed at Surat this 4th Day of September 2009.

(Signature)
Plaintiff

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 ( 85 )

Q-1 MY VIEWS ON CAPITAL PUNISHMENT OR CAPITAL PUNISHMENT

":+
":+ " ": .
ANS: - INTRODUCTION OR HISTORY: -
Capital punishment occupies an important place in the history of punishment, but till in
the middle ages, ‘sentencing (punishing) offenders to death’ was a very common kind of
punishment, even for petty offences ( ). In those days, Capital punishment was also
awarded (. ) for the theft (* and for forgery (counterfeit) ( $ $).
th
In the 18 century, BETHAM, he was a first jurist to raise “The Voice Of Protest
(Opposition)” against this punishment. India is one of the country where capital punishment
can be awarded under the law.

OBJECT OF THE CAPITAL PUNISHMENT: -

Capital punishment, by killing the offender, aims to create a terror in the mind of other
offenders and secondly it aims to prevent the repetition of the offence. However, this
punishment may be cruel and inhuman. There have been many arguments for and against this
kind of punishment.

=>ARGUMENTS AGAINST CAPITAL PUNISHMENT: -

(1) Deterrent Effect/Deterrent object( 3 &) ) :- Capital punishment does not
leave any chance to the offender for improvement. It does not serve its deterrent object
at all. For example: - In certain states of U.S.A. where the death penalty has been
abolished, there are fewer serious crimes than in other states where capital punishment
is retained (3 69 ). But if capital punishment has the deterrent effect in the
former states, crimes ought to have decreased. That’s why; the statistics don’t prove the
deterrent effect of capital punishment.
(2) Prevention at what cost and under what justification:-Human rights are opposed to
this punishment. They say this punishment is cruel, barbarious ( !#$) and
inhuman. It’s not even certain that a murderer would repeat the murder again. He might
have committed this heinous crime ( 3 ) under extraordinary circumstances. No
civilized country should continue with this punishment. In Sanjay Chopra & Geeta
Chopra’s case, Billa & Ranga, the two accused were awarded the capital punishment.
They made a petition to the Supreme Court, contending ( 3 .) that the method of
hanging by rope in India is unconstitutional. But the Supreme Court had rejected it and
they were hanged ultimately.
(3) It is neither effective nor just, it should be abolished:-Our law of evidence and the
law of procedure are not fool proof. It is possible that once the capital punishment is
awarded and the person executed, cannot be revoked. Therefore, it is argued that this
punishment is neither effective nor just, and it should be abolished.
(4) It is argued that it’s better to save 9 murders from capital punishment, than inflict it on
one who may be, in fact, innocent. OR “Let 99 offenders be set free, but an innocent
may should not be convicted ( )”.

!
 ( 86 )

=>ARGUMENTS IN FAVOUR OF CAPITAL PUNISHMENT: -

(1) Incorrigible Offenders ( ):- Those who advocate ( ) capital
punishment, argue that there are some offenders who are not only incorrigible ( ) but
who are immensely ( 3 ) dangerous to the society and there is no reason why the
society should be burdened with maintaining such people. If you can’t cure (
4 ), and if this incorrigible element is harmful to human society, why not quietly
remove it ? A man who is hanged to death will never be able top commit any offence in
future.
(2) Punishment by the state is a substitute for private revenge ( " + 3): - If a murderer
is not punished with death, it’s quite possible that other relatives of the victim might
murder, the murderer, and thus a chain of murders might set in. so long as human
emotions are powerful , so long as powers of vengeance (revenge) prevail ( " ),
capital punishment is a necessary kind of punishment.
In conclusion, it may be said that some countries adopt and some countries abolish this
punishment. Looking to the trend of human rights movement, it appears that this punishment
may be abolished in India in the near future.

Q-2: - NATURAL JUSTICE OR PRINCIPLES OF NATURAL JUSTICE.

" 4 & 3
ANS: - The rules of natural justice can be broadly classified under the following categories: -
[1] No man shall be a judge in his own cause.
[2] No man shall be condemned ( unheard ("< =>
[3] One who hears should decide.

[1] No man shall be a judge in his own cause : -

It follows from the fact that a judge must decide impartially between the parties before
him and he should have no direct interest in the subject of the enquiry which would lead him
to decide the matter in favour of one of parties. Bias ( by interest which disqualifies a
judge falls into two broad classes.
(A) Where the judge has a pecuniary (economic) interest in the subject matter of the
litigation ( - the least pecuniary interest in the subject of the litigation
will disqualify any person from acting as a judge and would vitiate(to reduce the
value) the administrative action.
(B) Where from kindred ( or other cause, the judge may have a bias in
favour of one of the parties the right thing in this case is – to disqualify a person
from acting in judicator quasi-judicial capacity on the ground of interest in the
subject-matter of the proceeding.
[2] No man shall be condemned unheard. “Audi alteram partem”: -
This rule involves two propositions, Firstly, the person who is to be condemned or
whose rights are to be affected must have notice of such proceeding. Secondly, he must have
an opportunity, reasonable opportunity to be heard.
The opportunity to be heard may resolve itself into the following questions: -
1. Is an oral hearing necessary in every proceeding?
2. Is it necessary to examine witnesses?

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3. Has the affected person the right to cross examine witnesses whose evidence is to be
used against him?
4. Has a party the right to appear through counsel (legal advice) or by an agent?
Answers to these questions would vary with the varying constitutions of the different quasi-
judicial authorities, the statutory provisions under which they function and the issues involved
in the proceedings. Though uniform answer cannot be given in all the cases, yet some rules
can be formulated on the basis of judicial decisions.
Oral hearing is not integral part of fair hearing unless circumstances are such that
without oral hearing a person cannot put up an effective defence. So also courts do not insist
on cross-examination unless circumstances are such that in absence of it the person cannot put
up an effective defence.
Lastly, right to appear through counsel is not an indispensable part of natural justice.
The denial of legal representation may be justified on the ground that a lawyer of choice
would give edge to the rich over the poor who cannot afford a good lawyer.
In short, notice, personal, right to examine witnesses, right or cross-examination and
right to explain things against oneself are included in the right of being heard.
[3] One who hears should decide: -
The decision in many administrative proceeding is not the decision of one man from the
start to the finish. Often one hears and other decides. Therefore one who decides must hear.
Q-3 LAMPS ( OF ADVOCACY OF WOES ( OF A JUNIOR
ADVOCATE.
ANS: -
Legal practice as a profession requires a sort of particular education, code of ethics and
professionalism through experience and work. Lawyers adopt unprofessional tactics
(, - * ). There is a provision for punishment to an advocate for his professional
misconduct under Advocate Act, 1961.
The legal profession is a noble profession, for those who are already established in the
profession and who have some fame and name in the field but, for a junior advocate,
this profession seems to be ignoble in India.
The legal profession unlike other professions is over-populated. Every year, hundreds
of law colleges send the so called new advocates to the various courts. They are
beginners the tricks of trade under this or that old chap (man) called senior advocate.
There are other less fortunate lawyers who are not able to find a shelter (protection) of
the senior advocate. These fresh lawyers like ‘Eklavya’ learn the profession in their
own way by trial and error method. It is rightly said that “if a doctor makes a mistake
the man goes six feet down and if a lawyer makes a mistake, the man goes six feet high
!” But there is no practical solution to the problem. On e cannot be expected to wait
and learn at the Bar ( without earning for years together.
An ideal lawyer is loyal to his profession and not to his client. He should protect the
interest of his client within the four corners of law. A lawyer’s communication with his
client is strictly confidential. An ideal lawyer will not disclose it.
In India, there are other problems such as social and psychological one over and above
to the economic of India. The profession is not regarded as suitable one for women. The
practice on criminal side would be more difficult for a lady lawyer. The junior
advocates have to face the problems of adjustment. The atmosphere the court
compounds can, in no way be called healthy and inspiring. Tension and torture exist

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everywhere. A cut-throat (murderer) competition from the fellow members and an

unsympathetic attitude ( ( ' ) of the court, hostility of the parties
and malpractices by the lawyers in the courts and amongst all, the undignified
("% ( $) practice has become a reality and one has to stoop ( ) so
law to get a brief or to maintain it that one would like to go for other profession even
after qualifying for entrance at the Bar ( . ) +).
The legal profession is a jealous mistress. One cannot spare time for social activities or
national services. In the mornings and evenings, a junior has to attend his senior’s
office. The day round he has to rush from this court to that court and so in the night he
is so worn out and tired that he would avoid the company of his wife and al this is a
thankfulness task for a junior advocate.
At last, the hard work and honesty, sincerity and truthfulness build the career of the
advocate. The virtues pay and when they pay, a lawyer sees his ambition fulfilled, his
dream come true. He has, then a good reputation, a social status, and riches, everything
that one lives for.

Q-4 Role of Election Commission in Democracy.

Ans: -
Elections and selection are two sister words; very often misunderstood though very
different in their sense. ‘Selection’ is choosing a thing or things from a number by giving it
preference for one cause or another or for its special merit or usefulness. Election is elected by
Election Commission choosing person or persons from others by the number of votes he or
they get, to fill up an office or post. One has to decide oneself whether the elected person can
discharge his or her duties properly and conscientiously and whether he or she is properly
qualified and experience for the office or post or responsibilities.
In selections we have no voting methods. One is selected on his qualification and
experience and his testimonials (certificate of character or conduct) in a person interview on
his or her application. The Prime Minister is elected and not selected. Similarly, the members
of a working committee are elected. In election we require to get the opinion of the majority.
In selection we have to act on our own judgment. But the election is genuine only when the
voters are allowed to vote on their own personal judgment. In selection also the selecting
president has to use his own judgment and not to be influenced (affected) by any one.
Nowadays elections have gained utmost importance. We are living in the age of
democracy and Democracy succeeds only when the Elections are held fair and honest.
Elections are schools for educating Public opinion. Education has nowadays spread and is
spreading far and wide. Each candidate for the election should prepare his manifesto
(declaration of policy) and write down what he intends to do if he is selected. A special
committee should examine the manifesto and if the facts are correct it should be published for
the voters. Then the candidate may works his way on the manifesto. The public service
committee clearly notifies that canvassing (requesting for vote) directly or indirectly
disqualifies a candidate. Similarly those who want to be appointed as examiners are not
allowed to canvass vote.
The candidate may have their own propaganda ( * ), but no candidate should cause
Bar ( . ) +). or belittle ( / ) ) the other in doing that. If he does, his
candidature must be cancelled.

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He may extol (! & & & ) his own capacity, ability, his experience etc. in any
way he likes.
He may advertise or stick posters to house walls or have cinema slides exhibited at the
show.
He may hold meetings with loud speakers.
He may distribute leaflets.
He may have his propaganda, but if he belittles any other candidate in any way, he must
go.
If he or his supporters makes noises or cause disturbance in any way in his opponent’s
propaganda he must be disqualified.
Elector’s voice comes from his heart, and not out of feelings but out of deep thinking
and decision.
If he is coerced or threatened it is not his voice that votes. If he is considered to fit vote,
he must vote on his own judgment otherwise his voting is not his voting but it is the
voting of the candidate himself.

Q-5 Legal Profession and Social Contribution.

ANS:-

Legal profession is noble profession. It is learned profession because it calls for the
high noble conduct. Every member of legal profession is an officer of the court and hence,
should help the court in administration of justice. He should be honest and respectful to the
court and he should always remember that the judge is the presiding deity (god) of the temple
of justice. Even if the ruling of the court is erroneous or irregular, he should maintain a
respectful attitude towards the court. He should not take advantage of personal relations with
the judge. Being an officer of the court he should never try to mislead the judge in any fact or
law and should not unnecessarily waste the time of the court by delay tactics.
A lawyer should remember that he owes a duty to his client. He ahs to represent his
client’s cause by tooth and nail. It is his duty to be loyal and faithful to his client and to
preserve (to keep safe) the confidence of his client. If he finds that his client’s case is hopeless
and a settlement would be better it is his duty to advise his client to make a settlement and
persuade (cause to believe) him to do so. He should remember that it is a noble profession
with public service as motto and not a business for making money.
A lawyer’s attitude towards his fellow-lawyer must be courteous and friendly to wards
a young lawyer starting his career. He should not indulge ( 0 ) in unhealthy competition
with the fellow-brothers. He must not steal another’s client and encroach upon the profession
of another. A lawyer cannot advertise himself’ is a feature, which distinguishes a profession
from a business.

As a servant of society and officer of the court,

It is his duty to assist poor litigations.
He should render services for really needy and poor.
He should never forget to protect the defenceless.

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Q-6 Human Rights.

ANS: -
The General Assembly of United Nations Organization (UNO) has issued Declaration
of Human Rights on 10th Dec.1948. Its Preamble declares that recognition of the inherent
dignity and of the equal rights is the foundation of justice, freedom and peace.
≈ Article-1 provides that all human beings are born free and equal in dignity and rights.
Article-3 declares that everyone has a right to life, liberty and security.
≈ Article-5 provides that no one shall be subjected to torture or cruel or inhuman
treatment.
≈ Article-4(1) of the American Convention Of Human Rights, 1969 declares that every
person has the right to have his life respected and his right shall be protected by law.
≈ Under Article-5, the right of every person to have his physical, mental and moral
integrity respected is recognized.
In India, the essential human rights are contained in Part-3 and Part-4 of the constitution of
India. Our Fundamental Rights and Directive Principles are nothing but the declaration of
human rights.

Our preamble declares human rights. It means there will be justice, social, economic
and political, equality of status and opportunity and to promote them fraternity (brotherhood,
( * ) assuring the dignity of the individual. Article-21 of our constitution provides
protection of life and personal liberty of freedom of person. According to Claire L’Heureux
Dube of the Supreme Court Of Canada: “Human rights are yardsticks against which all
persons must measure their conduct and that of their governments and public officials, and
against which the global community as a whole must measure its progress”.
Article-21 of Indian Constitution cannot be denied to under trials, convicts, except
according to the procedure established by law. The action of the State must be right, just and
fair. The custodial crime is an insult to the human dignity. Rape is also an offence against
human rights and compensation can be ordered. When the train did not stop on pulling the
chain when the dacoits ( $ " ) murdered the victim’s wife, it was held as an offence against
the human dignity.
In D.K. Basu V. state of W.B. it has been held that custodial torture (
) is a naked violation of human dignity. Whenever human
dignity is violated, civilization takes a step backward.
In Premshankar Shukla’s case, that no prisoner shall be handcuffed ( )")
routinely. If the prisoner is handcuffed without there being any justification, it would
violate (/1 2 ) Article-14 and Article-19.
In Vishakha’s case, the Supreme Court recognized the need to alter systematic
violence against women. It acknowledged the sexual integrity of woman as a basic and
fundamental right. Violence against women is an offence against human dignity and a
violation of human rights.
The entire human rights jurisprudence is founded on the chapter on Fundamental Rights and
chapter on the Directive Principles of State Policy. That jurisprudence has also been deeply
influenced by the international human rights norms first set out by the United Nations in
Universal Declaration of Human Rights in 1948.

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The World Conference on Human rights was held in Vienna in 1993 to deliberate on
the issue of elimination of discrimination on the ground of sex. The Women’s World
Conference was held in China in 1995. Article-14 of the Constitution has accepted the right to
equality. Therefore, all human rights, conferred by the Constitution of India on every person,
are available to woman also.

Q-7 Legal Education in 21st Century.

ANS: -
Advocacy to law is a legal profession and it is a noble profession. Because it is nothing
but an attempt for discovery of truth. It is said that within first post-independence 10 years in
some parts of the county, lawyers did not use to charge for their services. Whatever might be
paid to them was accepted. It was never considered to be a business. It is a matter of pride that
our most of the freedom-fighters were lawyers, like Mahatam Gandhi, Motilal Nehru,
Jawaharlal Nehru, Dadabhai navroji, Dr. Rajendra Prasad.
After independence, Supreme Court of India at Delhi and High Court for nearly each
state at state capital were established. To be good lawyers requires certain qualities like
patience, preparation of case, good presentation, courteous behaviour etc. as legal profession
in India is a British legacy; it has also inherited a code of Ethics for lawyers and the judges.
Legal profession and legal education in India, both are facing certain challenges. It is
understood that legal profession is not taken as seriously, as it should have been. Lawyers do
not attend the courts well prepared either in facts or in law. They remain indifferent for the
cause of their client. There is no accountability on their part. Often they go on strikes without
taking any care of their client’s case.
In 21st century, the lawyers are liars. It is the main function of the lawyers to paint as
white and white as black. The represent the false cases and fabricate false evidences. The real
function of the lawyer is to represent his client’s case. Only the court can decide whether that
case is right or wrong, good or bad, just or unjust. But on the other hand, the lawyers are true,
the complexities of laws and the rules of evidence have made the task easier for the lawyers.
They have to create complications that they can do very easily in the already complicated fibre
of law and justice.
Gandhiji found that legal practice is far away from morality and therefore gave it up
completely. The lawyers must cherish the ideal of Gandhiji. They must not forget that the
ultimate end of their profession is to see that justice prevails in the 21st century.
≈ In Mahavirprasad singh V. Jacks Aviation Private Ltd. A lawyer had kept the case
papers with him and he was not attending the curt regularly. He pleaded that he
remained absent in response to a call of strike by Bar Association of Delhi. It was held
that it was his professional misconduct.
Bar council of India has prescribed a code of ethics. But there are number of cases of
professional misconduct. For example: -
≈ D. S. Dalal V. State Bank Of India case: - A lawyer was held liable for
misappropriation of the amount of fee and for not presenting the case papers in the
proper court.
≈ In R. D. Saxena V. Balram Prasad Sharma’s case: - A lawyer was held liable for not
returning the case papers to his client.

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In the 21st century, cases of professional misconduct and indiscipline among lawyers have
increased. In every state of Bar Council, a disciplinary committee works to meet with such
cases. The Bar Council of India is also attempting to train lawyers in the field of law.
Legal education in India is in a poor state. For the students, it is a second choice. This is
a professional course. Lawyers should be well prepared as other professional men like doctors
and engineers. But this is not the case in India. Attendance in law colleges is a big problem.
The Bar Council of India is keen to make improvement in the standards of legal education. It
has restructured the LL.B syllabus and it has also proposed to start 5 year law course in place
of 3 year law course. Because there is no quality in the standard of legal education, there is no
quality among lawyers and the judges. It implies that the legal profession and the judiciary
have to suffer from quality point of view.
Admissions should be strictly on merits to upgrade the standard of legal education.
Apart from structural changes some other changes should be made to improve the quality. For
example, viva and practical training may be introduced. Attendance must be enforced.
Assessment of the students should be made 2-3 times during the academic year. It is true that
there are challenges before legal profession and legal education in India. But by combined
efforts, it is not difficult to meet them.

Q-8 Law in Changing Society.

ANS:-

According to Marxist doctrine, lies in this belief that the root of all social evil is
classism; social classes can, and must, be suppressed by prohibiting appropriation of
productive forces and by putting them at the disposal of all for common interest. In this
communist society all coercion will be needless: state and law, the aim of which is to assure
the compulsion, necessary in their societies, will become useless and so disappear.
Man will once again be free. He’ll be his own master and will be himself because he
will no longer have to sell his labour power to the profit of a ruling class exploiter. The rules
of the conduct in future society will have the same character as those of primitive society; they
will be moral rules, customs, technical precepts and forms of habitual behaviour.
Public services, such as health, education, transportation, communication and
policing will be assured by all citizens in truth.
Society will be one of complete quality and economic and social liberty.
Its members will be equal because they will be provided for, not according to
their capacities, but according to their needs.
They will be free because they will not be subject to any compulsion.
Society will no longer be democratic because it will be subject to the rules of nobody,
not even that of the people as whole with the disappearance of law and the state, democracy
will also vanish ("34 disappear). There will be a reign, but over things, not persons.
In this society, there will be economic as well as social equality.
Nobody will be servant and nobody will be master.
Nobody will be employer and nobody will be employee.

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Q-9 Public Interest Litigation. ( & ' " )

ANS: -
Public Interest Litigation in India has taken deep rots. Some jurists call it “Social
Action Litigation”. The concept of Public Interest Litigation had its origin ( -') in U.S.A.
The concept of “Locus Standi” was liberalized in the interest of justice. It means that
“Cause of action”. Lord Denning is the strong supporter of PIL. Where there is a public
wrong, there should be a public action instead of an action by a private person. It is a
constitutional principle that, if there is good ground that a government department or a public
authority is transgressing ( (& ) the law, the injured person or any one can draw
the attention of the courts. The Supreme Court has said that Public Interest Litigation (PIL)
has said that PIL is a golden master key which can provide speedy justice to the poor and
downtrodden ( *) ).
PIL has made a good progress in India, but it is far behind than that of U.S.A. In U.S.A.
public interest lawyers are very successful in areas such as—
Protection of environment
Consumer interests
Political reforms
Civil rights
Prisoner’s and mental patient’s right etc.
It aims to protect rights of the poor who because of their economic backwardness cannot
approach the court.
In S.P.Gupta V. Union Of India: The Supreme Court Held that the traditional rule of
‘Lucas Standi’ does not hold good. Even a letter addressed by a public-spirited man
can be treated as a writ ( $ " " % %) petition. But before granting
any relief, the court must see that certain conditions are satisfied. First, the petitioner
must be acting bona fide. He must not be acting for personal gain. Second, when legal
injury is caused to a person, such person is by reason of poverty or disability, unable
to approach the court.
In Ratlam Municipality case: The question was whether by affirmative action a court
could compel (to force, ) ) a statutory body to carry out its duties of
sanitation facilities. This question was answered in the positive.
Mr. M.C. Mehta, an advocate, human rights activist and an environmentalist, has filed
nearly 15-20 PILs for the protection of environment and human rights of children.
In M.C. Mehta V. Union Of India: The Supreme Court has ordered a ban upon the
use of 15 years old vehicles in Delhi to prevent air pollution.
In M.C. Mehta V. Union Of India: A PIL was filed to prevent the damage to the
world famous the Taj Mahal from the smokes coming out of certain industries in
which coal was used. The Court ordered such industries to close down.
Zahira v. state of Gujarat: One PIL was filed by citizens for Peace and Justice,
Vadodara’s Fast Track Court Judgment Dt. 26th June, 2003, acquitting all 21 accused
of the Best Bakery carnage (! ! ) on 1st March, 2002 in Vadodara. Certain eye
witnesses were declared hostile and the conduct of the Public Prosecutor was adverse
to the interest of the case. The Supreme Court held that there was no fair trial in the
case ordered the retrial outside Gujarat to Maharashtra.

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Q-10 Fundamental Rights.

ANS: -
The Preamble to the Constitution of India, social Justice is one of the goals. Right to
property was a fundamental right as per Article-19 (1) (g). At the same time it was provided in
Article-31A, that the Government could acquire private property for public purpose.
In Golaknath case, it was held that the Parliament had no authority to restrict the fundamental
right. It was held that this decision would serve as a hindrance to a social change.
But thereafter,
In Keshvanand’s case, it was declared that the Parliament has an authority to restrict the
fundamental right but so as not to disturb the basis structure of the Constitution.
Right to property has been removed from the area of fundamental rights and is now
placed as Article-300A in the Constitution of India.
Article-21 is a fundamental right and it is drafted in a negative language. The right to
life and personal liberty is the most fundamental of all rights. This right includes many other
rights. The scope of Article-21 has been defined in one case by the Supreme Court thus: “it is
the fundamental right of every one in this country to live with human dignity, free from
exploitation…. It must include protection of the health and strength of the workers, men and
women and children against abuse, opportunities and facilities for children to develop in a
healthy manner and in conditions of freedom and dignity, educational facilities, just and
human conditions of work and maternity relief. These are the minimum requirements which
must exist in order to enable a person to live with human dignity and no state….has the right
to take any action which will deprive a person of the enjoyment of these basic essentials.”
(1) The purpose of Fundamental Rights is to free all citizens from unreasonable
restrictions.
(2) The Fundamental Rights are enforceable by the Supreme Court and the High Courts.
(3) The Fundamental Rights constitute essential features of constitution.
(4) The Fundamental Rights are fundamental in the governance in making laws.
(5) In Unni Krishan case: the court has recognized a fundamental right to education under
Article-21. Some rights are involved in this case are below: -
(a) Right to privacy.
(b) Right to human right.
(c) Right to travel abroad.
(d) Right to speedy trial.
(e) Right to free legal aid in Criminal trials.
(f) Right against delayed execution.
(g) Right against custodial execution.
(h) Right to shelter.
(i) Right to health.
(j) Right to pollution free environment.
(k) Right to freedom of Press.
(l) Right of children education.
(6) Right to know is also recognized under Article-21.
(7) Right to claim compensation for violation of Article-21 has been recognized.
Fundamental Rights: -
(1) Right to vote. (Art-326)

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(2) Right to against discrimination in public places (Art-14 and 15)

(3) Right to hold public office and employment. (Art-16)
(4) Right of the freedom. (Art-19)
(5) Right to equal protection before law. (Art-14)
(6) Right to life and personal liberty and right against arbitrary arrest. (Art-21)
(7) Right against exploitation. (Art-23)
(8) Right to freedom of religion. (Art-25)

Q-11 Parliamentary Democracy. " (

ANS: -
‘DEMOCRACY’ is the art of disciplining oneself so that one need not be disciplined
by others.
Abraham Lincoln interprets Democracy as –Government of the people, by the people,
and for the people, but that too can only safely run on the strength of national character of
people. India is the world’s biggest Democracy in terms of population. The Constitution of
India guarantees, Fundamental Rights-particularly, Freedom of Press and Freedom of Speech,
and Freedom of Movement, etc. to every individual irrespective of caste, creed
( ), culture, religion, social or economic status, sex or other such
discrimination ( .+ ).
Democracy in India strictly upholds the will of people, with every citizen fully entitled
to participate at every level in Government or parliament. It is the function of democratic
leadership to associate the large number of people in this process and our leadership has
observed this principle right from the beginning. The concept of democracy is now new to the
Parliamentary section.
We have adopted democratic institution of free election, fundamental rights and
freedom democratic system of U.K. There is a two-party or three-party system in the Western
Countries which is consistent with the size of the country. However, India adopted
parliamentary democracy under conditions of adult suffrage ( ) and mass illiteracy but with
strong faith in it. It is a refined form of democracy but has been working successfully. It
permits dissent (disagreement," ) and opposition and the existence of many parties.
Without freedom of expression parliamentary or any democracy cannot work.
Politicians attract the voters by golden-slogans at the time of election. But they do not
stand jointly against ruling party. Politicians have no social conscience ( .+) and
nationalism. Today, politicians have made the elections a mockery (! $ ! ) ) democracy
and Indian democracy has become of the leaders and for the leaders.

Q-12 Equality Before the law. Or right to Equality under our Constitution.

ANS: -
Article-14 of Indian Constitution provides that the state shall not deny to any person
equality before the law or the equal protection of laws within the territory of India. Article-14
is not limited to citizens only. It applies to any person. Both individuals and juristic persons
are eligible for the benefit of Article-14.

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Article-15 prohibits discrimination on grounds of race, religion, caste, sex, place of

birth.
Article-16 provides equality of opportunity in matters of public employment.
Articles-17 abolishes untouchability ("5 64 ).
Article-18 abolishes titles.
Article-7 of Declaration of Human Rights provides that ‘all area equal before the law
and are entitled without any discrimination to equal protection of the law’.
‘Equality before the law means that among equals the law should be equal and should be
equally administered (managed). The violation of one leads to the violation of another.

There are certain exceptions to the rule of equality. For example: -

Article-361 provides that no process for the arrest or imprisonment of the President or
the Governor of a state shall be issued by any court during his term of office. In fact,
all persons are not alike or equal in all respects. The Supreme Court has held that ‘the
equal protection of the laws does not mean that all the laws must be general in
character and universal in application and that the state is no longer to have the power
distinguishing and classifying persons or things for the purpose of legislation.
But a classification to be valid must be reasonable. For example: - the Indian
Contract Act has classified two categories one is adult and another is minor. The basis
of classification is the age. It has a relation to the capacity to enter into a contract. This
is a reasonable classification and that’s why it is valid.
Cases:-
In Nargish Mirza case: Deferent conditions of service were prescribed for air-hostesses
and for their male counter-parts ( ) " ). It was argued that there was no violation
(/1 2 ) of equality as the air hostesses were classified on the basis of their gender. The
court struck down some of the service conditions of the air-hostesses on the ground that
they were unreasonable.
In Vishakha’s case: The Supreme Court considered sexual harassment ( as a
violation of the fundamental right to gender equality and the right to life and liberty.
In Indra Sawhney V. Union Of India: The Supreme Court held that reservations under
Article-15 must be reasonable and cannot override (" & national interests.

Articles-14 to 17 of the Constitution, spell out some specific aspects of the rights to
equality.
Articles-15 and 16 have a direct nexus ( ) ) with the customs and traditions and social
norms ( ) prevailing in the country.
Article-17 provides for the abolition of untouchability.

Q-13 Constitutional Review.

ANS: -
Our constitution provides for the establishment of a democratic rule. The constitution is
the fundamental law. The constitution is superior law unchangeable by ordinary means. The
constitution controls every act repugnant (" & .+) to it. If an act of the legislatures
were to be repugnant to the constitution, it would be void. If a law be in opposition to the
constitution, the court must decide the case by seeing only the constitution. As any modern

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constitution speaks, there are 3 branches viz. Executive, Parliament and the Judiciary.
According to Miller and Howell, Court is an active participant in Government functions. There
are the fundamental rights of constitution below: -
(1) Right to equality: -
(a) Equality before law or the equal protection of the laws within the territory of
India. (Art-14)
(b) Prohibition of discrimination on grounds of religion, race, caste, sex, or place of
birth. (Art-15)
(c) Equality of opportunity in matters of public employment. (Art-16)
(d) Abolition of untouchability. (Art-17)
(e) Abolition of titles- no citizens of India shall accept any titles from any foreign
state. (Art-18)
(2) Right to freedom: -
(a) Protection of certain rights regarding (Art-19): - freedom of speech and expression,
assemble peaceably and without arms, to form associations or unions, to move freely
throughout the Territory of India, to reside and settle in any part of the Territory of India, and
to practice any profession, or to carry on any occupation, trade or business.
(b) Protection in respect of conviction for offences. (Art-20)
(c) Protection of life and personal liberty. (Art-21)
(d) Protection against arrest and detention in certain cases. (Art-22)
(3) Right against Exploitation: -
(a) Prohibition of traffic in human beings and forced labour. (Art-23)
(b) Prohibition of employment of children in factories, etc. (Art-24)
(4) Right to Freedom or Religion: -
(a) Freedom of conscience and free profession, practice and propagation of religion.
(Art-25)
(b) Freedom to manage religious affairs. (Art-26)
(c) Freedom as to payment of taxes for promotion of any particular religion. (Art-27)
(d) Freedom as to attendance at religious instruction or religious worship in certain
educational institutions. (Art-28)
(5) Cultural and Educational Rights: -
(a) Protection of interests of minorities. (Art-29)
(b) Right of minorities to establish and administer educational institutions. (Art-30)
(c) Compulsory acquisition of property. (Art-31)
(14) Woman Empowerment: -
According to Section-10 of the Indian Judicial Act, 1860, a woman means any human
female of any age. Women are having full energy of handling any type of the task but they are
having patience looking into this aspect it is said “women is the Goddess” it means ‘Nari to
Narayani’. In Vedas, women are designated as energy.
Women can take all the responsibility of the house and hence they married women are
called housewives. There are all findings and old sayings. Now the era has changed. You will
find so many women as politician, administrators, manufacturers, professionals, teachers,
principals, and collectors, ministers and even prime ministers and presidents. Also you have
cases where women played roles of scientists, monetarist, and astronauts. Women have ability
to conceive everybody this is nothing but a natural gift of patience and motherly attitude.

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Women play role of a daughter, sister, wife and mother. Each and every stage she kept under
the dependent of man.
1) A daughter is dependent under the control of her father.
2) A sister is dependent under the control of her elder brother.
3) A wife is dependent under the control of her husband.
4) A mother is dependent under the control of her son in old age.
Being kept under the control of man throughout her life, woman is quite cool and cal in. And
hence you will not find any woman with bald. Though they are bald-less they are found bold
in.
Madass Quiry found that radium is most energy producing. Shelliride is the first
American woman astronaut. P.T. Usha became the champion of the athletics. Sharma swaraj,
Mayavati, Rubdi Devi etc., are the state of chief ministers. Bhandir naik hold the responsible
posts of prime Ministers. Even some women took part in armed forces and security services.
So we cannot call them “Abla” (Energyless)
If women are empowered they will also prove is the much more powerful than men e.g.
Mrs. Indira Gandhi. She was the first administer lady introduce emergency in India. Not only
that but she arrested the big-guns of politics such as Miraji desai, Jaypraksh narayan etc. She
took a decision of declaring war against Pakistan.
Women empowerment will necessary become fruitful because woman takes decision calmly
and patiently. Woman can act as Narayani by making the people’s welfare and Ranchandi by
creating the injuries to the opponent country. She is also able to convince and promotes to look
in the welfare of the society. Further, it is said that the problems always come with women. If
the women the be given the responsibility of administration then they will face the situation
and also being conversant for daring with all age types are able to solve the problems. It is said
that if you want to arrest a thief try to empower another thief for arresting him.
Take an example of Phulan Devi. She was a deceit. But she took part in politics and she
entered as an elected member of the parliament. If women the entrusted power, she will
definitely enlighten her image and she will definitely try to prove herself another lady or
another Razia or another Ahalya or another Indira Gandhi.

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