CHAPTER NO. 01 LEGAL CONCEPTS LEGAL LANGUAGE II

CHAPTER NO. 01

LEGAL CONCEPTS

            CIVIL AND CRIMINAL:

            All legal wrongs can broadly be classified into two heads, Civil & Criminal wrong.

            The distinction between the two is not to be found in the nature of the act itself as is offence supposed by persons. The same act may be a Tort (Civil Wrong) and a Crime (Criminal wrong). Thus, assault and defamation are Torts and the proceeding can be file by the aggrieved party in a civil court for covering compensation from the doer. But this act is also crimes and a criminal complaint can be file in a criminal court for punishment of the offender.

           

            If criminal proceeding can be file in respect of that act it means, that the act is a crime or an offence. If on the other hand the act is capable of being followed by proceeding in a civil wrong. If both Civil and Criminal Proceedings can be filed in respect of the same act then it is both a civil and criminal wrong.

            The procedure followed by civil court in a civil proceeding is quite different from that followed by Criminal court in the case of a crime. The former is regulated by the Civil procedure code 1908 (CPC) and later is governed by Cr. Pc 1973. The outcome as well as the terminology used in both the proceeding is also different. In a civil suit the Plaintiff can recover damages or compensation from the defendant. He can also get an order for specific performance or injunction. In a Criminal case the complainant places evidence before the court to show why the accused should be punished, by way of jail sentence or a fine or both. Again the accused in a criminal proceeding may be found guilty by the court where as the defendant in a civil suit may be found liable to pay damages. Also the two sets of courts are also different civil courts are presided over by judges. Whereas criminal is presided by the magistrate.

An appeal court may bear appeal from civil court as well as criminal courts. All High Courts and Supreme Court hear appeals in civil and criminal matters

·         CLASSIFICATION OF CIVIL WRONGS:

a.    Breach of contract

b.    Breach of trust

c.    Torts – assault, battery, nuisance, trespass (civil wrong) negligence.

Examples:

¨      Breach of contract:

¨      Breach of trust:

¨      Torts:

·         COMMON LAW AND EQUITY:

Rules of natural justice.

Maxims:

a.    Nemo debet esse judex in propria causa – ( No man can be judge in his own cause)

b.    Audi atterem parterm – (a man cannot be condemn without being heard in the matter)

c.    Speaking order.

 

v  Nemo debet esse judex in propria causa:

The basic requirement of natural justice lays down that no

man can be judge and the prosecutor in the same case, in other words, he who judge must be impartial and free from any kind of bias.

In applying this maxim it is often said that it is not enough

that justice is done, it is also necessary that justice is seen to be done. This means that judge must be totally neutral and unbiased. Now bias can be divided in to four types.

§  Personal Bias:

Ranjeet Thakur Vs union of Union of India.

In one case an officer was dismissed from the army on the ground of disobeying his superior. An inquiry committee was set up to conduct an inquiry and the very officer whose order he was alleged to have disobeyed was the member of this committee. The Supreme Court set aside the report of inquiry committee in the ground that inquiry was vitiated by bias.

§  Pecuniary Bias:

If the adjudicator has a pecuniary _______________ in the

Subject matter of the dispute he cannot decide the matter. His order would be set aside even if it is shown that his decision was not in any way affected by such interest.

Mohapatra & co. Vs State of Orissa.

When a committee was set up to select book for educational

Institution and it termed out that some of the committee members were themselves authors of some books put up for selection. The Supreme Court set aside the list of books recommended by the committee. As observed by court it is not the actual bias in favor of author members that is material but the possibility of sub bias.

§  Official Bias:

Official bias is a bias as regards the subject matter to be

Impartial the adjudicator must not have any interest in the subject matter of the dispute being adjudicator. Thus, if a lawyer has represented a client in a case and he latter becomes a judge he cannot hear the particular case and pass orders in that litigation.

§  Judicial obstinacy (Bias):

Judicial obstinacy also means judicial bias thus in one case

judge X heard a write petition file by a government servant and passed an order that he should be immediately given a promotion. This order was set aside in appeal. Later the same employee filed a fresh petition for payment of salary and other benefits in terms of the order passed by the judge acts. (That is the order which has been set aside in appeal). When this second petition was dismissed he filed an appeal which was heard by a bench of two judges one of them being X. the bench allowed the appeal and ordered certain arrears of salary to be paid.

                        When the matter rich the Supreme Court the order of the bench was set aside in the ground of a form of bias termed judicial obstinacy. The court observed that if a judge decision is set aside, the judge must submit to such a decision, he cannot rewrite overruled judgment in the same or collateral proceeding

State of West Bengal Vs Shivananda Pathak.               

RULE OF INTERPRETATION:

Rule of interpretation are divided into two parts:

1.    Interpretation of statue

2.    Interpretation of contracts

                            I.      INTERPRETATION OF STATUE:

According to salmond, interpretation of statue is the process by which the court seek a certain the meaning of legislation, “through the medium of the forms in which it is expressed”. In other words when a apling the law passed by the legislature, the court seeks to give effect to the words used by the legislature in the same sense as was intended by legislature. It is a function of legislature to make the law and that of the courts to interpret and apply such laws.

The following are the important rule of interpretation of statue, generally followed by courts in most legal system –

a.   Literal rule of interpretation:

Under this rule a judges is bound to apply the law as it is worded. The word used in the statue must be literally applied, nothing can be added and nothing can be subtracted. This is also refers to as “Litera Legis” i.e literal construction of law. When this rule is followed the judge cannot look beyond the literal legis.

            As a rule, judges have to follow the letter of law. They are not at liberty to add to subtract or modify to the letter of the law only because they feel that the Sententia Legis (Intention of Legislature) is not completely or correctly reflected in the words used in the statue.

 

b.   Mischief Rule of Interpretation:

Under this rule the judge may look at the law which

Prevail before the act was passed to find out what mischief the act was intended to remedy. The judge can then interpret the words used in the act in such a way as to suppress the mischief and advance the remedy.

Thus the Bombay High Court has take the view that if it is relevant and material to consider the circumstance in which an act was passed the court may look at the debates which took place in the legislature before the act was passed. Similarly the statement of object and reason of the act may also be considered when interpreting the provision of the act.

c.   The Rule of Nosciter a Sociss:

The Latin maxim “Nosciter a Sociss” has been

translated by Lord McMillan as the meaning of word is judge by the company it keeps, Henry Fielding express in it almost identical words, a word is known by the company.

Applying it rule if the meaning of the word used in a particular section of an act is not clear the judge must look at the rest of the section in which the same word appears. He may also ascertain the context in which the same word is used even in other sections of that act and in some cases a reference may also be made to earlier legislation dealing with the same subject matter where the same word also may be used.

 

d.   Rule of “Expressio Unius est exclusio alterius”:

The Latin maxim lays down that if one thing is

specifically mention by implication, other similar things are excluded, thus if one section an act uses the word “Children” and in other section it refers to bays the legislative intent would be that, the later section almost apply to all children but to bays.

e.   Golden Rule:

Often the words used by legislature may be

Ambiguous. In many cases if a strict and narrow rule of interpretation is applied it would be absurd result. Such a logical defect may have been created by bad drafting or accident or even placing a comma at a wrong place. As observed by Lord Demin where a defect appears in a language of statue a judge cannot simply fold his hands and blame to the draftsmen.

            In such cases where certain words can be given a sensible meaning or an absurd meaning the courts would naturally lead towards the first alternative.

            As observed by Lord Reid, “when an interpretation brings about a starting and inequitable result, this may lead the court to seek another possible interpretation which will do better justice”.

            Applying this principle courts have held that the words may used in an act may properly have to be construct to mean shall, likewise the word and has some time been interpreted to mean or vice-versa.

            The golden rule has been applied by the court in the following circumstance:

a)    When there is an ambiguity in the words used by the statue.

b)    Where there is an ambiguity between two provisions in the same statue.

c)    Where there is a clerical error in the statue.

d)    When the legislature has not made a provision in the statue for that particular situation which is before the courts.

INTER PRETATION OF CONTARCT:

            Several years ago the court prefer to interpret the words of a contract in a strict lateral and grammatical sense in discovering the real intension of the parties the court refuse to fill in any gap or to imply any term which was not there. The court would not look in the actual minds of the parties but only at the actual words used by them.

PARDINE Vs JANE –

            In an old English case a house was given on rent for a fixed term of 21 years. During this period the house was forcibly occupied by enemy troops for three years and the tenant could not used it during this period. When he file a suit containing that he was not liable to pay rent for those 3 years, the court rejected his claim since he had agreed to pay the rent for 21 years, he was bound by his terms of contract. It was open to him to have provided for contingency such as this in the contract itself but as he had not done so, he was bound by is written words.

            This theory that court had no write to add to or vary a written contract has been given up in course of time and Lord Denim has championed the theory that court can imply reasonable term in the contract to do full justice in the matter.

LIVER POOL CITY COUNCIL Vs IRWIN:

            A multi-storey building has been constructed by the City Council and flats were let out to several tenants. The Council itself retained control of lift and stair case. Some years later this fails into disrepair and as the tenants could not use the lifts, they had to walk-up the stairs in the dark. The question before the court of appeal was whether there was any obligation on the council to repair them in the absence of specific laws to that effect in the contract between Council and the tenants.

            The majority of the judges held that there was no such obligation. Lord Denim however gain a strong dissenting judgment observing that it was an implied term in the contract that the Council would keep the lift and the stair case reasonable fit for used by the tenant, his family and his visitors.

            When the matter went in appeal to the house Lords, Lord Denim views that the council under implied obligation to take reasonable care of lift and stair case safe was accepted. However the house of Lord declines to accept his general proposition about there being an implied term in the contract as regards the repairs.

 

PRECEDENTS

DECLARATORY THEORY                                  AUTHORIATIVE

OF PRECEDENT                                                          &

                                                                   PEARSUASIVE PRECEDENT

PRECEDENT:

         

            If each judge were left to himself to decide cases without reference to similar cases decided in the past the result would be utter conclusion and chaos. Uniformity and certainty can be achieved only when judges follow as far as possible the law led down earlier by their fellow judges.

            A precedent is the statement of law formed in the judgment in the superior court which decision has to be followed by all inferior courts. The rule of law is most significant feature of energy democracy and certainty and continuity are necessary ingredient rule of law.

            Doctrine of stare decisis (Binding forces of precedent) is also reflected in Article 141 of constitution of India which declares that law laid down by Supreme Court is binding on all courts in India.

DECLARATARY THEORY -

            According to this theory, a judge never makes the law he merely declares what the law is. The function of the judge is merely to apply the law and not to play a creative role in making the law. This theory is however, the process of application of law. Quite often a judge is faced with a unique situation; a situation has never arisen in the past. In such cases he lays down an entirely new principle and to that extent, he widens and extends the law. He develops a new rule by analogy and by deduction. The declaratary theory breaks down in such cases.

AUTHORITATIVE AND PERSUASIVE –

            An authoritative precedent is one which a judge must follow whether he approves of it or not. It is binding on him and he cannot use his judicial discretion not to follow it thus a judgment of Supreme Court is binding on all courts in India. A judge of Bombay High Court cannot disapprove or disagree with it. It is binding on all courts until it is set aside by the Supreme Court itself.

            A persuasive precedent on the other hand is one which has only a persuasive value and is not binding on the court. The court is under no obligation to follow it. And has the discretion not to apply it.

            However the court would normally takes such a precedent in the consideration and such wait to it as deems fit. Thus the judgment of Gujrat High court would have only persuasive efficacy cited before the Bombay High Court.

RATIO DECIDENDY  -

            Every judicial decision has two aspects:

a)    Concrete decidian which is binding on both the parties.

b)    It also contains the judicial principle on which concrete decision is based, one which operates as a precedent, one which has the force of law, and one which bind with future litigants. This is called the Ratio Decidendy of the case.

Thus a suit is file against a minor for enforcing a mortgage signed by him as a minor cannot enter into a valid contract. The court dismisses a suit here dismissal of suit is the concrete decision which binds both the party to the suit. However, the legal principle the decision is based namely that minor agreement is totally void can be regarded as Ratio Decidendy.

            OBITOR DICTA –

Obitor Dicta are things said by the judge in the judgment which are not really necessary for the decision in that case. In other words they are things said by bay. In other words of Chief Justice Chagla, “an obiter dictum is an expression of opinion on a point which is not necessary for the ultimate decision of the case.

            In one case a favorable repeat given by a bank in respect of financial condition of a company turned out to be false. However, there was a disclaimer clause in the report under which the bank disclaimed any liability in the matter in view of this clause the court held that the bank was not liable. However, having said that the court went onto discussion. What the banks liability would have been in such a clause was not there in the report. The entire discussion which was not at all necessary to determine the liability of a bank in a particular case would be regarded as obiter.