ADVOCATETANMOY LAWS OF INDIA

The Constitution of India came into force on 26-1-1950. The meaning and the dynamics of  Indian Law has been changed. For example, as Hyderabad was integrated with the Indian Union and the Nizam lost the absolute power which he could exercise previously, it was no longer within his competence to issue a Firman and make it legally binding on the parties. It may be conceded that before the coming in of the Constitution, the Nizam of Hyderabad practically enjoyed unfettered sovereign authority and however much the various Firmans. After the Constitution came into force the legislative authority undoubtedly vested in State under the provision of Article 385 of the Constitution. Continue reading

The position of the Chief Justice of a High Court in India

Indian Law Encyclopedia

The position of the Chief Justice of a High Court was elucidated in a judgment of a three judge Bench of this Court in State of Rajasthan v Prakash Chand. During the course of the judgment the following broad conclusions were formulated in regard to the position of the Chief Justice:

“(1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals.

(2) That the Chief Justice is the Master of the Roster. He alone has the prerogative to constitute Benches of the court and allocate cases to the Benches so constituted.

(3) That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions.

(4) That till any determination made by the Chief Justice lasts, no Judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the Judges constituting the Bench themselves and one or both the Judges constituting such Bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice.

(5) That the Chief Justice can take congnizance of an application laid before him under Rule 55 (supra) and refer a case to the larger bench for its disposal and he can exercise this jurisdiction even in relation to a part-heard case.

(6) That the puisne Judges cannot “pick and choose” any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice.

(7) That no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice. “

 Recently, a Constitution Bench of Supreme Court in Campaign for Judicial Accountability and Reforms v Union of India held that the principle which was noticed and recognised in the decision of this court in Prakash Chand (supra) in relation to the jurisdiction and authority of the Chief Justice of the High Court “must apply proprio vigore as regards the power of the Chief Justice of India”.

The position of the Chief Justice was reiterated with the following observations:

“The aforesaid position though stated as regards the High Court, we are absolutely certain that the said principle is applicable to the Supreme Court. We are disposed to think so. Unless such a position is clearly stated, there will be utter confusion. Be it noted, this has been also the convention of this Court, and the convention has been so because of the law. We have to make it clear without any kind of hesitation that the convention is followed because of the principles of law and because of judicial discipline and decorum. Once the Chief Justice is stated to be the Master of the Roster, he alone has the prerogative to constitute Benches. Needless to say, neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench.

To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition  of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible. An institution has to function within certain parameters and that is why there are precedents, rules and conventions. As far as the composition of Benches is concerned, we accept the principles stated in Prakash Chand [State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1] , which were stated in the context of the High Court, and clearly state that the same shall squarely apply to the Supreme Court and there cannot be any kind of command or order directing the Chief Justice of India to constitute a particular Bench.”

Chief justice is the Master of Roster

The Chartered High Courts of Allahabad, Bombay, Calcutta and Madras have a long history of over a hundred and fifty years. Each of them has marked its sesquicentennial. Many High Courts are not far behind in vintage. Some are of a recent origin. Over the course of their judicial history, High Courts have evolved conventions in matters governing practice and procedure. These conventions provide guidance to the Chief Justice in the allocation of work, including in the constitution of benches. The High Courts periodically publish a roster of work under the authority of the Chief Justice. The roster indicates the constitution of Benches, Division and Single.

The roster will indicate the subject matter of the cases assigned to each bench. Different High Courts have their own traditions in regard to the period for which the published roster will continue, until a fresh roster is notified. Individual judges have their own strengths in terms of specialisation. The Chief Justice of the High Court has to bear in mind the area of specialisation of each judge, while deciding upon the allocation of work. However, specialisation is one of several aspects which weigh with the Chief Justice. A newly appointed judge may be rotated in a variety of assignments to enable the judge to acquire expertise in diverse branches of law. Together with the need for specialisation, there is a need for judges to have a broad-based understanding of diverse areas of law. In deciding upon the allocation of work and the constitution of benches, Chief Justices have to determine the number of benches which need to be assigned to a particular subject matter keeping in view the inflow of work and arrears.

The Chief Justice of the High Court will have regard to factors such as the pendency of cases in a given area, the need to dispose of the oldest cases, prioritising criminal cases where the liberty of the subject is involved and the overall strength, in terms of numbers, of the court. Different High Courts have assigned priorities to certain categories of cases such as those involving senior citizens, convicts who are in jail and women litigants. These priorities are considered while preparing the roster. Impending retirements have to be borne in mind since the assignment given to a judge who is due to demit office would have to be entrusted to another Bench when the vacancy arises. These are some of the considerations which are borne in mind. The Chief Justice is guided by the need to ensure the orderly functioning of the court and the expeditious disposal of cases.

The publication of the roster on the websites of the High Courts provides notice to litigants and lawyers about the distribution of judicial work under the authority of the Chief Justice. This Court was constituted in 1950. In the preparation of the roster and in the distribution of judicial work, some of the conventions which are adopted in the High Courts are also relevant, subject to modifications having regard to institutional requirements.[ Asok Pande Vs. Supreme Court of India through its Registrar and Ors.  in Writ Petition (Civil) No 147 of 2018]

Necessary Party and Proper Party [Indian Law Encyclopedia]

Indian Law Encyclopedia

A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate the matter, in favour of or against whom the decree is to be made. However, if a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him against the wishes of the plaintiff, the ‘dominus litis’.

Relying on Kasturi vs. Iyyamperumal, 2005 (6) SCC 733, Sumtibai vs. Paras Finance Co., 2007 (10) SCC 82, Ramesh Hirachand Kundanmal vs. Municipal Corpn. of Greater Bombay, 1992 (2) SCC 524, Anil Kumar Singh vs. Shivnath Mishra, 1995 (3) SCC 147, the Hon’ble Apex Court held in the decision reported in 2010 (7) SCC 417 (cited supra), that Rule 10 (2) CPC is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. In exercising its judicial discretion under the said rule, the court will of course act according to reason and fair play and not according to whims and caprice.

 It is a well settled proposition of law that the Court has the discretion either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.

 In Ramesh Hirachand Kundanmal vs. Municipal Corpn. of Greater Bombay reported in 1992 (2) SCC 524 and Anil Kumar Singh vs. Shivnath Mishra reported in 1995 (3) SCC 147, the Hon’ble Apex Court has explained that in all the circumstances, persons may be added as parties, if they are necessary or proper parties for the adjudication of the dispute.

 In Mumbai International Airport (P) Ltd., vs. Regency Convention Centre and Hotels (P) Ltd., reported in 2010 (7) SCC 417, the Hon’ble Supreme Court has found thus :

“22. Let us consider the scope and ambit of Order 1 Rule 10 (2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition ca be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10 (2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.”

As held in Ramji Dayawala and Sons (P) Ltd., vs. Invest Import, reported in 1981 (1) SCC 80, reiterating the view of Lords Mansfield in R vs. Wilkes, 98 ER 327, the term “discretion” is defined as follows :

“when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful; but legal and regular.”

 If a plaintiff makes an application for impleading a person as a defendant, on the ground that he is a necessary party, the Court may implead him, having regard to the provisions of Rules 9 and 10 (2) of Order 1 CPC. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party.

In the light of various decisions rendered by the Hon’ble Supreme Court, it is clear that in general, when the plaintiff is a suit, being “dominus litis”, may choose the persons against whom he wishes to litigate and he cannot be compelled to sue a person against whom he does not seek any relief, however, the general rule is subject to the provisions of Order 1 Rule 10 (2) CPC, which provides for impleadment of proper or necessary parties.

Encyclopedia of Criminal Law [Global]

International

Advocatetanmoy Law Library has produced multiple legal encyclopedias touching the subject matters connected therewith to enrich the readers` experience of Law in a lucid manner. The purpose is to provide complicated legal matters to the Online communities and others to provide an all-round view of the universal principles of law and to position them from a particular region. You may also be interested to browse the following important links …

  1. Indian Law Encyclopedia

  2. Company Law Encyclopedia [Global]

  3. Encyclopedia of Foreign Laws

    AND MORE…..

Encyclopedia of Criminal Law [Global]

Introduction

The fundamental principles of criminal jurisprudence is that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between accused may have committed the offence and must have committed the offence, which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognised as a human right which cannot be wished away. Every accused is presumed to be innocent unless his guilt is proved. The Presumption of innocence is human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence.

An accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar of inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arsing from any such faulty investigation ought to go to the accused and not to the prosecution. So also, the quality and creditability of the evidence required to bring home the guilt of the accused cannot be different in cases where the investigation is satisfactory vis-…-vis cases in which it is not. The rules of evidence and the standards by which the same has to be evaluated also cannot be different in cases depending upon whether the case has any communal overtones or in an ordinary crime for passion, gain or avarice. The prosecution it is axiomatic, must establish its case against the accused by leading evidence that is accepted by the standards that are known to criminal jurisprudence regardless whether the crime is committed in the course of communal disturbances or otherwise. In short there can only be one set of rules and standards when it comes to trials and judgment in criminal cases unless the statute provides for any thing specially applicable to a particular case or class of cases. Beyond that we do not consider it necessary or proper to say anything.

List of Words Start with B in Indian Law Encyclopedia

List of law topics & legal articles

Indian Law Encyclopedia

B

BACKWARD CLASS
BAD CHARACTER
BAD DEBT
BAD FAITH
BADLI WORKMAN
BAIL
BAILMENT
BALANCE
BALANCE OF CONVENIENCE
BALANCE SALE CONSIDERATION
BALLISTIC EXPERT OPINION
BANK GUARANTEE
BANK LOAN
BANKRUPTCY
BANKER
BANKER BOOK OF EVIDENCE
BANKING DOCUMENTS
BAR COUNCIL
BAR OF ACQUIESCENCE
BAR OF JURISDICTION
BAR OF LIMITATION
BAR OF SUIT
BAR TO SPECIFIC PERFORMANCE
BASIC FEATURE
BASIC PAY
BASIC RULE OF CONTRACT
BASIC WAGE
BATTERY
BEGER
BEING ILLEGAL
BENAMI TRANSACTION
BENEFICIAL PROVISION
BENEFICIARY
BENEFIT OF DOUBT
BENEFIT OF PART PERFORMANCE
BENGAL MONEY LENDERS ACT
BENGALI CALENDAR
BEQUEST
BEST EVIDENCE RULE
BEYOND REASONABLE DOUBT
BIAS
BIGAMY
BILATERAL
BILL OF EXCHANGE
BILL OF LANDING
BILLS
BINDING NATURE
BIOLOGICAL DIVERSITY
BIRTH AND DEATH
BIRTHRIGHT
BLACKMAIL
BLANK TRANSFER
BLENDING
BLOOD MARK
BLOOD TEST
BOARD
BODY CORPORATE
BODY OF CRIME
BONA VACANCIA
BONAFIDE CLAIM
BONAFIDE REQUIREMENT
BONDED LABOUR
BONDS
BONUS
BOUNDARIES OF STATE
BOVINE ANIMALS
BREACH
BREACH OF PEACE
BREVITY
BRIBERY
BRICKFIELD
BRIDE BURNING
BRITISH INDIA
BUDDHIST LAW OF GIFT
BUILDING
BUILDING BYE-LAWS
BULLION AND SPECIE
BURDEN
BURDEN OF PROOF
BURIAL GROUND
BUSINESS
BUSINESS EFFICIENCY
BUSINESS VENTURE
BUT NOT THEREAFTER
BUY BACK
BUYER AND SELLER
BY STANDARD

Encyclopedia of Foreign Laws

Encyclopedia of Foreign Laws

Encyclopedia of Foreign Laws is a set of collection of foreign statutes and at the same time, it  studies the background of a particular enactment and consequence of such enactment within the domestic field or neighborhood. 

Major Jurisdictions 

Australia

Bangladesh

Canada

China 

Pakistan 

Singapore

United States(USA)

United Kingdom(Uk)


THIS PAGE IS UNDER CONSTRUCTION

Company Law Encyclopedia [Global]

Company Law Encyclopedia

Company Law Encyclopedia is the global collection of the whole mass of  Law-related with Registration of Company, Memorandum, and Articles of Association, Running a Company, Closing a Company, Amalgamation of Company, Takeover, holding patterns, MNCs etc. It will also supply unique and comparative global position of Company Law.

NORTH AMERICA 

SOUTH AMERICA

EUROPE 

ASIA

AUSTRALIA 

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Global Pattern of Companies 

  • Profit making Companies
  • Non- Profiting Companies
  • Banking Companies
  • Non-banking Financial Corporations
  • Capital Market Companies
  • insurance companies
  • Government Companies
  • Multinational Companies
  • Overseas Holding Companies
  • Non-operating  properly constituted Paper Companies

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This Page is under Construction

Abandonment-[ Indian Law Encyclopedia]

Indian Law Encyclopedia

The meaning to be attached to the word ‘abandoned’ would depend upon the context in which it is used. In the context in which it occurs in S. 418(1), the meaning which can reasonably be attached to the word “abandoned” is ‘let loose’ in the sense of being ‘left unattended’ and certainly not ‘ownerless’. It is the duty of the Court in construing a statute to give effect to the intention of the legislature. If, therefore, giving a literal meaning to a word used by the draftsman, particularly in a penal statute would defeat the object of the legislature, which is to suppress a mischief the Court can depart from the dictionary meaning or even the popular meaning of the word and instead give it a meaning which will ‘advance the remedy and suppress the mischief’. (see Maxwell on Interpretation of Statutes, 11th edn. pp. 221-224 and 266).[Kanwar Singh and others Versus The Delhi Administration AIR 1965 SC 871 ]
 

  • Abandoned child
  • material abandonment
  • Abandonment of marriage and Animus deserendi
  • Abandonment of right
  • ABANDONMENT of work
  • ABANDONMENT of trade mark
  • The question of the ABANDONMENT of trade mark amounted to an express or implied consent was a matter for civil court and cannot be made the subject of a criminal prosecution[The State of U.P. Versus Ram Nath Supreme- Court AIR 1972 SC 232 ]
  • Mere acquiescence, waiver or laches not amounting to ABANDONMENT does not disentitle relief in equity in respect of executed contract.[Sha Mulchand and Co., Ltd
    Versus Jawahar Mills Ltd., Salem-AIR 1953 SC 98 : (1953) SCR 351]
  • ABANDONMENT of service
  • ABANDONMENT of a known advantage or benefit
  • ABANDONMENT of the land
  • ABANDONMENT of settlement by the evacuee
  • Presumption of Abandonment
  • Distinction between Estoppel waiver, and ABANDONMENT
  • Voluntary ABANDONMENT

Reopening of Evidence by Civil Court-[Indian Law Encyclopedia]

Tanmoy
Supreme Court of India in K.K. Velusamy vs N. Palaanisamy, decided on 30 March, 2011, held:-

 

8. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. [Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate- 2009 (4) SCC 410]. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in- chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.

9. There is no specific provision in the Code enabling the parties to re- open the evidence for the purpose of further examination-in-chief or cross- examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re- open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.