WORDS AND PHRASES


“A pactis privatorum publico juri non derogatur" is an accepted principle of interpretation of provisions in England as well as in India --- When the precise and unabiguous words are used in a rule or instruction, then they must be understood and expound limited to their natural and ordinary sense --- The words used best declare the intention of the rule maker. (2002-1)130 P.L.R. 453

“Accident” – The expression "accident" means an untoward mishap which is not expected or desired - Death due to heart attack - By the language used in Section 163- A it is difficult to apply the situation of a person dying in the motor vehicle due to heart attack as resulting also through an accident by the use of motor vehicle. .  (2011-2)162 P.L.R.696

“Acquiscence” - A mere failure to protest --- Is not Acquiscence. (2001-3)129 P.L.R. 837 (S.C.)

“act actus curiae neminum gravabit” - “lex non cogit ad impossibilia - Maxim of equity - Meaning and applicability of.  Held, that the maxim of equity, namely, actus curiae nemineu gravabit - an act of court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilities - the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court.  (2006-1)142 P.L.R. 284 (S.C.)

Actus Reus [Latin, Guilty act.] - As an element of criminal responsibility, the wrongful act or omission that comprises the physical components of a crime. Criminal statutes generally require proof of both actus reus and mens rea on the part of a defendant in order to establish criminal liability. (West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc.). (2016)3 PLRSC 670

Actus reus (/ˈæktəs ˈreɪɪəs/), sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability. (2016)3 PLRSC 670

Actus reus -  Usage -  Insofar as the appellants are concerned, admittedly they have not taken active part in the commission of crime, namely, there is no actus reus. (2016)3 PLRSC 670

“Active confidence” - Indicate that the relationship between the parties must be such that one is bound to protect the interests of the other.  (2006-2)143 P.L.R. 775 (S.C.)

“Actua Curiae Nemi Nem Gravabit" --- The act of court shall prejudice no man. (2005-3)141 P.L.R. 287 (S.C.)

“Actus curiae neminem gravabit" (no person shall be prejudiced by an act of Court). (2008-4)152 P.L.R. 1 (S.C.)

“Agricultural tractor” and “Agricultural trailer” --- Central Motor Vehicles Rules 1989, Rule 2(b) and (c) --- “Agricultural tractor” and “Agricultural trailer” --- All the tractors cannot be taken as agricultural tractors --- The amendments were only intended to benefit the agriculturalists who use the tractors and trailers in the agricultural operations --- All other tractors and trailers are entitled to public carrier permits or renewal of the old permits. Held, that the amendments, are intended only to benefit the agriculturists who use the tractors and trailers in agricultural operations. That does not mean that no tractor or trailer shall be used as goods vehicle. All the tractors cannot be taken as agricultural tractors. Only those tractors which are used for agricultural purposes will come within the definition of rule 2(b) and (c). All other tractors and trailors will be governed by the provisions of the Act and they are entitled to public carrier permits or renewal of the old permits. (1997-2)116 P.L.R. 649

“Any person or authority” --- Do not mean only State as defined in Article 12 or statutory authorities --- These cover any person or body performing a public duty --- Constitution of India, Article 226, 12. (1997-2)116 P.L.R. 320 (F.B.)

“Assumptions or presumptions" --- Are deductions of facts and flight of imagination of human mind --- Flight of imagination may be faulty, assumption or presumption may be alluring or pervasively away from reality. (1999-2)122 P.L.R. 234

“Bachat” or “Surplus land” - Is normally recorded as Jumla Mustarka Malkan Hasad Rasad Khewat - East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948) Section 21.  *2008-4)152 P.L.R. 478

“Bipartite Settlement” --- Service Matter --- Banks --- "Award/Bipartite settlement" --- "Bipartite Settlement" entered into between the bank and its staff, is binding on them --- Neither the bank nor the staff can wriggle out of what has been laid down in the "Bipartite Settlement" --- Banks are commercial institutions --- It is with a view to promote discipline and efficiency that the Bipartite Settlement is providing that unauthorised absence for such a period will bring about automatic abandonment of service --- "Bipartite Settlement" has to be viewed as sacrosanct. (2003-1)133 P.L.R. 474

Casus omissus  -Two principles of construction — one relating to casus omissus and the other in regard to reading the statute as a whole — appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. “An intention to produce an unreasonable result”, said Danckwerts, L.J., in Artemiou v. Procopiou [(1966) 1 QB 878 : (1965) 3 All ER 539 : (1965) 3 WLR 1011 (CA)] (at All ER p. 544-I), “is not to be imputed to a statute if there is some other construction available”. Where to apply words literally would “defeat the obvious intention of the legislation and produce a wholly unreasonable result”, we must “do some violence to the words” and so achieve that obvious intention and produce a rational construction. [Per Lord Reid in Luke v. IRC[1963 AC 557 : (1963) 1 All ER 655 : (1963) 2 WLR 559 (HL)] where at AC p. 577 he also observed: (All ER p. 664-I) “This is not a new problem, though our standard of drafting is such that it rarely emerges.”]”

Cognizance” - Has a reference to the application of judicial mind by the Magistrate in connection with the commission of an offence and not merely to a Magistrate learning that some offence had been committed. (2016)3 PLRSC 883

 “Cohabitation” -  means living together as husband and wife and necessarily does not depend upon sexual inter-course between the husband and the wife but it may not be possible to say that cohabitation would mean only living together and would exclude sexual relationship - Sexual intercourse is one of the elements that goes to make up the marriage but it is not summum bonus -  Hindu Marriage Act, 1955 (25 of 1955) S. 13. (2008-2)150 P.L.R. 298

“Commerce", "Profession", "Domestic", “Commercial” - Explained. (2006-1)142 P.L.R. 468 (S.C.)

“Commercial purpose” --- Consumer Protection Act, 1986 (68 of 1986) S. 2(d) --- Every patient who is referred to the Diagnostic Centre of the appellant and who takes advantage of the CT Scan, etc. has to pay for it and the service rendered by the appellant is not free --- It is also the case of the appellant that only ten per cent of the patients are provided free service --- That being so, the "goods" (machinery) which were obtained by the appellant were being used for "commercial purpose." (1999-3)123 P.L.R. 707(S.C.)

Confession – Meaning - The word 'confession' has no where been defined -  Courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision -  It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive -  Section 26 of the Evidence Act makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate - Therefore, when a person is in police custody, the confession made by him even to a third person, that is other than a police officer, shall also become inadmissible - Indian Evidence Act,  1872,  Section 25. (2016)3 PLRSC 670

“Criminal Contempt” -  Any act by a person which tends to interfere with the administration of justice or which would lower the authority of court . (2010-1)157 PUNJAB LAW REPORTER 80 (F.B.)

“Due diligence” - Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested - Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief - An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient – The term “Due diligence” is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. . (2012-3)167 P.L.R. 93 (S.C.)

“Error of law” is one which can be discovered on a bare reading of the judgment, order or award under challenge alongwith the documents, which have been relied upon by inferior Court, tribunal or quasi-judicial authority. (2001-1)127 P.L.R. 204

“Falsus in uno falsus in amnibus" --- Merely because a person has been found to be not successful on the allegation --- Does not mean that he has to be disbelieved on all the grounds --- The doctrine is not a doctrine applicable in India --- Evidence. Held, that when a part of the evidence of a witness is found to be unreliable, the Court should scrutinise the remaining part cautiously and if the same is found trustworthy, the same can be accepted. This maxim has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called a mandatory rule of evidence. (2003-3)135 P.L.R. 195

“Falsus in uno, falsus in omnibus” --- False in one thing, false in every thing --- Has no application in India and the witnesses --- Cannot be branded as liars --- Evidence. Held, that the petitioner wants to apply the principle of "falsus in uno, falsus in omnibus" (false in one thing, false in everything). It has been held by Hon”ble Supreme Court that the maxim "falsus in uno, falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The said maxim has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be discarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances. Held, further, that therefore the mere fact that the witness has been disbelieved on the question of rate of rent would not be a ground to disbelieve the evidence of the said witness in its entirety. (2005-3)141 P.L.R.495

“Gair Marusi” merely refer to an occupant of land and only if it is accompanied by an entry of payment of rent, in the relevant column of the revenue record, would raise inference of a tenancy. (2013-3)171 P.L.R. 433

“Gratuitous passenger” - Owner of the goods - Means only the person who travels in the cabin of the vehicle –Motor Vehciles Act, 1988. (2208-1)149 P.L.R. 315  (S.C.)

“Home” - Can be a wonderful place to live - But continuous fights between the partners of a marriage disturb the atmosphere at home and create havoc on the members of a family - One does not need a mansion to lead a happy marital home - The foundation of a happy home is love, sharing of joys and sorrows, and not in that sense bricks and concrete - There should be cementing of hearts and not cementing of floors and walls. . (2009-1)153 P.L.R. 113 (S.C.)

“Impartible” in its ordinary sense means “indivisible” --- In the present context it implies an estate that cannot be partitioned --- By virtue of a restraint imposed by custom on grant. (2002-1)130 P.L.R. 8

“In addition to” --- Is synonymous with "also", "more over", "likewise", or "besides" --- The term surely can not be construed as meaning "in lieu of". Held, that, the term "in addition to", is synonymous with "also", "moreover", "likewise", or "besides". The term, surely, cannot be construed as meaning in lieu of" and is rather diametrically opposed to diminution or abatement or abridgment. In other words, what the term "in addition to" signifies is an increase of or accession to, and thus carries out the idea of protecting the reliefs already available. (1997-1)115 P.L.R.D.47

“In derogation of” --- Mean more generally, the act of taking away or destroying the value or effect of anything or of limiting its extent or of restraining its operation. (1997-1)115 P.L.R.D.47

"Incuria” literally means “carelessness”. In practice per incuriam is taken to mean per ignoratium. The courts have developed this principle in relaxation of the rule of stare decisis. Thus, the “quotable in law” is avoided and ignored if it is rendered in ignorance of a statute or other binding authority. Thus, “per incuriam” are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.” State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639 referred in (2018)1 SCeJ 395

“instigation” - Means to goad, urge, provoke, incite or encourage someone to do an act - Indian Penal Code, 1860 (XLV of 1860) Section 107.  (2009-2)154 P.L.R. 798

“Judge” - Certain ancient texts while describing a Judge, it has been laid down that a Judge is also called a “vivaakah” i.e. he who considers the matter from legal spectrum after applying his mind - Be it noted “vivek” means conscience - In another place in smritis it has been said that adjudicator has to decide the dispute with great care and caution after patient hearing - Personal whim or for that matter any individual notion has no place while doing an act of justice which is a facet of Dharma - In Nyaya Shastras, there is reference to the methodology of inference which involves a combination and inductive and deductive logic.  (2013-2)170 P.L.R.  383 (S.C.)

“Jumla Mustarka Malkan Wa Digar Haqdaran” - Land created after applying a pro-rata cut on the holdings of the proprietors in accordance with Sections 18, 23-A of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (54 of 1948). (2013-3)171 P.L.R. 433

“Lawyer”s Office - Commercial or domestic - Whether it is a commercial activity or is it a trade or business - Classifying office of an advocate as a commercial establishment - Electricity Board levying charges of commercial establishments - Order set aside by High Court - Order upheld - Even if uses was not domestic, it may be non-domestic - But it does not automatically become "commercial" - The words "non-domestic" and "commercial" are not inter-changeable - The entry is "commercial" - It is not a residual entry, unless the user is commercial the rate applicable to be commercial user cannot be charged merely because it is not considered to be domestic user - Held - List of consumers who are treated as belonging to the commercial category clearly shows that there is an element of commerce involved in them as would be evident from the Notification. Held,  that a profession activity must be an activity carried on by an individual by his personal skill and intelligence. There is a fundamental distinction, therefore, between a professional activity and an activity of a commercial character. In the above background, we would have dismissed the appeal. But we notice that in New Delhi Municipal Council v. Sohan Lal Sachdev,  2000(2) S.C.C. 494 certain observations are made, with which we do not agree. [The matter referred to a Larger Bench.] Held,  further  that even if it is accepted that the user was not domestic, it may be non-domestic. But it does not automatically become "commercial". The words "non-domestic" and "commercial" are not inter-changeable. The entry is "commercial". It is not a residual entry, unless the user is commercial the rate applicable to be commercial user cannot be charged merely because it is not considered to be domestic user. Madhya Pradesh Electricity Board - Constitution of India, Article 226. (Arijit Pasayat and H.K. Sema, J.) Chairman, M.P. Electricity Board v. Shiv Narayan. (2006-1)142 P.L.R. 468 (S.C.)

“Legal representative”-  Means a person who in law represents the estate of a deceased person and  includes any person intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party shall be a legal representative. (2011-1)176 P.L.R. 296

“Lex non coget ad impossibilra" --- The law does not compel a man to do the impossible.  (2005-3)141 P.L.R.287 (S.C.)

“lex non cogit ad impossibilia” - Maxim of equity - Meaning and applicability of.  Held, that the maxim of equity, namely, actus curiae nemineu gravabit - an act of court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilities - the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court - “act” actus curiae neminum gravabit”.  (2006-1)142 P.L.R. 284 (S.C.)

“likely” --- Andhra Pradesh (Lease, Rent and Eviction) Central Act, 1960 Section 10(2) --- Rent matter --- Impairment --- Word “likely” --- Must be understood as a condition which is reasonably probable that such acts would cause impairment to the value or utility of the building --- However, it is not enough that some impairment has been caused to the building --- The value of the building or utility thereof should have been lessened in a reasonably substantial degree --- Then only can it be said that the acts of waste are likely to impair the value or utility of the building "materially".  (S.C.)

“Lis Pendens” - Means a pending suit; and the doctrine of lis pendens has been defined as the jurisdiction, power or control which a Court acquires over property involved in a suit pending the continuance of the action and until final judgment thereunder. (2008-4)152 P.L.R.D. 19

“Mala fide” --- The expression “mala fide” has a definite significance in the legal phraseology and the same cannot possibly emanate out of fanciful imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bona fide actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same is inaccompany with some other factors which would depict a bad motive or intent on the part of the doer of the act. Held, there must be a positive evidence available on record in order to decry an administrative action on the ground of mala fides and arbitrariness. The ill will or spite must be well pronounced and without which it would be not only unfair but patently not in conformity with the known principles of law. If initiation of a proceeding through CBI can be termed to be a mala fide act then what would it be otherwise when Government acts rather promptly to rescind the notifications --- can it be an action for administrative expediency or is it an action to lay a cover for certain acts and omissions?: We are not expressing any opinion but in the normal circumstances what would be the reaction pertaining to the issuance of withdrawal notifications, the answer need not be detailed out expressly but can be inferred therefrom. (2001-1)127 P.L.R. 262 (S.C.)

“Marketing” - The performance of all business activities involved in the flow of goods and services from the point of initial agricultural production until they are in the hands of the ultimate consumer - In order to make an agricultural produce fit for marketing it may have to be transported or processed, but all the activities involved are understood as amounting to a single activity, namely, marketing, and not independent activities, such as transporting, processing, selling etc. - The marketing functions may involve exchange of functions such as buying and selling etc. – Is different from buying and selling - Income Tax Act, 1961 (41 of 1961) S. 80D(2)(a)(iii). (2009-4)156 P.L.R. 215 (F.B.)

“Maxim falsus in uno falsus in omni-bus” ---  Penal Code, ( 45 of 1860), S. 302 --- Evidence Act (1 of 1872), S. 3 --- Maxim falsus in uno falsus in omni-bus --- Not applicable in India --- Major portion of evidence of witness found deficient --- Residue sufficient to prove guilt of accused --- He can be convicted, notwithstanding acquittal of other accused --- Court should separate grain from chaff.  A.I.R. 2003 S.C. 3617 (S.C.)

“May” - Where the word “may” involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances, a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word “may” should be interpreted to convey a mandatory force. (2008-4)152 P.L.R. 5 (S.C.)

 “may” and “shall” - Use of the words “may” and “shall” may help the courts in ascertaining the legislative intent without giving to either a controlling or a determinating effect - The courts have further to consider the subject matter, the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed.  (2008-4)152 P.L.R. 5 (S.C.)

“Mehr” or “Dower” --- Is an essential ingredient of marriage --- “Dower” is treated as a debt and its payment is intended to be ensured even on the death of the husband ---”Mehr” is a liability of the husband which does not get absolved as a result of any other payment or consequence --- Muslim law. Held, that Mehr or Dower is an essential incident of marriage and its payment is a statutory and moral obligation of the husband. The sum so agreed can be founded on a mutual argument or may be by operation of law. This sum becomes; payable on marriage by the husband to the wife or any time thereafter as agreed. The provisions of the Act do not indicate the scheme of prompt or deferred Mehr. It is also settled principle of law that Mehr is never invalid by reason of its being excessive, unless so specifically provided under the law. Held further, that the “Dower” is treated as a debt and its payment is intended to be ensured even on the death of the husband and if the wife is in possession of the property of her husband, she has a right to utilise such property for adjustment of claim of dower. That being protection available to Muslim women under their personal law and in terms of amounts payable, Mehr is a liability of the husband which does not get, absolved as a result of any other payment or consequence. Held also, the payment of Mehr, thus, being payment as consideration for marriage cannot be consideration for divorce based on the concept of reasonable and fair provision and maintenance to be made and paid by the husband. (1998-1)118 P.L.R. 1(F.B.)

“Mesne Profits” of “property” means the profits which the person in wrongful possession of such property actually received or might have received therefrom with ordinary diligence - The word “property” has been used in this definition which would include immovable as well as moveable property.  (2011-2)162 P.L.R. 729

“Misconduct” --- Is antithesis of the word “conduct” --- Thus, ordinarily the expression “misconduct” means wrong or improper conduct, unlawfully behaviour, misfeasance, wrong conduct, misdemeanour etc. (2002-2)131 P.L.R. 240 (S.C.)

“Misfeasance” (positive action) and “non-feasance” (ommission) --- Meaning of --- Liability under. Held, that there is a distinction between misfeasance (positive action) and non-feasance (omission). Misfeasance is willful, reckless or heedless conduct in commission of a positive act lawfully done but with improper conduct. Non-feasance means non-performance of some act which ought to be performed or omission to perform required duty or total neglect of duty. In the case of misfeasance, the defendant is the author of the source of danger to cause damage due to careless conduct, to the person/property of plaintiff. He has knowledge that the act may give rise to tort but in the case of non-feasance several factors require consideration for giving rise to actionable negligence. (1997-1)115 P.L.R. 785 (S.C.)

“Misfeasance” (positive action) and “non-feasance” (ommission) --- Words and phrases --- “Misfeasance” (positive action) and “non-feasance” (ommission) --- Meaning of --- Liability under. Held, that there is a distinction between misfeasance (positive action) and non-feasance (omission). Misfeasance is willful, reckless or heedless conduct in commission of a positive act lawfully done but with improper conduct. Non-feasance means non-performance of some act which ought to be performed or omission to perform required duty or total neglect of duty. In the case of misfeasance, the defendant is the author of the source of danger to cause damage due to careless conduct, to the person/property of plaintiff. He has knowledge that the act may give rise to tort but in the case of non-feasance several factors require consideration for giving rise to actionable negligence. (1997-1)115 P.L.R. 785 (S.C.)

“Modification” - Word when used in more than one statute may not necessarily yield the same meaning and may be interpreted differently. (2012-1)165 P.L.R. 295 (F.B.)

“Not Proved” and "false" --- Merely not able to prove cannot be in all cases categorised as false.  (2001-3)129 P.L.R. 324 (S.C.)

“Nuisance” --- Every inconvenience cannot become actionable nuisance --- To make it actionable, the nuisance must be of a reasonably perceptible degree. (1999-3)123 P.L.R. 437 (S.C.)

“Nuisance” --- Nuisance as understood in law is broadly divided into two class --- public nuisance and private nuisance --- The former consists of some acts or omissions which results in violation of rights which one enjoys in common with other members of the public --- But the latter, i.e., private nuisance, is one which interferes with a person”s use and enjoyment of immovable property or some right in respect of it. (1999-3)123 P.L.R. 437 (S.C.)

“Nuisance” --- Suffering of damage must be proved in a case of nuisance unless it can be presumed by law to exist --- But the damage to amount to actionable nuisance must be substantial or at least of some significance. (1999-3)123 P.L.R. 437 (S.C.)

“Obiter dicta”  Is the expression of view by a Court on a question of law though raised before it but did not arise for consideration in such a manner that the case could not have been decided unless such question was also answered - It is thus an incidental statement made in a Court opinion that was not required for deciding the case - It may be a superfluous observation without which also the lis could be effectively adjudicated - “Obiter dicta is more or less presumably unnecessary to the decision - It may be an expression of a viewpoint or sentiments which has no binding effect. (2013-1)169 P.L.R. 1 (F.B.)

“Octroi” - Means a cess without a refund on the entry into a city or municipality of goods for consumption use or sale. (2010-2)158 PUNJAB LAW REPORTER 519

“Or” and "and" --- Word “or” is normally disjunctive and the word “and” is normally conjunctive --- These words can be interchanged if the literal reading of the words produces unintelligible or absurd results -- However such a cause cannot readily be adopted. (1997-2)116 P.L.R. 7 (F.B.)

“Ordinarily resides”  - The expression “ordinarily resides” means where the person claiming compensation normally resides at the time of filing the claim petition - Workmens Compensation Act, 1923 (8 of 1923) Section 21(1).  (2008-1)149 P.L.R. 482

“Ostensible owner” - Word “ostensible” according to dictionary means apparently true, but not necessarily so, therefore, ostensible owner would include even the transferee from the State Government or the Union Government, as in certain situations, the Union or the State Government can be held to be real owner and the allottee ostensible owner being recorded as such in the revenue record, though he is actually not the owner, by legal fiction, as cancellation is to relate back to date of allotment.  (2011-1)176 P.L.R.

 “Pichlag son” - Mean a son from a previous marriage and when used in the context of a wife mean a son born to the wife from a previous marriage. (2009-2)154 P.L.R. 388

per incuriam” are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.” State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639

“Possession” - Mere placing of dung cakes and garbage etc. in the suit land does not amount to possession of the plaintiff thereon nor it means dispossession of the defendant therefrom - Admittedly, the suit land is Shamlat land - Consequently, the same prima facie vests in defendant Gram Panchayat. (2014-1)173  P.L.R. 577

“Power of Attorney” - An attestation by a Notary Public is merely a manner of securing an authentication but the power of attorney itself does not require even to be attested - If the plaintiff-Branch Manager was producing the document in original and he was stating that he had the authority to represent the Bank, it ought to have been taken as sufficient proof for upholding the authority for institution of the suit. (2014-1)173  P.L.R. 246

“Precedent “- Ratio of the earlier judgment which will prevail in case of any inconsistency in the two judgments in case of equal benches. (2014-1)173  P.L.R.D.35

“Precedent “– Where there is a conflict in judgments - The judgment of the larger bench is to be preferred.  (2014-1)173  P.L.R. 597

“Precedent” - The ratio of a decision of this Court on a legal issue is a precedent - But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited. (2014-1)173  P.L.R. 779 (S.C.)

“Previous” and “prior” --- Have been taken to be inter-changeable --- Previous means prior and prior means previous. (1998-1)118 P.L.R. 433

“Question of law” - Will not be considered as a substantial question of law, if it stands already decided by a Larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the  Supreme Court - Word substantial, as qualifying “question of law”, means of having substance, essential, real, of sound worth, important or considerable. (2008-1)149 P.L.R. 288  (S.C.)

 “Quia Timet” - Meaning of - Because he fears or apprehends - As an action by which a person may obtain an injunction to prevent or restrain some threatened act being done which, if done, would cause him substantial damage, and for which money would be no or sufficient remedy - Civil Procedure Code 1908 (V of 1908) Order 39 Rule 1, 2. (2008-4)152 P.L.R.D. 66

 “Quia Timet” - Meaning of – Because he fears or apprehends - As an action by which a person may obtain an injunction to prevent or restrain some threatened act being done which, if done, would cause

“ratio decidendi” “obiter dicta” “Sub silentio”, --- Decision of the court which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative --- Precedents sub slientio and without agreement are of no moment --- But doctrine of ratio decidendi would apply with complete force when the judgment provides reasoning and conclusions on a controversy. (2002-1)130 P.L.R. 387 (F.B.)

‘ratio decidendi’ - “The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.”Precedent in English Law by Cross and Harris (4th edn.) referred in (2018)1 SC EJ 395 

“retirement” -  Necessarily means “cessation from public service or a post” meant for serving the affairs of the Union or of a State - Once a Government employee has been assigned some other public duty to perform, solely on a consideration of his previous and original service, it shall, in the service jurisprudence, amount to “extension in service” and would essentially mean that the date of “retirement” of such an employee, for the purposes of retiral benefits, also stands extended to the date of expiry of the tenure of his reemployment.  (2010-1)157 PUNJAB LAW REPORTER 345

“Shall” --- Haryana Panchayati Raj Act 1994 (11 of 1994) S. 160(1) Proviso --- "Shall" --- The word used in the proviso is "shall" and its tenor shows that in no circumstance, the suspension period of a Member, Vice-President or President, as the case may be, can exceed six months from the date of issuance of the suspension order --- In the present case, the period of six months expired long time back --- On this count also, the petitioner is entitled to be reinstated. (1997-2)116 P.L.R. 277

“Shall” - The word “shall” cannot be read either as “may” or “must”. These are three different expressions of law having different meanings and connotations. For “shall” to be construed as “must” the Court has to exercise its judicial discretion is the reason. Reason and record are integral and indispensable ingredients for a judicial order. Must the Court be directed by the command of the legislature to pass a particular order. It would be opposed to the very basic rule of law and public interest. Thus, “shall” has to be understood with its normal limitation in its plain language. Application of mind and the reasoning brings the things to light and render them clear so as to provide aggrieved party opportunity to impugn the said order, fairly --- Haryana Panchayati Raj Act, 1994 (II of 1994) S. 176(4)(b). A.I.R. 2001 Punj. & Hary. 68 [F.B].

 “Shall” - Though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. (2008-4)152 P.L.R. 660

 “Shall” - Word “shall”, though prima facie gives impression of being of mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature and design and the consequences that would flow from the construction thereof one way or the other. (2008-4)152 P.L.R. 5 (S.C.)

“shall”, "may" --- Expression “may” per se is not a word of compulsion, it is an enabling word and they only confer capacity --- May be this expression can be equated to “shall have power” --- But where an authority or a body is given the power to legislate in the discharge of a power delegated to it or the method in which such powers shall be exercised, the words “may” would necessarily lead to some element of compulsion --- Constitution of India, Article 243-R Sub Clause (1). (1999-3)123 P.L.R. (F.B.) 150

“Shall”, "may" and "must" --- Meaning of --- Haryana Panchayati Raj Act, 1994 (11 of 1994) S. 176(4)(b). Held  that having pondered over the scheme of the Act and its object, we see no need to read the word “shall” either as “may” or “must”. These are three different expressions of law having different meanings and connotations. We are unable to find any provision of this Act which would persuade us to take the rebuttal concept on the facts of the present case, for interpretation of the expression “shall”. For “shall” to be construed as “must” we find that the Court has to exercise its judicial discretion for valid and plausible reasons. The foundation of judicial discretion is the reason. Reason and record are integral and indispensable ingredients for a judicial order. Must the Court be directed by the command of the legislature to pass a particular order. It would be opposed to the very basic rule of law and public interest. Thus, “shall” has to be understood with its normal limitation in its plain language. Application of mind and the reasoning brings the things to light and render them clear so as to provide aggrieved party opportunity to impugn the said order, fairly.   Held further  that normally, the expression “shall” counts and leads to the conclusion of imposing an obligation, whereas the Court was provided the largest discretionary powers but it is not decisive factor.  (1999-3)123 P.L.R. (F.B.) 1

“Status Quo order” – Meaning - The term ‘status quo’ means the ‘situation that currently exists’ or the ‘existing state of things at any given point of time’. The Supreme Court in Bharat Coking Coal Ltd. v. State of Bihar, (1987 (Supp) SCC 394 : (AIR 1988 SC 127) has recognised the fact that “the expression” “status quo” is undoubtedly a term of ambiguity and at times gives rise to doubt and difficulty.”  The Court while making an order to maintain status quo, should endeavour to clarify the conditions, in the context of which or subject to which, such direction is issued, as the words status quo takes contextual meaning and may give room for several different interpretations. Let us illustrate. Illustration (i): If a person puts up a construction in his site violating the set back requirements and if the owner of a property approaches the Court seeking an injunction restraining the adjoining owner from proceeding with the construction in violation of building bye-laws and the Court orders status quo, the order may mean that no further construction shall be made and the construction shall be mantained in the same position as on the date of the order. Illustration (ii): If a member of a joint family files an application seeking an injunction in a suit for partition, restraining the kartha from alienating the joint family property and the Court grants an order of status quo, it may mean that the defendant should not alienate the property. Illustration (iii): If a plaintiff seeks an injunction restraining the defendant from harvesting a crop in the suit land and the Court orders status quo, it may mean that defendant should not harvest the standing crop. Ilustration (iv): In a service litigation, if the employee seeks a direction to employer not to terminate his services and the Court directs defendant to maintain status quo, it may mean that defendant should not terminate the service of the employee. An order of status quo is a specie of interim orders, when granted indiscriminately and without qualifications or conditions, leads to ambiguity, difficulties, and injustice. If courts want to give interim relief, they should endeavour to give specific injunctive relief. If grant of order of ‘status quo is found to be the only appropriate relief, then Courts should indicate the nature of status quo, that is whether the status quo is in regard to possession, title, nature of property or some other aspect. Merely saying ‘status quo’ or ‘status quo to be maintained’ should be avoided. If in a suit for injunction, where plaintiff claims that he is in possession of the suit property and the ‘defendant is attempting to interfere with his, possession, and the defendant contends that he is in possession and petitioner was never in possession, if the Court merely directs status quo to be maintained by parties, without saying anything more, it will cause confusion and in many cases even lead to breach of peace. On the basis of such order, the plaintiff would contend that he is in possession and he is entitled to continue in possession; and the defendant would contend that he is in possession and he is entitled to continue in possession. In such a case, if the Court wants to direct status quo, it should specify the context in which or conditions subject to which, such status quo direction is issued. N. Ramaiah v. Nagaraj S. - AIR 2001 Karnataka 395 

 

Sub-letting - (Sub letting) - Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let. Bharat Sales Ltd. vs. Life Insurance Corporation of India (1998) 3 SCC 1 followed in (2018)1 SCeJ 213

 

 

 

“Sub silentio” in literal sense is known as “under silence” - It may be simplified to say that when the later opinion of a superior Court reaches a result contrary to the previous view of the inferior Court or Bench, the latter case by necessary implication overrules sub silentio the previous inconsistent view - Additionally, when a decision is not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue, cannot be deemed to be a law. . (2013-1)169 P.L.R. 1 (F.B.)

“Subsidence” - Means the gradual caving or sinking of a area of land. (2007-4)148 P.L.R. 743 (S.C.)

“Such” -  Is an adjective prefixed to a noun is indicative of the draftsman”s intention that he is assigning the same meaning or characteristics to the noun as been previously indicated or that he is referring to something which has been said before. (2003-1)133 P.L.R. 799 (S.C.)

“Teh Bazari” - Is nothing but a licence to remain in occupation of the land in occupation on payment of requisite fee. (2010-4)160 P.L.R. 500

“Textile” includes a cotton yarn. (1998-3)120 P.L.R. 702

“Till further orders” --- Cannot be interpreted to mean a fixed contractual term. (2005-1)139 P.L.R. 830(F.B.)

“Ultra vires” - Illegalities, irrationality, procedural improprieties, absurd or illogical - Meaning of. (2010-2)158 P.L.R. 126

“Unable to maintain herself” - In the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. (2008-1)149 P.L.R. 262 (S.C.)

“Undue hardship” --- Cannot be equated with the words “unable to pay” --- Punjab General Sales Tax Act 1948 (46 of 1948) S. 20 --- Haryana General Sales Tax Act 1973 (20 of 1973) S. 39(5) --- Appeal. (1997-2)116 P.L.R. 797 (F.B.)

“Undue hardship” --- Haryana General Sales Tax Act 1973 (20 of 1973) S. 39(5) --- Words and Phrases --- “Undue hardship” --- Cannot be equated with the words “unable to pay” --- Punjab General Sales Tax Act 1948 (46 of 1948) S. 20 --- Appeal. (1997-2)116 P.L.R. 797 (F.B)

“Undue influence” --- Pleadings --- Even in the absence of actual words “undue influence” --- There are sufficient averments in the plaint and replication --- There is pleading with regard to under influence.  (2002-2)131 P.L.R. 101:A.I.R. 2002 Pb. & Hary. 147

“Unemployed graduate” -  Did not necessarily mean a man without any means - After all the purpose was to promote self-employment from amongst the class of persons, who in spite of graduation had not secured employment, but by the very nature of things, for a person, who was to run a business with the substantial assistance from Government, it could not be expected that the person must be one who was in a state of penury - Even apart from the requirement that he should be unemployed, there was also a provision in the advertisement itself setting out an income qualification for such unemployed graduate - Therefore the objection that the very fact that he was a lawyer or that he was an Oath Commissioner could not disqualify him. (2012-1)165 P.L.R. 578

Waiver - “In Halsbury’s Laws of England, Vol. 16(2), 4th Edn., Para 907, it is stated:  “The expression ‘waiver’ may, in law, bear different meanings. The primary meaning has been said to be the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may arise from a party making an election, for example whether or not to exercise a contractual right… Waiver may also be by virtue of equitable or promissory estoppel; unlike waiver arising from an election, no question arises of any particular knowledge on the part of the person making the representation, and the estoppel may be suspensory only… Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver, but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it.””Manak Lal v. Dr. Prem Chand Singhvi AIR 1957 SC 425,  (2016)4 PLRSC 669

Waiver  - It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. As Sir John Romilly, M.R. has observed in Vyvyan v. Vyvyan : (1861) 30 Beav 65 : 54 ER 813 13  (Beav p. 75 : ER p. 817) ‘Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim’.” (2016)4 PLRSC 669

 

 

“Warning”, “Censure” “admonish” - Definition of “Warning”, one of the meanings assigned is “admonish” and likewise one of the meaning assigned to “Censure” is “reprimand” - When we see the meaning of expression “admonish” it is clear that it is to caution against danger or error or warn as of something to be avoided - Thus, the aforesaid technical meaning of expressions “Warning”, “Censure” and “Admonish” would show that these are virtually interchangeably used in common parlance them “Warning” and  “Censure” may stand on the same footing. (2011-1)176 P.L.R. 476

 

“Without entering into controversy” --- Does not mean "without prejudice".  (1992-2)102 P.L.R.D. 1.